caused to be recorded a second certificate, with correct dates, for the purpose of curing the errors in the first.

The bill alleges that the last removal of the execution was illegal, and further on it contains a sweeping charge that all the proceedings were invalid; but no new objections are pointed out. Some of the points mentioned in argument under this head have been already disposed of.

It has been shown that the facts were sufficient to constitute a levy on the 13th of September, 1876. Hence, the subsequent endorsement of a levy, whenever made, is of no importance. It has also been shown that there is no basis in the bill, and probably not in the case, for claiming that complainant purchased on the faith of a state of facts appearing in the records, and which precluded defendant from using the levy to get an overreaching title. The levy was made in the life-time of the writ and during Gibbs' term of office. He was accordingly competent to make the sale, notwithstanding that his term had expired, and the old writ was sufficient for the purpose. Comp. L. §§ 559, 6111; Wood v. Colvin 5 Hill 228; Averill v. Wilson 4 Barb. 180 -183; Remington v. Linthicum 14 Pet. 84-92; Wheaton v. Sexton's Lessee 4 Wheat. 503; Childs v. McChesney 20 Iowa 431; Stein v. Chambless 18 Iowa 474; Phillips v. Dana 4 Ill. 551; Stewart v. Severance 43 Mo. 322.

It has not been customary in this State, in case of failure or inability to sell before the return-day, to resort to venditioni exponas. The usual course, certainly, has been either to proceed directly on the old execution or sue out a new one, by way of continuation, for the purpose of finishing the work commenced under the former. The practice which seems to have been followed in this instance, for the late sheriff or the plaintiff in the judgment, or his counsel, to take the execution from the files at pleasure, was very loose and ought not to be allowed. But there is no admissible view of what occurred in that respect which involved anything more serious than irregularities. There was nothing in the way of fault sufficiently vital to destroy the sale,

and this is not a case in which to review mere errors or irregularities.

In taking cognizance of this suit the circuit court did not exercise appellate jurisdiction, and we are not to proceed as though it did.

The defects in the certificates of sale are immaterial in this controversy; the complainant has no concern with them. The point taken assumes that the prior proceedings are good against his bill, and that the sale is to be deemed valid for the purpose of this case. It would then seem plain that the blunder of the acting sheriff, in making out his certificate for record, could not aid complainant or prejudice the sale as between him and the defendant. The supreme court of New York have held that the requirement to file a certificate is directory merely. Jackson v. Young 5 Cow. 269, 270; Jackson v. Page 4 Wend. 585-590. Whether this could be maintained as a universal proposition may be open to question; but I think it is entirely correct as regards these parties.

Fifth. In order to prove the notice given of the sale, the defendant submitted certain affidavits which were made at the time the sale took place. One was the affidavit of the publisher of the newspaper, and the others were affidavits of the persons who posted the notices. The complainant's counsel now argues that this was not legal evidence in this case; that complainant attacked the sale as void, and that it therefore devolved on the defendant to give legal evidence to prove that it was valid; and that the witnesses should have been placed on the stand where they could be crossexamined. This position can hardly be deemed serious. On what principle can it be said that by alleging that defendant's title was bad, the complainant compelled the defendant to prove that it was good? It was for complainant to maintain his allegation, and it devolved on him to make out a prima facie case of want of due notice. But he offered no evidence whatever to impeach the sale on that ground. As there was nothing to cast suspicion on that part of the proceeding, it is a reasonable presumption of fact that it

was regular and that proper notice was given. Wood v. Morehouse 45 N. Y 368.

The publication is expressly provable by the publisher's affidavit (Comp. L. § 5925), and whether, in view of the difficulties to follow an exaction of personal evidence on the stand, the law will admit proof of posting by the contemporary affidavits of the persons who did the posting, has not been decided, and this case calls for no decision on it. The conclusion I am compelled to reach is that complainant has failed to make out a case for relief. Whether he might have found more favor on a motion in the court from whence the execution proceeded to set aside the sale, is uncertain.

