tors that if the commissioner approved they might take the job off his hands. The commissioner consented and contracted with relators, who gave satisfactory bond and did the work under the eye of different members of the township board, who frequently visited the place where it was going on and made no objections. When the bridge was finished, the commissioner accepted it and drew an order on the township treasurer in payment, but the clerk, although he reported the amount of the contract price to the supervisor as money to be raised by tax, and the board of supervisors authorized the amount to be spread on the tax-roll, refused to countersign the commissioner's order on the ground that the contract was void in not being executed by a regular bidder. Relators seek to compel the clerk by mandamus to countersign the order. C. M. Beardsley and II. A. Chaney for relators relied on How. Stat. § 1379, 1380, 1414, 1415. THE COURT refused the order asked for. The highway commissioner has no authority to let jobs for which the statutes require scaled proposals, to persons who did not make such proposals, and at a time subsequent to the opening of the bids. Hannah v. Fife 27 Mich. 172; Mackenzie v. Baraga Township 39 Mich. 554. JOIN JEFFERY ET AL. V. ELIZABETH HURSH ET AL. [See 42 Mich. 563; 45 Mich. 59; 49 Mich. 31.] Deel and defeasance as mortgage-Power of attorney to sell-Bond to reconvey-Taxing costs. 1. The character of a deed as security is not destroyed by the fact that no defeasance was given until after the delivery of the deed, provided the transactions were substantially contemporaneous and were manifestly meant to amount to a mortgage. 2. The recital in a bond of defeasance that the obligor will reconvey such interest as he has now acquired, establishes the contemporaneous character of the deed and defeasance and cannot be contradicted by parol. 3. A bond of defeasance, being under scal, is an instrument of as high order as the deed which it accompanies. 4. A bond to reconvey is valid as a defeasance even though it covers lands belonging to a third person and included with the grantor's land by virtue of a power of attorney to him to sell them. It would be good at law as to the grantor's land, and in equity as to the third person's, the last not being mortgageable under a power of sale. 5. A power of attorney to sell will not support a mortgage; and if the deed is really intended as security they are conveyed without authority and the grantee cannot maintain ejectment for them. 6. A deed absolute taken in connection with a bond or separate defeasance or agreement, executed at the same time, to reconvey on pay. ment of a stated sum, constitutes a mortgage if the instruments are of the same date or are executed and delivered at the same time and as one transaction. When this is the case it is a conclusion of law that they constitute a legal mortgage. 7. Costs are not of right at common law, but only by statute. And the statute does not cover proceedings that were complete in themselves before its adoption. 8. Costs that by order of court or under some statute have been paid during the progress of the case, cannot be recovered back nor taxed on the final disposition of the case. 9. The party who on appeal recovers final judgment in ejectment is entitled not only to his costs of the appeal but to such costs as are taxable of all previous trials, whether decided for or against him. 10. Where an appellate court orders a new trial in ejectment the costs are in its discretion; but all that are not disposed of by its special order will abide the final result and will be taxable then. 11. An order for reversal and new trial with costs of both courts means the costs of that hearing in the appellate court and of the particular trial below wherein the judgment was reversed. It can not, against objection, cover all previous trials below if there have been several. 12. An affidavit for the taxation of witness fecs as costs must state the residences of the witnesses as well as their names, the number of miles they have traveled and the number of days they have necessarily been in attendance. 13. In taxing witness fees it is not to be assumed, without some showing, that unsworn witnesses were not properly summoned, if the affida vit to the bill of costs states that they were deemed necessary and were called in good faith. 14. Witness fees and sheriff's fees for subpoenaing witnesses cannot be taxed as costs unless the affidavit for taxation shows that the sums claimed have been disbursed by the party claiming taxation or that the service has been performed for him. 15. Continuance fees are not taxable as costs without some showing that the case was continued on motion of the losing party or that it was not reached during the term. 16. Defects in a bill of costs must be supplied, if at all, while the matter is before the taxing officer; no amendment can ordinarily be allowed on appeal from his action. The proper course would be to withdraw the bill and make a new application, or to ask for a postponement and supply the defects by the adjourned day. Error to Bay. (Green, J.) Oct. 7-8.