1886, and to pay for all repairs sold, in cash, at such time of settlement. Said machines were to be delivered by the plaintiff on the cars at Milwaukee, and Lomas was to pay all freight and charges on the same. The machines were

to be sold in Grant county only. A discount was to be allowed by the plaintiff on all cash paid by October 1st; and if the whole account was then paid in cash, 10 per cent. discount was to be allowed. Lomas therein agreed to settle for all machines, drawing notes to the order of the plaintiff, and on their blanks, and to sell as per plaintiff's printed warranty, so that the test would be a matter of fact, not of choice. The plaintiff therein agreed to furnish all posters, circulars, and pamphlets free of charge, save the transportation on the same, and Lomas was to distribute the same. No deductions or promises were to be allowed save those mentioned in that contract; and the plaintiff was not to be held liable-in case of fire, or should the demand exceed the production-in case it could not fill orders sent it. The contract also contained this clause "Any machines, extras, or notes, taken for machines on hand, are such that the title and right of ownership do not pass from the * * * [plaintiff] until this account is paid in full." The plaintiff also therein reserved the right to revoke the contract at any time it deemed itself insecure, and take possession of said machines and extras.

The court charged the jury, in effect, that whatever machinery Lomas had received from the plaintiff under the contract, and not paid for at the time of the attachment, was, as between it and Lomas, the property of the plaintiff; that the proof showed that the contract was not filed before the attachment, as required by section 2317, Rev. St. That section provides that “no contract for the sale of personal property, by the terms of which the title is to remain in the vendor, and the possession thereof in the vendee, until the purchase price is paid or other conditions of sale are complied with, shall be valid as against any other person than the parties thereto and those having notice thereof, unless such contract shall be in writing, subscribed by the parties, and the same or a copy thereof shall be filed in the office of the clerk of the town, city, or village where the vendee resides," etc. Exception is taken because the court, in effect, submitted to the jury the question whether, at the time of levying the attachment, the defendant knew of, or had reasonable cause to believe in, the existence of such contract, or that Lomas was not at the time the owner of such machines. The court also charged, in effect, that, in making the attachment, the sheriff acted, in a sense, as the agent of the Milwaukee Harvester Company, and any notice the company, or its authorized agent in the matter of said suit, might have had at the time of the attachment, would be notice that would bind the defendant as such sheriff. There can be no question that the charge was sufficiently favorable to the plaintiff, if the contract was "for the sale of personal property" upon the condition named in the section, and we are clearly of the opinion that it was. The contract being of the nature indicated, and not having been filed as required by the statute, the title to the seven Rawson machines mentioned must be conclusively presumed to have been in the vendee, Lomas, who was still in possession at the time of the levy of the attachment thereon in favor of his creditors, having no such notice as is mentioned in the section. Kimball v. Post, 44 Wis. 476. The evidence sustains the verdict of the jury, and the verdict conclusively negatives the existence of any such notice. The judgment of the circuit court is affirmed.

THOMAS and others v. RICHARDS.

(Supreme Court of Wisconsin. November 1, 1887.)

1. SALE-CONDITIONAL-FAILURE TO RECORD-ATTACHMENT-NOTICE TO SHERIFF-PROVINCE OF JURY.

Plaintiffs claimed title to certain attached property under a written contract of sale, by the terms of which the property was to remain in them until paid for. The

proof showed that the contract was not filed as required by the statute, and the court submitted to the jury the question whether at the time of levying the attachment the defendant, a sheriff, had notice of such contract. Held, not error.

2. SAME-FINDING COPY OF CONTRACT AT TIME OF LEVY.

The court instructed the jury that to charge the sheriff with notice, they must find that he knew, either that the machines had been shipped under the contract and not paid for, or that he had reasonable cause so to believe. The only notice disclosed by the evidence was, in effect, that in executing the attachment a copy of the contract was found. Held, that such discovery at such a time is not such notice as would defeat the attachment, and the error, if any, in the instruction, was immaterial.

3. SAME-NOTICE TO SHERIFF NOT SUFFICIENT.

Notice of such conditional sale, if the contract is not filed as required by law, to be effectual as against an attaching creditor, must be brought home to the creditor, and not merely to the sheriff who makes the levy.

4. ATTACHMENT-SERVICE OF PAPERS-WAIVER BY ABSCONDING FROM STATE.

A defendant in attachment waives service of copies of the writ, atidavit, undertaking, and inventory, by absconding from the county and state.

Appeal from circuit court, Grant county.

Among the machines attached by the defendant herein as sheriff of Grant county, by virtue of the attachment mentioned in the statement of the case of Manufacturing Co. v. Richards, ante, 40, decided herewith, were 33 sulky hay rakes and two Thomas hay tedders, alleged to be the property of the plaintiffs herein, doing business at Springfield, Ohio, under the firm name of J. H. Thomas & Sons, and of the value of $700, and wrongfully taken and wrongfully detained by the defendant; which rakes and tedders were received by Lomas from the plaintiffs under the contract hereinafter mentioned, and for the recovery of which, and damages for such detention thereof, this action is brought, and, in case a recovery of said rakes and tedders cannot be had, then additional damages to the amount of their value. The sheriff justified under said attachment. The sheriff's return in the attachment suit as to the service of the summons and complaint is to the effect that he served them on the defendant herein, Thomas L. Lomas, on August 26, 1886, "by leaving a true copy thereof at his last usual place of abode, in the presence of S. W. Rogers, a member of his family, he being a person of suitable age and proper discretion, to whom ⚫he informed its contents at Fennimore' aforesaid;" "said Lomas, after due and diligent search, not being found in" said "county, or within the state of Wisconsin." The contract between the plaintiffs herein and Lomas was in writing, dated February 23, 1886, and is to the effect that said plaintiffs therein bargained and agreed to sell to Lomas, on the conditions therein named, the several machines therein described, to be delivered on the cars at Springfield, Ohio, between January 1, and June 15, 1886, at the respective prices named, with interest at the rate of 7 per cent. after due-discount for cash, 1 per cent. per month between May 1, and September 1, 1886; but failure to ship between said dates, unless machines have been otherwise ordered, by letter or in person, by Lomas, and reasonable time allowed for such shipment, is not to release him from his obligation to take them. Said machines were warranted to be made of good materials, and to do good work when properly set up and adjusted and used according to directions. If any part of said machines proved defective, the plaintiffs were to have the right to replace them, and no machine was to be condemned on account of such defect if the same be made good. Lomas agreed to examine the machines on arrival, and to notify the plaintiffs if there should be any shortage or defective parts, and give reasonable time to replace them, or the plaintiffs were not to be held responsible for any shortage or defects. Lomas agreed to see that all machines sold by him were properly set up and operated as per directions when started to work, and be governed by instructions on the back of the contract. Lomas agreed to receive the machines on arrival, pay freight and charges thereon from the factory, and take proper care thereof; and, in case of neglect or re

fusal, the plaintiffs were at liberty to take the care of, and control over, the same, to avoid damage, injury, or loss, and hold them on storage for Lomas, or dispose of them to the best advantage; but without releasing him from his obligation to pay for the same as therein provided, and from any loss, damage, or expense the plaintiffs might sustain, or be put to, in looking after, taking care of, or reselling the same by reason of the neglect or refusal of Lomas to carry out his agreement therein made. Lomas agreed to make all reasonable effort to sell said machines, and not take the agency, nor in any way become interested in the sale, of other sulky rakes or hay tedders. Lomas agreed that the title to, and ownership of, all machines shipped under the contract, should remain in, and their proceeds in case of sale be the property of, the plaintiffs, and subject to their order until full payment should be made for the same by Lomas to their acceptance; but without in any way releasing Lomas from making payment as agreed. The plaintiffs therein reserved the right to revoke the contract at any time, if Lomas failed to discharge any obligations thereby entered into, or if they had reason to believe Lomas unable to perform them; and without being liable to Lomas for damages by reason of such revocation; and upon such revocation all the indebtedness of Lomas should then be due. Lomas agreed to give his note to the plaintiffs for said machines whenever so requested after shipment, but final and entire settlement to be made by September 1, 1886. If Lomas found he had more machines than his trade required when the retail selling season came, and if at his desire the plaintiffs should order away any machines, Lomas was to ship them promptly, in good order, and complete, as directed by the plaintiffs, free and clear of all freight and charges whatsoever; but nothing therein was to be construed as obligating the plaintiffs to order away any machine unless they elected so to do. At the close of the trial the jury returned a verdict in favor of the defendant herein; and from the judgment entered thereon the plaintiffs bring this appeal.

Clark & Mills, for appellant. Orr & Lowry, Carter & Cleary, and John D. Wilson, for respondent.

CASSODAY, J. The substance of the contract between the plaintiffs and Lomas, thus stated, made the shipment under it a conditional sale within the provisions of section 2317, Rev. St. It is stated in the charge of the court to the jury, that "the proof shows that this contract was not filed as required by this section." We find no exception to this statement of fact, and it must be treated as a verity in the case. Besides, this statement is not contradicted by the manifest inadvertence that it was not filed "prior to February 26, 1886," only three days after its date and before any shipment had been made, and hence before there was any occasion to file it. Had there been any evidence contrary to this statement in the charge, the court's attention should have been called to it at the time. The court submitted to the jury the question, in effect, whether, at the time of levying the attachment, the defendant, or the Milwaukee Harvester Company, or its agent, knew of, or had reasonable cause to believe in, the existence of such contract, or that Lomas was not at the time the owner of such machines. This was not error. Manufacturing Co. v. Richards, ante, 40, (decided herewith.) Exception is taken because the court instructed the jury, in effect, that to charge the sheriff with notice under that section, they must find that he knew, either that such machines had been shipped under the contract and not paid for, or that he had reasonable cause to so believe. Assuming this to have been error in the abstract, still the only notice disclosed in the evidence is, in effect, that in executing the attachment, a copy of the contract was found with other papers of Lomas in the safe. Such a discovery made at such a time, should not, in our judgment, defeat such attachment; and hence the error, if any, was immaterial. Besides, we are inclined to think that such notice, to be effectual, must be brought home to the

party in interest, and not merely to the sheriff, who is the agency of the law and a mere nominal party. The return of the sheriff, as to the service of the summons and complaint as stated, seems to have been in compliance with subdivision 4, § 2636, Rev. St., and hence sufficient to give the court jurisdiction to enter judgment on default, as it did, against Lomas. Healey v. Butler, 66 Wis. 9, 27 N. W. Rep. 822.

It appears from the return indorsed upon the writ of attachment, that the machinery in question was attached on the day the summons and complaint were served; that 16 days thereafter other property described, of Lomas, was also attached by the same writ, and all held subject to the order of the court. The sheriff further returned thereon, that, after due and diligent search, he was unable to find the defendant therein, Lomas, within Grant county, or within the state of Wisconsin. No objection is made to the sufficiency of the affidavit, undertaking, inventory, or appraisement. The attachment papers were all filed with the clerk of the court, September 13, 1886, and within 20 days from the receipt of them by the sheriff, as required by section 2734, Rev. St. The court certainly acquired jurisdiction over the machinery in question by virtue of the seizure on the attachment. But it is urged that the attachment became a nullity by reason of faiiure to leave copies of the writ, affidavit, undertaking, and inventory with Rogers, as provided in section 2736, Rev. St. The reason given in the return for leaving copies of the summons and complaint with Rogers, were, that he was then a member of Lomas' family, of suitable age and proper discretion. On the motion for a new trial, based in part upon such alleged defective service, it appeared, in effect, that Rogers was the keeper of a hotel at Fennimore during the year 1886; that in August of that year, and for several months immediately prior thereto, Lomas was a guest and boarder of his at said hotel; that during that time Lomas was a single man having no other family; that in August, 1886, Lomas' absconded to parts unknown. Upon these facts, the failure of the sheriff to leave such copies of the attachment papers with Rogers, the same as he had of the summons and complaint 18 days before, seems to have been excusable. The only purpose of leaving such copies is to furnish information of what has been done, to the defendant in the attachment. The same section provides that "in case of a non-resident or a foreign corporation, the sheriff shall serve such copies on any agent of such defendant in the county, if any be known to him." We are not aware of any statute purporting to nullify such attachment by reason of such failure to leave copies. A statutory condition subsequent to the acquisition of jurisdiction may be dispensed with or waived; especially where such statute is for the benefit of the party waiving the same, and no public right or policy is thereby invaded. Winner v. Hoyt, 32 N. W. Rep. 133. Certainly, the defendant in attachment may waive such service by absconding from the county and state. There seems to be no other questions presented, requiring attention.

