Volume 114 — Wisconsin Reports

S. Geiswold, Judge. The plaintiff, then about thirty-five years of age, having been long a sufferer from uterine trouble, which, however, did not incapacitate her from doing the ordinary work of a farmer’s wife, went for treatment to the defendant, who maintained at Oconomowoc a sanitarium for the treatment of chronic diseases of various sorts.

<p> Malicious prosecution: Security for costs: Appealable order: Evidence: Witnesses: Cross-examination: Impeachment: Hearsay: Special verdict: Practice: Probable cause: Instructions to jury. </p> <p>1. Under sec. 2942, Stats. 1898, providing that any court of record in which a civil action may he pending may, in all cases where it shall appear reasonable and proper, require the plaintiff to give security for such costs as may be awarded against him, an application for an order requiring security for costs is addressed to the sound discretion of the trial court.</p> <p>2. No appeal lies from such order, it not being enumerated in sec. 3069, Stats. 1898, as one of the orders from which an appeal may be taken.</p> <p>3. On cross-examination of a party he was asked if a part of the time he had lived in a certain locality he had not been in jail. It did not appear, and the witness was not asked, whether he had ever been convicted of any criminal offense. Held, that the exclusion of such question was not error. Sec. 4073, Stats. 1898, authorizes proof of conviction of a criminal offense for the purpose of affecting the witness’s “credibility, either by the record or by his own cross-examination,” and the mere fact of his having been in jail is without significance.</p> <p>4. It is not error to exclude a question put to a party on cross-examination, as to whether some years before six witnesses had testified that his reputation for truth and veracity was bad. Such testimony is hearsay and not legitimate cross-examination, and not a proper way of impeaching the party as a witness in his own behalf.</p> <p>5. It is not error to refuse to allow an impeaching witness to testify that, in another cause in which the plaintiff was a witness, he found eighteen witnesses who would not believe him under oath.</p> <p>6. In an action for malicious prosecution the important issue on the trial was, whether the defendant procured the arrest of the' plaintiff maliciously and without reasonable or probable cause to believe him guilty of the offense with which he was charged. Upon one of the questions submitted as part of a special verdict, the court instructed the jury: “If you find from the evidence that there was a general rumor . . . known to the defendant before the commission of said alleged offense . . . then you may take into consideration such fact, with the other evidence in the case, on the question of probable cause, and on the question of the defendant’s acting in good faith and without malice.” Defendant assigned as error the refusal to submit, as part of the special verdict, the question: “Was there a rumor in W., at the time the plaintiff was arrested on the charge of removing and concealing chattel-mortgaged property, that he was guilty thereof?” Held, not error, the question of general rumor having been by said instruction submitted to, and necessarily considered by the jury in its answer to the question of the special verdict submitted.</p> <p>7. Under sec. 2858, Stats. 1898, requiring the trial court to “direct the jury to find a special verdict ... in the form of questions, in writing, relating only to material issues of fact, and admitting a direct answer, to which the jury shall make answer in writing,” the form of the verdict is in the discretion of the court, subject to the qualification that it must be limited to such questions of fact as are controverted and put in issue by the pleadings, or, at most, to such as might properly have been put in issue thereby.</p> <p>8. A special verdict is not designed to elicit from' the jury a mere abstract of the evidence, and questions relating merely to evi-dentiary facts are erroneous.</p> <p>S. In framing a special verdict it is error to split up important questions put in issue by the pleadings into a number of minor questions, the determination of some of which settle nothing so put in issue.</p> <p>10. In an action for malicious prosecution, it is error to submit by separate questions, whether the defendant instituted the prosecution maliciously, and also whether he procured the warrant to be issued maliciously.</p> <p>11. In an action for malicious prosecution, it is error to refuse to instruct the jury that the burden of proof to show want of probable cause was upon the plaintiff.</p> <p>12. In actions for malicious prosecution, prohable cause or want of' probable cause necessarily depends upon what the prosecuting party knew or ought to have known at the time of instituting, the criminal prosecution, and hence, in the absence of a certificate of the magistrate, under secs. 4760, 4791, Stats. 1898, that', the complaint in the criminal action was wilful and malicious, and without probable cause, the acquittal is not prima facie evidence of the want of probable cause. Bigelow v. Bieldes, 80' Wis. 98, distinguished.</p> <p>13. In such action it is not error to refuse to instruct the jury that: “the fact'that plaintiff was discharged upon his trial in the-criminal case is not conclusive evidence of want of probable-cause.” The instruction should have been, “The acquittal of' plaintiff in such criminal action is no evidence of want of probable cause.”</p> <p>14. In submitting a special verdict it is error to inform the jury what would entitle plaintiff to recover, and, by grouping several questions together under general instructions, fail to-charge the jury with instructions appropriate to each question.</p>

<p> Railroads: Appeal and error: Motion for new trial, when not necessary: Practice: Master and servant: Negligence: Personal injuries: Presumptions. </p> <p>1. Where there has been a motion for a direction of a verdict with due exception properly preserved in the record, the supreme court will review the evidence in order to determine whether the motion should have been granted.</p> <p>2. In such case a motion for a new trial is not necessary.</p> <p>3. Plaintiff, a railway brakeman, was injured while coupling cars. The train crew consisted of plaintiff, two other brakemen, and the fireman, the engineer being absent. One of the other brakemen signaled to the fireman to back to make a coupling, and two cars*were coupled, one by such brakeman, and the other by plaintiff, who then went to a third car to adjust the coupling, and, the engine continuing to back, plaintiff's hand was caught and crushed. It appeared that it was a custom on defendant’s road, under such circumstances, for the engine to continue backing until a signal was given to stop. Plaintiff had been in defendant’s employ for seven or eight years, and was familiar with its manner of operating trains. The fireman testified that he did not know that plaintiff was making a coupling. No signal to stop was given to the fireman by any one. Held, that plaintiff must be presumed to have known of the custom mentioned, and, knowing it, to have assumed the usual and ordinary risk incident thereto.</p> <p>4. In such case it cannot be said that the fireman was negligent.</p>

<p> Constitutional law: Title of legislative act: Local act: Private act: Legislative discretion: Corporations: Public lands: Mills and mill dams: Flooding of public domain: Swamp land act of 1850: Waters and watercourses: Navigable latees: Artificial level of latees: Statute of limitations: Trespass: Fishing and hunting: Hunting license. </p> <p>1. As regards sec. 18, art. IV, Const., the statement of a subject in the title of a legislative enactment is deemed to constitutionally suggest all the details thereof, including everything found in the body of the act which facilitates its object.</p> <p>2. The constitution does not require the title of a private or local legislative act to go further than to express the subject covered by the body of the law. It leaves the method of expressing such subject to legislative discretion, within all reasonable boundaries.</p> <p>3. The statement of a primary purpose in general terms in a constitutional sense reasonably includes all the means designed to facilitate the accomplishment thereof.</p> <p>4. The statement of the primary object of a legislative enactment as being the creation of a corporation for manufacturing purposes, within the meaning of the constitutional provision above mentioned suggests, as germane thereto and as part of the single purpose intended and expressed, authority to acquire and maintain a dam to create power for the use of the corporation, also to acquire lands affected by the backwater from the dam, and authority to the owners of such lands to sell the same to the corporation.</p> <p>6. Artificial flooding of lands in the public domain of the United States does not affect the title thereto.</p> <p>6. The federal swamp land act of 1850 vested in the state, as of the date the act took effect, the title to all lands determined by the general land department of the United States to be affected thereby. The decision of such land department on that question is conclusive except against' persons claiming under a paramount title.</p> <p>7. Lands of the United States, at the date of the swamp land act of 1850, approved by the proper officers of the general land department as being 'lands of the character intended to be granted thereby, were, by such act and approval, segregated from the public domain and vested in the state, regardless of whether they were, at the date of such act, artificially covered by navigable water, by trespasses upon such domain.</p> <p>8. The rule that an artificial condition of water may, by lapse of time, become a natural condition as regards public rights, does not apply in the absence of any element necessary to change the title to the land by the operation of the statute of limitations.</p> <p>9. A wrongful invasion of the right to use land for fishing and hunting is actionable regardless of the amount of the damages caused by such invasion.</p> <p>10. Every wrongful intrusion by one person upon the legal rights of another is both an injury and a damage and is a proper subject for legal redress.</p> <p>11. A state license to hunt does not confer any right upon the holder thereof to go upon lands owned by private parties without their permission.</p> <p>[Syllabus by Makshali,, X]</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. HastiNGS, Je., Circuit Judge.</p> <p>This was an action to foreclose a mortgage obtained by the plaintiff by assignment after due from L. C. Porter. The adjudication of the amount due on the mortgage is not attacked on this appeal. The defendant counterclaimed, amongst other things, for damages upon breach of a written contract made by L. C. Porter, December 29, 1888, as follows :</p> <p>“Received of Jules Parmentier and Wm. Gooli . . . thirteen hundred dollars to apply on E. B. Gardner’s lands sold L. O. Porter, and deeded him November 1st, 1886, and recorded October 12, 188Y. Sold said Parmentier and Gooh at one dollar an acre.”</p> <p>Almost immediately after the making of this agreement, disputes arose as to its execution; Porter insisting that he was required thereby to give only a quitclaim, and the defendant insisting on a warranty deed, or abstract showing-clear title to all of the property specified in the deed to Porter. This controversy continued, each party insisting on his position. In August, 1889, a formal tender was made by defendant, with a demand for, compliance according to his construction of the contract, namely, either a warranty deed covering all of said lands, or a deed without warranty, accompanied by an abstract showing clear title; and Porter reiterated his willingness to give a quitclaim deed which should cover all of the lands specified in the deed to him, although he had sold some, and although of some he confessedly had no title; also insisting that be was to be paid $1 an acre for all sncb lands, independently of whether he had any or an imperfect title. In this situation the parties entered into what is called an agreement foi arbitration by one George Beyer, on November 7, 1889. They presented to him their various contentions, and he made an award covering this and various other matters. The portion relating to this agreement is substantially as follows:</p> <p>“All the lands covered by above receipt to which L. C. Porter has title I order deeded to Wm. Gook, by deed covenanting against his own acts, upon payment of the balance due, with interest at seven per cent, from date of sale up to the time final payment is made.”</p> <p>Thereupon Porter executed a deed substantially the same as that which he had on previous occasions offered, to wit, a mere quitclaim deed, covering all of the lands received by him from the Gardner estate under the deed specified in the receipt, and deposited it with Beyer as custodian, to be delivered up on payment of $1 an acre for all the land named therein and interest in accordance with the award. That deed included certain lands which had been conveyed to Porter from the Gardner estate, but which in the interval he had sold, so that he had no title. It contained eighty acres of the same land as to which Porter had no title whatever, and it contained 120 acres the title to which was obscured by tax liens antedating the conveyance to Porter to a.considerable amount. Meanwhile Parmentier had assigned to, Gook all his rights under the agreement of sale above recited. After the delivery of that deed, Porter went to the Pacific coast, leaving it on deposit. Meanwhile Ooolc had contracted for sale of these lands at an advanced price to one Mariner, and was seriously embarrassed by any delay. He had full knowledge of all defects or variances in said deed now complained of. With that knowledge the defendant took said deed from the depositary, and paid to him the balance of the consideration therefor, in accordance with said award. Before taking it, he, or rather his attorney, pointed ont to the depositary the defects complained of, and declared that the deed did not ■comply with the award. The attorney then went and endeavored to find Porter, without success; and just before the bank closed he returned to Beyer’s office, “and told him that we would have to take the deed, but that we did not accept it as a compliance with the contract,” — pointing out his objections. He explained the reasons why they had to take it and would take it for what it was worth. “Beyer’s reply was, urging us to take it, because he was disgusted with the whole transaction, and did not want anything more to do with it.” The defendant shortly afterwards, apparently in pursuance of this conversation, procured to be paid the exact .amount called for by the arbitration, and took the deed. The court held the defendant entitled to recover as damages .-several items of expense and loss resulting from Porter’s continued refusal to comply with the contract of December 29, 1888, and from the insufficiency of the said deed to satisfy its terms, and set off such sums against the amount found due -upon the mortgage. Prom this portion of the judgment the plaintiff appeals.</p>

