Volume 113 — Wisconsin Reports

Halsey, Circuit Judge. Action to recover a balance claimed to be due plaintiff for official services as member of the board of review of the city of Milwaukee.

ITalset, Circuit Judge. On July 30, 1898, tbe Lange & Leibammer Manufacturing Company made a voluntary assignment to appellant, William A. Rdhr, wbo accepted said trust-and duly qualified as assignee. Thereafter Eiemer & Brodesser, as creditors, instituted proceedings before W. J. McElroy, a court commissioner, for an examination of tbe books and tbe officers of said assignor and others, under sec. 16935, Stats. 1898.

<p>Appeal from a judgment of the circuit court for Sheboy-gan county: Michael BÚRWAn, Circuit Judge.</p> <p>December 9, 1896, William Muenchow was an employee of the defendant in a tannery. His work was piling hides on a press and operating the press by means of machinery. Over the press and near where Muenchow was obliged to stand while at his work, and in dangerous proximity to him, was a revolving iron shaft. No instruction was given him regarding the dangers to be apprehended therefrom while in the performance of his duties. In some way he came in contact with the shaft and was wound about it and killed. His personal representative, duly appointed by the proper probate court, brought this action, stating as grounds for relief the above facts, and that Muenchow was not aware of the dangerous character of his work. The defense insisted upon, in the main, was assumption of the risk by Muenchow.</p> <p>The evidence was to the following effect: The bed of the press was about fifteen feet long by six feet wide. It was on wheels, the upper surface thereof being a few inches above tte floor. Tbe press was so arranged that it cotild be readily moved on a track back and forth, under a line shaft located about five and one-half feet above the foundation thereof. It was the duty of the press tender to pile hides on one end thereof, making a stack about five feet square and high enough to come up to within a few inches of the line shaft, then to place the press in position under the following-head and cause it to descend upon the stack by power transmitted from the shaft by a belt While.one stack of hides was in process of being pressed, the tender was required to make another on the opposite end of the press. His work brought him frequently so near the shaft that it was necessary to exercise considerable care to avoid coming in contact therewith. Hides were liable to be caught by the shaft and wound up .thereon. Muenchow was familiar with loading and operating the press, though it was not his regular work. He was assigned to that duty on the day in question because of _ the absence of the regular press tender. The shaft was about two . and one-half inches in diameter, and speeded at about ninety revolutions per minute. The stack of hides was constructed ready to be pressed, by laying them lengthways with the shaft. When the pile was built nearly to its proper height, it was necessary to slide the hides under the shaft, the tender standing on the bed of the press, or to pile them first on the one side, then on the other. Muenchow had worked in the tannery about three years. He was an.intelligent man who could be put to different kinds of work. He was perfectly familiar with the shaft in question, having been accustomed to oil the bearings thereof. The shaft might easily have been guarded so as to remove all danger of injuring the press tender. Muenchow was not warned in any way of the danger to be apprehended from the shaft. While at his work he became in some way attached to the shaft, wound up on it and killed. When his body was taken from the shaft a hide was found wound around it therewith.</p> <p>The jury rendered a special verdict consisting of fifteen questions. Omitting those which are unnecessary because they relate to undisputed facts, and those which are mere duplicates, and stating the rest in substance, we have the following as the verdict of the jury:</p> <p>(1) Was Muenchow’s working place, by reason of the unguarded shaft, not reasonably safe ? A. Tes.</p> <p>(2) Was the dangerous character of Muenchow’s working place the proximate cause of his death ? A. Yes.</p> <p>(3) Could a person of ordinary intelligence, possessed of the knowledge and experience of Muenqhow, reasonably have seen and understood the danger incident to the working place in question caused by the unguarded shaft? A. No.</p> <p>(4) What amount of money will compensate the widow of the deceased for the pecuniary loss she sustained by reason of his death ? A. $2,200.</p> <p>Defendant’s counsel moved the court for judgment notwithstanding the verdict, which was denied. They also moved the court for an order setting aside the verdict and granting a new trial for various reasons, and among them because the verdict was contrary to the evidence, which motion was denied. Judgment was rendered in plaintiff’s favor.</p> <p>To the point that the deceased assumed the risk they cited, besides cases cited in the opinion, Bhowalter v. Fairbanks> M. & Go. 88 Wis. 8Y6, 381; Peterson v. Sherry L. Go. 90 Wis. 83, 93; Gasey v. G., 8t. P.j M. & O. B. Go. 90 Wis. 113; Sladky ¶. Mari-nette L. Go. 107 Wis. 250, 261, and cases cited; Miellce v. G. & N. W. B. Go. 103 Wis. 1-5; Booney v. Bewail & Day G. Go. 161 Mass. 153; Johnson v. Ashland W. Go. 11 Wis. 51;. Hazen v. West Superior L. Go. 91 Wis. 208-211; Dahllce v. Illinois 8. Go. 100 Wis. 431, 435.</p>

<p>Appeal from a judgment of tRe circuit court for Eond du Lae county: Michael ERrwah, Circuit Judge.</p> <p>TRe appellant Raving Reen convicted Refore one of tRe justices of tRe peace of tRe city of Bipon, under an ordinance enacted in 1898 imposing a penalty upon “every person wRo sRall own or Rave in Ris possession in tRis city any unlicensed dog,” procured to Re issued from tRe circuit court for.Eond du Lac county a common-law writ of certiorari to review tRe validity of sucb judgment. Tbe justice made return of the proceedings, showing that appellant was arrested upon affidavit dated July 21, 1899, of one Patsy Eraun, not alleged to be an official or have any special authority, charging the relator with disobedience of such ordinance, in that, on July 10, 1899, he had in his possession in said city a dog on which no license had been paid for the current year; that, after plea of “not guilty,” by consent the matter was adjourned to July 25, 1899, on which day the plea of “not guilty” was withdrawn, and a motion made to quash the proceedings upon five different grounds, which were argued, and the motion overruled. Thereupon the complaint was permitted to be amended so as to allege that the damage was to the city of Ripon instead of to the affiant, when a recess was taten until 9 a. m., July 26th, leaving appellant in the hands of the officer. July 26th the trial of the case proceeded without a jury, and appellant was convicted, and adjudged to pay a penalty. This return was supplemented by a stipulation bringing in the ordinances of the city of Ripon material to the controversy. That city was incorporated by ch. 72, P. & L. Laws of 1858, and in 1894 adopted the general charter, and became a city of the fourth class thereunder. The grounds upon which the jurisdiction is assailed and further facts material thereto will appear by the opinion. The judgment of the justice was affirmed by the circuit court, and the relator appeals from such affirmance.</p>

<p> Justices' courts: Transcript of judgment: Striking out on motion: Garnishment: Payment of fees: Default judgment. </p> <p>1. After the transcript of a judgment rendered in justice’s court has been filed and docketed in the office of the clerk of the circuit court and the judgment has become in effect the judgment of that court by virtue of sec. 2900, Stats. 1898, the circuit court may, upon motion, order the transcript stricken from the files and strike from the clerk’s docket all entries relating thereto, if it appear from the record of the justice that he was without jurisdiction to enter the judgment.</p> <p>2. Under sec. 3781, Stats. 1898 (providing that a garnishee in justice’s court “shall not be bound to appear or answer unless his fees for travel and one day’s attendance shall first be paid”), and sec. 3728 (giving the justice authority to enter a personal judgment against the garnishee in case he fails to appear or appearing, fails to make full answer touching his liability), a justice has no power to enter a personal judgment against the garnishee, as for default, unless he has before him proof that all the conditions precedent -to enforcing attendance have been complied with.</p> <p>3. Where, in justice’s court, the return of service of process on a garnishee fails to show payment to the garnishee of his legal fees, a default judgment entered against the garnishee is without legal authority, and wholly insufficient to sustain a transcript thereof filed with the clerk of the circuit court.</p>

<p>Appeal from a judgment of the circuit court for Kewaunee ■county: Michael Kiewaw, Circuit Judge.</p> <p>Eor the appellant there was a brief signed by Wing & Wat-tawa, attorneys, and Nash & Nash, of counsel, and oral argument by A. L. Nash.</p>

<p>Appeal from a judgment of tbe circuit court for Fond du Lac county: Michael KjewaN, Circuit Judge.</p> <p>Tbe plaintiff city filed its claim in tbe county court of Fond du Lae county against tbe estate of one Charles Otto, deceased, to recover taxes alleged to be owing by said estate. Tbe claim was disallowed by tbe county court, and from sucb disallowance tbe city appealed to tbe circuit court, where tbe action was tried without a jury.</p> <p>Tbe facts were undisputed, and were found by tbe court substantially as follows: (1) That during tbe years 1896, 1897, and 1898, and up to April 6, 1899, Charles Otto was a resident of the city of Fond du Lac, and owned certain twenty shares of stock of tbe Calumet & Hecla Mining Company, also a mortgage for $700, and bank deposits in said city of $1,300, and that said Charles Otto died April 6, 1899; (2) that all of said personal property was omitted from assessment for tbe years 1896, 1897, and 1898 by mistake, and said Otto paid no personal property tax for said years; (3) that one C. H. Estabrooks was appointed special administrator of tbe estate of said Charles Otto, April 12, 1899, and ■on June 7, 1899, letters testamentary were also issued to said Estabrooks, and on August 9, 1899, be was discharged as special administrator, and is now acting as executor of said estate, and was during all of said, time a resident of tbe town of Fond du Lac, and not of tbe city; (4) that Estabrooks, as special administrator, received said personal property when appointed, and kept tbe same until be sold said mining stock, tbe latter part of May, 1899, at which time be paid over to tbe legatees under Otto’s will tbe proceeds of sucb sale, without any order of distribution by tbe court, and that no order of distribution of said estate bad been entered at tbe time of tbe trial; (5) that in 1899 tbe assessors of said city did not .place on tbe assessment roll any personal property belonging to .said estate before said roll was laid before tbe board of review; (6) that August 2, 1899, tbe board of review gave written notice> to said executor and to tbe beirs of said Otto of tbeir intention to assess said estate for tbe years 1896, 1897, and 1898 upon a valuation of $11,000, and thereupon, on August •5, 1899, said executor appeared before tbe board and stated under oath that said deceased owned said mining stock during five or six years before bis death, and that tbe witness bad sold tbe same for tbe sum of $16,000, and no other evidence was offered by the executor before tbe said board of review :on tbe subject, and no-other evidence as to tbe value of said mining stock was introduced; (7) that after bearing such •evidence, and some further evidence showing that Otto during .the years 1896, 1897, and 1898 owned a mortgage of $700, .and bank deposits of $1,300, said board of review on tbe 7th .of August, 1899, placed upon said assessment roll an assessment against tbe estate of said Otto for $9,000 for each of tbe years 1896, 1897, and 1898, intending thereby to assess said mining stock and.other property for said years; (8) that said assessment roll was not verified by tbe assessors by affidavit, •as required by sec. 1063, Stats. 1898, but that said affidavits have been signed by said assessors, and tbe oath in fact administered by tbe city clerk, but that tbe jurat bad never been signed by said clerk or by any officer; (9) that tbe evidence •does'not show that said property was assessed at more than its true value, nor that .the assessment exceeded tbe percentage upon which other personal property of like nature was assessed in said city for tbe years 1896, 1897, and 1898, nor •that tbe tax was unjust or inequitable; (10) that no tax for ■tbe year 1899 was levied or assessed by said city against said 'estate or said executor or special administrator; (11) that ■a tax was entered on the tax roll of 1899 against tbe estate of •Charles Otto as follows: Eor tbe year 1896, $270; for tbe year 1897, $270; for the year 1898, $315, — which tax has not been paid; (12) that a claim to recover said unpaid taxes was filed by the city against the estate of Charles Otto in the county court, and said claim was dismissed.</p> <p>The court concluded from these facts that the action of the-board of review was without authority of law, and that the pretended assessment of a tax based thereon was void; and judgment was entered dismissing the claim, with costs. From this judgment the plaintiff appeals.</p>

Action to restrain a railway company from appropriating tlie plaintiff’s lands, by -right of eminent domain, till compensation therefor should be paid as required by law.

Appeals from a judgment of tbe circuit court for Fond du Lac county: Michael KiewaN, Circuit Judge. This action is brought to recover damages for injuries claimed to have been sustained by plaintiff by slipping on a stone sidewalk in tbe city of Fond du Lac. Tbe defendants Welch and Mangan are made parties with tbe city as being tbe owners of tbe property in front of which tbe accident occurred.

<p> Municipal corporations: Street improvements: Special assessments: Contracts: Estoppel. </p> <p>1. Subd. 2, sec. 5, subch.. XI, of the charter of Fond du Lac (ch. 152, Laws of 1883), prohibits special assessments against abutting property owners for curbing, when such owners have formerly made any improvement of the same or similar kind or character. W., the owner of property on a street paved with cedar blocks and curbed with wood, signed a petition requesting its repaving with cedar blocks and agreeing to pay a proportion of the expense of constructing a stone curb. The city, after the circulation of a new petition calling for paving with macadam, which was not signed by plaintiff, paved the street with macadam and curbed it with stone. Held, that the original petition, until acted upon, was a mere offer to pay W.’s proportionate share of the cost of the curbing on the basis of a street improvement as therein specified, and, the subsequent action of the city being a substantial repudiation of such offer, that W. was under no legal or equitable liability to pay any part of the cost of such curbing, either on the theory of a contract, or es-toppel to deny liability therefor.</p> <p>2. In such case, in the absence of anything to charge the property owner with notice that the city intended to assess him for such curbing, mere silence, and failure on his part to -object to the improvement, does not estop him from denying liability therefor.</p>

<p>Appeal from a judgment of the circuit court for Crawford county: Geo. ClemeNtsoN, Circuit Judge.</p>

Olemektson, Circuit Judge. This is a statutory action to quiet title brought by the plaintiff, claiming to own a mortgage upon said real estate, for the purpose of obtaining a judgment declaring that the defendant’s testator, one J. W. Lybrand, now deceased, has no interest in said mortgage, and requiring said Lybrand to surrender and deliver up to the plaintiff the note which said mortgage was given to secure.

<p>Appeal from a judgment of the circuit court for Iowa county: Geo. Clementson, Circuit Judge.</p> <p>Action to recover compensation for slander. The slanderous utterances' claimed are as follows:</p> <p>(1) “You are a thief and a rogue, you cheated me out of more than one hundred pounds of oats,” meaning and being understood by said parties who were present and within hearing that when the plaintiff sold the defendant oats on the 17th day of February, 1900, that he, the plaintiff, sold him,. the defendant, more than one hundred pounds of rocks and sand for oats.</p> <p>(2) “Yon are like Stephen Nankee, who sold sand for wheat at Muscoda,” meaning and being nnderstood by said parties who were present and within hearing of said defendant that he, the plaintiff, sold him, the defendant, sand for oats.</p> <p>(3) “Yon are a thief and yon stole my oats,” meaning and being nnderstood by said parties who were present and within hearing of said defendant, that he, the plaintiff, stole oats from him, the defendant.</p> <p>The answer contained a general denial. It also contained an admission that at the time alleged in the complaint defendant charged plaintiff with haying intentionally sold him rocks for oats. In connection with such admission defendant alleged that such charge was made in view of circumstances substantially as follows: Two days before the occurrence mentioned in the answer plaintiff sold defendant some oats. The grain was weighed with the wagon, at which time, without the knowledge of defendant, there were some rocks in the wagon under the bags of oats, and there was also in the wagon box a bag of some material not included in the deal, said rocks and partly filled sack being in the wagon to the knowledge of plaintiff. Before the empty wagon was weighed, plaintiff removed the rocks therefrom.</p> <p>On the trial there was evidence tending to show that at the time and under the circumstances alleged in the complaint, defendant called plaintiff a thief, but did so under such circumstances as to clearly indicate that he meant only to charge plaintiff with having committed the wrong mentioned in the answer. Plaintiff testified that when on his way to market with the oats one of his wagon tires came off; that he picked up two rocks in or near the road and used them in putting the tire on; that he was .obliged to lighten the front end of his wagon by moving the grain sacks back, in order to put tbe tire in place, and that be deposited tbe rocks in tbe wagon box, thinking be might need them again, which be did before selling tbe oats to defendant; that after unloading tbe grain and weighing tbe wagon, be used tbe rocks a third time as before, and then thoughtlessly threw them on tbe ground; that when tbe wagon was weighed tbe second time everything was in it not theretofore delivered to defendant except tbe rocks; that on tbe following day be received bis pay for tbe grain at tbe place where tbe same was left for him by defendant; that it was short to some extent ; that on tbe following day be met defendant in a saloon, other persons being present, at which time defendant said in tbe bearing of such persons:</p> <p>“You are a thief and a rogue, you cheated me out of more than one hundred pounds of oats. You are like Stephen Nankee who sold sand for wheat at Muscoda. You are a thief and you stole my oats.”</p> <p>■ Such persons, or some of them, testified that defendant charged plaintiff with selling rocks for oats. On tbe whole, looking at tbe evidence as unfavorably as one reasonably can for defendant, it only tends to prove that on tbe occasion in question be publicly declared that 'plaintiff committed a fraud upon him in respect to tbe weight of oats sold to him as aforesaid, and did so by means of weighing some rocks .and a bag of material not in tbe deal with tbe oats.</p> <p>Tbe court instructed tbe jury that to say that a man is a thief is slander, and that if they were satisfied from the preponderance of tbe evidence that defendant charged plaintiff with being a thief, tbe latter was entitled to recover such sum as would justly compensate him for tbe injury to bis feelings and tbe indignity put upon him thereby. Tbe jury rendered a verdict in plaintiff’s favor for $150. Proper exceptions were taken to preserve for review, among other questions, that of whether tbe trial court erred in charging tbe jury that if they were satisfied from the preponderance of tbe evi-deuce that defendant called plaintiff' a thief, the latter was entitled to recover.</p>

