Volume 105 — Wisconsin Reports

D. HastiNgs, Je., Circuit Judge. One of the plaintiffs, a traveling man, sent his trunks, containing merchandise and not baggage, to the station of the defendant railway company at about 5 o’clock on the evening of January 27, 1897, intending to check them as baggage the next morning on a train leaving about 6 o’clock. During the night they were destroyed by fire, without fault or negligence of the defendant.

<p>Appeal from an order of the circuit court for Brown county: S. D. HastiNgs, Je., Circuit Judge,</p> <p>Appeal from an order made by the circuit court for Brown county granting a second trial in an action of ejectment, relying on sec. 3092, Stats. 1898. The action, as shown by the complaint, was instituted to recover of defendant 5.83 acres of land specifically described therein by metes and bounds. The verdict was for plaintiff for 212&- rods of land only. A judgment was so rendered and for $146.15 costs. "Within one year from the entry of such judgment plaintiff moved the court for a second trial under the statute, waiving his judgment for costs. Such motion was granted, an order being entered, absolute in form, with an added provision requiring an undertaking in the sum of $250 to the effect that plaintiff would pay all costs and damages which might finally be awarded to the defendant. The motion was based on the entire record in the cause and an affidavit showing that plaintiff, by the judgment, failed on the merits of the case to recover the lands claimed by him, except the 212£ rods described in the judgment.</p>

D. Hastings, Je., Circuit Judge. On October 1, 1896,' the firm of Gissenaas & Graetz gave to the plaintiffs jointly their partnership note for $2,000, and secured it by a chattel mortgage on their stock in trade.

D. Hastings, Jb., Circuit Judge. This was a garnishee action. The principal defendant,, Schmidt, having $150 to his credit in the savings department of the Citizens’ National Bank of Milwaukee, gave his check in due form to P. P. Gcvrlvn, the respondent, for the whole thereof, intending thereby to transfer such credit to him to pay for a horse and some other personal property..

<p> Appeal and error: Sufficiency of evidence: Motion to set aside verdict: Order after judgment: Criminal law and practice: Evidence: Hearsay: Verdict: Ambiguity. </p> <p>1. Assignments of error predicated on the insufficiency of the evidence to support the verdict cannot be considered on writ of error, in the’ absence of a motion to set aside the verdict and grant a new trial on that ground, made before sentence and judgment.'</p> <p>2. An order refusing to set aside a judgment and grant a new trial, made after judgment, is not brought up for review by a writ of' error to the judgment.</p> <p>3. In a prosecution for robbery, testimony of policemen that the prosecuting witness, on the day after the robbery, identified the defendant as the man who committed it, is hearsay and therefore inadmissible; and when the circumstances were such as to justify argument upon the improbability of the prosecuting witness having been able to see his assailant sufficiently to identify him, its admission was prejudicial.</p> <p>4. Where an information charged that the accused had been previously sentenced to state prison “by the circuit court of Douglas county,” proper practice would seem to require a finding to the effect that he had been previously sentenced as charged in the information. [Whether a finding that he had been- previously sentenced “ by a court of this state” rendered ,the verdict ambiguous, not determined.]</p>

<p>Appeal from a judgment of the circuit court for Richland county: Geo. Olementsow, Circuit Judge.</p> <p>James H. Willey, deceased, left a will disposing of his property in the following language:</p> <p>“First: It is my desire that all of my debts and funeral expenses he paid, out of my real estate not given to my wife.</p> <p>“ Second: I give and bequeath to my wife EUza J. Willey the undivided real estate of which I die seized. I also desire that my said wife shall control and have all the proceeds of said real estate until the same is divided either by the mutual consent of the parties interested or by the judgment of a proper court.</p> <p>“ Third: 1 also give and bequeath to my said wife all my household goods of every kind, pictures and ornaments; all horses, cows, hogs and young cattle now on my farm in Eichland county, "Wisconsin.</p> <p>“Fourth: I desire John'Annear to have from the residue •of my estate after my said wife has received her portion as above expressed, one hundred dollars, and the balance of my said estate I wish divided between the children of my ¡deceased daughters, Grace, Emily and Annie.”</p> <p>The deceased did not, at the time of the making of the will or at the time of his death, have any real estate except a homestead, and of that he was the sole owner. The probate court decided that the second subdivision of the will was void for uncertainty, but that the other portions of the .will were valid, and it was admitted to probate accordingly, leaving the homestead to pass as intestate property. On appeal of the widow to the circuit court the determination of the probate court was affirmed, and from the judgment ■of affirmance this appeal was taken.</p>

J. Yinje, Judge. Action to recover damages for wrongfully inducing plaintiff to part with capital stock in the Neeedah Lumber Oom-jpaivy belonging to her ward, for less than its fair value, the wrong consisting in purposely falsely representing the char.acter and value of the corporate property, the facilities for properly, continuing the business of the corporation, and the advisability of reducing the capital stock, for the purpose -of inducing plaintiff to surrender for…

<p>Appeal from a judgment of tbe circuit court for Lang-lade county: John Goodland, Circuit Judge.</p> <p>This is an action upon a promissory note for $1,500. Tbe answer admits tbe execution and delivery of tbe note, and alleges that on or about tbe 1st day of September, 1897, tbe' plaintiff, for value received, released tbis defendant from any further liability upon tbe note, and agreed to accept tbe liability of tbe Ingersol Land & Lumber Company therefor. TJpon tbe trial the plaintiff introduced tbe note in evidence and rested. Thereupon tbe defendant introduced evidence which tended to show that in the summer of 1897 tbe defendant bad a quantity of pine saw logs in bis possession, amounting to about 657,000 feet; that be owed tbe plaintiff bank $1,500 upon tbe note in suit, and that the bank bad a chattel mortgage upon tbe logs as security therefor; that about tbe 1st of September, 1897, one Bruce, acting as agent for tbe Ingersol Land & Lumber Company, met tbe defendant in Antigo, and proposed to buy tbe logs, and that they ágreed upon tbe purchase price, but were not able to complete the sale, because Bruce bad no money to pay down, and Ryan stated that there could be no sale, because he owed the Banlc of Antigo $1,500, for which they had a mortgage on the logs. Thereupon Bruce and Ryan went to the plaintiff bank for the purpose of endeavoring to arrange the matter so that Rycm should be released, the mortgage removed, and the liability of the Ingersol Land & Lumber Company accepted in place of Ryan’s. The testimony óf the defendant’s witnesses further tends to show that Rycm was then and there released by the cashier of the plaintiff bank from all liability, and that the liability of the Ingersol Land & Lumber Company was accepted in his place, and consent was given by the bank that the logs might be removed from the county and manufactured by the Ingersol Company, but that the note and securities which were to be given by the Ingersol Company Avere not at that time executed. The logs were immediately taken possession of by the Ingersol Company, with Ryan’s assistance, and were removed from the county and manufactured into lumber, but Ryan’s note was never delivered up, nor were any papers executed by the Ingersol Company, which soon thereafter failed. On the part of the plaintiff, the evidence of the bank cashier tended to show that there was' no actual, present release of Ryam agreed upon at the time of the transaction at the bank, but that it was understood that when the Ingersol Company returned a note and mortgage, such as was agreed upon, to the bank, then, and not till then, Ryan’s note was to be released. The cashier admits, however, that he consented on the part of the bank to the removal of the logs by the Ingersol Company. The jury returned a verdict for the defendant, a,nd from judgment thereon the plaintiff appeals. %</p>

<p>Appeal from an order of the circuit court for Oconto county: S. D. HastiNgs, Je., Circuit Judge.</p>

<p> Corporations: Reorganization: Mortgages: Mechanics’ liens: Foreclosure: Federal courts: Jurisdiction: Statutes: Pleading. </p> <p>Andrews & Whitcomb, rbortgagees of the-waterworks plant and franchises of the Oconto Water Company, used by it to supply water for public and private purposes in, and under contract with, the city of Oconto, foreclosed their mortgages by suit in which such proceedings were had that, in due form of law, they became the owners of all such property, the plaintiff not being a party to such suit. When such action was commenced plaintiff claimed a lien on the waterworks property for pipe furnished and used in the construction thereof by the Oconto Water Company, while the mortgagees were the owners of the stock of such company. Plaintiff foreclosed its lien claim in the federal court without making the mortgagees parties to the action. Thereafter, in an action in the federal court commenced by plaintiff against Andrews & Whit-comb and others to determiné the status of the lien judgment as regards the title under the mortgages, it was decided that waterworks property, circumstanced as the property in controversy, is not subject to materialmen’s or mechanics’ liens under ch. 143, B. S. 1878; that Andrews & Whitcomb, not being parties to the lien suit, were not affected by the judgment rendered therein, and in effect that they owned the property in controversy under the mortgage foreclosure sale free from any claim under such lien judgment. Thereafter, plaintiff enforced the lien judgment, a sale being made by the United States marshal and deed executed and delivered by him pursuant to such sale, in form conveying the property to plaintiff. After Andrews & Whitcomb obtained title under the mortgages, they organized the defendant corporation for the purpose of having such corporation acquire title to the property in controversy, with the incidental right to exercise the powers, privileges, and franchises formerly possessed by the Oconto Water Company, pursuant to sec. 1788, Stats. 1898, which purpose was carried out. After the conveyance under the lien decree, plaintiff commenced this action to obtain possession of the property, claiming that defendant, as a successor corporation, under sec. 1788, Stats. 1898, .assumed the liabilities of its predecessor, and that, in taking the benefit of the property, it became at least equitably bound to discharge the burdens upon it. Held:</p> <p>(1) The principle, that when one corporation goes out of existence by merger with or annexation to another corporation, in the absence of any provision or arrangement as to the liabilities of the former, the latter is answerable therefor, does not apply.</p> <p>(2) A reorganized corporation, so called, entitled under sec. 1788, Stats. 1898, to exercise the rights, privileges, and franchises of its predecessors, is not a continuation of the old corporation, but an entirely new body entitled to hold and enjoy the property formerly owned by the old corporation free from the latter’s liabilities, including liens against such property not prior to that through which the new corporation acquired title.</p> <p>(3) A mortgage of the property, rights, and franchises of a corporation carries with it the right, under sec. 1788, Stats. 1898, in case of the legal title being acquired under the mortgage by a new corporation organized for purposes similar to those of the mortgagor, to exercise all the rights, privileges, and franchises of the old corporation. Its purpose is to add to the value of the property, as security, the incident of a successor corporation having the same rights as its predecessor, free from all its liabilities which were not-liens thereon under the prior corporate ownership paramount to the lien forming the basis of the new title.</p> <p>(4) The rule rendering a new owner of property liable for liens resting upon it,— that he must bear the burdens who would derive the advantages,— does not apply, because the title came to respondent free from any claim of the appellant.</p> <p>(5) The commencement of the lien suit in the federal court did not conflict with the jurisdiction of the state court of the action subsequently commenced to foreclose the mortgage, since the subject of the first suit was distinct from that of the second, and the-federal court did not acquire actual possession of the property.</p> <p>(6) When pleaded facts constitute a defense without any judgment decreeing affirmative relief, it is not error to adjudge affirm-, atively the existence of such facts, if established by evidence, and the legal effect thereof, though there be no prayer for affirmative relief in the answer.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeal from a judgment of the circuit court for Brown county:. S. D. Hastings, Jb., Circuit Judge.</p> <p>Action to recover damages for injuries alleged to have been occasioned by the negligence of one of defendant’s firemen, who was temporarily in charge of one of its locomotives. The train crew were engaged in switching. It is alleged that, while engaged in the discharge of his duties as ■brakeman, the plaintiff stepped between two moving cars to draw the coupling pin to cut off one of the cars; that, while so engaged, the fireman who was operating the engine negligently and carelessly increased the speed to such an extent as to make the discharge of that duty unnecessarily and unreasonably dangerous, and the plaintiff, being compelled to move with great haste, tripped against a spike carelessly left in the block of a switch, fell, and had his right leg so crushed as to require amputation.</p> <p>The jury rendered a special verdict as follows: “ First Question. Was the plaintiff injured April 4, 1896, while engaged in switching cars for the defendant at Marinette ? A. Yes (By the court). Second Question. "Were the cars which the plaintiff was uncoupling at the time of his injury moving from a point near the sidewalk on the west side of State street to switch No. 3 at a speed which rendered the plaintiff’s said work unreasonably dangerous. A. Yes (By the court). Tlivrd Qxwstion. Was Mullendyke, who was running the engine, guilty of negligence in pushing said cars so that they moved at that time at the speed they were going ? A. Yes. Fourth Question. If jour answer to the third ques- ■ tion should be ‘ Yes,5 then answer this: Was said negligence «of said Mullendyke a proximate cause of the plaintiff’s injury ? A. Yes. Fifth Question. If you answer the fourth «question‘Yes,’then answer this: Ought a man of ordinary intelligence and prudence, in Mullendyke’s position, to have reasonably expected that, by pushing the cars at the speed at which he pushed them, he would have caused some such injury to the plaintiff as that sustained by him? A. Yes. Sixth Qxiestion. Was the defendant’s track, at the place where the plaintiff was injured, rendered unnecessarily and unreasonably dangerous by reason of the manner in which the block in front of the split switch was spiked down ? A. Yes. Seventh Question. If you answer the sixth question ‘Yes,’ then answer this: Was such condition of said track a proximate cause of the plaintiff’s injury ? A. Yes. Eighth Question. If you should answer the seventh question ‘Yes,’ then answer this: Would a man of ordinary intelligence and prudence, intrusted with the duty of putting said track in a reasonably safe condition at that .place, have reasonably expected that its, condition would have caused some such injury to an employee of said defendant as that sustained by the plaintiff? A. Yes. Ninth Question. Was the signal given by the conductor after the cars were over switch No. 1 a signal to cut off one car or a signal to draw the pin ? A. To cut off one car. Tenth Question. Did Depow and Mullendyke understand the conductor’s signal to be a signal to cut off all the cars, and act upon that understanding? A. Yes (By the court, with consent of both parties). Eleventh Question. Ought a man of ordinary intelligence and prudence, in Mullendyke’s position, to have known or expected that the plaintiff was on the ground between the cars, engaged in an attempt to cut off one car? A. Yes. Twelfth Question. Was there a slight want of ordinary care on the part of the plaintiff, which contributed to his injury, in going or remaining between the moving cars as he did? A. No. Thirteenth Question. Would a person of ordinary care and prudence, in the plaintiff’s situation, have remained between the cars when he went in the second time, after he discovered that the pin was stuck? A. Yes. Fourteenth Question. At what amount do you assess the plaintiff’s damages ? A. $6,500.”</p> <p>The plaintiff moved for judgment on the verdict, which was denied. The defendant made a motion to strike out certain answers as against the evidence, and to change certain other answers in accordance with the uncontradicted evi-. dence. After due consideration, the court entered the following order: “It is ordered that the special verdict be amended as follows, to wit: (1) The answer to the fourth question of the special verdict is stricken out as contrary to the uncontradicted evidence. (2) The answer to the ■ fifth question of the special verdict is stricken out as contrary to the uncontradicted evidence, and at variance with the tenth finding of the special verdict entered by consent of the parties. (3) The answers to the sixth, seventh, and eighth questions of the special verdict are stricken out, and in lieu thereof is inserted the answer £No’ to each of such questions, as in accordance with the uncontradicted evidence. (4) The answer to the eleventh question of the special verdict is stricken out as contrary to the uncontradicted evidence, and at variance with the tenth finding of the special verdict entered by consent of the parties, and said question is hereby answered ‘ No.’. (5) The answer to the twelfth question of the special verdict is stricken out as contrary to the uncontradicted evidence, and said question is hereby answered ‘Yes.’ (6) The answer to the thirteenth question of the special verdict is stricken out as contrary to the uncontradicted evidence, and the same is hereby answered £No.’ It is further ordered that, upon the verdict as so amended, and upon the pleadings, records, and uncontradicted evidence, the defendant is entitled to judgment dismissing the complaint, and for costs. Let judgment be entered accordingly.”</p> <p>Judgment was thereupon entered for defendant, and the plaintiff appeals.</p>

<p>Appeals from judgments of the circuit court for Oconto •county: S. D. Hastings, Je., Circuit Judge.</p> <p>Two actions, one in equity, and the other at law. In the first action it is alleged that the plaintiff is a corporation •organized under the laws of this state for the purpose of constructing and operating waterworks in said city; that in August, 1890, the Oconto "Water Company, a corporation, entered into a contract with the city, by a proper ordinance, to build and operate a system of waterworks in said city, which were completed and accepted by the city in September, 1891; that in July, 1892, the privileges and franchises of the Oconto Water Company were sold and transferred to the plaintiff; that said company and this plaintiff have fully complied with the terms of said contract, and the city has accepted the service so rendered, without objection or complaint, and has each year levied and collected the special tax to pay the hydrant rentals, as provided by said contract or ordinance, up to 1898; that, under the terms of the ordinance and subsequent ordinances, the hydrant rental for 1897 amounted to $6,900, payable in semi-annual instalments, the one coming due on January 1, 1898, being the last one that was paid; that on January 14, 1898, the city instructed the city attorney to notify the plaintiff that the city believed the hydrant rental was excessive, and July 5,1898, a resolution was adopted refusing to pay further rentals, for the reason that the city considered the contract invalid, and the hydrant rentals unreasonably high, and offering to pay the sum of $40 per year per hydrant in lieu of the amount stipulated in the contract; that the city refused to pay the rental due July 1, 1898, amounting to $3,450, which sum it had in its treasury, raised for that purpose; that plaintiff is informed and believes that, unless restrained, the city will divert said fund to other purposes; that the prompt and efficient performance of its duties by plaintiff depends largely upon the performance by the city Of its obligations under the contract; that plaintiff is informed and believes that the city does not intend to levy the tax for the year 1898 to pay the rentals due in 1899, but only sufficient to pay the reduced rental at the rate before mentioned; and that the plaintiff has no adequate remedy at law, as the city has no special fund to pay any final judgment rendered, and there would be a multiplicity of actions to obtain relief. The demand for relief is that the city be restrained from diverting the trust fund of $3,450, raised to pay the rental due July 1,1898, and that the city and its common council be commanded to levy and collect a special tax of $6,900 to pay the rentals coming due in 1899.</p> <p>The answer set up that, at the time the waterworks were completed and accepted, sec. 2, subch. Y, ch. 56, Laws of 1882, being the city charter, provided a limitation upon the power of the common council to levy taxes of not to exceed one half of one per cent, for current expenses, and also a like limitation for all other purposes, except for schools, bridges, and tbe payment of principal and interest of any outstanding debts or obligations, and that the city had no other or greater power to levy taxes for the purpose of waterworks or fire protection than as prescribed therein. The answer further sets up the levies made by the city from year to year since the contract was made, which were- claimed to be in excess of the power of the city to levy taxes- for those purposes under the limitations mentioned, and alleges that because the contract required the city to raise an annual tax of at least $6,500 for thirty years, and said sum was larger than the city had any right to levy, it was ultra vires and void. It also set out facts from which -it was- claimed the contract was unreasonable, and ought to be declared void, and that the city was only liable for the reasonable value of the services rendered. It was also alleged that the plaintiff had an adequate remedy at law, and expressly denied any intention to use or divert the sum raised to pay the rental due in July, 1898.</p> <p>, The court found all the allegations of the complaint to be true; that, at the time of the commencement of the action-, the said sum of $3,450 raised by the city to pay the rental due July 1, 1898, was in the city treasury, and that December 10, 1898, the city paid plaintiff, by consent, the sum of $1,835.25, the remainder remaining in the treasury; that to* pay the rental due January and July!, 1899, the city only raised the sum of $4,325.26; that the city had refused to-pay the rentals due under the contract, and intends to refuse to pay subsequent rentals, unless the plaintiff accepts the-offer to pay at the rate of $40 per- year per hydrant. The findings further determine the amount the city has raised-each year by taxation for the purpose of' paying its rentals, and the valuation of property in the city. The court concluded, among other things, that the plaintiff was entitled to judgment declaring the contract valid, and declaring it the duty of the city, so long as- the contract remained in-force and was duly performed by plaintiff, to annually levy and collect a tax sufficient to pay the hydrant rentals as they should become due, and also to levy a tax to make up the difference in the tax levied for the year 1898, and also to a judgment restraining the city from diverting the money on hand, or which might thereafter be raised by taxation for that purpose, to any other purpose than the payment of the hydrant rentals, and requiring the city to pay over the money on hand.</p> <p>Judgment was accordingly entered for the plaintiff pursuant to these findings.</p> <p>The action at law is based upon the instalment of hydrant rental that became due January 1,1899, and which the city refused to pay. The answer is similar to the one in the other suit. Both actions were tried by the court.</p> <p>In the second action, findings were made for the plaintiff, and judgment entered for the plaintiff.</p> <p>Appeals from both judgments were taken by defendant.</p> <p>They contended, inter alia, that the city of Oconto had no lawful right to comply with the judgment and therefore the judgment was unauthorized. Sec. 23, subch. Y, and subd. 6, sec. 7, subch. X, ch. 56, Laws of 1882; sec. 3, art. XI, Const.; State ex rel. Marinette, T. <& W. R. Go. v. Tomahawk, 96 Wis. 73; Oampbdlv. Kenosha, 5 Wall. 194; Bankof Romev. Rome, 18 FT. Y. 38; People v. Mahaney, 13 Mich. 497; Maloy v. Marietta, 11 Ohio St. 636; Mines v. Leavenworth, 3 Kan. 186; Bullv. Oonroe, 13 Wis. 233; Ea/rlesv. Wells, 94 Wis. 285, 298; O. S. v\ Macon, 99 U. S. 582; U. S. ex rel. Ranger v. Mew Orlea/ns, 2 Woods, 230; Heine v. Levee Gomni’rs, 1 Woods, 246, 247; State ex rel. Shackelton v. Guttenberg, 39 FT. J. Law, 660; Patterson-v. Spearman, 37 Iowa, 36; Beaulieu v. Pleasant Hill, 14 Fed. Rep. 222; Supervisors v.' U. S. 18 Wall. 71; 1 Dillon, Mun. Corp. (3d ed.), § 162. Tbe contract extending for thirty years is unreasonable and void. Lamcvr W. dk E. L. Co. v. Lamar, 128 Mo. 188; Wahlschlager v. Liberty, 23 Wis. 362; Kane v. /School District, 52 Wis. 502; Loam, Asso. v. Topeka, 20 Wall. 655; Damenport v. Iileinschmidt, 6 Mont. 502; Los Angeles O. W. Go.v. Los Angeles, 88 Eed. Eep. 736; Brenham v. Brenham, 67 Tex. 542; Bichmond G. G. L. Go. v. Middleton, 59 N. Y. 228; Garrison v. Chicago, 7 Biss. 488; Tlvrift v. Elizabeth Oity, 122 N. C. 31; Saginaw G. L. Go. v. Sagina/w, 28 Eed. Eep. 529; State ex rél. Affly Gen. v. Gm-cvrvnati G. L. da O. Go. 18 Ohio St. 262; Long v. Duluth, 49 Minn. 280.</p> <p>contended, imter alia, •that equity will direct the levy and collection of taxes necessary to provide and maintain the trust fund created for payment of the amounts to become due on the contract. Oh. 361, Laws of 1897; People v. Oanal Boamd, 55 N. Y. 394; Green v. Mimford, 5 E. I. 472; Miller v. Drane, 100 Wis. 1; Prescott v. Everts, 4 Wis. 314; Akerlyv. Vilas, 15 Wis. 401; Van Ben-sélaer v. Van Benselaer, 113 N. Y. 207, 214; KiTbowrne v. Supers of Sullivan Go. 137 N. Y. 178; Fowler v. Brown, 51 Neb. 414; Watson v. Sutherland, 5 Wall. 74; Lyon v. McLaughlin, 32 Yt. 423; Kimberley da Glamk Go. v. Hewitt, 75 Wis. 371; 1 Spelling, Extraordinary Belief, .§§ 468,469, 485, 504; Whitemam, v. Fayette G. Go. 139 Pa. St. 492; Ernst v. Hew Orleams W. W. Go. 39 La. Ann. 550; Last Chance W. D. Go. v. Heilbron, 86 Cal. 1; Permsylvcvrda B. Go. v. St. Louis, A. da T. H. B. Co. 118 U. S. 290; Union Pacific B. Go. v. O., B. 1. ds P. B. Go. 163 U. S. 564, 600, et seg.; FrcmkUn Tel. Go. v. Hamrison, 145 U. S. 459; Pass v. McBae, 36 Miss. 148; Ogden v. Smmclers, 12 Wheat. 332; Evans v. Vvrgm, 72 Wis. 427; Paine v. Jones, 93 Wis. 76.</p>

