become fixed and in fact appeared; and the proceedings of the city cannot be construed as having the effect to remove it to new ground. The site remained unchanged.

Third. It does not appear to the court that it is open to defendant Lewis, who alone appeals, to question the validity of the order of revivor made after the death of defendant McCormick. He insists that the cause of action as against that party expired, and that the order to revive against McCormick's heirs and legal representatives was consequently void.

They have not appealed against the decree. They do not complain, but acquiesce, and no body else is entitled to object that they are charged with a defunct liability.

If the liability McCormick was under terminated at his death the suit was no longer affected by it, and there was nothing to hinder the prosecution of the case to final decree against the appellant. Comp. L., § 5101.

The claim that William R. McCormick as administrator of Charles S. Pratt deceased, one of complainants, had no interest and ought not to have been made a party on the death of Mr. Pratt, is not much pressed. It possesses no importance. His presence in the record, whether necessary or not, caused no prejudice to appellant, and does not appear to have been objected to. At all events there is nothing in the fact of his being brought in and retained to require any change in the decree, much less a reversal of it.

Fourth. My brethren think that the equity of complainants against the closing up or blocking the street where it now runs, is fully made out without regard to block 231, and that the failure to prove ownership or possession of that block is quite unimportant.

What has been said disposes of all the points urged by appellant's counsel, and the decree must be affirmed with costs.

CAMPBELL, C. J. and CooLEY, J. concurred. MARSTON, J. did not sit in this case.

SAMUEL L. SMITH ET AL. v. HILAIRE DEMARRAIS ET AL.

Trover for value of replevied property.

Trover lies at the suit of defendants in replevin for the value of property not found on execution issued in their favor for its return. The remedy on the bond is not exclusive.

Error to Houghton. Submitted April 17. Decided

June 11.

TROVER. Defendants bring error.

S. F. Seager for plaintiffs in error.

T. M. Brady and Hoyt Post for defendants in error. The remedy on the replevin bond is not exclusive, Bruner v. Dyball, 42 Ill., 34; Yates v. Fassett, 5 Den., 21; Smith v. Snyder, 15 Wend., 324; Burkle v. Luce, 6 Hill, 558; Angel v. Hollister, 38 N. Y., 378; Jennison v. Haire, 29 Mich., 213; Kidder v. Merryhew, 32 Mich., 470.

MARSTON, J. The only question of any importance in this case is, whether, where an action of replevin has been commenced, a trial had upon the merits and a judgment rendered in favor of the defendants for a return of the property, they can after an execution has been issued thereon, and returned unsatisfied, bring and maintain an action of trover to recover the value of the same property?

The remedy which defendants have under such circumstances upon the replevin bond is not exclusive. The judgment in the replevin suit, where a trial is had upon the merits, in favor of the defendants and for a return of the property to them, vests in them the title thereto, and if the plaintiff has so disposed of the property that they are unable to obtain possession thereof, they may bring an action of trover to recover its value.

Upon the rendition of this judgment, the right of

possession which the plaintiffs in that suit had acquired under the writ of replevin was thereby terminated, and the defendants as owners were clearly entitled to the possession; failing to obtain possession, to the value. The judgment of the court was a solemn legal adjudication that the defendants and not the plaintiffs were entitled to the property, and it gave them all legal remedies, not prohibited by statute, to obtain possession of the property or its value.

The judgment must be affirmed with costs.

The other Justices concurred.

PEOPLE EX REL. SARAH HORN V. WAYNE CIRCUIT JUDGE. Boat and vessel law-Bond for restitution.

Under the terms of the boat and vessel law (Comp. L., ch. 210) the county clerk's approval of the bonds offered on obtaining restitution of a vessel seized for debt, is not reviewable by the Circuit Judge upon affidavits contradicting the evidence on which the bonds were approved.

MANDAMUS. Submitted June 4. Granted June 11.

H. C. Wisner and Ashley Pond for the writ.

Geo. H. Lothrop against.

GRAVES, J. This is a demurrer to an application by relator for a mandamus to require respondent to vacate an order of court of the 27th of May last, ordering relator to give security in addition to such as had been previously given and accepted, under the sanction of the clerk in certain proceedings taken against the steamer "Excelsior," under the water craft law, being chapter 210 of the Compiled Laws.

April 25th, 1878, "The People's Ice Company," a domestic corporation, filed complaint with the clerk against the steamer and set up a lien of $25,000 for damages charged to have been caused by the misconduct of the master of the vessel, and the clerk immediately issued to the sheriff the warrant prescribed by section four of the act, to seize and hold her, and on the same day the sheriff made the seizure as ordered.

On the next day, being April 26, the court on relator's application under section seventeen appointed appraisers, and they shortly after made and reported their appraisal of the vessel at $22,500.

May 2d, the clerk, upon due notice and in accordance with the statute, was applied to for a writ of restitution; and on the next day, being May 3d, the parties by their attorneys together with the person offered by relator as surety, appeared before the clerk to consummate lawful security to obtain the release of the steamer in the manner prescribed by the statute, under which she was seized. The surety was examined on behalf of the complaining company, touching his property and liabilities, and on its request the examination was reduced to writing, subscribed by the surety and filed with the clerk.

On the day following the clerk approved of the surety and accepted the bond which relator tendered, and issued a writ of restitution to the sheriff, and thereupon the steamer was restored.

May 9, 1878, the appearance of relator was regularly entered, and on the 15th she filed her answer to the complaint.

May 27th, the company moved the court on affidavits to direct the giving of additional security, and to order the steamer into the sheriff's custody by special writ until such additional security should be given.

The motion was not based in any extent whatever upon the ground that the security under the bond had become imperiled subsequent to the time it was made, or upon the ground of any change in the responsibility

of the surety, and no such ground was shown. The proceeding was based solely upon the claim that an affidavit made to support it, disproved statements of the surety made before the clerk, and on which that officer acted, and established their untruth.

There was no pretense that the clerk had failed to act fairly and justly, or that his opinion had undergone any change. Indeed his affidavit was produced and read, from which it appeared among other things, that from inquiries and his own knowledge, he remained of opinion that the surety's property was more valuable than the latter had represented. The motion was granted and the court made an order that relator give additional security to the complaining company to be approved by the judge; and further, that a special writ issue to the sheriff to take the steamer and all her equipments and hold the same until the additional security should be given, and this is the order which relator asks to have revoked.

The relief prayed for is claimed on two grounds. First. That on a proper construction of the statute the court had no power to make this order.

Second. That chapter 210 is unconstitutional. If the first position is well taken an examination of the second will be needless, and it is not desirable to discuss the validity of the act without strong reason.

The point to be first considered is therefore, whether after the clerk had brought the taking of security and release of the vessel to completion pursuant to the statute, the court possessed the power to intervene as it did, and upon the exclusive ground that an affiant for the motion contradicted the sworn facts on which the clerk made his determination to proceed to oust relator of the possession which that determination and the security sanctioned by it, had given her, and moreover make her right to possession in future depend upon her giving such additional security as should meet the approval of the judge.

39 MICH.-3.