criterion, were it permissible for us to do so, by which to ascertain just what such worth is. The proof does not establish how much, if any, the property is benefited by the improvement less than what it would be if the work had been fully performed according to contract; nor is there any testimony tending to prove that the contract was let at an exorbitant price. If the city, acting through its authorized agents, had let the job for a grossly extravagant price, or permitted fictitious items to be included in the sum to collect which the assessment was levied, it would have operated as a fraud upon the property owners, which might have called upon a court of equity to interfere, and vacate the assessments, or reduce the amount which complainants should pay. In re Livingston, 121 N. Y. 94, 24 N. E. Rep. 290. We have never interfered with the discretion of the authorized agents of municipalities in the exercise of the powers granted by the legislature, except when there was a want of jurisdiction in the proceedings. Here the matters complained of are not jurisdictional, but are irregularities, not affecting the jurisdiction, and mainly for the reason that the work and material were not such as the contract called for. That such objection is no defense to the enforcement of the assessment was directly held in Motz v. Detroit, 18 Mich. 514. See, also, Cooley, Tax'n, p. 671; Wells v. Atlanta, 43 Ga. 67; Hovey v. Mayo, 43 Me. 322; 15 Amer. & Eng. Enc. Law, 1046. think the decree of the court below dismissing the hill should be affirmed, with

costs.

We

MCGRATH and GRANT, JJ., did not sit. The other justices concurred.

ROSENFIELD et al. v. CASE. (Supreme Court of Michigan. July 28, 1891.) ATTACHMENT SUBJECT TO MORTGAGES - REPLEVIN -APPRAISALS-EVIDENCE.

1. Where mortgaged goods are levied on by a sheriff under an attachment subject to the mortgages, he thereby recognizes the validity of the mortgage liens, and cannot hold possession, as against the mortgagee, on the ground that the mortgages are being used to defraud other creditors.

2. In replevin against a sheriff who has levied an attachment on mortgaged goods, it was error not to allow him to answer a question as to whether the attorney for plaintiffs demanded joint possession of the goods, but this was cured where he afterwards gave all the conversation with the attorney, and testified that no demand was made before the writ was issued.

3. Where an appraisal was made in replevin by the mortgagee of goods against a sheriff who has levied attachment thereon, evidence of the amounts of appraisals in subsequent attach ments, coupled with testimony tending to show no material change in the goods since the action of replevin commenced, is competent, as tending to show the value of the goods.

4. In replevin against a sheriff for goods levied upon under attachment, one of the appraisers identified his own signature to the ap. praisal, and testified that there was no material difference in the stock between the time of his appraisal and the appraisal upon the attachment. Held that, on a new trial, when he was absent from the state, his testimony might be read in

evidence, though it was not shown that his deposition could not have been taken.

5. A sheriff in possession of goods under an attachment has no right, as against prior mortgagees, to hold undisturbed until his inventory is completed. Merrill v. Denton, 73 Mich. 634, 41 N. W. Rep. 823, followed.

6. A sheriff in possession of mortgaged goods, under attachment levied subject to the mortgages, has no defense in an action of replevin by the mortgagees, unless the value of the goods exceeds the amount of the mortgages, even though nothing is due on them.

7. In an action of replevin by the mortgages of goods against a sheriff who levied an attachment thereon, where there was no pretense that the mortgage was paid at time suit was commenced, the plaintiff may recover, although it appeared that the mortgage had been paid since the action was commenced.

8. Where a chattel mortgage authorizes the mortgagees to take possession whenever they deem themselves insecure, they may maintain an action of replevin against a sheriff who has levied an attachment on the property, though the mortgage be not due.

Error to circuit court, Benzie county; FRED H. ALDRICH, Judge.

Action of replevin by Joseph Rosenfield and Louis May, executors of the last will of Moses May, deceased, against Albert B. Case. Judgment for plaintiffs. Defendant brings error. Affirmed.

McAlvay & Grant and Ramsdell & Benedict, for appellant. G. A. Wolf, for appellees.

