Volume 112 — Wisconsin Reports

<p>Appeal from an order of the circuit court for "Washington county; James J. Dick, Circuit Judge.</p> <p>Plaintiff filed a petition in the circuit court for said county, stating, in substance, that it is a railway corporation entitled to the benefit of the statutes of this state for the acquirement by such corporations of real estate necessary for their use, by the exercise of the power of eminent domain; and further stating all the facts required by law to entitle it to take certain real estate described and to have commissioners appointed to appraise the same and -determine the compensation to be paid to the owners thereof, if the particular use to which the petitioner purposed devoting the land was public so that constitutional authority existed for the exercise of the power of eminent domain by the corporation to acquire it. The facts in regard to such particular use, as stated in the petition, are as follows: In the vicinity of Wallace Lake, a body of water distant about one mile and a quarter from petitioner’s main line, are located important ice industries, and other like industries are in prospect. Great quantities of ice are annually taken from such lake and shipped to various points on petitioner’s railroad. A spur track, reaching from petitioner’s main line to the ice houses on the bank of the lake, is necessary to the maintenance of such industries, in order that the ice can be economically transferred from the bank of the lake and the ice houses there situate to and over the. main line of petitioner’s railroad.</p> <p>Two of the persons named in the petition as owners of or interested in a portion of the land therein described, answered, alleging that the proceedings were instituted and carried on at the request and expense and for the benefit of the Pike & North Lakes Ice Company, a private corporation; that the land was not necessary for the purpose of operating petitioner’s road.</p> <p>On the hearing evidence was produced to the following effect: The petitioner is a railway corporation as alleged. A large and important part of its business as a public carrier of freight is the transportation of ice from sources of supply to various points on the lines of its railway system. Its main line passes the vicinity of -the place sought to be reached by the proposed spur track, within, about one mile thereof. The usual way of handling ice from sources of supply, over railway systems, is by constructing spur tracks from the main lines to such sources at the expense, in the main, of the proprietors of the ice industries. In such cases the railway companies own the spur tracks and operate them as part of their systems and in the same manner. The petitioner owns several such spur tracks. The proposed spur track is to be something over one mile long. There is a station on the main line of the petitioner’s railroad a little over a mile from the terminus of the proposed track, but it would be impossible to profitably conduct the ice industry to be served by such spur track other than by the use thereof. The general freight business of the petitioner in the vicinity of the ice industry is accommodated at the railway station referred to. It is proposed to construct such spur track at the expense of the Pike & North Lakes Ice Company, except the expense of ties and rails and placing the same in position. The ice company has procured the right of way for the use of the petitioner, except that portion in controversy in this proceeding. It is customary, in operating such spur tracks, to receive and carry freight over the same from any person who may desire such service. Such tracks are usually constructed at the request, and in the main at the expense, of the owner of the particular industry established or to be established, and upon a guaranty or assurance of sufficient business to warrant maintaining and operating the track; but they are operated without discrimination as to all persons desiring service by them. Such is the inducement to the petitioner to enter upon the construction of the spur track in question, and its purpose. Such spur track will reach four lakes, but the immediate purpose of it is to reach two lakes as sources of supply of ice. The only concern to be immediately served by such spur track, as a shipper of ice from the source of ice supply, is the Pike & North Lakes Ice Company, it being the proprietor of an ice industry, established or in immediate prospect, that will need the use of such track. The track will be at the disposal, as part of the petitioner’s system, of other proprietors of ice industries, should any such be established at the terminus of the track or other points that can be reached by it. There is no highway or other public way, at present, reaching to the vicinity of the proposed track. No one can reach such terminus without passing over private property. The only purpose of such spur track is to furnish the Pike & North Lakes Ice Company, and such others as may desire to use it, with facilities for transporting ice over the petitioner’s railroad to consumers at points reached by such road.</p> <p>The court found, among other things, that there were located and to be located important ice industries, intended to be reached by the proposed spur track to be constructed over the land described in the petition as therein alleged; that the real estate which the petitioner desired to take was necessary for the purpose of operating its road and constructing and operating the spur track; that the use to which petitioner purposed devoting the land was public, and that it had a right to acquire the same by exercising the power of eminent domain. Commissioners were appointed accordingly, to appraise the land and determine the compensation to which the owners thereof were entitled by reason of being deprived of the same against their will for the use of petitioner. The answering landowners appealed.</p> <p>They contended, inter alia, that it is not enough to render the use public that the public retain certain definite rights to the use and enjoyment of the property, unless such rights are secured to the public by reasonable opportunity for their exercise. A mere declaration on the part of the railroad company that it will carry a car-load of freight over this spur track for any one desiring to ship the same will not make the track subserve a public use, unless it is so situated and built as to secure to the public facilities for the exercise of such right. If the construction of the track is such as to limit its use to the shipper owning the land at its terminus, the right to the use or enjoyment of this track by the public is not secured, and the use is merely a private one. If the use offered to the public is subject to such limitations as to deprive it of its public character and of all beneficial enjoyment, it will he held to be a private use and condemnation will not be permitted. Matter of Niagara Falls & W. B. Go. 108 U. Y. 3T5-; Apex T. Go. v. Garlarle, 32 Oreg. 582; Matter of Split Boelc G. B. Go. 128 1ST. Y. 408; Wisconsin W. Go. v. Winans, 85 "Wis. 26; Salt Go. v. Brown, 7 V. Ya. 191; Lewis, Em. Dom. (2d ed.), § 111; Bailroacl Go. v. Iron WorTcs, 31 W. Ya. 110. If the condemnation here sought should be permitted and the spur track here projected should be actually built and used as the petition and undisputed evidence show it is intended it should be, its use would be condemned as a private one. State v. Bailway Go. 40 Ohio St. 504; People ex rel. Bobmson v. Pittsburgh B. Go. 53 Oal. 694; Bensselaer <& S. B. Go. v. Pavis, 43 M. Y. 137, 146; Bailway Go. v. Petty, 57 Ark. 359.</p>

<p>Appeal from an order of the circuit court for Waukesha county: James J. Dick, Circuit Judge.</p> <p>This is an appeal from an order overruling a demurrer to a complaint alleging, in effect, that at the time of the com-, mencement of the action the several plaintiffs were the owners in fee simple and in severalty' of the several lots of land therein described, each lot fronting and abutting upon Lincoln avenue in the city of Waukesha, such lots having an aggregate frontage on both sides of said avenue of about 2,000 feet, being between Hartwell avenue and the eastern limits of the city of Waukesha; that the title of the respective plaintiffs to said several lots extended to the center line of Lincoln avenue, subject only to the right of the public to travel over and upon that avenue -and to use' the same as and for a public highway; that Lincoln avenue was the main highway in the city, and was sixty feet wide, and had been dedicated to the public as a highway, and ever since such dedication had been the main thoroughfare running through the city; that the defendant was a corporation, created and organized under and by virtue of ch. 86, and secs. 1862 and 1863 of ch. 87, of the Revised Statutes of this state, and the laws amendatory thereof and supplemental thereto, December 14, 1898; that its business was and is, under its articles of incorporation, to construct, equip, maintain, and operate street railways in the city and county of Milwaukee and elsewhere in this state, and to purchase or otherwise acquire, take, hold, and operate real and personal property, rights, privileges, ordinances, and franchises, and any other enterprise suitable for or in furtherance of the business and purpose of such corporation, as more fully appears from a copy of the articles of incorporation thereunto annexed and made a part thereof; that by virtue of such articles the defendant claims to be authorized and empowered to build and operate a street railway system, to be propelled by electric or other power, for the transportation and carriage of passengers, mail, express, merchandise, and other freight in the city and county of Milwaukee and elsewhere. in this state; that in pursuance of such authority the defendant, in May, 1898, caused to be built, constructed, and equipped an electric railway from the city of Milwaukee to Pewaukee Lake, at a-point about seven miles northwesterly from the city of Waukesha; that such electric railway line passed and now passes through the city of Waukesha, and in so doing traversed and now traverses said Lincoln avenue over its entire length, of about one half a mile, from the eastern limits of the city of Waukesha to Hartwell avenue; that such system and line of railway was and is of the overhead trolley system throughout its entire length, and for the operation of the same used a large copper wire, suspended about eighteen feet above the track, held in place by numerous poles twenty feet high planted upon each side of the track, from which were strung other wires to connect with and suspend such trolley wires; that such wires were at all times heavily charged with electricity for the operation of cars and trains upon said railway; that prior to August 1,1900, the defendant bad but one railway track on Lincoln avenue, and tbat was located in the center of that avenue, and consisted of heavy T rails upon' wooden ties; that since that time the defendant moved such track and constructed another additional track, of similar materials and construction, in Lincoln avenue, and over and upon its entire length, in the city of Waukesha; that in such construction and equipment of said double-track system over and upon Lincoln avenue a great amount of excavation of the surface of that street had been done by the defendant, and the same has been wholly impassable for teams or other vehicles of the plaintiffs or the public for a great length of time, and is still so impassable; that ever since May, 1898, the defendant has caused said railway system to be used and operated wholly as a commercial railway, propelling cars with passengers, baggage, and freight over its line on Lincoln avenue every hour; that said railway line and system as operated in no manner lessens or tends to lessen or relieve the streets of the city of Waukesha from travel; that said railway has been so operated wholLy without the permission or consent of the plaintiffs or any of them, and against their wishes and protests, and without any compensation whatever to the plaintiffs therefor, and without any right or authority of law; that said railway so operated destroys the use of Lincoln avenue as a public highway, and prevented and still prevents the plaintiffs from having access to and egress from their premises, and seriously interferes with and impairs the use and enjoyment by the plaintiffs of their premises and homes and business, and has and will greatly injure and depreciate the value of the property of each of them; that by reason ,of the premises the plaintiffs and each of them is made to suffer continuously irreparable injury, and that they have no adequate remedy at law.</p> <p>“And the plaintiffs further allege that, by reason and because of the wrongful and unlawful location, construction, and operation of said railway upon their said premises, within said Lincoln avenue, said plaintiffs have already suffered and sustained damages in the sum of five thousand dollars. And the plaintiffs further allege that the aforesaid unlawful and wrongful location, construction, and operation of said railway over and upon their, said premises, within said Lincoln avenue, as aforesaid, and the maintenance of the same therein, is a nuisance to said plaintiffs and to each of them.”</p> <p>The complaint prays the judgment of the court that the plaintiffs have and recover of and from the defendant the said sum of $5,000 damages, which they have already suffered and sustained; that said railway tracks, ties, poles, wires, and other erections of the defendant within the limits of Lincoln avenue and upon the lands and premises of the plaintiffs, constituting the nuisance complained of, be abated and removed from said street, and from the several lots, pieces, and parcels of land of the plaintiffs, lying and being within the limits of said highway; that the defendant, its officers, agents, and employees, and successors, assigns, and lessees, be perpetually enjoined and restrained from further erecting any obstructions upon, or in any manner interfering with, the lands and premises of the plaintiffs, or any of them; and for costs.</p>

Dice, Circuit Judge. Garnishee action to charge the Port Washington State Bank as debtor of Michael Becker, the defendant in the principal action.

<p>Appeal from a judgment of the county court of Dodge county: J. A. BaeNev, Judge.</p> <p>The plaintiff brought this action to recover for the services of his minor son, claiming in his complaint $115.75 for seven months and twenty-two days’ work, from December 1, 1898, to July 22, 1899, reasonably worth $10 per month for winter months and $20 for summer months. The answer alleged a contract with the son to work for defendant one year for the sum of $200, made with the knowledge and consent of plaintiff. It also alleged a working from December 2, 1898, to July 22,1899, when the son quit without any excuse; the payment during the progress of the work to the son of $57.70; and claimed damages for the breach of -the contract. On the trial the plaintiff gave evidence tending to support his cause of action, the nature of which will more fully appear in the opinion, at the close of which the court directed a verdict for defendant. A judgment dismissing the complaint and for costs was duly entered, from which plaintiff takes this appeal.</p>

Diox, Circuit Judge. Action upon a policy of accident insurance, excluding from the risk “ death, (or) loss of limb or sight, (or) disability resulting wholly or partly, directly or indirectly, from . . „ unnecessary exposure to danger.” Plaintiff was wounded in the right wrist by the accidental discharge of his own gun under circumstances detailed in the opinion, whereby amputation of the right hand was rendered necessary.

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

Dice, Circuit Judge. This is an action in equity to set aside the discharge pf a real-estate mortgage, on tbe ground that it was obtained by fraud. The parties to the action are brother and sister and children of one Catherine Dunn, who died August 18, 1890.

