writ of error. The action is for libel, based upon an article published in the Detroit Free Press on Sunday, February 12, 1888. The article and the facts and circumstances surrounding the transaction are so fully set forth in the former opinion it is not necessary to state them here.

It is contended by counsel for defendant that the court should not have allowed the plaintiff, when called as a witness, to go over the whole matter of his arrest and imprisonment in Windsor; that this was an effort on the part of the plaintiff to enhance his damages by bringing into the case facts that are wholly immaterial to the issue, and influenced the jury in their award of damages, by the false imprisonment and by the publication of the facts of his arrest. It appears that upon the trial, when the plaintiff was first interrogated in regard to his arrest and imprisonment, objection was made to the introduction of this testimony on the ground that the effect would be to hold defendant liable for the misconduct of the Canadian officers, and that the plaintiff, in making his case, should be limited to putting the published article in evidence, and the arrest of the plaintiff at Windsor, without going into the facts and circumstances surrounding the transaction in Windsor, and the imprisonment of plaintiff and Mr. French, and their treatment at the hands of these officers. The court ruled this evidence admissible, and permitted the plaintiff on this trial to go fully into all facts and circumstances surrounding the arrest and imprisonment and the publication of the article. It was contended by counsel for plaintiff that the jury should know all the circumstances connected with the arrest of the plaintiff from the time of his going to Windsor until his discharge and return to Detroit, that this was necessary in order to show the falsity of the publication and good intentions of plaintiff in the whole transaction, the false impression that the item tended to convey that plaintiff and French were guilty of a felony, and the carelessness and recklessness of the reporter in his information and in writing the article. It was stated by this court in the former opinion that the item was confessedly untrue in several particulars, and it appears upon this trial that these items all tended, in the connection used, to carry the impression that the plaintiff and French were guilty of a felony, as stated in the former opinion. First, the coincidence, which was not a true one, that about $30 worth of stamps had been stolen from Bothwell, and the same amount found upon these persons; second, that they were hard-looking citi zens, carrying the impression, as Quimby admits, that they were a couple of tramps; third, that they canvassed the entire business part of Windsor in the effort to sell stamps at half price, which contains two untruths; fourth, that they at last tried to sell the stamps to the postmaster. These facts fully appear in the present trial. The plaintiff and his companion, French, were treated by the police of Windsor with rudeness, calculated to arouse great indignation at a bare recital. But the defendant is not to be pun

ished for such treatment. It did not cause the plaintiff's arrest and detention, nor his ill treatment; and it was improp er to permit the testimony relative to what was said and done by the police officers to be given to the jury. The plaintiff had the right to lay before the jury the article published, and to show the facts and circumstances surrounding the transaction, so that the jury might determine the falsity of the article and the manner in which the information was procured which led to its publication. These would be proper inquiries, but the treatment of the plaintiff and French by the chief of police of Windsor and his deputies was wholly immaterial to the issue, and could not be otherwise than prejudicial to the defendant before the jury, who, in estimating plaintiff's damages for injured feelings, would be likely to be affected by a sense of the wrongs perpetrated upon the plaintiff while in the custody of these officers. It is true that the court directed the jury that the only thing in the case was the publication of the matter so far as it was untrue, and that they should not take into consideration in the matter of damages the outrages committed by the Windsor officers, and that whether the arrest was legal or justifiable was wholly immaterial to the issue, and they should not consider the arrest at all, but only the publication. This testimony had been given to the jury, however, tending to create in their minds a feeling of indignation at such ill usage, and the charge very likely would not remove it, and it would more than likely remain with them when they retired to the jury-room to consider of their verdict, notwithstanding the charge. People v. Evans, (Mich.) 40 N. W. Rep. 473.

