Volume 121 — Wisconsin Reports

E. DuNWIddie, Judge. Tbis is an action in equity brought to declare void two-ordinances of tbe city of Bacine, one of wbieb attempts to vacate a portion of Eigbtb street in said city, and tbe other to permit tbe defendant corporation to make certain uses of a part of said Eigbtb street.

B. BeldeN, Circuit Judge. Action to recover on a written contract. The terms thereof are to the following effect: Plaintiff offered to furnish defendant a specific quantity of flavoring extracts, toilet and miscellaneous articles for $173 upon certain conditions, and defendant accepted sucb offer.

Halsey, Circuit Judge. Appeal from au order setting aside tbe service upon tbe ■defendants and dismissing tbe action.

TaheaNT, Circuit Judge. Plaintiff brings this action to recover damages for an alleged breach of contract. Plaintiff and defendant city of Milwauhee entered into a contract on June 30, 1890, whereby plaintiff agreed and undertook the construction and placing of a crib in Lake Michigan, forming part of a new intake in connection with the waterworks system of the city.

Tabeastt, Circuit Judge. Mandamus action to compel the Board of Trustees of the Policemen’s Pension, Fund, of tbe city of Milwaukee, to place tbe relator’s name on tbe pension roll of tbe police department of said city as of tbe 20th day of April, 1900.

<p> Negligence: Passenger elevators: Door partly open: Contributory negligence. </p> <p>A guest in an hotel, familiar with the elevator, which was in a dark corner and not lighted in the daytime, approached it, having in mind the question whether the car was there or not, hut it was too dark for him to see, although he looked. The door stood about half open. He pushed it open with his shoulder, stepped in, and fell down the shaft. A few moments before, he had stepped into the car through the door, which was then fully open. Held, that he was guilty of contributory negligence as a matter of law.</p>

<p> Negligence: Wanton injury: Pleading: Theory of- case on appeal: Injury to street cleaner: Negligence of driver: Contributory negligence. </p> <p>1. Mere proof of an injury caused by ordinary negligence is not sufficient to establish a cause of action for a wanton injury; and in an action for the latter plaintiff cannot recover for the former, if seasonable objection is made.</p> <p>2. Where both, parties have treated an action as one to recover for ordinary negligence, this court will so treat it, although the complaint charges that the negligent act was also reckless, wilful, and malicious.</p> <p>3. The driver of an ice wagon who allows his team to proceed along the street without guidance, while his entire attention is devoted to preparing the ice for delivery, cannot he said as a matter of law to be free from negligence if the team runs against and injures a person on the street.</p> <p>4. Plaintiff, a street cleaner, whose duties required him to move about on the street without taking any particular course and to make frequent trips to the side of the street to empty his shovel, was working to the westward on the south side of an asphalted avenue and had just turned to the left to go to the curb when he was run down by the team attached to an ice wagon proceeding westward without guidance from the driver, who was otherwise engaged. Held, that plaintiff’s failure to look for teams approaching from behind him was not contributory negligence as matter of law.'</p>

<p> Justices’ courts: Criminal jurisdiction: Milwaukee police court: Constitutional law: Void proceedings: Liability. </p> <p>1. Sec. 5, eh. 6, Laws of 1895, divesting justices of the peace in the city of Milwaukee of jurisdiction in criminal cases, and vesting such jurisdiction in the police court of the city, applies to offenses committed outside of the city, hut within the county, as well as to those committed in the city.</p> <p>2. Such legislation does not contravene see. 2, art. VII, Const.</p> <p>3. When justices of the peace act in cases of which they have no jurisdiction their proceedings are void and they become trespassers, and as such are liable to any person injured by their acts.</p> <p>4. A warrant showing upon its face that the justice issuing it has no jurisdiction is no protection to an officer making an arrest thereon.</p>

<p>Leeds: Delivery: Agency of depositary: Death of grantor: Sale of land: Bona fide purchaser: Possession.</p> <p>1. Where a person, in expectation of death, executes a conveyance and places it in the hands of a depositary for delivery after his death, hut reserves the right to reclaim the instrument in case he gets well, there is no delivery, and the agency of the depositary to make delivery terminates with the grantor’s death.</p> <p>2. Although the vendor of land and of personalty had record title to the land and apparent title to the personalty under hills of sale, the facts that the land was not in her possession hut in the possession of the heir of a person under whom she claimed, and that the personalty was held by the special administrator of said person, are sufficient to put the purchaser, having knowledge of such facts, upon inquiry as to the vendor’s actual rights.</p>

<p> School Districts: Contracts: Evidence. </p> <p>1. A contract for the employment of a janitor for a district school can be made only by the district board at a meeting thereof duly called and held.</p> <p>2. The best evidence of the acts of a school board is the record of its meetings, kept by the clerk.</p>

Williams, Circuit Judge. Action to set aside a deed upon the ground of undue in•fluence. The issues raised by the pleadings will sufficiently appear from the findings of fact. The court determined that upon these circumstances the legal rights óf the parties depended : February 23, 1903, at the age of seventy-two years, Henry Schmidt died.

Tarrant, Circuit Judge. Action for damages by death of Michael Hart, caused by a defect in highway, under following circumstances: Between 3 and 4 o’clock a. m. of April 7, 1901, Hart was driving a reasonably quiet horse in front of a buggy containing himself, wife, and daughter, southward on Kinnickinnic avenue, toward a point where a swing bridge crossed the Kinniekinnic river, with which he was entirely familial’,. having driven -over same daily for many months.

WilliaMS, Judge. This is an appeal from a judgment in favor of respondent for damages and costs in tbe sum of $2,482.74. Tbe action is brought to recover damages for personal injuries sustained by respondent by falling on tbe sidewalk in tbe street of appellant city at about 9 :30 o’clock on tbe evening of July 11, 1901.

Williams, Circuit Judge. This action was brought to recover damages for a personal injury. Appellant is a corporation engaged in cutting, storing, delivering, and selling ice in the city of Milwaukee, and had been so engaged for a number of years prior to the alleged injury. Eespondent was a servant of appellant, working in and about its icehouse. At the time of the injury he was fourteen years of age.

Halsey, Circuit Judge. This is an action in equity to enjoin the infringement of alleged trademarks and to prevent unfair competition in trade. The defendant Dietz demurred generally to the complaint, and appeals from an order overruling the demurrer.

<p> Contracts: Delivery upon condition precedent: Farol evidence: Sale of membership in chamber of commerce. </p> <p>Parol evidence is admissible to show that a writing signed and delivered was not to become binding as a contract until the happening of some event or the ascertainment of some fact. Thus, it may be shown by parol that the transfer, by indorsement and delivery, of a certificate of membership in a chamber of commerce was not to take effect in case an agent of the vendor had already disposed of the membership.</p>

<p> Powers: Life estate, when changed, to fee: Execution of power: Statute construed. </p> <p>A testator devised land to his wife for her life and gave her also an absolute power of disposition thereof, unaccompanied by ■ any trust. Any part thereof which might remain at her death he gave to his children. The widow sold a portion of the land .and gave a warranty deed thereof, which was intended by her to convey the fee, but which made no specific reference to the will or the power of sale therein contained. Held, that the grantee was a purchaser within the meaning of sec. 2108, Stats. 1898; that in respect to his rights the estate of the widow was a fee by virtue of that section; and that the sale and conveyance by her was such an execution of the power as that section contemplates.</p>

W. Buenell, Circuit Judge. This is an action to recover for personal injuries sustained by the plaintiff by reason of a collision between the defendant’s street car and a carriage in which she was riding. It is alleged that the defendant’s employees were negligent in driving the car at a high rate of speed exceeding the rate fixed by the city ordinance, and in failing to ring the bell or give any warning.

