6. Under sec. 3832, R. S., when there is a deficiency of assets, an administrator may bring an action to cancel and remove from the records conveyances made in fraud of the creditors of his intestate, and to restore altered or mutilated deeds and the record thereof. Wheeler v. Single, 380 7. As between the personal representatives and the heirs at law of a deceased partner, his share of the surplus of the real estate of the firm which remains after paying the debts of the firm and adjusting the equitable claims of its members as between themselves, is considered as real estate. Martin v. Morris, 418 8. An administrator's deed, though fraudulently given, is prima facie evidence of the regularity of the proceedings prior to the sale and creates a cloud upon the title of the heirs. Hoffman v. Wheelock, 434 ESTOPPEL. See ADVERSE POSSESSION. AGENCY, 1. APPEAL (A.), 2. CONTRACTS, 3:2, 5. HIGHWAYS, 1, 9. MORTGAGES, 2. VENDOR, ETC. OF LAND, 1, 3. Defendants in ejectment, upon the theory that the deed under which plaintiff claimed conveyed by its terms an undivided onehalf only of the premises, and that they themselves had acquired the other undivided one-half by a subsequent deed from the same grantor. pleaded merely a general denial. The court construed plaintiff's deed as conveying the whole of the premises (see 55 Wis. 96). A judgment accordingly in favor of the plaintiff was vacated and a new trial granted under the statute (sec. 3092, R. S.), and the defendants amended their answer by setting up an equitable counterclaim for the reformation of plaintiff's deed so as to make it conform to the intention of the parties appearing on its face and convey an undivided one-half of the land only. Held, that the counterclaim was not inconsistent with the previous general denial, and that the former trial and judgment did not estop the defendants to set up such counterclaim. Green Bay & M. Canal Co. v. Hewitt, Jr. 316 EVIDENCE. See APPEAL (A.), 2, 5. ASSAULT AND BATTERY. ATTACHMENT, 2. CONTRACTS. 2. COURT AND JURY. CRIMINAL LAW, 3-5, 8-10. DEBTOR AND CREDITOR. DEED, 1, 4. ESTATES OF DECEDENTS, 8. INSPECTION OF DOCUMENTS. JUDGMENT (H.), 1, 2. MEDICAL SOCIETIES, 1. MORTGAGES, 6-8. NEGLIGENCE, 1, 5, 10-12. PARENT AND CHILD, 2. PAYMENT. PLEADING, 8. SALE OF CHATTELS, 1, 3. Towns, 3. VOLUNTARY ASSIGNMENT, 1, 2, 8, 11. WILLS, 4, 6. 1. A surveyor who had testified as to his location of a certain corner was asked whether he was satisfied that such corner was or was not the true quarter-section corner, etc. Held, that such question was not leading, nor. the witness being an expert, was it incompetent. Toomey v. Kay, 104 2. A party who fails to object to the admission of evidence as to transactions with his deceased agent and then testifies as to transactions between himself and such agent, cannot afterwards have such evidence stricken out. Phillips v. McGrath, 124 8. One who had employed the plaintiff in an action for personal injuries, both before and after he received such injuries, might properly testify that those injuries seriously affected his ability to do some kinds of work and incapacitated him from traveling much. Such testimony is not the expression of an opinion. Baker v. Madison, 137 4. A jury must determine the question whether a highway or gutter is safe or unsafe in a good or bad condition-from the evidence of its condition and not from the opinions of any one, whether an expert or not. Ibid. 5. A witness having stated facts showing that a gutter was in good condition at the time of an accident, was asked to compare its condition at that time, as to unevenness and depressions, and its condition at a subsequent time when he made a survey thereof. He answered: "When I made the survey the gutter, in places, was very uneven, and stone displaced out of line, some broken and crushed, and very much out of repair." Held, that the answer was responsive, and it was not error to deny a motion by the counsel asking the question to strike out the words "and very much out of repair.' Ibid. 6. On cross-examination the same witness was asked if the gutter had been rebuilt since the accident, and answered, "Partly.' Held, that it was not error to permit such question and answer. Ibid. 7. It is discretionary with the court to what extent it will permit the plaintiff's witnesses to be cross-examined as to matters purely defensive. McNair v. Rewey, 167 8. Evidence of the