and receiving rollers there were two knives attached to one arbor adjusted below the surface of the table, and extending clear across it a distance of 28 inches. These knives, instead of being smooth as in an ordinary planer, were shaped with a tooth that projected up, the cutting edge of the knife formed the hoops, and the teeth separated them, so that each of the knives was composed of a series of upwardly projecting teeth, and between the teeth a knife surface of about an inch and a quarter wide. The knives were placed one on each side of the arbor, which revolved rapidly at a speed of 4,000 revolutions a minute. The knives were covered by a pressure bar, so that pieces would not fly out, and the mechanism was thus concealed from the view of the workman. The material which was used on the planer was prepared from elm logs. The log is first steamed, and then slices about the thickness of a hoop are cut off from it. These slices, called "sheets," are carried by means of a conveyor to the planer, and are pushed through the feed rolls, so that the revolving knives coming in contact with them plane them and cut them into separate hoops, and the receiving rollers take hold of them and carry them through. The knives extend far enough through a slot in the table to shape, plane, and separate the hoops with a downward stroke. The top rollers were all weighted down at the bearings. The lower rollers worked in solid boxes. The space between the rollers was less than the thickness of a hoop, and in that way purchase upon the "sheets" and the hoops was secured. The plaintiff observed that the machine was not working properly about one month before the accident, and the millwright fixed it. Again the day of and before the accident he called the attention of the millwright to the fact that it did not seem to be working properly, saying to him that the second set of rollers that is, the middle set, or receiving rollers-would not draw the hoops through. The millwright, who was charged with the duty of keeping the machine in repair, and who represented Mr. Goldie-Mr. Goldie not being present-said he would fix the machine. The millwright went and looked at it, attempted to fix it, said it was all right, and to go ahead with the work. The plaintiff went ahead, and, after putting certain sheets through the machine, and while leaning over to take up another, one of the hoops which the receiving rollers failed to carry through the first set of rollers struck the plaintiff on the leg above the knee, and ran up his limb, injuring his scrotum and groin, bursting a blood vessel, and doing other injuries, from the effects of which he will

never recover.

Plaintiff's claim is that the hoop was thrown back because the lower of the second or receiving set of rollers was permitted to

machine, and was not carried through, because the rollers in that condition could not perform their function. It is also the claim of the plaintiff that the manner of attempting to repair this box was improper. But it appears by his testimony that it had been the practice for two months for the millwright to fix this box in the same way, and the rollers would then work all right for a time, and then get out of place again; that he spoke to the millwright about the machine a month before the injury, and he repaired the box by driving tins into it; and again on the morning of the injury the same thing occurred. The plaintiff was as familiar with the methods employed by the millwright to remedy the defect as was the millwright himself. He knew the result which had followed on previous occasions. He must have known that it was simply a question of time when the roller would again drop down. There was nothing concealed or hidden in the danger. The whole machinery was open to his observation, and we think the circuit judge committed no error in holding that the plaintiff assumed the risk. Wheeler v. Berry, 95 Mich. 250, 54 N. W. 876; Lamotte v. Boyce, 105 Mich. 545, 63 N. W. 517; Hayball v. Railway Company, 114 Mich. 135, 72 Ν. W. 145.

The judgment is affirmed, with costs. The other Justices concurred.

NICHOLS et al. v. MONJEAU. (Supreme Court of Michigan. March 30,

1903.)

BAILEE-SALE OF BAILED CHATTELS-APPARENT AUTHORITY-DISAFFIRMANCE OF SALE -DUTY OF OWNER-ESTOPPEL.

1. A bailee of a team with which to do teaming has no apparent authority to sell it so as to transfer title against his bailor.

2. An owner is not estopped, by a failure to promptly disaffirm a tortious sale of his property by a bailee, from recovering it from a subsequent vendee, he having no knowledge of an intent on the part of the bailee's vendee to further dispose of it.

Error to Circuit Court, Baraga County; Albert T. Streeter, Judge.

Action by Edward Nichols and another against Victor Monjeau. Judgment for plaintiffs, and defendant appeals. Affirmed.

C. F. Button, for appellant. Ira E. Randall, for appellees.

MONTGOMERY, J. Plaintiffs owned a team of horses. They intrusted them to a teamster, named Baker, to take into the lumber woods, and do teaming. Near the end of the season Baker sold the team of horses to one Conley. Conley kept the horses until about the 1st of April; then sold

1. See Bailment, vol. 6, Cent. Dig. § 28.

shows that, while they learned that the team had been sold very shortly after the sale took place, they did not find out who purchased them until in May or June. Early in July they saw defendant, and made a demand for the team, which being refused, this action of replevin was brought. On the trial the circuit judge directed a verdict for the plaintiffs. Defendant brings error.

