Volume 101 — Wisconsin Reports

<p> Mutual insurance company: Voluntary assignment: Rights of members in “reserve fund:” Claims for losses occurring after assignment: Dissolution. </p> <p>1. A mutual life insurance company had no capital stock and no accumulation of funds for the payment of losses except such as it secured by assessments after the happening of losses. Its charter provided, however, for a policy fund, to be used for the payment of death losses, and for a reserve fund, which was to be invested but was not set apart for any specific purpose and remained within the control of the directors, who were authorized to make transfers from it to the policy fund. The company made a voluntary assignment. Held, that the members had no vested rights capable of ascertainment in the reserve fund, but that it, with all the other property of the company, was liable to the payment of the death claims existing when the assignment was made.</p> <p>2. A claim for a death loss occurring after the assignment cannot be enforced in the assignment proceedings.</p> <p>3. The legal existence of the corporation was not terminated by the assignment.</p> <p>Authorities as to the distribution of the assets of insolvent insurance companies may be found in an extensive note to Boston & A. R. Co. v. Mercantile T. & B. Co. (82 Md. 585), in 38 L. R. A. 97. — Rep.</p>

W. Bukuell, Circuit Judge. This is au actiou by oue tenant in common of certain real estate, who had redeemed the entire estate from two mortgages thereon, against her cotenants, to subject their interest in the property to a lien for their proper share of the redemption money, and to foreclose such lien.

<p>Appeals from orders of tbe circuit court for 'Winnebago county: Geo. W. Burnell, Circuit Judge.</p> <p>On. the 17th of November, 1897, Henry Sherry made a voluntary assignment for the benefit of his creditors to one Cameron. On the same- day the Park Falls Paper & Pulp Company and the Ingersoll Land & Lumber Company, corporations of which Sherry was president, also made voluntary assignments to the said Cameron. Cameron qualified as assignee under all the assignments. Prior to the assignments, Sherry had indorsed notes of the two corporations, and the same were, at the time of the assignments, the property of' the German National Bank of Oshkosh, but were not yet due. The notes became due at various dates between November 24 and December 27, 1897, and were all duly protested, and thereafter the bank duly filed proofs of claim upon said notes against Sherry as indorser, to which the as-signee filed objections. The court allowed the bank’s claim upon all of these notes, and the assignee appeals from that allowance.</p> <p>At the time of the assignments Sherry was also indebted to the bank upon his own note for $1,500, and he had given the bank, as collateral security thereon, the note- of the Park Falls Paper & Pulp Company for $1,500, payable to his own order, and indorsed by himself, which fell due December 27, 1897, and was duly protested on that day. The bank filed proof of its claim against Sherry for $1,500 on his own note, and attempted to file proof of claim against him for $1,500 additional on account of his indorsement of the Park Falls Paper & Pulp Company collateral note. To this last claim the assignee filed objections, and the court held that it could not be proven, and the bank appeals from . this disallowance.</p> <p>They contended, inter alia, that in order to entitle a creditor to prove his claim, the debt upon which it is based must be due or J;o become due as a matter of certainty, not a debt to become due upon some contingency. Stats. 1898, secs. 1694i£, 1698,1699,1700. As to wbat constitutes sucb a debt, see People v. Arguello, 37 Cal. 524,525; Wentworth v. Whittemore, 1 Mass. 471, 473; Drnis v. Sam, 3 id. 33, 37; Frothingham v. Haley, id. 68, 71; Wood v. Partridge, 11 id. 488, 493; Garton v. B. <& F. B. Go. 4 Hurl. & N. 33,37; In re Greensill, L. E. 8 0. P. 24,27; In re Westbourne Grove Drapery Go. 5 Gh. Dir. 248, 252, 253; In re Sevenor, 144 N. Y. 271, 273, 274; Matter of Ada/ms, 67 How. Pr. 284; Bagsdale v. Winnsboro Sat. Bank, 23 S. E. Eep. 947, and cases cited; Brough’s Estate, 71 Pa. St. 460; Weinmcmn dk Go is Estate, 164 id. 405; Bosler v. Kuhn, 8 Watts & S. 183; In re Snyder's Estate, 8 Pliila. 302; Sweat-mem’s Appeal, 150 Pa. St. 369; Deeme v. Galdwell, 127 Mass. 242. Statutes providing for proof of debts contracted before, and to become due after, assignment or bankruptcy, do not justify allowance of claims contingent at time of assignment or bankruptcy. JJtterson v. Vernon, 4 Term, 570; Stadnes v. Planck, 8 id. 386, 389; Taplor v. Mills, 2 Cowp. 525, 526; Snaithv. Gale, 7 Term, 364; Goddard v. Vemder-heyden, 3 Wils. 262; Paul v. Jones, 1 Term, 599; Boosevelt v. Mark, 6 Johns. Ch. 266, 271, 283, 285; Andrus v. Waring, 20 Johns. 153; Bishop v. Young, 17 Wis. 47, 53; Foster v. Singer, 69 id. 392, 394, 395; Edwards v. Boephe, 74 id. 571, 575. On the same point, and relating specifically to in-dorsers, see Frost v. Garter, 1 Johns. Cas. 73-76; Mechanics’ <& F. Bank v. Gapron, 15 Johns. 468, 469; Doolittle v. South-worth, 3 Barb. 79, 85; In re Loder, 4 Ben. 305; Wells v. Mace, 17 Vt. 503; Farmers’ Ba/nlc v. Gdlpin, 1 Harr. 563; McMullin v. Bank, 2 Pa. St. 343; Self ridge v. Gill, 4 Mass. 96; Oummings v. Thompson, 7 Met. 132; Amsldev. Wilson, 7 Cow. 668.</p>

<p>Appeal from an order of'the superior court of Milwaukee county: Geo. E. SutheelaND., Judge.</p> <p>This action was brought against Mary J. O’Oonnor, Lawrence O’Connor, Patrick E. O’Oonnor, Phillip O’Oonnor, Jr., Peraard 0. Beilly, Ernst A. Conrad, and Edw. A. Benson. The facts stated in the complaint will sufficiently appear from the opinion. The defendant Lawrence O’ Connor demurred to the complaint, and appealed from an order overruling his demurrer.</p>

<p> Criminal law: Pleading: Attempt to intimidate worlcmen: Evidence: Intent: Immaterial error. </p> <p>1. The complaint in this case — alleging that defendant, as agent of a trades council, at a time and place named, did, by threats, intimidar tion, force, and coercion, wilfully attempt to hinder and prevent certain nonunion men from engaging in and continuing in their lawful work and employment as carpenters in the erection of a certain building, and that such attempt consisted in the defendant’s saying to said men: “You cannot build this building. I will fight it if it takes all summer; and if your city will not protect us we will get the militia” — is held sufficient to charge the offense, described in sec. 4466e, Stats. 1898, of attempting by threats, intimidation, force, or coercion to hinder or prevent a person from engaging or continuing in a lawful work or employment.</p> <p>2. A conviction will not be set aside on writ of error if the evidence is sufficient to support it.</p> <p>8. Where the issue on trial involves the intent of a party, such party may, in his own behalf, testify to his intent or his absence of intent.</p> <p>4. Where a person charged with attempting to intimidate certain persons by threats had testified that he did not make any such attempt, it was not a material error to refuse to allow him to testify as to whether he intended to intimidate them.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge.</p> <p>This is a contest for priority between, attaching creditors of real estate. The plaintiff, claiming title under a sheriff’s deed based upon a junior attachment, followed by a judgment, execution, and sale, brings this bill in equity to restrain the defendants from making sale of the real estate under an execution and judgment based upon a prior attachment, and to set aside the levy under that attachment and the lien of such judgment as a cloud upon the plaintiff’s title.</p> <p>The facts in regard to the respective claims are in effect as follows:</p> <p>On July 11, 1893, Koetting was cashier of the South Side Savings Bank, and was at the time heavily indebted to the bank, and grossly insolvent. As trustee under the will of one Shepardson, he filed a bond in favor of the Shepardson estate for $164,000. The several defendants in this action, except Isewring, the sheriff, signed that bond as sureties of Koetting. Thereupon and about that date, Koetting received from that estate $38,275.62, and deposited the same in that bank. July 21, 1893, the bank suspended, and Koetting absconded. July 24, 1893, the plaintiff was appointed receiver of that bank. July 26, 1893, the defendants in this action, as such sureties, commenced an action agaiiist Koet-ting, and obtained an attachment upon an affidavit of the defendant Peter Barth, to the effect that Koetting was indebted to the plaintiffs therein in the sum of $56,272.52, as near as might be, over and above all legal setoffs, and that the same was due upon an express contract, and that Koet-ting absconded with intent to avoid service oí a summons and attachment on the real estate in question. The complaint therein was not made until August 18,1893, nor filed until August 29, 1893, and alleged, in effect, such insolvency of Koetting, and that the same was known to himself, but unknown to such sureties, the appointing of Koetting as such trustee, the giving of such bond by Koetting as principal and by the plaintiffs therein as sureties, and contained the further allegation that, at the time of so signing the bond as sureties, Koetting “ covenanted and agreed with the plaintiffs, and each of them, that, in consideration of the plaintiffs becoming such sureties on said bond, he (the said defendant) would indemnify and save harmless the said plaintiffs, and every of them, from and against any liability upon said bond ■or growing out of the signing thereof,” and prayed judgment against Koetting for $40,000 and costs. August 21, 1893, Koetting entered his appearance in said cause, and waived service of any further process upon him, and consented to the entry of judgment therein in favor of the plaintiffs for the amount claimed in the complaint. Judgment was accordingly entered therein for that amount August 29, 1893.</p> <p>On August 10, 1893, and after the attachment of the defendants, but before judgment therein, the plaintiff, John Barth, as such receiver, commenced an action against Koet-ting, and upon his affidavit to the effect that Koetting was' indebted to him as such receiver in the sum of $109,482.54, with- interest from July 1, 1893, over and above all legal-setoffs, and that the same was “ due upon implied contract,” and that Koetting had absconded, obtained an attachment, and attached the real estate in question. The complaint therein alleged, in effect, the suspension and failure of the bank, the appointment of the plaintiff as such receiver and his acceptance and qualification as such, and that Koetting, as managing officer of the bank, and knowing all the .facts, bad since 1886, by himself, and by and through one Jacob Wuster, an irresponsible person, fraudulently drawn money from the bank to the amount of $109,225.46, and used and lost the same in speculating on the board of trade, and thereby caused the property and assets of the bank to be illegally and unlawfully converted to his own use, and thereby became and was indebted to the bank and to the plaintiff, as such receiver, in the sum mentioned,— and prayed judgment accordingly. November 3,1893, judgment was entered therein for $111,449.74, for principal, interest, and costs. Execution was thereupon issued, and levied upon said real estate, based upon such attachment, and the same was sold to the plaintiff as such receiver on such execution, February 10,1894. On May 28,1895, a sheriff’s deed of the premises was issued thereon to the plaintiff of all the title Koetting had in the premises August 10, 1893, and such sheriff’s deed was recorded June 8, 1895.</p> <p>On March 20, 1897, the plaintiff, as such receiver, commenced this action in equity to set aside and remove as a cloud upon his title the lien so claimed by the defendants by virtue of their attachment, judgment, and execution mentioned. The complaint herein alleged, in effect, the facts stated, and that, at the time of the rendition of the judgment against Koetting and in favor of the defendants as such sureties, Koetting was not indebted to them in any sum or any amount whatsoever, and that the affidavit of Peter Barth had no foundation except that the plaintiffs therein had signed such bond as such sureties of Koetting, on which they had not made any payment on behalf of Koetting; that they instituted the attachment for the purpose of acquiring a lien upon such real estate, and appropriating the same to themselves, in order to hinder and delay the creditors of Koetting in the collection of their debts; that such sureties were not then creditors of Koetting; that the obtaining of such, attachment, judgment, and execution was fraudulent and void as to the plaintiff in this action. The defendants, herein, except the sheriff, answered such complaint by way of admissions, denials, and counter allegations, among other things, to the effect that, at the time Koetting requested them to become sureties on his bond, he covenanted and agreed with them and each of them that, in consideration of their becoming such sureties upon his bond and incurring such liability for and on his behalf, he would indemnify and save harmless every one of them from and against any liability upon said bond as such sureties or growing out of their signing the same; that Koetting committed a breach of his covenant with such sureties by depositing the trust moneys in the bank, and thus knowingly squandering and losing them, and thereby rendering such sureties liable to the beneficiaries of said trust; that, after the entry of said judgment, the defendants, as such sureties, actually paid the sum of about $36,000 as a partial payment to such estate on account of such loss, and that a judgment had been recovered against them in favor of the estate for $63,975.96.</p> <p>The cause having been tried, the court filed its findings of fact aud conclusions of law, wherein the facts stated were in effect found, and it was also found in effect that, prior to-the commencement of said action by said sureties against Koetting, no proceedings had been instituted in the county court to establish the default of Koetting as such testamentary trustee, or the liability of the sureties for such default,, and no citation or order of any kind had been issued by or from the county court calling upon or citing him to account to the court or otherwise as such trustee, and no demand of any kind whatever had been made upon Koet-ting, as such trustee, to account; that no order or permission was ever obtained from the county court by the sureties authorizing or permitting them to institute said suit or any suit whatever against Koetting; that July 26, 1893, the default of Koetting had not been in any wise established or adjudicated, and that his liability and that of his sureties was still undetermined and contingent so far as the proceedings in the county court were concerned, but that his default had in fact occurred, and was well known to him and his sureties; that subsequently to the entry of said judgment, August 29,1893, the sureties were compelled to pay, by reason of their liability upon said bond for the defalcations of Koetting, to his successor, and did actually pay, an amount much in excess of the entire amount of said judgment with interest from the date of its entry; that such judgment against Koetting has not been paid to the sureties, nor has any part thereof, and that each of the sureties, except one, paid separately towards such payment the sum of about $13,000; that the sureties instituted their action, and caused the writ of attachment to be issued therein, and the complaint to be filed, and the judgment to be entered, and .all proceedings to be had therein without any fraud, and without any intent on their part, or on the part of any of them, to hinder, delay, or defraud any other creditor of Koetting, and in entire good - faith, and in order to secure themselves against loss on their liability on such bond, and in good faith indemnify themselves out of the property of Koetting against their liability upon the bond.</p> <p>And, as conclusions of law, the court found, in effect, that the plaintiff’s lien by virtue of his attachment was subordinate and subject to the lien of the defendants by virtue of their attachment; that whether the defendants or any of them were indemnified severally against liability upon “the bond otherwise than by operation of law was immaterial to the decision of this case, and was not decided; that as to whether there was an agreement to indemnify the defendants jointly, as distinguished from a several indemnity, there was no evidence of such joint indemnity; that the defendants were entitled to judgment dismissing the plaintiff’s complaint, with costs, but to be payable out of any funds in bis bands as sucb receiver.</p> <p>From tbe judgment entered tbereon accordingly tbe plaintiff brings this appeal.</p> <p>They argued, inter alia, that tbe plaintiff’s attachment is void because tbe complaint is in tort, and the allegation of an implied promise does not make it one on contract. Kewaunee Go. v. Pecker, 30 Wis. 624, 633; Allen v. Allen, 52 Hun, 398; Ba/rnes v. Quigley, 59 N. T. 265; Boss v. Mather, 51 id. 108; Piercer. Ga/rey, 3Y Wis. 232; Schevmert v. Kaehler, 23 id. 523;' Moore v. Fóble, 53 Barb. 425; Lame v. Gameron, 38 Wis. 603. Upon tbe facts stated no implied assumpsit can arise. Gooper v. Gooper, 14Y Mass. 3Y0. In case tbe tort can be waived, a recovery can be bad only for tbe amount of the plaintiff’s property by which tbe defendant was himself unjustly enriched. In an action against several tort feasors.on an implied assumpsit, a recovery cannot' be bad against one of them merely because be aided toward the conversion or loss of tbe plaintiff’s property. Keener, Quasi-Cont. 159, 163; Fat. Trust Go. v. Gleason, YY N. T. 400; Fanson v. Lvnsley, 20 Kan. 235, 239; Tightmeyer v. Mongold, 20 Kan. 90; Patterson v. Prior, 18 Ind. 440; Lwnited L. Asso. v. Glendale 1. Asso. 99 Wis. 54. Tbe plaintiff, as a subsequent attaching creditor, cannot take advantage of any defect or irregularity tbe effect of which tbe judgment debtor himself might waive, sucb as that tbe attachment is upon a demand not yet due. Shakmam v. Schwartz, 89 Wis. Y2, YY; Standard 1. Go. v. Lamsing W. Works, 58 Kan. 125. Tbe judgment in the defendants’ attachment is conclusive against tbe plaintiff unless he can show fraud or collusion. Bank of Fayetteville «. SpuFling, 7 Jones’ Law (N. 0.), 398; Rudolph v. McDonald, 6 Neb. 163. The principal could create a lien upon his property, or permit one to be acquired by his sureties, by legal process. Gladwin v. Garrison, 13 Oal. 330; Haseliine v. Guild, 11 N. IT. 390; Hapgood v. Wellington, 136 Mass. 217; Merchmits’ & M. Mat. Bank v. Omvings, 149 N. T. 360. The defendants had a right of action on the express covenant of their principal against liability, and that right of action was complete for the full amount of their liability. Gilbert v. Wi/mam,, 1 N. T. 550; Belloni v. Freeborn, 63 id. 384; Kohler v. Matlage, 72 id. 259, 266; Dorrwigton v. Min-nick, 15 Neb. 397; Wilson v. Stilwell, 9 Ohio St. 470; Hall v. Mash, 10 JVIich. 303; Hodgson v. Bell, 7 Term, 97; Holmes v. Rhodes, 1 Bos. & P. 638. The agreement Avas broken by the principal’s failure to invest the trust funds in safe securities. Simmons v. Oli/cer, 74 Wis. 633; In re ScudcleRs Estate, 47 N. Y. Supp. 101. The amount of the sureties’ liability was the amount of the trust property wrongfully lost. They may waive, and in this case have waived, the determination of that amount by the county court. Meyer v. Barth, 97 Wis. 352; 'Shepard v. Pebbles, 38 id. 373. A proceeding against, the principal in the county court, preliminary to an action against the sureties, is not essential. Sec. 4014, R. S. 1878; Oomm. v. Wenrick, 8 Watts, 159; Johannes v. Youngs,. 48 Wis. 101; Golder v. Littlejohn, 23 id. 251; S. G. 30 id. 344.</p>

