take, and tenders judgment for the value of the timber at the time of the cutting, as further required by said statute. Appeal from circuit court, Marathon county. Action by Webber and others against Quaw for wrongfully cutting timber on plaintiffs' land, and converting it to his own use. From a judgment for plaintiffs defendant appeals. Affirmed. Silverthorn & Hurley, for appellant. Patchin & Weed, (G. W. Cate, of counsel,) for respondents. ORTON, J. This action is for damages for cutting, carrying away, and converting 400,000 feet of certain pine logs and timber, and the answer virtually alleges that such cutting was done by permission and license from the owner of the land. has been subscribed, are invoked to sustain the demurrer. These rules are applicable only to cases in which the alteration or assessment is not authorized by the charter as it existed when the subscription was made. This is not such a case. The provisions of chapter 87, Rev. St., for the incorporation of railroad companies, and conferring upon them the privileges and powers, and charging them and their stockholders with the obligations, therein specified, is the charter of the plaintiff. It has not been changed since the defendant made his subscription. It is the contract between the stockholders of the company; between the state and such stockholders; and between the state and the corporation. Cook, Stocks, § 492. In contemplation of law, this charter is contained in each stock subscription as effectually as though expressly written therein. Hence the subscription of defendant must be treated as though it contained express stipulations that the capital stock of the company might be increased in the manner pointed out in section 1826 without prejudice to the right of the company to enforce payment for such stock; and that, as soon as the company was incorporated, it might lawfully make assessments on unpaid stock subscriptions, and enforce payment thereof without regard to the aggregate amount of capital stock subscribed or the sums paid thereon. Such is the clear meaning of sections 1820, 1824, Rev. St. In Lynch v. Railway Co., 57 Wis. 439, 15 N. W. Rep. 743, 825, a special railroad charter was so construed, although not as free from ambiguity or doubt, as to the power of assessment before the whole capital stock is subscribed, as in chapter 87. In the view we have taken of the case, it is unnecessary to consider the question of waiver, which was discussed by counsel. We conclude that the complaint states a cause of action, and herce that it was not error to strike out the demurrer. Ordering out of and adhering to property, may affirmed. 1. A cause of action for cutting timber on another's land is assignable, since the right of action is founded on a tort to property, which survives to the personal representative, and the assignee must sue in his own name as the real party in interest. 2. Laws Wis. 1873, c. 263, § 1, which fixes the damages for timber "wrongfully" cut from plaintiff's land at the highest market value of such timber between the date of the cutting and the trial of the action, comprehends all cases of unlawful and unauthorized cutting, or where such cutting is done without right, though by mistake; and defendant is liable for such damages in all cases unless, within 10 days after the service of the complaint, he serves on plaintiff an affidavit that such cutting was done by mis This case, filed January term, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 46, Wisconsin Reports. The first exception in the record, but which was not urged upon the argument, was to the admission of the assignment, to the plaintiffs, of the cause of action, which may have been objected to on the ground that it was not assignable, although the record does not disclose what objection was made to its admissibility. The assignability of choses in action was not allowed at common law, as being against public policy and the statutes against champerty and maintenance; but this rule of the common law has been gradually relaxed, until not only choses in action founded on contract, but also for torts to property and injuries to the estate, were held assignable, so as to pass to the assignee in equity. Arden v. Patterson, 5 Johns. Ch. 50. And, finally, the rule seems to have been adopted, without regard to former reasons or prohibitions, in all cases not strictly within the statute against champerty, that all choses in action which survive the person, and vested rights ad rem and in re, possibilities coupled with an interest, and claims grow pass by assignment. Comegys v. Vasse, 1 Pet. 213. It seems now to be recognized as a test of the assignability of choses in action for torts that they survive to the personal representatives. Burrill, Assignm. § 103; Jordan v. Gillen, 44 N. H. 424. The provisions of our statute, found in section 12, c. 122, and section 2, c. 134, Rev. St. 1858, have received such