Volume 117 — Wisconsin Reports

<p>Appeal from a judgment of the circuit court for La Crosse county: J. J. Eruit, Circuit Judge.</p> <p>Plaintiff, a manufacturer, about December 31, 1900, sold to the defendant, a wholesale dealer, a quantity of crockery, at the original price of $1,350.27. Upon its arrival, about January 15, defendant found the same characterized by a defect known as “crazage,” apparently consisting in very small cracks appearing in the external glaze — a trouble which, as testified on behalf of defendant, results from bad chemical combination or imperfect firing, and which develops more and more if such condition exist. Defendant immediately wrote the plaintiff of this fact, and sent some samples. The plaintiff replied promptly* admitting the defects, and requesting careful inspection to be made, and all defective pieces to be thrown out and charged up to it, together with the expense of inspection. Thereupon, on January 21, 1901, the defendant wrote, expressing its belief that the bad condition was greater than would then appear by inspection, and that the injury to it would be very serious from trying to handle such imperfect crockery, and declaring that it preferred to fix a price which it would pay for the crockery and take its chances on its being profitable or unprofitable; refusing otherwise to accept the consignment. It fixed the price which it was willing to give. To this proposition the plaintiff immediately, on January 23d, replied by acceptance; the new price being $305.93 less than the original invoice. The defendant on February 2d remitted $544.34, and on April 10th, $250; promising on the last occasion to send the remaining $250 the 1st of May; at the same time declaring that the new contract had turned out unprofitably to it, as the crazage had already amounted to more than the reduction and it was having new complaints. Failing to remit the balance as promised, it refused plaintiff’s demand to pay it, and suit was brought, laying the cause of action upon the written contract closed by acceptance of defendant’s offer of the reduced price.</p> <p>The answer admitted a purchase on December 31st, accom-jjanied by warranty, and subsequent credit of $305.93 on account of faulty condition, and counterclaimed for breach of the warranty of quality, resulting in damages aggregating some $1,700.</p> <p>At the close of the evidence the court directed a verdict for the plaintiff for tbe $250 balance, with interest; upon which, after motion for new trial, judgment was entered, from which the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Portage county: John Goodland, Judge.</p> <p>This is an action in equity brought to perpetually enjoin, as a nuisance, the erection of a planing mill in the city of Stevens Point. The complaint, after alleging the corporate character of the defendant, alleges that the plaintiff owns two lots in the residence portion of the city of Stevens Point on which are located his dwelling house and barn, and that said dwelling house has been occupied by plaintiff and his family as a homestead for more than fifteen years last past; that on May 1, 1900, the respondent commenced to construct a large planing mill on the opposite side of the street from the plaintiff’s house and less than ninety feet distant therefrom; that said mill was being constructed for the purpose of dressing and matching lumber and manufacturing the same into flooring, siding, etc.; that such mill was to be operated by steam generated and kept up by the burning of shavings, sawdust, and refuse from the mill on the premises, with the engine house and boiler located next to plaintiff’s residence and only ninety feet 'therefrom. The complaint then proceeds as follows :</p> <p>“Plaintiff further alleges that said planing mill is being so constructed so as lumber shall be hauled thereto by teams, and unloaded into said planing mill from Crosby avenue, right opposite and near to the residence of this plaintiff, thereby causing that part of the planing mill next and toward the residence of this plaintiff to be open. Plaintiff further alleges that defendant is so constructing said building as and for a planing mill, with the intention of operating the same solely as a planing mill when completed. Plaintiff further alleges that the construction and operation of said building as a planing mill will render the property of this plaintiff practically valueless as a residence; that the operation of a planing mill at said point will create an immense amount of steam, dust, dirt, and smoke, which will penetrate into the house of this plaintiff, thereby rendering it unfit as a habitation for plaintiff to live in, and that the great noise that will necessarily be created by the operation of said planing mill will be a great nuisance to this plaintiff, as well as a great damage to him, because it will render his home undesirable and unfit as a place of residence, and that the maintenance of said manufacturing plant as a planing mill at said point, and the keeping up of steam there, by shavings and sawdust, will greatly enhance the risk of fire to the plaintiff’s dwelling, and thereby increase the insurance, as well as -the danger of loss to the plaintiff by reason thereof; that the operation of said planing mill will necessarily cause this plaintiff to close up his said house, all the windows and doors, at all times, in order to prevent the steam, smoke, dust, and dirt therefrom from coming into his house in great quantities, and that it will be impossible for him or his family to hang out any clothes in the yard, or to use his yard for any such purposes, or, in fact, to live comfortably in said house or use the same for a dwelling house; . . . that the business of said defendant is the manufacture of lumber, and it is a large manufacturer of lumber, and that it expects and intends, as this plaintiff is informed and verily believes, to use this planing mill in planing all the lumber that it manufactures and is necessary, or their business requires, should be run through a planing mill. Plaintiff further alleges that the erection and maintenance and operation of such planing mill will be a nuisance to this plaintiff, and will be a nuisance as located in the residence portion of said city of Stevens Point, and that it will work an irreparable injury to this plaintiff, cause interminable litigation, and that the injury that will be caused to this plaintiff will be continuous and constantly recurring from day to day during the time that such planing mill is in operation, and while it remains at the place where located, and that this plaintiff has no adequate remedy at law; and that the injury which this plaintiff will suffer is not susceptible of adequate compensation in damages at law.”</p> <p>The complaint also alleges the giving of notice to the defendant, prior to the commencement of the construction of said mill, that the same would he a nuisance to the plaintiff and that an action to restrain the same would be commenced.</p> <p>A temporary injunctional order was applied for and denied. The defendant answered the complaint, and when the case came to trial the defendant interposed a demurrer ore terms. The bill of exceptions states the action upon said demurrer as follows:</p> <p>“The 'court, having heard the said attorneys, then rendered its opinion, deciding said objection in effect as follows: That the court was of the opinion that the decision of this court heretofore made, denying an injunction in said cause, was res adjudicata, but that he did not base his ruling upon said objection on said proposition, but upon the proposition that the said action was an action brought to1 abate a planing mill, which was not a nuisance per se, and that the action having been brought before the said mill was constructed and in operation, and being brought in contemplation and in expectation only that said mill would be a nuisance) the court held that the objection was well taken, and. that said complaint did not state a cause of action.”</p> <p>Thereupon judgment was entered dismissing the complaint, and the plaintiff appeals.</p>

<p>(1-3) Waste: Removal of Umber: Measure of damages: Evidence. (4) Tax titles: Offer to pay tax or to redeem.</p> <p>1. The measure of damages for waste by removing timber from land is the diminished value of the land, not the value of the timber in its manufactured State.</p> <p>2. To show the diminished value of land by reason of the removal of timber, evidence of the market value of the manufactured products of such timber is admissible in connection with evidence as to the reasonable cost of manufacturing and marketing such products.</p> <p>3. The evidence in this case, as to the value of timber removed from land which was of no value except for the timber, is held to sustain a verdict assessing damages for waste at $560.</p> <p>4. If a person offers to pay to the proper officer the tax upon certain land for a particular year, or to redeem the land from a tax sale for such tax, and the officer informs him that there is no tax to be paid or tax sale to redeem from, and he in good faith relies thereon, a subsequent tax deed based on such tax will not pass title.</p>

<p>Appeal from a judgment of the circuit court for Waupaca county: J. J. Fbuit, Judge.</p> <p>In 1884, Albert Gerndt and the defendant together purchased a stump puller at price of $150, for which they gave their three joint and several notes of $50 each, the first two of wbicb were paid by them equally. The last note, falling due January 1, 1886, was paid entirely by the defendant in 1889. By the terms of the note the title was reserved to the seller until completed payment of the last note. Upon purchase the machine was taken into the possession of Albert Gerndt for a couple of years, and then delivered to the defendant, who retained possession ever after until its sale. In 1892 the plaintiff purchased his brother’s (Albert Gerndt’s) interest in the machine by verbal agreement. There is no evidence that he either then or ever paid any part of the purchase price, or that any delivery, actual or symbolical, was made. Plaintiff notified defendant of the fact of his purchase. In 1899 the defendant sold the machine to a stranger for $75, conceded to be its true value. Thereafter, before commencing suit, plaintiff made demand on the defendant for his interest, and thereupon commenced suit, alleging half ownership in the machine, conversion thereof by the defendant, and value of $75, and demanded judgment for $37.50. The only controversy in the evidence was upon plaintiff’s statement that he offered in 1896 to pay the defendant one half of what he had paid in satisfaction of the last $50 note, but was refused any recognition. At the close of the evidence each party moved for direction of a verdict, and the court, upon plaintiff’s motion, directed a verdict in his favor for $37.50 and interest, for which judgment was rendered, from which the defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.</p> <p>Tbis is an action in equity to remove a cloud on tbe title to personal property. 'Tbe complaint alleges tbe ownership by Edward Lashua of two borses and a number of farm implements exempt from seizure and sale upon execution, and the execution of a chattel mortgage thereon November 23, 1900, by tbe plaintiff Edward to tbe defendant in tbe sum of $156.24; also tbe subsequent due filing of said mortgage in tbe proper office; that the plaintiff Elizabeth is tbe wife of tbe plaintiff Edward, and a member of bis family; and that she signed said mortgage, but that her signature was not witnessed by two subscribing witnesses, by reason of which fact said mortgage is claimed to be void, under see. 2313, Stats. 1898.</p> <p>Tbe defendant answered, in substance admitting that Eliz-aheth’s signature was not witnessed by two witnesses, but alleging that at tbe time of tbe execution of tbe mortgage tbe plaintiff Edward was indebted to tbe defendant upon -unsecured notes to tbe amount of $56.24, and applied to tbe defendant to loan him an additional $100, in order that be might pay and discharge two valid chattel mortgages then existing upon tbe personal property in question, amounting in tbe aggregate to $100, and agreeing to secure tbe defendant by a new mortgage duly executed by himself and wife for tbe whole sum upon said property; that tbe defendant agreed to tbis arrangement, and that Edward signed tbe mortgage, and took it to bis home, at some distance, to obtain bis wife’s signature, and returned with such signature apparently properly witnessed, whereupon tbe defendant advanced to Edward said sum of $100, and surrendered Edward’s notes for $56.24; that on tbe 8th day of October, 1901, the defendant offered to release said new mortgage and return the note given therefor on condition that the plaintiffs return the money received and the old notes, but that plaintiffs refused to comply with the request.</p> <p>By way of counterclaim the defendant pleaded the same facts, and also alleged that the said sum of $100 so borrowed was in fact used by 'Edward to pay and discharge said previously existing chattel mortgages, and the defendant prayed that he be subrogated to the rights of the prior mortgagees. The plaintiffs replied to the counterclaim, denying that the previous mortgages were valid liens upon the property, and also denying that the moneys received from the plaintiff were in fact used to satisfy said previous mortgages.</p> <p>Upon the trial both parties moved for judgment on the pleadings, and the plaintiffs demurred ore tenus to the counterclaim, and the court granted the plaintiffs’ motions on the ground that no facts sufficient to constitute a defense or counterclaim were stated in the answer. Judgment being rendered for the plaintiffs, the defendant appeals.</p> <p>To the point that the two former mortgagees, to whose rights subrogation is sought, were necessary parties to the issues raised by the counterclaim, and hence the counterclaim was not a proper one, they cited Aultman, M. & Go. v. Bishop, 53 Neb. 545; 20 Ency. PL & Pr. 997; Harris v. Watson, 56 Ark. 574; Hoots v. Bicheson, 115 Ill. 431; Logan v. Hale, 42 Cal. 645; McGonihe v. Hollister, 19 Wis. 269.</p>

<p>(1) Contracts: Construction: Forfeitures. (2-5) Life insurance: Failure to pay note: Self-executing forfeiture clause: Vested interest of beneficiary.</p> <p>1. In construing a contract the court cannot, in order to prevent a forfeiture, go farther than a fair construction of the language used will permit.</p> <p>2. A life insurance policy provided that “failure to pay any premium or note or interest when due” should terminate the contract and forfeit all payments to the company. It did not provide for the giving of premium notes, hut for cash payments only. Held, that the word “note” did not refer only to premium notes, but meant any note given to the company either as evidence of indebtedness for the insurance or as payment therefor.</p> <p>3. An application for change of an insurance contract stated that, in consideration of the waiver of cash payment of the amount the assured was required to contribute to the reserve, he aclmowledged a lien for that amount against the policy, “ten per cent, of said sum being paid with this application, and the residue, or so much thereof as shall be unpaid at my decease, with any unpaid interest, to be deducted from said policy upon its maturity.” Ten per cent, of said sum was not paid in cash as recited, but the assured gave his note therefor. The policy provided that “failure to pay any premium or note or interest when due will thereupon terminate this contract and insurance.” Held, that failure to 'pay the note given as stated terminated the contract.</p> <p>4. Where a note given upon an insurance policy is payable at a particular place and the contract provides that failure to pay the note according to its terms shall forfeit the policy, it is sufficient to make the forfeiture clause operative that the note be at the place designated at the proper time so that the assured may pay it, and that he fail to do so. No demand or notice or declaration of forfeiture is necessary.</p> <p>5. The interest of a married woman as beneficiary under a policy of life insurance is subject to the provisions of the contract in respect to forfeiture by acts of the assured.</p>

<p>Appeal from a judgment of the circuit court for Wood county: Chas. M. Webb, Circuit Judge.</p> <p>Action for personal injuries suffered by plaintiff at the intersection of defendant’s north main track with Center avenue, in the city of Stevens Point, on Sunday, November 5, 1899. Evidence tended to show a situation, so far as it can he described in words, as follows:</p> <p>Center avenue, which lies some 400 feet east of defendant’s station, is crossed by two main tracks running east and west, and fourteen feet apart between centers. West of Center avenue, these two main tracks constitute substantially all of defendant’s railroad material to tbe case, except for a cross-over switch between them, to be hereafter mentioned. Commencing in Center avenue, and thence toward the east, there diverge from these two main tracks, like the sticks of a fan, a series of switches or side tracks, which again repeatedly subdivide, constituting a yard covering many acres, and containing a large number of tracks, so that just at the crossing in question is what may be termed the “throat of the yard,” across which switch engines pass with great frequency in the process of moving about cars from one part of the yard to another, or in making up trains. About 140 feet west of the center of Center avenue, towards the station, is a crossover switch connecting the north with the south main track, thus enabling cars or engines to pass from one to the other; its junction with the south track being 268. feet west of the street center.</p> <p>-On the day in question there were standing four box cars upon the north main track, the easterly end thereof extending a few feet onto a switch there diverging northward from said track. The east end of these cars was about the center of Center avenue. The west end was about 145 feet westward, and extending a few feet west of the point where the crossover switch commenced to diverge toward the south main track. The plaintiff, returning from church at about noon, went southward on the east side of Center avenue, intending to cross the tracks and go on further southward, to his residence. The four box cars above mentioned were so located that they obscured from a foot passenger the cross-over switch and any train which had entered thereon from the westward far enough to make its divergence from the south main track perceptible when such foot passenger was at any point nearer than about thirteen to fifteen feet north of the cars. As plaintiff went southward on Center avenue, and about 150 feet 'before reading the cars, he looked and observed them, and observed the situation about them; saw that there was no train or engine upon the north track to the westward of them, but did observe a switch engine with some cars moving about on the south main track. He passed on, with no very-definite further observation, though, of course, with his face directed toward the tracks, until he reached a point some fifteen to twenty feet north of the cars, just beyond which the sidewalk terminated, where he left the sidewalk, but passed on southward in the street toward the track. When about eight feet from the north rail of the track on which the cars stood, he stopped, looked in both directions, and listened. He could then see the north main track upon which the cars were situated, at least as far westward as the depot, about 400 feet away, and there was no engine or train there. He thinks he heard the puffing of an engine in that direction, but, if so, that engine was on the south main track, as he had already observed. Immediately south of the track on which the cars stood was the flagman, whose custom it was to make deterrent signals if there was danger in crossing. He made no signal, and plaintiff proceeded to cross the track about ten feet east of the east end of these cars, when, just as he was midway of the track, the flagman shouted to keep back, and at the same moment the cars were thrown against him with great violence, and he was thrown down and injured. The movement of the cars was occasioned by the fact that the switch engine which had previously been upon the south main track had at that moment passed therefrom up the cross-over switch and come in violent contact with these standing cars. It came at a speed of about twelve miles an hour, and with such violence as to throw the body of one of the cars off the trucks, and by its impact to drive these four cars a distance of some 140 feet. It also came without the ringing of the bell. At the time that plaintiff stepped off of the sidewalk into the street to go towards the crossing, as above stated, that switch engine, Raving one car in front and east of it, Rad just Racked up westward on tRe soutR track to a point beyond tRe junction of tRe cross-oVer switcR witR tRe soutR track, and migkt Rave Reen seen by plaintiff in tRat position. It eitRer was tRen standing still, or just commencing its movement eastward. In eitRer event, it could not Rave been perceived tRat it was turning onto >tRe switcR to cross from tRe soutR track to tRe one which plaintiff was about to cross; and it is practically establisRed by all evidence tRat, before tRat fact could Rave been perceptible, plaintiff must Rave passed onward so near to tRe standing cars tRat they obscured tRe approacRing engine from Ris sigRt.</p> <p>TRe foregoing situation and narrative of events in many respects is uncontroverted, but in all respects Ras evidence at least tending to its support. TRe jury found by a special verdict of sixteen questions, tRat tRe defendant was chargeable with negligence of its employees in running tRe engine ■at an unreasonable and dangerous speed, and in failing to ring tRe bell, and in tRe flagman’s failure to give any warning to prevent plaintiff from attempting to cross; tRat sucR negligence was tRe proximate cause of tRe plaintiff’s injury; tRat plaintiff was not guilty of contributory negligence. Whereupon, after motions to change tRe answers to several of these questions and render judgment in favor of the defendant, the court entered judgment thereon in favor of the plaintiff for the amount of damages found, from which the defendant appeals.</p>

<p> Highways: Injury from, defect known to plaintiff: Temporary forgetfulness: Contributory negligence: Presumptions: Court.and jury: Instructions: Credibility of witnesses. </p> <p>1. In an action for injuries caused by a defective highway, where it appeared that plaintiff was riding in a wagon with her husband at night, holding a baby in her lap, and talking with her husband, it was a question for the jury whether she was negligent in temporarily forgetting the existence of the defect, of which she had knowledge.</p> <p>2. It appearing that, although plaintiff well knew the defective condition of the highway, she was not holding on to anything as she rode, and it not appearing that her husband, who was driving, had such knowledge of the highway or knew how she was riding, the question of plaintiff’s own contributory negligence, independent of negligence on the part of the husband, should have been submitted to the jury.</p> <p>3. An instruction that if the husband knew of the defective condition of the road, that fact did not necessarily make him negligent as matter of law, should have had coupled with it the correlative idea that such fact raised a presumption of negligence which must be rebutted by showing a reasonable excuse ■ for his lapse of memory which resulted in the injury.</p> <p>4. There being a sharp conflict in the testimony of two witnesses as to service of a notice of plaintiff’s injury, it was an invasion of the province of the jury for the court to charge, in effect, that there was doubtless an honest mistake and not false swearing, and to suggest way^ in which the difference in testimony might be accounted for on the basis of honest mistake.</p>

<p> Specific performance: Land contract: Discretion. </p> <p>In an action to compel specific performance of a contract for the sale of land, it appearing, among other things, that there had been “sharp practice” on the part of plaintiff, a real-estate broker, in obtaining the contract from defendant without disclosing the fact that he had already contracted to sell the property at a considerable advance, while defendant supposed plaintiff was acting simply for bis (defendant’s) interest, and that plaintiff without defendant’s knowledge and without right had taken possession of the‘property and collected rents, it is held that the trial court rightly exercised its discretion in refusing to decree performance.</p>

<p>Appeal from a judgment of tbe circuit court for Pierce county: James O’Neill, Judge.</p> <p>Tbe defendant, on December 23, 1897, recovered judgment against tbe plaintiff for $595.81, which judgment became paid by an accord and satisfaction about November 7, 1898, under an agreement to receive $300 and a release of tbe judgment plaintiff from certain claims of tbe judgment defendant. Tbe validity of that accord and satisfaction was denied by tbe present defendant, and a suit in equity to declare its validity and tbe satisfaction of tbe judgment was commenced January 9, 1899, which, after an appeal to this court, decided March 20, 1900 (106 Wis. 282, 82 N. W. 137), resulted in a judgment as prayed. A few days before commencing tbat suit, namely> December 21, 1898, plaintiff served upon defendant a written demand tbat be satisfy of record sucb paid judgment, wbicb was repeated more formally on August 2, 1899, but defendant did not satisfy tbe judgment. Tbe present action, commenced October 9, 1900, was to recover tbe statutory penalty of $50, and actual damages resulting from defendant’s refusal to satisfy sucb paid judgment. After trial, disclosing substantially the foregoing facts, tbe court directed a verdict in favor of tbe plaintiff for tbe statutory $50 penalty and $260.49 as damages, composed mainly of tbe plaintiff’s expenses in prosecuting tbe suit in equity to obtain cancellation. Erom judgment upon said verdict tbe defendant appeals.</p>

<p> Contracts: Rescission for fraud: Prior offer to restore: Vendor and purchaser: Interest: Amendment of pleading and findings: Discretion. </p> <p>1. An action to rescind a contract on the ground of fraud may he maintained although there was no prior offer to restore what plaintiff received thereunder. The failure to make such offer affects, at most, the question of costs, and where it is apparent that it would have been rejected if' made, costs may properly he allowed to the plaintiff.</p> <p>2. The vendee in a land contract is entitled to have it rescinded for fraud of the vendor in pointing out other land and representing it to be that described in the contract, without proof of actual damage.</p> <p>3. Where a land contract is rescinded for fraud of the vendor, the vendee is entitled to interest on his payments from the time they were made.</p> <p>4. Two or three months after the filing of findings and entry of judgment the court ordered that, on payment of $5 costs, the complaint he amended so as to conform to the proofs and that a certain finding he added which had heen actually found hy the court from the undisputed evidence hut inadvertently omitted from the written findings. Held,, not an abuse of discretion.</p>

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

<p>Appeal from an order of tbe circuit court for St. Croix county: E. W. Helms, Circuit Judge.</p> <p>Action to restrain tbe county treasurer of St. Croix county from paying money claimed to bave been illegally appropriated by tbe county board.. Plaintiff commenced tbis action as a taxpayer on bebalf of bimself and all others similarly situated. In addition to stating tlie facts respecting his interest in the subject-matter of the suit, and those necessary to show that each of the defendants was a necessary or proper party to the litigation, — including the county hoard, the chairman of such board, the county treasurer and county clerk, — the following matters were, by appropriate allegations, pleaded:</p> <p>At a meeting of the county board of St. Croix county in the year of 1901, a claim by Mary Pederson against such county was presented for consideration by the board. The claim was based on the following statement therein contained: Claimant, on November 9, 1900, was in the employ of the sheriff of St. Croix county as a servant. She resided at his official residence on the grounds owned by the county and used as a location for its court-house, sheriff’s residence and county jail. There was at such time a ditch thereon about ten feet deep immediately in front of the outside door. at the south side of said residence. It was constructed by authority of a committee of the county board. It was left open and entirely unguarded on the night of said November 9th. Claimant, while about her regular duties, and without knowledge of the existence of the ditch, and wholly through the carelessness of those responsible for the situation, fell into the ditch and was thereby severely injured. The nature of the injury was described. The damages were laid at $5,000. The claim was duly verified. It was considered by the board and formally disallowed. The next day, without such action having been reconsidered, the board adopted a resolution as follows:</p> <p>“Believing that the best interest of the county be obtained by avoiding litigation, also that justice tempered with charity regardless of legal technicalities shall prevail, therefore be it,</p> <p>“Resolved that the county treasurer be instructed and is hereby authorized to pay out of the county treasury the sum of $500 to Mary Pederson for injuries sustained by falling into an uncovered excavation on the courthouse grounds after dark on the 9th day of November, 1900,</p> <p>‘‘Provided 'that her legal representative shall first file with the county treasurer a legal agreement that he and his associate attorney shall not receive a sum aggregating more than $25 from Mary Pederson in this case, also that the said Mary Pederson through her attorney shall furnish in writing to the county treasurer a legal release to St. Croix county for all damages sustained by reason of the above mentioned injuries, thus relieving St. Croix county of any further liability in the above matters.</p> <p>“This shall be considered as charity rather than as a settlement of a legal liability of St. Croix county.”</p> <p>The chairman of the county board and the county clerk threaten to draw and issue a county order in compliance with such resolution, directing the treasurer to pay the appropriation of $500. The county treasurer threatens to pay the order if one shall be presented to him, and unless enjoined by the court such threats will be carried out. A permanent injunction was prayed for against the doing of the acts threatened, and temporary relief was asked preserving the status quo pending the litigation.</p> <p>Defendant Mary Pederson, by her attorney, demurred to the complaint, first, for defect of parties defendant in that it appeared upon the face of the complaint that the claimant’s attorneys were interested in the subject of the,litigation and would be affected by the result; second, that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled.</p>