<p>Appeals from a judgment of tbe circuit court for Eau Claire county: A. J. Viitje, Judge.</p> <p>Winding-up action. James T. Barber and tbe McDonough Manufacturing Company, a corporation, as creditors of the National Electric Manufacturing Company — neither having obtained a judgment against it, and none having been otherwise obtained — commenced an action in the circuit court for Eau Claire county, ostensibly under sec. 3216, Stats. 1898, and its associate sections, against the electric company to sequestrate its property for the benefit of its creditors. The ■complaint contained numerous allegations showing urgent necessity for removing such property beyond danger of attack by individual creditors, and those usual in such actions, except as to the existence of a creditor’s judgment and the exhaustion of all legal remedies to collect the same without ■success. The action, though in form adversary, was in fact friendly in that the officers of the corporation deemed it advisable that such proceedings should be taken to place the property of the corporation beyond the reach of individual hostile action by creditors, and promoted the same. The person who had been general counsel for the corporation from the time of its organization severed his relations in that regard to take charge of the sequestration proceedings. He prepared the complaint and was the attorney for the plaintiffs. He also prepared the defendant’s answer, a brother attorney signing the same and appearing as the defendant’s attorney. Such answer admitted the allegations of the complaint.</p> <p>Upon the pleadings so prepared R. E. Rust, a director and the secretary of the corporation, was in due form appointed receiver of its property. Seasonably thereafter he ■qualified pursuant to such appointment, and possessed himself of the corporate property. The order of appointment ■contained the usual injunction as to the commencement of other actions against the corporation and as to the disturbance of its assets in the hands of the receiver or otherwise. •Such proceedings were thereafter taken in the action that ■on June 10, 1893, an order was entered for all creditors of the insolvent to exhibit their claims against it and come into the action within a time therein specified under penalty of being barred from participating in the distribution of the corporate property. Notice to creditors was given as required therein. September 15th, thereafter, it being supposed that there was a defect in the complaint in such action in that statutory requisites prescribed in sec. 3216, Stats. 1898,— viz., the rendition of a judgment against the corporation, the issuance of an execution thereon, and the return thereof unsatisfied in whole or in part,- — were not alleged and that the facts in that regard did not exist, the attorney in such action, himself a creditor of the corporation, obtained a judgment against it, caused an execution to be issued thereon, which was returned unsatisfied, and then commenced a second creditors’ action against it in his own name, setting forth substantially the same facts as before, and, in addition, the statutory requisites mentioned. In the commencement of such action he caused E. M. Miner to appear for him as attorney, and the attorney who interposed the first answer to do likewise in the second action. Such second action was treated, as the fact was, as supplementary to the first action. Like such action, while adversary in form, it was in fact in accordance with the desire of the corporate officers and promoted by them. Upon the complaint and answer R. E. Rust was reappointed as receiver by the court, the order recognizing the pendency of the first action, his connection therewith, and the character of the second action as in aid thereof, all his acts under his first appointment being expressly ratified and confirmed. Under the second appointment Rust requalified in due form, and thereafter assumed to be lawfully in possession of the corporate property under the later appointment as Well as the earlier one. After the second appointment till the two actions were formally consolidated, as hereinafter stated, they were treated as one, all orders and papers being entitled as ■in both.'</p> <p>E. E. Eust, under such appointments, administered the duties of his office till he disposed of all the property of the insolvent and disbursed the proceeds of the same pursuant to the orders of the circuit court and ivas discharged. The proceedings immediately leading to such discharge consisted of a petition setting forth the history of the administration and praying for a final discharge and to have' the compensation of the receiver and his attorney fixed by the court; an order upon such petition for hearing and for-notice of such hearing to be given to all parties interested; the giving of such notice; the filing of objections by certain creditors; an order of reference to take evidence and report the same -with findings; a report by the referee; subsequent proceedings in respect thereto that will hereafter appear in detail; the decision by the court thereon; and three orders pursuant to such decision, allowing the receiver’s account and fixing his compensation and that of his attorney and counsel, and fully discharging him and exonerating his bondsmen.</p> <p>After the occurrences above detailed T. A. Harrigan and others, creditors of the corporation, filed a petition setting forth reasons for a formal consolidation of the two actions, for the vacation of the orders allowing the receiver’s account -and discharging him, and the orders respecting his compensation and that of his attorney and counsel, and also certain orders forming the basis for disbursements made by him, and for a reorganization of the action by maldng the plaintiffs therein defendants, and the petitioners and other creditors-who had filed claims, and such others as might choose to participate in the litigation, plaintiffs; and bringing into the action as parties defendant, H. H. Hayden, Fitch Gilbert, E. E. Eust, George T. Thompson, John S. Owen, D. E. Moon, A. J. Bust, the Bank of Eau Claire, the Chippewa Valley Bank, the Westville Lumber Company, for the purpose of enabling plaintiffs to litigate all questions as to their responsibility to the insolvent corporation for the benefit of its creditors growing out of their dealings with' the corporation and its property. Such proceedings were taken upon such petition that March 18, 1898, an order was duly entered as follows:</p> <p>1. Consolidating the two actions into one.</p> <p>2. Making James T. Barber and PI. PL Plavden defendants.</p> <p>3. Dismissing the action as to the McDonough Manufacturing Company.</p> <p>4. Making T. A. Harrigan, Morgan Brooks, Fred Bonell, Edward P. Allis Company, and Eureka Tempered Copper Company parties plaintiff, with the right of any and all other creditors of the insolvent corporation to he made such parties plaintiff at any time upon due application to the court and notice to' those specially made plaintiffs, or their attorneys, and to the attorneys of the defendants, and upon their sharing equally the expenses and costs of the litigation with those already parties plaintiff.</p> <p>5. Making T. E. PVawley, Fitch Gilbert, R. E. Rust,. George T. Thompson, John 8. Owen, D. R. Moon, A. J. Bust, the Bank of Eau Claire, the Chippewa Valley Bank, and the Westville Lumber Company parties defendant.</p> <p>6. Authorizing the plaintiffs in the action as reorganized to serve upon the defendants an amended summons and complaint, tendering such issues to the defendants as they might deem proper, within twenty days .from the date of the order.</p> <p>7. Permitting any defendant so' served to answer the complaint within twenty days from the date thereof.</p> <p>8. Vacating the three orders entered by the circuit court December 30, 1897.</p> <p>The facts alleged tendering new issues to be litigated, affecting the persons, firms, and corporations brought into the litigation as defendants, were, in the main, these: 480 shares of the capital stock of the corporation were issued, without being previously or thereafter paid for, to persons named as defendants. The distribution was to existing stockholders ostensibly as a dividend out of surplus assets legitimately applicable therefor. The corporation was then hopelessly insolvent to the knowledge of the recipients of such stock. January 1, 1893, the board of directors of the corporation consisted of Fitch Gilbert, George T. Thompson, Peter Truax, James T. Barber, John 8. Owen, Morgan Broolcs, and Ealph E. Eust. Gilbert was the president, Eust the secretary, and Thompson the treasurer. Eust, Truax, and Barber were directors of the insolvent from its organization till its suspension. Gilbert and Thompson were directors from about 1889, Broolcs from February, 1891, and Owen from October, 1892, till such suspension. During the last year the insolvent was a going concern H. O. and E. B. Putnam were stockholders, and said Thompson was a director and the treasurer thereof, and the three were also sole stockholders and directors of the defendant Ghippewa Talley Banlc, Thompson being the cashier thereof. W. A. Eust and H. PL Hayden, two of the stockholders of the insolvent, were largely interested in the defendant Bank of Eau Olaire, Eust being the president and Hayden the vice president thereof. The three Eusts were close relatives of each other and of John 8. Owen, and the four were largely the proprietors of the Eust-Owen Lumber Company and the Westville Lumber Company. D. E. Moon and James T. Barber were respectively president and vice president of the Northwestern Lumber Company. The individuals specifically named were intimately associated as officers and directors of the insolvent and otherwise, throughout the period of its existence as a going concern. Hayden was at different times its president, and during the whole of its business existence he was general counsel and manager of its legal business. He was at the same time largely the adviser and legal counsel of all the defendant corporations named, and of the stockholders of the insolvent, and of all the defendants. For several months prior to January 1, 1893, said individuals were fully informed that the electric company was hopelessly insolvent. About January 1, 1893, to fraudulently secure payment of various sums of money due them in severally or otherwise, or to the corporations named in which they were interested (the particular items of indebtedness referred to being specified), they formed a fraudulent scheme to divert the assets of the insolvent to the special benefit of themselves and that of the corporations in which they were interested by securing payment to themselves of the indebtedness so specified. Such conspiracy was subsequently fully consummated. In furtherance of such-scheme, prior to the appointment of the receiver such individuals caused substantially all the available notes, bonds, bills, and accounts receivable, owned by the insolvent, and contracts in which it had a pecuniary interest, to be secretly transferred to themselves according to their creditor relations to the insolvent, and to the corporations in which they were interested. To further consummate such scheme the participants therein caused the insolvent to make excessive purchases of supplies shortly before its suspension. The two winding-up actions consolidated into' this were in fact friendly suits, though in form adversary. Attorney Hayden, who was a director of the insolvent and interested with his associates as aforesaid, in fact directed both sides of both suits and secured the appointment of one of the conspirators as receiver. The proceedings resulted in the appointment of the receiver without notice to the general creditors, the purpose thereof being to forestall any effort on the part of such creditors to obtain an equitable distribution of the assets of the insolvent corporation in a legitimate winding-up proceeding. Further to consummate such scheme they caused the receiver to employ T. F. Frawley, an attorney conversant with the facts, the understanding being that he and said Hayden, though ostensibly acting for the receiver, should in fact cause the latter’s administration to be conducted in the private interests of the members of the combine; that they sbonld be in fact attorneys for such members, bnt assume such, an attitude as to enable them to obtain their compensation out of the assets of the insolvent. That part of the fraudulent conspiracy was consummated, $5,000 being paid said Hayden and $11,252 said Erawley, said payments being ostensibly for services rendered to the receiver, whereas the labor performed was largely in aid of the said fraudulent scheme. Further in pursuit of such scheme the receiver, while ostensibly administering his trust, performed much service for the private gain of the members of the combine as holders of hypothecations from the insolvent, taking credit for all such services as receiver, and received the sum of $7,500 which was largely therefor. After taking possession of the property of the insolvent the receiver continued to operate the manufacturing plant for several months, paying the expenses out of the general assets of the insolvent, during which time large amounts of money were expended in completing contracts in which the pecuniary interest of the insolvent had been assigned to members of the combine, as aforesaid, and in order that they might realize thereon. He also expended large sums of money in repairing machinery sold under contracts assigned as aforesaid in order that the assignees might realize thereon. The nominal assets of the insolvent aggregated $490,000. The amount realized by the receiver, as claimed by him, was $81,000, subject to the expenses of administering the trust, which expenses, as claimed by him, exceeded the entire amount so realized. Such expenses were, as indicated, largely in aid of the members of the combine to enable them to realize upon the assets of the insolvent assigned to them before the receivership. The plaintiffs had no knowledge of the alleged wrongful scheme, or the facts alleged to have occurred in the consummation thereof, till about July, 1897. That then obtained was not definite. Additional information came to them in such a way that it was not till long thereafter that they became possessed of the alleged facts in detail as to- the consummation of such a scheme.</p> <p>The prayer for relief was in part as follows: (1) That every defendant stockholder who received stock not paid for in full be adjudged to be liable for the deficiency tO' the creditors participating in the action. (2) That an accounting be had between the receiver’s representatives and the insolvent, of the administration of his office in respect to> all mat-, ters set forth in the complaint, and such representatives be required to refund all moneys retained by the receiver for services and all lost or wasted by him through his wrongful conduct. (8) That all defendants who received any benefit from assets assigned to them prior to the receivership as alleged in the complaint be required to refund the same by payment thereof into court or to the successor of the receiver. (4) That defendant Hayden be required to refund all moneys received by him from the receiver for services, and that defendant Erawley be required to do likewise.</p> <p>The defendants thus charged with liability upon the ground of fraud joined issue with the plaintiffs, and D. R. Moon’s representatives also pleaded in abatement his death, and the statute of limitations. When the cause was brought up for trial they interposed a demurrer ore ienus, which was overruled. A trial was had, with a result which can best be understood, as to the matters to be reviewed here, by giving the substance of the findings in respect thereto. We will pro* ceed to do> that.</p> <p>The allegations of the complaint as to the commencement of the first action being a friendly suit, the second of the same character and in aid of the first, the insolvency of the corporation and the existence of grounds for the winding-up suit when the Hayden action was commenced, were sustained. The indebtedness existing and established in the action by the participants therein at the time of the commencement of the . action, less payments made thereon, obtained from sources-other than property in possession of the receiver, such payments, however, having been reported and noted by him, was-found to be $226,453.02. It was further found that there-were some unreported payments received by some of the creditors from hypothecations, which should go in reduction of' their claims. The amount due each creditor on the face of' the proceedings was specified. The stockholders of the corporation were exonerated from the charge of having received dividend stock and rendered no consideration therefor, or being liable in respect thereto. As to such stock it was held that there was a bona fide surplus of corporate assets over liabilities according to inventories and records made in good faith, and that when the dividend stock was authorized and received the persons immediately concerned in the transaction in good faith believed that such surplus in fact existed and was a proper subject for distribution among stockholders and used by them in payment for the so-called dividend stock. The stockholders, directors, and officers of the corporation were also fully exonerated from having entered into any conspiracy in fraud of the general creditors of the corporation prior to March 15, 1893, and of having, pursuant to any wrongful agreement entered into prior to that time, diverted the assets of the insolvent to their own use as security for pre-existing liabilities of such insolvent to them or to corporations in which they were interested. They were also exonerated from the charge of causing the insolvent to make excessive purchases of supplies between January 1, 1893, and the commencement of the first action, in contemplation of its suspension, or for the purpose of carrying out any agreement between themselves to the prejudice of general creditors. All of the defendants brought into the action by the supplemental complaint were exonerated from all charges of wrong-doing which they were therein called upon to answer for, except as may otherwise appear by findings of fact, which will be now given in substance, with numbers corresponding to the originals:</p> <p>72. Between May 15 and May 18, 1893,'the defendants determined to speedily close up the-business of the insolvent, being convinced that no relief from its financial difficulties could be obtained.</p> <p>73. All participants-in stockholders’ and directors’ meetings subsequent to May 18, 1893, knew that proceedings would soon necessarily be taken to wind up the corporate affairs.</p> <p>113. Before the commencement of the first action it was agreed between defendants Gilbert, R. E. Rust, Hayden, and Thompson, to begin the same so as to forestall any litigation by general creditors, and to thereby secure to themselves control of the corporate assets so that an equitable distribution thereof might be prevented and the defendants be able to secure an unlawful preference as to claims held by them and by corporations in which they were interested; and also to secure large sums of money out of such assets for pretended services in relation to the receivership.</p> <p>114. R. E. Rust’s first appointment was secured pursuant to such agreement. He participated in the preconceived plan aforesaid, and aided in carrying it out until his discharge.</p> <p>115. He retained T. E. Erawley as his attorney, who, about that time, was fully advised of such preconceived scheme. Thereafter, till the receiver was discharged, he aided in carrying out such scheme.</p> <p>116. Erom September 4, 1891, until immediately before the receiver’s appointment, Hayden was general counsel for the insolvent. He resigned such position to- take service under the receiver May 23, 1893, continuing therein till the receiver was discharged, and aiding from- first to last in carrying out said scheme.</p> <p>117. Had til© receivership matter been properly handled it would have been closed np in about eighteen months.</p> <p>118. In 1894 the receiver collected $6,353.95, $2,623.24 being for the benefit of parties holding hypothecations made by the insolvent before its suspension.</p> <p>119. In 1895 $1,744.91 was collected.</p> <p>120. In 1896 $5,824.16 was collected, substantially all being from one creditor, and through the medium of a mercantile agency.</p> <p>121. $757.36 was collected in 1897.</p> <p>122. The receiver realized from the corporate property $88,000 in all, which included $11,000 collected on hypothe-cations held by certain of the defendants, the same being paid to them by order of the court.</p> <p>123. The receiver, by court order, operated the manufacturing plant for a time, exceeding his authority, however, by borrowing $19,500 when his power in that regard was limited to $5,000.</p> <p>124. The receiver’s inventory was-filed October 19, 1893. Soon thereafter it was removed from the court files, since which time no trace of it has been found though diligent search therefor has been made by the clerk of the circuit court</p> <p>125. Soon after the receiver’s appointment the stockholders of the insolvent, the Bank of Eau Olaiye, the Chippewa Valley Bank, and the Westville Lumber Company, through attorneys Hayden and Erawley, filed proofs in due form of their respective claims against the insolvent, no mention being made of security turned out before the suspension of the corporation, held by the claimants.</p> <p>126. Ho report was filed by the receiver till Juné 23, 1897. Until then, general creditors were ignorant of the administi’ation of affairs by him.</p> <p>127. Prior to such date none of the creditors, other than ■those named as defendants, were familiar -with any of the matters connected with the handling and disposition of the -assets of the insolvent.</p> <p>128. Knowledge of the pledging of corporate assets before the suspension was confined to those immediately corn -cemed in giving and taking the security.</p> <p>129. May 16, 1892, Gilbert, Thompson, and E. E. Rust, for the accommodation of the insolvent, indorsed its $8,000 note to the National Exchange Bank of Milwaukee. The note was renewed from time to time with the same indorse-ments, the last being January 18, 1893, when the indorsers received from the insolvent, as security, an assignment of an electrical plant at Brookfield, Indiana, which was invalid. May 18, 1893, the insolvent mortgaged such plant to the indorsers to secure them, no consideration, however, then passing between the parties. The mortgage was recorded in Indiana the day E. E. Eust was first appointed receiver, the expense thereof being subsequently charged against the assets of the insolvent. The mortgage was given to allow, and taken to obtain, an unlawful preference, defendant Hayden acting for the parties to, the transaction with knowledge of all the facts.</p> <p>130. In aid of the original fraudulent scheme the receiver, ■Gilbert, Thompson> Erawley, and Hayden, July 12, 1893, obtained a court order to sell such plant at private sale for the amount due the National Exchange Bank of Milwaukee, if practicable, otherwise to make public sale thereof upon ten days’ notice in an Eau Claire paper.</p> <p>131. Prior thereto it was agreed between Thompson, Gilbert, and the receiver to become owners of the plant by private purchase.</p> <p>132. That was well known to Hayden and Erawley, who participated in consummating the same, securing in aid thereof the order before mentioned.</p> <p>133. July 18,1893, such, plan was consummated, the property being conveyed in form to Thompson, the real purchasers, however, being Thompson, Gilbert, and the receiver. The purchase price for the property was $8,287.20, the limit mentioned in the order as to the making of a private sale. The sale was reported to the court in form and confirmed.</p> <p>134. The value of the plant when sold was the amount paid therefor.</p> <p>135. Upon the sale being confirmed the receiver furnished Thompson a copy of the order authorizing it, a copy of the report of sale and of the order confirming the same, and the receiver’s deed, taking a receipt therefor. The court, throughout, was kept in ignorance of the interest of Thompson and the receiver in the sale.</p> <p>136. At the time of the sale, by book account, the Brook-ville plant owed Rust, receiver, $1,160.30.</p> <p>137. 138. He was familiar with the facts in reference to the account.</p> <p>139. Soon after the sale the parties interested formed a plan for organizing a corporation to take over the title to the property. That was consummated, the stock of the corporation being issued in equal proportions to R. E. Rust, Gilbert, and Thompson. The plant was thereafter operated for their benefit.</p> <p>140, 141. The amount due from the Brookville plant to the receiver at the time of the sale was $556.50. That was wrongfully appropriated, by the parties concerned in the sale, to their own use.</p> <p>142. Subsequent to the sale the parties interested conceived the idea and agreed to take the property as of the date of their mortgage thereof, May 18, 1893, instead of as of the ■date of the sale.</p> <p>143. That was not known or authorized by the court.</p> <p>144. Had the property been sold as of May 18, 1893, the amount coming to Rust, receiver, on the account against the Brookville plant, would have-been $450.32.</p> <p>145. Said sum was wrongfully appropriated by the parties to the sale, to their own use in operating the plant after May 18, 1893.</p> <p>146. March 15, 1897,' the receiver, under oath, informed the court that the account against the Brookville plant at the date of his appointment was $1,196.40, and was uncollectible ’ and worthless.</p> <p>147. Such proceedings were had that such’ account, with others, aggregating $22,000 face value, were in form, June 27, 1897, sold for $49.50, a court order having been obtained authorizing a sale thereof, the court being informed that the ■property was worthless.</p> <p>148. When such representation was made as to the Brook-ville plant account, the receiver knew that $556.50 had been collected and made available to pay the same, but had been converted by him and his associates to their own use.</p> <p>.149. Prior to the receivership an account of $1,550, due the insolvent from the Consolidated Engineering Company, had been assigned to R. E. Rust, Gilbert, and Thompson as security for their endorsements on a $3,500 note to the Bank of Eau Claire.</p> <p>150. After the receivership commenced that account was garnished. The assignees intervened and were successful. Litigation followed against the debtor in the name o’f the receiver, resulting in the collection of $866.66, which was paid to him. All such litigation was conducted by or through the mercantile agency of R. Gr. Dun & Co. ’</p> <p>151. Subsequent to the aforesaid collection the court was informed by the receiver that the money in fact belonged to him personally, and to Thompson and Gilbert. Payment thereof was ordered accordingly</p> <p>152. Prior thereto the receiver expended $145 of receivership money in making the collection.</p> <p>153. Thompson and Gilbert knew when they participated in the matters respecting sneh account, that T. E. Erawley was acting for them in the matter at ihe expense of the receivership.</p> <p>154. Erawley was paid $430 ont of the receivership assets for his services in respect to such account.</p> <p>155. The receiver acted with knowledge of the facts in regard to the receivership assets bearing the burden of collecting said account.</p> <p>156. June 21, 1893, Rnst, as receiver, charged to Gilbert and Thompson, $10.75 for expenses respecting an hypothecation held by them, and later obtained permission to charge the same to receivership expenses.</p> <p>157. A contract between the insolvent and the Bucyrus Steam Shovel & Dredge Company was hypothecated, before the suspension, to Thompson, Owen, Gilbert, and Moon as security for their indorsement of a $12,000 note to the National Exchange Bank of Milwaukee.</p> <p>158. The insolvent had agreed to install for said company, before December 15, 1892, certain electrical machinery, R. E. Rust, Thompson, and C. A. Daigh guaranteeing performance. The agreement provided for $50 per day damages for delay and the guarantee covered that feature.</p> <p>159. By May 23, 1893, $5,510.09 had been expended upon the contract, or $960.09 in excess of the contract price-for installation.</p> <p>160. May 23, 1893, said Bucyrus Company, independent of the aforesaid contract, owed the insolvent $1,795.34.</p> <p>161. When the receiver was appointed, he, Gilbert, Thompson, Owen, and Moon knew the proceeds of the aforesaid contract would be required to discharge the note to the National' Exchange Bank of Milwaukee.</p> <p>162. June 6, 1893, the receiver notified Owen that the contract was not completed and that there was a generator on hand designed to be used for that purpose, and that he could not go on with the contract without the assignees thereof guaranteeing payment for such machine; that upon security being given him for $2,500 for the machine, within a reasonable time, it would be used as designed.</p> <p>163. July 1, 1893, the receiver informed the court in writing of the Bucyrus Company contract, the assignment thereof, and that the assignees required him to complete the same or to' deliver to them the property designed therefor. The court was further informed that the aforesaid generator was of the value of $1,500, and requested to give directions in the premises. Thereupon the receiver was ordered to ship the generator, to collect all the money payable upon the contract for the benefit of the assignees thereof in excess of $1,500, and to hold that for further advice. Prior to such proceedings the Bucyrus Company notified Bust, Thompson, and Gilbert that their liability for the stipulated damages heretofore mentioned would be enforced.</p> <p>164. Between September 14 and November 16, 1893, the receiver expended in completing the Bucyrus contract, $2,646.24, without any judicial authority except as aforesaid.</p> <p>165. February Y, 1894, the receiver informed the court of the facts with reference to the Bucyrus contract, that the contract had been completed, that $5,986.95 was due thereon, that payment had been refused and would have to be enforced by judicial proceedings, and that it was in the interests of the general creditors that he should do so free from any claim of Gilbert, Thompson, Owen, and Moon. Judicial authority to do that was asked for, the fruits of the proceedings, when obtained, to be subject to the claim of Gilbert, Thompson, Owen, and Moon by reason of the contract assigned to them as aforesaid. They consented thereto.</p> <p>166. Before the last circumstance occurred the Bucyrus Company paid the receiver, independently of said contract, $000, leaving due from such company on the independent account, an undisputed balance of $1,195.34.</p> <p>167. At the time of the occurrence stated in 165 the situation as to dealings with the Bucyrus Company contract stood thus: The amount expended prior to the suspension and remaining unpaid was $5,710.09; the amount due outside the contract was $1,195.34; the amount expended by the receiver in executing the contract was $2,646.24.</p> <p>108. .Further, at the time of such occurrence, all parties •concerned knew that nothing could be realized from the Bucy-rus Company for general creditors.</p> <p>169. As per judicial consent given, the receiver commenced judicial proceedings to' enforce a lien against the property of the Bucyrus Company to the extent of $5,996.95.</p> <p>170. His attorney in such matter, T. E. Erawley, was. paid out of the assets of the insolvent for his services in the matter $446.80. Other'expenses were incurred in such matter to the extent of $187.90.</p> <p>171. Nothing was realized therefrom, the result being that the sums expended in respect thereto were wholly lost.</p> <p>172. Gilbert, Thompson, Owen, and Moon, in participating in the receiver’s handling of such matter, purposed having the expenses of collecting their claim paid out of receivership money.</p> <p>173. When said generator was used as aforesaid, it was charged by the receiver to Gilbert, Thompson, Owen, and Moon. Thereafter he obtained an order of court exonerating such parties therefrom.</p> <p>174. Previous to the receiver’s appointment the insolvent hypothecated a $1,500 account against the Bigelow Electric Supply Company to' Gilbert and Thompson as security for their indorsement of several of its notes. ' After such appointment the receiver paid $127.36 out of receivership money in •collecting the collateral for the holders thereof, all concerned knowing that it was to the prejudice of the general creditors. The receiver also paid out of the assets of the insolvent, to Attorney Erawley, $214.90 for services in respect to the enforcement of such collateral.</p> <p>175. During the time the insolvent did business, it installed at Asheville, Rorth Carolina, an electrical plant for the contract price of $32,000, receiving as part payment bonds from the People’s Light, Heat & Power Company, of Asheville, of the face value of $14,500. The total issue of such bonds was $17,000. March 23, 1893, $6,000 thereof were held by the Chippewat Valley Bank as collateral; $5,000 by M. G. Shaw for the same purpose; $3,500 by the insolvent; $1,500 by J. A. Lyman of Asheville, and $1,000 by W. Barnhart of Asheville.</p> <p>176. A short time before the appointment of the receiver, $1,000 of the bonds were sent to' Asheville to be used in payment for certain real estate'upon which the electric plant had been constructed, but the owner would not accept the same.</p> <p>■ 177. Shortly prior to' such appointment the Asheville plant had been sold by the bondholders and bid in by H. B. Walms-ley for $5,001 for those other than the ones residing at Ashe-ville. The latter refused to become parties to the purchase-. Their part of the proceeds of the sale was $735. It was necessary to pay that, and $1,100 for land upon which the plant was constructed.</p> <p>178. The receiver had no judicial direction, nor did he ask for any, in respect to protecting the interests of the general creditors in the Asheville bonds, except as herein stated.</p> <p>179. Immediately after his appointment he began to deal with the Asheville bonds held by him, and the Asheville plant, as individual owner thereof. Such conduct continued until he was discharged. In that he was guilty of wrongful conduct as follows: In not disclosing to the court the ownership of the bonds sought to be used in payment of the real estate upon which the plant was situated; in disclosing to the court the ownership, as assets of the insolvent, of hut $2,500 of-•snch bonds when the amonnt Was in fact $3,500; in representing to the conrt by verified petition that prior to the receivership the insolvent had contracted to install the plant at Asheville and that the contract had been assigned to Thomp-. ■son, Shaw, and himself as security for moneys loaned the insolvent, knowing that no such assignment had been made and that the plant had been completed long prior to the receivership and sold as aforesaid; in concealing from the court that machinery had been sold by him from the Asheville plant for $1,400; in endeavoring through his attorney to obtain judicial authority to sell to himself, as property of no value, the Asheville bonds forming a part of the assets in his hands ■as receiver, representing such bonds to be $2,500.</p> <p>180. June 27, 1897, said Asheville bonds, with other assets, aggregating $22,000, were in form- sold to De Alton S. 'Thomas for $49.50.</p> <p>181. The receiver fraudulently converted to his own,use the $3,500 of Asheville bonds, they being then worth, reasonably, $1,000.</p> <p>182. July 30, 1895, he expended, as expenses in connection with the Asheville plant, $524.26, charging the same to himself and Thompson.</p> <p>183. Subsequent to April 8, 1897, the receivei’, represented by his attorney, petitioned the court for and obtained an order in effect making such charge of $524.26 expenses of the receivership.</p> <p>184. Soon after the receivership commenced the receiver began personal suits at Asheville as part owner of the Ashe-ville bonds, which suits are still pending.</p> <p>185. Defendant Hayden was and is one of the attorneys -in such litigation.</p> <p>186. Such wrongful conduct of the receiver was with the knowledge of Erawley, Hayden, and Thompson.</p> <p>187. The charge against Thompson respecting the Ashe-ville plant was properly chargeable to tbe Chippewa, Talley Banlc as bolder of tbe Asheville bonds as security.</p> <p>188. Prior to August 6, 1896, tbe receiver expended $161.71 respecting an account against Armour & Co-, of Chicago, assigned by tbe insolvent to tbe Chippewa Talley Banlc prior to tbe suspension, charging tbe same to Thompson, its cashier, tbe parties concerned knowing that nothing could be realized in any event for general creditors. Thereafter the receiver, by order of tbe court induced by him, made such charge a part of tbe general expense of tbe receivership.</p> <p>189. Tbe receiver paid out $853.80 in completing a contract with tbe St. Louis Electric Light & Power Company, hypothecated to Gilbert, Rust, and Barber prior to tbe suspension, be, and tbe parties to he benefited, knowing that nothing could be realized for tbe benefit of general creditors. Tbe expenditure was first charged to the parties beneficially interested, but afterwards to- tbe expense of tbe receivership-administration.</p> <p>190. Prior to July 1, 1893, tbe receiver paid $51.20 in completing a contract assigned to Rust, Gilbert, and Thompson as security, all parties concerned knowing that nothing could be realized for general creditors.</p> <p>191. He used $184.97 of receivership assets in tbe collection of an account against tbe National Electric Manufacturing & Construction Company of New York, knowing that it was held by tbe Chippewa Talley Banlc as security.</p> <p>192. He and tbe officers thereof knew that nothing collected upon said account could go- to- general creditors.</p> <p>193. Before tbe receivership tbe insolvent hypothecated an account due to it from Caspari, Whittaker & Co-, as follows: $1,550 to- Thompson and Gilbert; $1,150 to said Thompson and Gilbert and R. E. Rust; $2,880 to- said Gilbert; and subsequently to tbe appointment of tbe receiver,, with tbe knowledge and consent of said parties, be expended out of tiie assets of the insolvent $3.69.72 on account of such security.</p> <p>194. Whem such expenditure was made the receiver and all parties concerned knew that nothing could he realized upon such security for the benefit of general creditors.</p> <p>195. April 8, 1897, the receiver informed his attorney that he had an account against John 8. Oiven and others for $1,500 for the machine, used in executing the Bucyrus contract, one against Gilbert, Rust, and Barber of $853.88 used in executing the contract with the St. Louis Electric Light & Power Company; one against Gilbert, Rust, and Thompson of $10.75 for expenses incident to an account against the Globe Shoe & Clothing Company of St. Louis; one against Truax for $46.51, used respecting an account against Cook County Hospital; one against Thompson of $161.71, for expenses as to an account against Armour & Co.; one against Thompson, Shaw, and Rust of $524.26, for expenses as to an account against the Asheville plant; and that he desired the court to release the debtors because he had been unable to collect anything upon the accounts; that an account known as the Asheville bond account, for $2,500, was of no value, and he desired authority to sell it to himself.</p> <p>196. Thereupon the attorney prepared a petition to be and which was verified by the receiver, setting forth the existence of such accounts; that when the expenditures were made it was supposed there was a margin in the collaterals realizable for general creditors; that none of the parties against whom the charges were máde realized any benefit therefrom; that they insisted they were not justly chargeable therewith, and that the receiver Coincided with that view.</p> <p>197. The receiver and his attorney and counsel then knew that no further sum could be collected upon the hypotheca-tions involved. Their purpose was to wrongfully relieve the debtors from' their liability to pay the expenses.</p> <p>198. No proceeds from any of the hypothecations inured to the benefit of general creditors.</p> <p>199. All expenditures made by the receiver respecting them were known by him and the holders thereof to- be for the benefit of the latter.</p> <p>200. From beginning to end the receivership was managed by Rust and his attorney and counsel for their sole personal benefit and that of Thompson and Gilbert and the Chippewa Valley Bank, pursuant to the original fraudulent scheme stated.</p> <p>201. It was part of such scheme that all the assets of the insolvent should be absorbed without paying anything to general creditors.</p> <p>202. Frawley charged the receiver for all services rendered for him, and all for the persons holding the hypotheca-tions as well.</p> <p>203. Such charges were largely in excess of what was reasonable in any event, as for instance: $1,450 in connection with the sale of the manufacturing plant for $7,500, a reasonable charge being limited to $200; $500 for preparing a petition for confirmation of the sale of the plant and an order to that effect, whereas $50 would have been reasonable; $265 in connection with the sale of the Brookville plant, while a reasonable charge could not have exceeded $50.</p> <p>204. Frawley charged the receiver large amounts, and received the same out of receivership money, for services not rendered by him at all, as, for example: $100 for collecting of the Monroe Water Works & Lighting Company, the services being rendered by John S.. Owen; $100 for collecting $2,550 upon certain bonds, the services being rendered by the Chippewa Valley Bank; $50- for collecting $1,104.09 of the Ball Electric Company, payment being in fact made directly to the receiver and the money turned over to Peter Truax who held the claim against said company as collateral; $50 for collecting $1,130 on a note, the services being in fact ren-<lered by Gilbert, who was the owner thereof; $120 for collecting $2,500 of the Pennsylvania Electric Company; $60 for collecting $1,530 of Chas. H. Baker; $20 for collecting $275.75 of the Reis Electric Specialty Company; $50 for preparing a paper in the sale of the Brookville plant, it being in fact prepared, to the attorney’s knowledge, by H. H. Hayden, who made a charge therefor.</p> <p>205. His total charges were $8,218.81, though he was allowed in addition, $3,092.42.</p> <p>206. On several occasions during the administration of the receivership, to the prejudice of general creditors he presented petitions to the court, signed by the receiver, containing representations known by the parties to be false, and omitting therefrom facts requisite for the court to know in order to act intelligently.</p> <p>207. During Attorney Hayden’s professional career of many years prior to the receivership, his uniform custom was to charge upon his books in detail for all professional services rendered.</p> <p>208. His charges against the receiver aggregated $429.74 for services and $50 for expenses.</p> <p>209. That included an item of $200 for services in obtaining the first appointment of the receiver. It was originally charged to James T. Barber, one of the plaintiffs in the first action, but later charged to the receiver.</p> <p>210. 211. In each instance where he rendered a service for the receiver he charged therefor, all such charges amount ing to 429.74, as indicated.</p> <p>212. He obtained, for services rendered the receiver, '$4,952.02 and $50 for expenses, pursuant to the aforesaid ■fraudulent scheme. ■</p> <p>213. While acting for the receiver he also acted as attorney for various persons holding hypothecations, his attitude being sometimes in hostility to general creditors. His services in the whole were compensated for by receivership moneys obtained as aforesaid, the total exceeding the actual value of his'services for the receiver by $4,047.82.</p> <p>214. Ex parte orders were obtained by Frawley, acting as attorney for the receiver, June 11, 1894, allowing the latter. $4,000 as part payment for sendees, and himself and ITayden each $3,000.</p> <p>215. Payments to- ITayden were as follows: $1,000 January 15, 1894; $2,000 June 18, 1894; $1,952.02 December 30, 1897, in addition to the $50 for expenses.</p> <p>216. Payments to Frawley were as follows: $2,000 January 3, 1894; $1,000 June 11, 1894; $8,341.63 December 30, 1897.'</p> <p>217. Those to Frawley included $197.61 for expenses.</p> <p>218. Those to Rust, receiver, were as follows: Prior to' June 11, 1894, $4,000; December 30, 1897, $3,427.82.</p> <p>219. Seasonably after the filing of the receiver’s report de*-fendant Truax, on behalf of himself and another, both being-large creditors, filed objections thereto and petitioned the court for a reference to a referee for an investigation of the disputed matters, and a report of the evidence taken in that regard to the court.</p> <p>• 220. The petition was granted, the reference, however,, being to take the evidence and report the same with the referee’s conclusions as to- the facts, and particularly to take the evidence and report in respect to items charged for legal services, the same being classified under several heads.</p> <p>221. The contestants, by their attorney, endeavored to-have the order not require the referee to malee'findings, while ITayden and Frawley urged that it should include such duty, and prevailed in that regard.</p> <p>222. December 21, 1897, while the referee was engaged' in the performance of his duties, Frawley secured an ex parte order requiring him to conclude the same and file his report' by December 27, 1897. Later he obtained another ex parte-order that the referee should file his report by December 30,. 1897.</p> <p>223. The taking of testimony ended that day. On the-same day Erawley prepared the report, with findings of fact.. The next morning the referee signed it, and with the evidence, consisting of from 500 to 600 typewritten pages, and all other papers in his hands respecting the cause, filed the-same with the clerk of the circuit court, the court being in session, and Erawley, Hayden, and the receiver being present-</p> <p>224. Thereupon Erawley, Hayden, and the receiver caused’ verbal notice to be given to the contestants’ attorney that the-court was ready to pass upon the report. Such attorney, treating such notice as imposing no> duty upon him, did not visit the court.</p> <p>225. The report was not snbjnitted to such attorney, nor did he have any notice, other than as aforesaid, of any proceedings in respect thereto on December 30, 1897. His conduct was based on the statute and the court rules, which were-well known to Erawley and Hayden and the receiver, as to notice of proceedings upon the report of a referee after the filing thereof. The findings specially directed to be made by the referee were intentionally omitted from his report, his conduct in that regard being brought about by Hayden, Eraw-ley, and the receiver.</p> <p>227. Upon Hayden and Erawley becoming advised that the attorney for the contestants would not appear and participate in the hearing on said day, they and the receiver held a consultation at the courthouse, the Revised Statutes, and the-rule of court in respect to the treatment of referees’ reports-being discussed, resulting in a determination that, so long as the report and findings as prepared remained on file, the court had no power to make or enter any order in respect to the matter before the expiration of ten days, and that the term of office of the presiding judge would expire within that time. Hayden, Frawley, and Rnst then agreed, in furtherance of the aforementioned fraudulent conspiracy, that if they were to secure an order on the report on that day, such report and the findings as prepared by Frawley and on file must necessarily be withdrawn and a different report substituted. Thereupon, by concert of action by all of the parties named, suck withdrawal fraudulently occurred and said parties caused to be prepared a brief certificate merely certifying, by the referee, that he had taken certain testimony and reported the same to the court. After such preparation a messenger in the employ of Mr. Frawley was sent to the referee to obtain his presence. Soon thereafter the referee arrived at the courtroom, and thereupon he, Frawley, ITayden, and Rust retired to a small room adjoining such room, for consultation, a suggestion to do so being made to the referee by the other parties named. In such room at that time, Frawley, Hayden, and Rust submitted to the referee the certificate prepared as aforesaid, requesting his signature thereto and stating that the circuit court had ordered his report and findings to be withdrawn from the files and such certificate to be substituted for the findings. The statute and circuit court rule before mentioned were considered at that time. The result of the consultation and the statements made to .the referee was that the latter complied with the request of his associates to sign said certificate. Thereafter such certificate was attached to the papers in place of the findings, and the same were then filed by the referee with the clerk.</p> <p>228. Upon the filing of the new report, Hayden and Fraw-ley presented to the court and obtained judicial sanction of •orders allowing the receiver’s account and discharging him, .and exotierating his bondsmen, and fixing the compensation to be paid to him for his personal services, and the amount to be allowed to him for expenses incurred in the employment of Mr. Hayden as his counsel and Mr. Frawley as his attor-nev, and of their filling those positions during the term of the-receivership.</p> <p>229, 230. In preparing the final order Frawley and Hayden embodied therein recitals in substance as follows:,,The attorney of the contestant procured an enlargement of the time for filing the referee’s report till December 30, 1891, to permit of his taking evidence as to the value of the services of the receiver, his attorney, and counsel. Prior to such enlargement, the court directed that such report should he filed before December 30, 1891, at which time the matter in dispute would be heard and disposed of by the court. The parties consented thereto and the referee having filed his report of the evidence, and the same being in the form required by the court, to wit, that he should report the evidence taken upon the hearing, such being the construction placed by the court upon its order of reference, being an' order of reference' to take and report the evidence.</p> <p>231. The idea of such attorneys in making such false recitals was that the term of court would end December 30, 1897, precluding creditors of the insolvent from! attacking-the order except upon appeal, where such recitals would be-regarded as verities.</p> <p>232. By December 15, 1897, Frawley, Hayden, Gilbert Thompson, and the receiver, knew an organization of general creditors existed, bent on securing an investigation of the receivership matters, and obtained the orders mentioned, supposing they would preclude such an investigation.</p> <p>233. The allowances made to the receiver and attorneys' December 30, 1897, exceeded the entire available assets in the hands of the receiver, so they divided what there was between themselves pro raía, each bearing his proportionate share of the deficiency.</p> <p>234. No effort was made in the receivership proceedings' to enforce payment of any of the insolvent’s accounts by the judgment of the court.</p> <p>235. All court orders in the receivership proceedings were • obtained ex parte.</p> <p>236. The services performed by the receiver and by Eraw-ley and Hayden were fraudulent and valueless to general creditors.</p> <p>237. The reasonable value of the receiver’s services, honestly rendered, would not exceed $4,000.</p> <p>238. That of the services of Erawley, $3,000. .</p> <p>239. That of the services of ITayden, $300.</p> <p>240. Except as indicated, the charges against the defond-ants, contained in the complaint, are not sustained.</p> <p>The conclusions of law reached by the court upon such •findings, necessary to appear here, other than those common to winding-up actions, are these in effect: (4) Judgment for $84.50, with interest thereon from June 18, 1893, should he rendered against defendant Gilbert, for receivership moneys wrongfully applied by him as indicated in finding 75. (5) Judgment should he rendered against defendant O-wen for $129.52, with interest from July 21, 1893, on account of a wrongful depletion of receivership assets as indicated in finding 87. (7) A joint judgment should he entered against Gilbert, and Thompson, and W. A. and A. J. Rust'as executors of the last will and testament of R. E. Rust, deceased, for $8,287.20, with interest from July 17, 1S93, because of the fraudulent disposition of the Brookville plant as indicated in the findings. (8) A like judgment should be entered against such parties for $556.50, with interest from July 17, 1893, for money due R. E. Rust as receiver, from the Brookville plant, and illegally appropriated by said Gilbert, Thompson, and R. E. Rust personally. (9) And a like judgment should be rendered for $155.72 and interest thereon from. August 18, 1894, on account of receivership moneys •used for the benefit of Gilbert, Thompson, and R. E. Rust re■specting the account against the Consolidated Electrical Engineering Company of St. Tmuis, Mo. (10) Also a like judgment for $51.20, and interest from July 1, 1893, on account of receivership moneys expended for tlie benefit of Gilbert and Thompson respecting tlie Cassadaga Eree Association account. (11) And a like judgment against Gilbert, Thompson, Owen, and said Rusts as executors as aforesaid, and .Sumner G. and Frank Ii. Moon as administrators Avith the will annexed of D. R. Moon deceased, for $2,834.14, with interest from March 18, 1896, on account of receivership moneys dissipated for the benefit of Gilbert, Thompson, Owen, R. E. Rust, and D. R. Moon, respecting the Bucyrus contract. (12) A like judgment against the Ghippewa Valley Bank, Thompson, and the Rusts as executors as aforesaid, for $524.26 and interest from July 30, 1895, on account of receivership moneys used respecting the Asheville plant for the benefit of said bank, Thompson, and R. E. Rust. (13) A judgment against the Rusts, as executors as aforesaid, for $1,000, and interest from October 1, 1893, on account of the value of the Asheville bonds converted by R. E. Rust to his own use as indicated in the findings of fact. (14) Also a joint judgment against Gilbert, Thompson, and the-Rusts as executors as aforesaid, for $127.30 and interest thereon from January 14,1895, because of receivership moneys wrongfully used respecting the Bigelow Electrical Supply Company account. (15) A like judgment against the Ghippewa Valley Bank, Thompson, and the Rusts as executors as aforesaid, for $161.71 and interest thereon from August 6, 1894, because of receivership moneys wrongfully used respecting the Armour & Oo. matter. (16) A like judgment against Gilbert, ■James T. Barber, and the Rusts as executors as aforesaid, for $853.80 and interest thereon from August 25, 1893, because •of a depletion of the assets of the insolvent respecting the contract with the St. Louis Electric Light & Power Company, mentioned in the findings. (17) A like judgment again'st the Ghippewa Valley Bank, and the Rusts as execu-. tors as aforesaid, for $184.97 and interest from August 6, 1896, for receivership moneys wrongfully used respecting the National Electric & Construction Company account. (18) A like judgment against Gilbert, Thompson, and the Busts as executors as aforesaid for $369.72 and interest thereon from June 6, 1894, on account of receivership moneys wrongfully used respecting the Caspari, Whittaker & Co. account. (19,-20, 21) No compensation should go to either the receiver, T. F. Erawley, or H. H. Hayden, because of wrongful conduct in the receivership proceedings. (22) A joint judgment should be entered against the Busts as executors, and Eraw-ley and Hayden for $23,523.86, with interest from January 3, 1894, on $2,000; from January 15, 1894, on $1,000; from June 11, 1894, on $5,000; from June 18, 1894, on $2,000; and from December 30, 1897, on $13,523.86. (24) All orders entered in the receivership- proceedings prior to and inclusive of the time of the discharge of the receiver should be modified or set aside so- far as inconsistent with the foregoing. (26) Costs in favor of the plaintiffs should go, generally, against defendants Barber and Gilbert, W. A. and A. J. Bust as executors as‘aforesaid, Thompson. Owen> and Bwnner G. and Franh H. Moon in their capacity as personal representatives of D. B. Moon, H. H. Hayden, T. E. Erawley, and the Ghippewa Valley Banlc, in a sum not ex-seeding $500 in addition to taxable disbursements.</p> <p>Judgment was in due time perfected in accordance with such findings and conclusions and others not necessary to specially mention. Eight separate appeals were taken therefrom, the findings and conclusions involved as to each having been duly excepted to. The following is a detailed statement of such appeals, and, in brief, the ultimate questions raised and the findings challenged:</p> <p>1. Appeal by W. A. and A. J. Bust, as executors as aforesaid, the ultimate complaint being of that portion of the judgment charging them with liability for $1,395.67, principal and interest, for the conversion of the Asheville bonds mentioned in conclusion 13, and, generally, for costs according to conclusion 26, the findings of fact excepted to being 1*75 and 178 to 181 inclusive</p> <p>2. Appeal by the Chippewa Valley Bank, George T. Thompson, and W. A. and A. J. Bust as executors as aforesaid, complaining of being charged with liability for $52426, $161.71, and $18497, with interest thereon, aggregating $1,128.04, because of the misuse of receivership moneys as indicated in conclusions 12, 15, and 17, and with liability for costs as per conclusion 26; the findings of fact in respect to the matter excepted to being 182, 183, 188, 192, 199, and 200.