judgment for the plaintiff. The circuit court reversed the judgment, and the plaintiff brought a new suit, within one year after the reversal, on certiorari. The only question is whether the first proceedings and the reversal suspended the bar of the statute as against the last suit under section 7158, Comp. L. The court below held that they did so, and error is charged on the ruling. The only objection having any color of force is that the provision cited speaks of reversals on "writ of error," but is silent as to reversal onc ertiorari.

It would be a very narrow and unreasonable construction to confine this provision to the common-law writ of error. The effect would be to exclude from the operation of this meritorious qualification of the statute of limitations the numerous cases where the law excludes the common writ of error and requires a review on certiorari for the purpose of reversal; and nothing can be more evident than the fact that the reason of the provision weighs much stronger in respect to these cases and their jurisdictions than it does where the ancient writ of error would lie. And when we bear in mind the enlarged authority of these courts in regard to the amount, the attempted discrimination is more obviously unjust. Certainly it could not have been designed by the legislature to place them on a different footing for the purpose of this statute than other courts. If any exception were to be allowed it should be in regard to those courts which are the least liable to miscary.

The writ of certiorari authorized by the statute is in substance a writ of error. For the purpose of reviewing in the circuit court the judgment of a justice of the peace it performs much of the functions of such a writ, and it is not going beyond good sense to regard it, for the purpose of this provision, as such a proceeding.

It follows that the judgment must be affirmed, with costs. (The other justices concurred.)

EDWIN D. R. HOWARD vs. SARAH A. BOND.

Filed October 30, 1879.

A writ of assistance is proper only where a party is concluded by the proceedings and refuses to give up possession on reqnest. A decree of foreclosure provided that in case a sale should be had, surrender of possession should be made to the purchaser on production of the deed, and a certified copy of the order confirming the report of sale after the order had become absolute. May 14th sale was made under the decree to the complainant, report immediately filed, and the usual ex parte order for v3-19 (no. ii)

(289)

confirmation, unless cause to the contrary should be shown within eight days, was entered. Exceptions were filed by defendant's solicitor May 20th, but were not brought on for hearing until August 7th, when they were heard, overruled, and sale again confirmed. June 19th complainant went to the premises, exhibited the commissioner's deed and a certified copy of the order nisi of May 14th, and demanded possession, which was refused. A petition made and sworn to June 20th, for a writ of assistance, was presented and allowed. Defendant appealed. No other demand than that of June 19th was shown. Held, that plaintiff was not entitled to the writ, confirmation being in abeyance until hearing of the exceptions on August 7th.-[ED.

Appeal from Berrien.

Theo. G. Beaver, for defendant.

GRAVES, J. February 20, 1879, the usual decree of foreclosure and sale was granted by the court in favor of complainant, and against defendant, upon pleadings and proof. The sale was limited to take place subsequent to March 24th, and the decree required that in case a sale should be had the surrender of possession should be made to the purchaser "on production of the said deed for such premises, and a certified copy of the order confirming the report of such sale after such order has become absolute."

May 14, 1879, the commissioner sold the mortgaged premises under the decree to the complainant, and immediately filed his report, and the usual ex parte order for confirming the sale, unless cause to the contrary should be shown in eight days, was entered at the same time by complainant's solicitor.

May 20th the solicitor for defendant filed exceptions, but they were not brought on for hearing until the seventh of August following.

Meanwhile, and on June 19th, the complainant went to the premises and exhibited to defendant the commissioner's deed and a certified copy of the order nisi, entered May 14th, and demanded possession, and the defendant refused to give it.

On the seventh of August the court proceeded to hear the objections made and filed against confirming the sale, and after argument by the respective solicitors, overruled the objections and confirmed the sale.

Thereupon complainant presented his petition, made and sworn to on the twentieth of June, for a writ of assistance to dispossess the defendant and put complainant in possession, and it showed no other or further demand of defendant than that made on June 19th.

The court allowed the writ, and defendant appealed. We think the circuit court mistook the practice.

A writ of assistance is proper only where a party concluded by the proceedings refuses to give up possession on request, and it is irregular to grant compulsory process without proper evidence of such contumacy.

The party must be first put in fault, and this must be proved to the court on the application for the writ; but it is plain enough that this requirement cannot be answered by a demand and refusal made before the defendant's right is concluded, and before the right of possession by complainant is positively established.

Such, however, was the case here. The demand was made June 19th, and up to that time the complainant had not become entitled to oust the defendant. He could not insist upon possession or maintain a legal right to enter and put out the defendant prior to confirmation, and as yet the sale had not become absolute.

The ex parte order of May 14th was conditional, and the filing of objections enlarged it. The question of confirmation was in abeyance until the court decided upon the objections on the seventh of August. Hence there was no foundation for demanding possession on June 19th. The right to it by complainant was not yet fixed, and the refusal to yield to his demand, made at that time, did not put the defendant in default. She was not yet bound to give possession, and her refusal was consistent with her legal rights in the case. The order should be reversed, with costs. (The other justices concurred.)

