AMENDMENT OF PLEADING.

See ESTOPPEL (D.). PLEADING, 6. TAXES, etc., 8.

1. In an action to restrain the sale of land for nonpayment of taxes, the
complaint alleged other facts to show that the assessment was illegal and
void, without alleging those upon which it is here held void; but the latter
appeared from the answer, as well as from the evidence of the assessor at
the trial. Held, that the question decided is presented by the plead-
ings; and if the complaint is defective in that respect, it is a proper case
for amendment either before or after judgment. Goff v. Sup'rs of Out-
agamie Co.,

55

2. Leave should not be given to amend an answer by inserting averments so
framed that if they were in the original answer, the court would grant
a motion by plaintiff to make them more definite and certain. Shipman
v. The State,

381

ANSWER. See AMENDMENT OF PLEADING, 2. PLEADING, 4, 6-9, 11, 12.
RAILROADS (D.), 2, 3.

APPEAL.

(A.) To Supreme Court. See EXCEPTIONS. RAILROADS (C.), 5. VARIANCE.
1. On affirming a judgment, the appellate court has no discretion to grant a
new trial. Stevens v. Sup'rs of Clark Co.,
36

2. This court has jurisdiction of an appeal only when the return of the court be-
low shows an appeal perfected within the time and in the manner pre-
scribed by the statute; and such time cannot be enlarged by waiver, nor
even by express consent of the parties. Herrick et al. v. Racine Ware-
house and Dock Co.,

93

3. Under ch. 264 of 1860, which requires notice of appeal to be served on the
clerk and the respondent within the time limited for appealing, such a
notice mailed (to the clerk or attorney residing in a different place) on
the evening of the last day for appealing, and not received until a sub-
sequent day, is too late. Stevens v. Wheeler et al.,
91
4. Appeal from a judgment of foreclosure does not bring up for review an
order refusing to modify the judgment by striking out amounts allowed
for costs and solicitor's fees. Latimer v. Morrain, imp.,
107
5. An order denying a motion to change the venue must appear from the
record proper. Taylor et al. v. Lucas,
155
6. A written exception to an order is part of the record proper; but an excep-
tion purporting to be to an order, where there is no such order in the
record, is a nullity.
Ibid.
7. After verdict, defendant moved, on the judge's minutes, for a new trial, on
the ground that the court erred in that part of its charge "wherein it
defined the burden of proof and the amount of proof necessary" to a re-
covery; and he excepted to a denial of his motion. Held, that this was
sufficient to bring up that part of the charge for review. Wells v. Per-
160

kins,

8. On appeal from an order denying appellant's motion for judgment in his favor upon a special verdict, the question whether the verdict was supported by the evidence, does not arise, but only the question whether, upon the facts found by such verdict, the appellant was entitled to judgment; and a bill of exceptions settled after the making of the order, and showing the evidence, is not properly a part of the record on such appeal. Wheeler v. Pereles et al., 332

9. On appeal from an order, the clerk of the trial court must transmit such order and the original papers used by each party on the application, or copies thereof if so directed by the court, certifying that they are such originals or copies, as the case may be (sec. 5, ch. 264 of 1860; Tay. Stats., 1632, $5); and it must appear, either from the record returned or from the certificate, that such record contains all the papers so used, and no others. Carpenter et al. v. Shepardson, 406

10. The return made on appeal from an order being so defective that this court could not determine the jurisdiction of the court below or the merits of the order, it directed the appeal to be dismissed unless the appellant, within thirty days, should have a proper return made; and directed its clerk, on appellant's request, to transmit the papers to the court below for that purpose. Ibid. 11. The record of the court below must be treated by the appellate court as importing absolute verity. Ibid. 12. The complaint in this action being general for professional service, and it not appearing that plaintiff may not be able to give evidence under it of legitimate professional service, the cause, on reversal of a judgment in his favor based upon evidence of such agreement, is sent back for a new trial. Wight v. Rindskopf, 344

13. In an equitable action a verdict has not the same conclusive weight as in an action at law; and, on appeal from a judgment pursuant to such verdict, this court reviews the evidence. Clegg et al. v. Jones et al., 482 14. No probability appearing that the evidence would be materially different on a new trial, this court, on reversing a judgment for the plaintiffs, directs a dismissal of the complaint.

