Volume 111 — Wisconsin Reports

<p>Appeal from an order of the circuit court for Milwaukee county: EugeNE S. Elliott, Circuit Judge.</p> <p>The complaint alleged incorporation of the plaintiff; that on November 12, 1891, E. L. Babcock, since deceased, was duly elected secretary, and that he gave, and the defendant George F. Parker, as surety, executed, a bond conditioned that he should pay and account for all moneys, securities, and property coming into his hands as secretary, and well and truly perform all the duties of his office • and trust as such secretary; that by the articles of association and bylaws it was the duty of the secretary to sign, with the president, all certificates of stock, and to issue and deliver the same to the several subscribers on payment of the several subscriptions, and not otherwise; that said E. L. Babcock subscribed for 500 shares of $10 each, and that one Charles Wilhelm subscribed for a like amount, thereby agreeing to pay the sum of $1,000 in cash, the time of payment of the balance not being specified; that among Babcock’s duties was, as secretary, to collect and pay over to the treasurer the full amount of the cash payments due from Wilhelm and himself upon their stock subscriptions, before issuing or delivering said stock to either of them; that at the first meeting of the stockholders it was provided and agreed that the first twenty per cent, of each subscription should be paid in cash at the date of such meeting, to apply upon the purchase price of a tract of land, and that certificates of paid-up stock should be issued to each of the subscribers to the ■amount of their several cash payments; that said E. L. Bab-cock, as secretar}'-, unlawfully combining with the president, also now deceased, caused to be issued to himself thereafter 100 shares of paid-up stock in said corporation without consideration, and without making the said cash payment of $1,000 or paying any other sum; and subsequent to such issue, he, during his lifetime, conveyed the same to Hattie E. Babcock and J. M. Babcock for value, who now claim to be the holders and owners thereof free from all equities or rights of the plaintiff; and also, in like combination, issued a certificate for 100 shares of the paicl-up capital stock to said Wilhelm without the payment of any consideration therefor, and without the making of any part payment, which said Wilhelm transferred for value to one William Yewdale, who has ever since held the same, and claims to be, and, as plaintiff believes, is, the bona fide holder thereof for full value; that thereafter said assignees of stock presented their certificates, duly assigned, which thereupon were canceled, and' new certificates issued therefor by the said president and the said Babcock, as secretary, in due form, púrporting on their face to be fully paid and nonassessable,, and were delivered by said Babcock to said transferees, who ever since have held the same, claiming title thereto and interest in the property and assets of the plaintiff corporation, free from all infirmity or illegality; that Wilhelm has no property and is insolvent, and that Babcock died in the year 1894, leaving no estate whatever, and insolvent; that the other surety to the bond died in March, 1894; that by reason of the premises the plaintiff has suffered damages in the sum of $2,000, together with interest from the 26th day ■of December, 1891, for recovery of which the complaint prays.</p> <p>A general demurrer to this complaint was sustained, from which action the plaintiff appeals.</p> <p>They cited Bank v. Lanier, 11 Wall. 311; 1 Cook, Corporations, § 411; ■Cincinnati, F. O. <& T. P. B. Go. v. OiUzens’ Nat. Ba/nk, 43 L. R. A. Ill; 2 Thompson, Corporations, § 1680; Minor v. Mechanics’ Bank, 1 Pet. 46; Steaey v. I. B. & Ft. S. B. Go. 5 Dill. 348; Foreman v. Bigelow, 4 Cliff. 543; Be British Farmers’ P. L. O. Go. (Nichols’ Case), 26 Weekly Rep. 334; Bridgeport' Bank v. F. Y. da F. II. B. Co. 30 Conn. 231; Mandlebcmm v. Forth American M. Co. 4 Mich. 465; Bood ro. Whorton, 61 Fed. Rep. 436; Yottmgv. Erie I. Go. 65 Mich. Ill, 125; Western Bamk v. Tollman, 17 Wis. 583; Nat. Bank v. Watertown Bank, 105 U. S. 222; Merdegen v. Gotzhausen, 70 Wis. 590; Wood v. Union G. G. B. Asso. 63 Wis. 9.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county; Geoege W. BueNell, Circuit Judge.</p> <p>This action was commenced July 9,1894, by the plaintiff to recover of the defendant village certain liquor license moneys collected by the village during the years 1891, 1892, and 1893. The complaint alleged the corporate character of the. town; that the defendant was a village duly incorporated under ch. 40¿ R. S. 1818, and lying wholly within the limits, of the plaintiff town, and had not at any time provided by ordinance for the support of the poor of said village, and that it had at no time a population exceeding 1,400; that the defendant had attempted to issue licenses to saloon keepers and pharmacists for the sale of spirituous and malt liquors during the years 1891, 1892, and 1893, and bad received as license moneys upon such licenses a sum aggregating $2,796, and had expended of such moneys only the sum of $9YY.34 for the relief of the poor, and had used the bálance thereof for other purposes; that the town system'for the support of the poor was in force during all said time in the county of Winnebago and the town of Winneconne; and that no part of said moneys has ever been paid to the county. The complaint further alleged demand, and the proper filing of the claim and its disallowance.'</p> <p>The answer pleaded in abatement that the defendant was never a duly incorporated village; that an attempt was made to incorporate the defendant as a village in the year 1887, •under the Revised Statutes of 1878,- but that the law under which such attempt was made was unconstitutional, and hence that such proceedings were void, and that the defendant never became incorporated.</p> <p>The facts were stipulated, and the case was submitted upon such stipulation in November, 1899, and findings were made at that time by the court to the effect that the defendant was formally incorporated June 3, 1887, under the general law then existing for the organization of villages, and that said law was unconstitutional, and hence that no such village as the village of Winneconne had ever existed. On these findings the complaint was dismissed, without costs, and the plaintiff appeals.</p>

BubNell, Circuit Judge. This action was commenced May 20,1900, to recover certain license moneys alleged to have been collected by the village during the years 1894 and 1695, under the same circumstances, except as to the time, as are set forth in the action under the same title as above, which is decided herewith, ante, p. 10.

• Appeal from a judgment of the circuit court for Green Lake county: Geo. W. Buenell, Circuit Judge.

<p>■Quo warranto: Action, by whom brought: City charter construed: Elections by council: “ Equal division”: Deciding vote.</p> <p>1. Under sec. 3466, Stats. 1898, an action of quo warranto against a person usurping the office of school commissioner in a city may be brought in the name of the state by a private person.</p> <p>2. Under a city charter providing that in elections by the common council a majority of the votes of the aldermen entitled to seats in the council shall be necessary for a choice, but that “in case of an equal division the mayor may give the deciding vote,” the mayor can cast the deciding vote only when the votes of all the aldermen are equally divided between two candidates, and not when, though one candidate has received one half of such votes the remaining votes are divided between other candidates.</p>

The relator, The Wisconsin Telephone Company, presented to the circuit court for Sheboygan county its petition for an alternative writ of mandamus, setting out the following facts: The relator is a Wisconsin corporation, organized in 1882, conducting a telephone business and maintaining telephone lines and exchanges in this state.' The defendant city of Sheboygan is a municipal corporation, and the other defendants mayor, clerk, and aldermen of said city.

Action to recover for services of plaintiff as a physician and surgeon, commenced in justice’s court May 29, 1899. Judgment was there rendered for $52.81 damages and costs. An appeal was taken to the circuit court.

Appeals from, a judgment of the circuit court for Fond du lac county: Miohael KibwaN, Circuit Judge.

This is an action to recover a deficiency arising upon the foreclosure of two mortgages, the defendant being an intermediate purchaser of the mortgaged property, who, it is alleged, assumed and agreed to pay the mortgage debt.

F. Dunwiddie, Judge. Action on an insurance policy to recover for loss alleged to have been caused by lightning. The property insured was a gristmill and sawmill operated by water power. The sawmill had been out of use for some years before the loss occurred. The dam extended across the river at right angles from east to west. The river turned southeasterly below the dam, and the westerly banks thereof were precipitous rocks.

<p>Appeal from a judgment of the circuit court for Crawford county: G-fio. OlemeNtsoN, 'Circuit Judge.</p> <p>Plaintiffs sue to recover for a bill of merchandise alleged to have been sold defendant through his agent Miller. They also claim to be assignees of several accounts contracted under similar circumstances, except as to the account of P. T. Andrews. The greater portion of this account was incurred by one Martin, who was also claimed to be defendant’s agent. The defendant answered by way of general denial.</p> <p>During the progress of the trial the defendant obtained leave to amend his answer by setting up that as to the assigned accounts the plaintiffs were -not the real parties in interest, and that said accounts were in fact owned by the persons who in fact sold the goods. The plaintiffs introduced in evidence formal written assignments of each account, and at the close of the testimony the court ruled that such assignments were valid and carried title thereto to plaintiffs, and refused to submit the matter to the jury.</p> <p>The chief controversy arose over the question of whether Miller and Martin were in fact agents of the defendant, with authority to bind him for the purchase price of the goods mentioned in the several accounts. The jury found for the plaintiffs upon each of the accounts.</p> <p>A motion to set aside the verdict and for a new trial resulted in the court entering an order granting the same, unless the plaintiffs should remit therefrom the sum of $18.50, being the amount of the account of Joseph Brothers, assigned to them. This was done, and judgment was entered for plaintiffs for $120.85, with costs. The defendant takes this appeal, and claims that the judgment should be reversed because the evidence shows plaintiffs were not the real parties in interest; because the evidence fails to show that Miller and Martin were defendant’s agents; and because .the court erred in his instructions to the jury.</p>

<p> Appeal: Findings of fact: Evidence: Immaterial errors: Trusts, </p> <p>1. The formal findings oí the trial court in this case containing conclusions of law and being silent as to the real issue of fact litigated, hut a written “decision ” having been filed, signed “by the court,” passing to some extent upon that issue, and the appellant having filed exceptions to various parts thereof, such decision is treated on appeal as a finding of fact.</p> <p>2. One to whom land has been devised absolutely cannot be charged with a trust therein in favor of another, by parol evidence as to the testator’s wishes, not showing that the execution of the will in that form was procured or induced by fraud.</p> <p>3. In a case tried by the court a reversal cannot result from error in the admission of evidence.</p> <p>4. A party who in his pleading expressly alleged that a will was duly admitted to probate cannot on appeal allege as error insufficiency of proof of the probate thereof.</p>

<p>Appeals from a judgment of the circuit court for Grant county: Geo. Clementson, Circuit Judge.</p> <p>During the times mentioned the defendant was a cripple, without the use of his lower limbs, but was able to do considerable work, and was very useful on the farm. Eor several years prior to June, 1893, when the plaintiff became of age, he had lived with and worked for the defendant. About the time the plaintiff became of age he and the defendant entered into a parol agreement in relation to the Taylor farm. In December, 1895, such agreement was reduced to writing, and signed by the plaintiff and the defendant, under their hands and seals,"in the presence of two witnesses, who subscribed their names thereto as such. Therein it was recited, in effect,, that in April, 1894, the defendant bought the Taylor farm, therein described, paying therefor $1,000 down, and agreeing to pay therefor the further sum of $1,100, according to the terms of four certain promissory notes, the last of which was to become due on or before April, 1899, and whereas the defendant had adopted the plaintiff, therefore, for and in consideration of the sum of one dollar, and for the further consideration of the premises therein, it was thereby mutually agreed and understood by and between the parties thereto that if the plaintiff should faithfully, and in good, husbandlike manner, work for the defendant in and about the cultivation and tillage of the lands described, and of the lands in addition thereto owned by the defendant, and do all such work as was generally done by a farm laborer, and should, in addition to his own labor, furnish the defendant with one good work team, from the-day of April, 1894, until the defendant should fully pay for the premises described according to the terms and conditions of the notes given therefor, then upon demand of the plaintiff, and without further costs or charges to him, the defendant thereby bound himself, his heirs, executors, administrators, and assigns, to give to the plaintiff, his heirs or assigns, a good and sufficient deed of conveyance of the undivided one-third of all the lands so described, bought as aforesaid by the defendant of O. F. Taylor; and the defendant thereby acknowledged that the plaintiff had fully performed the work required of him by the terms of the contract, up to and including the-day of April, 1894; that it was further mutually agreed and understood, by and between the parties thereto, that the plaintiff was to receive such deed for the one-third interest in the place in full'for all work and labor he should perform for the defendant, and was to receive no wages whatever, except as thereinafter set forth; that all the proceeds of the lands described and also all the other lands then owned by the defendant, over and above the necessary running expenses, and over and above the maintenance of the defendant and his family and the plaintiff, was to be applied upon and for the payment of the lands described; that the defendant thereby agreed and bound himself, his heirs, executors, administrators, and assigns, to give to the plaintiff, his heirs or assigns, at the time of the completion of the contract, and at the time of the delivery of the deed to the plaintiff, a bill of sale of one third of all the cattle then owned by the defendant over and above the number of cattle which were owned by the defendant on the-day of April, 1894, and the parties thereto thereby agreed and fixed-as the number of cattle owned by the defendant on the date last above mentioned, the division of which was to be made equitably, according to their age and quality.</p> <p>The plaintiff and defendant continued to carry on the farms under such agreement until June 19, 1899, when, owing to a disagreement, the .plaintiff left. On August 30, 1899, the plaintiff commenced this action for an accounting under such contract, and for a transfer to the plaintiff of one third of the personal property, and a conveyance to him of one third of the Taylor farm, according to the terms of such agreement.</p> <p>The defendant answered, to the effect that the statement in such agreement that the last note for the Taylor farm would become due April, 1899, was a mistake; that it should have been May 19, 1900; that there was still due and unpaid on the Taylor farm $1,485; that the net earnings of both farms had been insufficient to pay for the Taylor farm into about $1,200; that7 the defendant had, during the time mentioned, received $60 per year as town clerk, and the same had been applied towards the payment of the Taylor farm; 'that there were not more than ten head of cattle on the farm in excess of what he had in April, 1894, and they were not marketable, and if sold would not bring to exceed $250; that the plaintiff had failed to perform the contract on his part, and had always failed and neglected to furnish any work team as provided in the contract; that the plaintiff had been unsteady and unreliable, and ran away for a week in the spring of 1897, without the defendant’s consent; that July 1,1899, the plaintiff refused to longer work for the defendant, against the defendant’s objection, and left in violation of his contract, to the great damage of the defendant; that the purchase price of the Taylor farm was $2,700, and the $1,000 paid down was borrowed, and had to be repaid; that the plaintiff had always had his board, clothing, and spending money, and bad not been worth any more.</p> <p>During the trial of the cause, and pursuant to a suggestion from the bench, on November 7, 1899, the plaintiff and defendant entered into an agreement, in writing, to submit the matters in controversy between them to arbitrators, which agreement, with the recitals therein, is to the effect that whereas, the contract upon which the action was based was made in December, 1895, but was intended to relate baok to the time when the plaintiff became of age, in June, 1893, according to his contention, but according to the defendant’s contention was only to relate back to September, 1893, the original of which was filed in the action with the clerk of the court, November 6,1899; that the court having heard some testimony in the case, and having then from the bench suggested to the parties that it was a case that ought to be compromised by them without further litigation, and the parties to the action having agreed to submit their respective claims under said contract to two arbitrators, namely, Joseph T. Lance, of Crawford county, and Evor Christianson, of "Waterstown, they to be the sole arbitrators in this matter, and to be governed as sucb arbitrators by the provisions of ch. 153, Stats. 1898, it being a part of the submission that the plaintiff, Andrew MoOord, waives, for the purposes of this arbitration, and finally if judgment be entered upon the award made by such arbitrators, all claims that such contract might give him to the Taylor farm therein mentioned, and to accept only a money award in his favor for such sum as, under such contract and the testimony given before them, such arbitrators shall determine he should justly receive; and that a judgment of the circuit court should be rendered upon the award made pursuant to this submission, and that said action then pending should remain in abeyance until said arbitrators should make their award and judgment should be rendered thereon, unless the court in this action, by its order, should otherwise provide;' and that upon the rendition of said judgment said action should be abated and dismissed without costs to either party, and that the costs of the arbitration and incident thereto should be paid by the parties, or one of them, as the arbitrators might determine, and that the judgment upon the award should include costs in accordance with the determination of the arbitrators; such arbitrators to be sworn as provided by sec. 354/T in said ch. 153, and to be in all respects governed by the provisions of said chapter in their doings as arbitrators, and to be limited in what they do by the provisions of said chapter. It was further agreed, as a condition of such arbitration, that the witnesses to be sworn and examined before said arbitrators should be limited to six on each side, in addition to the parties to this controversy; that said arbitrators should meet for the purpose of qualifying, and for such further business ■as they might determine then to do regarding such arbitration. It further provided for the meeting of the arbitrators, and that a copy of such submission be sent to each of them. The arbitrators were duly sworn as thus required.</p> <p>On December 27, 1899, the arbitrators made their award in writing, as follows (omitting title of,the case):</p> <p>“ We, the undersigned arbitrators of the case above stated, did meet at the town hall in Boscobel on the 12th day of December, 1899, and did then and there proceed to hear the evidence offered by the plaintiff and defendant, both parties being present, and after carefully considering the evidence, and viewing the premises, stock, and improvements now in possession of the defendant, we find for the plaintiff, Andrew MoOord, and determine that said plaintiff shall have judgment for ($1,092.17) one thousand ninety-two dollars and seventeen cents, and that the plaintiff and defendant shall each pay equal parts of all costs of this case, exclusive of attorney’s fees.</p> <p>“ Dated December 27, 1899. J. T. Lane,</p> <p>“Witness: Evob Oheistianson,</p> <p>“ Jennie Lance. Arbitrators.”</p> <p>Accompanying such award was a written explanation of the arbitrators, to the effect that, in settling the trouble between Andrew MoOord and Peter Flynn, they found that the Taylor farm was then worth, and would sell for, $3,500 cash; that the stock, with the cash on deposit, would pay all the debts, including the debt on the farm, except $223.49, and as it was fairly understood by them that the design of both parties, as shown by the contract, was that Flynn should have two thirds, and McCord one third, of the profits of their investment, therefore they deducted $223.49 from the cash value of the farm, and divided the remainder ($3,276.51) by three, giving to MoOord $1,092.17; that they considered that Flynn sustained a damage by MoOord leaving him June 19, 1899, as the growing crop at that time of the year needed immediate care, therefore they allowed Flyrm the improvements which had been placed upon his own farm,— a well, cellar, corncrib, and cow shed; this they decided would make good to Flywn all damages he sustained by McCord?s leaving him; that they could not, under the contract, allow Kate Flynn anything, nor Peter Flynn any clerk hire, as he claimed, for they believed the intention was for both parties to devote their whole time and energy to the paying for the farm; that they had finished their investigation, and made their award, and submitted the whole proceedings to the court, feeling that they had discharged their duty as arbitrators to the best of their ability. Signed by the arbitrators.</p> <p>Six days after the making of such award the said arbitrators corrected the same in writing, to the effect that they had on that day discovered an error in the award, caused by an oversight, in which nine head of .cattle which belonged to the defendant in 1894 were not counted to his credit; that said nine cattle they valued at. $247.50 in the aggre-. gate; and therefore they corrected tlfe award by deducting one third thereof, being $82.50, which left the award, as corrected, $1,009.67.</p> <p>On June 6, 1900, the court denied the plaintiff’s motion to confirm the report and for judgment thereon in his favor, and also denied the defendant’s motion to vacate and set aside the award; and thereupon the court further ordered that such award be, and the same was thereby, modified in this: that the sum of $100, being one third of the fees received by Peter Flynn as town clerk, credited to the plaintiff as a part of his interest in the earnings of Peter Flyrm, be deducted from the interest the plaintiff had in the place or the proceeds thereof; that the sum of $131.67, being for one third of the value of Kate Flynn’s services, and which sum was credited to the plaintiff as a part of his interest in the earnings of the defendant, Flynn, be deducted from the interest the plaintiff had in the place or the proceeds thereof; that the aggregate amount of the two sums, being $231.67, be deducted from the amount awarded to the plaintiff, as corrected, leaving the sum of $778 as the true amount, and that the plaintiff have judgment for that amount; that each party pay his own costs, and that no costs be taxed except those of the arbitrators, stenographer, and the clerk of the court, which said costs are to be paid by the said parties in equal shares; that the said award be and the same was in all other things confirmed. Rrom the judgment entered upon the award, so corrected and modified, both parties appeal to this court.</p>