The counsel for the defendant requested the court to instruct the jury as follows: "(1) The article sued on does not charge or impute to the plaintiff any participation in the Bothwell burglary, but merely states that he was arrested on suspicion thereof, giving in connection therewith some of the facts upon which the suspicion was founded. (2) It appears that the article was true so far as it was stated that McAllister and French were arrested on suspicion of being connected in the Bothwell burglary; that some Canadian stamps were taken from the Bothwell post-office; and that MeAllister and French had canvassed a portion of the business part of Windsor trying to sell Canadian postage stamps at a discount; that they tried to sell the stamps to Postmaster Wigle, who had them arrested; and that they were searched at the station, and some postage stamps were found on one of them; that they gave their names as Edward H. McAllister and Lester B. French; that Chief Bains decided to hold them to await developments. (3) The plaintiff is not entitled to recover anything for publishing the facts stated in the article that are true, and the jury should carefully eliminate from their verdict any allowance on account thereof, the plaintiff only being entitled to recover such damages as resulted from the inaccuracies of the details set forth in the ar

ticle, and from those alone." "(9) The statement in the article that the amount of the burglary was $2,000 is not a material variance from the facts, standing alone. (10) The statements in the article that the plaintiff and his companion were hard-looking citizens is not libelous, and the plaintiff cannot recover anything because that statement might, in the opinion of the jury, be false. (11) The only material variance between the article and the actual facts is the statement that about the same amount of stamps were stolen as were found on the person of plaintiff when he was arrested, but the plaintiff can only recover so far as that statement, considered by itself, created an additional or further belief in the minds of those who read the article that the plaintiff was guilty. (12) The statement that the plaintiff and his companion offered the stamps for sale at the post-office, after having offered them at other places, is not a material variance from the actual facts. (13) The statement that the plaintiff and his companion had canvassed the entire business portion of Windsor appears to bave been substantially true, they having offered the stamps at four places in different parts of Windsor. (14) Under the pleadings and proofs plaintiff cannot recover anything for injuries to his feelings." The circuit judge charged the jury upon the liability of the defendants as follows: "Gentlemen of the jury: The publication in the Free Press of the article complained of in this case was untrue in several particulars: First, the coincidence that about $30 worth of stamps have been stolen from Bothwell, and the same amount found upon these parties; (2) that they were hard-looking citizens; (3) that they canvassed the entire business portion of Windsor in the effort to sell stamps at half price; (4) they went to the postoffice at last, instead of at first. Now, gentlemen of the jury, the defendant might have pub. lished the simple fact that the plaintiff and Mr. French have been arrested on sus picion of having committed the Bothwell burglary. That was true. They were arrested for that reason; and the truth may always be received in libel cases, in bar of such action; but, so far as the article in question, in addition to setting forth the arrest, sets forth circumstances untrue in fact, which had a tendency to induce a belief that the plaintiff was guilty of some complicity in the crime mentioned, it is no doubt libelous, and the alleged circumstances to which I have called your attention have that tendency. It follows that the plaintiff is entitled to a verdict for such sum as will compensate him for the damages he has suffered. The injury to the plaintiff for which the defendant is liable does not arise from stating in the publication that plaintiff was arrested on suspicion, for he was; but how much, if any, was he injured by the errors contained in the statement published? Would people who read the article be more likely to believe that plaintiff had in fact some connection with the burglary by the statement as published than they would if the article had stated that $110 worth of stamps and

