to complainants, created between the time when the first affidavit of renewal had expired and the second was filed, did not have priority over said mortgage; that Hanson, in taking possession under and foreclosing his chattel mortgage, was not required to comply with the so-called "Bulk Sale" act of 1905, and that any rights complainants might have are enforceable under appropriate legal proceedings in an action at law. As a foundation for defendants' chief argument it is assumed that Hanson was proceeding to foreclose his chattel mortgage, and took possession of the property for that purpose under authority of the mortgage, which the bill does not allege and complainants' counsel refuse to concede, saying:

"This is an allegation of fact, and will sustain proof, either that the groceries and fixtures were voluntarily turned over, or that Mr. Brink permitted Mr. Hanson to peaceably take possession."

The bill, on the contrary, distinctly alleges, not that Hanson demanded and took possession for foreclosure purposes, but that Brink transferred all of his stock of groceries and fixtures to him otherwise than in the ordinary course of trade, etc., in violation of the sales in bulk act and in fraud of complainants' rights. So far as shown by the bill, the stock of goods might have been worth several times the amount secured by the chattel mortgage and bought outright, in bulk, by Hanson at Brink's solicitation. What concessions, if any, in variance of allegations in the bill, were made before the trial court, is not disclosed by the record before us, but it appears that the demurrer was sustained on the theory that a chattel mortgage foreclosure was shown, the court saying:

"I can see much difficulty in trying to work out this act as applying to a person who holds a chattel mortgage, and I can't see how the court is going to do it. * * * Under this sales in bulk act if he is buying this property, then he can compel Mr. Brink to give

him a list of creditors. But a man taking possession of property under a chattel mortgage never can comply with the act because he cannot compel a list of creditors. So that if you are going to say that that act compels a man taking possession under a chattel mortgage, I don't care whether his mortgage is valid as to creditors or not, why he never dares to take possession. He can't get a list of the creditors. That, coupled with the suggestion that I made to counsel during the arguments, compels me to believe that this act should not be held to apply to a case of this kind. But before we go into any question of proofs in the matter, I think we can get the matter decided if counsel desire to take it to the Supreme Court. * * An order will be prepared * ** sustaining the demurrer."

*

An order was thereupon entered sustaining the demurrer with costs, and subsequently said bill was dismissed.

Except as inferable from the opinion of the trial court, it is not made clear from the record and briefs before us that complainants contend the mortgagor, if he did no more than submit without resistance or protest to a legal demand, and only allowed the mortgagee to take possession of mortgaged property under a valid chattel mortgage and foreclose the same, would make a voluntary sale or transfer of such property in violation of the sales in bulk act, but the views of the trial court upon that proposition appear to be the controlling reason and only ground given for sustaining the demurrer.

While we are constrained to conclude that the bill of complaint cannot, upon its face, be construed as alleging only an attempted foreclosure, in view of the condition of this record upon that question, it may be said, in overruling the demurrer, that we are well satisfied a regular foreclosure of a valid chattel mortgage, though it results in a sale of the property to realize the indebtedness secured thereby, is not a voluntary sale, transfer, or assignment as contemplated

by the provisions of said Act No. 223, Pub. Acts 1905. In the present state of the record upon this demurrer, we deem it premature to consider the various other questions raised in briefs of counsel, which are not shown to have been passed upon by the trial court, and which may or may not be controlling, or important under the proofs. As before stated, the value of this property alleged to have been transferred is not disclosed, and an outright voluntary sale or transfer of it by Brink to Hanson, conveying a complete title so that the latter could keep, sell, or otherwise dispose of it as his own, could well be held, under facts which might be proven, to require compliance with the act in question, and invalid if they were ignored, under such conditions as would entitle complainants to equitable interference even though Hanson may have held a valid chattel mortgage upon this stock for some amount which might or might not, according to the proofs, have been sufficient to cover the purchase price agreed upon.

The demurrer will be overruled, with costs to complainants, and defendants allowed 20 days within which to plead over as they may be advised.

Reversed.

BROOKE, C. J., and MCALVAY, KUHN, STONE, OSTRANDER, BIRD, and MOORE, JJ., concurred.

PRICE v. DELANO.

1. PROCESS-RAILROADS-RECEIVERS—AMENDMENT-PARTIES. In an action against the receivers of a railroad corporation, plaintiff's proposed amendment of the declaration so as to introduce the corporation as the party defendant in place of the receivers was properly denied, where the return of service showed that the declaration was delivered to a station agent of the railroad, and failed to show for what company or persons the agent was acting; the return was not sufficiently definite to warrant the amendment and the action of the court in declining to substitute the corporation as defendant was right.

2. SAME

JURISDICTION-GENERAL ISSUE-CONSENT.

An appearance and plea of the general issue in a cause naming as the defendants the receivers of a railroad corporation, and further stating that the defendants appeared by their attorney and demanded a trial, etc., was not a sufficient appearance for and in behalf of the railroad corporation, although correct and proper as to the receivers.

Error to Wayne; Gage, J., presiding. Submitted April 16, 1915. (Docket No. 143.) Decided June 14, 1915.

Case by Edward L. Price against Frederick A. Delano and others, as receivers of the Wabash Railroad Company, for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error. Affirmed.

Dohany & Dohany, for appellant.

Rufus G. Lathrop (Alexander L. Smith and Gustavus Ohlinger, of counsel), for appellees.

MOORE, J. Plaintiff was injured while in the employ of the Wabash Railroad Company in November, 1910.

187 Mich.-4.

The above named receivers were appointed in December, 1911. This suit was commenced in April, 1913. The declaration named the receivers as defendants, but counted upon a cause of action against the railroad company.

Upon the opening statement of counsel it appeared, as stated above, that the accident occurred prior to the appointment of the receivers. Counsel for defendant moved for a directed verdict on the ground that no recovery could be had against the receivers for injuries which were incurred prior to their appointment. It appearing to plaintiff's counsel that this was a correct statement of the law, he asked the trial court for permission to amend his declaration, and that the names of the receivers simply be treated as surplusage, and the cause proceed against the Wabash Railroad Company. This proposed amendment was denied, and a verdict directed. The case is brought here by writ of error. Counsel say the case is on all fours with Daly v. Blair, 183 Mich. 351 (150 N. W. 134), and that the amendment should have been permitted.

Counsel for appellees say that much stress was put in the opinion in Daly v. Blair, supra, upon the fact that the declaration was duly served upon the station agent of the railroad company, and deny that this was done in the instant case. It becomes important, then, to examine the return of service. It reads, omitting some formal parts:

"John A. Kokowicz, being duly sworn, deposes and says that on Saturday, the 12th day of April, A. D. 1913, at the city of Detroit, in said county of Wayne, he served a true copy of the within declaration on the Wabash Railroad by then and there, at the place and on the date above mentioned, delivering to Mr. Anthony Wolfschlager personally, city ticket agent, a true copy of said declaration."

It will be observed that the words used are "Wabash Railroad," instead of "Wabash Railroad Company."