Volume 106 — Wisconsin Reports

<p>(1,2) Jurors: Examination: Bias: Waiver of errors. (3,4) Notice of injuries, when required: Condition precedent or limitation9 (5) Action, tort or contradi Conspiracy. (6-9) Restraint of trade: Unlawful combinations: Overt acts. (10,11) Special verdict: Denial: Immaterial error. (12-14) Damages: Injury to feelings.</p> <p>1. Where a defense is that the acts complained of were done pursuant to the by-laws of a liverymen’s union to which defendants belonged, jurors may, as a basis for challenge either for cause or peremptory, be asked as to their being biased against unions.</p> <p>2. The improper exclusion of questions put to jurors on their examination is waived by failure to object to the collected jury.</p> <p>3. Subd. 5, sec. 4222, Stats. 1898 (providing that no action to recover damages for “ an injury to the person ” shall be maintained unless notice shall have been given as therein prescribed within one year after the. happening of the event causing such damages), refers to bodily injuries and does not apply to an action for loss of money and injury to the feelings caused by an unlawful conspiracy and the acts done pursuant thereto.</p> <p>4. Said subd. 6, sec. 4222, Stats. 1898, prescribes a limitation upon the remedy, not a condition of the right itself, and the objection that the notice was not given is waived if not taken by demurrer or answer.</p> <p>5. A complaint alleged that plaintiff had hired from one of the defendants, a liveryman, a hearse and carriage to be used at the funeral of plaintiff’s child, and had paid therefor; that both defendants, with a malicious design to humiliate and injure plaintiff, entered into an agreement to deprive him of the use of the hearse and carriage and to cause them to be taken away from his residence at about the instant they would be needed to convey the child’s body and attending friends to the grave; and that they carried out such design, thereby causing great mental distress to plaintiff, besides the loss of the amount paid by him. Held, that the action was one sounding in tort and not for breach of contract.</p> <p>6. A combination of liverymen to limit their services to persons patronizing them exclusively, and to monopolize the livery business in Milwaukee, including service for funerals and to carry prices to and maintain them at such a level as the combination might see fit to adopt, and to so stifle competition in regard to such business as to paralyze individual effort and compel every person, in order to obtain proper facilities for a funeral, to submit to the dictates of the combine, is unlawful as against public policy.</p> <p>7. Such a combination is none the less unlawful because existing under a self-imposed constitution and governed by by-laws and conducting its operations in a public or semi-public way; and the fact that they acted in accordance with their obligations to the association will constitute no protection to its members as regards liability for compensatory damages to a person specially injured by their overt acts done in pursuit of the purposes of the organization.</p> <p>8. A member of Such a liverymen’s association let a hearse and carriage to plaintiff for the funeral of his child, but, upon learning that the person in charge was an undertaker and liveryman doing an independent business, joined with the secretary of the association, in accordance with its rules, in sending the vehicles away from plaintiff’s house. This was done just as they were about to be used, regardless of the fact that such action would inevitably shock and greatly distress the plaintiff, in order to demonstrate the power of the association to punish independent liverymen and persons dealing with them. Held, that such acts were unlawful and rendered the wrongdoers liable for actual and also for exemplary damages.</p> <p>9. Even though a combination may not be in itself unlawful as an unreasonable interference with trade or individual freedom, yet overt, unlawful acts by two or more of its members acting by agreement to carry out its purpose, will render the combination, as to them, unlawful.</p> <p>10.Under sec. 3858, Stats. 1898, the right to a special verdict is absolute if the request therefor is made before any argument to the jury, and it is the duty of the trial court to prepare the form therefor. Where, therefore, a special verdict was seasonably requested and the court stated that counsel might prepare the questions, it was error, after the argument, when the request was i-enewed and the questions submitted for approval, to deny the request on the ground that it came too late.</p> <p>If. Denial of a request for a special verdict was not a material error where the facts were admitted or established by the evidence without reasonable controversy, leaving nothing to submit to the jury except the amount of the damages.</p> <p>12. Damages in a tort action are not divided into actual, compensatory, and exemplary. Actual damages and compensatory damages are synonymous terms, each covering all loss recoverable as a matter of right.</p> <p>13. Where recoverable damages include injury to the feelings, compensation therefor is a matter of right, and not, like punitive damages, in the discretion of the jury.</p> <p>14. There being no physical injury, recovery cannot be had for injury to feelings, where plaintiff hired, for the funeral of his child, a carriage and hearse of a member of a liverymen’s association, and such member and the secretary of the association ordered them away just as they were about to be used, because of rules of the association that members should not furnish vehicles where the undertaker in charge patronized nonunion liverymen.</p>

H. JohNSON, Circuit Judge. The parties to this action were partners as fruit and produce commission merchants in the city of Milwaukee. The business was not profitable, and the firm became insolvent. In January, 1897, the defendant brought an action to dissolve the partnership and to appoint a receiver.

<p> Taxation: Failure to collect: Charging town for taxes of village: Voluntary payment. </p> <p>A village had for some years collected taxes independently of the town within whose limits it was situated. The separate property statements of the town and village clerks being before the county hoard, and a doubt having arisen as to whether the village had been legally incorporated, the assessment of relative values was made separately for “ that part of the town not included in the village ” and “that part of the town included in the village,” and the state and county taxes were apportioned accordingly. The county clerk refused to deliver to the village clerk any statement of the taxes so apportioned to it, but attempted to deliver the same to the town clerk, and the result was that the village paid no part of said taxes for that year, nor were the same paid by the town. In the following year the county board charged back the said taxes to the town as an arrearage, with the penalty prescribed by sec. 1163, R. S. 1878, and the amount thereof was certified to the town clerk, who carried it into the tax roll, and it was collected and paid by the town. In an action by the town against the village to recover the amount so paid, it is held that the county board had no authority to„charge the arrearage of the village to the town, and, the village not having requested the town to pay it, the payment was purely voluntary and there can be no recovery.</p>

<p> Action: Notice: Condition precedent or limitation? Waiver: Pleading. </p> <p>1. A statute (in this case subd. 5, sec. 4222, Stats. 1898) requiring a notice to be given prior to the commencement of an action to enforce a common-law right does not prescribe a condition precedent to the cause of action, hut is in the nature of a statute of limitations; and the objection that the notice was not given is waived unless taken by answer or demurrer. Weed & G. Mfg. Co. v. Whitcomb, 101 Wis. 226, and Ryan v. C. & N. W. R. Co. 101 Wis. 506, so far as they hold to the contrary, overruled.</p> <p>2. In such a case the objection that a sufficient notice was not given is not raised by a general demurrer, even though a copy of the notice given is annexed to and made a part of the complaint.</p>

TI. JohNSON, Circuit Judge. Action by the receiver of the Commercial Bank of Milwaukee, Wisconsin, to enforce the agreement mentioned in the complaint. Such complaint is to the following effect: In 1894, the affairs of the Commercial Bank were, because of its insolvency, in part in the hands of a receiver in winding-up proceedings, and part in the hands of an assignee for the benefit of creditors.

H. JonnsoN, Circuit Judge. The complaint alleges that the parties to this action entered into an agreement whereby “the defendant agreed thereafter to sell and deliver to the plaintiff, at the city of Milwaukee, as the plaintiff should order and request, certain brands of imported beer ” (naming them); that defendant was the sole importer; “that, by the terms of the said agreement, the said defendant promised and agreed to deliver to the plaintiff, at Milwaukee, in such…

E. SutheblaNd, Judge. The city of the fourth class of South Milwaukee became such by virtue of sec. 98, ch. 287, Laws of 1897, it then being a village of more than 1,500 inhabitants. Held: and a new set elected, who claimed their right to occupy the office on the third Tuesday in April following such election.

H. Johnson, Circuit Judge. This is an action by one alleged partner against his co-partner to recover one half of the net losses of the partnership business.

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig-, Judge.</p> <p>Action for personal injuries. Plaintiff, while working for tbe. defendant in a structural iron works, was struck and severely injured by tbe end of a heavy iron beam, suspended several feet from the floor of the factory by a chain attached to a traveling crane, operated by fellow-servants to raise the beam to a sufficient height to enable them to move it to an overhead track running at right angles to that on which the crane was located, there to be moved by another appliance, called an “ air hoist,” to and through a riveting machine. The claim on the part of the plaintiff was that the crane was insufficient, out of repair, and unsuitable for the work with reasonable safety to employees required to labor in the vicinity thereof; that defendant had notice of the fact; that plaintiff was ignorant of it; that by reason of the use of the defective crane the iron beam was caused to make an unexpected movement whereby it reached to where plaintiff was working, in the due performance of his duties and in the exercise of reasonable care, and struck him, causing- the injury complained of. The claim on the part of the defendant was that the crane was in a reasonably safe condition; that the movement of the beam when it struck and injured plaintiff was caused by the lift chain not being attached to the center of the beam as regards weight, or the way the work was done by plaintiff’s fellow-servants, or by plaintiff’s negligence.</p> <p>The following facts were established without substantial controversy: Plaintiff and one or more associates constituted what was called the “ setting-up gang.” Their work consisted of setting up parts of iron beams or columns into proper forms, and fastening them together with bolts ready to be taken by the riveting gang to the riveting machine by means of the crane and air hoist. There was a pile of columns prepared, as aforesaid, lying on skids under an overhead track on which the crane was operated. The pile was from four to six feet high. Plaintiff was a few feet north of the west end of the pile, unscrewing a bolt in a column that lay on a car resting on a track that ran parallel with the pile. The riveting gang consisted of four persons. Their duty in moving a column from the pile to the air hoist was to place the crane over the center of the pile by moving it on the overhead track; then to engage a hook, attached to the crane pulley at the lower end of the lifting chain, in a chain placed around the center of the column; then, by drawing on the operating chain, to produce the necessary motive power to raise the- column free from the pile; and then, by pushing the chain toward the air-hoist track, cause the crane with its load to go to such track.</p> <p>On the occasion in question, two of the riveting gang, bjr operating the crane, lifted a heavy column, some eighteen feet long, from the pile. When the column was clear of the pile the west end swung north and in some way struck the plaintiff’s head and severely injured him. There was evidence to prove that one of the crane chains slipped, causing the column suddenly to drop and swing toward where plaintiff was working and strike him, or that the column swung over plaintiff and that the chain then slipped, allowing it to drop and strike him. There was also evidence that a crane on the same track, some days before, operated in the same way, and that the cause was a worn condition of some of the working parts of the device, or the loosening of a setscrew that held one of its wheels in position; that defendant had ample notice of those facts, and that they rendered such an accident as the one that occurred liable to happen. That evidence was disputed. There was also evidence tending to show that the crane in use at the time of the accident was in perfect condition, and that if there was negligence which caused the swinging or dropping of the iron beam,, with the consequences complained of, it was wholly in operating the crane. There was evidence that it was the duty of the riveting gang to steady the beam as it was hoisted, and to prevent it from, swinging, and that on the occasion in question that was neglected.</p> <p>At the close of the evidence defendant’s counsel moved the court for the direction of a verdict, which was denied, due exception being taken to the ruling. The jury found specially, in substance,—</p> <p>(1) Plaintiff was injured while in defendant’s employ by being struck on the head with an iron beam.</p> <p>(2) The crane by which the beam was hoisted was so defective as to be insufficient when operated with ordinary care.</p> <p>(3) Defendant knew, or ought to have known, of the fact found in question No. 2, a sufficient length of time before the accident to have prevented it.</p> <p>(4) Plaintiff, before the time of the accident, was not chargeable with knowledge of the defective condition of the crane. '</p> <p>(5) The defective condition of the crane was the sole proximate cause of the plaintiff’s injury.</p> <p>(6) The crane was operated with ordinary care.</p> <p>“We assess the plaintiff’s damages at $3,500.”</p> <p>There were several other findings, but they were not inconsistent with the foregoing, and are not material to the questions discussed in the opinion. Judgment was rendered on the verdict in plaintiff’s favor.</p>

<p>Appeal from a judgment of the circuit court for Calumet county: Geo. "W. Buenell, Circuit Judge.</p> <p>The complaint sets out that the plaintiff wás a cheese maker; that as such he hired out to one ELolzschuh for the .season of 1898; that he leased a certain dwelling house from the defendant for one year; that he removed his household effects from Sheboygan to Sherwood, in Calumet county, hut the defendant refused to give him possession of the rented premises; that he was unable to secure another house, and -was compelled to cancel his contract of hiring .and remove elsewhere; and that he suffered damage in the .sum of $190.</p> <p>The answer admits that there was talk about the leasing of the house, but alleges that it was conditional upon the defendant’s being able to secure possession from the tenant then in possession, and denies the other allegations of the complaint.</p> <p>On the trial the plaintiff was permitted to prove a partnership with Holzschuh by which they were to operate the .cheese factory for the season of 1898, and that, by reason of bis inability to secure the house in question, he had to relinquish. the business. Considerable testimony was given, against defendant’s objection, as to the profits of the business; and the court instructed the jury that the plaintiff was entitled to recover $1 that had been paid on the lease, $11.41 freight on his household goods from Sheboygan to Sherwood, $6 freight on his goods to Appleton, and for the profits of the cheese- factory, less what he earned elsewhere. The jury brought in a verdict for plaintiff for $212.90. Plaintiff’s counsel remitted therefrom, $22.90, and judgment was entered for plaintiff for $190 and costs. A motion for .a new trial was denied, and the defendant has appealed.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. BurNELl, Circuit Judge.</p>

<p> Municipal corporations: Appeal from disallowance of claim,: Waiver of defects in bond: When claim is “presented.” </p> <p>1. If the bond given on an appeal to the circuit court from a common council fails to comply with the requirements of the city charter, the city officers cannot by approving the bond waive the objection and confer jurisdiction of the subject matter upon the court.</p> <p>'2. The filing of a claim with the city clerk, not its actual introduction into the common council, is its “presentation” to the council for allowance, within the meaning of the provision of the Oshkosh city charter (Laws of 1891, ch. 59, subch. XXI, sec. 4), that failure of the council to pass upon such claim within sixty days after its presentation shall be deemed a disallowance thereof.</p>

<p> Municipal corporations: Injury from open hatchway in sidewalk: Negligence of lot-owner: Pleading: Contributory negligence. </p> <p>1. Although a lot-owner may construct and maintain a hatchway in the sidewalk, covering the opening when not in use so that it will not affect the safety of the walk, and when in use guarding it reasonably to prevent travelers in the exercise of ordinary care from stepping into it, yet 'if the city knowingly, or with reasonable means of knowledge, permits such opening to be negligently used, it is liable for injuries caused by such use.</p> <p>2. A complaint will not be held bad on demurrer, on the ground that it discloses contributory negligence, unless the facts leave no reasonable doubt on the question.</p> <p>3. In an action for injuries sustained by falling into an open hatchway in a sidewalk, a complaint stating that plaintiff, in "approaching the hatchway, traveled at such an angle with it that the opening was not in her line of vision till she was close upon it, and that she was free from negligence, is held not to show conclusively contributory negligence on plaintiff’s part.</p>

<p>Appeal from a judgment of the county court of Winnebago county: C. D. OlevelaND, Judge.</p> <p>This is an action against a mutual benefit association upon an accident indemnity policy of insurance. The defense insisted upon was that there was a breach of a warranty contained in the application for the policy. The evidence showed that the policy was issued September 14, 1891, and provided for the payment of benefits for total disability for labor, arising from injuries received by accident, in the sum of $10 per week, not exceeding fifty-two weeks in all. The application for the policy, and upon which it was issued, contained, among, other warranties, a warranty that the insured then had no other sick or. accident benefit insurance. The policy was issued in consideration of the payment of a membership fee of five dollars, and a monthly premium of one dollar, payable on the 1st day of each month, in advance. The plaintiff paid the membership fee and the premium falling due October 1st, but it was admitted that the plaintiff, at the time of his application and the issuance of the policy, had other accident indemnity insurance in force. Upon the 8th of October, 1891, the plaintiff received an accidental fall, and was seriously injured and incapacitated for labor until the 12th or 14th of January, 1898. On the 9th of October, 1891, the plaintiff caused to be sent to the defendant a notice of his injury, and stated therein that he was insured ^in no other accident company, which notice was received by the defendant within a few days after it was sent.</p> <p>On the 5th day of January, 1898, the plaintiff, through his attorneys, vsent a letter to the defendant, giving a statement of his injuries, and asking for blanks whereon to make proofs. To this letter the defendant replied, January 1,1898, as follows: “Yours of the 5th, in reference to the claim of H. Johnson, received. "We received notice of Mr. Johnson?s injury in the fore part of October. He allowed his policy to lapse on November 1st, for nonpayment of dues, and we subsequently had the claim investigated, and found that he was not totally disabled, so we do not think he is entitled to any indemnity. We also sent our agent a blank for proof, so we could more fully ascertain the cause of injury and if he was really totally disabled, but our agent did not have same filled out. J. D. Paddock, of the Mutual La Orosse Society, of Wisconsin, also went to Oshkosh to investigate this claim, and wrote us that he did not think that man was totally disabled, and therefore he was not entitled to benefits. It is quite evident that his injury did not produce the sickness that you claim he is suffering from. You state that he has been confined to his bed for eleven weeks. You were certainly misinformed in regard to this, as he has not been anything of the kind. We shall, however, look into the matter further, before we will say whether we shall pay his claim or not.”</p> <p>On the 15th of the same month the plaintiff caused to be forwarded final proofs, for the making of which he paid his attorneys the sum of five dollars. To this the defendant replied by letter as follows, on the Pith day of January, 189S: “Yours inclosing what you term final proofs for injury to Henry H. Morris, sometimes called Henry Johnson, received. We see that you make claim for injury after his policy lapsed. His policy lapsed November 1st for nonpayment of dues; so, if he is entitled to claim at all, it would only be up to November 1st. We have been in communication with the secretary of the La Crosse Mutual Aid Association, and he writes us that he will be in Oshkosh in a few days, and will investigate the claim, and advise us what he intends to do. We are sure that if he finds Mr. Morris, or Johnson, entitled to indemnity, that he will pay same, and if he does we shall also pay him his claim up to the time his policy was in force. We, of course, cannot allow him any indemnity after November 1st. Will advise you more in regard to this as soon as we hear from Mr. Paddock.”</p> <p>The claim not being paid, this action was commenced. At the close of the evidence the defendant moved that a verdict be directed in its favor, and the plaintiff moved for the direction of a verdict in his favor. The court directed a verdict for the plaintiff, with damages fixed at the sum of $144.70. No exception was taken to this ruling. After the verdict was rendered, the defendant moved to set the same aside and for a new trial, but the court entered judgment on the verdict for the plaintiff, and the defendant appeals.</p>

<p> Highways: Rights of abutting owners: Telephone companies: Right to construct lines: Statute construed: Additional servitude: Continuing trespass: Abatement of nuisance. </p> <p>1. Subject only to the public easement, the owner of land abutting on a street owns the fee to the center of the street, and neither the legislature nor municipal authorities can authorize the taking or incumbering of the street for purposes inconsistent with its public use without the consent of the owner, unless some provision for compensation has been made.</p> <p>2. Sec. 1778, Stats. 1898, giving to telegraph companies (including telephone companies) the right to construct and maintain their lines upon and along highways, grants no power to use the highway except as against the public, and was not intended to cut off or limit the rights of the actual owners of the land affected thereby.</p> <p>8. The compensation paid to the owners of land over which highways have been laid out since the enactment of the above-mentioned statute in 1848 (Terr. Laws of 1848, p. 257) did not cover the use to which such highways might be put by telegraph and telephone companies, their occupancy of portions of the highway being a permanent occupancy of the land, independent of the public use, for the direct benefit of private corporations, and not one which can fairly be said to have been within the contemplation of the parties. Huston v. Fort Atkinson, 56 Wis. 350, distinguished.</p> <p>4 The occupancy of a portion of a highway by the poles and other structures of a telephone line constitutes an additional servitude, as against the owner of the land, which cannot be imposed without his consent, nor without compensation if he requires it.</p> <p>5. The erection and maintenance of a telephone pole in the street in front of the show window of a store building, interfering with the proper use and enjoyment of the propei’ty, is a continuing trespass upon the land, and a nuisance which a court of -equity will abate.</p>

<p>Appeal from a judgment of the circuit court for "Winnebago county: Geo. W. Buehell, Circuit Judge.</p> <p>This is an action upon two promissory notes against John 'Strange, as maker, and the John Strcmge Paper Company, a corporation, as indorser. The corporation defended on the ground that the indorsement of the corporate name upon :said notes was made by John Strange in fraud of the corporation, and that the plaintiff was not a bona fide purchaser, but took the same with notice of the fraud.</p> <p>The evidence showed that the notes were in fact executed by the defendant John Strange at Menasha, Wisconsin, July 12, 1895, payable in form to the John Strange Paper Company, and were before delivery indorsed by John Strange in blank upon the back, “ John Stramye Paper Co., by John Strange, Prt.; ” that John Strange was in fact president of the corporation, but that the corporation received nothing for such indorsement, and that such indorsement was not authorized by the directors; that the notes were then delivered to one Charles R. Smith in payment oE the individual debt of John Strange; that the plaintiff corporation purchased the notes before maturity, at Iron River, of one M. II. Ballou, who then had the notes in his possession as apparent owner, and gave in exchange therefor J50 shares of its own capital stock, which consisted of one quarter of the entire capital stock of the corporation. The evidence tended to show that the corporate property of the plaintiff consisted of leased interests in an iron mine partially developed, and the machinery and supplies owned and used in connection therewith, and that it was reasonably worth $30,000 at the time of the purchase of the notes. The notes were not indorsed by Smith or by Ballou, and the evidence showed that the plaintiff’s directors who made the purchase had no knowledge at the time of the circumstances under which the notes were executed. The notes were duly presented for payment when due, and protested for nonpayment.</p> <p>The articles of incorporation of the defendant corporation prescribed the duties of the president to be, among other things, “ to have the general charge, control, and management of the affairs of the corporation, and also to sign all contracts and conveyances.”</p> <p>The jury found a special verdict, in answer to proper questions, to the effect that (1) the notes were obtained from the John Strange Paper Company through fraud; and (2) the directors of the plaintiff company purchased such notes in good faith. Upon this verdict, judgment was entered in favor of the plaintiff against both defendants for the sum of $6,211 36, being the principal and interest of the notes, and for costs; and from this judgment the defendant corporation appeals.</p> <p>contended, imter alia, that the special relation existing between John Strange, maker, and his principal, the defendant payee, disqualified the former to make the indorsements and negotiate the notes unless specially authorized so to do. Strange could not in his official character as president indorse his own notes and negotiate them and thus obtain the -money •upon them so as to cut off equities existing in favor of his principal, the defendant. Haywood v. Lincoln L. Go. 64 "Wis. 647; Cook v. Berlin W. M. Go. 43 Wis. 442;' Cumberland O. <& 1. Go. v. Sherman, 30 Barb. .553; 'Wal/worth Go. Bamk v. Farmers’ L. <& T. Go. 16 Wis. 658; H Y. I. Mime v. First Hat. Bamk, 39 Mich. 644; Story, Agency, § 210; Tiedeman, Comm. Paper, § 82; Glafiin v. Farmers’ & G. Bank, 25 N. Y. 293; 2 Randolph, Comm. Paper, § 1014; Lee Smith, 84 Mo. 304; Third Hat. Bank v. Marine L. Go. 44 Minn. 65; Stoiujh v. Ponca M. Go. 54 Neb. 500; Anderson v. Kissam, 35 Ped. Rep. 699; West St. L. S. Bank v. Shawnee Go. Bamk, 95 U. S. 557; Smith v. Los Angeles L.&L.O. Asso. 78 Cal. 289; Wilber v. Lynde, 49 Cal. 290. The notes with the indorse-ments showing the relation between the maker and the payee constitute notice to the plaintiff. H. Y. L Mine v. First Hat. Bamk, 39 Mich. 644; 1 Parsons, Notes & Bills, 259; 2 Randolph, Comm. Paper, § 1012; 1 Daniel, Neg. Inst. §§ 796, 799; Goodman v. Simonds, 20 How. 367; Ganajohmde Hat. Bamk v. LHefendorf, 123 N. Y. 191; Dams v. Seeley, 71 Mich. 209; Tiedeman, Comm. Paper, § 82; Glafiin v. Farmers’ & O. Bank, 25 N. Y. 293; Starim v. Genoa, 23 N. Y. 452; Titus v. Great Western T. Lioacl, 61 N. Y. 237; San Diego v. S. D. <& L. A. P. Go. 44 Cal. 112; Pickett v. School Dist. 25 Wis. 551; Bank of H. Y. H B. Asso. v. Am. D. T. Go. 143 N. Y. 564; Griffiths v. Kellogg, 39 Wis. 294. The plaintiff was guilty of bad faith. It wilfully shut its eyes against knowledge open and apparent to it of the infirmity of the paper. Oak Grove c& S. V. 0. Go. v. Foster, 7 N. M. 650; 1 Parsons, Notes & Bills, 259; 1 Daniel, Neg. Inst. §§ 196, 799, 801; 2 Randolph, Comm. Paper, § 1012; Few Fork I. Mine v. First Fat. Bcmk, 39 Mich. 644; Oheever v. P. S. <& L. F. P. Go. 72 Hun, 380; Chemical Fat. Bcmk v. Wagner, 93 Ky. 525; Drnis v. Boekingham I. Go. 89 Ya. 290; Wilson v. Me1/ropol-itcm ES B. Go. 120 N. Y. 145; Shaw v. Spencer, 100 Mass. 388; Goodman v. Simonds, 20 How. 367.</p>

<p>Appeal from a judgment of tbe circuit court for La Eay-ette county: Geo. CleheNtsoN, Circuit Judge.</p> <p>Equitable action to prevent members of a religious corporation from perverting tbe use of its property.</p> <p>Tbe issues made by the complaint were decided by tbe trial court substantially as follows:</p> <p>(1) On May 13, 1888, for some years theretofore, and ever since, tbe German Evangelical Synod of North America, has existed in Wisconsin and other states as a religious corporation separate and distinct from ail others, and has been and is made up of people whose beliefs on religious and church questions differ materially from those of any other church or sect, particularly from the belief of the members of the Lutheran or German Lutheran Church.</p> <p>(2) At the time stated Wisconsin was a district of such sjmod, having a form of government binding the different church societies composing it to the distinct belief of the sect known as the “ German Evangelical Church.”</p> <p>(3) On May 13th, aforesaid, at the town of Wayne, La Eay-ette county, Wisconsin, several persons named in the complaint, competent for the purpose, members of the German Evangelical Church and its Synod- of North America, for the purpose of forming a religious society of such sect and synod, made a certificate of organization for a church corporation, in good faith, intending to comply with the laws of this state on that subject, but failed to have the execution of such certificate’ acknowledged, though they caused the same to be recorded in the office of the register of deeds of La Fayette county May 29, 1888, and thereafter, on May 4, 1897, seven of the fifteen signers of the certificate duly acknowledged the same and caused the certificate thereof to be recorded in the margin of the record of the articles.</p> <p>(4) The day the articles of organization were signed the signers held their first meeting and duly elected trustees, and thereafter a corporate organization was maintained, the right to. be a corporation asserted, and the corporate franchise accordingly used down to the time of the commencement of this action, the defendants, except the defendant Schlicting, being then the trustees.</p> <p>(5) The corporation, till 1896, submitted to the government and direction of the German Evangelical Synod of North America, and recognized its authority as a superior governing power in all respects according to the ecclesiastical law of the synod. The Wayne church society, together with two other such organizations, was presided over during the time mentioned by ministers of the German Evangelical Church, designated for that purpose by the synod of the sect for North America, and took part, in the manner provided by the rules of the sect, in the district conferences and conventions of the church for the district of Wisconsin.</p> <p>(6) Substantially all members of the society, including plaintiffs and defendants, signed their names in a book kept for that purpose, as did the members of the other churches of the sect presided over by the same minister, as aforesaid, purporting thereby to adopt the synodical rules and regulations prescribed for such purposes. Such rules were not formally adopted by a vote of the members of the society or by any formal corporate act. The individual members of the society signed the book at the request of the minister as and for a submission of the society to the rules, and such rules were submitted to by the society and the members thereof up to about the year 1896.</p> <p>(7) The subordinate organizations of the German Evangelical Synod of North America are bound by its constitution and system of government to submit thereto in all matters, including the religious belief of the church and its forms and ceremonies, and not to employ a pastor other than a member of the German Evangelical Church, ordained by the synod of such church for North America, holding its •certificate of good character and behavior, and who shall subscribe a written promise to be faithful to the rules and ■regulations of such society and synod.</p> <p>(8) The society built a church edifice on lands described in the complaint, donated to the society for that purpose by Wilhelm Taufmann, one of the plaintiffs. The conveyance was made inform to the trustees of the German Evangelical St. Paul’s Society of the Town of "Wayne, La Payette County, Wisconsin, for the use of such society. It was accepted by the corporation, with knowledge of its provisions by substantially all the members of the society, and without objection as to the use declared. There was some talk by individual members of the church about the property being made free to all sects except Bo man Catholics, but that was never favored by the society as such.</p> <p>(9) The church building was paid for by money contributed by its members, was duly dedicated as property of a .society of the German Evangelical Synod of North America, .and was used in harmony therewith till some time in 1896, when, on account of difficulty about obtaining a minister to serve the society, defendant Sehlieting, a minister of the Lutheran Church and sect, materially different in its religious ■belief and distinct from that of the Wayne society, was employed to serve it for one year, at the end of which period •a majority of the members of the society again employed Sehlieting, the minority protesting on the ground that they ■desired and were entitled to have a minister in harmony with the society as a member of the German Evangelical Church Synod of North America. Pursuant to such employment, notwithstanding such protest, Sehlieting served the .society till interfered with by the temporary injunction .granted in this antion, and in so doing confined his ministrations in harmony with the sect to which he belonged, the ■German Lutheran Church, preaching the belief of such sect, which, as before indicated, was materially out of harmony with the religious belief of the German Evangelical Church of’ the Synod of North America, and assumed the right to, and did, prevent the use ■ of the church edifice by a minister of the society to which the church belonged.</p> <p>On such facts the court concluded:</p> <p>(1) The German Evangelical St. Paul’s Society of the Town of Wayne, La Payette County, Wisconsin, since May, 1888, has been a church corporation under the laws of this state, subject to the system of church government of the German Evangelical Synod of North America.</p> <p>(2) The title to the church edifice and property described' in the complaint is held in trust by the trustees of the Wayne society, for the use of such society as an organization of the German Evangelical Synod of North America,, and for the exclusive use of such society in harmony with the religious views of the German Evangelical Church and such synod of such sect.</p> <p>(3) Defendants having perverted the property of such society from its legitimate use, plaintiffs, though constituting a minority of the members of the society, have a right to such redress as will prevent the further perversion of its property, and as will compel the use of such property in conformity with the religious belief of the German Evangelical Church and the system of government of the synod of such church for the district in. which the society is located.</p> <p>(4) Plaintiffs are entitled to judgment accordingly and as prayed for in the complaint.</p> <p>Judgment was rendered in accordance with the aforesaid conclusions, from which this appeal was taken.</p> <p>To the point that property acquired for the religious uses of any church, sect, or denomination of Christians must be sacredly preserved for such particular uses and purposes, and that it may not be perverted to other uses, even by a majority of the members of the organization, they cited, besides cases cited in the opinion, Kreeker v. Shirey, 163 Pa. St. 534; White v. Biee, 112 Mich. 403; Knislcern v. Lutheran Ohurehes, 1 Sandf. Oh. 439; Boshi’s Appeal, 69 Pa. St. 462, 8 Am. Rep. 275; Fuehs v. Meisel, 102 Mich. 375; Bynclv. Menzies, 33 N. J. Law, 164; Auraeher v. Yerger, 90 Iowa, 558; Sehweilcer v. Ehisser, 146 Ill. 399; Btissie v. Brazzell, 128 Mo. 93; Sehlichier v. Keiter, 156 Pa. St. 119.</p>

