its covenants retained as far as applicable to the life estate. McClellan v. Cross et al.,

693

2. It is immaterial, in such a case, what estate A. really had in the land when her conveyance was made.

Ibid.

ERROR. See JUDGMENT (F.)

ESTATES. See EJECTMENT, 6.

ESTOPPEL. See EXEMPTION, 3. PARTITION, 2. RES ADJUDICATA, 1.

EVIDENCE.

See ADVERSE POSSESSION, 1-3, 5. CONTRACTS, 16, 19 (2), 21 (2). CORPORATIONS (B.), 18, 22 (2), 23-27. COURT AND JURY. FORCIBLE ENTRY, etc., 1, 2. HIGHWAYS, 4. MILL DAMS, 6. NATURALIZATION. NEW TRIAL, 3. QUO WARRANTO, 1. SLANDER, etc., 5-12, 18-27. VARI

ANCE.

1. Congress may prescribe the manner in which copies of the records of any department of the federal government may be authenticated. McLane v. Bovee,

27

2. A certificate of the commissioner of the general land office, signed by him and sealed with his official seal, attached to what purported to be copies of certain records of said office, and stating that "the annexed copies are true and literal exemplifications from the records and files of this office," held to be sufficient to render such copies admissible in evidence in the courts of this state. Laws of U. S., 1812, ch. 68 (2 U. S. Stats. at Large, p. 716). Ibid.

8. The minutes taken by a justice of the peace, of testimony taken on a trial before him, are not independent evidence on a new trial in the circuit court, but may be used as memoranda in the manner pointed out in Schettler v. Jones, 20 Wis., 412, 417, and Riggs v. Weise, 24 id., 545; [i. e., by the justice as a witness in the case, testifying positively that such minutes were made according to the truth of the facts, though the facts therein stated do not remain in his memory.] Peterson v. Knoble,

80

4. The admission or rejection of certain testimony as to collateral issues, held to be within the discretion of the court. Langton v. Hagerty, 150 5. In an action against a husband for necessaries furnished to his wife, the latter is a competent witness to prove acts of the husband by which he turned her out of the house under such circumstances as to make him liable for necessaries so furnished. Bach v. Parmely, 238 6. Whether the husband's liability in such case be placed upon the ground of an implied agency of the wife to contract in his name for such necessaries, or simply upon his duty growing out of the marital relation, it furnishes a necessary exception to the general rule that a wife cannot be a witness for or against her husband. Ibid. 7. Possession of property, unexplained, or not shown to be held in subordination to the rights of another, is prima facie evidence of title in the possessor. Wausau Boom Co. v. Plumer,

274

8. Plaintiff being shown in the actual possession and use of certain booms, etc., when it contracted for the storage of defendant's logs, the fact that defendant had been owner, in common with others, of said prop erty at the time plaintiff received its charter (secs. 20-23 of said char ter) does not rebut the presumption of ownership arising out of plaintiff's possession. Ibid.

9. The bill of exceptions in a cause, purporting to contain all the testimony given at the trial, is competent evidence, and the best evidence, to show what testimony was given; and after the death of a witness, his testimony, as preserved in such bill of exceptions, may be read at a subsequent trial of the cause, as evidence of the facts therein stated. Wilson v. Noonan,

321 10. A witness, on cross examination, having testified that he had written certain letters, was not permitted to state their contents. In the absence of proof of any effort to procure the letters themselves, it seems, that there was no error in ruling out secondary evidence of the contents. Zimmerman et al. v. Fairbank, 368

11. If such ruling was erroneous, the error was cured by the subsequent introduction of the letters in evidence. Ibid.

12. One of the plaintiffs having testified, on cross examination, that at a certain time plaintiffs employed one S. as their attorney-at-law in the matter of the chattels which are the subject of this action, was asked by defendant why he employed such attorney at that time, the question being put for the purpose of showing that S. was employed to collect plaintiffs' claim for said chattels, not from the defendant, but from one X. Held, that as the question did not call for anything said or done by the plaintiffs, but only for a motive or mental process, it was properly ruled out. Ibid.

13. The issue being, whether said chattels were delivered by plaintiffs to defendant or to X. (for sale on commission), the same witness was asked by defendant on cross examination, whether plaintiffs had at any time heard that X. had failed; but the question was ruled out. Held, that if the object was to discredit the witness by showing that plaintiff's had a motive for seeking to hold defendant liable instead of X., perhaps it was within the discretion of the court to admit the question; but there was no error in rejecting it. Ibid.

