Volume 103 — Wisconsin Reports

<p> ■Master and servant: Injuries to quarryman: Safe place to work: Assumption of risk: Fellow-servants. </p> <p>1. An employee in a stone quarry cannot recover for injuries sustained through the falling of a piece of rock from above upon the ledge on which he was at work, where such falling was due to thin clay seams which ran through the rock in all directions, the existence of which he knew as well as the foreman or superintendent, and it, does not appear that the latter had, or could have secured by the use of ordinary care, any knowledge superior to that of the employee as to the particular danger.</p> <p>2. An employee in a stone quarry in which by reason of the blasting and removal of stone by himself and his fellow-workmen the conditions and surroundings are constantly changing assumes the risk of the place becoming unsafe through such operations, and cannot recover for injuries caused by the falling of a fragment of stone which in the course of the work had become loosened.</p>

<p>Appeal from, a judgment of the circuit court for Outa-gamie county: Jonsr G-oodland, Circuit Judge.</p>

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

<p> Deeds: Inconsistency in description: Construction: Disputed boundary: Adverse possession: Estoppel: Mutual mistake. </p> <p>1. A conveyance of real estate will not be declared void for uncertainty in the description where it is possible, by any reasonable rule of construction, to determine what property it was intended to convey.</p> <p>2. In construing a deed containing inconsistencies in the description of the land thereby conveyed, preference will be given to enumerated monuments over enumerated courses and distances, and to such courses and distances over the statement of the quantity of land conveyed.</p> <p>8. In 1849 Swift, being the owner of a fractional quarter section, bounded on the west by a range line, conveyed the S. "W. J thereof to M., describing it as forty acres, and in 1877 M. conveyed it to plaintiff, describing it as forty acres more or less. Said subdivision actually contained 44.11 acres, and the N. W. J of said fractional quarter section actually contained 44.25 acres, the excess of the township, under . the rules of the United States land office in conformity to sec. 2395, R. S. of U. S., having been carried to the west tier of forties. In 1851 Swift conveyed the E. $ to Smith, describing it as containing eighty-two acres, and in 1880 he executed a correction deed describing the land conveyed as the east eighty-two acres. In 1881 D., who claimed under Swift, executed a deed to defendant, describing the premises conveyed as commencing at the northwest corner of said quarter section; “thence running east along the quarter line eighty-six rods to the corner of lands owned by Smith; thence south parallel with the quarter line, 160 rods, to the' center of the' highway; thence west, along center of the highway, six rods; thence north, along the line of the land owned by [plaintiff], eighty rods; thence wpst, along the line of land owned by [plaintiff], eighty rods; thence north, along the center of the highway, eighty rods, to the place of beginning,— containing about forty-six acres, be the same more or less, according to the government survey. The land not to interfere with Smith’s east eighty-two acres.” The section was bounded on the south and west by a highway. Held that, construing the description with reference to the situation, that part calling for a north and south line “ along the line of lands owned by” plaintiff should be rejected as surplusage; and that so construed the deed was sufficient to sustain a claim of adverse possession under sec. 4311, R. S. 1878.</p> <p>4 In such a case it appeared that in 1883 there was a fence along the west side of the disputed strip, with the exception of a gap of a few rods; that the fence was afterwards completed and remained in that condition until 1890, when plaintiff and defendant concluded from measurements that the south end of it was eight feet too far east; that defendant then moved the fence at the south end, west about that distance, the removal extending north probably twenty or twenty-five rods; and that the fence when so removed was substantially on the west line of the land in controversy. The evidence was practically undisputed that defendant at all times had occupied the disputed land on the east side of the fence, and had made improvements thereon. Held, that plaintiff could recover, if at all, only that portion of the disputed strip lying between the fence as it was built in 1883 and as removed in 1890.</p> <p>S. The mere building of a line fence, and the cultivation and improvement of the land on one side of it by the adjoining owner, would not constitute an estoppel, where the parties labored under a mutual mistake.</p>

<p>Appeal from an order of the circuit court for Outagamie county: Joi-iN Goodlaed, Circuit Judge.</p> <p>The complaint alleges that the plaintiff’s ward, Fannie Kuntz, prior to 1861, was the wife of Cornelius Kuntz, resident in the town of Dale, Outagamie county; that ever since 1860 she has been wholly insane, and prior to 1861 had been sent to the Mendota Insane Asylum, but had returned to the home of her father, where she was being cared for; that in 1861 her husband obtained a decree of divorce on allegations of adultery, by fraud in actively concealing from the court the fact of her insanity, and so distorting evidence as to defraud the court; that afterwards, in August, 1865, he married the defendant Lwrilla (then Hall), and lived with her until 1878 in Waupaca county, when they moved to the state of Colorado, where he died November 16, 1896, leaving two children by Lurilla, the defendants Nellie and Minnie, and leaving real and personal property in Colorado, and also in Nebraska, and that the defendant Mmnie Koontz has been duly appointed administratrix in Colorado, and defendant K. II. Strayor administrator in Nebraska; that the other defendants are the children of the first marriage; that the plaintiff’s ward has been hopelessly and wholly insane, so as to have no knowledge of any transactions, continuously ever since about 1860; that Moyer is her general guardian, appointed in January, 1884, and that said guardian, and all the relatives and friends of Fannie Kuntz, were ignorant of the grounds on which the divorce had been obtained, and of the fraud practiced therein, until within a few months of the commencement of this suit. The prayer is that the decree of divorce of June 22, 1864, be declared void and of no effect.</p> <p>Upon the complaint, and an affidavit of the guardian setting forth most of the above-stated facts, the nonresidence of the respondent defendants, and that a cause of action exists against them which arose in this state, the plaintiff applied for and obtained an order of publication, in pursuance of which the summons and complaint were served by delivering the same personally as to the respondents outside the state. Lurilla and Nellie Koontz, Minnie Koontz, as admin-istratrix, and E. II. Strayor, as administrator, appeared specially, and moved that the order of publication be vacated and set aside, and that the service of the summons on Mi/rmie Koontz, as administratrix, on A A Strayor, as administrator, and on Lurilla and Nellie Koontz, be set aside, and the said summons, as to these defendants, be quashed, and the action as to them dismissed for want of jurisdiction; which motion was granted, and order entered accordingly. The plaintiff appeals therefrom.</p>

<p>Appeal from a judgment of tbe circuit court for Outa-gamie county: John Goodland, Circuit Judge.</p> <p>The facts are stated in the'opinion.</p>

<p>Appeal from a judgment of tbe circuit court for Pollt county: A. J. YiNje, Circuit Judge.</p> <p>Tbe plaintiff sued tbe defendant town for personal injuries sustained by being thrown from a wagon in which she was riding; her fall being caused, as she claims, by the wagon striking a large projecting rock in a highway of the town just at the side of the traveled track. It appeared on the trial that one Stone was driving, and that he and the plaintiff were riding in a one-horse wagon, when from some cause both of them were thrown out, and the horse ran away, and left the wagon at a point about a" mile and a half further along the highway; and that somejmrts of the harness and wagon were broken. The evidence of the defendant tended to show that the rock in question was not as large as claimed by the plaintiff, and not prominent enough to constitute a defect in the highway; and the claim was also made that the accident was the result of a break in the harness occurring while the horse was coming down a hill, just before reaching the rock.</p> <p>A special verdict was returned, by which it was found, in reply to questions, (1) that the defendant was guilty of want of ordinary care in respect to the condition of the highway at the time and place of the accident; (2) that such want of ordinary care was the proximate cause of the plaintiff’s injury; (3) that the plaintiff was not guilty of any want of ordinary care that contributed to her injury; and (4) that the plaintiff’s damages amounted to $1,300.</p> <p>After argument had been made to the jury, the defendant requested the submission of two additional questions as part of the special verdict; the first of which questions asked the jury whether the driver of the wagon was guilty of contributory negligence, and the second question asked whether such contributory negligence on the part of the driver, coupled with want of ordinary care on the part of the defendant, was the proximate cause of the plaintiff’s injury. The submission of both of these questions was refused by the court, which stated, as one reason therefor, that the requests came too late, and exceptions were taken to the rulings. The charge of the court is not preserved in the bill of exceptions, with the exception of two detached sentences, and no exceptions were taken to any part of the charge during the trial term.</p> <p>Judgment for the plaintiff was entered upon the verdict,, and from this judgment the defendant appeals.</p>

The action was commenced to recover a sum of money alleged-to be due plaintiff on contract from George E. Ja-cobia & Co. George E. Jacobia was duly served with process and he caused an answer to be made to the complaint in the name of the company.

J. Yin je, Circuit Judge. This action was commenced to foreclose a chattel mortgage upon a lot of logs, lath, lumber, and shingles, of the value of about $38,000. Such proceedings were had that on November 21,1895, the'appellant, A. R. Mills, was appointed as receiver. He duly qualified as such, and took possession of and sold the property under the direction of the court.

<p> Banks and banking: Insolvency: Constitutional laic: Banking law: Preferences. </p> <p>1. It Is well settled in cases where the decision of a legislature as to its own powers is reviewed by the judiciary, that the legislature has all powers of legislation not prohibited by express words of the constitution, or by necessary implication therefrom; that the unconstitutionality of a statute must be clear and manifest before a court should declare it; and that if there be any reasonable doubt as to its constitutionality the statute should be upheld.</p> <p>2. The provisions of sec. 3245, Stats. 1898, directing a preference to the United States, the state, and any county, city, town, or village therein, out of the assets of an insolvent corporation in process of being closed up pursuant to the statutes, as applied to banks, does not violate either the express words of the constitution, or any necessary implication therefrom, or that of the banking act (ch. 479, Laws of 1852); and the legislature -is not prohibited from regulating, in common with other corporations, the administration of insolvent banking corporations and the distribution of their assets.</p> <p>8. The banking act (ch. 479, Laws of 1852) was not an attempt to codify all laws which should in any way affect, control, or regulate banking corporations, but to provide for the creation of particular corporations with certain peculiar powers, and to enact a body of special provisions required for some of the peculiar and distinguishing business of such corporations and individuals similarly engaged, leaving-the banking corporation so created a member of the business and commercial community, to be regulated by the laws governing other individuals and corporations therein, except so far as the very act itself has defined the differences.</p> <p>4. The methods of procedure, in case of insolvency of banking corporations, the remedies of creditors, and the rights of the latter in the assets rest under the general law in relation thereto as it stood at the time of the passage of ch. 479, Laws of 1852, or as it might thereafter be prescribed by the law-making power. The banking act does not extend over those subjects, and such general laws were not adopted into the banking law so that they could not thereafter be changed.</p> <p>5. The banking act containing no express provisions as to the manner of distribution of assets in case of insolvency, and such proceedings being supplied by general legislation, it cannot be said that the general purpose and scheme of that act was that all the creditors of a banking corporation should share equally in the assets, and the preference given certain creditors by sec. 3245, Stats. 1898, is valid.</p>

<p>Appeal from a judgment of tbe superior court of Douglas county: A. J. YiNJe, Judge.</p> <p>This is an action by tbe receiver of tbe State Trust & SavingsBank, an insolvent state banking corporation, against tbe defendant, a national banking corporation, to recover a considerable amount of notes, bonds and other securities, as well as over $9,000 in money, on the ground that the same were fraudulently taken by tbe officers of the defendant bank from tbe assets of tbe State Trust & Savings Bank at a time when tbe latter institution was insolvent. Tbe action was tried by the court, and tbe findings of fact are quite lengthy, and may be summarized as follows:</p> <p>On and prior to February 13, 1897, the State Trust & Savings Bank was a state banking corporation, and tbe defendant a national banking corporation, both doing business at Superior, tbe former corporation doing its business in tbe «ame bank building and room with the defendant. The custom of the State Trust & Savings Bank was to deposit its funds, with the exception of $1,000, at the end of each day’s business, with the defendant bank, reserving only said $1,000, which it deposited in its own safety-deposit vault. When the savings bank needed funds in its business it obtained the same by drawing checks on the defendant bank, and when its deposits were exhausted, and it needed additional funds, it borrowed the same from the defendant bank, and gave certificates of deposit therefor. In February, 189G, one Landswick was elected cashier of the savings bank, and remained such until the appointment of the receiver. Until the evening of February 11, 1891, Ilomer T. Fowler was a director and president of the defendant bank, and was general manager thereof, and until February 12, 1897, was also a director and the general manager of the savings bank, and said Landswick conducted said savings bank according to the directions given him by Fowler. The board of directors of the savings bank was composed of Landswick, Homer T. Fowler, and Walter Fowler, but said bank had no president for some time prior to February 13, 1897. One Julsrud, cashier of the defendant bank, at times gave directions to Landswick, as to the business of the savings bank, for Mr. Fowler. Louis Hanitch was attorney for both banks, and was in the banking room nearly every day on business as attorney or otherwise.</p> <p>There were continuous withdrawals from the savings bank beginning in 1893, and for two weeks or more prior to February 12, 1897, heavy withdrawals were made from both banks. On the evening of February 11, 1897, Homer T. Fowler resigned as president of the defendant bank, and ceased to manage its business, but continued to be a director until February 16th following, and on said February 11th Julsrud resigned as cashier, and one Kommers was elected cashier, but Julsrud continued to act during the whole of the 12th day of February. Landswick was informed of these resignations by Mr. Eowler on the same evening that they took place, and Fowler then told Landswick that he would have nothing more to do with the savings bank, and that he (Landswick) should take his orders from the new officers of the defendant bank. Hanitch succeeded ITomer T. Eowler as president and manager of the defendant bank, and actively engaged in such management on the 12th of February.</p> <p>The banking hours of said banks were from 10 o’clock a. m. to 3 o’clock p. m., but the savings bank frequently did business with the defendant bank after 3 o’clock. On the morning of February 12, 1897, the savings bank was indebted to the defendant bank in a sum exceeding $30,000, and the savings bank wa<s then insolvent, which insolvency was known to the defendant bank. On the morning of said day the savings bank had on hand $800 in cash, and during the day drew $2,000 by check from the defendant bank for the running of its business. Between 11 o’clock and 12 o’clock Landswick paid a certificate of deposit of $5,175 due on that day from the savings bank to the defendant bank by check on its funds in the defendant bank, which refused to extend the time of payment of said certificate of deposit. After banking hours on the 12th of February, the savings bank had about $1,000 in cash on hand, which Julsrud requested him to deposit with the defendant bank, and he did so, making the balance which the savings bank then had on deposit in the defendant bank $4,744.29. There was then owned by the defendant bank a past-due note of $5,000 on which the savings bank was liable as indorser, and Julsrud, by direction of TIanitch, asked Landswick for a check .for the amount of the deposit balance to apply on this note, and, upon Lands-wick’s objecting to this, Julsrud told him they would charge it up on the note, and Landswick then gave a check for said sum of $4,744.29, which was all the cash which said savings bank bad, except about $200 in change. Hanitch afterwards sent Julsrud to Landswick to get additional collaterals and securities for tbe indebtedness owing by tbe savings bank to tbe defendant bank, and Julsrud told Mr. Landswick of the order and request of Hanitch, and told him that be understood that tbe savings bank was goiug to be closed up in tbe morning, and thereupon Landswick allowed Julsrud to take tbe envelope containing the collaterals and assets of the savings bank, and Julsrud looked them over and selected a large number of notes, bonds, and collateral securities, being tbe same involved in this action, and gave a receipt therefor, as collateral security to the indebtedness of tbe savings bank to tbe defendant bank. At tbe time of this transaction tbe savings bank was, and still is, indebted to tbe defendant bank to an amount exceeding tbe value of said securities, and tbe defendant bank claims to bold said securities as collateral security therefor, and for no other purpose, and after tbe delivery of said securities the savings bank still bad assets of tbe face value of more than $20,000. Landswick paid no attention to tbe transaction, and did not know what papers were taken by Julsrud.</p> <p>These transactions all took place about 5 o’clock in the afternoon, and about 8 o’clock in tbe evening Hanitch stated to the plaintiff that tbe savings bank was going to be put in the bands of a receiver, and upon tbe following morning action was commenced by the defendant bank, Mr. Hanitch being one of tbe attorneys, against tbe savings bank to wind up its affairs, and an answer was put in by tbe savings bank, conffessing the allegations of tbe complaint, which Lands-wick signed and verified at tbe request of tbe plaintiff’s attorneys, and upon the same day tbe plaintiff in this action was duly appointed receiver of tbe savings bank, and was duly authorized to prosecute this action. Tbe assets of tbe savings bank, including those so taken, will not pay fifty cents on tbe dollar of its liabilities, other than tbe claims of the defendant bank. Demand for tbe return of said funds and property was duly made by tbe receiver before tbe commencement of this action. At tbe time of tbe turning over of tbe collaterals and tbe $800 in cash Landswick knew that the savings bank could not continue business, and tbe officers of tbe defendant bank had determined to close up tbe savings bank and have a receiver appointed on tbe following day, and they took said money and collaterals in contemplation of such action. Said money and collaterals were obtained from Landswick by reason of tbe intimate relations of said banks and on account of the control the officers of said defendant bank bad over tbe officers and affairs of tbe savings bank, and tbe said acts were in fraud of other creditors of the savings bank, and tbe reason Landswick allowed such transfers to be made was that be always acted under tbe direction of the officers of tbe defendant bank, and understood it to be bis duty so to do.</p> <p>Upon these facts, tbe court concluded that the defendant, should surrender up all of said securities, and pay to the-plaintiff tbe said sum of $4,144.29, with interest from February 12, 1897, and entered judgment in accordance with these conclusions, from which tbe defendant appeals.</p>

<p>Appeal from a judgment of tbe superior court of Douglas county: Chahles Smith, Judge.</p> <p>This is an action to recover damages for injuries received by plaintiff's running over an embankment at the intersection of Sixth street and Gatlin avenue in the city of Superior, while riding in a buggy drawn by a single horse. The main defense was that the horse was running away, and that plaintiff was guilty of contributory negligence. The jury brought in a general verdict for plaintiff, assessing his damages at $500, and also answered two questions submitted by the court to the effect that the horse in question was under plaintiff’s control at the time of the accident, and that he was not chargeable with contributory negligence. The court denied a motion for a new trial, and the defendant appeals from the judgment entered upon the verdict.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: A. J. YiNJE, Circuit Judge.</p> <p>This action was brought by the plaintiff to adjudge a deed absolute in form of certain lands to be a mortgage, and to redeem said lands from the lien of the alleged mortgage. The complaint alleged that the real estate in question was sold and conveyed by Moses M. Strong, deceased, the defendant’s testator, on the 10th day of April, 1890, for the sum of $1,600, •of which sum $600 was paid in cash on the date of the deed, to wit, April 10, 1890, and for the remaining $1,000 notes were given, payable one and two years, respectively, secured by a mortgage upon the lands; that the first note of $500 was paid when due, but that the second was not paid, and that on the 10th day of August, 1896, a foreclosure of the mortgage being threatened, he executed and delivered to the defendant a warranty deed of the lands, and the defendant at the same time executed and delivered to him a written agreement for the reconveyance of the said lands on payment of the principal and interest then due, and all unpaid taxes on the premises, within one year; and that said deed and agreement were intended to be, and in fact constituted, merely a continuation of said original mortgage; that no consideration was paid by the defendant for said deed, and that the plaintiff’s note and mortgage are still.retained by the defendant and have never been discharged, and that the value of said lands is about the sum of $2,000, and the amount remaining unpaid on the mortgage, including the taxes, does not exceed $900; that the plaintiff is willing and desirous of redeeming said lands from said mortgage, and paying the sums due, but that the defendant refuses to accept said moneys, and threatens to sell and convey the premises, claiming that she has absolute right so to do.</p> <p>The answer admits the original sale of the premises, and the giving of the notes and mortgage thereon by the plaintiff, and the default in the payment of the last' note, and alleges that on August 10, 1896, it was agreed between the parties that the plaintiff should execute a warranty deed to the defendant of the mortgaged lands, and the defendant should execute a contract back for reconveyance of said premises, upon condition that the amount of principal, interest, and taxes then due be paid by the plaintiff on or before August 10, 1897; that such deed was executed and delivered, and the contract or option for reconveyance of the lands was also executed and delivered, on or about August 10, 1896, which contract provided that on payment of $861.79 on or prior to August 10,1897, the defendant would convey the lands in question to the plaintiff, but that said agreement contained no undertaking on the part of the plaintiff to pay such sum, but provided that, if it were not paid within the time limited, the agreement should be void; that the value of the said lands at the time of said agreement did not exceed $500 or $600, and that it was understood and agreed that the note and mortgage, and all indebtedness secured thereby, were paid, and discharged by said conveyance, and that the only right the plaintiff would thereafter have in said premises would be the right to the reconveyance thereof if he paid $861.79 on or before August 10, 1897; that the plaintiff did not demand the conveyance of said premises, nor offer to pay the said sum, on or before -said last-named date, but failed and neglected to do anything to carry out said agreement, and that she has been ready at all times to surrender up the note and mortgage, and satisfy and discharge the same of record.</p> <p>The plaintiff moved for judgment upon the pleadings according to the prayer in his complaint, which was granted, and the defendant appeals.</p>

