Volume 115 — Wisconsin Reports

<p>Appeal fmn a judgment of the circuit court for Buffalo county: E. W. Helms, Circuit Judge.</p> <p>Action for trespass quare clausum. The complaint alleged that the defendant wilfully, maliciously, and wantonly broke and entered the plaintiff’s close, describing it as lots Nos. 1, 2, and 3, in block No. 2, range No. 2 N., range No. 2 W., according to the original village plat of Mondovi. It described the damage with much detail in the way of destruction of fence, shade trees, and shrubberies, and the effect of such damage upon plaintiff’s use thereof in connection with his residence thereon as a homestead. The complaint further’ alleged that the plaintiff, on the day of the trespass, was, and since lias been, and now is, the owner and. in possession of the described premises, and that the plaintiff and his ancestors in title had been the owners of, and in continuous, adverse, open, and notorious possession and enjoyment of, the premises up to the fence destroyed by defendant, under claim of title, exclusive of any other right, ever since September 13, 1870.</p> <p>The answer, while containing a general denial, proceeded to make allegations obviously limiting and defining that denial, consisting of substantially an. admission that plaintiff was the owner of the lots described in the complaint, and an allegation that defendant’s wife, for whom he acted, was the owner of lands immediately westward of those lots, and that the controversy grew out of a dispute as to whether the fence destroyed was on the west line of plaintiff’s premises, or was some distance west thereof, and that his acts in removing tire fence, etc., were done because such fence was on bis wife’s premises.</p> <p>At tbe trial the plaintiff proved without dispute that the village'plat of Mondovi Was made in 1888; that it was marked upon the ground by stakes of a particular description; that a fence was built in the same location as the fence in dispute long before 1868; and that as late as 1869 at least one of the original survey stakes upon that line still existed and corresponded with this fence. Tie also proved the execution and delivery of - a warranty deed to his father in September, 1810, of the lots in question, and the continued occupation thereof as a residence and homestead by his father and his family and by himself, accompanied by intermediate conveyances and descent, from 1870 down to the time of the alleged trespass; the maintenance of the fence in dispute as the liné fence and as the limit of the occupation of plaintiff and his predecessors in title to the east and defendant’s predecessors in title to the west of it; also that the defendant derived his title from the same original grantor; and that the fence was pointed out to him as the eastward boundary of his purchase at the time thereof in 1892. It was also proved without dispute that in 1886 one Neal, defendant’s predecessor in title, expressly agreed upon this fence as the dividing line, in reliance upon which agreement plaintiff’s predecessor in title built a bam close up to the fence, which, however, had afterwards been removed elsewhere upon the lot.</p> <p>The court directed a verdict for the plaintiff, submitting only the question of damages to the jury, which they answered in the sum of $325. Defendant moved upon the minutes to set aside the verdict and grant a new trial, and after-wards, before judgment, made a second motion for new trial on the ground of newly discovered evidence. Both motions were overruled, and judgment entered for the plaintiff upon the verdict, from which the defendant appeals.</p>

<p>Appeal from an order of the circuit court for Dunn ■county: E. W. Helms, Circuit Judge.</p> <p>This action was commenced January 31, 1901, to recover $1,000 damages for moneys obtained from the plaintiff by fraud and false representations. This is an appeal from an •order overruling a demurrer to the complaint.</p> <p>Tbe complaint alleges, in effect, that July 9, 1880, Hamilton Hubbard, the father of the plaintiff, owned 800 acres of land and some village lots, therein described, in Dunn county; that one A. L. Smith owned a mortgage thereon, securing an indebtedness to him against the plaintiff’s father, and abo held a tax deed on a part of such real estate; that in all the transactions therein mentioned the defendant was the agent and acted for Smith, and also advised and counseled the plaintiff’s father as his attorney; that by the advice and direction of the defendant, the father, on tire day and year named, conveyed such real estate to one Hatch, to hold for his benefit, and to reconvey to him when demanded; that at the same time Smith released his interest in the premises under the tax deed, and Hatch executed two mortgages to Smith — one for $1,000, covering the property described and certain property of Hatch in Richland county, and another for $1,200, covering the property described; that the defendant caused both of such mortgages to be foreclosed, and at the foreclosure sale; and without the knowledge or consent of the plaintiff, the defendant caused such real estate to be struck off in tire name of the plaintiff for $3,070.16, and caused a deed thereof to be executed to the plaintiff, and recorded September 22, 1882; that at that time there were certain judgments against the father aggregating a large amount, duly docketed in Dunn county and unsatisfied of record, and, if unpaid or unsatisfied, then the same were valid and existing liens against such real estate; that tire existence of such judgments, and whether the same, or any part thereof, were then unsatisfied, were facts Well known to the defendant, and of which the plaintiff had no knowledge or information.</p> <p>The complaint then alleges that during all the times mentioned the plaintiff was a farmer, wholly inexperienced in law, and ignorant of the existence of such judgments and the fact of their being a' lien on such real estate; that in all the ads of the plaintiff therein mentioned he relied solely upon tire defendant, and acted upon his advice, all of which facts were well known to the defendant; that September 30, 1882, the defendant requested the plaintiff to execute and deliver to Smith five notes and a mortgage on such real estate, to secure his father’s indebtedness to Smith; that for the purpose of deceiving and defrauding the plaintiff and inducing him to so execute such five notes and mortgage, the defendant falsely and fraudulently represented to the plaintiff that by so doing he would assume no personal responsibility, that no demand could or would be made upon him for the payment of such indebtedness, but that only the property covered by the mortgage would be liable for the payment of such indebtedness; that for the same fraudulent purpose the defendant failed and neglected to disclose to the plaintiff the fact of the existence of such judgments, and that they were apparently liens against the property, but fraudulently and wrongfully concealed such facts from the plaintiff, and led him to think and believe that the mortgage so executed by him would be a first lieu on such real estate; that the defendant then and there well knew that the representations so made by him to the plaintiff were false; that because of such false and fraudulent representations and concealment, and relying thereon, and believing them to be true, the plaintiff executed such notes and mortgage to Smith; that the plaintiff was in no manner interested in the real estate, or interested in or liable for the indebtedness which such notes and mortgage were given to secure, and in executing the same he acted at. the instance and request of the defendant; that some time after the execution of the five notes and mortgage to Smith, the plaintiff’s father, through the plaintiff as his agent, delivered to the defendant $900 to be applied on' such indebtedness, and the defendant, for the purpose of defrauding the plaintiff, wrongfully and fraudulently failed and neglected to so apply such nloney or any part; thereof, but wrongfully and fraudulently converted the same to his own use.</p> <p>The complaint then alleges that September 21, 1883, the defendant requested the plaintiff, for the purpose of taking up the notes and mortgage so executed by the plaintiff to Smith, to execute in lieu thereof his note and mortgage to one Parker for an amount equal to the amount remaining due on the notes to Smith; that for the purpose of deceiving and defrauding the plaintiff, and inducing him to sign such note and mortgage to Parker, the defendant again fraudulently and wrongfully represented to the plaintiff that by signing such note and mortgage he would assume no personal responsibility, and again assured and promised the plaintiff that no demand could or would be made on him for the payment of such note, and again failed and neglected to inform the plaintiff of the existence of such judgments, and led the plaintiff to believe that such mortgage to Parker would be a first lien on the premises; that because of such false and fraudulent representations, and relying upon the same, and believing them, to be true, and because of such former false and fraudulent representations and concealments, and still relying thereon, and still believing them to be true, the plaintiff did, September 21, 1883, execute a note for $1,000 and a mortgage to Parker, believing that he was in no manner liable thereon, and so believing, and because of such representations, he did not use great diligence in ascertaining what papers he was executing; that he understood he was executing a note and mortgage for $1,000; that he had no knowledge of executing any other note or mortgage at that time, but that it appears from the records that he executed two mortgages at that time, — one to Parker to secure two notes of $1,000 each, and one to William C. McLean to secure a note of $500; that whatever notes or mortgages he signed at that -time were so signed at the request of the defendant, and because of the false and fraudulent representations mentioned; that the defendant was tbe agent of Parker, and represented him in all the transactions mentioned.</p> <p>It is then alleged that thereafter the defendant caused the mortgage to Parker to be foreclosed by advertisement, and the said lands were sold under such foreclosure September 15, 1888, to the defendant, for $1,118.49; that said lands were worth at the time of such sale not less than $4,000, and bait for the fraudulent acts of the defendant thereinafter mentioned said lands would have sold for at least sufficient to satisfy the mortgage; that such judgments appeared to be still unsatisfied and existing liens against the property prior to the Parker mortgage, but had been in fact paid by the defendant ■with the money of the plaintiff’s father, and while the defendant was his attorney, and should have been satisfied of record by the defendant, but the defendant had fraudulently and wrongfully taken assignments of such judgments to himself, and allowed the same to remain unsatisfied of record, and apparent liens against the land prior to such mortgage, for the purpose of preventing persons from bidding on the sale and the property selling for what it was worth, and thereby defrauding the plaintiff; that to carry out such purpose the defendant caused the 800 acres on such sale to be offered in one entire piece, and not otherwise, whereas they should have been sold in farms of not exceeding 160 acres each; that the defendant caused such lands to be so sold when there was no person present to bid on the sale but himself.</p> <p>The complaint further alleges that after the foreclosure sale, and after the $900 had been delivered to the defendant as mentioned, and for the purpose of defrauding the plaintiff, the defendant wrongfully and fraudulently caused one of the notes so executed by him to Parker to be transferred and assigned to the Wisconsin Loan & Trust Company, a corporation doing business at Superior, in which the defendant is, and at all the times mentioned was, a stockholder, and officer, having control of its affairs; that September 12, 1894, for the purpose of defrauding the plaintiff, the defendant fraudulently and wrongfully caused an action to be brought against the plaintiff on the note so held by that corporation; that October 5, 1894, judgment was obtained thereon against the plaintiff in favor of the corporation by default for $1,631.50 ; that July 26, 1900, the defendant, with knowledge that such judgment had been fraudulently procured, and that there was nothing due on that note upon which such judgment was so procured, fraudulently and wrongfully caused an execution to be issued on that judgment, and caused the personal property of tire plaintiff to be levied on and seized by virtue of such execution, and the plaintiff was thereby compelled to and did, in order to save his property so levied upon, pay to tire sheriff upon that execution $1,000; that ever since the plaintiff signed such notes the defendant has fraudulently and wrongfully caused the plaintiff to continue relying upon said false representations that he assumed no personal liability by signing said notes and mortgages, and to believe the same to be true; that for the purpose of defrauding the plaintiff, and preventing him from learning of the fraud, aird from protecting himself from such fraud either at the time of such foreclosure or at the time of the commencement of such action against him or at any other time, the defendant has fraudulently and wrongfully failed and neglected to notify the plaintiff that any claim was made against him for the payment of such indebtedness, and caused the plaintiff to be wholly ignorant of such fact; that because of such fraudulent concealment the plaintiff ■ had no notice or knowledge that any claim was made against him for the payment of such indebtedness, or of the fraud perpetrated against him by the defendant, until the levy of said execution; that because of the false representations of the defendant and the reliance of the plaintiff thereon, and the belief that the same were true, the plaintiff did not appear at the foreclosure sale ■or take any interest therein, and that because thereof, and relying thereon, the plaintiff believed that the summons served upon him in the action against him was an action affecting the title to the real estate, and in no manner affecting him, and for that reason did not appear in that action, and for the same reason did not take steps to open up the judgment in said action, and did not take any steps to protect himself against the fraud of the defendant. The complaint alleges, finally, that all of such fraudulent acts, false representations, wrongful sale, failure to apply the $900.upon the indebtedness of the plaintiff’s father, the wrongful sale of the note, the bringing of the action thereon, the issuing of the execution, the levy thereunder, and the fraudulent concealment from the plaintiff that any personal claim was made against him, were a part of one fraudulent plan or scheme of the defendant, whereby the plaintiff has been damaged in the sum of $1,000.</p>

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

SiebbcKER, Circuit Judge. Tbe plaintiff, a domestic corporation, sued tbe defendant in justice’s court for a balance alleged to be due of $68.98 upon tbe sale of 8,729 pounds of cheese at eleven cents per pound. Tbe defendant filed a general denial and pleaded payment.

Parish, Judge. Action, against the estate of Robert Henry, who died in 1899. March 14, 1900, plaintiff, the deceased’s daughter, filed her claim, in the county court for Buffalo county, for $1,825. She alleged that it was a balance of principal and interest for money deposited with her father, to be loaned, at various times commencing in 1810 and ending in 1878.

<p>Appeal from an order of the circuit court for Pierce county: E. W. Helms, Circuit Judge.</p> <p>The relator obtained a writ of certiorari from the circuit court for Pierce county by which he sought to review the action of the board of review of the village of Maiden Rock. Before making return to the writ, the respondent obtained an order for the examination of the relator, under sec. 4096, Stats. 1898. Thereupon the relator made a motion before the circuit court “to limit the subjects of the examination of the relator herein.” This motion was denied, with $10 costs of motion. The relator appeals from such order.</p> <p>The cause was submitted for the appellant on the brief of Walter C. Owen.</p>

E. Duhwiddie, Judge. By ch. 282, Laws of 1901, there was appropriated from the general fund an amount not exceeding $20,000, “for the purpose of constructing and strengthening the levee system already existing in tbe vicinity of Portage on tbe Wisconsin river in Columbia and Sauk countie®, Wisconsin.” A commission appointed by tbe governor was created to have charge of such work, “in such manner as, in their judgment, will best protect said city and vicinity from the…

<p>Criminal law: Justices' courts: Fine and commitment until ‘payment: Limiting time: Jurisdictional errors: Certiorari.</p> <p>1. In a sentence, under the statutes, providing for punishment by fine and costs of prosecution and, in case such fine and costs be not forthwith paid, that the prisoner shall be committed to the proper county jail until they are paid or until discharged by due course of law, the alternative element is primarily a mere means of enforcing the element of punishment, and whether the relation between the two elements he indicated by the word “or” or the word “and,” the statutory idea is embodied in the sentence with unmistakable clearness.</p> <p>2. The provision of sec. 4638, Stats. 1898, requiring the time of the commitment of any person to jail for nonpayment of a fine and costs to be limited and not in any case to exceed six months, applies to every case where such a commitment is authorized under any statute.</p> <p>3. A writ of certiorari is proper only to correct jurisdictional errors.</p> <p>4. If a justice of the peace renders a judgment which he has no authority to render under any circumstances, he thereby commits a jurisdictional error, remediable by writ of certiorari.</p> <p>5. Since the statute in mandatory terms requires, in case of a commitment to the county jail of a person for nonpayment of a fine and costs, that the time of the detention for such nonpayment shall be limited by the sentence and not exceed six months, a sentence by a justice of the peace wholly disregarding such statute is in excess of his jurisdiction, is illegal, and the error is remediable by writ of certiorari.</p> <p>[Syllabus by Makshall, X]</p>

<p>Appeal from an order of the circuit court for Eau Claire-county: James O’Neill, Circuit Judge.</p> <p>Proceedings were duly bad, on petition of tbe mayor and common council of tbe city of Eau Glaire, pursuant to see. 1077®, Stats. 1898, for a revision of tbe county assessment of tbe property in tbe various taxing districts thereof for 1899, resulting in a decision by tbe commissioners, duly evidenced by their certificate filed with tbe county clerk according to law, reducing the assessed value of tbe property of such city $1,177,403, and that of tbe city of Altoona $6,909, and’ increasing the assessed values of the property of tbe other taxing districts in tbe county, over those made by tbe county board, in proportion to such values, sufficient to leave the-total value of all tbe taxable property in tbe county for such year the same as that fixed by tbe county board. A writ of certiorari was sued out of tbe circuit court on tbe relation of several of tbe taxing districts, represented by their proper officers and by several taxpayers thereof, being parties who now appear as appellants, to test tbe validity of tbe commissioners’ decision.</p> <p>Tbe grounds of tbe invalidity claimed in the petition are: Eirst, that tbe commissioners ruled that they bad no jurisdiction to inquire into whether the property in tbe city of Eau Olcuire, or any taxing district which was subject to taxation for tbe year 1899, was- omitted from the assessment rolls and not considered by tbe county board, or to take such property into consideration in mailing tbe decision, and accordingly refused to hear evidence offered to prove that there was more-than $1,500,000 of personal property in the city of Ea/a Claire so omitted in 1899 from tbe assessment roll and ignored by the board in making its assessment, such property consisting of bank credits and other debts to residents of said city over and above their exemptions; second, that the certificate filed by the commissioners, evidencing their determination, was not in the form required by law. The petition for the appointment of the commissioners, the order appointing the commissioners, and their certificate, were made a part of the petition for the writ. No complaint was made of any matter up to and inclusive of the commencement of the proceedings before the commissioners.</p> <p>The writ was directed to the county clerk, the clerk of the circuit court of Eau Claire county, the cities of Ban Olaire and Altoona, and the commissioners. It was duly served on all such parties. A motion was duly made to supersede the writ, which was granted by the court and an order was entered accordingly, from which this appeal was taken.</p>

Gertiorari to review the proceedings of a commission appointed under sec. 1077a., Stats. 1898, to revise the county assessment of Eau Claire county for the year 1900.

<p>(1-4) Public lands: Swamp lands or lalce?' Evidence: Original survey: Court and jury. (5-12) Adverse possession: Evidence: Presumptions: Continuity of disseisin: Re-entry by owner: Attornment: Marsh or overflowed lands.</p> <p>1. The official platting of lands by authority of the United States, indicating the character thereof as regards •whether swamp or marsh lands or lands covered by the waters of a lake, as the same appeared to the official surveyors at the time the original survey thereof was made, is prima facie evidence as to their then character in fact in an action involving the question of whether they were a part of the public domain and subject to sale to private parties.</p> <p>2. A prima facie case made by evidence of the character indicated in the preceding paragraph, after the lapse of a term of years so long that it is difficult to establish definitely, if at all, from the mouths of witnesses, the conditions existing at the time of the original survey, should be deemed conclusive in the absence of clear and satisfactory evidence to the contrary.</p> <p>3. A prima facie case made in the manner indicated in the first paragraph should not be deemed so disturbed as to reasonably permit a finding contrary thereto, by evidence of witnesses whose personal knowledge does not reach back further than to within ten years of thp time of the original survey and who do not agree between themselves as to the conditions during the-time covered by the testimony, there being evidence of changes during the time intervening between the survey and the period covered by their testimony, which will account for the difference between the conditions claimed to have been observed by them and those apparently discovered by the government surveyors.</p> <p>4. Mere flat, marshy lands along a river bank, submerged in many or most places by water on a level, substantially, with that of' the river, — the stream, with its bed, banks and current, being well defined through the entire territory, — cannot be legitimately considered as having the physical characteristics of the bed of a lake or the legal characteristics thereof, especially where the lauds were surveyed and sold as part of the government domain.</p> <p>5. The facts essential to adverse possession must be established by clear and satisfactory evidence, the presumptions being in favor of the true owner till facts are so established indicating continued disseisin of such owner for the full period necessary to divest him of his title. The foregoing rule is not satisfied by mere general statements of witnesses not based on facts warranting them, nor in the face of facts conclusively established rendering adverse possession not within reasonable probabilities.</p> <p>'8. The facts, that during substantially the whole period of an alleged adverse possession of land the alleged hostile possessor exercised no more dominion over one part of the land than of another, that many persons located thereon and appropriated parts thereof in severalty for homes without consulting him or recognizing him as proprietor in any way, that he made no objection to their conduct as an invasion of his rights, and that he never treated the premises as his property in the manner that an owner naturally would, are inconsistent as a matter of law with adverse possession by such alleged possessor, and such facts being established, they should rule the controversy as to such adverse possession as a matter of law.</p> <p>7. If an owner of land be disseised thereof by another, any notorious re-entry by the former in person or by his authorized 'agent for the purpose of dispossessing the disseisor, will effectively1 interrupt and put an end to the latter’s adverse possession, re-, gardless of the length of time the interruption continues.</p> <p>3. That which actually breaks the continuity of adverse possession ends it for all purposes. The disseisor of the true owner may, by a fresh disseisin, start a new period of adverse possession, but cannot thereby obtain any benefit whatever from prior possession.</p> <p>9.The essentials, of an entry effective to break an. adverse possession will vary according to the character of the premises involved.</p> <p>10. A re-entry of a mere casual or secret character will not interrupt an adverse possession. The re-entry, to have that effect, must be animo clamandi, and either known to the occupant or characterized by acts or circumstances from which knowledge on his part would be reasonably inferred.</p> <p>11. If an adverse occupant of land attorns to the true owner the dis-seisin of the latter is thereby interrupted.</p> <p>12. Entry by the true owner, upon premises not physically occupied adversely so as to permit physical disturbance thereof, the premises being marsh or overflowed land not inclosed and having no artificial objects thereon maintained by the adverse occupant, susceptible of physical, visible interference, and a survey of tlte premises, states being located to indicate the boundaries thereof, and exploring and traversing the premises from day to day for a considerable period of time, animo clamcmdi, so as to reasonably charge the adverse occupant with knowledge that his possession is challenged and that an opportunity exists for him to vindicate the same if he desires, is sufficient to break the continuity of the disseisin.</p> <p>[Syllabus by Marshall, X]</p>

Appeals from orders of the circuit court for Milwaukee county: EugeNe S. Elliott, Circuit Judge. Action to quiet a controversy as to tire legal effect of tbe will of Sberbnm S. Merrill, claimed by plaintiffs to be a suit in effect for tbe construction of snob will. Tbe complaint, by appropriate-allegations, shows that all persons interested in tbe validity of that part of tbe will called in question are parties plaintiff or defendant.

