Volume 107 — Wisconsin Reports

<p>Appeal from a judgment of the circuit court for Wal-worth county: FbanK M. Fish, Circuit Judge.</p> <p>They contended, inter alia, that only those qualified to be signers of an application for the laying out of a highway can appeal from the refusal to grant such application. In this case the relator, not being a resident of the town, was not qualified to sign a petition for the laying out .of the highway in question. Sec. 1265, Stats. 1898; Damp v. Dane, 29 Wis. 419; /State ex rel. Iola v. Nelson, 57 Wis. 147.</p>

<p>Appeal from a judgment of the circuit court for Racine county: FRANK M. Fish, Circuit Judge.</p> <p>The plaintiff ys a Wisconsin corporation, doing business at. Racine, Wisconsin, and engaged in the manufacture of plows, cultivators, and other agricultural implements. The defendant is- an Indiana corporation, which makes metal wheels at. La Porte, Indiana.</p> <p>This is an action to recover damages for an alleged breach of warranties upon the sale of certain metal wheels to be used upon cultivators and other agricultural implements, and which were purchased by the plaintiff of the defendant under a written order made August 16, 1888, and accepted by the defendant. The material parts of the order are as-foliows:</p> <p>“You may enter our order for our season’s wants on the following styles of wheels, and at the prices and terms named</p> <p>32-in. walking cultivator wheel, 1£ rim, half oval, 8 steel or 10 iron spokes, ■§.$ 60 each</p> <p>31-in. walking cultivator wheel, 1J- rim, half oval, 8 steel or 10 iron spokes, f. 59 each</p> <p>32-in. sulkey wheel, 2J rim, half oval, 14 steel spokes, •§■. 1 00 each</p> <p>24-in. wheel, 2-in. double-channel-rim, 8 steel spokes, $. 70 each</p> <p>“. . . You to guarantee the wheels against breakage-in shipping, and against defects in material and workmanship. . . •</p> <p>The wheels wrere to be made after a peculiar style and pattern, samples of which had been previously submitted to the plaintiff, according to a patent owned by the defendant,, and their peculiarity consisted in the fastening of the spokes; to the hub; the spokes passing loosely through an outer hub, and resting with their ends against an inner hub or removable box, wherein the axle revolved, and where they were held in position by a nut having upon its inner surface a circular, V-shaped flange, which was screwed up on the end of the box so as to engage the flange into similar shaped notches cut into the spokes. Under the option in the order,. the plaintiff chose to have its cultivator wheels made with ten iron spokes. Under the terms of the general order above-re “erred to, the plaintiff thereafter, and during the ensuing year, or lered from time to time cultivator and p'ow wheels-of the defendant, and the defendant filled said orders; the-wheels so ordered and shipped to the plaintiff amounting to 13,894 wheels, the contract price of which1 amounted to-§9,718.87, all of which the plaintiff paid, except the sum of §1,793.07, which fell due August 22,1889, and §914.28, which fell due April 15, 1890. The plaintiff claimed that all of the wheels so shipped were defective and worthless.</p> <p>This action was once tried, and resulted in a julgment. for the plaintiff, from which judgment both parties appealed to this court, and the judgment was reversed upon both appeals. 90 Wis. 590. Upon that appeal it was held that, under the circumstances, there was no implied warranty of suitableness of the wheels for the purpose intended; that no-oral warranty made prior to the written warranty could be shown; and that any defect in the plan of the whee’s-was not a defect in workmanship; and, in su’-stance, that the only warranty on which there could be recovery was an express warranty against defects in material and workmanship,— and the case was remanded for another trial. T.he action has now been tried again, upon the alleged breaches of warranty as to material and workmanship, and considerable new testimony was introduced upon both sides-of these questions. At the close of this trial the plaintiff abandoned its claim of defective material, and rested on the claim of defective workmanship. Upon this question its-testimony tended to show that the spokes were not properly notched and were not of uniform length, and that the flange upon the nut did not go down evenly upon all sides into-the notches, by reason of which the wheels collapsed when in use. The action was tried before a referee, who found that 6,842 wheels were defective in the respects claimed by the plaintiff, and. that they were practically useless and of no market value, and that the contract price of said defective wheels was $4,282.40; that the plaintiff had actually paid out for freight charges to replace defective wheels, and for wheels shipped out to replace such defective wheels, the total sum of $334.68, for which the plaintiff was entitled to judgment, less the sum of $2,707.35, being the balance unpaid upon the contract price, with interest from the commencement of the action,— making the plaintiff’s total recovery $2,685.90. This report was confirmed by the circuit court in all respects, except that it was modified in respect to the amount of damages, and .judgment was ordered for ■the plaintiff for the sum of $4,543.08, less the sum of $2,707.35, balance unpaid on the contract price, together with interest ■on such balance from the time when it was due to the date •of the commencement of the action, amounting in all to '$2,852.14; leaving net balance due the plaintiff of $1,690.94, upon which sum the plaintiff was awarded interest from the ■date of the commencement of the action, at the legal rate, "to the date of the judgment. Judgment was entered in ac■cordance with this conclusion March 22, 1899, in favor of the plaintiff against the defendant, for the sum of $2,604.16 •damages, together writh costs, and from this judgment the •defendant appeals.</p> <p>'They contended, inter alia, that even if the wheels as deliv•ered were unfit for any use as wheels, if they could be made .good at an expense considerably less than the contract price, the plaintiff’s damages would be limited by the expenditure required for that purpose. D. M. Osborne <& Co. v. Carpenter, •'37 Minn. 331; New Yorlc State M. M. P. Co. v. Bemi/ngton, 109 N. Y. 143; H. Birdsall, Sons da Co. v. CaHer, 11 Neb. 143; Miller v. Marvner's Church, 20 Am. Dec. 345; Bradley ■<o. Denton, 3 Wis. 566. The plaintiff’s claim was for unliqui-dated, damages, and interest should have been allowed only from the time they were ascertained by the report of the referee. Laycock v. Parker, 103 Wis. 161; Tyson v. Milwaukee, 50 Wis. 90; Stale ex rel. Sloan, Stevens & Morris v. Warner, 55 Wis. 271; Martin v. State, 51 Wis. 407, 412; Sloan v. Baird, 12 App. Div. 481; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; McMaster v. State, 108 N. Y. 557; Mansfield v. H. Y.G.&H. Ii. R. Go. 114 N. Y. 331; Hooper v. Patterson, 32 Pac. Rep. 514; Gox v. McLaughlin, 18 Pac. Rep. Ill; Pacific P. T. Go. v. Fleisher, 56 Fed. Rep. 899; Louisville G. Go. v. Ha/rgis, 33 S. W. Rep. 946.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. JohNsoN, Circuit Judge.</p> <p>On the 22d .of June, 1894, the Enger-Kress Company-made a voluntary assignment to E. B. Winterhalter, its vice president, and the defendant The American Surety Company became surety on his assignee’s bond. The company’s, business was the manufacture of leather goods in a factory of its own located in North Milwaukee. It had at. the time of the assignment about $38,000 of fire insurance. No effort was made by the assignee to secure consent to assignment of these policies to him, nor was any attempt made to obtain insurance upon either plant or contents. On July 7th the factory and contents were substantially destroyed by fire. Their value was approximately $37,000. Almost immediately thereafter, at the suit of a judgment creditor, a receiver of the assignor corporation was appointed, and on July 21st the court entered an order requiring the assignee to turn over to that receiver all the assets in his hands, subject to a claim for his compensation and disbursements while it had been in his possession. This was done, no account or report of the assignee’s’ dealings with the property having been filed, or passed on by the court. His statement of his charges for compensation and disbursements were made, •and finally allowed by the court, and paid to him by the receiver. The order for this transfer was predicated on invalidity of the assignment for the reason that the bond signed by the defendant surety company did not bear the certificate required by law of surety companies.</p> <p>Much evidence was given in support of a uniform custom of manufacturers to keep their property insured at and in the vicinity of Milwaukee; also of a very general custom of assignees and receivers to maintain insurance. Evidence was also offered as to the ease or difficulty with which insurance could have been procured by this assignee had he made an effort; and that most agents would not have assumed authority without submission to home offices, which would have required four or five days.</p> <p>The court found that it was customary for insurance agents not to write risks on property in the hands of assignees without submitting the 'applications to the home offices of their companies; “ but whether or not the companies would, upon investigation, approve or accept such applications so submitted, or what proportion thereof would be so approved or accepted, was not shown by the evidence.” The court further found that: “ If the assignee, after the assignment, bad made due and diligent effort and had taken all usual and necessary steps to procure the consent of the several insurance companies which had issued the insurance policies to the transfer to him of said policies and the insurance represented thereby, and had also made due and diligent effort and had taken all usual and necessary steps to procure other policies of insurance or new policies to be written upon said property, he would not have been able to have procured such consent, or to have kept said policies alive, or to have secured other and new or additional insurance prior to the date of said fire. No damage was sustained by said plaintiff by reason of the failure of said as-signee to attempt to secure a continuance of the said existing insurance, or to attempt to procure new insurance upon said property.” It was quite conclusively proved that he could, in all probability, have obtained some insurance; but neither how much, on the one hand, nor how little, on the other, is established. The court held as matter of law that the assignee was bound to insure if he could do so “ readily.”</p> <p>The action was brought by a creditor, without an order of court, in the name of the clerk, to recover of the assignee and said surety company the amount of unpaid claims existing against said corporation,— about $23,000 and interest,— to be collected for the benefit of these creditors. Judgment was entered in favor of the defendant surety company, from which the plaintiff appeals.</p> <p>They contended, mter alia, that an action upon the bond of an assignee cannot be maintained until after its breach has-been determined by the court in the assignment proceedings. . The court having acquired jurisdiction in the assignment proceedings, tbe statute relating thereto gave exclusive power and authority to that court to try and determine all questions as to the assignee’s qualifications, competency, his negligence, misapplication of funds, failure to account therefor, or any breach of duty which he may have committed with respect to the assigned estate. Lawson v. Stacy, 82 Wis. 303; Marathon Go. v. Barnes, 86 Wis. 663; Stein v. Ben-edict, 83 Wis. 603; Case v. James, 90 Wis. 320; Magnus v. Sleeper, 69 Wis. 219; Durr v. Wildish, 100 Wis. 411; Sprinkle v. Wallace, 28 Dreg. 198. There was no duty to insure. Neither the deed of assignment nor the bond required or authorized the assignee to insure or keep insured the property. The assignee must be governed throughout by the terms and provisions of the instrument of assignment, so far as they can be legally pursued. Burrill, Assignments (6th ed.), § 350; Geisse v. Beall, 3 Wis. 367-388; 2 Perry, Trusts, § 527; Burr v. McEwen, Baldw. C. C. 154; Lovat v. Leeds, 31 L. J. Ch. 503; Angelí, Insurance (2d ed.), § 73; De Forest v. Fulton F. Ins. Go. 1 Hall, 84; Insurance Go. v. Ghase, 5 Wall. 509; Page v. Western M. dé F. Ins. Go. 19 La. 49; 1 Phillips, Insurance, 153; Clark v. Graig, 29 Mich. 398; Hamm, v. J. Stone dé Sons I. S. Go. 13 Tex. Civ. App. 414; Bailey v. Gould, 4 Y. & O'. 221; Estate of Johnson, 11 Phila. 83.</p>

<p> Railroads: Personal injury: Court and jury: Special verdict: Splitting up damages: Appeal: New trial. </p> <p>X. In an action for personal injuries received jn a railway collision, a physician who examined the plaintiff about six months after the injury, with a view to testifying on the trial, testified that he then discovered a displacement of the semilunar cartilage of the left Iknee and replaced it, but did not disclose the fact to the family physician although the latter was present at part of'the examination. No symptoms of any such displacement were discovered, either by the same physician upon both prior and subsequent examinations, or by plaintiff’s family physician who examined her repeatedly and attended her to the time <5f the trial, and no reference thereto was made in the complaint unless under a general .allegation that plaintiff was “ otherwise injured.” It was admitted that a person could not walk or stand upon a limb during such a displacement, and that -plaintiff walked without assistance immediately after the accident and from time to time thereafter. Held, that a finding of the special verdict that said cartilage was displaced by the collision was unsupported by the evidence, especially in view of the testimony of all the other medical experts that upon the admitted facts there could have been no displacement by the accident.</p> <p>3. In an action for personal injuries the jury by a special verdict awarded plaintiff §4,000 for displacement of the semilunar cartilage, §200 for impairment of hearing, and fixed her damages generally at §5,000. On appeal the evidence was held insufficient to sustain a recovery for the displacement of said cartilage. Held, that a new trial would not be granted, but the judgment would be affirmed except as to the damages awarded for such displacement.</p>

Morion to set off judgments. Motion to set off judgment in this court for costs in favor of plaintiff against a larger judgment in,another suit in the circuit court for Dane county in favor of the defendant. The plaintiff is insolvent. The only objection is that plaintiff has commenced a suit against defendant for an amount, 'larger than their judgment, in which he is advised and believes that he has a good cause of action.

<p>(1) Reference: Setting aside findings. (2) Money had and received:.</p> <p>1. Where there is ample evidence to support a referee’s findings of fact,. and no clear preponderance against them, the trial court is not. justified in setting them aside.</p> <p>2. Defendant sublet the construction of certain roadbed to D. under a-, contract authorizing it to pay D.’s employees and deduct suciu payments from the amount payable to him. D. employed plaintiff to run a boarding camp and store. Defendant paid D.’s employees on monthly pay rolls furnished by him, deducting the amount of advances charged to each man including board, etc., furnished by plaintiff, but there was . no contract made by defendant with plaintiff, or with D. for his benefit, that it would reserve the amount due plaintiff from D.’s employees and pay the same to plaintiff. When said pay rolls were presented D. owed, and still owes, defendant an amount in excess of all such deductions. Held, that plaintiff could not recover as for money had and received the amounts deducted by defendant by reason of the board, etc., furnished by plaintiff. Sterling v. Ryan, 72 Wis. 86, distinguished.</p>

E. SutherlaND, Judge. On April 7, 1896, the plaintiff, acting for her husband, leased of defendant the lower flat of a building owned by him for a term of month to month. At the rear of the building was a narrow platform, with four or five steps leading to the ground, which it is claimed the defendant agreed to replace by a new one.

II. JonNSON, Circuit Judge. ■ Plaintiff, having sued defendant as a New Jersey corporation, garnished Anton Stollenwerk et al. They answered, admitting an indebtedness of $712.50 to a corporation of the same name as the defendant, but alleged that their creditor contended that it was not identical with, but entirely distinct from, the defendant sued by the plaintiff.

<p>Ejectment: Res adjudicata: Betterments: Parties: Writ of error: Variance from record: Immaterial error.</p> <p>1. On the final settlement of an estate in 1885, defendants being parties; to the proceeding and the court having jurisdiction of the subject matter and the persons, the county court found and adjudged that, plaintiff’s grantor was the legitimate child and heir of a deceaseds devisee under testator’s will, and entitled to an interest in the real: estate in question. In 181)5, on application of defendants to set aside' so much of the judgment of the county court as adjudged plaintiff’s grantor entitled to a share in such real estate, the county court: found that no fraud had been practiced, and reaffirmed its judgment. ■ On appeal to the circuit and supreme courts, respectively;, the judgment of the county court was in all things affirmed. Iru ejectment by plaintiff to recover his share of the estate, it was held’. that the judgment of the county court was res adjudicata as to the-questions of the legitimacy and heirship of plaintiff’s grantor.</p> <p>3. Where, in ejectment, it appears from the undisputed evidence that, the amount of rents and profits received by the defendants during-the term of their adverse possession exceeds the amount paid by them for repairs, improvements, and taxes, it is not error to refuse a. request to have the jury assess the value of the improvements made and taxes paid by them.</p> <p>8. In an action of ejectment a tenant of the adverse claimants who retains possession of the premises is a necessary defendant under sec. 3075, Stats. 1898, and should be joined in a writ of error to review a judgment against him and the other defendants; but a failure in that regard is not a defect going to the jurisdiction, but an irregularity which may, in the discretion of the court, be cured by amendment.</p> <p>4 A motion to dismiss or quash a writ of error because of such a defect will not be granted unless made soon after the case reaches-the supreme court.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>This is an action for the construction of the will of Amos H. Gardner, who died testate at the city of Milwaukee, June 23, 1883, leaving a widow, Lydia Gardner, and three children, viz. Henry D., Mary L., and Oharlie H. Gardner; his estate, real and personal, amounting to over $100,000. By his will, after making certain specific bequests, he gave his widow a life estate in the homestead and its contents, with the remainder in fee to his daughter Mary L. The will then proceeded as follows:</p> <p>“ Fifth. I will and bequeath unto my beloved wife, in addition to the foregoing, and in lieu of dower in my real estate, all of the net income, rents, and profits, and interest, and product of all of the remainder of my property and estate, real, personal, or mixed, whatever and wherever situate, without any account to be given thereof whatsoever, to be by her held and owned absolutely; and if from any accidental cause such income, interest, rents, or product shall be insufficient for her comfortable support suitable to her situation or rank in life, then, and in that case, I direct and empower my executors from time to time to pay or make over to her in the most convenient form they are able so much of the body of my estate as shall be necessary for such suitable and comfortable support of my said beloved wife, Lydia/ and I hereby empower my executors, or the acting executor, if but one, in case it is absolutely necessary to do .so for the purpose last aforesaid, to sell and convey such of my real estate as may in his or their judgment be sold to the best advantage for said purpose, but for no other; neither the said homestead nor any part thereof shall be sold for such purpose.</p> <p>“ Sixth. I give, devise, and bequeath all of the remainder, rest, and residue of my said estate after the death of my said beloved wife, Lydia, equally, share and share alike, unto my son Henry D. Gardner, daughter Mary L. Gardner, and Frederick T. Day, their heirs, executors, administrators, and assigns, forever. The said bequest and devise to said Frederick T. Day being solely and only upon the trust following, that is to say: That he hold, keep, rent, or invest the same as in his judgment he may deem best, hereby empowering and authorizing him to sell, convey, and convert realty into personalty, and to again sell and reinvest in personalty said trust estate, as in his judgment he deem best, from time to time on until said trust is closed, and that he pay over the income thereof quarterly to my son Charlie IT. Gardner during the natural life of him, the said Charlie JY., and in case my said son Charlie JY. shall reform, and for three years, in the opinion of my said trustee, lead a moral and sober life, and shall desire to go into business, then, and in that case, my said trustee shall advance and pay over to him out of the body of said trust fund a moderate capital, not exceeding one fourth of said trust fund or share; and if my said son shall for seven years from and after my death, or at any one continuous period of time, lead a moral and soler life, in the opinion of my said trustee, then, and in that case, to pay and deliver, deed or convey, to him the remainder of such share or trust fund; otherwise in default of such reformation and sober life, at the death of my said son Charlie JY. said trust shall be closed, and the whole of said share or trust fund then remaining shall belong to, be conveyed, paid, or delivered unto the legal heir or heirs of him, the said Charlie JY. Gardner. In case my said son Charlie JY. shall die before me, the one third of said remainder so bequeathed in trust for him shall belong to, and I give and bequeath the same, to my said son Henry JD. Gardner and my said daughter Mary L. Gardner in equal portions, share and share alike, and to their heirs and assigns, forever. The trust herein created in favor of my said son Charlie JY. is not personal in or to said Erederick T. Day, but is intended to be and may be executed in every respect by his successor in said trust, or by any trustee appointed by any court having jurisdiction over said trust; 'my intention being to make a generous, and at the same time safe, provision for my said son Charlie JY. Gardner By the seventh clause he appointed his wife, Lydia, and Erederick T. Day executors of the will.</p> <p>The facts in the case are undisputed, and are contained in the pleadings as follows: At the time of the testator’s death, his widow, LycUa, was sixty-one years of age, and she is still alive and in good health; his son Henry D. was about forty years of age, Oharlie N. about thirty-five years of age, and Mary L. about twenty years of age. The will was duly probated, and letters issued thereon to the widow alone, and the estate was thereafter settled, and an order of assignment made February 3, 1885. The estate assigned consisted of a certain amount of capital stock in an incorporated business concern, about $40,000 in notes and mortgages, three business buildings in the city of Milwaukee, and about eleven acres of land in Milwaukee county, outside of the city limits. By the order of assignment the homestead, with its contents, was assigned to the widow for life, with the remainder to Mary L.; and the residuary estate, real .and personal, was assigned to the widow for life on the terms specified in the will. The daughter, Mary L., after arriving at the age of twenty-one years, made a will, devising her entire estate to her mother, and died May 26, 1886. Her will was afterwards duly probated, and her whole 'estate was assigned to her mother June 9, 1887. In November, 1887, Lydia brought action for the partition of the real estate against Henry D., Oharlie H., and Frederick T. Day, as trustee, which action resulted in the real estate being partitioned between the parties, quitclaim deeds being executed to carry out such partition; and at the same time the parties agreed upon a division of the personal property, all of which, however, was.left in the hands of Day to manage. This partition of real estate and division of personal property was all made subject to the life interest of Lydia under the will. Day remained in possession of the personal property until June 3, 1893, when he resigned, and the plaintiff was appointed trustee under the will in his place, and accepted the trust, and thereafter received from Day all of the personal property held by him in trust, except $1,488.93, which was never paid over. Since that time the trustee has paid to Lydia the net income received from said trust property as fast as received.</p> <p>In Eebruary, 1899, the defendant Charlie W. and his mother, Lydia, claimed that Charlie N. had then lived a moral and sober life for seven continuous years, and that, under the terms of the will, the trust should be closed, and the remainder in the trust property should be conveyed to Charlie N. by the trustee, subject to the life estate of Lydia. The plaintiff admits that Charlie JL. has led a moral and sober life for seven years prior to the commencement of this action, but, being in doubt as to whether the trust is thereby closed, or can be closed, before the death of the mother, brings this action for construction of the will; all of the parties in interest being made parties to the action.</p> <p>The circuit judge concluded that the trust was closed, and that it was the duty of the trustee to convey the remainder in the trust estate to Charlie W., and entered judgment accordingly, from which judgment the trustee appeals.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>April 1, 1896, a quorum of the members of the board of supervisors being present, duly assembled for the transaction of business, by a majority vote of such members but by less than a majority of all of the members of such board, a resolution was in form adopted to the effect that certain children, theretofore duly committed according to law to the care and custody of the respondent and then in such care and custody, be removed therefrom. May 18,1896, pursuant to such resolution, surrender of such children was duly demanded of the respondent, and was refused. Thereafter the respondent filed a claim against the county of Milwaukee for compensation for the care and support of such children. That part of the claim relating to the time subsequent to the date of such demand was disallowed. The respondent appealed to the circuit court for Milwaukee county, where a trial was had, resulting in a judgment against the county, upon the ground that the resolution referred to was not passed by a-majority of all the members of the count}*- board. The county appealed.</p>

<p> •Corporations: Stockholders: Winding-up action: Debtor and creditor: Officers: Misfeasance and nonfeasance: Gratuitous service. </p> <p>1. An action to wind up and settle the affairs of an insolvent corporation may be maintained by a stockholder, when it appears from the complaint that the relation of debtor and creditor exists between the corporation and the plaintiff, and it does not appear that the action results from the mere fact that plaintiff is a stockholder.</p> <p>2. In an action by a creditor to wind up and settle the affairs of an insolvent corporation and enforce liability of officers for malfeasance and nonfeasance, the fact that it appears on the face of the complaint that a receiver of the corporation has been appointed in the same action, does not render the complaint demurrable.</p> <p>3. An officer of a corporation is not relieved from liability to creditors of the corporation for acts of misfeasance and nonfeasance by reason of his services having been performed gratuitously.</p>

<p> Municipal corporations: Injuries from defective sidewalk: Ice and snow: Proximate cause. </p> <p>1. In the absence of structural defects which combine with the action of the elements in causing accumulations of ice and snow on a sidewalk, the condition of a sidewalk crossing an alley, which has become uneven by falling snow and the melting and freezing of the same while used by persons and teams, does not constitute an actionable defect.</p> <p>2. Recovery cannot be had against a city fon personal injuries happening through a fall on an icy sidewalk, where the plaintiff’s evidence leaves the cause of the fall open to mere conjecture.</p> <p>As to liability of municipal corporations for ice on streets or sidewalks, see note to Hausmann v. Madison (85 Wis. 187), in 21 L. R. A. -263.— Rep.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. II. Johesoit, Circuit Judge.</p> <p>Action to enforce a claim for a lien for architect’s services under the statutes in relation to the liens of mechanics- and others. The complaint was in the usual form, except that it stated that the plaintiff’s services were performed in making plans and specifications for a building to be erected,, without the usual allegations showing actual work upon the building. Defendant answered, putting in issue, in the main, all the material allegations of the complaint. The controverted facts on the evidence were as regards the nature of the contract under which plaintiff’s services were performed and the amount of the indebtedness which accrued for such-services. On those questions the court signed findings to-the effect that it was agreed between plaintiff and defendant that the former should prepare plans and specifications-for a building to be erected on the premises described in the-complaint and superintend the erection of such building for §1,000; that plaintiff fully performed his part of such agreement as to the making of plans and specifications, and that, the work was fully accepted by the employer; that defendant thereafter abandoned the idea of erecting a building; •according to such plans and specifications, and ordered plaintiff to make new plans and specifications for an entirely ■different kind of structure; that plaintiff fully complied with ■such order; that his work was accepted by the employer and the excavation for the building commenced in accordance therewith; that the reasonable value of plaintiff’s work was $1,400, no part of which has been paid. There were sufficient findings as to the filing of the lien claim and the ■commencement of the action. A lien judgment in plaintiff’s favor was rendered in accordance with the statutes on the subject of liens of mechanics and material men, the amount ■due plaintiff being fixed at $1,400 and interest, from which this appeal was taken.</p>

<p> Action, at law or in equity? Settlement for seduction of daughter: Rights of father and daughter in money paid: Death of child: Parol evidence: Receipts. </p> <p>1. After the seduction of plaintiff by P. a settlement was made, whereby, for a gross sum paid by P., the claims of plaintiff and her father were released, and the obligation of P. to support the child born to plaintiff was assumed by her father. The money was all paid to the father. Held, that an action by the daughter against the father, to determine and recover the part'thereof to which she was entitled, is an action at law, but maintainable on equitable principles.</p> <p>3. A father and daughter having settled, for a gross sum paid the father, all their claims against P. for the seduction of the daughter, and the father having by such settlement agreed with P. to support and maintain the child born to the daughter, the fact that the child died soon after does not increase the amount the daughter is entitled to: she is only entitled to such portion of the money paid, as, in the contemplation of the parties, was paid in satisfaction of her claim.</p> <p>3. The memorandum of settlement with P. being in writing, admission of" the testimony of P. to the effect that the money was paid over for the benefit of the daughter was-error.</p> <p>4 In the absence of fraud or mistake a payment cannot be shown to relate to a subject matter different from that stated in the receipt given therefor.</p>

C. Ludwig, Judge. This was an action in trover for conversion.

<p> Pledge: Voluntary assignment: Fraudulent conveyances: Intent: Corporations: Misconduct of officers: Liability of pledgee of stocle. </p> <p>1. An assignment and transfer of stock in a corporation to an attorney as trustee for a creditor of the transferrer, with the understanding and agreement that any surplus remaining in the hands of the-trustee after payment of the creditor’s claims should be immediately returned to the transferrer by the trustee, is merely a transfer as collateral security by way of pledge, the surplus, if any, remaining the property of the pledgor.</p> <p>3. A debtor pledged practically all his property to an attorney as trustee- . for the debtor’s wife to secure a debt substantially less than the-value of such, property. Held, that the transaction did not constitute an assignment for the benefit of creditors, since the pledgor still retained a valuable interest in the property, which was subject to execution under- sec. 3988, Stats. 1898.</p> <p>3. An intent to defraud creditors cannot be inferred from the fact. that an insolvent debtor, by paying or securing one creditor, necessarily prevents other creditors from receiving anything or as-much as they would otherwise receive.</p> <p>4. The pledgee of practically all the stock in a corporation is not liable-tor depreciation in the value of the corporate property due to the giving of a mortgage on the corporate property, by its officers, in violation of an injunction against the corporation.</p>

WilliaMs, Judge. The plaintiff sues as administratrix to recover for the-death of Charles Hulien, her husband, which occurred August 3, 1894, at a station called Wittenberg, in Shawano county. The deceased was a locomotive engineer, and was employed as such by the defendant at the time of his death, and had been so employed for eight or nine years previously. Upon the day of his death he was operating an engine attached to freight train No. 43 upon the defendant’s-road.

II. JohNsoN, Circuit Judge. Action to foreclose a mortgage. The respondents, Elizabeth McNamara and Mary Ann McNamara, and the appellant, Francis 8. McNamara, all joined as defendants, were each personally liable for the mortgage indebtedness. The ■only contest was between appellant and respondents. Issue was joined between them by the answer of respondents duly •served upon appellant, and his answer thereto.

Appeals from a judgment of the circuit court for Milwaukee county: D. II. JohNsoN, Circuit Judge. The defendant Grant Marble Compcmy is the equitable owner of the land described in the complaint, the title thereof being held in the name of the defendant William J. Grant for convenience. In March, 1898, the Grant Marble Company employed the defendant Jorgenson to drill a well upon its property.

Gf. Siebeckee, Circuit Judge.. This action was commenced to recover upon an undertaking given by the defendant upon an appeal to this… Held: in effect, that, by~ the failure of plaintiffs to pay the taxes, they failed to comply with the contract on their part, and that the deposit of the deed in escrow was not a cbnveyance in fee simple; that the plaintiffs waived the performance of the contract •on. the part of W. H. and Mary Jacobs; that the contract of January 9, 1899,…

BeNNEtt, Circuit Judge. This is an action in ejectment for the recovery of 120 acres of land in Grant county, Wisconsin, both parties claiming title under one Thomas Stewart, now deceased, the plaintiff being the administrator de J>onis non of the estate •of said Thomas Stewart.

The complaint, unverified, alleged that the defendants were copartners under the name of H. 0.

H. JohNSON, Circuit Judge. Appeal by plaintiff from an order sustaining demurrer to tbe complaint.

<p>Supreme court: Original jurisdiction: Villages: Validity of incorporar tion.</p> <p>An application to test the validity of the incorporation of a village, based on objections that the territory incorporated did not contain the requisite population per square mile, and that a majority of the ballots cast by the electors was not in favor of the incorporation, does not state facts of such wide and public concern as to warrant the exercise of the original jurisdiction of the supreme 'court.</p>

I). TIastiNGS, Je., Circuit Judge. The plaintiff, appointed as receiver in supplementary proceedings upon execution against August Beaudry, commenced this action in 1896 against the defendants to recover from Zelia Beaudry moneys and property in her hands, claimed to belong to August, her husband. The facts disclosed, so far as material, were that August Beaudry had been a moderately successful laborer and oper■ator in timber lands up to 1888.

<p> Divorce: Cruel and inhuman treatment: Appeal: Costs against wife. </p> <p>1. The fact that a man was of a sullen, morose, and fretful temperament and disposition, rendering him uncompanionable as a husband for months at a time, is held insufficient to sustain a divorce-under subd. 5, sec. 2356, Stats. 1898, on the ground of cruel and inhuman treatment practiced by other means than acts of physical violence, where the only evidence that the husband's treatment, was such as to render -it unsafe for the wife to live longer with him was her testimony that she brooded over her troubles until she became very nervous; that she took medicine for such nervousness; but that her health was good “except for such nervousness.”'</p> <p>2. In this case the refusal of the clerk to tax the costs on appeal against, the respondent wife was reversed.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: G-eo. W. Bubnell, Circuit Judge.</p> <p>On the 28th day of June, 1898, articles of incorporation of the Oshkosh, Algoma <& Blade Wolf Railroad Company were filed in the office of the secretary of state, under sec. 1820, S. & B. Ann. Stats. The articles stated that the corporation was formed “for the purpose of constructing, maintaining and operating a railroad for public use in the conveyance of persons.” The railroad to be constructed by the corporation so attempted to be formed was stated in the articles to be about 1.1 miles in length, running from a point of junction with the line of the Citizens’ Traction Company (an electric street railway line) at the city limits of the city of Oshkosh, through the towns of Algoma and Black Wolf, in Winnebago county, to a point in section 1 on the shores of Lake Winnebago, in said town of Black Wolf.</p> <p>Immediately after the filing of its articles, the new corporation filed in the circuit court for Winnebago county a~ petition for -the purpose of condemning a strip of land sixteen feet in width across the right of way of the main track of the Chicago <& Northwestern Railway Company, such strip being a part of a highway which crosses said' Chicago cfi Northwestern right of way, and being desired for crossing purposes. Commissioners were appointed, who found it necessary to take the sixteen-foot strip for crossing purposes, and who also determined the points and manner of the crossing, and authorized the carrying of trolley wires over the crossing, and fixed the compensation to be made for the right of way and crossing. The Chicago db Northwestern Railway Company appealed from the award, and, upon the trial of the appeal, moved to dismiss the proceedings upon various grounds,— among others, upon the ground that the petitioner was not a corporation entitled to condemn the lands of the defendant, or to cross its railway. The objections being overruled, the defendant declined to introduce any evidence, and the appeal was dismissed, from which judgment of dismissal the Chicago & Northwestern Railway Company appeals.</p> <p>They argued, among other things, that the court erred in holding that the petitioner was a public corporation with the right of eminent domain. Wisconsin W. Co. v. Winans, 85 Wis. 26; Mansfield, C. & L. M. R. R. Co. v. Ciarle, 23 Mich. 519. The title to no part of appellant’s right of way carrying the main track can be taken by condemnation proceedings. Subd. 6, sec. 1828, and secs. 1851, 1854, Stats. 1898; Toledo, A. A. db N. M. R. Co. v. D., L. & N. R. Co. 62 Mich. 564; Winnebago F. Mfg. Co. v. W. M. R. Co. 81 Wis. 389; Clay v. Pennoyer Creelt 1. Co. 34 Mich. 207; Fox v. Holcombe, 34 Mich. 300; Chicago da M. L. S. R. Co. v. Bmford, 23 Mich. 418; Smith v. C. db W. I. R. Co. 105 Ill. 511, 513.</p> <p>They contended, inter alia, that the crossing sought was a public use. ■Independent Order of F. v. United Order of F. 94 Wis. 234, 239, 240; Schroeder v. D., G. R. db M. R. Co. 44 Mich. 387; McAuley v. C., C. da I. C. R. Co. 83 Ill. 348; Farnham v. Delaware & H. C. Co. 61 Pa. St. 265; secs. 1820, 1828, 1845, 4181, Stats. 1898; Butte, A. db P. R. Co. v. M. U. R. Co. 16 Mont. 540, 50 Am. Sfc. Rep. 508; Talbot v. Hudson, 16 Gray, 417; Aldridge v. T.} O. do D. B. Oo. 2 Stew. & P; 199, 23 Am. Dec. 307.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. Buenell, Circuit Judge.</p> <p>Action at law to recover of a married woman on her promissoi’y note. The question presented for adjudication was whether the note was given by defendant concerning her separate, property or business or merely for the debt of her husband. The evidence was to the effect that plaintiffs, as bondsmen for defendant’s husband and one Grill on a building contract, became liable to and did pay the sum of $1,700, by reason whereof the principals became indebted to them to that amount; that defendant gave the note to cover, in part, such indebtedness, she receiving no consideration therefor whatever. There was some evidence to the effect that defendant said, before the note was given, that it was her duty to pay $600, the amount called for by the note. There was also evidence to the effect that some of, the money received on the building contract was applied by defendant’s husband on a note to which she was a party; also evidence that before plaintiffs made the payment of $1,700, defendant promised to give the note. At the close of the evidence plaintiffs’ counsel requested a finding as to whether defendant gave the note in consideration of money applied to her use, which was represented by the loss sustained by the bondsmen; also whether plaintiffs settled their liability as bondsmen in consideration, in part, of the note in suit. The requests were denied. A verdict was directed for the defendant, and judgment was rendered accordingly.</p>