</p> <p>3. Appeal by defendants Gilbert and Owen, W. A. and A. J. Bust as executors as aforesaid, and 8. G. and F. A. Moon as personal representatives of D. R. Moon deceased, complaining of the judgment charging them with general liability for costs under conclusion 26, and with liability for $2,834.14 with interest, making $3,536.02, for receivership moneys wrongfully appropriated as held in conclusion 11; the findings excepted to in respect thereto being 159, 161, 163, 164, 168, 170, and 172.</p> <p>4. Appeal by Gilbert, Barber, and the Rusts executors as aforesaid, 'from those parts of the judgment charging them with liability for costs as per conclusion 26, and for $853.80 with interest, making in the aggregate $1,196.68, on account of a wrongful depletion of receivership assets as indicated in conclusion 16, the findings of fact excepted to being 189, 199,. and 200.</p> <p>5. Appeal by Gilbert, Thompson, and the Rusts as executors, from the adjudged liability against them for costs as per conclusion 26, and liability for $8,287.20 and interest thereon, on account of thé illegal disposition of the Brookville plant as indicated in conclusion 7; and $556.50 with interest, for the misappropriation of the proceeds of an .account due from such plant as indicated in conclusion 8; and $155.72 ■with interest, far moneys misappropriated in respect to the Consolidated Electrical Engineering Company as indicated in conclusion 9; and $51.20 with interest, for moneys misappropriated in connection with the Cassadaga Free Association account, as indicated in conclusion 10; and $2,834.14 with interest, for a wrongful dissipation of the receivership assets in respect to- the Bucyrus contract as indicated in conclusion 11; and $127.30 and interest, for wrongful appropriation of receivership assets in respect to the Bigelow Electrical Supply Company account as indicated in conclusion 14; and $369.72 and interest, for misappropriation of receivership assets in respect to the Caspari, "Whittaker & Co. account as per conclusion 18; the aggregate being $13,436, exclusive of costs; the findings of fact excepted to being 72 to 133 inclusive, 135, 136, 138 to 145 inclusive, 147, 148, 153, 154, and 155.</p> <p>6. Appeal by H. H. Hayden, T. F. Frawley, and the Rusts, executors, from the adjudged liability against them for costs as per conclusion 26, and liability,for $23,523.86 and interest, aggregating $29,071.90, on account of moneys wrongfully obtained by them out of the receivership assets as per conclusion 22, the findings of fact in respect thereto excepted to being 113 to 128 inclusive, and 176 to 187 inclusive.</p> <p>7 and 8. Appeals by defendants Gilbert and Owen from the judgment in respect to several matters, and among them their adjudged liability for $182.94 and $113.58, respectively.</p> <p>The form of the notices of appeal, as to whether single or not, was this: the parties, joining, “severally and separately appeal.” The form of the bond as to each appeal, except those numbered 6 and 7, respecting the same feature, was as follows: “The above named appellants, feeling aggrieved thereby, intend to appeal, now therefore we, etc., do hereby, pursuant to the statute in such case made and provided, uU-■dertake that said appellants will pay all damages and costs which may be awarded against them on said appeal, not exceeding the sum of $250, and do also undertake, etc., the said appellants will pay the amount to be directed to be paid by that part of said judgment so appealed from, etc., affirmed,” etc. The other two bonds, as to such feature, though worded somewhat differently, were substantially the same. After the record was filed in this court the respondents moved to dismiss all of the appeals for insufficiency of the bonds in that, while as to each appeal there were several parties appellant, each appealing for his own behalf, there was but one appeal bond. Thereafter, and before such motion was heard, the appellants moved the court for leave to give a new bond curing the defects claimed by respondents to exist in those on file.</p> <p>The cause was first argued and submitted on October 25 and 26, 1902.</p> <p>In support of the motion to dismiss the appeals it was contended, on behalf of the respondents: (1) The appeals should be dismissed because of the insufficiency of the undertakings. There is a separate appeal by each defendant. It is competent for one to separately appeal from a joint judgment, against him and others. Stats. 1898, sec. 3048; In re Bus-combe’s Will, 109 Wis. 186, 195. The fact that different notices of appeal are included in the same instrument does not render the appeals any the less several. Sharon v. Sharon, 68 Cal. 326, 9 Pac. 187, 192. The notices must be given effect according to their terms — according to their plain intent. Johnson v. O., M. & St. P. B. Go. 43 Wis. 431; Olinger v. Biddle, 55 Wis. 621; Wood v. Fish, 63 N. T. 245; Montgomery v. American Central Ins. Go. 106 Wis. 543. An appeal is a purely statutory right. Western U. B. Go. v. Dichson, 30 Wis. 389, 392; State ex rel. Andreius v. Osh-Jcosh, 84 Wis. 548, 556. And statutory regulations with respect to the talcing of an appeal must be strictly complied with. 2 Ency. PI. & Pr. 213. Taking, for instance, the undertaking on behalf of Gilbert, Thompson, and Eust, which is the pattern of all the others, it is void for uncertainty. It does not specify to which of the several appeals contained in the notice it relates. Kelly v. Beachman, 5-Idaho, 521, 51 Pac. 407; Wallace v. McKinlay, 6 Idaho, 95, 53 Pac. 104; Home B. Asso. v. Wilhins, 71 Cal. 626, 12' Pac. 799; In re Ileydenfeldt, 117 Cal. 551, 51 Pac. 543;. Centerville & K. I. D. Go. v. Bachtold, 109 Cal. Ill, 41 Pac. 813 ; Ghamberlain v. Sage, 14 Wis. 193; White v. Appleton, 14 Wis. 190. The undertaking is to pay all costs and damages which may be awarded against “said appellants,” i. e.r those referred to in the notice. The liability of the sureties being strictissimi juris (Drinhwine v. Fan Claire, 83 Wis. 430), they could only be held liable for damages and costs awarded against said appellants jointly. Zone v. De Ona-tivia, 135 Cal. 440, 67 Pae. 685; Wood v. Fish, 63 N. Y. 245. The obligation of the sureties is limited to $250; but the respondents were entitled, under the statute, to undertakings to that amount on each appeal. White v. Appleton, 14 Wis. 190, 192. ■ (2) The appeals should'be dismissed because no notice was given to the defendant corporation. “The adverse party mentioned in the statute is one who has an interest adverse to the reversal of the matter appealed from.” Crotuns v. Forest L. Co. 99 Wis. 103; Rogers v. Shove, 98 Wis. 271; Wheeler*v. Hartshorn, 40 Wis. 83, 96; Frost v. St. Paul B. & I. Co. 57 Minn. 325, 59 N. W. 308; Thompson v. Ellsworth, 1 Barb. Oh. 627; Cotes v. Carroll, 28 How. Pr. 436; Barnes v. Stoughton, 6 Iiun, 254. The recovery in this action is a corporate asset. The corporation is therefore a necessary party to the action. Land, L. & L. Co. v. McIntyre, 100 Wis. 245, 256; Gager v. Paul, 111 Wis. 638, 651. Except where the corporation has transferred its interest in the assets to an assignee, in which event the assignee takes the place of the corporation and becomes an indispen- * sable party. Gores v. Field, 109 Wis. 408, 415. Failure to serve the statutory notice on any adverse party is fatal to the appeal. Munh v. Anderson, 94 Wis. 27; Elliott, App. Proc. § 144; Hamilton v. Blair, 23 Oreg. 64, 31 Pac. 197; Butte Co. v. Boydstun, 68 Cal. 189, 8 Pac. 835; Herriman v. Men-zias, 115 Cal. 16, 44 Pac. 660; Hunderloch v. Dundee M. & T. I. Co. 88 Ind. 139; Curten v. Atkinson, 29 Neb. 612, 46 N. W. 91. As to appeal by corporation whose functions have been suspended by receivership, see Stolze v. Manitowoc T. Co. 100 Wis. 208. That if it might appeal it is necessarily an “adverse party” entitled to notice, see Rogers v. Shove, 98 Wis. 271. (3) The defects are jurisdictional and not subject to correction. An appeal cannot be perfected after Hie lapse of the statutory period. Secs. 2831, 3039, Stats. 1898; Herrick v. Racine W. & D. Co. 43 Wis. 93; Munk v. Anderson, 94 Wis. 27; Elliott, App. Proc. § 128; Hall v. Oilman, 90 Wis. 455. No question is presented bere of the omission to perfect an appeal “by mistake or accident” referred to in see. 3068, Stats. 1898. Tyson v. Tyson, 94 Wis. 225, 232. But this statute does not permit an appeal to be .perfected after tbe lapse of tbe statutoiy period. Drinkwine v. Bau~ Claire, 83 Wis. 429; Thompson v. Thompson, 24 Wis. 517; Shaffer v. Ban Claire, 105 Wis. 239. .</p> <p>For tlie appellants, in opposition to the motion to dismiss, it was argued, among other things, that, the notice of appeal having been given, “any other act necessary to perfect the appeal or make it effectual” may be done under the terms of sec. 3068, Stats. 1898. J ohnson v. N. W. Live Stock Ins. Co. 107 Wis. 337; Bookman v. Ackerman, 109 Wis. 639; Ten-ney v. Madison, 99 Wis. 539 ; Bussell v. Bartlett, 9 Wis. 556; Helden v. Helden, 9 Wis. 557; Smith v. C. & N. W. B. Co. 19 Wis. 89; Ulrich v. Famngton Mfg. Co. 69 Wis. 213; Branger v. Buttrick, 30 Wis. 153; Gilbank v. Stephenson, 30 Wis. 155; Falk v. Goldberg, 45 Wis. 94; Grant v. Connecticut M. L. Ins. Co. 28 Wis. 387; White v. Polleys, 20 Wis. 503. The benefit of this curative statute cannot be restricted to the two years after the entry of judgment (1) because the legislature has not said so, and (2) dúring such two years there is no need of the statute, the right to appeal during that time being absolute. The two years had expired in J ohnson v. N. W. Live Stock Ins. Co. 107 Wis. 337. The undertaking feature of the statute is not a matter of jurisdiction, and the undertaking may be waived. Sec. 3051, Stats. 1898; 1 Ency. PL & Pr. 1000; In re Luscombe’s Will, 109 Wis. 186, 194. The whole provision as to undertakings for costs is void. The legislature has no power to put any such bar between a litigant and his rights in this court. Const, art. I, sec. 9; Id. art. VII, sec. 3; Smythe v. Boswell, 117 Ind. 365, 20' N. E. 263; Hutts v. Martin, 131 Ind. 1, 30 N. E. 698. The statute is repugnant also to> the federal constitution. Amendm. XIV; Williamson v. Liverpool & L. & G. Ins. -do. 105 Red. 31; Yich Wo v. Hopkins, 118 U. S. 356; Mutual F. Ins. Oo. v. Hammond, 106 Ky. 386, 51 S. W. 151; Gulf, 0. & 8. F. B. Oo. v. Filis, 165 U. S. 150.</p> <p>Upon, the merits of the appeals counsel for the appellants other than U. H. Hayden argued: (1) The plaintiffs having alleged actual fraud and conspiracy against each of the appellants, they must prove such allegations or the complaint will he dismissed. Kruschke v. Stefan, 83 Wis. 373; Trues-dell v. Bourke, 145 N. Y. 612; Barnes v. Quigley, 59 PT. Y. 265; Gallup v. Bernd, 132 PT. Y. 377; Truesdell v. Sarles, 104 PL Y. 164; Garter v. Glass, 44 Mich. 154; Mt. Vernon Bank v. Stone, 2 R. I. 129, 57 Am. Dec. 709; 11 Ency. PI. & Pr. 895 and notes. (2) In an action brought for actual fraud relief cannot he had by proving a case of constructive fraud. Fyer v. Potter, 15 How. 42; Piper v. Hoard, 107 PT. Y. 67; 11 Ency. PL & Pr. 890. (3) The evidence is insufficient to warrant a finding of actual fraud. Eraud must he proved by clear and satisfactory evidence legitimately pointing thereto. ,8 Am. & Eng. Ency. of Law, 854; Kerr, Eraud & Mistake, 382; Greer v. Galdwell, 14 Ga. 207; Shaw v. Gilbert, 111 Wis. 169. (4) The mortgage given to Gilbert, Thompson, and Rust on May 18th, 1893, on the Brook-ville plant, was a valid and subsisting obligation, even if on that day the officers of the company had determined upon a cessation of business. The informal assignment of Jan. 19th, was, in any event, sufficient evidence of an agreement by the corporation, to secure these appellants. Valid security can be given officers and directors of an insolvent corporation at any time, if given pursuant to a valid prior agreement that such security should he given. Stout v. Yaeger M. Oo. 13 Fed. 802; Gowen v. P.-G. Oo. 188 Pa. St. 542, 38 Atl. 1075; Paulding v. Ohrome S. Oo. 94 PT. Y. 334; Ooats v. Donnell, 94 PT. Y. 168; Brower v. Brooklyn T. Oo. 21 PT. Y. Supp. 324; 5 Thompson, Corp. 5134; Appeal of Neal, 129 P'a. St. 64, 18 Atl. 564; Young v. Northern Illinois C. & I. Go. 13 Fed. 806; Fourth Nat. Bank v. American M. Go. 11 Sup; Ct. 52, 29 Fed. 611; Chicago T. & T. Go. v. Smith> 158 Ill. 417, 41 N. E. 1076; Glark v. Iselin, ■21 Wall. 360; Goolc v. Tullís, 18 Wall. 332; Burdick v. Jackson, 7 Hun, 488; Baker v. Ilarpsier, 42 Kan. 511, 22 Pac. 415; 3 Thompson, Corp. § 4068. The informal assignment of Jan. 19th, 1893, was good in equity as a contract to convey. Dreutzerv. Lawrence, 58 Wis. 594. (5) The mortgage of May 18th being valid, the court should either have affirmed the sale of the plant by the receiver to himself, Gilbert, and Thompson, or set aside such sale and reinstated the mortgage, compelling the said appellants to account for the rents and profits. Duncomb v. N. Y., II. & N. B. Co. 84 N. T. 198. (6) Appellant Frawley, not being an officer, stockholder, or director of the corporation, cannot be held liable in this action. Sec. 3216, Stats. 1898; Clarke v. Banner & V. P. Co. 50 Wis. 416. (7) The orders of the court directing the receiver to charge to profit and loss certain amounts, to complete the Bucyrus contract, and other similar orders directing him as to his duty, are administrative in their character, are discretionary, and will not be reviewed by this court. 17 Ency. PI. & Pr. 881 and cases; Union Nat. BanJc v. Mills, 103 Wis. 39; Mercantile T. Co. v. Farmers’ L. & T. Co. 81 Fed. 259. (8) The court and judge making the appointment has the exclusive power to determine the compensation to be paid the receiver, and in doing so can and should consider his personal knowledge of the services rendered and responsibilities assumed. Union Nat. Bank v. Mills, 103 Wis. 39; 17 Ency. PL & Pr. 878, note, and cases cited. (9, 10) The expenditures of a receiver, made in good faith, for the purpose of reducing to possession, pursuant to the order appointing him, the assets of the corporation, whether encumbered or unencumbered, are properly paid out of any money in his hands at the time of the final distribution. Tbe marshaling of the funds in the hands of the receiver and apportioning the expenditures incurred by him in the performance of his trust, is for the court and not the receiver. Sec. 3245, Stats. 1898; Speiser v. Merchants’ Ex. Bank, 110 Wis. 506. (11) If the court erred by allowing the receiver’s report as filed, and by allowing to him as credits the expense of collecting hypothecated accounts, such error can be corrected by proper proceeding, and his account surcharged;- but it constitutes no sufficient ground to warrant the court in holding that the receiver, his attorneys, and the appellants holding hypothecations were guilty of fraud or dishonesty in the administration of his receivership. Shavj v. Gilbert, 111 Wis. 189; Schwartz v. Keystone 0. Go. 153 Pa. St. 283, 25 Atl. 1018. (12) A receiver who is authorized by the order of appointment to operate a manufacturing plant is thereby authorized to purchase materials, employ labor, and to complete all uncompleted contracts. Sager Mfg. Go. v. Smith, 60 1ST. Y. Supp. 849, 60 hi. E. 1120. (13) The allowance made to the receiver and his attorneys in this case was made by the judge making the appointment u.pon legal rules and was not excessive for the services rendered. Union Nat. Bank v. Mills, 103 Wis. 39; Henry v. Henry, 103 Ala. 582; In re Little, 62 1ST. Y. Supp. 27, 59 1ST. E. 1125. (14) The allowance of attorneys’ fees is an allowance to the receiver as a disbursement, and such allowance having been paid pursuant to the order of the court, the attorneys receiving it are not liable to the creditors therefor. If improperly allowed, or excessive, such allowance or excess can be charged back to the receiver on a restatement of his account, and he-he compelled to account to the creditor^ for the balance which should be in his hands after all proper credits are allowed him. Henry v. Henry, 103 Ala. 583; Kirleer v. Owings, 98 Eed. 499; Mills v. Boss, 57 1ST. Y. Supp. 680. (15) If a receiver improperly disburses funds belonging to-the estate, without authority of the court, he is liable to the creditors in an action brought by a new receiver,, both personally and on his bond. Mills v. Ross, 57 N. Y. Supp. 680. (16) No part of the proceeds realized from the sale or collection of encumbered assets can be used to pay the expense of the receivership. All such must be paid out of the general assets. Moore v. Lincoln Park Go. 196 Pa. St. 519, 46 Atl. 857; Lane v. Washington H. Go. 190 Pa. St. 230; Speiser v. Merchants’ Ex. Bank, 110 Wis. 506. (17) The creditors of the corporation had a lawful right to file their claim for the full amount, without regard to the security by them held or the amount collected thereon, and to-receive their proportion of 'any dividends declared, based on the full amount of their claim. Ghemical Nat. Bank v~ Armstrong, 59 Fed. 372, and cases; In re Simpson, 55 N. Y. Supp. 697; People v. Remington, 121 N. Y. 328; In re Bates, 118 Ill. 524; Citizens’ Bank v. Patterson, 78 Ky. 291; Brown v. Merchant’s & P. Nat. Bank, 79 N. O. 244;. Kellogg v. Miller, 22 Oreg. 406; Miller’s Estate, 82 Pa. St. 113; Third Nat. Bank v. Ilaug, 82 Mich. 607. (18) When .objections are made to a receiver’s account it is proper to order a reference to' a master, to- hear evidence and report on their correctness. 17 Am. & Eng. Eney. PI. & Pr. 837. (19) A master’s report on a receiver’s account does not require confirmation, and does not admit, therefore, of exceptions. 17 Ency. PI. & Pr. 839; Cowdrey v. Railroad Go. 6 Fed. Cas. No. 3293. (20) Where the order of reference does not require the referee to report to the court the facts found, he has no authority to report them, and if he does there is nothing before the court on which to base exceptions. Royal v. Baer, 17 Ind. 332. (21) The court erred in consolidating the actions and removing as plaintiff the only judgment creditor of the corporation. None but judgment creditors can maintain such an action. Hinckley v. Pjister, 83 Wis. 64. (22) The court erred in vacating the administrative order which fixed the compensation of the receiver and his attorneys. Such order was exclusively under the control of the judge who administered the trust. Mercantile T. Go. v. Farmers L. & T. Go. 81 Fed. 259; Union Nat. Bank v. Millsj 103 Wis. 39; Olson v. State Bank, 72 Minn. 320, 75 N. W. 378. (23) D. R. Moon was not shown to he an officer or director of the corporation and sustained no fiduciary relation to it or its creditors, and this cause of action for fraud and conspiracy abated with his death. John V. Far-well Go. v. Wolf, 96 Wis. 10; Lane v. Frawley, 102 Wis. 373. (24) So, also, the cause of action against R. E. Rust, in so •far as the same is based on fraud, conspiracy, or conversion, abated with his death. (25) The demurrer ore tenus of all of the appellants should have been sustained as the complaint did not allege that the plaintiffs, or any of them, were judgment creditors of the insolvent corporation, or that an execution had been returned against said corporation unsatisfied. Ilinclsley v. Pfister, 83 Wis. 64. (26) The plaintiffs should not be permitted to recover in this action on account of' their laches in failing to appear and file exceptions to the receiver’s final account as filed, and by reason of their failure to object to the manner in which the court was administering the-trust during the receivership. Twin-Lick 0. Go. v. Marbury? '91 U. S. 587; Marsh v. Whitfore, 83 U. S. 482; Follansbe v. Kilbreth, 17 Ill. 522; Dillingham v. Moran, 81 Fed. 760. (27") The test of a receiver’s action in incurring expense, without the express order of the court, is “Would a man of ordinary business capacity, and prudence, in the conduct of his own business, be likely to incur the same expense?” Schiuarte v. Keystone 0. Go. 153 Pa. St. 253. (28) This-court will consider only the competent evidence preserved in the record, and will not consider the unidentified scraps of paper, memoranda, telegrams, etc., received by the trial court. Lace v. Schoenhalss, 93 Wis. 665; Smith v. Perry,, 52 Neb. 738, 73 N. W. 282.</p> <p>it was argued, among; •other things: (1) There being no controverted questions of fact, and the suit being in equity, the examination in this ■court must be, as to the matters appealed from-, absolutely ■de novo; and no weight whatever is to be allowed to anything found or decided below because the trial court so found ■or decided it. Dietz v. Neenah, 91 Wis. 422, 426; Gandee v. W. U. Tel. Go. 34 Wis. 471, 483; Milwaukee Co. v. Pabst, 70 Wis. 352, 360; Wheelock v. Tanner, 39 N. Y. 481, 486; Farmers’ Bank v. Vail, 21 N. Y. 481, 486; Southard v. Behrns, 52 Neb. 486, 72 N. W. 860, 861; Pratt v. Foote, D N. Y. 463, 465; U. S. v. Pugh, 99 U. S. 265, 270; Draper ■v. Stouvenel, 38 N. Y. 219, 223; Fellows v. Northrup, 39 N. Y. 117, 119, 120; Mason v. Lord, 40 N. Y. 476, 484. ■(2) Fraud must be proved by clear and satisfactory evidence. 1 Jones, Ev. § 190; Shaw v. Gilbert, 111 Wis. 165, 188, 189; Lavassar v. Washburne, 50 Wis. 200, 201; 14 Am. & Eng. Ency. of Law (2d ed.) 203. (3) No cause of •action arises from a mere showing that a conspiracy has been formed; there must be a showing of acts which have damaged the plaintiff. Smith v. Nippert, 76 Wis. 86, 88; 6 Am. & Eng. Ency. of Law (2d ed.) 873-875. (4) Plaintiffs having made their case upon allegations of actual fraud, if that is not proved, they cannot recover upon any other theory of liability in this action; and defendants are entitled to judgment of dismissal herein. Kruschke v. Stefan, 83 Wis. 373, '383; Truesdell v. Sarles, 104 N. Y. 164, 167; Byre v. Potter, 15 How. 42, 56; Piper v. Hoard, 107 N. Y. 67, 72; Miller v. King, 88 Hun, 181, 182. (5) Appellant Frawley, not being an officer or stockholder of the corporation, could not be made a defendant in this action; and this being a ■statutory action, this objection is a “question of jurisdiction.” Clarke v. Banner & V. P. Go. 50 Wis. 416, 418; •secs. 3216-3228, Stats. 1898. (6) Orders which are purely •administrative, and which involve only questions of business judgment or sagacity — of business policy, — will not be disturbed on appeal, and cannot be in any way affected by the fact that they are improvident or prove unprofitable — no-abuse of discretion being made to appear. Mercantile T. Co. v. .Farmers'’ L. & T. Co. 81 Eed. 254-259; Weeks v. Weeks, 106 N. Y. 626; Wabash, St. L. & P. B. Co. v. Central T. Co. 22 Eed. 269, where Justice Bbeweb directed receiver to carry out a bad bargain, made under an order. (7) It is the duty of the receiver, under the court’s direction, to reduce to possession, and realize on, all assets, encumbered as well as unencumbered, and to pay the expenses-of so doing out of the general fund in his hands. All the-money which comes to the receiver’s hands is a single fund,, which is all equally subject to any payments which the court,, or a statute, may order to be made from it. In re Assignment’ of Riddell, 93 Wis. 564, 566; secs. 3217, 3245, Stats. 1898. (8) The amended complaint was insufficient because it failed' to allege that any plaintiff Was a judgment creditor. Hinck-ley v. Pfister, 83 Wis. 64, 82; sec. 3216, Stats. 1898. (9)-The consolidation of two or more suits is within the sound discretion of the court, and leaves each suit entirely separate’ and distinct, and operates only as a mere carrying on together of suits supposed to involve identical issues, in order-to expedite the hearing and diminish expense. Toledo, St. L. & K. C. B. Co. v. Continental T. Co. 95 Eed. 497, 506;. Hinckley v, Pfister, 83 Wis. 64, 75, 83; 4 Ency. PI. & Pr. 695. (10) An order directing the receiver to’ pay counsel or himself a certain sum of money for services, or a sum to-any other person, or to deliver property to any person, is a final judgment, and can be re-examined only by an appeal in the regular course or an application for relief within the-statutory one year. In re Commonwealth F. Ins. Co. 32' Hun, 78; 15 Ency. PI. & Pr. 317; Trustees v. Qreenough,. 105 TJ. S. 527; Stuart v. Boulware, 133 U. S. 78; Hovey v.. McDonald, 109 U. S. 150; Blossom v. M. & C. B. Co. 1 Wall. 655; Central B. & B. Co. v. Pettus, 113 U. S. 121;. Williams v. Morgan, 111 U. S. 684; Hinckley v. G. G. & ■ S. B. Co. 94 U. S. 467; Sage v. Railroad Go. 96 U. S. 712; Ex parte Farmers’ L. & T. Go. 129 U. S. 206; Burnham v. Bowen, 111 U. S. 776; Fosdiclc v. Shall, 99 U. S. 235; For gay v. Oonrad, 6 How. 201; Simms v. Simms, 20 Sup. Ot. 58, 61; Merchants’ Bank v. Grysler, 67 Fed. 388. In each, of the foregoing, irrespective of form or phraseology, the supreme court, or circuit court of appeals, looking to the substance, found a final judgment or decree; for by statute Ihe appeal to those courts is limited to such. Drake v. Koch-ersperger, 170 U. S. 303; Butterfield v. TJsher, 91 U. S. 246; Speiser v. Merchants’ Fx. Bank, 110 Wis. 506; Union Nat. Bank v. Mills, 103 Wis. 39; Leadville G. Go. v. Mc-■Greery, 141 U. S. 475; Central T. Go. v. Grant, 135 U. S. 207; Weeks v. Weeks, 106 N. T. 626; Mercantile T. Go. v. Farmers’ L. & T. Go. 81 Fed. 254. Being final judgments .•and not being appealed from within two years, nor opened within the statutory one year, they could be attacked, if at .all, only by a direct suit in equity to set them aside for fraud. .Farwell v. Great Western T. Go. 161 Ill. 522, 44 N. E. 891. But this is not a suit of that character. (11) On no possible •theory can the judgment stand against either Hayden or Frawley, being solely for money, paid them by the receiver ■to discharge his personal indebtedness to them for legal services rendered to him. Neither the court nor the litigants employ counsel for the receiver. He does this personally, be-comes personally bound as an individual for the services, and the court allows him sums as reimbursement for such expenses incurred and paid by him. Stuart v. Boulware, 133 U. S. 78; Gluck & Becker, Receivers, 361, note> citing Walsh v. Raymond, 58 Conn. 251; Id. 355, citing Tennessee v. F. & K. R. Go. 4 Baxt. (Tenn.) 92; Florida G. B. Go. ■v. Bisbee, 18 Fla. 60; Maxwell v. Bank of New Richmond, 101 Wis. 286, 291. (12) Complainants are barred by laches'. Gutter v. Iowa W. Go. 96 Fed. 777; Freeman, Judgments, ■see. 142; 15 Ency. PI. & Pr. 347, notes 4, 5; Galena & 8. W. B. Go. v. Ennor, 116 Ill. 55. (13) The allowance to tlie receiver for counsel fees, and for Ms own services, in lump ■sums, is tire proper method. Compensation for the service of counsel is never a matter of an aggregate of specific items, .and hears no analogy to an itemized hill for merchandise. ■Greeley v. Prov. S. Bank, 103 Mo. 212, 17 Ency. PL & Pr. ■'843; Perry-Mason 8. Go. v. Sykes, 72 Miss. 390, 28 L. R. A. 277; Stuart v. Boulware, 133 U. S. 78; In re Louisiana 8. B. & 8. D. Go. 40 La. Ann. 514, 4 So-. 301; Boston 8. D. ■& T. Go. v. Chamberlain, 66 Eed. 847, 848; Trustees v. ■Gi'eenough, 105 U. S. 527. Counsel and attorney’s fees do not consist of items at all. Tracy v. Stearns, 61 ITow. Pr. 265; Sanford v. Buckman, 24 How. Pr. 521; Eliot v. Law-ton, 7 Allen, 274; Wilson v. M. S N. W. B. Go. 31 Minn. 481, 18 N. W. 291, 292. Nor need an attorney to make ■charges in his books; if he fails to do so, the court fixes the compensation on some reasonable general rule; and may fix it hv annual retainer for general services. Hughes v. Dundee M. & T. I. Go. 21 Eed. 169. And if charges are made, they are immaterial, for the court fixes the compensation largely upon its own knowledge. Union Nat. Bank v. Mills, 103 Wis. 39; Harrison v. Perea, 168 U. S. 311; Olson v. State Bank, 72 Minn. 320; 17 Ency. PL & Pr. 843. And a judge may carry this personal knowledge with him from the circuit and use it in review in the circuit court of appeals. Boston 8. D. & T. Go. v. Chamberlain, 66 Eed. 847, 848. And the court may fix such compensation entirely upon personal knowledge, without hearing any evidence. Fowler v. Equitable T. Go. 141 U. S. 411; 8peiser v. Merchants’ Ex. Bank, 110 Wis. 506, 523. (14) The compensation allowed the receiver in the court’s orders for his own services, and for counsel fees, was no more than was reasonable, and was well inside the authorities. Schwartz v. Keystone O. Co. 153 Pa. St. 283, 25 Atl. 1018; Trustees v. Greenough, 105 U. S. 527; Cowdrey v. G., E. & H. B. Co. 93 U. S. 352, 354; Union Nat. Bank v. Mills, 103 U. S. 39. (15) There was no impropriety in Hayden or Erawley-conducting litigation for creditors of the corporation, secured by undisputed hypothecations made by the corporation, the receiver not being a parly to such litigation, and having an interest in the enforcement of such claims, because entitled to the excess, if any, of the security, Hayden being paid for such services in full by the creditors, without any claim upon the receiver therefor. 3 Am, & Eng. Ency. of Law (2d ed.) 297, 298; Shaw v. Bill, 95 U. S. 10, 14. (16) Valid orders of the court directing its receiver, on its application, may be made without notice, and in this country it is the common practice so to make them. Weeks v. Weeks, 106 N. Y. 626. If notice were necessary, it would be presumed, the contrary not expressly appearing upon the record. Falkner v. Guild, 10 Wis. 563, 573. There is no rule of law or practice forbidding so making such orders without notice. Merchants’ Bank v. Crysler, 67 Eed. 388. At the worst, if objectionable, it would be only irregular or erroneous. 'Merchants’ Bank v. Crysler, 67 Eed. 388. And such an objection can be reached only by appeal from the judgment. 11 Am. & Eng. Ency. of Law, 843, 844; Jackson v. Astor, Pin. 137, 158; Tollman v. McCarty, 11 Wis. 401, 406, 407; Falkner v. Guild, 10 Wis. 563, 571; Amory v. Amory, 26 Wis. 152, 160; Gale v. Best, 20 Wis. 44, 47; Arnold v. Booth, 14 Wis. 195. (18) Ho claim lay against Rust for what he received for allowances for counsel fees, because he paid it over under orders of the court; a subsequent reversal or vacation of the order would be immaterial, and would not make the receiver liable. The party objecting must get a stay of the order complained of until it can be reviewed. If he neglects to do this, and the receiver pays, the latter is protected. Florida C. B. Co. v. Bisbee, 18 Ela. 60; Gluck & Becker, Receivers, 356; Maxwell v. Bank of New Bichmond, 101 Wis. 286, 288; Palmer v. Truby, 136 Pa. St. 656, 20 Atl. 516; In re Home P. 8. F. Asso. 129 N. Y. 288, 15 N. Y. Supp. 211, quoted 20 Am. & Eng. Eney. of Law (1st ed.) 119, col. 1. (23) An attack upon a judgment or order for fraud in its making must show that by some trick, device, or otherwise, the court was induced to do something different from what it intended to do, and which it would not have done except for such fraud. Fisher v. Simon, 67 Eed. 387; U. 8. ex rel. Fisher v. Williams, 67 Eed. 384; Fisher v: Hepburn,. 48 N. Y. 41, 53. (26) A chancellor will decline to act, when what is prayed for amounts substantially to his sitting in review upon another chancellor. Fisher v. Hepburn, 48 N. Y. 48, 53; Win-ship v. Piits, 3 Paige, 259 ; Asfor v. Ward, 3 Edw. Oh. 391; Greenwich Bank v. Loomis, 2- Sandf. Oh. 76; In re Livingstone, 34 N. Y. 577; Arnold v. Oliver, 64 How. Pr. 452; 'Marvin v. Weider, 31 Neb. 774, 48 N. W. 825; Oglesby v. Attrill, 14 Eed. 214. (27) Fraud that will justify the reexamination of a judgment or order must be some fraud whereby complainant’s antagonist in some way prevented him from having an opportunity of obtaining the relief to which’ he was entitled. Brooks v. O'Hara, 8 Eed. 533; U. 8. v. Throckmorton, 98 U. S. 65; Greene v. Greene, 2 Gray, 361. (28) The original written assignment-, upon the Brookville plant was an equitable mortgage. Bridgeport H. & I. Go. v. Meader, 72 Eed. 115, 118. The mortgage related back under the “renewal doctrine.” Ohattanooga Nat. Bank v. Borne I. Co. 102 Eed. 755, 757, 758. (29) This court tries the case on the competent evidence alone. 2 Ency. PI. & Pr. 474; Lace v. 8choenhalss, 93 Wis. 665; Smith v. Perry, 52 Neb. 738, 73 N. W. 282, 284.</p> <p>For the respondents, on the merits, it was contended, inter alia: (1) There was no error in the order of March 18, 1898. The statute fully authorized the consolidation of the actions. Sec. 2792, Stats. 1898. The parties had in substance consented. Eau Claire F. & 8. Co. v>. Lay cock, 92 Wis. 81. No one was prejudiced thereby. Lauterbach v. Netzo, 111 Wis. 322. The court had power to strike out Barber and Hayden as plaintiffs. Such power is expressly conferred by our statute, is inherent in courts of equity, and has been frequently exercised. Sec. 2830, Stats. 1898; 1 Ency. PI. & Pr. 466; Pomeroy, Remedies, sec. 247; Day v. Buckingham, 87 Wis. 215; Hewett v. Adams, 50 Me. 271; Hall v. Laver, 3 Younge & 0. 191; Lloyd v. Malceam, 6 Yes. Jr. 145; Durand v. Hutchinson, 2. Dickens, 456. It is well settled that even a sole plaintiff may be removed and persons having a beneficial interest substituted. State ex rel. Milwaukee v. Ludwig, 106 Wis. 226; Linden L. Co. v. Milwaukee E. B. & L. Co. 107 Wis. 493, 502; Wilson v. Welch, 157 Mass. 77; Hamlin v. Baxter, 20 Kan. 134; Price v. Wiley, 19 Tex. 142; Hubler v. Pullen, 9 Lid. 273; Johnson v. Tail, 14 N. J. Eq. 423; Pool v. Morris, 29 Ga. 374; Jennings v. Springs, 1 Bailey, Eq. (S. O.) 181; Winkelman v. Kiser, 27 Ill. 21; Silber L. Co. v. Silber, L. R. 12 Oh. Div. 717; Plunket v. Joice, 2 Sch. & Lef. 159. The objection that a plaintiff has not reduced his claim to judgment and attempted to collect under execution, is not jurisdictional, but merely goes to the adequacy of the remedy at law. Stale ex rel. Fowler v. Green Lake Co. 98 Wis. 143, 152. When the order in question was made, the present plaintiffs had no remedy at law, since they had been required to come into the Hayden action, and restrained from proceeding elsewhere. The same practice pursued in this case was sanctioned by this court in Gager v. Marsden, 101 Wis. 598; Wechselberg v. Michelson, 105 Wis. 452. By changing their position in the litigation the original plaintiffs were in no way aggrieved. Day v. Buckingham, 87 Wis. 215. Each and every of the defendants, including Hayden, answered to the merits, without any suggestion of the adequacy of a legal remedy, or of the incompetency of the plaintiffs to maintain the action, and hence effectually waived any objection wbieb might have been made. There was no •error in the provisions of the order of March 18 affecting the interlocutory orders made prior to December 30, 1897. The power of the court to modify or vacate interlocutory orders made at any time before judgment is expressly given by our statute, and is recognized by all the authorities. See. 2814, Stats. 1898. Federal decisions, cited hy appellants, holding that certain orders would be considered final judgments within the meaning of the appeal statutes are exceptional, and the doctrine of them has been narrowed by the more recent decisions. McGourkey v. T. & O. C. B. Go. 146 U. S. 536; Latía v. KiTbourn, 150 U. S. 524. None of them presented the question whether ex parte orders for the payment of money by the receiver, in the course of the administration ■proceedings, would he appealable. , Even were such orders ap-pealable, they are none the less orders, which may be modified or set aside pendente lite. Gile v. Colby, 92 Wis. 619; Pleasants v. S. B. Go. 93 Fed. 93. There was no error in that part of the order of March 18 which removed the receiver. The removal by the court of its own officer rests in its sound discretion, and its action is not subject to review. Smith, Receiverships, 565; Gluck & Becker, Receivers (1st ed.) sec. 114, p.- 489. That he was an officer of the corporation should have precluded his appointment in the first place, and was sufficient ground for his removal. McCullough v. Merchants' L. & T. Go. 29 N. J. Eq. 217; People v. Third Ave. 8. Bank, 50 How. Pr. 22; Att’y Gen. v. Bank of Columbia, 1 Paige, 511; Bank of Monroe v. Sohermer-horn, 1 Clarke, Ch. 366; Atkins v. W., St. L. & P. B. Co. 29 Eed. 161, 173; Wood v. Oregon B. Go. 55 Eed. 901; In re Golvin, 3 Md. Ch. 278, 302. That he himself had interests adverse to the general creditors, as the holder of preferred claims, should have precluded his appointment, arid demanded his removal. 2 Beach, Mod. Eq. Pr. § 749; McCullough v. Merchants' L. & T. Go. 29 N. J. Eq. 217; Schwartz v. Keystone 0. Go. 153 Pa. St. 283, 25 Atl. 1018. That, as shown by the records, he had not stood impartially between the unpreferred and the secured creditors, but had aided the latter at the expense of the former to secure the benefit of their securities, demanded his removal. Speiser v. Merchants’ Ex. Bank, 110 Wis. 506. That his own conduct was to be investigated was sufficient cause for his removal. Gluck & Becker, Receivers (1st ed.) sec. 116, p. 496; Beach, Receivers, sec. *796; McGullough v. Merchants’ L. & T. Co. 29 N. J. Eq. 217. (2) There was no error in overruling the demurrer of the executors of D. R. Moon, deceased. By Moon’s answer on the merits all grounds of his demurrer were waived except sufficiency of facts and jurisdiction of court. Sec. 2654, Stats. 1898; Davis B. L. Go v. Home Ins. Go. 95 Wis. 542, 547; Jones v. Foster, 67 Wis. 296; Monson v. Lathrop, 96 Wis. 386; Phillips v. Carver, 99 Wis. 561, 572. But one cause of action is stated; hence there was no misjoinder. Gager v. Marsden, 101 Wis. 598; South Bend O. P. Go. v. George G. Qribb Go. 105 Wis. 443; Zinc O. Go. v. First Nat. Bank, 103 Wis. 125, 139; Foster v. Posson, 105 Wis. 99; Killen v. Barnes, 106 Wis. 546; Adkins v. Loucks? 107 Wis. 587, 594; Bgaard v. Dahlke, 109 Wis. 366; Ood-dingion v. Ganaday> 157 Ind. 243, 61 N. E. 567, 573. That directors, officers, or stockholders will be held liable for the fraudulent appropriation to themselves, or the turning over to others, of the assets of a corporation, when it is insolvent or its officers know or have reason to know that suspension is impending, is well settled. Ford v. Plankinton Bank, 87 Wis. 363; Hinz v. Van Dusen, 96 Wis. 503; Bowe v. Leuthold, 101 Wis. 242; Slack v. N. W. Nat. Bank, 103 Wis. 57; Glen-wood Mfg. Go. v. Syme, 109 Wis. 355, 361. With stronger reason, the appropriation to themselves, or the payment to others, after suspension, of the property of the corporation, to secure their individual obligations, or otherwise, to the prejudice of the general creditors, will render officers, directors, and stockholders liable. All liabilities of officers, directors, and stockholders, of every nature, so far as they run to the corporation, its creditors, or to any class thereof, and whether based on negligence, wilful wrong-doing, either individually or conspiring among themselves or with others, nr even if based upon a penal statute, must be enforced in this exclusive suit. Murlbut v. Marshall, 62 Wis. 590; Bal-lin v. Loeb, 78 Wis. 404; Ford v. Plankinton Bank, 87 Wis. 363; Ballin v. Merchants'' Ex. Bank, 89 Wis. 278; South Bend O. P. Go. v. George G. Gribb Go. 97 Wis. 230; Gores v. Bay, 99 Wis. 276; Gager v. Bank of Edgerton, 101 Wis. 593, 598; Foster v. Posson, 105 Wis. 99, 102; Ounningham v. Wechselberg, 105 Wis. 359; Eillen v. Barnes, 106 Wis. 546; Gores v. Field, 109 Wis. 408. Irrespective of the statutes relating to wind-up proceedings, this court has frequently granted relief against conspirators, in actions in equity, and has declared joint and several judgments against them for the damages sustained. Zinc G. Go. v. First Nat. Bank, 103 Wis. 125; Spaulding v. North Milwmkee T. 8. Go. 106 Wis. 481, 498; Franey v. Warner, 96 Wis. 222; Fountain S. P. Bo. v. Roberts, 92 Wis. 345. When, as here, the tortious act benefited the estate of the wrongdoer, the cause of action survived at the common law, always where the suit was in equity, and the same where the suit was at law, unless the form of the action required the plea of not guilty. 21 Ency. PI. & Pr. 325; Allen v. Frawley, 106 Wis. 638; Gheney v. Gleason, 125 Mass. 166; U. S. v. Daniel’s Ex’rs, 6 How. 13; Mead v. Porter, 70 Eed. 498; Griswold v. Milton, 87 Fed. 256; People v. Gibbs, 9 Wend. 30; Byxbie v. Wood, 24 N. Y. 607, 609, 612; Payne’s Appeal, 65 Conn. 397, 32 Atl. 949; Mench v. Metzer, 6 S. & E. 272, 273; Penrod v. Morrison, 2 Penr. & W. 126, 130; Mayden v. Yreeland, 37 N. J. Law, 372, 395; Shafer v. Grimes, 23 Iowa, 550; Baker v. Grandall, 78 Mo. 584, 47 Am. Eep. 126, 129; Lee’s Adm’r v. Mill, 87 Va. 497, 12 S. E. 1052; Garth v. Cotton, 1 Yes. 524, 3 Atk. 751; Pulteney v. Warren, 6 Ves. Jr. 73; Peeh v. Twrquand, L. R. 2 Eng. & Ir. App. 325; Phillips v. Homfray, L. R. 24 OR. Div. 439. The rule prevails whether or not any fiduciary relation exists. Head v. Porter, 70 Fed. 498. Where one of several defendants jointly proceeded against dies, the action survives against his representatives to the full amount of the plaintiff’s property loss, irrespective of the portion which the defendant had received. Cheney v. Gleason, 125 Mass, 166. In cases where the wrongdoer was benefited, even the early doctrine of the common law that the action would abate where its form was such as to require the plea of not guilty, was reluctantly followed. Hambley v. Trott, 1 Cowp. 375; Keite v. Boyd,, 16 S. & R. 300. And has been since-modified by extending the survivability of the action to all cases where the wrongdoer’s estate was benefited, irrespective-of the form of the action. Phillips v. Homfray, L. R. 24 Ch. Div. 439, 454; Balcer v. Crandall, 78 Mo. 584, 47 Am. Rep. 126; Booth’s Adm’rs v. Northrup, 27 Conn. 325; Lee’s Adm’r v. Hill, 87 Va. 497, 12 S. E. 1052; Martin’s Adm’r v. B. & O. B. Co. 151 U. S. 673; Schreiber v. Sharpless, 110 U. S. 76. The collusive obtaining of the property of the corporation by Moon and his co-pledgees would create, by legal implication, a promise to return the same to the corporation, or to pay to the corporation the value thereof, rendering him and them jointly liable for the value thereof as upon implied contract. Dow v. Deissner, 105 Wis. 385, and cases cited.. "Wherever such legal implication may arise,'the action will not abate, whatever its form. For another reason, the cause of action against Moon should be held to survive his death. The receiver Rust occupied a fiduciary relation toward the corporation whose funds were misappropriated. Moon was a stockholder colluding with his co-pledgees who were stockholders, and with the receiver. He thereby assumed a similar relation toward the corporation. The cause of action would beheld to survive his death by reason of his fiduciary relation* 21 Ency. PL & Pr. 358; Kitten v. Barnes, 106 Wis. 546, 563; Wineburgh v. U. S. 8. & Sí. B. Go. 173 Mass. 60; Warren v. Para B. S. Co. 166 Mass. 97; Concha v. Murrieta, L. B. 40 Cb. Div. 543; Bathyany v. Watford, L. B. 36 Ob. Div. 269; Btebbins v. Palmer, 1 Pick. 71. (3) As to tbe demurrer ore tenus of tbe defendant Prawley, tbe enforcement of tbe liabilities charged against tbe other defendants requires bis presence, be having participated in tbe unlawful acts upon which their liabilities are based. If bis liability cannot be worked out herein, and if, as is apparently conceded, theirs may be, it simply results that tbe receiver or tbe officer or tbe stockholder who has unlawfully misappropriated tbe assets of tbe corporation must be prosecuted in tbe wind-up suit, while others, who have acted in collusion with tbe receiver or tbe officer or tbe stockholder, must be prosecuted in a separate suit, even though all are parties to one fraudulent scheme to accomplish tbe misappropriation, and those who receive tbe benefit are sought to be charged as trustees, with tbe defaulting officers, for tbe benefits they have received. Our statutes and tbe decisions of this court are clearly against any such unreasonable proposition. Sec. 3237, Stats. 1898; Hurl-hut v. Marshall, 62 Wis. 590, 606; Hurlbut v. Tayler, 62 Wis. 607; Baltin v. Loeb, 78 Wis. 404; Ford v. Planlcinton Bank, 87 Wis. 363; South Bend C. P. Co. v. George C. Cribb Co. 97 Wis. 230; Gager v. Marsclen, 101 Wis. 598; 8oulh Bend C. P. Co. v. George C. Cribb Co. 105 Wis. 443; Gager v. Paul, 111 Wis. 638. Where equity may properly assume jurisdiction over a trustee, to bold him to account for bis wrongful acts, it will, in tbe same suit, assume jurisdiction and grant relief as against all those in collusion with him or to whom be may have transferred assets in bis bands. 15 Ency. PI. & P'r. 271; 2 Oook, Corp. § 656; Peabody v. Flint, 6 Allen, 52, 57; Byan v. L., A. & N. B. Co. 21 Kan. 365; Salomons v. Laing, 12 Beav. 377. Where a trustee — and that tbe officers or receiver of a suspended corporation are trustees will not be questioned — diverts the assets of a corporation, all are jointly liable to an accounting in equity therefor, and will be held jointly liable for the fruits of the fraud, irrespective of the amount realized by each. Zinc 0. Go. v. First Nat. Bank, 103 Wis. 125, 135; Spaulding v. North Milwaukee T. S. Go. 106 Wis. 481, 498; Franey v. Warner, 96 Wis. 222; Fountain S. P. Go. v. Roberts, 92 Wis. 345. Under a statute like our sec. 3216, providing for the sequestration of the assets of an insolvent corporation, that “sequestration” necessarily involves the making of parties to the action, with the corporation, all persons who have in their possession any corporate assets, and that notwithstanding the joinder of such persons and the assertion of liabilities against them, the complaint will be deemed to state but one cause of action. Proctor v. Sidney S., B. & F. Go. 40 N. T. Supp. 454. (4) There was no error in the judgment against Gilbert, Thompson, and the executors of Rust for the proceeds of the sale to them of the Brookville plant. The conclusion of the,court that the giving of the mortgage on the plant May 18, 1893, to the three officers and' directors named, as security to them for an endorsement theretofore made of the paper of the corporation, the corporation being at the time of the giving of the mortgage, to the knowledge of the officers, hopelessly insolvent, and the closing of its business having already been determined upon, constituted an unlawful preference, is well sustained by the authorities. Hinz v. Van Dusen, 95 Wis. 503; Ford v. Plankinton Bank, 87 Wis. 363; Barth v. Koeiting, 99 Wis. 242; Bowe v. Leuthold, 101 Wis. 242; Slack v. N. W. Nat. Bank, 103 Wis. 57; Qlenwood Mfg. Go. v. Syme, 109 Wis. 355 ;■ Swift & Co. v. Dyer-V. Go. 28 Ind. App. 1, 62 N. E. 70; Bosivorth v. Jacksonville Nat. Bank, 64 Eed. 615; Lippincott v. Shaw G. Go. 25 Fed. 577; Montgomery v. Phillips, 53 N. J. Eq. 203, 31 Atl. 622; Savage v. Miller, 56 N. J. Eq. 432, 39 Atl. 665; Lowry B. Go. v. Empire L. Go. 91 Ga. 624, 17 S. E. 968; Atlas T. Go. v. Macon H. Go. 101 Ga. 391, 29 S. E. 27; Tillson v. Downing, 45 Neb. 549, 63 N. W. 836; Slough v. Ponca M. Go. 54 Neb. 500, 74 N. W. 868; National W. P. Go. v. Columbia Nat. Bank, 63 Neb. 234, 88 N. W. 481; Reynolds v. Smith, 60 Neb. 197, 82 N. W. 627; W. P. Noble M. Go. v. Mt. Pleasant E. G. Inst. 12 Utffii, 213, 42 Pac. 869; Gottlieb v. Miller, 154 HI. 44, 39 N. E. 992; Goodyear R. Go. v. George D. Scott Go. 96 Ala. 439, 11 So. 370; U. S. Rubber Go. v. American 0. L. Go. 96 Eed. 891; 2 Cook, Corp. § 693. Tbe claim that sucb preference was given in pursuance of tbe assignment of Jan. 18, 1893, and that tbe assignment was given at a time and under circumstances wben tbe corporation might lawfully prefer its officers, is without merit. Tbe assignment was not witnessed, and was not sealed with tbe corporate seal. It was a nullity, and conferred no rights whatever. Sec. 2216, Stats. 1898; Rockwell v. Elkhorn Bank, 13 Wis. 653, 657; Galloway v. Hamilton, 68 Wis. 651; Marvin v. \Anderson, 111 Wis. 387, 392; 4 Thompson, Corp. § 5060; 'Angelí & Ames, Corp. § 291; 2 Morawetz, Corp. (2d ed.) § 582; Allen v. Brown, 6 Kan. App. 704, 50 Pac. 505; Shropshire v. Behrens, 77 Tex. 275, 13 S. W. 1043; Mott v. Danville Seminary, 129 HI. 403, 21 N. E. 927, 929; Dan-ville Seminary v. Mott, 136 Ill. 289, 28 N. E. 54, 55; Washington & P. T. Go. v. Cullen, 8 Serg. & R. 517; Wheelock v. Moulton, 15 Vt. 519; Koehler v. Black R. F. I. Go. 2 Black, 715, 717; Dobbins v. Etowah Mfg. Go. 75 Ga. 238; Beatty v. Marine Ins. Co. 2 Johns. 109; Williams v. O. & H. R. Go. 5 Eng. L. & Eq. 497, 503. Tbe assignment was made by tbe president and secretary as officers and directors of tbe corporation, to themselves personally. Sucb a deed is, on its face, void even where tbe statutory requisites of execution have been complied with. Cook v. Berlin W. M. Go. 43 Wis. 437; Haywood v. Lincoln, L. Go. 64 Wis. 639; GlenwoodMfg. Go. v. Syme, 109 Wis. 355; Swift & Go. v. Dyer-V. Go. 28 Ind. 'App. 1, 62 N. E. 70. Sucb a conveyance could only be jus-tilled, if at all, by the clearest evidence of special authority given by the corporation to the officers so to do, independently of their votes or influence, and the onus of showing such authority would rest upon the officers claiming under the assignment. Ludinglon v. Palkon, 111 Wis. 208; Swift & Go. v. Dyer-V. Go. 28 Ind. App. 1, 62 N. E. 70; Pitman v. El-more, 93 Mo. App. 592, 61 S. W. 946; Finch Mfg. Go. v. Stirling Go. 187 Pa. St. 596, 41 Atl. 294. To say that the assignment, though not enforcible, should operate as a promise to give security, is to say that the assignment is not a void thing, as the courts hold, but is valid as an executory contract. Grant v. Minneapolis B. Go. 68 Minn. 86, 70 N. W. 868; Gole v. Dealham, 13 Iowa, 551. Under the authorities, it would add nothing to the legality of the mortgage of May 18, even if it were given in execution of an agreement made prior to the time when the corporation became insolvent, at least unless the agreement were such that it would be specifically enforced. Gopeland v. Barnes, 147 Mass. 388; In re Jaclcson I. Mfg. Go. Fed. Gas. No. 7153; Bank of Leavenworth v. Hunt, 11 Wall. 394; In re Thomas Wood, 5 Eed. 443; Arnold v. Maynard, 2 Story, 349, Fed. Cas. No. 561; Morey v.-Millikin, 86 Me. 464, 30 Atl. 102; Montgomery v. Phillips, 53 N. J. Eq. 203, 31 Atl. 622. (5) There was no error in respect of the judgment rendered for expenditures made by the receiver in completing, perfecting, and collecting upon pledged contracts or accounts. The rule is well settled that a receiver should not assume the execution of a contract which is onerous to the estate, or which may result in depleting the assets in his hands, and that so to do is to create an unlawful preference. Smith, Receiver ships, § 35; Scott v. Banier P. & B. Go. 13 Wash. 108, 42 Pac. 531; United E. S. Go. v. Louisiana Er. L. Go. 71 Fed. 615; General E. Go. v. Whitney, 74 Fed. 664; Dushane v. Beall, 161 U. S. 513; Southern Ex. Go. v. W. N. G. B. Go. 99 U. S. 191; Quincy, M. & P. B. Go. v. Humphreys, 145 U. S. 82; St. Joseph & St. L. B. Go. v. Humphreys, 115 U. S. 105; Sun Flower 0. Go. v. Wilson, 112 U. S. 313; Central T. Go. v. Fast Tennessee L. Go. 79 Eed. 19; Ames v. Union P. B. Co. 60 Eed. 966; Union L. & T. Go. v. S. O. M. B. Go. 19 Eed. 267;. Farmers’ L. & T. Co. v. O. F. & Y. V. B. Go. 73 Eed. 715; Oentral T. Go. v. M. & N. G. B. Go. 51 Fed. 15; Filis v. B. FL. & F. B. Go. 107 Mass. 1. But whether the receiver was or was not hound to complete such a contract or to incur expense in realizing upon it, makes no difference in the result. Pledged as it was, if he spent the funds of the estate in completing or realizing upon it, the expenditures were incurred in the creation of a fund for the benefit of the lien holders, and the fund so created should bear the expenses incurred in its creation. Speiser v. Merchants’ Fx. Banlc, 110 Wis. 506, 519, 520; T. T. Eaydock O. Go. v. Pier, 78 Wis. 579; Fuller v. Abbe, 105 Wis. 238. All who actively and fraudulently participated in procuring and receiving the benefit of such expenditures are jointly bound to make good the amounts so diverted to their benefit, irrespective of the extent of the benefit which each may have received. Spaulding v. North Milwauhee T. S. Go. 106 Wis. 181,498; Zinc O. Go. v. First Nat. Bank, 103 Wis. 125, 135; Fountain S. P. Go. v. Bob-erts, 92 Wis. 315; Franey v. Warner, 96 Wis. 222; Banner v. Schlesinger, 109 Mich. 262, 67 N. W. 116. Even if the pledgees were not themselves trustees, and had not actively participated in the procuring of the preference, they would be liable with him for the return of the expenditures made because of their receipt of the benefits arising therefrom with knowledge that the expenditures were made in violation of Rust’s duty as trustee. Wetmore v. Porter, 92 N. Y. 76, 81; First Nat. Bank v. Nat. Broadway Bank, 156 N. Y. 159, 467; Warren v. Union Bank, 157 N. Y. 259, 268; Duncan v. Jaudon, 15 Wall. 165 ; Kitchen v. Bedford, 13 Wall. 113; Shaw v. Spencer, 100 Mass. 382; Goldthwaite v. Fllison, 99 Ala. 197, 12 So. 812; Ludington v. Patton, 111 Wis. 208, 239, 242; Lee v. Horton, 104 N. Y. 538, 541; Pittsburg M. Go. v. Spooner, 74 Wis. 307, 320; French v. Pittsburgh V. & H. Go. 184 Pa. St. 161, 39 Atl. 63. The making of such expenditures by the trustee, in breach of his trust, and the receipt of the benefit thereof with knowledge, or means of knowledge,- that the payments were made in breach of the trust, constitute a joint conversion on the part of him paying and those receiving, rendering all equally liable for the repayment of the amount paid. Western TJ. T. Go. v. Franklin G. Go. 70 N. H. 37, 47 Atl. 616; Pierson v. McOurdy, 33 Hun, 520, 100 N. Y. 608; Kavanaugh v. Taylor, 2 Ind. App. 502, 28 N. E. 553; Govington v. Anderson, 16 Lea, 310; D. M. Osborne Go. v. Plano Mfg. Go. 51 Neb. 502, 70 N. W. 1124; Byan v. L., A. & N. R. Go. 21 Kan. 270, 294; Robertson v. Hunt, 77 Tex. 321, 14 S. W. 68; Hill v. Oampbell, 54 Neb. 59, 74 N. W. 388; Smith v. Briggs, 64 Wis. 497; Barth v. Graf, 101 Wis. 27, 35; 1 Sutherland, Damages (2d ed.) § 140. As to the effect of the orders of the court made, in reference to the foregoing matters, it is well settled that a receiver will not be protected in the payment of money, or in other action, by an order of the court obtained in bad faith or in violation of his duty. Sweet v. Converse, 88 Mich. 1, 49 N. W. 899; In re Shea, 57 Minn. 415, 59 N. W. 494; Schwartz v. Keystone 0. Go. 153 Pa. St. 283, 25 Atl. 1018; Matter of Commonwealth F. Ins. Go. 32 Hun, 78; People v. Family F. Soc. 52 N. Y. Supp. 867. Even where such an order is obtained by a receiver upon notice, in good faith, and without breach of his trust, so that it will protect him for expenditures made under it, it will not shield the persons for whose benefit the expenditures are made from liability, if it develops that the order was irregular or improvidently granted. In re Home P. S. F. Asso. 15 N. Y. Supp. 211, 129 N. Y. 288; Palmer v. Truby, 136 Pa. St. 556, 20 Atl. 516; Boice v. Oonover, 54 N. J. Eq. 531, 543, 544, 35 Atl. 402. (6) There was no error in the judgment against Hayden, Erawley, and tlie representatives of Rnst. That a receiver is not entitled to compensation where he has been guilty of negligence or misconduct, or breach of trust, even where he acts without fraudulent intent, is well settled. Speiser v. Merchants’ Ex. Bank, 110 Wis. 506; Davis v. Swedish-Am. Nat. Bank, 78 Minn. 408, 81 3ST. W. 210; Schwartz v. Keystone 0. Go. 153 Pa. St. 283, 25 Atl. 1018. It is equally well settled that trust funds may not be depleted by the payment of compensation to attorneys who have acted in bad faith, or adversely to the interest of the trust, or who represent conflicting interests. Davis v. Swedish-Am. Nat. Bank, 78 Minn. 408, 81 R. W. 210; Speiser V. Merchants’ Ex. Bank, 110 Wis. 506; T. T. Eaydock G. Go. v. Pier, 78 Wis. 579; Farwell v. Great Western T. Go. 161 Ill. 522, 44 1ST. E. 891, 920; Strong v. International B. L. & I. U. 183 Ill. 97, 47 E. R. A. 792; Vieth v. Bess, 60 Reb. 52, 82 R. W. 116; Adams v. Woods, 8 Cal. 306; Schwartz v. Keystone 0. Go. 153 Pa. St. 283, 25 Atl. 1018; In re Glauser’s Est. 84 Pa. St. 51; Olapp v. Olapp, 1 R. Y. Supp. 920; Smith v. Wise, 132 R. Y. 172; Perry-Mason S. Go. v. Sykes, 72 Miss. 390, 28 L. R. A. 277; Platt v. Archer, 13 Blatchford, 351. Even were the question one between attorney and client, the attorneys, under the facts of this case, would be precluded from recovering compensation. Strong v. International B. L. & I. U. 183 Ill. 97, 47 L. R. A. 792; B^okett v. Norton, 4 Conn. 517, 10 Am. Dee. 179. (7) The action would not necessarily fail, even though conspiracy and fraud were not proven. Ro variance short of an entire failure of proof is material. And if the proof might have been admitted under an amendment to the complaint, the case made by the complaint could not be deemed to be unproved. Beisz v. Supreme Council, 103 Wis. 427; McNally v. McAndrew, 98 Wis. 62; Slater v. Cook’s Estate, 93 Wis. 104. In this case there was but one cause of action, — that for closing up the corporation, and, as incidental thereto, compelling an accounting by defendants for the disposition of this property and funds for the benefit of its creditors. HurTbwt v. Marshall, 62 Wis. 590, 601; Gager v. M'arsden, 101 Wis. 598; South Bend O. P. Oo. v. George G. Gribb Go.- 97 Wis. 230, 105 Wis. 443. But were the scope of the action merely conspiracy and fraud, there would here be no failure of proof, though it were assumed the evidence established no conspiracy. The gist of the action wherein conspiracy is charged is the damage, and not the conspiracy. Martens v. Reilly, 109 Wis. 464. Though the proof of conspiracy fail, recovery may be had against any one or more of the defendants who may have caused the damage. 6 Am. & Eng. Ency. of Law (2d ed.) 872; Hutchins v. Hutchins, 7 ITill, 104; Jones v. Baker, 7 Oowen, 445; Parker v. Huntington, 2 Gray, 124; Booker v. Puyear, 27 Neb. 346, 43 N. W. 133; Van Horn v. Van Horn, 56 N. J. L. 318, 28 Atl. 669; Fountain S. P. Go. v. Roberts, 92 Wis. 345.</p> <p>The cause was reargued on December 11, 1903.</p>

