justified in setting aside the verdict on an assumption that the judge misstated the evidence to the jury, when it does not appear that his attention was called to his error at the time. This is peculiarly an error that should be promptly mentioned, so that it may be corrected before it has done mischief, and if this is not done the record should put the misrecital beyond question before we should be asked to reverse a judgment upon it. In our opinion, we should not be justified in doing so upon the record.

We have not noticed, specifically, the requests for instruction on the part of the defence, which were refused, because we think what has already been said covers the case. The evidence was submitted to the jury fairly, and we think their verdict for the plaintiff, for the full amount of the orders, less certain payments made upon them, must be sustained. The judgment will therefore be affirmed, with costs. (The other justices concurred.)

MARIA REED vs. FRANK G. BAKER.

Filed November 29, 1879.

No person not regularly before the court can be bound by a decree entered therein, nor can any party before the court have a decree rendered against him settling rights which can only be lawfully settled by reaching one who is not a party. Defective character of chapter 203, Comp. L., in regard to proceedings at law in the nature of creditor's bill, considered. -[ED.

Appeal from superior court of Detroit.

Alex. D. Fowler, for complainant.

Wm. Jennison, for defendant.

CAMPBELL, C. J. Mrs. Reed, the complainant, commenced proceedings against Baker, the defendant, under chapter 203 of the Comp. Laws relating to proceedings at law in the nature of judgment creditors' bills. Baker was the only person brought in, either as party or witness, and his disclosure is the only evidence in the case. The controversy, so far as it now comes up, arises out of the transfer from him to his wife of so much as was due to him for his services in settling the estate of Alonzo Reed, deceased, in which estate his wife was interested. He testified that he assigned this claim for

an indebtedness due from him to his wife for her moneys used by him for his own purposes.

The superior court of Detroit, in which the proceeding was had, made an order declaring the assignment from Baker to his wife void, as fraudulent against creditors, and that the money should be applied on the complainant's judgment, subject to Mrs. Baker's rights. The court appointed William J. Fowler receiver, and ordered that the transfer of the money due from the estate to Baker, or any interference with it by him or his wife, be restrained. It provides further for suit against her by the receiver. From this Baker appeals. It is objected that he is not injuriously affected by the order, and therefore should not be heard. We do not think this objection is well founded. No person can be subjected properly to litigation except under such circumstances and in such a way as will settle the controversy, and leave him free from liability to a second suit of a similar charcter, and for a similar purpose; and we are of opinion that he is damnified by this order. It will not protect him from proceedings by Mrs. Baker to enforce her rights under the assignment.

No decree could be of any efficacy in such a suit which does not reach the property effectually, and determine the title directly, or furnish the means of determining it. If Mrs. Baker had been sued so as to be subjected to an ordinary creditor's bill, the validity of the assignment would be settled, one way or the other, for or against her. But in these proceedings the court cannot find against Baker without also finding against her, and it had no right to undertake such an office, where she is a necessary party. It could not have been the object of the statute to determine questions in this summary way, on any different principles from those which would have prevailed in equity. The statute apparently intended to bring in parties and pass upon their rights, and section 11 goes so far as to provide for recording decrees in the county registry, so as to bind lands. But the provisions are defective.

We do not see very clearly by what means this clumsy litigation would reach such results. But we need not consider its legal validity to bind parties before the court. We think it is beyond question that no person can be bound who is not regularly before the court, nor can any party before the court have a decree rendered against him settling any right which can only be lawfully settled by reaching an absent

party. We are satisfied that the statute is defective in regard to reaching such interests as those here in controversy. The court has no right to compel Baker to assign to a receiver and create new complications concerning property he has already assigned to a third party not represented. She has a right to manage her own property undisturbed by any order to which she is a stranger, and this disturbance cannot be made indirectly any more than directly.

This statute was found so useless and imperfect that the old law was restored in 1855. Laws 1855, p. 1270. There is every reason to suppose the legislature thought they were repealing the statute entirely, but the compilers have assumed correctly, as it would seem, that only section 16 was repealed, which had forbidden creditors' bills. The proceeding is deficient in so many respects, and so inadequate to either reach or protect third persons, who are entitled to due process of law, that it is much to be regretted that any one should be misled into resorting to it in cases where dealings are attacked for fraud or illegality.

We do not intimate that fraud is made out in this case. We think the proceedings are not of such a nature as to open that inquiry.

The decree must be reversed, with costs, and the proceedings dismissed.

(The other justices concurred.)