<p>Appeal by defendant from an order sustaining demurrer-to county:- Geo. ClemeNtsoN, Circuit Judge.</p> <p>Appeal by defendant from an order sustaining demurrer to-its answer. By the complaint and answer it appeared that the defendant issued its policy of life insurance for $1,000' to one Wiliam Cowduroy, payable upon his death to his wife, Elizabeth A. Cowduroy, for her sole use, if living, and, if' not living, to the children of said William Cowduroy, or their guardian for their use, or, if there he no such children surviving, then to the executors, administrators, or assigns of' said William Cowduroy, in sixty days after notice. The wife, Elizabeth, died some years before her husband, leaving their two children, Elizabeth and Henry Cowduroy. The daughter, Elizabeth, married one Morrison, and had issue,— one son, William Cowduroy Morrison, — and then died during the lifetime of her father, the assured. At his death he-left surviving one son, Henry Oowduroy, besides his grandson, the son of said daughter Elizabeth, whose guardian is the present plaintiff. Upon due proofs, defendant paid the entire amount to the son, Henry Cowduroy. There are no allegations as to the settlement or assignment of the estate of the daughter, Elizabeth.' To this state of facts the plaintiff demurred as not sufficient to constitute a defense.</p>

<p>Certiorari: Chamber orders: Adequate remedy: Practice.</p> <p>1. A common-law writ of certiorari will not issue wlien títere is an adequate remedy by appeal or otherwise.</p> <p>2. Petitioner was brought before the circuit judge at chambers in habeas corpus proceedings, and, on being remanded, applied to the supreme court for a writ of certiorari. Held, that the application should be denied, as petitioner had an adequate remedy by application to the circuit court to review such order, and then, if adverse to petitioner, under sec. 3043, Stats. 1898, a writ of error could issue to review the order of the circuit court affirming the order made at chambers.</p>

<p>Appeal from a judgment of the circuit court for Iowa county: Geo. OlemeNtsoN, Circuit Judge.</p> <p>This action is based upon the same subscription paper mentioned in Hodges v. Nalty, 104 Wis. 464.. It is brought to recover the amount subscribed by the defendant toward the building of a church in the parish where he officiated as priest. The plaintiffs are the building committee, suing in behalf of all others interested. Their old church had been burned. Soon thereafter the defendant erected a small cbapel at his own expense for the congregation^ to occupy until other arrangements could be made. In January, 1892, the congregation was assembled, which elected the plaintiffs, the defendant, and others as a building committee, and directed them to take charge of collections and select plans for a new church. The committee had various meetings, and voted to build a church costing not less than $10,000, and, if that sum was not collected, the subscriptions taken were to be null and void. A subscription paper was passed around among the committee, and various amounts were subscribed. The defendant signed for $1,500. As a consideration therefor, the plaintiffs claim that it was then agreed that the defendant should be paid the sum of $237, which represented his cash outlay in building the chapel mentioned. This sum was afterwards paid defendant. On February 1, 1892, defendant executed his two promissory notes to the treasurer of the society for $750 each, payable July 1st and January 1st following, with six per cent, interest after due, and payable at the Citizens’ Bank, Monroe, Wisconsin. Many of the other subscribers executed similar notes. The com-, mittee, with the defendant, entered into an active canvass for funds. The plaintiffs claim that .it was continued until a sum was raised sufficient, with the insurance money from the old church, to amount to over $11,000. The church was built during the fall of that year, and the plaintiffs insist that the defendant should now pay his subscription. The complaint sets out the history of the different transactions as herein stated, and alleges that defendant regained possession of his said notes without consent, and now refuses to pay the same, or any part of his said subscription. The answer contains many specific denials, and sets out as a defense that the scheme to build the church was merely tentative, and all subscriptions were made upon the understanding that they were void unless $10,000 was subscribed and collected; that an active canvass for funds was made, and they were only able to secure about $6,000, whereupon the project for building the church was abandoned, and his notes were given up. About July 1st defendant was transferred to another parish, and had nothing more to do with the project, and thereafter his successor instigated and carried out a new scheme for building a church without reference to the defendant’s liability on said notes or subscription paper.</p> <p>A trial by jury resulted in a special verdict to the effect that:</p> <p>. (1) That defendant did not notify the committee or the congregation that he refused to be bound by his subscription prior to their incurring liability in reliance thereon. (2) That defendant made his subscription and gave the two notes upon an agreement that, if he subscribed $1,500, he should be paid out of the church funds the sum of $231 he had expended in the erection of the temporary chapel. (3) That the said subscription and the notes were not made independent of the payment to defendant of said sum of $237. (4) That the subscription (including the unexpended insurance money) did not reach the sum of $10,000 at any time before the defendant severed his connection with the congregation. (5) That when defendant took his notes he intended to withdraw his subscription. (6) That the building committee did not consent to such withdrawal. (7) Damages, $1,500. Answered by the court by consent of counsel.</p> <p>The court refused to submit a question requested by defendant, as follows:</p> <p>“At the time the defendant secured possession of the notes sued on in-this action, had the project to build a new church and to raise money therefor, in pursuance of which the defendant subscribed to the building fund and gave such notes, been given up by the building committee and congregation, and the subscribers released ?”</p> <p>After the jury had been out over one night, they returned into court, and desired further information regarding evidence. The court informed them it was impossible to pide ant different items of evidence, and in urging them to agree used the following language to which defendant’s counsel took exception:</p> <p>“You have already seen that attorneys from a distance have been called in at very considerable expense to the parties.”</p> <p>“You know also that a large number of witnesses from a distance have been in attendance at considerable expense.”</p> <p>“You know that the case has dragged through three days.”</p> <p>“You may not know, hut it is true, that every day that this court sits costs this county $100. Every five minutes this court is in session costs this county one dollar. Now, this case has cost this county pretty well onto $300 for jurymen and court officers. It has cost the parties a great deal for attorneys and for witnesses.”</p> <p>“It will have to he decided by a jury, and you are just as intelligent a jury — and you know that yourselves — as could he gotten together, probably, to try this case either at this term or the next, and it is very important, indeed, that this county and the parties should not he put to the expense of retrying this case. . No twelve men can settle it better than you, and you well appreciate the necessity that is upon me in asking you to struggle with this case further until you come to an agreement.”</p> <p>“Because, if you cannot agree, and this case has to he retried at the next term of court, it costs Iowa county between two and three hundred dollars, to say nothing of the other expenses.”</p> <p>“I trust, therefore, gentlemen, that after again retiring you will make further efforts, and come to an agreement.”</p> <p>Several motions by defendant for judgment, to strike out the answers to questions 1, 2, 3, and 6, and for judgment, and to set aside the verdict, and for a new trial, were each denied, and duly excepted to. Judgment was entered for plaintiffs, from which this appeal is taken.</p>

<p>Appeal from an order and judgment of tbe circuit court for Grant county: Geo. ClemeNtsoN, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Rich-land county: Geo. ClemeNtsoN, Circuit Judge.</p> <p>This is an action at law to recover alleged illegal taxes which were paid under protest. The action was tried by the court without a jury. The evidence showed that prior to March 5/1898, the plaintiff, an old gentleman of the age of seventy-one years, owned a valuable farm in the defendant town, and upon the last-named date deeded the same to his son Albert S. Marsh, who returned to his father and mother a mortgage thereon, conditioned to perform the obligations of a certain contract and bond of the same date. The contract referred to was executed by Albert S. Marsh and Clara Marsh, his wife, to Stephen B. Marsh and Rebecca Marsh, and by its terms the said Albert S. Marsh and Clara Marsh, in consideration of the transfer of said farm, which was recited to be of the value of $8,000, bound themselves to provide for and support said Stephen B. Marsh and Rebecca Marsh during their lives, and for such purpose to furnish each year to said Stephen and Rebecca the sum of $400 while they or either of them lived, and, in case said sum should be insufficient, by reason of sickness, for their support, then to advance a sufficient sum additional to cover all expenses of maintenance, medical care, and attendance. Said contract further provided that after the death of boto Stephen and Rebecca, Albert should pay $2,000 to James A. Marsh, a brother, $2,000 to Margaret R. Elliot, a sister, and $1,000 each to Earl B. and Bessie M. Elliot, children of a deceased sister; all to be paid within one year after toe death of the survivor of -the said Stephen and Rebecca Marsh. The bond aforesaid was in the penal sum of $8,000, and was conditioned to perform the obligations of the contract, and was signed by Albert S. Marsh and Clara Marsh. In May, 1899, the assessor of toe defendant town applied to Stephen Marsh for a statement of his taxable property, and he made a statement thereof in which he placed the value of his horses at $40, cattle $42, swine $75, moneys, accounts, notes, 'and mortgages $200; being a total of $357. Tbis statement was accepted by tbe assessor, and the plaintiff was assessed the sum of $357 upon the assessment roll. The board of review gave the plaintiff due notice of their intention to raise said assessment, and the-plaintiff appeared, and produced before the board the mortgage, contract and bond aforesaid, and was examined by the board, and thereupon the board raised his assessment of personal property to $2,157. TJpon this valuation the plaintiff’s taxes amounted to $44.56, which was $37.10 in excess of what they would have been had the valuation remained the same as the assessor placed it. The court made findings in substance as follows: (1) That the plaintiff was a resident of the defendant townj (2) that in May, 1899, he was examined under oath, and made a true statement in writing of his personal property liable to taxation, showing the value thereof to be $357, which was accepted by the assessor of said town; (3) that thereafter the board of review added to the assessed valuation $1,800, and that the town treasurer collected thereon the sum of $44.56, which was $37.10 in excess of the plaintiff’s equitable share of the town tax; (4) that said sum of $44.56 was paid by the plaintiff involuntarily and under protest; (5) that the plaintiff’s claim was duly presented to the town board of audit more than ten days before the commencement of this action and rejected. Upon these facts the court found that the plaintiff was entitled to a judgment for the said sum of $37.10, and for costs. Judgment being rendered in accordance with such findings, the defendant appeals.</p>

ClemeNtsoN, Circuit Judge. Appeal from a judgment in favor of plaintiffs on an insurance policy, rendered in tbe circuit court for Crawford county. Tbe defense, in tbe main, was noncompliance witb tbe following condition of the insurance contract: “All premiums are payable at tbe borne office in Hartford, Connecticut, but will be accepted if paid to an agent in exchange for a receipt signed by its president or secretary and countersigned by tbe agent designated tbereon.

<p>Slander: Pleading: Ambiguity: Demurrer ore tenus: Evidence: Conditional privilege: Improper remarles of counsel: Motion in nature of motion for rehearing, when may be made: Excess in money judgment: Correction on appeal without new trial: Motion: Delay attributable to court: Death of party: Judgment mine pro tune.</p> <p>1. Where in tho complaint in an action for slander the translation of alleged defamatory words was ambiguous hut the objection was raised for the first time by a demurrer ore tenus interposed after two witnesses, including defendant, had been examined, whose testimony, as well as the allegations of the answer, tended to remove the ambiguity, the objection was properly overruled. Under such circumstances the pleading should he deemed to be amended so as to conform to the facts, or the defect should be disregarded.</p> <p>2. In an action for slander in stating that plaintiff, an unmarried woman, was pregnant, evidence of statements of defendant in regard to plaintiff's chastity, other than those upon which the action is based, are admissible upon the question of malice.</p> <p>3. Communications between members of tbe same Catholic church relating to the chastity of the priest’s housekeeper, an unmarried woman, are not conditionally privileged, as against her.</p> <p>4. The facts that the defendant in an action for slander permitted judgment to be taken against him by default, and that the default was subsequently opened and the defendant permitted to answer, have no bearing upon the issues raised by the pleadings. Persistent references to such facts by plaintiff’s attorney in his argument to the jury, after the trial court had repeatedly ruled that they were improper, and persistence in a series of irrelevant questions, some of which related to the default, and to some of which he obtained answers well calculated to arouse the prejudice and passions of the jury against the defendant, are held so prejudicial to defendant as to require reversal of a judgment in plaintiff’s favor.</p> <p>On motion: Syllabus by Mabshaix, X:</p> <p>5. Supreme Court Rule XX, in regard to the time within which a motion for a rehearing must be made and submitted and the manner thereof, relates to a motion for a rehearing strictly so called, — a motion for a reconsideration of matters appearing-in the record, covered by or which might or ought to have been covered by the previous hearing, not to a motion to change the judgment here rendered for some other cause, ordinarily made at the bar of the court. A motion of that kind is called “a motion in the nature of a motion for a rehearing,” and it may be made and submitted at any time after judgment while the court is in possession of the record pursuant to sec. 3071, Stats. 1898.</p> <p>6. The rule that, upon reversing a money judgment in this court, where there is no question as to the right of the losing party here to recover, and the only error found in the record calling for a reversal is that the judgment, for some reason, is too large, the court may name a sum which in its judgment will cure the error and allow the respondent to have judgment for that sum and thereby end the litigation, is not confined to cases where the amount to which the respondent is entitled can be ascertained to a mathematical certainty by computation,. but applies to all cases where the circumstances requisite to the application of the rule exist.</p> <p>7. The circumstances referred to in the foregoing paragraph are: First, a clear right to recover judgment for money damages; second, no error found in the record requiring correction except as to the amount of the recovery appealed from; third, a situation where the amount to which the respondent is entitled is sufficiently clear that the court can name a sum for which he may take judgment which, to a reasonable certainty, will he as low as any that could probably be expected to result from a new trial.</p> <p>8. Where all the circumstances, as before indicated, clearly appear, there is no reason why the error which made the appeal proper or necessary should not be so cured and the controversy put forever at rest without a new trial. No application by counsel for the losing party on the appeal is necessary to set such rule in motion. The court may and ought, in furtherance of justice, to apply the rule on its own motion, granting a new trial and imposing upon parties the vexation and expense of further litigation only when such a course is necessary. Sec. 3071, Stats. 1898.</p> <p>9. Where a judgment for plaintiff in an action for slander is reversed solely because of improper prejudicial remarks of his counsel to the jury, which may probably have resulted in a larger verdict than otherwise would have been rendered, the rule above stated should be applied, and a new trial prevented if plaintiff will consent thereto.</p> <p>10. Where, after a cause has been submitted for decision, one of the parties to the litigation dies, and the delay during which death occurred is attributable directly or indirectly to the court, it may render judgment as of the time when both parties were alive, and that rule applies to a cause of action which does not survive as well as one that does.</p> <p>11. It is requisite to the application of the rule last stated that, at the time of the death of the party, the cause was in such a situation that judgment might have been rendered without any further trial or proceeding in the nature thereof, and that the delay during which death occurred was in some way attributable to the law as administered by the court.</p> <p>12. Where, upon the reversal of a cause for no' other reason than that the verdict of the jury was too large, and according to the practice of the court the losing party should be permitted to take judgment for such sum as, in its judgment, will cure the error, and the court omits to provide therefor, and one of the parties dies while the court yet has possession of the cause, it may, while its jurisdiction continues, • cure such omission and permit judgment to be taken as it might have done, as of the time when both parties were living.</p>