<p>•Special verdict: Instructions to jury: Municipal corporations: Defective streets: Personal injuries: Negligence: “ Ordinary care: ” Intoxication: Contributory negligence: Notice: Measure of damages.</p> <p>1. When a special verdict is to be rendered, instructions, whether ashed by the parties or given by the court, appropriate to each question, should be submitted to the jury in immediate connection with the question to which they are, respectively, applicable, and a failure in that regard is error. Instructions only applicable to a general verdict should not be given.</p> <p>:2. Under sec. 1339, Stats. 1898 (imposing responsibility on the municipality for any damage which shall happen to any person by reason of the insufficiency or want of repair of any street within its limits), a special verdict, finding in the disjunctive that the street was “in a defective or dangerous con'dition or out of repair,” without any other fact to support it, fails to show actionable negligence and is fatally defective; and the fact that the finding is in the words of sec. 20, subch. VIII, of the city, charter (ch. 123, Laws of 1891), which does not assume to impose' any liability on the city but merely relates to notice, does not render it sufficient.</p> <p>Z. A hole in the street, close to the sidewalk, was two feet long and fifteen inches wide, in the shape of a half moon, and had apparently been caused by the washing of surface water escaping from the street. Its dimensions and the duration of its existence were sharply in dispute. Held, that it was not, as matter of law, such •a defect as would make the city absolutely liable for a personal injury caused thereby.</p> <p>4. In such case it is error not to submit, as part of the special verdict,. a question as to whether the city authorities ought, under all the circumstances, reasonably to have anticipated that an accident might happen and injury be sustained by travelers in the street,— the court’s attention having been directed to the matter by a request for the submission of an objectionable question embodying the idea.</p> <p>5. In an action for personal injuries from a defective street, an instruction that “Negligence means this: It means a want or lack of ordinary care and prudence. Ordinary care and prudence is such care and prudence as is exercised by the mass of mankind in their own daily affairs,” without qualification or limiting it to the same or similar oircumstances to those in issue, is error; and such error . is not cured by afterwards correctly instructing the jury that ordinary care and prudence means such care and prudence as persons of ordinary care and prudence exercise under similar circumstances. ■</p> <p>6. Where, in an action for personal injuries from a defective street, the issue of plaintiff’s intoxication is submitted to the jury, the-defendant is entitled to an instruction that, if plaintiff was intoxicated, such intoxication is evidence from which the jury may infer that plaintiff was guilty of contributory negligence, the instruction being requested in conjunction with another connecting such intoxication with the accident.</p> <p>7. Where, in an action against a city for an injury from a defective-street, the evidence shows that the plaintiff was very much intoxicated at the time of the accident, it is a question for the jury, under proper instructions, whether, under all the facts and circumstances in the case, such intoxication contributed to produce the injury.</p> <p>8. Sec. SO, subcli. VIII, of the charter of the city of Menasha (ch. 138, Laws of 1891) provides that the city shall not be liable for damages for injuries from defective streets, unless it be shown that one of the aldermen had actual knowledge of the defect, or unless the defect shall have existed three weeks, provided that knowledge shall not be presumed from the lapse of such period. Held, that actual knowledge not being relied upon and the existence of the defect being for the jury, an instruction to the jury that if they found the defect had existed for three weeks prior to an injury therefrom they might presume and find the city had knowledge thereof, is erroneous: the instruction should have been so framed as to permit the jury to find whether, under all the facts and circumstances of the case, the conditions were such as to bring constructive notice home to the city.</p> <p>9. In an action against the city for a broken leg caused by a defective-street, happening in November 1891, it is error to admit the evidence of plaintiff's physician that he performed an operation on. plaintiff’s leg in the summer of 1898 for which he charged $100,. there being no testimony showing any necessary or causal connection between the injury and the subsequent operation.</p> <p>10. Where, in an action against a city for an injury caused by a defective street, a witness testifies that he passed the place of accident while plaintiff was lying there, but that it was too dark to recognize iVho was there, it is error to afterwards recall the-witness and permit him to testify, over objection, that he saw no-indications that the man lying there was drunk.</p>

<p> Wills: Fraud by attorney in drawing: Costs. </p> <p>1. In a contest over the probate of a will giving a large share of the testator’s property to his son R. and disinheriting X, evidence that the testator declared on many occasions that R. should have no more of his property, and that the testator was not able to understand enough English to comprehend the will in question, is held insufficient to show that he was defrauded by an attorney who drew the will, and supposed he was disinheriting R. and providing for J.</p> <p>2. Where the facts hardly allow belief in the good faith of the contestant of a will in.appealing to the circuit court from the action of the'cóunty court in admitting the will to probate, it was not an abuse of discretion to award costs against the appellant.</p>

<p> Master and servant: Personal injury: Minors: Unguarded machinery: Assumption of risk: Oourt and jury. </p> <p>1. While a sixteen year old boy, at the close of his first day’s work in defendant’s paper mill, was putting on his coat preparatory to quitting work, in an open space a few feet wide between unguarded gearing on a paper machine and closets in which clothing of employees was kept, he backed up against the gearing and the garment was drawn into it, and he was injured. In an action to recover therefor it appeared, among other things, that plaintiff had worked about other paper mills for two years; that he knew there was danger around the -wheels, but did not at the time notice those which caused the injury, although he could have seen them had he' been facing them; and that there were vacant spaces in the mill where he might have changed his clothes in safety. Held, that he assumed the risk as matter of law, even though he had not been warned concerning the danger. Winslow and Dodge, JJ., dissent.</p> <p>2. In such a case the relation of master and servant continued to exist, although at the time of the injury plaintiff was changing his clothes preparatory to going home.</p>

<p>Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. Buknell, Circuit Judge.</p> <p>This is an action in equity, brought to offset a judgment obtained by the defendants Carey against the plaintiff, Sta'n-ley, against another judgment obtained by Stanley against the defendants Carey. The facts are not materially in dispute.</p> <p>On the 14th of February, 1889, the plaintiff commenced an attachment suit for an instalment of interest not yet due upon a note of $24,281, which had been previously given by the ’ Careys to Stanley. In this action the sheriff seized a large quantity of cranberries and cranberry boxes and other personal property upon his writ of attachment, and the same were totally destroyed by fire a few days after the seizure, with no insurance. The affidavit of attachment was traversed by the Careys, and trial had of the traverse, and the traverse sustained. Thereafter the damages of the defendants were assessed, and a special verdict rendered upon such assessment, finding the value of the property destroyed, and the amount incurred by the defendants for attorney’s fees in obtaining dissolution of the attachment. The circuit court'refused judgment for the value of the property destroyed, but gave the- Careys judgment against the plaintiff for the amount of attorney’s fees incurred. An appeal having been taken from this judgment by the Careys, that part of the judgment refusing to allow the Careys judgment for the value of the property destroyed was reversed by this court February 5, 1895. 89 Wis. 410. Judgment was en-, tered upon the remittitur January 29, 1897, for $6,603.77. During all this litigation the defendants Bouck and Wood were attorneys for the Careys, and it is found by the court that their services and disbursements therein amounted to $3,406, which has never been paid.</p> <p>On the 15th of April, 1890, Stanley commenced a foreclosure action in the United States court, based upon the same note before mentioned, and a real-estate mortgage accompanying the same, given by the Careys. In this action judgment of foreclosure was rendered December 4,1890, and thereafter the mortgaged real estate was sold, and on the 1st clay of March, 1892, judgment for deficiency was rendered against the Oareys for $10,154.70. The Oareys then were, and ever since have been, insolvent. In 1890 the Careys brought three actions against certain insurance companies upon insurance policies covering the attached property, and recovered judgments in said action in January, 1892, which judgments were, however, reversed in this court. 84 "Wis. 80; 84 "Wis. 208. In these actions Bouch and Wood were attorneys for the Careys and their services therein were worth $1,250, which has never been paid. . February 7, 1895, the Oareys assigned the judgment already rendered, and any judgment to be thereafter rendered, in the' attachment action, to Bouch and Wood as collateral security for the payment of their services and disbursements in that action and in the other actions aforesaid. March 12, 1895, the Oareys assigned the judgment for costs in this court absolutely to Bouch and Wood.</p> <p>This action was commenced by service of summons March 23, 1895, and notice of the assignments above named was .given by Bouch and Wood to the plaintiff March 25, 1895. In August, 1898, Bouch and Wood were made parties defendant in this action on their own motion, and have, thereupon answered, claiming priority for their liens over any setoff in favor of the plaintiff. This issue was tried by the court, and findings made in accordance with the facts as above stated, and Bouch and Wood were adjudged to have a lien on the attachment judgment, superior to the plaintiff’s right of setoff, for $4,306 for services and disbursements in the attachment suit, and for $1,250 for services in the insurance actions; and it was further adjudged that they were entitled to collect said amounts by execution against Stanley. Bouch and Wood afterwards remitted the sum of $1,250 from the judgment. The plaintiff, Stanley, appeals.</p> <p>They contended, inter alia, that no lien for attorney’s fees attaches before judgment, and such lien or an assignment of the judgment, to be enforced, must exist before the right of setoff accrues to the judgment debtor, and notice must be given to such debtor of the lien or assignment and of the intention of the attorney or assignee to assert the same before the debtor asserts his setoff. Courtney v. McGavoclc, 23 Wis. 619; Piee v. Garnhart, 35 Wis. 282; Voell v. Kelley, 64 Wis. 504; Kusterer v. Beaver Ham, 56 Wis. 471; Marshall v. Meeeh, 51 N. T. 140; Gauche v. Milbrath, 105 Wis. 355; Jones, Liens, §§ 217, 223, 234; 2 Am. & Eng. Ency. of Law (2d ed.), 1077, 1080; 1 Am. & Eng. Ency. of Law (1st ed.), 840; Weed S. M. Có. v. Boutelle, 56 Yt. 570; 13 Ency. of PL & Pr. 140. The statute confers, upon the appellant a right to set off the judgment in his favor against the judgment or judgments in favor of the Careys. Such statute also confers a priority over any claim of the attorneys procuring either judgment and over any assignment of such judgment, and especially in this case as appellant’s right to a setoff is prior in point of time to the claim or claims of the respondents as attorneys or assignees, and no notice was served upon appellant of such lien or assignment and of the intention of such attorneys or assignees, to assert or insist upon the same prior to the time when he asserted his right of setoff. Stats. 1898, secs. 2606,4258; Puett v. Beard, 86 Ind. 176; Simpson v. Hart, 14 Johns. 63; Temple v. Scott, 3 Minn. 419; Nicoll v. Nicoll, 16 Wend. 445, and note; People ex rel. Manning v. Common Pleas, 13 Wend. 649; Martin v. Howies, 15 Johns. 405; Fairbanks v. Hev-ereaux, 58 Yt. 359; Johnston v. Humphrey, 91 Wis. 76; Martin v. Kanouse, 17 How. Pr. 146; Pe Figaniere v. Young, 2: Rob. 670. The setoff in question is a setoff under the statute,. and does not depend upon equitable principles which existed prior to the passage of the statute. Subd. 1-4, sec. 4258, Stats. 1898.</p> <p>argued, among other things, that a judgment may; in equity be set off against a judgment, but not against a demand not reduced to judgment. 3 Wait, Pr. 195; Falconer v. Stinson, 44 W. Ya. 547; Kuzum v. Morris, 25 W. Ya. 559; Waterman, Setoff, § 347; 22 Am. & Eng. Ency. of Law, 449; Bimcan v. Bloomstock, 13 Am. Dec. 729; Thorjo v. Wege-farth, 93 Am. Dec. 789; Hudson v. Kline, 9 Grat. 379; McClellan v. Kinnaird, 6 Grat. 352; Mackey v. Mackey, 43 Barb. 58.</p>

<p>Appeals from a judgment of the circuit court for Winnebago county: Geo. W. Buenell, Circuit Judge.</p> <p>Action to recover damages for breach of contract. November 1,1896, the defendants made to plaintiff the following proposition in writing:</p> <p>'“The McCall Company,</p> <p>“ 144-146 West 14th St., New York:</p> <p>“Please deliver to the Nickel Plate, c/o Chic. & Northwestern Train No. 57, freight, at New York, addressed to us,</p> <p>:a stock of the McCall bazaar patterns, at the uniform price •of 7-J cents for each pattern (excepting those retailed for 10 cents, the price of which is 5 cents each), amounting to '$75.00 net, payable ten days after shipment, including Dec. issue.</p> <p>“ Also ship us each month of the new monthly patterns, ■one of each size of each style, at the same prices as above, •commencing with Jan. issue; also fashion sheets monthly, and other publications, etc., in quantities and at prices specified below.</p> <p>“ Monthly shipments to be sent per as above freight.</p> <p>[Then follows a schedule showing quantities and prices.]</p> <p>“ Change of advertisement on back page twice each year (including the first advertisement) free of charge. If other changes are desired, not over $5.00 will be charged for composition and plate on each change.</p> <p>“We will reorder, at the prices above named, once each week, or oftener, all patterns sold, thus keeping a stock of patterns on hand as above specified.</p> <p>“ All goods ordered for delivery after the first stock are to be paid for on or before the 5th day of the month succeeding date of shipment; if not then paid, subject to sight, draft. All prices quoted are net.</p> <p>“We will not sell any other patterns than the McCall bazaar patterns received from you during the term of this-contract order, nor transfer this agency from No. 106 Wisconsin Ave., without your written consent, and will pay all transportation charges from your New York office.</p> <p>“Any patterns received from you under this"contract, order, that are reported discarded by you twice each year — January and July — during the term of this contract, can be returned by us at sixty-five per cent, cost price in exchange for other patterns at cost price, provided such patterns have been received by you and others ordered by us in exchange within sixty days from date of discard report.</p> <p>“ The terms of this contract are to remain in force for two* years from date, and thereafter until the expiration of sixty days’ notice given by either party in writing.</p> <p>“ All terms are in printed or written form.</p> <p>“ Signed in duplicate after being read.</p> <p>“ Purchaser’s name, Ices & G-buenheok.</p> <p>“Address, Neenah.</p> <p>“ State, Wis.</p> <p>“At the end of two years (if you so-desire) take an invoice of your stock of patterns on hand, and if the result of the business shows a loss in the sale of patterns — that is, if yon have paid us more money for patterns than you have received at retail prices — we will, ill thirty days after receipt of the patterns, pay you such loss in cash, providing all the terms of this contract have been fully complied with.</p> <p>“ Received on account of above contract order one dollar,, to be applied on first bill of goods.</p> <p>“Dated November 1,1896.</p> <p>“The McCall Company “ (Incorporated State of New York),</p> <p>“ Per ERAnk S. Pierson.”'</p> <p>The contract thus made between the parties was carried out until the month of July, 1897, at which time defendants refused to take any more goods under it, or to recognize it as binding upon them. The court found facts as aforesaid, and that plaintiff was damaged by reason of the defendants’ violation of the contract in regard to taking and paying for the fashion sheets, in the sum of $102.75, but that no damage could be recovered for the failure to take patterns, be- ■ cause the contract in that regard was void for uncertainty. Judgment was accordingly entered in plaintiff’s favor and for its costs and disbursements in the action. Both parties appealed.</p>

<p> Partition: Possession, when adverse: Abatement of action: Practice: Equity. </p> <p>In an action ior partition the only controversy was as to the existence of an executory contract whereby the plaintiffs, through their agent, agreed to convey the lands in question to the defendants, under which contract defendants claimed to have gone into possession. Held, that the possession and claim of title by defendants were not hostile and adverse, but in subordination to plaintiffs’ title, and such as could only be enforced in equity; and that the issues as to title, being equitable in their nature, might properly ¡be disposed of in the partition action.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. Burnell, Circuit Judge.</p> <p>In 1892 one Ira S. B. Cole was fraudulently induced by the two defendants, Betsey G. Moody, his daughter, and Gassius M. Moody, her husband, in conspiracy with R. W. Roberts, to sell his farm, of the value of $4,800, for $3,000 received by him, and $1,200 received by Roberts. From the $3,000 he paid $2,000 to his daughter, the defendant Betsey, and $500 to the defendant Gassius M., in consideration of their agreement to support him. After the death of Ira S. B. Cole, suit in equity was brought by three of his heirs at law, seeking to rescind such sale and recover back the property. In that case (reported in 96 Wis. 559) the court found the fraud and conspiracy, but held that the purchaser, G-etzinger, was an innocent party, and therefore ordered judgment for damages in favor of the three plaintiff heirs of Ira S. B. Cole, to wit, Ira B. Cole, Sabra J. Keyset, and Charlotte Lossee, for each one fifth of the value of the land, to wit, the sum of about $2,800 damages and $700 costs. Thereafter the judgment plaintiffs collected from R. W. Roberts $1,200, and released the judgment as to him,— reserving, except for said $1,200, all their rights thereon against all the other defendants,' — ■ and shortly afterwards assigned the judgment to the plaintiff, A. G. Roberts, a brother of said R. W., and under circumstances tending to indicate that such transfer was in fact for the benefit of R. W. Roberts. Meanwhile defendants had invested their $2,500 in the purchase of a homestead, for which they paid $4,000. The present action is brought by A. O. Roberts, as assignee of said judgment, to charge said homestead with a trust in his favor to an amount sufficient to satisfy the balance of his judgment, to wit, about $2,300. It appeared that the defendants were insolvent, except for said homestead", but that R. W. Roberts is a man of considerable means. The judgment grants the prayer of the complaint, declares the title of the defendants to their homestead to be held in trust to the extent of the $2,300 aforesaid, and charges the same upon it as a lien. Defendants appeal.</p> <p>They contended, inter alia, that where a party has one or more remedies for the same wrong, electing one and pursuing it to judgment is a bar to any other remedy. 2 Herman, Estoppel, §§ 1022, 1039, 1040, 1051; Barker v. Barker, 14 Wis. 142; Warren v. Landry, 74 Wis. 151; Cook v. First Fat. Bank, 83 Wis. 31; Hildebrand v. Tarbell, 97 Wis. 446; Carroll v. Fethers, 102 Wis. 436; Smith v. Milwaukee, 18 Wis. 69; Kaehler v. Dob-berpulil, 60 Wis. 261; Terry v. Hunger, 121 N. Y. 161; Fowler v. Bowery 8. Bank, 113 N. Y. 450; Conrow v. Little, 115 N. Y. 387; Crossman v. Universal Rubber Co. 127 N. Y. 34; Morris v. Rexford, 18 N. Y. 552; Sanger v. Wood, 3 Johns. Ch. 416; Terry v. Buek, 40 App. Div. 419; Dennett v. Cod-man, 168 Mass. 428;' Bedier v. Fuller, 106 Mich. 347; Shoe v. Ziegler, 159 Pa. St. 461; Oranson v. Smith, 47 Mich. 647; Finn v. Peek, 47 Mich. 208; Neild v. Burton, 49 Mich. 58; Farewell v. Myers, 64 Mich. 234; Fguitable L. A. Soe. v. May, 82 G-a. 646; Murray v. Lylburn, 2 Johns. Oh. 441; Rielil v~ Evansville F. Asso. 104 Ind. 70; 1 Beach, Trusts, §§ 158, 231; Oliver v. Piatt, 3 How. 332.</p> <p>They contended, inter alia, that the money in the hands of the defendants was impressed with a trust so long as it could be traced as a distinct fund, and might be followed into the property purchased by defendants, and such property be charged with such trust to the extent of the trust moneys used in its purchase. 2 Pomeroy-, Eq. Jur. §§ 1047, 1053, 1058; Perry, Trusts, §§ 128, 166, 835-837, 842; Beach, Mod. Jur. Eq. § 229; 10 Am. & Eng. Ency. of Law, 36, 39, 47; Third Nat. Bcmk v. Stillwater G. Co. 36 Minn. 75; Newton, v. Porter, 69 N. Y. 133; Bank of Commerce v. Fowler, 9S Wis. 241; Walker v. Daly, 80 Wis. 222; Farmers’ <& Traders’ Bamk v. Kimball M. Co. 1 S. Dak. 388; Ferguson v. HiTlmam, 55 Wis. 181; Pierce v. LLolzer, 65 Mich. 263; Watson v. Thompson, 12 R. 1.466; Cecil Ba/nk v. Snively, 28 Md. 253; U. S. v. State Bank, 96 U. S. 30; Wat. Mahaiwe Bank v. Barry, 125 Mass. 20; Blenkinsopp v. Blenkinsopp, 12 Beavan, 568, 586; Lee v. Stone, 5 Grill & J. 1; Baker v. Ba/r-tol, 6 Oal. 483; Beach v. Bestor, 45 Ill. 341. There had been no election of one of several inconsistent remedies, and the respondent was not seeking another or an inconsistent remedy. Baker v. Baker, 57 Wis. 382; Standard Oil Co. v. Hawkins, 74 Fed. Rep. 395, 20 O. 0. A. 468; Terry v. Hunger, 121 N. Y. 161; Crossmem v. Universal Rubber Co. 127 N. Y. 34; Mcleod v. Eva/ns, 66 Wis. 401; Er/mcis v. Eva/ns, 69 Wis. 115; Ferguson v. Hillmam, 55 Wis. 181.</p>

