Volume 110 — Wisconsin Reports

<p> Entire contracts: Preventing performance: Court and jury: Estates of decedents. </p> <p>In an action to recover under a contract by which plaintiff agreed to act as housekeeper for defendant’s testator during his life, hired help to be provided by him in case she was sick, in consideration of ta certain sum per month and in addition $1,500 at his death unless she left her position before that time, there was evidence that plaintiff left the employ of deceased before his death; that she was sick and unable to do her work, though not confined to her bed, and that deceased did not provide help as he had agreed to do, and stated to others that she was only pretending to be sick, but no evidence that plaintiff asked for help and/it was denied, or that it was impracticable for her to remain with the deceased and be treated for her illness. Held, insufficient to require submission to the jury of the question whether deceased wrongfully prevented plaintiff from performing the contract.</p>

<p> Wills: Probate: Undue influence: JEvidence. </p> <p>Testatrix, eighty-four years of age when she executed the will in question, lived with her daughter, to whom she left the greater part of her estate, except small legacies to the contestants, children of a deceased son, and a considerable legacy to another son. She lived about four years after making the will, and before and thereafter attended to the greater part of her business. The will was properly executed at the home of a distant relative of the daughter’s husband, neither she nor her husband being in the room at the time, though in-the house; and after being signed, it was left on the table until taken by the son-in-law. Prior to its execution testatrix made declarations that the paper was her will, put in form by her son-in-law and then copied by her. She was then in good spirits, and took a lively interest in everything about her. with nothing to indicate she did not fully realize the importance of her action. There was evidence of her declarations that she intended her daughter to have the largest share of her estate, that she had promised her son not to make any will, and that by subsequent declarations she was fully conscious of having made the will. There was conflicting evidence as to her'mental capacity. In a contest over the probate of such will findings that the will was not invalid because of the undue influence of the daughter are held not against the clear preponderance of the evidence.</p>

<p>Municipal corporations: Waterworks: Contracts: Exclusive franchise: Ultra vires: Exemption from taxation: Ordinance: Definiteness: Waiver: Estoppel: Appeal from disallowance by council: Evidence: Custom.</p> <p>1. The fact that a contract between a city and a water company is ultra vires in so far as it grants an exclusive franchise is not available as a defense in an action by the water company to recover back taxes alleged to have been levied and collected in violation of said contract. [Whether in the absence of legislative grant a city has power to grant exclusive franchises, not determined.]</p> <p>2. A provision in such contract that the city should pay for water for municipal purposes a sum, in addition to hydrant rentals, equal to the amount of all taxes levied on certain parts of the company’s plant, expressly contemplates the payment of taxes, and is therefore not invalid as an exemption from taxation.</p> <p>3. A provision in a contract between a city and a water company that the former should pay, in addition to hydrant, rentals, a sum equal to the amount of all taxes assessed on such portions of the plant as were located on streets and public grounds, is held incapable of enforcement, since taxes must be assessed in a lump sum on all the property of such a company, including its franchises, and, by the terms of the contract, no satisfactory basis of apportionment is furnished.</p> <p>4. Where for over six years a city paid a water company the semiannual hydrant rentals due under its contract, and made no complaint as to the character of the services rendered, although it had full knowledge of the imperfect character thereof, such conduct amounts to a waiver of a known right, and precludes the city from recovering damages based on such insufficient service.</p> <p>5. Where the service to be performed is continuous, and its proper performance is a condition precedent to a right of action, and the act as performed is defective and imperfect, if the adverse party takes no objection to the manner of its performance, but pays the stipulated price, he cannot afterwards be permitted to reclaim the rights he has thereby waived.</p> <p>■6. Sec. 48, ch. 238, Laws of 1882, provides that when a claim has been disallowed by the common council of the city of Monroe and an appeal taken, such appeal shall be tried in the same manner as appeals from justices of the peace; and sec. 37G8, Stats. 1898, provides that certain actions appealed from justices of the peace shall be tried in the appellate court as actions originally brought therein. Held, that when the conditions on an appeal from the action of the city council are such that a new trial in the circuit court is allowed, it is permissible to interpose a proper counterclaim.</p> <p>7. Where a water company brought an action against a city, and the city set up a counterclaim for inadequate service at fires, the admission of evidence of inadequate service prior to the date from which recovery was sought, and also after the action was brought, cannot be justified on the ground that it showed habit, or custom, or course of conduct existing for a long time, it appearing from the city’s bill of particulars that for a portion of those times no serious complaint was made.</p>

<p>Guardian and ward: Mutual benefit societies: Certificate: Designa;-lion of beneficiary: Change: By-laws: Evidence: “ Family ”: Wills: “Estates”: Residuary bequest: Accounting: Sureties: Support of wards: “Investments.”</p> <p>1. Where a widow, who was designated in a certificate of membership in a mutual benefit society as trustee for certain children of her husband, was appointed guardian of such children, and subsequently received the proceeds as trustee, the ownership thereof by her wards being clear and unambiguous, she is liable as guardian from the time the money was paid to her.</p> <p>2. Where in an application for insurance in a mutual benefit society the applicant declared his wish that it should be for the benefit of his “estate,” but the association issued and he accepted a certificate which agreed that the association should pay the “ family ” of the member, the contract is expressed by the certificate, and not by the application.</p> <p>3. In such case, the proceeds having come to the hands of the executrix of the member, who was also guardian of minor members of his family, she is chargeable as guardian for the share thereof belonging to her wards.</p> <p>4. In the absence of any evidence that such applicant ever designated any beneficiary other than his “ family ” the fact that, after the certificate was issued, the by-laws of the society were changed so-as to authorize the payment to any designated beneficiary, instead of limiting payment to the “ family,” is immaterial.</p> <p>5. Where a certificate of membership in a mutual benefit society was payable to “the family ” of the member, who left children by his surviving widow and one child by a former marriage, such child is one of the class designated as “ the family ” of the member, and entitled to his pro rata share of the proceeds.</p> <p>6. The proceeds of a certificate of membership in a mutual benefit society, payable to designated beneficiaries, can in no in'oper sense-be said to be any part of the estate of the member, and there can be no inference of intent to change the already designated beneficiaries by a mere residuary clause in the member’s will.</p> <p>7. A mother, who was also guardian of her minor children, filed a report statipg that all of said minors were living with her, and that she made no change at that time on account of expenses, such as board and clothing, for any of the wards, and they continued tO' reside with her until her death, six months later, without her having receded from such expressed intention. Held, that the sureties on the guardian’s bond were not entitled to an allowance for such board and clothing, when sued for a balance due from their principal.</p> <p>8. Where a guardian ostensibly invested her ward’s money in a loan to herself, giving notes and mortgages on her own property to her wards, the transaction cannot be treated as in any respect an investment of the trust funds.</p> <p>9. In such case the mortgage may be treated«as an application by the guardian of so much of her property to a repayment of the money improperly diverted, and, in an action therefor against the sureties on her bond, they are entitled to credit for all sums realized thereon.</p> <p>10. Where a guardian ostensibly invested her wards’ funds by a loan to herself, giving notes secured by mortgage on her own property, and a subsequent guardian, by pledging such securities, raised money which he expended for the wards’ benefit, in an action against the sureties of the first guardian to recover such funds so wrongfully loaned, the sureties are entitled to a credit for the amount so expended by the second guardian for the wards.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: James J- Diok, Circuit Judge. Reversed.</p> <p>For the appellants there was a brief by Armin <& Waite, and a supplemental brief and oral argument by G. E. Arrrm/n.</p>

<p> Master and servant: Personal injuries: Negligence: Felloic-servant: Obvious clanger: Failure to team. </p> <p>1. Defendant’s agent requested plaintiff, a boy fourteen years old, of ordinary health and intelligence, to assist him in putting trucks under a binder, and plaintiff was injured by the negligence of the agent in allowing the binder to tip over while plaintiff was so employed. Held, that plaintiff and the agent were fellow-servants of defendant, and that plaintiff was entitled to the same protection as any other servant of defendant of similar age and intelligence, and was subject to the same risks of injury from the negligence of a fellow-servant.</p> <p>2. In such case the danger of the machine falling over, being one within the common knowledge of boys as well as men, was not such a danger as called for a warning from defendant’s agent before setting plaintiff at work, and failure in that regard did not constitute negligence.</p>

DicK, Circuit Judge. Action of replevin for a quantity of hotel furniture. Plaintiff leased of respondent, for the season of 1897, a summer hotel with its furnishings, agreeing to return, at the termination of the lease, as much personal property in kind and quality as that covered by the lease, and to purchase for his use any additional furniture he might need.

<p> Appeal: Notice: Service: Erasures: Presumptions, </p> <p>1. The record must affirmatively show service of the notice of appeal to the supreme court on the respondent or his attorneys and the clerk of the proper court, or the court will decline to assume jurisdiction and dismiss the appeal.</p> <p>2. A notice of appeal was indorsed in typewritten words “ Services admitted, May-, 1900.” Underneath the names of respondent’s attorneys had been written, and the words, “ Plaintiff's Attorneys ” and “ Clerk of Said Court,” typewritten. Through all of such words and figures a pen had been drawn, and over all the fling stamp of the clerk of the county court had been placed. Held, that the supreme court could not presume, in the absence of any date, that the erasures were made after service, or that service was in fact made.</p> <p>3. While the fact that a notice of appeal was filed with the clerk, and had been returned by him with the record, may raise a presumption of service upon him, it does not aid a failure of proof of service on respondent or his attorneys.</p>

<p>Appeal from an order of the circuit court for Waukesha county: James J. Dice, Circuit Judge.</p>

S. Griswold, Judge. This was an action to enjoin the erection of hotel buildings, docks, etc., on the margin of Pewaukee Lake, and west of Main street, in the village of Pewauhee, at a point a few hundred feet north of the, loans involved in the case of Pewauhee v. Savoy, 103 Wis. 271, and to compel removal of work already done.

Dice, Circuit Judge. This is a contest over the probate of the alleged will of William Butler, deceased. The contestants are adult children of the decedent, and they allege lack of mental capacity on the part of the deceased, as well as undue influence. The will was admitted to probate in the county court of Waukesha county, and the appellant, Templeton, who is named as executor in the will, duly qualified and received letters testamentary.

S. G-eiswold, Judge. Action for a wrongful conversion of personal property. The trial was by the court.

ApplioatioN for leave to bring an action to forfeit the franchise of the Ashland Water Gompamy. Application for leave to commence an action in circuit court to forfeit the franchise of the Ashland Water Gom-pcmy, under which, since about 1884, a system of waterworks has been maintained to supply water for public and private purposes in the territory included within the city of Ashland.

S. Gbiswold, Judge. The plaintiff, a married woman having a family, is the owner of a farm of about 115 acres, south of Waukesha, bounded on the northwest and west by a small, shallow, and sluggish stream called Fox river, which runs through the city of Waukesha•, and is the only natural drainage course therefrom. On this farm, about 850 feet east of the river, is the residence of herself and family.

<p> Bailroads: Negligence: Personal injuries: Felloio-servants: Court and jury: Immaterial error: Transitory action: Presumptions as to statutes of another state: Excessive damages: Misconduct of counsel. </p> <p>1. Whether two persons are fellow-servants when all the facts in respect to their several duties and lines of employment are undisputed, is a question of law for the court. While it is improper to submit such a question to the jury, their finding thereon cannot have any significance in supporting; a judgment, and may be disregarded on appeal.</p> <p>2. To constitute fellow-servants it is not necessary that the negligent workman causing the injury and the one injured should both be engaged in the same particular work: it is sufficient if they are employed by the same master, under the same control, and performing duties and services for the same general purpose. Hence, a conductor and a brakeman on a freight train, who negligently leave the train standing on the track without displaying the proper signals, are fellow-servants of a fireman on another train, who is injured by a collision resulting from such negligence. Phillips v. C., M. & St. P. B. Co. 64 Wis. 475, distinguished.</p> <p>3. An action was brought in Wisconsin against a railroad company for an injury occurring in Illinois, caused by the negligence of fellow-servants in the operation of trains. Sec. 1816, Stats. 1898, expressly gives a right of action for all damages sustained within Wisconsin by an employee engaged in the performance of his duty while operating, running, riding upon, or switching passenger, freight, or other trains, engines, or cars, caused by the carelessness or negligence of any other employee. The law of Illinois on the subject of fellow-servants was not proved, but in both states the common law is in force except as modified by statute. Held, that the presumption exists that the law of Illinois on that subject is the same as the law in Wisconsin, and that the plaintiff was not barred from a recovery by reason of the negligence complained of being the acts of such fellow-servants.</p> <p>4. An action against a railroad company by an employee for injuries received in Illinois, being transitory, is triable in the courts of Wisconsin.</p> <p>5. A railroad fireman, injured in a collision, received a compound fracture of a leg, and all the toes of that leg were amputated. He remained in bed ten weeks, was treated for nearly a year and a half, during which time he was very weak, and suffered a great deal, and for a time was helpless. The foot never got thoroughly well. On the trial of an action therefor, his attorney, in the closing argument, charged that the defendant failed to put certain witnesses on the stand, and that railroad companies had a certain coercive method of calling men in to make statements, and,- although warned by the trial court, continued, in substance, that such facts were matter of common knowledge, and that courts take judicial notice that corporations do get men to do those things. Held, an abuse of the privilege of counsel.</p> <p>6. In view of the record and such remarks of counsel a verdict of $7,500 is held greatly excessive, and a remission of $2,500 is made a condition of judgment in plaintiff’s favor.</p>

Dick, Circuit Judge. This is an action in equitjr to foreclose a legacy alleged to be charged upon certain real estate. One John P. Slight, the testator, died October 5,1896, a resident of Watertown, in this state, having at the time of his death record title of the land in question, which land consisted of a farm of 154 acres in the town of Emmet, Dodge county.

<p> Mortgages: Tax liens: Status: Bight of mortgagee to pay or purchase: Foreclosure: Deficiency: Joinder of causes of action: Parties: Pleading: Waiver. </p> <p>1. If a mortgagee of real estate, in order to protect his interest therein, pays or purchases tax claims thereon, the status of such claims, as tax liens, is thereby extinguished, but there is created, by force of the statute, a lien, in favor of the payor, upon the realty, for the amount of his expenditures and interest, secured by the mortgage, of as high a grade as the original mortgage lien.</p> <p>2. The right to the additional lien under the circumstances stated is statutory and absolute. The court has no more power to deny or diminish or refuse to enforce it against the realty, or, if the mortgagor agreed in the mortgage to pay the taxes, to refuse to enforce the amount of such lien against the mortgagor as a personal liability, than he has to arbitrarily reduce the amount actually due upon the principal debt.</p> <p>3. In an action to enforce a mortgage there must be a foreclosure and sale of the subject thereof adjudged as the statute provides, unless waived by the mortgagee; and that is so regardless of the interest of the mortgagor in the premises at the time of such enforcement.</p> <p>4. A cause of action to enforce a mortgage, and one to recover on the personal liability of the mortgagor, grow out of the same transaction and are connected with the same subject thereof, hence may be joined under the statute on that subject regardless of the statutory provision for deficiency judgments in foreclosure cases, provided no one other than the debtor is made a defendant and the two causes of action are separately stated.</p> <p>5. If two causes of action are joined under the circumstances above stated and a person other than the debtor is made a defendant or the causes of action are not separately stated, such defects are waived by answering the complaint, and the plaintiff is entitled to enforce both causes of action. The court has, in such circumstances, no mere equity power to refuse to grant to the plaintiff relief upon both, if the facts are sufficient for the purpose. •</p> <p>[Syllabus by Marshall, J.]</p>

