sald assignee indorsed on the back of said original assignment his acceptance of the trust, in writing, as follows: "I, Peter Hanson, the undersigned, named as assignee in the instrument of assignment of which the within and foregoing is a copy, do hereby consent to take upon myself the faithful discharge of the several trusts specified in said assignment, and that the within is a correct copy of the original. Dated Eau Claire, Wis., Jan. 9th, 1888. [Signed] PETER HANSON." Immediately after making this indorsement of his acceptance of the trust in said assignment and the delivery of his bond to the said commissioner, the said Hanson took possession of the stock of goods and merchandise assigned to him, and on the same day, at 2:15 o'clock P. M., said original assignment, with the said acceptance of the assignee indorsed thereon, and the said bond, were filed in the office of the clerk of the circult court of said county, and were marked "Filed" by said clerk, but, within a few minutes after so marking the same" Filed," they were taken from the files of the clerk and from his office, and were not returned to said office until 5 o'clock P. M. of said day. On the same day, and, as is claimed by the plaintiff, at 5 P. M., a true copy of said original assignment was also filed in said clerk's office, upon the back of which there was the written acceptance of the trusts specified in the assignment, and upon which there was also the following indorsement by the court commissioner, Bartlett, viz.: "I hereby certify that the within is a true copy of the original assignment, and of the whole thereof, made by Lewis G. Norgan to Peter Hanson on the 9th day of January, 1888, and that the said assignee named in said original assignment did in my presence make the indorsement thereon as required by section 1696 of the Revised Statutes of 1878. Dated Eau Claire, Wis., January 9th, 1888. M. D. BARTLETT, Court Commissioner, Eau Claire County, Wis."

The real question on the trial of this action turned upon the question whether the indorsement of the court commissioner upon the copy of the assignment which was filed in the office of the clerk of the court on January 9, 1888, was placed thereon at the time it was filed, on said 9th of January, or whether it was placed thereon after said date, and after all the attachents were levied upon the property in question. We think it is satisfactorily shown that such copy, with the indorsement of the commissioner thereon, was not filed until after the first attachment was levied, as was held by the learned circuit judge on the trial in the court below, and that the defendant was entitled to judgment for the amount of the debt in such attachment, unless it should be held that the assignment was so far perfected as to entitle the assignee to hold the assigned property, as against the creditors of the assignor, before filing any copy thereof in the office of the clerk, if such copy be filed within a reasonable time after the execution thereof. The exact time when this Indorsement was made on the copy of the assignment by the court commissioner was a disputed fact upon the trial, and

under the evidence it was a question of fact for the jury, and not one of law for the court.

Upon the hearing in this court, the learned counsel for the appellant contended that the filing of the bond of the assignee and a copy of the assignment, with the indorsements thereon, as required by sections 1695 and 1696, Rev. St., was not a condition precedent to passing the title to the assignee, and that the title passed to the assignee, as against the creditors of the assignor, upon the execution of the assignment, the acceptance of the trust by the assignee, and giving the bond as required by said section 1694, Id. Were this an original question in this court, and under the amendments to the assignment laws taking from the assignor the right to prefer any of his creditors by his assignment, there would be great force in the argument presented. We think, however, that the question is res adjudicata in this court; and we do not feel called upon to reverse our former decisions in the construction of these sections, although the later legislation has to some extent better secured the rights of creditors than formerly. In the cases of Scott v. Seaver, 52 Wis. 175, 8 N. W. Rep. 811; Wadleigh v. Merkle, 57 Wis. 517, 15 Ñ. W. Rep. 838; Clark v. Lamoreux, 70 Wis. 510, 36 N. W. Rep. 393; Farwell v. Webster, 71 Wis. 485, 37 N. W. Rep. 437, it is clearly held that the filing of the, bond and the copy of the assignment, with the proper indorsements thereon in the office of the clerk of the proper court, is a condition precedent to passing the title to the assignee as against the creditors of the assignor. Until the legislature sees fit to alter the rule, we must adhere to these decisions.

It was also urged that the filing of the original assignment, with the proper indorsements thereon, should be held a sufficient compliance with the statute. That question is not in this case, for two reasons: First, because what is claimed now to have been the original assignment was certified by the assignee to be a copy, and there was no certificate of the court commissioner that it was a true copy, or that the assignee had in his presence indorsed the same; again, it appears that the original was not left upon file, but was immelately removed from the files by the attorney of the assignee. Such a filing cannot be held to be a compliance with the statute. Holding, as we do, that the filing of the copy of the assignment, properly certified and indorsed, as required by sections 1695 and 1696, is necessary to complete the assignment, it is clear that the learned circuit judge was right in holding that the defendant was entitled to recover the amount of the debt in his first attachment.

As to the right of the defendant to recover for the amount of the other attachments, we must hold that the learned circuit judge committed an error in instructing the jury upon that question. As said above, the evidence as to when the copy, with the proper indorsement thereon, was on file, is conflicting, the plaintiff's testimony tending to show that the indorsements were on when it was filed, January 9, 1888; and the testimony for the defend

ant tends to show that, although the copy was filed on the 9th, the indorsement was not made thereon until a later date.