<p>(1, 2) Trial: Findings: Duty of court: Reversible error. (3-5) Liens: Construction of statutes: Subcontractor or employee?</p> <p>1. Upon trial of a question of fact by tbe court the parties are entitled, under sec. 2863, Stats. 1898, to a finding of fact upon each material issue raised by the pleadings, and to findings in reasonable detail covering all matters as to which there is a reasonable controversy respecting whether they have a material bearing upon the rights of the parties or not; and are entitled, also, to the decision of the trial judge specifically upon the minor questions of law applicable to the facts found upon which the ultimate conclusion of law must rest.</p> <p>2. Failure to make findings and conclusions as above indicated is error, but will not work a reversal unless it appears probable that the substantial rights of the unsuccessful party may thereby have been injuriously affected.</p> <p>3. Secs. 3314, 3315, Stats. 1898, giving a lien to every “principal contractor,” “subcontractor of a principal contractor,” or “employee of either,” who performs work, etc., for, in, or about the erection of certain structures, provides for three distinct classes of persons, and the terms used should be construed accordingly. •</p> <p>4. Plaintiff agreed with a subcontractor to do all the hauling necessary for the execution of the latter’s contract, the amount of such hauling being very large and necessitating the employment by plaintiff of a large number of teams and men. The agreement did not bind plaintiff to any personal service. Held, that he was not an employee of the subcontractor, but was a subcontractor in the second degree, not entitled to a lien under secs. 3314, 3315, Stats. 1898.</p> <p>5. The fact that plaintiff’s servants acted more or less under the direction of the subcontractor, who gave them orders as to where materials should be unloaded, etc., did not make the plaintiff an employee of the subcontractor.</p>

<p> Security for costs: Discretion: Dismissal of action. </p> <p>1. Under sec. 2942, Stats. 1898 (giving power to require plaintiff to give security for costs “in all cases where it shall appear reasonable and proper”), the court had discretionary power to require such security where two of the three plaintiffs were nonresidents, although the affidavit in support of the defendant’s application stated that the purpose was to obtain security under secs. 2943-2945, which did not authorize the order.</p> <p>2. Failure to comply with an order requiring security for costs justifies dismissal of the action.</p>

<p> Vendor and purchaser of land: Fraud: Rescission: Several contracts: Ofíer to reconvey: Repayment of taxes. </p> <p>1. False representations by a vendor of land to the purchaser, as to the location of the boundary lines, were representations as to matters of- fact and not of mere opinion;</p> <p>2. The purchaser of lands is not hound to know that the descriptions furnished by the vendor and inserted in the contract correctly describe the lands shown him and which he actually agreed to purchase.</p> <p>3. Where plaintiff negotiated with defendant for the purchase of lands for himself, for his wife, and for one G., and took a contract in his own name for one tract, a separate contract in G.’s name for another tract, and a deed to his wife of a third tract, he may have the contract in his own name rescinded for fraud of the vendor, without offering to reconvey the other tracts. *</p> <p>4. Upon rescission of a land contract for fraud of the vendor, he may he required to repay the taxes paid by the purchaser.</p>

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

<p>Appeal from a judgment of tbe circuit court for Pierce county: E. W. Helms, Circuit Judge.</p> <p>Action to recover back money paid by plaintiff to defendant upon an alleged mistake, under substantially tbe following facts:</p> <p>On December 21, 1891, plaintiff, wbo bad been defendant’s agent during previous years, signed an agency contract, to become binding upon tbe defendant wben accepted at tbe borne office in Chicago, wbicb was not done until February 8, 1898. Sucb contract provided tbat plaintiff should be defendant’s agent for tbe “entire season of 1898,” and required him to “bold all goods shipped or received, until sold and delivered, and tbe entire -proceeds of all sales as tbe sole property of said Deering Harvester Oo. and as a special deposit for it, until it shall be fully settled with. ... To insure from loss or damage by fire, in a reliable company, by policy in tbe name of Deering Harvester Go., at expense of said agent, all of said company’s goods on band at said agency at any time, for at least three fourths of tbe net price while in bis or their custody,” and to “safely bouse or store . . . all goods on band at any time.” On October 14, 1898, á traveling representative of tbe defendant checked up plaintiff’s accounts and stock on band, and made a list of tbe latter, and plaintiff gave a receipt, entitled “Receipt for Unsold Goods on Hand,” acknowledging tbe possession- of said goods, that tbe same were unsold and unsettled for, and that be agreed “to keep and bold tbe same subject to tbe terms” of tbe aforesaid agency contract. About December 5, 1898, plaintiff, together witb a traveling representative of tbe defendant, signed a new annual agency contract for tbe season of 1899 — not to be binding upon tbe defendant until accepted by it at Obicago. There was some evidence that Such acceptance never bad taken place. On January 10, 1899, while tbe goods mentioned in tbe said-receipt were still on band, and while tbe balance due from plaintiff under tbe contract for tbe year 1898 was still unpaid, a fire occurred, without plaintiff’s negligence, whereby all of said property was destroyed, to tbe value of about $725; there being no insurance thereon. Early in April, plaintiff entered into an agreement for compromise of bis liability for failure to maintain insurance, and paid to tbe defendant tbe sum of $362.97 upon such compromise, and at tbe same time settled and paid tbe balance due upon tbe contract for tbe season of 1898 for goods sold but not paid for. Plaintiff testifies that at tbe time'of making such settlement be supposed that tbe new agency agreement, signed December 5, 1898, was in force at tbe time of tbe fire, and that be was liable thereunder, and that be did not learn until some time in tbe following summer that tbe company bad never approved that contract and bad never considered it in force.</p> <p>At tbe close of tbe evidence the defendant moved for a direction of a verdict, which was overruled, and the case was submitted to tbe jury upon tbe theory that plaintiff would not have been liable for failure to insure unless a new contract for tbe season of 1899 bad been made before tbe fire, and therefore would be entitled to recover if be, in tbe exercise of due care, mistakenly supposed, at tbe time of tbe making of tbe payment, that sucb contract bad become valid and binding. Under tbis instruction tbe jury found a verdict in bis favor for tbe amount paid, witb interest thereon, $420, for which judgment was rendered in bis favor; from which defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Pierce county: E. W. Helhs, Circuit Judge.</p> <p>This is an action to recover damages for injuries sustained by the plaintiff’s team in a runaway alleged to have been caused by the failure of the defendant to comply with sec. 1347&, Stats. 1898, as amended by ch. 19J, Laws of 1899. The answer consists of admission, denials, and counter allegations as to the care of' the defendant and the fault and contributory negligence of the plaintiff.</p> <p>The circumstances under which the injury occurred are mostly undisputed, and to the effect that June 1, 1901, the plaintiff was working with his team of horses, six years of age, and a common slush or hand scraper, on the public highway running north and south and known as the Seeley road; that he was assisted by one Guest; that a few rods north of where the plaintiff was so at work there was an east and west road, running at right angles with the Seeley road; that one mile west of the junction of the two roads was the village of Ellsworth; that the work in which the plaintiff was so engaged at the time consisted in scraping dirt from a point about four rods south of the intersection of the two roads, and on the westerly side of the Seeley road, southward into the center of that road to a distance of from five to ten rods from where they got the dirt. While the plaintiff was so at work on the afternoon of the day mentioned, the defendant, with his sons and a traction engine weighing more than seven tons, being propelled by its own steam power, came easterly from Ellsworth to the Seeley road, and then turned south thereon. The defendant first saw the plaintiff’s team when he was about twelve rods from the corner, but could not see it all the time until he turned the corner with his engine to go south on the Seeley road. lie kept his eye on the team and the plaintiff from that timé until the team ran away.</p> <p>At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at $316.85. From the judgment entered thereon accordingly the defendant appeals.</p>

<p> Preliminary injunction: Dissolution: Discretion: Master and, servant: Restraining employee from quitting service. </p> <p>1. Although the essential allegations of the complaint are denied hy the answer, it is within the discretionary power of the court to continue in force a preliminary injunctional order and thus preserve the status quo until the termination of the litigation; and this should *be done, upon such terms as will reasonably protect the defendant’s rights, if otherwise the object of the action may be defeated and the plaintiff suffer irreparable injury.</p> <p>2. In an action to restrain an expert mechanic and mechanical engineer, under contract of employment with plaintiff, from entering into the service of another company, the complaint alleged that he had, by reason of his employment with plaintiff, acquired peculiar knowledge of all the records, designs, patterns, models, etc., which had been worked out by and for the plaintiff and belonged exclusively to it and were used in its manufacturing business, and had come to know all the secret methods and valuable secrets pertaining to such business, and so was possessed of knowledge and skill in regard to such business which was possessed to the same extent by no other man, the benefit of which he was wrongfully about to give to said other company. His verified answer denied, however, that he knew any secrets or secret methods pertaining to the business or that by reason of his employment with plaintiff he had acquired any peculiar knowledge or skill pertaining to its business or its records, drawings, patterns, models, etc., except such as would be acquired by any person in the same position, and alleged that before he entered plaintiff’s service he had been employed by the company which originated the business and had there acquired his knowledge and skill and had freely given plaintiff the benefit thereof, and that such knowledge and skill were possessed by many other men, some of whom were still in plaintiff’s employ. Upon a motion to dissolve a preliminary injunctional order there was no attempt to dispute such statements of the answer. Held, that there was no abuse of discretion in dissolving the order.</p>

<p> Action: Dismissal upon motion: Costs: Foreclosure of mortgage: Payment into court: Taxes paid. </p> <p>1. A defendant cannot set up a mere defense by affidavit and ask summary decision thereon; but where, in an action to foreclose a mortgage, it was shown by affidavits, beyond dispute, that before suit brought defendants had offered to pay the amount due, and that on the day after the action was commenced they had paid into court the full amount demanded by the complaint, the court had power to dismiss the action.</p> <p>2. It was within the discretion of the court in such case, upon being satisfied that the action was commenced for the purpose of harassing the defendants and of making costs and expenses, to withhold all costs from plaintiff upon dismissing the action.</p> <p>3. Where in such case the complaint did not allege that plaintiff had paid any taxes on. the land, but merely that defendants had neglected to pay them, and prayed recovery merely of principal, interest, and costs, and the affidavits filed on plaintiff’s behalf upon the motion to dismiss did not state that plaintiff had paid any taxes or show any right in her to recover them, there was no error in dismissing the action although the payment into court did not cover any taxes.</p>

GeoRg-e W. Burnell, Circuit Judge. This action was commenced October 25, 1899, to set aside a deed of conveyance of lands therein described, and executed March 30, 1898, by the plaintiff to one Ida E. Harriman, since deceased, on the ground that such execution was procured by fraud and undue influence, while the plaintiff was ignorant of the nature and contents of the paper, and also to discover and adjudge to the plaintiff $400 in money alleged to belong to the plaintiff,…

<p>Moneys in custodia legis: Executors: Creditors’ suit: Supplementary proceedings: Exemptions: Income of personalty held in trust.</p> <p>1. Although secs. 3029, 3035, Stats. 1898, authorize, respectively, the maintenance of creditors’ suits and of supplementary proceedings and the entry of judgment therein against all persons, without express exceptions, neither of such proceedings can he maintained against executors to control their conduct as to the payment or application of moneys in their hands belonging to the estate of their testator.</p> <p>2. Except for express statute, all property of a debtor is liable for his debts.</p> <p>3. Secs. 2083, 2089, Stats. 1898, apply only to real property, and do not exempt from liability for debt the income of personalty, held in trust for the debtor, which is payable to him absolutely and without condition; and although the fund so held in trust has proceeded from some person other than the debtor, the interest of the debtor in such income may be reached by supplementary proceedings.</p>

<p>Appeal from an order of the circuit court for Iowa county: Geobg-e Olementsoh, Circuit Judge.</p> <p>This is an appeal from an order sustaining a demurrer to the third amended complaint, which alleges that March 22, 1848, one Jabez Wilson, then the sole owner of the premises described, made a deed thereof to Samuel Hosking, John Hosking, John Lumley, Edward Thomas, Benjamin Thomas, Thomas Jenkins, S. A. Brownell, Joseph Ward, John Todd, Joseph Vincent, James Hendy, and William James, of Dodgeville, reciting:</p> <p>“Whereas heretofore the citizens of Dodgeville have erected a church by subscription, called the Dodgeville Republican Ohurch, in which each subscriber holds an interest in proportion to the amount subscribed by him, and the” above-named grantees have been elected trustees thereof by the subscribers, “and it is agreed and understood by and between said subscribers and parties that the society of Wesleyan Methodists of Dodgeville shall have the use of said church as follows, to wit: Erom half past ten o’clock in the morning to half past twelve, and at six in the evening on each successive Sabbath, and also on every Wednesday evening: With the above reservation, the said church shall be open at all times to ministers of other denominations, to scientific lectures, lectures on temperance, and for all other purposes of a strictly moral tendency: Should the Wesleyan Methodist Society withdraw their services, the said trustees shall appoint some other religious denomination or denominations to fill the vacancy or supply the services so withdrawn: As often as a vacancy shall occur in said trust by the death or removal from the county of one of its members, a majority of the surviving trustees shall elect a new trustee at a meeting called for the purpose by said trustees, and of which one week’s notice shall be given.”</p> <p>The deed then grants the premises described to the said trustees and their successors in office forever, in trust for the use of the said Republican Church, its subscribers, and the uses before mentioned. The deed contains a warranty of title to the said trustees of the Republican Church, and their successors in office and assigns forever, against the lawful demands of all persons.</p> <p>Other allegations of the complaint are sufficiently stated in the opinion. The complaint prays judgment that the defendants, and each and all of them, and all persons claiming under them, or either of them, be perpetually enjoined from using or occupying said church building for the purposes of religious worship according to the religious tenets or under the church government of the Congregational Church; that they, and each of them, be enjoined from interfering in any manner with the use and occupation of said church building by the Primitive Methodist Society of Dodgeville for the purposes of religious worship according to the forms, rules, usages, practices, and doctrines of said society; that the right of the Primitive Methodist Society of Dodgeville to so use and occupy said church building to the exclusion of the defendants and all persons claiming under them, or either of them, be established and declared.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: LawRence W. Halsey, Judge.</p> <p>This is an action in equity brought to set aside certain reassessments levied against the plaintiff’s property in the city of La Grosse to pay for the paving of the street in front of said property with brick pavement. The case comes here upon the pleadings and findings, there being no bill of exceptions. The facts are that in the year 1900 the city of La Crosse entered upon an extensive system of street improvements in the city by the laying of brick pavement at the expense of abutting lots, and among other streets so improved was the street in front of the plaintiff’s property. At that time the city was operating under a special charter; the sáme being ch. 162, Laws of 1887, as amended by certain subsequent acts. Before commencing these improvements, however, the city council attempted to adopt by ordinance sec. 925 — 175 and secs. 925 — 177 to 925 — 199, inclusive, of the Statutes of 1898; being a part of the general city charter. All of the proceedings for the making of the improvements in question and the levying of assessments and the issuance of improve-meat bonds thereon, were taken tinder the sections of- the general charter so attempted to be adopted. The plaintiff filed due and written objections to the prosecution of the work and to the levying of the assessments, but the work was completed and the assessments levied against the plaintiff’s property therefor; and, such assessments not being paid, improvement bonds were issued against the plaintiff’s property. .June 25, 1900, an action of certiorari was commenced by one Boycott, another property owner, to test the validity of the ordinance aforesaid adopting certain sections of the general charter; and final judgment was rendered in said action December 11, 1900, adjudging that the attempted adoption was null and void. State ex rel. Boycott v. Mayor, 107 Wis. 654, 84 FT. W. 242. Thereafter another action of certiorari was commenced by Boycott for the purpose of reversing the assessment proceedings themselves, which action resulted in a judgment by the circuit court for La Crosse county February 3, 190Ó, setting aside the assessments and the improvement bonds for the reason that the assessment proceedings were without jurisdiction and contrary to the city charter and the statutes of the state. February 14, 1901, the council of the city of La Crosse duly adopted, by ordinance, secs. 925 — 172 to 925 — 200, inclusive, of the general charter law; and subsequently a reassessment of benefits and damages was made against the plaintiff’s property, and new special improvement bonds were issued under the provisions of sec. 1210 d. Stats. 1898, as amended by ch. 9, Laws of 1901. These new improvement bonds are all held by a national bank in the city of La Crosse, and the city owns no part thereof. Before the making of the improvements in question, the street in front of the plaintiff’s property had been twice improved, paved, and guttered according to the grade established by the council, at the expense of the plaintiff’s lots, at a total cost of about eighty cents per square yard, and the present assessment amounted to $1.49 per square yard.</p> <p>Upon these facts the court found that the reassessments were valid, and dismissed the complaint, and the plaintiff appeals.</p>

<p>Appeal from a judgment of tbe circuit court for La Crosse county: Chas. M. Webb, Judge.</p> <p>Tbe cause of action set forth in tbe complaint at tbe outset was for tbe dissolution of a partnership and an accounting. Tbe substance thereof was as follows: January 1, 1895, plaintiff and defendant made an agreement, partly verbal and partly written, for tbe purpose of buying timber lands of various sorts and dealing in tbe same in the states of Florida and Geofgia. By tbe terms of such agreement plaintiff bound himself to contribute tbe special knowledge which be bad respecting lands and tbe proper manner of selecting and acquiring tbe same safely and handling tbe property profitably in tbe states mentioned, such services to be deemed equivalent in money to tbe value of one sixth of tbe capital required in prosecuting tbe partnership enterprise, and defendant bound himself to furnish tbe cash capital. It was agreed tbat tbe title to tbe lands should be vested in tbe defendant and that tbe net' avails thereof should inure to bis benefit and tbat of tbe plaintiff in proportion to their contributions- to tbe partnership capital. By tbe laws of tbe states mentioned it Avas competent to mate a contract of tbe nature mentioned, to establish tbe same partly by parol and partly by written evidence, and to charge tbe person bolding tbe legal title to lands purchased in tbe manner contemplated by such contract as a trustee thereof for bis associate or associates according to their agreed interest therein. Lands described in tbe lists attached to tbe complaint and referred to as A, B, and D, and other lands not necessary to mention, were acquired under said agreement, tbe title thereto being vested in tbe defendant. Tbe cost thereof was fifty cents per acre. Tbe first purchase, called tbe A lands, consisted of 121,674.91 acres; tbe second, called the B lands, consisted of 9,863 acres; tbe fourth, called tbe D lands, consisted of 26,950 acres. Defendant now denies tbe partnership agreement, refuses to advise with plaintiff respecting tbe property or to share with him any of tbe benefits thereof, or to recognize him in respect thereto in any way. Defendant has conveyed tbe property to tbe East Coast Lumber Company, of tbe stock of which be is tbe principal owner. Through such corporation he is handling tbe lands to tbe exclusion of plaintiff from any interest therein or in tbe profits thereof. Tbe complaint closed with tbe usual prayer for relief in a winding-np suit respecting partnership dealings in lands where tbe title is vested in one of tbe parties.</p> <p>After tbe evidence was all in tbe complaint was amended against objection of defendant, by adding after tbe allegations respecting tbe A lands tbe following:</p> <p>“And tbe plaintiff alleges as to said last-mentioned tract of land, tbat the title thereto was procured and caused to be conveyed to said defendant by this plaintiff upon an agreement in writing, tbat said defendant should pay a specific sum, to wit: fifty-seven thousand four hundred ninety-eight ($57,498.00) dollars for five sixths thereof, the remaining one sixth of the consideration to be paid and supplied by this plaintiff, and that this plaintiff was to have and retain one-sixth (1-6) interest in said land; and the plaintiff did pay for and supply one sixth of the consideration.”</p> <p>The answer put in issue all the allegations of the complaint. It contained allegations respecting the A lands to the effect that the same were purchased through the efforts of. plaintiff and under an agreement that he should have $5,000 for his services in the matter, and that the same was fully paid before the commencement of this action.</p> <p>The court found that plaintiff and defendant, being both residents of the state of Wisconsin, the former possessed of special knowledge of the business of dealing in timber lands in the states of Florida and Georgia, and the latter being a manufacturer of lumber and desirous of acquiring timber lands in such states for that business, entered into negotiations for the acquirement of timber lands in such states with a view to manufacturing the timber into lumber and dealing therein for profit, whereby, in 1895, under a written agreement to the effect that an undivided one-sixth of the lands obtained should belong to plaintiff and five sixths to defendant, they acquired the A lands mentioned in the complaint, defendant paying $57,200 as five sixths of the purchase price therefor and plaintiff a proportionate amount for the balance of such price; and that the title to the lands was taken in the name of the defendant, in trust, however, as to a one-sixth interest, for plaintiff. Defendant had associates in the matter who were not parties to the contract between him and plaintiff. It was contemplated that a corporation would be formed, all the lands turned over to it, and the stock thereof distributed to all persons interested according to their equitable interests. In April, 1895, plaintiff and defendant acquired another tract of land described in the complaint as the D lands, the same to be handled for the joint benefit of the parties to tbe transaction tbe same as tbe A lands. In tbis case tbe title to tbe lands was first vested in plaintiff. He conveyed tbe same to defendant. Tbe agreement as to these lands was in writing. Under sncb agreement tbe parties were to be beneficially interested in tbe same proportions as in tbe case of tbe A lands. Tbe negotiations aforesaid further resulted in tbe purchase of lands designated in tbe complaint as tbe B lands. In such purchase plaintiff was allowed for his services tbe sum of $466.50, tbe same being deducted from tbe purchase price by defendant and retained to be paid to plaintiff, but be has not paid tbe same. In December, 1896, defendant caused a corporation to be formed known as tbe East Coast Lumber Company, tbe capital stock of which was fixed at $500,000. Defendant bolds a majority of such stock. Tbe corporation was organized to take tbe title to tbe lands in question and manufacture the timber thereon into lumber. Prior to tbe commencement of tbis action tbe A lands were transferred to such corporation, but whether tbe D lands were so conveyed does not appear definitely from tbe evidence. Tbe allegations of tbe complaint as to a partnership agreement between tbe parties is not sustained by tbe evidence. Before tbe commencement of this action defendant denied plaintiff any rights whatever in tbe lands or tbe stock in tbe corporation representing tbe value of tbe lands.</p> <p>As conclusions of law tbe court decided that at tbe date of tbe conveyance of tbe A and D lands to tbe defendant be became tbe trustee of tbe title thereto for tbe plaintiff of one sixth; that plaintiff was entitled to a credit of $298 on account of expenditures in tbe purchase of such lands and tbe further sum of $466.50 on account of tbe purchase of tbe B lands; that plaintiff was entitled to recover from defendant such portion of tbe stock held by him in tbe East Coast Lumber Company as would equitably represent a one-sixth interest in tbe A lands; and in case of its appearing that tbe D lands have been conveyed to tbe corporation, be is entitled to such an amount of such stock as will equitably represent bis interest therein; that a reference should be had to ascertain and report, first, the amount of money defendant has expended for taxes and other expenses on account of the A and D lands since the same were purchased and the credits plaintiff is equitably entitled to on account of profits received by defendant from the property; second, to ascertain the number of shares of stock in the corporation mentioned, which under all the circumstances should be apportioned to a one-sixth interest in the A lands, and also such amount as should be apportioned to the D lands should it appear that such lands have been conveyed to the corporation; third, to inquire and report the circumstances respecting the dealings of the corporation in the A and D lands and the net profits it has received therefrom; fourth, to ascertain and report the situation of the D lands as regards whether they have been conveyed to the corporation or not. An interlocutory judgment was ordered adjudging the rights of the parties accordingly and ordering a reference to ascertain the facts required in order to enable the court to enter a final decree. The appeal is from the'interlocutory judgment.</p>