<p>Appeals from a judgment of the circuit court for Clark county: W. 0. SilveRThobn, Judge.</p> <p>This case came to this court in 1896, and may be found reported in 93 Wis. 294. The judgment was reversed, and the cause was remanded, with directions to take a reference as therein prescribed, and to ascertain the state of the account between the parties under the contract set out in the 'Complaint. The opinion, determines certain of the claims made by defendants, and leaves to be ascertained what sum should be deducted from the amount due the plaintiff for failure of title to certain lands, a list of which accompanied the mandate. The facts of this litigation sufficiently appear in the former report. Upon the return of the record to the lower court a reference was granted, and a hearing had before a referee. Findings were made which were unsatisfactory to the plaintiff, and upon his application the case was re-referred, and further testimony taken. The result was that the referee increased the aggregate valué of all the land from ■$39,107 to $40,947, leaving his other findings substantially as before. Exceptions to the findings were filed by plaintiff, and upon the. hearing before the court the findings were modified to some extent, as herein noted.</p> <p>The court’s findings were, in effect, as follows: (T) The aggregate value of the entire tract of land was fixed at ;$45,000, instead of $40,947, as found by the referee. (2) 'The total value of the lands in the “Defective list,” including ten forties known as the “Atlee lands,” was $6,049, the same as found by the referee. (3) Of the whole value of the lands •embraced in the suit, 13.4422 per cent, were defective in title, instead of 14.7727 per cent., found'by the referee. (4) The deduction to be made from the $45,000 purchase price on account of defective titles was $6,049, instead of $6,647.72, as found by the referee, with interest for six years, amounting in all to $8,445.90, instead of $9,282.03, as stated in the referee’s report. (5) On the trial before the referee the defendants tendered plaintiff .a quitclaim deed of lands the title to which had been found defective, and covering the lands which should be so quitclaimed, pursuant to the directions of the supreme court in this cause. (6) Defendants selected S. E. S. E. 30 — 27—4 as the extra forty to make up the 800 acres mentioned in the former opinion. (7) De^ fendants bad sold timber on certain of. the lands ordered' quitclaimed:</p> <p>Nov. 27, 1894, to McTaggart. $ 60</p> <p>Dec. 27, 1895, to Procfc.i- 30</p> <p>July 9, 1892, to John & Steinert. 568</p> <p>Dec. 1, 1895, to Bucher... 85</p> <p>Jau. 15, 1897, to Smith & Johnson..-. 56</p> <p>Oct. 10, 1896, to Smith & Johnson. 144</p> <p>Total . ?943</p> <p>—(8) Expense of estimating lands from wbicb timber was. sold, mentioned in seventh finding, was.$13.20. (9) Of the lands in the “Defective list,” the “Atlee lands,” and S. E. S. W. 34-25-2, and lot 7, 27-24-2, have been sold by the defendants; but the time when sold, and the amount received therefor, do not appear dearly in the evidence., (10) The title to seven forties (describing them) was perfected by defendants at an expense to them of $78.08. . (11) .That defendants paid taxes on lands to which title was defective amounting to $670.87 for principal, with interest “(amounting to $966.03, as stated in the referee’s report)”. (12) Defendants paid for tax-deed fees, etc., including interest to October 1, 1897, $34.39;</p> <p>As conclusions of law the court found: (1) The plaintiff ■was entitled to recover the balance of unpaid purchase money for the lands, $22,500, without interest, and $187.37 redemption money received by the defendants for taxes on the “Atlee lands,” reduced by the total amount of the several items found in favor of defendants. (2) Plaintiff was further entitled to the $943 received by defendants for timber sold, mentioned in the seventh finding, but without interest, as defendants were expending about an equal amount for taxes, as found in the eleventh finding. (3) That defendants were entitled to have credit for the value of the lands in the defective list, as stated in finding 2, amounting to $6,049, principal, and interest, $2,185.18,— in all, to $8,445.90. (Note. The figures as to the amount of interest are wrong. The amount should hay© been $2,396.90.) (4) Defendants were entitled to allowance of $13.20 mentioned in eighth finding. (5) The plaintiff was not entitled to anything upon the ninth finding, for want of evidence. (6) Defendants were entitled to an allowance of $78.08 as stated in the tenth finding, but without interest, because of mutual expenditures mentioned. (7) Defendants were entitled to the allowance of $679.87, without interest, for taxes, etc., mentioned in finding 11. Interest was not allowed on this item because no interest was allowed on the amount due plaintiff mentioned in finding 2. (Note. In the statement made by the court in conclusion 12, hereinafter referred to, this item was allowed at $966.03, which includes interest amounting to $286.16.) (8) Defendants are entitled to the allowance of $34.39 as mentioned in finding 8. (9) Defendants are allowed, as directed by the supreme court, $5,080 on defect in .titles under the 800-acre clause in the contract, with $859.35, interest from November 1, 1890, to April 1, 1893, at seven per cent, (two.years and five months), and also $1,092.20, interest at six per cent, to November 1, 1896 (or three years and seven months), being interest for six years in all; total principal and interest being $7,031.55.- (Note. The court evidently made a mistake as to the time from which interest was to be computed. As shown by the former decision, plaintiff was to have until August 15, 1889, to make title to 'the land. Interest should have been computed from that date to April 1, 1893, the time the rate was changed by law, at seven per cent, for three years seven and one-half months, and for two years four and one-half months at six per cent., to make the full period of six years. This makes a difference of $61.37 in favor of defendants.) (10) The defendants are to be allowed, as directed by the supreme court, $4,000 for timber sold by plaintiff to the Northwestern Lumber Company, together with $676.65, interest from November 1, 1890, to April 1, 1893 (two years and five months), at seven per cent., and alsb $860 interest from April 1, 1893, to November 1, 1896 (three years and seven months), at six per cent., being interest in all for six years; principal and interest being $5,536.65. (11) Defendants should be allowed $206.93, as directed by the supreme court, paid to redeem lands from tax sale, without interest. (12) “That the computation upon which the amount of the judgment is made stands as follows:</p> <p>“Credits Allowed Plaintiff.</p> <p>Balance of purchase money.$22,500 00</p> <p>Allowance for amount received by defendants on the Atlee</p> <p>lands on settlement . 120 36</p> <p>Allowance for timber sold from lands on “Defective list” 943 00</p> <p>Total allowance to plaintiff.$23,563 36</p> <p>For principal and int. allowed defts. on “Defective list”.. $8,445 90 For item allowed defts. under fourth conclusion of law.... 13 20</p> <p>For item allowed defts. under sixth conclusion of law.... 78 08</p> <p>For item allowed defts. under seventh conclusion of law.. 966 03</p> <p>For item allowed defts. under twelfth conclusion of law [should have been eighth].:. 34 39</p> <p>For item allowed defts. under ninth conclusion of law.... 7,031 55</p> <p>For item allowed defts. under tenth conclusion of law.5,536 65</p> <p>For item allowed defts. under eleventh conclusion of law.. 206 93</p> <p>Total allowance to defendants.$22,312 73</p> <p>Balance in favor of plaintiff. $1,250 63”</p> <p>—(13) The quitclaim deed tendered by defendants was sufficient. (14) Plaintiff was entitled to judgment for the sum of $1,250.63, without interest, and without allowance of costs to either party, except that plaintiff was to pay the costs of reference.</p> <p>The plaintiff filed exceptions to the first, second, fourth, and ninth findings of fact, and to all of the conclusions of law. The defendants excepted to the first, second, third, fourth, and seventh findings of fact, and to all of the conclusions of law, except the fourth, fifth, ninth, and thirteenth.</p> <p>Prior to the making of tbe findings by tbe court tbe plaintiff made a motion to be permitted to rescind tbe contract involved in tbe suit, and that tbe defendants be required to -reconvey all lands conveyed to them by tbe plaintiff. Tbis .■motion was denied.</p> <p>Judgment was entered as directed, and both parties bave .•appealed,</p>

Suit for specific performance of contract made November 20, 1884, between tbe parties, recognizing application by tbe defendant, and consent by tbe plaintiff, that tbe former should cross tbe tracks of tbe latter at a point designated, near Ean Claire, upon tbe following terms and conditions: “First. Tbe cost of making and maintaining said crossing shall be wholly paid by tbe party of tbe second part, and said crossing shall be made and maintained in tbe best manner. “Second.

<p> Undertaking: Reformation: Supplying omissions: Pleading: Prejudicial error: Sheriffs: Officers: Execution against the body: Return. </p> <p>1. An undertaking to discharge a defendant from arrest, which gives the title of the case, and recites that the defendant therein had been arrested, and that he as principal and certain others as sureties undertook “that the said-shall at all times render himself amenable to the processes of the court,” furnishes the means of supplying the missing word with absolute certainty and needs, no reformation.</p> <p>2. The complaint in an action on such undertaking stated two causes of action, one seeking a reformation of the undertaking and recovery thereon as reformed, and the other seeking a recovery as though it needed no reformation. A demurrer to each cause of action being overruled, the defendants answered, and a trial was had which resulted in a verdict for plaintiff. Held, that since the undertaking needed no reformation, it was error to overrule a demurrer to that cause of action, but, that under the provisions of sec. 2829, Stats. 1898, requiring tlie court to disregard any error not affecting substantial rights, the error was not prejudicial.</p> <p>3. A complaint on an undertaking given to discharge a defendant from arrest, alleging that such undertaking was filed in the proper office by the plaintiff, plainly .infers that the plaintiff accepted the bail, and is sufficient although it does not allege, as required by sec. 2702, S. & B. Ann. Stats., that the sheriff delivered to the plaintiff the order of arrest with his return indorsed thereon, together with a certified copy of the undertaking.</p> <p>4. The provisions of sec. 2970, S. & B. Ann. Stats., that every execution shall be returned within sixty days after its receipt by the officer, applies to executions against the body as well as against property.</p> <p>5. An execution against the body of defendant was issued May 28th, and on June 18th following, the sheriff made return thereon “not found.” Held, that if the officer acted in good faith and on sufficient knowledge, he might return it before the expiration of sixty days after its receipt.</p>

<p>Appeal from judgment of tbe circuit court for Clark county: W. C. SilvebthobN, Judge.</p> <p>This action was commenced March 21, 1898, by the plaintiff, as assignee of George Huntziclcer, to set aside certain conveyances and transfers made by the assignor to his children in September, 1893. The defendants severally answered by way of admissions, denials, and counter allegations. At the close of the trial the court found, as matters of fact, in effect: (1) That November 3, 1891, George Ilwvbzicher made a voluntary assignment of all his property for the benefit of his creditors to one-John Huntzicker, (2) who qualified as such assignee and entered upon the execution of his trust. (6) That at that time he was indebted in a sum in the aggregate far exceeding the amount of his assets. (3) That November 14, 1898, John Huntzicker was duly removed from his trust as such assignee, and the plaintiff, E. E. Groclcer, was thereupon appointed in his place as assignee of George Huntziclcer, (4) and as such commenced this action, and has continued as such assignee. (5) That the property received by the plaintiff as such assignee from the estate of George Huntziclcer did not exceed $500. (7) That claims to the amount of more than $25,000 have been proved against the estate of George Huntziclcer, (8) the greater portion of which are based upon liabilities which existed prior to September 9, 1893. (28 and 29) That the greater portion of the debts' so proved was for the liabilities arising on account of his having indorsed and guaranteed notes of the Neillsville Manufacturing Company to the Clark County Bank and others prior to September 9, 1893, and which notes had from time to time been renewed, and the several renewals indorsed or guaranteed by George Huntziclcer; that such liability of George Huntziclcer was. contingent September 9, 1893, and has since become absolute by the proof of such claims and the entry of judgment; that the manufacturing company has been insolvent ever since September, 1893,. and there are no assets of that company to satisfy such indebtedness. (10) That September 9, 1893, George Huntziclcer was a stockholder in the Neillsville Manufacturing Company, and had been one of the promoters thereof; -that that company had then been doing business for several years, but had never declared any dividend or made any money; that September 9, 1893, it owed the Clark County Bank upwards of $40,000; that George Huntzicker was liable as indorser or guarantor upon all of said indebtedness, and was also indebted to a considerable amount on other obligations; that he then believed the company would never be able to meet its obligations on such indebtedness, but that he would ultimately be called upon to pay the same. (9) That September 9, 1893, George 'Huntzicker was the owner of a farm described, containing 440 acres of land, (11) which on that day he and his wife conveyed to their daughter, the defendant Mary E. Broóks, and which deed was thereupon recorded. (12) That the value of the farm at the time was $12,000. (13) That on the same day he sold and transferred to Mary E. Brooks all the farm machinery, horses, cows, farm implements, and a one-half interest in all young stock on the farm. (14) That the value of such personal property was at the time $750. (15) That the consideration for such conveyance and transfers was very inadequate, and much less than the value of the property, and the same was made upon an express agreement between the parties whereby a secret trust was reserved in George Huntzicker, by the terms of which the grantor reserved the right to use and occupy the farm, and the right to use the personal property without accounting to Mary E. Brooks therefor. (16) That such agreement was actually carried out by the parties, and George Huntzicker and wife continued to have and enjoy, use and occupy, the farm from September 9, 1893, until March, 1899, and the personal prop* erty from September 9, 1893, to November 1, 1897, two days before making the assignment. (17) That such conveyance and transfers of the farm and personal property were made with the intent and purpose on the part of George Hunt-zicker and wife to hinder, delay, and defraud his creditors of their lawful claims and demands; (18) and that Mary E. Brooks received the same with knowledge that the same was conveyed and transferred to her for the purpose of placing such property beyond the reach of the creditors of George Huntzicker, and that she participated in such fraudulent intent. (19) That September 12, 1893, George Huntzicker, being the owner of certain lots in NTeillsville, described, (20) with his wife, conveyed the same to their son, the defendant Erante Huntzicker, by deed, which was on that day recorded. (21) That such conveyance was made voluntarily and without consideration, and for the purpose of placing said property beyond the reach of the creditors of George Huntzicker, and for tbe purpose of hindering, delaying, and defrauding them. (22) That Frank Huntzicker at tbe time knew of such intent and purpose, and participated therein, and received the property for the purpose of holding the same in trust for the use and benefit of George Huntzicker, and thus hinder, delay, and defraud his creditors. (30) That October 9, 1896, at the request of George Huntzicker, the defendants Mary F. Brooks and her husband executed a mortgage on 120 acres described (being a portion of said farm) to one Ida Lowe for $1,000, and which mortgage was recorded, and the $1,000 realized therefrom was paid on one of the debts of George Huntzicker. (23 and 25) That October 26, 1891, Mary H. Brooks and her husband mortgaged the other 320 acres of said farm to Scott, Tiffany & Paul for $5,000, which amount was received by Mary B. Brooks, and by her paid over to her husband, Walter G. Brooks, the defendant herein, and by him used and disposed of, and the mortgage was duly recorded. (24) That said mortgage was so given at the time when an execution was in the hands of the sheriff of Clark county, in the ease of the Eirst National Bank of Winona against George Huntzicker and others, and with knowledge on the part of Walter G. and Mary F. Brooks that the sheriff had threatened to levy upon the property of George Huntzicker, and was given by them for the purpose of further hindering, delaying, and defrauding the creditors of George Huntzicker in the collection of their debts. (26) That November 1, 1897, and two days prior to the making of such assignment, and in contemplation thereof, Mary F. Brooks, claiming and pretending to be the owner of the personal property so transferred to her by her father September 9, 1893, and the increase thereof, with the aid of her father and mother and husband, and for the purpose on the part of all of said persons of placing said personal property beyond the reach of George Huntzicker3s creditors, and preventing his assignee thereafter to be appointed from getting possession thereof, made sale of what remained of snob stools to the defendant John Shanks, who at the time knew that George Huntzicker was insolvent, and that John Shanks received the property with actual knowledge of the intent withi which the same was sold to him, and conspired with such defendants in the fraudulent purpose to save the proceeds of the. property for the benefit of George Huntzicker, and to hinder, delay, and defraud his creditors, and that the proceeds-of such sale ($460) came into the hands of George and Margaret Huntzicker and Mary E. and Walter 0. Brooks, and the property so fraudulently conveyed into the possession of J ohn Shanks, and the same was disposed of by him so that the plaintiff, as such assignee, cannot get possession thereof. That November 3, 1897, when George Huntzicker made the voluntary assignment as stated, he was unable to pray his debts, and was insolvent, and his indebtedness was largely in excess of all the property he then owned, and also including the value of the property he had so fraudulently conveyed to the other defendants, as found. (31) That notice of the pendency of the action was filed in the register’s office May 10, 1898; that all the material allegations of the complaint were proven and true; that, among other things, the amended complaint alleged, in effect, that prior to- the commencement of this action certain creditors of George Huntzicker, whose indebtedness existed prior to September 9, 1893, reduced their claims to judgments, which were duly rendered and docketed in the office of the clerk of the circuit court for Clark county, where the said George Huntzicker then and ever since resided, and that executions of such judgments were and had been duly issued to the sheriff of Clark county out of the circuit court of that county, and were duly returned by the sheriff nulla bona before the commencement of this action.</p> <p>As conclusions of law the court found, in effect, that September 9, 1893, George Huntzicker was a debtor, within the meaning of section 2320 of tbe Statutes; that the conveyances and transfers from him and his wife to Mary E. Broolcs and to Frank Huntzicker were, respectively, fraudulent and void' as to his creditors and as to the assignee, and that the plaintiff, as such assignee, was entitled to judgment canceling and setting aside such conveyances, and .transferring the title to the real estate to the plaintiff; that the transfer of the stock to John Shanks was fraudulent and void as to such creditors and- as to the plaintiff, and that the plaintiff was entitled to judgment against all said five participants for $460, the value thereof, with interest thereon from the datd of the commencement of this action; that the plaintiff, as such assignee, was entitled to judgment against Walter G. and Mary E. Brooks for $5,000, with interest from the commencement of this action, on account of the moneys received by them from the mortgage to Scott, Tiffany & Paul; that that mortgage to them and the mortgage of $1,000 to Ida Lowe are valid liens upon the real estate, as to the respective grantees therein named, and that the judgment should transfer such real estate to the plaintiff as such assignee, subject to such liens; and that the plaintiff was entitled to judgment for costs and disbursements to be taxed, and ordered judgment accordingly. Prom the judgment so entered, the defendants bring this appeal.</p>

