win, instead of David T. Baldwin. No misnomer was pleaded, and the original judgment, which was rendered before a justice, was appealed by Baldwin to the circuit under his full name, after pleading on the merits below. Under these circumstances, if there was any informality, it was one which the record furnished means of amending and is no longer material,

An offer was made in the circuit court to show that Talbot had given a chattel mortgage on his other property, and to show fraud in that mortgage, which it is claimed was excluded by the court. It is somewhat difficult to tell just what was objected to, for the admission was distinctly made that such a mortgage had been given. But we have no doubt the court held correctly that such a mortgage was of no importance unless covering this horse. The right of exemption of this property could not depend on the condition of any other property; and it was held in Bayne v. Patterson 40 Mich. 658, that a debtor was entitled to exemption of property of the full statutory value, and that he could not be compelled to select mortgaged property, as that would defeat the beneficial purpose of the law, and give him no such amount as the law designed to secure him. It is no fraud to claim that clear amount. Neither is there anything in the statute to prevent an execution debtor from claiming property as exempt against levy in one county, because he may happen to have property somewhere else which is not levied on. Such a question might arise if on a second levy he should claim exemptions which with his first claim would be excessive. It cannot arise until then. If there was other property covered by a mortgage claimed to be fraudulent, or not covered by any encumbrance, the judgment creditor might have issued an alias execution and levied on it, if the first levy failed. to pay his debt. But in neither case could the first claim of exemption be destroyed.

A remaining point which is perhaps difficult to connect in any legitimate way with the record, is aimed

at maintaining the doctrine that where property is levied upon which is mortgaged, there can be no claim of exemption for any specific articles, as the mortgage interest is an entirety. In the present case there was no such claim of exemption, and no evidence given or offered which had any tendency to show that this horse was mortgaged. It does not concern the plaintiff in error in this suit that the execution debtor did not see fit to claim any property which was mortgaged, or that he did not claim all he might have claimed.

There is no error in the record, and the judgment must be affirmed with costs.

The other Justices concurred.

43

14 107 548

FREDERICK PFISTNER V. JAMES BIRD AND THOMAS BIRD.

Trespass for cutting timber-Passage of title.

Under a contract transferring all the pine trees the vendee "may choose to take," the latter agreeing to pay a certain sum "for the said pine, so cut," etc., title did not pass until the pine was cut, and until then the vendee had neither actual nor constructive possession, and could not bring trespass for damages against a grantee of the vendor who had cut timber on the land.

Error to Kent. Submitted Jan. 21. Decided Feb. 11.

Champlin & More for plaintiff in error. Title cannot pass until there is some specific identification of the property bargained for, Golder v. Ogden 15 Penn. St. 528; Hutchinson v. Hunter 7 id. 140; Waldo v. Belcher 11 Ired. 609; Merrill v. Hunnewell 13 Pick. 213; Scudder v. Worster 11 Cush. 573; Wilkinson v. Holiday 33 Mich. 386; Hahn v. Fredericks 30 Mich. 223; First Nat. Bank v. Crowley 24 Mich. 492; Lingham v. Eggleston 27 Mich.

324; Kingsley v. Holbrook 45 N. H. 818; Drake v. Wells 11 Allen 141; Benj. Sales § 352; it passes at once where the property is in a specified place or is of a specified kind, and when it is part of a greater quantity of the same kind so that it can be identified, Whitcomb v. Whitney 24 Mich. 486; Adams Mining Co. v. Senter 26 Mich. 73; Johnson v. Moore 28 Mich. 3; Colwell v. Keystone Iron Co. 36 Mich. 51.

L. E. Carroll and Taylor & Eddy for defendant in error. MARSTON, C. J. On September 7, 1868, William Bradley, claiming to be the owner of certain lands in this State, sold to defendants Bird by written contract "all of the pine trees they may choose to take

within

off from the following described lands * three years from the date of this agreement; And the said parties [Birds] do hereby agree to pay the said party of the first part [Bradley] the sum of one dollar per thousand feet for said pine so cut, hauled and scaled. * the measures of said logs are to be taken at the proper measure so delivered by the man or person who is appointed to scale said logs."

