tracts made, or attempted to be made, prior to its enactment. The contract of insurance set up in the bill is against publie policy, and void. Complainants are not parties to it, neither have they been injured by it. It could not be enforced between the parties in courts of justice; and the fact that one of the parties to the illegal contract has seen fit to pay over to the other the wager does not afford a basis in equity for outside parties to lay claim to the reward of iniquity. It is stated in the bill that, by virtue of the application and issuing of the certificate, Abigail Smith became a member of the society, and that her life was insured by such certificate for $3,000, pursuant to the said charter, by-laws, and certificate of membership; and it is charged that on her death her administrators and heirs at law are entitled to the money. This position is inconsistent with the statement that Abigail Smith not only never signed the application, but was legally incapable of entering into a contract; but if she was, by the proceeding, constituted a member, the character of the transaction is not altered. The insurance was effected, and the beneficiary named had no insurable in Abigail was not a member of Elvira's fam- | ily, or dependent upon her for support, nor a creditor; and that Elvira Smith had no Insurable interest whatever in the life of Abigail Smith. That at the time the application was made and policy issued Abigail Smith was over 70 years of age, and was incompetent and incapable, in law, of making contracts, and was then under guardianship. That she never made or signed the application for insurance, and never paid any of the premiums; but such premiums were paid by said Elvira Smith and Benjamin W. Pinch. That since the death of Abigail the heirs at law and administrator have claimed the money due on said policy, and have notified the insurance company not to pay it to any other persons; yet, notwithstanding, the said company had paid the moneys due and payable upon such insurance policy to Elvira Smith or Benjamin W. Pinch, her assigned agent or attorney, and he now holds the same, and refuses to pay it over to the heirs at law of Abigail Smith, or to her administrator. It further relates that the contract of insurance was made and executed in the state of Michigan, and by the charter and by-laws of the company Abigail Smith then and there became a mem-terest, and the contract was merely a ber of the society, and possessed of all the rights and privileges of the society for herself and personal representatives, heirs, and assigns. The legislature of 1887, by Act No. 187, passed an act to review the laws providing for the incorporation of co-operative and mutual benefit associations; which law went into effect on the 26th day of September, 1887. Section 16 of this act provided that corporations organized, existing, or doing business in this state under or by virtue of the provisions of that act should not issue any policy or certificate of membership upon the life of any person over the age of 65 years, nor upon any person not capable, in law, of making contracts, nor upon any life in which the beneficiary named has not an insurable interest; nor unless the person whose life is proposed for insurance shall have made and signed an application for such certificate or policy. There are other restrictions and regulations in the section, and it contains the provision following: "Any certificate or policy issued in violation of the above provisions shall be void as to the beneficiary therein named; but the amount thereof shall, in case of death, be payable to the heirs of the member." wager upon the life of Abigail Smith, and cannot be enforced, without the aid of a statute authorizing it, either at law or in equity. The decree dismissing the bill of complaint is affirmed, with costs. The other justices concurred. (80 Mich. 472) WILSON V. WILSON. 1. The owner of a bond executed by husband and wife for money borrowed by the wife, and used by her to build on her own land, is, on the wife's death, entitled to allowance of the claim out of her estate. 2. In a suit to enforce a bond executed by a deceased wife, against her estate, plaintiff's daughter, who was a sister of the deceased wife, is a competent witness as to statements made to her by the wife before her death. She is not within the opposite party from testifying in regard to transinhibition of How. St. Mich. § 7545, prohibiting the actions with a deceased party. Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge. Thomas Hislop, for appellant. E. H. Sellers, for appellee. The rights and equities of the heirs of Abigail Smith are based upon the above GRANT, J. The commissioners, appointclause of the statute. It is admitted by ed by the probate court to hear and detercounsel for all parties that the contract of mine claims against the estate of Helen insurance is utterly null and void, as Wilson, deceased, allowed the claim of against publie policy; and counsel for Eliza Wilson for $1,624.58. The adminiscomplainant concedes that, unless the trator appealed from this allowance to above statute applies to this case, the con- the circuit court. The case was tried in tract cannot be enforced by complainants. that court before a jury, resulting in a verThe statute does not in its terms, nor by diet and judgment in favor of the claimimplication, apply to the policy or con- ant. The administrator brings the case tract of insurance in this case. This so- into this court by writ of error. Plaintiff called contract was made more than four introduced in evidence a bond dated May years before the law of 1887 took effect. 