MORSE, J. This is an action of replevin brought for a stock of goods owned by Jacob May at Frankfort, Mich. The plaintiff had a mortgage on this stock. and there were also four other mortgages upon it. At the time of the triul these mortgages amounted to $6,129.34. The defendant is the sheriff of Benzie county, and, at the time the writ of replevin was served, was in possession of the goods under attachment levies, and was taking an inventory of the same. Upon the trial the validity of the five mortgages was admitted by the defendant, and the whole question in issue was whether the sheriff levied in opposition to the mortgage of plaintiffs or subject to it. The jury found for the plaintiffs, and they had judgment.

We shall notice only such assignments of error as we deem important enough for discussion. Many are assigned that are of no importance whatever. Mr. McAlvay, of counsel for defendant, stated to the court that they did not contest the mortgages, but did contest the use the parties were making of the mortgages to defraud the unsecured creditors. Mr. Parker, an attorney at law and a witness for plaintiffs, testified, on cross-examination, that, at the time the sheriff levied the attachinents, he was in possession of the goods under a foreclosure of a mortgage to one Otto Krause, one of the five mortgages heretofore referred to. He was asked what he had done under that mortgage. Mr. McAlvay stated, in support of this question, that he proposed to show that there had never been any legal foreclosure of the Krause mortgage; that Parker and G. A. Wolf, who were attorneys for all the five mortgagees, were acting jointly and in concert; that they did not intend to legally foreclose this mort

gage, but took the steps they did in a pretended foreclosure for the purpose of using these mortgages to "freeze out" the balance of the creditors. Mr. Pratt, of counsel for plaintiffs, objected to the question on the ground that defendant's counsel had stated in the outset that they did not question the validity of plaintiffs' mortgage, or any of the mortgages; that, if the defendant intended to show a fraudulent use of the mortgages, then it must be that it was proposed to show that the sheriff levied in antagonism to the mortgages, and to maintain that he had a right to do so, because of such fraudulent use. But defendant's counsel maintained that they did not intend to claim that the sheriff levied in opposition to the mortgages, but subject to them, and that was their main defense upon the trial. This being so, it could not concern the jury whether a fraudulent use was made of the mortgages or not. If the sheriff levied subject to them, they were acknowledged by him to be lien upon the goods, having preference over his levies. The defendant could not blow hot and cold. He could not claim that he was entitled to recover, because he levied subject to the mortgages, and recognized their validity, and was, therefore, entitled to hold joint possession with them, and complete his inventory, and at the game time claim that he was entitled to hold the goods against the mortgages, because they were being fraudulently used to defeat the claims of other creditors. His levies were either made subject to the mortgages, or in opposition to them. He could not maintain both defenses, as they were antagonistic. The court was right in not permitting any evidence of the fraudulent use of the mortgages to be introduced. The court, however, said to the defendant's counsel that, if any fraudulent acts could be shown on the part of plaintiffs, such acts would be received in evidence. Nothing of this kind was offered. Defendant undertook to show by one Florshein the estimate of value that Jacob May put upon the stock of goods. This was properly excluded. The admissions of May could not bind plaintiffs, and the offered testimony was purely hearsay.

The following question was asked the defendant: "I will ask you whether or not he made any demand at that time on you, Mr. Case, for joint possession?" (referring to a conversation on the 7th of January, 1889, with G. A. Wolf, attorney for plaintiffs, the day before the writ of replevin was served in this suit.) It was objected to as calling for a conclusion of the witness, and excluded by the court. We think the question was a proper one, but as he was permitted to and did give all the conversation he had with Wolf, and also testified that neither Parker nor Wolf asked him for joint possession before the writ of replevin was served, no error was committed to the prejudice of defendant.

