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1860.

June Term, they may not be attacked and overthrown according to the rules of evidence which govern other cases. The general GILLETT et al. principle which authorizes the reception of admissions, name

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ly, that whatever a party, contrary to his own interests, voluntarily admits to be true, may reasonably be taken for the truth, seems to be as applicable to such a case as any other. We can see no reason for the exception. And if the admissions are clearly and satisfactorily proved, and are such as to convince the court of their truth, we are unable to see why they may not be acted upon. In this case, when taken. in connection with the facts admitted in the answer, and the circumstances of possession and control of the land, they satisfactorily establish the allegations of the bill. The theory upon which it is sought to exclude them, would, if adopted, extend to their exclusion in all cases where, according to the former system, there was an answer under oath, without regard to their character or the manner in which they were made; and it would follow that written admissions, contrary to the averments of the answer, no matter how many times repeated, if not under oath,would be of no avail to the plaintiff. Such, it seems to us, could not have been the law.

The testimony of the witness Edwards, whom the defendant claims to have been one of the parties to the contract, does not shake the case made by the plaintiff's in the least. It is true that he testifies that he claimed a portion of the land in question prior to the land sales, and that he and Gillett, the deceased, appointed the defendant to enter it for them. But his testimony on this subject is so very meagre, and couched in such language, that the impression that he and Gillett, and the defendant, never talked together at all until long after the sales, is unavoidable. He swears to no bargain or agreement between them. He says that he and Gillett "did appoint Robbins to enter the land," &c.; from which the only legitimate inference is, that whatever understanding there might have been between him and Gillett, it was one to which the defendant was not a party, and which was arrived at when he was not present. His testimony further shows, that by his agreement or understanding he was to look to Gillett for whatever title or interest he claimed.

1860.

He speaks about having tendered to him his portion of the June Term, purchase money. He claims to have advanced no part of it, but admits that it was all paid by Gillett. This as to him would make the contract clearly within the statute. He had no rights which could have been enforced.

Judgment affirmed.

MOYER

V.

Соок.

MOYER VS. COOK.

The words "personal service," in section 27, chapter 132, R. S., 1858, mean service by delivery of a copy of the summons and complaint, or of the summons only (as the case may be), to the defendant personally. In case of service by copy left at the defendant's place of abode, the plaintiff should apply to the court for judgment.

Where a judgment has been entered by the clerk under that section, and a motion made to set aside the judgment, on the ground that there had not been a personal service of the summons, leave should be granted for the sheriff to amend his return, if an amendment thereof, according to the facts, would show such personal service.

APPEAL from the Circuit Court for Pierce County.

Action on a promissory note, brought by Moyer, the payee, against Cook, the maker. The sheriff's return showed a service of the summons and complaint upon the defendant, by leaving true copies thereof at his last and usual place of residence in Pierce county, "with his brother, Gamalien Cook, a person of suitable age and discretion, and informing him of the contents thereof, on the 4th day of September, 1858." On the 27th day of the same month, the clerk of the court, upon application of the plaintiff's attorney, and his affidavit of no answer or demurrer, entered judgment against the defendant for the amount claimed to be due on the note, with costs, &c. In January, 1859, Cook moved to set aside the judgment on the ground that there had been no legal service of the summons, and that the clerk had no authority to enter judgment without proof of personal service. The motion was founded upon an affidavit by the defendant, that he had resided since August 2, 1858, in Rock county, and

June Term, 1860.

MOYER

V.

Сооk.

July 30.

that no service of the summons had been made on him as required by law, &c. The plaintiff's counsel asked leave to have the sheriff amend his return according to the facts, by inserting the words, "defendant not found," and after the word "county," the words "in this state," and after the word "Cook," the words "a member of the family;" but the court refused to grant such leave, the plaintiff excepting, and ordered that the judgment be set aside with costs; from which order the plaintiff appealed.

P. V. Wise, for appellant:

1. The summons and complaint were served according to law. Code, p. 14, § 38, and subdivision 4 of § 39; 15 John., 196. 2. The defendant did not show that manifest injustice had been done him; he did not even make an affidavit of merits or ask for leave to answer. How. Code, 560; 18 Barb., 387-392; 2 E. D. Smith, 125. The affidavit should have shown a defense. 6 Hill, 628. J. S. White, for respondent:

Section 27, chap. 132, R. S., is the only statutory provis ion authorizing the clerk to enter judgment on failure to answer, and that expressly requires proof of personal service. The power there conferred on the clerk was unknown to the practice at common law, and the grant must be strictly construed.

