placed in the safe I would not make an entry on the cashbook."

We think the objection was well taken to this testimony. It was irrelevant and immaterial and should have been excluded. The testimony lacks the element of certainty; and it nowhere appears that the money claimed to have been borrowed had any connection with the business of the store, or that on the store-books would have been a proper place for it to have appeared.

The testimony of Marion Chadwick to the effect that he was present on several different occasions when conversation occurred between the deceased and claimant about o'her claims claimant held against deceased, but never heard him say anything about the $500, was also incompetent and had no tendency to show the money was not borrowed.

The same is true of the testimony of the witness Rosewarren, which was objected to. Jurors believe testimony competent for the purpose for which it is admitted, and though very slight evidence of the fact sought to be proved, its weight cannot be controlled by the court; hence the danger of irrelevant testimony of this kind. Much of the negative testimony put in this case was not only irrelevant, but clearly misleading, and the testimony offered from various witnesses that they did not know of deceased having any such amount of money about him or in his hands or "about the establishment," was of the same character and mischievous. It should not have been allowed.

The testimony of Marion Chadwick relating to the setoff, being derived entirely from an inspection of the book or from what the deceased told him, was clearly hearsay and immaterial, and it was error to admit it.

It is not disclosed what connection a purchase of goods in Chicago by the deceased eight or ten days before the $500 was borrowed, on a credit of 30, 60 and 90 days, had with the issues in the case; still the fact was admitted as relevant and competent testimony. It certainly had no tendency to prove the money was not borrowed as claimed, and should not have been admitted.

The widow of the deceased was allowed to testify that she did not know of her husband borrowing any money of claimant. This was irrelevant, and this, with the other testimony of the same class, was hurtful to claimant's interests. She had also been permitted to testify to a conversation she claimed to have heard between her husband and the claimant the next day after the settlement, which was prejudicial to rights of complainant and was offered as such. On the rebuttal the claimant took the stand and proposed to contradict the witness, but was refused leave so to do by the court on the ground that he was prohibited by statute from testifying as to that matter. This ruling was correct. The case comes within the statute and the former ruling of this Court in Downey v. Andrus 43 Mich. 65.

It is usually improper to let the jury take the testimony, consisting of books, papers and depositions etc., with them. to the jury-room. The jury are to receive the testimony in open court. The plaintiff, however, waived the irregularity by allowing it to be done in this case without objection. It is unnecessary to discuss the case further.

The judgment must be reversed and a new trial granted.

The other Justices concurred.

MILTON A. HAMILTON V. REBECCA P. LANGLEY.

Mortgage on leased premises—Presumption of error.

1. A clause in a lease providing that anything placed on the premises shall be liable for the rent, and that the lease shall constitute a mortgage to secure it, and that on default the lessor may seize and sell the property on certain notice, and may retain from the proceeds the rent and the "costs of such sale," does not justify the detention of property so seized if the rent is paid without sale and there is no showing of actual costs or of information thereof to the lessee, or of any notice of proceedings to be taken.

2. Error cannot be presumed; but on the other hand it may be presumed that an appellant's record is as favorable to him as he is entitled to have it as to facts that are so essential that they cannot be overlooked.

Error to Wayne. (Chambers, J.) Jan. 25.-Feb. 6.

REPLEVIN. Defendant brings error.

Hawes & Phelps for appellant.

Charles B. Howell for appellee.

Affirmed.

CAMPBELL, J. Plaintiff recovered in replevin against defendant, before a justice and on appeal, for her unlawful detention of personal property, which she seized under claim for rent and refused to restore without payment of certain alleged charges. She now brings error to this Court on exceptions to the charge, which was in favor of plaintiff's recovery.

