The Senour Mfg. Co. vs. Clarke.

and that while he incurred indebtedness to a large amount in the name of, and on account of, the corporation, he treated its assets as individual property, regardless of the rights of creditors to have the same applied in payment of their claims. The effect of such conduct on the part of the president of the corporation being naturally to defraud its creditors, we are unable to say that the trial judge did not draw the correct inference therefrom, in finding that such was the president's intent, and that he had both disposed of, and was about to dispose of, property of the corporation to effect it.

It is said by appellant's counsel that the acts of Sheasby cannot be charged to the corporation, as corporate acts. Such contention cannot be sustained. This court has repeatedly held that, where the president of a corporation is apparently clothed with full power to conduct its business and control its affairs, the public may rely upon his apparent authority so to do, and the corporation will be bound to the same extent as though such officer were specially authorized by a duly-recorded vote of the board of directors. In a case like this, where the officer whose conduct is called in question is shown to be the owner of substantially all the stock, and the only one pecuniarily interested in the corporation, the rule stated is peculiarly applicable, and should be firmly adhered to. Ford v. Hill, 92 Wis. 188; McElroy v. Minn. Percheron Horse Co., ante, p. 317.

By the Court. That part of the judgment appealed from is affirmed.

Wheeler vs. Clarke. Pelton vs. Powell.

WHEELER, Respondent, vs. CLARKE, Assignee, Appellant.

May 22-June 11, 1897.

Senour Mfg. Co. v. Clarke, ante, p. 469, followed,

APPEAL from a judgment of the circuit court for Dane county: R. G. SIEBECKER, Circuit Judge. Affirmed.

For the appellant there was a brief by Erdall & Swansen, and oral argument by John L. Erdall and Sam. T. Swansen.

For the respondent there was a brief by Lewis, Briggs & Dudgeon, and oral argument by H. M. Lewis and M. S. Dudgeon.

MARSHALL, J. This appeal involves the same question presented in Senour Mfg. Co. v. Clarke, ante, p. 469, and is ruled by the decision in that case.

By the Court. That part of the judgment of the circuit court appealed from is affirmed.

PELTON, Appellant, vs. POWELL, Respondent.

May 24-June 11, 1897.

Counterclaim in action for tort: Assault and battery.

Under secs. 2655, 2656, R. S. (providing that a defendant may plead as a counterclaim a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action "), the defendant in a civil action for assault and battery may set up as a counterclaim a cause of action for a prior assault committed upon him by the plaintiff, in defending himself from which the defendant committed the assault for which the action was brought.

APPEAL from an order of the circuit court for Sauk county: R. G. SIEBECKER, Circuit Judge. Affirmed.

Pelton vs. Powell..

The facts are stated in the opinion.

For the appellant the cause was submitted on the brief of G. Stevens.

For the respondent there was a brief by Olin & Butler, and oral argument by W. W. Allen. To the point that a counterclaim for tort, in a tort action, may be set up provided it answers the other requirements of the statute, they cited Phillips, Code Pl. § 251; Bliss, Code Pl. § 372; Slone v. Slone, 2 Met. (Ky.), 339; Heigle v. Willis, 50 Hun, 588; Glenn & II. Mfg. Co. v. Hall, 61 N. Y. 226; Carpenter v. Manhattan L. Ins. Co. 22 Hun, 49; S. C. 93 N. Y. 552; Chamboret v. Cagney, 2 Sweeney, 378; Brown v. Buckingham, 21 How. Pr. 190; Xenia Branch State Bank v. Lee, 2 Bosw. 694; Grange v. Gilbert, 44 Hun, 9; Bitting v. Thaxton, 72 N. C. 541; Walsh v. Hall, 66 id. 233; Tinsley v. Tinsley, 15 B. Mon. 454; Branch v. Chappell, 119 N. C. 81; Barholt v. Wright, 45 Ohio St. 177, 181; Lee v. Eure, 93 N. C. 5, 9; Green v. Parsons, 14 N. Y. St. Rep. 97; Ainsworth v. Bowen, 9 Wis. 348; Gilbert v. Loberg, 86 id. 661; McArthur v. Green Bay & M. Canal Co. 34 id. 139.