<p>Appeal from a judgment of the circuit for Douglas county: A. J. YiNje, Circuit Judge.</p> <p>Action to avoid a tax of $1,231.08 levied on lands of the plaintiff by the proper officers of the city of Superior, Wisconsin, in the year 1895. The tax was contested under sec. 1038, R. S. 1878, exempting from general taxation the property of railway companies necessarily used in operating their roads. In 1888 a tract of land 300 feet wide and about 5,500 feet long, containing 38.568 acres, lying at right angles with, and extending about 1,700 feet into, the bay of Superior and to the dock line thereof, was conveyed to the president of the plaintiff corporation in trust for its use solely to meet future needs for railway and water traffic. In 1893 the land was conveyed to plaintiff and it has ever since owned and held the same exclusively for contemplated use for terminal facilities for its line of road. It has no other terminal facilities for its railway system at the head of the lakes. Such facilities are necessary to a complete railway system in order to enable the corporation to handle business at its western terminus. Except as hereinafter stated, the entire tract of land mentioned, at the time the tax was levied, was vacant and unoccupied, and it had been that way since its acquirement by the corporation, though all the time held in good faith for terminal facilities for plaintiff’s road. Plaintiff has all the time contemplated improving and using the land as soon as its financial circumstances would reasonably permit. The use of the land in 1895, when the tax was levied, was necessary for the most convenient and profitable operation of plaintiff’s railway system and the conduct of its business, but lack of funds interfered with its preparation for such use and has operated the same way ever since. At the time of the trial, which was three years subsequent to the levy of the tax, plaintiff was still uncertain as to when it would be able to improve, occupy, and use the land. Since 1893 a small strip of land about 120 feet wide and about 1,500 feet long, containing 3.898 acres, lying in the southwest corner of the larger tract, has been partially occupied and used, there being three railway tracks along the westerly side thereof and a roundhouse near the south end. Such small parcel of land is of ample size for all the improvements located thereon, it being actually occupied for only about one third of its width except at the extreme south end. The tax in controversy was levied upon that portion of the land wholly unoccupied down to the time of the trial. The court below, on the foregoing facts and others showing that the contemplated terminal facilities for which the land was acquired were a necessary adjunct to plaintiff’s railway system in order to enable it to fully perform its duties as a transportation corporation at the time the tax was levied, though not actually so used because of the financial condition of plaintiff, held as a matter of law that the land was exempt from taxation and rendered judgment accordingly, from which this appeal was taken.</p> <p>When the appeal was called for argument in this court a motion was made to dismiss, based on ■ an affidavit of the county clerk and one by an employee in the county clerk’s office to the effect that there were no proceedings of record directing or authorizing the appeal, and that in their judgment no action in that regard was ever taken by the county board; also an affidavit by one of the attorneys for respondent, to the same effect, made on information and belief. The motion was opposed by affidavits of seven of the members of the county board to the effect that the subject of taking the appeal was discussed by the members of the board in session September 26, 1898; that it was determined at that time that such appeal should be taken, subject, however, to the wishes of the officers of the city of Superior, where the land was located, and that the matter was' referred to the finance committee with power to carry out the views of the board. There was an affidavit by the chairman of the finance committee to the effect that, pursuant to the action of the county board had as stated, such committee consulted with the officers of the city of Superior and directed Mr. H. H. Grace to appeal the cause to this court. There was also an affidavit by Mr. Grace and one by Mr. Sloan, the district attorney corroborating the affidavit of the chairman of the finance committee, and to the effect that the appeal was taken pursuant to the committee’s direction. There was also an affidavit by the city attorney of the city of Superior to a similar effect.</p> <p>To the point that the lands in question were exempt from taxation, they cited Stats. 1898, sec. 1038, subd. 14, and secs. 1211 and 1212; Milwaukee dé St. P. P. Go. v. Orcmford Go. 29 Wis. 116; Mikoimkee da St. P. P. Go. v. Milwcmkee, 34 Wis. 271; Ramsay Go. v. O., M. da St. P. P. Go. 33 Minn. 539; Lewis, Eminent Domain, §§ 279, 393; 6 Am. & Eng. Ency of Law, 540, 54L; In re Staten P. T. Go. 103 N. T. 251; Chicago, St. P., M. dé O. P. Go. v. Bayfield Go. 87 Wis. 188; Worcester v. Western P. Gory. 4 Met. 564; Matter of Mew York O. da H. P. P. Go. 77 N. Y. 248; Ford v. O. dé M. W. P. Go. 14 Wis. 609; Chicago, M. dé St. P. P. Go. v. Gramford Go. 48 Wis. 666; United M. I. P. dé G. Go. v. Jersey Oily, 55 N. J. Law, 129; Trinity Olvurch v. Boston, 118 Mass. 164; Northern P. P. Go. v. Garland, 5 Mont. 146; Fisher v. Farmers’ I. dé T. Go. 21 Wis. 73; Pkcnkett v. M., S. S. M. da A. P. Co. 79 Wis. 222; Grosse v. G. da N. W P. Go. 91 Wis. 482; Mills dé Le O. L. Go. v. G, St. P., M. da O. B. Go. 94 Wis. 336.</p>

<p>c Public parle: Dedication in pais: Acceptance: Evidence: Curative statutes.</p> <p>1. In 1888, lands, then in the possession off the person by whom they were afterwards entered, were by him platted before they were thrown open to entry. This plat was never recorded but was published by exposure in the most public places. After entry a new plat, substantially like the first, was made, acknowledged, and recorded. In both plats there was an úninclosed space over which streets were not continued, the ends of the streets debouching thereon not being closed by lines. On the earlier plat the space was designated as “ Mechanics’ Green ” and on the later plat it was unmarked by any designation. The owner made numerous conveyances according to the earlier plat, and frequently therein referred to the space designated “Mechanics’ Green,” and some parcels conveyed were described as bounded thereon. During the owner’s life time, he participated in a Fourth of July celebration held thereon, which was preceded by clearing off the brush on .the vacant space by the public. He died in 1842. Thereafter, almost ■every year, some act of improvement, including fencing in 1866, was performed by the community, through public subscription, or by the municipal authorities. These premises were never assessed for taxation. Nearly fifty years after the recording of the later plat, plaintiffs, grantees of the heirs of the original owner, attempted to gain possession of, and built a fence around, the vacant grounds, which was hnmediately torn down by the city officers: and thereupon this action of ejectment was brought. Held, that the evidence showed a deliberate appropriation of the tract in question by the owner, for public uses, by acts and conduct indicating such intent, followed by public user and acceptance; and that said tract had thereby been dedicated for use as a public park, defendant holding it in trust for such use.</p> <p>2. A plat of lands, whether or not effective as a conveyance, is admissible in evidence, by its record, under sec. 22166, Stats. 1898.</p>

<p>Appeal from an order of the circuit court for Rock county; John R. Bennett, Circuit Judge.</p> <p>The facts are stated in the opinion.</p>

<p> Appealable order. </p> <p>An order entered in accordance with the directions and mandate of the appellate court becomes, in effect, the order of such court and is not appealable.</p>

<p>Appeal from an order of the circuit court for Ozaukee county: James J. DioK, Circuit Judge.</p> <p>The complaint, by appropriate allegations, sets forth the existence of the following facts as ground for equitable relief: June' 17, 1889, defendants and one Eobberpuhl, then the owners of a tract of land particularly described, located within the corporate limits of the duly incorporated city of' Cedarburg, this state, part of which premises was a duly laid out and platted cemetery for the burial of the dead, established as such by defendants’ grantor prior to April 30,1881,, laid out, platted, and mapped the balance of the land as cemetery grounds for burial purposes, and duly recorded the map so as to establish the cemetery according to law without the consent of the municipal authorities of said city. The newly platted premises were at the outset, ever since have been, and are now within 200 rods of many lots with dwelling houses located thereon situated in the platted portion of the said city of Cedarburg, and the same is separated only by a highway from a forty-acre tract of land, owned by plaintiff for upward of ten years and occupied by him and his family as a homestead. The value of plaintiff’s land has been greatly diminished by the newly established cemetery, which damage will be increased and be rendered permanent if the design of defendants shall be fully carried out. Dobberpuhl, before the commencement of the action, conveyed all his interest in the premises to defendants and they are now the sole owners thereof. No part of the newly platted land has yet been used for burial purposes. It has been, up to this time, used for agricultural purposes, but defendants are about to inclose, improve, and devote the same to the platted design and will do so unless prevented by the court, disregarding the rights and protests of plaintiff and many other persons similarly situated, to the irreparable loss of plaintiff in the inevitable permanent impairment of the use' and value of his land. The platting and establishment, of the new cemetery grounds, and the threatened use of the same for burial purposes, constitute a nuisance and a grievance specially injurious to plaintiff. The prayer for relief is, in effect, that the cemetery established by defendants and Dobberpuhl be declared a nuisance and be abated, and the platting thereof vacated. Defendants demurred to the complaint upon the ground of insufficiency and the demurrer was sustained.</p>

<p> Wills: Undue influence: Evidence: Powers: Gosts: Stipulations. </p> <p>1. On application to admit to probate a will, it appeared, among other things, that deceased had no property or property rights except a life estate under her husband’s will, with power in trust to devise the remainder; that she was seventy-three years old, and had suffered two strokes of paralysis, the last about two years before her death; that she required constant care and attention, and her habits had changed, becoming careless and slovenly; that her mind had become weakened and enfeebled, and she was unable to talk con-nectedly and was given to intoxication; that about six months before her death application was made to place her under guardianship, which was denied, the three devisees under the will opposing the proceedings. The will named three of twelve children as dev-isees and was made after the refusal of the court to appoint a guardian. None of the children, except one devisee with whom she lived, knew of its execution, although some of them lived in close proximity to his residence. Held, that findings that the mind of deceased was weakened, and that she was induced to execute the will by undue and improper influences, were sustained by the proof.</p> <p>2. Although the parties have stipulated that the costs and disbursements of both parties be paid out of the estate attempted to be devised, where it appears that the dominion of the deceased over it had ceased at her death and lapsed by her failure to execute the power, the court is without power to enter judgment as stipulated.</p> <p>3.' "Vyiiether in the absence of an express stipulation there is any statutory authority for the supreme court to direct payment of the attorneys’ fees and expenses of both parties generally out of the estate in litigation, qucere.</p>

<p>Appeal from a judgment of the circuit court for Dodge county: Jajaes J. Dice, Circuit Judge.</p> <p>One Anthony Derse, on July 23, 1895, died testate, leaving real estate, consisting of 145f- acres of land in Dodge county. The material part of the will is as follows: “First. After the payment of all my just debts and funeral expenses, I give, devise, and bequeath to my beloved wife, Catherine Derse, ail the rest and residue and remainder of my estates, both real and personal, and to have and to hold the same for her own personal use and benefit, for and during her natural life, to all intents and purposes as if she had been the original owner. Second. I give unto my wife, Catherine Derse, the full and sole control of all my estates, both real and personal (if she should survive me), the right to devise and bequeath to the several members of my family in shares as she may see fit, at the time of making her last will and testament, to all intents and purposes as I could have done.”</p> <p>In the probate proceedings upon that will the county court, by order of July 21,1896, ordered and adjudged “ that all of the above-described real estate be, and the same is hereby, assigned and set over to the said Catherine Derse, widow of the said deceased, to have and to hold the same unto her, her heirs and assigns, according to the last will and testament of said deceased.” The widow occupied the land up to the time of her death, on May 20, 1891, but. shortly before her death made a deed of 65|- acres of the said land to the defendant. She died intestate. The children, constituting the family of the deceased Anthony and Catherine Derse, were twelve in number, eleven of whom are the plaintiffs, and the twelfth the defendant. All are of full age and sui juris. The prayer of the complaint is for construction of the will and adjudication that Catherine Derse’s interest was a life estate, coupled with an imperative trust or power to dispose of the same by her will amongst the children, and, she having failed to execute such trust or power, that the court carry out the same, and adjudge said real estate to the parties to this action in equal twelfth shares. Judgment was rendered to that effect, from which defendant appeals.</p>

<p> Partnership: Restriction on equality of rights: Contracts: Interpleader: Interest. </p> <p>1. Plaintiff, a manufacturer of iron bridges, and C. entered into the business of-taking contracts for and building bridges in designated territory. Among other things it was provided by the written memorandum constituting their contract that each was to contribute to the business a measure of capital and labor; the manufacturer was to supply the manufactured iron, and also its skill and labor in preparing plans and specifications and estimates of cost, and to aid, if required, in erecting the bridges; C. was to furnish all other material, the hired labor necessary for its transportation and erection, and his own labor in attending biddings, soliciting and closing contracts, and in erecting the bridges. The contracts were to be 'taken at not less than a fair percentage of profit added to estimated cost, to be made payable to the manufacturer, and sent it for acceptance. Each had a practical veto upon the taking of contracts. After charging up at cost all material and labor the balance of the proceeds was to be divided equally between them, but no provision was made for the sharing of losses. Held, that the agreement constituted them partners in the business in which they were engaged.</p> <p>2. In this agreement there was no restriction on equality of rights as between the partners, except that all contracts should be taken in the manufacturer’s name, and be payable to it or its order. Before the commencement of the action C. received from a town an order, payable to plaintiff by name, for the price of a bridge erected under their agreement, which he indorsed to the defendant bank. Action being brought by the manufacturer against the town on the contract for the erection of the bridge, the bank was interpleaded and the money due from the town paid into court. Held, that under their agreement C. was not restricted in the right to collect indebtedness and to exercise the ordinary powers of a partner over joint assets; that the delivery to him of the town order was a compliance with the bridge contract; that the transfer of the order to defendant bank was effective; and that payment thereof to the bank would discharge the debt sued on.</p> <p>S. In addition to ordering the money in court paid over to the bank, the court also gave judgment in favor of the bank, and against plaintiff, for the interest which would have been earned by such money between the time of its deposit and the rendition of judgment. Held, that such part of the judgment was erroneous.</p>

<p>Gorporations: Conspiracy: Ultra vires: Judgments: Fraud and mistake: Remedies: Promoters: Joinder of causes of action: Pleading.</p> <p>' 1. A corporation may be held liable as a party to a conspiracy to defraud in a transaction outside the scope of its charter, and a complaint against it and its co-conspirators to enforce such liability, charging that the corporation and its co-defendants made and consummated the fraudulent agreement, is not defective on demurrer for want of allegations as to who acted for the corporation in making such agreement and as to special authority having been given by its governing body in regard to the subject.</p> <p>2. If a corporation obtain a wrongful advantage of another in respect to a transaction outside its corporate powers, it cannot shield itself from liability to remedy the wrong by the doctrine of ultra vires.</p> <p>3. Ordinarily, as to executed matters, the doctrine of ultra vires is an instrument to be used only by the state to punish a corporation for violating its charter, not by the corporation itself, or an individual, to aid in perpetrating or perpetuating a wrong.</p> <p>4. The doctrine that relief from the inequitable use of a judgment must be sought by a motion in the action wherein the judgment was rendered, applies only where the time limited by statute for opening the judgment has not expired, or the court had no jurisdiction to enter it, or the time limited by statute for opening the judgment has expired and there is no fault in the judgment itself, the complaint being solely as to its inequitable use.</p> <p>5. A judgment free from jurisdictional defects cannot be relieved against on the ground of fraud or mistake going to the judgment itself after the term when rendered and the time prescribed by-secs. 2833, 2879, Stats. 1898, except’ by an independent action in equity brought in the same court.</p> <p>6. If several persons unite to promote the organization of a corporation and thereafter defraud it out of its assets for their benefit, part of the scheme being that some of the promoters shall be the active parties and take stock in and become officers and obtain control of the corporation, and thereafter while ostensibly acting in its interests carry out the fraud, and the scheme be fully consummated, one of the conspirators being a corporation, all are equally liable to-make good to the defrauded corporation the loss caused to it, with-. out reference to how the fruits of the fraud may have been divided, and an action will lie in the name of the injured corporation against the wrongdoers to compel an accounting of their ill-gotten gains and restitution thereof.</p> <p>7. The test of whether there is more than one cause of action stated in a complaint in an equitable action is whether there is more than one primary right sought to be enforced or one subject of controversy presented for adjudication.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeal from, a judgment of the circuit court for Waukesha county: Jahes J. Dice, Circuit Judge.</p> <p>Action for specific performance of contracts to convey lands. Henry W. Albertz was the owner of a farm of 220 acres near Oconomowoc, in Waukesha county. Plaintiff was the owner of a saloon building and contents in the city of Waukesha. On August 25, 1897, Albertz and wife made a written contract in which they agreed to convey to plaintiff their said farm and certain personal property for the sum of $22,000, to be paid as follows: $14,000 by a conveyance to them of plaintiff’s saloon property, and $8,000 in cash, “on or before ten days after date.”. At the same time plaintiff and wife made a written contract in which they agreed to convey the saloon property, and a stock of liquors described, to Albertz for the sum of $14,000, to be paid as follows: “ One dollar at the execution and delivery hereof, and the balance to be paid by the execution and delivery by the parties of the second part to the party of the first part of his farm in sections 35 and 36, in the town of Oconomo-woc, pursuant to the terms of a certain contract by and between the parties hereto of this date, on or before ten days after this date.” Both contracts contained a clause that “ it is distinctly agreed and understood, by and between the parties hereto, that if the said party of the second part should fail to make any of the payments of purchase money ■above specified, at the time and in the manner above speci-fled, in such .case this agreement shall be henceforth utter] y void,” etc. Neither party made or tendered performance of the contract within the time specified. Plaintiff thereafter commenced this action. In his complaint he set up the two-contracts, and alleged the performance of the conditions therein on his part, and the tender of the deed and money mentioned, and the refusal of defendants to accept the same or to execute the deed of their farm. The defendants answered separately. The defendant husband, among other things, alleged that plaintiff fraudulently represented his property to be worth the sum of $14,000, when it was not; that the defendant came from insane stock; that his mind was weak and unsettled, and easily misled and deceived; that he was given to the excessive use of intoxicating liquors; that he was wholly unfit and incompetent to enter into said agreements; that his farm was heavily incumbered, to plaintiff’s, knowledge; and that being unable, within the ten days, to clear the title, he was unable to carry out the contract. The answer of the wife covers substantially the same ground.</p> <p>A trial was had, and the court decided that the plaintiff Avas entitled to specific performance. The testimony not being clear as to the amount and character of the liens upon defendant’s farm, he then made an order of reference to ascertain the facts. The referee reported that there were mortgages and liens against the property to the amount of $13,512.73, and a life annuity of $15 for the support of an insane brother of the defendant Henry. Upon the coming in of this report, the court made findings to the effect that the contracts in question had been duly executed and delivered; that the plaintiff had performed the conditions on his part; that he had tendered a deed of his premises, and also stood ready to make the cash payment of $8,000; that defendants refused to carry out the contract on their part without cause' or justification; that plaintiff was ready to deliver his deed and pay the money Avithin the ten days provided in tbe contract, but that it was never demanded; that time was not of the essence of the contracts or made so-by express agreement, but performance was delayed by defendants by one excuse and another purposely, and they led the plaintiff to believe they would perform until after the ten days had expired; that plaintiff made no fraudulent rep. resentations as to the value of his property; that the defendant Ilervry was not incapacitated to make the contract; that there was no mistake or misrepresentation as to the value of the property, but that the values placed in the contract were first suggested by Albertz; that the $8,000 cash payment was deemed to be the difference between the values of their respective properties; that all of the liens and mortgages were due and payable except one mortgage of $3,140, and that suit had been commenced to foreclose all of the mortgages except one. As conclusions of law, the court found plaintiff entitled to specific performance; that, upon payment of the liens and mortgages mentioned, he was entitled to a lien back on the premises he was to convey for $5,572.73, and interest from June 24,1898, and to secure the payment of the $75 annually mentioned. A judgment entered pursuant to these findings is sought 'to be reviewed on this appeal.</p>

