injury complained of resulted from the negligence of the defendants' employees in not locking the back door, or properly guarding the trap-door. For this the defendants were liable, and they could not be relieved from such liability by showing that they had given their employees different instructions.

We

Various errors are assigned by defendants upon the refusal of the court to give certain of their requests to the jury. have examined them carefully, and are of the opinion that all of the requests that ought to have been were in fact given, in substance, in the charge of the court.

The judgment is affirmed, with costs.

NEGLIGENCE-DUTY OF AN OWNER TO KEEP HIS PREMISES IN REASONABLY SAFE CONDITION. While a land-owner is not under obligation to strangers to put guards around excavations made by him upon his own premises, and owes no duty to trespassers to keep his premises safe, still he must use due care to prevent injuries to such persons as come upon his premises at his invitation, express or implied: Note to Bedell v. Berkey, 13 Am. St. Rep. 374, 375.

NEGLIGENCE, PRESUMPTION OF, FROM ACCIDENT. As to whether or not ■ prima facie case of negligence is established against a defendant by the mere proof of the happening of an accident, see note to Philadelphia etc. R. R. Co. v. Anderson, 20 Am. St. Rep. 490–495.

MASTER AND SERVANT. A servant has the right to presume that his master has performed his duty with respect to furnishing safe machinery with which to work and safe premises in which to work: Richmond etc. R. R. Co. v. Williams, 86 Va. 165; 19 Am. St. Rep. 876, and note.

CONTRIBUTORY NEGLIGENCE-QUESTION OF FACT. The question of contributory negligence is one of fact for the jury, unless from the undisputed evidence only one conclusion can be drawn, in which event the question becomes purely one of law: Mathews v. Cedar Rapids, 80 Iowa, 459; 20 Am St. Rep. 436, and particularly note; Nadau v. White River L. Co., 76 Wis. 120; 20 Am. St. Rep. 29, and note.

BATES V. KELLEY.

JUDGMENTS-RES JUDICATA

[82 MICHIGAN, 91.]

WRIT OF PROHIBITION. When, in an action between mother and son, to which the administrator of the latter is made a party, a deed purporting to have been executed by the mother is adjudged to have been a forgery, such administrator cannot afterwards maintain an action against her attorney to recover damages for his alleged mutilation of the deed. The subject-matter of the latter action is res judicata, and a writ of prohibition will lie to stay all proceedings therein.

George W. Bates, in pro. per., and Levi T. Griffin, for the petitioner.

James D. Turnbull, for the respondent.

GRANT, J. One Cynthia W. Crawford filed a bill of complaint in the Presque Isle circuit court, in chancery, to set aside a deed purporting to have been executed by her to her son. The sole question was, whether the deed was forged. That suit was brought to a final determination in this court, and decided in favor of the complainant, the court holding that the deed was forged. James D. Turnbull, administrator of the estate of complainant's son, was a defendant in that suit: Crawford v. Hoeft, 58 Mich. 1-25. Some time after the determination of that suit, Turnbull, as administrator, commenced a suit at law in the circuit court for the county of Alpena, against relator, charging him with the mutilation of the deed, and seeking to recover damages therefor. The declaration sets forth the proceedings in this court in the case above referred to, and alleges that this court was wholly mistaken in the opinion and decree therein rendered, and was imposed upon by the acts of the relator.

If this were true, the only course open to the defendants in that suit is by application to this court for a rehearing. They did make such application, and it was denied. They now seek to reopen the issue there adjudicated and settled, in a suit at law and in another court. The bare statement of the case is sufficient to condemn the proceeding. The respondent had no right or jurisdiction to try the case. He should have granted the motion for the perpetual stay of proceedings: Barnum Wire and Iron Works v. Judge, 59 Mich. 272; Maclean v. Judge, 52 Mich. 257; Hudson v. Judge, 42 Mich. 248. The writ of prohibition will therefore be granted.

JUDGMENTS-RES JUDICATA. - As to what constitutes res judicata, soo Haines v. Flinn, 26 Neb. 380; 18 Am. St. Rep. 785, and note; note to Gould v. Sternburg, 15 Am. St. Rep. 142; note to Hawk v. Evans, 14 Am. St. Rep. 250, 251; Hooker v. Village of Brandon, 75 Wis. 8; Humason v. Lobe, 76 Tex. 512; Wernse v. McPike, 100 Mo. 476; Bassett v. Connecticut etc. R. R. Co., 150 Mass. 178; Bradley v. Brigham, 149 Mass. 141; Foster v. Hinson, 76 Iowa, 714.

As to what does not constitute res judicata, see Sloan v. Price, 84 Ga. 171; 20 Am. St. Rep. 354, and note; note to Hawk v. Evans, 14 Am. St. Rep.

252.

WALLACE v. GLASER.

[82 MICHIGAN, 190.]

INTEREST, RULE FOR COMPUTING.—In case of partial payments, interest should be computed by applying the payment in discharge of the ma tured interest, and the surplus, if any, upon the principal, after which interest should be computed on the principal remaining due. If the payment is less than the interest, the surplus thereof must not be added to the principal, but interest must be computed on the former principal until the aggregate payments exceed the interest due, when the surplus must be applied toward discharging the principal, after which interest must be computed on the new principal.

INTEREST, COMPUTATION OF. —Under a statute allowing interest to be computed upon interest after it matures, such computation can continue only until the debt matures, after which simple interest is to be cast upon the principal until the time of liquidation.

