reached by or made subject to a levy of execution. Con sequently it has been uniformly held by the courts that at common law a levy of execution could not be made on shares of stock. 1 Cook, Stock, Stockh. & Corp. Law, § 480; Van Norman v. Jackson Circuit Judge, 45 Mich. 204. As the levy upon execution is authorized only by virtue of the statute, its provisions must be substantially observed. 1 Cook, Stock, Stockh. & Corp. Law, § 482. 2 How. Stat. § 7697, provides that any share or interest of a stockholder in any joint-stock company may be taken in execution. The next section provides that a copy of the execution shall be left with the person having the custody of the books and papers of the company. The next section reads: "The officer of the company who is appointed to keep a record or account of the shares or interest of the stockholders therein shall * * * be bound to give a certifiIcate of the number of shares or amount of the interest held by such judgment debtor." As we have already seen, none of the certificates of stock stood upon the books of the company in the name of Mr. Feige after February 10th. This was known to the secretary of the company, and to the bank; but, knowing this, the bank levied upon the stock as though it stood in his name, sold it, and took the avails of the sale. This sale cannot be justified as an execution sale by a creditor of Mr. Feige. Blair v. Compton, 33 Mich. 441; Van Norman v. Jackson Circuit Judge, 45 Mich. 208; Gypsum & Stucco Co. v. Kent Circuit Judge, 97 Mich. 631. Can the sale be justified as a sale by the pledgee? We have already seen the sale cannot be made until notice has been given to the pledgor of the intention to sell. "A sale without a notice is a conversion of the stock." 1 Cook, Stock, Stockh. & Corp. Law, § 477. In Stearns v. Marsh, 4 Denio, 227 (47 Am. Dec. 248), it is held, if the pledgee sell the property, without calling on the pledgor to redeem, the latter may maintain an action for the value of the thing pledged, without tendering the debt, because 118 248 154 645 by the wrongful sale the pledgee has incapacitated himself to perform his part of the contract,—that is, to return the pledge, and it would therefore be nugatory to make the tender; citing Story, Bailm. § 349; M'Lean v. Walker, 10 Johns. 471. In such case the pledgee may recoup the amount of his debt. The sale made was an unlawful sale, and amounted to a conversion. The plaintiff was entitled to recover the value of the shares of stock, less the amount of the debt. The judgment is reversed, and a new trial granted. GRANT, C. J., HOOKER and LONG, JJ., concurred. MONTGOMERY, J., did not sit. RAUB v. NISBETT. 1. ACCOUNT STATED-INSTRUCTIONS-HARMLESS ERROR. An instruction that one to whom a statement of account was rendered was bound to raise objections to its accuracy within a reasonable time, and that 30 days would be a reasonable time for such purpose, is not prejudicial, as limiting him to 30 days as a matter of law, where no distinct error in the account in question is shown, and the only evidence of objection within a period of three years relates to the day after the account was rendered. 2. SAME-EVIDENCE-BOOKS OF ACCOUNT-ADMISSIONS. Testimony that one to whom a statement of account was rendered examined the book from which it was taken, and made no objection to its correctness, renders the book competent as an admission against him. Error to Mecosta; Palmer, J. 1898. Decided September 27, 1898. Submitted June 15, Samuel F. Raub presented a claim against the estate of Stephen S. Wilcox, deceased. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for the estate (William P. Nisbett, administrator), claimant brings error. Affirmed. Frank Dumon and M. Brown, for appellant. L. G. Palmer and C. H. Thrall, for appellee. MONTGOMERY, J. This case has once been before the court, and for a statement of the case we refer to our decision on the former hearing, reported in 111 Mich. 38. On a second trial of the case at the circuit, a verdict was rendered for the estate, the jury finding an account stated. The case is now before us for review of rulings made on this trial. In December, 1890, the deceased rendered an account of sales and expenditures to claimant. The deceased continued to reside at Big Rapids until October 1, 1891, when he removed to West Superior, Wis. He returned to Big Rapids on one or more occasions for a visit before his death, which occurred in March, 1893. It was a matter