<p> Telephone companies: Condemnation proceedings: Prior judgment for removal of pole. </p> <p>After the entry of a judgment ordering the abatement and removal of a telephone pole as a nuisance, eh. 319, Laws of 1901, was én-acted, authorizing the taking by condemnation of rights and easements for telephone purposes. The act provided that it should not apply to any pending action nor to any claim or cause of action existing prior to its passage. Held, that the telephone company could not, by condemnation proceedings under the act, acquire a right to maintain the pole which would supersede the right to enforce the judgment for its removal.</p>

M.'Webb, Judge. This is an action in equity, brought by a tenant against his landlord and two other persons for relief by way of injunction and damages. The action has been before in this court upon a former appeal, and will be found reported in 107 Wis. 273, 83 1ST. W. 288, where a judgment for the plaintiff, rendered upon the pleadings, was reversed, and the action sent back to the trial court for further proceedings.

J. Fruit, Circuit Judge. In August, 1895, the plaintiff commenced this action'for a partition of lot 3, block 12, of Dunn, Dousman & Cameron’s addition to La Crosse, with other lands. The plaintiff and the defendants August, Conrad, and Georgina Schmidt were each the owners of an undivided one-fourth interest in this lot.

<p>Appeal from a judgment of tbe circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.</p> <p>On July 25, 1892, plaintiff bought of Bradley & Son the stumpage on certain lands in Michigan, near Paulding, on contract for $12,000, paying $4,000 in cash, giving his notes for the balance-. On December 27, 1892, he sold to the defendant Paulding Lumber Company the stumpage on part of the same lands for $9,000, payable in sis months, with seven per cent, interest, retaining a lien for the entire purchase price. On the same day this contract was modified so that, in case certain of the timber was not cut during the logging season of 1892-93, the time for the payment of $2,500 of the purchase money should be extended for eighteen months. On December 30, 1892, the Paulding Lumber Company assigned its contracts as collateral security to the defendant German National BanTc, and contracted to pay certain sums due the bank from divers parties named, and such sums as the bank might advance to aid it in cutting and manufacturing said timber into lumber. Tbe banlc agreed to make advances to carry on tbe work, not to1 exceed $1,500. On January 28, 1893, plaintiff borrowed from tbe defendant bank and J. If. Jenkins $4,122 to make tbe second payment due on tbe Bradley contract, and assigned to tbem bis interest in tbe latter contract, and also bis contract with the Paulding Lumber Company, assignments absolute in form. Tbe bank; by its president, executed a writing to I-lyde, reciting that be bad left tbe contracts in trust as collateral for bis two notes, and upon payment of tbe same bis contracts were to be returned.</p> <p>After the Paulding Lumber Company obtained its contract from plaintiff it attempted to do some logging, but, owing to great depth of snow, was able to put in only 30,000 or 40,000 feet. During tbe summer of 1893 it carried on summer logging. In October, 1893, Hyde let a contract to one Lando to cut logs on lands in tbe Bradley contract unsold. lie proceeded to' cut during tbe winter, and delivered tbe logs at the Paulding Lumber Company sawmill. He quit before finishing bis contract, and it was taken up and completed by tbe Paulding Lumber Company. In tbe meantime tbe Paulding Lumber Company made advances to Laudo1 for Hyde, and be made large advances to1 the Paulding Lumber Company, so that tbe advances in bis favor were some $4,000 or $5,000. Tbe bank also made large advances to tbe Paulding Lumber Company. On February 12, 1894, tbe bank, at Hyde's solicitation, took up tbe last $4,000 note to Bradley & Son, and held it as collateral security for Hyde's note to tbe bank.</p> <p>On March 1, 1894, Hyde and tbe Paulding Lumber Company made a contract by which Hyde was empowered to' pay any claim then existing, or that might thereafter arise, for labor and work done or materials furnished in cutting and sawing tbe logs into lumber, and have an additional lien for such payments. Tbe contract also contained a further stipulation on the part of Hyde as follows:</p> <p>“And the said first party promises and agrees that he will pay all claims now existing for the work and supplies aforesaid, and such as shall arise from this date to* the first day of April next, inclusive, as shall be subject to liens.”</p> <p>Pursuant to this agreement Hyde made further advances, and paid certain claims, which were fully set out in bis account, but did not pay all the claims against the logs and lumber stipulated to be paid under the contract last mentioned. During the spring and summer of 1894 the Paulding Lumber Company sawed both the logs cut under its contract and those part in by Hyde, and intermingled the lumber so that it could not be separated. The bank continued to make advances to the Paulding Lumber Company, and paid some lien claims hereinafter mentioned. The bank took possession of the lumber, sold it, and received the pay therefor.</p> <p>On November 21, 1894, Hyde commenced this action for his share of Hie proceeds of such lumber over the amount of his notes. The bank answered at great length, the substance of the answer being that Hyde and the Paulding Lumber Company pledged their contracts and the proceeds of the timber and lumber cut from the lands therein described for payment of all advances made and to be made to Hyde, to the Paulding Lumber’ Company, or both; that is, that, so far as the bank and Jenkins were concerned, the separate interests of Hyde and the Paulding Lumber Company should stand as joint property, and advances to each should stand as advances on joint account, and that the advances so made exceeded the receipts from lumber sold. Under this asserted agreement it counterclaimed for a lien upon all unsold lumber and all standing pine for the balance its due. The Paulding Lumber Company answered, admitting certain receipts from Hyde, and asserting certain offsets, and setting up an agreement to put the lumber taken from all the lands in the Bradley contract in a pool, so that, so far as the bank and Jenkins were concerned, it was to be a joint venture. It also counterclaimed for damages caused by the act and neglect of plaintiff. The counterclaims were each put in issue by proper reply.</p> <p>To save the expense of an accounting on a basis that might be held incorrect, the parties stipulated that the question of whether the interest of plaintiff was pledged as security for the debts of the Paulding Lumber Company should first be tried, and that the accounting should thereafter proceed on the basis determined by the court. Such issue was tried in 1896 before Judge Chas. M. Webb, who made findings substantially as follows:</p> <p>(1) Plaintiff did not at any time or in any manner pledge his property to pay the debts of the Paulding Lumber Company. (2) Plaintiff did on January 28, 1893, pledge his interest in the Bradley & Son contract and his interest in the Paulding Lumber Company contracts to the defendant bank to secure the payment of two notes amounting to $4,122. (3) Thereafter the bank advanced to plaintiff $4,000 to take up the last note due on the Bradley contract, taking his note therefor, and holding his note to Bradley & Son as collateral security for the same. (4) As these several notes became due, plaintiff paid the interest and gave new notes, so that on March 10, 1894, tire bank held Hyde's notes as follows: Note dated February 12, 1894, eight per cent., $4,000; note dated February 17, 1894, eight per cent., $835.91; note dated March 7, 1894, eight per cent., $2,000; Jenkins note, dated March 10, 1894, $2,122. (5-) Note last mentioned was secured by pledge of plaintiff’s interest in said contracts. (6) December 30, 1892, the interest of the Paulding Lumber Company in its contract with plaintiff was pledged to secure money theretofore loaned to it. (7) March 1, 1894, plaintiff agreed to pay claims against the Paulding Lumber Company hereinafter mentioned. (8) Plaintiff claims to have paid large sums under said contract, and to bave a lien on tbe lumber for tbe same. (9) Tbe bank claims to bave advanced large sums to tbe Paulding Lumber Company to enable it to carry on its business. (10) Tbe bank-also claims to bave paid considerable sums1 to discharge liens. (11) Tbe bank took possession of tbe logs and lumber cut from tbe lands described in said several contracts, and has sold tbe same and bolds tbe proceeds.</p> <p>Conclusions of law: (1) Neither the bank nor Jenkins has any lien upon plaintiff’s interest in said contracts; except for the debts owing by him to them, and interest should be computed to such time as tbe bank bad sufficient of the proceeds of said lumber to discharge the same. (2) Plaintiff has a lien upon tbe logs and lumber cut from tbe lands described in contract with Paulding Lumber Company, and upon proceeds thereof, to secure him tbe $9,000 due, which is a first lien. (3) Tbe bank has a lien upon such property, and tbe proceeds thereof, for its advances. (4) Plaintiff has a lien thereon for money and supplies furnished under tbe contract of March 1, 1894. (5) That an accounting should be bad on the basis of tbe facts found.</p> <p>A bill of exceptions was settled, and tbe case was taken to this 'court by tbe defendants. Tbe appeal was dismissed. "98 Wis. 406. Thereupon tbe case was referred to a referee, under an order requiring him to account separately: (1) The amount loaned by tbe bank to tbe Paulding Lumber Company to secure which its contract was pledged; (2) amount paid by bank to discharge liens; (3) amount advanced by plaintiff under tbe contract of March 1, 1894, with tbe Paulding Lumber Company; (4) amount paid by him to discharge liens; (5) amount of account of the Paulding Lumber Company against plaintiff.</p> <p>On tbe trial before tbe referee it was stipulated that tbe accounting should cover all tbe operations connected with tbe Bradley pine described in tbe contract, whether tbe opera-tioujs were before or after tbe commencement of the suit, and whether included in the pleadings or not, and should extend down to the present time. The testimony taken on the former hearing, and of the parties before trial, was also stipulated into the case. It seems to have been conceded that the total amount received by the bank as the proceeds from the lumber was $29,606.68, and by plaintiff $210.09. A great amount of testimony was taken with reference to the advances made by the bank and the circumstances under which the money was paid. The referee’s account was made up with reference to certain vouchers and exhibits offered by the bank, and was not itemized except as it referred -to the envelopes containing the exhibits. The contents of each envelope was summarized and carried into the acount in gross amount, so that it is impossible to ascertain the nature of the items allowed, except upon an examination of the testimony in connection with the various exhibits.</p> <p>The bank’s account was stated as follows:</p> <p>Cask advanced to the Paulding Lumber Company. $25,843 56</p> <p>Interest to March 1, 1901. 12,477 36</p> <p>Amount paid to discharge liens. 1,994 53</p> <p>Taxes paid. 357 38</p> <p>Hyde’s account:</p> <p>Total account allowed... $13,244 18</p> <p>Less amount used to carry on his own operations. 4,841 30</p> <p>Balance chargeable to Paulding Lumber Co. $ 8,402 88</p> <p>Interest to March 1, 1901. 4,087 42</p> <p>Taxes paid. 100 00</p> <p>Paulding Lumber Company account:</p> <p>Saw bill, etc. $3,883 14</p> <p>Interest. 1,875 70</p> <p>The referee declined to find upon some 109 requests made by defendants, holding that he had no power ix> determine the ultimate issues in the case. Thereafter some additional testimony was taken, and the cause was finally brought before'the court for determination. Tbe court thereupon made findings as follows:</p> <p>“The defendant German National Bank of Oshkosh has requested me to answer seventeen questions. I have concluded to put my findings of fact in the form of an answer to those seventeen qustions, believing that such questions and answers cover all the issues not disposed of by my findings of fact and conclusions of law upon the first trial hereof. Such questions and my answers thereto are as follows:</p> <p>"First. Was it agreed in February, 1894, that the payment of the claim of WeZcome Hyde of $9,000 purchase price for the timber sold by him to the Paulding Lumber Company, and for which he had a lien, should be postponed or waived until the bank was paid? No. So decided at first trial before the court.</p> <p>"Second. Was the bank, as the purchaser of the $4,000 note given by Hyde to Bradley & Son, part purchase price of the timber, subrogated to all the rights of Bradley & Son ? If so, what were the rights of the bank in that regard as against Welcome Hyde and the Paulding Lumber C'ompany ? Tes. And the bank has the right to have all property exhausted, if necessary to pay this claim. It becomes Hyde’s debt to the bank. To secure it, he pledged all his interests, including the $9,000 claim vs. Paulding Lumber Company for purchase money of land described in contract ‘B\</p> <p>"Third. Was it agreed that the saw bill for sawing Hyde logs should be applied upon the purchase price of $9,000 ? No. It should be settled or adjusted in the general account.</p> <p>"Fourth. Should the cost of logging the 108,000 feet of ITyde logs by the Paulding Lumber Company, amounting to $432, be applied upon the $9,000 purchase price due Hyde from the Paulding Lumber Company? No. Should be adjusted in the settlement of accounts between Hyde and the Paulding Lumber Company.</p> <p>"Fifth. Were supplies advanced and furnished by the bank to the amount of $2,505.62, which went directly into Hyde’s logging operations, while Lando was logging for Hyde -under his independent contract ? This should be disposed of on the general account. Was furnished by bank to Paulding Lumber Company. May have been furnished by Paulding Lumber Company to Hyde9 and should stand against advances by Hyde to Paulding Lumber Company. Practically contemporaneous.</p> <p>“Sixth. Was it agreed that the amount of these advances, so made directly for Hyde’s benefit, should be applied upon the $9,000 purchase price due Hyde from the Paulding Lumber Company? No.</p> <p>“Seventh. Did the bank make payments and advances after March 10, 1894 (the date of Hyde’s agreement with the Paulding Lumber Company), to avoid liens against this property which had been pledged to the bank, both by Hyde and the Paulding Lumber Company ? Defendant claims that the amount so paid was $2,010.65. If not that sum, what was the amount ? Yes. Por taxes, certain labor lien claims, and insurance, as stated by referee.</p> <p>"Eighth. The referee has found that the amount of moneys paid by the German National Bank to discharge liens upon this property was $1,751.91. The defendants claim that the amount was greater. What, as a matter of fact, was the amount ? The referee’s finding in this behalf is correct.</p> <p>“Ninth. Should not the freight, $54.00, paid on 108,000 feet of Hyde’s logs, and time checks against Hyde’s logs to the amount of $353.26, and money paid-to Joe Boehmer, $131.53, be first repaid to the bank, or, in any event, offset against Hyde’s claim of $9,000 ? No. This stands on general account between Hyde and the Paulding Lumber Company.</p> <p>“Tenth. What damages, if any, did tire defendants suffer by reason of Hyde’s conduct in delaying logging operations, shipment of lumber, etc. ? In other words, the issue raised by the counterclaim in defendants’ answer should be disposed of by this court. Proof not satisfactory that any damage was suffered. Bonds to railway company might have been given •at any time instead of at a late time, and it is not apparent that defendants did not have timber as soon as they really oared for it.</p> <p>“Eleventh. If this court finds that the Paulding Lumber Company was entitled to damages upon the issues raised by the counterclaim, should not the amount of those damages be offset against the $9,000 purchase price due Hyde from the Paulding Lumber Company? No.</p> <p>“Twelfth. It is undisputed in this case that the bank advanced large sums of money to protect this property and preserve its liens as pledgee. Under .the law and undisputed facts, is not the bank entitled to a first lien upon the property for all such advances superior to Hyde’s lien ? Is not the bank entitled to have these amounts first repaid ? This question is, in effect, answered negatively by findings in first trial; also, by answers to pregoing questions 1, 3, 4, 5, 6, and 7.</p> <p>“Thirteenth. In equity and upon marshaling the assets, in any event and outside of any special agreement between the bank and Hyde, should not the saw bill, as well as the amount advanced to Lando for Hyde’s benefit, about $2,505.62, as well as the amounts advanced by the bank to avoid liens, as well as the cost of logging Hyde’s logs, and other such items, be offset against the $9,000 ? Should not this be done in equity, under the rule laid down fey the courts in ‘application of payments’ ? No; as before found.</p> <p>’’Fourteenth. Were not all of the advances of the bank made in good faith, and after the first advances in January, 1893? Were not such advances made for the purpose of protecting its security and preserving its lien as pledgee? No. Advances were generally under the contract. Much of the evidence tends to prove that the parties so understood at the time. (See answer to foregoing questions 7 and 8.)</p> <p>’’Fifteenth. What are the rights of the German National Bank as pledgee of the property, the same having been pledged both by Hyde and the Paulding Lumber Company? As against Hyde’s property, the right to take some of his debts to bank and Jenkins; as against the Paulding Lumber Company, the right to take its property to pay its: debts to bank.</p> <p>’’Sixteenth. What was the amount of money received by the bank from the sale of lumber, and in this connection what was the amount of rotten, worm-eaten, and worthless timber which was cut upon section twenty-one (21)' exclusively Hyde land? The defendants claim the amount of such rotten timber to be 260,000 feet. As to rotten timber matter, I find for plaintiff.</p> <p>’’Seventeenth. As between the bank, Welcome Hyde, and the Paulding Lumber Company, how should this account be stated ? (As per statement to be filed, with the original copy ■of these questions.)</p> <p>“May 9, 1901. Chas. M. Webb, Judge.</p> <p>“The report of tlie referee is confirmed so far as it is not inconsistent with these findings. The statement of account between the German National Bank and the Paulding Lumber Company stands as stated by the referee. . . .</p> <p>“The defendant the German National Bank asks the following findings, which axe approved and adopted accordingly: That there was cut and logged from lands, under contracts ■A’ and CB,’ 2,781,316 feet of logs, of which amount 2,000,624 feet of logs belonged to the defendant the Paulding Lumber Company, and 780,692 feet to the plaintiff, Welcome Hyde. There was realized from the sale of these logs after they were manufactured into lumber the sum of $29,816.68, of which said amount the defendant the German National Bank received $29,606.68, and the plaintiff, Welcome Hyde, received $210.09. Of the said sum of $29,816.68, the share of the defendant the Paulding Lumber Company is $20,139.65, and of the plaintiff, Welcome Hyde, $9,677.12.</p> <p>“Conclusions of law: (1) The first lien upon the funds in the hands of the German National Bank, arising from the sale of Paulding Lumber Company lumber, is a lien in favor of said bank for the amount of its advances, to protect the property by payment of lien claims and taxes, being, as found by-the referee, $1,751.91; second, the claim of Welcome Hyde for taxes paid to protect this property, $100; third, the claim of Welcome Hyde for the amount of the purchase price under contract B, $9,000, with interest from the date of said contract at seven per cent, per annum; fourth, the claim of the German National Bank of Oshkosh for advances made by it to the Paulding Lumber Company to carry on the lumber business under its contract with the Paulding Lumber Company, of $24,091.65 and interest; fifth, the balance due Welcome Hyde for advances made by him to> the Paulding Lumber Company pursuant to. his contract of March 1, 1894. (2) That plaintiff, Welcome Hyde, have judgment against the German National Bank and J. H. Jenkins that they surrender to Welcome Hyde his notes to the German National Bank and to J. FI. Jenkins and to 1ST. B. Bradley, described in finding 4 on the first trial. (3) That plaintiff, Welcome Hyde, have and recover of and from the German National Bank of Oshkosh the sum of $13,762.77. (4) That the plaintiff, Welcome Hyde, recover of the defendant the German National Bank of Oshkosh his costs in this action. (5) If it were material to the accounting and produced any different result, the account respecting logs cut by Porter should be independent of the other accounting, and the bank should be allowed a first lien on the lumber cut from such logs for its expenses in cutting the same,' provided such expenses did not reduce the net proceeds of such lumber belo-w the fair stump-age value of same; but, inasmuch as such separate accounting would not produce any different result, such separate accounting and statement is omitted.</p> <p>“ The defendant the German National Banlc asked the following conclusion of law. The same is approved and signed accordingly: That the balance in the hands of the bank, after paying amount found due Hyde, should be applied upon the indebtedness due to the bank from Paulding Lumber Cbm-pany.”</p> <p>In the statement of the account between the plaintiff and the bank the court found that on October 24, 1894, the bank received, as the proceeds of sale of the lumber sold, $17,440.02. Prom this sum he deducted the cost of loading, etc., $856.24, and liens paid, $1,394.53, leaving net balance, $15,189.25. Of this amount, forty-seven per cent., or $7,138.94, was derived from logs cut on plaintiff’s land. On October 24, 1894, there was due the bank on plaintiff’s notes $8,896.87. The bank should apply the proceeds of the plaintiff’s lumber and enough from the proceeds of the Paulding Lumber Company lumber, $1,757.93, to pay said notes, leaving in its hands the sum of $6,292.38. The court further found that the bank received from the cut of 1894, from the proceeds of 108,000 feet of logs cut on plaintiff’s lands, and from sawing of 1895, which, with interest to May 24, 1902, left in the hands of the bank $23,695.46. Against this the court allowed plaintiff’s claim of $9,000 and interest due him from the Paulding Lumber Company; also for the proceeds of logs cut from his lands; and the sum of $100 and interest, $39,50, for taxes paid on the Paulding Lumber Company sawmill. He deducted $170 for taxes paid by the bank on</p> <p>plaintiff’s lumber. The total of plaintiff’s claim, with, the allowance and deduction stated, was $13,/762.YJ.</p> <p>Many exceptions were filed by the defendants. Judgment was entered as directed in the findings, from which the defendant bank has taken this appeal.</p>

