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ized or adopted by the lienors, and there is nothing to indicate that those parties united their claims and designated any one to enforce them. No steps were taken to that end within the limit of time for such action. They were offered in evidence by plaintiff as contradicting Matice's claim of lien for the same labor, and defendant's counsel objected to them as

"Irrelevant, incompetent, and immaterial,

and for the reason that the lien contained in these claims was lost by reason of the claimant's failure to commence their suit thereon within the time prescribed by statute."

From all of which we are naturally led to infer that their filing was an inadvertence on the part of Matice, which he hastened to correct a few days later by procuring E. J. Doyle, as his agent, to swear to and file a claim of lien for Matice himself in a lump sum of $184.60, including the same labor as the previous claims, implying that Matice, and not the men for whom he had recently assumed to file liens supported by his oath, was the party who performed it. Matice prosecuted this claim to a purported judgment in his own favor against Donovan, who made no defense to it there, and now interposes it as a defense here. The docket entries in evidence signify that it is based upon attachment proceedings under the so-called "log-lien law." The entries, standing alone, fail to disclose sufficient of the proceedings to show that the court had jurisdiction to render such judgment.

Not only must the statutory requirements in such proceedings be strictly complied with (Mathews v. Densmore, 43 Mich. 461 [5 N. W. 669]; Van Norman v. Jackson Circuit Judge, 45 Mich. 304 [7 N. W. 796]), but a party making claim under such special and exceptional proceedings must prove jurisdiction in the court to render judgment, for jurisdiction is not to be presumed in such cases. Proof of the judgment by the docket entry without proof of the affidavit which authorizes issuing the attachment would not establish a valid judgment. Goodrich v. Burdick, 26 Mich. 39.

"A recital of an affidavit in such proceedings is not evidence that such an affidavit was made." Platt v. Stewart, 10 Mich. 260.

It also appears from the transcript of the docket that Donovan at no time appeared in the attachment case in which he now claims Matice has a lien judgment against him. On the return day, August 4, 1911, adjournment was had, on motion of plaintiff, to August 28th, and on the latter date the justice divested himself of jurisdiction by adjourning the case on his own motion to August 29th. This, in legal effect, was a discontinuance of the case. Segar v. Lumber Co, 81 Mich. 344 (45 N. W. 982); Adams & Ford Co. v. Cullen, 159 Mich. 669 (124 N. W. 549); Tiffany's Justice's Guide, § 297, and cases there cited. No other proceedings were instituted to enforce the lien within the statutory period.

But, if the lien was alive and established by a valid judgment as claimed, it only made more secure the debt Donovan owed Matice and which plaintiff here sought to reach by proceedings in garnishment. A debt is none the less subject to garnishment because it is well secured by lien or otherwise and certain of collection. 14 Am. & Eng. Enc. Law (2d Ed.), p. 785; McGurren v. Garrity, 68 Cal. 566 (9 Pac. 839); Culver v. Parish, 21 Conn. 408; Greenman v. Fox, 54 Ind. 267; Dickinson v. Dickinson, 59 Vt. 678 (10 Atl. 821); Blaisdell v. Bowers, 40 Vt. 126, Hills v. Eliot, 12 Mass. 26 (7 Am. Dec. 26); Caldwell v. Stewart, 30 Iowa, 379. The provision of the statute that liens for labor on forest products "shall take precedence of all other claims or liens thereon" does not render the lienor immune from his creditors. It simply gives his lien priority over all other claims or liens of other creditors of the owner of the property on which he has his lien.

Garnishee defendant, Donovan, did not deny owing the amount of plaintiff's judgment to the principal defendant, Matice. He disclosed that he did owe it. In his disclosure entitled "examination of garnishee defendant,"

