were engaged in getting out and banking the logs of the appellants, which were attached in this action. The evidence on the part of the plaintiff tends to prove that the goods were used by the men and teams in the employ of Miller & Neff, while they were at work in cutting, hauling, and banking the logs of the appellants, which were attached in this action. It is admitted by the learned counsel of the appellants that the bill of goods sold, which consisted of flour, feed, and butter, were supplies, within the meaning of sections 1, 2, c. 469, Laws 1885, and, if they were in fact used by Miller & Neff in feeding the men and teams employed by them in cutting, hauling, and banking the logs in question, and were sold by the respondent to said Miller & Neff for the purpose of being used in that way, then the respondent was entitled by law to a judgment in his favor, subjecting the said logs to the payment of said claim. The defense the appellants made upon the trial was (1) that the said Miller & Neff at the time in question were merchants dealing in the kind of merchandise sold by the respondent to them, and that the respondent sold the goods to them, not for the purpose of being used by them in getting out the logs in question, or any other logs, but to go into the store of said Miller & Neff, to be sold out at retail by them as any other goods kept by them for sale; and (2) that such goods, or the greater share of them, were sold by said Miller & Neff at retail from their store, to persons other than those then in their employ, and engaged in cutting, hauling, and banking said logs of the appellants; (3) that a large part of said bill of goods was used in boarding and paying off men in the employ of Miller & Neff, not at the time engaged at work upon the logs in question. Upon this appeal these questions of fact have been fully presented by the learned counsel for the appellants, and this court is asked to reverse the verdict of the jury on the ground that it is wholly unsupported by the evidence, or, if not wholly unsupported, that the great preponderance of the evidence is against the verdict. A motion to set aside the verdict was made by the appellants in the court below upon this ground, and denied by the trial court, and exceptions taken.

Upon a careful reading of the evidence we find that, while there is considerable direct evidence, and much circumstantial evidence, tending to establish the contention of the learned counsel for the appellants, we also find that the evidence of the respondent and that of Neff, and Rockafeller, the book-keeper of Miller & Neff, certainly sustains the verdict of the jury. It is therefore clear that the learned circuit judge was bound to submit these questions of fact in the case to the consideration of the jury, and, the jury having found in favor of the case as made by the plaintiff's evidence, and the learned circuit judge having refused to set aside the verdict as against the evidence, or as against the great preponderance of the evidence, according to well-established rules, this court ought not to reverse the judgment upon that ground. It is further claimed that the court erred in refusing to give the following instructions asked by the appellants: "First. If you find that the supplies were bought by Miller & Neff for the purpose of putting them in their store and retailing them at a profit to their employes generally, and to the customers of their store at a profit, and the supplies were so sold, then the plaintiff is not entitled to a lien in this case." Refused by the court, and the defendants excepted. "Second. If you find that the supplies were bought and taken to the store of Miller & Neff in the usual way by them as merchandise, and were kept on exhibition for sale, at a profit, to their employes and others in the usual way, then the plaintiff is not entitled to a lien." Refused by the court, and defendants excepted. "Third. The plaintiff must prove the use to which the supplies were put, and that they were used as supplies within the meaning of the law." Refused by the court, and the defendants excepted. The first instruction asked probably stated the law applicable to the case; but the refusal to give it, as well as to give the third instruction, was not error, because they had been substantially given by the learned circuit judge in his

general charge, and it was unnecessary to repeat them at the request of the appellants. The second instruction asked was properly refused, as not presenting the law of the case. If the goods were sold by the plaintiff for the purpose of being used in the logging camp, and were in fact used in such camp by the vendees, the respondent would be entitled to his lien, although the vendees may have placed them in their store for sale before they were so used. The learned circuit judge instructed the jury that the respondent could only have a lien upon the logs of the appellants for the value of the supplies furnished to Miller & Neff which were actually used by them in paying for work of men and teams in getting out the logs, and feeding the men and teams so employed by them in the logging business in getting out the logs of the appellants. Upon the other question he instructed the jury as follows: "If you find from a fair preponderance of the evidence that Miller & Neff, at the time these supplies were furnished by the plaintiff, were engaged in keeping a general store for the general purpose of trade; that they were also engaged in building a mill, or repairing it, and in lumbering; that Stacy, the plaintiff, knew it, and furnished these supplies to Miller & Neff upon their own credit alone, and for the purpose of their general trade business,-you will find that the plaintiff is not entitled to any lien at all upon the property described in the complaint, and will use form No. 2 for your verdict." This instruction is substantially as requested by the appellants. The case seems to have been fairly submitted to the jury upon the evidence, and, there being sufficient evidence in the case to sustain a verdict for the respondent, this court will not reverse it on appeal.

