sheriff's fees charged for executing the illegal executions. It would also include any expenses to which the plaintiff has been put by way of rent or use of store and clerk's hire during the time the defendants had possession of the store; and under this item of expenses we are inclined to hold that the plaintiff may recover any money he may have necessarily expended for counsel and attorney's fees in the proceedings to set aside the illegal judgments and executions. The learned counsel for the appellants have cited several cases in England and in the United States which hold that these expenses are not recoverable in an action of trespass for injury to the property of the plaintiff. These decisions go mainly upon the nature of the action, and rest upon the right to recover in the given form of action. In Holloway v. Turner, 6 Q. B. 929, 930, the court say that these expenses cannot be recovered in that action, but it is expressly stated that the plaintiff might recover such costs in a proper form of action. The American cases cited proceed upon the same ground. In this state, and under the Code, there seems to be no good reason why they may not be recovered in the same action when the facts are properly stated in the complaint. See subdivision 1, § 2647, Rev. St. No damages should be allowed for injury to the feelings of the plaintiff. Injury to the feelings is not a legitimate item of damage in any action for an injury to personal property, when such injury is not malicious, and is not accompanied by insult. Donnell v. Jones, supra. No damages should be assessed in consequence of the voluntary assignment, either for the expenses of the assignment or by supposed losses by forcing the goods upon the market, nor for loss of profits of business for any time after the goods were restored to the plaintiff or his assignee. The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

WELCH v. ABBOTT et al.

(Supreme Court of Wisconsin. November 8, 1888.)

1. RAILROAD COMPANIES-STOCK-KILLING CASES-PROVINCE OF JURY.

In an action against a railroad company for killing an ox, where there is direct and positive, though contradicted, evidence of the insufficiency of defendants' fence, and it is shown that the plaintiff was not guilty of contributory negligence, a motion for nonsuit is properly refused.

2. WITNESS-IMPEACHMENT-EVIDENCE-ADMISSIBILITY-DECLARATIONS.

Where a witness has been interrogated in regard to certain statements contradictory of his testimony on the stand, evidence of such statements is admissible for the purpose of impeaching his credibility, though they were made after the occurrence which is the subject-matter of the suit.1

3. NEW TRIAL-WEIGHT AND SUFFICIENCY OF EVIDENCE.

Where the evidence is conflicting upon the main point in issue, it is proper to overrule a motion for a new trial.

Appeal from circuit court, Portage county; CHARLES M. WEBB, Judge. Action by John E. Welch, administrator of the estate of John Welch, deceased, against Edwin H. Abbott and John A. Stewart, as trustees of the Wisconsin Central Railroad Company, to recover for the killing of an ox by defendants' train through defendants' neglect to maintain a sufficient fence. Judgment for plaintiff, and defendants appeal.

D. S. Wegg and Howard Morris, (Winkler, Flanders, Smith, Bottum & Vilas, of counsel,) for appellants. Cate, Jones & Sanborn, for respondent. TAYLOR, J. John Welch, now deceased, brought an action against the appellants, as trustees in possession of and running the Wisconsin Central

1In general, on the subject of impeaching the credibility of witnesses by showing previous contradictory or inconsistent statements, either on cross-examination or by other witnesses, see Milligan v. Butcher, (Neb.) 37 N. W. Rep. 596, and note; Richards v. Derrick, 2 N. Y. Supp. 31; Thompson v. Gregor, (Colo.) 19 Pac. Rep. 461, and note; Durfee v. Knowles, 2 N. Y. Supp. 466.