<p>Mandamus to D. H. Johnson, Dudge of the Circuit Court for Milwaukee County.</p> <p>On October 22, 1897, this court reversed a judgment in favor of John S. Conway and against the relator. 97 Wis. 290. The costs upon such reversal were taxed at $216.20. Plaintiff paid the fees of the clerk of this court, and procured a remitütur to be filed, and noticed said cause for the October term of the circuit court for Milwaukee county, commencing October 3, 1898. On that day, in arranging the calendar, the plaintiff requested, and defendant consented, that this cause be marked not to be taken up for trial prior to November 2, 1898. On November 1, 1898, relator procured and served an order to show cause why said action should not be dismissed for nonpayment of costs within one year from the date of the reversal, that order being returnable November 12th and being based upon affidavits showing the fact of nonpayment. On November 12th the attorneys for said Conway appeared, and represented to the court that amendment of the pleadings and continuance of the cause would be necessary, and that they were then willing to pay the costs taxed in this court, whereupon the court entered an order denying relator’s motion that the cause be dismissed, and thereafter, and from term to term since, has continued said action upon the application of plaintiff therein, and without the consent of the relator. On November 18, 1898, Conway’s attorneys tendered an inadequate amount as costs, which was refused by relator’s attorneys. Upon these facts, which are not substantially ■ changed by the return, an alternative writ of mandamus was issued, to which return has been made.</p>

<p>Appeal from a judgment of the circuit court for Oconto . county: S. D. Hastings, Je., Circuit Judge.</p>

<p>Appeal from an order of the circuit court for Ashland county: JohN K. Paeish, Circuit Judge.</p> <p>Certain persons holding claims against the Nimikon Iron Mining Company, for which the stockholders of such company were personally liable under sec. 1769, R. S. 1878, commenced an action against such corporation and all its stockholders to enforce such liability. Such proceedings were duly had that on the 6th day of February, 1897, a judgment was rendered decreeing that there was due to the creditors represented, as plaintiffs, $14,581.13 damages and costs; that certain stockholders, naming them, were liable therefor to the amount of their respective holdings of stock, specifying the same as to each stockholder, or sufficient thereof to satisfy. the indebtedness mentioned. ' After the rendition of such judgment certain of the stockholders adjudged to be liable paid the entire amount of the indebtedness mentioned, but not in proportion to their stock. All of such paying stockholders assigned their claims against their associate stockholders for contribution, to plaintiff, George O. Foster, who thereupon brought this action against the corporation and all the stockholders of the company, except his assign- • ors and nonresidents of the state. The matters heretofore referred to are set forth in the complaint by appropriate allegations, and in addition to the respective holdings of stock of the defendants at the time the indebtedness to the plaintiff’s assignors was incurred by the corporation, the fact that the corporation is insolvent and has ceased to do business, and some other matters not material to the questions raised on the appeal. Defendants George B. Posson, F. lipjp-numn and E. E. Richter demurred to the complaint, first, for defect of parties defendant in that several of the alleged paying stockholders and assignors of plaintiff, naming them, were omitted; second, for want of facts sufficient to constitute a cause of action; and, third, because the action was barred by the statute of limitations. The demurrer was overruled, and from the order accordingly entered this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: W. 0. Silyeethoef, Judge.</p>

<p>Taxation: School districts: Mistake in performance of official duty: Title-to funds raised by taxation: Municipal corporations: Mandamus.</p> <p>1. The county board of Price county, in determining the amount of tax to be levied in the town of W. for county purposes, included an ■item for “county school tax.” This amount, with all other items of state and county taxes, was certified by the county clerk to the town clerk of the town of W. and, through the statutory channels, levied, collected, and paid into the county treasury, the town being under the township system of school government. The relators thereupon sued out a writ of mandamus to compel the county treasurer to pay over such sum to the tpwn treasurer for their use as the board of school'directors of said town. _HeM,tbat the county ■ board having the power and duty, by sec. 1074, R. S. 1878, to include, in the levy and certification of county taxes to the town clerk, a direction to raise a certain amount of taxes for the use of relators as a distinct corporation, the actions of the county board, and of the several officers, must be treated as mistakes and irregularities; and that the fund in question belonged, not to the town, but to the school district, and should be in the custody of the town treasurer for its use.</p> <p>3. The fund so raised having passed into the county treasury and become a part of the county moneys in the custody of respondent; and the relators’ right thereto being against the county, based on an implied contract to repay money had and received to their use; and the statute requiring their claim to be presented to the county board, and providing for bringing the matter into court only by appeal, equivalent to an action at law; and the county treasurer under sec. 715, Stats. 1898, having no authority to pay the same over unless its payment has been authorized by a vote of the county board, certified to him by its chairman and county clerk,— a clear and adequate remedy is provided, and hence a case was not presented that entitled relators to .the extraordinary and summary process of mandamus against such county treasurer.</p>

<p> Deference: Setting aside findings by referee: Sales. </p> <p>Defendants and S. having entered into a contract to cut certain saw logs and bank the same, plaintiff furnished certain supplies to S., and brought this action, alleging that the defendants and S. jointly contracted therefor. Held, that the finding of the referee, that defendants were indebted for such supplies, was against the clear preponderance of the evidence. ■'</p>

<p>Appeal from a judgment of the circuit court for Ashland •county: JohN K. Paeish, Circuit Judge.</p> <p>Action to enforce several subcontractors’ liens upon a -dwelling bouse and the grounds upon which it was situated. 'The controversy involved the validity of several of the lien claims. The principal contract was between John II. Foster and Frank Houle as builders, and Emma W. Shores as owner. Houle sold out early to Foster, the latter assuming and agreeing to carry out all of the provisions of the contract upon the part of the builders. The principal contract price was $28,5JO, subject to additions and deductions on account of alterations that might be required and ordered by the supervising architect. The principal subcontract was with the Northern Manufacturing Company for the inside mill work of the building, the contract price for such work being • $5,950, subject to additions and deductions as in the principal contract. Such subcontractor, before its work was «done, made an assignment for the benefit of creditors to A. E. Dixon, who claimed to have completed the work. The amount claimed to be due on such subcontract was $2,901.16*. 'There was a claim by the Ashland Dime, Salt <& Cement ■Compamy for $149 for material furnished the principal contractors. Also a subcontractor’s claim by P. J. Dullamiy for $911.84, alleged to be due on a plumbing contract. There were several other claims, but those particularly mentioned were the subjects of the controversy. The pleadings on the part of the claimants did not set forth the terms of the principal contract, or the subcontract with the manufacturing company. Such company’s pleading stated in general terms that it and A. E. Dixon, its assignee, furnished to the principal contractors at their request, work, labor, and material in the construction of the building and that the amount due therefor was $2,904.16. It admitted delay in performing the contract, but alleged that it was caused by the conduct of the principal contractors and their architect and was waived by them. It also alleged, without stating facts requiring an appraisal of the value of extras furnished by the subcontractor, that the supervising architect wilfully refused to appraise and value such extras as were furnished, or to submit the matter to arbitration. There were answers by the principal contractor and the owner, setting forth the principal contract, the contract with the manufacturing company, and the contract with Dullanty for the plumbing. A breach of contract in each case was alleged, and there was a counterclaim for damages, those claimed against the manufacturing company and its assignee being $6,200, and against Dullcmty $2,500. Replies were duly made to the counterclaims, alleging excuse for nonperformance of the manufacturing company’s contract as to time and substantial performance of such contract in all other respects and of the other contracts mentioned. The principal contract required the building to be completed by the 1st day of July, 1898, and the subcontract with the manufacturing company provided for completion of the work covered by it by.the 1st day of May, 1898. Each contract provided for the payment of $5 per day as liquidated damages for each day’s delay not caused by certain specified circumstances, for which the architect was to make proper allowances subject to an ap- ‘ peal to arbitrators. The principal contract and the subcontract with the manufacturing company were identical as to all general provisions. Each contained the following stipulations: The work shall be performed under the direction and to the satisfaction of John W. Foster, acting as agent of the owner; the contractors shall, within twenty-four hours of receiving written notice from the architect to that effect, proceed to remove from the grounds or buildings all materials condemned by him, whether worked or unworked, or take down all portions of the work which the architect shall condemn as unsound or improper, or as in any way failing to conform to the drawings and specifications, and to the conditions of this contract; the architect shall be permitted to inspect the work at all times during the progress of the building, and shall be provided with sufficient, safe, and proper facilities for that purpose by the contractors ;• in case the work is delayed by the fault of any other contractor, or any alteration required, or damage by fire or unusual action of the elements or otherwise, or abandonment of the work by employees through no fault of the contractor, such contractor shall be allowed additional time beyond the date set ■for the completion of the work, such allowance to be made upon a claim in writing made at the time of the obstruction or delay, and the architect to certify the additional time to be allowed, subject to an appeal from his award to arbitrators; on the 1st day of each month as the work progresses, a payment shall be made for eighty-five per cent, of the work done during the preceding month, based on an estimate approved by the architect and certified by him that such work has been done to his satisfaction; no certificate given or payment made, except a final certificate or final payment, shall be conclusive evidence of the performance of the contract either in whole or in part, and no payment shall be construed ' to be in acceptance of defective work.</p> <p>The cause was tried before a referee who made findings of fact and conclusions of law covering all the issues. Such findings, as to the matters controverted on the evidence and material to the appeal, were in substance as follows: The Uorthern Manufacturing Company proceeded to perform its contract according to the terms thereof. The architect agreed upon to superintend and pass upon the work as it proceeded was constantly present in the performance of his duties during the time the building was being constructed. He changed the plans from time to time as he was authorized to do, and the company was required to conform thereto. He permitted and sanctioned the use of other building material in the building than such as was called for by the specifications, particularly the use of flat-sawed in place of quarter-sawed oak in the second and third stories. The principal contractor greatly delayed the manufacturing company in its work. Payments to the amount of $4,500 were made to the manufacturing company without any architect’s certificate or estimate. No such, certificate, from first to last, was asked for, demanded, or required. The provisions of the contract in that regard were wholly ignored and waived. The architect did not condemn any of the work or material in accordance with the terms of the contract. He refused to value the extras furnished under the manufacturing company contract or to submit the matter to arbitration as the contract provided. The manufacturing company and its assignee, without the consent of the architect, neglected to perform the manufacturing company contract in the following particulars: using flat-sawed oak in place of quarter-sawed oak in the first story; omitting to do blind nailing at all points required; using some wood on the inside finish which was not thoroughly seasoned; and by inexcusable delay in the performance of the work for twenty-five days. The Northern Manufacturing Company contract and the principal contract, on the whole, were substantially performed. In respect to those matters where there was a departure from strict performance, liability for damages was incurred to the amount of' $1,000, which should be allowed as a counterclaim to the amount of the claim of the assignee of such company, leaving the balance due for work done under the contract, and for extras, $1,550.74. The claim of the Ashland Lime, Salt <& Cement Company was originally $149, and should be reduced by payments which were made thereon, to $124.34. The JDullanty contract for the plumbing work was substantially performed. The balance due him therefor, and for-extra work, is $971.84.</p> <p>The referee’s report was confirmed by the court, except-as to the amount found due DuUcmty for the plumbing Avork. That was reduced ten per cent. Judgment -was rendered establishing the amount due from the principal contractor as to each claimant, and in all other respects in. accordance with the statutes governing the subject. Exceptions were filed and preserved in the bill of exceptions, so as to present the questions discussed in the opinion.</p>

<p> Municipal corporations: Personal injuries: Filing claims: Disallowance: Appeal: Independent action: Statute of limitations: General city charter law. </p> <p>1. Plaintiff, having been injured by a defective sidewalk, gave written notice of such injury and filed a statement of his claim for damages, and more than five months thereafter, the common council having failed to act thereon, brought this independent action instead of taking an appeal from the nonaction of the council. The defendant city was organized under the general city charter law which was-in force therein during all the times in question. Held, that under its provisions (seo. 58, ch. 326, Laws of 1889, as amended by seo. 27, ch. 312, Laws of 1893) the words “any claim or demand of any kind or character whatsoever ” were broad enough t'o include the claim for damages alleged.</p> <p>U. The nonaction of the common council within sixty days after plaintiff filed his claim was a disallowance thereof, and he having failed to take his appeal therefrom within the twenty days allowed by sec. 60, ch. 326, Laws of 1889, his right to bring any action on such claim was barred under sec. 59, ch. 326, Laws of 1889.</p> <p>3. This action having been commenced after the Statutes of 1898 went into effect, the fact that the words “of any kind or character whatsoever,” contained in sec. 58, ch. 326, Laws of 1889, as amended by sec. 27, ch. 312, Laws of 1893, were dropped out of the corresponding section of the revision did not revive plaintiff’s right of action which was then barred by said charter provisions.</p>

<p>Appeal from a judgment of tlie circuit court for Marathon county: Chas. M. Webb, Judge.</p> <p>Plaintiff secured a judgment for $2,500 and costs for injuries claimed to have been sustained by him by reason of the negligence of the defendant Donahue. The defendants are copartners engaged in logging. Plaintiff entered them employment as a laborer. On March 12,1896, plaintiff, the defendant Donahue, and one Munster, the teamster, were engaged in taking out, and sawing into logs, some skids that had been in use during the winter. These skids were forty or fifty feet long, about one foot in diameter at the large end, and sis inches at the other.' They lay at right angles with the road, the large end being nearest the road, and were grouped in pairs. They were seven or eight feet apart next to the road, and about four feet at the other end. They lay flat on the ground, and were partially embedded in snow and ice. The work being done was to get the skids loose and saw them into logs. Seven or eight pieces had been taken up before the accident. The teamster would hitch his. team to the large end, and give it a pull. If it did not come loose, they would chop the snow and ice away from the sides until it could be loosened. At the time of the accident the teamster had tried the skid with the team, but it held fast. Both plaintiff and the' teamster commenced chopping to loosen it. Plaintiff was working between the two skids, with his back to the team. Donahue came up, and directed the teamster to start the team, without warning plaintiff. The log snapped loose from the ice, and was jerked around, catching plaintiff’s leg, and crushing it so badly that it had to be amputated. The defendants take this appeal, and claim that no negligence is shown; that the verdict is against the weight of the evidence; and that the court misdirected the jury.</p>

<p> Appeal: Instructions to jury: Material error: Presumptions: Fires: Negligence. </p> <p>1. Where an issue of fact is submitted to the jury, it raises a presumption that there was evidence from which an inference could reasonably have been drawn either way in regard to it, which justified correct instructions as to the law applicable thereto; and the materiality of the issue, and the fact that it was submitted to the jury for determination, satisfies all calls for affirmative showing of prejudicial error, and if the instructions in regard to such issue were erroneous, error may be successfully assigned on exceptions to such instructions, even though the evidence in the case is not preserved and made a part of the record by a bill of exceptions.</p> <p>2. In an action for a loss alleged to have been caused by the negligence of defendant in starting a fire on his premises and permitting it to spread to the premises of the plaintiff, an instruction to the jury,, in effect, that whether the acts of plaintiff were negligent or not was governed by what would be the ordinary usage and custom that people observed, in the use of fire, with regard to their own surroundings, as well as the surroundings of their neighbors, is Held to be materially erroneous, in that the abstract standard of ■ care, given as the test, was not confined to “such care as the great mass of mankind ordinarily exercise,” and because such standard was not made correct, relative to the particular state of facts, by adding “under the same or similar circumstances.”</p>

0. Silvebthobit, Circuit Judge. Plaintiff is a Wisconsin corporation. Between August 15, 1885, and May, 1894, the defendant Eudolph Weidauer was a stockholder and officer of plaintiff. During that time he ■became indebted to it in the sum of .$2,660.85, of which amount $2,119.54 became due prior to May 4, 1891. The plaintiff obtained judgment against him for the amount first above stated on March 80, 1898, which remains unpaid.

Appeai, from a judgment of the circuit court for Lincoln, county: W. 0. Silvebthobit, Circuit Judge. Action in ejectment. The complaint alleged that the plaintiff was the absolute owner in fee simple and entitled to the possession of certain real estate; that the defendant was in the possession and withheld it; and demanded judgment “ against the defendant for the possession of said premises,” and for damages.

<p>MaNdamus to D. H. JohNSON, Judge of the Circuit Court for Milwaukee County.</p> <p>June 1,1893, The Plankintoii Bank, a banking corporation organized under the laws of this state and located at the city of Milwaukee, made a voluntary assignment for the benefit of creditors to its vice president, William Plankinton, who, in due time, qualified and entered upon the duties of the trust created by such assignment. He failed to file a report of his doings as assignee till July 1,1898, at which time he made a report in response to an order of the court requiring it, which, on due notice to creditors, was brought to the attention of the court August 10,1898, when such objections as the nature of the account would permit were filed by creditors, and a motion was made that the assignee be required to file a more definite and certain account. May 9, 1899, without disposing of such motion and without any opportunity for the creditors to be heard on the merits of the account, the court made an order approving it, except as to the claim of the assignee for compensation, as full and complete and in accordance with the statute governing the subject, up to the date thereof, and extending the time for the final settlement of the estate till January 1, 1900. On the next day the assignee resigned and his resignation was accepted by the court to take effect upon the final confirmation of his account, and the matter was referred to a circuit court commissioner to state the account subsequent to the Rate of the one filed as aforesaid and to report such statement to the court. After the making of such order the court refused to allow the creditors to examine the officers •of the assignor and the assignee before the court or a commissioner thereof, and thereafter, on the 17th day of June, •entered an order denying the motion of the July previous, that the assignee make his account more definite and certain. ’Some days later the last-mentioned order was amended by making all the papers in the assignment proceedings a part-of the record in the proceedings which resulted in its entry.</p> <p>At that stage of the administration of the assignment last .above indicated, this court, on a petition setting forth all the facts above detailed and facts showing that the rights of the creditors would be lost beyond remedy unless immediate relief were granted against the various judicial acts referred to, duly issued an alternative writ of mandamus requiring the circuit judge to allow the creditors to examine the as-signee and officers of the assignor and to file objections to the assignee’s account that had been confirmed, and to vacate the orders referred to standing in the way of such examination and the filing and hearing of such objections, or to show cause why to the contrary on the return day named in the writ. Such proceedings were had on such return day and thereafter, that this court decided that the assignee’s account of July 1,1898, was not a compliance with the statute in regard to a final account; that the creditors had an absolute right under sec. 16935 to an inspection of the assignor’s books and to examine the officers of the assignor under oath; that, independent of the statute, the creditors were entitled to examine the assignee and the officers of the assignor within reasonable limits, and that the denial of that privilege was beyond the discretionary power of the circuit court; that under the constitutional superintending power of this court it may compel lower courts to do acts not discretionary, and, as to discretionary acts, may compel them to perform their duty by exercising judicial discretion in the premises and to undo acts done in such manifest disregard of judicial duty as to leave no room to say there was a reasonable excuse therefor, — it appearing that, without such exercise of such superintending power, the denial of rights secured by law wouLd go without any adequate remedy and cause great and irreparable mischief and hardship; and that the disclosures made in the proceedings for the writ of mandamus warranted the exercise of such superintending power within the principles stated.</p> <p>In accordance with the conclusions reached, as indicated, a peremptory writ of mandmius was issued, in effect making mandatory the alternative commands of the first writ. The case will be found reported in 103 Wis. 591.</p> <p>June 13, 1899, a petition was filed in the circuit court, purporting to be signed by a majority of the creditors of the assignor representing a majority in value of the debts against the assigned estate, setting forth such to be the facts; that the assignee, with other officers of the assignor, were liable to creditors for abuse of their trust as such officers; that the personal interests of the assignee were adverse to the interests of the creditors which he was hound to protect; that he had neglected and was neglecting his duties as as-signee in order to conserve his personal interests, to the great damage of the creditors, and that the creditors would be irreparably damaged unless an assignee wholly devoted to their interests were appointed. Henry W. Herman was named by the petitioners as a suitable person to be appointed in place of Mr. Plankinton, and his appointment was requested. The petition, on due notice to the creditors and all parties interested, was brought to the attention of the court,, whereupon the assignee filed an answer thereto, among other things taking issue with its allegations as to the parties thereto being sufficient to require his dismissal under the statute, sec. 1702. Thereupon the petition was-amended by correcting and verifying names of creditors that were misspelled so as not to be easily identified as identical with names of creditors haying claims on file, also by correcting mistakes that resulted in the same name appearing twice in the petition, and by adding to the petition the names of a considerable number of creditors who came in- and participated in the proceedings subsequent to the making up of the petition in the first instance. The original and amended petitions showed on their face that they contained the number of creditors representing the amount of debts-against the assignor, requiring, as matter of right, a change in the assignee under sec. 17025. Opportunity was given the assignee to. take issue with the allegations of the amended petition, but he neglected to do so till long after he ceased' to be assignee, as hereinafter stated.</p> <p>While the proceedings for the removal of Mr. Plankinton were at the stage above set forth, an order was entered pursuant to the writ of mandamus issued as before indicated, vacating an order previously made accepting the resignation of Mr. Plankinton conditionally, and at the same time the judge, of his own motion, accepted such resignation as follows: “ It is ordered that the resignation of William Plank-inton, assignee of The Plankinton Bank, the assignor above named, be and the same is hereby accepted to take effect upon the appointment and qualification of his successor.”</p> <p>On the 14th day of July, 1899, the matter of the appointment of a successor to Mr. Plankinton as assignee was taken up by the circuit court and heard. There were no objections or exceptions on file, or made on the hearing, to the appointment of Henry W. Herman in accordance with the-nomination made by the creditors in their petition, and no-question was made by any creditor or any person on behalf of creditors, or the former assignee, Mr. Plankinton, or bj any person interested in tbe assignment, but that tbe petition was sufficiently representative of tbe creditors of tbe assigned estate to satisfy all tbe requisites of sec. 1702. The court took the matter of tbe appointment under advisement and on the following day officially stated that for tbe purposes of tbe proceedings it would be taken for granted that tbe petition satisfied tbe requisites of sec. 1702, but that such section did not require, in any event, tbe appointment as assignee of the person nominated by tbe creditors; that tbe statute left it entirely to tbe discretion of tbe circuit court or judge to name such person as assignee as in bis judgment was best suited for the trust. Thereupon, without informing tbe creditors of any other reason for ignoring their wishes in regard to tbe appointment of Mr. Herman, except that power was vested in tbe circuit judge to name a person entirely independent of the wishes of the ■creditors, he announced that Irving M. Bean, a person reputed to be a close personal friend and business associate •of Mr. Plankinton, would be appointed as his successor, and without giving the creditors any opportunity to be heard in opposition to such appointment, though a request for such a hearing was made on their behalf, tbe appointment was made. Thereafter a request for tbe entry of a formal order making tbe attitude of tbe court in tbe matter appear of record was denied. The order appointing Mr. Bean was prepared by tbe attorneys for the old administration and signed July 15, 1899, but was not placed ■on file, nor were tbe attorneys for tbe creditors able to get access to it till July 21, 1899, when they discovered for tbe first time that tbe court finally determined that the question as to whether the petition of the creditors was signed by a majority of all tbe creditors of tbe assignor representing a majority in value of the debts against the assigned estate, was deemed not adjudicated, though it had been understood before and suggested by the judge that it was immaterial to his action whether the petition was representative of the wishes of the creditors as claimed by the petitioners or not, and that for the purposes of the proceedings it might be considered as sufficient in that regard.</p> <p>August 31, 1899, the petitioning creditors applied to the court to amend the order appointing Mr. Bean in accordance with the facts, that is, so that it would show that the petition which called for the appointment of a new as-signee satisfied the calls of the statute (sec.'1702), as the court considered it when the order was made, which application was denied after holding the matter till November 18, 1899, at which time an order was entered by the circuit judge allowing the ex-assignee, Mr. Plankinton, to file an answer to the petition for his removal, within ten days.</p> <p>November 24-, 1899, a verified petition, by and on behalf of the creditors of the bank, was presented to this court, setting forth all the foregoing facts and other facts to the effect that the appointment of Mr. Bean was, in effect, a continuation of the administration of Mr. Plankinton, and facts showing that irreparable mischief and wrong would be done to the creditors unless summary relief could be had for the alleged wrongs to them by denying their statutory right to an assignee of their own choosing to administer the estate of the bank under the supervision of the court for their benefit; that the change from Plankinton, assignee, to Bean, assignee, left the creditors as remediless as before, as to having any proper investigation of the doings, of Mr. Plankin-ton in the prosecution for the benefit of creditors of many matters that were hostile to him; that the preservation of the interests of the creditors required a radical and entire change of administration from one that had been carried on in the interests of the assignor and its officers, controlled and managed by its and their attorneys, to one in the interests of creditors under the advice of attorneys working solely in their interests. On such petition an alternative writ of mandamus was issued, reciting the substance of the petition and containing the following command: “We therefore command and require you, the said Demiel U. Johnson, that as circuit judge of the court aforesaid, you do forthwith, and within twenty-four hours after service on you of this our alternative writ of mandamus, vacate and wholly set aside the order bearing date July 18, 1899, aforesaid, appointing Irving M. Bean to succeed William Plankinton as such assignee, and that, instead thereof, you forthwith proceed to ascertain and determine whether said petition of creditors is signed by or on behalf of a majority in number of the creditors of the said assignor who represent a majority in value of the debts of said estate, and if such is found to be the fact, that you appoint as successor to William Plankinton, as assignee of The Plankinton Bank, the Henry Herman named in said petition unless he be unsuitable for such trust, or that, in the event of your failure to perform such acts or any of them, you show cause before our said supreme court on the 15th day of December nest at the supreme court room in the capítol of the state, at the opening of the court on that day or as soon thereafter as the matter can be heard, why a peremptory writ of ma/ndamms should not issue out of said supreme court requiring the same to be done; and have you then and there this writ.”</p> <p>To that writ the circuit judge made return as follows:</p> <p>“ I, Daniel JEL. Johnson, . . . answering and inaking return to said alternative writ, respectfully show, that the prior writ of mandamus referred to contained the-folio wing commands:</p> <p>“ £ Immediately after the receipt of this writ you, the said Damiel H. Johnson, circuit judge of the second judicial district of Wisconsin, do vacate and set aside the order dated June 9th, 1899, confirming the account of William Plankin-ton, assignee, filed July 1, 1899, and you exercise the jurisdiction vested in you as such judge and in such court to entertain and act upon a motion requiring such assignee to make and file a final account and report covering all the matters of his administration as contemplated and required by sec. 1101 of the Eevised Statutes, and that you accord to any creditor the right to file and have considered objections to such final account as provided by said section, and a full opportunity to examine the officers of said assignee under sec. 16935 of the Eevised Statutes, and opportunity to examine the assignee in regard to all matters concerning his administration of the assigned estate, and that you also vacate and set aside all orders entered by said circuit court or by you as judge thereof in any way interfering therewith.’</p> <p>“ This respondent has to the best of his judgment fully complied with the commands of said writ, both in letter and spirit; that orders for that purpose granting everything any attorneys of any creditors claimed under said writ were entered on the 12th day of July, 1899; that the orders furthermore accepted the resignation-of William Plankinton as assignee of said bank to take effect upon the appointment and qualification of his successor. At the same time there was a hearing as to the person to be appointed his successor. This 1 held for consideration.</p> <p>“ It was claimed by attorneys for creditors that amendments to an original petition for the removal of William Plankinton, which was filed after he had tendered his resignation, together with such original petition, had the signatures of a majority in number and amount of the creditors of the bank in favor of the appointment of Henry Herman as assignee. This claim was disputed and no application was made to have the petition and amendments investigated in that respect. In my judgment there was no occasion for such an investigation. I deemed it my duty to appoint an undoubtedly unexceptional person as assignee, a person who would know the duties of the trustee and be free from any interest or influence.</p> <p>■“ I was not satisfied that Mr. Henry Herman was the proper person. He had been buying up claims against the bank to a considerable extent. This and other facts known to me led me to the conviction that in the interests of all the creditors of said bank some other and entirely disinterested person should be appointed.</p> <p>“ I therefore of my own motion selected and concluded to-appoint Mr. Irving M. Bean, of whose integrity, ability and independence there is no doubt.</p> <p>“ The most prominent firm of attorneys, who had joined in said petition, informed me the next day that they were satisfied with the appointment. Mr. Bean entered upon his. duties with apparently general acquiescence. He had been in office over four months when this alternative writ was issued.</p> <p>“ If there is any charge or complaint that he has not done his full duty, it has not been brought to my attention.</p> <p>“ It is my deliberate judgment that the appointment was prudent and judicious, and ought to stand. I perceive no-possible view in which it can work injustice to any creditor.</p> <p>“I have for these reasons not vacated and set aside the order bearing date July 18, 1899, appointing Irving M. Bean to succeed "William Plankinton as such assignee.</p> <p>“ I beg to suggest that for obvious practical reasons said order, if vacated at all, ought not to be vacated until' another appointee is ready to be substituted. I beg further to report that an investigation as to whether said petitions were signed by or on behalf of a majority in number of the creditors of said bank, representing a majority in value of the debts of the same, is now in progress under the order of this court. The circumstances which led to such investigation are as follows: A motion was made by six creditors, through Mock and Wittig, their attorneys, pursuant to a notice dated August 31, 1899, to modify the order of July 18, 1899, in its-recital referring to the petitions for the removal of William Plankinton as assignee, which motion coming to a hearing was denied on the-- day of November, 1899. At the hearing of such motion the attorneys making the same claimed and insisted that unless said order was modified, they had a right to a trial and hearing upon said petitions; that the-same was necessary to make the record they desired for the-supreme court. I thereupon determined to give them such trial and hearing, and with that view, and for that purpose,, gave William Plankinton, who was absent from the city at. that time, ten days to answer the amended petitions, the-original petition having theretofore been put in issue by him; that the time was afterwards extended so as to expire December 5,1899. In the meantime on the 1st day of December, 1899, your alternative writ of mcmdamus was served on this respondent. On the 5th day of December, 1899, William Plankinton served and filed an answer to the-amended petition, and on the Ith day of December, 1899, I made an order of reference to Hugh Eyan, Esquire, court commissioner, at once to investigate and take proofs as to-said petitions, and as to whether or not the same were supported by a majority in number and amount of the creditors-of said bank; that said investigation was commenced before-said court commissioner on the 11th day of December, 1899, and has proceeded from day to day, and is not concluded.”'</p> <p>The petitioning creditors, by their attorneys, demurred to-such return for insufficiency, and prayed for the issuance of a peremptory writ of mcmdamus making mandatory the commands of the first writ.</p> <p>[N o briefs on file.]</p>

