(dissenting). A re-examination of the authorities and of the record has confirmed me in the correctness of our former opinion. Expressed in plain English language, the decision in 98 Mich. 570, rendered by Chief Justice McGrath, means that Mr. Sullivan presented a false claim to the court, knowing it to be false, and subjected the estate to great expense for the different trials of that suit. In order to recover now, he must take a position utterly inconsistent with the claim there made. As I read the authorities, when one has deliberately and intentionally planted his suit upon one theory, and that theory a false one, and known to be false, the law does not permit him in a subsequent suit to recover upon another theory. Besides, the present record shows that his present claim is utterly inconsistent with his conduct and acts, and is devoid of any justice or equity. On the undisputed evidence, he is heavily in debt to the Ross estate unless he can make out a claim for tort arising from the alleged loss of logs and careless sawing at the mill at Sault Ste. Marie. His own scale of the logs *321was 7,511,077 feet. He wrote Mr. Ross, stating this to be the correct amount, that it was not as large as was anticipated, and asked for a reduction in price. He tried to make a sale based upon this scale. He now claims there were 9,000,000 feet. The record shows that about 7,000,000 feet were sawed and sold, thus showing that there was but a small loss in any event. It seems to me that the law puts the seal of condemnation upon such a course of conduct, and that courts should put an end to it.
I think the former opinion should be affirmed.