It is also alleged as error that the logs were not sufficiently described in the complaint, or in the petition for a lien filed by the respondent and offered in evidence on the trial, and that the court erred in allowing the plaintiff to amend his complaint and petition for a lien after the evidence in the action had been received. The record shows that the following proceedings were had on the trial: "After the testimony of both plaintiff and defendant had closed, and before arguments were made to the jury, plaintiff, by his counsel, moved the court to amend the petition and claim for lien on the logs, which petition was filed May 20, 1886, so as to make the description of the logs described therein conform to the proofs taken, and read as follows, to-wit:" (Here follows a particular description of the logs upon which it is claimed the supplies furnished by the plaintiff were expended.) The court allowed the amendment, and the defendants excepted. The claim for a lien, and the original complaint, described the logs simply as "about 1,500,000 feet of pine saw-logs and timber, end-marked and stamped, M B." The appellants had answered to the complaint; and made no objection on the trial to the insufliciency of the plaintiff's complaint, or to the introduction of his evidence, except that the appellants objected to the introduction of the petition for a lien, which the respondent, at the close of his testimony, offered in evidence. The objection was that the logs were insufficiently described therein. The objection was overruled, and the defendants excepted. After the plaintiff rested his case the appellants moved to nonsuit the plaintiff on the sole ground that he did not prove that his action was commenced within four months after a lien was filed. Under the circumstances it is evident that the appellants were in no way misled by the generality of the description of the logs in the complaint and petition for a lien, and there was therefore no error in allowing the amendment, as permitted by the court. That the petition for a lien may be amended is fully established by the decisions of this court. Witte v. Meyer, 11 Wis. 295; Brown v. Coke Co., 16 Wis. 555; Challoner v. Howard, 41 Wis. 355; White v. Dumpke, 45 Wis. 454; Halpin v. Hall, 42 Wis. 176-181; Sherry v. Schraage, 48 Wis. 93, 4 N. W. Rep. 117; Huse v. Washburn, 59 Wis. 414, 18 N. W. Rep. 341; Jacubeck v. Hewitt, 61 Wis. 96, 20 N. W. Rep. 372; Edleman v. Kidd, 65 Wis. 18-23, 26 N. W. Rep. 116. Sec

tion 3339, Rev. St., requires the plaintiff to allege in his complaint a description of the property against which he claims a lien. This allegation of the complaint is amendable in the same manner as any other allegation, and, when the evidence is admitted without objection, the courts may amend it to conform to the proofs; in any case, when it is evident the defendant is not surprised by such amendment, and no injustice is done thereby. The judgment of the circuit court is affirmed.

1. CHATTEL

BURR v. Dana.

(Supreme Court of Wisconsin. December 4, 1888.)

MORTGAGES-REDEMPTION-ACCOUNTING.

In replevin by a mortgagee against a mortgagor for a stock of goods of which the former had been in possession, where defendant files a counter-claim to redeem on payment of the balance found due, and the court states the account between the parties, giving defendant the right to redeem on paying the designated balance, money received by him on sales made from the stock, after regaining its possession, is properly omitted from such account.

2. COSTS-ON APPEAL.

On appeal by defendant, where there are exceptions to the failure of the trial court to find that another stock of goods purchased by plaintiff while in possession of the mortgaged stock had been so commingled therewith that the stocks could not be separated for the purpose of an accounting, and the supreme court finds that the purchased stock was covered by the mortgage, and reverses the judgment on that ground, defendant is properly allowed costs as the prevailing party, under Rev. St. Wis. 2949, though there are no specific exceptions to the omission of the trial court to include the purchased stock in the mortgaged goods.