<p>(1, 2) Cities: Amendment of charter: Effect wpon suits. (3, 4) Evidence: Photographs: X-rays. (5, 6) Pleading: Injuries from negligence. (7, 8, 20) Defect in sidewalk: Notice: Evidence. (13) Supreme court: Directions as to procedure in trial court. (9-12, 14-19, 21) Special verdict, how framed: Contributory negligence: Proximate cause: Instructions to jury. (22) Appeal: Immaterial errors.</p> <p>1. A change in a special.city charter, pursuant to the general law on the subject, has the same effect as would an amendment thereof by direct legislative enactment, if the constitution permitted such an enactment.</p> <p>2. A change in a special city charter, in the manner provided in the general law on the subject, is controlled by sec. 4974, Stats. 1898, as regards its effect upon suits to recover on causes of action dependent in whole or in part upon the provisions of the charter repealed by such change.</p> <p>3. The rule in regard to the use of ordinary photographs upon the trial of a cause for the better understanding by the jury of the evidence or the merits of the case, applies to photographs taken by the aid of X-rays.</p> <p>4 Whether a photograph is proper or not in any particular situation upon the trial of a case is a matter within the sound discretion of the trial judge, and his determination cannot be disturbed if there _ was any reasonable ground therefor.</p> <p>5. In a complaint grounded on negligence, a claim made for damages for a specific injury reaches to and includes injuries directly caused by it and so closely connected therewith as to be rightly considered a part thereof.</p> <p>8.A claim made in a complaint for a specific injury “and other injuries” is indefinite and uncertain as to what the term “other injuries ” means, but is sufficiently suggestive to render evidence admissible to prove injuries other than the one specifically described.</p> <p>7. Evidence by a street commissioner of a city, to the effect that a sidewalk was generally out of repair, both as to the surface thereof and the stringers, some three months before the happening of an accident alleged to have been caused by reason of a defect in the walk at a particular point, is competent for the purpose of showing constructive notice to the city of such particular defect, notwithstanding evidence by the street commissioner that he repaired the walk, so far as practicable, by using the old material and without putting in new stringers, before the accident happened.</p> <p>8. Evidence by the street commissioner of a city that he knew by personal examination that the stringers of a sidewalk were “all used up,” established actual notice to the city of the'defective condition of the walk in that regard at the particular place therein which was in controversy.</p> <p>9. If all the facts in issue are covered in a special verdict by special questions free from harmful error, *the refusal to submit other questions, or their submission, does not constitute reversible error if error at all, unless the number of questions submitted, and their character, be such that there is reasonable ground to believe that the essential issues involved were not intelligently and fairly considered and passed upon by the jury.</p> <p>10.Only special questions, covering the issues made by the pleadings and controverted on the evidence, each so framed as to cover a single issue and admit of a direct answer, should be included in a special verdict.</p> <p>11. In framing a special verdict, issues that are single should not be subdivided and covered by several questions, nor should questions, be so framed as to require the jury to decide a single issue by viewing it in various aspects.</p> <p>12. A special verdict should, so far as practicable, be framed so as to secure an intelligent consideration, upon the evidence, of the issues made by the pleadings and controverted on the evidence, separately, and a decision thereof without reference to the final result upon the rights of the parties. The number of questions, ordinarily, should coincide with the number of single, controverted issues of fact and be arranged in logical order.</p> <p>13. What is said by a supreme judicial tribunal in an advisory way as to matters of procedure in trial courts should be followed as a judicial direction.</p> <p>14 In an action founded on negligence, the subject of contributory negligence may be submitted to the jury in this form: “ Did a slight want of ordinary care on the part of the plaintiff contribute to the injury? ” though the practice of dividing such subject into want of ordinary care and slight want of ordinary care is not approved.</p> <p>15. The better way to submit the subject of contributory negligence of the plaintiff, in an action grounded on negligence, is by the simple question, “Was there any want of ordinary care on the part of the plaintiff that contributed to the injury complained of?’’and to explain to the jury that any want of ordinary care upon the part of the plaintiff, however slight, established by a preponderance of the evidence to the satisfaction of the jury, requires an affirmative answer to the question.</p> <p>16. It is improper to submit the subject of want of ordinary care of the plaintiff, in an action grounded on negligence, in this form: “Was the plaintiff guilty of a slight want of ordinary care and prudence which contributed directly to cause the injury complained of ? ” the mischief being in the word “ directly.”</p> <p>17. In order to make want of ordinary care of the plaintiff, in an action grounded on negligence, a defense to the defendant’s negligence, there must be the same proximate connection between the former’s fault and the injury as between the latter’s fault and such injury; hence, it is just as erroneous to say the proximate cause is the direct cause when applied to the plaintiff as when applied to the defendant.</p> <p>18. It is improper in a question submitted to a jury, in an action grounded on negligence, or in an instruction to the jury, to limit the probable effect of the negligent act of the defendant, which he ought reasonably to have apprehended, to the happening of the particular injury in question.</p> <p>19. Where a special verdict is taken, it is improper to ask the jury to find whether they are in accord with the opinion which the court may reach upon the facts found by them, or to make any general finding of any kind in respect to the right of the plaintiff or the defendant.</p> <p>20. Knowledge of the officer or officers of a city charged with the immediate duty of repairing its sidewalks, of the insufficient condition thereof in respect to being out of repair after having been once properly constructed, satisfies the element of notice to the defendant of such insufficient condition, in an action against the city to recover damages for a personal injury caused thereby, if such knowledge existed a sufficient length of time before the injury to have enabled the city, by the exercise of reasonable diligence, to repair the defect.</p> <p>21. Where a special verdict is taken, general instructions on any subject involved should not be given.</p> <p>22. Regardless of how numerous and inexcusable may be the errors committed on the trial of a cause, the judgment rendered must be affirmed on appeal, unless it appears probable that the substantial rights of the unsuccessful party were thereby injuriously affected. Bardeen, J., dissents.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeal from a judgment of the circuit court for Dodge county: James J. DioK, Circuit Judge.</p> <p>The defendants were sued upon a charge that they negligently started a fire, and wrongfully and negligently suffered said fire to run and spread on certain described lands of the plaintiff, to his damage. It appeared that on November 6, 1899, a fire was started by the defendant Imler upon a certain marsh forty occupied by the two defendants, which had not been mowed the previous year; that it was a dry time; that said fire got beyond the control of the defendants, although they had made some preparation to prevent that event by equipping themselves with wet carpets, etc.; and that, although they made exertion to prevent its escape, it ran northward onto and across a marsh forty belonging to the plaintiff, and destroyed a considerable quantity of small poplar trees and some willows of larger size growing thereon. A special verdict was taken, in which it was found that the fire was set by defendant Imler, and not by the two defendants jointly; that it was not negligently set, and that it was not negligently suffered to escape onto the plaintiff’s land; that it did not injure the plaintiff’s land; and that his damages were “ blank dollars.” Motion to set aside several answers was overruled, as also one for a new trial, and judgment was entered in favor of the defendants, from which the plaintiff appeals.</p> <p>They contended, inter alia, that the claim that the wind changed or came up after the fire was set is no defense, because a person of ordinary prudence will anticipate such changes as likely to occur. Northern Paeifio B. Go. v. Lewis, 51 Ned. Kep. 658; Gram v. N. JP. B. Go. 1 N. Dak. 252. The spreading of fire once set, especially in the open country, is natural and reasonably to be expected. Tyler v. Bieamore, 81 Ya. 466. Before the fire could have burned what defendant intended it to burn it naturally would have extended so as to have a frontage across the entire forty, and yet, appreciating that it might get away from her, instead of mowing or plowing a space to act as a barrier, she took a few small pieces of carpet such as an old lady, could carry eighty rods, and neither took men along to do the work and help control the fire nor gave notice to any one of her intention to set it. Such conduct was negligence as matter of law. Shearman & Eedf. Negligence, § 669; Cooley, Torts, TOO; Sellech v. L. S. dé M. S. R. Go. 93 Mich. 375; Salisbury v. JSerehenroder, 106 Mass. 458; Bolin v. C., St. JP., JMJ. <& O. JR. Go. 108 Wis. 333; Louisville, JR. A. <& C. R. Go. v. Nitsehe, 126 Ind. 229, and cases cited; Broom, Legal Maxims, 383; Vaughan v. Menlove, 3 Bing. N. C. 468; Tuberville v. Stamgye, Ld. Eaym. 264,1 Salk. 13; Jones v. Festiniog R. Go. L. E. 3 Q. B. 733. It was negligence On the part of the defendants to fail to give p] aintiff notice, that he might protect his property. Baehelder v. JUeagcm, 18 Me. 32; Ilewey v. Nourse, 54 Me. 258; Tourtellot v. Rosebrooh, 1 Met. 460; Bennett v. Seutt, 18 Barb. 348.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. HastiNgs, Jr., Circuit Judge.</p> <p>This is an action in equity for tbe purpose of obtaining a judgment decreeing tbe plaintiff to be tbe owner' of an undivided one-balf of 160 acres of valuable mining lands in tbe county of Iron, in this state, tbe title to which is now in tbe defendant Billings.</p> <p>Prior to December 12,1895, tbe record title to the lands in question was in one Emmeline E. Yaugbn, and on that day she contracted to sell the same to the defendant Nelson for §20,000, which sale was consummated by a deed February 24, 1896. Nelson immediately thereafter deeded the same to the defendant Nelson Mining Company, which in turn deeded the same to the defendant Billings. The plaintiff claims that he was the equitable owner of two thirds of said lands at the time of the making of the contract of sale to Nelson. It appears that the plaintiff then had a suit pending against Emmeline E. Yaughn to enforce his alleged equitable title, and he claims that some time in the fall of 1895 he made an oral agreement with the defendant Hartley to the effect that, if he (Hartley) would purchase Mrs. Yaughn’s title, he (Bardon) would dismiss said action against Mrs. Yaughn, and transfer to Hartley an undivided one-sixth of the lands, and that they would then own the same in equal shares and would operate the mines thereon. He further claims that Hartley and Nelson fraudulently conspired together and caused the title to the lands to be taken in Nelson in fraud of the plaintiff’s rights; that when Nelson purchased he (Bardon) dismissed his said action, as he had agreed, but that Nelson then fraudulently refused to recognize the plaintiff’s rights and immediately conveyed the property to the Nelson Mining Company, but that both the Nelson Mining Compcmy and the defendant Billings took title with notice of the plaintiff’s rights. The defendants claimed that Bardon had no title to the lands; that Nelson purchased the same in good faith upon his own account, and was not charged with any duty arising out of the negotiations between Hartley and Bardon.</p> <p>The court found that in October, 1874, Charles Fisher and Samuel S. Yaughn were copartners at Ashland, "Wisconsin, and that they purchased the lands in question of the United States as such partners, and that the patent was issued in the name of Yaughn alone, and that Yaughn immediately executed a paper declaring that the land was owned one third by himself, one third by Fisher, and one third by one Patrick Hickey, but that it did not appear that Hickey ever received said paper or became a party thereto; that the partnership between Fisher and Yaughn was dissolved June 24, 1875, and a final settlement of the firm affairs had, and that Fisher conveyed his interest in the said lands to Yaughn, who paid and redeemed the taxes on the same until his death in January, 1886, leaving Emmeline E. Vaughn his widow and sole heir at law; that in November, 1886, Fisher commenced an action against Mrs. Yaughn, claiming to be the owner of a two-thirds interest in said lands, having purchased Hickey’s one-third; that said action was thereafter tried and went to judgment in the circuit court for Ashland county, and came to this court by appeal, and finally resulted in a final judgment dismissing the plaintiff’s complaint upon the merits (Fisher v. Vaughn, 75 Wis. 609); that the plaintiff had full knowledge of the proceedings in said action, and assisted Fisher therein by advancing him money, and knew of the final decision, but nevertheless after such final decision he obtained from Fisher a conveyance of his pretended title to an undivided two-thirds of said lands; that thereafter the plaintiff commenced an action against Emmeline E. Vaughn, claiming to recover an undivided two-thirds of said lands, and the said Emmeline E. Vaughn appeared in said action and set up the former adjudication as a bar; that Emmeline E. Vaughn never recognized that either Fisher or Hartley or the plaintiff, had any interests, legal or equitable, in said lands; that</p> <p>“ some time during the summer or fall of 1895 (the evidence does not show more approximately when), and while the said suit of the plaintiff against Emmeline E. Vaughn, last mentioned, was pending, the plaintiff herein, after explaining fully to the defendant Charles H. Hartley his claim of title to said lands, proposed orally to said Hartley that if he (Hartley) would purchase and pay for Mrs. Vaughn’s title, and, when he got it, concede the plaintiff’s title to two thirds, he would give said Hartley one fourth of this two-thirds, or one sixth of the whole, and they would own the property as tenants in common, and then do something with the property,— sell royalties or operate the mine,— and share equally; but the said Hartley had no means wherewith to purchase said lands from Mrs. Vaughn, and did not accept the said proposition made by the plaintiff, but told the plaintiff that, if he could raise the money to purchase said lands from Mrs. Vaughn, he would be willing to accept said proposition. This is the nearest approach to a contract that the evidence shows between the plaintiff and said Hartley. There never was any written agreement whatever, nor any complete oral agreement, concerning said land, or concerning any partnership between them, and the allegations of the complaint in regard to copartnership and an agreement between the said plaintiff and said Hartley are untrue.”</p> <p>The court further found that the said Emmeline E. Vaughn was not connected with the negotiations between the plaintiff and Hartley, or consulted with regard to the same; that December 12, 1895, she entered into a written contract of sale of the lands to the defendant Nelson for the sum of $20,000, which contract was expressly made subject to the claim of title made by said Bardon, and that the said Emmeline E. Vaughn did not then or at any time agree with Bardon, Hartley, and Nelson, or either of them, that the suit of Bardon against her should be dismissed; that Nelson before purchasing said lands was advised that the plaintiff had no legal or equitable title to any interest therein, and on that advice he made said purchase, with knowledge of the plaintiff’s claim and subject thereto, and made said purchase solely in his own interest, and that Hartley was not directly or indirectly a party thereto; that before such purchase Nelson informed Hartley that he (Nelson) would have nothing to do with the proposition made by Bardon to Hartley, and that Nelson has never at any time recognized any right or interest of the plaintiff or of said Hartley in said lands; that the said Emmeline E. Vaughn deeded said lands February 24, 1896, to Nelson, who deeded tbe same February 27, 1896, to the Nelson Mining Company, which company deeded the same July 26, 1896, to the defendant Frank Billings, and that all of said conveyances were made in good faith and for a valuable consideration, and subject to the claim of the plaintiff; that on the 22d day of April, 1896, the attorney for the plaintiff in his suit against Mrs. Vaughn prepared and signed a notice dismissing said suit, but that the evidence does not show when the same was served upon the attorneys of Mrs. Vaughn; that the plaintiff did not begin his suit against Mrs. Vaughn believing that he could maintain a claim of title to two thirds of the lands, but thought that there was some equity in his claim, and that by asserting the same he might obtain something by way of settlement; that Nelson had full information as to the negotiations between Bardon and Hartley relative to said lands; that immediately after Nelson's purchase, and on the same day, the plaintiff was fully informed of said purchase and that Nelson claimed said lands as his own and did not recognize that Hartley had any interest therein, and that the plaintiff did not discontinue his suit against Mrs. Vaughn until four months after that time; that Hartley led plaintiff to believe that he had some arrangement with Nelson by which Nelson was to furnish Hartley with money to buy Mrs. Vaughn’s title, and that he (Hartley) hoped that, after getting the title, Nelson would make some settlement with the plaintiff that would satisfy him; that at the time of the sale of the lands they were of uncertain value, although the plaintiff and Hartley considered them of greater value than the price paid by Nelson, but that Mrs. Vaughn and her attorney considered that the same was a fair price; that Mrs. Vaughn never settled plaintiff’s suit against her, nor recognized his claim, but claimed the whole title herself, and sold the whole title to Nelson for what she considered it worth; that Hartley was unable to raise the money to buy said lands from Mrs. Vaughn, but allowed Nelson to do so, and that Nelson bought with his own money, and acquired all of Mrs. Vaughn’s title, subject to the plaintiff’s claim, and that Hartley never acquired the Yaughn title, nor any right to it; that the plaintiff’s position ivas not changed in any way by the sale to Nelson; that he parted with nothing by reason of Nelson’s purchase; that he had the same claim against Nelson that he had against Mrs. Vaughn; that his suit against Mrs. Vaughn was still pending ; that the defendant Nelson had full notice of it, and purchased subject to it, and the plaintiff was under no obligation to anybody to dismiss said suit, and that his subsequent dismissal of it was not in pursuance of any agreement on his part to do it.</p> <p>As to the counterclaim made by the defendant Billings, the court found that Billings was the owner in fee of the lands in question, and that the plaintiff has and does set up a claim to an undivided two-thirds of said lands, which claim is unlawful and inequitable.</p> <p>Upon these findings of fact the court concluded that the plaintiff had no right, title, or interest of any kind in said lands, and that the defendant Frank Billings was the legal and equitable owner thereof; that the defendants were entitled to judgment dismissing the complaint, with costs, and that the defendant Billings was entitled to judgment upon his counterclaim, adjudging him to be the owner in fee of said lands, and that the plaintiff release to him all claim to said lands. Judgment was entered in accordance with these findings, and the plaintiff appeals.</p>

