VAN BAALEN U. DEAN. the whole property in them or of some special property, he has a valid title as against all mere strangers; and that any one who, without any right or title, takes them away from him is a wrong-doer, and cannot retain his grasp and preclude a recovery of the possession by showing a possible or actual outstanding right or interest in some third party. -Broom's Com., 801-802. If correct in this view, it follows that the court erred in directing a verdict for the defendants, and that the judgment should be set aside, with costs, and a new trial ordered. The other Justices concurred. Simeon Folsom and another v. Emanuel Teichner. Dissolution of attachment. In proceedings before a circuit court commissioner under the statute (Comp. L. 1871, §§ 6428-31) for the dissolution of an attachment issued upon an affidavit that "the plaintiff has good reason to believe that the defendant has absconded from the state," etc., a showing that the defendant had not, in fact, absconded, will authorize an order of dissolution, notwithstanding the plaintiff had good reason to believe to the contrary. Dissolution of attachment: Statute construed. The provision of the statute (Comp. L. 1871, § 6430), that if the commissioner "shall be satisfied that such plaintiff has not a good and legal cause for suing out the writ," he may order the attachment dissolved, etc., refers to the state of facts made to appear at the hearing before him, and not what appeared to the plaintiff when the affdavit was made; and the "good and legal cause' must be one existing in fact and not merely in the belief of the plaintiff, however well founded that belief may have appeared to him to be. Heard April 18. Decided April 28. Certiorari to circuit court commissioner for Wayne county. Ward & Palmer and C. I. Walker, for plaintiffs in certiorari. Moore & Griffin, for defendant in certiorari. FOLSOM V. TRICHNER. CHRISTIANCY, CH. J. The only question in this case arises upon the affidavit annexed to a writ of attachment issued from the circuit court for the county of Wayne. The affidavit, after stating the indebtedness in due form, states that the plaintiff has good reason to believe, that the defendant has absconded from the state, to the injury of his creditors. This was in compliance with section 2 of chapter 114 of the Revised Statutes of 1846, (Comp. L. 1871, § 6398), sub-division "first," and was sufficient to entitle the plaintiff to the writ in the first instance, and to warrant the seizure of defendant's property under it. But the defendant in attachment applied in due form to a circuit court commissioner, under the act of April 7, 1851 (Comp. L., §§ 6428–31), for a dissolution of the attachment, the plaintiff being cited to show cause why the attachment should not be dissolved and the property attached restored to the defendant. The commissioner upon the hearing found that the defendant had not absconded, but that the plaintiff, at the time of making the affidavit, had good reason to believe that he bad. The commissioner dissolved the attachment, and the plaintiff has brought the proceeding before us by certiorari, his counsel insisting that the fact found, that the plaintiff had good reason to believe the defendant had absconded, was sufficient, not only to warrant the issuing of the writ and seizure of the property, but to maintain the writ and hold the property, though the defendant had not absconded, in fact. This argument assumes, and the plaintiff's counsel frankly admits it, that notwithstanding the plaintiff had good reason to believe the defendant had absconded, yet that the plaintiff was mistaken, the inference that he had absconded was false, and if the plaintiff had known the facts as they really were, he could not have made the affidavit, or FOLSOM V. TEICHNER. obtained the writ. Shall his own mistake as to the facts. give him a right to maintain the writ, when, if he had known the facts and stated them according to the truth, he would not have been entitled to it? This, if we are to give effect to the substance and intention, rather than the mere form of legislative enactments, would seem to involve a singular inconsistency. But the plaintiff's counsel relies upon the language of a part of the third section of the act of 1851, in reference tothe dissolution of attachments, that, "if said judge or commissioner shall be satisfied that such plaintiff has not a good and legal cause for suing out such writ," he may order the attachment dissolved, etc. This, he insists, implies that if the plaintiff had, when the writ was issued, a good cause for suing it out, it is not to be dissolved. But this language, “has not a good and legal cause," etc., understood in its strictly literal sense, and, without reference to other portions, and the obvious purpose of the act, can hardly be said to involve this particular implication; and when considered with reference to all the other provisions of the act and the obvious purposes of the remedy provided by it, it is clear, we think, beyond all controversy, that this language refers to the state of facts made to appear at the hearing