REDMOND vs. STANSBURY.

the hearsay testimony of the witness, J. C. Sharp, and entirely excluding it from consideration, the judgment was not errone. ous, and therefore the plaintiff in error was not and could not be injured by that evidence. If this were not so, it is difficult to see how advantage could be taken of the improper evidence as the return of the Justice stands. It appears that after the hearsay evidence was taken, the defendant's attorney objected, but there is no statement whether that objection was sustained or overruled, or whether that evidence was considered in deciding the case or not. It does not appear affirmatively, therefore, that any erroneous ruling was made upon that objection by the Justice. Error cannot be presumed; it must affirmatively appear, to be considered as error.

The judgment of the Court below must be affirmed, with

costs.

[See Zeller vs. Harris, 1 Mich. Nisi Prius, 75.]

THE MICHIGAN NISI PRIUS.

JULY, 1871.

PATRICK DUHIG VS. NELSON LIPSCOMB,

To give the Circuit Court jurisdiction in case of appeal from a Justice of the Peace, ther must have been a final judgment rendered by such Justice of the Peace.

An order by the Justice "that plaintiff retain the property by paying the charges on them and that defendant pay the costs of suit," is not a final judgment.

Josco Circuit, June, 1871.

W. T. Cummings and Taylor & Wheeler, for Appellee.

John Hurst, for Appellant.

Motion by appellee to dismiss appeal.

By the Court, GRIER. J.--This cause was appealed by defendant from a Justice of the Peace. The action was replevin for a stove and other personal property. The plea, so far as can be ascertained, from the return, set up a lien upon the property claimed, for the amount of freight earned in carrying the property, and for the warehouse charges.

The only judgment rendered by the Justice, was as follows:

"After hearing the evidencc in the above cause, it is ordered by the Justice, that the plaintiff retain the stove and stove pipe by paying the charges on them, and defendant pays the cost of the suit taxed at three dollars and ten cents."

We may infer that the Justice intended to find that the defend

FLANDRES VS. CHAMBERLAIN.

ant had a lien upon the goods, but he has not found the amount of the lien.

No order or adjudication of a Court can be said to be a final judgment if it leaves anything necessary to the execution of the judgment unascertained.

The order in this case is conditional.

The plaintiff may retain the property by paying the charges on it. But how much are the charges on it? The amount of the charges the judgment does not fix in terms, nor give any standard by which they can be ascertained. A disputed point remains unsettled.

A Justice's Court has no power or process to enforce or execute such a judgment.

Again, if the defendant had a lien for his charges, he does not unlawfully detain the property, and the judgment could not lawfully be for the plaintiff, neither could the defendant be required to pay

the costs.

The judgment should have been in form for the defendant for the amount of his lien and costs. But instead of this the Justice makes a decree entirely inconsistent with itself, that the plaintiff retain the property by paying the charges on them, and the defendant pay the costs, whether his charges be paid or not.

In other words, he finds in substance that the writ was wrongfully sued out, that defendant was lawfully justified in retaining possession of the property, but that he should be mulcted in costs for setting up a legal defence.

This is not a mere erroneous judgment, but it is no judgment.—It is only where final judgment has been rendered that a cause can be appealed, and without such judgment the Circuit Court does not obtain jurisdiction.

The appeal must be dismissed with costs.

HORACE FLANDERS vs. HENRY CHAMBERLAIN.

Courts of equity will not entertain a bill to compel offsets of unconnected, independent debts. Relief, by way of compelling set-offs, will only be granted where it appears that the accounts or claims of the parties are mutual and dependent.

Cass Circuit, June, 1871.

FLANDERS US. CHAMBERLAIN.

The bill in this cause was filed December 2d, 1868. The complainant alleges, that on the 29th day of February, 1968, he was enployed to farm the lands of the defendant; that to enable him to carry on the farm, the defendant sold him certain personal property, and became surety for him by signing notes given to other persons for personal property bought of them; that the amount of both liabilities so created was about $850 00; that to secure the defendantthe complainant executed to the defendant a chattel mortgage upon certain personal property. The complainant further alleges that the notes sigued by the defendant as surety, have been paid by him; that the debts due the defendant, were as follows: One promissory note of date December, 1866, for $110, due October 1st, 1868, with interest at ten per cent-the consideration thereupon being a certain sorrel horse, mentioned in the mortgage referred to. One note for $220 50, due, without interest, December 1st, 1868, and one note for $107 00, dated February, 1868, and due, without interest, January 1st, 1869, the consideration for which, was the wagon described in said mortgage. The complainant further alleges that on the 11th of November, 1868, there was due on the notes to the defendant, about the sum of $446 66; that on the same day the de. fendant was indebted to him upon an award, dated November 5th, 1868, $365 22, payable on the said 10th day of November; that to satisfy the chattel mortgage by the payment of said three notes, he, on the said 10th day of November, tendered the defendant the sum of $365 22, by offering to offset the same to that amount on complainant's indebtedness to him, and the further sum of $81 44, the balance then due him on said mortgage, by offering to him the sum of $90 00 in legal tender notes, requesting him to take balance due him out of said sum, which, he alleges, the defendant refused to accept, and that he thereupon sold to one Conden. the wagon mentioned in the mortgage. Nevertheless, the complainant claims that the defendant conspired with one Huntley, and one Burdick, and that they, on the 20th of November, 1868, took and carried away the wagon from the possession of said Conden, and one gray horse, one sorrel horse and one set of harness, some of the property described in said chattel mortgage, and secreted the same; that on the 28th of November, 1868, Huntley gave the complainant notice of the sale of the property, a copy of which is annexed to the bill.-

FLANDERS US. CHAMBERLAIN.

The bill further sets forth that on the 30th of November, 1868, the defendant took possession of forty fat hogs, (parcel of fifty hogs mentioned and included in said mortgage,) by virtue of said mortgage, and that he held them with the intent of selling or otherwise disposing of them that the value of the property taken by defendant was $S15 00. The complainant alleges that the horses, harness. wagon, and his undivided interest in the forty fat hogs, were then free and clear from the lien of the chattel mortgage, and that the taking them from the town of Jefferson, where they then were, to the township of Howard, and there offering them for sale, was contrary to the terms of the mortgage, and was done for the purpose of oppressing and defrauding the complainant. The complainant prays that the Court decree that the lien of the mortgage upon the property so taken be declared satisfied and discharged, and that the defendant be ordered to return the property, and that he be enjoined from selling or disposing of the horses, harness, wagon, and the complainant's undivided half interest in the forty fat hogs. An injunetion was thereupon granted, but on the coming in of the answer was dissolved.

The answer states the indebtedness of the complainant, admits the taking of the property by virtue of the mortgage, but denies that he was indebted to the complainant on an award to the amount of $365 22, on the 10th day of November, 1868. The answer further states that the defendant is worth at least ten thousand dollars.

Daniel Blackman and Edward Bacon, for complainant, in support of the position that this is a proper case for the exercise of equity jurisdiction, say:

"There is no doubt that relief exclusively equitable is prayed for by the bill, to wit: the extinguishment or cancellation of the mortgage. Cancelling writings, is that from which Chancery derived its name.

"The tender was after default in the mortgage, when by the cases cited on the defence, the only relief was in equity. See cases cited by defendant's counsel, Tannahill vs. Tuttle, 3 Gills, p. 110; Van Brunt vs. Wakele, 11 Mich. Rep., 177; Story's Eq. Pr., Sec.

1031.

The whole nature of the case is such as shows oppression equal to fraud, from which relief is sought.

There is no demurrer or claim of advantage equal to demurrer,