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

<p>EeeoR to review a judgment and order of the circuit court for Manitowoc county: Michael EjrwaN, Circuit Judge.</p> <p>The plaintiff in error sued out a writ of habeas corpus in the circuit court for Sheboygan county for the purpose of obtaining the custody of two of his daughters, who were at the time of the issuing of the writ of the ages of nine and .seven years, respectively. The defendants in error had pos■session of the children, the defendant Louisa being their maternal aunt; and they justified their possession principally ■upon the ground that the plaintiff in error was an unsuitable person to have the charge and bringing up of the children. It appeared by the evidence that the wife of the plaintiff in ■error, the mother of said children, had died of consumption October 16, 1898; that before her death she had requested that the said children should go to her parents or sisters, for •a home, and that the plaintiff in error had assented thereto; ■that after the funeral of the mother, on the 19th of October, 1898, the children were taken by the Lorfelds against the ■objection of the plaintiff in error, and have remained with the Lorfelds ever since, who have taken care of them, and are financially able to do so. The circuit court found that the plaintiff in error was not a suitable person to have the ■care and custody of said children; that the defendants in ■error were suitable persons to have such care and custody; and that the best interests of the children required that they remain in the custody of the defendants in error. Thereupon the writ of habeas corpus was dismissed, and the children remanded to the care and custody of the defendants. This judgment was rendered in June, 1899, and on the 29th day of July, 1899, the plaintiff in error filed a petition praying for the vacation of the judgment, upon which petition testimony was taken, and the same was denied October 11,1899, whereupon the plaintiff in error sued out this writ.</p>

<p>Appeal from an. order of the circuit court for Sheboygan county: Michael KiewaN, Circuit Judge.</p> <p>Action to restrain an alleged nuisance on facts set forth in the complaint in substance as follows: Plaintiff owns lots ■5, 6, 7, and 8 of block 15, division 1, in the village of Grlen-beulah, Wisconsin, on which she has a dwelling house located about four feet from the west line, surrounded by made lawns and yards, making an attractive and valuable home. Defendant owns the adjoining lot on the west of plaintiff’s land, in connection with other lots, on which he has a dwelling house, located about fifty feet from the division line. July 22, 1899, defendant set rough tamarack posts, from eight to sixteen feet high, along said division line, Avholly on his own land, about four feet from the line of plaintiff’s dwelling house, and extending back from the .street front about ninety feet. lie strung wires from the tops of such posts to his house, in order to hold the posts firmly in position, and on and supported by such posts he constructed a tight board fence of rough, old, unsightly, and partly decayed lumber taken from an old ice house, such fence being from eight to sixteen feet high, the highest part being opposite the -windows in plaintiff’s house. Said structure is, by reason of its unsightly character and proximity to plaintiff’s house, a nuisance. It was wilfully and maliciously erected. It partially shuts off the view from plaintiff’s house to the street and from the street to the house, greatly injures the value of the property for rent or sale,, and if it be permitted to continue the use of such house as a. dwelling place will have to be abandoned.</p> <p>The defendant demurred to the complaint upon the ground that it fails to state facts sufficient to constitute a cause of action. The demurrer was overruled, and defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Eond du Lac county: Michael Kibwah, Circuit Judge.</p> <p>On July 1,1897, the plaintiff leased of the defendant Oarey the saloon or bar room of the Palmer House, in the city of Fond du Lac, for the term of one year, with the privilege to' extend the same for four years longer. The lease contained a stipulation that the plaintiff was to have the exclusive right to sell liquors and cigars in the “ Palmer House Block.” Plaintiff went into possession, and, at the expiration of his term, gave due notice of his election for an extension. On November 12,1898, Carey leased to the defendant Matohette the hotel building known as the “Palmer House,” except certain rooms that had theretofore been leased to others, for a period of five jmars. This lease contained a stipulation that the “ lessee is not to sell or permit to be sold any wine, beer, or liquors, or any kind of cigars, in said hotel, except as is hereafter agreed.” After the original lease was made with plaintiff, and in the years 1897 and 1898, Caray made changes in the inner construction of the hotel, and brought the office and reception room for guests down to the ground floor in the room adjoining the room leased to plaintiff; constructing a passageway between said rooms, placing only a partial screen, by swinging door, with a large glass panel, with the word “Bar” painted thereon, across the same, opening in and out on a swing hinge. This, it is claimed, was done pursuant to an agreement made at the time said first lease was made. After setting out the facts stated, the complaint alleges that the defendants became jealous of his rights and privileges under his lease, and attempted to avoid the covenants in said lease, and conspired to take away the profits derived from the exclusive right to sell cigars and liquors in said building, and to that end built a lean-to on the east end of the hotel building, using the east wall of the hotel building as one side of the new building, fitted it up for saloon purposes, opened a door from the Palmer House billiard room into said building, and commenced selling liquors and cigars therein. Ón May 11, 1899, in the nighttime, the defendants closed up and barricaded the door leading from the hotel office to plaintiff’s saloon, and cut off his connection therewith. The plaintiff brings this action to require the defendants to remove said barricade, and to restrain them from selling liquors and cigars in the so-called ■“ Palmer House Annex.”</p> <p>The defendants answered, setting up the lease to Mateh-•ette, admitting the closing up of the door, the building of the “ Annex,” and the sale of liquors and cigars therein, but claimed that the so-called “ Annex ” was not a part of the Palmer House Block, and was not covered by the stipulation in plaintiff’s lease. The defendant Taylor answered, denying any interest, and alleging that he was merely an employee and agent of the defendant Matchette. Upon certain affidavits, showing that the name “Palmer House Block” was confined to the building itself, and did not cover any of the adjacent land owned by Gcvrey, and upon the answers •of the defendants, a motion was made to dissolve the temporary injunction obtained by plaintiff, restraining them from selling liquors or cigars in the “ Annex.” A counter motion was made by plaintiff for judgment upon the pleadings. The latter motion was granted, and from the judgment so entered the defendants have appealed.</p>

<p> Railroads: Eminent domain: Recovery for land taken without condemnation: Estoppel: Petition: Description of the premises: Jurisdiction: Necessity of the taking. </p> <p>1. A railroad company constructed its roadbed so that a portion of the embankment extended onto the premises of plaintiff’s intestate, and maintained the same for five years without objection. Meanwhile the intestate sold the premises, and accepted the price they brought in that condition, reserving his claim against the company. Held, that his right to obtain compensation for the injury to his premises under sec. 1852, Stats. 1898, had become irrevocable, and was not defeated by the act of the railroad company in removing ■ all parts of its embankment from the limits of said premises.</p> <p>2. In a proceeding by a landowner to recover compensation for land over which a railroad had constructed its road without having acquired title, the allegations of the petition are to be liberally construed, so far as is consistent with reasonably certainty of information. So construed, a petition, alleging the construction of defendant’s track over an ascertainable parcel of land belonging to plaintiff, to which was annexed a plat specifying courses and distances with reference to duly defined and recorded lot lines, is sufficient to confer jurisdiction upon the court to ascertain and adjudge what land, within the limits of that described, had in fact been occupied by defendant’s construction.</p> <p>3. Although sec. 1853, Stats. 1898, requires proceedings thereunder to comply generally with the provisions relating to condemnation of land by railroad c.orpoi’ations, a landowner, seeking under that section to recover compensation for land already taken, need not allege or prove the necessity of the taking, required by sec. 1846 in condemnation proceedings initiated by a railroad company.</p>

<p>■Garnishment: Filing of pleadings: Trustees: Liability as garnishees: Contingent interest: “In custodia legis.”</p> <p>1. Plaintiff moved to strike out the answers of garnishees, upon which he had elected to take issue, for the reason that they had not been properly filed as required by sec. 2664, Stats. 1898 (prescribing that pleadings shall be filed before the commencement of the first term of court, after their service, in which the action is noticed for trial). On the hearing of such motion it appeared that the answers had been filed on the first day of the first term after the action had been duly noticed for trial. Held that, in the. absence of anything in the record to indicate that such answers were not filed before the opening of court on that day, and in view of the court’s order on such motion that they be permitted to stand and a finding that the action duly came on to be heard, there was no error in refusing the motion.</p> <p>:2. By the terms of a will G. was given a sum of money, but in case ten years should elapse without advices as to his existence the sum was to be divided between R. and A., who were appointed trustees of the fund by the proper county court, required to account therefor to such court, and gave bonds for the faithful performance of the trust. No advices having been received from G. for about six years, plaintiffs brought suit against G. and garnished R. and A. Held, that G. had no vested interest in or absolute right to the fund at the time of the service of the garnishee process, and that, under sec. 2768, Stats. 1898 (providing that a garnishee shall not bo liable as such for property in his possession, unless the right of the principal defendant thereto was absolute at the time of the service of the garnishee process), the garnishees were not liable.</p> <p>:8. Under a will, a sum of money was given to G., but .to go to R. and A. in case no advices of G.’s existence should be received within ten years, and R. and A. were duly appointed trustees thereof by the proper county court, and gave bonds to such court for the faithful execution of the trust as directed by the court. Held, that such fund is in the custody of the law and under the control •of the court, and cannot be reach ed by garnishment of such trustees.</p>

<p> Pleading: Amendment on trial: Statute of limitations: Abuse of discretion: 'Evidence: Cross-examination: Trials: Insinuations by counsel against character of witness: Instructions to jury: Motive in bringing action. </p> <p>1. Under seo. 2830, Stats. 1898 (granting power to courts to allow amendments to pleadings, upon the trial, in furtherance of justice and upon such terms as may be just), it is an abuse of discretion to allow the statute of limitations to be set up, by an amendment upon the trial, without any showing to excuse the delay, and without the imposition of any terms or conditions. Such a ruling is not “in furtherance of justice,”</p> <p>'2. Where, in an action for amounts due for rent and for a suit of clothes, the plaintiff was examined simply as to the sale of the clothes, upon cross-examination it is error to allow, against objection, questions as to the receiving of checks by the plaintiff from the defendant at dates before the alleged sale.</p> <p>3. An affirmative defense of payment cannot be proven by cross-examination of a party when he has given no testimony as to the claim which is alleged to have been paid. Language used in Weadock v. Kennedy, 80 Wis. 449, to the effect that a party may always be cross-examined on the whole case whenever he has testified as to any fact in the case, criticised, and held not to imply intention to depart from the rule that the cross-examination of a witness should be confined to matters brought out on the direct examination.</p> <p>-4. While it is competent to show by cross-examination of one party that there was ill feeling between himself and the other, or that trouble had occurred between them, and the general chai’acter of the trouble, it is not competent for counsel to inject into the case, by statement and insinuation, charges of lying, theft, and perjury against the party undergoing cross-examination; and in case he does so the trial court distinctly fails in its duty unless it calls him to order at the outset and stops- the objectionable remarks: the mere sustaining of objections, without fitting rebuke, is no adequate remedy for the evil.</p> <p>•5. In an action on contract, where plaintiff’s claim was old and subject to the-criticism that it was stale, but there was enough testimony in its support to entitle it to be fairly submitted to the jury, an instruction that, if the action was merely an attempt to defraud, hinder, and oppress the defendant, the jury should find for the defendant, is held not justified by the evidence and distinctly misleading.</p> <p>6. Such an instruction, if proper in any case, should not be given -without a sufficient qualification to inform the jury that, if the plaintiff has proven his cause of action, he should recover notwithstanding-his motive in bringing the action was to oppress the defendant.</p>

<p>Eepoeted from the superior court of Douglas county: 'ChaRles Smith, Judge.</p> <p>Questions of law reported for solution pursuant to sec. 4121, Stats. 1898. The defendant was arrested on a wrarrant issued by the county judge of Douglas county, Wisconsin, charged with a misdemeanor. A preliminary examination was held, resulting in the .accused being held for trial before the superior court of such county. Thereafter an information was duly filed, following the charge contained in the complaint, upon which the defendant ivas arraigned before the superior court, and to -which he then entered a. plea in abatement upon the ground that the county judge had no jurisdiction to issue the warrant for his arrest or to' take any proceedings pursuant thereto; and that the only court having jurisdiction in such cases in Douglas county is the municipal court thereof. The plea was overruled, whereupon the defendant entered a plea of guilty, and by his counsel requested the submission of the following questions to this court for decision: (1) Is exclusive jurisdiction tO' hear, try, and determine cases of misdemeanor arising in Douglas county, Wisconsin, vested in the municipal court thereof? (2) Has the county judge of Douglas'county jurisdiction to issue warrants and hold preliminary examinations in cases of persons charged with misdemeanors, and power to hold such persons to trial in the superior court of Douglas county? (3) Has the superior court jurisdiction to render judgment against the defendant in this case?</p>

<p> Master and servant: Personal injuries: Evidence: Negligence: Proximate cause: Instructions to jury: Assumption of risle: “Precise danger:" Verdict: Contributory negligence: Excessive damages. </p> <p>1. In an action to recover for personal injuries sustained by a sixteen-year-old boy while in the defendant’s employ, it appeared, among other things, that at defendant’s plant a side track, separating two of its buildings, was crossed by a steam pipe which connected such buildings; that such steam pipe was three feet and ten inches above the top of an ordinary freight car, and two feet and nine inches above the top of the car in question, and that plaintiff, who was assisting defendant’s engineer to switch a car to a point , beyond the steam pipe, had climbed to the top of the car to set the brakes, when he was struck in the back by the steam pipe, knocked from the top of the car, and injured. Held, that it was not error to admit, against objection, evidence tending to prove that the steam pipe in question might, at small cost and without injury to-its efficiency, have been raised so as not to interfere with employees riding on top of freight cars.</p> <p>2. Where the evidence in such case was sufficient to support a finding of the jury to the effect that, by placing the steam pipe so near the top of such cars, the defendant made it unnecessarily hazardous for its employees riding on the tops of such cars, it was not error to submit to the jury, in the general charge, the questions-whether the defendant was in the exercise of ordinary care in locating its steam pipe where it did, and, if negligent in that regard, whether such negligence was the proximate cause of the injury.</p> <p>3. Plaintiff had worked as an errand boy for defendant about six months before the injury complained of, and had helped defendant’s engineer do the braking on cars switched to its buildings, but had never worked around machinery of any kind. The car ¡upon which plaintiff was riding was being pushed rapidly up a .grade and he had climbed on top to set the brakes when it reached a. platform 120 feet beyond the pipe where the grade was still ascending. He had passed under said pipe, on box cars, eight or ten times before, on other tracks, which had no up grade, but never on the top of the cars, and had passed under the pipe on the ■track in question only two or three times, and then when going to points beyond the platform, where there was no up grade. His back was towards the pipe, and he did not think of it, though he knew it was there. He did not know how high above the ground or the cars the pipe was, or that the car on which he was riding was higher than an ordinary caiy and had never been cautioned about the pipe, or the care to be used in going under it. Held, that the questions whether the plaintiff appreciated, or ought to have appreciated, the precise danger of riding upon the top of the car * while passing under the pipe, and whether the plaintiff was guilty of contributory negligence, were for the jury.</p> <p>4. In such case it was not error to charge the jury, that “youshould not only consider that he knew the pipe was there, and that if he collided with it he would be injured, but you should inquire whether he appreciated, or ought to have appreciated, the precise danger' — the relation of the pipeto the track, to the box car, and its distance from the box car, and the danger of passing under on such a car,” — the effect of the words “ precise danger ” being to call the attention of the jury to the particular danger of the plaintiff being knocked off the car by the pipe, as distinguished from dangers generally by reason of working in defendant’s yards.</p> <p>5. Nor was it error to instruct, in subs.tance, that if the jury should find that the nearness of the pipe to the car was a danger to which plaintiff was exposed in the performance of his duty, and was a danger which was known and comprehended by him, or was so open or obvious that, considering his age, intelligence, experience, judgment, and discretion, he ought, in the exercise of ¡reasonable care, to have known it, then he assumed the risk.</p> <p>6. In such a case there was evidence showing that plaintiff had received general instructions about switching and coupling cars, .and defendant’s engineer testified that he had warned him to keep off from the tops of cars while in motion, which testimony was flatly contradicted by plaintiff. Held, that a finding that plaintiff had not been warned to keep off the tops of cars while</p> <p>• passing under the pipe in question was supported by the evidence. 7. Plaintiff, a boy sixteen years of age, was injured so that amputation of one arm was necessary, and the other dislocated at the wrist and elbow and so broken and injured that its use was permanently impaired. He suffered much pain,-though able to be about in four or five weeks after the injury. He received an injury to the head and had difficulty in passing urine, which might be due to some local cause or an injury to the spine or brain. Prior to the injury he was healthy and was receiving §1 per day. Held, that a verdict for $20,000 ’damages was largely in excess of what was warranted by the law and the evidence, and that a new trial should be granted unless plaintiff remitted all damages in excess of $12,000.</p> <p>■8. MARSHALL and Bardeen, JJ., dissenting, are of the opinion that the evidence showed that the danger which menaced the plaintiff was so open and obvious, and so well known to him, that it should be said, as a matter of law, that he assumed the risk of accident.</p>

<p> Appeal: Bill of exceptions: Printed case: Questions reviewed. </p> <p>1. Where there is no bill of exceptions returned with the record, errors assigned, based upon rulings made on the trial, cannot be reviewed, although the printed case contains what purports to be a copy of a regularly settled bill of exceptions.</p> <p>% Where no bill of exceptions is returned with the record, the only question open is whether the pleadings and verdict sustain the judgment.</p>

<p> Waters: Diversion: Natural watercourse: Contempt: Violation of injuno tion: Findings: Appealable order. </p> <p>1. Under sec. 3489, Stats. 1898, applicable to contempt proceedings to enforce the civil remedy of the plaintiff and protect his rights in the action (providing that if “the court shall adjudge the defendant to have been guilty of the misconduct alleged, and that the-misconduct was calculated to, or actually did, defeat, impede or prejudice the rights or remedies of any party in a proceeding pending in such court, it shall proceed to impose a fine,” etc.), the court found the defendants “ guilty of a 'technical violation ” of an in-junctional order, but failed to find that “ the misconduct was calculated to, or actually did, defeat, impede or prejudice the rights and remedies ” of the plaintiff. Held that, in the absence of the findings required by statute, an order requiring defendant to pay a fine and the costs of the proceedings was without authority.</p> <p>S. Such order, being one that affects the substantial rights of the defendants, and being made in a special proceeding, is appealable.</p> <p>3. Where a natural watercourse has run across a highway to and across plaintiff’s land from time out of mind, the plaintiff’s right to the natural flow of the water in the stream, as a natural incident to the right to the soil itself, is the same as he has to other natural advantages belonging to the land of which he is the owner, and injury and damage'from a threatened diversion are presumed and need not be proved.</p>

<p>Appeal from a judgment of the circuit court for Monroe county: O. B. Wyman, Circuit Judge.</p> <p>This is an action upon a policy of insurance upon a horse for the sum of $800. The case was here upon an appeal .from a former judgment, and was reversed for error, 94 Wis. 117. The evidence shows that the horse was chattel ■mortgaged by the plaintiff Johnston to the plaintiff Smith, and the policy was made payable to the plaintiff Smith as .'his interest as mortgagee might appear. There was a written ■application for the policy, signed by Johnston, in which it was stated that the horse was mortgaged to Smith for $500, and the application provided that the statements contained ■therein were warranted to be true. The policy also provided that it was made and accepted upon the understanding and agreement that all the statements made in the application were true, and were warranted to be true. There was a further provision in the policy as follows: “ That said insured has agreed and is required to use due diligence, precaution, and care in the use, and for the safety, health, and preservation, of said live stock, and in case of sickness or accident agrees to promptly summon to his aid the best veterinary surgeon to be had in the vicinity, or, if none can be had, to otherwise provide the best available care and attention; and he shall at once notify this company, by telegram, of the fact of such sickness or accident; otherwise, •this policy shall be void.” The horse died of disease on November 5, 1S93, and due proofs of loss were made on or about November 13th following. The defenses brought by the company were, first, that the horse was in fact mort..gaged for $800 instead of $500, and that the company was never notified by telegram of the sickness of the horse, as ■provided in the policy.</p> <p>The court submitted certain special questions to the jury in addition to the general verdict, which questions, and the •answers thereto, were as follows: “ (1) What was the amount •of the incumbrance by mortgage on the horse Honfleur at the date of the making of the application for the policy in suit? A. $525. (2) Did the plaintiff Johnston, at the time the application was made, state to the agent of the company that there was a mortgage of five hundred dollars ($500) on the horse? A. No. (3) Did the plaintiff' Johnston, at the time the application for the policy was. made, state to the agent of the company that there was a mortgage of about five hundred dollars ? A. Tes. (4) Was, the statement as to the incumbrance or mortgage upon the horse made by the plaintiff Johnston to the agent of the company at the time of the application for insurance a warranty or representation merely ? A. Representation. (5) Did the plaintiff Johnston promptly summon to his aid the best veterinary to be had in the vicinity to care for the horse ? A. Tes. (6) In case you answer the foregoing question in the negative, then, before the veterinary Snow arrived at Ontario to treat the horse, did Johnston otherwise provide the best available care and attention for the sick horse ? A. Tes. (Y) Did the plaintiffs or either of them at once notify the defendant company by telegram of the fact that the horse was sick? By. the Oourt: No. (8) Could the plaintiff Johnston, by the exercise of ordinary care and reasonable diligence, under the circumstances of the case, have sent a telegram to the defendant after' he knew the horse was sick, and before the animal died? A. No. (9) In case the plaintiffs are entitled to recover under the law, at what sum do you assess their damage? A. $9,81.35. (10) Eor which party do you find,— for the plaintiffs or for the defendant ? A. For the plaintiffs.”</p> <p>Upon this verdict judgment for the plaintiffs was rendered, and the defendant appealed.</p>

<p>.Mandamus: Disputed highways: Obstructions: Removal by supervisors.</p> <p>1. Where for more than thirty years controversy had existed as to the existence of a highway, and it had been customarily obstructed for upwards of twenty years, and the owner of the soil had in g-ood , faith insisted that the alleged highway had no legal existence, because the necessary proceedings to open it had not been taken, and such claim had been submitted to by the town officers for more than twenty years, and they had refused to remove obstructions thereto because of doubt as to whether the possession of the occupants could be successfully contested, mandamus will not lie to ■compel the town board to remove such alleged obstructions.</p> <p>S. Sec. 1223, Stats. 1898, imposing upon town supervisors the duty of causing the highways in their towns to be kept free from obstructions to their use for public travel, requires summary action in reference to recognized highways only, and does not require them to decide bona, fide disputes as to their existence.</p> <p>3. Where the existence of a highway is fairly in controversy, that controversy must be determined by the courts and so determined as to bind the parties affected, before the supervisors are in duty bound to proceed summarily to remove obstructions under sec. 1223, Stats. 1898.</p>

<p>Appeal- from an order of the circuit court for Monroe county: O. B. Wyman, Circuit Judge.</p> <p>Mandamus. The relation sets out the facts which it is claimed entitle the relator to a license to practice dentistry in this state, and a wrongful refusal on the part of the defendants, who constitute the state board of dental examiners, to issue such license. An alternative writ was issued, to which the defendants made return,-in which they set out at length their grounds for not obeying the writ. The twelfth subdivision sets out the adoption of certain resolutions by the board concerning the qualifications to be required of applicants for license, and establishing a standard for dental colleges whose diplomas should be recognized by the board. The thirteenth subdivision, among other things, sets out that the board, at a regular meeting, discussed the standing •and reputation of the college from which the plaintiff claims to have a diploma, and decided that, in their judgment, said ■college was- not a reputable one, whose graduates would be ■entitled to license without examination. This is followed by some evidentiary matters as to further inquiries regarding the standing of this college, and what was done in that regard, and an allegation that relator was notified of their •conclusions. The relator demurred to the whole of the twelfth subdivision, and to that portion of the thirteenth which set out the inquiries made as above stated. After a hearing of the demurrer, the court entered an order as follows: “It is ordered that the demurrer be, and the same is hereby, sustained. Further ordered that the defendants pay plaintiff $10 costs of said demurrer.” Defendants duly excepted thereto, and have taken this appeal.</p>

<p> Z/íbél and slander: Adulteration of butter: Violation of criminal statute: Moral turpitude: Pleading: Responsibility for libel. </p> <p>1. An article in a newspaper charging plaintiff with selling without any license, a compound in imitation of pure yellow butter, which contained an admixture of foreign fat, is not libelous: neither secs. 4607c, 4607d, Stats. 1898, nor anjj other statute of Wisconsin, makes sale of imitation butter or of oleomargarine criminal or prohibited because sold without license from the state, nor cjin it be said that, independently of any such law, absence of license renders disgraceful or discreditable sales otherwise innocent.</p> <p>%. An article in defendant’s newspaper which charged that plaintiff had sold adulterated butter as of pure creamery make, that the commodity was forty per cent, butter and the balance grease, and that purchasers had been misled, is libelous. It charges deceitful dealing in adulterated or imitation butter, absolutely prohibited by sec. 4607c, Stats. 1898, which makes such acts a crime, and the acts so charged also involve moral turpitude in their perpetrator, both as an individual and as a dealer in commodities owing a duty of honesty and good faith to his customers.</p> <p>3. Under sec. 2677, Stats. 1898 (providing that in case of libel it shall not be necessary to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose, but it shall be sufficient to state generally that the same was published concerning the plaintiff), an allegation that defendant published an article in its newspaper, charging the D. P. Co. (meaning plaintiff) with having sold adulterated butter as puré creamery make, is. sufficient, on demurrer, to show that the acts charged referred to-plaintiff.</p> <p>4. In an action for libel, a positive allegation that the defendant falsely and maliciously caused to be printed and published in a certain newspaper a certain libelous article concerning the plaintiff, is sufficient, on demurrer, to charge defendant with such control .over matter inserted in the newspaper as to make it liable therefor.</p>

B. WymaN, Circuit Judge. This is a proceeding brought under secs. 1330-1336 of the Statutes of 1898 by the trustees of the village of Galesville to compel the removal of an alleged encroachment upon the west side of Benton street, in said village, consisting of a wire fence built by the defendant, and intended by him to make the east line of lots 7 and 10 of block 19 of dale’s first •addition to the village of Galesville.

<p>Appeal: New trial: Res adjudicata: Guaranty: Conditional delivery: Waiver: Instructions to jury: Perverse verdict: Refusal to set aside: Abuse of discretion.</p> <p>1. Where, in an action on a letter of guaranty delivered on condition that another signer should be obtained, the supreme court decided that, when knowledge came to the plaintiff that the letter had been wrongfully delivered, it had no right to ignore the fact; that proceeding thereunder was at its peril; that unless the guarantor was guilty of some act that would amount to an estoppel, it was without remedy; and that the fact that its agent notified the guarantor that it would extend credit to H., whose obligations were thereby guaranteed, did not call for any protestation from him that he would not be bound thereby, — it was error for the trial court on a second trial, on substantially the same evidence, to instruct the jury that, if the defendant signed the letter and was thereafter notified of its acceptance by plaintiff, it thereupon became a binding contract of guaranty according to its terms; and that if defendant intended to insist upon the condition upon which he signed the letter, it was his duty to notify the plaintiff that he would not be responsible unless another signature was obtained.</p> <p>2. Defendant having signed a letter of guaranty on condition that it should not be delivered until another surety was obtained, the principal delivered it in violation of such condition, and the guarantor, when notified by the guarantee’s agent that credit would be extended on it, told such agent of the wrongful delivery. Thereafter the agent Was permitted to take the letter away without protest. The guarantor called attention to the provision enabling him to withdraw therefrom if dissatisfied. He told such agent he thought it would not be necessary for him to do so as he had faith in his principal’s business ability. Such agent thereafter frequently called on the guarantor, and they talked about how the principal was getting along in his business. Held, that there was no waiver of the guarantor’s right to insist upon the effect of his notification of the conditional delivery.</p> <p>3. The rule that, where a'mistake is made in giving instructions to the-jury, thereafter so fully corrected as to leave no reasonable ground to say that they have been misled, or where an instruction upon a material point is susceptible of two constructions, one a correct statement of the law and the other not, but taking the charge as a whole there is no reasonable ground to say that the jury may have adopted and applied the latter, the error cannot be taken advantage of to reverse the judgment, does not relate to cases where the whole or some essential part of the controversy was covered by erroneous instructions requested by one party and then again covered by correct instructions requested by the opposite party; or to cases where conflicting instructions are given on material points, leading to uncertainty as to what rules of law are applicable to the case.</p> <p>4. Where negotiations between the principal in a letter of guaranty and the guarantee, in regard to reducing the guarantor’s liability from §3,000 to §1,000, were abandoned before notification of acceptance was given the guarantor, who was not a party to the negotiations and had no knowledge of the communications in respect thereto; and where on that state of the record, in a suit on such letter of guaranty, it was decided on appeal that what occurred in regard to a change of the guaranty was immaterial, such decision is held to rule adversely to the guarantor an assignment of error to the refusal of the trial court, on the second trial, to receive in evidence letters that passed between the guarantee and the principal in regard to such change.</p> <p>5. Where the amount due plaintiff, if he is entitled to a verdict, is susceptible of being determined with mathematical accuracy, a verdict for plaintiff for a less amount shows that the cause was not fairly considered by the jury, and that the verdict was purposely and recklessly made regardless of the evidence.</p> <p>6. In such case, where it is clear that such prejudicial misconduct has-taken place, there is no room for the exercise of judicial discretion in disposing of a motion to vacate the verdict and grant a new trial. •</p>

B. Wymaet, Circuit Judge. An action to enjoin the defendants from opening a highway of necessity over lands of the plaintiff for access to the lands of one Louis A. Miller, upon whose application and upon notice hearing was had pursuant to sec. 1275, Stats. 1898, on the 13th day of October, 1899, as to the necessitjr ■of such road.

13. WymaN, Circuit Judge. The plaintiff is a loan and building association organized under the laws of this state. In April, 18S9, the defendant Carter applied to the plaintiff for a loan. He then subscribed for twelve shares of the eleventh series of stock, which commenced on the second Monday of February of that year.

Gr. SiebegkeR, Judge. Action to enjoin the defendant from cutting down an electric street railroad pole, which was erected in the usual Avay at the outer edge of the sidewalk on his property, on one-of the streets of the city of La Crosse, Wisconsin.

<p>Disqualification of county judge: “ Guardian of any ward”Guardian ad litem: Construction of statutes: Second appeal: Waiver: Embezzlement by trustee: Devastavit: Aationonbond, when not premature: Sureties.</p> <p>1. Under sec. 2447, S. & B. Ann. Stats, (providing that when the judge of any county court shall be interested as an executor or administrator or guardian of any ward, or interested as creditor or otherwise in any question to be decided, he shall be disqualified to act in relation to that estate, etc.), the use of the words “executor or administrator” in connection with the words “guardian of any ward” indicate that the person meant is some trustee charged with the duty of caring for the property or looking after some in- • terest pending at the time the county judge is called upon to act, and such disqualification to act continues only so long as the-county judge continues to be such executor, administrator, or-guardian.</p> <p>2. A guardian ad litem, being an attorney appointed to conduct ol-eare for a particular matter in court, and having the charge neither of the person, nor of the property of the person, he is appointed to represent, is not a “guardian of any ward ” within the meaning of said sec. 2447; and the fact that an attorney had been appointed guardian ad litem in an estate, his appointment being expressly limited to the particular proceeding then pending, does not disqualify him from acting in the same estate, when he became county judge three years thereafter.</p> <p>•8. Said sec. 2447 (fixing the limitations of the authority of the county judge while acting as a judge of probate), being legislation upon a particular subject, must be presumed to have covered all the limitations considered necessary upon that subject, and therefore a proper construction of sec. 2579 (providing that in case any judge of a county court having civil jurisdiction shall be interested in any proceeding in such court, or shall have acted as attorney or counsel for either of the parties thereto, he shall not have power to hear or determine such proceeding, or make any orders therein, except with consent of the parties thereto), confines the limitation therein prescribed to the county judge while acting in matters over which he has civil jurisdiction.</p> <p>4. Where on a second appeal the record shows that the evidence on a given point is precisely the same as on the first trial, failure on the first appeal to rely upon error in respect thereto is a waiver of the right to do so on the subsequent appeal.</p> <p>•5. In an action against the surety on the bond of a defaulting trustee, it appeared that the trustee was properly cited to account; that he filed an account showing under oath that he had embezzled the entire estate; that the amount he should pay over had been determined; that an order entered for the payment of such amount had been duly served on him; and that he had neglected to comply therewith. Held, sufficient to establish a devastavit and demand and refusal to pay, conclusive upon the sureties on his bond, and sufficient to authorize suit thereon.</p>

<p>Appeal from a judgment of the circuit court for Wood county: Chas. M. Webb, Circuit Judge.</p> <p>Action to require the defendant to satisfy a mortgage. The issues raised by the pleadings were decided by the trial court substantially as follows:</p> <p>On January 4, 1893, Casper Schafer and wife borrowed of defendant $550, agreeing to repay the same in five years, and to pay interest annually at the rate of seven per cent, per annum, and to secure such payment the debtors gave defendant their negotiable promissory note and a real-estate mortgage, which was duly recorded and is set forth in the complaint.</p> <p>It was provided in the mortgage that in case of the nonpayment of any sum of money when due, either principal,, interest, or taxes, the entire debt should, at the option of the mortgagee, his representatives or assigns, be deemed tO' have become due and immediatedly collectible in a suit at. law or by foreclosure of the mortgage.</p> <p>When the mortgage was executed defendant resided, and has ever since resided, in the state of New York. During a. period commencing prior to 1892 and extending to 1896, defendant furnished to one A. L. Smith, who resided in Appleton, Wisconsin, various sums of money to be loaned by the latter in his discretion, said money being the property of an estate of which defendant was trustee. It was agreed between defendant and Smith that the latter should repay to defendant all sums advanced to him to be loaned, with interest thereon at the rate of six per cent, per annum. Smith was authorized to handle the loaning business as if it were his own, defendant knowing that his agent must necessarily employ others to assist him.</p> <p>Smith’s residence and place of business was at Appleton, Wisconsin, about 100 miles from the property covered by the mortgage' mentioned in the complaint and from the-residence of the mortgagors.</p> <p>In 1892 the Marshfield Land Company, with B. W. Pulling as manager, was engaged in loaning money and obtaining loans for other persons, with its place of business at-Marshfield, Wood county, Wisconsin. Subsequent to 1892-Pulling succeeded to such business, and thereafter all loaning business done by defendant, and by Smith for him, in the counties tributary, in a business sense, to Marshfield, was carried on through Pulling.</p> <p>Smith and Pulling made a joint agreement in regard to-loaning defendant’s money, to the effect that both should receive a percentage therefrom, and that Pulling should make collection and remit to Smith; and if collection off interest at maturity could not be made in any case, Pulling should advance the same to Smith in order that he might •advance the same to defendant.</p> <p>The money received by Schafer and wife was paid them by Pulling, the note and mortgage was received by Pulling, ■the mortgage was recorded by him, and all the papers relating to the loan were then by him transmitted to Smith •at Appleton, and by Smith were transmitted to defendant.</p> <p>Prior to 1896, under the arrangements mentioned, money •controlled by defendant was loaned to the amount of some $60,000, the loans being several hundred in number. Payments of interest and principal upon loans were made to Pulling from time to time, such payments being generally duly remitted to Smith. Schafer at no time received any notice that Pulling was not authorized to receive payments of interest or principal on the money borrowed by him. On the contrary, Pulling was by letter directed by Smith, in January, 1894, to collect overdue interest of Schafer. Eight •dollars and fifty cents of the first instalment of interest due •on the Schafer loan was in fact paid to Pulling.</p> <p>In April, 1894, Pulling caused foreclosure proceedings to be commenced on the Schafer mortgage for nonpayment of the first instalment of interest on the mortgage debt, the •defendant being named as plaintiff in the action, and there•after, on May 17, 1894, Schafer sold the mortgaged premises to plaintiff, at which time the full amount of the mortgage debt, to wit, $595.35, was paid to Pulling. When such payment was made Pulling did not have in his possession ■the note and mortgage, but agreed to procure the same, with a satisfaction of the mortgage, and make delivery thereof to Schafer; but such ¡promise was not kept. Pulling gave to Schafer the receipt of his land company for the money received as aforesaid, which receipt was accepted by Schafer in the belief that Pulling was authorized by the ■owner of the note and mortgage to receive payment thereof.</p> <p>About the time the foreclosure proceedings aforesaid were commenced, Pulling caused other foreclosure proceedings to' be instituted in the name of defendant to enforce mortgages owned by him, and subsequent thereto continued to conduct business in that way, some of which foreclosure proceedings were settled, and some prosecuted to judgment and sale, the lands being bid in in the name of Daniel Beach, trustee. In all of the foreclosure proceedings aforesaid the complaints were verified by Pulling as agent for the defendant. Smith had knowledge of the business transactions of Pulling in relation to the foreclosure of mortgages, and authorized the same.</p> <p>Upon such facts the court concluded as matter of law that Smith had authority to employ Pulling and the Marshfield Land Company to assistJhim in making loans; that he exercised such authority; that Pulling was, at the time he received the money from Schafer, the agent of defendant by the authority of Smith, and that such payment was in effect payment to defendant and extinguished the mortgage in question, and that plaintiff was entitled to judgment accordingly. Judgment was duly entered in accordance with such conclusions, from which defendant appealed.</p>