about $80 in cash had been stolen from the post-office at Bothwell, and that French and McAllister were arrested on suspicion, and were found to have $27 worth of stamps in their possession, or had it stated that they endeavored to dispose of the stamps by applying, first, at the post-office and afterwards at two or three book-stores and a grocery, and were arrested when they came out of a bookstore, on suspicion of having been concerned in the Bothwell burglary? It is possible that the simple coincidence of the amount of stamps stated to have been stolen, with the amount stated to have been found upon them, may have influenced some readers to believe that the suspicion was well founded. But whether it would have created a better ground for suspicion than the fact of offering $27 worth of stamps for sale at a discount, when $110 worth had been stolen, is problematical. Some readers might have thought that the guilty parties, to avoid suspicion, would not have offered the whole quantity for sale at once, and to them the circumstances would have been as strong, if not stronger, to create suspicion than the coincidence referred to. The plaintiff is damaged, if at all, by this error of statement just to the amount that the people would be more likely to believe the suspicions well founded than they would so believe from the circumstances of plaintiff offering to sell $27 worth of stamps at a discount, and the correct amount of stamps stolen had been stated. And so of the other errors mentioned. Would any person reading the article be less likely to believe the suspicion well founded if it had stated that French had applied to the post-office at first instead of at last, or, instead of saying that two hard-looking citizens canvassed the entire business part of Windsor in the effort to sell stamps at half price, it had stated that they visited the postoffice, two or three book-stores, and a grocery in the effort to sell stamps? The plaintiff introduced no proof as to the extent of the business portion of Windsor, nor as to the appearance of the plaintiff and his companion, other than what the jury could gather from their appearance upon the trial. The libelous article set forth in the declaration is not divisible. The gist of it is that the plaintiff and Mr. French were arrested on suspicion of having been concerned in the crime committed at Bothwell; and circumstances are stated which afford grounds for such suspicion. The words impute a crime, and are actionable without averring special damages. The defendant, under the plea of the general issue, gave notice of justification, and set out the fact of the breaking and entering of the post-office at Bothwell, and the larceny therefrom of a large number of Canadian stamps of the value, to-wit, of $30, and the money, jewelry, etc., to the value of $200; that the plaintiff went to Windsor on the 11th of February, 1888, with a companion, and offered for sale a quantity of Canadian postage stamps of the value of about $30, and among other persons to whom he offered them was the assistant postmaster; that

the assistant postmaster reported the fact of the burglary and larceny at Bothwell, and the attempt of the plaintiff to sell about the same quantity of stamps to a police officer, and therefore the officer had reasonable cause to suspect the plaintiff and his companion, and took them before a police magistrate to be dealt with acording to law. It is sufficient for the defendants to justify so much of the defamatory matter as constitutes the sting of the charge, and it is unnecessary to re peat and justify every word of the alleged defamatory matter, so long as the substance of the libelous charge be justified. But when the article alleged to be libelous is indivisible, and the facts asserted are dependent on each other to impute the defamatory charge, then each material allegation must be justified, or the plaintiff will be entitled to his damages suffered on account of the portion not justified. It is also settled law in this state that, where a full and complete justification cannot be made of each item which goes to make up the libelous article, the facts as they exist may be shown in mitigation of damages, and, if such facts are substantially the same, or not materially variant from those alleged, they shall reduce the damages to a minimum. Sullings v. Shakespeare, 46 Mich. 413, 9 N. W. Rep. 451. It is laid down in Odgers on the Laws of Libel and Slander, at page 170, that, if the substantial imputation be proved true, a slight inaccuracy in one of its details will not prevent the defendants succeeding, providing the inaccuracy in no way alters the complexion of the affair, and would have no different effect on the reader than that which the literal truth would produce; citing Alexander v. Railway Co., 34 Law. J. Q. B. 152; Stockdale v. Tarte, 4 Adol. & E. 1016; Blake v. Stevens, 4 Fost. & F. 239. And if they should find that they were not materially variant, or would not produce a different effect than the literal truth, then the plea of justification had been made out to the whole article; but if they should find to the contrary, then the plaintiff would be entitled only to such damages as the mitigating circum. stances having reference to the actual truth regarding the transaction would, in the opinion of the jury, compensate the plaintiff for the injury sustained by reason of the defendant not having given a truthful statement of what transpired upon the occasion referred to. The court rightly instructed the jury that there could be no exemplary damages under the testimony in the case. The third request of the defendant's attorney states substantially the law applicable to the case, and should have been embodied in the instructions given. The other requests have been disposed of by what has been said above, and were properly refused. The judgment should be reversed, and a new trial ordered.

CHAMPLIN, C. J., and GRANT, J., concurred with LONG, J.

