1. City of Boscobel v. Bugbee, 41 Wis., 59 (as to when penal actions for viola-
tions of municipal ordinances are criminal actions), explained. Presi-
dent, etc., v. Bell,

488

2. Crocker v. Brown Co., 35 Wis., 284 (as to liability of county for personal
expenses of officers), distinguished. Fernekes et al. v. Sup'rs Milwau-
kee Co.,

303

3. Dykeman v. Budd, 3 Wis., 640 (as to waiver of objection to jurisdiction),
distinguished. Carpenter et al. v. Shepardson,

406

4. Finch v. Phillips, 41 Wis., 387 (as to effect of permitting party to intro-
duce as evidence in chief his own declarations subsequent to the trans-
action out of which the action arose, where such evidence is merely cu-
mulative), criticised in a separate opinion, by RYAN, C. J. Torrey et al.
v. Nixon,
142
5. Gill v. Rice, 13 Wis., 549. An exception stated to the rule in that case that
facts constituting an estoppel must be pleaded before evidence of them is
admissible. Gans v. St. Paul F. & M. Ins. Co.,
108

6. Hale v. Dock Co., 29 Wis., 482. Certain dicta in that case criticised.
Price v. Wis. M. & F. Ins. Co.,
267
7. Howell v. Howell, 15 Wis., 55 (as to the effect of a demurrer where it ap-
pears from the complaint that the statute of limitations has run upon
the action), examined; but the question not here determined. Hyde v.
Sup'rs of Kenosha County,
129

8. Hoyt v. Hudson, 41 Wis., 105 (as to proof of contributory negligence), ex-
plained. Prideaux et ux. v. Mineral Point,
513

9. Lawrence v. Railway Co., 42 Wis., 322 (as to when it will be held negli-
gence in law to leave cattle unrestrained in vicinity of unfenced railway),
distinguished. Curry v. C. & N. W. Railway Co.,
665

10. Pierce v. Kelly, 39 Wis., 586 (as to jurisdiction of this court over ap-
peals after thirty days from judgment here), distinguished. Bonin v
G. B. & M. Railway Co.,
210

11. Smith v. Stoller, 26 Wis., 671 (as to what constitutes an acceptance of
goods, giving validity to sale, under the statute of frauds), distinguished
Bacon et al. v. Eccles et al.,

227

12. State v. Rowan, 35 id., 303 (as to waiver of objection to jurisdiction), dis-
tinguished. Carpenter et al. v. Shepardson,
406
13. Wheeler v. Hall, 41 Wis., 447 (as to averments necessary to show wife
liable for labor, etc., in erecting house upon her land at her husband's
request), distinguished. Lauer et al. v. Bandow,
556
14. Wheeler v. The State, 24 Wis., 52 (as to waiver of objection to jurisdic-
tion), distinguished. Carpenter et al. v. Shepardson,

CERTIFIED COPY OF DOCUMENT. See EVIDENCE, 1.

406

1. To entitle a party to a change of venue (as for prejudice of the judge), an
application must be made for the change, upon notice to the other side;
an affidavit, filed, and read in open court by the attorney of the party,
without proper notice and motion, has no effect to arrest the jurisdiction
of the court; nor can the court properly act on such an affidavit until
moved to do so. In this case, there being no notice of motion, and no
motion, and the affidavit appearing to have been read by one who was
not attorney for either party, the action of the court in disregarding it,
and proceeding with the trial, was not a denial of any motion, nor sub-
ject to exception. Taylor et al. v. Lucas,
155

2. Ch. 104 of 1876 operates to repeal section 8, ch. 123, R. S., touching affi-
davits for a change of venue for prejudice of the judge. Carpenter et al.
v. Shepardson,
406
[3. It seems that, under the statute of 1876, such an affidavit must state, not
merely that the affiant believes, but that he "has good reason to be-
lieve," that the judge is prejudiced, etc.]

Ibid.

4. Where a cause has been removed from one court to another for prejudice
of the judge, an objection to the sufficiency of the affidavit for removal
is waived by a general appearance of the objecting party in the court to
which the cause is sent. Montgomery v. Scott, 32 Wis., 249, cited; and
Dykeman v. Budd, 3 Wis., 640; Wheeler v. The State, 24 id., 52; and
State v. Rowan, 35 id., 303, distinguished.
Ibid.