existence of judgments against one member of an alleged firm, has no bearing upon the question of the existence of the firm. Ibid. 9. Evidence of instructions to a traveling agent not to solicit any trade from a certain person nor from any firm of which he was a member, is not admissible to show that no sales were in fact made to such a firm. Ibid. 10. The question being as to the responsibility of a person not a party to the action and it having been proved that there were judg ments against him the collection of which could not be enforced by execution, an error in the admission of other testimony as to his pecuniary standing and reputation was immaterial. D. M. Osborne & Co. v. Rider, 235 11. The mere opinion of a witness not based upon facts which would justify him in forming an opinion, is inadmissible. Strong v. Stevens Point, 255 12. In an action brought by a husband, as administrator, for the benefit of himself and his wife, to recover damages for the death of their son, the wife, being a real party in interest, is a competent witness. Ibid. 13. Evidence that a boy who was crossing a bridge was seen near a hole therein, that a few seconds later he had disappeared, and that his body and his hat were found in the water below a short dis tance from the hole in the direction of the current, is held sufficient to justify a finding that he fell through such hole. Ibid. 14. The direct testimony of a party as to the intent with which he did an act does not necessarily outweigh the evidence of circumstances tending to show a different intent. Anderson v. Wehe, 401 15. The question being as to the presence or absence of lightning as an agency in the destruction of plaintiff's house, and the testimony of a number of experts having been taken, an instruction that "although the preponderance of the evidence is not always determined by the number of witnesses, still, in a case where a question is to be determined by the testimony of men of great scientific attainments, other things being equal, the greater number would carry greater weight; that is, the testimony of eight or nine such witnesses would be entitled to greater weight than that of two. But in this case it is your province to give such weight to the testimony of the experts, when viewed in connection with all the other evidence in the case, as you think and believe it should receive," is held not to have been erroneous. Ely v. Tesch, 17 Wis. 202, and Bierbach v. Goodyear Rubber Co. 54 id. 208, distinguished. Spensley v. Lancashire Ins. Co. 443 16. The direct examination of the payee of a note having been confined to the question of the genuineness of the signature, it was not error to exclude cross-examination as to the consideration. Youmans v. Carney, 580 17. Evidence of the expectations of a party as to matters in respect to which his rights are fixed by an express contract, is inadmissible to vary such contract. Wheeler & Wilson M. Co. v. Laus, 635 18. In a case tried by the court, the improper admission of evidence is not available as error on appeal. EXCEPTIONS. See APPEAL (A.), 6. HIGHWAYS, 10, 11. EXCESSIVE DAMAGES. See DAMAGES, 1, 2, 5. EXCISE LAWS. See Towns. EXECUTORS AND ADMINISTRATORS. See DEED, 5. Ibid. ESTATES OF DE CEDENTS. EVIDENCE, 12. HIGHWAYS, 6. JOINDER (A.). PLEAD- EXEMPTIONS. See VOLUNTARY ASSIGNMENT, 9, 15. Of justices. See COUNTIES, 2, 4. Of referees. See REFERENCE. Of sheriff. See COUNTIES, 3. FELLOW-SERVANTS. See MASTER AND SERVANT, 3. FENCES. See CONSTITUTIONAL LAW, 3. SERVANT, 4, 5. HIGHWAYS, 2. MASTER AND FINDINGS in action to enforce lien on logs. See JUSTICES' COURTS, 6, 7. FLOWAGE OF LAND. See FOX AND WIS. IMPROVEMENT. FORFEITURE. See CONTRACTS, 2. COUNTIES, 2, 3. VILLAGES, 1. FOX AND WISCONSIN IMPROVEMENT. 1. Under ch. 166, U. S. Stats. of 1875, the present owner of lands which have, during or previous to his ownership, been overflowed by reason of the works of the Fox and Wisconsin Improvement Company, may proceed in the manner prescribed by ch. 291, Laws of 1874, to have all the damages caused by such flowing ascer tained and paid. Sweaney v. U. S. 396 2. It would seem that, in such case, for lands permanently overflowed there should be compensation as for lands actually taken; and for other lands injured thereby, there should be damages, with benefits deducted, within the limitation period of six years. The value of the land taken should be ascertained as at