Volume 100 — Wisconsin Reports

BeNNett, Circuit Judge. ■ The appeal is from an order overruling the defendant’s demurrer to the plaintiff’s complaint in an action for the construction of a will, the objection to the complaint being that it did not state facts sufficient to constitute a cause of action.

BeNNett, Circuit Judge. Action against defendant John W. Norton for an accounting of his doings as executor of the last will and testament of Thomas H. Hills, deceased, and to have property inventoried by him as executor of the last will and testament of Jane A. Hills, deceased, and by her bequeathed by such will to her sister, adjudged a part of the estate of Thomas H. Hills, and to belong to plaintiff, Maury N. Burnham, and the heirs of Polena A. Hills, deceased, under his…

<p>Appeal from a judgment of the circuit court for Rock county: JohN R. BeNNEtt, Circuit Judge.</p> <p>One Rust was agent of plaintiff. He appointed Loomis Ms agent, under a written contract dated April 21, 1893, to canvass for applications for insurance in the plaintiff company. On May 15th Loomis gave Rust a bond, signed by defendants Hambm and Oram as sureties, with certain conditions, mentioned in the opinion. Plaintiff, at the request of Rust, advanced money to Loomis, at different times, to enable him to carry on his work. At different times, it is alleged, Loomis collected money on account of premiums payable to plaintiff on policies of insurance issued, and failed to account for the same, either to Rust or to plaintiff, although demand has been made on him so to do. The plaintiff brings this action upon the Loomis bond to Rust, claiming that, under the contracts and bond mentioned, Loomis was directly responsible to it for all sums he had received and not accounted for. The sureties answered, denying that Loomis was an agent of plaintiff; alleging Rust’s death, and that, if there was any liability on their bond, it was to his estate, and that plaintiff had no right to prosecute this action.</p> <p>The case was tried before a referee, who found substantially as follows: (1) That Rust was appointed a general agent of plaintiff on March 20, 1893, and continued to act as such until his death, about June 21, 1894. (2) That on April 24? 1893, Rust appointed Loomis Ms personal agent, and tbat be continued bis duties until tbe spring of 1894 (3) Tbat on May 15,1893, Loomis gaye Rust bis bond in tbe penal sum of $1,000 with tbe defendants as sureties. (4) Tbat on June 16, 1893, Rust again appointed Loomis bis agent, under a contract similar to the one of April 24th, except as to commissions allowed, and tbat tbe sureties bad no knowledge of this subsequent agreement until tbe trial of tbe case before tbe referee. (5) Tbat on April 24, 1893, Rust agreed to advance to Loomis $30 per week, to be charged against bis commissions, for three months; and afterwards said agreement was extended to January 6,1894, at which time it was cut down to $20 per week, and continued until February 10th. Tbe money so advanced was furnished by tbe company, and charged to Rust on its books, and no account was kept by tbe company against Loomis. (6) Tbat an action was commenced by tbe company against Rust’s bondsmen, and was settled. (7) Tbat Rust advanced to Loomis, as before stated, $1,260; and tbat Loomis was entitled to certain credits, leaving a balance due of $332.16. (8 and 9 omitted, as unimportant.) (10) Tbat no action bad been commenced by Rust, in bis lifetime, on tbe Loomis bond. As conclusions of law, tbe referee found tbat tbe plaintiff was entitled to judgment for tbe sum named.</p> <p>Both parties filed exceptions to tbe referee’s report. Plaintiff moved to modify the report, and defendants to modify and to re-refer as to certain particulars. In the meantime defendants took the deposition of Loomis and one Harris. Tbe matter finally came on for a bearing before tbe circuit court, and tbe judge made new findings; 1, 2, 3,4, and 5 being tbe same as found by tbe referee. In finding 6 tbe court found, tbat tbe advances to Loomis were made by Rust, and not by tbe company on Loomis’s account, and tbat tbe money paid over to Loomis by tbe company was on Rust’s account, and charged to him. In tbe eighth finding tbe court states that no right, title, or interest under the Loomis bond had ever been sold or transferred to the company by Bust or his administratrix, and that the company had, and has now, no right, title, or interest therein. As conclusions of law, the court found that the plaintiff had no right to maintain an action on the bond, and that the defendants were entitled to judgment on the merits.</p> <p>The plaintiff appeals from the judgment so entered.</p>

<p> Voluntary conveyance by aged person: Fraud: Undue influence: Burden of proof. </p> <p>1. Where a voluntary conveyance is made by an aged person of his entire property, without consideration and under circumstances of secrecy, to one who stands in a position of trust and confidence to him, the burden of proof is upon the grantee to show that the conveyance was not tainted with undue influence or fraud.</p> <p>2. The presumption of undue influence and fraud in this case, arising from such a conveyance by an aged father to his daughter, to the exclusion of the children of his son, is held not to have been overcome by the evidence.</p>

Dion, Circuit Judge. Action to recover possession of a quantity of oats beld by defendants on tbe alleged ground tbat they were entitled to do so by virtue of a lien tbereon for cleaning and elevator charges. Plaintiff admitted defendants’ claim to a special property in the oats to the extent of $56.49.

DicK, Circuit Judge. Ejectment for a small strip of land, containing about TVo-acres. On October 18, 1839, one John Rock entered tbe land owned by botb plaintiff and defendant. Tbe title to tbe east balf of tbe tract came by mesne conveyances to plaintiff, and of tbe west balf to defendant. In 1856 tbe title to plaintiff’s land was in one Philip Heavner, and that of defendant in Alois Mallsacher.

<p>Repoetbd from tbe circuit court for Marathon county: Chas. Y. BardeeN, Circuit Judge.</p>