-Oct. 28. Reversed. Defendants bring error. Brown & Leaton, Fancher & Dodds Bros., A. McDonell, and John Atkinson for appellants. A conveyance absolute on its face with an instrument of even date to reconvey on repayment of the consideration with interest is prima facie a mortgage: Jones on Mortgages, § 214; Taylor v. Weld 5 Mass. 109; Bailey v. Bayley 5 Gray 505; Murphy v. Calley 1 Allen 107; Lane v. Shears 1 Wend. 433; Enos v. Suther land 11 Mich. 539; Roach v. Cosine 9 Wend. 227. Spaulding & Cranson and IIatch & Cooley for appellees. CHAMPLIN, J. Plaintiffs, as heirs-at-law of John Jeffery, deceased, brought ejectment to recover possession of the west half of the northeast quarter of section 22, township 14 north, range 4 east, in Isabella county. They claim title. in fee. On the 10th day of March, 1856, John M. Hursh, now deceased, acquired the title in fec-simple to the land in question by patent from the United States, and some time afterwards gave a mortgage thercon to one Ganson, and another to John Jeffery. At this time the defendant Elizabeth Hursh, was the wife of John Hursh, the mortgagor, and joined with him in the execution of the mortgages. Afterwards, and on the 29th day of March, 1871, John M. Hursh by warranty deed, conveyed the land to Wesley Win ters, and he on the same day conveyed by deed the land to the defendant Elizabeth Hursh. April 9th 1872, Elizabeth Hursh executed a power of attorney to her husband, John M. Hursh, by which she empowered him "to sell and convey all lands that I am possessed of in the counties of Clare and Isabella, to receive payments for the same at any price or prices that to my said attorney may seem meet and just, and to execute and deliver such deed or deeds of conveyance in my name as may be necessary to convey the title to such land. in fee." On the 23d day of November, 1872, John M. Hursh executed a warranty deed of the land in question together with about five hundred and sixty acres of lands belonging to himself, to John Jeffery, the plaintiff's ancestor. In this deed he purported to act for himself personally and as the attorney in fact of Elizabeth Hursh. It contains a covenant that the premises are free from all incumbrances, and also of warranty against all lawful claims. The defendants claim that this instrument was not intended as an absolute deed, but that it was either a mortgage or a conditional sale; and in either case is void as to the land of Elizabeth Hursh, for the reason that the power of attorney from her to John M. Hursh did not authorize him to make. either a mortgage or conditional sale of her land. The evidence adduced in support of defendant's claim consisted (1st) of a bond bearing the same date as the deed, executed by Jeffery to John M. Hursh, conditioned that he, Jeffery, on the receipt of $3514.46, being the same amount as the consideration named in the deed, with interest thereon at the rate of ten per cent. from that date, to be paid on or before one year to him by said Hursh, would make, execute and deliver to the said John M. Hursh, his heirs or assigns, or to whomsoever might be named by said Hursh, "a good and sufficient deed of conveyance of such interest as I now have acquired of said Hursh, of the following described lands situated in Isabella county and State of Michigan." [Here follows a description of the land in question, and a large number of other descriptions, containing over five hundred acres in all, and being the same lands described in the deed and no others.] (2d.) Of the testimony of witnesses as to what occurred at the time the papers were executed, and the admission of Jeffery; and (3d) of the fact that Mrs. Hursh had always remained in the possession of the land in question, claiming it as her own and paying the taxes thereon, and that Jeffery never interfered with the possession of defendant Hursh, and never sought in any way to acquire possession thereof. John M. Hursh and John Jeffery had both died before th's suit was commenced. The only living witness who has test:fied to what occurred at the time the papers were excented is William E. Winton. IIe was the attorney of John Jeffery in his life-time, and after his decease he was the attorney of Mrs. Jeffery, who was appointed administratrix of the estate of John Jeffery, and who was also guardian of the plaintiffs in this suit. He had assisted in one of the trials of this case at the circuit and addressed the jury on behalf of the plaintiffs. He was judge of probate of Gratiot county, in which the estate of John Jeffery was administered, and was exercising that office at the time the papers in controversy were drawn. John Jeffery died about a year and a half after the deed and bond were executed. After Mrs. Jeffery was appointed administratrix, Mr. Winton, acting as the judge of probate and her legal adviser, at a time when the occurrence was comparatively recent, advised Mrs. Jeffery that the deed. in question was not in fact an absolute deed, but a mortgage, and under his advice she treated it as a mortgage, and sold and assigned it as such to one Scriven who brought a suit to foreclose it as a mortgage. She also treated it as a mortgage security in her account of the estate before the probate court of which Winton was judge. After an interval of twelve years from the execution of the deed and mortgage in his presence, he testifies as to what occurred on that occasion as follows: "On the 23d day of November, 1872, Mr. Jeffery, in company with John M. Hursh, came into the probate office, where I was alone. After the introduction of Mr. Hursh, Mr. Jeffery said that Mr. Hursh had come to sell his wife's farm, with a power of attorney, and wanted me to examine the power of attorney and see if it was sufficient to |