<p> Eminent domain: Construction of railroad in street: Rights of abutting owners on opposite side: Consequential damages: Limitation of actions: Assumption of liability by vendee of railroad. </p> <p>1. In the absence of a statute requiring the payment of damages to property where no part of it is taken, as a condition of the exercise of the right of eminent domain to acquire property for public use, such injuries are deemed purely consequential and damnum absque injuria.</p> <p>3. Ch. 2oo, Laws of 1889, to the effect that opposite owners of lands abutting on a street or highway shall have an equal right to an unobstructed street for the full width thereof, and prohibiting its obstruction so as to materially injure its usé as a highway, or injure abutting property on either side, without compensation for the damages thereby caused, does not vest any interest or estate in the land in an abutting owner not possessed by him before, but gives to such owner, in case of a taking of part of the street for railway purposes, the right to recover consequential damages accruing thereby to his land.</p> <p>3. The construction of a railroad in a street by the consent of an abutting owner of property, either expressly given or by not objecting, gives the abutting owner an immediate right of action for the damages caused to his land abutting on the street, without reference to the side on which the railroad track may be placed, and the statute of limitations immediately commences running against such claim.</p> <p>4. If a railroad be constructed across, or in front of, the land of another without objection on his part, he is deemed to have relinquished all rights of property affected thereby, and accepted in lieu thereof the constitutional or statutory right to compensation for the lands taken and the damages to lands not taken allowed by law, with the remedy provided by statute for determining the amount of such compensation or damages, and the recovery thereof. The claim for. compensation is a mere chose in action, assignable and enforceable in all respects as any other thing in action, and independent of the subsequent ownership of the land. It does not constitute a right in land, but a right to recover the value of the land surrendered for public use, or damages accruing thereby to lands not taken, which are recoverable by law.</p> <p>5. Whether the claim be for lands taken or damages to lands not taken, subd. 3, sec. 4333, Stats. 1898, limiting the commencement of actions to six years, applies; and where the damages recoverable are dependent wholly on the statute, as in case of damages to lands abutting on a street, no part of which lands are taken, subd. 4 of such section applies.</p> <p>6. If a railroad corporation constructs its line of road without making-compensation for lands taken therefor, and subsequently conveys its property to another railroad corporation without such other assuming and agreeing to pay the liability of the vendor corporation for the taking of such land, the statute of limitations runs on the claim from the time of such taking. But if the vendee assumes and agrees to pay the liabilities of the vendor, that constitutes a new obligation for the benefit of the claimant for compensation, and the statute of limitations runs on such obligation from the time of the agreement between the vendor and vendee.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeal from a judgment of tlie circuit court for Manito-woc county: 2ÑT. S. Gilson, Circuit Judge.</p> <p>This was ail action to recover damages on account of the accidental death of the plaintiff’s intestate, one Anna Strauch, alleged to have been caused by the negligence of the defendant city. The evidence shows that in the city of Mcmitowoc there are several swing bridges across the Manitowoc river, and that one of said bridges, called the Main street or Tenth street bridge, crosses said river from north to south, and that the same is frequently opened by day and by night for the passage of vessels through the same. The plaintiff’s intestate was a resident of the city of Manitowoc in August, 1891, and was a woman forty-three years of age, physically strong, and the mother of several children. She was well acquainted with the bridge, knew that it was a swing bridge, and crossed it very frequently. On the night of the 27th of August, 1891, she had been visiting at a friend’s house on the south side of the river, and was returning to her own home on the north side of the river, between the hours of 9 and 10 in the evening. Uo one seems to have seen her ajijiroaching the bridge, but the evidence shows without dispute that shortly before she reached the bridge the bridge tender rang the bell thereon, and opened the bridge to permit a steam barge to pass through, and that, just as the barge was about passing through, the intestate walked off from the westerly sidewalk on the south approach of the bridge, into'the river, and was drowned. Uo one saw her fall in, but her screams were immediately heard, and her body was recovered within , a short time. The night was somewhat dark and cloudy,, but it was not storming at the time of the accident. There were two twenty-four-candle power electric lights near the bridge,— one immediately over the east sidewalk on the south approach, ninety-eight feet south of the draw, and one immediately over the west sidewalk on the north approach, 126 feet north of the draw. There was also a kerosene lamp placed upon the middle of the bridge, eight feet above the floor, which cast a red light toward the approach on each, side of the bridge when the bridge was open, and a white light when the bridge was shut. The swing part of the bridge was 162 feet in length. All of these lights were lighted at the time of the accident. There were no guards upon the approaches of the bridge to prevent people from walking into the river when the bridge was open.</p> <p>The following special verdict was rendered by the jury: _ “ 1st question: Did the plaintiff’s intestate, Anna Strauch, ■on the 21th day of August, 1891, at the time and place complained of, walk along the west walk of the approach to the bridge, and fall therefrom into the Manitowoc river, causing her death by drowning? Ans. Yes. (By consent of counsel.) 2nd question: On the 27th day of August, 1891, at the time it is alleged the plain tiff’s intestate fell into the river and was drowned, was the sidewalk across the bridge at the place in' question insufficient and unsafe for travel over the same on foot by persons in the exercise of ordinary care? Ans. Yes. (By the jury.) 3rd question: At the time and place complained of, did the absence of a guard or gate at the end of the approach next to the drawbridge, the position and kind of electric lights on the north and south approaches to the bridge, the danger light on the drawbridge, and the ringing of the bell before turning the draw, make travel over and along the west walk unsafe or dangerous to persons using ordinary care? Ans. Yes. (By the jury.) 4th question: "Was the plaintiff’s intestate, for a considerable time before her death, familiar with the bridge, and with the signal light on the drawbridge, and know what such signal light meant ? Ans. Eirst question, yes; second questipn, no. (By the jury.) ' 4J question: "Was the plaintiff’s intestate, for a considerable time before her death, familiar with the electric lights on the north and south approaches to the bridge, and that the draw might be swung open at any time for the passage of vessels ? Ans. (by con.sent of counsel) Yes. 5th question: On the night in question, at the time Mrs. Anna Strauch was approaching this bridge and before she reached the drawbridge, could she have seen that the draw was open if she had looked ? Ans. No. (By the jury.) 6th question: Did ordinary care require Mrs. Anna Strauch, when she reached the approach to the bridge, to look to see whether the draw was closed, before attempting to pass upon and over the same ? Ans. Yes. (By consent of counsel.) 1th question: At the time and place in question, was Mrs. Anna Strauch guilty of any want of ordinary care which contributed to produce or cause her death ? Ans. No. (By the jury.) 8th question: In case the court shall be of the opinion that the plaintiff is entitled to recover, then at what sum do you assess plaintiff’s damages? Ans. At $1,110. (By the jury.) ”</p> <p>Judgment for the plaintiff was granted upon this verdict, and the defendant appeals. '</p>

S. Gilson, Circuit Judge. Action to foreclose a mechanic’s lien. Defendant made a motion to set aside and vacate the plaintiff’s petition for a lien, which was overruled. .He then made a motion to make the complaint more definite and certain. This motion was also denied. Defendants appeal from the orders denying said motions.

<p>Appeal from a judgment of the circuit court for Pond du 'Lac county: 2ST. S. Gilson, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Fond du Lac county: N. S. GilsoN, Circuit Judge.</p> <p>Henry D. Parsons and Gynthia, A. Parsons, husband and wife, on the 7th. day of November, 1887, made application by verified petition, stating the requisite facts, to the county court of Fond du Lac county, for leave to adopt La Fayette Bussell Bede, the minor lawful child of L. F. Bede and Sarah 0. Bede. The mother of the child was alleged to be dead, and the father, on information and belief, to have abandoned the child, and it was alleged that the child had for some time been cared for by its grandmother and uncle. The uncle was alleged to be one of the next of kin, and as such he signed a written consent to the adoption. An order was entered on the petition in due form, establishing the status of the child as prayed for, and reciting all the facts requisite thereto, and that the truth of the same appeared to the satisfaction of the county judge by the verified petition. The child was immediately thereafter taken into the family of the petitioners and resided with them until the ■death of his adopted father in 1890, and thereafter with the .adopted mother till he was of age.</p> <p>Thereafter, on September 9,1897, the adopted mother, Gynthia A. Parsons, for the purpose of avoiding any right of the adopted son to claim an interest in the property of her deceased husband, petitioned the county court for an order vacating the order of adoption, setting forth among other things that her consent to the adoption was without any independent will on the subject, but solely to gratify her husband; that neither intended by the adoption to give the child any rights as heir of his adopted father; that both petitioners were mistaken as to the legal effect of the adoption proceedings; that she did not know when she signed the petition that the allegation therein contained that William S. Bussell was one of the child’s next of kin was untrue, and that the boy then had, as the fact was, a brother living named Boy Bede who was twenty-one years of age, but that such fact was well known to said Bussell who had the custody of the boy and consented to the adoption as next of kin. Such proceedings were had in the county court in relation to the petition that an order was entered dismissing-the same, from which the petitioner appealed to the circuit court, where the order was affirmed. This appeal is from the judgment of affirmance.</p> <p>cited Behiltz v. Boenitz, 86 Wis. 31; Appeal of Royston, 53 id. 612, 618, 620; Fwrgeson v. Jones, 17 Oreg. 204; Luppiev. Winans, 37_N. J. Eq. 245; Winans v. Imppie, 47 id. 302; Bewail v. Roberts, 115 Mass. 262; Humphrey's Appeal, 137 id. 84; Ex parte Ola/rh, 87 Oal. 638; Jolmson's Estate, 98 id. 531; In re Stevens, 83 id. 322.</p> <p>To the point that, notwithstanding the failure to give notice to the father, the proceedings were valid and binding upon the parties thereto-, they cited Behiltz v. Roenitz, 86 Wis. 31; Hugent v. Powell, 4 Wyo. 173; Brown v. Brown, 101 Ind. 340, 343; Bewail v. Roberts, 115 Mass. 262; Wmans v. Imppie, 47 N. J. Eq. 302.</p>

<p> Pleading: Judicial notice: Presumption. </p> <p>A complaint in an action against a city by its Chief of police to recover his salary, which alleges that he was employed for a year and until his successor should be elected and qualified, need not negative the fact that such successor has been duly elected and has accepted and qualified, that being a matter of defense. Although the court will take judicial notice of the provisions of a city charter on that subject (subch. Ill, ch. 152, Laws of 1883), and will presume that the common council has performed its duty, yet it will not presume that a person elected as plaintiff’s successor has qualified for the office.</p>

<p>Appeal from an order of the circuit court for Manitowoc county; N. S. GilsoN, Circuit Judge.</p> <p>To the point that the defendant bank bad lost its corporate existence, they cited Richards v. Attlebor-ough Wat. Bank, 148 Mass. 187; Bank of Bethel v. Pahgui-ogue Bank, 14 Wall. 383; Wational Bank v. Insura/nce Go. 104 U. S. 55; Rosenblatt v. Johnston, id. 462; Schrader v. Mcrn.-iifacturers’ Wat. Bank, 133 id. 67; Chemical Wat. Bank v. Hartford Deposit Go. 161 id. 1.</p>

<p>Appeal from an order of the circuit court for Manitowoc county: N. S. GilsoN, Circuit Judge.</p> <p>Condemnation proceedings. In October, 1896, the respondent commenced condemnation proceedings for the purpose of taking a number of acres of land owned by the appellants for switching and storage yards. In November, 1896, the petition was heard, condemnation was ordered, and commissioners appointed. Nothing was done by the commissioners until December, 1897, when the appellants demanded that the commissioners perform their duties, and in pursuance of such demand the commissioner commenced taking testimony January 7,1898, and took testimony for several days. February 2, 1898, the railroad company served notice on the commissioners and the landowners discontinuing the proceedings. Nevertheless, the appellants demanded that the commissioners go on with the proceedings, and on the 8th of February the commissioners took further testimony. On the 10th of February the respondent obtained an order to show cause, returnable on the following day, why the proceedings should not be dismissed, which order contained a clause staying all proceedings until the hearing of tbe motion. This order was served on tbe lOtb, but, notwithstanding tbe stay, tbe commissioners, later on tbe same day, filed their report and award. Tbe motion to dismiss was opposed by tbe appellants by an affidavit showing,, among other things, that they bad been put to expense in defending the proceedings, but not showing tbe amount of such expense. Tbe court took tbe motion under advisement until June 2, 1898, when an order was made dismissing the proceedings, and requiring tbe railroad company to pay tbe commissioners’ fees up to tbe time of tbe notice of discontinuance. From this order tbe defendants appeal.</p>