construction, both in the state of New York and in this state, that this and all like causes of action are assignable, so as not only to allow, but require, the action to be brought in the name of the assignee as the real party in interest. Butler v. Railroad Co., 22 Barb. 110; McKee v. Judd, 12 N. Y. 622; Tyson v. McGuineas, 25 Wis. 656; Noonan v. Orton, 34 Wis. 259; McArthur v. Canal Co., Id. 151. It will be observed that the defense relied upon is solely that the cutting of the logs charged was done by purchase, permission, and license; and, if it had been suscomplete, and the act charged was no tained by the evidence, the defense was trespass. The defense does not go merely to the mitigation of an acknowledged trespass, or to the character of the act as being technically unlawful merely, or intentionally or willfully wrong. The in. struction asked and refused, and the refusal of which is the only error relied upon in the argument, seems to be based upon a conceded right of recovery in the plain. tiffs, and only asks for a rule of damages, claimed to be applicable to the facts of the case, by which the plaintiffs should only recover the value of the logs and timber at the time of the cutting or conversion as the damages, and not the highest market value of the same at any time since, as charged by the court. The instruction was: "If you find from the evidence that the defendant, at the time of the cutting, had reasonable grounds to believe, and did believe, that he had permission of the owner of the land, or his authorized agent, to go on and cut and take the timber in controversy, although contrary to the understanding of such owner or agent, then such cutting and taking was not wrongful, as contemplated by law, and the measure of damages prescribed by statute in case of wrongful cutting of timber should not apply to the case, and you may find the plaintiffs' damages as in cases of involuntary trespass. The statute (section 1, c. 263, Laws 1873) fixes the rule of damages in actions brought to recover the value of logs wrongfully cut from the lands of the plaintiff at the highest market value of such logs or timber between the time of such cutting and the trial of the action, but provides that the defendant in such a case may relieve himself from the application of this rule of damages by serving upon the plaintiffs an affidavit, stating that such cutting was done by mistake, and by a tender of judgment for the value of such logs or timber at the time of such cutting, with interest thereon to the time of the tender; and further provides for the trial of an issue to be formed upon such allegation of mistake, in case such tender is refused. This case was not tried by the appellant upon the theory of this statute, and the benefit of the statute was not claimed, nor were any steps taken to bring the case within its provisions; but it was insisted that it did come within the statute, or the rule of damages fixed by the statute, because the trespass complained of was unintentional and involuntary. Without attempting to define the word "wrongful," as used in statutes, civil or criminal, in connection with the great variety of subjects which, from their peculiar nature, may serve to modify its technical meaning, and express the intention of the legislature in using it, we think it is perfectly clear that, as here used, it means any unlawful or unauthorized cutting of logs or timber upon the lands of another, or any act of this description which is a civil wrong, or without right. To give sense to the statute, this must be its meaing, for the statute clearly implies that such cutting may be wrongful, and yet done by mistake. It is conceded by the learned counsel of the appellant that this statute was enacted in view of the rule of damages in such cases established by the decisions of this court, in which the distinction between cases of willtul and common trespass and compen satory and exemplary damages is maintained. This is unquestionably true, and this reason for the enactment of the statute is recognized in Webster v. Moe, 35 Wis. 75, in a case which arose before the statute, but in which the court thought proper, in view of the statute then in force and affecting future cases, to apply substantially the statutory rule. In that case, Mr. Justice COLE, in the opinion, says: "The evidence showing under what circumstances the trespass was committed is not before us. Therefore, whether the timber was cut through some mistake on the part of the defendant as to the title or boundaries of the land, or intentionally, or even wantonly, we do not know;" and yet the statute rule was practically applied, which would seem to be an authoritative construction of the statute, that it embraced all of this class of trespasses, irrespective of circumstances showing intention or mistake. Whether the case made by the defendant in his answer, and attempted to be proved, was such a mistake as is contemplated by the statute, and which, if set up as the statute directs, would mitigate the amount of damages, we do not decide; for this question is not raised by any steps taken by the defendant under the statute to bring himself within the rule of the lesser amount of damages, and the case must therefore stand and be decided upon the position assumed.