Scott and others vs. Seaver, Garnishee of Dana. tator, signs his name to the will, it is a good execution under the statute. Robins v. Coryell, 27 Barb., 556; Chaffee v. Baptist Missionary Convention, 10 Paige, 91; Barnard v. Heydrick, 49 Barb., 62, 66; Butler v. Benson, 1 Barb., 526, 533. Under a statute which requires that subscribing witnesses shall sign their names as witnesses, it has often been held that where a person who could not write, simply made his mark as a witness, his name being written by another, that was a good signing. Baker v. Denning, 8 Ad. & Ellis, 94; Jackson v. Van Dusen, 5 Johns., 144; Morris v. Kniffen, 37 Barb., 336; Meehan v. Rourke, 2 Bradf., 385; Harrison v. Harrison, 8 Ves., 185; Addy v. Grix, id., 504; Zacharie v. Franklin, 12 Pet., 151, 162. In the case of Robins v. Coryell, supra, the court say: "What is done for a man in his presence and by his express direction, is his act and deed. If a man tells his wife or his son, or any other person, to put his name to a deed or promissory note, and it is done in his presence and in pursuance of such direction, it is well executed by him. Such execution, not being in his handwriting, would of course require proof of such authority and direction and manner of execution." Under our statute on the subject of evidence, it would not be necessary to make proof of the authority to execute the writing, as the law provides that it shall be deemed properly executed unless the execution be denied under oath; so that in this state there is no inconvenience as to proof which should induce the courts to hold that the execution should be in the handwriting of the person who executes the same. We see no reason for holding that the consent or certificate required to be indorsed upon the copy of the assignment filed with the clerk of the court, should be void unless signed in the proper handwriting of the assignee and officer. The object of the indorsement being simply to furnish notice to the creditors that an assignment has been made of the contents thereof, and that the assignee has accepted the trust, such object is as effect Scott and others vs. Seaver, Garnishee of Dana. ually accomplished when the indorsement is made with the consent and by the direction of the parties as when made in their own handwriting. This construction of the statute in question is not in conflict with the decision of this court in Mericle v. Mulks, 1 Wis., 366. In that case the statute required that the warrant issued by the commissioners to the overseer of highways, as their authority for collecting the highway taxes, should be signed by the commissioners, and the form of the warrant was given in the statute, showing the signatures of the commissioners subscribed to the same. In that case the court held the warrant void because the names of the commissioners were not subscribed in their own handwriting, and because it was not shown that the clerk signed their names in their presence and by their direction. Whether the court would have held the warrant void, even in that case, had the names of the commissioners been attached to the warrant in their presence and by their direction, is not made certain by anything said in the opinion. In the later case of Williams v. Mitchell, 49 Wis., 284, this court held that the notice required to be given by the supervisors, upon an application to lay out a highway, need not be signed by the supervisors in their own handwriting, but that it will be sufficient if it be made and given by the direction and authority of the supervisors. Justice LYON, in his opinion in that case, says: "It will be observed that the statute does not expressly require the notice to be signed by the supervisors. If it did, there would be great force in the objection; but it only requires them to make out a notice.' Of course, this does not mean that one of their number shall actually write it out; yet there is as much reason for holding that it must be so written, as there is for holding that the supervisors must actually sign. The plain, sensible construction of the statute is, in our opinion, that the notice must be made and given by the direction and authority of the supervisors; and in the present case the notice was so made and given." This language is in Scott and others vs. Seaver, Garnishee of Dana. all respects applicable to the case at bar. The section of the statute under consideration only requires the assignee to "indorse in writing on the copy his consent," etc., and the officer to "indorse his certificate," etc. It does not say that either shall sign the same, either in his own handwriting or otherwise; and, as is said above, if we are to give the statute a strict construction, there is as much reason for holding that the indorsements shall be in the handwriting of the party as that he shall sign in his own handwriting. Yet this is not claimed to be requisite even by the learned counsel for the appellants. We think the requirements of the section are fully complied with when the consent and certificate are indorsed upon the copy in the presence and by the direction of the parties required to make the