<p> Contracts: Construction: Breach: Instructions to jury: Evidence: Statutes: Foreign corporations: Conditions on which may transact business in Wisconsin: Validity: Constitutional law: Partnership. </p> <p>1. A lumber company contracted with a partnership, engaged in the cooperage business, to furnish “slabs, edgings, and trimmings as they came from its mills,” for which the lumber company was to be paid sixty cents per 1,000 pieces of headings manufactured therefrom. The partnership guaranteed that the lumber company should receive $25 for each 200,000 feet of lumber manufactured. Held, that there was no agreement or guaranty, express or implied, that the lumber furnished should be of dimensions and quality sufficient to enable the partnership to manufacture any specified number of pieces of headings from each and every 200,000 feet of lumber, and that instructions to the effect that there was such agreement were erroneous.</p> <p>2. In such case, although inconsistent and out of harmony with said portions of the charge which were erroneous, it is not error to charge the jury that the lumber company was “bound to furnish such material, of the same or similar character, dimensions, and quantities, in the ordinary course of business, as they had been and were manufacturing at the date of this written contract,” and, further, that the partnership had a right, under the contract, to assume that the plaintiff would not materially change its manner of slabbing its logs and trimming its lumber, although there was no express stipulation to that effect.</p> <p>3. Under such contract, plaintiff would be entitled to recover according to the terms of the guaranty, until failure to so furnish, or until there was a change in the manner of slabbing or trimming, and thereafter for what the material received was reasonably worth.</p> <p>4. In such case it is not error to allow the partnership to show an estimate, made prior to said contract, of the number of pieces of headings which could be realized from the hind of slabs, , edgings, and trimmings then coming from the lumber company’s mill, and that the contract was made with reference to such conditions.</p> <p>5. See. 17706, Stats. 1898, as amended by ch. 351, Laws of 1899, provides conditions on which foreign corporations may do business within Wisconsin; imposes penalties for failure to comply therewith; and declares that contracts made by such corporations, affecting its personal liability, or relating to property within this state, before it complies with the statute, “shall be wholly void on its behalf . . . but shall be enforceable against it.” Held, that the words “wholly void,” in said section, mean void absolutely, and not merely voidable at the option of the other party.</p> <p>6. Such statute involves no question of foreign or interstate commerce, and is valid, however harsh its provisions may seem ' to be.</p> <p>7. Where a contract is made by a partnership consisting of M. and two foreign corporations, which had failed to comply with the requirements of sec. 17706, Stats. 1898, as amended, the contract being void as to the corporate members of the partnership, M., as an individual, acquires no rights thereunder.</p>

Paeish, Circuit Judge. This is a claim by John C. Williams against the estate of his deceased brother, Daniel A. Williams, who died July 10, '1895. The claim, as filed, was to recover for nine months’ services “in planning, superintending, and building bouses” on certain lots in Ashland, at'$125 per month, from May 1st, 1892, to February 2nd, 1893, $1,125; for three months’ services upon the same premises from May 1st, 1893, to August 1st, 1893, at $65 per month, $195.

Appear from a judgment of the circuit court for Ashland county: John K. Parish, Circuit Judge. Action for damages for breach of contract of hiring for a definite time.

Parish, Circuit Judge. The plaintiff brings this action as administrator of the ■estate of D. A. Williams, deceased. The complaint shows the •death of Williams intestate, and plaintiff’s appointment and qualification as administrator. It then says that the Ashland News Company, a corporation, executed notes and a chattel mortgage to one John Thompson, for $1,500. These notes ■•and mortgage were duly assigned to Ella V. Williams.

Parish, Circuit Judge. Tbe plaintiff, having a duly transcripted judgment against one Seth Pierce, upon which execution had been returned unsatisfied, upon affidavit showing apprehension that Pierce would leave the state, procured to be issued a warrant from the county judge of Ashland county to bring said Pierce before him to answer on oath concerning his property, and to abide and perform such further or any other order as might be made.

<p> Landlord, and tenant: Covenants of lessee against negligent injury: Opinion evidence: Trial: Instructions to jury. </p> <p>1. In an action to recover of a tenant for negligence, alleged to consist in leaving an awning hanging down in a storm, whereby it was blown against and broke a plate-glass window, the question of negligence is for the jury, and it is not error to exclude the opinion of a witness that it was dangerous to do so.</p> <p>2. In such case it is not prejudicial error to submit to the jury the question of whether the window was broken through the negligence of the tenant, nor to instruct that the burden of proof on the question of negligence was on the tenant, and, if they found that the tenant was negligent and such negligence was the proximate cause of the breaking of the window, the plaintiff should recover, otherwise the tenant.</p> <p>3. The mere failure to give an instruction for which there was no request is not error.</p>

W. BubNell, Judge. This is an action in equity commenced July 26, 1897, to •compel the removal of certain obstructions alleged to have been erected and maintained by defendants in Bourth Avenue West, a public street in the city of Ashland, and to restrain •the defendants from interfering with or obstructing said street in the future.

W. Buenell, Judge. This is a-companion case to the case of Ashland v. Whit-comb, ante, p. 99, 89 N. W. 886. Tbe present action is an notion in equity commenced May 29, 1901, to compel tbe removal of certain obstructions from Second Avenue West, a public street in tbe city of Ashland, and to enjoin any further ■obstructions therein.

Dick, Judge. Taxpayer’s action to restrain payment of an alleged void • claim to defendant Warden by Bayfield county. Ob. 38, Laws of 1895, created a municipal court for Bay-field county, and provided that tbe judge thereof should bold bis office in tbe court room of tbe county court bouse, or other suitable room in the village of Washburn in said county, provided by its board of supervisors. Tbe board, by resolution, delegated its power in that regard to Warden.

Parish, Circuit Judge. On and prior to July 23, 1890, the defendants Nate and Michael Murray owned the west forty feet of the east sixty-five feet of lots 13, 14, and 15 in block 84 of Ellis’s division of Ashland.

Appeat, from a judgment of the circuit court for Ashland county: John K. Paeish, Circuit Judge. Action to foreclose a tax certificate on the sale of 1892, containing as description: Description. Sec. Town. Range. Lot, Blk, Dol. Cts. City of Áshland, Ellis division, w. 25 ft. by 68 9, 10, ft. deep of ' i 11, 12. 110. 193.28 In said county.

<p> Land contract: Foreclosure by assignee: Conveyance of legal title: Amendment of pleading. </p> <p>1. Defendant, who was in possession of land under a parol agreement for its purchase from a corporation, made a written contract therefor with the receiver of the corporation, giving notes for the purchase price. , By order of court the receiver sold the contract and notes and gave a quitclaim deed of the land to one who afterwards assigned the contract and notes and conveyed the land to plaintiffs. After the discharge of the receiver, the corporation quitclaimed to defendant. Held, that upon a conveyance hy plaintiffs to defendant the legal title would vest in the latter; that he could not retain possession as against plaintiffs without paying for the land according to the contract; and that plaintiffs were therefore entitled to foreclose the contract.</p> <p>2. Where a judgment is reversed because certain essential facts do not appear, and the cause is remanded with direction to allow such facts to be shown, it is not error, though perhaps unnecessary, to allow the complaint to be amended so as to allege such facts.</p>

<p>Appeal from an order of the circuit court for Ashland •county: John K. Paeish, Circuit Judge.</p>

PaRish, Circuit Judge. Action for money bad and received. Tbe complaint is substantially as follows: August 7, 1886, tbe county clerk of Ashland county, in its behalf, received of plaintiffs John H. Rice and James E. Paimer, $17,065.73, as payment for tbe right, title; and interest of such county in certain lands (par^ tieularly described), which sum said clerk in good faith ■represented was the full amount required to be paid in order to enable him to convey the county’s…

Pabish, Circuit Judge. In July, 1887, during a speculative boom in the city of Ashland, the plaintiff, a resident of Madison, purchased from the defendant, a large owner of property in Ashland, property described as lots 1, 2, 3, 4, 5, 6, 7, 8, 9,10, 11, and 12 in block 11 of Bardon’s division of Ashland, “which plat is not yet of record”; paying $300 down, and taking land contract containing that description.