This is an action of ejectment, commenced Eebruary 28, 1900, to recover possession of tbe undivided one-balf of eighty acres of land, described, to which the plaintiff claims title by descent from her father, Christian Larson, who died in Chicago, Eebruary 14, 1895.

The plaintiffs are husband and wife, and the defendant Herman is their son. In October, 1897, and for many years before that time, the plaintiff Benjamin owned and occupied as a homestead eighty acres of land in Shawano county.

<p>Appeal from a judgment of the circuit court for Lang-lade county: JohN GoodlaNB, Circuit Judge.</p> <p>Action for damages, caused, as alleged, to Wenzl First by the wrongful conduct of defendant in that its servants negligently operated one of its locomotive engines so as to produce his wife’s death. The deceased attempted to cross defendant’s railway track at the intersection thereof with one of the public streets of the city of Antigo in the nighttime, while one of its switch engines was rapidly approaching such locality. She was struck by the engine and so injured that she died.</p> <p>The particular acts of omission and commission constituting the alleged negligence are as follows: Operating the engine at an unlawful rate of speed; neglect to ring the engine bell as the approach was made to the railway crossing; failure to have a watchman or flagman at the crossing as required by the city ordinances of the city of Antigo; failure to maintain gates at the crossing as required by the city; and failure to give any notice to persons, about to use the crossing for legitimate purposes, of the approach thereto of the switch engine. All the allegations of negligence were put in issue by the answer, and contributory negligence was pleaded as a defense.</p> <p>The undisputed evidence was to the following effect: The accident happened on a dark, rather stormy night. There was no street light at the crossing. The situation was such that, as a person approached the crossing from the east, as the deceased did on the occasion of the accident, there was no obstruction to prevent her seeing an engine coming from the north for a distance amply sufficient to enable her, in the ex•ercise of ordinary care, to avoid being injured by it. The railway tracks ran north and south. The depot was just-south of the street, which crossed the tracks at right angles,, and upon which deceased was walking when she was injured. Prior to the injury she was at the depot with two- acquaintances, a man and his mother, presumably to meet a person who was expected soon to arrive on a train from the south. She remained on the depot platform till the train arrived and such person alighted therefrom. The four then started north on the platform, walking on the easterly side of the main, track till they were within the limits of the street. The engine of the passenger train was located across the sidewalk on-the southerly side of the street. West of the main track was a switch track. A headlight was on the passenger engine. It threw its light across the region common to the street and the railway track. The deceased and her companions, desiring to go to a point west of the tracks, passed into the street and them somewhat northwesterly so as to avoid the passenger engine. Two of deceased’s companions proceeded first. She, accompanied by the other, walked a little way behind them. The former got across the switch track, and just as the latter-stepped upon it the switch engine, backing up from the north, struck her, inflicting fatal injuries.</p> <p>The substance of the evidence material to be considered, in addition to such as has been referred to in a general way, is as-follows: John McArthur, a witness for plaintiff, said he did not see any light on the rear end of the switch engine; that it was backing up when it struck deceased; that he could not say but that there was a light on the engine; that just before the accident he was on the depot platform near the passenger engine and heard the switch engine coming. Peter Jagla, a witness for plaintiff, said he was one of the party accompanying the deceased at the time of her injury; that he and his sister went ahead while his mother accompanied the deceased ;■ that he hurried up to get across the track ahead of the switch engine; that the engine on the passenger train made some-. noise; that be saw tbe switch engine just as be got on tbe track; tbat be bad to jump to get across; tbat be did not see any light on tbe engine, nor bear any bell; tbat be made a written statement of tbe circumstances characterizing tbe accident shortly after it occurred, in which be said tbat be beard a bell upon tbe engine and saw tbe engine coming about tbe time be crossed tbe track. Tbe woman who was in tbe immediate company of tbe deceased at tbe instant of tbe accident said she did not see any light on tbe engine nor bear any engine bell; tbat she and deceased were about forty feet behind her son and daughter; that she saw they got across and thought she and her companion could too; tbat she did not see tbe engine. Another witness called for plaintiff said be was near tbe passenger engine at the time of tbe accident; 'that be beard tbe switch engine approaching tbe crossing. John Gaff-ney, another witness for plaintiff, said be saw tbe switch engine approaching tbe crossing, and beard it; tbat be was on tbe passenger engine; that there was a light on tbe switch engine and tbat tbe bell was ringing as it approached. Tbe evidence on defendant’s part fully corroborated tbat of tbe last witness. It was further to tbe effect tbat deceased and her companion, as they approached tbe crossing, did not pay attention to whether an engine was approaching, and tbat one of tbe trainmen who was on tbe footboard of tbe tender and bad a light in bis band, grabbed bold of and tried to save them.</p> <p>At tbe close of the evidence tbe court directed a verdict in defendant’s favor, upon which tbe judgment appealed from was rendered.</p> <p>Chicago & H. I. H. Co. v. Chancellor, 60 Ill. App1. 625. A person who comes upon a railroad platform to welcome or speed a parting guest is there by authority of the company, as much as a passenger. Qillis v. Pennsylvania B. Go. 59 Pa. St. 129, 98 Am. Dec. 317; McKone v. M. O. B. Go. 51 Mich. 601, 47 Am. Kepi 596; Doss v. M., K. & T. B. Go. 59 Mo. 27, 21 Am. Kepi 371; Dowd v. G., M. & Si. P. B. Go. 84 Wis. 114, and cases cited. A railway company owes the public a duty to provide for a safe place to get to and from its depot. A passenger or a passenger’s friend comes on the depot ground of a railway company by an invitation of the company. Dowd v. G., M. & St. P. B. Go. 84 Wis. 105, 114; Patten v. G. & N. W. B. Go. 32 Wis. 524. A passenger or an intending passengef going to take a train, or leaving a train, has a right to presume that the track will be kept clear in order to enable him to reach the station or the train or get away from the station in safety. Baltimore & O. B. Go. v. Maryland, 60 Md. 449; Gaynor v. 0. O. & N. B. Go. 100 Mass. 208; Klein v. Jewett, 26 N. J. Eq. 474; Brassell v. N. Y. G. & H. B. B. Go. 84 N. T. 241; Chesapeake & O. B. Go. v. King, 99 Fed. 251, 40 O. 0. A. 432. The rule requiring a traveler on a highway, crossing a railroad track, to use his eyes and ears to ascertain whether a train is approaching, does not apply to passengers who are crossing a track at a station to get on a train, or leaving a train. Such a passenger is not guilty of contributory negligence in failing to look and listen before crossing the other tracks. 'Terry v. Jewett, 78 N. T. 338; Beecher v. L. I. B. Go. 161 N. Y. 222, 55 N. E. 899; Brassell v. N. Y. G. & H. B. B. Go. 84 N. Y. 241; Chicago O. B. Go. v. Bobinson, 127 Ill. 1; Chesapeake & O. B. Go. v. King, 99 Fed. 251, 40 O. C. A. 432; Chicago, M. & St. P. B. Go. v. Lowell, 151 U. S. 209; Warner v. B. & 0. B. Go. 168 U. S. 339; Graven v. MacLeod, 35 O. O. A. 47, 92 Fed. 846; Alabama G. S. B. Go. v. Coggins, 32 O. O. A. 1, 88 Fed. 455; Cincinnati Si. B. Go. v. Snell, 54 Ohio St. 197, 43 N. E. 207; Philadelphia, W. & B. B. Go. v. Anderson, 72 Md. 519, 8 L. K. A. 673; St. Louis & S. W. B. Go. v. Johnson, 59 Ark. 122, 26 S’. W. 593; Pennsylvania Go-, v. Mc-Caffrey, 173 Ill. 169, 50 N. E. 713; Burnham v. W. W. B. Go. 91 .Mick 533, 52 N. W. 14.</p>

<p> Ejectment: New trial: Equitable counterclaim: Undertaking: Justification of sxireties: Payment of costs: Interest. </p> <p>1. Interposition oí an,equitable counterclaim in an action of ejectment — as for specific performance of a contract to convey tlie land — does not make a new or separate action in wliicli the right to a new trial under sec. 3092, Stats. 1898, does not exist. That statute secures to the defeated party in ejectment a right to a second trial of all the issues disposed of hy the judgment, whether they were legal or equitable.</p> <p>'2. The fact that the undertaking for payment of costs and damages under sec. 3092, Stats. 1898, was conditioned upon the granting of a new trial upon all the issues involved, did not lessen the obligation to pay when the new trial was in fact granted, and did not render the undertaking insufficient.</p> <p>5. Justification of the sureties on such undertaking in conformity with sec. 2704, Stats. 1898, is sufficient.</p> <p>4. “All costs recovered” by the judgment, payment of which is, by sec. 3092, Stats. 1898, made a condition of the granting of a new trial thereunder, means the face of the costs only, without interest.</p>

Tbe plaintiff sued before a justice of the peace of Outa-^gamie county upon a balance of an account for medical services of $33.11.

Williams, Judge. The appellants, who are heirs at law of Albert O. Krueger, deceased, here appeal from the same judgment which was considered and reversed by this court upon the appeal of the plaintiff, Charles Ledebuhr, on January 7, 1902, reported 112 Wis. 657, 88 N. W. 607. The question was as to the rights of three distinct parties in an insurance fund which had been voluntarily paid into court by the Grand Grove of Wisconsin of the Order of Druids.

<p>Appeal from a judgment of the circuit court for Langlade county: JoiiN GoodlaNd, Circuit Judge.</p> <p>This is an action for damages for the alleged breach of a logging contract in writing entered into October 11, 1899, by and between the plaintiffs, who were partners and the owners of a sawmill at Deerbrook, Langlade county, Wisconsin, and the defendants, who were doing business under the firm name mentioned at Chicago, whereby the plaintiffs agreed to manufacture into lumber, pile and deliver on the cars at their sawmill, all the saw logs that might be purchased and delivered at their mill by the'defendants or their agents during the winter of 1899-1900, which should not be less than 4,000,000 feet, at $3.50 per 1,000 feet, log scale, for all birch, elm, maple, oak, ash, and cherry, and $3 per 1,000 feet for all hemlock, basswood, and pine; that, if the defendants failed to deliver the 4,000,000 feet, then they should pay to the plaintiffs for that amount at the prices named; that the price for sawing and piling ties should be six cents each; and provided that all lumber was to be sawed into thicknesses, etc., as the det-fendants might require from time to time, and to be evenly manufactured in a good and workmanlike manner, trimmed to uniform lengths, and properly cross-piled, as fast as sawed, on good foundations, as directed, and all piles covered with cull lumber as fast as completed, and loaded on cars when required by the def ©ndafits, — all to be shipped prior to January 1, 1901. And it was therein further agreed and understood that the plaintiffs should “not purchase any hardwood logs for themselves or for any individual, firm, or corporation, except as directed by the” defendants “or their agents; nor saw hardwood logs or manufacture hardwood lumber for any firm, individual, of corporation without the consent of the” defendants; and “that all saw logs put in during the time above mentioned from the lands of the” defendants, known as the “McITale Lands,” should “be delivered to the sawmill yard of the” plaintiffs; that the plaintiffs should “commence sawing as soon as a sufficient amount of logs” should be “delivered on their mill yard to keep the mill running, and continue thereafter, as far as practicable, until all logs” should be sawed as above specified. It was therein further agreed that an option was thereby given to the defendants by the plaintiffs for the continuation of such contract for the winters of 1900 and 1901, but that such option should be accepted by the defendants in writing before July 1, 1900; that the plaintiffs should have all the slabs necessary for fuel, and the balance should be piled and loaded by the plaintiffs, and, if shipped by the defendants before October 1, 1900, the sum of fifty cents per cord should be paid to the plaintiffs when loaded on the cars,- — all slabs to be four feet long, and all slabs remaining on the yard after October 1, 1900, should become the property of the plaintiffs. The defendants therein agreed to pay on the 15th of each month, at prices thereinbefore mentioned, for all lumber sawed the previous month, less the sum of fifty cents per 1,000 feet, which amount should become due and be paid on the 15th day of each month for all lumber loaded on the cars the previous month; and it was therein understood and agreed that, should the sawmill of the plaint-ilis burn dotvn or be otherwise destroyed, the mill was to be rebuilt, or arrangements made at their expense .for sawing and manufacturing the lumber as thereinbefore mentioned at some other point, according to the contract.</p> <p>The complaint, as amended, alleged two causes of action. The first is to recover $1,204.89, due for the manufacture of lumber which had been actually delivered according to the terms of the contract; which cause of action was practically abandoned on the trial, and dismissed in the judgment. The second cause of action is to recover damages for failure to deliver 1,963,004 feet of the logs so agreed to be delivered. The defendants answered by way of admissions, denials, and counter allegations to the effect that the lumber was not manufactured by the plaintiffs in a good, workmanlike manner,, and that it was not of the proper thickness according to the terms of the contract; that according to the terms of the contract the plaintiffs -were not to saw any hardwood logs for any firm or corporation without the consent of the defendants, and the defendants were to have the exclusive use of the plaintiffs’ mill for sawing timber; that the plaintiffs did saw hardwood logs for other persons, without the consent of the defendants, and did also compete with the defendants in the purchase of saw logs to be sawed, — all of which was in violation of the terms of the contract; and claimed damages by way of counterclaim for such failure to manufacture the lumber in a good and workmanlike manner, as agreed in the contract. The answer admitted the failure of the defendants to deliver the 1,963,004 feet, as alleged, and justified the same on the ground of such breaches of contract on the part of the plaintiffs. The plaintiffs took issue with the counterclaim by way of reply.</p> <p>At the close of the trial the jury returned a special verdict, to the effect: (1) That the logs delivered by the defendants to the plaintiffs were sawed by the plaintiffs in a good and workmanlike manner, (2) in accordance with the directions given to them by the defendants; (3) that the lumber sawed by the plaintiffs for the defendants under the contract was properly piled by the plaintiffs; (4) that such lumber was piled by the plaintiffs in accordance with directions given to them by the defendants; (5) that during the season of 1899 — 1900 the plaintiffs did saw at their mill hardwood logs for other persons than the defendants, (6) but that the defendants gave their consent to such sawing for such other persons; (7) that during the season of 1899-1900 the plaintiffs did not buy hardwood logs for themselves or other persons than the defendants; (9) that the cost of sawing, piling, and loading hardwood lumber at the mill of the plaintiffs during the season of 1900 was $2 per 1,000; (10) that seventy-five per cent, of the logs which the defendants so failed to deliver to the plaintiffs would have been of the kinds for which the plaintiffs were entitled to receive $3 per 1,000 feet for sawing, piling, and loading; and (11) twenty-five per cent, thereof was of the kinds for which the plaintiffs were entitled to receive $3.50 per 1,000 feet for sawing, piling, and loading.</p> <p>Upon such special verdict judgment was ordered by the court and entered in favor of the plaintiffs for $2,412.27 damages and $184.71 costs. Erom the judgment so entered the defendants appeal.</p>

<p> Fraudulent representations as to title to land: Contracts: Rescission: Offer to return property received: Parol evidence. </p> <p>1. A direct representation made by one man to another that he has a fee title to certain land is not necessarily a mere opinion upon a question of law. If intended and understood as a representation of a fact, and relied upon to the damage of the other party, it becomes an actionable fraud.</p> <p>2. In an action to recover a balance alleged to be due for logs, defendant alleged that plaintiffs had contracted to deliver the logs from certain land, falsely representing that they had title thereto, and that after receiving and partially paying for the logs, defendant had been obliged to pay a large sum of money to the rightful owner in settlement of the trespass. Held, that defendant need not offer to return the logs received before it could defend on the ground of fraud or counterclaim damages on account of the fraud.</p> <p>3. Where fraudulent representations have been relied upon in the mating of a written contract, or the writing itself does not contain the entire agreement, parol evidence is admissible to show , the facts.</p>

Action to foreclose a mortgage. The complaint is in the usual form. The mortgage is in the form of a trust deed. It was given to the plaintiff as trustee to secure the payment of the principal of and interest on seventy-five $1,000 bonds, sixty-three of which were issued and fifty-eight of which were outstanding at the time of the commencement of the action. The mortgage or trust deed, among others, covered lands having appurtenant thereto an improved water power.

Aupeau from a judgment of tbe circuit court for Outa-gamie county: JohN GoodlaNT), Circuit Judge. This action was commenced in justice’s court. Tbe plaintiff’s complaint was as follows: “That on or about the 30tb day of June, 1900, one certain Celia Wessie was in the employ of the plain-tiff for a certain period of time.

J. Vinje, Circuit Judge. In and prior to the year 1891, the plaintiff was the owner of a considerable tract of land in Douglas county, Wisconsin. Upon a certain ten acres thereof adjoining the line of the Northern Pacific Railroad, plaintiff, together with Henry Oberg, as copartners, owned a sawmill and blacksmith shop', lumber yard, lumber, and tools.

