Volume 104 — Wisconsin Reports

<p>Duress: Threats of imprisonment of husband: Negotiable instruments: Bona fide purchaser: Quardians.</p> <p>1. Threats of an employer to prosecute an employee for embezzlement and send him to jail unless his wife would execute a note and a mortgage of her own property to secure her. husband’s debt constituted duress rendering voidable the note' and mortgage so exe- ■ cuted' where the will of the wife was so overcome by the threats that the execution of the instruments was not her voluntary act.</p> <p>■3. One of two joint guardians of an infant, being unable to account for money of the ward which he had received, resigned his guardian1 ship and turned over a note and mortgage, payable to him but not yet due, to the remaining guardian, who received them in payment pro tanto, at their face value, of the indebtedness of the payee to the ward. Held, that the remaining guardian thereby became a bona fide holder for value of the note.</p> <p>3. The defense that negotiable paper was executed under duress by threats of imprisonment of a relative is not available against a bona fide purchaser before maturity.</p>

<p> Waste: Changes enhancing value. </p> <p>1. A large dwelling-house built in 1864 in the city of Milwaukee had, as a result of the growth and development of the city, become surrounded by factories and railway tracks. It stood isolated, upon « just enough ground to support it, from twenty to thirty feet above the level of the street, and was absolutely undesirable as a residence and incapable of any use as business property. In 1891 and 1892 the owner of a life estate, who stood in no' contract relation to the reversioners, removed the building and graded down the land to about the level of the street, thereby largely enhancing the value of the property. Held, that this did not constitute actionable waste.</p> <p>2. "When there has occurred a complete and permanent change of surrounding conditions, which has deprived property of its value and usefulness as previously used, the question whether a life tenant, not bound by contract to restore the property in the same condition in which he received it, has been guilty of waste in making changes necessary to make the property useful, is a question of fact for the jury under proper instructions, or for the court when the question is tried by the court.</p>

Fish, Judge. Iu 1892 the diocesan officers purchased with funds of the diocese a certain block in Milwaukee as a residence for plaintiff, ivho is archbishop of the diocese of Milwaukee, and took conveyance, as is customary, to the plaintiff individually. The premises are used as his residence, but also contain accommodations for his assistant officers, and various functions needing his personal presence are held there.

N. Austin, Judge. Motion for judgment on the mandate of the supreme court of the United States. The original judgment in this action was reversed on appeal,, and the cause remanded.-to the-superior court with directions to enter judgment in accordance with the opinion'. 90 Wis. 370.

<p> New trial: Newly discovered evidence, </p> <p>A motion for a new trial on the ground of newly discovered evidence is properly denied where such evidence consists largely in admissions of the plaintiff and there is no substantial excuse stated for not having the witnesses or their testimony present upon the trial. A mere general assertion of “ due diligence ” or want of negligence • is not enough.</p>

S. Gilsom, Circuit Judge. This is a will contest. William Goking, the testator, was born in Germany in 1822, and was married to Louisa Golc-vug, his widow and the proponent of the will, in 1851. He came to this country in 1852, and lived until his death, March 12, 1897, most of the time in Sheboygan county, in this state. He had accumulated about $30,000 worth of property, and left surviving hnn his widow, the proponent, and five adult children.

S. Gilsoit, Circuit Judge. Action to reform a mortgage and foreclose it as reformed.

<p>(1, 2) Municipal corporations: Injuries from defective streets: Action against person primarily liable: Limitations: Laches. (8) Appeal: Record.</p> <p>1. The charter of the. city of Fond du Lac provided (sec. 4, subch. 18, ch. 152, Laws of 1883) that the city should not be liable for injuries resulting from defects in the streets caused by the neglect of any person or corporation until all legal remedies should be exhausted against the party primarily liable; also (sec. 4, ch. 485, Laws of 1889) that no action for such injuries should lie against the city unless commenced within one year after the injury. Oh. 471, Laws of-1889 (sec. 1340a, Stats. 1898), provided that in such cases the city and party primarily liable might be sued in the same action, and that in an action against one the other might he made a party by amendment of the complaint. Meld, that it was not essential to a liability of the city that the action against the person primarily liable should be commenced within one year.</p> <p>■2. Plaintiff in such a case proceeded with diligence against the party supposed to be primarily liable and obtained judgment. After-wards, within one year after the injury, he sued the city, which alleged that another person was primarily liable; and on appeal from a judgment against the city it was so decided. Thereupon it being then about three years after the injury, the plaintiff made such person a party. Held, that he was not guilty of such laches in proceeding against the party primarily liable as would defeat a recovery against the city. McFarlane v. Milwaukee, 51 Wis. 691, distinguished and its applicability, since the enactment of ch. 471, Laws of 1889, doubted.</p> <p>% -Counsel have no right on appeal to found any argument .upon, or bring into the case, a fact not disclosed by the record.</p>

The appeal is from an order overruling defendant’s demurrer.

They argued, among other things, that where condemnation proceedings have been resorted to and the legal remedies thereon exhausted, the landowner may have a remedy by injunction to prevent the use of his land without compensation, or, in other words, to secure him in his constitutional rights, ordinary legal remedies having proven unavailing. Gilman v. 8. <& F. du L. B. Go. 40 Wis. 653; Oherokee Wation v. 8. K. B. Co. 135 U. S. 641; Irish v. B. <& 8.

Ekeoe to review a judgment of the circuit court for She-boygan county: N. S. GilsoN, Circuit Judge. This was an action brought by the plaintiff in error in her capacity as executrix of the will of her husband, Henry 0. Laack, deceased, for goods, ivares, and merchandise sold by him to the defendant in error to the amount of $64.50. The answer admitted the representative character of the plaintiff, the purchase of the goods and the value thereof, and alleged payment therefor.

S. GilsoN, Circuit Judge. Patrick Madden, deceased, willed his property as follows: To his wife for life, remainder over, one half of the real estate to Phillip Madden without incumbrance, $100 to his daughter, Elizabeth Coleman, $5 to Andrew Madden, and the rest and residue, after the payment of all of his debts, to Mary Ann Brown. Substantially all the property possessed by the testator at the time of his death was a homestead incumbered by a mortgage.

<p>Lewis v. ■American S. & L. Asso. 98 Wis. 303, followed.</p>

S. G-ilsoh, Circuit Judge. The complaint alleges, in substance, that the plaintiffs sold defendant all the oak and basswood timber on certain lands owned by plaintiffs at the agreed price of $8 per 1,000 feet for red oak and $6 per 1,000 feet for white oak and basswood, to be scaled in the woods and before the logs were hauled; that defendant entered upon the premises and cut 69,408 feet of white oak, 51,554 feet of red oak, and 11,860 feet of basswood; that defendant had…

<p>Appeal from a judgment of the circuit court for Pond du Lac county: 3ST. S. Gilsow, Circuit Judge.</p>

This is an action upon a promissory note dated February 23, 1893, for $237.50, signed by the defendants, payable to the order of the plaintiff ten days after date. The defense was that the note was obtained by the plaintiff by means of duress of imprisonment.

<p>Appeal from a judgment of the circuit court for Grant county: Geo. Olemehtsou, Circuit Judge.</p> <p>On and prior to January 4, 1896, John Willey was the owner of 400 acres of land in the town of Smelser, Grant county, Wis., a homestead in the village of Cuba City, and some real estate in Chicago. He died on January 22,1896, leaving a widow, five sons, named John A., Samuel, Thomas, Henry, and Walter, and four daughters, named Mary Hodge, Martha Terril, Nellie Kittoe, Grace E. Wills, and a granddaughter, named Belle Terril, who was the only daughter of his deceased daughter Agnes. About January 4,1896, said John Willey, being aged and sick and not expecting long to»' live, directed Charles Dent, an attorney residing in Cuba City (who died before the trial of this action), to prepare deeds, one to each of his sons, óf a designated eighty of said 400 acres of land, and a deed to them jointly of the homestead in Cuba City. The attorney properly drew all of the deeds except the one to the plaintiff, Thomas. It was the-intention of the father that the land described in his deed to-plaintiff should be the E. of the N. W. J of section 35, but through mistake the deed was drawn covering the E. of the N. E. \ of the same section, the north forty of which constituted a part of the eighty described in the deed to" Samuel, and the south forty was land never owned by him, so that at the time of his death the eighty first above described was not included in any deed signed by him. The-deeds so prepared were taken to Willey’s house on January 4,1896, and were duly executed by himself and wife, and witnessed by Dent and one Nicholas Williams. No one else-was present. So far as the evidence shows, the deeds were-not executed according to any contract or agreement with-the sons, and none of them knew of their execution until after his death. On that day, or afterwards, Dent took the-deeds to his office, and kept them in his possession until after Mr. Willey died.</p> <p>On January 28, 1896, Dent took the deeds to the Willey homestead, and in the presence of the five sons delivered them to Mrs. Willey. On Eebruary 26, 1896, Mrs. Willey, two of her sons, and Dent went to Galena, Illinois, and deposited the deeds with the cashier of the Galena National Bank, who gave a writing to the effect that he would act as-depositary of the deeds, and retain them in his custody until Mrs. Willey’s death, and upon due proof thereof would deliver the same to the grantees named. Mrs. Willey died on June 22, 1896. Pursuant to the agreement, the cashier delivered the deeds to the several grantees on June 26,1896. The plaintiff immediately went into possession of the eighty first above described, supposing that this eighty was described in his deed, and has continued in possession thereof. About May 1, 1897, he discovered the mistake. On January 22, 1896, the father, John Willey, executed a will, in which he devised his Chicago property to his daughters and grandchild, the particulars of which devise are not important in this litigation. After the discovery of the mistake in the description in the deed by the plaintiff, his four brothers and Martha, and Belle Terril executed to him quitclaim deeds of their interest in said land. The defendants Mary JFIodge, Nellie Kittoe, and Grace H Wills refused so to do, and claimed an interest in said eighty as heirs of their father. Whereupon the plaintiff brings this action against them for the reformation of said deed. The defendants answer, denying that said deed had ever been delivered.</p> <p>The court found the facts as herein stated, and, in addition, that the deeds to the several sons were executed upon, the consideration of natural love and affection only, and that there was no valuable consideration therefor. The principal question litigated upon the trial was whether there had ever been in fact a legal delivery of said deeds, and in his decision the trial judge said that upon that question his mind wavered and was uncertain. He based his decision upon the fact that the deed in question was a voluntary conveyance, and that the plaintiff had no standing in a court of equity, and could not secure a reformation. Judgment was given for the defendants, from which this appeal is taken by plaintiff.</p> <p>contended, i/nter odia, that courts of equity will interfere to enforce specific performance or to correct errors in voluntary conveyances in three classes of cases: (1) iñ favor of a wife; (2) in favor of a child; (3) in favor of a charity. 2 Change, Powers, §§ 2817-2930; Pomeroy, Eq. Jur. §§ 588-590; Randall v. Ghent, 19 Ind. 271; Germam, M. Ins. Oo. v. Grim, 32 Ind. 249; Wins-low <o. Winslow, 52 Ind. 8; Mason v. Moulden, 58 Ind. 1; Owen v. Williams, 114 Ind. 179. In family settlements equity will interfere to enforce specific performance or to correct errors in favor of the wife or children, and a meritorious consideration is sufficient. Pomeroy, Eq. Jur. §§ 588-590; Adams, Equity, 97, 98; Buford's Heirs v. MoKee, 1 Dana, 107; Ha/yes v. Kersliow, 1 Sandf. Oh. 258; Edwards v. Jones, 1 Mylne & 0. 226; Meek v. Kettlewell, 1 Hare, 464; Eennedy v. Ware, 1 Pa. St. 445; Oaldwell v. Willia/ms, 1 Bail. Eq. 175, 176; Stone v. Haokett, 12 Gray, 227; Soiwer-bye v. Arden, 1 Johns. Oh. 240; Magniao v. Thompson, 7 Pet. 348; Mo Gall v. Mo Gall, 3 Day, 402; Burnt v. Winthrop, 1 Johns. Ch. 329.</p>

<p>Appeal from a judgment of the circuit court for Grant county: Geo. ClemeNtsoN, Circuit Judge.</p> <p>Joseph Kemp died testate in 18IT, leaving, according to the inventory of his estate, securities to the extent of $4,100; live stock, farm implements, and crops to the extent of $429; wearing apparel, ornaments, and household furniture to the extent of $210. By his will he made his widow, Sarah Kemp, his executrix, to which place she duly qualified; and he further bequeathed, after the payment of debts: “ To my beloved wife, Sarah Kemp, all my estate, both real and personal, during her natural life. I also devise and bequeath to her all rents, interest on money, and profits that may accumulate from any source, to be used by her for her especial benefit during her natural life.” After her death he devised to the defendant, Joseph J. Kemp, all real estate and personal chattels, and $800 in money, and divided the residue of his estate equally between his other son, John W. Kemp, and his daughter, Mary Jane Barron.</p> <p>The widow went into possession of all the property, inclusive of the eighty-acre farm, in which it appears, somewhat indefinitely, that she had a half interest in her own right. She filed her inventory, but never settled the estate. She continued to live upon the farm and used the personal property until her death, which occurred about 1896,— nineteen years later. During the first four years of this period the defendant, Joseph J. Kemp, being a minor, worked on the farm for her. After his majority, about 1881, she leased the farm to him without rent, except her own residence and maintenance thereon, and the keep of any stock she might. have, and payment of taxes. All of the chattels derived from her husband she used up by ordinary use before her death, and all of the securities she had collected, except a single note and mortgage for $1,000, made by John Bennett, on which the interest had been paid regularly up to the time of her decease. She left a will appointing her son Joseph J. executor, and dividing her property among her three children and their children in proportions differing from those specified in her deceased husband’s will. Joseph J. Kemp qualified' as her executor, and took possession of all property in her possession at the time of her death, including said Bennett note and mortgage.</p> <p>The plaintiff, having been appointed administrator cle honis non of the estate of Joseph Kemp, deceased, brought an action in detinue against the defendant, demanding recovery of all the personal property coming to his possession from • his mother, describing it as in the inventory' which he had filed as executor; the contention being that all of such personal property was proceeds and accumulation of the property left to Sarah Kemp, and reverted to the estate of Joseph Kemp upon her decease.</p> <p>The circuit court held that the will conveyed to her a life estate in all the property of her husband; that the property left by her at her decease, while largely proceeds and accumulation of the property so received by her, also included accumulations from property which belonged to her independently, but that all accumulations of income became her separate property and did not belong to the estate of Joseph Kemp. The court further held that the Bennett note did revert, and also that her estate would be liable to his estate for the balance of the principal of the securities received by her,'namely, $3,100, and rendered judgment that plaintiff recover the Bennett note and enough other property to make up the sum of $4,100, with interest at the rate of six per cent, from the date of the death of Sarah Kemp, without costs to either party. Erom this judgment the plaintiff appeals, and the defendant does not. •</p>

<p> Debtor and creditor: Purchase of goods by insolvent: Fraudulent conveyances: Rescission: Declarations by agent. </p> <p>1. A purchaser of goods knew or had reason to believe that he was insolvent but, not being asked in respect thereto, did not disclose the fact to the vendor. After receiving the goods, and on the same day that he finished placing them in his store building, he gave chattel mortgages thereof to a bank and others. At the time he gave the order he intended to pay for the goods, and he had no thought of giving the mortgages until the goods were in the store and suit had been threatened by another creditor. Held, that the sale was complete, without fraud, before the giving of the mortgages, and that the vendor could not rescind it and retake the goods.</p> <p>S. Statements made to the vendor’s agent by the assistant cashier of the mortgagee bank, before the sale, as to the financial standing of the purchaser, which influenced the vendor to fill the order, ate held not binding on the bank, having been made in a casual conversation and not in the transaction of any business between the bank and such agent.</p>

<p>Consolidated Milling Co. v. Fogo, ante, p. 92, followed.</p>

<p>Appeal from a judgment of the circuit court for Eichland county: Geo. OlbMENTSON, Circuit Judge.</p> <p>This is an action in tort to recover damages for sickness alleged to have been caused by eating diseased meat sold to the plaintiff by the defendant. The answer admits, the sale of the meat, alleges settlement of the plaintiff’s right of action, and charges that any sickness which the plaintiff may have had was caused solely by her own negligence, and denies all the other allegations of the complaint.</p> <p>The action was tried before a jury. The plaintiff’s evidence showed that in February, 1898, she was the wife of one Anton Haberman, and that they had six children, and that she purchased a quarter of beef, weighing about 100 pounds; from the defendant, Gasser; that they used the meat for two or three weeks, and that she and some others of the family became sick; that the defendant came to the house at her request, and when she told him of the sickness he took bg,ck the remaining portion of the meat, and returned to her $5, which was the purchase price of the meat, and also paid her $5 for her husband’s loss of time, but that the defendant paid her nothing personally for her own sickness and loss of time; that the meat was paid for out of money which she and her husband accumulated together, she herself being the proprietor of a cigar factory. The defendant, by his evidence, admitted the sale of the meat, and that he took back the remainder of it, and that he gave the plaintiff back the consideration, and that the $5 paid by him for loss of time was for the loss of time of both husband and wife. There was expert testimony on both sides; that of the plaintiff tending to show that the meat was diseased and in fact caused the sickness of the plaintiff and her family, while that of the defendant tended to show that the meat was wholesome and could not have caused the sickness. There was also other testimony on behalf of the defendant tending to show that other persons had eaten of the same meat and had suffered no injury.</p> <p>The jury returned a verdict for the plaintiff, fixing compensatory damages at $25 and exemplary damages at $115, upon which verdict judgment for the plaintiff was rendered for $200, and the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: O. B. Wymabt, Circuit Judge.</p> <p>The plaintiffs brought this action against the defendants, as copartners under the firm name of the White House Dry Goods Company, to recover the amount of a promissory note. The H. B. Glaflm Company was summoned as garnishee, and made answer denying liability. The action was tried by the court without a jury, findings were made in favor of the plaintiffs, and judgment entered against the garnishee, from which judgment the garnishee takes this appeal.</p>

<p>Appeal from a judgment of the circuit court for La Orosse ■county: O. B. Wyman, Oircuit Judge.</p> <p>This was a suit in equity to cancel and enjoin enforcement of special assessment certificates for the building of sewers in the city of La Crosse, under the same proceeding which was involved in the recent case of State ex rel. Sehint-gen v. La Crosse, 101 Wis. 208. Judgment was rendered in accordance with the prayer of the complaint, holding the special assessments yoid. After, the decision in the Schint-gen Case, and before any appeal from the judgment had been perfected, the plaintiff and respondent served upon the defendants’ attorneys, and filed with the clerk of the court, a consent that that judgment be vacated and set aside, and that judgment be entered dismissing the complaint ‘or affirming and holding valid the proceedings set forth in the complaint and the tax and special assessments based thereon, with costs in the usual manner. Notwithstanding this tender or consent, the defendants perfected their appeal to .this court. A motion is now made to dismiss, on the ground that no controversy exists.</p>

B. Wxmau, Circuit Judge. In the summer of 1896 plaintiff was, and for some years had been, a dealer in ice at La Crosse, with customers to the southward, mainly on the line of the defendant’s railroad and connections. Plaintiff claims that about the 1st of August the defendant’s station and freight agent at La Crosse came to him, and called his attention to a quantity of ice stored at the abattoir just outside the city limits, which was for sale, and urged him to purchase it.

