appeared for the first time in the issue of June 30th. There is no force in this objection. The time for which the publication should be made was a matter for the determination of the board. The board received the bids, and must be presumed to have ratified the action of the clerk, and determined that the advertisement was for a sufficient period. Updegraff v. Palmer, 107 Ind. 181; Taber v. Ferguson, 109 Ind. 227; Beniteau v. City of Detroit, 41 Mich. 116.

Section 5 of title 6 of the charter provides that when the improvement is completed, or as soon thereafter as may be convenient, the board of public works "shall prepare a detail statement of the cost of such improvement, showing the amount to be assessed upon the property benefited as provided by the resolution ordering the said improvement." Local Acts 1891, p. 402. Section 6 provides that "the same shall be certified to the common council, and, when such statement shall have been approved by the common council, the same shall be certified to the board of public works, who shall proceed without unnecessary delay to make an assessment," etc. The statement submitted contained the following details:

The common council, at its next meeting, approved the statement, and instructed the board to make the assessment.

106 MICH.-22

The charter, in section 3, tit. 13, provides that, whenever the council shall have decided upon making an improvement, the board of public works shall estimate in detail the probable cost and expense of such work and of the material to be used therein, shall make a record thereof in their office, and shall report such estimate to the council. This was done; the bids were reported to the council; and the contract for the work authorized by the common council. The council had, under section 5 of title 6 of the charter, in the resolution ordering the improvement, directed that the entire cost of the improvement, except the intersections, should be defrayed by an assessment upon the lands to be specially benefited thereby.

The facts bring the case within the rule laid down in Goodwillie v. City of Detroit, 103 Mich. 283. The cost of the intersections was payable out of the highway fund, and it may be said that the charter only requires that the statement shall be so far in detail as to show the amount to be assessed upon the property benefited.

As to the certificate of the board of public works to the assessment roll, the records of the board show the adoption of a resolution determining and certifying that it has made the assessment as set forth in the roll, and authorizing the president "to sign, and the clerk to attest and seal, the foregoing certificate." The certificate concluded as follows:

"In testimony whereof, said board has subscribed this certificate by its president, and duly authorized and caused the seal of said board to be affixed, and the clerk of said board to attest the same, at Saginaw, this 25th day of March, A. D. 1893.

"THE BOARD OF PUBLIC WORKS OF THE CITY OF SAGINAW, MICHIGAN.

"Attest: ALFRED DAVIES,

"By B. B. BUCKHOUT,

"President of said Board.

"Clerk of Said Board of Public Works."

The charter provides for the organization of the board; for the election of one of their number as president; that the city clerk shall be the clerk of the board; and that it shall keep a record of its proceedings, which shall be open to public inspection. Local Acts 1889, pp. 945, 947. But this roll does not become operative upon this certification. It is then filed with the city clerk, whose duty it is to report the same to the common council. That body thereupon gives notice by publication to all parties interested, reciting the names on said roll, that the council will, at a time stated, hear objections to and appeals from said assessment. Provision is then made for the hearing of all persons, and the council "may rectify and amend the said assessment in whole or in part, or may set the same aside and direct a new assessment," or may confirm with or without corrections. And then follows this provision: "Every assessment roll so. ratified and confirmed shall be final and conclusive, and, within five days after the confirmation thereof, the controller shall deliver the same to the treasurer." Upon delivery of such roll to the treasurer, the tax becomes a lien upon the property. Local Acts 1889, p. 922; Local Acts 1891, pp. 402, 403. The fact of confirmation by the council is indorsed upon the roll, and attested by the clerk.

We think the certification was sufficiently attested; but, in any event, the case is not one calling for the intervention of a court of equity. The assessment is in all other respects a valid one. Complainants had an opportunity to be heard thereon before the council. They did not avail themselves of that opportunity. Section 28, tit. 6, of the charter provides that the council, in case an assessment shall be deemed invalid, may vacate the same, and when so vacated, or when it has been held invalid by a court, the council may cause a new assessment to be made. Local Acts 1889, p. 927; Sinclair v. Learned, 51 Mich. 335.

The decree below is reversed, and the bill dismissed, with costs to defendants.

The other Justices concurred.

MORET v. MASON.

1. TROVER-TIMBER CUT FROM UNOCCUPIED LANDS.

The owner of land can maintain trover for timber cut therefrom by one claiming under a void tax deed, where the possession of the latter was fugitive merely, and for the sole purpose of cutting the timber. Cook v. Cook, ante, 164, followed. 2. SAME EVIDENCE OF CONVERSION-JOINT WRONGDOERS. In trover for timber cut from plaintiff's land, it appeared that, at the suggestion of H., defendant procured a quitclaim deed of the premises from the holder of a void tax title, and that thereupon, pursuant to agreement between them, H. cut and hauled the timber, defendant receiving a certain sum per M. as stumpage. Held, that it was for the jury to say whether defendant was a joint wrongdoer.

3. TROVER FOR TIMBER-MEASURE OF DAMAGES.

In an action of trover for timber cut from plaintiff's lands by the defendant under a void tax title, a recovery may be had for the value of the logs at the place to which they were removed by the defendant for manufacture. The rule thus laid down in Grant v. Smith, 26 Mich. 201, was not disturbed by the holding in Winchester v. Craig, 33 Mich. 205, in which case the timber had been cut by mistake.

4. SAME-INSTRUCTIONS-HARMLESS ERROR.

Where, in such a case, punitory damages are not allowable under the charge of the court, an instruction characterizing the alleged trespass as "willful and negligent" is not prejudicial.

Error to Charlevoix; Corbett, J. 1895. Decided September 26, 1895.

Submitted May 9,

Trover by Josephine Moret against Albert E. Mason for the conversion of certain logs and hemlock bark cut from lands alleged to belong to plaintiff. Defendant claimed under a tax deed. Among other things, the court instructed the jury as follows:

"You are instructed that, in actions of trover for timber taken from lands by a trespasser, the measure of damages depends upon whether the trespass is willful and negligent, or the contrary. Our highest court has held that a void tax title does not tend to show that a person acting under it does so in good faith, but that the trespass must have been willful and negligent. You have already been instructed that the tax deed under which defendant claims to have acted is void upon its face. The plaintiff had the right to treat the time and place of manufacture of these logs into lumber, and the time and place of selling the bark, as the period of conversion, and would be entitled to recover as damages the value of said products at such time and place."

There was a judgment for plaintiff, and defendant brings error. Affirmed.

R. W. Kane, for appellant.

B. T. Halstead and C. F. Hull, for appellee.

MCGRATH, C. J. This is trover for timber cut from unoccupied lands. Defense, a tax title in defendant, and a tax title held by a third party. The court held both tax deeds void, and plaintiff had judgment.

It is urged that the action does not lie against one in possession. Clearly, under the evidence, the possession was but a fugitive possession, and for the purpose only of cutting the timber. The question is ruled by Cook v. Cook, 106 Mich. 164. The constructive possession was in plaintiff. The court having declared the tax deeds void, there were no conflicting titles for the jury to try. Busch v. Nester, 70 Mich. 525.

Defendant's testimony tended to show that he entered into an agreement with one Hull, whereby the latter was to cut and haul the timber to mill, and defendant was to