we must hold that it is ruled by it. It follows, then, that the test of the insured's conduct is whether he was guilty of gross or wanton negligence.

Testing the insured's conduct by this rule, we do not think it can be said as a matter of law that the insured was guilty of gross or wanton negligence in walking upon the railroad right of way and track from the station to the village. There was no direct inhibition in the policy against walking upon the tracks or right of way of a railway. It was shown by the testimony that it was the usual traveled way from the station to the village, and that it had been so used for 24 years. If the insured simply did what the patrons of the railroad were in the habit of doing, he could not be charged, as a matter of law, with gross or wanton negligence. In walking upon the track, in leaving it when the whistle was sounded, and in moving further away from the track, as the train came nearer, the conduct of the insured was that of an ordinarily prudent man. When he stopped, turned half around, placed his hands on his breast, and with an excited or muddled look on his face fell over on the track, his conduct was that of an abnormal man, and whether this abnormal conduct was intentional or otherwise is a question about which reasonable minds might differ. The insured's conduct in its entirety, considered in connection with the attendant circumstances, presented a question from which different inferences might fairly be drawn, and it was therefore a proper question for the jury. Continental Casualty Co. v. Johnson, 119 Ill. App. 93; North American Accident Co. v. Gulick, 25 Ohio Cir. Ct. R. 395; Alloway v. Insurance Co., 35 Pa. Super. Ct. 371; Preferred Accident Ins. Co. v. Muir, 126 Fed. 926, 61 C. C. A. 456.

The judgment of the trial court is affirmed.

STEERE, C. J., and MCALVAY, STONE, and OSTRANDER, JJ., concurred.

YALE STATE BANK v. FLETCHER.

1. ATTACHMENT-AFFIDAVIT-STATUTES-BILL IN AID OF EXECU

TION.

Unless the affidavit in attachment proceedings is attached to the writ the judgment is invalid. 3 Comp. Laws, § 10556, 5 How. Stat. (2d Ed.) § 13357.

2. SAME.

Evidence considered and found to establish the fact that the affidavit was annexed to the writ before service.

3. SAME-DEFAULT Judgment-County CLERK-POWER OF DEPUTY -ASSESSMENT OF DAMAGES.

The deputy county clerk may act in the place of the clerk to whom a case has been referred for assessment of damages after a default judgment: he may perform any duty that his principal could perform.

4. SAME-INVENTORY-CERTIFICATE.

The fact that the sheriff filed a certificate with the copy of the writ of attachment, certifying that the annexed inventory was a true copy, etc., did not tend to prove that no inventory was made.

5. HOMESTEAD-BILL IN AID OF EXECUTION-ATTACHMENT.

On the hearing of a suit in aid of execution to subject defendant's homestead to plaintiff's claim, complainant could not prevail unless the value of the homestead was shown to exceed $1,500; and the trial court correctly dismissed the bill of complaint upon a record showing that the only evidence tending to prove the value of the homestead was the appraisal in attachment proceedings, which complainant had not offered in evidence by specific reference to the paper as suggested on the hearing by the trial court.

Appeal from Sanilac; Beach, J. Submitted November 20, 1911. (Docket No. 149.) Decided February 18,

1913.

Bill in aid of execution by the Yale State Bank against Fred C. Fletcher and others. From a decree for defendants, complainant appeals. Affirmed.

Jay B. Weymouth, for complainant.

Gates & Simonson (Wm. H. Aitkin, of counsel), for defendants.

BIRD, J. Complainant appeals from a decree dismissing its bill filed in aid of an execution against defendant Fred C. Fletcher. It appears from the record that complainant caused a writ of attachment to be levied upon a certain 40 acres of land in Sanilac county, which was owned and occupied by defendant Fletcher as his homestead. In those proceedings a judgment was obtained by complainant for the sum of $682.50, and an execution was levied on the land in question. Defendant Fletcher could not be found within the county of Sanilac, and service was had by publication. This bill was then filed to aid in the enforcement of the judgment. Substituted service was likewise had in this suit. It is charged that after the indebtedness accrued, but before the suit was commenced, the defendant Fletcher conveyed the 40 acres to defendant Lefler, and he in turn conveyed it to Fred C. Fletcher and his wife, Lavina W. Fletcher, and that these conveyances were made for the purpose of placing it beyond the reach of the creditors of Fred C. Fletcher.