In regard to the attachments made after the 9th of January, 1888, the learned judge instructed the jury as follows, viz.: "The only question for you to determine is the subsequent attachments which were levied on the 11th and 12th, I think. This was after the filing of this copy, or the filing of this paper. And the only question for you to determine is, was that paper a complete paper, duly certified to by the court commissioner on or before the time that these attachments were levied? Plaintiff here claims that it was complete when filed at 5 o'clock. If that is so, it disposes of this case; but if it was an incomplete copy,-if the court commissioner did not certify to it on that afternoon, but went around and certified to it some subsequent time,-or if this was an incomplete copy when these witnesses that have been called examined it, if they are correct in saying it was an incorrect copy, until some time the next day,-then, so far as the subsequent attachments are concerned, the attachments of Sweet, Dempster & Co., and Farwell & Co., they would hold in preference to this assignment, because, if this assignment was not good at the time it was filed, it was not made good until after those attachments. I don't think it could be made good unless they filed a new paper; but, whether that is so or not, it was not made good until after these attachments were served." Again, the learned judge, in submitting to the jury the question whether the defendant was entitled to recover for the amount of the first attachment, or for the amount of all the attachments, says: "That depends upon whether or not this paper that was filed that day was a perfect copy, as it appears now,-a completed paper, as it is now. If it was, these second attachments can't hold,-the last two attachments. But if it was changed afterwards, and incomplete when it was filed, then it follows that all the attachments must hold, and you will find the defendant's interest amounting to $652.86. The effect of all the instructions to the jury is that if they find that the copy of the assignment filed on the 9th of January, at 5 o'clock P. M., did not have the certificate of the court commissioner indorsed thereon, required by section 1696, Rev. St., then although he may have indorsed such certificate thereon thereafter, and before the second and third attachments were levied, still such attachments would hold in preference to the assignment. In the view the learned court took of the case, if the copy filed on the 9th was imperfect, such imperfect copy could not be made perfect by making the proper indorsement thereon, and that, in order to make the assignment good, a new copy, with the proper indorsements thereon, must be filed. This view of the case we cannot sustain. If the imperfect copy may be aided so as to make the assignment good by the filing of a new copy, with the proper indorsements thereon, there is no substantial reason for holding that the imperfect copy filed may not be perfected, V.45N.w.no.4-21

and have the same effect in perfecting the assignment as to all persons who have not then obtained a lien upon the assigned property. This question was fully considered by this court in the case of Farwell v. Webster, 71 Wis. 485, 486, 37 N. W. Rep. 437. In that case a copy of the assignment, and the assignee's bond had been filed with the clerk of the court on the 26th of January, but the bond was imperfect for the reason that the sureties on the bond had not justified as required by law, and there were no proper certificates indorsed on the copy of the assignment. a Afterwards the bond and copy of assignment were taken from the files of the court. A new bond was given, and the proper certificates indorsed upon a copy of the assigmnent; and they were filed with the clerk on the 29th of January. This court held that the assignment was good as to all persons claiming any interest in the assigned goods by garnishee proceedings commenced after the 29th of January. The chief justice, in his opinion, says: "The assignment was good to transfer the title to the property notwithstanding the defects in the execution of the assignment as originally made; for, while the statute provides that the bond 'shall, immediately after its execution, together with a full and true copy of the assignment,' be filed, by the officer taking the same, in the office of the clerk of the circuit court, yet this language must have a reasonable construction, and was not intended to prevent or preclude the assignee from perfecting his bond, without unreasonable delay, when he had failed to comply with some requirement of the statute in the first instance. * * Had the rights of the plaintiff intervened before a good bond was executed and filed, a different question as to the liability of the garnishee would be presented." Certainly as liberal a rule should apply to the filing of the copy of the assignment, with the proper indorsements thereon, as to the bond, so far as the assignee is concerned. The bond is a matter which he must give, and be personally responsible for its sufficiency, under the statute. The indorsements upon the copy of the assignment is a duty imposed upon the court commissioner, and over which the assignee has no direct control. When the assignee has given the bond required by the statute, delivered it to the court commissioner, and has indorsed upon the copy of the assignment his acceptance of the trust conferred on him therein, and the assignment has been delivered to him, he has done all he is required to do personally, in order to make a good assignment; and it then becomes the duty of the officer before whom the assignment is made to file the bond, with a true copy of the original, having indorsed thereon the acceptance of the trust by the assignee, and his certificate that the same is such true copy. This was all done on the 9th of January, 1888, as early as 5 o'clock, P. M. The only thing claimed to be lacking in order to make the assignment a valid assignment was the want of the certificate of the court commissioner, required to be indorsed thereon by him by section 1696, Rev. St. Admitting