<p>Appeal from a judgment of the circuit court for La Crosse county: O. B. "Wymaht, Circuit Judge.</p> <p>The complaint stated, in substance, that January 4, 1896, plaintiff and others loaned to defendant Holbek $500 f,or a period of two months at eight per cent, interest per annum . upon said Holbek’s note indorsed by defendant Simon; that said note was renewed at its maturity, and the renewal note thus renewed, each of the notes being indorsed as before; that the third note was renewed for three months by a joint note of Holbek and Simon, which, upon maturity, was renewed by a like note, and that in turn likewise renewed, and that also renewed, the last note bearing date May 6, 1897; ■ that plaintiff was then the lawful owner and holder of such note and of the claim for the original consideration for the transactions mentioned, and that there was then due to him thereon the sum of $500 with interest thereon at the rate of eight per cent, per annum from the date of such note, for which judgment was demanded. Defendant Simon, by answer duly verified, denied on information and belief the-making, signing, indorsing, or execution by him of either of the alleged indorsed notes, and denied positively and of his own knowledge the facts alleged connecting him with the alleged joint notes.</p> <p>On the trial Simon was permitted against objection to file an affidavit denying the signing by him of the alleged in-' dorsed notes, whereupon plaintiff applied for a continuance, which was denied. No affidavit of prejudice, because of the ruling of the court on the application of defendant as aforesaid, was filed. All the notes mentioned in the complaint were received from .Holbek by plaintiff, and purported to have been signed as alleged in the complaint, but no definite proof was produced to show that the signature of Simon was genuine. The only note produced on the trial was the last one. Simon testified .that he never indorsed or signed any of the notes, and there was considerable expert evidence all one way to the effect that what purported to be his signature was a forgery. There was no proof that any steps were taken to fix the liability of Simon as indorser upon any of the notes.</p> <p>The court ruled that there could be no recovery in any event except on the last note, and submitted to the jury the question of the genuineness of what plaintiff claimed to be Simon’s signature to such note. The verdict was against the plaintiff, and judgment was accordingly rendered in favor of Simon, whereupon plaintiff appealed.</p>

<p>Appeal from a judgment of the circuit court for La Crosse-county: O. B. WniAs, Circuit Judge.</p> <p>The complaint in this action alleges that one E. L. C. Hol-bek, being desirous of purchasing and handling sewing machines, applied to the plaintiff for credit. He was informed that it would be necessary for him to furnish security; whereupon the defendant, Mathias Simon, executed and delivered to plaintiff an instrument in writing in the form of a letter of credit, wherein he agreed to guaranty the payment of the value and price of' such goods as might be sold to Holbek, to an amount not exceeding $2,000. The plaintiff sold machines and supplies to Holbek from time to time,, and at the date of commencement of suit he was indebted to plaintiff in the sum of $1,989.61. The defendant answered that the instrument mentioned, according to agreement between the parties, was to have been signed by another surety before it was to take effect; that defendant was never notified that plaintiff accepted the instrument; and that subsequently, by agreement between plaintiff and Holbek, the contract was modified, and the paper was delivered as a guaranty for $1,000 and no more.</p> <p>Upon the trial the following special verdict was rendered: “ 1. Did the plaintiff notify the defendant on the 9th of September, 1895, that it accepted the letter of guaranty signed by said defendant? A. Yes. 2. In case you answer the preceding question in the affirmative, then were sales. made by tbe plaintiff company from the 9th of September, 1895, to J une 23, 1897, to- R. L. 0. Hoibek, upon the faith and strength of the letter of guaranty? A. Tes. 3. At the conference between Emil Simon and the defendant, on the 9fch day of September, 1895, did the defendant give Emil Simon any notice that he would not be bound by the letter of guaranty, for the reason that it had not been signed by , another surety ? A. No. 4. Did the plaintiff company, at the close of the conversation on the 9th day of September, 1895, between Emil Simon and the defendant, have knowledge of sufficient facts in respect to this letter of guaranty, as to the manner in which this letter of guaranty was signed, to put a reasonably prudent man on inquiry as to whether there was to be another signer before the defendant was to be bound? A. No. 5. Did the plaintiff, within a reasonable time after the ceasing to give credit to R. L. 0. Hoi-bek, give notice to the defendant that said Hoibek was in default, and that it would look to the defendant as guarantor? Answer by the court. Yes. 6. What balance was due the plaintiff from R. L. 0. Hoibek for sewing machines and sewing-machine supplies furnished by the plaintiff to said R. L. 0. Hoibek between the 9th of September, 1895, and the commencement of this action? A. $1,400. 7. In case the plaintiff is entitled to recover, at what sum do you assess its damages? A. $1,400, without interest.”</p> <p>The plaintiff moved to set aside the answers to questions ■6 and 7, as being contrary to the undisputed evidence, and for judgment for $2,000, which motion was granted. The defendant moved to set aside the verdict, and for a new trial, for certain specified errors, which motion was denied. The defendant brings the case to this court for review.</p>

<p> Malpractice by physician: Trial: Setting aside verdict: Evidence: Cross• examination. </p> <p>1. In an action against a physician for malpractice in treating plaintiff for a fractured wrist, it is held that the evidence wholly failed to show, except as to one of the several items or phases of the injury, that they resulted from any negligence or malpractice on the part of defendant or that they were not the natural and legitimate results of the accident; and it appearing, from the method of the trial and from the size of the verdict, that the jury did not confine ■ themselves to the one phase of injury as to which a recovery could be sustained, but awarded damages for injuries which the defend» ant did not cause, the verdict should have been set aside as contrary to the evidence.</p> <p>2. The question being as to whether defendant had failed seasonably to administer passive motions to plaintiff’s hand, and a witness for plaintiff having testified to giving movement to the hand some weeks after the accident, it was error to refuse to permit him to be asked, on cross-examination, whether he had at any time heard defendant advise plaintiff to give passive motions to the hand, and whether plaintiff had told him (witness) that she had had passive motions given before he gave them.</p>

<p>Criminal law and practice: Homicide: Evidence: Corpus delicti: Circumstantial evidence: Cross-examination: Instruetions to jury: De-jining “reasonable doubt:” Material and immaterial errors.</p> <p>1. The corpus delicti, and every element of it, in a criminal case may be established by circumstantial evidence as well as by positive or direct evidence, if such circumstantial evidence produces in the minds of the jury conviction, to a moral certainty, of the existence of all the requisite facts and excludes every other reasonable hypothesis.</p> <p>& The reception of irrelevant evidence against objection, prejudicial, if at all, by reason of an unwarranted use of it by counsel in addressing the jury or significance given to it by the instructions of the court, is not reversible error.</p> <p>8. The right of cross-examination extends to a reasonable inquiry into the previous life and character of the witness, so far as the same bears on the credibility of his evidence, and the extent to which such examination may be carried rests in the sound discretion of the court, though it is an abuse of judicial authority to allow questions to a witness as to irrelevant matters, regardless of whether there are any circumstances reasonably suggesting them or they reasonably bear on his credibility, and for the purpose of creating, or which are manifestly calculated to create, prejudice in the minds of the jury against the witness, and, if he be a party, influence them to find against him because of such prejudice.</p> <p>4. For the purpose of explaining the circumstance that soon after a homicide for robbery the supposed guilty party was much improved financially, he testified that a few months before the homicide he and the deceased conducted a profitable partnership business; and to rebut that the court permitted a memorandum book of the deceased in evidence, saying that it tended to impeacli the evidence of the accused, which book did not show, definitely, that it was other than a personal memorandum book; there was no evidence that the aocused ever saw or was in any way concerned with it; and it did not refer, intelligently, to any business transactions between the accused and the deceased. Seld, prejudicial error.</p> <p>5. Evidence of threats made by third persons against the deceased was properly rejected, because, if offered to show motive for his leaving the country, it was irrelevant in the absence of evidence that he hg,d knowledge of the threats; further, there was no controversy as to the real motive, and if offered to show that some other person than the accused was the guilty party, the evidence was irrelevant and hearsay.</p> <p>6. A refusal to instruct the jury on the subject of the certainty of the existence of the facts requisite to a conviction, held not reversible error, since the general eharge contained full instructions on the subject.</p> <p>7. The giving of properly worded, specific explanatory instructions on the subject of reasonable doubt at the request of the attorneys for the accused, approved and advised; but a refusal to do so, when the general charge is full and plain on the subject so as to be understood, reasonably, by persons of ordinary comprehension, held not reversible error.</p> <p>8. The giving of special instructions on leading legal questions, as requested, or embodiment of them in the general charge, especially in an important case where such special instructions are more specific than the general charge, advised; but the refusal to do so when such general charge is sufficiently plain to be understood by persons of ordinary comprehension, held not error.</p> <p>9. Instructions so worded as to be difficult to understand, and so worded as to admit, reasonably, of a construction that would mislead the jury on a material point, held reversible error.'</p> <p>10.A general order to strike out all the hearsay evidence admitted on a trial, made at the close of the trial, without specifying the particular evidence referred to, leaving it to the jury to determine what is and what is. not hearsay evidence, held error.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Estates of decedents: Assets: Negligence causing death: Action for benefit of children: Commencement after final settlement: Administrator de bonis non: Notice: Waiver: Guardian ad litem.</p> <p>1. The right of action under secs. 4255, 4256, Stats. 1898 (providing that where the death of a person is caused by the negligence of another the wrongdoer may be held liable in an action brought in the name of the personal representatives of the deceased, and the amount recovered shall “belong and be paid over to his . . . lineal descendants ”), constitutes no part of the estate of the deceased, and is not taken away by the failure or refusal of the administrator to commence suit before final settlement.</p> <p>2. The appointment of an administrator de bonis non of an intestate estate without any notice being given as required by sec. 3808, Stats. 1898, and without the appointment of a guardian ad litem for minor heirs, is invalid even though the application for the appointment of such administrator was made by the general guardian of such minors.</p> <p>3. An order of the county court, made more than sixteen months after the appointment of such administrator, allowing a guardian ad litem, to file an appearance on behalf of the minors nune pro tune as of the date of such appointment did not validate the appointment.</p> <p>4. The functions of a guardian ad litem appointed to represent infants in the general administration of an estate in the county court terminate with the final settlement of the estate, unless continued by order of the county court.</p>

<p> Railroads: Injury to fireman: Contributory negligence: Assumption of risk: Notice of defect. </p> <p>1. In an action against a railroad company for injuries sustained by a fireman by being thrown from a moving engine while attending to the headlight by reason of a defective step, the evidence (showing, among other things, plaintiff’s previous knowledge of the defect and that it was not necessary for him to use the step at the time of his injury) is held to show contributory negligence.</p> <p>2. It being undisputed that reports of such defects were to be made or notice thereof given to the roundhouse foreman, the fact that plaintiff had requested a boiler repairer to fix the defective step and that the latter did or attempted to do so, did not relieve plaintiff from an assumption of the risk.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: O. B. WtMAN, Circuit Judge.</p> <p>This is an action upon a benefit certificate issued by the defendant to one Edward 0. Pion, on the 3d day of June,, 1896; the said Pion being then a charter member of Court Desota, located at Galena, Illinois, and the defendant being a fraternal association issuing life insurance certificates to its members upon the assessment plan. The certificate, when issued, was made payable to one Frances ITeid, the affianced wife of said Pion. The complaint alleges that on January 31, 1898, Pion duly changed the beneficiary, in accordance with the rules and regulations of the order, and thereby made his insurance payable to the plaintiff, his sister, and that Pion died February 9,1898. The amended answer admits the issuance of the certificate of insurance, and death of the insured, and the furnishing of sufficient proofs of death, but denies that the beneficiary was ever changed, and further sets up the defense of false statements made by the insured in his application for insurance, by which the policy was avoided.</p> <p>The rules of the order prescribing the manner in which the insured may make a change of beneficiary were put in evidence, and they provide, in substance, that such change-may be made in the following manner: (1) By filing a written application with the local court for such change; (2) paying a fee of fifty cents; (3) surrendering the old certificate ; (4) furnishing satisfactory evidence that he, and not. the beneficiary, has paid the assessments; (5) whereupon the local court shall cause the application, duly certified by the-court officers and sealed, to be transmitted, with the certificate, to the head office; (6) on the receipt of which, if approved by the supreme chief ranger, the supreme secretary shall incorporate in the certificate the desired change. The-rules further provide that upon the issuance of the second • certificate the first should thereby become null and void,, and that no certificate should be assigned, nor the beneficiary changed, except in the manner so provided. The rules further provide that, upon proof of death and allowance of the claim, the remittance should be sent from the head office-to the court officer, to be delivered to-the beneficiary on the surrender of the certificate; and provide that, if satisfactory proof of its loss or destruction or other satisfactory cause for its nonsurrender should be furnished, the remittance might be delivered, upon execution- of a proper release of all claims..</p> <p>It appeared by the evidence that the insured removed from Galena, Illinois, to La Crosse, Wisconsin, some time after the issuance of the original certificate., and lived with the plaintiff, his sister; that on the 23d of December, 1896, and prior to such removal; he made a written application to the local court for a payment to him of $1,000, on the ground that he was totally and permanently disabled from following any business, and stated that such permanent disability resulted from tubercular disease of the lungs. This application was accompanied by a certificate of the officers of the local court stating their belief that the statements of the insured were correct, and also by a statement of the court physician stating that he had examined the insured, and found that he was permanently disabled, as the result of bronchial and pulmonary irritation and the common symptoms of incipient pulmonary tuberculosis. This application was made under a clause of the certificate which provided for the payment of $1,000 to the insured in case of total and permanent disability. The certificate further provided for the payment of $2,000 to the beneficiary upon the death of the insured, less any sums which had been previously paid on account of permanent disability. This claim was not allowed. The insured was a railroad brakeman running on the Chicago, Burlington & Northern Bailroad. He entered the road’s service in September, 1894, as a brakeman on the main line, with headquarters at La Crosse, and was transferred to the Galena branch, with headquarters at Galena, in December, 1894, where he remained until July 1, 1895, when he returned to the main line, and so remained until January, 1896, when he went back again to the Galena branch, where he remained until December, 1896, at the time of making his application for benefits on the ground of permanent disability. He then ceased work on account of sickness, and went to Colorado, from whence he returned in April, 1897, and went to work again for the railroad company as flagman, until October, 1897, when be ceased to work on account of sickness. From October, 1897, until Ms death, February 9,1898, he seems to haye liyed at La Crosse with the plaintiff, his sister.</p> <p>The head of the defendant order is called the supreme chief ranger, and he has his oflice at Toronto, Canada. In January, 1898, one Eobert Kidney, a deputy of the supreme chief ranger, whose business, under the rules of the order, is to incorporate subordinate courts, look after those already in existence, and generally to represent the supreme chief ranger in that respect, came to La Crosse and saw the insured, on the 31st of January, at the home of his sister. The insured on that day told him that he wished to change the beneficiary in his certificate, and make the policy oyer to his sister, the plaintiff. Mr. Kidney produced the proper blank, and it was filled out, the fifty-cent fee was paid, and the application was at once transmitted to the local court at G-alena for the signature of the court officers and the seal. The certificate was not surrendered, because it was then in the possession of Frances Heid, at Caleña. The application reached Caleña, and the proper certificate was placed thereon by the officers of that court, and the same was transmitted to the supreme chief ranger, and reached him February 7,1898. The original certificate reached Mr. Pion on the 7th or 8th of February, but in what manner it was obtained from Miss Heid does not appear. He immediately delivered it to Kidney, who; on the morning of the 9th of February, being the ■day of Pion’s death, mailed it to the proper officers at Toronto, where it was received February 11th; Pion having died, ;as before stated, February 9th. No new certificate was •ever issued, nor does it appear that the original certificate was ever returned.</p> <p>Prior to the issuance of the original certificate, and on the 4th day of May, 1896, the insured underwent a medical examination at the hands of the court physician at Caleña, Illinois, wbo, after snob examination, made favorable answers to thirty questions regarding the physical condition., of Pión, and recommended him as a first-class risk. The insured also made answers to 157 questions with regard to his physical condition and his family history, and it is-charged that the answers to a number of these questions, were false, and that the insurance is invalid thereby. These-questions and the answers will be more fully discussed in the opinion, and therefore it is unnecessary to' set them, forth at length here. The concluding paragraph of said statement contained the following affirmation: “ I hereby affirm and declare that the answers to each and all of the above questions, also those made to the medical examiner, are true and correct, and that no intentional omission, concealment, or mental reservation has been made of any material fact or circumstance, relating to my past or present health, habits,.or condition, or to my family history, and I agree that the questions and answers herein contained shall form a part of my contract.” The certificate contains the following provision: “ In consideration of the application for membership, and of the agreements and statements, therein contained, and of the statements, representations, and declarations contained in the medical examination paper (in so far as the said agreements, statements, representations, and declarations are material to the contract), and in consideration, also, of the warranty 'of the applicant that, the same, being material to the risk, are true and correct, , . . and upon the faith and credit of all and each of which agreements, statements, promises, representations,, provisions, and declarations, and in consideration of the> payment of all assessments, dues, fees, capitation tax, andi fines, this benefit certificate is issued,” etc.</p> <p>A special verdict was submitted to the jury, which, with its answers, is as follows: “(1) Was the statement in Exhibit. No. 6, as to the cause of the death of the mother of insured, material to the contract? A. No. (2) Was the statement in Exhibit 6, as to the cause of the death of the mother of the insured, substantially true. A. Tes. (3) Was the statement in Exhibit No. 6, as to number of sisters of insured dead, material to the contract ? A. No.. (4) Was the statement in Exhibit No. 6, as to what diseases insured had been attended for by a physician during the previous five years, material to the contract? A. (By the court.) Tes. (5) Was the answer of the deceased to question 66 in Exhibit 6, £ What diseases have you been attended by a physician for during the last five years ? ’ imperfect ? A. Tes. -(6) Was the statement in Exhibit No. 6, as to whether insured was in good health at that time, material to the contract ? A. (By the court.) Tes. (T) Was the statement in Exhibit No. 6, as to the previous health of the father of insured, material to the contract ? A. -(By the court.) Tes. (8) Stricken out. (9) Was deceased in good health at the time he signed Exhibit No. 6 ? A. Tes. (10) If you answer the preceding question in the negative, then, when insured signed Exhibit No. 6, did he know that fact ? A. -. (11) Was the health of father of deceased good prior to his death ? A. Tes. (12) If yon answer the preceding question in the negative, then, when insured signed Exhibit No. 6, did he know that fact ? A. -. (13) Had his father, prior to his death, been afflicted with inflammatory rheumatism ? A. No. (14) If you answer the preceding question in the affirmative, then, when insured signed Exhibit No. 6, did he know that fact ? A. -. (15) At the time insured signed Exhibit No. 6, was there anything, to his knowledge or belief, in his physical condition, family history, or personal history or habits, tending to shorten his life, not distinctly set forth therein ? A. No. (16) In case the plaintiff is entitled to recover under the law, at what sum do you assess his damages ? Answered by the court: $2,099.”</p> <p>Upon this verdict, judgment for the plaintiff for $2,099 damages and costs was rendered, from which judgment the defendant appeals.</p> <p>To the point that the privilege of a physician applies to the disclosure of personal facts in regard to the individual himself, and not to the simple fact as to whether or not a physician had been consulted, they cited Breisenmeister v. /Supreme Lodge, 81 Mich. 525; Dittrich v. Detroit, 98 Mich. 245; Brown v. Metropolitan L. Ins. Go. 65 Mich. 806; Patten v. United L. do A. Ins. Asso. 133 N. T. 450; 3 Jones, Ev. 118; 2 Bacon, Ben. Soc. § 461.</p> <p>For the respondent there was a brief by Fruit <& Gordon, and oral argument by J'. J. Fruit.</p>