<p> .Deeds: Taking title in name of third person: Assumption of mortgage by grantee: Liability of real purchasers: Trusts. </p> <p>1. An agreement by tbe purchaser of land to assume and pay a mortgage thereon given by the vendor- must, in order to be valid, be express. It cannot arise from any mere implication or legal imputation.</p> <p>3. At the request of the purchasers of land, it was conveyed hy the vendor to a third person, and by the terms of the deed the grantee assumed a mortgage on the land as a part of the purchase price. Said grantee, in fact, tools title merely as an ac-commodation to the real purchasers, and afterwards conveyed to another at their request. There being no evidence of an ■express promise by such purchasers to pay the mortgage debt, there could be no implied promise upon which the mortgagee could sue. Their implied promise, if any, would be merely to pay the purchase price to the vendor.</p> <p>'3. Under sec. 2077, Stats. 1898, providing that no trust results in such a case, but that absolute title vests in the grantee except as against creditors, the purchasers cannot be held to be the real grantees so as to be bound by the declaration in the deed that the grantee assumed the mortgage.</p> <p>■4. Upon a conveyance of land to a trustee, not naming the beneficiaries, but vesting the legal title in him, the beneficiaries are not liable for any part of the purchase price upon the trustee’s promise to pay.</p>

Dick, Circuit Judge. Appeal by Sherwin and another, holders of bonds secured by the foreclosed mortgage, from an order confirming a foreclosure sale and denying appellants’ motion to order a resale.

