Reinke vs. Wright. demand of payment at the door of the abandoned place of business of the makers was sufficient. The rule The rule is elementary that if, prior to the maturity of the note, the maker abandons his place of business, if he has another, or his place of residence is known or may by reasonable diligence be ascertained, presentment and demand of payment must be made at such new place of business, or such place of residence, and that the presentment at the old place is insufficient. Daniel, Neg. Inst. § 637, and cases cited. But it is contended that presentment and demand in this case are excused because the makers were insolvent, and counsel for respondent on this subject cite Tiedeman, Comm. Paper, § 358, note 5, to the proposition that, where the maker has absconded or is insolvent, presentment is unnecessary; but such is not the law as laid down by Tiedeman. On the contrary, the text is, "If the maker has absconded, especially if he is insolvent, presentment is not necessary anywhere, not even at the old place of business." To the same effect is Daniel, Neg. Inst. § 1144, and cases there cited. The rule, to which there is no exception, is that mere insolvency does not excuse presentment to the maker and demand of payment. The fact that the drawer will suffer no injury or wrong in case of default in the presentment is not sufficient excuse, whether because there are no funds in the drawee's hands or on account of the bankruptcy or insolvency of the maker occurring before maturity. Tiedeman, Comm. Paper, § 366, and cases cited. It is further claimed that there was a payment made by the indorser after the maturity of the note, and that such fact constitutes a waiver of presentment to and demand of payment of the maker, under the rule recognized in Knapp v. Runals, 37 Wis. 135. The evidence does not show any payment made by the indorser. Such rule is applicable only where the indorser makes some payment under such circumstances as to recognize his liability as an indorser. Donovan vs. Chicago & Northwestern R. Co. Payment under such circumstances constitutes prima facie evidence that the indorser was duly charged by a proper presentment, demand, protest, and notice. Here the only payment made was $200, realized out of the mortgaged property, which was in no sense a payment by appellant. The finding of the circuit court, to the effect that the note was duly presented for payment, and that the appellant is liable as an indorser, is contrary to the law and the evidence. By the Court.-The judgment of the circuit court is reversed as to appellant, J. K. Wright, and the cause remanded with directions to render judgment in his favor. DONOVAN, Respondent, vs. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant. May 2-May 22, 1896. Railroads: Fire set by locomotive: Evidence: Immaterial errors: Notice of claim: Excessive damages: Remission of part: New trial. 1. In an action for injury to lands caused by a fire set from a locomotive, evidence that cinders from passing locomotives usually lodged upon the right of way, as to the direction and nature of the winds at the season of the fire and their liability in that section of the country to change suddenly, and as to the liability of dry grass on the right of way to take fire - although some of it was perhaps immaterial and related to matters of common knowledge is held not to have prejudiced the defendant, and the error, if any, in its admission is therefore disregarded. 2. Although the fire complained of in such a case is not traceable to any particular locomotive, it is competent to prove defendant's negligence by circumstantial evidence. 3. Evidence as to what the lands had previously produced is admissible in such a case upon the question of damages. 4. The objection to a question calling upon a witness to state what, in his judgment, was the damage caused by the fire to the plaintiff's land, should have been specifically to the form of the question; Donovan vs. Chicago & Northwestern R. Co. and the overruling of a general objection to such a question was not error. 5. Error in allowing the complaint to be amended, more than a year after the fire, so as to bring into the case lands as to which no notice had been given as required by ch. 202, Laws of 1893, and in allowing proof of the injury to such lands, and in refusing to grant a nonsuit as to them, is cured by setting aside the verdict as to all damages in respect to those lands. 