ten application or otherwise, or if the insured shall have, or shall hereafter effect, any other insurance on the property hereby insured, or on any part thereof, without the permission of this company indorsed hereon, or if the risk shall be increased either by the occupancy of the premises in such a manner as to increase the hazard, or by the erection or occupancy of adjacent buildings, or if the premises shall become vacant or unoccupied, or, if a mill or manufactory, it shall cease to be operated, (unless shut down for repairs,) without a notice to and consent of this company indorsed hereon in each and every case, this policy shall become void: provided, however, that mills or manufactories capable of being operated during certain seasons only shall not be deemed vacant when shut down for the customary period." The mill was burned on the 10th day of September, 1886, and totally destroyed. At the time of the fire it was not running, and had not been running since the 29th day of July, 1886. On the last-named day the plaintiff shows (and it was not disputed in the evidence) that the stock of logs in its boom was exhausted, and the operations of the mill temporarily suspended. A new supply of logs was expected soon, and from day to day up to the time of the burning. The plaintiff had logs in the Pere Marquette river in course of transportation by the boom company, and a boom of logs for its use reached the mill on the day of the fire. The planing-mill was kept in operation all the time, and the shingle-mill crew were waiting, expecting to go to work when logs arrived. It was also shown that the summer of 1886 was a very dry one, and the water being low was the reason of the logs being delayed. The mill was not shut down for good, or for repairs, but temporarily closed waiting for logs. No notice of the stoppage was sent to the insurance company, as the plaintiff claims, because work was intended to be resumed as soon as the logs came, and they were expected daily. It was further shown, against the objection and exception of defendant, that it was a usual and frequent occurrence that other mills in the same locality were shut down or unable to operate this same season and other seasons on account of the low water. The defendant claimed on the trial that it was not liable, because the mill had ceased to be operated without notice to it, in violation of the clause in the policy heretofore quoted. The court submitted this question to the jury, who found specially that the mill had not ceased to be operated within the meaning of the policy. The plaintiff recovered.

The court did not err in so submitting the question. Indeed, from the undisputed evidence, as a matter of law, it must be held that the clause was not violated. The stoppage of the mill was occasioned solely by the want of logs to manufacture. The logs were expected daily, and their not being received was not the fault of plaintiff. It was a mere temporary suspension, which, in the first place, was supposed would only last a few days, and after that from day to day. This clause cannot mean that a stoppage of this kind for a day, or even a week, for want of running material, an event quite likely to occur once or more in any season, would be considered "ceasing to operate." The policy speaks of premises becoming vacant or unoccupied "or, if a mill or manufactory, it shall cease to be operated." This must mean something more than a temporary suspension. It must mean a closing with the intention of ceasing operation, not a shutting down for a few days or weeks because of the happening of events, incident to the conducting of a mill in that locality, and which might be reasonably expected, such as the want of logs because of low water, which caused the suspension in this case. See Whitney v. Insurance Co., 72 N. Y. 120; Insurance Co. v. Leathers, 8 Atl. Rep. 424; Insurance Co. v. Manufacturing Co., (Ill.) 17 N. E. Rep. 776. See, also, Stupetski v. Insurance Co., 43 Mich. 373, 5 N. W. Rep. 401; Shackelton v. Fire Office, 55 Mich. 288, 21 N. W. Rep. 343; Poss v. Insurance Co., 7 Lea, 704. It was proper to show the location of the planing-mill and its connection with the mill burned, and that it was in operation as a part of the sur

roundings of the fire, and as bearing on the main question. So the fact of mills shutting down temporarily for the same reason as this mill was admissible, showing that such stoppages were incident to and to be expected in that locality. After the mill was burned there was considerable correspondence between the companies, as well as interviews between the members of the plaintiff corporation, and the president and secretary of the defendant. The president of the company visited Ludington to ascertain about the loss in the latter part of September, 1886. On that occasion the plaintiff's evidence shows that he was informed of the exact time, 42 days, that the mill was idle. He admits he was told the mill was idle, but did not suppose it was over 10 days. The defendant company, in answer to an inquiry, was informed by letter dated January 3, 1887, of the number of days the mill had been shut down. After that the secretary at Grand Rapids called the attention of Mr. Filer, one of the members of the plaintiff company, to the clause in the policy, but said the insurance company did not intend to stand on technicalities. The first intimation given plaintiff that defendant intended to resist payment of the loss was in a letter, written March 9, 1887, six months after the fire. The question whether the defendant, under these circumstances, had not waived the defense here insisted upon was also submitted to the jury, who found a waiver. We think there was no error in this. We have not set out in this opinion the full facts upon which the waiver was claimed, because we think the plaintiff, under the law, as applied to the undisputed facts, was entitled to a verdict, waiver or no waiver. But the facts claimed, if believed by the jury, were in law sufficient to support their finding that the defense was waived. We find no error in the case. The judgment is affirmed, with costs. The other justices concurred.