<p> Fixtures: Fleetrio light plant: Mortgages. </p> <p>A dynamo, exciter, and belts were placed in the building oí an electric light company under an agreement to pay rent therefor, with an option to apply the rent on the purchase price oí a larger dynamo or to purchase the one so put in and apply the rent thereon. At the expiration of the option the company purchased the machinery so put in, intending, however, to purchase a larger dynamo thereafter. The'dynamo weighed three and one-half tons, and was fastened to timbers in the building by means of lag screws, and was moved from time to time. The other machinery was fastened to timbers in substantially the same way.. The outfit was of more than sufficient capacity to supply all the light the company had contracted to furnish, and was in operation at the time of a foreclosure sale under a mortgage given to procure funds to construct the plant. Held that, as between the- purchaser at such sale and the original vendor of the machinery, the machines had become fixtures.</p>

<p>Appeal from a judgment of tbe circuit court for Oconto county: S. I). Hastings, Je., Circuit Judge.</p> <p>By an act of Congress of March. 3,1863 (12 Stats, at Large, 191), there were granted to the states of Wisconsin and Michigan certain lands as aid for the construction of a military road from Et. Wilkins, Copper Harbor, Keweenaw county, in the state of Michigan, to Et. Howard, Creen Bay,, in the state of Wisconsin. That grant was accepted by the state of Wisconsin, by ch. 418, Laws of 1864, by which act-was created a commission authorized to survey and contract for the construction of such a road through Wisconsin, to> be paid for only in the granted land.</p> <p>On August 4, 1864, those commissioners entered into a contract with James M. Winslow, of St. Paul, for the construction of the road in Wisconsin, in consideration of three sections of land to a mile of road. That contract did not exactly comply with the terms of the act of 1864. It was, assigned by Winslow, with tbe consent of tbe commissioners, to tbe United States Military Road Company, a corporation, and by that corporation, on August 9,1866, again with tbe consent of tbe commissioners, was assigned to Jackson Hadley; the commissioners extending tbe time for completing tbe construction to August 24, 1868. By Gen. Laws of 1865, cb. 331, tbe variation of tbe contract from tbe law of 1864 was authorized, and by P. & L. Laws of 1867, ch. 79, the terms of tbe contract, and its assignment and extension to Hadley, were ratified and confirmed. Hadley and bis. assignors prior to March, 1867, bad constructed, and the1 commissioners accepted, thirty miles of said road, leaving about 110 miles for construction.</p> <p>Hadley died March 3,1867, and, shortly after, the commissioners formally determined that tbe work of constructing said road was not diligently and properly prosecuted, and that tbe representatives of said Hadley bad forfeited all rights which they might have by virtue of said contract., and proceeded, in pursuance with tbe act of 1864, to advertise anew for bids. One J. W. Babcock was tbe only bidden, and be offered to build the remainder of the road, exclusive of tbe thirty miles constructed by Hadley, at tbe same rate of three sections per mile, payable as each ten-mile division of tbe road was completed, which proposal was opened, accepted, and approved by tbe commissioners on May 30,1867,. and a contract made in pursuance thereof on July 20, 1867,. providing, among other things, “ that this contract, and every part thereof, and any interest or interests therein, shall not be assigned or assignable to any person or persons, firm or corporation, in any manner or for any purpose whatsoever; without the written consent of the said commissioners, or their successors in office, first had and obtained, giving the* name of the assignee or assignees agreed upon; such assignee or assignees to give bond to the state of Wisconsin according to the aforesaid act of the legislature of Wisconsin.”' Said contract also recited the forfeiture and cancellation of the Winslow-Hadley contract.</p> <p>Shortly prior to the making of the Babcock contract of July 20, 1867, and after the acceptance of his bid, to wit, July 12,1867, a written agreement was entered into between George N. Eletcher, J. W. Babcock, and A. G. Crowell, the material part of which is as follows: “This agreement, made this above date by and between George H. Eletcher, of the one part, J. W. Babcock, of the second part, and A. G. Crowell, of Lock Haven, Pennsylvania, of the third part, whereby the above-named parties agree to purchase of the heirs of Jackson Hadley their interest in the unfinished part of the United States Military Wagon Road, commencing at Green Bay, Wisconsin, and running north to the state line, being some one hundred and ten miles, for which the parties agree to pay five thousand dollars, as per agreement with Otis B. Hopkins, representative of the said heirs, and J. W. Babcock. The said Crowell agrees to pay one fourth part the said five thousand dollars, and also the one fourth part of the cost of building so much of the said road as the parties shall decide to build, and the said Fletcher is to pay three fourths of the said five thousand dollars and the building of said road; and the said Babcock agrees to spend his time in overseeing and doing the work in building said road, for which said Babcock is to receive for his share one fourth part of the whole amount of land received for said job; and the said Crowell is to receive one fourth part of the balance of said lands, after taking out said Bab-cock share, and the said Eletcher is to receive three fourths of the balance left. The said lands may be equally divided, each one receiving his share in acres, by making as many divisions as may be necessary and each one bidding for the same, or they may be held in common and sold and the proceeds divided as the parties hereafter shall decide. . . . And it is further agreed, if, upon examination, that it will not be advisable to build more than thirty miles of said contract, or any other part of said contract, then the said Bab-cock is to be released from overseeing the same, but is to receive pro rata for the number of miles he may build in proportion to the whole as hereinafter agreed upon; and the said J. "W. Babcock hereby binds himself to build the whole one hundred and ten miles, and to get the same accepted by the commissioners, for the sum of thirty thousand dollars, to be paid him by the said Eletcher and Crowell, as above stipulated.”</p> <p>In pursuance of this contract an assignment was procured from the administratrix of Hadley, dated July 19, 1867, of all of the Winslow-Hafiley contract, except the thirty miles of road already completed and the lands due therefor. It also appears that on the 23d of July said administratrix also conveyed to Crowell all interest in the first thirty miles and the lands due therefor, subject to indebtedness to a subcontractor.</p> <p>Babcock proceeded with the construction of the road under his contract with the commissioners of July 20, and by November 2o, 1867, had completed forty miles -of said road, which was certified to the Secretary of the Interior by the governor, and place lands approved to the state of Wisconsin therefor May 10, 1868, and indemnity lands on April 5, 1869. The indemnity lands so approved include the lands involved in the first and second causes of action here.</p> <p>On April 1, 1868, Babcock assigned to one Charles M. Smith, of Chicago, an undivided one-fourth of all the lands earned by the construction of said forty miles of road, in pursuance of which, on February 23,1870, a patent for said undivided one-fourth was issued to him by the governor of Wisconsin. . His interest, however, is not further involved in controversy in this action, the taxes thereon having been duly paid.</p> <p>On June 20, 1878, Babcock executed to A. G. Crowell an assignment of an undivided three-sixteenths of the same lands, requesting the governor of the state of Wisconsin to issue to said Crowell a patent therefor, and containing no intimation of any previous rights of Crowell therein. On July 7, 1878, said undivided three-sixteenths was patented by the state to Crowell, the patent reciting the act of Congress of April 4, 1861, the previous contract with Winslow (assigned to Hadley), the completion of thirty miles by him, the cancellation of that contract, the assignment of the unperformed part of that contract to Babcock, Crowell & Fletcher, the making of the new contract with Babcock, and the construction of the forty miles of road, and the assignment of June 20, 1873, of Babcock to Crowell.</p> <p>On May 29, 1868, Babcock executed an assignment to George N. Fletcher of an undivided nine-sixteenths of the lands due for building the forty miles of road then already accepted, reciting the making of the contract of July 20th with the commissioners, and requesting the governor to ■deed said share to Fletcher. On March 1, 1871, a patent was made by the governor to Fletcher, containing substantially the same recitations as those mentioned in the Crowell patent, and also reciting that the assignment to Fletcher was made in pursuance of the contract between Babcock, Fletcher, and Crowell, of July 12, 1867, whereby Fletcher became and was a partner with said Babcock in building •.said road, and as such partner furnished a portion of the money to build said forty miles of road, and was to receive as his share nine-sixteenths of the land earned in building the same. This patent runs to Fletcher, as follows: “ Do give and grant unto the said George N. Fletcher, partner and assignee of said John W. Babcock as aforesaid,” etc.</p> <p>Before the making of Babcock’s bid, to wit, on April 9, 1867, by what is known as chapter 429 of the Private and Local Laws of that year, it was provided that all the lands located in the state of "Wisconsin, granted by the act of Congress of March 3, 1863, or 'which might thereafter be granted by Congress, to aid in the construction of the military road, “ are hereby exempt from taxation and from assessment of any kind, up to the 3d day of March, 1873, and during the time that the title to such lands shall remain in the state, or in the contractor to construct said military road, or his assigns: provided, that such lands, or any part thereof, shall not be exempt from taxation from and after the time the same shall be sold and conveyed by the contractor or his assigns to purchasers for actual settlement, or for the timber or minerals on the same, or for speculation; and provided further, that such exemptions shall not extend to any land which may now be or may hereafter be improved and held hy the contractor or his assigns; and provided further., this act shall be so construed that such exemptions shall extend to any and all such lands as may be pledged or conveyed as security for money raised to enable the contractor or his assigns to pay for constructing said military road, or any part thereof, so long as such lands so pledged or conveyed as security shall be so held; and provided further, that nothing in this act contained shall be so construed as to exempt any of such lands mentioned in this ■act from taxation or assessment after the third day of March, eighteen hundred and seventy-eight, for that purpose.” The ■foregoing act was amended by ch. 219, P. & L. Laws of 1868, by substituting the figures “1869” in place of “1873” and in place of “1878,” where those years appear, so as to cut down the exemption from taxation to March 3, 1869. This last act was repealed in terms by ch, 178, P. & L. Laws of 1869, approved March 4th of that year,— the day after the limitation had expired.</p> <p>During several years including and prior to 1875 this title of Fletcher, while still remaining in him, was assessed for taxation, and, the taxes not being paid thereon, the lands were sold in May of the various years from 1872 to 1876 inclusive ; and the tax certificates upon said sales were held, some by the county of Oconto, and some by one S. A. Coleman. On March 30, 1877, Eletcher brought suit in the circuit court for Oconto county against the officers of the county of Oconto and S. A. Coleman. The complaint alleged the act of Congress of March 3, 1863; its acceptance by the act of April 4,1864, and the appointment of the commissioners; the passage of the taxation exemption act of April 9, 1867; publication of that act;' the making of the so-called partnership agreement of July 12,1867, between Eletcher, Babcock, and Crowell; the making of the contract by the commissioners with Babcock on July 20th; and alleged that said contract, although taken in’ the name of said Babcock individually, was in fact taken for the benefit of Babcock, Crow-ell, and Eletcher as partners; alleged the building of the forty miles of road in 1867, and the conveyance by the United States of the lands therefor; that the agreement by Babcock with the commissioners was made with full knowledge on the part of himself and of the commissioners, “ and of the members of the firm of Babcock, Eletcher & Crowell, of the existence and of the tenor and effect of said act of the legislature exempting all the lands so granted by the United States to the state of Wisconsin from taxation and assessment of any kind during the time that the title to said lands should remain in the state, or in the contractor to construct said military road, or his assigns, and that the fact that said state so agreed to exempt said lands from taxation entered into the consideration for the construction of said road, and was a material part of such consideration and of the contract between said commissioners and said firm.”</p> <p>The complaint also alleged that all of the lands described (which include those here involved) were earned by-the construction of said road by the plaintiff, Eletcher, and his co-contractors above named, and “ are a portion of the lands granted to the state of Wisconsin by the United States to aid in the construction of said .road, and are lands which were and are by said act of the legislature exempted and agreed to be exempted from all taxes and assessments as therein provided, to wit, until March, 18Y3, and during the time that the title thereto should remain in the state or in the contractor to build said wagon Toad.” And, further, “ that the lands were so earned in 186Y, and were afterwards conveyed to this plaintiff by said state of Wisconsin, by patent, in payment for his proportion of the work done upon said road, as one of the contractors for building the same, in and .during the year 186Y, and that the.'same are now still owned and held by this plaintiff, and the title thereto still remains in him, and that he hath never improved any portion thereof or done anything with or to them whatsoever.” The complaint proceeded further to allege the location of the various lands, those here in dispute being for the year 18Y5 claimed by. the town to be located in the town of Marinette; the allegation being that said town was not contiguous, and that {he lands were separated from the town of Marinette. ■ The complaint also alleged that none. of said lands were valued by the assessors from actual view, as required by law, but that the valuation was made arbitrarily and without view, and that the tax sales of any portion of said lands were absolutely null and void, and further alleged the failure of the assessors to take and subscribe oaths as required by law. The complaint prayed injunction against the issue of deeds on account of any of said tax sales, and for general relief.</p> <p>The defendant Coleman did not appear in said action, and no answer on behalf of the board of supervisors or the county clerk appears in the record. On. October ,21,18Y8, the court made his findings of fact,, and entered judgment for the plaintiff. The court found that all the allegations of the complaint were jjroven and were true as therein stated, and adjudged “ that all the lands described in the patents issued by the state of Wisconsin to the above-named plaintiff . . . ■are exempt from taxation of all and every kind to the date of filing the complaint herein, to wit, up to March, 1877, and that all tax sales thereof, or any part thereof, prior to that date, are absolutely null and void, and that all the certificates issued upon any sale of any of said lands prior to that ■date are hereby canceled and annulled; and the defendants, 'the board of supervisors of the county of Oconto, and Robert Ellis, county clerk of the county of Oconto, and their, ■and each of their, successors in office, agents, deputies, and employees, are commanded and enjoined perpetually to refrain and desist from selling or disposing of any of the tax certificates on any of said lands, or issuing any tax deed upon any of the lands, in either of said patents described, •on account of any sale thereof for taxes of any year prior to the year 1876, to wit, on any of the tax certificates in the •complaint in this action described. Said lands are described as follows, to wit: {An equal undivided nine-sixteenths of the following described lands ’ [including the lands involved in the first and second causes of action in the present case].”</p> <p>The same lands were again assessed for taxation for the year 1876 by the town of Marinette, and in May, 1877, the interests of Fletcher and Crowell were sold for nonpayment, ■and tax certificates issued to Oconto county. A tax deed in •due form was thereafter' issued to one W. H. Webster, as •assignee of said county, on the 17th day of September, 1885, .and duly recorded on the 22d day of October, 18S5; and in May, 1886, said Webster quitclaimed to the above-mentioned :S. A. Coleman an undivided one-fourth of whatever interest lie acquired under the tax deed, which interest, together with the right of action for the trespasses of the defendants, was conveyed to the plaintiff before the commencement of this suit.</p> <p>The Fletcher nine-sixteenths interest was conveyed by Fletcher November 5,1879, to Pray and Choate, who before the trespasses conveyed the same to the defendants. The Crowell three-sixteenths was conveyed some time after the year 1877, and came through mesne conveyances to Bray and Choate, who before the alleged trespasses conveyed the same to the defendants. The four-sixteenths interest which had been patented to Smith came through mesne conveyances to Bray and Choate September 25,1876, and had been conveyed to the defendants before the alleged trespasses. The trespasses sued for in the first and second causes of action were committed about April 1; 1894, and April 1,1895, and before conveyance of the lands to plaintiff. It was stipu-lated that the amount of damages recoverable by the plaintiff, by virtue of his one-quarter of twelve-sixteenths of the lands, was $10,000, if his title is valid.</p> <p>Maps showing the arrangement of certain towns in Oconto county at various stages in the history of that county were put in evidence, by which it appeared that town 39, range 12 east, in which the lands in controversy are situated, in 1876 .was in the town of Marinette, and: that said town was bounded on the northeast side by the state line between "Wisconsin and Michigan, which was marked by the Menomonee river, and was bounded on the south and west by an irregular line marked by a series of north and west jogs, but extending generally in a northwesterly direction, and, on the line between towns 23 and 24 in range 21 east, approaching to .within two miles and a half of-the state line; so that it appeared that the inhabited part of the town of Marinette, in the southeast point thereof, was connected by a very narrow strip with the great bulk of the,.territory of the town, lying to- the north and west of the northeast corner of town 23, range 20, which defendants claim was a practical infringement of* the contiguity of the territory of said town. It does appear, however, that the boundary of said town at that lime vras a continuous line, and no other town or territory intervened, or needed to be passed over in perambulating such boundaries.</p> <p>In 1894 and 1895 tbe defendants held patent title to certain other lands in said town 39, range 12 east, and cut timber thereon. Said lands were assessed for taxation by the town of Marinette for the year 1876, and were sold in May, 1877, a tax certificate issued to- Oconto county, and a tax deed issued May 10, 1880, to J. M. Simpson, as assignee of said county, and duly recorded May 21, 1880, which lands were quitclaimed by said Simpson to one William Urquhart June 11, 1886, and on May 23, 1896, were transferred by said Urquhart to the plaintiff, together with his rights of action for any trespasses thereon, which trespasses constitute the third and fourth causes- of action. It was stipulated that the damages to which plaintiff is entitled for timber cut in 1894 and 1895 on these lands are $2,500, if his title be valid; the only ground of attack on his title being an alleged invalidity of the tax proceedings by the town of Marinette, by reason of its shape and the asserted noncontiguity of these lands to the inhabited part of the town.</p> <p>It appeared by the findings that the greater part of the lands situated in township 32, ranges 20 and 21, where the town of Marinette is narrowest, were owned by the Peshtigo Company, which had its sawmills on, and also at the mouth of, the Peshtigo river, and that timber from said lands was floated down the said river; also, that a road extended from the village of Marinette, up along and near the west bank of the Menomonee river, to the vicinity of section 24, in township 32, range 22,,and that a road also extended from Peshtigo up the Peshtigo river to said lands situated in town 33, ranges 20 and 21, and no road connected the territory in the town of Marinette, along the Menomonee river, with the Peshtigo road, or the territory lying along the same, and that the interests of such localities were separate and distinct; also, that the lands in the town of Marinette, up to 1867, north of the line between townships 23 and 24, were valuable chiefly for pine timber, which was chiefly tributary to the Menomonee river, down which it was floated to mills at Marinette. The circuit court held the plaintiff’s title to both parcels of land valid, and rendered judgment for $12,500, from 'which the defendants bring this appeal.</p> <p>The appellants contend that plaintiff’s title, founded on tax deeds for taxes of 1876, is invalid: Eirst, because the claimed noncontiguity of the town of Marinette deprived its officers of power to assess or levy taxes on any of the lands; •second, that the lands involved in the first and second causes of action were exempt, from taxation in 1876, in the hands of Fletcher and Crowell, by virtue of ch. 429, Laws of 1867; and, third, if neither of the former contentions is sustained, that the interest of Fletcher in said lands has been adjudged exempt, and that such adjudication is conclusive in this action, as against the plaintiff as a privy with Fletcher.</p>