It appears from the record that plaintiff was her tenant, and in arrear for some rent. On the 21st of October, 1882, at some time, which is only characterized in the record as before sunset, while his place of business was closed, and he absent, defendant by means of a key which she had kept without his knowledge got into the store and carried off the property in question. The next day, October 22d, he offered to pay the rent due, but she refused to let him have the property unless he would also pay her $9.50 which she claimed as costs of proceedings, under her claim to the rights of a mortgagee. It does not appear from the record what these costs were, and as far as it shows anything it indicates that no expenses, or none of any account had been incurred. It does not appear that she had taken any steps to give notice, or that the notice, if begun, could have cost this sum. Neither does it appear that she explained to him or to any one what these charges were.

On the 1st of November, 1882, she began proceedings to oust plaintiff, and he paid up the rent and the commissioner's costs, but refused to pay her the other sum before demanded. The property was not seized on the writ of replevin, and on the 2d of November, while her proceeding was pending before the commissioner, she advertised the property for sale.

On the trial defendant asked five charges, each of which insisted on a direction that the verdict should be for defendant, for various assumed reasons. The circuit court refused these charges, and ruled that plaintiff was entitled to a verdict.

The defendant's claim to possession arose out of a clause in the lease, whereby it was agreed that all property which was or should be placed on the premises, should be liable, and the lease should constitute a lien or mortgage to secure the rent. It was further provided that on default she might seize the property and sell it as under a default on chattel mortgage, on six day's notice, to be posted in three places in Detroit, and from the proceeds retain the rent and "costs of such sale."

It is not important on this record to consider what is the precise nature of such a security. There is nothing whatever in the record to show that she gave evidence at the circuit of any costs or expenses incurred. It is manifest that there were no costs of sale, and it seems to be fairly implied that she had taken no steps to post notices when she refused to give up the property to plaintiff. It is certain no legitimate costs could have been incurred to the amount claimed, and it is equally clear that she could not hold plaintiff in the wrong until she had informed him distinctly of costs which he was bound to pay. As error cannot be presumed, and as the facts, if existing, were so essential that no one could overlook them, there is no reason to suppose that the record is not as favorable for her as she was entitled to have it. If so, she was evidently in the wrong, and plaintiff was entitled to the judgment which both courts awarded him.

The judgment should be affirmed.

The other Justices concurred

MARY M. WENDELL v. SIEGFRIED HIGHSTONE, JAMES A. MCDONALD AND JOSIAH E. WENDELL.

Mortgagee's lien-Cost of redemption from prior mortgage-Additional security-Opening case on hearing for further proofs.

1. The cost to which the assignee of a second mortgage is put to redeem from the foreclosure of the first is a necessary outlay in aid of the assigned security, and the assignee is entitled to hold the assignment as security for it, but not to make it a personal charge against the assignor.

2. A court of chancery may sometimes award issues or other modes of inquiry, in order to satisfy its own conscience, where the testimony on well-defined issues is conflicting.

3. After the proofs in a chancery cause have been taken, especially if they have been taken in open court, it is not proper upon the hearing to open the case generally for the reception of further proofs, nor to open it at all without special reasons, and then usually for the admission only of formal or documentary evidence, or of testimony that has been overlooked by excusable inadvertence.

4. One who has secured another's debt is entitled to the benefit of any further security which the lien-holder obtains from the debtor; and if the latter security consists of a chattel mortgage and the lienholder disposes of the property which it covers, for his own benefit and without the consent of the person giving the first security, the latter is released, to the extent, at least, of the property so disposed of. And its proceeds must be first applied to the satisfaction of the oldest mortgage if the securities have been so confused by the lienholder as to make it impossible to distinguish between them.

Appeal from Mackinac. (Steere, J.) Jan. 25.-Feb. 6. BILL to obtain release of securities. peals. Reversed.

Complainant ap

Mark Norris and Norris & Uhl for complainant. After proofs are closed in equity further proofs cannot be taken without a showing of cause: Hamersly v. Lambert 2 Johns. Ch. 432; Bogardus v. Trinity Church 4 Sandf. Ch. 369; McClung v. McClung 40 Mich. 496; Slater v. Breese 36 Mich. 90; Abbott v. Alsdorf 19 Mich. 161; Thayer v. Swift Walk. Ch. 384