Matthews and wife vs. The Town of Baraboo.

Had the question of variance been raised on the trial, by objection to evidence of the rut, it would have been the duty of the court below to have permitted the respondents to make the amendment before verdict, which was actually made after verdict. Fobes v. School Dist., 10 Wis., 117; and numerous other cases cited by DIXON, C. J., in note to Brayton v. Jones, 5 Wis., 627.

The question of variance, not having been raised on the trial, was waived by the appellant, and cannot be raised after verdict. Gee v. Swain, 12 Wis., 450; Gardinier v. Kellogg, 14 id., 605; Mead v. Bagnall, 15 id., 162; and numerous other cases cited in the note to Brayton v. Jones; Flanders v. Cottrill, 36 Wis., 564. And this disposes of the exceptions to the charge of the court below founded upon the variance.

It is apparent that, had the complaint not been amended after verdict, the judgment could not have been reversed for the variance. The amendment therefore worked no injury to the appellant. It was purely formal. And whatever might have been the affect of the affidavit of surprise, if made upon amendment during trial, it was too late after verdict for any purpose, except as an appeal to the discretion of the court below, on the motion for a new trial.

It appears that, at the locus in quo, the worked and traveled part of the road was wide enough for three or four teams abreast; and the jury was instructed, in substance, that the town was liable only for defects in the worked and traveled part, but was liable for defects anywhere in that. This was undoubtedly correct. Kelley v. Fond du Lac, 31 Wis., 179; Cremer v. Portland, 36 id., 99. But the appellant claims that there was evidence tending to show two ruts or gullies; one in the traveled roadway, and another on the side of the road which might be considered outside of the traveled part; and that the wagon in which the female respondent was riding, meeting another team, turned to the left contrary to the law of the road, thus encountering the gully on the roadside,

Matthews and wife vs. The Town of Baraboo.

and so causing the accident. We are able to discover no evidence showing that the wagon went out of the traveled part of the road. And if both ruts or gullies were in that part, it is immaterial in law which caused the injury. But it is sufficient to say that the appellant asked for no instruction on that point; and that, under the charge of the court, the jury must have found that at the time of the accident, the wagon was in the traveled part of the road, and the driver was guilty of no contributory negligence.

The merits of that question were presumably passed upon by the court below in refusing a new trial. And the order, in such a case, will not be reviewed in this court. Van Doran v. Armstrong, 28 Wis., 236.

By the Court.—The judgment of the court below is affirmed.

INDEX.

ABATEMENT OF ACTION.

See ADMINISTRATORS, etc., 2. DIVORCE, 12-14.

ACCOUNT STATED.

See EVIDENCE, 2.

ACTION.

(A.) Cause of Action.

See BANKRUPTCY. COMMON CARRIER, 1, 4, 5.
11, 12. CONVERSION, 3-5. COUNTERCLAIM, 2, 3.
INJUNCTION, 3. NEGLIGENCE, 1, 2. _ PLEADING, 2.
SPECIFIC PERFORMANCE. TOWN TREASURER, 2-7.
PURCHASER.

(B.) Who may bring Action.

See ADMINISTRATORS, etc. EXEMPTION.

(C.) Various Actions.

In Supreme Court, pp. 79, 271.

Against the State, on Contract, pp. 79, 271.
Against City.

Damages for change of grade, p. 360.

Damages to land from city improvements, p. 409.

Against County.

To recover amount paid for tax certificates, p. 444.

Against County Board of Supervisors.

CONTRACTS, 5-8,
EXEMPTION, 3.
RAILROADS, 1–3.
VENDOR AND

To compel (by mandamus) admission of plaintiff as member of board,
p. 596.

Against Town. Injuries from Defective Highway, p. 674.

Against Estate of Decedent.

1. Appeal from order of distribution. Claim under bequest to wife,
p. 96.

2. On alleged promissory note of the intestate, p. 370.
3. Claim of wages by infant, p. 376.

4. By foreign executors, p. 414.

Against Town Treasurer, etc., on Bond, pp. 328, 468, 529.
Against Receiptor for Goods seized in Execution, p. 339.
Against Sheriff, for Goods seized in Execution, p. 570.

Against Railroad Company.

1. For wages of laborer in construction of road, under contractor, p.
426.

2. For value of goods destroyed by fire in depot, p. 449.

3. For personal injuries to passenger, p. 636.

Against Insurer.

1. Marine insurance, p. 88.

2. Insurance on cattle, p. 104.

3. Fire insurance, pp. 111, 121, 489.

4. Life insurance, p. 397.

Against Husband for Necessaries furnished Wife, p. 432.
Against one adjudged a Bankrupt, p. 124.