<p>Ceetioeaex to review proceedings of the circuit court for Eau Claire county: James O’Ueill, Circuit Judge. The respondent moved to quash the writ.</p> <p>A writ of certiorari having been issued to review certain contempt proceedings and order or judgment against the relator, and return thereto having been made, the respondent moved to quash the writ. From the record it appears- that prior'to 1893 an action to foreclose a mortgage was pending, wherein Herbert Hash, as trustee, was plaintiff, and the relator was the principal defendant; that on December 30, 1893, in said action, the court entered an injunctional order, among other things prohibiting the relator from interfering with the mortgaged property or collecting any rents thereof, which injunctional order was duly served on the relator; that after such service the relator did collect rents amounting to $114.83, which, notwithstanding repeated demands, lie failed and neglected to pay over to the receiver appointed in said action. In June, 1898, there was issued an order to show cause why the relator should not be punished for contempt for his disobedience of said injunction. Upon that order to show cause affidavits were introduced on both sides, an issue of fact joined, and testimony taken thereon, and on August 5th an order was made adjudging the relator guilty of wilful contempt of court in collecting said rents, and that said relator forthwith pay to the plaintiff or his attorney, L. A. Doolittle, the sum so collected, with interest and costs. On September 29th proof was made to the court by affidavit of demand and refusal of the relator to pay, whereupon the court entered an order adjudging the relator guilty of contempt in having wilfully disobeyed the order made by the court .on the 5 th of August in neglecting and refusing to pay said moneys; that said misconduct was calculated to, and actually did, defeat, impair, and prejudice the rights and remedies of the plaintiff; and that as punishment for said contempt the said Alexa/nder Meggett be committed by the sheriff to the common jail, to be detained and imprisoned until he shall have obeyed the order of August 5th by paying the sums therein specified; whereupon warrant issued, Meggett was arrested, gave bond for the jail limits, and has • continued so imprisoned ever since. He has made two motions to vacate said order of imprisonment,— one based simply on the record, the other based on the record and on the additional fact that thereafter he had been discharged in bankruptcy from his debts; among other facts it appearing that relator has had an income from a federal office exceeding $1,500 per year. Both of those orders were denied by the court below. So far as appears, no appeal has been taken or attempted from any of the above-mentioned orders.</p>

<p>ERROR to review a judgment of the municipal court of the city and county of Milwaukee: Emil Wallber, Judge.</p>

<p>Mandamus to Geo. W. Buenell, judge of the circuit court for Winnebago county.</p> <p>This is a mcmdamus action brought in this court, the object being to obtain a peremptory writ of mandamus requiring the respondent, as circuit judge, to enter an order in the circuit court for Winnebago county directing a writ of assistance to be issued to put the relator in possession of a crossing sixteen feet wide across the right of way of the Chicago & Northwestern Railway Company. The petition of the relator set forth, in detail, the proceedings, by which it appears that it had obtained condemnation of the sixteen-foot strip aforesaid, had paid the award of the commissioners in court, and, further, that the appeal from said award to the circuit court for "Winnebago county had been dismissed ; also that before bringing this proceeding it had applied to the circuit court for Winnebago county for a writ •of assistance, and that such application had been denied. Upon this petition an alternative writ was issued, and upon the return thereof the respondent made his return, which ■return was not denied in any material aspect upon the hearing.</p> <p>The facts which appeared by the petition and the return together are, in substance, that on the 8th day of July, 1898, ■the relator, which is a railway company incorporated under sec. 1820, Stats. 1898, for the purpose of carrying passengers only, commenced condemnation proceedings for the purpose of condemning a strip of land sixteen feet wide for right of way purposes across the right of way of the Chicago & Northwestern Eailway Company. The Chicago & Northwestern Eailway Company answered this petition, denying that the relator was a railroad corporation entitled to condemn such crossing. Upon the hearing of the petition, the prayer, thereof was granted, and an order made ■appointing three commissioners to determine the question •of the necessity of the taking of the. land described in the petition, and to determine the points and manner of such -crossing, and the amount of compensation to be paid therefor. Thereafter the commissioners met, and on the 30th ■day of January, 1899, filed their report, in which they determined that it is necessary for the petitioner to take, for right of way and crossing purposes, the strip of land sixteen ■feet wide (describing it) across the right of way of the Chicago & Northwestern Eailway Company. The commissioners also determined the points and manner of the crossing to be made with overhead trolley wires, and fixed the amount of the compensation to be paid by the petitioner. Subsequently the Chicago & Northwestern Eailway Company appealed from this report to the circuit court for "Winnebago county, and applied to tliat court for an order restraining the petitioner from putting in any crossing until such appeal was heard. This order was granted, upon the giving of an undertaking in the sum of $5,000, which was given. Subsequently the appeal came on to be heard in the circuit court, jury was waived, and the Chicago & Northwestern Railway Company claimed that the burden rested upon the petitioner to prove that it was necessary for it to condemn a crossing, because these proceedings were taken under sec. 1854, Stats. 1898, under which the question of the necessity of taking land was still open upon this appeal. This contention was overruled by the circuit court, which held that the affirmative was with the Chicago & Northwestern Railway Company.</p> <p>The said railway company then moved the court to dismiss the petition and all proceedings under it, on the ground that the petitioner was not a corporation entitled to condemn lands, and that all proceedings theretofore had were void. This motion being denied, the Chicago & Northwestern Railway Company declined to introduce any evidence in the case, but made a further motion to dismiss the petition and proceedings because the petitioner is an electric railway, building tracks in the public streets for the purpose of carrying passengers only, and has no right to cross a public railroad by condemnation proceedings, and for other reasons which are not ■ necessary to be here stated. This motion was also denied, and, no testimony being introduced, judgment was entered dismissing the railway company’s appeal, and dissolving the injunctional order above mentioned, except that the same was to remain in full force for ten days, in order to enable the railway company to apply for a stay of proceedings. Thereupon the Chicago & Northwestern Railway Company immediately appealed, and gave notice thereof, and moved the circuit court for a continuance of the order pending such appeal, and the circuit court thereupon fixed the penalty of such undertaking at $15,000, and the condition thereof that, if the judgment or any part thereof be affirmed, said appellant should pay all. costs and damages which might be awarded against it, and all which the said Oshkosh, Algorna dk Black ~Wolf Railroad Company might sustain by reason of thé continuance of the injunctional order. This undertaking was filed and approved by the court within the time required, to wit, on the 21th. day of May, 1899.</p> <p>On the 3d day of June, 1899, the Oshkosh, Algoma <& Black, Wolf Railroad Company applied to the circuit court for an order fixing the sum and effect of an undertaking to be given by it to abide and perform any final judgment which ' should be rendered in favor of said Chicago & Northwestern Railway Company upon its appeal, and for an order vacating and dissolving the injunctional order already entered. This motion was denied by the court, but the court fixed the amount of the bond at $15,000, in order that the same might be made, and the same was made and filed on the 10th of June, 1899, and approved as to form and sureties, but refused principally because of the grave character of the questions involved in the main case.</p> <p>On the 23d of June, 1899, the petitioner here moved for a writ of assistance, which motion was denied by the circuit court.</p> <p>[No brief on file.]</p>

<p> Railroads: Frightening horses at crossing: Contributory negligence of driver: Failure of flagman to give warning: Excessive speed: Proximate cause. </p> <p>1. In an action against a railway company for injuries received by being thrown from a wagon drawn by a runaway team alleged to have been frightened at a street crossing by reason of the negligence of defendant's flagman in failing to give warning of the approach of a train, it appeared conclusively that plaintiff failed to look in the direction whence the train was coming until after the horses became frightened, and that, had he looked, he could have seen down the track in that direction more than 170 feet. Held, that the plaintiff was guilty of contributory negligence precluding a recovery.</p> <p>2. Failure of the flagman ata street crossing to give warning'of the approach of a train which stopped before reaching the street would not render the company liable for injuries received by a traveler as the result of his team becoming frightened at the train.</p> <p>3. The running of a train at an unlawful rate of speed is not the proximate cause of injuries r'eceived by a traveler by reason of his horses taking fright at its approach.</p>

Croix county: E. G. SiebegKee, Judge. This is an action to recover for personal services rendered by the plaintiff to the defendant. It appeared from the evidence that the defendant was a man of seventy-five years of age at the time of the trial of the action, and had lived for many years on a farm in St. Croix county, Wisconsin, with his family, which consisted of his wife, one son, Charles, and two daughters, one of whom was the plaintiff.

Action for an accounting and settlement of partnership transactions.

<p>Appeal from a judgment of tbe circuit court for Dane county: R. G. SxebeoKBR, Circuit Judge.</p> <p>The plaintiff’s cause of action may be briefly stated as follows: On October 14,1895, plaintiff was riding along Monroe street, in the city of Madison, in a carriage. The horses became frightened at the city’s steam roller, which was suddenly started without warning, and the plaintiff was thrown cut of the carriage and injured. The complaint contains some allegations in regard to a “ deep and dangerous ditch in the street,” left without a railing or guard, and that the street was too narrow at this point for a team to be driven along safely; but this claim seems to have been abandoned cn the trial, and the right to recover was apparently based upon tbe existence of the steam roller in the street, and its sudden starting without warning, occasioning fright to the team behind which she was riding. The answer admitted the presence of the steam roller in the street, denied the in sufficiency of the street, and set up the defense of contri ou-tory negligence. At the close of the evidence the court directed a verdict for the defendant. The plaintiff brings the case here for review on appeal from the judgment.</p>

G. SiebeoKER, Circuit Judge. February 15,1891, the parties entered into a written agree*ment by which the plaintiff agreed to sell to the defendant “ alb of the dirt on lots [described] above a certain grade,, indicated by stakes on the corners of said lots, being 2,000 yards, more or less, at six cents per cubic yard.

<p>Appeal from a judgment of the circuit court for Sauk county: R. G-. Siebeckeb, Circuit Judge.</p> <p>This is an action of ejectment for a farm of 122 acres'. Roth parties claim title under Thomas O’Malley, the plaintiff founding her title upon a decree of divorce between herself and Thomas O’Malley rendered by the circuit court for Sauk county September 14,1897, and the defendant Bridget Frielte founding her title upon a warranty deed executed by Thomas O’Malley to herself December 18, 1897. The principal and controlling question upon the trial was whether the decree in the divorce action was a valid decree and constituted an effective transfer of the title of the land in question to the plaintiff. The court held the decree valid, and from a verdict in favor of the plaintiff- the defendants appeal.</p>

<p> Vendor’s lien on land: Abrogation by statute: Death of vendee: Homestead. </p> <p>1. The general rule is that a vendor of real estate has an equitable right to a lien thereon to secure unpaid purchase money, though such right is not an interest in the land, but the mere capacity to acquire an interest through the interposition of a court of equity.</p> <p>% The right to a vendor’s lien for unpaid purchase money may be abrogated by statute, but in the absence of such a statute.it is not lost by the death of the vendee.</p> <p>3. Sec. 2271, Stats. 1898, providing that a homestead, in case of the death of its owner without having lawfully devised the same, shall descend to his heirs free of all claims or liens, with certain exceptions not including liens for unpaid purchase money, abrogates, as to such property, the common-law right to acquire a vendor’s lien thereon.</p> <p>[Syllabus by Marshall, J.]</p>

<p> Land contracts: Forfeiture: Void or voidable 9 Election: Recovery of purchase price: Limitations: Covenants: Conditions precedent: Tender of deed. </p> <p>1. By a land contract the purchasers bound themselves to pay the purchase price in instalments at specified times, and the vendor agreed that if the purchase price and interest should be fully paid he would execute and deliver a warranty deed of the premises within a reasonable time after demand. The contract also provided that if the purchaser failed to make any of the payments as specified the agreement should thenceforth be “utterly void and of no effect and all payments thereon forfeited, subject to be revived and renewed ” by the vendor or the mutual agreement of both parties. Held, that failure to make payments as specified did not render the agreement absolutely void so that no action at law could be maintained on it by the vendor, but gave the vendor an election to declare the contract void or to continue it in force and sue for the purchase price or for specific performance.</p> <p>2. The action of the vendor in such case in deeding the land to a third person and assigning the contract to. him, and the bringing of a suit by the assignee for the unpaid purchase money, are held to be an election to declare the contract still in force.</p> <p>3. The vendor and his assigns, not being bound by the contract to make their election within any given time, may exercise it at any time before they are cut off by the statute of limitations, where it does not appear that the vendees have suffered any injury or loss for which they might obtain relief in equity.</p> <p>4. The fact that the deed from the vendor in such case antedates the assignment of the contract is of no significance, unless it was shown that the conveyance by deed was an independent transaction and intended to cut off the vendees’ rights.</p> <p>5. A clause in said contract imposing upon the vendor the duty of grading streets, etc., is held to be an independent covenant and not a condition precedent to a recovery of the purchase price.</p> <p>6. The covenant as to the giving of the deed being that the vendor will, after full payment and within a reasonable time after demand, execute and deliver the deed, tender of a deed before commencing action to recover the purchase price is unnecessary.</p>

<p> Bill of exceptions: Extension of time for settling: Discretion. </p> <p>Refusal to permit an unsuccessful party to file exceptions to the findings, and to extend the time within which to settle a bill of exceptions, after the time therefor had expired, is held not to have> been an abuse of discretion, where the record failed to disclose any adequate excuse for the delay of over six months after the entry of judgment, or to show that a bill of exceptions would be of any advantage if settled.</p>

<p>Appeal from an order of the circuit court for Sauk county: H. G. SiebeoKee, Circuit Judge..</p> <p>, Counsel for the appellant True contended, inter alia,, that respondent was seventeen years old when the transactions took place, and must have known whether his father died testate or intestate. He neglected to investigate and ascertain his rights in his father’s property for twenty-seven years. He was therefore guilty of the grossest kind of laches. Boyers v. Van Hortwick, 87 "Wls. 414; Thomas v. Thomas, SSWis. 88; Melonsv. PabstB. Go. 93"Wis. 153; Penn M. L. Ins. Go. v. Austin, 168 U.-S. 685; Higgins v. Grouse, 147 N. Y. 411; Angelí, Limitations, § 187; Farnham v. Brooks, 9 Pick. 212; Preston v. Hor'witz, 85 Md. 164; Perry, Trusts, § 864.</p>

<p>Appeal from a judgment of the circuit court for Dane county: R. G-. Siebeckejk, Circuit Judge.</p> <p>This is an action upon the official bond of the defendant Reindahl. as register of deeds of Dane county. The complaint charges that Reindahl was elected register of deeds-of the said county, November 8,1898; that on November 18,. 1897, the county board of supervisors of Dane county, in. pursuance of ch. 165, Laws of 1897, duly adopted a resolution making the office of register of deeds of Dane county-a salaried office, and’ prescribing the salary thereof; that on December 1Y, 1898, the defendant Reindahl as principal, and the other defendants as sureties, executed and delivered to the plaintiff their bond in the sum of $5,000, conditioned for the faithful performance of the duties, of register of deeds, and, further, that the register “ should faithfully and regularly collect all fees, as provided by the laws of the state of Wisconsin, and pay over to the said county of Reme all such sums of money collected as fees, as required by chapter 165 of the laws of 189Y.” The complaint further alleges the approval of said bond, and that between January 2 and March 31, 1899, Reindahl, as register, received, as fees from said, office, $966.85, which he refused to account for or pay over to the county, and judgment is demanded against him and his sureties for said sum with interest and costs. A general demurrer to said complaint was sustained, and judgment entered dismissing the complaint, and from such judgment the plaintiff appeals.</p> <p>To the point that where a statute, even though it be a revision of former acts, contains a clause repealing certain acts, the presumption is conclusive that it was the legislative intention to keep all other acts in life, they cited Lewis v. Stout, 22 Wis. 234; Simmons v. Bradley, 2Y Wis. 689; Smith v. Eau Olaire, Y8 Wis. 45Y; Bentley v. Adams, 92 Wis. 386; Bird v. Sellers, 122 Mo-. 23; Carpenter v. Jones, 121 Cal. 362; Ruge v. Gallagher, 22 Mise. (FT. Y.), 5Y2; Gaston v. Merriam, 33 Minn_2Yl; State v. Young, 30 S. 0. 399; State v. Pollard, 6 E. I. 290.</p> <p>They argued, among other things, that in 1898 a complete revision was made of the laws in force in this state pertaining to the compensation of register of deeds, etc., and the fees collected by themy and consequently the prior laws relating to the same subject were repealed. State v. GanypbeTL, 44 Wis. 529; Burlcmder v. M. & St. P. B. Go. 26 Wis. 76; Moore v. S. da St. O. E. Go. 34 Wis. 173; Oleson v. G. B. da L. P. E. Go. 36 Wis. 383; Gurry v. O. da _ZV W. E. Go. 43 Wis. 665; Schneider v. Staples, 66 Wis. 167; State ex rel. Ennis v. Jcmesville, 90 Wis. 157.</p>

G-. SiebeoKee, Circuit Judge. Action by an employee of defendant to recover compensation for personal injuries received by Mm by the explosion of a locomotive engine, claimed to have béen caused by defendant’s keeping it in use with knowledge, or reasonable means of knowledge, that it was defective to a degree which rendered such an accident among the natural and reasonable probabilities, and one which, in the exercise of ordinary care, it should have apprehended.