<p>Appeal from a judgment of the circuit court for Door county: S. D. Hastings, Je., Circuit Judge.</p> <p>Action under sec. 3347, Stats. 1898, to realize on a pledge of two life insurance policies on the life of defendant Theodore C. Shove, which were assigned to plaintiff in 1886 as •collateral security for Mr. Shove’s note of $2,000. His wife and the insurance companies were joined with him as defendants. He answered separately, alleging as a defense and also as a counterclaim the following: From June 1, 1884, down to and inclusive of April 12, 1892, said defendant and plaintiff’s son, Adolph J. Endress, were associates in banking business. At the last date mentioned, and for some time theretofore, the enterprise was in a corporation known as the T. C. Shove Banking Company. During the time of such association Adolph J. Endress was general agent for plaintiff in all of his business affairs. They daily consulted together in regard to such business. On the date last named the banking corporation, by reason of its insolvency, made an assignment for the benefit of creditors, in consequence of which defendant lost all his property. On the day of the assignment it was agreed between plaintiff, acting by his son Adolph, and said defendant, that the latter should give to the former a note for $4,000 secured by a real-estate mortgage, in payment of the $2,000 note mentioned in the complaint and to secure a new loan of $2,000, ' the old note and the collateral to be delivered to defendant upon the execution and delivery of the new note and security, so that the collateral could be assigned to Mrs. Shove. Such agreement was fully carried out by Mr. Shove, Mrs. Shove joining in the mortgage on the real estate. The note and mortgage were delivered to Adolph J. Endress. He delivered the same to plaintiff, but the latter refused to comply with his part of the agreement. He has kept both the new note and security and the old note and security, and is endeavoring to enforce payment of such old note by realizing on the collateral in this case. Appropriate relief was prayed for.</p> <p>Plaintiff put the allegations of the counterclaim in issue. On the trial the evidence showed the following: Plaintiff at the time of the transaction in controversy was about ■seventy and Mr. Shove about fifty-six years of age. Mr. Shove had been engaged in the banking business for upwards •of thirty years. In 1884 he associated with him Adolph J; Endress, who had theretofore for some time been in his employ. At the time the business association commenced young Endress was about twenty-one years of age. Plaintiff furnished capital for his son to the amount of about $10,000, taking the son’s note therefor, guaranteed by Mr. Shove. In July after the partnership was formed the business of the bank was put into a corporation under the name ■of the T. 0. Shove Ranking Company, $10,000 of the capital stock being issued to young Endress as his portion thereof. ■June 9, 1886, Mr. Shove borrowed $2,000 of plaintiff, giving therefor his promissory note secured by an assignment of the policies in suit. June 1, 1888, the note was renewed. The new note and the policies are those mentioned in the complaint. The bank made an assignment for the benefit ■of creditors in 1892, at which time a note of $4,000, secured by a mortgage on the bank building belonging to Mr. Shove, was agreed to be given to plaintiff, the business in his behalf being done by his son. The agreement was consummated April 14,1892. In the meantime the real estate was .attached in a suit commenced by one Hubbard against Mr. Shove to recover several thousand dollars, the claim being so large as to render the mortgage security of uncertain value. When the agreement was made Mr. Shove was in a very anxious state of mind as to the future of himself and family. It was to him a day of great excitement because of the impending assignment of the bank and the probable effect thereof upon his affairs. On the day the agreement was made, either by the suggestion of Mr. Shove or the voluntary act of Adolph J. Endress, $2,000 in currency and $1,155 in value of government bonds, part of the assets of the bank, were taken therefrom and delivered to Mr. Shove at the lawyer’s office where the assignment papers were in process of preparation. When the note and mortgage were delivered to Adolph, Mr. Shove was sick in bed. The assets of the bank, taken as aforesaid, were subsequently returned. The testimony as to the taking thereof is conflicting. Mr. Shove laid the blame to young Endress, claiming that he, Shove, was so angry with the young man for perpetrating the act that he threatened to have him arrested and that it it caused strained relations between them. Mr. Endress claimed that he took the money and bonds from the bank against his own judgment, by the express direction of Mr. Shove. The evidence is undisputed that the property taken was delivered to Mr. Shove, was in his' possession when or about the time the alleged agreement was made, and that on the evening of the day of the taking Mr. Shove divided the subject thereof, giving part to young Endress and keeping the balance, and that three or four days elapsed before the property was delivered to the assignee.of the bank.</p> <p>Mr. Shove’s version of the agreement as to the note and mortgage for $4,000 was substantially according to the allegations of his answer. He was corroborated in that by Mrs. Shove. She said that Mr. Endress and her husband came to her to obtain her signature to the mortgage, and that the agreement in regard to the matter was then stated, and she was promised that if she would sign the mortgage the insurance policies would be delivered so they could be assigned to her in accordance with a previous assignment thereof. In explanation of the testimony as to a previous assignment, an instrument was introduced in evidence showing that such'policies and several others were assigned to Mrs. Shove in 1891, and that young Endress was a subscribing witness. He testified that he had no recollection of any such paper, yet the evidence tended to show that he not only witnessed but had personal charge of it and sealed it up in the condition in which it was found in the bank.</p> <p>Mr. Endress’s version of the agreement as to the mortgage .was that Mr. Shove proposed to him that he should pay his lather all he could of the $10,000 note and that Mr. Shove should secure the balance; that it was considered that such balance wovjld be about $4,000 and that the note and mortgage were delivered accordingly; that the giving thereof Avas the voluntary act of Mr. Shove; that he suggested it during the time of great excitement aforesaid; that it was made up that he, Endress, should pay his father some $6,000 upon the guaranteed note and that .Mr. Shove should secure the balance of the principal; that upon such understanding being arrived at, Mr. Shove attended personally to having the mortgage drawn, and that the witness, pursuant to the understanding, turned over to his father, as payment upon the $10,000 note, all the property he possessed, amounting to about $6,000.</p> <p>The following facts in evidence are referred to as corroborative o'f Mr. Shove's version of the agreement as to the giving of the note and mortgage: $2,000 was indorsed on the $4,000 note a short time after its delivery without any actual payment being made. A short time after such delivery the policies were demanded on behalf of Mr. Shove, at which time plaintiff did not refuse to comply therewith but said he would do so when his son arrived, who was then absent. The $10,000 guaranteed note was not taken up or canceled at the time the $4,000 note was delivered, nor thereafter. The insurance policies, if handled adversely to Mr. Shove, were of little value as security for the $2,000 note. When the verbal contract to give the mortgage was made, the real estate to be mortgaged was good security for $4,000. On the other hand the evidence showed or tended to show that after the demand for the policies was made, nothing more was said about them till the commencement of this action. They, together with the $2,000 note, were allowed to remain in plaintiff’s possession without objection. In 1892 Mr. Shove claimed that the note and mortgage were given on account of the guaranty of the $10,000 note, and made no claim to the contrary till the commencement of this action. Mrs. Shorn claimed in 1892 that she had no knowledge of the purpose of the note and mortgage when they were given. The indorsement of $2,000 was made after it was known that the value of the real estate was largely covered by the Hubbard attachment. Plaintiff’s son knew that fact when he accepted the mortgage, but was informed by Mr. Shove that the attachment would not hold. Adolph turned over to his father on April 12,1892, all property possessed by him, reducing the amount due upon the note to about $4,000. The indorsement of the $2,000 was explained by Mr. Shove as having been made because respondent refused to carry out the agreement to loan him that sum. He explained the purpose he had in view in obtaining the loan by saying that the circumstances in which he was situated suggested that it was a prudent thing to do to make some provision for the future needs of his family. The indorsement was explained by appellant as having, been made at the request of Mr. Shove to leave him a sufficient interest in the mortgaged property to secure a creditor by the name of Rahr, who was not called to testify upon the trial. Appellant said he looked over the property turned out by his son .and concluded that he could make $2,000 out of six lots in Rhinelander, taken for $1,500, and in that view he consented to Mr. Shove’s request to indorse the $2,000 upon the note so he could secure Mr. Rahr. The lots were purchased by young Endress, shortly before they were turned out to appellant, for $1,300. The evidence was to the effect that if the note and -mortgage were given for the purpose testified to by appellant, or that testified to by respondent, no effort was made to deal with exactness as regards the amount due upon the outstanding notes.</p> <p>The trial court found the facts substantially as alleged in Mr. Shove’s counterclaim, and rendered judgment accordingly.</p>

<p>Appeal from a judgment of the circuit court for Mari-nette county: S. I). Hastings, Je., Circuit Judge.</p> <p>The plaintiff sues to recover $166 for services performed in one of defendant’s lumber camps. The answer admitted the performance of the labor, alleged an accounting which showed the balance due plaintiff to be $84.52, the issuing of a time check in payment of that amount, and the subsequent payment of $3.35. There was a tender of judgment for $81.87. The case was tried in justice’s court, and taken to the circuit court on plaintiff’s appeal. A jury was waived, and the case was tried by the court. On May 17, 1898, the court filed a written decision in favor of plaintiff. The defendant requested certain findings which were refused. Exception was filed to the court’s decision and to the refusal of the court to find as requested. A judgment was directed for plaintiff for the sum of $136.67 and costs, which was duly entered, and from which this appeal is taken by defendant.</p>

<p>Street railways: Negligence: Injuries to traveler: Court and jury: Contributory negligence: Comparative negligence: “ Cross negligence.”</p> <p>1. It appeared, among other things, that the driver of a wagon, who had plain view for a distance of 300 to 400 feet of an electric car approaching at a speed of from eight to twelve miles an hour, which was shown to be a usual rate of speed, when within 130 feet of the car, hurriedly attempted to cross in front thereof, and although the motorman immediately attempted to stop the car, a collision occurred. Held, that the driver was guilty of contributory negligence as a matter of law.</p> <p>2. While travelers on foot, by team, and by electric car may lawfully ■ use the public highway, the purpose of expedition to be accomplished by the electric railway, and the character and weight of the vehicles necessary therefor, must result in deference from the foot traveler and the teamster to the electric car, and in an action to recover for an injury due to a collision the question is not whether the plaintiff had a right to he in the course of defendant’s oar, but whether he was negligent in being in that position.</p> <p>3. The doctrine of supervening or comparative negligence has no place in the jurisprudence of Wisconsin.</p> <p>4. The expression “gross negligence” as used by Wisconsin courts includes no degree of mere carelessness or inadvertence, however remote from the care customarily used by either the ordinarily careful man or by the exceptionally careless one, unless accompanied by intent, either actual or constructive, to cause the injury, or unless the conduct causing the injury evinces a total disregard for the safety of persons or property, so as to be little less than intentional wrong.</p> <p>6. Where a motorman approaching a crossing with his car running at. a customary speed of from eight to twelve miles an hour sees a driver of a wagon attempt to cross in front of his car when it is within 130 feet of the wagon, and immediately applies the bralies and attempts to stop the car, which is sonearly effected that the car stops from four to ten feet after collision, he is not guilty of gross-negligence authorizing a recovery independent of the contributory negligence of the driver.</p>

<p> Municipal corporations: Defective sidewalks: Negligence: Personal injuries: Appeal: Evidence: New trial: Notice of defect: Expert testimony: Exhibits: Prejudicial error. </p> <p>1. In. an action against a city for personal injuries it is held, upon the evidence, that there was no abuse of discretion in refusing a new trial on the ground that the verdict in plaintiff’s favor was contrary to the evidence.</p> <p>2. In such an action it is not error to admit testimony as to whether the plaintiff appeared to suffer pain.</p> <p>3. In an action against a city for injuries sustained by reason of a defective sidewalk, evidence that planks in the walk were rotten for some distance on either side of the place where the injury occurred is admissible to show that the city had notice of the bad condition of the walk, and if defendant’s counsel desires that such evidence should be more restricted, he should request an instruction to that effect.</p> <p>4 In a suit for injuries sustained by stepping into a hole or through a rotten place in a plank in a sidewalk, the admission of expert testimony as to the probability of such accident causing certain injuries, and as to whether there was a probability of such injuries being permanent, is held not to have been a material error where the court charged that, if the evidence satisfied the jury to a “ reasonable certainty,” the plaintiff was entitled to recover, and that they might consider, in fixing the amount of damages, what amount of physical and mental suffering it was “reasonably certain” plaintiff would endure in consequence of the injury, since the jury cquld not have been misled by such testimony.</p> <p>5. Where the hole in the sidewalk and its rotten condition are conclusively established in such a case, it is not prejudicial error to allow a witness to exhibit to the jury pieces of the plank where the hole was, for the purpose of showing its condition. Stewart v. Everts, 76 Wis. 35, distinguished.</p>

<p> Mechanics'liens: Subcontractors: Claim for Ken: Notice to owner: “Material facts.” </p> <p>1, The name of the original contractor, and the giving of notice in writing to the owner of the property affected by a claim for a subcontractor’s lien, required by sec. 3315, Stats. 1898, are “material facts in relation thereto,” and therefore, under sec. 3320, Stats. 1898, must be stated in the claim for lien or it is insufficient.</p> <p>[3. Whether the notice of claim for a subcontractor’s lien, if it contains the facts required under sec. 3320, Stats. 1898, to be stated in the claim for lien, and has been properly filed, may serve the purpose of such a claim, not determined.]</p> <p>3. A mechanic’s lien being purely a statutory right, it must be pursued as the statute directs or it fails.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: Johet K. Pabish, Circuit Judge.</p> <p>Action for damages for breach of contract for the construction of a building. The complaint stated that a contract was made between plaintiff and defendant April 1, 1893, whereby the latter for value agreed to construct for the former a two-story frame building with basement, in a good, workmanlike manner, the superintendency and manner of construction to be left to defendant; that plaintiff performed his part of the contract; that defendant constructed and delivered a building under the contract, but it failed to satisfy the requirements thereof in several particulars, specifically pointed out, to the damage of plaintiff in the sum of $2,000.</p> <p>Defendant answered admitting the making of a contract for the construction of the building which was delivered to plaintiff, and alleging that such contract called for a building according to certain plans and specifications; that it was constructed in accordance therewith, except changes and additions made by agreement during the progress of the work; that it was completed about July 15, 1893; that plaintiff thereafter accepted it in full satisfaction of the contract on defendant’s part, and that there was a full settlement of all transactions under the contract, at which time plaintiff paid defendant the balance of the contract price.</p> <p>The evidence showed beyond dispute that the building contract was in writing and had been lost. Defendant offered evidence of the negotiations leading up to the preparation and execution of the contract, and the circumstances thereof, which was rejected, due exception being taken to the ruling of the court in that regard. There was evidence tending to show that when the settlement was made defects in the structure, of the kind of or which developed those complained of, were recognized to exist, and that defendant was paid with the express understanding and agreement that the building should not be accepted as it stood, but that such defects should be made good by defendant. There was also evidence to the effect that, after the settlement, defendant recognized his obligation to remedy such defects. There was evidence on the other hand tending to show that the settlement was full and complete at the time defendant received his pay. Evidence was produced of the existence of defects in the building and the reasonable cost of remedying the same. The controverted questions were submitted to the jury under instructions by the court. They found that the settlement was conditional as claimed by plaintiff, that there was a breach of the contract on defendant’s part, and that plaintiff’s damages therefrom were $300. Judgment was rendered upon the verdict, the questions discussed in the opinion being properly reserved for review on appeal.</p>

Paeish, Circuit Judge. This action ivas originally commenced against the Wash-burn Brewing Company, Shell Lake Savings Bank, and Merchants’ National Bank of New York, to clear the title to certain lots, claimed to be owned by plaintiff, from the lien of a judgment held by the last named bank against the brewing company. The defendant James H. Shields was afterward made a party upon his own application, and put in answer, the other defendants defaulting.

Plaintiff, a sawmill owner at Ashland, entered into written contract with the defendants as follows: “Ashland, Dec. 10 — 94. “Messrs. S. WilMnson & Go. “Gents: I will manufacture for you eight millions of saw logs into lumber, as you may direct, as fast as I can during the fore part of the season of 1895, sorting and cross-piling in a workmanlike manner. I will furnish boom room to store what surplus logs may accumulate faster than sawed.

<p> Debtor and creditor: Fraudulent conveyances: Gift to wife. </p> <p>Plaintiff at and before her marriage owned a piano, and on her husband’s request and his promise to buy her another gave the old one to her father. Afterwards, and while doing a profitable business, with no judgments or suits pending against him, he bought and gave her the piano in' question. More than a year thereafter he made a voluntary assignment for the benefit of creditors, up to which time a creditor who recovered judgment subsequent to the assignment, with his wife and daughter, were depositors in the husband’s bank. At the time the piano was given, plaintiff’s husband owed five dollars as deposits to such creditor’s wife and daughter, but none to him. It did not appear that the piano was purchased with intent to defraud existing or subsequent creditors, or that the plaintiff knew or participated in any such intent. Meld that, even though the husband was insolvent at the time of the purchase in the sense that his resources were insufficient to pay all his liabilities, the transfer was not fraudulent as against such creditor.</p>

Paeish, Circuit Judge. This is an action of ejectment. The summons and complaint were attempted to be served by a private person upon the 7th of September, 1898, by delivering the same to the-defendant’s daughter, Mrs. John H. Roemer.

<p>Writs of ebeoe to review orders of the circuit court for Milwaukee county: E. G-. Siebeckee, Judge.</p> <p>Writs of error to the circuit court for Milwaukee county to review orders thereof, in habeas corpus proceedings, discharging certain persons from custody who were under restraint, according to forms of law, to await trial for the offense of conspiracy to injure. The complaint charging the offense was under oath and as follows:</p> <p>“Lucius W. Eieman and Lloyd T. Eoyd', of the city of Milwaukee, in said county of Milwaukee, being- severally first duly sworn, complain to the police court for the city of Milwaukee, Milwaukee county, Wisconsin, that on or about the 5th day of April, A. D. 1900, at the city of Milwaukee, and within said county of Milwaukee, Andrew J. Aikens, Albert Huegin, and Melvin A. Hoyt did then and there unlawfully conspire, combine, confederate, associate, agree, mutually undertake and concert together for the purpose and with the intent then and there of wilfully and maliciously injuring The Journal Company, a corporation duly organized and existing under and by virtue of the laws of the state of Wisconsin, in its trade and business, and for the ■purpose and with the intent then and there of wilfully and maliciously injuring Lucius W. Nieman, Lloyd T. Boyd, and John W. Schaum, and each of them, in their trade, business, and occupation; that the said The Journal Company at all of said times was, ever since has been, and now is a corporation organized and existing under and by virtue of the laws of the state of Wisconsin, as aforesaid, and at all of said times was and now is the owner and publisher of a daily newspaper and advertising medium known as The Milwaukee Journal, published at the said city of Milwaukee, which said newspaper at all of the times herein referred to had, and now has, a large circulation as a newspaper and advertising medium in the city of Milwaukee, and throughout the state of Wisconsin and elsewhere; that it was at all of said times, and now is, the business and trade of said The Journal Company to publish said newspaper and to sell and furnish the same to its patrons and subscribers, and to solicit, receive, print, and publish in said newspaper for hire advertisements for merchants and other persons, as is customary with such newspapers, and that at all of said times and especially at the time of the said combination and conspiracy, and subsequently thereto, the said The Journal Company had a large number of advertisers or patrons who advertised in said newspaper, The Milwaukee Journal, and that a large portion of the revenue of said The Journal Company was and is derived from such advertisements; that the said Lucius W. Nieman, Lloyd T. Boyd, and John W. Schaum were at all of said times, and now are, stockholders in said The Journal Company, and financially interested in the business and success of said The Journal Company; that the business and trade of the said Lucius W* Nieman is, among other things, that of editor of said The Milwaukee Journal, and the business and trade of said Lloyd T. Boyd is that of business manager of said The Journal Company and of the said The Milwaukee Journal; and that at all of said times the business of said John W. Schaum was and is that of treasurer of said The Journal Company.</p> <p>“ That the prices of advertisements and the advertising rates which newspapers such as said The Milwaukee Journal and the other newspapers herein mentioned are entitled to charge, and which advertisers and patrons are willing to pay, depend and are based largely upon the circulation of such_papers and the number of their readers; that early in the year A. D. 1900, said The' Journal Company in good faith established a new rate for advertising in said The Milwaukee Journal, based, among other things, upon its increased circulation, and notified the patrons. of and advertisers in the said The Milwaukee Journal thereof, which said rate for advertising was an increase of about twenty-five ■per cent, above that which was charged by said The Journal Company for like advertising in the year 1899.</p> <p>“ That at all of said times the said Andrew J Aikens was, and now is, the business manager of The Evening Wisconsin, a daily newspaper published in the city of Milwaukee, and having also an extensive circulation and devoted to the purposes of a general newspaper and to advertising for hire, like unto said The Milwaukee Journal; that at all of said times said Albert Huegin was, and now is, the business manager of The Milwaukee Sentinel, a daily newspaper published at the city of Milwaukee, having an extensive circulation and devoted to the purposes of a general newspaper and to advertising for hire, like unto the-newspapers aforementioned ; that at all of said times said Melvin A. Hoyt was, and now is, the editor of The Milwaukee Daily News, and the president of the News Publishing Company, the corporation owning said The Milwaukee Daily News, a daily newspaper published at the city of Milwaukee and devoted to ithe purposes of a general newspaper and to advertising for hire, like unto the other of said newspapers.</p> <p>“That on or about said 5th day of April, A. D. 1900, the exact date whereof being unknown to affiants, said Andrew J. Aikens, Albert Huegin, and Melvin A. Hoyt, with others unknown to affiant, in furtherance and in pursuance of said unlawful conspiracy, combination, confederation, association, agreement, and mutual understanding, for the purpose and with the intent then and there of wilfully, maliciously, and unlawfully injuring said The Journal Company in its trade and business, and also said Lucius W. Nieman, Lloyd T. Boyd, and John ~W. Schaum, and each of them, in their trade and business, and to that end and with the purpose and intent aforesaid, did confederate, agree, and mutually undertake that if any merchant or other person or corporation advertising or proposing to advertise in said The Milwaukee Journal, should pay or agree to pay to said The Journal Company the increased rate for advertising established or fixed by it as aforesaid, that then and in that case any such person or corporation should not be permitted to advertise in any of said other three newspapers, to wit: said The Milwaukee Sentinel, The Evening Wisconsin, and The Milwaukee Daily News, unless such merchant, other person, or corporation should advertise in each of said three papers and pay to each of them or to the respective owners or proprietors of them, a corresponding increase over the rates respectively theretoforecharged bysuchotherthree newspapers, respectively, to wit: about twenty-üve per cent, in excess of what said" last-mentioned three papers respectively were then charging and had theretofore charged for advertising; but that in case any merchant, other person, or corporation-should refuse to pay to said The Journal Company the said increased rate established by it as aforesaid for advertising in said The Milwaukee Journal, then and in that case such merchant or other person or corporation so refusing should be at liberty to advertise in any or all of the other of said three newspapers at the rates which had theretofore been charged by said other three newspapers respectively; that a large number of merchants in the city of Milwaukee and other persons were at the time of said combination and agreement, and subsequently thereto, advertising in all of' said newspapers, to wit: The Milwaukee Journal, The Evening Wisconsin, The Milwaukee Sentinel, and The Milwaukee Daily News, and that the right or privilege to advertise in two or more of said papers was and is considered and regarded by a large number of such merchants and other persons as a valuable right and privilege and one much to'be desired; that all or the greater part of the patrons of and persons advertising in said The Milwaukee Journal were, pursuant to said combination and conspiracy on the part of said Ailcens, Iluegin, and Hoyt, and in furtherance thereof, notified by them of the said agreement, conspiracy, and combination between said Andrew J Aikens, Albert Iluegin, and Melvin A. Hoyt; that many of the patrons and advertisers in said The Milwaukee Journal were induced thereby to withdraw their advertisements therefrom, greatly to the injury of the business and trade of said The Journal Company and of said Lucius W. Nieman, Lloyd T. Loyd, and John1 W. Schaum; that pursuant to said combination, agreement, confederation, and conspiracy, and in furtherance thereof, said Andrew J. Aikens, Albert Huegin, and Melvin A. Hoyt, did refuse to allow the advertisements of divers. merchants and other persons to be inserted in either The Milwaukee Sentinel, The Evening Wisconsin, or The Milwaukee Daily News aforesaid, and did prevent the advertisements of divers merchants and other persons from appearing in all or any of said three last-mentioned newspapers because such merchants or other persons so prevented had paid or had agreed to pay to said The Journal Company the said increased rate for advertising established by it as aforesaid; ■and that by reason of said combination, conspiracy, and agreement many merchants in the city of Milwaukee and elsewhere, and other-persons, were prevented from advertising in said The Milwaukee Journal, greatly to the injury of the business and trade of said The Journal Company, and •of said Lucius W. Nieman, Lloyd T. Boyd, and John W. Schaum, and of each of them, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Wisconsin.</p> <p>“ Wherefore, affiants pray that the said Andrew J. Athens, Albert Huegin, and Melvin A. Hoyt he arrested and dealt with according to law.” '</p> <p>The complaint was filed with the police court in the city •of Milwaukee and such proceedings were thereupon had, based thereon, that the defendants therein named were arrested and produced before such court for a preliminary examination, whereupon a motion was made for their discharge upon the ground that the allegations of the complaint were not sufficient to show that a criminal offense had been committed. The motion was overruled. Thereupon evidence was taken before the court", tending to establish the allegations of the complaint. At the close of the evidence a motion was made to discharge each of the defendants, which was denied. The court then decided upon the evidence that the offense charged in the complaint had been committed, and that there was probable cause for believing the defendants guilty of such offense. Each defendant refused to give bail for his appearance before the municipal •court of Milwaukee county for trial, whereupon he was duly committed to the custody of the sheriff of such county to await such, trial. A commitment was delivered to the sheriff, as to each defendant, all being in the same form. The following is one of such commitments:</p> <p>“In the Police Coubt of the City of Milwaukee.</p> <p>“ State of Wisconsin,)</p> <p>“ Milwaukee County, j ’</p> <p>“ The State of Wisconsin, to the Sheriff,\ or his Deputy, or to any Constable or Polieemam,, and to the Keeper of the Common Ja/il of said County:</p> <p>Whereas, Albert Huegim, has this day been brought before the police court of said city, charged on the oath of Lucius W. Nieman and Lloyd T. B03A with having on or about the fifth day of April, A. I). 1900, at the city and county of Milwaukee, committed the offense of conspiracy to injure.</p> <p>“Andwhereas, an examination of the said Albert Iluegin has been held before said court, and the said court being satisfied that an offense has been committed as charged in said complaint, and that there is probable cause to believe the prisoner guilty thereof, whereupon the said court did require the said Albert Iluegin to recognize with sufficient sureties in the sum of five hundred ($500.00) dollars, for his appearance before the municipal court of said county, at the present term thereof, for the year 1900, and not depart said court without leave. And the said Albert Huegin having failed to recognize in due form of law.</p> <p>“Now, therefore, in the name of the state of Wisconsin, you are hereby commanded forthwith to convey and deliver into the custody of the said keeper of the common jail, the body of the said Albert Huegin, and you, the said keeper, are commanded to receive the said Albert Huegin into your custody, in the said jail, and him there safely keep until he shall recognize as aforesaid or shall otherwise be discharged by due course of law.</p> <p>“Witness, the Honorable Neele B. Neelen, justice of the police court of said city of Milwaukee, this 30th day of June, in the year of our Lord one thousand nine hundred.”</p> <p>Thereafter each defendant, on a petition stating the proceedings to which reference has been made, sued out of the circuit court for Milwaukee county a writ of habeas corpus to test the legality of his detention. The sheriff of the county made due return to each of such writs, justifying tbe detention by tbe commitment placed in bis bands as before stated.</p> <p>traversing tbe return of tbe sheriff, alleged that tbe proceedings upon wbicb bis detention was based were illegal and void and beyond tbe jurisdiction of tbe committing magistrate for tbe reasons set forth in his petition for tbe writ. Such reasons were, in substance, that the complaint failed to state facts sufficient to constitute a criminal offense. MeVoin A. Hoyt, another of the persons in custody, demurred to the return to bis writ, for insufficiency. Andrew J. AiJcens interposed a traverse similar to that of defendant Huegin. On the bearing on behalf of defendants Huegvn and AiJcens, and in support of their pleas to the return of tbe sheriff, tbe evidence and proceedings bad in the police court were offered and received in evidence. Tbe commitments were also offered and received in evidence. Tbe district attorney then moved the court that James Gr. Flanders and William H. Austin, attorneys of tbe court, be allowed to appear as counsel for tbe sheriff. Tbe motion was denied upon tbe ground that habeas corpus proceedings are criminal in character, or involve an inquiry into a criminal proceeding, and that tbe duty devolves solely upon tbe district attorney to represent tbe state, tbe real party, in such a matter, tbe sheriff not being a party to tbe proceeding at all.</p> <p>Tbe court then decided that tbe proceedings which resulted in the several commitments were illegal, because tbe facts alleged in tbe complaint did not constitute a criminal offense; that the statute under wbicb the prosecution was commenced covers only cases where tbe purpose of tbe combination is to do such an injury that an action at law can be maintained for damages, against tbe members of tbe combination, in case its purpose is carried out. An order was accordingly entered to discharge each of tbe defendants from custody. Such orders are presented here for review by writs of error, as before stated.</p> <p>After returns were filed to the writs of error issued out of this court, a motion was made on behalf of the sheriff of Milwaukee county for leave to be heard by private counsel, which motion was opposed by the defendants in error.</p> <p>They contended, inter alia, that habeas corpus being a civil proceeding to enforce the civil right of personal liberty, and the sheriff having been made a party by the defendants in error, he had a right to be represented by counsel of his own selection. Ex parte Tom, Tong, 108 U. S. 556; Ex parte Collier, 6 Ohio St. 60;. In re Sciever, 42 Neb. 772; State v. Col-lims, 54 Iowa, 441; In re Balter, 56 Vt. 1; Yudlcim v. Gates, 60 Conn. 426; Hunt v. Hrnen, 52 N. H. 162. A court of competent jurisdiction having passed upon the sufficiency of the complaint, the circuit court had no power or jurisdiction to pass upon the same question on habeas corpus: if error has been committed, it must be corrected on appeal or writ of error. In re Blair, 4 Wis. 522; In re Eldred, 46 Wis. 530; In re Milburn, 59 Wis. 24; In re Graham, 74 Wis. 450, 76 Wis. 366; S. C. 138 U. S. 461; In re Rosenberg, 90 Wis. 581; In re Piltulik, 81 Wis. 158; Petition of Sember, 41 Wis. 517, 523, 524; In re French, 81 Wis. 597; In re Schuster, 82 Wis. 610; In re Eckart, 85 Wis. 681; State ex rel. Bunn v. Hoyes, 87 Wis. 340; In re Roszcynialla, 99 Wis. 534, 536; In re Meg-gett, 105 Wis. 291; subd. 2, sec. 3427, Stats. 1898; 3 Bl. Comm. 136; Hurd,- Habeas Corpus (2d ed.), 332; Cooley, Const. Lim. (6th ed.), 423; 15 Am. & Eng. Ency. of Law (2d ed.), 166; Ex parte Lees, EL, Bl. & El. 828; Exporte Roberson, 123 Ala. 103; State ex rel. Rea v. Kinmore, 54 Minn. 135, 40 Am. St. Rep. 305; Ex parte Phillips, 57 Miss. 357; Stoner v. State,</p> <p>4 Mo. 614; Ex parte Oafford, 57 Pac. Bep. 484; Ex párle Smith, 2 Nev. 338; Clifford v. Heller, 63 N. J. Law, 105; People ex rel. Trainor v. Balcer, 89 N. Y. 460; People ex rel. Tweed v. Piscomb, 60 N. Y. 559; People ex rel. McLoughlin ■v. Wilson, 88 Plun, 258; People ex rel. Stern v. N. Y. Soe. 27 Mise. (N. Y.), 457; Matter of Brittain, 93 N. C. 587; In re Schenck, 74 N. 0. 607; Ex parte Collier, 6 Ohio St. 55; Matter ■of Patswald, 5 Old. 789; Williamson v. Lewis, 39 Pa. St. 9; State v. Everett, Dudley (S. C.), 295; Ex parte Ezell, 40 Tex. 451; Ex parte Hays, 15 Utah,' 77; Matter of Lybarger, 2 Wash. 131; Ex parteWatkins, 3 Pet. 193; Ex parte Pa/rks, 93 U. S. 18; In re Eaton, 27 Mich. 1; Emcmuel v. State, 36 Miss. 627; State ex rel. Milwaukee v. Ludwig, 106 Wis. 226; State v. Davie, 62 Wis. 305; State ex rd. De Puy v. Evans, 88 Wis. 255; Ex parte Coy, 127 U. S. 756; Bergemannv. Baelcer, 157 U. S. 655; Tv/rner v. Conkey, 132 Ind. 248; U. S. v. Horner, 143 U. S. 570; Burton v. Saunders, 16 Oreg. 51; Hauser v. ■State, 33 Wis. 678; Petition of Crandall, 34 Wis. 177; State ■ex rel. Welch v. Sloam, 65 Wis.-647; Benson v. McMahon, 127 U. S. 457; In re Cortes, 136 U. S. 330. Whether sec. 4466«, Stats. 1898, is declaratory of the common law or in amplifi■cation thereof, the complaint in question sets out either a. ■common-law or a statutory conspiracy. U. S. v. Fisher, 2 ■Crunch, 386; Encking v. Simmons, 28 Wis. 272; Weill v. Een-kfield, 54 Oal. Ill; People v. Sheldon, 139 N. Y. 251; People ■v. Petheram, 64 Mich. 252; Walker v. Cronin, 107 Mass. 555; Arthur v. Oakes, 63 Eed. Bep. 323; Ertz v. Produce Exchange, 79 Minn. 140; State v. Clidden, 55 Conn. 46; Delzv. Winfree, 80 Tex. 400; Barr v. Essex Trades Council, 53 N. J. Eq. 101; State v. Stewart, 59 Yt. 273; Casey v. Cincinnati T. Onion, 45 Eed. Bep. 135; Milwaukee M. <& B. Asso. v. Niezerowski, 95 Wis. 129; Catzow v. Buening, 106 Wis. 1; Plamt v. Woods, 176 Mass. 492; Pacific F. Co. v. Adler, 90 ■Cal. 110; Texas S. O. Co. v. Adoue, 83 Tex. 650; Craft v. Me Conoughy, 79 111. 346; Juddv. Harrington, 139 N. Y. 105 ; Sutherland, Stat. Const. §§ 229-254; State v. Crowley, 41 Wis. 271; 1 Wharton, Crim. Law, § 364; Van Rueden v. State, 96 Wis. 671; Jaelcson v. State, 91 Wis. 253; Ritehie v. People, 155 Ill. 98; State v. Loomis, 115 Mo. 307; Matter of Jacobs, 98 N. Y. 98; MqpJcins v. Oxley S. Co. 83 Eed. Rep. 912; Temperton v. Russell, [1893] 1 Q. B. Div. 715; Mogul S. S. Co. v. McGregor, 23 Q. B. Div. 598. The combination set out in the complaint, whether its purpose was solely to injure The Journal Company without resulting benefit to those in the combination, or to benefit themselves by driving a competitor out of business and thus establish a monopoly for itself, was unlawful, and the complaint in question stated an offense under the laws of Wisconsin. Mapstrick v. Ramge, 9 Neb. 390; Gregory v. Dulce of Brunswick, 6 M. & Gf. 205; Ilartmett v. Plumber’s S. Asso. 38 L. R. A. 194; Richardson v. Buhl, 77 Mich. 632; Beck v. Railway T. P. Union, 118 Mich. 497; Casey v. Cincinnati T. Union, 45 Fed. Rep. 135; Bout-weTl v. Marr, 43 L. R. A. 803; Jackson v. Stanfield, 137 Ind. 592; Van Morn v. Van Morn, 52 N. J. Law, 284; State v. Donaldson, 32 N. J. Law, 151; Ceurew v. Rutherford, 106 Mass. 1; Morris R. C. Co. v. Barclay C. Co. 68 Pa. St. 173; Wildee v. McKee, 111 Pa. St. 335; State v. Stewart, 59 Yt. 273; State v. Glidden, 55 Conn. 46; Santa Clacra Valley M. <& L. Co. v. Mayes, 76 Cal. 387; Sherry v. Perkins, 147 Mass. 212; People ex rel. Peabody v. Chicago G. T. Co. 130 Ill. 268; People v. Forth River S. R. Co. 121 N. Y. 582; Emery v. Ohio C. Co. 47 Ohio St. 320; Arnot v. Pittston & E. C. Co. 68 N. Y. 558; Pacific F. Co. v. Adler, 90 Cal. 110; Delz v. Winfree, 80 Tex. 400; Vulcan P, Co. v. Hercules P. Co. 96 Cal. 510; ChapUn v. Brown, 83 Iowa, 156; More v. Bennett, 140 Ill. 69; Crump v. Comm. 84 Ya. 927; Daclte v. Clothing C. <& T. Assembly, 77 Md. 396; Hester v. Continental B. Co. 161 Pa. St. 473; People v. Milk Exchange, 145 N. Y. 267; Longshore P. Co. v. Howell, 26 Oreg. 527; Distilling da G. F. Co. v. People ex rel. Att’y Gen. 156 Ill. 448; Bishop v. Am. P. Go. 15 7 Ill. 248; Dor emus v. Hennessy, 176 Ill. 608; Adams v. Brenan, 177 Ill. 194; Harding v. Am. G. Co. 182 Ill. 551; State ex rel. Snyder v. Portland JV. G. <& 0. Go. 153 Ind. 483; Murray v. McQarigle, 69 Wis. 483; Murray v. Buell, 74 Wis. 14; Smith v. Nippert, 76 Wis. 86, 79 Wis. 135; Bratt v. Swift, 99 Wis. 579; Martens v. O'Connor, 101 Wis. 18. The evidence taken before a committing magistrate cannot be reviewed by the officer issuing the writ of habeas corpus. Schall v. Bly, 43 Mich. 401; Oarver v. Ghapell, 70 Mich. 51; Lord v. Wirt, 96 Mich. 418; Birdsall v. Phillips, 17 Wend. 464; People v. Gommr's of East Hampton, 30 N. Y. 76; In re Bion, 59 Conn. 372; Exporte Jones, 96 Fed. Rep. 200; V. S. v. Horner, 143 U. S. 570;- Merrimam, v. Morgan, 7 Oreg. 68; People ex rel. Hanziger v. House of Mercy, 128 N. Y. 180; Roberts v. Warren, 3 Wis. 740; Owens v. State, 27 Wis. 456; Baizer v. Lasch, 28 Wis. 268; State v. Huele, 29 Wis. 202; Gallon v. Sternberg, 38 Wis. 539; Wright v. Wright, 74 Wis. 439; Fulton v. State, 103 Wis. 238. The orders and the commitments issued thereon are sufficient successfully to withstand challenge on this proceeding. Howard v. ü. S. 75 Fed. Rep. 986; People ex rel. Trainor v. Baker, 89 N. Y. 461; People ex rel. Johnson v. Hevons, 1 Hill, 154; Ex parte Wilson, 114 U. S. 422; Turner v. People, 33 Mich. 363; Gar-gen v. People, 39 Mich. 549; Ex parte Gibson, 31 Cal. 619; State v. Bloom, 17 Wis. 521; Wilkinson v. State, 106 Ala. 23; State v. Cook, 92 Iowa, 484; Pointer v. U. S. 151 U. S. 418; Rindskopf v. State, 34 Wis. 217, 224; State v. Leicham, 41 Wis. 573; Hamilton's Case, 51 Mich. 174; Sewnott's Case, 146 Mass. 489; secs. 3429, 4774, Stats. 1898; sec. 7, ch. 6, Laws of 1895; 4 Ency. of PL & Pr. 576; People ex rel. Hutchinson v. Murphy, 58 N. E. Rep. 984; Ex parte Kellogg, 6 Yt. 511.</p> <p>To the point that the offense of conspiracy was sufficiently charged in the complaint, in addition to authorities cited by the plaintiff in error, they cited Sutherland, Stat. Const. §§ 225, 229, 235, 254; 1 Kent, Comm. 462; Martin v. Hunter’s Lessee, 1 Wheat. 304, 326; Rex v. Turvey, 2 Barn. & Aid. 522; 1 Bishop, Grim. Prac. (2d ed.), §§ 418, 419; Toledo, A. A. & H. M. R. Go. v. Perm. Co. 54 Eed. Rep. 730; Continental Ins. Co. v. Board of Fwe Underwriters, 67 Fed. Rep. 310; Bromage v. Prosser, 4 B. & C. 255; Hilton v. Eck-ersley, 6 El. & Bl. 47, 74; Old Dominion 8. 8. Co. v. McKenna, 30 Fed. Rep. 48; Thomas v. G, JV. O. di T. R. Co. 62 Fed. Rep. 803, 818; Bohn Mfg. Co. v. Hollis, 54 Minn. 223; Annis v. People, 13 Mich. 511. Even if the complaint did not charge an offense, it was error to discharge the defendants without an examination of the testimony to ascertain if the offense which the complaint purported to charge had been committed. Sec. 3429, Stats. 1898; State v. Bloom, 17 Wis. 521.</p> <p>They contended, inter ■alia, that in habeas corpus proceedings to review a commitment by a police justice or other examining magistrate, the question whether there was any evidence of an offense, is now open for review, as it was at the date of the adoption of the constitution. Secs. 3425,4791, 4792, Stats. 1898; In re Henry, 13 Mise. (N. Y.), 734; Ex parte Dimmig, 74 Cal. 164; Ex parte Sternes, 82 Cal. 245; In re Snell, 31 Minn. 110; State v. Hayden, 35 Minn. 283; Ex parte Bailey, 39 Fla. 726; Ex parte Jones, 96 Fed. Rep. 200; Ex parte Parker, 11 Neb. 309; 9 Ency. of PI. & Pr. 1020; 16 id. 860, 861; Spelling, Extr. Rel. §§ 1299, 1300; 9 Am. & Eng. Ency. of Law, 193; 15 Am. & Eng. Ency. of Law (2d ed.), 199; Church, Habeas Corpus, §§ 231-236. A complaint or indictment charging a statutory offense in the language of the statute is sufficient except that, if the words of the statute do not of themselves fully, directly, and expressly, without any uncertainty or ambiguity whatever, set forth all the elements necessary to constitute the offense intended to be punished, or, if they include within their scope acts or conduct which is not criminal or deserving of punishment and which it cannot be supposed the legislature intended to make punishable, it is not sufficient to charge the alleged offense in the language of the statute. Steuer v. State, 59 Wis. 472; Gel-zenleuchter v. Niemeyer, 64 Wis. 316; Peters v. State, 66 Wis. 341; Fischer v. State, 101 Wis. 23; State v. Crowley, 41 Wis. 271; U. S. v. Carll, 105 U. S. 611; Pettibone v. H. S. 148 U. S. 197; H. S. v. OruiJeshanh, 92 U. S. 542; U. S. v. Simmons, 96 U. S. 360; Comm. <o. Clifford, 8 Cush. 215; Comm, v. Bean, 14 Gray, 52; Comm. v. Filburn, 119 Mass. 297;, U. S. v. Britton, 108 U. S. 199; U. S. v. Pond, 2 Curtis, C. C. 265; Ü. S. v. Mess, 124 U. S. 483; Ledbetter v. TJ. S. 170' U. S. 606; In re Greene, 52 Red. Rep. Ill; Queen v. Pede, 9 Adol. & El. 686; Miles v. State, 94 Ala. 106; State v. Howard, 66 Minn. 309, 61 Am. St. Rep. 403; State v. Jadtson, 39 Conn. 229; State v. Murray, 41 Iowa, 580; Quinn v. State, 35 Ind. 485; State v. Williams, 32 S. C. 123; Luter v. State, 32 Tex. Or. 69; TT. S. v. Patterson, 55 Fed. Rep. 605; St. Louis & S. F. B. Co. v. State, 57 S. W. Rep. 796. The complaint as a whole states no offense known to the law. Mogul S. S. Co. v. McGregor, 23 Q. E. Div. 598; Mogul S. S. Co. v. McGregor, [1892] App. Gas. 35; Allen v. Flood, [1898] App. Cas. 1; 21 Reports Am. Ear Asso. (1898), 335; Nat. P. Asso. v. Cummvngs, 62 Alb. L. J. 68; Déla v. Win-free, 80 Tex. 400; Cooley, Torts, 125; Kimball v. Harman, 34 Md. 407; Laverty v. Vana/rsdale, 65 Fa. St. 507; Long-shore P. Co. v. Howell, 26 Oreg. 527; Payne v. W. de A. B. Co. 13 Lea, 507; Hey wood v. Tillson, 75 Me. 225; Ba/y croft v. Tayntor, 68 Yt. 219; Bede v. By. T. P. Asso. 118 Mich. 497; Doremus v. Hennessy, 176 Ill. 608; Barr v. Fssex Trades Council, 53 N. J. Eq. 101; In re Greene, 52 Fed. Rep. 118; People v. Powell, 63 N. Y. 88; Queen Ins. Co. v. State, 86 Tex. 250; ¿Etna Ins. Go. v. Gomm. 51 S. W. Nep. 624; Continental Ins. Go. v. Board of F. Underwriters, 67 Fed. Nep. 310; Orr v. Home Hut. Ins. Co. 12 La. Ann. 255; Hunt v. Simonds, 19 Mo. 583; Snow v. Wheeler, 113 Mass. 186; Ga/rew v. Rutherford, 106 Mass. 14; BoJm Mfg. Co. v. Hollis, 54 Minn. 223; Macauley Bros. v. Tierney, 19 N. I. 255; Brewster v. Miller's Sons, 38 L. N. A. 505; Chambers v. Baldwin, 91 Ky. 121; Bourlier Bros. v. Macauley, 91 Ky. 135; Goeur D'Alene G. <& M. Go. v. Miners' Union, 51 Fed. Nep. 260; Farmers' L. <& T. Go. v. N. P. R. Go. 60 Fed. Nep. 815; Arthur v. Oahes, 63 Fed. Nep. 310; Boyson v. Thorn, 98 Cal. 578; Schulten v. Bavarian B.-Go. 96 Ky. ^i^Dueber W. G. Mfg. Go. v. Howard W. & G. Go. 66 Fed. Nep. 645; U. S. v. Addyston P. <& S. Go. 85 Fed. Nep. 271; Casey v. Cincinnati T. Union, 45 Fed. Nep. 135; Bowen v. Matheson, 14 Allen, 499; Yegelahn v. Guntmer, 167 Mass. 92; Dueber W. G. Mfg. Go. v. Howard W. & G. Go. 55 Fed. Nep. 851; see also Htvb-tley v. Simmons, [1898] 1 Q. B. Div. 181; Hulbuck <& Sons v. Wilkinson, H. c& O. [1899] 1 Q. B. Div. 86. The words “wilful” and “wilfully,” in common parlance, mean intentionally, as distinguished from accidental and involuntarily; in the penal statutes, they mean with evil intent, with legal malice, without ground for believing the act to be lawful. Doctor v. Riedel, 96 Wis. 158; Metzger v. Hochrein, 107 Wis. 267; Macauley Bros. v. Tierney, 19 N. I. 255; Anderson, Law Diet. “INJURY,” “Wilful,” “Wilfully;” Mogul S. S. Go. v. McGregor, 23 Q. B. Div. 612; Pa/rker v. Griswold, 17 Conn. 302; Ghasemore v. Richards, 7 Ií. L. Cas. 349; Mayor of Bradford v. Pickles, [1895] App. Cas. 587; State v. Preston, 34 Wis. 675; State v. Oastle, 44 Wis. 670; State v. Smith, '52 Wis. 136, 137; Potter v. U. S. 155 ü. S. 446; Comm. v. Kneeland, 20 Pick. 220; Wass v. Stephens, 128 N. T. 123. The word “ maliciously " means a wicked intention to do an injury. Tuttle v. Bishop, 30 Conn. 85; U. S. v. Rnggles, 5 Mason, 192; Dexter v. Spear, 4 Mason, 118; Mogul S. S. Go. v. McGregor, 23 Q. B. Div. 612; Anderson, Law Diet. “Malice.” When the act done is not unlawful the motive is immaterial. Boater v. Riedel, 96 Wis. 158; Metzger v. Hochrem, 107 Wis. 267; Stevenson v. Newnham,!^ Eng. C. L. 285; Bewjamin v. Wheeler, 8 Gray, 409; Rcmdall v. Hazel-ton,, 12 Allen, 415; Frazier v. Brown, 12 Ohio St. 294; Ghat-field v. Wilson, 28 Yt. 49; Ohasemore v. Richards, 7 H. L. Gas. 349; Mayor of Bradford v. Pickles, [1895] App. Cas. 587; Mdhcm v. Brown, 13 Wend. 261.</p> <p>contended, inter alia, that mere joint action for the purpose of trade competition does not come within the purview of sec. 4466a, Stats. 1898. Hunt v. Simonds, 19 Mo. 583; Orrv. Home Mut. Ins. 'Go. 68 Am. Dec. 770; TEt/na Ins. Go. v. Comm. 45 L. B. A. 355; Beechley v.,Muh)ille, 102 Iowa, 602; Allgeyer v. Lowisicma, 165 U. S. 578; Folwell v. State, 49 N. J. Law, 31; In re Grice, 79 Fed. Bep. 641; Mogul S. S. Co. v. McGregor, 21 Q. B. Div. 544; Macauley B?'os. v. Tierney, 19 B. I. 255; Bohn Mfg. Go. v. Hollis, 53 Minn. 223, 55 N. W. Bep. 1119; Lough v. Outerbridge, 143 N. Y. 271; Bueber W. O. Mfg. Go. v. Howard W. <& O. Go. 66 Fed. Bep. 644; Walicer v. Cronin, 107 Mass. 555; Bélz v. Winfree, 80 Tex. 400; Boysen v. Thorn, 21 L. B. A. 233; Glencoe L. <& G. Go. v. Hudson Bros. G. Go. 138 Mo. 439; Wegelahn v. Gimtner, 167 Mass. 92; Frorer v. People, 16 L. B. A. 492; Chicago, B. dé Q. R. Co. v. Ohicago, 166 IT. S. 226. Assuming that the mittimus under which the sheriff attempted to justify his detention of defendant was sufficient on its face, it was avoided by showing that it was issued in a proceeding in which the police justice had no jurisdiction to issue a warrant and cause an arrest because no complaint clearly stating an offense was filed, nor jurisdiction to hold to bail because the evidence showed no offense had been committed. .Sec. 4776, Stats. 1898; Ex parte Kearny, 55 Cal. 212; In re Gorryell, 22 Oal. 178; Fxpccrte Mirande, 73 Gal. 365; Bushel's Oase, T. Jones, 13; Housh v. People, 75 Ill. 487; In re Eberle, 44 Kan. 472; Wilmot, Notes & Op. 107; State ex rel. Milwaukee v. Newman, 96 Wis. 273; In re Eldred, 46 Wis. 530; Frazier v. Tierner, 76 Wis. 562; State ex rel. Larkin v. Ryam, 70 Wis. 676; State ex rel. Att'y Gen. v. Eau Claire Circuit Court, 97 Wis. 1; Ex parte Siebold, 100 U. S. 376; Ex parte Jackson, 45 Ark. 158; In re Barber, 75 Feci. Rep. 980; Ex parte Bailey, 23 So. Rep. 552; In re Hacker, 73 Fed. Rep. 464; Ex parte Eenyon, 5 Dill. 389; Nelson v. Cutter, 3 McLean, 326; Ex parte Hays, 25 Fla. 282; Smith v. Claus-meier, 136 Ind. 105; Exponte Parker, 11 Neb. 309; Lueck v. Heisler, 87 Wis. 644; McGuire v. Bolen, 94 Wis. 51; Steen v. Norton, 45 Wis. 412; Darling v. Conklin, 42 Wis. 478; State ex rel. Kellogg v. Gary, 33 Wis. 104; Sitzman v. Pac-quette, 13 Wis. 302; 1 Smith, Lead. Cas. (7th. ed.), 1095; In re Bormer, 151U. S. 242; People ex rel. Tweed v. Liscomb, 60 N. Y. 567. If the words of sec. 4466a, “ injuring another,” are to be taken in their popular sense, then the statute is an unwarranted interference with the liberty of the citizen, and leaves him subject to prosecution and possible conviction in all cases of professional and business competition, where there is certainly injury in the sense of loss, impairment, or diminution of trade, business, or professional reputation, and where the jury choose to find that the exercise by the accused of his legal right was wilful or malicious, and such statute is also repugnant to the XIVth amendment to the constitution of the United States, and to sec. 1, art. I, Const. Wis. In re Grice, 79 Fed. Rep. 627; Allgeyer v. Louisiana, 165 U, S. 578; Lawton v. Steele, 152 U. S. 133; People v. Gillson, 109 N. Y. 399; State v. Dalton, 48 L. R. A. 775; State v. Julow, 29 L. R. A. 257; Metzger v. Hochrein, 107 Wis. 267; Rideout v. Knox, 148 Mass. 368.</p> <p>contended, vnter alia, that the commitment is barren of the statement that the alleged “ conspiracy to injure ” was done “ wilfully and. maliciously ” as required by the provisions of sec. 4466a, Stats. 1898. 1 Arch. Crim. Pr. & PI. (8th ed.), note p. 151. The commitment should also conclude “ against the form of the statute in that case made and provided.” 1 Arch. Crim. Pr. & PL (8th ed.), note p. 151. By demurrer to the return, the whole question of the legality of the commitment, both in respect to its form, substance, and the validity of the law under which complaint is made, is fairly presented. In re Booth, 3 Wis. 23; In re Booths 3 Wis. 157; In re Eldred, 46 Wis. 530; In re Milburn, 59 Wis. 24.. If the sheriff had returned the complaint, warrant, or certified copy of minutes of the court, as the basis or authority to detain the prisoner, they might have tended to cure defects in the commitment. People ex rel. Trwmor v. Baker, 89 N. Y. 465; Jo ah v. Sheets, 99 Ind. 328. A combination to diminish an individual’s gains or profits is lawful or unlawful according to the means employed (2 Wharton, Crim. Law [10th ed.], § 1337; Comm. ro. Bunt, 4 Met. 111-134), and hence the complaint or indictment must show the nature of the unlawful means employed. 2 Wharton, Crim. Law, 2322, 2323. No conspiracy, except to commit felony upon the person of another, or to commit arson or burglary, is deemed a conspiracy, and is to be punished as such, unless some act, besides such agreement, be done to effect the object thereof, by one or more of the parties. Sec. 4568, Stats. 1898. The act to be done in pursuance of the conspiracy must be quasi-criminal or immoral. 4 Am. & Eng. Ency. of Law, 598, note 8; Id. 604. The act is not indictable unless the same act done by one would have involved a criminal injury. Euttley v. Simmons, [1898] 1Q. B. Div. 181. Neither of the defendants is charged with an integral offense, but an integral part of one, and to complete it concert is necessary. Shannon v. Comm. 14 Pa. St. 228. When concert of action is necessary to offense, conspiracy does not lie. 2 Wharton, Orim. Law, (10th. ed.), § 1339; Shannon v. Comm. 14 Pa. St. 226; Miles v. State, 58 Ala. 390.</p> <p>On December 7, 1900, a reargument was ordered of the following question only: “Does the word ‘injuring’ in sec. 4466a, Stats. 1898, mean anything more than inflicting an injury for which a civil action for damages can be maintained, and if so is the law constitutional.”</p> <p>The cause was reargued January 15, 16,1901.</p> <p>For the plaintiff in error there was a brief signed by the Attorney General, and by Wmkler, Flanders, Smith, Bott-um <& Vilas, W. H. Austin, and A. C. Zfmbreit, attorneys for the relator, and oral argument by J. G. Flanders.</p> <p>The word “ injuring ” in the connection in which it is used has but one meaning, and that is its popular and ordinary meaning. Consequently there is no room for interpretation. The word is never used in the technical sense sought to be imputed to it, that is, in the limited sense of such acts of hurt or harm as the law would take cognizance of in a civil action for damages, except when the matter of civil damages is the subject in reference to which it is used; in other words, except when it is intended to express specifically the idea of a wrong which may be redressed in a civil action. 1 Kent, Comm. 462; Wdburton v. Lovelamd, 1 Hud. & Brooke, 648; Toldervy v. Colt, 1 Mees. & W. 264; Favrlee v. Corinth, 9 Vt. 269; 23 Am. & Eng. Ency. of Law, 298, notes 1, 2; Sutherland, Stat. Const. §§229, 237, 254; Ramson v. State, 19 Conn. 299; C. S. v. Gooding, 12 Wheat. 460; Rutherford’s Inst. B. 2, ch. 7, sec. 3; Smith v. State, 66 Md. 215; Newell v. People, 7 N. T. 97; Woodbury v. Berry, 18 Ohio St. 462; People ex rel. Hughes v. May, 3 Mich. 598; Hawkins, P. C.,B. 1, ch. 27, sec. 2; Rex v. Fecles, 1 Leach, 274; 3 Ohitty, Crim. Law, 1139; 2 Arch. Crim. Pr. & PI. 1829; Crump v. Comm. 84 Ya. 927; State v. Stewart, 59 Yt. 273; State v. Donaldson, 82 N. J. Law, 151, 156; State v. Glidden, 55 Conn. 46; People v. Petheram, 64 Mich. 252; State v. Burnham, 15 N. H. 403; Comm. ex reí. Chew v. Ccur-lisle, Brightly, 36; Curran v. Cálen, 152 N. T. 33; Thomas v. C., N. O. & T. II. Co. 62 Eed. Eep. 17; Luche v. Clothing Cutters & T. Assembly, 19 L. E. A. 408; State v. Buchanan, 5 E & J. 317; Eddy, Comb. & Consp. § 340; Green-hood, Pub. Pol. 651; Bor emus v. Hennessy, 176 Ill. 608; Barr v. Essex Trades Council, 53 N. J. Eq. 101; Hilton v. Eck-■ersley, 6 El. & Bl. 47, 74; Old Dominion 8. 8. Co. v. McKenna, 30 Eed. Eep. 48; Casey v. Cincinnati T. Union, 45 Eed. Eep. 138; Gallwn v. Wilson, 127 IT. S. 547; Mogul S. S. Co. v. McGregor, 23 Q. B. Div. 598; Continental Ins. Co. v. Board •of F. Underwriters, 67 Eed. Eep. 319; Temperton v. Bussell, .[1893] 1 Q. B. Div. 715; Walker v. Cronin, 107 Mass. 555; Graham v. St. Charles Si. JR,. Co. 27 L. E. A. 416; Arthur v. Oakes, 63 Eed. Eep. 310; Ertz v. Broduce Exchange, 79 Minn. 140; Hopkins v. Oxley S. Co. 83 Eed. Eep. 918.</p> <p>The authorities conclusively establish the following propositions:</p> <p>1. The civil action of conspiracy at common law was a ■substantive right of action, and did not necessarily depend upon a right independent of the conspiracy, (a) The fact of the combination and the element of actual malice might give a right of action where, without the conjunction -of the combination and the element of malice, no action would lie. (b) In order to give rise to a right of civil .action, actual damage, capable of legal measurement, must have resulted. Beck v. Railway T. P. Union, 42 L. E. A. 407, 419; Doremus v. Hennessy, 43 L. E. A. 797, 802; Inter-Oceam, Pub. Co. v. Associated Press, 184 Ill. 438; Ertz v. Produce Exchange, 79 Minn. 140; Walker v. Cronin, 107 Mass. 562; Délz v. Winfree, 80 Tex. 400; Graham v. St. Charles St. R. Co. 47 La. Ann. 214; Hopkins v. Oxley S. Co. 28 C. 0. A. 99.</p> <p>2. The crime of conspiracy at common law was a substantive offense, not necessarily dependent upon the criminality or unlawfulness of the thing done, or of the measures by which it was to be accomplished. It has its foundation in public policy and in the peace and good order of society, and has no necessary connection whatever with any question of civil damages or pecuniary loss to particular individuals. Rex v. Leigh (Maeklvn's Oase), 2 Camp. 312, note; Clifford v. Brandon, 2 Camp. 358; Bout/well v. Marr, 71 Vt. 6; 1 Kent, Comm. 402; MeGvnley v. Laycodc, 94 Wis. 205; People v. Sheldon, 139 N. T. 251. The act giving to the word “injury” its ordinary meaning is not unconstitutional. Foster v. Essex Bank, 16 Mass. 270; Wadsworth v. U. P. R. Go. 18 Colo. 600; Probaseo v. Raine, 50 Ohio St. 390; Beymcm v. Blade, 47 Tex. 558; People v. Rosenberg, 138 N. Y. 410; Purkee v. Jmiesville, 28 Wis. 464.</p> <p>It must be a very extreme case which would warrant the court in holding a statute unconstitutional, unless some specific provision of the constitution can be pointed out which was violated. The statute in question does not unduly restrict the freedom of the right of the individual to carry on his own business in his own way. The police power of the state is, and must be from its very nature, incapable of any very exact definition, but all courts agree that it extends to all regulations affecting the lives, limbs, health, comfort, good order, morals, peace, and safety of society, and therein may be exercised on many subjects and in numerous ways. The statute in question does not conflict with any provision of the state constitution or with the Fourteenth amendment to the United States constitution. Allgeyer v. Louisiana, 165 U. S. 589; Munn v. Illinois, 94 U. S. 113, 124; Slaughter Bouse Oases, 16 Wall. 62; Barbier v. Connolly, 113 U. S. 31; Soon Ring v. Crowley, 113 II. S. 709; Thorpe v. R. <& B. R. Co. 27 Vt. 140, 149; State v. Hevnema/nn, 80 Wis. 253, 256; Baker v. State, 54 Wis. 372; State ex rel. Larkin v. Ryan, 70 Wis. 681. As instances: Quarantine regulations. Watertown v. Mapo, 109 Mass. 315; Beer Co. v. Mass. 97 IJ. S. 25; Milwaukee v. Gross, 21 Wis. 24-1; Taylor v. State, 35 Wis. 298. Eegulation of the erection of buildings in certain limits. Cooley, Const. Limi (6th. ed.), 39; Wadleigh v. Gilma/n, 12 Me. 403; Vanderbilt v. Adams, 7 Cow. 349; Baker v. Boston, 12 Pick. 184. Eegulation of the practice of medicine. Dent v. West Virginia, 129 IJ. S. 114; Hawker v. Hew York, 170 U. 8. 189; People v. Phippen, 70 Micb. 6. Eegulating practice of dentistry. Ferner v. State, 151 Ind. 247; Oomm. v. Gibson, 7 Pa. Dist. Eep. 386; State v. Vcmdersluis, 42 Minn. 129; Sicote v. Creditor, 44 Kan. 565. Eegulating pharmacists. State v. Heinemarm, 80 Wis. 253. Pure food laws. People v. West, 106 N. T. 293; People v. Gipperly, 101 N. Y. 634; State v. Campbell, 64 N. H. 402. .Oleomargarine laws. People v. Aerensberg, 105 N. Y. 123; Comm. v. Humtley, 156 Mass. 236; State v. Marshall, 64 N. H. 549; Powell v. Pennsylvania, 127 U. S. 678; State v. Addington, 77 Mo. 110; State ex rel. Weideman v. Morgan, 55 Minn. 183; Palmer v. State, 39 Ohio St. 236. Eegulation of hawkers and peddlers. Morrill v. State, 38 Wis. 428.</p> <p>Even should the word “ injuring ” be held to mean no more than to inflict an injury for which a civil action would lie, the complaint in this case states an offense within the statute, the combination alleged having all the elements of a boycott. Anderson, Law Diet. “Boycott;” Moores <& Co. v. Bricklayers' Union, 7 Ey. & Corp. Law J. 108; Toledo, A. A. de H. M. P. Co. v. Penn. Co. 54 Eed. Eep. 730, 738; State v. Donaldson, 32 N. J. Law, 151; Old Dominion S. S. Co. v. McKenna, 30 Eed. Eep. 48; Lucke v. Cincmnati G. <& T. Assembly, 19 L. E. A. 408; Thomas v. Cincinnati, H. O. & T. B. Co. 62 Fed. Eep. 17; Arthur v. Oakes, 63 Fed. Eep. 310.</p> <p>They contended, inter alia, that the statute in question should be construed strictly, because (a) it is a penal statute, (b) in derogation of the common law, (c) of common right, and (d) interferes with legitimate business competition. Black, Interp. Stats. 300, 301; Sutherland, Stat. Const. §§ 346, 349, 350, 3T0; Stone v. Lcmnon, 6 Wis. 497; Cohn v. Reeves, 40 Wis. 393; Cooh v. M., St. P. & S. S. M. R. Co. 90 Wis. 646. Inasmuch as the word “injuring ” has two distinct meanings, one the popular and broad meaning and the other a peculiar and appropriate meaning in the law, the latter meaning should be adopted. Subd. 1, sec. 4971, Stats. 1898; Sutherland, Stat. Const. §§ 253, 254; Black, Interp. Stats. 232, 233; Western Onion T. Co. v. Scir-dle, 108 Ind. 229; Buchner v. Real Estate Ranh, 5 Ark. 536; Rillhouse v. Chester, 3 Day, 211. Notwithstanding the liberal construction of the bill of rights (sec. 9, art. I, Const.) there are still acts damnum absque inguna in this state. Metzger v. Rochrein, 107 Wis. 267; Duffies v. Duffies, 76 Wis. 374; Doctor v. Riedel, 96 Wis. 158; Reiss v. M. cíe L. W. R. Co. 69 Wis. 555. As examples where the word “ injury ” or “injured” has been held to mean such a legal wrong as would be the subject of an action for damages at common law, see Pennsylvania R. Co. v. Merchant, 119 Pa. St. 541; Pennsylvania 8. V. R. Co. v. Walsh, 124 Pa. St. 544; Ja/nesville v. Ca/rpenter, 77 Wis. 238; Brittle Silver Co. v. Rust, 51 Pac. Bep. 526; Jordon v. State, 142 Ind. 427; 11 Am. & Eng. Ency. of Law, 1, note -1; People v. Roward, 17 Cal. 63; Worth Vernon v. Voelger, 103 Ind. 314; Smith v. Wilcox, 47 Yt. 537; Woodruff v. North B. G. M. Co. 18 Fed. Bep. 753, 781; Talcott v. Buffalo, 125 N. Y. 280; Chittenden v. Wwrster, 152 N. Y. 435; Whitney, v. Ri/rsch, 39 Hun, 325; Gibbs v. McNeeley, 102 Fed. Bep. 594.</p> <p>In sec. 4466a, Stats. 1898, the words “ wilfully and maliciously ” modify the words “injuring another.” If this word “injuring” be given- its popular meaning, then we haye the anomaly of an act punishing as criminal a mere agreement to do a lawful act by any lawful means, if done wilfully or maliciously. It makes the motive, the mere mental operation, the corpus delicti, irrespective of any overt act. State v. Olark, 29 N. J. Law, 96; OoJm v. Neeres, 40 Wis. 393; Folwell v. State, 49 N. J. Law, 31. Where a court has sustained a civil action for damages or for an injunction, such decision affirms that the acts of which the plaintiff complains were such as constituted an injury within the legal meaning of the word. Strikes and boycotts under many different circumstances, and employing many different means, have been held to constitute such injury, but always excluding combinations for competitive purposes. Barr v. Essex Trades Council,.53 N. J. Eq. 101; Ertz v. Produce Exchange, Y9 Minn. 140; Delz v. 'Winfree, 80 Tex. 400; Walker v. Gronin, 10Y Mass. 562; Graham v. St. Charles St. P. Go. 4Y La. Ann. 214; Vegélahn v. Guntmer, 16Y Mass. 92; Beck v. Bailway T. P. Onion, 118 Mich. 49Y; Gasey v. Cincinnati T. Onion, 45 Fed. Rep. 135; Ducke v. Clothing ' Cutters & T. Assembly, YY Md. 396; 28 Am. L. Rev. 4Y, 80-84; 21 Am. L. Rev. 509, Y64; Curran v. Galen, 152 N. Y. 33; Hollenbeck v. Bistine, 105 Iowa, 488. If the words “injuring another by any means whatever” be interpreted in their broad popular meaning, and thereby the statute be extended to include all agreements to do lawful acts by lawful means which may prejudice another in his reputation, trade, business, or profession, under the facts in the case at bar, it violates rights guaranteed by the constitution of this state, viz: Secs. 1, 8, and 13, art. I,'Const. Wis. It also violates the XIVth amendment of the federal constitution, which declares:</p> <p>“No state shall enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or propel ty without due process of law,” etc.</p> <p>The liberty of enjoying one’s property either singly or conjointly with others in any legal manner; of engaging singly or conjointly with others in any lawful trade or business; and of contracting with others for that purpose, are rights guaranteed to every citizen, although injury in the broad sense may result to some one. To deny citizens such rights, by making it a crime to exercise one’s legal rights, takes away all “ liberty,” deprives him of his property without any compensation, and holds him to answer for a criminal offense without due process of law. State v. Julow, 129 Ho. 163, 50 Am. St. Rep. 413, and note; Matter of Jacobs, 98 N. T. 98; People v. Gillson, 109 N. Y. 389, 405; Godcharles v. Wige-man, 113 Pa. St. 431; Comm. v. Perry, 155 Mass. 117; State v. Wyatt, 48 L. R. A. 265; State v. Loomis, 21 L. R. A. 789, and note; State v. Goodwill, 33 W. Ya. 179, 25 Am. St. Rep. 863, 881, note; Palmer v. Tingle, 55 Ohio St. 423; Shaver v. Penn. Go. 71 Fed. Rep. 931; Vilas v. McDonough Mfg. Go. 91 Wis. 617; Mallory v. La Grosse A. Go. 80 Wis. 180; Jones v. Great Southern F. II. Go. 79 Ped. Rep. 477, 482; In re Fight Hour Law, 21 Colo. 29; Holden v. Hardy, 169 U. S. 366; Low v. Pees P. Go. 41 Neb. 127; In re House Bill No. WS, 21 Colo. 27; Frorer v. People, 141 Ill. 171,16 L. R. A. 492; Bichie v. People, 155 Ill. 98, 46 Am. St. Rep. 315, and note; Hoarding v. People, 160 Ill. 459; Chicago v. Netcher, 183 Ill. 104, 48 L. R. A. 261, and note; Puhstrat v. People, 185 Ill. 133, 49 L. R. A. 181; Ex parte Bailey, 23 So. Rep. 553; State v. Dalton, 48 L. R. A. 775; Valentine v. Berrien Circuit Judge, 83 N. W. Rep. 594; Hulvnv. Gommon Oouncil qf Detroit, 70 Mich. 534; In re Ah Jow, 29 Fed. Rep. 181; Allgeyer v. Louisiana, 165 U. S. 578; Frisbie v. D. S. 157 U. S. 160, 165; Chicago, B. & Q. P. Go. v. Chicago, 166 U. S. 226; Butchers' Union S. H. & L. S. L. Go. v. Orescent Oily L. S. L. & S. H. Go. Ill U.. S. 757; Lawton v. Steele, 152 U. S.. 133; In re Grice, 79 Fed. Rep. 627; In re Marshall, 102 Fed. Rep. 323. It is obvious from the cases cited that a statute such as sec. 4466a broadly construed finds no support in the police power, but is clearly an unlawful interference with the exercise of private rights. No question of public health, public safety, or public morals is involved. Lawton v. Steele, 152 U. S. 136; State v. Dalton, 48 L. R. A. 775; State v. Loomis, 21L. R. A. 789.</p>

<p>Appeal from a judgment of the circuit court for Marquette county: R. G-. Siebeckeb, Circuit Judge.</p>

<p> Master and servant: Contract of employment: Consent to discharge: Evidence. </p> <p>1. Where a servant, employed for a definite term, consents to the termination of his relations with his employer when he is discharged, he cannot recover wages for the balance of his term.</p> <p>2. In an action by a servant, who claimed to have been wrongfully discharged before the expiration of his term of employment, to recover for wages which acprued after the discharge, the evi- " dence — stated in the opinion — is held to sustain a finding of the jury that such termination was by the consent of both parties.</p> <p>3. In such a case, letters of the servant, written after his discharge but before the expiration of the term, are'competent as admissions on his part, so far' as they are inconsistent with his claim that he was discharged against his will.</p>

Babish, Circuit Judge. One Alonzo Knight was elected county treasurer of Bay-field county for the term commencing January, 1899. He executed a bond, with the plaintiffs, defendant, and others as sureties, to the county, and entered upon the discharge of his duties. During his term, Knight became a defaulter, and thereafter an action was commenced on his bond against his- sureties. Service was made,on seven of the sureties, including the plaintiffs herein.

<p> Logs and Umber: Liens: Assignment: Payment: Partnership: Practice: Judgment: Appeal: Case: Briefs: Costs. </p> <p>1. The mere fact that one is a partner in a firm owning a part of logs driven under a “pooling ” arrangement between the owners thereof, does not prevent him from purchasing lienable claims in his_ own behalf, and enforcing them against the logs driven, and such purchase does npt constitute payment nor extinguish the liens.</p> <p>2. Where part of the defendants were in default, a general judgment dismissing the complaint will be reversed on appeal, as no judgment could properly be rendered in favor of such defaulting defendants.</p> <p>3. A “case” which contains neither pleadings, verdict, charge, exceptions, nor evidence, except selections from the testimony of certain witnesses printed either as partisan statements or incomplete and misleading quotations, does not comply with Supreme Court Rule VIII, requiring so much of the record to be printed as shall be necessary to a full understanding of the question presented for review; and no costs can be taxed for printing it.</p> <p>4. Under Supreme Court Rule XXVII no costs will be allowed for printing a brief containing language disrespectful to the trial court.</p>

0. SilveRthokw, Circuit Judge. Appellants contended, inter alia, that the city of Tomahawk had no power to adopt the general city charter law, and consequently was not subject to the limitation therein ■contained on the power of taxation. 16 Am. & Eng.

<p> Foreign wills: Authentication: Authority of executor to convey land: Construction of statutes: Evidence: Deeds: Record copy: Interline-ations: Tax deeds: Payment of tax: Treasurer’s books as evidence: Redemption from tax. </p> <p>1. Sec. 2295, Stats. 1898 (providing that, when a will devising lands in Wisconsin has been duly probated in any other state or territory, a duly authenticated copy of such will may be recorded in the office of the register of deeds of any county in which such lands are situated, and shall then have the same effect to pass title to such lands as if probated in Wisconsin, and that the record of such copy shall be presumptive evidence of the authority of any person authorized by such will to convey or dispose of such lands), and sec. 8267 (providing that, upon the filing of an authenticated copy of the original appointment of á foreign executor or administrator in the proper county court, he may exercise any power over the estate, including sales or assignments of the same, which an executor or administrator duly appointed by the proper court of Wisconsin can exercise), are independent sections, intended to cover different situations, sec. 2295 covering cases where, by the terms of the will, lands are devised or authority given to convey, and sec. 3267 cases where the executor or administrator must obtain judicial authority to sell or convey.</p> <p>2. If the papers attached to the copy of a will, which devised the real property of the testator wherever situate to S. W., appointed her executrix, and authorized her to sell said real estate, show that the will was duly admitted to probate in another state, and are properly authenticated, the copy becomes entitled to record in the office of the proper register of deeds in this state under sec. 2295, and when so recorded becomes presumptive evidence of the authority of S. W. to convey the lands of the testator in this state.</p> <p>8. A duly authenticated copy of a will probated in Pennsylvania did not show any formal order or judgment admitting the will to pro-bata A decision of the supreme court of Pennsylvania, introduced in evidence, and the testimony of a member of the Pennsylvania bar, showed that a formal order or decree of probate is not usual in that state, and that the papers offered in evidence would be admitted in any court of Pennsylvania as proving that the will in question was properly proven and admitted to probate. Held that, under seo. 1, art. IV, Const, of IT. S. (providing that full faith and credit shall be given in each state to the public records and judicial pro- ■ ceedings of every other state), the copy of the will was admissible in evidence in the courts of Wisconsin.</p> <p>4. In an action to quiet title plaintiff introduced in evidence, as proof of his title to lands in section 17, the record of a deed which described the property as section 19, with a small “7” written over the “9,” the original deed not being produced. The “ 9 ” was not obliterated nor was there a partial erasure, and there was no deed or other paper in evidence, signed by the grantor in the deed in question, which tended to show that section 17 was intended. Held, not sufficient to prove plaintiff’s title to land in section 17.</p> <p>15. It being the duty of the town treasurer under sec. 1095, Stats. 1898, to note the payment of the taxes upon the tax roll, if paid to him, and the tax roll itself being made presumptive evidence of the facts stated in it under sec. 4162, a tax roll produced and identified by the county clerk, on which appeared opposite the description of the land on which a tax deed had issued, under the column headed “ Remarks,” the entry “Paid April 15, ’64,” is sufficient and competent evidence to prove the payment of the tax, and sufficient to defeat the tax deed issued thereon.</p> <p><8. Under sec. 1095, Stats. 1898, it is the duty of the town treasurer to make a duplicate stub receipt whenever he receives payment of any taxes, and by sec. 1096 he is required to compare the stub receipt book with the tax roll, and return it with the tax roll to the county treasurer. Sec. 1096 fui'ther provides that such stub receipt book shall have the same effect, as evidence, as the original receipt. Held, that a stub receipt book, properly produced and identified, which showed payment of taxes for which a tax deed had been issued, is competent and sufficient evidence of the payment of the tax and the invalidity of such tax deed. Pier v. Prouty, 67 Wis. 21&, distinguished.</p> <p>7. Where lands were'sold for taxes in 1864, and tax deeds issued thereon recorded March 1, 1869, entries in the county clerk’s sales book of 1864, opposite the descriptions of such lands, to the effect that they were redeemed June 14, 1869, are incompetent evidence to prove the redemption of such lands from such tax, since they purported to have been made at a time when no officer was empowered to receive redemption money and when no redemption could be made.</p>