<p>Appeal from an order of the superior court of Douglas county: Chaeles Smith, Judge.</p> <p>This is an appeal from an order appointing commissioners in condemnation proceedings upon the petition of Doherty. Doherty owns -the S. "W. ¿ of section 4, township 47 N., of range 11 V., in Douglas county, "Wisconsin, having made a homestead entry thereof November 8, 1882, and obtained a patent Eebruary 6, 1890. The appellant claims a right of way from east to west 100 feet in width across this quarter section upon which its railway line is constructed and operated. This right of way has never been acquired by the appellant or its grantor, the Northern Pacific Railroad Company, by purchase or by condemnation, but the appellant claims it by virtue of the terms of the act of Congress approved July 2, 1864, incorporating the Northern Pacific Railroad Company, and granting to it, among other rights- and privileges, a right of way through the public lands of the United States. This act authorized the corporation thereby created to construct a railroad “ beginning at a point on Lake Superior, in the state of Minnesota or Wisconsin,” westward to “some point on Puget Sound,” and the controlling question in this case is whether the eastern terminus of the railroad constructed under the act is at Duluth, Minnesota, or at Ashland, Wisconsin. If at Duluth,, then the company acquired no right of way over any public-lands in Wisconsin, but if at Ashland, then it did acquire-right of way over public lands in Wisconsin, including the-land in question, by virtue of the act of incorporation.</p> <p>The facts were not in dispute, and were all settled by a written stipulation. Prom this stipulation the following facts appear:</p> <p>On July 2, 1864, the land in question was public land of' the United States. On November 8, 1882, the petitioner, Doherty, made a homestead entry thereof, and thereafter complied with the homestead laws, and received a patent from the United States, purporting to convey the lands, February 6,1890. In December, 1883, the Northern Pacific-Railroad Company took possession of the strip in controversy, and constructed a railroad upon it, and remained in possession operating the railroad until August 31,1896, when all the property, rights, and franchises of said railroad company were sold to the appellant, the Northern Pacific Pcdl-wa/y Oom/pa/n/y, a Wisconsin corporation, which is duly organized to operate said railroad, and has occupied said strip for railroad purposes.</p> <p>The Northern Pacific Railroad Company, of which the appellant is the successor in interest, was organized by, and obtained its rights under, an act of Congress approved July 2, 1864, and entitled “An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound on the Pacific coast by the northern route.” By the first section of this act, a corporation created thereby was authorized to lay out and construct a continuous railroad and telegraph line beginning at a point on Lake Superior, in the state of Minnesota or Wisconsin, thence westerly upon the most eligible route, as shall be determined by said company, within the United States and north of the forty-fifth degree of latitude, to some point on Puget Sound. By the second and third sections of the same .act the right of way through the public lands of the United States was granted to said railroad company, its successors and assigns, for the construction of the line, and it was also provided that, if its route should be found to be upon the same general line as the route of another railroad which owned a previous land grant from the United States, the amount of said previous land grant should be deducted from the amount granted by this act, provided that the railroad owning the previous grant might assign its interests to the Northern Pacific Railroad Company, or might consolidate, confederate, and associate with said company upon the terms named in the first section of the act. The lands granted to the Northern Pacific Railroad Company by the act amounted to ten alternate .sections per mile on each side of the line within the states, and twenty alternate sections in the territories, with a ten-mile indemnity limit, and by resolution of Congress of May 31, 1870, an additional indemnity belt ten miles in width, was created on each, side of the line. This act was accepted by the company within the time required by law. The act also required the company to procure legislative consent of the states through which it was to run before its construction, and in the year 1865 the legislatures of Minnesota and Wisconsin gave such consent. The Minnesota act provided that, if the eastern terminus of the road should be located east of the eastern boundary of Minnesota, then that the company should construct or cause to be constructed a railroad from its main line to the navigable waters of Lake Superior at some point within the state of Minnesota.</p> <p>In 1870 the company located its general route from the mouth of the Montreal river in Wisconsin, across Wisconsin and Minnesota, to a point on the Red River of the North, near Fargo, and transmitted a map showing this location, August 13,1870, to the Secretary of the Interior. This map showed the proposed general route to commence at the mouth of the Montreal river; thence a little south of west upon a direct line to a point directly south of, and about six miles distant from, the south end of Ohequamegon Bay; thence a little north of west upon a direct line crossing the state boundary between Wisconsin and Minnesota at or near the point where the St. Louis river becomes such boundary. Upon receipt of this map, the Secretary of the Interior transmitted it to the land commissioner, with instructions to withdraw from sale, homestead, and pre-emption all odd-numbered sections of land within twenty miles of the line within both states. This order was complied with by the land commissioner by directions given to the district land officers at Bayfield, Wisconsin. Such withdrawals were made, and the price of the even-numbered sections was raised to $2.50 per acre, and thereafter large quantities of such land were sold by the government at the rate of $2.50 per acre.</p> <p>In 1882 a map of definite location of said railroad from a point upon the St. Paul & Duluth. Railroad, now called “Thompson Junction,” eastward to a point in section 15, township 41 N., of range 2 W., in the state of Wisconsin, was prepared, and approved by the directors, and certified and forwarded to the Secretary of the Interior. The line of definite location laid down on this map followed- substantially the line of general location upon the prior map, but it turned to the north, and touched Superior, and also Ashland, and stopped some ten miles west of the mouth of the Montreal river. Upon receipt of this map of definite location the land commissioner, by direction of the Secretary of the Interior, adjusted the land grant in accordance with it, and prepared diagrams showing the limits of the grant and indemnity belts, and transmitted such diagrams to the district land officers, with the proper directions as to the withdrawal of lands, which were complied with.</p> <p>August 2,1884,the directors of the Northern Pacific Railroad Company adopted a resolution fixing the eastern terminus of the railroad at the city of Ashland, which resolution was duly certified and transmitted to the commissioner of the general land office December 3, 1884. Thereafter the commissioner prepared a diagram showing the final eastern terminus of the line at Ashland, and sent the same to the district officers at Bayfield, with instructions to adjust the grant on this basis. The point so fixed is on the line of definite location of July 6, 1882, but about twelve miles west of the east end of that line.</p> <p>The Northern Pacific Railroad Company constructed a continuous line of railroads from the city of Ashland to Puget Sound in all respects in accordance with its act of incorporation, and the whole line has been duly accepted by the President of the United States, as provided in that act. That portion of the road extending east from Thompson Junction was constructed upon the line of definite location shown in the map of 1882, and Avas constructed during the years 1881,1882,1883, and 1884. The first section extended from Thompson Junction to Superior, and was examined and reported favorably upon by commissioners in 1882, and the recommendations were approved by the President September 16, 1882. The second section, extending from Superior to the Brule river, was constructed in the latter part of 1883, and crossed the land in question here, and was approved in like manner January 31, 1884. The third section extends from the Brule river to Ashland, and was approved in like manner Eebruary, 1885.</p> <p>It appears further that March 6,1865, one Joshua Perham, then the president of the Northern Pacific Railroad Company, transmitted to the office of the land commissioner a map purporting to show the proposed general route of the Northern Pacific Railroad. Upon this map there appeared two lines from a point in the present state of North Dakota eastward, one terminating upon Lake Superior at or near Duluth, and the other extending into Wisconsin some distance south of Lake Superior, and terminating at the mouth of the Montreal river; this last-named line being apparently partially obliterated by a wavy red line. This map was accompanied by a letter from Perham, stating that it shows the general line of the Northern Pacific Railroad from a point on Lake Superior, in Wisconsin, to a point on Puget Sound. The Secretary of the Interior transmitted this map to the land commissioner, suggesting the withdrawal of the lands along the line, but the land commissioner soon after-wards transmitted a letter to the Secretary of the Interior recommending that the map be rejected, for the reason that the same did not comply with the rules of the land department, which recommendation was approved by the Secretary. There is nothing to explain the apparent alteration of this map, nor to shoAV when it was made, and it is not shown that the directors of the company ever authorized the making or filing of the map, Imt it appears that the president of the company had no power to make or file it.</p> <p>By act approved May 5,1864, Congress granted ten sections of land per mile to the state of Minnesota to aid in the construction of a railroad from St. Paul to Lake Superior. In the same year the legislature of Minnesota conferred this grant upon the Lake Superior & Mississippi Railroad Company, a Minnesota corporation, and afterwards known as the St. Paul & Duluth Railroad Company. On January 1,1812, this company had constructed and was operating a railroad from St. Paul to Duluth by way of Thompson Junction, which is upon the St. Louis river, and is the point from which the Northern Pacific Railroad Company started to build its line westward. On the last-named date, the Northern Pacific Railroad Company purchased a one-half interest in that part of this road extending from Thompson Junction to Duluth for the sum of $500,000, and received a deed therefor. On the same day the two companies made a written agreement providing for the operation of trains and the maintaining of the road. On May 1,1872, the Northern Pacific Railroad Company and the Lake Superior & Mississippi Railroad Company made a further agreement by which the lines of the Lake Superior & Mississippi Railroad were leased to the Northern Pacific Railroad for an annual rental, the land grant of the Lake Superior & Mississippi Railroad being expressly excepted from the operation of the lease. Pursuant to this lease the Northern Pacific Railroad Company operated the entire railroad thus leased from May 1, 1872, until February 1, 1874, when it surrendered the lines leased, and relinquished all its interests under the lease, but surrendered no rights under the deed. On the 12th of May, 1874, the Northern Pacific Railroad Company and the Lake Superior & Mississippi Company made an agreement for the operation of the line from Thompson Junction to Duluth.</p> <p>It further appears that by act approved May 5, 1864, the United. States granted lands to the state of Wisconsin to aid in the construction of a railroad from Bayfield to Superior, but no road was constructed under this grant.</p>

<p> Municipal corporations: Contracts: Extras: Defective plans: Matters to be determined by board of public works: Its decision, when final: negligence: Presentation of claims: Custom: Evidence: Settlement: Estoppel: Agency. </p> <p>1. A contractor for the construction of a wooden sewer cannot hold the city liable on the ground of imperfections in the plans because of the impracticability of making with such a sewer a certain required turn, where such impracticability was obvious on the face of the plans.</p> <p>2. Where a contract for the construction of a sewer provided that an extra foundation therefor, of the nature indicated in the plans, should be built whenever, in the opinion of the board of public works, the same should be necessary, and where, from the nature of the situation, no human foresight could determine in advance whether a foundation would be necessary or not, the contractor cannot hold the city liable for extra work alleged to have been made necessary by defective plans, on the ground that the plans did not absolutely require the extra foundation.</p> <p>3. It being, by the terms of the contract, a matter resting wholly in. the judgment and discretion of the board of public works whether an extra foundation should be required or not, the decision of the board in that behalf is 'final unless impeached for fraud or dishonesty; and where the board, after due consideration, has refused to order a foundation to be put in, no liability on the part of the city arises because the work is more expensive to the contractor than it would have been had the foundation been ordered; nor can such a liability be based on a finding that the board obstinately and unreasonably refused to order or permit the foundation to be placed under the sewer and that by reason thereof it was guilty of gross negligence.</p> <p>4. Where, by law and by a contract with a city, the board of public works was given power to adj'ust and determine finally all questions as to the proper performance of the work and the amount earned under the contract, and it was provided that the contractor must make out and present to the board a written statement of the amount claimed for extra or additional work and materials, there can be no recovery for such extras unless the claim therefor was presented or some legal excuse is shown for its nonpresen-tation; and, where the claim'had in fact never been presented, it is not a sufficient excuse that the board knew the contractor had a claim and had from time to time discussed matters with him, or that the board refused to act on his claims or to give him a full and fair hearing in the matter.</p> <p>5. The requirement that a written statement of a claim for extras should be presented was not complied with by the contractor going before the board with his accounts in his pocket, contained in various books of account; and the board was j'ustified in refusing to act upon the claim in that shape.</p> <p>6. The positive requirements of such a contract as to the presentation of claims for extras cannot be overturned by proof of a custom or usage to the contrary.</p> <p>7. A contractor for the construction of a sewer who expressly assumes all risk from the influx of water into the work cannot recover extra compensation for pumping out such water because the work proved more laborious or more expensive than he anticipated.</p> <p>8. Where a contractor for the construction of a sewer makes a claim to recover for extra labor and materials, and from the nature of the case it is impossible for the city to controvert the claim, it is not sufficient for him to show merely the expenditure of a certain amount of money in the work, but he must show by satisfactory evidence that the work for which the money was expended was entirely distinct from the original contract and directly connected with and necessary to the completion of the work.</p> <p>9. Where all the right of a contractor to compensation for extra labor and materials in certain portions of the work had accrued at the time a claim for such extras was presented and allowed by the board of public works, which board had power under the contract to adjust and determine finally all such questions, he cannot after-wards obtain additional compensation by including in his final bill a further claim for extras in respect to the work so settled for.</p> <p>10.In such a case, one who, though not the nominal contractor, was the real party in interest, is chargeable with the consequences of the acts of his representative, the nominal contractor, and cannot, after accepting the fruits of those acts, surcharge his accounts and plead ignorance of the situation.</p>

<p> Mutual benefit societies: By-laws: Amendment forfeiting membership: Prohibited business: “ Wholesaler of liquors: ” Waiver: Appeal: ¡Equity. </p> <p>1. One who accepts a certificate of membership in a mutual benefit society, subject to certain conditions and liable to forfeiture if he shall not comply with said conditions and “such by-laws as are or may be adopted by the head camp or the local camp of which he is a member,” is bound by an amendment to the by-laws, subsequently adopted, by which his membership becomes forfeited because he is-engaged in a business prohibited by such amendment.</p> <p>2. The fact that no action was taken in the matter until about three-years after the head consul of the society had knowledge that such member was engaged in the prohibited business, and that during that time the local camp continued to receive his dues and assessments, did not constitute a waiver of the forfeiture, where the head consul had no duty to perform in respect to receiving such dues- or assessments or in respect to the suspension of the member, and one of the conditions to which the contract was expressly subject provided that no officer of the society could waive such a forfeiture.</p> <p>3. A member of a mutual benefit society who, as clerk of a local camp, receives dues and assessments from himself after he has forfeited his membership by engaging in a prohibited business, does not thereby waive such forfeiture.</p> <p>4. A stockholder, officer, and salesman of a corporation dealing in liquors at wholesale is a “ wholesaler of liquors ” within the meaning of a by-law of a mutual benefit society providing that a member engaging in the occupation of a wholesaler of liquors should thereby forfeit his membership.</p> <p>5. Where, by the laws of a mutual benefit society, all decisions of the head consul are subject to an appeal to the executive council and from that to the head camp, one who feels aggrieved by a decision of the head consul that he has forfeited his membership-should pursue his remedy by appeal before applying to a court of equity for relief.</p>

Croix ■county: W. F. Bailet, Judge. They contended, inter aUa, that in the riyers of this state, especially small streams like the Willow river, the rule of the common law obtains as to the right of fishery. Such waters are private waters except as against the public right of floating logs. The water and the soil thereunder and the right to fish therein are capable of private ownership and belong to the owner of the land.

