CAPLING v. HERMAN.

that the plaintiff therein appeared by "James Alexander Carroll," attorney, and that the defendant by "David Home Lizars, his attorney," pleaded not guilty; that the plaintiff took issue upon the plea; and that on the trial before Chief Justice Draper, the parties appeared "by their respective attorneys within mentioned."

This statement in the record is prima facie evidence that the party appeared by attorney and that the latter was regularly constituted. It follows, therefore, that the Court of Queen's Bench must be considered as having acquired jurisdiction over the parties, and by the stipulation the plaintiff in error admitted that the subject matter was within it.

After a somewhat critical examination, we have not been able to discover any fault in the exemplification of the record of the Queen's Bench, and we think it was properly received by the court below, and was rightly considered a basis for recovery there.

The view we have taken disposes of all the questions. presented, and we think that the judgment of the Circuit Court was right, and should be affirmed, with costs.

The other Justices concurred.

17 MICH.-K3.

INDEX TO CASES REPORTED IN THIS VOLUME.

ACCOUNT.

Between partners: See EQUITY PLEADINGS AND PRACTICE, 1.

Effect of rejection.

ACCOUNT RENDERED.

Where the correctness of an attorney's account, for services rendered, was denied by his client and entirely rejected: Held, that, in a suit for the same, he is not precluded from showing their full value, regardless of the account so rendered. -Romeyn v. Campau, 327.

Taking testimony conditionally: Adjournment of examination to another town. The practice of adjourning the examination of witnesses, by the commissioner, to another town from that designated for the purpose, without the consent of parties, is of questionable propriety, and not to be encouraged.

Where, however, a party did not attend at the time and place designated by his adversary for the taking of testimony, and the commissioner, owing to the absence of one of the witnesses, adjourned the examination to another day and another place, within

the county, and, on such adjourned day, proceeded to take the testimony, it was held that, if the party had in any way been injured by the adjournment, his remedy was to apply to the court, on proper showing, to suppress the depositions; and an objection made at the trial to their being read, was properly overruled. Wixom v. Stephens, 519.

ADMINISTRATOR.

As to notice: See BILL OF EXCEPTIONS, 1.

When appointment will not be inquired into: See PROBATE COURT, 1. As to license to sell real estate: See PROBATE COURT, 2.

As to report of: See PROBATE COURT, 3.

ADULTERY.

See DIVORCE, 7, 8.

ADVANCES.

See CONTRACT, 5.

ADVERSE POSSESSION.

See EVIDENCE, 35.

ADVERSE TITLE.

As to use and occupation: See ASSUMPSIT.
See EVIDENCE, 33, 34.

1.

AFFIDAVIT.

Fraudulent Debtor Act: Evidence on which warrant may issue. In a complaint under the fraudulent debtor act, the complainant must set forth such facts and circumstances, within his own knowledge, as will authorize the officer who is to issue the warrant to find such a state of facts as required by the statute to authorize the proceeding. And if the complainant is not himself perfectly cognizant of the facts and circumstances relied.

upon, he must procure the affidavit of some one who is thus cognizant of them.

Such a warrant can not be issued upon hearsay, nor upon any statement, however positive, founded upon hearsay.

The affidavit ought to show upon its face, with reasonable certainty, that the affiant is personally cognizant of the facts set forth.-Proctor v. Prout, 473.

2. What affidavit is insufficient.

3.

An affidavit by the complainant

that his debtors, W. and O. refuse to pay their debt; that O. has left the county, and taken all or part of his property with him to parts unknown to the complainant, or concealed the same; and that W. stated he would not pay the debt, and had taken notes in his mother's name for money belonging to him, and stated that he did it to keep it from his creditors, and that he keeps his property secreted in the name of his wife, as the affiant has been credibly informed, to prevent paying his debts- does not show with reasonable certainty that the affiant is personally cognizant of the facts set forth; and is insufficient. Ibid.

For attachment, requisites of: Debt due. An affidavit for an attachment which avers that defendants " are indebted" to the plaintiff in a certain sum, upon express contract, but which fails to allege that such indebtedness is "due," does not comply with the statute, and is void.

The statute requires the affidavit to show the existence of a present cause of action against the defendant; and to aver that a party is indebted, is not equivalent to an allegation that the demand is due. - Cross v. McMaken, 511.

On motion for new trial: See PRACTICE IN CIRCUIT COURT, 5. Of posting notices: See PROBATE COURT, 3, 6.

1.

2.

AGENT.

Agent: Liability for money paid him for the principal, by mistake. An agent to whom an over-payment has been made through mistake, by the debtor of his principal, and who has paid over the money before notice of the mistake, is not liable to an action by the debtor for such money. - Granger v. Hathaway, 500.

Bona fide purchaser: Set-off. If such over-payment is made npon one of several negotiable notes, given by the debtor, and falling due at different times, and the agent has become purchaser in good faith of one of the notes afterwards to come due, the debtor, when such last mentioned note falls due, is not entitled to set off against it the over-payment made upon the previous note.-Ibid.

See JOINT SALE.