anything to do with the goods unless they were returned to his store. The constable then delivered the key to Mr. Palmer, who took immediate possession of the goods by virtue of the writ of replevin, caused an inventory and appraisal to be duly made, and on the same day, viz., October 12, 1888, a bond was executed and delivered to him, which was intended to be in compliance with section 8324 of Howell's Annotated Statutes. This bond was not signed by the plaintiff, nor any one in its behalf, but was signed by two sureties. In form it was somewhat vague and uncertain, and the penalty named was but $600, while the goods had been appraised at $715.10. This bond is annexed to the return made by the deputysheriff, and is on file among the papers in said cause. Mr. Palmer then turned over the possession of the goods to plaintiff, and it has had the possession thereof ever since.

"In making the inventory, Mr. Palmer and the appraisers made some use of the inventory taken by Mr. Botsford; but such was done only to expedite matters, and as a matter of convenience, and no appraisal had been made before that made by the persons duly chosen by the deputy-sheriff. The inventory and appraisal so duly made are annexed to the return of the deputy-sheriff filed in the cause. Sometime after the service of the writ, viz., October 30, 1888, the deputy-sheriff advertised a sale of the goods replevied, to occur on November 5, 1888. On the day set for the sale the defendant paid to plaintiff the full amount of the mortgage debt, together with costs, and also the sum of $12, which had been previously paid by defendant on the mortgage debt, but for which the plaintiff had failed to give credit. On November 5, 1888, and shortly after defendant had paid plaintiff the full amount, as aforesaid, and had been given a receipt therefor, plaintiff's agent, Mr. Hill, tendered the defendant the immediate possession of the goods replevied, as they stood in the Geminder building; but defendant refused to avail himself of such offer.

"The goods have never been sold by plaintiff, nor by any person acting for or under it. At the time of the seizure of defendant's goods, several articles were taken by the plaintiff which were not covered by the mortgage and were not owned by the defendant. On these goods, which had been taken by the defendant to sell on commission, the latter had paid freightage and cartage,

amounting to $10. The plaintiff has satisfied the claims of the actual owners of these goods for such unlawful seizure and detention in most instances, but the defendant has not been reimbursed for the freightage and cartage indicated. At the time of the seizure by plaintiff, namely, October 4, 1888, the defendant could have bought in the wholesale market goods equally as good as these taken from him for $570, which amount includes freightage, cartage, and other expenses incident to the purchase and transportation of goods bought at wholesale. If the goods taken from him had been new, and in perfect condition, they would have been reasonably worth $1,000 in the Three Oaks market at the time of seizure. As it was, they were reasonably worth $746.90, and such amount could have been realized within a reasonable time, and at an expense not to exceed $80. In fixing these amounts, I have not estimated the value of the Superior Drill Company's goods, nor of those owned by the Deering and McCormick people; it appearing evident that such three firms have been paid by the plaintiff for all losses sustained, and that their goods have been returned to them by the plaintiff. All other goods replevied have been considered in arriving at the values. aforesaid; and, after taking out the Superior Drill, McCormick, and Deering goods aforesaid, the balance of the goods replevied were reasonably worth $746.90, as

aforesaid.

"From the foregoing facts, I find as follows:

"The seizure by Botsford and the constable was a seizure by the plaintiff.

It

"The goods were replevied by plaintiff, and the bond executed and delivered to the deputy-sheriff was sufficient for the purposes of the proceeding. The use of an attachment form, and the recitals as to an attachment in the return of the sheriff, bearing upon oath and proceedings of appraisers, do not invalidate the proceeding. The appraisers were sworn in the replevin suit, and in no other; and it sufficiently appears so from the record. was the duty of the sheriff to have returned the goods to the defendant upon failure of the plaintiff to execute a sufficient bond within 24 hours after seizure; but his failure to do so cannot release the plaintiff in this proceeding. The defendant is entitled to the value of the property taken (except the Deering, Superior Drill, and McCormick goods, aforesaid), notwithstanding the action.

of the sheriff, not making return to defendant within 24 hours.

