such as the construction, motive power, mode of operation, and speed of each. The instruction ignored all of these matters. It is true, as a general proposition, that a street-railway company has no proprietary and superior right to the part of the street whereon its tracks are placed, and that the duty of exercising due care to avoid collisions rests upon it, as well as upon the owner or driver of other vehicles. But the duty is relative, and in determining in a given case whether either has exercised ordinary care, attention must be paid to the differences to which we have referred. Thus ordinary care and the law of the road require the driver of an ordinary vehicle passing another going in the same direction to drive to the left of the middle of the traveled part of the road. Gen. St. 1894, § 1946. Of necessity, no such duty rests upon a street-car company. If the driver of such vehicle is on that part of the street occupied by the railway tracks, and ahead of the cars, but driving slower than the convenience and accommodation of the public demand that the cars should go, such driver has not an equal right with the railway company to keep along the track. duty is to seasonably get off the tracks, and let the cars pass. So, at a street crossing, whether the company has only an equal right with the traveling public, or a greater or a less right, depends on the circumstances of each particular case,-for example, which one acquired the right of way. The instruction as given, without qualification, and as the law of this case, was misleading and prejudicial, although given in a case where the collision was at a street crossing, and there was no question as to the duty of the plaintiff to turn out and let the cars pass.

His

2. The second instruction is open to the criticism that the words "at least," as used therein, suggest to the jury that they were at liberty to impose a higher degree of care upon those in charge of the cars than is required of the owners or drivers of other vehicles. As already suggested, each must exercise ordinary care to avoid a collision, but it by no means follows that those in charge of the cars must exercise in all cases the same, or at least as much, vigilance as the drivers of other vehicles, in order to discharge the duty of exercising ordinary care. It may be greater or less, according to the circumstances of each case. The amount of vigilance to be exercised by the one in a given case cannot be determined by an arbitary comparison with that required of the other.

3. The trial court, by the third instruction, in effect directed the jury as a matter of law that, if the plaintiff saw the cars approaching at such a distance that he could apparently make the crossing safely, he had a right to attempt it, and that it was not negligence for him to make the attempt without looking a second time for the cars. This was a question of fact for the jury. It was

for them, upon the facts of this case, to say whether the plaintiff, although he could ap parently make the crossing in safety, was justified, in the exercise of ordinary care, in attempting it without again looking. It was reversible error to give the instruction.

4. The first and second instructions are copies of detached sentences to be found in the opinion of this court in the case of Shea v. Railway Co., 50 Minn. 395, 52 N. W. 902. Counsel for respondent seems to assume without argument that because the propositions, when read in connection with their context in an opinion and the question then under consideration, are correct, the action of the trial court in giving them as unqualified rules of law for the guidance of the jury in this case will be sustained. The mere reading of the opinion is a sufficient answer to the suggestion. The third instruction is a copy of a part of the syllabus to the case of Watson v. Railway Co., 53 Minn. 551, 55 N. W. 742, and, as applied to the facts of that case, it was correct, but, as a general legal proposition, it is not. As there must be a new trial in this case for the errors indicated, it is unnecessary to consider the other questions presented by the record. Order reversed, and a new trial granted.

In re BANK OF MINNESOTA. In re PLYMOUTH CLOTHING CO. (Supreme Court of Minnesota. Dec. 2, 1898.) APPEALS RULES OF SUPREME COURT.

Sup. Ct. Rule No. 4, providing that. if appellant shall fail to cause the proper return to be made and filed with the clerk within 60 days after the appeal is perfected, respondent may, "by notice in writing," require such return to be filed within 20 days, in no manner affects the right of respondent to move for a dismissal of the appeal for noncompliance with rule 11 (66 N. W. iv.), providing that at least 20 days before the term of this court at which a cause is noticed for trial appellant shall deliver to the adverse party a copy of the paper book, and of the assignment of errors, and of his points and authorities.

In the matter of the receivership of the Bank of Minnesota. Petition of the Plymouth Clothing Company. Motion to dismiss an ap peal. Granted.

Young & Lightner, for receivers. Nelson & Bramhall, for Plymouth Clothing Co.

PER CURIAM. This is a motion to dismiss the appeal herein under rule 14 for noncompliance with rule 11 (66 N. W. iv.), as to the service of paper book and points and authorities. Noncompliance with this rule is not denied, but the appellant claims that the motion must be denied because the respondent has not served a written notice upon its attorneys requiring the return to be made, as provided by rule 4. We have repeatedly decided and announced the decision from the bench that rule 4 was intended to speed the

prosecution of appeals by permitting the respondent to secure a dismissal of the appeal for a failure to file the return within the time limited, whether the court be in session or not, and that it in no manner affects the right of the respondent to move for a dismissal of the appeal for noncompliance with rule 11 (66 N. W. iv.). Appeal dismissed.

