all the evidence in the case, the rate of speed and the direction in which the engine was running at the time, the direction of the wind, the distance that the engine passed from where the fire was first discovered, the condition of the engine and its machinery, and its manner of operation in the vicinity of the land upon which the fire started, also the weather conditions, also the time when said engine went by and along said land, also the length of time that intervened between the passage of the engine and the discovery of the fire, and all other evidence in the case which throws any light upon any one of these questions; and after such consideration, if you should find that said fire was not started by a spark thrown upon plaintiff decedent's land by an engine operated by said defendant, then your verdict should be no cause of action. Or, if you should find that a spark from said engine set said fire upon the land of plaintiff's decedent, and that plaintiff's property was thereby destroyed, and you should further find that such spark was thrown from an engine whose machinery, smokestack or fire boxes were in good order and properly managed, then your verdict should be for the defendant. But if you should find that such loss or damage was caused by fire originating from a spark emitted from said engine at said time and place, and that the defendant has not shown to your satisfaction that said fire originated from a spark thrown by an engine, whose machinery, smokestack or fire boxes were in good order, and properly managed, then your verdict should be for the plaintiff. And when I speak of an engine here, I mean the engine testified to as a light engine that passed the mill, as shown by the testimony, a short time prior to the discovery of the fire."

That the court erred in charging the jury in the language contained in paragraph 12, which was as follows:

"Now, in this case, if the plaintiff is entitled to recover at all, he is entitled to recover a true cash value of the sawmill and storehouses and the other personal property being machinery, as testified to here, as they were on the premises at the time they were destroyed;

and in determining the value of the sawmill and storehouses and such personal property, you are to take into consideration all the facts connected with such property, such as its cost, its age, its condition, the uses to which it had been put, its location, and any other fact which, in your opinion, fixes or determines what its true cash value was at the time of the fire, excepting therefrom such property as you may find was saved from destruction by the fire. As to the lumber and products of the mill, if the plaintiff is entitled to recover, he is entitled to recover the fair market value of such lumber and products at the time and place of such fire. And when you have determined the amount of said damages, if you should find the plaintiff is entitled to any damages in this case, you should add thereto interest thereon, at the rate of five per cent. per annum from the date of the commencement of this suit, being December 11, 1895, and adding such interest to the amount of the damages found by you, the result would be your verdict herein, if you find in favor of the plaintiff."

And, finally, that the court erred in charging the jury, as matter of law, that this suit and cause were properly prosecuted here by the present administrator of said estate; and that the fact that the case had not been brought on for trial before did not, as a matter of law, bar plaintiff's right to recover.

The errors assigned are discussed by appellant under the following heads:

(1) The declaration fails to state a cause of action. (2) It was error to permit the plaintiff to amend his declaration by changing the allegation of the date of the fire from July 18, to July 17, 1895, for the reason that such amendment set up a new cause of action, barred by the statute of limitations.

(3) There was a fatal variance between the declaration and the proofs, in that the declaration alleged that the fire was caused by a locomotive drawing a freight train, while the proof showed that a light engine caused it, if it was caused by any locomotive, running on defendant's railroad.

(4) Plaintiff cannot maintain this suit because the cause of action had been assigned to Judith C. Sayre. (5) The right to prosecute the suit was abandoned, lost, through the long failure to prosecute. The statute of limitations is a complete defense.

(6) Interest was improperly allowed.

1. It is urged by counsel at great length that under our statute (2 Comp. Laws 1915, § 8305) a railroad's liability for a fire originating from its road is the common liability for setting fires, the effect of the statute being merely to shift the burden of proof, and the following cases are cited: Fisk v. Railroad Co., 114 Mich. 248; Dolph v. Railway Co., 149 Mich. 278; Pennsylvania Fire Ins. Co. v. Railroad Co., 184 Mich. 375; Beach v. Railroad Co., 190 Mich. 592; Schindler v. Railway Co., 77 Mich. 136. There are many quotations from the last cited case, and other cases are cited. It is also claimed that where a declaration wholly fails to state a cause of action, advantage may be taken of it on the trial, and Stoflet v. Marker, 34 Mich. 313, and other like cases are cited. Upon the subject of the date of the fire the language of this court in Hewitt v. Railroad Co., 171 Mich. 211 (41 L. R. A. [N. S.] 635), is quoted at length. Aside from the change in the date of the fire, attention is called to the fact that the time of day, when the fire occurred, is nowhere alleged.