On motion for rehearing.

see 39 N. W. Rep. 562.

For statement of facts and opinion on appeal,

Hicks & Phillips, for appellant. Waring, Eichstaedt & Niskern, for respondent.

LYON, J. The plaintiff moves for a rehearing on the grounds (1) that, in the account stated between the parties by this court, an item of $103.20, found by the referee to have been received by the defendant from the receipts of the store, was omitted from the accounting; and (2) that, inasmuch as the question whether the Waupun stock became a portion of the mortgaged goods was first raised by this court, no costs should be allowed the defendant on a reversal of the judgment solely because that stock was not therein adjudged to be covered by the mortgage.

1. The item of $103.20 was properly omitted from the accounting. The amount did not come from the pocket of the plaintiff, but was received by the defendant from the proceeds of the mortgaged property; that is, it came out of the plaintiff's security, and reduced the same just that amount. If the defendant redeems the mortgaged goods, the value of the goods which will then be returned to him will be that amount less than the same would have been had he not sold $103.20 worth of the goods, and kept the money. If the defendant does not redeem, and the plaintiff forecloses his mortgage by a sale of the mortgaged goods, should the proceeds fall short of paying the mortgage debt, the deficiency would be increased the same amount, and it would be included in his recovery in an action for such deficiency. Hence this item does not figure in this action of replevin and counter-claim to redeem, and was properly omitted from the accounting.

2. It may be true, as counsel for plaintiff contends, that there are no specific exceptions to the omission of the circuit court to include the Waupun stock in the mortgaged goods, but there are exceptions to the failure of the circuit court to find that this stock and its proceeds had been so commingled by the plaintiff with the Dana stock and its proceeds (which both parties seem to have conceded was the only stock covered by the mortgage) that the latter

stock could not be separated from the Waupun stock for the purposes of an accounting. Upon this commingling of the two stocks, counsel for the defendant mainly rested their contention, in their argument of the appeal, that the basis upon which the account should be stated is to charge the plaintiff with the value of the mortgaged goods which came to his possession, and credit him with the loan. A settlement upon this basis would be more favorable to the defendant than is the account stated by this court. So we were thus called upon to determine whether there had been any commingling of goods as claimed, and we resolved the question in the negative, because, equitably, the Waupun stock was also included in the mortgage. Having so found on proper exceptions, our judgment necessarily disposed of that stock. For the reasons above sugggested we conclude that the case was correctly decided in the first instance. The defendant is the prevailing party on the appeal, and is entitled to costs under the statute. Rev. St. § 2949. The motion for a rehearing must be denied, with $25 costs.

JACOBSON v. LANDOLT.

(Supreme Court of Wisconsin. December 4, 1888.)

ATTACHMENT CREDITORS-VACATION OF

1. PARTNERSHIP-INSOLVENCY RECEIVERS APPOINTMENT-PRACTICE. Where, upon suit between partners for a dissolution, the partnership property comes into the hands of a receiver, before one claiming a special lien levies his attachment upon it, and such claimant desires to vacate the order appointing the receiver, he must proceed by filing a petition setting forth the facts upon which he relies to obtain a vacation of the appointment. A summary proceeding by motion is not the appropriate method.

2. SAME-INTERVENTION.

Such claimant has the right to intervene in the partnership action for the purpose of asserting his lien.

Appeal from circuit court, Ozaukee county: SLOAN, Judge.

