Mandamus. Argued October 24, 1893. Granted November 24, 1893.

Relator applied for mandamus to compel respondent to vacate an order dismissing an appeal from probate court. The facts are stated in the opinion.

L. S. Montague and D. Shields, for relator.
William P. Van Winkle, for respondent.

GRANT, J. The writ of mandamus is asked to compel the respondent to vacate an order dismissing the appeal of the relator from a decree of the probate court, made November 26, 1892, disallowing the last will and testament of Alonzo Gorton, deceased. All the proceedings to take such appeal were regular, and made in due time, and notice thereof was duly served upon the contestants, and proof of such service filed in the probate court December 3. The probate judge was paid for making the return, and one of relator's attorneys makes affidavit that the probate judge promised to return the papers to the circuit court; but it appears from the answer of the respondent that, upon the hearing of the motion to dismiss, an affidavit from the probate judge was presented, denying this. The case was noticed for trial at the two following terms, but was either not reached or was continued by consent. March 31, 1893, the attorney for contestants noticed the case for trial for the following term. After this, the motion to dismiss the appeal was made. Before the motion came on for hearing, the appeal papers were filed in the circuit court.

This case clearly comes under the rule of Snyder v. Circuit Judge, 80 Mich. 511. While Act No. 174, Laws of 1887, was held mandatory in Merriman v. Circuit Judge, 95 Mich. 277, it was not intended to overrule Snyder v.

Circuit Judge, nor to hold that the failure to perfect the appeal within the time might not be waived. On the contrary, the distinction between the two cases was pointed out.

Writ granted.

The other Justices concurred.

WILLIAM COACH V. ALLEN C. ADSIT, CIRCUIT JUDGE OF
KENT COUNTY.

Equity pleading-Cross-bill-Default.

1. A cross-bill proper may be taken as confessed, in which case the allegations of the bill are taken as true; citing 2 Barb. Ch. Pr. 135.

2. Chancery Rule No. 123 gives a defendant all of the benefits of a cross-bill upon an answer containing the proper averments and prayer, and was intended to supplant the practice of filing a formal cross-bill by a simpler method; citing Hackley v. Mack, 60 Mich. 591.

3. A replication to an answer by which the defendant claims the benefit of a cross-bill under Chancery Rule No. 123 puts the original case as made by bill and answer at issue, while those averments which are properly in the answer only as the basis of a cross-bill, under the rule, must be answered specifically, according to the usual practice.

Mandamus. Argued October 31, 1893. Granted November 24, 1893.

Relator applied for mandamus to compel respondent to vacate an order setting aside a default. The facts are

stated in the opinion.

Chadbourne & Rees and Fletcher & Wanty, for relator.

Wesselius, Corbitt & Ewing, for respondent.

HOOKER, C. J. Defendant, having filed an answer in which he claimed the right to affirmative relief as though upon a cross-bill, entered the default of the complainant for his failure to file an answer to the new facts set up in defendant's answer upon which the claim to affirmative relief was asked, a replication in the usual form only having been filed. This default having been set aside upon motion, defendant asks a mandamus requiring the circuit judge to vacate his order, it being contended that the replication is not a sufficient denial of the matter set up in the answer.

Chancery Rule No. 123 was intended to supplant the practice of filing a formal cross-bill by a simpler method. To that end it was provided that a person might have all the benefits of a cross-bill upon an answer containing the proper averments and prayer. There is nothing in the rule that deprives the complainant of the right to answer (Hackley v. Mack, 60 Mich. 591); and we think it may also be said that there is nothing in the rule to deprive the defendant of the benefit of an answer, the same as though a cross-bill had been filed. The general replication, while technically a denial of the truth of the answer, is a formal paper, intended to complete an issue. But it cannot properly take the place of an answer. A cross-bill proper may be taken as confessed, in which case the allegations of such bill are taken as true. 2 Barb. Ch. Pr. 135. We think the same practice proper in case of an answer claiming the benefits of a cross-bill. In such case the replication puts the original case as made by bill and answer at issue, while those averments which are properly in the answer only as the basis of a cross-claim, under the rule, must be answered specifically, according to the usual practice. Complainant's default was therefore properly entered, and the order vacating the same, and striking the

papers on which said order pro confesso was based from the files, should be vacated. A writ of mandamus requiring this will issue, without costs.

It is not intended hereby to foreclose the right of the complainant to apply for, and the court to grant, an order setting aside the order pro confesso upon a proper showing, if such relief shall be within the proper discretion of the court.

The other Justices concurred.

GEORGE ROUSER V. THE NORTH PARK STREET RAILWAY
COMPANY.

Carriers-Ejection of passenger-Fragment of ticket.

A passenger, on paying the required fare, was entitled to trans-
portation over the lines of two street railway companies. For
the purposes of this traffic, a ticket of a peculiar color and
print was used, consisting of two parts, separated by a perfo-
rated line. The lower part contained the evidence of the pas-
senger's right to ride over the road of the company to which
the fare was paid, and it was the duty of its conductor to
deliver to the passenger the upper part of the ticket, which
contained the evidence of his right to ride over the other road.
By mistake, the conductor so separated the parts as to leave
a portion of the upper part upon the lower part of the ticket,
and delivered the remainder of the upper part of the ticket to
the passenger.
The conductor on the other road refused to
accept this fragment, and, on the refusal of the passenger
to pay his fare, ejected him from the car. And it is held, as
a matter of law, that the conductor was bound to know that
the fragment was a portion of a genuine ticket used upon his
line, which, if whole, would have entitled the passenger to a
ride over said line.1

1 See Van Dusan v. Railway Co., 97 Mich. 439.

97 565 $56NW 937 130 487n

Error to Kent. (Adsit, J.) Argued November 2, 1893. Decided November 24, 1893.

Case. Defendant brings error.

Affirmed. The facts are

stated in the opinion.

More & Wilson, for appellant.

Henry J. Felker, for plaintiff.

HOOKER, C. J. The defendant is a street-railway company in Grand Rapids. On July 16, 1890, the plaintiff and a companion boarded a car upon the Valley City Street & Cable Railway Company's road, and each paid the conductor seven cents fare, which, under existing contracts between such railway company and the defendant, entitled them to a continuous ride over both lines. The conductor took two coupon tickets, hereinafter described, and, putting them together, tore them in two, keeping the lower portions, and handing the upper parts to the passengers. In tearing these tickets, through carelessness, the conductor took, not only the coupon belonging to his road, but with it about one-third of the upper coupon, which constituted the only evidence of plaintiff's right to ride over the defendant's road. The conductor of the defendant refused to accept these mutilated coupons, and required the plaintiff to get off from the car, which he did, although he had money, and might have paid his fare had he been so disposed. He recovered a judgment of $25 in justice's court, and $1 in the circuit, where the case was tried upon appeal. The defendant now brings the case to this Court.

The record contains a sample of the ticket, as printed; also, the mutilated coupon in question. The complete ticket consisted of two coupons printed upon a single sheet, and separated by a perforated line, each coupon designed to be taken by the conductor of the proper road. The upper