B. Wymam, Circuit Judge. This is an action by the plaintiff, as administrator of the estate of one Blair Decker, deceased, to recover damages for the death of said Blair Decker, such death having resulted from the kick of a horse owned by the defendant.

<p> Appeal: Judgment: Wills: Construction: Precatory Inst: “Provision” for after-born children. </p> <p>1, The decision of the circuit court upon an appeal from the county court, though in form an order, is a judgment ajid appealable as such.</p> <p>2. A will gave all the testator’s property to his wife, but stated that it was his wish that such property “ or so much thereof as my said wife may be possessed of at her decease shall go to or be by her given to our child or children, if any there' be then living.” At his death the widow was of an age rendering a second marriage among the probabilities. He left three minor children, two being girls and the youngest a boy, two of whom were bom after the execution of the will. The estate was so large that the testator must have expected that the income thereof, under proper management, would exceed the amount necessary to support his widow in comfort during her life and provide for the support and education of the children. Held, that the will should be read as intending to give the property to the widow for life, with remainder over to such of testator’s children as should survive her, and making her a trustee of the property so far as required to effect that purpose.</p> <p>3. If such will were construed to give the widow the whole estate absolutely, it could not be sustained as against the two children bom after its execution. [Whether, when construed as giving a contingent remainder to such children, it makes a “ provision” for them, within the meaning of sec. 2386, Stats. 1898, not determined.]</p>

<p>Appeal from a judgment of the circuit court for Yernon county: E. W. Helms, Judge.</p> <p>Action to recover damages for personal injuries. Plaintiff was steersman on a tractipn engine weighing 9,500 pounds. In attempting to cross a bridge in the- defendant village, it broke down, and plaintiff was precipitated into the stream and received serious injuries. The bridge had been built some twelve or thirteen years. Its timbers were badly rotted, and the braces decayed considerably. Plaintiff was familiar with the bridge, passing over it daily, but had never noticed its defective condition. He had known the bridge twelve or thirteen years, and the only repairs he knew had been done .to it were that it had been replanked. It had. a span of twenty feet, and broke nearly in the middle. Before crossing, the bridge was spanned by elm planks two inches thick, from twelve to fourteen feet in length, and from eight to ten inches wide. Testimony was offered and received showing the manner in which the planks were laid, the care used in crossing, the rotten and defective condition of the timbers and braces, and that the average life of a wooden bridge was about eight years.11 At the close of plaintiff’s testimony a motion was made for a nonsuit, on the ground that the evidence affirmatively showed a failure to comply with snbd. 5, sec. 1, ch. 191, Laws of 1899, and that plaintiff was guilty of contributory negligence. The motion was granted, the court stating, among other things, that “ I don’t think the court can take judicial notice of the fact that traction engines are in common use over the highways in this vicinity.” Erom a judgment for defendant the plaintiff brings this appeal.</p> <p>argued, among other things, that municipalities may be responsible for injuries even though the plaintiff was using the highway .in an wn-aommon manner. Unless such “ uncommon use ” is one that might not have been anticipated by the municipal authorities by the exercise of reasonable prudence and care, considering the kind, nature, and extent of public travel in that vicinity, and increases the danger of an accident, the highway must be maintained in a reasonably safe condition for such use. Anderson v. St. Cloud, 79 Minn. 88; Gregory v. Adams, 14 Gray, 242; Wilson v. Granby, 47 Oonn. 59, 36 Am. Rep. 51; Vermillion Co. Comm’rs v. Chipps, 131 Ind. 56; ■Shelby Co. Comm’rs v. Castetter, 7 Ind. App. 309. The question of contributory negligence, or rather the question whether the plaintiff was subjecting the bridge to an unusual and extraordinary load, is a matter of defense to be •alleged, and the evidence upon which the same is predicated submitted to the jury for decision. There can be no presumption that the use of traction engines upon the public highways is an extraordinary use thereof. Vhat is a probable, ordinary, and usual use is as much a matter of fact for the jury .as is the question as to whether or not the bridge was in a' reasonably safe condition, or whether the ■defendant could by the exercise of reasonable diligence have discovered its defective condition. Yordy v. Marshall, 80 Iowa, 405, 86 Iowa, 340; Wabash v. Carver, 13 L. R. A. 851; Clcvrlt Co. Comm’rs v. Brod, 3 Ind. App. 585; Gregory v. Adams, 14 Gray, 242; Hardin Co. Comm’rs v. Coffman, 48 L. R. A. 455; Moore v. Hazelton, 118 Mich. 425; Allen Co. ■Comm’rs v. Creviston, 133 Ind. 39; La Porte Co. Comm’rs v. Ellsioorth, 9 Ind. App. 566; Coulter v. Pine, 164 Pa. St. 543; “Clapp v. Ellington, 51 Hun, '58; Bemhart v. Martin Co. Comm’rs, 9 Ind. App. 572; Clulow v. McClelland, 151 Pa. St. ■583, 17 L. R. A. 650.</p> <p>They contended, inter aUa, that the village officers were only required to construct a bridge strong enough for the usual and ordinary travel thereover at the time of its construction ; they are not compelled to anticipate extraordinary loads. Mc-Oormiok v. Washington, 112 Pa. St. 185; Fulton I. <& E. Works v. Kimball, 52 Mich. 146; Ha/rdin Go. Oomm’rs v. Coffman, 48 L. E. A. 455; Glulow v. MoOlellmid, 151 Pa. St. 583; Allen Go. Gomm’rs v. Greviston, 133 Ind. 39; Clapp v. Ellington, 51 Hun, 58; Megargee v. Philadelphia, 153 Pa. St. 340; Medina v. Perkins, 48 Mich. 61; Chicago v. Kohl-hof, 64 Ill. App. 349; Stebbins v. Keene, 60 Mich. 217; Spencer v. Sardmia, 42 App. Div. 472; Bonebrakev. Huntington Go. Gomm’rs, 141 Ind. 62; Dexter v. Canton T. B. Go. 79 Me. 563; Pichardson v. Poyalton <& W. T. P. Go. 5 Mt. 580; Woodbury v. Owosso, 64 Mich. 239; O’Weil v. Deerfield, 86 Mich. 610; 4 Am. & Eng. Ency. of Law (2d ed.), 935; Elliott, Eoáds & S. (2d ed.), § 40; 8 Cent. Dig. col. 1145. Noncompliance with ch. 197, Laws of 1899, bars a recovery. Sec. 154, ch. 568, Laws of N. T. 1890; Bush v. D., L. <& W. B. Co. 166 N. T. 210; No. 173, Laws of Pa. 1885; Comm, v. Allen, 148 Pa. St. 358; sec. 3, ch. 50, E. S. Me.; Dexter v. Ga/nton T. B. Go. 79 Me. 563; sec. 5, ch. 68, Laws of Iowa, 1892; State v. Orr, 89 Iowa, 613; Welch v. Geneva, 110 Wis. 388.</p>

<p> Appeal: Findings of fact: Evidence: Judgment. </p> <p>1. Upon evidence fairly justifying either of two inferences, the decision of the trial court must control.</p> <p>2. In an equitable action, upon a motion to dismiss at the close of plaintiff’s testimony, the proper practice is to make findings and render judgment on the merits.</p> <p>3. Plaintiff offered in evidence, to be used only as admissions, a deposition of one of the defendants previously taken at plaintiff’s instance. Objection being made because the witness was present, the court ruled, in effect, that if the deposition was introduced, it would constitute said defendant plaintiff’s witness, subject to the ordinary rules against impeachment. Plaintiff did not thereafter attempt to introduce the whole deposition, but was allowed to introduce such specific portions of it as he did offer. Held, that there was no error in the ruling.</p>

<p> Real-estate agents: Commissions: Evidence. </p> <p>1. Defendant agreed to pay plaintiff, a broker, a commission “on sale-of my farm, or any jjart of it, at a price accepted by me. Tliis commission only to be paid in case of sale to a party to whom said [plaintiff] has offered the property.” Plaintiff was the first, real-estate agent who offered the property to one H,, although H. had previously been informed by his son-in-law that the property was for sale. • H. afterwards bought a part of the farm through another agency. Held, that plaintiff was entitled to the commission.</p> <p>2. In an action to recover such commission, evidence as to plaintiff’s efforts to sell the land to other persons, and as to an offer secured by him of a greater amount than that paid by H., which offer was-. rejected- by defendant, was properly excluded.</p>

<p>Eeeob to review a judgment of the municipal court of Milwaukee county: Emil Wallbee, Judge.</p>