Ibid. 15. In the absence of a bill of exceptions, it will not be presumed, in support of a judgment for plaintiff, that material facts not alleged in the complaint were proven. Lauer et al. v. Bandow, imp., 556

16. In the appeal of one of several defendants, with adverse interests, the plaintiff, prima facie at least, is the "adverse party" of the statute, respondent here (N. W. Ins. Co. v. Park H. Co., 37 Wis., 125); but the other defendants, though not parties, are privies to the appeal, and, upon proper application here, would be admitted to all the rights of practice of respondents. Hunter v. Bosworth et al., imp.,

583

17. Where the judgment follows strictly the conclusions of law, and the findings of fact are all within the issues made by the pleadings, and there are no important exceptions to the rulings on the trial, and the bill of exceptions is not certified to contain all the evidence, the only question for this court is, whether the facts found support the conclusions of law. McIntyre v. Town of White Creek, 620

(B.) From Justices' Courts.

Where the notice of appeal from a justice's judgment, and the undertaking, expressly state that the appeal is to the circuit court of the county, while,

by law, an appeal lies from justices' courts, in that county, only to the county court, the latter does not acquire jurisdiction. Johnson v. C., M. & St. P. Railway Co.,

431

(C.) From County Boards of Supervisors. See COUNTIES, 1. TAXES, etc., 8.

ARCHITECT AND BUILDING SUPERINTENDENT.

1. It was not the duty of the "building superintendent" of the Northern Hospital, under sec. 9, ch. 39, Laws of 1870, to furnish the board of building commissioners, either monthly or on the completion of the buildings, "correct and accurate estimates" of materials put in the buildings by the contractors; monthly "estimates upon construction contracts being in their nature mere approximations. Shipman v. The State, 381 2. Though the building commissioners of said hospital might call to their aid, throughout, the skill of the building superintendent as an architect, and might probably have required him, upon the completion of the building, to inspect all its details and report to them whether or not they complied with the contract, yet it was the duty of the commissioners themselves, not only to procure a proper plan, and make a proper building contract, but to see that the building was completed according to such contract; and this duty they could not wholly devolve upon the superintendent.

Ibid. 3. The proposed answer avers by way of counterclaim, that plaintiff's specifications required a certain number of feet of iron coil to be placed in the north wing of said building; that plaintiff negligently certified to the building commissioners that the required quantity of coil had been put in, and that the commissioners, relying on his certificate, paid for it; that it was plaintiff's duty under his contract to know the quantity actually put in; that the commissioners did not and could not then know the fact; and that it came to their knowledge after plaintiff's discharge. It is not alleged that the commissioners required plaintiff to aid them in their action on the completion of the building; and the allegation as to plaintiff's certificate is understood to refer to his monthly estimates. Held, that the proposed averments do not show a valid counterclaim. Ibid.

4. The proposed amendments allege that plaintiff put, or procured to be put, into said hospital building a defective heating apparatus, not such as his contract bound him to put in; and that, "by the contract and the specifications thereto attached," he was to procure to be put into or upon the building certain structures or fixtures of a specified character, but in fact put into or upon it certain others, of an inferior character. Plaintiff's contract with the commissioners (which is before the court in the pleadings) was merely to furnish plans, specifications and drawings, and to superintend the construction of the building. Held, that the averments do not state either defense or counterclaim. Ibid.

5. Plaintiff, having contracted with the commissioners as an architect, may be held to reasonable skill as such, both in planning the building and superintending its construction; and may be liable for defects in his plans or superintendence resulting from his lack of reasonable skill and diligence, notwithstanding the adoption of his plans by the commissioners, or a ratification of his superintendence by their acceptance of the building without objection, if the defects were patent to an expert, but latent to inexperts. And whether a failure of the commissioners in their duty would, under any or all circumstances, excuse a want of reasonable skill or diligence on plaintiff's part, is not determined.

Ibid.

ARREST OF JUDGMENT. See CRIMINAL LAW, etc., 1-4.

ASSAULT WITH INTENT TO MURDER. See CRIMINAL LAW, etc., 6-8.

ASSESSMENT.

1. Of Land for Taxation. See TAXES, etc., 1-3, 11–13.

2. Of lots, for municipal improvements. See CITIES, 1.

ASSIGNMENT.