1, 1875, executed by George Wilson and The act applies only to corporations or- Nellie Wilson, the deceased, for the sum of ganized under it, and this corporation was $1,400, with interest at 7 per cent., and not. It is not retroactive in its terms, and running to Henry and Eliza Wilson. Hencannot be made to apply to insurance con-ry Wilson assigned all his interest in the for which their joint obligation was given went to improve her separate property. Emery v. Lord, 26 Mich. 431. It will appear from the statement of the charge above given that the trial judge recognized this distinction when he told the jury that they must be satisfied that she (Mrs. Wilson) borrowed the money. Judgment affirmed, with costs. The other justices concurred. (80 Mich. 382) CALDWELL et al. v. BOWEN et al. 1. In replevin for goods sold on the ground that the statement of the buyer as to his financial condition, made to a mercantile agent, on the faith of which the sale was made, was false, the agent, in testifying, may refresh his memory, as to representations of the buyer, from a copy of a statement made by him (the agent) at the time; but where he testifies that he does not remember the figures given him by the buyer, but merely that he went to him and got the statement, he cannot read the copy in evidence. * 2. In a declaration in replevin, an allegation following the description of the goods, "being an invoice * sold to E. T. A. & Co., of ** is mere description; and the declaration is not objectionable on proof that the goods were sold to "E. T. A. "9 3. How. St. Mich. § 8964, provides that, if plaintiff recovers judgment, he shall recover costs "in all actions of replevin, and in all actions for the recovery of any debt, ** * in all cases where the court has exclusive or concurrent jurisdiction." Held that, even if the court has no jurisdiction in cases involving less than $100, plaintiff is entitled to costs, on recovering judgment in replevin, when the declaration and affidavit allege the value of the goods as over $100, and it appears that he sold the goods sued for, a short time before, for the alleged amount, though, by reason of the loss or disposition of the goods, he recovers less than $100 worth. In such case the amount involved is over $100. bond to Eliza. Annual payments of in- | obligation to show only that the materials terest were indorsed on the bond to and including the year 1885. George and Helen Wilson were husband and wife at the time the bond was executed. It is claimed that this money was obtained by Helen for her sole benefit, and was used in erecting a house upon land of which she was the owner in fee. It is conceded that she owned the land, and there is no doubt but that about that time she erected the house upon the land. Mrs. Martha Harris, the daughter of Henry and Eliza Wilson, testified, under objection, that Helen Wilson told her, shortly before the erection of the house, that she was going to borrow the money from her father and mother. Her testimony was competent. It was not within the inhibition of How. St. § 7545, prohibiting the opposite party from testifying to matters which, if true, must have been equally within the knowledge of a deceased party, in a suit prosecuted or defended by the heirs, assigns, legatees, or personal representatives of such deceased person. Another witness by the name of Adams, who was not related to any of the parties, testified that Helen Wilson told him that she obtained money with which to build the house from her husband's parents, Henry and Eliza Wilson. This was, in substance, all the testimony on the part of plaintiff. The defendant introduced no evidence. The court thereupon charged the jury that, if they were not convinced that Mrs. Harris and Mr. Adams told the truth, then the plaintiff could not recover; that if they were satisfied that she borrowed the money, and that it was used for the benefit of her estate, then the plaintiff was entitled to recover, notwithstanding the fact that she was a married woman, and that she and her husband signed the bond; but that, if she and her husband jointly borrowed the money, their verdict must be for the defendant. The circuit court correctly charged the jury, and it is difficult to conceive how the charge could have been more favorable to defendant, or how the jury could honestly have reached any other conclusion. The only evidence in the case bearing upon the question was that she borrowed the money, and that it was used for her sole benefit. Under these