<p>Appeal from a judgment of tbe circuit court for Grant county: Geo. ClemeNtsoN, Circuit Judge.</p> <p>This case arose upon tbe following state of facts, as appears from tbe certificate of tbe circuit judge wbo tried tbe case:</p> <p>In 1845 the town of Platteville acquired a tract of land for the purposes of a cemetery. Previous to 1854 tbe village (now city) of Platteville succeeded to tbe possession and control thereof, which it still retains, said cemetery being within its limits. Said cemetery was never platted. No deeds or written burial permits were ever made to any person. No rules or regulations concerning said cemetery were ever made by tbe authorities in charge. No money was ever paid for tbe privilege of burial in said .cemetery. It bad always been tbe custom for persons burying dead in said, cemetery to select for that purpose any unoccupied ground within said cemetery, without paying therefor. - In 1866 tbe plaintiff’s mother was buried in said cemetery, according to said custom. In 1867 the plaintiff, wbo then resided within tbe limits of tbe village of Platteville, inclosed tbe grave of his mother and those of two of bis sister’s children, previously buried, and sufficient ground east of said graves, for another row of graves, with a fence, and planted four evergreen trees, two at tbe east corners of said inclosure and one near tbe middle of tbe north line, and one near the middle of tbe south line thereof. In 1867 tbe plaintiff’s brother was buried by the side of bis mother, and in 1875 the plaintiff’s father was buried between the two. The fence around the inclosure was removed by the plaintiff after remaining about twelve years. In 1887 the plaintiff’s sister was buried to the east of his brother’s grave, near the north line of what had been said inclosure, one of said trees being removed by her relatives in said burial. Ever since the lot was fenced the plaintiff has cared for and attended the same, and has been in ¡possession of the same, claiming it as a family burial lot. In 1894 the defendant city, by its servant, its codefend-ant, in the course of general improvements of said cemetery, for which money had been appropriated by said city, removed the three remaining trees without notice to the plaintiff, and, as the jury found, to the damage of said lot $50.</p> <p>Is the judgment for the plaintiff for damages for the removal of said trees supported by the foregoing facts, the question of the amount of damages having been submitted to the jury subject to the opinion of the court?</p> <p>They argued, among other things, that the respondent had no title to the land, nor to anything growing upon it. The city could convey only a right to use for burial purposes. Perkins v. Lawrence, 138 Mass. 361; Page v. Bymonds, 56 Am. Rep. 481; Bessemer L. <& I. Go. v. Jenkins, 111 Ala. 135; R. S. 1878, secs. 1439,1448. His right, if any, extended only to the land actually occupied by him. R. S. 1878, sec. 4213. The powers given by law to the common council as trustees were of a g7i<m-judicial nature, and its servants cannot be held responsible for mistakes in judgment. Kendall v. Btolces, 3 How. 87, 98; Allen v. Ghippewa Falls, 52 Wis. 430. The city cannot be held liable for the acts of its officers in this case. The officer appointed in obedience to law to perform a public service, in which the city has no particular interest and from which it derives no special benefit in its corporate capacity, carnnot be deemed the servant or agent of the city, for whose negligence it can be held liable. Kayes <o. Oshkosh, 33 Wis. 314; Wallace v. Menasha, 48 id. 79; Sehultz v. Milwaukee, 49 id. 254; Gal/well v. Boone, 33 Am. Rep. 154; Maxmilian v. New York,. 62 N. T, 160; Hajford v. New Bedford, 16 Gray, 297.</p>

EeRoe to review a judgment of tbe circuit court for Rich-land county: G-eo. ClemeNtsoN, Circuit Judge. Tbe action was commenced by Rifley against Mathews in justice’s court. Tbe complaint was for $185 due on a written contract originally calling for $385. Defendant by answer counterclaimed for various items of alleged indebtedness, not constituting an account or having any connection with plaintiff’s cause of action, aggregating $380.99.

<p> Master and servant: Negligence: Fellow-servants. </p> <p>1. In an action by an employee against the owner of a zinc mine for an injury caused by the explosion of a charge in such mine, the evidence tended to show that the plaintiff had had many years experience in working in such mines; that, at the place where the accident occurred, three out of the six holes previously drilled in the forehead of the mine had failed to explode, and wires from twelve to eighteen inches in length were sticking out from them, but one of such wires had been removed without the knowledge of the defendant’s shift boss before he set the plaintiff and his working partner to blasting there; that the shift boss, at that time, informed them that there were some holes there unexploded; and that they started to drill in the hole from which the wire had been so removed, supposing it to be the butt of an old hole, when the charge exploded, injuring the plaintiff. Held, that if the wire was there when the shift boss last saw it, and he had no reason to believe it had been removed, the defendant was not liable.</p> <p>S. In such a case there was evidence that when plaintiff and his working partner were about to commence blasting on the forehead in question, one B. informed both of them that there were three holes in the forehead which had missed. Held, that the refusal to submit for special verdict, upon request, the question whether E. so informed plaintiff and his working partner, or either of them, was error, although one of the questions submitted covered the point so far as plaintiff himself was concerned.</p>

ClemeNtsoN, Circuit Judge. This was an action of trespass, begun in justice’s court, and removed to circuit -court on plea of title, under R. S. 18J8, secs. 3619, 3620. The facts were that the plaintiff and the defendant occupied adjoining premises, the plaintiff’s land being the N. of the N. E. ^ of section 15, and the defendant’s land being the S. of the S. E. -J- of section 10.

<p> Appeal: Evidence: Variance: Defective highways: Negligence: Instructions: Eemarlcs by court. </p> <p>1. In an action against a town for an injury caused by defects in a highway, it was not error to permit the plaintiff to testify that he could not, during that summer, pass from one side of such highway to the other because of obstructions in the center.</p> <p>2. It was not error to permit a witness, who had described a rock in the track of such highway and its surroundings, to testify in effect that driving over it would cause a jar.</p> <p>-3. Nor was it a material error to permit a witness to testify that he knew the overseer of the highway district in which the injury occurred; that such overseer lived northwest of where the defect was; and that he had seen him at work that summer on the road east thereof, and had worked with him.</p> <p>4. Where the defect in the highway alleged to have caused the plaintiff’s injury and the location of it are so described in the complaint and the notice served on the town, with reference to well known objects, that the town could not be misled or surprised by the evidence given, a slight variance in the proof as to the place will not avail the defendant.</p> <p>5. After a witness had testified that, just before the injury, the plaintiff had been drinking beer, — not less than five glasses, probably more,— he could not remember exactly how many, and after an objection to a question as to how many glasses, in his judgment, the plaintiff had drunk, had been sustained, the court remarked, “ Evidently he has answered the question with a guess.” Held, not a prejudicial error.</p> <p>6. For a traveler to drive over a highway at a point where he knows a defect exists, without thinking thereof, is not per se contributory negligence.</p> <p>7. It was not error, in an action for an injury caused by a rock in a highway, for the court, after giving the instruction requested by the defendant that if plaintiff at the time he was injured, “failed even in a slight degree to exercise ordinary care in driving over the rock ... he cannot recover,” to add, “The meaning of this instruction is, in fact, that he must use ordinary care, and must not to any extent have failed to come up to what is ordinary care. Since it is asked, I will say to you that what is known as slight negligence in the law will not defeat a recovery. Slight negligence means a want of that care which very prudent men exercise. Every one traveling over a highway is required to use ordinary care, . . . that is the care that the great mass of people use in traveling over the highways.”</p> <p>8. The statute requiring instructions to be given without change or modification, or refused in full (sec. 2853, R. S. 1878), was not intended to preclude, and does not preclude, the court from giving further and proper instruction on the same subject.</p> <p>9. A town is not relieved from liability for an injury caused by defects in a highway of which plaintiff had knowledge by the fact that the overseer in charge of such highway had previously told the plaintiff to fix bad places in the highway whenever he found them and allowance would be made therefor in his taxes, and that plaintiff said he would.</p>

B. WyMAN, Circuit Judge. The complaint states that the plaintiff is the owner of certain premises (describing them) of which he has been in exclusive possession for more than twenty years; that defendant owned adjoining promises; that on the dividing line there has been erected and maintained for more than twenty years a partition fence, as the demarkation line between the adjoining lands; that the defendant threatens to remove said fence, to the irremediable injury of…

OlemeNtsoN, Circuit Judge. Action of ejectment tried by the court without a jury. The record title was in plaintiffs intestate at the time of his death, and the right to possession in plaintiff for the purposes of administration unless the actual ownership of the property was in defendant, who relied, in the main, on title by adverse possession. The court found the facts in defendant’s favor, to which plaintiff in due form and time excepted.

B. WyMAN, Circuit Judge. Tlie record shows that plaintiff secured a judgment against the defendant Jolm Bihor&Iei on April 26, 1895, for $668.66, damages and costs; an execution was issued thereon, and was in the hands of the sheriff of La Crosse county at the time this action of garnishment was commenced. The affidavit required by the statute was made, and ~W. J. HicMsch was duly summoned as garnishee.

B. WyMAN, Circuit Judge. This was an action for slander. The complaint, after alleging the appointment of a guardian ad litem herein, is as-follows: “ That plaintiff is a married woman, the wife of Harvey Clute.

B. WymaN, Circuit Judge. This action was brought to recover damages to a car load of strawberries shipped from South Haven, Michigan, to La Crosse, “Wisconsin, alleged to have resulted from the neglect of defendant in delaying the car and failing to ice it while in its possession, in the city of Chicago. On Saturday, June -6, 1896, one Delamere, a fruit dealer, shipped from South Haven a car load of strawberries consigned to plaintiff at La Crosse.

B. Wxmax, Circuit Judge. Action to recover compensation for personal injuries alleged to have been caused by the negligence of defendant’s employees. The negligence complained of was running an electric car at a rapid rate, without ringing any bell or giving any warning of its approach.

B. Wyman, Circuit Judge. This action was commenced in justice’s court, and resulted in a judgment for the plaintiff for $10 and costs. The defendant appealed to the circuit court. It then made a motion, on notice, to “ vacate, annul, and set aside ” the judgment of the justice, on the ground that the justice had no jurisdiction of the subject matter of the action. This motion was denied.

B. Wyman, Circuit Judge. This was an action to recover $200, claimed to be due as a balance of salary for a year’s services under-an alleged employment for the whole year at $1,500 per annum. The answer consisted of a general denial and a counterclaim for $600 for time lost.

Eeeoe to review a judgment of the circuit court for Columbia county: B. G-. Siebeokee, Circuit Judge. Plaintiff was duly brought before a justice’s court on a warrant issued on a sworn complaint charging him with violating the statutes in regard to the sale of intoxicating liquor. Pie pleaded not guilty to the complaint. An adjournment of the cause was then granted for eight days on his application.

order of the superior court of Milwaukee county: R. N. Austin, Judge. This action was commenced in the superior court of Milwaukee county to recover damages for the wrongful act of the defendant which caused the death of plaintiff’s intestate. Upon the trial the defendant objected to the admission of any evidence under the complaint, on the ground that it failed to state facts sufficient to constitute a cause of action.

E. Sutheelaud, Judge. Mandamus to compel the commissioners of public works of the city of Milwaukee to issue to the relator a license as a plumber. From a judgment in favor of the relator the defendants appeal.

E. Shtheelaud, Judge. They argued, inter alia, that there was no proof of actual fraud, which was the ground for relief alleged in the bill. Fraud must be proved, and is never to be presumed. Cooper v. Reill/y, 90 Wis. 421. In this case the existence of positive fraud is strongly negar tived by the testimony of defendants, which is undisputed. Conger v. JDmgman, 98 Wis. 417; Bwrnham v. Norton, 100 id. 8.

Appeals from judgments of the circuit court for Winnebago county: Geo. W. Buenell, Circuit Judge. In the month of February, 1895, and for a long time prior thereto, the firm of W. T. Bickards & Co. was engaged in the business of banking, and the purchase and salé of commercial paper and securities, at Chicago, Illinois.

<p>Abpeal from a judgment of the circuit court for Sheboy-gan county: N. S. Gilson, Circuit Judge.</p> <p>The plaintiff city filed a claim with the county board of /Sheboygan county for $232.50 for medicine, nursing, and board furnished to one Herman Oestereich, a nonresident pauper, between the 4th day of September, 1896, and the 1st day of November, 1897. The claim was disallowed, and the city appealed to the circuit court.</p> <p>After the trial in the circuit court, without jury, the court found that on September 4,1896, Herman Oestereich, an unmarried adult, was injured by a railroad train at the village of Kiel, Manitowoc county, rendering amputation of the 'right leg necessary, and that on the same day he was brought to the city of Plymouth in imminent need of surgical attention to save his life, and then became a public (jharge, being entirely without money or property; that the proper authorities of the city took immediate charge of said pauper, and furnished him with necessary surgical and medical attention, nursing, clothing, etc., between September 4,1896, and November 1, 1897, amounting to $232.50, of which amount the city has actually allowed and paid $78.50, and allowed upon condition $154, which last sum has not been paid; that the total amount allowed and paid and the amount conditionally allowed are just, necessary, and reasonable charges; that said pauper had no legal settlement in the plaintiff city, but was a poor person in need of immediate relief; that the town system of caring for the poor was in force in the defendant county at the time, the distinction between the town and county poor not having been abolished, and the county not having provided for the care of the county poor in the first instance at the expense of the county; that no notice of the-fact that said pauper was being relieved by the plaintiff city was served on the clerk of the county within ten days from the 4th of September, 1896, or at any other time; that the-city duly presented its account to the county board of supervisors, and that the county board disallowed the same on the ground that the pauper had a legal settlement in the plaintiff city.</p> <p>As conclusions of law the court found that the notice required by the statute (E. S. 1878, sec. 1512, as amended by ch. 216, Laws of 1895) to be served within ten days, to the' effect that a pauper was being relieved bjr the city, was a condition precedent to the right to recover such expenses from the county, and that the disallowance of the claim by the county board on the ground that the pauper had a legal settlement in the city was not a waiver of the notice.</p> <p>No exceptions were preserved to these findings, and judgment for the defendant was rendered thereon, and the plaintiff appeals.</p>

<p>Appeal from a judgment of the circuit court for Sheboy-gan county: N. S. Gilson, Circuit Judge.</p> <p>Action of ejectment to recover homestead and dower interests claimed by plaintiff under the following circumstances: On the 16th day of March, 1893, at the suit of "William Gal-lager, then husband of the plaintiff, a judgment of divorce from bed and board between the parties was duly rendered and a final division of their property was decreed as provided by law. Part of such property consisted of a homestead occupied by the parties, and that was decreed to the husband, though plaintiff continued to occupy it till' she was dispossessed thereof as hereafter stated. April 15, 1895, the divorced husband conveyed the homestead and some other lands decreed to him as aforesaid to the defendant 'William J. Gallager, and thereafter, claiming title under such conveyance, William J. Gallager excluded plaintiff from the homestead and thereafter denied that she had any right, title, or interest therein. March 8, 1897, the divorced husband died, and subsequently, upon William J. Gallager refusing to recognize plaintiff as having any homestead or dower interest in the property conveyed to him as aforesaid, this action was brought to recover both such interests on the theory that they were not affected by the. judgment of divorce. The facts as stated were undisputed on the trial, and as a conclusion of law therefrom the trial court decided that the judgment of divorce and division of property of the parties ended their relations in regard thereto, and rendered judgment in favor of the defendants accordingly, from which plaintiff appealed.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: O. B. WyhaN, Circuit Judge.</p> <p>The case sufficiently appears in the opinion.</p> <p>argued, among other things, that the relator not showing that he has been injured by any defect in the proceedings, the assessment would not be set aside on certiorari at his instance. State ex- rel. Smith v. Cooper, 59 Wis. 666; State ex rel. Mtmitowoo v. County Clerk of Manito-woc Co. 59 id. 15; RuÜa/nd v. Gomm’rs of Worcester Co. 20 Pick. 79, 80. By delay in suing out his writ the relator must be deemed to have waived any such defects. Kimball v. Homcm, 74 Mich. 699; Rents v. Detroit, 48 id. 544; State v. JEssex Public Road Board, 37 N. J. Law, 335; State ex rel. Dalrymple v. MUwaaokee Co. 58 Wis. 12.</p> <p>They argued that the appellants were not the real parties in interest and could not appeal. McGregor v. Pearson, 51 Wis. 122; Herndon v. Bock, 97 id. 548; McCarty v. Ashland Co. 61 id. 1; State ex rel. Kempster v. Common Council, 90 id. 487. The judgment for costs against the city, being for less than $100, did not give it the right to appeal without the certificate of the judge. The validity of the acts of the board of public works depends upon their complying strictly, step by step, with the provisions of the charter. Kneeland v. Milwcmkee, 18 Wis. 417; Gilman v. Mihoaukee, 61 id. 588; Dieckmmm v. Sheboygan Co. 89 id. 570.</p>