14. There was no error in permitting plaintiffs to put in evidence what purported to be an account stated between the parties, after testimony had been given tending to show that the items thereof had been separated from the original account by defendant's direction, and that the account offered was looked over and examined by him. Ibid.

15. A witness for plaintiffs, on his direct examination, being asked to whom plaintiffs sold the chattels in question, replied that on a certain occasion (two years after said sale or delivery and a few months before this action was commenced), plaintiff's told him that they sold the property to the defendant. Held, that the testimony was not re sponsive to the question, and should have been rejected. But this court, being of opinion that such testimony could not have affected the minds of the jury, will not reverse the judgment for the error in admitting it. Ibid.

16. The court rejected evidence offered by defendant to show that certain of the chattels in question had been sold by X. on credit, to persons who afterwards became insolvent and had not paid for the property,

and that such sales were made in good faith, under a belief that the purchasers were pecuniarily responsible. The jury having found that the chattels in dispute were delivered by plaintiffs to the defendant (and not to X.) to be sold on commission, and that defendant refused, on demand, to account to plaintiffs for them, or denied his responsibility for them: Held, that the rejection of such evidence cannot be regarded as error. Defendant's liability for the property became fixed by his refusal to account for it on demand; and it was too late to offer to account therefor on the trial. Ibid. 17. The bond of a railroad company, dated June 1, 1856, running to M. or bearer, for the payment of $500 on June 1, 1866, contained a clause assigning, as security therefor, to the holder of the bond, a note and mortgage which are described as "a certain note for $500 executed by S. P., together with a mortgage given collateral to and for the purpose of securing the payment of the same, dated the fifth day of April, 1857, payable in ten years from and after the first day of June, 1856, with interest at the rate of eight per cent. per annum, which said note and mortgage are hereto appended, and are transferable in connection with this bond, to any parties or purchasers whomsoever, and not otherwise." In foreclosure of a mortgage claimed to have been transferred to plaintiff with such bond and the note therein mentioned, plaintiff produced on the trial three papers attached together by a ribbon, viz.: (1) The bond in question. (2) A note corresponding to that described in the bond, except that it was payable at the expiration of ten years from the first day of June, 1857." (3) A mortgage executed to secure said note, and expressly conditioned for the payment of $500 "in ten years from the first day of June, 1857." Held, that the assignment in the bond did not, by its terms, transfer to the holder of such bond the note and mortgage produced in evidence. Andrews v. Powers and wife,

644

18. Had the assignment stated the time when, and the volume and page where, the mortgage intended to be assigned was recorded, and did these agree with the mortgage in evidence, the court might say, perhaps, that the latter mortgage was identified with sufficient certainty, and was transferred by the terms of the bond, notwithstanding the discrepancies in the description Paine v. Benton, 32 Wis., 491. But in this case the description does not show with sufficient certainty that the note and mortgage offered were intended by the assignment. Ibid. 19. If an assignment of this note and mortgage to M. or bearer, or to the holder of the bond, had been shown, possession of the instruments would be prima facie evidence of ownership. Ibid. 20. But the note being payable to the railroad company or order, and not being indorsed, and the note and mortgage not being assigned by the terms of the bond, mere possession of them is not sufficient evidence of plaintiff's ownership to sustain an action upon them.

Ibid.

21. If there is a mistake in the description of the note and mortgage found in the bond, and those offered in evidence were intended to be described therein, plaintiff (claiming ownership by virtue of such assignment) should aver and prove those facts. The case distinguished from Reeve v. Fraker, 32 Wis., 243, where there was a general averment, in the complaint, of plaintiff's ownership of the instruments sued upon. Ibid.

22. As plaintiff claimed only under the assignment in the bond, and this

did not show her to be the owner of the note and mortgage offered with it, and she refused to amend her complaint so as to aver a mistake in the assignment, the court did not err in dismissing the complaint. Ibid.

or,

23. Where the action was in form against both the debtor and his coreceiptbut process was not served upon the debtor and he did not appear, quære, whether his wife was a competent witness for the other defendant, or whether her husband would be so far bound by the judgment, under secs. 168, 169, ch. 120, R. S. (Tay. Stats., 1388, §§ 184, 185), as to make her incompetent. Heath v. Keyes, imp.,

EXECUTION. See EXEMPTION, 1, 2. WILLS, 2.

EXEMPLIFICATION OF RECORDS. See EVIDENCE, 2.