Baker, having no title, could pass none. Trudo v. Anderson, 10 Mich. 357, 81 Am. Dec. 795. The doctrine of apparent authority has no application to such a case, as the case cited rules that a bailee of property has not the apparent authority to sell, and devest the true owner of his property.

Defendant's counsel requested the court to charge the jury that, if the plaintiffs knew that the team had been sold shortly after the sale took place, and failed to disaffirm the sale, they would be estopped from now asserting title as against the defendant, who purchased at a later time. There was testimony on the part of the defendant tending to show an admission of the plaintiffs that they knew, shortly after Conley bought the team, that the team had been sold to him, and the question presented is whether the failure to take prompt action to recover the team estops them. The plaintiffs are not shown to have had any knowledge of any purpose of Conley to transfer the team. They simply delayed bringing an action against him, which they were entitled to do. The case is unlike the cases cited by defendant's counsel wherein the doctrine of estoppel was applied to one who has a duty to speak, knowing that his silence will result in another placing himself in a different position. Unless the mere fact that plaintiffs knew of Conley's possession called upon them to proceed at once to assert their rights by replevin, there could be no room for the doctrine of estoppel. We do not think this is the rule.

The direction was proper, and the judgment will be affirmed, with costs. The other Justices concurred.

DETROIT FIRE & MARINE INS. CO. v. HARTZ et al., Board of Assessors.

(Supreme Court of Michigan. March 30, 1903.) ΤΑΧΑΤΙON-INSURANCE-DEDUCTION OF DEBTS -COMPUTATION OF PERSONALTY-REINSURANCE FUND-MANDAMUS. 1. Comp. Laws, § 3834, relative to taxation, provides that in computing the taxable property of insurance companies the value of its real estate shall be deducted from its net assets above liabilities, and the remainder shall be the amount of personalty for which it shall be assessed. Held to indicate an intention to tax the property of insurance companies, and not a design to impose a franchise tax.

2. Comp. Laws, § 3831, subd. 6, provides that personal property, for the purpose of taxation, shall include credits over the amount owed by the taxpayer. Section 3842 declares that, in

debtedness shall be deducted from the value of its personalty. Section 5169 establishes a reinsurance reserve, the object of which is that the company may have the means to reinsure its risks if necessary. Held, that the amount of an insurance company's reserve is not to be deducted as a liability, notwithstanding the fact that it is treated by the company as a liability for the purposes of bookkeeping, and that the policies of the company are subject to cancellation, and unearned premiums may be demandable by the insured.

3. Where, in mandamus by an insurance company to compel a reduction of its assessment for taxes, it appears that the amount of its reinsurance reserve has been erroneously treated as a liability, and that it is of greater value than the bonds which it claims have been erroneously treated as an asset, the writ will not issue.

Certiorari to Circuit Court, Wayne County; George S. Hosmer, Morse Rohnert, Robert E. Frazer, and William L. Carpenter, Judges. Mandamus by the Detroit Fire & Marine Insurance Company against John C. Hartz and others to compel a reduction of relator's assessment for taxation. Judgment denying the writ, and relator brings certiorari. Affirmed.

Moore & Goff, for appellant. P. J. M. Hally (Timothy E. Tarsney, of counsel), for respondents.

HOOKER, C. J. The relator is an insurance company. The law under which it is taxed reads as follows: "In computing the taxable property of insurance companies organized under the laws of this state, the value of the real property on which the company pays taxes shall be deducted from its net assets above liabilities as determined and shown by the last report of the Commissioner of Insurance, and the remainder shall be the amount of personal property for which the company shall be assessed." Comp. Laws, § 3834.

The report of the Commissioner, upon which the assessment complained of was based, shows an excess of assets over liabilities of $1,076,643.09. Of the assets, $368,878.84 consisted of real estate, and $120,389 of United States bonds, while in the liabilities was an item of $241,727.72 for "amount required to reinsure outstanding risks." Section 3834 clearly indicates an intention to tax the property of insurance companies, not a design to impose a franchise tax. It provides a way in which the value of their personal property may be ascertained by the assessor, and the validity of the rule was sustained in Mich. Mutual Life Ins. Co. v. Hartz (Mich.) 88 N. W. 405. In this case the assessor has followed the direction of the law.

It may be contended that the law has adopted this as the method most likely to result in getting at a fair valuation of the personal property of such a company, and that no inquiry can be made into the character of the personal estate whereby any portion of it can be deducted from the asrepresenting the United States bonds, he was equally at fault in deducting as an indebtedness the item of $241,727.72.