<p>Appeal from an or'der of the circuit court for Dane county: R. Gf. Sibbbckbb, Circuit Judge.</p> <p>The plaintiff brings this action, on behalf of himself and other taxpayers of the city of Madison, to restrain the defendant Dodge from collecting, and the city from paying to him, certain sums of money which it is claimed Dodge insists are due for services in superintending the construction of a system of sewerage in said city, and to recover certain sums already paid to him without any authority of law, the ground upon which the action is based being that such services were performed by the defendant while he held the office of city surveyor and engineer. A proper preliminary restraining order was granted. The defendants answered, and, upon the pleadings and certain affidavits, moved the court to dissolve the injunction. After a hearing in that regard, the court dissolved the injunction, and from the order so entered the plaintiff appeals.</p> <p>They contended, imter alia, that special provisions of a statute in regard to a particular subject will not prevail over general provisions in the same or some other statute, except in so far, and so far only, as there is necessary conflict between them. If their provisions can be harmonized, they will both stand, together and the special statute be held simply as cumulative to the general. State ex rel. Lutfring v. Gostze, 22 Wis. 363; Ha/ncoch v. Merriman, 46 Wis. 159; Mead v. Bagnall, 15 Wis. 156; Schieve v. State, 17 Wis. 253; Bernier v. Bernier, 147 U. S. 242; Chicago, M. c& St. P. R. Co. v. ü. S. 127 U. S. 406; Hutchinson v. Self, 153 Ill. 542; Bear ■trice Paper Oo. v. Beloit Iron Works, 46 Neb. 900; State ex .rel. Ghurchill v. Pay, 45 Neb. 321; Jackson v. Washington Oo. 34 Neb. 680; Lingonner v. Anibler, 44 Neb. 316; State ex rel. Berry v. Babcock, 21 Neb. 599; Hopkins v. Scott, 38 Neb. 661; Cincinnati v. Oonnor, 55 Ohio St. 82. All pro•ceedings of the sewerage committee, as well as the common council, promising, agreeing, or proposing to pay the city surveyor any sum in addition to his legally fixed salary for engineering services performed for the city are unlawful .and void; and all payments already made and all proposed to be made are without authority of law, and the latter may be restrained and the amount of the former recovered. 1 Dillon, Mun. Corp. (4th ed.),.§§ 230, 233, 234; Jones v. Orcmt Oo. 14 Vis. 518; Kewamiee Oo. v. Knipfer, 37 Vis. 496; Roomy v. Milwaukee Go. 40 Vis. 23; Doolcm v. Manitowoc, 48 Vis. 312; Willem J v. Oomstock, 58 Vis. 565, 576; State ex rel. Raymer v. Cwrmingham, 82 Vis. 39, 47; Frederick v. Douglas Oo. 96 Vis. 416; Quaw v. Raff, 98 Vis. 586; Buck ■v. Eureka, 30 L. R. A. 409; Evcms v. Trenton, 24 N. J. Law, 764. The customary violation of the plain language of the law gives no authority for continuing such violation, or, as •otherwise expressed, customary disregard of plain language does not furnish a rule to guide judicial construction. State ■ex rel. Weiss v. District Board of Edgerton, 76 Vis. 177,195; State ex rel. Rarymer v. Cunningham, 82 Vis. 39-50; Traveler's Ins. Oo. v. Fricke, 94 Vis. 258; Fulton v. Stevens, 99 Vis. 307.</p> <p>They contended, inter alia, that'the ■services in question were not within the official duties of the city surveyor, and though it be assumed that sec. 7, subch. Ill, ■of the charter (ch. 36, Laws of 1882), applies thereto, the ••surveyor is entitled to compensation therefor over and above his salary. Mechem, Public Officers, § 863; Tiedeman, Mun. Oorp. § 79; Evans v. Trenton, 24 N. J. Law, 764, 765, 768'; State ex ret. Seattle v. Oa/rson, 6 Wash. 250; Klemm v. New-a/rk, 61 N. J. Law, 112; XT'. S. v. Brvndle, 110 U. S. 688, 689, 693; Lea/venworth Oo. v. Brewer, 9 Kan. 308; 'Niles v. Muzzy, 33 Mich. 61; White v. East Saginaw, 43 Mich. 567; ILuffmcm v. Greenwood Oo. 23 Kan. 281; U. S. v. Ripley, 7 Pet. 18; Ü. S. v. King, 147 U. S. 676, 679; Eagle River v. Oneida Oo. 86 Wis. 266; Billings v. Oneida Oo. 98 Wis. 584; Massing v. State, 14 Wis. 502; Fernekes v. Milwaukee Go. 43 Wis. 303; Reif v. Podge, 55 Wis. 496. The council is not precluded from altering the compensation of the surveyor during Ms term of office, and hence may lawfully compensate him for the services in question, whether they be official or extra-official services. Nichols v. Holliday, 27 Wis. 406; Landis v. Lincoln Oo. 31 Oreg. 424; Gowdvn v. Huff, 10 Ind. 83; Milwaukee Oo. v. Hackett, 21 Wis. 613; State ex rel. Ma/rtin v. Hdlb, 50 Wis. 178; Frederick v. Douglas Oo. 96 Wis. 411; Koch v. Milwaukee, 89 Wis. 220. The services having been performed, the plaintiff taxpayer, having permitted them to be performed on the faith of compensation therefor, will not be aided by a court of equity to recover back the money paid, or to restrain the payment of the money due. Farmer v. St. Paul, 33 L. R. A. 199; Frederick v. Douglas Oo. 96 Wis. 411; Quaw v. Paff,\ 98 Wis. 586; Helms v. McFadden, 18 Wis. 191; Tash v. Adams, 10 Cush. 252; Ellsworth v. Rossiter, 46 Kan. 237; Eagle River v. Oneida Go. 86 Wis. 269; State ex rel. Schintgen v. La Grosse, 101 Wis. 208.</p>

Action on a life insurance policy. The right to recover turned on whether the assured committed suicide. At the ■close of the evidence counsel for defendant moved the court for the direction of a verdict, which was denied. There was a general verdict for the plaintiff, and a motion made and denied to set the same aside because not warranted by the evidence and for other reasons. The appeal is from the judgment rendered on the verdict in plaintiff’s favor.

<p>Appeal from a judgment of the circuit court for Ashland ■county: A. J. YiNJE, Judge.</p> <p>This is an action to set aside certain conveyances of real estate as fraudulent and void as to tbe creditors of the defendant Henry BrinJcer. The facts are, in brief, as follows.: The plaintiffs are the infant heirs of one Louis Brinker, deceased, intestate; the defendants are husband and wife. On the 6th of November, 1889, Henry BrmJcer, being indebted to the plaintiffs in the sum of $3,133, gave his notes for that sum to the plaintiffs’ guardian, secured by mortgage on certain lands in Ashland and Oneida counties, and certain lands in the city of Ashland, none of which are involved in this action. The plaintiffs’ guardian assigned a part of the notes to third persons, and retained a part thereof. The notes not being paid when due, the mortgage was foreclosed by the holders, the mortgaged lands sold, and a deficiency judgment rendered in favor of the plaintiffs on the-4th of October, 1893, for $1,384.16, which is still unpaid. Prior to the commencement of this action, execution was. issued upon such judgment, and returned unsatisfied. At the time of the execution of the mortgage Henry BrmJcer owned in severalty lots 1, 2, and 3, of block 107, in Ellis’s, division, city of Ashland, which was his homestead; also lot 14, block 54, in this division; also the S. W. ¿ of section 12, township 44, range 3, in Ashland county. Henry BrinJcer also owned at the same time an undivided half of lots 19 and 20, block 111,'of Yaughn’s division in the city of Ash-land, and the plaintiffs owned the other undivided half of said lots 19 and 20. On the loth of January, 1890, Henry conveyed to his wife, through a third person, without consideration, all of said property, to wit, lots 1, 2, and 3, block 107, lot 14, block 54, the S. W. \ of section 12, township 44, range 3, and the undivided half of lots 19 and 20, block 111. In May, 1890, partition proceedings were had in the county court of Ashland county, and commissioners appointed 'to partition said lots 19 and 20 between the owners thereof. The commissioners found and reported that lot 20 was worth more than lot 19 on account of a building thereon, and they awarded it to Sophia Brimker on payment by her of $1,000 to the plaintiffs, and they awarded lot 19 to the plaintiffs. The payment of $1,000 ’was made, and mutual deeds of release exchanged, in order to carry out the partition.</p> <p>Upon those facts the court decided that the deeds of Henry Brinker to his wife, and the conveyances by which the title of lot 20 was vested finally in the wife, were fraudulent and void as to creditors of Ilenry Brimiker, except as to lots 1, 2, and 3 of block 107, which constituted Henry Brinker's homestead, and that Sophia Brinker knew and participated in the fraudulent intent of Henry Brinker; and all of said conveyances were set aside as to creditors, and said lands declared subject to levy and sale upon execution upon the plaintiffs’ judgment. From this judgment the defendants appeal.</p>

<p> Trusts and trustees: Accounting: Disbursements of trustee. </p> <p>1. At the time of certain condemnation proceedings concerning lands belonging to plaintiffs resulting in a substantial award, the defendant, a trustee in respect thereto, had repudiated the trust which was afterwards established in this action and in which the trustee thereafter acquiesced. An accounting being taken, wherein the trustee was charged with the proceeds received by reason of such condemnation proceedings, and thereby plaintiffs had the benefit thereof, they are liable to the trustee for necessary disbursements that benefited or were intended to benefit the estate,</p> <p>2. In an accounting between a trustee and cestuis que trustent, the trustee cannot be charged with moneys received from one of the cestuis que trustent by way of a personal loan. -</p> <p>3. A trustee, while denying the trust and claiming all the property as his own, is in no position to charge the cestuis que trustent or their property with his own services, or that of his agents or attorneys, in respect to the property.</p>

E. Bailey, Circuit Judge. This is an action to recover damages for personal injuries •sustained by tbe plaintiff while traveling over a certain bridge in the city of Eau Glavre, which injuries were alleged to have been caused by reason of the want of repair ■of said bridge.

<p>Appeal from a judgment of tbe circuit court for Eau Claire county: James O’Neill, Circuit Judge.</p> <p>The complaint in this action alleges that the plaintiffs were the owners of certain lands (describing four forties), and that on October 1, 1893, and at other times thereafter, the defendant unlawfully entered thereon, cut and removed timber therefrom, and manufactured the same into lumber, to plaintiffs’ damage $15,000. The answer admits that plaintiffs were the owners of all of the lands described except one forty, described as S. W. £ of N. E. sec. 15, T. 42, E. Y. Denies wilful cutting. Admits entry on the land last described, and cutting 400,000 feet. Claims entry was in good faith, in the honest belief that it was the owner thereof under mesne conveyances from Henry W. Early and others, who made a cash entry of the same at the United States land office at Stevens Point, 'Wisconsin, on August 9, 18Y2. Sets out the receiver’s duplicate receipt in full. Admits that its contractor cut a few trees over the line on one forty, and some timber on another, in making a road, without its knowledge or consent. The defendant made a. tender of judgment for the cutting done on the S. W. £ of N. E. sec. 15 (being the forty which it is claimed was included in the receiver’s receipt) of $1,052.83, and for the cutting on the other land it tendered judgment for $40 besides costs. The tender was refused. The chief controversy on the trial was over the title to the S. W. J of N. E. -J, sec. 15.</p> <p>To establish title on the part of plaintiffs, they introduced in evidence a patent from the United States dated May 1, 1875, which recited: — certain provisions of an act of Congress approved June 2, 1858, entitled “An act to provide for the location of certain confirmed private land claims in the state of Missouri, and for other- purposes; ” that in conformity to said act the surveyor general of the United States for the state of Louisiana issued his certificate of location in full satisfaction of the unlocated and unsatisfied claim of James Groyne, entered in the report of James 0. Cosby, and confirmed by act of Congress approved March 3, 1819; and that it appeared that such certificate had been deposited in the land office at Wausau, Wisconsin, and had been located on the land described, in part satisfaction of the claim of. said James Goyne,— whereupon “the United States of America, in consideration of'the premises, and in conformity with the aforesaid act of Congress of June 2, 1858, have given and granted, and by these presents do give and grant, unto the said James Goyne or his legal representatives the tract of land above described" to have and to hold the same, together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature belonging, unto the said James Goyne or his legal representatives, and to his or their heirs and assigns, forever.” The plaintiffs further offered in evidence a certified copy of the original certificate of location, dated June 29, 1872, signed by the surveyor general, with a certificate of the acting commissioner of the general land office that it was receivable at any of the land offices of the United States except in certain states named, and that the patent, when issued, should be in the name of James Goyne or his legal representatives. On the back of the certificate of location was the following certificate:</p> <p>“ Office of the Surveyor General, District of Louisiana. New Orleans, August 31st, June 29th, 1872. I certify that, from the evidence filed in this office, W. T. Dugan is the legal representative of James Goyne, and as such is entitled to recover on this scrip. E. W. Fostee,</p> <p>“ Surveyor General, Louisiana.”</p> <p>In addition, the plaintiffs offered a transcript of the proceedings and record of the parish court of the parish of St. Helena, Louisiana, in the matter of the succession of James Goyne, deceased, from which it appeared that the land claim of Goyne was inventoried, appraised, and duly sold to W. T. Dugan, and duly confirmed by the judgment of the court. Plaintiffs then traced title to themselves from Dugan by mesne conveyances.</p> <p>In support of its claim defendant offered the receiver’s duplicate receipt before referred to, which was objected to on the ground that it appeared on its face to have been altered. After some discussion, ruling was reserved, and defendant offered proof that its grantors had paid taxes on the land for a number of years, commencing with 1873. Later in the proceedings the court announced that the receipt would be received in evidence on the question of defendant’s good faith in entering upon the land, and that he would reserve a ruling on its admission, as bearing on the question of title. No formal ruling on that question, however, was ever made.</p> <p>After considerable evidence had been offered on the subject of the cutting and the value of the timber, the court submitted a special verdict to the jury, who found substantially as follows: (1) That the timber cut and removed from the S. W. J of N. E. ■£, sec. 15, was 500,000 feet. (2) That the value of the timber as it stood on the land was $2 per thousand. (3) That the highest market price for the logs at any time while they were in the possession of the defendant was $4 per thousand. (4) That defendant acquired title, and entered on said forty, believing such title to be valid. (5) That defendant cut 24,000 feet of timber on the other lands. (6) That the value of such timber on the land was $48. (No question No. 7.) (8) That the plaintiffs were the owners of said timber. (Answered by stipulation.) (9) That the plaintiffs at the time of the cutting, and since', were the owners of the logs and lumber cut on the S. W. \ of N. E. ■£, sec. 15. This question was answered in the affirmative by direction of the court, subject to his opinion on the question of title reserved. (10) That the said receiver’s receipt was in the same condition with respect to alteration as when it was delivered to the parties therein named by the receiver of the land office.</p> <p>Upon the coming in of the verdict, plaintiffs made a motion, upon the minutes of the court and upon the affidavits of plaintiffs’ counsel and John J. Jenkins, to strike out quesftion 10 and its answer, or to set aside the answer and make a negative one, and to give judgment for the plaintiffs notwithstanding said answer, because it was against the evidence, or to grant a new trial on the ground of newly discovered evidence, inadvertence, and excusable neglect, as set forth in the affidavits. This motion was denied. The affidavit of Jenkins was to the effect that he had examined the original papers on file in the general land office at Washington, and that the disputed forty was not described in the receiver’s receipt or register’s certificate. Mr. James’s affidavit sets out that he had been given to understand by the officers of defendant that they had no title to the land in question, and that the actual title would be conceded in plaintiffs at the trial. He then set out certain facts tending to excuse the nonproduction of the records- of the land -office at the time. He attached to his affidavit a copy of the original application, to enter .the land covered by the ■receiver’s receipt offered in evidence, in which the tract covering the land in question was described as the N. •§■ of the N. E. ^ instead of the W. £ of the N. E. £ of section 15, and did not include the disputed forty.</p> <p>After the- denial of the motion for a new trial the court made findings of fact, in which he set out many of the facts hereinbefore stated, including the facts found by the jury and the facts as to the proceedings in the parish court of Uouisiana; and therefrom he concluded, as a matter of law, ■that W. T. Dugan did not become entitled to any part of the estate of James Goyne, and was not shown to be his legal representative by virtue of the proceedings in said parish court, and that plaintiffs had no title to said forties; that defendant is the owner of said land by virtue of the receiver’s receipt before mentioned; that the answer to question 9 should be changed to the negative; that the plaintiffs were the owners of the other lands described, and entitled to judg-ement for the value of the timber cut thereon; and judgment for plaintiffs for $62.40 was ordered. Exceptions to the finding were taken, and from the judgment so entered the plaintiffs take this appeal.</p>

<p> Demission of part of judgment after appeal: Mortgages: Foreclosure for instalments: Judgment: Practice: Material error. </p> <p>1. Where a judgment of foreclosure is entered, containing an erroneous • adjudication as to interest, the service and filing of a remission of all claim to interest in excess of that allowed by law ipso facto modifies the judgment as to the rate of interest, and no reversal is necessary.</p> <p>2. On foreclosure of a mortgage for instalments or interest before the whole mortgage debt is due, the provisions of secs. 3158-3160, Stats. 1898, require a judicial determination as to the situation of the premises with reference to their sale in parcels or as a whole, and the omission of such adjudication from the judgment is a material error.</p>

<p> Garnishment: Judgment for damages against plaintiff. </p> <p>"The proceedings by garnishment being wholly statutory, in the absence of a statute no judgment for damages, by reason of the garnishment, is authorized in favor of the defendant against the plaintiff.</p>