<p>Life insurance: Construction of policy: Interest of beneficiary: Suicide, when a defense: “ Violation of law: ” False statements as to health: Incontestable clause.</p> <p>1. In case of doubt or ambiguity the language of an insurance policy should be construed most strongly against the insurer.</p> <p>3.One to whom, as beneficiary, a policy of life insurance is payable or has been assigned has, until the insured makes a change of beneficiary, such a vested, subsisting interest in the policy as would pass to his personal representatives in case of death.</p> <p>3. Where third persons are beneficiaries, intentional suicide of the insured while sane does not avoid a policy of life insurance, in the absence of any provision in the policy to that effect. [What would be the rule in an action by personal representatives of the insured for the benefit of his estate, not determined.]</p> <p>4. Although suicide is technically a crime, it is not within the meaning of a clause in an insurance policy providing that death in consequence of, or in, violation of law is not covered by the policy, where the usual suicide clause is omitted and the policy provides that it shall be absolutely incontestable except for nonpayment of premiums or misstatement of age.</p> <p>5. False statements or concealment of the insured in respect to his health are covered by an incontestable clause in the policy.</p>

Action to recover damages sustained by the plaintiff in consequence of personal injuries received by him while engaged in. the employ of the defendant as a semaphorist on its line of road at Superior, Wisconsin, and caused, as it is. alleged, by the negligence of defendant.

<p> Watercourses: Dams: Tolls on logs: Construction of statute. </p> <p>1. Ch. Ill, Laws of 1891, authorizes S., “ for the purpose of improving the navigation of the St. Croix river,” “ to build or acquire, maintain and operate three dams across said river ” between certain points, “and also to build, maintain, and operate such booms and other improvements upon said river, between said points, as may be necessary or convenient to render the driving of logs upon said river from ” the upper of said points “to the head of Lake St. Croix reasonably convenient and certain.” It provides that, when S. “ shall have erected or acquired and shall maintain said dams here-inbefore authorized,” he may collect tolls “ on all logs or timber sluiced or driven through or by the aid of any one of said dams, or by the aid of the waters collected therein.” Held, that the purpose of the act was to improve the navigation of the whole river, to facilitate the driving of logs from the upper point mentioned down the river to the head of St. Croix Lake at Stillwater; and that the right to collect tolls is not limited to logs driven or sluiced through, or which pass over, or from a point above to a point below, one or more of said dams, nor, as to logs entering the St. Croix river below the lowest of said dams, is the right to tolls limited to such as are driven, by the aid of waters collected in one or more of said dams, from the point where the drive begins in the St. Croix down until they reach the flowage of another dam located further down said river.</p> <p>2. The erection or acquiring of two dams only between the specified points, instead of three, was not such a compliance with the act as authorizes the collection of any tolls thereunder.</p>

<p> Purchase of land jointly with vendor's agents: Fraud: Remedies: Money had and received. </p> <p>Plaintiff and defendants agreed to become jointly interested in, and copurchasers of, certain land. Defendants were agents of the vendor to make the sale. They paid the earnest money, and took a receipt from the vendor, specifying when subsequent payments should be made and providing that in case of default in any payments said earnest money should be forfeited, time being of the essence of the contract. Plaintiff afterwards paid to defendants, for the vendor, a sum equal to the earnest money paid by them, and also his half of the next payment, and this money was by them paid over and applied on the purchase in conformity with his instructions. Plaintiff thereafter failed and refused to make further payments, and defendants completed the purchase and sold the land again at a loss, receiving, however, no money upon such sale, but only other property which had not, when the action was commenced, been converted, in whole or in part, into money. The evidence tended to show that defendants were to receive from the vendor a large commission on the sale, but had falsely stated to plaintiff that no commission was allowed them and that the price agreed on was the rook-bottom price. Held, that plaintiff could not recover from defendants the money paid by him, as money had and received by them to his use. If injured by any fraud or deceit of defendants, his action should be founded thereon.</p>

BeNNett, Circuit Judge. They contended, inter alia, that the testimony strongly tends to show that plaintiff’s long-continued suffering, and the present diseased condition of her nervous system, are attributable to the negligence or unskilfulness of her physician, in failing to reduce the dislocation of her ankle at the proper-time. This result was not the natural and proximate se-quenee of defendant’s negligence.

<p>(1) Instructions to jury as to comments of counsel. (2) Attorneys: Liability for mistakes.</p> <p>L A charge that the jury must pay no attention to comments on the part of counsel or of the court is held, not a material error, where, in immediate connection therewith, the court charged that, in arriving at their verdict, the jury “ must take in evidence all the evidence and only the evidence;” that in running over the evidence it was for them to say what weight should he given to the testimony of each witness; and that they were the judges of the candor and fairness of the witnesses, and the only judges as to the weight that should be given to the testimony of each of the parties.</p> <p>2. If an attorney is fairly capacitated to discharge the duties ordinarily incumbent upon one of his profession, and acts with a proper degree of attention, and with reasonable care, and to the best of his skill and knowledge, he will not be responsible for an injury to his client from his errors or mistakes.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: A. J. YiNJe, Circuit Judge.</p> <p>This is an action to recover upon promissory notes aggregating over $31,000. The answer admitted the execution oi the notes, but alleged that the time for the payment of the same had been extended for a valuable consideration.</p> <p>The defendants were manufacturers of lumber at two small railway stations, called Hawthorne and Holmes, in Douglas county, Wisconsin. At the time of the commencement of the action the plaintiff made affidavit for attachment on the ground that the defendants were nonresidents ■of the state, and the sheriff seized upon the writ a large amount of personal property, consisting of sawmills and other buildings upon leased land, machinery, lumber, slabs, logs, horses, camp outfits, merchandise, etc., amounting to more than $30,000 in value by the inventory, and comprising practically the entire plant of the defendants at each of their sawmills.</p> <p>After service of the answer, a motion was made in due time to cause the answer to be made more definite in certain particulars, which motion was overruled, and the plaintiff excepted.</p> <p>The case was tried in November, 1896, the question of damages upon the attachment being tried, against the plaintiff’s objection, with the main issqe. A special verdict was rendered by the jury as follows: “ (1) Did plaintiff extend the time of payment of the notes upon which this action is brought? A. Tes. (2) If you answer ‘Yes’ to question numbered one, then was the time of payment extended up to and including November 20, 1895 ? A. Yes. (3) What sum of money will compensate defendants for the damages they have sustained by reason of the attachment proceedings in this case? A. $18,550.” Upon this verdict, judgment for the defendants for the amount of damages found by the jury was rendered, and the plaintiff appeals.</p>

D. HastiNgs, Je., Circuit Judge. Action for the recovery of damages claimed to have been sustained by the plaintiff by reason of the negligence of the defendant.

<p> Wills: Revocation of devise Toy subsequent contract to sell: Intention. </p> <p>Under sec. 2278, E. S. 1878 (providing that every devise of land shall be construed to convey all the éstate of the devisor therein, unless it shall clearly appear by the will that he intended to convey a less. estate), a devise of certain land was not revoked by the subsequent making of a contract for its sale by the testator, upon which a nominal sum only was paid, where there is nothing to indicate an intention to revoke the devise, and, though it seems evident that the testator did not intend to die intestate as to any of his property, yet that would be the result of a revocation of the devise, there being no residuary clause in the will.</p>

<p>Appeals from a judgment of tbe circuit court for Brown county: S. D. HastiN&s, Jr., Circuit Judge.</p> <p>Action to determine the proportionate amount of water power created by the Fox river as improved by the government dam across the same, known as the Grand Chute dam, belonging to the several parties to this action. The question involved on this appeal relates to the amount of such power owned by plaintiff under a title referable to a deed dated September 20,1862, conveying a part of the power, by the person then owning a considerable portion thereof, in the following language: . Privilege of drawing water from the river to the full extent and capacity of the bulkhead now there.” The court found that plaintiff, subject to some other interests, owned so much of the water 'power as was described in such deed, and that the bulkhead maintained at the date of the deed was 13.07 feet wide, 6.89 feet deep, and 12 feet in length with the stream, the bottom 2.76 inches above the plane of the bed rock over which the spent water passed, and the depth being measured from the crest of the dam, which was one foot lower than the dam as it now exists. The court further found that, prior to September 20, 1862, the bulkhead had been used in connection with a sawmill not then in existence, the same having been destroyed by fire; that there was a rack that had existed some ten years, through which the water necessarily passed, made of one-inch by five-inch oak boards set one inch apart edgeways in the water, and sharpened on the edges pointing up stream; that such a rack existed in the bulkhead up to 1873, when plaintiff substituted one made of three-eighths inch iron rods set about two inches apart, which was used up to the time of the trial with knowledge of, and without objection by, defendants, till the commencement of the action; that the economical use of water does not justify taking it through the bulkhead at a greater velocity than 120 feet per minute, the result of taking it at a greater velocity being to so draw down the head as to diminish the power created by a given volume, but that more power from water could be obtained at the expense of volume, by having it pass through the bulkhead at a velocity up to a point stated in the findings of fact as one where the velocity curve crosses the power curve, which point is not determined, and said not to be determinable even approximately, except by experiments which would be attended with an expense of from §300 to $3,000.</p> <p>From such findings the court construed the deed mentioned as the one to which plaintiff’s rights are referable, as conveying the right to so much water as can, beneficially to it, be taken from a bulkhead opening of the width and under the head, with the length, and obstructed by a rack substantially the same as when such deed was made, to wit, 13.07 feet wide, 6.89 feet deep from the crest of the dam, 12 feet long measuring with the stream, obstructed by a rack made o£ one-inch by five-inch oak boards set edgeways with the stream one inch apart, and sharpened at the upper edges, worn as such rack would be after ten years’ use, subject further to some limitations of the use for certain machinery, such limitations, however, not being involved in the controversy on this appeal. Judgment was entered accordingly, and in other respects as directed by the findings, no objection being raised except as presented by exceptions on the part of plaintiff to the finding that the dam is now one foot higher than September 20, 1862, and that the floor of the bulkhead, therefore, should be 6.89 feet from the crest of the dam instead of 7.89 feet from such crest, as at the commencement of this action; and to the finding that the capacity of the bulkhead must'be determined, having regard to the existence of -a rack therein as described in the findings; and exceptions on the part of the defendants to the finding that plaintiff is entitled to take water through the bulkhead at such velocity as will give it the greatest amount of power, regardless of drawing down the head and the economical use of the water. Both sides appealed.</p> <p>as to the proper construction of the term “ full extent and capacity of the bulkhead now there,” as used in the grant, and to the point that the plaintiff is not limited by the grant to any velocity, in 'the drawing of water, short of that which furnishes the maximum power, cited Valley P. <& P. Oo. v. West, 58 Wis. 599; Blancha/rd v. Boermg, 21 id. 477; 8. 0. 23 id. 200; Mack v. Bensley, 63 id. 80; Jackson Milling Go. v. Ohcmdos, '32 id. 437; Bissell v. Grant, 35 Conn. 288; Avon Mfg. Go. v. Andrews, 30 id. 476.</p>