Paeish, Circuit Judge. Replevin of a lot of lumber located at Copper Falls, Ash-land county, Wisconsin. The plaintiffs claim to be the owners of the lumber by virtue of a certain contract made with one E. H. Wicts. The latter was the lessee of a sawmill at Copper Falls. During the season of 1899 and 1900 he had put in a quantity of basswood and hemlock logs to be sawed at his mill.

Eeeoe to review a judgment of the circuit court for Wau-kesha county: James J. Dice, Circuit Judge.

The plaintiff in error was convicted of tbe crime of adultery, and brings bis writ of error to reverse the judgment. The crime was alleged to have been committed with one Sophia Olson, a married woman, on tbe 27tb day of February, 1901, at the city of Superior. One Christ Olson, tbe husband of Sophia Olson, was the principal witness on the part of the state.

Eeeoe to review a judgment of tbe municipal court of Racine county: William SmiediNG, Je., Judge. Error to review tbe judgment convicting tbe plaintiff in error for violating cb. 470, Laws of 1901, wbicb provides in. brief as follows: Sec. 1.

Ereob to review a judgment of the circuit court for Sauk county: R. G-. Siebeckee, Circuit Judge. The plaintiff in error was tried, convicted, and sentenced to state prison for uttering a forged cheek. The check as originally drawn was as follows: “IeoN CouNty BaNK. No. 84. “Crystal Palis, Mich., Aug. 5, 1901. “Pay to George Lowless or order $ 9.fifty cents .Dollars. C. T. Robeets.” The forgery consisted in putting the figure “5” before the figure “9” in the check.

H. JoimsoN, Judge. Writ of error to review the conviction of plaintiff in error of the crime of rape on a female under the age of consent. The cause was twice tried. On the first trial the jury were unable to agree upon a verdict, and the judge, exercising his discretionary power in the premises, discharged them and ordered the accused held for another trial.

M. Webb, Judge. This is an action for partition of certain real estate. The plaintiff and the defendants John D. McMillan> John Pan-ins, and Lamoni E. Brown each owned an undivided one-quarter interest. The other parties are the wives of the owners.

<p>Appeal from a judgment of tbe circuit court for Jackson county: Jakes O’Neill, Circuit Judge.</p> <p>•Tbe plaintiff claimed to own tbe N. W. ¿ of tbe N. E. J of section 14, township 22, and range 4, in Jackson county. Defendant owned tbe government subdivisions immediately south of it. There was proof of several surveys of more or less particularity, extending from 1861, but none of them, except the last, by one Reach, having any special relation to tbe east and west one-eighth section line, dividing plaintiff’s and defendant’s premises. One of these surveys was made by Adams, county surveyor, in 1883 or 1884, and shortly after that Hie fence in dispute was built by plaintiff’s predecessor in title and by the defendant. It does not appear that the line was specifically located by Adams, but he located other points in the section, and the representative of plaintiff’s predecessor (one Crombie), with the aid of another and the participation of the defendant, ran what they supposed to be the true line, and built the present fence thereon, each building half. There is no evidence of any dispute as to the true location of the line, nor of any agreement; apparently, simply a supposition that the line adopted was the true one. It appears that the premises had been separated by an old fence a number of years before, the location of which is not definitely established, but was partly north and partly south of the fence then built. That fence has continued up to the present time, accompanied by occupation, as the line, by both parties. In 1899 the defendant employed a surveyor (Reach) to make a survey, more especially of north and south lines through this section, in the course of which, however, he was obliged to locate the comers and quarter corners of section 14, from all of which the government monuments had disappeared, except the southeast comer of the section. A year later, at the employment of the plaintiff, and with the aid of the county surveyor, he repeated this survey, and located the line between plaintiff’s and defendant’s premises about four feet south of the fence which was huilt about 1884, as above stated. The action is to recover that strip.</p> <p>The plaintiff’s title was deraigned from the government down, except that, with reference to the N. W. ¿ of the N. E. J, it involved a deed attempted t6 be proved by the record thereof in the register’s office, purporting to be executed in New York, acknowledged before one Thomas Edward, Jr., .•as commissioner of deeds for the city of Brooklyn, who did not purport to affix any seal to the acknowledgment; but the record disclosed a certificate by the clerk of Kings county -and of the supreme court of the state of New York, satisfying our statute in substance, and closing with the following words: "“In testimony whereof, I have hereunto set my hand and •affixed the seal of said county and court this 22d day of April, 1886. JohN M. BaNKEN, Clerk.” The record bears no .•scroll or other indication of any seal of this officer. The record of that deed was objected to for that reason.</p> <p>The correctness of Keach’s survey as establishing the true line between the parties was submitted to the jury under instructions, and the jury returned a verdict in favor of the plaintiff, whereupon judgment was entered establishing plaintiff’s title in fee simple and right to possession, and for nominal damages against the defendant for withholding the premises, from which judgment the defendant appeals.</p>

<p> JBuilding and loan associations: Loans, to whom made: Estoppel: Effect of default in payment: Variance between contract and statute: Bidding for loans: Fixed premiums: Management by directors: Usury, who may plead: Quitclaim purchaser. </p> <p>1. Where a building and loan association has no right to loan money except to members, an application for a loan by a nonmember, the mating of the loan, and the issue of a certificate of stock to him, must be considered as parts of one transaction, making him a member, and neither he nor an assignee of the stock can be heard to question the regularity of the transaction.</p> <p>:2. Although sec. 2011, S. & B. Ann. Stats., provided that in case of default for six months in payments on a loan from a building and loan association the ‘whole amount might be collected, a provision in the bond given by a borrower, that1 upon default in payments for three months the whole principal should become due, did not affect the essence of the loan and is immaterial in an action to redeem from the mortgage, where there is no attempt to enforce such provision. [Whether the parties might legally contract for a period different from that named in the statute, not determined.]</p> <p>3. Under sec. 2011, S. & B. Ann. Stats, (providing that the by-laws. of every building and loan association, should fix the time of holding periodical meetings at which the money in the treasury should be offered for loan in open meeting, and that the-stockholder who should bid the highest premium for a loan should be entitled thereto, etc.), the meetings at which such money should be offered might be open meetings of the board! of directors where any or all stockholders might be present',, and the by-laws might authorize bids to be made in writing, filed with the secretary, by stockholders not present at the-meeting.</p> <p>4. Where no fixed rate of premium had been adopted by the directors of a building and loan association, the facts that a great, majority of loans were made at a certain rate of premium, and that the secretary had advised applicants that such rate-would probably mature their shares in a given time, do not show that an arbitrary standard of rates had been fixed.</p> <p>5. The evidence in this case (showing among other things that the-business of loaning the moneys of a building and loan association was conducted, not by the members generally, but by the-board of fifteen directors; that there were two classes of members, — borrowers and nonborrowers; and that the power of management was in the board of directors) is held not to sustain a finding of the trial court that the plan of the association was merely to loan money at high rates under that guise-in order to evade the law and avoid the penalties of usury.</p> <p>6. Dues on his stock, paid monthly by a borrower from a building: and loan association, do not reduce the principal of the loan, so as to render interest paid upon the whole amount usurious, where by the contract such dues are not to be applied on the-loan until the stock reaches its par value.</p> <p>7. Under sec. 2013, S. & B. Ann. Stats., if the interest reserved by the contract was within the legal rate, the fact that the interest and premium payments together exceeded that rate did not make the transaction usurious.</p> <p>[8. Whether, under a usury statute which only prevents recovery of interest when the proper defense is made, and requires the person setting up such defense to prove a tender of the principal sum, a mere quitclaim purchaser of premises mortgaged to secure the usurious contract may urge the defense of usury when the mortgagor has waived that right by not urging it, not determined. Ludington v. Harris, 21 Wis. 239, distinguished.]</p>

Fish, Circuit Judge. The appeal is from an order refusing to set aside a judgment dismissing the above-entitled action. The judgment was rendered April 3, 1897. The petition for the vacation thereof was made March 14, 1901. The ground for the relief sought is as follows: The case was commenced in justice’s court. It was carried to the circuit court for Kenosha county by appeal from a judgment rendered in favor of plaintiffs.

Fish, Circuit Judge. On July 6, 1899, tbe plaintiff secured a judgment of divorce from bed aud board, forever. The judgment gave plaintiff the custody of their two minor children, and contained provisions as to alimony and property as follows: “Third.

Fish, Circuit Judge. On April 10, 1901, Henry Wiesmann filed in the county court of Kenosha county, Wisconsin, a verified petition praying for the issuance of letters of administration de bonis non, ■with the will annexed, of the estate of one Cornelius Mc-Kune, deceased.

Eisi-i, Circuit Judge. On July 2, 1900, tbe common council of the city of Keno-sha, over the mayor’s veto, passed an ordinance granting to Patrick E. Haynes and Gustav L. Clausen, residents and citizens of Chicago, Illinois, their associates, personal representatives, and assigns, the right to construct and operate a passenger street railway over certain specified streets in the city of Kenosha, including South street, opposite the plaintiff’s premises; also providing that…

<p> Justices’ courts: Jurisdiction: Replevin: “Filing” of affldmit. </p> <p>An. affidavit for a warrant of replevin was sworn to before a justice and was present when he issued the warrant, but was taken away by the officer serving the warrant, and returned with the warrant two or three days later, and was then indorsed by the justice as having been filed on the day it was made. The docket entries of the justice referred to the affidavit as a pleading so filed pursuant to statute. Held, that the affidavit was filed with the justice when it was first made, and he did not lose jurisdiction by his failure to retain it in his office and to indorse it at that time.</p>

