illicit intercourse occurred, she had, under a declaration alleging seduction, recovered damages for a rape. Inasmuch as she had a right to recover such damages on commonlaw principles, the only possible valid objection that could have been made was one of variance, viz., that she had been permitted to recover on a cause of action different from that stated in her declaration. No such objection was made, and that point was not considered by the Supreme Court. The objection was that plaintiff could not recover, not because of variance, but because there was no proof of seduction. It was a complete answer to that contention to say, as the court did say, that, though the testimony established a case of rape, it would not defeat recovery. In that case plaintiff recovers, not because she proved seduction-the cause of action averred in her declaration-but because she proved another and a very different cause of action, viz., rape, and the court was quite correct, under a record which disclosed no objection upon the ground of variance, in saying that this was no defense. In other words, Marshall v. Taylor does not decide that rape is seduction, nor that rape can be proved under a declaration averring seduction. It merely holds that on that recorda record disclosing no objection on the ground of variance-it was of no avail for defendant to say that the testimony proved rape, instead of seduction. Had such an objection been made, a different question would have been presented, and we are not informed how that question would have been determined. I am therefore of the opinion that Marshall v. Taylor is not an authority for the proposition that the plaintiff in this case had a right to bring suit for rape under section 10,418 of the Compiled Laws of 1897, and, as already stated, I think she had no such right.

It does not follow, however, that plaintiff should be defeated in this action. Upon common-law principles she had a right to maintain an action and recover damages for the assault committed upon her. The declaration in this case states every essential element to entitle her to recover under common-law principles. It is true that it states something more, viz., it says that she brings this action by virtue of the provisions of section 10,418 of the Compiled Laws of 1897. If I am right in my reasoning, she could not bring it by virtue of that section. Defendant contends, and has always contended, that she could not bring it by virtue of that section. In my view of the case, and in his view of the case, this reference to the statute was a surplusage. Why should it defeat recovery? It was an averment of a proposition of law which was unsound. It did not deceive the defendant. It had no effect upon the trial. It was a mere surplusage, and should be disregarded. In 21 Ency. of Pleading & Practice, fol. 21, p. 293, it is said: "Averments of legal conclusions and inferences which do not correctly state the law applicable to the facts,

but are repugnant to it, are not material, and will neither vitiate a good pleading nor cure one that is defective." In support of this statement a number of cases are cited, one of which (Parnaby v. Lancaster Canal Co., 11 Ad. & El., 223) is very similar to the case at bar. "This (as stated in the opinion of the lower court) was an action on the case for negligence in leaving a sunken barge in the defendant's canal which the plaintiff's vessel ran against and was thereby sunk." In the declaration it was averred that the duty of defendant to remove the sunken vessel arose from a certain act of Parliament therein set forth. After verdict and judgment in favor of plaintiff, the case was reviewed by a writ of error. The proposition there raised and decided is shown by the following quotation from the opinion of Tindal, C. J.: "The principal objection in this case was that the clause recited in the declaration, and which is therein stated to have cast a duty on the company to remove the obstruction caused by the sunken boat, was not obligatory, but was an enabling or permissive clause only, and we are all of that opinion. Neither the clause recited, nor anything in the act of Parliament contained, imposes such a duty on the defendants below, and the allegation in the declaration, as to the duty of the company, seems to have been founded on a mistake as to the true meaning and effect of that clause. But admitting this to be so, the question then arises whether, upon the facts stated in the declaration, another duty of a different kind was not imposed by the common law upon this company, and whether a sufficient breach of that duty is not alleged. It is clear that the statement of the duty in the declaration is an inference of law from the facts, and need not be stated at all, or, if improperly stated, may be altogether rejected. Omitting, therefore, as it appears to us, the improper and unfounded statement of duty in the declaration, the facts stated in the inducement show that the company made the canal for their profit, and opened it to the public upon the payment of tolls to the company; and the common law, in such a case, imposes a duty upon the proprietors, not perhaps to repair the canal, or absolutely to free it from obstructions, but to take reasonable care, so long as they keep it open for the public use of all who may choose to navigate it, that they may navigate without danger to their lives or property. We concur with the Court of Queen's Bench in thinking that a duty of this nature is imposed upon the company, and that they are responsible for the breach of it upon a similar principle to that which makes a shopkeeper, who invites the public to his shop, liable for neglect on leaving a trap door open without any protection, by which his customers suffer injury"-and the judgment was affirmed. I think it may also be said that the Parnaby Case is in harmony with our own decisions. Smith v. Holmes, 54 Mich. 104, 19 N. W. 767.

