By the statute of Michigan (2 How. Ann. St. p. 2127, § 8698), it is provided that: "After the 31st day of December, in the year of our Lord eighteen hundred and sixty-three, no person shall bring nor maintain any action for the recovery of any lands or the possession thereof, or make any entry thereupon unless such action is commenced or entry made within the time herein limited, therefor, after the right to make such entry or to bring such action, shall have first accrued to the plaintiff or to some person through whom he claims, to wit: First. Within five years where the defendants claim title to the land in question, by, or through some deed made upon the sale thereof by an executor, administrator or guardian or by a sheriff or other proper ministerial officer under the order, judgment, decree or process of a court or legal tribunal of competent jurisdiction within this state. Second. Within ten years where the defendant claims title under a deed made by some officer of this state or of the United States, authorized to make deeds upon the sale of lands for taxes assessed and levied within this state. Third. Within fifteen years in all other cases." Whatever infirmity inhered in the conveyance by Morgan to the decedents, Lucy Morgan and Franklin L. Parker, the lapse of time. has healed, unless the case made by the bill can be brought within the provision of section 8724. That section provides: "If any person who is liable to any of the actions mentioned in this chapter, shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he has such cause of action, although such action would be otherwise barred by the provisions of this chapter." The conveyances complained of neither concealed themselves, nor were such affirmative acts of fraud as are excepted from the operation of the statute. For aught that appears from the bill, the facts it states as ground of relief were as well known to complainant for at least 15 years before this bill was filed as they now are. Complainant was under no disability, nor is it claimed that any affirmative acts on the part of Morgan, his wife, or Franklin L. Parker have misled him in any particular, or induced his inaction. The utmost of his charges against the defendant Lucy Parker is that she had knowledge of the object which Morgan sought to accomplish by the conveyance of his property. This charge is made upon information and belief, and it clearly appears from the bill that complainant was in possession of that information, and had the same belief which he now entertains, before it became necessary to sue upon his judgment in this court, and for over three years before the filing of this bill. The bill makes no case whatever against the defendants Kinne and Johnson, except their possession in their representative characters as executors of the estate of Lucy W. S. Morgan of the property conveyed to her by her husband, and except, also, the charge, upon information and belief, that they have in their possession books, papers, documents, etc., which would support the case of complainant. As this charge is made upon information and belief, it lacks the weight and significance which a positive averment would be entitled to receive, and, in the view we have taken of the case, is immaterial. There is no equity in complainant's bill, and it should be dismissed, with costs. LUMLEY v. WABASH RY. CO. (Circuit Court, E. D. Michigan. August 16, 1895.) 1. JUDICIAL NOTICE-FOREIGN CITIZENSHIP. The court will take notice of the fact that Canadian citizens are "citi- 2. ALLEGATIONS IN PLEADING-CONCLUSIVENESS. One who obtains a removal from a state court by a petition alleging 3. SAME-ADMISSIONS. An allegation by plaintiff that a paper was signed by him after hearing 4. SIGNATURE OF PAPER-IGNORANCE OF CONTENTS. One can avoid the consequences of his failure to read a paper before 5. LACHES-CANCELLATION OF RELEASE-MISTAKE. A bill to cancel a release given by plaintiff of all claims on account of 6. PLEADING-STATEMENT OF CONCLUSION. Allegations in a bill that certain things were done by plaintiff "fraudu- 7. LACHES. Plaintiff's poverty will not excuse delay in the assertion of his rights. The complainant is a citizen of the province of Ontario, in the dominion the queen of Great Britain and Ireland, and that the defendant was and is a corporation organized and existing under the laws of the state of Missouri, and a citizen and resident of said state. An order of removal was made upon this petition, and the transcript from the state court was seasonably filed in this court. The cause thus removed was, by stipulation between the attorneys for the respective parties, discontinued on the 27th day of June, 1894, and on the 19th of September, 1894, the plaintiff, describing himself as "a resident and citizen of the province of Ontario, in the dominion of Canada" (being in terms the same averment of his citizenship as was made in the cause removed and subsequently discontinued), filed his declaration in this court, as commencement of suit, describing the defendant as a corporation organized and doing business under the laws of the state of Michigan. The form of action was case for the alleged negligence of the defendant, whereby the plaintiff suffered the injuries mentioned above, while being transported over the defendant's road; and the declaration also contains a count based upon the alleged failure of the defendant to provide a competent surgeon and physician to treat and care for the injuries of the plaintiff, by reason of which failure and the alleged want of care and skill of the physician employed by the defendant, to whose care the plaintiff submitted himself, the plaintiff did not receive proper treatment, and his injuries were greatly aggravated, and were rendered permanent and incurable, and have disabled the plaintiff, and rendered him wholly unfit to labor or earn his living. The ad damnum of the declaration is $20,000. The defendant