<p>Appeals from judgments of the circuit court for Oneida county: Chas. Y. BaedeeN, Circuit Judge.</p> <p>The facts are stated in the opinion.</p> <p>contended, inter alia, that knowledge obtained by the board of review may be treated as evidence on which they could properly change the valuations of the assessor. Hixon v. Oneida Go. 82 Wis. 515; T. B. Scott L. Co. v. Oneida Co. 72 Wis. 158; McIntyre v. White Creeh, 43 Wis. 620; State ex rel. Smith v. Gaylord, 73 Wis. 306. The court cannot properly weigh the evidence produced before the board of review or substitute its judgment for that of the board on questions of values. Steele v. Dumha/m, 26 Wis. 393; Mil-waulcee I. Co. v. Sehubel, 29 Wis. 444; Fond du Laó W. Co. v. Fond du Lae, 82 Wis. 322; State ex rel. Smith v. Gaylord, 73 Wis. 306. The court could not grant the relief prayed without requiring a reassessment. Seo. 12105, R. S. 1818; Mills v. Gleason, 11 Wis. 491; Warden v. Fond du Lao Go. 14 Wis. 621; Smith v. Smith, 19 Wis. 619; Fean v. Borsehmius, 30 Wis. 241; Marsh v. Gla/rk Go. 42 Wis. 512; Single v. Stet-tin, 49 Wis. 641; Plwmsr v. Ma/rathon Go. 46 Wis. 163; Flanders v. Merrimack, 48 Wis. 568. The judgment of the trial court did not require the payment of plaintiffs’ equitable share of the legal tax. Marsh v. Clark Go. 42 Wis. 502; Flanders v. Merrimack, 48 Wis. 568. Payment of interest should be required as a condition of relief. Arnold v. Jwnea/u Go. 43 Wis. 621; Hixon v. Eagle Fiver, 91 Wis. 649.</p>

E. Bailey, Circuit Judge. On June 21, 1893, the plaintiff and another entered into a building contract with the defendant Anna E. Earlier tO' erect a store and office building in the city of Eau Claire-upon premises belonging to her. The contract and specifications were prepared by architects, and were in great detail.

W. Helms, Circuit Judge. Appeal from order of tbe circuit court denying tbe petitioner’s motion to dismiss tbe petition in condemnation proceedings.

G-. Siebeoiíeb, Circuit Judge. The facts are stated in the opinion. ' To tbe point that tbe action could not be maintained on both an offer and upon a consummated agreement, but must be maintained if at all on tbe final agreement, they cited Wis. F. <& M. Ins. Go. Bank v. Willem, 95 Wis.

Appeal ' from a judgment of the circuit court for Dane county: R. G-. Siebeoeer, Circuit Judge. This is an action for divorce upon the ground of cruel and inhuman treatment.

G-. SiebeoKer, Circuit Judge. Five successive yearly licenses iyere issued by the insurance-commissioner to the defendant to carry on in this state the business of accidental insurance according to its authorized plan as exhibited to such commissioner. The first license was dated April 29, 1891, and the last February 18, 1895.

Dice, Circuit Judge. The plaintiff in this action is a son of the defendant, and the defendant in March, 1891, was about sixty-four years of age.

<p> Special assessments: Gas and water connections: Equity: Substantial compliance with statute: Notice: Jurisdiction: Constitutional law. </p> <p>1. Unless a literal compliance, in regard to mere matters of form in the imposition of special taxes and local assessments, is expressly required by statute, failure in that regard will not warrant the interposition of a court of equity, if there' has been a substantial compliance in all things designed to safeguard the interests of property owners.</p> <p>3. Under a city charter prohibiting the paving of streets in which gas and water mains were located, without first requiring connections therewith to be made and pipes run therefrom to the curb, where the common council had taken the required steps preliminary to ordering such, work done at the cost of the property fronting on the street, and by a recorded vote directed the work to proceed, it could thereafter delegate to the board of public works the mere executive duty of giving the proper notice, and causing the work to be done in the event the property owners failed to do it within the time limited.</p> <p>3. The law being ample to authorize the imposition of taxes complained of, the street having been regularly ordered paved, and plans for such gas and water connections filed and approved, the common council had jurisdiction to proceed to take all subsequent necessary steps to charge abutting property, and no notice, other than the public letting of the contract to the lowest responsible bidder, is required to fix the cost of the work as to each parcel of property.</p> <p>4 Such gas and water mains were owned, controlled, and operated by private persons under a franchise which required all necessary service pipes and connections with the mains, when ordered, to be made at a reasonable cost to the property owners served and within a reasonable time. The evidence showed that the cost of laying gas and water service pipes, from mains to the curb, was balanced by an equivalent benefit to the property fronting on the street. Held, that the charter provisions, under which taxes are imposed on such property to pay therefor, do not violate the constitutional inhibitions against taking private property for private use, or taking private property for public use without just compensation.</p>

<p>Justices’ courts: Jurisdiction: Certiorari: Docket entries: Adjournments: Appearance of parties: Waiver: Signing judgment: Prer sumption: Dating judgment.</p> <p>1. Where a justice of the peace fails to note in his docket the place to which an action is adjourned, he loses jurisdiction and his judgment is void, hut a subsequent general appearance and adjournment by mutual consent waives such defects prior to that time.</p> <p>2. The entry in the docket “parties appeared,” in the absence of any qualifications, is a general appearance, and on the return of the justice to a writ of certiorari is conclusive, and cannot be contradicted or impeached by extrinsic evidence or by statements of the justice.</p> <p>8. On a common-law certiorari the court will only review proceedings of a justice of the peace so far as they relate to jurisdictional questions shown by the pleadings and docket entries, and will not consider questions of law arising on such entries or any questions which involve inquiry into evidence; hence if a justice adjourn the case, or enter judgment contrary to the stipulation of parties, it is an error of law that cannot be reached by certiorari.</p> <p>4. The general rule is that every reasonable presumption should be indulged to uphold the jurisdiction and proceedings of a justice; hence, in the absence of a positive statute, the failure of a justice to sign his name to the judgment entered on his docket does not render such judgment void.</p> <p>5. Where the docket. entries of a justice show the appearance of the-parties and the calling of the case on the day and hour to which it was adjourned, the proceedings on the trial in regular order, and. a statement that the defendant offered no testimony, followed by the judgment written out in full, but with no date noted in the-margin or in the body of the docket to show when the judgment was in fact rendered, it will be presumed that the judgment followed in the regular order of procedure on the day the case was-called.</p> <p>6. The failure of a justice in entering an adjournment to state the year will not deprive him of jurisdiction. The current year will be understood to have been intended.</p>

<p>Appeals from orders of the circuit court for Waukesha ■county: James J. Dick, Circuit Judge.</p> <p>■ Appeals from orders overruling demurrers to a complaint, which alleges that the defendants E. A. Chilton, as principal, and J. E. Chilton and E. S. Carr, as sureties, entered into a contract with the United States, whereby it is agreed that they will carry the mails from the stations to the post office in the city of Milwaukee from July 1,1895, to June 30, 1899, in a safe and secure manner, free from wet or other injury, in wagons of a style and design to be prescribed by the Postmaster General, and, by the fourth clause, will be accountable and answerable in damages to the United States or any person aggrieved for faithful performance by the said contractor of all duties and obligations herein assumed, or which are now or may hereafter be imposed by law in this behalf; and, further, to be so answerable and accountable in damages for the careful and faithful conduct of the person or persons who may be employed by said contractor, and to whom the said contractor shall commit the care and transportation of the mails, and the faithful performance of the duties which are or may by law be imposed upon such person or persons in the care and transportation of said mails. The same paragraph also prohibits the employment of subordinates under sixteen years of age, of bad morals, or who have not taken the oath required by law. The fifth paragraph requires contractor to discharge any driver or other employee when required by the Postmaster General, and also prohibits the carriage of parcels except as contained in the mail; and the ninth: “ To convey, whenever requested so to do, one railway post-office clerk, a substitute, or a messenger, on the driver’s seat of each wagon.” A series of general stipulations and agreements follow, providing for changes in service, and that for any failure in certain d.etails of carrying of the mails, “ or for any other delinquency or omission of duty under this contract,” the contractor shall forfeit, and there may be withheld from his pay, such sum as the Postmaster General may impose as fines or deductions; and further providing for annulment in case of repeated breaches or violations of the postal laws, and that such annulment shall not impair the right of the United States to claim damages under the contract, but such damages may, for the purpose of setoff or counterclaim, be assessed and liquidated by the auditor of the treasury for the post-office department, and that the contract is to be subject to all the conditions imposed by law and the several acts of Congress relating to post offices and post roads, — for which the government was to pay Chilton $6,666 per year.</p> <p>On February 23, 1895, the defendant Robert A. Waite, as subcontractor, and defendants Alexander McWhorter and J. A. Waite, of Waukesha, as sureties, entered into a written agreement with E. A. Chilton, wherein said Waite, together with his sureties, undertook and bound themselves “ to transport the United States mail on said route from. July 1, 1895, to June 30, 1899, at such times and upon such schedules as the Postmaster General may direct, and in full compliance with the postal-laws and regulations, and subject to, and in compliance with, all of the requirements of said party of the first part under said contract with the United States, for $4,800 per annum.”- It was agreed that liability for all fines and deductions imposed by the Postmaster General should be assumed by the subcontractor, and that, in case of any failure or refusal by the party of the second part to perform the mail service therein provided for, then the sum stipulated should become immediately due and payable to the party of the first part as liquidated damages. Upon the back of this subcontract were printed numerous provisions, described as the principal requirements of the contract between the United States and the principal contractor, to which contract such subcontract was subject. Those specifications reiterated many of the requirements as to the manner of carrying the mail; kind of wagons to be used; taking of oath by every employee; carriage of one railway postal clerk, a substitute, or messenger, on the-driver’s seat; that employees shall be over sixteen years of age, of good moral character, and able' to read and write,, and must take oath and wear regulation cap; and that the principal contractor agrees “ to be accountable in damages to the United States, or any person aggrieved, for any failure to faithfully perform the obligations assumed by the contractor, or imposed by law on him or the persons employed by him, in the care, ircmsjoortation, or custody of the-mails.”</p> <p>The complaint then goes on to allege that the plaintiff was-a railway postal clerk, required by his duty to ride from the Chicago & Northwestern Railway station, in Milwaukee, to-the post office with the mails, in defendants’ wagon, and was so riding on April 1, 1897; that on said day the defendants, failed to use in said service a first-class horse, but knowingly used, attached to said wagon, a vicious, kicking, runaway horse, unsuitable and dangerous; that they failed to have or-keep wagon, horse, and harness in good order and appearance, so as to perforin the service safely or without injury to the plaintiff, but, on the contrary, that the wagon was out-of repair, furnished with no brake, the horse was vicious, kicking, and a runaway, and unsuitable, the harness was not in good order, but old, weak, and out of repair, too large for the horse, and the holdback straps were not of sufficient-strength to be used on said wagon to keep it from running-on the horse, and were broken, and that the defendants failed to furnish a proper, safe, or competent driver for the service aforesaid, but, on the contrary, furnished a driver who was-a cripple, and wholly incompetent, unsafe, and unsuitable for the service,— all to the knowledge of the defendants; that on the way to the post office, coming to a descent in the street, the wagon, by reason of the aforesaid defects in, and unsuitableness of, said harness and wagon, and incompetency and unsuitableness of the driver, commenced to run against-the horse, which commenced to kick, whereupon the driver, by reason of his incompetency and unsuitableness, was unable to hold the horse, and carelessly and negligently dropped the reins, so that the horse was free to and did run away,, and collided with an express wagon, tipping over the' mail wagon, and injuring the plaintiff, who was in the exercise of due and proper care and diligence, and guilty of no negligence contributing to' the injury. The complaint concludes •with the allegation that said injuries were caused solely by reason of the defendants’ failure to perform and discharge the duties and obligations which they had assumed under and by virtue of said contracts. The original contractor and sureties were not served. Robert A. Waite,-the subcontractor, by himself, and his two sureties together, served separate general demurrers, which were overruled, from which orders separate appeals were taken.</p>

<p>Appeal from a judgment of the circuit court for Waukesha county: James J. Diox, Circuit Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of tbe circuit court for Waukesha county: Jaiies J. Dick, Circuit Judge;</p> <p>This is a contest as to sheriff’s fees. The plaintiff was sheriff of Wcmkesha county during the years 1897 and-1898, and seeks to recover mileage for travel in attempting to execute criminal warrants in cases where he failed to find the defendants, and hence returned the warrants unexecuted. The greater part of the travel was outside of the limits of Waukesha county. The county board disallowed the claim, and the sheriff appealed to the circuit court. Upon reference to the Honorable M. S. Griswold, county judge, testimony was taken, and he found that the action of the county board should be affirmed. The court, however, reversed the referee’s conclusion, and entered judgment against the county for the amount of the sheriff’s claim, and the county appeals.</p>

<p>Appeal from au order of the circuit court for "Waukesha county: James J. Dice, Circuit Judge.</p> <p>Appeal from an order quashing a writ of certiora/ri issued on the relation of certain taxpayers of school district No. 3, town of Pewaukee, in said county, seeking to have declared void proceedings of tbe town board of such town attempting to establish a new school district therein, known as School District No. 4, partly out of the territory of the relators’ district. The writ was directed to and served upon the town clerk, who made return thereto. The relators appealed.</p>

<p> Waters: Raising level of lake: Title to submerged lands: Estoppel: Dedication: Highways: Riparian rights. </p> <p>1. Submerged lands of meandered lakes within the boundaries of this state belong to the state in trust for public use substantially the same as submerged lands under navigable waters by the rules of the common law, and the state cannot part with such title to the detriment of such trust.</p> <p>2. The title of the state to submerged lands under the waters of navigable lakes will be extended so as to include lands covered by an artificial raising of the level of the lake, if such artificial condition be continued so long as to become the natural condition.</p> <p>3. If a person artificially raise the level of the waters of a navigable lake so as to flood his own lands, the public rights in the lake will be correspondingly extended so long as' such artificial condition exists.</p> <p>4. If a person flood his own land by artificially raising the level of the waters of a navigable lake and maintain that condition for more than twenty years, and the public use and enjoy the lake in such new condition, the title to such lands, so far as necessary to maintain such condition, will vest in the state by dedication. In such circumstances the artificial condition of the lake will be considered its natural condition, with all the incidents thereof.</p> <p>5. If a public street or highway exists so that its boundary line and the waters of a navigable lake meet, the riparian rights incident to the land composing the street belong to the public. In such a situation there is no zone of private right between the street and the lake, but the public right is continuous from the street to the waters of the lake and from the waters of the lake to the street. [Syllabus by MARSHALL, j.]</p>

<p>(1) Appealable order. (2, 3) School districts: Order in anticipation of revenues: Borrowing money.</p> <p>1. An order sustaining a demurrer is appealable, although it also contains an order denying a motion to strike out the demurrer as frivolous.</p> <p>2. School orders, which by an indorsement on the back are made payable one year after date, are orders to pay out of funds which necessarily cannot be in the treasurer’s hands until after the next tax levy, and in anticipation of the revenues of the school district for the ensuing year, and as such are prohibited by the statute.</p> <p>3. Where the orders in such a case were issued in terms in payment. for material and labor, they cannot be held valid as an exercise of the power to borrow money.</p>

<p>Appeal from a judgment of the circuit court for Marinette county: S. I). Hastings, Je., Circuit Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: John K. Paeish, Circuit Judge.</p> <p>To the point that the attachment lien was prior and superior to the mortgage lien, they cited secs. 2241, 2242, 2737, R. S. 1878; Drake, Attachment, § 239; Shufeldt v. Pease, 16 Wis. 689; Hibben v. Boyer, 38 Wis. 319; Gutter v. James, 64 Wis. 173; Prielcett v. Muele, 74 Wis. 199; Bivrtv. M&rehcvnts Ins. Oo. 106 Mass. 356; Wahrenberger v. Waid, 8 Colo. App. 200; Southern B. da T. Oo. v. Folsom, 75 Eed. Rep. 929; Oa/rter v. Ohampion, 8 Conn. 549; Bigelow v. Tojpliff, 25 Yt. 288; Mcvyham v. Goornbs, 14 Ohio, 428; Gross v. Fombey, 54 Ark. 179; Bu,tler v. Bcmlc of Mazepgia, 94 Wis. 351.</p>

Paeish, Circuit Judge. Action of ejectment. The complaint was in the usual form.

Paeish, Circuit Judge. This is an action upon a promissory note executed by one S. H. Smith, and indorsed by the defendant, under circumstances hereinafter stated. Defendant is a corporation doing business at 'Weyauwega, Wisconsin. Some years ago it opened a branch of its business at Ashland, Wisconsin, under the management of Smith. Under their arrangements with him, Smith became in fact a partner in the business at that place.

