The bill prays for an accounting, and that the defendants may be enjoined from further proceeding in said suit of replevin, and that said suit may be declared settled between the parties and dismissed, and the bond therein canceled; and the bill also contains a prayer for general relief.

The single question in the case, in our opinion, is whether or not the plaintiff in the replevin suit, and the complainant here, had a full and adequate remedy at law in the premises. The situation is anomalous and somewhat unusual, owing to the peculiar conditions attaching to the action of replevin. Although not directly alleged, yet we infer from the prayer that the complainant gave in the replevin suit the statutory bond.

At first blush it would seem as though, if the plaintiff in the replevin suit claimed that the same had been settled, it might discontinue its suit upon payment of costs; but the difficulty arising there would be that the defendants would be entitled to a return of the property, or a judgment at least to the extent of their interest therein, at the time of the commencement of the suit, and, the complainant being, as alleged, financially responsible, such judgment might be collected, without resort to an action upon the replevin bond. Under our decisions, in an action on the replevin bond, the defendant in that suit (the plaintiff in the original suit) might show in mitigation of damages that the obligees in the bond had no interest in the property. We have spent some time in the examination of our authorities, and the authorities outside of this jurisdiction, to determine whether the complainant has an adequate remedy in the replevin suit. If it has, there is no occasion to resort to a court of equity. We have reached the conclusion that the matter is fully provided for by our statute, and that an issue can be framed upon the question whether or not the replevin suit has been settled.

We gather from the bill that there was no written stipulation or agreement signed by the parties to discontinue the suit, but that the agreement rests in parol. Circuit Court Rule 39 provides that:

"No private agreement or consent between the parties to a cause, or their attorneys respecting the proceedings in a cause, which shall be denied by either party, shall be binding, unless the same shall have been made in open court, or unless evidence thereof shall be in writing subscribed by the party or his attorney against whom the same is alleged."

It has been held, however, that where there is a misunderstanding between counsel, it is an ordinary exercise of the power of the court to relieve a party who has acted in good faith on a verbal agreement, notwithstanding this rule which has been in existence, in one form or another, for many years. Scott v. Scott, 5 Mich. 106; Campbell v. Barclay, 4 Biss. 517, Fed. Cas. No. 2,352. And it has been held, as to a similar rule, that it did not apply to an agreement to discontinue a cause under special circumstances. Gaillard v. Smart, 6 Cow. (N. Y.) 385; Turner v. Burrows, 1 Hill (N. Y.), 627.

We think the learned trial judge was not in error in holding that the question of the alleged settlement, when asserted at least by a plaintiff, could not be tried under the ordinary issue in the replevin suit, as the action is to be tried under the declaration and plea upon the state of facts existing at the time of its institution (Wells on Replevin, p. 674); nor could it be disposed of upon mere motion or affidavit.

Under the heading "General Provisions Concerning Actions," section 10402, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13116), provides that:

"Whenever a suggestion shall be made upon the record, or in any stage of the proceedings in any cause, which the adverse party shall have a right to controvert, a copy of such suggestion shall be served

upon the adverse party or his attorney, in the same manner as other pleadings, and such party may plead thereto, according to the practice of the court, in the same manner, and within the same time, as to a declaration."

The next section provides that:

"If an issue of fact be joined upon any such suggestion, the same shall be tried, and judgment rendered thereon, as on other issues."

The succeeding sections provide for the practice. A suggestion is a statement, formally entered on the record, of some fact or circumstance which will materially affect the further proceedings in the case, but which for some reason cannot be pleaded. Under this statute many such issues have been framed and tried, as will appear by a reference to the following cases: Haywood v. Johnson, 41 Mich. 598 (2 N. W. 926); Stringer v. Dean, 61 Mich. 196 (27 N. W. 886); Muskegon Booming Co. v. Circuit Judge, 97 Mich. 622 (57 N. W. 190); Turner v. Tunnel Co., 102 Mich. 574 (61 N. W. 72), see note; Caille Bros. Co. v. Circuit Judge, 155 Mich. 480 (120 N. W. 6); Grand Rapids, etc., R. Co. v. Circuit Judge, 161 Mich. 181 (126 N. W. 56); Foley v. Railroad Co., 168 Mich. 496 (134 N. W. 446); 1 Green's Michigan Practice, p. 220; 1 Abbott's Practice (Mich.), § 947.

Section 10090, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12740), provides for a reference to try such an issue as is here indicated. We are therefore of opinion that complainant has an adequate remedy at law in the replevin suit, and that the circuit court should have sustained the demurrer and dismissed the bill of complaint.

The order of the circuit court is therefore reversed, with costs to the defendants.

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

186 Mich.-40.

SUNDAY LAKE IRON CO. v. TOWNSHIP OF WAKEFIELD.1

In an action to recover back taxes paid under protest by a mining corporation, the question of fraud in overvaluing the property is for the jury only if there is legitimate evidence to raise the issue, and the question whether or not there is any probative evidence of fraud is a question of law for the court.

Fraud is never presumed; there must be evidence tending to prove it. It must be something more than an honest mistake in judgment to defeat a tax.

3. SAME.

Mere excessiveness does not evince fraudulent conduct on the part of the officials, if they have not acted from improper motives: but if the assessment is purposely made too high through prejudice or a reckless disregard of duty in opposition to what must necessarily be the judg ment of all competent persons, the case is a plain one for equitable relief.

4. SAME-APPRAISAL-EQUITY.

Evidence that, in valuing the plaintiff's mine, the State tax commissioners used information obtained from mining experts, also taking into consideration the Finlay method of appraisal; that one or more of the commissioners was familiar with mining and exploration, and that no malice or bad faith was established, did not tend to show fraud: the assessment, whether too high or not, was valid,

5. SAME STATE TAX COMMISSION.

1

Evidence held, to be insufficient to show reckless disre gard of duty on the part of the commissioners, in opposi tion to what must necessarily be the judgment of all competent persons or to warrant the finding that mining property was fraudulently overvalued in relation to other property.

Removed to United States Supreme Court by writ of error October 8, 1915.

Error to Gogebic; Cooper, J. Submitted January 7, 1914. (Docket No. 3.) Decided June 14, 1915.

Assumpsit by the Sunday Lake Iron Company against the township of Wakefield to recover back taxes paid under protest. Judgment for defendant on a verdict directed by the court. Plaintiff brings Affirmed.

error.

William P. Belden (Horace Andrews, of counsel), for appellant.

J. A. O'Neill and Le Gendre & Driscoll, for appellee.

KUHN, J. This action is brought in assumpsit to recover from the defendant $31,910.45 in taxes on its property for the year 1911, paid by the plaintiff under protest. At the conclusion of the testimony, the trial court directed a verdict for the defendant of no cause of action, and, judgment being entered thereon, plaintiff brings the case to this court for review by writ of error.

The property of the plaintiff was assessed in the years 1910 and 1911 by the township supervisor at $65,000. In 1911, the board of State tax commissioners, acting under authority of legislative enactment (Act No. 114, Pub. Acts 1911), employed an expert mining engineer, Mr. James R. Finlay, of New York City, to assist it in making an appraisal of the value of the mining properties throughout the State. Mr. Finlay, assisted by Dr. C. K. Leith, professor of geology in the University of Wisconsin, and others, made an investigation of these properties extending over a period of three months, and made a report to the board of State tax commissioners with reference thereto on August 18, 1911, which report contained a valuation of the plaintiff's property. The method pursued by Mr. Finlay and his assistants in making