determined in the first action. Various considerations other than the actual merits may govern a party in bringing forward grounds of recovery or defense in one action which may not exist in another action upon a different demand, such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and his own situation at the time. A party acting upon considerations like these ought not to be precluded from contesting, in a subsequent action, other demands arising out of the same transaction. A judgment by default only admits, for the purpose of the action, the legality of the demand or claim in suit; it does not make the allegations of the declaration or complaint evidence in an action upon a different claim. The declaration may contain different statements of the cause of action in different counts. It could hardly be pretended that a judgment by default in such a case would make the several statements evidence in any other proceeding."

He quotes the language of Mr. Justice Willes, as follows:

"It is quite right that a defendant should be estopped from setting up in the same action a defense which he might have pleaded, but has chosen to let the proper time go by. But nobody ever heard of a defendant being precluded from setting up a defense in a second action because he did not avail himself of the opportunity of setting it up in the first action. I think we should do wrong to favor the introduction of this new device into the law."

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Mr. Justice Byles said:

"It is plain that there is no authority for saying that the defendant is precluded from setting up this defense."

Mr. Justice Keating said:

"This is an attempt on the part of the plaintiff to extend the doctrine of estoppel far beyond what any of the authorities warrant."

These cases seem to vindicate the right of a defendant to allow judgment to go by default, or to make such

defense as he may choose. If he suffer judgment by default, he is not estopped, in a subsequent action for another demand, from making any defense; and in other cases he is estopped only to the extent of the defenses made to the first action.

It appearing that the pleadings in the former suit were broad enough to cover the defenses now sought to be raised, and that no evidence was offered tending to show whether they were litigated and decided or not, we may next inquire, upon whom is the burden of proof? Must the plaintiffs show that these defenses were actually made and passed upon, or will it be presumed that all questions that could be raised under the pleadings were decided? We think it was not for the defendant to prove the negative. The plaintiffs relied upon an estoppel, and it was incumbent upon them to show the facts necessary to constitute the estoppel. Wells, Res. Adj. § 215; Lawrence v. Hunt, 10 Wend. 85. Until they did so, the defense was good; and, if the existence of the estoppel was a question of fact for the jury, the defendant should have been allowed to introduce his evidence tending to show a release. If the jury found the estoppel, they would disregard the evidence of the release; but, as it could not be known in advance how they might find upon that question, the court should have admitted the testimony.

It follows that the judgment must be reversed, and a new trial ordered.

The other Justices concurred.

LOUIS J. LIESEMER V. JOHN BURG AND LULU A. LIESEMER.

Trust deed-Setting aside-Evidence.

1. It cannot be said that the omission of the grantor to require a bond from the trustee named in the deed of trust is an unusual omission, and it is optional with the grantor to require it or not.

2. The fact that the friendly relations existing between the grantor and trustee at the time of the execution of the deed have changed to those of unfriendliness will not, of itself, justify the annulling of the deed,

3. The sole question in this case is whether the complainant was or was not in such a state of mind when he signed the trust deed, which he seeks to set aside, as to understand fully the import and effect of the instrument. And it is held that there is not found in the record evidence to warrant the granting of the relief prayed.

Appeal from Washtenaw. (Kinne, J.) Submitted on briefs June 23, 1894. Decided September 25, 1894.

Bill to set aside a trust deed. Defendant Burg appeals. Decree reversed, and bill dismissed. The facts are stated

in the opinion.

John F. Lawrence (E. B. Norris, of counsel), for complainant.

A. J. Sawyer (F. E. Jones, of counsel,) for appellant.

HOOKER, J. We concur in the statement of complain

ant's counsel that

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The sole question in this case is, was Louis J. Liesemer in such a state of mind, at the time he signed the trust deed, as to fully understand the import and effect of the instrument which he executed?"

The complainant has for many years been the owner of a newspaper in the city of Ann Arbor, in the editing and managing of which his late wife, Emma Liesemer, took part. They had one child, a daughter of five or six years. The mother died on September 26, 1888, and at the time of her death was the owner of property to the amount of $2,200. She left no will. On September 28, 1888, being the day before the burial of his wife, complainant executed and delivered to John Burg, one of the defendants, an instrument in writing under seal, duly acknowledged, whereby he assigned to Burg his interest in the estate of his former wife, and a certain mortgage and accompanying note for $3,000. The writing provided that Burg and his successors, which successors might be appointed by the proper court upon Burg's request and application, should hold the property assigned, "upon trust and confidence, to keep said money safely invested for the benefit" of said daughter until she should become 20 years of age, at which time she should become entitled to it in her own right. It provided for its use for her necessities, and that in case of her death it should go to her issue, if she left any surviving; if not, it was to revert to the complainant. The trust was accepted by Burg in writing at the bottom of the assignment. The mortgage and note, and a formal assignment thereof, were delivered with the writing aforesaid to Burg. Subsequently complainant claims to have demanded the return of the property assigned, and finally, some two years later, filed this bill to set the assignment aside, asserting that it was obtained by undue influence, at a time when he was mentally unable to understand the force and effect of the writing. The daughter was made. defendant, and answers by guardian ad litem. Her answer alleges that the assignment rests in and is founded upon no covenant by Burg to execute the provisions and directions of the trust, and that he has not bound himself to

do so, and that no precautions or safeguards were provided by the assignment. It further alleges, on information and belief, that Burg has not accounted to the circuit or probate court, and expresses fears that he will refuse to account to her, and deprive her of her rights under the same. She prays for an accounting and other relief. Otherwise she submits her rights and interests to the court.

Burg and complainant married sisters, were intimate. friends as long as Mrs. Liesemer lived, and the former aided complainant in various ways, such as assisting him to increase the circulation of his paper and loaning money for him, and possibly in some other ways. The circuit judge granted the relief prayed, though he practically required the complainant to pay Burg for his services in holding and investing the fund, and for his just and reasonable expenses in the defense of the suit, by allowing them from the property. He expressed confidence in the integrity of purpose of defendant.

We think that the testimony does not warrant the conclusion that the complainant was incompetent to make this disposition of a portion of his property. Doubtless he was grieved over the loss of his wife, and it is quite probable that he experienced a very tender solicitude for the welfare of his motherless child. He testifies that defendant took advantage of the situation to further his own interests, but, in our opinion, the great preponderance of testimony tends to show that Burg did not suggest or insist upon the arrangement, and we find no reason for saying that he designed to convert the property to his own use. The fact that no bond was required is suggestive of danger of loss, but it cannot be said that this was an unusual omission, and it was optional with complainant to require it or not. Nor can the determination depend upon expediency. It may be unfortunate that the relations of the parties. have changed, but that fact does not justify the annulling