See,

also, Atty. Gen. v. Mich. State Bank, 2 Doug. 359; Holdridge v. Farmer's & Mechanic's Bank, 16 Mich. 72.

It is said that, considered as a commonlaw declaration, there was an irregularity in the appointment of a next friend. It is to be observed that defendant, as well as plaintiff, has treated the mother of plaintiff as her next friend. The objection to the regularity of her appointment is one which cannot now be made. Sick v. Michigan Aid Ass'n, 49 Mich. 50, 12 N. W. 905; McDonald v. Weir, 76 Mich. 243, 42 N. W. 1114.

It is said that Ryan v. Fralick, 50 Mich. 483, 15 N. W. 561, is inconsistent with the thought that the reference to the statute may be treated as surplusage. To this I cannot agree. It is true in that case it was held that the declaration was based on the statute (section 10,418), and could not be regarded as a common-law declaration; but it could not be said there, as here, that the declaration on its face showed that the reference to the statute was erroneous. That declaration could not be treated as a common-law declaration because, unlike the one in this case, it did not contain the essential elements of a common-law declaration.

Holding, as I do, that under defendant's contention the declaration is a common-law declaration, the judgment must be affirmed.

MCALVAY, J., concurred with CARPENTER, J.

Under Const. art. 6, § 18, giving justices of the peace specified jurisdiction in civil cases, with such exceptions and restrictions as may be prescribed by law, the Legislature can withdraw any cause from the justices' jurisdiction. [Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 72.] 3. COURTS-DICTUM-EFFECT.

A dictum is entitled to no greater weight than would be given it as an expression of an opinion of the justice writing it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, § 335.]

4. EVIDENCE-JUDICIAL NOTICE

WAGES.

SEAMEN'S

The Supreme Court takes judicial notice of the fact that a seaman's accrued wages very rarely aggregate $100.

5. MARITIME LIENS-DEMANDS AGAINST WATER CRAFT-ENFORCEMENT JURISDICTION.

Under Comp. Laws, § 10,789, giving a lien on certain water craft for material furnished, etc., and under section 10,790, giving specified circuit courts jurisdiction to enforce such liens, such courts have jurisdiction of such claims regardless of the amount thereof.

Certiorari to Circuit Court, Wayne County; Alfred J. Murphy, Judge.

Certiorari to review a judgment dismissing a proceeding by the Detroit Lumber Company against the Petrel. Judgment reversed, and new trial ordered.

Argued before MONTGOMERY, OSTRANDER, HOOKER, MOORE, and MCALVAY, JJ. E. T. Berger, for appellant. Trevor & Bumps, for appellee.

MONTGOMERY, J. The proceeding was instituted under the water-craft law, socalled, to recover for certain lumber and materials supplied to the owners and used in the building, fitting out and furnishing the yacht Petrel. The amount of the complainant's claim is $60.93 and interest When the case came on for hearing before the circuit judge, a motion was made by the defendant to dismiss the proceedings for want of jurisdiction, on the ground that the amount involved being less than $100 there was no jurisdiction in the circuit court to try the case. This motion was granted, and the ruling on that motion presents the only question for our consideration.

The defendant contends that the case of Dewey v. Duyer, 39 Mich. 509, should control this case. In that case the question presented was whether the mechanic's lien law conferred jurisdiction upon a court of chancery where the amount involved was less than $100. The statute governing the courts of chancery contains the provision that the courts of chancery shall dismiss every suit concerning property except suits between copartners and suits for the foreclosure of mortgages where the matter in dispute does not exceed $100. In view of the existence of this statute, and of the absence of any express conference of jurisdiction in cases involving less than $100 in the lien statute itself, the court held that the court of chancery had not jurisdiction to enforce a mechanic's lien for less than $100, the court saying, "Implications in favor of jurisdiction cannot be much indulged." It is beyond question that the Legislature has the power to confer jurisdiction upon the circuit court in cases involving any amount. Section 18, art. 6, of the Constitution, provides that in civil cases justices of the peace shall have jurisdiction to the amount of $100 and concurrent jurisdiction to the amount of $300 (which may increase to $500), with such exceptions and restrictions as may be provided by law. Any legislation, therefore, which clearly withdraws from the jurisdiction of the justices of the peace any cause is within the constitutional power of the Legislature, and the only question presented is whether the watercraft law expresses with sufficient clearness the intention to repose in the circuit court jurisdiction of cases involving a lien against vessels without regard to the amount. Milroy v. Mining Co., 43 Mich. 237, 5 N. W. 287, it was said that the circuit courts are given jurisdiction in claims against boats and vessels irrespective of the amount claimed.