<p>(1-4) Constitutional law: Taxation: Review of county equalization: Commission: Exercise of judicial power. (5) Certiorari: Return; Judgment.</p> <p>1. The legislature has plenary power to deal with the whole question of taxation, subject to the constitutional limitations that taxes can be imposed only for public purposes and that the rule of taxation must be uniform. Its power is supreme in the selection of objects for taxation, determining the amount of taxes to be levied thereon and the purposes thereof, subject to the limitations before indicated, and in devising the machinery for assessing the taxable property, imposing taxes thereon, and collecting and disbursing the same.</p> <p>2. The enactment of sec. 1077a, Stats. 1898, providing for a review of the county equalization of the assessed value of property in any county, made by the assessor's of the various taxing districts therein, by a commission appointed by the circuit judge for such county, was a legitimate exercise of legislative power over the subject of taxation.</p> <p>S. The commission appointed under sec. 1077a, Stats. 1898, is required to act judicially, but not in a matter of law or equity within the meaning of sec. 2, art. VII, of the constitution.</p> <p>4. Sec. 2, art. VII, of the constitution, vesting all judicial power in matters of law or equity in certain courts, does not prohibit officers other than those holding judicial positions, strictly so called, from acting judicially. It only prohibits them from acting judicially in actions at law or in equity; that is, from doing those things which were done in actions at law or suits in equity, according to the system of jurisprudence which prevailed in this state at the time of the adoption of the constitution.</p> <p>5. A common-law writ of certiorari calls for the record of the proceedings challenged on jurisdictional grounds. The return to the writ imports absolute verity so far as it is responsive thereto. The allegations upon which the writ was founded, recited therein and not responded to by the return, are deemed to be true. Neither affidavits nor proofs of any kind, contradicting the return, can properly, be considered in determining a certiorari proceeding. After the return to the writ has been made, the court must give judgment upon the record of the challenged proceedings as it appears thereby, either on the merits or by quashing the writ.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeals from judgments of the circuit court for Brown county: S, D. Hastings, Je., Circuit Judge.</p> <p>Three actions to set aside an attachment as a cloud upon the title of certain lands owned by the plaintiffs. The facts regarding the status of the title of each plaintiff are not the same, but the differences are not of such moment as to require particular mention. Some years previous to 1890 the defendant and one S. A. Coleman entered into an arrangement by which defendant was to look up, select, and furnish Coleman the descriptions of state and government lands, estimate the timber thereon, and look after trespasses. Coleman was to enter the land and pay the taxes. Together they were to sell the lands, and out of the proceeds Coleman was to reimburse himself for his outlay, and the remainder of the proceeds was to be equally divided between them. From time to time, prior to the date aforesaid, defendant looked up and furnished the descriptions of a large number of acres of such lands, including the lands in suit, and Coleman took title in his own name. From time to time, also, sales were made; but Coleman, not having paid over to defendant his share of the proceeds, in June, 1890, the latter commenced an action against Coleman to recover a balance of §511,101.51 claimed to be his due on a mutual unsettled account. In said action an attachment was issued and levied upon a large number of forty-acre tracts of land which had been entered by Coleman under the arrangements mentioned, and which covered all, or nearly all, of the lands in suit. Coleman appeared in said action, admitted defendant’s claims to the amount of $11,735.51, denied the rest, and set up by way of setoff and counterclaims items in said unsettled account amounting to $17,079.17, and counterclaims not in said account amounting to $7,830.72. The reply of defendant thereto, served May 11, 1891, admitted $6,719.98 of said setoffs and counterclaims, and set up other items in his favor in said account, amounting to $501.03. In September, 1893, defendant moved and obtained a reference of said action on the ground that it involved the determination and examination of a long account of at least 100 items of charges and credits extending over many years. Nothing was ever done in said action until it was settled as hereinafter stated. Meanwhile Coleman continued selling the lands so held by him, and at different times sold to plaintiffs the greater part of the lands involved in these suits, under varying circumstances; the plaintiffs in each instance paying the full value therefor.</p> <p>On May 12, 1894, defendant began a second action against Coleman on said agreement for-$16,604.38 as his share of the proceeds of said lands sold by Coleman under their contract after the first action was begun, and made claim therein for his share of the purchase price of the lands which had been conveyed to plaintiffs. Another attachment was issued, and some eleven forty-acre tracts of land were levied upon. Coleman appeared and set up the same setoffs and counterclaims as in the first action, and the defendant set up the same counterclaims as in his former reply.</p> <p>Neither of said actions was ever brought to trial. On February 23,1899, Coleman and defendant got together, and compromised and settled all their differences, and entered into a stipulation, entitled in both said actions and signed by their respective attorneys, as follows:</p> <p>“It is hereby stipulated by the plaintiff and defendant in the two actions above entitled that all claims and counterclaims and other matters in controversy in said actions and each of them, and all other causes of action of every name or nature, if any, existing between or held by them or either of them, be, and the same are hereby, compromised and settled in the following manner, to wit: That the said plaintiff shalL have and take judgment of said court against the said defendant in the action first above entitled for tbe sum of fifteen thousand five hundred dollars (15,500); that the said plaintiff shall have and take judgment of said court against the said defendant in the action secondly above entitled for the sum of five hundred dollars (500); that each of said judgments shall be in the ordinary form of judgments for the recovery of money in actions on contract, but that each ■of said judgments shall be without costs to either party. It is further stipulated that the two judgments herein agreed •upon may be perfected and entered on record without further notice to said defendant or his attorneys.</p> <p>“ Green Bay, Wis., Feb. 23, 1899.”</p> <p>Pursuant to this stipulation judgment was taken in the first of said actions for $15,500 and in the other for $500. At that time defendant considered Coleman financially irresponsible, and said judgments were entered the best to secure, as he believed, the amount stipulated to be due, regardless of the part thereof due, on the basis of the compromise •or otherwise, in the respective actions. The court found ■that under the stipulation all claims and causes of action in and out of both said actions were settled and compromised, ■and that it cannot be determined exactly how much of the judgment entered in the first action was for claims and causes ■of action of defendant in said second action; but, on the basis that defendant was entitled to $16,000 in both actions, he would, on the proofs, be entitled to more than half that •sum in the second action. The court also found that other claims to a small amount, not included in either of said actions, were-settled by said stipulation, and that there was ■some 400 acres of land held by Coleman, for his share of which defendant sued, which had not been sold by Coleman ■at that time. On March 29, 1899, defendant issued execution on his said judgment, specially directing the sale of ■all the interest Coleman had on June 6, 1890, or had since ■acquired, in about all of the lands in suit.</p> <p>The above are the facts substantially appearing in the Oconto Company case, except that some findings relative to-the plaintiff’s title are omitted as not being material. The findings in the other cases vary somewhat in particular details, but are substantially the same on the main question involved. On the argument the plaintiffs raised a number-of questions oí considerable importance against the right of the defendant to insist upon his attachment lien. The trial court, in a very long and exhaustive opinion, considered all of said questions, and ruled in favor of the defendant, except upon one, which he considered decisive against him. His conclusions upon this branch of the case are as follows:</p> <p>“ The next claim made by the plaintiff is that the settlement and stipulation, on which judgment was entered in the-attachment action, dissolved the attachment.</p> <p>“The proposition that the attachment can only be enforced by a judgment resting solely on the cause or causes, of action on which the attachment is founded seems to be supported on principle and by authority, and not to be controverted by defendant’s counsel. If no cause of action exists in favor of the plaintiff when the attachment is levied, although judgment may be entered in the plaintiff’s favor on some other cause of action brought in by amendment, or without any cause of action in fact existing, the attachment, lien falls as against subsequent attaching creditors or purchasers. Barth v. Graf.’ 101 Wis. 36; John V. Farwell Go. v. Wright, 38 Neb. 445; Heidel v. Benedict, 61 Minn. 170. And the result is the same if a new cause of action or count is brought in by amendment or any other proceeding, and the new claim enters into and forms part of the amount for-which judgment is recovered. Freeman v. Creech, 112 Mass. 180. Some cases go so far as to hold that the mere amendment of the complaint by adding a new cause of action, or-the reference of the case to try the issue and all other-causes of action that either party may have against the other,, dissolves the attachment. But I think that reason and the-better authority requires that the recovery should be on-something in part not included in the original cause of action on which the attachment was issued. Seeley v. Brown, 14 Pick. 177-180; Tilton v. Gofield, 93 U. S. 163; Wood v. Benny, 7 Gray, 540; Fairfield v. Baldwin, 12 Pick. 395.. Where the record shows that a new count was added, bringing in a new cause of action or claim, or that the reference included other causes of action than the one on which the attachment was based, and the judgment does not show whether the new claim entered into and formed part of the amount recovered, the fact may be shown by parol. Freer-mam, v. Oreeeh, 112 Mass. 180. But in such case the burden of proof is upon the attaching creditor to show that nothing was added to the amount of his recovery by reason of the new claim or cause of action. Willis v. Grooker, 1 Pick. 206, note 2; Seeley v. Brown, 14 Pick. 177-180.</p> <p>“ The action of Esson against Ooleman, in which the lands in question were attached, was commenced in June, IS90. The complaint contained several causes of action, showing an. indebtedness of $17,104.57. Coleman’s answer admitted '$11,735.51 of the plaintiff’s claims, and set up counterclaims amounting to $17,079.47. Esson’s reply admitted these counterclaims to the amount of $6,719.38. This left $5,369.06 of items in the complaint and $10,360.09 of the items in the counterclaim disputed on the pleadings, exclusive of interest. If no part of the disputed items in the counterclaims were allowed, the largest judgment that the plaintiff (Esson) would be entitled to would be $10,385.19. If all his claims were allowed, and if none of the disputed items in the plaintiff’s complaint were allowed, and if all of Coleman’s counterclaims were allowed, Coleman would be entitled to judgment for $5,343.96.</p> <p>“In May, 1894, Esson brought another action against Coleman on several causes of action, all of which accrued after the commencement of his first action. The amount due him, exclusive of any interest, on the cause of action in this second action, was $16,604.38. Coleman by his answer admitted $778 of the items claimed, and denied the balance, $15,826.38, and set up the same claims as counterclaims as in the first action. It appeared from the allegations and admissions in the pleadings in the two actions, and the affidavits on which the plaintiffs therein obtained an order of reference in the first action, that during all the time the several claims and counterclaims of the respective parties set up in the first action accrued there was an open running account between the parties; the items of the plaintiff’s claim consisting of the items that he claimed credit for in that account, and items of the defendant’s counterclaims consisting' of the items in said account that Coleman claimed credit for. Hence, considering the two actions together, none of the items in Coleman’s counterclaim set up in both actions could be applied against any of Esson’s claims in the second action, unless there was found a balance due Coleman in the first action; and that balance only could be so applied. This must be so, first, because, there being a mutual running account between the parties, in the absence of any other application the law would offset the earliest items against each other, and leave due to either party at any time only the balance in his favor; second, the parties by their pleadings in the first case made a specific application of payments of their respective claims. And when the plaintiffs bought the lands from Coleman, subject to the lien of the attachments, that lien was only for the balance that might be found due Esson after allowing all due Coleman on his counterclaims. Coleman and Esson could not by agreement apply the counterclaim in reduction of the plaintiff’s claim in the second action, for the purpose of enlarging the lien of the attachment in the first action, to the prejudice of Coleman’s grantees. The status of the second action of Esson against Coleman,-on the pleadings, was this: Esson's claim was admitted to the amount of $778. He was entitled to as much more of the disputed $15,820.38 as his proofs might show him entitled to, without any offsets, unless it turned out in the first action that Esson's claims therein, so far as valid, had been fully paid and there was a balance due Coleman.”</p> <p>Here follows a statement as to the entry of the judgments and a copy of the stipulation. Continuing, the trial judge says :</p> <p>“ Does not the stipulation show conclusively on its face that all the claims and counterclaims in both actions were considered in the one settlement, and that one amount was arrived at for which the plaintiff should have judgment against Coleman ? How is it possible to say, from the stipulation, that only the claims made by Esson in the first action were considered in arriving at the amount for which he was to have judgment in that action, and that his claim in the second action for $16,604.38, admitted to the amount of $778, was not at all considered and nothing was allowed on account of it ? To reach any such conclusion we must disregard the plain language of the stipulation that all claims in both actions were compromised and settled together, and we must conclude that, after settling the claims involved in the first action 'by themselves, without considering those involved in the second action, the parties then-agreed as to the second-action, without considering anything-involved in the first, that the plaintiff might nave judgment in it for $278 less than was admitted by the pleadings to be due him; for it must be remembered, as above shown, that the counterclaim could cut no figure in the second action so long as anything was allowed the plaintiff in the first. If, in making the settlement, the parties had agreed that everything allowed the defendant (Coleman) on his counterclaims should be offset against the plaintiff’s-claim in the second action, the effect would have been the same as if the plaintiff’s claim in the second action had been put into the first action and formed part of the basis of. recovery. On the face of the stipulation there is no apparent reason for two judgments. Judgment • could as well have been entered in either action fo" the full amount of $16,000, and the other action dropped. It would have been less expensive to Esson, had he taken but one judgment. If judgment had been entered in the first action for the full amount at which all. the claims were compromised, viz. $16,000, there certainly could have been no question as to the claim in the second action entering into and forming part of the amount recovered. Is it not equally clear that it did so when the judgment in the second action was for less than admitted to.be due Esson on his claim in that action ? If the cases had been tried, and the respective items investigated, some allowed, some rejected, wholly or partially, and amount for which judgment was given thus arrived at, it could have been shown what claims were considered and what not. So, had the parties, in their attempt, to settle, gone through with the respective claims and agreed to reject some as having no foundation, it might-have been shown what entered into the compromise and what did not; but, in the absence of any evidence as to what took place back of the final agreement, we must conclude, as the stipulation says, that all claims in both actions were considered entered into the settlement.and compromise, and that-every claim made by the plaintiff was considered by Coleman in arriving at a compromise, and that, had more than half of the plaintiff’s claims been withdrawn, the amount agreed on would have been much less. When all claims are considered together, and a compromise arrived at, it seems impossible to say that any one claim was recovered for and another not. It is like submitting to the jury the evidence for and against a dozen claims, aggregating $30,000, and their bringing in a verdict for $10,000. It would not be possible to say what particular items they allowed, and if the original cause of action, on which an attachment was issued, had been for $10,000, and others had 'been added by amendment, and testimony tending to support all introduced, and counterclaims asserted, it would not be possible to enforce the attachment lien by a judgment entered on that verdict. And it would not help his case for the plaintiff in such action bo swear that more than $10,000 was due him on the original claim, when the answer denied it and its validity was one of the issues tried. The verdict in such case, after judgment, would be conclusive that no more was due on all the claims over and above offsets. So the stipulation between Esson and Coleman must be taken as conclusive as to the amount that Esson was entitled to recover judgment for on account of all his claims against Coleman. It is conclusive on Esson that he compromised on the basis that, whatever his claims amounted to, Coleman’s counterclaim amounted to enough to reduce the amount he was entitled to, to $16,000. If it appears conclusively from the record in the case that the claims asserted by Esson in his second action entered into the amount for which the claims in the first action were compromised, the fact cannot be contradicted by parol. If it is not clear from the record, parol evidence is admissible to show the fact. Esson was the only witness examined on the subject. He makes no attempt to show that the claims involved in the first action were settled and $15,500 agreed on as the amount due him, and those involved in the second suit settled at $500. He swears that his claim in the second suit was just as valid as his claim in the first suit, which, reduced to figures, means that, exclusive of interest, his valid claim in the first suit was $10,385.19, and in the second suit $16,604.38. He says, in effect, that all the claims and counterclaims were settled for $16,000; that the only reason wh}T he took judgment for $15,500 in one case and for $500 in the other was the value of the attachment lien in the respective cases. Aside from that, he could have had the amounts divided equally between the two judgments. Esson’s testimony throws no light upon the manner in which the amount ($16,000) was arrived at, any further than' it shows that he insists upon the validity of all his claims in both suits. In arriving at the compromise Coleman’s counterclaim must have figured largely, and, as everything conceded in the compromise on account of them should, as against the plaintiffs in this action, have gone in reduction of Esson’s claim in his first action against Coleman, the testimony tends to show that the judgment in that action was based in part upon the plaintiff’s claims in the second action.</p> <p>“ While Esson’s testimony does not show the negotiations leading up to the compromise and stipulation, his answer does. It alleges that in 1894 an attempt was made by Coleman to effect a settlement. In 1898 Coleman offered Esson in settlement lands in Tennessee, valued at $18,000 by Coleman. That offer was rejected, because of defective title in part, and this defendant (Esson) ‘offered to accept judgment for $16,000, to which said Coleman agreed, and authorized his attorneys to settle both actions accordingly, and thereupon the stipulation for judgment in the first action for $15,500, and in the second action for $500, was duly made.’ (fob 18) ‘That all his {Esson’s'] claims in both actions were compromised at $16,000, and the said judgment for $15,500 in the first action was taken only to obtain the lien of the attachment in that action to the amount of $15,500.’ (fol. 22) It appears, not only from the face of the stipulation, but also from Esson’s testimony and pleadings, that there was no separate settlement of the two actions; but his entire claim of $16,604.38 in the second action was included in and formed the principal basis of the recovery of $15,500 in the first action.</p> <p>“ The stipulation also shows that, if there were any other causes of action existing in Esson’s favor at the time against Coleman, they also entered into the settlement. The burden of proof is on the plaintiff to show the existence of another or other causes of action. They have done it to this extent only. It appears, from Esson’s complaint in his two actions against Coleman, that Coleman sold the timber only from some of the lands entered by him under their contract. This left the title to the land in Coleman after the timber was removed. The -land at the time, with the timber removed, was considered of but little, if any, value. In 1896, for a consideration of $2,500, Coleman quitclaimed to one Grunert what right, title, and interest he had in something ■over 20,000 acres of lands in several counties in the northeastern corner of the state, and all causes of action that he bad for timber from, or trespasses committed on, any of said lands, and about fifty city lots in the city of Oconto; and ■said deed included 120 acres of said lands from which Coleman had sold the timber. "When that sale was made, Esson became entitled to recover from Coleman further compen-sation for services relative to that 120 acres of land, determined by the amount that Coleman sold them for. We have ■no way of determining what, if anything, Coleman received for the 120 acres, or such title as he may have had to them at that time. If the whole $2,500 was'paid for the 20,000 ■acres, it would amount to but 12-J- cents per acre, or $15 for the 120 acres. If something is allowed for the city lots and ■cause of action, it would reduce the price per acre still lower. I do not think that any substantial cause of action has been ■.shown for lands sold. As to the lands unsold it does not appear what became of them. They were probably abandoned for taxes, as most of such lands were at that time. I think that Esson’s testimony shows that no cause of action other than those set up on the two actions were considered or entered into the settlement or judgments; but, because the causes of action on which Essorís second action against ■Coleman was based, all of which had no existence at the time the attachment was issued, were considered and entered into the settlement.and judgment in the first action, the attachment lien upon the lands was lost as against the plaintiffs, who were purchasers for full value.. t</p> <p>“ It follows, from this view of the case, that the plaintiff is entitled to the relief demanded in its complaint; and it is not necessary to consider several other questions which have been fully argued.”</p> <p>Judgments were duly entered for the plaintiffs, and the •defendant appeals from each judgment.</p> <p>The Oconto Company and Bellew, argued, among other things, that the first judgment being partly for claims in the second action the attachment in the first action was discharged. Bean v. Parker, 17 Mass. 591; Hill v. Hunnewell, 1 Pick. 192; Fair-field v. Baldwin, 12 Pick; 388; Freema/n v. Creech, 112 Mass. 180; Heidel v. Benedict, 61 Minn. 170; Farwell v. Wright, 38 Neb. 445; Whitney v. Brunette, 15 Wis. 61, 74; Laighton v. Lord, 29 N. H. 237; Page v. Jewett, 46 N. H. 441; Mooney v. Kmanagh, 4 Me. 277; Clark v. Foxcroft, 7 Me. 348; Bow-ley v. Bowley, 41 Me. 542, 546; Estlow v. Hanna, 75 Mich. 219; Mayer v. Zingre, 18 Neb. 458; Barth v. Craf, 101 Wis. 41. The principle is that an attachment can only be enforced for a judgment for the same claim the attachment was for. The affidavit required by sec. 2731, Stats. 1898, is jurisdictional. Hawes v. Clement, 64 Wis. 152, 155; Goodyear B. Co. v. Knapp, 61 Wis. 103. Without statute it is not amendable. Slaughter v. Bevans, 1 Pin. 348. The statute (sec. 2731a) permits amendment only to state facts existing at the time of making the original. Probably this reaches only irregularities. Goodyear B. Co. v. Knapp, 61 Wis. 103. At any rate it excludes power to amend to include any claims in the second action of Esson v. Coleman, for none of them existed until long after the making of the affidavit for attachment in the first action.</p> <p>Wright, argued, among other things, that the effect of including in the judgment new, different, and after-accruing causes of action was to release- the lien of the attachment. Drake, Attachment, •§§ 282-284; Whitney v. Brunette, 15 Wis. 74, and cases cited; Page v. Jewett, 46 N. H. 441; Clark v. Foxcroft, 7 Me. 348; Fairbanksv. Stanley, 18 Me. 296; Bicknell v. Trickey, 34 Me. 273, 283; Young v. Broadbent, 23 Iowa, 539; Heidel v. Benedict, 31 L. B. A. 422. Purchasers of property which is the subject of an action are bound by the judgment only so far as it is within the issues, and certainly a purchaser of attached property stands in no less favorable position. Hardy v. Mills, 35 Wis. 149; Brcmn v. Wis.^B. Co. 92 Wis. 251; Lathrop v. Knapp, 37 Wis. 307, 314; Campbell <o. Con-salus, 25 N. Y. 613; Ilymes v. Estey, 116 N. Y. 509; Stem-nard v. Hubbell, 123 N. Y. 529; Hailey v. Ano, 136 N. Y. 569; Whitney v. Marshall, 138 Incl. 472, and cases cited; 3 Smith, Lead. Cas. (9th ed.), 2096, and cases cited; Grunert v. Spalding, 104 Wis. 223, 226. If the judgment taken in such case is predicated upon other issues, or there is a doubt as to what question or issue the judgment passed on where there are new as well as old issues on which it might have passed, the property is not affected by the judgment. Pfennig v. Griffith, 29 Wis. 618; Yan Yalkenlnurgh v. Milwaukee, 43 Wis. 574; Bergeron v. Biohardott, 55 Wis. 132; Be Sollar v. Hanseome, 158 U. S. 221; Lea v. Lea, 99 Mass. 496; People ex rel. Bridgeman v. Hall, 104 N. Y. 176; Lewis v. Oeea/n N. de P. Co. 125 N. Y. 348; Legrand v. Pixey’s Adm’r, 83 Ya. 862.</p>

<p> 'Contraéis: Railway reorganization: Practical construction: Principal and surety: Breach of bond: Damages. </p> <p>1. A railway reorganization agreement required S., as a condition of the delivery to him of certain bonds.of the new company, to procure deeds to such company of all parts of the right of way the title to which was not perfect in the old company, together with releases of all claims existing or which might be asserted against the property of the old company. The agreement expressly mentioned, as covered by its provisions, certain claims of title to the right of way, and also included generally “ all other claims of title, by whomsoever made or held, that may exist or.be held to any portions of said right of way.” S. became a director and member of the executive committee of the new company, and knew of the commencement of proceedings for the condemnation of the disputed portions of the right of way, and was kept advised of the steps being taken in that regard, and approved of them. He also authorized the settlement of all but one of such claims. While such settlements were in progress the trustee holding the bonds foreclosed a lien upon them, and on the sale thereof they were bid in by S.,and in compliance with the judgment he executed a bond with sureties to secure the performance of the above-mentioned condition of the reorganization agreement. In an action on such bond to recover the amount expended by the obligee in making said settlements, held:</p> <p>(1) The doubt, if any, as to whether the reorganization agreement covered the claims thus settled was removed by the practical construction put upon it by S..</p> <p>(2) Such construction was binding upon the sureties as well as upon-S.</p> <p>(3) The claims settled being bona fide claims and covered by the agreement, the liability on the bond did not depend upon their being valid and enforceable at law.</p> <p>2. In such a case the plaintiff should recover the sum authorized by S. to be paid in settlement of the claims and, where settlements were not authorized, such sums as the evidence showed to be just, necessary, and proper in procuring settlements; also the necessary disbursements and reasonable attorney’s fees in the condemnation proceedings which were known to and acquiesced in by S. or which were necessary and proper to be instituted in order to adjust the claims.</p>

<p> Appeal: Questions considered: Incomplete judgment: Partnership: Settlement: Duress. </p> <p>1. Where the parties have agreed to the entry of an incomplete judgment, and there is no exception or assignment of error raising the-question of its sufficiency on appeal, the supreme court will not disturb the judgment on that ground alone.</p> <p>2. Evidence to the effect that plaintiff accused defendant, his copartner,. of appropriating firm property to his individual use, stating that he (plaintiff) had evidence enough to send defendant to state prison, and would push him through unless a settlement was made, and that defendant denied the charge but to prevent further trouble and secure the continuance of the firm business turned over 8200 cash, charged himself on the books of the firm with $250, and gave a note for $550, is held insufficient to show duress, where plaintiff was a young man of considerable business experience, and two weeks elapsed between the making of the first charge and the settlement, and there was nothing to prevent the defendant from consulting friends.</p> <p>3. The evidence in such a case (stated in the opinion) is held to show that the note was given to the partnership and not to the plaintiff personally.</p>

