Miller vs. Chaffee. Several other objections were raised upon the argu- [257*] ment, which it is not necessary to notice. It must be certified to the circuit court for the county of Wayne, as the opinion of this court, that the plaintiff is entitled to judgment upon the demurrer, and that the defendant answer over. Certified accordingly. MILLER VS. CHAFFEE. Disputed questions of fact cannot be reviewed, on a writ of error brought on a judgment of the circuit court affirming, on certiorari, a judgment of the county court. ERROR to Wayne Circuit Court, on a judgment of that court affirming, on certiorari, a judgment of the county court. Bishop, for plaintiff in error. Van Dyke and Emmons, for defendant in error. By the Court, MILES, J. The question is, whether, upon this writ of error, we have anything to do with the disputed questions of fact, determined by the county court. A writ of error is said to lie only upon matters of law arising upon the face of the proceedings. 2 Chit. Black. 406. By the statute, a review of the proceedings and judgment of the county court may be had upon certiorari; and the circuit is in such case required to give judgment in the cause as the right of the matter shall appear, without regarding technical omissions, etc., which did not affect the merits. It is not our intention, inasmuch as it is not necessary in this case, to define the extent of the jurisdiction of the circuit NOTE. In Teller v. Wetherell, 6 Mich. 46, it was held that the supreme court on the common writ of error has jurisdiction of errors of fact, and might issue a venire for a jury to try them or remit them to the circuit court for trial; while in Higley v. Lant, 3 id. 612, and Bromley v. People 7 id. 472, it is said that the case can be reviewed on errors of law only, not on conflicting testimony. Miller vs. Chaffee. court under the statute; but we refer to it for the purpose of introducing a decision of the supreme court of the state [258*] of New York, showing the views there entertained under a statute with a similar provision. By that statute, a court of common pleas was authorized to review upon certiorari the judgments of a justice of the peace, and to decide according to the justice of the case, disregarding matters of form, which did not affect the merits. In the case of Whitney v. Sutton, 10 Wend. 412, the common pleas having reversed the judgment of the justice recov ered by the plaintiff below, he sued out a writ of error, returnable in the supreme court, which brought up the record of the common pleas containing the justice's return. From that return it appeared that the questions raised before the justice were both of law and fact. The court there say, SAVAGE, Ch. J., " with the questions of fact which were disputed, we have nothing to do; upon a writ of error we can correct errors of law only." And, further, "whether the decision was according to the right of the case, was a proper question to be reviewed by the common pleas, and is not a proper question for review by this court." As we have before said, we do not now pretend to determine the proper mode of reviewing questions of fact by the circuit court, but solely to declare that this statute has not conferred upon this court any additional powers, or required from it the performance of any other duties than before existed at common law. There being, then, no error found in the judgment of the circuit court, the same must be affirmed, Judgment affirmed. 318 Austin vs. Strong. *AUSTIN VS. STRONG. [259*] Where an affidavit for an appeal from the judgment of a justice, under sec. 2 of the act, Ses. L. 1845, p. 98, was made by an attorney of the party and stated, that plaintiff recovered five dollars more than was justly and honestly due him, as deponent believed, from the facts and evidence in the cause, which were fully communicated to him, it was held sufficient. The recognizance for an appeal under the act, Ses. L. 1845, p. 98, must be taken before the justice by whom the cause was tried. CASE submitted by agreement of parties. This cause was originally By the Court, WHIPPLE, C. J. commenced before a justice of the peace, and was by appeal taken to the circuit court of the county of Wayne. A motion was made in that court to dismiss the appeal, on the ground of the insufficiency of the affidavit and recognizance required by the statute. The circuit court deeming the affidavit insufficient, dismissed the appeal. The parties, by their counsel, having waived the issuing of a writ of error, have agreed to submit the record to this court, in order that the decision of the court below might be reviewed. The second section of the act of 1845, amendatory of the justices' act of 1841, provides, that "no party against whom a judgment has been rendered by a justice of the peace, upon any claim arising upon contract, express or implied, shall appeal therefrom to the circuit court, unless such party, his agent or attorney, shall within five days after the rendition of such judgment, make and present to such justice an affidavit, alleging therein that the party recovering such judgment had recovered therein at least five dollars more than was justly and honestly due such party.” NOTE.Distinction between defects in affidavit for appeal taken before justice who tried the cause and before another officer, further considered in Dickenson v. Simondson, 25 Mich. 113. Austin vs. Strong. It is objected to the affidavit, that it does not appear that the attorney was ever fully advised by the defendant of [260] the merits of the case; *or that all the facts and evidence were elicited on the trial before the justice, or that the attorney was present at the trial and heard the evidence. I think it could never have been intended by the legislature, that when the affidavit was made by an agent or attorney, that should swear positively that the prevailing party recovered five dollars more than was honestly and justly due him. This could not, in the nature of things, be done, except in cases where the agent or attorney had a personal knowledge of the facts. Generally, however, the attorney does not possess this personal knowledge, but derives the facts from his client, upon whom he must necessarily rely. The affidavit in this case, after stating that the plaintiff recovered five dollars more than was justly and honestly due, concludes as follows: "As deponent believes, from the facts and evidence in the cause, which are fully communicated to him." The qualifying words, "as deponent believes," are unobjectionable for the reasons already given. Had the affidavit concluded with these words, no question could have been raised respecting its sufficiency; it would have been a substantial compliance with the statute. But this belief is said to be founded on insufficient grounds. It is true, that the attorney does not, in words, swear that the facts were communicated to him by his client, or that he was present at the trial before the justice, and heard the evidence. But is not this fairly implied? The facts in the cause, and the evidence in the cause, are stated in positive terms to have been communicated to the attorney. From what source and in what manner did he derive a knowledge of those facts, and of the evidence in the cause? We must necessarily consult our experience in determining this question. With respect to the facts, as I have already said, they are usually derived from the client. But another and a more satisfactory mode of ascertaining them is, from Austin vs. Strong. the evidence given on the trial of the cause, when the facts are communicated under the sanction of an oath. Although it does not affirmatively appear in the affidavit that the attorney was present at the trial, yet I think it is fair to infer that such was the fact indeed, the inference is supported by the return of the justice, which shows that the defendant did appear, by his attorney, Mr. Lothrop. But I am inclined to think that it is not necessary to state how the facts were made known to the *attorney; it is sufficient if he swears that the [261*] facts have been communicated to him; if it should af terwards appear that they had not been communicated to him, he would render himself liable in a criminal prosecution. If, as contended by the plaintiff, it is a fair construction of the affidavit to say, that the facts were only made known to the attorney, through the medium of the evidence rendered on the trial before the justice, I still think the attorney might well act upon the facts thus disclosed, in forming an opinion as to whether or not the plaintiff had recovered more than was justly and honestly due to him. It may be true, that all the facts might not have been elicited on the trial, but the fair presumption is, that the plaintiff adduced all the proof which he could command in support of his right to recover. However this may be, the attorney has sworn that, according to his belief, the plaintiff recovered five dollars more than was honestly and justly due to him, and that this belief was founded on the facts and evidence in the cause, which were fully communicated to him. Upon the other question raised by counsel, I am of opinion, that, under the act of 1845, the recognizance can only be taken before the justice by whom the cause is tried. This the statute clearly contemplates. Section 4 provides, that the party appealing shall, at the time he enters into a recognizance," pay to such justice the costs of the suit, and one dollar for making and filing his return." How can the appellant pay the costs etc.," at the time of entering into the recognizance," unless it be entered into before the justice by whom the cause was tried? But the fifth section is more decisive of the question: it pro VOL. I.-21 321 |