6. In a tort action, where there is no fixed legal rule of compensation, a court is not at liberty to set aside a verdict on the ground that it is excessive, unless it is so excessive as to create the belief that the jury have been misled either by passion, prejudice, or igno rance. APPEAL from a judgment of the circuit court for Brown county: S. D. HASTINGS, JR., Circuit Judge. Affirmed. For the appellant there was a brief by Winkler, Flanders, Smith, Bottum & Vilas, and oral argument by W. K. Gibson. To the point that the verdict should have been set aside absolutely, and a new trial granted, they cited Schultz v. C., M. & St. P. R. Co. 48 Wis. 375, 381, 382. For the respondent there was a brief by Greene, Vroman & Fairchild, and oral argument by H. O. Fairchild and J. R. North. They argued, among other things, that conceding that Schultz v. C., M. & St. P. R. Co. 48 Wis. 375, goes to the full length claimed for it by appellant, it is clear that this court has not followed it in later cases. See McLimans v. Lancaster, 63 Wis. 596, 609; Corcoran v. Harran, 55 id. 120; Heddles v. C. & N. W. R. Co. 74 id. 239, 259; Gillan v. M., St. P. & S. S. M. R. Co. 91 id. 633; Dugan v. C., St. P., M. & O. R. Co. 85 id. 609; Waterman v. C. & A. R. Co. 82 id. 613, 637; Bright v. Barnett & Record Co. 88 id. 299, 310.. CASSODAY, C. J. At the times mentioned the plaintiff was the owner and in possession of 1,172 acres of land in the town of Suamico, in Oconto county, and some distance west of these lands the defendant's tracks run in a northerly and Donovan vs. Chicago & Northwestern R. Co. southerly direction. The amended complaint alleges, in effect, that August 7, 1893, a fire was negligently started by the defendant at or near its track, by coals of fire and sparks escaping from the passing locomotives of the defendant, owned and operated by it, falling upon the dry grass and other combustible material on the defendant's right of way at a point named; and from thence the fire so set spread over and upon the premises of the plaintiff described, and destroyed and injured the timber, hay, grass, buildings, and fences on the land of the plaintiff, to his damage in the sum of $8,500; that, November 18, 1893, the plaintiff gave to the defendant due notice in writing, signed by her and her attorneys, stating the time and place where the damage occurred and that satisfaction therefor was claimed of the defendant, as provided in ch. 202, Laws of 1893; and demands judgment for the sum named. The answer consists of admissions and denials. At the close of the trial the jury returned a verdict to the effect that they found in favor of the plaintiff and against the defendant for the sum of $165 damages to the 165 acres of land in question in section 7, and lot 4 of section 6, and $3,500 for damages to the remaining lands of the plaintiff not included therein. The defendant having moved to set aside the verdict and for a new trial, upon the ground, among others, that the damages were excessive, the court granted the motion on the ground last stated, unless the plaintiff, within twenty days, should remit from the verdict all but $2,500, and take judgment for that amount. The plaintiff having so remitted, it was ordered by the court that the motion to set aside the verdict and for a new trial be, and the same was thereby, denied; and it was further ordered that judgment be entered in the action in favor of the plaintiff and against the defendant for $2,500 damages and for the costs and disbursements to be taxed. From the judgment entered thereon accordingly the defendant brings this appeal. Donovan vs. Chicago & Northwestern R. Co. 1. We perceive no reversible error in admitting evidence tending to prove that cinders from passing engines usually lodge upon the right of way; nor that during the month of August, 1893, there were some pretty high winds, and that the winds in that section of the country were liable to change suddenly; that, as a general thing, at dry seasons of the year, there were more south, southeast, and southwest winds than any other; and that when the grass on the right of way was dry, fire was liable to ignite therein, and smoke to rise therefrom. Some of such evidence may have been immaterial, and such as the jury and everybody of common observation and experience would know as well as the witnesses; but it would seem to be of such a nature as not to prejudice the defendant, nor affect its substantial rights, and hence the error in admitting the same, if any, should be disregarded. R. S. sec. 2829. The fact that cinders from passing engines usually lodge upon the right of way indicates the necessity of exercising ordinary care in keeping the right of way free from dry and combustible material. In the case at bar the fire was not traceable to any particular engine. Neither was it in Beggs v. C., W. & M. R. Co. 75 Wis. 444. Nevertheless, we think it was competent here, as it was there, to prove the defendant's negligence by circumstantial evidence. 2. In proving damages we perceive no objection to proving what the lands had previously produced. True, witnesses were permitted to testify what, in their judgment, was the damage caused by the fire to the particular pieces of the land in question; but the objection each time was general, and not specifically to the form of the question, which otherwise might have been corrected at the time. The overruling of such general objection to such a question is not reversible error. Evans v. Sprague, 30 Wis. 303; State ex rel. Swenson v. Norton, 46 Wis. 337; Kollock v. Parcher, 52 Wis. 401. 3. As the law now stands, no action can be maintained |