that request was refused, or if the railroad company, instead of responding to the request, assured him that the cars would start out in a short period of time, so as to make watering and feeding unnecessary, and led him to believe by what they said to him that the train would start on, that he would not have to wait there any great length of time, and you find as a matter of fact, from the evidence in the case, that he made such a request of the company, and that they either refused or neglected or paid no attention to the request, and, in consequence of their refusal or neglect to accede to this request to place the car in a position where the horses might be taken out and cared for, fed, watered, and looked over by the agent in charge of them, and you also find that, in consequence, this particular horse-the gray horse-died in consequence of that horse not having food and water while the car was standing upon the track at West Bay City, and also in consequence of the car being detained or remaining on the track at West Bay City until 12:35 the same day, that those two events resulted in the horse becoming diseased, and, as a result of the disease, he died, the railway company 155 would be responsible for the damage resulting to the plaintiff's in consequence of the horse's death. Therefore, it is a question of fact for the jury, and I confine it entirely to what occurred at Bay City. . . . If you find, as a matter of fact in this case, that a request was made by Mr. Welsh of the yardmaster, the proper party to look after a matter of this kind, or some one who was in his office, placed there by him to attend to matters during his absence, and that this request was not considered or acceded to, but he neglected to put that car in a position where the horses could be fed and watered that night, and you also find as a matter of fact that failing to do that, and also failing to transport the horses immediately or soon afterward to their destination, so that they might be fed and watered at their destination, but leav ing the car without transporting it until 12:35 the following day, that the two, combined together, standing in the car upon the track, and the horses not being fed and watered, produced the disease that caused his death, then I think the railroad company would be liable, unless you find that the plaintiffs, by their own negligence, contributed to the injury -the disease of the horses."

Under these instructions it is clear that the jury must have found that the failure to water and feed the horses was

the occasion of the disease, resulting in death, in the sense that but for the failure to water the horses the injury would not have occurred. The fact that the circuit judge associated with this the attendant circumstances, and treated the attendant circumstances as a part of the cause, wrought no injury to the defendant, and was not only not error, but, we think, proper. It is clear that failure to water the horses at starting would not be negligence on the part of the railroad company, nor, if the entire time consumed in their transpor tation were only two hours, would any one contend that failure to furnish an opportunity for watering would constitute negligence on the part of the railroad company. But the neg ligence in failure to permit an opportunity to water the horses is shown in view of the fact that the horses had been seventeen 156 hours on the road when the request was preferred, and were subsequently detained for several hours thereafter.

The defendant requested the court to charge the jury that the defendant was not legally bound in any way to care for the horses while in transit, and the request for assistance claimed to have been made by Mr. Welsh to the yardmaster at West Bay City could not shift the duty to care for the stock on the defendant. We think the request was properly refused. The evidence tended to show that, without having afforded an opportunity for unloading the horses, they could not be fed, watered, and cared for. The provision in the contract that "the stock is to be loaded, unloaded, fed, watered, and otherwise cared for, while in the cars, by the shipper or owner," does not mean that the duty is to be performed by the shipper while the train is in motion, and without being afforded an opportunity by the company to perform the duty. If the provision should be given any force it creates a very fair inference that the company will afford the shipper the opportunity to perform the duty which it has seen fit to provide shall rest upon him.

It is also contended that the plaintiffs' testimony failed to show due care on the part of Welsh to care for the horses, and that the horses might have been unloaded without moving the car. But we think these questions were fairly questions for the jury, and properly submitted.

An examination of the record convinces us that there was no error to the prejudice of the defendant, and the judgment will be affirmed, with costs.

The other justices concurred.

Carriers of LIVESTOCK-DUTY to Feed and WATER.—A railway com. pany carrying livestock must provide suitable places where they can be fed and watered in every kind of weather, without injury, so far as this can be done by the use of proper care, and for a failure to perform this duty it must respond in damages: International etc. Ry. Co. v. McRae, 82 Tex. 614; 27 Am. St. Rep. 926, and note. Where it is found that cattle, being transported in a railroad car with hogs, are suffering the conductor of the train is not justified in refusing, upon the shipper's request, to lay out the car at a station merely because the stock pen at that place is unsafe for hogs, it not appearing that the cattle could not be separately unloaded, or that the company was under no duty of having a pen safe for hogs: Johnson v. Alabama etc. Ry. Co., 69 Miss. 191; 30 Am. St. Rep. 534, and note. See, also, the extended note to Clark v. Rochester etc. R. R. Co., 67 Am. Dec. 208-217. NEGLIGENCE.-SUFFICIENCY OF COMPLAINT: See the note to Madden v. Port Royal etc. Ry. Co., 28 Am. St. Rep. 858, where the cases are collected.

CLUETT V. ROSENTHAL.

[100 MICHIGAN, 193.]

FRAUDULENT CONVEYANCES.-CHATTEL MORTGAGE, authorizing the mort gagee to take possession forthwith, and, in addition to the usual power of sale upon default, authorizing the mortgagee to sell at private sale or in the usual course of trade, does not vest any actual title in the mortgagee, and is not inconsistent with the rights of the mortgagors or their creditors who may acquire liens to redeem at any time. Hence such mortgage is not void as a general assignment with preferences. GARNISHMENT-WAIVER.-A garnishee defendant waives his right to have

the case tried as against him at the term at which judgment is rendered against the principal defendants, by noticing the case for a subsequent term, and in that term consenting that it be continued. The case must thereafter proceed as other issues of fact, subject to notice by either party.

EVIDENCE.-BOOKS OF ACCOUNT of a partnership which has executed a chattel mortgage on its goods in trust to secure an alleged indebtedness to the mortgagee and others are admissible in evidence as tending to show the mala fides of the transaction, if they tend to prove that part of the alleged indebtedness never in fact existed, and that the mortgagee was so familiar with the business of the mortgagors as to support the inference that he had examined the books. EVIDENCE IMPROPERLY OBTAINED CONTENTS OF ACCOUNT-BOOKS. — The fact that knowledge of the contents of account-books was obtained by a witness while they were in the hands of a sheriff under an authorized attachment does not render his testimony as to such contents incom petent if, at the time such knowledge was obtained, he was not acting for the person who seeks to introduce such evidence.

EVIDENCE OBTAINED BY TORT.-One who is in no way responsible for a tort by which information is obtained may introduce evidence of the facts so ascertained, although trespass has been committed by the witness in obtaining the information.

EVIDENCE OBTAINED BY TORT.-Courts do not pause in the trial of a case to open up a collateral inquiry upon the question of whether a wrong has been committed in obtaining information possessed by a wit

ness.

JURY TRIAL-ERRONEOUS CONDUCT OF COUNSEL IN ARGUMENT.-Language used by counsel which evinces a studied purpose to arouse the prejudice of the jury, based upon facts not in the case, is ground for the reversal of the verdict and judgment.

GARNISHMENT. The mortgage involved in this case authorized the mortgagee to take possession forthwith, and in addition to a power of sale upon default, provided that "if, however, said second party shall deem it more advantageous to sell said property, or any part thereof at private sale or in the usual course of trade, he is hereby expressly authorized to make such private sale, or to sell in the usual course of trade, retaining and applying the proceeds to the liquidation of the indebtedness hereby secured, as herein before mentioned."

Bunker & Carpenter, for the appellant.

Brown & Lovelace, for the respondents.

195 MONTGOMERY, J. On the twenty-fifth day of June, 1892, the principal defendants, Sol and Sam Rosenthal, executed to the garnishee defendant, Gates L. Rosenthal, a trust mortgage to secure fifteen thousand eight hundred dollars of alleged indebtedness of the mortgagors, which consisted of eighteen hundred and fifty dollars to the Union National Bank, nine thousand dollars to Gates L. Rosenthal, two thousand nine hundred and fifty dollars to Rosen Brothers, and two thousand dollars to Ben Kersberg, of Kansas City. The mortgage covered the entire stock of Rosenthal Brothers, together with their books of account, credits, evidences of debt, rights of action, and bills and accounts receivable. The defendant took possession under the mortgage very shortly after its execution. This suit in garnishment was instituted for the purpose of attacking the validity of the mortgage. It is claimed: 1. That it amounted to a general assignment with preferences; and 2. That it was actually fraudulent as against the creditors of Rosenthal Brothers.

We do not find support for the first contention. The only provision of the chattel mortgage which is unusual is that authorizing the mortgagee to sell at private sale or in the usual course of trade. This does not vest any actual title

in the mortgagee, and is not inconsistent with the right of the mortgagors, or their creditors who may acquire 196 liens, to redeem at any time. The provision confers no power upon the mortgagee to reinvest the proceeds of the sales, or apply them to any other purpose than the satisfaction of the secured claims. The case is not at all analogous to Kendall v. Bishop, 76 Mich. 634. In that case the mortgagee was empowered to reinvest the trust funds, and add to the stock.

The court below was of opinion that the mortgage was not void upon its face, and submitted the question of fraud to the jury. The trial resulted in a verdict for the plaintiffs. The questions presented by the appellant's counsel relate to proceedings at the trial. We do not think the court erred in proceeding to a trial of the case. The defendant waived his right to have the case tried at the term at which judgment was rendered against the principal defendants by noticing the case for a subsequent term, and, in that term, consented that the case be continued. Having waived the statutory right, the case must thereafter proceed as other issues of fact, subject to notice by either party.

Error is assigned upon a ruling of the circuit judge admitting proofs of the contents of the books of Rosenthal Brothers. Two grounds are urged against the admissibility of the testimony offered: 1. That the original books themselves were mere hearsay, in a suit against Gates L. Rosenthal; and 2. That the secondary evidence admitted was improperly obtained, and therefore it should have been excluded. As to the admissibility of the books themselves, we think the court was not in error. The testimony tended to show that defendant had previously been connected with Rosenthal Brothers, and severed his connection with them in 1890; that between the first day of January, 1892, and the first day of June Rosenthal Brothers had purchased very largely, their purchases amounting to eighteen thousand dollars; that defendant had, after severing his connection 197 with the firm, kept some track of the business; that when he took the mortgage in June, 1892, as trustee, he went through the form of taking possession, but continued Rosenthal Brothers in actual charge of the business; that the stock was subsequently sold by the mortgagee, and bid in by him in form, but that Rosenthal Brothers still continued in actual possession; that in taking the mortgage he assumed to act as trustee for certain named creditors, who it does not appear were present;