In

It is properly said in defendant's brief that this was dictum. It is therefore entitled to no greater weight than would be given it as an expression of an opinion of the justice writing the opinion.

The real question is, what was the intent of the Legislature, as expressed by the act? Undoubtedly the language of the statute (section 10,790, Comp. Laws) is broad enough to confer jurisdiction in the circuit court over the claim of any person claiming to have a lien specified in section 2 of the act. In fact it would be necessary to introduce an exception by implication in order to exclude from the jurisdiction of the circuit court claims involving less than $100. But when we take into account the purpose of the act, which was to protect labor and seamen's wages, as well as subcontractors and materialmen, and when the fact-of which we may take judicial notice is considered that accrued seamen's wages very rarely aggregate $100, the inference is strong that the purpose was to confer jurisdiction in this class of cases without regard to the amount. It is specially provided by section 10,833 that in suits for seamen's wages no security for costs shall be required except by special order of the court or judge thereof upon motion and notice and for good cause shown, thus showing that one of the first objects of the statute was the protection of seamen. We think that the terms of the act do not render it necessary to give it a construction which shall defeat the purpose of the Legislature, but on the contrary that all claims under this statute are by section 10.790 brought within the jurisdiction of the circuit court, and that there is nothing in any other provision of the act or in any other statute which should, in view of the special purpose of this act, be held to exclude by implication claims of less than $100.

The judgment is reversed, and a new trial ordered.

Where the amount due on a mortgage of logs was $4,950.40, and payments for liens, sheriff's fees, and expenses of sorting, scaling, towing, and delivering the logs to a place where they could be advantageously sold brought the whole amount up to $7,051.71, and the mortgagee sold. under the mortgage, at the first sale, logs amounting to $5,300; and at subsequent sales additional amounts, making the total $7,713.43, it was not liable as for an excessive sale, but was only responsible for the surplus after satisfying the mortgage debt and such legitimate expenses.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, §§ 540, 545.] 2. SAME-SALE IN QUANTITIES.

On foreclosure of a mortgage on logs, the mortgagee was not bound to sell them one by one until it had realized enough to satisfy the 117 N.W.-6

mortgage, but was entitled to sell them in quantities, so long as it acted reasonably and in good faith.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 540.]

3. SAME-NEGLIGENCE OF MORTGAGEE.

Where, in an action against a mortgagee of logs for negligence in caring for and selling them after taking possession under the mortgage, it appeared that a quantity of the logs seized belonged to a third person, and were not covered by the mortgage, though intermingled with the mortgaged logs, defendant was not liable to the mortgagor or his assignee for any of its acts with reference to the logs not so mortgaged.

4. SAME-DAMAGES-EVIDENCE.

Where a mortgagee of logs seized them, and other intermingled logs, belonging to the T. company, which were not mortgaged, and towed them to a lake for the purpose of sorting, defendant was not liable to the mortgagor's assignor for negligence in towing some of the intermingled logs at an improper season of the year, by reason of which some of the logs were lost, in the absence of evidence from which the jury could determine how many of the lost logs belonged to plaintiff's assignor and how many to the T. company. 5. PLEADING

AMENDMENT-DECLARATIONDIFFERENT CAUSE OF ACTION.

Where a declaration by the assignee of a mortgagor of logs against the mortgagee alleged a conversion, but, after it had been held on writ of error, that defendant's acts did not constitute a conversion, plaintiff filed an amendment, alleging negligence on the part of the mortgagee in caring for and selling the logs after taking possession thereof under the mortgage, the logs, persons, and acts referred to in the amendment being the same as those pleaded in the original declaration, the amendment was authorized.

Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 686-709.]

6. TRIAL-DIRECTION OF VERDICT.

Where, in an action by the assignee of a chattel mortgagor against the mortgagee, there was evidence to support plaintiff's claim that, after all reasonable expenses had been paid, a balance would still be due him from the proceeds of a sale of the property on foreclosure, and also that a large quantity of the mortgaged logs were lost by reason of the mortgagee's negligence, the court did not err in refusing to direct a verdict for defendant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 381-389.]

7. EVIDENCE-TESTIMONY AT FORMER TRIAL. Where a witness was beyond the jurisdiction, it was proper to permit plaintiff to read in evidence his testimony given at a former trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 2406.]

8. TRIAL-INSTRUCTIONS.

A portion of a charge objected to will be considered in connection with the entire charge. (Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 703-718.]

Grant, C. J., and Hooker, J., dissenting in part.

Error to Circuit Court, Houghton County; Albert T. Streeter, Judge.

