The parties by their attorneys stipulated in. writing that this case, then pending in Barron county, should be tried at a regular term of the circuit court for Washburn county in the same circuit, “without prejudice and in like, manner and with like effect and to all intents and purposes-as if tried in Barron county.” Accordingly the case was tried before the court and a jury in Washburn county, a special verdict returned, and judgment ordered for the plaintiff,, and the papers were then certified back to Barron county, where the clerk of that court, pursuant to the order for judgment, signed the judgment appealed from.
1. It is now contended by appellant'that the circuit court for Washburn county never acquired jurisdiction and that the judgment entered in Barron county is void. This contention cannot be sustained. The stipulation was not a change of the. place of trial within the rule of Swan v. Porter, 96 Wis. 34, 70
2. A complaint stating as this does that one of the plaintiffs was owner in possession and the others were mortgagees of a stated quantity of timber and lumber of the value of $2,230 (cut from described lands), and that the defendant unlawfully took and converted the said property and all of it to his own use, to the damage of plaintiffs in all in the sum of $2,230, states a good cause of action, and upon oral demurrer is sufficient.
3. Where an answer justifies the taking and conversion by virtue of a bill of sale from one of the plaintiffs and another person, as in this case, and avers that the bill of sale was executed to the defendant to secure the payment of a note for $350 signed by the defendant at the request of and for the accommodation of one of the plaintiffs, and a schedule annexed to the bill of sale therein referred to and part thereof shows that it was given as security, the affirmative defense of justification is by our statute deemed at issue without reply on the part of the plaintiffs (sec. 2667, Stats. 1898), and the plaintiffs may show in avoidance of such bill of sale that part payment and substituted security in part were given to the defendant, in consideration of which, prior to the alleged tak
. 4. In such case it is not necessary that the hank to which he gave his accommodation note consent to the release of the chattel mortgage. Bassett v. Hughes, 43 Wis. 319, and such like cases are not in point here. The mere fact that a surety receives security from his principal does not incapacitate the surety from dealing with his principal with reference to such security. Eo one but the creditor or a cosurety, under certain equitable circumstances not at all present here, can object to such release, and the bank is not here objecting. Eo other assignments of error seem sufficiently serious to call’for further discussion.
By the Gowrt. — Judgment affirmed.