MORSE, J. I concur in the reversal of this judgment on account of the errors noted by Mr. Justice LONG, but I cannot

concur in all that he has said in relation to the probable effect of the difference between the publication and the actual facts upon the minds of those reading the publication. And the effect of the false statements in such publication is for the jury to determine, and not the courts.

court erred in refusing to instruct the jury MCGRATH, J., (dissenting.) I think the as requested by counsel for defendant in his third request, but I think that the error in the admission of the testimony as to the treatment of plaintiff by Windsor officers was cured by the court's charge to the jury.

FRENCH V. DETROIT FREE PRESS CO. (Supreme Court of Michigan. May 8, 1891.) Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

F. A. Baker, for appellant. Corliss, Andrus & Leete, (Edwin F. Conely, of counsel,) for appellee.

LONG, J. The judgment of the court below in this case must be set aside, with costs, and a new trial ordered, for the_reasons stated in the opinion in McAllister v. Detroit Free Press Co., ante, 612. The present case is ruled by that. The other justices concurred.

Laws Mich. 1887, Act No. 262, requires every register of deeds to keep three books of unpaid mortgages, containing a list of all such mortgages from 1880. It requires him in each year to deliver to each assessing officer in his county a copy of said district assessor book containing a list of the unpaid mortgages against the real property in such assessing officer's district, and provides that after the meeting of the board of review the book shal! be returned by the assessor, and the register shall add thereto other mortgages properly belonging therein. It is further provided that each register shall furnish a list of non-resident mortgagees to the register of the county where such mortgagees reside, and that a register on receiving such list shall notify the assessing officer in whose district the mortgagees live. It is further provided that a register shall receive 10 cents for every such notice from the county where the mortgagees reside, and shall also receive for each notice to the assessing officer in his county 10 cents. Held, that a register was entitled to receive from his county 10 cents each for the mortgages reported to him from the other counties, and by him reported to his assessing officers, and to a like sum for each mortgage added to the book-lists since the district assessor books were last delivered to the as

sessing officers, but not for the entries previously

made.

Application for mandamus.

Huggett & Smith, for relator. F. A. Dean and R. W. Shriner, for respondent.

MCGRATH, J. This is an application for mandamus. Relator was register of deeds for the county of Eaton from January 1, 1889, to January 1, 1891. Act No. 262 of the Laws of 1887 requires each register of deeds to keep three books: (1) “A county resident book of unpaid mortgages," in which shall be entered a list of all undischarged mortgages held by residents of that county, from and including 1880, con

taining the names of the mortgagor and mortgagee, the residence of the latter, date and amount of mortgage, and page and book where recorded; (2) "a district assessor book of unpaid mortgages" for each assessment district in that county, in each of which like entries shall be made as to all undischarged mortgages where the mortgagee resides in that district; and (3) "a county non-resident book of unpaid mortgages," in which like entries shall be made as to all undischarged mortgages held by persons who do not reside in that county, but do reside within the state; and every year thereafter it is made the register's duty to add to said list all mortgages that may have since come into his office for record. On or before the 10th day of April in each year he is required to deliver to each assessing officer in his county a copy of the "district assessor book of unpaid mortgages," in which shall be transcribed a list of all mortgages against the real property of such assessing officer's township or district. After the meeting of the board of review this book is returned to the register of deeds by the assessing officer, and the register adds thereto other mortgages properly belonging in that book. Section 5 of the act concludes as follows: "The register of deeds shall make a list or statement in the book known as the 'County Non-Resident Book of Unpaid Mortgages' (mentioned in section one of this act) of all mortgages recorded in his office by residents of the state who are non-residents of the county where said mortgage is recorded, and he shall furnish a complete list of all such non-resident mortgagees [mortgages] to the register of deeds of the county where such mortgagee resides. Such register of deeds, upon receiving such report, shall notify the assessing officer in whose district said mortgagee may reside; whereupon the assessing officer of the district where said mortgagee resides shall assess the same as required by law. The register of deeds shall receive ten cents for every such notice, to be audited and paid in the general manner out of the contingent fund of the county where the mortgagee resides; and the said register of deeds shall also receive for each notice to the assessing officer in his county as provided in this act the sum of ten cents, to be audited and paid out of the contingent fund of said county." The act contains no other provision or compensation for this work. The several books for which the act makes provision had been prepared and written up before relator came into office. In April, 1890, the relator furnished to the assessor of Eaton county district assessor's book, containing lists aggregating 3,012 undischarged mortgages, and assignments of record held by persons residing in Eaton county, and gave notice to assessing officers in that county of 410 mortgages recorded in the state outstide of Eaton County and held by persons residing in that county. In October following, relator presented a claim to the board of supervisors for $342.20, claiming 10 cents each, not only for the mortgages added by him upon the district assessor's books