<p> Attorney’s lien in tort action: Enforcement after compromise between parties: Remedies: Notice. </p> <p>1. Sec. 2691a, Stats. 1898 (providing that any person having or claiming a cause of action sounding in tort or for unliquidated damages may contract with any attorney to prosecute the same and give him a lien thereon as security for his fees, and that when notice of such agreement shall have been given to the opposite party or his attorney no settlement shall be valid as against said lien), does not authorize a splitting up of a cause of action without the consent of the wrongdoer or debtor and the maintenance- of an independent action by the attorney to recover his fees, but in case of a settlement between the parties without the consent of the attorney his remedy is in the original action, which he may prosecute to final judgment in his ow.n behalf as though no settlement had been made.</p> <p>2. A notice in such a case merely stating that the claimant had given the attorney a lien upon the cause of action as security for his fees is held insufficient to charge the person against whom the claim is made with notice of an assignment of a specific interest therein.</p>

<p>Appeal from a judgment of the circuit court for Grant ■county: Geo. ClemeNtsoN, Circuit Judge.</p> <p>On January 15, 1885, Mary Welch, wife of the defendant Patrick Welch, being in extremis, and holding the title to the home farm of 120 acres, a justice of the peace was called, who, in .the same room with the defendant Pa-trick Welch and all of the children of the parties, prepared a deed of •conveyance from the wife to her husband, Patrick Welch, for the expressed consideration of $500. The deed was then taken to the bed, and the wife’s mark placed thereon, the pen being in her fingers, and they held by her brother-in-law, who had no interest in the matter. The deed was then witnessed by the brother-in-law and the justice, a certificate •of acknowledgment subjoined, and was handed to the defendant Patrick. There was some evidence as to the defendant's paying the whole or a part of the consideration for the farm originally, and of the wife’s desire, previously expressed, to make some such conveyance. The court found complete incompetency on the part of the wife,— indeed, substantial unconsciousness of what was being done,— and held that the deed was never executed by her. She died the same night.</p> <p>The defendant Patrick Welch, both for many years before and many years afterwards, resided upon the farm, and five days afterwards, to wit, January 20, 1885, recorded the deed, and every since his wife’s death, either by personal occupancy or by leasing, has exercised complete possession, claiming title under the deed. On ETovember 6, 1886, he mortgaged the property, and one of the plaintiffs {Henry) received a part or the whole of the proceeds of such mortgage. Again, in September, 1895, he made a further mortgage. Both mortgages were promptly recorded in the register’s office. On October 12th, the defendant Patrick conveyed said premises to his daughter, Bridget Halstead, who was present at the time of the attempted execution of the deed from her mother, and who, in common with her brothers and sisters, had known all about that and subsequent transactions. The consideration of the deed to her was her agreement to pay certain sums of money to others, to support her father in a manner specified as long as he should live, to pay him annually certain sums of money, and to provide for his funeral and a monument.</p> <p>The wife, Mary "Welch, left surviving her six children, the plaintiffs Maggie McCann and Mary Harris being children by a former husband, and the other plaintiffs, together with Bridget Halstead, being children by the defendant Patrick. The plaintiffs McCann and Harris were not present at the time of the execution of the deed, nor are they shown to have had any actual knowledge with reference thereto, or with reference to their father’s control over the premises since then, having resided, both before and after their mother’s death, at a distance.</p> <p>The present action was for cancellation of the deed, and was commenced August 24, 1898. The judgment wholly canceled and set aside the deed from Mary Welch to Pat-rials, and canceled and set aside the deed from Pat/rials Welch to Bridget Halstead in so far as the latter purports to convey any greater estate than the life 'estate of the defendant Patriáis in four sixths thereof, but made no modification of her contract for his support, etc. From that judgment both defendants appeal.</p>

<p>Appeal from a judgment of tbe circuit court for Iowa county: Geo. CleMENtsoN, Circuit Judge.</p>

<p> Criminal law and practice: Murder: Premeditated design: Witnesses: Impeachment: Competency: Husband and wife: Evidence: Immaterial errors: Instructions to jury: Reasonable doubt: Improper remarks of counsel: Court and jury: Dangerous weapon: Manslaughter. </p> <p>1 Ina prosecution for murder, uncontradicted evidence that during a quarrel between the deceased and the defendant the latter was pushed downstairs, and that he immediately went around the house, procured an ax, returned with it to the second story, and struck the deceased, inflicting a mortal wound, is held to show ample time and opportunity for the formation of the premeditated design to kill which is necessary to murder in the first degree.</p> <p>2. A witness whom it is sought to impeach by showing a statement made out of court contradictory to his evidence must first be asked whether he did not make the statement, fixing with reasonable certainty time, place, and person to whom it is claimed to have been made; and if he does not admit it testimony may afterwards be introduced showing that such statement was made.</p> <p>3. Where a witness to a homicide had authorized her father to make a statement of the facts for publication, the newspaper article as published was inadmissible as foundation for impeachment, but she should have been asked directly as to her statements made to her father.</p> <p>4. In a prosecution for murder the wife of the accused is not a competent witness..</p> <p>5. After giving testimony as to the possibility or probability of temporary irresponsibility on the part of the defendant at the time of ■ the homicide, a medical witness, on being asked whether insanity which suddenly takes place in a man and enables him to inflict a blow sufficient to produce death, and then suddenly disappears, was not known as “convenient insanity,” replied that he had never heard that term. Held, that, although the question was objectionable, yet, in view of the answer, the error in permitting it to be answered was not prejudicial to the defendant.</p> <p>6. The refusal of an instruction to the effect that if a witness had intentionally misstated or concealed certain facts the jury were at liberty to disregard all her testimony, was not error, such instruction being incorrect without the qualifying clause “ unless such testimony was corroborated by other credible evidence.”</p> <p>7. Where a charge to the effect that if the jury found that a witness for the prosecution had been successfully impeached they might disregard her testimony, did not require the jury to find that she had intentionally falsified and did not add the qualifying clause above mentioned, such errors were not prejudicial to defendant.</p> <p>8. A request by the district attorney that the court instruct the jury, on the subject of reasonable doubt, “ that it is not every fanciful or shadowy doubt that a man could conjure up in his mind, but only such reasonable doubt as a reasonable man would have,” cannot be successfully assigned as error, it being a request which he had the right to make, and, so far as it went, a correct statement of the law.</p> <p>9.A failure to define reasonable doubt in the charge is not error where no specific instruction on the subject was asked on behalf of the plaintiff in error.</p> <p>10. Abusive remarks of the district attorney in his argument to the jury, as to the vicious personal appearance of the defendant, are criticised as likely to call for reversal in a close case, but held not prejudicial in this case, in view of the clear evidence of guilt and the absence of any showing that the attention of the trial court was called to them.</p> <p>11. Although the ax with which a homicide was committed by striking the deceased on the head should have been held, as matter of law, to have been a dangerous weapon within the meaning of sec. 4354, Stats. 1898, defining manslaughter in the third degree, yet to leave that question to the jury was not an error prejudicial to the defendant, where the jury found him guilty of murder in the first degree under instructions to consider and determine the question of premeditated design first, and to consider the question of manslaughter in the third degree only in case they found no such design.</p>

<p>(1) Contracts: Ambiguity: Court and jury. (2-5) Attorneys at law: Power of trustee to employ: Employment of assistant: Sharing of earnings by attorneys for joint plaintiffs: Incurring expenses.</p> <p>1. Where there is no ambiguity in the language of a contract as applied to the undisputed facts, it is the province of the court to interpret it; but where the subject matter of such contract and the circumstances under which it was made may properly be considered in order to correctly determine the meaning the parties gave to its language, and conflicting inferences may reasonably be drawn from such evidence in regard to such meaning, the proper inference should be determined by a jury, and that is true whether the ambiguity springs from uncertainty in the literal sense of the words themselves or from the application of plain words to the facts.</p> <p>2. Persons holding the legal title to one half interest in a judgment in trust for others, coupled with a power to control and collect it and divide the proceeds among those interested therein, impliedly possess power to employ attorneys and use all the usual and ordinary means to carry out the purposes of the trust, and to charge the expenses thereof against the fund recovered.</p> <p>•3. An attorney, at his own expense and risk, may employ an assistant to aid him in his professional work for a client, and charge such client with the reasonable value of the entire labor; and that does not militate against the rule that the relation of attorney and client does not imply authority to the former to employ another attorney at the client’s expense.</p> <p>■4. If one of two joint plaintiffs employ two attorneys to act jointly in his behalf in the prosecution of a cause, and the other employ one of such attorneys to act for him, an agreement between the attorneys to put their earnings into a common fund for equal distribution does not militate against the right of either to charge and collect of his client the full reasonable compensation for the professional labor undertaken by him for such client and performed personally and by the aid of his assistant and subordinate.</p> <p>-5. The relation of attorney and client, where the attorney has general authority over the subject of his employment, implies authority to such attorney to incur such expenses in the professional undertaking- as are usual and reasonably necessary, under all the circumstances, to carry out the object of the employment.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p> Railroads: Injury to conductor: Negligence of co-employee: “ Operating” train: Statute construed. </p> <p>Plaintiff, a railway conductor while standing by the door of a freight oar which, in pursuance of his duty, he had caused to be put into his train and drawn up before the freight depot to be unloaded, was struck and injured by a long, heavy bale of felt carelessly and negligently handled by co-employees engaged in unloading the car. It was his duty to see that the door of the car was closed and fastened when the unloading was completed, and to signal the engineer, and he was also watching an open switch connecting with the main line. Held, that at the time of the accident he was not engaged in “operating, running, riding upon, or switching” the train, engine, or car, within the meaning of sec. 1816, Stats. 1898, providing that a railway employee so engaged, in the performance of his duty, may recover for injuries caused by the negligence of a co-employee in the discharge of, or in failing to discharge, his duties. Dodge and Winslow, JJ., dissent.</p>

0. Ludwig, Judge. This action was brought by the plaintiff to restrain the city of Milwaukee and its contractors from grading an alley at the rear of his lot in Muskego Avenue Heights, in the Eleventh ward of the city, said lot being described as lot 15 of block 1, and having a frontage on the alley of 28.23 feet. The alley runs south from Burnham street to a point about 110 feet from the south line of the block, and then turns west, and opens into Eighteenth avenue.

ClemeNtsoN, Circuit Judge. Upon an affidavit complying with sec. 2968, Stats. 1898, showing the whole amount to be unsatisfied, the circuit court, on October 20,1898, refused leave for execution upon a judgment of a justice of the peace dated January 19,1881, and duly transcripted and docketed to the circuit court. From such order the plaintiffs appeal.

<p> Counties: Claims: Statement: Disallowance: Appeal: Fish and game wardens. </p> <p>1. On an appeal from a county board’s disallowance of a claim the county cannot be forced to accept and treat as the original statement of the claim what purports to be a copy thereof and is so designated in the notice of appeal, without proof of loss or destruction of the original and that the alleged copy is a true copy.</p> <p>5. An account for services as local fish and game warden, containing numerous items consisting merely of dates and the names of places, without description of the nature of the services charged for, is not such a statement of the claim as is required by sec. 677, Stats. 1898.</p> <p>5. Sec. 677, Stats. 1898, providing for the making and filing of written statements as therein prescribed of claims against counties, and that “no such claim . . . shall be acted upon or considered by any county board unless such statement shall have been so made and filed,” is mandatory and must be substantially complied with.</p> <p>4. If the statement of a claim against a county as filed is not in substantial compliance with said sec. 677, it is insufficient as a complaint in the circuit court upon an appeal from the disallowance of the claim.</p> <p>5. Although the record of the proceedings of the county board states that a claim was “ disallowed ” for the reason that it was not properly itemized, yet, it being obvious that the board did not pass upon the merits of the claim but merely suspended action until it should be properly itemized, there was no disallowance from which an appeal could be taken.</p> <p>■6. Whether, where no fund has been set apart by the county board for the purpose of enforcing the fish and game law, from which, under sec. 1498d, Stats. 1898, deputy wardens might be'paid, the state fish and game warden had power, by appointing deputy wardens pursuant to sec. 1498b, to force an indebtedness or liability against the county, is doubted but not decided. •</p>

Clementson, Circuit Judge. This is an action on a judgment note given September 9, 1896, for $1,360, by the defendants under the firm name of Johnson, Eelland & Co. to the Wagg-Anderson Woolen Company, an Illinois corporation, and afterwards purchased at judicial sale by the plaintiffs as copartners. One branch of the case has been in this court before upon an intervention proceeding, and will be found reported in 101 Wis. 385.

E. WyMAn, Circuit Judge. An order was entered dismissing tbe action and for judgment in defendant’s favor for costs, because plaintiff, after the reversaron appeal to tbis court, of a judgment rendered in bis favor, failed to bring tbe cause again to trial in tbe circuit court witbin one year. Judgment was entered accordingly, from wbicb this appeal was taken.

MaNdajmus to J. C. Ludwig, Judge of the Superior Court ■of Mihvaukee County. A few days after tbe suit of Sehwcurtzburg v. The Mayor and Aldermen of the City of MilwauTc.ee, which is quite fully described in the opinion in the case of State ex rel.

B. WymaN, Circuit Judge. . Action by plaintiff to recover his damages for the same injury to his wife which was under consideration in Oawley v. La Crosse City B. Co. 101 Wis. 145. At the close of the plaintiff’s evidence the court directed a verdict for the defendant, from judgment on which plaintiff appeals.

<p>Mortgages: Setting aside foreclosure sale: Inadequacy of price due to mistahe: Discretion.</p> <p>"While mere inadequacy of price is not a sufficient ground for setting aside a foreclosure sale, such inadequacy may he considered in connection with any mistake, inadvertence, misapprehension, fraud, or misconduct which prevented persons from bidding at the sale a much larger price; and the setting aside of the sale under such circumstances, being a matter resting in the sound discretion of the trial court, will not be disturbed except for an abuse of such discretion.</p>

M. Webb, Circuit Judge. This is an action upon an account for moneys advanced, merchandise sold, and labor performed by the plaintiff for the defendant between the 12th day of January, 1893, and the 2d day of February, 1891. The defendant by answer denied any indebtedness, and alleged by way of counterclaim an account in his own favor against the plaintiff for money advanced and property sold to an amount exceeding the plaintiff’s claim, and demanded judgment therefor.

