1. The president of a lumber company who, while in open and notorious charge of the business, employs a sawyer for an entire season, will be presumed, in the absence of contrary evidence, to have authority to do so.

2. The fact that a person having the general charge of such company is also its president does not operate as a limitation upon the powers usually exercised by such managers.

Error to circuit court, Bay county; GEORGE P. COBB, Judge.

Action by John Ceeder against the H. M. Loud & Sons' Lumber Company for the value of labor. Judgment for plaintiff. Defendant brings error. Affirmed.

Hanchett, Stark & Hanchett, for appellant. C. E. Pierce, for appellee.

MCGRATH, J. Ceeder sues for wages, claiming a hiring for the season of 1889, at $3.50 per day, and setting up a discharge without cause, before the expiration of his time. One Aiken says that, in the spring of 1889, H. M. Loud, who was the president of the company, instructed him to go to Bay City, and employ two sawyers for the season, at $3.25 per day each; that he went to Bay City, was unable to get his men at less than $3.50 per day, and sent word to Loud by one Chase, and wired Peterson, who was superintendent of the mill, to meet Chase; that he received the reply telegram that same evening, and employed plaintiff and another for that season, at $3.50 per day. He was not allowed to give the contents of the telegram, but, after stating the employment, he was asked, "Did you have any instructions from Mr. Loud to make such an arrangement?" and replied, "Yes; I did." Cceder testifies to his employment by Aiken for defendant at $3.50 per day for the season; that "he [Aiken] came over with the telegram from H. M. Loud & Sons' Lumber Co. He read it over at the house." That was Tuesday. "I left Bay City on the 7th of May, and arrived at Oscoda that night, about 6 o'clock. Upon my arrival I saw Mr. Loud, and gave him a letter that Mr. Aiken had given me. He says, All right, you are the two sawyers,' and says I, 'Yes.' Then Mr. Loud said, 'Look around town, and I will see Mr. Peterson to-morrow, and give you work.' That he went to work on the 10th of May, and worked until July 6th, when he was discharged without cause; that in June plaintiff and Paul Lemme, who was hired with plaintiff, were in the office of the company, and Loud was present, but wit ness was not sure that Loud heard the conversation; that Lemme asked Peterson if he was going to pay $3.50 per day for the season, and Peterson said, "Yes, that is the understanding;" that plaintiff could not get work till the 29th of July,

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when he obtained employment at $2 per day for the balance of the season. He was paid at the rate of $3.50 per day, up to and including the 5th day of July, and it is admitted that, if entitled to a verdict at all, he was entitled to $222.50, the amount found to be due by the jury.

The defendant raised two questions of fact upon the trial: First, that Aiken was not instructed to employ plaintiff for the season; and, second, that plaintiff was discharged for cause. Both of these questions have been settled by the verdict. The only question raised here is that defendant is a corporation; that this is not a case of the ordinary employment of labor for the necessities of the company, but a special contract for the entire season; and it was not shown that the president had any authority to make such a contract. No testimony was offered tending to show any limitation upon the president's powers with respect to the employment of men, nor was there any testimony offered to show that any authority had been conferred upon any particular person with reference to the same subject. It appears that Lond was in open and notorious charge of the business, and was there in the office from day to day, directing its conduct. The business of the corporation was the manufacture of lumber. A president of a manufacturing company, who is in the active conduct and management of the business, must be presumed to have all the powers of any agent, exercising like control or management, and to have authority to do what is usually and ordinarily done by such agents or managers. The primary intention of a corporation in employing an agent is that he shall be enabled to accomplish the purpose of the agency, and other persons are invited to deal with the agent upon that understanding. In Mining Co. v. Senter, 26 Mich. 73– 75, referring to the powers of a mining agent, this court say: "We are not satisfied that any testimony would be needed to show the extent of the ordinary powers of an agent in charge of such a mine. The authority of such officers must, within the usual range of business, at least, be recognized judicially, like that of bank cashiers, vessel captains, and other known agents. The mining law recognizes agents by name, as known representatives on whom process may be served. They are the persons who have charge personally of the local business at the mines, and are necessarily to be treated in law as general agents, to do all that is fairly within the scope of corporate business in conducting the operations in that locality. The business could not be conducted at all without a very wide discretionary power. There is no reason, and can be no legal principle, which will put the agent of a corporation on any different footing than the agent of an individual in regard to the same business. A general agent needs no instructions within the range of his duties, and any limitations on his usual powers would not bind others dealing with him, and not warned of the restrictions." The fact that a person having the general direction and active conduct of the business of a corporation is also its president does not operate

