serting, notwithstanding he filed the bill of sale in the clerk's office. The attorney of the defendant was informed, when the instrument was placed upon record, that the plaintiff claimed he had possession of the goods; that he had the key in his pocket of the room in which they were stored; so that, so far as the defendant was concerned, the filing was not such an unequivocal act as would estop him from asserting that the instrument was not a bill of sale absolute, and not intended for security; but further than this there is no estoppel pleaded, and the testimony was not admissible without being embraced in the pleadings or the facts constituting it set out in the notice. Johnson v. Stellwagen, 67 Mich. 14, 34 N. W. Rep. 252, and cases cited. It was also claimed by the defendant that the sale was made with intent to hinder, delay, and defraud the creditors of Aaron Wessels. In the investigation of this question the defendant was permitted a wide and almost unbounded range of inquiry concerning transactions prior and subsequently to the sale to plaintiff, and concerning matters with which the plaintiff had no connection whatever. In the investigation of fraud it is usual to permit a wide range of investigation of matters that will throw light upon the questions at issue, but irrelevant testimony is no more admissible in trying questions of fraud than in any other investigation or trial or civil action at law. I think the court went far beyond what is allowable in the trial of such issues, and a great mass of testimony was admitted bearing upon the good faith and fair dealing of Aaron Wessels, plaintiff's vendor, entirely disconnected with the transaction between him and the plaintiff, which could have no other effect than to prejudice the minds of the jury, and call their attention away from the real issue which they were called upon to decide. The plaintiff's claim was that he was a creditor of Aaron Wessels; that he had loaned him money, for which he had received the promissory notes of defendant; and on the 17th of November, 1883, he settled with Aaron Wessels, and received the mortgages and goods included in the bill of sale in full discharge of such indebtedness. The defendant's claim was that plaintiff was not a creditor, or, if at all, not to the amount he claimed, and that the execution of the mortgages and the bill of sale were for the purpose of hindering, delaying, and defrauding defendant and other creditors from collecting their debts. There was testimony introduced tending strongly to prove that Aaron Wessels was engaged in an attempt to defraud his creditors. But such intent would not affect bona fide transactions between Aaron Wessels and any of his creditors who received from him money, property, or security for their debts, unless they participated with Wessels in an attempt to defraud the other creditors.

The questions here are: Was the plaintiff a creditor to the amount claimed by him? Did he settle and receive the mortgages upon real estate and the property mentioned in the bill of sale to satisfy such

indebtedness? Was there such a dispro. portion between the value of the property received and the indebtedness due to plaintiff as to raise the presumption of want of good faith, and justify the inference that the conveyances were made as mere clouds to shield the property from the reach of the other creditors? Was the property in question in this suit covered by the bill of sale delivered and followed by an actual and continued change of session. Any testimony tending to throw light upon these questions, and also upon the intent of Aaron Wessels in making the trade, was admissible. It was not admissible for defendants to show that in January following the transaction with the plaintiff in November, Aaron Wessels made a general assignment for the benefit of his creditors, and that the assignee sold the equity of redemption in the premises mortgaged at public auction, without further showing that the plaintiff was in some way connected with these subsequent transactions, or that they occurred pursuant to an arrangement between Aaron Wessels and plaintiff, made at or before the conveyances to him, and as a part of the fraudulent scheme. Plaintiff's counsel contended that there was no testimony whatever tending to show that the plaintiff was in any manner connected with a scheme for making an assignment; that the fact that he purchased some of the property covered by his mortgages at assignee's sale did not have a tendency to show that he was connected with the assignment, any more than would the fact that other parties who bought some of the property covered by these mortgages at such sale were connected with the assignment. There was testimony tending to show that Aaron Wessels contemplated making an assignment about the 1st of November, 1883, before the transaction with the plaintiff; and the testimony was relevant as tending to show the dealings of the plaintiff and Aaron Wessels with the property which he claims to have received in payment of his indebtednesss. It may have had a bearing upon the question of the good faith of the transaction, and should have been and was submitted to the jury for their consideration in connection with the rest of the testimony in the case. There was no error, therefore, in admitting that testimony for the reason, as stated, that plaintiff purchased his property at the assignee's sale covered by his mortgages. The counsel for plaintiff further contends that defendant as a creditor should have presented his claim to the assignee, and that the assignee is the only one who had authority to inquire into and contest the validity of the sale to the plaintiff as being a fraud upon the creditors. But this is a case where the plaintiff has sued the defendants for converting his goods to their own use. The burden of proof is upon him to show his title to the goods at the time of the alleged conversion, and that the defendants could not be justified in seizing the goods as Aaron Wessels' property because the title was vested in the assignee; ueither could the plaintiff maintain trover for them if such title was not in him, but was in the as