<p>Appeal from a judgment of the circuit court for Dane county: R. G-. Siebboker, Circuit Judge.</p> <p>The facts are stated in the opinion.</p> <p>They contended, vnter alia, that at a point where it would be least expected or anticipated a two-inch obstruction had been created, which the «expenditure of a few cents in the placing of a beveled strip ©i other contrivance along the end of the walk would have avoided. It was error for the trial court to hold, as matter of law, that such obstruction did not constitute a defect. 'Morrison v. Madison, 96 Wis. 452; George v. Haverhill, 110 Mass. 506; Marvvn v. New Bedford, 158 Mass. 464; Holmes •m. Drew, 151 Mass. 518; Bcwster. v. Qedar Rapids, 103 Iowa, 1599; Pittenger v. Hamilton, 85 Wis. 356; Schroth v. Prescott, «68 Wis. 678; Koenig v. Arcadia, 75 Wis. 62.</p>

G-. SiebecKEk, Circuit Judge. This is an action to recover for personal injuries suffered by the plaintiff while in the employ of the defendant in the defendant’s brickyard on the 4th day of May, 1894, the plaintiff being then a minor of the age of sixteen years and eleven months. The accident happened while the plaintiff was operating a loaded car running on a small railroad track in the defendant’s brickyard, which was used to haul clay up out of the clay pit.

<p>.Replevin: Provisional remedy not essential to action: Ees ad judicata: Parties and privies: Sale of chattels: False representations: Intent to defraud.</p> <p>1. The provisional remedy in a replevin action under the Code, to obtain immediate possession of the subject of the controversy, is not essential to the commencement or maintenance of the action, hence any error in such proceeding does not affect the jurisdiction of the court to entertain such action and proceed therein to judgment.</p> <p>.2. One Nelson obtained possession of property from plaintiffs by inducing them by false representations to sell the same to him. Part of such property Nelson thereafter sold to innocent third persons, and the balance was taken on an execution issued to enforce a judgment against him. Subsequently, plaintiffs rescinded the sale for fraud and commenced this action against the officer to recover possession of the property held by him, and a second action against Nelson for damages in respect to the property that could not be recovered by reason of its having been sold by him to innocent third persons. The action for damages proceeded to judgment. Such judgment was offered in evidence on the trial in this action as binding upon the defendant, on the ground that he could claim no better right than Nelson. The evidence, on objection, was ruled out. Held, that the ruling was proper, first, because if defendant obtained any interest in the property in controversy it vested in him before the commencement of the action against Nelson; and second, because the property in controversy in this action is not the same property in controversy in the action against Nelson.</p> <p>3. The doctrine of res adjudicata extends to and binds privies of the parties to the litigation as well as the parties themselves, but privity, under such rule, exists only in relation to the subject matter of such litigation. The decision in an action becomes a rule of ' property as to the subject matter thereof and passes with it to all persons subsequently claiming under such parties, but does not attach to any other property, the limit of its effect as to privies being the limit of the particular property, property right, subject matter, or thing involved in the litigation.</p> <p>4, A sale of property procured by false representations, and a purchase with existing intent on the part of the purchaser not to pay for the subject of his purchase, are distinct actionable wrongs. The former is complete without the existence of an intent not to pay for the property, and the latter is complete though there be no false-representations to induce the sale. In case of the latter wrong, false representations and undisclosed insolvency are not necessary elements, but are evidentiary facts tending to establish the intent not to pay, though the latter of itself is not sufficient to establish such fact.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeal from a judgment of the circuit court for Outa-gamie county: Jora GoodlANd, Circuit Judge.</p> <p>The plaintiff brought this action to recover for dental services rendered to the defendant, alleged to have been of the reasonable value of $250. The defendant answered that such services were so improperly, unskilfully, and negligently performed as to be worthless,.and in his counterclaim allegéd that by reason of such negligent and unskilful work he was damaged in the amount of $1,000. The jury returned a verdict for the plaintiff for $228.30. A motion for a new trial was denied, and from the judgment entered upon the verdict the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Outa-gamie county: John Goodland, Circuit Judge.</p> <p>Plaintiff sued upon an order in the following words:</p> <p>“ Mission, Outagamie Co., Wis. June 1, 1897.</p> <p>“ Buokstaff-JEdmards Co.:</p> <p>“Please pay to the order of G. E. Woodward and Ed. Erickson the sum of $600, the same to be the last $600 due me on my contract, and charge the same to my account.</p> <p>“ Joseph Smith ”</p> <p>which order was indorsed to him in blank by G. E. Wood- ■ ward and Ed. Erickson. It appeared that at the'time of the giving of said order, to the knowledge of the plaintiff, defendant was prosecuting a logging and lumbering contract for the Buckstaff-Edwards Company.</p> <p>After the introduction of the order in evidence, defendant made several offers to prove, in accordance with the allegá-tions of his answer, that the consideration of the order was the performance of a contract by Woodward & Erickson to drill a well for him, the same to be drilled until running water was procured or until lie directed cessation; that the contract had been breached; and that the plaintiff had full knowledge of the consideration and of the breach, and at the time of the giving of the order undertook to see that the contract was carried out. These offers of evidence were rejected by the court, who stated in the course of the trial: “ My view is that the defendant can only defend against this order by showing damages that have accrued to him by reason of the plaintiff’s failure to carry out the promise which he then made.”</p> <p>A verdict was directed for the plaintiff, and judgment entered thereon for the amount of the order and interest, from which defendant appeals.</p>

<p> Highways: Injuries from defects: Damages limited to amount named in claim: Evidence: Court and jury: Instructions: Proximate cause: Contributory negligence: Burden of proof . </p> <p>1. Under sec. 824, Stats. 1898 (providing that “no action upon any claim or cause of action for which a money judgment only is demandable . . . shall he maintained against any town unless a statement or hill of such claim shall have been filed with the town clerk to he laid before the town board of audit ”), the damages recoverable in an action against a town for personal injuries are limited to the amount named in the claim filed.</p> <p>2. In an action to recover for injuries alleged to have been caused by defects in a corduroy road, evidence of a medical expert that such an accident as plaintiff claimed to have suffered might produce such an injury as that received by him, and that plaintiff’s injuries incapacitated him to the extent of about two thirds, although some-vphat conjectural, is held not to constitute material error.</p> <p>3. It was not error in such a case to permit proof of the generally bad condition of the corduroy road at and in the vicinity of the place in question two days before the accident. Olson v.'ImcIí, 103 “Wis. 38, distinguished.</p> <p>4. In an action to recover for personal injuries, remarks of the trial judge to the effect that he did not think there was any negligence in the conduct of plaintiff up to the time the doctor was called in, that the doctor got to his home at about the same time he did, and that negligence could not be predicated on that as a matter of law,— such remarks referring merely to the matter of promptly calling a physician, and there being no dispute as to that fact,— are held not error.</p> <p>5. In an action for injuries alleged to have been caused by a defect in a highway, defendant olaimed that such defect was caused by a sudden and heavy rainfall the night before the accident. One of the questions in the special verdict was, “Was such defective condition of the highway the proximate cause of the plaintiff’s injury? ” In submitting this question the court instructed the jury as to the meaning of “proximate cause,” but did not specifically require them to find whether the condition of the highway prior to said rainfall was the proximate cause of the injury. Held, not misleading, in view of other full instructions on that subject.</p> <p>6. The burden of showing contributory negligence in such a case is upon the defendant, except when such negligence is disclosed by the testimony on the part of the plaintiff.</p> <p>7. The question of plaintiff’s contributory negligence is held to have been properly submitted to the jury, notwithstanding the sudden and heavy rainfall the night before the accident.</p>

Action to restrain the sale of lands for taxes alleged to be void for various reasons, some of which go to the groundwork of the tax. Upon a duly verified complaint a temporary injunction was obtained preventing a sale of the lands for the taxes complained of, pending a settlement of the controversy between the parties.

<p>Amendment of pleading: Replevin: Measure of damages: Depreciation in value: Punitory damages: Property not in esse: Verdict: Immar terial errors.</p> <p>1. An oral decision allowing an amendment of the complaint is sufficient, and the court’s declaration of what the decision was, reduced to writing and signed ten days later nunc pro tunc, will not be disregarded on appeal, at least upon'the conflicting recollection of counsel.</p> <p>2. For a tortious taking of personal property amounting to á conversion, . the owner, when he cannot obtain his property, may recover in replevin its value at the time of the taking, and interest from that time.</p> <p>3. Where in such a case the owner recovers either the possession of the property or its value as of a later date than the tortious taking, he may recover in addition, as damages, any depreciation in the value of the property which has taken place from any cause pending the detention, even though such depreciation was not due to defendant’s fault or neglect.</p> <p>4. An ice-house, in which plaintiffs had stored ice pursuant to a renting partly oral and partly by letter, was purchased by defendant, who also received a bill of sale, in general terms, of personal property. Plaintiffs were about to remove the ice, but defendant, being in doubt as to whether it had been transferred by the bill of sale or was the property of the vendor of the ice-house, demanded evidence of plaintiffs’ title. Plaintiffs refused to furnish such evidence, although they might easily have done so, and defendant thereupon refused to permit them to remove the ice unless they exhibited a lease. No wrong motive, malice, or wantonness in the withholding of the ice being shown, plaintiffs were not entitled; in replevin, to recover punitory damages.</p> <p>5. In replevin for a quantity of ice it appeared that the ice had dwindled from 1,800 tons at the time of the seizure by defendant to forty tons at the time of the trial, and had become a conglomerate mass not worth the cost of removal. Held, that the property in controversy had become practically nonexistent, and that an insufficient description thereof in the verdict and the failure to find the value per ton so as to enable delivery of a part in diminution of the recovery were immaterial errors.</p>

<p>Appeal from a judgment of the circuit court for Lang-lade county: Jonsr Goodlakd, Circuit Judge.</p> <p>This is a consolidated action brought by plaintiffs upon nineteen policies of insurance, aggregating $.20,500, covering certain lumber owned by them,, which, it is claimed, was destroyed by fire on May 6 and 7, 1898. The defendants answered, admitting the fire and compliance with the conditions precedent as to notice and proofs of loss, and denying the value of the property destroyed. The answer also sets up, as a defense, fraud and false swearing by the plaintiffs in relation to the subject matter of the insurance, under a condition in the policy which says: “ This entire policy shall be void ... in case of any fraud or false swearing by the insured touching any matter relating to this insurance, or the subject thereof, whether before or after loss.’7 It was charged that the plaintiffs-were guilty of fraud and false swearing in their proofs of loss, and also in their examination under the policy, wherein they stated their loss to be 3,011,032 feet of lumber, besides some bicycle strips and shingles, well knowing that such statements were false. These false statements Avere alleged to have been made for the purpose of deceiving the defendants as to the amount of the actual loss by said fire, and by that means obtaining payment of a sum largely in excess of the real loss sustained.</p> <p>A special verdict was returned'by the jury, in which they found (1) that the lumber was wholly destroyed by fire on the night of May 6, and morning of May 7, 1898.; (2) that said lumber Avas insured in the sum of $24,000, and that the defendants carried insurance thereon in the sum of $20,500; (3) that the plaintiffs did not make any false entries, in any of their books of account relating to the insurance or the subject thereof; (4) that thé plaintiffs did not swear falsely, either in their proofs of loss or in their examination under the policies, touching any matter relating to the insurance or the subject thereof; (5) not answered; (6) that the amount of lumber destroyed by fire Avas 2,602,544 feet, bicycle strips. 17,761, shingles 498£ thousand; (7) that the value of the material destroyed was’$27,109.75.</p> <p>The proofs of loss showed the aggregate amount of maple, birch, ash, pine, rock elm, soft elm, basswood, hemlock, and cedar lumber destroyed, with the price per thousand feet. The total number of feet was placed at 3,011,032, of the value of $31,691.16, including the bicycle strips, 17,761 pieces. The shingles were valued at $373.88, making the total value of the property destroyed $32,066.04.</p> <p>The amount of lumber destroyed seems to have been arrived at in the following manner: The plaintiffs claimed to have made an inventory on December 29, 1897. To this they added logs cut that winter on a quarter section of land they had purchased, and logs purchased of farmers, and from the total deducted lumber sales up to the time of the fire and logs unsawed at that date. From these figures we get the following:</p> <p>Inventory December 29,1897. 1,606,739</p> <p>Dogs from S. E. i 20, 81, 12.•.'.. 1,187,720</p> <p>Dogs purchased. 454,730</p> <p>3,249,189</p> <p>Dumber sales. 100,000</p> <p>Dogs unsawed. .. 125,000'</p> <p>The defendants claimed that the inventory had been padded, and that no such amount of lumber was on hand; that the scale of the logs cut on plaintiffs’ land had been fraudulently increased over 300,000 feet; that the amount of logs purchased from farmers had been increased 100,000 feet; and that such increase had been in the most valuable kinds of logs.</p> <p>A motion to set aside the verdict was denied, and judgment was entered for the plaintiffs. The insurance companies have brought this appeal.</p>

<p>Appeal from judgments of the circuit court for Langlade county: John Goodland, Circuit Judge.</p> <p>The defendants, sundry insurance companies, insured the plaintiffs, Wunderlich Bros., to the amount of about $24,000, “on lumber,” etc., “owned by Wunderlich Bros., or held in trust or on commission, or sold but not delivered, piled in their mill yard,” commonly designated the. “lumber clause.” Certain of these policies, amounting to some $12,000 or $14,000, also contained what is known as the “loss-payable clause,” viz.: “Loss, if any, payable to George E. Foster Lumler Oomj>am,y, as their interest may appear.” On May 6, 1898, the entire stock of lumber, claimed to aggregate about $30,000 in value, was destroyed by fire, and the plaintiffs, brought suit for the insurance against the insurance companies, defendants. The George E. Foster Lumber Oomjpcmy was impleaded upon an. order of the court, and served a pleading called an answer and a cross complaint, in which it set up, besides the writing of the policies above mentioned, the fact that on February 23, 1898, the plaintiffs made to it a proposition as follows:</p> <p>“We hereby give you an option to buy, as you may elect, all our lumber of the following kind, which we may have sawed and will saw during this season, at the following prices, f. o. b. Antigo: [Different kinds and grades of lumber specified, with prices]; to be hauled and shipped whenever you direct, you to pay fifty per cent, cash as fast as every 300 M. are in piles, and balance as fast as shipped. .We to keep lumber insured for one year, and policies to be assigned to you as your interest may appear. . . . All lumber to be shipped not later than November 1, 1898, or paid for less the amount of hauling and loading as near' as can be estimated. ¥e will have. about 600 M. basswood, 600 M. soft elm, and 350 M. birch.”</p> <p>That option 'was accepted the following day according to its terms. None of the lumber so bargained for had been separated or ascertained at the time of the fire, but was mixed in the piles with other grades not purchased.</p> <p>It Was further alleged by the appellant that the purchase price of said lumber was about the sum of $12,000, of which it paid $2,000 at the time of making the bargain, and that the value of the lumber at the time of the fire was about $17,000. Appellant also alleged that at the time of said first contract it was agreed and understood that, whether the title to said lumber passed to the-defendant or not, its interest therein was and should be the entire value of the lumber, less the amount of the unpaid purchase price, and the word “ interest ” in said contract was used in that meaning; that the agreement to keep the lumber insured and policies assigned to it as its interest -might appear was urn derstood to require policies to be assigned to the full value of the lumber sold to it; that the indorsement upon the policies of the “ loss-payable clause ” was made at the request of the plaintiffs, without the knowledge of the defendant as to the amount thereof; that 'the defendant did not accept such policies as a compliance with the provisions of its contract ; and that the plaintiffs failed and neglected to make payable to said defendant enough of said insurance to cover the full value of its said lumber,— and prayed, as against the plaintiffs, that a proportionate part of all insurance recoverable by them should be adjudged to be payable to the appellant. And by its so-called “ cross-complaint ” setting up substantially the same facts, it prayed that it might recover from the defendant insurance companies, by virtue of the so-called “lumber clause,” the proportion of the total insurance which the market value of the lumber contracted to be sold to it bore to all the lumber in the yard, to wit, about seventeen thirtieths; and by a second so-called cross complaint, addressed to those insurance companies in whose policies was found the “ loss-payable clause,” demanded recovery of the full amounts of their respective policies, having alleged in addition, as to them, the giving of notice and proofs of loss. The defendant insurance companies defended against any liability to the plaintiffs on the ground of their fraudulent representations in the making of proofs of loss, which controversy is still undetermined.</p> <p>Upon the trial of the issues raised by the appellant’s pleading, the defendant companies objected to any evidence under the cross complaint as to them, which objection was sustained, and judgment rendered in favor of the defendant companies and against the appellant, dismissing its cross complaint. Upon the issue between the plaintiffs and the appellant a similar objection was sustained, except as to the one fact, which was established and found, of a tender before the commencement of the suit by the plaintiffs to the appellant of the $2,000 paid by the latter upon the contract of purchase, with interest to the time of such tender; that said tender had been kept good, and was confirmed by the delivery of the money at that time into the hands of the clerk. Judgment was^ thereupon rendered against the appellant upon its answer and prayer for relief'against the plaintiffs, with costs. The appeal is from both said judgments.</p> <p>They contended, inter alia, that an agreement for insurance is an express provision, negativing any implied condition of continued future existence of the subject matter. Where a person contracts to procure insurance on property, or it is his duty to do so as an agent, in case of a breach of the contract or duty he must respond in damages to the amount he should have insured for, and becomes himself the insurer. Me Alpine v. St. Olara F. Academy, 101 Wis. 468; Lancaster Mills v. Merchants’ C. P. Go. 24 Am. St. Eep. 586, 609; Beach, Cont. § 1110; Lindsay v. Pettigrew, 5 S. Dak. 500; Sutherland, Dam. (2d ed.), §§ 112, 862; 1 Am. & Eng. Ency. of Law (2d ed.), 1068; Strong i>. Mm%ufacturers‘ Ins. Go. 20 Am. Dec. 515, note; De Tastett v. Grousillat, 2 Wash. G. 0. 132; Park .v. Hamond, 4 Oampb. 344; Douglass v. Murphy, 16 U. O. Q. B. 113. Appellant is a direct party to - the insurance contracts; it is not merely an appointee named to receive moneys which plaintiffs may recover; it may sue and recover directly in its own right. The clause “in trust or on commission, or sold but not delivered,” is in legal effect the same as “ for whom it may concern.” ' California Ins. Go. v. Union O. Go. 133 U. S. 381, 409; Lee v. Adsit, 31 1ST. Y. 81, 90; De Forest v. Fulton F. Ins. Go. 1 Hall, 135. If anything it is broader in its scope because it was heLd that “ for whom it may concern ” did not include anything but a legal interest or. ownership. That is, it would not cover liens or other equitable interests outside of those of the nominal insured. McDonald v. Black’s Ad/rn’r, 55 Am. Dec. 448, 452. But see contra, Pacific Ins. Go. v. Oatlett, 4 Wend. 15, 19. But the words “sold, but not delivered ” cover our case exactly. They relate to goods ■of which there is an executory sale, but no legal delivery so ■■as to pass legal title. Waring v. Indemnity F. Ins. Go. 6 Am. Rep. 146, 148; Lockhart v. Cooper, 42 Am. Rep. 514, •517; lucas v. Ins. Go. 48 Am. Rep. 383, 389. The words “ in trust” mean “goods with which.the assured was intrusted, not goods held in trust in the strict legal sense.” Strohn v. Hartford F. Ins. Go. 33 Wis. 648, 655; Home Ins. Go. v. Baltimore W. Go. 93 U. S. 527. The person in whose name the insurance policy is issued may sue and recover the whole •amount as trustee, etc.; but the beneficiary may also sue in his own name and in his own behalf directly on the policy .as if he were particularly named therein. Strohn v. Hartford F. Ins. Go. 33 Wis. 648; Johannes v. Phmix Ins,. Go. ■66 Wis. 50, 56; Jefferson Ins. Go. v. Gotheal, 7 Wend. 72; Pitney v. Glen’s Falls Ins. Go. 65 N. Y. 6, 18; Somes v. Equitable S. Ins. Go. 12 Gray, 531; Farrow v. Comm. Ins. Go. 18 Pick. 53; Willimns v. Ocean Ins. Go. 2 Met. 306; Pacific Mut. Ins. Go. v. Oatlett, 4 Wend. 79; Lazarus v. Comm. Ins. ■Go. 5 Pick. 76; Sargent v. Morris, 3 Barn. & Aid. 280; Sleeper v. Union Ins. Go. 20 Am. Rep. 706; Ballard v. Merchants’ Ins. Go. 29 Am. Dec. 444; 1 Ency. of PI. & Pr. 392, note; 8 Am. '& Eng. Ency. of Law (1st ed.), 88, 89.</p>