1. Of Written Instrument. See CORPORATIONS (B.), 2. FORECLOSURE
OF MORTGAGE.

2. Of Partnership Claim. See Partnership.

3. Of Tax Certificate. See TAXES, etc., 4, 10.

ATTORNEY-AT-LAW.

1. An attorney having in his hands moneys collected for his client, though
he may retain out of them reasonable charges for his services, cannot
exact a receipt in full as a condition of paying over the amount admit-
ted to be due the client; but the court, on summary application, after
due demand, will compel the attorney to pay over such amount, requir
ing the client only to receipt therefor on account. Charboneau v. Orton
and another,
96

2. An attorney-at-law, employed to draw an assignment of a mortgage,
acts as an attorney, and not as a notary merely; and the court should
not permit him, as a witness, to testify against his client as to disclosures
made to him by the latter in the course of such employment. Getzlaff
v. Seliger and wife,
297

AUTREFOIS CONVICT. See CRIMINAL LAW, etc., 2-4.

BASTARDY ACT.

See INSTRUCTIONS TO JURY, 2.

1. While a complaint in bastardy is still pending in justice's court, the par-
ties may make a settlement, subject to the approval of the supervisors, to
be entered upon the justice's docket; and, upon the defendant giving
a satisfactory bond of indemnity to the supervisors, the justice should
discharge him. Getzlaff v. Seliger and wife,

297

2. After the defendant in such a proceeding has been committed or held to
bail, to answer in the circuit court, by order of the justice, the latter has
no further authority in reference to a settlement, or to a discharge of the
defendant from custody; but jurisdiction of the proceeding is thenceforth
in the circuit court.

Ibid.

3. If, after the accused in such a case has been held to bail or committed, the
parties may still settle, at least with the approval of the circuit court (a
point not decided), yet the accused will not then be entitled to his dis-
charge in that court, without indemnifying the supervisors to the satis-
faction of the court.
Ibid.

4. The justice, in such a case, committed the accused to answer in the circuit
court, but subsequently, upon a payment being made to the complainant,
and a mortgage executed to her father by the accused and his wife, or-
dered his release. In an action upon the mortgage, where the husband
pleaded that it was obtained by duress of the wife: Held, that she
should have been permitted to testify, for the defense, to the circumstan-
ces under which she executed the mortgage.
Ibid.

BILL OF EXCEPTIONS.

See APPEAL (A.), 8, 15, 17. JUDGMENT (K.), 1.

A bill of exceptions should contain nothing that ought to appear by the
record proper; and, so far as it contains anything of that character, is of
no effect. Taylor et al. v. Lucas,

BILL OF SALE. See EQUITY.

BILLS AND NOTES.

155

See CONSTITUTIONAL LAW, 5. CORPORATIONS (A.). DAMAGES, 3. EVI-

DENCE, 7, 8.

1. A stipulation in a promissory note that no credit shall be allowed on it un-
less indorsed upon it by the payees, will not prevent the allowance, in
an action upon the note, of any authorized payment actually made, but
not indorsed. Kasson et al. v. Noltner,

646

2. In a suit upon the first of several promissory notes given for the price of
a chattel sold by plaintiff to defendant, where it does not appear that the
notes were received as payment, nor in whose hands the remaining notes
are, defendant cannot recover any excess of his damages, from breach of
warranty of the chattel, over the amount due on the note in suit. Reuter
et al. v. St. Louis et al.,

BOARD OF REVIEW. See TAXES, etc., 11-13.

693

(A.) Of Officer.

BOND.

1. The liability of a surety cannot be extended by construction or doubtful
implication. Taylor v. Parker and others,
78

2. By the conditions of a bond duly given by P. as a constable, he and
his sureties jointly and severally agreed to pay to the persons entitled
thereto "all such sums of money as the said constable [might] be liable
to pay by reason of or on account of any summons, execution or other
process or proceeding which [should] be delivered to him for collection,
and for all moneys which [should] come into his hands as such constable."
Held, that no action will lie upon the bond for the amount of a judg-
ment recovered by plaintiff against P. for the value of plaintiff's prop-
erty seized by P. under an attachment against the goods of a third
person.
Ibid.