GIDDINGS US. WHITTLESEY AND CHTITEN EN.

By the Court, BROWN, J.-Of the several grounds of error alleged in this case, I deem it necessary to consider none but the first, as that is decisive. One of the elements of a sentence is that it be final and conclusive. The judgment pronounced by the Court is the sentence or conclusion of the law following upon ascertained premises, and must therefore be unconditional In this case the sentence is uncertain, and the respondent's imprisonment is to depend upon a condition precedent-the payment or non-payment of the fine and costs within a certain number of days. To determine whether the fine and costs were paid within the time limited, would require another adjudication ; a second judgment.

A sentence must be something more than a judgment nisi. Had the judgment of the Justice been that the respondent pay a fine of five dollars with costs taxed at $24 83, and that he be committed to the county jail until the same should be paid, not exceeding ten days, I have no doubt but that such a judgment would be valid-at least it would not be invalid on the score of uncertainty. The sentence would be certain and definite; the imprisonment in such a case is designed to secure the payment of the fine and costs and not to be in lieu thereof. See S'ate vs. Bennett, 4 D ́v. & Batt., 43; Matter of Sweetman, 1 Cou.. 144.

The judgment of the Court below must be reversed.

GIDDINGS rs. WHITTLESEY AND CHITTENDEN.

Ad fendant sued here in assumpsit on a judgment rendered in Ohio on a cognovit may prove, under the plea of the general issue, any defence which in that State would be a good ground for setting aside the judgment, or an order to deliver up the cognovit to be cancelled.

Clapp, for Plaintiff.

Berrien Circuit, October, 1871.

Ormsbee & Muzzy, for Defendant Whittlesey.

Assumpsit on a foreign judgment.

By the Court, BLACKMAN, J.-The plaintiff sued the defend

GIDDINGS US. WHITTLESEY AND CHITTENDEN.

ants in assumpsit on a judgment of the Court of Common Pleas of Portage County Ohio.

To this, defendant Whittlesey who was the defendant served with process, pleaded the general issue.

By adopting this form of action the plaintiff subjected his cas to all the rules of law relating to pleading and evidence in assumpsit. The judgment counted on creates the liability, which forms the consideration of the promise. 1 Sanders on Pl. & Ev., 113. Our statute, § 4550, does not in express terms make any change in the rules of pleading. Gooding vs. Hingston, 20 Mich., 440.

The judgment counted on, when in evidence, proves all the allegations the plaintiff is bound to make out by proof in order to re

cover.

The effect of our statutory plea of the general issue is to require the plaintiff to prove all of his alleg tions which entitle him to a recovery according to the form of action he has adopted.

375.

9 Mich.,

Under his plea the defendant may prove without notice in this action a want of consideration Ih short he may disprove every allegation the plaintiff must prove. 1 San. Pl. & Er., 138; 2 Id.,

720.

The judgment when introduced in evidence is as conclusive as when pleaded as an estoppel or counted on. 1 Green. Ev., § 531. And this is so because of the intrinsic force of the judgment as a res adjudicata.

This conclusiveness depends on the nature of the record and on the tribunal. Eliott vs. Green, 10 Mich, 116.

17 Conn, 505, 508, 510;

It has no higher dignity here than in the State of Ohio, and if inquirable into there it will be open to investigation here to the same extent, according to our rules of practice. Wood rs. Watkinson, Bonestel vs. Todd, 9 Mich., 376. It is always competent to inquire into the jurisdiction of the Court, and if it is acquired by fraud the judgment is void. Vose rs. Morton, 4 Cush, 27; Bank of U. S vs. Moss., 6 How., 39.

From the record in this case it appears that this court was one of general jurisdiction; that the cause of action was a money bond signed by both defen lants, a cognovit actionem in the usual form, both dated June 3, 1860; that the suit was begun by process No

GIDDINGS US. WHITTLESEY AND CHITTENDEN.

vember 9, 1867, by filing a petition and praecipe, which process was returnable November 18th, 1867, and was indorsed with a notice that in case the defendants did not appear by December 7, 1867, judgment would be taken for 8462 32, and was served on Chittenden December 12th, but not on Whittlesey, who had resided in this State since 1863, and was returned; that on the same day plaintiff took judgment by confession for $502 80 and costs, under the cognovit, and that this plea confessed the truth of the petition filed as commencement of suit by process.