J. Yibtje, Circuit Judge. It appears from the record that July 8, 1899, the plaintiff filed with the city clerk a claim against the city for $253.02 and interest thereon from September 24, 1895, for failure to collect from the property assessed, or the owners thereof, the amount1 of the four several sewer construction certificates dated on the day and year last named, and issued by the city on that day to A. Johnson & Co., contractors, on four several lots, described,…

Smith, Judge. This was a consolidated action to recover upon a number of fire insurance policies. The plaintiff owned and operated a linseed oil mill at Grand Forks, North Dakota. On the 31st of May, 1901, the mill was destroyed by fire. At that time the mill and its contents were insured in fourteen different insurance companies, the aggregate of such insurance amounting to more than $24,000.

Smith, Judge. The defendant haying, through the intermediation of the plaintiff, obtained from on© Lovejoy an option to purchase the timber upon certain landsi for $15,500, on September 18, 1901, executed to* it a written agreement reciting such option, and agreeing “that, in case of an acceptance of said option and sale of said timber, the said Warren B. McCord hereby agrees to give the said Rogers-Ruger Company one half of the profits of such sale over and above the…

Tbe complaint sets out that plaintiff is a corporation. Prior to April 10, 1899, plaintiff became the owner of certain time checks amounting to $5,079.02, issued by J. W. Howes Company to divers persons for work done by them for said firm during the logging season of 1898-99, in cutting logs and manufacturing the same into lumber. At the same time such persons assigned their claims for a lien upon the logs and timber to plaintiff.

J. Votje, Circuit Judge. Action upon a fire insurance policy. The insurance contract was in the form of the standard policy required by the laws of this state. It contained this provision: “This entire policy . . . shall be void ... if' the interest of the insured be other than unconditional and sole ownership.” The fact was, as shown in the complaint, that such interest was that of a vendee under a land contract.

<p>Appeal from an order of the circuit court for Polk county: A. T. YiNje, Circuit Judge.</p> <p>Action for specific performance. The complaint, by appropriate allegations, »set forth the following: Daniel E. Smith, a married man living separate and apart from his wife, and the owner of a homestead in this state upon which he resided, in 1892, for a valuable consideration, in form by warranty deed, conveyed such homestead to Henry B. Dike and plaintiff. Smith’s wife refused to join in the deed. .Subsequently they died, he surviving her about two years. Before the commencement of this action Dike conveyed his interest in the land to plaintiff. Smith loft surviving him but one child, the person named as defendant. The deed, though void as a conveyance of the legal title, was good as a contract to convey after the extinguishment of the homestead right of the grantor and his wife. Such homestead right was extinguished by their death, and the legal title to the land became vested in the defendant, in trust, however, for the equitable owner, under the deed/ The prayer of the complaint was, in effect, for a decree declaring the deed good as an agreement to convey upon the extinguishment of the homestead right; that such right was extinguished by the death of Smith and his. wife; that plaintiff was entitled to have the contract specifically performed by a conveyance from defendant, and to a decree requiring the making of such conveyance accordingly.</p> <p>Defendant interposed a general demurrer to the complaint, which was sustained, and plaintiff appealed.</p>

<p> Husband and wife: Fraudulent conveyance: Consideration: Equity: Exhaustion of legal remedies: Judgment: Parties personally liable: Realty and personalty: Order of application. </p> <p>1. The withdrawal hy the wife of her action for a divorce, or her consent to continue the marital relation, is not such a consideration as will give validity, as against the husband’s creditors, to a transfer of his property to her.</p> <p>2. Return upon execution that no property of the debtor can be found establishes prima facie the exhaustion of legal remedies, and its effect is not overcome by showing that he has an interest in some real estate, without proof as to its value.</p> <p>3. In a proceeding by judgment creditors to subject to their claims the debtor’s interest in his father’s estate, which he had transferred to kis wife, it was error to render a personal judgment against tke wife and tke administrator of said estate for tke amount of tke claims, for wkick tkey kad never become in any way personally liable.</p> <p>4. In suck proceeding tke debtor’s interest in real estate should first be subjected to tke plaintiffs’ claims, to tke exoneration of tke personalty in tke administrator’s kands, claimed by others; but error in adjudging that tke personalty be first applied is immaterial, where both personalty and realty together are insufficient.</p>

<p> Bills and notes: negotiability: Transfer: Authority of officer of corporation. </p> <p>1. Laws of 1899, ch. 356, sec. 1675 — 5, suM. 2, provides that the negotiability of an instrument is not affected by a provision which authorizes a confession of judgment if the instrument he not paid at maturity. Held, that a note authorizing confession of judgment at any time after its date, whether due or not, is not negotiable.</p> <p>2. S., the treasurer of the plaintiff corporation, loaned moneys thereof, taking a note payable to the order of “S., Treas., or his successor,” secured by a real-estate mortgage to “S., Treas., or his successor in office, of the” corporation, naming it. After-wards, without authority, S. sold and delivered the note and mortgage to defendant, a part of the consideration being the discharge of a personal debt, and converted the money received to bis own use. Held, that the instruments and the circumstances were such as to put defendant upon inquiry as to tbo authority of S., and that he obtained no title to the note and mortgage.</p>

<p> Wills: Construction: Life estate with power of sale: “Legacies.” </p> <p>1. A will gave to the testator’s wife all his property “to sell and dispose of as shall to her seem fit and proper, or to retain during her natural life for her own use, subject, after her decease, to the following legacies.” Certain shares of stock were then given to a niece “and to each of her surviving sons and daughters,” “to be by them held for the income thereof.” Other bequests followed, and a life estate was given in certain real estate, with a devise-over in fee. A residuary clause disposed of the remainder of the estate, after the death of the wife. Held, that the will did not give to the widow an absolute estate in any of the property, but gave her the use and income of the whole thereof, both real and personal, with full power of sale, the proceeds of any sale to be preserved for the benefit of the other beneficiaries, none of whom, however, was to take in possession until after her death.</p> <p>2. The word “legacies,” as used in said will, is construed to include all the gifts therein following that to the wife, whether of real or of personal property.</p>

<p>Appeal from a judgment of the circuit court for Rock county: B. E. DuNwiddie, Circuit Judge.</p> <p>Patrick Noon, of Rock county, Wisconsin, died at his home on November 17, 1899. On March 7, 1895, he had a will drawn and duly executed, disposing of his property. On March 18, 1896, he executed a codicil to his will, and then left the same with the county judge of Rock county. At that time he had two daughters, Maury Flynn and Katherine Bangdon, his only heirs at law. July 17, 1897, Katherine died, leaving a son, William, and three daughters, besides her husband. March 4, 1898, Mr. Noon withdrew said will from the custody of the county judge, and later in that month employed an attorney, Mr. Burr Sprague, residing at Brod-head, Wisconsin, to draw a new will. After some consultation and several visits to Mr. Sprague’s office, such new will was drawn, duly executed and witnessed, and was'taken away by the testator. Such will contained a clause revoking all former wills. April 1, 1898, he left a package with the county judge, which, after his death, was oj>ened, and found to be the will first above mentioned. The second will was never discovered.</p> <p>After Mr. Noon’s death the will found in the possession of the county judge was offered for probate by R. B. Harper, the executor named therein. Guardians ad litem were duly appointed for the infants interested, and after a hearing duly had the county court made findings of the facts substantially as heretofore stated, and, in addition, that when the deceased refiled said will with the county judge it was his intention to revive the same as his last will, but that after the execution and publication of the second mil there had been no republication of said first will, and that it had never been revived. Probate of said will was therefore denied.</p> <p>The executor then, took an appeal to the circuit court. The findings on the trial in the circuit court are substantially the same as the court below, except that the court found that said second will was drawn with the intention that it should ref-main as and for his last will, but by some mistake or oversight-the deceased took and left the first will with the county judge, instead of the second will, and that the will so left with said judge was not left with intent to revive the same, or with intent that it should remain his last will. Probate of said will was again denied, and judgment to that effect entered. The infants William Langdon and William and Esther Flynn, by their guardian ad litem, appeal to this court.</p> <p>argued, among other things, that when a testator duly executes a valid will, and later executes another will, which contains a clause revoking the first will, but preserves both wills, and then destroys the second and evidences his intention to die testate by keeping the first and preserving it as his will, or does acts which show that he intended to make it his will, then the first will is entitled to probate. Sehouler, Wills, §§ 413-415; 1 Eedfield, Wills, 308, 309, 375; Cassoday, Wills, § 344; Will iams v. Williams, 142 Mass. 515; Pickens v. Davis, 134 Mass. 252; Gould’s Will, 72 Yt. 316, 47 Atl. 1082; Woemer, Adm. (2d ed.) § 51; McGlure v. McClure, 86 T'enn. 173, 6 S. W. 44. In Wisconsin, publication of a will is not necessary. Oassoday, Wills, § 153; Allen v. Griffin, 69 Wis. 529. There is a presumption that the deceased destroyed his second will with the intention of revoking it. In re Steirilce’s Will, 95 Wis. 121; Linginfeíter v. Linginfeiler, 1 Hardin (Ky.) 119; Flintham v. Bradford, 10 Pa. St. 82; Marsh v. Marsh, 3 Jones’ Law (N. C.) 77; Randall v. Beatty, 31 N. J. Eq. 643.</p>

<p>Appeal from a judgment of tbe circuit court for Kock county: B. E. DuNwiddie, Circuit Judge.</p> <p>In 1869 one E. 0. Eeigart died testate in Pennsylvania, leaving a large estate both, in Pennsylvania and in Wisconsin, which, in the latter state especially, consisted largely of real estate. His will attempted, in addition to certain special donations, to divide his estate amongst his seven children, the method adopted being to devise specified lands for the benefit of each child, apparently in each case already occupying those lands, and to fix a value upon such specific lands, to be charged against the child as a part of his or her one-seventh of the estate. Such devise of lands in each instance was attempted to be made not directly to the beneficiary, but to some other persons in trust for the beneficiary for life, and for his or her descendants upon his or her death, with provision as to some of the children for a further remainder to heirs of the testator upon failure of issue. Amongst these several devises is No. 14, specially involved in the present action, which was in the following words:</p> <p>“The following described four tracts of land and premises, lying contiguous in the town of Turtle, Kock county, state of Wisconsin, to wit, ... I give and devise to my sons James H. Eeigart and John Eeigart, and to their heirs and assigns, in trust, however, for the use of my before-mentioned daughter, Annie 0. Slaymaker, for and during the term of her natural life, and at her decease in trust for the use of all the children of the said Annie O. Slaymaker then living, and the issue and descendants of any of them being then dead, their heirs and assigns, forever, per stirpes, in equal shares and parts, subject, however, to the payment of five hundred dollars annually to the husband of said Annie 0., if sbe leave one surviving her, during tbe time be shall remain unmarried; and in default of any child, children, or descendants of my said daughter, Annie O. Slaymaker, living at her decease, then in trust for the use of my heirs at law, now or then resident in the said state of Wisconsin, in fee, subject as aforesaid; and I charge the said real estate so devised in trust for her use, etc., to my said daughter, Annie C. Slaymaker, at and for the sum of eighteen thousand dollars, to be accounted for in the distribution of my estate.”</p> <p>After thus defining the rights of the several devisees, direction is given in several paragraphs for the sale, either by executors or trustees, of certain pieces of real estate, and then comes paragraph 21, in the following language:</p> <p>“If any of my children shall deem it advantageous to have the real estate hereinbefore devised in trust for their use severally during life sold, and shall request the trustee or trustees who hold the same to sell it, then I order and direct the trustee or trustees to sell and dispose of the same, or any part thereof, and convey it to the purchaser or purchasers, his and their heirs and assigns, in fee simple, clear, free, and discharged from the trust, and to hold the proceeds of the sale thereof, or invest the same in the purchase of other real estate in any of the states or territories of the United States of North America, wherever the cestui que trust shall desire it, and take and hold the same in trust for the same uses and purposes as the premises sold were held under this will.”</p> <p>In June, 1871, at the request of Annie O. Slaymaker, the trustees named in the fourteenth paragraph of the will in form sold and conveyed the real estate named in that paragraph to one Magraw for the expressed consideration of $18,000, which was paid, $15,000 thereof by a mortgage upon the same land, securing notes of Annie O. Slaymaker and her husband, payable twenty-five years after date, with two per cent, interest; said notes being payable to said Mag-raw, and by him indorsed without recourse to the trustees. The further consideration was paid by notes of said Annie O. Slaymaker and her husband for $3,000, secured by mortgage upon other property, never recorded, but which have been by the trustees marked “Canceled,” and delivered up. The deed to Magraw declared that it was made in pursuance of the power of sale in trust contained in E. C. Eeigart’s will, and contained full covenants of warranty, and that it was made in pursuance of the request of Annie C. Slaymaker, who, in evidence thereof, joined therein. In February, 1872, Magraw executed and delivered conveyance of the same lands to Annie 0. Slaymaker and her husband for the expressed consideration of $18,000, which deed was recorded in August, 1875.</p> <p>Samuel IT. Slaymaker, husband of Annie C., died in the year 1882, childless, and by will devised all his property to her. Thereafter she married the appellant, George 0. Yeiser, who was her husband at the time of her death, which occurred in March, 1900, she leaving no children or descendants, and by will bequeathing and devising all her property to her husband, the appellant. In 1885 the trustees, James H. and John Eeigart, were removed from their trust, and H. H. MeLenegan, one of the defendants, was appointed in their place. The plaintiffs are certain of the children and certain children of deceased children of the original testator, other of his heirs at law being joined as defendants. The complaint denies the validity of the trust; denies any authority in the trustees to make the sale in question; contends that, if such power existed, the sale was collusive and intended merely to transfer the legal title to the life tenants, in fraud of the purposes of the will and the rights of the remaindermen; prays construction of the will, the avoiding of that conveyance, and the reclamation of the specified real estate to the existing heirs at law of E. O. Eeigart.</p> <p>The court found that said testator left surviving seven children, who were all of his heirs at law. Of these, one never resided in Wisconsin. All of the others did reside there, either at the time of the testator’s death or of Annie 0. Slaymaker’s. That certain of said children had in the interval died, each of them leaving descendants, some of whom resided in the state of Wisconsin at the time of Annie O. Slay-maker’s death, and some did not. The court further found the execution of the deed to Magraw above mentioned, and the delivery to the trustees of the notes and mortgage therefor ; also the conveyance by Magraw to the Slaymakers; that Magraw paid no consideration for the conveyance, since he assumed no liability for the Slaymakers’ notes; that no part of the consideration expressed in the deed from Magraw to the Slaymakers was ever paid by them, or ever intended to be-paid; and further found that these conveyances “were not made in good faith, and as a tona fide exercise of the power of sale contained in the said will of the said Emanuel C. Keigart, but were, and each and all of them were, made for the sole purpose of vesting the legal title to said lands in the-said Samuel IT. Slaymaker and Annie O. Slaymaker, and divesting the interest of the heirs at law of the said Emanuel 0. Keigart.” It was also found that the sum of $18,000 was-a fair and adequate consideration for the deeded premises; that ever since 1872 Annie O. Slaymaker, with her successive husbands, and since her death the appellant, Yeiser, have been in absolute and exclusive possession and control of said real estate, and have made extensive and valuable improvements on the premises.</p> <p>The court adjudged the conveyances to Magraw and from-him to Annie O. Slaymaker and husband invalid and void, and that the premises now belong to the descendants of E. C. Reigart in defined proportions, excluding the appellant, Yeiser, from any interest therein; directed that Yeiser execute deed of all his interest, and that thereupon the $15,000' notes and mortgage be canceled and destroyed. Certain other-portions of the judgment are not recited, for the reason that they are not attacked on this appeal. From the portions mentioned George 0. Yeiser brings this appeal.</p>

<p> Conversion: Possession: Attorneys at law. </p> <p>Plaintiff drew on a debtor through a bank for the value of eighty-five cases of eggs. The draft not being paid, the bank delivered it to attorneys for collection, with directions to take such steps as they would if the matter were their own. The attorneys could not collect the amount of the draft and found that the eggs had been disposed of, but obtained from the debtor a bill of sale to them of eighty-five other cases of eggs which were then on the cars ready for shipment, on condition that they would allow the eggs to go forward to the original consignee. This arrangement was approved by the bank. The debtor was insolvent, and the consignee disposed of the eggs and absconded without paying therefor. Held, that the attorneys, not having had pos- » session of the eggs shipped by plaintiff, nor of the eggs they tried to get in lieu thereof, were not liable for conversion.</p>

Eeboe to review a judgment of the circuit court for Crawford county: George QlemeNtsoN, Circuit Judge.

<p>Appeal from a judgment of tbe superior court of Douglas county: Oi-ias. Smith, Judge.</p> <p>This action was commenced August 21, 1901, to recover damages for the alleged negligent killing of the plaintiff’s intestate July 7, 1900. The complaint alleges, in effect, that prior to July 6, 1900, the deceased was in the employ of the defendant as a teamster; that on that day the defendant put bim to work unloading logs, wbicb were brought from the woods and hauled on cars by an engine to the mill of the de-fendánt; that on the following day the deceased was engaged in unloading such logs, and while in the act of so doing he fell into a hole about two feet deep, and before he could get up the logs rolled against and over him, injuring him so that he died from the effects thereof on the same day; that for three months prior to the accident the hole had been there, and its existence was well known to the defendant and its servants; that there was slippery bark around the hole into which the deceased stepped; that it was the duty of the defendant to furnish the deceased with a reasonably safe place to work, and that the defendant was negligent in failing to do so, and that it was also negligent in failing to inform the deceased that the place was dangerous and unsafe. The complaint also alleges</p> <p>“that plaintiff’s intestate at the time of his death was an unmarried man, thirty-six years of age, and left, him surviving, his mother as next of kin, who was entirely dependent upon him for her support; that plaintiff’s intestate at and prior to said injury was a strong, healthy, able-bodied, industrious man, earning and capable of earning fifty dollars per month; that for many years prior to his death he was continuously employed, and, but for his death, he would have, out. of his earnings, provided for the support of his mother during the remainder of her life; that by reason of the aforesaid plaintiff has sustained damages in the sum of $2,000.”</p> <p>The defendant answered by way of admissions, denials, and counter allegations, and among others that the plaintiff was injured by, through, and on account of his own negligence or-the negligence of his fellow-servants.</p> <p>At the close of the testimony on the part of the plaintiff the court granted a nonsuit, and dismissed the complaint, with costs. From the judgment entered thereon accordingly, the. plaintiff appeals.</p>

<p> Municipal corporations: Street improvements: Power to issue general bonds: Estoppel: Ratification. </p> <p>1. Under the charter of 1889 (ch. 152) of the city of Superior, providing among other things that in the first instance the cost of improving streets shall be chargeable to the abutting lots in proportion to the benefits accruing thereto, and the amount thereof collected as a special tax against the property; that the city may issue improvement bonds to cover unpaid assessments, which bonds shall “contain such recitals as may be necessary to show that they are chargeable to particular property, specifying the same;” and restricting the power of the common council to issue bonds to certain specified purposes only, not including street improvements, it is held that the city had no power to issue general bonds for street improvements. Fowler v. Superior, 85 Wis. 411 (arising under the charter of 1891 — eh. 124), distinguished.</p> <p>2. Where the provisions of a city charter show plainly that special improvements shall in the first instance he paid for by the abutting property, a contrary inference will not arise from the mere fact that the special assessments authorized for that purpose will not be sufficiemt to pay the improvement bonds and interest, where the deficit will be very slight.</p> <p>3. Where a city had no power to issue certain bonds, no recital therein will estop the city from defending on that ground.</p> <p>4. Bonds issued by a city without authority cannot be subsequently ratified by it so as to make them valid.</p>

