take, where there was no mistake of facts, but merely an erroneous
belief of counsel that upon the facts a legal action would lie. Ibid.

4. Where the complaint is on a quantum meruit, and the proof shows a
special contract and a balance due plaintiff thereon, the variance may
be disregarded, or the complaint amended, after judgment, by the
proofs. Lemke v. Daegling,
498

ANSWER. See GARNISHMENT, 1. PLEADING, 7. REPLEVin, 1.

1. An injunctional order was granted against defendant with a provision that
plaintiff should file a certain bond and serve a copy thereof on defend-
ant's attorney, within ten days, or the order should be denied. On
defendant's appeal from that order, the record fails to show that any
such bond was filed. Held, that the appeal, not appearing to be from an
order in force, must be dismissed. City of Menasha et al. v. M. & N.
R. R. Co.,
138
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. Morris v.
Branchaud et al.,

187

3. Where a bill of exceptions, purporting to have been settled and signed by
the trial judge, appears in the record on appeal, respondent's remedy,
if he denies that it is properly there, is by motion, either in the court
below or in this court, to strike it from the record; the presumption is
that the bill was properly settled and signed; and this presumption is
not overcome by the mere fact that it was settled and signed after the
time prescribed by sec. 2876, R. S. Nilson v. Morse,
240

4. In a case tried by a referee, where the court below has confirmed or modi-
fied his report, but has failed to pass specifically upon the exceptions
taken before him and renewed in the court, this court, on appeal, will,
in its discretion, pass upon the exceptions, or reverse the judgment and
direct the court below to pass upon them in the first instance; and the
latter course will be pursued only in doubtful cases involving many
exceptions. A remark obiter in Fairbank v. Newton, 46 Wis., 644,
withdrawn. Lemke v. Daegling,

498

5. An order of the circuit court refusing to set aside an order of the judge
thereof in proceedings to condemn land for a railroad, is appealable. 49
Wis., 162. Wisconsin Cent. R. R. Co. v. Cornell University,

(B.) From Justice's Court.

537

1. On appeal from a justice's judgment in a criminal action, the circuit
court tries the case de novo. The State v. Haas,
407

2. In a prosecution for a misdemeanor, where a justice's court, having juris-
diction of the subject matter and of the defendant's person, renders a
judgment wholly unwarranted by law, and void for that reason, an ap-
peal by the defendant from such judgment nevertheless gives the circuit
court jurisdiction.

APPEALABLE ORDER. See APPEAL (A.), 5. GARNISHMENT, 1.

"APPLICATION FOR TAX DEED." See TAX SALES, etc., 4.

Ibid.

ASSESSMENT FOR CITY IMPROVEMENT.

See EQUITY, 1, 2.

The decisions in Johnson v. Milwaukee, 40 Wis., 315, and Watkins v.
Zwietusch, 47 id., 515, that an assessment of benefits arising to a lot in
the city of Milwaukee from a public improvement is void if made arbi-
trarily and without view of the premises-adhered to. Watkins et al.
v. Milwaukee et al.,

ASSIGNMENT.

See RAILROADS, 1, 2.

98

General Assignment for the benefit of Creditors.
1. Section 1696, R. S., provides that the assignees named in a general assign-
ment for the benefit of creditors, "shall each, in the presence of the
officer taking the bond, before delivering the copy of the assignment to
said officer for the purpose specified in the preceding section, indorse in
writing on such copy their consent to take upon themselves
the
trusts specified in the assignment," etc.; and that such officer "shall
indorse thereon his certificate," etc. Held, that it is sufficient if the names
of the assignees and the officer are affixed in their presence and at
their request to the declaration of consent and the certificate, respect-
ively; and it is not necessary that such names should be affixed in their
own handwriting. Scott et al v. Seaver, Garnishee, etc.,

175
2. Subd. 19, sec. 4971, R. S., prescribes that "in all cases where the written
signature of any person is required by law, it shall always be the
proper handwriting of such person, or, in case he is unable to write, his
proper mark or his name written by some person in his presence. Held,
that this provision does not apply to the declaration of consent or the
certificate above mentioned, as sec. 1696 does not expressly or by neces-
sary implication require the written signature of the assignees and the
officer.
Ibid.

3. Whether an assignment made in compliance with sec. 1694 would be
valid, and the provisions of secs. 1695-6 are merely directory, is not here
considered.
Ibid.
4. In an action turning upon the validity of such an assignment, questions
put to a witness inquiring whether the assignor had not, within two or
three years, gone through bankruptcy and settled with his creditors at a
small per cent., were properly ruled out as irrelevant.
Ibid.

5. Sec. 1697, R. S., declares, with reference to the inventory of the assets of
a general assignor for the benefit of creditors, which is required to be
filed within a specified time, that "no mistake therein shall invalidate
such assignment," etc. Held, that this includes mistakes of law, as, in
this case, a mistake as to the exemption of certain real property from
liability to sale on execution. Farwell & Co. v. Grundy, Garnishee, 268
6. The mere fact that, through mistake, the whole of the assignor's property
was not scheduled in the first instance, does not invalidate the assignee's
bond; but the circuit court has authority to require further security from
the assignee.
Ivid.

7. Where the assignor in a general assignment for the benefit of creditors has
made and filed a correct inventory of his assets and list of creditors as
required by the statute, the assignment is not invalidated by the mere
fact that the assignee has failed to affix his certificate thereto within ten

days after the execution of the assignment (sec. 1697, R. S.); the pro-
vision as to such certificate not requiring it, in terms, to be affixed before
the filing of the list and inventory, and being merely directory. Stein-
lein v. Halstead,

ATTORNEY GENERAL. See MANDAMUS, 2, 3.

AUCTION SALES. See FRAUDS, STATUTE OF.

BILL OF EXCEPTIONS. See APPEAL (A.), 3. JUDGMENT (C.).

BILLS AND NOTES.

See CONTRACTS, 8. FRAUD, 4. SUBROGATION.

289

1. An agreement, upon sufficient consideration, to extend the time of pay-
ment of a note "until after threshing,' held to be for a time
sufficiently definite to give it validity, and work a discharge of the
non-assenting surety. Moulton v. Posten, imp.,

169

2. The consideration for the alleged extension was a second note then given
by the principal promisor in the first note; such second note was
usurious; and it does not appear that it has ever been paid. Held, that
there was a valid extension.

Ibid.

[3. It seems that where A. makes his note payable to X. or bearer, and pro-
cures B. to sign it for his accommodation, and for the purpose of en-
abling him to negotiate said note to X., and afterwards A. negotiates it
in fact to Y. for the payment of a different debt, this is a fraud upon
B., which, if known to Y. when he took the note, will prevent a recovery
thereon against B.]
Ibid.

4. A promissory note in the form, "I promise to pay," etc., signed by two
or more persons, is joint and several. Dill v. White,

BOND of Executor and Legatee. See Costs, 5.

BURDEN OF PROOF. See DAMAGES, 3. EVIDENCE, 12. RAILROADS, 7.

456