<p>Appeal from a judgment of the circuit court for Wauke-■sha county: James J. Dice, Circuit Judge.</p> <p>This is an appeal from a judgment confirming an award of arbitrators partitioning and dividing the real estate and property described between the parties as tenants in common; that is to say, so that Bteinmeyer and Ott have one half thereof, having due regard to the relative size and value of the same, and to Frcmkfurth and Maschauer the other half thereof, having due regard to the size and value of the same. The land appears to be situated on the southerly end and 'westerly side of Lake Garvin, and from the southerly end of the lake a low piece of ground, called a “mudhole,” extended southerly a distance of perhaps 200 feet, and about 100 feet east of the southerly end of the mudhole is a highway. ■ Some 200 or 300 feet northerly from the south end of the lake is a canal running from Lake Garvin west to Okauchee Lake, a distance of about fifty feet, and a strip of land of that width, belonging to the parties in common, extended north of the canal for about 112 feet. The land so. held in common is known as the property of the Garvin Lake Club, and extends to both of the lakes named, and southerly from the south end of the mudhole some fifty .or 100 feet.. The land slopes quite rapidly down to the mudhole on both sides and at the southerly end, and the shores, of the club property bordering .on the respective lakes for a distance of fifty or 100 feet appear to. slope rapidly down to the water, leaving a plateau between of about 300 feet in length and from fifty to 150 feet wide, and from thence north to the canal there is a roadway about eight feet wide on the top of the ridge. The submission was executed May 23, 1900, and after providing for the submission, and covenanting and agreeing to abide by the award to be made by the arbitrators, or any two of them, the submission contained the following provisions:</p> <p>“It is further understood and agreed that said arbitrators shall make an absolute division of said real estate and all rights, privileges, interests, and easements therein and improvements thereon, so that when said division is completed, the parties of the first part and. the parties of the second part shall each have an independent roadway leading from the right of way lying on the east line of said club property to the portion allotted to said parties, respectively, if, in the judgment of the arbitrators, it can possibly be done, and that neither party shall have any right of way, easement, burden, or charge of any kind or nature upon or across the portion allotted to the other; that the houses now occupied by the respective parties shall be allotted to them respectively; and .such other real estate and improvements as cannot be specifically divided between said parties on account of location or otherwise, and must therefore be allotted to one or the other, shall have a cash value placed thereon by said arbitrators, and the differences of said cash values so ascertained paid by one party to the other as the balance thereof shall appear.</p> <p>“It is understood and agreed that the said parties of the second part shall have the use of the barn.now located on the club property for thirty days after the making of the award herein.</p> <p>“It is further understood and agreed that the ice house now on the club property shall remain intact during the season of 1900; that both of said parties shall have the right to use the ice therein as heretofore.”</p> <p>It was therein further' provided that the expenses of arbitration should be borne equally by the parties, and a covenant and agreement that judgment should be entered upon the written award to be made and signed by at least two of the •arbitrators.</p> <p>The award was signed by two of the three arbitrators ■June 30, 1900, and after recitals of such common ownership, .and the submission to the three arbitrators named, and the fact that the arbitrators were first duly sworn, it was to the ■effect:</p> <p>“(1) That we award to Steinmeyer and Ott all of the real estate, with the improvements thereon, lying west and south <of a line running from a point on the easterly side of Okau-chee Lake, and some 200 feet northerly from the southwest corner of the club property, in a southeasterly direction to the easterly side of the club property at a point about 100 feet from the southeast comer thereof. (2) That we award to Franlcfurth and Maschauer all the real estate, with the improvements thereon, lying to the north and east of that line. (3) That we award to Steimneyer and Ott the northeasterly portion of the club property, known as the ‘ridge,’ lying northeast of the canal between Lakes Okauchee and Garvin, the canal itself, the bath house on the canal, and a piece of the ridge extending seventy-five feet southeast of the south line of the boat house over the canal, — being land ‘I’fa/J’on the map. (4) That, Franlcfurth and Maschauer objecting to building a bridge over the mudhole because of expense and inconvenience, and Steimneyer and Ott being satisfied therewith, and to give up to them the present entrance driveway as a private driveway, and to build one of their own south of the present one: Therefore we award to Franlcfurth and Maschauer a strip of land twelve feet in width extending from the present entrance gate, marked ‘F,’ at the east line of the club property, on and along the present roadway, and the continuation thereof, as marked on the annexed map, to the intersection of the division line hereinbefore described, at a point in the vicinity of the green stake; to be used by them as a right of way or driveway only. Said piece is designated on the map as ‘F,’ ‘K,’ and ‘G,’ and is to include sufficient land to make a proper approach to the piece of land to* be deeded to Franlcfurth and Maschauer for barn purposes, and designated on the map as ‘FI.’ — Said Franlcfurth and Maschauer to pay to Steimneyer and Ott $25 for the piece of land deeded to them for barn purposes. (5) That we award to Steimneyer and Ott the following improvements located on the real estate hereinbefore awarded to them: The barn, valued at $561.40; the ice house, valued at $96.10; the boathouse, valued at $215.54; the canal, valued at $200; the flagstaff, valued at $15; and the scow, valued at $10,- — so that Stemmeyer and Ott are required to pay to Franlcfurth and Maschauer one half thereof, to wit, $579.02. (6) That we award to Franlcfurth and Maschauer the following improvements on the real estate hereinbefore awarded to them: The summer house, valued at $30; SO' that Franlcfurth and Maschauer pay to Steimneyer- and Ott one half thereof, to wit, $15. (7) The deed of the roadway, mentioned in No. 4, awarded to Franlcfurth and Maschauer, is to contain a provision that no building or ob-strnctions of any kind are to be erected thereon; and that Steinmeyer and Ott are to have the perpetual right to cross said real estate at any time and at any point thereon for all reasonable purposes, but not to use the same for a driveway; that the deed to Steinmeyer and Ott is to contain a provision that there shall be erected on the real estate lying between D, E, K, and H on the map no buildings of any kind except an ice house, and that said property be kept in a clean and respectable condition,, and the mudhole thereon is not to be used for the deposit of refuse. (8) That Steinmeyer and Ott are to waive in writing all and every right of way which they might otherwise be entitled to across the real estate of Frankfurth and Maschauer to reach their property adjacent to the canal and bath house except the right to1 travel to and from said piece by boat. (9) That the present windmill is to be tom down, and that Steinmeyer and Ott are to have the iron standing-pump and well and FranJcfurth and Maschauer the hot-air pump and connections. (10) That Frankfurth and Maschauer shall pay one half of the‘actual cost of building a road south of the present roadway to be used by Stein-meyer and Ott as an entrance from the east line of the club properly to the piece hereby awarded to them. (11) That the land at the northeast extremity of the club property, being the part ‘I’ to £J,’ hereinbefore awarded to Steinmeyer and Ott, conveys to them the same to the low-water mark only, and that, in case the dam should at any time in the future be removed, and the lajee lowered to its original level, then the title' of said piece of land shall revert to Frankfurth and Maschauer. (12) That in case the roadway, E, K, and Gr, and barn site, H, hereinbefore awarded to Frankfurth and Maschauer, be by them abandoned as a roadway, or be by them used for any other purpose than a roadway and a barn site, then the title to said roadway and also' to said bam site shall revert to Steinmeyer and Ott; that the deeds conveying said pieces of property, respectively, contain provisions in compliance with the awards last above mentioned. (13) That the barn and ice house arid present driveway may be used by all said parties jointly as heretofore until October 1, 1900. (14) The exclusive use of the present wooden windmill is hereby awarded to Steinmeyer and Ott until October 1, 1900, when the same is to be removed. Right is given to- Steimney&r and Ott to remove tbe trees on tbe proposed driveway on tbe plateau from point K to G. Stein-meyer and Ott may cut ice on Garvin Lake, and baúl tbe same from Lake Garvin to tbe mudbole south of tbe same to tbeir ice bouse on tbeir premises during tbe winter months. That $800, being tbe expenses and charges incident to tbe arbitration, shall be paid as follows: Franlcfurth and Maschauer $400 thereof, and Steimney&r and Ott $400 thereof.”</p> <p>Tbe motion to vacate and set aside tbe award or modify the same was denied by the circuit court, and thereupon an order was entered in that court confirming tbe award so made in all things, and judgment was thereupon entered in tbe circuit court in strict accordance with tbe award. From that judgment, Franlcfurth and Maschauer bring this appeal.</p>

Elliott, Circuit Judge. This is an appeal from a judgment of tbe circuit court of Milwaukee county requiring tbe executors of tbe estate of Jobn Black, deceased, to pay an inheritance tax upon tbe personal property transferred by tbe will of said deceased.

<p>Appeal from a judgment of the circuit court for Milwaukee county: LaweeNCb W. Halsey, Circuit Judge.</p> <p>On April 7, 1887, John T. Kopmeier executed bis will, whereby, after certain money bequests, be gave all of the-residue of the estate to his wife, to hold during the term of her natural life, subject to the charge of supporting two-daughters until their marriage. The sixth clause of the will was as follows:</p> <p>“Sixth. From and immediately after the death of my beloved wife, I give, devise, and bequeath all the rest, residue,, and remainder of my estate, both real and personal, goods, and chattels, of 'what nature or kind soever, to my children, Maria Adelheide Koetting, wife of John B. Koetting, Johann ITeinrich Kopmeier, Anna Josephine Schwaab, wife of Andreas Schwaab, Katharina Elizabeth Kopmeier, Gerhard Heinrich Kopmeier, Hubert Stephanus Kopmeier, Albert Heinrich Kopmeier, and Adelheide Theodora Kopmeier, to be divided between them equally, share and share alike, and to have and to- hold the same to them, and their heirs and' assigns, forever; but none of the real estate which I shall own and die possessed of shall be in any manner conveyed or sold until the expiration of twenty-one (21) years from the date of this instrument; and I wish, and hereby direct my executors, as hereinafter nominated and appointed, that after all the taxes, costs, repairs, and expenses have been paid out of the income, rents, and profits of said real estate, all such net income, rents, and profits to be divided between-my said children equally, share and share alike, at the end of every one year during such time, and till the expiration of said twenty-one years, as stated above.”</p> <p>He named his wife as executrix during her life, and provided, “After the death of my said wife, I nominate and appoint John B. Koetting and Maria Adelheide, his wife,.. Katharina Elisabeth Kopmeier, and Gerhard Heinrich Kop-meier to succeed my said wife as executorsmaking, also-,, some provision in case of death of such, nominees. John T. Kopmeier died September 2, 1888. The will was probated,, and letters testamentary issued to the. widow, as executrix, May Y, 1889, and she died December 30, 1898. On March 24, 1900, letters of administration de bonis non with the will annexed were issued to John B. Koetting, Maria A. Koet-ting, his wife,- Katharina B. 'Walter, and Gerhard H. Kop-meier, — the first being a son-in-law, and the other three, children, of the testator, — and in May of the same year they presented to the county court a petition for the construction of said will, especially the sixth and seventh paragraphs thereof. The children of the testator named in said sixth paragraph are still alive. Their ages at the date of the will ranged from that of Adelheide, fifteen years, to that of Maria A. Koetting, thirty-six years. The estate, at the time of the petition, consisted almost exclusively of real estate* of value, approximately, .$150,000, and yielding income of about $5,000. The county court held all of the limitations upon the estate conveyed to the children invalid, and adjudged in them absolute fee simple, dating from their mother’s death. The circuit court, upon appeal by Anna J. Schwaab, one of the children, reversed this judgment, and adjudged that by the will a valid trust term was created, expiring twénty-one years after April Y, 188Y; that the legal title to the property became vested in the executors named in the will on December 30, 1898, upon the trust to care for and manage the estate, to receive rents, income, and profits therefrom, to pay taxes, costs, repairs, and expenses, and the net amount of such rents, income, and profits to be divided equally between the children of said testator at the end of each year; also made construction of the seventh paragraph of the will, which is not assailed by either party. From that.judgment the four persons named as executors bring this appeal.</p>

<p>Municipal corporations: Arbitration: Towns: ’Villages: Division of property on separation: “Joint property:” Judgments: Res ad-judicata: Mandamus.</p> <p>1. Where, on the separation of a town and village, a controversy existed as to the disposition of a judgment existing against the village in favor of the entire town including the village, and the municipalities, in order to settle the controversy and avoid litigation, jointly sought the legal opinion of an attorney, and submitted various questions to him for decision, his decision is in no- sense the award of an arbitrator.</p> <p>2. Until the enactment of ch. 287, Laws of 1897, a Tillage had, for town purposes, remained a part of the town in which it was situated. Thereafter it was wholly separated from the town. While the Tillage was part of the town it had collected and retained certain sums for licenses for the sale of liquors, and an action brought by the town to recoyer the same was settled and judgment entered therefor in favor of the town and against the Tillage, on which the Tillage had made partial payments. Held, that the balance due on the judgment at the time of the separation was ’the joint property of both municipalities within the meaning of sec. 96, ch. 287, Laws of 1897, providing that when a Tillage is a part of a town for town purposes, and owns property “jointly with such town,” such property shall be diyided in proportion to the “equalized Talue of each,” to be determined as therein provided.</p> <p>3. Where such Tillage had no separate and independent existence when the judgment was rendered, and the question as to the ownership of the judgment was not therein inyolyed, such judgment is not res adjudicaita on that question.</p> <p>4. Where it appeared that the equalized yaluation of the Tillage was more than that of the town, and that the Tillage had already paid two-thirds of the face of such judgment, mandamus will not lie to compel the Tillage to place the amount remaining unpaid thereon upon- its tax roll, and compel its collection for the benefit of the town.</p>

<p>MotioN under see. 4-713, Stats. 1898, to appoint counsel to prosecute a writ of error.</p>

<p>Appeal from an order of the circuit court for Monroe county: J. J. Fkuit, Circuit Judge.</p> <p>This is an appeal from an order made March 30, 1901,. setting aside two judgments entered upon notes and warrants of attorney February 4, 1901, — one for $517.90, damages and costs upon a note and warrant of attorney signed by the defendants Peter and John Clements, Jr., July 26, 1900, and payable on or before December 1, 1902, for $450 and interest; and the other for $1,053.50, damages and costs, upon two notes and warrants of attorney, signed by the defendants John P. Clements, Peter Clements, and John Clements, Jr., July 26, 1900, — one for $450 and interest, payable on or before December 1, 1900, and the other for $450 and interest, payable on or before December 1, 1901, — and which order allowed the defendants to serve and file their proposed answers, and expressly required the two judgments so entered to stand as security to the plaintiff herein pending the trial of the action, and required the plaintiff to pay forthwith $10 costs of the motion. The order so entered was granted upon the application of the defendants, based upon the judgment rolls, respectively, and affidavits and proposed verified answers in each case, and affidavits and written contracts read in opposition to the motion. The proposed answer of Peter and John Clements, Jr., to the note upon which the smaller judgment was entered is simply to the effect that the plaintiff was a corporation existing under the laws of Michigan, as alleged; that they made the note as alleged, but received no consideration therefor; and that by the terms of the note it was not due and payable until December 1, 1902. The proposed answer by the three defendants to the two notes upon which the larger judgment was entered is similar to the other, and also, among other things, alleged, in effect, an agreement on their part to purchase of the plaintiff “one of its ten-horse power Port Huron traction engines, and one 33x50 Rusher separator with attached stacker, drive belt, bagger, tank, pump, and canvas,” for $1,350 in all, upon warranties alleged to have been there made by the plaintiff; and it was alleged therein that at the time of making such warranties it was expressly agreed that, if any of the parts failed to work as warranted when properly operated, or to furnish the power, or work well, or give satisfaction,, or thresh clean, then the three notes were to become null and void, and be returned to tbe defendants; and such answer further alleged as follows :</p> <p>“That thereafter, on or about the 1st day of August, 1900, said defendants gave said engine a fair trial, but that the same did not do good work, did not furnish the horse power warranted, and would not work at all, and proved entirely worthless.</p> <p>“That the said defendants at once gave notice to the said plaintiff at its home at Port Huron, Michigan, by a registered letter, of the condition of said engine, and also notified the local agent of said plaintiff at Cashton, Wisconsin, of the condition of the engine, and demanded from the said plaintiff a return of their notes.</p> <p>“That said plaintiff, by its agents, again agreed with the said defendants that they would put said engine in perfect order if the said defendants would agree to give engine another trial. The said plaintiff further agreed with the said defendants that, if the said engine was given another trial, and it did not do good work, and give good satisfaction, that the said defendants need not keep said engine, but that the said plaintiff would take same back. The said defendants, in order to give said engine a fair trial, -procured an expert engineer to operate it. That said engine was not as guaranteed, did not do good work, but, on the contrary, would not work at all. That said engine could not be made to run and furnish any power whatever, even when operated by said expert engineer.”</p> <p>It also alleged, in effect, that, seeing that the engine would not furnish power as warranted, and could not be made to run, and was defective and worthless, the plaintiff’s agents agreed to take it back, and to furnish the defendants at their residence, on or about August 9, 1900, with a fourteen-horse power, simple, Port Huron engine and the new Eusher wind stacker, in consideration of which the defendants agreed to ^give back the engine first contracted for and two new notes of $275 each, in addition to the three mentioned, payable as stated; but the plaintiff wholly failed to do so, and August 25, 1900, notified the defendants that it was unable to perform the contract as agreed. That the defendants then and there notified the plaintiff that they considered the contract as rescinded and countermanded, and:the defendants, on August 30, 1900, purchased a new Advance engine. That the only consideration the defendants had received for the three notes was the separator and attachments, for which the agreed price was $550. That the defendants tendered $455, the amount of the note due December 1,. 1900, to apply as part payment of the separator and attachments. That neither of the other two notes were due when the judgment was entered; and also alleged performance of all the conditions and terms of the contract as modified on their part, and counterclaimed $500 damages for breach of the original contract and for failure to furnish the fourteen-horse power engine, as agreed.</p> <p>In opposition to the motion bo set aside such judgments, the plaintiff presented an affidavit of its agent who* sold the machinery to the defendants and took their order therefor, with the written contract between the parties, dated June 20, 1900, as containing the only warranties and agreements ever made by the plaintiff, and stating that the machinery com- . plied in every respect with such warranties, and fulfilled every representation made, and was tried by the defendants to their full satisfaction, and was accepted by them; that August 10, 1900, the defendants expressed a desire to exchange the engine for a fourteen-horse power, simple, Port Huron engine, for which it was agreed that, if the order therefor should be accepted by the plaintiff, the defendants would pay $550; that such order was in writing, and attached thereto, and was taken by the plaintiff’s agent subject to the approval of the plaintiff; that the plaintiff rejected the order, because it did not have an engine of that size and dimensions and proportions on hand; but offered at the same price a fifteen-horse power compound engine, which was more valuable, and which the defendants at first accepted, but shortly thereafter countermanded; and the affidavit expressly and specifically denies each and every allegation contained in said answer relative to the transactions and agreements with him made, except as therein admitted. The written order for the fourteen-horse power engine, signed by the defendants, contained this provision:</p> <p>“The order is subject to the approval and acceptance of said company at its home office in the city of Port Huron, Michigan. Same is to have one month for investigation and acceptance. When approved and accepted by same, this order is a binding contract. It cannot he varied in any respect, except in writing over the signature of an officer of the company.”</p>

J. Eeuit, Circuit Judge. Tbis is an action to recover for personal injuries.

<p>Guaranty: Conditional delivery: Waiver: Evidence: Court and jury: Appeal and error: Former adjudication: Instructions to jury."</p> <p>1. In an action on a contract of guaranty, delivered contrary to an agreement -whereby it was not to take effect until executed by another surety, a judgment for plaintiff was reversed. On a retrial, evidence, introduced for the first time, tended to show that before the guaranty had been accepted, or any goods furnished thereunder, the obligee’s agent visited the guarantor to obtain his signature to a property statement; that the guarantor took the paper, signed the statement as requested, and handed it back to the agent, informing him that it was conditionally signed, and was not binding as a contract of guaranty until signed by another surety. Meld, that the question whether the guarantor expressly or impliedly waived the condition under which he first signed the guaranty, was for the jury.</p> <p>2. Where, after a decision on appeal, a cause is retried, error cannot be assigned because the trial court followed the decision of the appellate court.</p> <p>3. In an action against a guarantor, evidence of a conversation between the principal debtor and the agent of the obligee, the guarantor not being present, is incompetent and immaterial.</p> <p>4: Where no instructions to the jury are requested, and no complaint made that the instructions given were not proper so far as they went, except one, which followed the decision of the supreme court rendered on a former appeal in the same action, error cannot he assigned because the court did not fully instruct the jury on all the material issues.</p> <p>15. Waiver, when put forward as a ground of action or as a defense, is affirmative matter to be established by the party alleging it.</p>