same. When they are so made, and signed with their names, they are made by them, within the meaning of said section. This construction renders it unnecessary to pass upon any of the other questions discussed upon the argument, except the question as to the exclusion of the evidence offered by the appellants to show that Dana had, previously to the assignment, gone through bankruptcy, and that he had failed and settled with his creditors. The questions asked, and which were not allowed by the court, were the following: "Have you, within two or three years, gone through bankruptcy?" "Did you, within two or three years, settle with your creditors in bankruptcy at thirty cents on the dollar?" We do not see how the fact that Dana had within two or three years gone through bankruptcy, and settled with his creditors in bankruptcy at thirty cents on the dollar, could affect the validity of the assignment made in this case. The assignment being made in all respects in conformity to the statute, and for the equal benefit of all his creditors, if in fact all the property Dana had was passed over to the assignee under such assignment, it could not be fraudulent and void as to such creditors. Certainly the fact that Dane had once failed and settled with his Morris, Trustee, vs. Branchaud and another, imp. creditors would not tend to prove such assignment void. See Wilson v. Berg, 88 Pa. St., 167, and cases cited in the opinion. We find no errors in the record, and the judgment must be affirmed. By the Court. The judgment of the circuit court is affirmed. MORRIS, Trustee, vs. BRANCHAUD and another, imp. March 31-April 19, 1881. (1) Appointment of receiver, in foreclosure. (2) What papers considered on appeal from order. 1. In foreclosure of mortgages, where no waste, or failure to pay taxes, or diminution of the value of the security, or increase of the mortgage debt, is shown, but on the contrary such debt has been reduced since the securities were taken, and less than half the remaining debt is due, including only a small amount of interest, and the property consists of city lots, presumptively salable in parcels, and there is nothing to show that a party personally liable for a large part of the debt is not responsible to the full amount of any probable deficiency,—it was error to appoint a receiver. 2. This court, on appeal from an order, declines to consider an affidavit which was read on the hearing, but of which no copy was served, the same being no part of the papers on which the motion was based. APPEAL from the Circuit Court for Fond du Lac County. Foreclosure of mortgages, etc. The case is thus stated by Mr. Justice CASSODAY: "The mortgages sought to be foreclosed, and the liabilities which they were given to secure, are described in the com. plaint as follows: "1. A note executed September 13, 1873, by the defendants Norbert Branchaud and Joseph Branchaud to one Gould and wife, or bearer, for $2,400, payable in six equal annual payments, with interest at ten per cent.; secured by a mortgage Morris, Trustee, vs. Branchaud and another, imp. executed by the same defendants on two and one-half lots in the city of Fond du Lac, to secure payment of part of the purchase money; which note and mortgage had been assigned to the plaintiff for $400 and interest, paid to the assignors by plaintiff as trustee for certain creditors of Norbert Branchaud, to whom the latter was indebted over $3,000 in mortgages upon the premises. It was alleged that the payment of $400 due September 13, 1880, and interest for one year, was still due and unpaid; that the mortgage had been satisfied of record by mistake; and that all the defendants except Norbert Branchaud had subsequent claims or liens upon the premises. "2. A note executed by Norbert Branchaud March 2, 1874, to one Bechaud or order, for $1,000, with interest annually at ten per cent., due June 1, 1875; to secure which Norbert gave a mortgage of the undivided half of the same lots included in the former mortgage, and of parts of two other lots described, in the city of Fond du Lac; which note and mortgage were assigned to the plaintiff in trust for certain of Norbert Branchaud's creditors, who held the third mortgage of the premises, and who were compelled to purchase this mortgage and pay $1,075 therefor in order to protect themselves. The complaint alleged that $1,000, with interest from January 1, 1880, was due on this mortgage, and that all the defendants had subsequent claims or liens on the premises. "3. It was further alleged that on the 2d of January, 1874, Joseph Branchaud gave Norbert two notes for $1,000 each, bearing interest at ten per cent. per annum, due respectively January 1, 1874, and January 1, 1875, and secured by a mortgage of one undivided half of the lots mentioned in the second mortgage above described (Norbert owning the other undivided half of said lots); that one of said notes had been paid, and there was due on the other $1,000, with interest at ten per cent. from January 1, 1880; that Joseph Branchaud and wife had conveyed their undivided one-half of the premises to Norbert; and that the latter had assigned said |