<p>Appeal from, a judgment of the circuit court for’Shawano ■county: JohN GoodlaND, Circuit Judge.</p>

<p> Waters: Easements: Injunction against filling up reservoir. </p> <p>A flume and mill races below a dam constituted a reservoir from which, by virtue of a certain agreement and conveyances between the predecessors in interest of the respective parties, plaintiffs had the right to draw water for their flouring mill. The defendant city, having become the owner of the fee of a part of the land on which such flume and races were, threatened to fill them up on the land so acquired and across an adjoining public street. Such a reduction in the size and capacity of the reservoir would tend, at certain . stages of the water in the river, to reduce the supply of water at plaintiffs’ mill and impair the use of their property. Held, that the remedy at law would be inadequate and that plaintiffs were entitled to have such filling restrained by injunction.</p>

<p>Appeal from a judgment of the circuit court for Douglas ■county: A. J. Yulte, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: A. J. YiNje, Circuit Judge.</p>

<p>Appeal from an order of the circuit court for Douglas ■county: A. J. Vinje, Circuit Judge.</p>

<p> Towns: Division: Validity of ordinance of county board: Apportionment of debts: Liability of new town to old. </p> <p>1. Under the provisions of seo. 674, S. & B. Ann. Stats., if an ordinance of the county board dividing a town lias not been vacated by a court of competent jurisdiction, its validity cannot be called in question, after the expiration of two years from its date, on the ground either that it was not published as required by said seo. 674, or that the consent of the commissioners of public lands was not obtained as required by sec. 258&</p> <p>2. Under secs. 672, 960£f, S. & B. Ann. Stats., when a new town was created from part of a town already existing and the indebtedness of the old town was apportioned, the two towns did not become joint debtors, but the old town remained legally liable for the whole debt, and the new town became liable to the old town for its share; and payment of the whole debt by the old town was not a condition precedent to the recovery of such share from the new town.</p>

J. Yinje, Circuit Judge. Action to quiet title. The complaint states, in substance, that plaintiff is a county agricultural society duly incorporated under the laws of this state, and as such is and has been since January 1, 1894, in possession of certain lands described, using the same exclusively for fair grounds under a lease for that purpose from the owner, expiring January 1, 1899, requiring an annual payment of one dollar and the taxes assessed on the lands to the…

<p> Elections: Publication of notices: Compensation: County cleric: Authority to make contract: County board: Compromise of claim: Notice of statutory requirements, </p> <p>1. Sec. 21, Stats. 1898 (which changed the law relating to the publication of general election notices by Bounty clerks), controlled the publication of such notices only as were transmitted to the clerks aftet said statutes went into effect, September 1,1898, even though the election was to be held after that date.</p> <p>2. Sec. 21, Stats. 1898, requires the county clerk to publish as therein specified so much of the general election notice received by him from the secretary of state as relates to the questions and officers to be voted for in his county. Sec. 58 provides that when a proposed constitutional amendment or other question is to be submitted to the people, the secretary of state shall, not less than fifteen days-before the election, certify the same to each county clerk, and the same shall be included in the publication of nominations for ■office provided for in sec. 36. Held, that the specific provision of sec. 58 governs and controls, the more general provision of sec. 21, and should have been followed in the publication of notice of the submission of a proposed revision of the banking law, although a copy of such proposed revision was transmitted to the county clerk with the general election notice.</p> <p>3. Sec. 9, ch. 288, Laws of 1893, required the secretary of state to publish the general election notice in a newspaper at the seat of government once a week from the date thereof until the election. Sec. 10 required the county clerk to cause the substance of such notice-“to be published in at least one newspaper in the county,” but made no mention of the number of insertions, the former express provision for a weekly publication (sec. 18, R. S. 1878) having been superseded upon the adoption of the Australian ballot system. Held, that but one insertion of the notice required by sec. 10 was authoi-ized.</p> <p>4. A county clerk has no authority to cause or contract for any publication of election notices except such as the law prescribes, and persons with whom he contracts for such publication are bound to take notice of said limitation.</p> <p>5. The fees for each publication of election notices being prescribed by law, the county board of supervisors has no power to compromise a claim for such publication, or to allow any sum in excess of the amount legally due.</p> <p>6. Where a daily newspaper accepts for publication the information to voters it is chargeable with notice that a daily publication is required by sec. 36, Stats. 1898, in counties wherein such a newspaper is published, and if it fails to comply therewith it is not entitled to any compensation.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: A. J. YiNje, Circuit Judge.</p> <p>Appeal from judgment for defendant entered upon sustaining a' demurrer ore tenus to the complaint, which alleges that the defendant, at the city of Superior, on May 14,1898, in the presence of others, maliciously uttered of the plaintiff the words: “ Get out of here, you son of a bitch. I Imow you are nothing but a damned old bitch,” — and meant thereby that the plaintiff was a common whore and prostitute, had been and was guilty of the crime of adultery with different men, and was addicted to promiscuous sexual intercourse. The plaintiff further alleged that the word “ bitch,” when spoken of a woman in said city of Superior, is coim monly understood to mean a whore or prostitute, and commonly implies that the person of whom it is spoken has been and is such and is guilty of promiscuous sexual intercourse and unchaste conduct, of which the defendant had knowledge, and meant so to charge, and that the words were so-understood by the hearers.</p>

<p>Appeal from a judgment of the circuit court for Chippewa county: A. J. YiNje, Circuit Judge.</p>

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

<p>Appeal from a judgment of the oirenit court'for Douglas-county: A. J. ViNje, Circuit Judge.</p>

<p> Railroads: Fences: Depot grounds: Killing of animals on traeJc: Court and jury. </p> <p>1. Where the grounds left unfenced and treated by a railway company as depot grounds are unusually extensive and the loeus in quo is outside of and beyond the switches and side tracks, and is not used as a place of access by the public or patrons, either for freight or passengers, and only for the passing or standing of trains, the question whether it is necessary for and used as depot grounds is properly for the jury.</p> <p>2. Under sec. 1810, Stats. 1898, a railway company is absolutely liable for the killing of animals if they came upon its road at a point (not in fact depot grounds) where it was unfenced, even though it omitted the fence in good faith because it considered the locality depot grounds. v</p>

<p> Appeal: Jurisdiction: Neturn, </p> <p>The supreme court acquires no jurisdiction of an appeal from an order if the return thereon fails in material particulars to comply with sec. 8050, Stats. 1898; as where the original of an essential paper is not included in the return and it does not appear that the court directed a copy to be substituted, and it does not appear, either from the clerk’s certificate or from recitals in the order in connection with the papers transmitted, that the return contains the papers used by each party on the application for the order.</p>

<p>Appeal from an order of tbe circuit court for Green county: JohN E. BeNNEtt, Circuit Judge.</p> <p>This is an appeal from an order overruling a demurrer to tbe complaint. Tbe action is brought by ten persons, who are alleged to be members of St. Yictor’s Oburcb Congregation, of Monroe, Wisconsin, an unincorporated religious society, against tbe defendant, who is also alleged to be a member of such congregation. Tbe complaint alleges that in January, 1892, tbe plaintiffs and tbe defendant and three other persons were selected as a committee to receive and collect subscriptions for tbe building of a new church for said congregation, and to manage tbe building thereof, and that it was determined by tbe parties to this action and tbe members of said society that it would be necessary to raise about $10,000 therefor; that at a meeting of said committee a resolution was passed to the effect that said committee subscribe to tbe list to build a church to cost not less than $10,000, and that if said $10,000 should not be collected the .subscriptions should be null and void; that the defendant was active in encouraging and inducing others to subscribe, and"'himself subscribed the sum of $1,000, to be paid one half July 1, 1892, and the other half January 1st following; that in signing said subscription he signed as follows: “ Nalty Family, $1,000;” that said subscription was made by the defendant, and he thereby undertook to raise for that purpose said sum of $1,000, but did not disclose of whom he intended to collect any part of the sum, but stated and caused it to be understood that be, by himself or by the help of the other members of his family, would raise that amount and pay the same to the committee to be used in the construction of said church, and that by said subscription he' definitely agreed, in consideration of the subscriptions of others then made and to be made, to pay said amount to said committee to be used in the erection of said church; that said subscription was thereafter widely circulated; and that defendant’s subscription, together with others, was used as an inducement to lead many others to subscribe, some of whom signed the subscription list, and others executed promissory notes; that a church was actually erected, costing about $11,000 or more, and that nearly all of the said subscribers paid their subscriptions, relying on the defendant’s subscription; that said members of said committee and the other subscribers incurred obligations and liabilities to a large amount for material and labor for said church, and became liable to a large amount therefor, and that all the plaintiffs were subscribers for the same purpose, and paid their subscriptions, expecting said defendant to pay his, and relying thereon;, that there was a large number of persons who signed said subscription list, or gave notes for the same purpose, and paid their subscriptions, to wit, seventy-five or more, and that there was also a large number of persons who were' members of the society, to wit, 300 or more; that the sum pf $10,000 and more was duly collected for the purpose aforesaid, and a church better than the one proposed was. duly built by the subscribers to said fund, and that said defendant thereby became liable to pay the amount subscribed by him for the benefit of said society and its members and said other subscribers; that the number of persons interested in the collection and distribution of said subscription is very large; that the number of said subscribers is seventy-five or more, and the number of members of said religious society is 300 or more, and that the said question is one of common interest to many persons, and that it is impracticable and inconvenient to bring them all before tbe court, and that this action is brought by the plaintiffs for their own benefit and the benefit of the said other persons similarly interested; that the defendant has wholly failed to pay or cause to be paid his subscription, or any part thereof; and judgment for the amount of said subscription, with interest, is demanded.</p>

<p>Appeal from a judgment of the circuit court for Rock county: JohN R. BeNNBtt, Circuit Judge.</p> <p>This is an action for contribution, brought by eight sureties against three alleged co-sureties for money paid on bonds given by one W. T. Rambusch as executor of the will of one John Nelson, deceased. The complaint alleges the appointment of Rambusch as executor, and the giving of an executor’s bond by him January 5, 1892, which was signed by five of the plaintiffs and the three defendants as sureties. The complaint further alleges the issuance of letters testamentary to Rambusch; that he entered upon his duties as executor,,and received property of the estate to the amount of nearly $28,000; and that lie afterwards embezzled the •sum of $13,730.15 thereof, which embezzlement is alleged to have been completed upon the 8th day of August, 1893. The complaint further alleges that Rambusch absconded in October, 1896, and committed suicide; that prior to said absconding, and on the 8th day of August, 1893, Rambusch, as principal, delivered and filed with the county court of Dodge county an executor’s bond, as additional and cumulative to the first bond, which was signed by five of the plaintiffs in this action, who were also signers of the first bond, and by the three remaining plaintiffs, who were not sureties upon the first bond, and was not signed by the hhree defendants in this action. This second bond is set forth in' the complaint, and is in the usual form of an executor’s bond, save that in the recitals preceding the obligatory words the giving of the previous bond is recited and the following clause is added: “And whereas J. E. Malone, one «of the sureties on said bond, has asked to be released from the same, and Bernard Mauser, another of said sureties, has «eased to be a resident of said county of Dodge: Now, therefore, if said W. T. Rambusch, executor as aforesaid, •shall administer according to law and the will of the testator all the goods, chattel rights, credits, and estate of said deceased which have and shall at any time come to his possession,” etc. Both bonds are alleged to have been in the penal sum of $40,000.</p> <p>The complaint further alleges the settlement in the county court, upon due notice both to plaintiffs and to defendants, ■of the final account of said executor, and the determination of his embezzlement at $13,730.15, and the payment by the plaintiffs of the sum of $11,000 to the proper parties in settlement of such embezzlement, and also that the defendants have refused to pay any part of such amount, notwithstanding that the same has been demanded; and judgment for •$3,000, with interest, is demanded.</p> <p>To this complaint answers were interposed by the three defendants, setting forth a considerable number of facts., which are not necessary to be stated here, but which are claimed by the defendants to show that the second bond was in legal effect not a cumulative bond., but a substituted bond, and that, as between the plaintiffs and the defendants, the plaintiffs have no right to call upon the defendants for contribution.</p> <p>Upon the trial an objection to the introduction of any evidence under the complaint, for the reason that no cause of action was stated therein, was sustained, and judgment was entered dismissing the complaint, from which judgment the plaintiffs appeal.</p>

<p> Chattel mortgages: Fraud: Jury trial: Waiver. </p> <p>1. In garnishment proceedings to reach a stock of goods which had been taken possession of under a chattel mortgage, it appeared, among other things, that the mortgagor and mortgagees were broth- • ers; that the mortgagor remained in possession of the stock and conducted the business as before the mortgage was given, using the proceeds as he pleased; that the mortgagees were frequently about the store and knew the manner in which the business was conducted; and that only small payments were made by the mortgagor. Held, that these facts showed an implied agreement that the mortgagor might so act, which rendered the mortgage fraudulent and void as to other creditors of the mortgagor-.</p> <p>2. The right to a jury trial of an action is waived by participating, without objection, in its trial as an equitable action.</p>

<p>Appeal from a judgment of the county court of Dodge county; J. A. BaeNet, Judge.</p> <p>Action to recover a statutory penalty for failure to discharge a mortgage made by plaintiff August 17, 1894, to W. T. Rambusch, to secure the payment of $1,000 with six per cent, interest thereon payable semi-annually, the due date of the note being October 1, 1897, with a privilege of paying $500 of the principal October 1, 1896. Both principal and interest were payable at the Citizens’ Bank of Juneau, Wisconsin. The mortgage was assigned to the defendant by the mortgagee through the First National Bank of Beaver Dam, Wisconsin, on the 17th day of March, 1896. The mortgage and assignment were duly recorded. The facts as detailed were sufficiently alleged in the complaint, together with appropriate allegations to constitute a cause ' of action to recover the statutory penalty for wrongfully refusing to discharge a mortgage.</p> <p>The issue formed by the pleadings was as to whether the mortgage debt had been fully paid. The evidence showed the following facts: Rambusch was president of the bank where the note was made payable. Prior to the purchase of the note by defendant, plaintiff made one payment of interest to Rambusch. The case turned on whether Ram-busch or the bank was authorized to receive payment on the note from plaintiff at the time the latter deposited the $500 at such bank. When the note' became due, the plaintiff, claiming credit for the $500, tendered to defendant enough more to discharge the balance of the debt, the money being at the time placed on a table during an interview between the parties, and defendant notified that it was his property but that- if taken by him plaintiff would expect a satisfaction of the mortgage. Defendant took the money, declining to give such satisfaction, and plaintiff did not protest or demand a return of such money. He contented himself by insisting that the $531 was the full amount due defendant and’ that a satisfaction was due him.</p> <p>The court submitted the case to the jury for a special verdict, which resulted in findings as follows: Defendant, did not notify plaintiff that he held the note and mortgage.' All the conditions of the mortgage were complied with prior to the commencement of the action. W. T. Rambusch was agent of the defendant to collect the principal and-interest on the note. When plaintiff made the payment to. Rambusch or Hemmy, he required them to produce tho note. Plaintiff is entitled to recover. There was a motion-to set aside the verdict as contrary to the evidence, which was denied and the ruling duly excepted to. Judgment was-rendered in plaintiff’s favor, and defendant appealed.</p>

II. Jonuson, Circuit Judge. Equitable action by the owner of a life estate in certain valuable real property in the city of Milwaukee against her minor children, the owners of the estate in remainder subject to some contingencies, to obtain judicial authority to sell a part of such property, including all estates therein, vested or contingent, upon the ground of a necessity so to do in order to prevent a threatened destruction of such es-tales by tas and other liens thereon.