<p> Taxation: Assessment of property omitted from previous years: Statutes: Construction: Board of review. </p> <p>1. Seo. 1059, Stats. 1898, as amended by oh. 50, Laws of 1899, provides that real or personal property omitted from assessment in any of the three next previous years by mistake or inadvertence, unless previously reassessed for the same year or years, shall be entered once additionally for each previous year of such omission, giving the year of omission, and affixing a just valuation to each entry for a former .year as the same should then have been assessed according- to the best judgment of the assessor, and taxes shall be apportioned and collected on the tax .roll for such entry. The statute-originally applied solely to real estate and was extended by the-amendment of 1899 to include personal property. Held, that the-legislature did not intend to limit the effect of the amendment of 1899 to such personal property as remained unchanged in ownership or location, but intended thereby to include any and all personal property which by inadvertent omission escaped assessment,, and that such intention is capable of enforcement as to any omitted property which, between the time of its omission and the time of reassessment, has passed out of existence, out of the ownership of the person assessed, or out of the assessment district.</p> <p>■3. The words “ entered once additionally ” in said sec. 1059, while used originally with reference to real estate, when applied by said amendment of 1899 to personal property, are held to apply to the purpose contemplated by the statute, rather than to the clerical method by which it is to be accomplished, and to be one of the steps leading to the ultimate result,— that the taxes shall be apportioned and collected on the tax roll for such entry.</p> <p>S. The general provision of sec. 1055, Stats. 1898, requiring property to be assessed from actual view, does not apply to an assessment of personal property omitted from a previous assessment, under sec. 1059 as amended, since the latter section provides that assessments made thereunder shall be according to the assessor’s best judgment.</p> <p>4. Said sec. 1059, Stats. 1898, with its amendment including personal property, was intended to take immediate effect according to its terms, and regulated the conduct of assessors thereafter, without regard to whether the omissions to assess occurred before or after the enactment of the amendment. Being purely a remedial statute, it was within the power of the legislature to give it such effect.</p> <p>5. Where in proceedings before a board of review, on objection to the 'assessment of plaintiff’s personal property, no contention was made or evidence offered that the assessor’s designation of it on the roll was not in accord with the facts, the board cannot ignore the assessor’s report, and they commit no error in refraining from changing the assessment roll in that respect.</p> <p>6. MARSHALL and Bardeen, JJ., dissenting, consider that the words of sec. 1059, Stats. 1898, as amended by ch. 50, Laws of 1899, in themselves, or as applied to the subject to which they refer, are not ambiguous; that taken in their literal sense they do not admit of any other meaning than that, when property is assessed in any year, it shall also be assessed once additionally for each of the three preceding years that it was by mistake or inadvertence omitted from the assessment roll; and that the use of the word “additional” in the law is an insurmountable barrier to reaching a conclusion that it was the legislative purpose to remedy mistakes in the omission of property from the assessment roll, if discovered within three years from the commission of the mistake, regardless of a change in the ownership of the property in the meantime, or the consumption or destruction of the property itself.</p>

<p> Municipal corporations: Personal injuries: Evidence: Cross-examination: Defect in sidewalk: Notice: Knowledge of existence: Degree of care: Instructions to jury: Ordinary care: Proximate cause: Excessive damages. </p> <p>1. In an action for personal injuries alleged to be permanent, sustained by reason of a defective sidewalk, where the plaintiff's physician testified the injury might be serious, it is error to sustain an objection to a question put him on cross-examination, as to whether he regarded the injury as permanent.</p> <p>2. Under ch. 85, Laws of 1893 (providing that the notice to the municipality of injury happening on a highway that is out of repair shall not he deemed insufficient solely by reason of any inaccuracy or failure in describing the place and the insufficiency or want of repair), in the absence of any showing that the defendant was misled in fact, or of an intention to mislead on the part of plaintiff, a notice is sufficiently particular that describes the defect as consisting of missing boards or planks from the sidewalk or footway on the easterly side of C. street, in front of premises No. 203, owned by C., even though such premises were sixty feet in width.</p> <p>3. 'Where plaintiff in such case admitted she knew of the defect in the sidewalk into which she claims she fell, an instruction that a person passing over a sidewalk known to be in a defective and . dangerous condition must use greater care and caution than if she were ignorant thereof, should have been given upon request or its substance incorporated in the general charge.</p> <p>4. An instruction in the same connection that a traveler may indulge in a presumption that the street on which he travels is not defective, while it may be correct in the abstract, is misleading, because not applicable to one who knows of the existence of the defect in question.</p> <p>•5. In an action for personal injuries sustained by a child thirteen years of age, an instruction that ordinary care means such care “as the great mass of ordinarily prudent children of her age and capacity exercise under like circumstances,” is erroneous, because it sub- ■ divides the class of ordinarily prudent children, and makes the action of one division of the class the test of ordinary care.</p> <p>6. An instruction, in substance, that the injury must be shown to be the direct and natural result of the defect, is also erroneous; the instruction should be to the effect that the injury must be the natural and probable result of the defect. In such an instruction the word “direct” has no proper place.</p> <p>7. Where an injury to a child.thirteen years of age was a simple fracture of the fibula, which reunited in the ordinary course and under ordinary surgical treatment, and, in the opinion of a majority of the medical experts, there had been a complete recovery; and it appeared that the plaintiff walked with no limp ordinarily perceptible, and only complained of some pain in rainy weather, a verdict of £>2,500, reduced by the trial court to §1,700, is excessive, even as reduced.</p>

<p>Appeal from an order of the circuit court for Columbia county: E. G. Siebeokee, Circuit Judge.</p> <p>Action in the name of the attorney general to forfeit a waterworks franchise, so called, granted by the city of Portage, Wisconsin, to individuals, and Subsequently assigned by them to the defendant. The complaint states, in substance,, that the defendant is a foreign corporation; that April 15, 1887, the common council of the city of Portage, a municipal corporation of this state, granted to Moffett, Hodgkins & Clarke, their heirs^and assigns, the right to maintain a system of waterworks in said city, said grant being made by ordinance, a copy of which was made a part -of the complaint; that such ordinance was duly accepted, and that, pursuant thereto, since 1897, the defendant has maintained the authorized system of waterworks, to furnish water for-public and private use in said city; that said ordinance,, among other things, required the maintenance of fire hydrants, and provided that such hydrants should be kept, night and day, unavoidable accident excepted, supplied with water for fire services, and protected from freezing, and that if the grantees of the franchise, their successors or assigns, should at any time fail to supply an adequate amount of water for fire and other public and private purposes as provided therein, for a period of two weeks continuously for-any cause other than fire, floods, acts of God or the public enemies, the contract made by the ordinance and the acceptance thereof should be null and void, and ail rights, privileges, and franchises granted by such ordinance should be forfeited and cease; that defendant failed to keep the fire hydrants supplied with water and failed to keep them protected from freezing, and further failed to supply water for fire and other public and private purposes, from the 1st day of February, 1898, to the 1st day of July, 1899, solely through its negligence and carelessness. Several other violations of material provisions of the ordinance referred to. were alleged. Judgment forfeiting and annulling the franchise was prayed for. Defendant demurred to the complaint upon the grounds, among others, of want of jurisdiction of the court over the subject of the action, and insufficiency of facts to' constitute a cause of action. The •demurrer was overruled, and defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Columbia county: R. G-. Sietjeokee, Circuit Judge.</p> <p>December 7, 1881, Wilhelm Pieper, defendants’ ancestor, executed a mortgage to one O. W. Whinfield to secure the payment "of two notes, one for $2,000, payable in instalments of $500 each, on the 1st of May, 1882, and annually thereafter; the other for $1,200, due May 1,1887,— each bearing seven per cent, interest. Pieper died April 8, 1884, and the property mortgaged came to the defendants. Whinfield died April 5, 1885, and the mortgage became the property of the plaintiff. This action is brought to foreclose said mortgage, the balance claimed to be due being $2,400 and interest. The defendants answered, claiming payment of the entire mortgage debt except $200, for which they tendered judgment, with interest and costs. Plaintiff had judgment for the amount claimed, with interest and costs. Defendants have appealed.</p>

<p> Forcible entry and detainer: Jurisdiction: Notice to quit: Proof of service: Landlord and tenant: Lease: Construction: Court and jury: Prejudicial error: Pleading: Counterclaim. </p> <p>1. In an action for unlawful detainer, the complaint, being in the form prescribed by law, confers jurisdiction of the subject matter. The summons is merely the means of acquiring jurisdiction of the person, and an objection that it is not in the form proscribed by law is waived by appearing generally without objection to the jurisdiction over the person.</p> <p>3. A notice to a tenant who was in default in the payment of rent, in substance: “I hereby demand that you deliver up and surrender to A. B., the undersigned, within three days of the service of this notice upon you [the described premises], for the reason that you have failed to comply with the conditions and agreements of the lease under which you went into possession thereof, by neglecting and refusing to pay the rent due thereon [specifying the date when due]: Now, therefore, unless the said rent is paid or possession of said premises delivered to me as herein demanded, I shall proceed to obtain possession thereof,” — satisfies the statute (sec. 3358, Stats. 1898), which requires that the notice shall demand in the alternative the payment of the rent or the possession of the premises.</p> <p>3. Where there was no pretense that a notice to a tenant to pay rent or surrender possession of the premises was not served as specified in the return of an officer indorsed thereon, its admission without objection, and its confirmation by the testimony of the officer, proved, prima facie, the service of the notice, even though the return might have been inadmissible if objected to.</p> <p>i. Where a lease provided that, in case the landlord desired to sell the premises during the term, the tenant should have “ the first privilege of buying said property ” at a certain sum, there was nothing in this promise, — the contingency giving the right to exercise such option not having arisen, and the tenant not having parted with . any value or otherwise changed his position by reason of it,— which gave him any rights in the premises save such as he held as tenant under the lease.</p> <p>5, Where the evidence was all on one side and uncontradicted, and so conclusively established all of the facts material to plaintiff’s recovery that it would have been the duty of the court to direct a, verdict in her favor, the refusal of the court to allow a jury trial is not prejudicial to defendant, and the' error, if any, cannot be ground for reversal on appeal, under the positive command of sec. 2839, Stats. 1898, that no judgment shall be reversed for any error or defect which shall not affect the substantial rights of the adverse party.</p> <p>6. An answer in an action for forcible entry and detainer, which alleged a promise and failure to repair, whereby defendant’s ice was destroyed and the premises rendered of no value, with no act damnum clause, and no facts pleaded expressly as a counterclaim, or so denominated, is demurrable as a counterclaim.</p>

<p>Appeal from a judgment of the circuit court for La Crosse •county: O. IB. Wyman, Circuit Judge.</p> <p>They contended, inter ■alia, that the statements and declarations contained in the medical examination paper did not constitute a warranty; neither did these statements and declarations, together with the contract itself, constitute a warranty. Campbell v. Few England M. L. Ins. Go. 98 Mass. 381, 391; Moulor v. Am. L. Ins. Go. Ill U. S. 335; Anders v. Supreme Lodge K. of H. 51 N. J. Law, 175; Vivar v. Supreme Lodge K. of P. 52 N. J. Law, 455; Glapp v. Mass. Fen. Asso. 146 Mass. 519; Illinois M. B. Asso. v. Winthrop, 85 Ill. 537; Supreme Lodge K. of P. v. Edwards, 15 Ind. App. 524; Daniels v. Hudson Fiver F. Ins. Go. 12 Gush. 416, 424.</p>

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

<p>Appeal from a judgment of the circuit court for Wau-paca county: Chas. M. Webb, Circuit Judge.</p> <p>This is an action in equity to cause the removal of fences-maintained by the defendant across a street passing plaintiff’s premises, and to perpetually enjoin their maintenance. The land is located in the unincorporated village of Maniwa,, in the town of Little Wolf, Waupaca county. In 1816,. William Evans, who was the owner thereof, laid out, platted,, and recorded an addition consisting of four blocks, called Evans’s addition to the village of Maniwa. It adjoined J. M. Bounds & Co.’s addition on the south, and the streets-running north and south through the two additions correspond and bear the same name. Title to blocks 2 and 4-came to defendant in 1891. Factory street runs along the east margin of these two blocks. In 1890 defendant conveyed lots 5 and 6, block 4, to plaintiff. These lots comprise the northeast quarter of the block, and abut on Factory street. Block 2 is immediately north, being separated from the plaintiff’s premises by'Third street. Defendant’s deed to plaintiff described the property conveyed as “lots 5 and 6 of block 4 of William Evans’s addition to the village of Maniwa, in the town of Little Wolf.” Plaintiff immediately^entered into possession, and built a residence and barn thereon. Defendant has since maintained a fence across Factory street, at the south line of block 2, and another across the same street, near the north line. These fences-constitute the alleged nuisances. The case was tried by the court, and findings made, among other things, that Factory street'T.ad never been opened or worked; that, by reason of the-obstruction in the street, plaintiff’s premises were less desirable for residence purposes, and less valuable by one or two hundred dollars; and that plaintiff’s injury was not-different in kind from that suffered by the public in general. The conclusions were that plaintiff was not entitled to relief; that Factory street opposite blocks 2 and 4 was not a public highway when plaintiff purchased his lots; and that defendant was entitled to judgment. Due exceptions to •the findings were filed, and from the judgment entered for defendant the plaintiff has appealed.</p>

<p> 'Trespass: Instructions to jury: Evidence: Possession of dwelling by wife in husband’s absence: Damages. </p> <p>1. In an action for unlawfully trespassing upon and entering the premises and dwelling house occupied by plaintiff, it appeared, among other things, that the house belonged to plaintiff’s husband; that in the night time, during his absence, and without plaintiff’s consent and against her protest, defendant entered the house through the back door and began fussing with his clothes; that defendant said nothing while in the house, but walked up to the bedroom door; that on plaintiff’s ordering him out, he passed through the house and went out of the front door. Held, that plaintiff, being at the time in the exclusive possession of the dwelling house and premises as against the defendant, might recover such damages as she sustained by reason of such invasion of her possession and rights, even though the evidence was insufficient to show any direct assault upon the plaintiff, or any attempt to have carnal intercourse with her.</p> <p>2. The plaintiff in such case is not entitled to recover any damages to the premises, that being a matter between the owner of the house and the defendant.</p>

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

<p>Appeal from orders of the superior court of Milwaukee ■county: J. C. Ludwig, Judge.</p> <p>On the 2d of January, 1900, the common council of the ■city of Milwaukee passed an ordinance and a resolution in.' identical terms, each, of which purported to grant to the defendant railway company the right to operate street railways upon certain streets in said city, and also purported to renew and extend all the existing railway franchises already owned by the railway company upon other streets in said city, and requiring said defendant railway company to^ file a written acceptance of the grants so made within thirty days. On the 5th of January, 1900, one J. G-. Trentlage commenced this action in equity against the railway company and the city for the purpose of restraining the railway company from filing its acceptance of said grants, and restraining the city officers from receiving such acceptance, and preventing the railway company from laying street railway tracks and operating a street railway upon First: avenue, in said city; the same being one of the streets covered by the grant.</p> <p>The complaint alleged, in substance, that Trentlage was a citizen and taxpayer of the city of Milwaukee, and owned two lots on said First avenue, and brought the action in his-own behalf and in behalf of all other taxpayers and owners' of property in said city similarly situated, being many thousands in number; that the defendant railway company was a corporation authorized by its charter to carry freight and passengers by any kind of power as a common carrier, and owned, or claimed to own, certain licenses or rights under ordinances of the city to use a large part of the streets, of the city for street railway purposes for limited periods of time, which had not yet expired, and which streets did not include First avenue and a number of streets specifically named. The complaint then proceeded to allege certain-facts which constituted the grants attempted to be made by the ordinance and resolution of January 2d illegal and void. These allegations were, in substance, to the following effect: That a scheme or plan had been entered into by the mayor1 and certain members of the common council with the officers of the defendant railway company to extend the existing franchises of the company, and fix the rates of compensation to be charged by the company, and also to grant the right to use all the principal streets of the. city for street railway purposes, for the purpose of preventing the common council of the city in the future from regulating rates of fare, or taking any action in respect to the granting of new franchises or the extension of existing franchises, and the fixing of the rate of fare for the carriage of passengers; that said franchises and privileges were of great value, and that large amounts of money had been offered for them, but that the same had been improvidently given away by the city, by virtue of said ordinance and resolution,, without any ’ remuneration, and that the city had no right or power to grant the same without consideration; that the money which the city might and could obtain for the franchise was thereby lost to the city, and that the city’s expenses in the care and widening of the streets and viaducts thereby granted would be greatly increased,, and the burdens of the taxpayers in said city correspondingly increased; that the defendant company proposed to operate its cars by the overhead electric system, and erect poles and wires in the streets, carrying both freight and passengers, and that no provision had been made for compensation to the plaintiff and other abutting owners, and that the defendant company threatened and intended to enter upon First avenue and upon the plaintiff’s premises without -compensation, and- operate its railway upon said street; that the defendant railway company has already issued a mortgage and bonds upon all its acquired franchises, including those mentioned in this action, and intends to still further issue bonds thereon which will become a lien thereon in the hands of innocent purchasers ; and that the plaintiff and other taxpayers will be remediless.</p> <p>The complaint also alleges that there were illegal and improper means employed by the officers of tbe railroad company to secure said grant, in that the said officers agreed to pay about $8,000 to various citizens for the purpose of silencing their opposition to said ordinance; that the ordinance in question was invalid, because not referred to a committee before action thereon by the common council, and because the action of the common council was not preceded by the report of a committee thereon, as required by the city charter; that said ordinance was invalid because no notice of the application for the grant had been published as required by sec. 9405, Stats. 1898. It was also alleged that the plaintiff had no adequate remedy at law.</p> <p>' Upon these allegations the plaintiff prayed that the defendant railway company be enjoined from accepting said ordinance and resolution, and that the grant of the common council be set aside and annulled, as a cloud on the plaintiff’s title, and that the plaintiff have such other order or judgment as might be equitable.</p> <p>Upon this complaint a preliminary injunctional order was obtained, enjoining the company from accepting said grant, and the officers of the city from receiving any acceptance thereof, and also enjoining the company from building its railway on any part of First avenue.</p> <p>Immediately upon the service of the complaint and in-junctional order, the defendant company moved upon the complaint to vacate the injunctional order, which motion was denied on the 29th of January, 1900. Upon the same day the plaintiff Trentlage came into court and filed a notice of discontinuance of the action, and attempted to move the court to dismiss the action; but said motion was not passed upon until the following day, when the Linden La/nd •Company, a corporation which owns certain real estate fronting upon Locust street, one and one-half miles distant from Trentlage’s lots upon First avenue, came into court and made a petition ashing to be substituted as plaintiff in the ■action, whereupon, the court refused to dismiss the action, but allowed Trentlage to withdraw as plaintiff, and substituted the Linden Lcmd Convpam/ in his place as plaintiff, and allowed the new plaintiff time in which to frame and file a new complaint. On the 29th of March, 1900, the Substituted plaintiff filed a new complaint, and upon the 6 th of April following one Chernies J. JEigel, who owns a lot upon First avenue some distance from Trentlage’s property, made .petition to the court, asking to he joined as plaintiff with the Linden Lcmd Company, which petition was granted April Y, 1900, against the defendant’s objection.</p> <p>The amended complaint of the Linden Land Company alleged its ownership of lots abutting on Locust street, one ■of the streets mentioned in the grant, and also alleged that it was a taxpayer, and maintained this action in behalf of all taxpayers and abutting owners similarly situated. It charges that the defendant railway company is an ordinary commercial railway, carrying passengers and freight. It set forth with particularity the previous grants of said railway franchises which had been made to different corporations, and which had been purchased by the defendant railway company, and had not yet expired. It then charged .substantially the same illegalities in the ordinance attacked which were charged-in Trentlage’s complaint,— going, however, more into details; and the prayer for judgment contains a specific demand that the defendant be enjoined from entering on any part of the premises of the plaintiff, or other taxpayers and abutting owners in whose behalf the suit is ■brought. After the service of this complaint, the defendant railway company answered, putting in issue most of the ■allegations of the complaint.</p> <p>Upon this answer and certain affidavits the defendant made ■a second motion to dissolve the injunctional order, which rvas heard and denied on the 9th day of June, 1900. From the order of January 29th refusing to vacate the preliminary in junctional order, and from the order of dune 9th to the-same effect, the defendant railway company appeals.</p> <p>They contended, inter-alia, that the ordinance in question was unconstitutional. Chicago d N. W. B. Co. v. M., B.dK.E. R. Co. 95 Wis. 512;. State ex rel. Att'y Gen. v. Dayton T. Co. 7 Ohio Legal News, 318; Shermcm v. M., L. S. da W. B. Co. 40 Wis. 045; Shejoardson v. M. d B. B. Co. 6 Wis. 605; Newell v. Smith, 15 Wis. 101 ^ Bigelow v. W. W. B. Co. 27 Wis. 486; Chicago da N. IF. R. Co. v. O., A. d B. W. B. Co., ante, p. 192; Connecticut River-B. Co. v. Oommlrs of Franklin, 127 Mass. 50; Néjponset M. Go. v. Tileston, 133 Mass. 189; State v. Perth Amboy, 52 N. J. Law, 132; State v. C., M. d St. P. B. Co. 36 Minn. 402; Brewer v. Bowrncm, 9 Ga. 37; Foster v. Stafford Nut. Bank,. 57 Yt. 128; Bloodgood v. M. d II. B. B. Co. 18 Wend. 9;. Peoffle ex rel. Harvey v. Loew, 102 N. Y. 471; Williams v. N. Y. C. B. Co. 16 N. Y. 97; Cooley, Const. Lim. (5th ed.), 693, 679 note 2, 705; Randolph, Eminent Domain, § 229. Said ordinance and sec. 1862, Stats. 1898, were unconstitutional under sec. 1, art. II, and secs. 31, 32, art. IY, Const. Morawetz, Priv. Oorp. (2d ed.), § 12; Stevens Point B. Co. v. Reilly, 44 Wis. 295; 4 Thomp. Corp. § 5342; Adams v. Beloit, 105 Wis, 363; Pennsylvania R. B. v. Montgomery Co. Pass. By. 167 Pa. St. 62; Sims v. Street B. Co. 37 Ohio-St. 556; Chicago C. R. Co. v. Peoffle ex rel. Story, 73 111. 547; Belleville v. Citizens' N. B. Co. 152 Ill. 171; School Dist. v. Ins. Co. 103 U. S. 707; State ex rel. Att'y Gen. v. Madison. St. R. Co. 72 Wis. 612; State ex rel. Cream City R. Co. v. Hilbert, 72 Wis. 184; State ex rel. Milwaukee St. B. Co. v.. Anderson, 90 Wis. 550; State ex rel. Church Mut. Ins. Co. v. Oheek, 11 Wis. 284; Black River Imp. Co. v. Ilolwwy, 81 Wis. 584; 'Central T. Co. v. Citizens' Si.R. Co. 80 Fed. Rep. 218; S. C. 82 Fed. Rep. 1; low v. Marysville, 5 Cal. 214; California 8. T. Co. v. Alta T. Co. 22 Cal. 398; 8cm Francisco v. Spring Valley Water Works, 48 Cal. 493; Waterloo T. R. Co. v. Cole, 51 Cal. 381; Omnibus R. Co. v. Baldwin, 51 Cal. 100; People v. C. P. R. Co. 83 Cal. 393; Sprung Valley Water Works v. Schottler, 62 Cal. 105; Ex parte Pritz, 9 Iowa, 30; H&therington v. Bissell, 10 Iowa, 145; Baker dé Griffin v. Steamboat Milwaukee, 14 Iowa, 214; McGregor v. Baylies, 19 Iowa, -43; Stange v. Dubugue, 62 Iowa, .303; Denver dé S. R. Co. v. Denver Gity R. Go. 2 Coló. 613; Atkinson v. M. c& G. R. Go. 15 Ohio St. 21; State ex rel. Att'y Gen. v. Oincinnati, 20 Ohio St. 18; Pennsylvania dé O. G. Go. v. Gomm'rs of Portage Co. 21 Ohio St. 14; Ames v. I. 8. <& M. R. Go. 21 Minn. 241; Green v. Knife Falls B. Corp. 35 Minn. 155; State ex rel. Oomm'rs v. Cooley, 56 Minn. 540; Alexander v. Duluth, 51 Minn. 41; State éx rel. Childs v. Copeland, 66 Minn. 315; State ex rel. Green v. Lawrence B. Go. 22 Kan. 438; Topeka v. Gillett, 32 Kan. 431; Little Rock v. Parish, 36 Ark. 166; Glegg v. School Dist. 8 FTeb. 118; 4 Thomp. Corp. § 5342; 1 Dillon, Mun. Corp. (4th ed.), § 6, and cases in notes; 1 Morawetz, Priv. Corp. (2d ed.), §§ 10-18, and case cited in notes; 32 Am. Law Reg. 613,121, 816, ■922, 1019, 1109.</p>

<p>Appeal from a judgment of the circuit court for Columbia county: E. G. Siebeckee, Circuit Judge.</p> <p>Action to recover §100 paid by plaintiff on a verbal agreement to purchase an undivided one-half interest in a hotel and the furniture therein, on the ground that the agreement was void by the statute of frauds. Defendant answered that plaintiff took immediate possession of the property as owner upon payment of the §100, and retained and enjoyed the property exclusively for a considerable period of time, when it was agreed that the trade should be declared off and that defendant should retain the §100 as damages, and that, pursuant to such agreement, plaintiff redelivered possession of the property to defendant. Defendant further answered that, on or about the time the trade was declared off, plaintiff conveyed to defendant and his partner, William Foreman, a one-half interest in the furniture contained in the hotel and the books and books of account of the firm •of jOuddy & Foreman Bros., who had theretofore run the hotel, and also released defendant and said William Foreman from all claims he had against them or either of them, for the sum of §2,500.</p> <p>At the close of the evidence the court directed a verdict in plaintiff’s favor for the amount of his claim, upon the .ground that there was no proof of a settlement between the parties and release of the claim in suit; that the verbal ■contract of sale of the hotel property was not in all its terms clearly shown; and that it was not shown beyond dispute that possession of the property w:as delivered to plaintiff pursuant to the verbal agreement. Defendant excepted to adverse rulings on questions of evidence and to the granting of plaintiff’s motion for the direction of a verdict. Judgment was entered in plaintiff’s favor, and defendant appealed.</p>

<p>Appeal from a judgment 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: E. G. Siebeckeb, Circuit Judge.</p> <p>The evidence tended to prove that the defendant employed plaintiffs, real-estate agents, to find a purchaser for his farm of about 230 acres, containing 218 acres within fences, exclusive of highways and railroad, and agreed to give them as commission whatever any purchaser found by them would pay for the farm over and above the sum of $10,000, no exclusive authority being given, nor express restriction placed on defendant’s right to sell meanwhile; that plaintiffs incurred some expense and labor in seeking purchaser; that, the farm was offered at the price of $45 per acre for 230 acres to one Nesbit, who promised to examine it, and was. then to make his offer, and who promised that he would deal through the plaintiffs. Plaintiffs thereupon notified the defendant that they had got a purchaser for the farm, naming him, and stating the price asked, and the defendant responded, “ All right, I will ask him $45 an acre for the farm.” Two or three weeks afterwards the plaintiffs learned that the defendant had closed a bargain with Uesbit at $10,000, whereupon they demanded and he refused to pay any commission. .Plaintiffs’ services were reasonably worth $350. At the close of plaintiffs’ evidence the court entered a judgment of nonsuit, from which they appealed.</p>

<p> Statute of frauds: Contract for sale of lands: Memorandum: Requisites. </p> <p>1. A memorandum, signed by both parties, reciting, among other things, that, in consideration of the purchase of certain real estate, sufficiently described, for a specified price, the seller agrees to sell a certain stock of merchandise and store furniture and fixtures at cost, less an agreed discount, payments to be made at agreed times, satisfies the statute of frauds (sec. 2304, Stats. 1898), since it does not require resort to parol evidence to ascertain the terms of the contract, and is plain, distinct, and definite as to parties, property, price, and terms of payment.</p> <p>2. Under said sec. 2304 it is not necessary that the memorandum should contain apt and definite words expressing the agreement to convey: it is sufficient if, from a consideration of the whole contract, it can be gathered that it is the intention of one party to convey and of the other to purchase.</p>

W. Buexell, Judge. Plaintiffs filed a claim against the estate of William S. Warner for $4,200, based on facts alleged substantially as-follows: November 11,1884, plaintiffs conveyed to Warner, by deed absolute in form, a large number of tracts of land,, particularly describing them, to secure their indebtedness to him amounting to about $3,000.

<p> Highways: Pleadings: Negative pregnant: Death: Traveled trade: Gourt and jury: Proximate cause: Verdict: Notice, by whom signed, ivhen sufficient: Widow: Pecuniary loss: Evidence: Instructions to jury: Intoxication: Contributory negligence. </p> <p>1. In an action against a town to recover for the death of plaintiff’s intestate, the complaint alleged that the road where the accident occurred was a public highway. The answer, while admitting the existence of a wagon road at the place in question, alleged want of sufficient knowledge or information to form a belief as to whether the road was a legally laid out highway, or whether the defendant was in duty bound to keep it in repair, and therefore denied the same. Held, insufficient to raise an issue as to whether the locus in quo wTas a public highway. Towns should be held to . know what roads within their limits are public highways.</p> <p>'2. 'Whether a large log lying at right angles with .the traveled track, one end being within a few inches of such track, constitutes a defect in the highway is a question for the jury, even though there was at that point a smooth road about ten feet in width.</p> <p>■3. In an action to recover for the death of plaintiff’s intestate, alleged to have been caused by a defective highway, it appeared, among other things, that deceased, a strong, healthy man, thirty-eight years of age, was found dead on the highway with his face smashed in, evidently the result of á fall from his wagon; that there was considerable blood upon the highway and upon his face; that deceased had been traveling ih his wagon south over the road in question ; that about forty-eight feet north of where the body was found there was a- large log lying nearly at right angles to the track, one end being within a few inches of the east track; that about eight inches from the end of the log there was a fresh mark, apparently of a wagon wheel, with a wagon track leading to it from the north; and that the team and wagon of deceased were found about forty-five rods south, standing by the side of the road. Held, that the questions whether deceased was thrown from his wagon by reason of its striking the log, and whether his death resulted from the injuries received in his fall, were for the jury.</p> <p>-4. Under sec. 1339, Stats. 1898 (requiring a notice in writing, signed by the party, his agent or attorney, to be given to a supervisor of the town), notice of a claim against a town for damages for the death of a person occasioned by a defective highway need not be signed; by the administrator of the deceased, but may be given by the beneficiary to whom the damages will accrue in case of recovery. Parish v. Eden, 62 Wis. 272, followed. [Whether such notice is necessary in case of an action for death under secs. 4255, 4256, not determined.)</p> <p>5. The notice required by said sec. 1339, Stats. 1898, may be given by the delivery of a duplicate original.</p> <p>6. On an issue as to the pecuniary loss of a widow, caused by the death of her husband, it appeared, among other things, that deceased was a strong, healthy man, thirty-eight years of age; that he owned 160 acres of land, fifteen acres of which were cleared, and that therefrom he supported his wife and three children; that with her help he raised during the year before his death about 300 bushels of grain, 100 bushels of potatoes, half an acre of corn, and some hay; that she did all the work after his death, but did not raise quite as much as when he was alive. Held, sufficient to authorize the submission of the question to the jury, in view of the difficulty of proving exact values in such cases.</p> <p>7. In view of the fact that the liability for accidents upon highways is purely statutory, and that the statute creating it (sec. 1339, Stats. 1898) provides for recovery in case of damage caused by “ the insufficiency or want of repairs ” of any bridge or road, it is better, in submitting to the jury the question of liability, to use the statutory terms, rather than to attempt to use other expressions that may be substantially equivalent.</p> <p>8. In an action to recover for the death of a man who had been thrown from his wagon and killed while driving home from town on a load of feed, the evidence — stated in the opinion — is held insufficient to sustain findings of the jury that he was not intoxicated, and that he was capable of exercising ordinary care.</p>

<p>Appeal from a judgment of the circuit court for Langlade county: JohN QoodlaND, Circuit Judge.</p> <p>Equitable action by a taxpayer, suing in behalf of himself and all other persons similarly situated, to enjoin defendant county from issuing a county order on an audited bill for medical services rendered a poor person, on the ground that the claimant was not entitled to recover his claim of the county.</p> <p>The cause was tried by the court and facts were found as follows: Louis Leduchi, a poor person without means of procuring medical treatment, and having no legal settlement in Langlade County, became suddenly in need of such treatment while residing in the town of Yilas in said county. The chairman of the town of Yilas, pursuant to sec. 1512,. Stats. 1898, notified the county clerk of the county, February 9, 1898, and within ten days after the condition of Leduchi became known to him, that said Leduchi was sick and helpless and wholly without means to take care of himself and that he had no legal settlement in said town of Yilas. Said chairman of the town of Yilas conveyed Leduchi to the city of Antigo at the time notice was served on the county clerk as aforesaid, at which time he, as chairman of the town of Yilas, and the county clerk as such, employed M. J. Lower, one of the defendants, to render medical treatment to said Leduchi, and agreed that he should file his claim for services^ with such county clerk, to be paid by said county. The claim in question was filed pursuant to such agreement. The amount charged for said services is reasonable. The board of supervisors of said county, prior to the allowance of the bill in question, allowed bills for board and lodging for said Leduchi upon the ground of his being a public charge.</p> <p>Upon such facts the court decided, as matter of law, that Lower's claim was a proper county charge, and that the allowance thereof by the county board was proper because the county board accepted said Leduchi as a county pauper,. Judgment was rendered accordingly and plaintiff appealed.</p>

This action was brought to recover on a promissory note for' $1,000 executed by the defendant Goodrich to one Eow-ell, and by him sold to the plaintiff. The defendant Smith was made a party, as haying signed a guaranty on the back of the note, as follows: “I hereby guaranty the payment of the within note. A. L. Smith.'” Goodrich defaulted. Smith answered in abatement that Eowell was a joint owner of the note with plaintiff, and asked that he be made a party.