<p>Appeal from a judgment of the circuit court for Ashland county: Johh E. PARISH, Circuit Judge.</p> <p>Appeal from judgment for imperative writ of mandamus to compel Bardon as mayor, and Wharton as city clerk, of Ashland to issue an order, Orogster as comptroller to countersign, and Zafréniere as treasurer to pay, the same. The petition alleges a contract between the relator and the city of Ashland to furnish certain fire hydrants with water at certain annual rates, to be paid at specified dates; the fact of the furnishing, the presentation of bill on April 2, 1898, for the sum of $6,980; that it thereupon became the duty of the city clerk to deliver the same to the comptroller for examination, for him within thirty days to mark his approval thereon, or his reasons for disapproval, and then is required submission of the same to the council for its action in allowing or disallowing it; that for sixty days after the presentation no action was taken either by the comptroller or by the city council, which sixty days expired on the 1st day of June, 1898; that on the 14th day of June, after the expiration of sixty days, and without either approval or disapproval by the comptroller, the common council passed a resolution in terms allowing said claim; that thereupon it became the duty of the respective appellants to perform the acts commanded by the mmidamus, which they refused to do upon request, although there was money in the hands of the city treasurer belonging to a specific fund for the payment of such claim. The return controverts none of the facts, but alleges as additional that the relator did, on the 20th of June, within twenty days after the expiration of the sixty days from the filing of said claim, perfect an appeal in accordance with the charter to the circuit court, which allegation was admitted by the relator. The charter of the city of Ashland on the subject of claims provides that the failure of the common council to pass upon a claim within sixty days after the presentation thereof shall be deemed a disal-lowance thereof, and that a disallowance shall be final and conclusive, and a bar to any action in any court founded thereon, except an appeal to be taken in the manner prescribed. It also provides that after a claim has been disallowed in whole or in part it shall not again be considered or allowed by the common council. The mayor and clerk are authorized to draw, and the comptroller to countersign, orders for the payment of money, only when authorized by a vote of the common council, and the treasurer is authorized to pay only upon such orders. The matter was heard and judgment rendered at Hurley on the first day of the regular term for Iron county as a special term for Ashland county.</p>

<p>Res adjudícala: Logs and lumber: License: Replevin: Raiiflcation of trespass: Reimbursement</p> <p>1. Every question decided by the appellate court on a former appeal is res adjudieata and absolutely binding, not only on the trial court but also on the appellate court.</p> <p>S. A licensee to cut and remove timber may adopt and. ratify the acts of a trespasser in cutting and manufacturing it into lumber, and replevy the lumber upon compensating the trespasser for services rendered and money expended in good faith in performing such work.</p>

Paeish, Circuit Judge. This is an action to recover for work and labor performed by the plaintiff for the defendant as superintendent of the defendant’s lumber and sawmill business at Morse, Wisconsin. The action was referred to a referee to hear, try, and ■determine. It appeared by the evidence that the plaintiff commenced to work for the defendant June 20, 1887, as superintendent of the defendant’s business at Morse, Wisconsin.

<p>Appeal from a judgment of the circuit court for Ashland county: John K. Palish, Circuit Judge.</p> <p>Application for a writ of mandamus requiring the defendant, as city clerk, to carry out in the tax roll the amount of relator’s judgment. The petition showed that the relator obtained a judgment against the city of Ashland on October 1,1897; that on the 30th of that month a transcript was filed with the city clerk, with the proper affidavit of nonpayment; that on. November 25,1898, another affidavit to the same effect was filed; and that the city clerk neglected and refused to insert the amount of the judgment in the tax roll. An alternative writ was issued, to which the clerk made return that the common council made the annual tax levy on November 19, 1898, and made no provision for, and did not include, the said judgment in said levy; that the levy made by the council for the necessary maintenance and operation of the city government amounted to two per centum of the value of all taxable property in the city; and that the judgment mentioned was based upon a contract made at a time when the city charter fixed a- maximum limit of taxation for all purposes at two per cent, of the valuation of the property therein. The return was demurrer to and sustained. The defendant elected to stand upon his return, and a peremptory writ was issued as prayed for. Defendant appeals.</p> <p>To the point that it was illegal to levy taxes in excess of two per cent, of the valuation of the taxable property to pay a judgment arising out oE the contract, they cited sec. 1, subch. XY, ch. 2?, Laws of 1889, as amended by sec. 6, ch. 103, Laws of 1891; 2 Dillon, Mun. Corp. (4th ed.), § 169 and note; East St. Louis v. TJ. S. ex rel. Zebley, 110 U. S. 321; Olay Go. v. MoAleer, 115 U. S. 616; Stewart v. Jefferson Police Jwry, 116 U. S. 135; "Weber v. Traubel, 95 Ill. 427; U. 8. ex rel. Lea/rned v. Bmivngton, 2 Am. L. Reg. (N. S.), 394; Wattles v. Lapeer, 40 Mich. 624; Burnes v. Atchison, 2 Kan. 454; Glarlc v. Davenport, 14 Iowa, 494; Goffin v. Davenport, 26 Iowa, 515; Lowa Lt. L. Go. v. Sao Co. 39 Iowa,.124; Valparaiso v. Gardner, 97 • Ind. 1, 49 Am. Rep. 416; Porter v. Thomson, 22 Iowa, 391.</p>

<p>ERROR to review a judgment of the circuit court for Marathon county: Chas. Y. Bardeen, Circuit Judge.</p> <p>The defendant on a "Wednesday or Thursday in November hired from a liveryman a team to send for his daughter, ashing for a quiet team as he wanted to send his son, about fourteen years old. He at the same time notified the liveryman that he should want a team on Sunday to take his daughter back to her school. The son went, and brought home his sister. On Saturday the father telephoned the liveryman that he would not send his son back with the sister, as it was too cold, but would go himself, and directed him to send the team to his (the father’s) meat market at 9 o’clock Sunday morning. On Sunday morning one Po-ronto, who was teaching school in .the same vicinity as the defendant’s daughter, went to the livery stable, and said that he would take the team which defendant had ordered, as he had arranged to ride out with them, arid that the son would go with them and bring the team back. He was accordingly given the team by the liveryman, went to defendant’s house, got the son and daughter, and started off, all without any knowledge or consent on the part of the defendant, who, being disappointed by the nonarrival of the team at his market, telephoned to the liveryman, and learned that Poronto had called for it, whereupon he hastened to his house in order to prevent his son’s going, hut was too late, the party being a mile away by that time. On the way back the young man experienced an accident, the front wheels coming out from under the buggy and breaking the kingbolt, when he was still about ten miles from home. He thereupon ran the buggy just as far out on the side of the road as he could, so that the nearest part of it was somewhere from nine to twelve feet from the nearest traveled track, and went home without it. On his son’s arrival the defendant telephoned the liveryman of the fact of the breakdown, and inquired if the liveryman would send for the disabled buggy, or wished him (the father) to do so. The liveryman said he would. On the Wednesday following, the plaintiff, driving a span of horses which he had had four or five weeks, and which he testified were well broken and gentle, but which numerous other witnesses testified were skittish, and one of them greatly given to shying and wheeling out of the road at any unusual object, was driving on the road where the buggy was. It had been changed from its natural posture, right side up, in which the son left it, so that the dashboard was up in the air and the top rested on the ground. The horses shied and threw plaintiff out, and then ran away, causing some damage. It was proved that the buggy was of the most ordinary type, such as was commonly driven throughout that neighborhood. The liveryman estimated that there were a thousand practically like it in Wausau, and that nearly every farmer had one.</p> <p>A verdict was rendered for the plaintiff upon the first trial, which the court set aside, granting a new trial. Upon the second trial the court ordered a verdict for the defendant. Appellant assigns as error both the granting of a new trial and the ordering of a verdict for the defendant on the second trial.</p>

<p> Pleading: Trespass or trover f Conversion: Damages: Evidence: Variance: Logs and lumber: Notice. </p> <p>1. A complaint, alleging that the defendant unlawfully and with force broke and entered' on plaintiff’s lands and cut down and carried away trees and timber and converted and disposed of the same to his own use, states a cause of action for trespass, and not in trover, and in the absence of all proof connecting him with cutting the timber or entry on the land, a nonsuit should be granted.</p> <p>2. In such complaint the allegation of the conversion-by the defendant is but a statement of damages consequent to the illegal entry on the land, and while evidence of conversion is proper to show such damages, it alone is not sufficient to prove the substance of the cause of action alleged.</p> <p>S. The admission of evidence of the conversion without objection for variance would not entitle the plaintiff to judgment therefor, since such evidence was admissible, under the complaint, to show consequential damages.</p> <p>4. Under sec. 4269, R. S. 1878, the purchaser of logs from the original wrongdoer is not liable, without allegation and proof that he had notice of the unlawful cutting, or connecting him with the original wrongdoer.</p>

<p>Appeal from a judgment of tbe circuit court for Mara-thón county: W. 0. SilvebthoeN, Circuit Judge.</p> <p>They argued, among other things, that the rule requiring the master to furnish his servant with reasonably safe machinery and appliances does not apply to a common and simple implement such as an ordinary lumber wagon, especially in the hands of an experienced servant having as much knowledge of the ' . & character of the implement and its use as the master himself. Ma/rsh v. Chiek&ring, Í01 N. T. 396; Cahill v. IRlton, 106 N. Y. 512; Meador v. L. S. & M. S. B. Co. 138 Inch 290; Borden v. Daisy B. M. Co. 98 Wis. 407; Holt v-. G., M. do Bt. P. B. Co. 94 Wis. 596; Coreorcm v. Milwaukee C. L. Co. ■81 Wis. 191; Bailey, Personal Injuries, §§ 8, 9, 11, 13; Georgia B. de B. Co. v. Nelms, 83 Ga. 70; Burlington <& C. B. Co. v. IÁéhe, 17 Colo. 280. Plaintiff was guilty of contributory negligence as a matter of law. Holt v. O., M. dé St. P. B. Co. 94 Wis. 596; Borden v. Daisy B. M. Co. 98 Wis. 407; liasen v. West Superior L. Co. 91 Wis. 208; Casey v. C, St. P., M. de O. B. Co. 90 Wis. 113; 'Soutar v. Minneapolis 1. K Co. 68 Minn. 18; Wedgwood v. C. do N. W. B. Co. 41 Wis. 478; Kelly v. Abbott, 63 Wis. 307; Colts v. M., L. S. <& W. B. Co. 76 Wis. 136; Ballou v. C. do N. W. B. Co. 54 Wis. 257; Behm v. Armour, 58 Wis. 1. The negligence shown, if any, other than plaintiff’s negligence, was that of a fellow-servant. Yon den Heu/oelv. Nat. F. Co. 84 Wis. 636; Peffer <o. Cutler, 83 Wis. 281; Pésehel v. C., M. do St. P. B. Co. 62 Wis. 338; Stuts v. Armour, 84 Wis. 623; Kliegel v. Weisel do V. Mfg. Co. 84 Wis. 148; Johnson v. Ashland W. Co. 77 Wis. 51; Armour v. Hahn, 111 U. S. 313; Blasinslci v. Per-Idns, 77 Wis. 9; Hoth v. Peters, 55 Wis. 405; Heine v. C. dé N. W. B. Co. 58 Wis. 525; Kelly v. Abbott, 63 Wis. 307; Dwyer v. Am. Exp. Co. 82 Wis. 307.</p>

<p> Taxation: Ejectment: Interest: Statutes: Amendment by implication. </p> <p>In an action of ejectment, governed by sec. 3087, R. S. 1878, as amended by ch. 805, Laws of 1880, where the original owner recovers judgment, the rate of interest to be added to the taxes to be repaid by such owner as a condition of relief, is twenty-five per cent, per annum, and such rate was not changed by ch. 182, Laws of 1891.</p>

Plaintiffs are attorneys, and bring this action to recover for professional services rendered to defendant. Answer was made putting in issue tbe value of such services, and setting up a counterclaim.

<p>Appeal from an order of the circuit court for Eau Clairé county: JaMes O’Neill, Circuit Judge.</p> <p>Appeal from order overruling appellant’s demurrer to a complaint. It is alleged, among other things, that the defendants Truax and Kahn were the owners of a dilapidated and dangerous building, and adopted certain plans, methods, and specifications for dismantling or tearing down said building, and repairing and reconstructing the same, and for that purpose the appellant and two other defendants entered into independent contracts with the owners for doing said work; that the plans and specifications adopted by the owners were improper and imperfect; that each of the contractors and their foremen were incompetent, unqualified, and incapable of comprehending and understanding the importance of, and the difficulty and dangers connected with, said undertaking; that the contractors neglected to employ capable or competent foremen and employees, or to furnish their servants and laborers with proper tools, implements, and instrumentalities, and omitted to take the requisite and indispensable precautions to guard against the collapse and fall of the building; that, in an interval of the absence of plaintiff’s intestate for about a week, various things were done naturally tending to make probable the collapse of the building, such as cutting away portions of the walls, partially removing foundations under them, cutting out and removing studdings and framework and supporting iron rods, and piling some 40,000 pounds in weight of materials upon the third floor; that the defendants all authorized, ordered, and directed the manner, mode, and method in which the work was being done, and sanctioned and approved of the tools, implements, and instrumentalities used therein; that plaintiff’s intestate was ignorant of these various perils, and on the 17th day of August, 1896, was assigned to work on the second floor of said building, and that the three contractor defendants “ employed and used, and were employing and using, unsuitable, unfit, and inadequate tools, implements, instrumentalities, and appliances in doing, executing, and performing said work of dismantling, removing, remodeling, renovating, repairing, rebuilding, and reconstructing said building, on and between the 29th day of July and the 17th day of August, 1896, in so careless, negligent, and reckless a manner, under the immediate and continuous supervision, direction, and control of the said defendants Peter Truax and Alfred Kahn, who empowered, authorized, approved, sanctioned, adopted, and ratified the manner, mode, and method of doing, executing, and performing said work,. according to and in pursuance of improper, unsafe, and defective plans and specifications provided by and furnished to said contractors by said defendants Peter Truax and Alfred Kahn, which naturally, directly, necessarily, and inevitably resulted in causing and occasioning the collapse and fall of said building on the 17th day of August, 1896,” whereby the plaintiff’s intestate, while in the exercise of due care and caution, and without fault or negligence, was precipitated to the basement, crushed by falling timber and debris, and instantly killed; that the plaintiff is the widow and administratrix of the estate of deceased, and dependent upon him for support.</p>

<p> Conditional sales: Election to rescind: Voluntary assignments. </p> <p>1. Defendant’s assignor purchased a soda-water apparatus under a contract providing that the title should not pass until it was paid for, with the right reserved in the seller to retake and remove the same on default on any instalment. The contract was duly executed and filed. After notice from defendant of the voluntary assignment, that the assignee recognized plaintiff’s lien, and that if plaintiff desired to hold his security and not file a claim against the estate it would be satisfactory to him, default having been made in payments of instalments, plaintiff, with the assignee’s consent, took possession of the apparatus and removed it out of Wisconsin. Plaintiff filed his claim against the insolvent’s estate for the balance due on the contract, which was disallowed. Held, that plaintiff intended to and did cancel and rescind the contract.</p> <p>2. While the contract was not drawn so as to put the vendor to his election between rescission and retaking the property, or enforcing payment, yet he could not, on taking possession, sell such property as his own, or appropriate the same to his own use, without working a rescission of the contract, or having the value of the property applied as payment or part payment of the purchase price.</p>

<p> •Chattel mortgage: Fraudulent conveyances: Voluntary assignment. </p> <p>Bona fide creditors of an insolvent debtor having received chattel mortgages in good faith, without participating in any intent to hinder, delay, or defraud remaining creditors, their securities are valid when received by them, and are unaffected by the making of a voluntary assignment within sixty days thereafter unless the mortgagor contemplated making the assignment or the commencement of proceedings in insolvency at the time the mortgages were given.</p>

<p>' Appeal from a judgment of the circuit court for Eau Claire county: James O’Neill, Circuit Judge.</p> <p>The complaint stated all the material facts, covered by the findings filed by the court. Such findings were in substance as follows: June 25,1886, plaintiff recovered a judgment against defendant Ellis for $2,938.10 in the circuit court for Trempealeau county, Wisconsin. Thereafter, on. motion of Ellis, he was permitted to answer the complaint, the judgment to stand, however, as security for plaintiff’s ultimate recovery. February 6,1892, thereafter, Ellis moved the court to dismiss plaintiff’s complaint. That motion was denied and Ellis appealed from the decision to this court, obtaining a stay of proceedings in the circuit court upon filing with the clerk of such court a bond in the sum of $1,000 conditioned that he would pay the plaintiff such judgment as he might recover in the action. The bond was signed by the defendants in this action, Ellis signing as principal and the other defendants as sureties. Such sureties bound themselves as follows: “The said defendant will pay to the said plaintiff such judgment as- shall be recovered in the action, in case said order shall be affirmed by the supreme court on said appeal, not exceeding one thousand dollars.” The order appealed from was affirmed and thereafter such proceedings were duly had in the circuit court that plaintiff recovered judgment against Ellis for $1,940.25 and costs, upon which judgment plaintiff collected, by a sale of Ellis’s interest in some real estate, $550; and otherwise the judgment is wholly uncollected. April 4, 1895, before the rendition of the judgment, but after the cause was tried and submitted for decision, Ellis, in due form of law under the statutes of this state governing the subject, was duly discharged from all his debts and liabilities. The discharge was not called to the attention of the trial court before the rendition of the judgment, but thereafter, on motion, the court perpetually stayed all proceedings for its collection. After the occurrences mentioned this action was commenced to recover of the defendants on the aforesaid bond the sum of $1,000 with interest from the date of the rendition of the final judgment against Ellis. On such facts judgment was ordered for the amount of tire bond with, interest in accordance with the prayer of the complaint, which judgment was accordingly entered and the sureties appealed.</p> <p>They contended, inter alia, that the sureties were discharged by the discharge of the principal in insolvency. Wolf v. Stise, 99 U. S. 1; Odell v. Wootten, 38 Ga. 225; Carpenter v. Turrell, 100 Mass. 450; Fontaine v. Westbrooks, 65 N. O. 528; Sigler v. Shehy, 15 Ohio, 471; KenVy v. Hughes, 1 Browne (Pa.), 258; Thomas v. Gole, 10 Heisk. 411; McvrUn v. Kilbowrn, 12 Heisk. 331; Chmn-pion v. Noyes, 2 Mass. 481; Trumbull v. Mealy, 21 Wend. 670; Rowland v. Stevenson, 6 N. J. Law, 149; Burns v. Sim’s Bail, 2 Cranch, O. O. 75; Beers v. Harnghton, 9 Pet. 329; Thomae, K. & Oo. v. Brown, 9 Watts, 288; Belknap v. Davis, 21 Yt. 409; Robinson v. Ilodge, 117 Mass. 222.</p>

<p> Jurisdiction: Service of summons: Proof of service. </p> <p>1. Proof of service of summons, when made by any person other than the sheriff, must be made by affidavit of the person making such service, showing, among other things, that affiant knew the person served to be “the defendant mentioned in the summons.” An affidavit of service which only contains the statement that affiant knew the person with whom he left the copy of the summons sustained the relation of general manager to the defendant corporation is insufficient, such statement not being a statement that he knew the corporation upon whom service was attempted to be had was “the defendant mentioned in the summons.”</p> <p>2. Jurisdiction of a party, when there is no appearance, can only be acquired by the service of process in the manner prescribed by law, and when a statute intervenes and displaces the common-law manner of service, courts are bound to take the words of the statute as law.</p> <p>3. When a peculiar method of serving process is pointed out by statute that method must be followed, and where the proof of service fails to show a compliance with the statutory method, the service should be set aside.</p>

<p> Appeal: Findings: Building contracts: Arbitrators: Conditions precedent: Garnishment: New trial after judgment. </p> <p>1. When there is no clear preponderence of the evidence against the findings of fact made by the referee and confirmed by the court, the conclusions reached thereon will not be disturbed on appeal.,</p> <p>2. It is competent for a contractor to bind himself to perform the contract not only according to plans and specifications, but also to the satisfaction and acceptance of a designated referee, and a contract so made will be enforced according to its terms, as a condition precedent to recovery, unless dispensed with by the parties themselves, or unless the acts of the nominated referee are collusive, fraudulent, arbitrary, or unreasonable, or due to clear mistake of the facts on which his judgment is predicated.</p> <p>3. Where a contractor has not shown completion of his contract according to its terms, or any excuse therefor, or any substantial completion of the structure contracted for, or that the owner has taken possession of the same and put it to the use intended, he cannot recover, and a plaintiff in an action on a debt due him from such contractor has no greater rights against the owner, summoned as garnishee, than the contractor.</p> <p>4. A motion for a new trial made after judgment cannot be considered . on an appeal from the judgment.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge.</p> <p>The facts are stated in the opinion.</p>

H. JohNsoN, Circuit Judge. This is an action for tbe value of services performed by the plaintiff’s intestate for tbe defendant county. On tbe trial it appeared that in May, 1894, Garrett Dunck, tbe intestate, was employed by a special committee of tbe board of supervisors of Milwaukee county to examine, as an expert, an alms bouse which bad been recently erected by tbe county, for the purpose of ascertaining whether tbe contractors bad faithfully performed their work.