<p> Equity: Findings: Practice: Accord and satisfaction: Duress: Rescission of contract: Title to negotiable paper by assignment of mortgage. </p> <p>¡1. The proper practice in an equity case is for the trial court to make findings covering specifically and separately each material fact in issue.</p> <p>2. A controversy between two persons, actual and in good faith, is a proper subject for a binding contract of settlement, no matter ■ what may be the real merits of the claim upon either side.</p> <p>■15. In the circumstances stated in the foregoing proposition, a settlement, free from mutual mistake of fact or mistake upon one side and fraud upon the other, is binding between the parties thereto without regard to which gets the best of the bargain or whether all the gain be in fact on one side andf all the sacrifice on the other.</p> <p>•4. If, in making a contract, one party to the transaction be incapable of exercising his free will by reason of threats made by the other for the purpose of producing such condition, to the end that he may obtain such contract, such party may, at his option, repudiate such contract on the ground of duress.</p> <p>45. What constitutes duress is matter of law; whether duress existed in a particular transaction is matter of fact. There is no legal standard of resistance which a person acted upon must come up to at his peril of being remediless for a wrong done to him, and no general rule as to the sufficiency of facts to produce duress. The question in each case is, Was the person so acted upon by threats of the person claiming the benefit of the contract, for the purposes of obtaining such contract, as to be bereft of the quality of mind .essential to the making of a contract, and was the contract thereby obtained?</p> <p>6. The doctrine, that in order to produce duress by. threats there must be such threats as are reasonably necessary to control by fear the-freewill power of a person of ordinary firmness and courage, is not the true doctrine or the law of this state.</p> <p>7. While it is true that findings of fact requisite to avoid a contract on the ground of fraud must be based on clear and satisfactory, evidence establishing such facts, where the trial court decides in. favor of the existence of such facts on the evidence, such decision cannot be disturbed on appeal unless clearly wrong.</p> <p>8. One who takes title to a promissory note, payable to the order of a person therein named, merely by a transfer of the indebtedness-contained in the assignment of the mortgage securing such note, is not entitled to the benefits of the law merchant as to such note, but holds it subject to the equities that would affect it in the hands-of his assignor.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p> Logging lien: Instructions: Counterclaim: Accord and satisfaction: Principal and agent: Agent's authority. </p> <p>1. The facts that the defendant, the owner of logs, had contracted with plaintiff to drive them, and that the latter had a large force of men at work on the river on the first water in the spring of that year, being undisputed, a third person could not obtain a lien for driving them under sec. 3337, S. & B. Ann. Stats., on the ground that the owner had neglected or refused to make the necessary provisions therefor.</p> <p>3. Payment to a third party of any sum under such circumstances as makes it a proper setoff, or a matter of recoupment, is available as a defense, in whole or in part, to the plaintiff’s claim, but is in no sense a counterclaim.</p> <p>3. The defendant claiming that .his difference with plaintiff had been settled and compromised through negotiation with plaintiff’s son, it was not error to instruct the jury that, if the son only had authority to collect, the alleged compromise never became effective so as to bind the plaintiff, and to eliminate from the case all questions as to the apparent authority of the son, when it appeared that the defendant had never seen the young man before, made no inquiry as to his authority, had no knowledge as to the extent of his dominion over his father’s business, and was not deceived or misled to his prejudice by any assumption of authority on the part of the son.</p>

<p>Habeas corpus: Contempt of court: Refusal to comply with order for payment of money: Constitutional law: Due. process of law: Imprisonment for debt: Discharge in bankruptcy.</p> <p>1. In a suit in equity to foreclose a mortgage the court has jurisdiction to enjoin the defendant from collecting rents, and in case of a breach of that injunction has jurisdiction to punish him for contempt and also to require him to pay back the money wrongfully acquired by him. Whether or not the latter requirement is proper or wise depends on facts which are for trial and consideration by the court, and its decision thereon, while it might constitute error within its jurisdiction, is not reviewable on habeas corpus.</p> <p>2. A court of equity, in such a case, having exercised its jurisdiction and discretion upon the facts presented, and having ordered immediate payment of the money, has inherent power to either punish nonpayment or compel payment by commitment for contempt, and such power is also independently granted or confirmed in express terms by sec. 8479, Stats. 1898, providing for imprisonment on disobedience of an order requiring the payment of money.</p> <p>8. Where the court has judicially passed on the duty of a party to pay money, the purpose of the legislature, under sec. 3479, Stats. 1898, is to put the mere payment on a different ground from other acts, and to provide thereby for summary coercion of its payment, in addition to proceedings under the provisions in subd. 3, sec. 3477, and sec. 3491 and other sections of such statutes regulating the procedure for imposing punishment.</p> <p>4. Sec. 3479, Stats. 1898, is summary in itself, assumes that the party will theretofore have had his opportunity to show any cause why the peremptory order of payment should not he made, and authorizes an ex parte application for the arrest.</p> <p>5. Ability to comply with an order to pay money is not a jurisdictional fact necessary to be shown as a condition precedent to the exercise of the power given by sec. 3479, Stats. 1898. ></p> <p>6. Sec. 3479. Stats. 1898, contemplating a prior judicial determination at which the party may be heard, the fact that the final step for enforcement of that determination is without further notice is not a violation of the constitutional prohibition against depriving one of liberty or property without due process of law.</p> <p>7. Imprisonment for disobedience of an order to pay money, made, not because the defendant owed it, but because, after the court had sequestered it, he had wrongfully diverted it from the court's control, and thereby defied and insulted the court’s authority, and incidentally damaged the plaintiff pecuniarily, is not imprisonment for debt.</p> <p>8. A discharge in bankruptcy proceedings, while it may have discharged the bankrupt from liability to civil suit for money taken originally in defiance of an injunction, has not purged him of his contempt of court in taking it, ^ncL in refusing to refund it when ordered to do so. .</p>

<p> Railroads: Personal injuries: Negligence: Invitation to dangerous situation: Common carriers: Evidence: Special verdict: Instruction to jury: Immaterial error: Expert testimony: Hypothetical questions: Remarks of counsel. </p> <p>1. Where a brakeman assisted plaintiff’s little boy off one side of a car, and tendered his services to assist her off the same side, it must be regarded as an invitation to her to get off the car on that side and an assurance that it was reasonably safe for her to do so.</p> <p>2. Where plaintiff was a woman fifty-three years of age, weighing 216 pounds, under the circumstances of the case as shown by the evidence, the defendant’s brakeman was not in the exercise of ordinary care in inviting her to alight from the lowest step of the car upon frozen ground twenty-six inches below.</p> <p>3. The defendant, as a common carrier of passengers, was bound to provide plaintiff on her reaching her destination with a safe place to alight, and,’in view of her age and condition, to render her such reasonable assistance as to enable her, in the exercise of ordinary care, to alight from its train in safety.</p> <p>4. It is not error to allow plaintiff to give the circumstances under which the accident occurred nor to testify that she was a widow.</p> <p>5. It is not error to allow nonexpert witnesses, in the habit of associating with plaintiff, to testify,as to whether she appeared to suffer pain.</p> <p>6. The trial court is not bound to submit questions for a special verdict in the form requested by either party, and where the questions submitted cover all the issuable facts the statute is satisfied and the rights of the parties are protected.</p> <p>7. Submitting as a part of a special verdict a question as to whether the brakeman negligently pulled the plaintiff forward, and thereby caused her to lose her balance and fall to the ground, without any instruction in the charge as to what constitutes negligence, is not material error, where the questions of the special verdict cover the subject of proximate cause and indicate the standard of care for the negligence mentioned.</p> <p>8. It was competent for the medical experts, in answering a hypothetical question, to testify whether the impairment of the sciatic nerve— a condition proved to be present in the right leg — might have been produced by the accident and fall of plaintiff, where such question embraced all the facts which plaintiff’s evidence tended to prove, and no facts which such evidence did not tend to prove, and assumed the truth of all statements therein contained.</p> <p>'9. Where questions submitted as part of a special verdict call for determination whether a person of ordinary intelligence, acting as the plaintiff did, ought to have foreseen, in the light of attending circumstances, that injury was likely to result from her conduct; whether she was in the exercise of such care for her own safety as the majority of mankind would have exercised under the circumstances; and whether there was negligence on her part which naturally and probably contributed, in any degree, to her injury — it is not error to refuse to instruct the jury, as requested, upon the subject of contributory negligence, that subject being covered by the questions submitted.</p> <p>10. Where, if the defendant was guilty of negligence it was only by virtue of the negligence of its employee, and so of an interested witness, remarks of plaintiff’s counsel in effect that, when a man has a job depending upon the manner in which he gives his evidence, there is no tyranny like that of bread and butter, while of questionable propriety, do not constitute material error.</p>

Fish, Circuit Judge. This is an action for personal injuries, and the plaintiff appeals from a judgment of nonsuit. It appears from the evidence that the plaintiff was a passenger upon the defendant’s railway on the 3d day of September, 1895, and was riding upon one of the defendant’s trains from the city of Chicago to a station called Western Union Junction, in Ea-cine county, Wisconsin, on the afternoon of that day.

<p>Appeal from a judgment of the eirouit court for Kenosha county: Peaste M. Eish, Circuit Judge.</p> <p>Action to recover damages for breach of warranty on the following facts: Plaintiff, a farmer, by Martin L. Hoffman, Jr., his son, who wag duly authorized thereto, applied to the defendant, a country merchant who kept seeds for sale, among other things, to buy some rape seed. The business on the part of the defendant was done by one of his regular clerks. Mr. Hoffman asked the clerk if they had rape seed for sale. He replied in the affirmative, whereupon Mr. Hoffman said he would take twenty-five pounds. The clerk thereupon produced a sack of seed and weighed out the desired amount in Hoffman’s presence. Neither Hoffman, the clerk, the defendant, nor plaintiff knew rape seed from wild mustard seed, and each was wholly unaware of the ignorance of the others. Hoffman purchased the seed relying upon the fact that it was produced by the clerk and sold to him as what he called for. The seed was delivered at plaintiff’s farm and was there, either by him or by his authority, sowed upon his land. He did not examine the seed, and would not have been wiser if he had, as he was entirely unacquainted with the appearanqe of rape seed, as before indicated. He used the seed relying upon the fact that it was sold as rape seed. The seed was in fact wild mustard seed. It befouled plaintiff’s land to his injury. The facts stated were established by evidence, as was the damage to plaintiff, sufficiently to enable the jury, under proper instructions, to determine the truth in regard to plaintiff’s recoverable loss. A motion was made for a non-suit at the close of the evidence, which -was granted, and judgment was rendered accordingly.- Plaintiff appealed.</p>

<p>Appeal from an order of the municipal court of Racine county: D. IT. Flett, Judge.</p> <p>Defendant is the trustee under the last 'will of Jerusha Pendleton, duly probated in Ohio in 1892. By the terms of this will certain funds were placed in the defendant’s hands, to be invested and kept invested, and from the proceeds he was. to pay Charles N. and Louis R. Pendleton, ■her two sons, the sum of $250 each six months thereafter, ■and in case of the death of one without issue his share should descend to the other; but the trustee was not under obligation to pay over more than $250 each six months to the survivor. Charles N. died unmarried and without issue in 1895. In 1893 the plaintiff recovered a judgment in California against Louis R. for the sum of $422.53. In June, 1891, Louis executed and delivered to plaintiff a writing reciting the recovery of the judgment aforesaid, and his indebtedness thereon, and in which he assigned to plaintiff, ■out of the income bequeathed to him by his mother, “a sum •sufficient to pay said last named amount, as soon as it shall accrue in the hands of F. M. Knapp, of the city of Racine, . . . the trustee named in said will.” This instrument was presented to defendant, with a request that he provide for the payment of the sum stated out of the income of the funds in his possession. He refused to accept the instrument or to make any payments thereon, and has since paid to Louis, out of the funds in his hands, more than sufficient to pay the amount claimed by plaintiff. Thereupon he brought this action against the trustee and said Louis R. Pendleton, setting up the facts as stated, and asking that the trustee be restrained from paying over to Louis, that his claim be established as a lien upon the trust funds, that the trustee be called upon, to account for the income of the trust estate since he received notice of plaintiff’s assignment, and that he be compelled to pay over to plaintiff, out of the trust funds in his possession, a sum sufficient to satisfy the plaintiff’s demand. Pendleton answered, admittg the allegations of the complaint. The trustee demurred on the. grounds that the municipal court of Racine county had no jurisdiction, that the plaintiff had an ■ adequate remedy at-, law, and that the complaint failed to state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff appeals.</p>

<p>Appeal from a judgment of the circuit court for Racine county: Prank 1L Pish, Circuit Judge.</p> <p>A judgment of foreclosure and sale was rendered November 12, 1894, adjudging $1,109.18 to be due plaiutiffs for interest, costs, taxes, and solicitor’s fees, $831 to become due August 10, 1895, the same amount to become due August 10, 1896, and $14,681 to become due August 10,1897. The judgment provided that if the proceeds of the sale should be insufficient to pay the amount due at the time of the sale, a personal judgment for the deficiency should be rendered against the parties personally liable. A sale was made pursuant to the judgment. The report of sale was to the effect that it realized $4,672.53 over and above sufficient to satisfy all costs and expenses chargeable to the proceeds of the sale and the amount adjudged to be due when the judgment was rendered; that $831 had become due since the rendition of judgment, and that $13,850.50, and interest at the rate of six per cent, per annum from August 10, 1895, was to become due; and that if the surplus were applied upon the sum due and to become due there would be left a deficiency of $10,447.05. Such surplus was paid into court. March 25, 1898, after the entire indebtedness had become ■due, upon application of the plaintiffs to the court for judgment for the deficiency left after applying all the proceeds of the sale as set forth in the sheriff’s report of sale, judgment was rendered against the parties personally liable according to the original judgment,— Kinzie Avenue Heights Company and Pinkney Gr. Lewis. The Kinzie Avenue Heights Company appealed from such judgment.</p> <p>After the appeal was perfected the plaintiff Pachard died, and the cause was revived in the name of his executor, but the case is reported under the original title to correspond with the calendar and the opinion filed.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>Ejectment to recover possession of the east I feet of the south one third of quarter block 11, in the Nirst ward •of the city of Milwaukee, Wisconsin. Answer that the defendant’s ward, Heise, has been in the open, visible, notorious, and exclusive possession of said land, under claim of title exclusive of any other right, for more than forty-three years last past. The answer also sets up the twenty years limitation, as prescribed by sec. 4220, Stats. 1898. The jury found by special verdict, among other things, that plaintiff was the owner of the legal title to the disputed strip; that the defendant’s ward, Heise, was in possession, and had been for more than twenty years prior to the commencement, claiming title hostile to the owner of the legal title, which occupation had been continuous and exclusive of any other right, including the right of the plaintiff and his grantors. There was also a finding as to the location of a division fence by the adjacent owners with intent to make it a permanent line between them, which had been lived up to, and permanent improvements made with reference thereto and in reliance thereon. Plaintiff moved for a new,trial, and defendants for judgment in their favor. Judgment was finally entered in favor of the defendants, from which the plaintiff has appealed.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: Geo. E. Sutheelaed, Judge.</p> <p>One H. S. Mack, a wholesale clothing manufacturer and dealer, made a voluntary assignment on December 19,1894, thereby transferring to his assignee a stock of' goods inventoried at over $41,000, incumbered, however, by a number of mortgages, the first and second of which together aggregated $20,000, and the third of which was to plaintiff to secure an indebtedness slightly less than $4,000. The attorney for the first two mortgagees advertised in local and trade papers for private sale of the stock, and received no offer exceeding $17,500 cash. This was a disappointment to all parties, as it bad been expected tbe stock would be readily salable at an amount more than sufficient to coyer tbe first three mortgages.</p> <p>Tbe agent of tbe first and second mortgagees thereupon, explained tbe situation to tbe plaintiff; told her that, in bis opinion, there Was a large margin of value in the stock of goods above the price offered and her mortgage; and suggested to her that she secure some one able to purchase and dispose of the goods, who would pay a little more than the offer already received, and also tbe amount of the plaintiff’s mortgage. She went to the defendant, Zillmer, her brother-in-law, who was also engaged in the clothing business, and on whom she evidently relied for advice and assistance, and stated the situation to him. He, after investigating the stock and negotiating with the agent of the first two mortgagees, found that they would accept $18,000 in full of their interest, to be paid on time, as he could realize it out of the goods. Thereupon he agreed with her and the agent for the first and second mortgagees to make the proposed purchase, and to pay her the amount of her mortgage out of the profits above the purchase price, to which she assented j and, in pursuance of that agreement, the goods were conveyed to the defendant by the first and second mortgagees,, and he immediately proceeded to dispose of them in ordinary wholesale and jobbing trade, completing the manufacture of a considerable portion, which were at the time of the purchase only partially manufactured.</p> <p>In January, 1896, he gave to the plaintiff $915, which, together with $285 he had paid to or for her meanwhile, made $1,200, stating to her his hope that out of the- remaining remnant of the goods he might realize for her a total of $2,500, but demanding from her a receipt recognizing the payment, of the $1,200 as a gratuity. Thereupon she consulted attorneys, who demanded of him an accounting,— the goods having been substantially all disposed of,- — to which demand he responded by repudiating any liability to her whatever. Suit was commenced, alleging substantially the foregoing facts and agreement. Afterwards, on motion, plaintiff was allowed to amend the complaint by adding allegations to the effect that the purchase of the goods by the ■defendant was in the capacity of agent or" trustee for the plaintiff, but under the same agreement as to paying plaintiff out of the proceeds thereof the amount of her mortgage. The demand was for the recovery from the defendant of the balance due her on her note and mortgage, amounting at the time of the trial to about $3,100.</p> <p>The case was referred to a referee, who found the purchase of the goods upon substantially the agreement above stated, but held, as matter of law, that there was no consideration for the defendant’s promise to pay the plaintiff, and that plaintiff was not entitled to recover. He also stated an account finding that the defendant had received, over and above the $1,200 paid to the plaintiff, $9 in money, held uncollected accounts to the amount of $419.45, and had on hand a remnant of goods of the value of $220.89, being twenty-five per cent, of their inventory value of $883.63. Exceptions being alleged to these findings and conclusions' of law, the court adopted the findings of fact as to the making of the agreement and the acquisition of the goods, but held, as matter of law, that there was a' sufficient consideration, and that he was liable to the plaintiff for such profits as he had realized above the price paid and the expenses incurred in manufacturing and selling goods, to an amount not exceeding the balance due on her note and mortgage, and again referred the matter to a second referee to state the account in accordance with such decision. The second referee found that the plaintiff had received from the goods, either in money, or by the taking of goods into. his own stock, and disposing of them there at prices not disclosed by him, an amount exceeding the balance of the plaintiff’s note by about $1,000 at least. This report was adopted by the court, and judgment rendered in favor of the plaintiff for $3,169.85, from which the defendant appeals.</p>

<p> Negligence: Master and servant: Defective appliances: Special verdict: Instructions to jury. </p> <p>1. Plaintiff’s intestate was killed by the falling on him of a load in process of being raised by -defendant’s hoisting apparatus, the accident being occasioned by the breaking of an eyebolt that assisted in supporting the load. Held, that the submission as part of a special verdict of a question whether the proximate cause of the death of plaintiff’s intestate was the want of ordinary care in the construction of the eyebolt, or in the selection of the material for the same, while defective in form, was not prejudicial error in view of the answers of the jury to other questions, in effect, that the want of ordinary care in the manufacture was the proximate cause.</p> <p>2. In the absence of proof that a defective condition of the eyebolt arose from want of ordinary care in selection of the material from which it was constructed or in its construction, it is error to charge the jury that the mere breakage raised a presumption of negligence on the part of the defendant.</p>

<p>Appeal from a judgment of-the superior- court of Milwaukee county: Geo. E. SUTHERLAND, Judge.</p> <p>This is an action to recover damages for- alleged- false-representations claimed to have been made by the defendant to the plaintiff by reason of which the plaintiff was induced to purchase a certain mill site and dam in the town of Saukville, Ozaukee county, Wisconsin. The- complaint alleges that the plaintiff, on the 27th of January, 1891,. owned a homestead in the city of Milwaukee, worth $2,900,. and that thereafter the defendant, Bmaelcer, opened negotiations with the plaintiff, Krarnse, to exchange the said mill site and dam for said homestead, and represented that the-dam was in the best of condition, substantially made, and suitable for the purpose intended; that the parties went to> see the dam on the 27th of January, 1891, when the same .was covered with ice, so that an inspection thereof could not be made, and that Bmaelcer then repeated his- representations, knowing them to be false, and that the plaintiff, relying on the representations, exchanged his homestead for the said mill property, and also gave Bmaelcer a mortgage for $1,200 upon the mill property in consideration of the loan of that amount which BusaeTcer then made to Krause-for the purpose of making repairs upon the mill building, which had been recently damaged by fire. The complaint-alleges further that when the ice went out in the spring-Krcmse discovered that the dam was worthless; that he-(Krause) had no means, and could not procure any loam ■upon tbe property, and therefore could not reconstruct the ■dam, and was compelled to abandon the mill and the improvements; that Busaoher sold the mortgage for $1,200 upon the mill property to one Riemer, and that said mortgage was foreclosed, and the property purchased by Bu-saoleer, who toolc possession thereof, and sold the same to ■other parties. Judgment is demanded for the purchase money of said property, and also for the sum of $3,000 expended by Krause in material and improvements placed upon the property.</p> <p>■ The answer, in effect, denies the alleged misrepresentations, and alleges that the dam was in good condition.</p> <p>A special verdict was rendered in the action as follows: •“ (1) Did the defendant, as an inducement to the proposed trade with the plaintiff, represent to the plaintiff that the dam was the best dam there is? A. Yes. (2) If you answer the last question cYes,’ then was the representation untrue? A. Yes. (3) Did the defendant, as an inducement ■to the trade with the plaintiff, represent to the ¡fiaintiff that ■the dam was then in good condition ? A. Yes. (4) If you answer the last question ‘ Yes/ then was such representation untrue? A. Yes. (5) If you answer the first and third ■questions, or either of them, ‘ Yes/ then did the defendant make such representation with the intent that the plaintiff, in making the trade, should rely upon the same as true ? A> Yes. (6) If you answer the first and third questions, or either of them, ‘Yes/ then did the plaintiff believe such representation to be true ? A. Yes. (1) If you answer the first and third questions, or either of them, ‘ Yes/ then did the plaintiff, in making the trade, rely upon such representation as true ? A. Yes. (8) If you answer the last question ‘Yes/ then ought the plaintiff, in the exercise of ordinary care and prudence, as an ordinarily intelligent man, to have relied upon such representation as true ? A. No. <(9) If you answer the first and third questions, or either of them, ‘Yes,’ then, did the plaintiff have any knowledge or information of the actual character and condition of the dam, other than the defendant’s representation concerning the same, upon which he relied in making the trade ? A. No. (10) At the time the plaintiff and defendant visited the dam on or about January 20, 1891, was the dam so covered by water and ice that with the use of reasonable diligence the plaintiff could not make a personal examination of the same, and ascertain its actual character and condition ?, A. Yes. (11) If you answer that the defendant made any untrue representation to the plaintiff concerning the dam, upon which the plaintiff relied, then how much less was the mill property worth at the time the trade was consummated than it would have been worth had it been as represented to be by the defendant ? A. $50. (12) If you answer that the defendant made any untrue representation to the plaintiff concerning the dam, upon which the plaintiff relied, then did the plaintiff expend money in improving the mill property on account of such reliance upon the defendant’s representation? A. Yes. (13) If you answer the last question ‘Yes,’ then how much money did the plaintiff expend in making improvements, before he found out, or ought to have found out, that such representations were untrue ? A. $450.” .</p> <p>On motion the court struck out the eighth finding of the verdict as immaterial, and rendered judgment for the plaintiff for the sum of $500 and costs, and the defendant appeals.</p>

<p> Judgments: Setoff: Priority: Attorney’s lien. </p> <p>1. An application by a judgment debtor to apply bis judgment upon that of his judgment creditor is addressed to the sound discretion of the court, and is governed by equitable principles, and where the judgments are in actions having no connection-with each other, the equitable lien of the attorney for the judgment creditor is superior to the right of the judgment debtor.</p> <p>2. In such case, when a bona fide assignment is made before the right of setoff attaches, the two judgments being in different actions and relating to different matters, the assignment will prevail, especially where the assignee is equitably entitled to the benefit of the cause of action without assignment.</p> <p>•3. Where the owner of property unlawfully converted by defendant assigned the cause of action thereon to his mortgagee, who prosecuted the action to judgment, on motion to offset against said judgment others held by defendant against the assignor, but arising out of separate causes of action, the assignment, being prior in time, takes precedence of the right of setoff.</p>

<p> Action by stockholder against corporate officers: Fraud: Practice: Exclusive action. </p> <p>1. In an action against the directors of an insolvent corporation for fraudulent misappropriation and loss of its funds, the mere fact that plaintiff is suing as a stockholder is no reason why the action cannot be maintained.</p> <p>2. Where the affairs of an insolvent corporation are in the hands of the court in a winding-up proceeding, no stockholder can maintain an independent action to enforce rights of the corporation against' defaulting officials, until the court has refused to direct the receiver to take proper steps in that regard.</p>

<p>Appeal from a judgment of the circuit court for Rock county: John R. Bennett, Circuit Judge.</p> <p>This is an equitable action brought to set aside certain paving assessments against the plaintiff’s property, in the city of Beloit, and also certain improvement bonds issued upon such assessments. The city of Beloit was a city organized under a special charter prior to the passage of the general city charter law. On the 2d of July, 1895, the common council of the city, by an ordinance which was passed with all due formality, attempted to adopt certain parts of ch. 326, Laws of 1889, as amended by ch. 312, Laws of 1893, and ch. 320, Laws of 1895, being what is known as the general city charter law. Said ordinance included, among other provisions, secs. 172, 173, and 175 to 200, inclusive, of said general city charter law; the sections so adopted being those sections relating to public improvements, and the levying of assessments therefor. By the terms of said ordinance, the sections so adopted were adopted in lieu of the provisions of the special charter of the city upon that subject. In the year 1896 the common council, acting under the provisions of the general charter law so formally adopted, caused to be graded, curbed, and paved certain streets in said city, including Bridge street, and made assessments therefor against the adjoining property, and issued improvement bonds therefor. Such proceedings were in all respects regular under the provisions of the general city charter law, but were not in accord with the special charter provisions, because no petition for such paving was ever made. It appeared that in 1868 and in 1883 said street had been constructed to conform to the grade then existing, and graveled, as required by the common council, and that special assessments had been made therefor against the plaintiff’s property, and had been paid; the said property so assessed being the same property against which the assessments now complained of were made. The court found the assessments valid, and the plaintiff appealed.</p> <p>Counsel for the appellant contended, inter alia, that the common council did not, perforce of its adoption of the ordinance, acquire' power to act under the provisions of the general city charter law in question, for the reason that sec. 267, ch. 326, Laws of 1889, as amended by sec. 72, ch. 312, Laws of 1893, and sec. 1, ch. 320, Laws of 1S95, is unconstitutional. State ex rel. Haswell v. Oram, 16 Wis. 343, 345;. Dowling v. Lancashire Ins. Go. 92 Wis. 63; Stevens Point B. Go. v. Beilly, 44 Wis. 295, 300, 301; Smith v. Sherry, 50 Wis. 210; Johnson v. Milwaukee, 88 Wis. 383; Boyd v. Milwaukee, 92 Wis. 456; Btmiham v. Milwaukee, 98 Wis. 128, 135; State ex rel. Ghilds v. Copeland, 66 Minn. 315; La/rcom v. Olinf 160 Mass. 102; 1 Dillon, Mun. Corp. (4th ed.), §§ 45,46. Sec. 72, ch. 312, Laws of 1893, and sec. 1, ch. 320, Laws of 1895,. are unconstitutional in that they attempt an unauthorized delegation of legislative power. State v. Oopeland, 66 Minn. 315; In re North Milwaukee, 93 Wis. 616; State ex rel. Adams v. Burdge, 95 Wis. 390.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: James J. Dick, Circuit Judge.</p>

<p> 'Contracts: Consideration: Damages: Highways: Pleading: Cause of action. </p> <p>1. A contract between the defendant and the plaintiff town whereby, among other things, the former was to build three highways of the town, and keep them in repair so far as they might be damaged from flooding from a certain dam, in consideration of the withdrawal of certain suits and the relinquishment of all claims for damages, is not such as is contemplated by sec. 1236, S. & B. Ann. Stats, (providing that the supervisors, if so instructed at an annual town meeting, may let by special contract, to the lowest bidder, any and all highways of such town to be kept in repair for a term not exceeding five years), but is based on a sufficient consideration, and is valid and enforceable where it is shown that the town’had performed its part of the contract and had sustained actual damage by defendant’s failure to comply with its stipulation to repair.</p> <p>■2. Such an agreement will not support an action by the town against the owner of the dam to recover the estimated cost of needed repairs to said roads because of flooding from said dam, before the town has incurred any expenditure for the making of repairs, or sustained any liability, resulting from its duty to the public to keep its highways in a reasonably safe condition for travel.</p> <p>Z. Qucere, whether, in such cases, notice of the injury to the road and a request to repair are necessary.</p>

<p>Appeal from, a judgment of tbe circuit court for Ashland county: JohN GoodlaNd, Judge.</p> <p>In 185Y the owners of j;he land covering the street in eon-troversy platted the same, and filed and recorded suck-plat in the proper register’s office. The street in question •was named Madison avenue. In 1887 the common council of Ashland changed its name to Fourth avenue "West. According to the scheme of the plat, the streets running parallel with the shore of the bay are called “streets,” — the-first being named Front street; the second, Second street,, and so on in numerical order, extending back from the bay. The streets running at right angles with the streets aforesaid are called “avenues.” 'Madison avenue, now known as Fourth avenue West, runs in a southerly direction from the bay for nearly one and one-half miles, and connects the residence with the business portion of the city. That portion of Fourth avenue West more particularly in question in this action lies between Third and Sixth streets. That-portion of Fourth avenue between Front and Third streets, prior to 1890, had been graded and planked, and generally used for street purposes. That portion lying to the southward of Sixth street had also been graded and improved prior to said date. Prior to 1892 that portion of Fourth avenue between Third and Sixth streets had never been improved. During that year the city caused a sidewalk to be built on the east side of Fourth avenue from Third to Fourth street, and the west side of said avenue from Fourth to-Sixth street, which was used by pedestrians as they saw fit. The railroad track of defendant enters the city limits on the east, and extends westward across and over Fourth avenue between Third and Sixth streets. The Northern Pacific and Wisconsin Central Railroads also have tracks running parallel with defendant’s on the north. Early in 1896 the defendant and other railroad companies removed said sidewalks. They were replaced by the city and maintained until February, 1897, when they were again torn up by the-companies, and a fence erected across said avenue between Fourth and Sixth streets, completely obstructing it. The city brings this action to compel the defendant to remove the fence and restore tbe sidewalk, and asks an injunction restraining the defendant from obstructing the avenue.</p> <p>The defendant set up, and the court found, that in the year 1860 the owners of the plat presented a petition to the county board, asking for a vacation of a portion of said plat including the part involved in this suit, and by resolution the board attempted to vacate it; that after the date of said resolution, and for about 'twenty years, the proper officials assessed said property as acreage property; that said street, between the north line of Sixth street and a point halfway between Third and Fourth streets, was never worked or traveled by teams; that prior to the organization of the city of Ashland the town authorities erected a hose house between Third and Fourth streets, in the limits of Fourth avenue; that prior to 1881 the Milwaukee, Lake Shore & Western Eailway Company, to whose rights the defendant succeeds, laid its tracks across Fourth avenue, as before stated; that in said year said company and the other railway companies mentioned entered into a contract in writing with the city whereby it was agreed that the city should take the necessary steps to vacate that part of Fourth avenue lying between the north line of Sixth street and a point halfway between Third and Fourth streets, and in consideration of such vacation the railroad companies agreed to defray the expense of grading and constructing an under-crossing on Yaughn avenue, being the next street west of Fourth avenue, and to pay the expenses of a box culvert to drain a street; that the said Lake Shore Company paid its proportion of said expenses to the city (shown by the evidence to be $782.97), and performed all the stipulations of its said agreement; that on December 1,1887, the.city passed an ordinance in form vacating said part of said avenue. This ordinance was conceded to be invalid because of failure to observe charter regulations. The seventh finding is to the effect that said company, relying upon the action of the county board in 1860 and of the common council in vacating said street, laid out and expended large sums of money in the construction of its yard, and in building an iron bridge over Yaughn avenue, and in paying the expenses of excavating said avenue and constructing said box culvert. On June 26,1888, the council passed an ordinance repealing the ordinance of December 1st, and thereafter constructed the sidewalks before mentioned. The money paid to the city by the Lake Shore Company was riot paid until after the repeal of the ordinance attempting to vacate the street.</p> <p>The trial court decided that the city was estopped, under the circumstances, from claiming that the part of the street in question was not vacated, and entered judgment dismissing the complaint. Due exceptions to the findings were filed. The plaintiff appeals from the judgment.</p>

<p> Municipal corporations: Ordinances: Evidence of regularity of adoption: Amendment of charter: Publication of notice: Amendment of pleading: Prejudicial error. </p> <p>1. A book, the title page of which read “ Charter of the City of Merrill, Lincoln County, Wis., 1894,” containing a series of ordinances, but no declaration in or upon, and as a part of, it that its publication was by reason of some competent authority, is not, under sec. 4137, Stats. 1898, conclusive evidence of the regularity of the adoption and publication of an ordinance attempting to amend the city charter by adopting parts of ch. 326, Laws of 1889.</p> <p>2. Where notice of a proposed adoption of parts of the general city charter law (ch. 326, Laws of 1889, as amended by sec. 72, ch. 312, Laws of 1893) — providing that notice of the time when an ordinance, proposing to adopt a part thereof, will be considered shall be published once a week for three successive weeks, before action ■thereon by the common council — was published less than three weeks before the day specified therein, the proposed ordinance, when adopted, wholly fails to effect an amendment to the city charter.</p> <p>3. Error, if any, in allowing an amendment to the ad damnum clause of the complaint in an action against a city to an amount greater than the claim presented to the city council, is not prejudicial, where the verdict and judgment are for less than the amount of the claim presented.</p>

<p>Appeal from a judgment of the circuit court for Kenosha county: FRANK M. Fish, Circuit Judge.</p> <p>It appeared upon the trial that from an early day — before the memory of any of the witnesses, which ran back as far as 1843 — a traveled road existed, known as “ the Ke-nosha and Lake Geneva road,” also as the “ Bullin’s Bridge and Lake Geneva road,” coming two or three miles from the eastward, and crossing a creek át the northeast side' of Power’s Lake, in Kenosha county, running thence northwesterly to a point in the county line, being the west line of section 7, township 1 N, range 19 E., at a point about ten chains south of the quarter stake. The north shore of Power’s Lake is a few rods south of the section line between sections 18 and 7, which is the present town line between the town of Wheatland and the town of Randall, in Kenosha county. The defendant has occupied a space, partly in section 18 and partly in section 7, and extending from said road to the shore of said lake, a distance, as occupied, of about ninety feet on the westerly line and about sixty feet on the easterly line, a portion of which is claimed by the town to be part of the highway. Its corners are designated on plat as E., F., G., H. In a duly authenticated record book of the county of Hacine, of which Kenosha was then a part, there appear, following a meeting of the board of county commissioners, on April 8, 1840, surveys of several roads, among others a road corresponding substantially with the course of the traveled road in question; but the book contains no record of the adoption of said road by the county commission ers nor of the submission of any report of viewers with reference thereto. This was adopted into the highway records of Kenosha county, which was erected out of Eacine county in 1850. It appeared that fences were built certainly prior to 1850, and by one witness carried back to 1846 or earlier, corresponding substantially with the road described in that survey, and that the town officers recognized and worked it from a very early day. It also appeared that in the autumn of 1840 the county commissioners of "Walworth county recognized this highway as laid out by laying out a road extending from its terminus to Lake Geneva, and describing the starting point as a place on the county line at the terminus “of a highway recently run from Bullin’s Bridge.” It appeared also that in 1894 the town of "Wheat-land, at a point a ferv rods northwest of the premises in question, recognized the lines of that highway as surveyed, and corrected deviations of travel therefrom. It was also shown that the court house of Bacine county burned in 1861, and that many of the papers Avith reference to ancient highways could not be found. The record book in question showed' that the first two or three years of the existence of Bacine county, commencing in 1838, there was great activity in the laying out of highways, great numbers of petitions being filed, and great numbers of surveys of highAvays being recorded. The first instance in said record book where a survey of a highway is recorded occurs under the following circumstances: In the record of the meeting of commissioners it is stated that two specified highways Avere adopted. Immediately following the record of the meeting is recorded survey of those highways in exactly the same form as the survey of the highway in question. Thenceforward a majority of the meetings of the board of commissioners are immediately followed by the record of surveys of one or more highways in exactly the same form as those following the first meeting, but with no entry in the record of the meeting itself of any action with reference thereto. These records are entirely indiscriminate in form; some of them indicating a signature by a surveyor, some indicating an accompanying report of viewers, and some of them without either. Except for such records, there is no record of the adoption or laying out of any highway during the period Avhile the subject was under the control of the county commissioners. Among the highAvays thus recorded are many of the best known and most important highways in Racine and Kenosha counties, and among the six which are recorded together, including the one in question, following the meeting of April 8,1840, is the main street of the city of Racine, extending from the public square northward to and across the river, upon which were located all the early business buildings of that city, and on which is now located the city hall.</p> <p> </p> <p>Upon the accompanying diagram the lines WX and TZ indicate the location of the highway, as so recorded, past the property in question.</p> <p>At an early day, and apparently about 1846, the owner of the land in question, together with a considerable tract to the north and west of it, and which lay on both sides of the road, ran a fence on the north side very nearly approximating a line two rods from the center of the road according to said survey. Afterwards he laid a fence, irregular in course, along the southerly side of said highway, which, to the northwestward of the parcel here in question, deflected some distance southerly from the surveyed line in order to accommodate a deflection of the travel made necessary by a slough impinging on the northerly side of the highway as surveyed. After thus deflecting, the fence returned more nearly toward the surveyed line, and reached a point indicated by the letter “A” upon the diagram,, where there is a tree which stands about ten feet south of the line of the highway as surveyed. Erom that point the-course of the fence to the lake is indefinite, and seems not-to have followed any line, but to have continued southeastward and southerly. The land at that point was brushy and: sandy. In 1861 and 1868, one Benson, having become the owner of the land on both sides of the road, rebuilt the fence-along the southerly side of the road by post and board fence,, but, instead of following the curve of the old fence around to the point “ A,” he ran it more to the southward and direct to the lake; and he testified, without dispute, that he did so, not with the intention of dedicating, but in order to save fencing, as the land there was sandy and worthless for pasture, and by thus running straight down to the lake, instead of following the curve of the old fence, he saved about four lengths of fence. Meanwhile the fence on the northerly side of the road had been changed from time to time in places. At the point of the slough or marsh in question it was moved southerly two or three times, in order, as the person moving it testified,, to make a better - path for cattle inside the fence. Later it was moved still further southward, pretty much its- whole, length,, which is explained by the then tenant of the- farm, who made the change, by the-fact that he understood the road was- a three-rod road, while,the old fence was- adjusted to a four-rod;</p> <p>Upon the accompanying diagram the dotted line south of the surveyed highway lines, from B to A and onward, indicates approximately the line of the old rail fence existing prior to 1868, and so old at that time that another fence was substituted for it. Its location is not definite, except that from the point B it extended past the tree (A) just about ten feet south of the highway line, and thence southeastward through the present location of defendant’s shed, which is located in the northeast corner of the premises claimed by him, and thence to the lake. The line from B to D represents the post and board fence built by Benson in 1868. Some time about 1818 a tenant of the premises discarded the fence from C to D, and built a fence from C directly south to the lake. The point C is the initial point adopted by the circuit court in describing the south line of the highway as adjudged. About 1895 the defendant, having purchased the premises above mentioned, built a house facing the lake, which extended northward approximately to the town line. He built a picket fence about five feet southerly from the line of the highway according to the recorded survey, and in the northeast corner of his premises built a wagon shed, the northeast corner of which is about one foot south of the picket fence and approximately on his east line. The court found that for more than forty years there had existed a highway dedicated and thrown open to the public by the owners of the property on both sides thereof, and that the south line of said highway commenced at the point C, and extended along the line of the board fence of 1868. He made no finding as to the line of the highway southeastward from the point C. He accordingly found that the cottage extends about thirty feet into said highway, that the picket fence and shed are wholly within said highway, and that said structures constitute an obstruction of the highway, and prevent the public from traveling over the same. It should be noted that of the picket fence only about sixteen feet is south of the town line so as to be within the town of Randall. It further appeared that in 1894 one McGarry, then owning the Rovel-Mad premises and other property to the westward, had some controversy with the town of "Wheatland, as a result of which they agreed with him upon a line for the southerly side of the highway in accordance with the picket fence above described, and three or four feet southerly from the line, according to the survey, on condition of his grading a suitable track across the slough, which he accordingly did, and adjusted his premises to the line so agreed upon. The preponderance of the evidence establishes that the general course of travel northerly of the Rovelstad premises has extended over the space between the present picket fence and the fence on the north side of the street, but the 'general course thereof has been such that the picket fence impinges thereon about three feet, and that, after passing the point A, the old line of travel deflected southerly from the surveyed line in order to pass around the slough, which was impassable until 1894. There is evidence of occasional travel •turning from the surveyed line and. passing southerly of the tree A. No work has ever been done on the highway opposite the Rovelstad premises, the soil there being sandy and gravelly, so as not to require working as much as other parts of the road. Other parts of the highway have been worked by the town authorities.</p> <p>The court rendered judgment enjoining defendant to remove all structures from the premises north of the line BO, from which judgment defendants appeal.</p> <p>They contended, inter alia, that an ancient record, found in proper custody, having the appearances of genuineness and of being made at the time it purports to have heen made, is accepted as proof without other authentication, and it is presumed therefore that every preliminary act required to entitle such record to be made was legally and' properly done. Webster v. Boseawen, 67 N. H. Ill; Willey v. Portsmouth, 35 N. H. 303; State v. Alstead, 18 N. H. 59-; Paywa/rd v. Bath, 38 N. IT. 179; Enfield v. Ellington, 67 Conn. 459; Aldrioh v. Griffith, 66 Yt. 390; Dodge v. Briggs, 27 Fed. Rep. 160; Stats. 1898, sec. 22165/ MeGlaskey v. Barr, 47 Fed. Rep. 154; Lessee of Wan'd v. Barrows, 2 Ohio St. 241; Bank of U. S. v. Dandridge, 12 Wheat. 64; Santcma L. S. dk L. Go. v. Pendleton, 81 Fed. Rep. 784; Pendleton v. Shaw, 18 Tex. Civ. App. 439; Applegate v. Lexington <& O. G. M. Go. 117 U. S. 255; Bell v. Brewster, 44 Ohio St. 690. In the acquisition of a highway by prescription, the user must be adverse and under claim of right, and not merely permissive. Elliott, Roads & S. 137; Pmtlamd v. Keep, 41 Wis. 490; Gentlemen v. Soule, 83 Am. Dec. 264; Ma/nrose v. Parker, 90 Ill. 581; State v. Welpton, 34 Iowa, 144; State v. Schilb, 47 Iowa, 611. User and fencing-out would not make a highway by dedication, in the absence of express proof that there was an intention to set up a new or different highway from that established by a recorded survey. Elliott, Roads & S. 92, 97,120; 5 Am. & Eng. Ency. of Law, 398, 400-404; State v. Welpton, 34 Iowa, 144, 147; Ma/nrose v. Pa/rker, 90 Ill. 581; Ayers v. Beidel, 84 Wis. 283. When the situation of land is such as to indicate that it does not form a part of the way, although it may be alongside of the way, and may be used by the public, no dedication can be presumed, without strong evidence of an intent to devote the land to the use of the public. Elliott, Roads & S. 131; Gowero v. Philadelphia Exeh. Go. 40 Am. Dec. 489; Biddle v. Ash, 2 Ashm. 211; Griffin's Appeal, 109 Pa. St. 150; 9 Am. & Eng. Ency. of Law (2d ed.), 40, note; Pozéll v. Andrews, 103’ N. Y. 150; Quinn v. Anderson, 70 Cal. 454; Wheatfield v. Grundmann, 164 Ill. 250; Omaha v. Pawver, 49 Neb. 1; Polly Grove v. Smith, 63 Ark. 5; De Grillecm v. Frawleyr 48 La. Ann. 184; Tukoiler v. Kendall, 113 Ala. 664; Ottawa■ v. Yeutzer, 160 Ill. 509; Steinauer v. Tell Oily, 146 Ind. 490; Baker v. Squire, 143 Mo. 92; 9 Am. & Eng. Ency. of Law (2d ed.), 36, 38; O'Connell v. Bowman, 45 Ill. App. 654.</p> <p>They contended, inter alia, that the record of the highway was not admissible in evidence as an ancient document, without authentication, and being admitted did not prove the laying out on the line described therein. Elliott, Eoads & S. 293, 294; Williams v. Giblim, 86 Wis. 147; JDunstan v. Jamestown, 7 H. Dak. 1; Preseott v. Beyer, 34 Minn. 493; Dolphim, v. Pedley, 21 Wis. 469; JMeKee v. Hull, 69 Wis. 657; Meegan v. Boyle, 19 How. 130; Fell v. Young, *63 Ill. 106; Boyle v. Chambers, 32 Mo. 46, 64; lau v. Mumma, 43 Pa. St. 267-274; Merrill v. Kalamazoo, 35 Mich. 218. When it appears that the public have for more than twenty years continuously occupied the land in question as a highway, without any evidence that such use was permissive only, the presumption is that the use was adverse from the beginning. Ccvrmody v. Mulrooney, 87 Wis. 552; Wilkins v. Nicolai, 99 Wis. 178; Nelson v. Jacobs, 99 Wis. 547-559; Wollman v. JRuehle, 100 Wis. 31; Meyer v. Hope, 101 Wis. 123. Defendants are estopped by the conduct of their grantors in fencing out the strip in question and permitting the public to use it as a highway without question for more than twenty years. Cunningham v. Hendricks, 89 Wis. 632; Reuter v. Lowe, 94 Wis. 300.</p>

<p> Corporations: Incorporation: Failure to comply with statutory requirements: Partnership: Inability of organizers: Estoppel:- Evidence. </p> <p>1. Under sec. 4, ch. 113, Laws of 1874 (providing that articles of incorporation shall be signed by the'persons forming the-corporation, and “a copy thereof, verified under oath ” by two or more of the persons signing the same as being a true copy of the original articles of corporation, shall be recorded in the office of the register of deeds), the recording of the original articles of incorporation, in-lieu of such verified copy, is not such a compliance with the statute as will enable the incorporators to avoid liability to creditors of the corporation as copartners, unless such creditors dealt with them, as a corporation, in which case they would be estopped to claim against them as copartners.</p> <p>2. In the absence of bad faith, when signers of'articles of organization organize, hold meetings, elect officers, etc., as a corporation, and the-corporate existence is not challenged by the state, the steps taken-are sufficient to create them a de facto corporation, and give them rights as such as to all persons with whom their dealing was mutually understood to be in that, capacity.</p> <p>3. Where organizers of an alleged corporation have failed to comply with one of the express conditions of incorporation, evidence of representations by the person in charge, who conducted the business with plaintiff, that the dealing was not with a corporation, but with a copartnership, is admissible.</p>

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

<p> Partition: Cotenancy: Estates in remainder. </p> <p>Under sec. 3101, Stats. 1898, no one can enforce partition unless be has an estate in possession as one of the cotenants thereof; hence the owner in fee of an undivided seventh, and of a life, estate in the remaining six sevenths, cannot maintain partition against the owners in fee of said remaining six sevenths, subject to plaintiff’s life estate therein.</p>