ANDERSON v. GREAT NORTHERN RY. CO.

(Supreme Court of Minnesota. Dec. 5, 1898.) INJURY TO SERVANT-INSTRUCTIONS.

The plaintiff, with others, was at work repairing a portion of defendant's roadbed, and was injured by the alleged negligence of a fellow servant in releasing, without giving any warning, a track jack which held up a part of the track, which by reason thereof fell upon the plaintiff's foot. The evidence on the trial was such that it was a question for the jury whether the work was being executed under such conditions and circumstances as to expose the plaintiff to the peculiar hazards incident to the use and operation of railroads. The trial court instructed the jury that, if it was the custom to give notice before releasing the jack, and such notice was not given, the jury would be warranted in finding the fellow servant operating the jack guilty of negligence, and that the defendant would be liable for the result of such negligence. Held error.

(Syllabus by the Court.)

Appeal from district court, Norman county; Frank Ives, Judge.

Action by Edward Anderson against the Great Northern Railway Company. Verdict for plaintiff. From an order denying judgment notwithstanding the verdict, or a new trial, defendant appeals. Reversed.

C. Wellington and W. R. Begg, for appellant. Peter Sharpe and W. W. Calkins, for respondent.

START, C. J. The plaintiff was one of a crew of men working for the defendant in repairing its roadbed, which had been washed out by high water. The ties and rails where the washout occurred were blocked up by timbers, so that trains continued to run notwithstanding the break in the roadbed. Dirt and gravel were dumped in to fill the break, and the plaintiff was at work, with his fellow servants, shoveling the dirt and gravel, so as to remove the timbers that temporarily supported the track. In this work of removal one side of the track was raised by a track jack, operated by a lever, by one of the men, who released the lever without giving any warning to the workmen, as plaintiff claims, and the track came down, and his foot was caught between one of the ties of the track and one of the timbers which had been used to support the track, and his foot was thereby crushed. He brought this action to recover damages for the injury, and had a verdict for $300. The defendant appealed from an order denying its alternative motion for

judgment notwithstanding the verdict or for a new trial.

The complaint, for the purpose of bringing the case within the doctrine of the case of Blomquist v. Railway Co., 65 Minn. 69, 67 N. W. 804, and making it appear that the plaintiff was injured while exposed to peculiar hazards incident to the use and operation of railroads, within the meaning of the statute (Gen. St. 1894, § 2701), alleged that the work was being executed in great and extraordinary haste, so as to complete the work and replace the track before the arrival of any trains. This allegation was put in issue by the answer, which also affirmatively alleged that plaintiff's injury was caused by one of the ordinary risks incident to the plaintiff's employment and to the work in which he was engaged. The evidence given on the trial was such that it was a question of fact for the jury whether or not the work in which the plaintiff was engaged at the time of his injury was being executed under such conditions and circumstances as to expose him to the peculiar hazards incident to the use and operation of railroads, and whether he was injured as the result of such dangers. This is admitted by the plaintiff. The defendant, however, claims that there is neither allegation nor evidence showing any connection between the alleged extraordinary haste in the execution of the work and the negligence of plaintiff's fellow servant in letting the track fall, and that for this reason the trial court erred in denying its motion to have the jury instructed to return a verdict for it, and in not granting its motion for judgment notwithstanding the verdict. It is true that the connection was not directly alleged in the complaint, but there was no objection to the evidence on this point, which was such that the jury might, if satisfactory to them, have fairly drawn the inference that the extraordinary haste under which the work was necessarily executed, in expectation of the coming of a train, was a factor in the negligence of the fellow servant in dropping the track without giving any warning. The defendant was not entitled to the instruction.

The trial court, as to the issue of negligence of the servant who dropped the track, and whether the defendant was liable for his negligence, instructed the jury as follows: "You will ascertain from the evidence whether or not the custom of their work there was that notice was to be given when the track jack was to be let loose; also whether or not that notice was given. If it was such a custom to give that notice, and notice was not given, then you would be warranted in finding the fellow servant was guilty of negligence, and that the company would be liable for the result of such negligence on the part of the coemployé." The giving of this instruction was duly excepted to. Manifestly it was error to give it. The trial court, in effect, instructed the jury that if it was the custom to give the notice, and it was not given, they would be

Justified and authorized in finding, from those facts alone, that the plaintiff's fellow servant was guilty of negligence, and that the defendant would be, as a matter of law, liable for the result of such negligence on his part. The important issue of fact in the case, as to whether the work was being executed under such conditions and circumstances as to expose the plaintiff to the peculiar hazards incident to the use and operation of railroads, was withdrawn by this instruction from the consideration of the jury, and the court held, as a matter of law, that if the co-servant was negligent the defendant was liable for his act. A new trial must be granted for this error. It is proper to add, with reference to such trial, that the trial court erred in permitting the plaintiff to give his opinion that it was neither practicable nor possible to work with safety in repairing the track in the manner he did, except by a warning from the man who held the lever of the track jack. Order reversed, and a new trial granted.

LILLIE v. SNOW et al. (Supreme Court of Michigan. Dec. 6, 1898.) QUIETING TITLE-POSSESSION NECESSARY TO SUPPORT BILL.

Complainant acquired title to the lands in suit by conveyance from one who had purchased them under a decree for taxes. At the date of the conveyance defendant was in possession by a tenant. Complainant procured the tenant to yield possession to her without process. Held that, as defendant's title had terminated by operation of law, complainant's possession, necessary to enable her to maintain a bill to quiet title, was not wrongfully obtained.

Appeal from circuit court, Muskegon county, in chancery; Fred J. Russell, Judge.

Bill to quiet title brought by Ella H. Lillie against James Snow, George C. Fitch, and George Bolt. From a decree for complainant defendants appeal. Affirmed.

Clarence W. Sessions (Arthur Jones, of counsel), for appellant Snow. Walter I. Lillie (Stephen H. Clink, of counsel), for appellee.

MONTGOMERY, J. This is an appeal from a decree in complainant's favor, filed under section 6626, 3 How. Ann. St., to quiet title to certain lands in Muskegon county. Complainant showed title in herself under a tax deed which established title in herself as against defendant Snow, who held the original title. The only defense attempted was that complainant was not in a position to maintain the bill, for the reason that she had, through her husband and agent, acquired the only possession which she obtained by unfair means, and with the purpose of filing the present bill. The facts, as disclosed by the record, are that one Lewis Rollenhagen became the purchaser of the lands in question under a decree for taxes of 1893. On the 20th of April, 1897, Rollen77 N.W.-16

hagen conveyed to complainant. At this date defendant Snow was in possession of the property by a tenant, one Strassburg. Shortly after complainant's purchase the husband of complainant visited the premises, and, after some negotiations, an agreement was made with the tenant that he vacate the premises and yield up possession to complainant upon complainant paying him the sum of $25, and agreeing that he (Strassburg) should have the privilege of harvesting a portion of the potatoes then planted. This agreement was effected after Mr. Lillie had stated that he would have the right to apply for a writ to put complainant in possession, and upon his statement that he would prefer to pay the $25 to him (Strassburg) than to pay a like amount in expenses. Mr. Lillie testified that he had in mind the filing of a bill at this time. Does the fact that he had this purpose, together with his obtaining possession in the manner stated, bar the complainant from remedy under this statute? This, it seems to me, should depend on whether he committed any wrong in acquiring possession. The statute provides that any person having actual possession, or legal or equitable title, to lands, may institute a suit in chancery, etc. Complainant is therefore within the letter of the statute. It has been held, however, that where the title has been obtained by the complainant's wrongful conduct, he is not within the spirit of the statute, and cannot maintain a bill. Defendant relies on these cases: The first is Stetson v. Cook, 39 Mich. 750. In that case it appeared that one Ellis was in possession of the land under parties in privity with defendant. Complainant made arrangements with Ellis by which complainant was let into possession, and immediately filed the bill to quiet title. The case was not one in which the title of the landlord had terminated either by lapse of time or operation of law, and hence was not within the exception to the general rule that a tenant cannot dispute the landlord's title until he has been reinvested with possession. It is apparent, therefore, that Ellis had been induced to yield up possession in violation of the landlord's rights. It was held that the statute was not intended to reach a case where a party acquires possession by sharp practice. The case of Watson v. Brewing Co., 61 Mich. 595, 28 N. W. 726, is also cited. In this case the defendant was in actual possession. The title under which defendant claimed had not terminated, and yet complainant unfairly and surreptitiously gained possession for the express purpose of filing the bill. It was held that he was not entitled to maintain the bill. It is apparent that the court in this last case did not intend to go further than to exclude this remedy in cases where the possession was taken wrongfully or surreptitiously, for in Board of Sup'rs v. City of Grand Rapids, 61 Mich. 173, 27 N. W. 888. the same justice who wrote the opinion in

Watson v. Brewing Co. held that where no other person or municipality had actual or exclusive possession, and the complainant on the 8th of October fenced in the locus in quo and maintained possession until October 24th, the complainant had shown a right to maintain the bill. In the present case the title of defendant had been terminated by operation of law. It was therefore lawful, and no breach of any duty which he owed to the defendant, for the tenant to surrender possession to the true owner. McGuffie v. Carter, 42 Mich. 497, 4 N. W. 211; Lamson v. Clarkson, 113 Mass. 348; Jenkinson v. Winans, 109 Mich. 524, 67 N. W. 549. It is difficult to conceive how it can be said that the complainant is in any way culpable in acquiring possession in the manner in which she did. Her title is not disputed. No force was used. No wrongful collusion with one in privity with defendant is shown. She took possession of what was her own, and, having acquired such possession and maintained it for some weeks, filed this bill, which, under the express language of the statute, she was authorized to maintain. The decree will be affirmed. The other justices concurred.

KOZMINSKI et ux. v. KUZNIAK et ux. (Supreme Court of Michigan. Dec. 6, 1898.) EXECUTION-HOMESTEAD-CONVEYANCE TO WIFE.

A wife owned part of a lot, which she mortgaged. The husband held title to the remaining portion. In order to negotiate a loan in a building association, all the land was conveyed to the husband, who executed a mortgage to the association, and then conveyed all the property to his wife. It was worth $2,500 to $2,800, and the incumbrance was $1,350. Held that, even though part of the lot was not a homestead, no bill in aid of execution against the husband on a subsequent judgment would lie to subject to it such realty, because the mortgage and homestead exceeded the value of the entire property, and the part not homestead would be first subject to the mortgage. Appeal from circuit court, Kent county, in chancery; William E. Grove, Judge.

Bill by Jacob Kozminski and wife against John Kuzniak and wife. There was a decree for defendants, and complainants appeal. Affirmed.

Thompson & Temple. for appellants. McKnight & McKnight, for appellees.

MONTGOMERY, J. This is a bill filed in aid of execution. The complainants recovered a decree for costs against the defendant John Kuzniak on the 27th of December, 1895. On the 24th of December, 1895, defendant John transferred to his wife, the co-defendant, a city lot upon which they were then living, and had been for some years, the lot being in size 66x148 feet, and having a small tenement house in addition to the family residence. It appears by the testimony that this lot was bought in two parcels, the first 66x124 feet, and this was conveyed to defendant Teo

fila Kuzniak in 1880. The remaining 24x66 feet was conveyed by Thomas J. O'Brien, in 1889, to defendant John Kuzniak. The defendant Teofila Kuzniak mortgaged these premises for $800 to one Nicholas Schenhofen, and afterwards, on February 28, 1889, for the purpose of securing an additional loan of $400, executed a warranty deed to Schenhofen, which, however, was intended as a mortgage. In 1890 the parties, desiring to make a loan of the Grand Rapids Mutual Building & Loan Association, were advised that the property should be deeded to Mr. Kuzniak, and that he should become a member of the association; and thereupon Mr. Schenhofen made a conveyance to John Kuzniak, and a mortgage on the entire lot was given to the association in the sum of $1,500. This loan was afterwards transferred, and a mortgage is now held upon the property by Horace J. Tuttle in the amount of $1,350. As before stated, after this mortgage was made, the property was conveyed by the defendant John Kuzniak to his wife. The evidence shows the value of this property at the time of the transfer to have been not to exceed $2.500 to $2,800. The complainants' counsel contend that as to a portion of this lot, at least, there was no homestead right. If we assume this to be true, yet under the ruling in Armitage v. Toll, 64 Mich. 412, 31 N. W. 408, the portion not set aside as a homestead should be first sold to satisfy the mortgage, and the homestead right would apply to the remainder. The mortgage and the homestead right exceed the value of the property, and did at the time of the transfer from defendant John to his wife. It is difficult to see how the complainants were in any way damaged by this transfer. The case is ruled by Nash v. Geraghty, 105 Mich. 382, 63 N. W. 437. The decree below dismissing the bill is affirmed. The other justices concurred.

1. In an action by a vendor to recover the price of land, in which the defense was fraudulent representations as to value, it appeared that defendant inquired of plaintiff as to whether the land contained plaster rock, and was informed by plaintiff that the land contained plaster of the quality found on land adjoining, with which defendant was familiar, and that it could be found at a certain depth; that de fendant relied upon plaintiff's representations; and that a large part of the land contained no plaster. Held, that there was evidence sufficient to warrant submitting to the jury the question of plaintiff's fraud.

2. Where, in an action for the price of land. the defendant seeks to recoup his damage for plaintiff's fraudulent representations as to value, but does not seek to rescind the sale, the fact that defendant paid a part of the price. and accepted a deed, with knowledge of the fraud, does not estop him from setting up fraud as a defense.