craft statute. It is uncontradicted that complainant has taken no step since the making of the papers to indicate a waiver of a lien. This court has held that the giving of a note is not a waiver of the lien under this statute. Sarmiento v. The Catherine C., 110 Mich. 120-125 (67 N. W. 1085), and cases cited; Delaney Forge & Iron Co. v. The Winnebago, 142 Mich. 84-91 (105 N. W. 527, 113 Am. St. Rep. 566); 26 Cyc. p. 792.

We have held in cases of mechanics' liens that the retention of title is not inconsistent with the existence of the statutory lien. Warner Elevator Manfg. Co. v. Building & Loan Ass'n, 127 Mich. 323 (86 N. W. 828, 89 Am. St. Rep. 473), and cases cited. It was there said:

"But the authorities forbid the assumption that a reservation of title is inconsistent with the existence of a statutory lien, holding that there may be cumulative remedies, and consequently that absolute inseparability is not a condition to the existence of the statutory lien."

See, also, Kirkwood v. Hoxie, 95 Mich. 62, 66 (54 N. W. 720, 35 Am. St. Rep. 549).

In Peninsular General Electric Co. v. Norris, 100 Mich. 496 (59 N. W. 151), it was held that the fact that an electric company retained the title to an electric lighting plant, which it placed in a building, until it was paid for, would not deprive it of its statutory lien, or prevent the enforcement of the same— citing and quoting from Case Manfg. Co. v. Smith (C. C.), 40 Fed. 339, as follows:

"Instead of being inconsistent, it was merely additional security to that provided by the statute. It certainly does not establish, as matter of law, that, in thus retaining title to the machinery, complainant has waived its statutory lien upon the lot of ground or premises on which the machinery was placed.'

The above language it seems to us is as appropriate here as in the case of a mechanic's lien. See, also, Fuller v. Byrne, 102 Mich. 461 (60 N. W. 980); Pettyplace v. Manufacturing Co., 103 Mich. 155 (61 N. W. 266); Presque Isle Sash, etc., Co. v. Reichel, 179 Mich. 466 (146 N. W. 231). See, also, the case of D. B. Steelman (D. C.), 48 Fed. 580, where the party furnishing materials, took cash in part payment and notes secured by mortgage on one-half of the vessel. It was held that the mere fact of taking a mortgage did not operate as a waiver of the maritime lien, and authorities are cited. The Theodore Perry, Fed. Cas. No. 13,879; The Hilarity, Fed. Cas. No. 6,480.

In 26 Cyc. p. 791, it is said:

"A lien once vested may be lost in various ways. * * ** But the burden is on the party asserting such a waiver to prove it, as this would be a matter of defense."

The lien in water craft is intended for the same purpose as the lien of mechanics, to protect persons furnishing labor or materials. We are of opinion that retaining title, as in this case, was not a waiver of the lien.

3. It is urged, however, that here the credit was given to the individual and not to the vessel, and hence no lien attached. We are of opinion that this proposition was answered by this court in Delaney Forge & Iron Co. v. The Winnebago, supra. At page 91, 142 Mich. (at page 530 of 105 N. W., 113 Am. St. Rep. 566), Justice MCALVAY, speaking for the court, said:

"The distinction between maritime and nonmaritime liens must not be overlooked in this case. It cannot with accuracy be said that materials, furnished, as in this case, where a statute of the State gives a nonmaritime lien, are furnished upon the credit of the vessel. Such language is only exact where refer

ence is had to a maritime lien. The statutory lien attaches by operation of law, where the materials furnished are within the provisions of the statute. The lien attaches as an incident to the contract, and, unless such lien is waived, the provisions of the statute may be invoked for its enforcement."

It clearly appears in this case that complainant was to furnish, and did furnish, defendant with the marine engine in question to be used in this particular boat. Its name was afterwards changed from the "Eaglesfield" to the "Golden Girl;" of this there is no question.

It is also contended that complainant did not furnish materials for this vessel within the meaning of the statute; that he contracted to furnish one of his completed engines for a stated sum; that the engine when installed was not a part of the boat. We think that the case of Globe Iron Works v. The Steamer, 100 Mich. 583 (59 N. W. 247, 43 Am. St. Rep. 464), is a complete answer to this claim. We quote:

"This is a proceeding to enforce a lien under the water craft law of this State. * * * The claim is for one boiler and attachments, one smokestack and umbrella with attachments, furnished and used in the building, fitting, furnishing, and equipping of the steamer 'John B. Ketchum 2nd." "

The lien was enforced.

It should be stated that, during the trial below, the claim of Wm. Brummeler's Sons Company, intervening complainants, was adjusted and their claim dismissed. We are aware of the act of Congress of June 23, 1910 (36 U. S. Stat. 605), entitled "An act relating to liens on vessels for repairs, supplies, or other necessaries." By section 5 of that act it is provided:

"That this act shall supersede the provisions of all State statutes conferring liens on vessels in so far as the same purport to create rights of action to be

enforced by proceedings in rem against vessels for repairs, supplies, and other necessaries."

We do not understand that that act deprives the State court of jurisdiction to enforce a contract, for claim, on account of work done, or materials furnished, in or about the building, fitting, furnishing, or equipping of a boat during its construction, as in this case. Such claims and contracts are nonmaritime.

Upon the merits of the case, we are of opinion that the complainant has sustained the burden of proof. The defendant Elizabeth Eaglesfield, while complaining of defects in the engine, has not given us any basis upon which to estimate her damages. She gave no definite amount as to damages suffered, and she continued to use the engine down to the time of trial without complying with the conditions of the warranty.

We think the complainant has established his lien for the amount of the notes and the account of $42.65, and interest as above stated.

For the errors pointed out, the judgment of the court below must be reversed. By section 10827, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13663), it is provided that this court shall hear and determine the appeal, and shall have power to reverse, affirm, or modify the judgment or decree below, and to make such other order as shall be just. The record shows that the boat has been discharged by a statutory bond in the penal sum of $2,000, with Margaret M. Parsons as surety. Section 10815, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13651), provides that in case judgment or decree passes for complainant, in such case, the same shall be rendered and entered against the principal and surety in the bond.

Judgment will be entered in the court below for complainant for the amount of such notes and account above indicated against said defendant Elizabeth

Eaglesfield and said surety, with costs to be taxed, upon filing a certified copy of the order of this court as indicated by section 10828, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13664).

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

ANTOSZEWSKI v. CITY PLUMBING CO.

1. EQUITY-AMENDMENT-RESCISSION OF CONTRACT-DISCRETION TO PERMIT AMENDMENT.

It was within the discretion of the trial court upon the hearing to permit the amendment of complainant's bill so as to set up the alleged claim that defendant corporation had no property, or assets, in a suit to rescind a conveyance to the defendants on the ground of fraud, in the absence of any claim of surprise or request for continuance by the defendant.

2. SAME PRAYER OF BILL-MULTIFARIOUSNESS.

A bill of complaint in equity is not necessarily multifarious because it contains an alternative prayer where it seeks for an injunction against a corporation to prohibit it from disposing of certain assets received from complainant and also to set aside a conveyance of the homestead by complainant and his wife to the defendant on the ground of fraud.

Where all the parties were before the court and the subject matter of the suit was properly presented by the pleading and a decree could be entered adjusting the entire controversy as to all the parties in interest, though