<p>Appeals from orders of tbe circuit court for Milwaukee-county; D. II. JohksoN, Circuit Judge.</p> <p>Appeals from orders overruling separate demurrers to the-complaint, each grounded on the proposition that such complaint states several causes of action that cannot be properly joined. The complaint, by appropriate allegations, sets forth that each of the plaintiffs is a creditor of the defendant corporation, the George G. Cribb Company; the amount of the indebtedness as to each; that the action is brought in behalf of the plaintiffs as creditors of such corporation and of all persons similarly situated; that, after the indebtedness mentioned accrued, the officers and directors of the corporation, named as defendants, in breach of their duties as such to-the corporation, wasted and misapplied its assets and converted the same to their own use and to the use of the defendant corporation, the Cribb Carriage Compmvy, which last-named corporation is alleged to have been formed by such officers and directors in aid of a scheme formed by them to remove the assets of the George C. Cribb Company, without consideration, from its control and beyond the reach of its creditors, which scheme was carried out, leaving the debtor corporation wholly insolvent. All the various steps-resorted to, to effect the scheme above stated, are set forth in the complaint, together making a good cause of action in equity at the suit of creditors, against the officers of the-George C. Cribb Company and the corporation and persons ■who fraudulently obtained the property of such company as ■alleged, or some part thereof, to set aside the alleged fraud- ■ ulent transfers and compel an accounting by such officers of their official management of the affairs of the corporation ■so far as necessary to protect the plaintiffs as creditors and protect all other persons similarly interested. The complaint contains a prayer for relief to that effect, and, in addition, for judgment against the George 0. Cribb Company in favor •of the South Bend Chilled Plow Company for the amount •claimed to be due to it, and similar judgments in favor of •the St. Paul Plow Compa/ny and the Western Wheeled Seraper Company respectively.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: Geo. E. Sutherland, Judge.</p> <p>Plaintiff’s decedent, Henry Guetzkow, held a policy upon bis own life, issued by the defendant company, dated December 14,1894, conditioned upon the payment of an annual premium of $136.50 on or before noon of the 14th day of December in each year. It recognized that the time of payment of these premiums might be extended by the giving of notes, and that such notes should be deemed not payment but only extensions, “ and, if any such note or any renewal thereof shall not be fully paid when due, then for any loss occurring while such note or other obligation remains due and unpaid the company shall not be liable.” It also provided : “ No agent has authority to deliver a renewal receipt upon this policy after the day when the [annual] premium falls due, without at the same time taking a certificate of good health of the insured.” The premium of December 14, 1894, was duly paid. The premium of December 14, 1895, was extended by the giving of notes, of which the last one, of $55, was due November 14 or 15, 1896. On November 12, before this note was due, the insured being then confined to the house by illness, his brother Louis Guetzkow went to the state agent of the company, Noyes, who held this note for collection, and asked for an extension of a week or two, which was accorded him upon condition of giving his own duebill for the amount, which he gave. On November 25 the same Louis Guetzkow tendered the money. The agent demanded, as a condition of receiving it, a health certificate, which Louis told him he could not give, as his brother was sick. The agent persisted in the refusal unless that condition was complied with. About ten days after the 25th, Noyes came to Louis Guetzkow’s room and offered to return the duebill, when Louis told him he wanted to pay it. He replied 'that he could not accept payment, and, throwing the duebill on the porch, went away. Shortly after the 25th, another brother, Eudolph, endeavored to persuade the agent to accept the money, but he still insisted on a health certificate. The annual premium of $136.50 due December 14, 1896, was not paid. Eudolph Guetzkow testifies that the reason for omitting such payment was the refusal already made to accept the balance of the former one without a health certificate. On January 9,1897, a further tender of payment of the $55 note was made to the agent, Noyes, and refused; and on January 11th a tender was made of the annual premium of"$136.50, and refused. On January 13 the agent, Noyes, came to the office of Guetzkow’s attorney, Mr. O. T. Williams, and requested payment of the $55 note, which Mr. Williams at once made by his check, and at the same time offered to pay the premium of $136.50 which was due under the policy December 14, 1896, which, however, the agent refused to accept. Henry Guetzkow died on January 21, 1897.</p> <p>At the close of the plaintiff’s evidence both parties rested, and both moved for a direction of the verdict. The court directed a verdict in favor of the plaintiff for the amount of ’the policy less the $136.50 unpaid premium and interest,, for which amount judgment was entered, from which the defendant appeals.</p> <p>contended, inter aUa7 that a motion for nonsuit should have been granted, because the third annual premium had not even been tendered until nearly a month after it became due. Thompson v. Ins. Co. 10é U. S. 252; Lcmtz v. Vermont L. Ins. Co. 139 Pa. St. 546; Marvin v. Universal L. Ins. Co. 85 N. Y. 278; Lamb v. Prudential Ins. Co. 22 App. Div. (N. Y.), 552. There was no waiver or estoppel in collecting the balance due on the second annual premium. Joliffe v. Madison M. Ins. Co. 39 "Wis-111; Sehimp v. Cedar Rapids Ins. Co. 124 Ill. 354; Man-dego v. Centennial M. I. Asso. 64 Iowa, 134.</p>

<p> Appealable orders: Parties. </p> <p>Where W., an officer of an insolvent corporation, commenced an action to dissolve and wind up its affairs, and a receiver was thereupon appointed, a subsequent order therein substituting creditors as plaintiffs, and making all the officers, including W., parties defendant, is not a final order affecting a substantial right, or an order in effect determining the action and preventing a judgment from which an appeal might be taken, within the meaning of subd. 1, 2, sec. 3069, Stats. 1898, and is therefore not appealable.</p>

<p> Bonds: Material modification of contract: Discharge of sureties. </p> <p>Defendants, as sureties, signed a bond guaranteeing the faithful performance of a building contract which provided that fifteen per cent, of the value of material and labor furnished should be retained until the contract was wholly fulfilled. The contract price was §3,675. There being §275 in value of the contract unperformed, plaintiff paid the contractor in full. In an action on the ■bond, held, that such payment was a substantial modification of the contract by the principals, without the consent of the sureties, and hence relieved them from liability.</p>

<p>Appeals from a judgment of the superior court of Milwaukee county: Geo. E. Sutheeland, Judge.</p> <p>Action to recover rent on a lease of land with a stable thereon in the city of Milwaukee. The complaint states, in effect, that, defendant being a tenant under plaintiff from year to year of the leased premises, it was agreed that the annual rental of $1,100 should be advanced to $1,200 at the commencement of the ensuing year, January 1, 1892; that ■defendant commenced paying rent at the new rate in accordance therewith and continued to so pay without objection till September, 1896, when he refused to pay more than $91.66 per month, and ior the rest of the year to pay at all; that the tenancy was terminated December 31, 1896; and that the defendant is indebted to the plaintiff in the sum of $308.34.</p> <p>The answer denies that the rental was changed from $1,100 to $1,200 per year except on condition that plaintiff would rebuild the barn, which he neglected to do. Eor a counterclaim it was alleged, in effect, that about January, 1892, plaintiff agreed to lease the premises to defendant for five years and rebuild the barn, and that in consideration of such improvement defendant agreed to pay $100 in addition to the regular rent of $1,100 per year; that he paid the increased rent commencing January 1, 1892, on the faith of the agreement to rebuild the barn, till $461.66 was paid in excess of the rental for the premises in their unimproved condition; that plaintiff neglected to comply with his agreement to improve the barn, whereby the defendant was damaged in the sum of $500, for which sum judgment was claimed with costs. That part of the answer containing the counterclaim was duly replied to.</p> <p>There was evidence to the effect that from January, 1892,. to September, 1896, defendant paid, without objection, rent at $100 per month; that he paid $91.66 for September, 1896,- and occupied the premises for three months thereafter refusing to pay any rent, claiming that he had overpaid.$8.34 per month from January 1,1892, by reason of plaintiff’s default as aforesaid. The evidence tended to show that about January, 1892, plaintiff and defendant made the agreement claimed by the latter, the former to make the improvement in accordance with certain plans and specifications procured by the latter as soon as practicable; that defendant, immediately after the making of such agreement and relying thereon, commenced paying rent at the increased rate; that he repeatedly thereafter requested plaintiff to make the improvement, but that he neglected and refused to comply therewith; nevertheless, that defendant continued to pay rent at the increased rate for the period of fifty-six months.</p> <p>The jury found specifically, in substance, as follows: (1) Plaintiff and defendant agreed to terminate the lease September 1, 1896, but defendant did not give up possession of the property in accordance therewith. (2) In January, 1892, plaintiff agreed to rebuild the barn, and defendant agreed to continue as tenant of plaintiff on the faith of such promise, and to pay $100 additional rent per year for five years. (8) Defendant paid $466.66 on the agreement to rebuild the barn, and did not waive his right to the benefit of such agreement. (4) Plaintiff is entitled to recover on his cause of action. (5) Defendant is entitled to recover on his cause of action.</p> <p>The court changed the finding of damages on the counterclaim to $100 and rendered judgment for plaintiff for the amount claimed in the complaint less $100. Both parties appealed.</p> <p>They contended, inter alia, that defendant’s payments, being voluntary, cannot be recovered. Van Bwren v. Downing, 41 Wis. 122; Noyes v. State, 46 Wis. 250; Scmger v. Mellon, 51 Wis. 560; Gustiii v. Viroqua, 6t Wis. 314.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: D. H. JohNsoN, Circuit Judge.</p> <p>Prior to April, 1891, one Julius Luebke was a resident of tbe city of Milwaukee, in tbis state. On January 3, 1891, be deposited in tbe defendant bank $38,000, taking therefor .three certificates of deposit of $10,000 each, and tbe fourth for $8,000; eaeb bearing interest at four per cent, if left three months; to stop at tbe end of six months, if not re-snewed. His business was that of a commercial traveler selling hardware. He left Milwaukee some time in April,, 1891. He was unmarried. His only beirs were tbe children of a deceased brother. He not having returned, and nothing having been heard from him, on April 23, 1898, Emma J. Luebke, one of his heirs, presented a petition to the county judge of Milwaukee county, setting out his residence, his disappearance, and other facts, and asked that letters of administration on his estate be issued to the plaintiff. The allegations of the petition upon which the contest in this case has arisen are as follows: “Tour petitioner further shows that on or about the month of April, 1891, said Julius. Luebke left the city of Milwaukee, as was his custom, he being engaged as a traveling agent in the selling of hardware, and was last seen in Leadville, Colorado, on Wednesday, April 29, 1891, when he acted queerly, wanted to be placed in an asylum to escape his enemies; also fancied that officers were in pursuit of him. Two hand satchels identified as belonging to him were found in the H. & H. G-. train on its arrival at Ogden, Utah. It is thought he must have left the train at some station between Leadville and Ogden. Tour petitioner further shows that she has caused search of the most exacting nature to be made for said Julius Luebke, such as causing a notice to be given to the police department of the city of Milwaukee, which department did issue, a printed circular offering a reward of $100 for any information that would lead to ascertaining his. whereabouts, attached thereto was a photograph of said Julius Luebke, and said circular was thoroughly circulated through that part of the country where said Julius Luebke was last seen; and communication has been had with all of the asylums for the treatment of the insane of which your petitioner could learn in the West, all to no purpose. And from the above facts, and the communications had by your petitioner with the persons who last saw said Julius Luebke, your pe7 titioner believes that no one has seen him alive for more-than seven years last past; that he has been absent from said state of Wisconsin, and that nothing has been heard from said Julius Luebke, for the space of seven years; and your petitioner believes the said Julius Luebke to be dead.”</p> <p>On the same day the county court made the usual order of publication, and thereafter such proceedings were had that on the 8th day of June, 1898, letters of administration were duly issued to the plaintiff. Thereafter the plaintiff brought this action to recover from defendant the amount of said several certificates of deposit. The defendant answered, admitting the deposits, but denied that the plaintiff was ever appointed administrator of Luebke’s estate, and alleged that at the time of such appointment Luebke was alive, and that the county court had no power or jurisdiction to entertain said proceedings. A jury was waived, and on the trial the facts above stated were developed. The court found the facts in favor of the plaintiff, and from a judgment entered on the findings the defendant brings this appeal.</p> <p>To the point that the jurisdiction of the county court could be attacked collaterally, they cited Roderigas v. Fast Rimer B. Inst. 76 N. Y. 316, 320; Griffith v. Frazier, 8 Cranoh, 9, 23; Helia v. Simmons, 45 Wis. 334; Eitbbamd v. G. <& N. W. R. Go. 104 Wis. 160.</p>

<p> Municipal corporations: Contracts: Disposal of garbage: Nuisances: Waters: Evidence: Circuit judge: View of premises: Injunction. </p> <p>1. Under ch. 288, Laws of 1897 (authorizing cities of the first class “ to provide by contract or otherwise for the disposal of their garbage,” etc.), it is competent for a city of that class to contract with the operator of a rendering plant, maintained outside of the city limits, to receive at such plant dead animals, and to there render, convert, consume, or otherwise dispose of the same in a sanitary and inoffensive manner.</p> <p>2. Where one of such cities never maintained or operated such an establishment, and had no connection therewith except to deliver to the proprietors dead animals found within its limits, there is nothing in the act which made such delivery unlawful or a nuisance.</p> <p>3. A court of equity is justified in refusing to restrain the depositing of dead animals, etc., in a running stream, even if such acts were illegal under sec. 1418, Stats. 1898, unless it is made to appear that such acts were injurious to the property or property rights of the plaintiff.</p> <p>4. It is permissible for the circuit judge, in an equity case, to visit and view the premises in question, where the only purpose of such view was to enable the court to weigh and appreciate the evidence in the case better than it otherwise could.</p> <p>5. An action to have defendant’s establishment, wherein dead animals and offal therefrom were converted and manufactured into marketable products, adjudged a private nuisance, to abate the same, and to recover damages on account thereof, and for an injunction, is addressed to the conscience of the court, and it is necessary for the court to be convinced that the plaintiff is sustaining substantial injury before restraining the operation of the plant.</p>

<p> Personal injuries: Evidence: Verdicts: Instructions to jury: Excessive damages. </p> <p>1. Where plaintiff’s version of a matter stands alone, except for the support given it by the somewhat vague and uncertain statements of one,of her witnesses, and is distinctly contradicted by a number of disinterested witnesses, as well as by defendant’s employees, in order to justify the entire rejection of her testimony and the direction of a verdict in utter disregard thereof, it must appear that the testimony to be rejected is incredible, or contrary to all reasonable probabilities in the face of undisputed facts.</p> <p>'2. Where the court had twice charged the jury that the plaintiff, a married woman shown to be the housekeeper of her husband, could not recover for loss of time, that portion of the charge that she was entitled to recover “ for her loss of strength and general ability to pursue her regular avocation,” while inaccurate, is not preju-dicially erroneous, taken in connection with the specific direction that she could not recover for loss of time.</p> <p>•3. A verdict for $1,350, in favor of a married woman sixty-nine years of age, for severe injuries to the arm and wrist, is held not excessive, where there is much evidence of physical suffering, and it seems quite conclusive that the injuries are permanent, and will entail suffering in the future.</p>

Appeals from a judgment of the circuit court for Milwaukee county: D. H. Johnsoet, Circuit Judge. The last will and testament of Elizabeth Ann Sutton was-duly admitted to probate in the county court of Milwaukee county. An appeal was taken, from the order of such court - allowing the will, to the circuit court, where such order was. affirmed, and -no appeal-has been taken therefrom. This action was brought to obtain a construction of the will.

<p>Appeal from an order of the superior court of Milwaukee-county: J. O. Ludwig, Judge.</p> <p>On November 7, 1S9T, the plaintiff obtained a judgment of foreclosure and sale against the defendants for $5,776.44. On January 16, 1899, the premises were duly sold by the sheriff, and the property was bid in by one Simon Heller in* the name of Minna Engel for $5,000. On January 28,1899, the court made an order confirming the sale and ordering a judgment against the defendant Willis A. Meyer for the deficiency, $1,234.77. On March 27, 1899, Minna Engel ese-cuted a mortgage to H. A. T. Upham upon the premises for $4,000. Later the defendant Willis A. Meyer, and George Koeh, as his assignee, obtained an order to show cause why the order confirming the sale should not be set aside. The order was based upon affidavits showing that the mortgaged property was worth at least $7,000; that Heller, who was acting as agent for plaintiff, agreed with H. J. Killilea, who had become responsible to plaintiff for any deficiency judgment he might secure, to bid in said property for the amount due on the mortgage for said Killilea; that Heller bid off the same in the name of Mmna, Engel, who was a relative, and who had no actual interest in said sale, but was acting in the interest of s^id Heller; that, after said sale, Heller told Killilea he would have Mirnna Engel execute a deed to him after the sale was confirmed, but this he had refused to do, and had instituted proceedings to collect the judgment of deficiency; that Killilea had paid Heller $100, to be applied on the purchase price of the property, which sum he had taken and retained. Killilea offered, if a resale was ordered, to bid the amount due on the judgment, less the amount due on the Upham mortgage. These affidavits were denied by the parties mentioned, and the matter was submitted to the court. After due consideration, the court made an order substantially as follows: (1) that the foreclosure sale be set aside; (2) that the order confirming the sale be set aside; (3) that the premises be resold subject to the Upham mortgage; (4) that Simon Heller and Minna Engel be examined within ten days in order to determine the exact amount of money disbursed and received by Minna Eigel; (5) that within five days after said amount is determined the petitioners deposit the same with the clerk of the court, subject to the further order of the court, to indemnify her against loss; (6) that said sale be not had until after the amount so determined be deposited for the protection of said Minna Engel; (7) that within ten days after said resale the sheriff pay over the amount realized thereon, to await the further order of the court in said matter. Erom this order Mi/nna Engel has taken this appeal.</p>

<p>Appeal from, an order of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>A judgment having been recovered in this action for foreclosure of a mortgage which contained a covenant of «clear fee-simple title in tbe mortgagors and a warranty against all claims, a copy of that mortgage being attached to the complaint, and there being no suggestion in either the complaint, finding, judgment, or notice of sale of any prior incumbrance, the mortgaged property, situated in the city of Milwaukee, was offered for sale by the sheriff. The interveners, Charles H. and Fred. C. Thwaits, after examination of the judgment and record on which it was founded, bid off said property at the sum of $8,301, and paid the money to the sheriff, on the understanding, induced by the state of the record in said case and the manner of sale, that they were purchasing a full and complete title thereto. Shortly after such payment, they discovered that in fact there existed a prior mortgage on the same property of $5,000, with some $600 of accrued interest. Upon the plaintiffs moving to confirm said sale and order the proceeds paid over to them upon the judgment, which, with costs and tax liens on the property, exceeded the amount of the bid, the petitioners intervened by petition, and prayed originally that the property might be cleared from the liens out of the money paid on the sale, predicating such prayer upon an ■assumption that the premises themselves were offered for ■sale and bid upon, and not the mere equity therein. The plaintiffs resisting this petition, the interveners were permitted, by a so-called reply, to pray in the alternative that the sale be set aside, they relieved from their bid, and the .amount paid by them be returned, for the reason that they had bid under a misapprehension, and misunderstanding.</p> <p>After considering much evidence by affidavits, which included, among other considerations, the value of the property, supplemented by his own inspection thereof, the court found the facts substantially as above stated; also that the interveners had made their bid and paid their money under an honest and genuine mistake, in some measure induced by the foreclosure and sale proceedings, and that the property was worth, considerably less than the amount of their bid, together with the first mortgage. He accordingly ordered that the confirmation of the sale be denied, that said sale be set aside and the amount paid thereon be- returned to the interveners, and that the sheriff proceed to make a new sale of the property; which order was made conditional upon payment by the interveners of the costs of the sale so set aside, of interest on the amount of plaintiffs’ mortgage interest in the premises from the time of the first sale to the time when another sale could be had, amounting to $77, and $25 costs.</p> <p>It further appeared that the sheriff, out of the moneys received on said sale, had discharged tax liens upon the mortgaged premises, amounting to some $450, in ignorance of an unusual and peculiar provision in the judgment requiring the sheriff to first satisfy the amount due the plaintiffs upon the judgment, and to apply to tax liens only such surplus as. might remain. The court in said order provided that the-sheriff should thenceforward have a lien upon said premises for the amount of the taxes so paid, together with six per cent, interest from the time of payment, which should be-prior and superior to the plaintiffs’ lien.</p> <p>Erom this order the plaintiffs appealed.</p>

<p> Contraéis: Parol evidence: Ambiguity: Waiver. </p> <p>1. Parol evidence is not admissible to vary the terms of a written contract, but such evidence is permissible to enable the court to say what the parties to a contract intended to express by the language adopted in making it, and is to be resorted to only when there is some ambiguity to be cleared up.</p> <p>■2. A stipulation in a written contract that the second party shall perform all evcavating the parties of the first part desire to have done before a given time, is ambiguous both in the words themselves and when such words are applied to the facts, and a situation is presented calling for the application of rules of construction to determine what was referred to by the language, and hence parol evidence should be allowed to aid in the solution of that question.</p> <p>-8. Where it is the duty of one party to a contract to prepare the ground for the operations of the other, by causing an engineer to set grade stakes, and his default, or the default of the engineer for whose conduct he is responsible, interferes so as to prevent performance by the time agreed, and the other party exercises the diligence both contemplated, the element of time will be deemed waived as a matter of law.</p> <p>4. A contract for excavating provided for payments to be made as the work progressed on the production of the proper engineer’s certificates. About three fourths of the amount earned was -paid without insisting on such certificates, and the nonproduction of such certificates was not made the basis of a refusal to pay the balance earned. Held, as matter of law, that the right to insist on the engineer’s certificates was waived.</p>

<p>Attachment: Commencement of action: “Issuing” writ or summons: Presumptions: Affidavit: Collateral attach: Residence.</p> <p>1. Considering secs. 2591,2630,2730, Stats. 1898, and Circuit Court Buie YI together, the word “ issuing,” as used in sec. 2730, refers to the actual delivery of the writ of attachment or summons to the sheriff to he executed.</p> <p>2. A finding that an action was commenced on a certain day does not necessarily mean that the summons was issued on that day, and where a writ of attachment was issued at an earlier day than the date of the return of service of the summons, in the absence of some evidence to the contrary the presumption is that the issuance of the summons was either simultaneous with that of the writ, or that the former antedated the latter; and a finding as to when the action was commenced refers to the acquiring of jurisdiction by the court requisite to the rendition of judgment under sec. 2629, Stats. 1898. '</p> <p>8. The mere date of the verification of the complaint, alone, is of very-little significance as proof of when the action was commenced, and in the absence of evidence to the contrary the circumstance that a writ of attachment was issued at an earlier date would raise an inference that the issuance of the writ did not antedate that of the summons.</p> <p>4. Under sec. 2781, Stats. 1898, governing writs of attachment, it is not necessary for the affidavit to show the facts required; it is sufficient if the affidavit contain the statement required, as a condition of the issuance of the writ, in the very language of the statute.</p> <p>5. When the affidavit complies literally with the statutory requisite to the writ, the right thereto is absolute, whether the affidavit is true or false.</p> <p>6. The right to challenge the truth of allegations of an affidavit for a writ of attachment is given by statute to the defendant, or his as-signee for the benefit of creditors, to be exercised in the action; hence, in a separate action brought by another creditor to determine the priority of attachment liens, such affidavit cannot he attacked collaterally, if good on its face, except for fraud or collusion.</p> <p>7. The mere fact that a defendant had a residence in Wisconsin at some time before a writ of attachment was issued does not conclusively establish that it continued to that time.</p> <p>8. Where a writ of attachment was issued, based on an affidavit alleging nonresidence of defendant, the mere fact that the officer made a substituted service of the summons at defendant’s usual place of abode some days after the writ issued does not conclusively destroy the allegations of the affidavit.</p>

<p>Barth v. Burnham, ante, p. 548, followed.</p>

<p>Appeals from a judgment of the superior court of Milwaukee county: J. C. Ludwig-, Judge.</p>