<p>Appeal from a judgment of the superior court of Milwaukee county: Geo. E. SutheelaNd, Judge.</p> <p>Action by an employee to recover of bis employer compensation for a personal injury alleged to have been caused by negligence of such employer in respect to neglecting to furnish plaintiff with a reasonably safe place in which to do his work. Both parties were citizens of the state of Illinois at the time the cause of action arose, and continued such down to the time of the commencement of this action. The period within which an action could have been commenced to enforce the alleged liability in the state of Illinois expired before this action was commenced'and the facts in that regard were duly pleaded in defendant’s answer as a bar to the enforcement of plaintiff’s claim in the courts of this state. Evidence was produced tending to prove the allegations of the complaint. It was established on the part of defendant, beyond controversy, that plaintiff’s claim was barred in Illinois by its statute of limitations. Such statute, and the decisions under it, were offered and received in evidence. The facts in regard to such statute being uncontro-verted, no question on that branch of the case was submitted to the jury. There was a special finding of fact by the jury in plaintiff’s favor on all other branches of the case. A motion by plaintiff’s attorneys for judgment on the verdict was denied. A motion by defendant’s attorneys for judgment in its favor notwithstanding the verdict was granted, and the decision duly excepted to. Judgment was entered in defendant’s favor and plaintiff appealed.</p>

<p>Appeal from a judgment of tbe superior court of Milwaukee county: R. N. AustiN, Judge.</p> <p>Plaintiffs bring this action against the defendants John Ziehl and wife to foreclose a mechanic’s lien for $11.50. The defendant William Klann was made a party as a lien claimant. The proof shows that the defendant Klomn entered into a written contract with the defendant John Ziehl to do all the carpenter work and furnish all the materials for the remodeling of a certain building in the city of Milwaukee, situated on lands owned by the defendant Ottillie Ziehl, according to plans and specifications made by John Roth, Jr., architect, for the sum of $1,624, payable as the work progressed, upon the certificate of the architect. The contract provided “ that there shall be no charge for extra work, except in alteration of the plans, and in that case the price of such alterations are to be agreed upon at the time they are made, and minuted upon this contract; otherwise, not binding either of the parties.” It was. also further provided that Klcm/n should “ complete the said work, furnishing in all its several parts, in a good, substantial, and workmanlike manner, to the acceptance of John Roth, Jr., architect, . . .” and, further, “ that the said- work shall be executed so as to fully carry out the design for said building, as set forth in the specifications or shown on the j>lans, and according to the true spirit, meaning, and intent thereof, to the full and complete satisfaction of John Roth, Jr., who is hereby declared to be superintendent for said building.”</p> <p>As to the complaint, the defendants Ziehl admitted that the plaintiffs delivered some roofing material and did some work on the building, and that a lien was filed, but denied the other allegations of the complaint. As to the claim of Klcmn, the Ziehls set up the written contract, and allege that he failed to complete the building to the acceptance and satisfaction of the architect, setting out the particulars wherein they claimed the building was not finished, and also set up a counterclaim because of failure to cover the roof during the progress of the work, so that rain came in and injured the building.</p> <p>The case was tried before a referee, who found, as to the plaintiffs’ claim, that all the material allegations of the complaint were true, and that there was due from the defendants John and OttilUe Ziehl the sum of $11.60, and interest-from May 27,1893, and that OttilUe Ziehl was the owner of the premises.</p> <p>As to the Klcmn claim, the raeferee found that the defendant John Ziehl made the contract mentioned for and on behalf of himself and his wife, OttilUe; that Klann completed the work stipulated in the contract in substantial compliance with the contract, plans, and specifications; that “on the completion of said work, and prior' to the commencement of this action,” Klcmn “ was entitled to a final estimate thereof;” that he had been paid $1,400 on the contract; that Klann performed extra work'on said building' of the reasonable value of $38°.92; and that the total amount due from the defendants John and OttilUe was $262.92, and interest from May 4, 1893. As conclusions of law, the referee found that the plaintiffs and Klcmn were entitled to judgments against both John and OttilUe for the amounts stated, and a lien upon the building.</p> <p>Exceptions were duly filed, and motions to confirm and set aside the report were made. The report was confirmed, and judgment entered accordingly. The judgment provides for the entry of a deficiency judgment against both of said defendants. The defendants Ziehl appeal from the entered judgment.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: Geo. E. SutheelaNd, Judge.</p> <p>By sec. 98, cb. 281, Laws of 1897, the existing village of South Milwaukee, containing more than 1,500 inhabitants, was erected into a city of the fourth- class, controlled! by the general charter law (ch. 326, Laws of 1889, as amended [now ch. 40a, Stats. 1898]), and patent issued July 6,1897, and on September 4th a board of education was duly elected. Within the limits of the village was school district No. 1, and also free high-school district No. 1, coterminous in extent and governed by a school-district board consisting of the appellants. After the election of the board of education, the chairman thereof was duly authorized to take all legal proceedings to secure control of the school property of both school district No. 1 and free high-school district No. 1. Possession of the school house was obtained, but the records, books, property, school library, etc., still remained in the hands of the appellants, who claimed to hold the same as the governing board of a free high-school district, not terminated by the creation of the city, which they allege was never under the control or jurisdiction of the village board of the late village of South Milwaukee. The appellants allege that the property in controversy is property of said high-school district, and necessary for its conduct and management. They also allege that taxes had been levied and assessed according to old district lines, which separated free high-school district No. 1 from other parts of the city. Upon demurrer to a return, judgment was entered for an imperative writ of mcmdamus for the delivery of the property, from which this appeal is brought.</p>

<p> Slander: Pleading: Joinder of causes of action: Privileged com/municar tions: Church discipline. </p> <p>1. Two or more separate causes of action for slander may be united in tbe same complaint.</p> <p>2. Although it is true, when the article complained of contains several expressions, each of which is slanderous or libelous per se, that each such expression is in legal effect a separate cause of action as affecting the subject of damages, each such expression need not necessarily be pleaded as a separate cause of action.</p> <p>•3. Where one of the excerpts of a speech, charged to be slanderous, is not specifically alleged to have been falsely, maliciously, or wil-fully spoken with intent to injure the plaintiff, but the whole ■ complaint when taken together makes it susceptible of such construction, a general demurrer is properly overruled.</p> <p>4. The courts of this state will not determine mere questions of faith, doctrine, or schism, not necessarily involved in the enforcement of ascertained trusts and the determination of legal rights, nor interfere with mere church discipline, in the absence of any invasion of the legal rights of persons or property.</p> <p>5. On demurrer to a complaint, words charged to be slanderous, spoken of a priest by an archbishop, are held not to be privileged, where the complaint fails to show that the plaintiff as such priest was under the jurisdiction of the archbishop, and alleges that they were spoken falsely, maliciously, and with intent to injure the plaintiff; to be privileged they must have been spoken in good faith and in the belief that the speaking of them came within the discharge of duty.</p> <p>6. Words charging plaintiff with being insane and irresponsible and morally blind and disobedient to the laws of the church are slanderous per se.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: D. H. JohNsoN, Circuit Judge.</p> <p>The action was commenced to quiet the title to some valuable real estate in the city of Milwaukee. The question involved was whether plaintiff was the owner in fee of such’ property or only a life interest, and her infant children, Virginia C. Tyson and Juliet C. Tyson, the estate in remainder, subject to some contingencies not necessary to specially mention. In due form of law Hamilton P. Richardson, a member of the bar of said court, was duly appointed guardian of the infant defendants, and thereafter performed the duties of his office with such fidelity and ability that, notwithstanding an adverse decision in such court, he obtained a decree fully establishing the rights of such defendants and limiting the title of plaintiff in the property in question to a life estate with power of appointment, the exact nature of which power it is not necessary to state. After the litigation was substantially terminated, Mr. Richardson, on a petition setting forth its history and his services, moved the court for an order fixing and allowing his compensation for such services and his disbursements in the matter, and for the payment thereof out of the entire estate in remainder conserved by his services and expenditures and declaring the amount so allowed a lien on such estate, and that such portion thereof as might be necessary should be sold to satisfy such allowance, and for a reference to aid the court in determining the proper amount of his claim, if that course should appear to the court advisable. The motion was heard on due notice to all persons interested, and resulted in an order denying it, from which order this appeal was taken.</p> <p>For the respondents there was a brief by Bollin M. Mallory, guardian, and Edward S. Bragg, of counsel, and oral argument by Mr. Mallory. To the point that an attorney has no lien on his clients’ lands for services rendered in defending them, they cited Shaw v. Neale, 6 H. L. Cas. 591; Lee v. Winston, 68 Ala. 402; McWilliams v. Jenkins, 72 Ala. 480; Hinson v. Gamble, 65 Ala. 605; McCullough v. Flour-noy , 69 Ala. 189; Hanger v. Fowler, 20 Ark. 667; Hershy v. Duval, 47 Ark. 86; Smalley v. Clark, 22 Yt. 598; Cozzens v. Whitney, 3 R. I. 79; Humphrey v. Browning, 46 Ill. 476; Stewart v. Flowers, 44 Miss. 513; Martin v. Harrington, .57 Miss. 208; Fowler v. Lewis's Adm'r, 36 ~W. Ya.,112; McCoy v. McCoy, 36 ~W. Ya. 772.</p>

<p> Joint school districts: Severance of territory by creation of city: General charter: Amendment and repeal of statutes. </p> <p>1. On the creation of a city, by virtue of sec. 98, ch. 287, Laws of 1897, out of a pre-existing village, the territory of that village, formerly joined with part of the territory of an adjoining town as a joint school district, becomes severed from such joint school district, and falls under the dominion of the school board of the city, so that it becomes the duty of the city to provide the school facilities therefor.</p> <p>2. Although the legislature, by sec. 422, R. S. 1878, has delegated to the common council of a city or trustees of a village and town boards, in joint meeting, power to alter or extinguish a joint school district within their territorial limits, the legislature may exercise fee power so delegated itself, and the general city charter enacted in 1889 is an exercise of such power by the legislature. .</p>

<p>Change of venue: Prejudice of county judge: Mandamus: Appealable orders.</p> <p>1. Under sec. 2467, S. & B. Ann. Stats, (providing that when, in a civil action pending in the circnit court for Dodge county, a change of venue shall be granted on account of prejudice of the judge, it may, in the discretion of the court, be changed to the county court of Dodge county, unless it shall appear that the county judge is prejudiced or disqualified), on filing an ex parte affidavit, alleging prejudice on the part of the circuit and county judge, and bringing it to the attention of the circuit court, the right of the party becomes absolute to have a change of venue of the case to the circuit court of some county in an adjoining circuit.</p> <p>2. Under the present statute regulating appeals (sec. 8069, Stats. 1898), orders changing venue of actions are not appealable, and mandamus is an appropriate remedy'to review such orders. State ex rel. Johnson v. Washburn, 22 Wis. 99, distinguished.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge. The appellant moved to set aside the service of the' amended summons and complaint.</p>

<p> Negligence causing death: Master and servant: Evidence: Instniciions to jury: Special verdict: Immaterial error: Measure of damages. </p> <p>1. A corporation contracted with two of its incorporators, the defendants, who owned a majority of the stock, and who were doing business as copartners, for the construction and setting-up in its plant of certain heavy machinery. As the machinery arrived on cars the superintendent of the corporation directed and caused different men, employed by it, to unload and place the same in the building. The foreman of each gang of men was directed to keep account of the time they were employed in handling the machinery, and it was reported to the bookkeeper of the corporation and charged to the copartners .on the corporation books and by them paid direct to the corporation. To facilitate unloading, under the direction of " the superintendent and foreman of the corporation, a derrick was erected, which, while some machinery was being unloaded, fell and tilled plaintiff’s intestate. Deceased had been in the general employ of the corporation for over a year and was directed by its foreman to do the wort in which he was tilled. There was no one representing the copartners present to give instructions or direct the wort. Held, that plaintiff’s intestate and the other laborers, as well as the superintendent and foreman, continued subject to the selection, control, and dominion of the corporation, and sustained no relation to the defendants under any contract of hire, express or implied, and that the copartners were not liable for the death of plaintiff’s intestate.</p> <p>2. The finding of the jury that plaintiff’s intestate was the servant of the defendants is not sustained by testimony of the superintendent of the corporation that he hired deceased to assist in unloading the machinery, where the witness also testified that deceased was hired by the foreman of the corporation- to work for it several months before the accident, and continued on its pay roll as its employee until his injury, and there was no suggestion or evidence of any new hearing or change of relation, and an absence of evidence of any authority from defendants to hire men for them, or that the superintendent assumed to act under any such authority.</p> <p>3. A trial court should not in its charge, by any authoritative statement, inform the jury of the ultimate result of their answer to questions submitted for special verdict; and while expressions in the charge to the jury, such as “ the plaintiff says you should answer this question, Yes,” are not commended, they are not material error.</p> <p>4. In an action based on negligence of the defendant causing the death of a married man, an instruction to the jury that they are not limited to the simple value of the support and protection of the widow, but might consider the increase that the earnings of the husband would have made to his property and the reasonable expectation the widow had of ultimately receiving a share, is not error.</p>

<p> Municipal corporations: Malicious removal of officer: Indemnity: Torts: Corporate liability. </p> <p>1. A municipal corporation may indemnify its officers against liabilities incurred in the discharge of their duties, where the corporation has a right to defend or has a pecuniary or corporate interest in the discharge of such duties, but not where the officers were acting simply as officials performing public service. Thus, where a health commissioner, while performing his duty, was subjected to wilful and malicious charges of misconduct, and on investigation by the common council part of the charges were deemed sustained and he was dismissed by it from office, and on certiorari the removal proceedings were reversed and he was reinstated, the municipality is not liable for bills for attorneys’ fees incurred by him in defending against such charges and procuring a reversal of the proceedings and his reinstatement in office.</p> <p>2. If the common council 'was guilty of an actionable tort in maliciously encouraging the prosecution of plaintiff, its members are individually liable, but not the municipality.</p>

<p> Injunction against performance of contract: Rights of subcontractors, </p> <p>If a contractor be enjoined from performing his contract pending litigation against him to have it adjudged void, and his subcontractor, who has no rights independent of those of his principal, intervenes and moves the court for permission to proceed with his contract, the question for decision is, Should the injunction against the principal stand ? and if that be decided in the affirmative the motion should he denied.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p> Mutual benefit societies: Failure to pay assessments: Forfeiture: Waiver: Pleading: Evidence: Instructions to jury. </p> <p>1. In an action on a benefit certificate it appeared that the by-laws of the association, in accordance with which the certificate required payments to be made, provided that upon failure to pay any assessment on or before the day it was due the member stood suspended, with the privilege of reinstatement within sixty days on payment of the delinquent assessment and others meanwhile made; that the deceased member failed to pay an assessment when due and died ten days thereafter; and that on the day of his death the assessment was paid to defendant’s collector, who receipted therefor but attempted to return the money on learning of the death. It also appeared from the evidence of defendant’s officers that, during nearly two years before the death, assessments had been frequently received by the association two weeks after the specified pay day and retained, without suggestion of suspension and enforcement of the forfeiture, and that no entry of any suspension was made in the lodge books after default until after the death of the assured. Held, that while, on the failure to pay the assessment in exact performance of the strict terms of the agreement, a forfeiture was imposed, the conduct of defendant and its officers was such as to induce the belief of deceased that not a strict but a modified performance of the agreement was satisfactory, and to justify the conclusion that the minds of the parties had met on the new understanding of a modified performance, and hence that at the time of the death no forfeiture had occurred and deceased was therefore in good standing.</p> <p>2. Admission of evidence showing waiver of prompt payment, though such waiver is not XDleaded, is not a material error, especially where the objection to’such evidence is general and does not point out the specific objection relied on for reversal.</p> <p>3. Under sec. 2853, R. S. 1878, requests for instructions to the jury are to be granted or refused in toto as presented, and are properly refused if incorrect.</p>

Defendant answered, admitting the formal allegations of the complaint, the discovery of the new process for screening pulp and paper stock, the invention of a machine- as alleged, the value of the… Held: at which a resolution was adopted directing its discontinuance. There was a further affidavit on the part of defendant, by A. B. Whitman, a stockholder and director, corroborating the affidavit and answer of defendant.

<p>■Contracts: B ¿lease: Contemporaneous parol agreement: Fraud: Mis-talce: Presumptions: Consideration.</p> <p>1. The parties to the action, having met and settled a claim for personal injuries, and having purported to reduce the terms of the settlement on both sides to writing, wherein the injured party, who signed the writing, fully releases and discharges the other party from all claims and demands growing out of such injury, in consideration of a specified sum to be paid, and which is therein stated to have been received in full payment and satisfaction of such injuries, the party giving such release and discharge cannot maintain an action, based wholly on a further contemporaneous parol agreement to paya further consideration, without impeaching the settlement on the ground of some species of'fraud or mutual mistake. In the absence of fraud or mistake, the party so signing the written instrument is conclusively presumed to have known its contents.</p> <p>3. The jury, by its special verdict, having found that the parol contract with defendant, alleged as the cause of action, whereby it agreed to employ plaintiff for life at designated wages, was a distinct understanding, executed after such release and receipt, and that the consideration therefor was not wholly or in part such release and receipt, and it not being alleged or proved that plaintiff made any such independent agreement to work for defendant for life, such alleged contract cannot be enforced, it being wholly without consideration.</p>

<p> Nuncupative wills: Seal estate: Income of real estate. </p> <p>Under the statutes of Wisconsin a nuncupative will is inoperative to transfer title to real estate, or to dispose of the income of real estate accruing subsequent to the testator’s death.</p>

C. Ludwig, Judge. The superior court acquired jurisdiction of the cause by appeal from a judgment rendered for plaintiff in justice’s court. On the last day of the fourth term of the court after the appeal was taken, to which term the cause had been regularly continued, it was dismissed on plaintiff’s motion for want of prosecution.