<p>Appeal from a judgment of tbe circuit court for Racine county: FeaNK M. Fish, Circuit Judge.</p> <p>This was an action for the partition of certain real estate in the city of Racine. The plaintiff’s rights to an undivided one-quarter of the premises in question were undisputed, except by the appellant, Gertrude Niessen. The material facts in the case were undisputed, and were as follows:</p> <p>One Virginia Lugg was the owner of the real estate in question, and died at Racine, Wisconsin, intestate, February 13, 1899, leaving as her heirs at law four children, viz., Lydia 0. Thompson, Alexia V. Ritz, Martha Lugg, and Herbert J. Barry, each of whom became the owner of an undivided one-fourth interest in the property. The said Barry prior to August, 1899, had married the plaintiff, Ella Barry, and said Ella Barry in August, 1899, commenced a divorce action against said Herbert Barry; and during the pendency of said action the said Herbert deeded to the said Ella, in lieu of alimony, his interest in the said real estate, and by the final judgment in said divorce action, in September, 1899, the said transfer of said real estate in lieu of alimony was ratified and confirmed. Some years prior to the marriage of said Herbert Barry and the plaintiff, and in November, 1891, the appellant, Gertrude Niessen, had commenced a bastardy proceeding against the said Herbert Barry in the circuit court of Racine county; and on April 13, 1892, after trial and a verdict of guilty, the said Herbert Barry was adjudged to be the father of the child of the said Gertrude Niessen, and it was further adjudged that he pay the sum of $11.25 costs, and that he pay to the said Gertrude Niessen the sum of $100 per year from the date of said judgment until said child should become thirteen years of age, and that he furnish a bond in the sum of $500 for the compliance on his part with the said judgment. No bond was furnished, and the said Herbert Barry was confined in the county jail for ninety days, at the expiration of which time he was released. No part of the judgment has ever been paid. At the time of the rendition of tbe judgment, tbe clerk of tbe circuit court made tbe following entry upon tbe judgment docket:</p> <p>*'‘State of Wisconsin, E. O. Hand, Plff. Dist. Atty.</p> <p>YS. “Herbert J. Barry, Def. April 13, 1892,</p> <p>Amount —</p> <p>Costs — $111.25. At 3 o’clock p. m. Amount to become due.”</p> <p>No attempt was made by Gertrude Niessen to collect tbe judgment by tbe issuance of execution.</p> <p>On September 26, 1899, tbe plaintiff commenced tbis action of partition in tbe circuit court of Racine county, making tbe other bears of Virginia Lugg defendants. On January 3, 1900, Gertrude Niessen appeared and intervened in tbe action, and claimed that sbe bad a lien against that portion of said real estate owned by Ella, Barry, because of tbe bastardy judgment aforesaid, and prayed that her lien be enforced by the court. A stipulation was entered into by tbe parties May 3, 1900, by wbicb tbe partition suit was dismissed as against all tbe parties excepting Gertrude Niessen, tbe defendants paying into court $825, wbicb was agreed to be the full share of Ella Barry in tbe real estate in question, and wbicb sum was to be held in court subject to tbe determination of the contest between Ella Barry and Gertrude Niessen. It was admitted that the child of Gertrude Niessen had been supported by her since tbe date of tbe bastardy judgment, April 13, 1892, and it was found that there was due upon tbe judgment the sum of $1,016. Upon these facts the circuit court held that tbe bastardy judgment did not become a lien upon tbe real estate of Herbert Barry, and that tbe plaintiff, Ella Barry, was entitled to tbe sum of $825 so paid into court. From a judgment in accordance with tbis finding, Gertrude Niessen appeals.</p>

0. Ludwig, Judge. Action to recover on a bond alleged to have been given to plaintiffs by defendant Lucas -as principal, with, defendant William Moore as sole surety, to secure the faithful performance by Lucas of an agency contract.

<p> Sales: Rescission: Fraudulent intent: Evidence. </p> <p>In the absence of clear proof of known insolvency or of false representations made to induce a sale of goods, evidence of an intent to defraud creditors, formed some months after the sale, is not sufficient to justify an inference of a predetermined intent not to pay for the goods, such as would give the vendor the right to rescind the sale.</p>

<p> False imprisonment: Nominal damages. </p> <p>Upon testimony tending to show that although technically the defendant, a policeman, had unlawfully deprived plaintiff of her liberty, yet that he had arrested her because he believed her insane and in need of care for her own safety; that she suffered no indignity other than transportation in the patrol wagon to the station house; and that before the arrest she was momentarily exposing herself on the streets to a far higher degree of notoriety and disgrace, — it is held that there was no abuse of discretion in refusing to set aside as inadequate a verdict for nominal damages.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: EugeNE S. Elliott, Circuit Judge.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: Eugene S. Elliott, Circuit Judge.</p> <p>This is an action to'recover tbe value of water alleged to have been wrongfully and clandestinely taken from tbe water mains of tbe city by tbe defendant. Tbe complaint alleged, in substance, tbe corporate character of tbe city as a municipal corporation, and tbat it was by its charter empowered to erect and maintain waterworks for supplying pure water to tbe inhabitants of said city; tbat in pursuance of said power tbe city bad erected and maintained waterworks, and had for many years furnished water to tbe inhabitants of said city, for domestic or manufacturing purposes, through pipes or mains laid in tbe streets thereof; tbat the defendant, a domestic manufacturing corporation, for years bad maintained and operated a tanning business upon certain lots adjoining certain streets of said city, upon which streets water mains existed; that in September, 1884, the plaintiff city adopted certain rules and regulations governing the supply and use of said water, and also fixed certain rates for such use, which rules, regulations, and rates are attached to the complaint as exhibits; that the defendant commenced about the 1st day of January, 1893, to wrongfully take and use water from the said water mains, and continued to take and use the same up to the 7th day of January, 1901, by means-of connections wrongfully made by the defendant with the said water mains without the knowledge of the said city; that the amount so clandestinely taken and used by the said defendant between January 1, 1893, and February 13, 1899, was 6,143,700 cubic feet, and the amount so taken and used between February 13, 1899, and January 7, 1901, was 1,906,150 cubic feet, and that by reason of the taking of said water the defendant became indebted to the said city in the gross sum of $3,601.95, for which sum and interest judgment was demanded. The defendant demurred to the complaint upon the general ground of insufficiency of the facts, and upon the further ground that it appeared that the plaintiff had no authority to sue, in that the common council of said city had not authorized the commencement of the action. The demurrer was overruled, and the defendant appeals.</p>

<p> 'Negligence: Dangerous premises: Injury to person there on business: Evidence: Photographs. </p> <p>1. Plaintiff’s intestate was upen the premises of defendant, a distilling company, to purchase slops, which were to he drawn from a large circular vat into his wagon. He was standing upon the platform of the vat for the purpose of stirring the slops therein, when the vat hurst and he was scalded to death by its contents. Defendant had an employee whose duty it was to stir the slops, hut it was a custom, known to and acquiesced in hy defendant, for customers to stir them for themselves if they wished, and the deceased had repeatedly been allowed to do so. Held,, that deceased, being where he was hy defendant’s permission and upon business for their mutual benefit, was not a mere licensee, and defendant was liable for-his death if the dangerous condition of the vat was known to it or discoverable by the exercise of ordinary care.</p> <p>2. Photographs of hoops claimed to have been upon the bursted vat are held to have been improperly admitted, because the evidence (discussed in the opinions) did not sufficiently identify the objects photographed as the hoops in question.</p> <p>3. Such photographs, if they had been shown to represent correctly the hoops of the vat, would have tended to show that some of such hoops were, at the time of the accident, rusted to such an extent as to destroy or partially destroy their efficiency, and that such condition could readily have been discovered by the exercise of ordinary care; and would have supported a finding of the jury that defendant ought to have known of such defective condition of the hoops prior to the accident. [Bardeen and Marshall, JJ„ are of the opinion that, even if admissible, such photographs were not sufficient, as against the overwhelming evidence to the contrary, to sustain such a finding. Marshall, J., is further of the opinion that, even if the objects pictured had been properly identified, the photographs were not admissible as the sole evidence of the condition of the hoops, such fact being susceptible of better proof by the testimony of witnesses.]</p>

Elliott, Circuit Judge. After a decision in this case by this court, reported in 104 Wis. 500,79 N. W. 766, 81 N. W. 367, and the remittiiwr to the circuit court for Milwaukee county, that court, on July 25, 1900, entered a judgment or decree substantially in accordance therewith, authorizing the sale of the entire title to four certain lots and the application of the proceeds in the manner directed by this court.

<p>Appeal from an order of tbe circuit court for Milwaukee county: EugeNe S. Elliott, Circuit Judge.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: EugeNe S. Elliott, and LawbeNCe W. TIalset, Circuit Judges.</p>

<p> Promissory notes: Renewal: Payment: Banks and tanking. </p> <p>One who was indebted to a bank both upon a note and upon an overdraft gave, as collateral security for such debt or to secure future advances, another note due in five years, secured by mortgage for an amount less than the overdraft. This note was not at the time carried to his credit in the account. After-wards he gave another note, which was carried to his credit, reducing the overdraft. As these notes, other than the mortgage note, became due, they were renewed from time to time, the debtor giving new notes, which would be placed to his credit in the account, and giving checks for the amounts of the old notes, which the bank would thereupon stamp “Paid” and surrender to him. He also made deposits and drew checks, and balances were struck in his book from time to time. His account continued to be overdrawn, and as the overdraft increased he gave other notes, which were renewed and carried into the account in the same way. None of the renewal notes was ever accepted as payment of the original debt. Held, that the collateral note and mortgage had not been paid.</p>

<p>EkeoR to review a judgment of tbe circuit court for Dodge •county: Jambs J. Dice, Circuit Judge.</p> <p>Plaintiff in error was charged with assault with intent to kill his wife, Mary Goodwin, on May 29, 1900. The evidence for the prosecution was to the effect that some time between 10 and 11 o’clock of that evening, after the customers at his isaloon had all gone and the family had all retired to bed, defendant induced his wife to arise and go with him, ostensibly "to hold a lantern while he treated a sick horse; that he thereupon took her some fifteen rods to a seldom-used shed or •stable, and cast her into a well, from which she was rescued by reason of her cries being heard by people passing in the ¡street. The defense rested-upon evidence tending to show the whereabouts of the defendant at all periods between 10 and 11 o’clock, and up to the time when the alarm was brought to 'him, and he confessedly went with others to the rescue of his wife; the theory of the defense being that the wife, being, if not insane, in a highly disturbed and hysteric mental condition, had either wandered to the region of this well and fallen in, or had attempted suicide. When the wife was raised from the well, and while being supported by her brother on one ■.side and her husband on the other, her brother inquired how she got there, and sbe replied that her husband had put her in. Thereupon the brother said to defendant that it looked pretty serious, implying a charge of guilt against him, and he replied, with an oath, either, “She can’t prove it,” or, “I will give you a chance to prove it.”</p> <p>A plea in abatement was interposed, based upon the contention that there had been no legal preliminary examination, because the complaint before the justice of the peace was sworn to by Mary Goodwin while still the wife of the accused. Much evidence was offered of the wife’s disturbed mental or nervous condition and of strained and unpleasant relations between them. The plea in abatement was overruled and exception taken, and upon the trial a verdict of “Guilty” was found, and, after motions to set aside the same and for a new trial, judgment and sentence were pronounced, to which plaintiff in error sued out the present writ.</p>

Appeax from a judgment of tbe circuit court for Outa-gamie county: Jonw Goodxawd, Circuit Judge. Plaintiff operates an electric light plant at tbe city of Kaukaunaoccupying tbe streets witb its poles, under a franchise in the form of an ordinance of the city adopted September 5, 1889, which gives it a right to use the streets for the purpose of furnishing both arc and incandescent lights.

