the court read said section 5 to the jury as applicable to the case; charged the jury that the question of immediate delivery was a question of fact for them, under the circumstances; and refused to instruct them that immediate, in that section, does not mean instantaneous, but must be construed in reference to the circumstances. Held, error. Ibid.

11. A sale of an interest in standing timber, or of an interest in a contract of sale of standing timber, is a sale of an interest in land; and, if by parol and wholly unexecuted, is void under the statute of frauds.

ley,

GARNISHMENT. See JUSTICES' COURTS, 2-4.

Daniels v. Bai566

HIGHWAYS.

See CITIES, 1. EVIDENCE, 14. NEGLIGENCE, 1. 2.

1. In an action for injuries from a defective highway, proof in behalf of the defendant city that its authorities, upon actual view, were satisfied with the condition of the highway, is inadmissible. Prideaux et ux. v. Mineral Point, 513 2. Sec. 5, ch. 273 of 1873 (the charter of the defendant city) does not, if it could, make the judgment of the common council conclusive of the sufficiency of the street.

Ibid.

3. There being a depression in one of the traveled streets of a city, the authorities raised one-half in width of the street over the depression, by embankment some six feet high in the middle and gradually lessening towards each end; and the side of the embankment, next to that half of the street which was left in its natural state, was precipitous and without railing or barrier. Held, that the street was unsafe, as a matter of law, even though each half was safe by itself. Ibid.

4. Proof in such a case that the defendant municipality has expended all the means at its disposal in repairing its streets, will not excuse it, every municipality being bound, at its peril, to keep its highways in sufficient repair, or to take precautionary means to protect the public against danger of insufficient highways. Ibid.

HUSBAND AND WIFE. See EVIDENCE, 16-20. MARRIED WOMAN. MECHANIC'S LIEN, 3-5.

INDICTMENT. See CRIMINAL Law, etc., 6, 7.

INJUNCTION. See CITIES, 1. CONDEMNATION OF LAND, 2. MINING LEASE, 1. RAILROADS (C.), 4, 5. TAXES, etc., 2, 3, 13, 14.

INSTRUCTIONS TO JURY.

See CRIMINAL LAW, etc., 8. FRAUDS, STATUTE OF, 9, 10. JUDGMENT (K.), 3-6. NEGLIGENCE, 3, 5.

1. In an action against plaintiff's stepfather, for labor and services performed by plaintiff after his majority, under an alleged agreement by defendant

to pay what they were reasonably worth, one defense was, that during
the time of such services plaintiff lived in defendant's family as a mem-
ber of it, and performed the service in consideration of a home, clothing,
etc. The court, after instructing the jury that plaintiff could not recover
without showing an express contract of the kind alleged, further charged
that if they found, from the preponderance of testimony, that defendant,
on or about a day named, agreed with plaintiff to pay him for services
afterwards to be rendered, and that plaintiff, in pursuance of such agree-
ment, rendered such services, then he was entitled to recover; and that
the burden of proof was on plaintiff to show both the contract and the
value of his services by a preponderance of proof. Held, that the charge
was erroneous in failing to point out the distinction between circumstan-
ces from which a contract may be implied, and circumstantial evidence
of an express contract, and in failing to inform the jury that an express
contract of the kind alleged "must be established by direct and positive
evidence, or by circumstantial evidence equivalent to direct and posi-
tive." Tyler v. Burrington, 39 Wis., 376.

[LYON, J., dissents on the ground that the record shows the verdict to
rest upon the direct and positive testimony of several witnesses to an ex-
press contract, which the jury believed in preference to the defendant's
testimony, and that the result could not have been affected by giving the
correct rule of evidence.] Wells v. Perkins,

160

2. In an action under the statute to charge defendant as the father of a bas-
tard child, the court instructed the jury, in substance, that in regard to
minor matters, about which the testimony was conflicting, the prosecu-
trix might be mistaken, but as to the main fact about which she had
testified-viz.: the fact of defendant's having had connection with her
on a certain occasion,- she could not be mistaken, but had either told
the truth or committed willful perjury. Held, no error. Douglass v. The
State,
392

INSURANCE AGAINST FIRE.

See PLEDGE, 4. TOWN INSURANCE COMPANIES.