circumstances, she was liable. The facts are entirely different from those in Reed v. Buys, 44 Mich. 81, 6 N. W. Rep. 111. In that case the sole defense was that the note was not given for any purpose, relating to her own property or interest, and it appeared conclusively that such was the case. In the case at bar it appears equally conclusive that the bond was given for purposes relating to her own property. But at all events, the jury have so found, and that is conclusive upon us. The position taken by counsel for defendant, that, inasmuch as George Wilson became in law liable upon the bond, his wife was not liable, although she borrowed the money for use upon her own separate estate, is unsound, and unsupported by authority. None of the cases cited hint at any such doctrine. This court has gone no further than to hold that it is not sufficient to warrant a recovery against the wife upon their joint Error to circuit court, Wayne county; CORNELIUS J. REILLY, Judge. Geo. W. Radford, for appellants. John W. Beaumont, (Floyd R. Mechem, of counsel,) for appellees. LONG, J. This action of replevin was tried in the Wayne circuit court before a jury, where the plaintiffs had judgment. Defendants bring error. Twelve errors are assigned. It appeared upon the trial that the plaintiffs, who were copartners doing a mercantile business at Lynn, Mass., sent to E. T. Adams & Co. a quantity of ladies' shoes on or about October 29, 1887. The goods were sold on credit, and were claimed to be worth the sum of $115. The goods were ordered by Mr. E. T. Adams, by letter addressed to the plaintiffs at Lynn, Mass., dated June 1, 1887, and the order to be filled in the following October. It appears that the plaintiffs had, in the January previous, made inquiry as to the financial standing of Mr. Adams; and March 10, 1887, Edward Russell & Co., a mercantile agency, sent them, in answer, that E. T. A. (meaning E. T. Adams) states: "Have no partner, but carry on business as above, [that is, as E. T. Adams & Co.] Have in stock about $18,000; outstanding accounts, $3,000; liabilities, $7,000, of which about $2,500 is to the bank, balance for merchandise. Have met all paper at maturity, but am behind probably 30 days with some of my bills; but owe no one firm over $500." Plaintiffs claim that it was in reliance alone upon this information obtained from this mercantile agency that they sent the goods to Mr. Adams. About November 14th, plaintiffs received a circular letter from Mr. Adams that he was in financial embarrassment. Mr. Adams, in that circular letter, says: "My financial embarrassment, which has been known to many of my creditors, if not all, for some time past, has at last become such that, being unable to see any hope or prospect of future success, I have secured as best I could those who have loaned me the capital with which I have done business, by giving chattel mortgages as follows: To Herbert Bowen, trustee, $3,000.00; Sarah F. Adams, (my mother,) $11.108.00; Laura S. Adams, (my sister,) | $1,506.00." Mr. Adams then gives in this letter his version or explanation of how his embarrassment occurred, and in which he states a large part of this indebtedness as accruing and outstanding prior to Janunry 1, 1887. Immediately upon receipt of this circular letter, the plaintiffs telegraphed Mr. Beaumont, their attorney in Detroit, to rescind the sale to Adams & Co. upon the ground that the statements upon which they relied in making the sale were untrue, and to bring replevin for the goods. The plaintiffs, to make their case on the trial in the court below, produced Mr. W. (Pungs, who testified that he was reporter for R. G. Dun & Co., whose business is reporting the standing and credit of merchants throughout the city and other places; that there are several branches of R. G. Dun & Co.; it is Dun, Wyman & Co. in Canada, and Russell & Co. in several states east; that on March 10, 1887, he vis ited Mr. E. T. Adams for the purpose of getting a statement of his financial condition, and had a copy of the statement with him. Witness was then asked and permit ted to answer the following questions: "Question. Do you remember what the statement made by Mr. Adams was? Answer. I have a copy of it, and will swear that he made it to me; and I remember distinctly going to his store, and getting the statement. Q. Can you refer to the copy, and refresh your recollection in such a way as to remember what the statement was? This was objected to by defendants' counsel as incompetent and immaterial, and the objection overruled. ness answered:) A. Can't remember the figures, but I remember going to the store. QBy refreshing your recollection from the statement, can you say what the figures were, and what the result of the statement was? (This was objected to on the ground that the statement was not in court.) By the Court. If you have any paper or memorandum from which you can refresh your recollection as to what the statement was. A. In my hand I have a copy of it,-a copy of the statement made by him to me. Q. Refresh your recollection. Can you state what the statement