<p>Appeal from a judgment of the circuit court for Lincoln county: Chas. M. Webb, Judge.</p> <p>An action for personal injuries received by the plaintiff while engaged as back tender in the paper mill of the defendant, on June 28,1896. Plaintiff was substantially twenty years of age, had been employed in factories from the time he was fifteen, and in paper mills most of the time for three years prior to his injury, in and about work similar to that he was required to do for the defendant. He had been employed in the same capacity in defendant’s mill, and about the same machine, for two months and a half, at the time of his injury. That machinery consisted of, first, what is known as the press machine, consisting of rolls whereby the water is pressed out of the pulp, and it reduced to such consistency as to enable it to be carried along as a sheet of paper. Thereupon it passed from the upper part of the press machine across a space of about three feet, to the dr}?--ing machine, which consisted of a series of large steel rolls, heated, around which, in succession, it was to pass to be dried. These rolls, in number fourteen, some three feet in diameter and five feet in length, were arranged successively in a longitudinal iron frame, which rose about eighteen inches from the floor, and at each roll was surmounted by a structure to support the journal of the roller. The top of this frame was flat iron, five or six inches in width, and apparently might be used by the employees to step up onto or stand upon if necessary. This longitudinal frame was interrupted between the press machine and the dryer, there being a space of about two feet and a half, where it was cut away to enable easy access for a man between the last press roll and the first dryer roll to carry the paper sheet across whenever necessary, and to engage it with the sheet of felt which carried it along under the front side of the first dryer roll. In this process it was customary for one man to stand in the space between the press machine and the first dryer roll, and for another man, usually the plaintiff, to stand upon a board which spanned this breach in the iron frame. That board was fastened to the frame at the dryer side of this opening by a securely fastened bolt, on which it moved as a pivot, being swung into place with the other end resting upon the frame of the press machine, without anything to secure it. When not in use for the purpose above stated, it was ordinarily thrown open, and back against the dryer machine. It had been in use for about a month before plaintiff’s employment, and continuously up to the time'of the injury. It had on one occasion worked loose around the bolt, and a washer had been put on, and the bolt again screwed down and battered down, so that it was tight, and 'some force had to be exercised to push the board around so as to span the opening or to pull it out of the way. Where the free end rested upon the iron frame of the press machine the iron was smooth, and was subject to the continual dripping of oil and grease. The board was about the same width as the iron frames on which its two ends rested, and neither before nor after the accident had it been discovered but that it rested smoothly and securely at both ends. On the day in question the plaintiff mounted this board for the purpose of carrying the end of a sheet of paper from the press over to the dryer roll, standing about midway between the two, and apparently a couple of feet from the latter. He observed a stray piece of paper sticking to the dryer roll, which it was necessary to remove, and, still standing upon the board, he reached over diagonally into that machine, and attempted to pick it off at a point just above the point of contact between the rapidly moving felt and the hot dryer roll, whereupon, according to his story, the board tipped a little and slipped out backward, and he was thrown forward, and his hand drawn in between the roll and the felt and injured. He had occasion to use this board from five to fifteen times per day, and, while it was sometimes swung in and out of place by bis associate, that was frequently done by himself. Some evidence was offered that such boards were not ordinarily used in other factories, and the plaintiff testified that he had never seen one elsewhere ; that in some he was accustomed to stand upon an iron step made for the purpose, and in others to stand astride of the opening, with a foot on the frame of each machine. At the close of the evidence a verdict was directed for the defendant, upon which judgment was entered, whence this appeal.</p>

C. SilvebthoeN, Circuit Judge. In June, 1900, the JR. Oormor Company and W. D. Connor presented a petition to the town board of the town of Cleveland, setting out that they were the owners of certain timber lands, and asked that a temporary logging road be laid out across lands owned by the defendant Wallman, under sec. 1299i, Stats. 1898. After a hearing had been had, the board made an order laying out such road, which was to remain in existence for ten years.

<p>Appeal from a judgment of the circuit court for Marathon county: Chas. M. Webb, Judge.</p> <p>Action by judgment creditors of J. A. MeOrossen to reach real estate claimed by him as his homestead, James MeOrossen being joined as mortgagee. The complaint was to the effect that* the real estate described, located in the city of Wausau, Wisconsin, was J. A. MeCrossen’s homestead when the mortgage thereon, owned by James Me-Grossen and particularly described, was given; that such real estate subsequently ceased to be the homestead of the mortgagor, by reason whereof plaintiffs’ judgments, which were particularly described, attached thereto as liens; that the mortgage was void because it was not signed by the mortgagor’s wife.</p> <p>The answer put in issue the allegations of the complaint as to the real estate ceasing to be a homestead and the mortgage not being signed by Mrs. McCrossen; and it was therein alleged that she, for the purpose of empowering her husband to borrow money on the homestead to invest in a business for her, on February 12,1894, gave to him. a power of attorney in writing, authorizing him as follows: “ In my name, place, and stead to' sell and convey any real estate and personal property which I may now own or may hereafter acquire in the states of Wisconsin and Washington;” that under such authority, and at the express request of Mrs. McOrossen, her husband, defendant J. A. McOrossen, borrowed $2,500 of the Stuart Lumber Company and secured the payment thereof by the mortgage in controversy, all parties in the transaction, including Mrs. McOrossen, believing that the power of attorney was broad enough to authorize Mr. McOrossen to sign his wife’s name to the instrument with the same force and effect as if she signed it by her own hand; that the money was actually invested in business for Mrs. McOrossen, and that the mortgage was thereafter, for value, assigned to defendant James McOrossen.</p> <p>The facts stated in a general way were set up in the answer as a counterclaim, and affirmative relief was prayed for. The court found the facts requisite to plaintiffs’ right to challenge the validity of the mortgage and of J. A. McOrossen1 s right to hold the realty as a homestead, and decided that such right existed when the mortgage was executed; that it was executed substantially under the circumstances stated in the answer and for the purpose therein alleged, i. e., to obtain money with which to start a business in the name of and for the benefit of Mrs. McOrossen; that such purpose was fully carried out; that before the commencement of the action James McOrossen became the owner of the note and mortgage; that on May 1, 1894, J. A. McOrossen, with his wife and family, temporarily removed from the homestead to engage in business and live in the state of Washington, Mrs. McCrossen disposing of her business in Wausau in order to use the proceeds in the new venture; that the temporary removal was for the benefit of Mrs. McCrossen’s health; that the McCrossens did not, at the time of such removal or at any time thereafter, intend to abandon their Wausau homestead, but on the contrary that they proposed at all times to return and occupy it, the particular time being uncertain till after the death of Mrs. McCrossen; that she died at Everett in the state of Washington in April, 1895, when and where she had an interest in a store in which her husband was a clerk; that after her death he ceased to work.in the store, but did not withdraw the interest of his wife’s estate therein; that he attended to some business in the state of Washington subsequent to his wife’s death, including the operation for a few months of a small shingle mill, and that in the fall of 1897 he returned to Wausau to reside, leaving his children at Everett till the close of the term of school, when they'also returned to Wausau to reside with their father; that the homestead was not occupied by him after such return and before the trial because he had not perfected'his arrangements to commence housekeeping; that his purpose was ■to reoccupy the homestead with his family at the expiration of an existing lease thereof; that he • did not acquire a homestead while in the state of Washington, but that he voted in such state three times, once at a national election and twice at municipal elections.</p> <p>On such facts the court decided that at the time of the rendition of the plaintiffs’ judgments the realty was, and up to the time of the trial continued to be, the homestead of J. A. McCrossen; that such judgments never became a lien thereon; that the mortgage was valid as to the parties thereto, including Mrs. McCrossen, and as to the creditors of J. A. McCrossen; that the latter was entitled to a judgment dismissing the action with costs, and that James McCrossen was entitled to a like judgment for costs and a judgment establishing the validity of the mortgage against J. A. McCrossen and plaintiffs. Judgment was rendered accordingly.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: JaMes O’Neill, Circuit Judge.</p> <p>This is an action to recover damages for personal injuries suffered by the plaintiff by reason of a collision between one of the defendant’s street cars and a load of hay upon which the plaintiff was riding. The accident happened upon the 12th of June, 1899, at about 8:10 p. m., on Putnam street, in the city of Eau Claire. Putnam street runs directly north and south, and is sixty-six feet in width, and is practically level. It is crossed by Madison street, running directly east and west, and a single track, of the defendant’s street railway runs east upon Madison street until it reaches Putnam street, where it turns and runs north in the middle of Putnam street for several blocks. Fay street, which runs in a northwesterly direction, comes into Putnam street at a distance of 422 feet north of Madison street, its width being seventy-three feet measuring along the west line of Putnam street. Birch street, running directly east and west, crosses Putnam street 422 feet north of Fay street. The evidence shows that on the evening in question the plaintiff, who was driving a team of horses attached to a load of hay and standing up upon the load, drove northwesterly on Fay street to Putnam street, where he turned directly north, intending to drive along Putnam street until he reached his own house, which was located on the. west side of Putnam street in the block north of Birch street; that a man named Palmer, of whom the plaintiff had purchased the hay, followed the plaintiff, riding in a buggy, some three or four rods in the rear; that the plaintiff drove northward on the west side of the street-railway tr.ack on Putnam street, and at some point between Fay street and Birch street drove onto the street-railway track and traveled north on the track for some distance,— the point where he entered upon the track and the distance which he drove thereon not being clearly fixed; that at some point before he reached Birch street, while he was still upon the track, one of the defendant’s interurban street cars came up from the south, and struck the load of hay with considerable force, breaking the pole of the wagon, throwing the plaintiff off from the load, and injuring him, and causing the horses to run away. The plaintiff claims that he looked south for a car when he first entered on Putnam street, and also when he turned upon the track, and that there was none in sight. The negligence claimed was in the running at an excessive rate of speed and in the giving of no warning signal. The car was an interurban car, running between Eau Olaire and Chippewa Falls, and weighed about 11,000 pounds, being considerably larger than an ordinary street car. The evidence showed that it was light enough at the time of the accident so that one could see two blocks or more, and that there was a headlight upon the street car. Palmer testified that no bell was rung by the motorman, and that the oar was going at the rate of twelve or fifteen miles an hour, and did not slacken its speed prior to the collision. The conductor of the car testified that he gave a signal to stop the car in the middle of the block, and that the motorman answered it by a single tap of the gong; the signal being given because a passenger wished to get off at Birch street. The plaintiff testified that the' first notice he had of the approach of a car was when he was struck.</p> <p>At the close of the plaintiff’s case a motion for nonsuit was sustained, and from judgment thereon the plaintiff appeals.</p>

Action to recover compensation for personal injuries caused under circumstances alleged in the complaint in effect as follows: About 9:30 o’clock p. m., August 2Y, 1899, while plaintiff and her husband, accompanied by several other persons, in a lumber wagon drawn by two horses, were traveling south on North Far well' street at the crossing thereof with Wisconsin street, a point much used for public travel, said Wisconsin street having a street-railway track in operation…

This action was commenced in justice’s court. The complaint shows that on August 4, 1899, plaintiff sold the defendant a binder upon a written order; the price to be $110, with sis per cent, interest. A note for the amount was to be given on demand, after receipt of the machine, payable November 1, 1900.

<p>Dibel: Pleading: Amendments after trial: Words actionable perse: Instructions to jury: Justification: Evidence: Damages: Court and jury.</p> <p>1. Plaintiff was soliciting subscriptions for a directory he contemplated publishing, when there appeared in two newspapers an article headed “A Warning,” copies of which in the shape of a circular letter were mailed by defendants to several of their customers. In an action for libel, the article, as set forth in the complaint, was to the effect that “certain unscrupulous parties, in making a pretended canvass of the city for a directory, persist m falsely representing” that defendants did “not intend to publish a directory; ” that “these untruthful adventurers ” knew it was possible for them to secure business only by “misrepresentation”; that the people of the city had had experience with “ wandering fakirs whose whole capital” was “glowing promises and only object to capture money,” and that it was “folly to pay money to irresponsible directory schemers.” No objection was made that the complaint failed to allege that the article was published concerning the plaintiff, as prescribed by sec. 3677, Stats. 1898. Held, that the circuit court, after trial, properly allowed the complaint to be amended in that regard.</p> <p>3.Such article was libelous per se, although it did not impute a crime, since it directly tended to prejudice the plaintiff in his trade and business.</p> <p>3. In such case, it was error to instruct the jury to the effect that the defendants would fail on their plea of justification, even if they had proved that the plaintiff had falsely and untruthfully made the statements charged in the libel, unless they went further, and also proved that at the time of making such statements the plaintiff knew “that the defendants did not intend to issue a directory.”</p> <p>4. In such case, evidence of the amount of money invested in plaintiff’s business and the receipts arising from his sales; of the amount he expended for board while collecting pay for books delivered; and that plaintiff's directory is copyrighted, is irrelevant and its admission improper.</p> <p>5. In such case, where the answer admitted mailing copies of the article in question to certain of defendants’ customers, but denied that it caused the publication thereof in one of the newspapers, evidence of one of the proprietors of the newspaper that he knew theyhad some authority to publish the article; that he did not know how they received it, nor who directed them to put it in the paper; and that the defendants might have done so, but he could not remember, is not sufficient to take to the jury the question whether defendants caused such publication.</p>

<p> Appeal: Jurisdiction: Record: Dismissal. </p> <p>Where the judgment appealed from is not included in the record, nor returned to the supreme court from the court below, the appellate court has no jurisdiction and the appeal must be dismissed.</p>

J. YiNje, Judge. This was a garnishee action. The garnishee was an as-signee under a voluntary assignment for the benefit of creditors, executed by one Manes. The plaintiffs, who were creditors of Manes, sued him, and recovered judgment upon their claim, and garnished the defendant, claiming that the voluntary assignment was void because of an omission in the assignee’s bond.

Fish, Circuit Judge. The complaint in the first instance was in form to remove a cloud upon title to real estate. It stated in substance that plaintiff was the owner in fee simple of the land .described in the complaint; that defendant claimed to own the same under a deed from Eebecca Campbell, good upon its face, but that it was never delivered to the grantee. There was the usual prayer appropriate to such an action.

<p>Appeal from a judgment of tbe circuit court for Walworth county: EkanK M. Eish, Circuit Judge.</p> <p>The plaintiff was running a traction engine weighing nearly 12,000 pounds along defendants’ highway. He came to a wooden truss bridge which spanned a creek or river. He got out, and examined the bridge, and concluded it was-safe. He thereupon attempted to cross the bridge without spanning it with planks, as required by ch. 367, Laws of 1891. The bridge broke down, and plaintiff was injured. He brings, this action to recover damages for such injuries, claiming that some of the bridge timbers were defective to such an extent as to render the highway defective and dangerous. The court directed a verdict for defendants. Plaintiff appeals.</p>

<p> Master and servant: Negligence: Evidence: Statutes: Fire escapes. </p> <p>1. A factory caught fire, and a servant sustained injuries by jumping from a third-story window. In an action for such injuries it appeared, among other things, that the master maintained a vat containing inflammable material at a point from thirty to thirty-five feet from a trip hammer operated in connection with the factory; that sparks from the trip hammer would not retain sufficient heat to cause any substance to ignite for a greater distance than twenty feet; that the fire was first discovered on a rack beside the vat, the rack being used to drain articles that had been dipped into the vat; that the rack was covered at the time, but in endeavoring to put out the fire the cover was knocked off, and soon thereafter Are appeared in the vat; and that the same conditions had existed for several years without developing danger from sparks. Held, insufficient to support a verdict that the master was negligent in locating the vat and rack the distance they were from the trip hammer.</p> <p>2. Ch. 355, Laws of 1895, provides that every factory building three stories or more in height, in which more than twenty-five people are employed, shall be provided with iron fire escapes on the outside of the building, but that its provision shall not apply to any buildings “now erected ” which are supplied with a “ reasonable fire escape or fire escapes.” Defendant's factory, containing more than twenty-five employees, was erected prior to the passage of said act, and was in part three stories in height. There were five windows on the side of the three-story part, which looked out on the flat roof of the two-story part, the middle window extending to the floor of the third story, and to within one foot of the flat roof, the other windows being about three feet above such roof. Along one side of the two-story part there was a lean-to, the roof of which was six or seven feet below the roof of the two-story part, and about seven feet from the ground, with a firm ladder connecting the two roofs. There were inside stairways, three or four feet wide, at each end of the three-story part, leading from floor to floor to the ground floor below. In an action for personal injuries to an employee sustained by jumping from the third-story window, the factory having caught fire, it was held that the factory in question was, at the time of the passage of that act, supplied with a reasonable fire escape, within the meaning of that statute.</p>

<p> Appeal: Findings of fari, when reviewed: Specific performance: Tender of performance. </p> <p>1. The supreme court will not review findings of fact, in the absence of exceptions to the findings incorporated in the bill of exceptions.</p> <p>2. In an action for specific performance, a finding that there has been no tender of performance, and that it did not appear that plaintiff was able, ready, or willing to perform the contract if given an opportunity so to do, is sufficient to justify a judgment dismissing the action.</p>

H. Elett, Judge. This is an appeal from an order dissolving an injunctional order.

Eish, Circuit Judge. Action on a contract to recover of defendants as partners the sum of $1,000. Defendants, for some time prior to 1895, pretended to be a corporation by the name of Dan Head & Co.,.and as such, carried on a banking business in the city of Kenosha, Wisconsin. At the time named, the company, as a corporation, made an assignment to George Hale for the benefit of creditors.

Fish, Circuit Judge. On the 10th day of December, 1899, the plaintiff attempted to board one of defendant’s cars at a crossing in the city of Racine. As he had placed his right foot upon the step and seized the handrail with- his right hand, the car was suddenly started, and the plaintiff thrown violently to the ground and injured. Some of these facts were in dispute, but the finding of the jury thereon is not assailed as unsupported by the evidence.

Eish, Circuit Judge. The plaintiff’s intestate, a little girl’five years old, returning from school at about 11:30 a. m. of November 6, 1899, when crossing Douglas avenue, in the city of Bacine, at its intersection with St. Patrick street, was run over and killed by one of defendant’s cars. This action is brought to recover damages therefor.

G-. SiebecKeb, Circuit Judge. Plaintiff is the widow of the deceased, who died in February, 1899. They were married in January, 1872.

Dick, Circuit Judge. The defendant The United States Fidelity dh Guaranty Oom-gczny has appealed from an order overruling a demurrer to the plaintiff’s complaint. The complaint was challenged on the ground that there was a defect of parties defendant, and •that it did not state facts sufficient to constitute a cause of action. It appears that the city of Waupun was desirous of erecting a municipal lighting plant.

Appeals from a judgment of the circuit court for Racine county: Feank M. Eish, Circuit Judge. Held: also, that defendant, Scott, had no right, under the agreement in question, to manufacture the so-called “ Tecktonius lug,” or to mark the same with' his own name, and that the plaintiff was entitled to judgment enjoining the defendant from representing to the trade that he had such right, or that he had a right to mark such lug with…

0. Ludwig, Judge. This is an action to recover for personal injuries.

Williams, Judge. At the time of and for a considerable period before the occurrence complained of, defendant was a manufacturer of brick and. plaintiff was one of its employees. A part of the brickmaking plant consisted of a building, in which was located, near the north end, a machine called a “ crusher,” through which the clay was put before being made up into brick.

0. Ludwig, Judge. On May 19, 1900, the plaintiff obtained and docketed a judgment in the superior court of Milwaukee county against the defendants Fred. W. Schneck and the Blue Mound Investment Company for $6,102.55. On May 21, 1900, an execution against them was duly issued and placed in the hands of the sheriff of Milwaukee county, which was the domicile of the defendants. This execution was sealed with the seal of the circuit court instead of the superior court.

<p>Appeal from a judgment of the superior court of Milwaukee county: ObbeN T. Williams, Judge.</p>

0. Ludwig, Judge. This is an action to recover for personal injuries suffered by the plaintiff on an alleged defective sidewalk.

Action to recover compensation for personal injuries received by plaintiff, a girl about fifteen years of age, caused by her hand being crushed and burned in an ironing device called a mangle, used in a steam laundry.

0. Ludwig, Judge. On August 1, 1895, the defendant executed and delivered to plaintiff a guaranty, of which the following is a copy: “ Whereas, Otto Kornreich is indebted to Coxe Bros, da Co., Inc., on open account, for coal heretofore sold and delivered by Coxe Bros, db Co., Inc., to him, in the sum of thirteen hundred and one iA dollars. “Andwhereas, Otto Kornreich intends to purchase of Coxe Bros. (& Co., Inc., further amounts of coal from, time to time after the date…

Appeals from an order of the superior court of Milwaukee county: J. C. Ludwig, Judge. Appeal from order settling accounts and awarding expenses and compensation to the receiver in the case of Bal-lin and others, as plaintiffs, against the J. & E. B. Friend Lace Importing Company and others, as defendants.

Williams, Judge. They contended, inter alia, that footmen have no right to a street crossing superior to teams, and that it is negligence to attempt to cross a street whereon are moving vehicles without looking in both directions. Barker v. Savage, 45 N. Y. 191; Belton v. Baxter, 54 N. Y. 245, 241; Olementson, Wheel-men, § 114; Savage v. Gerstner, 36 App. Div. 220; Ootton v. Wood, 8 O. 33. (N. S.), 568; East Chicago F. Go. v. Ankeny, 19 Ind.

Williahs, Judge. Appeal from an order overruling a demurrer to the complaint on the ground that the plaintiff had no legal capacity to sue because he had obtained bo authority from the court to bring the action.

<p>Appeal from an order of tbe superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>Appeal from an order of the superior court of Milwaukee county overruling a demurrer to a complaint. Tbe action was to recover compensation for a personal injury. Tbe complaint was to the following effect: Plaintiff, a carpenter by trade, was employed by defendants — who were contractors for work of repairing buildings — to do work of that kind upon a dwelling bouse. Prior thereto defendants carefully examined such dwelling house, and knew or ought to have known the age and condition thereof as regards soundness and strength to bear up the weight of a person while working around and upon it, and especially knew or ought to have known of the unsafe condition of the particular dormer window casing which gave way and was the immediate cause of the injury plaintiff received. A part of the work to be done consisted of mending the roof near a dormer window. There were three ways of reaching the place where such work was required to be done, one being to go upon the roof from the window and stand in the gutter at the edge of the roof and do the work with one hand while holding onto the window casing with the other. That was the most dangerous way of proceeding with the work, but was the one selected by defendants. Plaintiff requested defendants to furnish him with appliances or help to enable-him to do the work by one of the safer methods, but they negligently refused to do so and insisted upon his proceeding by the particular method described or not at all, assuring him that such way would be safe if he exercised ordinary care. Because of the necessities of plaintiff, which required him to earn wages for the support of himself and family, and the assurance of defendants as to the safety of the method of doing the work described, he proceeded in that way; and while at work, standing in the gutter at the edge of the roof, and holding onto the casing of the dormer window with one hand and working with the other, using all reasonable care to avoid being injured, the casing suddenly broke- or pulled off, causing him to fall a distance of some twenty-five feet to and upon the frozen ground, whereby he was severely injured. The unsound and unsafe condition of the casing was not known to plaintiff, nor could it have been known to him by the exercise of ordinary care. It had existed for a long time prior to the accident and was known to defendants or ought to have been discovered by them at the time of their careful examination of the building, made prior to directing plaintiff to proceed with the work.</p> <p>The demurrer was upon the ground that the complaint failed to state facts sufficient to constitute a cause of action.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: Eugene S. Elliott, Circuit Judge.</p> <p>This appeal is by defendant from an order appointing commissioners in condemnation proceedings and denying defendant’s motion to dismiss. It appears that prior to July 1,1896, the land in question was owned by one Robert Stewart, and was then in possession of his tenants. On the date last mentioned the defendant surveyed, took possession of, and laid its track upon, and began to use a strip of land about sixty feet wide, more fully described in the petition, being an extension of Pennsylvania avenue south to the Chicago road, and a part of said Stewart tract. Such entry was made with the knowledge of Stewart, and without his objection. February 28,1897, Stewart died, leaving a will devising this property to his children, and appointing his wife executrix. As such, Mrs. Stewart commenced this proceeding by filing a petition setting out the facts that Stewart owned the land, his death, the taking by defendant, that no compensation had been paid and no proceedings had ever been commenced by defendant and it had never acquired title to its said right of way, and that she and the company wore the only parties interested in the premises, and asking condemnation. A demurrer on the ground that the court had no jurisdiction and that the petition was wanting in facts was overruled. Thereupon the defendant answered that it was an ordinary street railway, and set up an agreement between the St. Francis Park Company and said Stewart, by the terms of which the latter, in consideration of the opening and grading of said street, the building of a fence, and the settlement with his tenants for damages to crops, agreed to convey the right of way without charge. It was further alleged that this agreement had been fully performed at considerable expense,. the street had been opened and used, and no claim for compensation had been made by Stewart in his lifetime. The park company was interested in having the street railway extended to its property, and agreed with defendant to secure the right of way through the land in question. A second defense set up the death of Stewart, the making of a will, and a devise of the lands to his children. A third defense alleged payment for the right of way, and that defendant was entitled to a conveyance of the right of way, and a release of damages. Later the children of Stewart were made parties to the proceeding. Mrs. Stewart, having been discharged from her trust as executrix, was appointed admin-istratrix de bonis non with the will annexed, and was duly brought into the proceeding in that capacity. The matter was tried by the court, and the order mentioned was made without any formal findings being filed. The chief question litigated on the trial was whether there had been an agreement between the park company and Stewart, and such part performance of it, as would warrant the court in denying the application to condemn. The errors relied upon are: (1) That the court erred in overruling the demurrer; (2) that the court erred in denying defendant’s motion to dismiss and appointing commissioners.</p>

<p>Appeal from an order of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>After the commencement of an action for foreclosure of a mortgage by one Daniel Goldstein he died, and the present appellant was appointed administrator of his estate, and filed a supplemental complaint, in the usual form, for the foreclosure of the mortgage, securing overdue notes for $2,000. In addition to the usual complaint, it is alleged that after the execution of the mortgage the mortgaged premises were sold to the defendants Otto Witte and Katherine Witte, his wife, as husband and wife, and to the survivor, and that the .said Otto Witte and Katherine Witte, as part of the purchase price, assumed and agreed to pay the mortgage and notes. It is also alleged that the defendants Otto Witte and Katherine Witte, bis wife, as husband and wife, and other defendants, have, or claim to have, some interest in, or lien upon, the mortgaged premises, which interest is subject to the lien of the plaintiff’s mortgage. The prayer is for revival of the suit in the name of the administrator, the ordinary judgment of foreclosure, and personal judgment for deficiency against the maker of the notes, and against Otto Witte and Katherme Witte. To this complaint these respondents interposed a demurrer, for the reason that it appears upon the face of the complaint “ that as to said defendants Otto Witte and Katherme Witte, as husband and wife, said supplemental complaint does not state facts sufficient to constitute a cause of action.” From an order sustaining that demurrer, plaintiff appeals.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Eugene S. Elliott, Circuit Judge.</p> <p>It is undisputed that in the fall of 1890 the plaintiff, through the agency of one A. B. Myers, purchased the land in question from the defendant Bjorhquist at the agreed price of $32,000, and paid down $16,000, of which Myers had and retained $2,000, and Bjorhquist $14,000, and for the balance of the purchase price the plaintiff, at the request of Bjorhquist, gave back a mortgage, dated October 7, 1890, for $16,000, running to the defendant Crowns, which was duly recorded; that, default having been made in the payment of the mortgage,' October 2, 1895, Crowns commenced an action to foreclose the same, and March 9,1896, took judgment on default; that there was then due on the mortgage $17,640.85; that May 31, 1897, the premises were sold on that foreclosure judgment to Bjorhquist for $7,500, and Bjorhquist thereupon took possession thereof, and July 24, 1897, a judgment for deficiency was entered in favor of Crowns and against the plaintiff for $11,475.56; that November 24, 1897, the plaintiff appealed to this court from that judgment for deficiency, and the same was affirmed March 22, 1898 (Crowns v. Forest L. Co. 99 Wis. 103); that September 21, 1897, Crowns commenced an action, based upon such judgment for deficiency, in the nature of a creditors’ bill, to recover such deficiency from the stockholders of the plaintiff, and several of the defendants answered and put in counterclaims and cross bills, and such proceedings were had in that action that an order was entered opening such default and vacating such judgment conditionally, and allowing the question of the validity of the mortgage to be litigated; that, upon the appeal by Crowns from that order, the same was reversed October 11, 1898 (Crowns v. Forest L. Co. 100 Wis. 554); that, the remittitur being filed, the plaintiff moved this court for leave to prosecute its so-called cross bill and to file a bill of review, but which motion was denied by this court February 21, 1899 (102 Wis. 97); that, as a result, this action was commenced June 12, 1899, by the plaintiff against Bjorlcquist, Growns, and Myers to enjoin the enforcement of such judgment for deficiency against this plaintiff so obtained by Growns July 24, 1897, and also to set aside the transaction by which the plaintiff purchased the land from Bjorlcquist, and also to recover back moneys paid by reason of the alleged frauds of Bjorlcquist and Myers.</p> <p>The defendants Bjorlcquist and Growns answered by way of admissions, denials, and counter allegations.</p> <p>The issues thus joined were tried by the court, and at the close of the trial, in addition to the facts stated, the court found, in effect, that some time prior to June 4, 1889, one Carl Doerflinger, being the owner of the premises in question, had given to the defendant Myers, of the firm of West, Myers & Brewer, the agency to sell the land; that Myers offered the land for sale to Bjorlcquist, and caused Doer-flinger and Bjorlcquist to come together and personally negotiate for the sale and purchase of the land; that June 4, 1889, such negotiations resulted in a written contract, signed by Doerflinger and wife and Bjorlcquist, wherein and whereby Bjorlcquist agreed to pay Doerflinger $500 down, and $9,500 on or before June 10, 1889, when Bjorlcquist was to receive a deed and give back a mortgage of $13,000 to secure the payment of the balance of the purchase price; that Myers had no interest in such transaction, except to get compensation as such agent for securing such sale and purchase; that Bjorlcquist paid the cash as agreed, and received his deed and gave back the mortgage as agreed; that, upon making such purchase, Bjorlcquist, for a time, contemplated residing upon such premises; that in April, 1890, Bjorlcquist gave to Myers the privilege of selling the premises at such price that he (Bjorlcquist) should receive $30,000,— Myers getting his commissions from the party to whom the sale should be made,— and that no other agreement was made between Bjorhqmst and Myers in respect to such sale; that through the efforts of Myers the plaintiff was incorporated and organized in August, 1890, for the purpose of purchasing, platting, and selling the land in question; that September 15, 1890, BjorJcquist paid to Doerflinger the $13,000 mortgage, and the same was satisfied September 17, 1890; that about the same time the plaintiff, through the agency of Myers, agreed to purchase the land in question from Bjorlcquisi, and to pay down to him upon such purchase, in cash, $14,000,’he to give a deed to the plaintiff reciting a consideration of $32,000, and take back the mortgage to Crowns, dated October 7, 1890, for $16,000, and the other $2,000 to be retained by Myers for effecting such purchase, in stock issued by the plaintiff; that Bjorkquist knew nothing, about the plaintiff or its officers or stockholders, and had nothing to do about Myers’s commissions, except that he conveyed the land to the plaintiff, and received from it $14,000 in cash, and the note and mortgage for $16,000, the balance of the purchase price, dated October 7, 1890; that at the time of such purchase by the plaintiff the fair market value of the premises was $32,000; that Crowns had no interest in the mortgage, except as trustee for Bjorhquist; that some of the stockholders and officers of the plaintiff company, other than Myers, knew about the time of such purchase that Myers made a profit on the purchase by the plaintiff; that the president of the plaintiff knew in July, 1897, right after the sale on foreclosure, that Bjorkqwist only received $30,000, and that Myers received $2,000 in stock in the plaintiff corporation for making the purchase.</p> <p>The court found, as conclusions of law, that the plaintiff was not entitled to any relief in this action; that the defendants Bjorlequist and Crowns were entitled to judgment dismissing the complaint as to them, with costs, and that the defendant Myers was also entitled to judgment dismissing the complaint as to bim, and ordered judgment accordingly.</p> <p>From that part of the judgment so entered in favor of JBjorhqmst and Growns, the plaintiff brings this appeal.</p> <p>To the point that Myers, the agent of the corporation, was pecuniarily interested in the sale as Bjorkguists agent and this double agency rendered the entire transaction fraudulent, they cited Mechem, Agency, § 798; Oollins v. Case, 23 Wis. 230; Pickett v. School District, 25 Wis. 551; Shirland v. Monitor I. W. Go. 41 Wis. 166; Pittsburg M. Go. v. Spooner, 74 Wis. 307; Meyer v. Hanchett, 39 Wis. 419,425; Oook v. Berlin W. M. Go. 43 Wis. 433; Fox v. Mackreth, 2 Cox, 320; S. C. 2 Brown, Oh. 400; Torrey v. Bank of Orleans, 9 Paige, 649; Gillett v. Gillett, 9 Wis. 194; Munson v. S., G. de O. B. Go. 103 N. Y. 58, 74; White v. Sherman, 168 Ill. 589; Barrington v. Victoria D. Go. 3 Q. B. Div. 549.</p>

<p> Street railways: Deeds: Construction: Plats: Dedication of highway: Revocation: Reference in deed: Ambiguity: Parol evidence: Practical location: Change of grade of street: Damages: Release: Notice: Innocent purchaser: Injunction: Rights of abutting owner. </p> <p>1. Plaintiff in platting its lands indicated a street called W. street, and after recording such plat sold lots fronting thereon, many of which, as well as many of those retained, had no .access to any other street or alley. Before the recording of such plat plaintiff executed and delivered to a railroad corporation, the predecessor of defendant, a warranty deed granting “the right to construct, build, and operate a railroad . . . upon, over, and along that certain tract, piece, or parcel of land . . . known as W. street . . . according to the plat ” of plaintiff, and therein released the railroad corporation from damages occasioned by the “ construction, operation, and maintaining a railroad upon said street.” In consideration of being allowed to construct its road thereon, the railroad company agreed to grade and prepare W. street for public use, with a space on each side of its tracks for vehicles and for the construction of sidewalks, which was done. Held, that the railroad company was not.thereby granted the exclusive use of W. street for railroad purposes, and that the deed did not operate as a revocation of an incomplete dedication but granted to the railroad company the right to lay and maintain its tracks upon a strip of land, which was, as between the parties, a street, and which was intended to remain such.</p> <p>2. Where a land company granted a railroad corporation the right to construct and operate a railroad on a strip of land known as W. street, according to the plat of said land company, the reference in the deed to the plat, in the absence of any indication of intention to abandon or supersede the plat, is not simply for the purposes of description and location, but imports the plat into the deed, and as between the parties to the deed the strip of land is a street.</p> <p>3. Where a land company granted a railroad corporation the right to construct and operate its railroad on W. street, words in the deed granting it “ all the rights incident to and necessarily and commonly used in connection with the operation of a railroad,” at most introduce an element of uncertainty and ambiguity, rendering admissible parol evidence of the circumstances and situation surrounding the parties at the time of the grant.</p> <p>4. Such provision in the conveyance to the railway company in view of the surrounding facts and circumstances is held not to control and overrule other clauses granting the mere right to lay and operate tracks upon the grade of an existing street, conforming substantially to the natural surface of the ground, as had theretofore been agreed upon.</p> <p>d. Facts showing that said railroad corporation had graded the street in accordance with such agreement, laid its tracks thereon, and occupied and operated them for about four years, present circumstances showing practical location and use, and any indefinite and ambiguous terms of the grant as to place and manner of use become thereby limited and fixed.</p> <p>6. The grant being thus construed and made certain, and not being a grant of any right to the railroad corporation to change the grade of W. street, the release of damages contained in such deed is held to be a release only of such damages as would arise from the construction and use of the railroad in accordance with the terms of the grant, and not of such as would result from the railroad company changing the grade of the street.</p> <p>7. A street-railway corporation formed under ch. 86, Stats. 1898,' does not possess the powers granted by subd. 5, sec. 1828, Stats. 1898, to commercial railroads organized under ch. 87, to change the course and direction of highways, or carry them over or under its track, hence the powers possessed by the defendant to interfere with the grade of W. street must be such as it has acquired by grant.</p> <p>8. Where a deed to a railroad company was ambiguous, and conferred only a limited right to operate its road in the center of a street, subject to the rights of the public to use it as a public street, and the company, after exercising the rights granted for four years, conveyed its right to defendant in the same language as was used in the original deed, the grantee, not having inquired as to the facts and circumstances surrounding the original transaction, is not entitled to claim any rights as an innocent purchaser.</p> <p>•9. Where a street is not within the limits of any city or village, abutting owners are entitled to an injunction restraining a street-railway company from changing the grades thereof, unless such right is acquired by condemnation proceedings under sec. 1863a, Stats. 1898.</p>

<p>Appeal from an order of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>Appeal from an order overruling plaintiff’s demurrer to defendants’ answer. The order awarded absolutely to defendants $10 costs. Plaintiff appeals on the single question of whether it was error to allow such costs.</p>

WilliaMS, Judge. Action for personal injuries. The complaint sets out the facts, which, if proven, indicate that the defendant is liable for injuries sustained by plaintiff from being violently thrown from a street car on April 12,1898.