1. A policy of insurance against fire which provides in terms that it shall be
void if the building insured shall become unoccupied without the consent
of the insurer indorsed on the policy, is voidable at the option of the in-
surer after a loss, if, at the time of such loss, the building was unoccu-
pied without the insurer's consent so indorsed. Gans v. St. Paul F. &
M. Ins. Co.,
108

2. If an insurance company, with notice, actual or constructive, of facts ren-
dering the policy voidable at its option, objects upon other grounds only
to proofs of loss furnished, and subjects the insured to trouble and ex-
pense in furnishing new proofs, it will be estopped from setting up such
facts in avoidance of the policy. And this estoppel arises although such
first proofs did not, and the new proofs do, furnish the company cumula-
tive evidence of the facts relied upon as a breach.
Ibid.

3. Knowledge on the part of the agent of an insurance company, authorized
to issue its policies, of facts which render the contract voidable at the
insurer's option, is knowledge of the company; and the effect of such
knowledge is not varied by stipulations in the policy, that "the use of
general terms, or anything less than a distinct, specific agreement, clearly

expressed and indorsed on the policy, shall not be construed as a waiver
of any printed or written condition or restriction therein; " that the agent
"has no authority to waive, modify or strike from the policy any of its
printed conditions; " that his assent to an increase of risk is not binding
upon the company until it is indorsed upon the policy, and the increased
premium paid; and that, in case the policy shall become void by viola-
tion of any condition thereof, the agent has no power to revive it. Ibid.

4. Where A. is authorized by an insurance company to receive applications
for and issue its policies, the company cannot substitute the assured for
itself as A.'s principal by a provision in a policy so issued, that " any
person, other than the assured, who may have procured the insurance to
be taken" by the company, shall be deemed to be the agent of the as-
sured, and not of the company under any circumstances whatever. Ibid.
5. A clause in an insurance policy declaring that a waiver of any condition
thereof, to be binding, must be indorsed upon it, may itself be waived by
parol, or by acts in pais.
Ibid.

6. Ch. 347 of 1874 provides that where real property, in this state, insured
against fire, shall be totally destroyed by fire without criminal fault of
the assured, the amount of insurance written in the policy "shall be
taken and deemed to be the true value of the property at the time of
such loss, and the amount of the loss sustained," and as the measure of
damages. Held, that, in an action upon a policy issued since the statute
took effect, in a case coming within its terms, the amount of insurance
written in the policy is conclusive as to the amount of the damages (if
any) for which the insurer is liable by reason of the loss. Reilly et al. v.
Franklin Ins. Co.,
449

7. As the statute rests upon grounds of public policy, the conclusive effect
of the amount of insurance written in the policy upon the measure of
damages, is not altered by a stipulation in the same instrument that the
damages should be established" according to the true and actual cash
marketable value" of the property when the loss happened. Ibid.

8. In an action upon a fire insurance policy issued since ch. 347 of 1874,
where the property was wholly destroyed without criminal fault of the
assured, the complaint, averring the amount of insurance written in the
policy, need not further aver the value of the property when destroyed;
and if the policy stipulates for an arbitration as to the amount of the loss
in case of a difference between the parties on that point, and that no ac-
tion shall be brought until an award is obtained fixing the amount of
the claim," such stipulations have no effect, under the statute, and such
arbitration or award need not be averred. Thompson et al. v. St. Louis
Ins. Co.,
459

9. A complaint in an action on a fire insurance policy alleges that one of the
plaintiffs had an insurable interest in the property as owner, to an amount
exceeding the insurance; that the other plaintiffs were interested in the
property as mortgagees to a large amount specified, and, by the terms
of the policy, the loss was payable to them to the amount of their mort-
gage interest; and that the property was wholly destroyed. Held, a
sufficient averment of plaintiffs' interest and damage.
Ibid.

10. An agreement by the insurer with the assured, after a loss, to submit the
amount thereof to arbitration, is a waiver of the objection that "proofs
of loss" were not furnished as required by the policy. Bammessel v.
Brewers' Fire Ins. Co.,

100

403

11. In an action on a fire insurance policy, where the amount of the loss was
determined by ch. 347 of 1874 to be the amount of insurance written in
the policy, the insurer cannot defend on the ground that, by the terms
of the policy, "all fraud or attempt at fraud by false swearing or other-
wise on the part of the assured, was, to cause a forfeiture, and that the
assured, upon his examination under oath before a notary as to the
amount of the loss, grossly and falsely exaggerated the value of the
property for the purpose of defrauding the insurer.
Ibid.