as a limitation of the powers usually exercised by such agents or managers. His authority is not limited to that possessed by virtue of his office as president, but is incident to the management of the business. The case is clearly within the prin

to be brought in his name against the executor and his bondsman. It is therefore contended that the probate court, in construing the will and in passing upon the petition presented by complainant, acted without authority of law, so far as this

ed above. See, also, Steel-Works v. Bresnahan, 60 Mich. 332, 27 N. W. Rep. 524; Whitaker v. Kilroy, 70 Mich. 633, 38 N. W. Rep. 606. The judgment is affirmed, with costs to plaintiff. The other justices concurred.

BYRNE V. HUME.

(Supreme Court of Michigan. July 28, 1891.) JURISDICTION OF PROBATE COURT-CONSTRUCTION OF WILL-RES ADJUDICATA.

1. Under How. St. Mich. § 5964, providing that after the payment of debts, expenses of administration, etc., the probate court shall assign the residue of the estate to those entitled, the probate courts have jurisdiction in the settlement of estates to construe wills; and a legatee, whose petition for the payment of his legacy is dismissed there, cannot maintain another action against the executor.

2. A bequest as follows, "I give and bequeath to my said father and mother the sum of $3,500, and I desire my executors to pay the same over to them out of my life insurance money payable to my executor, as soon as collected," is a general legacy, to be paid out of the general assets of the estate, if the insurance money is not collected.

On rehearing. For former report, see 47 N. W. Rep. 679.

LONG, J. This case was in this court at the October term, 1890, and decided December 24th following. Byrne v. Hume, 47 N. W. Rep. 679. A motion was made for rehearing, upon the ground that counsel desired an opportunity to reargue the question of the decision of the probate court giving construction to the will, which we held was res adjudicata to the present bill. A rehearing was granted, and the case has again been argued upon this question, upon both sides, with great learning and ability. We are, however, unable to change our former ruling. The contention is (1) that the decision of the probate court was rendered on demurrer to the petition, and not on the merits; (2) that the probate court had no jurisdiction of the subject-matter of the petition, because the legacy was a specific one. The petition filed in the probate court set out substantially what is set out in the present bill, and the judgment of the probate court upon it is a bar to any further action between the same parties upon the same state of facts, unless it is apparent that the probate court had nojurisdiction in the matter because of the legacy being a specific one. Complainant's counsel claims that this was a specific legacy, and was never any part of the assets of the estate of Thomas Byrne, deceased; that as soon as it was collected it became the property of William aud Ann Byrne; that the judge of probate never had any authority over the money, and all the authority he had was to order the executor to do in regard to it what the testator in his will directed to be done, and, in case the executor refused, to allow suit

then, and never has been, any part of the assets of the estate over which the probate court or the executor had control; that by the terms of the will it vested absolutely in William and Ann Byrne, immediately on the death of the testator. Whether this was a specific legacy or not, in our opinion, does not change the case, so far as the jurisdiction and powers of the probate court are concerned. That court has power and jurisdiction to conHume, supra, and cases there cited. Secstrue wills, as was held in Byrne v. tion 6760, How. St., provides "that the judge of probate shall have jurisdiction of all matters relating to the settlement of the estates of deceased persons. Whatever this legacy may be called, whether general, specific, or demonstrative, the probate court had jurisdiction to direct, in a proper proceeding, a payment of the legacy if withheld. We are not satisfied, however, that this was a specific legacy. The bequest is: "I give and bequeath to my said father and mother the sum of $3,500, and I desire my executor to pay the same over to them out of my life insurance money, payable to my executor, as soon as collected."