<p> Evidence: Credibility of witnesses: Relevancy: Account books: Burden of proof: Instructions to jury: Costs on appeal: Briefs. </p> <p>1. In a case involving the credibility and business habits of a defendant testifying as a witness, where he has been permitted to testify that on the day of the transaction in question he was sober and had not drunk anything when it took place, but might have been under the influence of liquor later in tire day, evidence is admissible in rebuttal, to show that during the month in question he habitually used intoxicating liquors, since such use naturally tends to impair his mental faculties, including the memory, and may affect his business capacity or his credibility.</p> <p>2. The exclusion of evidence that during the same season in which the transaction in suit took place the plaintiffs were associated in business with other parties, or of other matters having no connection with the transaction in question, is not error.</p> <p>3. In an action against a bank to recover a balance due from it on account, which it alleges has been paid, entries in the books of the bank of moneys received and paid out on the day of such alleged payment are admissible in evidence only so far as they show transactions with the plaintiffs.</p> <p>4. In an action for a balance due on account the burden of proving payment is upon the defendant alleging it.</p> <p>5. In an action to recover a balance due on account which the defendant claims to have paid, it is not error to charge the jury that they must decide the issue according to the weight of evidence; that it is not necessary that they be convinced beyond a reasonable doubt.</p> <p>6. It is not error for the court to refuse to invade the province of the jury by charging them as to the particular weight to be attached to certain testimony and the presumptions arising from certain conduct of the parties.</p> <p>7. Under Supreme Court Rule IX, costs will not he allowed a party for printing a brief which fails to point out and correct the errors in. the brief of the adverse pirty, and does not state the facts and conclusions which the evidence tends to prove.</p>

M. Webb, Circuit Judge. In 1893 the plaintiff and Aschinger Bros, entered into an agreement by which the former was to advance certain sums of money to pay labor, etc., in the manufacture of shingles at the Aschinger sawmill. The shingles were to be delivered at a station on the railroad, called Split Bock, as ordered by plaintiff, and he was to account for them at certain agreed prices, and give the firm credit on advances so made.

<p> Railroads: Killing of animals: Notice of claim: Oondition precedent. </p> <p>The manifest purpose of the provision of sec. 1816b, Stats. 1898, that no action against a railroad company for stock killed or injured shall be maintained unless, within one year after the event causing the damage, written notice of the claim is given to the corporation, was to give such corporation an opportunity to investigate the matter before being sued, and such notice must be deemed a condition precedent to the suit. A notice not served until after a suit had been prosecuted to judgment in a justice’s court and appealed from by the company, though within one year, is not a compliance with the statute.</p>

<p>Appeal from a judgment of the circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.</p> <p>This was an action by the plaintiff, as executrix of the will of Horton Cottrell, deceased, upon two written guaranties of collection. On April 13,1889, the Hew London Furniture Company, a corporation, made two promissory notes, one for $2,000 and one for $2,500, payable to the order of Horton Cottrell, with interest at seven per cent, per annum; the first named being payable.Tune 1, 1892, and the second June 1, 1894. These notes were secured by a mortgage upon a manufacturing plant owned by the mortgagor, and. contained a stipulation that in case of the nonpayment of interest the whole sum of principal and interest should become due and payable at the option of the payee. Upon the back of these notes the following guaranty was written: “In consideration that the within-named payee will give credit to the within-named maker upon the within note, and for the purpose of obtaining such credit, we, the undersigned stockholders of said corporate maker, hereby guarantee the collection of the within note, with all costs.”' This guaranty was signed by all of the defendants prior to the delivery of the notes to Cottrell, and the notes were received by Cottrell upon the faith and credit of the guaranty. It appears that the defendants who signed the guaranty were all stockholders in the New London Furniture Company.</p> <p>This action was commenced April 28, 1897; and the complaint alleges, among other things, that the mortgage security has been entirely exhausted, and that personal judgment has been obtained against the corporation, and execution thereon was returned unsatisfied January 18,1897, and that .all remedies against the corporation have been exhausted, .and that there is still due upon the notes $6,276.99, with interest." It is further alleged in the complaint that the corporation at the time of the maturity of the notes was, and ever since has been, wholly insolvent, and unable to pay the same or any part thereof. The defendants answered separately, but their answers are practically identical. They admit the execution and delivery of the notes, but allege that they have been discharged of their liability by lack of diligence in the prosecution of legal remedies against the corporation. They further admit the hopeless insolvency of the corporation since October, 1893.</p> <p>Upon the trial there was practically no dispute in the facts. . It appeared that the first payment of interest was made on or about June 1, 1890, but that the interest due June 1, 1891, was not paid, nor was any pajnnent thereafter made by tbe corporation, although, it continued to carry on business; and the time when it ceased to do business does not appear. Cottrell did not exercise his option to declare the principal due, nor did he commence any action, until September 19, 1893, when he declared the whole sum due and commenced an action of foreclosure, making the defendants in this action parties, and demanding a personal judgment against them for deficiency. It further appears that Cottrell held a prior mortgage upon the entire plant of $1,500, and at the time of the commencement of the foreclosure action just named this prior mortgage was in process of foreclosure and ready for judgment. On the 7th of October, 1S93, judgment of foreclosure was rendered upon the prior mortgage; and on the 18th of January, 1895, sale was had of the premises, resulting in a surplus of $359.60, which sum was paid into court, and upon the 27th of March, 1895, was paid oyer to the plaintiff to apply upon the second mortgage. Judgment of foreclosure and sale upon the second mortgage was rendered November 16,1893, which judgment contained a provision for a judgment for deficiencj»- against these defendants in case the premises were insufficient to pay the mortgage. On the 18th of June, 1895, judgment for deficiency was rendered against the corporation and against all the defendants for the amount of the second mortgage, less the sum of $359.60, which had been realized as a surplus upon the first mortgage sale. November 11, 1895, these defendants appealed from the judgment for deficiency, and from the provision in the original judgment which authorized any judgment for deficiency against them; and both judgments were reversed by this court October 13, 1896.' Gotbrell v. New London F. Go. 94 "Wis. 176. In December, 1896, an execution was issued against the corporation upon the judgment for deficiency, which was returned unsatisfied January 18, 1897. The evidence further tended to show that during the year 1892, and perhaps early in 1893, Cottrell’s agent demanded payment of the amounts due, and that the defendants Demmimg, Wright, and Knarp-stevn,'yrho were the managing officers of the corporation, requested the plaintiff not to foreclose, but to wait, whereupon the plaintiff did wait until September, 1893, before commencing the foreclosure action.</p> <p>These facts appearing on the plaintiff’s own showing, the defendants moved for a nonsuit, which motion was granted; and judgment was rendered dismissing the action without prejudice, from which the plaintiff appeals.</p> <p>They argued, among other things, that the plaintiff had not been guilty of laches, but had exhausted her legal remedies for the collection of the indebtedness represented by the notes without avail. A mere failure to exercise her option to declare the principal sum due on default in payment of interest would not operate to discharge the guarantors. Even a failure to sue promptly for each instalment of unpaid interest could do no more than discharge them from liability for such interest. Tern, Eych v. Tidbits, 1 Caines, 427; Thomas v. Woods, 4 Cow. 173; Northern Ins. Go. v. Wright, 76 FT. T. 445. Delay to prosecute will not discharge a guarantor unless it has continued for a long time. Day v. Elmore, 4 Wis. 190; McFarlane.v. Mihocmkee, 51 id. 691; Hoover v. McCormick, 84 id. 215; Raymond v. Sheboygan, 76 id. 335. The guarantors must have known that the notes were unpaid and consented to the delay of prosecution, since the debt was their own in a corporate capacity. The plaintiff was not bound to sue at law. The remedy by foreclosure of the mortgage and judgment for deficiency is a usual, legal remedy, and is full, adequate, and complete. Dyer v. Gibson, 16 Wis. 557 y Borden v. Gilbert, 13 id. 670. When the last note became due the maker was hopelessly insolvent. The mortgage security was apparently ample to satisfy all the debts. If the plaintiff had. failed to exhaust that, the guarantors would have been discharged. Gott/rell v. New London F. Co. 94 Wis. 176.</p>

<p>Appeal from a judgment of the circuit court for Wau-shara county: John Goodland, Judge.</p> <p>Action commenced in justice’s court to recover on a promissory note. The summons was served by a person appointed for that purpose, under sec. 3608, E. S. 1878, but the necessity for the appointment was not first established by affidavit filed with the justice as required by such section. Two days after the first service, and a sufficient time before the return day of the summons, a second service was made by an officer authorized by law. Defendant appeared generally, but whether in response to the first or the second service is not shown. After the first service and before the delivery of the summons to the officer to be served a second time, the statute of limitations ran on the note. Defendant pleaded the statute of limitations, and on the trial in the circuit court, to which the action was carried by appeal, recovered on such plea, the theory of the court being that the first service was void and did not interrupt the running of the statute of limitations. Plaintiff appealed.</p>

<p> Landlord and tenant: Lease: Change of terms: Appeal: Damages for delay. </p> <p>1. A landlord who accepts from his tenant, whose lease lias several years to run, a check for a sum less than the monthly rent stipu- . lated in the lease, upon the face of which is written, “In full for rent for saloon property for month of July, 1896, under agreement made July 7, 1896, that in future tenancy shall be from month to month at §90 per month,” and retains the same with full knowledge of what it contains, is bound by it as a valid agreement changing the lease, both as to the nature of the tenancy and the amount of rent.</p> <p>2. The discretion vested in the sujireme court by sec. 2951, Stats. 1898, to give damages to the defendant in error or respondent for delay, will not be exercised unless the writ of error or appeal was clearly frivolous and taken in bad faith.</p>

<p> Corporations: Insolvency: Preference to officers: Fraudulent conveyance. </p> <p>An officer of a corporation which was never in a condition to pay all its debts in full cannot lawfully obtain a preference as a creditor over the general creditors, by giving to his wife a mortgage on the property of the corporation.</p>

<p> Corporations: Paid-up stocle: Fraud by promoters: Evidence: Representations as to financial condition: Hearsay: Instructions to jury. </p> <p>1. If stockholders, honestly and in good faith, put property instead of money into a corporation and receive stock therefor, the fact that such property may have been overvalued will not prevent the stock issued from being full-paid stock, even as against a creditor of such corporation; but if the property is fraudulently received at a valuation substantially in excess of its real value, for the purpose of creating apparently full-paid stock and imposing upon the business public, then the stock is not full paid as to creditors.</p> <p>2. In an action to recover money loaned to .a corporation before the same became due, on the ground that the loan was procured by false representations that the stock of such corporation was paid up and it was doing a good business, it appeared that the promoters of the corporation had purchased property for §20,000, paying-nothing down, but giving a mortgage for the entire price, and had conveyed the same to the corporation in consideration of its issuing to them paid-up stock for §60,000 and assuming the mortgage. Held, that it was a question for the jury Vhether the stock so issued was full-paid stock, and a nonsuit was properly denied.</p> <p>8. In an action by a bank to recover money loaned to a corporation, in part on the faith of statements made by the latter to commercial agencies as to its financial condition, such statements and the reports of such agencies embodying them are admissible in evidence.</p> <p>4. Evidence of like statements made by the corporation, not to the directors of the bank, but to its cashier, and by him reported to them when the loan was applied for, is also admissible to show that they relied upon them, and is not objectionable as being hearsay.</p> <p>6. Upon an issue as to the truth of a statement that a corporation was doing well and making money in 1895 and 1896, evidence that it made a voluntary assignment for the benefit of its creditors early in 1897, is admissible in connection with evidence that there had been no sudden change in its financial condition.</p> <p>6. To refuse to give an instruction asked for, the substance of which had been fully embodied in the general charge, is not error.</p> <p>7. A charge, which is correct in itself so far as it goes, cannot be held erroneous because of the omission of an instruction upon a point which might properly have been the subject of an instruction, but in relation to which none was asked.</p>

<p> Public water supply: Warranty of purity: Liability of water company: Negligence or fraud: Contributory negligence: Knowledge of impurity: Presumption: Evidence: Expert testimony. </p> <p>1. A waterworks company, operating under a franchise from, and contract with, a municipal corporation, in distributing water for public and domestic use, is not responsible as an implied warrantor of the purity of the water distributed by it.</p> <p>2. If a waterworks corporation knowingly supply to its customers water contaminated with impurities so as to render it dangerous for domestic use, under such circumstances that its customers are liable to use the water in ignorance of the danger, it owes to such customers the duty of disclosing such danger, and a failure in that regard renders the corporation liable in damages to a customer injured by the use of such water without contributory fault on his part amounting to a want of ordinary care, and the liability may be placed on the ground of either actionable negligence or fraud.</p> <p>3. In the circumstances stated in the foregoing, whether the liability be placed on the ground of negligence or fraud, knowledge or reasonable means of knowledge of the condition of the water, on the part of the injured person, will preclude a recovery.</p> <p>4 In an action for damages, attributed to the negligence of another, evidence of precautions taken to prevent injuries of like character after the happening of the one complained of, is inadmissible, and likewise is evidence as to the situation after the injury, unless preceded b j prima facie proof that no change has taken place in the meantime.</p> <p>5. The admission in evidence of newspaper publications, and proceedings of pirblic bodies, consisting in the main of declarations and statements irrelevant to the issue, and manifestly tending to inflame and prejudice the minds of the jury, though containing some evidence which, standing alone, may be properly received, is prejudicial error.</p> <p>6. Opinion evidence based on disputed evidentiary facts, not the subject of scientific investigation, is not admissible except in response to properly framed hypothetical questions.</p> <p>7. Where the only point as to which opinion evidence is directed is properly a matter of scientific investigation, an expert in that line may testify directly thereto from personal investigation.</p> <p>8. If a water company’s source of supply be contaminated with sewage for a long period of time, causing epidemics of typhoid fever annually in the community for several years, and the facts in that regard be there notorious and a matter of common knowledge, the presumption is that members of such community of ordinary intelligence have notice of that situation, and, in the absence of evidence to the contrary, that presumption will prevail and preclude a recovery by a person injured by the use of such water, on the ground of his contributory fault.</p> <p>[Syllabus by Marshall, J.]</p>

<p>Appeal from a judgment of the circuit court for Portage county: Chas. M. "Webb, Circuit Judge.</p>