<p>Certiorari: Return: Practice: Findings: Taxation: Assessment: Board of review: Evidence: Jurisdiction: Reassessment: Immaterial error.</p> <p>1. The return to a writ of certiorari is a response to the commands of the writ, and not an answer to the allegations of the petition.</p> <p>3.A cause having been submitted for decision, on the merits, on the petition and return to a writ of certiorari, findings of fact are not required, the sole question being whether the facts set forth in the return, excluding therefrom all matters introduced into it not properly matters of record, justified the decision complained of.</p> <p>3. Where the return of a board of review to a writ bf certiorari showed that the uncontroverted evidence of the relator, which was the only evidence produced before the board, established that the assessed valuation of his lands was too high, and also the basis on which his lands should be assessed in order to equalize the assessments, and nothing appeared in the record to impair its credibility, it was the plain duty of the board to correct the assessed valuation of his property accordingly, and their failure to do so constituted a clear violation of law which is subject to be corrected by certiorari.</p> <p>4. The clear intent and meaning of sec. 1061, Stats. 1898, is to place it beyond the power of the board of review to change the valuation of real estate without evidence, and to make it the duty of such board to change such valuation in accordance with the evidence.</p> <p>5. It is well settled that in proceedings of a summary character like that of boards of review under the statutes of Wisconsin, — bodies exercising quasi-judicial powers, not admitting of any other remedy for a direct review,— clear violations of law in doing those things which are within the jurisdiction of the body to do in a legal manner may be corrected upon the common-law writ of ceHiorari.</p> <p>6. In an action to test by certiorari the proceedings of a board of review in respect to its decision on the relator’s application to have the assessed valuation of his property materially changed, so as to be on a basis of equality with the assessment of property generally in the assessment district, it is error in granting the relief sought to require the board to reassess the relator’s property, but on appeal such error is not prejudicial where the assessment roll has passed beyond the control of the officers having power to change it.</p> <p>7. While equitable considerations may require the quashing of a writ of certiorari, even after a hearing on the merits and appeal to the supreme court, yet where such discretionary power of the court is not invoked, and the writ was sued out, hearing had, and judgment rendered while the assessment roll was still in the hands of the proper clerk, and the circumstances are such that the relator is entitled to the remedy by certiorari, the writ should be retained and the matter presented by the return decided upon the merits.</p>

<p>Appeal from an order of tbe superior court of Milwaukee county: J. C. Ludwig-, Judge.</p> <p>Omitting the formal parts and such of the allegations as are not deemed material to the decision of the questions raised herein, the complaint, in substance, is as follows: That the plaintiff is the owner of two lots in the city of Milwaukee, upon which are located three buildings which cover the said lots nearly or quite to the north line, and that she is in possession of said lots and the buildings; that in 1893 the Milwaukee Street Kailway Company was the owner of two lots adjoining her premises on the north, and that during that year said company erected a large brick building, forty feet high, on its lots, covering all its land, for a repair 'shop; that in erecting said building, said company excavated along its south line adjoining the plaintiff’s premises to the depth of several feet, and in so doing excavated beneath or under the foundations of plaintiff’s buildings, and, without .her consent and against her protest, built a foundation wall which extended over their line and underneath her buildings a distance varying from five to nine inches along the whole north line; that the defendant the Milwaukee Electric Railway & Light Gompcmy has succeeded to the rights of the other defendant, and is the owner of, and in possession of, said premises and using said repair shop; that the defendant the Milwaukee Street Eailway Company claims the right to keep and maintain said foundation wall and building upon the premises of plaintiff, and refuses to remove the same; that plaintiff’s premises are of great value, situate in the business district; that it was her intention, as soon as she is able, to erect a brick building thereon for business purposes, but that she will be prevented from occupying all of her premises because of the intrusion of said wall; and that the value of her-premises has been diminished and made unsalable, to her damage $2,000.</p> <p>The complaint further sets out that the lots have a frontage of twenty-five feet on certain streets, which is the smallest frontage salable or available for business purposes, and that the intrusion of said wall deprives her of the full use and enjoyment of her premises; that the wall is underground, and cannot be removed or cut off from the plaintiff’s side without removing the soil and the foundations of her buildings, and thus entailing great expense to her. The demand for relief is that she be adjudged the owner of, and entitled to the free use and occupation of, her lot to the line, and that defendants be required to remove the wall and pay her damages.</p> <p>The defendant Milwcmicee Electric Eailway & Light Company demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was heard on its merits, and overruled. The demurring defendant appeals from the order so entered.</p>

<p> Mistake of fact: Personal injuries: Pregnancy: Release: Rescission: Compromise: Practice on appeal. </p> <p>1. While no accurate and practically applicable definition of a mistake of fact, such as will warrant the rescission of a contract, can be formulated, without immediately surrounding it with numerous-exceptions and qualifications more important than itself, it may be defined as an unconscious ignorance or forgetfulness of a fact, past or present, material to the contract. The ignorance must not be a mental state of conscious want of knowledge whether a fact which may or may not exist does so; nor must it be due to negligence. The fact involved in the mistake must have been as to a material part of the contract — an intrinsic fact — and one of the things actually contracted about, and not one which, though connected with the transaction, is merely incidental; and the complaining party must show that his conduct was in reality determined by the mistake. And where parties have entered into a contract based on uncertain or contingent events purposely, as a compromise of doubtful claims arising from them, in the absence of bad faith they must abide the contract.</p> <p>2. Plaintiff; a married woman, was injured by jumping from defendant’s street car, in an emergency, and its liability for her injuries was probable. It appeared, among other things, that she was a woman of intelligence and experience, the mother of three children, and had passed by about a week the proper period of her menstruation. The defendant’s surgeon, in company with her own family physician, visited her after the accident and learned she was having a slight uterine hemorrhage. The question of her pregnancy was raised, and an examination to ascertain that fact proposed and peremptorily refused, she stating she was not in that condition. Thereafter defendant’s surgeon negotiated a settlement, under circumstances showing an entire absence of fraud, and she thereupon-joined with her husband in executing a full release of all claims, and demands, for damages or otherwise, which she then had or-could have by reason of jumping from the car. About two weeks-thereafter she suffered a miscarriage. J3eid,-that the question of plaintiff’s condition, whether pregnant or not, was not an intrinsic-fact of the subject matter of the contract, but was merely a collateral question, and that the uncertainty as to the fact entered into-the compromise and was of the consideration for the release.</p> <p>3. Pregnancy, if it existed, was no part of the injury, but was one of the surrounding conditions that might or might not increase the effect of the injuries, and the minds of the parties having met upon, the understanding of the payment and acceptance of something in full settlement of defendant’s liability, in the absence of fraud or unfair conduct, the contract must stand,although subsequent events show that either party made a bad bargain because of a wrong estimate of the damages that would accrue.</p> <p>4. If the fact of pregnancy were one intrinsic to the contract, the plaintiff, on her attention being called to the subject, having waived any investigation of it, and elected to proceed without inquiry into it, and made a settlement in terms complete, must be presumed to-have intended the apparent effect of her acts; and her belief and that of defendant’s physician as to the nonexistence of pregnancy was not such a mistake of fact as would justify a rescission of such, a deliberately executed contract.</p> <p>5. Where a trial by jury is waived, except as to the amount of damages, it is proper for the supreme court to apply the law to the facts established in the court below, and to direct the entry of the-proper judgment.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: Geo. E. StjtheRland, Judge.</p> <p>This is an action by the guardians of Caroline Roehl, a minor, to recover $1,600 ahd interest from the defendant on the ground that said sum was paid to the defendant by one Frederick Peters, deceased, in consideration of the assignment by said Volckmcmn to said Peters of a note and mortgage purporting to have been executed by one Pieper, but which were in fact forged. Volckmcmn, by his answer, denies having had any transactions with Peters, but admits that he at one time had held the note and mortgage in question, and that they were forged; but he alleges that Peters bought the same of one Rambusch.</p> <p>The action was tried before a jury, and the evidence showed the following facts without material dispute: For many years Rambusch transacted a real-estate, loan, and abstract business at Juneau, Dodge county, Wisconsin, and enjoyed the confidence of the business community. The defendant, Volckmann, lived at Watertown, and Rambusch, from time to time, made investments for him by mortgage. In the year 1885 Rambusch received from Volckmcmn $1,600 to invest, and returned to him the pretended note and mortgage in suit. Said note and mortgage purport to have been executed by one F. William Pieper September -9, 1885, to Volckmcmn, for $1,600, payable five years from date, at seven per cent, interest, and the mortgage purports to cover 120 acres of land in Dodge county, which was in fact owned by Pieper; but both note and mortgage were in fact forgeries. Rambusch sent to Volckmann the interest each year as it fell due, and on the 10th of October, 1892, notified Volckmcmn by letter that the mortgage would be paid in a week or two, and later, on the 27 th of October, wrote again, saying it would be paid next week. On the 17th of October, 1892, Rambusch wrote to Peters, who lived in Milwaukee, saying that he had a mortgage of $1,600 for sale, describing the mortgage in suit, and that it was renewed in 1890 for five years longer, and the interest reduced to six per cent. October 31, 1892, Rambusch sent an assignment of the mortgage to Volohncmn, together with the satisfaction of another mortgage held by Volohnann, and requested the execution and return of bóth papers, but said nothing as to what he proposed to do with them. The assignment was filled out as an assignment to Frederick Peters in consideration of $1,600, and contained a covenant that such amount was due, and that the assignor had good right to assign the same. The assignment was duly executed by Volohmamn October 31st, and was immediately mailed to Rambusch. November 1, 1892, Peters drew and sent to Rambusch his check for $1,600, which seems to have reached Rambusch on the 2d of November, and on said last named date Rambusch sent to Volohmmn notes and mortgages in place of the Pieper mortgage, together with a small amount of cash to make up the balance. These were received by Volohnann, and are still retained. November 3d Rambusch wrote to Peters, inclosing the Pieper note, mortgage, abstract, and assignment, stating that it was sent for the $1,600 received yesterday. When the mortgage was sent to Peters, there appeared upon the back of the note an agreement purporting to be signed by Pieper and VoloJcmcmn September 9, 1890, extending the time of payment for five years, and reducing the interest to six per cent. • This indorsement was forged by Rambusch. When the interest fell due in 1893 and 1894, Rambusch remitted the same to Peters. Peters died August 1, 1895, still being the owner of the note and mortgage. His will was ad" mitted to probate, and plaintiffs were duly appointed and qualified as executors thereof. Rambusch sent to the executors the interest upon the mortgage which fell due in 1895. In 1896 Rambusch absconded, and subsequently committed suicide, shortly after which the fact of the forgeries was discovered. In December, 1896, the county court of Milwaukee county entered a final decree settling the estate of Peters, and assigning the personal property, including this note and mortgage, to Caroline Roehl, as residuary legatee, together with all the rights and claims of Peters growing out of the same or of its purchase from Volckmcmn.</p> <p>Upon these facts the court directed a verdict for the plaintiffs for the amount of the mortgage and note, and the defendant appeals.</p>

<p> Appealable order: Intervention: Trustee in bankruptcy: Discretion. </p> <p>1. An application by a person, not a party to an action, for leave to be made a party is a special proceeding, and an order denying the application is appealable.</p> <p>2. A petitioner for leave to intervene in an action cannot appeal from the judgment rendered in the action, and thereby test the denial of his application.</p> <p>3. The provision of the national bankruptcy act (sec. 11, b), that the trustee in bankruptcy maybe ordered to enter his appearance and defend any pending suit against the bankrupt, was not intended to regulate the practice of .state courts and require them to make the trustee a party defendant on his application, but to place upon the trustee the official duty to appear and defend according to the rules and practice of the state court so as to protect the interests of the-general creditors.</p> <p>4 Plaintiff brought its action and attached property of the debtor, who appeared, answered, and traversed the affidavit of attachment. More than four months after the commencement of the action, the debtor was adjudged a bankrupt in proceedings under the national bankrupt act. His trustee in bankruptcy applied for an order making him a party, which application was denied. Held, that the trustee occupied the same situation as any assignee of property, with the added element of trusteeship for creditors, and that it was entirely in the discretion of the trial court either to make the substitution, or join him as defendant as a new party in interest, or leave him to appear and defend in the name of his assignor.</p>

E. SutiiuRland, Jndge. The plaintiff is a corporation. The defendant is the owner •of fifty-eight shares of its capital stock, of the par value of §100, upon which assessments to the amount of §54 have been paid.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: D. H. JohNSON, Circuit Judge.</p> <p>On April 11, 1890, Charles Donges, being childless, but his wife then being pregnant, made and executed his will, with the following material provisions: “ First. After my just debts and funeral expenses are paid, I give and bequeath to my beloved wife, Clara Donges, all the real estate of which I may die seised, together with the rents, income, and profits thereof; to have and to hold the same until the youngest of my children, if any be born me, shall attain the age of twenty-one years. Second. In case there are no children living at the time of my decease, my said wife shall be the sole owner of my real estate. Third. In case my said wife shall intermarry again, she shall only have her dower interest in my property. Fourth. The household property my wife shall hold absolutely.” Fifth was a bequest of $1,000 to each of four sisters, to be paid one year after decease, and charged upon an undivided half interest in a specified parcel of real estate. Seventh and eighth bequeathed the undivided half interest in the business of Donges Eros., to testator’s brother and partner, Jacob Donges, with the proviso that, in case of the death of Jacob before testator, the same should be divided among “my wife and children.” Ninth, in case of the death of the wife without issue, all property bequeathed to her should go to Jacob.</p> <p>Jacob Donges survived the testator, as also the wife, Clara, and two children, — Ella, born July 24, 1890, and Anita, born December 29, 1893. Testator’s estate consisted of a share in two or three parcels of real estate, the interest in the firm of Donges Bros., and practically no other personal property. The widow duly elected to take her rights by law, and not by the will. It was shown by extrinsic evidence that probability of children was upon testator’s mind at and before the execution of the will; also, that he considered himself under a moral, if not a contractual, pecuniary obligation to bis sisters to about tbe amount of their legacies in the fifth paragraph, for services rendered. Upon petition of the children- for construction of the will the county court, and on appeal the circuit court, considered that no provision was made for them, and that it did not appear by the will that the testator intended that no provision should be made, and accordingly adjudged that they were entitled to the same shares as if no will had been made, which resulted in complete abrogation of the will, so that they were entitled each to one third of all personal property, and each to one half of all real estate subject to the mother’s dower. The sisters, legatees under the fifth provision of the will, prosecute this appeal.</p>

Aepeal from a judgment of the superior court of Milwaukee county: R. N. Austin, Judge. Action to enforce a lien for extra work and material alleged to have been furnished defendant Brzezinski by plaintiff in the construction of a building for the former. There was a contract covering work and material to the amount of §1,357, all of which it was admitted was paid for; but it was alleged that extra work and material were furnished, not paid for, to the value of §147.

<p>Appeal from a judgment of the superior court of Milwaukee county: Geo. E. Sutheelahd, Judge.</p> <p>The facts in this case are quite fully set out in the findings. It appears therefrom, and from the evidence, that Gertrude A. Williams, prior to her marriage with plaintiff, was the owner of a house and lot in the city of Milwaukee; that she was affected with consumption, and died on the 12th day of March, 1891; that prior to the 29th day of January, 1891, she executed a will, in which she devised said property to her mother, Jane Sharpies, for life, and after her death to her brother, the defendant Mark Sharpies; that on said 29th day of January, 1897, believing herself to be on her deathbed, she caused said will to be destroyed, and, in order to save the expense- of the probate of said will, she called in the defendant G. Holmes Daubner, and directed him to prepare two deeds of said property, one to her mother for life, and the other to her brother in fee. These deeds were duly executed by her, and were delivered to Mr. Daubner. The circumstances of such delivery are stated by him as follows: “ I asked what I should do with the deeds. She said, ‘ If I recover, I want them back again; and if I do not, you deliver to mother and Mark after I am dead.’ ” Mr. Daubner took the deeds to his office, in Waukesha, and the next day inclosed them in an envelope, and put them in his safe. On the outside of the envelope he made the following indorsement: “Deeds from Gertrude A. "Williams to Jane Sharpies and Marie O. Sharpies, to be delivered to the grantees in case the grantor shall not recover from her present sickness; otherwise, to be returned to the grantor if she recovers.” The deeds remained in Mr. Daubner's possession until Mrs. Williams died. Thereafter the deed to Mrs. Shaples was delivered, whose death occurred shortly prior to the commencement of this action. The other deed remained in Mr. Daubner's possession, and this action was brought by the plaintiff husband, as the sole heir of his wife’s estate, to restrain its delivery. Upon the trial the court concluded that, when the deeds were delivered to Mr. Daubner, the grantor parted with all present or temporary control over the same, and gave judgment for the defendants, from which this appeal is taken.</p>