<p>Appeal from a judgment of tbe circuit court'for La Crosse county: J. J. Ebuit, Circuit Judge.</p> <p>On March 23, 1897, Frank Beranek, plaintiff’s husband, took a lease of a vacant lot in the city of La CroSse from the defendant John Beranek, his father. The lease was in the usual form, for a term of five years, and the rent to be paid was the taxes on the property. Very soon thereafter said defendant borrowed $500, giving a mortgage on the property leased, which, with the sum of about $260 furnished by Frank, was used in building a house on the leased premises. About June of that year, Frank moved into the house with his family, and occupied it as a homestead. Soon after moving in, Frank -was taken sick. He failed to pay the taxes and was without money. In the spring of 1899 he desired to go to Denver for his health. It was then agreed that his father should repay him the $260 he had advanced to build the house, and he thereupon executed a written surrender of his lease; reciting that he was unable to comply with its terms, and that it was made upon the consideration of a return to him of the sum'above mentioned. The plaintiff did not sign the paper. He thereupon rented a house in another part of the city, and sent a team to remove his household goods thereto. The plaintiff refused to move. Thereafter the defendant John Beranelc began an action of unlawful detainer against Frank, and obtained a judgment for the restitution of the premises, under which plaintiff was ousted from the premises in June, 1899. Frank rented a house on Eleventh street, and moved his family thereto. Soon thereafter he went to Denver, but, not being benefited, he returned, and died at La Crosse on October 23, 1899, from consumption. In July, 1900, the plaintiff brought this action of ejectment to recover possession of the premises, and claimed $100 dam-agés. The evidence on the trial detailed the facts as herein-before set forth. A jury was waived, and the court made findings, among other things, that the lot in question was Frank Beranek’s homestead at the time of his death, and ■that he had no other dwelling place or home; that the defendant Joseph Beranek was occupying the premises as the tenant of the other defendant; that the use of the premises was worth $7 per month; that the same descended to plaintiff; and that she was entitled to judgment for the possession and $112 damages. A judgment was duly entered that the plaintiff “do have and recover of the defendants . . . the possession of the premises described in the complaint,” and the sum of $112 damages, and costs. The judgment failed to determine the nature or extent of her title, and is for the sum of $12 moré damages than was demanded in the complaint. Exceptions to the findings were duly filed. Defendants requested findings to the effect that Erank Beranek rented and prepared' a new home for his family, "but that plaintiff refused to move, and also covering other matters deemed material to their defense. The court refused so to find, and defendants duly excepted. The defendant John Beranelc takes this appeal.</p>

<p> Physicians and surgeons: Malpractice: Appeal and error: Law of the case: Court and jury: Instructions to jury: Evidence: Hypothetical questions: Trials: Remarks of counsel: New trial. </p> <p>1. On a former trial of an action for negligence in treating a fracture of plaintiff’s arm, defendant’s witnesses testified that the fragments were brought into apposition and so retained until they healed, save a slight displacement of one eighth of an inch in one place and one sixteenth of an inch in another. On the second trial, plaintiff’s witness, a physician, who testified on the first trial to “some displacement,” testified to a displacement of one half an inch, that the deformity was “marked,” and that from a displacement such as was described by defendant’s witnesses the deformity could not be “pronounced.” Held, that the court was not precluded by the former decision from con- , sidering whether there was presented a jury issue as to negligence of defendant in treating the fracture, nor as to the effect of such negligence in producing the whole or any part of plaintiff’s ultimate injury.</p> <p>2. In such case, where the testimony was so conflicting that reasonable minds might differ as,to the extent of displacement permitted by defendant, and there was abundant evidence that the deformity and distortion of plaintiff’s hand were the natural and probable results of the greater displacement, the extent of the displacement was properly a question for the jury.</p> <p>3. Where, in an action for malpractice in improperly treating a .fracture.at the wrist, there was testimony tending to show that the use of a splint, accompanied by the binding of the hand to it, was not good practice, the confinement of the hand to the spljnt is so intimately connected with the use of the splint, that a requested instruction — that there was no evidence to justify the jury in finding that the splint used by the defendant was improper or unsuitable — without qualification, is misleading, and its refusal is not error.</p> <p>4. In such case a requested instruction — “that unless the jury finds that all of the injury for which plaintiff seeks to recover in this action resulted wholly from the want of ordinary care and skill on the part of the defendant, . . . and that the negli- ■ gence or imprudence of plaintiff herself in no degree contributed thereto, your verdict must be for the defendant” — is so worded as to be improper.</p> <p>5. A portion of the instructions given to the jury will not be held erroneous, where, from an examination of the whole charge, the court is satisfied that the jury could not have been misled by the sentence extracted.</p> <p><5. Where there are conflicting theories of the situation, and evidence to support each, counsel may select any hypothesis fairly supported by the evidence and call for the conclusion of the witness thereon.</p> <p>7 Where the hypothesis bn which an opinion is requested has support in the evidence already given, it is not error to permit plaintiff to introduce expert testimony, based on such hypothesis, before resting, since the defendant has full opportunity to cross-examine upon any modification of that hypothesis which may be justified by the evidence.</p> <p>S. A motion for a new trial was based, in part, upon remarks of plaintiff’s counsel calculated to arouse the prejudices of the jury, which were promptly rebuked by the court, and no other impropriety in the conduct of couhsel appeared. In view of the care and wisdom exercised by the court in the conduct of the trial as evidenced by the record, and that, in the light of its superior advantages for knowledge, the trial court ruled that the defendant was not prejudiced thereby, it is held that the motion was properly overruled.</p>

<p> Municipal corporations: Charter provisions: Claims: Presentation to common council: Appeal: Negligence: Tort actions: Conditions precedent: Pleading. </p> <p>1. Secs. 1, 2, subch. XX, ch. 162, Laws of 1877, gives tlie common council of the city of New London power to adjust all claims and demands of every nature against the city, except those payable out of the school fund, and provides that no action shall be maintained upon any such claim or demand, other than a city bond or order, unless it shall first have been presented to the common council. The action of the common council, disallowing such claim, is made a bar to any action founded thereon unless an appeal be tafeen, or unless the council consents to the institution of the action. Held, that the language of the charter covers a cause of action for damages sustained by the negligent acts of the city, and that the circuit court could not get jurisdiction thereof except by appeal.</p> <p>2. Plaintiff’s action was for damages which had resulted from the . defective construction of a street, whereby his land was flooded. The complaint failed to allege the presentation of his claim to the common council. Held, that a general demurrer was properly sustained, such claim coming directly within the provisions of said charter, and its presentation to the common council being a condition precedent necessary to be alleged. Remarks in Davis v. Appleton, 109 Wis. 580, to the effect that such charter provisions are in the nature of statutes of limitation, overruled.</p>

<p>Appeal from, a judgment of the circuit court for Wau-paca county: Chas. M. Webb, Circuit Judge.</p> <p>This is a claim against the estate of William Gudden, deceased, made by Anna Gudden, his widow. It appears that in May, 1880, William Gudden, a widower, fifty-nine years of age, married the claimant, she being then twenty-one years his junior. The deceased had at that time two adult children by a former marriage, Adelheid Linde and B. C. Gudden, who lived in Oshkosh; the deceased himself lived upon a valuable farm which he owned in Winnebago county,. Wisconsin. William Gudden died September 17, 1898, at the age of seventy-seven years. The plaintiff here alleges that at the time of her marriage to William Gudden she-loaned or deposited with him $8,200 in money and securities, and that the deceased gave her a written contract by which he agreed to pay her interest annually thereon, beside giving her the use of the farm for her life. She further claims that he never paid her any interest upon said loan,, and that on the 1st day of June, 1889, he returned to her the principal thereof in the form of two notes and accompanying mortgages, of the face value of $3,200, but without any written transfer or assignment thereof; that in 1890-he collected and received the year’s interest on said last-named notes and mortgages, amounting to $192; and that he never paid her any interest on the money loaned, nor did he turn over to her the said $192, — and this claim was filed against his estate to recover these sums. The answer of the administrator, after a general denial, pleads the statute of limitations, payment, and an accord and satisfaction. The claim was disallowed by the county court of Winnebago county, whereupon the plaintiff appealed to the circuit court, and thereafter change of venue was taken, and the action was tried by the court without a jury. The court found, in substance, in accordance with the plaintiff’s contention, to wit, that the plaintiff loaned William Gudden $3,200 at the time of her marriage, and that William Gudden then agreed to pay her interest thereon at the legal rate, by written contract, and that he never paid her any interest thereon; that he collected said sum of $192 belonging to the plaintiff, and never paid her the same; and that there was due from his estate to the plaintiff the interest that had accrued on said $3,200 loaned, together with said sum of $192, amounting in all to the sum of $1,667.28. Judgment for said sum in favor of the claimant, with interest thereon from the time of the filing of the claim in the county court, was rendered, and the administrator appeals.</p>

<p>Appeal from a judgment of the circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.</p> <p>Action to enforce rescission of a contract for nonperformance of a condition subsequent. The issues raised by the pleadings sufficiently appear by the findings of fact and con-elusions of law. Eor the purpose of this appeal such findings and conclusions may be stated as follows: May 28, 1899, and for many years prior thereto', plaintiff owned and possessed as his homestead the lands described in the complaint. Defendant Albert Gloche, Jr., is plaintiff's son and is twenty-five years of age. Defendant Emma Gloeke is the son’s wife. May 23d, aforesaid, plaintiff, by a deed with full covenants, conveyed the lands mentioned to his said son, receiving as the only consideration therefor an agreement, executed by the latter and his wife, secured by a mortgage for $5,000 on said lands, by which agreement it was stipulated that plaintiff should have the use of a designated part of the dwelling house on said lands during his life, the use of one acre of land for a garden, the right to go upon any part of the premises at his pleasure, and the right to permit such persons as he might desire to come upon the land to visit him'; that defendants would manure and plow plaintiff’s garden spot when requested to do so; that they would give plaintiff good and proper care and nursing in ease of his sickness, and at such times obey his request to procure a doctor and pay the doctor for medical services; that they would furnish plaintiff, at any time he might desire, any horse that might be on the farm, with rig and harness, ready for his use to go anywhere he might choose; that the occupancy of the premises by the defendants should commence March 1, 1900; that March 1, 1901, and annually thereafter during plaintiff’s' life, defendants would pay him $75 in money; that they would, during his life, deliver to him each year at threshing time forty bushels of good wheat, at digging time forty bushels of good potatoes, at shearing time ten pounds of the best wool, in November 100 pounds of good beef and two hogs weighing not less than 200 pounds each, two quarts of fresh milk every day, one dozen eggs daily from March 1 to November 1, three pounds good fresh butler every week, one fat éhicken every week, at Thanksgiving time two fat geese, and all the good dry wood he might desire for fuel, ready for the stove; that in case plaintiff should die leaving a widow, she should have the use during her life of a designated part Of the dwelling house as aforesaid, all the good dry fuel she should need, prepared for the stove,' and one-half as much money, wheat, potatoes, beef, pork, wool, butter, eggs, milk, chickens and geese as that agreed to be furnished plaintiff, and at the time designated for furnishing the same to him; that on the full performance of all the conditions aforesaid to be performed by the defendants, both as to the plaintiff and as to his widow, should he die leaving one, after his death and the death of his widow, if there should be one, the said mortgage should become void and of no effect, and be canceled of record.</p> <p>As soon as defendants took possession of the farm under the aforesaid agreement, they became intolerably abusive toward plaintiff. They failed, nearly from the first, to carry out any part of the aforesaid agreement They did not perform any of such agreements except to furnish butter and eggs and milk for about ten days, though they were repeatedly requested to comply in every respect with their contract. Subsequent to the making of the contract plaintiff married and took his wife to live with him on the farm. Defendants immediately thereafter became intolerably abusive toward her. April 5, 1900, without the consent of plaintiff or his knowledge, defendants left the premises to live on a farm purchased by them, some twenty miles away, taking all-their belongings with them, after which time they made no attempt whatever to fulfill any of the obligations of said agreement. By reason of such removal they rendered themselves wholly incapable of complying with their contract. After such removal defendants freely asserted to plaintiff that they would not -abide by their said agreement, and they gave out publicly that they would sell or lease the place, or commit waste thereon. The premises are worth about $8,000. Plaintiff never gave up possession thereof other than as contemplated in the contract, hut is now in possession the same as before the contract was executed.</p> <p>The conclusion of law was that the transactions between the parties, consisting of the making of the deed, mortgage and contract, should be deemed rescinded and all rights which the parties obtained through such transaction extinguished, and the title to the pro*perty involved adjudged to be in plaintiff the same as if such transaction had never occurred.</p> <p>Defendants alleged in their answer, by way of counterclaim, that when the contract was made, which was attempted to be reduced to writing by the making of the deed, written agreement and mortgage, it was a material part .thereof that a large amount of the personal property and farming utensils in use and for use on the farm should go with the farm to the defendants as part of the consideration for the agreements on their part contained in the written contract referred to; that by mutual mistake the papers were so drawn as not to carry out that part of the arrangement between the parties, and that plaintiff has refused to let the •defendants have any part of said personal property. There was a prayer for a reformation of the agreement and deed •so as to embody the part alleged to have been omitted therefrom. '</p> <p>Judgment was rendered for plaintiff in accordance with the conclusions of law as before stated.</p>

<p> Highways: Negligence: Personal injuries: Proximate cause: Contributory negligence: Evidence. </p> <p>In an action for personal injuries sustained by reason of an alleged insufficiency of a highway it appeared, among other things, that the traveled part thereof, for a distance of about 700 feet, was worn and washed out to a depth of from ten to twenty inches, forming a cut too narrow for teams to pass without driving partly onto the embankments on either side. Such condition was well known to the officers of the defendant, and had existed for more than six months. Between a point 250 feet north and a point 200 feet south of the place of the accident there was nothing to obstruct the view of a person traveling south. The last safe turn-out for a person traveling south was 200 feet north of the place of the accident, and for a person traveling north 80 feet south thereof. Plaintiff, who was familiar with the highway and who had passed over it a short time before, in traveling south, drove his team, attached to a sled on which was a top-heavy load, into the cut past the last north turn-out, and there met another heavily loaded sled. In order to pass, each was compelled to drive up onto the bank, at that point thirteen inches high. After passing, plaintiff attempted to turn back into the road at a point where the bank was sixteen inches high. In doing so, his load overturned and he was injured. Plaintiff failed to observe the other team and paid no attention to its approach until they met. Held, that plaintiff was guilty of contributory negligence which was the proximate cause of the injury.</p>

<p>Appeal from a judgment of tbe circuit court for Portage county: Chas. M. Webb, Circuit Judge.</p> <p>Tbe plaintiff, about April 15, 1899, sold bis potatoes to the amount of $329.45 to one Julius Werachowski upon the latter’s statement, as plaintiff claims, that the purchase was as agent for the defendant. That agency is denied. Plaintiff offered evidence of the course of business by Werachowski, with knowledge on the part of the defendant, both for the purpose of justifying an inference of agency in fact and of an apparent agency permitted by the defendant, and also offered evidence of subsequent affirmance of the purchase and promise to pay by the defendant in person. All these contentions were controverted. The jury found a general verdict in favor of the plaintiff, upon which judgment was rendered, wherefrom defendant brings this appeal.</p>

<p> Guaranty: Construction of contracts: Sealed instruments: Limitar tion of actions. </p> <p>1. In tlie construction of contracts tlie definite and precise must prevail over tlie indefinite, the particular over the general, and the-express over what might he otherwise implied.</p> <p>2. Plaintiff entered into a written contract with B., by which B. agreed to log, saw, and pile all the. pine timber on certain lands-during the following winter. Defendant signed the following guaranty indorsed on said contract: “For value received, I hereby guarantee the fulfillment of within contract on the part of [B.]. In case of the failure to log, saw, and pile the timber that is burnt, within the time stated, I agree to make good to-[plaintiff] all damages arising from such failure. Held, that the guaranty simply covered the burnt timber.</p> <p>3. In such case, the contract on which such guaranty was indorsed was under seal. Held, that liability under the contract of guaranty, which was not under seal, was barred in six years under subd. 3, sec. 4222, Stats. 1898, and not in twenty years under sec. 4220.</p>

Elliott, Judge. Tbis is an'equitable action, brought to abate a dam on. the Catfish creek at the outlet of Lake Mendota, alleged to-be owned and maintained by the defendant city of Madison.

<p>Constitutional law: Taxation: Uniformity: Exemption: Bridges: Villages: Officers: Sureties. /</p> <p>1. Sec. 1319, Stats. 1898, authorizes the raising of taxes hy counties to aid towns in the building of bridges, but provides that the act shall not authorize the levying of any tax on the property of any city or incorporated village “that maintains its own bridges.” Sec. 1, art. VIII, Const., declares that the rule of taxation shall be uniform. Held, that such exemption from taxation applies to such cities and villages as are required1 by law to maintain their own bridges, whether they in fact maintain any or not, and so construed the statute is not unconstitutional as creating an unreasonable and artificial classification.</p> <p>2. The provisions of ch. 40, Stats. 1898, governing incorporated villages, taken in connection with sec. 1339 (giving to the person injured a right of action for any injury happening by reason of the insufficiency or want of repair of any bridge, etc., in any town, city or village), imposes upon villages, unless acting under a special charter which does not impose the burden, the duty of building and keeping up the bridges within their limits.</p> <p>3. A village incorporated under the general law, with the power and obligations imposed hy ch. 40, Stats. 1898, is not liable to taxation in aid of building bridges, under sec. 1319.</p> <p>4. Where a village treasurer, in obedience to his warrant therefor, collects taxes, and the same warrant requires him to pay over the money collected to a certain officer, his plain duty is to obey the commands of his warrant, and in so doing he and his sureties are amply protected.</p>

.G. Siebeoker, Circuit Judge. This action .was at law to recover an alleged agreed balance due from the defendant to the plaintiff upon accounting and settlement of partnership affairs, the complaint being duly verified.

