Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1892-01-15
The New Order of Things Presents
Hon. Nm. P. Lyon as Chief
Justice.
Justice 5. Q. Pinney Takes His
Seat on the Extreme
Left.
Abstracts OF a Number of Important
Opinions Further Pro
ceedings.


Supported on the right by Justices Casso-
day and Winslow and on the left by JUS
tices Orion and Pinney. According to
rule Justice Orion should have been next
to the chief justice on the right, but by
mutual consent Justices Orten and Casso-
day exchanged seats
Opinions were rendered by all the mem.
bers of the bench excepting Justice PIN.
ney, who took his seat for the irst time
yesterday.
The following are abstracts of the most
important opinions:
The Eliot Case.
| The verdict of the court is that the
Dung wife in the case of Charles II.
Eliot VS.. Elizabeth Eliot must make a
new answer in the suit, the case coming
| from Milwaukee. 1t will be remembered
that on former appeal it came here from
an order OF the superior court of Milwau-
kee overruling demurrer to the COM
plant of Charles Eliot, and this court
sustained that order. After the cause was
RENTED to the superior court the defend
ant failed to answer within the time pre-
scribed 10y the statute, but applied to the
court for leave to do so after the expira-
ton of such time, and with such ap
plication presented a proposed an
swer, which, among other things, alleged
t1a% ~
marriage the plaintiff had informed the
defendant that he was 10 years of age.
Leave to put in the answer was granted on
condition that the above averment be
stricken tn 9refrom, and the answer was
amended accordingly, and served and
| filed. Subsequently the defendant ap-
piled to the court for leave to amend
her answer by charging therein
that the plaintiff falsely and frauduIently
had represented to her prior to the mar
riage that he was 10 years of
age, and that she Beloved
such representation and entered
into the marriage relying on the truth
thereof; and asks leave to plead such re-
presentation in her answer as an estoppel
upon the plaintiff to allege that he was I'M
| der IL years of age at the time of the mar
riage. The superior court granted leave
| to serve and file such amended answer,
and the plaintiff appeals to this court
from such order.
Our statutes provide that when either
of the parties to marriage shall be inca
pable of asserting thereto, they not hav-
ing voluntarily cohabited after
they they had attained the age of consent,
the marriage shall be void from such time
as shall be fixed by the Judgment of the
court declaring the nullity thereof, and
either party thereto may maintain an ac-
ton to annul the same"
The statute places no other restriction
on the right of action tnan The one con-
tanned In the above section, and this court
in its opinion holds, that if the legis-
iature had intended other restrictions
it wonld have expressed them, and that
a court has no right to interpolate restric.
tions for the Legislature and thus usurp
its province. The opinion also suggests
that if an infant was incapable by reason
of lack of age to contract marriage ne
| was also incapable Of making false repre-
sensations which would estop him from
pleading such lack of age when he attained
his majority. These questions, however,
were no. considered in the opinion as fair
ly raised on his appeal and were decided
| simply for the future convenience of the
parties on the trial.
TIE opinion then comedies for the sake
of argument that the plaintiff could be thus
estOpped, and yet holds that the unavoi1a.
/ BILE inference from the answer is that the
defendant knew that the plaintiff was I'M
der Fl if not under 19 years of age and had
parents living, and was also chargable
with knowledge of the provisions of our
| statutes which require the consent of the
parent as guardian of the minor in such
! cases, and that the answer does not allege
that any such consent was given.
The order of the superior court is there
fore reversed. But the court states that
this decision is not intended to prevent
the defendant from introducing proper
answer.
Gets a New Trial
The facts In the vase of George Jackson
VS.. the state of Wisconsin are as follows:
On the night Of December 81, 1889, the
barn of William Summers, of the town of
Eagle, Waukesha county, was broken into
and twenty bushels of wheat stolen there
from. The next day Summers swore out
oearch warrant, and the officer having
the same seized twenty bushels of wheat
which he found in the granery of the de-
PENDANT, George Jackson George jack
son and one William Sones were then ar
rested and held to bail. Soon after
George Jackson brought an action of re-
pleven against the officer who had seized
the wheat and recovered the same.
Sones defaulted and his bail was forfeited
and the civil action was then brought
against George Jackson alone. On the
first trial the jury disagreed On a second
trial the jury, after being out eleven and
half hours, brought in verdict of