<p> Elections: Defective ballots: Canvass of votes: Evidence. </p> <p>1. Under the provisions of the statutes (secs. 52, 57, Stats. 189&, and secs. 48,49, ch. 288, Laws of 1893), in canvassing the vote cast at an election, ballots wherein, after placing a cross at the head of the column which included the names of defendant and relator, a cross was placed after the name of relator, and others that were so marked with a cross at the head of the column, from which the defendant’s name had been erased, and that of the relator written in the space below, should be counted for the relator.</p> <p>2. While there should be strict and careful supervision and preservation of defective ballots cast at an election in order to make them admissible in evidence, yet in the ultimate analysis it is only necessary that the court should be satisfied that the ballots offered in evidence are the identical ones cast at the election and are without change.</p> <p>3. In judicial controversy between individuals over the results of an election, it is the duty of the court to rectify any omissions or mistakes of the canvassing boards, and give effect to the real will of the voters as in fact expressed through their ballots, and that will, and the terms of those ballots, like any other facts, are to be ascertained from evidence, and are subject to the same rules as any other evidentiary matter.</p> <p>4 Since it is the duty of the canvassing officers to destroy all the ballots cast at an election as soon as counted, except where retained as defective, their contents, like any other written instrument, may be proved by oral evidence, especially if no objection thereto be interposed.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Geo. Olementsoh, Judge.</p> <p>This is an action upon a bond given by the defendant Hildebrand as treasurer of the plaintiff. The bond is conditioned for the faithful performance of his duties as treasurer, and for the accounting and paying over of all moneys of the corporation which might come to his hands as such officer. The facts in proof are substantially as follows: Oipjp was the owner of about forty acres of land near the city of Milwaukee. In July, 1891, he gave the defendant Hildebrand written authority to sell the same for $2,500 per acre, the latter to have as commission all that he could ob-ta.in above the price stipulated. Hildebrand made efforts to sell, and, not succeeding, be arranged with Beidensclvwcvt'z, Babcock, Douglas, and Wilhelm to help him in the sale, and agreed to divide commissions. Some of the party conceived the idea of organizing a corporation to purchase this land, and accordingly the plaintiff corporation was formed. All the parties, except Seidensehwcvrz, with others, subscribed for stock. Hildebrand, Babcock, and Wilhelm signed the articles of organization. The first meeting of the stockholders was held on November 12,1891, at which Douglas was elected president, Babcock secretary, and Hildebrand treasurer. It was then voted to levy an assessment of twenty per cent, on the stock subscribed, and to purchase the land mentioned at the price of $2,700 per acre. At that meeting Douglas stated to the other stockholders, in effect, that the price of the land was cheap, and the other stockholders were “ getting in on the ground floor in the deal,” but, aside from those interested in the commission, none of the stockholders had any knowledge of the secret profit so secured. The land was purchased for $111,375, and the payments were to be $18,375 in cash, and balance secured by mortgage. Hildebrand filed his bond as treasurer on December 5, 1891, signed by the other defendants as sureties. He acted as treasurer, however, from the date of his election. On November 10,1892, he made and filed his written report as such officer for the previous year, showing his receipts and disbursements. In this report he acknowledges receipt of $22,680, being the first assessment upon the stock subscribed, and reports the first payment on the land as $18,375. He continued to act as treasurer until November, 1895. Some time in 1896 the other stockholders discovered that Hildebrand and the other parties named had made a secret profit in the sale of the land to the company, and that, instead of Hildebrand having paid Gipp $18,375 for the land, as reported, he had only paid $10,125. This suit was accordingly commenced on his bond.</p> <p>The complaint contains two counts. The first alleges the failure to account for the sum of $8,375, the amount of Hildebrand's commission. The second sets up that Douglas became obligated to pay the company on his stock subscription for the first assessment $2,414, Babcock $1,000, Wilhelm $1,000, and Hildebrand $2,416, and that they entered into a conspiracy to defraud the company by obtaining its stock without the payment of the sums so due, and that stock was accordingly issued for the amounts and to the persons stated, without any money being paid therefor. The answers as to the first count allege that Hildebrand had accounted for all money received by him; and, as to the second, the answer admitted that the parties named became obligated to pay the amounts stated on their stock, and sets out that they have paid it in the manner as will more fully appear in the opinion. On the trial the facts as stated were developed, and the court thereupon directed a verdict for plaintiff for $8,250, and interest from the date of the commencement of the action. A discrepancy between the amount claimed and the amount for which the verdict was directed arises from the uncertainty in the proof as to whether the payment to Gipp on the land was $10,000 or $10,125, the court apparently adopting the latter finding for safety. Other facts important to be noted sufficiently appear in the opinion. The defendants appeal from the judgment entered on the verdict as directed.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. II. Johksoh, Circuit Judge.</p> <p>Action by a riparian proprietor to prevent the carrying out of a scheme for draining Muskego lake, a navigable body of water in Waukesha county, Wisconsin, naturally covering some 3,500 acres of land, for the ostensible purpose of promoting the public health, but actual purpose, as alleged, of enabling the promoters of the scheme to possess themselves of the title to the lake bed; to recover damages caused to plaintiff by a partial draining of the lake; and to compel a restoration of the water to the condition in which defendant found it. In 1887 a law [ch. 169] was passed authorizing a lowering of the lake at the cost of the owners of wet lands adjacent thereto, which might be benefited thereby. Under such act the lake was somewhat reduced, drawing the water away from the natural water line of plaintiff’s land from fifty to 150 feet, and for which he was assessed for the benefits to fifteen acres of land, and paid a portion of the cost. In 1891 a law [ch. 202] was passed authorizing James Reynolds, his heirs and assigns, to complete the drainage of the lake, ostensibly to promote the public health, and as consideration therefor, by the terms of the law, all the land within the meander line of the lake was conveyed to him, he being required to repay, to those who paid the cost of the first drainage, fifty per cent, of their respective payments, out of the proceeds of the reclaimed lands that might be sold by him, after reimbursing himself for his expenditures in doing the work. Reynolds caused a corporation to be formed soon after the date of the act of 1891, to which he con veyed his granted rights and privileges in consideration of substantially all the stock of the corporation. Prior to the commencement of this action such corporation, the defendant herein, so far progressed with the drainage scheme as to materially reduce the lake, to the damage of plaintiff, as alleged, and it purposed going on with the work to completion. The purpose of this action was to recover condensation for the damages caused to plaintiff by taking the water of the lake from his land, and to obtain a mandatory injunction compelling defendant to restore the lake to the condition which existed before its operations commenced. There was a demurrer to the complaint, overruled because it contained sufficient allegations of fact to show, if true, that the purpose of the act of 1891 was not to promote the public health, but to convert the bed of the lake into private property, a thing the state had no power to authorize.</p> <p>Defendant answered the complaint, and the issues were tried, with the following result as to facts, leaving out all merely formal matters: Plaintiff owns land with a frontage of 100 rods on Muskego lake, a navigable body of water in its natural condition, fed by natural springs and spring brooks, and of a depth of from one to forty feet, and an extent, inside the government meander lines, of three and one-half miles one way by about two miles the other. The use of the lake, before the acts of defendant complained of, was valuable to plaintiff for the purpose of boating, and for its influence upon his farm lands. Under the act of 1887 the level of the lake was lowered about four and one-half feet, thereby uncovering from fifty to 150 feet in width of lake bottom in front of plaintiff’s land, which he thereafter occupied and used. Such lowering of the lake level left a body of water substantially as serviceable to plaintiff as before. It'was accessible to plaintiff’s land by boats the same as formerly, except that it was more difficult to approach the shore line. In 1868 [ch. 198, R. & L. Laws of 1868] a legislative grant was made to James Reynolds substantially the same as the act of 1891, he then being a member of the legislature. In 1869 [ch. 326, R. & L. Laws of 1869] such act of 1868 was repealed. In 1890 Reynolds, who was then a resident of the state of Illinois, revived the scheme of obtaining control of the lake bed, and the result was the act of 1891. The purpose of such act, though ostensibly public, was in fact private. While the recited purpose was the promotion of the public health, the real purpose was to enable the grantee of the act, his heirs or assigns, to obtain title to the bed of the lake. A few days after the act of 1891 was passed Reynolds caused the defendant corporation to be formed, and conveyed to it all his rights under such act, including the right to the bed of the lake within the government meander line, the consideration being $299,100 in the capital stock of the corporation, that being all of the stock except three shares taken by as many persons in order to organize the corporation, $80,000 par value of which stock he gave to persons who enabled him to secure the passage of the act through the legislature. The defendant caused the work of draining the lake, under the act of 1891, to be commenced in 1892, doing but little work, however, that year. The work was continued in 1893 and in 1894, but not in the vicinity of plaintiff’s land, and not so as to make the effect of the operations apparent to him till some time in 1894. Plaintiff never acquiesced in defendant’s acts which operated to lower the lake level about four feet, leaving a considerable portion of the lake bed cov-erecl with water consisting of one body about three fourths of a mile long by eighty rods to half a mile wide, and several navigable channels, all connected with each other in times of high water. Instead of the work done by defendant, of reclaiming the lake bed, promoting the public health, it has so far uncovered the bottom and left it wet and unfit for cultivation that its condition is injurious to the public health. In 1895 the state land commissioners made a formal conveyance to defendant of the lake bed as it existed prior to the first drainage. The operations of defendant have resulted in withdrawing the water of the lake from plaintiff’s land, destroying his business of operating pleasure boats on the lake, preventing his using his land as a landing jilace for boats navigating the lake, and drying up the water in his wells, and otherwise injuring his property to his damage in the sum of $1,000.</p> <p>Erom such facts the court decided that plaintiff’s shore line, by the operations conducted under the act of 1881, was extended as the water of the lake was drawn down; that the act of 1891, attempting to convert the lake bed to private ownership, was void; and that plaintiff was entitled to judgment requiring defendant to restore the lake to the condition existing before its operations commenced, and to an injunction prohibiting any further work under such act as to Muskego lake, and to a judgment for costs. Judgment was entered accordingly.</p> <p>contended, inter alia, that an act of the legislature being assailed, the inquiry is limited to the question of power in the law-making body, and does not extend to the matter of necessity, expediency, the motives of the legislature, or reasons which were placed before them to induce the passage of the act. Brodhead v. MiVwaultee, 19 Wis. 629; Smeaton v. Martin, 5J Wis. 364; Wis. R. I. Go. v. Manson, 43 Wis. 255; TJ. S. v. Res Moines K. <& R. Go. 142 U. S. 510; Powell v. Pennsylvania, 127 U. S. 678; Fletcher v. Pech, 6 Crunch, 130; State ew rel. Att’y Gen. v. Gunning-ham, 81 Wis. 440, 509; Angle v. 0., St. P., M. <& O. B. Go. 151 U. S. 1; Forsythe v. Hammond, 68 Eed. Rep. 774; Went-worth v. Racime Go. 99 Wis. 26; State v. Gerhardt, 145 Incl; 439; Expamte McOardle, 7 Wall. 506; Doyle v. Continental Ins. Go. 94 U. S. 535. In considering the question of power in the legislature, it is the duty of the court to apply every possible presumption in favor of the validity of the statute until its validity is shown beyond a rational doubt. Fletcher v. Pech, 6 Cranch, 87-128; Dartmouth Oollege v. Woodward, 4 Wheat. 625; Lmimgston Go. v. Darlmgton, 101 'U. S. 407; Sinhimg-Fund Oases, 99 U. S. '700-719; Powell v. Pennsylvania, 127 U. S. 684; Rooher v. Norton, 1 Pin. 195; Mills v. Oharleton, 29 Wis. 400; Cooley, Const. Lim. (4th ed.), 225; Ramhim v. Golgam, 92 Cal. 605. If the act in question is capable of two constructions, one of which will invalidate and the other of which will give it force "and effect, the latter construction will prevail. Johnson v. Milwauhee, 88 Wis. 383; Palms v. Shawcmo Go. 61 Wis. 211; Athims v. Fraher, 32 Wis. 510; Bound v. Wis. Oemt. R. Go. 45 Wis. 543. The act challenged being a legitimate exercise by the legislature of the police power, the constitutional provisions against taking property without due process of law and against impairing the obligations of contracts, and the doctrine of- just compensation and uniform taxation, have no legitimate application. Baher v. Boston, 12 Pick. 184-192; Davenport v. Richmond, 81 Ya. 636; Bliss v. Kraus, 16 Ohio St. 54; Pine City v. Munch, 42 Minn. 342; Butchers’ Union S. II. & I. S. L. Go. v. Grescent City I. S. I. & S. H. Go. Ill U. S. 746; Fertilizing Go. v. Hyde Pa/rh, 97 U. S. 660; Wilcox v. Hemming, 58 Wis. 144; Bittenhaus v. Johnston, 92 Wis. 588; State v. Heinemamn, 80 Wis. 253; Chicago, M. & St. P. R. Go. v. MiVwauliee, 97 Wis. 418; 1 Dillon, Mun. Corp. § 141; Green v. Swift, 47 Cal. 536; Newarh <& S. O. H. G. R. Go. v. Hunt, 50 N. J. Law, 308; Gity Council of Charlestown v. Werner, 46 S. 0. 323; Dingley v. Boston, 100 Mass. 544; Miller v. Craig, 11 N. J. Eq. 175; Egan v. Hart, 45 La. Ann. 1358; Buck v. New Orleans, 43 La. Abel. 275; Dunbar v. Augusta, 90 Ga. 390; Ex pa/rte Shrader, 33 Cal. 279; Prentice, Police Power, 56, 57, 59; Trañn v. Boston D. Co. 144 .Mass. 532; Carleton v. Rugg, 149 Mass. 550; Comm. v. Alger, 7 Cush. 53; Raymond v. Fish, 51 Conn. 80; Eeller v. Corpus >.Christi, 32 Am. Rep. 613; 2 Dillon, Mun. Corp. § 955; Mal-sverer v. Spinke, 1 Dyer, 355/ Respublica'v. Spar hawk, 1 Dali. •357; 2 Kent, Comm. 338; Russell v. New Fork, 2 Denio, 461; State v. Blake, 36 N. J. Law, 447; Sedgwick, Stat. & Const. Law, 499, 502; 1 Dillon, Mun. Corp. § 141, and cases ■cited; Beer Co. v. Massachusetts, 97 U. S. 25; Scovill v. McMahon, 62 Conn. 378; Marvner v. Schulte, 18 Wis. 775; Dore v. .Crac/, 2 Term, 358; British G. D. Mf'rs v. Meredith, 4 Term, 794.</p> <p>The title to the' lands in question being in the state, the state had the right to dispose of any portion thereof whenever that could be done without substantial impairment of the interests of the public in the waters remaining. Gould, Waters (1st ed.), § 36; Comm. v. Alger, 7 Cush. 53, 77; Hoboken v. Pa. R. Co. 124 U. S. 656; 111. Cent. R. Co. v. Illinois, 147 U. S. 387; Fletcher v. Peck, 6 Cranch,'127; McCready v. Virginia, 94 U. S. 391; Buslmell v. Beloit, 10 Wis. 195; Wis. Cent. R. Co. v. Taylor Co. 52 Wis. 37; State sx rel. M., T. cié W. R. Co. v. Common Council of Tomahawk, 96 Wis. 73-82; Sparrow v. Comm’rs, 56 Mich. 567; Stevens v. P. da N. R. Co. 34 N. L Law, 532. The act assailed constituted an offer by the state to Reynolds, his heirs and assigns, that, if he or they would do the work therein required to be performed, compensation would be made by conveying the reclaimed lands, and this offer when accepted became a contract binding upon the parties thereto, subject to the same rules which govern the contractual relations of private individuals. Fletcher v. Peck, 6 Cranch, 87,135; Ohapi/n v. Gru-jen, 31 Wis. 209; .Slate v. Milwaukee G-. L. Go. 29 Wis. 451; Att'y Gen. v. Fail/road Oos. 35 Wis. 425; Metzel v. State, 16 Wis. 370; Sholes v. State, 2 Pin. 499; Baxter v. State, 9 Wis. 38; Bentley v. State, 73 Wis. 416; Feeder v. Guppy, 3 Wis. 502-534; Paige v. Kolmcm, 93 Wis. 435; Montgomery v. Kas-son, 16 Gal. 189; Davis v. Gray, 16 Wall. 203; Oornell v. Hichens, 11 Wis. 368, and oases cited in notes; State ex rel. Daniman v. Comm'rs, 4 Wis. 414; State ex rel. Yoight v. Hoe-Jldnger, 31 Wis. 257, 263; Sparrow v. Oomm'rs, 56 Mich. 567; State v. F. c& P. M. B. Go. 89 Mich. 481; Gomm. v. Andre's Heirs, 3 Pick. 224; Bigelow, Estoppel (5th ed.), 341; People v. Hagadorn, 104 N. Y. 516; U. S. v. McZaughUn, 30 Fed. Rep. 147; Hough v. Buchancm, 27 Fed. Rep. 328; India/na v. Milk, 11 Fed. Rep. 389; Att'y Gen. v. Buggies, 59 Mich. 124; TJ. S. v. Dallas M. B. Go. 41 Fed. Rep. 493. The title to the lands being in the state, and the state having the right to convey them, the conveyance under the act cannot be ■questioned in the absence of fraud. Wis. Biver Imp. Go. v. Mamson, 43 Wis. 265; tfyoarrow v. Gomm’rs, 56 Mich. 567; ¶. S. v. Des Moines Ff. <& B. Go. 142 U. S. 510; Ghcmdler v. Gdlumet <& H. M. Go. 149 U. S. 79; Mendota Glub v. Anderson, 101 Wis. 479; Parley's Park 8. M. Go. v. Kerr, 3 Utah, 235; F. G. Blakslee Mfg. Go. v. E. G. Blakslee's Sons I. Works, 129 N. Y. 155; Fuller v. Shedd, 161 Ill. 462, and cases cited; Smelting Go. v. Kemp, 104 U. S. 645; Wells v. Francis, 7 Colo. 396. It appearing affirmatively that the defendant performed the work required by ch. 202, Laws of 1891, it •does not, in this action, lie in the mouth of the plaintiff, who is not a party to the contract, to urge, and is not within the provision of the court to find, that the contract was not performed by defendant according to the requirements of the law. Wis. Biver Imp. Go. v. Mcmson, 43 Wis. 255; La Pointe v. Ashland, 47 Wis. 251; Holies v. Magnolia G. Go. 69 Tex. 434; Smelting Go. v. Kemp, 104 U. S. 636; Field v. Seabury, 19 How. 323; llagar v. Reclamation Fist. Ill TJ. S. 701; Mills Go. v. Railroad, Cos. 107 TJ. S. 566; Lee v. Johnson, 116 TJ. S. 48; Spa/rks v. Pierce, 115 TJ. S. 408; Bohall v. Pilla, 114 TJ. S. 47. The contract between defendant and the state haying been performed by defendant to the satisfaction of the state, and the state having paid the defendant for the work performed by delivery of the patent of the lands drained, the title of the defendant in and to the lands conveyed has, become vested and cannot be divested at the suit of a private individual. Fletcher v. Peck, 6 Oranch, 87; Angle v. G., St. P., M. <& O. R. Co. 151 TJ. S. 1. Plaintiff is estopped from securing the relief which he demands in this court of equity. Frederick v. Douglas C'o. 96 Wis. 426; Reuter v. Lance, 94 Wis. 305; State ex rel. Atffy Gen. v. Janesville W. Go. 92 Wis. 504; Paine L. Go. v. . Oshkosh, 89 Wis. 459.</p> <p>contended that the plaintiff had valuable vested riparian rights in Muskego lake of which the state cannot deprive him, except by a constitutional exercise of the power to appropriate property for public use. Delar plaine v. 0. & W. TJ. R. Go. 42 Wis. 214; Boorman v. Sun-nuchs, 42 Wis. 233; Bowman’s Devisees v. Wathen, 2 McLean,. 376, 382, 383; Gould, Waters, §§ 204, 246; 2 Washb. Eeal Prop. (5th ed.), 367; Eaukauna W. P, Go. v. G. B. <& If. G. Go. 75 Wis. 390; 2 Hilliard, Eeal Prop. (3d ed.), 100; Died-rich v. N. W. 77. R. Go. 42 Wis. 262; Yates v. Milwaukee, 10 Wall. 497, 504; Scmnders v. E. Y O. & E. R. R. Go. 23-N. T. Supp. 927, 932; Ohapma/n v. 0. <& M. R. Go. 33 Wis. 629; Lll. Gent. R. Go. v. Lllinois, 146 U. S. 387; Black River Imp. Go. v. La Grosse B. & T. Go. 54 Wis. 682; Jones v.. Johnston, 18 How. 156; Chicago & E. W. R. Co. v. Groh, 85-Wis. 641; Shwel/y v. Bowlby, 152 H. S. 35; Priewe v. Wis. S. L. & I. Go. 93 Wis. 534; J S. Keator L. Go. v. St. Grom B. Oorp. 72 Wis. 98; Wa/rren v. Chambers, 25 Ark. 120;. Municipality Wo. % v. Orleans Cotton Press, 18 La. 122; Cedar Lake K. Co. v. Cedar Creek H. Co. 79 Wis. 297; Wis. W. Co. v. Wina/ns, 85 Wis. 39; In re Theresa Drañnage list. 90 Wis. 301. The state had no such proprietary title to the bed of Muskego lake that it could pass the title to defendant’s assignor. liar din v. Jordan, 140 H. S. 371; Mclennam, v. Prentice, 85 Wis. 444; III. Cent. R. Co. v. Illinois, 146 IT. S. 452; Bradshaw v. Duluth 1. M. Co. 52 Minn. 59; Stockton v. B. dé W. Y. R. Co. 32 Eed. Rep. 9. The beds of waters in which titles of riparian owners do not extend to the center belong to the several states in which they are located, as sovereigns. Barney v. Keokuk, 94 U. S. 324; Pollard’s lessee v. Kagan, 3 Iiow. 212; Knight v. U 8.1.Asso. 142 U. S„ 183; Den v. Jersey Co. 15 How. 426; St. Clair Co. v. lov-ingston, 23 Wall. 68; Shindy n. Bowlby, 152 H. S. 1; Good'title v. Kibbe, 9 How. 471; 3 Kent, Comm. 427; J. 8. Keaton I. Co. v. St. Croix B. Corjp. 72 Wis. 89; Cibnan v. Philadelphia, 3 Wall. 726. Such title is by sovereignty and not a proprietary title. Mamtin v. Waddell, 16 Pet. 367; Saunders, v. W. Y. 0. & K. R. R. Co. 23 N. Y. Supp. 932; Mclemicm v. Prentice, 85 Wis. 428. Treated as a grant by a proprietor the act of the legislature is entirely inoperative because the grantor had no such title as he attempts to convey. Martin v. Waddell, 16 Pet. 367, 410; Mclenncm n. Prentice, 85 Wis. 427; Stockton v. B. <& N. Y. R. Co. 32 Fed. Rep. 9; Ya/rick v. Smith, 9 Paige, 547; Bradshcm v. Duluth I. M. Co. 52 Minn. 59; Willow River Club v. Wade, 100 Wis. 86; Pewaukee v. Samoy, 103 Wis. 271; Cedar lake PL. Co. v. Cedan Creek K. Co. 79 Wis. 299; People v. W. Y da S. I. F. Co. 68 N. Y. 71; Muskego n. Drainage Corrm’rs, 78 Wis. 40; Emporia v. Soden, 25 Kan. 588; Boyd v. U. S. 116 H. S. 616. Oh. 202, Laws of 1891, is unconstitutional, and comes within the prohibition of secs. 31, 32, art. IY, Const. Wis., or the amendment of 1871. Wevil v. Clifford, 63 Wis. 435; Kimball v. Rosendale, 42 Wis. 407; State ex rel. Church v. Cheek, 77 Wis. 284; School Disi. v. Ins. Co. 103 TI. S. 107; Cooley, Const. Lira. (5th ed.), 483; State ex rel. Sanderson, v. Mann, 76 Wis. 469; State ex rel. Nunnemacher v. Mcmn, 76 Wis. 498; State ex rel. Davidson v. Gorman, Vr Minn. 232; Opening of Ruan St. 132 Pa. St. 257; 1 Morawetz, Priv. Corp. §§ 10-13; Lewis, Em. Dom. §§ 163,165; In re Niagara Falls c& W. It. Co. 108 N. T. 375; Citizens' W. W. Co. v. Parry, 59 linn, 202; S. C. 128 N. T. 669; Wis. W. Co. v. Winans, 85 Wis. 42; State ex rel. Cothreñ v. lean, 9 Wis. 279; Claris v. Janesville, 10 Wis. 191; Evans v. Phillipi, 117 Pa. St. 237; McCarthy v. Comm. ■ 110 Pa. St. 246; McLennan v. Prentice, 85 Wis. 428. Said oil. 202, Laws of 1891, is also unconstitutional as being in conflict with sec. 10, art. VIII, Const. Wis. W. Co. v. Winans, 85 Wis. 26; Gould, Waters, § 416; Valparaiso City W. Co.v. Dickover, 17 Ind. App. 233; Isom v. M. C. B. Co. 86 Miss. 316.</p>