By the Court, PAINE, J. If the amendment of the sher iff's return according to the facts, would have shown a good service, so as to authorize the entry of the judgment by the clerk, it should have been allowed. But we do not think the amendment proposed would show such service. Section 27, chap. 132, R. S. 1858, authorized an entry of judgment by the clerk only on filing proof of "personal service." Sec. 9, chap. 124, provides that the summons shall be served by delivering a copy "to the defendant personally," or if not found, by leaving it at his usual place of abode, &c. We think the personal service required by sec. 27, chap. 132, is only that where the copy is delivered to the defendant personally, as required by sec. 9, chap. 124, and not that where it is left at his place of abode. This is the strict meaning of personal

service. It is the actual delivery of the process to the defendant in person, as distinguished from other modes of service which the law allows.

It was argued with some force by the appellant's counsel, that as the other subdivisions of sec. 27 provide only for an application to the court for judgment where the service was by publication, it is to be presumed that the legislature intended by "personal service" in the first subdivision, all other modes of service except that by publication. But as the validity of this first subdivision, in authorizing a judgment without the intervention of any judicial officer whatever, has been questioned, and was sustained last term by a divided court, we are inclined not to extend it by construction beyond what its words clearly import. And we hold, therefore, that the personal service there required is an actual service upon the defendant. In case of service by copy left at the defendant's place of abode, the plaintiff should apply to the court for judgment.

The order appealed from is affirmed, with costs.

June Term, 1860.

DODGE COUNTY
MUT. INS. Co.

V.

ROGERS.

DODGE COUNTY MUTUAL INSURANCE COMPANY VS. ROGERS.

In an action upon a fire policy, the court refused to instruct the jury that any in-
crease of the risk after the insurance was effected, by means within the con-
trol of the assured, rendered the policy void; the policy containing an ex-
press condition to that effect, and there being some evidence tending to show
a breach of the condition: Held, that the instruction should have been
given.
Where the application for a fire policy contains a question to be answered by the

applicant, as to the mode in which the building offered for insurance is to be
occupied, and the agent of the insurance company is informed by the appli-
cant of the intended mode of occupation, but fills out the application without
inserting any answer to that question, the company, by issuing the policy
without such answer, waives it, and cannot afterwards object to any use of
the premises of which the agent was fairly notified. Otherwise, where the
agent has knowledge only that the building has been at some previous time
used for a hazardous business, but does not know that it is being used in that
manner at the time of the application, or that it is the custom or intention of
the applicant so to use it.

ERROR to the Circuit Court for Fond du Lac County.
The Dodge County Mutual Insurance Company insured
VOL. XII-22

1860.

MUT. INS. Co.

V.

ROGERS.

June Term, Rogers against loss by fire, upon a barn and its contents, for five years from the 18th of November, 1856. These having DODGE COUNTY been destroyed by fire in July, 1858, and the company hav ing refused to pay the loss, Rogers brought this action to recover the sum insured. Among the conditions annexed to and forming part of the policy, was the following: "If, after insurance effected, the risk shall be increased by any means whatever within the control of the assured, such insurance shall be void and of no effect." The defense set up in the answer was, among other things, that for about one year be fore the loss of the barn, and up to and at the time of the loss, it had been and was used by the plaintiff, without the knowledge or consent of the defendant, as a carpenter's shop, sleeping room, &c., and that the risk had been thereby greatly increased. On the trial the plaintiff, as a witness in his own behalf, testified as follows: "I cannot say that the barn was used as a sleeping room at the time of the application for the policy. It had been used for that purpose during the previous summer. I had lumber in the barn at the time the policy was applied for, both dressed and undressed. The barn, at and before the time of making the application, had been used for dressing lumber. There was a carpenter's work bench in the barn at the time the application for the policy was made. The agent, McKee, knew at the time the application was made, that the barn had been used for such purposes, for I told him of it, and he had seen the lumber stored in the barn. The application bears date the day it was made. I do not know that there was a carpenter at work in the barn on that day. I cannot say that there were any beds in the barn at that time. The application was made at Ripon, four miles from the barn." The application, as filled up, contained no answer to the question, how the barn was occupied. The plaintiff also introduced evidence of the insurance, loss, &c.

The defendant introduced evidence tending to prove the facts alleged in its answer.

Among the instructions to the jury asked for by the counsel for the defendant, and refused by the court, was the following: "Every increase of the risk after the insurance, with

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