<p>Appeal from a judgment of tbe circuit court for Dane county: K. G. SiebeceeR, Circuit Judge.</p> <p>This is an action to recover for personal injuries. The plaintiff was a passenger on the south-bound vestibule passenger train upon the defendant’s road, which left the city of Madison shortly after 6 o’clock p. m., December 9, 1899, he having a ticket for the city of Oregon, where he lived. He obtained a seat in the smoking car, which was the first passenger ■ car upon the train. The car was crowded, many people standing in the pisles. When the train reached Oregon, it stopped opposite the platform, and the plaintiff, with some others,, prepared to leave the train. 'Before the plaintiff reached the' vestibule, however, at the rear of the car, the train had started, and the plaintiff stepped off on the depot platform while the train was moving, and was hurt. The plaintiff’s own evi-_ dence tended to show that he sat five or six seats from the front of the car; that when the train arrived at Oregon he started to get but, and first walked a few steps toward the front door of the car, until some passenger said that it was locked; that he then turned around, and worked his way toward the rear door, through the people standing up in the aisles, making as rapid progress as. he could, and passed into the vestibule ; that no one spoke to him that he was aware of; that he passed down the steps and stepped off, not knowing that the train was moving, and first discovered that fact when he struck the platform. One 0. A. Hanan was also a passenger in the smoking car, and knew the plaintiff, and was also desirous of getting off at Oregon. Hanan’s testimony was to the effect that the aisle of the car was crowded, and he (Hanan) was standing in the aisle near the forward door of the ear, and started for that door, and found that it was locked, and then turned around, and told Walters that he could not get out there, and Walters also turned around, and started for the rear door of the car about sis feet ahead of the witness; that they went along as fast as they could, and that just as he (witness) got into the vestibule Walters was dropping off the train; that he (witness) met a train hand in the vestibule, and the train hand reached up to pull the bell cord, . and said, “Hold on, I will stop the train;” that Walters was then at the foot of the steps, and witness said to him, “Hold on, JoTm; they will stop the train,”- but just as he said that Walters was stepping off; that the witness did not think that the train was moving until the train hand told him. W. T. White, the conductor of the train, testified that there were three passenger coaches and a parlor car upon the train, and that.when it reached Oregon he had just finished taking up tickets, and got off of the platform at the rear end of the train, and walked forward to the smoking car, and when he got to the rear end of the smoking car he looked to see if everybody had gotten off, and thought all had, and gave the signal to start the train, and got on the steps of the vestibule at the rear end of the smoker; that he met two or three men in the vestibule, who wanted to get off, and told them to wait a second, and he would stop the train, and stepped inside of the smoker, and pulled the bell cord, and then found that the men had got off. One H. D. Hanson testified that he was on the platform at Oregon to take this train south to the next station; that he waited until he thought that all had got off, and got on the rear end of the smoker, and as he got into the vestibule he met the plaintiff and another man, and this other man said, “Look out, John!” and the witness looked around, and did not see Walters, but saw only the second man on the steps; that then the conductor said, “Hold on, I will stop the train,” and pulled the bell cord, and the train stopped, and the second man got off; that Hanan spoke before the conductor did, and that the first he saw of the conductor was when he reached to pull the bell rope, and that he did not see the conductor come up the steps at all. The night was rainy, and very dark. The depot platform was 400 feet long, and was lighted by three large kerosene lamps on posts, one near each end of the platform and one near the middle; all being lighted. There were also lights in the station and a light in the roof of each vestibule. The plaintiff was well acquainted with the station and platform at Oregon.</p> <p>At the close of the evidence, the court directed a verdict for the defendant, and from judgment thereon the plaintiff appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Langlade cotmty: Joi-iN GoodlaNd, Circuit Judge.</p> <p>Action to recover on a promissory note made and delivered in tbe state of Kentucky on Sunday, November 21,1897. Tbe defense relied on was that tbe note was void because executed and delivered on tbe Sabbatb day. Tbe statute of Kentucky relied on was put in evidence by stipulation, but tbe unwritten law of tbe state, tbe judicial construction of sucb statute, was not put in evidence. Tbe cause was tried by tbe court. Findings were filed to tbe effect that tbe note was made and delivered in tbe state of Kentucky on November 21, 1897, a Sabbatb day, in settlement of an account for merchandise sold to defendant some time prior thereto; that plaintiff traveled, on sucb day, some fifteen miles to collect said account; and that tbe statute of Kentucky, at sec. 1321, provides as follows :</p> <p>“No work or business shall be done on tbe Sabbatb day, except tbe ordinary household offices, or other work of necessity or charity, or work required in tbe maintenance or operation of a ferry, skiff, or steam or street railroads. If any person on tbe Sabbatb day shall himself be found at bis own, or any other trade or calling, or shall employ bis apprentices, or other person, in labor or other business, whether the same be for profit or amusement, unless sucb as is permitted above, be shall be fined not less than two nor more than fifty dollars for each offense.”</p> <p>As a conclusion of law tbe court found that tbe note was valid by Kentucky law, and that plaintiff was entitled to ■judgment for the amount due thereon with interests and costs. Judgment was rendered accordingly.</p> <p>The respondent contended, inter alia, that the laws of Kentucky, where the note was executed and delivered, must gov■ern. , Edwards, Bills & N. (3d ed.), § 217; Tiedeman, Commercial Paper, § 507;Hull v. Augustine, 23 Wis. 383. Un-der the statutes of Kentucky, notes executed and delivered on the Sabbath were not void unless the business that constituted the consideration was transacted on the Sabbath. Bay v. Cat-Zett, 12 B. Mon. 535; Campbell v. Young, 9 Bush, 240; Do-honey v. Dohoney, 7 Bush, 217; Bice v. Comm. 3 Bush, 14; Watts v. Comm. 5 Bush, 309; Prather v. Harlan, 6 Bush, 187. Similar ruling under statutes of New York, Missouri, Nebraska, and Ohio. Merritt v. Earle; 29 N. Y. 115; Boyn-iton v. Page, 13 Wend. 425; Watts v. Van Ness, 1 Hill, 76; Smith v. Wilcox, 24 N. Y. 353; Clover v. Cheatham, 19 Mo. App. 656; More v. Clymer, 12 Mo. App. 14; Horaceh v. Keebler, 5 Neb. 355; Fitzgerald v. Andrews, 15 Neb. 52; .Bloom v. Bichards, 2 Ohio St. 387.</p>

The plaintiff brings this action to recover for services alleged to have been performed by him as cook for the defendant. He introduced testimony tending .to show that he was ■hired by H. Swanke, who was president of the defendant •corporation, to work for the corporation. Ho proof was offered by him that Swanke had any authority to hire men, or that he held any relation to.the corporation, except that he was president.

<p>Ereor to review an order of the circuit court for Eau Claire county: James O’Neill, Circuit Judge.</p>

<p>Appeal from an order of tbe circuit court for Outagamie county: JoplN GoodlaND, Circuit Judge.</p>

Action to determine tbe validity of tbe incorporation of tbe village of Cedar' Grove, Sheboygan county, Wisconsin. Tbe proceedings for incorporation were taken under secs. 854-866, Stats. 1898, having been instituted in November, 1899. Tbe territory attempted to be incorporated comprised a portion of the town of Holland, about two square miles, is situated entirely within Sheboygan county, and has a population numbering 317.

EeeoR to review a judgment of the municipal court of Milwaukee county: Geo. W. Burnell, Judge. Andrew J. Aikens and others were convicted of violating Stats. 1898, sec. 4466a. Each of the plaintiffs in error sued out his proper writ to review a judgment of the municipal court of Milwaukee county, adjudging him guilty of having committed an offense hy violating sec. 4466a, Stats. 1898, as charged in the information.

Elliott, Circuit Judge. In March, 1899, tbe plaintiff was tbe owner of certain lands in Waukesha county, and tbe defendants of a tract in tbe city of Milwaukee. An exchange was proposed. Tbe defendant Martin L. Kuehn pointed out to plaintiff tbe tract be owned, which was inclosed by a fence, and having a street frontage of 110 feet. Tbe exchange was agreed upon, each to give tbe other a good record title of tbe land owned by him, and deeds were executed.

W. BubNell, Circuit Judge. An information was filed in tbe circuit court for Waupaca county charging five defendants with assault with intent to rob. Upon affidavits of prejudice made by tbe defendants, tbe venue of tbe action was changed to Green Late county, and afterwards, upon affidavits of poverty, E. P. Einch was appointed as counsel to defend two of tbe defendants, and Henry Eitzgibbon to defend tbe remaining defendants. Tbe case was never brought tp trial.

G. Siebeceee, Circuit Judge. Tbis action was commenced in justice’s court August 4,. 1900, to recover $25 damages for trespassing upon tbe plaintiff’s land, described, and mutilating a shade tree tbereon, July 10, 1900.

J. ViNJE, Circuit Judge. Tbe complaint in-this section alleges, in effect, that January 22, 1900, a judgment was recovered in the circuit court in favor of Margaret Britts in an action of ejectment against John Finn et dl. for the land described, and $198.81 damages and costs; that August 31, 1900, the usual execution in such cases was duly issued thereon to the defendant Snyder as sheriff; that September 1, 1900, Snyder partially executed the writ, and then, against the…

<p> Pleading: Counterclaim: Same transaction: Subject of the action. </p> <p>1. Plaintiff alleged that defendant was the owner of a mill on plaintiff’s land, and allowed fire to escape therefrom onto the land to plaintiff’s damage. The affirmative parts of the answer set forth an alleged agreement with the plaintiff, by the terms of which the defendant moved his mill to plaintiff’s land, upon condition that the plaintiff would clear and hum off the rubbish about the mill site; that the plaintiff did not perform his agreement; that defendant was therefore obliged to do such clearing hitaself, keep a night watchman until such clearing was done, and therein necessarily expended a certain sum, followed by the statements, “which said amount this defendant pleads as a counterclaim,” and “this defendant therefore alleged as a counterclaim to the plaintiff’s alleged cause of action” said sum. Held,, under the liberal rules of construction required by sec. 2668, Stats. 1898 (providing that in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice), that the pleader had fulfilled the formal requirements of sec. 2656, requiring a counterclaim to be pleaded as such, and to be so denominated.</p> <p>2. In such case the action being to recover for tortious acts alleged to have been committed in May and June, and the supposed counterclaim being on a cause of action for breach of a contract made in the preceding April, the counterclaim cannot be said to arise out of the transaction set forth by the plaintiff, nor connected with the subject of the action, as required by said see. 2656.</p>

<p>Appeal from a judgment of tbe superior court of Douglas county: Chas. Smith, Judge.</p> <p>Tbe action was commenced in justice’s court. Erom a judgment in favor of defendant on bis plea of tbe statute of limitations, plaintiff appealed to tbe superior court. Tbe case was tried there without a jury. Tbe justice’s docket entry showed that the summons was issued December 1, 1900, and served December 3, 1900, on one of the defendants and on tbe other the day following. The return of the officer who served the summons was in harmony therewith. Evidence was permitted showing such facts, and showing or tending to show the facts found by the trial court. Such findings are to the effect that February 28, 1894, at West Superior, Wisconsin, defendant made the promissory note declared on in the complaint, whereby for value he promised to pay plaintiff, nine months thereafter, the sum of $50 with interest thereon at the rate of eight per cent, per annum; that no part thereof had been paid up to the date of such findings; that December 1, 1900, plaintiff’s attorney, in good faith, placed in the hands of a constable a paper in the form of a summons in an action in justice’s court by the plaintiff against the defendant, to recover upon such note; that the officer served the paper so delivered to him, on one of the defendants December 3d, and on the other one day thereafter; that it was not in fact a summons issued by the justice, but was made to appear to be such by plaintiff’s attorney procuring of the justice a signed blank, and some time thereafter filling it up, the justice not seeing the paper after it was a completed summons in form. Upon that state of facts it was held that the action was not commenced against the defendants till they voluntarily submitted to the jurisdiction of the court, and that there was no legitimate attempt to commence the same prior thereto so as to prevent the running of the statute of limitations, and that, as the full statutory period of six years after the note matured without any recognition thereof by the defendants or either of them to renew it, expired before such voluntary appearance, the defendants were entitled to the benefit of the statutory bar to the cause of action to recover thereon. A judgment in favor of defendants was accordingly rendered.</p>

J. Votje, Circuit Judge. Action to rescind a conveyance of land alleged to have been made under such circumstances as to constitute a fraud upon tbe plaintiff. Tbe defendant was a real-estate dealer living in St. Paul. Tbe plaintiff was a farmer residing at Nortbfield, Minnesota. In December, 1899, tbe plaintiff entered into negotiations witb tbe defendant tbrongb bis agent, Merritt Moore, witb a view of purchasing a tract of farming land in tbis state.

<p>Appeal from a judgment of tbe circuit court for Douglas county: A.. J. ViNje, Circuit Judge.</p> <p>In 1891 one Michael S. Bright, as guardian, sold a tract of land by deed to one Elsroad, and received a mortgage bach for about two-thirds of the purchase price, $21,500, due one half in one and the other half in two years. The mortgage provided that in case of platting into not more than sixty-sis lots releases should be made of individual lots for a proportionate part of the amount due. Elsroad platted the tract into sixty-four lots, and about July 7, 1891, by warranty deed, conveyed to the defendant, GTiarles A. Erhart, and one Thompson, thirty-one lots, providing in said deed that tbe grantees assumed and agreed to pay one balf of said mortgage. At abont tbe same time be deeded sixteen lots to one Stone, wbo, on July 28, 1891, by warranty deed, conveyed one lot to tbe defendant, tbe deed reciting, subsequent to tbe warranty against incumbrances:</p> <p>“Except that said lots are subject to a mortgage on tbe said division, and each liable for one sixty-fourtb of tbe amount due tbereon, payable in one and two years from tbe date of tbe mortgage, which second parly assumes and agrees to pay.”</p> <p>Bright having assigned tbe mortgage to tbe plaintiff, general guardian of tbe same, minors, tbe latter, in February, 1895, brought an action at law against Erhart and Thompson, based upon their assumption of one-half of tbe mortgage contained in tbe deed to them, and recovered judgment, which judgment was satisfied. He also foreclosed tbe mortgage, upon which foreclosure tbe real estate sold for less than the accrued interest. Thereafter be commenced this action against tbe defendant alone, setting up tbe mortgage indebtedness and tbe second deed, assuming and promising to pay one sixty-fourtb thereof. Defendant contended upon tbe trial that tbe conveyance from Stone to him of tbe one lot was only in completion of an understanding, bad at the time when Elsroad purchased and platted, that Erhart and Thompson were to have balf of the premises, and that Stone’s deed was merely to supply an omission in tbe earlier deed, whereby only thirty-one, instead of thirty-two, lots bad been conveyed; hence arguing that in tbe first deed they bad already assumed, inter alia, tbe portion of tbe mortgage indebtedness described in tbe deed of tbe last lot, and bad paid it in tbe settlement of the judgment first taken. Defendant also made some contention for an express agreement at tbe time of settling that judgment that tbe amount then paid should be received in full satisfaction of all tbe personal liability of either tbe defendant or Thompson for any part of tbe mortgage debt. Tbe trial court found against tbe defendant, and rendered judgment in favor of tbe plaintiff for one sixty-fourth of tbe amount found due upon tbe mortgage debt, from which the defendant appeals.</p>

<p> Contracts: Ambiguity: Parol evidence. </p> <p>A contract for trie sale of all trie lumber of certain grades “ (estimated to be about four million feet, more or less), obtained from about six million feet of wriite pine sawlogs now banked and being banked at W.”, evidently refers to trie product of a certain lot of logs, and not trie product of six million feet of logs, and parol evidence of trie situation surrounding trie parties is admissible to identify and explain wriat particular lot of logs was referred to.</p>

<p> Equity: Cloud on title: "Void, tax deed: “Defendant,” in statute: Conditional relief. </p> <p>1. Defendant’s claim that lands described in his paper title as “lot 319, on West Seventh street, town site of S., in the city of S.”, is not identical with that described in the tax certificate, on which plaintiff’s tax deed was based, as “lot 319, West Seventh street, city of S.”, is without merit, where defendant’s application for relief was founded on the theory of identity; there being in fact no room for controversy that both descriptions pointed to the same property.-</p> <p>2. In an action to remove a cloud on title to B.’s land, it appeared, among other things, that B., being under no legal or equitable liability to pay. the tax, bought a tax certificate on the land ' in question, and in due time obtained a tax deed thereon. The deed was fair on its face and duly recorded. Thereafter G-., the owner, and- the one who was then in possession, conveyed whatever rights he had to B. and put him in actual possession by attorning to him as his tenant. B.’s tax deed was invalid by reason of irregularities not going to the groundwork of the tax. A. claimed title under sale on foreclosure of a tax certificate prior in date to that on which B.’s deed was founded. A. counterclaimed, alleging his title, and prayed that B.’s tax deed be set aside and title quieted in himself. Held, that as between B. and A., the latter was equitably liable to pay the taxes; that the tax-deed title, until set aside, was the better title, and that the claims for taxes paid by B. had sufficient life to authorize the court to take notice thereof and adjudge that A., as a condition of relief, should pay into court money sufficient to cover the face of B.’s certificate and interest.</p> <p>3. In such case, A. having by his counterclaim submitted his cause of action to the court, B. became the “defendant” in the proceedings on the counterclaim within the meaning of sec. 1210ft, Stats. 1898, providing that where a tax deed or certificate is void for reasons not going to the groundwork of the tax, the party seeking relief therefrom shall, before entry of judgment, pay into court for the person claiming under such tax claims, the amount paid for subsequent taxes with interest, and on default thereof the defendant shall have judgment.</p> <p>4. In such case it appeared that B.’s tax certificate was dated May 17, 1894, and that B. purchased it from the county January 6, 1895. The judgment of the circuit court- allowed B. interest from the date of the tax certificate, and was modified by changing the time from which interest should be computed to the latter date.</p>

