and responsible only for the faithful performance of his duties as such; but he is an officer of the court, and a part of his duties consist in recording the will, direction, and judgment of the court. To that extent he is the amanuensis of the court. The sanctity of his record, when so acting, is by reason of the fact that it proceeded from the court. To disregard the direction of the court, and fill the blank in a judgment in defiance of such direction, is to presumptiously refuse to perform the duties of an amanuensis and clerk, and assume the functions of the court. The toleration of such a practice would not be promotive of justice, nor serve any good purpose. The costs and disbursements having, in effect, been inserted by the clerk in the judgment without authority, there can be no question as to the power of the court to stay proceedings on an execution issued for the collection of the same. Such right of staying proceedings on process of the court by the court, is essential to its administration, and has often been sanctioned. Lansing v. Orcutt, 16 Johns. 4; Smith v. Page, 15 Johns. 395; Chipman v. Bowman, 14 Cal. 157; Logan v. Hillegass, 16 Cal. 200; Nan v. Suelflohn, 45 Wis. 438. Many cases might be cited were it necessary. Some of the above cases hold that the proper remedy is by motion in the case, and not by injunctional order in an independent suit for that purpose, as counsel contend. For the reasons given, we think the order of October 6, 1882, should also be affirmed. 3. The order of October 24, 1882. The clerk having filled the blank in the judgment with the amount of costs and disbursements as originally taxed by him, without retaxation, or consent of or notice to the plaintiffs or their attorneys, and in defiance of the order of the court, the same was a nullity, and properly erased and expunged from the judgment. Such practice was sanctioned in Henderson v. Allen, 13 N. W. REP. 928, and Johnson v. Curtiss, 51 Wis. 595; [S. C. 8 N. W. REP. 489.] In this last case an order refusing to so strike out an unauthorized insertion of costs was reversed by this court. The three several orders appealed from are each affirmed GOLDEN v. GLOCK. Filed February 20, 1883. Deed of sale conveying the timber on certain land, in which it was agreed and understood "that the timber transferred should be removed within" the time named therein, construed and held, following Strasson v. Montgomery, 32 Wis. 52, that the legal effect of the instrument was to convey all the trees and timber designated which should be removed within the time prescribed, and that such as remained thereafter should belong to the grantor or his grantee of the premises, and that no action would lie against such grantee for detention of any timber except what had been cut before the expiration of the time named in said instrument. Appeal from circuit court, Waupaca county. This action was brought in justice court to recover six cords of red-oak stave bolts, and damages for the detention of the same. The plaintiff recovered in that court and the defendant appealed to the circuit court, where the case was tried under a stipulation between the parties, upon the evidence returned by the justice, and a contract or bill of sale from Gilbert Allen, under his band and seal, to Meiklejohn, Hatten & Co., dated and executed April 29, 1878, and duly witnessed, acknowledged, and recorded May 29, 1878, and by which Gilbert Allen, in consideration of $900 to him in hand paid, bargained, sold, granted, and conveyed to Meiklejohn, Hatten & Co., their executors, administrators, and assigns, all of the timber standing, lying, or being upon the quarter section described, (except the white oak,) to have and to hold the same unto the said parties of the second part therein named, their executors, administrators, and assigns, forever, with a warranty of title. And it was therein agreed and understood that the timber on the south half of the premises should be removed within one year from the date thereof, and the balance within two years. It was agreed that the plaintiff had succeeded to all the rights that Meiklejohn, Hatten & Co. had to the timber under that bill of sale, and no other or greater. The defendant claims title to the stave bolts in question under and by virtue of a deed of conveyance of the land from said Gilbert Allen and wife, under their hands and seals, to him duly executed, witnessed, and acknowledged, and delivered November 11, 1879, and recorded November 22, 1879. From the covenant against incumbrances in said deed, there was expressly excepted the right to go onto the land and remove the redoak and basswood timber on or before April 1, 1880. It was also agreed that the stave bolts in controversy were cut before the time limited in the bill of sale, but had not yet been removed from the land, and that the defendant had forbidden the removal of the same after the expiration of the time limited. The circuit court found that the defendant was the owner and entitled to the possession of the stave bolts, and that their value was $18, and assessed the damages for the defendant for the detention of the same at six cents. From the judgment entered thereon the plaintiff brings this