<p>Appeal from a judgment of the circuit court for Dunn county: E. W. Helms, Circuit Judge.</p> <p>Action of replevin to recover a quantity of cigars. The question at issue was whether a transaction between plaintiff and defendant’s assignor, Carr, regarding some cigars, was a sale to the latter or a consignment of property to him to be sold on plaintiff’s account.</p> <p>The testimony of Macdonald, who did the business for plaintiff, omitting his conclusions, is in substance as follows: ‘ I said to Carr, I have some cigars I would like to call your attention to. He said he did not wish to buy. I said, I will ship the cigars and you can pay each time I come around for what you have sold-. I said, I will send a memorandum from the house, of the goods, at such and such a figure, and you can turn oyer to me each time I come $33 per thousand for the amount sold. I will pay the freight if you do not realize enough to do so, and you may send the goods back any time if they do not sell well or are in the way, and I will take them back if they do not sell satisfactory to me. I do not want you to buy anything or to sell to you anything. I just ask you to display the goods and sell them for the house. They will belong to the house all the time. All you have to do is to give us our end of what is disposed of.’</p> <p>Carr testified, regarding the conversation with JVIaedonald, in substance as follows: ‘Macdonald said he wanted to sell me some cigars. I said, I do.not want any. He said, If you will take twenty-five hundred I will make the terms $33 per thousand, payable every sixty days when I come around, for what you have sold. I said, You can ship them. He thanked me for the order and went out. Nothing was said by Mac-donald about the goods belonging to plaintiff till sold or a bill or memorandum being sent, or my paying plaintiff his end and keeping mine, or that he did not want me to buy the cigars, that he wanted me to put them on sale at my store. He said, I will take the cigars back if you wish me to, if they do not sell satisfactory. I wTas to have the right to return them. I was not to pay for them if they did not sell. I assumed no obligation except to pay $33 per thousand for the cigars sold.’</p> <p>The cigars were billed in manner following:</p> <p>“ St. Paul, Minn., Dec. 20, 1897.</p> <p>“ Gf. T. Carr, Menomonie, Wis.</p> <p>Bought of W. S. Conrad,</p> <p>Importers and Jobbers of Pine Cigars,</p> <p>Terms: 341 Jackson St.</p> <p>2,500 ' Stag Party ’ Cigars, $33. $82.50.”</p> <p>The court submitted to the jury to find .whether the agreement was that the cigars should be paid for out of the money received for them when sold by Carr. The finding was in the affirmative. Hpon the evidence and the fact so found, the court decided that the transaction between Carr and plaintiff’s agent was an agreement for a consignment of cigars to the former, to be sold on plaintiff’s account; that no property interest in the cigars, conditional or otherwise, ever passed to Carr; and that plaintiff was entitled to judgment for the property in controversy,— the cigars in Carr’s possession unsold at the time he made an assignment to the defendant for the benefit of creditors, and that were delivered to the defendant under such assignment. The defendant appealed.</p>

<p>Appeal from an order of the circuit court for Pierce county: A. J. Vinje, Judge.</p> <p>Action to enforce the statutory liability of a stockholder of a bank to creditors under the laws of Minnesota.</p> <p>The complaint stated, in effect, as follows: The Farmers’ & Merchants’ State Bank, a banking corporation organized under the laws of and located in the state of Minnesota and there engaged in business from June 6, 1888, till June 20,. 1893, on the last-named date, pursuant to the laws of such state, made an assignment for the benefit of its creditors, which assignment was fully perfected, and such proceedings were thereafter had in administering it that the assets of the bank were converted into money and the net proceeds thereof distributed to the creditors, without paying them in full by about $80,000. The capital stock of the bank was $75,000.-Each individual stockholder was named in the complaint, with the amount of stock owned by him, defendant, Mary A. Gxiy, being one of such stockholders and said to be the owner of nineteen shares of the par value of $100 each. She resides in Pierce county, Wisconsin.</p> <p>It was further alleged in the complaint, in effect, that by the laws of the state of Minnesota every person, on becoming a stockholder of a bank organized under its laws, in proportion to his interest, succeeds to the rights and becomes subject to the liabilities of his predecessor, and that the individual liabilities of stockholders to its creditors extends to double the amount of the stock and continues, as to any stockholder who may sell or transfer his stock, till the exphation of one year after such sale or transfer; that a creditor of a bank, desiring to enforce the individual liability of its stockholders for the payment of his claim, may file his complaint in an action instituted for that purpose in any court in Minnesota having jurisdiction of the subject, and that thereupon such court is required to proceed “ as in other cases, and when necessary to cause an account to be taken of the property and debts due to and from the corporation, and appoint one or more receivers; ” that there is a provision of statute, however, that in certain circumstances therein named the court may proceed to enforce the stockholders’ liability without appointing a receiver and by its judgment as in other oases. The complaint further stated, in effect, that the statutes of Minnesota provide that in a creditors’ action to enforce the statutory liabilities of bank stockholders the court may require all the creditors of the bank to become parties to the action and exhibit their claims within a reasonable time fixed by the court, not less than six months from the date of the first publication of the order to that effect, or be barred from all the benefits of such liabilities.</p> <p>The complaint further stated, in effect, that according to the judicial system established in Minnesota by its highest judicial tribunal (citing the various cases that have been decided by such tribunal), the liability of stockholders of a bank organized under the laws of that state, to its creditors, must be enforced by first instituting an action, at the domicile of the corporation, against the corporation and all of its stockholders within the jurisdiction of the court, on behalf of all creditors of such corporation who shall participate in the action; that the proper method of proceeding in the action is to cause a judgment to be rendered in favor of each creditor for the amount owing him from the bank, and a judgment against each stockholder over whom the court shall have been able to obtain jurisdiction for the maximum amount of his liability, and to enforce the judgment as to .such liabilities rata, as far as practicable, in order to. realize a sufficient amount of money to pay all indebtedness of the bank established in the action to the extent of the full amount of such liabilities, and to cause a receiver to be appointed in the action to collect the judgments and distribute the proceeds and to enforce the liabilities of other stockholders residing in jurisdictions outside of that in which the judgment is rendered. Further, it was stated to be the law of Minnesota, as held by its highest judicial tribunal, and as indicated in the adjudications mentioned, that the statutory liability of stockholders is several and that a judgment ■against a part of them does not release others against whom no judgment is or can be rendered in the action; that if any of the stockholders are omitted from the first action because the court cannot acquire jurisdiction of them for any cause, an action ancillary to such first action, in any jurisdiction in which such stockholders may be found, may be brought; that an action to enforce such a liability is upon contract; that the judgment in the original action is binding on all stockholders, whether parties thereto or not, as to the amount due to creditors of the bank, and on all creditors entitled to the benefits of the stockholders’ liability to creditors, and as to the respective rights of the particular creditors; that a ■stockholder of a bank organized under the laws of Minnesota, wherever he may reside, is bound by its laws, and his liability in accordance therewith may be enforced wherever he may be found and without any judgment there obtained against the corporation, if it be a place where no such judgment is possible.</p> <p>The complaint further alleged, in effect, that in January, 1894, an action was commenced, in a district court for the state of Minnesota having jurisdiction of the subject, against the banking corporation named and its stockholders, by a creditor of such bank, suing in his own behalf and that of all others who might come in and participate in the action, to enforce the liability of such stockholders to such creditors, and that such proceedings were thereafter had in such action that -the amount of the indebtedness of the bank was adjudicated according to the laws and judicial system of Minnesota, and that the total amount collectible from all the stockholders of the bank, aside from the defendant, has been judicially determined to be, and in fact is, less than sufficient to pay such indebtedness by over $80,000; that defendant, being a nonresident stockholder, residing in Pierce county, Wisconsin, could not be reached in such action, and that- she is liable to the creditors entitled to participate in the benefits of the stockholders’ liability to the extent of $3,800, with interest thereon from April 28,1897. There were further allegations in the complaint showing that the receiver appointed in the creditors’ action at the domicile of the corporation, and all the creditors whose claims were established in such action and entitled to participate in the benefits of the stockholders’ liability, are joined as plaintiffs in this action, that they came to this state after having exhausted all remedies at the domicile of the corporation for the satisfaction of their claims, that they instituted this action against the defendant stockholder in this state because she could not be reached in the original action, and that this action is ancillary to the action brought at the home of the corporation.</p> <p>The prayer for judgment is: (1) That defendant be required to pay $3,800 as her liability to plaintiffs, with interest from April 28, 1897, at the rate of seven per cent, per annum, with costs and disbursements, and that plaintiffs have execution therefor. (2) That plaintiff A. 0. Finney be appointed receiver to collect the judgment and distribute the proceeds among the plaintiffs according to their respective rights in the fund. (3) That the court award such further judgment or order as may be necessary to enforce such liability of the defendant, and grant such further relief as the court can grant in the premises.</p> <p>To that complaint the defendant interposed a demurrer upon the ground, among others, that it fails to state facts sufficient to constitute a cause of action. The demurrer was overruled, and from the order accordingly entered this appeal is taken.</p> <p>to the point that the action could not be maintained, cited, besides cases cited in the opinion, Faribault v. Misener, 20 Minn. 396; Sedgwick, Stat. & Const. Law (2d ed.), 344; Lowry v, Lnmam, 46 N. Y. 119; Nat. Bank v. Dillingham, 147 N. Y. 603; Post cS¡ Go. v. T., G. <& St. L. R. Go. 144 Mass. 341; Fowler v. Lamson, 146 Ill. 472; Young v. Farwell, 139 Ill. 326; Hancock Nat. Bank v. Farnum, 20 E. I 466; Ferguson v. Sherman, 116 Cal. 169; Fourth Nat. Ba/nk v. Fra/noldyn, 120 IT. S. 747; Grip-pen v. Laighton, 44 Atl. Eep. 538; Stoddard v. Lum, 159 N. Y. 265; 12 Ency. of El. & Pr. 141; 34 L. E. A. 752, 754, 763, 766.</p> <p>They contended, inter alia, that the statutory liability of stockholders to creditors is a substantive right of action arising on contract. Bagley v. Tyler, 43 Mo. App. 195, 202; Dennis v. Superior Court, 91 Cal. 548; Hodgson v. Oheever, 8 Mo. App. 318, 321; Ouerney v. Moore, 131 Mo. 650, 672, 6T3; Tinker v. Van Dyke, 1 Flip. 521, 532; Hoba/rt v. Johnson, 19 Blatch. 359, 361; Flash v. Gonn, 109 U. S. 371; Western Mat. Bank v. Lawrence, 117 Mich. 669; Morawetz, Priv. Corp. §§ 870, 875; Thomp. Oorp. §§ 3056, 3059; Cook, Stock, § 223; Bell v. Farwell, 176 Ill. 489; Hancock Nat. Bank v. Ellis, 172 Mass. 39; First Nat. Bank v. Gustin Minerva G. M. Go. 42 Minn. 327; Hencke v. Twomey, 58 Minn. 550; Hanson v. Dmison, 73 Minn. 454; Goleman v. White, 14 Wis. 700; Merchants’ Bank v. Ghandler, 19 Wis. 435; Gianella v. Bigelow, 96 Wis. 185, 194; Williams v. Meloy, 97 Wis. 561, 564. A right of action arising on a statute is just as enforceable in another state as a right of action under the common law. Dennick v. Railroad Go. 103 U. S. 11; Bigelow v. Nickerson, 70 Fed. Rep. 114; Gremes v. Neal, 57 Fed. Rep. 816. The principles applied in those cases apply with equal force to-the statutes enacting liability of stockholders. The courts go so far as to say that an action for their enforcement is not entertained because of the cpmity of states, but because of the willingness of the court to enforce a valid contract. Bell v. Farwell, 176 Ill. 489; Western Nat. Bank v. Reckless, 96 Fed. Rep. 70; Lowry v. Inman, 46 N. T. 119. This action, then, is really one to enforce a valid contract, as much so as if it were a promissory note made in the state of Minnesota. And to refuse to entertain it is a refusal to enforce a contract simply because it was made in another state and to-refuse to recognize the validity of a solemn and just contract. . The doctrine of comity is applicable to a cause of action arising on the statute of another state. Northern _P. R. Go. v. Mase, 63 Fed. Rep. 114; Herrick v. M. (& St. L. R. Go. 31 Minn. 11; Northern P. R. Go. v. Babcock, 154 U. S. 190; Midland Go. v. Broat, 50 Minn. 562,567. The principle applies with equal force in actions to enforce the statutory liability of stockholders. Guykendall v. Miles, 10 Fed. Rep. 342; Bagley v. Tyler, 43 Mo. App. 195; Auer v. Lombard, 72 Fed. Rep. 209. This action, is ancillary to the decree entered in the Minnesota court; the proceedings there had are binding on the stockholders everywhere; and to refuse to maintain this action is to refuse to give due faith and credit to the judgment of a sister state. Harmon v. Hunt, 116 N. 0. 678; Baltimore dé O. R. Go. v. Smith, 54 Ohio St. 562, 564; Guerney v. Moore, 131 Mo. 650; Merchants’ Hat. Bcmk v. Chandler, 19 Wis. 434; Powell v. Oregonicm R. Go. 38 Fed. Rep. 181; Stephens v. Fox, 83 N. Y. 313; Alexander v. Donohoe, 143 N. Y. 203; Howard v. Glenn, 85 Ga. 238; Great Western T. Go. v. Gray, 122 Ill. 630; Hawkins v. Glenn, 131 U. S. 319, 329, 332; Glenn v. Liggett, 135 U. S. 533; Hichols v. Stevens, 123 Mo. 96; Holland v. Duluth 1. M. <& D. Go. 68 Minn. 324, 331; Hanson v. Davison, 73 Minn. 454; Hale v. Hcurdon, 95 Fed. Rep. 747; Huntington v. Attrill, 146 U. S. 657; Pelzer Mfg. Go. v. Hamburg-Bremen F. Ins. Go. 71 Fed. Rep. 826; Gentml T. Co. v. O., 0. & A. R. Go. 65 Fed. Rep. 257.</p>

<p> Equity: Enforcing judgment after settlement: Injunction: Remedy at law: Waiver. </p> <p>1. An attempt to enforce a judgment in violation of an agreement for the settlement thereof which has been consummated by the judgment debtor by making payments as agreed, is inequitable and fraudulent, and a court of equity will restrain such enforcement and require the removal of the cloud caused by such judgment on the title to land.</p> <p>2. In an equitable action the objection that there is an adequate remedy at law is waived by service of an answer in which such objection is not raised.</p>

<p>Error to review a judgment of the circuit court for St. Croix county: E. W. Helms, Circuit Judge.</p>

<p>Appeal from an order of the circuit court for Dane county: R. G. SiebeCKee, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Dane county: R. Gr. Siebecker, Circuit Judge.</p>

<p> Support of person since deceased: Joint ownership of claim: Court and jury: Special verdict: Appeal: Record: Contents of excluded documents: Evidence: Immaterial error. </p> <p>1. In an action to recover for the support of a person since deceased the evidence of the mutual participation by the plaintiff and his mother in maintaining the household wherein the deceased was supported is held sufficient to take to the jury the question whether they jointly participated in furnishing the support.</p> <p>2. The form of a question in a special verdict is very largely in the discretion of the court; and if that adopted fairly calls for the conclusion of the jury upon the material issue of fact, the discretion of the court should not be disturbed.</p> <p>3. The unities of interest, time, title, and possession in the ownership of an indebtedness for support result by operation of law from a joint participation in furnishing the support during the period covered by the claim. A question of a special verdict whether the parties participated jointly in furnishing the support was therefore sufficient to cover the question of joint ownership of the claim.</p> <p>4. A refusal to receive documents in evidence cannot be held error if the record on appeal contains no authentic information as to their contents.</p> <p>5. In an action against an estate to recover for support furnished the deceased in her lifetime, the estate is held not to have been prejudiced by the admission of evidence tending generally to show that the deceased had had trouble with her relatives just prior to the time when the support commenced.</p>

<p>Appeal from a judgment of the circuit court for Dane county: R. Gr. SiebecKee, Circuit Judge.</p> <p>They argued, among other things, that exemplary damages should not be awarded in cases of this character. Gillen v. M., St. P. db S. S. M. R. Go. 91 Wis. 633; IHiettvplaoe v. H. P. R. Go. 84 Wis. 412; Atehison, T. db S. F. R. Go. v. Rogue, 50 Kan. 40; Van Pusan v. G T. R. Go. 97 Mich. 439; Hamilton v. Third Ave. R. Go. 53 N. T 25, 29; Pine v. St. Paul City R. Go. 50 Minn. 144; Fitzgerald v. G., R. 1. db P. R. Go. 50 Iowa, 79; Rose v. Wilmington & W. R. Go. 106 N. O. 170; Gibson v. F. TV. db G. R. Go. SO Eed. Rep. 904; Paine v. G., R. I. db P. R. Go. 45 Iowa, 569; Booth, Street Railway Law, 558. By his un-Avillingness to take back the money or to make any explanation as to the ancient coin, and by daring the conductor to touch him, the plaintiff showed a willingness to annoy the conductor and perhaps set a trap, which the jury had a right to take into consideration in determining how deeply he was wounded or disgraced, and in determining whether the company should be punished by exemplary damages. His refusal to tender another coin when he had it in his hand was also significant. Van Busan v. G. T. R. Go. 97 Mich. 439; Ginei/vnati, H. & D. R. Go. v. Gole, 29 Ohio St. 126; Gibson v. E. T., V. db G. R. Go. 30 Eed. Rep. 904, 905; Scott v. G. P., N. db E. R. R. Go. 53 Hun, 414; Atehison, T. db S. F. R. Go. v. Hogue, 50 Kan. 40; Yorton v. M., L. S. db W. R. Go. 54 Wis. 234, 241; Hew Orleans db H. E. R. Go. v. Jopes, 142 U. S. 18.</p>

<p>Appeal from a judgment of the circuit court for Dane county: R. Gr. SiebeoKER, Circuit Judge.</p> <p>This is an action for the alleged wrongful diversion of surface water, and the discharging of the same in one body upon the plaintiff’s land. The facts were practically undisputed, and appeared from the evidence as follows:</p> <p>In the year 1871 the defendant’s railway was built, running in a general southeasterly and northwesterly direction through section 26, township 8, range 9, in the county of Dane, state of Wisconsin. The plaintiff has lands upon both sides-of said right of way in said section, his house being situated upon a small parcel of land upon the southwest side of said right of way. The plaintiff’s lands are lower than the roadbed of the railway where it passes through them, the roadbed being originally constructed upon a high embankment. Immediately to the southeast of the plaintiff’s lands, there is a rise in the ground, through which the defendant’s roadbed is situated in a cut; and further to the southeast, and about a half a mile distant from the plaintiff’s land, there is again low ground on both sides of the railway track, where there was an embankment of several feet, made at the .time of the original construction of the road. At this place the flow of surface water was naturally from the southwest to the northeast, and directly across the defendant’s right of way, and a culvert was put in at the time of the original construction of the road, which allowed such surface water which came upon the right of way from the southwest, to pass under the track to still lower grounds in the northeast.</p> <p>In 1896 the defendant company constructed a new roadbed and, for the purpose of making more easy the grade of its road, lowered the entire roadbed, at the point where said surface waters had formerly been conducted under the track, several feet, so that such surface waters could no longer flow to the northeast except by flowing over the rails of the track. The roadbed was also lowered for a long distance to the northwest, past the plaintiff’s lands, and the cut made deeper, and a ditch made on the southwest side of the roadbed, the result of which was that the surface water flowed along the southwest side of the track in said ditch, through the cut, until it reached a point on the right of way immediately opposite the plaintiff’s land, where it spread out upon the surface of the ground, and a part of it ran into the plaintiff’s premises, carrying some sand and gravel, and injuring about an acre of land. In its course this ditch ran through an old “ borrow pit ” upon the right, of way, which was somewhat lower than the bottom of the ditch. A small ditch was also put along the top of the embankment on the southwest side of the track, to prevent water flowing down the side of the embankment, and the water from this ditch joined that of the first-mentioned ditch at the northwest end of the cut.</p> <p>Before any testimony was taken, the defendant demurred ore tenus to the complaint, but the demurrer was overruled. At the close of the evidence the defendant moved that a verdict in its favor be directed, and the court submitted to the jury simply the question of damages, which the jury found to be $150. A motion for a new trial was overruled, and judgment entered in favor of the plaintiff for the- damages found by the jury, with costs; from which judgment this appeal is taken.</p>

<p>Appeal from an order of the circuit court for Dane county: R. G. SiebeoKeb, Circuit Judge.</p> <p>Proceedings for the appointment of a guardian of two minor children of Frances McChesney and the petitioner. The marriage took place in 1887. A divorce was granted in 1894. There were two infant girls, Edna Mabel and Yiola Blanche, and an infant boy who died subsequent to the divorce, the custody of whom was awarded to the mother, the petitioner being required to pay to her $200 per year during their minority for their support. In 1898 Mrs. McChesney remarried to "William Lappley, with whom she resided until March 31, 1899, when she died. Since such death the two girls have resided on a farm with their grandfather and grandmother, Mr. G. De Bower and Mary De Bower. The petitioner remarried in 1896, since which time he has maintained a home on a farm in Dane county, Wisconsin. The matters stated were set forth in the petition, with allegations to the effect that the De Bowers are unsuitable on account of their age to have the custody of the children and that the petitioner has a good home where the children can be suitably provided for and maintained. The De Bowers were made parties to the proceedings and answered, raising the question whether the petitioner is a suitable person to have the care and custody of the children, and whether the allegations as to their unsuitableness for the trust are true, and whether it is for the best interests of the children to remain with them. The answer contained a prayer for the appointment of Mrs. De Bower as guardian of the children with the right to the custody of their persons and property during their minority.</p> <p>The evidence was to the effect, and the court found, that for some years before the divorce the petitioner’s conduct toward his wife was exceedingly cruel and inhuman; that he sustained, for a long period of time, immoral relations with a young servant girl in his family, and solicited other females, including his wife’s mother, to submit to his adulterous desires, and that when the separation between himself and wife occurred he expelled her and her children from his house by physical force and compelled them to go, on a cold winter day, to a neighbor’s house for protection, and that the circumstances of the occurrence evinced an entire absence on his part of natural parental feeling. The evidence further showed, and the court found, that from the time of the divorce to the commencement of these proceedings, MoOhesney paid but very little attention to his children; that he had been accustomed to meet them on the highway and not speak to or recognize them in any way, that he never showed any desire for their custody and little or no desire for their company or to treat them as his children in any way till these proceedings were commenced; that when his little boy was sick unto death he was notified of the fact by the mother in order that he might see his son before death occurred; and that after the child died he was notified of the funeral, but that he entirely ignored both of such occurrences, paying no attention to the funeral of the boy though he knew of its occurrence and was in the vicinity where he could readily have attended.</p> <p>The only evidence to palliate MeOhesney's conduct in regard to his children, as found by the court, was that on ono or two occasions during the life of the mother she indicated that she preferred that he should not have anything to do with the children, and that the Be Boioers, on one or two occasions, repelled his advances in regard to recognizing the children in a fatherly way, and indicated displeasure because he noticed them. There was further evidence, and the court found, that the petitioner is a man of considerable property and has a good home. The evidence further showed that the petitioner’s conduct since his second marriage, aside from that toward his children, has been proper; and that he enjoys the confidence and respect of his neighbors.</p> <p>The evidence further showed, and the court found, that for a considerable time before the death of the mother the children resided with the Be Bowers; that it was the mother’s desire, as indicated in her last will and testament, that her mother, Mrs. Be Bower, should have the care of the girls during their minority; that by reason of the wish so expressed the children, from the death of their mother, have resided with their grandmother and are very much attached to her and to their grandfather ' also, and that the grandparents are very much attached to the children; that the grandparents have an excellent home and are of sufficient ability in every way to properly care for the children during their minority, and that the children are desirous of remaining with the grandparents.</p> <p>On the facts found as indicated and the evidence the court denied the prayer of the petitioner and granted the prayer of the respondents. An order was thereupon entered accordingly appointing Mrs. Be Bower guardian of the children to have the custody of their persons and property upon her giving a bond as indicated in the order. The petitioner appealed.</p>

G. Siebecker, Circuit Judge. Action to recover damages for injury to a horse. The plaintiff is a livery-stable keeper in the city of Portage. In August, 1898, the defendant hired a team from him to drive to Montello, a distance of about twenty-two miles. He made the trip, and returned the team on the evening of the following day. When returned, one of the horses was foundered. The plaintiff seeks to recover damages for this injury on the ground of defendant’s negligence.

On May 27,. 1898, plaintiffs’ traveling salesman took a written order from the defendant in the following words: “ Oconto Palis Manufacturing Co.: Bought of Russell Bros, one car of flour, to be shipped out any time between now and July 1st, when ordered by the Oconto Falls Mfg. Co. Terms, thirty days from shipment. [Descriptions and quantities.] Subject to the approval of Russell Bros., and they are to notify the Oconto Falls Mfg. Co. at once if they accept of order.

<p> Appeal from order: Return: Refusal to exercise discretion: Bankruptcy act: Suspension of state insolvency laws: Voluntary assignment: Dissolution of attachment. </p> <p>1, An order refusing to dissolve an attachment, and the order to show cause upon which it was based, each recited that it was based on certain specified papers and the records and files in the case. On appeal the clerk certified that the papers annexed were “ the original and all the papers and pleadings filed ” in his office “ in the above-entitled cause,” except certain pages of the record which were certified to be true copies. Held, sufficient to identify the records and papers upon which the order was based.</p> <p>2. Where the trial court has power, in its discretion, to do an act, a refusal to exercise such discretion on the -ground that it has no such power is an error of law for which the order will be reversed; but the supreme court will not determine in what way such discretion should be exercised.</p> <p>3. The mere enactment of the federal bankruptcy act of 1898 did not ipso facto suspend the operation of all state insolvency laws, or prevent the making of a voluntary assignment for the benefit of creditors, especially under a state law like ch. 80, Stats. 1898, which prohibits preferences except for six months’ wages of employees,— although such an assignment would be voidable by proceedings under the bankruptcy act.</p> <p>4. Under sec. 1694a, Stats. 1898 (providing that all attachments levied within ten days prior to the making of a voluntary assignment shall be dissolved and the property turned over to the assignee or receiver), our state courts still have jurisdiction, if there have been no proceedings in bankruptcy under the federal act, to determine a motion by the assignee to dissolve such an attachment.</p> <p>5. Not the whole of ch. 80, Stats. 1898, is to be regarded as an insolvency law, but only certain features thereof. Bemarks in Holton v. Burton, 78 Wis. 326, and Second Ward S. Bank v. Schranck, 97 Wis. 258, limited.</p> <p>6. The right to make a voluntary assignment for the benefit of creditors, when-not forbidden by statute, is inherent in a corporation as well as in an individual, and exists independent of the insolvency features of ch. 80, Stats. 1898.</p>

<p> Schools: Contracts: Action by board. </p> <p>Under sec. 432, Stats. 1898 (providing that no act authorized to be done by the school board shall be valid unless voted at its meeting), a contract which was never authorized by any vote or at any meet- .. ing is void, although signed by all the members of the board.</p>

EReob to review a judgment of the municipal court for the Eastern district of Waukesha county: D. S. Tullar, J udge. Error to review a judgment rendered on a conviction of the plaintiff in error, King Bartell, of the offense of assault and battery Bartell claimed to be a magnetic healer, in the regular practice of his profession.

<p>RepoRtbd from the circuit court for Dunn county: E. ~W. Helms, Circuit Judge.</p>

Appeals from orders and a judgment of the circuit court for Racine county: FeaNe M. Eish, Circuit Judge.

B. WymaN, Circuit Judge. The plaintiff .was the owner of a tract of land in the city of La Grosse. In 1896 the city undertook to lay out Denton street, and found it necessary to take a portion of said tract. Appropriate proceedings were instituted to that end, and commissioners were duly appointed as required by sec. 6, subch.

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

J. YiNje, Circuit Judge. The last will and testament of Edwin Y. Mundy was duly admitted to probate in the county court of Douglas county, Wisconsin, June 23, 1891, and in the probate court of St. Louis county, Minnesota, October 22, 1891. Thomas A. E. Weadock, the executor named in the will, was confirmed as such and letters testamentary issued to him by each of said courts.

<p>Appeals from, orders and a judgment of the superior court of Douglas county: Chaeles Smith, Judge.</p> <p>The action ivas for the foreclosure of a mortgage on three parcels of real estate, one described as “ the east half of the west half of the northeast quarter of the northeast quarter, being ten acres of section 34, town 48, range 15 west, in 'Douglas county, "Wisconsin.” The description in the complaint was correct. Such proceedings were duly had that a judgment of foreclosure and sale was ordered in accordance with the complaint. In the draft for the judgment, signed pursuant to the aforesaid order, a clerical error was made in that the land particularly mentioned was described as “ the northeast one-lialf of the west one-half of the northeast one-quarter of the northeast one-quarter, being ten acres of section 34, town 48, range 15 west, in Douglas county, Wisconsin.” The judgment contained the usual provision for a deficiency judgment against the defendant, B. Jarvis Vcm Vleeh, who was personally liable. After one year from the entry of the judgment, such proceedings were duly had pursuant thereto that the mortgaged premises, as described in such judgment, were separately sold, the one erroneously described as aforesaid being sold for $100. Such sale .was reported to and confirmed by the superior court, and a judgment against Van Vleeh for a deficiency, in accordance therewith, was ordered. A sheriff’s deed was made to plaintiff, the purchaser, and a deficiency judgment was rendered in his favor in accordance with the aforesaid order. A short time thereafter the error in the description of the ten acres was discovered, and thereupon a motion was made to the court, on due notice to Vcm Vleeh, for a correction of the judgment in that regard. The motion was granted May 24, 1899, and a resale of the misdescribed land ordered. The deficiency judgment was set aside on the court’s own motion, to which plaintiff excepted. Notice of a resale of the ten acres, dated March 31, 1899, was published March 26, 1899, and once each week thereafter up to and including May I, 1899, the date of the last publication. The sale was made pursuant to such notice, May 15, 1899, plaintiff being the purchaser for $100, leaving a deficiency of $4,599.40. A report of the sale was made in accordance with the facts, which, on motion of the plaintiff and notice to defendant Van Vleek, was confirmed, and judgment ordered against Van Vleek for the amount of the deficiency specified in such report. Van Vleek excepted to the order confirming such sale and took this appeal from such order and from the deficiency judgment. Plaintiff appealed from the order vacating the first deficiency judgment.</p>

Apbeal from a judgment of the circuit court for Wash-burn. county: A. J. Yinje, Circuit Judge. The plaintiffs are partners engaged in the newspaper business.

<p>Appeal from a judgment of the superior court of Douglas county: Charles Smith, Judge.</p> <p>The Delaware, Lackawanna & Western Railroad received certain goods consigned to the plaintiff, resident at West Superior, upon a bill of lading providing for their transportation over that company’s road, in care of the Northern Steamship Company, for delivery to the plaintiff at West Superior, to which point it operated a regular line of freight boats. That contract contained printed provisions exempting the railroad company from liability beyond its line and. constituting it merely a forwarding agent. At Buffalo the merchandise was delivered by the railway company to the defendant, the Union Transit Oonvpa/ny, which ran a line of steamboats from Buffalo to West Superior and Duluth. The manifest was in the folio-wing words: “ Lake Manifest No. 3,058-187, Made at Buffalo, N. Y., Nov. 7,1897. Freight forwarded by the Delaware, Lackawanna & Western Bail-road, via the Union Trcmsit Go., to West Superior, on steamer Portage, trip No. 13.” No notice or knowledge of the original transportation contract was given to the defendant. Eor reasons of its own convenience, the steamer Portage did not go to West Superior on that trip, but direct to Duluth, where it transferred these goods to the Omaha Eailroad for transportation to the plaintiff, to whom they were delivered by the railroad company, damaged while in its possession by freezing and loss $156.25. Upon trial of the case by the court without a jury, the foregoing facts, together with others, were found, and judgment was rendered in favor of the plaintiff and against the defendant for said amount, with interest and costs, from which this appeal is taken.</p>

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

<p>Appeal from a judgment of the circuit court for Douglas county: A. J. Yustje, Circuit Judge.</p> <p>This is an action for personal injuries resulting to the plaintiff from a fall upon the street in the city of Superior August 2,1898. The evidence showed that the plaintiff was a cripple, and was accustomed to ride about the streets of Superior, going to and from his business, in a tricycle. On-the day of the accident he was riding upon one of the streets of the city, and endeavored to cross from the pavement of the street to the sidewalk on the corner of Ogden avenue and Eleventh street. At this point there is a gutter between the pavement of the street and the curbstone of the sidewalk, the depth of which does not appear with certainty; but it was eleven inches in width, and was bridged by two-inch planks, eight feet in length, running parallel with the curb, and arranged so as to be removed for the purpose of cleaning the gutter -beneath. The edge of the plank toward the sidewalk was on a level with the curb, and it was intended to be supported upon that level by means of three iron straps which were spiked on the under side of the plank, and extended up on the curb side thereof, with a flange at the top, so as to rest on the curb. It appears that, while the plaintiff’s tricycle was going over this plank, it was in some manner upset, and the plaintiff was thrown into the gutter, receiving serious injuries. The plaintiff’s evidence tended to show that the plank was at the time loose at one end, either on account of a defective strap and flange or because of the absence of the flange entirely, so that this end of the plank dropped when the wheel of the tricycle passed over it, thus upsetting the same and causing the injuries complained of. There was also evidence on the part of the plaintiff tending to show that the plank had been in this condition for some weeks. On the part of the defendant there was evidence to the effect that the plank was properly fixed in place at the time of the accident, and that there had in fact been no defect in the same.</p> <p>The following questions were submitted to the jury as a ■special verdict: “ (1) Was the defendant guilty of any want of ordinary care in respect to the maintenance of the street in question in a proper state of repair ? (2) If your answer to question No. 1 is ‘Yes,’ then was such want of ordinary care the approximate cause of the injuries complained of ? (3) Was the plaintiff guilty of any want of ordinary care that contributed to produce the injuries complained of? (4) What sum of money will compensate plaintiff for the damages he has sustained by reason of the injuries complained of? (5) If your answer to the first question is ‘Yes,’ then in what respect was this street defective at the time and place of this accident ? (6) How long did such defects exist at the time of the accident ? ”</p> <p>As to the first of these questions the circuit judge charged the jury, among other things: “Was the defendant guilty of any want of ordinary care in respect to the maintenance of the street in question in a proper state of repair ? In d&-termining this question, you will consider, first, whether or not the street, at the place a/nd time of the accident, was in a reasonably safe condition for people to trrnel on in the usual ma/n-ner of traveling. If you find that it was, then you will answer this first question, ‘No.’ If, however, you find that there was a defect in the street at the time and place of the accident, then you will consider and determine whether or not such a defect had existed for such a length of time as to give the defendant constructive notice of its existence and a reasonable time for its repair after it had such notice; and if you find that there was a defect in the street at the time and place of the accident, cmd that such defect had existed for a sufficient length of time prior to the accident to give the defenda/nt constructive notice of it and a reasonable time within which to repcdr it after such notice, then you will consider cmd determine whether or not the defect was of such a nature that a man of ordinary care cmd prudence would reasonably expect might result in cm injiory to persons using the place with or di/nary care for travel in the usual cmd ordinary manner of Raveling. Hence, if you find from the evidence that at the time and place of the accident the street was not in a reasonably safe condition for travel in the ordinary and usual mode of travel; that such unsafe condition had existed for a sufficient length of time to give the defendant constructive notice of its existence and a reasonable time for the defendant to repair it after such notice and before the accident; and that such unsafe condition was of such a nature that a man of ordinary care and prudence would reasonably expect might result in an injury to persons using the place with ordinary care for travel in the usual and ordinary modes for traveling, — then you will answer this question in the affirmative; otherwise, you will answer it in the negative.”</p> <p>The plaintiff excejfied to the submission of the first question, and also excepted to those clauses of the instructions printed in italics. The jury answered the first question “No,” and left the otters unanswered. This verdict was received by the court, and judgment for the defendant rendered thereon, and from that judgment the plaintiff appeals.</p> <p>They contended, inter alia, that with certain well-recognized exceptions, such as sudden defects from the action of the elements, latent defects, none of which figure in this case, liability for injuries sustained by reason of defective sidewalks is absolute, and the question whether or not ordinary care was exercised cannot be submitted to the jury. Sec. 1339, Stats. 1898; Ward v. Jefferson, 24 Wis.'342; Draper v. Ironton, 42 Wis. 696; Burns v. Elba, 32 Wis. 605; Koenig v. Arcadia, 1o Wis. 62.</p>

<p>Appeal from an order of the circuit court for Douglas county: A. J. ViNje, Circuit Judge.</p> <p>Such proceedings were duly taken by the proper officers of the city of Superior, pursuant to subch. XIII of the charter of such city (ch. 124, Laws of 1891), that certain street-improvement certificates were duly issued for special assessments charged to lots abutting on such street for the improvement thereof, and thereafter the relator became the owner of such certificates. The manner of enforcing collection of such special assessment liens for the benefit of the owners thereof, and the manner by which such owners obtain their money, are indicated in sec. 129 of the charter in the following words:</p> <p>“ The comptroller’s statement of the special assessments to be placed, in the nest tax roll shall include an amount sufficient to pay said certificates with interest thereon, at the legal rate, from the date of such certificate to the time when the city treasurer is required to make return of delinquent taxes; and thereafter the same proceedings shall be had as in case of other taxes, except that all moneys collected by the city treasurer and all moneys collected by the county treasurer or county clerk, on account of such taxes, shall be delivered or paid to the owner of the same, on demand, upon surrender of such certificate.”</p> <p>Pursuant to such provision of the charter, there*was extended upon the tax roll of the city of Superior, against the proper descriptions of land, special assessments representing the relator’s improvement certificates. The owners of the lots affected thereby failed to pay such assessments within the time allowed for the city treasurer to collect the same, and they were therefore returned delinquent to the county treasurer as other delinquent taxes of the city were returned,' as the charter directs. After such assessments were collected by the county treasurer, the relator tendered his certificates to such treasurer and demanded payment thereof, which was refused. Thereupon the'relator made his verified petition setting forth the aforesaid facts, and, on due notice to the county treasurer, moved the court for a writ of mandamus requiring him to comply with the relator’s demand for the money collected on the special assessments as stated. The motion was denied, and the relator appealed.</p>

<p> Elections: Validity: Evidence: Certificate signed by one inspector: Admissions of voters: Corrupt practices. </p> <p>1. A certificate of the result of an election which was signed by one inspector only, but had the name of another inspector written thereon by a person having no authority to do so, is not prima facie evidence of the facts therein stated, even conceding that the duty to sign the certificate might be delegated.</p> <p>2. In an action to test the title to an office the exclusion of testimony of admissions made by voters as to their qualifications and for whom they voted is not error unless the offer thereof was definite as to the time when such admissions were made and as to their substance.</p> <p>3. In an action to test the title to the office of town chairman, for which the relator received 253, and the respondent 262, votes, the court found that thirty-one of the votes cast were illegal, and it was reasonably certain that the illegal votes were largely in excess of that number. The evidence was insufficient to show that the relator was entitled to the office, but it appeared, among other things, that both the relator and the respondent connived to secure for themselves the votes of a large number of nonresidents employed in logging camps; that a large number of such men were paid, in the interests of defendant, for the time spent in going to the polls; that liquor was supplied to such an extent that hundreds became intoxicated and the polls were surrounded by a drunken mob; that these men were permitted by the inspectors to vote without challenge, although their ineligibility must have been known; that a number of residents were supplied with orders on the poor fund just before election, under circumstances giving rise to a just suspicion that it was done to influence votes; and that the respondent peddled a “ bine ticket ” which seems to have been given prominence during electioneering and must have been prepared for some purpose of identification. Held, that the trial court should have declared the election void.</p>

<p>Appeal from a judgment of the superior court of Douglas ■county: Chaeles Smith, Judge.</p> <p>The plaintiff, intoxicated, entered defendants’ saloon. After making two purchases of liquor for himself and others, for which he refused to pay, he finally made a third purchase from the barkeeper, one Backstrom. Eor this also he refused to pay when called on, and some altercation took place, whereupon the barkeeper struck him, and rushed out from behind the bar, and seized him, whereupon he fell to “the ground, injuring his thumb seriously. He recovered a verdict, upon which judgment was rendered in plaintiff’s favor, from which this appeal is taken. Other material facts .are stated in the opinion.</p>

<p> Fraud: Conspiracy to induce exchange of lands: Evidence: Misrepresentations of value: Failure to examine. </p> <p>1. That alleged confederates in a conspiracy to defraud one of his real estate by inducing him to exchange it for other property of little value were such in fact, may be established by circumstantial evidence.</p> <p>2. The conduct of the owner of land worth $1,800 in trading it for land in a distant county, of comparatively little value, without any personal knowledge or attempt to gain personal knowledge thereof, is not reasonably explained by evidence tending to show that he was anxious to place his land beyond the reach of his sister who he feared would make some claim on account of it.</p> <p>3. If property offered for sale or exchange be in a distant locality, and the vendee, to the vendor’s knowledge, has no personal information in regard to it, and'the latter misrepresents its value or quality for the purpose of inducing a trade and by artifice prevents the former from seeking information elsewhere or by a personal examination of the property, such misrepresentations are not mere expressions of opinion, but misrepresentations in respect to a material fact, satisfying the calls of actionable fraud in that regard.</p> <p>4 Where by means of a fraudulent conspiracy in such a case the defrauded party had been thoroughly convinced that by trading he could turn his farm into money for much more than its real value, pretended indifference on the part of the owner of the distant land, and intimations that the former should examine it before making the trade, are not evidentiary of fair dealing and freedom from fraudulent purpose on the part of the latter.</p>

<p> Contracts: Manufacture of machines according to model: Acceptance: Waiver of defeats: Implied warranties: Worthlessness: Burden of proof: Measure of damages. </p> <p>1. If machines manufactured under a contract according to a model furnished by the vendee are sent out to dealers in a defective condition with the knowledge and consent of the vendee, he cannot hold the manufacturer responsible in damages for their failure to work; and if the vendee takes them and, with full opportunity for examination and knowledge of the variance between the mar chines contracted for and the ones furnished, fails to give the manufacturer timely notice that he does not accept them as being in compliance with the contract, the defects will be deemed waived.</p> <p>2. Under a contract providing for the manufacture of a certain number of tobacco transplanting machines according to a model, except that the shoes were to be of steel instead of cast iron, and containing a stipulation that the manufacturer did not guarantee them to work and that the vendee assumed the risk, no implied warranty arose that the steel to be used for the shoes and gatherers should “ scour in the soils of this country.” The law merely implied an obligation that the manufacturer should use reasonable care in the selection of materials, and that, so far as its efforts entered into the manufacture of the materials, there should be no-latent defect in either materials or workmanship. Kemarks in J. I. Case P. Works v. Niles & Scoit Co. 90 Wis. 590, limited.</p> <p>3. If the vendee retained the machines without any offer to return them he assumed the burden of showing that they were worthless; and the manufacturer could recover their actual value, notwithstanding they were totally unfit for the use for which they were made, less such special damages as the vendee had properly pleaded and proved.</p>

<p>Appeal from a judgment of the circuit court for Washington county: James J. Dice, Circuit Judge.</p> <p>The defendant’s railway runs through the city of West Bend in a generally northerly and southerly direction. The city is mainly some little distance to the west of the track, while to the east of it, in the vicinity involved, are some lumber yards and sheds and an elevator. The railroad is crossed by Water street at a point about 600 feet south of the depot and about 850 feet north of the south city limits. The course of the railroad is level, and at or above the surface, for nearly half a mile south of the depot, so that, but for the obstructions hereafter to be mentioned, a train thereon would be obvious. Eleven hundred and fifty feet south of "Water street the track crosses a bridge. The plaintiff’s intestate left an elevator situated east of the railroad and about 400 feet north of Water street, drove in a buggy rapidly south on a traveled way to Water street, and turned thereon at a point about ninety feet east of defendant’s main track, and traveled westward along Water street, crossing two switch tracks and then the main track. When the hind wheels of his buggy were on the main track he was struck by a regular passenger train traveling, as the jury found, about twenty-three miles per hour, and was killed. Deceased drove rapidly, increasing his speed as he approached the crossing, where, as the jury found, he was traveling eight miles per hour, whereas shortly before his rate is fixed by them at seven miles per hour. He made no pause from the elevator to the time of his collision.</p> <p>On the south side of Water street, commencing at the railroad right of way about fifty feet east of the main track, is a lumber shed, which runs southwesterly parallel to a switch track. Then intervenes a space of about twenty-six feet, and a building standing practically due north and south, the north end of which, on Water street, is occupied as an office and the rear portion as a lumber shed. East of this are lumber yards and buildings, with intervals between them. The testimony shows that for some considerable distance after leaving the elevator the track was visible from a point some 700 or 800 feet south of Water street to nearly half a mile south of the depot. The place of turning westward on Water street is approximately opposite the west line of the office building above mentioned, between which and the lumber shed direct lines of vision would give a view of the track at a point about 280 feet south of the crossing and thence on southward. That space was, however, incumbered by certain piles of posts, tbe highest of which was estimated at about eight feet, over which the deceased could easily have seen by rising in his buggy. A photograph, taken at a time when the highest of these piles had been elevated somewhat, shows that, at an elevation of three and one-half or four feet from the ground, considerable portions of the track were visible around the highest pile, which did not occupy the entire space. After passing this space and reaching a point opposite the northwest corner of the lumber shed, approximately fifty feet east of the place of injury, the view of the track southward is unobstructed from the crossing to a point about 300 feet south thereof, which distance, however, of course enlarges rapidly as the traveler advances and his line of vision forms an acute angle with the line of the lumber shed. At the time ■of the injury, however, upon a side track substantially parallel with the main track, and distant about five feet east therefrom, there stood an' engine, and caboose, about ninety feet in length, the north end of which was about twenty ■or thirty feet south of the crossing on Water street. This would have obscured the track from the last-mentioned point •of observation for a space of about 160 feet south from the crossing, leaving only about 140 feet of the main track momentarily visible upon reaching the west line of the lumber ;shed. The train was about 340 feet in length.</p> <p>As to the conduct of the deceased in the way of observation ■or effort to observe, there is no evidence, except that he did not stop to look or listen. He was a farmer, living about three miles from the city for many years, during which the train in question had been due at substantially the same time. He was in the habit of frequently passing this crossing on Water street, as shown by the testimony of the occupant of the lumber office in question. His visits to the elevator were every week or two. Th'e testimony, with the ■exception of some undisputed evidence relating to measurements and photographs, was entirely from plaintiff’s witnesses.</p> <p>At the close of the trial direction of a verdict was requested by defendant and refused, and a special verdict was taken which, so far as material on this appeal, was as follows: “ (2) At what rate of speed was defendant’s train moving at the time of collision? A. Twenty-three miles per hour. (3) At what rate of speed was Henry Kruse, deceased, driving as he entered upon defendant’s right of way ? A. Seven miles per hour. (4) At what rate of •speed was Henry Kruse, deceased, driving at the time of the collision which resulted in his death? A. Eight miles per hour. (5) As Henry Kruse, deceased, was approaching the crossing of defendant, could he have heard the noise of the approaching train if he had listened, by the exercise of ordinary care ? A. No. (6) Could Henry Kruse, deceased,have seen the approaching train if he had stopped as he entered upon defendant’s right of way, and listened ? A. No. (7) Did Henry Kruse, deceased, stop and look out for the approaching train of defendant? A. No. (10) 'Was Henry Kruse, deceased, guilty of a slight want of ordinary care and prudence which caused or contributed directly to his death. %A. No.”</p> <p>Defendant moved the court to set aside the answers to the fifth, sixth, and tenth questions, and for judgment for the defendant, on the ground that they were adverse to the undisputed evidence, and also moved for a new trial on the same with other grounds. Both motions being overruled, judgment was entered for the plaintiff, from which this appeal is brought.</p> <p>to the point that in cases where the circumstances were less perplexing* than in the case at bar this court has repeatedly held that the question of contributory negligence was for the jury, cited Roberts v. O. db H.W R. Go. 35 Wis. 6Y9; Valin v. M. <& N. R. Go. 82 Wis. 1; Heath v. Stewart, 90 Wis. 418; Butler v. M. <& St. P. R. Go. 28 Wis. 48Y; Ferguson v. W. O. R. Go. 63 Wis. 145; Regam, v. G.,M. <& St. P. R. Go. 85 Wis. 43; Kd-leher v. PL. <& H. R. Go. 80 Wis. 584; Wvnchell v. Abbot, YY Wis. 3Y1; Siegel v. M. <& H. R. Go. Y9 Wis. 404; Piper v. a, M. & St. P. R. Go. YY Wis. 24Y; Duame v. G. & N. W. R. Go. Y2 Wis. 523; Bower v. G.} M. & St. P. R. Co. 61 Wis. 45Y.</p>

<p> Wills: Undue influence: Revocation. </p> <p>1. The fact that a testator seventy-five years old, of sound and disposing mind, consulted with his wife, then in her last illness, and was influenced by her in the making of his will, which practically disinherited some of their children, is not a sufficient reason for setting aside the will, especially where the testator lived and retained his testamentary capacity for more than three years after his wife’s death but did not change his will.</p> <p>2. Sec. 2290, Stats. 1898, points out the only way in which a will may be revoked: a desire expressed by the testator to make other disposition of his property or to change his will will not effect a revocation.</p>

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

S. Geiswold, Judge. This is an action of certiorari, brought by the relators, who are electors and taxpayers of school district No. 3 in tbe town of Pewaukee, Waukesha county, Wisconsin, against tbe supervisors of said town, tbe object of the action being to reverse the action of said supervisors in creating a new school district in said town out of portions of school districts Nos. 1, 2, and 3.

<p> Animals: Killing of sheep by dogs: Inability of owner. </p> <p>1. The evidence in this case — showing, among other things, that after plaintiff’s sheep had been killed by two dogs the tracks of one of them were traced to defendant’s house and that the appearance of his dog was incriminating — is held sufficient, with the accompanying circumstances, to sustain a verdict that defendant’s dog was concerned or engaged in the killing.</p> <p>2. Under sec. 1620, Stats. 1898 (providing that “the owner or keeper of any dog which shall have . . . killed, wounded or worried any . . . sheep or lambs shall be liable to the . . . owner of such animals for all damages so done,” etc.), if dogs of different owners unite in billing or worrying sheep each owner is liable for the whole amount of the damage so done.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. JohNSON, Circuit Judge.</p> <p>Action of ejectment. The subject of the controversy was an irregular piece of land about 40 feet wide by 170 feet long, defined, as to boundaries, by actual possession by the defendant. The complaint was in the usual form. The only material issues presented by the answer, originally, were raised by a general denial. The case was brought to trial on the part of defendants by attorneys substituted for the one who interposed the answer, some twenty-one months having elapsed since the action was commenced. On the day of the trial, before the jury was impaneled, an amendment to the answer was permitted, setting up the ten and twenty years’ statutes of limitations. Exception was taken by plaintiff’s counsel to the allowance of such amendment. The evidence conclusively or strongly tended to prove, and plaintiff’s counsel, in substance, admitted, that more than twenty years prior to the commencement of the action one John Skoczek inclosed the premises 'with a fence, built a house thereon, and thereafter occupied the same continuously till about 1886, when he sold out and transferred the property and possession thereof to defendant Joseph Bud-zisz for a valuable consideration, who occupied the same continuously thereafter down to the time of the trial. The court decided that adverse possession of the property commenced when Skoczek inclosed and commenced to occupy the same; that he and his successor in possession occupied •the property continuously for more than twenty years before the action was commenced; that the parol transfer of the property from Skoczek to Budzisz, and the entry by the latter under the former pursuant thereto, made the adverse possession thereof exclusive and uninterrupted from the time possession, was taken by Skoczek. In accordance therewith a verdict was directed in favor of defendants, npon which the judgment appealed from was rendered.</p> <p>They contended, inter alia, that possession is an “interest” in lands, and a sufficient interest therein to entitle the possessor to maintain ejectment against an intruder into his possession. Bates v. Campbell, 25 Wis. 613; Howard, v. Easton, 7 Johns. 205; Moore v. Moore, 21 Me. 350.. A judgment against a person in possession becomes a lien, and his possession may be sold on execution. Jaekson v. Parker, 9 Cow. 80, 85. A sale and transfer of such possession is most certainly, therefore, a sale and transfer of an “interest” in lands, and is included within the statutory prohibition. Privity of estate or possession, sufficient to establish the defense of the statute of limitations, cannot be transferred by parol. Bailey v. Wells, 8 Wis. 141; Syd/nor v. Palmer, 29 Wis. 251-253; F%t,rlong v. Garrett, 44 Wis. Ill; Graeven v. Dieves, 68 Wis. 31Y; Elofrson v. Lindsay, 90 Wis. 203; Ab-lard v. Fitzgerald, 8Y Wis. 516; Dhein v. Beuseher, 83 Wis. 316; Sheppard v. Wilmott, 79 Wis. 15; Pepper v. O’Dowd, 39 Wis. 548; Stevens v. Brooks, 24 Wis. 326; MeEvoy v. Loyd, '31 Wis. 142; Fuller v.- Worth, 91 Wis. 406.</p> <p>They argued, among other things, that although the adverse possession must be continuous and uninterrupted, it is immaterial whether it be held for the entire period by one person or by several persons in succession, provided there is a “ unity of possession ” or, in other words, a privity of estate or title. 1 Elliott, G-en. Prac. § 297; Wollman v. Buehle, 100 Wis. 31, 34, 35; 8. C. 104 Wis. 603. The several possessions of successive disseisors may be “ tacked ” together so as to make a continuous possession, where there is privity of estate or title. The privity required to constitute continuous adverse possession may be effected by any conveyance, agreement, or understanding which has for its object a transfer of the rights of the original entry. No paper evidence of a transfer of possession is necessary when'the property is held under the claim of the first entryman, but the continuity may be shown by parol. Allis v. Field, 89 Wis. 334; Rijan v. Schwartz, 94 Wis. 411; 2 Ballard, Law of Real Prop. § 25; Sedgwick & Wait, Trial of Title to Land, § 748; 6 Wait, Act. & Def. 455; 2 Wood, Limitations, § 271; Newel], Ejectment, § 53, p. 740; Ramsey <o. Clenny, 45 Minn. 401, 22 Am. St. Rep. 736; Vandall v. St. Martin, 42 Minn. 166; McNeely v. Lcmgan, 22 Ohio St. 32, and cases cited; Menlcens v. Rlwnenthal, 27 Mo. 198; Crispen v. Hcm-na/oan, 50 Mo. 544; Cwinmgham v. Patten, 6 Pa. St. 358; Scheetz v. Fitzwater, 5 Pa. St. 126; 1 Am. & Eng. Ency. of Law (2d ed.), 844; Weber v. Anderson, 73 Ill. 439; Schuffie-ton v. Nelson, 2 Sawyer, 545; Alexander v. Pendleton, 8 Cranch, 462.</p>

<p>Justices’ courts: Garnishment: Payment into court: Mechanics’ liens: Jurisdiction: Certiorari.</p> <p>Notwithstanding seo. 3727. Stats. 1898 (providing that no judgment shall be rendered against a garnishee by a justice of the peace, or any money or property required to be delivered by him to the justice, by reason of any money owing by him to the defendant, unless it shall have become due absolutely and without depending on airy future contingency, and that claims for mechanics’ liens shall prevent any indebtedness from the owner being due absolutely until such liens shall have been disposed of or shall have expired), an order requiring the garnishee to pay into court the amount of the indebtedness from him to the defendant, which was subject -to claims for mechanics’ liens, is within the jurisdiction of the justice, and, although erroneous, cannot be reviewed upon ■ certiorari.</p>

<p> Cloud on title: Tax certificate purchased by junior mortgagee: Equitable lien: Reimbursement by first mortgagee after purchase on foreclosure sale: Judgments: Estoppel. </p> <p>1. The purchase of a tax certificate by a junior mortgagee amounts to the payment of the tax for the protection of the estate, and for the mutual benefit of the mortgagees and the mortgagor; and under sec. 1158, Stats. 1898, the purchaser acquires simply a “further lien” upon the land of the same nature as his mortgage and constituting simply an addition to the mortgage debt of the amount due on the certificate when he acquired it.</p> <p>2. In an action to foreclose a first mortgage on real estate the complaint alleged that the premises had been sold for the taxes of 1893 and that the sale was unredeemed, but failed to allege that the lien therefor was subject to plaintiff’s mortgage, or that plaintiff’s mortgage was prior to the claims of a second mortgagee, although he knew that the latter held the certificate for such taxes. Judgment was entered by default, and the plaintiff bid in the premises and acquired title thereto. Subsequently he commenced an action against the second mortgagee, under sec. 8186, Stats. 1898, to set aside said tax certificate as a cloud upon his title. Held, that the plaintiff was estopped from claiming that the foreclosure judgment affected the defendant’s equitable rights in respect to the tax certificate.</p> <p>3. Notwithstanding the fact that defendant’s tax certificate was not a lien paramount to plaintiff’s mortgage and, after the foreclosure of that mortgage, could not be enforced in any way, a court of equity should not set it aside as a cloud on the title except upon condition that plaintiff reimburse defendant for his expenditure by reason thereof which inured to plaintiff’s benefit.</p> <p>[4. Cassoday, C. J., is of the opinion that reimbursement for defendant’s expenditures by reason of the tax certificate was properly required as a condition of setting it aside, on the ground that it was a lien in equity paramount to plaintiff’s mortgage.]</p>

<p>Appeal from an order of the circuit court for Oconto county: S. D. Hastings, JR., Circuit Judge.</p> <p>Appeal by plaintiff from order sustaining demurrer to his complaint, wherein the following material facts are set forth: Prior to November 19, 1895, the plaintiff’s father, Charles B. Alvord, held a tontine life insurance policy for $3,000, payable to Ellen C. Alvord, beneficiary, wife of Charles B. Alvord, provided that, if said beneficiary should not survive the insured, then such payment should be made to the executors, administrators, or assigns of said assured. Ellen C. Alvord having died, said Charles B. Alvord, on November 19, 1895, sent a letter to the company, mentioning the death of his wife, and saying: “Now, I wish yon would make it payable, in cage of my death before matu-ritjj, to the following named persons, just as I have them wrote: Adelbert Alanson Alvord, $1,000,” etc. No response-was made to this letter, and Charles 13. Alvord died November 30th following. The defendant was appointed administrator of the estate of Charles B. Alvord, and received upon the policy $2,100, being the amount thereof, less $300, which the assured had borrowed from the company. The-complaint concludes with the assertion that said defendant, in receiving said $2,100, received $1,100 thereof for the-plaintiff, Adelbert A. Alvord, and thereby became indebted to him, but has refused to pay said amount upon demand.</p>

<p>(1, 3) Appeal: Vested rights: Change in remedy. (3) Logs and timber: Idens.</p> <p>1. Upon the dismissal of an appeal for lack of the certificate required by sec. 3047, Stats. 1898, in case of a judgment involving less than §100, the rights of the parties did not become vested or finally determined so as to preclude another appeal.</p> <p>3. It was competent for the legislature to dispense with the requirement of such a certificate, even as to judgments entered prior to the change.</p> <p>3. The owner of land had contracted to sell and deliver the hemlock logs cut therefrom to one person and the other logs to another. Plaintiff worked for said owner promiscuously, as might be convenient, upon both classes of logs before their delivery. Held, that his lien for the whole of such labor might be enforced against anv-part of the logs.</p>

<p> Appeal: Notice: Separate judgments against insurance companies. </p> <p>The “ separate ” judgments entered pursuant to seo. 2609a, Stats. 1898, against the defendants in a consolidated action upon insurance policies issued by different companies, cannot be brought up for review by a single notice of appeal.</p>

D. Hastings, Je., Circuit Judge. Plaintiff, as assignee of a claim established against an insolvent banking corporation whose affairs were in process of being settled under a voluntary assignment for the benefit of creditors, commenced this action to recover it of the stockholders and officers of the bank because of the stockholders’ liability and official misconduct of such officers.

<p> Municipal corporations: Injury from, defective sidewalk: Notice, on whose behalf given? Husband and wife. </p> <p>Where! several and distinct claims for damages may be based upon an injury caused by a defect in a street, the notice given under sec. 1339, Stats. 1898, must show, in order to support an action, that it was given on behalf of the plaintiff. So held in an action by a husband for loss of his wife’s services, where the only notice of her injury stated that she would claim satisfaction, and did not show that she was a married woman, that her husband had sustained any damage, or that he was intending to prosecute therefor. Parish v. Eden, 62 Wis. 272, and Peed v. Madison, 83 Wis. 171, so far as they are in conflict with the foregoing, overruled. Gassoday, O. J., concurring in the decision, is of the opinion that neither of said cases need be overruled.</p>

<p>MaNdamus to the Commissioners of Public Lands and James 0. Davidson as state treasurer:</p> <p>Sec. 205, R. S. 1878, fixed the minimum price of state swamp lands. By ch. 324, Laws of 1878, state lands within certain specified territory were withdrawn from sale and reserved for a state park. By ch. 367, Laws of 1897, ch. 324 aforesaid was repealed and certain lands therein mentioned, including the state park lands, were required to be appraised and placed on sale as therein provided. Such lands were appraised accordingly and measures taken to further execute the law. In August, 1897, the statutes of this state were revised, sec. 205 of the Revised Statutes of 1878 being carried into the revision without change. The special law of 1897 was not expressly repealed. By ch. 345, Laws of 1899, such special law was amended and recognized as being in force.</p> <p>On February 10, 1900, the relator applied to the Commissioners of Public Lands for leave to purchase a considerable quantity of state swamp lands under sec. 205, Stats. 1898, that were within the territory affected by the special act of 1897, and such proceedings were had as to entitle him to have his application granted if the lands applied for were subject to sale under such section. The Commissioners of Public Lands rejected the relator’s application upon the ground that the sale of the lands applied for was governed by the special law of 1897.</p> <p>The facts above related, in the main, were embodied in a petition verified by the relator and filed in this court, upon which an alternative writ of mandamus was regularly sued out, requiring the Commissioners of Public Lands to grant the relator’s application or show cause why to the contrary on the return day of the writ. On such return day the respondents moved to quash the writ.</p>

<p>Appeal from a judgment of the circuit court for Bayfield county: JonN K. Paeish, Circuit Judge.</p> <p>The plaintiff town filed as a claim with the county board of supervisors a petition setting forth that the county was indebted to the town in the sum of $15,461.54 for balance of account for delinquent taxes returned by the town treasurer of said town to the county treasurer of said county in the years 1893, 1894, 1895, 1896, 1891, and 1898 (beingtaxes for the years 1892 to 1897, inclusive), and asserting that the petition annexed was a true statement of all the delinquent taxes returned, and also a true statement of all credits to which the county is entitled, and alleging that the town had during all of that period paid all state taxes, county taxes, school fund income taxes, and all taxes whatsoever due from said town, except those credited to the county in said annexed statement. The statement annexed as an exhibit contained the totals of the - delinquent tax lists for the years named, aggregating $77,049.84, and, as credits to the county, all of the general county taxes, and $383.72 for illegal tax certificates, aggregating $31,588.20.</p> <p>The claim being disallowed, an appeal was taken to the circuit court for Bayfield county, where no written pleadings appear in the record. An order of reference was made to take proof and report. Before the referee the defendant objected to any evidence under the claim, for the reason that the claim and petition did not state facts sufficient to constitute a cause of action against the defendant. Evidence was then taken, principally in the form of stipulation as to what facts should be taken as proved for the purposes of the case. The bill of exceptions does not disclose the renewal of such objection before the court.</p> <p>After the filing of said report, and a hearing before the court, the judgment roll discloses an order substantially as follows: “The issues of law raised herein by the demurrer of the defendant to the complaint of the plaintiff coming on to be heard, and the same having been argued by counsel, ordered, that the demurrer of the defendant to the complaint herein be sustained, and that the complaint be dismissed, with costs to the defendant, and that judgment be entered accordingly. By the Court,” "Whereupon judgment, reciting said order, was entered as of December 8, 1898, dismissing the complaint, and awarding costs to the defendant. Erom that judgment the plaintiff appeals.</p>

<p> Municipal corporations: Officers: Salaries: Contract for smaller compensation: Accord and satisfaction. </p> <p>1. Under a charter providing that the city officers shall receive salaries to be fixed annually by the common council and not to be increased or diminished during their terms of office, an agreement between an officer and the mayor, entered into after the appointment of the former, by which he was to receive a certain sum per diem in lieu of the salary fixed by the council, is void.</p> <p>2. The salary of the officer who had entered into such agreement was not paid monthly as the charter provided, but when about two thirds of the term had expired he filed a claim for a sum less than the amount of salary then due him, as being in full for his services for the entire year, and the same was allowed and paid. Meld, that this did not constitute an accord and satisfaction.</p>

<p> Defeat of parties: Waiver: Equity: Failure to assert title to land: Estoppel: Mechanics’ liens. </p> <p>1. A defect of parties must be taken advantage of by demurrer if it appears on the face of the complaint, otherwise by answer, or it will be deemed to have been waived.</p> <p>2. Plaintiff’s father, as security for a loan of money, conveyed land and took back a land contract. He assigned the contract to plaintiff, but the assignment was not recorded. They continued to live upon the land, and obtained from defendant building material for use thereon. Plaintiff intended4io become the debtor for such material, but defendant supposed the father was the purchaser. After-wards defendant commenced an action against the father to enforce a lien for such material on the land, but plaintiff, supposing he was the person intended to be sued, appeared and answered. On the trial he discovered the mistake, and withdrew his answer without disclosing the true state of the title, and thereafter kept silent until defendant, with his knowledge, had incurred the expense of obtaining a lien judgment and was proceeding to enforce it. Plaintiff then had the assignment of the land contract recorded, and brought this action to restrain the enforcement of the lien judgment and quiet his title as against it. Held, that equity would not aid him, but, for the purposes of the action, would consider the father as the owner of the land.</p>

<p> Evidence: Instructions to jury: Use of logging road: Implied contract: Exceptions. </p> <p>1. On the issue whether there was a contract between plaintiff and defendant that the latter should contribute to the repair and maintenance of a logging road to be jointly used by them, it was error to permit defendant to introduce in evidence a written contract between himself and third persons giving him the right to haul timber over roads made or used by them, such roads covering a portion of the road in controversy.</p> <p>2. An instruction to the jury that “a party going in the woods and finding a logging road or finding a public road had a right to go on and use it ” is error, there being no such right in regard to mere private roads. '</p> <p>3. No agreement to pay for the use of a road on lands owned by another person can be implied unless the conventional relation of landlord and tenant exists.</p> <p>4 Separate exceptions to almost every word in the charge to the jury will not be held bad as being a general exception to the whole charge; but it is the better practice to except only to such portions of the charge as raise a reasonable question as to its correctness or applicability to the case.</p>

<p> Service of summons: Proof: Judgment by default: Jurisdiction: General appearance: Appeal. </p> <p>1. Personal service of a summons, in order to give jurisdiction of the person, must be made within the state; and the fact that service was so made is an essential element of the proof of service required for the entry of judgment upon default under sec. 2891, Stats. 1898.</p> <p>2. A judgment taken by default without jurisdiction over the person of the defendant and in defiance of sec. 2891, Stats. 1898, -will be reversed on appeal, notwithstanding the appeal was a general one from the whole judgment. Dilceman v. Struck, 76 Wis. 332, so far as it holds to the contrary, overruled.</p>

<p>Appeal from a judgment of the circuit court for Oneida county: W. 0. Silveethokn, Circuit Judge.</p> <p>for the appellant, contended, inter alia, that the material and physical facts in respect to the maintenance of barriers, guards, lights, etc., were directly in issue by the pleadings, and the defendant was entitled to have such specific facts found by the jury. Davis v. Farmington, 42 "Wis. 425-431; Gcwroll v. Bohan, 43 Wis. 218-221; Elerhardt v. Scmger, 51 Wis. 72; Jewell v. G., St. P. <& M. R. Go. 54 Wis. 610-618; Floohmski v. Shores B. Go. 93 Wis. 411; Pratt v. Beck, 65 Wis. 463; Lee v. G., St. P., M. de O. R. Go. 101 Wis. 352; Bigelow v. Ban-ielson, 102 Wis. 470. The discretion of the trial court does not go to the extent of warranting a refusal to submit a question covering a material controverted fact. F. Dohmen Go. v. Fiaga/ra F. Ins. Go. 96 Wis. 39-57; Baxter v. 0. <& F. W. R. Go. 104 Wis. 307. The finding in response to the seventh question of the verdict is at best bat a conclusion of law without giving any of the facts upon which it is based.</p>

<p> Appeal: Exceptions: Instructions to jury: Special verdict: Duplicity: Injury from defective sidewalk: Negligence: Proximate cause. </p> <p>1. The giving of general instructions in connection with a special verdict cannot be held error unless exceptions are preserved to the parts complained of.</p> <p>2. It is not prejudicial error to instruct the jury that slight want of ordinary care constitutes negligence, nor, in the absence of a request therefor, to fail to define ordinary care.</p> <p>3. Although instructions are subject to criticism because not confined to the fact to be found, an exception on the ground that they are in no manner applicable to the question submitted and fail to inform the jury of the law applicable thereto, is too broad to be available if they have, in fact, some applicability to such question.</p> <p>4. When a traveler exercising ordinary care suffers injury by stepping into a defect in the sidewalk, which was made by the town officials, or had existed so long as to charge them with notice and the duty to repair, such officials cannot be heard to say that they did not anticipate such an occurrence. Where those facts are found in a special verdict, therefore, errors in the instructions relating to a further question as to proximate cause are immaterial.</p> <p>5. If a question as to whether the defendant was guilty of negligence which was the proximate cause of plaintiff’s injury is answered in the affirmative, there is no duplicity of which the defendant can complain.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: James 0’Neill, Circuit Judge.</p> <p>Action to enforce the stockholders’ liability to creditors under the laws of the state of Minnesota.</p> <p>The constitution of the state of Minnesota provides that “ each stockholder in any corporation, except those organized for the purpose of carrying on any kind of manufacturing or mercantile business, shall be liable to the amount of stock owned or held by him.” Art. X, sec. 3.</p> <p>The Minnesota Elevator Company, a corporation organized under the laws of the state of Minnesota and having its principal office in Red "Wing in said state, a debtor to a considerable amount for money borrowed in the regular course of business of plaintiff, a national banking corporation of the city of Eau Claire, "Wisconsin, made an assignment September 2, 1884, for the benefit of its creditors under the laws of Minnesota, to which assignment all of the creditors of the, assignor except plaintiff became parties, and by so doing, according to the laws of such state, released their claims against the assignor and without resorting to the stockholders’ liability.</p> <p>This action at law was commenced November 18, 1897, against the defendant, who was then and had been, during all the time covered by the transaction referred to, a resident of Minnesota, service being obtained upon him in this state, to enforce his liability as a stockholder of the elevator company under the constitutional provision before referred to. The issues formed by the pleadings involved several questions vital to the maintenance of the action, and among them whether’ the liability of stockholders of a Minnesota corporation to its creditors is enforceable by an action at law or any action in tbe courts of this state.</p> <p>That cause was tried by the court and the facts, as regards the nature of the liability in question, by the laws of Minnesota as construed by its highest court, were determined as follows:</p> <p>The liability of stockholders of a Minnesota corporation, not within the exception contained in its constitutional provision on the subject, or some other special exception, none of which exceptions include the corporation in question, exists wholly by force of the laws creating it, and by such laws its character and incidents must be determined. It is a liability of all the stockholders to all the creditors, limited as to each stockholder to the amount of his stock. It is a liability for the benefit of all the creditors who desire to take advantage of it, each having an equal right with all the other creditors to enforce it. As between the stockholders and the corporation the latter is the primary debtor and liable to reimburse the former. As between the stockholders there is the right of contribution to the end that each stockholder within ¡reach of the court having jurisdiction to enforce the liability will only be required to pay such proportionate share of the indebtedness of the corporation participating in the proceedings to enforce it as the amount of stock held by ■him bears to the entire amount of stock held by solvent stockholders within the jurisdiction of the court.</p> <p>Chapter 76 of the general statutes of the state provides the exclusive remedy for the enforcement of such liability, which is by an equitable action in a district court within the state of Minnesota, all the creditors desiring to avail themselves of the liability being plaintiffs and the corporation and all its stockholders within the jurisdiction of the court being defendants. The nature of the liability of stockholders in corporations organized under the laws of Minnesota, including those specified and embraced in its constitutional provision on the subject, the form and nature of the action and proceedings to enforce the same, and the courts having jurisdiction of such actions, have been fully determined by the supreme court of the state of Minnesota to the effect aforesaid, and that the remedy provided by chapter 76 of the Minnesota statutes is exclusive, and that it requires a single action in equity at the home of the corporation.</p> <p>From such facts and others the court decided that it was without jurisdiction to entertain the action. Judgment was accordingly entered dismissing the plaintiff’s complaint and for costs and disbursements in favor of defendant.</p>

<p> Malicious prosecution: Damages: Evidence: Reputed wealth: Advice of counsel: Instructions to jury: Probable cause.. </p> <p>1. In an action for malicious prosecution, where punitory as well as compensatory damages are recoverable, the financial circumstances of the defendant may be shown by evidence of his reputed wealth. Draper v. Baker, 61 Wis. 450, followed.</p> <p>2. Where justification under advice of counsel was not at issue in such’ a case, instructions to the jury based on the assumption that it was, thus distracting the attention of the jury from the real issue,, were erroneous.</p> <p>8. An instruction that probable cause, as relating to the commencement of a criminal prosecution, means a reasonable ground of suspicion, supported by circumstances sufficiently strong to warrant a really cautious man in the belief that the person accused is-guilty of the offense charged, is erroneous; and the error is not cured by correct expressions in the other portions of the charge^ indicating that the standard of liability is the belief of a reasonably prudent man.</p> <p>4. The giving, of a proper instruction does not cure an erroneous one-before given, unless the latter is expressly withdrawn or it is evident that no harm resulted therefrom.</p>

<p> Attorneys at law: Fraud: Gonspiraoy: Action, at law or in equity? Trusts and trustees: Survival of actions, </p> <p>1. Wilful misstatements of the law by attorney to client to secure an advantage to himself, with knowledge of the falsity and intent to defraud on the one side and ignorance and reliance on the other, constitute actionable fraud.</p> <p>■2. A complaint alleged a conspiracy between defendants and one other person to obtain by fraud from plaintiffs’ testatrix and ancestor her note secured by mortgage on land, for the purpose of selling the same and dividing the proceeds between the conspirators; the obtaining and sale of the note and mortgage accordingly; the foreclosure of the mortgage by the purchaser; the purchase of the land by the defendants at the foreclosure sale, and their retention of the same and collection of the rents; and a deficiency judgment, paid by plaintiffs. The prayer was that defendants be compelled to convey the lands to plaintiffs, or that plaintiffs recover the value thereof, and also the amount of the judgment paid by them and the rents. Held, that the action was in equity to charge'defendants as trustees and to enforce the trust, although a portion of the relief demanded was not obtainable in such an action; and that the cause of action survived the death of the cestui que trust.</p> <p>3. For the amount paid on the deficiency judgment, or for the loss of the land through the foreclosure of the fraudulently acquired mortgage, the recovery would necessarily be in a tort action, but any right to that form of action died with the mortgagor.</p> <p>4, The conspiracy as alleged was consummated when the note and mortgage were sold and the proceeds divided by the conspirators, and to recover such proceeds plaintiffs’ testatrix had a clear and adequate remedy at law by an action ex contractu for money had and received.</p> <p>3. The events subsequent to the sale of such note and mortgage were not within the scope of the conspiracy as alleged, nor was it shown that plaintiffs could not have prevented them by paying the mortgage or defending against its foreclosure. On the demurrer of a defendant whose only connection with the fraud, as alleged, was by said conspiracy, it is held that the complaint fails to connect such fraud with the acquisition of title to the land so as to charge defendants with a trust therein, and fails therefore to state any ’ cause of action for equitable cognizance.</p>

<p> Limitation of actions: Attorneys at law: Termination of employment: Evidence: Corporations: Compensation of officers for special services: Implied contracts: Estates of decedents: Agreement by creditor to pay administrator: Public policy. </p> <p>1. The statute of limitations does not commence to run upon an attorney’s claim for services until the termination of the proceeding in which they were rendered, where his employment was to conduct such proceeding to its termination, or until the employment is otherwise terminated. Thus, evidence tending to show that an attorney was employed to collect certain notes by suit; that the action was tried several times but no result reached; that a.reference as to one branch of the case was agreed on; that the case lay dormant for more than six years in this condition, when a trial was had before the referee, conducted by said attorney; and that thereafter he was advised by the client to take no further steps, — is held sufficient to justify a finding by a jury that the employment was entire and did not terminate until after the trial before the referee.</p> <p>2. So, evidence tending to show that in 1881 or 1882 a bank placed a note in an attorney’s hands for collection; that he procured from the maker an assignment of a life insurance policy as collateral; that in order to perfect the collateral he brought an action to compel the issuance of a paid-up policy, which was settled by its issuance; and that he retained the policy and the note as an uncompleted collection until 1897, when he surrendered it to the president of the bank upon the assurance that he would be paid for his' services, — is held sufficient to sustain a finding that there had been no termination of the employment, at least until the surrender of the policy.</p> <p>3. Where services are rendered to a corporation by one of its officers, which are clearly outside of his official duties, a recovery may be had therefor under implied contract, if the circumstances be such as to fairly imply that it was expected that the services were to be paid for; and in considering whether such implied contract was proven, or whether the services were rendered gratuitously, the nature of the corporation and its business, the extent and character of the services, the comparative amount and value of the services of other officers, the extent of the officer’s interest in the corporation, as well as all the other surrounding circumstances, are to be considered.</p> <p>4. Where a bank is creditor of the estate of a decedent, and vitally interested in a wise administration thereof, it may contract, either expressly or by implication, to pay one of its officers for his services as administrator of the estate.'</p>

<p> Sale of chattels: Rescission for fraud: Restoration of consideration. </p> <p>The, general rule, that if a sale or agreement be made by means of fraud, the injured party, not being guilty of laches sufficient to estop him, may rescind the same and treat the agreement or sale as void upon condition of his restoring the wrongdoer to his former position, is subject to this exception, among others: If the defrauded person, by reason of the wrongful conduct of the wrongdoer, is rendered incapable of fully restoring the latter to his former position, to. that extent such restoration is not necessary to a rescission of such sale or agreement.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>(1) Appeal: Orders: Identification of papers. (2) Municipal corporations: Injury from defective sidewalk: Notice: Description of defect: Variance.</p> <p>1. Upon appeal from an order which contained no recitation of or-reference to the records and papers used upon the application therefor, the clerk’s return contained the order and, under the same-cover, the application therefor and an affidavit; the application making reference to the entire record, the bill of exceptions, and the annexed affidavit. The clerk certified that “the annexed-order . . . notice, and undertaking on appeal” were all the. originals filed in his office. Held, not a sufficient identification of the papers relied upon on the hearing of the motion to warrant, entertainment of the appeal.</p> <p>2. The notice of an injury, given to' a city under sec. 1339, Stats. 1898, and the complaint in an action therefor stated in substance that the plaintiff was thrown down and injured by reason of her foot going,into a hole in the sidewalk, and specifically described the defect as consisting of a missing board or plank from the sidewalk, which caused a deep hole therein. On the trial she testified to the absence of the board and the resulting hole in the sidewalk, but her testimony further showed that her injury was caused by a loose and slanting board upon which she attempted to walk and which “jumped up ” or “ rocked,” turning her foot and causing it to go into the hole. Held, that this failed to show a causal connection between the fall and the defect specified in the notice-, and complaint, and that a verdict for defendant should have been directed.</p>