"The defendant is entitled to recover $746.90; but, under all the circumstances of the case, there will be no allowance made for interest, nor for anything in the nature of punitive damages; nor will there be any allowance for any moneys ever paid by defendant to plaintiff. "The defendant is entitled to the further sum of $10 for freightage and cartage on commission goods, but no allowance is made for income prospective, or other commissions.

"The plaintiff had the right to settle with other firms and individuals whose goods were taken at the time it seized defendant's stock, namely, the Superior Drill, McCormick, and Deering people.

"The defendant is not liable for any rental paid to Geminder.

"Let judgment be entered in favor of the defendant, and against the plaintiff, in the sum of $756.90, and costs of this proceeding.

"At the commencement of this suit, the plaintiff had a valid cause of action against the defendant."

Judgment was entered in favor of defendant for the value of the property at $746.90, and $10 damages, and costs. Plaintiff brings error. No part of the evidence is returned.

We are not called upon to consider the case, further than to determine whether the court was in error in its conclusions of law based upon these findings. From these findings, only one question is presented which we need consider.

It appears that after the defendant paid the mortgage plaintiff tendered the goods back, and the defendant refused to accept them. Under such circumstances the defendant, upon an assessment of damages, had no right to a judgment for the value of the property taken, nor for a return. The plaintiff came lawfully into possession under its mortgage, and by paying the mortgage the defendant cannot turn the plaintiff's possession of the

goods into a wrongful holding, so that he may have judgment for costs. It was and is the defendant's right to have his goods back after paying his mortgage, but he could not insist upon their being returned to his store by the plaintiff. He must take them at the place where. the plaintiff had stored them for safe-keeping.

The judgment of the court below must be reversed, and set aside. Plaintiff will recover costs of both courts; but from such costs, when taxed, defendant will be permitted to set off the $10 found his due by the court below.

The other Justices concurred.

THE CITY OF GRAND RAPIDS V. GAIUS W. PERKINS. Opening streets-View of premises by jury-Evidence-Statutory construction.

1. Whatever the jury may learn of the lands sought to be condemned in a street-opening case under Act No. 124, Laws of 1883, by a view of the premises, may be used by them in determining the weight of conflicting testimony, but upon this view alone they cannot entirely disregard all other evidence, and fix and determine the compensation according to their own whims and caprices. Close v. Samm, 27 Iowa, 503.

2. Upon an appeal in a street-opening case, under Act No. 124, Laws of 1883, the statute provides that the case shall be treated as a chancery appeal, and that the appellate court may affirm, or for any substantial error reverse, the judgment, and may grant a new trial.

3. The question is not before us in the case whether either party, in a street-opening case under Act No. 124, Laws of 1883, may of right demand that the jury view the premises, but it is undoubtedly true that this right exists.

Appeal from superior court of Grand Rapids. (Burlingame, J.) Argued October 25, 1889. Decided November 15, 1889.

Street-opening case. Defendant appeals, Reversed. The facts are stated in the opinion.

Taggart, Wolcott & Ganson, for appellant.

Wm. Wisner Taylor, City Attorney (J. W. Ransom, of counsel), for the city.

[The points of counsel are stated in the opinion.REPORTER.]

LONG, J. This proceeding was instituted by the city of Grand Rapids under Act No. 124, Laws of 1883 (How. Stat. § 1295 et seq.). It was brought for the condemnation of nine parcels of land for the extension and improvement of one of the streets of the city. The cause was duly brought on for trial before a jury, proofs were introduced on either side of the controversy, and the case given to the jury under the charge of the court. After the jury had been in deliberation for some time, they returned into court and asked for further instructions, and the following proceedings were had:

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By a Juror to the Court. I am instructed by this jury to ask you this question: Can we award below the evidence or above it on any one parcel?

By the Court. No, sir.

"By a Juror. That is what we wanted to know. "The Court. Your view of the premises is a portion of the evidence in the case.

"Mr. Tinker. I don't understand they can take their judgment upon that matter outside of the sworn evidence in the case, and award a judgment below or above that evidence; that is my view of the matter.

"Mr. Ransom (city attorney). As the court says, their view of the premises is a portion of the evidence in the