of dispute whether the claimant objected to the account from the time it was rendered up to the time of the death of Mr. Wilcox. The claimant testified that he did object to the statement to Fred Wilcox, son of deceased, the next day after it was furnished. Fred Wilcox, on the other hand, testified that he rendered the statement to the claimant, and that no objection was made to it, except that he (claimant) thought some of the shingles were sold too low. On this trial the claimant's demand rested upon the theory that all the shingles were not accounted for. The claimant's counsel assign error upon an instruction of the circuit judge as follows: "When the account was rendered, it was the duty of the man to examine the account, and if he did not understand it, or raised any objection to it, within a reasonable time he should have stated his reasons to the party who rendered the account. Now, 30 days would be a reason able time. And if he retained the account longer than a reasonable time in which to make the objection, and made no objection to it, then the law implies an assent on his part, and both parties are bound. He impliedly said, by not objecting, 'The account is correct, and I acquiesce in the statement. It is contended that the court instructed the jury that 30 days was a reasonable time, as matter of law, and it is contended that what would be a reasonable time to object to the account was a question for the jury. This instruction may not have been strictly accurate. We do not find it necessary to hold that the retention of an account rendered for 30 days without complaint will in all cases, as matter of law, constitute such account an account stated. But in this case, if the testimony of claimant was accepted, he objected to the account promptly. If it was to be rejected, there was no evidence of any objection during the lifetime of Mr. Wilcox, a period of nearly three years, nearly one year of which time both parties were residents of the same town. This certainly affords a very strong presumption of the accuracy of the account, and, when taken in connection with the fact that no distinct error in the account was shown, should be held controlling. 1 Am. & Eng. Enc. Law (2d Ed.), p. 451, note 5, p. 452, note 1. A book of account of deceased was admitted in evidence. It is contended that the proper foundation was not laid. It is in evidence, however, that the statement above referred to was taken from the book; that, at the time the statement was rendered, the claimant sat down with book and statement, and looked the book through. This testimony rendered the book competent as in the nature of an admission. Examination of the record convinces us that no error was committed to the prejudice of claimant. The judgment will be affirmed. The other Justices concurred. WALKER v. CITY OF ANN ARBOR. PUBLIC IMPROVEMENTS-BASIS OF ASSESSMENT-LAND VALUES. Under a statute authorizing a city to levy the cost of an improvement upon adjacent property "by foot frontage, according to benefits, or by land values, as the common council shall determine," an assessment based on the value of each parcel “exclusive of improvements" is void. Appeal from Washtenaw; Kinne, J. Submitted June 17, 1898. Decided September 27, 1898. Bill by Bryant Walker, administrator de bonis non of the estate of Corydon L. Ford, deceased, against the city of Ann Arbor and William Rehfuss, county treasurer, to restrain the collection of a special assessment. From a decree dismissing the bill, complainant appeals. Reversed. Hinton E. Spalding, for complainant. O. E. Butterfield, City Attorney, for defendants. MONTGOMERY, J. This bill was filed to restrain the collection of a special assessment, upon property of the estate represented by complainant, to meet the cost of a lateral sewer. The court below dismissed the bill, and complainant appeals. It is contended by the defendants that the decree should be affirmed without reference to the irregularities in the proceedings, if any, for the reason that there is no showing of fraud, and the complainant waited, before taking any proceedings, until the work of the construction of the sewer was completed. Defendants cite, to sustain this contention, Lundbom v. City of Manistee, 93 Mich. 170; Byram v. City of Detroit, 50 Mich. 56; Goodwillie v. City of Detroit, 103 Mich. 283; Fitzhugh v. City of Bay City, 109 Mich. 581; and the curative section of the 118 251 e136 206 118 251 d146 713 118 251 f158 154 |