appeal. John T. Dufour and E. L. Browne, for appellant, Edward Golden. John Fordyce, for respondent, Albert Glock. CASSODAY, J. The bill of sale or deed to the parties under whom the plaintiff claims, undoubtedly transferred an interest in the land. Strasson v. Montgomery, 32 Wis. 52; Young v. Lego, 36 Wis. 394; Daniels v. Bailey, 43 Wis. 566. By its terms it purported to give title to the timber named, to be removed within the time specified. Upon the one side it is claimed that such title continued after the expiration of the time specified, and on the other that it then terminated. Both sides invoke the decision of this court in support of their diverse contentions, and cite Rich v. Zeilsdorff, 22 Wis. 519; Strasson v. Montgomery, 32 Wis. 52; Martin v. Gilson, 37 Wis. 360. In Rich v. Zeilsdorff the deed reserved the right to cut and remove the timber within two years, and it was "held that the absolute right of property in the trees was not excepted out of the estate granted, but only a right reserved to enter within two years, to cut and remove the same." In Martin v. Gilson the reservation was quite similar, and the decision was the same way. Strasson v. Montgomery was more like the case here presented. In that case the defendant claimed the trees and timber under a deed executed December 4, 1866, by one Gleason to one White, whereby all the trees and timber on the land were bargained, sold, and conveyed to White, but with this proviso: "Provided, always, and these presents are upon this express condition, that the said party of the second part shall take all of said trees and timber off of said lands within four years from this date." It also contained a covenant of warranty. Subsequently White sold and conveyed the trees and timber to the defendant. The plaintiff. on the other hand, claimed the trees under and by virtue of a deed of the land to him from Gleason, executed in September, 1867, wherein Gleason had reserved to White the right to take off the timber until December, 1871. The action was for removing trees and timber in November, 1871, being after the expiration of the four-years' limitation in the deed to White, but prior to the time fixed in the reservation in the deed to the plaintiff. The court held, that notwithstanding the time fixed in the reservation in the deed to the plaintiff had not expired, yet that the defendant had no right to cut and remove the timber after the expiration of the four-years' limitation in the deed to White. That case is substantially like this, unless the fact that the words fixing the limitation in the deed under which the plaintiff here claims, not being in the form of a proviso, as in the deed to White, makes the two cases distinguishable. After careful consideration, we are constrained to hold that the two cases are not distinguishable in principle by reason of the difference in the phraseology employed. In the deed before us it is expressly "agreed and un derstood" that the timber transferred "shall be removed within " the time named, and hence the grant was necessarily made upon that condition. As stated in substance in Strasson v. Montgomery, the legal effect of the instrument was to convey all of the trees and timber designated, which should be removed within the time prescribed, and that such as remained thereafter should belong to Allen or his grantee of the premises. Such being our construction of the deed, we must hold that under the rule adopted in Strasson v. Montgomery the plaintiff here had no right to any of the trees and timber not removed from the premises prior to April 27, 1880, at which time the limitation in the deed under which he claimed expired. But here the stave bolts were cut before the time limited in the deed. The trees from which the bolts were manufactured having thus been severed from the soil prior to the expiration of the time limited, and their character essentially changed by such manufacture, so that the product became personal property, we think they were, in effect, thereby removed from the premises within the meaning of the conditions in the deed, and hence that the plaintiff, even after the expiration of the two years, had an implied right or license to go upon the premises and take therefrom the stave bolts so manufactured. Because the trial court held to the contrary, the judgment must be reversed, and the cause remanded with direction to enter the proper judgment for the plaintiff. STATE OF WISCONSIN ex rel. SUP'RS OF IOLA v. NELSON. 1. The description of the petitioners, in a petition for the alteration of a highway in a town, as "freeholders residing in said town," must be construed to mean "residents of the town, having a freehold estate therein." Damp v. Town of Dane, 29 Wis. 419; Rev. St. § 1265. If this were not suflicient to show prima facie that the petitioners were qualified, the fact that the supervisors acted upon the petition, and disposed of it on its merits, is sufficient to cast the burden of showing the disqualifi cation upon the party asserting it. 2. A notice of the meeting of the supervisors to decide upon such a petition, stating that the peti tion was made June 13, 1-81, and appointing "Tuesday, the twenty-eighth day of June, at 1 o'clock P. M., at the house of N. C. Nelson," as the time and place of meeting, but not specifying the year in which such meeting would be held, nor stating affirmatively that such place was within the town, is held to be sufficient. 