edness is due for labor and services performed by plaintiff for the defend-
ant in and about cooking for men driving pine logs," etc., and does not
otherwise show that it was "due upon contract, express or implied."
Held, sufficient under Tay. Stats., 1769-70, §§ 28, 33. Blackwood v.
Jones, 27 Wis., 498, distinguished.
Ibid.

6. The affidavit for the attachment (under the act of 1862, as amended) showing
that the petition for a lien upon the logs in dispute was duly filed in the
office of the clerk of the circuit court of the proper county (viz., that in
which the services were rendered, and in which the logs remained until
seized on the attachment), it is not necessary to state that it was recorded
in the office of the lumber inspector for the proper district; and it seems
that such recording is not essential to the validity of the lien. Ibid.

LIFE INSURANCE.

See INSURANCE (C.).

LIMITATION OF ACTIONS

See ADVERSE POSSESSION. DIVORCE, 16, 17. TAX CERTIFICATES, 2, 3.
1. The "disability" which prevented the statute of limitations upon actions
for the recovery of real property from running in cases of infancy, insan-
ity, imprisonment and coverture, by the law of this state found as sec.
13, ch. 138, R. S. (but now repealed by ch. 44, Laws of 1872), did not
necessarily mean an "incapacity to do a legal act," but related also to
the condition of a party subject to legal "duress," or to the control and
protection of other persons; and such disability still existed in the case of
a married woman (before the act of 1872), notwithstanding the statute
concerning the "rights of married women (Laws of 1850, ch. 44; Tay.
Stats., 1195), which gave to a wife the absolute control of her separate
estate the same as though she were unmarried, and notwithstanding sec.
15, ch. 122, R. S., which permitted her to sue alone in respect to such
estate. Wiesner v. Zaun,
188

2. If plaintiff had been an unmarried woman at the time of the death of ten-
ant by the curtesy, in 1857, she being then of age, and the defendant or
his grantor being in actual adverse possession of the whole land under
the deed of such tenant, her rights would have been barred by the stat-
ute in 1867. But she being then and ever since a married woman, the
statute did not commence to run against her until ch. 44, Laws of 1872,
took effect.
Ibid.

3. Where a claim against a county, barred by the statute of limitations, was
rejected by the supervisors without any statement of the grounds of re-
jection, there was no abuse of discretion in permitting the supervisors to
file an answer setting up the statute, on an appeal to the circuit court
from their decision. Baker v. Super's of Columbia Co.,
444

4. In case of an adverse possession of land, when the statute of limitations be-
gins to run against the ancestor, it will continue to run against the heir,
although he is under the disability of infancy when the right accrues to
him. R. S., ch. 138, sec. 13. Swearingen v. Robertson,

LIQUIDATED DAMAGES OR PENALTY?

See BOND, 1.

462

LIS PENDENS.

1. In case of a suit in equity to have certain conveyances held for mortgages only, and certain others held void, notice of lis pendens was filed, stating the parties and the nature of the suit, enumerating the several conveyances involved, and describing the land conveyed by each conveyance. Held, that if the notice had stopped there, it would have been a sufficient compliance with the statute (R. S., ch. 134, sec. 7). Watson v. Wilcox, 643

2. The notice, however, adds a conclusion, stating that "the following real estate is intended to be affected" by the action, and thereupon gives a wrong description, substituting, by a clerical error, the word north for south, and so describes lands not included in said conveyances. Held, that this needless and false conclusion does not vitiate the notice. Spraggon v. McGreer, 14 Wis., 439, distinguished. Ibid.

MARRIED WOMAN.

See LIMITATION OF ACTIONS, 1, 2.

MARSHALLING OF SECURITIES.

See FORECLOSURE OF MORTGAGE, 4.

MINES-MINING LEASES.

1. A mining lease of an exclusive right to mine upon the "Watkins range or works on the lessor's land, held to convey a right not only to mine on the said range as far as it had been actually opened and worked, but also to follow it to the limits of said land. Sobey et al. v. Thomas et al., 317 2. Such lease, however, did not convey the exclusive right to work a vein on another portion of said tract, between which and the former no connection exists within the said tract, although, since the lease, a connection between them has been traced, by a circuitous course, through adjoining land of another person; and this conclusion is not affected by the fact that the ores in the "Watkins range are in a horizontal seam. Ibid.

3. The statutes governing the rights of miners (ch. 260 of 1860, and ch. 117 of 1872) apply only where there is no contract fixing the rights of the parties; and sec. 3 of the earlier act (as amended by sec. 2 of the later) gives the lessees in this case no right not included in their lease as here construed.

MISJOINDER.

See INJUNCTION, 2 (2).

MORTGAGE.

Ibid.

See FORECLOSURE OF MORTGAGE. JUDGMENT (E.), I, 1. SUBROGATION.

NAVIGABLE RIVERS.

See HIGHWAYS, 1.

NEGLIGENCE.

See BILLS AND NOTES, 6.

1. The general rule is, that a party cannot recover for an injury of which his
own negligence was in whole or in part the proximate cause. Whether
McCall v. Chamberlain, 13 Wis., 637, creates an exception to this rule,
and whether the doctrine of that case would be followed by this court in
a similar case, are questions not here determined. Pitzner v. Shinnick,
129

2. Under sec. 32, ch. 119, Laws of 1872, which declares that any person who
shall open bars or gates on a railroad farm crossing, and not immediately
close the same, shall be liable to the party injured for all damages re-
sulting from such act, one whose cattle have escaped upon a railroad
through such open bars or gate, and have there been killed by a train,
cannot recover from the person by whose fault such bars or gate were
left open, if he had negligently suffered the cattle to escape from his own
premises to the farm of another, on which such railroad crossing is situate.
Ibid.

3. Questions of negligence are for the jury, unless the proof is conclusive; and
upon the evidence in this case it was error to nonsuit the plaintiff on the
ground that he was guilty of contributory negligence.
Ibid.

NEW TRIAL.

1. On reversing a judgment in replevin for the plaintiff, the value of the
property not having been determined on the trial, and not being ascer-
tainable from the record here, the cause is remanded for a new trial.
Winslow et al. v. Urquhart,

260

328

2. The record not showing the amount for which defendant is liable, this
court, on reversing a judgment in his favor, rendered on a trial without
a jury, remands the case for a new trial. Stahl v. O'Malley et al.,
3. The question in this case having arisen entirely on the findings of the trial
court, and the evidence not being before this court, the judgment for the
plaintiff is reversed, and the cause remanded with a suggestion that the
circuit court grant a new trial, if satisfied that justice would thereby be
promoted, but that otherwise it dismiss the complaint. Pike v. Vaughn
et al.,

499

4. In reversing so much of the judgment herein as declares the judgment
sued upon to be satisfied to the extent of the $4,100 paid by F. on his
said contract, and enjoins plaintiffs from seeking to collect that amount,
this court directs the trial court to permit an amendment of the answer
by inserting therein an equitable counterclaim founded on the contract
between F. and plaintiffs, and the subsequent payments thereon, and
upon such amendment, made within a reasonable time, to award a new
trial; otherwise, to render judgment for plaintiffs for the amount of the
judgment in suit, less $6,500. Stowell et al. v. Eldred,
614

NON JUDEX.

See CONSTITUTIONAL LAW, 9-13.

NONSUIT.

See APPEAL (C.), 12. INSURANCE (A.), 1. NEGLIGENCE, 3.

NOTICE.

1. Of Pendency of Action.

See LIS PENDENS.

2. Of Incumbrances.

See SALES (A.), 1.

3. Of Option, on default.

See BOND, 2. CONTRACTS, 12 (1).

OFFICER.

See ATTORNEYS-AT-LAW, 6, 7. CONSTITUTIONAL LAW, 3-5. TOWN TREAS-

URER.

1. The receiptor of property seized on process is not liable to the officer for
nondelivery of the property to him on demand, unless the officer is liable
to some one for his failure to hold or sell the property on his process; and
this doctrine is applicable where such property belongs to the receiptor.
Perry v. Williams,

339
2. Under circumstances which estop the receiptor to deny his liability to the
officer for the property covered by the receipt, the officer is liable to ac-
count to the creditor for such property.

Ibid.

3. If the receiptor conceals from the officer his ownership and suffers the
goods to be seized as property of the defendant (thus preventing, per-
haps, a levy upon other property), he is estopped from claiming the
goods as his own when sued on the receipt; but where the receipt does
not admit that the defendant in the process is owner of the goods, and
the receiptor at the time asserts ownership in himself, he is not estopped
from setting up such ownership as a bar to an action upon the receipt.
Ibid.

OFFICER DE FACTO.

See CONSTITUTIONAL LAW, 12. CORPORATIONS (A.), 1.

1. As a general rule, so far as the partners and creditors of a firm are con-
cerned, real estate of the partnership is in equity deemed mere person-

alty; and in case of a dissolution, it is often decreed to be sold, as a
proper method of ascertaining its value and making an equal distribu-
tion of the partnership effects. Pierce et al. v. Covert, imp.,

252

2. But where partners have taken title to real estate as tenants in common,
and all debts due to third persons and between themselves have been dis-
charged, and an equal distribution of the assets can be made without a
sale of the real estate, such a sale need not be ordered on a dissolution,
unless it appears that such an order would be most beneficial to the part-
Ibid.

ners.

3. In this action for the dissolution of a partnership, it appeared that the as-
sets in money, notes and accounts were much more than sufficient to pay
all debts, and that title to real estate of the firm had been taken by the
partners in their individual names as tenants in common; that one of the
partners was dead, and his personal representatives, heirs and widow are
made parties to the action; and that another of the partners had con-
veyed his undivided third of the real property, to one G. C., not a mem-
ber of the firm, who is made defendant. The complaint alleges that the
real estate cannot be divided without great prejudice to the owners, but
there is no pretense that a sale is necessary for an equal distribution of
the assets. Held, that the court erred in ordering G. C. to convey his
undivided one-third of the real property to the receiver appointed in the
action.
Ibid.

4. An action for the dissolution of a partnership and a settlement of its
affairs should not be complicated by proceedings therein for the partition
of real property.
Ibid.

PENALTY OR Liquidated DamAGES?

See BOND, 1.

PLACE OF TRIAL.

See CHANGE OF VENUE.

PLEADING.

See ADMINISTRATORS, etc., 2, 5, 6. AMENDMENT OF PLEADING. COSTS, 3.
COUNTERCLAIM. DIVORCE, 12-15, 17, 18, 21. EJECTMENT, 1-3. LI-
BEL, 1. LIMITATION OF ACTIONS, 3. VARIANCE. WAIVER, 2.

1. Under the statute, a counterclaim in the answer is a pleading to the com-
plaint; and where the latter discloses want of jurisdiction, or fails to
state a cause of action, a demurrer to a counterclaim goes back to the
complaint. Lawe v. Hyde,
345

2. A husband is not liable for necessaries furnished his wife without his con-
sent, except under special circumstances. Brown v. Worden,
432

3. In an action against the husband, therefore, a complaint which merely
alleges that the plaintiff furnished necessaries to the wife at her request,
and that their value "thereupon became due" from defendant to plaint-
iff, without stating the special circumstances which made him liable, is
insufficient on demurrer ore tenus at the trial.
Ibid.