APRIL TERM, 1862, AT DETROIT.

Janet Berry v. John Lowe, Jr.

Where error is brought in the Supreme Court upon a judgment of the Circuit, in a case brought there by certiorari to a justice of the peace, an assignment of errors that the Circuit Judge erred in holding that the justice's judgment was erroneous in the several causes of error assigned in the affidavit for certiorari," is a sufficient special assignment of errors under the 'rule.

On a writ of error, the Supreme Court corrects only such errors as have been committed adversely to the interest of the party suing out the writ.

On certiorari to a justice's court, if the error alleged is a total want of evidence to prove some fact necessary to sustain the judgment, the Circuit Court should look into the testimony to see whether there was such evidence or not. If there was, it should not weigh it, or inquire into its sufficiency, but affirm the judgment. If the return shows no such evidence, and it appears that all the testimony before the justice has been returned, the judgment should be reversed, on the ground that the justice erred, in law, in rendering the judgment he did without such evidence.

Upon a certiorari to a justice of the peace, the Circuit Court has no power to render judgment in favor of the plaintiff in error for the costs of the suit before the justice.

Heard November 1st and 5th 1861. Decided April 22d.

Error to Wayne Circuit.

Berry brought replevin before a justice to recover of Lowe a trunk, certain articles of wearing apparel, and other goods. On trial, the justice found for the plaintiff as to a part of the articles replevied, and gave judgment in his favor for six cents damages and five dollars costs; and he awarded a return of the remaining articles to Lowe. Lowe sued out of the Circuit Court a writ of certiorari,. assigning in his affidavit therefor the following among other

errors:

"That the said Justice erred in giving a general judgment of costs against this defendant, upon a finding of a

10 MICH.-B.

BERRY . LowE.

part of the property in said plaintiff, and a part in this defendant.

"That the judgment rendered by the said justice is against the evidence in the case, there being no proof that said plaintiff had either a right of property or of possession to any of the articles awarded to the said plaintiff by said judgment; but, on the contrary, the proof being that the entire property of said trunk and clothing was in John Lowe, Senior."

The Circuit Court reversed the judgment of the Justice as to a portion of the articles adjudged to Berry, and rendered judgment in favor of Lowe for six cents damages and the costs of suit before the justice, and also for costs in the Circuit Court. The remainder of the justice's judgment was affirmed. Berry brought error to this Court, assigning for error "that the Circuit Judge erred in holding that the justice's judgment was erroneous in the several causes of error assigned in the affidavit for certiorari," and also that the Court erred in rendering the judgment it did for costs.

J. E. Bigelow, for plaintiff in error, to the point that where the evidence is conflicting the Circuit Court can reverse the judgment of the Justice, referred to, 3 Mich. 612; 4 Mich. 198; 15 Wend. 491; 18 Wend. 141; 8 Mich. 427.

not

G. A. Wilcox and E. Hall, for defendant in error, objected that the assignment of errors was not special as required by the rules. They also argued that the Circuit Court might review the case on the evidence:-1 Mich. 257; Ib. 502; 5 Mich. 532; 7 Mich. 79; 8 Mich. 427; but that the Supreme Court could not: 1 Mich. 257; 2 Mich. 404; 5 Mich. 532; 7 Mich. 79. And they distinguished these last cases from that of Cicotte v. Morse, 8 Mich. 427, where the decision turned not upon a general review of the evidence, but upon a mistaken view of the Court