The exact disposition of the case by the court below demands notice. The hearing was on bill, answer and evidence, there being no cross-bill, and the complainant's bill was dismissed. But the circuit judge did not stop on denying relief to complainant and dismissing his bill. He went on and made a full affirmative decree for the defendant, establishing his title in all its parts. There was no foundation whatever for so doing, and although the complainant's counsel does not allude to this feature, this Court is not willing to affirm more than the dismissal.

The residue of the decree being without any basis, ought not to remain, and as matter of form should be reversed.

The other Justices concurred.

LUDOVIC S. KING V. DUNCAN MCKENZIE.

Justices' courts-Unauthorized appearance.

If a justice, whether properly or not, has erased his docket entry of the appearance of a defendant, he ought not to proceed in the case without giving notice of his purpose to the defendant, or the attorney who had assumed to appear for him.

Costs were withheld upon the affirmance of a judgment reversing the action of a justice in proceeding ex parte in a case in which he would have had a right to proceed if he had not previously erased his entry of defendant's appearance.

Error to St. Clair. (Stevens, J.) October 2.-October 10.

ATTACHMENT. Defendant brings error. Affirmed.
Atkinson & Stevenson for appellant.

Chas. K. Dodge for appellee.

COOLEY, J. McKenzie sued King by attachment in justice's court, but failed to obtain personal service. The writ was returnable on February 27, 1882. On that day McKenzie's attorney, understanding or supposing that Mr. Dodge, an attorney of this Court, was to appear for King, procured from him the following paper: "Case of McKenzie v. King adjourned without prejudice to 28, 9 A. M. This was signed by Dodge, and presented at the proper time to the justice, who, understanding it to be a request addressed to him for the continuance of the case, continued it accordingly. On the next day, at the hour named, the plaintiff appeared and also Dodge, and by consent the cause was held open until two o'clock. The proper entries were made on the justice's docket on both occasions to show an appearance for the defendant by Dodge, as his attorney. Before the hour of two had arrived, Dodge went again to the justice's office, and told that officer he was not authorized to appear for King, and insisted that the entry of his appearance should be erased; which was done. When the hour for calling the case arrived, the plaintiff appeared, but there was no appearance for defendant. When the plaintiff understood what had been done respecting the appearance by Dodge, he demanded that the entry be restored; and this was done, and the cause heard ex parte, and judgment given for the plaintiff. Defendant, by Dodge as his attorney, then removed the case by certiorari to the circuit court, where the judgment was reversed.

The justice had a right to act upon the appearance of Dodge, and proceed in the case; and if he had not erased his entries on the docket we should see no reason for disturbing his judgment; but striking those out was a concession that the case could not further proceed on the appearance which had previously been entered; and though the justice may have erred in this, we can see much reason for the view of the circuit judge that the plaintiff should not have proceeded further in the case without notifying the defendant, or the attorney who had assumed to act for him, of his intention so to do.

We shall therefore not disturb the judgment of reversal ; but we do not think the case is one calling for any costs in this Court. No costs will therefore be awarded.

The other Justices concurred.

JOHN SUTTON ET AL. V. HENRY VAN AKIN.

Malicious prosecution—Objection to declaration.

A declaration for malicious prosecution is defective if it does not aver the termination of the suit in the last court to which it was carried. But the defect is formal, and would be cured by a verdict for plaintiff on the merits.

Formal defects in pleadings, even if not amendable, should be brought to the court's attention at the earliest reasonable opportunity, if the opposite party means to rely on them; he cannot plead the general issue and then object to evidence on the ground that no cause of action is stated. And if the defect is one that would be cured by verdict, the trial judge should either disregard it or direct amendment to be made and the trial to proceed, and if this takes defendant by surprise he can continue the case on a proper showing. Error to Shiawassee. (Newton, J.) Oct. 3.-Oct. 10. MALICIOUS PROSECUTION. Plaintiffs bring error. Reversed. A. R. McBride for appellants. The omission to aver in