The grounds on which it is asserted that this is an indebtedness, to be deducted in accordance with the provisions of Comp. Laws, § 3831, subd. 6, and Comp. Laws, §§ 3832, 3842, are: First that it is treated as a liability by the company and Insurance Commissioner, for the purposes of bookkeeping, and a financial report, which is perhaps proper enough; and, second, for the reason that the policies of the company are subject to cancellation, and unearned premiums may in that event be demandable by the assured. Neither one of these justifies such an assertion.

The fund called the "reserve fund" is the property of the company. For the purpose of protection to patrons of the company, the law requires it to be kept in a fund called a "reinsurance reserve fund," so that the company may have the means to reinsure its risks if necessary, which it is given power to do, but its character is not changed on that account. See Comp. Laws, § 5169. It is not a debt in any ordinary acceptation of the term, nor is it under the terms of section 3832. It cannot be called a "bona fide indebtedness owing by the taxpayer," such as is mentioned in subdivision 5 of said section.

Again, it is true that upon cancellation of a policy the company must refund a part of the premium unearned. It has contracted so to do upon that contingency. The premium paid has become the property of the company, however, and we may take judicial notice that only a part of it will ever be paid back to the insured upon cancellation. It is a remotely contingent liability, but cannot be dignified by the name "bona fide indebtedness due or to become due," which is the term used in the statute to describe such exemptions. So that, in any view of this case, relator is not entitled to relief. The writ of mandamus is a discretionary writ. The court should not use it to compel the reduction of the assessment to the amount of the United States bonds, if it is true that more than that amount has already been deducted as credits.

The order of the circuit court is affirmed. The other Justices concurred.

transfer of the personalty assessed shall divest or destroy such lien, a chattel mortgage executed prior to the attaching of a tax lien is superior thereto.

2. Even if a receiver in a chattel mortgage foreclosure has an assessable interest in the property, he cannot be made to pay a tax levied against the owner.

Appeal from Circuit Court, Wayne County, in Chancery; Joseph W. Donovan, Judge.

Suit by James W. Baldwin and another against W. J. Gould & Co. and another, in which John Ballantyne was appointed receiver. From a decree for petitioner on petition by Thomas M. Lucking, receiver of taxes, to compel payment of certain taxes by Ballantyne as receiver, the latter appeals. Reversed.

Henry B. Graves, for appellant. Timothy E. Tarsney (John W. McGrath, of counsel), for appellee.

CARPENTER, J. Defendant Ballantyne, the receiver in the above-entitled cause, asks this court to set aside a decree rendered by the court below, compelling him to pay the petitioner, the receiver of taxes of Detroit, $1,714.14 for city taxes assessed against the defendant corporation, W. J. Gould & Co., as the owner of the receivership property. The facts are as follows: On February 28, 1902, W. J. Gould & Co. executed and delivered to said Ballantyne, as trustee, a mortgage upon its stock of goods and other personal property, situated in the city of Detroit, to secure the payment of the aggregate amount of $84,740, owing to a number of its creditors. March 1, 1902, said Ballantyne was appointed receiver of the property covered by said mortgage in this suit, instituted for the purpose of its foreclosure. Until July 12, 1902, said mortgaged property was sold in the ordinary course of trade. The balance undisposed of was sold in a lump at that time. The property covered by the chattel mortgage is insufficient to pay all the debts secured thereby. The assessment for the taxes in question was made against W. J. Gould & Co. It is insisted that the decree of the court below can be sustained on two grounds: (1) That the lien created by the law for the payment of taxes is superior to the lien created by the chattel mortgage under which the receiver holds; (2) that the assessment may stand as an assessment against the receiver.

1. The lien for taxes is given by section 10 of chapter 10 of the charter of the city of Detroit (see Act No. 472, p. 714, Loc. Acts

TYNE.

(Supreme Court of Michigan. March 30, 1903.) CITY TAXES-PERSONALTY-TAX LIEN-PRIOR CHATTEL MORTGAGE-PRIORITIES - ASSESSMENT AGAINST OWNER-LIABILITY OF RECEIVER.