signee. It is a defense in trover to show title in a third person. Seymour v. Peters, 67 Mich. 415, 35 N. W. Rep. 62; Ribble v. Lawrence, 51 Mich. 569, 17 N. W. Rep. 60.

The circuit judge permitted a witness for the defendant to testify to what persons-some of whom inspected the tobacco with a view of becoming bidders at the sheriff's sale, and others who were such bidders or were present at such sale-said respecting the bad quality of the tobacco. It needs no argument or reasoning to demonstrate that such testimony is hearsay, and therefore inadmissible. If defendant could be permitted to swear to what persons said in derogation of the quality of the goods, plaintiff could with equal propriety introduce witnesses to show what people had said extolling the qualities of the goods.

Counsel for the defendant was permitted to offer in evidence writing which he said he had written with the same pen and the same ink for the purpose of illustrating the different shades that ink may take upon different kinds of paper, although written with the same pen and ink, and at the same time. He said that it was admitted that he wrote them, and wrote them then and there, at the clerk's desk. Counsel for the plaintiff objected for the reason that it was immaterial and incompetent. The court received the evidence. We do not see what relevancy such testimony bad or could have to the issue. So far as appears from this record, it should have been excluded.

The question whether there had been a delivery of the goods sold, followed by an actual or continued change of possession, was one of the most vital issues in the case. In his charge to the jury upon this issue the circuit judge said: "It is for you to say from the testimony whether or not it was such a changed and continued possession as I bave indicated as necessary; only I have this to say: That, if Mr. William E. Wessels did take possession of the property, and then turned it back to Aaron Wessels for him to manage, (as I think there is some testimony tending to show,) I do not think that is such a continued change of possession as the statute contemplates." The circuit judge erred in stating to the jury that there was some testimony tending to show that plaintiff took possession of the property, and then turned it back to Aaron Wessels for him to manage. We have frequently held that the tendency of the testimony to prove a certain fact is exclusively for the jury, and it is error for the circuit judge to add the weight of his opinion as to what it tends to prove when there is a dispute in the testimony upon a point. Perrott v. Shearer, 17 Mich. 48; Blackwood v. Brown, 32 Mich. 104; Hayes v. Homer, 36 Mich. 374.

We do not think the testimony relative to the removal of the cigars, the failure to box and stamp, and the selling unboxed and unstamped cigars was admissible in this case. The object of introducing such testimony was to prove title in a third person, namely, the United States; and it is claimed, and correctly so, in my opinion, that forfeiture, under the Revised

