the Grand Rapids & Indiana. A Y is constructed for the use of both roads. Within the Y are situated the freight house and sheds used by both roads. The track of the Y, connecting the two roads, is on the north and west sides. of the freight house. Near this track, and opposite the freight house, is a raised platform, the edge of which is from 2 feet 3 inches to 2 feet 5 inches from the outside of a freight car. This side track and platform were used mainly for interchange traffic between the two roads. It was not customary to use it for local freight trains. The unloading there was done in the same manner, but with a shorter gang plank. Plaintiff insists that it was the duty of the defendant to run its local freights onto this Y when it had heavy packages to unload, but admits that it was customary and proper to unload lighter packages from the main track. The defendant's assistant superintendent testified that the side track was not used for conducting business that would naturally be done by the local freight train. The only other act of negligence alleged is that the gang plank was not supplied with hooks, spikes, or cleats to hold it from slipping.

At the conclusion of the evidence the court directed a verdict for the defendant, holding that the plaintiff had not established a cause of action.

The ruling was correct, for the following reasons:

1. No negligence was established against the defendant. Gang planks of the same character had been used by the defendant for 15 years, and no accident had before occurred in their use. It cannot be said, as a matter of law, that it was negligence to use such a tool. While a greater degree of precaution might have suggested the propriety of using hooks or spikes which would render an accident less likely to occur, still experience had not shown any necessity therefor, nor is it apparent that there is any danger in the use of a plank with a beveled edge 6 or 8 inches in

length, lying level with the platform and the car, the end of which may rest from 20 to 40 inches within the car from which the goods are to be taken. Plaintiff says that the end of the plank lay in the car about 8 inches. Defendant was using an appliance which long experience had shown to be safe. The law did not require it to do more. 2. Plaintiff voluntarily assumed the risk. He was an old and experienced railroad employé. He had been engaged upon this same train for nearly a year. The business was done in the same manner that it had always been done before. He was familiar with it. All the dangers connected with it were as apparent to him as to any one. The loads were not of such size or weight as to indicate any extraordinary risk or hazard in removing them in the usual way. It is too apparent to require argument that if the end of the gang plank had been placed a proper distance within the car, and proper care had been exercised in pulling the truck upon the plank, the accident would have been avoided. He had unloaded 12 similar loads in safety. Why did the accident happen upon the removal of the thirteenth? There must have been some reason which did not exist when any of the other 12 loads were removed. If the plank had gradually worked towards the edge of the car when each load was removed, or if plaintiff failed to place it a proper distance within the car at the beginning, these were matters over which he had the entirecontrol, and the exercise of common prudence on his part. would have prevented the injury.

3. The plaintiff had used this gang plank, and similar ones, during his service. He had raised no objection or protest, nor had he even suggested that they were unsafe, or requested that they be fixed with hooks, spikes, or cleats. The law is too well settled to require the citation of authorities that where one uses uses a tool or appliance so simple in construction as this, without protest or objection,.

he cannot be heard to complain of an injury incurred while he is using it in the ordinary manner.

4. If it was negligence not to place the car upon the side track for unloading, or to direct the plaintiff to remove packages so heavy as to be unsafe for conveyance over the plank, these were the negligent acts of the conductor under whose direction the work was done, and were the acts of a fellow-servant. It may, however, be very properly remarked that the propriety of unloading these packages at the place, and with the appliances, was not raised either by the plaintiff or his fellow workmen.

Judgment affirmed.

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

WILLIAM HAKE V. WILLIAM E. GROVE, CIRCUIT JUDGE OF KENT COUNTY.

Practice in circuit court-Appearance-Default.

1. Circuit Court Rule No. 24, which provides that pleas in abatement or to the jurisdiction, and all other dilatory pleas, shall be filed within 10 days after filing and service of declaration, applies only to cases commenced by original writ.

2. Under How. Stat. § 7291, which authorizes the commencement of suits by declaration, the defendant may interpose any plea within the 20 days provided by the statute for pleading.

Mandamus. Submitted February 20, 1894. Denied February 27, 1894.

Relator applied for mandamus to compel respondent to

vacate an order setting aside a default. The facts are stated in the opinion.

Wesselius, Corbitt & Ewing, for relator.

Fletcher & Wanty and Chadbourne & Rees, for respondent.

GRANT, J. The relator commenced a suit in the circuit court for the county of Kent by filing declaration and entering rule to plead. The declaration was served November 27. December 14, defendant appeared and filed a plea to the jurisdiction of the court. Plaintiff ignored this plea, and entered defendant's default for non-appearance. The court, upon motion, set the default aside. Plaintiff now invokes the writ of mandamus to compel the vacation of this order. He relies upon Circuit Court Rule

No. 24, which provides that

"Pleas in abatement or to the jurisdiction, and all other dilatory pleas, shall be filed without any rule for a special or general special imparlance, within ten days after filing and service of declaration."

The commencement of suit by filing declaration and entering rule to plead is statutory, and the defendant is required to plead within 20 days after service of a copy thereof, with notice of the rule. Rule 24 was not intended to interfere with this provision of the statute, which clearly gives the right to a defendant to interpose any plea within 20 days. The rule applies only to cases which are commenced by original writs. Wyandotte Rolling Mills Co. v. Robinson, 34 Mich. 428.

Writ denied.

The other Justices concurred.

CHARLES K. BACKUS V. MILTON E. CARLETON, TREAS-
URER OF WAYNE COUNTY.

County treasurers-Fees-Tax certificates.

The duty imposed upon county treasurers by section 135 of the tax law of 1893 to furnish a certificate showing whether there are any tax liens or titles held by the State or any individual against the land described in a deed or other instrument, and that all taxes due thereon have been paid for the five years preceding the date of such instrument, comes within the scope of their official duties, and, while its imposition may be a proper subject for consideration by the proper authorities in providing needed assistance and fixing compensation for the future, they have no legal right to demand extra compensation for its performance.

Certiorari to Wayne. (Hosmer, J.) Argued February 20, 1894. Decided February 27, 1894.

Relator applied to the circuit judge for mandamus to compel the respondent to issue to him a tax certificate under section 135, Act No. 206, Laws of 1893, without compensation therefor. Respondent brings certiorari to review the order granting the writ. Affirmed. The facts are stated in the opinion.

Henry A. Chaney, for relator.

Frank D. Andrus and Henry M. Duffield, for respondent.

MCGRATH, C. J. The sole question raised is as to the right of the county treasurer of Wayne county to exact a fee for a certificate, under section 135 of the general tax law of 1893 (Act No. 206).

.

As was said in Van Husan v. Heames, 96 Mich. 504, the evident purpose of this section is to secure the collec