<p>CeetioeaRi to review proceedings bad before E. W. Helhs, Judge of the Circuit Court for St. Croix county.</p> <p>George A. Wells and Thomas F. Mulrooney were imprisoned under an execution against the body, and brought Tidbem corpus proceedings before Hon. E. W, Helms, circuit judge, and were discharged from the imprisonment. The execution was issued upon a judgment in fayor of the relator in this proceeding, and upon the discharge of Wells and Mul-rooney the relator sued out a writ of certiorari from this, court to review the said habeas corpus proceedings.</p> <p>Upon the return of the writ it appeared that the judgment on which the execution was based wras rendered October 6, 1896, in favor of the relator, for $1,166.68 damages and $63.37 costs. The judgment was rendered by default. The complaint contained two causes of action, and, omitting the title, read as follows:</p> <p>“ (1) That the plaintiff is a corporation duly incorporated under the laws of this state, and that the defendants were, at the time of entering into the contract hereinafter mentioned, copartners. That on the 20th day of February, 1892,. at said county of St. Croix, the plaintiff rented to the defendants, and the defendants hired from the plaintiff, those certain grain warehouses more particularly described in the articles of covenant hereto annexed and markedc Exhibit A,’ together with the scales, trucks, scoops, and other appurtenances belonging to said warehouses, for the monthly rental-of thirty-five and dollars, payable monthly in advance on. the 1st day of each month. That on said 20th day of February, 1892, the defendants entered into a covenant with the-plaintiff, under their hands and seals, a copy of which is annexed hereto and made a part of this complaint, marked ‘Exhibit A.’ That said Wells & Mulrooney in and by said agreement agreed to quit and deliver up the possession of said premises to the plaintiff on the 1st day of September,. A. D. 1893; and it was further agreed in and by said covenant that if said Wells & Mulrooney desired the privileges, of continuing in the possession of said property any longer than September 1, 1893, they should give notice in writing-to said plaintiff of their election so to do, thirty days in advance of the time that the lease would otherwise terminate. That the notice of election to continue said agreement in force for one year from September 1,1893, was not given as required by the terms of said covenant; but, on the contrary, said Wells &’ Mulrooney notified said plaintiff in August, 1893, that they would not so continue the lease and the hiring after said 1st day of September, 1893, and they gave-notice to the plaintiff of their intention to quit the premises- •and deliver the possession.'’ thereof to said plaintiff on said 1st day of September, 1893. That, unless the buildings mentioned in said ‘ Exhibit A’ could be used during the fall months of 1893 for the purposes of grain warehouses, they would be practically of no value to the plaintiff after that .time, until the fall of 1894, all of which was well known to the defendants. That said defendants did not deliver up the possession thereof at the time specified in their notice, but, on the contrary, unlawfully withheld the possession thereof, thus depriving the plaintiff of its rights herein, either of renting or of hiring said warehouses to others, or of using them itself; and said defendants continued unlawfully to hold the possession thereof, except one house, until removed therefrom by the order of the circuit court of St. Croix county in July, 1894, by reason of which the plaintiff was put to great expense, bother, vexation, and delay, and deprived of one year’s rental of said warehouses. That the defendants have not paid rent, nor any part thereofj since August, 1893, and that whereby, by force of the statutes (particular refer•ence being made to sec. 2185, R. S.), the defendants have become, and are now, indebted to the plaintiff in double the value of rental, to wit, in the sum of $860.</p> <p>“ And for a second and separate cause of action against said defendants the plaintiff further alleges: That on the 20th day of February, 1892, the plaintiff leased of the defendants, and the defendants hired of the plaintiff, certain ■articles of property connected with certain grain warehouses, such as scales, trucks, scoops, and such like articles as are kept in and about grain warehouses, and which articles are mentioned in ‘Exhibit A,’ hereto annexed, and also ‘Exhibit B,’ hereto annexed, both of which exhibits are hereby made a part of this complaint. That said articles were the property of the plaintiff. That by the terms of the agreement the defendants agreed to deliver up said articles of property September 1,1893, but having failed and neglected so to do, but on tbe contrary, have wrongfully converted said goods to their use, as plaintiff is informed and believes, to the damage'of the plaintiff in the sum of $125.35.”</p> <p>Attached to the complaint were two exhibits, being a copy of the lease and a list of certain personal property, neither of which is deemed necessary to be printed.</p> <p>To the point that the liability to double rent is penal in its nature, at least to half the amount, and the action is properly in tort, they cited Graham v. O., If. da St. P. R. Oo. 53 Wis. 481; Smith v. O. da N.W. II. Oo. 49 id. 448; Allicmee Elevator Oo. v. Wells, 93 id. 5; Regan v. FoscUelc, 43 N. T. Supp. 1102; 2 Taylor, Landlord & T. (8th ed.), § 529; Johnstone v. Hudlestone, 4 Barn. & 0. 922.</p>

<p> Garnishment: Lien: Transfer of property by garnishee: Judgment far garnishee: Stay of proceedings pending appeal: Money judgment against garnishee. </p> <p>1. The service of garnishee process creates an equitable lien upon property of the principal defendant in the hands of the garnishee, entitling the plaintiff to hold such property for the satisfaction of his claim against such defendant and to follow it into the hands of those who may purchase the same of the garnishee with notice of the situation, unless the lien he waived by plaintiff’s conduct.</p> <p>2. The protection of the plaintiff against danger of the garnishee’s placing the property beyond the reach of the court, is the right to a personal judgment against the garnishee defendant, or an injunction to restrain the garnishee from in any way parting with the property pending the proceedings, and the right to follow the property as against persons deriving title thereto from the garnishee with notice of the equitable lien.</p> <p>3. Á judgment in favor of the garnishee extinguishes the equitable , lien created by the service of the garnishee process, and protects the garnishee and those dealing with him pending an appeal from the judgment, unless the lien be continued according to law.</p> <p>4 If an equitable lien in garnishee proceedings be extinguished by judgment in favor of the garnishee, and the lien be not continued pending an appeal from the judgment, and the garnishee part with the property while discharged of such lien, a reversal of the. judgment on appeal does not revive the lien or entitle plaintiff to a judgment against the garnishee either for the property or the. value thereof.</p> <p>5. If plaintiff, in a garnishee action, elect to take a mere money judgment against the garnishee, such election operates to discharge the property from the equitable lien thereon.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeal from a judgment of the circuit court for Dunn county: E. ~W. Helms, Circuit Judge.</p> <p>The circumstances out of which the cause of action set out in the complaint arose are the same as those mentioned in Ooni'oyv. G, St. P., If. & O. B. Go. 96 Wis. 243; Chicago, St. P., II. <& O. R. Go. v. Myers, 80 Fed. Rep. 361; and Chicago, St. P., If. (& O. R. Go. v. Relliioith, 83 Fed. Rep. 43Y. Early in the morning of September 15,1894, a western-bound freight train on defendant’s road was wrecked at a point in St. Croix county between Hammond and Roberts stations. Several cars (one loaded with coke, two containing naphtha in metal tanks, one containing kerosene oil in a metal tank) and the caboose became separated from the rest of the train and derailed. The forward car, containing naphtha, caught fire and exploded soon after the wreck, setting fire to the remaining cars. The fire continued to burn for some hours, and until about 11 o’clock, when the tank .containing kerosene oil exploded, and threw the burning oil on plaintiff’s intestate, causing injuries from which he died. '</p> <p>On the morning of that day, Mr. Rudiger, the decedent, purchased a ticket at St. Paul, and boarded one of defendant’s passenger trains, bound for Menomonie, Wisconsin. The train arrived at the scene of the wreck about 10 o’clock, and was stopped some little distance west of the burning cars. A gap was opened in the right-of-way fence on the south side, some 258 feet west of the burning tank; and the passengers, together with the mail, express matter, and baggage, were transferred through the fields, south, to another gap in the fence, 256 feet east of the tank. The mail matter was deposited on the right of way, near the track, north and a few feet westerly of the west post of the east gap, and the express and baggage extended easterly for a distance of some forty feet or more. Mr. Rudiger followed the other passengers to the east gap. No specific directions were given the passengers as to where they should stay. The burning tank attracted considerable attention, and some of the passengers went westerly on the right of way, past the gap, toward the car. The fire was burning with great violence, producing a loud, roaring noise, with flames shooting up. The injury' complained of occurred about an hour after the passenger train arrived. At the time of the explosion of the oil tank which caused the injuries to Mr. Rudiger, the great body of the passengers were standing around and easterly of the east gap. The plaintiff insists that at the time of the explosion Mr. Rudiger was standing near the baggage, at a point a little east of the west post of the gap; that when the tank exploded the burning oil was thrown upon him, inflicting injuries which occasioned his death. The location of Eudiger was denied by defendant, and its testimony tended to show that he was some distance west of the gap, towards the tank, on the right of way.</p> <p>A special verdict was taken, in which the jury found, in substance, that the defendant was guilty of a want of ordinary care in selecting the place it did for its temporary station, which was the proximate cause of the injuries to Eudiger; that Eudiger was at the temporary station at the time he received his injuries, and not west of the gap; that he was not guilty of any want of ordinary care which contributed to his injuries; and that the plaintiff’s loss was $4,000. A motion to set aside the verdict was denied, and judgment entered thereon. The defendant appeals.- Defendant assigns error as to the admission of testimony, remarks of counsel during the trial, imperfections in the verdict submitted, and excessive damages, all of which are noticed in the opinion, and do not require statement.</p>

<p>Appeals from orders of the circuit court for Dunn county: E. "W". Helms, Circuit Judge.</p> <p>They contended, inter alia, that sec. 3, ch. 334, Laws of 1897, did not impair the obligation of contracts, since it injured nobody, but left to parties an adequate remedy. Von Baumbach v. Bade, 9 Wis. 559; Starkweather v. Hawes, 10 id. 125; State ■ex rel. Soutter' v. Common Council, 15 id. 30; State ex rel. Knox v. HundTiausen, 23 id. 508, 24 id. 196; Second Ward Sav. Hank v. Schranck, 9Y id. 250; Tennessee v. Sneed, 96 U. S. 69; Ba/rnitz v. Beverly, 163 id. 118. An attachment is a remedy given by law and not by contract, and may be taken away by law. Bigelow v. Pritoha/rd, 21 Pick. 169; Kilbourn v. Hyman, 6 Met. 299; Ward v. Proctor, Y id. 318; Grant v. Bymcrn, 4 id. 4Y0; Wendell v. Zebon, 30 Minn. 234; Bor/ v. Madden, 9 Colo. App.'464; Wat. Bank v. Riethmcwm, Y9 Fed. Eep. 582; Waples, Attachment (1st ed.), 24; 1 L. E. A. 358, note; Freiberg v. Singer, 90 "Wis. 608.</p>

Eeeoe to review a judgment of the circuit court for St. Croix county: James O’ETeill, Judge. This was an action upon a promissory note, commenced in justice’s court. In the circuit’ court the action was tried without a jury.

G-. Siebecker, Circuit Judge. The service of the summons was by publication. Defendant moved the court for an order setting aside the service, and' appeared in the action specially for that purpose. The motion was denied, and an order was entered accordingly, from which defendant appealed.

<p>Appeal from an order of the circuit court for Dane county: R. G. Siebeckbr, Circuit Judge.</p> <p>The appeal is from, an order refusing to grant a change of venue.</p>

the circuit court for Dane county: E. G. Siebeokee, Circuit Judge. This action was brought to recover damages alleged to have been sustained by the plaintiff by reason of the insufficiency or ivant of repair of a certain crosswalk on the south side of State street at its intersection with Fairchild street,_ in the city of Madison.

<p>Appeal from a judgment of the circuit court for. Sauk county: John E. Bennett, Judge.</p>

<p> Appealable order. </p> <p>An order, made upon a motion supported by affidavits and a verified answer, which opens a default and allows the defendant to plead, but refuses to order a reference of the questions of fact arising on such motion, is not a final order nor does it prevent a judgment from which an appeal might be taken, and is therefore not appeal-able under sec. 3069, Stats. 1898.</p>

G. Siebeckee, Circuit Judge. Action to recover $30 alleged to be due as a balance for dirt sold to the defendant 'to be taken by him from plaintiff’s lot, $50 for damages, for failure to grado and level the lot according to contract, and $118 damages for not removing the dirt within the time agreed upon, whereby loss was alleged to have accrued to plaintiff from being unable to construct a greenhouse thereon as contemplated, and start the enterprise by operating the same.

<p> Insolvency: Receivers. </p> <p>In order to make up the amount of $200 of debts or claims against an insolvent debtor, required by seo. S, ch. 334, Laws of 1897, to give to two or more of his creditors the right to petition for the appointment of a receiver for such debtor within thirty days after he has done any act or made any conveyance whereby any creditor shall obtain a preference, costs which were incurred in suits prior to such act of insolvency may be included, but not those incurred afterward, though within such thirty days.</p>

<p>ERROR to review a judgment of the circuit court for Clark county: W. F. Bailey, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for 'W’inne-bago county: Geo. W. Bureell, Circuit Judge.</p> <p>They argued, among other things, that the defendants having failed to rescind the contract or to ask that the furnace be replaced by another, and having accepted and used the one furnished, their measure of damages was limited to the difference between the value of the property, if as represented, and its value as it actually is. Herman v. Gray, 79 Wis. 189; Warder v. Fisher, 48 id. 338-342.</p>

B. Wyman, Circuit Judge. Action to recover compensation for tbe death of Peter C. Christianson, alleged to have been caused by negligence of defendant, in that it set the deceased to work at a rip'saw, which, with its connections, was so improperly guarded and out of repair as to render it unsafe and unsuitable for such work.

<p>Appeal from a judgment of the circuit court for St. Croix county: E. W. Helms, Circuit Judge.</p> <p>argued, among other things, that the court erred in refusing to receive in evidence the complaint in the suit pending in Minnesota between these parties. Plaintiff testified that he employed the attorney to commence that suit for this injury, and, his statément to the contrary notwithstanding, it is to be presumed that he stated to his attorney the facts on which he relied as his cause of action. Lindner v. St. Paul F. dt M. Ins. Go. 93 Wis. 526, 530, 531; Bliss v. Nichols, 12 Allen, 443,445; Gurrier v. Silloway, 1 id. 19, 20; Gord-on v. Pa/rmelee, 2 id. 212, 213, 215; Bogle v. Chase, 117 Mass. 273; Ayres v. Hartford F. Ins. Go. 17 Iowa, 176, 187, 188; Brown v. Jewett, 120 Mass. 215.</p> <p>inter alia, that, inasmuch as no motion for a nonsuit or to direct a verdict was made in the trial court, and there was evidence for the plaintiff sufficient to sustain the verdict, the refusal of the trial court to set it aside cannot be reviewed on appeal. B'anlc of Commerce v. Ross, 91 Wis. 323. It was not error to refuse to admit in evidence against the plaintiff his complaint in the Minnesota suit, not signed or verified by himself. If competent at all, it only amounted to an oral admission. It was incompetent without evidence to show how far the attorney was instructed by the plaintiff. Dennie v. Williams, 135 Mass. 28; Delaware Go. Oomm’rs v. Diébold 8. & L. Go. 133 U. S. 413; Gooh v. Barr, 44 N. Y. 158; Vogel v. D. M. Osborne cfi Co. 32 Minn. 161; Combs v. Hodge, 21 How. 391; Doper. AUis, 115 U. S. 363; Baldwin v. Gregg, 13 Met. 253; Starleweather v. Kittle, 11 Wend. 20; Boileau v. Rutlin, 2 Exch. 665. The court had a right to refuse to submit particular questions for a special verdict where no request had been made for a ■special verdict. Fenelonv. Butts, 53 Wis. 344; MeDougall v. Ashlcmd 8. D. Go. 91 id. 382. The special verdict submitted by the court disposes of all the issuable facts. McCoy v. Milwa/uhee 8t. B. Go. 88 Wis. 56.,</p>

<p>Appeal from a judgment of the circuit court for Sauk county: R. G. Siebecxee, Circuit Judge.</p> <p>argued, among other things, that the circumstances were such as to clearly make it a question for the jury whether the defendant’s failure to give any signal of the approach of the train was negligence. Heath v. Stewart, 90 Wis. 418; Winstanley v. O., M. & St. P. R. Go. J2 id. 3J5; Leitch v. O. H. W. R. Go. 93 id. J9. The railroad company, by its acquiescence in the public use of this crossing, took upon itself the duty to exercise reasonable care to protect those crossing from injury. 8 Am. & Eng. Ency. of Law (2d ed.), 412, 424; Bishop v. O., M. d St. P. P. Go. 4 N. Dak. 536; Johnson v. Great Northern P. Go. 75 N. W. Rep. (N. D.), 250; Chicago, B. d Q. P. Go. v. PoUa/rd, 53 Neb. 730. If there is any room for argument as to what facts are established, or if unbiased minds may differ, the question is one for the jury. Valin v. M. & N. P. Go. 82 Wis. 1; Morrison v. Madison, 96 id. 452; Grites v. New Richmond, 98 id. 55.</p>