<p> Forfeitures: Pleading: Taxation: Board of review: Intentional omission of property: Meetings: Directory statute: Constitutional law. </p> <p>1. In a civil action to recover a forfeiture tie pleadings are to be construed liberally.</p> <p>2. Tie word “intentionally,” in sec. 5, eb. 379, Laws of 1901 (imposing a forfeiture upon any member of a board of review wbo “shall intentionally omit or agree to omit from assessment any property liable to taxation,” etc.), imports wilfulness, evil intent, or unlawful purpose; and a complaint for recovery of sucb a forfeiture, charging the fact in the language of the statute, need not allege in terms that the property was unlawfully, wilfully, or corruptly omitted. “</p> <p>3. An allegation, in such a complaint, that the property omitted was then and there liable to taxation in the assessment district of which defendant was an officer, is sufficient, without further specifically alleging that it was so liable to taxation on the 1st of May in that year as provided in see. 1033, Stats. 1898.</p> <p>4. An allegation that defendant “as member of said board of review” did intentionally omit, etc., sufficiently alleges that he acted in his official capacity.</p> <p>5. Failure to describe specifically the property omitted, does not render the complaint insufficient, but can be taken advantage of, if at all, only by motion to make more definite and certain.-</p> <p>6. Sec. 1060, Stats. 1898, requiring the board of review to meet on the last Monday in June, and sec. 1064, providing that the assessor shall deliver the completed assessment roll to the clerk on or before the first Monday, in August, are directory only, and a failure to comply literally therewith does not invalidate the action of such officers unless the rights of persons interested are thereby materially affected to their prejudice.</p> <p>7. An act (sec. 5, ch. 379, Laws of 1901) imposing a penalty upon any member of a board of review who shall intentionally omit to perform official duties imposed upon him by law, does not contravene any constitutional provision or violate public justice.</p>