The Court must presume in absence of proof to the contrary that the principles of the common law prevail in Ohio. That therefore it may look at the record for the purpose of determining the judgment. 20 Mich., 440; cases cited in note 4, to sec. 541 of 1 Gr. Ev.

The defendant may disprove the jurisdiction. Shumway es Stillman, 6 Wend., 447.

While from the nature of the case the defendants can not dispute the judgment by plea and evidence directly, the plaintiff must strictly pursue his power of attorney, and the defendants may attack it by motion and a trial of a feigned issue. See 5 Hill, 497; 9 John. 79.

The judgment being subject to revision in the State where rendered is subject to revision here, but as the record is not of this court, the defence which might in Ohio have been tried on a feigned issue, may be here tried in a suit brought on the judgment.

For the conclusiveness of a judgment depends on the fact that it was rendered on a trial of the merits where the defendent had an opportunity to litigate. The court could obtain no juisdiction over the person by the use of a void power of attorney nor by the braudulent use by the plaintiff of a valid one; nor where the power is not strictly persued. Gr Practice.

For these reasons, the defendant W. was allowed to prove that plaintiff on payment to him of two per cent. additional interest over the lawful rate by defendent Chittenden, extended the time of payment without W's knowledge or consent from year to year till June 1867; that in the spring of 1867, C. became insolvont and went into bankruptcy and that W. was security on the bond for C., said plaintiff well knowing the same.

This is a defence to the action on the bond here, and in Ohio would support a motion to set aside the judgment. 1 San Pl. & Ev 527.

SUPPLEMENT.

Abstracts of Decisions of the Supreme Court, rendered at the October Term, 1870.

[Equity cases, involving only questions of fact, will not be published in these reports.]

ADAMS VS. CHURCH.

Interlocutory order-no appeal from.

Error to Calhoun Circuit.

CAMPBELL, C. J.-The writ of error was brought on an order discharging a capias. The writ was issued December 9, 1869, returnable on the first Monday of March, 1870, and the defendant was arrested on it immediately. March 19, 1870, defendant, by his attorney, moved to set aside and dismiss the writ, to set aside the order to hold to bail and that the defendant be discharged from arrest. March 21, on motion of defendant, proceedings were stayed for two weeks. July 11, 1870, plaintiff declared. July 18, the Court ordered that the capias be discharegd, the order to hold to bail be set aside, and defendant be discharged from arrest, on condition that he should stipulate not to bring suit for his arrest. The next day he filed such a stipulation and no further proceedings appeared.

The order of the Court was an interlocutory order and not a judgment. It cannot therefore be brought to the Supreme Court on a writ of error and the case must be dismissed for want of jurisdiction.

BAY CITY AND E. S. R. R. Co. vs. AUSTIN.

THE BAY CITY AND E. S. R. R. Co. vs. AUSTIN.

The law imposes the duty of maintaining a fence, upon the owners and occupants of a railroad respectively, as well as upon the company first organized, and without confining it to either.

A law providing for the recovery of double damages, was repealed after the rendition of a verdict, but before the entry of judgment thereon. Held, in such case that judgment should be for single damages only.

Error to Saginaw Circuit.

Opinion by GRAVES, J.-Aug. 12, 1868, a horse belonging to Austin was run over and killed by an engine of the Flint & Pere Marquette Company, on the road of the plaintiffs in error and this suit was brought to recover for the injury. June 22, 1869, a verdict was given in his favor for $212 04, and Oct. 9, thereafter the Court awarded judgment for double that sum.— While the plaintiffs in error owned the road, the other company finished it and exclusively operated it, and the horse was killed by their engine while using the road under a contract.

By the statute as amended, S. L., 1867, p. 221, railroad corporations and persons owning or occupying any railroad in this State, are required to keep up fences, cattle guards, farm cross ings, &c.; and the corporations, persons and agents who may occasion injury to animals where such fences, &c., have not been erected, on the line of such roads, are made liable in double damages. And after such fences, &c., are built, persons leading or driving animals on such road at other places than at farm crossings, are liable to a penalty not exceeding ten dollars.

Plaintiffs in error objected to the recovery, on the ground that under the law, as amended, they could not be held liable, because the Flint & Pere Marquette Company were not their agents within the meaning of the statute.

This claim of the plaintiffs in error is not sustained.

The amendment of 1867 intended to impose the duty of maintaining a fence, upon the owners and occupants of a railroad respectively, as well as upon the company first organized, and