since the previous year, but for all that appeared upon said books, and he now applies for a mandamus to compel the payment of that amount Respondent denies its liability for the amount as charged, and insists that it is only liable to the payment of 10 cents each for the mortgages which have been reported to the petitioner from other counties, and by him reported to the several assessing officers of his own county. The lists embraced in the several books are transcribed therein but once. The same books are used each year, and belong to the county. Subsequently mortgages are added as they are recorded. Even the district assessor books are returned to the register and the lists added to. I do not think it was the intention of the legislature that each register should make a charge of 10 cents for each entry made by his predecessor, or during the previous year. The register first transcribing the mortgages from 1880 to 1888 upon these books received 10 cents for each mortgage entered thereon. Evidently the intention of the legislature was to preserve this work, and thus avoid the expense of transcribing these mortgages. The purpose of the legislature would be defeated if the claim of the relator is established. I think it clear that each register is entitled to 10 cents for each notice given by him of a mortgage reported to him by a register of another county, and to a like sum for each mortgage added to the book-lists, since the district assessor books were last delivered to the assessing officers. Each register then receives compensation for the work which he performs, and the design of the legislature in preserving the lists is carried out. The application will therefore be denied, with costs to respondent. The other justices concurred.

GREUSEL V. SMITH et al. (Supreme Court of Michigan. May 8, 1891.) COSTS IN PARTITION.

1. Under How. St. Mich. §§ 7897, 7898, 7907, 7917, providing for the allowance to complainant of "costs and expenses," and "costs and charges' in partition to be chargeable upon the proceeds of sales where the premises are sold, and to be proportioned among the parties owning the respective interests when partitioned but not sold, reasonable allowance for the services of complainant's solicitor above taxable costs is authorized.

2. In partition complainant was allowed $200 for a solicitor's services and expenses above taxable costs and abstract fees. Held, that the amount allowed was in the discretion of the lower court, and, in the absence of any abuse of such discretion, is not reviewable.

Stuart, Knappen & Van Arnam, (Fraser & Gates, of counsel,) for complainant. James H. Pound, for defendants.

CHAMPLIN, C. J. A bill of complaint was filed in the circuit court for the county of Wayne, in chancery, by the complainant to obtain partition of certain lands in the city of Detroit, in said county. A decree has been entered for partition in which, among other things, it was referred to a circuit court commissioner to ascertain and report whether actual partition was

