In replevin against a sheriff for goods levied upon as the prop. erty of a third person, where the issue as to plaintiff's ownership is found against him, judgment is properly entered for a return of the property, without limitation to the amount of defendant's lien.

Error to Mecosta; Edwards, J. Submitted April 21, 1899. Decided June 28, 1899.

Replevin by Fannie Shields and Benjamin T. James against Bert D. Moody, sheriff of Mecosta county. From a judgment for defendant, plaintiffs bring error. Affirmed.

John T. Clark, for appellants.

Joseph Barton, for appellee.

MONTGOMERY, J. This is an action of replevin to recover one brown stallion, one single harness, one road bike sulky, one cutting-box, two canvas tents, one adz, one spike-maul, one sledge-hammer, and one corn-cutter, all of which had been duly levied upon by the defendant, as sheriff, under a valid writ directed against the property of James Shields, the husband of the plaintiff Fannie Shields. The jury rendered a verdict for the defendant, upon which judgment was entered for a return of the property. The plaintiffs moved for a new trial, which was refused, and have brought the case to this court for review on error.

The contention chiefly relied upon is that the undisputed testimony showed that the plaintiffs were the owners of the property, and that a verdict should have been directed in their favor. No request for such an instruction was made, but, as plaintiffs moved for a new trial on the

ground that the verdict was against the evidence, it is necessary to inquire whether there is any testimony to sustain the finding.

The plaintiffs' theory was that a firm known as the Big Rapids Real-Estate Company was composed of the two plaintiffs, and that the property in question all belonged to this firm. Mr. Shields appears to have had full control of the business of the firm, with no definite arrangement as to how he was to be compensated. Mrs. Shields testified that he was to be paid according to what he did. The most valuable of the property is the brown stallion, which Mrs. Shields testifies she bought in Tennessee. It does not appear very satisfactorily where she obtained the money to pay the price, which was about $2,500. She further testified that all the personal property which they brought to Big Rapids was turned over to Mr. Shields for property and interest in lands, and to secure Mr. Stearns upon some paper made by Mr. Shields. It appears that this property was placed with Mr. Stearns as security, and that later on Mrs. Shields paid $382 in full of all demands against Mr. Shields, and Mr. Stearns assigned to her all his right, title, and interest in three horses, including the one in question. This does not show absolute ownership in Mrs. Shields, much less in the two plaintiffs. Certain of the other property was received on a purchase from one Holland. It appears the personal property was purchased in connection with certain farm lands. The title to the lands was taken in the name of Mrs. Shields. James was not named as grantee. It appears that payment was made partly in cash and partly by mortgage. One thousand four hundred dollars was paid down by Mr. Shields with money borrowed in his own name. Apart from many circumstances which are calculated to arouse the suspicion that these transactions are merely colorable, there was ample testimony justifying the conclusion reached.

It is claimed that the judgment for the return of the property was erroneous; that it should have been limited

to the amount of defendant's lien. Plaintiffs made no such contention on the trial. The distinct question presented was whether the plaintiffs were the owners of the property. The jury found they were not. It is only where one party is the general owner, and the other has a lien, that the judgment is limited to the amount of the lien. Alderman v. Manchester, 49 Mich. 48.

The other questions do not appear to us, after full consideration, to require further discussion.

The judgment is affirmed.

The other Justices concurred.

MEESKE v. PFENNING'S ESTATE.

1. SURETIES-CONTRIBUTION-PAYMENT-BY WHOM MADE. The fact that a payment made by a surety, with the consent of his co-surety, in settlement of a claim against them, was by the check of a corporation of which he was an officer, will not affect his right to contribution from the co-surety, where he was charged by the corporation with the amount of the check.

2. APPEAL EXCLUSION OF EVIDENCE - OBJECTIONS -- PRIVILEGED COMMUNICATIONS.

The exclusion of the testimony of an attorney as to a conversation with his client, upon the objection that it was privileged, will not be reviewed, and the character of the testimony, as privileged or otherwise, determined, where appellant conceded below that the conversation was privileged, and merely asked the witness for a conclusion which in that view was incompetent.

Error to Muskegon; Russell, J. Submitted April 19, 1899. Decided June 28, 1899.

Gustav Meeske presented a claim against the estate of

Casper Pfenning, deceased, for contribution to the payment of a claim against them as co-sureties on a bond. The claim was allowed in the probate court, and Helen Pfenning, administratrix, appealed to the circuit court. From a judgment for claimant, defendant brings error. Affirmed.

James E. Sullivan, for appellant.

Stephen H. Clink, for appellee.

HOOKER, J. The Muskegon Brewing Company was a corporation, and its only stockholders were Gustav, Otto, and Paul Meeske, respectively president, treasurer, and secretary. Each used the check of the company to pay his personal obligations, such check being charged against him upon the books of the company. For the fiscal year beginning May 1, 1893, Henry Seider furnished a liquor bond, with. Gustav Meeske and Casper Pfenning as sureties. During that year one Johnson was drowned, and his widow subsequently prosecuted Seider and his bondsmen for causing his death, and recovered a judgment in the federal court at Grand Rapids against all of the defendants. That judgment was paid by Gustav Meeske with the brewing company's check, and he and Pfenning amicably adjusted the matter. Afterwards several children of Johnson began suits against the same parties, one of which went to judgment against them; and Gustav Meeske and Casper Pfenning determined that it would be wise to settle them, which was done for $1,300, which sum was paid, with some other items, by Gustav, with the brewing company's checks. Soon afterwards Pfenning died, and a claim for contribution was filed against his estate by Gustav Meeske.

At the time of said settlement, an assignment of the judgment was taken by the defendants' attorney, who drew it to the brewing company. It never came to the hands of either Gustav or the brewing company, but remained with counsel. Meeske testified that counsel was

not instructed to take such assignment to the brewing company. The defendant's counsel made the claim that the settlement was made with funds of the brewing company, and upon its behalf, and that it became the owner of the judgment and claims, and that the claimant, not having paid the judgment and the amount paid in settlement of other suits, has no right of action against the estate of his co-surety for contribution. The circuit judge left these questions to the jury, with the instruction that unless the claimant had proved that the judgment had been paid by him, and at his expense, he could not recover.

The claimant testified that he directed his lawyer to settle the cases, in accordance with an arrangement between him and his co-surety, Pfenning. He admitted that he paid the money to his lawyer, with which to settle, through a brewing company's check, and testified that he was in the habit of using those checks to pay his individual debts, the amounts being charged to him on the company's books. The defendant introduced no testimony, except that of Mr. Chamberlain, the lawyer who represented the claimant and his co-defendants. He testified that the firm of Chamberlain & Cross defended the case in the federal court, and that their employment was by the Muskegon Brewing Company, who paid them; that, after the judgment was rendered, it was assigned by Mrs. Johnson, for the purpose of taking steps to collect it as against the other defendants, who made no contribution to the payment that was made; that is, he purchased the judgment from the plaintiff with money that was furnished him by the Muskegon Brewing Company, and took an assignment to himself, and held it in trust for that company. He testified further that he was employed by the company to defend the other cases, and was paid by it. A judgment of $350 was obtained in one of these cases. There was talk about settlement, and he was instructed by the brewing company to settle the whole matter. His only talk was with Gustav Meeske. The examination proceeded as follows: