Hunter vs. Bosworth and others, imp. their separate debt; but took the second mortgage in trust to apply the proceeds on the first mortgage, until that should be satisfied. Some minor questions were made, which are not properly before us, because there is no bill of exceptions. We have nothing here but the pleadings, the findings of fact, and conclusions of law. By the Court. The judgment of the court below is affirmed. On the 19th of March the appellants filed a motion for a rehearing, and submitted it on the 9th of April. The brief of Winfield Smith, filed in support of the motion, argues that, by former decisions in this state, adhered to in the foregoing opinion, the mortgage as to after-acquired goods created no lien, legal or equitable; that this is equivalent to saying that, whatever might have been the moral duty of the mortgagor, he owed the mortgagee no duty of legal or equitable cognizance, as to such goods; that it follows as a necessary corollary, that if a stranger to the first mortgage, with full notice of its existence and provisions, had taken a mortgage of the after-acquired property, he would have been protected as against the plaintiff; that this is for the reason that courts enforce those rights only which have a basis in law (whether technically called equitable or legal), and refuse to entertain claims based solely on moral obligations; that if appellants could not take a separate mortgage, it must be because of some legal or equitable (not merely moral) principle, which applies to them and not to a stranger; and that none of the cases cited in the foregoing opinion, when carefully examined, establish any such principle. Counsel further contended, 1. That the rule of equity asserted in those cases applies only to a claim by cotenants "to a common subject;" and this means a subject in which they all have a common interest at law or in equity: that the only common subject in the case Hunter vs. Bosworth and others, imp. at bar, in which the parties had any such interest, was the property on which the mortgage created a lien; that no act done by either cotenant in this case respecting the after-acquired goods could possibly prejudice any right of the other cotenants, because none of the cotenants, as such, had any rights in such goods; that while it is true, as suggested, that the holders of the first mortgage might have received a subsequent mortgage, that is equally true of every other creditor, and every other creditor had just as much right to it, in the eyes of a court, as they; that if they had no enforceable right to such further mortgage, they stood in respect to such afteracquired goods precisely as if the latter had been wholly omitted from the first mortgage; and that it would be a strange anomaly if an obligation not within the scope of judicial power to enforce against the maker, could be enforced on behalf of the obligee against his assignee. 2. That to make the equitable principle in question applicable, there must not only be a common subject and an imperfect title, but possession under such title, and where persons have only an imperfect title to a common subject, without possession or a right to reduce to possession, each one is free to do the best he can for himself. Van Horne v. Fonda, 5 Johns. Ch., 406; Wright v. Sperry, 21 Wis., 329, 337-8; Venable v. Beauchamp, 3 Dana, 324; Coleman v. Coleman, id., 404. In this case the thing held in possession, the thing enjoyed, the thing as to which the holders of the first mortgage had a common title, is the lien on the mortgaged goods existing at the date of the mortgage. As to the subsequently purchased goods, they had no lien, no right known to a court (beyond the right of any other creditor), no jus in re, no jus ad rem, no possession of the goods nor of any interest in them, no enjoyment of anything, by virtue of that part of the mortgage. The plaintiff's counsel objected that the motion for a rehearing was not submitted within twenty days after it was filed, as required by rule 20 of this court. Hunter vs. Bosworth and others, imp. RYAN, C.J. The motion for rehearing is seldom abused, as an opportunity for scolding the court. It can not properly be said that it is so in this case. But the learned counsel who makes the motion, opens his argument with this singular sentence: "The series of misfortunes which I have latterly met with at the hands of this court, has shaken my confidence in the result of any effort I may make to convince the court, or to obtain its favorable judgment in any case where a serious contest is possible." The fact may be as stated, though the late volumes of reports do not quite appear to verify it. But the suggestion is not fair either towards the learned counsel himself or towards the court. For it may be an imputation of failure in the intelligent discharge of duty equally to either. It does not seem to have occurred to the learned counsel that the misfortune of which he complains may be attributable to his clients, or to the work which they give him to do. A great judge once said that great lawyers were frequently unsuccessful; for the reason that, being generally expensive luxuries, they are apt to be employed only in desperate cases. This may be the occasion of the learned counsel's complaint, and his consolation. The learned counsel has made an ingenious and interesting argument, presenting the point on which the judgment of this appeal turned, in a light not suggested on the hearing. Had it been then presented, or were it now presented in time, it would be entitled to the careful consideration due to every lawyerlike argument. But unfortunately, as the learned counsel for the respondent objects, it comes too late. And the court has lost jurisdiction to consider it, or to entertain the motion, or to deny it with costs. Pierce v. Kelly, 39 Wis., 568; Diedrich v. Railway Co., 42 id., 274. It is hoped that the learned counsel will not accept this ruling as a continuation of his series of misfortunes at the hands of the court. By the Court. - Motion denied without costs. Marsh vs. Pugh. MARSH VS. PUGH. PLEADING. (1, 2) Effect of not denying averments of complaint. HUSBAND AND WIFE: WITNESS. (3, 4) Wife as witness for husband; preliminary proof of agency. Costs: (5) Of first trial, awarded to party successful in second trial. 1. Averments of the complaint, not denied by the answer, are admitted. R. S., ch. 125, sec. 31. 2. Where the answer did not deny plaintiff's averment that he built certain houses for defendant according to contract, but merely set up counterclaims for labor done and materials furnished for plaintiff by defendant in afterwards raising said houses, there was no error in refusing an instruction as to the damages to be allowed defendant if such raising was made necessary by plaintiff's breach of contract. 3. A wife is not a competent witness for her husband, except as to matters in which she has acted as his agent; the question whether she so acted in a given transaction (though she is probably a competent witness upon that question), is to be determined by the court before she is admitted to testify in chief; and the proof of her agency should generally be elicited by direct interrogatories on that subject. 4. Certain questions (for which see the case) were put to defendant's wife, offered as a witness for him; her agency had not been otherwise shown; and the answers to the questions could not have any tendency to show it. Held, that there was no error in rejecting the evidence. 5. A judgment for plaintiff on the first trial of the action, including jury fees and tax for clerk's salary, was reversed, and a new trial ordered by this court. Upon judgment for plaintiff in the second trial, the clerk of the trial court, in taxing costs in his favor, included such former fees and tax; and that court, on appeal therefrom, sustained the taxation. Held, that the trial court had discretion to make the costs of the first trial abide the event of the second, and that discretion might be exercised on such appeal from the clerk's taxation. APPEAL from the County Court of Milwaukee County. The complaint alleges that the parties made two contracts, in which plaintiff agreed to furnish the materials and erect for the defendant six small houses according to certain plans and specifications; that defendant agreed to pay plaintiff therefor, in the aggregate, $3,066; that plaintiff fully performed such Marsh vs. Pugh. agreement on his part; and that defendant has paid him $2,900 on the contracts, and no more. None of these averments are denied in the answer. The complaint further alleges that plaintiff furnished materials and performed labor in the erection of the houses, not required by the contracts, and that defendant took certain lumber belonging to plaintiff; for all of which defendant promised to pay plaintiff, and which were worth $202. The extra work thus performed and for which such materials were furnished, is specified to be "the raising of the roofs of the five houses first contracted; the use of a man and team one day; boarding up the front of the houses; making back steps, and raising the chimneys." Judgment is demanded for $368, with interest thereon from a specified date. The answer admits that plaintiff performed work and furnished materials in the erection of the houses to the value of seventy dollars, not required of him by the contracts, and alleges that "the same consisted in making back steps to said houses, in boarding up front of houses, and in making a chair rail to two houses." Beyond this, the claim for extra work and materials is denied. The answer also admits that defendant is indebted to plaintiff on account of such contract $150, and for such extra work and materials $70: in all $220. There are two counterclaims in the answer: one for $25, for work and labor performed; and the other for $15, for lumber and building materials furnished by the defendant for and to the plaintiff. When the answer was served, defendant offered plaintiff judg ment for $220, and interest thereon from a specified date; but the offer was not accepted. The jury returned a special verdict, in which they found that there was due the plaintiff $166 on the original contracts, and $68 for work done and materials furnished by him outside the contracts; that the raising of the roofs and chimneys was not required by the contracts, and was worth $80; that defendant |