We

A specific legacy is a particular and specified thing singled out, or a particular fund; and, if this fund fail, or the specific thing bequeathed is not in existence to be carried over to the legatee, the legacy cannot be paid out of the assets of the estate. It would not be contended but that these legatees, if the insurance money could not have been collected, would have been entitled to receive the legacy out of the estate generally. It is rather in the nature of a demonstrative legacy, which is a pecuniary legacy, the particular fund being pointed out from which it is to be paid. Under such gifts, the legatee will not lose the legacy if the fund fail. think it was the intent of the testator that this should be treated as a general legacy to be paid to his father and mother at all events out of the general assets of the estate, unless the money was collected from his life insurance. In this view of the case, the probate court had jurisdiction in giving construction of the will over this fund, and his determination of the same questions, under the petition, which are now presented by this bill, must be held final and conclusive upon the claimant, as no appeal was taken from his decision. Since the case was presented and the opinion filed upon the former hearing, Ann Byrne, the claimant, has died. The cause has been revived in this court in the name of her administrator, so that the contest, as now presented, is solely between the administrator representing the estate of Thomas Byrne, and the children of Ann Byrne, deceased, who are the brothers and sisters of the testator. We must adhere to our former decision, and the decree of the court below will.

be affirmed, with costs to be paid out of the estate.

153 of the Laws of 1885,1 nor that the amount of moneys so collected by him upon such tax-roll is truly stated. An in

BOYCE V. STEVENS.

(Supreme Court of Michigan. July 28, 1891.)

TAXATION-COLLECTION-WARRANT.

1. Act Mich. 1885, No. 153, § 44, concerning delinquent taxes, provides that the treasurer shall make a statement showing the taxes upon personal property remaining unpaid, and shall set forth the amount of all moneys collected by him on account of taxes, which shall be verified by the affidavit of the treasurer, etc. Held, that a mere failure of a statement to show the amount of all the moneys collected did not invalidate a tax-warrant issued for delinquent taxes, since section 89 of the act provides that no tax shall be invalid, for omissions in the tax-roll, which do not prejudice the right of the person taxed.

2. Under How. St. Mich. § 8318, providing that "no replevin shall lie for any property taken by virtue of any warrant for the collection of taxes, an admission that the property was taken under a tax-warrant for taxes partly legal will defeat the right of replevin to all the property taken.

3. Under Act Mich. 1885, No. 153, § 26, providing that "all personal taxes shall also be a lien on all personal property" of the person as sessed, from and after the 1st day of December in each year, etc., the fact that a judgment was taken for the amount of the tax-lien does not defeat the lien given by statute.

Error to circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

Action in replevin by Jonathan Boyce against Samuel H. Stevens. Judgment for defendant. Plaintiff brings error. firmed.

Af

in conformity to the statute, except in the respect claimed. The plaintiff relies upon the case of Port Huron v. Potts, 78 Mich. 435, 44 N. W. Rep. 289, but in that case not only was this part of the affidavit omitted, but it contained no statement that the sums returned as uncollected remained unpaid, nor that the collector was unable to find any goods or chattels out of which to make the tax. These last two omissions were vital, and concerned the plaintiff, whose tax was returned as uncollectible. It failed to show on oath that he had failed to pay the tax, or that the treasurer had been unable to collect it. In the present case these facts were shown. I fail to see how the omission in this case to state the whole amount of moneys collected by the treasurer, and that the same was truly stated, could prejudice the plaintiff, or why it concerned him in any way. His counsel in his brief says: "Just why this is required I am unable to discover, but I submit it is sufficient that the legislature saw fit to make the distinction" (in the facts to be stated in a return of real and personal delinquent tax;) "and, as the legislature had the power to determine what facts should be stated, and have so determined, this court is bound by that legislative determination." But the same legislature of 1885, in section 89 of the same act, provided that no tax shall be held invalid on account of any irregularity in the assessment, or on account of any assessment or tax-roll not having been made, or proceedings had,