5. The statute expressly allows the venue to be changed by stipulation in civil
actions; and where the question is one of jurisdiction of the person, con-
sent, equivalent to stipulation, giving jurisdiction to one court, upon a
change of venue, divests the jurisdiction of the other.

CHARGE. See COURT AND JURY.

Ibid.

CHARTER. See CITIES. CONSTITUTIONAL LAW, 2. CORPORATIONS. HIGH-

WAYS. 2.

CHATTEL MORTGAGE.

See EQUITY, 2. FRAUDS, STATUTE OF, 9, 10.

1. A chattel mortgage and a written agreement to govern the same subject
matter between the parties, executed contemporaneously, must be treated
as one contract. Blakeslee v. Rossman,

116

2. Where such a contract mortgages to creditors a merchant's entire stock of
goods, licensing the mortgagor to remain in possession and dispose of the
goods in the course of his trade, and apply one-half of the proceeds of
the sales upon his liability to the mortgagees, without making any pro-
vision for the disposition of the other half, this in effect leaves such oth-
er half at the absolute disposal of the mortgagor for his own use. Ibid.
3. A chattel mortgage permitting the mortgagor to remain in possession,
and to sell, and apply the proceeds, or any part of them, to his own use,
is fraudulent and void in law as against creditors.

Ibid.
4. The act of the mortgagee, under such a mortgage, in taking possession
upon default, cannot give him a valid title against creditors. Ibid.

5. [The mortgage itself, as put on record, purported to cover the entire stock,
for money lent to the mortgagor; but the contemporaneous agreement,
not recorded, shows it to be in effect a mortgage of half the stock, for
indemnity against liabilities assumed by the mortgagees. Quære,
whether such failure of the record to disclose fully the consideration and
nature of the lien would not avoid the mortgage as against creditors.]
Ibid.
6. The mortgage being void in law, as against creditors, in a controversy be-
tween one claiming under it and a creditor of the mortgagor, there is no
question for the jury of good faith in fact.
Ibid.

7. While the holder of a chattel mortgage may relinquish his rights as such,
and accept the chattels from the mortgagor in payment of his debt, or as
a pledge, such a shifting of title must be open, express and explicit-
both debtor and creditor being expressly parties to the payment or pledge,
and their acts in that behalf established as expressly and satisfactorily as
payment or pledge in any other case.
Ibid.

8. The rule (established in Comstock v. Scales, 7 Wis., 159, and subsequent
cases in this court) that a chattel mortgage of after-acquired goods cre-
ates no lien, legal or equitable, by force of the mortgage, upon such
after-acquired goods, adhered to. Hunter v. Bosworth et al., imp., 583

9. Where a chattel mortgage contains a covenant for further assurance, to
extend the lien to after-acquired goods, a subsequent mortgage on after-
acquired goods, executed to one of the mortgagors for a separate debt,
will enure to the benefit of them all as additional security to the original
mortgage.
Ibid.

10. Under this rule, where notes secured by a chattel mortgage with such
covenant for further assurance, are held in severalty by different owners,
a mortgage of the after-acquired goods, executed to one of such owners
for a separate debt, enures to the benefit of all.
Ibid.

11. One who, not being a party to a mortgage, claims under it, is bound by
everything it contains, as a privy to it.

Ibid.

CITIES.

See HIGHWAYS, 14.

1. The charter of a city provides that "whenever the common council shall de-
termine to make any public improvement, as authorized by this chapter,
they shall cause to be made an estimate of the whole expense thereof,
and of the amount thereof to be charged to each lot and parcel of land,
and, in case of grading, of the number of cubic yards to be filled in or
excavated in front of each lot; and such estimate shall be filed in
the office of the city clerk, for the inspection of the parties interested,
before such work shall be ordered to be done.' Held, that where the
council ordered a street to be graded in front of a lot, without any esti-
mate whatever having been made or filed as the charter requires, it had
no jurisdiction to make the improvement at the expense of the lot-owner;
and the lot having been sold for nonpayment of a pretended special
assessment for such improvement, the certificate of sale will be canceled,
and the issue of a deed thereon restrained. Pound v. Sup'rs Chippewa
Co. and others,
63

2. A charter provision that no action shall be maintained against the defend-
ant city upon any claim or demand," until it shall first have been pre-
sented to the common council for allowance, held not to include actions
for personal torts. Kelley et ux. v. Madison,

"CLAIM." See CITIES, 2.