<p> Chattel mortgages: Mortgagee’s rights after condition brohen: Re-plevin: Undertaking: Sureties: Judgments: Motion to vacate: Abuse of discretion: Measure of damages: Interest. </p> <p>1. Tlie execution of a chattel mortgage transfers to the mortgagee-a defeasible title to the mortgaged property, which becomes absolute at law by failure to pay the debt at the stipulated time, hut is subject to the right in the mortgagor, or junior mortgagees, of redemption after breach, of the condition, and before sale.</p> <p>Ü. A mortgagee of chattels, after condition broken, has the right to the possession of the mortgaged property, and his right to recover against any person unlawfully converting the same in hostility to his rights is absolute, his damages against the person withholding possession being limited by the amount due on his mortgage debt.</p> <p>:3. Where a chattel mortgagee brings replevin against the mortgagor to recover possession of the mortgaged property, and a .junior mortgagee, who had intervened in the action, obtains possession thereof on giving the statutory undertaking conditioned for its delivery to the plaintiff, if he be entitled thereto, an intervening prior mortgagee, who was adjudged entitled to the mortgaged property, is not entitled to judgment against the sureties on such undertaking.</p> <p>•4. In such case, where the junior mortgagee fails to return the mortgaged property, the prior mortgagee is entitled to judgment against such junior mortgagee for the amount of his debt, interest and costs, provided such recovery does not exceed the value of the'property and interest to the date of the judgment from the time it was so taken into the possession of the junior mortgagee.</p> <p>.5. In such case, judgment was rendered for the intervening prior mortgagee, based -on a finding of a referee awarding damages against the junior mortgagee for the detention of the property up to the date of the judgment. On motion to vacate the judgment and modify the findings, it was conceded that the property had been turned over to the prior mortgagee soon after suit was commenced. Held, that it was an abuse of discretion . not to have made inquiry into the facts, and readjust the findings and judgment to conform to the changed conditions.</p> <p>'6. In such case, where the junior mortgagee has returned the mortgaged property, the prior mortgagee is not entitled, as damages, to compensation for the use of the property, unless it appear that he was in a situation to use and would have used it.</p> <p>7. In such case, where it appears that the property has been returned and that the prior mortgagee is not entitled to damages for the use of the property, his damages are limited to interest on the value of the property from the time it was detained, the amount of any deterioration in value on account of any act done by the junior mortgagee, and the expense of replacing the property.</p>

<p>Appeal from a judgment of tbe superior court of Douglas county: Chas. Smith, Judge.</p> <p>Tbe complaint alleged that tbe defendant, being about to build a telephone line from Superior, Wisconsin, to Minneapolis, Minnesota, on tbe 7th day of June, 1899, entered into a contract with tbe plaintiff Duval, whereby be agreed to furnish food, supplies, boarding, lodging, and shelter for all tbe men and teams that should be employed by the defendant in construction of such line, in consideration of which the defendant promised to pay specified prices per man and team, “and further agreed that the number of men so lodged and boarded should at no time be less than sixty, and the number of teams so fed and sheltered should at no time be less than eight,” and alleged performance by the plaintiff and failure by the defendant to supply either all its men and teams to be boarded by the plaintiff, or to supply so many as sixty men and eight teams; claiming due by reason of the deficit below sixty men and eight teams $1,713.33 in excess of payments made, and also claiming damages $2,332 for omission to board certain of its men and teams with the plaintiff. The answer admitted the making of a contract on the day named, alleged that the same was in writing, and annexed a copy, which was substantially identical with the terms as set forth in the complaint, except that it contained no agreement by the defendant to board either all its men and teams, or any number, with the plaintiff; alleged full payment for all men boarded; set up as defense breaches of the contract by the plaintiff in the way of failure to furnish proper accommodations and board, and by way of counterclaim again set up the making of the written contract, the breaches by the plaintiff, and claimed damages by reason of said breaches in the sum of $500.</p> <p>The reply was in the following words:</p> <p>“First. Plaintiffs deny each and every allegation of defendant’s counterclaim not hereinafter admitted, qualified, or explained. Plaintiffs admit that on or about the 7th day of June, 1899, it entered into a contract and agreement with the defendant as set forth in plaintiff’s complaint;</p> <p>“That at the time of making such agreement the defendant was about to construct a telephone line extending from the city of Superior, in Douglas county, Wisconsin, to the city of Minneapolis, in the county of Hennepin, state of Minnesota, in the construction of which it was necessary for the defendant to employ a large number of men and teams until tbe completion thereof;</p> <p>“That tbe plaintiff Stephen Duval was to furnisb food, lodging, and shelter for tbe men and teams during tbe continuance of such work as set forth in plaintiff’s complaint, for which he was to receive $5.25 per week for each man and $1.00 per day for each team so boarded, fed, sheltered, and kept, from the defendant.”</p> <p>Upon the trial it was conceded that defendant had paid, at the contract rate, for all men and teams actually boarded and sheltered. The plaintiff Duval testified that on the 7th of June he made with the defendant the written contract attached to the answer. He thereupon offered to prove by his own testimony that on the day following an oral agreement was made in modification thereof, whereby was added the promise of the defendant to supply under the contract not less than sixty men and eight teams. This offer the court ruled out on the ground that it was a variance from the contract as alleged by the complaint and reply to the counterclaim, taken together, by which the defendant might have been misled into the understanding that plaintiffs in fact rested on the contract made on the 7th of June. Defendant’s attorney filed an affidavit of surprise and absence of preparation to meet the issue of a modification thereof. Thereupon the plaintiffs rested, and judgment of nonsuit was entered, from which they bring this appeal.</p>

<p> Highways: Defects: Notice: Personal injuries: Negligence: "Witnesses: Physicians and, surgeons: Privileged communications: Statutes: Instructions to jury: Excessive damages. </p> <p>1. Where it appears that a defect in a bridge was the result of natural rot and decay, long use, the duty of inspection from time to time and the duty to repair when necessary are implied.</p> <p>2. A failure to perform such duty is negligence, and the municipality cannot escape liability therefor because its officers did not have notice of the precise defect which caused the accident.</p> <p>3. Under sec. 4075, Stats. 1898, providing that no physician shall be compelled to disclose any information acquired in his professional capacity, which was necessary to enable him to prescribe for a patient, it is not error to refuse to allow the physician, who attended plaintiff during the eleven days immediately after an injury, to testify as to her condition and symptoms as disclosed by his examination and observation, even though plaintiff had testified in her own behalf in respect thereto.</p> <p>4. Where a physician, while' attending a patient, calls in another physician, who was present at the examination of the patient, but took no part therein, and did not prescribe, such visiting physician is, pro hac vice, an attending physician, and hence precluded from disclosing any information thus acquired against the objection of the patient.</p> <p>5. Sec. 1339, Stats. 1898, as amended by ch. 305, Laws of 1899, provides that no action shall be maintained by a husband on account of injuries received by a wife, but gives no right of action to the wife for loss of her services or expenses incurred. In an action for personal injuries to a married woman, sustained by reason of a defective highway, it was held that a verdict is excessive, where, by the instructions given, the jury were left to infer that they were at liberty to allow the wife damages for the loss of her services and the expenses of her sickness, and they have evidently done so.</p>

<p>Appeal from a judgment of tbe circuit court for Douglas county: A. J. ViNJE, Circuit Judge.</p> <p>Action by plaintiff in Ms own behalf as a taxpayer of Douglas connty, and in behalf of all other persons similarly situated, to restrain such county from paying certain sheriff’s bills for services and expenses, theretofore audited by its county board, upon the ground that the county was not liable therefor, and to obtain an accounting as to moneys paid said sheriff to which he was not entitled, and to recover the same for such county. At the commencement of the trial it was decided that evidence of the details of bills should be omitted till a decision should be reached as to whether any of them, paid or unpaid, were illegal, and that if any were so found, evidence should then be taken to enable the court to properly state an account between the county and the sheriff, charging him with money to which he was not entitled and crediting him with what he was entitled to and with the legal portion of the unpaid bills.</p> <p>The findings, omitting formal matters, and all matters not material to the decision of the cause, are in brief as follows: In 1895 Douglas county, by appropriate action of its board, changed the method of compensating its sheriff for services rendered, for which the county was liable, except for keeping and maintaining prisoners ill the county jail, from the fee to the salary system. At the time for fixing the salaries of the county officers to be elected in 1898,-the county board resolved that the sheriff to be elected “shall receive no salary or allowance by way of salary or otherwise from Douglas county.” No other action than the passage of such resolution was taken to change the system of compensating the sheriff back to the fee system. The defendant was elected sheriff for Douglas county for the term commencing in January, 1899, and he served during the whole of such term. Bills for services and expenses were audited in his favor by the county board to the amount of $52,880.40, about two fifths of which have not been paid. He supposed, when elected and during his term of office, that the action of the board in 1898 restored the fee system of compensating the sheriff. The paid and unpaid bills include charges of the following nature: $1.50 per case for attending municipal court of Douglas county with prisoners arrested on criminal warrants, the attendance in each case not exceeding one-half day; twenty cents for travel in each of several vagrancy cases, the warrant being served in each case after the accused had been taken into the custody, of some police officer, and the travel in each case being about one mile; pursuing criminals outside the state of Wisconsin in numerous cases, in some instances the accused persons being apprehended and brought back to Douglas county for trial, and in some not so brought back; in the latter cases the charges for services being made on the per diem basis of $5 per day and expenses for all services outside the state, except in a few instances where the charges were on a mileage basis of ten -cents per mile; pursuing criminals outside the state, where the offenders were brought back, the charges being on the basis of per diem fees and expenses for services outside the state, and on a mileage basis to and from the state line, each bill being certified by the district attorney, as to the necessity for the pursuit and the reasonableness of the charges; obtaining the attendance of witnesses from without the state;, unsuccessful pursuit of witnesses on criminal warrants within the state; the charges being at the rate of $5 per day; unsuccessful trips to arrest persons on criminal warrants within the state, who were subsequently arrested, the charges in such cases being on the mileage basis of ten cents per mile, the bills in all such cases being verified by the district attorney as,to the necessity for the pursuit and the reasonableness of the charges; travel at ten cents per mile and expenses in taking persons to the state prison, no compensation for such services having been fixed by the county board in advance; conveying persons to the House of the Good Shepherd at Milwaukee and the Industrial School at Waukesha, the basis of the charges ffieing ten cents per mile and expenses, and the charges being approved by the county judge; $5 per day for four days per trip in taking persons to the State Hospital for the Insane at Mendota, and taking persons to the House of the Good Shepherd at Milwaukee and the Industrial School aforesaid, the time actually spent being one full day and parts of two days, and the bills being -approved by the county judge; pay for assistance in taking persons to the state prison, there being no certificate of a •proper or any officer as to the necessity therefor, the offense in each case, however, for which the convict was sentenced, being of a serious nature; expense of telegrams sent and received in effecting the apprehension of offenders; raiding public gambling houses without making arrests; assistance in quelling a riot; time for two officers in taking persons to 'the workhouse, where only one was employed; services and •expenses, assisting the coroner in investigating the cause of •death in certain cases, and pursuing and apprehending the person supposed to be criminally guilty of causing the death, mo warrant having been obtained or order of the court to make such pursuit and arrest; services in temporarily caring for persons charged with being insane till such time as "their causes could be heard and passed upon by the county .judge. The salary incident to the office of sheriff for 1899 ■was $1,500 per year if the salary system was then in force. In that event the sheriff received, during his term of office, ■for services for which the county was liable, more than the .amount to which he was entitled. Some of the sheriff’s bills were not itemized as the law requires. The county board intended, by its resolution passed in 1898, to restore the fee ¡system for compensating the sheriff. (The court arrived at that conclusion hy the consideration of parol evidence admitted over objection of counsel for plaintiff.) The sheriff’s bills were all reasonable and were incurred under the direction of the district attorney. It had been the practice in Douglas county to run tbe sheriff’s office as respondent Snyder did for a period of some ten years before tbe commencement of bis term of office, as regards pursuing outside tbe state persons accused of criminal offenses committed in Douglas county, and to receive pay therefor, and plaintiff knew that fact and that Sheriff Snyder was following such practice during bis term.</p> <p>Upon such conclusions of fact tbe court decided that the plaintiff bad no cause of action, and that tbe complaint, should be dismissed with costs; and it was dismissed accordingly and judgment rendered against plaintiff.</p> <p>To tbe point that tbe court erred in finding tbe county bad returned to tbe fee system of compensating tbe sheriff, were cited, Fredrick v. Douglas-Co. 96 Wis. 411; 4 Am. & Eng. Ency. of Law, 375; State v. Comm’rs of Lincoln Co. 18 Neb. 283; Veeder v. Lima, 19 Wis. 280; Striker v. Kelly, 7 TIill, 11; Atkins v. Kinnan, 20 ^Wend. 249; Comm’rs of Hamilton Co.' v. Mighels, 7 Ohio St. 115; 7 Am. & Eng. Ency. of Law (2nd ed.), 1008; Hanna v. Comm’rs of Putnam Co. 29 Ind. 170;. Trester v. Sheboygan, 87 Wis. 496; Milwaukee Co. v. Isen-ring, 109 Wis. 9; Hoboken L. & I. Co. v. Hoboken, 36 N. J-Law, 540; 17 Am. & Eng. Ency. of Law, 263.</p> <p>They contended, inter alia, that plaintiff should have requested tbe county board to prosecute before bringing suit. 2 Pom-eroy, Eq. Jur. §§ 1094, 1095; 2 Dill. Mun. Corp. (4th ed.),. §§914, 915; Greaves v. Gouge, 69 N. T. 154; Doud v.. W. P. & S. B. Co. 65 Wis. 108; Franey v. Warner, 96 Wis. 222; Eschweiler v. Stowell, 78 Wis. 316; Land L. & L. Co. v. McIntyre, 100 Wis. 256; Egaard v. Dahlke, 109 Wis. 371; GunningJiam v. Wechselberg, 105 Wis. 359; Graft v. Gomrrirs of Jackson Go. 5 Kan. 518-522. Tbe county" board properly settled witb the sheriff on tbe fee basis. 1 Dill. Mun. Corp. § 300; Hark v. Gladwell, 49 Wis. 172;. Duluth, 8. 8. é A. B. Go. v. Douglas Go. 103 Wis. 75; People ex rel. Bacon v. King Go. 38 Hun, 373. Tbe county board were authorized to return to tbe fee system. 15 Am. & Eng. Ency. of Law, 1038; State ex rel. Coogan v. Barbour, 53 Conn. 76; Pond v. Negus, 3 Mass. 230; Comm, v. Pittsburg, 14 Pa. St. 177; Mead v. Nelson, 52 Wis. 402. Compensation for services outside tbe state was properly allowed. Crocker, Sheriffs, § 90; Tbroop, Pub. Off. § 448 ; Smith v. Birdsall, 9 Johns. 328; People ex rel. Hilton v.Supers, 12 Wend. 257; Grofut v. Brandt, 58 N. Y. 106; Gallagher v. Bgan, 2 Sandf. 742; Benedict v. Warriner,. 14 How. Pr. 568; Fernelces v. Milwaukee Go. 43 Wis. 303; Sargent v. Comm’rs of La Plata Go. 21 Colo. 158; State ex' rel. Supers Buffalo Go. v. Allen, 23 Neb. 451. Expenses-without tbe state were properly allowed. Mechem, Pub. Off. § 877; Tbroop, Pub. Off. § 495; U. S. v. Flanders,. 112 U. S. 88; Powell v. Newburgh, 19 Johns. 284; Minot' v. Boxbury, 112 Mass. 1; Barneart v. Patterson, 48 N. J. Law, 395; Kollock v. Dodge, 105 Wis. 187; Fredrick v. Douglas Go. 96 Wis. 411. Tbe bills of tbe sheriff were not defective for failure to properly itemize them, and any such-defect was waived. Parker v. Grant Go. 1 Wis. 418; ■Baton v. Manitowoc Go. 40 Wis. 672; Outagamie Go. v. Green-ville, 77 Wis. 171; Doty v. Sauk Go. 93 Wis. 102; Deissner v. Waukesha Go. 95 Wis. 588; Grimm v. Jefferson Co. '62 Wis. 572; Hhart v. Langlade Go. 107 Wis. 569; People ex rel. Sherman v. St. Lawrence Go. 30 How. Pr. 173, 180, 181. A county board in tbe audit, adjustment, allowance, or disallowance of a claim against tbe county exercises judicial functions, and, having exclusive jurisdiction, its judgment, in tbe absence of fraud, is conclusive. La Salle Go. v. Milligan, 143 Ill. 321; Outagamie Go. v. Greenville, 77 Wis. 165; Land, L. & L. Go. v. McIntyre, 100 Wis. 262; ■Chicot Go. v. Tilgham, 26 Ark. 461; Boone Go. v. Dills, 5 Ky. Law Rep. 135; McFarland v. McGowan, 98 Cal. 329; Bnelson v. State ex rel. Gomm’rs Madison Go. 16 Ind. 29; ■Gomm’rs of Warren Co. v. Gregory, 42 Ind. 32; Fitzgerald ■v. Harms, 93 Ill. 372; Coolc Go. v. Ryan, 51 Ill. App. 190; Carroll v. Board of Police, 28 Miss. 38; People ex rel. Baldwin v. Sup’rs Livingston Go. 26 Barb. 118; Gox v. Mayor, etc. 103 N. Y. 519; Ileald v. Polls Go. 46 Neb. 28; McCoy v. Able, 131 Ind. 417; Wood v. Bangs, 1 Dak. 172; String-ham v. Winnebago Go. 24 Wis. 594; State ex rel. Gomm’rs Buffalo Go. v. Allen, 23 Neb. 451; Gomm’rs of Garfield Co. v. Leonard, 3 Colo. App. 576; Sup’rs Onondaga Go. v. Briggs, 2 Denio, 26; Painter v. Polls Go. 81 Iowa, 242; Douglas Go. v. Bennett, 61 Neb. 660. The action was properly dismissed by reason of the laches of plaintiff and for want of equity. High, Inj. § 225; Frederick v. Douglas Go. 96 Wis. 411; Webster v. Douglas Go. 102 Wis. 181; Fagle River v. Oneida Go. 86 Wis. 269; Tash v. Adams, 10 Cush. 252; Painter v. Polk Go. 81 Iowa, 242; Ferguson 'v. Landram, 5 Bush, 230; Travis v. Ward, 2 Wash. 30; Daniels v. Tearney, 102 U. S. 415; Yickery v. Gomm’rs Hendricks Go. 134 Ind. 554; Sperry v. Kretchner, 65 Iowa, 525; Wood v. Bangs, 1 Dak. 172; State ex rel. Gomm’rs Buffalo Go. v. Allen, 23 Neb. 451.</p>