<p>Appeal from a judgment of the county court of Waukesha county: M. S. Gp.iswold, Judge.</p> <p>This action was brought to recover the value of one half of certain crops which plaintiff claims belong to him under a lease made by him as tenant with the defendant as landlord. The defendant interposed a counterclaim, claiming that the plaintifE had not accounted for the crops or for the produce of the farm pursuant to the terms of the lease.</p> <p>The action was tried by the court. There was no material dispute concerning the principal facts. August 16, 1897, the defendant, by a written lease, rented to the plaintiff his farm in Waukesha county for a term of one year, ending October 1, 1898, with the privilege of an extension of one year by giv-, ing thirty days’ notice. The lease also included the machinery, live stock, and grain upon the farm October 1, 1897. The lease provided that the said Rowlands should “pay unto the said Christian Voechting, in lieu of rent, one half of the income of said farm and products raised thereon, as well as the proceeds arising from the sale of milk, eggs, and all dairy products, vegetables, and grain, and quarter-annually render a true account of all the receipts and disbursements during the three months next preceding the day such account is rendered, and furnish receipts for all moneys paid out at the end of said term.” The lease further provided that the tenant should return to the landlord at the end of the term all the machinery, grain, live stock, etc., which he had received when he entered upon the lease, or else replace the same in specie, or the value thereof; all expenses excepting farm help or labor to be paid one half by each party. The lease was renewed for the second year, and on October 4, 1899, there were on hand on the farm certain products raised during the term, to the value of $248.56, consisting of grain or other products, different in kind, but in excess of, the grain and products which he received in 1897. On October 4, 1899, the defendant refused to permit the plaintiff to take away said products or any part thereof, and appropriated the same to his own use, claiming that the plaintiff had not accounted for the products received and sold by him and was largely indebted to the defendant on account thereof. It appeared, also, that the plaintiff was a farmer and the head of a family which was dependent on him for support at the time of and prior to the conversion of said property by the defendant. It appeared, also, that upon an accounting between the parties the plaintiff at the time of said conversion owed the defendant, for farm products sold during his term and not accounted for, and for grain received at the time of the commencement of the lease, $115.05; also that the defendant owed the plaintiff for various items of expense paid by plaintiff and moneys received by defendant $135.76; leaving a net balance in favor of plaintiff of $20.71.</p> <p>Upon these facts the court concluded that the property seized was exempt, and that the defendant’s conversion thereof was unlawful; that the defendant’s counterclaim could not be allowed; and that the plaintiff was entitled to judgment against the defendant for one half of said crops and products so converted by the defendant, amounting to the sum of $124.28, with interest from the day of conversion. From judgment in accordance with these conclusions the defendant appeals.</p>

<p> Officers: Duty to furnish copies of records: School-district clerics: Excessive fee: Penalty. </p> <p>1. The imposition of a penalty upon officers, including school-diSr trict clerks (sec. 4148, Stats. 1898), for failure to furnish certified copies of the public records under their charge, by implication imposes a duty to furnish such copies.</p> <p>2.. The provision in said section making such copies receivable in evidence does not limit the officer’s duty to furnishing copies for that purpose.</p> <p>3. The term “allowed by the laws of this state,” as used in sec. 2955, Stats. 1898 (prohibiting any officer “to whom any fee or compensation shall be allowed by law for any service” from taking “any other or greater fee or reward for such service than such as shall be allowed by the laws of this state”), means “allowed by any statute of this state.”</p> <p>4. There being no statute allowing a school-district clerk any definite fee for furnishing certified copies of records, he is not liable to a penalty under secs. 2955-2957, Stats. 1898, by reason of having demanded and received compensation greater than the statutory fees of other officers for similar services.</p> <p>5. Sec. 2959, Stats. 1898 (providing that “when a fee is allowed to one officer the same fee shall he allowed to other officers for the performance of the same services, when such officers are1 by law authorized to perform such services”), applies only where either of two officers may legally perform a particular act and a fee is specifically allowed to one and not to the other.</p>

<p>. Appeal from an order of the circuit court for Waukesha county: Jakes J. Dice, Circuit Judge.</p> <p>Tbe plaintiffs are the owners of property abutting on Fowler Lake, in tbe city of Oconomowoc, Wisconsin, each owning tracts in severalty. This lake is fed by tbe Ocono-mowoc river, which flows in from the east, and its waters are discharged into La Belle Lake, a few rods west. In 1837 a dam was erected at tbe outlet, raising the water about nine feet above the natural level, which dam has since been maintained and the water usually kept at an average level of nine feet until about 1893. The land adjoining was overflowed to some extent, and when so maintained the lake was available for boating and fishing purposes. Relying upon these conditions, the plaintiffs have built summer residences, hotels, etc., with boat landings and wharves, and made many improvements to conform to the increased level. The property has become valuable because of these changed conditions, and will be greatly damaged if the water be drawn down. The defendants Brown and Peacock own the dam and water power and water rights, and have flouring mills operated thereby. Said mills are so situated that the defendants are able at pleasure to draw the water almost entirely from Fowler Lake, and since 1893 they have wrongfully and unnecessarily allowed the water to run through their waste gates, and have unnecessarily drawn the water to an exceedingly low stage, thereby lowering' it four feet at a time. By reason thereof the shores of the lake have become marshy, miry, and impassable for boats, and in a very unsanitary condition, generating malaria and breeding sickness. Boathouses, piers, and docks have become useless, and access to the lake from the adjoining property impracticable. The defendants’ mill is equipped with' old-fashioned water wheels, which require much more water to develop pourer than modern equipments, which are retained and used as an excuse for drawing the water down to' the low stage as- stated. The plaintiffs claim the prescriptive right to require the former head of water in the lake to be maintained, and allege irreparable damage resulting from the lowering thereof.</p> <p>The defendant Oconomowoc Waterways Company is a corporation claiming the right to widen and deepen the Ocon-omowoc river, which has been done, and locks put therein, obstructing and diminishing the flow of water into said lake to some extent, and in that way has participated more or less in lowering the water in the lake. It claims the right to obstruct the flow, and threatens to maintain the obstructions and control the flow, to the injury of the plaintiffs.</p> <p>The other defendants, who may be called the “Schrauden-bacli heirs,” own and control a milldam and water power at the outlet of Okauehee Lake, from which the waters of the Oconomowoc river flow into Fowler Lake. This dam carries a head of eleven feet. If the water is obstructed either in Okau-chee Lake or the Oconomowoc river, it interferes with and lowers the waters in Fowler Lake. Said defendants have at times obstructed the natural flow of the Oconomowoc river, and unnecessarily held the waters back in said lake to a higher point than they have any right to hold the same, and at times have completely stopped the flow of said river; thus interfering with the height of water in Fowler Lake.</p> <p>The plaintiffs are without any legal remedy, and ask judgment- determining the rights of the parties, and a perpetual injunction against all the defendants, restraining them from interfering with tbe ordinary level of Fowder Lake. The defendants Brown and Peacock demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and because several causes of action had been improperly united therein. Such demurrer was overruled, and from an order ,so entered they have taken this appeal.</p> <p>They contended that the one primary right claimed by plaintiffs, viz., the right to have the level of Eowler Lake maintained, is alleged to have been violated by several and distinct acts by separate and distinct defendants, and the complaint thus states several causes of action. Pomeroy, Remedies, § 456; Lull v. Fox & Wis. Imp Go. 19 Wis. 100; 2 Wait, Pr. 353, 355J These distinct causes of action do not affect all the parties and are therefore improperly joined. Lull v. Fox & Wis. Imp. Go. 19 Wis. 100; Barnes v. Beloit, 19 Wis. 93; Turner v. Dutchman, 23 Wis. 500; Greene v. Nun-nemacher, 36-Wis. 50, 58; Hoffman v. Wheelock. 62 Wis. 434; Plankinion v. Hildebrand, 89 Wis. 209; Hughes v. Hunner, 91 Wis. 116; Blakely v. Smock, 96 Wis. 611; Fn-dress v. Shove, 110 Wis. 133, 139 ; Hess v. B. & N. F. B. Go. 29 Barb. 391; Gardner v. Ogden, 22 N. Y. 327, 340; Hines v. Jarrett, 26 S. 0. 480, 2 S. E. 393. See, also, Bliss, Code PL § 123; Jackson v. Brookins, 5 Hun, 530; Cook v. Hor-witz, 10 Hun, 586; Gompton v. Hughes, 38 Hun, 377; Gleg-horn v. Cleghorn, 79 Hun, 609; Arkenburgh v. Wiggins, 13 App. Div. 96; Bonnell v. Griswold, 68 N. Y. 294; Nichols v. Drew, 94 N. Y. 22; Arkenburgh v. Wiggins, affirmed, 162 N. Y. 596; Bodgers v. Bodgers, 11 Barb. 965 ; Viall v. Mott, 37 B>arb. 208 ; House v. Cooper, 16 How. Pr. 292; Kelly v. Newman, 62 How. Pr. 156; Stanton v. M. P. B. Co. 2 N. Y. Supp. 298 ; Adams v. Stevens, 27 N. Y. Supp. 993; Sanders v. Glason, 13 Minn. 379; Trowbridge v. Forepaugh, 14 Minn. 133; Berg v. Stanhope, 43 Minn. 176, 45 N. W. 15; Lange-vin v. St. Paul, 49 Minn. 189, 51 N. W. 817; Woodruff v. Young, 43 Mich. 548; Lane v. State, 27 Ind. 108; Bobinson v. Bice, 20 Mo. 229; Farmers’ Bank v. Bayliss, 41 Mo. 274; Wilson v. Castro, 31 C'al. 420; Ghiradelli v. Bourland, 32 Cal. 585. Several actions against several different defendants cannot be joined to avoid multiplicity of suits. Hungerford v. Gushing, 8 Wis. 332, 338; Seaman v. Goodnow, 20 Wis. 27; Story Eq. PL §§ 271, 286, 530; Fellows v. Fellows, 4 Cow. 682; Winslow v. Jenness, 64 Mich. 84, 30 N. W. 905; 2 Wait, Pr. 367.</p>

<p>Appeal from a judgment of the circuit court for Waukesba county: James J. Dice, Circuit Judge.</p> <p>The defendant, being a mutual town insurance company,, organized as such under the laws of Wisconsin, on October 30, 1896, insured certain buildings of one Elizabeth Adams for a term of five years from that date, certain of which, to the amount of $500 insurance, were destroyed on July 9, 1900. Elizabeth Adams died testate, resident in the town of Wau-kesha, in December, 1898, and her will was admitted to probate April 10, 1899, and the plaintiff, Milwaukee Trust (7pm-;pany, appointed her executor; and again, on February 26, 1901, its account as executor having been settled, it was appointed trustee under the terms of her will, and in one capacity or the other has had control of the real estate on which the buildings were situated since the time of its appointment. In September, 1899, the company made a general assessment of two per cent, on all policies, to pay losses already incurred, which losses had been paid by borrowing money from time to time. The fact that an assessment had been made was published as early as October 5th in one or two newspapers published in the town of Waukesha, and about the 15th of September the secretary of the company mailed a postal-card notice of such assessment to the former address of Elizabeth Adams, in the town of Waukesha, at that time knowing that she was dead. No other attempt at notification was made. Some time in January the directors-of the company, upon record showing the delinquency in payment of certain of these assessments, directed the secretary to notify them that their policies would be canceled unless payment was made by February lqt. He sent such notice by postál card again addressed to Mrs. Adams at her post-office address while living, and about February 1, 1901, wrote across the record of the policy on his books the words, “Canceled for nonpayment-of assessments.”</p> <p>Upon proof of loss being made by the Milwaukee Trust Company, liability was denied on the ground of the previous lapse and cancellation of the policy, whereupon the plaintiff tendered the amount of the delinquent assessment, with all penalties thereon, but payment was still refused. The application for the policy expressly embodied the by-laws of the company in the contract, and amongst those by-laws is section 12, in the following words: “Any one holding a policy issued by this company who refuses or neglects to pay his just assessment for ninety days after notification thereof shall forfeit such policy.” The policy contained the provision: “The interest of the insured in this policy is not assignable unless the assignee, before loss happens, shall give notice in writing of the assignment, in pursuance of the by-laws of this company, and have the same indorsed on or annexed to the policy, and give a new undertaking of the same form and amount as the original.”</p> <p>The only defense upon the trial was the forfeiture of the policy by reason of nonpayment of the assessment. The court instructed a verdict for tbe plaintiff for the stipulated amount of $500, whereon judgment was entered, from which the defendant appeals.</p> <p>To the point that there was no sufficient declaration of forfeiture, they cited Joliffe v. Madison Mut. Ins. Co. 39 Wis. 111.</p>

<p>Appeal from a judgment of the circuit court for Washington county: James J. Diok, Circuit Judge.</p> <p>This is an action of ejectment. The complaint alleges, in effect, that at all the times therein mentioned the plaintiff was a corporation duly organized and existing under the laws of this state, and that the defendant company was also a corporation duly organized and ■ existing under the laws of this state; that May 25, 1900, and for a long time prior thereto, the plaintiff had been, and ever since has been and now is, the owner in fee-simple absolute of the premises therein described ; that the plaintiff is entitled to the immediate possession of the premises so described, and that the defendants unlawfully withhold the possession thereof from the plaintiff, to its damage in the sum of $1,000; that October 14, 1901, one James S. Sanborn claimed to be the owner of said premises under and by virtue of a certain pretended deed claimed to have been executed and delivered to him as grantee by this plaintiff as grantor, which pretended deed bore date May 25, 1900, and Avas recorded July 27,1900 ; that October 14,1901, by warranty deed dated on that day, and recorded October 22, 1901, the said James S. Sanborn and wife; as grantors, purported to convey said property-to one Dwight A. Sanborn; that October 14, 1901, by deed dated on that day, and recorded November 1, 1901, Dwight A. Sanborn, as grantor; purported to convey to the defendant Pilce & North Ladees lee Company, as grantee, the said lands described; that the defendant company claimed title to the land so' described under and by virtue of the conveyances hereinbefore mentioned, and not otherwise; that the plaintiff never executed or delivered to the said James S. Sanborn any deed or conveyance of the said property, or any part or parcel thereof, but that it is, and has been at all times since May 25, 1900, and prior thereto, the owner in fee-simple absolute of said premises, and entitled to the possession thereof, as stated; that the defendants Beer and Ilusting are each in possession of portions of the property described, claiming to hold the same as tenants of the defendant company. Judgment is demanded against the defendants for tibe possession of said premises, and for $1,000 damages for tbe withholding of tbe same, together with costs and disbursements of this action. Tbe defendant company and Hushing, respectively, answered by way of admissions, denials, and counter allegations.</p> <p>Tbe plaintiff and tbe defendant company only appeared by attorneys upon tbe trial, and tbe plaintiff, having called a witness, proceeded to examine him, whereupon the defendant company demurred to the complaint ore henus, which was sustained by tbe court, and thereupon judgment was ordered to be entered in favor of tbe defendants, dismissing tbe complaint upon tbe merits, with costs. Elom tbe judgment entered thereon accordingly the plaintiff brings this appeal.</p> <p>They contended that tbe rule applicable to the construction of this complaint is the one applied in Eaton v. Smith, 19 Wis. 537; Spiess v. Neuberg, 71 Wis. 279, 2S7; Prichett v. Much, 74 Wis. 199, 207; Esch-erick v. Traver, 65 Ill. 379; Stanley v. Valentine, 79 Ill. 544; 3 Cook, Corp. § 848, p. 1912.</p>

Dick, Circuit Judge. William Butler died testate February 25, 1900, and his will was duly admitted to probate in the county court of Waukesha county April 16, 1900, against objections thereto which had been filed by several children of the deceased, including the respondent. On the same day the appellant, Templeton, was appointed executor, and duly qualified, and letters were issued to him.

Dice, Circuit Judge. Action to recover damages. This is the substance of the complaint: Plaintiff is and has been for many years a practicing physician, fully qualified, under the laws of this state, to pursue his profession therein.

Dtck, Circuit Judge.' The plaintiff is a judgment creditor of the defendant John Frey. An execution having been issued and returned unsatisfied, the plaintiff brings this action in aid of execution to set aside a deed from Frey to his wife, the defendant Augusta, and a mortgage given by the wife to defendant Thielhe. The facts material to the questions involved, au found by the court, may be stated as follows: On May 18, 1901, John Frey was insolvent.

A. BabNey, Judge. This was an action to foreclose a mortgage originally for $6,500, on which it was claimed that there remained $5,000 unpaid. One of the principal defenses was the payment of an additional $1,000 and the tender of the balance of $4,000 before commencement of the suit, and the keeping good of said tender. This defense was substantially sustained by the findings ánd judgment, which latter was that the plaintiff’s complaint be dismissed.

Dice, Circuit Judge. This is an action to recover $1,000, with interest thereon from February 20, 1901, alleged to be due under the terms of a fire insurance policy issued by the defendant to the plaintiff February 21, 1900, on certain property belonging to the plaintiff and therein described, and then occupied by one A. M. Swift, as tenant of the plaintiff.

Dick, Circuit Judge. Facte: Josiah Woodward died testate March 1, 1817. His will was admitted to probate in the county court for Dodge county, Wisconsin, April 9, 1877.

Dick, Circuit Judge. At the April election, 1902, in the town of Brookfield, Waukesha county, Wisconsin, the relator and the defendant-were rival candidates for the office of assessor. At such election the defendant received 153 undisputed ballots, and the relator 152. There were two ballots upon which the name of the defendant was printed, upon one of which the name 3.

D. Hastings, Je., Circuit Judge. Action for balance of $75.06 on the purchase price of a certain second-hand steam engine sold by plaintiff to defendant. Defense admitted the indebtedness and set up counterclaim for breach of warranty.

, . Appeal from a judgment of tbe circuit court for Brown county: S. D. HastiNgs, Jb., Circuit Judga This is a bill in equity to redeem from a mortgage foreclosure and sale, by reason of an alleged defect in the proceedings, and also by reason of an alleged agreement with, the purchaser at such sale to allow such redemption.

Parish, Circuit Judge. This is an action in equity to quiet the title of certain real estate.

<p> Quieting title: Pleading: Legal title. </p> <p>In an action to quiet title, allegations of the complaint that a certain person conveyed the land to another hy warranty deed, agreeing thereby that he was well seised in fee simple, and that said grantee conveyed the land by warranty deed to plaintiff, do not show that plaintiff has the necessary legal title to the premises.</p>

Paeish, Circuit Judge. Action by a landlord to recover $225, past-due rent, from bis tenant. Tbe leased premises consisted of tbe ground floor and part of tbe basement of a three-story building, tbe rest of the room therein being leased to various tenants, each having a specific portion thereof. There was no express covenant to keep the building or any part thereof in repair. The complaint was in the usual form.

Pabish, Circuit Judge. This is an appeal from a judgment of the circuit court affirming the proceedings of the common council at a regular meeting thereof held December 10, 1901, reassessing the taxes upon the relator’s property, described, for the years 1891, 1892, 1893, and 1894, which proceedings were taken to the circuit court on certiorari.

Pabish, Circuit Judge. This is an action of ejectment originally brought by the plaintiff against the defendants Smith, Osborne, and the Athens Lumber & Cooperage Company.