<p>Administrators: Mortgage of land to pay claims: Personal liability: Assignment of notes: Bona fide holders: Foreclosure: Costs: Estoppel: Stamp act.</p> <p>1. A transfer of real estate by an administrator, under the power and direction of the court, should he viewed in the light ,of his relation to the property and the objects to he accomplished, and the words of the transfer should he given an interpretation limited to the occasion.</p> <p>2. Promissory notes and an accompanying mortgage of lands of a decedent, executed by an administrator under the direction of the court as security for a loan obtained in order to pay claims against the decedent, should he construed together.</p> <p>3. Such instruments in this ease are held to show on their face that they were executed by the administrator in his representative capacity under authority from the court, so that neither the original mortgagee nor bona fide purchasers obtained any right to enforce payment against the administrator personally.</p> <p>4. In an .action to foreclose a mortgage given by an administrator, where judgment was demanded against him personally for any deficiency, costs were properly awarded to him in a judgment determining that he was not personally liable and granting his counterclaim for reformation of the instruments accordingly.</p> <p>5. An heir who appeared in .the proceeding wherein the administrator was authorized to mortgage real estate, and afterwards assented to the settlement of the final account and discharge of the administrator and to the partition of the estate which gave her the mortgaged lands subject to the mortgage, is es-topped to question, in an action to foreclose the mortgage, the regularity of the proceeding by which the mortgage was authorized.</p> <p>■6. Notes secured by a mortgage were executed to a trust company, which afterwards assigned the notes to several persons. In an action by the company and such assignees they obtained judgment of foreclosure. Held, on appeal, that the objection that the assignment of the notes was invalid because not properly stamped under the federal statutes is unavailing, since, even if such he the fact, the judgment should stand as properly awarded in favor of the trust company.</p>

<p> Contracts: Entire or apportionahle? Sale of chattels. </p> <p>A contract for tlie sale of 200 cords, more or less, of hemlock bark, being tbe entire product of the vendor for the season, at' $5 per cord, to be paid in cash witbin ten days from receipt in carload lots, is apportionable. The vendor may enforce payment for the portion delivered although he fails to deliver the-balance; and the vendee’s right to recover damages for such failure to deliver the whole is not conditioned upon payment, having been made for the portion received.</p>