<p> Partnership: Who are members? Signatures in- booh: Evidence: Competency of witnesses: Transaction with deceased agent: Adverse parties: Pleading: Strihing out sham allegations: Immaterial error: Withdrawal of partners: Continuance of firm. </p> <p>1. Articles of a copartnership known as the Farmers’ Union, partly printed and partly written, were pasted in a blank book, and on several pages following were pasted separate sheets containing signatures apparently written before the insertion of such sheets in the book. Following these were other signatures written on the pages of the book. In an action to charge as partners several of the persons whose signatures so appeared, the court instructed the jury that if defendants signed on such sheets when the copartnership articles were attached thereto, or if such articles were in some way connected with their signatures so as to form a part of the same and make the same appear as one instrument, then those so signing executed the articles; that the jury were to determine merely whether defendants did sign the articles or the sheets while attached thereto so as to constitute a part of the contract. Held, not ' erroneous as against defendants.</p> <p>2. It was error, in such case, to refuse to permit a defendant to testify as to what his purpose was, and what the understanding was with reference thereto, when he signed his name on the book.</p> <p>3. One of the defendants testified, on cross-examination by plaintiff, that ten years before the trial he had paid to an agent of the partnership $1 for the privilege of trading one year at its store and had at that time signed the list of names, handed to him by said agent. The agent was then acting as clerk in the store, but it appeared that he had died before the giving of the note on which the suit was brought. On redirect examination the court held the witness incompetent to testify to the conversation then had with the agent. Held, that the exclusion of such conversation was error, under sec. 4070, Stats. 1893, because plaintiff had first examined the witness as to such transaction, and also because the agent was not, within the meaning of that statute, “an agent of the adverse party [plaintiff] or an agent of the person from, through or under whom such adverse party derives his interest or title.”</p> <p>4. In an action against alleged partners, where the answering defendants denied that they were members of the firm, non- ■ answering defendants were not parties adverse to the plaintiff, subject to examination as such under sec. 4068, Stats. 1898; and when they were called as witnesses by plaintiff it was error to refuse to permit the answering defendants to cross-examine them.</p> <p>5. Under Sec. 2682, Stats. 1898, allegations of a verified answer cannot properly be stricken out as sham; but where allegations so stricken out did not constitute a defense, or any part of a defense, the error is immaterial.</p> <p>6. In an action against partners upon a note given for money loaned to the firm and used in its business, it is no defense that the business was not being conducted in the manner prescribed by the copartnership articles.</p> <p>7. Articles of a copartnership known as the' Farmers’ Union provided that any member might withdraw in the manner prescribed, and that each member should he responsible for repayment of money borrowed to run the business. The firm was manifestly to consist of many members and continue for an indefinite period. Held that, although some members had died and some had withdrawn before the moneys were borrowed for which the note in suit was given, those who were in fact members at the time of such borrowing may be held liable as partners on the note.</p>

J. Feuit, Judge.. On February 26, 1900, one Charles A. Spencer commenced an action for the breach of a lumbering contract entered into by him November 29, 1892, with the defendant Luzern Holman and one Ira W. Baggs.

Croix county: E. W. Helms, Circuit Judge. This is an action to foreclose a mechanic's lien.

<p> States: Boundaries: Rivers: Concurrent jurisdiction: Enforcement of fish and game laws. </p> <p>1. The boundary line of this state, as to its outlying rivers, is the main channels of such rivers.</p> <p>2. The concurrent jurisdiction which this state has with the state of Minnesota on the Mississippi river is of a special nature,— one not incident to nor implying concurrent dominion over the territory covered by water between the two states, or concurrent ownership in such water or the land under the water, or the fish and game that inhabit the same.</p> <p>3. The term “concurrent jurisdiction on the water,” used in the acts of Congress providing for the admission of the states of Wisconsin and Minnesota into the Union, refers to the effect of the law of each state within the domain of the other covered by water divided by the boundary line between the two states, as regards persons or things on the water concerned or connected in some way with the use thereof for purposes of navigation. It has no reference to the land under the water or things of a permanent nature in or over the water. In respect to such matters and rights incident thereto, the jurisdiction of each state on its side of the boundary line is exclusive.</p> <p>4. The enforcement by the state of Minnesota of its fish and game laws on the Wisconsin side of the main channel of the Mississippi river is not justifiable on the theory of common ownership of the river or things in or on or under the same on the Wisconsin side of the main channel.</p> <p>5. The term “concurrent jurisdiction on the water” in the acts of Congress before referred to must be restrained to the ordinary meaning thereof in American public law at the time the term came into use in the legislative enactments of this country.</p> <p>6. The concurrent jurisdiction above specified does not empower one state to regulate the individual enjoyment by people of another state within its boundaries, of property held in trust by such other state for the people within its limits, such as public water and the fish and game that inhabit the same.</p> <p>[Syllabus by Mabshaix, J.]</p> <p>Dodge, J., dissenting, is of the opinion that this state, having decided that its concurrent jurisdiction enables it to define and punish, a crime upon boundary waters but in the territorial limits of Minnesota, cannot deny to that state the same right upon those waters.</p>

Gr. Siebeckee, Circuit Judge. Tbis is an action at law for tbe recovery of damages' in tbe ■sum of $2,000.

<p> Action, tort or contract? Pleading: Liberal construction: Amendment: Changing form of action: Bales: Fraudulent warranty: Instructions: Evidence: Conduct of trial judge. </p> <p>1. A complaint alleging that, during negotiations for the purchase of a horse hy plaintiff from defendant, the latter, in reply to a question by plaintiff, represented and warranted the horse to he suitable for certain work, well knowing that the animal was entirely unfit for that work; that plaintiff, relying upon such assurance, bought the horse; and that plaintiff was damaged by the breach of warranty — -is held to state, by reasonable inference, that the false representation was made with intent to induce the plaintiff to purchase, and hence to state a cause of action for damages for a fraudulent warranty.</p> <p>2. In an action to recover damages for a fraudulent warranty on sale of a chattel, leave to strike out the allegations showing fraud, so as to change the action to one on contract, was properly denied.</p> <p>3. An instruction, in such case, as to what would constitute a warranty, leaving out the element of fraud, on the theory that the action was on contract, was properly refused.</p> <p>4. An instruction in such case, that plaintiff was bound to establish the facts constituting fraud “by a clear preponderance of the evidence,” is held not erroneous, although the better way of stating the rule is that such facts must be established “by clear and satisfactory evidence.”</p> <p>5. Error assigned because the trial judge, by his manner while instructing the jury, prejudicially impressed them against the appellant, is not available on appeal in the absence of anything in the record to show such conduct,</p>

<p>Appeal from an order of the circuit court for Columbia county: B. F..Dunwiddie, Judge.</p> <p>Appeal from order sustaining demurrer to the complaint, alleging following material facts:</p> <p>That the Wisconsin river, in its course from a point some fifteen miles above the city of Portage, runs in a generally southeasterly or nearly easterly direction to and through the ■city of Portage, in its course passing through the town of •Caledonia, in Columbia county, which lies west of Portage, and through the town of Eairfield, in Sauk county, which lies northwest of Caledonia; that generally the southerly bank of said river is low; that through the town of Caledonia, and about two miles south of the Wisconsin river, runs the Bara-boo river, nearly parallel therewith, and forming a junction' with the Wisconsin river about two miles south of and below the city of Portage; that in its natural state at high water the waters of the Wisconsin overflowed its low southerly bank in Caledonia, and found their way southward into the Bara-boo river, which was at a lower level, and thence said waters passed onward to the above-mentioned junction of the two rivers; that plaintiff is the owner of certain described lands in the town of Caledonia, which were among those over which •overflowing waters sometimes passed; that under and in pursuance of ch. 213, Laws of 1873, which authorized the construction of a levee along the south bank of the Wisconsin river by the town of Caledonia, separately or in connection with the city of Portage and town of Pairfleld, for the purpose of reclaiming the lands subject tp overflow in times of high water and protecting the highways from overflow and enabling the proper authorities to keep them in passable condition at all seasons, and payment of the expense thereof both out of general taxes and by special assessment of one third upon the specially benefited lands, the town of Caledonia did, in 1886 and 1887, construct such a levee along the southerly bank of the Wisconsin,, from a point several miles above the plaintiff’s lands, past and adjoining the same, to a point in the city of Portage several miles below them, and did maintain said levee up to the time complained of in the year 1900; that in June, 1900, said levee became weakened and out of repair at a point opposite plaintiff’s premises, to which fact plaintiff called the attention of the proper authorities of the defendant town, pointing out to them the danger of its destruction in high water and damage to plaintiff’s property; that said defendant town wholly failed and neglected to repair said levee or take any steps to protect the plaintiff from danger thereby; that about the 1st of October, 1900, news came of high water on the upper Wisconsin, and plaintiff again notified the chairman and clerk of the defendant town and overseer of highways, and requested precautionary steps to be taken to protect the levee and the property of the plaintiff from injury by reason of the said defects, but the defendant wholly failed and neglected to take any such steps; that about the 9th of October the said high water occurred in the part of the Wisconsin river opposite plaintiff’s lands, and by reason of the carelessness and negligence of the defendant in failing to properly construct and maintain the levee in safe condition and in neglecting to repair the same, it broke at a point opposite the lands of the plaintiff, and allowed the waters of the river to flow over and across said lands, doing them great damage by reason of washing and of the deposit of river sand and debris thereon. Whereupon, on November 7th, notice of such injuries, and of claim for damages thereby caused, was served'upon the town clerk, and claim was presented and heard before the town board of audit at its regular meeting in April, 1901, and, such claim being disallowed, this suit was commenced more than ten days thereafter, praying recovery of the damages caused plaintiff’s lands as aforesaid in the sum of $2,271.</p> <p>The defendant demurred on three grounds: (1) That the court has no jurisdiction of the subject of the action; (2) that the complaint does not state facts sufficient to constitute a cause of action; and (3) bar of the cause of action by the lim-tation provided by sec. 4222, Stats. 1898. The demurrer was sustained without specification of the grounds.</p> <p>The defendant town, Raving closed the natural channel of the Wisconsin river, preventing the overflow from passing into the Baraboo, narrowing the main channel and confining the increased volume of water therein, in so doing is bound to safely carry the water by the lands of the plaintiff. Barden v. Portage, 79 Wis. 126; Schroeder v. Baraboo, 93 Wis. 100. Having constructed the levee under legislative act and exercising ownership and control over it, the town is under the same liability for its negligence in constructing and failing to maintain the same as a municipal corporation or an individual. 20 Am. & Eng. Ency. of Law (2d ed.) 1205; 28 id. (1st ed.) 1047, note 3; 29 id. 79; Gould, Waters, 499; Philadelphia v. Scott, 81 Pa. St. 80; 24 Cent. L. J. 123; Ballou v. State, 111 N. Y. 496; Elliott, Mun. Corp. §§ 340, 341, pp. 309, 311; Nefzer v. Grookston, 59 Minn. 244; Sei-fert v. Brooklyn, 101 N. Y. 136; Miles v. Worcester, 154 Mass. 511; Harper v. Milwaukee, 30 Wis. 365; Noonan v. Albany, 79 3ST. Y. 470; 15 Am. & Eng. Ency. of Law, 1141; 22 id. (2d ed.) 938; Priewe v. Wis. S. L. & 1. Co. 93 Wis. 547-551; Galveston v. Posnainsky, 62 Tex. 118, 13 Am. & Eng. Corp. Cas. 484; Cain v. Syracuse, 95 N. Y. 83; Denver v. Dunsmore, 7 Colo. 328; Kunz v. Troy, 104 N. Y. 344; Weightman v. Washington, 1 Black (U. S.) 39; Weet v. Brockport, 16 N. Y. 161; Nims v. Troy, 59 N. Y. 500 — 508; Rochester W. L. Co. v. Rochester, 3 N. Y. 463, 53 Am. Dec. 316; Barton v. Syracuse, 36 N. Y. 54; McCarthy v. Syracuse, 46 N. Y. 194; 2 Dillon, Mun. Corp. (4th ed.) § 1048, and cases cited; Conrad v. Ithaca, 16 N. Y. 158, 163, 166; LoriUard v. Munroe, 11 N. Y. 392; New York & B. S. M. & L. Co. v. Brooklyn, 71 N. Y. 580; Hardy v. Brooklyn, 90 N. Y. 435; ¡Seifert v. Brooklyn, 101 IST. Y. 136; 2 Wood, Nuisances, § 752. By the provision of ch. 213, Laws of 1873, there is expressly enjoined upon the defendant town the duty ©f maintaining this levee. Eor negligently failing to discharge that duty the town is liable, and has assumed the same obligations as a municipal corporation or an individual in this regard. Barden v. Portage, 79 Wis. 126; 19 Am. & Eng. Ency. of Law (2d ed.) 610; Hook v. W. & N. B. B. 58 N. H. 252; Louisville, N. A. & O. B. Go. v. Godman, 104 Ind. 492; 15 Am. & Ency. of Law, 1150, and cases cited, note 4.</p> <p>argued, among other things, that where there is no statute expressly providing for liability on the part of a town, it cannot be held liable for negligence on the part of its officers in failing to keep in repair a construction erected for the public, and from which it receives no profit or advantage. Stilling v. Thorp, 54 Wis. 528; Sowle v. Tomah, 81 Wis. 349; Kelley v. 'Milwaukee, 18 Wis. 83; Hayes v. Oshkosh, 33 Wis. 314; Schultz v. Milwaukee, 49 Wis. 254; McLimans v. Lancaster, 63 Wis. 596; Morrison v. JEau Olaire, 115 Wis. 538, 92 N. W. 280; Folk v. Milwaukee, 108 Wis. 359; Hill v. Boston, 122 Mass. 344.; Gurran v. Boston, 151 Mass. 505; Howard v. Worcester, 153 Mass. 426; Tindley v. Salem, 137 Mass. 171, 176; Daniels v. Bacine, 98 Wis. 649 — 651; Collins v. Macon, 69 Ga. 542-547; 20 Am. & Eng. Ency. of Law (2d ed.) 1193. The authorities in constructing the levee were not acting for and on behalf of the town, but were acting as public or governmental officers or agents in the exercise of police power; in the exercise of which the town as a municipality has no concern and for which it is not liable. Slate ex ret. Gordon v. McNay, 90 Wis.- 104; Williams v. Yorkville, 59 Wis. 119; Smith v. Gould, 59 Wis. 631; Smith v. Gould, 61 Wis. 31; Hayes v. Oshkosh, 33 Wis. 314; Schultz v. Milwaukee, 49 Wis. 254; Kuehn v. Milwaukee, 92 Wis. 263 ; Little v. Madison, 49 Wis. 605 ; Pettingell v. Ohelsea, 161 Mass. 368.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: E. G. Siebeckee, Circuit Judge.</p> <p>In 1881 an educational corporation known as the Grant Memorial University was located at Athens, Tenn., where it conducted an institution of learning. In March of that year one J. J. Garvin visited Mrs. Caroline C. Fruit at her home in Baraboo, Wisconsin, and there solicited her to aid in establishing a chair of practical theology in said institution, with the result that she signed a paper which was in the words and figures following:</p> <p>“The Eev. John Bean chair and. Carolina Fruit scholarship in Grant Memorial University at Athens, Tenn., said chair to be named and said scholarship to be awarded at once on condition of donor paying one thousand dollars ($1,000.00) in cash or real estate, and providing by will for the payment, at decease of donor, of five thousand dollars ($5,000.00). And after the following named benevolences of the M. E. church have received as follows:</p> <p>The Church Extension Society. $500 00</p> <p>The Foreign Missionary Society. 500 00</p> <p>And the Freecbnen’s Aid Society. 500 00</p> <p>And the Home Missionary Society. 500 00</p> <p>“Provided that the last two amounts be applied as directed by the regents of the U. S. Grant Memorial University. After which amounts shall be applied to the Eev. John Bean chair until the total contributed by donor shall reach $10,000. Provided further that all property of donor unspecified as otherwise applied as bequeathed shall be the property of Grant Memorial University, after decease of donor.</p> <p>“J. J. Garvin, General Solicitor.</p> <p>“Carolina O. B. Fruit, Donor.”</p> <p>After signing such paper Mrs. Fruit made a will in conformity thereto and conveyed real estate to such corporation to the amount of $1,000, and gave a copy of the will and such paper to said Garvin for presentation to said corporation for its acceptance. At a meeting of the trustees of such corporation competent to act in the matter a resolution was adopted as follows:</p> <p>“Resohed, that we hereby record our grateful acceptance of the Will’ of Mrs. Carolina B. Fruit, secured and presented by Prof. J. J. Garvin, providing for the payment of ten thousand dollars to Grant Memorial University at the time of the decease of the donor and also for placing in the hands of said board $1,000 to be distributed by them as per said will.</p> <p>"Resolved, that we hereby comply with the conditions of the aforesaid Will’ by naming a chair in the theological department of said university to be known as the Bev. John Bean Chair or ‘professorship.’</p> <p>"Resolved, that we will have said name properly engraved on a marble tablet in said university and spread these resolutions on the journal of said institution, with the name of the donor.”</p> <p>At or about the time of such adoption and in effect as part of the said pretended acceptance of Mrs. Fruit’s proposition referred to, an agreement was made between the corporation and said Garvin, worded as follows:</p> <p>“This agreement made and entered into this 28th day of April, 1887, by and between the trustees of Grant Memorial University of the state of Tennessee, and J. J. Garvin, professor in the school of theology in said university, witnesseth: That the said J. J. Garvin is appointed and invested with full authority as financial agent and general solicitor of endowment funds for the said G. M. university.</p> <p>“Said funds subscribed and collected are to be used for the endowment of a professorship in the school of theology in said university.</p> <p>“It is further agreed that the said J. J. Garvin shall receive twenty (20) per cent, of all donations secured by him as commission. This commission may be taken from cash donations when collected. If the donation is in real estate or other property, the said J. J. Garvin by agreement of all parties concerned as to values, may take bis commission for cash donations secured by him; otherwise the said J. J. Gar-vin shall have one fifth interest in said property.</p> <p>“In case the commission is taken in lands or other property the board of trustees shall deliver to said J. J. Garvin a deed for one fifth of said property or land; said one-fifth interest to be either divided or undivided as said Garvin shall desire.</p> <p>“It is further agreed that all donations for permanent endowment secured by said J. J. Garvin shall be for the endowment of a chair or professorship in the school of theology in said university. And it is further agreed that said endowment shall remain intact, and only the interest or income be used to support said professorship.</p> <p>“And it is further agreed that said J. J. Garvin shall hold said professorship and receive the income from said endowment as soon as it shall become available as his salary, as long as he may remain a professor in said university. It is further agreed by and between the aforesaid parties that the said J. J. Garvin shall be the agent of the board of trustees in the management of the endowment secured by him, and in selling or investing said funds he shall consult the board of trustees. It is further agreed that until the full amount of twenty-five thousand ($25,000.00) dollars has been raised, and the interest or income made available, the said J. J. Garvin may collect funds for his support to the amount of $1,500 — including the income from endowment already secured.”</p> <p>The corporation, in passing the resolution aforesaid, did not purpose doing more than to formally name a chair or professorship in the university the “Bev. John Bean Chair,” leaving the question of whether the professorship should be established for practical purposes in the institution to depend on success by said Garvin in accumulating the fund of $25,000 with which to endow the chair. • Mrs. Bruit was never informed of the condition precedent to the Bev. John Bean chair being supplied by an occupant with active duties to perform in the said institution. Said Garvin never obtained any substantial additions to the fund pledged by Mrs. Fruit, and bence there never bas existed any sucb professorship in the institution conducted by said corporation as that called for by Mrs. Fruit’s donation, except in name.</p> <p>Shortly before her death Mrs. Fruit made a new will, in which, in the usual form, she revoked her former will. After her death said last will was duly established in the probate court for Saule, county, Wisconsin. Thereafter the U. 8. Grant University, r corporation, and the successor of the U. S. Grant Memorial University, filed a claim against the estate of Mrs. Fruit for the amount of her donation aforesaid. Such proceedings were had respecting such claim that the judgment of the county court in the matter was carried for review to the circuit court for Saule 'county, Wisconsin, where a trial was had, resulting in a decision, as to the facts, in accordance with the foregoing, specific findings being filed embodying the same, and other facts disclosed by the evidence, including the following: The name of the Grant Memorial University was changed to the U. 8. Grant University subsequent to the adoption of the pretended acceptance of Mrs. Fruit’s proposition to the .corporation to establish a chair of practical theology in its institution, and its location was changed from Athens to Chattanooga, all without her knowledge or consent. The money provided by her for a scholarship was never devoted to that purpose. In accordance with the understanding between the corporation and said J. J. Garvin, he was permitted to retain the whole thereof and to appropriate twenty per cent, of it to his own use. Not only was no scholarship such as that called for by Mrs. Fruit’s donation actually established in the university, but according to the rules and regulations of the corporation none can be established. By reason of the agreement between Garvin and the corporation whereby he was entitled to a portion of the donation secured from Mrs. Fruit upon the same being realized by the corporation, he is an interested party in this cause. No consideration was in fact paid or given by tbe corporation to Mrs. Fruit for ber promised donation.</p> <p>Upon sucb facts tbe court concluded, among other things, that there was practically an entire failure upon tbe part of tbe IF. S. Grant Memorial University and its successor, tbe claimant, to accept and carry out the conditions of Mrs. Fruit’s donation so as to make ber promise in regard to tbe matter binding on ber estate; that not only were tbe conditions of tbe donation never complied with, but tbe proceedings in regard to tbe matter were sucb as to indicate a determination never to comply therewith. Upon that and numerous other legal conclusions specified by the trial court it was determined that tbe plaintiff bad no cause of action, and its claim was accordingly dismissed with costs. From tbe judgment entered in accordance with tbe decision of tbe court this appeal was taken.</p>

<p>Appeal frqjn a judgment of the circuit court for Saule county: R. G. SiebecKee, Circuit Judge.</p> <p>Action for replevin for certain bar furniture and two horses seized by the defendant, as sheriff, by virtue of an execution against one Luther Griswold, Jr., son of the plaintiff. Plaintiff was shown to have loaned money to his son, to he used by the latter and a partner in establishing a saloon business in Ohicago. It was claimed that the property in question belonged, the bar fixtures to that firm, and the horses to the partner, Weigel, and was delivered by such owners to the plaintiff by shipment from Ohicago to him at Baraboo, in part payment of that indebtedness. It appears that the goods were shipped from Ohicago to “L. Griswold,” and were accompanied from Ohicago by the son, tahen by him from the railroad, the bar fixtures stored in a warehouse, and the horses put in plaintiff’s bam; the son thereafter stopping with his father. It was claimed on the part of the defense that the goods had belonged to the son, and that there had been no delivery or change of possession; hence that, if any transfer was made from him to the plaintiff, it was fraudulent and void as against his creditors. The case was tried by a jury, and verdict returned in favor of the defendant, and judgment rendered thereon for the possession of the goods and nominal damages, after overruling a motion on the minutes for a new trial. From such judgment the plaintiff appeals.</p>

