HENDERSON V. DESBOROUGH. plaintiff's testimony on the issue joined, that the property was worth more than one hundred dollars, took away his jurisdiction to proceed with the case on the merits. The counsel for plaintiff in error admit that the affidavit, writ and declaration gave the justice jurisdiction of the parties and the subject matter up to the time of trial, but he contends that as it then appeared, from the plaintiff's testimony, that the value of the cattle exceeded one hundred dollars, the justice was ousted of his jurisdiction by the plaintiff's own showing. We cannot accede to this view. It is undoubtedly true that the justice obtained jurisdiction as admitted by the counsel for plaintiff in error; but we think that the fact that the plaintiff in replevin testified that the property was worth more than one hundred dollars, did not divest the jurisdiction. The right of the justice to proceed in the case, and dispose of it upon the merits, so far as any objection founded on the value of the property was concerned, was complete when the parties proceeded to trial upon the general issue, if not before. The question of jurisdiction, as depending on the value of the property, if not closed by the affidavit for the writ, was certainly not open under the general issue. That plea was to the merits, and by putting it in and going to trial upon it without objection, the defendant admitted the authority of the justice to investigate the merits. The justice therefore erred in holding that his right to try the case was determined, and in giving judgment for the defendant in replevin on that ground, and as a consequence the judgment of reversal in the court below was correct. This conclusion would excuse any inquiry as to whether the justice, if the case had been so circumstanced as to justify a judgment against the plaintiff for the value, would have been authorized to give one beyond one hundred dollars. Still, in view of the circumstances of the case, and of the doubt which, it seems, haugs over the point, HENDERSON V. DESBOROUGH. we deem it expedient to state our opinion that whenever, in replevin before a justice, the defendant becomes entitled to recover for the value of the property taken from him on the writ at the instance of the plaintiff, the judgment for the value and for damages in the aggregate may, in consequence of the statutory terms in which the general jurisdiction is given (Comp. L., § 5249), and the special and exceptional provisions regulating replevin (Comp. L., § 5291 and the four following sections, also Comp. L., §§ 6758, 6759), be rendered for the real amount, whatever it may be, proved by the evidence, and not exceeding the limit fixed by the constitution, which is five hundred dollars.-Const., Art. VI., 18. If therefore the justice had committed no error in his earlier ruling, his judgment could not have been reversed for being above his jurisdiction. But as he was wrong in holding that he lacked power to try the case on the merits, the reversal was correct, and must be affirmed, with costs. CAMPBELL and COOLEY, JJ., concurred. CHRISTIANCY, CH. J., did not sit in this case. The Continental Insurance Company v. Susan A. Horton. Practice in supreme court: Evidence: Errors that do not prejudice. A judgmentwill not be reversed for the reception of incompetent evidence when it clearly appears that the evidence so received could not have prejudiced the party raising the objection, nor influence the decision on the merits. Evidence: Value. A daughter of plaintiff who bought many of the articles insured, and was present when others were bought, is a competent witness in an action upon an insurance policy, as to the value of goods burned. CONTINENTAL INSURANCE COMPANY . HORTON. Insurance: Policy: Provision against double insurance. A provision in a policy against double insurance is not violated by a prior policy in another company which was known to both parties while the policy in suit was being negotiated, and which, it was fully understood between them, was to be cancelled if the second policy was taken, and which was in fact cancelled, if not actually before the manual reception of the second policy, at least contemporaneously with its complete and effective delivery. Instruction to the jury: Requests to charge. Where an instruction requested is given with a modification containing an element of error, and the request contained precisely the same error, and it is not certain that it could have mislead the jury, the judgment will not be reversed on this ground, at the instance of the party preferring the request. Suit on an insurance policy was defended on the ground that a subsequent policy was taken out of which no notice was given to defendant. Plaintiff claimed that such policy was never delivered with intent that it should take effect. Held, that on this branch of the case it was sufficient for defendant to answer the objections to the policy actually made by the plaintiff, and that instructions asked by defendant that certain extrinsic facts not relied upon by plaintiff would not avoid it, were properly refused as irrelevant. A request to charge which only differs from the instruction actually