<p>Error to review a judgment of the circuit court for Man-itowoc county: Michael KirwaN, Circuit Judge.</p> <p>The plaintiff in error was convicted of the crime of murder-in the first degree. On July 27,1898, about 5 o’clock p. m., Elizabeth Hempton, the wife of plaintiff in error, was shot through the head and instantly killed in the home occupied by him. For some time before such occurrence the deceased and her husband had not lived happily together. She commenced a suit against him for divorce, which was discontinued, and the parties resumed living together. About one year thereafter, and shortly before the alleged homicide, she again left her husband and commenced an action for divorce. At the time of the occurrence in question Hemp-ton was engaged in the business of draying and maintained a home, his sister being his housekeeper. At such time, while Hempton was away at his work, his wife visited his home and took therefrom some things which she claimed were hers. About noon of the same day she made a second visit to the house and took away some things, Hempton being at home on such occasion. He then told his wife to come the next day for the balance of her things. During the afternoon, in his absence, she made several visits to the house. Hempton returned home between 4 and 5 o’clock p. m. and directed bis daughter, a girl then about ten years of age, to go to a neighbor’s near by to request her mother, who was there, to come to his house. The girl did as directed, and Mrs. Hempton promptly complied with the invitation. While the girl was gone upon such errand Hempton walked the floor of the kitchen. When Mrs. Hempton arrived the two went into the front room of the house, there being a sitting room between such room and the kitchen. The sister remained in the kitchen. The little girl was outside the house. Angry words were soon heard to pass between Hempton and his wife. She stamped her foot and gave the lie to her husband, when immediately a revolver was discharged twice in the room. Almost immediately thereafter Hempton returned to. the kitchen with a revolver in his hands. The little girl saw her mother in the front room soon after the first shot was fired, lying on the floor apparently unconscious, and saw her father turn the revolver upon himself and discharge it.</p> <p>Soon after such occurrence officers of the law visited the house, where they found the dead body of Mrs. Hempton on a chair in the kitchen, also found some bedclothes and a pillow covered with blood in the front room, and a revolver, stained with blood, lying on the bureau in the bedroom, two of the chambers thereof being empty. They arrested the plaintiff in error. He had a wound on the right temple and one back of and a little above the ear on that side of his head, both apparently caused by a bullet fired from behind. A bullet entered Mrs. Hempton’s head on the right side just in front of and above the ear, passed through the skull, and lodged in the scalp directly above the ear on.the left side of the head. The side of her head where the bullet entered was powder burned.</p> <p>The day after the alleged homicide Hempton said that he thought he would scare his wife and that he guessed he scared her more than be intended. He was placed on trial on the charge of murder in the first degree. The theory of the state was that he deliberately shot his wife and then turned the revolver upon himself and inflicted the wounds on his head that have been mentioned. The theory of the defense was that Hempton was insane and irresponsible at the time of the alleged homicide, that the shooting of his wife was accidental, or that, if he elid the deed and was criminally responsible therefor, he was guilty of some offense less than murder in the first degree because of his mind being in such a condition from partial insanity, dr from drunkenness, or from uncontrollable passion at the time of the occurrence, that there was no premeditated design on his part to kill his wife. There was a special plea of insanity and a plea of not guilty.</p> <p>The verdicts upon both issues were against the--accused, he being found guilty of the highest offense of criminal homicide. Sentence was passed accordingly. Exceptions were taken to rulings of the court during the progress of and subsequent to the trial, which are considered in the opinion.</p> <p>argued, among other things, that in .criminal cases, and especially in capital felonies, where members of the jury are permitted to read editorial comments unfavorable to the accused, a new trial ought always to be granted. People v. MeOoy, 71 Cal. 395; Garter v. State, 9 Lea, 440; Walker v. State, 37 Tex. 366; People v. StoTces, 103 Cal. 193; Farrerv. State, 2 Ohio St. 54; Mattox v. 1J. S. 146 TJ. S. 140; State v. Walton, 92 Iowa, 455; Cartwright v. State, 71 Miss. 82; 17 Am. & Eng. Ency. of Law (2d ed.), 1248, subd. 1. If the jury separate in a capital case, there must be a new trial unless it be shown affirmatively by the state that no harm results. Thompson, Trials, § 2549; Keenam, v. State, 8 Wis. 132; Rowa/n v. State, 30 Wis. 129; State v. Polling, 37 Wis. 396. The use of intoxicating drinks by the jurymen and by the officers in charge was misconduct warranting a new trial. Roman v. State, 41 Wis. 316; Jones v. State, 13 Tex. 168,179; Brown v. State, 137 Ind. 240; State v. Baldy, 17 Iowa, 39; People v. Pouglass, 4 Cow. 26-36. Where drinking is attended with other acts of misconduct, as the separation of the jury, the verdict will the more readily be set aside. Greelc v. State, 24 Ind. 151; Davis v. State, 35 Ind. 496-499; State v. Prescott, 7 N. II. 289; Jaclcson v. Jaclcson, 40 Ga. 150;-Thompson, Trials, § 2567; Studley v. Pall, 22 Me. 198.</p> <p>They contended, inter alia, that a verdict should not be set aside for the misconduct of the jurors in drinking intoxicating liquors, where there is no reason to suspect that it influenced the verdict. Roma/n v. State, 41 Wis. 312; Clifford v. State, 58 Wis. 477; Grottkau v. State, 70 Wis. 462; State v. Jones, 7 Nev. 408; Tuttle v. State, 6 Tex. App. 556; State v. Livingston, 64 Iowa, 560; People v. Van Horn, 119 Cal. 323; People v. Leary, 105 Cal. 486; People v. Sansome, 98 Cal. 235. See, further, State v. Oucuel, 31 N. J. Law, 249; 12 Ency. of PI. & Pr. 607; Rowe v. State, 11 Humph. 491; Browning v. State, 33 Miss. 48; Doyal v. State, 70 Ga. 134; State v. Fairlamb, 121 Mo. 137; State v. Hunter, 18 Wash. 670; Jones v. People, 6 Colo. 452.</p>

<p>EeboR to review a judgment of the circuit court for La Eajette county: Geo. CueMENtsoN, Circuit Judge.</p> <p>Plaintiff in error was informed against for murder, with one Daniel Collins. A separate trial was granted. Before pleading to the information,-he entered a so-called “plea in abatement,” based upon the following facts:</p> <p>On December 20, 1896, one Joseph H. Clary, as justice of the peace, held an inquest over the body of Edward W. Hale, the deceased, and as a result the jury returned a verdict finding that Hale came to his death by blows inflicted either by Collins or plaintiff in error. The justice issued his warrant for the arrest of the latter on the charge of murder, and conducted an examination. At the close thereof he made the following finding: “This court finds and adjudges that there is not good reason to believe the offense stated in the complaint here has been committed, and that there is no probable cause to believe said defendant guilty of said offense, and thereupon the said defendant is discharged, and the costs herein taxed to said county.” Thereafter, and on February 26,1897, a court commissioner, upon a complaint charging the'plaintiff in error with having committed the same offense, issued his warrant, he was again arrested, and a second preliminary examination was held.</p> <p>The plea sets up that the court commissioner had no right to hold such examination because of the adjudication of the justice aforesaid, and because the district attorney did not thereafter discover admissible evidence sufficient, in his judgment, to convict the accused, and that the district attorney who conducted the last examination was not the same person who conducted the former one. The claim was that the finding of the justice that no offense had been committed was res adjudicaba and a bar to any and every subsequent arrest or examination for the offense charged in the information.</p> <p>To this plea the district attorney made answer, setting up'the first examination; the discharge of the accused; the discovery of new evidence; the issuing of a second warrant and arrest thereunder; the proceedings upon the examination; the fact that nine witnesses were sworn who had not given testimony on the first examination; the finding that a homicide had been committed under circumstances which constituted manslaughter in the fourth degree, and as to the probable guilt of the accused; and the holding to bail.</p> <p>Both sides asked that the issue be tried by the jury, but the court ruled that the question at issue was one of "law, and proceeded to take proof of the facts alleged. The district attorney testified that new evidence had been discovered and several witnesses sworn who had not given testimony on the former examination, and spoke of such evidence in detail. The court finally overruled the plea. The accused entered a plea of not guilty, and the trial then proceeded.</p> <p>The facts out of which the homicide arose may be briefly stated as follows: The accused attended a dance at Collins’s Hall, in the village of G-ratiot, and was one of the floor managers. Daniel Collins, his codefendant, was the other. The deceased, his brother, and one William Pinney, among others, were in attendance, and became somewhat intoxicated. About midnight, deceased’s brother, Lewis Hale, got into an altercation with one William Buche. Both floor managers started towards the place to quell the disturbance. The evidence as to what occurred is somewhat in dispute. While the floor managers were attempting to preserve order, the deceased came up, and was hit on the right side of his head by Collins, with a cane weighing about thirteen ounces. This was followed by a blow from a chair in the hands of the accused. The chair weighed ten pounds and ten ounces. Only one wound was found on the head of the deceased. This was on the right side, and was of such a character as to cause death. The skull was badly fractured. The chief controversy was as to whether the blow with the cane or the chair caused death. The evidence of accused showed that he had just warned Lewis Hale that they did not want any disturbance, when the deceased came up and struck him a powerful blow in the face, bruising and injuring one of his eyes. He saw Pinney rushing for him, and he immediately grabbed a chair, and made a pass at the deceased, which he warded off with his left hand. The forefinger of the left hand of deceased was found to have been broken. He claimed that he raised the chair because be thought deceased- was coming for him again. It all occurred in a very short space of time, and the witnesses do not agree as to all the circumstances of the aifray. Deceased was of muscular build, six feet tall, and weighing about 170 pounds.</p> <p>It seems to have been conceded that the accused had no intention of killing deceased, and that as floor manager it was a part of his duty to preserve order. The defense was that the homicide was either justifiable or excusable. The court declined to submit the question of excusable homicide to the jury, but gave instructions as to justifiable homicide. The verdict was manslaughter in the third degree, and the sentence was two years in state prison. A inotion for ’a new trial, on the ground of errors in the rejection and reception of evidence, errors in giving and refusing instructions, and for newly discovered evidence, was denied. A stay of proceedings was granted pending the prosecution of the writ of error by the accused.</p> <p>To the point that the adjudication of the justice on the first preliminary examination was in form - and effect an adjudication that no offense had been committed, and as between the state and the plaintiff in error this adjudication was final and conclusive, they cited State ex rel. Dilworth v. JBraun, 31 Wis. 600; StMe v. leieham, 41 Wis. 573; State v. Bindshopf, 34 Wis. 217.</p> <p>They contended, inter alia, that such an assault as was made in the case at bar is an assault with a dangerous weapon. U. S. v. Small, 2 Curtis, C. C. 241; State v. Bigg, 10 Nev. 284; Blige v. State, 51 Am. Rep. 628; Miller v. State, 106 Wis. 156, 164.</p>

W. Helms, Judge. For more than a year prior to February 1,1893, the plaintiff, Addie M. Shorn, in association with George H. Hopper, under the firm name of N. Shaw & Co., was engaged in a foundry business at Eau Claire, where was located the National Electric Manufacturing Company, engaged in the manufacture and sale of electrical machinery, dynamos, generators, and the like, involving the taking of considerable contracts for the installation of electric plants.

<p>Railroads: Condemnation of land: Res judicata: Prbceeding by land owner: “Assumption” of debt includes promise to pay: Practice: Definiteness in petition and findings.</p> <p>1. The decision in a condemnation proceeding instituted by one of several persons similarly situated and injured by the construction of a railroad in a street, is not conclusive, as res judicata, in a similar proceeding by another of such persons, but is authoritative under the rule of stare decisis.</p> <p>2. Although sec. 1296a, Stats. 1898, giving to an abutting lotowner a right to compensation for injury from the construction of a railroad in the opposite side of the street, gives right of condemnation only to the railroad company, the lotowner may nevertheless institute condemnation proceedings under sec. 1852 where the company delays or omits to do so.</p> <p>8. The “assumption” by the grantee, as part of the consideration for the conveyance of railroad property, of all the existing debts, liabilities, and obligations of the grantor company, includes a promise to discharge each debt or liability to the same person and in the same manner as the grantor was bound to do. Such promise evinces an intent to benefit the creditors, and they may sue directly thereon.</p> <p>4. It having been for' many years the settled law that an agreement, by the grantee in a conveyance, to assume a debt of the grantor confers a right of recovery upon the third party creditor against the grantee, it must be presumed that the parties to such an agreement intended that result, - •</p> <p>5. Sec. 1846, Stats. 1898, being framed to regulate condemnation proceedings instituted by a railroad company, is not literally applicable to a proceeding instituted by a property owner under sec. 1852 to secure compensation for land already taken; and in such case - the ordinary rule'as to liberality in the construction of pleadings should apply.</p> <p>6. In such a proceeding, however, the petition, findings, and judgment should be so definite as to leave no uncertainty as to the land affected or the rights of the company therein. In this case a certain lack of definiteness and specification, which might have been cured had proper objection been made, is held not so great, when the finding is construed in the light of the entire record, as to be prejudicial to the appellant company.</p>

0. Ludwig, Judge. Appeal from a judgment dismissing plaintiff’s complaint, in an action against the trustees and heirs of the estate of Harrison Ludington, deceased, to rescind, on the ground of fraud, a contract whereby the plaintiff, his widow, surrendered her legal rights in such estate, and to recover the damages she sustained by being induced, as alleged, to enter into such contract.

<p> Counties: Bridges: Aid to town: Contrasts: Power of commissioners. </p> <p>Under sec. 1319, Stats. 1898 (providing that in certain cases, upon petition of the town board, the county board shall appropriate one half of the cost of the construction of a bridge and shall designate two of its members as its commissioners to co-operate with the town board, and that such board and said commissioners shall have full charge and authority to aot in the letting, inspection, and acceptance of the work), neither the commissioners alone nor the commissioners and the town board together have any authority to bind the county by a contract for the construction of a bridge.</p>

<p>Appeal from a judgment of the circuit court for St. Croix ■county: W. C. Silvebthobn, Judge.</p> <p>This is an action by St. Croix County to recover back from the defendant alleged illegal fees which had theretofore been paid by the county to the defendant in his capacity as ■ clerk of the circuit court. It appears from the evidence that the defendant was clerk of the circuit court of St. Croix County for six years, being from 1891 to 1896, inclusive; 'that during that time he rendered annual bills to the county board for services claimed to have been performed by him, • as such clerk, for and on behalf of the county, which bills were duly audited and paid; and it is now claimed that a ■considerable number of items in each of said bills were unauthorized and in excess of the fees allowed by statute to the clerk of the circuit court, and this action was brought to recover back such unauthorized fees. The complaint contained six counts, being one for each year. A general demurrer was interposed to the complaint, and a separate ■ demurrer to each count thereof, on the grounds that the court had no jurisdiction and that it did not state facts suf-ficient to constitute a cause of action. ' The first count was also demurred to on the ground that the same was barred by the statute of limitations. All the demurrers were overruled, except the demurrer to the first count of the complaint, which was sustained on the ground that the same was barred by the statute of limitations.</p> <p>The defendant having answered, the ease was tried before the court, jury trial having been waived. The court found generally in favor of the plaintiff on all the items claimed to be recovered by the county in the last five counts of the complaint, except as to an item for drawing certain reports of a committee of the county board, and upon such findings judgment was entered in favor of the plaintiff and against the defendant for the sum of $1,250.55 and costs. From this judgment the defendant appeals.</p> <p>They contended, inter alia, that when a claim is regularly presented to the county board for allowance or disallowance, the board in allowing or disallowing it, or any part thereof, acts judicially and its action thereon is conclusive upon the parties until reversed or set aside by a proper proceeding, appeal or certiorari, for that purpose. The conclusiveness of the judgment or allowance of the claim by the county board can be attacked collaterally only upon the ground of fraud or absolute want of jurisdiction. Heald v. Pollc Go. 46 Neb. 28; Ragoss v. Cuming Go. 36 Neb. 375, 46 Neb. 36; Cuming Go. v. Thiele, 48 Neb. 888; 'State ex rel. Franlclvn Go. v. Vincent, 46 Neb. 408; Sioux Go. v. Jameson, 43 Neb. 265; State ex rel. Ensey v. Churchill, 37 Neb. 702; Dixon Go. v. Barnes, 13 Neb. 294; Wayne Go. v. Ra/ndall, 43 Mich. 137; Ad/vertiser ds T. Go: v. Detroit, 43 Mich. 116; 1icArthwr v. Dace, 43 Mich. 435; Regents'of University of Mich. v. Rose, 45 Mich. 284; Perry v. Ohéboygan, 55 Mich. 250; El Dorado Go. v. Elstner, 18 Cal. 144, 149; Tilden v. Sacramento Go. 41 Cal. 68; Golusa Go. v. De Jarnett, 55 Cal. 373, 375; Placer Go. v. Campbell-, 11 Pac. Eep. 602; Cox v. New York, 103- N. Y. 519, 527; People ex rel. Case v. Collins, 19 Wend. 56, 58, 64; People ex rel. Board, of Health v. Dutchess, 9 Wend. 508; Sup’rs of Onondaga Co. v. Briggs, 2 Denio, 26, 31-41; People ex rel. Cent. Nat. Bank v. Fitzgerald, 54 How. Pr. 1; Martin v. Greene Co. 29 N. Y. 645; Chenango v.- Bwdsall, 4 Wend. 460; Comm’rs of Soioto v. Gherky,~Wright, 494; Brewer v. Boston, C. <& F. B. Co. 113 Mass. 56; Board of Comm’rs of Warren Co. v. Gregory, 42 Ind. 32; Stats. 1898, sec. 699, subd. 1; Id. secs. 676, 682-685; Stringham v. Winnebago Co. 24 Wis. 594; Outagamie Co. v. Greenville, 77 Wis. 165,171; Sharp v. Mansion, 92 Wis. 629; Land, L. & L. Co. v. Molntyre, 100 Wis. 258, 262.</p>