-that it does not come within the statute. It may, however, be proper to say that the instruction asked would seem to imply that the case, by the answer and evidence, had been brought within the rule of the statute in case of a mistake, without making the affidavit and tender required by the statute in such case; thus asking for the application of the statutory rule of damages, as in case of mistake, without pursuing the statute. The defense might perhaps have been embraced within the meaning of the word "mistake," as used in the statute, and the benefit of the statute secured, if its directions had been pursued; for the ordinary definition of "mistake" embraces “any unintentional act, or any omission or error arising from ignorance, surprise, imposition, or misplaced confidence, (2 Burrill, Law Dict. 202; 1 Story, Eq. Jur. § 110;) and the language of the opinion above cited would seem to imply that such mistake might embrace matters of title as well as of boundary. We hold, therefore, that the statute, both in terms and intention, comprehends all cases of unlawful and unauthorized cutting of logs and timber on the lands of another, or where such cutting is done without right, and fixes the invariable rule of damages in all such cases as the highest market value of such logs or timber between the time of such cutting and the trial of the action, unless the defendant, within 10 days after the service of the complaint in such action, serve upon the plaintiffs an affidavit that such cutting was done by mistake, and tender judgment as required by the statute. This course not having been pursued by the defendant, this inva riable rule of the statute must govern, and the instructions given by the circuit court were correct, and the refusal to give the instruction asked was not error. PER CURIAM. The judgment of the circuit court is affirmed, with costs. NORTHWESTERN MUT. LIFE INS. Co. v. NEEVES et al.1 (Supreme Court of Wisconsin. Jan. Term, 1879.) CONSTITUTIONAL LAW-OBLIGATION OF CONTRACTS -FORECLOSURE OF MORTGAGE. 1. Where the order of publication in the record in foreclosure states that the complaint was then on file, this must be taken as true; and an objection that the complaint was not filed until after judgment cannot be sustained on appeal. 2. Laws Wis. 1877, c. 143, which postpones foreclosure sales for a year after judgment, and provides for the repeal of Laws 1859, c. 195, but does not give the year's right of redemption allowed by that law after sale, does not impair the obligation of contracts in applying to mortgages given before its enactment, since the time for redemption is the same in either case, and the remedy not materially changed. Appeal from circuit court, Wood county. Suit by the Northwestern Mutual Life Insurance Company against Neeves and others to foreclose a mortgage. There was judgment for plaintiff, and defendants appeal. Affirmed." Powers & Briggs, for appellants. D. G. Hooker, for respondent. ORTON, J. The objection taken, that the judgment in this action was rendered before the complaint was filed, is not sustained by the record; for it is stated in the order of publication that the complaint was then on file, and this must be taken as true. The mortgage in this case was given while chapter 195, Laws 1859, was in force, by which a right of redemption within one year after a sale of the mortgaged premises under a judgment of foreclosure was given; and the judgment thereon is rendered under and conforms to the provisions of chapter 143, Laws 1877, which do not provide for any such redemption, but postponed the sale of the mortgaged premises one year from the date of the judgment, and repeals said chapter 195, Laws 1859. Whether it would have been proper in this case to have made the judg inent conform to the provisions of the law of 1859 we are not called upon to decide; but section 8 of the law of 1877 appears to allow the law of 1859 to remain in force only as to judgments rendered before its repeal; and the act of 1877 was clearly intended, with this exception, to be applicable to proceedings in foreclosure of all mortgages, whether given during the existence of the law of 1859 or since. The only question made was as to the constitutionality of the law of 1877, thus construed to embrace proceedings for the foreclosure of mortgages so given under the law of 1859, and before its repeal. The view we take of the provisions of these two acts renders This case, filed January term, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 46, Wisconsin Reports. it unnecessary to