<p>Eeboe to review a judgment of the circuit court for Wau-nesha county: JaMes J. Dice, Circuit Judge.</p> <p>On November 19, 1891, tbe defendant resided with his wife and two children of their own and two of her children by former marriage, in indigent and destitute circumstances, at Oconomowoc. On that evening the defendant went to bed in one room with his two children, aged respectively six and four. Later the wife, together with a boarder, between whom and herself illicit relations, with the knowledge and consent of the defendant, are claimed to have existed, went to bed in another room. In the morning the defendant was found in bed with his throat cut, almost but not quite fatally, and the two children dead in bed, each with a blow upon the head from a hammer, fracturing their skulls, and each with throat cut fatally. His wife immediately called the boarder, who notified certain neighbors, who came with a physician. Defendant was conscious on their arrival, and, in answer to inquiries, stated, substantially, that he did not know whether he killed the children or not; that, if he did, he did not know it. Defendant’s bed and bedroom were smeared with blood, as also his clothes and parts of his person, including the soles of his feet. A bloody razor was found upon the commode near the head of the bed, and a bloody hammer on the floor near the bed. Rigor mortis was complete in the bodies of both the children. The wife and boarder were arrested, and the defendant treated by the physician, and a nurse provided for him.. There were no signs of blood elsewhere in the house, or on the persons or clothing of the wife or the boarder.</p> <p>After a few days the defendant modified his statement by saying that, after reading the newspaper accounts of how things were found in the house, it seemed as if he must have killed the children; and ten days later, of his own volition, he requested his nurse to procure the attendance of the district attorney, saying that he wanted to tell the whole story, and thereupon did relate to the nurse his statement (which was afterwards repeated to many other persons without substantial variation), to the effect that on retiring that night he had determined to end his life, owing to his indigent condition and the illicit relations between his wife and the boarder; that he waited only until he heard them retire to the other bedroom, and then proceeded to get his razor to carry his design into effect; that, his glance falling upon the children, the thought came to him that he ought not to leave them to grow up under such circumstances, and that it was better to take them with him; that he remembered having struck his foot against a hammer as he was going to bed, and determined to use that to stun the children before cutting their throats, in order that they should not suffer; that accordingly he secured the hammer and carried out that design, first striking them each on the head, and then cutting-their throats (giving details as to shifting the body of one of them so that the blood should not continue to spurt upon the wall); that then, kneeling upon the bed, he drew the razor across his own throat, and fell off the bed, which was the last memory he had until towards morning, when he became conscious and struggled back onto the bed and lay down again, where he was found. He detailed having dropped the razor, finding it in the morning;' first putting it under his pillow, and afterward laying it on the commode, where it was found. He gave as a reason for desiring to make this statement that his previous statements had not, as he expected, been sufficient to relieve his wife from the charge, and that he did not want others to suffer for his act. Substantially this statement was repeated to the district attorney, Mr. Parkinson, to the deputy sheriff, and to others. The proof discloses that it was made before he was arrested, without any solicitation, threats, or suggestion of advantage from any of them, and entirely voluntarily.</p> <p>. Being arrested and brought to trial, he interposed a plea. of insanity, which issue being found against him, the trial proceeded to a verdict of guilty of murder in the first degree, followed by sentence to imprisonment for life, to review which judgment writ of error was sued out from this court.</p> <p>Upon the trial of the issue of insanity.much evidence was offered, which, however, went little further than to disclose a somewhat weak-minded man, without malice or ill temper, addicted to drinking at various intervals in his life, and through many years addicted to self-abuse, but with the ordinary powers of understanding and reasoning as to his acts, and of guiding his conduct by his will. A situation approaching pauperism was shown, and declarations to the effect that he had surrendered his wife to illicit intercourse with the boarder as a means of sustaining his family, somewhat against her will. Other material facts are stated in the opinion.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: I). IT. JohNSON, Circuit Judge.</p> <p>Prior to 1871 one James Jenkins was tbe bolder of the legal title to a tract of about 17,000 acres of timber lands. He held in bis own right a three-fourths interest, and the legal title of the remainder as a security for the payment of a loan of $10,000 to Elijah Swift, who was the real owner thereof. On October 14, 1871, Jenkins conveyed to Daniel Bradley and A. P. lovejoy a three-fourths- interest in said' lands, and took back an agreement, reciting the interest of Swift, in which, they agreed to convey to Swift a one-third interest in the title they received upon compliance by him with all the conditions of said agreement with Jenkins.' Under the sale from Jenkins, Bradley took twelve-twentieths and Lovejoy three-twentieths of the entire - tract. On July 13, 1'8J2, Bradley conveyed to Asa P. .and David Kelly an. undivided one-third of his twelve-twentieths interest in said land, and also one half of his interest in the undivided quarter interest mentioned as belonging to Swift. On. September 15, 18J5, Bradley quitclaimed his. remaining interest in-said lands to his son Edward Bradley, in trust, in equal shares for his three sons, Edward, William BL, and James. Bradley. The title then stood as follows:</p> <p>Jenkins. 5-20</p> <p>Lovejoy. 3-20</p> <p>' A. P. Kelly. 3-20</p> <p>D. Kelly. :. 3-20.</p> <p>E. Bradley. 2-20-</p> <p>W. H. Bradley. 2-20</p> <p>James Bradley. 2-20-</p> <p>20-20</p> <p>The title to the Swift interest was held as follows:</p> <p>Lovejoy. 3-60-</p> <p>D. Kelly. 3-60</p> <p>A. P. Kelly. 3-60-</p> <p>E. Bradley. 2-60</p> <p>W. H. Bradley ..... 2-60</p> <p>James Bradley.„. 2-60</p> <p>15-60</p> <p>Thereafter the holders of this-title formed a copartnership as Bradley Bros. & Go.,' and jointly'conducted logging operations on said lands; Some time prior to and during the year-1882, the parties entered into negotiations.among themselves, for the formation of a corporation to take said lands and other lands owned by them and conduct the logging and lumbering business. These negotiations finally culminated in the organization of a corporation called the State Lumber Company in October, 1882. The capital stock was $500,000, with 5,000 shares of $100 each. At that time the Swift interest had not been redeemed, and neither interest nor taxes had been paid by him. The matter was talked over among the parties, and the conclusion was reached that Swift had abandoned and forfeited his interest in the land, or it was of very little value; so it was agreed that each one should convey his interest to the corporation by quitclaim deed, and receive therefor a proportionate share of its capital stock. The parties owned other lands, which were also conveyed to the corporation. The value of the so-called “Jenkins lands ” — being the tract first mentioned — was agreed upon as being $222,527.55, and stock purporting to be fully paid was issued therefor, Jenkins getting five twentieths, and the other parties in proportion to their interests as above stated. The stock amounting to $55,631.89, representing the Swift interest, was issued to Lovejoy, the Bradleys, and the Kellys in the proportions stated. The parties named and one Benjamin Sweet constituted all the subscribers to the capital stock. The corporation was duly organized, the parties named being the directors, and proceeded to carry on a general logging and lumbering business. Jenkins died March 22, 1885, leaving, a will, in which the plaintiffs in this action were named executors and executrix.</p> <p>On May 5, 1886, Swift commenced an action against the State Lumber Company, Lovejoy, and Edward Bradley to redeem his interest in said lands, and for an accounting as to timber cut, and to secure a reconveyance; and in the course of this litigation this court determined that he was entitled to the relief sought. 71 Wis. 476 (April 17, 1888). After this suit was decided, the Bradleys, Kellys, and Lovo-joy entered into negotiations with Swift for a settlement. The result of such negotiations was reported to a meeting of the board of directors of the State Lumber Company, held June 20, 1889. At that meeting all of the directors were present except Edward Bradley, J. H. Jenkins representing the Jenkins interest. After a consideration of the matter, a resolution was adopted authorizing a purchase of the Swift interest by the company for $172,000, all the directors present voting therefor. The settlement was finally made, and Swift’s interest was conveyed to the company. In February, 1892, the company paid Swift the further sum of $25,257.82 for timber cut on the Jenkins lands prior to that date, and •also paid $6,956.13 as expenses of the litigation.</p> <p>Some time in November, 1891, the plaintiffs and Sweet •served a notice upon the officers of that company, calling attention to the fact that the funds of the company had been used in the purchase of the Swift claim and for expenses of the litigation, and claiming that the money so used was a •charge against the parties who received the stock issued by the company in consideration for the alleged transfer of the lands upon which Swift had a claim. They also claimed that there was a failure of consideration for which this stock was issued, and that the holders of it ought to make good to •the company the amount so expended. They demanded, among other things, that the officers of the company should, institute proceedings to cancel such stock and recover all dividends paid thereon, or, if they were entitled to hold the stock, then to compel the holders to make good to the company the amounts so paid out in satisfaction of the Swift claim. The company neglected to take any action in the premises, whereupon this suit was instituted, the plaintiffs suing, in their capacity as stockholders, to enforce the rights of the company for the protection of their rights.</p> <p>The complaint set out the facts substantially as before stated, and alleged, in substance, that at the time the corporation was formed it was expressly'agreed between James Jenkins and the Bradleys, Kellys, and Lovejoy that, in consideration of the issue to the latter of full-paid stock for the-Swift interest, they would pay and discharge all claims Swift might have, and save the corporation and the said Jenkins, and the stock issued to him harmless therefrom, and would indemnify the corporation and said Jenkins and the subsequent owners of the stock issued to him against any failure of title as to said Swift interest; that pursuant to this agreement the corporation was organized and each of said parties-conveyed to it their interests in said lands by quitclaim deeds, Jenkins assuming to convey a one-fourth interest, and the* other parties a three-fourths interest therein; that Jenkins-parted with his interest upon the express understanding that the other parties should guarantee the title to the Swift, interest, and save him and the corporation harmless from any loss or outlay on account of the same; that the stock so issued for the Swift interest, being about 589 shares, was distributed among the Bradleys, Kellys, and Zoveyoy in blocks proportionate to their several holdings in the land; that Jenkins died, leaving a will, in which he bequeathed one fifth of his stock to his son James, and the remainder in trust to his executors for the benefit of his daughters. The complaint then sets out the Swift suit, and the proceedings-therein, the settlement and purchase by the corporation of the Swift interest, which is alleged to have been a misappropriation of the funds of the corporation and a wrong to-the stockholders; that no part has been repaid to the corporation, nor have they indemnified the plaintiffs, except that. W. H. and James Bradley have repaid to the plaintiffs and Benjamin Sweet their several proportions of the money so-taken, and except that the Kellys have also settled with Sweet, which settlements were made without prejudice to this litigation. The demand for relief was that the defendants account for all dividends received on the stock, that an account be taken of the moneys paid out by the corporation on account of the Swift interest, and the amounts due from the defendants to plaintiffs be ascertained, and that they be adjudged to pay said amount, etc.</p> <p>The answer alleges, among other things, that at the time of the organization of the corporation, the exact status of the Swift interest was known to all the incorporators and subscribers to stock; that they all supposed that Swift’s interest, he being greatly in default, was of little or no value, and it was agreed to disregard any claim Swift might have. It was expressly denied that there was any agreement to indemnify Jenkins against the same, or that they would pay or discharge the Swift claim. It was alleged that J. S. JenJdns was present at the meeting of the board of directors when it was decided to buy in the Swift interest, and voted to make such purchase. The answer also sets up the • statute of limitations.</p> <p>The action was entitled as an action against the State Lumber Company, the three Bradleys, the Kellys,' Lov&joy, J. II. JenJdns, and Benjamin Sweet. Service was never had upon the defendant Asa P. Kelly, he having died after the summons was issued, and before service. After the summons was issued, and before the complaint was served, "W. H. and James Bradley settled with the plaintiffs, as hereinbefore stated, and they seem to have dropped out of the litigation. During the pendency of the suit the defendants settled with Benjamin Sweet, and he also seems to have passed out of the case.</p> <p>The action was tried before the court, and, after long delay, findings were filed of the following tenor, in addition to the facts above stated: That the total number of shares in the defendant company subscribed for and issued ■ was 4,571, of which Jenkins had 860. That prior to the. date of the incorporation of the State Lumber Company the Bradleys, Kellys, and Lovejoy agreed with Jenkins “to take care of and protect the title to the Swift one-fourth interest ” so conveyed by them to the company, “ and in all respects to indemnify and Fold said James Jenkins Farm-less from any defect in tFe title to said Swift one-fourth interest.” TFat Sweet Fad no interest in the title to tFe so-called “Jenkins lands.” TFat the negotiations for the purchase of the Swift interest were conducted by one A. J. Hayward at the instigation- of the Bradleys, Kellys, and Lovejoy, and that a deed "came through him to the company. TFat the amount paid by the company for the purchase of the Swift interest was $172,000; for timber cut, $25,257.32; and for costs and expenses of litigation, $6,956.13; and that the total amount paid out on account thereof for all purposes was $215,613.63. That the representatives of the Jenkins estate knew nothing of the negotiations as to the settlement with Swift until the resolution to settle the matter was presented at the meeting of the board of directors, and •that J, Howm'd Jenkins, one of the executors, who was present, voted for said proposition upon the assurance of W. H. Bradley that the Jenkins estate would not be required to indorse any of the notes of the company given on said settlement, and that the same would be taken care of by the Bradleys, Kellys, and Lovejoy, and that the Jenkins estate would not be in any manner prejudiced thereby. That the Swift litigation was carried on by the Bradleys, Kellys, and Zo'oej.oy, and neither the Jenkins estate nor Swift was ever called upon to contribute to the expenses of said litigation. That prior to 1892 it was never claimed by Edward Bradley, Lovejoy, or the Kellys that the Jenkins estate was in any, manner to be prejudiced by the Swift claim, and frequent assurances were given, at the meetings of the board of -directors and the stockholders that whatever obligation arose therefrom should be upon the Bradleys, Kellys, and Lovejoy, and that these assurances were given by W. H. Bradley, the president and general manager of the company, in presence of the other members and stockholders. In the eighteenth finding it is stated, in substance, that at the time of the commencement of the Swift suit the executors were informed by W. H. Bradlejr and other members of the company that the Jenkins estate should be in no manner prejudiced by said litigation, and that in the pleadings in that action it was expressly admitted that the Bradleys, Kellys, and Lovejoy had in their hands $40,004.29 as due and owing from them as the unpaid balance under the Swift contract.</p> <p>It was further found that these parties claimed in said litigation that they had attempted to convey said land to the company under a power of sale in the agreement with Swift, and that, if a good title was not conveyed thereby, Swift was entitled, as against them, to the amount received by them by reason of the attempted conveyance to the company; that at the annual meeting of stockholders in September, 1889, there had been paid out of the funds of the company on the Swift claim $15,000; that the Jenkins holding of stock was about one fifth; that W. H. Bradley then expressed the opinion that a proportionate amount should be paid to the Jenkins estate; that the other members present expressed no opinion in relation thereto, but on January 14,1890, the sum of $3,000 was paid to the Jenkins estate; that said matters of difference came up at the annual meeting in September, 1890, and the principal question in dispute was whether or not the Bradleys, Kellys, and Love-joy should pay back to the company on the basis of the value of the lands as originally turned over to the company; that at that time an additional sum of $50,000 had been paid on the Swift notes, and it was thereupon arranged that the Jenkins estate should receive its proportionate share, and accordingly $5,000 was paid in September, 1890, and $5,000 in March, 1891; that neither Edward Bradley, Dmid Kelly, nor Lovejoy has ever reimbursed the company on account of the failure of title to the Swift interest; that, after the commencement of this action, "W. H. and James Bradley paid the Jenkins estate $10,300 in settlement of any claim the State Lumber Company or the Jenkins estate might have against them by reason of the failure of title so far as the Jenkins estate is concerned; that the paying of said Swift claim out of the moneys of the corporation, and the refusal of said defendants to reimburse after due demand, was a fraud upon the corporation and upon said Jenkins estate.</p> <p>As conclusions of law the court found: (1) That plaintiffs were entitled to the relief demanded in the complaint. (2) That at the time of the commenpement of this action a cause of action had accrued to the plaintiffs as against David Kelly, Love/joy, and Edwcwd Bradley, and, the company having failed to prosecute, the plaintiffs were entitled to bring this suit. (3) That the right of action, so far as the Jenkins estate was concerned, was not barred by the statute of limitations. (4) That the defendant company did not have, and never had, a cause of action against the Bradleys, Kellys, and Lovejoy until they assumed a hostile position towards the minority stockholders, about 1892. (5) That it was a fraud as to the Jenkins estate to pay the Swift claim without indemnity to said estate. (6) That the Bradleys, Kellys, and Loveyoy never paid for their stock in said company; that the company never agreed to take their interest in the Swift interest “purely as a mortgage interest;” that by reason thereof their title to the stock issued to them for the Swift interest failed; that when they and the company elected and decided for themselves that the same had so failed they had a right to return the stock to the company and account for all benefits received; that they voluntarily elected to hold said stock and pay the Swift claim out of the property of the corporation; and that, having so elected, they are, as against the Jenkins estate, chargeable with their proportionate share.</p> <p>Exceptions were duly filed to nearly all of the findings. A judgment was subsequently entered requiring the defendants Edward Bradley, David Kelly, and Allen P. Lovejoy to pay to the defendant State Lumber Company the sum of $170,012.88, as follows: Edward Bradley, $42,507.72; Devoid Kelly, $63,752.58; A. P. Lovejoy, $63,752.58. The judgment ■was to be. docketed against the defendants as stated, and execution was to be issued to collect the same. The said defendants were also adjudged to pay plaintiffs’ costs. From this judgment the defendants have appealed.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: A. J. Yinje, Circuit Judge.</p> <p>Suit by plaintiff, as receiver of the Citizens’ National Bank of {Madison, South Dakota, upon a negotiable promissory note for $112, and seven per cent, interest, from the defendant to M. W. Daly, dated December 6,1887, and due July 1, 1891, which, when offered in evidence, bore, first, the indorsement, “M. W. Daly,” in the handwriting of Trow, the cashier of the bank, which had been canceled or scratched out; second, the indorsement, “ Without recourse to JM. W. Daly,” in Daly’s own handwriting. It was testified that the note came to the bank January 14, 1888, haying been received by Trow, the cashier, while in California, in the course of an adjustment or division of proceeds of certain speculative investments in which Daly, who was a stockholder, Trow, who was cashier, Smith, who was president, of the plaintiff bank, and others, were interested; it apparently having been accepted by Trow, in the course of that adjustment, for the bank. When first entered on the books of the bank, credit therefor was given to Trow’s general account. At maturity the .note was protested, and thereafter suit was commenced thereon, by direction from the bank, against the defendant, in the name of Daly as plaintiff. In that suit Br&rmcm interposed a defense on the ground of fraud and failure of consideration, and a counterclaim seeking to cancel the note and recover back other consideration paid by him, for fraud as to the title of real estate, conveyance of which was the consideration for this note. After the interposition of this answer, when the case was reached for trial in November, 1892, Daly refused to proceed upon his cause of action on the ground that he did not own the note and the suit was not properly in his name; but under the order of the court the trial did proceed upon the counterclaim, resulting, after an appeal to this court, in a judgment dismissing the same. The suit upon the note in the name of Daly as plaintiff appears never to have been disposed of.</p> <p>In the case at bar the defense interposed was failure of consideration, and that plaintiff was not an innocent holder for value before maturity of the note sued on. A plea in abatement for that another suit was-pending under the direction of the present plaintiff was interposed, and after trial thereon a verdict denying the same was directed by the court, the assignment of error upon which, in appellant’s original brief, seems to be abandoned. Further facts material to the consideration of the case are stated in the opinion. At the close of the evidence the court directed a verdict for the plaintiff, from the judgment on which this appeal is taken.</p>

<p>Appeal from a judgment of tbe circuit court for Bock county: JohN E. Benkett, Circuit Judge.</p> <p>Action to recover damages resulting to plaintiff, as husband, from personal injuries suffered by his wife on October 18,1893, from an alleged, defective sidewalk upon, one of the-principal streets of the defendant; the defect alleged consisting in a generally defective and rotten condition of planks and stringers, whereby the planks were loose, so that as plaintiff’s wife was walking upon said sidewalk one of said planks was tipped up by another person stepping on the end thereof, her foot caught thereby, and she thrown to the ground, suffering a severe wrench of the ankle and’ foot, whereby ligaments were torn loose, resulting in a permanently disabled foot, twisted from its natural position, and incapable of use up to the time of the trial, November 28, 1898, and substantially certain to so continue through life. At the commencement of the trial, defendant was permitted to amend its answer so as to admit notice to the officers of the city of the actual condition of the walk. Plaintiff recovered, and defendant appeals, assigning very numerous errors, in the discussion of which such further facts as are material, thereto will be mentioned in the opinion. Plaintiff’s wife has already recovered her damages for the same injury, the judgment therefor having been affirmed by this court. 100 Wis. 157.</p>

<p>Appeal from, a judgment of the county court of Waukesha county: M. S. Geiswold, Judge.</p>

Dioe, Circuit Judge. The appeal is from a judgment of the circuit court reversing a judgment of the county court of Waukesha county, respecting the validity of the will of Warren H. Stickney, and decreeing such will void on the ground of undue influence. Ur.