<p>(1, 2, 5) Appeal by corporation: Insolvency and receivership: Undertalc-ing: Immaterial error. (8-8) Railroads: Condemnation of land: Injury to land not talcen: Evidence: Opinions as to value: Net profits: Sales of other lands: Instructions to jury.</p> <p>1. The insolvency of a corporation and the appointment of a receiver for it do not, ipso facto, operate as a dissolution, and therefore afford no ground for the dismissal of an appeal taken in its name.</p> <p>2. An undertaking, given on appeal, to pay the judgment, if affirmed, as well as the costs and damages, although much broader than required, conferred jurisdiction of the appeal, and it was therefore competent for this court to allow such undertaking to be withdrawn and a new one substituted.</p> <p>3. In proceedings to condemn land for a railroad right of way, evidence that a deep cut would cave in and injure adjacent land of the plaintiffs not taken was not inadmissible on the ground that it tended to show negligent construction.</p> <p>4 In such a case a witness who was agent for the sale of real estate about sixty rods distant from the land in question, after having testified that he was acquainted with the market value of lots in the vicinity, that he had made sales, and what the market price of lots was, stated that he had a scale of prices of the same, and gave his opinion that such prices were the market value of the lots, and thereupon the memorandum was received in evidence. Held, that such evidence was not inadmissible on the ground that it was hearsay.</p> <p>•5. Even if such memorandum was inadmissible, its admission was a harmless error, in view of the testimony which the witness had already given without objection.</p> <p>■6. It was not error to permit an old resident and manufacturer who was somewhat familiar with the market price of outlying lots, oí-an architect or engineer who was reasonably familiar with the market price of lots, or a merchant who was treasurer of a local building and loan association and had been alderman, to give his opinion as to the value of the land taken; nor to allow the plaintiff to prove the net profits therefrom, when cultivated as a market garden.</p> <p>7. The selling price of other lands is admissible on the question of damages if the similarity in situation is near enough to afford some material assistance to the jury in determining the value of the land in controversy, the limits within which such evidence may be given being very much in the discretion of the trial court.</p> <p>8. An instruction that there had been sales of other property in the neighborhood, and within a few years of the time of this sale,— some more remote and some closer; that “if there was property sold on the market exactly similar to this in all respects that would be the best possible criterion as to the market value of this property; ” that no claim was made that any property exactly similarly situated was sold at exactly the same time; and that in determining the weight to be given to other sales “you must consider all the elements of similarity in situation and time, and dissimilarity, and determine how far they go to establish what would be a fair market value for this particular property, at the particular time in question,” is held not to have been erroneous.</p>

<p> Negotiable instruments: Accommodation indorser: Parol evidence. </p> <p>One wbo in fact signed or indorsed commercial paper for the accommodation of another may show that fact by parol, in an action brought against him by such other.</p>

B. WyMAN, Judge. Action to recover damages for the alleged breach of certain covenants contained in a deed of conveyance of the southwest quarter of the northwest quarter of section 35, town 48 N., range 4’ W., in Ashland county, made by the-defendant to James S. and F.-L. Sanborn, November 17,1887-The deed contained the ordinary covenants. The complaint charged the breach of each and all of them.

<p>Appeal from a judgment of the circuit court for Ashland county: Johu IL Paeish, Circuit Judge.</p> <p>Action of replevin against W. Armstrong and D. A. Williams for a hack, span of horses, and set of double harness. The complaint is in the usual form. During the progress of the trial a nonsuit was granted as to Williams. Thereafter, it being agreed that the only question of fact in dispute was the value of the property, that was submitted to the jury and resulted in a verdict of $700. Thereafter the court filed findings of fact in substance as follows:</p> <p>June 23,1894, Armstrong gave a chattel mortgage on the property to T. 0. Smith and D. A. Williams, to secure payment of a note of $556.75 to said Smith or order, and a note of $300 to said Williams or order, each bearing interest at eight per cent, per annum, which mortgage was duly filed. Both notes were past due and wholly unpaid before the action was commenced, and the one payable to said Smith, and the interest in the chattel mortgage securing the same, were, for value, before such time, transferred to plaintiffs, who •are still such owners. October 18, 1894, both notes being past due, plaintiffs demanded of Armstrong possession of the mortgaged property, with which he agreed to comply, but later refused, whereupon an action of replevin was brought therefor. Thereafter Armstrong, colluding with Williams to defraud plaintiffs, delivered the property to Williams, who participated in the fraudulent scheme, whereupon plaintiffs discontinued the action against Armstrong, and commenced this one. against both Armstrong and Williams. The property was delivered to plaintiffs pending the termination of the action pursuant to law, and before judgment they sold the same under the mortgage, obtaining therefor $54-0, such sale being in all respects honestly made. Defendant E. V. Williams is the administratrix of the estate of D. A. Williams, having been duly substituted for the latter, who died after the commencement of the action. Such administratrix is owner of the $300 note and of such portion of the proceeds of the chattel property as the amount due on such note bears to the amount due on both notes after deducting the expenses of the foreclosure of the mortgage. Plaintiffs are entitled to the possession of the property; Armstrong unlawfully detained the same; defendant Williams' intestate took the same from Armstrong knowing plaintiffs had taken steps to foreclose the chattel mortgage; the value of the property when taken was $'T00, and plaintiffs’ damage for the unlawful detention is six cents.</p> <p>There was a motion made on the record and minutes of the cohrt for judgment in favor of Williams for the amount due on the $300 note as her interest in the property, and for costs, which was denied and the ruling duly excepted to. The court decided that plaintiffs were entitled to judgment for the possession of the property and for costs against both defendants, and that defendant Williams and plaintiffs were entitled to the proceeds of the property less the expenses of the foreclosure of the mortgage, as indicated in the findings of fact. An order was thereupon entered requiring plaintiffs to pay into court, for the use of Williams, her share of the proceeds of the property within ten days, the same to be retained in court subject to its further order, and that after such payment judgment be entered by the -clerk in accordance with the findings and conclusions of law. Exceptions were duly filed by defendant Williams, on which errors are assigned on this appeal, discussed in the opinion.</p>

<p>Appeal from a judgment of the circuit court for Bayfield county: John 3L Parish, Circuit Judge.</p> <p>This is an action brought to recover damages alleged to have been caused to plaintiff’s team by reason of the defective condition of a certain bridge in the defendant town. The plaintiff had judgment for $150, from -which this appeal is taken.</p>

<p>Municipal corporations: Ashland city charter: Enforcing payment of claims after allowance: Mandamus.</p> <p>The charter of the city of Ashland (ch 37, Laws of 1889) provides that no action shall lie against the city on any claim or demand, but the same shall be presented to the common council for allowance, and its disallowance thereof shall be final and conclusive unless appealed from within a prescribed time; that the clerk shall draw all orders upon the treasury in pursuance of an order or resolution of the council; that no execution shall issue against the city on any judgment, but the amount of the judgment shall be levied and collected as a part of the next year’s taxes, and paid before May 1 following; that no debt shall be contracted or certificate of indebtedness issued unless authorized by vote of a majority of all the members of the council; that the council shall not authorize the issue of orders upon the treasurer unless money to pay the same is in his hands to the credit of the fund upon which it is drawn; that annual estimates of the amounts to be raised by taxation shall be laid before the council, which shall thereupon levy such sums as may be sufficient for the several purposes for which taxes are authorized, not exceeding the limit provided by law; and that the taxes collected shall be applied in the order named. The council allowed certain claims based upon debts which the city had power to contract, but no orders for the payment thereof were issued because of a lack of funds. 3eld, that no action on such claims can be maintained. Although they are not to be regarded as judgments against the city, their allowance was final and conclusive, and mandamus will lie to. enforce their payment without first obtaining judgment thereon.</p>

W. Helms, Judge. The plaintiff was a lot-owner in the city of Ashland, and brought this action for an alleged illegal grading of the street in front of her lot. She filed her claim with the city clerk March 11,1896. On April 21,1896, the common council disallowed the claim; and, on May 29th following, she filed her notice of appeal to the circuit court, and bond, as required by the charter of the city, whereupon the papers-were transmitted to that court.

Pabisu, Circuit Judge. Action for the recovery of a money demand for $941.88, for goods, wares, and merchandise sold and delivered by the firm of Hoxie & Mellor to the defendant between July Í3 and August 30,1890. Said amount became due and payable on or about September 1,1890, and no part thereof had been paid except $242.68, paid on or before the last-named date.

F. Bailey, Judge. Action to charge defendant F. W. McIntyre as trustee of defendant Tilas county, of certain moneys alleged to have been corruptly drawn by him from its treasury, and to compel him to, account therefor and pay the same over to such county for its use, the amount involved being $1,163.65.

