Duffy vs. Hickey.

the plaintiff for said five months. This, also, is a simple question of fact. There is evidence sustaining the plaintiff's claim and the finding of the referee; and the decision of the referee and court on this question of fact must stand.

It is insisted that the referee found that the defendant had performed services for the plaintiff of the value of $202.35, and then disallowed the whole claim on the ground that the defendant had agreed to perform the services upon a special contract for a greatly less sum. We find nothing in the report of the referee which justifies the claim that he found the value of such services to be $202.35 or any other sum. All that can be justly said of the report in this respect is that it states that the defendant claimed $202.35 for said services, and that the referee allowed him for the same only the value of half the wool and half the lambs of some sheep belonging to the plaintiff, which he claimed was, by agreement, the compensation the defendant was to have for such services.

It is also urged as error that the plaintiff was allowed to give some evidence in reply, which it is claimed ought to have been given in opening his case. There may be some doubt whether the evidence given in reply was not strictly such; but, if it were otherwise, it is a matter in the discretion of the trial court to permit such evidence to be given out of the proper order, and, unless the opposite party can. clearly show that he has been injuriously prejudiced by the admission of such evidence out of its proper order, it is not error for which the judgment should be reversed.

It is also said that evidence of statements made by the defendant at an attempted settlement were improperly admitted in evidence on the part of the plaintiff. We find nothing in the case upon which this objection can be fairly based. If improper evidence had been received by the referee, it would be no ground of reversal if there was suffi

Ring vs. Devlin and another.

cient evidence to sustain his findings which was properly admitted in the case. Holendyke v. Newton, 50 Wis. 635.

The objection to the taxation of costs was perhaps well taken. This was an action upon contract, and in such cases the prevailing party cannot recover to exceed $25 as attorney's fees in any case. See sec. 2921, R. S. 1878. The court taxed more than $25 as attorney's fees, but afterwards, and before the appeal was taken in this case, the plaintiff remitted, in writing filed with the clerk of the court, the excess over $25, and gave notice of such remittance to the defendant. The judgment ought not, therefore, to be reversed because the costs were originally taxed at too large The remission of the excess before the appeal was taken cured the error.

a sum.

The objection that one of the items in the copy of the bill of costs served was a gross sum which had been taxed to the plaintiff on a former trial, was not such an error as prejudiced the defendant. It is to be presumed that he had notice of the items of that bill when it was originally taxed on the former trial, and it was unnecessary to serve the items again on the final taxation on the new trial.

On the whole, the case seems to have been very fully and fairly considered, both by the referee and the court. By the Court.-The judgment of the county court is affirmed.

RING, Appellant, vs. DEVLIN and another, Respondents.

Officers: Superintendent of county asylum: Reward for return of

escaped lunatic.

The overseer or superintendent of a poor-house and county asylum cannot recover the reward offered for the return of an insane person, who has escaped from another asylum and has been placed,

Ring vs. Devlin and another.

by the authorities of a town into which he wandered, in the asylum of which such overseer has charge; and a promise to pay such reward to him, and a guaranty of such promise, are without consideration.

APPEAL from the Circuit Court for Fond du Lac County. The facts are sufficiently stated in the opinion.`

For the appellant the cause was submitted on the brief of C. S. Matteson.

Alex. Wilson, for the respondents.

ORTON, J. The complaint states substantially the following facts: In 1881 the respondent Edward Devlin was appointed by the county judge of Iowa county guardian of one Frank J. Rowe, an insane person, resident of said founty, and sometime thereafter, and previous to the 3d day of December, 1885, he placed said insane person in the Milwaukee county insane asylum at Wauwatosa, for treatment and safe-keeping, and at said last-mentioned date said insane person escaped therefrom and could not be found or his whereabouts ascertained. On the 17th day of December thereafter the said Devlin published in the Milwaukee Sentinel an offer of a reward of $300 to any person who would return said insane person to said insane asylum, and gave a description of his person. On the 12th day of December, 1885, an unknown demented person was sent to the Fond du Lac county poor-house by the authorities of the town of Metomen, of said county, and the appellant, the plaintiff in this suit, was at the time the overseer of said poor-house and county asylum of the county of Fond du Lac, and he wrote numerous letters to the authorities of insane institutions in different parts of the state, describing said insane person, with a view of locating his proper abode. On the 18th day of December, 1885, R. M. Wigginton, the superintendent of the Northern Hospital for the Insane, in Winnebago county, wrote to the plaintiff in

VOL. 68-25

Ring vs. Devlin and another.

response to a former communication from him, and enclosed a postal card, signed by the defendant Edward Devlin, eontaining the offer of said reward of $300 for the return of said insane person as aforesaid, and an accurate description of his person, and on the 21st day of said month the plaintiff returned said insane person to the said Wauwatosa asylum, and the said defendant Devlin on the same day promised to pay the plaintiff said reward, but on a subsequent demand he has refused to do so. On the 19th day of said month of December the defendant Louis A. Lange guarantied the payment of said reward to the plaintiff upon the delivery of said insane person to said Wauwatosa hospital. The plaintiff was put to great trouble and expense in locating and so delivering said insane person. Judgment for said $300 and costs is demanded. To this complaint the circuit court sustained a demurrer, presumably on the ground that it did not state facts sufficient to constitute a cause of action, and this appeal is taken from said order.

66

The complaint is very indefinite, vague, and uncertain as to the legal character of the institution, called in the first place a "poor-house," and in the second place a "poor-house and county asylum," and as to the name and duties of the officer in charge of it, who is called in the first place overseer of the poor-house," and in the second place" overseer of the poor-house and county asylum," and, in the brief of plaintiff's counsel, "superintendent and keeper of the poor-house and asylum." It cannot be known by the complaint what particular official relations the plaintiff bore to this insane person, or what his special duties were as his keeper in the institution under his charge. In deciding. therefore, upon the question whether the complaint states a cause of action, we must do so upon probabilities and legal presumptions mainly, and in view of the statutes which govern a poor-house as such, and an insane asylum as such, of the county of Fond du Lac, and which prescribe the

Ring vs. Devlin and another.

duties of the officer specially and personally in charge of either one or the other. We shall not cite the particular statutes upon the subjects, but assume what their effect must necessarily be in application to the facts stated in the complaint. We shall therefore assume (1) that the authorities of the town of Metomen, of Fond du Lac county, had lawful authority to transfer this insane person to the county poor-house or asylum; (2) that he was thereafter to be safely kept and properly cared for in said institution, until he was discharged therefrom or transferred to the Wauwatosa hospital by lawful authority and according to law; (3) that the plaintiff, as the officer in charge of said poorhouse and said insane person therein, had lawful authority to hold, keep safely, and detain said insane person within said institution, and discharge such duties in relation to him therein as the law prescribes; (4) that this insane person could not be discharged, let out, or so transferred, except in some way and manner prescribed by law, of which a record is presumed to have been duly kept; (5) that the plaintiff, as such officer and keeper, must in all cases act not only officially but most strictly according to law in letting out, discharging, or transferring such insane person, and be able to justify the same by law and by his record; (6) that the plaintiff had no right as such keeper to allow any private person, without some legal authority or direction, to let out, release, discharge, or transfer such insane person from said institution, or aid, counsel, advise, or abet the same; (7) that said plaintiff, while so in charge of said institution and said insane person therein, as overseer or keeper thereof, had no right to enlarge, release, discharge, or transfer said person from the same as a mere private person, or unofficially; (8) that said plaintiff, either officially or unofficially, had no right to the custody of said insane person, or to take or carry him from place to place, or hold or take care of him outside and beyond the lawful limits of said institution, without