Elliott, Circuit Judge. Appeal by general guardian from an order of tbe circuit court of Milwaukee county awarding compensation to Hamilton P. Richardson as guardian ad litem. In 1894 certain real estate, vested in Virginia 0.

<p> Fraud: Undue influence: Setting aside deed. </p> <p>In an action to set aside a deed it appeared, among other things, that six months before her death, the grantee, a woman about seventy-seven years of age, made a will disposing of her property among her children; that nine days before her death, when she was weak from long sickness, two of her sons, by threats and artifice, persuaded her to destroy the will and deed the property to one of them: that the deed was so made and recorded, the sons agreeing to share the proceeds; and that two of the sons, one of whom was an attorney who drew the will, were in the city and, though near at hand, were not called in, but on various occasions, shortly before and after the deed was drawn, were prevented from seeing their mother in her last sickness. Held, sufficient to support findings that the deed was procured by fraud and undue influence.</p>

Williams, Judge. This is an action by the administrator of the estate of August Beyersdorff, deceased, on account of the death of said Beyersdorff, resulting, as alleged, from the negligence of the defendant. From a judgment of nonsuit the plaintiff appeals.

Williams, Judge. On May 25, 1897, garnishee summons was served upon the agents of the garnishee insurance companies, at Milwaukee. On November 1st it was filed with the clerk of the court, bearing the return of a deputy sheriff certifying such service, but making no mention either of service or of any attempt to serve upon the principal defendants.

Halsey, Circuit Judge. Action to recover the value of two shipments of peas. The defendant the Kmiomha Dispatch is a joint agency under which the other defendant and certain railroads make contracts for the carriage of freight over their connecting lines.

Elliott, Circuit J udge. In an action to foreclose two mortgages held by the plaintiff, one of which was upon two lots in Milwaukee occupied by the defendants as their homestead, and title held under a conveyance to them “jointly as husband and wife,” the defendants set up as defenses that the signature of Mary Pittelkow was obtained to said mortgage by fraud and duress, and that it was executed by her merely to validate it as a mortgage of Charles Pittelkow’s interest, and…

<p> Voluntary payment: Storage charges: Tender of judgment: Costs. </p> <p>1. Defendant contracted to deliver 400 cords of shipping wood to plaintiffs, to be transported by them by boat to Milwaukee. When the-vessel was tendered to defendant for loading, fifty-seven cords of inferior wood was piled on the dock in front of the wood intended for plaintiffs, and to save double handling thereof defendant contracted with the captain of the vessel to transport such wood to defendant’s dock in Milwaukee for an agreed price per cord; but the captain, in violation of-his contract, delivered the inferior-wood to plaintiffs, which they refused to accept, but voluntarily paid the freight to the captain. Held, that plaintiffs did not thereby acquire a right of action against the defendant for the amount of freight so agreed upon with the captain, and that the circumstances did not authorize them to create a legal liability against the defendant for piling or storing the wood.</p> <p>2. Where plaintiffs have no right to a more favorable judgment than was offered, they can only recover costs up to the time of the offer,, but must pay the defendant’s costs from the time of such offer.</p>

<p>Appeal from a judgment of the circuit court for Mil warn kpe county: EugeNE S. Elliott, Circuit Judge.</p> <p>This is an action for personal injuries suffered by the ■plaintiff as the result of a fall upon the street in the city of Milwaukee. The plaintiff appeals from a judgment of non-suit. The evidence shows that Brady street, in Milwaukee, is a street running directly east and west, with a cedar-block pavement, and that on the 11th of February, 1899, at about 9:30 o’clock p. m., the plaintiff was crossing Brady street from north to south, at a place thirty or forty feet distant from the prepared street crossing, and that as she was stepping up from the roadway of the street to the sidewalk she slipped upon a large sheet of ice in the street, and fell, breaking her ankle. It appeared that the street was sufficiently lighted so that she could see where she was going; that the place of her fall was about ten feet west of a certain watering trough at the edge of the sidewalk; and that for two weeks prior to the accident the weather had been bitterly cold, and a considerable quantity of ice had formed near the trough, on the outer half of the sidewalk, and in the street extending for some distance west of the trough, and that it was on this ice that the plaintiff fell. There was some evidence tending to show that the ice was rough, but there was no evidence tending to show that the roughness caused the plaintiff’s fall. The plaintiff testified simply that she fell because she slipped, and that she slipped because of the ice.</p>

<p>Application for a writ of habeas corpus.</p> <p>Proceeding by original writ of habeas corpus, issued from, this court upon a petition of FrederiT&a Stittgen, the mother of a nine-year old girl, Lillie, asserting her detention by Mrs. Marry Ernst, and seeking her enlargement and delivery to the petitioner. Erom the return it appeared that at the suit of Frederiha Stittgen a divorce was decreed by the circuit court for Milwaukee county on December 3, 1898, which, among other provisions, awarded to the mother (this petitioner) the custody of certain of the children, including the daughter Lillie; that thereafter, upon application to the ■county judge of Milwaukee county under sec. 45875, Stats. 1898, petitioner was decided to be unfit to have the custody •of the two daughters, Lillie and Ella, and the former was ■committed to the guardianship and care of the Reverend 0. Eissfeldt, as superintendent of a society for the care of •children, whence, by habeas corpus proceedings, the child was afterwards withdrawn, by reason of the unwillingness of Mr. Eissfeldt to contend against such proceeding, and delivered to petitioner. On September 28, 1900, one John Stitt-gen, a brother of the father, made application to the circuit court for Milwaukee county that he or some other suitable person be appointed guardian of the person of Lillie upon the ground that the mother is an unfit person. Upon due notice, the matter of that petition was referred to Hugh Ryan, Esq., a commissioner of the circuit court, before whom -an extended trial was had, in which the unfitness of the mother was made to appear in very extreme degree, and Mr. Rjmn so reported. It is not necessary to defile the xecords of this proceeding with the particulars. By his report the commissioner also recognized the impropriety of .any control over the child by the father, in deference to the decree of divorce adjudicating against his custody, and reported the unsuitability of the said uncle, John Stittgen, by reason of his close association with the father in residence .and business, and reported that an aunt of the child, Mrs. Harry Ernst, resident at Beaver Dam, and her husband, were suitable and proper persons to-have the care and custody of the child, they having expressed a willingness to .accept the responsibility and to perform the duties thereof. Upon this report the circuit court on February 2, 1901, entered its order:</p> <p>“ That the report of the referee be, and the same is, in all respects confirmed, and that Mrs. Harry Ernst, Beaver Dam, "Wisconsin, be, and she hereby is, appointed guardian of said minor child, Lillie Stittgen. Further ordered that Frederilca Stittgen, mother of said minor child, Lillie Stittgen, be, and she hereby is, required to deliver the said minor child, Lillie Stittgen, forthwith to Mrs. Earrry Ernst.”</p> <p>After certain obstructive and dilatory procedure, this order, by the aid of the sheriff, was carried out, and Lillie taken into the custody of her aunt and guardian, Mrs. Ernst, who produces her in court, in response to the writ of habeas corpus, with a return showing the foregoing facts, which, while traversed, is denied in no material particular. At the close of argument, an order was entered remanding Lillie Stittgen to the custody of Mrs. Ernst. A statement of the reasons for such order is deemed advisable.</p>

<p>Mechanics’ liens: Subcontractors: Foreclosure: Quasi -public corporations: Electric railway and light companies: Public convenience: Property subject to lien.</p> <p>1. Under the general language of the mechanics’ lien statutes, as applied to a railway or other gwasi-public corporation, a lien may be enforced against such structures or property of the corporation as are not essential to the maintenance and operation of its road or plant for the public purposes for which it was established. Carney v. L. C.&M.P, Co. 15 Wis. 503, and Purtell v. Chicago F. & B. Co. 74 Wis. 132, criticised.</p> <p>2. In an action to foreclose the lien of a subcontractor against the power house of an electric-light and street-railway company, furnishing iight and power and operating a street railway for the public purposes for which it was established, it was admitted that the corporation was engaged in carrying out its purposes by means of its plant and appliances “other than the new power house ” in question. Held, that plaintiff was entitled to such lien.</p>

<p>Master and servant: Personal injuries: Negligence: Evidence: Defective machinery: Witnesses: Adverse party: “ General managing agent” j of corporation: Trial: Unguarded machinery: Assumption of risk: Fellow-servants.</p> <p>1. In an action to recover damages for an injury caused by negligence, it is not error to exclude evidence tending to prove that after the employee was injured the defects in the machinery were repaired.</p> <p>'2. In such action-it is not error to sustain objections to questions asked the manager of the defendant’s mill, as to whether he had ever heard, prior to the injury in question, of any one else being hurt by the appliance in question.</p> <p>■3. Where there is other undisputed evidence on the same subject it is not error to exclude testimony by defendant’s manager, who was not a practical machine man, as to his knowledge of the use, purpose, and necessity of a certain improved form of appliance.</p> <p>4 Neither is the exclusion of such testimony error, when there is no evidence that other employers in similar businesses and in the exercise of ordinary care and prudence were in the habit of using such improved appliances.</p> <p>■6. An employer is not guilty of negligence merely because he does not adopt the best or most approved way and machinery. It is sufficient if, in the exercise of ordinary care and prudence, he adopts the ordinary way and machinery in use by other employers, in similar businesses.</p> <p>6. A witness whose deposition as an adverse party was attempted to be taken under sec. 4096, Stats. 1898, testified that he was not an officer or stockholder of defendant corporation; that he was local manager of its mill at a certain place; that the money used in that mill went through his hands; that he paid employees, looked after outside business, bought material, and conducted the correspondence relating to the mill, but that he had nothing to do with the mechanical running of the mill nor the hiring of help, and that he worked under the direction of the defendant’s president, who made weekly visits to the mill. Held, that the witness was not the “ general managing agent ” of defendant, within the meaning of said sec. 4096, nor of sec. 4068, which permits the “ general managing agent ” of any corporation which is a party, or for whose benefit the action or proceeding is prosecuted or defended, to be examined on the trial “ as if under cross-examination, at the instance of the-adverse party.”</p> <p>[7. Whether an exception to the ruling against the reading of such deposition is available to obviate any error in excluding certain parts thereof, not decided.]</p> <p>8. In an action for personal injuries received while employed in defendant’s mill it is not error to exclude testimony as to the proper lighting facilities of such mill, where it appeared that the plaintiff commenced working at six o’clock in the evening of July 15, and there was nothing in the complaint or plaintiff’s testimony indicating that any want of light contributed to the injury, or that the injury occurred at night, or that it was dark at the time.</p> <p>9. When the plaintiff in an action for personal injuries has testified fully as to the circumstances of the accident, and other witnesses have been examined, and counsel has discussed the question of the injury, and the court, in making a ruling, has commented thereon, it is not error to refuse to allow plaintiff, on being recalled, to go-over his testimony again, that being a matter within the discretion of the court.</p> <p>10. Under sec. 1636<j, Stats. 1898, providing that all shafting, so located as to be dangerous to employees in the discharge of their duties, shall be securely guarded or fenced, the question whether an employer is negligent in failing to guard a set-screw on a paper winder projecting nine sixteenths of an inch above the surface is for the jury.</p> <p>11. Plaintiff, nineteen years of age, with some experience as a factory workman, and four and one-half days’ experience, in defendant’s paper mill, was injured while assisting to operate a paper winder. On being told to hold the box of the machine down while the paper was being wound, he pressed down with his hands, and, that being insufficient, put his whole weight against the box by leaning over it, his chest resting on his elbows, in which condition his clothing was caught by a set-screw projecting nine sixteenths of an inch from a shaft which was revolving toward him at a great rate of speed, and he was injured. There was evidence that the nature of the work had been explained to him by the foreman, and that the plaintiff had noticed that the shaft was not moving smoothly. Held, that the plaintiff assumed the risk and could not recover. Winslow, J., dissents.</p> <p>12. The fact that the plaintiff was told to hold the box down by a co-employee does not affect the employer’s responsibility, the latter not being responsible for any alleged misconduct of a fellow-servant in that respect.</p>

<p>Appeal from a judgment of tbe circuit court for Sheboy-gan county: Miohael KiRwaN, Circui t Judge.</p> <p>The facts in this case are quite fully stated on the former appeal (100 Wis. 391), where it was held that the complaint stated a good cause of action, and that the answer was sufficiently definite to permit the introduction of evidence in relation to the issue of fraud, bribery, and corruption therein presented. A second trial was had. By stipulation the complaint ivas amended to the effect that, after the contract in suit was made, the plaintiff agreed with Turner to make advances for carrying on the work; that, after the work had been partially done, Turner’s interest was sold to plaintiff, and notice given defendant; that plaintiff was induced to make advances and to complete the work on the faith that the contract had been fairly let; and that he had no knowledge of any claim that it had been obtained by any improper means. The answer was also amended, setting up a contract between the city and the Oconto Water Company for a water supply, continuing for thirty years from July 9, 1890, at an annual rental of $6,500 for one hundred hydrants, and $50 a year for additional hydrants. It also alleged that on January 1,1894, the city borrowed from the state $35,000, payable, with interest, in twenty years, at the rate of $1,750, and at the time the contract was made, October 22, 1894, there was interest accrued thereon, and payable January 1st thereafter, amounting to $1,750. It also alleged other indebtedness of the city as follows:</p> <p>Electric light company. $4,014 50</p> <p>City-hall and engine-house bonds... 3,000 00</p> <p>Current expense and city orders. 10,000 00</p> <p>Other state, county, etc., indebtedness.. 5,000 00</p> <p>— making the total indebtedness of the city over $65,000, which was in excess of the five per cent, limit. The place of trial was changed to Sheboygan county. At the trial a further amendment was made to the answer, to the effect that at the time the said contract was made no tax levy was made to discharge the indebtedness thereby created, as required by sec. 3, art. XI, of the constitution; that the city was without funds; and that the city had no power under its charter to incur such indebtedness. It was agreed that the only issue that should be submitted to the jury was the one that arose upon the allegations of the answer relative to Turner’s securing the contract by improper means, — the other issues to be determined by the court. Pursuant to this arrangement, the jury rendered the following special verdict:</p> <p>(íQ. 1. At or about the time when the sewer contract in suit in this action was entered into by the city of Oconto with William Turner, did the said Turner and one Paul J. Eoley, or either of them, pay or cause to be paid any money to any member or members of the board of public works of said city for the purpose and with the intent thereby to bribe such member or members, and to corruptly influence their official action in letting or awarding, or in reporting to the city council in favor of the letting or awarding, of such contract to said Turner ? A. No.”</p> <p>The court rendered a lengthy written decision, and made findings showing the city’s assets and liabilities at the date of the contract as follows:</p> <p>“ School loan from state.$35,000 00</p> <p>City-hall and engine-house bonds and interest. 3,030 00</p> <p>City orders outstanding..•. 4,009 00</p> <p>Officers’ salaries, for ñre department, support of poor, etc... 609 32</p> <p>Electric light.. 628 35</p> <p>E. L. Shaw, $75 and $133.33. 208 33</p> <p>Sewer contract sued on. 17,323 01</p> <p>Total.$60,808 01</p> <p>Prom which should he deducted:</p> <p>County order, on hand. $667 00</p> <p>Cash in contingent fund. 94</p> <p>667 94</p> <p>Balance of indebtedness. $60,140 07</p> <p>Constitutional debt limit, $60,687.75.”</p> <p>As regards the first item mentioned, the court found that said sumwiis borrowed from the state on April 6,1894, and that it was payable in twenty annual instalments, of $1,750, with five per cent, interest in addition, on January 1st of each year; that the city received said sum on May 31,1894, less the advance interest up to January 1, 1895, and that it was borrowed for the purpose of building a high-school building; that on October 31, 1894, there was yet in the high-school building fund $21,433.34; and that the building was then in the course of erection. No proof was offered and no finding made as to any contract relative to the erection of the high-school building, or of its probable cost.</p> <p>As regards the city-hall and engine-house bonds, the court found there were outstanding bonds amounting to $3,000, of which $2,000 became due, with six per cent, interest, August 18,1895, and $1,000 and interest August 1, 1896. The interest had been paid to August 1,1894. In his computation of indebtedness, the court included interest earned, but not due, on the bonds, to the date of the contract, amounting to $30.</p> <p>The evidence showed total outstanding city orders, $4,100. The court disallowed orders amounting to $91, as being void, having been issued for an unauthorized purpose.</p> <p>The court found that in August, 1893, the city made a contract with the electric-light company to light the city for three years at a stated price per light, payable at the end of each month. The sum above mentioned is the amount of the bills for lighting for October and November, 1894.</p> <p>As regards the Shaw indebtedness, it appears that the city owed him $75 for services. Early in October the city entered into a contract with him to superintend the construction of the sewer to be built, and was to pay him for the time SO' engaged at the rate of $1,600 per year, at the end of each month. He began work November 1st, and the $133.33 above mentioned is for his services for November.</p> <p>Under the contract in suit, the total amount of the work, at the price agreed upon, was $18,099.66. At the close of the work the nest year there had been some delay, and under the terms of the contract the city made a deduction at the time of settlement of $776.65 as liquidated damages. The court, found the amount of the indebtedness created by the contract of October 22d to be the difference between these two sums.</p> <p>At the time the contract was entered into, the city was-under contract, by ordinance, with the Oconto Water Company, for a water supply, running thirty years from July 9, 1890, at an annual hydrant rental of $6,900, payable January 1st and July 1st of each year. All instalments had been paid up to July 1,1894. The ordinance provided that payments should be met by a direct annual tfix. The court found that the city was not then indebted under said contract.</p> <p>It further appears in the case that the city was under contract with divers teachers of its public schools for a period of ten months, beginning September 1, 1894, the monthly pay roll therefor being $920. All wages had been paid up to the time the sewer contract was entered into, and there was over $1,600 yet left in the school fund. The court found no indebtedness under this contract.</p> <p>The value of the taxable property of the city, upon which the computation of the limit of indebtedness must be based, was found to be $1,213,755. At the time the sewer contract was entered into, no provision for the collection of a direct annual tax to pay the liability thereby created was made.</p> <p>Upon the findings so made, the court directed judgment for plaintiff. Both parties filed numerous exceptions. A motion by defendant for judgment, and, if denied, for a new trial, was denied, and from the judgment entered on the verdict and findings the defendant has taken this appeal.</p>