<p>Appeal from a judgment of the circuit court for Columbia county: R. G. Siebeceeb, Circuit Judge.</p> <p>This is, an appeal from a judgment construing a will. Thomas Albiston, a resident of Columbia county, Wisconsin, died in August, 1890, possessed of considerable real and personal property of various descriptions, and leaving a will, which was afterwards duly probated, the material parts of which are as follows:</p> <p>“First. After payment of my just debts, if any, and funeral expenses, I give, devise and bequeath to my beloved tvife, Matilda Albiston, all my property and estate of every kind and description for and during the term of her natural life, and I direct that as to my house, household furniture and such, other things as can. reasonably be used by her in the condition in which I have them, that they be kept and used by her in that condition as near as may be.</p> <p>"Second. After the death of my said wife Matilda, I will and direct that all my property and estate of every kind be divided into two equal parts; one part or one half of my said estate I give, devise and bequeath to the brothers and sisters of my said wife Matilda, Albiston, share and share alike; if any of her said brothers or sisters have died or shall die before my said wife, the share which would have gone to him or her shall be equally divided between his or her children, share and share alike. The other one-half of my said estate I give, devisé and bequeath to my half brother Noah Albiston of England and my half sister Alice Kind of England, share and share alike, and if either of them die before my said wife, leaving no lawful issue, the survivor of them shall take the share which the other if living would have taken, and the child or children of either of them shall take the share the parent would have taken if living.”</p> <p>It appeared that the testator was about seventy years of age at the time of his death, and that his wife, Matilda, survived him, they never having had any children; that his brother and sister named in the will, Noah Albiston and Alice Kind, survived him, both having children and grandchildren at the time of the testator’s death; that the widow, Matilda, at the same time had four sisters and one brother living, all of them having children except the brother Alfred; that Matilda lived until November, 1901, and that her sisters and brother Alfred all died before her, and all left children except Alfred, who left no descendants, but died testate, leaving a widow; that Noah Albiston died in 1891, leaving descendants living; and that Alice Kind is still living. Upon these facts the circuit court held that Alfred Stephenson, the brother of Matilda, and his sisters, took vested estates at the death of the testator, and hence that Alfred’s share passed under his will. Erom this holding the executors of Thomas Aibiston’s will appeal.</p>

<p>Appeal from a judgment of tbe circuit court for Dane county: B. G. Siebeceek, Circuit Judge.</p> <p>This is an action on contract to recover the.purchase price of a piece of machinery known as a “gang die,” constructed by the plaintiffs for use in the defendant’s shop. The complaint alleges that the plaintiffs constructed the die at the defendant’s request, at the agreed price of forty cents per hour for the labor put thereon, and a reasonable compensation for the material used therein, amounting in all'to $278.14. The. answer denied the material allegations of the complaint.</p> <p>It appeared upon the trial, without dispute, that in November, 1900, the plaintiffs were copartners operating a machine shop in Madison, and that the defendant was a corporation manufacturing electrical machinery in the same city, and that one Duncan was superintendent of this shop. The plaintiffs’ evidence tended to show that early in November, 1900, the plaintiff Parr was called to the defendant’s shop by Duncan, who told him that he wanted him to figure on a gang die for use in the defendant’s shop; that Parr looked over the machine which had been in use at the shop, and that Duncan then asked the price of a new machine such as was wanted, and Parr told him he could fix-no price, but would do the work for forty cents an hour, and that Duncan desired him to make a plan of the machine; that Parr thereafter made a plan and showed it to Duncan, and Duncan approved it and again wished to know the cost, and Parr again told him that he could not fix the p^ice but would work for forty cents an hour thereon, and that Duncan told him to go ahead; that the understanding was that the machine was to operate satisfactorily ; that the plaintiffs immediately ordered some steel and other necessary materials for the machine; that some days afterwards the plaintiffs received from the defendant the following written order:</p> <p>“Madison, Wis., 11 — 5—’00. No. 6648.</p> <p>“Ford & Parr, City.</p> <p>“M. A. Please furnish Nsrthern Electrical Mfg. Co., at Madison, Wis., via 0. & N. W. Ry., the following materials at the prices herein named:</p> <p>“One gang die as per our drawing No. e2195 herewith. Price to be 40 cts. per hour, total cost not to exceed $100.00.</p> <p>“Die to be subject to our approval and not to be accepted unless it operates satisfactorily.</p> <p>“NoethbeN Eljoctbical Mug. Co.,</p> <p>“By A. O. Fox, Treasurer;”</p> <p>that this order was not received until some days after its date, and about the middle of November, and that the material had then been received by the plaintiffs, and that work on the machine commenced about the time the written order was received; that Parr immediately telephoned to Mr. Duncan, and told him of the receipt of the order, and that he could not accept the terms therein, and that Duncan replied that he would come and see about it; that Duncan came to plaintiffs’ shop .on the next day, and finally told Parr to make the die regardless of the limitation in the order; that the plaintiffs then proceeded to mate the machine, and that Duncan came over every week to see the progress thereof, and gave directions as to details; that afterwards the following letter was received by the plaintiffs from Duncan at about its date:</p> <p>“l-22-’Ol.</p> <p>“Parr & Kroneke, City.</p> <p>“Gentlemen: Eeplying to yours of January 21 would say that it will be all right to make the fillets on the larger size shown on your templet. This is a fillet of 1.32 radius. You can therefore make the die accordingly. This is to confirm our telephone message of this morning.</p> <p>“Very truly,</p> <p>“NORTHERN Electrical' Manufacturing Co.</p> <p>“E. B. Duncan, Superintendent;”</p> <p>that when the machine was completed the plaintiffs took it to the defendant’s shop and it was tried; that defects in its operation were found, and, after tailing it back and forth several times, it was finally left at the defendant’s shop in good ' condition, so that it would do good work, and that a bill was presented to the defendant for $278.14; that immediately after the presentation of the bill the plaintiffs received by mail the following letter from the defendant:</p> <p>“6 — 1—’01.</p> <p>“Parr & Kroneke, City.</p> <p>“Gentlemen: We are in receipt of your invoice dated May 31, for $278.14, covering labor and material on gang die furnished us on our order 6648. We are very much surprised to note the charge. By reference to our order you will note that it states price to be forty cents per hour, total cost not to exceed $100.00. We presume the party who rendered the bill was not familiar with the terms of lie order, and we therefore request that you render us a correct invoice, upon receipt of which we-will be pleased to pass same to your credit.</p> <p>“Yours truly,</p> <p>“Northern Electrical Co.,</p> <p>“By A. O. Eox, Vice Prest, and Mgr.”</p> <p>There was also evidence to tbe effect that Duncan gave general orders around tbe defendant’s shop and employed men to work therein; that one Drohan, who succeeded Duncan as superintendent of defendant’s shop in May, 1901, told the plaintiff Kroncke, when the bill was presented, that the die had been accepted; that the defendant’s officers refused to pay the bill as rendered.</p> <p>At the close of the plaintiffs’ evidence, the defendant moved that a verdict for the defendant be directed on the ground that no authority to make a contract by Duncan had been shown. This motion was overruled by the court in the following terms:</p> <p>“I think the relationship of the party dealing with the plaintiffs, as shown by the facts and circumstances of the case, the authority by him assumed concerning the matter from beginning to end, the surrounding facts showing that it was at the home office and shop, and the action of the company in relation to his conduct demand that the motion be overruled.”</p> <p>The testimony for the defendant tended to show that the die did not do good work and was never accepted; that upon the presentation of the bill the defendant’s responsible officers offered to pay the plaintiffs $100 for the die, and at the same time stated that it was not satisfactory, but the plaintiffs refused the offer. The defendant also offered in evidence the written contract made between it and Duncan constituting Duncan superintendent of the shop, which contract defined Duncan’s duties as such superintendent, but gave him no power to purchase or contract for machinery. This contract was ruled out by the court, on the ground that the facts and circumstances which came to the plaintiffs’ knowledge must determine the question of Duncan’s authority. The defendant also offered to prove that the die did not operate satisfactorily to its officers, but this testimony was also ruled out. The defendant also offered to prove that the responsible officers of the company had no knowledge that Duncan had assumed to make a contract with tbe plaintiffs for tbe construction of tbe die at forty cents an bour, but tbis testimony was excluded. Tbe defendant also offered a copy of a requisition made by Mr. Duncan upon tbe storekeeper of tbe defendant company in tbe usual course of tbe defendant’s business, as follows:</p> <p> “Requisition. </p> <p>“Dept Mfg. No. 4115.</p> <p>“Wanted account Mfg. Advice No. -Date 11-5, 189 — .</p> <p>“Instructions:</p> <p>Requisition must state where Articles are to be used and must be sent to storekeeper for endorsement before being signed by applicant “P. 0. Number. 1 gang die per drawing.</p> <p>No. E2195.</p> <p>Erom Parr & Ford.</p> <p>Price 40c. per bour. Not to exceed $100.00 total.</p> <p>Die to be subject to our approval.</p> <p>“[Signed] F. B. D.</p> <p>“Storekeeper’s Endorsement-</p> <p>“Approved NortherN Electrical Meg. Co.</p> <p>“A. O. F.”</p> <p>Upon objection tbis paper was also excluded. It further appeared that Duncan left tbe employ of tbe defendant in May, 1901, and be was not called as a witness.</p> <p>At tbe close of tbe evidence tbe defendant renewed its motion to direct a verdict, but tbe same was overruled. A special verdict was demanded by tbe defendant, and the following questions were prepared therefor:</p> <p>“(1) Was there an agreement entered into and made between tbe plaintiffs, as copartners, and tbe defendant company,, whereby tbe plaintiffs were to construct and furnish the material for tbe gang die of tbe kind and size as described in tbe testimony? (2) Was it a part of such agreement that tbe defendant company was to pay the plaintiffs for tbe construction of such gang die at tbe rate of 40 cents per bour for tbe necessary labor to construct it ? (3) Was it a part of such agreement that tbe defendant company was to pay tbe plaintiffs for tbe material necessarily required to construct sucb die? (4) Was it understood and agreed by tbe parties to sucb agreement that tbe die was to be subject to tbe approval of tbe defendant company? (5) Was it understood and agreed that tbe die was not to be accepted by tbe defendant company unless it operated satisfactorily? (6) Did tbe die constructed by tbe plaintiffs for tbe defendant pursuant to the arrangement made between tbe parties operate satisfactorily? (7) Was tbe die actually approved and accepted by tbe defendant company ?”</p> <p>Tbe court thereupon directed that each of the first five of said questions be answered in tbe affirmative, on tbe ground that there was no dispute in tbe evidence, and no exception seems to have been taken by either party to this ruling. Tbe court thereupon submitted tbe last two questions to tbe jury, and in substance charged tbe jury, with reference to tbe first question, that if they found that tbe die operated satisfactorily then their answer would be “Yes,” and if not then their answer would be “No”; and as to tbe second question, if they found that tbe company bad approved and' accepted tbe die as satisfactory under tbe contract, then their answer would be “Yes,” but if they found to tbe contrary then their answer would be “No.” The jury answered both questions which were submitted to them in tbe affirmative. A motion to set aside tbe verdict and for a new trial was overruled, and judgment was rendered for the plaintiffs for $290.67 and costs; and the defendant appeals.</p> <p>As to tbe construction of tbe clause “not to be accepted unless it operates satisfactorily,” they cited Mechem, Sales, § 664; Sing-* erly v. Thayer, 108 Pa. St. 291, 2 Atl. 230; McGormiclc II. M. Go. v. Ghesrown, 33 Minn. 32, 21 N. W. 846; U. S. Electric F. A. Go. v. Big Rapids, 78 Mich. 67,-43 N. W. 1030; Plano Mfg. Go. v. Ellis, 68 Mich. 101, 35 N. W. 841; Gamp-bell P. Go. v. Thorp, 36 Fed. 414; Manny v. Glendinning, 15 Wis. 50; Exhaust V. Co. v. C., M. & St. P. B. Co. 66 Wis. 218; Bannon v. C. Aultman & Co. 80 Wis. 307.</p> <p>They contended that the contract made with Duncan binds the company. 21 Am. & Eng. Ency. of Law (2d ed.) 855; Costello v. Ten Eyche, 86 Mich. 348; Van Etta v. Evenson, 28 Wis. 33, 37; Pratt v. Oshkosh M. Co. 89 Wis. 406; Cannon v. Henry, 78 Wis. 167; Heald v. Hendy, 89 Cal. 632; Peck v. Dexter 8. P. & P. Co. 164 N. Y. 127; Boche v. Pennington, 90 Wis. 107; Shepherd v. Mil. G. L. Co. 11 Wis. 234, 237; Ladd v. Hildebrant, 27 Wis. 135, 144; McDermott v. Jackson, 97 Wis. 64; Meehem, Agency, § 105; Gulick v. Grover, 33 N. J. Law, 463. The die operated satisfactorily and was approved and accepted. Under such a provision as that in this contract, “that which the law will say a contracting party ought in reason to be satisfied with, that it will say he is satisfied with.” Gearty v. New York, 171 N. Y. 61, 72; Hawkins v. Graham, 149 Mass. 284; Keeler v. Clifford, 165 Ill. 544, 46 N. E. 248; Folliard v. Wallace, 2 Johns. 395; Duplex S. B. Co. v. Garden, 101 N. Y. 387; Hummel v. Stern, 36 N. Y. Supp. 443; Clark v. Bice, 46 Mich. 308, 9 N. W. 427; Bichison v. Mead, 11 S. D. 639, 80 N. W. 132.</p>

<p> Fraud: Husband and wife: Conveyance by husband pending divorce action: Evidence. </p> <p>T. It is not per se fraudulent, as against a wife suing for divorce, for the husband to convey his property without her knowledge, or to withhold such a conveyance from record.</p> <p>2. The fraud in such a case must consist in a purpose on the part of the husband, shared or at least known by the grantee, to defeat the wife’s rights; and such purpose must be clearly and satisfactorily established.</p> <p>3. A finding of the trial court in this case, that a conveyance of ' land by the husband — made for a full consideration, after he had, as a division of property, assented to by the wife, conveyed at least one half of his property, including his residence, to a trustee for her — was without consideration and for the purpose of defrauding the wife, is held to be against the overwhelming preponderance of the evidence.</p>

<p>Appeal from orders of tbe circuit court for Douglas county: A. J. ViNJE, Circuit Judge.</p> <p>This is an action in equity brought to enjoin tbe city of Superior and its officers from enforcing a certain ordinance adopted by tbe common council of tbe city. Tbe complaint alleges, in substance, that tbe plaintiff is a large manufacturer of malt liquors, having its place of business in tbe city of Milwaukee; that for more than one year last past it has been conducting and is still conducting a considerable business at tbe city of Superior in tbe sale of malt liquors, and has- a warehouse or depot in said city, which it uses in said business, of the value of $2,000; that in the course of the transaction of such business it ships the said beer in barrels, kegs, and bottles to the said warehouse or depot, where it has an agent who delivers the same to customers in various parts of the city in fulfilment of orders taken, therefor by its said agent; that on the 25th day of November, 1895, a certain ordinance, entitled “An ordinance relating to licenses for the sale of intoxicating liquors,” was adopted by said city, the first section of which ordinance is as follows :</p> <p>“It shall be unlawful for any person to sell, give away, barter, furnish or dispose of in any manner, either directly or indirectly, or by agent or employee or otherwise, any spirituous, vinous, malt, or fermented or intoxicating liquors, for any purpose whatever, without first having obtained a license therefor from the common council of the city of Superior as hereinafter provided</p> <p>that the remaining sections of said ordinance prescribe the methods by which a license is to be obtained, the bond to be given therefor, and the amount to be paid for the same, such provisions being substantially similar to the provisions contained in sec. 1549, Stats. 1898, except that the bond is required to contain certain additional provisions, and the license fee is fixed at $500 per year, the penalty for the violation of any provision of sec. 1 being fixed at a sum not lass than $50, nor more than $100; that the said ordinance is unauthorized and void; that the defendant city and its officers threaten to institute proceedings against the plaintiff under said ordinance from time to time on account of the prosecution of the plaintiff’s said business without license, and that thereby the plaintiff will be subjected to a multiplicity of suits and compelled to pay out large sums in fines; and that its business will be ruined unless the prosecution of such suits be enjoined.</p> <p>A preliminary injunctional order having been obtained upon this complaint, the same was, upon motion, vacated by the trial court, and at the same time a general demurrer to tbe complaint was sustained, and tbe plaintiff appeals from botb of said orders.</p> <p>They contended, inter alia, that, assuming that tbe charter and ordinance should have a construction similar to that of tbe general statutes (Michels v. State, 115 Wis. 13), tbe ordinance is discriminative and void, since under it a local brewer may manufacture and sell his product in Superior without tbe payment of any license fee, while the plaintiff — which manufactures its product in Milwaukee — cannot lawfully sell it in Superior without first paying a license fee of $500. XIVth Amend. U. S. Const.; Cooley, Const. Lim. ch. 11, p. 490; Barbier v. Connolly, 113 TJ. S. 27; Gulf, C. & S. F. R. Go. v. Ellis, 165 TJ. S. 150; Anderton v. Milwaukee, 82 Wis. 279; Cairo v. Feuchter, 159 Ill. 155, 42 N. E. 308; Monmouth v. Popel, 183 Ill. 634, 56 N. E. 348; Lake View v. Tate, 130 Ill. 247; Scott v. Donald, 165 TJ. S. 58; Gould & Co. v. Atlanta, 55 Ga. 678; Simrall v. Covington, 90 Ey. 444; Brooks v. Mangan, 86 Mich. 576; Morgan v. Orange, 50 N. J. L. 389; Sayre v. Phillips, 148 Pa. St. 482.</p> <p>to the point that the ordinance is not discriminative and is a proper exercise of the police power, cited Reymann B. Co. v. Brister, 179 TJ. S. 445; Rhodes v. Iowa, 170 TJ. S. 413; Minneapolis B. Co. v. McGillivray, 104 Fed. 258; People ex rel. Einsfeld v. Murray, 149 N. Y. 367; Adler v. Whitbeck, 44 Ohio St. 574; State v. Cassidy, 22 Minn. 312.</p>

<p>Appeal from a judgment of the circuit court for Chippewa county: A. <T. ViNJE, Circuit Judge.</p> <p>The appeal is from a judgment of the circuit court, which, in reversal of the county court for Chippewa county, admitted to probate a proposed will of George A. Gillmor, who died December 23, 1900. The instrument bore date June 11, 1889. The two attesting witnesses subscribed a certificate declaring the instrument to have been “signed, published, and declared by the said testator to be his will and testament, in the presence of us, who have signed our names at his request and by his express direction as witnesses thereto, in his presence and in tbe presence of each other.” Hollon Richardson, the survivor of the subscribing witnesses, testified, by deposition, very indefinitely to the transaction of executing the will; his testimony failing in several respects to establish the steps necessary under our statute. The trial court found as facts that the instrument was duly signed by George A. Gillmor as and for his will, and thereafter duly attested and subscribed by the two witnesses in the manner specified in their attestation above quoted, and that the will was in all things duly executed. Erom such judgment the contestant appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Douglas county: E. W. Heums, Judge.</p> <p>This is the same action considered upon demurrer to the complaint, reported in 111 Wis. 499, 84 N. W. 27, 85 N. W. 145, 87 N. W. 481. It has since been tried; the evidence upon the trial consisting in the main of the records of the proceedings and profert of the documents referred to in the complaint, with some oral evidence in addition. The findings are substantially in accordance with the facts as set forth in the complaint, so far as the same are material. Certain variances between the facts stated in the complaint and those appearing on the trial and certain additional facts are sufficiently stated in the opinion. Judgment was rendered in favor of the plaintiff on July 10, 1902, adjudging that the legal title held by the defendant, John F. Hill, be set over and transferred to tbe plaintiff, Warren E. McCord, as of tbe date of tbe patent from tbe United States, and tbat tbe defendant and all claiming nnder bim be barred from having or claiming any interest, either legal or equitable, and be restrained from setting up or claiming, any right, title, or interest in tbe land, or in any timber standing or growing thereon on January 12, 1897, or at any time thereafter’. From tbat judgment tbe defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Polk county: A. J. YiNje, Circuit Judge.</p> <p>Action to quiet title. The complaint is in the usual form. Defendant answered, alleging that she was the only heir at law of Benjamin F. Stetson, deceased; that in his lifetime he was owner and possessor of United States land warrant No. 4,571, calling for 420 acres of government land; that one B. P. Pitman, as agent of Stetson, selected and entered under said land warrant tbe lands in question, to wit, tbe southeast quarter of tbe southeast quarter of section 12, town 33, range 19 west, in Polk county, Wisconsin; that plaintiff claims under said B. P. Pitman, and that tbe only way tbe latter became interested in tbe land was through an assignment by Stetson of tbe land warrant, made August 10, 1861, by which tbe said warrant was conveyed to Pitman to secure payment of a promissory note for $34.07 with interest thereon, tbe principal and interest being made payable on or before tbe 1st day of November, 1861; that the assignment was made in connection with an agreement in writing by Pitman to recon-vey the property assigned to Stetson upon bis paying tbe note; that tbe note was paid and that thereby tbe mortgage debt of Pitman was extinguished; that by reason of tbe facts defendant is tbe sole owner of tbe lands in question, and that plaintiff has no right, title, or interest therein.</p> <p>Tbe following documentary evidence was produced upon tbe trial: A receipt given by B. P. Pitman to Benjamin E. Stetson for tbe land warrant mentioned in tbe answer, tbe receipt specifying that Pitman was to locate tbe land called for by tbe warrant and to have $25 for bis services and reimbursement for all sums paid for officer’s fees; a certificate of location of the land in question made by tbe proper officers of tbe United States land office at Hudson, Wisconsin; a United States patent of tbe land to Stetson; a note apparently made by Stetson, corresponding to tbe one mentioned in tbe answer, written on tbe same sheet with an agreement made by B. P. Pitman to tbe effect that if Stetson should pay tbe note Pit-man would assign to him all bis, Pitman’s, right, title, and interest in tbe property in question and two other tracts of land, tbe three tracts together corresponding with tbe acreage called for by tbe land warrant; an assignment on tbe certificate of location before mentioned, in terms conveying such certificate and tbe land therein described to Pitman, and authorizing him to receive the patent therefor, the said assignment being executed by Stetson and his signature thereto being witnessed by one witness and the execution thereof properly acknowledged. The patent, certificate of location, and assignment thereon, came from the possession of plaintiff, and were found among his father’s papers. The note and agreement came from the possession of defendant, and were found among her father’s papers.</p> <p>Due proof was made that B. P. Pitman exercised acts of ownership over the land by annually taking wood therefrom for his ordinary purposes, and cutting some timber, for a period of more than twenty years after he became possessed of the certificate of entry and the.assignment; that he exercised such acts of ownership up to the time of his death, and that whatever interest he had in the property passed by his will to plaintiff; that plaintiff continued to use the property substantially the same as his'predecessor; that plaintiff and his father have paid the taxes on the property during all the time they exercised acts of ownership over the same. There was further proof that the land was wild and unoccupied territory during all the time subsequent to the entry, except as the same was used as a woodlot as before indicated. The land was entered June 6, 1859, by Stetson. It was patented to him August 3, 1860. The assignment of the certificate of entry is dated August 10, 1861.</p> <p>The court found, respecting the entry of the land, the issuance of the patent therefor, and the assignment of the certificate of entry, in accordance with the foregoing; that Stetson, for a valuable consideration, August 10, 1861, sold and assigned the land warrant mentioned, and the land described in the complaint, to plaintiff’s father, who, from 1873 to the time of his death, November 17, 1896, used the land annually for a supply of fuel and timber for his ordinary use, and that he paid the taxes on the property~during all that period: that whatever interest he had at the time of his death passed by will to plaintiff; and that plaintiff was the owner in fee simple of the property at the time of the commencement of this action.</p> <p>Upon such facts the court decided that plaintiff was entitled to the relief prayed for, and judgment was entered accordingly.</p> <p>They contended, inter alia, that the assignment of the certificate of location, intended only as a mortgage, was no such color of title as would enable Pitman to hold adversely under secs. 4211, 4212, Stats. 1898. A mortgage is not a conveyance of the premises. Massie v. Meeks (Tex. Civ. App.) 28 S. W. 44; Johnson v. Davidson, 162 Ill. 232, 44 N. E. 499. The relation between the mortgagor and mortgagee is such that the former cannot hold adversely to the latter under statutes of limitation which allow adverse possession without any claim to title, unless the mortgagee has done some act which will assert the adverse character of his possession. 1 Am. & Eng. Ency. of Law (2d ed.) 817. The rule applies equally well to' one who takes possession under a deed absolute on its face, but which is in fact a mortgage. Husheon v. Husheon, 71 Cal. 407, 12 Pac. 410.</p>