1. Judgment by confession on warrant of attorney is not void because the affi-
davit of plaintiff's agent upon which it is entered, is irregular in omit-
ting to state his means of knowledge. Pirie et al. v. Hughes et al., 531
2. Such a judgment will not be vacated for mere irregularity, especially
where the warrant contains a release of errors. And the fact, appearing
on motion to vacate, that the affidavit on which judgment was entered
was made by one having competent knowledge, is entitled to some
weight in determining that the judgment shall stand.
Ibid.
3. A refusal to vacate a judgment upon warrant of attorney affirmed, on the
ground that no meritorious defense is disclosed. Herfurth v. Bieder-
staedt, imp.,
633

(B.) When Judgment must be entered in Justice's Court. See JUSTICES'
COURTS, 1, 6, 7.

(C.) Judgment in Garnishment. See JUSTICES' COURTS, 2-4.

(D.) Judgment in Divorce. See DIVORCE, etc.

(E.) Judgment after repeal of statute. See REPEAL OF STATUTE, 2.

(F.) How Judgment rendered inoperative. See CONDEMNATION OF Land, 2.

(G.) Arrest of Judgment. See CRIMINAL LAW, etc., 4.

(H.) Power of Court over Judgment. See DIVORCE, etc., 4, 5.

(I.) Presumptions in support of Judgment. See APPEAL (A.), 11, 15.

(J.) Vacating Judgment. See JUDGMENT (A).

The trial court cannot vacate its judgment after the expiration of the term,
for error of law or fact committed in rendering it. Latimer v. Morrain,
imp.,

107

(K.) Reversal of Judgment.

1. A judgment will not be reversed upon immaterial exceptions; nor will it be
reversed for insufficiency of evidence to sustain the verdict, where the bill
of exceptions is not certified to contain all the evidence. Ehlert v. Hol-
lander,
251

[2. RYAN, C. J., in a separate opinion, criticises Finch v. Phillips, 41 Wis.,
387, so far as it seems to hold that a judgment might not be reversed for
an error in permitting a party to give in evidence in chief his own sub-
sequent letter relating to the transaction out of which the action arose,
where the evidence was merely cumulative.] Torrey et al. v. Nixon,
142
3. A judgment will not be reversed for an inaccuracy in the charge which
could not injure the appellant in view of the evidence. Dean v. C. & N.
W. R'y Co.,

Russell & Co. v. Loomis,

305
545

4. Errors by which the appellant is not injured if the admissions in his own
pleading are true, are not ground of reversal. Kalckhoff v. Zoehrlaut,
373
5. A party who did not ask for a special verdict or instructions on a question
arising upon the evidence, cannot complain merely because the question
was not submitted to the jury.
Ibid.

6. Mere failure to instruct the jury, in such a case, as fully and specifically
upon some points as would have been proper, held not ground of rever-
sal, where no instructions were asked on the omitted points, and no ex-
ception taken except to an instruction which was not erroneous. Doug-
lass v. The State,
392

7. A party cannot complain of a judgment against him because the damages
awarded are less than the opposite party was entitled by law to recover.
Bammessel v. Brewers' Fire Ins. Co.,
463
8. A judgment will not be reversed for errors in the admission of evidence,
by which the appellant could not have been injured. Kasson et al. v.
Noltner,
JURISDICTION. 1. Of Justice's Court. See BASTARDY ACT, 1, 2. JUSTICES'
COURTS, 1, 4-9.

2. Of County Court. See APPEAL (B.).

646

3. Of Circuit Court. See BASTARDY ACT, 2, 3. CHANGE
OF VENUE, 1, 4, 5. DIVORCE, etc. JUDGMENT (J.).
REFERENCE.

4. Of Supreme Court. See APPEAL (A.), 2, 3. PRACTICE (B.).

JURY TRIAL. See CRIMINAL LAW, etc., 5.

JUSTICES' COURTS.

See APPEAL (B.)

1. Where a statute gives a certain number of hours to perform an act, without
mention of Sunday, the hours of an intervening Sunday are to be ex-
cluded from the computation. So held in respect to sec. 96, ch. 120, R.
S., which permits a J. P. to continue for seventy-two hours, for consider-
ation, a cause submitted to him, before rendering judgment. Meng v.
Winkleman,

41