Statutes of the United States referred to, must be deemed to have attached at the moment the offense was committed, and hence the title then vested potentially in the United States, so as to cut off all sales made afterwards, as well as all liens. But the title of the United States to the goods forfeited is not consummated until after judicial condemnation, and then it relates back to the time the offense was committed. The law requires proceedings to be instituted for the purpose of ascertaining the fact of forfeiture. Caldwell v. U. S., 8 How.381,382. There was no testimony introduced, and none offered, to show that the United States had taken any steps to enforce the forfeiture, although its revenue officers were acquainted with the facts. If no proceedings are instituted within five years, the statute of limitations bars a proceeding by the government where there are no obstacles to their proceeding within that time, in which case the forfeiture may be considered as waived. We do not think that third parties can set up the illegality of a sale in violation of the revenue laws to defeat an action brought against such third person for intermeddling with the property or converting it to his own use when neither of the parties to the contract have repudiated it, and the contract has been fully executed. To permit it would be to introduce and require the determination of collateral issues without the parties to such issues being before the court, and over which this court has no jurisdiction. A great deal of the testimony introduced upon the trial had relation to these collateral issues. The cross-examination of Aaron Wessels, the opinion testimony of handwriting, the suggestions of false and fraudulent entries, were such as to influence the minds of the jury, and affect their verdict upon a question of the good faith of plaintiff's purchase, an influence which the charge of the court was not calculated to remove. After letting in this mass of testimony against plaintiff's objection, the court merely instructed the jury: "It is claimed by the defendants that this sale was void, because made in violation of the revenue laws of the United States, if made at all, and passed no title to plaintiff; and they asked me to direct you to render a verdict for the defendants, for this reason, of not guilty. This request of the defendants is refused. whole tendency of the testimony was to impress the jury with the idea that the fraud upon the revenue was in some way connected with the sale to plaintiff, and that no title passed to him by the sale. We think the error was prejudicial. The judgment must be reversed, and a new trial ordered. The other justices concurred.

The

AULTMAN & TAYLOR Co. v. GORHAM et al. (Supreme Court of Michigan. July 28, 1891.) PROMISSORY NOTE-SURETIES PAROL EVIDENCE.

1. Where one makes a note for the purpose of procuring an extension of time of payment of a debt, and, before delivery, and in consideration of such extension, another becomes a surety by signing with the maker, the extension of time is

sufficient consideration to hold the surety liable. Distinguishing Kulenkamp v. Groff, 71 Mich. 675, 40 N. W. Rep. 57.

2. The note being the contract between the parties, it was not error to exclude proof of an oral agreement by which the surety was to receive notice of non-payment of the note, or be relieved from liability thereon.

Error to circuit court, Missaukee county; FRED. H. ALDRICH, Judge.

Action on a note by the Aultman & Taylor Company against Perry J. Gorham and Freeman L. Decker. Judgment for plaintiff. Defendants bring error. Affirmed.

F. O. Gaffney, for appellants. Sawyer & Bishop, for appellee.

LONG, J. This suit was brought in the Justice court upon the following promissory note: "Lake City, February 27, 1887. Nine months after date, I promise to pay to the Aultman & Taylor Company, or bearer, seventy-two & 12-100 dollars, at bank at Lake City, value received, with interest at the rate of 7 per cent. per annumm P. J. GORHAM. F. L. DECKER." The defendant Decker, upon the trial before the justice, pleaded the general issue, and gave notice as follows: "(1) That he joined as maker of said note declared upon in the cause as accommodation merely, and never had any interest in the consideration, and never received any benefit, either directly or indirectly, on account of the note; and plaintiff knew when it was made, and when it received said note, that the defendant was only in fact surety upon it for Gorham (2) That said note was given as part payment for a certain saw-mill purchased of plaintiff by Gorham; that a short time after said note was given, to-wit, some time in the month of May, 1887, said mill was nearly all consumed by fire; and on or about June 1, 1887, the plaintiff herein verbally agreed that, in consideration of all the remainder of said saw-mill not consumed by fire being turned over to it, it would cancel said note and return it to said Gorham; that said Gorham immediately informed said Decker of the said agreement, and discharge of the note; and that said Decker had always supposed that said note had been paid until a short time before the suit had been brought. (3) That said Decker has never received any notice of the presentment and nonpayment of said note, as agreed between said plaintiff and said Decker when said note was executed. F. O. GAFFNEY, Attorney for Defendants." The cause was tried before a jury in the justice's court, who returned a verdict in favor of the defendants. An appeal was taken from the justice court to the circuit court for the County of Missaukee, where, upon a trial before the jury, the plaintiff had verdict and judgment by direction of the court. The defendants bring error.