<p> Municipal corporations: Disposal of surface waters. </p> <p>1. The stoppage of surface water by the grading up of a street, causing property to be overflowed, does not render the city liable in damages.</p> <p>2. The arrangement of gutters, ditches, etc., by a city in the course of grading and adjusting its streets, whereby the course of surface water is changed and its flow in certain directions or at a certain place is increased, is not actionable.</p> <p>3. A city can no more be liable for the result of two innocent and lawful acts in combination than for the separate consequence of either of them.</p>

<p> Municipal corporations: Ice and snow on sidewalk: Personal injury: Court and jury. </p> <p>1. An accumulation of snow and ice on a sidewalk in such a ridgy and uneven condition as to constitute an obstruction to public travel, renders it legally defective; but otherwise, a walk merely covered evenly with tramped snow two inches deep,, then made rough by being traveled on when the snow is soft and sloppy, and then frozen hard, leaving the surface indented with footprints.</p> <p>2. Where there is no direct evidence as to how a personal injury occurred, or circumstances from which the. reasonable inferences! preponderate in favor of a theory rendering the injury aotionablel rather than in favor of a theory not actionable, the case should not go to the jury for a verdict, but the court should pronounce the judgment of the law on the situation by directing a verdict for defendant.</p> <p>3. Verdicts must be based on evidence, not on mere conjecture, and where actionable negligence is claimed as to some occurrence, and there is no direct evidence of how it happened, and the inferences are clearly as consistent with a theory rendering it not actionable as with a theory rendering it actionable, there is no adequate basis for a verdict in favor of the plaintiff, hence a verdict should be directed for the defendant.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeae from a judgment of the circuit court for Dane county: E. G. SiebeoKee, Circuit Judge.</p> <p>Plaintiffs were creditors of the defendant Eodby, and commenced an action against him, in which the respondent Brictson was summoned as garnishee. The' latter answered, denying liability, upon which issue was taken.</p> <p>The case was tried by the court without a jury, and findings were made substantially as follows: (1) That on October 21, 1895, and prior thereto, Eodby was the owner of a stock of dry goods, etc., at Deerfield, Wisconsin, and also certain book accounts and notes. (2) That on said date Eodby executed and delivered to Brictson a note for $14,917.60, which was secured by a chattel mortgage upon the property before mentioned. (3) That at that time Eodby owed Brict-son that sum, and that said mortgage was given to secure that sum and for no other purpose; that the mortgage was -duly filed, and on October 24,1895, Brictson took possession of the mortgaged property. (4) That there was no understanding that any portion of the proceeds of the mortgaged property should be applied to the payment of any of the other creditors of Eodby, or any agreement that it should have any other force and effect than that of a regular chattel mortgage, and it was not received with any intent to hinder, delay, or defraud any of the other creditors of Eodby. (5) That no trust or obligation arose on the part of Brictson to hold or apply any of the proceeds of said mortgaged property for the benefit of any other of Eodby’s creditors. (6) That Rodby bad other property than that included in the mortgage, mentioned in the testimony; that, at the time-the mortgage was given, nothing was said by either party about exemptions, but that, a few days after the execution of the mortgage, Rodby stated to Brictson that he would retain the implements and personal property not covered by the mortgage to the amount of $200 as exempt, and has since claimed it as such, and that neither Rodby nor his wife has asserted any claim to any portion of the property covered by said mortgage. (I) That Brictson took.possession of said property under and by virtue of his mortgage, and held the same at the time this action was commenced;, that said goods were sold in due time, and the proceeds applied upon Rodby’s indebtedness, but were insufficient to-pay the same.</p> <p>The evidence shows that the mortgage to Brictson was not signed by Rodby’s wife. It also shows that part of the consideration for the Rodby note, to secure which the mort■gage was given, was an agreement in writing by Brictson to pay five notes given by Rodby to some of his relatives, amounting in the aggregate to $1,550, besides interest. The personal property claimed by Rodby as exempt consisted of-some show cases, a safe, a cash register, a stove, and other articles of like character, worth about $200. The court’s conclusions of law were to the effect that Rodby had a right to select the same as exempt in lieu of a like amount of merchandise, and that the mortgage did not include exempt property, and that the signature of Rodby’s wife was not necessary to the validity of the mortgage; that the mortgage and the agreement by Brictson to pay the notes mentioned did not constitute an assignment for the benefit of creditors; that the mortgage was valid and lawful, and Brictson was in no manner liable as garnishee.</p> <p>Judgment was entered in favor of the garnishee, from which plaintiffs take this appeal.</p> <p>They argued, among other things, that the chattel mortgage to the garnishee was void under sec. 2313, Stats. 1898, because it included exempt property and was not signed by the mortgagor’s wife. As it included his whole stock of merchandise, it must necessarily have included stock in trade which was exempt. Below v. Bobbins, 76 Wis. 600. The uncontroverted testimony showed that nothing was said about exemptions for several days 'after the execution and delivery of the mortgage. This rendered the garnishee’s title revocable and calculated to hinder, delay, and defraud creditors, and therefore fraudulent. Hanson v. Edgar, 31 Wis. 653; Godfrey v. Thornton, 46 id. 677; Herron v. Knapp, Stout & Oo. Compamy, 72 id. 555; Kentv. Lasley,4$> id. 264; Grant v. Lewis, 14 id. 487; Sever in v. Rueekeriok, 62 id. 1; Westv. Snodgrass, 17 Ala. 549; Blakeslee v. Bossman, 43 Wis. 116; 4 Cent. L. J. 219; Biggs v. Murray, 2 Johns. Oh. 565; Ohapi/nv. Thompson, 89 N. T. 280; Burrill, Assignments (3d ed.), §§ 343, 344. The property claimed by the mortgagor as exempt was not such as he as a merchant had a right to select. Knapp v. Bartlett, 23 Wis. 68; Humphrey v. Taylor, 45 id. 251; Wicker v. Corn-stock, 52 id. 315; Boundy v. Converse, 71 id. 524. The chattel mortgage was a voluntary assignment, not executed according to law, and therefore void. Winner v. Hoyt, 66 Wis. 227.</p>

<p>Appeal from a judgment of the circuit court for Dane ■county: E. G. Siebeoeer, Circuit Judge.</p> <p>To the point that a judgment may be attacked on the ground that it was suffered for the purpose of hindering, delaying, and defrauding creditors, of whom the party making the attack is one, they cited 2 Freeman, Judgments, §§ 335, 336; Maekie v. Cairns, 5 Cow. 547; Robinson v. Davis, 11 N. J.- Eq. 302; Atliinson v. Allen, 12 Yt. 619; Downs v. Fuller, 2<Met. 135; Beeler's Heirs v. BulUtt,s Hews, 3 A. II. Marsh. 280; Clark v. Foxeroft, 6 Me. 296; Atlas Hat. Bank v. More, 152 Ill. 528; Palmer v. Ma/rtindell, 43 N. J. Eq. 90; Shellcross v. Beats, 43 N. J. Law, 111; Freydendall v. Baldwin, 103 Ill. 325; Bunn v. AM, 29 Pa. St. 387; Werner v. Zewfuss, 162 id. 360, 367, 368; Breslauer v. Ceilfuss, 65 Wis. 377.</p>

<p> Suretyship: Release by alteration of contract: Advances to building con- ' tractor: Liens: Estoppel. </p> <p>1. A surety for the performance of a contract will be released from liability by a change or alteration of such contract without his consent, only when such change is material and substantial.</p> <p>2. That the owner of a building, being constructed under a contract which provided for payment in monthly instalments, loaned small sums to the contractor in advance of the next instalment to become due, taking his due bills therefor which were paid out of such instalment, is not such a material alteration of the contract as will release the surety on the bond of the contractor for the performance of the contract, so as to permit him to acquire and enforce a lien on the building for materials furnished by him therefor.</p> <p>3. The facts that the contractor in such case asked the first advance at the suggestion of the surety, and that the latter continued to furnish materials with knowledge of said transactions, would estop him from insisting on a release.</p>

<p>Appeal from a judgment of the circuit court for Outa-gamie county: John Q-oodland, Circuit Judge.</p> <p>At the time the plaintiff sustained the injuries complained of, he was a minor, between seventeen and eighteen years of age. He was employed to work in defendant’s paper mill, and lost a portion of two of his fingers by getting1 them into a fan, located near where he was set to work. This fan revolved in a drum or cylinder, on the top of which was an opening, usually covered by wire netting. On the day of the accident it is claimed that this netting was out of repair. Plaintiff rested his hand on the top of the drum, not observing that the hole in the top was unprotected, got his fingers into the fan, and* was injured. Defendant’s negligence is alleged to consist in the failure to keep the cover . over the drum in repair, and in neglecting to warn plaintiff of the danger. After plaintiff’s testimony was in, the court directed a nonsuit. From the judgment dismissing the action this appeal is taken.</p> <p>They contended, inter aUa, that as to the plaintiff the danger was latent. He had no experience that would or did suggest to his mind that there was or should be an opening in the drum. The issues should have been submitted to the jury. Jones v. Florence M. Oo. 66 Wis. 268; Feilon v. Ma/rmette c& M.P. Oo. 75 id. 579; Fadau v. White Rimer L. Oo. 76 id. 120; Ohopin v. Badger P. Oo. 83 id. 192; Thompson v. Johnston Bros. Oo. 86 id. 576; Lv,ebke v. Berlin M. Works, 88 id. 442; Kucera v. Merrill L. Oo. 91 id. 637; WolsM v. KnappBtout c& Oa. Oompamy, 90 id. 178; Thompson v. Edward P\ Allis Go. 89 id. 523; Edatt v. F. 0. Foster L. Go. 92 id. 622.</p>

<p>Appeal from a judgment of the circuit court for Dane county: R. G. Siebecxeb, Circuit Judge.</p> <p>On April 21, 1898, one Blanche E. Palmer recovered a judgment of $5,500 in the circuit court for Dane county against the defendant Pabrióle E. Bcmnon, in an action to recover for seduction and breach of promise of marriage. An execution was duly issued, and returned unsatisfied. Proceedings supplementary to execution were commenced, which resulted in the appointment of plaintiff as receiver of Bcmnon’s property. At that time Barnion was the owner of a one-sixth interest in 160 acres of land, upon which the Palmer judgment was a lien. A few days prior to the rendition of said judgment, Bcmnon executed a mortgage thereon to his sister, the defendant Julia Bcmnon, purporting to secure the payment to her of the sum of $J00. The receiver brings this action to set aside said mortgage, claiming that it was without consideration and was executed for the purpose of hindering, delaying, and impeding the collection of any judgment that might be secured in the pending suit. The defendants answered separately, each denying the fraudulent character of the mortgage, and alleging that it was founded upon a good and valuable consideration.</p> <p>The case was tried before the court, who found the facts substantially as stated, and, in addition, that one forty of the land was Bannon’s homestead; that the mortgage was not executed in compliance with any previous understanding between the parties that it should be executed, but was executed by Patrióle on his own motion, and the fact of its execution was then communicated to Judia', that Patrióle executed the mortgage for the express purpose of hindering, delaying, and defrauding the said Blanche E. Palmer in the collection of any judgment that she might recover;, and that the defendant Julia took the same with knowledge of such purpose and intention, and with the intention and for the purpose'of aiding Patricio in such fraudulent intention. Judgment was entered setting aside said mortgage so far as it affected any of the property described except the homestead. Both defendants appeal.</p> <p>They argued, among other things, that in order to render the mortgage fraudulent, it being given to a creditor, such creditor must have participated in the fraudulent intent. PCooh v. Peters, 97 Wis. 492; Bleiler v. Moore, 94 id. 885; Oarey v. Byer, 97 id. 554. The promise to pay the sister, being enforceable but for the statute of limitations, furnished a proper and adequate consideration for the mortgage. Pilis v. Gary, 74 Wis. 176; Estate of Kessler, 87 id. 660; Koch v. Williams, 82 id. 186; First Mat. Bernik v. Bertschy, 52 id. 438; Bannister v. Phelps, 81 id. 256; Mehlhop v. Pettibone, 54 id. 652.</p>

<p>Appeal from a judgment of the circuit court for Outagamie county: John- G-oodlaud, Circuit Judge.</p> <p>They argued, inter alia, that a condition against changes-that increase the risk is not broken by an increase resulting, from adjacent premises over which the insured has no control. 8 Wait, Act. & Def. 791; State Ins. Go. v. Taylor, 14 Colo. 499; 8. G. 20 Am. St. Rep. 281; 1 Wood, Fire Ins. (2d ed.), 584; Franldin F. Ins. Oo.v. Grover, 100 Pa. St. 266; May, Ins. §§ 244, 247'; Breuner v. Imerpool & L. do G. Ins. Go. 51 Cal. 101; S. O. 21 Am. Rep. 703; Satterthwaite v. Mut. B. Ins. Asso. 14 Pa. St. 393; Gates v. Madison Go. Mut. Ins. Go. 5 FT. Y. 469; 7 Am. & Eng. Ency of Law, 1032. The question whether there was an “ increase of hazard ” within the knowledge or control of the insured was one for the jury. 1 Wood, Fire Ins. sec.. 248; Pool v. Milwaulcee M. Ins. Go. 91 Wis. 530; Delonguemere v. N. 7. F. Ins. Go. 10 Johns. 120, 123; FEtma Ins. Go. v. Hormcm, 12 Ind. App. 652; 7 Am. &Eng. Ency. of Law, 1032; Williamis v. People’s F. Ins. Go. 57 FT. Y. 274; Iones v. Fwemam’s F. Ins. Co. 51 id. 318; Gornish v. Farm Buildmgs F. Ins. Go. 74 id. 295. To avoid the policy on the ground of increase of risk, defendant must show, not only that the insured had knowledge of the change, but also that the risk was thereby increased.. Rife v. Lebanon Mut. Ins. Go. 115 Pa. St. 530; S. G. 2 Am, St. Rep. 580. Tobe an “ increase of hazard ” the change must be some permanent change in the condition of the: property insured. Geo. Home Ins. Go. v. Fennier’s Admix, 28. Grat. 88; Leggett v. JEtma Ins. Go. 10 Rich. 202; Billings v. Tolland Go. M. F. Ins. Go. 20 Conn. 139; Comm. v. Side <& I. Ins. Go. 112 Mass. 136; Whitney v. Blade Biver Ins. Go. 72 ET. T. 117; German Ins. Go. v. Ha/rt, 16 Ky. L. Rep. 3441 La Force v. Williams Gity F. Ins. Go. 43 Mo. App. 518;. Westdiester F. Ins. Go. v. Foster, 90 Ill. 121; Shorn v. Bob-herds, 6 Adol. & El. 75; Sew Forlc v. Samilton F. Ins. Go. 39 ET. Y. 45; Gates v. Madison Go. M. Ins. Go. 5 id. 469;. State Ins: Go. y. Sughes, 10 Lea, 461; Au Sable I. Go. v. Detroit M. M. F. Ins. Go. 89 Mich. 407; Ilerrman v. Merchants'1' Ins. Go. 81 K. Y. 184; Williams v. S. F. M. F. Ins. Go. 31 Me. 219; Dobson v'. Sotheby, 22 Eng. O. L. 260; First Gong. Ghurch v. Holyoke M. F. Ins. Go. 158 Mass. 475; Johnson v„ Berkshire M. F. Ins. Co. 4 Allen, 388.</p>

<p>Ceetioeaei to review proceedings of the circuit court for Outagamie county: John Qoodland, Circuit Judge.</p> <p>This was a writ of eertiorari issued by this court on the relation of Morris F. Barteau, commissioner of the poor, etc., to review the action of the circuit court for Outagamie county in discharging, upon habeas corpus, from the custody of the relator, certain children committed to him for transmission to the state public school at Sparta by the county judge of Outagamie county. No attack is made by the relator upon the jurisdiction of the circuit court to issue its writ of habeas corpus and inquire into the reason for the restraint of the children. The circuit court for Outagamie county made full return to the writ of cerUora/ri, and there was no motion either to supersede or quash the same.</p>

<p>(1) Representations as to title: Evidence: Estoppel. (2) Fraudulent gift, as to whom void. (3) Appeal: Questions considered.</p> <p>1. Where a person makes representations as to the ownership'of property for the purpose of inducing another, or with knowledge that such other may probably be induced, to act on the faith of such representations by commencing an action and incurring costs in respect to such property, such circumstances are evidence against such person as to where the truth lies in respect to the title, but have not the conclusive effect of an estoppel in pais.</p> <p>2. Though a gift of property used in a going business be fraudulent as against existing creditors of the donor and against subsequent creditors as well, if the donor continues in possession with the consent of the donee, conducting the business so as to induce others to act on the theory that no change has taken place, the title of the donee cannot be challenged by a person who has not parted with property on the faith of such appearances or been prejudiced other than by incurring costs by an action in court.</p> <p>3. Where the only claim relied upon for recovery below is estoppel or fraud, locating the title in one as to his creditors though it be in fact in another, and there be a decision in that regard adverse to the claimant, if, on an appeal, such decision be sustained, the judgment will be affirmed even though the record disclose that there was evidence affecting the title on some other ground.</p> <p>[Syllabus by MARSHALL, J.]</p>

Ebeob to review a judgment of the circuit court for Milwaukee county: D. H. Johxsoit, Circuit Judge. argued that, as the case at bar was a criminal action in which no appeal will lie, the statute exempting the state froin giving bond does not apply. Harrington v. Smith, 28 Wis. 43, 67; Superior v. Horton, 63 Ped. Rep. 357; Van Steenwy clc v.Washburn, 59 Wis. 483; State v. MusMed, 12 id. 561; In re Murphey, 39 id. 287; State v. Bloedow, 44 id. 135.

