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The only assignment of error is that the findings of fact do not support the judgment.

In Kennedy v. Brown, 50 Mich. 336, it was held that the mortgagee was bound to pay over to the sheriff any surplus for the benefit of the owner of the equity of redemption, and that, if he did not do so, the latter could sue him as for money had and received to his use. In Millard v. Truax, 50 Mich. 343, it was held that where the mortgagee retains on foreclosure any amount bid for the property beyond what is due, and does not pay such surplus to the proper officer for the benefit of the mortgagor or his assigns, the latter can sue either him or the officer to recover the amount. Under the rule laid down in these cases, had Wilkinson actually paid to Baxter the $200 attorney's fees, instead of including them in the note, Wilkinson could have recovered them from Baxter. In Macomb v. Wilkinson, 83 Mich. 486, it was shown, however, that the note was illegal to the extent of the $200, so that there was a loss to Macomb, the purchaser of the note, of that amount, and the interest upon it from September 1, 1876, Wilkinson having credit therefor. This loss was made good out of the Toms estate; and, when the present case was tried, the court below held that the claimant, having paid this amount over to Macomb, had succeeded to the claim, and that such claim should be paid out of the Baxter estate, and was not a loss which should be borne by the Toms estate. In this, we think, the court was correct. Had Toms remitted the cash to Baxter, including this $200 illegal attorney's fees, Wilkinson would have had a right of action against Baxter for its recovery. It is apparent from the record that Baxter had the same benefit of the $200 as though it had been paid in cash to him. In any event, the taking of the $200 was in the interest of Baxter, so that he was primarily liable to repay it. The giving of the note cannot affect

the question. It really belonged to Baxter, and Toms took it for cash, and in payment of his fees. The loss first fell upon Macomb, and the Toms estate made it good, and now calls upon the Baxter estate for repayment; and we think the court below properly found that estate liable.

The claim was not barred by the statute. No right of action accrued against the Baxter estate by the Toms estate until it was compelled to make good the loss suffered by Macomb.

Judgment affirmed.

The other Justices concurred.

THE PEOPLE V. JOHN B. HUGHES.

Liquor traffic-Saloon open after hours.

Where the rooms owned and managed by a saloon-keeper are arranged for use together, and, for the accommodation of customers, are fitted with appliances for games, as well as food and liquors, it is necessary, under the liquor law, that all of the rooms be closed to the public during unseasonable hours.1

Exceptions before judgment from superior court of Grand Rapids. (Burlingame, J.) Argued November 2, 1893. Decided November 17, 1893.

Respondent was convicted of keeping his saloon open after hours. Conviction affirmed. The facts are stated in the opinion.

1

For cases bearing upon this question, see People v. Scranton, 61 Mich. 244; People v. Cox, 70 Id. 247; People v. Beller, 73 Id. 640; People v. Hughes, 90 Id. 368; People v. Ringsted, Id. 371.

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Mitchel & La Grou, for respondent.

A. A. Ellis, Attorney General, and Alfred Wolcott, Prosecuting Attorney, for the people.

HOOKER, C. J. The defendant was convicted of an infraction of the liquor law by keeping his saloon open at night unlawfully. The following diagram shows the situation of the premises:

LUNCH-ROOM.

CLOSET.

BILLIARDS.

BAR.

OFFICE.

The several rooms were all owned and managed by the defendant, though the lunch counter was rented to

another, and operated by him upon his own account.

The room was, however, a part of the saloon. Between this and the billiard room was an open archway several feet wide, without doors. This was provided with a canvas curtain, which buttoned on the sides and at the floor, and which defendant claims was closed on the night in question. The closet in the rear was used from both rooms, defendant claiming it to have been locked on this occasion.

The only question in the case is whether the court erred in instructing the jury that the billiard room was a part of the saloon, so that it was necessary that it be closed. We think that the court was right in so determining. The rooms were arranged for use together, and, for the accommodation of customers, were fitted with appliances for games, as well as food and liquors; and it was necessary, under the law, that all be closed to the public during unseasonable hours.

Counsel for defendant asked that the prosecution call as a witness one Miller, who, they asserted, was present at the transaction. The court declined to require this. But the witness was sworn for the defendant, and testified in the case, and from the record we are unable to discover that the defendant suffered any injury from the ruling.

We find no error, and the proceedings must be affirmed, and the superior court of Grand Rapids directed to proceed to judgment.

The other Justices concurred.

97 MICH.-35.

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1. How. Stat. § 2939, which provides that, in case any person shall
refuse to pay any (village) tax imposed upon his real or personal
property, the marshal shall levy the same by distress and sale
of the goods and chattels of such person, and that for such pur-
pose, and for the collection of such tax, the marshal may bring
suit therefor, confers a right of action for the collection of real
and personal taxes during the lifetime of the tax warrant.
2. How. Stat. § 2952, which provides that, whenever any tax assessed
upon personal property in any village shall be returned by the
marshal for non-payment, he may bring suit in the name of
the village for the recovery thereof against the person or per-
sons against whom the tax is assessed, is intended to authorize
actions after the return of the tax warrant, and applies only
to personal taxes.

Case made from St. Joseph. on briefs November 10, 1893.

(Loveridge, J.) Submitted Decided November 17, 1893.

Assumpsit. Plaintiff assigns error. Affirmed. The facts are stated in the opinion.

T. C. Carpenter, for appellant.

J. W. Flanders, in pro. per.

HOOKER, C. J. This action was brought to collect village taxes upon both real and personal property. It was tried before the court without a jury, and written findings of fact and law were filed, in effect as follows:

1. The plaintiff is a corporation existing under the general laws relative to the incorporation of villages.

2. Defendant, a resident of the village, was duly assessed for taxation for the year 1892 upon real estate, the tax amounting to $145.50.

3. At the same time he was assessed upon personal property a tax amounting to $3.

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