<p>Appeal from an order of the superior court of Milwaukee county: Geo. E. SutheblaND, Judge.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>In August, 1892, the plaintiff was the owner, of a tract of land containing eighteen acres. He placed the same in the hands of one A. B. Meyers to sell at $525 per acre, Meyers to have a commission of two and one-half per cent. Meyers conceived tbe plan of organizing a corporation to purchase-it. To that end, be interested one Joseph Whaley with him, and it was agreed that the land should be conveyed to- the corporation at $600 per acre; the latter to have one half of the difference between the cost and the price to be paid by the corporation. Whaley thereupon set out to organize the corporation, and engaged one Ilinners to assist him to procure stock subscriptions, and agreed to give him one half of his profits. Whaley and Banners represented to the defendant F. W. Sohneele that the land could be secured at $600 per acre, and agreed with him that,- if he would assist in syndicating it at $750 per acre, he should have one third of the difference. Sofm&ok joined in the scheme, and subscribed for stock. Other subscriptions were obtained, and none of the subscribers knew that the land could be obtained for less-than $750 per acre. After the subscriptions had been obtained, and while they were preparing to organize the corporation, Whaley represented to the subscribers that the time in which they could purchase the land at the price mentioned had about expired, so it was arranged that Salmeóle should take the title, to hold for the others until the corporation could be fully organized. This was accordingly done, Meyers securing the deed from the plaintiff. At that time the property was incumbered by the mortgage in suit, and the land was conveyed subject to it. After the deal was completed, Meyers paid Whaley $675, being his half of the profit mentioned in their agreement; and Whaley, in turn, divided with Banners. During all this time Meyers assisted in the organization of the corporation, and wras familiar with the circumstances. Neither Whaley,, Banners, nor Sohneele paid anything on their stock, although the other subscribers supposed they were paying in like proportion with themselves. Soon after the sale the defendant corporation was organized. Several months after its organization, the officers discovered that Whaley, Banners, and SchneaTe had made a secret profit; and, upon suit being threatened, they settled with the company by paying over $1,500. At this time neither the officers nor Sohneele knew of the profit made by Whaley and Hinners. In July, 1897, the officers of the corporation made investigations, and discovered the true state of facts. Thereupon the corporation offered to reconvey the land to plaintiff and to rescind the transaction. The defendants not having paid the mortgage on the land, the plaintiff was threatened with suit. To protect himself, he took up the mortgage, and is seeking to foreclose it in this action. The defendant corporation and Sohneele set up the transactions as heretofore stated as a counterclaim, and asked for a rescission of the sale, and a discharge from any liability on the mortgage. The court found the facts as stated, ■but, as conclusions of law, he decided that the defendants were not entitled to the relief demanded. Judgment of foreclosure and sale was entered, from which the defendants Salmeóle and the Blue Mound Investment Company appeal.</p>

<p>Appeal from a judgment of tbe circuit court for Milwau>-kee county: X>. H. JohNsoN, Circuit Judge.</p> <p>February 1, 1897, tbe plaintiffs made a verbal agreement for sale to tbe defendant of certain clover seed, wbicb the following day was confirmed by tbe defendant by tbe following:</p> <p>“ Milwaukee, Feb. 2, 1897.</p> <p>M. & N. Gehl — Dear Sirs: Confirm purchase about 169' Bgs. white clover, 8f; 9 Bgs., 6c.; 9 Bgs., 5c.; 25 Bgs. red; 7i; screen, 2c.; buyer’s option, March 1.</p> <p>“ Truly yours,</p> <p>‘‘MILWAUKEE PRODUCE Co.</p> <p>“ Would like to get set large samples of white. Kindly send us key, and obi.”</p> <p>“ Buyer’s option, March 1,” meant that the plaintiffs should deliver at any time prior to March 1 upon the defendant’s request, and, in any event, should deliver, and the buyer should receive, on March 1. During the month of February the plaintiffs requested and the defendant accepted performance as to all except the 160 bags of white clover seed, and the same without question was delivered by the plaintiffs at the defendant’s store in Milwaukee, and there weighed on the defendant’s scales, and paid for by the latter. The-plaintiffs claim and the defendant denies that on March 1 the plaintiffs, either by telephone or in a conversation, expressed readiness to deliver, and asked defendant if it was-ready to receive the remainder, and that it requested a postponement of a few days, which was accepted, and that defendant made repeated further requests for postponement. Defendant’s narrative is that there was no such conversation on the 1st, but admits that at one time within- the following week the plaintiffs said they would be ready the-following day to send over the seed, but that defendant asked them to wait until the ensuing day. Defendant claims that plaintiffs asked postponement on one or two occasions. It is, however, undisputed that both parties assented to- indefinite postponements of delivery until after. 1st of March. It. is also undisputed that on March 13 or 14 the defendant notified one of the plaintiffs that it was unwilling there should be any further postponement, and insisted on their-making immediate delivery, and that on that occasion he replied that they were ready to- deliver the seed at the warehouse where it was stored, whereupon* defendant demanded that it should be delivered at its. store, and informed them-that it could not accept a weight by the scales of the board of trade, which were not sufficiently accurate. Plaintiff M. Qehl made objection to the delivery at the store, but went away without definitely refusing or - acceding to that' request. It is also undisputed that on the following day — March 15 — the plaintiffs attempted to make a coercive and final tender of delivery, which they did by causing to be presented a warehouse receipt from the owner of the building where the property was stored, to which was attached a draft calling for payment for 23,161 pounds clover seed at 8f cents, $2,341.59; 159 bags at eleven cents, $11.49; and interest from March 1, $6.78,— total, $2,365.86. The accompanying warehouse receipt was dated December 18,. and permitted delivery only upon payment of storage and advances, the charges for storage from December 18 to< March 18 not having been paid by the plaintiffs. The-presentation of this draft and warehouse receipt was preceded by a letter from the plaintiffs containing the -following:</p> <p>“Inclosed we mail you invoice and weights for 159 bags of white clover seed, which you refused to receive yesterday according to your previous agreement. "We have taken liberty to make draft through the Eirst National Bank for the amount of invoice with warehouse receipt attached, which we trust will have your prompt attention.”</p> <p>The defendant immediately replied to that letter, notifying plaintiffs that it would not accept the draft, and that the contents of the letter were not in conformity with the facts. Payment of the draft was refused. Nothing further was done until the 26th day of March, when one of the plaintiffs, accompanied by his counsel, again presented a warehouse receipt, this time a new one, with storage charges paid, accompanied by a bill and draft the same as the fprmer, except that the item of interest was omitted. There is some dispute as to the response made by the defendant. Mr. Reel, the defendant’s president, testifies that he refused for the expressed reasons that he would not accept a warehouse receipt — that the plaintiffs had to deliver the seed at his store; besides which it had then become so late that the season was quite over, and he felt under no obligation to accept the seed. This is not denied by either the plaintiffs or their attorney, McCabe, who attempted to make the tender, neither of whom professes to be able to remember what the conversation was, further than that the delivery so tendered was refused. After the 26th of March the plaintiffs made several efforts to dispose of the seed, received offers of seven and one quarter and seven cents, and finally sold the seed on the 7th or 8th of April for six and one half cents per pound. They brought action for the difference between the contract price and the price at which they sold, together with some $22 of charges for their own services in selling and hauling the seed to the purchaser.</p> <p>A special verdict was requested, which found the making of the contract of sale, and the fact that the- seed was never in fact delivered to defendant, or paid -for, and otherwise contained answers to only the following questions: “ (2) Did the plaintiffs, on the 1st day of March, 1897, notify the defendant of their willingness and readiness to execute said contract according to the terms thereof, and did the defendant obtain from the plaintiffs an extension of time for the delivery of said white clover seed, and the payment therefor, from time, to time, until the defendant finally refused to accept the same, or make payment therefor? A. Yes.” “ (6) "When the defendant refused to accept said white clover seed, did the plaintiffs thereafter use due diligence and good faith in selling the same on the open market for the best price that could be obtained therefor ? A. Yes.” “(8) If the court should be of the opinion that the plaintiffs are entitled to judgment, in what sum do you assess their damages? A. $669.95.”</p> <p>The court, in charging the jury with reference to the second interrogatory and.the third, which was not answered, substantially-instructed them that the principal issue between the parties was as to whether the defendant asked for postponements, telling them that the plaintiffs contended, on the one hand, that they had always been ready to deliver, and had granted postponements at the request of the defendant, while the defendant claimed to have always been ready to receive, but to have granted postponements at the request of the plaintiffs.</p> <p>Judgment was entered upon the verdict after a motion for a new trial had been overruled, and the defendant appeals.</p>

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

court of Milwaukee county: G-eo. E. Sutheeland, Judge. This is an appeal from an order dismissing certain proceedings to open a default judgment, and reinstating the judgment in full force. The facts shown by the record are that on January 31,1894, a judgment for $364.18 and costs, upon a judgment note, was entered in the circuit court for ■Milwaukee county in favor of plaintiff against the defendant.

<p> Municipal corporations: Public worles: Garbage crematory: Contracts:Board of'public worles: Charter provisions: Conditions precedent: Filing plans and specifications before advertising for bids: Indeflr-niteness in requirements as to bids: Competition in bidding: Patented process: Plea in abatement. </p> <p>1. The charter of the city of Milwaukee (sec. 9, subch. Y, ch. 184, Laws-of 1874) provides that, whenever any public work or improvement shall be ordered by the common council, the board of public works-therein provided for shall advertise for proposals for doing the same, a plan or profile of the work to be done, accompanied with specifications, or other appropriate and sufficient description of the work required to be done, and of all kinds and quality of the material to be furnished, being first placed on file in the office of the-board for the information of the bidders and others. Held, that the primary authority for the institution of projects for public improvements or buildings was in the council, and it was its duty to-procure the plans and specifications for any work proposed.</p> <p>2. When the manner of procedure is-mapped out by a city charter, fbs-limitations bind the council as well as lesser functionaries, and, in a case where no discretion is vested in the governing body, the-council must follow the charter requirements with substantial strictness, under penalty of having its action set aside.</p> <p>3. No plan for a proposed plant for garbage cremation was made or filed with the board of public works, and no system of cremation was adopted, prior to- a call for bids, but a resolution was-adopted by the common council directing the board to advertise for bids therefor, and the-specifications adopted by the board, among-other things, required each, bidder to submit with his bid complete-plans and specifications fully showing and describing the buildings, machinery, furnaces, and other necessary appurtenances of the entire crematory plant, in detail, with all dimensions given, — the plant to be capable of destroying not less than 100 tons of garbage daily, and, if operated under a patented process, the right to use all patents necessary for the operation to accompany all bids. Held, that the whole scheme was so indefinite, uncertain, and unascer-tainable as to prevent competition in bidding, and that the charter provisions as to the preparation and filing of plans and specifications for the information of bidders had not been complied with.</p> <p>4 Where the charter provides that, under proper authority of the common council, the board of public works may secure the right to use any patented article or process, the submission of a general scheme to the owners of different processes, inviting bids, not only for their patented inventions, but for the erection of buildings and for furniiihing all necessary machinery and appurtenances, is not a compliance with such provision.</p> <p>■5. A city cannot contract for a public improvement, the right to which is patented and owned by one firm, unless there is a definite, well-settled price for the patent, at which it is offered to the city and all contractors, so that there shall be full and free competition as to all other things that enter into the improvement.</p> <p>■6. Bids for a garbage crematory for Milwaukee were received ranging from $51,000 to $79,000. There was indefiniteness in the primary requirements as 'to bids, and no definite standard by which they could be judged. Before it could be determined which bid was the lowest, there was necessary not only a comparison of different systems of garbage cremation, but of buildings, machinery, and appurtenances. Held, that the scheme left it open for the officials of the city to make this comparison and determine the relative merits of the different plans and systems, and thereby defeated the plain object and purpose of the city charter, requiring all contracts to be awarded to the lowest competent, reliable bidder, and opened the door for favoritism and improvidence.</p> <p>‘.7. Such bids were reported by the board of public works to the common council with the recommendation that1 they be referred to the board, health commissioner, and certain committees of the council, which was done, and they jointly recommended a contract with one who was not the lowest bidder. Held that, while in theory of law the council was entitled to the unbiased opinion ■of the board as a body, in the absence of any showing that the board was influenced in its recommendation by its associates the .contract should not be enjoined on that ground alone.</p> <p>■8. Where a city charter provides that in every contract made by the board of public works certain powers shall be reserved by the board, that certain reservations in favor of the city shall be contained therein, and that every contract shall be made expressly subject to the powers given therein to the board, it is better to follow the strict letter of the law, and make full and complete reservation •as to the rights-and powers of the board, and not attempt to incorporate such powers and -restrictions into the contract by reference to the charter provisions in general language.</p> <p>9. Matter in abatement of the action should be determined by proof on the trial, and not upon the pleadings and affidavits on a preliminary hearing.</p>

<p>Appeal from a judgment of the circuit court for Marinette-county: S. D. Hastings, Je.,. Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Oneida ■county: Ohas. Y. BaedeeN, Circuit Judge.</p> <p>In the summer of 1894, the plaintiffs’ timber lands, situated in township 36, range 3 E., township 36, range 4 E., and rtownship 31, range 4 E., in the counties of Oneida and Price, lying from one to seven miles north of the defendant’s railroad track, were damaged by fires, and this action to recover for such damage was brought. The complaint alleged negligent setting of fires by the defendant at various undefined •points along its road between about three miles east of Pren-fice and one mile east of Clifford, a distance of some twelve miles, but that plaintiffs were unable to specify the exact points on said track where the particular fires that damaged their property were set, or just which of said fires, and whether more than one, extended to and burned their lands. On the trial the proofs were confined to two fires, one known as mile-post No. 173 fire, started in the northerly, part of section 9, township 35, range. 2 E., and the Clifford fire, started near the south quarter stake of section 31, township 36, range 4 E. The amount of damage claimed was ■$32,571.75. There was no very serious dispute as to the fact ¡that fires did originate at both these points from the burning «of old ties by defendant’s employees, and did escape from the -.defendant’s right of way onto adjoining ground; it being, however, vigorously disputed whether both of said fires did not die out before reaching any of the plaintiffs’ lands, and whether there were not other fires, of which, in the latter part of July, there were several in that region of country, which in fact caused the damage, either of themselves or by intercepting and joining with the fires originated by the defendant.</p> <p>After an extended trial, had in 1897, plaintiffs recovered a verdict of $2,216.65 for damage to timber, which defendant moved to set aside for errors upon the trial and also because contrary to the law and the evidence, which motion was denied. The defendant moved to require the complaint to be made more definite and certain, accompanying the motion by an affidavit pointing out that several fires had originated along its right of way, of which it had more or less knowledge, among them the two fires afterwards relied on by the plaintiffs, and asserting that each of said fires would require the attendance of a considerable number of different witnesses not required for either of the others. That motion was overruled, and a written exception thereto filed, but neither the motion, order, nor exception was included in the bill of'exceptions which has been settled in the case.</p> <p>The assignments of error are: (1, 2) denial of the motion to make the complaint definite and certain; (3) refusal of instruction excluding from the consideration of the jury any damage claimed to result from the fire at mile-post No. 173; (4) refusal of requested instruction as to certainty of evidence; (5) refusal to direct a verdict in favor of the defendant as to the damage to timber lands; and (6) denial of defendant’s motion for a new trial.</p>

<p>EeboR to review a judgment of the circuit court for Clark county: James O’Neill, Circuit Judge.</p> <p>This is -an action brought by Garvim against Bruley for the alleged conversion of a quantity of logs on or about the-15th day of January, 1897. The taking of the logs by Bruley was admitted, and the question at issue was simply as to the ownership of the logs.</p> <p>Garvim claimed title to the logs upon evidence tending to show the following facts: That in the year 1896, and prior thereto, Jesse Lowe and Thomas Lowe owned two-forties of land in Clark county, Wisconsin, adjoining each other; that in the month of March, 1896, a road was laid out by the town authorities upon the line between said forties, and that in June, 1896, Garvin made a verbal contract with the town to cut down the timber in said highway and clear the same; that after making said contract he made a yerbal contract with the two Lowes to purchase the timber then standing in said new highway, and paid a part of the purchase price thereof; that, at the time said last-named contract was made, he had entered upon said highway, and had underbrushed a part of it; that he continued to work thereon clearing said highway, and out down the trees from . which the timber in dispute here resulted on the 28th day of December, 1896; that he had no notice that Bruley claimed any rights in said timber until after the same had been converted into logs; and that Bruley took possession of the logs and converted them in January, 1897.</p> <p>The evidence on the part of Bruley tended to show that he made a written contract with Jesse Lowe for the purchase of an undivided half of both forties December 8,1896, and about the same time made a verbal contract with Thomas Lowe for the purchase of the other undivided half of said land, and paid the sum of $400 of the purchase money, and was given possession of the land; that the written contract provided for the payment of the balance of the purchase money within six months from December 8, 1896, and the delivery of the deed upon such payment,, and, further, that the title of the timber on said lands should remain in Lowe until the purchase money was fully paid; that, in pursuance of said written and oral contracts, Bruley took possession of the land, and comhaeneed logging the timber thereon, as early as the 15th day of December, 1896; that on the 29th of December, 1896, the two Lowes executed warranty deeds of said lands to Bruley; and that he (Bruley) had no information of the laying out of said highway, or that Garvin claimed any interest in the timber thereon, at the time he contracted for said lands, nor at the time when he went into possession thereof and began logging the saíne.</p> <p>There was a special verdict found by the jury as. follows: “(1) "Were Thomas and Jesse Lowe in the year 1896, and prior to the time when they made a bargain and sale thereof, the owners of the southwest quarter of the southeast quarter of section 17, and the northwest quarter of the northeast quarter of section 20, in township No. 25 north, of range No. 1 east, in Clark county, Wisconsin? Answered by the cov/rt upon the undisputed evidence: Yes. (2)' Did the plaintiff in the summer of 1896 make a parol contract with Thomas Lowe and Jesse Lowe to sell to the plaintiff the*timber on the right of way or highway on the lands described in the answer? H. Yes. (3) Did the plaintiff, pursuant to said parol contract, thereafter cut the timber for which this action is brought? A. Yes. (4) Did the plaintiff have notice that the land upon which said timber was cut, or the timber thereon, had been sold, or contracted to be sold, to the defendant, Bruley, prior to cutting the same? A. No. (5) Was the plaintiff notified by either Thomas Lowe or Jesse Lowe not to cut said timber prior to cutting the same? A. No. (6) Was the plaintiff notified by the defendant, Bruley, after he had made a contract for the purchase of said land or timber, not to cut said timber, prior to cutting the same? A. No. (7) What was the value of such of the timber cut by the plaintiff as was taken by the defendant, at the time and place when it was so taken? A. $80.93£. (8) How much is the interest, at six per cent., on the sum so found to be the value of said timber, from the date when taken to the time of this verdict? A. $7.20.”</p> <p>Upon this verdict judgment was rendered in favor of Garvin for $88.13 damages and $124.77 costs, and Bruley sued out a writ of error.</p>

<p>Appeal from a judgment of the circuit court for Wau-kesha county: James J. Dick, Circuit Judge. The appellant moved in this court for an order to recall an execution and -writ of restitution issued after the appeal had been perfected, .and to restore the money collected and the possession of the property in dispute.</p> <p>The facts are stated in the opinion.</p>

<p> Findings by referee: Review on appeal: Exceptions: Master and servant: Compensation: Deductions for absences: Consideration. </p> <p>1. General exceptions to the court’s order of confirmation of a referee’s report are sufficient to enable the appellate court to review specific exceptions taken to the referee’s findings, subject to the rule that the appellate court will, in its discretion, refuse such review where exceptions to the report are numerous, and it is uncertain what disposition the trial court may have made of some of them, and, in such case, the judgment will be reversed with directions to the court below to pass specifically on the exceptions.</p> <p>2. Under a contract of hiring for a specified term, in the absence of an express stipulation or custom, the employee is not entitled to compensation for time lost without fault of either party. Right to deduct for absence will not be lost merely by payment of the stipulated salary at stated periods.</p> <p>3. The surrender of the right to deduct for absences is to be inferred readily in view of a nearly general practice so to do, and may be predicated either on a theory of settlement, a practical construction of the contract by acts of the parties, or, in the. absence of fraud or mistake, voluntary payment of wages for the lost time specifically, with the intention to make it as such and not as a payment generally on the contract.</p> <p>4. Plaintiff, employed by defendants for one year on a salary payable weekly, being absent for one week, his salary was paid as usual, with the statement by one of defendants that once, under like circumstances, he (defendant) had been deprived of his salary, but that he would not treat plaintiff so. Subsequently defendants stated that their accounts were balanced by a payment then made, there being no deduction made for plaintiff’s absence. Held, that the facts supported both a practical construction of the contract in favor of plaintiff's contention, and a voluntary payment without intention to make deductions for time lost, and that defendants were not entitled to withhold that payment from subsequent wages or to recover it back by suit.</p> <p>5. Where plaintiff was engaged to work for defendants at a stated salary, expense incurred in boarding defendants, and work, not contemplated in the original contract, performed by plaintiff, are sufficient consideration to support a subsequent agreement granting him commissions in addition to his salary.</p>

<p> Gaming contraéis: Consideration: Foreign statutes: Presumptions. </p> <p>1. Defendant, having lost at poker in Colorado, requested plaintiff to pay his losses, which he did. In an action to recover therefor, the statute of Colorado in reference to gaming contracts was not pleaded nor offered in evidence, but it was admitted, on the argument on appeal, that the statute of that state was virtually the same as sec. 4538, Stats. 1898. Held, that the case did not come under the statute of Wisconsin, but that, in the absence of objection in the trial court, and in view of such admission, the Colorado statute must be regarded as in evidence without objection, and that the agreement sued on was based upon an illegal consideration and therefore void.</p> <p>2. The presumption that in certain classes of cases the statute of another state is the same as that of Wisconsin does not apply to penal statutes.</p>

