title, claim or interest in or to the same, and said garnishee defendant has paid over to the said plaintiff (the First National Bank of Port Huron) the said amount mentioned in his disclosure, viz.: $83.31 less the sum of ten dollars ($10) paid to the attorney of said garnishee defendant: Therefore it is adjudged and determined that said claimants do recover of and from the said the First National Bank of Port Huron the sum of 75 and 31-100 dollars without costs, and that the said claimants have execution thereof." Treating this order as a judgment in favor of the Mellens, the plaintiff brought error. I. This order is no judgment. There was no suit pending between the plaintiff and the Mellens in which a judgment could be entered. The suit pending was the garnishee suit, the defense of which the Mellens had been permitted to take upon themselves, and this order was collateral to that suit. Error, therefore, would not lie upon it, and the writ will be dismissed, but without costs, no motion for dismissal having been made. This disposes of this record, and we might leave the case here, but it may be advisable to save further litigation over this small sum of money by calling attention to a few obvious facts and principles. II. The judgment against Woodruff did not bind the Mellens, who were no parties to the proceeding, and they would have been under no necessity for moving to vacate it had it not appeared as it did—that the court had made an order staying all proceedings for the collection of the original justice's judgment. Perhaps even that stay was unauthorized, but it was proper to move to get rid of it. III. The circuit court in the exercise of its discretion had the right to vacate the judgment against Woodruff, and when it did so, the fact that Woodruff had made payment to the plaintiff could not protect him against the claim of the Mellens. The money paid would be held by the plaintiff for Woodruff's use, and he would be entitled to have it refunded to him on demand, IV. It seems scarcely necessary to say that the plaintiff had no right, legal or equitable, to retain from another man's money an attorney fee which it had paid in an unsuccessful attempt to get more from him. Woodruff is entitled to judgment in the garnishee suit, and to have back from the plaintiff the whole amount he paid, and the Mellens are left at liberty to collect their judgment of Woodruff. MARSTON, C. J. and GRAVES, J. concurred. JOSEPH P. LEROUX AND MAX SCHOTT, RELATORS V. JUDGE OF THE CIRCUIT COURT FOR BAY COUNTY. Mandamus-Preliminary application to respondent. Mandamus to set aside an order of removal to a federal court was denied without looking into the merits where the record did not show that any application had been made to the respondent to vacate the order. Mandamus. Submitted Jan. 26. Denied Jan. 27. A. McDonell and Griffin & Dickinson for relators. Wisner & Speed for respondent. COOLEY, J. This is an application for a mandamus to respondent, requiring him to set aside an order whereby he transferred to the federal court a certain cause to which relators are parties. No application appears to have been made to the circuit judge himself, and for this reason we deny the application without looking into the merits. We must assume, if the application has merits, the circuit judge. would voluntarily have recognized them. The other Justices concurred. ELISE FOURNIER V. ANNA M. CHISHOLM AND WENCENSLAS FOURNIER. Enforcement of chattel mortgage for moneys invested in homestead. A wife has no equity to interpose her homestead right against a chattel mortgage which she has not signed, where it is given for moneys advanced for the purpose of establishing the homestead. Appeal from Alpena. Submitted and decided Jan. 27. BILL to set aside a chattel mortgage. Dismissal affirmed. Kelley & Clayberg for defendant Chisholm. COOLEY, J. This is a bill to protect alleged rights of complainant to a certain building which she occupies with defendant Fournier, who is her husband, as a homestead. The building is upon land owned by a third party, and defendant Chisholm has a mortgage upon it given by the husband for the benefit of one Dekiese. This mortgage, not having been signed by complainant, she claims is void as to her. It satisfactorily appears that the mortgage was given for moneys advanced by Dekiese from time to time for the very purpose of enabling the husband to build this house, and that it was only by means of these advances that the house was built. Complainant in effect admits this, though she also claims to have put a good deal of money into the house herself. On this subject her evidence is unsatisfactory. We think she has no equity to claim homestead rights as against this mortgage. Some interlocutory orders of the circuit court are complained of, but they were discretionary. Decree affirmed with costs. The other Justices concurred. 45 MICH.-27. 45 417 114 624 45 417 122 135 45 418 98 53 45 418 108 582 AMBROSE L. SOULE V. FLAVIUS J. HOUGH. Constructive possession-Sufficiency of foreclosure by publication. Getting into the back kitchen of an occupied house through an open door when no one is in the room, and boarding up the rest of the house on failing to secure an entrance thereto does not establish such a constructive possession of the premises as will justify committing assault and battery upon the occupants if they attempt to remove obstructions. A house is an entirety so long as it is occupied as such by a tenant, and the possession, by an adverse party, of a single room cannot be held a possession of the building to the exclusion of the tenant. Due diligence in making service of a chancery subpœna upon a defendant who cannot be found is not exercised unless the effort to serve it is continued so long as service can lawfully be made. A foreclosure is invalid that is based on an order of publication made upon complainant's affidavit that defendants could not be found, the subpoena having been returned before the return day. The proof of defendant's absence and of diligence in seeking to obtain Error to Ottawa. Submitted Oct. 6. Decided Jan. 28. Reversed. Akeley & Farr and Norris & Uhl for plaintiff in error. Lowing & Cross for defendant in error. CAMPBELL, J. Soule sued Hough for trespass, including an assault on his person, and the use of force in attempting to expel plaintiff and his family from their dwelling, and various acts of annoyance connected with the conduct in question. Plaintiff was in possession under a party claiming title, and who actually owned it with a right of possession, unless cut off by foreclosure proceedings. The testimony tended to show, and there is nothing contradicting it, that Hough, having got into the outer kitchen. of Soule's house through an open door, when no one was in the room, maintained possession of that, and attempted by force to get into the other part of the house, and failing in this, boarded up the premises and used violence and threatened to kill Soule if he attempted to remove the obstructions. The court in effect charged the jury that the entry into the kitchen gave Hough such possession as justified him, if having title, in boarding up the rest of the house, so as to keep it from being habitable, and that the assault and battery, if committed in an attempt in a reasonable and moderate manner to keep plaintiff from knocking off the boards was not actionable. The doctrine that a party may make entry and hold possession of a part of premises, and thereby get constructive possession of the rest, so as to turn the tenant out if he can do it peaceably, though with some force, cannot be applicable · to such a case as this. The house, so long as occupied by a tenant, is an entirety, and the wholesome rule of law which forbids forcible entry would be of very little use, if by getting a foothold in a single room or outbuilding, an intruder, with or without title, could be held to be in possession of the principal structure to the exclusion of the family in actual occupancy. Under the general rules of law the possession of the principal covers the incident, and possession of the incident does not control but is subordinate. A dwelling is too important a refuge to be destroyed by any such indirection. The case is in its main features not unlike though much worse than Seitz v. Miles 16 Mich. 456; and the testimony indicates a great outrage. The jury could not under the charge have regarded the chief elements of damage. The foreclosure proceedings, which, although pertinent, could not if regular have justified defendant's conduct, are claimed to have been invalid for any such purpose, or for any purpose. They were begun on the 16th of June, 1859, by James P. Scott against Lucy Piquette, Francis Piquette, and George Redfield, in the circuit court for the county of Ottawa. Lucy Piquette was owner of the land mortgaged. The decree was made by default against |