1. TAXATION

HILL v. GRAHAM, Treasurer.

(Supreme Court of Michigan. November 28, 1888.)

ASSESSMENT-PARTNERSHIP-MISTAKE IN FIRM NAME.

The Michigan tax act of 1885 provides that for purposes of taxation a firm shall be treated as an individual, and, whenever the name of an owner or occupant of property is required to be entered on the assessment roll, if such property is owned or occupied by a firm, the firm name shall be used. Held, that an assessment against the firm of James H. Hill & Sons, composed of James H., Wilbur H., and Arthur Hill, by the name of James H. & Arthur Hill & Co., was not invalid, no prejudice being shown.

2. SAME-FOREST PRODUCTS-WHEN IN TRANSIT.

Under the Michigan tax act of 1885, § 11, subd. 4, (Sess. Laws 1885, p. 177,) providing that forest products shall be assessed in the township where they may be, except that, where they are in transit to some place within the state, they shall be assessed at such place, an instruction that if the owners were driving the logs towards their destination, or were breaking the rollways and jams for that purpose, or were working on them, in the ordinary way, with a view of driving them towards their destination, or as many of them as the stage of water would permit, then they would be in transit; but if the logs were not in the stream, were not actually started down it, but were in unbroken piles, waiting the breaking up of the river or rise of water, or some future event, before starting, the mere intent of the owners, without any acts showing their present purpose to drive, would not justify the jury in regarding them as in transit,-is sufficiently favorable to the theory that they were in transit.

3. SAME-REPLEVIN.

How. St. Mich. § 8318, forbidding replevin for property taken by virtue of any warrant for the collection of any tax, assessment, or fine, in pursuance of any statute of the state, covers a case where property is seized for a tax which appears on the roll to be regularly assessed in a township where it was subject to be assessed, and which is presumably valid, even though in fact the assessor has made an unauthorized change in the assessment roll in regard to the property.

4. TRIAL-PROVINCE OF COURT AND JURY.

A charge that the evidence shows certain facts is properly refused as an invasion of the jury's province.

Error to circuit court, Chippewa county.

Replevin by Arthur Hill against Harvey Graham, treasurer of the township of Bruce. Verdict and judgment for defendant. Plaintiff brings error. The tax act of 1885, § 11, subd. 4, (Sess. Laws 1885, p. 177,) provides that forest products shall be assessed in the township or ward where they may be, except that, where such property is in transit to some place within the state, it shall be assessed in such place: provided, that all forest products in transit on the second Monday in April, and thereafter, found in the waters or streams of this state, shall be held to have a place of destination at the sorting grounds nearest the mouth of the river, unless the contrary appear.

G. K. Grout, (D. P. Foote, of counsel,) for appellant. (George A. Cady, of counsel,) for appellee.

John H. Goff,

CHAMPLIN, J. This is an action of replevin brought by James H. Hill, Wilbur H. Hill, and Arthur Hill, then composing the firm of James H. Hill & Sons. James and Wilbur having died since the commencement of suit, and their deaths having been properly suggested of record, the case proceeded, and now stands as above entitled. On the 2d of June, 1885, James H. Hill, Wilbur H. Hill, and Arthur Hill, composing the firm of James H. Hill & Sons, resided at Saginaw, and had their business office at East Saginaw, and were engaged in general lumbering business. On that day they entered into a contract with James Redy to cut and put afloat in the Munoskong river, to run and deliver at its mouth, all the pine timber on lands belonging to said firm, or either member thereof, in township 45 N., ranges 1 E. and 1 W., 44 N., range 1 W., and certain specified lands in township 44 N., range 1 E., the whole work to be completed on or before July 1, 1887. In the winter of 1885-86, Redy had cut and banked about 10,000,000 feet of saw-logs. The Munoskong river is a stream down which logs are run to the St. Mary's river. Its course passes through the townships of Bruce and of Pickford. When these logs were cut, the owners designated them to be run to the mouth of the St. Mary's river, and from thence be transported in rafts to Saginaw, to be there manufactured into lumber. But, by the course of events subsequently to the bringing of this suit, the design to manufacture them at Saginaw was not fully carried out, and many of them were sawed into lumber at Detour, in said county of Chippewa. On the second Monday of April, 1886, the supervisor of Bruce township went to the place in his township where the logs were banked, and found the creek bed, which was a small stream, piled full of logs, and also piled back from the creek on dry land a distance of 100 yards. These logs were in piles on the dry ground, and he estimated that there were 11,000,000 feet of them. The creek was frozen up, and the logs were not being run, although preparations were being made to run them when the creek, or "river," as it is called, should be in condition for running logs. The supervisor assessed the logs as personal property, and entered the same upon his assessment roll as follows: Under the heading upon his roll of "Name of Owner or Occupant," "James H. and Arthur Hill & Co. Logs in sections 30 and 32 and 33 and 22, T. 45, 1 E., and sections 23 and 14, T. 45, 9 W.,— amounting to (6,000,000) six million, at ($5) five dollars per thousand. Said logs marked Nice,'" and under the heading "Personal Estate Assessed," he entered the assessment at $30,000. This assessment went before the board of review, and the assessment was entered, in the column headed "Value as Fixed by Board of Review," at the sum of $30,000. About July 24th of that year, the supervisor who made the assessment resigned, and another person was appointed to act in his place. This supervisor took it upon himself, without authority, to alter the assessment upon the roll, by striking out the 6,000,000, and inserting 4,000,000, as the quantity of logs assessed, and by striking out $30,000, and inserting $20,000, as the amount assessed in the column as fixed by the board of review. In this condition the assessment roll went before the

board of supervisors, and subsequently the taxes were extended upon the roll by the supervisor, and it was placed in the hands of township treasurer for collection. The counsel for plaintiff made four written requests to charge, which will be found in the margin,1 all of which requests were refused as presented by counsel.

1. There was no evidence in the case tending to prove the existence of a firm by the name of James H. & Arthur Hill & Co., or that either of the plaintiffs were a member of such firm. The plaintiffs showed that the plaintiffs, James H. Hill, Wilbur H. Hill, and Arthur Hill, composed the firm of James H. Hill & Sons, and that these individuals, as such firm, owned the logs assessed. The first and portion of the third requests are based upon the fact that the logs were not assessed in the proper firm name, and attention is called to the statute which provides that, "for the purpose of assessing property and collecting taxes, a copartnership shall be treated as an individual, and when

'Plaintiffs' requests to charge: "(1) If the jury find that the plaintiffs did not compose the firm of J. H. & Arthur Hill & Company, on the second Monday of April, 1886, then their verdict should be for the plaintiffs. (2) If the jury find that the logs of the plaintiffs had been placed on skidways on the banks of the river, and in the river, and were so situated on the second Monday of April, 1886, and had been thus placed with the intention of running and driving them to their destination outside of the township of Bruce, as soon as the stage of water in the river would permit, then all the logs would be in transit, and not liable to assessment in the township of Bruce for the year 1886, and their verdict would be for the plaintiffs. (3) The evidence in this case shows that the plaintiffs, James H. Hill, Wilbur H. Hill, and Arthur Hill, are the general owners of the logs in question, and entitled to their possession, if the claim made by the defendant is not valid. The defendant, shortly before the writ in this cause was issued, as treasurer of the township of Bruce, in this county, seized and took into his possession these logs, under and by virtue of the tax-roll of the township of Bruce for the year 1886, and the warrant annexed thereto, to satisfy a personal property tax assessed against 'James H. & Arthur Hill & Co.,' and defendant claims a right to the possession of the property under and by virtue of said tax-roll, and the right to satisfy said tax by a sale of such property. The statute under which the tax in question was assessed, and is sought to be enforced, provides that, for the purpose of assessing property and collecting taxes, a copartnership shall be treated as an individual, and, whenever the name of the owner or occupant of property is required to be entered upon the assessment roll, if such property is owned or occupied by a copartnership, the firm name shall be used.' We must look to the official tax-roll to discover against whom property is assessed, and cannot be aided by parol testimony. The assessment in this case was against James H. & Arthur Hill & Co., and the evidence in the case shows that plaintiffs do not, and on the second Monday of April, 1886, did not, compose, and in fact never composed, the firm of James H. & Arthur Hill & Co., and never did business under that firm name, and that neither of them ever belonged to such a firm. It therefore follows, as a matter of law, that the tax was not assessed against these plaintiffs, and their property could not lawfully be taken to satisfy it, and your verdict should be for the plaintiffs. (4) The evidence in this case shows that on the second Monday of April, 1886, one of the plaintiffs resided in the city of East Saginaw, and the other two in the city of Saginaw, in this state, and that they did not, nor did either of them, on that day reside in the township of Bruce, and that they did not have control of, nor hire, nor occupy, a store, mill, office, mine, farm, storage, manufactory, or warehouse in said township for use in connection with these logs, and that the logs in question, and other logs, were cut by James Redy from lands belonging to plaintiffs in this county, during the winter of 1885 and 1886, and were in the usual way of doing such business, and, as fast as they were cut, taken to a banking ground in said township, on the banks of the Munoskong river, a navigable stream, or left upon the bank thereof, to be put into the stream as soon as the condition of the water would permit, to be run to the mouth of said stream, and from there to be towed to a point upon the Saginaw river, as the place of their destination, to be manufactured into lumber. That on the second Monday of April, 1886, a considerable portion of the logs so taken by plaintiffs from their lands were already run and floated down said stream, beyond the limits of said township, and plaintiffs were engaged in putting the remainder thereof into the stream to be run, towed, and transported to said Saginaw river. Such appearing to be the facts, and it also appearing from the evidence in the case that there was no sorting ground of any rafting and driving agent or booming company on said river in said township of Bruce, and that said township was not nearest to the mouth of said river, it follows, as a matter of law, that these logs could not legally be assessed to the plaintiffs in the township of Bruce, and they be required to pay a personal property tax thereon; and your verdict must be for the plaintiffs."