<p>Register in probate: Salary: County board: Power to prohibit payment: Mandamus to county cleric.</p> <p>1. Under ch. 303, Laws of 1895 (secs. 694, 2464a, Stats. 1898), when a county hoard has fixed a salary for a register in probate, and has not changed it, and has collected and appropriated the money therefor, it cannot prohibit the payment of such salary.</p> <p>2. Where the county board has by a recorded vote directed that orders be issued at the end of each month to pay the salary which it has fixed for the register in probate and for which it has raised the money by taxation, mandamus will lie to compel the county clerk to sign such orders — that being a ministerial duty clearly imposed by subd. 3, sec. 709, Stats. 1898.</p>

<p>Appeal from a judgment of tbe circuit court for Cbippewa county: A. J. ViNje, Circuit Judge.</p> <p>Tbe issues raised by tbe pleadings and tbe cause of action of plaintiff will sufficiently appear by tbe findings of tbe trial court bere given, in tbe language thereof as near as tbe same is necessary in order to clearly indicate tbe idea therein contained: (1) July 28, 1897, and prior thereto, plaintiff owned a vendee’s interest in tbe land described in tbe complaint, under a contract made in tbe usual form with him by tbe bolder of tbe legal title, A. C. Bruce, upon which contract there was due tbe sum of $42. (2) At tbe time specifically mentioned plaintiff, being indebted to tbe defendant loan company in tbe sum of $75, agreed to assign bis land contract to it, tbe company to thereupon pay tbe balance due thereon to A. C. Bruce, take a deed from him, and bold tbe title to tbe property as security for tbe payment to it of tbe $42 and the $75, tbe total sum being $117, with interest thereon. (3) Tbe agreement made as aforesaid was properly carried out, the same being evidenced as follows: Tbe contract was assigned to tbe loan company by an instrument in writing in .tbe usual form. Tbe company thereupon gave plaintiff a written instrument in tbe form of a receipt and agreement. Tbe receipt acknowledged tbe transfer to it of tbe contract, contained a declaration of tbe purpose of sucb transfer and an agreement tbat it was to take á deed of tbe land, paying tbe vendor in tbe contract tbe balance due bim, and convey tbe land to plaintiff at any time witbin two years of tbe date of tbe paper on payment by bim to tbe loan company of $111 with interest from sucb date at eight per cent, per annum. Thereafter tbe company paid Bruce tbe amount due bim and took a conveyance of tbe land in accordance with tbe agreement aforesaid. (4) August 24, 1899, the loan company conveyed tbe land to defendant Allen, who at tbe time thereof bad knowledge of all tbe facts respecting his grantor’s interest in tbe property. (5) March 23, 1900, said Allen contracted with defendant Anderson to sell to bim one forty-acre tract of land, be having knowledge of plaintiff’s rights in tbe property. (6) August 24, 1899, Allen procured a tax deed of tbe land to be taken in tbe name of J ennie A. White, she allowing her name to be used as a mere cover for a transaction tbat was really his own. (7) May 1, 1900, Allen, in tbe name of Jennie A. White, contracted with Carl Osse to sell bim one forty-acre tract of tbe land for $115, and there is now unpaid upon sucb contract $90, with interest thereon at tbe rate of six per cent, per annum. (8) May 31, 1900, said Allen contracted with IT. Erickson to sell bim two forty-acre tracts of tbe land, Erickson having at tbe time thereof full knowledge of plaintiff’s rights in tbe property. (9) Said Allen has taken, either in bis own name or in tbe name of J ennie A. White, tax certificates on the property for tbe years 1896, 1897, 1898, and 1899, and be still controls sucb certificates. He expended tbe sum of $2 in taking tbe tax deed aforesaid. (10) Before tbe commencement of this action plaintiff tendered to Allen full payment of tbe amount due upon tbe contract with tbe loan company, together with a sufficient sum to reimburse bim for all bis expenditures to protect tbe title to tbe property, together with interest upon all such expenditures to which be was entitled by law. (11) Tbe balance legally and equitably due said Allen from plaintiff, charging tbe latter with tbe amount due upon bis contract with tbe loan company and tbe expenditures made by the company for tax claims and tbe cost of tbe tax deed with interest thereon, and crediting bim with tbe amount received by Allen upon tbe Osse contract, is $132.52, wbicb sum plaintiff has deposited with tbe clerk of tbe court subject to tbe court’s order.</p> <p>As conclusions of law tbe court found that tbe transactions between plaintiff and tbe loan company created tbe relation of mortgagor and mortgagee between them; that Allen acquired no better right to tbe land through tbe deed from tbe loan company than such company possessed; that tbe vendees in tbe land contracts with Allen acted, in making tbe same, with knowledge of tbe facts in regard to plaintiff’s rights, and stood in no better position than Allen; that Osse, as an innocent purchaser, should pay tbe balance due upon bis contract to tbe plaintiff, who should have tbe benefit, in tbe accounting with Allen, of tbe amount paid to thé latter upon said contract ; that tbe tax deed and the tax certificates gave Allen and 17ennie A. White no other right than to be reimbursed for tbe money expended therefor, with tbe interest provided by law; that on a just and true accounting of all the matters, tbe balance equitably payable to defendant Allen, tbe same to covér all interests of defendant Jennie A. White, is $132.50; that judgment should be rendered accordingly; that it should require tbe Osse contract to be assigned to plaintiff, a quitclaim deed to be made to bim by Jennie A. White, all tax certificates in tbe bands of A Men to be delivered to bim, suitable instruments to be executed and delivered to bim by defendants to release all their rights of record in the property. There were some further provisions in reference to tbe judgment to be rendered to fully settle the equities between tbe parties. Judgment was rendered accordingly. Tbe defendants Wisconsin Mortgage Loan Company, Raymond Allen, and Jennie A. White appeal.</p>

<p>Eeboe to review a judgment of the municipal court of the eastern district of Waukesha county: D. S. Tullar, Judge.</p> <p>A writ of error to review conviction and sentence for assault with intent to commit rape. The testimony of the complaining witness was generally to the effect that as she was going home from church in the city of Waukesha, about 9 o’clock in the evening of March 2, 1902, she was accosted by plaintiff in error with the request that he might escort her home, which she repudiated indignantly; whereupon, after a few words, he made improper proposals to her, and, seizing her, threw her down and made the attempt constituting the offense charged; but, upon her outcry for help and threat of her husband’s vengeance, he fled. The defense rested mainly on evidence of the plaintiff in error as to his conduct that evening, tending to prove an alibi, in some of the details of which he was confirmed by other evidence. Identification by the complaining witness was positive, but, to confirm it, plaintiff’s shoe was taken after his arrest and compared with tracks in the snow at the place of the alleged assault, with which it was claimed to correspond.</p> <p>to the point that by the compelling of the accused to give up his shoe when in custody and under duress he was obliged to furnish evidence against himself, in violation of his constitutional rights, cited Ex parte Bushett, 9 Am. Grim. Rep. 760; State v. Nowell, 58 N. H. 314; Ex parte Boscowitz, 84 Ala. 463; Temple v. Comm. 75 Ya. 892; Prinfz v. Cfheeney, 11 Iowa, 469; People v. Mather, 4 Wend. 230; People v. Haeleley, 24 N. Y. 84; People v. Sharp, 107 N. T. 427; 1 Burr’s Trial, 245; Stokes v. State, 5 Baxt. 619, 30 Am. Rep. 72; People v. Mead, 50 Midi. 228; Day v. State, 63 Ga. 669; Blackwell v. State, 67 Ga. 76, 44 Am. Rep. 717.</p>

<p> Criminal law and practice: Proof of venue: District attorney: Assistance by partner: Wife as witness: Former conviction: Proof of good reputation for veracity: Prejudicial error: Record: Presence of accused. </p> <p>1. On a criminal prosecution a map of certain sections of land was introduced in evidence, such sections being identified as being in tbe county where tbe trial was bad, and tbe place where tbe crime was committed was positively identified as being located upon tbe territory covered by tbe map. Held, sufficient proof of tbe venue.</p> <p>2. It was proper, under sec. 4504, Stats. 1898, to permit an attorney to assist in tbe prosecution of a criminal case, where it appeared that be was tbe partner of tbe district attorney, was not under pay, was without bias, was not employed by any private person, and was assisting tbe district attorney with bis consent.</p> <p>3. Tbe wife of defendant is not a competent witness either for or against him upon a prosecution for an assault upon a third person, in tbe absence of any showing that she bad acted as bis agent in any respect.</p> <p>4. Tbe fact that defendant had been convicted of another offense having been shown by bis cross-examination for the purpose of affecting bis credibility as a witness in bis own behalf, be was entitled to introduce testimony that bis reputation for truth and veracity was good; and tbe exclusion of such testimony was prejudicial error.</p> <p>5. Failure of tbe record to show that tbe accused was present in court when tbe verdict was rendered is fatal to tbe judgment, although tbe clerk’s minutes affirmatively show bis presence on tbe previous day when tbe jury was sent out.</p>

<p> Waters: Artesian wells: Rights of owners: Prohibiting waste: Constitutional law: Police power. </p> <p>1. The evidence in this case — showing, among other things, that within an area about two and one-half by five miles artesian wells might successfully be drilled and flowing water reached either in a stratum of limestone or in a stratum of sandstone at a depth of about 200 feet, and that when water was reached there was no sudden drop of the drill bit, but it rested on the bottom of the well — is helé not to sustain a finding that the water in such wells was supplied by a subterranean stream with a defined channel, but to show that it came from percola-tions through an inclined stratum of pervious rock lying between impervious strata. ■</p> <p>2. The owner of land had, at common law, a right to sink wells thereon and use the water from them, supplied by percolation, in any way he chose, or allow it to flow away, even though he thereby diminished the water in his neighbors’ wells, and even though in so doing he was actuated by malicious motives.</p> <p>3. Such right of the landowner is a property right, which cannot be taken away or impaired by legislation, unless by the exercise of the right of eminent domain or by exercise of the police power.</p> <p>4. Ch. 354, Laws of 1901 (providing that any owner or operator of an artesian well who permits it to discharge more water than is reasonably necessary for his use, thereby materially diminishing the flow of water in any other artesian well in the same vicinity, shall be liable for all damages thereby sustained by the owner of the other well), is not a proper exercise of the police power. In effect it takes private property for private use and without compensation, and is therefore void.</p> <p>See Barclay v. Abraham (Iowa) 96 N. W. 1080. — Rep.</p>

<p> Corporations: Insolvency: Enforcing all liabilities of directors, etc., to creditors, in single action: Btock subscriptions, how paid: Notes: Unlawful dividends: Liability of directors: Banks and banking. </p> <p>1. In a suit to enforce one of the liabilities mentioned in sec. 3223, Stats. 1898, all existing causes of complaint within the scope of that section, and all liabilities to which creditors as a class may resort to satisfy their claims, affecting the corporation involved, are germane thereto, and, with the primary right sought to he vindicated, constitute but one cause of action.</p> <p>2. Ch. 140, Stats. 1898, was framed with a view of having the matters referred to in the preceding paragraph worked out in a single suit through the machinery of the Code, which contemplates a primary right as drawing to it all minor matters germane thereto and including the whole as but one controversy, regardless of how complicated such matters thus presented for litigation may he as between plaintiffs and defendants or as between the parties on either side, and of whether 'such matters or some of them might of themselves form the subject of a primary right between the parties chiefly concerned therein, — • enabling the court to close the whole subject by a single decree, giving to each party to the litigation, regardless of his location upon the record, the particular measure of relief as against any other party or parties, to which he is entitled.</p> <p>3. The language of this court as regards this class of cases in Hurllmt v. Marshall, 62 Wis. 590, 22 N. W. 852, is reaffirmed: “This suit, when commenced, is exclusive of all actions on behalf of the creditors of such an insolvent bank, and all the creditors are compelled to seek their remedy therein, and if there is any liability of the directors, stockholders, or officers of the bank to the bank, or to its creditors, in any event or contingency, such liability must be enforced, if at all, in this one suit, which cannot be discontinued before final judgment without the consent of every creditor who chooses to appear and prosecute.”</p> <p>4. The words above used, “liability of the directors, stockholders, or officers ... to the bank, or to its creditors,” mean liabilities to the bank forming part of the trust fund in which the creditors are concerned, and liabilities to creditors generally or to a class of them-, not individual common-law liabilities of individual directors to individual creditors, such as one for deceit. It includes, among others, all liabilities created by law for the protection or benefit of the corporation or its creditors such as those created by sec. 1765, Stats. 1898.</p> <p>5. The language of sec. 1765, Stats. 1898, “capital fully paid in,” contains the idea of full payment of the authorized capital into the corporation, either in money or its equivalent in property, effecting an extinguishment of the subscription liability for the stock, and an actual addition to the capital of the corporation, not a mere agreement to contribute to the capital stock.</p> <p>6. A subscriber for stock in a corporation does not contribute to its capital by his subscription or by changing the form of his indebtedness for stock from one upon a mere subscription to one upon, a note given for a subscription. The giving of a note in such, a case operates only to postpone the time of payment for the stock till the due date of the note.</p> <p>7. Sec. 1765, Stats. 1898, applies to hanking corporations.</p> <p>8. Such section renders directors of a corporation participating in the payment of dividends out of corporate property before the authorized capital has been fully paid in, regardless of any other circumstance, jointly and severally liable to the creditors of the corporation then existing as a class; that is, jointly and severally liable to the creditors, not so liable to each individual creditor,</p> <p>9. The liability having been fixed by operation of the statute upon the acts of the directors, the status of the creditors, and the condition of the capital of the' corporation, it cannot be extinguished by subsequent payment or collection of the unpaid capital.</p> <p>10. Sec. 1765, Stats. 1898, contains two distinct prohibitions: First, payment of dividends before the capital of the corporation shall have been fully paid in; second, payment of dividends thereafter other than out of the net profits of the corporation properly applicable thereto, such payment effecting a diminution of the corporate capital. The doing of either of the prohibited acts is made penal, conditioned, however, as to the second, that the corporation is either insolvent or in danger of insolvency, the directors not having reason to believe that there are sufficient net profits properly applicable thereto to pay the dividend without diminishing the corporate capital.</p> <p>11. The two parts of the section respecting the penal liability, the one relating to the first and the other to the second prohibition, are construed to have been used by the legislature in a disjunctive sense, not in a conjunctive sense.</p> <p>12. It is not necessary that a director should actively participate in the unlawful payment of a dividend in order to incur liability under sec. Í765, Stats. 1898. If he participates in such payment by having notice of and consenting thereto and participating in the benefits thereof he comes within the condemnation of the statute.</p> <p>[Syllabus by Mabshaix, X]</p>

<p>Appeal from a judgment of the circuit court for Columbia county: E. G. Siebeckeb, Circuit Judge.</p> <p>It appears and is undisputed that the testator, Edward McGee, formerly lived in Eond du Lac county, and then moved to and became a resident of Waushara county, where he died testate. Thereupon his widow presented a petition in due form to the county court of Eond du Lae county, praying that an instrument in writing, purporting to be the last will and testament of Edward McGee, deceased, be admitted to probate. After due notice such instrument was admitted to probate by the county court of Eond du Lac county, without objection, and at the request of the widow, the plaintiff, 0. Frank Brown, was appointed administrator of the estate with the will annexed, by that court. Brown qualified as such administrator, and letters of administration were issued to him by that court. Thereupon the heirs at law of said do-ceased commenced proceedings in that court to revoke such letters and the order appointing Brown as such administrator, and finally the heirs at law appealed to the circuit court for Eond du Lac county from the order, judgment, and decree of the county court of Eond du Lac county admitting the will to probate. Upon the hearing of such appeal, the circuit court for Eond du Lac county found, among other things, that the testator, Edward McGee, had changed his residence from Eond du Lac county to Waushara county, and was a resident of Waushara county at the time of his death, and reversed the decree of the county court admitting the will to probate. '</p> <p>Afterwards certain proceedings were had in the county court of Waushara county wherein and whereby the will was admitted to probate in that county Eebruary 20, 1900, and one Thomas Eearne was duly appointed administrator with the will annexed, and he thereupon qualified as such, and letters of administration were duly issued to him and he gave notice to creditors as required by law. The claim of the plaintiff was filed in the county court of Waushara county within the time required by law for filing claims against the estate of the deceased. Such claim was for $153.34, and was for expenses incurred by the plaintiff while acting as such administrator with the will annexed under such appointment by the county court of Eond du Lae county. The county court of Waushara county disallowed the claim, and the plaintiff appealed to the circuit court for Waushara county. In the latter court, when the cause was reached, objection was made to the reception of any evidence under the claim and, to enable the court to make proper ruling thereon, facts were stipulated,, in addition to those above stated, to the effect that the widow and administrator (plaintiff) acted in good faith in attempting to have the will probated in Eond du Lac county; that the county court of Eond du Lac county had no jurisdiction to probate the will; and that the claim is a reasonable one for tbe services rendered by the plaintiff while acting as administrator, if properly presented to the county court of Waushara county.</p> <p>Upon the foregoing stipulated facts, found by the court, and after hearing counsel for the respective parties, and the court being of the opinion that the county court of Waushara county “had no jurisdiction to allow said claim in the form presented,” and having sustained the objection to the reception of any evidence under the complaint, it was thereupon ordered by the circuit court of Waushara county that the appeal of the plaintiff from the order and judgment of the county court of Waushara county dismissing said claim of the plaintiff against the estate of Edward McGee, deceased, be dismissed, and that the estate of Edward McGee have judgment against the plaintiff for its costs and disbursements in this action; and judgment was thereupon ordered accordingly. Erom the judgment so entered the plaintiff appeals.</p> <p>To the point that the claim was in no event, in whatever form presented, a proper charge against the estate, they cited 1 Woerner, Administration (2d ed.) 417; Bradley v. Comm. 31 Pa. St. 522; Magiar v. McCombs, 66 N. 0. 345; 7 Am. & Eng. Ency. of Law, 441.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: A. J. Yxsje, Circuit Judge.</p> <p>On October 17, 1901, this action was commenced in the municipal court of Superior to recover $22.15, being a bill for groceries sold and delivered by the plaintiff to the de fendant, Armstrong, and at the same time the corporation known as the Duluth-Superior Milling Company was garnished. In the affidavit of garnishment it was stated, in effect, that said corporation was indebted to the defendant, Armstrong, and had “personal property, money, credits, or effects in its possession or under its control” belonging to Armstrong which were “not by law exempt from seizure or sale on execution, ot any provisional or final process issued from any court, or any proceedings in aid thereof.” On the return day of the summons — October 31, 1901 — neither Armstrong nor the garnishee appeared, and after waiting one hour the plaintiff took judgment against Armstrong for damages and costs in the sum of $30.90, and for the same amount against the garnishee, together with $3.95- costs of garnishment, making in all $34.85. On November 8, 1901, the garnishee paid into court, in satisfaction of such judgment against it, $34.85, and the same was thereupon applied and paid on such judgment and delivered to the plaintiff’s attorney.</p> <p>On November 9, 1901, Armstrong appealed to the circuit court from the judgment so rendered by the municipal court against the Duluth-Superior Milling Company, garnishee, for $34.85. On January 21, 1902, Armstrong, without leave of the court, filed an answer in said action so appealed to the circuit court, wherein he admitted his indebtedness to the plaintiff as claimed, but alleged, in effect, by way of defense and counterclaim, that at the time of the commencement of this action, and ever since, he was and had been a married man having a family dependent upon him for support, and during all of said time had been an actual resident of this state, living in Douglas county; that such indebtedness to him from the garnishee was wholly for wages, of which $8.25, and no more, had been earned by him when the action was commenced, October 17, 1901, and the balance of $26.60 was earned by him between that day and October 31, 1901, when the judgment was so rendered, and that the whole amount of $34.85 was exempt from execution because he had earned less than $60 per month for each of the three months next pi’eceding October 31, 1901 — all of which was well known to the plaintiff when this action was commenced; and that she had converted $34.85 to her own use.</p> <p>On the trial, June 10, 1902, the plaintiff moved to strike said answer and counterclaim. from the files of the court, which motion was denied, and thereupon an order was entered directing said answer and counterclaim served January 21, 1902, to stand as the defendant’s pleading in the cause, with leave to the plaintiff to reply thereto, which the plaintiff declined to do, whereupon the defendant moved for judgment under the pleadings on the counterclaim according to the prayer thereof, and the same was granted, and thereupon it was ordered that Armstrong do have and recover from the plaintiff $34.85 damages, and interest thereon from October 31, 1901, to the day of the trial, amounting to $1.23, making $36.08, and the costs of this action; and thereupon it was ordered and adjudged that the defendant, Armstrong,' do have and recover from the plaintiff $36.08 damages and the costs of tbis action, taxed and allowed at $18.20, making in all $54.28, and that Armstrong have execution against the plaintiff therefor. Erom that judgment the plaintiff appeals.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: A. J. Viuje, Circuit Judge.</p> <p>Ou October 16, 1901, the principal defendant, Christopher Guthrie, was a resident and citizen of the city of Superior, and had been for a long time prior thereto. He was on the day and year mentioned, hopelessly insolvent, being indebted in a much larger sum than the fair market value of all his property. ITe was indebted, among others, to J. Y. Earwell & Co., of Chicago, in the sum of $5,000, and to parties in St. Paul in the sum of $2,000. On October 16, 1901, said Guthrie made and delivered to the defendant garnishee, William TS. Muse, who was then and ever since has been a resident and citizen of Chicago, Illinois, an instrument in writing under seal, whereby he assigned and delivered to said Muse all his property, consisting of a stock of merchandise located at the city of Superior to the value of $5,000j for the express purpose, as stated in such deed of assignment, that Muse would receive the same in trust and would sell the property and reduce the same to money and distribute the proceeds thereof among the creditors of Guthrie pro rata, without preference. In pursuance of a mutual agreement between Guthrie and Muse at the time of making such assignment, Muse took immediate possession of the property so assigned and at once advertised the same for sale. On October 16, 1901, the plaintiff was, and prior thereto had been, a creditor of Guthrie, having a claim which accrued against him prior to that date. On November 5, 1901, the plaintiff, as such creditor, commenced an action in the circuit court for Douglas county against Guthrie, to recover the amount of such claim, and at the same time garnished Muse. Such proceedings were had in that action that judgment was duly entered therein upon such claim in favor of the plaintiff and against Guthrie May 21, 1902, for $323.74 damages and $19.63 costs, making in all $343.37.</p> <p>The affidavit of garnishment alleged, in effect, that the plaintiff’s claim against Guthrie was founded upon written contract and amounted to $323.50 over and above all setoffs, and that 'Muse was indebted to or had property in his possession or under his control belonging to Guthrie not exempt from .execution. On November 26, 1901, Muse answered under oath to the effect that he was not indebted or under any liability to Guthrie, and that he did not have in his possession or under his control any property, effects, or credits belonging to Guthrie, or in which he had any interest, and was in no manner liable as garnishee. Thereupon the plaintiff gave notice in writing that he elected to take issue with such answer of the garnishee, and would maintain that Muse was liable as garnishee.1</p> <p>The issue thus made was tried by the court, and at the close' of the trial the circuit court found the facts as above stated, and further found that at the time of the service of the garnishee summons upon Muse he had in his possession the stock of goods mentioned, which he has since sold and reduced to money, and now holds in lieu of said property, and as a part of the purchase price thereof, the sum of $400, the same being held subject to the order of the court in' this garnishee proceeding in lieu of the property sold; that Muse did not, at the time of receiving the assignment, nor at any other time, malee or file with the clerk of the circuit court or of the superior court for Douglas county any bond conditioned for the faithful discharge pf the trust reposed in him by such assignment, nor any bond whatever, nor was the assignment, or any other papers relating thereto or connected therewith, filed in the circuit court or any other court; that Guthrie had not, since the service of the garnishee proceedings herein, or at any other time, made or attempted to make any assignment of his property for the benefit of creditors other than to Muse, as stated, notwithstanding more than six months had elapsed since the service of the garnishee, and that none of the creditors of Guthrie had filed in that court a petition for the appointment of a receiver, and to prevent a preference being obtained for the plaintiff in his garnishee proceedings, except the defense interposed by the garnishee, nor has Guthrie or Muse or^any creditor of Guthrie commenced any proceedings or in any way invoked the jurisdiction of the court for the distribution of the assets or property of Guthrie; that after the assignment to Muse, and before the commencement of this action, Muse gave notice to the creditors of Guthrie that Guthrie’s liabilities were about $19,000 and his assets were $7,321.28, and that he, as such assignee, would sell such assets to the highest bidder at the time and place named, for cash, and that the proceeds would be held by him for the benefit of creditors, without preference, who had claims provable under an adjudication in bankruptcy.</p> <p>And as conclusions of law the court found, in effect, that the garnishee, William E. Muse, had at the time of the service of the garnishee summons herein and still has in his possession and under his control properties, moneys, credits, and effects belonging to the defendant, Guthrie, exceeding the amount of the plaintiff’s claim in this action, and that the plaintiff is entitled to judgment in this action against Muse in the sum of $343.37, the amount due upon his judgment against Guthrie, and to recover his costs and disbursements in this action; and judgment was ordered accordingly. From the judgment entered thereon accordingly the garnishee, William E. Muse> appeals.</p> <p>to the point that by the enactment of the bankrupt act all state statutes for the regulation, control, or transfer of the estates of insolvents were suspended and rendered inoperative, cited Torrens v. Hammond, 10 Fed. 900; In re Curtis, 91 Fed. 737; In re Bouse, H. & Co. 91 Eed. 96; Tuav. Garriere, 117 TJ. S. 201, 209; Butler v. Goreley, 146 U. S. 303; In re Worcester Go. 102 Eed. 809; In re Macon S. D. & L. Go. 112 Eed. 323; Carling v. Seymour L. Go. 113 Eed. 484; In re Romanow, 92 Eed. 510; lyre Sievers, 91 Fed. 366; Parmenter Mfg. Go. v. Hamilton, 172 Mass. 178, 51 N. E. 529; Foley B. L. Go. v. Sawyer, 76 Minn. 118, 78 N. W. 1038; Armour P. Go. v. Brown, 76 Minn. 465, 79 N. W. 522; Ilarbaugh v. Costello, 184 Ill. 110, 56 N. E. 363; E. G. Wescott Co. v. Berry, 69 N. II. 505, 45 Atl. 352; First Nat. Bank v. Ware, 95 Me. 388, 50 Atl. 24; Mauran v. Grown O. L. Go. 23 B. I. 344, 50 Atl. 331; Boese v. King, 108 U. S. 379; Ketcham v. McNamara, 72 Conn. 709, 46 Atl. 146; State by Atfy Gen. v. German Exch. Bank, 114 Wis. 436, 90 N. W. 570; 16 Am. & Eng. Ency. of Law (2d ed.) 642, and cases cited in note 6.</p> <p>Eor the respondent there was a brief by Base, Powell & DeForest, and oral argument by L. K. Base. '</p>