668

EXEMPTION.

1. Our statute providing for the exemption of the property of debtors is to be liberally construed. Heath v. Keyes, imp., 668

2. Among the articles of property exempted by said statute are enumerated "all beds, bedsteads and bedding kept and used for the debtor and his family." (R. S., ch. 134, sec. 32, subd. 6). Levy having been made upon property of a debtor described as "two feather beds, four quilts, four feather pillows and two cherry bedsteads," and it appear. ing that, when levied upon, such articles were kept for and actually used by the debtor and his family: Held, that they were exempt, and the fact that the debtor had other beds, etc., not levied on, was immaterial, unless it was shown affirmatively that the number was greater than was necessary or convenient for the use or comfort of himself and family. Ibid.

3. The act of the debtor and another person, in receipting to the sheriff for the articles so levied upon, which were thus retained in the debtor's possession, did not constitute a waiver of the exemption, nor estop him and his coreceiptor from setting up such exemption as a defense, in an action by the sheriff on the receipt; it appearing that the property was claimed as exempt at the time of the levy, and no facts being shown which would make it a fraud upon the law to still insist upon such claim. Ibid.

FEES. See OFFICER, 5, 7.

FELONY. See CRIMINAL LAW, etc., 12, 13.

FORCIBLE OR UNLAWFUL ENTRY AND DETAINER.

1. The parties to the action had had negotiations about the purchase and sale of a dwelling house belonging to plaintiff and in his possession, but there had been no sale or delivery of possession to defendant. The house was vacant, the doors and windows were fastened in the usual manner, and plaintiff had the key, which he refused to deliver to defendant. The latter then made an entry into the house, after

dark, by forcing open a window which was fastened, after trying to get through the back door. As soon as plaintiff discovered that de. fendant was in possession (with his family and household goods), which was a day or two after such entry, he ordered him out, and threatened to send an officer to put him out; but defendant refused to leave the house; and thereupon this action was brought, under the statute "Of forcible entry and unlawful detainer" (R. S., ch. 151). Held, that upon the facts stated the jury might have found that defendant broke into the house with some degree of force, intending to hold possession by force; and the action would lie. Ainsworth v. Barry, 136

2. The jury having been instructed that if defendant did not himself use force to effect his entrance, but entered through a door opened by his wife, he was not chargeable in this form of action, the exclusion of the wife, as a witness in defendant's behalf, to show in what manner she entered the house, is not error. Ibid.

FRAUD.

See CONTRACTS, 7, 8. EXEMPTION, 3.

1. Conveyances of property, and other transactions and agreements, made for the purpose of defrauding creditors, are nevertheless binding upon the parties themselves and their personal representatives. Dietrich o. Koch et al.,

618

2. In 1856, C. D. and wife conveyed certain lands to L. D. and K., by warranty deed; and, to secure payment of part of the purchase money, the grantees executed to C. D. their bond and a mortgage of the premises for $14,000, payable July 1, 1866, with interest at 12 per cent. Afterwards K. absconded from the United States, being indebted to L. D. in a considerable amount. L. D. then employed attorneys to foreclose said mortgage for the nonpayment of certain installments of interest thereon, "for the sole purpose of clearing said land from the interest of said K. therein, and for the purpose of being able to hold it against any creditor of K. who might attach it or otherwise attempt to satisfy his debt out of it;" and an action of foreclosure was accordingly commenced in the name of C. D. against L. D. and K., and judgment of foreclosure and sale taken in 1862, for a debt of over $12,000 then due; and the land was bid off at the sale, for $1,000, and judgment for over $11,000 deficiency entered against L. D. and K. While said action was pending, L. D., fearing that some creditor of K., or some person in his behalf, might bid off said land for more than was due on the mortgage, and thus create a surplus, a portion of which would go to K. or his creditors, caused an action to be commenced, in 1863, in the name of C. D., against said L. D. and K., "for the recovery of a sum of money said to have been loaned by C. D. to L. D. and K. before that time," in which action judgment was rendered against the two defendants named, for over $2,300. Both these judgments were entered at the instance and expense of L. D., and for his benefit, to give him a clear title to said real estate, C. D. merely consenting to the use of his name therein. Afterwards the land first named was conveyed to C. D. as purchaser at the foreclosure sale; and by a subsequent arrangement it was reconveyed by him to L. D., upon the conditions named in the conveyance, as a full settlement of all claims and demands between C. Ď.