was? A. Yes, by A. Yes, by reading it; yes, sir. Q. What was his statement? (This was also objected to on Wit the ground that it was incompetent and immaterial under the pleadings. The witness answered, and gave the same statement that has been heretofore set out as coming from Edward Russell & Co. to the plaintiffs, and upon which they claimed to have given the credit to Mr. Adams.) Q. What did you do with that statement? A. Put it on our records in the office. By Defendants' Counsel. That is read from a statement? A. No, sir; from a copy of the original." Defendants'counsel then moved to strike out the testimony. This the court refused. The witness then testified that he made this statement in the shape of a report, and it went on the books of R. G. Dun & Co. and on the records; that he asked Adams for this statement of his financial standing, and Adams gave it, and knew the witness' business, and the purpose in asking for a statement of his affairs; that the commercial agency of Russell & Co. was of Boston, Mass., and that the statements made to R. G. Dun & Co. are furnished to Russell & Co., of Boston; but that he could not swear that this statement was transmitted to Russell & Co., as he did not do the mailing. The contention of defendants' counsel here is that "it was evidence of a statement, the original of which was not in court, nor any evidence introduced that it had been lost; and the evidence of this statement is obtained from an alleged copy, without proof as to who made the copy, or as to its correctness, further than from Pungs' memory after reading the alleged copy in court two years after it was taken. Nor is there any evidence that the original statement, or a correct copy thereof, was ever furnished to Russell & Co., of Boston, and by them to plaintiffs. Under such circumstances, the original statement, if any was ever made, was the best evidence, and, in the absence of any proof that the original had been lost, the alleged copy was not admissible without proof of its correctness by the clerk or person who made it; and that there is no evidence who made the copy, or how many times it had been copied." The witness, however, testified: "I have a copy of it, and I will swear that he made it to me; and I remember, distinctly, going to his store and getting the statement." It was to this copy that his attention was called, and from which he was asked to refresh his recollection. It did not matter whether it was a copy of the statement, or the one he took at the time he made the visit to Adams to get the information. He could use either to refresh his recollection. The only question is, did it refresh his recollection so that he could, with the aid of the paper, state what Adams told him? The original paper upon which he took down the statement made by Adams would not have been evidence, of itself, of the facts therein stated; and the witness had as good right to refresh his recollection from the copy as he would have had to refresh it from the original. Mr. Pungs says he could not remember the figures, but could remember that he went there and got the statement, and the paper he held was a copy of it. He was permitted to read from the copy held in his hand. As we have said, the copy could not be used in evidence; and it did not appear in the case that the witness, after having refreshed his recollection from the paper, was able to state what Mr. Adams told him, and from which he made his report to R. G. Dun & Co. The effect of receiving the evidence by reading from the paper was the same as though the paper was put in evidence. It was, therefore, but hearsay, and wholly incompetent. Fowler v. Hoffman, 31 Mich. 215; Cameron v. Blackman, 39 Mich. 108; Folson v. Log-Driving Co., 41 Wis. 607; Com. v. Ford, 130 Mass. 64; Huff v. Bennett, 6 N. Y. 337; Howland v. Willetts, 5 Sandf. 219; Railroad Co. v. Adler, 56 Ill. 344; Mead v. McGraw, 19 Ohio St. 55. It is also contended that the plaintiff was not entitled to introduce any evidence under the declaration, for the reason that the declaration alleged that the goods were sold to E. T. Adams & Co. The declaration is in the usual form in replevin; but, after describing the goods, it is alleged: "Being an invoice of goods sold on or about June 1, 1887, by the plaintiffs hereinafter described to Edward T. Adams & Co., of Detroit, Mich." This is mere description, and in no way affected the right of the plaintiffs to proceed as upon a rescission of sale. It is also claimed that the court should have directed judgment for the defendants for costs. The writ was directed to Mr. Bowen, as trustee, and Sarah F. Adams and Laura S. Adams. They had gone into possession under these chattel mortgages, and the officer executing the writ was unable to find all the goods described in the affidavit and writ. An inventory and appraisal was made of the goods actually replevied and turned over to the plaintiffs' firm, from which it appears that the value of such part was only $64.70. The writ and affidavit alleged the value of the whole goods at the sum of $115.50. No evidence is given as to the value of the goods described in the writ and not found, except such as may be inferred from the fact that E. T. Adams & Co. had purchased the identical goods about a month previous, and had agreed to pay therefor the sum of $115.50. Section 8964, How. St., provides that “in the following cases, if the plaintiff recover judgment by default upon confession, verdict, demurrer, or otherwise, in any action or proceeding at law, he shall recover his costs; (4) in all actions of replevin, and in all actions for the recovery of any debt or damages, or for the recovery of penalties or forfeitures, in all cases where the court has exclusive or concurrent jurisdiction." The facts of this case took it out of the rule laid down in Kittridge v. Miller, 45 Mich. 478, 8 N. W. Rep. 94. The action was replevin for a fox-skin. Mr. Justice CAMPBELL said: "This case, which involved only one dollar and a half, was brought in the circuit court, and not before a justice. While the former may have jurisdiction, it certainly ought not to have it, and probably was not intended to have it. Chief Justice MARSTON said: "I am also of opinion that the circuit court had no jurisdiction of the case, because of the amount involved there. in." It is said that the present case in # 99 volved less than $100. This is not true. The affidavit, writ, and declaration all allege the value at $115.50; and the evidence tended to show the value of the whole goods at that amount. The plaintiffs, under the circumstances, had a right to rescind the sale and take their goods. The defendants had no greater rights in them than would E. T. Adams had the writ been brought against him. If the whole goods had been found, no question could have arisen about who was entitled to the costs of the suit, as the value was above $100. The circumstances were such as justified the court, under this statute, in awarding the costs to the plaintiff. For the error pointed out the judgment must be reversed, with costs, and new trial ordered. CHAMPLIN, C. J., and MORSE, J., concurred. GRANT, J. I agree with my brethren that the court erred in permitting witness Pungs to read to the jury the copy of the statement made by Adams to himself. The copy was not admissible in evidence, because the loss of the original had not been shown. The witness had no recollection of the particulars of the statement, and could not testify to them except by reading what he took down at the time. If the witness had produced the original statement, and had sworn that he took down correctly, at the time, what Adams had told him, but that he could not remember it, and could only tell it by reading the statement, I think the statement would have been admissible. In such case, unless the statement can be admitted, or the witness allowed to read it, the testimony must be excluded, because the witness has no independent recollection of what was said. If, at the time a statement is made, particularly where it involves figures, a person makes a memorandum of those figures, he would hardly be entitled to credence if he should swear that he recollected the figures independently of the memorandum. The rule that he may examine the memorandum, and then must swear that he had a recollection of them independent of the memorandum, before he can testify to them, is not, in my judgment, founded upon reason or sound policy. To exclude the statement is to exclude the most reliable evidence, and results either in excluding the evidence altogether, or in placing it before the jury in such a way as to weaken, if not destroy, its value. CAHILL, J., concurred with GRANT, J. (80 Mich. 427) KINGMAN v. SINCLAIR. (Supreme Court of Michigan. May 2, 1890.) MORTGAGES-STATUTE OF LIMITATIONS-DISCHARGE FROM RECORD. A court of equity will, without proof of actual payment, discharge from record a mortgage, barred by the statute of limitations, which was given before complainant's purchase of the land covered by it, by one who then owred an equitable interest therein, and of which complainant had no actual knowledge. Appeal from circuit court, Ottawa coun- | swer as if she had demurred. Proofs were ty, in chancery; DAN J. ARNOLD, Judge. Ward & Ward, for appellant. Chas. E. Soule, for appellee. CAHILL, J. This case involves the question whether a court of equity will compel the discharge from the record of a mortgage against which the statute of limitations has run without requiring proof of the actual payment of the debt. The facts are as follows: In 1863 complainant's husband bought an 80-acre farm in Ottawa county, and moved upon it with his family. Before his death he conveyed it to complainant, who continued to reside on it down to 1885, a period of 22 years. She leased it to a tenant for two years longer, and so was in the unquestioned possession and ownership of the property for 24 years before filing her bill. Desiring to sell the property, complainant, in 1887, procured an abstract of the title, and for the first time learned that there was an undischarged mortgage against the farm given March 11, 1854, by Franklin Nichols, who, at