Railway in this state, to recover the value of one ox belonging to the plaintiff, and which he alleged was killed by the negligence of the said trustees in not maintaining a suitable and sufficient gate or bars at a private crossing of said road on lands adjoining the lands of the plaintiff. The evidence clearly establishes the fact that plaintiff's ox escaped from the plaintiff's inclosure near the railroad, and passed over the lands of an adjoining owner, and through bars maintained by said company at a farm crossing on the lands of such adjoining owner, onto the railroad track, and was there killed by a passing train. The only real dispute on the trial was upon the question of the negligence of the railroad company in not maintaining sufficient bars or gate at such farm crossing. The plaintiff gave evidence tending to show that at the time of the accident, and for some time previous thereto and afterwards, the bars in question were wholly insufficient. The witnesses testify that there were but three bars, not to exceed six inches in width, at the crossing, and that, when the bars were in place, they formed no real obstacle to prevent cattle from going over them. The witnesses for the railroad company testified that there were four bars, and when in place they formed a sufficient protection against cattle. On the whole evidence it was certainly a question for the jury, and not a question of law for the court, whether the company was guilty of negligence in not maintaining sufficient bars at the place in question. There is no evidence showing that the plaintiff was negligent in not restraining the ox within his own premises. The evidence tends to show that he maintained a lawful fence about his premises at the time of the accident, and that he had no knowledge that the ox was unruly, or in the habit of throwing down fences. It was clearly not a case in which the court should have granted a nonsuit.

It is urged by the learned counsel for the appellants that the court erred in permitting the plaintiff to ask one of the defendants' witnesses "whether he did not tell the plaintiff's son, on Tuesday after the accident, that part of the bars were gone, or had been gone, and that there should have been five bars." This witness had testified for the defendants that he saw the bars on Saturday before the accident, (the accident happened on Sunday,) and that there were fours bars, and that they were all in their places, and made a fence four or four and a half feet high, and that there were no other bars lying about there; that he saw them on Monday after the accident, and that there were four bars there then, but pulled out at one side,-three were pulled out. The witness denied telling plaintiff's son anything about the bars. The son was recalled by the plaintiff as a witness, and testified that on Tuesday after the accident the witness Hagg told him "that part of the bars were gone, and he would get some new ones, and fix them up." This statement of the witness Hagg was offered as impeaching evidence, and as Hagg was questioned about it on his examination there can be no objection to its competency. The rule is so well settled that you may impeach the credibility of a witness by showing that he has made statements out of court different from those made by him on the stand as a witness, when the witness is interrogated as to such statements while on the stand as a witness, so as to enable him to explain, if he can, why such statements were made, or to deny the fact that they were made, that it is wholly unnecessary to cite authorities to sustain such rule. The motion for a new trial was properly denied. There was a conflict of evidence upon the principal point in the case, and the verdict of the jury ought to stand. The judgment of the circuit court is affirmed.

MONROE COUNTY v. JACKSON COUNTY.

(Supreme Court of Wisconsin. November 8, 1888.)

1. POOR AND POOR-LAWS-SETTLEMENT-HUSBAND AND WIFE.

Under Rev. St. Wis. § 1500, relating to the support of paupers, which provides (subd. 1) that "a married woman shall always follow and have the settlement of

her husband, if he have any within the state," it makes no difference that the wife has been abandoned, or that she lives voluntarily apart from her husband; his settlement is still hers, for the purposes of the statute.

2. SAME SETTLEMENT-RESIDENCE-INTENT.

Where a man has his only home and place of business in a certain town for the time required by the statute, he gains a residence there, notwithstanding he may have contemplated leaving such town at a future time.

3. SAME-SUPPORT AS A PAUPER-PARENT AND CHILD.

The support of a mother by her daughter is not supporting a poor person as a pauper, within the meaning of Rev. St. Wis. § 1500, subd. 4, providing that no person shall gain a residence in a town by being supported therein as a pauper.

Appeal from circuit court, Jackson county; A. W. NEWMAN, Judge. Action by Monroe county against Jackson county to recover for money paid in support of a pauper. Verdict and judgment for defendant, and plaintiff appeals.

D. F. Jones and Bleekman, Tourtellotte & Bloomingdale, for appellant. C. F. Ainsworth, for respondent.

TAYLOR, J. This action was brought by the county of Monroe against Jackson county to recover for money paid by said county of Monroe for the support and maintenance of one Chloe Scutt, a poor person, who was injured in said county of Monroe in the spring of 1885, and who is admitted to have been a poor person, and needed the supplies furnished by the said county of Monroe. There is no dispute as to the value of the things furnished by the said county of Monroe, nor as to the fact that they were necessarily furnished to Mrs. Scutt as a poor person. The only question controverted on the trial was the liability of the county of Jackson to support such poor person at the time the county of Monroe furnished such support to her. Admitting that Mrs. Scutt was a poor person needing support, and admitting that the county of Monroe lawfully furnished the supplies to her as stated in the complaint, the claim of the defendant county is that, at the time such supplies were furnished by the county of Monroe, the said Mrs. Scutt had no legal settlement in said county of Jackson, and that said county of Jackson was not liable for her support as a poor person. The following facts seem to have been fully established on the trial: (1) That, in the early part of the year 1880, Mrs. Chloe Scutt was married to one Benjamin Scutt, both being at the time old persons, and possessed of very little property. (2) That at the time of their marriage both had lived several years in said county of Jackson, and each had a legal settlement in a town in said county at the time of such marriage. (3) That after the marriage they lived together as husband and wife for about six months in said county, in the town in which the husband had a legal settlement; that in September, 1880, Benjamin Scutt sent his wife to her daughter's, and has never lived with her as his wife since that date, or in any way provided for her support. (4) That shortly after Mrs. Scutt came to live with her daughter she received support from the town in which she resided in said county of Jackson, as a pauper, during the latter part of the year 1880 and the early part of the year 1881. After that the authorities of Jackson county were about to send her to the county poor-house, and her daughter Mrs. Oliver took her to her home, and supported her until she went to Sparta, in June, 1884. (5) After she had lived in Sparta from June, 1884, to April, 1885, she was injured, and was unable to support herself or provide medical attendance, and the county of Monroe furnished the medical attendance and other supplies and necessaries, for which this action was brought. (6) Shortly after Benjamin Scutt sent his wife to her daughter, and in the fall of 1880, he left the county of Jackson, and lived in the county of Monroe, until the spring of 1881, when he returned to Jackson county, and lived near where he had formely lived for about one year; and in the spring of 1882 he returned to the town of Angelo, in Monroe county, and resided there continuously from that time until v.40N.w.no.3-15

the 4th of July, 1885, when he left said county. Where he has lived since that time does not appear, but it is satisfactorily shown that he has not lived in either Monroe or Jackson county since that date. (7) There is no proof that Benjamin Scutt had ever been a town or county charge, or ever received any aid from town or county, until the last of the year 1882, or the early part of 1883. At this time he was living in Monroe county, and the proper authorities of said county then furnished him and the man with whom he was living a few dollars' worth of necessaries. The officer who furnished this aid says: "I never made any bill to Jackson county for that. I never sent in any bill, for this reason: It was a very small amount, a matter of a few dollars, and we always had to come here three or four times to collect a bill, and it did not pay the expenses.' (8) There is no evidence that Monroe county furnished aid or assistance to Benjamin Scutt after the early part of 1883, and down to the time he departed from said county, in July, 1885; nor does it appear that said Scutt was during any of that time supported by private charity. Upon these facts the learned circuit judge directed a verdict for the defendant. The county of Monroe duly excepted to the ruling of the judge, and appeals from the judgment entered in favor of the defendant county.

It is urged by the counsel for the appellant that the learned circuit judge erred in not holding that Mrs. Chloe Scutt had, at the time she received her support from Monroe county, a legal settlement in the county of Jackson, and that consequently Jackson county was liable for such support. Upon the facts stated, it is evident that both Mrs. Scutt and her husband had a legal settlement in the county of Jackson at the time of their marriage, in 1880; and that such settlement continued in Jackson county until at least one year after Benjamin Scutt returned, in the spring of 1882, to live in said county of Monroe. At the time he received some slight support from Monroe county in the fall of 1882, and the early part of 1883, he had not gained a settlement in said county of Monroe, nor had he lost his settlement in Jackson county. It is insisted by the learned counsel for the respondent that Benjamin Scutt, the husband of Chloe Scutt, gained a settlement in Monroe county by his residence in said county, without receiving any public or private aid for his support, from the early part of 1883 to July, 1885, when he left such county; and it is also claimed that he lost his settlement in Jackson county by a voluntary and uninterrupted absence from such county for more than one year previous to the time the county of Monroe furnished the support to his wife, in the spring of 1885. It is further insisted by the learned counsel for the respondent that if Benjamin Scutt had no legal settlement in the county of Monroe, when such aid was furnished to his wife by the county of Monroe, still the county of Jackson is not liable for the aid furnished to the wife. We have spoken of Scutt and his wife having a settlement in one or the other of the counties, instead of in any particular town in such counties, because it appears that the support of the poor in such counties had been assumed by the counties, respectively, so that a settlement in any town of either county would make the poor persons chargeable to the county in which the town of settlement was situated. The statute defines how a person obtains a settlement for the purposes of support as a pauper, and how such settlement may be changed or lost. Section 1500, Rev. St., reads as follows: "Legal settlements may be acquired in any town, so as to oblige such town to relieve and support the person acquiring the same, in case they are poor, and stand in need of relief, as follows: (1) A married woman shall always follow and have the settlement of her husband, if he have any within the state; otherwise her own at the time of marriage, and, if she then had any settlement, it shall not be lost or suspended by the marriage; and in case the wife shall be removed to the place of her settlement, and the husband shall want relief, he shall receive it in the place where his wife shall have her settlement." "(4) Every person of full age, who shall have resided in any town in this state one whole year, shall

