11. Unless the inference of negligence or its absence is necessarily deducible from the undisputed facts and circumstances proved, the question is one for the jury. Hoye v. C. & N. W. Ry Co. 666 12. Upon the evidence in this case it is held that the question of the contributory negligence of the plaintiff's intestate, who was killed by a freight train of the defendant at a street crossing, in the night time, should have been submitted to the jury, and a nonsuit was, therefore, improperly ordered. Ibid. NEGOTIABLE INSTRUMENTS. See ATTACHMENT, 1. BILLS AND NOTES. CONTRACTS, 4, 5. EVIDENCE, 16. MORTGAGES, 6. PLEADING, 1-3. NEW TRIAL. See COURT AND JURY, 1, 2. An application for a new trial on the ground that the defeated party was taken by surprise by the testimony given by the opposite party in support of his side of the issue made by the verified pleadings, is held to have been properly denied. Stowell v. Eldred, 26 Wis. 504, distinguished. Delaney v. Brunette, NONSUIT. See NEGLIGENCE, 10-12. 615 NOTICE. Of use to which machine was to be put. See CARRIERS, 2. Of title to land. LAND, 6-8. Actual possession of the vendee under an unrecorded contract for the sale of land is sufficient to put all persons upon inquiry as to his right, and they are chargeable with that knowledge of the vendor's title which they would have obtained by such inquiry. Coe v. Manseau, See DEED, 2:1. TAX TITLES, 1, 2. VENDOR, ETC. OF Of pendency of action affecting land. See MORTGAGES, 2: 2. Of injury from defective highway. See HIGHWAYS, 6. Of defect in machinery. See MASTER AND SERVANT, 1. Of lack of fence on railroad. See MASTER AND SERVANT, 5. OBSTRUCTIONS. See HIGHWAYS, 2, 7-11. OBTAINING MONEY, etc., on false pretenses. See CRIMINAL LAW, 1. OPINIONS. Of witnesses. See EVIDENCE, 1, 3, 11, 15. Of appellate court: Reading to jury. See COURT AND JURY, 2. OVERSEERS of highways. See HIGHWAYS, 5, 7. PARENT AND CHILD. DEBTOR AND CREDITOR, 1. 81 See ADVERSE POSSESSION, 2:3. LANDLORD AND TENANT. MORTGAGES, 4. NEGLIGENCE, 5, 6, 10. WILLS, 6. 1. A child born within the wedlock of a regular marriage which for any reason (as that the woman had another husband living) is null in law, is nevertheless the legitimate child and heir of both parents. Watts v. Owens, 512 2. To bastardize and disinherit a child born in lawful wedlock the clearest and most conclusive evidence of non-access of the hus band is required. Ibid. 3. The rule that recitals in a deed may affect the question of pedigree does not apply to a recital which is, in effect, an admission of nonaccess between husband and wife, for the purpose of disinheriting a child. Ibid. PARTIES. See BANKS AND BANKING. EVIDENCE, 12. JOINDER. TAX TITLES, 1–3. In replevin the defendant disclaimed title in himself, alleging that the plaintiff's wife was the owner and that he was but her bailee. The wife thereupon, by petition stating the same facts, applied to be made a party defendant. Held, that she was entitled to be made such party, and it was not discretionary with the trial judge under sec. 2010, R. S., to deny her application. Carney v. Gleiss493 ner, PARTITION OF WATER POWER. 1. In a complaint for the partition, etc., of water power, it is sufficient to aver generally that the several parties have certain interests therein, and the nature of such interests, without setting forth the history and evidences of their respective titles. Spensley v. Janesville C. M. Co. 549 2. Where a partition judgment has prescribed the method in which the respective parties interested in a water power shall use the water therefrom, the parties must abide by such method until it is changed by the court, and the maintenance of gates or weirs by one party for the purpose of controlling or using the water in a different way, may be enjoined. Mulberger v. Koenig, 558 PARTNERSHIP. See EQUITY, 3. ESTATES OF DECEDENTS, 7. EVIDENCE, 8, 9. VOLUNTARY ASSIGNMENT, 14, 15. Where goods are purchased by one partner upon his individual credit but for the benefit of a firm the existence of which he conceals, the firm obtains a valid title to the goods and the vendors are not defrauded or injured. They have their remedy against the firm