<p> Equity: Specific performance of contracts: Uncertainty: Discretion: Agreement to build branch railroad: Damages. </p> <p>1. Courts of equity exercise their discretion in the matter of granting or refusing their aid to enforce specific performance of contracts; and may refuse such aid where a contract lacks certainty as to essential terms, even though the uncertainty exists by reason of defendant’s fault, or when any of such terms depend on the will, discretion, or personal acts of individuals, so that a decree, if granted, might fail of complete efficacy.</p> <p>2. A railway company agreed with certain residents of a village to build and operate a railway from its main line (some ten or fifteen miles distant) northerly through said village to the north line of the county, such railway to be build and located on such line and location as the company should thereafter determine. The starting point, under such agreement, might be at any point within a space of about twenty-five miles. The company afterwards refused to locate or build the railway. Held, that a decree of specific performance might properly he refused.</p> <p>3. Where a court of equity refuses to enforce specific performance of a contract it should not retain jurisdiction for the purpose of awarding damages for the breach thereof, if no reason is shown why such damages should not he recovered at law.</p>

<p>Appeal from a judgment of the circuit court for Green 'County: B. E. DuNWIddie, Circuit Judge.</p> <p>Action to recover on a promissory note, dated August 31, 1895, signed by the defendants with one Wyss as their accommodation maker, whereby they agreed to pay the Citizens’ Bank of Monroe, Wisconsin, or order, $2,000 on demand after date. Defendant Marty answered that plaintiff purchased' the note of the hank and that it was fully paid before the commencement of the action; that after plaintiff became the owner thereof he and Wyss induced defendants to give security therefor to Wyss; that Wyss paid the note to plaintiff, and defendants secured the former as requested, and that he realized upon the security sufficient to fully cancel tire indebtedness. The answer further alleged payment by defendant Speicii. Defendant Speich answered separately, pleading the same matters, substantially, as his codefendant.</p> <p>The cause was tried by the court. The evidence conclusively established the following facts: When the note was given, for a considerable time theretofore and thereafter, defendants were manufacturers of cheese and plaintiff was their financial agent. He took their cheese products and sold them on commission, crediting defendants with the proceeds upon his books and paying them money from time to time on account. He also furnished them considerable quantities of supplies from time to time, and indorsed notes for them which he subsequently took up, charging money paid in the latter transactions and for supplies to defendants’ account. [February 20, 1896, defendants requested plaintiff to pay for them the note in suit, which he did. The paper was delivered to him by the bank, unindorsed, and was retained by him. On April 22, 1896, he rendered defendants a bill of their account showing debit items, including the amount paid on the note, aggregating $22,385.20, and credits to the amount of $20,247.33. Defendants kept such bill, and the circumstances were such that it became an account stated between the parties. June 1, 1896, plaintiff again rendered defendants a second bill of their account, in which the note was credited back to them, indicating that it was held as an outstanding obligation. Such statement of account indicated that defendants owed plaintiff $2,-951.95. The last bill was retained by defendants without objection, and the circumstances were such that it became an account stated between the parties. Thereafter plaintiff demanded pay on the note from Wyss, and he in. turn demanded of defendants that they should protect him. Thereafter defendants, with the knowledge and adrice of plaintiff, gave security to Wyss, and he paid the plaintiff. The security turned out to be of little value. The only sum realized applicable to or applied on the note was $300. Subsequently Wyss obtained what he supposed was credible information that plaintiff did not purchase the note of the Citizens’ Bank, but that he paid it for defendants. Thereupon he sued all the parties to this action for jointly imposing upon him to his damage, to the extent of the money paid on the note and interest. The defendants in this action set up as a defense substantially the same facts as those contained in their answers now. The case was tried, ■the issues being whether Qrwneri paid the note for Speich and Marty at the bank or purchased it, and whether Speich and Marty, after the note came to the possession of Wyss, paid .him. The circuit court decided both such issues in faVor of Wyss, except that he had received from Speich and Marty $300. The court further decided that all the parties were guilty participants in fraudulently inducing Wyss to pay the note to Grunert. Judgment was rendered accordingly. Grunert and Speich and Marty joined in an appeal to this court. The judgment was affirmed on the following facts: Eirst, that Grunert paid the note at the Citizens’ Bank for the account of Speich and Marty; second, that he fraudulently induced Wyss to pay him, pretending that the note was still an outstanding obligation upon which he, Wyss, was liable; third, that Speich and Marty recognized Wyss as the owner of the note after he came to the possession thereof, and paid him $300 thereon but no more. The decision of the lower court as to Speich and Marty being guilty participants in the fraud was reversed on the ground that there was-no finding of fact or allegation in the complaint connecting them therewith, and that the evidence did not clearly show guilt on their part; on the contrary, that it tended to show that théy believed, from the fact that the note was credited back to them in the second bill rendered and from the state of their account as shown by such bill, that the note was an outstanding obligation, and indicated by their conduct that they preferred to deal with Wyss with reference to it rather than with Orunert. [108 Wis. 38.]</p> <p>Appellant paid the Wyss judgment, repossessed himself of the note, and thereupon brought this suit. Proof of all the facts in regard to the prior case was made by the introduction of the record in evidence, and by evidence independently thereof. None of such facts1 are covered by the findings filed by the trial court, except those in regard to the making of the note to the Citizens’ Bank, there being a running account between plaintiff and defendants, and that the latter requested the former to take up the note for them. The bills rendered and the book account were offered in evidence, and there was testimony that Orunert was requested to pay the note for defendants, but there was no direct evidence that he was told by them to charge the note to them. The trial court found that Oi'uneri was requested by Bpeich and Marty to pay the note and to charge it to their account; that in April, 1896, they had credit on such account sufficient to discharge all their liabilities to Orunert, including the note; that no applition of any credit items in payment of any debit items was made prior to the commencement of this suit; that Wyss paid the note in full to Orunert without any knowledge that the same had been previously paid by the defendants.</p> <p>As a conclusion of law the court found that the credits to defendants upon Orunert’s books should be applied, so far as necessary, in discharge of any claim of plaintiff upon the note. Judgment was rendered accordingly.</p> <p>After tbe ease was submitted for decision the plaintiff offered to pay the costs of the suit and gave notice of a discontinuance. Defendants’ counsel refused to receive the costs or to consent to a discontinuance. Thereupon plaintiff’s counsel obtained an order to show cause why he should not be permitted to discontinue. Before the return day of the order, findings were filed and judgment was rendered, and upon such return day the motion for leave to discontinue was denied.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: Lawbence W. Halsey, Circuit Judge.</p> <p>It appears from the record that April 4, 1899, the Wisconsin Trust Company, as administrator of the estate of Julius Luebke, deceased, recovered judgment in the circuit court for Milwaukee county against this plaintiff for $40,6 57.61, which judgment was affirmed on appeal to this court. 105 Wis. 464, 469, 81 N. W. 642. Thereupon the Wisconsin Trust Company resigned as such administrator, and the defendant Emm a J. Luebke, the widow of the deceased, was appointed administratrix in its stead, and she thereupon issued execution to collect the amount of the judgment. April 4, 1900, the plaintiff herein commenced this action against George Burner as sheriff and Emma J. Luebke as administratrix of such estate, to restrain them from enforcing such execution. To obtain such injunction, an undertaking was given on the part of the plaintiff, reciting the facts mentioned, and signed by Thomas J. Dumin and Alfred James, wherein they thereby undertook that the plaintiff, the Wisconsin Marine & Fire Insurance Company Bank, would pay to the parties enjoined “such damage, not exceeding the sum of $500, as they or either of them may sustain by reason of such injunction, if the court shall finally decide that the plaintiff is not entitled therein, and such damages may be ascertained by reference or otherwise, as the court shall direct.” Thereupon, and on April 4, 1900, upon the verified complaint in this action and such undertaMng, an order was obtained from a court commissioner restraining the defendant George Burner, as sheriff, and Éis deputies and employees, and the defendant Emma J. Lueblce, and each of them, until the further order or judgment of the court, from proceeding in any way or manner to enforce such execution out of the property of the plaintiff.</p> <p>Thereupon George Burner and Emma J. Lueblce, respectively, answered the complaint herein upon the merits, and obtained an order to show cause why such injunctional order should not be vacated and dissolved. That motion was heard “upon the records, pleadings, and papers theretofore served and on file,” and an affidavit on file in behalf of the plaintiff, and it was ordered by the circuit court, May 19, 1900, that such injunctional order be, and the same was thereby, set aside and dissolved, with $10 costs against the plaintiff, and in favor of the defendants.</p> <p>The cause having been brought to trial upon the merits, January 16, 1901, and the circuit court having granted the motion of the plaintiff to dismiss the complaint herein, thereupon directed judgment to be entered in favor of the defendants dismissing the plaintiff’s complaint, with costs; and it was thereupon adjudged that the complaint in this action be dismissed, and that the defendants recover of the plaintiff $32.70 taxed as costs,and disbursements, and have execution therefor; and such judgment was duly docketed in the clerk’s office February 14, 1901.</p> <p>February 18, 1901, the circuit court, on its own motion, ordered that a compulsory reference be, and the same was thereby, made to John F. Harper, circuit court commissioner, “to ascertain and determine the damages sustained by tbe said defendants, or either of them, by reason of the said injunctional order herein, and report the same” to the circuit court. June 25, 1901, Harper, as referee, made and filed his report, to the effect that an allowance should be made to the defendants for the services of attorneys employed by them in procuring’ the dissolution of such injunc-tional order, and that the reasonable value of such services, for which the defendants were liable, amounted to $300, and that the reasonable value of the services of counsel for the defendants upon such reference should be allowed as part •of the damages recoverable upon such undertaking, and that the same amounted to $25, and that he therefore found and reported to the court that such damages be and thereby were allowed by reason of the dissolution of the injunction upon the undertaking given in procuring the same, and should be and are $325. Upon the hearing of an order to show cause to the contrary, made June 27, 1901, the circuit court, on July 6, 1901, after hearing the attorneys for the respective parties, “ordered that said report of the referee, fixing the -damages sustained by the plaintiff under the undertaking, by reason of the injunction issued herein, at the sum of three .hundred and twenty-five dollars, be, and the same hereby is, in all respects ratified and confirmed.” Erom that order the plaintiff appeals.</p> <p>They cited, besides cases cited in the opinion, Wisecarver v. Wisecarver, 97 Va. 452, 34 S. E. 56; Btringfield v. Hirsch, 94 Tenn. 425, 29 S. W. 609; -OUphint v. Mansfield, 36 Ark. 191, 195; Bensenig v. Pai'ry, 113 Pa. St. 115, 5 Atl. 11; Wood v. Btate, 66 Md. 61, 5 Atl. 476; Galveston, E. & S. A. B. Go. v. Ware, 74 Tex. 47, 11 .'S. W. 918; Jones v. Bosedale St. B. Go. 75 Tex. 382, 12 >S. W. 998; Canadian & A. M. & T. Go. v. Fitzpatrick, 71 -Miss. 347, 16 So. 877; New Nat. Turnpike Co. v. Dulaney, 86 Ky. 516, 6 S. W. 590; Bennett v. Lambert, 100 Ky. 737, 39 S. W. 419; Williams v. Allen (Ky.) 54 S. W. 720; Barrett v. Bowers, 87 Me. 185, 32 Atl. 871; Noble v. Arnold, 23 Ohio St. 264; Biddle v. Gheadle, 25 Ohio St. 278; Games: v. Heimrod, 45 Neb. 364, 63 N. W. 809.</p>