The court admitted considerable evidence as to what was done with the stock of goods after they were replevied, but afterwards struck it out of the case. The

rights of the parties in this suit must be fixed by the situation at the time the writ was issued. What was done with the goods thereafter was immaterial to the issue in this suit. Cary v. Hewitt, 26 Mich. 228; Merrill v. Denton, 73 Mich. 628, 41 N. W. Rep. 823. Testimony was introduced of three or more appraisements made of these goods, touching upon their value. The appraisal was partly completed by the sheriff before the service of this replevin writ was offered by the defendant. The plaintiffs showed the appraisal made in the suit, and also appraisals made in some attachments levied by the sheriff after the commencement of this suit. It would seem that other attachments were levied by the sheriff after the service of this writ, and plaintiffs were compelled to replevin the second time. The evidence of the amount of the appraisals under these later attachments, coupled with testimony tending to show that there had been no material change in the stock since the replevin in this suit, was competent as tending to show the value of the goods replevied.

The testimony of one Voorheis, taken upon another trial in this cause, was read in evidence upon a showing that he was out of the jurisdiction of the court. This is assigned as error, as no showing was made that his_deposition could not have been taken. It was shown that he left that spring or summer (the trial was in September, 1889) for the south, and was somewhere in Tennessee. His family still resided at Frankfort, Benzie county. We think no error was committed in the reception of this evidence. His testimony related to the appraisal in the present suit. He was one of the appraisers. A. J. Doyle and T. C. Anderson were the othHe identified his signature to the appraisal, and gave his opinion as to the value of the goods, and that he noticed no material difference in the stock between his appraisal and the subsequent appraisal upon the last attachment. It appears that he was fully cross-examined by the defendant's counsel, which cross-examination was also read in evidence. Mr. Anderson was sworn on this trial, and gave substantially the same evidence as that of Voorheis.

ers.

It is contended that the sheriff had the right to finish his inventory, and could not be disturbed in the possession of the goods until it was completed; and that, after it was done, it was his right to fix the character of his levy, whether it should be in opposition to or subject to plaintiffs' mortgage, but until then his possession was rightful, in any event. The law in this state has been settled against this contention by Merrill v. Denton, 73 Mich. 634, 635, 41 N. W. Rep. 823.

The court instructed the jury that, if they found that the defendant levied subject to the mortgages, he could not recover, unless the value of the goods was found to be in excess of $6,129.84, the amount of the five mortgages. This is claimed to be error. It is argued that there was nothing due on any of these mortgages at the time the sheriff levied. This would make no difference. If the

levies were made expressly subject to all these mortgages, as the defendant was contending they were, then he certainly could not claim anything except the balance remaining over and above the full amount of them. It is said by defendant's counsel that they were not trying the case as to all these mortgages, and what the interest of their holders might have been in the goods was of no concern in this suit. But the defendant was beaten by the jury on one of two propositions: First, that he levied in opposition to the mortgages which were conceded to be valid, in which case his levies were illegal and void; or, second, that the value of the goods taken was not in excess of the amount of the mortgages, in which event, if he levied subject to them, there would be nothing covered by his levy. The charge of the court in this respect was correct.

The court was asked to instruct the jury that, if plaintiffs' mortgage had been paid and satisfied, they could not recover. This was refused, and properly so. There was no pretense that the mortgage was paid at the time this suit was commenced, but it was shown by the cross-examination of one of the plaintiffs that their mortgage had been paid, since the beginning of this suit, by Mr. Krause, who held one of the other mortgages. If Krause's mortgage was a valid one, and it was conceded on the trial by the defendant that it was, he had the right to pay the mortgage of plaintiffs, which was of the same date and filing of his own; and the plaintiffs could sell it, or receive their pay from him upon it, without detriment to their case in this suit. If, at the time of the issuing of the writ, they were entitled to the possession of the goods, as against the defendant, the fact that their mortgage was afterwards taken up and canceled by another mortgagee could not in any way affect their right to recover judgment against defend

ant.

It is claimed that the court erred in not instructing the jury, as requested by the defendant, that, "at the time of the levy of the attachments in question, the mortgage of the plaintiffs was not due, and they were not entitled to possession of the property levied upon for the purpose of foreclosure." The court very clearly submitted the case to the jury upon the only issues in the case, to-wit, the character of the levies, whether opposed to or subject to the mortgage; and the value, as connected with the other issue, if they found the levies were subject to the lien of the mortgages. If the plaintiffs had the right of possession for any purpose, it was sufficient. The mortgage contained clause authorizing them to take possession at any time when they deemed themselves insecure. When the sheriff levied upon the property, and made the levies in opposition to the mortgage, and refused to even let the plaintiffs into joint possession with him, they were certainly justi. fied in deeming themselves insecure, and in demanding possession of the property. Whether the mortgage was due or not was entirely immaterial, and the court was right in not lumbering up the case

a

with matters entirely irrelevant to the issues involved. The judgment is affirmed, with costs. The other justices concurred.

FINN V. DONAHUE.

(Supreme Court of Michigan. July 28, 1891.) ESTOPPEL IN PAIS-SALE-CHATTEL MORTGAGES.

Where the seller of a stock of millinery agreed with the father of the purchaser that, if he would advance $500 as part payment for the goods, he should be reimbursed by the purchaser out of the first sales before payment of the balance, and thereafter the purchaser gave her father a mortgage on the goods as security for the money advanced, the seller is estopped from claiming any lien for the unpaid balance as against the assignee of the mortgagee. 47 N. W. Rep. 125, overruled.

On rehearing.

LONG, J. This case was in this court, and an opinion rendered, November 14, 1890, and is found reported in 47 N. W. Rep. 125. After the decision was rendered, a motion for rehearing was presented, and a rehearing granted. The case has now been fully argued by counsel. The reasons given by plaintiff's counsel for rehearing are: (1) Because the court misapprehended the case, as shown by the record, as to the point on which the judgment was reversed. (2) Because Mrs. Donahue is estopped from claiming out of the proceeds of the millinery stock the payment of any portion of the indebtedness to herself, as against Mr. Downing. (3) Because Mrs. Donahue cannot hold the stock, either under a bill of sale or under verbal agreement, to secure the payment for goods added to the stock by Mr. Donahue, as purchaser or guarantor, and for which Mrs. Donahue was in no respect liable. (4) Because all the goods which were added to the stock subsequent to its purchase by Mrs. Southerland were fully paid for; part in cash, and the remainder in goods taken from the store by Donahue. (5) Because it is undisputed that no payment upon the bill of sale was due Mrs. Donahue before July 1. took possession upon May 21st, under a verbal agreement not sufficient to constitute a pledge. Her possession at the time the writ was issued must have been under such verbal agreement, which, being neither a pledge nor a mortgage, is no defense in this case. (6) Because there has never been a hearing upon the point upon which the judgment was reversed. Counsel for plaintiff now argues that it is not contended that an agreement between Mrs. Southerland, Mrs. Donahue, and Mr. Downing, by which Downing was induced to advance $500 to his daughter to enable her to buy the stock, constituted either a mortgage or an agreement for a mortgage on the stock; but it is contended that when Mrs. Donahue agreed with Downing that, if he would advance this money, he should be repaid out of the first proceeds of sales of the property, and was thereby enabled to make a sale which she was seeking to accomplish, she is now estopped from setting up a subsequent agreement between herself and Mrs. Southerland to defeat Down

She

ing's claim for those proceeds. The facts are so fully stated in the former opinion that it is not necessary to restate them here. It was held by this court in the former opinion that if Mrs. Donahue went into possession of the goods under her bill of sale with the consent of Mrs. Southerland, and was in such possession when the chattel mortgage was executed, then her rights were superior to the mortgagee, or his assigns, and therefore it would make no difference that the bill of sale was not on file. It is quite apparent from the argument now presented that the court, in passing upon the case in the former argument, was laboring under a misapprehension as to what the real claim of the plaintiff was. It was understood by this court that the plaintiff was attempting to assert his rights as a mortgagee, or as assignee of the mortgagee, and claiming that his mortgage should have priority of lien over Mrs. Donahue's bill of sale, for the reason that she had kept it from the record, but that, if she claimed under a verbal arrangement made with Mrs. Southerland as to possession, there was no such possession by Mrs. Donahue as would operate as a prior claim to the mortgage in the hands of plaintiff, who apparently took it in good faith. We think from the arguments now made, and after a thorough consideration of the points in controversy, that plaintiff's counsel is right in his contention, and that Mrs. Donahue must be held estopped from setting up any claim to the goods to defeat the mortgage. The case was very fairly and fully submitted to the jury under the charge of the court. The court charged the jury that if they found, from the evidence, that the agreement between the parties was that Mrs. Southerland was to pay her father the $500 before paying the defendant, then the plaintiff would be entitled to recover; for the mortgage under which he claims was one given by Mrs. Southerland in pursuance of that agreement with her father, and by her father assigned to the plaintiff, and he would succeed in that event to the rights of the mortgagee. Had we understood the position of plaintiff's counsel before the former opinion was rendered as we now understand it, a different conclusion would have been reached. As we now understand it upon further | argument, we are satisfied that there was no error in the case; and the former opinion must be overruled, and the judgment affirmed, with costs.

each subsequent day, where the peddler travels with one horse; and $25 for the first day, and $15 for each subsequent day, where he travels with two or more horses, -is so unreasonable and prohibitory as to render it invalid.

2. The exemption of residents of the city from the provisious of the ordinance is objectionable, as making an unjust discrimination against nonresidents.

3. A justice of the peace who has committed a peddler to jail for refusal to pay a fine imposed on conviction for the violation of a city ordinance regulating licenses for hawkers and peddlers, which is invalid, is not liable in an action for false imprisonment.

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

Action by Dwight Brooks against Daniel Mangan, police justice, and Samuel Catlin, a policeman, for false imprisonment. Defendants bring error.

Reversed.

T. A. E. & J. C. Weadock, for appellants. Gallagher & Barry, for appellee.

GRANT, J. Plaintiff obtained a verdict and judgment against defendants for false imprisonment for $450. Defendant Mangan was the police justice of Bay City, and defendant Catlin was a policeman. One Michael Tanney entered a complaint against the plaintiff charging him with a violation of a city ordinance in regard to hawking and peddling. Warrant was issued by the justice, and placed in the hands of Catlin, who executed it by arresting plaintiff, and bringing him before the justice for trial. The trial was adjourned three days, and plaintiff permitted to go on his own recognizance. He waived a trial by jury, was convicted, sentenced to pay a fine of $100, and in default thereof that he be confined in the county jail until the payment thereof, not exceeding 90 days. He refused to pay the fine, and was committed to jail, where he remained four days, after which he was released on an appeal-bond, having appealed his case to the circuit court. Plaintiff employed an attorney upon the trial of the cause before the justice, who there claimed that the ordinance was unconstitutional and void. The justice had jurisdiction of the person and of the subject-matter of the suit. It is not claimed that the defendants acted in bad faith. On the contrary, it is manifest that both acted honestly, and in the belief that they were in the performance of their official duties. The violation of the ordinance by plaintiff is conceded. The sole question raised before the justice was upon the validity of the ordinance. The defendant Mangan, in the exercise of his honest judgment, held it valid, and the defendant Catlin acted upon a warrant and commitment fair upon their face. The ordinance required every person soliciting a license as a hawker or peddler to pay $10 for the first day, and $5 for each subsequent day, if he traveled on foot; if he traveled with one horse. $20 for the first day, and $15 for each subsequent day; if he traveled with two or more horses, $25 for the first day, and $15 for each subsequent day. We think the ordinance invalid on account of its unreasonableness. Practically, if enforced, it would amount to a prohibition of the business. The ordinance is objectionable upon another