<p> Mortgages: Foreclosure: Judgment for deficiency: Action by one of the makers of mortgage note. </p> <p>Under sec. 3156, Stats. 1898 (authorizing plaintiff in an action to foreclose a mortgage to unite with his claim for foreclosure a demand for judgment for deficiency “against every party who may be personally liable for the debt secured by the mortgage, . . . if upon the same contract which the mortgage was given to secure”), one of'the makers of a note and mortgage, to whom, after default in payment, such note and mortgage were assigned, may bring suit to foreclose the mortgage and may demand judgment therein for deficiency against purchasers of the land who assumed to pay the mortgage debt, and also against his co-makers of the note and mortgage — the recovery against such co-makers not to exceed, in any event, their equitable proportion of the deficiency.</p>

<p>Appeal from a ¡judgment of tbo circuit court for Rock county: B. F. DuNwiddie, Circuit Judge.</p> <p>Action to recover compensation for personal injury. Tbe claim of tbe plaintiff, as set forth in ber complaint and maintained by ber evidence upon tbe trial, is that on June 5, 1895, while walking, in tbe exercise of ordinary care, on a public sidewalk located, on tbe east side of Cherry street in tbe defendant city, she stepped into a bole in such walk, of such a character as to render tbe way insufficient and out of repair, which condition bad existed for such a length of time that the city authorities ought to have known of and remedied the same; that by reason of such occurrence she lacerated the muscles and tendons of her right leg near the lower part thereof, particularly about the. ankle, fractured the small bone of such leg near the ankle joint, and fell upon the walk, bruising her person to some extent other than as particularly specified. All the conditions precedent to the commencement of the action were pleaded and established on the trial. The answer of the defendant put in issue all allegations of the complaint respecting the sidewalk being out of repair, the alleged defect therein having been known to the city authorities for a sufficient length of time to charge the city with negligence in not remedying the same, and the allegations as to .plaintiff’s having been injured upon the sidewalk at all, and also pleaded contributory negligence.</p> <p>Plaintiff was about thirteen years of age at the time of the 1 accident. There was no question upon the evidence but that at the time alleged she was injured quite seriously. The principal dispute was as to whether the injury occurred upon the sidewalk and by reason of the defect therein, or the plaintiff, while playing with some companions, climbed upon a fence at a point some fifty feet therefrom and fell from that place and thereby received the injury.</p> <p>The verdict of the jury was in plaintiff’s favor for the sum of $2,500. Upon a motion duly made to vacate the verdict and grant a new trial because the same was contrary to the evidence, the court denied the motion on condition of plaintiff’s remitting from the damages found in her favor all except the amount of $800. The condition was submitted to by plaintiff, and judgment was rendered upon the vérdict. From that this appeal was taken.</p> <p>The cause was tried three times prior to the trial in question, upon each of which occasions a verdict was given in plaintiff’s favor and judgment was rendered thereupon, and upon appeal therefrom was reversed by this court. The first verdict was for $1?500. The trial as to" that is reviewed in 96 Wis. 461. Tbe second verdict was for $2,500. A history of that will be found reviewed in 107 Wis. 436, 83 N. W. 695. The third verdict was $2,800. The judgment rendered thereon will be found reviewed in 111 Wis. 348, 87 N. W. 241, 1087.</p> <p>Prior to the first trial plaintiff was examined otherwise than as a witness and was examined upon each of the trials, the result being that upon five different occasions, under oath, she told the story of her injury. The motion for a nonsuit and the motion to set aside the last verdict and grant a new trial were based largely upon inconsistencies in the several narrations given by plaintiff as aforesaid. Her first story was that she, with two companions, Matie Ennis and Sarah Den-ning, while on their way to the home of a Mr. Denning on the east side of Cherry street, met several little boys about 120 feet from the premises of Mr. Denning; that her companions accepted an invitation from the boys to play; that she declined upon the ground that her mother had forbidden her to play; that the children all proceeded north on the east side of Cherry street, plaintiff’s companions running on before her, all except Matie Ennis quickly leaving her; that as she proceeded along she conversed with the Ennis girl; that when she arrived near the corner of Mr. Denning’s property at a point where there was an alleyway to the right, she caught her foot in a hole in the sidewalk and fell down; that she was perfectly familiar with the condition of the sidewalk, having observed it on many previous occasions; that she thought, however, at the time in question, that the defect was further on; that her attention was diverted by watching the children at play; that when she fell the Ennis girl was a few feet from her and the two were conversing together; that none of the other children was in sight; and that after she fell she sat awhile and then got up and tried to walk and fell again, when she cried and the girls came back to her.</p> <p>Upon tbe second occasion plaintiff told ber story tbis way: Sbe and tbe two little girls, Matie Ennis and Sarab Denning, while on their way to Mr. Denning’s, met spine little boys, and all except plaintiff commenced to play with them. Sbe declined to play because ber mother bad forbidden ber to do so. Tier companions, with tbe other children, proceeded ahead of ber at their play. Before sbe reached tbe place of tbe injury all of ber companions were out of ber sight, tbe girls having gone down an alley, which turned off to tbe right on the south side of Mr. Denning’s property, tbe south line thereof being marked by a fence. When sbe arrived near tbe alley sbe stepped into a bole in tbe sidewalk and fell. In trying to get up sbe slipped and fell again. Sbe then got upon her feet and went down tbe alley a short distance, when sbe fell again and commenced crying and calling for tbe girls to come back. At tbe time she fell there was no one in sight so far as sbe could remember. Sbe was not looking for any boles in tbe sidewalk. Sbe talked with Matie Ennis after the girls commenced playing, as sbe walked north on the sidewalk, but Matie soon ran off so fast that tbe conversation ceased. Matie and all tbe rest were out of sight, as indicated, at tbe time of the accident.</p> <p>Upon tbe third occasion plaintiff’.s story was told substantially thus: While on ber way to Mi*. Denning’s with Matie Ennis and Sarab Denning, they came up with some boys who invited them to play. Tbe invitation was accepted by all except plaintiff. Sbe declined upon tbe ground that her mother had forbidden her to play. Tbe 'girls and boys proceeded at their play north on tbe sidewalk on tbe east side of Cherry street. There were three girls at tbis time. Eor a time after the playing commenced Matie Ennis remained near tbe plaintiff and but a short distance ahead of ber, — so near that tbe two conversed together. Before tbe accident occurred, however, sbe proceeded so far ahead of plaintiff that tbe conversation ceased. . Before tbe instant of tbe accident Matie turned down tbe alley, and all tbe other girls and boys were ont of plaintiff’s sight. Near tbe corner of Mr. Denning’s place, and where an alley turned off to tbe east, bounded by a fence on tbe north side thereof, plaintiff stepped into a bole and fell. At tbe time thereof her attention was diverted from tbe surface of tbe walk by reason of her endeavoring to see where her companions bad gone to. On that account she did not see tbe bole in tbe walk, though she was perfectly familiar therewith. She did not think of tbe bole at tbe time. She sup-, posed it was a little further ahead. It was daylight when tbe accident occurred. After she fell she got up and fell again. She got up a second time, and taking hold of the fence pulled her foot out of the hole and then turned down the alley, going a few steps, when she fell again and commenced to cry, and called for the girls. One of them came promptly, and later the others came.</p> <p>On tbe fourth occasion plaintiff’s testimony was substantially as follows: While she was on her way to Mr. Denning’s accompanied by Matie Ennis and Sarah Denning, they met some boys and all except plaintiff commenced playing, she declining because her mother had forbidden her to play. Maggie Ennis joined the company before this time. The children ran down the walk on the east side of Cherry street, plaintiff following them. Matie Ennis kept very near to plaintiff for a while, but later ceased to accompany her and turned down the alley on the south side of Mr. Denning’s property. The alley turned off to the right and was bounded on the north by a fence. At the time of the accident all of the children were out of plaintiff’s sight. At about the point where the alley turned off plaintiff caught her foot in a hole in the sidewalk and fell. She got up and took her foot out of the hole and turned down the alley, 'going a short distance, when she fell again and began to cry and call for help. There was no one around at the time. When she called the girls came back to her. She took hold of the fence at the time she pulled her foot out of tbe bole. Sbe went down tbe alley about ten feet before sbe fell. Sbe was sure sbe did not go twenty-seven feet.</p> <p>On the last trial tbe testimony of plaintiff was to tbis effect : As sbe was traveling north on tbe sidewalk on tbe east side of Cberry street, on ber way to Mr. Denning’s, accompanied by Matié Ennis and Sarab Denning, sbe met some boys wbo requested ber and ber companions to play. Sbe declined because ber mother bad forbidden ber to play. Tbe other girls accepted tbe invitation. About that time Maggie Ennis joined tbe company. Plaintiff proceeded north on tbe sidewalk on ber way to Mr. Denning’s, following tbe other children, who were at play. They ran on ahead of ber and before sbe arrived at tbe point where tbe accident occurred all disappeared, tbe girls having turned down an alley at the right on tbe south side of Mr. Denning’s property, tbe alley being bounded on tbe north by a fence. When sbe arrived near tbe alley and while ber attention was diverted from tbe walk by reason of endeavoring to see where ber companions Mad gone, sbe stepped into a bole in tbe walk and fell forward, ber foot coming in contact with tbe plank covering of tbe walk. Sbe took bold of tbe fence and pulled ber foot out of tbe hole and turned down tbe alley. Sbe walked along tbe fence by taking hold thereof. Sbe did not know at that time that tbe bone of ber leg was fractured so sbe could not walk. After proceeding .down tbe alley a short distance sbe took her bands off the fence and immediately fell down. As sbe fell sbe began to cry and called for some one. Two of tbe girls came to ber. She was going down tbe alley, sbe said, after her injury, in order to reach tbe back door of the Denning bouse. Tbe place where sbe said sbe fell was some fifty feet from tbe walk.</p> <p>Tbe nature of tbe injury, as testified to by tbe physician wbo treated it, was as follows: A fraeture of the fibula and an injury of tbe ankle joint, tbe fracture being about an inch and a half above the ankle; a contusion and other troubles about the joint usually characterizing such injuries; a mark across the instep of the foot, which developed soon after the injury into a black and blue appearance over the instep and more or less up the side of the leg and all around the ankle, as usually happens in fractures about the ankle joint; a straining of the ligaments around the ankle; the injury, as a whole, being such as with a person of plaintiff’s age usually is recovered from in about three weeks.</p> <p>Plaintiff was corroborated by three witnesses as follows: John Smith, who resided on the opposite side of the street from where she claimed she first fell, testified that he saw her at first running slowly just outside the sidewalk; that she then stepped upon the sidewalk and after taking two or three steps thereon fell; that he saw her attempting to arise and saw a little boy and girl standing near her feet; that he did not think she was hurt but supposed the children were playing, hence in a minute or two gave his attention to his garden work; that when the girl fell she seemed to drop flat on her face; that he saw the two Ennis girls crossing the street further up toward Denning’s about as plaintiff stepped upon the walk; that he did not see them go back to her; that when he first observed the other girls they were going faster than plaintiff when she received her injury. Mrs. Mary Smith testified that she saw plaintiff fall upon the sidewalk; that she saw her just as she fell; that plaintiff appeared to attempt to get up, then seemed to stoop down again; that witness thought she was playing; that she did not see plaintiff get up; that there were girls with her in plain sight; that they were playing with plaintiff when she fell; that she could not tell how many, but she thought two. Harry Kent, who was about ten years old at the time of the accident, testified that he saw plaintiff fall on the sidewalk; that he was back of the Barron house at a point about 100 feet north and east of the place of the accident; that he was looking around the comer of the bouse at a sharp angle. The boy’s line of vision was interrupted by a picket fence and some evergreen trees or bushes.</p> <p>After the case in chief closed, it was opened and plaintiff was permitted to explain anew the circumstances of how the injury occurred, which she did, saying:</p> <p>“I was going down the street, walking along watching the girls ahead. I caught my foot and fell; caught my foot in the hole in the sidewalk. I knew there was a hole in the sidewalk, but did not know it was just at that place or just where it was because I never stopped. My attention was directed to Maggie and Matie 'ahead. I was watching them at the time. The two girls were turning into the alley. I was watching them to see where they went.”</p> <p>There was evidence by a medical witness to the effect that the injury which plaintiff received was such as to cause instant pain and inability for her to use the injured member effectively in walking; also evidence that from where she fell by the fence, a distance of about fifty feet from the sidewalk, she was carried into the Denning house.</p> <p>A motion was made for a nonsuit and denied. On the part of the defendant there was evidence given by the three girls that were playing as stated by plaintiff, to the effect that she joined in the play and that she received her injury by falling from the fence at the point where she said she last fell, and that she was injured by such fall. That she did not' fall upon the sidewalk. They all admitted that they stated, soon after the accident, that plaintiff fell upon the sidewalk. They explained that by saying that they told a falsehood at plaintiff’s request because she did not want her mother to know that she was playing when the accident occurred.</p> <p>In denying the motion to set aside the verdict and grant a new trial the trial judge remarked that he was convinced that plaintiff had not established by a preponderance of the evidence that she was entitled to recover; that the weight of the testimony was against her claim; yet he was constrained to deny the motion because four juries had found in her favor and the verdict in each instance had been approved by the learned judge who presided at the trial.</p>

<p>Appeal from a judgment of the circuit court for Bock county: 33. F. DuNwiddie, Circuit Judge.</p> <p>An action to quiet title, brought by the plaintiffs as children and heirs at law of Mary Hatch, deceased. The complaint bases their title upon a warranty deed from Henry Stonall to Mary Hatch, dated June 10, 1863, and continuous adverse possession thereof by Mary Hatch up to the time of her death, in 1887, and thereafter by her husband in the right of curtesy, and these plaintiffs as heirs at law, under an order of the county court settling their heirship. It is asserted that the defendants, as heirs at law of one Frederick A. Munden, make some claim to the land. It appears that said Frederick A. Munden, who was the owner of the land in question, died in February, 1852; that John W. Boyd and Seymour N. Hatch, the father of these plaintiffs, were at once appointed administrators of his estate, and that in 1853, under order of the county court, for payment of debts, they sold the land in question, which constituted the home farm of said Munden, to Henry Stonall, executing to him an administrators’ deed purporting to convey the entire title to the land; that shortly before such, conveyance, the two administrators obtained from the widow of said Munden an ordinary quitclaim deed of all her rights, and especially her rights of dower, in and to said land, running to them by name, but not as administrators; that after the sale they paid to her, out of the proceeds, $50, and received a receipt acknowledging the same to have been paid for her relinquishment of dower rights. Stonall, without any intermediate conveyances, made the deed of 1863 to Mary Hatch, -wife of Seymour N. Hatch, for the expressed consideration of $2,445.</p> <p>The answer was, first, a general denial of plaintiffs’ rights in the land, and two counterclaims, the first alleging that the conveyances to Stonall and by him to Mrs. Hatch were made by the administrators fraudulently and for the'purpose of gaining title to Seymour N. Hatch; that said administrators took possession of said real estate immediately after the death of said Frederick A. Munden, and that no change thereof had taken place, but they had continued to hold it up to the time of the death of said Hatch, in August, 1899, and defendants, without laches, had remained in ignorance of said fraud until the commencement of the action; also, as a second counterclaim, that said administrators purchased, with moneys of the estate, the dower right of the widow of Frederick A. Mun-den, and enjoyed the same, receiving rents and profits, up to the time of her death in 1893. They prayed adjudication of title in fee simple to them, for possession, and for $20,000 damages for the unlawful withholding thereof. Upon the trial they attempted to amend by adding allegations and prayer for an accounting of these plaintiffs, as heirs at law of Seymour N. Hatch, for the value of the use and occupation by him. The reply set up the various statutes of limitation and adverse possession in plaintiffs’ favor, and denied all allegations of fraud and all interest in the premises by Seymour N. Hatch.</p> <p>The court found as facts substantially in'accordance with tlie position of the plaintiffs, namely, tlie receipt of the deed in 1863 by Mary Hatch, and adverse possession by her thereafter up to the time of her death in 1887, and adverse possession by her heirs under like color of title up to the time of the commencement of the action in 1901; also the delivery and recording of the administrators’ deed to Henry Stonall in August, 1853, and its confirmation by the county court, adverse possession by him thereafter, and that neither of the administrators was directly or indirectly interested therein; that the transaction with the widow of Frederick A. Munden was purely and simply a relinquishment of her dower right, and that the sale to Stonall was understood and intended by all parties to be free from such dower right; that while some part of the premises in question might have been claimed by Munden as homestead, the ninety-four acres which would have included said homestead were incumbered by mortgage amounting to $389, which exceeded its value, after subtracting the wife’s dower, and that an unascertained portion of the debts for which sale was made existed prior to the homestead exemption law of February 9, 1850; that the administrators had fully accounted for all sums coming to their hands from said real estate, including proceeds of such sale to Stonall ($783) ; that Stonall, immediately following his deed, entered into possession of the premises and exercised absolute control over them up to the time of the conveyance in 1863 to Mary Hatch; that the youngest of the children of Frederick A. Munden reached her majority in 1873;-that for forty-eight years prior to the commencement of this action the premises in question had been openly, notoriously, and adversely occupied by Henry Stonall, Mary Hatch, and her heirs, and that no action had been brought by any of the heirs -of Munden to question the same. Whereupon the court rendered judgment in accordance with the prayer of the complaint, quieting plaintiffs’ title to the entire premises, from which judgment the defendants appeal.</p>

<p>Appeal from an order of the circuit court for Ozaukee-county: Jambs J. Dick, Circuit Judge.</p> <p>This is an action in equity to enforce an alleged lien upon certain real property. The complaint alleges that the plaintiff is the duly appointed and qualified administrator of the estate of one Ellen Landers (born O’Brien), who died July 11, 1880, intestate, leaving issue, and that letters of administration were duly issued to him, as such administrator, June 21, 1902, and that on the same day he was duly authorized by order of the proper county court to bring this action; that said Ellen Landers was a daughter of one Thomas O’Brien, who died December 12, 1876, having previously made his will, which was duly admitted to probate by the proper county court Eebruary 5, 1877, the terms thereof being as follows:</p> <p>“Eirst. After the payment of my just debts and funeral expenses, I give, devise and bequeath to my daughter Allie Tracy, wife of John M. Tracy, the sum of four hundred dollars.</p> <p>“Second. I give, devise and bequeath to my daughter Mary O’Brien, the sum of six hundred dollars.</p> <p>“Third. I give, devise and bequeath to my daughter Ellen O’Brien, the sum of five hundred dollars.</p> <p>“Fourth. I give, devise and bequeath to my son, James O'Brien, all my real and personal estate, the real estate lying in section 33, town 10 N. of range 21 and being about 83 acres, subject, however, to the payments mentioned in paragraphs first, second and third, and also subject to the full share due to my wife Ellen O’Brien, for her use during her natural lifetime. The support of my beloved wife, Ellen O’Brien, during her lifetime and the three payments mentioned above of fifteen hundred dollars shall be a lien on the real and personal estate hereby bequeathed to my son James O'Brien.</p> <p>“Fourthly. I hereby nominate and appoint my wife Ellen O’Brien the executrix of this my last will and testament, and do hereby revoke any former will by me made, and I hereby authorize and empower her, to compound, compromise and settle any claim or demand which may be against or in favor of my said estate.”</p> <p>The complaint then alleges that the legacy of $500 given by the terms of said will to Ellen O’Brien, the plaintiff’s intestate, has never been paid, but that the same is a valid lien on said land; that ever since the death of said Thomas O’Brien the defendant James O’Brien has been in possession of the lands named in said will, and has held and claimed the same by virtue of the terms of said will. Judgment is demanded that said legacy of $500, with interest, be declared a lien on the said devised lands, and that the same be sold to satisfy said lien and costs.</p> <p>The defendants James O’Brien and Hannah O’Brien demurred to this complaint on the ground that the action was barred by the provisions of certain sections of the statute of limitations, to wit, subd. 4, sec. 4221, subd. 3, sec. 4222, and secs. 4234, 4251, R. S. 1818. Said demurrer was overruled by the circuit court, and the defendants James O'Brien and Ha-rmah O’Brien appeal.</p>

The petition malees to appear that in a suit upon two promissory notes of $5,000 each, brought by Brown & Riley against the applicant, a special verdict was rendered in the superior court of Milwaukee county, finding that the notes were executed and delivered as security merely for the payment by the defendant to the plaintiffs of whatever sum he might realize upon his' one-sixth interest in a certain purchase of lands, up to the amount of the notes.