E. Bailet, Judge. Action against F. W. Melntyre and P. J. O’Malley, members of the county board of Yilas county from April, 1894, to April, 1895, Melntyre being chairman of the board, to compel them to account and pay over to such county, for its use, moneys alleged to have been, through fraudulent and illegal practices, squandered, misapplied, and converted to their own use.

Y. Bardeen, Circuit Judge. This is an action by the plaintiff, as payee of a life insurance policy upon the life of her husband, who died April 2, 1896, from the effects of a pistol shot. The defense was suicide. The policy contained a provision to the effect that suicide, whether voluntary or involuntary, sane or insane, was not a risk assumed by the defendant.

F. Bailey, Circuit Judge. The defendant was a corporation engaged in the building up of a village and improvement of a tract of land in Clark county, Wisconsin.

F. Bailey, Circuit Judge. TMs action was commenced in the circuit court for Clark county. The plaintiffs recovered in the original action, and Glcurion A. Youmcms was summoned as garnishee of the defendant Manes, and answered as such, denying liability. The plaintiffs took issue on his answer, and a trial was had, which resulted in a finding in favor of the garnishee, and he had judgment discharging him, with costs, from which the plaintiffs appealed.

<p> New trial: Perverse verdict: Terns: Beview on appeal: Opinion of trial court. </p> <p>1. A verdict wholly unsupported by evidence which the jury had a right to believe is perverse, and a new trial may be granted without the imposition of costs as terms.</p> <p>8. Where an opinion filed by the trial court upon granting a motion for a new trial is included in the bill of exceptions, the reasons assigned are before this court for consideration in determining the correctness of the order.</p>

<p>Criminal law and practice: Murder: “Intent to kill:” “Premeditated design:” Instructions to jury: Evidence. •</p> <p>1. An intent to hill a person is not necessarily & premeditated design to effect his death, within the meaning of secs. 4338, 4339, B. S. 1878, and a homicide, even though intentional, may therefore be murder in the second degree, as defined in sec. 4839. [Marshall, J., dissents, but is of the opinion that in this case a premeditated design was not established so conclusively as to render erroneous a verdict of murder in the second degree.]</p> <p>2. Failure to instruct the jury respecting manslaughter in the second degree as defined by sec. 4351, E. S. 1878, was not a material error in the absence of a specific request for instructions on that point, although the facts were applicable to that degree of homicide.</p> <p>3. Where the killing grew out of a quarrel in which the accused was charged by the deceased with improper conduct with his wife, the admission of evidence to show such improper conduct was not error.</p>

<p> Rape: Age of consent: Evidence. </p> <p>1. In a prosecution for carnally knowing and abusing a female under the age of fourteen years, the prosecutrix may testify as to her own age.</p> <p>2. The story of the prosecutrix in such a case being corroborated with more or less force by numerous small circumstances, and there being no doubt that an offense had been committed, and nothing tending to show even an opportunity on the part of any other person to accomplish the act, a conviction will not be disturbed, even though the girl’s story was in some respects remarkable, and was denied by the defendant, and she had told contradictory stories, where she testified, with some corroboration, that they were told by direction of the defendant.</p>

B. Wymaet, Circuit Judge. was tried in the circuit court for Juneau county upon an information charging him with having committed the crime of rape on the person of Annie Stegeman, a female of the age of fifteen years or more, and the jury returned a verdict finding him guilty. The defendant moved to set aside the verdict, and for a new trial;, hut the court denied the motion, and sentenced him to ten years’ imprisonment in the state prison.

EbRoe to review a judgment of the circuit court for Dunn county: W. E. Bailey, Judge. Error to review a judgment rendered on a conviction for the crime of murder in the first degree.

F. Bailey, Circuit Judge. The following statement of the facts was prepared by Mr. Justice NewMAN in connection with the opinion filed by him on September 28, 1898: This is an action in equity to restrain the defendants from diverting the course of a ditch or alleged watercourse from the plaintiff’s lands, and to enforce the performance by the defendants of an alleged contract to maintain the ditch in its present location on plaintiff’s land, for the benefit of plaintiff’s…

Bennett, Circuit Judge. They argued, among other things, that it was the intention of the legislature, when it enacted sec. 6, subch. YII, of the charter, to make the procedure therein laid down a special procedure for the city of Janesville, and exclusive of the general statute. It is a later act and a special act, and the intent to take the city out from under the provisions of sec. 927, R. S. 1878, is clearly expressed.

Y. Bandeen, Circuit Judge. argued, among other things, that the provision of the policy in respect to notice was valid and constituted a condition precedent, without performance of which no recovery can be had, and notice of the accident given nine months after knowledge of the accident and injury was not a compliance with the policy. Oonmell v. MiT/wa/ukee M. F. Ins. Oo. 18 Wis. 387; Blakeley v. Phoenix Ins. Oo. 20 id. 205; Kmtzler v. Am. Mut. Aee.

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: R. N. Austen, Judge.</p>

<p>Appeal from a judgment of tbe circuit court for Brown county: S. D. HastiNGS, Je., Circuit Judge.</p> <p>They argued, among other things, that tbe requirements of sec. 72, cb. 312, Laws of 1893, are merely directory and cannot affect tbe validity of tbe ordinance. Stevenson v. Bay Oity, 28 Mich. 44; State ex rel. DaT/rymyle v. Milwcmltee Oo. 58 Wis. 4; Comm. v. Davis, 140 Mass. 485; JElmenclorf v. New Yorlc, 25 Wend. 693. The right was con-ferrecl on the city to adopt it; the essential element was the adoption of the ordinance, and not the giving of the notice. Striker v. Kelly, 7 Hill, 9. Having the right and power, though it was irregularly exercised, the city had power to ratify the adoption. Koeh v. Milwcmltee, 89 "Wis. 220; Mills v. Gleason, 11 id. 470.</p> <p>They contended, inter alia, that the allegations in the answer are too vague and indefinite to state a defense. In order to set up a defense of fraud avoiding a contract, facts must be alleged not only of the kind of fraud used, but showing specifically the circumstances and particulars of the fraud, and how it affected the contract and the defendant’s interest. Riley v. Riley, 34 Wis. 372; Kewcmnee Go. v. Declter, 30 id. 634; Lcmdcmer v. Vietor, 69 id. 434, 439; Kerr, Fraud & M. (Bump’s ed.), 365; Bell v. Lamprey, 52 N. H. 41-46, and cases cited; G%tm%-ins v. Lawrence Go. 1 S. Dak. 158; Bliss, Code PI. § 211; 8 Am. & Eng. Ency. of Law, 653; RhilUps v. Bchooley, 27 N. J. Eq. 410; Oosgrove v. Fish, 90 Cal. 75; Mills v. GoTlins, 67 Iowa, 164; Salsbury v. Falla, 28 Ill. App. 297; Jones v. Albee, 70 Ill. 34; Knapp v. Brooldyn, 97 N. Y. 520. An allegation of fraud upon information and belief cannot be sustained unless the facts upon which the belief is founded are stated in the pleading, so that the court may see whether the conclusion is supported by the facts. 9 Ency. of PI. & Pr. 694; Memphis & G. R. Go. v. Keighbors, 51 Miss. 412, 422; Seid-mcm v. Geib, 16 Daly, 434; Kay v. 'Whittalter, 44 N. Y. 565, 570, 571. This objection goes to the sufficiency of the facts stated to constitute a defense, and not simply to the question of indefiniteness. Riley v. Riley, 34 Wis. 372; Kewau-nee Go. v. Reciter, 30 id. 634. The admitted facts show that in no way was any corruption possible. The charter imposed upon the council the mere duty of ascertaining which one of the bids received was the lowest, and awarding the •contract accordingly. It is undisputed that the bid of the plaintiff’s assignor was the lowest; that his bid was reasonable; that he was responsible; and that in compliance with the positive direction of the charter the contract was awarded to him. State exrel. 3fanitowocv. Gov/nty Ol&rk, 59 Wis. 15; Gastlemcm v. Griffin, 13 id. 538; Wi/nslow v. Growell, 32 id. >656; McDonald v. Daniels, 58 id. 426-429; American B. & L. Asso. v. Bear, 48 Neb. 455; Tiedeman, Sales, § 162, and cases cited.</p>

<p> Equity: Lien on land: Unconscionable conduct: Denial of relief. </p> <p>In an action to enforce a lien on land for unpaid purchase money, it appeared that plaintiffs had conveyed the land to their son in consideration of natural love and affection and certain payments to be made annually during their lives; that the son occupied it with his wife as a homestead; that thereafter the plaintiffs, conspiring with their son to obtain a reconveyance, induced him to abandon his wife, who thereupon obtained a divorce and was assigned the land and the personal property thereon as her share of her husband’s property; that he then, in order to defeat her rights, fraudulently transferred said personal property to the plaintiffs to an amount exceeding the lien claimed by them on the land, and they assisted in the scheme by taking the property and using it for their joint benefit. Held, that plaintiffs had no standing in equity to enforce their alleged lien.</p>

C. Ludwig, Judge. Action to recover for personal injuries alleged to bave been caused by defendant’s actionable negligence.

H. JohusoN, Circuit Judge. They contended, inter aKa, tbat tbe court was without jurisdiction in tbe premises. If the assignee desires to recover property held or claimed by others he must proceed as every one else is required to do, namely, by action where a trial in the usual method may be had. Frost v. Citizens’ Nat. Baltic, 68 Wis. 234, 240; Mat-timos v. Ott, 87 id. 399, and cases cited.