the time of the actual taking, and interest from that time should be added. Ibid. FRAUD. See ACTION (F.). ATTACHMENT. BILLS AND NOTES, 2. DEBTOR AND CREDITOR. DEED, 4. DOWER, 1. ESTATES OF DECEDENTS, 6. JOINDER (A.). MORTGAGES, 5. PARTNERSHIP. VOLUNTARY ASSIGNMENT, 1, 2, 8, 11-13. FRAUDS, STATUTE OF. See DEBTOR AND CREDITOR, 1. LOGS AND TIMBER, 2. FRAUDULENT CONVEYANCE. See CHATTEL MORTGAGES. DEBTOR AND CREDITOR. DEED, 4. DOWER, 1. ESTATES OF DECEDENTS, 6. LOGS AND TIMBER, 2. VOLUNTARY ASSIGNMENT, 1, 2, 8, 11-13. GUARDIAN AND WARD. No action at law for moneys in the hands of the guardian can be maintained by a ward until the guardian's accounts have been settled in the county court. Kugler v. Prien, GROWING CROPS. See MORTGAGES, 9. HIGHWAYS. 248 See EVIDENCE, 4-6, 13. NEGLIGENCE, 3-8. RAILROADS, 1. VENDOR, ETC. OF LAND, 1. 1. Where the former owner of land and his grantee have acquiesced for a number of years in the validity of an order laying out a highway thereon and have built and maintained a fence on what was supposed to be the line of the highway, and during that time the land has greatly increased in value and large sums have been expended upon the highway, the grantee is estopped from asserting that such order was invalid because the award of damages failed to state the names of the owners upon whose land the highway was laid out or that their names were unknown to the supervisors, as required by sec. 60, ch. 19, R. S. 1858. State v. Wertzel, 184 2. The failure of the supervisors to compel the removal of a fence which encroaches upon a highway, for a period of five years, is not such an abandonment of the highway as will relieve the adjoining owner from the obligation to remove such fence. Sec. 1294, R. S., relates only to obstructions to the highway as distinguished from mere encroachments. Ibid. 3. A highway laid out and established through wild and unfenced lands, and afterwards used and traveled by the public, is "lawfully opened" within the meaning of sec. 1330, R. S. Ibid. 4. The ulterior purpose of a traveler in crossing a bridge cannot affect his right to have it in a reasonably safe condition for such use. Strong v. Stevens Point, 255 5. When an overseer of highways has actual notice of a defect, it is his duty to see that it is remedied, and nothing short of this will relieve the town from liability for injuries to travelers caused by such defect. Parish v. Eden, 272 6. Where the death of a person has resulted from a defect in a highway and the right of action for the whole damages therefor is in the administrator and the recovery is for the benefit of others, a notice under sec. 1339, R. S., either by the administrator or by one of the beneficiaries is sufficient to charge the town (if otherwise liable) for the whole damages. [Whether that section has any application to such a case, quære.] Ibid. 7. Sec. 1326, R. S., applies to the streets in villages in relation to which no special provisions inconsistent there with have been made (sec. 1347), although the functions of overseers of highways are performed therein by street commissioners. State v. Leaver, 387 8. To constitute an "obstruction" within the meaning of sec. 1326, R. S., an object or structure in a highway need not be such as to stop travel. Thus, a barn occupying nearly one half of the width of a street in a populous village, though leaving room for travel, is an obstruction. Ibid. 9. Until a street, which has been dedicated to the public, is needed for actual use, no mere non-user, however long continued, will operate as an abandonment of the public right thereto; nor will the fact that until so needed for a highway the village authorities treated the street as the property of the owners of the fee, estop them from thereafter proceeding to remove obstructions therefrom. Ibid. 10. Whether in an action to recover the penalty for obstructing a highway the amount of such penalty should be fixed by the court or by the jury, is not determined. If fixed by the court, an objection upon that ground, to be available upon appeal, must have been made in the trial court. Ibid. 11. A single general exception to an order of the trial court directing the jury to find the defendant guilty and to assess the penalty at $25, does not raise the question of the right of the judge to fix the penalty. HOLIDAYS. See JUSTICES' COURTS, 3. Ibid. HOMEOPATHIC PHYSICIANS. See MEDICAL SOCIETIES, 2. |