<p>Appeal from a judgment of the circuit court for Dodge county: James J. Dick, Circuit Judge.</p> <p>This is an action upon a bond executed by the defendant under his hand and seal August 27, 1883, wherein and whereby he agreed to pay to the plaintiff’s intestate, Augusta Etscheid, one year after the death of both of her parents, Gottlieb and Anna Wolter, the sum of $1,000; and this action is to recover the same. The defense is to the effect that after the death of Anna, and during the life of Gottlieb, the defendant fully complied with, satisfied, and paid the amount he was required to pay by the bond prior to November 1, 1889, and that on that day Gottlieb executed a satisfaction and release of the bond and the mortgage given to secure the same, and that such satisfaction and release was thereupon recorded.</p> <p>It appears from the record and is undisputed or found by the court, in effect, that August 27,1883, Gottlieb and Anna Wolter were both living; that they had two daughters, both of whom were then married,— one (Ida) was the wife of the defendant, and the other (Augusta) was the wife of the plaintiff; that Gottlieb was at that time possessed of considerable property, including a farm of 156 acres of land, admitted to be at that time of the value of $5,000; that on the day and year mentioned Gottlieb and his wife, Anna, executed under their hands and seals a warranty deed of that farm, reciting a consideration of $5,000, and delivered the same to the defendant, who recorded the same August 28, 1883; that at the time and place of executing such deed the defendant executed and delivered to Gottlieb the bond mentioned, wherein and whereby he was held and firmly bound unto Gottlieb and Anna in the sum of $5,000, to be paid to them “ or to their heirs, executors, administrators, and assigns, to which payment well and truly to be made ” he bound himself, his heirs, executors, administrators, and each and every of them, jointly and severally. The condition of the bond is as follows:</p> <p>“ The condition of this obligation is such that whereas, the .said Gottlieb "Wolter and Anna "Wolter, his wife, have this day conveyed to the said Charles Baker, by a warranty deed, duly executed and bearing even date herewith, the farm described in a certain mortgage of the last-mentioned date, ■duly executed by the said Charles Baker and Ida Baker, his wife, to the said Gottlieb Wolter and Anna Wolter, his wife, .as collateral security to these presents; and whereas, the said Charles Baker, for and in consideration of the said convey-mice so made by the said Gottlieb Wolter and Anna Wolter, ■his wife, to him for said premises, has covenanted and agreed to and with the said Gottlieb Wolter and Anna Wolter, his wife, to deliver to them yearly, as long as one of them lives, .six cords of soft wood, said wood to be delivered at the residence of said Gottlieb Wolter and Anna Wolter, provided they live not further than six miles from the farm they have this day conveyed to said Charles Baker; he has further .agreed to pay to them the sum of four thousand dollars, and semi-annually thereon interest at the rate of seven per cent, per annum; principal is to be paid as follows, to wit, two thousand dollars within five years from the date thereof, one thousand dollars within one year after the decease of both of the said Gottlieb Wolter and Anna Wolter, his wife, to their daughter, Augusta Eischeid, and the remaining one thousand dollars they shall retain themselves; and it is distinctly agreed .and understood that in case one of the said Gottlieb Wolter and Anna Wolter should die, the survivor shall be entitled to receive and receipt for the whole of the interest and principal; and it is further agreed that, in case they should remove further than six miles from said farm, the said Charles Baker is to pay them the value of such cord wood annually in money: Bow, therefore, the condition of the above obligation is such that if the said Charles Baker shall promptly and faithfully pay and deliver all that which he has so promised in consideration of the said conveya/nce to him, then and in such case this obligation and mortgage securing the same to be null and void; otherwise to be and remain in full force and virtue.”</p> <p>At the time of executing the bond the defendant and his wife gave back to Gottlieb and Anna Wolter a mortgage upon the farm, conditioned that the defendant should pay to Gottlieb and Anna the $1,000, “ according to the condition of the bond.”</p> <p>The defendant testified that at the time of executing the bond and mortgage he also gave two notes of $500 each to the plaintiff, amounting to $1,000, to make “ up the $5,000 consideration of the farm; ” that he paid one of those notes to the plaintiff in the fall of T883, and the other in the winter or spring of 1884. February 8, 1884, Anna Wolter died. November 1,1889, Gottlieb, who ivas at the time living with the defendant and his daughter Ida, executed, under his hand and seal, a written instrument, whereby he acknowledged satisfaction and payment in full of the mortgage, together with the bond, giving the date of the record of the bond and mortgage, and stating that he thereby released the same, and all his right, title, and interest in and to the premises therein described, and thereby authorized the register to enter satisfaction of record. November 10,1896, the plaintiff’s wife, Augusta, died intestate, and the plaintiff was subsequently appointed administrator of her estate. April 21, 1897, Gottlieb Wolter died.</p> <p>At the close of the trial the court, in addition to several of the facts stated, found that, in addition to the provisions contained in the bond for the benefit of Gottlieb and Anna personally, the defendant, among other things, promised, agreed, and bound himself to pay to Augusta (since deceased) the sum of $1,000 within one year after the death of Gott-lieb and Anna; that said $1,000 was intended by Gottlieb as an absolute and irrevocable gift in prcesenti to Augusta, and that the same was during the life of Gottlieb, and before any attempt to revoke the same, duly accepted by Augusta; that said SI,000 so provided for Augusta was in fact an absolute and irrevocable gift in prcesenti to - Augusta, duly delivered and accepted, and could not be revoked nor discharged nor satisfied by Gottlieb without the consent of Augusta; that no part of the $1,000 had ever been paid to Augusta or her personal representative; that Augusta had no knowledge of, and did not consent to, such satisfaction and discharge of the bond and mortgage; that if, by such release, Gottlieb intended to satisfy and discharge the defendant from paying the $1,000 to Augusta as he had so agreed, then the same was illegal and void, and of no effect as to her interest therein; that the plaintiff was entitled to recover as such administrator $1,000, with interest thereon at six per cent, per annum from April 21, 1898, amounting in all to $1,164. And as conclusions of law the court found that the plaintiff, as such administrator, was entitled to judgment against the defendant for that amount, with costs, and ordered judgment accordingly.</p> <p>From the judgment so entered the defendant appeals.</p> <p>They contended, inter alia, that Augusta Etscheid never had the right to sue upon this bond and never could have had. The conditions were incidents, and even the obligees could not have sued upon any of the conditions as conditions, but must have sued upon the obligation to pay the penal sum, $5,000. Oa/rey v. MoKey, 9 L. E. A. 114; Fcmii v. Tesson, 1 Black, 309; Farrar v. Ü. 8. 5 Pet. 373; Turlc v. Ridge, 41 hf. T. 201; Merrill v. Oreen, 55 E. Y. 270; Simsonv. Brown, 68 if. Y. 355; Parker v. Jeffery, 26 Oreg. 186. This bond does not come under that class of cases where a person contracts with a second to pay money to the third, upon which agreement the third may bring suit.</p> <p>To the point that the delivery was complete, they cited Crooh v. Eirst Eat. Bank, S3 Wis. 31, 39; Love v. Francis, 63 Mich. 181; Copeland v. Summers, 188 Ind. 219;, Holmes v. McDonald, 119 Mich. 563; Henderson v. McDorv-ald, 84 Ind. 149; 14 Am. & Eng. Ency. of Law (2d ed.), 1028; 3 Pomeroy, Eq. Jur. (2d ed.), § 1149, note 1, p. 1721;. Pruitt v. Pruitt, 91 Ind. 595.</p>

<p>(1, 2) Court and jury: Questions of fact, (3-7) Fire insurance: Proofs of loss: False swearing: Ownership, quantity, and value of property: Classification.</p> <p>1. If there is a conflict in the credible evidence upon a question of fact, so that reasonable minds might differ as to the inference to be drawn therefrom, the question is for the jury and the court should not assume to answer it, either upon motion for nonsuit or direction of verdict, or by substituting another answer after theverdict is returned.</p> <p>2. But upon a morion to set aside the verdict and for a new trial the court may consider whether there is such an overwhelming preponderance of evidence against the verdict that it ought not to stand; and its decision on that point will not be disturbed on appeal unless clearly wrong.</p> <p>3. In order to render a standard policy of fire insurance void because of “false swearing by the assured touching some matter relating to the insurance or the subject thereof,” the false swearing must have been knowingly and wilfully done. It is not enough that it occurs through mistake, carelessness, or inadvertence, or even in unreasonable reliance on information dei'ived from others.</p> <p>4. Proofs of loss under a fire insurance policy were made on printed forms furnished by the insurer for general use and contained no declaration that the assured had personal knowledge as to the facts stated therein. The form evidently contemplated declarations by the assured as to the acts of others, and the policy only required that the proofs should give the knowledge and belief of the assured. Held, sufficient to warrant the assured in assuming that the information called for might be given upon information and belief if she had not knowledge.</p> <p>5. Wilful fraud cannot, as matter of law, be attributed to an illiterate farmer’s wife because, in proofs of loss, she .scheduled second-hand goods with their full original cost, where the policy might fairly be understood to demand this, by requiring schedules to be made in which should be inserted “ the cost of each article.”</p> <p>6. In an action on a policy of fire insurance the evidence (discussed in the opinion) is held sufficient to sustain findings of the special verdict that in making proofs of loss the assured did not wilfully s-wear falsely as to ownership of portions of the destroyed property, as to the quantity of articles, such as family supplies and hay and grain on the farm, on hand at the time of the Are, or as to values.</p> <p>7. Under a policy insuring under separate headings “ camp equipage ” and “ wagons, sleighs, and harnesses in barns,’- the assured might recover under the latter classification for the loss of a wagon while in a barn, although it may have been used in connection with a lumber camp at other times; and a classification of the wagon as camp equipage in an inventory made after the policy was written and without reference to it, would not be significant upon the intention of the parties in making the contract of insurance.</p>

D. HastiNgs, Jr., Circuit Judge. Action to recoTer the value of a horse shipped by plaintiff over defendant’s road and so badly injured in the transportation as to render it useless and of no value to plaintiff. The jury found all the issues in plaintiff’s favor and assessed the value of the horse at $225, for which sum, with interest, his counsel moved for judgment.

D. Hastings, Je., Circuit Judge. Action to recover, on the ground of negligence, for a horse, so injured that he died, and for injuries to other horses owned by plaintiff, while they were in the possession of defendant as a common carrier. The jury found the issues of fact in plaintiff’s favor, entitling him to recover, and assessed the value of the horse that died at $200 and the damages to the other horses at $60.

<p> Constitutional law: Construction of statutes: Creating new county,: Assembly districts: Location of county seat. </p> <p>1. If there is a reasonable construction of a statute which will uphold it and at the same time preserve the constitution from infraction, the court is bound to adopt it.</p> <p>2. Sec. 4, art. IV, Const, (providing that “assembly districts shall be bounded by county, precinct, town or ward lines ”), is not violated by an act creating a new county out of a portion of the territory of one of the assembly districts in an old county, but providing that it shall form a part of the original district until otherwise apportioned according to law. For the purpose of electing an assemblyman the new county, in such a case, may be treated as nonexisting.</p> <p>3. In an act creating a new county a provision locating the county seat at a particular place, even though void, does not affect the remainder of the act, but the authorities of the county may locate the county seat under the general statutes.</p>

Parish, Circuit Judge. This is an action to recover $147.15 upon an account for goods alleged to have been sold by the plaintiffs’ firm to the defendant between May 15 and December 27, 1899.

<p>Master and servant: Personal injury: Defective appliance: Promise to repair: Protest against continued use: Court and jury: Imminent danger: Contributory negligence: “ Ordinary care: ” Instructions to jury: Evidence: Opinion as to conduct: Damages.</p> <p>1. In order that a servant may, without assuming the risk of injury, temporarily continue to work with a defective and dangerous appliance in reliance upon a promise by the master to repair, there need not he a direct threat on his part to quit work unless the repairs are made, but the master must be given to understand that the servant protests and objects to continued exposure to the danger.</p> <p>2. Plaintiff, an experienced railroad yard foreman, entered in a book which was the ordinary medium of communication between himself and his immediate’superior, the yard master, a notification of a defect in the footboard at the back end of the switch engine. The same afternoon both the yard master and the plaintiff called the defect to the attention of the roundhouse foreman, an employee having oharge of repairs, over whom neither had any control. The roundhouse foreman remarked that the step was not very bad, and plaintiff replied, “It is bad enough, and I want it fixed; I consider it unsafe.” When the engine was again brought out for use that evening plaintiff called the attention of the yard master to the failure to repair the step, and the latter replied, “ Use it to-night, and I will see that it is fixed to-morrow.” Held, sufficient to take to the jury the question whether plaintiff protested and objected to further use of the engine.</p> <p>5. A servant is not, as amatteroflaw, guilty of contributory negligence in continuing-to work temporarily with a known defective appliance, after a promise to repair, if an ordinarily prudent person, under like circumstances, might reasonably believe and expect that by the exercise of extra care and caution he could avoid and avert the threatened peril.</p> <p>4. An erroneous instruction on a given subject is not cured by a correct statement of the law elsewhere in the charge.</p> <p>6. The footboard, ten inches wide, at the back of a switch engine, had become bent at one corner so that the outer edge was from two to three inches lower than the inner edge, but the engine was provided with a hand hold by means of which one could protect himself from falling, and it had been used in that condition by the switching crew at least two nights before the accident. Held, that the peril therefrom to the yard foreman was not so imminent, so constant, and so unavoidable but that a reasonably prudent man might, without being guilty of negligence as matter of law, continue to use the engine pending a promise to repair.</p> <p>6. Ordinary care is the care ordinarily exercised by the great mass of mankind, or the ordinarily prudent person, under the same or similar circumstances, and an omission from an instruction to the jury of the qualification “under the same or similar circumstances,” or “ under like circumstances,” is error.</p> <p>1. The plaintiff in an action for personal injuries is entitled to recover damages for such suffering and impairment of abilities as he is reasonably certain to endure in the future as the result of his injuries; andan instruction limiting his right to recover to such “as he will be compelled to undergo,” and “will actually sustain,” is not prejudicial to defendant.</p> <p>8. The plaintiff in an action for personal injuries caused by a defective appliance may properly be allowed to testify that he continued to work in reliance upon a promise to repair, but not as to whether he would so have continued had the promise not been given.</p> <p>9. In an action by an experienced railroad man earning §180 per month to recover for the loss of a leg below the knee and other injuries, an award of $10,000 damages is held not excessive.</p>

<p>Appeal from an order of the circuit court for Ashland county: W. C. Silverthorn, Judge.</p>

<p> Taxation: Review of county apportionment: Commission: Powers: Right of majority to act. </p> <p>1. See. 1077a, Stats. 1898 (providing that, upon the application of any city, village, or town aggrieved by the action or decision, as to either real or personal property or both, of the county board in making the county apportionment under sec. 1073, the circuit judge shall appoint a commission to review such action or decision), gives to such commission power to review all the valuations in the county, either of real or personal property or' both, as the application may specify, and to raise or lower the valuation of any town so far as necessary to" produce a just relation between all such valuations in the county, even though the valuation of the town which applies for the commission may not be changed.</p> <p>2. Subd. 3, sec. 4971, Stats. 1898 (providing that “ all words purporting to give a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of such officers or persons, unless it shall be otherwise expressly declared in the law giving the authority ”), applies to a commission appointed under sec. 1077a to review a county apportionment of taxes.</p>

<p>Appeal from, a judgment of the circuit court for Lincoln county: W. C. Silverthorn, Circuit Judge.</p> <p>Action to recover compensation for personal injuries alleged to have been caused by the insufficient condition of a sidewalk. It was alleged in the complaint that the sidewalk where the accident occurred was out of repair, insufficient, and dangerous in that in the center thereof there was a slippery, uneven ridge of snow about twelve inches wide and four inches high at the center and sloping to the sides. The injury was said by plaintiff to have occurred in this way: As she was walking in the pathway on the outer side of the walk, nearer the center thereof than the outer edge, she stepped upon the side of the ridge of ice, and her foot slipped, causing her to fall and resulting in the injuries complained of. The injuries alleged were a fracture of plaintiff’s right leg, a strain of her right thigh and knee, and other injuries.</p> <p>The issues submitted to the jury are indicated in the following verdict:</p> <p>“1. Was the plaintiff injured on February 23, 1900, by a fall on the sidewalk on the west side of Prospect street, in the city of Merrill, at the point alleged in the complaint ? A. Yes.</p> <p>“ 2. If you answer question Eo. 1 ‘ Yes,’ then had ice and snow accumulated on the said sidewalk, at the time and place of the accident, in a rough, uneven, and slippery ridge so as to make the sidewalk at said point and time insufficient or out of repair so as to render it unsafe and dangerous for persons traveling thereon in the use of ordinary care? A. Yes.</p> <p>“ 3. If you answer question Eo. 2 ‘ Yes,’ had such condition of said walk existed for a period of three weeks or more prior to the time of the accident? A. Yes.</p> <p>“4. If you answer question Eo. 2 ‘Yes,’ then had such defective condition of said walk existed for such time that the city authorities, in the exercise of ordinary care, ought to have known and remedied it before the accident ? A. Yes.</p> <p>“5. Was said condition of said walk the proximate cause of the injury to the plaintiff. A. Yes.</p> <p>“ 6. Was the plaintiff guilty of any want of ordinary care which contributed to her injury ? A. Eo.</p> <p>“7. If the court should he of the opinion on this special Terdict that the plaintiff should recover, at what amount do you fix her damages ? A. $1,000.”</p> <p>Judgment was rendered for plaintiff for the amount of her damages as found by the special verdict, and defendant appealed.</p>

0. Silverthoen, Circuit Judge. On January 5,1900, judgment was entered for the defendants discharging the lien of plaintiff’s mortgage. Ho exceptions were filed to the findings and no steps were taken toward settling a bill of exceptions until January 12, 1901, when the plaintiff obtained an order to show cause why plaintiff should not be permitted to file exceptions, and why the time for settling a bill of exceptions should not be extended.

Pbohibitiost to ¡S. E. Pollard, a justice of the peace. This is an application for a writ of prohibition to be issued out of this court, preventing the respondent, as justice of the peace, from the commission of further acts in a certain prosecution pending before him, on the ground that such acts are in excess of his jurisdiction.

Suit by plaintiff to recover his fees as municipal judge of the city of Eau Claire for services rendered in so-called “tramp cases” from November 1, 1895, to the date of his bill, February 27,1896. Seven hundred and nineteen cases are charged, for which in the bill the sum of $1.90 is set against 715, and the others are charged at $2.15 and $2.65. No question seems to be raised that fees at the statutory rate would equal the amounts charged.

<p>Appeal from an. order of the circuit court for Eau Claire county: James O’Neill, Circuit Judge.</p> <p>This is a motion on the part of the appellant for an order declaring a certain judgment satisfied as against the appellant, and perpetually restraining the collection thereof. It appears that the original judgment in this action was rendered in favor of the plaintiff and against the defendants Hunner, Gilman, and Moon, March 5, 1885, upon a promissory note given by the firm of Hunner, Gilman & Co. to the plaintiff, Phillips, March 1, 1883; that said judgment was not paid by any of the defendants, and that May 3, 1899, execution was issued thereon and levied upon certain property of the appellant, Rwmer. Thereupon Hmvner made this motion, based upon an affidavit stating, in substance,, that the judgment was one which, as between the defendants, was the debt of the defendant Moon, and that after the judgment was obtained an agreement was made between himself and the plaintiff by which the judgment was to be satisfied, as against the appellant, in consideration of the appellant’s releasing the plaintiff from a certain agreement, the plaintiff at the same time paying to the appellant $200 in cash, and agreeing to assign to the appellant a one-half interest in the judgment and to collect said judgment from the defendant Moon. Upon this affidavit, together with the affidavit of one Rowe, an order to show cause was issued by the court why the execution and the levy thereunder should not be set aside, and why the judgment should not be satisfied and discharged as against the defendant Hunner. This motion was opposed by affidavits on the part of the plaintiff denying the statements made in the affidavits of Hunner and Rowe.' One McCaslin also made an affidavit in support of the statements of the defendant Hummer, which was used upon the hearing.</p> <p>When the motion came on to be heard, the court declined to decide the same upon the affidavits, but referred two issues to a referee for trial and determination. These issues were as follows:</p> <p>“First. Was there, at or about the time the plaintiff, Bentley 8. Phillips, sold and disposed of his interests in the firm of Phillips, Hunner & Moon, on or about February 17,1883, any written agreement entered into by and between the said Phillips and the defendant Hunner to the effect that said Phillips should make good to the defendant Hunner one half of the loss which said defendant Hunner would suffer by reason of accounts which had theretofore been run, and which were a portion of the assets of said firm, proving uncollectible ?</p> <p>“ Second. Was there any agreement made by and between the parties Phillips and Hunner, after the judgment was rendered, that Hunner should be discharged from all liability on said judgment, and that said judgment should be satisfied as to him.”</p> <p>The referee took a large amount of testimony upon both sides, and made a report answering both questions in the negative and against the appellant. Counter motions being made to confirm and to modify the report of the referee, the court made an order confirming the said report, with costs, and from this order Hunner appeals.</p>

<p>Appeal from, a judgment of the circuit court for Eau •Claire county: James O’Neill, Circuit Judge.</p> <p>The action was originally brought in justice’s court in Chippewa county to recover $64.25, by James Grate and an associate, as the firm of Taylor & Crate. Before final judgment in the circuit court hereafter mentioned, Mr. Taylor died and the cause was duly continued in the name of Mr. Orate as surviving partner. The place of residence of •defendant was in Eau Claire county. He appeared in .justice’s court and answered. Judgment- was rendered against him for the amount claimed with costs. Such proceedings were thereafter duly taken that the cause was removed upon defendant’s appeal to the circuit court for Ohippewa county,, and transferred from such court to the circuit court for Eau. Claire county, where a complaint was filed showing that, plaintiff’s claim was based upon a settled account. The-defendant answered by general denial and set up several counterclaims, and issue was taken upon the new matter by a reply thereto. The issues, as made in the manner indicated, were, by consent, referred to a referee to hear, try,, and determine.</p> <p>Upon the hearing before the referee it developed that the-adjudication of the rights of the parties and the establishment of plaintiff’s cause of action required the examination of an account far exceeding $500. The result of the trial was a conclusion that there was due to the defendant on the-account $53.01 and a large amount on counterclaims, making in all $735.26. On the motion to confirm the referee’s-report, the attention of the court was called to a voluntary supplemental return, so called, of the justice, which was-, upon the files of the court, such return being in the form of a certificate of the justice that the action, as .tried before-him, was founded on an account, that the amount thereof, on the part of the plaintiff, established to his satisfaction,, exceeded $500, and that the amount for which judgment was rendered was arrived at by allowing to the defendant numerous credits established in his favor. The so-called return was made nearly a year after the trial in justice’s, court. Upon motion of counsel for plaintiff the appeal was-dismissed for want of jurisdiction.</p> <p>A bill of exceptions was settled, into which was incorporated the justice’s docket entries, the minutes of evidence taken-, by him, and the supplemental return. No proof was made before the circuit court as to what was established in the-justice’s court other than by the supplemental return, the minutes of evidence sent up with the return proper, and some affidavits presented on the motion to dismiss. No-written pleadings were filed in justice’s court, and no statement was made by the justice in the docket of the nature of the complaint or any other pleading, or of the plaintiff’s claim. The docket recited the following: “ The court, after hearing the proofs, finds for the plaintiff in the sum of $64.25.”</p> <p>The defendant appealed from the judgment of dismissal.</p>

<p> Ejectment: Judgment, upon whom binding: Restraining execution. </p> <p>Prior to the commencement of an action of ejectment the land had been conveyed to persons not parties to the action and they were in the actual occupancy of the land, though the conveyance was not recorded until after the notice of Ms pendens was filed. Thereafter they contracted to sell the land to one B., not a party to the action, and he went into actual possession and so continued until judgment in the ejectment suit, which was rendered prior to the enactment of oh. 152, Laws of 1901. Held, that such judgment was not binding upon B.’s grantors nor upon B. himself, and that upon his application in the action its enforcement, as against him, by writ of possession should be restrained.</p>

This is an action upon two promissory notes, for $50 each, given by the defendants on May 31 and June 8,1894, respectively, and payable four months after date to the Jackson County Bank.

<p> Writ of error: What reviewdble: Who may sue out: Ejectment: Parties: Rights of mortgagee. </p> <p>1. A writ of error to review a judgment does not bring up for review orders made after judgment.</p> <p>2. To entitle a person to sue out a writ of error and be heard thereon he must be either a party or privy to the record or directly injured by the judgment; and if he is not a party by name his interest should be'made to appear by petition or affidavit upon the application for the writ.</p> <p>8. Where a mortgage was recorded before the commencement of an action of ejectment involving the mortgaged lands, to which the mortgagee was not made a party, the judgment does not in any way affect or impair his rights as mortgagee.</p>

<p><1) Appealable orders: Attachment. (2-4) Contracts: Pleading: Inconsistent defenses: Trusts: Personal liability of undisclosed beneficiary: Evidence.</p> <p>1. An order granting a nonsuit in an action wherein lands were attached does not have the effect to “ set aside or dismiss a writ of attachment for irregularity,” and is therefore not appealable under subd. 3, sec. 8069, Stats. 1898.</p> <p>2. In an action to recover the first payment upon the purchase price of an interest in land the answer consisted of a general denial and an allegation that defendant had fully paid plaintiff all just, equi- ■ table, or legal claims or demands against him growing out of any matters mentioned in the complaint. Held, that the two defenses were not inconsistent, and that the answer as a whole did not admit the purchase of the land.</p> <p>9. In such, a case the evidence showed that both the contract of sale and the deed of the land ran to a third person as trustee, none of the beneficiaries being named, and that the trustee subsequently executed a declaration of trust in their favor. Defendant was one of such beneficiaries. Held, that he was not personally liable to the vendor upon the contract with the trustee, but that the latter held the legal title and was personally bound.</p> <p>4 The only cause of action pleaded being upon the contract for the purchase of the lands, evidence that when the first payment on the lands became due the trustee gave plaintiff drafts drawn by defendant on a'third person, which were not paid but were returned to defendant, and that he afterwards agreed to pay. the same as soon as matters between himself and the trustee had been adjusted, was inadmissible as establishing a contract relation between the parties.</p>

<p> Landlord and tenant: Injury to inheritance. </p> <p>By direction of a tenant, whose lease from plaintiff had five years yet to run, defendant drove upon the leased premises for the purpose of delivering coal, and in so doing broke a plank curbing and board sidewalk and cut furrows in the lawn. The tenant was bound by the lease to “properly use the premises and keep the same in proper repair and condition.” Held, that defendant’s acts must be regarded as the acts of the tenant, for which the latter would be liable if they constituted a breach of said covenant, but that .the injury was not of such a substantial and permanent character as to be an injury to the inheritance for which plaintiff might maintain an action under sec. 2198, Stats. 1898.</p>

<p>Certiorari: Return: Waiver: Taxation: Board of review: Changing assessor's valuation: Oral evidence necessary.</p> <p>1. On certiorari the court acts upon.the record of the inferior court or tribunal whose action it is sought to review, and therefore should not pass judgment until the record is brought before it by a return.</p> <p>2. The city clerk, being merely a nominal party to an action of certio-rari to review proceedings of the board of review, cannot waive the making of a return or stipulate that the statements of the relation or writ may be taken as true.</p> <p>8. Where a person makes'no sworn statement to an assessor as to the value of his personal property, the value pldced thereon by the assessor is prima facie correct and cannot be changed by the board of review except upon evidence.</p> <p>4. Under sec. 1061, Stats. 1898, the board of review can act only upon oral evidence in changing valuations, and cannot consider ex parte affidavits.</p>

<p> Promissory note forming part of contract: Separation: Fraud: Pleading: Evidence. </p> <p>1. In an action upon a promissory note, by an indorsee for value before due, it appeared that the note had been given in payment for a membership in a collection agency and when signed was part of a sheet containing the contract between the maker and the collection agency, in such form that the contract and note could be readily separated. The contract provided that the agency would refund the amount of the note in a certain contingency, and the certificate of membership recited the giving of the note as a payment in prcesenti. There was no proof that ,the maker’s signature was obtained by any false representations as to the nature or contents of the instruments. Held, that the payee rightfully separated the note from the contract and used it as a negotiable instrument.</p> <p>2. Where the answer in such a case did not allege fraud the trial court properly refused to permit defendant to testify as to whether he intended to execute a note and whether he read the papers before signing them.</p> <p>3. In pleading fraud it must be made to appear from the facts alleged, independent of mere conclusions, that if the allegations are true a fraud has been committed.</p>

<p>Error to review a judgment of tbe circuit court for Dunn county: E. W. Helms, Circuit Judge.</p> <p>The writ issued to review a conviction of the offense of fornication. The information contained two counts, one for rape and one for fornication with a sane female of previous chaste character under the age of eighteen years. Upon the trial the charge of rape was withdrawn by the district attorney by oral notice to the court and its permission; but it was not formally stricken from the information, though the court submitted to the jury only the charge of fornication. The evidence is undisputed that the age of thegirl, at the time the offense was alleged to have been committed, was fifteen years, and that the act of criminal intimacy charged took place or else the accused was guilty of the offense of rape. The only evidence as to the previous chaste character of the •girl was given by her. The jury found a general verdict of guilty. Exceptions were duly alleged on behalf of the accused, and certain questions embodying such exceptions were duly certified to this court to be answered, one of such questions being whether it was permissible to allow a conviction of the offense of which the accused was said to be guilty, on the uncorroborated evidence of his partner in crime. The questions were answered adversely to the accused. No formal order was thereupon entered in this court remanding the record to the circuit court or for further proceedings in such court. Nevertheless, the clerk of this court, according to the usual practice, returned the record with a copy of the opinion, whereupon, against objection by counsel for the accused, he was sentenced by the circuit court, the judgment being that he be confined for an indeterminate period in the state reformatory.</p>

<p>Criminal law and practice: Bomieide: Post mortem examination: Exhumation by public official: Evidence: Instructions to jury: Exceptions: Manslaughter: Killing while perpetrating misdemeanor: Intent: Remarks of counsel: Sentence: Discretion.</p> <p>1. A person accused of murder is not entitled to notice that an examination of the remains of the deceased will be made, some months after death, on behalf of the prosecution.</p> <p>3. Sec. 4593, Stats. 1898 (providing a punishment for the person, not lawfully authorized, who disinters a human body), does not apply to exhumations made by public officials with a view of ascertaining whether a crime had been committed.</p> <p>3. In a prosecution for murder, the fact that several months elapsed between the commission of the crime and an examination of the body, affects rather the weight of the testimony of the person making the examination than its competency.</p> <p>4, Where many paragraphs in. a charge to the jury are not subject to criticism, an exception to “ each and every portion of the charge as given,” is too general and will be disregarded.</p> <p>6. The evidence (stated in the opinion) is held sufficient to sustain a conviction of manslaughter in the first degree under sec. 4346, Stats. 1898 (the killing of a person without design, while engaged in the perpetration of, or in attempting to perpetrate, a misdemeanor, in cases where suoh killing would have been murder at the common law).</p> <p>6. Where a person was killed during an affray, a participant in the affray who acted with others in committing an assault and battery upon the deceased may be guilty of manslaughter in the 'first degree as defined by sec. 4346, Stats. 1898, even though he did not strike the fatal blow.</p> <p>7. In such a case a statement of the attorney for the prosecution, in opening the case, that it would be shown that the deceased came to his death by “external violence inflicted by the defendant,” is held not to have prejudiced the defendant, where his attorney was not misled thereby into believing that the prosecution elected to rely upon that cause of death.</p> <p>8. In a prosecution for murder the intent to kill is not to be judged alone from the act causing the death, but must be gathered from all the surrounding circumstances. Thus, the fact that one person stabs another in a vital part of the body does not conclusively show an intent to kill.</p> <p>9. Statements by counsel for the state when the accused was brought up for sentence that the past, record of the accused was bad and that he should have a severe sentence, which were not shown to have been false or to have influenced the trial judge in pronouncing sentence, are held not to have been prejudicial, the quantum of punishment, within the statute, being particularly within the province of the trial judge.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: N. G. Siebeoeer, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Outa-gamie county: JohN GoodlaND, Circuit Judge.</p> <p>This action was commenced in August, 1896, to recoven the value of the use of plaintiff’s water power wrongfully appropriated by the defendant. The complaint sets out plaintiff’s ownership of the water power ou the Fox river furnished by the upper dam at Kaukauna; that on May 9, 1896, the defendant “ wrongfully entered into possession of, and wrongfully took and appropriated ” to its use, one half of said hydraulic power, stating the manner in which it. was' done; that an action was commenced by plaintiff against defendant to determine -the title to said power and to restrain defendant from its use, and on May 9, 1888, a judgment was duly entered by the circuit court for Outagamie county that the plaintiff was the owner of said power, which judgment was duly affirmed by this court and the United States supreme court; that since May 9,1888, and until May 9, 1895, the defendant and its tenants “ wrongfully continued to draw about one half of the Fox river from said pond,” and has thereby “ wrongfully appropriated to its own use the one-half of the hydraulic power furnished by said dam,” to the damage of plaintiff as therein set forth; that defendant had wrongfully availed itself of the use of about 1,500 horse power of water power, of the annual value of $5 per horse power.</p> <p>The answer alleged the building of the dam by the United States; the defendant’s ownership of land on the south side of the river, above and below the dam; denies, with some qualifications, plaintiff’s ownership of land on the north side of the river; admits the former litigation and judgment; but denies the plaintiff’s ownership or possession of “ any valuable water power created by said government dam, for the reason that it had no land, headrace, canal, or other in-strumentalities for utilizing the power of the water as it fell from the crest to the foot of said dam; ” alleges the building by defendant of a canal at large expense to utilize the water'power, through which canal it drew water, used it for power, and discharged it below said dam, during a part of the time mentioned in the complaint, and that said power, “ independent of said canal, Avould have been of no practical value; that . . . the only right of the plaintiff which was involved was the valueless right to have the water flow over said dam; ” and denied that defendant had appropriated or used any valuable Avater power of the plaintiff, as alleged in the complaint. The answer then set up the statute of limitations as against any water used prior to August 1, 1890.</p> <p>The case was tried by the court without a jury. Many of the facts were stipulated. The stipulation covered the circumstances of building of the dam, and its location, its height, the right of plaintiff to the Avater power as determined by the judgments of this court and of the United States supreme court, the riparian rights of defendant, the building of the canal by defendant, certain leases of the right to draAv water from said canal by defendant to its tenants, and the prices per horse power or rentals reserved thereby. It also provided for use in evidence of the judgments referred to in the complaint. Plaintiff’s other evidence shoAved its title and right to the dam and power created thereby, subject to the rights of navigation, the flow of the river, the rental value of water per horse power, and that the apportionment between use of canal and lot and water was at the rate of one fifth to the former and four fifths to the latter. It was also shown that a canal could be built at a cost of $12,000 to $15,000 of sufficient capacity to use 70,000 cubic feet of water per minute, and that the ■value of land on the south side of the river upon which to build a canal of that capacity, including sites for mills, would not exceed $10,000. It was verbally stipulated that the tenants of defendant drew from the pond under their leases 60,385 cubic feet of water per minute, which, on a head of eight feet, furnished 914 horse power.</p> <p>The court made the following findings:</p> <p>“(1) That at Kaukauna, Wisconsin, there is a fall or rapids in the Eox river, near the head of which a dam was constructed more than twenty years ago, under authority of the state of Wisconsin, for tide purpose of improving the navigation of the Eox river, extending from lot five (5) of section twenty-two (22) south of the river to fractional section twenty-four (24) in town twenty-one (21) north, of range eighteen (18) east, north of the river, and that more than twenty years since there was constructed under the authority of said state, for slack-water navigation, a canal on the north side of said river, leading from the pond held by said dam to slack water below the rapids.</p> <p>“ (2) That said dam obstructed the flow of the water of said Fox river, and raised the same about eight feet at the south end of said dam, and about nine feet at the north end of said dam.</p> <p>“(3) That for more than twenty years last past plaintiff has been and is the owner of the water power incidentally created by said dam, with the right to withdraw from the pond made by said dam all of the surplus water not necessary for navigation, either, through the canal or directly from the pond, subject to any and all rights of the United States with reference thereto.</p> <p>“ (4) That defendant is now, and at all times since 1883 has been, the owner of all the land bordering on the south bank of Eox river from a point above the upstream end of its canal hereinafter mentioned, to slack water below the rapids in said river at said Eaulcauna, subject to the right of the plaintiff and the United States to land and maintain the end of said dam thereon.</p> <p>“ (5) That in or about the year 1882 defendant, being advised by its attorneys, and in good faith believing, that it owned the undivided one-half of the water power of said river, constructed on its own land, at a cost of about one hundred and fourteen thousand dollars, an hydraulic canal on the south side of said river, extending from the pond created by said dam, around the south end’thereof, to a point about 2,400 feet below said dam, and divided a part of its land between said canal and said river into certain mill lots.</p> <p>“ (6) That from May 9, 1888, to May 13, 1895, the defendant drew through its said canal on the south side of said Eox river and from the pond created by said dam a substantial part of the flow of said river, not exceeding two fifths of the whole flow of said river in the ordinary low-water stage, and returned the same into said river below said dam.</p> <p>“ (7) That in defendant’s said drawing of said water from said pond through its said canal, it did not in any way trespass upon the lands or property of the plaintiff.</p> <p>“(8) That said plaintiff did not suffer any actual pecuniary loss by reason of said drawing of said water by said defendant.</p> <p>“And the court finds as conclusions pf law:</p> <p>“ (1) That the said drawing of said water by said defendant did no legal injury to the said plaintiff.</p> <p>“ (2) That defendant is entitled to a judgment dismissing the complaint herein upon the merits with costs to be taxed.</p> <p>“ Let judgment be entered accordingly.”</p> <p>Judgment dismissing the complaint on the merits and for costs was duly entered, from which the plaintiff brings this appeal.</p>