<p>Appeal fiom an order of the superior court of Douglas-county: Ohas. Smith, Judge.</p> <p>The plaintiff brings this ¿ction, on behalf of himself and other creditors of the Bank of West Superior, against the defendant, to enforce his statutory liability as a stockholder of said bank. The complaint alleges (1) that the Bank of West Superior was a hank organized under the laws of this-' state, with a capital of $50,000; (2) that the hank made a voluntary assignment on December 23, 1896; (3) that it was then grossly insolvent, owed large sums of money, had closed its business, and had no assets or property; (4) that at the time of-such assignment the plaintiff was a depositor in said hank; (5) that plaintiff filed his claim, and has received a dividend, and that there is now due him $1,0YJ.81 .and interest; (6) that .in December, 1900, a suit was begun by a creditor to enforce the liability of all stockholders under the statute, and that the summons and complaint was served on all the stockholders that could be found in the •state; (J) that defendant was not within the state, could not be found, and was not served; (8) that plaintiff became a party plaintiff in said suit in January, 1901; (9) that ■said suit, as to defendant, was dismissed on May 14, 1901, without prejudice; (10) that .on said last-mentioned day judgment was entered in said action in favor of the plaintiff creditors for the amount of their claims against all of the stockholders except defendant; (11) that before this •action was begun an execution was issued on said judgment, .and was returned wholly unsatisfied; (12) that said judgment is wholly unpaid, and each of the judgment debtors is insolvent; (13) that defendant was a stockholder in said 'hank, holding thirty-four shares, of the value of $3,400; (14) that all the assets of the bank have been disposed of .and distributed to creditors, and were not sufficient to pay its creditors.</p> <p>The defendant demurred on the ground that the court had no jurisdiction of the action, that there was a defect of parties defendant, and that the complaint does not state facts •sufficient to constitute a cause of action. Overruled, and defendant appeals.</p>

<p> Highways: Personal injuries: Negligence: Traction engines■: Pleadings. </p> <p>In an action for personal injuries alleged to have been occasioned * by a defective highway, the complaint set forth, among other allegations, that, in the highway in question, there was a ditch or gully four or five feet deep, close up to, and partially under, the traveled track, obscured from view by the presence of a rank growth of weeds; that the same had existed for at least three months; and that plaintiff was injured while propelling a traction engine on which he was riding, by the ground giving away at the point where the ditch was. located, whereby plaintiff and the engine were precipitated into the ditch. Held, that the complaint stated facts showing that the highway was insufficient for ordinary travel, and that there was nothing in the complaint to warrant an inference that the injury was the re- <■ suit of the breaking down of a reasonably safe highway,</p>

F. DuNwiddie, Circuit Judge. This is an action originally brought in justice’s court to recover the penalty for failure to discharge a mortgage imposed by section 2256 of the Wisconsin Statutes for 1898. The answer was a general denial. The plaintiff recovered judgment in the justice’s court, and the defendant appealed to the circuit court, where a jury trial was had.

E. Duhwiddie, Circuit Judge. This is the second appearance of this action in this court. It first came here on an appeal from an order overruling a demurrer to the complaint. 104 Wis. 464. Held: and it was voted to build a church .building to cost not less than $10,000, and that subscriptions therefor were secured on condition that, with the insurance money on hand of about $3,000, the sum of $10,000 should be collected.

Aepeal from a judgment of tbe circuit court for Jefferson county: B. F. DuNwiddie, Circuit Judge. ' One Laura Augusta Armitage (born Sandberg), having died at Ft.

E. DuNwiddie, Circuit Judge. Tbis is an action against tbe defendant Dooly and one Brisk upon a joint and several promissory note for… Held: and tbe loans of tbe bank were examined by tbe full board of directors ; that among tbe notes held by tbe bank which were examined by tbe board was tbe note in question, signed by Prisk and Sears, but not then indorsed by Dooly; that be (Humiston) called Sears’ attention to the note, and Sears said tbat Jim Dooly bas to sign tbat…

EekoR to review a judgment of the circuit court for Milwaukee county; Eugene S. Elliott, Circuit Judge.

<p>Appeal from a judgment of the county court of Dodge county: J. A. Babhey, Judge.</p> <p>This is an action to recover two thirds of the value of certain repairs alleged to have been made by the plaintiff upon a milldam owned by the defendant Laura, A. Hustis, and also for damages for the failure to furnish water from the canal supplied by said dam to the plaintiff’s mill. The answer of the defendants admitted the ownership of the dam, and admitted that the plaintiff was entitled to draw 875 square inches of water from an aperture in the canal, but denied the making of any repairs by the plaintiff, and alleged that, if there was any failure of water, it was on account of a deficiency of water in the river, for which they were not liable. The answer also set up the six-year statute of limitations as a defense. A jury was impaneled to try the action, and the plaintiii moved for a reference, for the reason that.a trial involved the examination of a long account. This motion was granted, and the defendants excepted to the order. The action was afterwards tried before the referee, and from the evidence it appeared that on the 18th of August, 1864, the defendants, by warranty deed, conveyed to one Frank Koenig and' the plaintiff a certain piece of land on the margin of Rock river, together with the right to draw as much water “to propel machinery on said land as can be drawn through a square opening in the side of the canal or mill race, or aperture, of the size of 875 square inches,” under a head of seven feet above the bottom of the millrace1, subject, however, to1 the prior right of one Cole and two other parties to draw water from said millrace. The deed contained the following covenant on the part of the parties of the second part:</p> <p>“That the said parties of the second part, their heirs or assigns, shall make one third of all the repairs on the mill-dam next above the said grist or flouring mill across the said river, and one third of all the repairs needed on the canal or millrace from the said dam by which the water may now or at any time thereafter be drawn therefrom, it being the true intent and meaning of this deed that the said parties of the second'part shall take precedence in the use of said 875 inches of water over all parties, . . . subject only to the duty aforesaid of promptly making the said repairs on the said canal or millrace and the said milldam, as the same may become necessary.”</p> <p>The deed further contained the usual covenants on the part of the defendants of seisin against incumbrances and of quiet possession. At the time of the making of this deed, Laura A. Hustis was the owner in fee of the premises deeded, and' also of the milldam referred to in the deed and the canal and millrace. This milldam was situated at Ilustisford in Dodge county, and lay across the Rock river. The lot conveyed by the deed aforesaid was below the dam, and no part of tbe dam was in terms conveyed by the‘deed. It further appeared that by subsequent conveyances all the rights under the deed aforesaid became vested in the plaintiff in the year 1870. The plaintiff claims that, beginning in the year 1870, and running np to the year 1894, when this action was commenced, he made necessary repairs upon the dam amounting to more than $1,200 in the aggregate, such repairs amounting in some years to not more than $25, and in other years to several hundred dollars; that at various times he asked the defendant Jolm Hustis to assist in the making of these repairs, but that he refused to give any assistance .on the ground that he had no benefit from the dam. The plaintiff further claimed that during a number of years between 1874 and 1891 he received no water through the canal for a number of months during each year, and was damaged thereby in the aggregate in the sum of $3,600. The referee found that there was no covenant on the part of the defendants to pay two thirds of the repairs upon the dam, but that the defendants were liable for two thirds of such repairs from August 18, 1888, until August 18, 1894, the date of the commencement of this action; that all the claims for repairs prior to 1888 were cut off by the statute of limitations; that the sum of $332 had been paid by the plaintiff for repairs during the six years prior to the commencement of the action, less the sum of $19.92 paid by the defendants by furnishing gravel for such repairs; and that the plaintiff was entitled to recover two thirds of such repairs from'the defendants, amounting to $201.42. The court modified the report of the referee by finding that the defendants, by virtue of said deed of August 16,' 1864, covenanted to pay two thirds of the necessary repairs upon the dam, and that the statute of limitations does not apply to the claim for such repairs, and that the plaintiff is entitled to judgment for the sum of $999, being two thirds of the repairs made by the plaintiff upon the dam from the year 1870 up to the commencement of this action. Judgment Vas entered for the plaintiff in accordance-with these findings, and the defendants appeal.</p>

<p> Deeds: Conveyance subject to prior grants: Covenants of warranty: Construction. </p> <p>Where a'deed of a mill lot, granting 875 square inches of water through a described aperture in the grantor’s miildam, contained full covenants of warranty, and, in the granting clause,: expressly provided tliat the grant was subject to the rights of grantees under previous deeds, but there was no expressed exception recited in the covenants of warranty, the exception in the granting clause also applies to and limits the covenants.</p>

<p> Appeal: Record: Bill of exceptions: Ejectment: Recovery' for improvements: “Color of title:” Administrator’s deed: Statutes: Evidence: Presumptions: Betterments: Constitutional law: Good faith. </p> <p>1. Where the recitation that a bill of exceptions contains all the evidence is disputed by facts appearing on the face of the bill, the supreme court, as to all questions dependent on such facts, will treat the case as though such recitation were false, and indulge in every legal intendment to support the judgment.</p> <p>2. A deed by an executor or administrator pursuant to a contract made by his decedent is declared by sec. 3911, Stats. 1898, to be effectual to pass the estate contracted for as fully as if the contracting party himself were still living, and then executed the same. H., a life tenant in fact, hut holding lands under an adjudication that she owned the fee, contracted to convey to D. by “a good and sufficient deed,” free from incumbrances except taxes. On her death her administrator, pursuant to an order of the proper court, conveyed to D. “all the right, title and interest of the said H.” in and to the lands described in said contract. Held, that D.’s title being upon his contract, deed, and the statute under which it was executed, it sustains a finding that he had “color of title,” and D. is therefore entitled, under the provisions of sec. 3096 (allowing an unsuccessful defendant in ejectment to recover for improvements only while holding by color of title, etc.), to recover for taxes he had paid and improvements he had made. Fcflcfo v. Marsh, 88 Wis. 680, distinguished.</p> <p>3. Sec. 3082, Stats. 1898, provides that a plaintiff in ejectment may, in addition to the recovery of possession, recover for rents and profits of the premises during the time they were withheld, not exceeding six years prior to the commencement of the action. In an action, by the unsuccessful defendant in an action of ejectment, to recover for improvements, it appeared that the plaintiff in the ejectment action had therein recovered judgment for rents and profits, but for what period it was uncertain, the evidence in that regard not being preserved in the bill of exceptions. Held, that it will be presumed that the trial court did not exclude evidence as to any rents and profits which were properly a setoff against a recovery for improvements.</p> <p>4. Secs. 3096 et seq., Stats. 1898, authorizing an únsuccessful defendant in ejectment to recover for improvements, are not unconstitutional.</p> <p>5. The mere fact that improvements were made by the unsuccessful defendant in ejectment after notice of plaintiff’s claim, and pending the ejectment action, is not evidence of bad faith.</p> <p>6. Where an unsuccessful defendant in ejectment takes possession under a contract of purchase, and pursuant to its terms, the deed of the vendor, when made, relates back to the date of possession under the contract, and entitles him to recover for improvements from that date.</p>

<p>Wills: “Other provision” for widow: Election: Dower: Eomesteadr Bequest of personal property: County court: Petition: Jurisdiction: Appeal and error: Printed case.</p> <p>1. Where a testator devised to his wife a quantity of personal property which she took, and on which she realized $681, such bequest is a “provision” made for her by will within the calls of sec. 2171, Stats. 1898, providing that if any lands he devised to a woman, or other provision be made for her in the will of her husband, she shall make her election whether she will take the lands so devised or the provision so made, or . whether she will claim the share of his estate as otherwise provided in said statutes.</p> <p>2. In such case the widow is put to an election, and is barred of her dower and homestead by refraining from filing the required notice, without regard to whether the will gives her all that the testator, in fact, intended, unless the will makes-clearly apparent an intention that she shall have both the-provision thereby made, and also dower and homestead.</p> <p>3. Sec. 2173, Stats. 1898, providing for endowment anew when the-widow is deprived of the provision made for her by will, or otherwise, in lieu of dower, does not apply where a will has been authoritatively construed to give the widow certain personal property, which she received and retained, and she has failed to make an election in the manner prescribed by statute.</p> <p>4. A judgment of the county court upon petition for construction of the will, adjudging that the widow “take such interest in, or use of, the real estate belonging to said estate as she is entitled to under the law,” affirmed by the supreme court, is not res a&ju&icata as to her right to dower and homestead, only such interest as the law gave her in the situation there presented.</p> <p>5. Upon petition to the county court for construction of a will, the question presented is merely the disposition made of the property by the will, and the court is without jurisdiction to adjudge that the widow is entitled to dower or homestead in any particular land, independent of the will.</p> <p>6. A printed ease in which a will is printeu five times in extenso, and also containing all the formal parts of an inventory of the estate, including affidavits of appraisers, violates Supreme Court Rule VIII, providing that the printed case on appeal shall contain only an abstract or abridgment of so much of the record as may he necessary to full understanding of the questions presented.</p>

On January 7, 1902,.application was made in tbis court for leave to commence an action on behalf of the state against Albert G. Frost, as receiver of the Washburn, Bay-field & Iron River Railway Company. An order to show cause was issued, returnable January 14, and the motion was then granted.

<p> Logs and timber: Contracts, entire or separate: Penalty: Liquidated damages: Consideration: Evidence: Court and jury: Instructions to jury: Appeal: Exceptions: Questions reviewed: Pleading: Reply: Inconsistent defenses: Prejudicial error. </p> <p>' 1. A contract for the cutting, floating, and booming of all the logs on a certain tract of land, which provides for payments in instalments as the work progresses, with a reservation of one third to be- paid when the entire amount was boomed, is not an entire contract in the sense that full performance must be shown in order to entitle the contractor to recover anything; but he, having performed part, may recover for such part, although he shows no legal excuse for failure to perform the whole, subject, however, to a deduction for actual damages, suffered on account of any breach of the contract.</p> <p>2. In such case, the one third reserved until full performance is: a penalty, and not liquidated damages.</p> <p>3. A land owner contracted with A. to cut, float, and boom logs from a certain tract of land, — the removal to be done in the. manner directed by the owner. Thereafter B. entered into a contract with A., whereby B. was to remove and boom the logs from a portion of the tract, but B. was not bound by his-contract to accomplish that result in any particular way. B. had banked part of the logs in a creek, intending to float them out, when the land’ owner refused to permit such operation. Held, that a modification of the contract relieving B. from the-duty of cutting and floating all the logs, and requiring him to-turn in with his whole force and haul the logs out of the creek at a certain rate per M., was supported by a sufficient consideration.</p> <p>4. A lumberman, required by his contract to cut, float, and boom-all logs from a specified tract during the then logging season,, quit work between the 12th and 20th day of March, the weather being soft, and the water in the creek, where they were necessarily hauling the logs, having raised from two to three feet. The snow was nearly gone, and there was no snow where the.logs were loaded. Thereafter the weather turned cold, and there was from ten to twelve days of good weather for hauling. Held, under the conditions shown, and considering the time of the year, that the.evidence was sufficient to. sustain a finding that the work had progressed as long as ,the judgment of a reasonably prudent man, engaged in such business, would have, dictated.</p> <p>5. In such case the evidence would not support a verdict that plaintiff was negligent in breaking camp when he did.</p> <p>6. The question of the correctness of instructions to the jury,. which were refused, is not open to consideration on appeal, where no exceptions are taken to the ruling until after the verdict.</p> <p>7. Under sec. 2657, Stats. 1898, providing, with certain restrictions, that the defendant may set forth, by answer, as many defenses, etc., as he may have, plaintiff, in his reply to defendant’s-counterclaim, may set up defenses, based on inconsistent legal theories.</p> <p>'8. A reply to a counterclaim setting up inconsistent defenses, if erroneous, does not affect the determination of material issues, where there was but one defense. relie'd upon and submitted to the jury, and no objection was made to the form of the pleading in the trial court.</p> <p>'9. Where evidence is offered and rejected, but the ruling did not preclude the introduction of other evidence, it is not prejudicial error, after argument to the jury had begun, to permit the withdrawal of the objection and the introduction of such evidence at that time.</p> <p>Baedeest, J., dissents.</p>

<p> Estates of decedents: County courts: Jurisdiction: Wills: Probate: Notice: Circuit courts: Findings: Practice: Witnessing of will: Presumptions: Appeal and error: Questions reviewed. </p> <p>1. Under sec. 4173, Stats. 1898 (declaring that “the affidavit of the printer, or foreman of such printer, of any newspaper in the state, of the publishing of any notice or advertisement required to he published in pursuance of any law of the state, shall he received in all cases as presumptive evidence of such publication and of the facts therein stated”), a statement in an affidavit of a printer that the first insertion of a notice of the time and place of proving a will, given pursuant to secs. 3787 and 3805, was on April 30, and that the last insertion was on May 4 of the same year, will control a general statement, made in the same affidavit, that the publication was for three weeks.</p> <p>2. Such, affidavit is insufficient to show jurisdiction over the heirs of deceased, but where the county court, after a hearing at the time and place duly appointed therefor, has admitted the will to probate and issued letters, such proceedings are not invalid as to an heir who has been duly notified, or who has appeared or assented to, or ratified the proceedings.</p> <p>3. On appeal from an order or judgment of the county court admitting or refusing to admit a will to probate; the circuit court proceeds as a court of equity, and, on appeal to the supreme court, the mere absence of findings of fact does not necessitate a reversal, if the evidence supports the judgment rendered.</p> <p>4. It is not essential that a testator sign in the presence of the witnesses, if he has in fact signed prior to the time they do, and, in the absence of clear proof that the witnesses signed before the testator did, it will be presumed that the testator signed first.</p> <p>6. A writing by a decedent declared therein to be his will, giving to two of his children “forty acres of land . . . situated on sec. 12, town 4, range 8, or one thousand dollars” is held to be in form a will, and properly admitted to probate as such. ■</p> <p>6. The judgment admitting such will to probate expressly reserved the question of its construction. On appeal from such judgment, it was held that the question as to whether the will was void upon its face for uncertainty was not presented, the only question being whether it had been properly admitted to probate.</p>