<p>Appeal from a 'judgment of the circuit court for Iron county: John K. Paeish, Circuit Judge.</p> <p>The substance of the complaint, in addition to a statement of the conditions precedent to the commencement of the action,'is as follows: On or about January 1, 1893, plaintiff, a duly organized corporation, contracted with the defendant, one of the duly organized towns of tire state, to furnish to it a public water supply for a term of years, and it agreed in consideration thereof to pay plaintiff $4,000 per year for such service. Such service has been fully performed since the date of the contract and plaintiff has received therefor various sums of money; but there is a balance due and unpaid of $1,500, for which, with interest and costs, judgment is demanded.</p> <p>The answer, among other things, pleaded want of power on die part of defendant to make the contract sued on. The evidence was to the effect that a contract was in form made between plaintiff and defendant, substantially as set forth in the complaint, on the faith of ch. 40, E. S. 1878, and the acts amendatory thereof; that it was made in the usual manner such transactions occur; that a franchise was granted to plaintiff by the defendant in the usual form, giving the former the right to construct and maintain a system of waterworks for the purpose of furnishing water for public and private use in the village of Hurley and the vicinity thereof. The amount alleged in the complaint, to be paid to plaintiff for the public water supply, and the franchise, were duly accepted, and its requirements carried out by plaintiff. There was further evidence establishing plaintiff’s cause of action, if the defendant had corporate authority to malee the contract. The trial court held that there was no such authority, and accordingly dismissed the complaint and rendered judgment for costs in favor of the defendant.</p>

<p>Appeal from a judgment of the circuit court for Taylor county: JohN K. Pakish, Circuit Judge.</p> <p>Appeal from a judgment upon several promissory notes, taken by default before the clerk. Service upon defendant was attempted to be made by leaving a copy of the summons and complaint with the defendant’s wife, but the proof fails to show that the defendant could not be found. No appearance was made by the defendant, unless taking an appeal from the whole and every part of the judgment and serving a general notice of appeal was such appéarance.</p>

<p> Newspapers: Definition: Publication of ordinances, etc.: Official city paper. </p> <p>The term “newspaper,” as used in sec. 9, ch. 3, oí the Milwaukee city charter (ch. 66, Laws of 1891), — requiring the council to award the contract for publishing ordinances, notices, etc., to the daily newspaper offering to do the same at the lowest price for a year, and to designate such newspaper as the official newspaper of the city — is held to include the “Daily Reporter,” a paper twelve by eighteen inches, published in a morning edition of eight pages and an afternoon edition of four pages, devoted primarily and mainly to reports of the markets, courts, and conveyancing and building news, but containing also the weather report and forecast, some advertisements, and, in “plate matter,” some information and news concerning matters of general interest, although such paper reaches but a few hundred out of the hundreds of thousands of population of the city.</p>

<p> Criminal law and, practice: Examination of jurors: Homicide: Evidence: Instructions to jury: Reasonable doubt: “Heat of passion”: Apparent danger: Justifiable and excusable lulling. </p> <p>1. Upon the examination of a juror on his voir dire it was not error to exclude a question as to whether he knew that the defendant in a criminal case was entitled to the benefit of the presumption of innocence, since that called upon him to anticipate .the instructions to he given by the court.</p> <p>2. Upon such examination it was not error to exclude questions as to whether the juror, if selected, would give defendant the benefit of the presumption of innocence throughout the trial and until he had heard all the evidence, and whether he could and would wait until he had heard all the evidence before malting up his mind; although perhaps it would have been better practice to allow the juror to answer them.</p> <p>3. Upon a trial for murder it was not error to refuse to allow a physician to testify as to the effect, upon a man suffering from heart disease, of a sudden blow upon the heart or body or of being compelled to engage in a scuffle or struggle while angry, or as to the likelihood of heart disease terminating suddenly or fatally — it not having at that time been shown that defendant had heart disease, and there being subsequent uncontradicted testimony covering substantially the same ground.</p> <p>4. A charge to the jury that, “in passing upon the question as to what degree of homicide the defendant is guilty, if you have a reasonable doubt as to whether it should be a higher or a lower grade, you are to give him the benefit of the doubt and return a verdict of guilty of the lower offense rather than the higher,” is held not to have had a tendency to mislead the jury to believe that if they had a reasonable doubt as to the existence of either of two grades of offense they should convict of the lesser,- — especially in view of the charge immediately following, that they could not convict of any degree of criminal homicide if they had a reasonable doubt of his guilt.</p> <p>5. Although a charge defining reasonable doubt as “such a doubt as would cause a reasonably prudent man to pause, or deter him from acting or deciding, in the most important affairs of life,” is open to criticism, yet the error is held not such as should work a reversal, where that charge was followed by an instruction, given at defendant’s request, that if “a doubt as to defendant’s guilt arises in your mind, which would lead you to pause and hesitate to conclude in the affirmative concerning the most important affairs of life, you have a reasonable doubt of defendant’s guilt and you should acquit him.”</p> <p>■6. It was not such an error as should work a reversal to charge the jury,, on a trial for murder, that the case was a very important one; that “on the one hand stands the commonwealth of Wisconsin, demanding that its laws shall be executed, that crime shall be punished; and representatives of the people are asking at your hands a verdict of guilty of whatever offense you may find the evidence to warrant.” This was not equivalent to saying that the state had already decided the defendant’s guilt of some degree of homicide, and that the state de- . manded a verdict of guilty.</p> <p>'7. After defining manslaughter in third degree as in sec. 4354, Stats. 1898, it was proper to charge the jury that “heat of passion means something more than mere anger or irritation. It means that at the time of the act the reason is disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment.”</p> <p>•8. Respecting justifiable homicide the court charged that “the taking of human life is a matter of such serious import that it cannot be justified by only slight danger. The danger which will justify the killing of a human being must be actual, present, and urgent to the apprehension of the defendant. Anything less than this will not suffice to justify one human being in taking the life of another.” Held, that this was not open to the objection that it included only danger which existed in fact and was also present and urgent to the apprehension of the defendant, especially as the jury had just been Instructed, at defendant’s request, that it was sufficient if defendant had a reasonable belief of danger of losing his life or of suffering great bodily harm, “although the danger was not real- — only apparent.”</p> <p>9. Upon the evidence — tending to show, among other things, that defendant had reasonable ground to apprehend a design on the part of the deceased to commit a felony upon him or to do him some great bodily harm; that just before the shooting he had, by drawing a revolver, stopped deceased from violently advancing upon him; that when deceased was in the act of making another violent and threatening assault, defendant drew the revolver a second time, hoping to. deter deceased from advancing, further; that, not knowing the revolver was cocked, and without taking aim, he pointed it toward deceased, then about eight feet away, and told him to stop or he would shoot, hut without any intention of shooting; and that the revolver was then discharged, causing death — it is held that the jury might have found the homicide excusable, as having been “committed b-y accident and misfortune” in doing a “lawful act by lawful means with usual and ordinary caution and without any unlawful intent” (sec. 4367, Stats. 1898), and that it was error not to submit that question to the jury.</p>

V. EaedeeN, Circuit Judge. This is an action by the plaintiff to recover for personal injuries resulting from the discharge of a revolver while in •the defendant’s hands, the bullet penetrating the plaintiff’s skull and injuring bis bealtb and eyesight. In 1891, when the accident on wbicb this action is based occurred, the parties were boys living in Wausau, and were each about thirteen years of age.

<p> Trial: Court and jury: Conclusiveness of decision on former appeal:Opinion: Reading to jury: Refusal of explanatory instructions. </p> <p>1. A decision of the supreme court, on appeal, that the evidence-upon a particular issue at the first trial was sufficient to warrant its submission to the jury, is conclusive upon a subsequent appeal taken after a second trial at which the evidence-upon that issue was substantially the same.</p> <p>2. A decision upon a former appeal that the testimony of a party at the first trial, on which the verdict in his favor upon a particular issue was based, was wholly unworthy of belief, is not conclusive as to that point on a subsequent appeal taken after a second trial at which that testimony was so corroborated by other evidence that it could not be deemed unquestionably false.</p> <p>3. The decision of the trial court refusing to set aside a verdict as contrary to the evidence will not be disturbed unless it cannot be sustained in any reasonable view.</p> <p>4. The opinion of the supreme court, filed upon the reversal of a judgment, is, as regards a second trial, for the information of the trial court and should not be used to discredit a witness before the jury.</p> <p>5. Refusal to give an instruction merely explanatory of a correct instruction previously given in language understandable by persons of ordinary comprehension, does not constitute a prejudicial error.</p>

<p>Appeal from a judgment of the circuit court for Lincoln-county: W. 0. Silveeti-iobn, Circuit Judge.</p> <p>Tie purpose of this action is to recover damages claimed to have been sustained by plaintiff while alighting from one-of defendant’s passenger trains at Eland Junction, Wisconsin, about 3 o’clock in the morning of June 10, 1900. The negligence alleged was that the place where the car stopped and where plaintiff was to alight was not a safe or proper place, in that the platform was too high and too far from the car step; in that there was no light at or near the platform; in that defendant’s brakesman had no lantern and gave no warning, and the place was so shrouded in darkness that plaintiff was unable to distinguish the location of the platform and the distance from the step. All negligence was der-nied by the answer. The plaintiff testified to the absence of light, and that because she could not see the platform, in attempting to alight, her toe only struck the platform, and she slipped and was injured. The defendant’s testimony showed that the distance from the edge of the platform to the lower step, on an angle, was nine inches. The step was four and one half inches higher than the platform, and the distance between the edge of the platform and the step, on a line extending horizontally from the platform, was seven and five-eighths inches. Defendant’s testimony also showed that the defendant’s brakeman was at the place with a lighted lantern and attempted to assist plaintiff in alighting, that the cars were lighted, and'the depot lighted; and that there was a lamp on a post less than thirty feet distant, and one on the side of the depot near the baggage-room door, besides other lights farther away. A motion by defendant to direct a verdict in its favor was denied. The following .special verdict was rendered:</p> <p>“1. Was the plaintiff injured on the 10th day of June, 1900, at the station of Eland Junction, while alighting from the train of the defendant? Answer (by the court). Yes. 2. Was the platform in question so constructed as to be reasonably safe for passengers to alight upon and from trains at the point where the accident occurred to the plaintiff? A. (by the court). Yes. 3. When the plaintiff descended the steps of the coach towards the depot platform, was the brakeman of tbe defendant company standing upon the depot platform at the steps of the coach which plaintiff was descending, ready and willing to assist the plaintiff ? A. (by the court). Yes. 4. Did the brakeman then and there have a, lighted lantern? A. Yes. 5. Did the brakeman then and there offer to assist the plaintiff? A. Yes. 6. Did the plaintiff decline the assistance of the brakeman ? A. No. 7. Was the station platform, at the point where the accident happened to the plaintiff, sufficiently lighted to enable the plaintiff, in the exercise of ordinary care, to descend from the car steps to the station platform with reasonable safety ? A. No-. 8. If you answer question No. 7 ‘No,’ then was such insufficiency of light the proximate cause of the injury plaintiff sustained? A. Yes. 9. If you answer question No. 8 ‘Yes,’ then ought the defendant reasonably to have foreseen that a person might be injured in getting off the cars in the nighttime onto the station platform at the point in question, under all the circumstances and conditions in which plaintiff alighted? A. Yes. 10. Was the plaintiff guilty of any want of ordinary care which proximately contributed to the injury she sustained ? A. No. 11. If the court shall be of the opinion that the plaintiff should recover upon this special verdict, at what sum- do you assess plaintiff’s damages? A. $1,500.”</p> <p>The defendant made a motion to strike out the answers to questions 6, 7, 8, 9, and 10, and for judgment, and, in case that was denied, for a new trial, which was denied, and duly excepted to. Exceptions were also- duly filed to the charge. Judgment was entered for plaintiff, from which the defendant takes this appeal.</p>

C. Silverthorh, Circuit Judge. Appeal from order overruling general demurrer to tbe complaint in an action to recover damages for personal injury, substantially alleging that defendant owns and operates a mill for tbe planing of lumber, containing, among’ other things, a double planing machine, with one set of planing knives above, and tbe other below, tbe table; that plaintiff, being wholly unfamiliar with tbe machine, was set to work thereon; that tbe lower knives,…

C. SilveethoeN, Circuit Judge. This is an appeal from a judgment of nonsuit granted at tbe close of all tbe testimony, in an action to recover damages for tbe death of tbe plaintiff’s intestate, alleged to bave been caused by a defect at tbe west end of Division street in tbe defendant city.

In March, 1900, defendant owned and operated a sawmill in Eau Claire county. Among other machines in use was a double edger for edging lumber as it came from the saws. Plaintiff had acted as a helper at this machine for about eight years. His station was on the left-hand side of the machine, about opposite the center of the feed table. His duty was to assist in taking lumber from the rollers or skids and placing it- on the edger table.

<p>Appeal from an order of tbe circuit court for Eau Olaire • county: James O’Neill, Circuit Judge.</p> <p>Appeal from order sustaining demurrer to complaint wbicli alleges injury to tbe plaintiff on tbe 8tb day of March, 1901, from a pile of debris wbicb bad accumulated across a perfectly good sidewalk. Said débris, consisting of stone, brick, cement, and ice, bad been allowed to remain for a period of about a month prior to the injury, wbicb is alleged by tbe complaint to have constituted an insufficiency and obstruction and a dangerous place upon said sidewalk. Tbe complaint alleges notice of tbe injury to tbe city on tbe 18th day of March; that on June 22d be filed a certain paper describing bis accident and bis injuries, but declaring that it was not filed as a formal claim under any provision of tbe charter, but merely to enable a settlement without litigation; that on July 17, 1901, tbe council passed a resolution wholly disallowing plaintiff’s claim; that plaintiff has at all times been without means or property to procure a bond for costs to enable him to appeal from tbe disallowance of tbe claim in the manner provided by the charter of the defendant city. The action was commenced by summons and complaint.</p> <p>Tbe grounds of demurrer were — first, that tbe complaint does not state facts sufficient to constitute a cause of action; second, that the court bad no jurisdiction either of tbe person of tbe defendant or of the subject of the action; third, that plaintiff has not legal capacity to sue, for the reason that the charter prohibits suit, and authorizes in lieu thereof an appeal to the circuit court; and, fourth, that the action was not commenced within the time limited by law, namely, the Eau Claire charter, specifying secs. 22, 23, 24-, 25, and 26 of subch. VII, of that act (viz., ch. 184, Laws of 1889). The order sustaining the demurrer does not declare which ground of demurrer is sustained, but certain of its recitations indicate as principal ground the noncompliance with the special provisions of the sections of the city charter above enumerated.</p> <p>The charter of the city of Eau Claire, by secs. 22 — 25, subch. VII, substantially requires that all claims and demands, either ex contractu or ex delictoagainst the city, shall be first filed with the city clerk for action by the common council, and provides, in case of disallowance or failure to act, which is made tantamount to disallowance, for appeal to the circuit court within twenty days; such appeal to be taken by giving a notice, accompanied by a bond with sufficient surety, conditioned for the faithful prosecution of the appeal and payment of all costs adjudged against the appellant. Said sections also provide that no suit shall be otherwise brought, and that the determination of the common council shall be final and conclusive, and a perpetual bar to any action in any court founded on such claim, except by said method of appeal. Sec. 26 of the same charter further provides that the city shall not be liable, nor shall any action be maintained against it, for any, damages or claims founded upon any injury, caused by reason of any defects or any insufficiency or want of repair of any bridge, sluiceway, road, sidewalk, or street in said city, unless the same be commenced by filing the claim with the city clerk within ninety days from the time of the accident.</p>

<p>Appeal from a judgment of the circuit court for Clark county: Jakes O’Neill, Circuit Judge.</p> <p>This action was commenced before a justice of the peace to recover $157.60 as the balance due the plaintiff for cutting, skidding, and hauling 2,960 logs, scaled at 151,420 feet, at the agreed price of $2.75 per 1,000 feet, amounting in all to $416.40, which the defendant had promised to pay therefor, but no part of which had been paid except $258.80, leaving a balance of $157.60, for which the complaint demands judgment. The answer consists of a general denial, and, as a separate defense, alleges, in effect, that such cutting, skid-. ding, and Rattling was under a contract entered into between the plaintiff and defendant in October, 1900, by the terms of which the plaintiff was, during the logging season of 1900-1901, to log off all the standing timber and windfalls on 240 acres of land described,-for which.the defendant was to pay him, when completed to the satisfaction of the R. Conner Company, — the owner thereof, — $2.75 per 1,000 feet, after deducting all labor claims which might he paid by the defendant, if any; that the plaintiff had failed and neglected to log off all the standing timber and windfalls', and had failed to complete the job to the satisfaction of the R. Conner Company, but had left a large and substantial part thereof uncompleted; that after examination of the premises the R. Conner Company refused to accept the job, by reason of such failure to complete the same; that the defendant had fully performed all the conditions of the contract on his part, and was willing and ready to pay the plaintiff whenever he completed the job according to the contract.</p> <p>The plaintiff recovered judgment before the justice, and the. defendant appealed to the circuit court, where the cause was retried. It appeared on the trial, and is undisputed, that there is a creek running through the land in a northerly and southerly direction. At the close of all the testimony the trial court found from thé undisputed evidence, as a matter of law, in effect: (1) That the plaintiff and defendant entered into a contract in the fall of 1900, “whereby the plaintiff was to log off certain timber on section 10,” in which section the land in question was located; (3) that the plaintiff was “to complete the contract on his part before anything was due him thereunder, except advances for labor and supplies;” and (4) that the plaintiff did not “log off the timber on the east side of the creek.” The jury returned a special verdict, which included the three questions so answered by the court; and the jury therein also found, as matters of fact, in effect: (2) That the contract did not include the timber on the east side of the creek j (6) that the contract was not to he accepted by the E. Conner Company; (8) but that it was accepted by that company; and (9) that they assessed the' plaintiff’s damages at $164.68, the same being the $157.60 claimed in the complaint and interest. From the judgment entered upon such findings, for the amount so found due and eosts^ the defendant appeals.</p> <p>As to the burden of proof, they cited 5 Am. & Eng. Ency. of Law (2d ed.) 27; Homire v. Badgers, 74 Iowa 395, 37 1ST. W. 972; McEvoy v. Swayze, 34 Feb. 315, 51 hi. W. 824; Connolly v. Clark, 45 FT. Y. Supp. 1042; Atlcinson v. Goodrich T. Co. 69 Wis. 5.</p> <p>Tb the point that the burden rested upon defendant to show that the timber on the east side of the creek was to be cut and hauled, and the job accepted by the Conner Co., before anything became due, they cited Jones, Evidence, § 178; Goff v. Stoughton Bank, 78 Wis. 106; Gile v. Saiutelle, 94 Me. 46, 46 Atl. 786; Hunter v. Sanders, 113 Ga. 140, 38 S. E. 406; Bivers v. Obear, Nestor G. Co. 81 Mo. App. 374..</p>