It should be borne in mind that at the time the amended declaration was permitted and filed the judicature act was in effect, as well as Circuit Court Rule No. 22, § 1, which provides that:

* * * "No declaration shall be deemed insufficient, which shall contain such information as shall reasonably inform the defendant of the nature of the cause he is called upon to defend."

In Malloy v. Railway Co., 192 Mich. 344, at page 350, this court held that the purpose of the pleading is to enable the defendant to prepare his defense.

After the case was placed upon the calendar under the judicature act, defendant filed motions to dismiss, but no objection was made to the sufficiency of the declaration. That the declaration was not attacked was mentioned in the former decision of this court. (See page 420 of opinion.)

The fact that no demurrer was interposed, or motion made, and in view of the present liberal rule relating to pleadings, we cannot say that the declaration was insufficient. The language of this court in Jolman v. Alberts, 186 Mich. 643, at page 645, is pertinent here. There is no claim of surprise urged here in regard to the time of day of the fire-or with reference to the light engine. The record discloses that shortly after the fire the defendant took a written statement from Libbie Dumond Fowler which disclosed the hour of the fire and the westbound light engine, and, as already stated, plaintiff's attorney in opening the case on February 19, 1918, referred to those matters.

Under the statute the plaintiff must show by evidence which reasonably leads an unbiased mind to the conclusion that the particular engine caused the fire. Clark v. Railway Co., 149 Mich. 400 (12 Ann. Cas. 559); Hewitt v. Railroad Co., supra.

"The making of a prima facie case by simple proof of the setting of the fire arose out of the difficulty of a plaintiff to prove the defect, and from the fact that the construction, condition, and management of the engines are peculiarly, if not exclusively, within the knowledge of the company's employees." .Dolph v. Railway Co., supra.

2. Was it error to permit the plaintiff to amend his declaration by changing the allegation of the date of the fire from July 18, 1895, to July 17, 1895, for the reason that such amendment set up a new cause of action, barred by the statute of limitations? We

think not. A mere change in date does not introduce a new cause of action. Hapke v. Davidson, 180 Mich. 138, 148. In that case Justice KUHN, speaking for a unanimous court, said:

"The mere change in the date did not, in our judgment, introduce a new cause of action, and, under the rule announced in Pratt v. Montcalm Circuit Judge, 105 Mich. 499, unless this is the result, the amendment is proper. As stated in 1 Enc. Pl. & Prac., p. 564:

""The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony.""

See, also, the cases cited by Justice KUHN.

Here again the defendant was not surprised by the change of date. The record shows that on November 25, 1895, the defendant filed the affidavit of Lewis C. Stanley in the case, in which he stated, among other things, that "deponent is informed and believes that the actual wrong and injury to this place occurred on a different day than they named in said declaration." On October 18, 1916, the affidavit of George F. Dick was filed by the defendant, in which he stated that the fire occurred on July 17, 1895. These affidavits were before the court when the amendment was permitted. Hewitt v. Railroad Co., supra, cited by defendant upon the question of dates, is readily distinguished from the instant case.

3. We do not think there was a fatal variance between the declaration and the evidence for the reasons already stated.

4. Can the plaintiff maintain this suit, notwithstanding the assignment to Judith C. Sayre? There can be no question that this cause of action survived (3 Comp. Laws 1897, § 10117). Nor can there be any question that it was assignable. In the early case of Final v. Backus, 18 Mich. at page 231, Chief Justice COOLEY, speaking for the court, said: