Volume 109 — Wisconsin Reports

0. Ludwig, Judge. On June 22, 1S97, the plaintiff and defendant were both merchants at Milwaukee.

H. Johnson, Circuit Judge. This is an action on an alleged oral contract of life insurance. The plaintiff is the widow of one Henry 0. Chamberlain, who was accidentally killed in a railway accident on the 2d of May, 1899, and the defendant is a foreign life insurance company.

C. Ludwig, Judge. The appeal is from an order overruling a demurrer to the complaint in an action against the sheriff of Milwaukee county and his bondsmen to recover the fees and charges collected by him and his deputies for official services. The allegations contained in the complaint are sufficient to constitute a cause of action if the plaintiff is entitled to the fees and emoluments of the sheriff’s office which ordinarily go to the sheriff and his deputies.

C. Ludwig, Judge. This action was begun April 6, 1898, to recover damages for injuries received by the plaintiff November 14,1897, while operating a switch in defendant’s yard, alleged to have been defective and out of repair. The complaint alleged the giving of a notice of injury on April 4, 1898. The defendant answered this allegation by a general denial. At the trial the plaintiff made proof of the accident, and introduced the notice of injury in evidence.

0. Ludwig, Judge. In July, 1893, the appellant, together with Cook, Hyde, Iladfield, and Brand, were interested as stockholders in the Gothenburg Water Power & Investment Company, which was in embarrassed circumstances. They were liable, all or some of them, upon about $200,000 of indebtedness of that company, including a negotiable, undue note of $8,000 to A. L. Hane, upon which was a guaranty of payment signed, in the following order, by A. II.

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>This is an appeal from judgment against the appellants in a garnishee proceeding. The respondent, Asehemann, was ■a creditor of one Charles P. Hart in the sum of- $472, and brought action thereon April 15, 1897. At the same time he garnished the appellants, Peter Hart and Anna Hart, who denied all liability, and the respondent took issue upon such denial. Judgment was obtained against the main defendant February 27,1899, for the amount of the debt, with interest and costs, amounting in all to $553.22, and thereafter the garnishee action was tried before the court without a jury. The trial court found as facts, in substance, that the garnishees are, and for many years have been; husband and wife; that Anna Hart, in the spring of 1893, owned, and for .twenty years prior thereto had owned, a certain hotel property in Milwaukee, and that for about twenty-five years prior to the spring of 1893 the garnishees together had conducted a hotel business therein in the name of Peter Hart, deriving their livelihood out of said hotel business; that in. the spring of 1891, Anna, with the consent of Peter, leased the hotel property, with its equipments, to the main defendant (who is a son of Peter, but not of Anna), who occupied the same as tenant until the spring of 1893; that in March, 1893, Charles purchased of Anna, with the consent of Peter, the hotel property, and all the furniture and personal property in it, for $33,000, paying $2,200 down, and agreeing to pay interest on the balance in monthly instalments, as well as the taxes and insurance, and went into possession thereof, and so remained up to March 1,1897, making many valuable improvements' on the property, and refurnishing the same; that this arrangement was by parol, no deed being executed; that in February, 1897, Charles being in default in several payments of interest and unable to carry on the business successfully, it was agreed between Charles and the gar-nisbees that the sale should be rescinded, the real and personal property should ,be returned to the garnishees, and that in consideration of the return of the property, including the improvements made by Charles, the garnishees each agreed with Charles to pay his debts incurred in the business; that the plaintiff’s debt was one of the debts incurred in the business; and that, therefore, the garnishees were indebted to the main defendant in an amount exceeding the plaintiff’s judgment, and were liable as garnishees, and judgment was ordered and rendered holding them liable. Exceptions were duly taken to nearly every sentence of the findings.</p>

Williams, Judge. Action to recover on a note of which the following is a copy: “$1,500.00. Milwaukee, Wis., Aug. 28th, 1896. “ One year after date Milwaukee Trading Gormpcmy promises to pay to the order of Win. J. Morgan & Co., at their office, 411, 4th floor, Pabst Bldg., fifteen hundred and no-100ths dollars, value received, with interest at the rate of 7 per cent, per annum. “ Milwaueee TeadiNG Oo. [Corporate Seal.] “ By Fred Bjorquist, Pres. “ By Win.

H. Jonsrsos', Circuit Judge. A demurrer to the complaint on the grounds that the plaintiff has no legal capacity to sue, and that it does not state facts sufficient to constitute a cause of action,… Held: under statutes similar to ours, that a contract for separation to be valid must be made through a trustee. Whitmey v. Whitney, 15 Mise.

C. Ludwig, Judge. This was a writ of certiorari to review the action of the board of review of the town of Greenfield, Milwaukee •county, at their regular meeting in July, 1897, in refusing to lower the valuation of certain property of the relator.

H. Johütsoet, Circuit Judge. This is an action to recover certain instalments of rent under a written lease.' The action was tried by a jury, and it appeared, among other things, upon the trial, that on the 25th of September, 1894, one Jacob Weil, of Chicago, Illinois, and the defendant, 0.

C. Ludwig, Judge. Action for damages for breach of contract.

<p>Appeal from a judgment of the circuit court for Winnebago county: Geoege W. BueNell, Circuit Judge.</p> <p>Action for personal injuries. received by plaintiff about five miles' south of Oshkosh, at a crossing of a north and south highway with the Wisconsin Central Bailroad, which at that point ran so nearly north and south that the angle of crossing was only sixteen degrees. Plaintiff, a girl nineteen years of age, resided with her father about a quarter of a mile south of the crossing, and between the highway and the track. On the 28th of March, 1896, she started from her father’s house northward on her bicycle, and rode to the crossing of an east and west highway about half way to the railroad crossing, where she dismounted to cross a mud puddle. She then looked to the eastward and southward towards the. track, of which she could see about a quarter of a mile south of the crossing. She mounted her wheel, and proceeded to a point in the highway 105 feet south of the crossing, which point was about thirty feet due west of the track and about on a line with the right-of-way fences. Approaching this point, she had noticed a train to the northward, a long wray off, which at this point was obscured by fences and elevation in the ground, though she could still seé'the smoke. At this point she dismounted and looked southward. The amount of the track south of the crossing within her vision is variously estimated at from 800 feet to eighty rods. She then proceeded on foot, slowly, looking continuously to the northward, her vision of the train in that direction being obscured by the cattle-guard fences until she reached a point a few feet from the track, when she saw a freight train to the northward, which was in fact stationary and something more than 2,000 feet away, but which she thought was moving slowly towards her. "Without looking to the southward, she proceeded slowly to and onto the track, at which moment she was struck by a regular passenger train then due, running at a high rate of speed northward. At any point within the last fifty feet of her course before reaching the railroad track her vision of tbe track to the southward was unobscured substantially as far as the eye could reach, but at no point subsequent to that 105 feet away had she looked to the southward. She heard the rumble of a train, which'she took to be the freight train to the northward of her. There was evidence of failure on the part of defendants’ employees to give the requisite signals by whistle or bell.</p> <p>The court instructed the jury, among other things, that “the duty of a traveler before crossing a railway to look both ways and listen depends upon the conditions that he might reasonably expect the coming of a train at any and all times, and that his attention is not reasonably arrested or diverted; ” and that they must determine whether it was “ ordinary care and prudence on the part of the plaintiff to fail to look to the south and see this train approaching, when her attention was taken up by watching the train which was coming from the north.”</p> <p>A general verdict was rendered for the plaintiff against defendants’ motion to direct one for the defendants, which the court refused to set aside upon motion, and entered judgment for the plaintiff, from which the defendants appeal.</p>

<p>Conditional sale of standing timber: Title not to pass until payment: Filing contract: Rights of bona fide purchaser: Estoppel.</p> <p>1. A contract for the sale of standing timber, providing that until all payments are made “ the title, ownership, possession, and right of possession of said timber, or the lumber manufactured therefrom, wherever the same may be, shall be and remain ” in the vendor, is a contract for the sale of an interest in land, and is not affected by sec. 3317, Stats. 1898, requiring the filing of conditional sales of personal property in order to make them valid as against third persons.</p> <p>3. Such a conditional sale is valid and title remains in the vendor not only as against the vendee but also as against a bona fide purchaser from the vendee who has paid for th'e property without notice of the vendor’s claim; but the vendor may, by his acts, be estopped from asserting his title as against such a purchaser.</p> <p>8. The vendor under such a contract knew that the vendee was engaged in manufacturing and selling lumber, and that the timber conveyed was to be manufactured and sold, but gave immediate possession to the vendee and allowed that possession to be accompanied with all the indicia of title and apparent right to sell. He also made extensions of time for the payment of part of the purchase price, at one of which times he had express notice that the vendee was actively engaged in selling lumber. Held, that the vendor was estopped from asserting liis right as against a person who had purchased from the vendee in the ordinary course of business, without notice of the vendor’s claim, and had paid the full purchase price before receiving any notice thereof.</p>

<p>Appeal from an order of the circuit court for Winnebago ■county: Geoege W. BuRNEll, Circuit Judge.</p> <p>Action by the personal representative of Edward W. Lues-sen, deceased, under secs. 4255, 4256, Stats. 1898. The complaint contained appropriate allegations to show that the death was produced by the negligent conduct of defendant. The allegations relied upon to show pecuniary loss to the father were as follows: Said Edward W. Luessen was not married; he was seventeen years of age at the time of his ■death, and was an intelligent, healthy young man, capable of doing business and earning considerable sums of money, and left a surviving father.</p> <p>Defendant demurred to the complaint for insufficiency. The demurrer was overruled, and defendant appealed.</p>

Buenell, Circuit Judge. The defendants Elmore and Vander Zee with others, constituting the Allouez Improvement Company, were the owners, subject to several mortgages and… Held: but appears to have been suspended by reason of the discovery that the articles of association had not yet been filed. They were accordingly filed at 10:45 a. m., and at half past 11 a new stockholders’ meeting was held, at which were present all of the subscribers to capital stock except Hollmcm.

<p> Fguity: Compelling conveyance of land: Resulting trusts: Mortgages: Laches. </p> <p>1. In an action by persons claiming to be the equitable owners of land to compel a conveyance thereof to them the evidence is held to sustain a finding of the trial court that the entire purchase price had been paid by one of the defendants, in whose name the deed was taken, and that he did not hold the land in trust for the person under whom the plaintiffs claim.</p> <p>2. In such a case, even if the deed to said defendant was in fact a mortgage to secure advances, a conveyance would not be compelled without repayment of such advances.</p> <p>.3. Sec. 2077, Stats. 1898, would seem to be fatal to any claim that the title was held by said defendant in trust, whatever was the fact as to the payment of the consideration.</p> <p>4. A delay of twenty-three years after the title was vested in said defendant, before the bringing of an action to compel a conveyance, during all of which time his son (the person alleged to have been the equitable owner and under whom plaintiffs claimed by descent) was sui juris and cognizant of all tbe facts, and not only did not question, but by affirmative acts constantly recognized, his father’s ownership, is held to bar the action on the ground of laches.</p>

<p>Appeal from an order and a judgment of the circuit court for Winnebago county: G-eoege W. Buenell, Circuit Judge;</p> <p>Appeal from an order refusing to extend the time for settling a .bill of exceptions, and from a judgment in tbe action. The judgment was perfected June 21, 1898. On the same day notice of the entry of such judgment was served on defendant’s attorneys. On June 9, 1900, a motion was made on the part of defendant to settle a bill of exceptions, and on June 13th thereafter such motion was finally determined. Two years had then run from the time the judgment was entered, but not from the time it was perfected by the insertion of the taxed costs therein. On June 15th, after the denial of the motion, an appeal from the order denying the same, and from the judgment, was taken to this court, the appeals being united. ' On the hearing of the motion it was supported by several affidavits and opposed by several. Those in support of the motion showed a good ground for granting it, and those in opposition thereto denied or explained the statements in the moving papers indicating such ground. Respondents moved this court to dismiss the appeal because the order was discretionary and the appeal double.</p> <p>They argued, among other things, that although sec. 3049, Stats. 1898, permits the joinder of an appeal from a judgment with an appeal from an appealable order, this should be held to apply only when the two can be disposed of together, either because error in one will have the effect of reversing both, or when the errors in both appear at the same time in the record. On this appeal that is not the case. Even though the order is reversed, that of itself will not affect the judgment. The record would first have to be returned to the circuit court, proceedings there had for the settlement of a bill of exceptions, and the record again returned to this court. As the record now stands it is admitted that the judgment is free from error.</p>

BueNell, Circuit Judge. The defendant William Gehring was the owner of a building upon which he desired certain repairs to be made. . In the month of August, 1896, he entered into a contract with Louis Weber to do such work.

Plaintiff was the owner of lot 18, and defendant of lot 12, in Gruenhagen’s subdivision of certain land in Oshkosh.

<p>Appeal from a judgment of the circuit court for Dane county: R. Gr. Siebeckee, Circuit Judge.</p> <p>This is an action for the construction of a will. On the 22d of January, 19.00, Dr. John E. Davies, for many years a professor in the University of Wisconsin, residing in the. city of Madison, Wisconsin, died testate, leaving a widow, Olive M. Davies, and one child, the appellant, John E. Davies, eight years of age. He left real and personal property to the value of about $21,000, of-which his homestead in Madison, valued at $8,000, was a part. The widow had no separate estate or means of support of any kind. The relations between the widow and the deceased had always been cordial. The will was in Dr. Davies’s own band writing, and was made July 22, 1898, while he was away from home, and was as follows:</p> <p>“Last will and testament of John E. Davies, of the city of Madison, Dane county, Wisconsin, made on the 22d day of July, 1898.</p> <p>“ I hereby publish and declare my last will and testament as follows:</p> <p>“ I give and bequeath to Olive Merrill Davies, my lawful wife, to hold in trust for-my infant son, John E. Davies, Jr., and such other parties as may be named in this will, all my property of every description in Wisconsin, Illinois, Dakota, and other states, together with all moneys in bank, mortgages, or other securities in my possession, or that of others for me, at the time of my decease.</p> <p>“I hereby appoint my wife, Olime Merrill Davies, of Madison, Wisconsin, county of Dane, as the executor of this, my last will and testament, and trustee for the purposes hereinafter named, without bonds, unless the court shall otherwise order.</p> <p>“I hereby devise, as aforesaid, all and singular my real estate, including homestead, wherever situated, together with all other properties of which I am possessed at the time of my decease, personal as well as otherwise, to my said executor and trustee, in trust for the following uses and purposes, to wit:</p> <p>“I direct my said executor and trustee to provide for the care and maintenance and education of my son, John E. Davies, Jr., together with any other children of whom she and I may be possessed at the time of my decease, not including Clara May Davies, an adopted, but not legally adopted, child of my former wife. I also direct that she assign to him on the attainment of his professional degree, whether it be medicine, law, science or art, such sum, out of the proceeds of the sale of any real estate then in her possession, as, in her judgment, may be of help to him in starting upon the practice of his profession, and at the same time within the limits of her ability to relinquish from her estate without detriment to the other children of whom she and I may hereafter become possessed. And in case of these other children she may, at the time of their majority, or in case of their marriage, assign to them such parts of my estate or the proceeds thereof as she may .deem needful and expedient for them to have, and within her ability to relinquish.</p> <p>“ I hereby nominate and appoint my wife, Olwe Merrill Davies, the executor of this, my last will and testament, to be the proper person to compound, compromise, and settle any claim, bill, or demand which may be against or in favor of my said estate, and to attend to the payment of my just debts and funeral expenses.</p> <p>“ I hereby commit the guardianship of all my children until they shall respectively attain the age of twenty-one years unto my said wife during her life, if she shall so long continue my widow; and from and after decease or second marriage unto such trusty and esteemed friend or relative as she may decide to be fit to be such guardian of my children.</p> <p>“ I also commit to my said wife, Olive Merrill Davies, the guardianship of my aged mother whenever it may be necessary for her to have the care of a guardian. In case my widow, Olive Merrill Davies, marries again she shall see that the provisions of this will are faithfully carried out; and in no case shall the property herein alluded to, all or in part, be in any wdse subject to the use or control, even temporarily, of her husband, for any purpose whatsoever, but shall be completely and entirely for the purposes hereinbe-fore mentioned.”</p> <p>This will was duly probated in March, 1900, and the widow, Olive M. Davies, duly qualified as executrix, and thereafter commenced this action in the circuit court in her •capacity as executrix against herself individually and her son for the construction of the will.</p> <p>The circuit court, after finding the facts as above stated, held that by the terms of the wTill the testator bequeathed to his widow both the legal estate and the beneficial interest in and to all his property, subject only to the trust or burden imposed thereon for the benefit of the said John E. Damies, and that, subject to that burden, the widow is to receive, use, and disburse the income of the property of the deceased as her best interests and those of John E. Davies demand; that the interest of John E. Davies, the son, in the property, is that of a cestui q%t,e trust of the trust imposed upon the devise or bequest of the property to the said Olive M. Damies. Judgment being rendered in accordance with this finding, John E. Davies, by his guardian ad litem, appeals.</p> <p>and oral argument by B. W. Jones. They argued, among other things, that if it can be gathered from the will and the surrounding circumstances, with reasonable certainty, that the testator intended to benefit his wife by this will, words may be omitted, or supplied, transposed, or liberally interpreted to effectuate that intent. In re Don-ges's Estate, 103 Wis. 497, 500; Seott v. West, 63 Wis. 529, 551; Webster v. Morris, 66 Wis. 366, 394; Balter v. Estate of McLeod, 79 Wis. 534, 543. As an analogous case, see Oroome v. Groome, 59 L. T. Nep. 582, 584, affirmed, 61 L. T. Nep. 814.</p>

D. HastiNgs, Je., Circuit Judge. The T. C. Shove Company, a state banking corporation, having assigned April 12, 1892, plaintiffs, being creditors of said bank to the extent of $2,800 out of an aggregate of about $485,000, brought suit against defendants, nominally impleading with them the corporation and the other stockholders thereof, who, however, were not* served with process, they being alleged to be insolvent.

Williams, Judge. Plaintiff and defendant Murphy, lawyers, were copartners under the firm name of Murphy & Remington from November 24,1894, up to September 18,1896.

Orren T: Williams, Judge. The defendant owned a building in the city of Milwaukee which was occupied by plaintiff as his tenant, and used as a boardinghouse. He commenced-proceedings for unlawful detainer, and secured a writ of restitution. This writ was put in the hands of an officer, and was executed by the removal of plaintiff’s household goods from the house.

Fish, Judge. Action for damages for breach of contract. The complaint was to the effect that plaintiff was duly authorized to prosecute the action for the benefit of the estate of Alfred L. Hildebrand, deceased; that about January 2, 1897, said Hildebrand and defendant made an agreement, whereby the former bound himself to work solely for the latter for one year from January 1, 1897, and the defendant, in consideration, agreed to pay Hildebrand thereafter the sum of $5,000…

<p>Appeal from a judgment of the superior court of Milwaukee county: OeeeN T. Williams, Judge.</p> <p>The complaint alleges: The corporate character and business of defendant. That prior to April 13, 1898, plaintiff was the owner of a victoria of the value of $1,000, which prior to said date plaintiff had placed in defendant’s possession for the purpose of repairing and storing the same. That prior to said date defendant had effected fire insurance and held policies covering its stock and vehicles either owned or held by it “ in trust, or on commission, or in storage, or for repairs or sale,*but not removed,” which covered said victoria. The total amount of said insurance was $13,094. On said date fire destroyed defendant’s stock, and damaged said victoria so as to render it wholly useless. The loss on said stock, including said victoria, to the amount of $13,094, was duly adjusted. TJae total loss upon defendant’s stock was $17,220.25. After said fire, and before adjustment of loss under said policies, plaintiff caused notice to. be given defendant and the several insurance companies that she claimed the benefit of said insurance upon said victoria, and that she was entitled to be paid for all damages thereto from said fire out of the insurance money to be paid under said policies. She also notified defendant of the damage to her said property, and demanded that defendant insert in the proofs of loss her claim for $1,000 for loss and damage to her property by reason of said fire. That defendant has collected the total amount of said insurance, being the amount of $13,094, and defendant has failed and refused to pay plaintiff her proportionate share of the insurance collected on account of the damage to said victoria. Judgment for $760.39 was demanded as her proportionate share.</p> <p>The answer admits holding policies of insurance, but denies that said policies covered plaintiff’s victoria or any other property, except the interest of defendant for work done in the way of repairs; admits the loss by fire, adjustment of loss, which did not cover said victoria, except the sum of $30, which was the amount of repairs done on the same by defendant, and that defendant had collected from the companies by reason of said loss the sum of $13,094.</p> <p>Upon the trial, plaintiff introduced evidence as to the value of the victoria, and of notice to defendant and the adjuster of the companies that she claimed a right to the insurance moneys under the policies for the loss stated. She also proved by the adjuster that the claim for the value of the victoria was not included in the proofs of loss. At the close of plaintiff’s case a motion for nonsuit was denied, and duly excepted to. Defendant introduced testimony as to its intention only to secure insurance on its interest in the property, which was afterwards stricken out. A motion to direct a ■verdict for defendant was denied. The only question submitted to the-jury was as to the value of the victoria, which was found to bo $537. A motion for a new trial vras denied, and judgment was entered for plaintiff for $434.67, being for what is claimed to be defendant’s proportionate share of the insurance money paid and interest. To review this judgment, defendant has taken this appeal.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Eu&ene S. Elliott, Circuit Judge.</p> <p>The appeal is from a judgment of the circuit court affirming, with certain modifications, tiñe order of the county court for final distribution under the will of Samuel I). Lus-combe. That will, which disposed of an estate of $85,000, after certain specific bequests devised the residue of the property to the executors, David 0. Green and Thomas J. Pereles, as trustees to collect rents and profits, convert into money, and reinvest according to directions given; to pay therefrom the expenses of administration and certain specific bequests, some of which are paid and some lapsed by reason of the nonexistence of the conditions on which they were payable; but, further “ b,” to set aside the sum of $5,500, and pay the interest thereof to a daughter of the testator, Nellie M. Sanger, during the term of her life; the residue to be invested, and “ the net income derived from such investments shall be paid in equal shares and semi-annual payments, respectively, to my son, Robert [luseombe'}, and my said daughter Nellie [Sanger}, during the terms of their respective lives.” . The foregoing was embodied in what was designated subdivision “f ” of paragraph 1 of the will. The will proceeded:</p> <p>“Eighth. In the event of the death of my said son, Robert Luseombe, either before or after my decease, I give, devise, and bequeath to the laiviul issue, if any, of the said Robert Luseombe, one half ($) of the residue of my estate mentioned in subdivision ‘f’ of paragraph seventh of this will, together with, the income then accumulated thereon. In the event of the death of my said son, Robert Luseombe, either before or after my decease, without lawful issue, said residue, including the unpaid income on all of the same, my, said trustee shall: (1) Set aside one fourth (■£) part of said residue to be added to the fund and held in trust and invested in first mortgage real-estate securities for the benefit of my said daughter Nellie M. Sanger, and the income thereof paid to her during the term of her natural life, in addition to the income provided under subdivision ‘ f ’ of paragraph seventh of this will. (2) To pay one fourth (J) of said residue to my said wife if living at such time. (3) The remainder, including the part to my wife in case of her death, to be paid to my said daughter Mary J. Wright; she to have and to hold the same, to her, her heirs and assigns, forever.</p> <p>“ Ninth. In the event of the death of my said daughter Nellie M. Sqnger either before or after my decease, I give, devise, and bequeath the said fifty-five hundred (5,500) dollars mentioned in subdivision ‘ b ’ of paragraph seventh of this my will, the one-half (J) of the residue of my estate mentioned in subdivision ‘f ’ of said paragraph seventh, together with the income accumulated thereon, and the one-fourth (J) part set aside of the share of my said son, Robert Zuscombe, in the event of his death, as provided for in the preceding paragraph eight, all to be paid to the lawful issue of my said daughter Nellie M. Sanger, if any. In the event-of the death of my said daughter Nellie M. Sanger, either before or after my decease, without lawful issue, said residue, including the unpaid income on all of the same, my said trustee shall: (1) Set aside one fourth (•£) part of said residue, .to be added to the fund, and held in trust, and invested in first mortgage real-estate securities for the benefit, of my said son) Robert Zuscombe, and the income thereof paid to him during the term of his natural life in addition to the-income provided under subdivision ‘ f ’ of paragraph seventh of this will. (2) To pay one fourth (J) of said residue to my said wife, if living at such time. (3) The remainder, including the part to my wife in case of her death, to be paid to-my said daughter Mary J. Wright; she to have and to hold the same, to her, her heirs and assigns, forever.</p> <p>“ Tenth. I hereby declare that, in making provision for the payment of the income of the portion of my estate hereby .set aside for my son, Robert Zuscombe, and my daughter Nellie M. Sanger, it is my design to secure to them, and to-each of them, the necessaries of life, so that such income or estate cannot be assigned, charged, pledged, hypothecated, or in any way or manner controlled or disposed of by them, or either of them, or taken by their creditors; and for the-purpose of making myself fully qnderstood on this point, and to- carry out such" design, it is my will that my executors and trustees may, in their discretion, make payments to or for them, or either of them, from said net income, as. provided for, or to wholly withhold the same, and in case any proceedings are instituted for the purpose of reaching the income so provided for, and of diverting it from the object intended by me, and a decree or judgment obtained for that purpose, that then from that period all payments from •the said income to them, or either of them, shall cease, and I direct my executors and testamentary trustees from thenceforth to expend the said income provided for in this item of my will, so far as may be necessary or requisite, to the education and maintenance of the lawful issue of them, or either of them, until such issue arrive at the age of twenty-one years, in which event the said property shall be by my said executors and trustees assigned and conveyed to the said issue in the proportion and as provided for for them in paragraphs eight and nine of this will; and in case there is no lawful issue of them, or either of them, living, then to distribute to ■my daughter Mary J. Wright and my said wife and their issue as hereinbefore provided.”</p> <p>The will was admitted to probate by stipulation of all parties except the executors, after an extended contest, a part of which stipulation consisted in a conveyance to Robert Lusoombe by the widow, Seville Lusoombe (now Turner), and by Mary J. Wright, of any portion of the body of the trust residuum which might come to them in the event of the termination of said, trust as to Robert, either by adjudication of its invalidity, or by reason of any judgment of any kind against said Robert. Thereupon, before final settlement of the estate, on March 18, 1899, one Goodwin recovered a judgment against Robert Lusoombe in justice’s court, transcripted the same to the circuit court, issued execution thereon, which was returned unsatisfied, and thereupon commenced an action in the superior court of Milwaukee county upon said judgment, for the purpose, as the court found, of “subjecting the interest of Robert Lusoombe in the income bequeathed for him in trust by said will to the payment of said judgment,” and recovered a decree or judgment in form .subjecting the said interest of Robert Lusoombe to the payment of said Goodwin judgment and costs. The court further found that said judgments were entered upon a bona fide debt, and not with any purpose on the part of said Goodwin of avoiding tbe provisions of the will of said testator for the benefit of said Robert, but that said Robert knew that said judgment would have that effect, “ and, while not appearing in said action, permitted the said judgments to go against him, and acquiesced in them, by making no resistance to said actions and failing to pay said demand.” Neither of the executors were parties to Goodwin’s actions.</p> <p>At the time of his father’s death, Robert was, and at all times since has been, without issue, and is now unmarried, being divorced from his former wife. Nellie Sanger is a widow without children, and Mcvry J. Wright has two children. Said three persons are the only children, and with the widow, Seville, are the only heirs at law, of the testator. It was stipulated that at the time of making the will, and .at all times since, Robert was a practicing attorney, in no wise dependent upon his father or any other person, and received no pecuniary assistance from his father, but maintained himself by his own exertions, and since 1890 had been -a total abstainer' from all intoxicating liquors or any form of intoxicants, which facts were well known to the testator at and prior to the time of making his will; that at that time Robert Luseombe was a married man, but living apart from his wife, divorce proceedings being contemplated. ITis wife demanded about $10,000 permanent alimony, which demand was known to the testator, and testator was insistent that said wife should not have the right to enforce any ■claim to any of testator’s property which might come to Robert by inheritance from him, and at and prior to the time of making the will in question asserted that this demand of Robert's wife was testator’s controlling motive for making the trust provisions in said will relative to Robert, Avhich trust provisions, however, were made applicable to all judgments, as therein described, so as to comply with the law, and not specify any particular demand of any particular person. Subsequent to testator’s death, Robert obtained a divorce from bis wife, who has since remarried, so that she has no further claim for alimony.</p> <p>The circuit court held that by the rendition of the judgments in favor of Goodwin arose the condition upon which the trust for the benefit of Robert became terminated, under the tenth paragraph of the will, and that, he having no issue, a certain portion of the body of said residuum passed to and became vested in Mary J. 'Wright and the widow, Seville Lthscombe {Turner)-, that their assignments thereof to Robert were valid as between them, and transferred to him that to which they thus became entitled,— and accordingly directed payment to Robert Luscombe of one half of the residue devised in trust, less the specific $5,500 to Nellie Sanger, and the taking of his receipts therefor, as a satisfaction of so much of the share of the estate assigned and distributed to Mary J. Wright and Seville De G. Turner.1</p> <p>From an order of distribution substantially to this effect in the county court, both of the trustees appealed to the circuit court. Upon the rendition of the decree in the circuit court the trustee Percies decided and declared that, in his opinion, the welfare of the estate did not require further-appeal or litigation, and declined to join in an appeal, whereupon the other trustee, David O. Green, believing the decree to do violence to the will of the testator, served notice of appeal in his own name upon all other parties interested in the estate, including his co-executor and trustee, Percies.</p>

<p> School district treasurer: Resignation: Vacating office: Cannot be cleric: Statutes construed. </p> <p>1. Although secs. 961, 962, Stats. 1898, if unaffected by other provisions, would seem to permit a school district treasurer to resign at will and thus create a vacancy in the office, yet the specific provision of sec. 448 that *• he shall hold office until his successor be elected or appointed and qualified as herein provided” must govern; and he cannot vacate his office, therefore, either by abandonment, acceptance of an incompatible office, or resignation.</p> <p>2. Under sec. 443, Stats. 1898, providing that the clerk of a school district shall not hold the office of treasurer, a treasurer cannot, by attempting to resign and by accepting the office of clerk, become eligible to the latter office until his successor as treasurer has been chosen and has qualified.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geoiige W. BueNell, Circuit Judge.</p> <p>This is an appeal by the plaintiff from judgment dismissing its complaint, entered on sustaining a demurrer thereto. The complaint alleged the making of a contract between the plaintiff and the defendant on June 18, 1883, for payment to the plaintiff, quarterly, of a certain sum as compensation for supplying the water to hydrants for fire and other city purposes; the construction of waterworks by the plaintiff, in compliance with that contract, on or before October 1, 1884; and the refusal of the city, on demand, to pay the hydrant rental, amounting to $4,085, earned under such contract for the quarter ending October 1, 1898; also the making of a subsequent contract on August 31st for payment of hydrant rentals on certain extensions, the performance thereof by the plaintiff, and refusal by defendant to pay the hydrant rental earned thereunder for the same quarter, amounting to $1,060. The demurrer was on three grounds: first, want of jurisdiction of the person or of the subject of the action; second, that plaintiff has not legal capacity to sue; and, third, that the complaint fails to state facts sufficient to constitute a cause of action.</p>

BurNell, Circuit Judge. This is an action of divorce, brought by the wife on the ground of cruel and inhuman treatment. The divorce was granted, and the property of the parties divided, and the plaintiff appeals from that part of the judgment making division of the property and fixing the amount to be paid the plaintiff for the support of the son of the parties. The facts were that the parties were married in 1884.

<p>(1, 2) Collection of forfeitures: Justices’ courts: Jurisdiction: Complaint. (3) Highways on town lines: Apportionment: Control.</p> <p>1. Under sec. 3298, Stats. 1898, a formal complaint is not necessary to give a justice of the peace jurisdiction to issue his summons in an action to collect a forfeiture, but it is sufficient if one of the officers there named, in writing, calls the attention of the justice to the fact that a person within his jurisdiction is liable to a certain penalty and directs the collection thereof by an action before such justice.</p> <p>2. Under sec. 3295, Stats. 1898 (providing that in actions by the state to recover forfeitures “ it shall be sufficient to allege in the complaint, that the defendant is indebted to the plaintiff in the amount of the forfeiture claimed, according to the provisions of the statute which imposes it, specifying the section,” etc.), a complaint alleging a liability under a section which imposes a penalty for the doing of either of two acts is sufficient, although the specific act relied on is not stated. If the defendant cannot say from the complaint alone what he is required to meet, he should request the court to require the plaintiff to elect upon which branch of the statute it will rely.</p> <p>3. A town to which a specific part of a town-line highway has been apportioned to make and maintain, pursuant to sec. 1273, Stats. 1898 (providing that a “ town shall have all the rights and be subject to all the liabilities in relation to the part of the highway to be made or repaired ” by it as if it were wholly located therein),, has exclusive jurisdiction throughout the entire width thereof for that purpose, no exception being made as to territory in the adjoining town which is common to such highway and an ancient highway which crosses it.</p>

<p>Appeal from a judgment of- the circuit court for Sheboy-gan' count}7: Miohael-Kiewan, Circuit Judge.</p> <p>On May 15, 1898, the plaintiff sold to the defendant a second-hand traction threshing engine at the agreed price of $550, which he warranted to be in good working condition. It was found defective, and the plaintiff, who was a machinist and dealer in such commodities, assured defendant that the defects could be remedied so as to make the engine comply with the warranty. Repeated repairs and alterations were made from time to time under that assertion. The defendant retained the engine, and attempted to use it through the threshing season of 1898, during which he worked with it twenty-seven days. The engine was not in good working order, especially in inability to keep up steam, so that frequent stoppages occurred. Not until after the threshing season, in the following February, did the plaintiff succeed in repairing the defects so as to make the engine meet the warranty. Plaintiff sued for balance of unpaid purchase price, and defendant counterclaimed for special damages resulting from the breach of warranty, the damages claimed in the counterclaim being fifteen trips by defendant to Sheboygan in connection with repairs, $44.50; loss of time of defendant and his crew of threshing help during the threshing season for the purpose of making repairs and to let the engine make steam, and “damages otherwise caused by reason of the defects,” $150; expenditure for hire of another engine to complete threshing contracts, $15; and six days’ time of defendant in efforts to repair, $9. Defendant tendered judgment for $100, which tender was not accepted.</p> <p>The case was tried to a jury, and a special verdict taken, in which the balance of purchase price due plaintiff was found, without controversy, at $226.66. The jury found, further, that the engine was less valuable by reason of the noncompliance with the warranty in the sum of $250, and, in' answer to specific questions, as follows: (9) During the twenty-seven days of use of the machine, defendant’s loss, in wages paid to his men for time in which the work was stopped or suspended because the engine did not furnish the required steam, was $54; (10) the loss to the defendant on account of the loss of his time during the same period and from the same causes, was $13.50; (11) such stoppage was ■due to the defective condition of the engine; (12) the value of defendant’s time and team for thirteen trips .made to get ■engine repaired was $44.50; (13)-the defective condition made necessary the hire of another engine for five days, at $3 per day, $15; (14) the value of defendant’s time for six days spent in trying to repair the defects in the engine in question was $9; (15,16, 17) the diminished earnings during the twenty-seven days in question, by reason of the defects in the engine, were 170 bushels per day, at the price of two •and one-half cents per bushel.</p> <p>On motions for judgment, the court injected the diminished value of the engine as not within the pleadings, and rejected the loss of earnings, in response to fifteenth, sixteenth, and seventeenth questions, as too remote, but awarded defendant recovery upon his counterclaim for the items found by the ninth, tenth, twelfth, thirteenth, and fourteenth questions, aggregating $136; thus reducing plaintiff’s net recovery to $90.66, being less than the .amount •of the tender of judgment, so that by balancing of costs a net judgment of $4.91 was rendered in favor of the defendant, from which the plaintiff appeals.</p>

This is an appeal from a judgment of the circuit court allowing a claim in favor of the respondents against the estate of one James H. Mead, deceased. James H. Mead died testate at the city of Sheboygan, September 22, 1891, and letters testamentary were duly issued to the appellants, who duly qualified as executors of said will.'. There was no dispute as to the facts of the case. On the 17th of December, 1887, James IT.

<p>(1-3) Action: Conditions precedent to right to sue and to remedy. Limitations: Waiver. (4, 5) Statutes: When take effect: ‘f From and-after” publication. (6-11) Municipal officers: Election and term of office: Power of legislature: Constitutional law.</p> <p>1. Failure to perform a condition precedent to the existence of a right. as that prescribed by sec. 1339, Stats. 1898, prevents the acquirement thereof, and may be insisted upon at any stage of judicial proceedings in respect thereto.</p> <p>2. Failure to perform a condition of the use of a judicial remedy to-enforce a right having no dependence thereon for its existence — such as the condition requisite to the continued existence of a claim against a railway for the negligent killing of stock by a railway train, or damage for the negligent setting of fires by a locomotive engine, under sec. 1816b, Stats. 1898 — is waived if objection is not taken by answer or demurrer, the statute, to all intents and purposes, being a statute of limitations and governed as such.</p> <p>3. Failure to perform a statutory condition precedent to the commencement of an action — as one that no action shall be commenced to-enforce a city liability until notice shall have been given of the existence thereof and the common council of the city have had an opportunity to pass upon the same — has the same effect as failure to comply with a statute of limitations. It is in the nature of such, a statute, though failure to comply with it may only abate the action if objection be taken by answer or demurrer. If not so taken, the objection is waived.</p> <p>4. The words “from and after,” used in a statute in regard to time, are ordinarily held to signify exclusion of the day from which reckoning is to be made; and such meaning should prevail in the absence of some clear legislative intent to the contrary.</p> <p>■6. Publication of an act of the legislature prior to its taking effect being for the purpose of enabling persons affected to shape their course accordingly, a provision therefor in the form, the act shall take effect from and after publication thereof, is consistent with such words being used exclusively and inconsistent with their being otherwise used.</p> <p>6. Ch. 247, Laws of 1897, which attempted to extend the term of office of the chief of police in the defendant city, among other such corporations, beyond the term for which he was specifically elected, if valid, entitled him to hold such place and receive the emoluments thereof till succeeded by a person appointed to his place under such act.</p> <p>7. Sec. 9, art. XIII, of the constitution, prohibits the legislature from interfering in any way with the question of what person shall hold any office in any city in this state of a character known at the time of the adoption of the constitution, whether then known by the same name as subsequently or not, and limits all power in that regard to the electors of the particular locality interested, to be exercised directly or by some municipal agency selected directly or indirectly by them.</p> <p>8. City governments, at the time of the adoption of the constitution, commonly included a police department, and all offices pertaining thereto, whether now known by the names they bore prior to such adoption or not, must be considered as in the class which the constitution expi’essly declares must be filled by election by the electors of the particular localities interested, or by appointment by such authority of such localities as the legislature shall designate.</p> <p>9. The idea expressed in the constitution is not that all officers of towns, cities, and villages whose election is not provided for in the constitution may be elected or appointed in such manner as the legislature may deem best, but that all officers corresponding to town, city, and village officers as regards official duty, that were known at the time of the adoption of the constitution, shall be elected or appointed by some authority of the particular locality interested, designated by the legislature.</p> <p>10. An act of the legislature appointing members of a police force in a city is an unconstitutional interference with local affairs.</p> <p>11. An act of the legislature, so far as it expressly, or by its effect, extends the term of office of a member of the police force of a city beyond that for which he was specifically elected or appointed by legitimate municipal authority, so as to keep such officer in place for any period of time regardless of such authority, is unconstitutional and void.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeals from judgments of the circuit court for Fond du Lac county: Michael Kirwan, Circuit Judge.</p>

<p> Judgments: Docketing: Priority of liens: Tacking: Attorneys at law: Purchase of mortgage. </p> <p>1. Under secs. 2899, 2902, R. S. 1878, if a judgment against the mort-. gagor did not appear upon the judgment docket at the' time a mortgage was executed and recorded, the lien of the mortgage was prior to that of such judgment, even though the latter had been filed in the office of the clerk and some entries relating to it had been made in the court records.</p> <p>2. After the expiration of the lieu of a judgment the judgment creditor cannot, by obtaining and docketing a new judgment, tack the two and thus make a continuous lien having priority over other liens existing at the time of such expiration.</p> <p>3. An attorney at law is not, merely by reason of his position as an officer of the court, precluded from purchasing a mortgage with the intention of foreclosing it.</p>

<p>Appeal from a judgment of the circuit court for Grant <county: Geokge ClemeNtsoN, Circuit Judge.</p> <p>The defendant, being the owner of a tract of real estate in the city of Platteville, fronting north on Main street about 210 feet, and extending southward about 360 feet, through the block to another street, made a verbal arrangement with Thomas L. Oleary, a lawyer, either to make sale thereof or to find customers therefor. After several years, characterized by much correspondence, and during which the south half of the premises had been sold by said Oleary, the latter, on June 2,1896, closed a sale .of the remainder to Brown at the price of $3,500, payable upon delivery of the deed, and gave to him an acknowledgment of payment of $100 thereof, reciting the terms of the agreement of sale, and signed the same, “ O. F. Griswold, by T. L. Cleary, Agent.” Defendant, repudiated the sale, and on the day after this suit was commenced and lis pendens filed conveyed the premises by warranty deed to one McCoy, on whom had been served a-copy of the notice of lis pendens the day before the filing of complaint and Us pendens. This action being brought to require specific performance, and being tried by the court,, judgment was rendered dismissing the complaint, from which the plaintiff appeals. Further detail of facts will appear in the opinion.</p> <p>As to the power of agents to make contracts for the sale of real estate of their principal, they cited Lyon v. Polloelt, 99 U. S. 668; Johnson v. Dodge, 17 Ill. 133; Peabody v. Hoard, 46 Ill. 242; Gossitt v. Hobbs, 56 Ill. 231; Proudfit v. Wightman, 78 Ill. 553; Idem-street v. Burdielt, 90 Ill. 444; Rapalje, Real Estate Brokers,. 49; Fitch, Real Estate Agency, 34, 35; Vandana's Heirs v.. Hopldns’ Adm'r, 19 Am. Dec. 92; Smith v. Allen, 86 Mo. 178; Glass v. Howe, 103 Mo. 535; Minor v. Willoughby, 3 Minn. 225; Groff v. Ramsey, 19 Minn. 44; Jaelcson v. Badger, 35 Minn. 52; Holden v. StarJcs, 159 Mass. 503; Stadlemcm v. Fitzgerald, 14 Neb. 290; Ilopwood v. Oorbin, 63 Iowa, 218;. Pringle v. Spaulding, 53 Barb. 17; Haydoek v. Stow, 40 N. Y. '363, and cases cited; Davidson v. Van Pelt, 15 Wis. 342; Taft v. Kessel, 16 Wis. 274; Davis v. Henderson, 17 Wis. 106; Seaman v. Aseherman, 57 Wis. 555; Pomeroy, Contracts, 115, 116, and note; Story, Agency (9th ed.), § 50; 1 Am. & Eng. Ency. of Law (2d ed.), 1012; 1 Warvelle, Yendors, 211, and note.</p> <p>To the proposition that a general authority to sell real estate includes merely the power to find a purchaser, and that the agent cannot conclude a contract that will be binding upon his principal, they cited Grant v. Ade, 85 Oal. 418, 20 Am. St. Rep. 237; Prentiss v. Helson, 69 Minn. 496; Duffy v. Hobson, 40 Cal. 240, 6 Am. Rep. 617; Walker v. Osgood, 93 Am. Dec. 172, note; Treat v. De Celis, 41 Cal. 202; Armstrong v. Lowe, 76 Cal. 616.</p>

<p>(1, 2) Justices' courts: Appeal: Jurisdiction: Oounterclaim. (3-6) Sales: Evidence: Election of remedies: Warranties: Issues: Special verdict.</p> <p>1. If a justice of the peace has no jurisdiction of the subject matter to render a judgment, the circuit court obtains no jurisdiction by virtue of an appeal from such judgment.</p> <p>2. The interposition of a counterclaim under sec. 3626, Stats. 1898, for an amount in excess of the jurisdiction of the justice, does not oust the justice of jurisdiction, but the counterclaim may properly be stricken out.</p> <p>5. In an action to recover the contract price of a heating plant, when defendant was asked to state its value, the court expressed a doubt as to his competency to give an opinion, he not being shown to be an expert. Thereupon he was asked whether as a heating apparatus it had any value to him, and he replied that it had no value to him for any purpose. Held, that there was no error prejudicial to defendant.</p> <p>4. The statement of a witness who had testified to a conversation in his presence between the parties, that he had been under an impression, at some time, that he heard the plaintiff or the defendant say that a certain sum had been paid on the contract in suit, is too indefinite to render its exclusion error.</p> <p>•5. In an action to recover for a heating plant, where defendant had counterclaimed for the amount he claimed to have paid thereon, ■ he was properly required, at the close of the testimony, to elect whether his claim would be for a breach of warranty or a rescission of the contract.</p> <p>fi. The complaint in such case alleged sale and delivery of a furnace and a certain amount of piping and radiation previously selected and designed by defendant. Defendant, by way of answer and counterclaim, set up an express warranty to heat the house, and a breach thereof. This was denied in the reply. Upon the trial of such issue plaintiff’s evidence tended to show an express refusal to warrant, and the jury found that there was no warranty. Held, that defendant was not in a position to claim error for failure" to submit to the jury the question of an implied warranty of suitableness.</p>

Action for relief for obstructing an old traveled way which plaintiff claimed the right tó use. The action was in equity for a mandatory injunction requiring the removal of the alleged obstructions. Two grounds were alleged as the foundation of plaintiff’s claim: first, that she was the owner of- the right of way by adverse use for more than twenty years; second, that it was a public way in which she had a special interest.

<p> Highways: Sufficiency: Court and jury: Evidence. </p> <p>1. The question whether a highway at the place where an accident occurred was insufficient and unsafe for public travel is always one for the jury unless the conditions and circumstances are so clear and convincing as to leave no room for reasonable controversy.</p> <p>2. In this case the question whether a turnpike eleven feet wide and eighteen inches high with abrupt banks, across which a culvert without guards had been constructed, the traveled track being one and one-half feet from its south end, was insufficient and unsafe, so as to render the town liable for injuries sustained by a traveler whose horse shied at drain pipes piled by the roadside and ran the buggy off the culvert, is held to have been for the jury.</p> <p>3. In such a case evidence of measurements, made more than a year after the accident and after material changes had been made in the turnpike, was properly rejected.</p>

<p> Setoff: Corporations: Suceessioni Written contracts: Oral modification: Pleading. </p> <p>1. Where one corporation has purchased the business of another, a person who purchases goods belonging to the successor corporation cannot, in an action by it for the purchase price, set ofE damages arising from breach of a contract between him and the original corporation, in the absence of evidence that the plaintiff became a party to that contract by assignment or otherwise.</p> <p>3. Where a party has pleaded a written contract and its performance, . he is not entitled to introduce evidence of an oral modification thereof which was not pleaded.</p>

<p>'Conditional sale of standing timber: Reservation of title until payment: Rights of bona fide purchaser: Estoppel: Filing contract: Evidence: Cross-examination: Appeal: Exceptions.</p> <p>1. The vendor of standing timber under a contract reserving title in himself until payment of the purchase price, who contemplated at the time of the sale that his vendees were to manufacture the logs and sell the lumber therefrom, and who so dealt and acted con-' cerning such lumber as to lead an ordinarily prudent man.to believe that his vendees were the’ owners thereof or that they had authority to sell the same and give title thereto, is estopped to assert his reserved title as against purchasers from said vendees who bought and fully paid for the lumber without knowledge of his title or of any facts to put them upon inquiry in reference thereto.</p> <p>3. The original contract of sale in such case, being a contract for the sale of real estate, was not entitled to be filed in the city clerk’s office, and evidence that it was so filed was inadmissible in an action against purchaser’s from the original vendees who are not shown to have had actual knowledge of that fact.</p> <p>8. Where a witness is not a party, cross-examination relating to matters not gone into on the direct examination is properly excluded.</p> <p>4. Refusals to give requested instructions cannot be reviewed on appeal unless exceptions thereto are taken and preserved in the bill of exceptions.</p>

M. Webb, Circuit Judge. Mandamus proceeding to compel the clerk of Joint School District No. 1 of the Towns of Amherst and Lanark to certify to the town clerks of such towns the proper proportions of $60.15 to be raised by taxation of property in said Joint School District No. 1 of said towns, -which sum, it was alleged, had theretofore been lawfully awarded to Joint School District No. 8 of the Towns of Amherst and Scandinavia to 'be paid by said Joint School District No.…

. Appeal from a judgment of the circuit court for Waupaca county:. Ohas. M. Webb, Circuit Judge. On-June 27, 1879, one Andrew Argus and wife deeded the west twenty-four feet of lot 8, block 7, of Millard & Taft’s addition to the city of New London, except the north ten feet thereof, to defendant. On March 29, 1889, the defendant and his wife, by deed with full covenants of warranty, conveyed the entire west twenty-four feet of said lot 8 to Frederick Eckert.

Apvea r. from a judment of the circuit court for Waupaca county: Ohas. M. Webb, Circuit Judge.

<p>EeeoR to review a judgment of the circuit court for "Wood county: Chas. NT. Webb, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Portage county: Ohas. M. Webb, Circuit Judge.</p> <p>This is an action to recover the stum page value of a quantity of timber cut by the defendants. The action was tried by the court, and the facts were not materially in dispute. The plaintiffs owned the N. E. of the S. E. \ of section 6, town 9, range 12, in Forest county, Wisconsin, the same being a fractional quarter section, as it appears upon the .government map, and named “Lot 4.” The defendants cut a quantity of timber upon land which is claimed by the plaintiffs to be a part of said lot 4, but which is claimed by the defendants to be a part of the S. E. £ of the S. E. •£ of «aid section G. Whether the land on which the timber was cut was a part of lot 4, or was a part of the S. E. \ of the S. E. was the question in controversy. There was no dispute as to the amount or value of the timber cut.</p> <p>The court found that the map on page 336, known in the case as “Exhibit I,” is a copy of the original map of section 6, as shown by the United States survey and field notes.</p> <p>The court further found that section 6, as it actually exists upon the ground, is accurately shown by the map on page 337, which is known as “ Exhibit J.”</p> <p>It will be seen that by the government map most of the lake upon the east line of the section is represented to be in ■section 5, whereas in fact most of said lake is in section 6,</p> <p> </p> <p>and it is also some distance north of the location assigned to it in the government map.</p> <p>The court further found that by the report of the United States survey the east quarter post of said section would fall in the lake, and that for that reason no quarter post was-set; that the northeast, northwest, and southeast corners of the section were found, and that the place, for the southwest corner fell in another lake, called Seven Mile Lake; that</p> <p> </p> <p>the west and north quarter posts of the section were found, but that the south quarter post was not found, but that its proper place was determined, and both parties claim it to be in the same place; that the two meander posts upon the east line of the section were found; that the United States survey gives the distance from the southeast corner of the section to the south meander post as 26 chains and 93 links, while by actual measurement said distance is 45 chains and 92 links, and that the distance between the meander posts as given by the United. States survey is 31 chains and 52 links, while in fact the same is 30 chains and 8 links; that the distance .from the north meander post to the north- corner of the section as given is 19 chains and 75 links, while in fact the same is 9 chains and 39 links; that the north and south lines of the section purport to run due east and west; that a due east and west line from the west quarter post would strike the east section line in the lake at a point 47 chains and 5 links north of the southeast corner; that a line running from the west quarter post in a mean course between the north and south section lines would strike the east line of the section south of the lake at a point 1 chain and 46 links south of the meander post, and 44 chains and 46 links north of the southeast corner of the section; that if this last line is the true east and west quarter line, as plaintiffs claim, then the S. E. J- of the S. E. J of the section contains about 44 acres, and lot 4 contains about 36 acres, and the defendants trespassed upon the plaintiffs’ land and cut therefrom timber of the value of $2,132.83, but if the place of the east quarter post is north of the south meander post and in the lake, and if the north corner of the Si E. £ of the S. E. £ should properly be fixed by apportioning to its east side of 46 chains and 10 links, as the defend; ants claim, then the said S. E. J of the S. E. J is 34 chains and 23 links long on the east side' thereof, and contains about 60 acres' of land, and lot 4 contains about 20 acres of land, and the defendants have not trespassed; that by the United States plat and survey the S. E. •£ of the S. E. £ is represented to be a normal 40 acres of land, 20 chains in length on the east side thereof, and the N. E. £ of the S. E. ^ of lot 4 is represented as containing 33.70 acres; that the line claimed by the defendants as the north line of the S. E. £ of the S. E. i is a line marked “ Graham’s Line ” on Exhibit I, and runs at an angle of 16° 20/ from a due east and west line, and to this line the defendants cut, and no further.</p> <p>Upon these facts, the court concluded that the true east and west quarter line of section 6 is a line running east from the west quarter post in a mean course between the north and south lines of the section, and that the plaintiffs should have judgment for the value of the timber cut. Judgment being entered in accordance with these findings for the plaintiffs, the defendants appeal.</p>

<p>(1, 2) Justices’ courts: Notice of appeal: Towns. (3-5) Poor laws: Support of pauper by private person: Inability of municipality: Implied contract.</p> <p>1. Mistakes in a notice of appeal from a judgment rendered in justices court do not render suck notice ineffective if it contains enough , to identify, with reasonable certainty, the judgment, the parties, and the court, and to show that it was made by the party appealing, personalty, or by some person or persons duty authorized, in behalf of such party.</p> <p>2, A notice of appeal from a judgment rendered in justice’s court against a town, signed by three persons with the word “ Supervisor” under the last signature, the signatures and the official designation being so located that if the plural number were used instead of the singular it would clearly indicate that all signed officially, shows with reasonable certainly that it was so signed, where there is no indication in the notice to the contrary.</p> <p>3. There is no legal obligation resting on a municipal corporation to maintain or relieve poor persons in the absence of a statute creating pne, and the court has no power, upon the ground of moral obligations or the equities of any given case, to hold such a corporation liable to a private person who may have relieved or supported a poor person.</p> <p>4. Where the law imposes on a municipality the duty of maintaining poor persons, and designates officers thereof to act in its behalf in the performance of such duty, their mere neglect will not operate as an implied request to a private party to'supply a needy person’s wants, upon which such party can act and hold the municipality liable as upon an implied contract.</p> <p>5. The statute requiring each town in this state to support poor persons in certain cases, and the supervisors thereof to see that such support is furnished, does not permit a private party to aid or relieve such a person at the expense of the town without a contract to that effect, made between him and such supervisors or a majority thereof.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeal from an order of the circuit court for St. Croix county: E. W. Helms, Circuit Judge.</p> <p>This is an appeal from an order sustaining a demurrer to, the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. The conrplaint is of great length, but may be summarized as follows:</p> <p>It first states the corporate character of plaintiff, the-amount of its capital stock, the amount issued, the names of stockholders, and the amount held by each. Alexander Syme-was president and a director. Plaintiff’s business was manufacturing and selling wood products at Glenwood, Wisconsin. The value of its property and assets was $300,000, and its liabilities other than its capital stock were $227,000. On November 1, 1896, and for a considerable time thereafter, the company was embarrassed for want of ready money, and unable to pay its debts as they matured. On and prior to-said date a copartnership was conducting a general'store at Glenwood, known as Johnston, Syme & Baldwin, composed of the following named persons, whose interests in said firm were: James Johnston, three eighths; Alexander Syme, one fourth; IT. J. Baldwin, one fourth; and David Syme, one eighth. The first two named were stockholders in the plaintiff corporation. The value of James Johnston’s interest in said firm was $30,000. The prosperity of said firm depended largely upon the continuation of the business of the plaintiff. The firm dealt with its employees and extended credit to plaintiff during 1896 and early part of 1897 of not less than $30,000. On November 1,1896, plaintiff was indebted to one !I. L. Humphrey, as assignee of Alfred J. Goss, on two notes of $9,000 each, but which had been reduced by payments to the sum of $11,000. Alexander Syme and William and James Johnston were guarantors. At the same time the Johnstons were indebted to Humphrey in a large amount, who held as collateral security for all of said indebtedness, among other things, 427 shares of plaintiff’s stock, and the three-eighths interest of said James Johnston in the firm of Johnston, Syme & Baldwin, which had been pledged by the Johnstons, or one of them, to secure said indebtedness. Humphrey offered to sell the notes of plaintiff, the 427 shares of stock, and the three-eighths interest in said firm for $15,000, then worth in .the aggregate at least $45,000. Alexander Syme purchased the same for $15,000, for himself, without the knowledge or consent of any of plaintiff’s stockholders, knowing that the purchase by plaintiff would be greatly for its interest. To conceal the true character of the transaction, Syme caused the purchase to be made in the name of W. P. Hewitt, who held the same until October 11, 1897, when it was turned over to Syme. The latter took and controlled the three-eighths interest in said firm, and had it until his death, in March, 1898. The firm name was thereafter changed to Syme, Baldwin & Co. No accounting has been had, and, unless otherwise decreed, the surviving partners will pay over the value of said three-eighths interest to Syme’s heirs.</p> <p>In February, 1897, plaintiff was indebted on a note of $18,000 to the Skowhegan Savings Bank, upon which Syme was indorser or guarantor. Without the knowledge or consent of any of the stockholders, or without any effort to purchase the same for plaintiff, Syme purchased the same for $9,000 with his own funds. At the time of the purchase from Humphrey, plaintiff was indebted to Johnston, Sj'me & Baldwin over $30,000. During his lifetime Syme caused plaintiff to pay on said indebtedness $4,006.17, August 10, 1897, and $3,810.12, October 4,1897, at a time when plaintiff was still in need of ready money to pay pressing demands. On October 16,1897, Syme caused plaintiff to execute to him two notes,— one for $11,743.93, and the other for $14,500, — ■ for the indebtedness of plaintiff to the firm of Syme, Baldwin & Co., which were charged to said Syme on their books, and the only right he had thereto was by virtue of his five-eighths interest therein, and at least $20,432.43 of said amount was received by him on account of the three-eighths interest purchased from Humphrey. On October 11, 1897, Syme presented the notes he had purchased from the bank and from Humphrey to plaintiff, and demanded and received a note for the sum of $29,531.18, which note is now held by his heirs. Between August, 1897, and April, 1900, Syme during his lifetime, and his heirs after his death, by using the 427 shares purchased from Humphrey, were enabled to control the election of plaintiff’s officers and the business policy of the corporation. Syme died intestate, holding said claims. Administration was granted on his estate December 22,1898, and the time for presentation of claims expired the first Tuesday of September, 1899. It is alleged that the notice thereof was never published for four successive weeks as required by law, but was published December 29, 1898, and January 5, 12, and 19, 1899. The administrator inventoried the three-eighths interest aforesaid at $20,084.88; said 427 shares of plaintiff’s stock, $8,540; and said three notes of plaintiff, $45,277.52. During the course of administration plaintiff paid the two notes of $11,743.93 and $14,500 to the administrator. Some of the money was used to pay debts of the estate, and the remainder has been distributed to the defendant heirs. Defendants are alleged to have had knowledge of the acts of Syme in the premises.</p> <p>The prayer for relief is for an accounting regarding the three-eighths interest in the aforesaid firm, and a settlement on the theory that plaintiff was entitled to the benefit thereof; also that plaintiff is entitled to the 421 shares of stock, and a surrender of the notes taken in renewal of the ones purchased from Humphrey and the bank, upon allowance of the sum actually paid out by Syme.</p> <p>To the point that an officer of a corporation cannot purchase the obligations of the corporation at a discount and enforce them, at their face, they cited McDonald v. Haughton, 10 N. 0. 393; Hill v. Frazier, 22 Pa. St. 320; Higgins v. Zan-singh, 154 Ill. 301; Bonney v. Tilley, 109 Cal. 346.</p>

<p>Appeal from a judgment of the circuit court'for St. Croix county: E. W. HelMS, Circuit Judge.</p> <p>This action was brought by the plaintiffs, as taxpayers, on behalf of themselves and others, against School District No. 5 of the Town of St. Joseph, in St. Croix county, the individual members of the town board as such, and against Peter Kircher, Michael Dahlke, and Mary Dahlhe. The complaint alleged that on January 3d the district meeting designated a site for a school-house at the center of section 6, and authorized the purchase of the land and building a school-house there; that, in defiance of this instruction, the defendants Michael Dahlke and Mary Dahlke with full knowledge unlawfully sold to the board, for a valuable consideration, a parcel of land in section 5, about half a mile distant, for the purpose of defrauding the taxpayers of the district and defeating the will of the legal voters; that the district board had entered into contract with the defendant Kircher for the building of a school-house on such unlawful site, and that he was proceeding thereto. The relief demanded was the enjoining of all further proceedings, and the rescinding and cancellation of the purchase from the Dahlkes, and return to the district of the consideration paid therefor. Michael Dahlke was one of the district board, to wit, the treasurer, and was joined as defendant in that capacity as well as personally.</p> <p>The district and the district board answered, the defendant Kircher defaulted, and Michael and Mary Dahlke, in their personal capacity, demurred on the ground that the complaint fails to state a cause of action, and for misjoinder of causes of action. Their demurrer was sustained on June 26, 1900. On October 2, 1900, judgment was entered upon stipulation against the defendant school district and in favor of the plaintiffs for costs. On October 20,1900, the defendants Michael and Mary Dahlke moved for judgment in their favor on notice and application showing that no amendment of the complaint had been made, and accordingly judgment was entered in favor of such defendants and against the plaintiffs for $3Y costs, but making no reference to any of the other defendants, to wit, the three members of the school board and the defendant Kircher. From that judgment the plaintiffs appeal.</p>

<p> Fire insurance: Standard policy: Option to rebuild: Valued policy clause. </p> <p>1. The standard policy of fire insurance is a statutory law as well as a contract and should be treated and construed accordingly.</p> <p>2. The standard fire insurance policy provides (sec. 1941-44, Stats. 1898) that the liability of an insurance company thereunder shali be limited to the actual cash value of the property at the time any loss or damage occurs, except when otherwise provided by statute; that such liability shall not exceed the cost of repairing or replacing the property; and that it shall be optional with the insurer to repair, rebuild, or replace the property within a reasonable time by giving notice to that effect. Held, that the insurer has an option to rebuild a building which has been wholly destroyed, notwithstanding the provision of sec. 1943 that the amount written in a policy upon real property which has been wholly destroyed must be taken conclusively to be the true value of the property when insured and the true amount of loss and the measure of damages when destroyed.</p>

<p>Appeal from a judgment of the circuit court for Dunn county: E. W. Helms, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. G-. SiebeckeR, Circuit Judge.</p> <p>Action to recover compensation for loss sustained by plaintiff’s intestate, August Zilmer, through the alleged wrongful conduct of defendant’s servants in running one of its passenger trains in the nighttime at an unlawful rate of speed across a public street in Deerfield, in Dane county, Wisconsin, a duly organized village of such county, without giving any signal of its approach to such crossing by sounding the engine bell or whistle, whereby the intestate, while attempting in the exercise of ordinary care, as claimed, to pass over the crossing, driving a single horse hitched to a light wagon, was injured so severely as to cause his death within a short time after the injury was received. The controverted issues on the pleadings, were, mainly, whether defendant’s servants were guilty of wrongful conduct causing the injury to Zilmer, if so guilty the degree of such guilt,— as to whether it was mere negligence or wilful misconduct, — ■ and whether deceased was guilty of a want of ordinary care that contributed to the fatal result. On the trial the following appeared to be undisputed facts:</p> <p>The place where the accident occurred was on one of the principal streets of the village of Deerfield. The time of the accident was about 10 o’clock p. m. on the 29th day of August, 1895. Zilmer was a farm hand. He had driven into the village with several young girls as companions, in the early part of the evening. About 10 o’clock thereafter he started to return home with his party. The place of starting was from ten to twenty rods from where the accident occurred. The night was clear and not very dark, though there was no moonlight. About as the start was made, the train that caused the accident signaled its approach to the depot, which was near where the accident occurred, by sounding the engine whistle. Such signal was heard by many persons circumstanced no more favorably for that purpose than Zilmer. The train was a regular passenger train, due according to schedule time to pass through the village without stopping, at about the time Zilmer started on his way home. He was well acquainted with the situation of the railway tracks at the point where he was injured. From the place where he started as before stated, till he received his injury, according to all the direct evidence, he drove his horse on a slow trot without making any effort whatever to inform himself as to the approach of a train. As his horse was about to step upon the main track it was struck by the train, which was coming from the east, moving at from twenty to forty miles an hour, and he was fatally injured. The street crossed the railway track at about right angles. From the point where deceased started, to the region of the railway right of way, it was a little down grade. Zilmer’s starting point was south of the railway crossing. There were three tracks. The first one reached was a side-track, located about fifty-two feet from the main track. About midway between such side-track and the main track was a second side-track. From the point where the traveled roadway crossed the first sidetrack, a person could see an approaching train from the east, on the main track, for a distance of about 630 feet. As the train that did the injury approached, it made sufficient noise to attract the attention of persons within a radius of •several hundred feet from the crossing. There was no opportunity, for one circumstanced as Zilmer was, to see the approaching train till he arrived at a point on or just over the first side-track. From that point on, until the main track was reached, a person looking east along the main track ■could see a coming train after it reached a point about 630 feet from the crossing. For that distance there was nothing to obstruct the view. Three young men were approaching the crossing a little' ahead of Zilmer. All of them heard the engine whistle for the station, and the noise of the train a little before it came into sight, and, being on their guard against injury by it, they stopped before reaching the main track to allow it to pass. After they crossed the first side-track and were in the vicinity of the second, they observed the coming train. Zilmer was then just crossing the first side-track. They observed him at that instant, driving towards the main track, apparently regardless of the danger, and called out to acquaint him of the presence thereof. Some person from across the track also called a warning to Zilmer. He did not appear to notice any of the warnings. When nearly opposite the young men, ■one of them stepped towards the horse and called out “ Whoa,” but it was then too late to stop it. If Zilmer ob•served the train at all it was for only an instant before the collision. The appearances were that he was entirely unconscious of the danger till the accident occurred.</p> <p>There was evidence tending to show that the 10:06 p. m. train customarily passed through the village at an unlawful rate of speed, and that there were no rules promulgated by •the defendant inconsistent therewith. Also that if a train were moving at a rate of forty miles an hour there would ■not be sufficient time to stop it from the instant of its reaching a point where a person in the engine cab could observe the track and the vicinity thereof up to the crossing to the-instant when the accident occurred. There was some conflict of evidence as to whether the engine bell was sounded as the train approached the crossing.</p> <p>The following is in substance the testimony of the three-young men before mentioned: William Kroneman said: 11 heard the 10:06 p. m. train whistle just as we crossed the-second side-track. We saw the train coming around the-curve. At that instant I saw Zilmer coming back of us,, and heard Quammen and Howe of our party call to him. The rig was then on the south side-track, coming at the rate-of about six miles an hour. Zilmer did not appear to hear the warning my companions gave to him. lie did not slacken the speed of his horse. The horse was trotting when I first observed him, and continued to trot right up. to the instant the accident occurred.’ Frank Howe said:- ‘ I heard the whistle when I was at the south side-track. We saw the train coming when we were at the middle track, the second side-track. When we were a little further I saw Zilmer crossing the first side-track and I hollered at him. He did not appear to hear me, but, allowed his horse to trot right up to the point where the collision occurred.’ Herman Kruger said: £ I heard the noise of the train when I was a little way over the first side-track. I did not cross, the main track till the train passed. At the time I heard t[ie train Zilmer whs coming about a rod and a half behind me. When the rays “of the headlight showed on the rails of the main track at the crossing, Zilmer wTas still about, a rod behind me and not quite clear of the first side-track. As the horse got about opposite me I took about three steps toward him and said “Whoa.” There was not then time for me to stop the horse, so I stopped myself. The horse-kept right on trotting up to the main track where he was struck by the train.’ All the other direct evidence corrobr orated the three witnesses whose testimony has been given..</p> <p>At the close of the evidence the court granted a motion for a nonsuit upon the ground that the evidence showed conclusively that Zilmer was guilty of contributory negligence. Judgment was thereafter rendered dismissing the complaint and for costs in favor of defendant.</p>

Gf. Siebeokek, Circuit Judge. The purpose of this action is to require the defendant to abate and remove a fence and a sbed alleged to have been placed and maintained within the limits of a public street by defendant, and for a perpetual injunction restraining him from maintaining the same therein in the future. The street in question was alleged to be appurtenant to property owned by plaintiff.

<p>Appeal from a judgment of the circuit court for Sauk county. R. G. Siebeckee, Circuit Judge.</p> <p>This was an action of forcible entry and detainer, the premises being situated, and the defendant resident and served, in the town of La Yalle, in Sauk county. It was commenced before William Miles, called a justice of the peace, and upon affidavit of prejudice it ivas transferred, according to the docket of Miles, to “Horace J. Smith, next nearest justice of the peace of the county.” It appears that both Miles and Smith had been elected to the office of justice of the peace under the charter of the city of Reedsburg as the same was amended in the year 1891, and were there resident. The only question raised is whether the judgment is void by reason of the alleged fact that Smith and Miles were not justices of the peace for the county of Sauk. From judgment of the circuit court affirming the judgment of the justice in favor of the plaintiff, the defendant appeals.</p> <p>To the point that an officer elected for a term of three years could not be a “justice of the peace ” within the meaning of the constitution, and that it must be presumed that the legislature intended, by the amendment of 1891, to create municipal courts with jurisdiction limited to the municipality, they cited Atkins v. Fraker, 32 "Wis. 510; Att?y Gen. v. McDonald, 3 "Wis. 805; Zitske v. Goldberg, 38 "Wis. 216, 234; Jenkins v. Morning, 38 Wis. 197; Mathie ,v. McIntosh, 40 Wis. 120; FaWc v. Goldberg, 45 Wis. 94.</p>

<p>Error to review a judgment of the circuit court for Douglas county: James O’Neill, Judge.</p> <p>The plaintiff in error was convicted of the murder of May Bolz, and sentenced to imprisonment for life, and prosecutes this writ of error to reverse the judgment. The evidence showed that the accused was a young man twenty-five years of age, unmarried, and had been engaged about the railroad business, living in Superior, in what is known as the “ Allouez Bay district,” at the east end of that town; that for about a year and a half prior to October 3,1899, he had been intimate with the deceased, who was an inmate of a house of ill fame in the city of Superior, in the Allouez Bay district, and that they had talked of being married; that the accused was out of work, and contemplated going to West Superior to obtain work in the railroad business, and, if he could not obtain employment there, talked of going West for that purpose; that the deceased knew of his plans with regard to leaving Superior; that the accused stayed with the deceased on the night of October 2d, and on the following day met her at about 2 o’clock in the afternoon at the saloon of one Barry, in the said district, and had some conversation with her about his plans, and whether she would accompany him. This conversation was_ held in a private wine room in the rear of the saloon, and, after it, the deceased came out, and joined some friends in another wine room, and a few minutes afterwards Hughes again called the deceased alone into another wine room, and, immediately after they had passed in, a number of shots were heard, and it was found that the deceased had been shot twice,— once in the right arm and once in the back, the last shot entering the sheath of the spinal cord, completely paralyzing the body from that point down; and that Hughes bad then shot himself four times. The evidence tended further to show that Hughes was accustomed to carry a rusty revolver, and that the deceased knew it, and that Hughes had oiled and loaded the revolver that day; but Hughes claimed upon the trial that the shooting was accidental; that as they passed into the wine room the deceased felt the revolver in his coat pocket, and told him he was careless; and he said, “ There’s nothing in it,” and, not remembering that he had oiled and loaded it, pulled it out, pulled the trigger, and it went off, and she fell back, saying she was dying; and he then said, “ If you are, you will not die alone,” and turned it on himself. The deceased lived until October 11th, when she died, having made an ante-mortem statement on Sunday, October 8th. The plaintiff in error recovered from his wounds. There was little, if any, evidence of ill will between the parties, but some evidence that she refused to go to West Superior with the accused, as he wanted her to do.</p> <p>that if a juror serves upon the regular panel of any court of record within a year, he is absolutely disqualified from serving as a juror in any cause within the same county for one year, the exception being that if he has served during the year as a talesman or on a special venire he is not disqualified from again serving during the same year on the regular panel, or as a talesman, or on a special venire. First Nat. Bank v. Post, 66 Yt. 237. Where a juror positively says that he has an opinion which it will require evidence to remove, he is disqualified by reason of that opinion. Thompson, Trials, § 80; People v. Mather, 4 Wend. 229; Eason v. State, 6 Baxter, 466-476; Oomm. v. Knapp, 9 Pick. 496; Cotton v. State, 31 Miss. 504; White v. Moses, 11 Cal. 68; Fahnestock v. State, 23 Ind. 231; Stephens v. People, 38 Mich. 739; Rothschild v. State, 7 Tex. App. 519; Collins v. People, 48 Ill. 145; Gray v. People, 26 Ill. 344; Ccmcemi v. People, 16 ET. Y. 501; Olive v. State, 11 Eeb. 1; Polla v. State, 45 Ark. 165; Palmer v. State, 42 Qhio St. 596; People v. Thaelaer, 108 Mich. 652; McGuire v. State, IQ Miss. 504; State v. Ramsey, 50 La. Ann. 1339; People v. Wilmarth, 29 App. Div. 612; People v. Fultz, 109 Cal. 258; State v. Rxvtten, 13 Wash. 203; State v. Wilcox, 11 Wash.'215; State v. Murphy, 9 Wash. 204. .</p>

Appeals from- orders of tbe circuit court for Milwaukee county: James J. Dioe, Judge. .

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C.' Lijdwig, Judge.</p> <p>Action in ejectment. The complaint was in the usual form. The answer contained a plea of the twenty-year statute of limitations. Sec. 4207, Stats. 1898. The defense thus pleaded was the one relied upon on the trial. To maintain plaintiff’s case evidence was produced showing jprwna facie record title in itself of a portion of two lots in fractional section 33, township 7, range 22 E., and competent evidence that such portion includes the premises in dispute.</p> <p>The evidence on the part of defendants was to the following effect. In 1812, theretofore, and thereafter, except, as artificially changed, the territory called “Jones Island,1” which includes the premises in controversy, was covered by the waters of Lake Michigan. The water was quite shallow in many places and in others was as much as nine feet deep. A man by the name of Truher, at the time specifically-stated, had a house on the submerged territory, supported in some way in the shallows or resting on a piece of made-land. Just how that was does not cleárly appear. He pretended to exercise dominion over the entire territory, and, so pretending, he prevented any person from locating thereon without his permission. He sold his house and claim of title to one Jacob Muza in 1872, making no paper-transfer of the property, however. There were then about nine settlers on the island. He made a verbal transfer of the house and authorized his grantee thereof to exercise the same control that he had over the entire territory. Muza took possession of the house and such possession of the territory as was practicable under the circumstances, and continuously thereafter asserted dominion over the same, and enforced his claims by preventing any person, from locating thereon without his permission. Evidence was given showing the .precise condition of the territory in 1872, theretofore, and thereafter,' except as artificially-changed, as follows:</p> <p>Muza testified that when Truher gave him the property it was all submerged by water and mud as deep as over his head; that when he gave defendant permission to locate, the particular place allotted to .him was covered by water-so that it was of no use until artificially raised above the-level of the water. A witness, Jones, testified that the entire territory was covered by water in 1855; that sail 'and fishing boats used to go right through what is now the center of the island; that it was all submerged with water, but that it was deeper sometimes than at others. One Zelin testified that the premises claimed by defendant, before they were filled, were covered with water from four to eight feet deep; that defendant was three or four years filling up the property, and that some paft of the territory is still covered by water. Witness Kunka testified that he built a house on the island, by permission of Muza, in 1872; that he bought thirty feet from Muza’s house; that the'whole territory was then covered with water from four to ten feet deep; that it was all marsh and water till filled. Defendant testifies that Muza pointed out to him the place which he might occupy, and that he commenced filling up some thirteen years before the commencement of the action; that when he commenced to make the fill it was all covered with water to a depth of several feet; that he got a small piece of filled territory of one Zelin, and that he worked out from that in filling what Muza permitted him to occupy; that he commenced filling his lot as soon as he got permission from Muza, and soon after built a house thereon, which he occupied thereafter all of the time down to the commencement of the action.</p> <p>At the close of the evidence the court directed- a verdict in plaintiff’s favor in accordance with the prayer of the complaint. A judgment was accordingly entered establishing title in fee to the property in plaintiff, with all the incidents of such a title, and according to the statute in such cases.</p> <p>To the point that adverse possession was not established, they cited St. Croix L. & L. Co. v. Ritehie, 78 Wis. 492; Ta/ylor v. Rountree, 28 Wis. 391; Ladd v. Hildebramt, 27 Wis. 135; Austin v. Holt, 32 Wis. 478; Mission of the I. V. v. Cronin, 143 N. T. 524; Wheeler v. Sainóla, 54 N. Y. 377; Thompson v. Burhans, 61 N. Y. 52; Miller v. Long Island R. Co. 71 N. Y. 380; Thompson v. Burhans, 79 N. Y. 93; Anderson, Law Diet. Impeove and ImprovedLaNds; Cent. Diet.; Bartlett, Diet, of Americanisms, 309, 310; Webst. Diet.; 10 Am. & Eng. Ency. of Law, 241, 242; Ross v. Smith, 1 Barn. & Adol. 911; Cla/rk v. Phelps, 4' Cow. 190; Newell, Ejectment, 697, sec. 1; id. 707, sec. 10; id. 715, 716, sec. 20; Wood, Limitations, §§ 257-259; Price v. Brown, 101 N. Y. 669; Ely v. Brown, 183 Ill. 525; Roberts v. Baumgarten, 1Í0 N. Y. 380; Roe v. Strong, 119 N. Y. 322; Jaclcson v. Wood-ruff, 1 Cow. 277; Jaeleson v. Schoonmdker, 2 Johns. 230; Barr v. Potter, 57 Ky. 478.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig-, Judge.</p> <p>Action in ejectment. The issue in this case is the same, though different property is involved, as that in Illinois 8. Co. v. Bilot, ante, p. 418. Plaintiff proved grima facie record title to territory including such property. The evidence on the part of defendants is to the effect that the territory of which the premises in dispute form a part is called “Jones Island; ” that it was originally a sand flat, created by the movement of the waters of Lake Michigan, and was submerged by water from three to nine feet deep; that it was made feasible to construct buildings thereon by artificial filling.</p> <p>The evidence was further to the following effect: In 1872 some nine families resided on the territory called “ J ones Island.” It was then all covered by water. One Trnher owned one of the houses and claimed dominion over the entire territory. At the time stated Truher surrendered his house and his claim of dominion over the entire territory to Jacob Muza, who immediately took possession of such house. Truher did riot pretend to sell to Muza the houses occupied by the other persons located on the island, but pretended to surrender to him dominion over the entire island. There was some kind of a paper transfer by Truher to Muza of the bouse itself, but the paper has been lost. Whether such paper referred to any part of the territory aside from that 'Occupied by the house, or anything but the house, does not ■clearly appear. From the time of the transaction related, between Muza and Truher, the former prohibited any person from exercising any act of ownership or from occupying any part of the territory except by his express permission. He exercised acts of ownership over the entire territory by preventing other persons from coming thereon as stated, and by building breakwaters to control the action of the water of Lake Michigan and prevent it from impairing the use of the premises for dwelling-house purposes, and by otherwise improving the territory for such purposes. From time to time he permitted persons to select portions of the submerged territory, to fill up the same, and locate houses thereon. There was no fence on any part of the territory when Muza located there, and no place to build a house except as made by artificial filling. About 1873 Muza pointed out to one John Zelin the territory in question as a place that he might fill up and occupy, receiving therefor a keg of beer. Zelin filled the territory allotted to him so as to make a foundation for his house above the level of the water, and constructed it thereon. He used the property continuously thereafter till about 1893. It was then, and had been for a long time prior thereto, inclosed by a fence, and in addition to the house originally built there were then a barn upon the property and some other improvements. In 1893, he sold the property to Joseph Konkel, who went into possession immediately upon Zelin vacating. Soon thereafter Konkel sold the property to defendants, delivering possession thereof to them, and they thereafter occupied it continuously down to the time, of the commencement of this ■action.</p> <p>At the close of the evidence the court directed-a verdict for plaintiff. Judgment was rendered .upon such verdict,. •establishing title in fee to the property in plaintiff, and •otherwise the judgment was rendered in accordance- with •the statute in such cases.</p>

<p>Promissory notes: Indorsement: Delivery in blank to maker: Alteration.Forgery: Ratification: Notice to payee.</p> <p>1. Where one person indorses his name upon the back of a blank promissory note and delivers it to another for the accommodation of the latter, to be used in a certain way, and the latter makes material alterations therein and uses it for a different purpose, the indorser will be liable thereon, if, knowing the facts as to the alteration and negotiation of the note, he acknowledges it and promises to pay it, even though such alterations constitute in law a forgery.</p> <p>[2. Whether the payee of a note bearing the indorsement of a third: person is put upon inquiry as to the maker’s authority to use it, by obliteration of the words “ after date ” and “ or order ” from the printed form and the substitution of others in their place, doubted, but not determined.]</p>

Williams, Judge. Action by plaintiff, who, on March 10, 1898, when fourteen years and eight months of age, suffered loss of a hand as an employee of defendant in its factory at Milwaukee, while working at a device called a “slat saw,” which, so far as possible in words, may be described as follows: The east or operating part consisted of a flat plane or feed table, twenty-eight inches.long north and south, and four inches wide, bounded on the west by a rigid vertical side…

C. Ludwig, Judge. Action for damages. The facts stated in the complaint are substantially as follows: John, A. Martens zxAWilliam JBeehsiein, in the fall of 1896, relying on representations made by defendant Mary J. O’Connor and corroborated by her attorney, as to her legal rights, leased of her certain lands in the city of Milwaukee, describing the same, for the term of five years at the yearly rental of $200 and the taxes, paying $100 down upon the lease.

The plaintiffs, who are. grain commission merchants in the city of Milwaukee, brought this action against the defendant to recover upon open account for moneys advanced and services performed for the defendant in July and August, 1897. The account is set forth in the complaint as follows: E. C. Collins, in account with Leman Bartlett & Son, Dr. August 19th, 1897. To 2,000 bu. wheat at $.89J-. §1,782 50 “ To commission. 2 50 Total.T. §1,785 00 Credit. July 30th, 1897.

Appeals from a judgment of the circuit court for Wood county: O. B. Wyman, Judge.

Repoeted from tbe circuit court for Brown county: S. D. HastiNgs, Je., Circuit Judge. To the point that sec. 8, Stats. 1898, is unconstitutional, they cited Dougan y. State, 30 Ark. 41; Buckrice v. People-, 110 Ill. 29; State v. McGraw, 87 Mo. 161; In re McDonald, 19 Mo. App. 370; State v. Hatch, 91 Mo. 568; State v. Smiley, 98 Mo. 605; Armstrong v. State, 1 Coldw. 338; Oraig v. State, 3 Heisk. 227; State v. Lowe, 21 W. Ya. 782, 45 Am.

G. Siebeoiíee, Circuit Judge. Action to recover for supporting John and Annie Bahn, paupers, who had a legal settlement in defendant town, but went therefrom to the town of Almond, in plaintiff county, in October, 1896, and within a few days thereafter required relief there at public expense, and received it.

Gf. Siebeokee, Circuit Judge. This is an action to recover the balance due upon an account for merchandise sold defendant between December 21, 1885, and April 23, 1894.

<p>Waters: Lakes: Purpresture: Removal at suit of attorney general: Nuisance: Riparian rights: Railroads: Conveyance of land in fee: Ultra vires.</p> <p>1. A structure built upon the bed of a lake, not in aid of navigation, such as a building in which to store and repair boats, is a pur-presture.</p> <p>2. A pier may lawfully be built by a riparian owner in aid of navigation, through shoal water to navigable water; but if built by one not a riparian owner it is a purpresture.</p> <p>3. Where the owner of a lot bordering on a lake conveys the lake end thereof, including the shore, to a railway company in fee simple, he ceases to be a riparian owner. Even if the company has no power to acquire a fee in its right of way, but only an easement, yet the conveyance of the fee to it transfers the title and is valid until assailed1 in a direct proceeding by the government.</p> <p>4; A mere purpresture is liable to abatement in a suit in equity by the attorney general, though it is not a public nuisance.</p> <p>5. In an action to compel the removal of a boat house and pier in a lake, the attorney general filed a complaint which sought enforcement of the rights of the state and the private rights of the relator, an alleged riparian owner, as well. The proofs showed that the structures were purprestures though not a public nuisance, but showed that the relator was not a riparian owner and suffered no private injury. The attorney general did not appear in court on the trial, but made no attempt to withdraw the complaint or discontinue the action. Held, that judgment requiring the removal of the purprestures should have been rendered.</p>

<p>(1) Special verdict: Undisputed facts. (3, 4) Res adjudicata: Several grounds of decision. (2, 5, 6) Sales: Breach of warranty: Notice: Waiver: Evidence.</p> <p>1. Where an essential fact is established by the undisputed evidence, a failure to include a finding in respect thereto in the special verdict is not prejudicial error.</p> <p>2. A contract of sale of a traction engine provided that the vendee should give written notice of any failure of the machine to satisfy the warranty, to the vendor and also to the agent from whom it was received; that notice to either alone should not be sufficient; and that no agent should have power to waive any of the conditions of the contract. In an action by the vendee for breach of warranty, a failure to show that such notice was given to the agent from whom the machine was received is held fatal to a recovery, although the notice was given to an agent higher in authority and to the vendor.</p> <p>3. Where the notice given in such a case was, on a former appeal, held insufficient as a matter of law, that decision was binding upon a second trial, the evidence being the same.</p> <p>4 Every point in or assumed to be in a case, and considered and decided as a basis for the final conclusion reached, is as much res adjudi-cata as if it were the sole point in controversy and the only one upon which judgment could rest.</p> <p>5. If the vendor of a machine acts in respect to remedying defects therein without the notice which the contract of sale calls for, such conduct waives the giving of any notice other than that upon which it is based; but the mere fact that an agent of the vendor visited the machine and attempted to make it work properly, after an insufficient notice had been given, without proof that he was sent by the vendor or that the vendor had knowledge of his conduct, does not show a waiver of the required notice, especially where the contract provides that no agent shall have power to waive any of its provisions.</p> <p>6. In an action for breach of warranty that a traction engine sold to plaintiff was “ capable of doing as much and as well as other machines of like size and proportions,” the admission of evidence and submission of the case to the jury on the theory that the warranty covered a fault in the size of the boiler, in that it was not large enough to enable the machine to develop as much power as other machines of the same nominal horse power, was error.</p>

Proceedings to obtain damages to property claimed to have been overflowed by defendant’s dam. By ch. 235, Laws of 1889, the privilege of erecting a dam across the Wolf river* near the city of Shawano, was granted to O. M. Upham and others for “ manufacturing and other purposes.” Said ¡Darties or their assigns were given power to secure flowage rights under sec. 1777, R. S. 1878, as amended by ch. 318, Laws of 1882.

<p> Pleading: Joinder of causes of action: Contracts: Nature of lien action: Judgment. </p> <p>1. A cause of action to recover for work done by plaintiffs under a contract with defendants for the sawing of logs, and to enforce a lien therefor upon lumber so sawed and still in the ownership of the defendants, is a cause of action upon contract, and, under sec. 2647, Stats. 1898, may be joined with a cause of action to recover for a breach of a provision in the same contract by which defendants agreed to furnish a certain quantity of logs to be sawed. Remarks in Collins v. Cowan, 52 Wis. 634, and Shafer v. Hogue, 70 Wis. 392, as to the nature of lien actions; limited, and the cases distinguished.</p> <p>2. Judgment in plaintiffs’ favor in such a case should provide for a recovery of the entire amount of the liability, and direct enforcement of the lien for such portion only as was properly lienable.</p>

<p> Sale of horses: Warranty of soundness: Breach: Undeveloped disease: Expert testimony: Veterinary surgeons: Special damages: Verdict: Remission: New trial: Error in instructions: Exceptions. </p> <p>1. Under sec. 1492/,, Stats. 1898, as amended by ch. 82, Laws of 1899 (providing that no person shall be competent to testify as an expert in matters pertaining to the diseases of animals unless lie is registered as therein prescribed), the statement of a witness that he had been a veterinary surgeon in a certain place in the state for forty years is held insufficient to qualify him as a veterinary expert.</p> <p>2. If at the time of the delivery of horses to a purchaser they had contracted the distemper, although the disease did not develop until after they came into his possession, they were unsound within the meaning of a warranty of soundness.</p> <p>8. In such a case the purchaser may recover for loss occasioned by the distemper being communicated to his own horses by those purchased, if special damages'in that respect are properly pleaded and proven, but loss occasioned by the interruption of the purchaser’s business due to the sickness of those horses, is not a proper element of damages, in the absence of allegations of special damage in that respect.</p> <p>4 Where the jury were erroneously allowed to include in their verdict damages for such interruption of business, and the amount awarded therefor was not specified, the error cannot be cured by allowing plaintiff to remit a portion of the verdict.</p> <p>o. If a trial judge has committed error in instructing the jury, he may grant a motion for a new trial on that ground even though no exception was taken to any portion of the charge.</p>

This is an action in equity to obtain a perpetual injunction restraining the city from erecting a trestle work and water tank on a twelve-foot strip of land in the city of Appleton, which the plaintiff claims to own.

<p>Appeal from an order of the circuit court for Langlade county: Jorra Goodlaud, Circuit Judge.</p> <p>Action for money had' and received, the following facts being stated in the complaint as constituting plaintiff’s cause of action, formal parts omitted:</p> <p>On June 18, 1894, the chairman and cleric of the defendant town, for the purpose of obtaining for it from Frances E. Babcock a loan of $3,000, represented to her that they were duly authorized by such town to obtain such a loan on five years time at eight pen cent, interest per annum payable annually, and that the money when obtained would be used for proper and legitimate town purposes. Said Frances E. Babcock believed such representations to accord with the truth, and, relying thereon, loaned $3,000 to defendant, and delivered the same to the chairman of its board of supervisors. Thereafter such chairman turned the money over to the town treasurer and it became a part of the public money of the town. Thereafter such money was used for legitimate town purposes, so that defendant had the full benefit'thereof. The chairman and clerk of defendant agreed in its behalf that the money should be repaid at the end of five ■years from June 18, 1894, with interest at the rate of eight per cent, per annum payable annually. Defendant has neglected and refused to pay said loan, or any part thereof, or the interest thereon except interest to June 18, 1896, and $49:04 of the interest due July 6, 1897. The town has repeatedly ratified such loan and the use thereof. Prior to June 18, 1899, the county of which defendant is a part, pursuant to action taken by its county board, paid defendant •$928 to be used in discharge of said loan so far as the same would go for that purpose. Instead of its being so used, it was diverted from the purpose intended, but was used for legitimate town purposes, so that defendant had the full benefit thereof.</p> <p>Before March 24, 1900, the claim against defendant on account of the facts stated was for value duly assigned to plaintiff, who is the owner and holder thereof. After such assignment, plaintiff duly filed a verified claim with the defendant, to be placed before its auditing board as required by law. Thereafter an annual town meeting of the town was held, and more than ten days elapsed subsequent to such meeting before the commencement of this action. Favorable action as to plaintiff’s claim was neither taken by the board of audit of the town nor the electors at such town meeting.</p> <p>The defendant demurred on the ground that the facts stated were insufficient to constitute a cause of action. The demurrer was overruled. This appeal is from the order entered on such decision.</p> <p>They contended, inter «Zi«,that the complaint states no cause of action. There is no allegation that provision has been made for the payment of this debt as required by sec. 3, art. XI, Const. This constitutional prohibition is as effectual against an implied as against an express promise. The complaint does not state facts and circumstances which would authorize the town to make an express promise to repay the money, and if the town could not bind itself by an express promise the law will raise no implied promise. If a recovery can be had in this action, the restrictions imposed by the statute and by the constitution are practically of no avail and may.be wholly disregarded by the town officers, and any one having money to loan may simply pay the same into the treasury of the town and recover it back with interest when he sees fit. A case is not stated where the municipality has power to borrow money, for the reason that the existence of circumstances that will authorize a town to borrow money are unusual, and there is no presumption that they exist. See 1 Beach, Pub. Corp. §§ 216-221, 240-251; Thomas v. Richmond, 12 Wall. 349; McDonald v. New York, 68 N. Y. 23, 23 Am. Rep. 144, and cases cited; Newbery v. Fox, 37 Minn. 141, 5 Am. St. Rep. 830; Mayor v. Ray, 19 Wall. 468; Brady v. New York, 20 N. Y. 312; Hague v. Philadelphia, 48 Pa. St. 527; Nash v. St. Paul, 8 Minn. 172; Covington é¡ M. R. Go. v. Athens, 85 Ca. 367; Burchfield v. New Orleans, 42 La. Ann. 235; Bens' v. Grand Rapids, 73 Mich. 237; Bogart v.Lamotte, 79 Mich. 294; Sutro v. Pettit, 74 Cal. 332, 5 Am. St. Rep. 442; 1 Dillon, Mun. Corp. § 457; Cooley, Const. Lira. (6th ed.), 261; Agawam Nat. Bank v. South Hadley, 128 Mass. 503; Olark v: Des Moines, 19 Iowa, 199; Baltimore v. Musgrave, 48 Md. 272; Hodges v. Buffalo, 2 Denio, 110; Martin v. Brooldyn, 1 Hill, 545; Boom v. Utica, 2 Barb. 104;, Albany v. GunGff, 2 N. Y. 165; Dill v. Wareham, 7 Met. 438; Stetson v. Hemp-ton, 7 Am. Dec. 145; Lowell F. O. S. Bank v. Winchester, 8 Allen, 109; Litchfield v. Ballou, 114 U. S. 190; Marsh v. Fulton Go. 10 Wall. 676; Donovan v. New York, 33 N. Y. 291.</p> <p>to the point that the money was paid into the town treasury in good faith and used for town purposes, and the law imposes an obligation, on the town to do justice, cited Paul v. Henosha, 22 Wis. 266; Beach, Pub. Corp. §§ 222, 226, and cases cited; Maher v. Ghicago, 38 Ill. -266; Argenti v. San Francisco, 16 Cal. 256; Tiedeman, Mun. Corp. § 164, and cases cited; Norton v. Rock Go. 13 Wis. 613; 1 Diboi, Mun. Corp. (4th ed.), §§ 459, 460; Goodall v. Milwaukee, 5 Wis. 32; Marsh v. Fulton Co. 10 Wall. 676; Waits v. Ormsby Go. 1 Nev. 370; Henderson v. Sibley Go. 28 Minn. 515; Chapman v. Douglas Go. 107 U. S. 348; Morville v. Am. T. Soe. 123 Mass. 129; Clark v. Saline Go. Gomm’rs, 9 Neb. 516; Pimental v. San Frcmeisco, 21 Cal. 3'62; Framkfort B. Go. v. Frcmkfort, 18 B. Mon. 41; State Board of Education v. Aberdeen, 56 Miss. 518; Dill v. Ware-ham, 7 Met. 438; Peedv. McOra/ry, 94 Ga. 487; Louisiana v. Wood, 102 U. S. 294; Bank of U. S. v. Da/nd/ridge, 12 "Wheat. 74; Hiteheoek v. Galveston, 96 U. S. 341; Gassettv. Andover, 21 Yt. 342; Scofield v. Gouncil Bluffs, 68 Iowa, 695; Polk Go. S. Bank v. State, 69 Iowa, 24; Abbot v. Sermon, 7 Me. 118; Cullen v. Oarthage, 103 Ind. 196; State Board of Agriculture v. Citizens St. P. Go. 47 Ind. 407; Brown v. Atchison, 39 Kan. 37; Sangamon Co. Super's v. Springfield, 63 Ill. 66; .Smith v. Barron Go. 44 Wis. 686; 7 Am. & Eng. Ency. of Law (2d ed.), 946, and note 5.</p>

This is an action of ejectment to recover possession of two small tracts of land,— one on the south side of the S. E. of the N. E. of section 16, town 19, range 21 E., commencing at the southeast corner and running west 9.99 chains, and being .26 chains wide at the west end and .40 chains wide at the east end. The other is a strip of land somewhat irregular in shape, on the south side of the N. W. \ of the N. E. £ of the same section.

Fish, Judge. . Suit by plaintiff, who is administratrix and widow of William EL Kramer, deceased, to recover damages for his death, resulting January 17, 1899, on the explosion of a steam boiler, the property of, and in the flouring mills of, the defendants. The plaintiff’s evidence disclosed that the deceased at the time of his death was thirty-three years of age; that up to about nine years before he had been a farmer.

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

This is an action in equity, brought by the city to compel the remowal of obstructions from an alleged highway and ' to enjoin any further- obstruction thereof. The defendant in his answer denies the existence of any highway at the place in question. The evidence upon the trial showed that the defendant is the owner of the N. E. £ of the S. E. jr and the N. W. \ of the S. E. J of section Y, and that such land .is within the limits of the city of Ohvppewa Falls.