3. Though such notice does not specify the tracts of land to be affected by the proposed alteration by an express enumeration of the government subdivisions, yet if it defines the proposed line of the highway by course and by reference to the lines of such subdivisions, so that there is no difficulty in ascertaining therefrom the tracts to be affected, it is a substantial compliance with section 1267, Rev. St. 4. Where the owners or occupants of the lands to be affected by a proposed alteration in a highway are the petitioners for such alteration, notice of the meeting to decide upon the petition need not be served upon them. 5. Where supervisors have considered and passed upon such a petition upon its merits, it will be presumed that they were satisfied, either by affidavit or otherwise, that the notices of their meeting were duly posted. Section 1268, Rev. St. 6. The notice of the time and place for appointing commissioners, on appeal from the decision of supervisors refusing to alter a highway, was referred to as a "notice of appeal" in the proof of service annexed thereto. Held, that there was no misnomer of the notice. 7. The fact that the persons upon whom such notice was served were two of the persons who, as supervisors, signed the order refusing to alter the highway, sufficiently shows their official character. 8. The appointment of one of the petitioners for the alteration of the highway as one of the commissioners on the appeal, is a mere irregularity, and may be waived by a failure to object to his competency at the time of appointment. 9. A failure of the commissioners on the appeal to file their decision within the time prescribed by sections 1279, 1280, Rev. St., does not invalidate such decision.-[STATE REP. Appeal from circuit court, Waupaca county. A petition was presented to the board of supervisors of Iola to alter a highway in that town. The board met at the time and place appointed for the purpose of deciding the application, and denied it. The present appellant, Nels C. Nelson, thereupon took an appeal from such determination, and such proceedings were had therein that commissioners were appointed to review the action of the supervisors. The commissioners reversed the order of the supervisors refusing to make the alterations prayed for. Thereupon the supervisors sued out of the circuit court a writ of certiorari to obtain a review of the determination of the commissioners. The circuit court held that such determination was erroneous and void in law, and gave judgment reversing and annulling the same, with costs against said Nelson. From the judgment of the circuit court Nelson has appealed to this court. Myron Reed and C. N. Gregory, for respondents, State of Wisconsin ex rel. Sup'rs of Town of Iola. John F. Dufur and E. L. Browne, for appellant, Nels C. Nelson. LYON, J. We quite agree with the learned counsel for the respondents that the statutes relating to the laying out of highways must be construed with reasonable strictness, and that, on certiorari to officers or tribunals not judicial, the courts will review and correct substantial errors in the proceedings, which do not go to the jurisdiction of such officers or tribunals. We further agree that if the supervisors had not jurisdiction to make the order refusing alter the highway in question, the court properly reversed the determination the commissioners, although no error or irregularity intervened after the supervisors' order was made. It was so held in Williams v. Mitchell, 49 Wis. 284: [S. C. 5 N. W. REP. 798.] Add to these one other rule, equally as well settled, to-wit, that error is never presumed, but must be made to appear af firmatively before the courts can take cognizance of it, and we are ready to consider the specific grounds upon which it is claimed the proceedings of the supervisors and commissioners were inoperative and void. 1. The petition for the alteration of the highway in question bears the signatures of 14 persons, who describe themselves therein as "freeholders residing in said town," and is addressed to the board of supervisors of the town of Iola, Waupaca county. Thus they describe themselves in the very language of the statute prescribing the qualifications of petitioners. Rev. St. p. 400, § 1265. On the authority of Damp v. Town of Dane, 29 Wis. 419, these words in the statute must be construed to mean "residents of the town having a freehold estate therein." Such being the meaning of the words as used in the statute, the same words employed in the petition must be held to have the same signification. If this were not sufficient to show prima facie that the petitioners were qualified, the fact that the supervisors, who presumably knew whether they were or not, acted upon the petition and disposed of it on its merits, is sufficient to cast the burden of showing the disqualification of the petitioners upon the party who asserts it. Nothing of the kind has been attempted. It is further objected that the petition