<p>PROHIBITION to the Superior Oourt of Milwaukee county and to J. C. Ludwio, judge thereof.</p> <p>On January 18, 1900, there were filed in this court three verified petitions,— one by David S. Rose, mayor of the city of Milwaukee; another by Edward M. Schuengel, clerk of the city of Milwaukee; and another by Cornelius Corcoran and twenty-two others, therein named, being twenty-three in number, and a majority of the forty-two aldermen of that-city. Each of such petitions prayed that a writ of prohibition issue from this court to the Superior Court of Milwcm~ hee Comity and to the Honorable John G. Ludwig, judge thereof, restraining him and it from proceeding in the contempt proceedings therein mentioned, and from passing any sentence therein against the petitioners, respectively, and from imposing any fine upon them, and from restraining them, respectively, of their liberty, and from in any way punishing any of them for the cause therein stated. On the same day such writ was issued from this court, restraining said court and judge as so prayed, until February 2, 1900, and until the further order of this court, and requiring that, on the day last named, that court and the judge thereof show cause before this court why they should not be absolutely restrained and prohibited from any further proceedings in such contempt proceeding and matter.</p> <p>On January 27, 1900, Honorable John C. Ludwig, as such-judge of the superior court of Milwaukee county, made and filed in this court due return under the seal of that court to such writ to the effect that such writ had been and was being obeyed; that December 21, 1899, one E. A. Schwartz-burg began an action in that court against the mayor, clerk, and the forty-two members of the common council of the city of Milwaukee, and other persons and corporations named in the summons and complaint therein mentioned, and a true copy of which was therewith returned, and procured therein an injunctional order, a true copy of which was thereunto annexed and therewith returned, upon the verified complaint and the undertaking, a true copy of which, was annexed and therewith returned, and which summons, complaint, undertaking, and injunctional order were duly served on all of such defendants therein; that after such service certain of such defendants violated and set at naught such injunctional order, as shown by their admissions and' answer; that thereafter, upon motion by such defendants to vacate such injunctional order before that court, and upon the hearing of that motion, the disregard and violation of such injunctional order was brought to the notice of that court, Avhereupon that court made and caused to be served the order to show cause, a true copy of which was thereunto annexed and therewith returned; that the same was duly served on all of such defendants accused of violation of such injunctional order, except Caufy; that such accused persons appeared in answer to the order to show cause, whereupon specific charges were filed against each, true copies of which charges were thereunto annexed and therewith returned; that thereupon such defendants, being personally present, and by their counsel, offered, in answer to the charges, their return to the order to show cause, and asked to have the same stand as an answer or demurrer to such charges; that the court, having heard arguments thereon at great length, at the conclusion of such arguments, made and filed the decision in writing, a true copy of which was thereunto annexed and therewith returned; and that such proceedings in that court went no further than the decision and determination as set forth in such written opinion up to the time the writ herein was served upon him, and he thereby certified to this court, in obedience to such writ, and with such writ, the annexed, which were true, correct, and complete copies of all the proceedings aforesaid, and all the papers in such contempt proceedings, and that copies were returned instead of the original for the reason that the defendants so charged, by their attorneys, insisted on proceeding with, the motion to vacate such injunction while the matters relating to such contempt were in progress in this court under the writ aforesaid.</p> <p>Upon the hearing in this court, February 2,1900, such re-lators severally demurred to such return.</p> <p>In the complaint of H. A. Schwartzburg, so mentioned in such return, it is alleged, in effect, that he is and was at all times therein mentioned a resident, citizen, elector, and taxpayer in the city of Milwaukee, and as such brought that suit in his own behalf and in behalf of all other taxpayers of the city similarly situated; that the defendant Demid 8. Hose is the duly elected, qualified, and acting mayor of that city; that the defendant K M. Sehumgel is city clerk of that city; and that the defendants therein named, being forty-two in number, are the duly elected, acting, and qualified aldermen constituting the common council of that city; that the defendant the Milwaukee Electric Railway &r Light Company is a stock corporation organized and incorporated under the laws of Wisconsin, and engaged in the business of running and operating the city railway by electric power in the streets of Milwaukee, and also making and disposing of for money, to the city and to other persons,, electric light and power; that -the defendant Henry C. Payne is a resident in Milwaukee, and the vice president of such railway and light company, and the defendant Charles-F. Pfister is one of the directors thereof; that all of the other officers and directors of the railway and light company reside outside of this state, except one Bigelow; that the city of Milwaukee is now, and has been for many years-last past, the owner of and entitled by law to grant, sell, or dispose of for money the right to use its streets for street-railway purposes and the transportation of passengers under and pursuant to the charter of the city and the laws of the state; that the city, in its corporate capacity, and as trustee for the public, owns and has the right to grant to any person or corporation the use of its streets, or any part thereof, for tbe carriage and transportation of passengers for hire or compensation, and to fix the rate of such compensation to be charged by such grantee, and that such right is of great value, to wit, for all streets available for such purposes, $3,000,000; that there are sixteen miles in length of streets therein referred to upon which no right has been heretofore granted to the railway'and light company; that that company has, or claims to have, certain licenses or rights under ordinances of the city to use most of the streets of the city available for street-railway purposes for a limited period, which, by the terms of such ordinances, has not yet expired; that the railway and light company and the mayor of the city and certain other defendants who are members of the common council, unknown to the plaintiff, soon after their election, colluded and conspired together for the purpose of obtaining for the railway and light company, as a gratuity from the city, valuable rights, licenses, and franchises to use its streets for street-railway purposes on all principal streets of the city not theretofore held by the railway and light company for such purposes, and an extension of its existing licenses or franchises for the purpose of preventing the common council, in the exercise of its just powers in the future, from regulating the rate of fare to be charged by 'the railway and light company, and for the purpose of extending existing licenses or franchises to use such streets, and so heading off any future common council or mayor from acting thereon; and, for the purpose of carrying out such conspiracy, the mayor opened up and carried on correspondence with the officers of the railway and light company, and held interviews and had meetings with such officers at various times between April 10,1898, and November 20, 1898; that in pursuance of such conspiracy and combination the railway and light company, November 4, 1898, offered to the mayor, and through him to the city, that, in case the city would grant the railway and light company the right to charge five cents for each single fare for each passenger, with one transfer for each fare paid, and the right to lay tracks and operate its street railways over certain streets in the city not then covered by such street railway or any of its franchises, the railway and light company would pay to the city, in lieu of a reduction of fares, January 1, 1899, $50,000, January 1, 1900, $60,000, January 1, 1901, $Y0,000, January 1, 1902, $80,000, January 1,1903, $90,000, January 1, 1904, $100,000, and $100,000 annually thereafter, and, in addition, whenever the profits earned by the railway and light company should pay a dividend of sis per cent, per annum on its stock to its stockholders, that then and from thenceforth there should be paid to the city one third of all annual profits above six per cent, in addition to the $100,000 per annum, and that such payments were to be independent of and in addition to all taxes, assessments, license fees, or charges exacted from the railway and light company under any law of this state; that such communication, -with other correspondence between the mayor and the officers of the railway and light company, was made public November 20,1898; that thereupon the electors and taxpayers of the city assembled in several mass meetings, and protested against the sale of such licenses or franchises, or the extension thereof, or the sale of the right of the city to regulate the fare charged by the railway and light company; that such offer was not accepted, but the proceedings thereon were allowed to lapse and be abandoned; that thereafter the mayor and certain of the members of the common council and the railway and light company and its officers renewed and continued their efforts in pursuance of the unlawful combination and conspiracy aforesaid, to procure for the railway and light company, without any compensation to the city, the valuable rights, privileges, licenses, and franchises aforesaid, and held various conferences and meetings at divers .places and on different dates for the purpose of obtaining from the city, through the collusion and connivance of the mayor, the valuable-, rights, licenses, and franchises aforesaid, and thereafter, and in pursuance of such combination and conspiracy, the railway and light company caused to be prepared and submitted to the common council an ordinance thereunto annexed, to which the amendment thereunto annexed and made part thereof was, December 18,1899, made and passed to a third reading by the common council; that the only compensation or payment to the city for such grant in such ordinance contained was that the railway and light •company would sell, to be used during certain hours in each day, twenty-five tickets for $1, or six tickets for twenty-five cents, each of which tickets should entitle the holder thereof to use the same upon the cars of the railway and light company only between the hours of 5:30 o’clock and 7:30 •o’clock in the morning, and between the hours of 5 o’clock and 6:30 o’clock, central standard time, in the afternoon of each day, until January 1, 1905, and thereafter to continue the sale of tickets in packages at the prices aforesaid until December 31,1934, each to be good at all hours of the day, with the same privileges as are or maybe accorded to the passengers paying a single cash fare of five cents.</p> <p>Said complaint further alleged that the mayor, Henry C. Payne, Charles E. Pfister, and certain of such aldermen and various agents of theirs throughout the city, at their instigation and direction, falsely gave out, held forth, and pretended that under the existing ordinance possessed by the railway and light company that company had an absolute right to charge five cents for each fare, and that such right was beyond the power of the common council to regulate, and that in return for the concession on the part' of the railway and light company to the city of a power which the city amply possessed at ail times therein mentioned, the city should and ought to grant the railway and light company not only an extension for all its existing licenses or franchises for a period of ten years after 1924, but also the right to charge an absolute fare of five cents for each pas>-senger, except as modified through purchases of tickets in quantities aforesaid, and to the extent aforesaid, and that additional licenses or franchises to use about sixteen miles of the streets of the city described, shutting out all possible competition, should be given gratuitously to the railway and light company; that the railway and light company and its officers and the mayor and certain of such aldermen colluded and conspired together in pursuance of the plan, scheme, or conspiracy aforesaid to procure the grant and licenses to use such streets, fixing the rates aforesaid, and extending the period of existing licenses as aforesaid, in the form of a contract, instead of in the form of legislation, so>that such ordinance should be first apparently proposed by the city subject to the acceptance of the railway and light company, and that thereafter the railway and light company should accept the same in writing, and make the pretended concessions aforesaid, and extend its lines upon the sixteen miles of new streets, and so obtain in. the form of an ordinance a contract, which could not be thereafter impaired, either by the state legislature or by the common council, and that such was the purpose of the railway and light company and its officers, aided by the mayor and certain members of the common council, and for such purposes the ordinance in question was passed; that under the existing ordinances the railway and light company has no absolute right to charge a fare of five cents, but only a fare not to exceed five cents, for each passenger, subject to the regulations by the common council, and has no right to use any of the streets longer than 1924, except at the will or pleasure of the common council, and has no authority or right whatever on the new streets mentioned, nor to withhold-transfer tickets, but are in all such matters subject to the? reasonable regulations of the common council; that the railway and light company and its- officers and the mayor and certain of the aldermen, in pursuance of such fraudulent and collusive scheme to give away the valuable property or rights aforesaid of the city to the railway and light company, are negotiating and dealing together, and pretending to represent the city for the purpose of making proposed ordinances, not an ordinary legislative measure or quasi contract, like a charter, but an absolute contract based upon a compromise as a valuable consideration; that the vice president of the railway and light company, acting for and on behalf of Ghat company, for the express purpose of obtaining such ordinance, and of silencing opposition to the same, and obtaining support of the aldermen who represented their wards, entered into an agreement with such citizens therein whereby he and that company assumed and agreed to pay such citizens $8,500 in case of the passage of such ordinance, and thereby induced many of such aider-men to vote for such ordinance; that the mayor and common council have no legal right, power, or authority to make any such contract with the railway and light company, nor to give away or donate any of the property or rights, licenses, or franchises which the common council might, by law, have authority to grant or confer without a valuable consideration when it is possible to obtain a valuable consideration therefor; that the pretended consideration or compromise is wholly inadequate and insufficient to pay for the rights granted by such ordinance and the amendment thereto over and above what the railway and light company already enjoys; that the rights granted by such ordinance and the amendment thereto, over and above and beyond those owned or enjoyed by the company under existing ordinances, are worth more than $1,000,000; that December 18, 1899, one Cassius M. Payne offered, in writing, to the city, $100,000 in cash for all' the additional rights, licenses, and franchises over and above what it now possesses, proposed to be granted to the railway and light company by such ordinance, and accompanied such offer with a tender of a certified check to the city for $25,000 as earnest of good faith and part payment; that Cassius M. Payne was able, ready, and willing to pay $100,000 to the city for such, rights, privileges, and franchises last mentioned, and is still able, ready, and willing to pay such sum of $100,000 for the purpose aforesaid, which offer the city and its officers refused, and still refuse, to accept, or any other sum for such rights, privileges, and franchises, but intend by means of the collusion and conspiracy aforesaid to give the same as a gratuity to the railway and light company; that the proposed ordinance was reported to the common council for passage as a new or substitute ordinance by the majority of a special committee to which the same was referred December 4, 1899, accompanied by the minority report calling attention to its evils and injustice, and the inadequacy of consideration therefor; that December 18, 1899, such ordinance came before the common council for passage upon the majority and minority report of the special committee.</p> <p>Said complaint also alleged that, notwithstanding the several facts mentioned, the common council, December 18, 1899, after passing the amendment thereunto annexed, by a vote of twenty-five in favor of such amendment to seventeen against it, in the manner therein set forth, and in pursuance of the agreement, combination, and conspiracy therein mentioned, passed such ordinance as amended, and ordered it engrossed, and that such ordinance is now in the hands of the city clerk and of the engrossing committee of the common council, and the same will be engrossed, ordered to a third reading, and passed at the next meeting of the common council, to be held within a few days, and will then be accepted by the railway and light company, and thereafter enforced by the city, to the great loss and damage of the plaintiff and all those similarly situated; that the twenty-five members of the council so voting for such ordinance, being defendants named therein, colluded and conspired together with the mayor and Payne and Pfister to obtain such valuable rights and franchises for the railway and light company gratuitously or for the alleged consideration mentioned, and held various conferences prior to December 18, 1899, in secret, and rehearsed the proceedings which they would take at such meeting, and agreed together as to the mode of proceeding; that the minority of the common council called the attention of that body to the fact that they could not understand the legal effect of the amendment, and moved that the amendment be referred to the judiciary committee, but the same was voted down by the twenty-five members of the common council last named, and the amendment has never been referred to or considered by any committee of the common council; that at the meeting of December 18, 1899, the chairman of the common council instructed the twenty-five members how to vote, and the effect of their voting on certain motions; that the twenty-five alderman so named prevented all efforts at adjournment, refused to go into committee of the whole, and rushed the measure through the common council without deliberation, and with indecent haste, and without consideration; that, in pursuance of such collusion and conspiracy, the twenty-five members of the. council last named, prior to the meeting of December 18, 1899, agreed together that no amendment to such ordinance proposed by any one except one of their number named should be considered or permitted to pass, and that no amendment thereto should be referred to the judiciary committee, and that such report of the minority should not be adopted or approved; that at the meeting of. December 18, 1899, the twenty-five aider-men therein named carried out in voting and passing upon such ordinance their agreements in aid of and pursuant to such conspiracy; that under tbe proposed ordinance as originally written, and also under the same as amended, the city acquires no rights that it did not theretofore possess under existing franchises, .charter, and ordinances, and receives no consideration whatever; that no consideration accrued to the city or the taxpayers thereof; that, in furtherance of such conspiracy, Pfister, for the purpose of buying off opposition to the proposed ordinance and obtaining support of certain aldermen, entered into an agreement in writing December 18,1899, prior to the vote on such ordinance, with a certain person therein named, and others unknown to the plaintiff, to the effect that he would be personally liable to pay about $9,000, or not to exceed $9,000, in case the proposed ordinance passed the common council and was accepted by the railway and light company, which offer was accepted, and their opposition to such ordinance by reason thereof withdrawn; that by reason of the facts alleged the money, rights, privileges, and franchises mentioned were lost to the city, and squandered, and the plaintiff’s burdens of taxation correspondingly increased, the burdens of taxation of all other taxpayers in the city in similar condition to the plaintiff are correspondingly increased by such unlawful waste and squandering of the salable, valuable rights and property of the city; that the railway and light company has issued $7,000,000 in negotiable, corporate bonds, secured by a mortgage on its right of way, cars, apparatus, and property, including such rights and franchises, and all other rights and franchises which it may acquire from the common council, and may issue still other bonds, all of which may go into the hands of Iona fide holders for value, and hence become enforceable; that the common council and city clerk threaten and intend to engross and pass such ordinance or contract by a majority vote of all its members, and give out that they are about to do so, and the mayor of the city threatens and intends to approve the same, and gives out that he will do so, and the railway and light company threatens and intends to immediately accept the same, and file or tender a relinquishment of such pretended rights as they claim to be the consideration of such contract.</p> <p>Plaintiff asked that a full discovery he had, and that said defendants be required to make answers in that behalf, and, •when such facts are. discovered, the same be added by amendment to such complaint; and averred that he has no adequate remedy at law, and that, unless that court grant to him its injunctional order or writ of injunction, he and his fellow taxpayers will be without remedy.</p> <p>Wherefore the plaintiff asked that the defendants therein he each and all enjoined and restrained from passing such ordinance.</p> <p>Upon such verified complaint and the undertaking thereunto annexed, the court commissioner, on December 21,1899, ordered that the city, the mayor, the city clerk, and each and •every of the defendants named therein as aldermen of the city, be, and they were thereby, enjoined an.d restrained ■until the further order of that court from signing, engrossing, passing, amending, voting on, publishing, approving, or enforcing such proposed ordinance, as amended, or any similar ordinance, and from contracting away any rights of the city, by ordinance or otherwise, to the railway and light •company, under such proceedings, and that the railway and light company, Pfister, and Payne, each and all of them, were thereby enjoined and restrained from accepting the ordinance as amended, or any similar ordinance, and from ■attempting to purchase from the city, except by open competition, and upon due notice, and upon adequate consideration, any rights, privileges, or franchises to use the streets of the city.</p> <p>Upon the hearing in the trial court of the several orders to show cause why the injunction so issued by such court •commissioner December 21,1899, should not be vacated and set aside, it having appeared to the judge of such court in, open court by affidavits filed and read in opposition to such motions, and by statements of one of the attorneys and counsel for some of the aldermen defendants and by one of the attorneys and counsel for the mayor, that, notwithstanding* the injunctional order therein named and served upon the defendants, the mayor signed and approved the ordinance January 2, 1900, and the city clerk signed such ordinance, and the president of the common council signed and approved such ordinance, and the twenty-four aldermen therein named as defendants voted on, passed, and approved such proposed ordinance, and that all and singular the acts aforesaid of the defendants in violation of such injunction were done at the city of Milwaukee January 2, 1900; therefore, the trial court, of its own motion, suspended the hearing upon such several orders to show cause why the injunction! should not be vacated and set aside, and on January 5,1900,. ordered that each and every one of the aforesaid defendants, who, as it is claimed, violated such injunctional order, show cause before that court why he should not purge himself of his alleged contempt, or why, in default of his being able so-to do, he should not be punished as; for a contempt of that court, in the manner and to the extent allowed by law; that a copy of that order to show cause should be served on each of the defendants named in the body of the order on or before 9 o’clock a. m. of January 5, 1900; and it was therein further ordered that each and every one of the defendants named in the body of that order as having violated such injunction show cause, as aforesaid, before that court on January 5,1900, at 10 o’clock a. m. of that day, or as soon thereafter as counsel could be heard, and that specific charges be then and there filed under oath against and served upon each of such defendants named in the body of that order.</p> <p>Such order to show cause having been duly served, the-trial court, upon the hearing thereof, adjudged that it had jurisdiction, and hence granted the order to show cause, and adjudged that the mayor, clerk, and the majority of the common council named were guilty of the contempt of that court in violating such injunctional order.</p> <p>They contended, inter alia, that the act in question was-legislative in its nature, notwithstanding a contract arises therefrom, and hence beyond the power of a court of equity to interfere therewith. Green Bay v. Brauns, 50 Wis. 204; Wright v. Milwaukee F. B. do L. Co. 95 Wis. 29-36; State ex rel. Attfy Gen. v. Madison St. R. Co. 12 Wis. 612-611; State ex rel. Cream City R. Co. v. Hilbert, 12 Wis. 184; State ex rel. Milwaukee St. R. Co. v. Anderson, 90 Wis. 565; Sted-man v. Berlin, 91 Wis. 505; Booth, Street Railway Law, § 12; Elliott, Roads & S. 562, 563; Tilley v. S., F. do W. R. Co. 5 Eed. Rep. 651; St. Louis v. Western Union Tel. Co. 148 U. S.. 103; New Orlecms v. Gi'eat Southern T. do T. Co. 40 La. Ann. 41; Belleville v. Citizens H. R. Co. 152 Ill. 186; Chicago M. G. L. Co. v. Lake, 130 Ill. 42; Baltimore T. do G. Go. v. Baltimore, 64 Eed. Rep. 160; City Railway Co. v. Citizens Railroad Co. 166 IT. S. 566; Des Moines G. Co. v Des Moines, 44 Iowa, 505-509; Walla Walla v. Walla Walla W. Co. 112 U. S. 1-9; Montgomery G. L. Co. v. Montgomery, 4 L. R. A. 616, 621; Kittinger v. Buffalo T. Co. 160 N. Y. 3T7; Hayes v. M. C. R. Co. Ill U. S. 231; Wabash R. Co. v. Defiance, 161U. S. 91; Att'y Gen. ex rel. Taylor v. Brown, 1 Wis. 513-522; Mississippi m. Johnson, 4 Wall. 500; Green v. Mills, 25 U. S. App. 383; Angle v. C., St. P., M. do O. R. Co. 151 IT. S. 1; Cincinnati St. R. Co. v. Smith, 29 Ohio St. 306; Capoe May do S. L. R. Co. v. Cape May, 35 N. L Eq. 419-421; Alpers v. San Francisco, 32 Fed. Rep. 503; People ex rel. Davis v~ Sturtevant, 9 N. Y. 263; Roberts v. Louisville, 92 Ky. 95; Trading S. Oo. v. Memphis, 101 Tenn. 181; Paterson db P. 3. P. Oo. v. Paterson, 24 N. J. Eq. 159; Pavis v. Mayor, ete. of 3. Y. 1 Duer, 452; 1 Dillon, Mun. Oorp. (4th ed.), § 308; 2 High, Inj. (3d ed.), § 1246; "Cooley, Const. Dim. 221, note; People ex rel. Bolton v. Albertson, 55 N. Y. 50; People ex rel. McLean v. Flagg, 46 N. Y. 401; Baird v. Mayor, etc. of N. Y. 96 N. Y. 561; Waterloo W. Mfg. Go. v. Shanahan, 128 N. Y. 345.; Ped/rich v. Pipón, 73 Wis. 622; Taylor v. Oarondelet, 22 Mo. 105; 3ela/nd v. Lowell, 3 Allen, 407; State ex rel. Aliy Oen. v. Ounningham, 81 Wis. 440; Crescent Oity L. S. L. db S. 3. Go. v. Jefferson Police Jury, 32 La. Ann. 1192. The oity of Milwaukee is not authorized by its charter to grant street railroad franchises. Sec. 1862, Stats. 1898, alone authorizes such grants. Pañis v. Mayor, etc. of 3. Y. 14 N. Y. 507; Asliland v. Wheeler, 88 Wis. 615; State ex rel. Cream City P. Co. v. Filbert, 72 Wis. 190; Milwauhee F. P. db L. Oo. v. Milwauhee, 95 Wis. 41; State ex rel. Attfy Oen. v. Janesville W. P. Oo. 92 Wis. 496. If the court was without jurisdiction the disregard of the injunctional order constituted no contempt. Pichey v. Peed, 78 Ill. 261; Weber v. Weber, 90 Wis. 467; Ln re Sawyer, 124 U. S. 200; Ln re Ayers, 123 U. S. 443.</p> <p>■ To the point that, when a municipal council acts or is about to act illegally, that is, beyond the powers conferred on it by law, it is amenable to ¡the power of the courts and the courts have jurisdiction to annul, direct, or restrain the unlawful acts of such body, they cited 1 Pomeroy, Eq. Jur. §§ 1.129-131; Ln re Posenberg, 90 Wis. 581, 584; People ex rel. Pañis v. Sturtevamt, 9 N. Y. 263, 278; State ex rel. Gill v. Watertown, 9 Wis. 254; State ex rel. Anderton v. Kempf, 69 Wis. 470; Farles v. Wells, 94 Wis. 285; Lamd,L. db L. Go. v. McLntyre, 100 Wis. 256; Webster v. Douglas Oo. 102 Wis. 181; sec. 1, subch. I, ch. 184, Laws of 1874; State ex rel. M., T. <& W. B. Oo. v. Tomahcmh, 96 Wis. 78; Port of Motile v. L. dk N. B. Go. 84 Ala. 115; Bob-erts v. Louisville, 92 Ky. 95; Des Moi/nes O. Go. v. Des Moines, 44 Iowa, 505; Stevens v. St. Mary's Travrwng School, 144 Ill. 336; Paterson & P. D. B. Oo. v. Mayor, eta. of Paterson, 24 N. J. Eq. 159; Meredith v. Sayre, 32 N. J. Eq. 557; Gaye May ¿6 S. L. B. Oo. v. Gape May, 35 N. J. Eq. 419; People ex rel. Negus v. Dwyer, 90 N. Y. 402; Davis v. Mayor, eta. of N. Y. 1 Duer, 452, 513; Milhcw v. Sharp, 15 Barb. 193; S. O. 27 N. Y. 61T; Blaschko v. Wurster, 156 N. Y. 437; Adamson v. Union B. Oo. 26 N. Y. Sup. 136; Norris v. Wurster, 48 N. Y. Sup. 656; Gusthal v. Aldermen of New Yorh, 48 N. Y. Sup. '652; Oerlach v. Brcmdreth, 54 N. Y. Sup. 479; OincinnaU St. B. Go. v. Smith, 29 Ohio St. 291; Page v. Allen, 58 Pa. St. 338; Trading S. Oo. v. Memphis, 101 Tenn. 181; Spring Valley W. W. v. Bartlett, 16 Eed. Rep. 615, and cases; Alpers v. San Francisco, 32 Eed. Rep. 503; Murphy v. East Portland, 42 Fed. Rep. 308; Orampton v. Zabrishie, 101 U. S. 601; New Orlea/ns W. Oo. v. New Orlea/ns, 164 U. S. 471.</p>

<p> Deeds: Delivery: Intent: Fraud. </p> <p>1. In an action to establish the delivery of a deed to plaintiff from her husband, since deceased, and to compel the heirs of the grantor to execute and deliver to plaintiff deeds of confirmation, a finding' that the deed was never delivered is held not to he so clearly against the weight of the evidence as to authorize reversal on appeal.</p> <p>2. It appearing from the testimony that the deed was shown to plaintiff by the decedent so that she should believe it to be effectual, but without intention of making it so in fact, and with the intention that the decedent should afterwards destroy it if he chose, the deed being a pure gift and nothing having been done or advanced on the strength of it, the plaintiff must recover, if at all, by showing the fact of delivery, and cannot recover by showing the deception in which there was no legal fraud.</p> <p>3. While a mental reservation on the part of the grantor cannot destroy the effect of an otherwise valid delivery, yet where actual delivery is not proven by direct testimony or admitted, and the question whether such actual delivery ever took place is to be determined by inferences from surrounding circumstances, the intent of the parties may materially assist in determining the proper inference to be drawn.</p>