Dick, Circuit Judge. This action is to recover upon a promissory note for $190, given by the defendant to one J. D. Fleming or order, due in six months from May 3, 1898, payable at the express office in. Eichfielcl, Wisconsin, with six per cent, interest after due, duly indorsed, and field by tfie plaintiff before due.

<p>Ejectment: Second trial: Res adjudicata: Boundaries: Ancient fences: Adverse possession: Evidence: Transaction with person since deceased.</p> <p>1, On appeal from the judgment rendered on the second trial of an tion of ejectment, the decision of the supreme court on appeal from the first judgment is res adjudicata only so far as Rally the same case is presented.</p> <p>2. The weight accorded to ancient fences as evidence of the true line between tracts of land is not so great where such line was not at any time marked by original monuments.</p> <p>3. Notorious, uninterrupted, and unexplained possession of land up to a division fence for twenty, years will thereafter be presumed to have been adverse to all the world, not excepting the neighbor across the fence. So far as Fuller v. Worth, 91 Wis. 406, may be construed to the contrary it is disapproved.</p> <p>4, Sec. 4069, Stats. 1898, prohibiting the testimony of a party “in respect to any transaction or communication by him personally with a deceased person,” does not forbid testimony of transactions or communications between the deceased and third persons, though in the witness’s presence, if he did not participate therein and they were not affected by his presence.</p>

<p> Deeds: Covenants: Quiet enjoyment: Failure of title. </p> <p>A. grantee of land who went into possession under a deed containing only a covenant for quiet possession and has remained in possession ever since cannot defend against a mortgage given by him to secure a part of the purchase price, or obtain a deduction from the amount due thereon, on the ground that the grantor did not have title to a part of the premises.</p>

<p>Wills: Failure to provide for widow: Election: Retroactive statute: . Vested rights.</p> <p>1. Prior to the enactment of ch. 133, Laws of 1895 (providing that the widow shall be entitled to the share of her husband’s estate as in cases of intestacy, in cases where no provision is made for her by will), the widow’s right to share in her husband’s personal estate in casé no provision was made for her in his will was limited to the allowances for maintenance, etc., provided in subd. 1, 3, sec. 3935, S. & B. Ann. Stats.</p> <p>2. Although said ch. 123, Laws of 1895, is retrospective in its language, it cannot affect the distribution of the estate of a person who died before its enactment, since the rights of legatees become vested when^the will is probated and relate back to the time of the testator’s, death.</p>

<p>Appeal from a judgment of the county court of Dodge eounty: J. A. Barney, Judge.</p> <p>Defendant appealed to the county court of Dodge county from a judgment duly rendered against him in justice’s court. The notice of appeal purported to have been signed by the appellant by his mark, as was also the affidavit required by the statute. There was no subscribing witness to the mark and no proof that it was made by appellant, except the fact that the appeal affidavit was sworn to before a notary public, who certified to that fact and that the affiant subscribed the same in the usual form. When the case on appeal was reached for trial, respondent moved to dismiss it for want of jurisdiction, in that the appellant’s marks to his notice of appeal and affidavit were not witnessed. The motion was granted solely upon the ground stated. An order or judgment was rendered accordingly, which shows upon its face that it was grounded on the fact that appellant’s marks to the appeal papers were not witnessed.</p>

<p> Waters: Meander line of lalee: Injunction against flooding lands: Pleading. </p> <p>1. By ch. 66, Laws of 1899, owners of land adjoining a lake were authorized to restore its waters to the natural flow and line thereof, up to the meander line as indicated by the original government survey, and for that purpose to fill any ditch or outlet which had been dug or deepened since said survey. In an action to restrain the erection of a dam across the outlet of said lake, the complaint alleged ownership, use, and occupation by the plaintiffs and their grantors, for more than forty years, of lands abutting on the lake and the outlet, which would be overflowed and their value diminished by the construction of the dam, and their water supply along the outlet cut ofl, and that the construction of the dam was wrongful and done with the design to injure plaintiffs; but there was nothing alleged from which it might be inferred that the defendants were owners of land adjoining the lake, or that the outlet had ever been deepened, or that they were acting under said ch. 66. Held, that the complaint stated a cause of action entirely outside of said ch. 66, and that the constitutionality of that act was therefore not before the court.</p> <p>2. Under the allegations of ownership, use, and occupation, for more than forty years, of lands abutting on the lake, it cannot be assumed that such lands are within the meander line.</p>

<p>Appeal from orders of the circuit court for Waukesha county: James J. Dick, Circuit Judge.</p> <p>The relator sought, in the circuit court for Waukesha county, to review the proceedings of the Common Council of the City of Oconomowoc to make contract for sprinkling' of a portion of Summit avenue at the expense of benefited abutting owners. The charter provides that, “ Whenever a petition is presented to the common council. of said city,, signed by at least a majority of all the taxpayers within the-boundaries set forth in said petition . . . whose aggregate amount of taxable property shall exceed one half of all such property within the bounds designated, as appears from the last assessment roll of said city, asking that said street within the bounds so set forth be sprinkled,with water,” etc., the council shall have power to contract for sprinkling, and to assess the cost thereof. The defect in the proceedings alleged is that the signers of said petition were neither a majority in number, nor had they a majority in amount of the taxable property within the limits covered by the petition. A writ was issued, commanding the common coun•cil to certify “ all the proceedings, including the petitions for sprinkling, the records of the common council relating thereto, a certified copy of all the taxable property, and the names of the taxpayers within the boundaries of Summit street between Main street and George street as shown by the last assessment roll of the city of Oconomowoe, and a transcript of all the entries and records and all things touching and relating to such petition and the sprinkling of said •Summit street.”</p> <p>The common council returned a certified copy of the petitions and of its records, and further returned, in substance, that upon the receipt of said petitions they and their subject were referred to the standing committee on street lighting •and sprinkling; that said committee examined the assessment roll for 1896, and personally investigated as to who were the taxpayers along either side of said Summit avenue between Main street and George street, and found, and so reported, that a majority in number of said taxpayers had signed said petition, and that against the signers more than one half of the taxable property was assessed; that they kept no minutes of said investigation, the same being a personal •examination on their part, and that none are on file with said proceedings or report, which report was favorable, and •that thereupon, in accordance with the rules of that body, the common, council granted said petitions; that one of the subjects referred to said committee was the question of fact as to who were or were not taxpayers within the limits on ■said street, and it was decided by the committee by .personal examination and investigation, which was embodied in their report. The council further returned that it had caused an investigation to be made of the report of said committee, and of the facts investigated by it, and that they returned to the writ a list of the taxpayers at the time of presenting said petition along either side of said street, together with the amounts assessed against each of them as appears in the ■assessment roll of said city, which is a true statement thereof; ■and also returned the names of said taxpayers who signed the petition, together with the amounts assessed against them (from which it appeared that the signers were a majority both in number and amount). They also certified in their return that the assessment rolls of said city are not a part of the corporate records of said city, within their control, and that they have no means of certifying either the whole or any part thereof to the court.</p> <p>The relator upon affidavits moved that the return be ■amended by adding a large number of people, assessed to a ■considerable amount, to the list of taxpayers upon said street within the limits covered by the petition, and also by adding to such return the assessment roll for the year 1896. This motion came up upon notice, whereupon the respondent made motion to quash the writ, which was argued at the same time. The court rendered and entered an order ■or judgment in terms denying the motion for amendment, granting the motion to quash the writ, and continuing with the following words: “ And it appearing to the court that the doings and proceedings of the said common council in regard to the sprinkling of the said street named in said petition and writ, as appears by the return thereto, are manifestly good and valid in the law, therefore it is determined and, adjudged that the said action and proceeding of the-common council in regard to the sprinkling of Summit avenue in said city be, and is hereby, affirmed.” Afterward the court, apparently in further reduction to writing of the decision reached on August 30th, to wit, on September 21, 1891, made a written order reciting relator’s motion for amendment and denying the same, which order was filed December 11th.</p> <p>The relator appealed by a single notice: first, from the-order dated September 21, and filed December Tl, 1891; second, from “ that part of the order made in this action by the circuit court, and entered of record on the 10th day of December, 189Y, which orders that the motion to quash the-writ of certiorari in this action is granted; ” and, third, from the judgment rendered on the 30th of August. The notice-recites that copies of the orders appealed from are attached thereto. None such appear so attached except the order of September 21st denying the motion to amend, and the judgment of August 30th incorrectly copied.</p>

<p> Evidence: Shortage in weight: Contracts: Mutuality: Definiteness: Parol evidence. </p> <p>1. In an action to recover the price of several hundred loads of crushed stone, the fact that there was a shortage in three loads which were re weighed is insufficient to establish a shortage in any other load.</p> <p>2. A written offer by plaintiff to furnish to defendant crushed stone and curbing at certain prices “as per specifications, delivered on street in the city of W. in such quantities as may be desired,” was accepted without qualification. No specific reference was made in the writings to a contract which defendant had recently made for macadamizing a street in W. Defendant had, also, at the time, two other contracts for macadamizing in other cities, and some of the stone received from plaintiff was shipped elsewhere. It was admitted by defendant that he was not bound to receive from plaintiff all the stone required to complete the work in W., but only such quantities as he might desire. Held, that the contract did not bind plaintiff to furnish all the stone required for that work, but loft the amount to be furnished unfixed and unascertainable, and that parol evidence was inadmissible to enlarge or modify its terms. Marshall and Bardeen, JJ., dissent, being of the opinion that, inasmuch as the literal sense of the language used did not constitute the contract a binding agreement, it became the duty of the court to construe it from the standpoint occupied by the parties when making it, and that, so construed, its plain purpose was that the plaintiff should furnish all the stone that might be needed by defendant from time to time for the work upon said street in W.</p>

<p>Appeal from a judgment of the circuit court for Oconto county: S. D. Hastings, Je., Circuit Judge.</p> <p>This is an action for damages caused by alleged negligent delays in the carriage of two carloads of horses over the defendant’s road, and by neglect to feed and water said horsea while in transit. The facts were not greatly in dispute. It appears that on the 7th of January, 1896, the plaintiff shipped sixteen horses in two freight cars on the defendant’s road at Oconto to Boyd’s log track, in the state oi Michigan, a distance of about 130 miles. This log track is a spur about three miles in length, owned by the Bergland Lumber Company, and used by that company and other lumbering concerns by their permission for getting logs out of the woods. It extends from the Channing branch of the defendant’s road in northern Michigan, and branches off from the defendant’s track at a point in the woods about seven miles north of a station called Sidnaw. The understanding at the time of the shipment was that the cars were to be placed at a point near the end of this private track. The horses were fed and watered at about 1 o’clock in the morning of January 7th, were then loaded upon the cars, and left Oconto at 6 o’clock a. m.; the horses in each car being in charge of an employee of the plaintiff. They were shipped under' a written contract, which provided that there should be no liability for delay unless caused by gross negligence, and also that the owner or party in charge should bear the expense of feeding and watering the same during transportation. The contract also provided that the plaintiff’s employees in charge of the stock should be transported without charge on the same train. There was a logging outfit, besides a considerable amount of hay and other feed, shipped in the cars with the horses.</p> <p>At 5:30 o’clock a. m. the cars reached Oconto Junction, where they remained until 8 o’clock, waiting for the regular train going north on the main line. This train took them to Iron Mountain, Michigan, where they were cut out and left, because that train went through on the main .line to Champion, and made no connection with the train on the Ontonagon branch, where these cars were going. They remained at Iron Mountain from about 1 o’clofek p. m. until about 8 o’clock p. m., when they were put into a train and taken to Channing, which point was reached about 11 o’clock p. m. of the same day. They remained at Channing until 3 o’clock on the morning of the 8th, and were then taken upon the first train upon the Ontonagon branch, and left at Sidnaw at about 1 o’clock a. m. Here they were cut out of the train, and remained upon the side track until about 4:30 o’clock p. m., when a switch engine stationed at Sid-naw took them to Boyd’s log track, and, after taking out the loaded cars from the track, placed the cars in question near the end of the track at about 1 o’clock in the evening.</p> <p>- The horses had no food or water during the entire trip. There were appliances for this purpose at Iron Mountain, but the plaintiff’s employees in charge of the stock testify that they did not need food or water while there. There was also a movable chute for the unloading of horses at Sid-naw, and water could be easily obtained there, but the plaintiff’s employees say that they did not see any platform or chute there, and it appears that the cars were not placed where the horses could be taken out. They did not ask that the cars be placed at any chute or platform, or that they should be fed or watered; and give as a reason for this that, the agent at Sidnaw told them on their arrival that the cars, would be taken to the logging track at 8 or 9 o’clock a. m.,. and that, not being taken at that time, they went to the agent again at about 11 o’clock, and he told them they would betaken right after dinner, and that between 2 and 3 o’clock p. m. the agent finally -told them they would not be taken until after the passenger train went south. The plaintiff' himself arrived at Sidnaw by passenger train at 11 o’clock a. m. of the 8th, while the horses were still there, but he made no, effort to feed or water the horses, nor did he di rectly demand of any of the defendant’s employees that thu horses be placed at a chute at Sidnaw, but he testifies that' he told the agent at about 2:30 o’clock p. m. that the horses-ought to go somewhere where they could be fed and watered, and that, if they did not get to their destination before dark, they could not be unloaded that night. The plaintiff gives as-the reason for not saying anything to the station agent before 2:30 o’clock p. m. that he thought the cars would be taken to their destination at any time, and that he was so informed by the men in charge of the horses. At about 2:30 o’clock p. m. he was told by the agent that the cars wouLd not be taken to their destination till after the passenger train went south, which was about 4:30 o’clock p. m.</p> <p>The reason given by the defendant for leaving the cars at Sidnaw was that Boyd’s log track is a private logging road,, owned by the Bergland Lumber Company, and that the agreement between the said company and the defendant was that no switching was to be done upon said private track in the morning, because cars were then being loaded at various places along the track, and switching would greatly hinder the loading of cars. It appears that the Sidnaw switch engine went upon the track after dinner, and took out as many loads as possible before the main line had to be cleared for the passage of the regular passenger train at 4:30 p. m. Immediately after the passage of that train, the balance of the loaded cars were taken out, and the cars in question were set in upon the traek. After the cars were placed at their destination in the woods, it was dark and snowy and somewhat stormy, and there were no facilities for unloading the horses at that point, so the plaintiff left the horses until the morning of the 0th, when temporary platforms were constructed, and the horses taken out and fed and watered. The horses were seriously injured in health, and rendered unfit for work for a time.</p> <p>Upon these facts the court directed a verdict for the defendant, and the plaintiff appeals.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. HastiNgs, Je., Circuit Judge.</p> <p>Action of ejectment. Defendants, who are husband and wife, occupied tbe disputed premises as a homestead during all the times hereinafter mentioned. They conveyed such premises by deed, absolute on its face, to one Dieterville to secure a loan of $125 and interest thereon, payable in one year, taking back a land contract in the ordinary form, specifying the purchase price as $125, payable in one year with interest. Before the debt became due, defendant Denis Kiyo, his wife consenting, agreed to sell the premises to Peter April for $575. The latter borrowed the money of the plaintiff to pay for the property. Eor the purpose of consummating the agreement mentioned, Denis Kiyo indorsed a satisfaction of the land contract on the record thereof, and Dieterville, at the request of Kiyo and of April, made a deéd of the premises to plaintiff, the latter advancing the purchase money, sufficient of which was paid to Dieterville to satisfy his claim, and the balance to Kiyo, who paid $160 thereof to his wife upon returning home. Mrs. Kiyo was not present when the transaction took place, but consented thereto in advance. Plaintiff based his right to recover possession of the premises on the deed made to him by Dieter-ville, as before stated. Judgment was rendered for the defendants.</p> <p>They contended, inter alia, that conceding that the transaction was intended to secure a debt, yet Dieterville was the holder of the legal title in trust for Kiyo, and he could convey it as Kiyo might direct. Qlendenning v. Johnston, 33 Wis. 347; Smith v. Crosby, 47 Wis. 160; Phelan v. Fitzpatmielc, 84 Wis. 240; Swift v. State-L. Go. 'll Wis. 476; Gruber v. Balter, 9 L. R. A. 302; Mcox-fieldv. P'atehen, 29 Ill. 42; Ocvr-penter v. Ga/rpenter, 70 Ill. 457; Rice v. Rice, 4 Pick. 350; Shubert v. Stanley, 52 Ind. 46; Palis v. OonwaA/ If. F. Ins. Go. 7 Allen, 46. An absolute-conveyance, though made to secure a debt, transfers to the-grantee the legal title, and a reconveyance is necessary. First Fat, Banlt v. Tighe, 49 Neb. 299; Gallagher v. Giddvngs, 33-Neb. 222; Baird v. Kvrtland, 8 Ohio, 21; Hughes v. Dmis, 40 Cal. 117; 1 Jones, Mortgages, § 339; Kemper v. Gampbell, 44 Ohio St. 210; Lorvng v. Melendy, 11 Ohio, 355.</p>

<p>Appeal from a judgment of the circuit court for Mari-nette county: S. D. HastiNgs, Jit., Circuit Judge.</p> <p>The action is brought to recover damages for the death of plaintiff’s infant daughter, Gertrude, by one of defendant’s passenger trains, on November 6,1897, plaintiff suing in his capacity as administrator. The negligence charged is based on two grounds: first, that defendant was negligent in keeping up the fence and a gate at a farm crossing on premises near the house where the plaintiff lived ; second, in negligently running the train by which the child was killed. The sufficiency of tbe complaint is directly challenged, but the view taken of the case renders it unnecessary to determine that question. After the evidence of plaintiff was all in, the defendant made a motion to direct a verdict for defendant, which was granted by-the court on the ground that plaintiff had not made out a case that would entitle him to recover. It is to test the correctness of this ruling that this appeal is taken.</p>

Eeboe to review a judgment of the circuit court for Browa county: S. D. Hastings, Jr., Circuit Judge. To the point that under the circumstances it was a question for the jury whether the sidewalk in question was safe, they cited Hill v. Fond du Lac, 56 Wis. 248; Kagoles v. Orth, 61 Wis. 533; Morrison v. Madison, 96 Wis. 452; McNamara v. Olvnton-ville, 62 Wis. 207; Paulson v. Pelican, 79 Wis. 445; Richards v. Oshkosh, 81 Wis. 226; Perkins v. Fond du Lac, 34 Wis. 435.