Page:Federal Reporter, 1st Series, Volume 2.djvu/843

 836 FEDEBAIi EEPOETEE. �WiTHET, D. J. On the second of Januarj, 1875, the mem- bers composing the firm of Colby & Co. owned and mort- gaged lands to plaintiff to secure the payment of $25,000; among other lands, lot No. 2, of section 10 north, of range 7 west, situated in Montcalm county, Michigan, on which was pine timber constituting the principal value of the premises. Ten thousand dollars, with interest, were payable July 2, 1876, and $16,000, and interest, January 2, 1877. �In January, 1878, while the mortgage remained wholly nnpaid, defendant entered upon said premises, and eut and removed 650,000 feet, board measure, of pine timber, of the value of $1,300, or two dollars per 1,000 feet. It was without the knowledge of plaintiff, who alleges that thereby defendant "greatly injured and damaged said premises," etc., "whereby the plaintiff's security for the said sum of $25,000 and in- terest was greatly lessened, impaired and destroyed, to the plaintiff's damage," etc. �Defendant pleaded the general issue. �It appears that defendant and the mortgagors, after the date of the mortgage, agreed to exchange the pine upon their respective lands for convenience in hauling, defendant to pay $1,000 as the difference in value, he to have the pine in ques- tion. Defendant paid part of the $1,000 to the mortgagors, Colby & Co., and the balance was subsequently paid to their assignees in bankruptcy. �When the mortgage was given there were over 1.3,000,000 feet of pine* timber on the mortgaged land. At the time de- fendant took the timber in question from this particular lot the quantity remaining on the entire tract had been reduced to about 6,500,000 feet by Colby & Co., in their kimbering business, and with the knowledge and consent of plaintiff, but upon an understanding between them not necessary or material to be stated. �It further appeared that at the time of the agreement to exchange timber defendant was informed by Colby & Co. that they had no right to permit the timber to be eut without the consent of the mortgagee. �There was a prier mortgage upon the lands covered by ����