<p>Appeal from a judgment of the circuit court for Outa-gamie county: Johst Goodland, Circuit Judge.</p> <p>Suit by the county judge for the beneficiaries against the estate of Jonathan Leiby as surety upon the bond of W. H. H. Wroe, as testamentary trustee under the will of John S. Emerson, deceased, the beneficiaries of the trust being the widow and minor child of said Emerson.</p> <p>Wroe was appointed testamentary trustee in 1887, and under the order of the court gave bond in the sum of $15,000, with Elias Rhodes and Jonathan Leiby as sureties, and received the trust fund, amounting to about $7,500. On filing his annual account on June 7,1890, said trustee informed the county court that the balance of the trust fund in his hands was $7,318.19, loaned on good security at six per cent, per annum, and that Elias Rhodes, one of the sureties upon his oficial bond, was dead. Thereupon, on June 10th, the county court entered an order “ that the said trustee furnish within ten days a new bond in the sum of $15,000, with two sureties, each of whom shall justify in the sum of $7,500.” On June 30th the trustee filed a new bond in accordance with said order, with Henry He Long and Samuel E. Rhodes as sureties, which bond ivas duly approved and filed. Ho suspicion then existed as to the management of the estate by Wroe, who filed, annual accounts showing the principal substantially unimpaired. Leiby, the surviving surety on the first bond, died intestate July 7,1894.</p> <p>In the early part of 1895 the trustee, Wroe, being called on to account, submitted to the county court of Fond du Lao county a sworn statement showing embezzlement of the entire estate, and an indebtedness from himself of §7,318.19, with interest from June 13, 1892, less a credit of $170.25 paid out for the estate, and tendered his resignation, which was accepted, and M. T. Simmons appointed in his place. Said Wroe was thereupon ordered to pay over to said successor the amount then due, of $8,412.75, with interest from April 30, 1895, within twenty days from date of the order, June 17,1895, which said Wroe failed to do; and thereafter, upon an order authorizing him so to do, the new trustee, Simmons, filed a claim against the estate of Jonathan Leiby, deceased, for said sum, -which claim was allowed by the county court at the sum of $9,258. The administrator of Leiby’s estate then appealed to the circuit court, where a trial was had by the court and jury, and a judgment dismissing the claim was entered upon a verdict directed by the court; both plaintiff and defendant moving the court to direct a verdict in their favor, respectively.</p> <p>The defendant claims that the new bond given June 30, 1890, was in substitution for the old bond, and relieved the sureties to the latter from any liability for acts subsequent thereto. The plaintiff contends that it had no such effect, but was merely additional security, leaving the old bond in full force.</p> <p>They argued, among other things, that the supreme court could not properly review the evidence because there had been no motion for a new trial. AnstecH v. Bentley, 61 Wis. 629; Heed v. Madison, 85 id. 667; Shores L. Oo. v. Starke, 100 id. 498. The jurisdiction of the county court of Fond du Lac county to grant probate in the estate in which the bond of the trustee was given was not proved. Neither the petition nor notice to admit the will to probate was shown. They were essential to the jurisdiction. Hem-inway v. Reynolds, 98 Wis. 501; Pryor v. Downey, 50 Cal. 388; Burris v. Kennedy, 108 id. 331. It is only when the whole record is introduced in evidence that liberal presumptions can he invoked to aid it. Haynes v. Oowen, 15 Kan. 637, 640-642. The second bond which the trustee was required to give and did give was a new bond. There is a clear distinction between a new bond and an “additional or further bond.” There was no misconduct or reason for requiring additional security, but it was the plain intention of all parties that the bond so ordered should be a new bond in fact. Such a bond would operate prima faeie to extinguish the old bond. International Bank v. Poppers, 105 Ill. 491; Davenport v. Sehram, 9 Wis. 119; Sehierl v. Bavmel, 75 id. 69; Ohalloner v. Boyington, 83 id. 399; 8. 0. 91 id. 27.</p>

S. Gilson, Circuit Judge. ■This is an action of ejectment to recover forty acres, of farm land; The land for many years was the homestead of one George Wells, who died, intestate April J, 1895. He-also owned some adjoining lands, which, together with the forty acres in suit, constituted his farm. The plaintiff was his only child and heir at law.

G-. Siebeckee, Circuit Judge. This is an action upon a draft drawn July 14,1893, by W. B. Pearson & Co., of Chicago, upon the defendant, Beverly Jefferson, for $1,200, payable to the plaintiff, and accepted by the defendant. The answer sets up three defenses: (1) Want of consideration; (2) that it was made under false and fraudulent representations on the part of the plaintiff; (3) that it was made under mutual mistake of fact.

Gr. Siebeokeb, Circuit Judge. This is an action to recover damages for personal injuries received by Conradina Strieker in her lifetime in consequence of being thrown from a wagon on the highway in the defendant town. She obtained a judgment in the circuit court, but, pending the appeal to this court, she died, and the plaintiff, being the administrator of the estate, has been substituted as the plaintiff in this court.

Appeals from judgments and orders of the circuit court for Dane county: R. G-. Siebecker, Circuit Judge. These are four actions upon fire insurance policies. The .actions have been in this court twice before, and will be found reported in 93 Wis. 57, and 98 Wis. 257, where the leading facts will he found so fully stated that it is not deemed necessary to state them again Rere.

G-. • Siebeckee, Circuit Judge. Action to recover an alleged amount due on a building contract and to enforce a builder’s lien therefor; also to recover damages for breach of contract to insure the building for the protection of the builder during its construction.

G-. SiebecKee, Circuit Judge. This action was commenced October 15, 1891, to restrain tbe defendants from going upon the premises described, with ■skiffs or boats or otherwise, for the purpose of hunting or shooting wild ducks or other wild fowls or game; and the plaintiff claims to be the exclusive owner of such premises, and that the defendants were trespassers thereon. _ The defendants, answering upon the merits, deny the plaintiff’s title to the premises, and allege, in…

G. Siebeckee, Circuit Judge. This is an action against the heir of a deceased person, under secs. 3214 et sey., Stats. 1898. The action was tried by the court. The facts were not in dispute, and were found by the court to he substantially as follows: Both the plaintiff and the defendant are residents of California.

<p>Appeal from an order of the circuit court for Outagamie county: Johx Goodlakd, Circuit Judge.</p>

This is an action to recover damages for the killing of three horses by the defendant’s railroad train on the evening •of the 13th or the morning of the 14th of July, 1895, said horses having strayed upon the defendant’s right of way by reason of the fence being down. The defendant’s railroad runs north and south through sections 1, 11, and 36, in the town of Summit, and section 18, town 33, range 11, both in the county of Langlade.

<p>Appeal from a judgment of the circuit court for Chippewa county: A. J. Yinje, Circuit Judge.</p> <p>Action for money paid for labor and to enforce a lien therefor under the laws in respect to lienable claims upon .sawlogs. The complaint set forth that work was done in driving certain sawlogs described, by various persons named, between April 15 and May 25', 1896, and that the amount which became due each of such persons therefor on an order drawn by defendant McDonald on plaintiff, was paid by him. Appropriate allegations were added showing the amount due for all claims so paid, a description of the logs upon which the labor was done, their location, and the filing of a claim for a lien in the form prescribed by law. It was further alleged that McDonald was indebted to plaintiff for the amount of money paid on the various labor'orders. The defendant Dells Lumber Compa/ny was impleaded under the statute as owner of the logs, and answered, putting in issue the right of plaintiff to a lien judgment. On the trial it was admitted by plaintiff that the labor orders were all drawn by McDonald on the plaintiff, and that he paid them according to their terms. The Dells Lumber Company objected to any evidence under the complaint, and, it being admitted that plaintiff paid the orders instead of purchasing the claims of the laborers, the objection was sustained and judgment was entered accordingly, from which this appeal was taken by plaintiff.</p>

J. Yiwje, Circuit Judge. Plaintiff agreed with defendant’s intestate, Lizzie Smith, to out and deliver at a sawmill in Ashland county, Wisconsin, the pine timber on certain lands for $3 per thousand feet, board measure, of the merchantable lumber manufactured therefrom, as determined by a scaler mutually agreed upon, by measuring the lumber as it came from the saw, excluding mill culls, subject however to the supervision of another scaler mutually agreed upon in case of…

J. YiNje, Circuit Judge. The plaintiff on August 16, 1894, filed with the city clerk of Ashland claim for injury at the hands of a mob on one of the streets in said city. No action XAras taken upon said claim until October 23, 1894, when the council voted to disallow it.

<p> Master and servant: Injury from defective appliances: Pleading. </p> <p>A complaint which in substance alleges that the defendant negligently provided, as a part of the equipment of his workshop, to be used by the plaintiff and other employees, an elevator which was defective, dangerous, and unfit for such use, and improperly and insecurely fastened to it a cable to sustain it which was unsafe and unfit for that use, which defects were well known to the defendant but were unknown to the plaintiff, who had no means of knowing thereof; that it became necessary in the course of his employment for the plaintiff to go upon such elevator to ride to an upper floor; and that while he was doing so, in the exercise of due and ordinary care, the elevator, by reason of such negligence of the defendant, became unfastened, gave way, and fell, whereby the plaintiff was injured, — is held to state a cause of action.</p>

<p>Appeal from an order of the superior court of Douglas county: Chables SMITH, Judge.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: R. D. Mabsiiall, Circuit Judge.</p> <p>Action to quiet title. The complaint in substance alleged title in fee to certain lands in plaintiff; that they had always been vacant and unoccupied; that defendants claimed under the patent title, setting forth a history of it from the entry by Samuel Rose, in 1856; that September 5, 1871, a tax deed of the premises, in due form of law, was issued to David Quinn, which was duly recorded December 8, 1871; that subsequent to such record, by judicial proceedings under the statute on the subject, the former owners were duly foreclosed, and the tax-deed claimant decreed to be the absolute owner of the property under his tax deed; that August 6, 1877, the county of Douglas obtained a tax deed of the lands in due form of law, which was duly recorded on the following day, and the title so acquired, pursuant to a resolution of the county board, was duly conveyed to one Syer; and that his title was conveyed to, and vested in, the plaintiff, before the commencement of this action. There was a further allegation to the effect that the plaintiff claimed the benefit of the statute of limitations of this state barring former owners of tax-deed lands from questioning the validity of tax deeds after three years from the date of their record, specifying particularly the statutes relied upon.</p> <p>Defendants answered, alleging the death of the entryman, Samuel Rose, in 1862, and claiming title in fee, either as heir or grantee of the heirs of Rose. Further answering, the defendants alleged various defects in the tax proceedings as to both, tax deeds, and denied that Douglas county conveyed its tax-deed claim after being acquired, other than by an instrument set forth in the answer, -which, it was alleged, was insufficient to convey title. Defendants also counterclaimed as owners of the Rose title, and prayed judgment quieting their title, and to this counterclaim there was no reply served.</p> <p>On the trial of the action, the defendants moved for judgment on the pleadings, because there was no reply to the counterclaim, and they objected to the reception of any evidence on the same ground. The court ruled against them, and thereupon considerable evidence was received showing defects in the tax-deed proceedings, and various exceptions to the reception of such evidence were made and overruled, showing that plaintiff insisted upon the statute of limitations as pleaded in the complaint.-</p> <p>The cause was tried by a referee, who found as facts the issuance of a patent to Samuel Rose in 1860, and that the land was vacant from that time up to 1892, and that the Quinn tax deed was fair on its face, and that said deed and the foreclosure thereof, in 1872, were' substantially as alleged in the complaint, and that thereby the entryman, Samuel Rose, and all those claiming under him, including defendants, were barred from anj^ claim in or to the lands; that there was no Evidence of when Samuel Rose died; that the allegations of the complaint that the subsequent tax deed to Douglas county was fair on its face and properly executed and respecting said deed and the recording thereof and the conveyance of that title to plaintiff through one Syer, before the commencement of this action, pursuant to a resolution of the county board, were true. As conclusions of law, the referee found that the Quinn tax deed extinguished the patent title, and that plaintiff was the owner in fee. of the lands in question, and was entitled to a judgment quieting the title as prayed for in the complaint.</p> <p>The foldings of fact were duly excepted to, and thereafter such motions and rulings were made and exceptions taken as were necessary to preserve for review the questions treated in the opinion. The findings of the referee were confirmed by the court, and judgment was rendered for the plaintiff, and the defendants appealed.</p> <p>Counsel for the appellants argued, inter alia, that the answer sets up a counterclaim showing a valid chain of title in defendants, and, there being no reply, they were entitled to judgment on their motion. Eastman v. Linn, 20 Minn. 433, 434; Jarvis v. Peale, 19 Wis. 74; Orignonv. Black, 76 id. 674, 683, 684; Power v. JBowdle, 3 N. Dak. 107. The plaintiff, claiming through a deed from Douglas county to his vendor, must allege and prove that deed to be valid. Bemis v. Weege, 67 Wis. 435-438. He only alleges that the deed was made “ pursuant to a resolution ” of the county board. The clerk’s authority to make it must be shown and cannot be presumed even when recited in the deed. Ward v. Neaedah L. Co. 70 Wis. 447, 448. The board had no authority to sell for anything but cash. County orders are not cash. Smith v. Barron Go. 44 Wis. 686-693; Pelton v. Orawford Go. 10 id. 69. Nor could they grant special privileges to former owners: Chicago v. Bumpff, 45 Ill. 96; Tugman v. Chicago, 78 id. 405; De Ben v. Gera/rd, 4 La. Ann. 31; Whyte v. Pfashville, 32 Tenn. 220, 2 Swan, 364.</p>