Elliott, Circuit Judge. Tbis is an. action for money bad and received. It was commenced by the filing of a claim by the plaintiff with the county board of the defendant, claiming to recover the sum of $525. The claim was disallowed by the county board, and the plaintiff appealed to the circuit court. Trial by jury was waived, and the action was tried by the court.

Elliott, Circuit Judge. This is an action to recover the value of services. The action was commenced December 12, 1899, and the complaint alleges that from December 13, 1893, to October, 1898, the plaintiff worked for the defendant doing washing, laundry work, and cleaning, for a time amounting to 993 days, and that such services were reasonably worth the sum of $1 per day.

<p> Attorney and client: Employment by assignee: Privileged, communications: Waiver: Depositions: Appeal: Immaterial errors: Accord and satisfaction: Consideration. </p> <p>1. An attorney employed by a person acting in a representative capacity, such as an assignee for the benefit of creditors, stands for the assignee or other trustee and not for the beneficiaries, and sustains substantially the same relation to his client as he would if the representative character were absent. The successor of the assignee or other trustee, therefore, cannot waive the privilege of his predecessor in regard to communications made by the latter to the attorney while he was in office.</p> <p>2. Where an attorney serves a client in his professional capacity in the making and the reduction to writing of an agreement between the client and a third, person, the client does not, by procuring the attorney to sign as a subscribing witness, waive his privilege of secrecy in respect to confidential communications made during the preparation of the instrument.</p> <p>■3. Where an attorney’s services in a transaction are rendered to several persons, confidential communications to Mm in regard thereto cannot properly be disclosed unless all join in consenting to such disclosure.</p> <p>4. The privileged communication between attorney and client recognized by sec. 4076, Stats. 1898, extends only to those communications made by the latter to the former which are of a confidential character and are made for the purpose of enabling the attorney to serve the client, and to the legal advice given in respect to such communication, and does not extend to communications between the attorney and a third person in the transaction of the client’s business.</p> <p>'6. A witness cannot be compelled to disclose communications made to his attorney which would be privileged were the attorney under examination as a witness, but such privilege does not extend so far as to warrant the court in excluding a question on cross-examination as to whether, in the preparation of a cause for trial, the party was interrogated as to his Knowledge respecting the matters in controversy and the questions and answers thereto reduced to writing for the purpose of enabling the attorney to know what his client might be expected to testify to.</p> <p><6. Under see. 4090, Stats. 1898, depositions may be read in evidence only upon condition that they have been filed with the clerk of the court and the other party notified thereof before the commencement of the trial.</p> <p>1. Errors in the reception or rejection of evidence in an equity case are not deemed prejudicial in the absence of reasonable ground to believe that if the improper evidence had not been considered, and the proper evidence rejected had been admitted and given due weight, the result might probably have been different.</p> <p>■fi. Either the conveyance by . a debtor of an absolute title to property held collaterally, or a waiver of his right to the benefit of the federal bankrupt laws, is a sufficient consideration to support a settlement of the indebtedness upon payment of a part only of the amount due.</p>

Halset, Circuit Judge. At the time of the regular spring election in April, 1897, George E. Sutherland was elected judge of the superior court of Milwaukee county for a full term of six years from the first Monday in May, 1897, under sec. 4, ch. 67, Laws of 1891, creating an additional superior judge of said court. He died in September, 1899.

O. Ludwig, Judge. This action was commenced April 25, 1899, to recover $3,879.72, money had and received.

<p>Appeal from a judgment of the superior court of Milwaukee county; J. 0. Ludwig, Judge.</p> <p>This was an action commenced in justice’s court for the 'balance due for goods sold and delivered, amounting to $139. No defense was made in justice’s court, and a judgment for the plaintiff was rendered, whereupon the defendant appealed from the judgment so rendered to the superior court ■of Milwaukee county, and in that court it interposed an answer admitting the plaintiff’s claim, and setting up a counterclaim, and the case was tried upon the counterclaim.</p> <p>The counterclaim alleged, in substance, that the defendant, a domestic corporation, was engaged in the manufacture of shelf paper in large quantities in the city of Milwaukee, and "that the plaintiff, also a domestic corporation, was a wholesale paper dealer in said city; that in the winter of 1899 and 1900 the defendant, at the solicitation of the plaintiff, purchased from the plaintiff a car load of print paper, which was to be equal in quality, strength, and finish to the kind then in use by the defendant, at the agreed price of $2.65 per 100 pounds; that said car load was to consist of about two tons of paper, in sheets, put up in bundles 22x36 inches in size, and of about fifteen tons of white print paper, put up in rolls, sixteen inches in width, of the quality, strength, and finish aforesaid; that the paper in rolls was to be used exclusively for the manufacture of lace shelf paper, as the plaintiff well knew at the time of making the contract; that said paper was not to be delivered to the defendant, nor paid for, until April, 1900, and that the plaintiff warranted that the same would be fully equal, in quality, color, strength, and finish, to that then in use by the defendant; that thereafter, and some weeks before the time that said paper was to be delivered, the plaintiff notified the defendant that the car load of paper was ready for delivery, but the defendant could not then receive the same, because its warehouse was then full, and the plaintiff agreed to store said paper in its own warehouse without expense to the defendant, whereupon the defendant, without opportunity to examine said paper, and relying upon said warranty, paid for said car load of paper as agreed; that thereafter the defendant caused said paper to be delivered at its factory, and, upon attempting to use the same, found that it was deficient in quality, finish, and strength, so that it had not strength enough to be used for the manufacture of lace shelf paper, and was too light in weight, and had many breaks in the rolls, and that the output of defendant was thereby reduced more than one half, and large waste occasioned, while the defendant Was trying to use said paper, and defendant was finally unable to use the same for the purpose intended; that said paper had then and now has no marketable value for any other purpose than that intended, and was not and is not now worth to exceed $1.10 per 100 pounds; and that, by reason of the failure of tbe plaintiff to furnish paper of the quality and strength agreed upon, the defendant was greatly delayed in getting out its orders, and was unable to use the paper for the purpose intended, and has suffered damages in the amount of $450. • .</p> <p>A reply was filed to the counterclaim, admitting the sale of the car load of paper, but denying all other allegations of the counterclaim.</p> <p>The cause was tried before a jury. It appeared by the evidence that the defendant during the winter of 1899 and 1900 was engaged in the manufacture of shelf papers; that for such purpose it required rolls of white print paper, sixteen inches in width, and that such paper must have sufficient strength to run through certdin rolls and machinery, specially designed for the purpose, without breaking, and that, if the paper was not sufficiently strong, frequent breaks would result, causing loss of time and waste of paper; that the plaintiff’s agent who sold the paper to the defendant was aware of the special purpose for which the paper was bought, and he agreed that the same would be equal in quality and strength to that which he had theretofore sold the defendant as agent for Niedecken & Co., another paper house; that the paper was to be delivered March 15th, but that the plaintiff agreed to store the paper for the defendant until it wished it, free of charge; that the paper was paid for in two notes; and that the notes were paid during the month of May. The defendant’s evidence tended.to show that twenty-five rolls of paper were delivered April 7, 1900, and fifteen rolls May 5, 1900, and that the remaining 221 rolls were not delivered until June 18 and 19, 1900; that the forty rolls which were delivered in April and May were used without discovery of any difficulty therein, but that when the remainder of the paper began to be used, in June, the quality thereof proved to be poorer than that in use by the defendant when the eon-tract was made, and tbat it did not have sufficient strength to run through the machinery, but that constant breaks occurred therein, causing loss of time and waste of paper; that paper in sixteen-inch rolls was little used, and was not sold in the market, but had to be specially ordered; and that the market value of the paper in question did not exceed its value for paper stock, to wit, forty-five to sixty cents per 100 pounds.</p> <p>The plaintiff by its evidence did not controvert the making of the warranty claimed by the defendant, but claimed that the paper was sold by sample, and that it was fully worth the price paid for it, and that there was a market for the same at the time of the sale and at the time of the delivery.</p> <p>A special verdict was returned by the jury as follows:</p> <p>“(1) Was the paper delivered by the plaintiff to the defendant of the quality and strength contracted for by the defendant? No. (2) Did plaintiff’s agent, Meir, know for what purpose the defendant intended to use said paper? Yes. (3) If you answer the second question £Yes,’ was said paper suitable for said purpose? No. (4) Did the defendant, within a reasonable time after it commenced using the paper, notify the agent, Meir, that the paper was not accepted as fulfilling the contract? Yes. (5) What was the market value of said paper in the Milwaukee market at or about the time it was delivered? Two dollars and thirty cents per hundred pounds.”</p> <p>Upon this verdict the defendant moved for judgment in its favor for $24.33 and costs, and, in case such motion should be denied, for a new trial upon various grounds, including the grounds that the court had erred in rejecting evidence, and that the verdict was contrary to law and to the evidence and conjectural. Both motions were overruled, and judgment entered for the plaintiff for $96.40, and the defendant appeals.</p>