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>This was an action by the lessee of real estate against his lessor for damages for alleged breach of the covenants of a lease. It appears that about April 1, 1895, the defendant leased to the plaintiff for one year a building in the city of Milwaukee, known as the “ People’s Theater,” to he used as a theater and saloon, at a rental of $200 per month. The plaintiff had been in possession of the theater for several years previously, and this last lease was an oral lease for a year only. The rent for the month of April was paid, and then the plaintiff continued in possession, and operated his theater and saloon in connection, until April 28,1895, when the season was said to be over, and the theater was closed. The plaintiff claims that, as part of the lease, the defendant agreed to make all necessary repairs in the building during the year; but the defendant denies this, and claims that it only agreed to make certain specified repairs, which were then pointed out by the plaintiff, and which were made. In June, 1895, a new building was about to be erected immediately joining the theater, and the eity inspector of buildings thereupon inspected the building in question and condemned it as dangerous, and ordered it to be torn down. On the 26th of June, the plaintiff, by letter, demanded that the building be put in repair. Two days later, tlie defendant replied by letter denjdng that it bad made any agreement to repair. On the 11th of July, the plaintiff, by letter, demanded that repairs be made forthwith, and sent the keys of the building to the defendant for the purpose of permitting it to make the necessary repairs. The defendant made no repairs, but on the 13th of August returned the keys, with a short letter saying that it had complied with the terms of the lease. On the 14th of August, the plaintiff replied to this letter, asking in what particulars the lease had been complied with, and limited the time for a reply to August 20th, on the ground that after that time he would have no use for the premises, as he would be unable to carry out his contracts with theatrical companies. The defendant made no reply to this letter, and made no repairs, but, in October following, tore down the building.</p> <p>Upon the trial, the plaintiff was allowed to prove as a basis for the estimation of damages what his profits had been in the use of the building as a theater and saloon during the several years immediately preceding the year in question, and it appeared that he had operated the theater and saloon upon Sunday as well as upon week days, whereupon, upon the cross-examination, the defendant’s attorney endeavored to ascertain from the plaintiff what part of the estimated profits were derived from the Sunday business. After several questions upon this subject, the court made the following ruling, to which the defendant took exception; “I hold the profits which he makes on Sundays are to be included the same as other days, and that the profits which this man made on Sunday in his business are not to be distinguished from the profits he made generally. I will give you the benefit of the exception, and stop the investigation right here as far as the Sunday business is concerned, without holding whether his business is legal or illegal on Sundays or other days. There is a difference between a contract made on Sun-clay and executed on Sunday. A court held a contract made on Sunday was illegal, but they never held a contract executed on Sunday illegal. The result of that would be in an accounting between partners, or in such business, it would be necessary to eliminate from the business the business clone on Sunday, if any of it was done on Sunday. If he is entitled to recover profits, it is immaterial whether they were made on Sunday or any other day, in my judgment.” Thereupon no further questions were asked upon this subject.</p> <p>A special verdict was demanded, and the defendant, among other questions, requested that the court submit the following questions as a part of the special verdict: “ (7) Did the plaintiff, during the years 1891 and 1895, run his theater and the premises in question on Sundays ? (8) If you answer the foregoing interrogatory in the affirmative, was not a large portion of his profits derived from keeping open his theater and premises in question on Sundays ? (9) Was a considerable portion of the profits of the plaintiff derived from the sale of liquors in his said theater on Sundays ? (10) Is a considerable portion of the anticipated profits claimed by the plaintiff founded on the expected keeping open of said theater on Sundays, and the sale of liquors therein on such days ? (17) How much of the anticipated profits claimed by plaintiff as damages were to be derived from the keeping open of the theater on Sundays, and the sale of liquors therein on said days ? ” The court refused to submit any of these questions, and exceptions were duly taken to such rulings.</p> <p>The following special verdict was rendered: “ (1) Did the defendant corporation lease the premises. in question to the plaintiff for the term of one year from the first of April, 1895, upon the terms stated in the complaint, except as to repairs ? Answered by direction of the court: It did. (2) Did the plaintiff remain in possession of said premises during substantially the whole month of April, .1895 ? Answered by direction of the court: He did. (3) Did the plaintiff pay to the defendant corporation the sum of two hundred dollars on account of the rent reserved in said lease ? Answered by direction of the court: He did. (4) Did the defendant corporation, prior to the making of said lease, or at the time of the making thereof, undertake to make some repairs upon said building ? Answered by direction of the court: It did. (5) Were such repairs pointed out by the plaintiff, and agreed to by the defendant corporation; or were the repairs which the defendant corporation undertook to make all necessary repairs for the use of the premises in question, for the purpose of a theater and barroom ? Necessary repairs. (I) If, in answer to the fifth interrogatory, you say that the repairs undertaken to be made by the defendant corporation were such general repairs as were necessary for the use of the premises, for the purposes of a theater and barroom, did the defendant corporation subsequently refuse to make such repairs? It did. (8) Was the building in question owned by the defendant corporation, standing upon land owned by the Pabst Brewing Company, and leased by the defendant corporation ? Answer by direction of the court: It was. (9) Did the building inspector of the city of Milwaukee, on or about the 6th day of June, 1895, notify the defendant corporation that said building was dangerous, and that the same was condemned? Answer by direction of the court: He did. (10) How long did said building remain standing and without further repair after said notice was given ? Answer by direction of the court: About four months. (11) At the time of the taking of the lease aforesaid, did the defendant corporation know, or could it in the exercise of ordinary care have known, the then condition of said building ? They could. (12) Did th e plaintiff at the time of said leasing know, or could he in the exercise of ordinary care have known, the then condition of said building? No. (13) Was the said building, at the time of the making of said lease, in an unsafe condition, so that it was dangerous to run a theater and a barroom in said building? Uo. (14) Could said building have been repaired so as to make it safe to run a theater and barroom therein during the term of said lease, to wit, one year from the first day of April, 1895? Yes. (15) If you answer the last interrogatory in the affirmative, what would be the expense of making such repairs ? Cannot tell. (16) Did the defendant corporation demolish the building, as charged in the complaint ? Answer by direction of the court: It did. (17) What profit, if any, could the plaintiff have made by the use of said building for a theater and barroom during the term of eleven months, commencing May 1, 1895 ? $8,250.”</p> <p>Judgment for the plaintiff thereon was rendered, and the defendant appeals.</p> <p>They contended, irnder alia, that there are so many elements of uncertainty that enter into the production of profits in plaintiff’s business that they are too conjectural to form a legitimate basis for a recovery of damages. Shadbdlt <& Boyd I. Go. v. Tojyliff, 85 Wis. 513, and cases cited on p. 525; Pewauhee M. Go. v. Howitt, 86 id. 270,277, and cases cited; Todd v. Keene, 167 Mass. 157; Moble v. Hand, 163 id. 289; Brown v. Smith, 12 Cush. 366; Bernstein v.Meech, 130 U. Y. 354; Moss v. Tomrp-hins, 69 Hun, 288; S. G. 144 U. Y. 659.</p> <p>To the point that no question of illegality or of Sunday violation could be raised by the appellant because not affirmatively pleaded, they cited Musser v. Adler, 86 Mo. 445-449; Moore v. Bingo, 82 id. 468; Suit v. Wood-hall, 116 Mass. 547; St. Bouis A. & M. Asso. v. Delano, 108 Mo. 217-220, and cases cited; Denton v. Bogan, 3 Met. (Ky.), 434; Bradford v. Tinhham, 6 Gray, 494; Durham Fertilizer Go. v. Pagett, 39 S. C. 69.</p>

Appeals from a judgment of the superior court of Milwaukee county: Geo. E. Sutheblakd, Judge. This was an action for the foreclosure of certain mortgages, and the complaint alleged that the defendant Richter and wife, June 17, 1889, executed a mortgage of lots 6 and 7 in block 37 in the city of Milwaukee, to secure the note of said Richter for $6,000, of which $5,000 and interest remained due, which note and mortgage were held by the plaintiffs.

E. Austin, Judge. Action to recover damages for the death of plaintiff’s intestate. The court nonsuited the plaintiff, and from the judgment thereupon rendered he appealed.

E. Sutheelaitd, Judge. Plaintiffs rented offices of defendant, in tfie Goldsmith Building, in Milwaukee, for a term of five years from May 1, 1893. The offices fronted on Wisconsin street. The rent was fixed at $1,011.25 per annum, being at the rate of $1.25 per square foot. The lease was under seal.

H. Jootsoh, Circuit Judge. They contended, inter alia, that the question involved in this case is the extent of the principal’s liability for the unauthorized torts of his agent. According to the allegations in the complaint the principal is undisclosed, and the plaintiff is acting in ignorance of the agency. Hence no question as to whether the acts complained of were within the apj)arent scope of the .agent’s authority can arise.

H. Jonnsorr, Circuit Judge. This is an action in equity to foreclose a lien of the plaintiff upon certain stocks which had been pledged to the plaintiff by the defendants Finale and Meyer, and by the defendant Meyer alone. The facts appearing upon the trial were, in substance, as follows: Prior to Jatíuary 1,1896, Meyer and Finale were partners, and, as such, borrowed money of the plaintiff bank to the amount of $17,000, for which they gave their firm notes.

C. Ludwig, Judge. The proceeding sought to he reviewed by the writ of error in this case was by alternative mandamus against the Board of Education of the City of South Mil/wcuulcee and others, sued… Held: at which the period of the ensuing school year was fixed at nine months. July 7, 1897, the high school board met and ratified the acts of its predecessor in appointing teachers.

Ludwig, Judge. On the Vth day of February, 1898, defendant corporation, the South Milwaukee Lake View Oom/pomy, made an assignment for the benefit of its creditors, the papers being filed as required by law in the office of the clerk of the circuit court for Milwaukee county. Subsequent to such assignment, on application of plaintiffs, in the action in the superior court of Milwaukee county, after judgment, a receiver for the corporation was duly appointed.