he swore that he was owing Matice $184.60, when the garnishee summons was served on him, for sawing lumber and ties under a verbal contract by which he was to pay $4 per thousand. thousand. He also disclosed that labor liens had been filed of which he had been notified. He could have relieved himself from all further liability and anxiety by paying the money into court and taking a receipt from the justice therefor, whose duty it would then be to serve written notice on the adverse claimants, and the subsequent proceedings need interest Donovan no more. 1 Comp. Laws, § 1017 (5 How. Stat. [2d Ed.] § 13434); Pecard v. Home & Co., 91 Mich. 346 (51 N. W. 891); Stone v. Dowling, 119 Mich. 476 (78 N. W. 549); Bryant v. Wilcox, 137 Mich. 669 (100 N. W. 918). He has, however, taken upon himself the burden of endeavoring to maintain an untenable claim of lien in Matice's behalf for labor performed, mostly by others, but in part by Matice, the contractor, and by himself, the owner; to the latter extent apparently seeking to secure by a lien on his own property a debt owing to himself by himself. The claim that Matice was entitled to exemption to the extent of work performed by him does not appear to have been presented, or at least urged, in the trial court, and, even if it had been, there is no definite testimony furnishing any data from which the court could have made a finding as to amount or value. Matice was not a hired laborer working for wages, but an independent contractor, hiring laborers himself and engaged in carrying out a contract.

The findings of fact by the trial court are sustained by the testimony, and the result reached in his conclusions of law thereon is correct.

The judgment is affirmed.

MOORE, C. J., and MCALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

HUBBARD v. OLIVER.

1. VARIANCE—NOVATION-FRAUD-CORPORATIONS— STOCK-SALES. There was not a fatal variance, in an action for fraud in a transaction whereby plaintiff canceled certain notes due from defendant, the principal stockholder of a corporation, in exchange for stock in the concern, issued to and standing in the name of defendant who claimed that he caused the amount of the notes to be credited on the company's books to working capital and that the corporation had, without plaintiff's knowledge, assumed to pay the indebtedness; the suit was properly brought against defendant, instead of the corporation, in the absence of testimony that plaintiff consented to a substitution of debtors.

2. SAME-SALES.

As to two shares of stock directly purchased and paid for by plaintiff, an action for fraudulent representations alleged to have been made by defendant was properly brought against him, after rescission and tender of the stock.

STATUTE OF-REPRESENTATIONS

AS TO CREDIT OF

3. FRAUDS, ANOTHER. Plaintiff's case was not governed by the statute requiring representations as to the credit of another person to be in writing, where the proofs showed that defendant sold his own stock, not that of the corporation, and made false statements relating to the value of its property, its net assets and the stock conveyed. 3 Comp. Laws, § 9518, 4 How. Stat. (2d Ed.) § 11402.

4. FRAUD-KNOWLEDGE OR NOTICE-INTENT.

False or fraudulent representations made by defendant as to the value of the stock transferred to plaintiff were actionable whether or not the defendant knew they were false.1

5. SAME-OPINION.

Where defendant was the majority stockholder of a corporation which he had established and had managed and controlled, his representations as to the value of the net assets of the company and of its stock were not mere matters of opin'As to whether statements made without knowledge of falsity constitute a ground of action for fraud, see note in 18 L. R. A. (N. S.) 379.

173 MICH.-22.

ion, but were actionable in favor of plaintiff who had been a mere traveling salesman of the corporation, and who relied on the superior knowledge of defendant.

6. SAME-RESCISSION-TENDER.

And where plaintiff tendered back to defendant the stock received by plaintiff as increased by the act of the corporation increasing its captial stock, after he obtained the shares of defendant, the tender was sufficient; and though plaintiff brought suit for a money judgment the claim of defendant that by so doing he deprived defendant of his defense of usury on certain notes surrendered by plaintiff to him in payment of the stock, was not tenable.

7. SAME-USURY.

While a voluntary payment of a usurious claim does deprive the injured party of any right to recover it, the theory of plaintiff was that he had been fraudulently induced to acknowledge payment of the notes, that payment had not in fact been made, and accordingly he is entitled to recover only the amount legally due on the notes after deducting the interest to the date of sale and that part of the principal which represented usury.

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The trial court was right in excluding testimony offered to show the value of the corporate assets at a time subsequent to the date of the sale of stock.

9. SAME.

And it was proper to exclude evidence of the earning capacity of the company, on a record showing that defendant's representations excluded that element of value.

Error to Kent; McDonald, J. Submitted October 17, 1912. (Docket No. 127.) Decided December 17, 1912.

Case by George C. Hubbard against Joseph W. Oliver for fraud and deceit. Judgment for plaintiff. Defendant brings error. Affirmed on condition.

Norris, McPherson & Harrington, for appellant.
Kleinhans & Knappen, for appellee.

Prior to the year 1907, defendant was the sole owner and operator of a manufacturing business, which he ran

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