<p>Appeal from a judgment of tbe circuit court for Rock •county: B. E. DuNwiddie, Circuit Judge.</p> <p>Tbis is an action to foreclose a mortgage alleged to bave been executed by the defendants William and Rosa B. -Jones February 17, 1896, to secure a note executed by William Jones of the same date. .Mrs. Jones separately answered to the effect that she was the wife of William Jones; that they were living upon the mortgaged premises as their homestead; that she had no interest therein except the inchoate right of dower and homestead; and she denies that she ever acknowledged the execution of the mortgage, or signed the same in the presence of witnesses, or delivered the same as a mortgage or at all, or that she ever had any knowledge of the execution thereof until the commencement of this action. She alleges that about the time of the date of the mortgage she signed a blank form of mortgage at the request of her husband, and relying upon his false and fraudulent representations ; that the payee of the note and mortgage, known as the “Citizens Bank of Clinton,” had no existence at the time of ■any kind or for any purpose whatever; that its charter expired in 1887, but that it continued to do business in tbe same name without any charter down to April 1, 189S, when it was reincorporated. The separate answer of the defendant William Jones raises substantially the same questions.</p> <p>At the close of the trial the court found as matters of fact, in effect, that July Í5, 1882, four persons therein named and ten others organized the Citizens Bank of Clinton with a capital stock of $25,000, being 250 shares of $100 each, and obtained a certificate of such incorporation pursuant to subsec. 19, sec. 2024, ch. 94, of the Revised Statutes of this state; that it was specified therein that such association would commence July 15, 1882, and terminate July 15, 1887; that such certificate was duly filed for record and duly recorded in the register’s office July 18, 1882; that said association at once began a banking business at Clinton, and continued the same to April 1, 1898; that all the assets and stock of the association, including the note and mortgage in question, were owned by Archibald Woodard, A. Woodard, Jr., George L. Woodard, K. B. Duxstad, and O. R. Tiller-son’s estate and Chris tee Tillerson, administratrix, April 1, 1S98; that on that day they organized the plaintiff corporation, and obtained a certificate of incorporation for the purpose of doing business as a bank under the statutes of this state, with a capital stock of $25,000, being 250 shares of $100 each, specifying the name, residence, and share of each stockholder, and specified therein that such corporation should commence April 1, 1898, and terminate April 1, 1908; that the certificate was duly filed for record and recorded April 14, 1898, in the register’s office; that the assets of the old association belonging to the persons named, including the note and mortgage in question, were in the bank building where the old association had so carried on its business at Clinton, and in the possession and under the control of the persons named; that upon the incorporation of the plaintiff, and with the knowledge and consent of the incor-porators, the plaintiff took possession of the assets of the old association, including the note and mortgage, and took np and continned the hanking business at the same place and under the same name, and used the same books, seal, sign, and offices as the old association, without taking any written transfer from the old association, and the plaintiff has continued such business ever since, and brings this action as plaintiff; that the note and mortgage passed into the possession and ownership of the plaintiff April 1, 1898, and now belongs to the plaintiff, and did at the time of the commencement of this action; that the appellant William Jones was and is an attorney at law, and was a stockholder and cashier of the old association and the aggregation known as the Citizens Bank of Clinton from 1886 to December 1, 1896, and during that time had the main charge and management of the business affairs of the association; that December 31, 1891, he purchased the mortgaged premises in question for $2,633.70, of which sum he borrowed from the association $1,961.78; that in 1892 he was married to the defendant Rosa B.j that June 30, 1894, his indebtedness to the association reached the sum of $4,409.37; that he then gave a note to the association for $3,100, payable in one year, no part of which has ever been paid, except by renewal notes; that he and his wife continued to reside upon the premises as their homestead; that February 17, 1896, William Jones executed the .note in suit for $2,500, and indorsed the same on the back as “Citizens Bank of Clinton, Wisconsin, by William Jones, Cashier;” that at the same time he and his wife, Rosa B. Jones, “executed the mortgage described in said complaint; that said mortgage, after its execution” by them, ''‘was duly acknowledged by them, and such acknowledgment duly certified to, and their' signatures thereto duly witnessed, so as to entitle said mortgage to record, and the same was recorded as set forth in said complaint,” and was duly delivered ; that there is no warrant for “finding that the said Rosa B. J ones was fraudulently induced to execute said mortgage, or that she did not know that she was executing a mortgage on said homestead;” that the mortgaged premises are insufficient security; that William Jones is insolvent; that A. Woodard is personally responsible for any deficiency by reason of his guaranties of the payment of the note and mortgage ; that there is due the plaintiff on the note and mortgage $2,500, with interest from February 1Y, 1896, at six per cent, per annum.</p> <p>As conclusions of law the court found, in effect, that the evidence is insufficient to sustain any of the defenses pleaded in the answer of either defendant; that the Citizens Bank of Clinton, organized July 15, 1882, was, as to the appellants, a de fado corporation from and after July 15, 188Y; that they are estopped from questioning the de facto existence of the association; that the plaintiff is entitled to judgment for the foreclosure of the mortgage and the sale of the premises described for the payment of the amount due and unpaid on the note and mortgage; and ordered judgment accordingly. From the judgment so entered the defendants William and "Rosa B. Jones appeal.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: James J. Dice, Circuit Judge.</p> <p>Suit upon two notes Reid by William Butler, plaintiffs testator, in bis lifetime — one dated September 5, 1895, for $290, due in one year, witb five per cent, interest; tbe other dated April 13, 1897, for $1,465, due in three years, with five per cent, interest. William Butler died February 25, 1900. The defense consisted, first, of an allegation that these moneys were an advancement to the defendant, a son of the testator; secondly, that on October 13, 1898,.in consideration of a promise on the part of the defendant to pay interest until the death of William Butler, he executed a writing in the words following:</p> <p>“Lisbon, Wis., Oct. 13, 1898. .</p> <p>■ “This is to certify that the notes held by me against A. L. Butter shall be null and void after my death and noncollectible.”</p> <p>A special verdict was taken, wherein the jury found that the testator executed and delivered to the defendant the above paper writing, as claimed by the defendant; second, that he so executed and delivered it with knowledge of its terms and conditions; whereupon judgment was entered for the plaintiff for the unpaid interest up to the death of the testator, for which judgment had been tendered, and in favor of the defendant for costs subsequent to such tender; from which judgment the plaintiff appeals.</p>

<p> Appeal from judgment: Review of orders: Exceptions: Discretion: Continuance: Terms: Attorneys: Substitution: Allowance of counsel fees from estate of decedent. </p> <p>1. An order granting a continuance over the term on condition of payment of a gross sum in lieu of costs, is not reviewable on an appeal from the judgment unless exception to the order was filed as prescribed by sec. 2872, Stats. 1898.</p> <p>2. Such an order, being discretionary, will not be disturbed on appeal unless an abuse of discretion is shown.</p> <p>3. Under Circuit Court Rule V, sec. 2, the circuit court was not required to consider an application for change of venue made by an attorney who was not the attorney of record, where consent to Jbis substitution in place of the attorneys of record had been signed by the latter but not by the party herself.</p> <p>4. An order denying a motion to set aside and vacate a judgment is not reviewable on an appeal from the judgment.</p> <p>•5. Upon an appeal to the circuit court from a judgment of the county court making final distribution of the estate of a decedent, the allowance of counsel fees beyond the taxable costs is unauthorized and erroneous.</p>

<p>Appeal from an order of the circuit court for Ashland •county: James O’Neill, Judge.</p> <p>Appeal by defendants from order sustaining general demurrers to three counterclaims, each based on a separate logging contract^ dated, respectively, May 2, 1898, Eebruary 6, 1899, and December 1, 1899. All three contracts were for logging operations by the defendants upon lands of the plaintiff, to be carried on by means of logging railroads extending from the tracks of the Washburn, Bayfield & Iron River Railway Company, and in all of which the defendants agreed to construct the roadbeds for any such spurs or Jogging railroads as should be needed for the prosecution of the work. The contracts of May 2, 1898, and Eebruary 6, 1899, required the defendants merely to cut and haul the timber and load it on the cars, while the contract of December 1, 1899, required them, in addition, to deliver the loaded cars at Port Wing Junction, a station on the main line of said railroad. By each contract it was provided, substantially, that in case of delay by the railroad company caused by strikes, or without fault of either party, the time for the performance of the contract should be thereupon extended, and the parties should not be responsible to each other for any damages resulting therefrom. All of the contracts required the defendants to properly load the logs, and reload any which fell off the cars within one mile from the place of loading, and also provided that the defendants should he responsible for damages resulting from any injury to ears, engines, or equipment of the railroad caused 'by the negligence of the defendants. Upon these contracts, it was claimed by the defendants to have been the duty of the plaintiff to furnish the cars to- enable the loading of the lumber at the rates specified in the several contracts; that it had, with full knowledge of the injurious effect upon the defendants, carelessly and negligently failed and neglected to furnish such cars in adequate quantity, with apt allegations of the extent of the deficiency in such supply, and damage thereby caused to the defendants by reason of the facts and conditions within the knowledge and contemplation of the plaintiff. The prayers of the counterclaims were for the recovery of such damages.</p>

<p>Appeal from an order and judgment of the circuit court for Dodge county: James J. Dick, Circuit Judge.</p> <p>This is an action in the nature of quo warranto brought for the purpose of ousting the defendants from certain village offices, and to obtain judgment declaring the attempted incorporation of the village of Neosho, Dodge county, to he invalid. The complaint alleges that the relators are residents and taxpayers of certain territory in the town of Rubicon, Dodge county, which was attempted to be incorporated into a village named the village of Neosho, and that the defendants claimed to be the corporate officers of said village, and are usurping and exercising the powers of village officers in the matter of the collection of taxes, the management of highways, and other proper village matters. The complaint then states further in detail the proceedings taken to incorporate said village of Neosho under secs. 854-869, Stats. 1898, and charges that, at the election held to determine the question of incorporation under secs. 862-865, the canvassers certified that eighty-nine votes were cast, of which forty-five were in the affirmative, and forty-four in the negative, whereas in fact only forty-two legal ballots were cast in the affirmative at said election, and forty-four in the negative; that, prior to the commencement of this action, application was duly made to the attorney general of the state to commence quo warranto próceedings against the defendants, but that he refused so to do. The complaint demands judgment that the defendants be ousted from their pretended offices, and that said pretended village be declared an unlawful usurpation of village government.</p> <p>To this complaint the defendants demurred on the following grounds: (1) That the plaintiffs have not legal capacity to sue because the action should be brought' in the name of the state on the relation of the attorney general. (2) That the plaintiffs have not legal capacity to sue because said action should be brought in the name of the state either on the relation of the attorney general or of the town of Rubicon. (3) That there is a defect of parties plaintiff because the attorney general of the state is not joined. (4) That there is a defect of parties plaintiff'because the town of Rubicon is not joined. (5) That there is a defect of parties defendant because the village of Neosho is not joined. (6) That the complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiffs. (7) The defendants further demurred to a certain portion of the complaint because the court has no jurisdiction of the subject-matter thereof, and it does not state facts sufficient to constitute a cause of action.</p> <p>The circuit court sustained the demurrer as to the 1st, 3d, 5th, aud 6th causes alleged, aud overruled the demurrer as ■to the 2d, 4th, aud 7th causes, and entered judgment dismissing the complaint. From those parts of the order which sustained the demurrer, and from the judgment of dismissal, the relators appeal.</p>

<p> Administrators: Final account: Appeal: Amendment: Compensation, for extraordinary services: Discretion. </p> <p>1. Upon appeal from a partial disallowance by the county court of an administrator’s account the circuit court, under sec. 4034, Stats.' 1898, may permit amendments within the scope of the account presented to the county court; but it would be an abuse of discretion to allow entirely new items to be presented by amendment.</p> <p>2. Legal services, and all other services involving special skill or learning, are “extraordinary services” for which such compensation as the court may judge reasonable may be allowed to an administrator, under sec. 3929, Stats. 1898.</p> <p>3. In allowing compensation for extraordinary services of an executor or administrator, under sec. 3929, Stats. 1898, the claim therefor should be carefully scrutinized and all matters ex-eluded therefrom which are not clearly within the scope of the statute.</p> <p>4. The matters for which extra compensation is claimed under sec. 3929, Stats, 1898, should ordinarily be required to he presented in such definite form that the questions involved can be passed upon in detail.</p> <p>5. An allowance of $300 to an administrator for extraordinary services, including all the legal services of settling the estate, is held in this case not to have been an abuse of discretion, although the claim therefor was presented in a somewhat general and indefinite form.</p>

Dick, Circuit Judge. Action commenced in justice’s court to recover for services and expenses as traveling salesman, upon an express contract, as alleged in the complaint, to pay the plaintiff such sum as his services were reasonably worth, such sum as the defendant paid otlier salesmen, and such, sum as other corporations paid their salesmen, together with expenses. The answer was merely a £ eneral denial.

<p> Promissory notes: Payment: Agency: Ratification. </p> <p>The maker of six several notes secured hy mortgage paid the first of them to one R., a hanker, who had been present when the mortgage was executed and who delivered up said note to him marked “Paid.” Afterwards he paid to R. an instalment of interest on the remaining notes. After the maker’s death his widow paid the second and third notes, and interest on the others, to R., taking receipts; but the notes so paid were not surrendered to her. The owner of the notes — to whom they had been indorsed on the day they were executed and who presumably had knowledge of the payments to R. — died about a year after the payment last mentioned. The fourth and fifth notes, with interest thereon and on the sixth, were paid by the widow of the maker to the widow of said indorsee, who had succeeded to their ownership, and who gave receipts consistent only with the theory that the payments to R., of which she had knowledge, were valid. Neither the said indorsee nor his widow ever made any claim upon the notes paid to R., but both treated and recognized them as paid. 'Held, that the payments to R. had been ratified by both the indorsee and his widow, and that one claiming to own the second and third notes by assignment from the widow’s executor, made after the maturity of said notes, was bound by such ratification.</p>

<p> Appeal: Inconsistent findings: Hiparían owners: Restoring level of lahe by dam: Nuisances: Abatement. </p> <p>1. Where there is a finding inconsistent with the judgment in an action, and other findings hy themselves sufficient to warrant such judgment, it should he reversed unless found to he clearly right upon the evidence.</p> <p>2. It being settled thqt a riparian proprietor as a matter of right may dam up the outlet of a lake so as to raise the level of the water therein to where it was at a former time before disturbed by unlawful interference by drainage operations; a finding that a dam constructed by such proprietor for that purpose will cause the water of the lake to rise higher than before such interference, and one that the level of the lake cannot be raised to its former condition without obstructing the outlet of the lake substantially as by the construction of such dam, are manifestly inconsistent, and no judgment involving the legality of such obstruction can be based thereon.</p> <p>3. When a person has a legal or equitable right to do a particular thing, requiring in the enjoyment thereof the exercise of judgment, and he proceeds with due care in that regard, and the conditions are such that a mistake of judgment on his part might create an actionable private nuisance, but the indications are clear that such mistake will probably be promptly remedied by him upon the same developing, and private parties, in mere anticipation that such person’s operations may create such a nuisance injurious to them, prevent him from a fair exercise of his judgment in the matter by obstructing his proceeding at all, they are wrongdoers and may be dealt with at law or in. equity as the case may require for the efficient protection of such right.</p> <p>4. A person, in mere anticipation that an actionable private nuisance injurious to him may result from the operations of another upon his own premises or upon premises where he may lawfully be for the purposes of such operations, cannot maintain an action at law or in equity against such person in respect thereto.</p> <p>5. Where there is no right of action to restrain or remove or to obtain damages in respect to a nuisance created by another, there is no right to prevent, restrain or remove such nuisance without judicial proceedings.</p> <p>[Syllabus by Mabshaul, X]</p>

<p> Railroads: Killing of cattle on track: Sufficiency of fence: Issues: Construction of statutes: Proximate cause. </p> <p>1. In an action to recover for cattle killed on a railway track, based solely on an alleged negligent failure to keep tke fence in repair, defendant cannot object tkat the decision was based on insufficiency of the fence 'as originally built, where at the trial its attorney did not object to a decision on that question but moved for direction of a verdict on the ground, among others, that it conclusively appeared that a sufficient fence had been built.</p> <p>2. When, in a penal statute, general language is used as to the means to be adopted" to prevent the mischief dealt with, leaving particulars as to performance more or less to the discretion of those whose conduct is the subject of the regulation, a provision that performance in a particular way shall be deemed suf-flcient for that purpose does not imply that any other method sufficient therefor in fact shall not be deemed likewise sufficient in law.</p> <p>3. In see. 1810, Stats. 1898, the declaration that a barbed wire fence constructed in a particular way shall be deemed a good and sufficient fence does not mean that no other barbed wire fence shall be deemed sufficient. A fence constructed according to the statutory specifications is sufficient as a matter of law. The sufficiency of a fence constructed otherwise is a question of fact.</p> <p>4. Although the railway fence erected at a certain place was insufficient, such failure of the company to perform its statutory duty does not render it absolutely liable for injuries to do- . mestic animals getting upon its right of way at that point, unless there was a causal connection between such failure and the entry of the animals on the right of way.</p> <p>5. If the entry of animals upon the right of way was not referable to the insufficiency of the fence as erected nor to negligence in the matter of keeping it in repair, but to the acts of trespassers in breaking down the fence, the railway company is not liable under sec. 1810, Stats. 1898, for injuries to such animals.</p>

<p> Fire insurance: Change of title avoiding policy: Waiver: Estoppel: Right of mortgagee. </p> <p>1. Property of a partnership was insured under a Wisconsin standard fire policy, providing that it should be void in case of change in the title to the property, unless otherwise provided by agreement indorsed or added. After the issuance of the policy the agent was informed that two of the partners had contracted to buy out the third. He told them that when the purchase was completed it would be necessary to have the third' partner’s interest in the policy assigned and the assent of the company indorsed on the policy, and that he would make the proper indorsements. He repeated this statement afterwards, before the transfer was made, but the partners, who were not familiar with business or the English language, understood him to mean that he would arrange the insurance all right upon mere notification of the transfer. Some time after the transfer was made one of the partners mentioned casually to the agent that they had completed buying out the third partner. No assignment of any interest in the policy was ever made and no written consent ever given by the company. Held, that there had been no waiver of the provision avoiding the policy.</p> <p>2. The provision in the Wisconsin standard policy avoiding the policy in case of a change in the title is self-executing, and no duty is imposed upon the insurer upon his being merely informed of such a change. Mere silence of the insurer in such-a case will not operate as a waiver of the forfeiture or an es-toppel to assert it.</p> <p>3. Under a policy issued to the owner of property and providing, with respect to a mortgagee, merely that the loss, if any, shall be payable to the latter as his interest may appear, the insurer owes no other or different duty to the mortgagee than by its contract it owes to the insured. The mortgagee can recover solely in the right of the insured, and only when the latter can.</p>

Dick, Circuit Judge. Action to recover damages alleged to have been caused by negligence of defendant in allowing fire to escape from one of its locomotive engines which ignited plaintiffs property, destroying the same. There was a motion on behalf of defendant for a change of the place of trial, and this appeal is from the order denying the same.

P apish, Circuit Judge. This is a taxpayer’s action in equity to recover, on bebalf of Bayfield county, certain moneys alleged to bave been unlawfully drawn from the county treasury of said county. The action was brought against William, Knight, John Eroseth, and the county of Bayfield, as defendants.

Parish, Circuit Judge. Action to foreclose six tax sale certificates on lots 11 and 12, block 1, city of Ashland. Tbe lots were separately sold for delinquent taxes for tbe years 1895, 1896, and 1897, were purchased at the tax sales by tbe county, and certificates were issued accordingly, there being a certificate for each lot upon each sale. Subsequently tbe six certificates were sold pursuant to a resolution of tbe county board, for tbe amount expressed upon their face.

<p>Appeal from a judgment of the circuit court for Ashland county: Johh K. PARISH, Circuit Judge.</p> <p>This is an action to recover the value of a large quantity of posts and poles destroyed by fire alleged to have been caused by the negligence of the defendant. The action was tried before a jury, and the facts were not seriously in dispute. It appeared by the evidence that on July 19, 1901, the plaintiffs owned a large quantity of posts and poles, which were piled upon land immediately north of the defendant’s right of way tracks in tbe village of Cedar, Iron .county, Wisconsin; that at this point tbe defendant’s railroad runs nearly east and west, and three tracks are maintained, one of tbe tracks being a main track, tbe nest one to tbe north being a passing track, and tbe next one north of that being tbe loading track, immediately north of which tbe plaintiffs’ posts and poles were piled. It further appears that the Montreal River Lumber Company, a private corporation, also owned and operated a private logging track, which was connected with the defendant’s passing track at a point just west of the plaintiffs’ piles of posts and poles, and that said private logging track extended north from the point of connection several miles into the woods; that said Montreal River Lumber Company operated upon this track a small locomotive, which it owned, and which was used to bring its logs loaded on cars over said private logging track, and to place them upon the defendant’s loading track for transportation by the defendant, and also to take empty cars from the defendant’s track into the woods to be loaded; that this was done by permission of the defendant and for the purpose of delivering said logs to the defendant for shipment over its railroad, and that defendant had no other interest in the operation of the lumber company’s engine; that on July 19, 1901, the lumber company’s engine was moved by its employees upon the defendant’s loading track, and was coupled to several empty logging cars standing thereon, and took them away over said private track into the woods for loading; that immediately after this operation a fire started among the plaintiffs’ posts and poles, and a large part of them were destroyed; that the spark arrester upon the lumber company’s engine was so defective that fire could easily escape from it; that the defendant had no notice of this fact; and that all of the defendant’s engines which were used at this station at the time in question were in p>roper condition.</p> <p>A motion to direct a verdict for the defendant was denied, and a special verdict was rendered by the jury, by which it was found (1) that the plaintiffs owned the property in question; (2) that said property was destroyed by fire which escaped from the engine of the Montreal River Lumber Company while it was being operated upon the track of the defendant with its consent; (3) that said fire escaped by reason of a defective spark arrester upon said engine; (4) that said Montreal River Lumber Company was guilty of want of ordinary care in permitting said spark arrester to be in such defective condition; (5) that said want of ordinary care was the proximate cause of said fire; (6) that the value of the property destroyed was $5,624.49. Motions for judgment upon the verdict for the defendant and for a new trial were successively overruled, and judgment was rendered for the plaintiffs for the value of the property destroyed, with costs, and the defendant appeals.</p> <p>cited 2 Elliott, Railroads, § 477; Heron v. St. P., M. & M. B. Co. 68 Minn. 550; Railroad Co. v. Barron, 5 Wall. 94; Chicago, St. P. & F. du L. B. Co. v. McCarthy, 20 Ill. 385; Ohio & M. B. Co. v. Dunbar, 20 Ill. 623; Chicago & B. I. B. Co. v. Whipple, 22 Ill. 105; Nelson v. V. & C. B. Co. 26 Yt. 717; McFlroy v. N. & L. B. Co. 4 Cush. 400; Aycoch v. B. & A. A. B. Co. 89 N. C. 321; Macon & A. B. Co. v. Mayes, 15 Am. Rep. 628; Abbott v. J., G. & K. H. B. Co. 36 Am. Rep. 572; Delaware, L. & W. B. Co. v. Salmon, 23 Am. Rep. 214; Harden v. N. C. B. Co. 85 Am. St. Rep. 747; McCoy v. K. C., St. J. & C. B. B. Co. 36 Mo. App. 445; 2 Wood, Railroads, sec. 325; Toledo, P. & W. B. Co. v. Bumbold, 40 Ill. 143; Stetler v. C. & N. W. B. Co. 46 Wis. 497-502.</p>

Plaintiff in this action sought compensation for a personal injury alleged to have been produced by an insufficient sidewalk in defendant city.

