PROCTOR v. PROUT.

belonging to him, and stated that he did it to keep it from his creditors." In form, this is a positive statement of facts, but when carefully examined and construed, with reference to its object and purpose, it is so in form only. As to the statements here attributed to Proctor, there is nothing in their nature from which we can reasonably presume that, if made, they were made to or in the hearing of the affiant, and he has not stated them to have been so made, nor to whom nor on what occasion they were made. If these statements were made to the affiant, or in his hearing, he would naturally have said so, instead of merely saying, in the most general form possible, that "he stated" so and so, without mentioning to whom, or where, or when. This singular silence and reserve, in a case where, if the statements were made to him or in his hearing, it would much better and more certainly have effected his purpose to have said so, seems to indicate special care and caution on the part of the affiant, to avoid saying that the statements were made to him, or in his hearing, or to whom, or on what occasion they were made.

As he was making the affidavit ex parte, to satisfy the Justice of the necessary facts on which to obtain a warrant, we may take it for granted that he stated his case as strongly as he thought the facts would warrant; and that if the statements had been made to him, or in his hearingas this would make out his case beyond dispute, while the general statement might leave it at least doubtful-we may take it for granted he would so have stated his case, if the facts would warrant it. Under such circumstances, in giving a construction to his affidavit, we can not properly construe this general statement as a declaration on his part, that he was personally cognizant of the statement alluded to. Hence we can not treat these general statements as proper evidence upon which the justice could act in granting the warrant.

PROCTOR v. PROUT.

There is another reason why the affidavit in giving any statements of the defendant should state to whom or on what occasion they were made. By the seventh section of the act, the defendant on being brought before the justice, "may controvert any of the facts and circumstances on which the warrant issued, and may, at his own option, verify his allegations by his own oath." How could defendant produce witnesses to disprove these general allegations? However false they might be, they do not admit of contradiction by witnesses. And even if he is to controvert them by his own oath - which he cannot be compelled to resort to-fairness to him requires that the allegations of his statements should be more specifically made.

The allegations of the affidavit as to defendant's statements being rejected, the other allegation that "the defendant took notes in his mother's name for money due to himself," if not equally open to the same objection, has no bearing upon any case made by the affidavit for a warrant; as there is no allegation that defendant had ever been requested to apply this money or the notes upon the judg

ment.

We think the justice acquired no jurisdiction by the affidavit as against William H. Proctor, and that all the proceedings under the warrant were void.

The judgment or determination of the justice must therefore be reversed, with costs of both, courts to the plaintiff in the certiorari.

The other Justices concurred.

SMITH v. FIRST NATIONAL BANK OF TECUMSEH.

Simeon B. Smith v. First National Bank of
Tecumseh.

Tax upon capital stock of national banks. A specific tax, laid by the state "upon the capital stock paid in" of the national banks, is directly opposed to the law of Congress upon that subject; and is, therefore, void.

Costs in an amicable suit. In an amicable suit to test the validity of a statute, it is proper to deny costs to the prevailing party.

Error to Lenawee Circuit.

Heard and decided January 11th.

The legislature of 1867, passed an act-Sess. L. 1867, vol. 1, p. 163—which provided that each bank and banking association, organized under the laws of the United States, doing business in the State of Michigan, should pay an annual specific tax, to the state, of one per cent. upon the capital stock paid in of said banks, less the value of the real estate owned by said banks, which should be in lieu of all other taxes upon said banks, or the shares thereof held or owned by individuals; except that the real estate held or owned by said banks should be subject to taxation like other real estate.

The defendant in error in this suit refused to pay the tax assessed under this act, and the Auditor General issued to the plaintiff in error, who was sheriff of Lenawee County, his warrant for the collection thereof. Thereupon the plaintiff in error, by virtue of such warrant, levied upon currency belonging to the bank, sufficient to satisfy the tax and the fees for collection, and in order to test the legality of this levy, a case was agreed upon by the parties, and submitted to the court below, presenting the question whether the bank was entitled to recover of the sheriff the amount of the currency levied upon as in an action of trespass. The court below gave judgment for the bank.

THE PEOPLE v. TREADWAY ET AL.

D. May, Attorney General, for plaintiff in error.

A. L. Millerd, for defendant in error.

BY THE COURT:

The Act of Con

This case is too plain for argument. gress under which the national banks are organized allows the taxation by the States of the shares of stock in the banks, but not of the capital stock itself. The decisions by the Supreme Court of the United States in Van Allen v. The Assessors, 3 Wall. 573; People v. Commissioners, 4 Id. 244, and Bradley v. People, Id. 459, fully cover the case. The judgment must be affirmed.

Mr. Millerd, asked for costs, but the Court held that in an amicable suit like this to determine the validity of a statute it was proper not to award costs.

Motion denied.

The People v. Alfred Treadway et al.

County Clerk: When liable on bond for Jury and entry fees: Presumption. The county clerk is only responsible for the entry and jury fees actually paid to him; and while the entry of a canse upon the calendar is prima facie evidence of the payment of the fees prescribed by law, yet if it is made to appear that no such payment was made, the presumption ceases.

Jury Fee: Demand for Jury: Presumption. As regards jury fees, there is no room for presumption for or against the jury having been claimed by a party, or summoned at the instance of the court without such claim, since the record must show all the facts; and presumptions are never allowable when better evidence of a primary nature is required by law to be preserved.

County Clerk: Official bonds: Sureties. When the county clerk fraudulently countersigned and filled up a warrant upon the treasury, which had been signed in blank by the chairman of the Board of Supervisors, and drew the money thereon: Held, that while this was a misuse of his official anthority, it was nevertheless an official act, and the sureties of the clerk were liable upon his official bond, to pay the amount overdrawn.

Heard January 7th. Decided January 11th.

THE PEOPLE v.

TREADWAY ET AL.

Error to Oakland Circuit.

This was an action of covenant brought on a bond, given by defendant Treadway, with sureties, as County Clerk of Oakland County. The bond on which suit was brought, was dated December 16, 1852, conditioned that "if the said Alfred Treadway shall faithfully, truly and impartially perform all the duties of his said office, and shall pay over all moneys that may come into his hands as such clerk, etc."

The pleadings and record show that Treadway entered upon the duties of his office in January, 1853, and held the same until December 31, 1855, and while he held the office he received public money to the amount of $600 and upwards, which he had neglected, and refused to pay over, being money received as entrance and jury fees.

Also, that said Treadway, as such County Clerk, filled out an order, payable to himself, for $100; and on such order drew the sum of $100 from the County Treasurer: And that the same was an overdrawing of his salary, as County Clerk, for that sum.

Upon the trial of the cause, the plaintiff proved that Treadway had received a large amount of money as entrance fees and jury fees, which he had not paid over, as is required by law. And, also, that he overdrew his salary to

the amount of $100.

The errors assigned are:

1. That the court charged that the legal presumption was that the clerk received the fees in all cases where the law required an entrance fee to be paid; and, also, in all cases tried by jury in which the law required a jury fee to be paid.

2. That the court charged the jury, that the act of Treadway in overdrawing his salary ($100) was an official act for which Treadway was liable, and also his bail.

Judgment was rendered for the plaintiff.