Action by Joseph Croze against the St. Mary's Canal Mineral Land Company. Judg ment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Argued before GRANT, C. J., and BLAIR, MONTGOMERY, OSTRANDER, HOOKER, MOORE, CARPENTER, and MCALVAY, JJ. Chadbourne & Rees, for appellant. Tarsney & Fitzpatrick, for appellee.

GRANT, C. J. A sufficient statement of the facts in this case is found in the opinion of this court (143 Mich. 514, 107 N. W. 92, 313. 114 Am. St. Rep. 677), reversing the judgment and remanding it for a new trial. The original declaration, as stated in that opinion, contained two counts, one being the ordinary count in trover, the other a special count in trover, alleging that the defendant wrongfully converted the timber to its own use, by unlawfully and wrongfully removing it from the places where seized. This part of the declaration is as follows: "And the plaintiff avers that the said Will C. Baudin did not pay to the said defendant said sum of $4,480, and interest thereon at 7 per cent. per annum, as in said mortgage agreed, and that thereafter, and on, to wit, the 1st day of September, 1901, the said defendant, by its agents and servants, seized and took possession of the entire quantity of logs and timber aforesaid belonging to said Will C. Baudin, including the 1,000,000 feet thereof aforesaid, which was owned by the said Baudin, and not included in the terms and provisions of said chattel mortgage or affected thereby, and also seized and took possession of said 1,000,000 feet referred to in said chattel mortgage as having been sold to the Tamarack Mining Company. And the plaintiff avers that the said defendant did not then and there, or at any time thereafter, sell that portion thereof which was mortgaged to said defendant, at public auction, after a like notice, as is required by law for constable's sale, nor did it exercise its option to sell the same at private sale without notice, as in said mortgage agreed, but unlawfully and wrongfully removed, or caused to be removed, a greater portion thereof, to wit, 2,500,000 feet of said hemlock logs, and, to wit, 30,000 feet of said white pine logs, and, to wit, 60,000 lineal feet of flat hemlock timber from the place and places where the said logs were seized and taken by said defendant, and wrongfully and unlawfully converted the same to the use of the said defendant."

The special count also alleges a damage to the timber left upon the shore at Misery Bay, by reason of its "becoming sap rotten, sap stained, worm-eaten, and discolored," and that such injury was due to the carelessness, negligence, and wrongful conduct of the defendant in not caring for and protecting said logs. Aside from the allegation of damage to the logs left upon the bank at Misery Bay, the declaration was based entirely upon a conversion of the property by moving it from the places where seized, and neglecting to sell the same, according to the provisions of the mortgage, to satisfy the debt. Upon the second trial no claim was made for damages to

the logs left at Misery Bay. We held, in the former opinion, that there was no conversion. There was not even a hint, in the original declaration, of liability for negligence in rafting and towing the logs from Misery Bay to Portage Lake, or in their care in Portage Lake. In fact, most of the logs were already in Portage Lake, having been towed there during the season in several rafts by plaintiff's assignor, Baudin. After the former decision plaintiff asked and obtained leave to amend his declaration charging the defendant with negligence in towing the logs and in their care while in Portage Lake, alleging that the boom in Portage Lake broke on two or three occasions, by which logs were lost, and that the breaking was due to the negligence of the defendant.

Since writing the above this court has decided Jones v. Pendleton (Mich.) 115 N. W. 468. The original declaration in that case counted on a promise, made by the defendant, to pay plaintiff a commission on the sale of real estate. The plaintiff did not make the sale, but the sale was made through the intervention of another party. It was held that, although there was testimony tending to show that defendant told plaintiff that he should have his commission though another party should effect the sale, he could not recover. Jones v. Pendleton, 134 Mich. 460, 96 N. W. 574. Plaintiff then amended his declaration so as to include the promise that he should have the same commission though another party effected the sale. It is stated, in the prevailing opinion in that case, that "the plaintiff has but one cause of action. He failed to properly describe it. The question is whether the court has power to permit plaintiff to amend his declaration so that he may recover on the precise cause of action for which he brought suit, but which he failed to properly describe in his declaration.” That is not the situation in this case. Here the plaintiff deliberately, in his original declaration, set forth his right of action to be a conversion of the timber by violating the terms of a chattel mortgage. No other cause of action is even hinted at, except as to some logs left at Misery Bay. It contains no hint of negligence in towing or booming or care. In Jones v. Pendleton a commission was the sole cause of action. The plaintiff improperly described it. In this case the original and amended declarations described two absolutely independent causes of action, bearing no relation whatever to each other. The original says that defendant took and converted plaintiff's property because he had not complied with the terms of the chattel mortgage under which defendant seized it. The amended declaration says that defendant was negligent in handling and caring for the property after it had lawfully acquired possession. I think the case is clearly distinguishable from that of Jones v. Pendleton, and that this amendment was not permissible under the statute or any decisions of this