go into the discussion of the general subject of laws impairing the obligation of contracts, or a review of authorities upon that subject. The law of 1877 does not materially or substantially change the remedy provided by the law of 1859. The same time is given for redemption, and the interest upon the judgment is not changed; and we cannot perceive in what respect the rights of the mortgagor are impaired, or the obligation of his contract changed. We think that a proper construction of the law of 1877 would not justify any steps to be taken for a sale of the mortgaged premises, before the expiration of one year from the date of the judg ment, and that the term "sale" was intended to embrace everything appertaioing to the sale, including the publication of the notice of sale. There may have been cases of foreclosure under this law, and sales made under a different construction, and, in this respect, sales made prematurely; but the only remedy in such cases would have been by an appeal from the orders of confirmation in proper time, on account of such irregularity. The law of 1877 makes far less change in the remedy than many other laws of this state which have been held by this court not to affect or impair the obligation of contracts, such as in the case of Von Baumbach v. Bade, 9 Wis. 560, and in numerous other cases. PER CURIAM. The judgment of the circuit court is affirmed, with costs. CLINE V. LIBBY.2 (Supreme Court of Wisconsin. Jan. Term, 1879.) CHATTEL MORTGAGES MORTGAGEE'S RIGHT TO POSSESSION. 1. A chattel mortgage, authorizing the mortgagee to take possession of the property whenever he deems himself insecure, vests the inortgagee with an absolute discretion in the matter, and his right to take possession does not depend on the fact that he has reasonable grounds to deem himself insecure. Huebner v. Koebke, 42 Wis. 319, followed. 2. Where a chattel mortgage on a stock in trade authorizes the mortgagee to take possession of and sell the property whenever he deems himself insecure, the court has no right to enjoin him from so doing, though it requires the mortgagor to give additional security, and to pay over a specified portion of the proceeds of his sales, to be applied on the mortgage debt. 3. The rule that equity will not enforce a hard and unconscionable contract does not authorize the injunction, since the mortgagee is not seeking affirmative relief; nor can the provision of the mortgage be termed hard and unconscionable, as the execution of a chattel mortgage transfers the legal title, which carries with it the right of possession, in the absence of an agreement, express or implied, to the contrary. Appeal from circuit court, Waupaca county. Action by plaintiff, Cline, against Rowena T. Libby, to enjoin defendant from taking possession of plaintiff's property, and selling the same under a chattel mort This case, filed January term, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 46, Wisconsin Reports. gage executed by plaintiff. From a decree granting the injunction defendant appeals. Reversed. This was the stipulation of the parties. In Huebner v. Koebke, 42 Wis. 319, this court had occasion to place a construction on such a clause in a chattel mortgage. It held that it vested an absolute discretion in the mortgagee to take possession of the property when he might deem himself insecure, and that the exercise of this right did not depend upon the fact that the mortgagee had reasonable ground for deeming himself insecure. In the order the circuit court utterly ignored or annulled that clause in the mortgages by enjoining the defendant from interfering in any manner with the mortgaged property. The order contains other conditions which we deem equally unauthorized, in respect to additional security tendered by the plaintiff; and also in regard to the plaintiff's making an inventory of the mortgaged property, and paying over onefourth of the proceeds of the sales thereof to the Bank of New London, to be applied on the notes as they became due. It is true the plaintiff does not complain of these conditions; but the defendant may well object to such a disposition of the mort The mortgage in question was executed by plaintiff on his stock in trade, valued at $1,600, to recover a debt of $690. The mortgage contained a clause authorizing the mortgagee or his assignee to take possession of the property whenever he deemed himself insecure, and to sell and dispose of the same to pay the mortgage debt. The original mortgagee, Charles R. Libby, transferred the mortgage to one Klausch, who in turn sold it to defendant, Rowena F. Libby. Plaintiff had paid part of the principal of the debt as it fell due, and also the interest, and was not in default when defendant, Rowena Libby, attempted to take possession of plaintiff's stock. At that time the mortgage debt had been reduced to $490, and the property securing it was worth over $1,500. Plaintiff also