It appeared upon the trial that the note was given in payment of a purchase by defendant Gorham of the saw-mill from the plaintiff. Defendant Decker claims to have signed the note at the request of Gorham, and the agent of the plaintiff, and that he was a mere surety upon the note. Upon the trial he sought to show: (1)

That he signed as a mere accommodation maker, and without any consideration moving to him. (2) That he executed it at plaintiff's request, and it was delivered to plaintiff upon condition that, if it was not paid at maturity, he would receive notice of the non-payment at once. (3) That the mill had been paid for and the note discharged. Upon this last proposition the only claim made upon the trial was that, the mill for which the note was given having burned, the agent of the plaintiff thereafter agreed to take from the mill certain machinery, and give up the note. No claim is made that this agreement was ever carried out, or that the agent ever took possession of the machinery, or ever surrendered the note. Defendant Decker himself testified that he wanted the agent to give up the note at that time, and to take the machinery, which he refused to do until he went and saw the attorneys of the plaintiff. From this testimony it is apparent that, if any such agreement was entered into, it was conditioned upon the approval of plaintiff's attorneys, as nothing further was done in regard to it.

Counsel for defendants claimed upon the trial, and claims here, that, though the note was in form the joint note of the two defendants as makers, yet, defendant Decker being a mere surety, he had the right to show that the condition was annexed to it by which he was to be released, unless notice was given to him of non-payment of the note at its maturity; and, no notice having been given at once after it became due, he was therefore released from all liability upon it. This proposition cannot be acceded to by this court. The note itself was the contract between the parties, and it cannot be permitted to be altered or varied by proof of an oral agreement or understanding between the parties made at or before the time of its execution. By the contract made, defendant Decker seeks to limit his liability to a mere indorser, entitled to the notice of non-payinent. He does not stand in that position towards this note, and he had no right to introduce parol proofs to show that such was the agreement, and the court was not in error in excluding it. Cook v. Brown, 62 Mich. 473, 29 N. W. Rep. 46.

Defendant, upon his first proposition that he was an accommodation maker, and no consideration moved to him, claims that he cannot be held liable upon the note, under the ruling of this court in Kulenkamp v. Groff, 71 Mich. 675, 40 N. W. Rep. 57. In that case it appeared, however, that the surety on the note did not sign until after the time the note had been executed by the maker, and delivered to the plaintiff. In the present case it appears that the agent of the plaintiff went to defendant Gorham's saw-mill, and had practically taken possession of it under a chattel mortgage, and the defendant Gorham, in order to get more time, executed the note, and Decker signed it before it was delivered to the plaintiff's agent. This was a sufficient consideration, not only to hold the maker, but the surety. No fraud or mistake is claimed in

the making of the note, and, under wellsettled rules, the court very properly directed verdict in favor of the plaintiff. The judgment must be affirmed, with costs. The other justices concurred.

ARCHER V. FT. WAYNE & E. RY. Co. (Supreme Court of Michigan. July 28, 1891.) INJURY TO PASSENGERS ON HORSE-CARS - RIDING

ON FRONT PLATFORM-NEGLIGENCE. 1. Whether it is negligence in a street-railway company not to guard its horse-cars so as to prevent passengers from getting on or off the front platforms is a question of fact for the jury, notwithstanding that the city ordinances require such cars to be so guarded.

2. Whether a passenger on a crowded horsecar is guilty of negligence in riding on the front platform is a question of fact for the jury. Following Upham v. Railway Co., (Mich.) 48 N. W. Rep. 199.

Error to circuit court, Wayne county; GEORGE GARTNER, Judge.

Action by Ross Archer against the Fort Wayne & Elmwood Railway Company for personal injuries. Judgment for defendant. Plaintiff brings error. Reversed.