The judgment of the circuit court is affirmed.

CROW v. DAY, Adm'r, etc.

(Supreme Court of Wisconsin. November 1, 1887.) EXECUTORS AND ADMINISTRATORS MORTGAGE OF LANDS BY DECEASED-JURISDICTION OF COUNTY COURT.

The wife and heirs of the deceased conveyed mortgaged land belonging to the deceased, by a quitclaim deed, to the mortgagee. The administrator claimed the right of possession of the land, and to rent it for the benefit of the common creditors. The mortgagee petitioned the county court to order the administrator to pay over the rents collected, not necessary to pay expenses of administration, to the mortgagee, and to deliver possession of the land to him, and sell it subject to the mortgage. The county court ordered the surrender of the widow's dower interest to the mortgagee, and that the administrator sell or mortgage the remainder for

the benefit of the common creditors. Held, that in Wisconsin the county court had jurisdiction to order the surrender of the widow's dower interest, but that it was without jurisdiction as to the other matters.

Appeal from circuit court, Grant county.

Clark & Mills, for appellant. W. E. Carter and Orr & Lowry, for respondent.

ORTON, J. The appellant filed his petition in the county court of Grant county, setting forth the following facts, viz.: One Wesley Crow died intestate October 8, 1883, leaving his widow, Mahala Crow, and adult children, Charles M. Crow, Arabella Crow, Leroy W. Crow, Ladora Crow, Albert Crow, and Celia Crow. The respondent was appointed administrator, and made an inventory of the personal property appraised at $671.20, and allowance to the widow, $200. On March 20, 1884, the administrator, under an order of the court, sold all the personal property applicable to the payment of the debts, for $408.20. Commissioners for that purpose allowed unsecured claims of $824.08. On the twenty-eighth day of January, 1879, the said Wesley Crow, deceased, and his wife mortgaged all the land the deceased owned at the time and when he died, of certain description, situated in said county, valued at the sum of $3,200, to Nelson V. A. Crow, the appellant, for the sum of $2,155 borrowed money, with interest at 10 per cent., none of which has ever been paid. The land is worth much less than the amount of the mortgage debt and interest, and on the eighth day of January, 1884, the said widow and the said heirs, being unable to pay the same, conveyed said land by quitclaim deed to said mortgagee, and surrendered the possession, and their right of possession, of the said land to him. All the other property of said estate, and proceeds thereof, as aforesaid, were insufficient to pay the unsecured claims so proved and allowed. The respondent administrator claims the right of possession to said land, and to rent the same, and apply the rents to the payment of said claims, and $40 of rents was in the hands of the administrator to await the order of the county court. The prayer is that the administrator account, pay over said $40, if not necessary to pay expenses of administration, deliver possession of said land to the petitioner, and sell or lease the same for the payment of such indebtedness, subject to said mortgage. The county court ordered the administrator to surrender to the petitioner the dower of said widow, when admeasured, and that he sell or mortgage the remainder on the best possible terms, for the benefit of the common creditors. In compliance with said order the said administrator leased the same. The petitioner appealed from said order to the circuit court. The circuit court affirmed that part of the order that directs the administrator to surrender the widow's dower interest in the land to the petitioner, and as to all other matters ordered that the appeal be dismissed for want of jurisdiction in the county court.

The appellant assigns as error: (1) That the circuit court made no order for the distribution of the money now in the hands of the administrator, nor directed the county court to do so. (2) That the circuit court did not order the administrator to procure a license to sell said real estate, or to surrender the possession of said land to the petitioner, or direct the administrator to pay the petitioner the interest on his mortgage debt.

It is supposed that the money that the petitioner desires to have the administrator distribute, or to be applied to the payment of the interest on the mortgage debt, is the $40 so received for rents upon the land. It is very clear that the petitioner has no interest in the distribution of the other moneys of the estate which are to be applied to the payment of claims proved and allowed. The petitioner as mortgagee has never proved his claim, or filed the same in the county court. The administrator had the right to the possession of the land pending the administration, and to collect the rents of the same for the benefit of the creditors, unless he had been prevented by some proper proceed