<p> Pleading: Joinder of causes of action: Foreclosure of mortgages: Priority of liens: Paramount title: Merger. </p> <p>1. The test of whether more than one cause of action is stated or attempted to he stated in a complaint is not whether there are different hinds of relief or objects sought, but whether there is more than one primary right sought to be enforced or one subject of controversy presented for adjudication.</p> <p>2. The complaint in an action to foreclose a mortgage, in addition to the usual averments, alleged that a prior mortgage had been given to one K. for the benefit of defendant F., who furnished the whole consideration, and that F. was the owner of said prior mortgage when, subsequently, the legal title to the land was conveyed to him in satisfaction of the mortgage debt. In addition to the usual relief, judgment was ashed that the K. mortgage be declared extinguished and that plaintiff’s mortgage be declared to be the first mortgage lien on the property. Held, that the allegations mentioned did not attempt to state a separate cause of action against F„ involving either a question of paramount title or a question of merger by implication, * but merely called for a determination, essential to complete relief, of a question of priority of liens, depending on whether or not the prior mortgage had in fact been paid as alleged.</p>

<p>Appeal from an order of tbe circuit court for Green Lake county: Gbobgke W. BubNell, Circuit Judge.</p> <p>Action for partition. All parties ■ claim title from a common ancestor, Patrick O’Hearn. In 1810 tbe latter made a will bequeathing all bis personal property to bis wife, Elle-nor, during ber life, and at ber death one half was to go to her son, tbe defendant Patrick O’Uearn. He also devised all bis real estate to bis wife for life, describing it, and upon ]ier death one half of the same was devised to defendant Patrick. No mention was made of other children, and no disposition of the other half of his personal or real property was made by the will. After his death, and on June 23,, 1870, his will was duly admitted to probate. He left surviving him his wife, Ellenor, and three children, the defendant Patrick, a daughter, the defendant Bridget Doherty, and a son John, as his heirs-at-law. The widow died in 1899. John died in 1879, leaving his son, the plaintiff Dermis O’Heam, and a daughter, the plaintiff Mary B. Briery, as his heirs-at-law. The plaintiff Elizabeth is the wife of Dermis. The plaintiffs bring this action for partition qf the-real estate left by Patrick, Sr., alleging that the plaintiffs Dermis and Mary are entitled to one fourth of the estate as the heirs of John, their interests therein being each one eighth, the defendant Bridget Doherty was entitled to one-fourth, and the defendant Patrick one half.</p> <p>The defendant Patrick, having been adjudged mentally incompetent, appeared by his guardian, and set up as matter-in abatement that the jtitle to the land sought to be divided was in dispute, and that the rights and interests of the several parties had never been determined at law, and could not be determined in this action. He also set up the facts in relation to the will of his father, and claimed that as to one half of the estate his father died intestate; that he was entitled to one half of the land under the will, and to share equally with the other children in the other half as heir of his father.. The interests in the estate were alleged to be as follows: Dennis O'Heam, one twelfth; Mary B. Emery, one twelfth; Bridget Doherty, one sixth; Patrick O^üéani, two thirds.</p> <p>The trial court overruled the answer in abatement, and found that it was the intention of the testator, as expressed in the will, to give the defendant Patrick one half only of the real estate described in the will, and to- -give- the other half to his other children; that, in order to effectuate the testator’s intention, there should he added to the will the words, “and the balance to my other two children.” The rights of the parties were decided on that basis, a partition was ordered, and the usual order of reference made. Due exceptions were filed, and the defendant Patrick appeals.</p> <p>to the point that the plea in abatement should have been sustained, cited Decry v. McClintock, 31 Wis. 195; Hardy v. Mills, 35 Wis. 141; Tobin v. Tobin, 45 Wis. 298; Morse v. Stockman, 65 Wis. 36, 43; Ellis v. Allen, 99 Wis. 598; Morgan v. Mueller, 107 Wis. 241.</p> <p>As to the construction of the will, they cited New England T. Co. v. Pitkin, 163 Mass. 506, 40 1ST. E. 1044; Carney v. Kain, 40 W. Va. 758, 23 S. E. 650; Zimmerman v. Hafer, 81 Md. 347; Turner’s Appeal, 52 Mich. 398, 18 N. W. 123; Marion v. Williams, 20 D. C. 20 \ J ames v. Pru-den, 14 Ohio St. 253; Gourley v. Thompson, ‘b Sneed (Tenn.) 387; 29 Am. & Eng. Ency. of Law, 354, and cases cited in notes; Deadrick v. Armour, 10 Humph. 588; Schou-ler, Wills, §§ 476, 477, 490, 561; Baker v. Estate of McLeod, 79 Wis. 534; In re Donges’s Estate, 103 Wis. 497, 500-502; 5 Field’s Lawyer’s Briefs, 622.</p>

Burnell, Circuit Judge. contended, inter alia, that tbe case comes directly within tbe express terms of sec. 1210h, Stats. 1898. There is no distinction in this state between objections going to tbe groundwork and objections going to tbe jurisdiction.

<p> Appealable orders: Discretion: Substitution of administrator as appellant: State and federal courts: Bankruptcy: Receivers: Compensation. </p> <p>1. After the appointment of a receiver in an action by tbe attorney general to wind up the business of a banking partnership, the partners -were adjudged bankrupts in the federal court. On motion of the trustee in bankruptcy the state court ordered that all the property be turned over by the receiver to such trustee. Held, that the order was a final order affecting a substantial right made in a special proceeding, and, unless a proper exercise of discretion, was appealable under subd. 2, sec. 3069, Stats. 1898.</p> <p>2. The receiver having died after appealing from the order, it was proper to allow his personal representative to be substituted as appellant.</p> <p>3. The superior jurisdiction of the federal court over the property was conceded by all parties, and the order was so framed that any legal claim of the receiver to compensation for his services . and expenses followed the property into the hands of the trustee as a lien thereon. Held, that it was not an abuse of discretion so to protect the receiver’s rights, instead of adjusting his account and ordering payment out of the funds in his hands before relinquishment thereof to the trustee in bankruptcy.</p> <p>[4. Whether the bankruptcy proceeding entirely superseded the jurisdiction of the state court, leaving the latter no authority in the matter other than to order the property turned over to the trustee, not determined.]</p> <p>6. An appeal from a mere discretionary order will be dismissed if there was no abuse of discretion.</p>

<p> Setting aside judicial sale: Laches: Foreclosure of lien. </p> <p>In an action to set aside a sheriffs deed it appeared that plaintiff had contracted for the purchase of the land and had made payments; that a lien for building materials furnished to him was foreclosed, after a contest, and the judgment directed a sale of his interest in the land; that his attorney, not being informed that plaintiff had any interest in the property, in good faith advised him that the lien was invalid, but the lienor did not know of such advice; that nearly two years later plaintiff had a conversation with the lienor relative to a settlement, but no agreement to delay enforcement of the judgment was made; that soon after the land was advertised and sold pursuant to the judgment; that notice of motion to confirm the sale was given to plaintiff’s attorney, but he, still supposing plaintiff had no interest, did not notify the latter; and that the sale was duly confirmed. Held, that plaintiff had been guilty of laches and was not entitled to relief.</p>

<p> Master and servant: Injuries through negligence: Fellow-servants: Special verdict: Instructions to jury. </p> <p>1. In an action for personal injuries sustained by a common laborer upon defendant’s coal docks, alleged to bave been caused by negligence of tbe foreman in placing tbe tripping device upon a wire cable, whereby tbe coal in a bucket running upon said cable was dumped outside of the hopper into which it should have emptied, and upon the plaintiff, who was passing beneath, there was no claim that there was any defect in the apparatus itself or in the system by which it was generally operated; and it appeared that the shifting and placing of the tripper was merely a detail in the operation of the apparatus, done frequently in the unloading of a vessel, and commonly by members of the working force to which plaintiff belonged. Held, that in so placing the tripper the foreman was merely a fellow-servant of the other employees, including plaintiff, and that for any negligence therein the defendant is not liable.</p> <p>2. In such a case the facts that the foreman had authority to hire, discharge, and direct the dock force, and was charged with the duty to see that the docks were so operated as to be safe, and to provide necessary lights, signals and warnings, did not render him other than a fellow-servant of plaintiff while performing the specific act mentioned.</p> <p>3. It appeared that it was customary, when unloading a vessel at night, to place gasoline torches at the hoppers into which the coal was to be dumped, and that this was the duty of certain of the dock force known as “water boys.” Defendant had provided such torches. Held, that the omission to use them at the moment of plaintiff’s injury, if negligence, was negligence of his fellow-servants.</p> <p>4. The submission, in a special verdict, of numerous questions relating to merely evidentiary facts, and the giving of instructions, in connection therewith, containing unnecessary statement of general rules of law, are criticised.</p>

<p>.(1) Justices’ courts: Appeal: Judgment without new trial. (2) Attorney and client: Compensation.</p> <p>1. The provision in sec. 3769, Stats. 1898, that upon the hearing of an appeal from a justice, where there is no new trial, “the appellate court shall give judgment according to the weight of the evidence and the justice of the case . . . without regard to the finding of the justice,” does not mean that the evidence-must he construed most strongly in favor of the losing party.</p> <p>2. In an action hy an attorney to recover for services, where defendant denied liability and alleged payment, the evidence-(stated in the opinion) is held to justify a finding for defendant.</p>

Action for damages* caused, as alleged, by the formation and execution of a conspiracy to defraud tbe plaintiff. Tbe ■substance of tbe complaint is as follows: On April 8, 1806, plaintiff owned a certain lot, described, in Kewaunee, Kewaunee county, Wisconsin. Sbe was then .and bad been for some time prior thereto an unmarried woman over twenty-on© years of age.