assets, and against the partner making the purchase the same as if there had been no firm. McNair v. Rewey, 167 PARTY IN INTEREST. See EVIDENCE, 12. PAUPERS. A finding that a family of eight persons were not supported as paupers in the plaintiff city at any time within one year after their first residence therein, is held to be supported by the evidence, although on one occasion during that time the city furnished to them groceries to the amount of $1.67, it appearing, among other things, that for nearly a year thereafter they supported themselves without asking or receiving aid. Such family, therefore, gained a settlement in the city, under subd. 4, sec. 1500, R. S. Port Washington v. Saukville, 454 The inference of payment arising from mere lapse of time is not sufficient to overcome convincing proof of nonpayment. Delaney v. Brunette, 615 PENALTY for obstruction of highway, Assessment of. See HIGHWAYS, 10, 11. PERSONAL PROPERTY. See APPEALABLE ORDER, 1. ATTACHMENT. BILLS AND NOTES. CHATTEL MORTGAGES. CONTRACTS, 1, 3-5. CRIMINAL LAW, 3-7. DEBTOR AND CREDITOR, 2. GUARDIAN AND WARD. PLEADING, 1-3, 12. SALE OF CHATTELS. TAXATION, 1. PHYSICIANS AND SURGEONS. See CRIMINAL LAW, 9, 10. DAMAGES, 3. LIBEL. MEDICAL SOCIETIES. PLEADING. See ACTION (F.). ADVERSE POSSESSION, 2:4. APPEAL (A.), 3, 4. APPEALABLE ORDER, 2. BANKS AND BANKING, 1. COUNTIES, 4. COURT AND JURY, 4. CRIMINAL LAW, 1, 11. ESTOPPEL. INSPECTION OF DOCUMENTS, 2, 4. JOINDER (A.). LIBEL, 3. MORTGAGES, 3. MUNICIPAL CORPORATIONS, 3. PARTITION, ETC., 1. SALE OF CHATTELS, 1. TAXATION, 3, 4. TRADEMARK. 1. In an action to recover money paid for chattels sold under a fraudulent warranty, it appeared that the plaintiff had paid no money but had given his note for the purchase price. Pending a motion for nonsuit the trial court permitted the complaint to be amended so as to allege the giving of the note, instead of the payment of money, and the demand and refusal to return the same. Held, that the amendment-changed the action from one on contract to one of tort, and was not permissible. Hollehan v. Roughan, 64 2. It appearing further that the note so given was past due and was still in the hands of the payee when the action was commenced, there could be no recovery even under the amended complaint. The note being void for fraud, the plaintiff could not be compelled to pay it nor be injured by it. Ibid. 8. In an action upon a joint and several promissory note, the verified answer of a defendant that he never made or joined in the making of the note, and that if his name appeared upon the note, either as maker or indorser, or both, the said signature was a forgery, is a sufficient and specific denial of the signature within the meaning of sec. 4192, R. S. Thos. Ludlow & Rodgers v. Berry, 78 4. Notwithstanding a general demurrer to the complaint has been overruled, the court may, upon objection at the trial, exclude all evidence under such complaint. Watson v. Appleton, 267 5. A complaint averred that the plaintiff sued as administrator and that he was duly appointed by the county judge. The answer did not specifically deny these averments, but by a demurrer ore tenus it was objected that the complaint did not show a proper appointment because the county court only had jurisdiction in that behalf. Held, that it was sufficiently shown that the plaintiff sued in a representative capacity, and on the trial he might prove that he had been duly appointed. Parish v. Eden, 272 6. There is now no distinction in the practice as to striking out a demurrer as frivolous, and overruling it, since the privilege of answering is allowed in either case. Malone v. Roby, 459 7. Same point. Hoffman v. Wheelock, 434; Hurlbut v. Marshall, 590 8. Evidence tending to establish a defense not set up in the answer, if admitted without objection, should be submitted to the jury with proper instructions, and, if necessary, the court should direct the answer to be amended to conform to the defense made. Bowers v. Thomas, 480 9. The trial court may in its discretion permit any amendment of the answer, provided the facts introduced constitute a defense, although they may be inconsistent with the