In 1870 Bradley conveyed to one Fisher, through whom Pfistner derives his title, the lands upon which the pine in question was standing, reserving the pine timber covered by the Bird contract.

Pfistner cut and carried away the pine in the winter of 1871-2, and the Birds bring this action of trespass to recover damages on occasion thereof. On the trial it was claimed that Bradley had extended the time within which the Birds might cut and take the pine under their contract. Under the contract between Bradley and the Birds no title to any of the pine timber passed to the latter until the same was cut by them. They did not purchase all the pine, nor all of a particular quality, but such only as "they may choose to take off," and they were to pay a certain price per thousand feet for the pine so cut.

Until cut they had no title to any of

the pine. The destruction of it by fire or otherwise while standing would not have fallen upon them, as until cut by them there was no possible way of identifying any of the timber as theirs, or of ascertaining what portion thereof they would afterwards choose to take under their contract. Until the timber was cut, therefore, they were neither in the actual or constructive possession of any part or lot thereof, and could not maintain an action in the present form against this defendant. The authorities cited by counsel for the defendant, plaintiff in error, fully sustain this view.

The judg

The other errors we need not consider. ment must be reversed with costs of both courts.

The other Justices concurred.

HENRY G. STONE ET AL. v. SARAH NICHOLS ET AL.

Pleading-Common counts.

Assumpsit on the common counts will lie for the price of articles sold, on the vendee's refusal to give an order which the plaintiff had agreed to take in payment, and which was to be drawn on a third person and be payable in labor.

Error to Kent. Submitted Jan. 21. Decided Feb. 11.

Geo. H. White for plaintiffs in error. Recovery cannot be had under the common counts for work and materials furnished under a special contract, unless the defendant has so far fulfilled its terms that his liability is solely to pay money, and in other cases recovery must be had on a special count for damages for breach of contract, Begole v. McKenzie 26 Mich. 470; Crane v.

Grassman 27 Mich. 444; Butterfield v. Seligman 17 Mich. 98; Chitty's Pl. 340; Selw. N. P. 73; where the plaintiff in assumpsit on a special contract has fulfilled his obligations, and the defendant has omitted some duty other than the payment of money, the declaration must be special, Spratt v. M'Kinney 1 Bibb 595; Cochran v. Tatum 3 T. B. Mon. 405; Bradley v. Levy 5 Wis. 400; Weart v. Hoagland 2 Zab. 517; Nesbitt v. Ware 30 Ala. 68; Brooks v. Scott 2 Munf. 344; Carson v. Allen 6 Dana 395; Snedicor v. Leachman 10 Ala. 330; Baldwin v. Lessner 8 Ga. 71; Haynes v. Woods 1 Stew. (Ala.) 12; Bernard v. Dickins 22 Ark. 351; Duncan v. Littell 2 Bibb 425; Talver v. West 1 Holt N. P. 178.

Grove & Harris for defendant in error. Indebitatus assumpsit may be maintained wherever there is a legal liability to pay money for work and labor or for goods sold and delivered, whether under an executed contract or not; and a case where an agreement performed by one party was to be performed by the other by payment in specific articles, and payment has been demanded according to the terms of the contract and refused, is no exception, Way v. Wakefield 7 Vt. 223; Clark v. Fairchild 22 Wend. 576; Smith v. Smith 2 Johns. 235; Childs v. Fischer 52 Ill., 205; Jackson County v. Hall 53 Ill. 440; this rule applies where a payment by bill, note, order or other obligation has been refused and the credit or time for which the paper was to be current, has expired, 1 Chitty Pl. 347; Hunneman v. Grafton 10 Met. 454; Hanna v. Mills 21 Wend. 90; Yale v. Coddington id. 175.

GRAVES, J. This is a very plain case. It originated in a justice's court, and the defendants in error, who were the plaintiffs, carried it by appeal to the circuit court where they recovered before a jury. The action was on the common counts for the price of manufactured articles which Stone used in a building he was putting up, and the items were explained in a bill of particulars.

43 MICH.-3.