MORSE, J. This is an action of replevin brought to recover possession of two piles of lumber taken by the treasurer of the city of Muskegon under a tax roll and warrant for the year 1889, upon which he claimed there was due from the defendant for taxes, interests, costs, and fees the sum of $232.66. This tax is now conceded by plaintiff's counsel to be correct. The defendant also claimed to take and hold the property under a delinquent tax-warrant issued March 5, 1889, by the treasurer of Muskegon county, based on the return of delinquent taxes from the township of Lakeside on the tax-roll of 1888. The township of Lakeside was annexed to and became part of the city of Muskegon by an act of the legislature dated March 5, 1889, which act took immediate effect. Under this warrant the defendant claimed $864.98. The court directed a verdict for the full amount claimed upon both warrants. The plaintiff here disputes the validity of the Lakeside tax, and asks a reduction of the judgment to the sum of $232.66, the amount of the city tax. The counsel for plaintiff attacks the warrant of the county treasurer. The affidavit to the return of the township treasurer of Lakeside is claimed to be defective, in that it fails to state the "amount of all moneys collected by him on account of taxes," in conformity to section 44 of Act v.49N.w.no.11-37

on account of any other irregularity, informality, or omission, or want of any matter of form or substance, in any proceeding that does not prejudice the rights of the person whose property is taxed. In this case the record shows that the property of plaintiff was legally assessable, for the year 1888, in the township of Lakeside, and that the tax has not been paid. There is no attempt to show that the tax was illegal or unjust; indeed, it is stipulated in the case that the property assessed to him was owned by him in the township of Lakeside. But, whether the return of delinquent taxes was sufficient to authorize the issue of the county treasurer's warrant or not, the plaintiff has no standing in court to question this judgment.

In order to maintain replevin,2 he was obliged to make affidavit, which he did, that the property replevined had not been taken from him for any tax assessment. But when he comes into court he admits that the city tax is legal, and that judg

'Act Mich. 1885, No. 153, § 44, provides that the township treasurer shall make a statement showing the taxes upon personal property remaining unpaid, and shall set forth the amount of all moneys collected by him on account of taxes, which shall be verified by the affidavit of the treasurer, etc.

How. St. Mich. § 8318: "No replevin shall lie for any property taken by virtue of any warrant for the collection of taxes.

ment for that amount ought to pass against him, thereby confessing that he had no right to plant the suit in replevin. It is argued, however, that because the defendant chose to take a judgment for the amount of the tax-liens, he cannot recover for the Lakeside tax. But we think differently. He stipulates as follows: "That on the second Monday of April, 1888, the plaintiff was the owner of the property assessed to him in the township of Lakeside, in Muskegon county, that year." This conceded the validity of the tax, and under the statute such tax became at once a debt from plaintiff to the township of Lakeside; and the statute also provides that "all personal taxes shall also be a lien on all personal property of such persons so assessed, from and after the 1st day of December in each year, and shall take precedence of any sale, assignment of, or chattel mortgage, levy or lien on such personal property, executed or made after said 1st day of December, except when such property is sold in the regular course of trade. Section 26, Act 153, Laws 1885, p. 185. The township of Lakeside had a lien upon all the personal property of plaintiff for this tax from the 1st day of December, 1888. By the annexation of Lakeside to the city of Muskegon the debt became a debt to that city, and the lien also accrued to the city. Stevens took this property as the agent of the city, and he is the only authorized agent to collect the tax. It was therefore proper for him, having taken possession of the property upon which the lien existed, to take judgment for the amount of the tax. And the plaintiff cannot complain. He has only been compelled to pay a just tax, and the costs of the suit are not increased, as judgment must have passed against him in any event. The judgment below is affirmed, with costs. It is not the policy of the law that persons shall escape just taxation for mere irregularities and informalities in the proceedings which do not in any way prejudice or affect their rights, nor that such persons shall be allowed to bring action of replevin to harass and delay the collection of such taxes. The plaintiff has lost nothing that belonged to him, and must remain content.

error, since, if the mortgage had been taken for a greater amount than the debt, it would be a fraud on the mortgagor's (E.'s) other creditors.

