Alpena weekly argus. [volume] (Alpena, Mich.) 1871-1893, 1883-02-21
Decision of Judge Limerick in the Case
OF the State and j. ID. Turnbull.

Decision of Judge Limerick in the Case
OF the State and j. ID. Turnbull.
AS preliminary to consideration
of the questions arising upon the hear
ing in this case between the respec-
tive defendants upon being required
to interplead as to their rights to the
fund paid into court by the complain
ant, brief review Of the transactions
from which this litigation arose, as
admitted by the pleadings or estab-
lished by the proofs taken herein,
seems necessary to complete under
standing of the controversy.
In the winter of 1877 and 1873 one
James McElroy had cut and put in
from certain descriptions Of land sit
uate in town 80 n, range east, a
large quantity of pine logs which in
the spring of 1878 had been run and
delivered to the complainant Minor,
in pursuance of a contract of pur-
chase Of the same between McElroy
and Minor, and in the month of May
of that year, Minor was owing Nc
Elroy upon said contract of purchase,
and for said logs, considerable sum
of money.
That at this time one Memo Swart
appeared at Alpena, where the logs
then were, and, claiming to represent
the State as an examining agent in
cases of alleged trespass committed
upon State lands, asserted that the
logs in question, or a considerable
portion Of them, had been cut upon
lands belonging to the State, and de-
mandcd a settlement of the same.
That in order to retain the logs
and effect q settlement for such al
legged trespass, complainant Minor,
with the knowledge and consent of
McElroy, paid to Swart the sum of
$2,223.15 as follows: S123.15 in cash,
and the balance in two promissory
notes for $1,000 each, executed by
Minor, and payable at American Ma
tional Bank in Detroit, to the order
of B. F. Partridge, at that time Com
missioner of the Land Office.
That said notes were given by Min
or with the understanding and agree
ment with McElroy that they should
apply to the amount of their face
value as payment upon the amount
then owing by Minor to McElroy, up
on the purchase of said logs and
others from McElroy, and afterwards
and upon final settlement between
Minor and McElroy, credit of the
same amount, viz: $2,100, was al
lowed to Minor for and on account of
said notes then outstanding and I'M
paid.
That soon after such settlement,
McElroy claimed that in making and
consenting thereto, he had relied upon
the representations of said Swart
that he (Swart) had made examina-
ton of the lands so cut over by Nc
Elroy, and upon Swart's representa-
tions as to the amount of timber cut
therefrom, and as to the title of the
State to the lands cut upon but that
subsequent to the making of said set
Element, he (McElroy) had learned
that, to considerable portion of said
lands, the State had no right, the
same having been duly reserved under
a swamp land road contract and trans
ferred to McElroy, and that as to the
balance of said lands, that the amount
OF timber cut therefrom had been
grossly overstated by Swart, and had
been settled for at price per thou
sand much greater than the quality
of the timber would justify that he
had been induced to make such set
Element by mistake as to the above
particulars, and by being forced into
such settlement by said Swart, with
out having adequate time and oppor-
tunity to investigate the same by rea-
son of the threats of Swart to pro-
coed against him under the somewhat
oppressive provisions of the statues of
this State regarding trespasses upon
the public lands.
In the month of September, 1873,
he filed his bill in this court. setting
up substantially the foregoing facts
as constituting his ground for relief