tendered defendant a bond, with good and sufficient sureties, in the penal sum of $1,000, conditioned to pay the mortgage debt at maturity. In his compnt plaintiff alleged that defendant does not deem herself insecure, but is seek-gaged property, for she was entitled to ing to obtain possession of plaintiff's property at a forced sale at less than its value, so that a rival business with which it was indirectly connected would profit by the ruin of plaintiff's business. Plaintiff prayed for an injunction, which was granted by a court commissioner. Defendant filed an affidavit in the circuit court in which she denied the allegations of the complaint as to her motives, and alleged that she deemed herself insecure, stating her reasons therefor, and she moved the court to set aside the injunction. The court denied her motion, and continued the injunction, on condition that plaintiff deliver the penal bond to the clerk of the court, to be delivered to defendant in case plaintiff failed to pay the mortgage debt at maturity, and on condition that plaintiff keep an accurate account of his sales, and at the expira. tion of each 90 days that he make a sworn statement as to their amount, and pay one-fourth thereof to a bank for defend ant's benefit. The appeal is from this order. Perry & Hetzel, (Geo. W. Burnell, of counsel,) for appellant. Patchin, Weed & Lester, for respondent. COLE, J. The injunctional order in this case seems obnoxious to the objection taken to it by defendant's counsel,-of being a violation of the rights of the mortgagee under the mortgages, and really an attempt on the part of the learned circuit court rather to make a new contract for the parties than to enforce the one which they themselves had made. It is axiomatic in the law that courts have no authority to make contracts for parties which will accord with judicial notions of fitness and propriety. GIBSON, C. J., in Bash v. Bash, 9 Pa. St. 260. By the several mortgages the mortgagee had right, at any time when she might deem herself insecure, to take possession of the mortgaged property, and sell the same at public or private sale to pay the notes. v.49N.w.no.17-53 the the possession of that property whenever she should deem herself insecure. She was proceeding to exercise the right of taking possession when she was enjoined. It is claimed, however, that it was a proper exercise of the jurisdiction of a court of equity to restrain the defendant from asserting this legal right. The case of Williamson v. Railroad Co., 1 Biss. 198, and other authorities, are cited in support of this position, and to the point that a court of equity will not enforce penalties, but relieve against them. It is certainly familiar doctrine that equity will relieve against penalties and forfeitures, but it has no application to the case at bar. In Williamson v. Railroad Co., Mr. Justice MCLEAN declined, on the application of the trustee, to appoint a receiver of the railroad property in a foreclosure suit for default of payment of interest, holding that the appointment of a receiver in such a case was not a matter of course, but rested in the sound discretion of the court. And it was while considering that question that Judge MCLEAN makes the remark quoted in the brief of plaintiff's counsel, to the effect that, "where there is a hard and unconscionable contract, a court of equity will withhold its aid, and leave the party to his remedy at law." But there is a marked distinction between that case and the one before us. Here the mortgagee is not seeking the aid of a court of equity to enforce the contract; nor is there any ground for saying that the clause in the mortgage in regard to the defendant's taking possession of the property when she deemed herself insecure is a hard or unconscionable agreement. The execution of a chattel mortgage vests in the mortgagee the legal title, subject to be defeated by the performance of the condition. The right of possession ordinarily follows that of property, and both would pass under the transfer, in the absence of any express or implied agreement for the retention of the property by the mortgagor. Hall v. Sampson, 35 N. Y. 274. And, except as against the parties | therein. It gives her the right of occuthereto, our statute makes the mortgage invalid, unless possession of the mortgaged property be delivered to and retained by the mortgagee, or the mortgage or a copy thereof be filed in the proper office. Tayl. St. c. 107, § 9. Where the mortgagor had the right to retain possession for a stipulated period, it was held in Ford v. Ransom, 8 Abb. Pr. (N. S.) 416, that he might, by an injunction, prevent the mortgagee from taking possession before the expiration of the time limited. But we have not been referred to any case where an injunction was granted to restrain the mortgagee from asserting his possessory right under a clause in the mortgage like the one in question. The order appealed