Disotell vs. The Henry Luther Co. timony given upon the trial. In the absence of such certificate, the presumption is that every fact within the issue and essential to support the judgment was proved upon the trial. Lee v. Campbell, 77 Wis. 340. So there can be no review of the case upon the testimony here, nor any inference inconsistent with the verdict drawn. Morrow v. Lander, 77 Wis. 77. Sufficient of the testimony is preserved in the bill of exceptions to show that there was testimony tending to prove all the facts essential to support the plaintiff's judg ment. But the defendant sees a fatal error in this instruction, which the court gave to the jury: "The testimony shows that this boy [the plaintiff] was eighteen years old,— nearly nineteen. It is claimed on the part of the plaintiff that he was a boy of tender years and therefore the same degree of care and discretion is not to be expected of him as would be of an adult or grown-up person. It is claimed on the part of the defendant, on the other hand, that although he was a minor he had arrived at such an age of discretion that he had, practically, the same discretion, and should be held to the same rule of care and prudence, as if he were an adult or person of mature age. Now this is a question which belongs entirely to you to determine. You have seen him on the witness stand and heard him testify. You must judge of his intelligence and capacity, and how much, if any, allowance should be made for his youth." This is construed by defendant's counsel to be, in effect, an instruction to the jury that they might consider the appearance of the plaintiff, as he had been exhibited before them on the witness stand, in determining the question of his intelligence and capacity to apprehend and avoid the dangers incident to his employment. It seems to be capable of that interpretation. The jury may have so understood it. With that interpretation, defendant's counsel considers it plain error. But Hermann v. State, 73 Wis. 248, seems to Disotell vs. The Henry Luther Co. be a strong case in point to sustain the instruction. And that was a criminal case, where, if anywhere, full proof is required. The questions were as to a young woman's age, and the impression, in that respect, which her appearance should have made upon the defendant. It was held competent for the jury to give weight to their own observation of the young woman in court, during the trial, in the determination of these questions. No case in conflict with this view has been found. The question to be decided in the instant case was not an expert question to be decided upon the testimony of expert witnesses. It was a matter of common knowledge and observation. It was not susceptible of proof by opinion evidence. The jurors, having had observation of the plaintiff, were as competent to form an opinion of his intelligence and capacity, as related to the matter under investigation, as other witnesses would be. Much that is said by way of argument in Washburn v. M. & L. W. R. Co. 59 Wis. 364, seems to support this view. But the question involved in that case was an expert question to be decided upon the testimony of witnesses having peculiar knowledge of the matter involved. This was the value of lands condemned for railway purposes. The court held that, while for many purposes it was competent for the jury to act upon the knowledge which they had obtained from a view of the premises, yet on this question of the value of the lands they were bound by the testimony of the witnesses who had peculiar knowledge and were experts upon the question. It does not seem, in any way, to conflict with Hermann v. State or the cases which support it. The instruction was not error. Several alleged errors set out in the brief of counsel for the defendant, but not urged upon the argument, are found to be unimportant and are not considered at length. By the Court. The judgment of the circuit court is affirmed. Nicholson vs. Coleman and another. 90 639 95 507 NICHOLSON, Appellant, vs. COLEMAN and another, Respond- 90 639 ents. September 5—September 26, 1895. Waste: Cutting of timber by mortgagor: License: Evidence. 1. In an action by a mortgagee to restrain waste by the mortgagor, the evidence is held to support findings of the trial court that the mortgagor had a license, given both before and after the mortgage was delivered, to cut the wood from the premises, and that no waste other than such cutting had been committed. 2. In such action, evidence of the removal of personal property which had been sold with the land by the mortgagee to the mortgagor but was not covered by the mortgage, was properly excluded. APPEAL from a judgment of the county court of Winnebago county: C. D. CLEVELAND, Judge. Affirmed. Action to restrain waste. The facts are stated in the opinion. The plaintiff appeals from a judgment dismissing the complaint. B. E. Van Keuren, for the appellant. For the respondents the cause was submitted on the brief of J. S. Maxwell. MARSHALL, J. The facts necessary to present the questions raised are substantially as follows: In October, 1893, Henry W. Nicholson, appellant, sold to Daniel B. Coleman, one of the respondents, a farm, together with some personal property, consisting principally of live stock and crops raised on the farm, and machinery, for the sum of $10,000, and paid on such purchases in cash $3,700. For the balance the vendee gave promissory notes, secured by a mortgage on the farm. Subsequently Frank Hurd, while in possession of the mortgaged premises under Coleman, and by his authority, before any payment had been made on the notes, cut therefrom ninety cords of wood, worth $180, which wood was standing piled on the land at 99 652 Nicholson vs. Coleman and another. the time of the trial. Some other acts were done by the respondents alleged to constitute waste. At the time of the commencement of the action the security was worth about $7,800, and the amount due on the notes and mortgage was somewhat less. The trial court found that Coleman had a license to cut the wood from the mortgaged premises, and apply the proceeds from a sale of the same on the notes; and that no waste had been committed, other than the cutting of wood under such license. Appellant's counsel challenges such findings, but they must be sustained unless contrary to the clear preponderance of evidence. Bacon v. Bacon, 33 Wis. 147; Tallman v. Fitch, 49 Wis. 197; McDonald v. Estate of Kelly, 70 Wis. 108; Carroll v. Little, 73 Wis. 52. We think the evidence supports the findings excepted to, and shows that Coleman had a license to cut the wood, given both before and after the mortgage was delivered. The evidence to show that personal property included in the sale to respondent had been removed from the farm was properly excluded. The mortgage did not cover such property; therefore its removal could not, in any event, constitute waste. If follows that the judgment dismissing the complaint was clearly proper and should be affirmed. By the Court. The judgment of the county court is affirmed. INDEX. ABANDONMENT. Of easement. See DEEDS, 2. Of homestead. See HOMESTEADS. ACCOUNTS of executors, etc. PARTNERSHIP. See ESTATES OF DECEDENTS, 2-5, 9. ACTION. Cause of Action. See AGENCY, 5. CONTRACTS. CORPORATIONS, 1. DEBTOR By whom to be brought - Who may maintain. See DEBTOR AND CRED- Leave of court, when necessary? See SURETYSHIP, 1. Conditions precedent. See DEBTOR AND CREDITOR, 7-9. HIGHWAYS, 3. Limitations. See ADVERSE POSSESSION. CORPORATIONS, 4. LIMITA- Bar of another action. See PLEADING, 4. Continuance. See PRACTICE, 3. Settlement. See VOLUNTARY ASSIGNMENT, 7. At law or in equity? See DEBTOR AND CREDITOR, 7-9. TRUSTS, 5 Against a County. To recover moneys illegally collected as taxes, 355. Ejectment, 151. Certiorari to review proceedings in special election, 157. Against a Town. For personal injuries from defective highways, 22, 25, 57, 130, 337. VOL. 90-41 |