court. I do not think that an action of trover for conversion can, under the statute of amendments, be transformed into an action of negligence in the care of it. In the former case plaintiff is entitled to recover the value of the entire property, and in the latter only what damage has been done to the property. It is not sufficient that the parties be the same. They are always the same in cases of amendment. It is not sufficient that the property be the same. Usually the property is the same. In this case the property is not the same. In the trover case the declaration asserts that defendant converted to its own use the entire of its property. In the second case he asserts there was no conversion, but that the defendant lost a part of it through its negligence, and for that part only must it pay damages, and that, upon a cause of action to which no reference is made in the original declaration.

2. I think there was no evidence of any negligence in booming the logs in Portage Lake, a narrow land-locked harbor. It was a safe and proper place. Baudin and plaintiff had booms of some of these same logs there, which broke up before they were changed into the booms of the defendant. Their own witness testified: "I think there were two batches of logs down there in Portage Lake, one somewhere near the Union Brewery on this side, and the other somewhere near the Hancock Pumphouse, a little above Griff's Mill. They were left there until, I think, they broke up, some time in November. I didn't intend to disturb them at all, but they broke up, and I suggested that we bring them all down here and put them near the Isle Royale Mill. Those rafts that were here in Portage Lake were in the condition in which they were found up to the time they broke up. We didn't disturb them at all. We didn't open one of them. They were not combined with the lot we brought down at the time. The first I knew about their breaking up was, I guess, from Mr. Nichols, or somebody. I suggested to Mr. Goodell and Mr. Parnell that we take them and tow them down below the bridge and put them all in one lot, and lay them in back of Isle Royale there, somewhere, for the winter. I think we picked the logs up twice. We picked them up that fall. I superintended that work and ordered it done." Several rafts, six in number, according to plaintiff's own testimony, had been towed from Misery Bay to Portage Lake by plaintiff, who was employed by Baudin, and there tied up. There is no claim that they were not stored in a safe place, or that the boom was not properly constructed. The evidence of plaintiff is that it was one of the best booms in use. Plaintiff's own witness (Moore) testified that they were the best booms on the lake, with the exception of the Nester Estate Lake booms. There is no evidence that the booms used by the defendant were not sound, properly constructed, and such

as were in common use. The only evidence that is or can be relied upon to show negligence is the fact that the booms broke, perhaps, on three occasions. It is urged that this breakage was so frequent as to justify the inference that it was an improper boom. Two of plaintiff's booms, towed by his own tugs from Misery Bay, were fastened to the shore above the Portage Lake Bridge. Both these broke loose in November, and the logs, so far as possible, were picked up by the defendant as soon as the breaking was discovered. Would this have been sufficient to justify the jury in finding that plaintiff's booms were in bad condition or improperly constructed? In determining this question we must refer quite fully to the testimony. One Vaudrin testified that, late in the fall of 1901, he saw a raft break loose, and saw a gang of men at the bridge picking up logs. There is no testimony to show whether these logs came from one of plaintiff's booms which had broken up, or from one of the defendant's booms. This same witness testified that, at some time he did not say whenhe saw a number of logs around Portage Lake; that some farmers hauled them up, and sawed them up for wood, but he does not give any idea as to the number. Whether these came from the booms of plaintiff or of defendant there is not a scintilla of evidence to show. Plaintiff testified that defendant took out his boom, and put in its own; that the logs broke loose two or three times during that fall and the next spring; but plaintiff does not testify that these logs that broke loose in the fall did not come from his own booms, which were tied to the shore of Portage Lake, as above stated, and which, it is conceded, did break loose some time in November. It appears that plaintiff brought replevin for at least parts of his own booms. The only reliable testimony is that of plaintiff's witness Moore. This witness testified that, after the logs were stored along the shore between Snow Shoe Island and the Clubhouse, "nothing happened to the logs until next spring. There was a chain let loose in the spring. I got Mr. Croze's tugs-one or two of themand surrounded them. I happened to see them going away, and happened to be lucky to get one of Mr. Croze's tugs, and ran a boom around them and surrounded them. That was in the spring of 1902. Nothing happened to the logs during the winter and and up to the opening of navigation. There was no loss during that period. We didn't lose any logs in towing them down there from where they were first put. There may have been a stray log lost out, but nothing more than what would be usual in towing hemlock logs. In the spring of 1902 the logs were taken out and sorted. There was no loss of logs during that time up to the time they were sorted. After the logs were sorted, the Tamarack logs were taken up to Dollar Bay; the Canal Company's logs