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: Geo. E. SutherlaND, Judge.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>The complaint in this action charged that the defendant is a New Jersey corporation, organized in June, 1891, and i& a consolidation of a number of corporations previously existing, among which was the H. W. Johns Manufacturing Company of New Tork, and that the defendant company assumed all the debts, obligations, and contracts of the previous corporations which were consolidated to form the defendant; that in the year 1889 the plaintiff was erecting a business block in Milwaukee, and invited bids for roofing the same,, and received a written proposal from one Phillip Gross, of Milwaukee, then the agent of the H. ~W. Johns Manufacturing Company of New York, who proposed, m behalf of said company, to construct the roof known as the “H. W. Johns asbestos roof,” manufactured by said company under a patent, for five dollars a square; that the plaintiff at first rejected said bid, but that the II. ~W. Johns Manufacturing Company of New York, by its Chicago agents and the said Gross, made repeated representations to the plaintiff as to the good qualities of the H. W. Johns roof (which representations are fully set forth in the complaint, but are not necessary to be repeated here), and that the plaintiff finally, by means of such representations and relying thereon, changed his mind and accepted said bid for the asbestos roof of said company, the price being reduced to $4.75 per square. The complaint further alleges that the roofing was done in the summer and fall of 1890, and was entirely paid for in November, 1891, but that the roof proved to be worthless, and entirely failed in the winter of 1894, and that the representations, assurances, and warranties of said H. W. Johns Manufacturing Company of New York, and its then agents, as to the character, quality, and durability of the material ■employed, utterly failed, so that an entirely new roof had to be put upon the building, and that by reason of the premises the plaintiff was damaged to the amount of $2,000, for which he prayed judgment.</p> <p>The answer denied that the H. W. Johns Manufacturing Company of New York ever made the contract set forth in the complaint, and denied that Phillip Gross was at any time the agent of said company, and alleged that the roofing contract set forth in the complaint was entered into between the plaintiff and Gross upon his own account.</p> <p>Upon the trial of the action it appeared that Phillip Gross in September, 1889, was engaged in business in Milwaukee, ■and had the exclusive right to sell and use the asbestos roofing manufactured by the H. W. Johns Manufacturing Company of New York, but was not the agent of said company for the purpose of making contracts to put on roofing, and that on the 6th of September he made a written bid to the plaintiff on his own account to furnish and lay complete an IT. W. Johns asbestos roof for five dollars per square upon the plaintiff’s building. It further appears that in the latter part of April, 1890, the II. W. Johns Manufacturing Company of New York transferred the exclusive right to use and sell tlieir roofing in Milwaukee to Messrs. A. Monsted & Co., and that the further negotiations had with regard to the roofing were had with Monsted & Co., and resulted in the making of the following written contract on the 5th of August, 1890:</p> <p>“Messrs. A. Monsted & Co. agree to place the asbestos roof on Metropolitan Block, furnishing all necessary material, in first-class manner, at $4.75 per square. Work must be commenced within twenty-four hours after roof is in readiness, and finished without any unreasonable delay.</p> <p>“F. W. TON CoTZnAuSEN.</p> <p>“A. Monsted & Co.”</p> <p>Prior to the making of this contract, one Near, a traveling salesman of the II. W. Johns Manufacturing Company of New York, had called on the plaintiff with Monsted & Co., and left with the plaintiff circulars commending the H. W. Johns roofing, and also made oral representations as to its character; but it did not appear that either Near or Monsted claimed to act on behalf of the company in making contracts, nor did it appear that either of them was authorized to make any such contracts on behalf of the company.</p> <p>- The evidence further tended to show that the roof put upon the building by Monsted & Co. proved to be defective, and a special verdict was rendered in the action as follows:</p> <p>“(1) Was the defendant company organized on or about the 25th of June, 1891, and did it begin business on or about the 1st day of July, 1891, and is it a consolidation of the following previously existing corporations, namely, the II. W. Johns Manufacturing Company of New York, organized in 1887, the Asbestos Packing Company of Boston, the Calmer-Spence Company of New York, C. W. Trainer & Co. of Boston, and the Shields & Brown Company of Chicago? Answered, ‘ Yes,’ by consent of counsel.</p> <p>“ (2) Bid the defendant company then assume all the debts, obligations, and contracts, of every kind and nature, of each of the pre-existing companies aforesaid, including the obligation, if any, which is the subject matter of this action ? Answered. by jury, 'Yes.’</p> <p>“ (3) Did the plaintiff and the firm known as ‘ A. Monsted & Oo.,’ on or about the 5th day of August, 1890, make and sign a writing offered in evidence in this action, and marked ‘Exhibit No. 1,’ whereby the said A. Monsted & Oo. undertook to cover the plaintiff’s building with a so-called asbestos roof, and was said writing signed by said A. Monsted & Oo. and by the plaintiff ? Answered, ‘Yes,’ by consent of counsel.</p> <p>“ (4) Prior to the making of said Avriting, did the defendant corporation, or its predecessor, the H. W. Johns Manufacturing Company of New York, or either of them, make to the plaintiff the representations set forth in that behalf in the plaintiff’s complaint, and contained in Exhibit No. 3, in evidence in this action ? To this question the defendant objected, for the reason that the question is not based upon the evidence and there is nothing in the case to support an affirmative answer to said question; which objection Avas overruled by the court, and the defendant duly excepted. Answered by jury, ‘ Yes.’</p> <p>“ (5) Did the plaintiff believe said representations to be true? Answered by jury, ‘Yes.’</p> <p>“ (6) Was the plaintiff induced by said representations to make and sign the writing or memorandum aforesaid with A. Monsted & Oo. ? Answered by jury, ‘Yes.’</p> <p>“ (7) At the time of the making of said writing by and between the plaintiff and the said A. Monsted & Oo., had said A. Monsted & Oo. the exclusive right to purchase and sell and use in the city of Milwaukee the roofing material made and sold by the defendant corporation, or its predecessor, the H. W. Johns Manufacturing Company of New York, the asbestos roofing which was intended to be described in said contract or memorandum, and which was in fact used in the execution of said contract or memorandum ? Answered ‘ Yes,’ by consent of counsel.</p> <p>“ (8) Did said A. Monsted & Co. proceed under said contract or memorandum to roof the plaintiff’s building aforesaid with the material so intended to be used for that purpose, according to the true intent and meaning of said contract or memorandum, in good faith and in a good and workmanlike manner? Answered by jury, ‘Yes.’</p> <p>“ (9) Did said roof turn out to be utterly useless as a roof, solely through the defects and worthlessness of said material as a roofing material ? Answered by jury, ‘ Yes.’</p> <p>“ (10) If you answer the last interrogatory in the affirmative, was either, the plaintiff or the said A. Monsted & Co. guilty of any fault or misconduct, or want of care or skill, which was the proximate cause of the failure of said roof ? Answered by jury, ‘No.’</p> <p>“ (11) Were the representations contained in said Exhibit No. 3 substantially false? Answered by jury, ‘Yes; in this action.’</p> <p>“ (12) Do you find for the plaintiff or for the defendant ? Answered by jury, ‘ Plaintiff.’</p> <p>“ (13) If the court should be of the opinion that the plaintiff is entitled to judgment, in what sum do you assess the plaintiff’s damages suffered by reason of said representations so made by the defendant corporation, or its predecessor, the H. W. Johns Manufacturing Company of New York, to the plaintiff ? To this question the defendant objected, for the reason that the question assumes that the plaintiff suffered damages by reason of the representations made by defendant to plaintiff, and suggests to the jury that the defendant has made false representations to the plaintiff, and that the plaintiff ought to recover; which objection was overruled by the court, and the defendant duly excepted. Answered by jury, ‘ $1,211.82.’ ”</p> <p>Upon this verdict judgment was rendered for the plaintiff, and the defendant appeals.</p> <p>They argued, among other things, that the action, could not be maintained because it was an action on contract for breach of warranty, when there was no contractual relation between the parties. 28 Am. & Eng, Ency. of Law, 740; Rose v. Hurley, 39 Ind. 81; Peélc v. Gurney, 6 Eng. & Ir. App. Oas. 377; Longmeid, v. Holliday, 6 Exch. 761; JBcmies v. Peliglise, 78 Wis. 628; Wi/nterboti/um v. Wright, 10 Mees. & W. 109; Langridge v. Levy, 2 id. 519; Levy v. Lanigridge, 4 id. 337; Blalcemore v. B. & E. R. Co. 92 Eng. C. L. 1035; Burton v. La/rlcim,, 36 Kan. 246; Austin v. Seligmam., 18 Fed. Rep. 519.</p>

<p> Voluntary assignment: Execution: Liability of assignee for property sold under order of court: Compensation. </p> <p>By order of the court under whose process a sheriff held property of an insolvent debtor, the execution levy was dissolved and the property turned over to the debtor’s assignee for the benefit of creditors. Subsequently, under like authority, the assignee sold the property and held the proceeds in lieu thereof. Upon appeal, the first mentioned order was reversed, and the cause remanded with direction to cause the property or its proceeds to be restored to the sheriff, to be applied on the execution. Held that, having acted under the orders of a court having full jurisdiction, the assignee was not a wrongdoer, and was answerable only for the proper net proceeds of the sale of the property, and was entitled to reasonable compensation for his services and expenses out of the fund, to be fixed and allowed by the court.</p>

H. JonNSON, Circuit Judge. At the time ch. 384, Laws of 1897, went into effect, defendant Union Oil They contended, inter aUa, that many changes made in existing laws ‘which, while they affect the remedy yet leave a valid and subsisting remedy, have been held valid, even though in particular instances they might work hardship, or even loss, to the parties holding the contract; as for instance, statutes relating to limitations (Terry v. Anderson, 95 U. S. 628), or statutes…

Ií. JohNsoN, Circuit Judge. On January 4, 1892, plaintiff made a contract witb defendants’ decedent, Conrad Starke, by which the plaintiff chartered Starke’s steam barge for the entire season of 1892 to carry lumber from Ashland to Chicago and other lake ports at the “going rate” for freights; said barge to be ready to sail at the opening of navigation.