<p> Municipal ordinances: Construction: Waterworks: Minimum rates. </p> <p>1. A municipal ordinance granting a franchise to a waterworks company is not, in case of ambiguity, to be construed most strongly against the company, but by tbe same rules that govern in the construction and interpretation of statutes.</p> <p>2. Such an ordinance fixed maximum rates which might be charged to private consumers for certain purposes, and continued: “For other domestic purposes, proportionate to the above, but the lowest annual rate in any case shall be five dollars. Manufacturing and special uses, rates to be based on quantity of water used. All parties have the privilege of furnishing water meter and paying only for water actually used at rates varying from 20 cents to 30 cents per 1,000 gallons, viz: Consumption less than 1,000 gallons per day, 30 cents,” etc. When the ordinance was enacted, meters for domestic consumers were comparatively unknown. Held, that the provision relating to meters applied only to takers of water for manufacturing and special uses, and that the minimum rate for domestic purposes was five dollars.</p>

<p> Master and servant: Injury from falling timber: Unsafe place: Notice of defect: Proximate cause: Instructions to jury: Special verdict: Evidence: Appeal and error. </p> <p>1. A fire in defendant’s coal yard had damaged a structure of timbers, about twenty feet bigb, supporting tramways for tbe distribution of coal, and plaintiff, with others, was engaged in removing the soft coal, shoveling it into barrows and wheeling it to railroad cars. Much of the structure had been pulled down, plaintiff assisting, but a portion of it remained where they were at work. The top of the coal pile, which was about eighteen feet high, was covered with a thick icy crust, and it was necessary to break this up with picks. A co-employee so engaged loosened a mass weighing sixty or seventy pounds, which rolled down the face of the pile and struck an upright post or timber, from about which the coal had been removed so that only three or four feet of it remained covered. A horizontal timber resting on the top of the post immediately fell and injured the plaintiff. These facts, together with evidence tending to show, among other things, that the top of the post and the cap by which the horizontal timber was secured had been partially burned away; that the damage was greater on the westerly side and was not easily discoverable from the ground to the eastward, from which direction the men removing the coal had advanced; that plaintiff’s duties had not taken him west of the post; and that defendant’s foreman had inspected the structure and this particular post only a day or two before the accident, — are held sufficient to sustain findings of a special verdict to the effect that the support or fastenings of the beam which fell had been so far destroyed by the fire as to render the place where plaintiff was working unsafe and dangerous; that defendant was chargeable with knowledge of that fact; that the plaintiff was not chargeable with such knowledge; and that defendant should reasonably have foreseen that such an accident was likely to result from the defect.</p> <p>2. It appearing that the post in question was so braced that its top leaned toward the east, the fact that, although the mass of coal struck the post on its westerly side, the horizontal beam which had been resting on the partially burned-away top fell to the eastward, and the post was afterwards foúnd leaning slightly to the west, does not render unreasonable or purely conjectural the conclusion that the defective condition at the top of the post was the proximate cause of plaintiff’s injury by the falling timber.</p> <p>.3. An instruction that, in order to find proximate causation, the jury must be satisfied that the injury was the natural and probable consequence of the defect, and foreseeable by the exercise of ordinary care, was correct, and, while some of the terms used might properly have been amplified, the omission of such amplification was not error, in the absence of a formal request therefor.</p> <p>4. A refusal to submit for special verdict the question whether the risks and dangers of plaintiff’s work were open and obvious to a person of ordinary intelligence, is held not to have been error, where the jury were required to find whether or not the plaintiff knew of the unsafe and dangerous condition or by the exercise of ordinary care should have known of it.</p> <p>.5. The fact that plaintiff and his fellow laborers, as they carried off the coal, progressed from one end of the shed towards the other did not constitute such a change in, or creation of, the conditions of the place to work, as to relieve the defendant from liability for damages caused by the dangerous condition of the post at the point where it supported the timber.</p> <p>'6. The admission of evidence of the taking down of a portion of the superstructure lying in the direction from which the removal of the coal had progressed is held not to have been prejudicial to defendant, where the court excluded, because not pleaded, any liability of the defendant for any weakening of the remainder of the structure arising from such removal.</p> <p>7. Assignments of error not argued by appellant will not ordinarily be considered.</p>

<p> Telephone companies: Use of streets: Extensions: Grant of franchise. </p> <p>A telephone company having a franchise and right, under sec. 1778, Stats. 1898, to construct and maintain its lines upon the streets of a city and to extend such lines from time to time, submitted for approval its plans for an extension, pursuant to a city ordinance requiring such plans to be approved by the council. Held, that it thereupon became the duty of the council to take affirmative action recognizing the company’s right, and that such duty was not affected by the subsequent adoption by the city of secs. 940c-940i, Stats. 1898, regulating the selling of franchises.</p>

Action on a $5,000 insurance policy issued to Albert Lan-dretb. April 10, 1889, on a plan requiring a readjustment every ten years of the amount of premium to be paid yearly. The premium was fixed at $39.35 each six months for the. first period. At the end thereof the policy was renewed on the same terms and conditions as before. The assured assigned the policy to his wife. He died April 15, 1899. Formal proofs of the maturity of the policy were duly made.

<p>Appeal from an order of the circuit court for Eond du Lac county: Michael Kiewan, Circuit Judge.</p>

Eeeoe to review an order of the superior court of Milwaukee county: J. C. Ludwig, Judge.

<p>Appeal from a judgment of the circuit court for Chippewa county: A. J. Vest je, Circuit Judge.</p>

Mandamus to tie state treasurer. On December 17, 1901, the city of New Richmond applied for an original alternative writ of mandamus to command the respondent, as state treasurer, to act in obedience to eh. 286, Laws of 1901.

IhsH, Judge. On June 1, 1893, the Plankinton Bank of Milwaukee made a voluntary assignment to William Plankinton, who accepted said trust and qualified as assignee. On June 2d, notice to creditors was published.

BubNell, Circuit Judge. Plaintiff was janitor of a certain building in Oshkosh, gad defendant was one of a firm renting one of tbe stores contained therein. Some controversy arising as to the proper place for doing work in repair of sewers, and words and epithets passing between the parties, a personal encounter took place.

In 1890 the defendants J. B. and W. Brimer owned and operated a yarn and woolen mill in the town of Orion, in Richland county. Held: and certificates were so issued, including one for $1,000 to Thomas. The business was conducted for fire years, but was unprofitable. Tbe company was then $4,000 or $5,000 in debt.

Action for loss of a horse by negligence of defendant. The -evidence tended to prove the following state of facts: Plaintiff lived on a farm about a mile and a quarter west ■of a highway crossing known as “Fox Crossing,” on the defendant’s right of way.

<p> Corporations: Payment for stoclo in property: Assessments: Pleading. </p> <p>1. The twenty per centum of the par value of one half of the capital stock, which, under sec. 1773, Stats. 1898, must have been actually paid in before a corporation may transact business with others than its members, may be paid in labor or property estimated at its true money value.</p> <p>2. An allegation that calls or assessments on corporate stock were made by the directors pursuant to the by-laws of the company and pursuant to the authority in them vested, and that defendant had due and personal service and notice thereof, is held, on demurrer, sufficiently to allege that the assessments were made ahd notice thereof given as prescribed by the by-laws of the corporation.</p> <p>3. An allegation that a certain percentage of the par value of stock was assessed upon each and every share, sufficiently shows that the assessment was equal and uniform upon all subscribers to the stock.</p>

<p>La Grosse Brown H. Go. v. Goddard, ante, p. 610, followed.</p>

B. Wymaw, Circuit Judge. This is an action in equity to set aside a tax title upon eighty acres of land upon the ground of various irregularities in the tax proceedings, and upon the further ground that the relations of the parties were such that the purchase of the tax title by the defendant O. W. Allen constituted in law a payment of the tas.

<p>(1) Evidence: Opinions: Court and jury. (2, 3) Duress. (4) Checks: Presentation: Agreement to postpone.</p> <p>1. Opinion evidence as to an ultimate fact, based on a correct theory of the underlying facts, met by like evidence upon a wrong theory of such minor facts, does not create a conflict for solution by a jury.</p> <p>2. Duress of a person is that condition of such person’s mind, caused by wrongful conduct on the part of another, rendering the former incompetent to contract by the exercise of his own free will.</p> <p>3. Any amount of persuasion to influence one to exercise his own will to some particular end does not constitute duress.</p> <p>4. If a person gives his check to another on condition that it shall not be presented to the drawee bank for payment till funds are produced in such bank by the payment of a check given to it by such person upon another bank, he impliedly agrees that the latter check shall be paid within a reasonable time, and if, by his connivance or consent, or otherwise, it is not so paid, such other may present his check for payment notwithstanding, and upon its dishonor sue to recover thereon.</p> <p>[Syllabus by Makshakl, J.]</p>

B. Wyman, Circuit Judge. A former judgment in this case was reversed upon appeal to this court, and a new trial ordered, on January 11, 1898. 98 Wis. 157, 73 N. W. 993. The costs were id aid and the record remitted within sixty days thereafter.

<p>Appeal from an order of tbe circuit court for La Crosse county: J. J. Peuit, Circuit Judge.</p> <p>Por tbe appellant there were briefs by Skaar & Bosshard,. and oral argument by Otto Bosshard.</p>

J. Feuit, Circuit Judge. This is an action to recover a balance of $502.21 due for coal furnished and delivered to defendant between July 1, 1899, and March 31, 1900. The coal was sold and delivered by the firm of ITesser & Milton, who were wholesale coal dealers at Cincinnati, and operated mines in the New River ■district in West Virginia on the line of the Chesapeake & Ohio Eailway.

J. Feuit, Circuit Judge. Action on contract. Tlie allegations of the complaint are to the following effect: September 13, 1899, defendant duly applied to the supervisors of the plaintiff town, under sec. 1275, Stats. 1898, to lay out a public highway to lands owned by him. Such proceedings were duly taken pursuant thereto that the application was granted October 23, 1899.