JULY TERM, 1867, AT LANSING.

Abraham D. Peck v. Chas. H. Cavell, Jr.

Justice's Docket: Execution: Request of Plaintiff. It is not necessary that a justice's docket should show that an execution was issued at the request of a plaintiff, as that is always to be presumed.

When the docket entries comply with the statute, the ordinary presumption in favor of the correctness of official action must support the proceedings. Execution in Justice Court, when returnable: Sunday. An execution may be law fully returned by the officer on the sixtieth day from its date-that being the return day-unless such day should be Sunday, in which case the return would be void.

Transcript from Justice's Judgment: Requisites before filing. A transcript from a justice's judgment cannot be filed in the Circuit Court unless it be certified to by the Justice, together with an affidavit attached of the amount due upon the judgment.

Error to Livingston Circuit.

Heard July 9th. Decided July 11th.

This was an action of ejectment brought to recover the possession of certain lands in Hamburg, Livingston County.

The defendant set up a title based upon sales on two executions issued on transcripts of Justices' judgments, and filed in the Circuit Court.

Objections were made to the admission of said transcripts on the trial in the Circuit Court on account of several defects appearing in said transcripts, and which are stated in the opinion.

Judgment was rendered for defendant in the Court below.

16 MICH.-B.

PECK V. CAVELL, JR.

Norris & Uhl, for plaintiff in error.

1. The statutes regulating transcripts of Justices' judgments being contrary to the course of the common law and ex parte, will be construed with the utmost strictness; and the proceedings of creditors acting in pursuance of such statutes, should be scrutinized closely, to prevent gross injustice and overreaching.-3 Mich. 198; 5 Id. 98.

The transcript in this case is defective because,

a. It does not appear that the justice was requested to issue executions on the judgments sued upon, previous to giving transcripts.-Comp. L. § 3789.

b. The executions should not have been returned till after the 60th day. In this case the debtor should have had the whole of that day to pay in.-Comp. L. §§ 3786, 3789; 10 Mich. 496; 8 Cow. 260; 2 Id. 605; 6 Id. 659; 2 Hill, 356.

C. It does not appear by affidavit, what was due upon the judgments.

d. The return of the execution was made upon Sunday, and is therefore a nullity.

0. Hawkins, for defendant in error.

COOLEY J.

The plaintiff having shown a prima facie right in himself to the recovery of the premises in question, the defendant sought to defeat that right by showing sales on two executions against the plaintiff, issued on transcripts of justices' judgments which had been filed in the Circuit Court. A portion of the premises was sold on each of the executions.

The statute only authorizes a transcript to be filed in the Circuit Court after execution has been issued by the Justice and returned unsatisfied; and it is objected that