the highway. He testified, in effect, that there was a portion of an old fence and a hedge-row some two rods west of that west line; that the balance of the 40, after thus taking out the 30 acres, contained about 10% acres; that he did not know exactly how much the 40 overrun; that it was 34 links east and west, and 22 links north and south. In another part of his testimony he said the 40 overrun just threequarters of an acre. Of course, the strip of 2 rods in the highway made an acre, or a very little over. The deed to the defendant in the spring of 1858 described just 30 acres, and the deeds to the plaintiff subsequently described just 10 acres. Strictly construed, they left the title to a narrow strip in the father of the parties. It was the manifest purpose of the father to dispose of the whole 40. Upon his deeding to the defendant in the spring of 1858, a partition line was established by and between them, and a partition fence built and maintained by them thereon. The plaintiff claims under a deed from his father, executed more than 14 years after such partition line had thus been established. That deed only purported to convey to the plaintiff 10 acres of land. Whether the east line of that 10 acres would have been east of the partition line thus located and established is not clear from the testimony. Under the evidence in the record, we are unable to say that the partition line thus located and established was not the true partition line. Since the father was bound by such location and establishment, we are inclined to think that the plaintiff, thus claiming under him, is also bound. Pickett v. Nelson, 71 Wis. 546, 37 N. W. Rep. 351; Culbertson v. Duncan, (Pa.) 13 Atl. Rep. 966; City of Bloomington v. Association, 126 Ill. 221, 18 N. E. Rep. 298; Anderson v. Jackson, 13 S. W. Rep. 30. In the case at bar, however, it is conceded that the strip of land described in the complaint includes a strip of land west of the partition line so located and established; and one of the conclusions of law is that the defendant is the owner and entitled to the possession of the strip of land thus described; and the judgment adjudges that the defendant is the owner of the same in fee-simple, and is lawfully entitled to the possession thereof. For this clerical error the judgment cannot be allowed to stand. The judgment should give the respective parties the title and possession of the land up to the line so located and established. The judgment of the circuit court is reversed, and the cause is remanded, with directions to enter judgment as above indicated, and dismissing the plaintiff's complaint.

(76 Wis. 499)

MCCRACKEN V. VILLAGE OF MARKESAN. (Supreme Court of Wisconsin. April 8, 1890.) DEFECTIVE STREET-CONTRIBUTORY NEGLIGENCE.

1. In a suit for personal injuries caused by falling upon a defective sidewalk, several witnesses testified that plaintiff was intoxicated at the time, which he denied. Held proper, on cross-examination, to allow the question, "Are you not habitually in the habit of getting drunk?" as tending to show that he was drunk at the time.

2. Where the jury found that one using ordinary care could pass over the sidewalk without danger, the testimony of nine witnesses that plaintiff was drunk at the time is sufficient, against his denial, to support a finding of contributory negligence.

Appeal from circuit court, Green Lake county.

Waring, Eichstaedt & Niskern and T. W. Spence, for appellant. Gabe Bouck, for respondent.

ORTON, J. The plaintiff, while passing along on the sidewalk of one of the streets of said village, slipped and fell, either on the sidewalk, or in trying to avoid the defect therein, in consequence of the defective condition of said walk by reason of the accumulation of snow and ice thereon, and was badly injured. As a part of their special verdict, the jury found that “the defendant was guilty of negligence in not keeping the sidewalk in proper condition, and that such defective condition had existed so long that the defendant ought to have known it. But, on the other hand, the jury found also that "the plaintiff was guilty of a want of ordinary care and prudence, which directly contributed to the injury," and that "the plaintiff, at the time he received the injury, was so intoxicated as to be incapable of managing and conducting himself with ordinary care and prudence," and that "this incapacity of managing and conducting himself with ordinary care and prudence, by reason of such intoxication, contributed to the injury," and that "the plaintiff did not fall by reason of the rough and uneven condition of the sidewalk." On the special verdict the court rendered judgment for the defendant, defendant, dismissing the complaint. There were many exceptions taken by the appellant to the admission and rejection of evidence, and to the instructions given and refused, but there was only one exception relating to the contributory negligence of the plaintiff. If there was testimony that warranted the jury in finding that the plaintiff's negligence and intoxication contributed to his injury, he could not recover, whatever the evidence, instructions, or exceptions relating to other matters may be. The only questions to be considered are therefore: (1) Whether there was evidence to sustain such findings; and (2) whether there was improper testimony admitted on that question against the objection of the appellant. The jury found that the sidewalk was in such a condition that a person using ordinary care and prudence could walk over the same without danger of falling down. The testimony of nine different witnesses was that the plaintiff was intoxicated at the time. There was therefore sufficient evidence to warrant the jury in finding that the plaintiff's negligence and intoxication contributed to his injury, and that is sufficient on the first point. The only testimony that was received against appellant's objection on that subject was upon cross-examination of the plaintiff himself. He had testified that "he was not drunk at the time, that he knew of, and had not been drinking that afternoon, to his recollection." He was then asked by