The respondent, William H. Landolt, commenced an action against one James W. Vail, on January 16, 1888, alleging in his complaint that the plaintiff and defendant were copartners, doing business as bankers at the city of Port Washington, in this state, under the firm name of James W. Vail & Co.; that they both desired a dissolution of such co-partnership; that there were large assets belonging thereto, and a large number of creditors of the firm; and that the interests of all concerned required the appointment of a receiver of such assets, to be administered under the direction of the court. On the same day Vail signed an instrument in writing, as follows: "I hereby appear in the above-entitled action, and consent to the appointment of a receiver therein." Also on the same day a receiver of the partnership assets was appointed by a court commissioner, and qualified as such by giving a bond, as directed by the commissioner. Subsequently the appellant, Neils Jacobson, gave notice of a motion to be heard March 6, 1888, for leave to intervene in the action, and to vacate the order appointing a receiver therein. The grounds for such motion were that on the 17th day of January, the day after the receiver was appointed, Jacobson, who was a creditor of the alleged partners, commenced an action against them, and sued out a writ of attachment therein, which was duly levied upon certain property of the debtors then in the hands of the receiver; that no action was in fact commenced by Landolt against Vail, because the summons had not been served upon him, and he had made no effectual appearance in the action; that Landolt and Vail were not partners; that the action, if one was commenced, was collusive and fraudulent; that the commissioner had no authority to appoint a receiver; and that the complaint states no adequate cause for the appointment of a receiver. The motion was brought to a hearing at the time appointed therefor, upon affidavits and certain depositions taken under circuit court rule 11. Pending the

hearing of the motion, and on March 7, 1888, the circuit court made an order ex parte in the partnership suit, as follows: "The defendant having appeared in the above-entitled action on the 16th day of January, 1888, and having failed to answer or demur to the plaintiff's complaint, and it appearing that said copartnership is insolvent, and a large number of creditors having filed claims for a pro rata distribution of the assets in the hands of the receiver, and also that certain creditors claim liens upon, or special rights in, the property in the hands of the receiver of this court, on motion of Jenkins, Winkler & Smith, plaintiff's attorneys, it is ordered that all persons who have filed, or who may file, claims against said James W. Vail & Co., on their claiming an equal distribution of the assets in the hands of the receiver, be admitted as parties for the purposes of their respective claims, and that all persons who claim to have any liens upon, or special rights in, any property in the hands of the receiver, and may desire to do so, may present their respective claims to this court by petition duly verified, serving a copy of the petition on the attorneys for the receiver; that the receiver have leave within twenty days to answer the same, and the same may thereupon be heard in this court, or as the court shall direct. It is further ordered that the receiver heretofore appointed be, and he is hereby authorized to bring suit within this state, or other states, for the purpose of recovering any demands due or assets belonging to said firm of James W. Vail & Co." The court afterwards denied the motion of Jacobson for leave to intervene and to vacate the order appointing a receiver. This order is dated March 28, 1888. The first appeal herein is by Jacobson from such order. On May 4, 1888, Jacobson made a motion that he be admitted as a party to the partnership action, and that the order of March 7, 1888, be vacated and set aside. On May 8, 1888, the court made an order denying such motion. From such last-mentioned order Jacobson also appeals. Turner & Timlin, for appellant. Jenkins, Winkler & Smith and H. C. Sloan, for respondent.

LYON, J., (after stating the facts as above.) The rules of law upon which these appeals must be determined are not difficult, and may be very briefly stated. The appellant, Jacobson, who claims a special lien upon a portion of the copartnership property in the hands of the receiver, has the right to intervene in the partnership action for the purpose of asserting such lien. But inasmuch as the property came into the hands of the receiver before he levied his attachment upon it, in order to successfully assert his claim and lien thereupon, it seems necessary that he should obtain a vacation of the order appointing the receiver. Hence he is entitled in some appropriate proceeding to attack the validity of such appointment. But a summary proceeding by motion is not the appropriate method of making such attack. This can only properly be done upon the petition of the party interested, setting forth the facts upon which he relies to obtain a vacation of the appointment. To such a petition the receiver, who is the officer of the court, and represents all parties adversely interested, may interpose an answer, and take issue upon any of the facts stated in the petition. The issue thus made is to be determined in the regular course of judicial procedure by a trial thereof, and a determination of the material facts involved. The order of March 7, 1888, provides that "all persons who claim to have any liens upon or special rights in any property in the hands of the receiver, and may desire to do so, may present their respective claims to this court by petition, duly verified, serving a copy of the petition on the attorneys for the receiver; that the receiver have leave within twenty days to answer the same, and the same may thereupon be heard in this court, or as the court shall direct." This order gives Jacobson, as well as all others similarly situated, the right to intervene in the partnership action, and to litigate therein any and all questions affecting his right to a paramount lien upon the property attached by him. It is scarcely necessary to add that noth