ever the name of the owner or occupant of property is required to be entered upon the assessment roll, if such property is owned or occupied by a copartnership, the firm name shall be used." This section is directory merely, and must be construed in connection with section 89 of the same act, which declares that "no tax assessed upon any property shall be held invalid on account of having been assessed in the name of any other person than the owner." The point has been twice ruled against the plaintiff's position by this court. The first case was that of Lumber Co. v. Collins, 32 N. W. Rep. 923. In that case a tax was assessed and levied against "A. H. Petrie & Co., " upon the roll, when in fact the property assessed, which was both real and personal estate, belonged to the Petrie Lumber Company, a corporation. This court held, under a statute of 1882, which is the same in terms with that of 1885, above quoted, that such assessment was valid, and authorized the township treasurer to collect it by levy and sale of the property of the Petrie Lumber Company. The other case was that of Dairy Co. v. McKinlay, 38 N. W. Rep. 469. In that case the tax was assessed and levied against "D. P. Clay or the Michigan Dairy Co." The Michigan Dairy Company in fact owned the property, and the township treasurer levied upon and sold the property of the Michigan Dairy Company to collect the tax assessed as personal property. The company brought trover against the collector. We held that the assessment came directly within the terms of the curative statute above quoted, and was also ruled by the case of Lumber Co. v. Collins. In this case the property assessed belonged to the plaintiffs, and their property was seized to enforce payment of the tax. We do not see that the rights of the plaintiffs whose property was taxed were prejudiced by the mistake of inserting the wrong name as owner. The names of two of the owners appear in the assessment, and it cannot be claimed that the owners were misled, or made to believe that their property was not upon the assessment roll, or that there was not a sufficient notice of an assessment against their property contained in the roll to call upon them to appear before the supervisor or board of review to object to any assessment against their property appearing upon the assessment roll. It must be held, therefore, that the assessment roll contained, so far as appeared from the face of the roll, a valid assessment and tax against the property of the plaintiffs, which it was to all appearances their duty to pay. This case, as well as the two above referred to, where this point was involved, may be considered as being based upon the facts appearing in the record, that the assessment was made and the collection sought to be enforced against the rightful owner, and that the roll contained sufficient notice to him that his property was assessed. The underlying principles is that a person whose property is liable to assessment for taxes shall not be permitted to evade payment of his just proportion of the public burden by any errors, omissions, or irregularities that do not prejudice his rights. Tyler v. Hardwick, 6 Metc. 470; Westhampton v. Searle, 127 Mass. 502; Sargent v. Bean, 7 Gray, 125; State v. Vanderbilt, 33 N. J. Law, 38; Farnsworth v. Rand, 65 Me. 19; Shoup v. Railroad Co., 24 Kan. 547.

2. The remaining portion of the third request relates to the question of whether the logs were taxable in the township of Bruce. The request was rightly refused, for the reason that it asked the judge to charge the jury what the evidence showed. Had he done so, he would have been invading the province of the jury. Upon the subject of the request, he charged the jury as follows: "The logs in question are what is classed in our tax laws as forest products,' and we have a recent statute in this state which provides that property of that class, owned by residents or non-residents, shall be assessed to the owner, or to the person having control thereof, in the township or ward where the same may be, except that where such property is in transit to some place within the state it is to be assessed in such place. All forest products in transit on the second Monday in April and thereafter, found in the waters