<p> Debtor and creditor: Fraudulent conveyances: Sales of chattels: Consideration: Change of possession: Instructions to jury: Burden of proof: Special verdict. \ </p> <p>1. Whether a bill of sale was fraudulent as to creditors of the vendor being at issue, it is held upon the evidence that the court should have submitted to the jury in the special verdict, in some form, the question whether a sufficient consideration passed between the parties to the transaction. Absence of a finding upon that point rendered the special verdict incomplete.</p> <p>2. Under sec. 2310, Stats. 1898 (providing that transfers of chattels shall be-presumed to be fraudulent unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession), the'delivery and possession contemplated is not such a technical delivery as would give validity, inter partes, , to a contract of sale, under sec. 2308, but such a delivery and change of possession that those familiar with the situation would naturally draw the inference of a change of ownership.</p> <p>3. Thus, under said sec. 2310, it was error to instruct the jury that if plaintiff, who claimed a threshing machine under a bill of sale from his brother, alleged to have been made in fraud of creditors, hired his brother to continue to run the machine, and the brother acted as the servant or agent of the plaintiff, then the jury should find the “real possession ” was in the plaintiff. Such instruction is diametrically opposed to the statute.</p> <p>4. Judgment having been rendered against plaintiff’s brother, a threshing machine in the debtor’s possession was seized on execution issued on such judgment. Plaintiff replevied the machine, claiming title under a bill of sale from his brother, but the transaction between plaintiff and his brother had not been accompanied by an immediate delivery of the machine, followed by an actual and continued change of possession. Held that, under sec. 2310, Stats. 1898, the presumption of fraud as against creditors arose, and that the burden of proof rested on the plaintiff to remove that presumption.</p> <p>5. Relationship between the parties to a bill of sale, while not necessarily a badge of fraud, is properly to be considered as a circumstance in deciding whether the transaction was in good faith or with a hidden purpose of defrauding creditors of the grantor.</p> <p>■6. Where one of the questions of a special vei’dict was whether the plaintiff ought to have known that the transactions whereby he obtained title to the goods of a debtor were for the purpose of preventing the debtor’s creditors from or delaying them in collecting their claims, a requested instruction to the effect that a sale is void where the object of the debtor is to hinder and delay, if made to one having knowledge of the intent, and that such knowledge need not be actual, but will be inferred from facts and circumstances sufficient to l’aise.a suspicion, or put him on inquiry, informs the juiy of the legal effect of their answer to a portion of the special verdict, and its refusal is not error.</p> <p>'7. It is not error to refuse to instruct the jury that, if a purchaser of chattels knew the’ seller was largely indebted and pressed by creditors, then it was his duty to see that the purchase price was applied to the seller’s debts; no such duty rests on the purchaser unless, by reason of other facts, he is chai-geable with complicity in a fraud which would avoid the purchase.</p>

<p>Appeals from judgments of the circuit court for Outa-gamie county: JoHN GoodlaNd, Circuit Judge.</p> <p>Action to enforce the liability of heirs under sec. 3274,. Stats. 1898. The action was commenced May 25, 1897, against Dolly M., Martha M., William II., and Myrtle loucks, minor heirs, and Wallace K, Stephen P., and Kate Rose Loucks, adult heirs, of Phineas Loucks, deceased. The complaint set forth in substance the following facts: April 1, 1874, Phineas Loucks made a promissory note and delivered it to plaintiff, promising to pay plaintiff or bearer §338.71 one day after date with interest at the rate of ten per cent, per annum. April 4, 1876, he paid $63.33, May 22, 1877, $300, and October 28, 1890, $50. There is due the principal of the note and interest from its date at the rate mentioned therein, less the payments acknowledged. Phineas Loucks removed to California in 1877, and thereafter remained absent from this state till he died in 1891. He left no heirs except the defendants, his children, to whom his property in this state descended at his death. He then owned, in Outagamie county, this state, an undivided one-half interest or more in the N. E. J of the S. E. ¿ of section 18, town 32, range 18 E., worth about $600. He left no other property in this state. No administration has been granted in this state. There are no means by which plaintiff can collect his claim except by resorting to the land aforesaid and the statutory liability of the heirs under sec. 3274, Stats. 1898. Judgment was asked for, making plaintiff’s claim a lien upon the land.</p> <p>On an affidavit stating the same facts as those above set forth, and containing no allegation of indebtedness of the defendants to plaintiff, a writ of attachment was sued out, under which the interests of defendants in the land mentioned were seized. January 5, 1898, defendant answered, pleading the six-years statute of limitations, and putting in issue substantially all the allegations of the complaint except that in regard to Loucks’s removal to California and his death in 1891, his leaving the land in Wisconsin, its descent to defendants as bis heirs, and that he left no other property in this state. The writ of attachment was set aside as unauthorized by law and unsupported by proper affidavit.</p> <p>July 22, 1897, defendants were permitted to serve a supplemental answer to the effect that subsequent to the commencement of the action and before the filing of any notice thereof, they alienated the land mentioned for value and in good faith to Louis Jacquot, who was a bona fids purchaser thereof. Thereafter plaintiff was permitted to file a supplemental complaint and to bring in, as defendants, Humphrey Pierce, the guardian ad litem of the minor defendants and •attorney for the defendants, Louis Jacquot, the alleged purchaser of the land, and John Hurst. The supplemental complaint charged, in effect, in addition to the allegations contained in the original complaint, that the heirs of Phineas Loucks in bad faith attempted to convey their interests in the land to Jacquot and that he conveyed the interest he thereby obtained to defendant Hwst; that the entire consideration for the land, which was to move to the heirs, had not been paid; that such part as had been paid was in the possession of defendant Pierce; that each and all of the parties had knowledge of and participated in the purpose of divesting said heirs of the title to the property, and that .such purpose was to place the land and the proceeds thereof beyond the reach of plaintiff and prevent the collection of his claim. It was further charged that the validity of the title of Hurst, as to the interest in the land which he claimed to have obtained through Jacquot, was dependent upon whether a foreign guardian, without a,ny authorization from •a court of this state, can by bis deed pass title to real estate •of his ward there situated. The pleading set out in detail the history of the formation of the scheme of conveying the land to Jacquot, and his conveying the same to Hurst, and ■alleged with particularity that the purpose thereof was to defraud j)laintiff, and that such purpose was participated in •by each and all of the added defendants.</p> <p>Defendant Pierce interposed a general demurrer to the •complaint, and also demurred upon the ground that several causes of action were improperly united. Defendants Hurst and Jacquot joined in alike demurrer. The demurrers were sustained. A judgment was rendered dismissing the complaint as to Pierce, with costs in his favor, and a like judgment was rendered in favor of defendants Hurst and Jacquot.</p> <p>The allegations of the complaint, aside from the new matter brought in in relation to the alienation of the property to Jacquot, were established by the evidence. Plaintiff objected to evidence offered by defendants as to the lonafides of the alienation of the property to Jacquot because the .action had been dismissed as to him, leaving no issue as to the good faith of the alienation that could be effectually tried. The objection was overruled. Evidence was given that a fair consideration for the land was paid by Jacquot. Plaintiff did not offer any evidence on the issues presented by the supplemental complaint.</p> <p>The findings were as follows:</p> <p>The allegations of the complaint, independent of the new matter brought in by supplemental complaint, are true.</p> <p>January 24, 1898, the adult heirs, in good faith and for value, alienated their interest in the real estate sought to be charged, to Louis Jacquot.</p> <p>~W. H. Hurst was appointed general guardian of the minor defendants by a court of competent jurisdiction in California, and was authorized by such court to sell the interest of such minors in the land in question. He made a sale thereof to Jacquot pursuant to such authority and conveyed the property accordingly, the same being made in good faith and for a fair consideration.</p> <p>This action was commenced more than six years after the cause of action accrued.</p> <p>Notice of the pendency of the action was duly filed April 26, 1898.</p> <p>Upon such findings the court decided that plaintiff was-guilty of laches to the prejudice of defendants, and that they were entitled to judgment dismissing the complaint with costs.</p> <p>Separate appeals were taken by plaintiff from the judgments.</p>

<p>Appeal from a judgment of the circuit court for Forest county; JohN Goodland, Circuit Judge.</p> <p>This is an action upon 176 town orders. The facts were stipulated, and were, in substance, as follows: On the 7th of April, 1896, and for some years' prior thereto, the town of Pelican Lake, Forest county, was a duly organized town, containing less than 500 inhabitants, and having a territory of more than two congressional townships. At the annual town meeting of said town held April 7, 1890, the electors voted a highway tax of $1,000, and in form voted to authorize the town board of supervisors to levy a tax for highway purposes, in addition to said $1,000, of fifteen mills upon the dollar upon the assessed valuation of the town. Thereafter the town board of supervisors in form levied an additional highway tax of nine mills upon the dollar, making a total sum of $4,330 of highway taxes levied and collected in the town for that year. During that year work was done upon the highways, and town orders issued therefor amounting in all to $4,331.63. Among the orders so issued were a part of the 176 orders sued on in this action, which were duly assigned to the plaintiff before the commencement of this action. A part of the highway orders held by plaintiff and sued on in this action were issued for work done before the sum of $1,000 had been expended upon the highway and a part afterwards. On the 26th day of September, 1896, the plaintiff presented the orders for payment to the town treasurer, and payment was refused. On the 21st day of April, 1897, the town of Pelican Lake was dissolved by virtue of ch. 278, Laws of 1897, and the town of Cavour was created, comprising most of the territory of the town of Pelican Lake, and succeeding to all of the rights and liabilities of said town of Pelican Lake. On the 10th of June, 1897, the plaintiff filed his claim in the office of the town clerk of the town of Cavour for presentation to the board of audit, but ten of the orders sued upon in this action were not included in said claim. It was stipulated that all the orders were valid except the highway orders issued after $1,000 had been expended and those which had never been presented to the board of audit.</p> <p>Upon these facts, trial by jury was waived, and the court held that all the orders were valid except-the ten orders which had not been presented to the board of audit, and allowed interest to be recovered at the legal rate from the time of such presentation to the board of audit. From judgment in accordance with these findings, the defendant town .appealed.</p>

<p> Fire insurance: Surrender and cancellation of policy: Agency. </p> <p>1. Plaintiff applied to R., an insurance agent, for insurance on its sawmill. Being unable to place the risk, R applied to C., defendant’s agent, and procured a policy in defendant to be issued on the mill, the policy containing a provision for cancellation by defendant on giving five days’ notice. When the issuance of the policy was reported to the home office, defendant immediately notified C. to cancel it. C. in turn notified R. of the cancellation, and R. notified plaintiff, requesting a return of the policy, and stating that lie would attempt to procure other insurance. Plaintiff forwarded the policy by mail to R., who received it three days after the receipt of notice of cancellation, but an hour and a half after a loss had occurred, and retained it in his possession until suit was . brought thereon. Held, that the policy was in force at the time of the loss, there being- no showing of any intention to consent to immediate cancellation, and R.’s acts being in harmony witli a continuance of the policy until canceled at the end of five days pursuant to its terms. ^</p> <p>% The right to cancel a policy of insurance does not exist at all except by contract, and stipulations to that effect are to be construed with reasonable sti-ictness.</p>

<p> hogs and lumber: TAens: Building logging railroad: Pleading: Alleging corporate existence. </p> <p>1. Under lien statutes services of almost any character which are per-. formed as a part of, and as mere incidents in, the work for which a lien is given, are protected, although the same kind of services, performed independently of the lienable work, are not entitled to a lien.</p> <p>2. Plaintiff performed labor for a railway company in building and keeping in repairs its railway, which was constructed for reaching and hauling all timber tributary thereto, including that of the defendant corporation, which railway was removed to reach other general regions of country only after the exhaustion of timber in that of its original construction. Logs of the defendant corporations were hauled out on such railroad, and plaintiff having taken the formal steps for establishing a lien under sec. 8829, Stats. 1898, conferring the right to a lien for “labor and services in cutting or hauling . . . logs, timber,” etc., brought this action to enforce his claim for lien. Held, that he was not entitled to a lien for his services, the work of constructing or making general repairs upon the railroad being in no proper sense incidental to, or an integral part of, the hauling of the logs.</p> <p>8. Failure to allege that a plaintiff or defendant is a corporation, and where incorporated, as required by sec. 3205, Stats. 1898, renders a complaint insufficient, and the defect may be reached by a general demurrer.</p> <p>4. That a defendant sued as the McCord Lumber Company is intended to be sued as a corporation sufficiently appears from its name.</p>

<p>Negligence: Court and jury: Pleading: Guardian ad litem: Instructions to jury: Proximate cause.</p> <p>1. In an action to recover for personal injuries, it appeared, among other things, that plaintiff, a boy nine years old, went onto defendant’s drawbridge, 228 feet long, at the request of the bridge tender, and, as the bridge was being closed, stood at one end of the draw to signal the tender when to stop. The bridge was operated by means of a sweep or lever, connected with the gearing below, the bridge tender taking hold of the end and traveling in a circle while closing the bridge. Plaintiff, whose .foot w-as crushed by being caught between the ends of the rail on the bridge and the shore rail, testified that he stood facing the end of the bi'idge with his foot on the rail. There was no evidence that the place where he stood was dangerous, or that the bridge tender could have seen his danger. Held, that there was no evidence to sustain a finding of defendant’s negligence.</p> <p>[2. Whether, the allegation of the appointment of a guardian ad litem being denied and no proof being offered to support it, the cause of action fails, not decided.]</p> <p>3. An instruction that proximate cause is that from which the result follows as the natural and probable consequence,— probable from the standpoint of the person who is charged with the lack of ordinary care claimed as the cause of the result complained of,— is erroneous. He is chargeable with such consequences as a person of ordinary intelligence and prudence ought reasonably to have foreseen would follow as the natural and probable result of his acts.</p>

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

<p>Appeal from an order of the circuit court for Chippewa county: A. J. YiNje, Circuit Judge.</p> <p>The complaint states, in substance, the following: Plaintiff is a domestic corporation. February 23,1898, it recovered a judgment in the circuit court for Chippewa county, Wisconsin, against Isador Lavoie, for $2,824.60, that was duly docketed on the succeeding day in the office of the clerk of the circuit court for said county, and upon which, September 8,1899, and before the commencement of this action, an execution was duly issued. Pursuant to such execution the sheriff of said county levied upon and advertised for sale certain lands (describing them) situated in said county, to satisfy the amount due upon the judgment, with interest and costs. ' January 24,1898, said Lavoie was, and for some . time prior thereto had been, insane, and on that day he was so adjudged and committed to one of the asylums of this state. On the same day John Theriault, with knowledge of the incompetency of Lavoie, fraudulently induced him to execute and deliver to said Theriault a deed conveying to him the said lands, which wer-e then the property of Lavoie, with intent on the part of said Theriault to hinder and delay said Lavoie’s creditors, particularly plaintiff. When llieriault obtained said deed, he knew that Lavoie was insane and incompetent to make it and also knew that Lavoie was largely indebted to plaintiff and to other parties. Theriault did not give any consideration for the lands. The indebtedness to plaintiff was contracted on the faith of a promise made by Lavoie to secure the payment thereof by a mortgage on said land, which promise Lavoie intended in good faith to fulfill, but was prevented from doing so by his becoming insane. Lavoie died March 5,1898, without leaving property sufficient to anywhere near pay his indebtedness.</p> <p>The prayer for relief was that the conveyance to Theri-ault be declared void as to plaintiff, that Theriault be enjoined from selling or incumbering the lands, and that a lien be adjudged thereon in plaintiff’s favor for the amount of its judgment and costs.</p> <p>The defendants demurred to the complaint for want of facts stated therein sufficient to constitute a cause of action, and for defect of parties defendant in that the administrator of Lavoie’s estate, his widow and heirs, were not joined as defendants. The demurrer was overruled and defendants appealed.</p>

<p>Appeal from a judgment of the circuit court for Chippewa county: E. W. Helms, Judge.</p> <p>This action was brought in justice’s court to recover for the conversion by defendant of a horse, buggy, and harness. The trial resulted in a judgment for plaintiff for six cents-damages and costs. The case was appealed to the circuit court, and was tried and disposed of upon the justice’s return of testimony. The judgment of the court below was affirmed. The following facts are shown by the record: Plaintiff purchased the property of Mrs. Lowe, a widow,, who at his direction left it át a livery stable in the city of Eau Claire. Mrs. Lowe eloped, leaving several children. William Lowe, a brother of her deceased"husband, took charge of the children. He came to Eau Claire to look up any property she may have left, and at his request the defendant, who was undersheriff, assisted him. The defendant found the property at the livery stable, and directed the persons in charge not to let any one have it. He returned soon afterwards with Mr. Lowe, and directed the livery-stable keeper to deliver the property to him, and it was-taken away. He acted on the supposition that it belonged to Mrs. Lowe. The following day he was informed by the plaintiff that he owned the property. He replied that he had acted a little too quick in the matter, and that he would have the horse brought in the next day. After the suit had been commenced, and before trial, Lowe brought the property back to the stable, and made claim for keeping of the horse. Plaintiff declined to pay, and took the property and sent it to his farm. There are other minor circumstances shown by the record tending to support the alleged conversion, but it is cleemed unnecessary to state them in detail. Defendant brings this appeal.</p> <p>contended, inter alia, that the defendant’s acts complained of did not constitute a conversion. Smith v. Schulenberg, 34 Wis. 41, 50; 2 Greenl. Ev. §§ 642, 643; Tinker v. Morrill, 39 Yt. 471"; Gassier v. Wood, 120 1ST. C. 69; Terry v: Birmingham Nat. Bank, 93 Ala. 599; 4 Am. & Eng. Ency. of Law, 108,109; 26 id. 735; Bolling v~ Kirby, 24 Am. St. Eep. 796, note; Cooley, Torts, 448; Bryant’s Justice, § 1212; Smith v. Golby, 67 Me. 169; Gurley v. Armstead, 148 Mass. 267; Hodgson v. St. Paul P. Go. 78 Minn. 172; State v. Staed, 72 Mo. App. 581; Geo. II. Fuller D. Go. v. McDade, 113 Cal. 360; Steele v. Marsicano, 102 Cal. 666; Gillet v. Roberts, 57 ÍL Y. 28; School Hist. v. Zink, 25 Wis. 636; Tucker v. Housatonic R. Go. 39 Conn. 447; Fouldes v. Willoughby, 8 Mees. & W. 540.</p>

<p>Appeals from justice's court: Trials de novo: Review of orders of justice of the peace.</p> <p>Where a plaintiff has appealed from a final judgment rendered in justice’s court, dismissing the action for noncompliance with an order requiring security for costs, and made the affidavit entitling him to a new trial, the filing of the record irrthe circuit court gives pendency to the action in that court, where it is entitled to a trial on the merits, and the propriety or impropriety of the justice’s action in ordering security for costs, or dismissing the action for noncompliance with such order, is not the subject of review.</p>

G-. Siebeokeb, Judge. This is an action of eeriiorcuri brought in due time, under the provisions of ch. 165, Laws of 1899, to test the validity ■of the attempted adoption by the common council of the ■ city of La Crosse of certain sections of ch. 40a of the Statutes of 1898, being what is known as the general city charter law. The city of La Crosse is a city incorporated under a ■special charter, viz. ch. 162, Laws of 1887.