that time, owned the equitable title to the land by virtue of a certificate of purchase issued by the state of Michigan to him. The mortgage was given to Benjamin Allyn for $113.66, due one year after date, with interest at 10 per cent. No payment was ever indorsed on this mortgage, or on the note with it. Benjamin Allyn, the mortgagee, died testate, in 1859, leaving his estate to defendant, Mrs. Sinclair, who was also executrix of his will. In June, 1887, the complainant applied to Mrs. Sinclair for a discharge of this mortgage, claiming that it was a cloud upon her title, and prevented her making a sale of it. She offered to pay the expenses of making a discharge, but Mrs. Sinclair refused to discharge the mortgage without payment. In June, 1888, complainant filled her bill in the Ottawa circuit court in chancery, to compel the discharge of this mortgage. The bill sets up the foregoing facts, and prays that defendant and executrix "may be required, by the order and decree of the court, to execute and deliver to complainant for record a discharge of said mortgage, thereby clearing the same from the record of the title to her said farm, and that, until such discharge shall be executed and delivered, a certified copy of the decree of this court may be recorded and stand in lieu thereof, and that complainant may recover her costs." The defendant appeared, and answered, admitting the giving of the mortgage; that Benjamin Allyn was dead; that defendant was executrix; and that, so far as her knowledge of the matter extends, she knows of no payments on said mortgage, or suits or proceedings to foreclose the same. She admitted that she refused to discharge the mortgage without compensation, because she knew said mortgage had not been paid; claims that the bill is inconsistent and contradictory in stating that the mortgage was both paid and outlawed; and says that, if complainant would do justice and equity in the premises, she would pay said mortgage; denies that complainant is entitled to any relief; and prays the same advantage of her an taken in open court before Hon. DAN J. ARNOLD, circuit judge. No evidence was offered of actual payment of the mortgage, or any part of it, principal or interest; nor was there any evidence that any suit or proceeding had at any time been commenced to foreclose the same, and a decree was rendered in favor of the complainant. Defendant appealed. The claim made by defendant is that, when complainant seeks the aid of a court of equity, she must be willing and ready to do equity; that the moral obligation to pay her debt remains as strong after the running of the statute of limitations as before, and calls upon her to pay the debt; that equity will not and ought not to compel the discharge of this mortgage without actual payment. But this doctrine, if correct, applies only when complainant personally owes the debt which the mortgage was given to secure. Booth v. Hoskins, 17 Pac. Rep. 225. This mortgage was given by some former owner of an equitable interest, and complainant says she never knew of it until 1887. She could not have bought the land subject to it in such a way as to make her personally bound to pay it legally or morally. It was once a lien upon her land; it was never a claim against her. What she seeks is to have this lien, which once existed in fact, and still exists of record, as a cloud on her title, removed. It appears from the testimony that this mortgage is not a mere fancied cloud upon the complainant's title; that she has sold the land, but that the purchaser insisted upon keeping back a part of the purchase money until this apparent mortgage is released. If the defendant, in her capacity as executrix, did not feel authorized to discharge this mortgage, and had based her defense wholly upon that position, disclaiming any right to or interest in the mortgage so far as it constituted a lien upon the complainant's land, the court could very properly have required the complainant to prosecute the suit at her own expense. How. St. 8963. But this the defendant did not do. She defended upon the merits, claiming that the complainant was not entitled to the relief prayed for, and we think the decree below should be affirmed, with costs. The other justices concurred. (80 Mich. 489) FEIERTAG v. FEIERTAG. (Supreme Court of Michigan. May 2, 1890.) ASSUMPSIT-EVIDENCE-BILL OF PARTICULARS. 1. During all the time covered by the declaration, plaintiff was of age, and was living with defendant, her step-mother, and plaintiff was engaged in dress-making, and defendant received were the amount of her earnings, the agreement her earnings. The only disputed questions of fact under which defendant received them, and certain settlements. Held, that these questions were properly submitted to the jury. 2. Where a declaration is amended so as to in clude all that could be set out in a bill of partic ulars, there is no necessity for amending the bill of particulars filed under the original declaration. Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge. Action by Minnie Feiertag against Julia |