fails to show that the highway proposed to be altered is in the town of Iola. We think the objection is unfounded in fact. 2. It is further objected that the notice of the meeting of the supervisors is fatally defective in that it does not specify the year in which the meeting would be held, or that the place appointed therefor-the house of N. C. Nelson-was in the town of Iola. The notice states that the petition was made June 13, 1881, and appointed “Tuesday, the twenty-eighth day of June, at 1 o'clock P. M." as the time of meeting. Inasmuch as the twenty-eighth of June, 1881, occurred on Tuesday, and will not again fall on that day of the week for several years, and inasmuch as the term of office of the supervisors, who were to act pursuant to the notice, would expire before another June, we are inclined to think that a person of moderate sagacity would have no difficulty in learning from the notice that the proposed meeting was to be held in June, 1881. Neither do we think any one could be misled to his injury by the omission to state affirmatively that the residence of N. C. Nelson was in the town of Iola. Presumably the place of meeting was within the jurisdic tion of the supervisors. It is further claimed that the notice does not specify the several tracts of land to be affected by the proposed alteration, as required by the statute. Rev. St. § 1267. True, it does not do so by express enumeration of government subdivisions, but it defines the proposed line by course, and by reference to the lines of such subdivisions, so that there is no difficulty in ascertaining from the notice what tracts will be affected by the proposed alteration, if made. We think this a substantial and reasonable compliance with the statute. Surely a petition for the laying out of a highway from the south quarter post of a given section on the quarter line to the north quarter post thereof, indicates unmistakably that the highway will be upon the eight 40-acre lots which abut said quarter-section line, and it would be mere surplusage to enumerate those lots. 3. Defective service of the notice was made upon two owners or occupants of lands affected by the proposed alteration. It does not appear that any such lands were owned by any other persons. Presumably they were not. These two persons were petitioners for such alteration. The statute provides that the applicants shall cause such notice to be served on the owners or occupants of such lands. Section 1267. This clearly excludes the idea that the notice must be served on the applicants if they happen to be such owners or occ pants. Having, by their petition, set in motion the legal machinery fo' laying out or altering the highway, and having thereby conclusively consented thereto, notice of the subsequent proceedings is of no value to them. It is their duty to give notice to those entitled to it. They are in no position to demand that they be served with such notice. As to the posting of the notices required by section 1267. Presumably the supervisors were satisfied that they were duly posted, either by affidavit or otherwise, (section 1268,) else they would not have considered and passed upon the petition on the merits as they did. However, an affidavit of the appellant was filed some time afterwards, which (although criticised by counsel) we think shows affirmatively that the statute was substantially complied with in that particular. 4. It is assigned as error in the proceeding that there is no sufficient evidence of proper service upon the supervisors of notice of the time and place commissioners on the appeal would be appointed. The appeal proceedings were had before the county judge pursuant to section 1276, Rev. St., and that officer issued the notice required by section 1277. The record contains an affidavit of due service of the notice upon one supervisor, and an admission of service by another supervisor of Iola, indorsed upon the notice. In the athdavit and admission, the paper served is called a notice of appeal, but it satisfactorily appears that it was the notice of the time and place of appointing commissioners. We do not think there was any misnomer of the notice served. It is said there is no proof that the persons thus served were supervisors of Iola; but they are two of the persons who, as such supervisors, signed the order refusing to make the proposed alteration of the highway. This sufficiently shows the official character of the persons served. 5. The supervisors did not appear when the commissioners were selected, and the selection was made as required by section 1279. It happened that one of the three commissioners thus selected was one of the petitioners for the alteration of the highway. It is settled that he was not disinterested, within the meaning of the statute, and was, therefore, not qualified to act as a commissioner. Williams v. Mitchell, 49 Wis. 284; [S. C. 5 N. W. REP. 798.1 It does not appear that any objection was inade to his competency before the county judge. Because there was no objection thereto, such selection did not invalidate the proceedings. It was a mere irregularity which could be waived, and was waived by the failure of the supervisors, or any one interested, to |