ground, viz., it makes an unjust discrimination between residents of Bay City and non-residents. It practically exempts residents from its provisions, while imposing so unjust and unreasonable a license upon non-residents. Counsel for the defendants did not seriously contend for its validity. The main question is: Are these defendants to be held responsible in a civil action, the one for his judicial determination, and the other for executing a warrant issued by a court of competent jurisdiction? Plaintiff's counsel state their position as follows: "Officers acting under unconstitutional laws are liable, no matter how innocently they may act, nor how ignorant they may be of the invalidity of their process. It is a fundamental rule in the law of torts that no matter how good the faith of the wrong-doer, nor how earnestly he may believe that his acts are justified, he must respond in damages to the party on whom he has inflicted the wrong. This statement, under all the authorities, must be confined to inferior judicial officers. It is conceded that circuit judges cannot be held liable in a civil action for any judicial determination, although such determination results in depriving the citizen temporarily of his liberty. Circuit judges are usually men of experience and education in the law, while justices of the peace seldom have any legal education or training. Upon what reason should the former be held exempt from liability for their errors, while the latter must be severely punished for honest errors of judgment? I can find no reason in such distinction. In the case of Ortman v. Greenman, 4 Mich. 290, this court severely censured a justice of the peace for holding an act of the legislature unconstitutional. In that decision the court said: "We regret that any magistrate should, in the course of his official duty, presume to do that which the highest judicial tribunals of the land do with great caution, and only after the most mature deliberation." It is evident that under this rule justices of the peace would seldom hold an ordinance or act of the legislature valid, were its constitutionality challenged in the interest of a respondent charged with crime. If these inferior officers are to be held liable in one case, it follows that they must in all; and a justice of the peace could therefore be held liable for binding a person over to the circuit court for trial, if it should afterwards be held by the appellate court that the act under which he was arrested was unconstitutional. Public policy, in my judgment, forbids the adoption of such a rule. In all criminal prosecutions, there are two parties inter. ested, viz., the accused and the people. It is inevitable, under any criminal procedure, that innocent persons will sometimes be arrested and tried Judicial officers are, and must of necessity, be intrusted with the investigation and trial of offenses against the laws of the state, and in such cases constitutional questions must frequently arise for determination. When these officers have acted in good faith in determining such questions, the innocent is without remedy. The constitution guaranties no man immunity from arrest.

It guaranties him a fair and impartial trial. It has provided him with appellate courts, to which he may resort for the correction of errors committed by the inferior courts. With this he must be content. These inferior tribunals should be left to the exercise of their honest judgment, and when they have so exercised it they are exempt from civil liability for errors. This is the only rule which can secure a proper administration of our criminal laws. The interests of the individual must, in such case, yield to the interests of the public. This is the rule adopted by the supreme court of Iowa. Henke v. McCord, 55 Iowa, 378, 7 N. W. Rep. 623. Judgment reversed, and new trial ordered. The other justices concurred.

1. In an action on an insurance policy, it appeared that an adjuster of the company spent several days with the assured's son and agent in making a list of the personalty destroyed, and the two employed a builder to estimate the value of certain buildings, and referred to an arbitrator the value of a dwelling on which they could not agree. Held that, if the adjuster's conduct would induce an honest belief that the proofs then being made were all the company required, and the assured did so believe, the jury might find that formal proofs were waived. 47 N. W. Rep. 549, affirmed.

2. The fact that, after the expiration of the time for making formal proofs of loss, the company wrote to the assured's son, saying that the adjuster had been sent to investigate the circumstances of the loss and advise the company thereof, in order that the proper officer might decide on further steps, is no proof that the son had no right to rely on the adjuster's acts, since what the latter did was within the general scope of an adjuster's authority. 47 N. W. Rep. 549, affirmed.

3. Where an applicant for insurance signs no application, but tells the agent that there is a mortgage on the premises, and the latter, in his daily report, on which the policy is issued, states that there is no mortgage, the agent's knowledge is imputable to the company, and the policy is not avoided by the misrepresentation. 47 N. W. Rep. 549, affirmed.

*

*

4. Where a stipulation in a policy provides that the company shall not be liable "if the property is or shall become mortgaged withoutthe assured's written notice to, and without the written permission of, this company indorsed on the policy," and the assured signed no written application, but told the agent that there was a mortgage on the premises, delivery of the policy to the assured, without an indorsement of permission, and without calling his attention to the conditions respecting the incumbrance, operates as a waiver thereof by the company. CHAMPLIN, C. J., dissenting.