<p>Criminal lavs: Abandonment of wife and child: Failure to support: Information: Duplicity: Jurors: Evidence: Instruction to jury: Prejudicial error. H</p> <p>1. An information under sec. 4587c, S. & B. Ann. Stats. — in effect-providing that if a parent, being of sufficient ability, shall unreasonably refuse or neglect to provide for his minor child, or if, being a husband, he shall, under like circumstances, refuse or neglect to-provide for his wife, he shall be deemed guilty of a misdemeanor,— charging the defendant with unlawfully and unreasonably refusing and neglecting to provide for his wife and a minor child, is not. bad for duplicity.</p> <p>2. The rule in such case is that under a penal statute'mentioning several things disjunctively, all of which are punishable alike, the-whole may be charged conjunctively in a single count, as constituting but a single offense.</p> <p>■8. The provision of sec. 45877i, S. & B. Ann. Stats.— which governs the trial in county courts of prosecutions for abandonment of a wife or minor children by the husband and father, and failure to provide for their support,— that the sheriff shall summon as jurors persons “qualified to serve as jurors in courts of record,” refers to the qualification necessary under secs. 2524, 2525, and does not mean that the persons must have been summoned in the manner laid down in ch. 176, Laws of 1897.</p> <p>4. Where marriage appears from the undisputed evidence, the admission, against objection, of an uncertified copy of the marriage certificate is not prejudicial error.</p> <p>■6. Where, in a prosecution for abandonment and failure to support the wife and minor child of defendant, he had testified that he was always willing to support them, it is not error to require him on cross-examination to answer a question as to whether he caused a certain notice to be published in a local paper warning the public that he would not be responsible for debts of his wife’s contracting.</p> <p>■6. In such a case an instruction to the jury that when a lawful marriage is established, it devolved on- the defendant to show that a divorce had been granted by some lawful tribunal, is without prejudice, where that court also instructed the jury at the defendant’s request, in substance, that if the complainant takes the ground that the defendant is under obligations to support her while she persists in living apart from him, she sadly misconceives her . duty and obligation, and that when she offers to live with defendant and discharges her conjugal duties, she will then be in a position to invoke the aid of the law to compel him to perform his duties if he refuses to do so.</p>

M. Phelps, Judge. Defendants were duly tried on a charge of burglariously entering in the night time a freight car, the property of the Chicago, Milwaukee & St. Paul Railway Company, with intent to commit the crime of larceny, and then and there stealing and carrying away eight suits of clothes, property of said corporation, and of the value of The jury rendered a verdict of guilty on the first charge and the accused was sentenced to the state prison on such conviction.

E. SutheelaND, Judge. Tbe facts are stated in the opinion. To tbe proposition that tbe agent, who bad mingled in a bank trust funds with bis own, was presumed to have drawn out his own money in preference to tbe trust money, they cited In re Nallett’s Estate (Knatschbidl v. Hallett), 13 Cb. Div. 696; McLeod v. Evans, 66 Wis. 401; Nonotuck 8. Go. v. Flanders, 8T Wis. 241;. Burnham v. Ba/rth, 89 Wis. 368.

E. SutheklaND, Judge. On May 21, 1895, the defendant Chase (a farmer in Eond du Xac county) signed a written order upon the plaintiff (a corporation engaged in the manufacture of agricultural implements at Battle Creek, Michigan) to the effect that the plaintiff should ship for him, to or in the care of J. M. Harmer, at Fond du Lac, on or about July 15, 1895, one of its improved No. 6 belt separators, therein described, and one eighteen-foot straw stacker, complete, therein…

<p> Master and servant: Negligence causing death: Excessive damages. </p> <p>1. Plaintiff’s intestate was killed by the bursting of a cast-iron elbow, one-fourth of an inch thick and subjected to high steam pressure as well as to sudden changes in temperature. In an action to recover damages therefor, expert evidence was admissible upon the question as to whether the cast-iron elbow, under the pressure to which it was to be subjected, was reasonably safe, and, if unsafe, whether its dangerous condition was so obvious as to have been observable by the defendant’s expert, under whose supervision it was placed, had he exercised ordinary care.</p> <p>2. Plaintiff, mother of intestate, was fifty-four years of age at the time of his death. She had six other sons aged from twelve to twenty-two years. The intestate was unmarried and lived with plaintiff, whom he paid $5 per week for his board, lodging, washing, and mending. Held, that a recovery of $3,000 was excessive, and that in view of plaintiff’s advanced age she should not be allowed to recover more than $1,500.</p>

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

<p>Constitutional law: Jurisdiction of supreme court: Superintending control over inf erior courts: Trial of issues of fact: Mandamus: Cer-tiorari as ancillary writ: Voluntary assignment: Final report of assignee: Inspection of boohs, etc., by creditors: Discretion.</p> <p>1.' Seo. 3, art. VII, Const., contains three separate grants of jurisdiction to the supreme court, namely, (1) appellate jurisdiction; (2) superintending control over inferior courts; (3) original jurisdiction, exercised by means of writs, to protect the sovereignty of the state, preserve the liberty of the people, and secure the rights of its citizens.</p> <p>2. By the constitutional grant of a general superintending control over all inferior courts, the supreme court is' endowed with a separate and independent jurisdiction, which enables and requires it, in a proper case, to control the course of ordinary litigation in such inferior courts, and it also took, at the same time, all the ancient common-law writs necessary to enable it to exercise that high power, including the writs of mandamus, prohibition, certiorari, and pro-cedendo, and the right to hear and determine the cause when the writ has brought it before the court, including the determination of questions of fact;' and no part of that power can be taken away by a statute attempting to regulate the trial of questions of fact in that court.</p> <p>■3. An insolvent bank with nominal assets of over $1,500,000, and debts of nearly the same amount, made an assignment for the benefit of creditors to its vice president. For over five years the assignee rendered no account of his administration, and then, jmrsuant to an order of court, he filed an account, which was duly noticed for hearing. Said account consisted principally of a transcript of his cash account, which was nowhere footed, and which utterly failed to state the property received by him or the manner of his dealing therewith; and the amount realized, and the condition of the funds and property in his possession, could only be determined, if at all, by the aid of expert accountants. General objections thereto were made by creditors, who also moved to have it made more definite and certain. Such account was not treated as a final account upon the hearing by the circuit court, and the creditors acted thereafter under the belief that a final account was to be filed. The court took the matter under advisement, and nine months thereafter, without notice, confirmed the account (except as to the assignee’s •compensation; as a full accounting of all acts up to the date of its filing. The following day the assignee’s resignation was filed and accepted, to take effect on the final confirmation of his account. The assignee thereupon moved to set aside an order, which had been made by a court commissioner at the instance of certain creditors, requiring the assignee and the officers of the assignor to submit to an examination, and the creditors moved to set aside the orders confirming the assignee’s account, accepting his resignation, etc., and for an order allowing examination of the books and of the bank officers before the court. One month thereafter the court granted the motion of the assignee and denied those of the creditors, and at the same time denied the motion of the creditors, made nearly a year before, to have the assignee’s account made more definite and certain. Held, that said account filed by the assignee was not the final report and account contemplated and required by sec. 1701, Stats. 1898, and any creditor was entitled to have it made more definite and certain before being required to file specific objections to it.</p> <p>4 A final order settling an assignee’s account, under sec. 1701, Stats. 1898, cannot properly he made until the duties of the. trust have been fully performed.</p> <p>5. No final report and account, within the meaning of the statute, having been filed, the rights of a creditor to have an inspection of the books of the assignor and an examination of the assignor and other witnesses under sec. 16936 was absolute and not discretionary.</p> <p>3. Aside from the statute, the right of a creditor to have an examination of the assignee under oath as to his dealings with the estate, under reasonable restrictions, is absolute, and a refusal 'to allow such examination prior to the approval of the final account can only be regarded as an abuse of discretion.</p> <p>7. Under the superintending power given the supreme court by the constitution (sec. 8, art. VII), that court may, by mandamus, compel an inferior court to perform a duty imposed by statute which is not discretionary in its nature, and may also compel action in cases where discretion is to be exercised, when it clearly appears that such discretion has not in fact been exercised, or that action has been taken in manifest disregard of duty or without semblance of legal power, and where it further appears that there is no remedy by appeal, or that such remedy, if existing, is entirely inadequate, and the exigency is of such an extreme nature as to justify the interposition of such extraordinary superintending power.</p> <p>& It appearing in this case that a large portion of the assigned assets consisted of commercial paper; that such of the paper as was still uncollected and had not been sued on would become barred by the statute of limitations within a few months of the date of the order of the circuit court denying the relief sought by the creditors; and that an appeal could not in due course be heard for several months, an appeal is held not to afford such adequate remedy as would prevent a resort to mandamus.</p> <p>■9. The refusal to allow the examination of the assignee and other witnesses being a violation of clear duty, and the same being within the power of the supreme court to summarily correct by mandamus, the order of the court below purporting to confirm the said account of the assignee, and the orders thereafter made in any way interfering with the making of a proper final report by the assignee and the filing objections thereto by the creditors, and the examination of the assignor, assignee, and other witnesses, cannot impair or defeat the remedy by mandamus. Such orders are in fact void and ineffective and constitute apparent obstacles only to the full effect of such writ.</p> <p>10. By the deed of assignment the bank assets became the property of the creditors, to the amount of their just claims, held in trust for their benefit by the assignee, to be converted into money, under thp direction of the court, and applied in liquidation of their claims, and such creditors are entitled at all reasonable times and in all reasonable ways to be informed of the progress' of affairs and the state of the business.</p> <p>11. While the writ of certiorari is generally used as an independent writ for the purpose of reviewing action below, it is well adapted to and is frequently used for ancillary purposes only, such as the bringing up a record for use upon the hearing of another matter; and hence, even in the absence of direct authority, it may be used in a case where the court has obtained jurisdiction by other process, and where the presence of a record wholly or partially absent is necessary.</p>

<p> Wills: Construction: Time from which wills take effect: "Deceases child: ” Trusts: Remainders, vested or contingent f Counsel fees. </p> <p>Testator, after certain specific devises and bequests, gave all tb© residue of Ms estate to Ms executors or their successors, in trust, to invest and keep the same invested, and from the income thereof, during the lifetime of his wife, pay the annuity provided for her, and distribute the remainder thereof semi-annually among all bischildren equally, the issue of a deceased child taking by representation its parent’s share, and upon the death of Ms wife to the residue of the estate equally among all his children, share and! share alike, the issue of any deceased child to take by representation the share which his, her, or their parent would have taken if living. Certain of Ms estate was not to be disposed of during the life of the wife or the youngest child surviving at testator’s death, unless they survived a fixed period. Deceased left surviving Mm Ms widow and six children. One of the children subsequently married and died before the testator’s widow, without issue, tes» tate, leaving Ms widow as Ms sole heir, to whom, by Ms will duly admitted to probate, he devised and bequeathed all Ms property. In an action to construe the will, held, that a general purpose of the testator to treat all his children alike was manifest, and as soon as the will was admitted to probate it took effect, by way of relation, as of the date of the death of the testator, and its language, should.be construed with reference to that time.</p> <p>2. There being nothing in the will providing that the share of a deceased child should go to the survivors, or any of them, in case such child should die without issue, nor any disposition of the share of any such child dying without issue, nor anything to indicate that by the use of the words “ deceased child ” the testator meant a child who should survive him and then die prior to the death of testator’s widow, the words “deceased child” refer to such of testator’s children, if any, as should die before he did.</p> <p>8. There being no uncertainty in the will as to the persons in whom the remainder vests, the trustees took only an estate commensurate with the equitable estate, subject to the termination of the trust. The remainder did not vest in the trustees, and, the disposition relating back to the testator’s death, the vesting in the remainder-men was of that date.</p> <p>4. Under testator’s will, except as therein provided and subject to the trusts and limitations therein contained, the reversionary and equitable interests in the estate became vested, immediately upon the testator’s death, in his six children then living, equally, share and share alike, and upon the death of one of them, without issue, his share passed to his widow, as his devisee and legatee, and she thereupon became entitled to the same share in the rents, issues, profits, and income thereof and the same share of the residue of the estate, upon final division thereof, as her husband would have been entitled to if he were still living.</p> <p>5. In construing wills, if futurity is annexed to the substance of the gift, the vesting is suspended, but, if it appears to relate to the time of payment only, the legacy vests instanter, and words directing division or distribution between two or more objects at a future time are equivalent to a direction to pay.</p> <p>6. In the construction of wills, the law, in doubtful cases, leans in favor of an absolute, rather than a defeasible, estate; of a vested, rather than a contingent, estate; of the primary, rather than the secondary, interest; of the first, rather than the second, taker, as the principal object of the testator’s bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible.</p> <p>7. A judgment in such actions providing for the allowance to the respective parties of counsel fees, payable out of the estate, is error. Only taxable costs and disbursements can be recovered.</p>

<p> Industrial school corporations: Maintenance of children committed thereto: Counties: Construction of statutes: Constitutional law: Power of judges at chambers: Commitment of children to industrial schools: Liberty of person: Trial by jury: Taxation: Public service. </p> <p>1. The expense of maintaining children, committed under secs. 1546,1547, R. S. 1878, to industrial school corporations, is chargeable to the counties from which the commitments are made unless otherwise specified therein.</p> <p>3. When a statute is open to judicial construction the court should look to the whole and every part of the law, to the intent apparent therefrom, the subject matter, the effect and consequences, and the apparent reason thereof, and then give effect, to the idea in the legislative mind in its enactment if that can reasonably be discovered and spelled out of the words they used to express it, though it violates the literal sense of such words.</p> <p>3. The legislative will attempted to be expressed in a statute, though determinable only by judicial construction, when so determined is-as much a part of the law as if it were literally expressed.</p> <p>4. The constitutional provision, sec. 2, art. VII, vesting the judicial power of the state in courts, does not deprive judges of such courts-from exercising such powers at chambers as were customarily exercised before the constitution, or any other power of a judicial nature authorized by the legislature, not requiring a tidal of an issue of fact.</p> <p>5. The commitment of a child to an industrial school corporation, not as a punishment for crime but to furnish the child needed guardianship, maintenance, and care for its benefit and that of society, is not an interference with personal liberty requiring a trial by jury to justify it.</p> <p>6. The tdxing power of the state cannot be used to furnish a gratuity to a person or corporation engaged in a private enterprise, though it be one in which many persons are interested; but it may be used to compensate such person or corporation for a public service.</p> <p>7. The test of whether an agency may be used by the state, or particular political subdivision thereof, by legislative authority, to perform service at public expense, is not whether the agency is private, but whether the service is within governmental functions. If the purpose of the employment be public and constitutional, and the agency be an appropriate means to accomplish such purpose, and not prohibited by state or national constitution, it is, under reasonable regulations, constitutional.</p> <p>8. Where a child, by reason of poverty or other cause, stands in need of proper parental care and maintenance, it is a legitimate governmental function to furnish the necessary relief; and the employment of a private corporation, organized specially to care for children in such-situations, is the use of an appropriate means to perform the duty of the state, and is constitutional.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p> Appealable order: Practice: Interlocutory judgment. </p> <p>1. An order, made in an action brought to set aside an alleged invalid assessment of taxes, staying proceedings until a tax can be levied in accordance with sec. 1210b, Stats. 1898, and ordering the proper of-fleers of the defendant town to proceed to make such reassessment and levy, is not appealable; it does not in effect determine the action and prevent a judgment from which an appeal can be taken. Pratt v. Lincoln Go. 61 Wis. 63, distinguished.</p> <p>2. To render an order appealable it is not enough that the merits of the suit are all decided by the findings and conclusions of law and such findings have been filed and the order is for the entry of judgment. The order therefor must have been carried out by the entry of the-judgment.</p> <p>3. It is suggested, but not decided, that, in cases where a finding or decision has been made substantially disposing of the merits of the action but leaving or requiring some further act to be done or issue to be decided before final judgment, entry of an interlocutory judgr ment under the practice authorized by sec. 2883, Stats. 1898, may save burdens that might otherwise be cast upon litigants before an appeal could be taken for the review of such decision.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>This is an action of divorce brought upon the ground of failure to support and also upon the ground of cruel and inhuman treatment. The parties were married July 9, 1869, and have resided in Milwaukee ever since. Three children, now living, were born of the marriage, two being now adults, and one eleven years of age. The divorce was granted by the trial court upon the ground of failure to support for more than one year prior to the commencement of the action, but the charge of cruel and inhuman treatment was negatived in the finding. Mo appeal was taken from that part of the judgment decreeing the divorce, but from that part decreeing the division of certain propertjr, and from that part relating to the costs of the action, the plaintiff appeals.</p> <p>Upon these subjects the evidence showed the following state of facts without material contradiction: At the time of the marriage, the defendant was engaged in the crockery importing business in the city of Milwaukee, and a member of the firm of Hale, Erackelton & Co. He claims to have brought from England about $75,000, which he invested in the business, and at the time of the marriage he supposed himself prosperous, and represented that his income amounted to about $13,000 per year. It appears, however, that the business became less profitable soon after the. marriage, and the income therefrom became greatly reduced, so that within two or three years after the marriage the plaintiff found it necessary to assist her husband in the business, and for that purpose learned the art of decorating and firing china, in which she became an expert, and gradually assumed almost the entire management of the business, besides earning considerable sums by decorating china and teaching the art to others. In 1881 the defendant made an assignment of his business to his father. Upon the sale by the assignee of the stock of crockery on hand, the plaintiff purchased the same, and paid therefor out of her individual moneys, and thereafter, and up to the time of the commencement of this action, managed and operated the business as her own, and paid the expenses of the family, and the taxes upon the homestead, and the interest upon the mortgages upon the said homestead. As to the homestead, the court found it to be worth $15,000, the title to the same being in the wife, and the circumstances under which she gained title being as follows: At the time of the marriage, the lot on which the homestead is situated was owned by the defendant’s father. Some time after the marriage, and prior to the defendant’s voluntary assignment, the defendant erected a house thereon costing about $7,000, which he paid for out of moneys received by him from England. There was at this time a mortgage on the homestead of $4,000, given to pay business debts of the defendant, and a subsequent mortgage of $2,000 was placed upon tlie property in March, 1886. Just prior to the defendant’s assignment, in 1881, the defendant’s father deeded the homestead to the plaintiff for a nominal consideration, and the title still remains in that condition. A further mortgage of $4,000 upon the property was executed by the plaintiff about eight or nine years since, to pay family and business expenses, and all these mortgages are still upon the property, the plaintiff having paid the interest accruing and the taxes upon the property for about seventeen years. The stock in trade of the plaintiff’s business was found to be worth about $1,500.</p> <p>The custody of the minor child of the parties was awarded to the plaintiff, and the court adjudged that the plaintiff pay to the defendant the sum of $2,500, and that the same constitute a lien upon the homestead; also that the plaintiff deliver to the defendan t about half of the paintings contained in the homestead, naming them, together with a large number of articles out of the homestead, which are the personal belongings of the defendant. It was further adjudged that each pay his own costs, and that the judgment constitute a final division of the estate between the parties.</p>