<p> Partnership: Findings: Evidence: Interest. </p> <p>1. In an action to dissolve an alleged partnership and for an accounting, findings of the trial court — to the effect that no partnership ever existed between the parties; that of certain goods which plaintiff claimed to have furnished and put into the business, a part had been purchased and paid for by defendant and a part had merely been placed in defendant’s store for sale; and that defendant, having had the benefit or received the proceeds of the latter, was liable to plaintiff in a. certain sum as a balance over and above payments thereon— áre held to be sustained by the evidence.</p> <p>2. Where there is no agreement to pay interest on a loan, and repayment is made on demand, the borrower is not liable for interest.</p>

<p> Railroads: Injury to employee: Expert testimony: Subjective symptoms: 'Warning of danger: Assumption of risk: Trial: Issues as to negligence: Proximate cause: Contributory negligence. </p> <p>1. In an action for personal injuries evidence as to statements of the plaintiff to his physician is admissible only when they wore made for the sole purpose of obtaining treatment before litigation was begun or threatened.</p> <p>2. An expert medical witness cannot state what he has learned entirely from medical works, unsupported by practical experience of his own; hut on motion to strike out testimony it should be affirmatively shown to he within such rule of exclusion.</p> <p>8. As to the engineer and fireman of an engine sent to assist in putting out the fire on a burning railway bridge whose exact location they knew, there was no duty on the part of the railway company to display signals or give other warning of the location and condition of the bridge; and such employees assumed the risks ordinarily incident to the work.</p> <p>4. In an action for injuries to a locomotive fireman, caused by tbe fall of bis engine through a burning bridge, tbe complaint charged specifically, among other things, that the engineer was negligent in failing to stop before reaching the dangerous place. This charge was apparently lost sight of on the trial. There is no affirmative evidence that it was abandoned and, though the issue was not covered by the special verdict, the form of the verdict itself shows that the charge was not deemed to have been proven by uncontradicted testimony. The jury found that failure to display signals or give warning of the danger was the proximate cause of the injury. Held, that this excluded another proximate cause, and plaintiff cannot have a judgment in his favor affirmed on the ground that the negligence of the engineer was conclusively established.</p> <p>5. Whether the fireman was himself negligent in failing to warn the engineer of their approach to the burned portion of the bridge is held, upon the evidence, to have been a question for the jury.</p>

<p> Municipal corporations: Streets: Death caused 5y defective insulation of lighting wires: Knowledge of defect: Duty of inspection: Pleading. </p> <p>1. In an action against a city for death caused by defective insulation of electric lighting wires owned by a lighting company, by reason whereof the current passed into a guy wire so located that a person following the usual course of travel on the street was liable to come in contact with it, as plaintiff’s intestate did, the complaint alleged that such condition was known to the city or had existed for so long a time before the accident that the city ought, in the exercise of ordinary care, to have known of and remedied the defect. Held, that the indefiniteness in the statement as to the length of time the defective insulation had existed did not render the complaint insufficient, but could be taken advantage of, if at all, only by motion.</p> <p>2. Whether, if it should appear that the alleged defect was discoverable only by an inspection by an electrician, the city could’ be held liable on the ground that it was its duty to make such inspection of the appliances of a lighting company occupying its streets, not determined.]</p> <p>3. Upon demurrer, all reasonable inferences that can be drawn from, the language of a pleading to support it are to be indulged in, rather than such as will defeat it.</p>

<p>Schools: Establishment of text-books: Poioers of board: Contracts: Mandamus.</p> <p>1. The duty of a board of education, imposed by tbe city charter, “to establish the text-boohs to be used” in the schools, is persistent and continuous; and the board cannot, certainly without express legislative authority, disable itself to perform such duty by contract or by resolution not to exercise its power for any given period.</p> <p>2. The action of the board in the performance of such duty will not be dictated or controlled by courts, especially not by mandamus.</p>

<p> ¡Mstablishing heirship: Presumption of regularity: Construction of statutes: Failure to record order: When county court may determine who are heirs: Waiver of rights: Filing claim. </p> <p>.1. Notice was duly given that an application, under ch. 49, R. S. 1858, to establish heirship would he made to the circuit court on April 3, or as soon thereafter as counsel could be heard. The records of the court do not show that any proceeding was had in the matter on April 3, but show that the application was heard on May 17, at a sitting of the court during the term which commenced on April 3. The notice, with proof of publication, the required consent dated April 3, and the proper petition dated April 28, were filed on May 17, and the fact that the application was based on such papers, and their filing, are recited in the order dated May 17, establishing the heirship. Held that, the court haying jurisdiction of the parties and the subject matter, it will he presumed that due proceedings were had at the time set by the notice, preparatory to the making of 'the order of May 17th.</p> <p>;2. The presumption in favor of the regularity of the. proceedings of a court of general jurisdiction obtains in case of a proceeding under a special statute.</p> <p>■3. A statute providing for the establishment of heirships should be construed liberally to accomplish its object.</p> <p>4. Failure of the court officers to enter at length upon the records, as required by the statute, an order establishing heirship, does not invalidate the order.</p> <p>5. The county court may properly proceed to determine who are the heirs of a decedent, although the administration of his estate has not reached the stage of final distribution.</p> <p>•8. One whose rights as the established heir of a decedent under an order of court were disputed did not waive such rights by filing a claim for services rendered to the decedent, such claim being filed to protect him in case it should be determined that he had no interest in the estate as heir.</p>

<p>■Guardian and ward: Incompetent person: Sufficiency of petition: Notice: Presence of incompetent in court: Guardian ad litem: Appeal: “Person aggrieved:" Jurisdiction: Validity of agreements.</p> <p>1. A petition for the appointment of a guardian fpr an incompetent person is not insufficient to give the county court jurisdiction to proceed in the matter merely because it fails to state the names of the persons who would he affected by such appointment, and fails to show with whom the alleged incompetent resides and who is in possession of her property.</p> <p>2. Where notice of the time and place for hearing such petition was given to the alleged incompetent by personal service and to all other persons by publication, in compliance with the statute and the order of the court, it was not essential to the jurisdiction that personal service should have been ordered or made upon the son with whom she resided and who had control of her property, or upon her other children.</p> <p>3. Where the alleged incompetent was personally present in court during the hearing, it is immaterial that the order for such hearing did not require that, if able to attend, she he produced before the court.</p> <p>4. On the hearing of a petition for the appointment of a guardian for an alleged incompetent person, the county court appointed a guardian ad litem, for her, and, she having been adjudged' incompetent and a guardian appointed, the guardian ad litem-appealed on her behalf to the circuit court. Held, that such appeal gave the circuit court jurisdiction.</p> <p>5. A son of the alleged incompetent person who had possession of all her property under an assignment or transfer from her, was a person aggrieved by the order and judgment of the county court appointing the guardian, and hence was entitled to appeal therefrom.</p> <p>6. Upon the appeal in such case the circuit court had no authority to adjudge the validity of the agreement between the alleged incompetent and her son, whereby her property was transferred. to him and he agreed to provide for her support, — an action brought by her to set aside such agreement being then pending.</p>

<p>Contracts: Fraud-: Issues: Pleading: Amendment to conform to facts proved: Appeal. '</p> <p>Tie issues, upon the pleadings, were whether defendant’s agents made a certain agreement with plaintiff, and whether they had: authority to hind defendant thereby. The court found that they made the agreement, hut that they were induced to do so by plaintiff’s false statements. It rendered judgment for defendant without passing upon the question of the agent’s authority. The finding of fraud was amply sustained by the evidence, which was introduced on both sides without objection. Held, on appeal, that this court will, in support of the judgment, consider the pleadings as having been amended to conform to the facts proved. •</p>

<p> Deeds: Delivery to third person: Intent: Husband and wife. </p> <p>1. The manual deposit of a deed with a third person, to receive and hold for the grantee, with intent thereby to give the paper-effect as a deed and to place the same beyond the custody and control of the grantor, will give such deed validity and efficacy as against the grantor, although some condition is imposed, precedent to final delivery to the grantee, which may serve to-prevent vesting of actual title in him meanwhile.</p> <p>2. Though the intent to make effective delivery is less readily inferred when a bedridden man hands to his wife a deed to another person, yet, if the necessary intent to place the instrument out of his control for the benefit of the grantee exists,, the deposit with the wife is as effective as with a stranger.</p> <p>3. The question of the intent of the grantor in delivering a deed' to another than the grantee is one of fact, to be determined from all the circumstances surrounding the transaction.</p>

<p> Street railways: Injury to passenger: Contributory negligence: Court and, jury: Instructions. </p> <p>1. In an action against a street railway company for injuries sustained by a passenger while alighting, though the testimony of plaintiff and her mother, to the effect that the car had</p> <p>- - stopped and that she was in the act of-alighting when it started and caused her to fall, was contradicted by seven witnesses who testified that the car had started and was moving before she attempted to alight, it cannot be held that the trial court erred in refusing to set aside, as against the evidence, a verdict for the plaintiff.</p> <p>2. The jury were charged, in positive and unqualified terms, that if plaintiff undertook to alight from the car while it was in motion she could not recover. Another instruction was to the effect that if they believed the car had stopped for a reasonable time and that plaintiff had given no notice or signal that she wished to get off at that place, and should further believe that after the car started it occurred to her that she ought to have gotten off, and should believe that she attempted to go' out of the car while it was in motion, and should believe that its being in motion was the cause of her falling off, then she could not recover. Held, that, although this instruction included elements not necessary to be passed upon by the jury to acquit defendant of liability, yet, considering the charge as a whole, the jury could not have been misled as to the true rule.</p>

<p> .Action, at law or in equity: Injunction: Threat of repeated, trespass: Fences. </p> <p>A court of equity will not interfere to prevent a mere threatened trespass upon land; hut where, hy reason of the continuous or repeated character of the threatened invasion, many actions at law would he necessary, in no one of which could compensation for the whole wrong he obtained, an action for an injunction may be maintained. So held, on demurrer to- a complaint alleging that defendant had built a fence on plaintiff’s land, cutting him off from access to a street; that plaintiff had removed the fence; hut that defendant threatens to re-enter and reconstruct the fence as often as plaintiff removes it.</p>

<p> Municipal corporations: Obstruction of street: Storage of vehiclesr Injury to pedestrian: Evidence: Instructions to jury: Appeal: Briefs. </p> <p>1. Long-continued use of a street for such, a purpose as the leaving of vehicles or other objects therein may render it unsafe for public use so as to charge the municipality with liability for resulting injuries.</p> <p>2. It need not be shown in such case that any particular vehicle had been customarily left in the particular way and at the precise place where the one causing the accident in question was at that time; but it is sufficient if it be shown that the leaving of that vehicle was a continuance of a customary use, permitted by the municipality, of the street in that immediate vieinity-as a storage place for vehicles temporarily out of use, to such an extent as to render the street unfit for public travel.</p> <p>3. Nor is it material that such leaving of vehicles in the street was for the convenience of the owners thereof while their horses were being cared for temporarily in a nearby barn.</p> <p>4. Error in admitting evidence in such a case, that the defendant had allowed other places in its streets to be obstructed by the leaving of vehicles therein, is held to have been so far cured as not to have prejudiced the defendant by a direction to the jury to disregard such evidence.</p> <p>5. Evidence of statements of the president of a village, subsequent to the accident in question, showing knowledge prior to the accident that the street was used as alleged, was admissible upon the question of notice.</p> <p>6. Permitting a party to make further proof on rebuttal after both sides had rested will not be held ground for reversal unless shown to have been a clear abuse of discretion and to have substantially prejudiced the adverse party.</p> <p>7. In appellant’s brief the particular parts of the trial judge’s charge which are claimed to be prejudicially erroneous should ' be specifically pointed out, with the reasons for citing them to the attention of this court.</p>

<p>Appeal from a judgment of the circuit court for Vernon county: J. J. Emm?, Circuit Judge..</p> <p>This is an action to recover $105.80 as an overpayment on a conveyance of land. Respondent alleges that he and ap-pellant entered into an oral agreement whereby appellant agreed to sell and convey to him the east half of the northeast quarter of section 36, township 13, range 5, at an agreed price of $50 an acre, and that it Was mutually agreed and understood that the tract conveyed contained eighty acres, and that the amount paid was computed upon such belief and understanding. Pursuant to the agreement, appellant conveyed the tract of land by deed reciting that it was “for and in consideration, of the sum of four thousand dollars,” paid him by respondent, the receipt whereof was acknowledged in tho deed, and the land so conveyed to respondent was therein described as follows: “The east half of the northeast quarter of section 36, township 13, range 5.” The deed was delivered to respondent, who paid the appellant the $4,000 as the consideration, took possession of the premises, and is still in possession of them. Shortly after the conveyance, respondent' caused the tract to he surveyed, and found that it contained only 77.88 acres. He demanded repayment of the pro ratal part of the consideration for such shortage, which was refused by appellant. He then brought this action to recover the overpayment upon the ground that he and appellant made a mistake in computing the amount, of the consideration to he paid under the agreement for the land actually conveyed by the deed. There is no claim of fraud in the case. Respondent admits that he has received the full tract purchased by. him, but' asserts that through this mistake in computing the consideration to be paid for the number of acres conveyed he overpaid respondent the sum of $105.80.</p> <p>Appellant objected to the reception of any evidence under tbe complaint upon tbe ground tbat respondent bad accepted tbe deed describing tbe land as an entire tract at tbe agreed gross sum of $4,000, and tbat be could not sbow any prior oral agreement of sale at a stipulated price per acre for tbe actual number of acres conveyed after having accepted tbe' deed and paid tbe consideration. Tbe case was submitted to tbe jury, wbo under proper instructions found tbat tbe parties made a mistake as to tbe number of acres in tbe tract, and tbat tbis resulted in an overpayment of tbe sum claimed, and tbat respondent was entitled to recover tbe same. Tbe court awarded judgment for tbe amount of damages and for costs. Tbis is an appeal from tbe judgment.</p> <p>cited Marvin v. Bennett, 26 Wend. 169; Wood v. Murphy, 47 Mo'. App. 589; Frenche v. Chancellor, 51 N. J. Eq. 624, 27 Atl. 140; Pringle v. Rogers, 193 Pa. St. 94; Williams v. Hathaway, 19 Pick. 387; Ohlert v. Alderson, 86 Wis. 433; Howes v. Barker, 3 Johns. 506; Lane v. Parsons, 108 Iowa, 241, 79 N. W. 1039; Wilson v. Riddick, 100 Iowa, 697, 69 N. W. 1039.</p>

<p>Contracts: Breach: Belaying performance: Recovery. '</p> <p>A contract for the drilling of a well by plaintiff for defendant, provided that defendant should furnish the casing pipe and material for the pump; that plaintiff should put everything in-, place ready for pumping and-assist in connecting the pump; and that the work should be pushed to completion with all possible dispatch and without unnecessary delay. Defendant failed to furnish the pipe and material for the pump for several ■weeks after plaintiff was ready to put them in the well, thereby delaying plaintiff in the performance of his contract. Held, that for such delay plaintiff might recover substantial damages.</p>

<p> Insolvency: Jurisdiction: Collateral attack: Fixing day for hearing: Order: Evidence: Proof of notice: Mandatory statute. </p> <p>1. If lack of jurisdiction appears on the face of the record in insolvency proceedings, the discharge therein may he attacked collaterally.</p> <p>2. Proceedings hy an insolvent debtor under ch. 179, Stats. 1898, to obtain a discharge from his debts are strictly adversary, and creditors whose claims are to be barred thereby must be made parties and jurisdiction of them obtained in the manner provided by the statute.</p> <p>3. Under sec. 4285, Stats. 1898, the fixing of a day for the hearing, in the order to show cause why a discharge in insolvency should not be granted, is jurisdictional.</p> <p>4. Where, in the written order on file, the date fixed for the hearing is left blank, a recital in a subsequent order that the court did in fact fix a certain day as the time for the hearing sufficiently shows that the day was properly fixed.</p> <p>5. The written order on file is not necessarily the decision of the court, but generally is merely evidence thereof, the announcement from the bench being the order in fact.</p> <p>•6. The provision of sec. 4288, Stats. 1898, that on the day fixed in the order to show cause proof shall be made of the service and publication of the required notices “before any other proceeding shall be had,” is mandatory and exclusive, and a discharge granted before the filing of such proof is without jurisdiction and void.</p>

<p> Building contract: Waiver of lien: Payment for “extras:’’ Condition precedent: Waiver of prior valuation: Allowance of additional time: Architect’s certificate: Liquidated damages. </p> <p>1. The right to a mechanic’s lien may be waived by an agreement not to exercise it; but if the contract is ambiguous on the question the doubt will be resolved against the waiver.</p> <p>2. A contract providing for delivery of the completed building to the owner “free from all claims, liens, and charges,” and for final payment when the architect should be satisfied that the building was in fact free from liens, is held to refer only to liens of those claiming through or under the contractor, and not to be a waiver of his own right to a lien.</p> <p>3. A stipulation in a building contract to the effect that, unless the value of additions to or deductions from the contract work shall first have been agreed upon and indorsed upon the contract, the difference in value, whether in favor of the contractor or of the owner, shall be deemed forfeited, should not be held to have been waived — at least in respect to trifling changes — by the mere failure to agree upon and indorse their value. It should be held waived in such case only upon clear and satisfactory evidence showing that to have been the .intention of the parties or showing an estoppel in pais.</p> <p>4. A contract provided in effect that no additional time should he allowed for the completion of the building on account of delays arising from certain specified causes unless at the time of such delay written notice should he given to the architect and he should then make the allowance. Held, that where no notice of claim for additional time was made under that provision, the architect had no right to consider such delays in determining whether or not the work could reasonably have been completed at the stipulated time.</p> <p>5. A contract for the building of a hospital for $24,660 provided that the contractor should pay $20 for each day the work remained uncompleted after a time fixed. The character of the building being such that the actual damages resulting from such a delay, or the rental value of the building, would be very difficult of ascertainment, and the amount stipulated not being largely, if at all, in excess of a fair interest on the investment, it is held that the provision was one for liquidated damages and not for a penalty.</p> <p>6. The delay for which, in such a case, the stipulated sum per day is payable refers to working days only.</p>

<p> Partnership: Who are members: Signature of articles: Intent: Court and jury: Costs: Printed case on appeal. </p> <p>X. In an action to charge as partners persons whose signatures appeared in a book in which had been pasted the articles of co-partnership of a Farmers’ Union — some of the signatures being upon sheets inserted by pasting and some upon the pages of the book itself — the evidence (discussed in the opinion) is held sufficient as to the signatures on two of the pasted sheets, and also as to those in the book itself, to sustain a verdict to the effect that at all times when such signatures were being made the articles of partnership were annexed to such sheets or book, and that the signers intended to subscribe such articles.</p> <p>2. As to another of such pasted sheets the evidence is held insufficient to show that the articles were annexed- thereto at the several times when the signatures on it were made, but sufficient as to some of the signers thereon, though insufficient as to others, to warrant the inference that they intended, at' the time of signing, to join the partnership.</p> <p>5. As to one M., whose name appeared o'n a small slip pasted in the book, and who denied that he ever signed, the testimony of another defendant whose name was on the same slip, that both he and M. signed at the same time with the declared purpose of becoming parties to the agreement, is held sufficient, together with some evidence of the authenticity of M.’s signature, to taire to the jury the question whether he signed for the purpose of joining the partnership.</p> <p>4. A judgment against a number of partners was appealed from by a part of them and was reversed. Upon a second trial a new judgment was entered against all the defendants, and the costs allowed included those taxed and allowed in the former judgment. Some of the former appellants. again appealed. Held, that as to them, at least, the inclusion of such costs was not error.</p> <p>5. The printed case herein having included, in violation of Supreme Court Rule VIII, considerable testimony relating exclusively to the liability of nonappealing defendants, and the judge’s charge in extenso, to which no exception was taken, and there being a large part of it pertaining only to the liability of nonprevailing appellants, taxation of the expense of printing such case is limited to about one third thereof.</p>

<p> Malicious prosecution: Termination of proceeding: Injunction: Malicious abuse: Damages. </p> <p>1. An order that a defendant show cause on a certain day why he should not be restrained from disposing of his property pen-dente lite, and restraining him from disposing of it in the meanwhile, went down because the court was not in session on the day set, and was abandoned. Held, that such termination of that proceeding did not give said defendant a right to maintain an action for malicious prosecution before the termination of the action in which that proceeding was had.</p> <p>2. In an action to recover damages for the malicious abuse of an in-junctional proceeding to restrain the sale of property, it appeared that the property could have been sold at prices as high immediately after the termination of the proceeding as before it was in force, and there was no proof that the party restrained could or would have sold it during the time he was so restrained. Held, that the jury were properly directed that there could be no recovery.</p> <p>S. To warrant a recovery in such a case it must appear that the injunction prevented a sale.</p>