Upon the hearing complainant offered the judgment in attachment, and it was objected to upon the ground that it was void. Several reasons are urged against its validity. It is first argued that the court acquired no jurisdiction because the affidavit was never annexed to the writ of attachment, in accordance with the requirement of section 10556, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13357). If this objection is well taken, it disposes of the case, as this court has held that this provision is mandatory. Holmes v. King, 158 Mich. 445 (123 N. W. 1).

The following facts are relied upon to show that the affidavit was never annexed to the writ:

(a) The affidavit was made and filed on the 27th day of April, the same day the writ was issued.

(b) The calendar entry showing that the affidavit was filed on April 27th, and afterward changed to read, “Affidavit exhibited on April 27th."

(c) That the affidavit is now attached to and filed with a copy of the writ.

(a, b) If it be conceded that the affidavit was filed on the date that the writ was issued, it is not important if it were actually annexed to the writ before it was executed. We think counsel are in error in assuming that the filing is conclusive evidence that it remained in the custody of the clerk. The statute does not require the affidavit to be filed when the writ issues, and the fact that it was inadvertently marked with the filing stamp of the clerk would not prevent its being attached to the writ and delivered to the sheriff. The testimony of the complainant's attorney and the deputy clerk who issued the writ shows that the affidavit was annexed to the writ and taken away by complainant's attorney on the day that the writ issued. The case of Holmes v. King, supra, to which our attention is called upon this proposition, is not in point for the reason that the situation there dealt with shows that the affidavit was not filed until after the writ was executed, showing conclusively that the affidavit could not have been annexed to the writ before it was executed.

(c) As further evidence that the affidavit was never attached to the writ, counsel point to the certificate of the sheriff attached to the return, which certifies that "the writ is a true copy of the writ of attachment to me directed, etc., and a true copy of the inventory made by me, etc." In making his return, the sheriff filled in this blank certificate, which is ordinarily made use of for certifying copies of the writ and inventory for service. This certificate was unnecessary, and, as there is nothing in the law which requires it to be indorsed upon the return of the sheriff, we think it should be disregarded as surplusage. The mistake misled no one and should not be permitted to affect the validity of the proceedings. The return, considered in connection with the inventory and appraisal,

fairly shows that the original writ, and not a copy, was returned. The objection, therefore, that the affidavit was not annexed to the writ, is not borne out by the record.

Further objection is made that no inventory was made and filed. The basis of this objection is the same as the preceding one, namely, that the certificate on the sheriff's return certifies that the inventory returned with the writ was a true copy, etc. The objection is purely technical and without merit.

When the default of the defendant was filed, an order was entered under rule 12, referring the matter to Fred J. Kemp, county clerk, for assessment. The assessment was actually made by the deputy county clerk, John D. Allin, and a report was made and filed by him. It is argued that, after the matter had been referred to Fred J. Kemp for assessment, it could not be made by Allin. The office of deputy county clerk is one created by statute (1 Comp. Laws, § 2572 [1 How. Stat. (2d Ed.) § 1217]), and, unless his powers are limited by the statute, he may perform any act which his principal may perform (29 Cyc. p. 1395). The matter was referred for assessment to the official and not to the individual, and, if it were a proper matter to refer to the clerk for assessment, the deputy had the authority to act for his principal. Dorr v. Clark, 7 Mich. 310; Andres v. Ottawa Circuit Judge, 77 Mich. 85 (43 N. W. 857, 6 L. R. A. 238).

The defendants raise some questions with reference to the pleading and evidence of the complainant in the chancery case, which seem to us more serious. The point is made that the bill of complaint nowhere charges what the value of the property was at the time the conveyance was made, and that there is no competent proof in the record that the 40 acres was worth more than the exemption of $1,500. The complainant argues that the appraisal shows that it was worth $2,400. The defendants contend that the appraisal is not a part of the evidence, and that if it were it would be no evidence of the value