<p>Appeal from a judgment of the circuit court for Jackson county: James O’Neill, Circuit Judge.</p> <p>An action for $850 worth of material and mill work sold ■and furnished by the plaintiff under a written contract made February 19, 1900, and incorporated in the construction of a new school-house situated upon land belonging to the district, and now occupied and used by it for school-house purposes. The contract was simply to “furnish all the mill-work for your school-house, according to plans and .specifications, for the sum of $850.00.” The defense was invalidity of the contract.</p> <p>It appeared, and was found by the court, th&t the defendant district, in 1899 and 1900, contained a population of 376 and had an assessed valuation of real and personal property ■of $71,564; that, at the annual school meeting in July, 1899, it was declared as the sense of the voters that proper steps be at once taken for the erection of a suitable schoolhouse for the district. A building committee was appointed, including the school board, and was directed to “ get plans for a school-house within four thousand dollars ($4,000).'” ■On August 8, 1899, at a special meeting, a loan for $2,580 from the state trust funds was authorized, which was negotiated, and the money received in December, 1899. At the time of the contract with the plaintiff, no other steps had been taken by the school district, either to authorize the building or to provide money. At that time there had been incurred indebtedness in the course of building the schoolhouse, aggregating $2,983.76, a sum in excess of the moneys borrowed from the trust funds. In July, 1900, it was resolved that the board be instructed to negotiate a loan of $1,000. Also, it was resolved that the sum of $1,600 be levied against the taxable property; of the school district for that year, to be used for building purposes. In a subsequent suit by taxpayers, that levy has been adjudged void in toto, and its collection enjoined, on the ground that there never was any certification by the town board that a larger sum than $1,000 needed to be raised. The court found that the plaintiff was not shown to have had any actual knowledge as to the condition of these funds or the amount contracted against them.</p> <p>The court held,'as conclusion of law, that the power of the building committee to bind the defendant had been exhausted at the time of the contract with the plaintiff, for the reason that the constitutional limit had already been passed, and that there.were then no funds provided by the district for said building. Accordingly judgment was entered in favor of the defendant, from which the plaintiff appeals.</p>

<p>Appeal from a judgment of the circuit court for Kenosha county: FeaNK M. Fish, Circuit Judge.</p> <p>Action in ejectment by sis of the nine children of William Crawford, who died intestate October 1, 1899, against. John J. Crawford, another child, to recover eighty acres of land in Kenosha county, Wisconsin, of which the paper title has at all times been in William Crawford, but which the defendant has occupied as a farm continuously since the year 1875. The defense was first, an alleged parol gift from William to John J., consummated by possession and improvements, consisting of clearing the land and building thereon residence, barns, etc.; secondly,, adverse possession for more than twenty years. The same facts were further set up as a counterclaim, with prayer that title be adjudged and quieted in defendant.</p> <p>The case was tried to the court without a jury, and the court found that William Crawford died seised in fee simple and possessed of the premises in question; that the defendant’s occupation had at all times been in subservience to his father, and not adversely, and not by a parol gift, and not otherwise than by permission of William Crawford; that defendant’s possession is fully explained by the evidence herein to have been permissive in its origin, and to have so continued up to the death of William. Whereupon judgment was entered in favor of the plaintiffs against the defendant, adjudging the former to'hold in fee simple six ninths of the land in controversy and to be entitled to the possession thereof; also dismissing defendant’s counterclaim for confirmation of his title under the alleged parol gift. Erom that judgment defendant appeals.</p>

<p> Oral contract to devise lands: Evidence: Specific performance: Possession: Statute of frauds. </p> <p>1. In an action to enforce specific performance of an alleged oral contract by plaintiff’s father to will to him certain portions of a large farm which plaintiff subsequently lived upon with his father and’ operated on shares for many years, the evidence (discussed in the opinion) is held to sustain a finding that the alleged contract was not made.</p> <p>2. Plaintiff’s possession in such case, being subordinate to his father’s possession and due to the sharing agreement, was not such as would warrant the enforcement of specific performance of the oral contract if it had been made.</p> <p>3. An oral agreement to devise lands in consideration of services to be performed is not taken out of the statute of frauds by the mere performance of the services, although they be of a personal nature.</p>

<p> Deeds: Condition subsequent: Breach: Re-entry: Remedies: Pleading: Equitable, construction: Forfeiture: Waiver: Railroads: Eminent domain: Private purpose: Possession of land under contract. </p> <p>1. If a person conveys land to another stipulating that the title shall revert to him upon a failure of such other to fulfill certain condi- , tions specified, a breach of the condition occurs; and such person makes re-entry of the property or does something equivalent thereto for the purpose of reclaiming the same pursuant to the terms of the grant, in the absence of any equity preventing the legal effect of such facts the title to such property will thereby become re-vested in such person as absolutely as it was before such conveyance was made.</p> <p>2. In the circumstances stated, the grantor, having reclaimed the property, may invoke judicial remedies in respect thereto, pleading his title in general terms the same as if no disturbance thereof had occurred by reason of the grant upon condition.</p> <p>3. If a person conveys property to another, coupled with a condition the breach of which will, if taken advantage of, cause the title to revert to him, the condition being to secure the payment of money, or the performance of an obligation the breach of which can be fairly measured in money by some established rule, the particular thing to be done or the particular time of the doing thereof not being made essential and of the very essence of the contract, under some circumstances a' court of equity, by an arbitrary rule of construction peculiar to that jurisdiction, may say the parties did not intend the full effect of their language, but purposed to have the condition stand as security for the performance of the obligation or the payment of an equivalent in money.</p> <p>4. By the arbitrary rule referred to, contracts may be judicially made to read contrary to the literal or reasonable meaning of the language thereof, measured by ordinary rules for judicial construction, and then enforced according to the intention of the parties as judicially declared.</p> <p>5. The rule of construction above indicated applies to prevent a forfeiture where the circumstances are such as to fall within the jurisdiction of equity and the person seeking the benefit thereof is not guilty of having wilfully or inexcusably violated his obligation.</p> <p>6. The beneficiary of a condition in the conveyance of property, for the breach of which the title thereto may revert to him, may lose the benefit thereof by conduct rendering it inequitable for him to insist upon the forfeiture as stipulated.</p> <p>7. Mere silence is not sufficient to waive a forfeiture; but silence on one side and conduct in good faith relying thereon on the other, whereby such other is placed in such a situation that he will be greatly damaged if the apparent attitude of his conditional grantor be changed effectively, will bind such grantor as a waiver of the benefit of the condition.</p> <p>8. Mere silence will not operate as a waiver of the benefit of a condition in case of an intentional breach thereof, though the conditional grantee incur expense which would operate to his prejudice if the grantor were thereafter permitted to insist upon the forfeiture.</p> <p>8. The establishment of a railroad as a purely private enterprise cannot be legitimately aided by the power of eminent domain.</p> <p>10. The doctrine, that if a railroad company takes possession of land for . a public way, the owner thereof not objecting, the latter will be presumed to have consented thereto and impliedly agreed to accept a just compensation therefor and consented to rely upon the statutory method of obtaining the same, has no application to a case wliere the rights of the parties are defined by a written instrument.</p> <p>11. If a railway corporation takes possession of land for a private purpose, its right to do so resting in a grant-by the owner thereof, and it subsequently loses that right by forfeiture to such owner, it cannot thereafter defy such owner and continue to enjoy his property because it might successfully proceed in good faith to acquire it for a public purpose.</p> <p>Cassoday, C. J., dissents.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p> Jurisdiction: State and federal courts: Trustee in bankruptcy: Setting aside fraudulent conveyances: Necessity of judgment: Insufficiency of assets: Pleading. </p> <p>1. Jurisdiction may be exercised by the courts of this state in an action by a trustee in bankruptcy, appointed under the federal bankrupt act, to set aside as fraudulent conveyances of real estate made by the bankrupt which are not void under said act but were macle in fraud of creditors and are therefore void under sec. 2320, Stats. 1898.</p> <p>2. A judgment and return of execution unsatisfied are not necessary to enable a trustee in bankruptcy to maintain an action in equity to set aside transfers of property by the bankrupt in fraud of creditors, since under the bankrupt act neither the trustee nor the creditors whom he represents could obtain such a judgment.</p> <p>3. The complaint in an action by a trustee in bankruptcy to set aside transfers of property by the bankrupt debtor on the ground that they are fraudulent as to creditors must show that the plaintiff has not sufficient assets in his hands belonging to the estate to satisfy the claims filed against the debtor.</p>

0. Ludwig, Judge. Appeal by defendant Eugene E Douville from order overruling his demurrer to the complaint. The complaint is-for the enforcement of mechanics’ liens, and alleges liability for balance of contract price upon two written contracts for different portions of defendants’ building.

<p> Negligence: Personal injuries: Unguarded hatchway: Master and servant. </p> <p>1. While plaintiff was on defendant’s premises at their request for the purpose of making repairs on the roof, he was injured by falling through an open, unguarded hatchway in dangerous proximity to ' the regular passageway in which he was walking. Neither the hatchway nor the passageway was sufficiently lighted. All such facts were known to defendants and unknown to plaintiff. Held, that defendants were liable for the injuries.</p> <p>2. An allegation that plaintiff was lawfully, and at the special instance and request of defendants, upon premises and in a building belonging to them for the purpose of doing certain work upon the roof, does not show that plaintiff was in the employ of defendants.</p>

C. Ludwig, Judge. This is an action in equity brought by stockholders of the Sylvan Dell Land Company, a corporation, on behalf of the corporation, to recover from the defendants, some of whom are directors of the corporation, illegal profits claimed to have been made by said defendants as promoters of the corporation. The defendant Krause was not a party to the action as originally brought, but was subsequently brought in on motion of the remaining defendants.

Elliott, Circuit Judge. Appeal from a judgment by default in an action to foreclose a mortgage.

Williams, Judge. The plaintiff brought this action in the superior court of Milwaukee county to recover damages for a trespass to certain real estate owned by her, alleged to have been committed by the defendant. Damages were laid at $3,000. A trial by court and jury resulted in a verdict of $50 for plaintiff. The plaintiff’s costs were allowed and taxed by the clerk at the sum of $59.86.

Appeals from orders of the superior court of Milwaukee county: J. 0. Ludwig, Judge. Separate appeals from orders overruling the separate de.murrers of the'two appellants.

<p> Negligence: Master and servant: Personal injuries: Special verdict, </p> <p>1. In an action by an employee in a foundry to recover for personal injuries caused by bis falling into a wheel pit containing burning charcoal, a finding of the special verdict that the ground at the edge of the pit caved or gave way beneath the feet of the plaintiff does not establish negligence on the part of the defendant.</p> <p>2. The complaint in such a case alleged that the excavation was made negligently, in that the walls were not firm or substantial, but were insufficient to sustain plaintiff’s weight while standing within a foot and a half thereof, as he was when said walls gave way and he was precipitated into the pit, etc.; and the answer was a general denial. Held, that a finding of the special verdict that defendant was not guilty of any negligence in the construction or maintenance of the pit which was the proximate cause of the plaintiff’s injuries, was within the issues.</p>

Elliott, Circuit Judge. This is a contest over the will of J ohanna Loennecker, a widow, who made her will February 6,1892, giving her son, Charles, the contestant, $5, and' dividing the balance of her estate, amounting to about $8,000, equally between her two daughters, Louise and Minnie. She died March 24,1900, aged sixty-two years; her three okildren being all adults and married.

Halsey, Circuit Judge. Action for damages for breach of warranty of an electric generator.

Elliott, Circuit Judge. This action is to recover damages for injuries alleged to have been caused by the insufficiency or want of repair of •a sidewalk in the city of Milwaukee. The accident happened on February 17, 1896.

Rakish, Circuit Judge. Motion for a stay of proceedings pending the appeal. Taxpayers’ action to restrain the county board of Gates ■county from erecting county buildings or incurring any expense to the county in that regard pending efforts to have the question of where the county seat should be located ■submitted to a vote of the electors of the county.

0. Ludwig, Judge. Action commenced in justice’s court on defendant’s promissory note transferred to the plaintiff after its maturity, ■which at the time of its maturity was held and owned by the A. Kieckhefer Elevator Company.

<p> Criminal law and practice: Larceny: Amendment of complaint and warrant: Ownership: Consent to taking: Felonious intent: Instructions to jury. </p> <p>1. Where the complaint and warrant in a prosecution for larceny alleged that the stolen property was the property of May Armour, but the evidence upon the trial showed that it belonged to Mrs. Philip D. Armour, Jr., it was not error, under secs. 4703,4706, Stats. 1898, to allow the complaint to be amended, after the testimony was closed, to correspond with the proofs.</p> <p>2. In suck a case the fact that the warrant was not in form amended was immaterial.</p> <p>8. "Where a farm from which property was claimed to have been stolen by an employee was under the management of an overseer who was the complaining witness in a prosecution for the larceny, the fact that the owner was not sworn and examined as a witness to prove her nonconsent to the taking, is held, under the circumstances, not to have required direction of an acquittal.</p> <p>4. Where the accused in such a case claimed that he took the property by permission of another employee on the farm, an instruction that the jury should acquit the accused if he took such property thinking that he had such permission, but that they should convict him if such permission had not been given, is held error, since it left entirely out of consideration the question of felonious intent.</p>

<p>(1) Appeal and error: Record. (3-5) Criminal law and practice: Assault with intent to rape: Evidence of similar offenses: Instructions ■ to jury: Reasonable doubt.</p> <p>1. A paper purporting to be an additional or amended certificate to the bill of exceptions, which was not attached to the bill and did not come to the supreme court with the certificate of the clerk of the trial court, cannot be' considered a part of the record, at least in the absence of an agreement of the parties.</p> <p>3.In a prosecution for assault with intent to rape, evidence of an assault committed by the accused on the same day upon another woman is inadmissible for the purpose of showing intent.</p> <p>3. The jury in a criminal case were instructed that in considering the case they were not “ to go beyond the evidence to hunt up doubts, nor must they entertain such doubts as are merely chimerical,— matters of conjecture. The doubt, to justify acquittal, must be reasonable and must arise, either negatively or positively, fi'om a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty.” Held, misleading and prejudicial in that it was liable to impress the jury with the idea that guilt is the natural jiresumption and that they must find a doubt from the evidence in order to justify an acquittal.</p> <p>4. The term, “ the graver transactions of life,” as used in such instruction, is held not an equivalent of the approved expression, “ the most important affairs of life.”</p> <p>5. If any definition of reasonable doubt is attempted, it should be defined as a doubt which should cause a reasonably prudent man to pause or hesitate in the most important affairs of life, rather than as a doubt which would control or govern his actions or deter him from acting in such affairs. Butler v. State, 103 Wis. 364, limited.</p>

Dice, Circuit Judge. The plaintiff brings this action as administrator of the estate of A. L. Kane, deceased, to recover on a promissory note, dated April 9,1895, for $926, due in one year, with six per cent, interest. The answer admitted the execution of the note and alleged payment. The court found that prior to the death of Mr. Kane the defendant fully settled and paid said note, and that defendant failed to take it up because she had forgotten that she had ever given it.