1. Under Loc. Acts 1901, No. 472, p. 714, constituting the Detroit city charter, and providing (chapter 10, § 10) that all city taxes on person

upon personal property shall be and remain a lien thereon until paid, and no transfer of the personal property assessed shall operate to divest or destroy such lien." It is not necessary to decide whether the tax lien attached April 1st, when the property was listed for assessment, or July 1st, when the tax roll was placed in the hands of the receiver for collection. See Eaton v. Chesebrough, 82 Mich. 214, 46 N. W. 365. The mortgage was given several weeks, at least, before the tax lien attached. The question, then, is, does the language of the section above quoted make the lien for taxes superior to liens existing when such tax lien takes effect? Clearly, nothing in the language of the statute would lead to any such conclusion. The provision, "no transfer of the personal property assessed shall operate to divest or destroy such lien," unquestionably refers to transfers made after the lien attaches. It does not apply to transfers made before. Such transfers might prevent the lien attaching, but by no possibility could they "divest or destroy" it. The Legislature having in express terms made this tax lien superior to subsequent transfers, clearly indicates, by omitting to specify its effect on prior transfers, an intent that it shall not be superior to them. The argument that the tax lien under consideration is superior to prior liens and transfers, because a tax lien on said land is superior to such transfers, assumes a resemblance between taxes on land and taxes on personalty which does not exist. In the case of a tax on land it may be stated as a general proposition that the land, and not the owner, is taxed. Purchasers and all persons interested in land understand this, and must pay the taxes as a condition of enjoying their property. It is otherwise with personal property. There the tax is against the person, because he owns personal property. It has always been the policy of the law-supposedly in the interest of trade-to make personal property easily transferable, and to secure to purchasers and mortgagees the entire title of the seller and mortgagor. It would be a radical change, indeed, in that policy, if their title is to be destroyed by a tax subsequently assessed against the person from whom that title was acquired. When the Legislature intend to make such a change, it is to be presumed that they will indicate that intent by appropriate language. By the legislation in question they have not only failed to indicate it, but they have, as already stated, used language which is inconsistent with any such intent.

Is the tax to be treated as a tax assessed against the receiver? It is obvious, and it is distinctly contended by petitioner, that W. J. Gould & Co., notwithstanding the mortgage and appointment of the receiver, had a taxable interest in this property. It is obvious, too, that each of the creditors secured by the mortgage in question was liable to taxation for his credit secured by said mortgage. This record does not indicate, nor are we to presume, that such taxes were not paid. If it is also true (and this is a proposition which we by no means affirm) that the receiver was liable to taxation as the owner of an interest in said property, it is sufficient to say that he was under no obligation to pay the tax assessed against W. J. Gould & Co.

The decree of the court below must be reversed, and the petition dismissed. The other Justices concurred.

BAUER v. AMERICAN CAR & FOUNDRY

CO.

(Supreme Court of Michigan. March 30, 1903.) MASTER AND SERVANT - MACHINERY - DEFECTS-ASSUMPTION OF RISK-KNOWLEDGE OF ASSISTANT FOREMAN-PREVIOUS ACCIDENT.

1. Plaintiff was injured by the fall of an air hoist suspended from a horizontal track. The wheels on which the hoist ran had a flange on each side, but there was nothing to prevent the hoist from being detached by any force lifting the same. The fall by which plaintiff was injured was caused by a fellow servant's failure to change the pressure on the air after using the hoist. Plaintiff had been in defendant's employ for five weeks, during which time he had operated the hoist from 15 to 16 times a day, and had noticed that the wheel only hung on one side of the track. Held, that the risk of the fall of the hoist was one which plaintiff assumed.

2. The knowledge of a master's assistant foreman that an air hoist had previously fallen by reason of its insecure attachment to the track on which it was operated, is not imputable to the master, so as to require the master to warn a servant, having no knowledge thereof, of the danger incident thereto.

3. The fact that an air hoist had fallen by reason of the negligence of a servant in operating the same did not of itself charge the owner with knowledge thereof, so as to require a warning to servants of the danger incident

thereto.

Error to Circuit Court, Wayne County; George S. Hosmer, Judge.

Action by John Bauer against the American Car & Foundry Company. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Keena & Lightner (Wells, Angell, Boynton & McMillan, of counsel), for appellant. Washington I. Robinson, for appellee.

CARPENTER, J. In the court below, plaintiff recovered a verdict and judgment for injuries resulting from the fall of an air hoist while he was in defendant's employ. This air hoist was an appliance used for lifting and moving heavy iron beams. It weighed about 500 pounds. The power by which it was operated was compressed air. It was suspended from a horizontal track, about 12 feet above the floor. It consisted of a cylinder and a piston moving therein. The length of this cylinder was five or six feet. By regulating the pressure of compressed air in said cylinder by means of a lever, the workman operating the same raised or lowered said piston. Suspended from said piston was a hook, which, by being attached to chains on said beams, raised or lowered them at the will of the workman operating the hoist. It follows from the above description that said piston, when at the bottom of said cylinder, almost touched the floor. To enable the beams handled by