before the commissioner, and that the "good legal cause," which alone can sustain the writ on such hearing, must be a cause existing in fact, and not merely in the belief of the plaintiff, however well founded that belief may have appeared to him to be. This, we think, is the fair literal meaning of the words. This point was in effect so decided by this court in Hyde v. Nelson, 11 Mich., 353. And though this precise question was not necessarily involved in the decision in Macumber v. Beam, 22 Mich., 396,-what was there said being rather by way of illustration only, and, therefore, as plaintiff's counsel very properly treated it, of no binding authority as a decision; still we are all of opinion that the FOLSOM U. TEICHNER. views there expressed give a true exposition of the statutes in question. We see no error in the proceedings before the commissioner, and those proceedings must be affirmed, with costs to defendant in error in this court. The other Justices concurred. Ella McSloy v. Michael Ryan. Landlord and tenant: Possession of land: Notice: Service. The notice to pay rent or surrender possession, required by the statute (Comp. L. 1871, § 6706), providing for summary proceedings to recover the possession of land, may be served by delivery on the premises, to a member of the tenant's family, of suitable age and discretion, with a request to deliver the same to such tenant. Evidence: Rent due: Offset: Recoupment. In proceedings under this statute evidence of the landlord's breach of covenants to repair and make improvements, which are independent of the covenant to pay rent, is irrelevant; this proceeding is not one in which, even if the amount of the rent due be in issue, there can be any deduction of offsets, or by way of recoupment. Landlord and tenant: Possession of land: Rent: Demand: Res adjudicate. The issue involved in these proceedings embraces the questions both of rent over due and of a proper written demand of payment or possession; and the rent over due is that due when the demand is made; and any subsequent case that is tried on a new demand is for a cause that originates with that demand, and is a different cause from any prior one based upon a former demand; and a verdict and judgment in the tenant's favor on such prior cause is not conclusive on the question of rent over due, in the absence of any showing that such verdict was based upon a conclusion that no rent was due, notwithstanding the new demand was made before any additional rent had fallen due after the former trial. Possession of land: Amount of rent due: Judgment: Statute construed. Upon the trial in these cases in the circuit, on appeal, it is not requisite that there should be a finding of the amount of rent due; the provisions of the statute (Comp. L. 1871, § 6710), requiring this finding, as well as those providing (§ 6719) "that no writ of restitution shall issue if the defendant shall, within five days after final judgment, pay the amount so found due" and double costs, do not apply to the trial on an appea!; the appeal is allowed only from the "determination or judgment" of the commissioner, and the finding of the amount due, though to be stated in the judgment, is in fact no part of it. Decided April 23. Heard April 13. Error to Wayne Circuit. MOSLOT v. RYAN. George H. Prentis and Wilkinson & Post, for plaintiff in error. George H. Penniman and Moore & Griffin, for defendant in error. COOLEY, J. Ryan, who was landlord of McSloy in respect to certain premises in the township of Hamtramck, took proceedings before a circuit court commissioner to dispossess her, on the ground of neglect and refusal to pay rent which had become due, or to surrender possession for fourteen days after demand thereof. The case was tried with a jury, January 18th, 1871, and the jury returned a verdict of guilty, and that there was due for rent from December 1st, 18:0, to the day of trial, the sum of eighty dollars. McSloy appealed to the circuit court, giving the usual security. On the trial in the circuit court the lease was put in evidence. The term was four years from the first day of May, 1870, at an annual rent of six hundred dollars, the rent for the first four months to be paid in advance, and after that monthly in advance. Ryan by the lease covenanted to make certain repairs and improvements. The notice to pay the rent or surrender possession was not served on the defendant personally, but the witness who served it testified to going to the premises for the purpose, and to seeing the defendant in the hall, who closed the door before he reached it, and that he then went into a bar-room, which would appear to have been under the same roof, and there delivered the written notice to defendant's sister, who was then a member of the family, and asked her to deliver it to defendant. No question is made but that this sister was of suitable age and discretion, and we find no error in the action of the court in holding the service sufficient, or in any of its rulings in respect thereto. The defendant offered evidence to show that complainant had not performed his covenants in the lease in regard |