For Value of Labor and Materials, pp. 62, 507, 585.

For Price of Machinery made to order, p. 247.

For Balance of Account, pp. 173, 314.

For Commission as Real Estate Broker, p. 419.

For Personal Services of Plaintiff and Wife, p. 553.

For Breach of Contract to receive Supplies, p. 562.

For Failure to deliver according to Contract, pp. 533, 578.

For Refusal to accept Delivery, p. 669.

On Promissory Note, pp. 68, 124, 138, 290, 300.

On Bill of Exchange, p. 520.

On Foreign Judgment, p. 614.
On Land Contract, p. 334.

On Claim for Tolls, p. 525.

To recover Possession of Real Property, pp. 182, 188, 345, 462, 538, 600.

To recover Possession of Personal Property, pp. 260, 456, 476, 570.

To recover Damages for a Conversion of Personal Property, pp. 35, 499, 515.
For Personal Injuries, pp. 75, 558.

For Injuries to Property, from Negligence, pp. 129, 552.

For Flowage of Land, p. 384.

For Libel, p. 481.

For Divorce, pp. 165, 166, 167, 308, 651.

To Foreclose Land Contract, p. 141.

Against Vendor in Land Contract, after Foreclosure of Purchaser's Equi-

ty, by Assignee of Purchase-Money Note. Trust, p. 492.

To Foreclose Mortgage, pp. 146, 219, 296, 512.

For Specific Performance, p. 364.

For Dissolution of Partnership, p. 252.

To Restrain City from destroying Plaintiff's Fruit and Ornamental Trees,
etc., p. 160.

To Restrain Defendants from Digging and Mining on Plaintiff's Land, p.
317.

To Restrain Collection of Judgment, p. 590.

To Avoid Effect of Judgment, or for a Subrogation, p. 643.

Equitable Counterclaim in Action on Foreign Judgment, p. 614.

ADMINISTRATORS AND EXECUTORS.

64

1. Under the statute authorizing a foreign executor or administrator of the
estate of a person not a resident of this state at the time of his death, to
prosecute actions here in behalf of such estate, upon filing an au-
thenticated copy of his appointment in the probate court of any county
of this state" (Tay. Stats., 1720, § 25), the disability of such executor,
etc., to sue before such filing is mere disability, and not want of title.
Smith et al., Ex'rs, v. Peckham, Ex'trix,
414

2. Before the letters testamentary, etc., are filed here, such disability can be
taken advantage of, by answer, only by way of abatement.
Ibid.
3. A mere disability to sue, not going to the right of action, may be cured
pendente lite; and queere whether (under R. S., ch. 125, sec. 40) a judg-
ment on the merits would be reversible for such disability, even where
the objection had been seasonably taken, and overruled.

Ibid.
4. An objection in probate court to a claim against an estate on the ground
that it was "outlawed and illegal and void for usury," held, not to
raise the question of the disability of the claimants.
Ibid.
5. On appeal from an order allowing such claim, it appeared from the
formal complaint of the claimants in the circuit court, that their
foreign letters testamentary of the estate in whose behalf the claim was
made, were first filed after the appeal. Held, on demurrer, that the
complaint was not bad for that reason.
Ibid.

6. The proper jurisdiction for the probate of a will is that of the testator's
domicile at death; and the complaint herein not showing the residence
of plaintiff's testatrix at her death, an order overruling a demurrer
thereto is reversed with directions to allow an amendment of the com-
plaint.
Ibid.

ADVERSE POSSESSION.

See DEED, 1. LIMITATION OF ACTIONS, 2, 4.

1. Secs. 6 and 7, ch. 138, R. S., relating to adverse possession under paper
title, must be considered together as one entire provision; the former
giving the general rule, and the latter defining certain particular con-
ditions of such adverse possession. Pepper et al. v. O'Dowd,

538

2. Under these sections, actual adverse possession of part of a single lot or of
a known farm does not operate as constructive adverse possession beyond
the limits of such lot or farm, even where it is part of a more extensive
tract included in the instrument or judgment under which the occupant
entered.
Ibid.

3. Subds. 3 and 4 of sec. 7 are independent of each other, and under the
former, actual possession of part of an uninclosed lot by its use for fuel
or fencing for the ordinary use of the occupant, will probably, under
proper circumstances, operate as constructive adverse possession of the
whole lot; but, under the limitation of sec. 6, it can in no case so ope-
rate beyond the limits of the same lot.
Ibid.

4. Being independent, both subdivisions cannot support the same possession
of the same premises; and an ambiguous possession claimed in part un-
der each, and not supported by either alone, is not within the statute.