RULE 120.

On presenting the petition to the Court, an order may be entered referring it to a Master, to be designated in the order by name, to ascertain the truth of the facts stated in the petition. The Master shall take proof of the age of the infant, the value of the infant's interest in each piece of real estate proposed to be sold, and of the circumstances that render a sale necessary or proper, and of the sufficiency, under the 121st rule, of the sureties offered by the guardian, or of the land proposed to be mortgaged by way of security, which proof shall be attached to his report; and he shall in his report certify whether the proposed guardian is a suitable person for this purpose, the age of the infant, the sufficiency of the sureties, the penalty of the bond required to be given by the guardian under the said 121st rule, the value of each piece of real estate proposed to be sold, and his opinion as to the necessity or propriety of a sale of the whole or any part thereof, for the benefit of the infant; and that such sale will not be against the provisions of any will or conveyance, if any, by which such real estate was devised or granted to such infant; and if he is not satisfied with the person named as guardian, or with the security proposed, he may name a suitable person as guardian, and [*xii] state what other or further security should be given.

RULE 121.

The guardian must give a bond, with two sufficient sureties, in a penalty of double the value of the real estate to be sold, including interest, on such value during the minority of the infant, each of which sureties must be worth the penalty of the bond, over and above all debts; or a bond of the guardian only, secured by a mortgage on unincumbered real estate, of the value of the penalty of such bond.

RULE 122.

To every commission for the examination of witnesses out of the State, a copy of this rule shall be annexed, as instructions to the commissioners on the execution of the commission.

1st. Any one of the commissioners may execute the commission.

2d. The witness, before he is examined, must take an oath or affirmation, to be administered by the commissioner, that the answers to be given by him to the interrogatories annexed to the commission, shall be the truth, the whole truth, and nothing but the truth.

3d. The examination of the witness must be reduced to writing by the commissioner, or by some one in his presence, and under his directions; and must be signed by the witness, and certified by the commissioner, as follows:

"Examination taken, reduced to writing, and sworn to (or affirmed) this before me, A. B., Commissioner."

day of

4th. Exhibits must be annexed to the deposition of the witness, and be signed by him and the commissioner.

5th. The commissioner must subscribe each sheet of [*xiii] *the deposition, annex the deposition and exhibits to the commission, and indorse his return on the back of the commission.

"The execution of this commission appears in certain schedules hereunto annexed. A. B. Commissioner."

6th. The commissioner must enclose the commission, interrogatories, deposition, and exhibits, in a packet, and bind it with tape, and set his seal at the several meetings or crossings of the tape, and direct it-To Register of the Court

of Chancery of the State of Michigan, at -"

7th. He must then deposit the commission in the Post Office, unless there are written directions on the commission to return the same in another way.

RULE 123.

The Register, on the commission being returned, shall open it, and indorse thereon the time and manner of receiving it.

RULE 124.

No deposition will be suppressed on the hearing of a cause, for irregularity or informality in the taking of such deposition, but the question must be brought before the Court on a special motion for that purpose, before the cause is brought to a hearing.

MARCH 24TH, 1845.

Ordered, that the 56th rule of this Court be amended, so as to read as follows:

RULE 56.

"Documents, which are of themselves evidence without further proof, shall not be read on the hearing, unless they have been made exhibits before the Master or commissioner; and no deed or other writing shall be proved at the hearing, except on an order previously obtained, after due notice to the adverse party."

*Vide Bacheldor v. Nelson, post 449.

CASES

ARGUED AND DETERMINED

IN THE

COURT OF CHANCERY

FOR THE

STATE OF MICHIGAN.

RANDOLPH MANNING, CHANCELLOR.

SMITH & WILLARD V. THOMPSON.

A judgment creditor, who files a bill to have his judgment satisfied out of choses in action belonging to his debtor, must show, 1st, A judgment; 2d, An execution sued out on such judgment; and 3d, A return of the execution unsatisfied in whole or in part; and unless these facts appear affirmatively in the bill, this court has no jurisdiction of the case.1

An execution cannot be legally returned until the return day thereof; and where an execution was returned May 17th, when it was returnable on the 18th, the return was held to be insufficient to authorize the filing of a creditor's bill.2

An execution may be levied at any time on the return day, and the execution of the writ be completed by a sale of the property after that day.

1 See Williams v. Hubbard, post, 28; Freeman v. Mich. State Bank, post 62; Maynard v. Hoskins, 9 Mich., 485; Tyler v. Peatt, 30 id., 63.

For exceptions to the rule, see Beach v. Bestor, 45 Ill, 341, S. C. 47id., 521; St ere. Hoagland, 39 id., 264; McDaniel v. Cochrane, 11 id., 31; Bay v. Cook, 31 id., 336; Newman v. Willett, 52, id., 98.

2 See Beach v.

White, post, 495; Freeman v. Mich. State Bank, post, 62.