<p> Negligence causing death: Operation of passenger elevator: Evidence.■, </p> <p>1. It is the duty of the proprietor of an office building to see that the passenger elevators operated by him therein are properly and safely constructed, and that they are operated with the highest degree-of skill commensurate with or proportionate to the possibility of injury to passengers using them.</p> <p>2. In an action to recover for the death of a person who fell into the shaft while attempting to enter a passenger elevator in defendant’s-office building, the evidence — showing, among other things, that the man in charge, after stopping the car and opening the door, started to close the door again and to raise the car so that its floor would be level with that of the building, telling the deceased, who was attempting to enter the car, to “wait a minute; ” and that deceased stumbled and fell against him, causing him to throw the lever wide open, so that the car shot upward, while deceased fell into the shaft,— is held sufficient to warrant the submission of the case to the jury on the question of negligence.</p> <p>3. The question in such case being whether or not the elevator was negligently operated at the time of the accident, evidence to show that the operator was inexperienced and incompetent tended to raise a collateral and immaterial issue, and its admission was error prejudicial to defendant.</p>

<p> Municipal corporations: Constitutional limit of indebtedness: Offsets: Diversion of specific fund. </p> <p>1. The amount of money in a city treasury to the credit of the school fund, which is pledged to the support of the public schools and cannot lawfully be diverted to any other purpose, cannot be deducted from the amount of the indebtedness of the city, in determining whether the constitutional limit of indebtedness has been reached.</p> <p>2. In determining that question, the amount to the credit of a “ bond, interest, and sinking fund,” which under the charter is set apart for the payment of principal and interest on bonds and scrip of the city and cannot lawfully be used for any other purpose, is a proper, credit to be considered in reduction of the indebtedness.</p> <p>3. Estimated revenues to be derived from liquor licenses, from a street railway tax or license based upon earnings, and from other like sources, being uncertain in amount, not in process of collection, and not dependent upon any act of the city, cannot be considered as offsets against the city’s indebtedness; especially where the moneys reasonably to be expected from such sources have been anticipated in the annual budget.</p> <p>4 Where, for the purpose of paying overdrafts on other funds, money is drawn from a fund over which the council has no control except to pay regular demands upon it, the amount of the overdrafts should be considered a debt, in determining the amount of the city’s indebtedness.</p>

<p>Elections: Mandamus to control form of ballot: Jurisdiction on appeal after election: Judgment: Double printing of names: Construction of statutes: Constitutional law.</p> <p>1. In a proceeding by mandamus to control tbe form of the official ballot to be used at an election, the fact that the election has taken place before a decision in the appellate court does not deprive that court of jurisdiction to determine all the questions presented; and although, in such a case, the writ will be denied, yet if the lower court should have granted the relief sought, the relator will be entitled to a reversal, with costs, of the order denying such relief, and to recover his costs in the lower court, with nominal damages.</p> <p>2. Mandamus to compel a city clerk to place twice on the official ballot the name of a candidate who has been nominated by two parties, will not be granted merely because such double printing is not prohibited by statute.</p> <p>8. Ch. 288, Laws of 1893, after providing that the several regular party-tickets shall each be printed on the official ballot in one column under the appropriate party designation, further provided that, “ when any person is nominated for the same office by more than one party or convention, his name shall be placed in each column in which the nominations of such parties or conventions are given.”' This latter provision was changed by sec. 2, ch. 348, Laws of 1897, to. the following: “When any person is nominated for the same office by more than one party or convention his name shall be placed upon the ticket under the designation of the party which first nominated him; or if he was nominated by more than one party or convention at the same time, he shall, within the time fixed by law for filing certificates of nomination, file with the officer with whom his certificate of nomination is required to be filed a written election indicating the party designation under which he desires his name to be printed on the ballots, and it shall be so printed. If he shall refuse or neglect to file such an election, the officer with whom the certificate of nomination is required to be filed shall place his name under the designation of either of the parties by which he was nominated, but under no other designation whatever.” Held, that all double printing of names is forbidden, even in case all the candidates of one party are also the nominees of another.</p> <p>4, A statute providing that regular party tickets shall each be printed on the official ballot in one column under the appropriate party designation is not unconstitutional because it further provides, in effect, that the name of a candidate shall not appear under more than one party designation, and that no party shall be entitled to a place on the ballot unless it polled a certain percentage of the total vote at the preceding general election, where, by other provisions, the right of any voter to vote for any person for any office is preserved. Winslow, J., dissents, being of the opinion that it is an unwarrantable interference with the freedom of election to , debar one party from indorsing the candidates of another party except on pain of surrendering its existence as a party and its right of representation upon the official ballot in the future.</p>

<p>Certiorari to review proceedings of the circuit court for "Winnebago county: Geo. W. Burnell, Circuit Judge. The respondent moved to quash the writ.</p>

E. Süthebland, Judge. This is an action in the nature of a creditors’ hill to set aside certain conveyances of real estate made by the defendant Alvah Remington to his wife, as frauds upon creditors. The facts were that on the 19th of October, 1892, Afoiah, with others, guaranteed the payment of a note and mortgage given by a real-estate company upon certain lands in the town of Lake for the sum of $9,000, and the plaintiff thereupon purchased the same.

Eeeoe to review a judgment of the superior court of Milwaukee county: Geo. E. SutheelaND, Judge.

C. Ludwig, Judge. The action was brought to foreclose a mortgage, in which .such proceedings were duly had that judgment of foreclosure and sale was entered March 8, 1896, and judgment for deficiency July 24, 1891. The defendant corporation appealed to the supreme court from both judgments November 24, 1891, -without obtaining any stay of proceedings.

Appeals from orders 'of tbe superior court of Milwaukee county: Geo. E. SutheblaNd, Judge. This action was brought by the plaintiff, as a stockholder and creditor of the defendant, for the purpose of winding up its affairs, and such proceedings were had that on March 11, 1897, Martin TF. Sherman was appointed receiver.

E. SutheklAND, Judge. Action for contribution between guarantors. Plaintiff and defendant jointly guaranteed tbe payment of a promissory note, wbieb, in process of time, plaintiff was compelled to pay in full, whereupon be brought this action against bis co-guarantor to recover one half of tbe amount so paid. Tbe defendant answered, denying that plaintiff paid tbe note as-claimed by him, and alleging that he paid it by discharging his own indebtedness to the corporation.

H. JohNSON, Circuit Judge. This is an equitable action to have a trust declared in certain standing timber, the legal title to which had… Held: further, that the contract relied on by the plaintiffs “is word for word just such a partnership as the supreme court of this state has declared to be void because not in writing ” (referring to Bwd v. Morrison, 12 Wis. 138); and held that the contract relied on by the plaintiffs because not in writing was in all respects a nullity;…

E. Sutherland, Judge. An action was brought on a written agreement which is in the following words: “Whereas, the Wilkin Manufacturing Company, of Milwaukee, is indebted to the Wisconsin Marine c& Fire Insurance Company Bank, of Milwaukee, Wisconsin, in the sum of about $9,000 (nine thousand dollars); “ And whereas, the said company may hereafter become indebted to said bank for additional amounts; “Now, therefore, in consideration of the premises, and of one dollar to each…

H. JohNSON, Circuit Judge. This is an action at law, brought by plaintiff on behalf of himself and others, to recover the sum of $4,900, claimed… Held: of which the defendant had due notice, and such assessments were made on each member, from time to time, as were deemed necessary to meet the same; that all of the parties interested, except the defendant and a few others, have paid the calls, and that a sum exceeding $125,000 had been paid in and used for the benefit of all…

H. JohNsoN, Circuit Judge. Tbe facts are stated in tbe opinion. They argued, among other things, that tbe legacy in question was given to and vested in tbe executor, as trustee, and did not vest in interest in Conde upon tbe death of the testator.

H. JohNsok, Circuit Judge. This is a garnishment proceeding. Tbe plaintiff sued N. H. Anderson, alias Hans Anderson, on an open account, and at tbe time of tbe issuance of tbe summons garnished laev. Laev answered, denying liability either to N. II. Anderson or to Hans Anderson, but alleged that be bad in his possession fifty shares of stock in tbe Laev Lumber Company, a corporation, which belonged to Hans Anderson.

E. Sutherland, Judge. This is an appeal from an order made June 25, 1898, in relation to tbe terms of granting tbe defendant leave to file an answer in and defend tbe case of Center al Naüonal Bernia <o. Brand, impleaded, etc. Was tbe order appealable? Tbe action was to recover upon a note made by Brand, tbe appellant, to tbe plaintiff, for $1,200, dated August 11,1894, indorsed by tbe defendant Oairncross.

II. JohNSON, Circuit Judge. Appeal from a judgment of tbe circuit court for Milwaukee county, construing the will of Hannah Scholl, who died testate, leaving, surviving her, two brothers and three sisters, besides children and grandchildren of seven deceased brothers and sisters.

H. JOHNSON, Circuit Judge. Appellant presented a ciaim to the county court of Milwaukee county against tbe estate of Ignatz Kohn, which was disallowed. An appeal was taken to tbe circuit court. Tbe matter was beard before a referee, who found in favor of the appellant on a portion of her claim.

E. SutheelAND, Judge. To the point that the complaint was sufficient, they cited Edlemcm v. Kidd, 65 Wis. 22; Bliss, Code FI. §§ 9, 152, 156; Fa/rron v. /Sherwood, 17 N. Y. 230; Humst v. Litchfield, 39 id. 377; Mosley v. Blade, 28 id. 438; Mead v. Degol/yer, 16 Wend. 638; Ciarle v. FaAr-child, 22 id. 583; 1 Chitty, PL 352, 353; 2 Ency. of Forms, 298; Pa/rleer v. Macomber, Í6 L. E. A. 861; Allen v. Patterson, 7 N. Y. 476; Keteltas v. Myers, 19 id. 231; Bue v. Ketchum, 51 Wis.…

H. JOHNSON, Circuit Judge. Certiorari. The relators, by their relation filed July 8, 1891, alleged that they owned certain lots in the town site of South Milwaukee, abutting upon the highway called Chicago road, and that on the 11th of February, 1893, Fred Heidélburg and five other persons, whose names are given, pretending to act as village trustees of the village under the name of South Milwaukee, made an order vacating a part of said Chicago road pursuant to certain…

<p>Appeal from a judgment of the superior court of Milwaukee county: Geo. E. SutheelaNd, Judge.</p>

IT. JohNsoh, Circuit Judge. Action to recover $1,400 and interest claimed to be due plaintiff from defendant on a sale of land. It was admitted that plaintiff sold the lands for $1,475, $75 of which was paid down. Plaintiff claimed the balance was to be paid in one year without interest, while defendant claimed that it was paid when the deed was delivered, by $1,400 par value in the stock of the Caledonia Land Company.