from must be reversed, and the cause remanded, with directions to dismiss the complaint. PER CURIAM. So ordered. WESTON et al. v. WESTON.1 1. A wife, who, in addition to her inchoate dower and homestead rights, has been awarded exclusive possession of the homestead pending a suit for divorce and alimony instituted by her, is a proper party to an action to enforce a mechanic's lien thereon, and, where judgment by default has been obtained in such action against the husband alone by collusion between him and plaintiff, she may become a party, and contest the alleged lien. 2. The filing of a verified answer and payment of costs as a condition of such relief is not required by the statutes or rules of practice of Wisconsin. Appeal from circuit court, Portage county. Action by Weston and another against Paul Weston to enforce a mechanic's lien against the homestead of defendant. Judgment was rendered by default. Afterwards Effie J. Weston, defendant's wife, filed an affidavit in the cause alleging that she had previously sued defendant for divorce and alimony, in which the court had awarded her the possession of the premises; that the plaintiffs, who were the father and brother of defendant, colluded with him in obtaining the judgment to defeat her inchoate homestead right; and that, if permitted to defend the action, she could defeat the alleged lien. Her motion to open the judgment and to become a party to the suit was granted, and plaintiffs appeal from the order. Affirmed. Raymond & Haseltine, for appellants. G. W. Cate, for respondent. LYON, J. While it may be true that the statute does not make the wife a joint tenant with her husband of the homestead, or vest in her an interest in the fee, yet it does confer upon her valuable rights 1 This case, filed January term, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 46, Wisconsin Reports. pancy and enjoyment thereof with her husband as against his creditors, and an absolute veto on his power to alienate it. In case the husband dies intestate, the homestead descends to his widow absolutely, if he leaves no children surviving him, and during her widowhood, if he does. Taylor, St. 1171, § 5. These are additional to her dower right, which manifestly is not merged in the homestead right. Should the husband lawfully devise the homestead to another, or should he die leaving children, and his widow marry, she may assert her dower right, notwithstanding the premises were once the homestead of her husband. In Madi gan v. Walsh, 22 Wis. 501, this court found no difficulty in holding that an inchoate right of dower is such an interest in lands as will enable a married woman to maintain an action to set aside a deed thereof to which her signature has been fraudulently obtained. That decision, we think, disposes of the objection that Mrs. Weston has no such interest in the premises affected by the lien judgment as gives her a standing in court to resist such judgment. In addition to her rights under the homestead laws and her inchoate right of dower, she alleges that she is entitled to the possession of the premises pursuant to an interlocutory order of the court in the divorce suit. We infer that she is in possession by virtue of the order, and that such possession is exclusive of her husband. Having these various interests and rights in the premises, it would be a reproach to the law were she denied a standing in court to defend them when they are fraudulently and collusively assailed by her husband and his kindred. We hold, therefore, that Mrs. Weston is a proper party to the lien suit. If not made a party, probably she might maintain an action against the plaintiffs in the nature of a suit to redeem, in which she could contest the right of the plaintiffs to a specific lien for any sum, or show that the judgment is for too large a sum. McCoy v. Quick, 30 Wis. 521. The learned counsel for the plaintiffs claim that the judgment should not be opened to allow Mrs. Weston to defend the action if she is not bound by the judgment; and they cite, in support of their position, Bean v. Fisher, 14 Wis. 57, and Gray v. Gates, 37 Wis. 614. Bean v. Fisher merely holds that a judgment should not be opened to let in a new party whose interests are not affected by it; as, for example, a prior incumbrancer in an action to foreclose a junior mortgage. The same rule was stated hypothetically in Gray v. Gates, but the case turned upon a special statute of limitations relative to opening judgments. We think the interests of Mrs. Weston may be affected by this judgment, if it is allowed to stand. On a sale under it she is liable to be excluded from the possession of the premises, at least she may be so excluded unless she bring an action promptly, and obtain an injunction to protect her possession. This would or might require the giving of security, which she cannot be required to give if allowed to defend the lien suit. Moreover, in an |