Seth E. Engle, for appellant. Edwin F. Conely, for appellee.

CHAMPLIN, C. J. On the 25th day of December, 1888, between 8 and 9 o'clock in the evening, the complainant took passage upon one of the defendant's cars; but on account of the number of passengers in the car, and upon the rear platform, was compelled to stand upon the front platform of the car, from which he was thrown, and received very severe injuries, by his leg being run over and crushed by one of the car-wheels. The court took the case from the jury, and directed a verdict for the defendant. The declaration in the case alleges the duty of the defendant company, which plaintiff claims it violated, as follows: "First, to provide and furnish said plaintiff a safe and convenient seat or place to ride while being so conveyed as such passenger; second, to provide prudent, safe, and competent agents to manage said car, and provide for his safety as such passenger; third, not to drive said car at such a rate of speed as to be dangerous to said passengers and to the plaintiff as a passenger; fourth, to have a chain or guard across the passage-way down the steps at the end of the front platform extending across the passage-way, for the safety of passengers; fifth, to slacken the speed of the car and to stop when called upon to do so by the plaintiff at the time he slipped and fell from the car, while he was hanging to the guard-rail of the car." The neglect of duty alleged by the plaintiff in his declaration is as follows: "That the defendant wrongfully, negligently, and carelessly then furnished and provided imprudent and incompetent agents, to-wit: First, the driver and conductor then in charge of said car; second, defendant wrongfully and negligently failed to provide a safe and suitable seat or place for the plaintiff in and upon such car as such passenger, and negligently and carelessly allowed

the car to be so filled and crowded as to prevent the plaintiff from passing inside the car, which in the exercise of due care he endeavored to do, and thereby wrongfully compelled him to stand and ride upon the front platform of said car; third, that while he was so lawfully standing and riding, and in the exercise of due care on his part, the defendant wrongfully and negligently had no chain or guard across the passage-way down the steps at the end of the front platform on the right hand of the car so moving eastward, but wrongfully and negligently allowed said chain or guard to be hanging there, not in use, and not hooked up as a guard and protection across the steps in its usual place where it was customary to keep the same; fourth, the driver and conductor wrongfully, recklessly, and carelessly mismanaged said car, and were then and there going at a high rate of speed when the driver wrongfully and carelessly, without any notice or warning to the complainant, struck the horses a blow with his whip, causing them to jump forward, giving the car a sudden jerk, and a pitching, rocking motion, and still further increasing its speed to a high and dangerous rate, just as it was passing the crosswalk on Riopelle street, thereby then and there throwing the complainant from the platform at the right-hand thereof, causing him to slip from the step, and to swing around to his right towards the car, while trying to save himself by clinging with his right hand to the hand-rail of the car, the swift motion of the car dragging him backwards, while struggling to recover himself, and while calling, as he then did, to the driver to stop or slacken the speed of the car, and causing him to fall upon his back with his leg across the rail of the track, so that the car-wheel ran over it, and crushed the ankle-joint and bones of the leg below the knee, and cut, crushed, and bruised the flesh of his leg. The declaration having set out the duty of the defendant, and its neglect to observe such duty, then states that "by reason of the wrongful and negligent acts of the defendant aforesaid, the complainant was seriously hurt, etc.; and concludes, "whereby, and by reason of the premises aforesaid, the plaintiff has sustained damages," etc.

The testimony introduced upon the trial showed that the complainant and his fa ther took passage upon the car on the night stated, and that the car was filled inside and the rear platform also, and that they were obliged to take passage upon the front platform; and that while riding in that place, with his back against the car and holding onto the guard-rail at the right with his right hand, the driver struck the horses with his whip, which caused the car to swerve to the left; and, as he was standing on the right hand of the door of the car, his back was thrown against the end of the car, and he went to pitch forward to try to recover his footing, slipped down the step, striking his hip against it, and, hanging to the guard-rail, his back was turned towards the horses. He tried to regain his footing, and did regain it, and tried to get