pleaded the general issue. The cause came on for trial at the November term, 1894, of this court, and after the close of the evidence the defendant moved the court for an instruction to the jury to find a verdict for the defendant on the ground that the cause of action was barred by the release executed by the plaintiff. The following is a copy of the release in evidence by the defendant: "Exhibit A. Form 2,105. "Whereas, on the 3rd day of October, A. D. 1890, I, Ephraim Lumley, of Ridgetown, Ontario, Canada, was a passenger of the Wabash Railroad Company, and as such passenger was engaged in the discharge of my duty, in caring for horses loaded in car,-said car standing on tracks in R. R. yard, Detroit, Mich., at which time said car wherein I was was run against & upon by a locomotive, giving car heavy shock, whereby I was injured,-on the 3d district, E. division, of said railroad; and whereas, I, the said Ephraim Lumley, received certain injuries, to wit, severe contused and lacerated wound on forehead, right side, fracture of right arm between wrist and elbow, and various injuries and contusions, both internally and externally, in and on various parts of my body; and whereas, I, the said Ephraim Lumley, believe that my injuries are the direct result of the negligence of said railroad company, its officers, agents, and employés; and whereas, the said railroad company denies any and all negligence on the part of itself, its officers, agents, and employés, and denies any and all liability for damages for the injuries so as aforesaid by me sustained, but by reason of an offer of compromise made by me, the said Ephraim Lumley, for the purpose of avoiding litigation, to receive and accept the sum of seventy-five dollars in full accord and satisfaction for all claims for damages which I may or might have, either at common law or by virtue of any legislative enactment of the state of Michigan, for the injuries aforesaid, have paid to me the said sum of seventy-five dollars: Now, therefore, in consideration of the premises, and of the payment to me of the aforesaid sum of seventy-five dollars, the receipt whereof I do hereby acknowledge, remise, quitclaim, and forever discharge the said the Wabash Railroad Company, its leased and operated lines, of and from all actions, suits, claims, reckonings, and demands for, on account of, or arising from injuries so as aforesaid received, and any, every, and all results hereafter flowing therefrom. Witness my hand and seal this 6th day of October, A. D. 1890. his "Ephraim X Lumley. [Seal.] mark "Signed, sealed, and delivered in presence of H. W. Morehouse. "Witnessed by Jno. Kniffen." Upon the intimation of the court at the close of the argument that this release, being under seal, could not be avoided at law, under the testimony, but only upon a bill in equity, the court, upon the application of the plaintiff, permitted him to withdraw a juror, on condition that he should file a bill in equity in this court within 30 days for the cancellation of said release. In compliance with this condition, the bill of complaint in this cause was filed July 7, 1895. This bill describes the complainant as a "resident of the province of Ontario, dominion of Canada, and a citizen of the dominion of Canada." It sets forth substantially as stated in the declaration the particulars of the accident of the 3d of October, 1890, in the yards of defendant at Detroit; that, except the injuries to his head and the fracture of his right arm, plaintiff was ignorant of the other injuries by him received, and for which he sought compensation in the cause at law; that plaintiff continued his journey to his destination, Danville, Ill., where he arrived October 5, 1890, where his arm was treated by the chief surgeon of the defendant; that on the morning of October 6, 1890, he went to said surgeon's office, where he met one Austin, an agent of defendant, who expressed his desire to settle with plaintiff for the fracture of his arm and the contusion of his head; that said surgeon then and there stated that the contusion was trivial, and that the fracture would be entirely healed in about six weeks, and that plaintiff would be entirely well, and able to resume his regular employment, in not to exceed eight weeks; that plaintiff's wages at that time were $8 per week, and Austin offered to pay plaintiff for eight weeks' time at that rate, and a small sum for such additional medical attendance as he might require,-in all, $75. This proposition complainant accepted, as his bill avers, upon those conditions, viz. "that he should be well in not to exceed eight weeks, and that he would accept the said seventy-five dollars in satisfaction of said injuries so talked about," and executed the release, receiving the $75 therefor. The bill avers that the claim agent, Austin, "pretended to read the paper to which your orator set his mark, but that he read the same with great rapidity. Whether he read all of it, your orator does not know; but your orator charges that he did not, and that the only portion which was read so that complainant could understand it was that relating to the receipt of $75, and the expression fracture of the arm.'" The further charge of the bill is that, "in so far as the paper recites that there was a controversy as to the liability of the company, it is false and fraudulent, and was imposed upon your orator fraudulently, and without proper reading on the part of said claim agent, and that your orator never intended to execute any such paper, and no such agreement was ever made between the parties"; that it was executed wholly on the absolute and unqualified statements of defendant's chief surgeon "that complainant would be entirely well and able to resume his employment in not to exceed eight weeks, and the implicit confidence in said statements by said plaintiff, who believed the same to be true, and he would not have set his mark to said