<p>Appeal from a judgment of the circuit court for Clark county: James O’Neill, Circuit Judge.</p> <p>This is an action to recover for personal injuries resulting from an accident upon a defective highway. The evidence shows that the plaintiff, a woman fifty-four years of age, was riding in a buggy upon a highway in the defendant town on the 13th day of August, 1899, with her husband and daughter, and that, while crossing a wooden bridge over a small stream, it suddenly gave way, precipitating the plaintiff about nine feet, to- the bed of the stream; her fall being partially arrested by her clothing catching upon the timbers of the bridge. The attending physician testified that one rib was fractured, but that injury was soon recovered from. The evidence also tended to show that at the time of the trial the plaintiff was suffering from a permanent enlargement or displacement of the liver, and it was claimed that the same was-caused by tbe fall from the buggy. On the part of the defendant there was evidence tending to show that there was no injury to or disease of the liver, and, further, that if there was any such injury or disease it was not the result of the accident. A special verdict was rendered as follows:</p> <p>“1. Was the bridge in question insufficient, and in want of repair, at the time of the accident? A. Tes. 2. If you answer the above question Wes/ then did the proper officers of the defendant town have actual knowledge of such insufficiency or want of repair a sufficient time before the accident to have remedied the same in -the exercise of ordinary care ? A. Yes. 3. If you answer the first question Wes/ then had the insufficiency or want of repair existed so long before the accident that the proper officers of the town could by the exercise of ordinary care and diligence have discovered such insufficiency and want of repair, and remedied the same? A. Yes. 4. Was the plaintiff injured by the accident in the falling of the bridge on August 13th, 1899? A. Yes. 5. Was the falling of the bridge the proximate cause of plaintiff’s injuries? A. Yes. 5]r. Was the accident at the bridge the proximate cause of the disease or injury to the plaintiff’s liver, of which she complains ? A. Yes. 6. If the plaintiff is entitled to recover, at what sum do you assess her damages? A. $3,500.00.”</p> <p>The defendant moved to set aside this verdict, and for a new trial, and also to strike out the affirmative answer to question Ho. 5-J, and insert a negative answer; also to require the plaintiff to remit a part of the damages because the same were excessive. The court required the plaintiff to remit $1,000 from the damages, but denied the other motions, and, the plaintiff having made such remission, judgment was rendered on the verdict for the plaintiff for $2,500, and the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: James O’Neill, Circuit Judge.</p> <p>Action on a $5,000 policy of life insurance issued to John Pearl, payable by its terms, upon his death, to his executors, administrators, or assigns. A short time before his death he assigned the policy to the Chippewa Valley Bank to secure the payment of his obligations aggregating $1,100 and interest. Later he made instruments in duplicate under seal, delivering the papers to an attorney in the presence of some, at least, of those beneficially interested in the transaction, instructing such attorney to do whatever was necessary to render such instruments effective, wherein it was recited that he was the legal holder of the policy and that, “for value received,” the beneficiary named in the policy was changed so that the policy would be payable, $1,000 to Margaret Pearl, his mother, $1,000 to Mary Pearl, his sister, and $1,000 to Kate Pearl, his sister, and for value received he directed the insurance company to pay such policy accordingly, the same in all respects as if such persons were originally named in the policy. The attorney to whom such papers were delivered sent the same to the insurance company. Eeceipt thereof was acknowledged by the company, referring to the papers as an assignment and calling attention to the fact that no provision was made for a disposition of the assigned fund in case any or all of the assignees should die before receiving the money. Thereafter Mr. Pearl made another paper under seal, delivering the same to the attorney as before, reciting therein that he was the legal holder of the policy; that Margaret Pearl, Mary Pearl, and Kate Pearl were beneficiaries therein to the amount of $1,000 each, and that the Chippewa Valley Bank was assignee of the policy as collateral security for the payment of certain obligations, and directing payment of the policy accordingly and the payment of any balance that might be left to his sons Jhhn and Philip Pearl. This last paper was entirely unknown to the insurance company till after Mr. Pearl’s death. On the same day such paper was made Mr. Pearl made a will in terms giving the fund to be derived from the insurance policy to his mother, sisters; and sons, as in such last paper.</p> <p>A few days after the execution of the will Mr. Pearl died. B. 0. Stoll, the appellant, was named executor of the will and was duly appointed such by the proper county court. He was also' appointed guardian of Mr. Pearl’s two sons, who were minors. Due proof of death was filed with the insurance company and the policy was fully paid, the claim of the Chippewa Valley Bank being first recognized, then the claims of Mr. Pearl’s mother and sisters, leaving a balance of $896.61, which was paid to' Mr. Stoll as guardian of the children. Later Mr. Stoll, as executor, made a claim against the company for the full amount of the policy, and instituted this action to enforce it. The company answered, among other things, that Mr. Pearl in his lifetime assigned the entire fund to be derived from the policy as indicated in the papers to which we have referred; that due notice of such assignments was given bo the company so as to render them effective; and that the entire fund was paid accordingly without notice of any adverse claim, $1,125 being paid to the Chippewa Valley Bank, $1,000 to Margaret Pearl, $1,000.to Mary Pearl, $1,000 to Kate Pearl, and the balance to B. 0. Stoll as guardian of John and Philip Pearl.</p> <p>The facts above related appearing to the court undisputed,, on motion a verdict was directed for defendant, and judgment was rendered accordingly.</p>

<p>Appeal from an order of tbe circuit court for Eau Claire county: Jakes O’Neill, Circuit Judge.</p> <p>In December, 1884, Bentley S. Phillips obtained a judgment against tbe defendants, as partners, upon a promissory note. In 1899 an execution was issued, and tbe property of tbe defendant Hunner was levied upon. Thereupon said defendant obtained an order to1 sbow cause wby tbe judgment should not be satisfied and the plaintiff enjoined from collecting it. Tbe court declined to determine the matter upon affidavits, and granted an order of reference. Tbe referee found against tbe defendant, and upon confirmation of tbe report tbe defendant took an appeal to- this court. Upon such appeal tbe respondents Rowe and Johnson gave an undertaking for costs on behalf of said defendant, and also undertook “that, if said order appealed from be affirmed, the ■said appellant will pay the judgment heretofore entered in said action.” The order was affirmed. 112 Wis. 249, 87 1ST. W. 1084. Upon return of the record, the sureties on the undertaking paid the amount due thereon, and took an assignment thereof. They caused execution to' be issued and levied upon the property of the defendant Moon. Thereupon said defendant obtained an order to show cause, based upon the affidavit of Mr. Doolittle, his attorney, and upon all the records-in the case, why the judgment should not be satisfied and respondents restrained from pursuing their execution levy. In his affidavit, Mr. Doolittle stated that he was informed and believed that, as between the defendants Moon and ITunner, the latter ought in equity to pay the judgment. The matter was heard by the court upon all the papers and records in the case, including the bill of exceptions settled upon Hunner’s appeal, and the testimony of ITunner and Moon therein contained. After due consideration, .the court discharged the order to show cause, and denied the relief demanded. Moon duly excepted to the ruling, and brings the matter to this court for review by appeal.</p> <p>contended, inter alia, that the attempt by Roive and Johnson to buy the judgment should have been treated, on this motion, as a payment thereof.Judgments are preserved for the benefit of sureties; but they were never sureties as to Moon. They were sureties as to ITunner and may enforce the judgment as against him, but as against Moon they are estopped, having voluntarily, upon a sufficient consideration from Hunner, agreed to pay a debt which was presumptively both Hunner’s and Moon’s. Sheldon, Subrogation, § § 240-247; March v. Barnet, 121 Gal. 419, 53 Pac. 933. The obligations of Boioe and Johnson in respect to the judgment were fixed when they signed the undertaking. They could not escape such obligations by taking an assignment instead of a satisfaction of the judgment. There being no- contract relation between them and Moon, they must ivorlc out such rights as they have through their principal, ITunner. And even he, having paid the amount of the judgment to the judgment creditor, could not by taking an assignment put himself in position to enforce a moiety of the judgment, much less the entire judgment, against the defendant Moon without any action to' determine as between the two what proportion of the judgment, if any, the defendant Moon ought to' pay. Bartlett v. McRae, 4 Ala. 688; Iiogan v. Reynolds, 21 Ala. 56, 56 Am. Dec. 236; LePage v. Mc-Grea, 1 Wend. 164, 19 Am. Dec. 469; Booth v. Farmers’ & M. Bank, 74 N. Y. 228, 11 ITun, 258; Hinton v. Odenheimer, 4 Jones, Eq. 406; Dana v. Gonant, 30 Vt. 246; Hardy v. Norfolk Mfg. Go. 80 Ya. 404; Conrad v. Buck, 21 W. Ya. 396.</p> <p>They argued, among other things, that respondents, on paying the judgment, were entitled to be subrogated to Phillips’s rights. The right to subrogation is not limited to transactions in which there is a privity of contract, is not founded on contract, but is founded on equity, and is enforced for the protection of persons who, by paying the debts of others, should in good conscience be substituted to the place of the original creditor. Heuser v. Sharman, 89 Iowa, 355, 48-Am. St. Rep. 390; Liles v. Rogers, 113 N. O. 197, 37 Am. St. Rep. 627, -and note p. 631; Johnson v. Barrett, 117 Ind. 551, 10 Am. St. Rep. 83; Fmmert v. Thompson, 49 Minn. 386. Good conscience requires Moon to pay the entire debt, not only as between him and the sureties, but also as between him and Hunner. The circuit court so decided. See, also, Levy v. Marlin, 48 Wis. 198; Stewart v. Stewart, 90 Wis. 516; Allen v. G. & N. W. R. Go. 94 Wis. 93 ; Sims v. Mutual F. Ins. Go. 101 Wis. 586; Pingrey, Suretyship, sec. 165; Garter v. Jones, 5 Ired. Eq. 196, 49 Am. Dec. 425; Bank of Montpelier v. Dixon, 4 Yt. 587;; Hayes v. Ward, 4 Johns. Gh. 123; German Am. 8. Banh v. Fritz, 68 Wis. 390; Frank v. Fraylor, 16 L. E. A. 115.</p>

W. Helms, Judge. Action to foreclose mortgage given by defendant Burgha/rd Dangers under the following circumstances: Defendant Frederick Klopf and several others were interested as stockholders or… Held: as conclusion of law, that plaintiff was not entitled to judgment, 'and that the defendant was. Accordingly judgment was entered dismissing the complaint, from which plaintiff appeals.

<p>Appeal from a judgment of the circuit court for Olark -county: E. W. Helks, Judge.</p> <p>This action was commenced December 31, 1897, to recover till© amount due upon two promissory notes, — one for $1,500, executed by the defendant November 3, 1891, and the other for $485.88, executed by the defendant and another, severally, June 2, 1892, and which notes had been transferred to the plaintiff by the Clark County Bank before the commencement of this action. The defendant answered by way of admissions, denials, and counter allegations, and, among other things, alleged, by way of setoff and counterclaim, claims for services of himself and his firm of Ring & Youmans, as attorneys at law, at the special instance and request of the Clark County Bank while it owned the notes, in various matters, and also for the defendant’s services as president of that hauls. The plaintiff replied to the counterclaim by way of admissions, denials, and counter allegations to the effect that the services rendered were gratuitous, as president • of the bank.</p> <p>It is claimed on the part of the defendant, and there is evidence tending to prove, that one Levy Archer had, up to 1889, and for many years prior thereto, been president of the bank; that April 8, 1889, Archer died, and the defendant was then elected president of the bank, and held that office until 1895 ; that Archer drew a salary from the bank from February 1, 1881, of $800 per year; that, during the last two years that Archer was president of the bank, he drew large sums of money therefrom, and when he died 'he was indebted to the bank for such loans- in the sum of $29,000; that a meeting of the directors of the bank was held after his death, at which it appeared that he was then indebted to the bank in the amount last stated; that Bing wanted the bank to go into liquidation, but that the other directors opposed such action, and elected Bing as president of the bank, and also urged him to> become administrator and manager of the Archer estate, and to administer such estate, pay off all claims thereon, and the residue was to go toward the payment of the indebtedness to< the bank; that Bing acted as both president of the bank and administrator of the Archer estate; that in settling np the estate, which occupied from 1889 to 1897, it appears that Bing performed a larg'e amount of services therein, aggregating 535 days, and realized during that time about $35,000, and therefrom satisfied all outside debts, and also the debt due to the bank of $29,000. Po-r a further history of the litigation, see the report of this case on the former appeal. 106 Wis. 647, 82 1ST. W. 571.</p> <p>At the close of the last trial the jury returned a special verdict, consisting of answers to sixteen questions, to the effect (1) that the amount due on the two notes was $3,039.45; (2) that the services of Eing & Youmans in the Christie case were not performed under a contract with the bank that the bank should pay them for such services; (4) that the services of Bing before the referee in the Christie case after the dissolution of the firm of Eing & Youmans were not performed under a contract with the bank that it should pay him for such services; (7) that the value of the services- of Eing & You-mans in the Christie case, up to and including the last proceeding at Portage, was- $645 ; (8) that $90 was the value of Bing’s services in the Christie case after the dissolution of the firm of Eing & Youmans; (9) that Bing was not employed by the bank to- act as attorney in the suit of Prank W. Archer against the bank; (11) that the services of Bing as attorney in the case of Hewett against the bank were not performed under a contract with the bank that it should pay him therefor; (12) that the value of Bing’s services as attorney in the-Hewett case was $120; (13) that the services of Eing & You-mans in the collection of the Kirkland note were not performed under a contract with the bank that it should pay them therefor; (14) that the value of their services in the collection of the Kirkland note was $125; (15) that the services of Bing in settling the Archer estate were not performed under a contract with, the bank that it should pay him therefor; (17) that the seiwices of Bing as president of the bank were not performed under a contract with the bank that it should pay him a salary for such services; (19) that the services of Bing in procuring loans in 1893 and 1894 were not performed under a contract with the bank that it should pay him a commission therefor; (21) that the services of Bing in taking the appeal in the case of ITill & Kinzie against Archer were not performed under a contract with the bank that it should pay him therefor; (22) that the value of Bing’s services in the matter of that appeal was $120; (23) that it was not agreed at the time of the dissolution of the firm of Ring & Toumans that Bing should succeed to all the rights of that firm to charge and collect for the services theretofore rendered to the bank by that firm as attorneys.</p> <p>Thereupon counsel for the plaintiff consented to remit and did remit, from the $3,039.45 so' found due to the plaintiff on the two notes mentioned, $210, — being the $90 for the defendant’s services in the Christie case, and $120 for his services in the Hewett case, as found by the jury in answer to the eighth and twelfth questions; and the court thereupon ordered judgment in favor of the plaintiff for $2,829.45, with costs. From the judgment so entered accordingly the defendant appeals.</p> <p>as to defendant’s right to' compensation for his services, upon an implied contract, cited Wheeler v. Hall, 41 Wis. 447; Donovan v. Halsey F. E. Go. 58 Mich. 38, 24 N. W. 819; Morse v. Byan, 26 Wis. 356; KicMand v. Menasha W. W. Go. 68 Wis. 34; Burke v. M., L. 8. é W. B. Go. 83 Wis. 4101; Ten Eyck v. P., O. & P. A. B. Go. 74 Mich. 226, 41 N. W. 905; Wilier v. Grand Bapids- F. M. Go. 78 Wis. 543; Northwestern Fuel Go. v. Lee, 102 Wis. 426; Heinze v. Soulh Green Bay L. & D. G°• 109 Wis. 99-105; Sarda Clara M. Asso. v. Meredith, 49 Md. 389, 33 Am. Rep. 264; Gillis v. D., N. 8. & 8. B. Go. 34 Minn. 303; Hooker v. Hagle Bank, 30 1ST. Y. 83; Martin v. Fox & Wis. Imp. Go. 19 Wis. 580; Gorinne Mill} 0. & 8. Go. v. Toponee, 152 U. S. 405, 408; Buby Chief M. & M. Go<. v. Prentice, 25 Oblo. 4, 52 Pac. 210; 21 Am. & Eng. Ency. of Law (2d ed.) 907, 909.</p> <p>They cited Santa Glara M. Asso. v. Meredith, 49 Md. 389, 33 Am. Eep. 264; Henry v. Butland B. B. Go. 27 Yt. 435 ; Citizens’ Nat. Bank v. Elliott, 55 Iowa, 104, 39 Am. Kep. 167; Loan Asso. v. StonemetZj 29 Pa. St. 534; Kilpatrick v. Penrose F. B. Go. 49 Pa. St. 121; Sawyer v. Pawners’ Bank, 6 Allen, 207, 209; Peto v. Gloucester Nat. Bank, 130 Mass. 391; Eield, Corp. see. 181; Bakins v. American W. B. Co. 75 Mich. 568; Utica Ins. Go■. v. Bloodgood, 4 Wend. 652.</p>

<p>Aupeal from a judgment of the circuit court for Eau 'Olair© county: James O’ÜSTeell, Circuit Judge.</p> <p>Action to quiet title. The complaint is in the usual-form. Defendant pleaded title to the timber upon the land and an interest under a tax deed. The court, upon the evidence, found, on matters material to this appeal, in substance as follows:</p> <p>(1) October 12, 1893, and prior thereto and thereafter till the conveyance to plaintiff, the Peerless Iron & Land Company, a corporation, owned the lands in dispute, except as affected by transactions with defendant hereafter mentioned.</p> <p>(2) The corporation was organized in 1886, principally for the purpose of dealing in mineral lands and mining properties, prospecting and exploring for minerals, iron and other ores, ruining, smelting, and manufacturing minerals, granting and acquiring mining options and leases, and platting lands.</p> <p>(3) By the articles of organization the president, in conjunction with the secretary, was empowered to make conveyances, contracts and agreements' as directed by the board of directors, and perform such other duties as might be prescribed by the by-laws, and have general charge and supervisory control of the business and affairs of the company under and subject to the authority of the board of directors.</p> <p>. (4) No by-law was passed or' direction given to the president in regard to the transaction with the defendant hereafter-mentioned, prior to' the occurrence thereof.</p> <p>(5) The entire capital stock of the corporation was paid’ by a conveyance to it of certain lands.</p> <p>(6) C. T. Bowen was president of the corporation from August, 1886, to' the spring of 1899.</p> <p>(7) From October 12, 1893, the president as such sold' to defendant the pine, spruce and tamarack timber, twelve inches or more in diameter at the stump, on the lands in question, with the privilege to cut and remove the same at any time before June 1, 1899, the timber then remaining to revert to the corporation, the sale being made by a writing signed by the president and the secretary.</p> <p>(8) November 1, 1893, the board of directors first acted in reference to- the sale to defendant, at which time they ratified the same by a motion in the following words:</p> <p>“On motion the president and secretary were authorized and empowered to malee sale of the pine on Peerless land in town 43 — 3 east in Ashland county, Wisconsin, and all contracts heretofore made by them in reference to' such sale were ratified and confirmed.”</p> <p>(9) Defendant did not know of such action till after the commencement of this action. From the time he purchased the timber he performed the condition imposed upon him in regard to the land to pay one half of the taxes on the land during’ the existence of his interest in the timber.</p> <p>(10) When said sale was made the corporation had no money with which to- do business or pay. the taxes upon its lands. The money received upon the sale was used, so far as necessary, to pay back taxes on the lands, and the balance was-divided between the stockholders.</p> <p>(11) The taxes on the land, except one half paid by defendant, were allowed to go delinquent from 1894 to 1900, during which time defendant obtained a tax deed on one half interest in some of the land, which deed, however, is admitted to be void.</p> <p>(12) From about the year 1892 no business of any kind was done by the corporation. It in fact abandoned the purposes of its organization except as the same was attended to-by 'the president, Mr. Bowen, all of whose acts were tacitly assented to by the corporation during such time. Shortly before March 2S, 1896, defendant applied to the corporation, by letter addressed to its president, for an extension of time to June 1, 1902, to remove the timber from the land, upon condition of his continuing to pay one half of the taxes until the timber should be removed.</p> <p>(13) Bowen, acting as president, with the acquiescence of' one or more of the other directors, assented to such request, and by a writing extended the privilege to remove the timber till June 1, 1902. The extension was signed in the following form: “Peerless Iron & Land Company, by C. T. Bowen,”' though Mr. Bowen in fact acted as president of the corporation in so signing the extension, the neglect to add the title, “President,” being a mere inadvertence.</p> <p>(14) Had defendant not obtained the extension he would have removed the timber within the time allowed by his agreement with the corporation as it was originally made-lie omitted to do so, relying on the extension referred to.</p> <p>(15) November 20, 1899, tbe corporation conveyed tlie lands ip question by quitclaim deed to plaintiff for tbe sum ■of $150, be tben having full knowledge of tbe transactions of Mr. Eowen, as president of tbe corporation, with defendant.</p> <p>(16) Tbe corporation never in any way repudiated Bow■en’s transaction with defendant except by tbe act of making tbe quitclaim deed.</p> <p>(17) For a long time prior to tbe making of tbe extension, Bowen was beld out by tbe corporation to tbe public generally ■as having authority to do business of tbe character of that "transacted with defendant, and defendant relied upon bis appearance of authority in taking such extension and relying thereon.</p> <p>Upon tbe facts so found and others not necessary to be ■considered in regard to any point made upon tbe appeal, tbe court found as a matter of law that tbe Peerless'Iron & Land Company and its grantee, tbe plaintiff, were estopped from denying tbe authority of Bowen to make tbe extension of time for defendant to cut and remove tbe timber, and that be was tlie owner of tlie timber upon the land, of tbe character described in bis purchase of October 12, 1893, with the right to remove tbe same at any time before June 1, 1902. Tbe ■complaint was accordingly ordered dismissed with costs, and relief was granted defendant upon a counterclaim — pleaded in tbe answer, as regards tax claims on tbe lands, owned by him — of which no complaint is made on this appeal. Exceptions were duly filed to tbe findings of fact.</p>