<p> Benefit societies: Void proceeding: Appeal to grand lodge: Refusal to receive assessments: Waiver of tender: Prohibited business: Expulsion: Forfeiture of beneficiary rights. • </p> <p>1. An appeal from an inferior to a superior tribunal (in this case from the local lodge to the grand lodge of a mutual benefit society) to avoid the effect of an absolutely void proceeding is unnecessary.</p> <p>2. Where a member of a mutual benefit society has been notified that the lodge will not receive any more money from him because he is no longer a member, his rights will not be prejudiced by a failure to tender payment of assessments subsequently made.</p> <p>3. A by-law of a mutual benefit society providing that any member who shall after a certain date enter into the business of selling liq-iior by retail shall be expelled from the order, applies to a member not actually engaged in the prohibited business at the time mentioned, even though he had been so engaged at the time his certificate was issued.</p> <p>4. Where notice and a hearing are required in such a case, by the terms of the insurance contract, before expulsion can take place, affirmative action to that end is essential to forfeit the rights of the beneficiary, so far as such rights depend on mere membership of the insured in the order.</p> <p>5. Where the insurance contract expressly provides that there shall be no liability on the beneficiary certificate unless the member shall in every particular comply with all the laws of the order, a violation of any such law by a member ipso facto terminates all liability under his certificate.</p> <p>6. A by-law of a mutual benefit society providing that any member who thereafter engages in the sale of intoxicating liquors shall be expelled from the order, by necessary implication prohibits members from entering into such business.</p>

<p> Appeal from, judgment: Orders reviewable: Justices' courts: Removal for prejudice: Amendment of affidavit. </p> <p>1. Where an action had been removed from a justice of the peace on the ground of prejudice, and then taken by appeal to the circuit court, an order of the circuit court permitting the justice to attach his signature nunc pro tunc to the jurat of the affidavit of prejudice is reviewable on appeal from the judgment of the circuit court, under sec. 3070, Stats. 1898, although not brought into the 'record by a bill of exceptions. Hewitt v. Follett, 51 Wis. 264-, followed.</p> <p>2. Such amendment of the affidavit was properly permitted under seo. 2830, Stats. 1898, upon proof that the oath had in fact been administered by the justice and that all requirements of sec. 3616 had been met, the oath being sufficient even without an, affidavit.</p>

<p>Appeal: Notice of motion: Withdrawal: Record: Bill of exceptions: Judgment after reversal: Res judicata.</p> <p>1. On the same day respondent served a notice of motion to dismiss an appeal and a notice of motion to strike certain papers from the record. Two days thereafter he served a notice that “ the annexed notice of motion to dismiss the appeal ... a copy of which is hereto annexed is hereby withdrawn.” Annexed thereto were copies of the notice and motion to strike out. Held, that the motion to strike out was withdrawn.</p> <p>2. Steps taken in the trial court which do not properly become a matter of record can come before this court only by a bill of exceptions settled and authenticated as such by the trial judge. A declaration of the trial judge, appended to an order sustaining a demurrer, to the effect that the order was excepted to on certain grounds specified, is no proper part of the record on appeal and cannot be considered.</p> <p>3. Where an order overruling a demurrer is reversed and the cause remanded “ for further proceedings according to law,” a judgment subsequently entered by the trial court does not become the judgment of the supreme court, but is subject to review on appeal.</p> <p>4. A decision on appeal that a complaint fails to state any cause of action must control both the trial court and this court at all subsequent stages of the same case, no matter what new or different arguments may be urged against its correctness.</p>

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

Action to obtain a conveyance of real estate upon the .ground that the defendant was a constructive trustee thereof for plaintiff. The cause was tried by the court.

<p>Appeal from a judgment of the circuit court for Pierce county: E. W. Helms, Circuit Judge.</p> <p>This action is to recover damages growing out of certain false representations claimed to have been made to induce the plaintiffs to enter into a contract with the defendant to ream and case a well on the defendant’s farm. The complaint sets out a written contract, under which the plaintiffs agreed to ream and drill a well on defendant’s farm of sufficient size to admit five-inch oil-well casing, to the depth of three hundred and twenty-eight feet, or to the lower edge of the St. Peter sandstone, or deeper, if necessary to secure a supply of water sufficient for all the stock kept on defendant’s premises, for the sum of $300. The plaintiffs are alleged to have been induced to enter into this contract upon the representation by defendant that the well was free from all foreign matter or objects that would obstruct the work, which representations are alleged to have been untrue. It is alleged that after the work had been commenced, and after the drilling and reaming had proceeded to the depth of two hundred and forty-eight feet, the plaintiffs encountered some object of an iron or metallic nature, which stopped their progress and rendered it impossible to continue the work, and they were compelled to abandon it and were put to great expense and labor in removing their tools, etc. Their damages are placed at the sum of $920, for which they demanded judgment.</p> <p>” The answer denies making the representations alleged, denies that the well was obstructed, and alleges that they were compelled to abandon their work because they attempted to drive the well casing without having reamed the well properly. The answer also contains a counterclaim for damages for failure to complete their contract. To this counterclaim a reply was served, putting the matters therein stated in issue. The case was tried, and the jury returned a verdict of no cause of action as to the claims of both parties. From a judgment for the defendant the plaintiffs have taken this appeal.</p>

<p> Slander: Evidence: Instructions: Immaterial errors: Damages: Mitigation: Presumptions: Punitive damages: Mental suffering: Court and jury: Improper argument of counsel. </p> <p>1. While defendant’s counsel in an action for slander was opening the case the court ruled that he would not be permitted to show trouble between defendant and one of plaintiff’s witnesses; but, upon argument, immediately withdrew the ruling and reserved the question until the witness was called, w'hen no adverse ruling was made. Meld, not prejudicial.</p> <p>2. Objection to evidence of substantial repetitions of a defamation at times other than those specified in the complaint being first made during the opening argument, the court ruled that such evidence was admissible only as tending to prove express malice. Held, that if the defendant desired such restriction further impressed upon the jury, a request therefor should have been made.</p> <p>3. Except in case of the omission of ariv instruction whatever upon vital issues, error cannot be assigned upon refusal to give an instruction unless it was formally requested in writing.</p> <p>4 A witness should not be permitted to testify to his understanding of words charged as slander. In this case, however, the words as to which the witness testified not having been charged as slander in the complaint, but being merely one of several repetitions, offered as tending to show malice and having relation to the question of exemplary damages, and the trial court having required remission of $1,000 of the $1,600 damages awarded, the error, if any, in admitting such testimony is held not prejudicial.</p> <p>6.An award of $600 damages for repeatedly charging a virtuous and reputable married woman with whoredom is not excessive, especially where the jury might have found express malice and awarded punitory damages.</p> <p>6. In an action against a married woman for charging plaintiff with whoredom, testimony that years of ill health had caused defendant to be very jealous of her husband is admissible, if at all, only as tending to mitigate damages, and not for that purpose unless the fact is properly pleaded.</p> <p>7. Oral charges of unchastity being actionable per se, the presumption arises, without proof, that the person defamed suffered those general damages which are the natural and necessary result of such wrong, i. e. injury to her reputation, and mental pain and humiliation; and such presumption is not overcome by evidence that two of the four hearers disbelieved the charge,— nonbelief of the hearers being merely a fact to be taken into consideration by the jury in awarding damages.</p> <p>8. Where there are numerous repetitions of a defamatory charge, the question of express malice and punitory damages is for the jury.</p> <p>9. The rule that there can be no recovery for mental suffering unless accompanied by other actual damages does not apply to cases based on malice.</p> <p>10. A charge of whoredom against a virtuous and reputable woman necessarily subjects her to anguish of mind and humiliation, and the court may properly so instruct the jury.</p> <p>11. Objectionable remarks in argument to the jury, which were of such a character that they might easily have been remedied had the attention of the trial court been called to them when made, but were not then objected to and are brought into the record only by affidavit upon a motion for a new trial, will not work a reversal.</p> <p>12. Where, in an action to recover damages for charging plaintiff with unchastity, no claim was made, either in the pleadings or proof, that plaintiff was other than the most virtuous, or that defendant had any ground whatever to doubt her chastity, statements of-plaintiff’s counsel in his argument to the jury that a verdict in defendant’s favor would mean virtually that plaintiff was a whore, are held to have been an abuse of the privilege of counsel, but to have been so obviously untrue that the jury could not have been misled thereby.</p>

<p> Consolidation of actions: Justices' courts: Appeal and error: Review of taxation of costs. </p> <p>1. An action appealed from justice’s court and, under sec. 3768, Stats. 1898, triable in the circuit court “as actions originally brought there,” may be consolidated, under sec. 2792, with an action commenced in the circuit court, notwithstanding the provisions of secs. 3766, 3770, in respect to the dismissal of the appeal if not brought to a hearing within the time there specified.</p> <p>2. Where in such a case the consolidated action, was brought to a bearing within the time limited by sec. 3766, the respondent could not be prejudiced by the consolidation.</p> <p>3. The taxation of costs in the trial court is not reviewable by the supreme court where there was no objection or exception to any item thereof.</p>

<p> Appeal and error: Printed ease: Malicious prosecution: Evidence: Cross-examination of party: Objections: Sufficiency: Refusal to reopen case: Discretion: Court and jury. </p> <p>1. Where the most important question raised on a writ of error was whether the court erred in directing a nonsuit, the printed case should contain an abstract of the evidence of all the witnesses whose testimony has a substantial bearing upon the plaintiff’s contentions.</p> <p>3. Where, in an action for malicious prosecution of plaintiff on the charge of disposing of mortgaged property, plaintiff testified that the mortgage debt had been paid, it was proper, on the cross-examination, to allow defendant to bring out the fact that a judgment had been rendered determining that said debt had not been paid, and to admit, as a part of the cross-examination, the record of the action in which such judgment was rendered.</p> <p>3. An objection made to the introduction of a record in evidence, on the ground that the whole of it was not offered, is not available on appeal where, when asked by the trial court what parts of the record had not been offered, appellant specified none, and where the recbrd as offered is not brought before this court in the bill of exceptions.</p> <p>4. Refusal of the trial court to reopen the case for further examination of the plaintiff with reference to a transaction between her and the defendant tending to show malice, on the ground that ample opportunity to obtain the desired information had been already givefi and that the attempt had been fruitless, is held, under the circumstances of this case, to have been a proper exercise of discretion.</p> <p>5. Where the evidence is so uncertain and confused as to render the proper inferences extremely doubtful,, the decision of the trial court is entitled to some weight in determining the correctness of of its ruling in taking the case from the jury.</p>

<p>Contracts: Ambiguity: Parol evidence: Agency: Notice of acts: Ratification: Promissory notes: Bona fide holder.</p> <p>1. Parol evidence is proper to explain the meaning of words used in a writing, which are ambiguous when applied to the subject which gave rise to such paper, as well as when the meaning of the writing is uncertain looking only at the language thereof.</p> <p>2. A person is conclusively presumed to have had notice, actual or constructive, of all the doings of his agent within the actual or apparent scope of the agency, and to be bound thereby.</p> <p>•3. The holder of a promissory note, taken for him of the maker by an agent upon a condition not disclosed to such holder and outside the scope of the agency, cannot repudiate the condition and insist upon holding and enforcing the note. He is bound, if he does not intend to abide by such condition, to restore or offer to restore the note within a reasonable time after discovering the facts.</p> <p>4. The general rule is that if a person, with knowledge of facts which will defeat a promissory note in the hands of the payee, purchases it from a bona fide holder thereof, he may recover thereon upon the strength of such bonafides; but that rule does not apply to a purchaser who is the payee of the note. If he sells such paper to an innocent third person and repurchases it for value, he does not thereby become possessed of any better right as against the maker than he possessed in the first instance.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeal from a judgment of the circuit court for Mar'quette county: E. G. SiebeoeeR, Circuit Judge.</p> <p>The plaintiffs sue to recover the price of a self-binder. The action is based upon a written order dated June 14, 1900, addressed to Hamilton Bros., as the agents of plaintiffs. It is signed by the defendant with his mark and calls for “ one Ideal binder, complete.” The machine was warranted to be well made, of good materials, and, with proper ■care and management, durable and capable of doing good work. The purchaser was to have one day to give it a fair -trial, and if it did not work well written notice was to be given to the agent from whom purchased, or to some general agent of the company, and a reasonable time allowed to repair it. If it failed to work it was to be returned and a new machine taken or the purchase price refunded. Defendant was to pay $105 cash and an old reaper. The com•plaint alleges the machine was delivered about July 1,1900, and has not been paid for. The answer denied ever having signed any contract for the purchase of the binder. It wTas .alleged that plaintiff’s agent came to him in the month of June, 1900, and represented that he desired to sell one of -the latest and most approved of their new machines, and that, if the defendant would take one, if it suited him he .might keep it and pay for it, but if it did not he might return it at any time. Relying on these representations, he was induced to take a binder. The agent produced a paper for defendant to sign, and represented that it was an order for a machine on the terms stated. The defendant is a German and cannot read English. The writing was not read to or explained to him, and he did not understand the contents thereof. Relying upon these representations, he signed the paper, and received a machine. Before he left the village of Westfield, where delivery was made, he discovered that the machine was not a new one; that it was old style, weather-beaten, and not the latest improved machine. He refused to keep the machine, and returned it to plaintiffs’ agents the same day. He offered to take a new machine, but this was refused.</p> <p>A jury trial was had, and a special verdict rendered as follows:</p> <p>“Was it understood and agreed between Mr. Hoeft, the defendant, and Mr. Percy, the plaintiff’s agent, at the time the written contract was signed, that Mr. Hoeft might take the machine and keep it if satisfied with it, and if he was not satisfied with it he could return it at any time and need not pay for it? A. Yes. Q. If your answer to the first question is £ Yes,’ then answer this question: Did Mr. Percy, the plaintiff’s agent, falsely represent to Mr. Hoeft, when the contract was made in writing and read to defendant, that it contained the agreement and stipulation as specified and set out in question No. 1 ? A. Yes. Q. Was Mr. Hoeft, the defendant, induced to sign the written contract offered in evidence and purchase a machine upon the ground that he believed and understood it contained a stipulation as specified and set out in question No. 1 ? A. Yes.”</p> <p>The plaintiffs’ evidence showed that the order mentioned was signed by defendant after it had been correctly read to him, and a copy thereof given to him; that about June 27th the defendant called for the machine, which was loaded in his wagon, and taken away. The machine so delivered was a Deering Ideal of the make of 1899. The defendant’s testimony as to what occurred at the signing of the contract is as follows:</p> <p>“ I can’t read. English. I am the defendant in this case. I signed a paper that day. He told me what the paper was. He said that was a new binder he sold me; a new binder. He said he sell me a new binder what make me satisfied. I take it out if he don’t. I don’t care. I told him if 1 had it on my wagon or on my farm, if I don’t like it I took it back to him. lie said: ‘ All right, bring it any time. If you don’t like it you shan’t take it. I make you satisfied.’ Q. State whether or not that is what he said that writing contained. (Objected to as leading.) * Gourt: He may answer that. Did he say that was in the paper? A. I don’t understand. Q. Did. this man Percy say that was in this paper? A. Yes, sir.”</p> <p>He admitted that the agent read the whole paper to him and gave him a copy. He claimed the machine was delivered to him the Wednesday after the contract was signed; that it was hurriedly loaded into his wagon, and he drove away a few rods, when some of his neighbors called his attention to the machine. He looked it over, and found it was rusty, weather-beaten, and the paint was coming off in places. He drove back to the agent’s warehouse and demanded a new machine, which was refused unless he paid an advanced price. He unloaded and left the machine. The testimony of other witnesses was to the effect that the machine was somewhat rusty and the paint was faded and weather-worn.</p> <p>After the verdict was rendered, plaintiffs moved for judgment. The motion was denied. They then made a motion for a new trial on the ground that the verdict was contrary to. the law and the evidence, and for misdirection of the jury. This motion was also denied, and a motion for judgment for defendant was granted. These orders were duly excepted to. The plaintiffs appealed from the judgment in favor of defendant for costs.</p>