<p>Appeal from a judgment of the circuit court for Douglas county: James O’Neill, Judge.</p> <p>Action to recover a balance said to be due plaintiff from defendant for services rendered as a fireman. The cause was tried by the court. The evidence disclosed, without dispute, the following:</p> <p>Erom 1893 to May 1, 1897, plaintiff was a fireman for defendant city, by appointment by the common council thereof. In February, 1896, such council passed an ordinance in form fixing the salaries of all officers and employees of the city for the ensuing year, that of plaintiff being named at $65-per month. September 29, 1896, the council, by resolution, determined to reduce the compensation of the employees in the police and fire departments of the city and to decrease the monthly pay roll of the fire department to $1,500 per month, either by reducing the rate of wages or the number of employees, or both. When the resolution was adopted, and as a part of the proceedings, the mayor of the city was requested to call before him all the men on the police force and in the fire department of the city and acquaint them with the nature of the resolution reducing their compensation and to request them to sign an agreement providing that in consideration of their further employment they-would accept as full compensation for future' services the wages fixed in accordance with said resolution. September 30, 1896, pursuant to such determination and request, the-mayor called before him the policemen and firemen of the city, at which time plaintiff signed the following agreement:</p> <p>“Whereas, the city of Superior, owing to the lack of money in its treasury, has found it necessary to curtail and lessen its expenses and for that purpose the common council of said city has, by resolution, passed September 29th, 1896, •provided, among other things, that the monthly pay roll of the fire department of said city be reduced to $1,500 per month, said reduction to be effected by reducing the number of men employed in said department or the rate of wages paid, or both, and desiring to be continued in the employ of said city in said department; now, therefore, the undersigned severally and each for himself proposes and offers that in consideration of being retained in the service of said city in said department, I will accept and receive as full compensation, for such services from and after October 1st, 1896, per month the sum set opposite my respective name. It being understood that my acceptance of the reduced rate of wages as herein provided does not insure my continued retention in such service or in any way affect the right of the mayor of said city to discharge me at any time.”</p> <p>The sum set opposite plaintiff’s name was $42. Thereafter from and inclusive of October, 1896, to and inclusive of February, 1897, he received $42 per month, and for the two following months $60 per month.</p> <p>On such facts the trial court decided that, notwithstanding the charter of the defendant required the common coun-•oil, in the month of March each year, to fix the amount of ■salary incident to every city salaried office, whether elective or appointive, for the ensuing year, and prohibited such •council from changing any salary so fixed for such year, plaintiff was not entitled to recover more than the amount he had received, because he was not an officer within the meaning of the charter, but was a mere employee; that his salary was legally reduced by the action of the common •council on the 29th day of September, 1899; that he had no fixed term of office, and was subject to be discharged at the pleasure of the mayor, and that by signing and fully executing the agreement to receive $42 per month for his services as full compensation therefor, he was estopped from claiming any additional amount. Judgment was rendered pursuant to such decision, dismissing the action, and for costs in favor of defendant.</p>

<p> Supreme court: Original jurisdiction, when exercised. </p> <p>1. “ The original jurisdiction of the supreme court extends to all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people.”</p> <p>2. If any given case satisfies the test above indicated, the court may exercise its jurisdiction or not as it sees fit, where the circuit court has concurrent jurisdiction.</p> <p>3. In a case falling within the original jurisdiction of the court, the general rule is not to exercise it where the primary right to be vindicated is of a private nature, though the question involved is publici juris, and even though a state officer is a party.</p> <p>4. No departure from the general rule indicated will be made unless the circumstances are of such an extraordinary character that adequate relief cannot he obtained by first resorting to the jurisdiction of the circuit court. Mere delay, or even irreparable loss to a private person, will not necessarily be deemed sufficient.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeal from a judgment of the superior court of Douglas county: Chaeles SMITH, Judge.</p> <p>Plaintiff commenced an action .in the municipal court against the defendant Anderson, and summoned Viator Lin-ley as garnishee. The latter answered that he was an attorney, and that he had. in his possession, belonging to defendant, thirteen notes, and a mortgage to secure them on certain real estate, which were placed in his hands to bring a suit to reform the mortgage, and to collect the notes as they became due; that in pursuance of his retainer, and before the service of the garnishee process, he had performed work reasonably worth $25,- and since such service he had commenced a suit to reform said mortgage, and that his services in that respect were worth $25, and he had incurred expenses in connection therewith amounting to $5; that he claimed a lien for such services upon said papers, and for the further sum of $10 for .other services rendered for defendant; that the continued possession of said papers was necessary to carry out the purposes of his employment and until its purposes were attained, and he claimed the right to retain the possession thereof pursuant to his employment and for the protection of his lien. No issue was taken upon such answer. Thereafter the municipal judge made an order requiring the garnishee to deliver such papers to him within ten days. The garnishee appealed therefrom to the superior court, where the case was heard on the original papers. Judgment was entered reversing the order of the municipal court and discharging the garnishee from liability. Erom that judgment plaintiff has brought this appeal.</p>

J. YiNje, Circuit Judge. The complaint in this action, verified in October, 1899, set forth the making of a land contract from the plaintiff John, G. Allen to the defendant Gust Carlson in May, 1892, for the sale of eighty acres of land, at the’ price of $680, payable $120 cash, and $140 and interest on the 1st of each January thereafter, of which a total of $279.60 had been paid on and prior to December 29, 1892; that the defendant Carlson had improved the land only to the…

<p> Service by publication,: Affidavit: Time of making: Jurisdiction: Mailing prior, to order: Judgment by default: Proof of service: Waiver of lack of jurisdiction: Appeal: Undertaking. </p> <p>1. Where service of summons was attempted to be made by publication, the fact that the order for publication was not made until twenty-five days after the making of the affidavit therefor shows, that the court was without jurisdiction.</p> <p>2. In order that the court may acquire jurisdiction by the service of ■ summons by publication under secs. 2639, 2640, Stats. 1898, copies of the summons and complaint must be mailed to the defendants in pursuance of the order of the court, and a mailing before the order was made is insufficient.</p> <p>3. A judgment by default should not be entered without proof of the service of the summons being of record.</p> <p>4. Want of jurisdiction to enter a judgment by default is not waived by the appearance of defendant solely for the purpose of appealing.</p> <p>5. An undertaking on appeal from a judgment of foreclosure is held sufficient to give this court jurisdiction, although the plaintiff’s name was omitted from the blank for the respondent, and the wi'ong defendant was named as mortgagor; and appellant was • allowed, on the argument in this court, to 'file an amended undertaking.</p>

<p>11) Appeal: Record: Exceptions. (3) Municipal corporations: Contracts for improvements: Abandonment: Completion of worhby city: Off-</p> <p>1. A recital in a bill of exceptions that the court “ filed its findings and conclusions of law, to which findings and conclusions of law the plaintiff has filed his several exceptions which are made part of the record,” is held insufficient to identify and incorporate into the bill of exceptions a paper purporting to contain exceptions to said ■findings, which was filed with the clerk and returned with the record but was not actually inserted in the bill.</p> <p>3. A contract with a city to construct certain improvements for specified amounts provided that payments should be made on estimates as the work progressed; that the work should be completed at speci-fled dates; that liquidated damages at a fixed sum per day should be paid in case of noncompletion at such times; and that in case the work was not prosecuted with diligence the city might complete the same or relet it and charge the cost to the contractors. The contractors, after prosecuting the work for a time, abandoned it, certain sums being still owing them for work actually done. The city thereupon completed the work, necessarily expending certain sums in excess of the contract price, the aggregate of which was greater than the amount due the contractors. Held, that such sums, as well as the liquidated damages for noncompletion of the-work, were proper offsets against the claim of the contractors.</p>

<p>Appeals from judgments of the circuit court for Douglas county; A. J. Viitje, Circuit Judge.</p> <p>A main and two garnishee actions. The main action was to recover on a promissory note of $200. Defendant Elliott pleaded that the debt, as to him, had been discharged in bankruptcy proceedings prior to the commencement of the action.- The three actions were submitted to the court for determination at the same time, on a stipulation of facts of which the following; is the substance:</p> <p>The first garnishee action was commenced March 8,1898. The Northwestern Coal Railway Company answered, disclosing an indebtedness to defendant-Elliott of $57.50 for wages earned in February, 1898, and $17.50 for wages earned in March, 1898, up to the time of the commencement of the garnishee proceedings, and claiming that such indebtedness was exempt as Elliott's wages, he having a family dependent upon him for support. A second'gar: nishee action was commenced December 9,1898. The garnishee answered disclosing indebtedness to Elliott of $72.10 as wages earned in November, 1898, and $24.60 as wages earned in December up to the time of the garnishment. Issue was taken by plaintiff on the answer of the garnishee in each case. December 29,1898, Elliott was'adjudged a bankrupt in the United States district court for the "Western district of Wisconsin. The indebtedness sought to be recovered in the main action, at the time of the commencement thereof, was due plaintiff as alleged in the complaint, and no part thereof had been paid, but Elliott was subsequently discharged therefrom in the bankruptcy proceedings. An order was entered in such proceedings, upon objection made to the discharge of Elliott, authorizing the trustee therein, George E. Dietrich, to prosecute the garnishee action, commenced by plaintiff, for the benefit of the bankrupt’s estate. February 17,1899, in the bankruptcy proceedings, there was duly ' set apart for Elliott, as -exempt property, his wages prior to March 8, 1898, ainounting to $71.89, held by the garnishee, and also $45.23 earned by Elliott and held by the garnishee in the second garnishee action, said amounts representing the balance of the bankrupt’s earnings of $60 per month for three months before the dates of the respective garnishments, and not exceeding $180 in all for each of the garnishments. The amount earned by Elliott for the three months preceding the first garnishment was $183.11, and for the three months-preceding the second garnishment $231.67. The amount left after deducting $180 for each three months is $54.78. The sum of $96.90 represents the amount earned by the bankrupt, held by the garnishee at the time of the second garnishment, December 9, 1898. November 1,1898, an order was drawn on the garnishee by defendant John E. A. Elliott requesting payment of his wages for November to James T. Elliott, which said order was accepted by the garnishee November 2, 1898. December 10, 1898, $72.10 was paid upon said order. Thereafter James T. Elliott paid to defendant Elliott $50. James T. Elliott is a creditor of defendant Elliott and is represented in the bankruptcy proceedings. No part of Elliott's earnings, mentioned as held by the garnishee, has been paid to the trustee in bankruptcy or paid into court. Defendant Elliott is an unmarried man, but has a family dependent upon him for support. He is entitled to $60 per month as exempt under the statute. No judgment has been entered in this action against either of the defendants.</p> <p>A bill of exceptions in each case shows that on the pleadings and the stipulation of facts motions were made by the plaintiff, in each of the garnishee cases, for an order making the trustee in bankruptcy a party to represent the estate. A motion was also made in the main action for a special judgment against Elliott, one not recognizing the existence of any personal liability but enforceable against the credits in the hands of the garnishee. The motions were denied, and due exception was taken to each ruling. A motion was made on behalf of defendant Elliott for a dismissal of the main action as to him, and a motion was also made in each of the garnishee actions to dismiss the same. All of such motions were granted, due exception to each ruling being taken. Judgment was thereupon entered in the main action, and subsequently costs were taxed and inserted therein, the amount being $24.63. Papers are in the.record on the appeal in such action, relating to subsequent proceedings as to costs, but they all relate to proceedings in the garnisbee actions. Judgment was entered in tbe first garnishee action dismissing the same and in form for costs in favor of Elliott and the garnishee jointly. Two cost bills were presented to the taxing officers and were taxed, one in favor of the garnishee defendant for $23.53, and one in favor of the defendant Elliott and the garnishee for $31.23. Only the smaller cost bill as taxed was entered in the judgment. Objection was made before the taxing officer to the taxation of any costs, also to the following items Avhich were allowed by the clerk: $3 for attending trial'; 50 cents for sheriff’s fees on serving the summons. There was a further objection to the taxation of any costs in favor of the garnishee because, the answer being made under sec. 2760, Stats. 1898, admitting a liability, the only costs allowable to the garnishee were $3. The rulings of the clerk were duly presented to the circuit court for consideration on a motion for a review of the taxation of costs, and the motion was denied. A motion was made after judgment, for an order setting the same aside and granting a new trial, which was denied, but the appeal was taken from the judgment only.</p> <p>In the second garnishee action, judgment ivas rendered in form for costs in favor of defendant Elliott and the garnishee. Two cost bills were presented to the taxing officer for taxation, one for $23.53 in favor of the garnishee defendant, and one for $31.23 in favor of defendant Elliott and the garnishee. Both were taxed, but only the larger bill was included in the judgment. Objection was made before the taxing officer as follows: To the taxation of any costs; to the taxation of any costs in excess of $3; to the following items which were allowed: $3 for attending trial, $2 for a term fee, 50 cents sheriff’s fees for serving summons. The exceptions to the rulings of the clerk were duly presented to the court for consideration on a motion for a review of the taxation of costs, and the motion was denied. A motion was made after judgment, based on affidavits, for an order setting it aside and granting a new trial, which was denied. The appeal is from the judgment only.</p> <p>Defendant Elliott neglected to plead his discharge in bankruptcy for several months after it was granted, and was then permitted to enter such plea in the main action, and in' the second garnishee action, without the imposition of any terms. After such plea was interposed plaintiff made no offer to discontinue either of the actions, and after the lapse of several months they were brought to a hearing mainly on the defense, as before indicated, of the discharge in bankruptcy.</p>

The complaint alleges that between January 4 and July 17', 1894, the defendant and one Collins were partners, and as such carried on the business of running a hotel at Superior, Wisconsin; that between the dates mentioned plaintiff sold said copartners milk; that there is still a balance due of $109.05. About July 17, 1894, Collins sold out to defendant, and as a part of the considei’ation for such sale he agreed to pay the debts of the partnership.

J. YiNje, Circuit Judge. The Bank of West Superior being in the hands of the defendant as assignee, one I. W. Burhans, who had been president of the bank, presented a claim on March 16, 1897, for $5,377.26, balance of deposit account, which was not controverted. This claim was afterwards assigned to J. L. Goodvin, the plaintiff herein. The defense consisted of three counterclaims, of which only one was sustained.

<p> Criminal law and practice: Burglary: New trial: Discretion. </p> <p>Upon a motion for a new trial, made by a defendant who, on the day after his arrest, had pleaded guilty to an information for burglary, it was urged that he was only eighteen years old, simple-minded and foolish, and was intoxicated when he broke and entered the building; that he had no lawyer to advise him, and no relative or friend to counsel with, but was advised, coaxed, and threatened by the police officers to plead guilty. Upon the evidence, however, adduced before the trial court upon the hearing of the motion, it is held that it was not made to appear that justice had not been done, and that there was no abuse of discretion in denying the motion.</p>

<p>Appeal from a judgment and an order of the circuit court for Polk county: A. J. Vinje, Circuit Judge.</p>