2. But where the jury, by a verdict for the entire amount of the mortgage, find that the alleged prior indebtedness existed at the time the mortgage was made, the error will not be adjudged prejudicial.

3. It was not error to charge that the jury might take into consideration all plaintiff's afteracts, as bearing on whether she participated in any fraudulent intent on the part of E., (the mortgagor;) and that, if there was a bona fide debt, and the mortgage was given to secure it, then the mortgage was valid.

4. At the time of the seizure the goods were being packed for shipment to another state, and the mortgagor had drafted a bill of sale to plaintiff, but it was neither executed nor delivered. Plaintiff was not in possession of the goods, her mortgage was of record, and the sheriff testified that after the seizure plaintiff demanded the goods under her mortgage. Held, that it was not error to charge that there was no evidence that estopped plaintiff from claiming under her mortgage.

5. Prior to the mortgage in question the mortgagor sold the goods to another, but afterwards replevied them He had received, as consideration for the sale, a mortgage and a deed of certain land; but the court held that it was incompetent to show by parol whether the mortgage and deed ran to the mortgagor or to his wife. Held, that this error was not prejudicial, since whether such transaction was fraudulent or not could in no way show that the debt from the mortgagor to plaintiff mortgagee did not exist.

6. It was proper to charge the jury that, in fixing the value of the goods, they might consider the sheriff's appraisal, and the amount they brought at the sale, and that she could recover the market value thereof, not to exceed the amount of her claim.

7. It was proper to refuse to charge that plaintiff's recovery must not exceed what she could have sold the goods for under the chattel mortgage, since mortgagees cannot be deprived of the right to protect themselves under a forced sale.

8. A charge that if plaintiff failed to produce the evidence within her power of the value of the goods, "such as books of accounts, bills payable, invoices of goods, and cash accounts," and relied on inferior evidence, the jury might consider such omissions as bearing upon her good faith, was properly refused, where plaintiff had introduced several witnesses who had been in the drug business many years, and part of whom made the sheriff's inventory; since the evidence mentioned was not the best, as it would tend to show cost, rather than value.

9. It was not error to exclude the testimony of a witness as to the "general value" of secondhand stocks of drugs, though he had been in the

SHOWMAN V. LEE et al. (Supreme Court of Michigan. July 28, 1891.) MORTGAGES-VALIDITY-EVIDENCE-INSTRUCTIONS.

1. Plaintiff indorsed notes for one E. in order to procure the release of E.'s stock of drugs from certain attachments levied thereon, and then took a mortgage on the goods to secure the amount of such indorsements, and an alleged prior indebtedness of E. to plaintiff. Afterwards plaintiff paid the notes indorsed by her, and the mortgaged goods were attached by an unsecured creditor of E., and were sold under an execution issued in such attachment suit. Held, in trover against the sheriff for the goods so sold, that a charge that, in any event, the mortgage was good for the amount of the notes, whether the prior indebtedness was bona fide or not, was

ing of the stock in question.

Error to circuit court, Ionia county; VERNON H. SMITH, Judge.

Trover by Charlotte Showman against Hiram N. Lee and George Van Wagner, sheriff and deputy-sheriff. Judgment for plaintiff for a less amount than the value of the goods converted. Plaintiff brought error. Reversed in the supreme court. On second trial there was judgment for plaintiff. Defendants bring error. Affirmed. For prior report, see 44 N. W. Rep. 1061.

John S. Bennett, (Griffin, Warner & Hunt, of counsel, for appellants. Davis & Nichols, (Fletcher & Wanty, of counsel,) for appellee.

MCGRATH, J. This is a suit in trover against the sheriff and deputy-sheriff of