CASSODAY, C. J. This action was brought to recover damages for assault and battery alleged to have been committed upon the plaintiff by the defendant, June 15, 1896, and the complaint simply sets forth that cause of action and demands judgment for the damages claimed. After alleging that, just before the assault mentioned in the complaint, the plaintiff assaulted the defendant, the answer, by way of counterclaim, alleges, in effect, that June 15, 1896, the plaintiff, with force and arms, unlawfully and maliciously made an assault upon the defendant, and did beat, bruise, pound, and ill-treat him, so as to cause him to be sick, sore, and lame, and inflicted great suffering upon him, to his damage in the sum of $1,000, and that during the affray the defendant, in the necessary defense of his own person, struck

Pelton vs. Powell.

the plaintiff, but used no more force than was necessary to protect himself from continued violence of the plaintiff, and that the blow so struck by the defendant in self-defense is the same assault and battery complained of in the complaint. To such counterclaim the plaintiff demurred upon the ground and for the reason that the same was not pleadable as a counterclaim in the action. From the order overruling such demurrer the plaintiff brings this appeal.

counterclaim

Eliminating from our statutes what is inapplicable to the case at bar, and they provide, in effect, that an answer may contain "a statement of any new matter constituting a in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of a cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action." R. S. secs. 2655, 2656. Counsel contends that the word "transaction" should be construed to apply only to such transactions "as are in the nature of contracts," if not strictly contracts. But the manifest purpose of the statute was to allow parties to the same suit to settle in such suit, as far as convenient and practicable, all controversies arising out of the same contract or transaction set forth in the complaint, or connected with the subject of the action. Such is, in effect, the construction which this court has repeatedly put upon the statutes. Vilas v. Mason, 25 Wis. 310; McArthur v. Green Bay & M. Canal Co. 34 Wis. 139; Gilbert v. Loberg, 86 Wis. 661; Collins v. Morrison, 91 Wis. 324. The provisions of the statutes quoted manifestly do not limit counterclaims to causes of action arising out of contracts or transactions in the nature of contracts. If additional authorities are wanted in support of this proposition, they can be found in the brief of the learned counsel for the defendant. We must hold that the counterclaim was properly pleaded in this action.

By the Court. The order of the circuit court is affirmed.

96 476

100 547

Strong and others vs. Gordon and others.

STRONG and others, Appellants, vs. GORDON and others, Re

spondents.

May 24-June 11, 1897.

Creditors' action: Trusts: Construction of statute.

1. G. purchased land with P.'s money, took title in his own name with P.'s consent, and gave P. written declarations that P. owned the land and that he held the title in trust for him, but such declarations were not recorded, and most of them were not entitled to record. Plaintiffs extended credit to G., knowing that he had title to the land but not relying on his ownership thereof. Neither G. nor P. represented that G. owned the lands, nor did P. know that G. was contracting debts. G. conveyed the lands to P., who throughout the entire transaction acted in good faith and without intent to defraud plaintiff or any other person. Subsequently plaintiffs obtained judgment against G. Held, that the land could not be subjected to the lien of the judgment by a creditors' action. 2. Sec. 2090, R. S. (providing that when an express trust is not created by the conveyance to the trustees "such conveyance shall be deemed absolute as against subsequent creditors not having notice of the trust," etc.), applies only to the express trusts authorized by sec. 2081, S. & B. Ann. Stats., not to mere passive or dry trusts.

APPEAL from a judgment of the circuit court for Dane. county: R. G. SIEBECKER, Circuit Judge. Affirmed.

This is an action in the nature of a creditors' bill, brought by the plaintiffs, who are judgment creditors of the defendant Gordon, to subject about 260 acres of farm lands, conveyed by Gordon to the defendants Peck, September 8, 1890, to the lien of the plaintiffs' judgment, on the ground that the plaintiffs gave credit to Gordon, while he held the title to said lands, upon the faith of his apparent ownership thereof.

The action was tried before the court, and the court found, in effect: (1) That the plaintiffs obtained their several judgments against defendant Gordon in September, 1890, and that executions were thereafter issued thereon and returned unsatisfied. (2) That between March, 1882, and December, 1888, the defendant Gordon purchased of various persons