grounds of defense first stated, or depart from them, or bring in a new and distinct defense; and upon appeal the order of that court will not be disturbed unless there has been a gross abuse of such discretion, or a violation of some well-settled rule of law, or the court has proceeded upon a mistaken view of the law. Brown v. Bosworth, 542 10. It is not error to deny a motion to make more definite and certain allegations in a complaint which are unnecessary and redundant. Spensley v. Janesville C. M. Co. 549 11. In an equitable action for the removal of an obstruction in a mill race, which is alleged to interfere with the plaintiffs' right to draw a certain quantity of water therefrom, the defendants cannot set up a counterclaim for damages on account of the plaintiffs' wrongful use of a greater quantity of water than they were entitled to, and to enjoin them from such wrongful use, although it is alleged that the obstruction was erected and maintained for the purpose of preventing such wrongful use; nor can the defendants, upon such facts, by way of counterclaim, demand judgment legalizing the maintenance of the obstruction. Mulberger v. Koenig, 558 12. A complaint alleging the sale and delivery of property by the plaintiff to the defendant at an agreed price, and demanding judgment for such price, is sufficient, although it does not allege that no part of such purchase price has been paid. CASSODAY, J., dissents. Rossiter v. Schultz, POLICE POWER. See CONSTITUTIONAL LAW, 3. POOR LAWS. See PAUPERS. 655 POSSESSION of land. See ADVERSE POSSESSION. DEED, 2:1. MORTGAGES, 2. VENDOR, ETC. OF LAND, 2-5, 8. PRACTICE. See ACTION (F.). AGENCY, 2. APPEAL. APPEALABLE ORDER. BANKS AND BANKING, 1. COSTS. COUNTIES, 1, 4. COURT AND JURY. CRIMINAL LAW AND PRACTICE. DAMAGES. ESTOPPEL. EVIDENCE. GUARDIAN AND WARD. HIGHWAYS, 6, 10, 11. HUSBAND AND WIFE. INSPECTION OF DOCUMENTS. JOINDER. JUDGMENT. JUSTICES' COURTS. LIBEL, 3. LIMITATION OF ACTIONS. LOGS AND TIMBER, 2:3. MILWAUKEE MUNICIPAL COURT. MORTGAGES, 2. MUNICIPAL CORPORATIONS, 2, 3. NEGLIGENCE, 9-12. NEW TRIAL. PARTIES. PARTITION, ETC. PLEADING. REFERENCE. TAXATION, 2-4. TOWNS. VOLUNTARY ASSIGNMENT. The maxim stare decisis has no application to mere matters of practice. Baker v. Madison, 187 PREFERENCE of creditors. See DEBTOR AND CREDITOR, 3, 4. VOLUNTARY ASSIGNMENT, 1-3. PRESUMPTIONS. See CRIMINAL LAW, 4, 5. DEED, 3. ESTATES OF DECEDENTS, 8. JUSTICES' COURTS, 7, 8. NEGLIGENCE, 2, 4. PAYMENT. PLEADING, 12. TRESPASS. PRINCIPAL AND AGENT. See AGENCY. PRINCIPAL AND SURETY. See SURETYSHIP. PRINTING, in supreme court. See COSTS, 1. PROFESSIONAL ignorance, etc., Imputation of. See LIBEL, 1, 2. PROMISSORY NOTES. See ATTACHMENT, 1. BILLS AND NOTES, 1. CONTRACTS, 4, 5. EVIDENCE, 16. MORTGAGES, 6. PLEADING, 1-3. QUITCLAIM DEED. See VENDOR, ETC. Of Land, 7. RAILROADS. See CONSTITUTIONAL LAW, 3. COURT AND JURY, 3. MASTER AND 1. Sec. 1809, R. S. (requiring the bell to be rung and the whistle blown before a locomotive crosses a highway), was intended to guard against the danger of injury from the frightening of teams traveling upon the highway near the crossing, as well as the danger of actual collision at the crossing; and a railroad company is therefore liable for injuries, caused by a failure to comply with that statute, to persons traveling upon a highway parallel to the railroad and not intending to cross the track. Ransom v. C., St. P., M. & O. R'y Co. 178 2. A passenger who, through the negligence of one conductor, is not furnished with a stop-over ticket to which he is entitled, and who, on attempting to resume his journey after a stop, is required by a second conductor to pay additional fare or leave the train, may elect to leave the train, and in that case may recover from the railway company not merely the amount of the additional fare which he is subsequently obliged to pay in order to reach his destination, but all damages sustained by him as the direct and natural consequence of the fault of the first conductor. v. M., L. S. & W. R'y Co. Yorton 367 RATIFICATION of grant by village board. See VILLAGES, 4. RECORDING ACTS. See DEED, 1, 2. TAX TITLES, 4. VENDOR, ETC. OF |