In the year 1901 the city of Ashland assessed to “Knight & Vilas, of East End Mill, 9,350,000 jieet of lumber, $112,200.” On August 27th Mr. Knight, as agent of Mr. Vilas, appeared before the board of review, and made an un-sworn statement to the effect that all lumber which they or either of them had on those docks was sold prior to the 1st of May by certain written contracts, which he offered for the inspection of the board.

<p> Bills and, notes: Accommodation indorsement Toy corporation: Powers of officers: Notice: Consideration: Court and jury. </p> <p>1. An officer of a corporation, in the absence of special authority, has no power to execute accommodation paper in the corporate name; and a person receiving such paper, either knowing or charged with knowledge of the fact that it is accommodation paper, cannot hold the corporation.</p> <p>2. When a person receives a note for the debt of another, which bears the indorsement of a third person or corporation not in the chain of title, he is charged with notice that the indorsement is an accommodation indorsement.</p> <p>2. Plaintiffs shipped lumber to the firm of W. & H., to be sold on commission. The defendant corporation, afterwards formed with H. as secretary and treasurer, rented the yard of W. & H. and sold lumber therefrom. Thereafter W. & H. sent to plaintiffs a note executed by another firm to the order of W. & H. and indorsed by W. & H., and also indorsed in the name of the defendant corporation by H. Plaintiffs credited the note to W. & H. on their commission account. Defendant’s vice president testified that it received no consideration for such indorsement and was never indebted to W. & H. or to the plaintiffs; hut H.,. defendant’s secretary and treasurer, testified that the note was given and indorsed with the consent of the vice president and. that it in fact represented lumber of the plaintiffs bought by the defendant corporation from W. & H. Held,, that it was a question for the jury whether the defendant’s indorsement was without consideration and made only for the accommodation, of W. & H.</p>

<p> Appeal: Orders: Record: Review. </p> <p>On appeal from an order, the record as transmitted contained a number of affidavits presumably in opposition to the motion, but the order itself failed to specify any of the papers on which the motion was heard, and the clerk’s certificate stated merely that the papers transmitted were “all the original papers on file.” Reid, that the order could not be reviewed.</p>

Paeish, Circuit Judge. This is a claim against tbe estate of Hanna J. Newland. Tbe action was tried before the court, a jury being waived. Tbe facts were not in dispute.

<p>Taxation: Assessment: Board of review: Increasing valuation: Notice: Jurisdiction: Certiorari: Bight tc writ: Presumption of injustice: Evidence: Pleading: Reduction of assessments of third persons.</p> <p>1. Where a hoard of review commits jurisdictional error in increasing the valuation of property, injustice to the owner is presumed, in the absence of any showing to the contrary in the record of the proceedings of the board; and upon a proceeding by certiorari to challenge the assessment, if there is no affirmative showing that substantial justice has been done, it is error to quash the writ upon the ground that the petitioner has not shown injustice.</p> <p>2. A board of review has no jurisdiction to change the assessor’s valuation except upon evidence reasonably warranting the change.</p> <p>3. The assessor placed on the roll as property of tho relator 10,000,000 feet of saw logs, log scale, valued at $5 per thousand. Relator’s bookkeeper testified in detail before the board of review that there were on hand on May 1st, 10,244,167 feet of saw logs, log scale, which would make about 13,000,000 feet, mill run, of manufactured products. Other witnesses testified that the amount so on hand would not exceed 10,500,000 feet, log scale. On such evidence alone the board increased the assessment to 13,500,000 feet at $5 per thousand. Held, that in so doing the board exceeded its jurisdiction.</p> <p>4. Under sec. 1061, Stats. 1898, notice.to the property owner of an intention to increase his assessment is a condition precedent to the power of the board of review to do so, and .the disregard of that statute is jurisdictional error.</p> <p>5. A sawmill property, including several parcels of land, was assessed as an entirety at $41,275. The only evidence before the board of review was that the buildings and machinery were insured for $35,000, and that the insurance companies required such property to be insured up to its full value. The board increased the valuation $13,050. Held, that in thus acting without evidence the board exceeded its power.</p> <p>6. In a petition for a writ of certiorari to review the action of a board of review in increasing relator’s assessments, it was proper, in order to show that the board acted inequitably, to include a statement that, without evidence justifying it, the board reduced the valuation of property of third persons.</p>

Parish, Circuit Judge. Action upon a negotiable bill'of exchange drawn upon tbe defendant in favor of tbe plaintiff by tbe Lien-Neally Lumber Company for $585, alleged to bave been accepted by tbe defendant. Tbe answer was a general denial.

<p>Criminal law and practice: Counsel to assist district attorney: County judge: Murder: Evidence: Declarations of deceased: Res gestse: Instructions: Verdict: Polling jury: Jurors: Previous expression of opinion: Manslaughter in fourth degree: Cruel and unusual weapon.</p> <p>1. Sees. 2452, 2582, Stats. 1898, do not prohibit the appointment, under the provisions of sec. 750, of a county judge as counsel to assist the district attorney in the prosecution of a person charged with felony.</p> <p>2. On the trial of a person charged with having caused the death of his wife by means of a lighted kerosene lamp which set fire to her clothing, testimony of their son that the deceased said defendant struck her with the lamp, is held to have been admissible, it sufficiently appearing that such .statement was made, if at all, in the immediate presence of defendant.</p> <p>3. A witness who arrived on the scene within a very few moments after the breaking of the lamp, while fire was still smoldering in a curtain and in some clothing, defendant being in an adjoining room with the door open, testified that deceased said to her when she first came in: “See what he has done now! Struck me with a lamp.” Held, that this remark or exclamation was admissible as a part of the res gesta}.</p> <p>4. After stating that the information charged that the defendant, on January 30, 1902, “in this city and county, from premeditated design to effect the death of [deceased] did feloniously kill and murder said” deceased, and that defendant pleads not guilty to the charge, the court charged the jury: “That [the deceased] died at the time and place and under the circumstances mentioned on the 31st day of January last, are facts that are not contested on the part of the defendant.” It was evident from the immediately succeeding clauses of the charge, and the jury must have understood, that the court did not intend to convey the idea that the death was proven to be due to any act of defendant, but was merely referring to the admitted facts that the deceased was severely burned as the result of the breaking of a lamp on the night in question and that she died soon after. Held that, although the charge was unfortunately worded, there was no error.</p> <p>5. To inform the jury, on a trial for murder, of the penalties fixed by statute for the various degrees of murder and manslaughter, is bad practice; but wbetber it would necessarily work a reversal is not determined.</p> <p>6. Upon polling tbe jury, one juror answered that it was his verdict with a provision, and that the agreement was that the jury ask for the clemency of the court on behalf of the prisoner. Upon being asked again whether the verdict was and still is his verdict, he answered unconditionally in the affirmative. Held,, that it was proper to receive the verdict.</p> <p>7. The question, raised upon a motion for a new trial, whether a juror had expressed an opinion before the trial and hence was disqualified, is one of fact for the trial court, and its decision, unless contrary to the weight of the evidence, will not be disturbed by this court.</p> <p>8. The killing of a person by means of a lighted kerosene lamp full of oil cannot he manslaughter in fourth degree as defined in sec. 4362, Stats. 1898, since such lamp must be considered a cruel and unusual weapon.</p> <p>9. Where, upon the evidence of defendant on a trial for murder, the jury might have concluded that the lamp which caused the death of deceased was accidentally struck by defendant’s cane when he was throwing up his hands under the supposition that the deceased, who held the lamp, was about to strike him with it, but that as matter of fact he was not justified in so supposing, . and that hence his act in throwing up his cane was not justifiable or excusable, but was culpably negligent, the question whether defendant was guilty of manslaughter in the fourth degree under see. 4363, Stats. 1898, should have been submitted to the jury.</p>

C. SilvebthoeN, Circuit Judge. Action for malicious prosecution.

0. SilveRthoen, Circuit Judge. Plaintiff and defendant were copartners doing a mercantile business at Minocqua, the copartnership beginning in September, 1891, and continuing until November 9, 1894, at which time it was dissolved by mutual consent, Mr. Laughiin continuing the business.

C. Silvebthobw, Circuit Judge. This is an action of replevin, commenced in the municipal court, to recover one half of a crop of potatoes raised by the defendant on the land of the plaintiff. Issue being joined and trial had, the plaintiff recovered judgment in that court, and the defendant appealed therefrom to the circuit court.

<p> Sales: Breach of implied warranty: Waiver: Receiving goods: Reasonable time for inspection: Notice of rejection. </p> <p>1. The purchaser of goods under an executory contract does not waive a breach of an implied warranty of quality by merely receiving the goods into his possession, but may take a reasonable time thereafter to discover departures from the agreed quality, even as to matters evidenced by external appearances, and to notify the vendor that such goods are not accepted as satisfying the contract.</p> <p>2. If a person sells another property to be delivered, accompanying the sale with a warranty, and when delivery takes place there are defects therein discoverable by a person of ordinary intelligence in the circumstances of the purchaser by the exercise of ordinary care, and such other nevertheless accepts the property, neither objecting thereto then or within a reasonable time thereafter, nor notifying such person that the property will not be considered as in satisfaction of the contract, he thereby waives the defects so discoverable, precluding his thereafter rescinding the contract of sale, counterclaiming for damages when sued for the purchase price, or suing for damages for breach of warranty after paying for the property.</p> <p>3. Ordinary care, as the term is used in the above rule, does not require inspection of the property in the sense of looking specially for defects therein. It requires only that the buyer shall see and take note of imperfections observable by ordinary application of the senses to external appearances.</p> <p>[Syllabus by Marshall, J.]</p>

Appeals from judgments of the circuit 'court for Clark county: James O’Neill, Circuit Judge. Plaintiffs charge that between December 6, 1893, and February 28, 1895, they loaned defendants, at their request, pursuant to an agreement, $12,415.81, and that a payment of $5,000 was made thereon on September 11, 1897, and demand judgment for the balance due them, with interest.

<p>Appeal from a judgment o-f tbe circuit court for Racine county: FbaNic M. Fish, Circuit Judge.</p> <p>Tbis is an appeal from a judgment allowing a claim in favor of tbe respondent, Rale Roberts, against tbe estate of bis mother, ‘Winifred Roberts,' deceased. Tbe claim was allowed in tbe county court, and from that judgment an appeal was taken to tbe circuit court by Cassie R. Lamberton, a sister of tbe claimant, and one of tbe legatees under tbe will of Winifred Roberts. The circuit court found tbe facts to be as follows:</p> <p>“In 1894, on August 15th, testator and claimant made and entered into an agreement whereby, in consideration of tbe assuming by said Rale Roberts of tbe payment of $1,800 of tbe debts of tbe testator, amounting to $5,100 in all, and testator’s release therefrom, testator agreed to procure tbe discharge of all mortgages on 120 acres of land in which she bad a life estate, and of which tbe claimant was tbe owner in remainder; and by which agreement she further agreed that she would pay to said Rale Roberts tbe interest on said sum of $1,800 as long as she lived. That, in keeping with said agreement, plaintiff assumed and agreed to pay and deliver to John Inbusch bis personal note for said sum of $1,800, and, to secure tbe payment of tbe same, plaintiff and testator joined in the execution of a mortgage on said 120 acres, and in a few days thereafter said debts of $5,700 were discharged, and testator released therefrom. That testator died on tbe 14th day of May, 1898, and at tbe time of her death there was tbe sum of $81 accrued interest on said note and mortgage. That at tbe time of tbe death of tbe testator she was in-debtecl to the claimant in the sum of $83.65 for lumber furnished in making necessary repairs and improvements on said lands, which he furnished at her request and as her agent, and that plaintiff is entitled to interest on said amounts from the days of payment up to the day of this judgment or finding.”</p> <p>Upon these findings the court rendered judgment for the claimant for $19484, with costs, and from this judgment Oassie B. Lamberton appeals.</p>

<p>Appeals from a judgment of the circuit court for Racine county: Eeank M. Eisi-i, Circuit Judge.</p> <p>This action was commenced February 17, 1896, for the dissolution of the firm of John S. Hart & Co., and for an accounting by-the managing partner, John S. Hart, of the entire business of the copartnership running from October 22, 1865, to the time of the trial, and for payment of the balance found due.</p> <p>It appears from the record that October 17, 1865, Joshua W. Hart died leaving his widow, the plaintiff, and some small children, and also leaving a last will and testament which he had executed two days prior to his death, and which was admitted to probate a few weeks after his death, in and by which he directed, in effect, that all his just debts should be fully paid out of his personal estate as soon as might be after his decease; that the plaintiff herein should have the use, occupation and enjoyment of all his estate, personal, real and mixed, of every name, nature and description during widowhood — subject to the support, maintenance, and education of his children, as therein provided, and he therein nominated and appointed his widow, the plaintiff in this action, and his brother, the said John S. Hart, as executrix and executor of his last will and testament; that they thereupon qualified as such and took possession of the property of the estate; that such estate at the time of the death of Joshua W. Hart consisted of a certain flouring mill, and also of the warehouse building used in connection therewith, situated on the premises described — which floiiring mill was operated by steam power and was equipped with the necessary machinery for carrying on the flouring business and in which Joshua W. Hart, deceased, had, for several years, carried on the general business of milling and the manufacture of flour, and srrch premises were appraised at $20,000, including the flouring mill and elevator thereon; that he also' had a homestead described, and a dwelling house and barn thereon, appraised at $3,000; that he also had personal property inventoried and appraised at $25,841.58, including $88.43 not collected, and $450 personal property selected by tbe widow pursuant to the statute; that the amount of such personal property, so appraised, included life insurance made payable to the plaintiff, of $4,877.62; that at the time of his death there were claims due from his estate amounting in the aggregate to $25,680.93. October 22, 1865, being five days after the death of Joshua W. ITart, the plaintiff and John S. Hart, both being executors of the will of the said Joshua W. Hart, deceased, as mentioned, entered into written articles of copartnership, wherein and whereby they agreed to conduct the milling, flouring and grinding business at and in the mill, warehouse and appurtenances mentioned, from that day until January 1, 1867, in the firm name of “John S. Hart & Co.” upon the terms following, that is to say, the plaintiff, Cynthia 0. Hart, thereby “puts into said business the use and occupation of the grist and flouring mill . . . with the machinery, fixtures and appurtenances thereto, and with the office furniture, scales, safe and all other movable appliances” then “used in said business and the warehouse and office . . . with the fixtures and appurtenances thereto, and the said John S. Hart puts in his time, labor, skill and attention against the occupation and use of said mill and warehouse, as aforesaid; that said parties agree to pay and stand each one half of all expenses of conducting said business and shall each have and receive one half of the profits and bear and pay one half of the losses of said business;” and in pursuance of such agreement the plaintiff did-put in such use and occupation, and John S. Hart did put in such time, labor, skill and attention. That agreement was, by express written agreement, continued to January 1, 1868, and said partnership business was in effect continued until February 5, 1876, when the milling building and all the machinery therein, together with a large part of the wheat, flour, and stock on hand, belonging to the copartnership, were destroyed by fire, in consequence of which the said business was discontinued.</p> <p>September 14, 1868, the said executors presented their account up to that date, and John S. Hart, as one of them, petitioned the court to be allowed to resign his trust and be discharged therefrom, and upon due hearing thereof their account to that date was approved and allowed as his final account to that date, and he was thereupon, by order of the court, discharged from his trust as such executor, and it was further ordered that the plaintiff remain the sole executrix of the will, and she thereupon gave a new bond in the sum of $8,000. After the destruction of the mill property, February 5, 1876, John S. Hart, for the purpose of collecting the assets of the firm — consisting in part of claims against insurance companies and in part of outstanding book accounts and other choses in action against various customers of the firm, retained possession of the current books of account down to a year prior to the commencement of this action. During that time the plaintiff failed to examine into the state of the account, and the condition of the partnership remained unsettled and was still unsettled. Among other things there was a claim against the Globe Insurance Company for insurance in litigation and undetermined.</p> <p>April 21, 1894, there was a final accounting by the plaintiff as executrix, and after due hearing she was discharged.</p> <p>The issues formed by the complaint and answer were, on December 15, 1897, by the court referred to Charles H. Lee, as referee, to hear, try and determine, and to take and state an account between the partners, of their partnership business, and to report his decision, together with the testimony by him taken, and the account so stated. November 25, 1898, the referee made his report and findings, and in addition to the facts stated, which were either found by him or admitted, he found in effect (6) that the business was on the whole profitable; that during the first two years and before the funds of the estate were wholly withdrawn from the business. the net profits of the firm were upwards of $30,000; that after making proper deductions for tbeir losses by the fire the aggregate net profits of the business during the continuance thereof amounted to $42,030.52; (7) that John S. Hart had kept the books and attended to the entire business; that he made such repairs and improvements upon the mill property as he deemed necessary for the successful prosecution of the business; that he expended for repairs and improvements a large amount of money and paid for the same out of the funds of the firm — rarely consulting the plaintiff — that he caused the mill building and the warehouse and the property therein to be insured and paid the premiums upon such insurance and also the taxes upon all of said property out of the partnership funds, and generally managed and controlled everything pertaining to the business, (9) without being called to account by the plaintiff; (10) that the debts of the copartnership had all been paid in full; (11) that no account of such partnership business had ever been rendered by the managing partner to the plaintiff, and no account or settlement of the business had ever been had between them, but that all matters pertaining to the partnership business appeared'upon the firm books kept by John S. Hart; (12) that out of the profits plaintiff had received $12,552.91 and no more, while John S. Hart had received out of the said profits $29,477.61; that is to say, the plaintiff had received $8,462.35 less than her share upon such accounting, and John S. Hart had received $8,462.35 more than his share upon such accounting; (13) that except $167.04 subsequently received at intervals from small collections, the entire excess was so drawn out by John S. Hart prior to January 1, 1877, and some of it was invested by him in good interest-bearing loans and he had at all times since been receiving whatever interest, income and profits which may have accrued thereon, but that he was not guilty of any intentional wrong, or any fraudulent conduct or intentional concealment; (14) that in keeping the partnership books John S. Hart improperly charged to the account of tbe plaintiff, without her knowledge or consent, numerous items of expense for repairs to buildings, repairs and renewals of machinery, for new and improved machinery installed in the mill to improve the quality of the flour and enable them to compete with other millers, and also for insurance, taxes and other expenditures properly chargeable to the firm; that December 31, 1876, John S. Hart transferred bodily to the debit side of the plaintiff’s capital account several entire accounts appearing upon the books under the heads of “Building,” “Machinery,” and “P'erma-nent Repairs,” and made up of such expense items of the copartnership, together with the entire debit balance of an account kept by the firm with the estate of Joshua W. Hart, thereby making it appear that the plaintiff was indebted to the firm when in fact the firm was largely indebted to her, and the referee also stated the true account between the partners as a part of the report; (15) that the only capital contributed by either partner to' the copartnership was the interest in the mill property contributed by the plaintiff; that by the payment of the insurance on the mill building to the plaintiff — there having been no actual conveyance of her title to the firm — said capital was fully returned to her and so is not included in the' account; (16) that with the exception of the balance of account due from the estate of Joshua W. Hart, the legality of which is doubtful and which may be barred by the statute of limitations, and the claim of the firm against the Globe Insurance Company in litigation, all the assets of the copartnership have been converted into money; that neither of these two items is included in the account, and that any collection of the same, would constitute an additional profit; (17) that the allegations of the complaint are all true, except the charge of fraud and concealment, and the amount due the plaintiff from John S. Hart.</p> <p>And as conclusions of law the referee found, in effect, (1) that the copartnership should bear all such expenses as taxes and insurance upon buildings, repairs of buildings and machinery, and renewals and new machinery, as well as the ordinary daily operating expenses — and this independent of the question whether, in strictness, the plaintiff’s entire life estate was put into the venture, so as to become partnership property, or not; (2) that there was due from John S. Hart to the plaintiff upon a correct statement of the partnership accounts $8,462.35, with interest from November 25, 1898; (3) that the plaintiff was entitled to judgment for the dissolution of the firm and for the recovery of the sum last stated, together with the costs of the action, and that the uncollected accounts and choses in action of the firm should be sold in such' manner as the court should direct and converted into money, or that a receiver be appointed with the usual powers to collect the remaining assets, and if collected to divide the same.</p> <p>November 1, 1899, the court, after full hearing, modified the report and findings of the referee by charging up to the plaintiff the amount paid by the firm for insurance on the buildings and also the amount paid by the firm for taxes on the real estate, and also the amount expended by the firm in reconstructing one of the buildings after being destroyed or damaged by fire in 1873, and also modified the report by deducting the amounts credited to the firm for moneys received from insurance in payment of losses by fire, by way of rebates on insurance premiums, all of which said items the referee was directed to charge or credit, as the same might be, to the plaintiff instead of the firm.</p> <p>Thereupon the referee restated the account and found that the amount due the plaintiff from John S. Hart was $3,710.02 with interest thereon from November 25, 1898, instead of the amount previously reported, and the report so modified was in effect confirmed by the court and judgment entered thereon accordingly May 15, 1900. February 7, 1901, John S. Hart died intestate, and thereupon the defendant, Sands M. Ha/rt, was duly appointed administrator of bis estate. .</p> <p>The plaintiff appeals from so mncb of the judgment as charges np to the plaintiff and credits the firm with $1,059.63 paid by the firm on building account for reconstructing one of the buildings destroyed by fire in 1873, and also $5,074.45 paid by the firm on account of insurance on the mill and warehouse, and also' $3,370.57 paid by the firm on account of tuxes on the mill and warehouse, and also, in so far as is adjudged that plaintiff is not entitled to interest on the balance due her from and after February 1, 1877, to November 25, 1898. The defendant appeals from the whole of said judgment.</p>

<p>EeeoR to review an order and judgment of tbe circuit court for Kenosha county: E. B. BeldeN, Circuit Judge.</p> <p>Plaintiff in error, by an examining magistrate, in due form of law, was held for trial at the circuit court for Kenosha county, Wisconsin, upon two charges of criminal bribery. One was alleged in the complaint to have been committed June 25, 1900; the other July 2, 1900. The particulars of the charge in the first count differ from those in the second only in the amount of money alleged to have been paid for official influence and action. The description of the offense of June 25, 1900, was in the main as follows: June' 25, 1900, at the city of Kenosha, in said county, John Oaster, being then an alderman of the city of Kenosha and a member of its common council, did unlawfully, feloniously and corruptly solicit, accept and receive, and agree to receive, of a person named, a specified consideration, including $50 in money, upon an agreement that his vote, opinion, judgment, and action should thereby be influenced in favor of and that he should vote for the passage of a certain street railway ordinance, particularly described, then before such council for consideration, the person paying such consideration and entering into such corrupt agreement with said Gaster knowing of the latter’s official position.</p> <p>The accused was admitted to bail and subsequently surrendered to the sheriff of Kenosha county by his bondsmen. Thereupon he sued out of the circuit court for Kenosha county a writ of habeas corpus, returnable before a circuit court commissioner, to test the legality of his detention under the proceedings before the examining magistrate. The ground of illegality alleged in the petition for the writ was that there was no evidence before the committing magistrate warranting the conclusions reached by him. Due return was made to the writ. The result of the proceeding was that the jurisdiction, of tbe committing magistrate was sustained and tbe accused was remanded accordingly.</p> <p>Thereafter, while be was in custody pursuant to such remand, upon a petition setting forth tbe history of all the- proceedings before tbe committing magistrate and tbe subsequent proceedings mentioned, and alleging that tbe decision of tbe commissioner was erroneous and of no effect because there was no evidence warranting tbe conclusions reached by tbe committing magistrate, a writ of certiorari was sued out of tbe circuit court to test tbe validity of the decision in tbe habeas corpus proceedings. Due return was made to tbe writ and such proceedings were thereafter bad in tbe matter upon tbe record that tbe order of the commissioner was affirmed. A writ of error was then sued out to bring the order and judgment of affirmance, and all tbe proceedings upon which tbe same were based, before this court for review.</p>