thereby gain a settlement in such town; but no residence of a person in any town, while supported therein as a pauper, shall operate to give such person a settlement in such town. (5) Every minor whose parent, and every married woman whose husband, has no settlement in this state, who shall have resided one whole year in any town in this state, shall thereby gain a settlement in such town." "(7) Every settlement, when once legally acquired, shall continue until it be lost or defeated by acquiring a new one in this state, or by voluntary and uninterrupted absence from the town in which such legal settlement shall have been gained, for one whole year or upward; and upon acquiring a new settlement, or upon the happening of such voluntary and uninterrupted absence, all former settlements shall be defeated and lost."

The rights of the respective parties to this action must be determined upon a construction of the law above quoted. Under these provisions of law, and upon the facts established by the evidence, it seems to us very clear that the learned circuit judge properly directed a verdict for the defendant county. The evidence establishes, beyond controversy, (1) that, at the time of the marriage of Benjamin Scutt and Chloe Scutt, they were both residents of and had legal settlements in Jackson county, and that up to that date neither of them had been supported at the expense of the public or by private charity; (2) that, after the marriage of Benjamin Scutt, the husband removed to a town in the county of Monroe, and resided in such town for more than one year previous to the time Monroe county furnished the aid to his wife, which is the ground of action in this case, and that during such one year and more, immediately preceding the time such support was furnished the wife, he was not supported as a pauper in said town and county of Monroe; (3) that at the time such support was furnished, Benjamin Scutt had been voluntarily and uninteruptedly absent from the town in Jackson county in which he had theretofore a legal settlement, and from Jackson county, for more than one year. Under the statute above quoted, it seems very clear that if Benjamin Scutt had obtained a legal settlement in the town of Angelo, in Monroe county, where the aid was furnished to his wife, then his place of settlement was the place of settlement of his wife, and Jackson county was not liable for the aid furnished. It is claimed by the learned counsel for the appellant that the statutory rule should not be applied when it appears that the husband and wife voluntarily live apart, or when the husband abandons his wife. The statute, however, makes no exception to the rule laid down, viz., that the settlement of the wife "shall always follow and have the settlement of the husband." Though the wife may be abandoned, or she lives voluntarily apart from her husband, she is still his wife. The statute not having made any exception to the general rule stated, we are not at liberty to make one. If the present rule is unjust, it is for the legislature, and not for the courts, to correct such injustice. It is urged that the proofs do not clearly establish the fact that Benjamin Scutt acquired a legal settlement in the town of Angelo, in Monroe county. We think the learned circuit judge was right in holding the evidence conclusive on that question. The evidence shows that he lived in such town for more than one year, the length of time required to obtain such settlement, and that for more than two years immediately preceding the time when the aid was furnished his wife he had lived in such town without receiving any aid as a pauper or poor person. That he may have contemplated leaving such town at some future time does not defeat his gaining a settlement in such town. He had his only home and business in such town for more than the time required by the statute, and that is sufficient. See Abington v. North Bridgewater, 23 Pick. 170, 176, 177; Anderson v. Estate of Anderson, 42 Vt. 350353; Middlebury v. Waltham, 6 Vt. 200-202; Stamford v. Readsboro, 46 Vt. 606-611; Pittsford v. Chittenden, 44 Vt. 382. We are not, therefore, called upon in this case to decide what would have been the rights of the respective counties had Benjamin Scutt lost his settlement in Jackson county without