works property for what it is worth, and let me pay the balance; and then I believe I can, if all the creditors will have patience with me, pay off the O. F. Barnes debt." The witness was later on asked: "I think you said this $6,000 was under your control? "A. Yes, sir. 66 66 'Q. It is not where the creditors can reach it? A. I don't say that. I have not taken any pains to place it where they would reach it. I am not keeping it from creditors; I am keeping it for creditors. 66 "Q. Keeping it for those that accept the 20 per cent. offer? "A. Well, I want to pay the interest. I have said that I would pay the interest on the debts there up to the time when this bargain was made,-when this mortgage was made,—that is, on some interest on their papers. I expected to have paid that in money, and have said I would pay it in money, and am endeavoring to keep a reserve to meet that payment. "Q. Where is this $6,000? “A. I have said I preferred not to answer it unless it is material. "Q. I ask for an answer. "The Court: You need not answer it just at present." The return further shows that, after hearing all the testimony and the arguments of counsel, the circuit judge determined that the defendant had not assigned and disposed of his property with intent to defraud his creditors, and therefore dissolved the writ. We have not set out here the testimony in reference to the homestead property, but it appears that this real estate was deeded to the defendant's wife some two years prior to the time when these proceedings were had; that the deed was made under an arrangement by which the defendant took from his wife certain other real estate, and also at a time when the defendant was not indebted to any considerable extent, as compared with the amount of property held and owned by him, which was upwards of $500,We think the circuit judge was right in holding 000. that in this transaction there was no evidence of an intent to defraud any one. A consideration was paid for the homestead by the wife; and whether it was entirely adequate or not can have but little weight, under the testimony in the case. At least, the circuit judge had the right to determine the question of fact, and there was testimony warranting the conclusion which he reached that no fraud was shown in this transfer. The burden of proof was upon the plaintiff in that proceeding to show affirmatively that, whatever disposition was made of his property by the defendant, it was with intent to defraud creditors; and we cannot say, as matter of law, that the circuit judge was in error in his finding. State Bank v. Whittle, 41 Mich. 365; Schall v. Bly, 43 Id. 401; Genesee County Sav. Bank v. Barge Co., 52 Id. 164. We think the circuit judge was correct, not only in the finding made in the matter of the homestead interest, but also in finding upon the main question that there was no evidence showing or tending to show that the defendant had disposed of his property with intent to defraud his creditors. The testimony not only fails to show any such intent, but does show the utmost good faith upon the part of Mr. Barnes to pay his creditors. He was an indorser to a large amount upon the paper of the Lansing Iron & Engine Works, the Lansing Lumber Company, and of O. F. Barnes. He attempted to aid all these parties in the payment of their debts. His proposition was that the creditors of the Iron & Engine Works should receive from him 20 per cent. of that indebtedness if they would look to the principal debtor for the other 80 per cent. This was attempted, and to meet the 20 per cent. these mortgages were made. He had, in the mean time, paid up over $300,000 of the O. F. Barnes paper. There is no proof of any concealment of property, no artifice or bad faith. The disposition which he sought to make of his property was to pay as fast and as far as he could. If the arrangement could be carried out to pay 80 per cent. from the property of the Iron & Engine Works, he believed he could pay the debts of his son, O. F. Barnes, in full. This was the inducement which led him to make the attempt, and the record is clear that he has disposed of none of his property except in payment of the debts of these concerns. The $6,000 or $7,000 which had been received from the mortgage was kept for the purpose of carrying out that arrangement. He had made no disposition of it. He kept it, and had it under his control, to meet the interest in that matter. This is conclusively shown by his testimony. It is said, however, that the arrangement made with the creditors of the Iron & Engine Works was fraudulent, in that it was a proposition to them to take 20 per cent. and release him, or he would not pay anything. This is not the testimony of Mr. Barnes, and the circuit judge held that it did not bear that construction; and in that the circuit judge was correct. The whole situation must be looked at and the arrangement viewed in the light of the surrounding circumstances. It appears to us that the circuit judge was right in saying that the testimony warranted the construction that it was an honest effort to pay all he could out of his property, and not an effort to defraud anybody. It is claimed, however, that the giving of the mortgage for $100,000, and receiving only $50,000 thereon, is an evidence of fraud. We do not think so. The money received on the mortgage, or the most of it, was at once turned over to creditors; and the reason of giving it for $100,000 is fully explained. It is said, also, that the refusal to disclose where the $6,000 was deposited or kept was evidence of fraud. When it is remembered for what purpose it was kept on hand, there can be no question that such safe-keeping was in the interest of creditors, and not against their rights. was to aid in carrying out the arrangement made, and to pay the interest on the amount necessary to do so. The keeping it away from one set of creditors to the advantage of another would be no evidence of fraud. He had the right to prefer one creditor over another, and to pay off one class first in preference to another. If the circuit judge had permitted the answer to the question, and the defendant had answered that he had the securities for this $6,000 concealed at his house, or the amount in cash in his pocket, it would not warrant any inference of fraud, under the circumstances here stated. Gore v. Ray, 73 Mich. 385. No witness was called by the plaintiff except the defendant. It is upon his testimony alone that plaintiff relies to sustain its suit; and, as we have already said, there is not a particle of evidence showing or tending to show any fraud or concealment. All his actions have been in the interest of creditors, or some of them. We have no power to reverse the findings of the circuit judge upon the questions of fact if there is evidence to sustain them. We think they are sustained by the evidence, and that the circuit judge was not in error in ruling out the question as to where the $6,000 was kept by defendant. Judgment affirmed. The other Justices concurred. THE CHEBOYGAN LUMBER COMPANY V. THE DELTA Negligence-Setting fires by steamboats-Insufficient appliances- 1. The owner of a steamboat is not under the legal duty to use the most effective means known to prevent the escape of sparks from its smokestack, and, if he uses an appliance or device which experience has shown to be reasonably effective in accomplishing that result, he is not required to use additional appliances or devices, although the danger might thereby be greatly lessened. 2. The improper use of proper appliances to prevent the escape of sparks from the smokestack of a steamboat must be distinctly averred in order to be available as a ground of recovery in a suit for the loss of property set on fire, as claimed, by sparks thus emitted. 3. Where, in such a suit, the sole theory of the plaintiff is that reasonable care and precaution, under the common law, required the defendant to provide the smokestack of its steamboat with a screen or spark arrester, and that its failure to do so caused the fire complained of, and the theory of the defendant, which is supported by evidence, is that it did provide suitable appliances, in dampers and a flue cap, to prevent the escape of sparks, and that they were as effective as a screen, if not more so, as preventives, it is entitled to an instruction that if the jury find that the steamboat was so equipped that, by closing her dampers and opening the flue cap, no sparks or fire sufficient to have set the plaintiff's property on fire could have escaped from said smokestack, the plaintiff cannot recover, even though they find that the dampers were not closed or the flue cap open. 4. The effect of such a request, if given, is entirely negatived by the additional instruction that the jury must further find “that the use of ordinary care did not require the defendant, in addition, to have the smokestack of its boat equipped with a fire screen to prevent the escape of sparks." 5. The act of Congress (U. S. Rev. Stat. chap. 1, 2, title 2), and the regulations adopted thereunder by the board of supervising inspectors, relating to the equipment of vessels engaged in |