the car sooner, but such negligence was open to the
observation of the deceased, and he saw fit to continue
in the use of the car. He made no objection to using it
in its crippled condition; gave no notice to any one in
authority which would indicate to defendant that he
refused to take the risk, which was as apparent to him
as to any one connected with the road. The circuit judge
was right in directing a verdict for the defendant.
The judgment will be affirmed.

MCGRATH, C. J., GRANT and HOOKER, JJ., concurred.
LONG, J., did not sit.

TOWNSHIP OF PLAINFIELD v. SAGE.

TAXES-FOREST PRODUCTS-WHERE ASSESSABLE.

Logs stored in a lake, close by a railroad, awaiting facilities for shipment by rail, are not in transit, within the meaning of 3 How. Stat. § 1170b, subd. 4, providing for the assessment of such property at its place of destination, but are within the proviso to said section that logs piled or left in any yard or railroad reserve shall not be deemed in transit, but shall be assessed to the owner thereof in the township where situate.

Error to Bay; Cobb, J. Submitted October 11, 1895. Decided October 22, 1895.

Assumpsit by the township of Plainfield against Henry W. Sage and others to recover a tax assessed against certain logs belonging to defendants. From a judgment for defendants upon verdict directed by the court, plaintiff brings error. Reversed.

Defendants are residents of the State of New York. They own a saw mill plant at West Bay City, Mich.,

where they manufacture their logs into lumber. In the winter of 1890-91, in the township of Plainfield and an adjoining township, they cut and hauled 6,500,000 feet of logs, and put them into Loon lake, which is about two miles long and three-fourths of a mile wide. They placed a boom around them, upon the ice, to prevent their floating over the lake when the ice should break up. Their ultimate destination was the defendants' mill at West Bay City. On one side of the lake there had formerly been a hoist for the purpose of taking the logs from the lake, and loading them on the cars for transportation. A spur track had also formerly been built from the main line of the railroad to this hoist, but had been discontinued. This spur track and hoist were to be rebuilt for the use of the defendants. The logs were hauled upon the lake about half a mile from the hoist, and, as they were left upon the ice, extended to the hoist. The hoist was between the two points where the boom was attached to the shore, and the point where the logs were brought upon the lake was between the two ends of the boom. The boom, therefore, included both the bank. ing ground and the hoist. As soon as the ice broke up, early in April, they commenced to crowd the logs towards the hoist with the boom sticks. The hoist and spur track were completed about June 5th, when defendants commenced the transportation by rail. A tax was assessed against these logs by the plaintiff, for the recovery of which this suit is brought.

M. J. Connine (McDonell & Hall, of counsel), for appellant.

T. F. Shepard, for appellees.

GRANT, J. (after stating the facts). The sole question presented is: Were these logs in transit on the second Monday in April,-the time fixed by the statute for the assessment of all property? 3 How. Stat. § 117061. The

statute providing for the assessment of forest products is as follows:

"Personal property of non-residents of the State, and all forest products owned by residents or non-residents or estates of deceased persons, shall be assessed to the owner or to the person having control thereof in the township or ward where the same may be, except that, where such property is in transit to some place within the State, it shall be assessed in such place: Provided, all forest products in transit on the second Monday in April, and thereafter found in the waters or streams of this State, or on the banks or shores of any lake, pond, or stream of this State, when the same is not at the place where it is to be manufactured, shall be held to have a place of destination at the sorting grounds of the rafting and driving agents or booming company nearest the mouth of such stream, unless the contrary shall be made to appear by the owner or party having the same in charge: Provided further, that all lumber, logs, timber, lath, pickets, shingles, posts, cordwood, tanbark, telegraph or telephone poles, or railroad ties, that may be piled or left in any yard, railroad reserve, or in any shed, shall not be deemed in transit, but shall be assessed to the owner thereof in the township or ward where the same may be situate at the time provided for by law for taking any assessment." 3 How. Stat. § 1170b, subd. 4.

These logs are not affected by the first proviso, since they were not in transit over any of the waters or streams of this State, within the meaning of that proviso. The last proviso is the controlling one. We held in Maurer v. Cliff, 94 Mich. 194, that logs and lumber piled along a railroad track, awaiting the convenience of the owner or the facilities for shipment, were not in transit, and that they were liable to assessment in the township where situate. Obviously, there is no distinction between a storage on land and in the water, awaiting facilities for shipment by rail. These logs were no more in transit than they would have been had they been left upon the skidways in the woods, or piled along the railroad, awaiting shipment. They were stored in the lake, close by the railroad, and so remained for two months, for the

convenience of the defendants. They were, therefore, not in transit, within the meaning of the statute, and were properly assessed in the plaintiff township.

Judgment reversed, and new trial ordered.

The other Justices concurred.

HUDSON v. MCKALE.

CONDITIONAL SALE-AFTER-ACQUIRED PROPERTY-LIEN OF VENDOR
-CHATTEL MORTGAGE.

A contract for the sale of a stock of goods, reserving title in
the vendor until payment of the purchase price, and providing
that goods purchased to replace those destroyed, "as well as
all others used in the business," shall be subject to the lien of
the agreement, operates, as to property subsequently acquired,
as a mortgage, and, unless filed as required by 2 How. Stat. §
6193, is to that extent void as to creditors of the vendee.1

Error to Ingham; Person, J. Submitted October 12, 1895. Decided October 22, 1895.

Replevin by Lester S. Hudson against William H. McKale for goods seized on attachment as the property of a third party. From a judgment for plaintiff on verdict directed by the court, defendant brings error. Reversed.

William A. Fraser (Sloman, Groesbeck & Robinson, of counsel), for appellant.

M. V. & R. A. Montgomery, for appellee.

The Michigan cases upon the subject of conditional sales are collected in a note to Pettyplace v. Manufacturing Co.. 103 Mich. 160. For cases determining the character of an instrument, as a mortgage or otherwise, see note to Damm v. Mason, 98 Mich. 237. As bearing upon the construction of section 6193, see Watson v. Mead, 98 Mich. 330, and note.

MONTGOMERY, J. Plaintiff was, prior to the 15th day of August, 1892, the owner of the stock and fixtures in a saloon in the city of Lansing. On that day he made a conditional sale of the property to one C. M. Webb. The contract provided that the title to the property should remain in the plaintiff until the purchase price was paid. Onehalf the consideration was paid down, and the rest was to be paid in installments. The contract, which was signed by both parties, contained the following provisions:

66

Said second party does severally agree to pay said first party the full and true sum of four thousand ($4,000) dollars, and the interest herein provided, according to the terms of this agreement; to use with care the property hereby intrusted to his care and use; to replace such of said property as is broken or destroyed; and to submit such substituted goods, as well as all others used in the above business, property, and chattels, to the lien and operation of this agreement."

After the purchase, Webb continued the business at the old stand, but in his own name, and bought goods on credit. Among others who sold him goods were Sloman & Co., who caused a levy to be made by the defendant, as constable, on goods purchased in the name of Webb, and shipped to him, and received into the saloon. Plaintiff brought replevin. On the trial the circuit judge directed a verdict for the plaintiff, and defendant brings

error.

The circuit judge evidently treated the agreement that all stock purchased by Webb should become the property of Hudson as a sale of the property to Hudson; and, there being no evidence that there was fraud in fact on the part of Hudson, the court held that the rights of the parties were governed by section 6190, 2 How. Stat., and that the title passed.

Section 6193, 2 How. Stat., provides that every mortgage, or conveyance intended to operate as a mortgage, which shall hereafter be made, which shall not be accompanied by an immediate delivery, and followed by an