E. D. Lewis, for the appellants.

B. D. York and G. R. Lyon, for the respondent.

CHAMPLIN, C. J. Complainant filed her bill of complaint in the circuit court for the county of Ingham, in chancery, to foreclose a mortgage given by defendant Peter Glaser to Lucy Gurney, and by Gurney assigned to complainant. The mort gage was in the usual form, accompanied by a note, and was given to secure the payment of the balance of the purchase price of the mortgaged premises. Joanna Glaser is the wife of the mortgagor, and Peter Linn is a subsequent mortgagee.

The only question in the case is, how the interest should be computed upon the mortgage debt, the amount of the principal being undisputed. The difference in the amount claimed to be due arose solely from a disagreement as to the method of computing the interest. The commissioner to whom the case was referred computed the interest under what is known as the Connecticut rule; that is, he reckoned interest upon the principal up to the liquidation of the indebtedness, and then computed the interest on payments up to the same time, deducting the latter amount from the principal and interest. The rule, as claimed by the complainant and adopted by the circuit court, was the one which is sometimes called the Massachusetts or the United States rule, and was laid down by Chancellor Kent, as follows: "When partial payments have been made, apply the payment, in the first place, to the discharging of the interest then due. If the payment exceeds the interest, the surplus goes towards discharging the principal, and the subsequent interest is to be computed on

the balance of the principal remaining due. If the payment be less than the interest, the surplus of interest must not be taken to augment the principal, but the interest continues on the former principal until the period when the payments, taken together, exceed the interest due, and then the surplus is to be applied towards discharging the principal, and interest is to be computed on the balance as aforesaid."

This rule was adopted by this court in Payne v. Avery, 21 Mich. 524, and is the rule recognized in most of the states. We think that the circuit court was right in its manner of computing interest, and that it reached the right conclusion.

Under the statute (Howell's Statutes, sec. 1599) allowing interest to be computed upon interest after it matures, such computation can continue only until the debt matures, and from that time simple interest is to be cast upon the principal until the time of liquidation.

It follows that the decree of the circuit court must be affirmed, with costs.

INTEREST, RULE FOR COMPUTATION OF. As to the rule for the computation of interest in the case of partial payments, see Hart v. Dorman, 2 Fla. 445; 50 Am. Dec. 285, and note 287-290; Baker v. Baker, 28 N. J. L. 13; 75 Am. Dec. 243, and note; Connecticut v. Jackson, 1 Johns. Ch. 13; 7 Am. Dec. 471.

INTEREST. — As to whether interest, after maturity, is controlled by the terms of the contract or by statute, see note to O'Brien v. Young, 47 Am. Rep. 70-75; Briggs v. Winsmith, 10&. C. 133; 30 Am. Rep. 46, and note 47-50.

HALLGREN v. CAMPBELL.

[82 MICHIGAN, 255.]

OFFICE AND OFFICER-TRIAL OF TITLE TO OFFICE. Title to office cannot be tried in an action of replevin for property belonging to the office. OFFICE AND OFFICER - REMOVAL. Where an officer is appointed for a fixed term, and the power of removal is not expressly declared by law to be discretionary, he cannot be removed except for cause; and when cause must be assigned for his removal, he is entitled to notice and a chance to defend.

OFFICE AND OFFICER - REMOVAL - PRESUMPTION. A statutory provis. ion that elective officers shall not be removed except for cause does not raise a presumption of intention that appointed officers may be removed without cause.

OFFICE AND OFFICER - REMOVAL - PRESUMPTION. The legislature may, by express words, confer upon the common council of a city the power to remove an officer without cause; but in the absence of such power given in express words, the presumption is, that the legislature intended

that every officer appointed for a fixed term should be entitled to hold his office until the expiration of such term, unless removed therefrom for cause after a fair trial.

OFFICE AND OFFICER REMOVAL OFFICER DE FACTO. — One who has law. fully been in office, and has been recognized as the officer de facto, and not lawfully removed, indicates his claim to hold the office by his refusal to deliver up the property, books, and papers belonging thereto; and if he has never yielded, but has continued to act, then a subsequent appointee to the office, who has never had possession, cannot be regarded as an officer de facto.

Phillips and Thompson, for the appellant.

B. J. Brown, for the respondent.

CAHILL, J. The plaintiff brought an action of replevin in his individual name against the defendant to recover possession of the following personal property, to wit: "Two iron road-scrapers, one wooden road-scraper, one wooden beamplow, one wooden tool-box and its contents, consisting of a quantity of shovels and picks, also all notice-books, containing blank notices used by the street commissioner of Menominee City," which he claims belongs to the office of street commissioner of the city of Menominee.

The defendant defends upon the ground that he is himself street commissioner of the city of Menominee, and is therefore entitled to the possession of the property. The defendant claims that on May 6, 1889, he was duly appointed to the office of street commissioner for one year; that he qualified and entered upon the discharge of his duties as such officer, and so continued down to the commencement of this suit. The plaintiff claims, -1. That the defendant was never legally appointed to the office; 2. That if he was appointed, he was removed by the common council on the fifth day of August,

1889.

The point made against the legality of the defendant's appointment to the office is, that the charter of the city of Menominee provides that "the council shall prescribe the rules of its own proceedings, and keep a record or journal thereof. All votes shall be taken by yeas and nays, and be so entered upon the journal as to show the names of those voting in the affirmative, and those in the negative; and within one week after any meeting of the council, all the proceedings and votes taken thereat shall be published in one of the newspapers of the city": See. 8, c. 8.

The record of the defendant's appointment is as follows: "Alderman Spies nominated William Campbell street com