<p> Justices' courts: Replevin: Sheriff a party: Service by coroner: Jurisdiction: Voluntary appearance. </p> <p>1. Under sec. 4972, Stats. 1898 (providing that if the provisions of different chapters conflict those of each chapter shall prevail as to all matters and questions growing out of the subject matter of such chapter), the provision of sec. 3787, in the chapter relating to replevin in justice’s court, that where the sheriff is a parfy the warrant and all process in the cause shall be awarded to and executed by a constable, must prevail over more general provisions in other chapters requiring the coroner to serve process and perform all the duties of sheriff when the latter is a party; and, the provision being mandatory, the justice acquires no jurisdiction in a replevin action from service of process by the coroner.</p> <p>2. Issuance of the warrant to, and execution of it by, the coroner in such a case merely defeats the jurisdiction of the person; and the defect is waived by the voluntary appearance of the defendant.</p>

<p>Municipal corporations: Injury from defective sidewalk: Evidence: Immaterial errors: Experts: Hypothetical questions: Leading questions: Use of sidewalk for play: Presumption as to safe condition: Knowledge of defects: Instructions to jury: Damages: Res judicata: Appeal: Taxation of costs.</p> <p>1. In an action against a city to recover for injuries to plaintiff’s leg near the ankle, alleged to have been caused by a defect in the sidewalk, a witness who had observed the manner in which plaintiff used her foot in walking after recovery, although not an expert, may testify as to what he saw regarding such use.</p> <p>2. In such a case testimony of a witness that he knew at what place in the sidewalk it was claimed plaintiff was injured is immaterial, but its admission, in view of the other evidence, is held not to have been prejudicial.</p> <p>3. Where an objection to evidence is properly made the trial court should decide the question presented according to principles of law as it understands them, and shouldnot admit the evidence because counsel is willing to take his chances of reversal on appeal.</p> <p>4» One of plaintiff’s expert witnesses, who had testified to finding some chronic inflammation in the ankle joint was asked if there was usually a recovery from inflammation in the joint within six years, counsel stating in effect that he was speaking with reference to such a case as the one under discussion. Held, that an objection on the ground that the question did not call for an opinion based on such a case as the one under investigation, was improperly sustained.</p> <p>6.The claim being made by defendant that the accident happened by reason of the plaintiff falling from a fence, one of defendant’s witnesses was asked a direct question as to whether she did not see the accident happen in that way. On a general objection the question was ruled out. Held, that the ruling was proper, the question being leading.</p> <p>6. The refusal to give an instruction requested is not error where it is given in substance in the general charge.</p> <p>7. An instruction to the effect that if a child, while using the sidewalk in going from one place to another, incidentally indulges in some play or pastime, but is not thereby diverted from going straight to her destination, she is a traveler in the eye'of the law, and that if plaintiff was using the walk in going directly from her home to a neighbor’s, as she claims, and at the same time was accompanied by children who were playing, but she did not stop to play with them, or if she was engaged in any pastime incidentally but was not thereby diverted from going straight to her destination, she was a traveler, is held not to have been erroneous, especially where followed by an instruction that “ if, on the other hand, you believe and find that she started from her home to her neighbor’s and was diverted from this purpose and stopped' to play with other children, and she was injured on the sidewalk while engaged in playing, she cannot recover.”</p> <p>8. If a person knows of a dangerous defect in a sidewalk and is injured thereby, it is presumed, in the absence of evidence to the contrary, that he remembered it and was negligent; but the presumption is rebuttable and gives way so readily to explanatory circumstances that any reasonable excuse for the forgetfulness is sufficient to carry the caseto the jury on the question of the plaintiff’s contributory negligence.</p> <p>9. Where the plaintiff in an action to recover for injuries caused by a defective sidewalk knew of the defect, the error in giving instructions applicable to a case where such knowledge was wanting is held not to have been cured by an instruction that if a person knows of a dangerous defect in the sidewalk he must use greater care than if he is ignorant thereof.</p> <p>10. A decision as to the amount of damages recoverable on a given state of facts in a particular case, when once rendered in the supreme court is res judicata and absolutely con trolling in such case, the same as a decision upon any other question.</p> <p>11. No direction as to the taxation of costs having been given when a case was decided, the clerk properly refused to pass upon the questions whether the printed case was made up in compliance with the rules and whether a reply brief was necessary.</p>

<p>Appeal from an order of the circuit court for Dane county: R. G. SiebeceeR, Circuit Judge.</p> <p>The Dane County Bank was a banking corporation doing business at Stoughton, Wisconsin. The bank became insolvent, and at the suit of Sylvanus Ames and others a receiver was appointed to wind up its affairs. The appellant had a claim against the bank, and presented his petition to the court asking for an order requiring the receiver to pay over to him certain funds in his hands. The receiver demurred to the petition on the ground that it did not state facts sufficient to entitle him to relief. The demurrer was sustained, and the petitioner brings this appeal.</p> <p>The facts stated in the petition are as follows: The Dane County Bank was a banking corporation organized, in 1893, and conducted a general banking business at the city of Stoughton until June 10, 1899. Its affairs were under the immediate control of one O. M. Turner, its president, who had the confidence of the people, and the bank did a large business. The petitioner was a farmer, and from time to time had done business with the bank, and believed it was solvent. On the morning of June 9,1899, he had and owned 'a check given by one G. F. Tallard on funds in the Tobacco Exchange Bank of Edgerton, Wisconsin, for $1,281.10. Not desiring to use said money, and having confidence in said Dane County Bank, the petitioner delivered said check to the president of the bank, and received from him $284.10- in cash, and a certificate of deposit for $1,000. At that time the bank was insolvent, and known to be so by Turner. Notwithstanding such insolvency, it received said check, and on the same day transmitted it to the Edgerton bank for payment. On the following day the Dane County Bank closed its doors, and a receiver was appointed. On June 10, 1899, the Tobacco Exchange Bank, by order of the Dane County Bank, transmitted the sum of $281.10 by draft to Marshall & Ilsley’s Bank of Milwaukee, to the credit of the Dane County Bank, being a part of the proceeds of said Tall-arcl check. At the request of petitioner, the Tobacco Exchange Bank held $1,000, the remainder of the proceeds of said check, until Rovember 27, 1899, when it was paid over to the receiver. A demand was made upon the receiver to pay over said sum, which was refused, and he still has said sum under his control.</p> <p>They contended, inter aUa, that a tender of restoration was unnecessary. Such tender is usually made in the prayer for relief, and a demurrer will not reach a defect in the prayer. 6 Ency. of PL & Pr. 408; 3 id. 346; Nelson v. Ferdinand, 111 Mass. 300. In an equitable action, where the court has full power to protect the rights of the parties, a tender does not go to the cause of action. Lwnn v. Amos, 14 Wis. 106; Seeley v. Howard, 13 Wis. 336; O’Dell v. Burnham, 61 Wis. 662; Mankel rb. Belscamvper, 84 Wis. 218; 2 Wait, Pr. 579. The certificate of deposit in this case was in legal effect nothing more than a promissory note, and such a note need not be tendered back in order to rescind or avoid a fraudulent purchase of property. Hyland v. Bohn Mfg. Go. 92 Wis. 157; Friend Bros. O. Go. v. Halbert, 98 Wis. 183; Nichols v. Michael, 23 R. T. 264; Thurston v. Blanchard, 22 Pick. 18; Snow v. Alley, 144 Mass. 546; Duval v. Mowry, 6 R. I. 479; Manning v. Albee, 11 Allen, 520.</p> <p>They argued, among other things, that whether the certificate of deposit was negotiable or nonnegotiable, it was the absolute promise to pay of the bank, and was presumably of value. The failure to set out in the petition a willingness and ability and offer to restore the certificate makes the petition demurrable. 18 Ency. of PL & Pr. 829, 831; Berman v. Qrwy, 19 Wis. 182, 181; Becker v. Tricl&el, 80 Wis. 484; Welsh v. Blacltbu/rn, 92 Wis. 562; Walker v. Pogue, 2 Colo. App. 149; Beeves v. Corning, 51 Fed. Rep. 114, 182; Long v. Johnson, 15 Ind. App. 498; Wainwright v. Weske, 82 Cal. 193; Pu/rdy v. Bullard, 41 Cal. 444; American F. L. <& M. Co. v. Jefferson, 69 Miss. 110; Boss v. Hew England M. 8. Co. 101 Ala. 362; State ex rel. Lewis v. Willia/rns, 39 Kan. 511; Buena Vista F. & V. Co. v. Tuohy, 101 Cal. 243; American F. L. M. Co. v. Sewell, 92 Ala. 163; Herman v. Haffenegger, 54 Cal. 161.</p>

Gr. Siebeckeb, Circuit Judge. Suit on four promissory notes, dated in the spring and summer of 1897, all signed by C. H. Davidson, M. D. Karr, and the defendant, Harry Johnson.

<p>Mandamus: Appeal: Return: Motion to quash: Foreign insurance companies: License: Powers of insurance commissioner.</p> <p>1. A proceeding by mandamus is a civil action, and the awarding of a peremptory writ a final judgment, within the meaning of the appeal statutes.</p> <p>3. A motion to quash the return to an alternative writ of mandamus cannot properly be made. Relator should demur or answer.</p> <p>S. Under secs. 1955e, 1955/, 1968, Stats. 1898 (requiring foreign assessment insurance companies to comply with certain conditions before being admitted to do business in this state, and requiring the commissioner of insurance to investigate their character and standing before admitting them, for the purpose of ascertaining whether such conditions have been complied with), said commissioner is entitled to a reasonable time in which to make the investigation, and to some extent is called upon to exercise discretion in passing upon the application and to pass judgment upon the facts disclosed by the investigation. He should not be compelled by mandamus to issue a license, where, although he had previously refused on insufficient grounds to issue the same, he had notified the applicant of a reconsideration of such action and, at the time of the issuance of the alternative writ, was proceeding to make proper examination into the affairs and condition of the company.</p>

<p>Appeal from a judgment of the circuit court for Dane county: R. G. Siebeokeb, Circuit Judge.</p> <p>Action by the trustee in bankruptcy of the property of the Badger Cycle Company to set aside a deed, given by the bankrupt some. time before the commencement of the bankruptcy proceedings, upon the ground that it was fraudulent as to the creditors and stockholders of the corporation. The court decided as matters of fact as follows:</p> <p>On October 22,. 1897, the day when the deed was given to defendant Louis Anderson, he was, and for some time prior thereto had been a stockholder of the corporation, possessed of five out of the fifty shares of its capital stock, each share being of the par value of $100, and was also a director of the corporation and the foreman of its business. At such time the corporation was indebted to its stockholders in the sum of $1,573, $803 of which was due to Anderson for labor and services; was also indebted to outside •parties in the sum of $5,444.32; and possessed property of the value of from nine to ten thousand dollars, being solvent and in every respect a going corporation. Anderson, upon the advice of his physician, decided to discontinue his work for the corporation, and thereupon requested it to pay him the amount due for his services. It being difficult for the corporation to comply with such request by paying Anderson in money, the parties agreed, without any formal action by the directors as a board or by the stockholders, but upon A their individual consideration and determination, that plaintiff should release his claim against the corporation and transfer to it his five shares of capital stock, and receive therefor the real estate in question, which was of the value of $850 —and was not used in the corporate business, four bicycles of the value of $20 each, and $225 in money, which agreement was fully consummated. All the stockholders and directors had knowledge of and fully acquiesced in the entire transaction, and after it occurred treated it as valid till after the commencement of the proceedings in bankruptcy nearly two years subsequent to the making of the deed. Aside from claims of stockholders of the corporation who acquiesced in the transaction in question, the only claim proved in bankruptcy which existed at the time of such transaction was a small one in favor of one Comstock, which, prior to the commencement of this action, was fully paid. After the making of the deed and before its validity was in any way called in question, Anderson mortgaged the land to defendant John Gilbert to secure the payment of a loan of $200.</p> <p>Upon such facts the court concluded as a matter of law that plaintiff was not entitled to recover, and thereupon rendered judgment in favor of defendants.</p> <p>They contended, inter alia, that under sec. 1775, as amended, the corporation had no power to convey the legal title to the said land, except as prescribed by the statute. This it did not do, hence its action was void. Thompson, Corp. §§ 5060, 5075; Brewster v. Hartley, 99 Am. Dec. 237; Stow v. Wyse, 18 Am. Dec. 99; Henning v. H. S. Ins. Go. 4 Am. Eep. 332; Sanborn v. Fireman's Ins. Go. 77 Am. Dec. 419; Roehwell v. Elkhorn Banh, 13 Wis. 651; Isham v. Bennington I. Go. 19 Yt. 230; Foim-tame v. Carmarthen B. Go. L. R. 5 Eq. 316; Cook, Stock (2d ed.), § 725; Galloway v. Hamilton, 68 Wis. 654.</p>