<p> Mortgages: Foreclosure by advertisement: Redemption: Unreasonable solicitor’s fees: Costs on demurrer. </p> <p>1. The provisions of secs. 3533, 3534, R. S. 1878, that lands sold on foreclosure of a mortgage by advertisement may be redeemed by payment of the amount bid therefor, with interest, and that if not so redeemed a deed shall be executed to the purchaser, cannot be abrogated by a court of equity so as to allow redemption by payment of a less sum, on the ground that the solicitor’s fees included in the amount bid were unreasonable.</p> <p>2. The exclusive remedy of a person charged with unreasonable solicit- or’s fees or other costs on the foreclosure of a mortgage by advertisement is to have the costs taxed as provided in sec. 3543, R. S. 1878.</p> <p>3. Costs are not recoverable on an order overruling or sustaining a demurrer, other than under the general provisions for taxing costs in favor of the prevailing party at the final determination of the litigation, except as a condition of answering or serving an amended pleading.</p>

<p> Master and servant: Assumption of risks of employment: Contributory negligence: Special verdict: Compound question. </p> <p>1. An employee of mature age and ordinary intelligence, who knows how the work in which he is engaged is being conducted, and the position and condition of the appliances used, is bound to apprehend the dangers resulting therefrom.</p> <p>2. In an action against a city to recover for the death of an employee who was killed, while at work in repairing a bridge, by the falling' of a wooden beam which had rested unsecured upon iron plates preparatory to being bolted to another beam, a question submitted for special verdict as to whether the deceased knew the manner in which the work was being conducted, and the position and condition of the beam and plates, and apprehended the danger, is objectionable in form, and a simple negative answer thereto is not a finding that he did not have that knowledge from which would result an assumption of the risk.</p> <p>S. A finding on the question whether or not the deceased had such knowledge is not rendered immaterial by a finding, in answer to another question, that he was not guilty of contributory negligence, where in the charge to the jury assumption of risk was carefully differentiated from contributory negligence, and the jury must have understood that, although they found the deceased had full knowledge of the situation and its perils, they might nevertheless find that there was no contributory negligence.</p>

<p> Lessor’s liability for injuries caused by defects in leased premises: Pleading. </p> <p>1. The lessor of a factory, who knew of a concealed and dangerous defect in the clamp fastening the cable of an elevator therein intended for use in hoisting employees and materials to an upper story, and did not disclose the same to the lessee, by whom such defect was not known nor discoverable by a reasonably careful examination of the premises, is liable for an injury to an employee of the lessee resulting from such defect.</p> <p>"2. In a complaint for an injury caused by the fall of an elevator upon which the plaintiff was riding, by reason of a concealed defect in the fastening of the cable, an allegation that such elevator would not sustain the weight which was ordinarily and usually placed upon it, but would drop to the ground, and was therefore a nuisance, is not to be construed as meaning that it would fall when•ever it was used, which would charge all who used it with knowledge of the defect, especially when it is alleged that the plaintiff had no knowledge thereof or of the danger involved in its use f but it'simply means that such elevator was liable to fall at any time in the course of the ordinary and necessary use thereof.</p>

<p> Appeal: Vacating judgment by default: Discretion: Terms. </p> <p>1. The only question to be determined on appeal from an order vacating a Judgment by default, under sec. 8832, Stats. 1898, is whether the court abused its discretion.</p> <p>8. In an action by the holder of tax deeds to bar the former owners, it appeared that the land was worth more than ten times the amount necessary to redeem it from the tax sales; that the copy of the ■ complaint served on the defendant was not signed or verified; that-the defendant did not answer within the statutory time, claiming to rely upon an understanding with plaintiff’s attorney that he might have further time; that judgment by default was taken twenty-three days after the time to answer had expired, without notice to defendant’s attorney; and that eight days thereafter the defendant moved to vacate the same, tendering a verified answer setting up a complete defense, with an affidavit of merits. Held, that the court did not abuse its discretion in vacating such judg”ment.</p> <p>3. Where the application to set aside a judgment by default was made at the same term at which the judgment was taken, the imposition of terms was not a condition precedent to the granting of the relief sought.</p> <p>4. In such a case, it was not an abuse of discretion to impose as terms that the defendants file their answer and go to trial at the term of court then about to commence, without.requiring them to pay costs.</p>

<p>Jurisdiction: Correction of divorce judgment: Quieting title to personalty: Res adjudicata: Foreclosure of mortgage.</p> <p>A judgment of divorce was granted and a division of the property made, a note and mortgage being awarded to the plaintiff. Service on the defendant was by publication. There was no appearance. After more than a year expired an action in equity was begun against the divorced husband and the mortgagor to change the divorce decree, it being supposed that the description of the note and mortgage was insufficient. The complaint, prayer for judgment, and the judgment subsequently rendered, though mainly to change the divorce judgment, were sufficient for relief quia timet. Jurisdiction of both of the defendants was obtained by proper service of process. Subsequent to judgment in the second action,’this action was commenced to foreclose the mortgage. A judgment of dismissal was rendered on the ground that no jurisdiction was obtained to enter the divorce judgment for want of proper service on the defendant. Held:</p> <p>(1) Whether the court had jurisdiction^ to entertain a bill of review and change a judgment in an action after the expiration of more than one year from its rendition, doubted.</p> <p>(2) Plaintiff’s title to the note and mortgage was determined by the judgment in the second action. Whether the court acquired jurisdiction in the divorce action or not was entirely immaterial to the right to foreclose the mortgage in this action. The judgment in the second action, till set aside by some proper proceedings, was binding on all parties to it, and all claiming under or through them.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeal from an order of the circuit court for Douglas county: A. J. YiNJE, Circuit Judge.</p> <p>Action by a tax-title claimant under cb. 50, S. & B. Ann. Stats., to bar former owners. The copy of the tax deed contained in the complaint was in the statutory form and the complaint unobjectionable as to the facts stated therein, unless the deed be defective by reason of the language of the opening recital, which is as follows: Whereas, K L. Hunt, assignee of F. H. Ruger, and assignee of F. H. Ruger, who was assignee of Douglas county, has deposited in the office of the county clerk of the county of Douglas, in the state of Wisconsin, ten certificates of the treasurer of said county, whereby it appears, as the fact is, that the following described pieces or parcels of land lying and being situated in the city of Superior, county of Douglas, and state of Wisconsin, to wit:” Then follows the description, then the following: “Were for the nonpayment of taxes, separately sold by the treasurer of said county at public auction, at his office in the city of Superior, in the county of Douglas, on the 15th day of May, in the year of our Lord one thousand eight hundred and ninety-four, to the said Douglas county and E. H. Ruger, respectively, for the sum set opposite each description, being the sum of two hundred and fifty dollars and tweüty-nine cents in the whole,” etc.</p> <p>The defendant Stinson demurred to the complaint for ■want of facts stated therein sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff appealed.</p>

<p>Appeal from a judgment of the superior court of Douglas county: Chaeles Smith, Judge.</p>

<p> Equity: Trusts and trustees: Retaining cause to grant legal relief. </p> <p>1. One F. was employed by 0. as agent to sell patent rights, with power to take real estate in payment, the title to be taken in the name of' O. and he to sell the same and divide the proceeds with F. In. violation of his authority, F. took a deed of some land in his own-name, and afterwards deeded it to 0., who agreed to pay him a certain sum, a part of which he paid. Held, that 0. was not a trustee for nor in any way liable to S., whom F. had employed, for a percentage of his share, to assist him in making sales, and who knew of the agreement between F. and C.</p> <p>2. In an equitable action upon such facts to charge C. as trustee of an interest in the land for S., the court properly declined to retain jurisdiction for the purpose of requiring C. to pay to S., out of the balance due from C. to F., the amount which F. owed to S., even though F. was insolvent. Franey v. Warner, 96 Wis. 222, and other cases distinguished.</p>

<p>(1-3) Master and servant: Precautions against danger: Injury from sudden starting of machinery: Negligence of person employed to give warning: Fellow-servants: Assumption of risks. (4) Practice: Change in decision after its announcement.</p> <p>1. If a master has properly selected and instructed a competent man to give warning to his other employees of the movements of machinery involving danger to them, such as apparatus for unloading coal from a vessel, he will not be responsible for an injury to one of said employees caused by a negligent failure of such man to give the-warning. Promer v. M., L. S. & W. it. Co. 90 Wis. 215, limited.</p> <p>2. An employee by whom the machinery used in unloading coal from-a vessel was set in motion and stopped, and one employed to stand at the hatch and give warning of the starting of such machinery to others engaged in said work in the hold of the vessel, were fellow-servants of such others, where all were under common direction and command, with no right of control one over the other.</p> <p>3. An employee of ton years’ experience in the handling of coal, and who had for several months worked for the same master under the same conditions and regulations as at the time of the injury, must be held to have assumed the risk of the lack of any precautionary regulations prescribed by the master.</p> <p>4. It was not error for the court, after announcing “Nonsuit granted,”' to withdraw that decision and direct a verdict, the noon recess only having intervened, and the jury not having been discharged nor the situation of the parties changed.</p>

<p>Appeal from an order of the circuit court for Douglas county: A. J. Yinje, Circuit Judge.</p> <p>Appeal from an order overruling a general demurrer to the complaint upon a tax deed to bar former owners. The defects suggested are that in the copy of the tax deed, as set forth in the copy of the complaint served on this defendant, there wTas nothing to indicate the existence of the seal of the county board. Examination of that copy, which js in the records, shows that after the county clerk’s signature is the device “ [Seal].” The attesting clause contains the recital that the clerk has affixed the seal of the board of supervisors. Upon the copy of that deed set out in the original complaint on file, there was, in addition, a scroll inclosing the words, “ Seal of the Board of Supervisors, Douglas County, "Wis.” It is further objected that the complaint, which was based on two separate certificates, states only the gross amount of taxes paid subsequently to the issue of the certificates, and does not disclose what amount was paid on each parcel. The order of the circuit court, overruling the demurrer without costs to either party, permitted the plaintiff 'instanter to correct the copy of the complaint which had been served on the defendant Miller, by inserting therein the scroll seal so as to conform it to the original complaint, and ordered that defendant answer within ten days, and the case be put on the trial calendar at the then term of court.</p>

<p>Appeal from a judgment of the circuit court for Rock county: John R. Bennett, Circuit Judge.</p>

Bennett, Circuit Judge. This is an appeal from an injunctional order pendente lite. The facts upon which the order was made were as follows: On the 19th of October, 1897, the Bank of Edgerton was a state banking corporation which had been doing business at Edgerton for a number of years.

<p>(1) Parties: Substitution: Legal capacity to sue: Demurrer. (2) Insolvent corporation: Winding-up action: Joinder of causes.</p> <p>1. Mere error of the trial court in making a substitution of plaintiffs ' does not goto the legal capacity of the substituted plaintiffs to sue; and on a demurrer for want of such capacity the complaint stands as if the action had originally been commenced by such plaintiffs.</p> <p>2. Under ch. 140, E, S. 1878, but one winding-up suit to settle the affairs of an insolvent corporation is proper, and in that suit all the rights and all the liabilities of creditors, officers, and stockholders are to be worked out. The various liabilities enforceable therein are not separate causes of action, but are mere incidents or parts of one subject or cause of action, — the settlement of the corporate affairs.</p>

<p> Highways: Defects outside of traveled way: Notice to town officers: Accidental deviationby traveler: Damages: Instructions to jury: Reading boohs to jury: Immaterial error. </p> <p>While a person in the exercise of ordinary care was driving on a public highway, riding in a roadcart drawn by a single horse, the horse, in order to avoid a mud puddle, or for some other reason, suddenly swerved to the right-hand path, causing the right wheel of the road cart to track outside the traveled part of the way a few .inches, and strike a stump which had there existed since the original construction of the road. Held:</p> <p>1. The following instruction to the jury was proper: “If the town officers knew, or by the exercise of ordinary diligence ought to have known, that the stump existed so near the traveled track as to render the highway dangerously defective for the use of travelers in the exercise of ordinary care, and plaintiff in the exercise of such care drove against it and was injured, the town is liable.”</p> <p>2. The character of the defect and the length of time it had existed were entirely immaterial except as clearly covered by the instruction.</p> <p>3. The defect having existed from the time of the original preparation of the highway for public use, the town was bound to have known of its existence. Proof of notice to the town officers was not required.</p> <p>4. The defect not being so far outside the traveled track that a traveler would have been obliged to actually Ipave such track in order to reach it, it could not be said as a matter of law that it did not render the highway actionably defective.</p> <p>5. The following instruction was proper: “You are allowed to give such damages for bodily pain and mental anxiety as you believe the plaintiff is justly entitled to recover,” in connection with the instruction that, “the damages should be no greater and no less than you believe from the testimony the plaintiff is entitled to receive,” the idea being that the assessment of damages should be made solely upon the testimony produced on the trial.</p> <p>6. The mere accidental deviation from the traveled way, by the ■swerving of the horse to one side of such way to avoid a mud puddle, or deviation because of the natural inclination of the horse to travel in one of the foot paths instead of on the crown of the road, thereby causing the wheels to run outside the track for a few inches, does not come within the rule that if a person, for his own convenience and without cause, drive outside the way prepared for travel, and thereby reach an obstruction in the road and receive an injury, the municipality is not liable.</p> <p>7. It is improper for counsel in a case to read law or other books to a jury, and a trial judge ought firmly to prohibit it; but if he fails to do so, the error must be regarded as harmless unless it clearly appear that the objecting party was prejudiced thereby.</p> <p>[Syllabus by MARSHALL, J.]</p>

Bennett, Circuit Judge. The facts out of which this case grows, and the decision of the general questions of law involved therein, will be found in 96 Vis. 600.

<p>Appeal from an order of tlie circuit court for Green county: John E. Bennett, Circuit Judge.</p>

Y. BardeeN, Circuit Judge. . The plaintiffs in error, Charles M. Emery and William Lord, were convicted of the crime of murder in the first degree. The facts are stated in the opinion.

J. YiNje, Circuit Judge. This is an action brought by the plaintiff, as administrator of the estate of Ann Eliza Huber, deceased, to recover possession of three certificates of deposit issued by the Bank of Ellsworth, March 30, 1894, for $400 each, and two promissory notes owned by the deceased, one for $50 and one for $300.

<p>Sale by broleer in Ms own name: Liability of principal for refusal to d&- • liver: Commissions.</p> <p>1. If a broker who has expressly agreed with his principal to sell the goods of the latter for him on commission, contracts with third persons in his own name to sell and deliver to them such goods to be furnished by the principal, and the latter refuses to furnish them, such broker cannot recover from the principal the loss he may sustain by reason of his being obliged to buy the goods at an advanced price and fulfill the contracts himself.</p> <p>3. If the principal in such a case approves the contracts but fails to furnish the goods, he will be liable to the broker for his commissions the same as if they had been furnished.</p>

<p>Appeal from an order of the circuit court for Waukesha county: James J. Dick, Circuit Judge.</p> <p>William McLaughlin, describing himself as the brother of their father, and therefore the uncle of certain minor children under fourteen years of age and then under the guardianship of their mother, made verified petition to the county -court of Waukesha county, setting forth misconduct and waste- by the guardian, and praying her removal and the appointment of some one in her place. That petition was denied and the removal of the guardian refused. Thereupon said William McLanighlÁn, with no description whatever of his relationship to the parties or of his interest in the matter, gave notice of appeal to the circuit court, asserting himself aggrieved by said order. The general guardian made motion in the circuit court to dismiss said appeal, which motion was allowed, and the appeal accordingly dismissed, from which action this appeal is brought.</p> <p>They argued, among other things, that it was immaterial that the petition was not in form by the petitioner as guardian ad litem or next friend. The parties to it were the infants. Yineent v. StmLs, 45 Wis. 462; MeKinney v. Jones, 55 id. 43, 44; Gulf, G. <& 8. F. R. Co. v. Styron, 66 Tex. 421. The next friend is not for any purpose regarded as a party to the suit, except that he is liable for costs. Sinclair v. Sinclair, 13 Mees. & W. 640, 646; Baltimore & O. F. Co. v. Fitzpatrick, 36 Md. 619; Brown v. Hull, 16 Yt. 673; Gray v. Parke, 155 Mass. 433, 436; Tripp v. Gifford,\&. 108.</p>