paper except for such representations and statements, nor would he have accepted the $75 as satisfaction for the forearm and the wounds on his head"; that, before this settlement, complainant's right shoulder and right part of his body adjacent began to pain him to such an extent as to alarm him, but the surgeon assured him that such pain was merely sympathetic, and arose from the fracture of the arm. Plaintiff returned to his home on the 7th of October, 1890, where his shoulder and the muscles and parts adjacent again distressed him greatly, so hat he could not remove his coat alone, and the same was necessarily cut off his person. He denies that any examination was made by the surgeon at Danville of any part of his body, except the forehead and right arm, and asserts that, from the time of complainant's arrival home, his shoulder grew rapidly worse, but, relying upon the assurance given him by the defendant's surgeon, he did not call a physician until the pain had become unendurable, and such as to cause him alarm; that he still suffers from such injuries; that the "injury to the shoulder is permanent, and is variously described by surgeons whom he has consulted as adhesion of the right shoulder joint, atrophy of the muscles and injury to the nerves of the right side, and in addition thereto, and as a consequence thereof, the loss of mobility of the fingers of the right hand, and that his shoulder has been dislocated and fractured in said collision; that by reason of said injury he has been totally helpless since October 7, 1890, unable to pursue his calling as a carpenter, suffering from excruciating pain day and night, unable to clothe or wash himself or to put on or remove his shoes and other articles of apparel; that for a number of weeks after his return home he believed that the injuries to his shoulder would disappear with the healing of his right arm, but he then discovered that the injury was independent and distinct from the fracture of the forearm, and was permanent, and thereupon notified the chief surgeon of the defendant of such injuries, as additional to those for which said surgeon treated him, and notified the defendant that he should insist that he was not bound by the receipt of seventy-five dollars paid to him at Danville, Illinois, as a consideration of the release, and that he should insist upon his rights in the premises"; that he kept no copy of the release signed by him, and he disclaims recollection after his return home of the contents thereof, except that it recited the receipt of $75, and something about the fracture of the arm, so that he was unable to tell his friends or his attorney what the contents of that paper were. The bill further alleges that, "in the conversation preceding the execution of the release by complainant, nothing was said about any injury, except that to the forearm, and that it was not the intention of the parties to settle any other matter or thing. The complainant denies that he ever freely or deliberately, or with knowledge, executed any paper releasing or discharging the defendant for any injuries to his person whatsoever, except the fracture of the arm and the slight contusion of the brow, and that in so far as said alleged release covers, expressly or impliedly, any other injuries, it was obtained from his surreptitiously and fraudulently; that he is comparatively an ignorant person, unused to such business; had traveled but little on the railroad; that he never had any business, to speak of, with professional persons, and stood in great awe of persons of the eminence and standing of said claim agent and chief surgeon, and trusted entirely to the assurance of the former that he would rapidly recover, and he did not employ counsel, or examine the papers which were prepared for him, but relied upon the good faith and honesty of said officers of defendant; that if said release was not obtained by actual fraud on the part of the officers, and by the suppression from your orator of the truth concerning his physical condition by said surgeon, that then it was given and received under a mutual mistake of the vital facts concerning your orator's injuries; * that either said surgeon knew of the same, or surmised the same, and suppressed the facts from your orator, or all the parties, when said alleged release was made by your orator, were in total ignorance of said severe injuries, and said agreement which was arrived at was made under a total, complete, and vital misapprehension of fact on the part of all the parties concerned; and that in either case said alleged release was never binding upon your orator." * As an excuse for the delay in bringing his action, he alleges that he "was without means to enforce his rights against the defendant; that he resides in Ontario, and had scarcely means to meet his necessary living expenses; that his financial condition was such that he was obliged to receive aid from a Masonic association of which he is a member; that he had no money wherewith to fee lawyers to prosecute his claims, and was without the necessary means to pay for proper surgical and medical attendance, although he did receive surgical attendance out of the kindness of heart of local surgeons who were willing to wait for their pay; * that during all * * the years from his said injury, until the present time, he has been unable to earn, and never has earned, a single dollar, although up to the time of his said injury he was well, hearty, and strong, and of full earning capacity, and constantly employed. *" He further says, after protesting against the necessity of repaying the $75 and interest, "that in June, 1894, the defendant furnished his attorney with a copy of the release, and, under the instructions of said attorney, complainant tendered on the 28th day of June, 1894, the seventy-five dollars and interest,-in all, $94.60,-which the defendant declined to accept. The bill recites the commence |