<p>Eeeoe to review a judgment of the circuit court for Jackson county: James O’Neill, Circuit Judge.</p> <p>Plaintiff in error was convicted of violating sec. 1557, Stats. 1898. The charge against him was that he unlawfully sold, vended, dealt, and trafficked in intoxicating liquor, in that he gave away such liquor to one John Swanson who was at the time thereof a minor. The evidence was to the effect that the accused, Thomas Nelson, was a licensed dealer in intoxicating liquor, and that Swanson, a minor as alleged, drank such liquor obtained of Nelson at his bar; that Swanson entered Nelson's saloon with two adult acquaintances for the purpose of obtaining intoxicating liquor to be there drank; that Nelson and his bartender were behind the bar; that one of Swanson’s associates applied for drinks for all of the persons in the room, including Swanson; that the application was granted, Nelson assisting in dealing out the liquor; that other drinks were thereafter ordered by Swanson’s associates, of which Swanson partook at their invitation, on one occasion Nelson personally handing the drink, which was whisky, to Swanson; that Swanson did not pay for any of the drinks; that he received the liquor which he drank by the favor of his associates.</p> <p>The court instructed the jury that, “if defendant sold and delivered liquor to one of the parties there with Swanson, and. such party treated Swanson, the minor, then this would not make defendant liable for selling or vending. But such acts would render the defendant liable under the other comprehensive words, ‘ in any way deal or traffic in ’ intoxicating liquors, ‘ to or with a minor.’ ” “ If defendant set out this liquor intending to give it to Swanson to drink, and the latter did drink it, you may find this was a dealing or trafficking in liquor to or with this minor, within the meaning of these terms as used in the statute.” Exceptions were duly taken to such instructions.</p> <p>They contended, vnter alia, that where a minor and an adult go together to a liquor saloon, and the adult calls for liquor, and it is furnished to both, and both drink, the sale is to the adult, and the dealer cannot be indicted for selling tó a minor. Woo'd v. State, 45 Ark. 351; Siegel v. People, 106 Ill. 89. Ueither, in such a case, can the seller be charged with giving away liquor to the minor. Kurz v. State, 79 Ind. 488.</p> <p>They cited Page v. State, 84 Ala. 446; State v.. Scoggins, 107 N. C. 959, 10 L. R. A. 513; People v. Neu-mann, 85 Mich. 98; State v. Pest, 111 N. C. 638; Foster v. State, 45 Ark. 361; Topper v. State, 118 Ind. 110.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: E. G. Siebeokee, Circuit Judge.</p> <p>This is an action brought by the plaintiff, as receiver of a mutual hail insurance company, to collect an assessment alleged to be due from the defendant to the company, which was levied by the company prior to the appointment of the plaintiff as receiver.</p> <p>It appeared by the evidence that the United Farmers’ Township Mutual Hail Insurance Company was attempted to be organized as a mutual hail insurance corporation in the year 1898, under secs. 1956-1966, E. S. 18J8, as amended. The supposed articles of incorporation began as follows:</p> <p>“ Know all men by these presents, that we, W. G. Williams, W. McBride, O. F. Paige, J. E. Paige, and Samuel S. Spedden, desiring to form a corporation for the purpose of transacting the business of mutual insurance against loss or damage by hail, and to all kinds of grain, fruits, hops, and legumen, pursuant to section 1956 of the Revised Statutes of the State of Wisconsin for the year 1878, together with all the additions and amendments thereto, do hereby for such purpose associate ourselves together as a body corporate, and do hereby acknowledge and adopt the following declarations and articles.”</p> <p>After this preface follows article 1, which states the name and location of the company; article 2, which states the general nature of the business to be conducted, and article 3, which reads as follows: “ The names and places of residence of the persons associating hereby for the purpose of forming this corporation are as follows.” Then follow the names of the five organizers of the company, the same being the signatures of the said parties, signed at this place in the articles instead of at the end. After these signatures follow eight further articles. Attached to these articles there was a certificate of the alleged incorporators that the same was a true •copy of the original articles, added to which was an affidavit by said incorporators to the truth of the certificate.</p> <p>These supposed articles of incorporation were duly filed with the commissioner of insurance May 9, 1898, and the company thereafter organized and elected officers, and proceeded to the transaction of business in a number of counties in this state. It issued a large number of policies insuring crops against damage by hail, amounting in the aggregate to ¿1,088,879. During the season of 1898 there were a large number of hail losses, and claims were filed with the company for about $134,000, which the evidence tended to show were adjusted at the sum of $23,206.16. At a meeting of the directors of the company held September 15, 1898, an assessment of five per cent, was assessed against all of the policy holders for the payment of the losses so adjusted, as well as certain unpaid expenses of the company in transacting business, which, it is claimed, amounted to $14,316.01. Subsequently, upon examination of the books and accounts ■of the company, and upon recommendation of the commissioner of insurance, on the 10th of October, 1898, this assessment was reduced from five per cent, to four per cent., which, if paid in full, would produce the sum of $43,500. It appears that the salaries of the officers of the company had not been fixed prior to the first assessment, and that on the 24th of September, 1898, the salaries of the officers were fixed as follows: President, $2,500; secretary, $1,500; general agent, not exceeding $600; assistant treasurer, $600; and attorney, ■$200.</p> <p>The testimony further shows that June 9, 1898, the do fendant made application for insurance of certain crops, and paid the membership fee, and received a policy insuring his •crops in the sum of $1,000, and retained such policy until Uovember, 1898, after the crops were harvested; that he ■sustained no loss; and that he received timely notice of the assessment and of its reduction. It was admitted that he never paid the assessment. The company being insolvent, the plaintiff was, upon due proceedings had, appointed re■ceiver on the 23d day of May, 1899, and was authorized to ■collect, sue for, and recover as such receiver all debts and demands, including all assessments that might be due the ■company. The plaintiff duly qualified as receiver, and is still acting. Uo money was turned over to the receiver from ■the company, and he had no way of adjusting claims except to collect the assessments levied by the company, and remaining unpaid.</p> <p>A nonsuit was granted by the court at the close of the plaintiff’s case, and from judgment of dismissal the plaintiff ■appeals.</p> <p>They argued, among other things, that ch. 329, Laws of 1895, is an independent act passed for the purpose of authorizing the formation of mutual insurance companies to transact a general hail, tornado, cyclone, and hurricane business. It did not therefore repeal the former act by implication. Vorous v. Phenix Ins. Oo. 102 Wis. 76; OolonbiesJci v. State, 101 Wis. 333; Bentley v. Adams, 92 Wis. 386; Gilhey v. Oooh, 60. Wis. 133; Bernhardt v. Rice, 98 Wis. 578; State ex rel. Ennis v. Janesvüle, 90 Wis. 157, 159; 23 Am. & Eng. Ency. of Law (1st ed.), 486;-Wood v. TJ. S. 16 Pet. 363; Chicago, M. <& St. P R. Co. v. V. S. 127 U. S. 406; Frost v. Wenie, 157 U. S. 46, 58; U. S. v. Healey, 160 U. S. 146; U. S. v. Greathouse, 166 U. S. 605; Ait'y Gen. ex rel. Taylor v. Brown, 1 Wis. 514; Atty Gen. v. R. R. Cos. 35 Wis. 425; Dane Co. v. Revndahl, 104 Wis. 302, 305.</p> <p>They contended, inter alia, that the law of 1895 by implication repealed the former law, because it revised the whole subject matter. 23 Am. & Eng. Ency. of Law, 487; State v. Campbell, 44 Wis. 529; Dane Co. v. Reindahl, 104 Wis. 302; State ex rel. Ermis v. Janesville, 90 Wis. 157; Bivrlander v. M. & St. P. R. Co. 26 Wis. 76; Schneider v. Staples, 66 Wis. 167; Moore v. S. & St. C. R. Co. 34 Wis. 173; Oleson v. G. B. o& L. P. R. Co. 36 Wis. 385; Curry v. C. c& N. W. R. Co. 43 Wis. 665. The fact that the law of 1895 includes the terms tornadoes, cyclones, or hurricanes is immaterial. An insurance company could be formed under ch. 329, for the purpose of mutual insurance against loss or damage by hail alone. If that is so, and secs. 1956 et seg. were in force, hail insurance companies organized for the same purpose could be organized under two entirely inconsistent methods. The legislature having used the disjunctive or, the court must construe the statute, with reference thereto. Williams v. Citizens' E. Co. 25 Ind. App. 351. In mutual companies it is impossible to make a valid assessment that does not take into consideration the number of policy holders at the time each loss occurs. Davis v. Parcher da J. dá A. S. Go. 82 Wis. 499; May, Insurance, § 559; Beach, Insurance, § 114; 32 L. E. A. 488, note; Bowen v. Kuehn, 79 Wis. 53; Great W. T. Go. v. Burnham, 79 Wis. 47; Detroit M. M. F. Ins. Go. v. Merrill, 101 Mich. 393.</p>

<p>Ebeoe to review a judgment of the circuit court for Dane county: R. G-. Siebeoxer, Circuit Judge.</p> <p>This action was commenced in the municipal court of Dane county on a complaint charging the plaintiff in error with having been guilty of “ keeping and maintaining a disorderly house and house of ill-fame,” contrary to the provisions of sec. 4, ch. 7, of the ordinances of the city of Madison. A warrant for his arrest was issued, and he was arrested and taken before the court. A plea of not guilty was entered, and a trial was had before the court without a jury. He was found guilty, and was adjudged to pay a fine of $100 ■and costs, or, in default of the payment of such fine and costs, that he be committed to the county jail of Dane county at hard labor until said fine and costs were paid,— not, however, to exceed ninety days. An appeal was taken to the circuit court, where a trial was had before a jury, and a verdict of guilty rendered. A similar fine, with costs, was imposed, with imprisonment in the county jail not exceeding three months in case of nonpayment. The accused brings the case to this court by writ of error.</p> <p>to the point that plaintiff in error could not be convicted of this offense by the court alone without a jury, cited secs. 3294, 3303, Stats. 1898; State v. Loolt/wood, 43 Wis. 403; In re Staff, 63 Wis. 285; Sutton v. MoGonnell, 46 Wis. 269; JBoscobel v. Bugbee, 41 Wis. 59 \ Oshkosh v. Solmcvrtz, 55 Wis. 483; State <o. (drove, 17 Wis. 448; Milwaukee v. Simons, 93 Wis. 5Y6; Milwaukee v. Weiss, 93 Wis. 654; State v. Hwyden, 32 Wis. 663; 1 Dillon, Mun. Corp. (4th ed.), §§ 432,. 434, 439; State v. Moss, 2 Jones, Law, 66; Rector v. State, 6 Ark. 187; Slaughter v. People, 2 Doug. (Mich.), 334; Welch v. Stowell, 2 Doug. (Midi.), 332; Burns v. La Grange, 17 Tex. 415; Warren v. People, 3 Parker, Or. 544; Zylstra v. Charleston, 1 Bay, 382; Barter v. Comm. 3 Pa. 253; Byers v. Comm. 42 Pa. St. 89; Callan v. Wilson, 127 U. S. 540; Dxvrkee v. Janes-ville, 28 Wis. 464.</p> <p>argued, among other things, that an offense against a city ordinance, even though the acts complained of also Constitute a crime, misdemeanor, or common-law or indictable offense, may be disposed of in the first instance summarily without a jury. State ex rel. Milwaukee v. Newman, 96 Wis. 258, 266; Platteville v. McEernan, 54 Wis. 487; Platte-ville v. Bell, 43 Wis. 488; Anderson, Law Diet. “Quasi-OeiMbs;” Wiggins v. Chicago, 68 Ill. 372, 3.75; State v. Lee, 29 Minn. 445, and cases cited; McGearv. Woodruff, 33 N. J. Law, 213; Jones v. Bobbins, 8 Gray, 329; 24 Am. & Eng. Ency. of Law, 500, 504; Cooley, Const. Lim. (6th ed.), 389, note 2 and cases cited; 1 Dillon, Mun. Corp. (4th ed.), §§ 432-439; Bishop, Statutory Crimes, § 23; 1 Bishop, Criminal Procedure, §892; Pomeroy, Const. Law, § 246; Mayor of Mobile v. Allaire, 14 Ala. 400; Mayor of Mobile v. Rouse, 8 Ala. 515; McLnerney v. Denver, 17 Colo. 302; Williams v. Augusta, 4 Ga. 509; Floyd v. Fatonton, 14 Ga. 354; Hill v. Dalton, 72 Ga. 319; Davenport v. Bird, 34 Iowa, 524; Waldo ■v. Wallace, 12 Ind. 569, 584; Amboy v. Sleeper, 31 Ill. 499; Robbins v. People, 95 Ill. 175; Mayor of Monroe v. Meuer, 38 La. Ann. 1192; Emporia v. Volmer, 12 Kan. 622; State •ex rel. Curtis v. Topeka, 36 Kan. 76; Williamson v. Comm. 4 B. Mon. 146; Kansas City v. Clark, 68 Mo. 588; St. Louis v. Cofferata, 24 Mo. 96; Johnson v. State, 59 Miss. 543; State v. Glenn, 54 Md. 572; Shafer v. Mumma, 17 Md. 331; Howe v. Plainfield, 37 N. J. Law, 145; Riley v. Trenton, 51 N. J. Law, 498; Liberma/n v. State, 26 Neb. 464; Brownville v. Cooh, 4 Neb. 101; Polinslty v. People, 11 Hun, 390; Rogers v. Joi\es, 1 Wend. 238; Wong v. Astoria, 13 Oreg. 538; In-wood v. State, 42 Ohio St. 186; Byers v. Comm. 42 Pa. St. 89; Greenville v. Kemmis, 4 Mun. Corp. Cas. 523; Anderson v. O’Donnell, 29 S. C. 355; Eta parte Schmidt, 24 S. C. 363; Trigally v. Memphis, 6 Coldw. 382; Thomas v. Comm. 22 G-rat. 912; State v. Conlin, 27 Yt. 318.</p>

<p> Constitutional law: Police power: Infringement of individual liberty: Bight to practice medicine: Beasonableness of classification: Who may question constitutionality of law. </p> <p>1. Some classes oí citizens may by law enjoy greater privileges than others or be subjected to different burdens or restrictions, provided the classification be not arbitrary and for the purpose of discrimination only, but be made upon grounds and in recognition of conditions or characteristics which are germane to a legitimate object of police regulation. Thus, in the exercise of the police power, the legislature may by law exclude unfit' and incompetent persons from the practice of medicine in this state.</p> <p>U. The sufficiency of the reasons for a classification of persons in respect to privileges or restrictions is for the legislature, not for the courts; and only in a case clear beyond a reasonable doubt will the courts declare a statute invalid on the ground that its purpose or the classifications it makes are without reason to support them.</p> <p>■3. Ch. 306, Laws of 1901, requires all persons commencing the practice of medicine or surgery in this state to submit to an examination by the board of medical examiners, and to present a diploma from a reputable medical college which requires certain specified courses before graduation, and to pay certain fees for the examination and certificate, but provides that any student who, at the date of the enactment, was matriculated in any medical college of this state which requires certain courses of study, shall, on presentation of his diploma from such college and payment of the fees, be admitted to practice without further examination. Held, that the act is not in violation of sec. 2, art. IV, Const, of XT. S. (which • provides that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states), nor of the XIVth amendment, Const, of IT. S. (which prohibits any state • from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, and provides that no state shall “ deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws ”),‘nor of sec. 1, art. I, Const, of Wis. (which declares that “all men are born equally free and independent, and have córtain inherent rights; among which are life, liberty and the pursuit of happiness ”).</p> <p>4. Where a relator is seeking to compel the issuance to him of a license , to practice medicine under a law of this state, he cannot be bear’d to assail the validity of a provision of that law on the ground that it is unconstitutional.</p> <p>6. Statutes will not be declared unconstitutional at the suit of one who is not a sufferer from their unconstitutional provisions.</p>

<p>Appeal from a judgment of the, circuit court for Marquette county: LaweeNoe W. Halsey, Judge.</p> <p>This is an action to recover damages for personal injuries sustained by the plaintiff December 17, 1900, while in the employ of the defendant in its granite quarry, by reason of the unexpected explosion of a powder blast beneath a rock on which he was at work at the time. Issue being joined and trial had, the court, at the close of the testimony on the part of the plaintiff, granted a nonsuit, and from the judgment entered thereon the plaintiff appeals.</p> <p>The plaintiff testified to the following effect: He was thirty-six years of age. He had worked for the defendant three years, most of the time drilling holes in the rock with steam or air drills. He was so at work Friday, December 14, 1900, when Pender, the defendant’s foreman, told him to bar some stone loose, and put chains on them, and get them ready for the derrick. Two other workmen (0. and G.) were working on another stone glutting it,— raising it up from the bottom, and driving it off from the main body of the rook. Gluts are made of iron or steel, and of different sizes,— from one to two inches in diameter; and they run toa point,— wedge shaped. To glut stone out, the men drill the stone out and crack it. Then Pender had 0. and G. put gluts in and glut it out; one to glut from the top, and the other from the bottom. They had glutted from the bottom, and raised the stone an inch and a half. The stone was eight or nine feet long, five or six feet across, and six or seven feet thick. The seam was eight or nine feet long, six or seven feet deep, and half an inch wide. Late in the afternoon of Friday, Pender stopped O. and G. from glutting, and told them that they could not get the stone out in that way; that he would get it out for them. Pender went after the powder, and sent plaintiff for a lump of clay. When they returned, Pender went to pouring the powder from a tin can, holding about a pint, into the seam or crack, and continued until he had emptied four cans into it, and then told plaintiff to get the kerosene, that the powder was running away. Plaintiff got the kerosene, and Pender took the can and poured it into the crack. He then poured another can pf powder into the crack, and some more kerosene, and followed it by two more cans of powder. Then it filled clear to the top with powder, and Pender then put in his fuse, and sent plaintiff for dirt. Plaintiff brought -a shovel of moist sand, and Pender put it on the top of the powder. Pender then packed the dirt with his hands all along the top of the crack, and told C. and G. to get some wood to put on top, and told plaintiff to take the tools away from tbe front of the blast. After those things were done as so' directed, Pender ordered the men out of the hole, and then Pender gave the signal to blow the horn, to let people know there was going to be a blast. The crack into which the powder was so put extended from the top to the bottom of the rock, and was one half inch wide clear down to the bottom. When the signal was so given, C. and G. and Pen-der and plaintiff came down to the corner twelve or thirteen rods away from the blast. When the blast exploded, plaintiff was looking down the street, paying no attention, and did not hear the report. Pender first called out “ All over! ” which meant that the blast had gone off. When they returned to the hole, Pender told plaintiff to bar and chain stone again, and told C. and G. that they would “ have to cut that stone again,” and with his chalk and line Pender marked where they were to cut the stone. The two ends of the stone were free, and * the side against the rock was separated from it about half an inch. That was the width of the crack. C. and G. drilled across the stone from the seam to the front of the stone, and while they were doing that plaintiff continued getting out stone with a crowbar, and chaining them, until the bell rang and they all quit for the night. The next morning (Saturday) Pender said, “We won’t work to-day; it looks like a bad day; ” and so plaintiff went home, and did not return until Monday morning, December 1Y, 1900. Pender then said that C. was not coming out that morning, and that plaintiff should help drill that line which Pender had marked on Friday. Plaintiff then went to work on that line and on the stone they had been glutting out: The holes were drilled about two inches deep, and three or four inches apart. The wedges were put in and the stone broken by G. The stone was drilled from the free end. The piece drilled off was four feet long. After the stone was broken, Pender told plaintiff to take the strike hammer and go and drive the gluts where C. had been drilling on Friday. The powder had been poured in right near those gluts,— poured down from the top of the stone. Plaintiff took the strike hammer, and went there to ■drive on the gluts, while G. was driving on the side. While ■so driving the explosion went off and made plaintiff totally blind. Plaintiff then heard Pender say, “ Oh, God! I supposed that the rain soaked the powder out.’,’ When the blast so went off Pender was about four feet away from plaintiff. The explosion was loud. The powder came right from the top where plaintiff was driving the gluts. G. and he were ■striking at about the same time; he on the top, and G. on the side. After the explosion G. led him away to the doctor’s office, and it was about seven weeks before he could ■see, and during the time he suffered a great deal of pain. He was hired by Pender, and received $l.Yo per day. Pender ■ordered the men about in the quarry. No one else had anything to do ordering the men in the quarry. Pender ■attended to the placing of the blasts and putting in the powder at all times. Plaintiff never handled the powder, and did not know1 anything about placing blasts. He did not know anything about there being powder in there when the blast went off the second time. Pender did not do any glutting; and did no glutting on this rock.</p> <p>On cross-examination the plaintiff testified in effect as follows: He had been employed by the. former owners of this same quarrjq and had so worked for them eleven or twelve years, and had been working in this quarry altogether for about fourteen years. During that time he had been doing general work, covering everything, except handling powder — blasting. Pender was the foreman under such former owners. They had used seam blasting in the quarry ever since plaintiff first started to work there, and Pender handled the powder during all that time. It was usual for Pender to have somebody get sand, dirt, powder, and oil for him. He would call for it. This rock was drilled first and cracked. It very often happened that a rock was drilled and cracked, and then a seam blast put in to blow it out. That had been done on rock on which he was drilling. Whatever Pender called for, plaintiff would get. He never knew of an occasion before when a blast failed to move the rock. This was the first time he ever saw that occur. At the time of the explosion Pender was giving orders. Just before, he was doing- nothing. Plaintiff’s work on Friday was ten or twelve feet from the rock. On Monday he examined the rock to see the position of the gluts, and he was sure they were not put in after the blast on Friday, but were put in before the first blast, and remained there. He saw them after the first blast, but did not examine the seam to see whether it was wider before than after that blast. It seemed to be about half an inch wide, as before. He did not use the steam drill Monday morning because Pender ordered him to use the hand hammer. He had attempted to glut off rocks as large as that before. It looked to him as though the bottom of the rock was flat,— but he could not see under it, and did not look. He had seen Pender pour kerosene oil into a seam blast before, but did not know how 'many times. He did not know whether it was a usual blast in. comparison with blasts he had seen Pender put in before, nor whether the powder was larger or smaller grain. The powder was black fine powder. There was blasting in the quarry two, three, or four times a week; sometimes two, three, or four times a day. He saw smoke at such times, but paid no attention to it. From what he saw and what occurred on Friday, he thought the powder had all exploded, and it did not occur to him that there might be some powder unexploded. He supposed the blast had gone off, from the smoke.</p> <p>Such is a general outline of the circumstances under which the plaintiff was injured, as detáiled by himself. Some of his testimony was corroborated by three other workmen in the same quarry. There were also two expert witnesses on the part of the plaintiff whose testimony tended to prove that the seam blast, as prepared or charged by Pender on Friday, was improper; that the usual and customary way, and in fact the only proper way, is first to make a base for the powder by pouring sand into the crack or seam so as to confine the powder to certain limits, and then put in the powder, so that the explosion will ignite all the powder; but that, in case the explosion is only partial, then more sand should be poured into the seam, so as to cover up the powder in there and make a new base for the second charge of powder to be exploded, and that it is dangerous to drill or glut the rock until after all the powder which had been put in had been exploded; that the soaking of powder by a common rain will not entirely destroy the explosive effect of powder, as it is glazed over with graphite so as to resist the water, although the water would in time destroy such effect.</p>

<p>Error to review a judgment of the circuit court for Eond du Lac county: Michael KirwaN, Circuit Judge.</p> <p>The plaintiff in error was tried in the circuit court for Fond du Lac county on an information charging him and one Prof. Shorty, alias John Morris, with the' murder of one William Prinslow, a police officer of the city of Fond du Lac. He was convicted of murder in the first degree, and brings his writ of error to reverse the judgment pronounced on such conviction.</p> <p>It appeared by the evidence that on the evening of November 18,1898, at about 6:30 o’clock, or within a few minutes thereafter, an assault was made upon one George Seitz, a liveryman at Fond du Lac, and an attempt made to rob him, by three unknown persons. The assault took place upon the sidewalk of a street called Forest avenue, in said city, in front of the livery barn belonging to Seitz, which is located on Forest avenue, just west of the east branch' of the Fond du Lac river. The attempted robbery failed, and the three men ran across the bridge over the river easterly on Forest avenue, and then turned south past the depot of the Chicago, Milwaukee & St. Paul Eailroad, and when they were a little south of First street (the first street south of Forest avenue running east and west) they were met by Officer Prinslow, who was coming from the south, and three shots were fired by one or more of the escaping criminals, inflicting vital injuries upon Prinslow, causing his death. No one saw the three assailants of Seitz so that they could positively identify them. The evening was dark and somewhat stormy. After the shooting of the officer by the men they were not identified again by anybody and were not pursued. The Chicago & Northwestern Eailway tracks run north and south through the city of Fond du Lac, the main depot of the company being located a little over two blocks from the place of.the assault, and a little south thereof: The Chicago & Northwestern line runs almost due north and south, and the Chicago, Milwaukee & St. Paul line, after leaving its depot, runs southwest, and crosses the Northwestern line, forming a junction at a point about one half mile south of the Northwestern depot, where there is a tower house and a man located in charge thereof. Six hunr dred or eight hundred feet south of this tower house are the coal sheds of the Northwestern company, and about two and one half miles south from the tower house is a bridge, which carries a wagon road over the Northwestern track at the summit of a grade which commences about at the coal sheds. The plaintiff in error and the other defendant, Prof. Shorty, alias John Morris, were seen around town in Fond du Lac on the day of the murder, and had been seen together during that day in the vicinity of a place called Five Points, four or five blocks south of the place of assault, and a short distance north of the tower house and the coal sheds. Both of the defendants had been drinking during the day, and had been seen somewhat intoxicated, and had been around the coal sheds aforesaid at different times during the day. A long freight train upon the Northwestern tracks passed south that evening. ■ The train was what is known as a double header, and according to the depot records it left the main depot of the Northwestern Bail way at 6:25 p. m., passed the tower house and junction aforesaid one half mile south of the main depot at 6:30 p. m., and proceeded south without, stopping. When this train had proceeded south to a point about two thirds of the way up the grade between the coal sheds and the bridge aforesaid, a brakeman upon the train discovered the plaintiff in error, Lonergan, lying down upon the roof of one of the freight cars near the head of the train, and appearing to be intoxicated, and the brakeman testified that it was about 6:45 p. m. when he made the discovery. Nothing was then known by the brakeman or any of the train employees of the fact of the commission of the murder.</p> <p>It does not appear when or where the plaintiff in error left the train, but he was arrested January 1,1899, and taken to Fond du Lac, and bound pver for trial. When arrested he stated that he left Fond du Lac at 4:15 p. m. on the day in question. While in jail it was found that he had secreted in his coat,, between the lining and the outside thereof, an account of the shooting of Officer Prinslow as it appeared in the Milwaukee Sentinel on the day after the shooting occurred. This article he tore up when it was found. It also appears that an attempt to break jail was made during his confinement, in which the plaintiff in error appears to have assisted in some degree.</p> <p>The jury acquitted the defendant Morris, but found the plaintiff in error guilty. A motion was made to set aside the verdict and for a new trial for the reason, among others, that the verdict was against the evidence and that substantial justice had not been done. This motion was denied, and* the plaintiff in error was sentenced to imprisonment for life.</p>

<p>Appeal from a judgment of the circuit court for Outaga-mie county: Jora GoodlaND, Circuit Judge.</p> <p>In December, 1897, there was pending in the circuit court for Winnebago county an action in which G. D. Ingersoll was plaintiff and the Ingersoll Land & Lumber Company was defendant. The defendant desired to appeal to this court, and gave ah undertaking signed by the defendants in this action to pay the costs on that appeal and any final judgment 'obtained therein, not exceeding $1,000. Judgment was finally entered in said action in favor of plaintiff, and this action is brought on that undertaking, claiming an indebtedness of $326.65. The defendant Seatoft answered, setting up certain matters in abatement and by way of defense. He also set up several matters by way of counterclaim, to which reply was made. The case was tried by the court without a jury, and findings were made for the plaintiff. The defendant filed exceptions to each finding of fact except to the tenth.. Such exceptions were to the whole of each finding, and were based on the ground that the same was “ contrary to the law, and not supported by the evidence.” The tenth finding was not excepted to, but the record shows two exceptions to the ninth finding. Judgment was entered for the plaintiff, from which the defendant Seatoft has taken this appeal.</p>

Action of ejectment for three small parcels of land. It appeared that plaintiffs were the owners of the W. ^ of the S. E. of section 28, except a strip' in the northwest corner thereof fourteen rods long east and west, by two rods wide ■north and south. Defendant was the owner of the land north of the plaintiffs’, including said fourteen-rod strip.

<p> Ejectment: Counterclaim: Matters of defense. </p> <p>In an action of ejectment neither the running of the statute of limitations nor facts constituting an estoppel in pais can properly be pleaded as a counterclaim, under sec. 3078, Stats. 1898, each being available as a legal defense.</p>

This is a taxpayer’s action in equity to set aside an alleged illegal contract made by the defendant town and to enjoin the collection of taxes to meet said contract.

<p>Appeal from an order of the circuit court for Outagamie county: John Goodland, Circuit Judge.</p>

Action for damages for the wrongful cutting and removing of timber, from certain lands and the conversion of such timber to the use of the wrongdoer.

Action to recover damages by reason of injuries to plaintiff’s wife, team, and vehicle, claimed to have been caused by a defective highway.

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

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

J. Yinje, Circuit Judge. This is an appeal by the executor above named from a judgment of the circuit court for Douglas county affirming the judgment of the county court of said county, which denied the executor’s petition to vacate an order of the county court dated August 7, 1893, requiring the executor to pay the claim of the respondent out of the assets of the estate of E. Y. Mundy on or before October 7, 1893.

On December 14, 1880, the St. Paul & Duluth Railroad Company, by a writing duly executed so as to pass title but not so as to entitle the same to be recorded under the laws of the state of Minnesota, in consideration of $8,046.16 in its preferred stock, conveyed to one Miller the right to cut and remove from certain land owned by said company, located in the state of Minnesota, the pine timber growing thereon, and to become the owner thereof as fast as severed from the land,…

J. Yinje, Circuit Judge. This was an action asserting full equitable title from the government to the plaintiff, and seeking to charge a trust upon the defendant, who had received the patent. The complaint is very long, but may be abbreviated as follows: On February 23, 1891, certain lands in the county of Bayfield were opened to entry.

J. Yinje, Circuit Judge. Ejectment. The plaintiff alleged in bis complaint that be was the owner in fee simple of certain described premises, and that the defendants unlawfully withheld possession.

<p>Evidence: Laws of another state: Publication “ by authority.”</p> <p>A publication entitled “ Statutes of Minnesota, 1894,” stating, on the title page, that it contains the statutes of that state in force De- • cember 81, 1894, compiled by W. and others, and containing, on the opposite page, an act of the Minnesota legislature entitled “ an act relating to the compilation of the general laws of Minnesota, by W. and others,” designating such compilation as the general laws in force at the time mentioned, and declaring it to be competent evidence of the acts, etc., therein contained in all courts of that state, — purports to be published under the authority of Minnesota, within the meaning of sec. 4136, Stats. 1898, and is therefore presumptive evidence as to the laws of Minnesota in the courts-of this state.</p>

Appeals from an order of the circuit court for Douglas county: A. J. YiNje, Circuit Judge.

Action for deceit. The substance of the complaint is as follows: August 20, 1900, defendant, for the purpose of inducing plaintiff to take space for a millinery department in a store to be established by him in the city of Superior, Wisconsin, and to incur the necessary expense for a first-class stock of .millinery goods and the establishment and operation of such a department, falsely represented to her that he had purchased for said store a stock of goods of the* finest…

This action was brought to recover damages to two lots owned by the plaintiffs, abutting on North Twenty-First street, in the city of Superior, resulting from the unauthorized change of grade of the street. The grade of the street was established in August, 1889, and in 1892 it was improved and paved at the expense of the landowners. It appears that the Eastern Railway Company of Minnesota had tracks crossing this street not far distant from plaintiffs’ lots.

J. Yinje, Circuit Judge. Between December 29,1899, and March 7,1900, the plaintiff furnished to the defendant Barnhart machinery consisting of boiler, engine, sawmill machinery, etc., to be wrought into a sawmill to be built by said Barnhart upon certain real estate held by him under land contract from the defendant Matthes, amounting in all to $470.03. Of this. $434.40 were delivered on December 29th, the remainder on and subsequent to January 17, 1900.

<p> Counties; Appeal from disallowance of claim; Bond. </p> <p>An instrument in writing, under seal and witnessed, reciting that the principal obligor has appealed to the circuit court from the dis-allowance of his claim against a county by the county board, and stating that the obligors, as principal and surety, “ do hereby undertake that the said appellant will faithfully prosecute said appeal ' and pay all costs that shall be adjudged against the appellant,” was approved by the county clerk. Held, that although the instrument was not technically a bond and did not in form run to the county, it was a substantial compliance with sec. 683, Stats. 1898 (requiring the appellant in such a case to execute “ a bond to such county, with sufficient surety, conditioned for the prosecution of such appeal and the payment of all costs that shall be adjudged against the appellant ”), and was therefore sufficient to confer upon the circuit court jurisdiction of the appeal.</p>

J. YiNje, Circuit Judge. This was an action of mandamus, brought against the city treasurer of the city of Superior for the purpose of compelling him to set aside out of the taxes to be collected by him for the year 1900 certain amounts for school purposes.