COMITY. See CONTRACTS, 9.

638

COMPLAINT. See AMENDMENT, etc., 1. CORPORATIONS (B.), 1, 2. ESTOP-
PEL (D.). INSURANCE AGAINST FIRE, 8, 9. MECHANIC'S LIEN, 4. No-
VATION OF CONTRACT, 1. PLEADING, 3, 5, 10. Town INSURANCE
COMPANIES.

COMPUTATION OF TIME. See JUSTICES' COURTS, 1.

CONDEMNATION OF LAND.

1. Ch. 50, P. & L. Laws of 1872, so far as it authorizes the common council
of Milwaukee to abandon proceedings previously had for condemning
certain lands, is valid. Van Valkenburgh v. Milwaukee,
574
2. The effect of such an abandonment was to render inoperative a judgment
previously rendered against the city, on appeal from an award assessing
damages for the lands sought to be condemned; proceedings on such
judgment would be stayed, and its collection restrained, if it were sought
to be enforced; and it does not stand in the way of an action by the
judgment plaintiff for damages sustained by reason of the condemnation
proceedings and of acts of the city on the premises during their pendency.

Ibid.

CONSOLIDATION OF ACTIONS.

Where, by consent of parties in open court, an order was made that three
causes (between the same parties) be consolidated for the purposes of
trial and appeal, but such consolidation not to affect the question of
costs," there should have been but one finding and one judgment. Ca-
pron v. Sup'rs of Adams Co.,
613

CONSTITUTIONAL LAW.

See CONDEMNATION OF LAND, 1. CRIMINAL LAW, etc., 2-5.

1. That provision of our state constitution (art. IX., sec. 1) which declares
that the river Mississippi, and the navigable waters leading into the
Mississippi and St. Lawrence, and the carrying places between the same,
shall be common highways, and forever free, as well to the inhabitants
of the state as to the citizens of the United States, without any tax, im-
post or duty therefor," does not deprive the legislature of power to au-
thorize the clearing out of the channel and construction of works in a
navigable stream, at points where its waters are either unnavigable
or only partially navigable, for the purpose of improving the navigation,
and the charging of a reasonable toll as compensation for such improve-
Wisconsin River Imp. Co. v. Manson,

ments.

255

2. The act incorporating the plaintiff with power to improve the navigation
of the Wisconsin river between certain termini, by erecting and main-
taining dams and piers at points where they seem necessary, etc., and
to collect tolls upon all lumber, etc., passing over or through any im-
provements so made, with a proviso that such tolls shall be no greater
than are reasonable in consequence of such increased facilities of naviga-
tion, is valid.
Ibid.

3. The mere fact that plaintiff's improvements occupy the entire breadth of
the channel, so that the river cannot be used as a highway without pass-
ing through or over them, is no defense in an action for tolls. Ibid.
4. Until congress exercises its power over the subject, improvements author-
ized by the law of the state cannot be called in question by a private
person on the ground that they conflict with the paramount authority of
congress over the public navigable waters of the United States. Ibid.

5. Ch. 140 of 1872 requires every person taking a promissory note, or other
written obligation, any part of the consideration of which is a patent
right, etc., etc., to cause to be inserted in the body thereof the words,
given for a patent right," and punishes a violation of the act as a mis-
demeanor. It seems that this court would be disposed to hold, if the
question were properly before it, that the act is void, as an invasion of
federal authority. State v. Lockwood,

403

6. The provision of our state constitution (art. X, sec. 2), that "the clear
proceeds of all fines collected in the several counties for any breach of the
penal laws" shall constitute a portion of the school fund, construed as
applying only to penalties or fines for breaches of penal statutes,
collected by ordinary judicial proceedings in the courts of the state,
and not to penalties for violations of municipal ordinances, made payable
by charter to the municipal treasury. Village of Platteville v. Bell, 488