<p>Appeal from a judgment of the circuit court for Racine county: FRANK M. Fish, Circuit Judge.</p> <p>This is an action of ejectment commenced May 9, 1900. Roth parties claim title from one Origen Perkins, deceased. Issue being joined, and a trial by jury being waived, the cause was tried by the court, and at the close of the trial the court made findings, which, with the undisputed facts, are to the following effect :</p> <p>(1) On March 11, 1850, Origen Perkins was the owner in fee simple of the whole of the lands hereinafter mentioned, and, being about to move to California, and for and in consideration of love and affection, for his son, Frederick S. Perkins, made, executed, and delivered to one Dr. Edward Q-. Dyer, of Burlington, Wisconsin, a trust deed, whereby he gave, granted, sold, and conveyed to him, his heirs and assigns, the undivided two-thirds of the lands therein described, including the lands in question, upon the trusts and to the uses, intents, and purposes therein expressed, limited, and declared, to have and to hold the same to himself, his heirs and assigns, to his and their use and confidence, nevertheless, to receive the rents and profits for a term not exceeding -one year from that date, and with the same, and by the sale of so much land as he might find sufficient and necessary, to pay his just debts, and immediately after such payment to permit his wife, Julia A. Perkins, to receive the rents and profits of such lands to her use for her life; she to pay to Frederick S. Perkins such sum of money yearly as she might deem proper out of the rents and profits of the same. Then follows in the trust deed the following provisions:</p> <p>“ And in case the said Julia shall die in the lifetime of the said Frederick S. Perkins, then the said Edward G-. Dyer to pay to the said Frederick such sum or sums out of the rents and profits of the said lands as he may deem proper until the said Frederick shall arrive at the age of twenty-five years, and then, and as soon as the said Frederick shall arrive at said age of twenty-five, he shall receive the whole rents and profits of said lands to his use during his life. And in case the said Frederick shall survive the said Julia, and shall have issue, then the said lands, or the proceeds thereof, shall be conveyed by the said Edward G-. Dyer to the said heirs of his body of the said Frederick S. Perkins, for their use and the use of their heirs, forever. And in case the said Frederick S. Perkins shall die, without issue, in the lifetime of the said Julia, wife of the said Origen Perkins, then immediately upon the death of the said Frederick the said Edward G. Dyer shall convey five eights (■§•) of the aforementioned two-thirds of said lands, tenements, heredi-taments, and appurtenances of said Julia and her heirs, to her and their use forever, and three eights (-§-) of the aforementioned two-thirds of said lands, tenements, heredita-ments, and appurtenances to the heirs of Edward Perkins, deceased, to their use forever.</p> <p>“ The said Edward G. Dyer shall have right, power, and authority to sell and convey any and every part of the before-granted premises and lots of lands in case of necessity arising out of the situation or wants of the said Julia in her lifetime, or after her death in case of necessity arising out of the situation or wants of Frederick S. Perkins, or upon the joint wish of the said Julia and Frederick S. at any time, with the consent of the trustee; the proceeds to be invested in such safe manner as the trustee deems proper for the use of the parties in interest. And if the said Origen Perkins shall survive his wife, the said Julia, or his son the said Frederick S., then the said Edward G. Dyer, or his heirs, shall convey the premises to such person or persons and in such manner as the said Origen Perkins shall direct by his will or otherwise. And the said Edward G. Dyer, on his part, accepting the trust aforesaid, doth, for himself, his executors, administrators, and assigns, covenant, grant, and agree to and with the said Origen, Julia, and Frederick S. Perkins, and each of them, their, and each of their, representatives, faithfully to perform and fulfill the trusts aforesaid, and every part thereof, according to the true intent and meaning of these presents.”</p> <p>(4) At the time of the execution and delivery of such trust deed (March 14, 1850) the said Origen Perkins made and executed to said Edward G-. Dyer another trust deed, for the benefit of his wife Julia A. Perkins, in and by which he granted, sold and conveyed to said Dyer, in trust, the other undivided one-third of the same property. By virtue of the two trust deeds the trustee took possession and control of all the property described therein, and collected the rents and profits thereof, and fully managed and controlled the same.</p> <p>(2) At the time of making such trust deeds the said Origen Perkins had but one child,— and he by a former marriage,— the said Frederick S., who was then about seventeen years of age, and unmarried, and had no children; and the said Julia A. was his stepmother.</p> <p>(3) In March, 1853, Origen Perkins died intestate in California, leaving his widow, Julia A., and his son, then a little over twenty years of age and unmarried, as his only child and heir at law, him surviving. On August 19, 1858, the said Julia A. Perkins conveyed by deed to the said Frederick S. Perkins all her interest under said trust deed so made for her benefit. On May 1, 1859, the widow, Julia A., died.</p> <p>On April 1, 1861, the said Frederick S. Perkins (being then twenty-eight years of age, and living in Brooklyn, New York) commenced an action in the circuit court for Racine county against the said trustee, Edward G. Dyer. The complaint in that action mentioned some of the facts above stated, and that the rents and profits of said undivided two-thirds were only $175 per annum; that Frederick S. Perkins had had opportunities to sell a large portion of said lands at advantageous prices, but could not, by reason of such trust deed; that the trustee had refused to join in a conveyance by reason of an alleged erroneous construction he had placed upon such trust deed — and prayed judgment that such trust deed be construed by the court, and the trustee be adjudged to convey the said undivided two-thirds of said lands, by quitclaim deed, to the plaintiff therein, Frederick S. Perkins, and that the title in fee simple be adjudged to be vested in the plaintiff. The trustee, Dr. Dyer, appeared therein by attorney, and answered such complaint, stating some of Origen Perkins’s reasons for making the trust deed, and praying a construction thereof. The facts so stipulated in that case, and as found by the court therein, April 25, 1861, were, so far as applicable to that case, the same as stated above. And, as conclusions of law, the court found therein that the trust deed was wholly void and of no effect; that Frederick S. Perkins was the owner in fee simple of the undivided two-thirds of said lands; that the plaintiff therein, Frederick S. Perkins, was entitled to the relief so demanded in his complaint; that the trustee be perpetually enjoined from exercising or executing any supposed trust created by such deed, and from exercising any control over such property, and was thereby ordered to convey the same by quitclaim deed to Frederick S. Perkins; and judgment was ordered accordingly, and such judgment was thereupon so entered April 25,1861.</p> <p>In obedience to such judgment the said trustee executed and delivered to said Frederick S. Perkins, by quitclaim deed, all of said lands immediately after the judgment was so entered. On May 1,1865, Frederick S. Perkins married, and the four plaintiffs herein are the children of Frederick S. Perkins by the said marriage, and were born respectively as follows: Frederick IF,in 1866; Robert A,in 1870; Hewry F, in 1873; and Edward IF, in 1875. On May 18, 1877, Frederick S. Perkins’s first wife, and the mother of the plaintiffs herein, died. In 1888 or 1889 Frederick S. Perkins again married, and had four children born to him by such second marriage, and they were all still living and under age.</p> <p>(5) Shortly after the making and entry of the judgment of April 25, 1861, Frederick S. Perkins took possession of the property mentioned in the trust deed, as the sole heir at law of the said Origen. Perkins, deceased, and remained in the absolute, exclusive, and adverse possession thereof, managing and controlling the 'same as his own projierty, selling and otherwise disposing of the same down to the time of his death.</p> <p>(6) The plaintiffs were reared and supported by said Frederick S. Perkins, up to the time they respectively reached their majority, upon and out of the rents, profits, and proceeds of said property. On March 12, 1887, Frederick S. Perkins delivered to the plaintiff Frederick, W. Perkins a conveyance in fee simple of one of the lots described in said trust deeds.</p> <p>(8) And about the same time he conveyed another of said lots to the plaintiff Robert 8. Perkms.</p> <p>(10) On March 17,1892, Frederick W. Perkins and Robert 8. conveyed said lots for a valuable consideration, and have ever since retained the consideration.</p> <p>(13) On April 15,1893, “ the said Frederick S. Perkins and wife made, executed, and delivered to the defendant herein a deed of conveyance of the property described in the complaint herein, with full covenants of seisin and warranty, for the consideration of $16,000, which was then and there paid by said defendant to the said Frederick S. Perkins; and the said defendant, pursuant to said conveyance, took possession of the premises described in the complaint, and improved the same, and has ever since been in the possession thereof; and said defendant has sold many lots conveyed to it by the said Frederick S. Perkins in said conveyance, not described in the complaint, and buildings have been erected upon said lots so sold, by the grantees in said respective deeds, to the number of at least six, and the said defendant has expended in taxes upon the property so purchased the sum of $487.17, and has laid out and expended in permanent and valuable improvements upon said property since the said purchase, and in pursuance thereof, $5,000.”</p> <p>(12) On January 18,1898, the plaintiff Edward W. took a conveyance of three lots, being a part of the property described in the trust deeds, and has ever since retained the same and the title thereto.</p> <p>(9) On April 19,1899, Frederick S. Perkins and wife conveyed to the plaintiff Robert 8. two lots described in such ■trust deeds.</p> <p>(3) On October 1, 1899, Frederick S. Perkins died.</p> <p>(11) Shortly after his death the plaintiffs herein learned ■of the facts stated in such findings from 1 to 4, inclusive.</p> <p>As conclusions of law, the court found, in effect, that the trust deed of two thirds of the property, a large portion of which is quoted above, was absolutely null and void, as an attempt to create a perpetuity and to suspend the absolute power of alienation for a period of more than two lives in being at the time of its execution and delivery, and that the same was not within the exception thereto; that, the trustee having taken possession of said land pursuant to such two trust deeds, the action of Frederick S. Perkins against him, and the judgment therein, absolutely divested all the right, title, and interest of said Dyer, as such trustee, in or to said lands; that said trustee having taken possession and control of said property by virtue of said two trust deeds, and having been given the power of sale for certain purposes, as appears in the trust deed for the benefit of Frederick S. Perkins, as quoted above, and as in case of the exercise of ■such power he would have held the proceeds of such sale for the benefit of any child or children of Frederick S. Perkins, and as by the terms of such deed the said trustee was to convey to such children after the death of said Frederick S. Perkins upon certain contingencies therein set forth, the ■said trustee, therefore, was thereby made, at least until the birth of any such child, the sole representative of the contingent interests intended to be conferred upon such child or children by such trust deed, and hence in the suit against him terminating in tbe judgment of April 25, 1861, he represented all contingent and other interests intended to be created by such trust deed, and represented all such unborn. children, and hence all such interests so intended to be created by such trust deed were cut off and determined by such judgment of April 25, 1861; and therefore the plaintiffs have no right, title, or interest in the lands described in the complaint herein, and the defendant does not unlawfully withhold the possession thereof from them.</p> <p>Judgment was ordered dismissing the complaint, with costs. From the judgment so entered November 26, 1900, the plaintiffs appeal.</p> <p>They contended, inter alia, that the trust deed created merely a passive trust so far as the plaintiffs’ estate was concerned, and' a legal estate vested in each as he came into being, the same as though no trustée had been named. Secs. 2073-2075, Stats. 1898; Tyson v. Tyson, 96 Wis. 59, 67; Sulliv'am, v. BrvMing, 66 Wis. 472; Verdin v. Slocum, 71 N. T. 345. Assuming that certain active trusts, during the lives of Julia and Frederick S., were created, they would not affect the naked passive trust as to the remainder in fee in the plaintiffs, nor clothe it with any validity. Sec. 2087, Stats. 1898; Baker v. Estate of McLeod, 79 Wis. 534; Burnham v. Burn-ham, 79 Wis. 557; Tyson v. Tyson, 96 Wis. 59, 66; Stevenson v. Lesley, 70 N. Y. 512, 516; Embury v. Sheldon, 68 N. Y. 227; Losey v. Stamley, 147 N. Y. 560. Since, as to the plaintiffs at least, the attempted trust was passive and void, Dr. Dyer was not their trustee, and the judgment of April 25, 1861, was void as against them and did not affect their title. McArthur v. Scott, 113 U. S. 340; Ohaffin v. Hull, 49 Fed. Rep. 524; Johnson v. Jacob, 11 Bush. 646; Monarque v. Monarque, 80 N. Y. 320; Buggies v. Tyson, 104 Wis. 500,</p> <p>argued, among other things, that Dr. Dyer was not only vested with the fee simple title, but was trustee for the after-born children and had the right to represent them in the lawsuit which determined the validity of the deed. Bennett v. Gamlock, 79 N. Y. 303, 317; Robinson v. Pierce, 118 Ala. 273; S. G. 45 L. R. A. 66, 72; Buggies v. Tyson, 104 Wis. 500; Yan Fleet, Former Adjudication, § 493 and cases cited; Temple v. Scott, 143 Ill. 290; Briscoe v. Perkins, 1 Yes. & R. 485; Vcmderheyden v. Granddll, 2 Denio, 9; Schiffman v. Schmidt, 154 Mo. 204; In re Krebs’s Estate, 184 Pa. St. 222; Schley v. Brown, 70 Ga. 64; Stevens v. Melcher, 6 N. Y. Supp. 811; Mooberry v. Harding, 10 Lea (Tenn.), 392; Hart v. Bayliss, 97 Tenn. 72; Oarney v. Byrón, 19 R. I. 283; Summons v. Richardson, 107 Ala. 697; Appeal of Clarke, 70 Conn. 195; Walton v. Ketchum, 147 Mo. 209. Both life tenant and trustee being parties, the decree barred after-born children. Taltarum’s Case, Year Book, 12 Edw. IY, 19, A. D. 1472; 1 Washb. Real Prop. (5th ed.) *70; Digby, Hist. Law Real Prop. 252; Giffm-d v. Hort, 1 Sch. & Lef. 386; Townshend v. Frommer, 125 N. Y. 446; Kent v. Ohurch of St. Michael, 136 N. Y. 10; Campbell v. Watson, 8 Ohio, 499; U. S. Trust Co. v. Roche, 116 N. Y. 120; Yan Fleet, Former Adjudication, § 491; Clyburn v. Reynolds, 31 S. C. 91; Baylor’s Lessee v. Begarnette, 13 Grat. 152; Temple v. Scott, 143 Ill. 290; Miller v. Foster, 76 Tex. 479; Frcmklin Smmgs Bank v. Taylor, 53 Fed. Rep. 854.</p>

<p>Habeas coRpus to the warden of the state prison.</p> <p>A writ of habeas corpus to the warden of the state prison at Waupun, in response to which the petitioner is produced before us. By the petition, confirmed by the return, it is made to appear that he was convicted of burglary, and on the 5th day of December, 1899, sentenced to the state reformatory at Grreen Bay for a term of from one to five years, in accordance with secs. 4944a, 4944c, Stats. 1898, as amended by oh. 28, Laws of 1899, and that on January 15, 1900, he was, by order of the state board of control, with the approval of the governor, transferred to the state prison at Waupun, in pursuance of the authority conferred by sec. 4944f, Stats. 1898, as amended by same act, and at the time of the issue of the writ was confined at said latter institution by virtue of said sentence and order.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county; J. C. Ludwig, Judge.</p> <p>On June 16,1897, the plaintiff entered into a written contract with the defendants to furnish and set up the steel and iron to be used in the construction of a building to be erected by the defendants in the city of Milwaukee for the sum of $16,458. The work was to be done under the direction and to the satisfaction of Howland Eussell, the architect. The entire framework was to be completed by October 9, 1897, and all work for the building by November 15th following. No alterations were to be made in the work shown by the drawings and specifications except upon the written order-of the architect. In case the building was not completed at the time specified it was agreed that the owner was to be allowed the sum of $50 per day, as liquidated damages, for every day after that date the work remained unfinished. It •was further provided that, should the contractor be obstructed or delayed in the prosecution or completion of his work by the. act, neglect, delay, or default of the owner, architect, or any other contractor, etc., the time fixed for the completion of the building should be extended for a period equivalent to the time so lost; “but no such allowance shall be made unless a claim therefor is presented in writing to the architect within twenty-four hours of the occurrence of such delay. The duration of such extension shall be certified by the architect; ” but an appeal from his decision might be made to arbitration. Payments were to be made upon written certificates of the architect to the effect that such payments had become due. The contract contained other provisions, not material to this litigation. Plaintiff entered upon the work, and, not being paid in full, brings this action to recover the balance claimed to be due.</p> <p>The complaint, among other things, alleged that plaintiff had completed the contract; that defendants had failed to pay the balance due, of $2,808; that the architect, without any cause, refused to issue a certificate therefor, as required by the contract; that the defendants had conspired and colluded with the architect, and instigated him to withhold said certificate, to prevent plaintiff from securing its just demands. A second cause of action was for extra work done on the building amounting to $343.16, and contained similar allegations as to the architect’s withholding a certificate of such extras.</p> <p>As to the first cause of action, the answer admitted the contract, denied performance and all allegations of collusion, and alleged payment of all certificates of the architect which had been presented. To the claim for extras the defendant set up tbe clause in. tbe contract as to to tbe requirement of a written order from the architect, and alleged that if extra work was done it was without such order. For a counterclaim the defendants set up the clause in the contract as to completion of the work, and alleged that plaintiff did not complete the building until more than thirty-two days after the time stipulated. Damages in the sum of $1,600 were claimed.</p> <p>In a reply the plaintiff alleged that the delay mentioned was caused by defendants and the architect not furnishing drawings and data to enable it to prosecute the work, by contractors of other parts of the building, and by changes and alterations in the building made by defendants; that no claim in writing for such delay was presented to the architect, because the defendants requested the delay and promised plaintiff that it would not be necessary to secure any certificate of extension from the architect; also that errors were discovered in the drawings and stipulations, upon the discovery of which work was to stop, and the work was thereby delayed more than thirty-two days after November 15, 1897.</p> <p>On the trial it was shown that the architect delivered to plaintiff the following final certificate:</p> <p>“ $1,551.16 CERTIFICATE.</p> <p>“Milwaukee, "Wis., June 11, 1898.</p> <p>“ To Estate of E. Ha/rrison Oa/ooher:</p> <p>“ This is to certify, that The J. 0. Wagner Oo., contractor for the steel and iron work of the ‘ Cawker Bldgs.,’ is entitled to a payment of $1,551.16, by the terms of contract, dated July 10, 1897.</p> <p>“ HowlaND Russell, Architect.</p> <p>Contract pries..$16,458.00</p> <p>Bal. brought forward. $2,808.00</p> <p>Remarks:</p> <p>Extra. $343.16</p> <p>This certificate. $1,551.16</p> <p>Balance .'. $1,600.00 Forfeited by</p> <p>32 days’ delay at $50.00 per day.”</p> <p>Plaintiff protested against the allowance for delay. He presented the certificate for payment. The defendants offered to pay if he would receipt in full for all demands. This the plaintiff declined to do. Testimony was given by plaintiff tending to show that the architect had waived a written order as to extra work and the written notice regarding the claim for delay in the work, required by the contract. The following special verdict was rendered:</p> <p>£l 1. Did the plaintiff complete and furnish all the work and materials called for by its contract with the defendants ? A. (by the court) Yes.</p> <p>“ 2. What portion of the price named in the contract remains unpaid, and what is the interest thereon at the rate of six per cent, per annum from time the work was commenced? A. Balance unpaid on contract, $2,808.00; interest to date, $486.00, — total $3,294.00.</p> <p>“ 3. Did the plaintiff, at the defendants’ request, furnish certain extra work and materials in the construction of the Cawker Building, and what was the value thereof, with interest thereon at the rate of six per cent, per annum from the completion of the work? A. (by the court) Yes. Yalue of extras, $343.16; interest thereon, $55.85, — total, $399.01.</p> <p>“4. Did the defendants waive that provision of the contract requiring that no alteration should be made on the work except on the written order of the architect. A. (by the court) Yes.</p> <p>“5. Was the architect, Howland Russell, actuated b'y fraud, collusion with the owner, or bad faith in rendering the decision embodied in the certificate which has been offered in evidence as to the amount due the plaintiff upon the contract? A. Yes.</p> <p>“ 6. If you answer the first question in the affirmative, did the defendants waive that provision of the contract requiring that no allowance or extension of time should be given for delays unless the claim therefor should be presented to the architect within twenty-four hours of the occurrence of the delay? A. Yes.</p> <p>“ 7. If you answer the fifth question in the affirmative, when did the plaintiff complete that portion of the work comprised within the contract ? A. November 27, 1897.</p> <p>“ 8. If you answer the fifth question in the affirmative, then •did the defendants, prior to the 15th day of November, 1897, delay the plaintiff in the prosecution of its contract work, and, if so, how long? A. Yes, fifty-six days.”</p> <p>Plaintiff moved for judgment; and defendants to set aside the verdict and for a new trial. Plaintiff’s motion was granted, and judgment was entered in its favor, from which defendants take this appeal.</p>

Halsey, Circuit Judge. Action by plaintiff to recover $931.50 as commission on sale of 5,000 gross of glass bottles. The facts were substantially as follows: On July 5, 1900, defendant authorized plaintiff to sell 5,000 gross of bottles, at $3.60, five per cent, commission,, f. o. b. Rochester, thirteen cents freight allowance to the purchaser.

C. Ludwig, Judge. This is an action to recover $125.80, with interest from May 10, 1899, claimed to be due to the plaintiff for advertising done in the plaintiff’s newspaper for and on behalf of the defendant and at his special instance and request, between March 1, 1899, and May 10, 1899, inclusive, at an agreed price, according to the itemized statement annexed to the complaint and made a part thereof.

Williams, Judge. This is an action for libel. There was a trial before a jury.

Elliott, Circuit Judge. Action for a peremptory writ of mandamus to compel the state board of dental examiners to license the relator to practice dentistry in the state of Wisconsin. The petition, in the main, is as follows, omitting formal parts: On May 11, 1901, the relator was duly awarded a diploma by the department of dental surgery of the Wisconsin College of Physicians and Surgeons, of Milwaukee, Wisconsin.

Williams, Judge. On February 1, 1899, one W. L. Arven took out a policy on his life in the Pacific Mutual Life Insurance Company for $1,000, in which the plaintiff, his betrothed, was named as the sole beneficiary.

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>The plaintiff’s intestate, Bromley, had for some years been agent for a railroad freighting combination known as the Kanawha Dispatch, with duty to solicit shipments of freight, and collect and remit prepayments therefor. During a few months prior to March 11, 1897, he had collected such advance freight moneys, and deposited them to his own account in the defendant bank, to an amount considerably exceeding his then balance. He drew checks on March 2d, 3d, and 5th, payable to George A. Hood, cashier of said Kanawha Dispatch, aggregating $5,523.80, for specified freight collections as aforesaid, on various dates extending from December 18th to February 9th. These checks were received by Hood, at Cincinnati, in due course of mail, prior to March 11th, but were not presented to the bank for payment until subsequent to that date. Bromley died March 11, 1897, leaving a bank balance at that time of $6,005.97. The checks, having been first presented, dishonored, and protested, were paid by the bank on the 23d and 27th days of March, upon being indemnified by the railroad companies whom Hood represented. Plaintiff was appointed administrator May 13,1897. On November 21,1898, he demanded payment of the entire sum on deposit at the time of Brom-ley’s death, $6,005.97, which being refused, he later demanded and received the surplus above said four checks, $482.17.</p> <p>The plaintiff commenced this action atlawlo recover the whole balance resting in said bank at the time of Bromley’s death, $6,005.97. The defendant interposed answer, setting up the foregoing facts of payment; also setting up the fact that all of said moneys belonged to the railroad companies for whom Bromley was agent, as having been collected by him in a fiduciary capacity, and deposited therein. Trial was commenced to the court and a jury, but at the close of the evidence, by consent of both parties, the jury was discharged, and the court- made findings of fact supporting payment of said checks, and held that a defense, upon which judgment was rendered for the defendant, from which the plaintiff appeals.</p>

<p> Constitutional law: Local act for construction of viaduct: Title of bill: Uniformity of county government: .Special law affecting highway. </p> <p>■Ch. 310, Laws of 1899 (entitled “ An act to authorize the building of viaducts across gullies, running streams, or railroad tracks, by the counties in this state, and for the issuing of county bonds therefor”), authorizes the board of supervisors of any county to construct a viaduct, and issue bonds to pay therefor, over any gully, river, valley, or depression, for the purpose of connecting two or more highways, streets, or roads, or different parts of the same highway, street, or road, provided such viaduct shall be not less than 1,000 feet long, sixty feet wide, and eighteen feet high, and ■cost not less than §80,000, and the amount of bonds issued therefor shall not exceed one fifth of one per cent, of the taxable property of the county.1 Milwaukee county is the only county in the state having an assessed valuation sufficient to raise §80,000 at the rate specified. Held, that said act is local and special, and violates both sec. 18, art. IY, Const, (providing that “no private or local bill . . . shall embrace more than one subject, and that shall be expressed in its title ”), and sec. 23, art. IV (providing that “ the legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable”). [Whether it also violates sec. 31, art. IV, Const, (prohibiting the legislature from enacting any special or private law for laying out, opening, or altering highways), not determined.]</p>

Appeals from orders of the superior court of Milwaukee county: J. 0. Ludwig, Judge. This is an action in equity by a corporation against its secretary and treasurer to obtain an accounting and to restrain said official from appropriating corporate moneys to his own use.

<p>Appeal from an order of the circuit court for Milwaukee county: Eugene S. Elliott, Circuit Judge.</p> <p>Action to recover the amount of an assessment upon a subscription for capital stock. The complaint contained the following statement of facts;</p> <p>July 20, 1891, plaintiff was and ever since has been a corporation duly organized as such under the laws of the state of Wisconsin. Before it transacted any business, except with its own members, more than fifty per cent, of its capital stock was subscribed for, and more than twenty per cent, thereof was paid in cash into the treasury. One of the subscribers for stock was Thomas Shea. The amount of his subscription was 125 shares of the face value of $100 per share. By the terms of his subscription, in common with all other subscribers, he agreed to pay $40 upon each share of stock subscribed for by him as a down payment, and to pay the balance as the same should be called for by the corporation. July 20,1891, Shea and all the subscribers for stock paid $40 per share upon their subscriptions. May-21, 1892, a call for sixteen per cent, of the face of the stock was duly made by the plaintiff, which call was paid by all subscribers. July 9, 1894, Shea died testate in the city of Milwaukee. Thereafter such proceedings were taken that his estate was fully settled and the property left by him, after paying his debts and the costs of administering the estate, was distributed to the persons entitled thereto under the will, and the executor was discharged. The dis-tributees were the defendants, Kate Murphy, Andrew T. Shea, Edward Shea, Alice Bulger, and Mary Cavanaugh. Each received one fifth of property exceeding in value $50,000.</p> <p>After such distribution a call was duly made, pursuant to a resolution of the stockholders and board of directors of the plaintiff, and pursuant to its by-laws theretofore duly made and adopted, upon all the subscribers for stock, for fourteen per cent, of the face value of their subscriptions, payable upon the 1st day of November, 1898, and a call of ten per cent, of such face value payable on the 1st day of March, 1899. Plaintiff’s by-laws duly provided the manner in which each subscriber and his successors in interest should be notified of such calls, and due notice thereof was given to each of the defendants pursuant thereto. Payment of the calls by the defendants, as to the Shea stock, was duly demanded before the commencement of this action, and payment was refused except as to $350.</p> <p>Judgment was demanded for the balance of the calls as to the Shea stock, amounting to $2,650 and interest. Defendants Kate Murphy, Andrew T. Shea, and Edward Shea demurred to the complaint for insufficiency and for want of jurisdiction of the court over the subject of the action. The demurrer was overruled, and the demurrants appealed.</p> <p>They contended, inter alia, that plaintiff cannot sue at law; the remedy is in equity. 13 Ency. of PL & Pr. 11; Fisher v. Fuller, 122 Ind. 31; Borer v. Chapman, 119 U. S. 587,600; Ptiblie Works v. Columbia, College, 17 "Wall. 521, 531; Pay son v. Iiadduoh, 8 Biss. 293, 302; Continental Nat. Panic v. Heilman, 81 Fed. Rep. 36,12; Johnson v. Culbertson, 79 Fed. Rep. 5. Secs. 3269 et seq. and secs. 3861 etseq. are but declaratory of the equitable doctrine, leaving the remedy as it was before their enactment. Ernst v.Nau, 63 Wis. 131, 138; 13 Ency. of PI. & Pr. 11; Continental Nat. Bank v. Heilman, 81 Fed. Rep. 36, 13; Johnson v. Culbertson, 79 Fed. Rep. 5; Hendrielcs v. Keesee, 32 Ark. 711; Williams v. Ewing, 31 Ark. 229; 3 Pomeroy, Eq. Jur. 1151; Hamblin v. Bohrbaugh, 3 Kan. App. 131; Blinn v. McDonald, 92 Tex. 601; Stroud's Heirs v. Barnett, 3 Dana (Ky.), 392. It has been held by this court that the action under secs. 3271 et seq. against heirs and devisees is equitable. Adkins v. Louoks, 107 Wis. 587; Hauselt v. Patterson, 121 N. Y. 319, 356; Wood v. Wood, 26 Barb. 356; Mortimer v. Chambers, 63 Hun, 335. Personal property differs from real property in no respect which should make the remedy at law as to one and in equity as to the other. Plaintiff’s claim is barred. It was not a contingent claim. Austin v. Saveland’s Estate, 77 Wis. 108; Carpenter v. Murphey, 57 Wis. 511; Lo-gara v. Dixon, 73 Wis. 533; Edwards v. Boepke, 71 Wis. 571, 575; Foster v. Singer, 69 Wis. 392; Stiohter v. Cox, 52 Neb. 532; Sargent’s Adm’r v. Kimball’s Adm’r, 37 Vt. 320; Greene v. Dyer, 32 Me. 160; Ames v. Ames, 128 Mass. 277. The contract of subscription created a present debt in no wise resting in contingency. A call does not fix the liability, but only the time of its payment. Germania I. M. Co. v. King, 91 Wis. 139; Pittsburg & C. B. Co. v. Clarke, 29 Pa. St. 116; Grissell’s Case, L. R. 1 Oh. App. 528, 535; Cook, Stock, 105; Hatoh v. Dama, 101 U. S. 205. The complaint fails to allege a valid call. It does not set out a copy or the substance of any by-law of the plaintiff providing for making a call upon subscribers and the manner of giving notice thereof. Ger-mania I. M. Go. v. King, 94 Wis. 439, 442; Anvil M. Go. v. Sherman, 74 Wis. 226, 233; North Milwaukee T. 8. Go. v. Bishop, 103 Wis. 492; 1 Beach, Priv. Oorp. § 325, p. 528; Marker v. Mayor, 17 Wend. 199.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: La whence W. Halsey, Circuit Judge.</p> <p>After the decision of this case which is reported in 107 Wis. 19, a further hearing was had in the circuit court, in which the plaintiff added to his former evidence the testimony of a certain insurance agent, who testified to the obtaining of insurance by assignees and receivers during tbe years 1893 and 1894 to a considerable number; also that of four men who had been assignees in one or more assignments in Milwaukee during the same period, and who had themselves obtained insurance. The defendant offered the evidence of a very large number of insurance agents to the effect that it had not been customary with, them during those years to write insurance for assignees and receivers, and especially so under circumstances more or less resembling those in the present case. Those witnesses made various qualifications as to the uniformity of that custom under variant circumstances. The court found, among other things, that “ the testimony and evidence adduced on- the part of the defendants does not show that by ordinary diligence the said assignee could not have procured the consent of the insurance companies then carrying the said risk to a transfer of the existing policies to him as such assignee, or could not have obtained new insurance for the protection of the said creditors; ” also that, had he exercised due diligence, “ he would have been able to have kept or procured fire insurance upon said property prior to the date of the said fire on the 7 th day of July, 1894, to an amount exceeding the amount of such unpaid claims of said creditors.” Accordingly, judgment was rendered in favor of the plaintiff for the total amount due the creditors, together with interest from the time when the receiver’s accounts were settled, May 29, 1897, as a date at least prior to which such insurance could have been collected. Erom that judgment the defendant American, Surety Company appeals.</p> <p>They contended, inter alia, that in the first instance the burden of proving the assignee’s negligence, and that such negligence was the cause of loss to the plaintiff, was on plaintiff. He was not relieved of the ultimate burden by proving a jorima facie case. Atkinson v. Goodrich T. Co. 69 Wis. 5,17, and cases cited; Heinemann v. IIecvrd¡ 62 N. 448, 455; Lockwood v. C. c& N. W. R. Co. 55 Wis. 63-65/ Nichols v. Mun-sel, 115 Mass. 567; Jones, Ev. § 175; Tarbox v. Eastern 8. Co. 50 Me. 345; Nitro- Chjcerme Case, 15 Wall. 537.</p>

<p>Certiorari: Return: Sufficiency: Gonclusiveness: Officers: Removal by public board: Absence of member during investigation: Witnesses: Oath, when necessary: Cause for removal: “Misdemeanor.”</p> <p>1. On certiorari to review the action of a public board a supplemental return was made in response to an order of the court and in pursuance of a resolution of the board directing the pi'esident “ to sign said return for and in behalf of said board, and to cause said return to be duly and forthwith filed,” etc. There being no claim that the return was a forgery or was not made by direction of a majority of the board, it is held that evidence aliunde was inadmissible to show that it was not in fact the return of the board.</p> <p>2. On certiorari to review the action of the trustees of the Milwaukee public museum in removing the custodian, the return showed the adoption, by a two-thirds vote, of a resolution that “the evidence sustains the charges so far as to prove misconduct, incompetency, and inattention to the duties of his office on the part of the custodian.” The return also showed the result of the vote upon each of the several charges, although such votes did not appear in the records of the board, and stated that the resolution was adopted and the votes taken in secret session; that one of the trustees was the secretary and kept pencil memoranda showing the result of the vote on each charge; and that he prepared therefrom the record of such session as it was recorded in the record book of the board, believing that only the conclusions of the board were necessary, and destroyed the memoranda before the certiorari proceedings were commenced. The law did not require the board to keep a record of its proceedings. Held, that the return was not incomplete because of the absence of said memoranda, but was binding upon the relator, and could not be shown to be incorrect by affidavits of the minority of the trustees.</p> <p>3. Where in such a case the custodian might be removed by the trustees for cause, absence of one of the nine trustees during a portion of the investigation of charges upon which a removal was based does not invalidate such removal.</p> <p>4. Witnesses who appeared before the trustees on the investigation of charges against the custodian need not be sworn, there being no statute requiring it.</p> <p>5. Findings by the board of trustees that the custodian had been guilty of official misconduct toward the assistant custodian, that he had purchased books for his own personal use which were charged to the museum, and that he had presented to the finance committee and by deceit procured the allowance of a bill for freight on books, a large part of which belonged to him personally — are held sufficient to justify his removal under sec. 7, ch. 328, Laws of 1882, authorizing the trustees to remove the custodian “for misdemeanor, incompetency or inattention to the duties of his office.”</p>

<p> Contracts: Construction: Court and jury: Evidence. </p> <p>1. A written contract by which defendant agreed to pay to plaintiff, a carnival association, a certain sum for the privilege of publishing “The Official Souvenir Program of the 1899 Carnival,” is not am-. biguous or obscure, and its interpretation is for the court. It was improper, therefore, to admit evidence of the oral understanding of the parties or as to their personal interpretation of the contract.</p> <p>2. Such contract gave defendant the right to issue and publish the official program in such form and with such features as would induce people to purchase it as a souvenir of the occasion; and this right was not infringed upon by the publication, under authority from the association, of a list of the carnival events in a book descriptive of the city and its industries.</p>

<p> Building contracts: Construction: Option in specifications: Waiver. </p> <p>The specifications for the construction of a city hall provided, among other things, that “ proposals will be received for either steam or hydraulic elevators,” and stated certain requirements that must he met if steam elevators were used, and certain others that must he met if hydraulic elevators were used. Plaintiff bid a lump sum for constructing the entire building', including the elevators, but did not specify the kind of elevators he intended to instal, and his bid was accepted. The contract thereupon entered into pursuant to such bid made no specific reference to elevators. Held, that by failing to exercise the option in bidding which the specifications tendered to him plaintiff waived the same, and that he was bound to put in' either steam or hydraulic elevators as the city might elect.</p>

<p>Benefit societies: Appointment of beneficiary by will: Jurisdiction of county court: Waiver of by-law: Ultra vires: Obligation of beneficiary to pay debts of assured: Costs.</p> <p>1. By the terms of á benefit certificate the beneficiary was to be the friend of the assured whom he might designate in his last will. Meld, that if the beneficiary so designated is entitled to the insurance money he is entitled to it under the certificate, not under the will, and it is not properly a part of the estate of the .assured for administration in the probate court.</p> <p>2. The issuance of such a certificate was a waiver of any by-law of the insurer violated by naming as a beneficiary the person so designated, or by naming him in that manner.</p> <p>3. Even if the charter of the insurer required that the beneficiary be named in the certificate, that fact is not available to defeat a recovery by the beneficiary designated in the manner provided in the certificate, no statute or rule of public policy being violated by such designation.</p> <p>4. Where a benefit certificate provided that the beneficiary should be the friend of the assured whom he might designate in his will, and the will gave the insurance money to a person named, “ with the express understanding ” that he pay certain debts of the assured, the appointment was complete without payment of such debts; but the appointment and a realization upon the certificate carried therewith an obligation to pay the debts, which might be enforced by any one interested.</p> <p>5. In an action upon such a certificate by the beneficiary designated in the will of the assured, the money was paid into court and plaintiff’s right to it was contested by the personal representative of the assured, who claimed it as a part of the estate. Meld, that ‘upon a recovery by plaintiff he was entitled to costs payable out of the estate.</p>

Action to recover on a benefit certificate. The certificate was issued to Hugh McQuillan, payable to his wife, Rose McQuillan, if living at the time of his death.