Action to recover possession of personal property. Plaintiff, being the owner of a stock of merchandise and store fixtures located in a grocery store kept by her, mortgaged the same to Gertie Stern and the mortgage was duly filed. The mortgage contained the usual provision empowering the mortgagee to take possession of the property if at any time she deemed herself insecure.

J. Yxnje, Circuit Judge. Action of replevin. Defendant pleaded a former recovery for the alleged wrong. The following facts were established by the evidence: December 26,1900, plaintiff was'the owner and in possession of a horse and other personal property sought to be recovered in this action, and also a stock of merchandise and store fixtures located in a grocery store kept by her.

J. Yinje, Circuit Judge. The plaintiff brought this action to recover for personal services, alleging that between September 1, 1899, and January 1, 1900, he performed work, labor, and services for the defendant, at its special instance and request, for a period of eighty-one ánd one-half days, at the agreed wages of $2 per day.

J. Yinje, Circuit Judge. In the 1899 tax roll of the town of Superior was included, in separate column, a tax for the payment of judgments to the amount of $12,973.72, inclusive of a judgment in favor of the relator for $2,162.46, of which transcript had been duly filed with the town. clerk. The county taxes in the same tax roll amounted to $7,896.02.

Akpeal from a judgment of tbe circuit court for Green county: B. E. Dunwiddie, Circuit Judge. To the point that adoption does not, like the subsequent • birth of a child, revoke the former will of the person adopting, they cited Davis v. Fogle, 124 Ind. 41; In re Gregory’s Estate, 15 Mise. (N. Y.), 407, 13 Miso. (N. Y.), 3G3; In re Gomassi’s Estate, 107 Cal. 1.

Abbeal from a judgment of the circuit court for Bock ■county: B. E. Dunwiddie, Circuit Judge. This is an action of replevin to recover a large quantity •of farm machinery, horses, and cattle. Trial by jury was waived, and the action was tried by the court. The plaintiff ■claimed ownership’ of the property by virtue of a. chattel mortgage executed by the defendants May 6, 1898.

<p> Malicious prosecution: Termination of m'ongful action: Pleading: Interference with person or property essential: Partnership: Damages. </p> <p>1. A right of action for malicious prosecution will not accrue to a person till the wrongful action against him shall have proceeded to a final determination in his favor.'</p> <p>2. If a complaint, in an action to recover damages for a malicious prosecution, does not state that the wrongful action has been terminated in favor of the plaintiff, it will be open to demurrer for insufficiency.</p> <p>8. It is not essential to the maintenance of an action for damages for a malicious prosecution that all the proceedings in such prosecu- , tion, proper to be had therein, took place before such action was commenced; it is sufficient if, before the commencement of such action, the issues material to the bona fides of the alleged malicious prosecution were decided and closed in favor of the defendant therein by a final judgment.</p> <p>4 A judgment in an action which is subject to appeal to a higher tribunal than the one in which it was rendered, is nevertheless final for the purpose of an action to recover damages for the malicious prosecution thereof.</p> <p>6. It is not necessary to allege in a complaint, in an action to recover damages for malicious prosecution, that judgment has been rendered in the wrongful action in favor of the defendant therein and that such judgment has not been appealed from or reversed; it is sufficient to allege that judgment has been rendered in the wrongful action in favor of .the defendant therein. Subsequent proceedings in such action, impairing the effect of such judgment as a foundation for an action for malicious prosecution, if not disclosed by the complaint, can only be taken advantage of by the defendant as defensive matter.</p> <p>,6. The general rule which prevails in England, and has the greater support of judicial and elementary authority in this country, is that a civil action, maliciously prosecuted, where neither the person nor the property of the defendant is interfered with inflicting special damages to him, will not sustain an action for malicious prosecution.</p> <p>7. An action to wind up a partnership on the ground of misconduct of the defendant partner, and the deprivation of such defendant, in such action, of his right to the possession and enjoyment of the partnership property, is not a civil action interfering with neither the person nor property of the defendant, within the general rule above stated. On the contrary, it belongs to that class of actions that will sustain an action for malicious prosecution because of the injury to the good name and fame of the defendant therein to an extent not remediable by a mere vindication of him upon the trial and a judgment for costs; moreover, it interferes with his property to all intents and purposes the same as an attachment thereof would, and in such a way that damages, other than those incident to an ordinary civil action maliciously prosecuted, are presumed.</p> <p>8. In an action for damages for a wrongful interference with personal or property rights, a specific allegation as to damages, specifying the amount thereof, is not essential to the plaintiff’s cause of action to recover such damages as are necessarily inferable from the facts alleged.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p> Municipal corporations: Personal injuries: Qualifications of jurors: Taxpayers: Estoppel: Expert testimony: Hypothetical questions: Objections should be specific: Amendment of special charter: Ordinance adopting part of general charter: Judicial notice: Claims: Disallowance: Appeal: Pleading: Premature notice of trial:, Waiver: Undertaking: Damages, </p> <p>1. In an action against a city for personal injuries, the plaintiff may ask jurymen whether the fact that as taxpayers they would be called upon to pay a part of any judgment recovered by plaintiff would influence their verdict.</p> <p>2. Signifying satisfaction with the jury as constituted estops a party from questioning on appeal the correctness of a ruling of the trial court overruling his challenge of a juror.</p> <p>3. An objection to an hypothetical question should, upon request, be made specific and the exact nature of the defect in the question pointed out, in order to give to the court an opportunity to pass upon the precise question involved and to the opposing counsel an opportunity to removevthe objection or supply the defect by other testimony.</p> <p>4 In an action for personal injuries a physician who had attended the plaintiff professionally after the accident, and had testified to her condition and to the objective symptoms observable, is held to have been properly allowed to state his opinion as to the cause of her present condition, based upon what he saw of her condition and upon the facts that he had testified to.</p> <p>5. Subd. 9, sec. 31, art. IV, Const., prohibits the legislature from amending the charters of cities, and seo. 32 provides for the adoption of general laws for that purpose. Secs. 925-1 to 925-269, Stats. 1898, embody a general charter law, and sec. 926 provides that any city . operating under a special charter may by ordinance adopt any chapter, section, or subdivision of such general charter in addition to or in lieu of the provisions of its special charter, and that such ordinance shall operate to that extent as an amendment of such charter. Held, that the court will take judicial notice of the amendment of a special charter by the adoption of such an ordinance.</p> <p>6. Where pursuant to law an appeal has been taken to the circuit court from the disallowance of a claim by the common council of a city, it is not necessary that issue should be joined in order that the case may be noticed ,for trial. If no formal pleadings are required by the trial court’, the claim serves as a complaint and the law implies the fiction of a general denial.</p> <p>7. The irregularity of a premature notice of trial is waived if, after the objection is overruled, the party goes to trial on the merits.,</p> <p>8. Sec. 985-60, Stats. 1898, provides for the giving of an undertaking on appeal to the circuit court from the disallowance of a claim against a city by the common council, “ conditioned for the faithful prosecution of such appeal and the payment of all costs that shall be adjudged against the appellant.” Held, that an undertaking which followed the exact words of the statute, but added after the word “appellant ” the words “by the court,” was sufficient.</p> <p>9. In an action'for personal injuries caused by a fall on a defective sidewalk, a recovery of 05,000 damages is held not excessive, the evidence showing plaintiff to be in a very bad condition, with small chances of improvement.</p>

<p> Banks and banicing: Insolvency: Stoelcholders’ liability: Estates of decedents: Transfers: Limitation of actions: Capital stock not fully paid: Fraud: Creditors’ action: Unlawful dividends: Inability of residuary legatee: Trial: Discretion: Ltebulting presumption of payment: Appeal: Parties. </p> <p>1. The statutory liability of stockholders in a bank under sec. 47 of the banking act may be enforced against the estate of a deceased stockholder in an action by creditors to wind up the affairs of the bank, and need not be presented as a claim in the settlement of the estate in the county court; and if the estate has been distributed the residuary legatee will be liable, and in case of his death his personal representative.</p> <p>% Under seo. 16 of the banking act (providing that a person holding stock in any bank who shall sell or transfer the same “ shall be held and remain for the term of six months from and after such sale . . . personally liable to the amount of the stock so as aforesaid sold . . . for the payment of all debts and liabilities of such bank ” existing at the time of such sale), the transferrer’s liability is limited to those who were creditors at the time of the transfer, and the action to enforce such liability must be commenced against him within the six months so limited. The commencement of an action to wind up the affairs of the bank within such six months, to which however the person so liable was not made a party within the required time, is insufficient to prevent the running of the statute.</p> <p>3. A stockholder in a banking corporation received certificates of stock purporting to be full-paid, for which he actually paid but a. fraction of the par value. Subsequently his liability for the balance was in form discharged by the application to its payment of an entirely fictitious accumulation of profits, and an increase in the capital stock was paid for in the same manner. Held, that as between the stockholder and the bank, the latter could not recover the unpaid portion of the capital stock, but that the transaction constituted a fraud upon the creditors of the bank and gave rise to a right of action in their favor, enforceable only in an equitable action to which the bank is a party.</p> <p>4 The cause of action in favor of the creditors of the bank in such a case being of such-a nature that it could not be adjudicated in the county court in probate proceedings, their rights against a deceased stockholder are not foreclosed by failure to present their claim in that court, but after the settlement of his estate they may enforce them against his residuary legatee.</p> <p>■6. The liability of a stockholder in an insolvent bank to refund dividends paid him in violation of sec. 40 of the banking act is to the corporation and enforceable by it; but a stockholder or creditor may invoke the aid of a court of equity to compel restitution, when the corporation will not act. ,</p> <p>6. One who seeks, under sec. 3845, Stats. 1898, to recover from a legatee or next of kin a claim that might have been proved in county court must allege and prove that no time had been fixed in which creditors might present their claims against the deceased for allowance, or that no notice of such limitation had been ordered or given.</p> <p>7. The right of an insolvent bank, whose affairs are being wound up at the suit of creditors, to recover dividends paid a deceased stockholder in violation of sec. 40 of the banking act, is one provable in county court, and cannot be enforced against next of kin or legatees if opportunity to prove it against the estate was duly given.</p> <p>8. After disposing of a motion in a cause which is upon the calendar under due notice of trial, it is within the discretion of the court to proceed with the trial of the remaining issues, notwithstanding the prohibition against taking oral evidence on a motion.</p> <p>9. In proceedings to recover from the residuary legatee of a deceased stockholder in an insolvent bank a balance due on shares of stock derived from her testator, there was evidence that the testator gave a stock note for the shares but no evidence as to what became of it. There was evidence, however, that he never paid more than sixty per cent, on his shares, and that some years later a resolution was passed attempting to pay the remaining forty per cent, out of a fictitious accumulation of profits. Held, sufficient to rebut the presumption that the whole of the stock note had been paid.</p> <p>10.Where judgment was entered against two defendants and one only appealed, the other cannot on such appeal be heard to attack the judgment as against him.</p>

<p> Negligence: Shelling popcorn: Evidence: Instructions to jury: Ordinary care: Acceptance after examination. </p> <p>1. In an action to recover damages for negligence and unskilfulness in shelling popcorn, by reason of which it was rendered unfit for popping and worthless except for feed and was returned from Chicago where it had been shipped, evidence that corn from the same crib, raised the same year, and in the same condition, had been shelled in good condition for popping by other parties with cornshellers of the same or similar construction, and that the corn so shelled had been accepted in Chicago and Had popped well, was admissible as tending to prove that the corn shelled by defendant might, with proper care, have been shelled so as to be fit for popping.</p> <p>2. Defendant's foreman testified that, in plaintiff’s presence, before beginning the work, he adjusted the rollers of'the sheller, which were then closed, so that they were opened as wide as possible. Plaintiff’s evidence tended to show that the adjustment had been changed after a portion of the corn had been shelled. Held, that it was not error to refuse to allow the foreman, after being recalled, to testify as to how the rollers were before he first adjusted them.</p> <p>3. Where a witness had testified to hearing a remark made by plaintiff to the foreman in defendant’s mill, and other witnesses had testified fully as to the amount of noise and difficulty of hearing in the mill, it was not error to refuse to allow the foreman to testify as to whether the remark could have been heard by such witness.</p> <p>4. A refusal to instruct that “ if the plaintiff was present when the corn was shelled, and saw some of it, and had an opportunity to examine all of it, and afterwards took possession of all of it, and removed it from the mill of the defendant, and then paid for the shelling, and made no objection to it on account of its being broken or injured in shelling, such taking possession of the corn and removing it was an acceptance of the corn, and he cannot recover in this action any damages for the broken condition that was apparent when he removed it,” is held not to have been erroneous where there was evidence tending to prove that three bag^ of the corn shelled by defendant wei’e in a proper condition for popping; that the balance (about thirty bags) was badly cracked; and that plaintiff’s "examination was confined to the three bags which were good.</p> <p>6. An instruction that ordinary care means “such care as a person of ordinary prudence and skill would usually exercise under the circumstances,” is held not erroneous.</p>

<p>Highways: Obstruction: Res judicata: Parties: Appeal: Opinion of supreme court.</p> <p>1. Where a town procured the bringing of an action in the name of the state to recover the forfeiture imposed by sec. 1326, Stats, 1898, for obstructing a highway by means of a fence, employed the attorneys, and paid the expenses, it is in effect a party thereto, and the judgment therein is conclusive upon it, in a subsequent proceeding in its own name to compel the removal of the fence as an encroachment, upon any question which was litigated and finally decided in the former action.</p> <p>2. The opinion of the supreme court on appeal constitutes the findings of fact and conclusions of law upon which its judgment is based, and is to be considered and examined in determining what was finally decided in the case.</p> <p>3. In an action to recover the forfeiture provided by sec. 1326, Stats. 1898, for obstructing a highway, the trial court found that there was no highway where the fence alleged to be an obstruction stood, but that the fence was on defendant’s land. The judgment in favor of defendant was affirmed on appeal on the ground that, even upon the assumption that the fence stood in the highway, it did not constitute an obstruction, within the meaning of sec. 1326, but simply an encroachment under sec. 1330. Held, that the original findings were in no way set aside or impeached, and that the judgment as affirmed is conclusive that the locus in quo was not a part of the highway.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: James J. Dior, Circuit Judge.</p> <p>An action was commenced in justice’s court December 6, 1899, by Chas. M. Kellar against Theodore Posbrig to recover on a promissory note, returnable December 20,1899. The plaintiff filed a written complaint, in which the defendant was named “Theodore Posburg.” The defendant appeared and answered, and the- case was adjourned from time to time until March 12, 1900. At that date both parties were ready for trial. The plaintiff swore ■ a witness, whereupon the defendant objected to any evidence under the complaint, for the reason that it failed to state a cause of action against “ Theodore Posbrig,” but did state a cause of action against “ Theodore Posburg.” The plaintiff asked leave to amend by making the change in the name of defendant. The defendant made an affidavit of surprise, but, after some, consideration, the justice permitted the amendment, on condition that plaintiff pay defendant $5.40, the cost of one day’s attendance of his witnesses. This sum was paid to defendant’s attorney. The following entry appears in the justice’s docket:</p> <p>“ By consent of parties, this case is adjourned to March 21, 1900, at 10 o’clock a. in., at my office in the city of Wauke-sha, Wisconsin; said adjournment having been made necessary by the allowance of said amendment.”</p> <p>On the adjourned day the defendant failed to appear, and plaintiff took judgment for the amount of the note and costs. Thereafter the defendant sued out a writ of certiorari addressed to the justice, claiming that he lost jurisdiction of the case by allowing the amendment of the complaint after a witness had been sworn on the trial. Due return to the writ was made by the justice, and after a hearing on the merits, on motion of the attorney for the justice, a judgment was entered by the circuit court quashing the writ and for costs. From this judgment the relator has taken this appeal.</p>