given on the same subject in the general charge, in being more verbose and less explicit and clear, may well be declined. Heard October 9 and 10. Decided October 21. Error to Genesee Circuit. This was an action upon a policy of insurance against loss by fire, covering a dwelling house and barn and their contents, brought by Mrs. Horton against the company. She obtained judgment, and the defendant brings error. Howard & Long and Ashley Pond, for plaintiff in error. William Newton and M. E. Crofoot, for defendant in error. COOLEY, J. Of the errors assigned on this record several relate to the admission of evidence which the defense in the court below insisted was immaterial. We have considered each of their objections in the light of the argument that has been made here, and are of opinion that no incompetent evidence was received which could have prejudiced. the defense. And while we agree that the erroneous reception of evidence is presumptively injurious, yet when CONTINENTAL INSURANCE COMPANY . HORTON. the cases are so numerous in which the distinction between that which is admissible and that which is not is faint and shadowy, it becomes absolutely necessary in the administration of justice that an appellate court should guard against being over nice and technical in reviewing the decisions of the circuit courts on the reception of testimony, especially when to all appearance the rulings were harmless. Otherwise a cause may be kept for an indefinite time passing from the circuit to the supreme court on writ of error, and back again for new trials, because those courts happen not precisely to agree on some of the numerous questions of evidence which may arise, and which, decided either way, it can be seen would not be likely to influence a decision on the merits. The objection that the daughter of the plaintiff was allowed to testify to the value of articles burned, without having been shown to possess the proper knowledge to qualify her to speak as an expert, was not well taken. She testified that she bought a good many of the articles, and was present when others were bought. On this evidence she had some knowledge of values which it was proper she should communicate to the jury. The extent of that knowledge, and its sufficiency as a basis for a verdict, were to be tested by her examination, and by the good sense and judgment of the jurors. The most important questions in the case relate to the existence of other insurance. The policy in suit contained a provision that it should be void if the insured should have or procure any other insurance on the property without consent of the defendants endorsed on their policy. It was undisputed that the husband of the plaintiff had previously obtained in his own name an insurance on the same property in the Genesee County Farmers' Mutual Fire Insurance Company, which had not been surrendered or cancelled at the time insurance by the defendants was applied for, and was not noted on the policy. The plaintiff claimed, however, that this previous insurance was void, CONTINENTAL INSURANCE COMPANY V. HORTON. And because the husband was not the owner of the property, and also because the Genesee company, by their articles, were prohibited insuring city property, which this had become by an enlargement of the boundaries of the city of Flint since it was obtained. The plaintiff also claimed that this insurance was actually cancelled before the other was obtained, and gave evidence to that effect. The defense, on the other hand, produced testimony that the cancelment took place the day after their policy was issued, and they claimed that there was evidence from which the jury might infer that the husband, in taking the first policy in his own name, acted with the authority and as agent of the plaintiff, and that she relied upon it as a valid insurance, so that all the evils and temptations designed to be guarded against by the condition against double insurance would exist in the case to the same extent as if the first policy had been valid in fact. they claimed the right to go to the jury on this theory. We are not satisfied that the defense did not have the full benefit of this theory before the jury, but we do not pause to demonstrate this, because we think it unimportant. The undisputed facts are that while the second insurance was being negotiated, both parties were aware of the existence of the prior policy, and it was a part of their understanding that it should be cancelled. It was cancelled in fact, but whether before or after this second policy was delivered, is the disputed point. The most that the defense. can claim is that it was not cancelled until the following day. Their witness was the secretary of the Genesee company, who testifies that plaintiff's husband came to him with the second policy, and asked him to look it over to see if it was good, expressing a purpose to have the first policy cancelled if it was; and on being told it was, the cancelment took place. At this time it is conceded that the premium on the second insurance had not been paid. Now the defense were entitled to have the jury draw any legitimate inference from this evidence; but we have been |