practicable, and, if sale was necessary, whether one or more parcels. The commissioner reported that the premises could not be partitioned, but should be sold in two parcels. The report was confirmed, the usual decree of sale made, with the further provision that the expenses of the complainant and of the guardians ad litem of the infant defendants, as well as taxable costs and disbursements, be paid out of the fund, and directing reference to a commissioner to ascertain and report the amount of such expenses above taxable costs. Testimony was taken under this reference, and the commissioner filed his report, finding complainant entitled to $417 for solicitor's fees and expenses above taxable costs and abstract of title, and awarding the guardians ad litem of the infant defendants $100 for solicitor's fees. The defendants filed general exceptions to the report. The exceptions were brought on for hearing, and an order was made allowing complainant $200 for solicitor's services and expenses above taxable costs and abstract fees, and disallowing the commissioner's allowance to the guardians ad litem, as well as all other items allowed to complainant. From this or. der the adult defendants appealed from so much of the decree as awarded complainant her expenses above taxable costs, and the complainant subsequently appealed from the order reducing the allowance found in her favor by the commissioner. But two questions are raised by the appeals: (1) The power of the court in partition cases to award to complainant, out of the fund, a reasonable allowance for solicitor's fees above taxable costs; and, (2) if such power exists, what amount should be allowed and awarded to the complainant in this case. The solicitor for the adult defendants appealing insists-First, that no allowance can be made for solicitor's fees and charges over and above the taxable costs; and, second, if they are allowable, $200 is excessive. The first question involves a construction of the statutes relative to partition. Section 7907, How. St., provides: "The costs and expenses of the proceedings shall be deducted from the proceeds of every sale made by the master, and shall be by him, in the first instance, paid to the complainants or their solicitor." Section 7898 provides that "in all cases the proportion of the expenses of the proceedings shall be deducted from the proceeds of such sale." Section 7897 contains the following clause: "At or before the coming in of the report of sale by the master, then the court shall ascertain and determine what proportion of the proceeds of such sale, after deducting all expenses, "etc. Section 7917 reads as follows: "When a decree confirming the partition made by the commissioners shall be entered, as provided by this chapter, the court shall also adjudge and decree that each of the parties concerned therein, other than the complainants, pay to such complainants a proportion of the costs and charges of the proceedings, to be ascertained by the court, according to the respective rights of the parties, and the proportion of such costs and charges assessed upon the unknown owners to be

chargeable on the part remaining undivided," etc. We think it is the intention of this statute authorizing the partition of the lands to permit the allowance of reasonable and proper charges for the services of the solicitor for the complain. ants, to be paid, in case of sale of the premises, out of the proceeds of such sale, in addition to the other fees and charges allowed by the statute to be taxed in the case; and where the premises are not sold, but are partitioned, then such reasonable charges are to be apportioned among the parties in proportion to the respective interests in the estate partitioned. The words used in the statute in some sections, "the costs and expenses in the proceedings," and in others, "the costs and charges of the proceedings," are intended to include something more than the taxable costs in the proceedings, and must necessarily refer to the reasonable allowance for the services of the solicitor. disposes of the first question stated in the appeal. The other question embraced in the appeal of the complainaut, it appears to us, is left, by the statute, in the sound discretion of the court, in view of the testimony before it, and it is a discretion which will not be reviewed by this court, unless it is made to appear that the circuit court abused its discretion in making the allowance; and we cannot say in this case that there appears to us a plain abuse of discretion. The order appealed from, therefore, will be affirmed, without costs to either party, and the record remanded for further proceedings. The other justices concurred.

This

WEBBER V. RANDALL.1 RANDALL V. WEBBER. (Supreme Court of Michigan. May 8, 1891.) APPEALABLE Order.

Defendant agreed to properly care for plaintiff's herd of cattle, have the proceeds therefrom, and at the end of five years deliver to plaintiff double the number received of like kind. In an action for breach, a decree was entered appointing a receiver to take the cattle and the progeny, cause them to be put in condition for market, sell the same, and bring the proceeds into court, and requiring an accounting, and providing for a personal decree against defendant for any deficiency. Held, that it is an interlocutory order, and not a final decree, fixing an amount due, from which appeal can be taken.

Appeal from circuit court, Saginaw county, in chancery.

James B. Peter, (Wisner & Draper, of counsel,) for appellant. Russell C. Qstrander, for appellee.

CHAMPLIN, C. J. This is a bill and crossbill. In the original bill the complainant, Webber, states that he entered into a contract with Randall, which recited that Randall was the owner of certain lands in Saginaw county, Mich., which he desired to stock with Holstein-Fresian cattle, and that, complainant being the owner of such cattle, the parties agreed together that complainant's cattle should be taken by Randall, and placed upon his farm in Saginaw county, fed and cared for at Randall's expense; the milk and butter from said cattle should be the property of Ran'Petition for rehearing pending.