A mortgage was made by A. and B., covering lands owned by each of them, in severalty, to secure the individual indebtedness of A. B.'s position was that of surety only, and the mortgage contained a provision that the lands of A. should be first charged with the payment of the debt. On foreclosure the bill was taken as confessed except as against one defendant claiming a portion of A.'s lands as subsequent purchaser, and on the hearing upon his answer B.'s lands were ordered first sold. Petition for rehearing was denied, and after enrollment a bill of review was filed to have the decree as to the order of sale changed, and sale made in pursuance of the provision in the mortgage. Held, that purchasers of the mortgaged property, taking conveyance subsequent thereto, took subject to the mortgage provisions in regard to the order in which security should be resorted to, and that it was proper to correct the decree, in this particular, by bill of review. A bill of review is proper after enrollment, where rehearing is the remedy before enrollment.-[ED.

Wisner & Draper, for complainant.

E. R. Hutchins, Benton Hanchett and 4. Trask, for defendants.

CAMPBELL, C. J. This case comes up on appeal from a decree rendered upon a bill of review filed in pursuance of an order which was before us at the June term, 1878, under the title of Maxfield v. Freeman et al. The questions in controversy, so far as now material, are as follows:

On February 14, 1872, a mortgage was made by Jared Freeman and wife, and complainant and, wife, to defendant Hiram Maxfield, for $2,000, payable in five years, with interest semi-annually at the rate of 10 per cent. per annum. This mortgage covered certain lands in town 9, north of range 2 east, belonging to Freeman, and certain other lands in town 10 north, ranges 2 and 3 cast, belonging to complainant.

The debt was an individual debt of Freeman's, and complainant gave the mortgage on his lands and joined in the bond for Freeman's accommodation. The mortgage contained, at the close of the power of sale, this provision: "The said lands in township (9) shall be first charged with the payment of said sum.

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On the tenth of July, 1876, Maxfield filed his bill in the circuit court for the county of Saginaw to foreclose this mortgage, making parties as subsequent encumbrancers, Amos Gould and various others, all of whom are defendants to this bill of review. The bill referred to the mortgage in the usual way, and only set up such conditions as concerned complainant, making no express reference to the condition fixing the order of sale.

The bill was taken as confessed against all the defendants except Gould, who answered, setting up tax titles on all the lands in town. 9, and also purchases of the original title of Freeman of a portion. He also averred that the defendant, Walter B. Mickle, had purchased the other lands in town. 9, and as part of the consideration had agreed to pay the entire mortgage. He claimed that the lands in town. 10 should be sold first.

On the hearing under the original bill, the complainant's proofs were confined to the bond and mortgage. Gould introduced no testimony except the deposition of the register of deeds, swearing to the correctness of a certificate, which he appended, purporting to show the state of the title of the lands in towns 9 and 10. This certificate stated that the lands in

town 10 were still in the mortgagors. It showed title in Lorenzo Wallace of 40 acres, February 1, 1873; Amos Gould, 80 acres, May 27, 1872; and Walter B. Mickle of another part of the lands in town 9, obtained January 10, 1874; and later deeds of the other lands, part to Peter Foster in December, 1874, and to Gould in person and through mesne conveyances of the remainder, all of later dates. No copies of any of the deeds were put in, and there was no proof of tax titles.

A decree was entered on the fourteenth day of May, 1877, which required the lands in town 10 to be sold first, and which also, was to be without prejudice to Gould's rights, derived from tax sales, under which he was therein stated, without any evidence to that effect, to be in possession.

On the thirteenth of June, 1877, before the decree was enrolled, a petition for rehearing was filed, which was retained by the court until July 13, and then, for what reasons we do not comprehend, was denied. Thereupon, inasmuch as the decree had been enrolled, and the time or appealing from it was understood to have expired, a petition was filed for leave to file a bill of review. This petition was granted, and the bill was filed, claiming error in not requiring the lands in town 9 to be sold first.

After the bill was filed (the order having been held by this court to be one which could not be appealed from) Gould moved to dismiss on various grounds, including one that the decree had not been perforined, and that no security had been given, as required by rule 101. The court allowed security to be given, and refused to dismiss. The security was ordered to pay complainant any deficiency arising upon salę.

Gould then put in an answer, taking issue on the allegations concerning the origin of the debt, and averring that by certain transactions with Walter Mickle, in which he claimed Philip Mickel was the real party in interest, they had bound themselves to pay the mortgage and lost any right of preference in the order of sale. He also undertook to deny that the proceedings had been enrolled. He also set up his tax titles.

Gould was subsequently allowed to amend his answer by setting up that Philip Mickle had conveyed away his interest in the lands in town 10. Testimony was allowed to be received, showing that Philip Mickle had sold a considerable portion of these lands, and had given warranty deeds to most