<p>Ebrob to review a judgment of the municipal court of Milwaukee county: A. C. Brazes, Judge.</p> <p>Upon a joint trial of the plaintiff in error, Panline Palmer, and Marie Gordon, the two former were convicted of larceny from the person of Charles Love, committed in a saloon in Milwaukee on January 29, 1902,■ at a time when the four were carousing together; it being claimed, substantially, that said Love, either accidentally or by reason of interference of Collins, fell to the floor, and, as the latter pretended to assist him to arise, there was taken from him a pocketbook containing a considerable sum of money and certain rings, and that the money was retained by Gollins, and the rings divided between the two women. All three of the accused had made statements to the chief of police1, in the main denying complicity, but admitting certain facts constituting part of the complaining witness’s narrative. The judgment and sentence against him the plaintiff in error brings up on writ of error.</p>

<p>Appeal from a judgment of the superior court of Douglas county: ChaRles Smith, Judge.</p> <p>The plaintiff, a trading corporation at Superior, brought suit in justice’s court against defendant to recover $143.50 and interest for camp supplies alleged -to have been sold by it to the defendant in December, 1899. After judgment in the justice’s court, an appeal was taken to the circuit court, where the case was tried. The evidence showed that in the year 1899 the defendant, a married woman, owning a separate estate, was carrying on a logging business a few miles north of the village of Iron River under the name of Campbell & Co., the business being managed wholly by one O. H. Campbell, her husband; that beginning in June, 1899, she purchased supplies for her lumber camp from the plaintiff during the summer and fall, all of such purchases being made by her husband, O. H. Campbell; that at some time in the fall of 1899 the Campbell Lumber Company, a corporation, was organized, of which O. IT. Campbell was a stockholder and officer; that about the 25th day of November, 1899, Mrs. Campbell ceased to do logging, and leased all of her equipment and horses to the Campbell Lumber Company; that on the 27th of November, 1899, the Campbell Lumber Company opened an account with the plaintiff, and purchased supplies for their logging operations, and continued to make such purchases during the winter; that O'. IT. Campbell ordered all or nearly all of the goods bought by the Campbell Lumber Company; that on December 7, 1899, a car load of hay, amounting to $123.75, and on December 13th a bill of groceries, amounting, to $19.75, were sold by the plaintiff, as it claims, to the defendant in this action, but, as Hie defendant claims, to the-Campbell Lumber Company; that the goods were ordered by 0. IT. Campbell, who claims that prior to that time he had told Mr. Seavey (plaintiffs manager) that Campbell & Co. had quit business, and that all goods ordered after that time would be for the Campbell Lumber Company. On the other hand, Mr. Seavey denies that Mr. Campbell ever gave him any such notice, and claims that he supposed the goods were bought for the defendant. It appears that the goods were in fact shipped to Iron River, and were billed by the plaintiff to Campbell & Co., but that they were received and used by the Campbell Lumber Company. The jury returned a verdict for the plaintiff, and from judgment thereon the defendant appeals.</p>

<p>ERROR to review a judgment of the circuit court for Price county: E. W. Helms, Judge.</p> <p>Aepeal from an order of the circuit court for Price county r, James J. Dice, Judge.</p> <p>This action is quo warranto to determine the right of Elizabeth H. Fordyce to hold the office of county superintendent of' schools of Price county, Wisconsin. It was brought by the-relator, as a resident and taxpayer. The relation alleges that the defendant received the greater number of votes at the November election in 1900, and was given a certificate of election ; that she never was eligible to said office, and that her name was illegally placed on the official ballot; that on the first Monday in January, 1901, she unlawfully intruded into* said office, and has since exercised its functions and claims its emoluments. The defendant demurred to the relation on the ground that the relator had not legal capacity to sue.</p> <p>The suit was brought in January, and in February, 1901, the relator filed an affidavit of the prejudice of Judge Palish. The defendant’s counsel objected on the ground that the action was criminal in its nature and no change of venue was legally permissible. On June 15th Judge Palish made an order calling in Judge J. J. Dick to hear this and two other cases.. Judge Dice appeared and heard the demurrer, which he overruled. Defendant was given time to answer, and thereupon the parties, by their attorneys, entered into a written stipulation, that defendant should have until some date in November to answer, and that the action should be placed on the next calendar of the Price county circuit court, and stand for trial without notice. The term of court ended in December, 1901. The answer, among other things, set up that the defendant commenced an action in the year 1900 to- compel the county clerk of Price county to place her name, as a candidate for the office of superintendent of schools of said county, upon the official ballot, and thereafter .judgment was duly entered in her favor, requiring said clerk so to do.</p> <p>The Price county term of court began on the second Monday of December [December 9]. On December 10th Judge PARISH made another order, reciting that affidavits of prejudice had been filed in several cases, including this, and calling in Judge E. W. FIelms to> try the same. Judge Helms appeared, and proceeded to hold court. Defendant’s attorney entered many objections to bis jurisdiction, all of which were overruled and excepted to. The case was tried, and a verdict-rendered that defendant was guilty of intruding into said office as alleged in the relation. A motion for a new trial was denied, and judgment of ouster was duly entered. Thereafter defendant secured an order to show cause, signed by Judge Dick, why the order made by Judge Pakisii, calling Judge Helms to preside, and all the proceedings taken before Judge Helms, should not be vacated, etc. The matter was heard and taken under advisement. February 3, 1902, Judge Dick entered an order specifically denying each ground for relief claimed in the order to show cause. Due exceptions were filed, and the defendant took her writ of error to review the judgment, and appealed from the order of Judge Dick denying the motion to vacate. Both matters were argued together, and will be here considered in one opinion.'</p>

<p>Appeal from a judgment of tbe circuit court for Marathón county: W. C. Silvehti-ioeN, Circuit Judge.</p> <p>Tbis is an action of ejectment to recover a four-rod strip of land running across one forty acres of land owned by tbe plaintiff and across one comer of tbe adjoining forty acres, also owned by tbe plaintiff. Upon tbis strip tbe defendant 'Corporation bad constructed, and was operating, a logging railroad against tbe consent of tbe appellant. Tbe answer ad■mits tbe plaintiff’s title and right of possession when tbe action was commenced, but alleges that, after tbe action was •commenced, due proceedings were taken, under sec. 1299i, "Stats. 1898, by which tbe strip was duly condemned for a temporary logging highway, and sets out the proceedings in* full. This procedure was followed under the provisions of sec. 3074 of the statutes of Wisconsin. By stipulation the issues as to the validity and regularity of the condemnation proceedings and the validity of the statute under which the proceedings were had were first tried.</p> <p>Upon the trial it appeared that the defendant is a logging, and lumbering corporation, owning a large quantity of timber land in the town of Cleveland, which it desired to log, and also owning large sawmills and stavemills at the village-of Stratford, on the Chicago & Northwestern Railway, about-thirteen miles distant from the aforesaid timber lands. The-defendant desired to build a logging railroad to transport logs-from said lands to Stratford. It was not a physical impossibility to transport the logs to market by teams. There were ordinary public highways, which reached a part of the defendant’s lands, but it would cost considerably more to get out the logs this way. The respondent secured either leases or grants of the right of way for the whole thirteen miles from all the landowners except tire plaintiff, Woilman, and it proceeded and built its logging railroad over the whole distance, and across the plaintiff’s land against his protest. Thereupon this action was brought, and after it was brought the-respondent proceeded to condemn the four-rod strip over-plaintiff’s land alone, under sec. 1299i, Stats. 1898, and secured an order of condemnation from the supervisors, and tendered to plaintiff the damages awarded, which he refused to accept. The defendant operates the railroad in question as. a logging railroad to get logs from said timber lands to its mills. It is equipped with cars and engines. There are no* stations on the line, though there are stopping places, with-platforms, for taking on freight. Passengers have been carried free, and some freight, belonging to others than the petitioners, has been transported in car-load shipments for pay. Small parcels of freight have been carried free. There is no* highway on either side of the plaintiff’s land where the fo-ur-rod strip enters the adjoining lands. So far as the evidence-shows, the leases and grants which the defendant has obtained from property owners to lay and operate its highway do not authorize the building or operation of a public railroad over the strip, or the use of the strip by the public in any manner.</p> <p>The trial court concluded that sec. 1299-i was a valid act, and that the defendant lawfully occupied the strip with its; logging railroad, and the plaintiff appeals.</p>

<p>.School districts: Bonds: Limit of indebtedness: Evidence: Illegal action of school board: Ratification: Special meeting: Providing for tax: Presumption: Refunding bonds: Estoppel: Bona fide purchasers: Judgments: Res judicata.</p> <p>1. In proving that bonds of a school district were in excess of the constitutional limit of indebtedness, the best evidence of the territory comprised in the district is the order of the town hoard creating it, and the best evidence of the amount for which property was assessed is the assessment roll. The tax rolls are, at most, only secondary evidence of those facts.</p> <p>.2. A school hoard, on August 24th, agreed upon a compromise or settlement of certain claims against the district, issued school orders to carry it out, and borrowed money on behalf of the district to pay such orders. These acts were all without authority of law and void. A special district meeting to he held on September 1st was thereupon called and noticed pursuant to sec. 427, S. & B. Ann. Stats, (which required notices to he posted six full days prior to the meeting and, if a tax was to he voted, that three fourths of the legal voters should he notified, either personally or by written notice left at their residences, at least six days before the appointed time). At that meeting a resolution was adopted,'reciting and ratifying the action of the board, directing the hoard to borrow a certain sum for the purpose of “refunding said indebtedness” and to issue longtime bonds therefor, and providing for the levy of a tax to pay ' the annual interest on said loan. No other tax was voted at that meeting. Sec. 3, art. XI, Const., requires that before or at the time of the incurring of any indebtedness a school district shall provide for the collection of a direct annual tax sufficient to pay the interest as it becomes due and also to discharge the principal within twenty years. Held, that there could be no presumption that, at some other special meeting called and held before the meeting mentioned, there had been a compliance with said constitutional requirement.</p> <p>13. Whether the issuance of refunding bonds constitutes the incurring of' any indebtedness within the meaning of sec. 3, art. XI, Const., not determined.]</p> <p>■4. If the district itself had compromised the claims against it, it could, under sec. 474, S. & B. Ann. Stats., have borrowed the money to carry out such compromise only for a term not exceeding one year, upon voting a special tax of a sum equal to the loan, to be collected with the next levy, and could not for such purpose, under any circumstances, issue long-time bonds. Held, that it could not so ratify the illegal action of the school board as to authorize the borrowing of money under sec. 476a, S. & B. Ann. Stats., upon long-time bonds to refund the indebtedness so attempted to be incurred on its behalf, and that the bonds issued in pursuance of the resolution above mentioned were not in fact refunding bonds.</p> <p>•5. A purchaser of the bonds so issued who received, with the bonds, a certified copy of the minutes of the special district meeting, was chargeable with knowledge of the facts stated therein and with knowledge of the laws of this state as to the powers of school districts to borrow money and issue bonds, and hence with knowledge that the bonds were not and could not be refunding bonds. He was therefore, to that extent, not a bona fide purchaser, and the district is not estopped, as against him, to contradict a recital in the bonds that they were issued for the purpose of refunding its indebtedness under and pursuant to ch. 231, Laws of 1887 (sec. 476», S. & B. Ann. Stats.).</p> <p>>6. A certificate in the bonds that all the acts, etc., required to be done precedent to and in the issue of the bonds had been properly done, etc., in due form as required by law, is held to refer to acts required by the statute mentioned in the bonds (ch, 231, Laws of 1887), and not to be an express statement that constitutional requirements had been complied with.</p> <p>7. ’One who, having bought from G. & Co. bonds payable to bearer and unindorsed, claims that, even if he was not himself a bona fide purchaser, he succeeded to the rights of G. & Co. as bona fide purchasers and was entitled to the benefit of any estoppel in their favor, has the burden of showing that G. & Co. were such purchasers, the presumption being, under the circumstances stated, that they were the original payees of the bonds.</p> <p>‘8. A 'judgment is conclusive in a second suit between the same parties on the same cause of action upon all questions which might have been litigated in the first suit; but when the second, suit is upon a different cause of action the first suit is only conclusive upon the issues in fact litigated and decided.</p> <p>9. Where plaintiff sued upon four of a series of six school district, bonds and, after an answer had been put in alleging generally that the bonds were issued without authority of law and without consideration, obtained judgment because of defendant’s failure to appear at the trial, the question of the validity of the' bonds under constitutional provisions was not res juclioata in a suit upon the other two bonds.</p>

<p>Appeal from a judgment of the circuit court for Wal-worth county: Feahtk M. Fish, Circuit Judge.</p> <p>This is an action to recover the amount due on a promissory note purported to he executed by the defendant September 12, 1898, for $137, and interest at eight per cent., payable January 1, 1899, at the express office in Delavan, Wisconsin, to the order of J. D. Flemming, and by him indorsed in blank before maturity, and delivered to the plaintiff, so indorsed, in the due course of business and for a valuable consideration, before due and before the commencement of this action. The verified answer of the defendant denies the making, execution, and delivery of the note, and alleges, in effect, that he was induced by false and fraudulent representations to sign what was so represented to be, and what he at the time supposed to be, — a contract for a lightning rod, at an expense of $2, and a policy of insurance against loss by lightning.</p> <p>Upon the issues so joined, the canse was tried, and at the close of the trial the jury returned a special verdict to the effect: (1) That the note mentioned in the complaint was signed by the defendant, and delivered to Flemming, the payee; (2) that the note was indorsed by Flemming, and the plaintiff is the owner thereof, and (3) the same is dne and unpaid; (4) that the plaintiff became the lawful owner of the note before maturity, in due course of. business, in good faith, and for a valuable consideration; (5) that the defendant was induced to sign the note in question by reason of false and fraudulent representations of the payee or his agents as to the character of the paper by him signed; (6) that at the time of the signing of the note the defendant did use ordinary care and caution to ascertain the exact nature of the paper by him signed at that time; (7) that they assessed the plaintiff’s damages at $156.18. From the judgment entered upon such verdict in favor of the defendant, dismissing the action and for costs, the plaintiff appeals.</p>

<p> Life insurance: Benefit associations: Vested interest of beneficiary: Evidence: Falsity of statements in application: Declarations of assured. </p> <p>1. The beneficiary in a benefit certificate issued by a fraternal 'order has so far a vested interest therein that the prior declarations of the assured are not admissible in evidence to prove falsity of the statements in the application, unless they were made at or about the time of the application and were so closely related with and explanatory of some act or fact showing the then condition of the health of the assured as to be a part of the res gestee.</p> <p>2. Declarations not admissible under the above rule may be admissible to prove prior knowledge on the part of the assured of the falsity of some statement in the application, where such prior knowledge is a material fact and there is substantive evidence of the falsity of the statement.</p>

<p> Sale on credit: Insolvency of vendee: Bight to insist on payment in cash: Remedies for breach by vendee: Resale by vendor to liquidate damages, how made? Notice: Measure of damages: Waiver of vendor’s breach as to time of delivery: Rescission byvendee. </p> <p>1. A sale of property, nothing being said to the contrary, is presumed to be for cash on delivery thereof.</p> <p>2. An executory contract for the sale of property on credit, contemplating that the vendor will part with control of the subject thereof in advance of obtaining pay therefor, is presumed to be on condition that the executory vendee is solvent and will so continue.</p> <p>3. In the circumstances- stated in the last preceding paragraph-,, if the vendee becomes insolvent while the subject of the transaction remains under the control of the vendor, though in transit to the former and regardless of whether the title has passed to him or not, the vendor may detain the property, remove from the contract the element of credit, giving due notice thereof to the vendee, and insist upon payment for the property before it passes under his control.</p> <p>4. Executory contracts for the sale of property are presumed to have embodied in them the features mentioned in the last two preceding paragraphs.</p> <p>5. In case the element of credit in an executory contract for the sale of property is removed because of the insolvency of the vendee, the contract stands in all respects the same as any sale for cash on delivery; and if it is breached by neglect or refusal of the vendee to consummate the transaction by paying the price agreed upon and accepting the property, the vendor may treat the contract as broken and thereupon proceed by any one of the following ways to redress the wrong: He may store the property for the buyer and sue for the purchase price; or may sell the property and recover any deficiency resulting; or may keep the property as his own and recover the difference between the contract price and the market price at the time of the breach and at the time and place of the delivery.</p> <p><5. In exercising the right of the vendor to his choice of remedies in the circumstances stated in the last preceding paragraph he is not burdened by any condition that he shall consult the interests of the vendee.</p> <p>7. If the second remedy mentioned be adopted, the sale may be made at auction or in a private way, as suits the convenience or desire of the vendor, so long as the way chosen is calculated to produce in money the full market value of the property. No notice of the time and place of sale is necessary, but notice of the intention to sell should be given to the end that the execu-tory vendee may have a reasonable opportunity to comply with his contract and protect his interests by paying for the property as agreed upon.</p> <p>S. The element of credit being removed from an executory sale contract under the rule's before stated, subsequent ability of the executory vendee to take and pay for the property does not restore such element. If the. modified contract is broken by neglect or refusal of the vendee to comply therewith, the only way to prevent the vendor from enforcing his remedy for the breach by selling the property is by tendering to him at the proper place the full amount of the purchase price.</p> <p>S. If the vendor, in an executory contract for a sale and delivery of property by a given time, upon credit, breaches the same as to the element of time, and the vendee nevertheless insists upon the contract being consummated, but in the meantime has become insolvent, such insistence so far waives the breach as to prevent the vendee from subsequently rescinding the contract on account of such breach, and does not militate against the vendor’s right to modify it as to the element of credit because of the vendee's insolvency, notwithstanding such insolvency-may he in whole or in part referred to such breach.</p> <p>10. If the vendee upon credit is required for cause to take the subject of the transaction and pay therefor upon delivery thereof, and refuses to do so, neither the remedy chosen by the vendor for the breach nor the manner of enforcing it gives the vendee any right to rescind the contract.</p> <p>11. When, in the circumstances suggested in the last preceding paragraph, the vendor elects to stand upon the contract and demand damages for the breach and to sell the property, the primary purpose of the sale is to liquidate his damages in a manner binding on the vendee, and secondarily, to recover his loss so far as the proceeds of the sale will suffice for that purpose. Irregularities in making the sale do not affect his right to recover for the vendee’s breach. It only bears on the weight of the result of the sale as evidence of the market value of the property and the amount of the vendor’s damages.</p> <p>12. If the executory vendee in a contract for the sale of property refuses to consummate the same, the property remaining under control of the vendor, the latter’s measure of damages is the difference between the market value of the property at the time-of the breach and the contract price at the place for delivery. A sale under proper conditions establishes the market value. If a sale is made, not under such conditions, such value must be-established in some other way. If the vendor sells the property and uses all reasonable efforts to secure the best price obtainable therefor, or obtains a fair price, it settles the question of the market value, and incidentally the amount of the damages.</p> <p>13. An executory vendor, having demanded that the purchaser take-the property and pay therefor upon delivery, and the latter in response to such demand having offered to pay a less sum than-the amount due, and not changed his position down to the time-of the sale of the property by the vendor, he may be regarded as having refused to pay such amount.</p> <p>14. A sale of property for the purpose of liquidating damages for a breach of contract must be for cash. Therefore, a sale in that way; the vendor rejecting a larger offer for the property on credit, does not militate against the sale being evidence of the market value thereof.</p> <p>15. The executory vendor of property does not forfeit his right to sell the same for the purpose of liquidating his damages for- a breach on the part of the vendee in failing to take and pay therefor upon delivery, by refusing the vendee opportunity to-inspect the property, if, at the time thereof, the latter is standing upon a refusal to take the property and pay therefor according to contract.</p> <p>[Syllabus by Maeshaul, J.]</p>