WILLIAM BRONG vs. JAMES H. BROWN.

Filed October 30, 1879.

Where the assignee of a chattel mortgage takes possession, on condition broken, of the mortgaged property, and, retaining the same, assigns the mortgage to another person, he will be held liable as for conversion, and the value of the property so taken will be applied as a payment on the mortgage debt.-[ED.

Case made from Kent.

D. E. Corbitt, for plaintiff.

for defendant.

MARSTON, J. James Farley, to secure the payment of $400 to William Brong, gave him a chattel mortgage upon a span of horses, a wagon, a set of harness, and certain furniture. This mortgage was dated November 9, 1877, and was made payable nine months from the date thereof. On the

nineteenth of the same month defendant Brown, with full knowledge of this mortgage, purchased the horses, wagon and harness from Farley, the mortgagor.

Afterwards, but at what particular time does not appear, Brown, the mortgagee, assigned the mortgage to A. A. Lord, and while Lord was the owner thereof he took possession of the horses mentioned therein, and afterwards reassigned the mortgage to the plaintiff. The plaintiff demanded possession of the wagon and harness, which was refused, when this action of trover was brought to recover the value thereof.

The court charged the jury that in case they found the horses had been taken by Lord while he owned the mortgage, the value thereof ought to be applied as payment on the mortgage, as of the date when they were actually received by him. This was excepted to, and is the only question raised in the case.

In Davis v. Rider, 5 Mich. 423, it was held that where one holding property in mortgage converts it to his own use, the mortgage debt is thereby satisfied to the extent of the value of the property taken. In this case the assignee of the mortgage took the property, and afterwards reassigned the mortgage to the mortgagee, but he retained possession of the horses. By virtue of what right or authority he retained the horses, after reassigning the mortgage, does not appear. Where a mortgagee of chattels, after condition broken, takes possession of a part of the mortgaged property, and, retaining the same, assigns the mortgage to a third party, we think he may well be held to have converted the same to his own use, and that the value thereof should be applied in payment on the mortgage: A mere taking possession of the property alone would not have this effect, as he would have a right to take and retain possession for the purpose of making sale thereof in accordance with the terms of the mortgage.

In this case Lord went further. After taking possession he disposed of all further interest in the mortgage. It does not appear that he either intended to or in terms gave his assignee any right to take or claim these horses, or that his assignee had a right to collect the entire mortgage indebtedness, even if, under the circumstances, this latter right could have been given him. Nor does it appear that Lord at any time took steps looking to a sale of these horses under the power contained in the mortgage, even if he could have sold after making the assignment. Counsel, in their argument and brief, say that Lord had the right to take possession before

default, and retain it until the indebtedness should become due, and that in this case over eight months elapsed between the taking of the horses and the time when the mortgage became due, so that Lord could sell them, and that considerable expense would be incurred for keeping the horses during this time, which should be deducted.

Whether such expense could be deducted or not we need not determine, as the record shows no such state of facts as counsel assumes. At what time Lord took possession does not appear, nor the length of time he retained possession, nor when he reassigned. We cannot presume facts for the purpose of finding error. On the contrary, we must assume that the evidence fully warranted the charge of the court and the verdict of the jury. If not, the party complaining should have shown clearly wherein it failed.

The judgment must be affirmed, with costs. (The other justices concurred.)

MARGARET BURROWS vs. JOHN T. GIBSON and others.

Filed October 30, 1879.

The certificate placed on file upon an attempted levy upon certain real estate described the land as lot 7 of the subdivision of lots 12, 13 and 14 of the Labrosse and Baker farms, so called, in the city of Detroit. The property sought to be reached was lot 7 of John Gibson's subdivision of lots 12, 13, 14 and 18 of the Labrosse and Baker farms, situated on the south side of Pine street, between Sixth and Seventh streets, according to the recorded plat of the same in the register's office of Wayne county. Held, that the description in the levy was insufficient to charge the public with constructive notice of the levy intended.-[ED.

Appeal from superior court of Detroit.

Stewart & Galloway, for complainant.

Alex. D. Fowler, for defendants. GRAVES, J. This is an appeal in chancery by complainant from a determination by the superior court of Detroit. main facts alleged in the bill, so far as now material, are substantially as follows:

The

On the ninth of January, 1878, complainant recovered udgment in the superior court against the defendant John T Gibson for $262.75, and $12 costs; that just after the report in complainant's favor had been filed by referees to whom the case had been referred, and on January 3d, the debtor, John T. Gibson, deeded to his wife, the defendant Mary, lot 7 of the subdivision of lots 12, 13 and 14 of the