<p> Bales: Canceling order hefore acceptance: Time of mailing: Evidence. </p> <p>1. An order for goods, given to an agent and not to become binding unless approved and accepted by the vendor, may be withdrawn or canceled up to the time of such acceptance.</p> <p>2. Where in such a case the order was sent to the vendor by mail, the contract became binding at the moment when a postal-card of acceptance, properly addressed, was deposited in the postoffiee by-the vendor, unless the order had been previously withdrawn.</p> <p>3. The evidence in this case — tending to show, among other - things, that a letter canceling an order was received by the vendor at 2 p. m., and showing that the postal card accepting the order was postmarked at a branch postoffice four blocks - from his office at 4 p. m. of the same day- — is held to justify a. finding that the order was canceled before acceptance.</p>

<p> Municipal corporations: Claims: Appeal from council: Limitation: Injury from defective sidewalk: Pleading: Contributory negligence: Prior knowledge of defect: Evidence: Leading questions: Other defects: Expert testimony: Special verdict: Instructions. Improper statements by counsel: Immaterial errors. </p> <p>1. Under ch.. 68, Laws of 1901, if no notice of the action or non, action of a city council upon a claim is served upon the claimant, the right to appeal is not limited to eighty days after the filing of the claim, as provided in sec. 925 — 60, Stats. 1898.</p> <p>2. In an action for injury alleged to have been caused by a defective sidewalk, a complaint alleging that a cross-plank of the walk was broken and depressed at the center to the ground, is hot insufficient merely because it fails to state the depth of the hole.</p> <p>3. "Where plaintiff knew of the hole in a sidewalk into which she stepped and was injured, contributory negligence in not remembering and avoiding the danger is presumed in the absence of satisfactory excuse for forgetting it.</p> <p>i. The evidence in this case — to the effect that the accident happened in the evening when it was quite dark; that plaintiff was carrying several things which somewhat occupied her attention; that when near the hole her husband, who was a short distance ahead of her, called to her to hurry up; that this drew her attention to him; and that almost immediately thereafter she stepped into the hole — is held such that the jury might reasonably have found that plaintiff was excusable for not remembering the defect.</p> <p>5. In the direct examination of a party or an interested witness, leading questions suggesting the answer favorable to him should never be allowed except under peculiar circumstances reasonably calling for such departure from the ordinary method. Thus, in this case, after plaintiff had testified in a manner indicating that she was traveling on the walk regardless of the defect and without any reasonable excuse therefor, a question asked by her counsel, “Did the things you had in your arms, as you have described them, have any effect upon your attention?” was leading and improper.</p> <p>6. Evidence as to a generally defective condition of the sidewalk in the vicinity is not admissible where the particular defect causing the injury — in this case the breaking down of a strong plank — had no relation to such general condition; and where, under such circumstances, the evidence is admitted in a way indicating that it may be considered upon the question of constructive notice of the defect complained of, the error is prejudicial.</p> <p>7. Opinion evidence should not be permitted to extend to the merits ■ of the controversy, passing upon questions to be submitted to the jury, or to go outside the field of scientific knowledge.</p> <p>8. In an action for personal injuries alleged to have been caused by a defective sidewalk, a medical expert was asked what, in his opinion, was the cause of the particular diseased condition of plaintiff to which he had testified, basing such opinion on the assumption that her testimony was true and upon his observation and examination of her. Held, that a general objection to the question as incompetent did not reach the defect, if there was one, that the question was not sufficiently restricted to prevent the witness from going outside the field of scientific knowledge; and, no -notion having been made to strike out the answer that plaintiff’s diseased condition was caused by her fall on the sidewalk, there was no error of which defendant can complain.</p> <p>9. The question whether a defect in a sidewalk had existed long enough to enable the city by the exercise of ordinary care to discover and remedy it before the accident, is a single question, proper to be submitted for special verdict without division.</p> <p>10. tn submitting such question to the jury, the law applicable to the fact should not be embodied therein, as by asking whether the defect had existed long enough to make it the duty of the city to discover and repair it.</p> <p>11. Upon the question, submitted for special verdict, whether plaintiff was guilty of any want of. ordinary care which contributed to the injury, defendant is entitled, upon proper request, to have the jury instructed that a slight want of ordinary care on the part of plaintiff which contributed to the injury is sufficient to require an affirmative' answer; but if the instruction as requested omits the essential element that the slight want of care contributed to the injury, its refusal is not error.</p> <p>12. In an action for injuries caused by a defect in a sidewalk of which plaintiff had prior knowledge, defendant is entitled, upon request, to have the jury instructed, upon the question of contributory negligence, that plaintiff’s knowledge of the defect made it her duty to use greater care than would otherwise have been required of her in order to come up to the standard of ordinary care.</p> <p>13. Where a special verdict is taken it is error for the court to inform the jury as to the effect of their findings by instructing them in regard to the law applicable to the facts as they may find them.</p> <p>14. An objection in this case to the conduct of plaintiff’s counsel in stating to the jury the effect of certain answers to the special questions having been sustained by the trial court, there was no prejudicial error.</p>

<p> Municipal corporations: Injury from defective sidewalk: Description of defect in notice and complaint: Variance: Amendment: Evidence: Contributory negligence: Instructions: Damages. </p> <p>1. In an action for personal injuries alleged to have been caused by a- defective sidewalk, the complaint described the defect as a hole caused by the adjoining edges of two planks having rotted away. The notice of injury had described- it as a hole caused by the fact that a considerable portion of two planks had rotted away and broken; and the evidence showed that besides the complete rotting away of a portion of the planks the partially rotted edge of one had been splintered and broken so as to enlarge the hole. Held, that the variance was not material, and, though the description in the complaint might apply to another defect in the vicinity, such ambiguity could not be ascribed to any purpose to mislead.</p> <p>2. An amendment of the complaint, in such case, to conform to the evidence being unnecessary, the allowance of such an amendment was without prejudice.</p> <p>3. A witness who had made measurements to ascertain the exact . location of the defect several days after the injury, and after the planks had been removed, claimed to he able to locate the place by his memory and by a gathering of rotten wood on the ground which he had observed under the hole while the sidewalk was in place at and before the time of the injury. Held, that his testimony as to measurements was admissible.</p> <p>4. Where an injury was caused by a rotted hole in a plank sidewalk, evidence that there were other similar holes and that the whole walk was old, worn out, and rotten, was admissible.</p> <p>5. One who, having no prior knowledge of defects, was injured by stepping into a rotted hole in a sidewalk upon a main street of a city, was not guilty of contributory negligence, as matter of law, merely because, as she passed along, she was engaged in conversation and gave no particular attention to the surface of the walk, although she had observed that it was a plank walk and in places was “kind of teetery.”</p> <p>16. Whether an instruction that, “the whole twelve jurors must approve of and agree to all and every one of the answers made and returned” was error, for the reason that it gave the jury to understand that they could not disagree but that an agreement one way or the other was compulsory, not decided.]</p> <p>7. Upon evidence tending to prove that as a result of a fall on a defective sidewalk plaintiff received severe external bruises, suffered much pain, was confined to her bed for six weeks, and was disabled from comfortable performance of her household duties for a long time, and also suffered some injury to organs in the pelvic region, it was not an abuse of discretion to refuse to set aside as excessive a verdict for $1,000.</p>

<p>Appeal from a judgment of tbe circuit court for Green Lake county: Geo. W. BueNbll, Circuit Judge.</p> <p>This action was commenced June 29, 1901, to recover back $41.92 paid by tbe plaintiff under protest for tbe amount of special assessment against tbe plaintiff in tbe construction of a drain across bis lands. It appears from tbe record and is undisputed or found by tbe court, in effect: (3) That November 25, 1899, there was duly presented to tbe supervisors of tbe toAvn a petition in writing, signed by twenty freeholders residing therein, including one or more of the owners of portions of lands through which the enlargement of the ditch, hereinafter mentioned would pass, and through which said ditch was proposed to be laid out, and asking the supervisors-to lay out in sections and enlarge a ditch for the purpose of draining marsh and overflowed lands therein pursuant to the-provisions of see. 1359, Stats. 1898; the line of said ditch to-pass over and along certain lands of the plaintiff and other-lands situated in said town. (4) That the application and petition duly described the land through which the proposed' ditch was to pass, together with the route of the same ás nearly as practicable. (5) That May 5, 1900, the supervisors of the town duly made out a notice pursuant to the provisions of sec. 1360, Stats. 1898, fixing therein a time and' place at which they would meet to examine and decide upon the application and petition, such notice specifying as nearly as practicable the route of the proposed drain and ditch and the several tracts of land through which the same would pass. (6) That the route of said ditch was stated in the notice to pass through the lands of the plaintiff, who was then a resident of the town. (7) That the supervisors, pursuant to sec. 1360, Stats. 1898, duly caused the notice to be served upon each of the resident owners, as therein prescribed. (8) That May 15, 1900, pursuant to such notice and sec. 1361,. Stats. 1898, the supervisors did meet at the time and place-designated in such notice, and did them and there proceed to-examine the location where it was proposed to construct such ditch, and did hear all reasons that were offered for and' against the laying out and construction thereof, and did duly decide to lay out and establish the ditch and the enlargement thereof, which said'ditch so established and laid out by the-supervisors passed through and along the lands of the plaintiff and other lands; and May 26, 1900, the supervisors did duly make an order establishing the route of the ditch, and prescribing the width and depth thereof, and caused a survey to be made — all pursuant to sec. 1362, Stats. 1898. (9) And did duly make an order pursuant to sec. 1363, Stats. 1898, dividing tbe ditch into seven sections — the same being not less in number than the several parcels of land which would be directly benefited by the construction of the ditch, and in and by the order, among other things, provided that sections 3, 5, and 1 should be constructed, maintained, and kept in repair by the plaintiff; and did further in and by the order estimate the cost of construction of each section of said ditch, to wit, $10 for section 3, $'7.80 for section 5, and $15.60 for section 1. (10) That June 4, 1900, the supervisors did duly make a further order and certificate certifying that the total ■cost of construction of the ditch was $74.50, and apportioned the cost among the owners of the several parcels of land in the town, each of which tracts would, in the judgment of the supervisors, be directly benefited by the construction and opening of such enlargement of said ditch, and assessed upon each of said tracts of land and the owners thereof the siun of $'74.50 in proportion to the benefits to be respectively derived by such tracts of land, and duly assessed against the plaintiff and his lands, for the construction of said ditch, pursuant to sec. 1364, Stats. 1898, the sum of $33.40 as benefits; and the •supervisors at the time of making said order entirely failed and refused, to award to the plaintiff any damages occasioned by the construction, enlargement, and opening of said ditch through his lands. (11) That the plaintiff, not being satisfied therewith, duly appealed therefrom pursuant to sec. 1366, Stats. 1898; that upon the hearing of the appeal, June 23, 1900, by agreement between the supervisors and the plaintiff, the appeal was dismissed and abandoned. (12) That thereafter, and pursuant to mandamus proceedings, the supervisors of the town did duly cause a survey of the ditch to be made, and a map and plan thereof made, pursuant to the provisions of sec. 1363, Stats. 1898, and in all things complied with the provisions of that section. (13) That October 11, 1900, tbe supervisors did duly make a certificate of additional assessment of benefits to be derived from tbe laying out of said ditch and enlarging tbe same in order to pay.tbe additional expenses of said plan and map and survey, and tbe additional expenses entailed in tbe completion of tbe ditch and: tbe enlargement thereof pursuant to sec. 13J1, Stats. 1898,. and in and by tbe certificates of additional assessment did assess against tbe lands of tbe plaintiff herein, and for tbe completion and enlargement of said ditch, tbe sum of $8.52, and in and by tbe certificate of additional assessment so made did direct tbe officers of tbe town, as provided by law, to collect tbe same as if tbe same bad been levied and assessed under- and by virtue of tbe orders and certificates of assessment so-made May 26, 1900, and June 4, 1900, as aforesaid; and by-virtue thereof there was duly assessed against tbe lands of' tbe plaintiff for benefits derived in tbe laying out and construction and enlargement of said ditch in tbe aggregate the-sum of $41.92. (14) That October 22, 1900, tbe supervisors of tbe town did award to tbe plaintiff for damages which be-would sustain by reason of tbe construction and opening and' enlargement of said ditch tbe sum of $10 damages to the-lands of tbe plaintiff, and in and by said award awarded damages to tbe owner of each parcel of land damaged as they adjudged reasonable and just. (15) That thereafter said ditch and drain was duly constructed and enlarged, and tbe supervisors duly tendered to tbe plaintiff tbe work of constructing, in accordance with tbe specifications and within a. reasonable time, such sections of such work as were located on-, tbe plaintiff’s lands as hereinbefore found, at tbe prices estimated by tbe supervisors for doing tbe work so tendered,, which tender tbe plaintiff refused, and refused to construct tbe same, and therefore tbe supervisors duly let to tbe lowest responsible bidder tbe sections of work in construction and enlargement of said ditch not so disposed of and not so-constructed and performed by tbe plaintiff, after posting no'tices for proposals therefor, as required bj sec. 1370, Stats. 1898, and the contract awarded for the construction of said •sections of said ditch was at a price not greater than the original estimate of the cost thereof made by the supervisors, as ■increased by them by their certificate of additional assessment made October 17, 1900. (16) That January 7, 1901, the .■amount so assessed for benefits, to wit, $41.92, was collected from the plaintiff pursuant to sec. 1369, Stats. 1898, and that ¡•amount was paid by the plaintiff to the town treasurer under ■protest made by him at the time of such payment. (17) That all orders and papers and plans and specifications made by the supervisors were duly filed in the office of the town clerk. •(18) That the supervisors in laying out and constructing said •ditch, and in enlarging the same, and in assessing the benefits to be derived therefrom against the plaintiff and his lands, and in all the proceedings in laying out and constructing and enlarging said ditch and in levying such assessment ¡.against the plaintiff and his lands, duly followed all the provisions of ch. 54, Stats. 1898, in that behalf, and duly did ¡all things and performed all acts that were necessary to be performed and prescribed by said ch. 54 to authorize them to .lay out, construct, and enlarge said ditch. (19) That by ■reason of the action of the supervisors the plaintiff was indebted to the town and the town treasurer in the sum of '$41.92. (20) That no notice of the pendency of any appli- • cation for the laying out, constructing, or enlarging of said ■ ditch of any kind was ever filed in the office of the register of -deeds.</p> <p>And as conclusions of law the court found, in effect, that "the supervisors, in laying out and constructing said ditch and ■enlarging the same, and in assessing the $41.92 against the plaintiff and his lands, in all things duly acted pursuant to ‘law and to the authority in them vested by ch. 54, Stats. 1898; ■that the town treasurer had due and legal authority to collect -from the plaintiff the $41.92 so paid by him to the town treasurer; that no cause of action exists in favor of the plaintiff and against the defendant; that the complaint in this action should be dismissed, with costs against the plaintiff. From the judgment entered thereon accordingly the plaintiff brings this appeal.</p>

<p> State and, federal courts: Prior action. </p> <p>A state court should not proceed in an action when it appears that a prior action between the same parties and involving the same issues is pending in a federal court.</p>

<p> Appeal: Mandate: Judgment in trial court: 'Wills: Election by widow: Fraud of trustees: Accounting: Insurance: Dower: Interest: Advancements. </p> <p>1. Where a cause has been remanded hy the supreme court with directions stating the measure of relief to be granted, the trial court should enter judgment in strict accordance- with such mandate.</p> <p>2. The mandate' of this court on a former appeal directed that a widow be restored to the situation she would have occupied had she duly elected to take the provision made for her by law instead of that made in her husband’s will, and bad she seasonably been put in possession and enjoyment thereof, — she to be charged with the legitimate expenses that would have belonged to her to pay if the trustees under the will had rightfully cared for her property as trustees of an express trust. It was indicated that, where practicable, she was to receive in specie the property which would have come to her had she made said election, and, where that was not practicable, that she should have an equivalent in money. Held:</p> <p>(1) The insurance with which the widow should be charged in respect to the homestead and other realty is limited, under such mandate, to the reasonable cost o£ protecting her insurable interest, i. e. the value of her contingent and dower rights. [Whether in determining the mesne profits of realty, upon the-assessment of damages for wrongful detention of a dower interest, or upon the statement of an account between life tenant and remainderman, insurance, as well as taxes and repairs,, should be deducted from gross income, not determined.]</p> <p>(2) The trustees having, by improvement of unproductive-realty, obtained a profit therefrom, and being charged with the value of the use of such realty, insurance, as well as taxes- and repairs, was properly deducted from the total rent to determine the net rent; and after apportioning such net rent between the value of the improvements and the value of the realty separate therefrom, one third of the amount apportioned to the-latter was properly allowed to the widow on account of her dower interest.</p> <p>(3) It was error to assign to the widow, as her dower interest in said realty, one third of the rents, issues, and profits-thereof as the same had been improved by the trustees, the cost of such improvements being treated in another part of the account as personal property in which she was entitled to share equally with the' heirs. The realty should be valued, separate-from the improvements, as of the time of the accounting, and she should be allowed, for her interest therein, the value of her dower right according to the principles of law applicable-to annuities.</p> <p>•(4) The widow being entitled under the mandate to a one-seventh interest in a certain mortgage, the trustees should have been charged in her favor with one seventh of the value of said mortgage at the close of the executorship period, with interest thereafter until the final closing of the account.</p> <p>(5) In stating the account under the mandate all payments-made to the widow, over and above the allowances to which she was entitled during the settlement of the estate, should have been charged to her as of the date thereof, and all payments, which ought to have been, but were not, made to her should have been charged in her favor against the trustees as of the time they ought to have been made, with interest upon each item down to the closing of the account.</p> <p>(6) The trial court having, however, treated separately the period of executorship and the following period of trusteeship under the will, and having struck a balance at the end of the former period, and no objection thereto being made by the parties, that method of stating the account is sanctioned by this court, — all payments during such executorship period, either to-the widow in excess of her proper allowances, or to the' heirs,, to he charged to them respectively, with interest from the dates-of .such payments to the end of said period.</p> <p>3. Under sec. 3959, Stats. 1898, a delivery of property hy one person to another having claims upon his bounty is not to be-deemed an advancement unless, at the time of such delivery, it is given that character either hy a declaration in the writing' malting the bestowal, or hy an acknowledgment in writing hy the recipient, or by an expression of the donor in respect to the-matter in charging the property to the donee.</p> <p>4. Thus, sums of money furnished hy a testator to his children in his lifetime and charged to them upon his hooks in the form, of loans should not he treated as advancements but as a part of the estate in which the widow, who had elected not to take-under the will, was entitled to share equally with the children, although the will provided that “all sums advanced and charged' hy me to either of my children . . . are to he deemed advancements to said child and to he taken into account” in the-distribution of the estate.</p>

<p> Highways: Injuries: Defect in side trach: Accessibility and degree of travel: Stone near track: Special verdict: Form: Double question: Evidence: Photographs. </p> <p>1. To entitle a traveler driving on a so-called side track of a highway to recover for injuries sustained by reason of a defect therein, it is not necessary that such track should have been “equally accessible” or have been “apparently as much traveled” as the main track. It is sufficient that it was reasonably accessible to travelers and appeared to have been recently traveled to a considerable extent as a part of the public highway.</p> <p>2. The form of a special verdict is very much in the discretion of the trial court.</p> <p>3. A question, submitted for a special verdict, as to whether a stone constituted a defect in the highway which was the proximate cause of an accident, was double, but being answered in the affirmative under instructions clearly explaining it, there was no prejudicial error.</p> <p>4. A stone may constitute a defect in a highway, though it is not within the traveled track, if it is so near such track that the wheels of passing vehicles driven with ordinary care are likely to come in contact with it, and is dangerous to such vehicles and persons therein.</p> <p>5. A witness familiar with a certain locality may state whether a photograph is a substantially correct representation of that place as it existed at the time of an accident, though he was not present when the photograph was taken.</p>

<p> ■Justices’ courts: Replevin: Affidavit: Mistakes in names of parties: Affidavit for removal: Parties: Clerical error in judgment. </p> <p>1. An affidavit for replevin, naming “Charles Oleson” as plaintiff, is not insufficient because signed “Charley Olson,” where there is no doubt, upon the record, that the person who subscribed the affidavit, as certified by the justice who issued the warrant, was the person whom such justice intended to name in the body of the affidavit.</p> <p>2. That an affidavit for replevin stated defendant’s first name as “Wimmiam,” while in tfie warrant and in fact it was “William,” is not fatal to the jurisdiction of the justice, where the defendant duly appeared in the action.</p> <p>3. An affidavit for the removal of a cause from a justice on the ground of prejudice, filed by one defendant for and on behalf of himself and the other defendants named in the title thereof, is sufficient for the removal, as against the affiant, whether such other defendants were parties to the action at the time or not.</p> <p>4. A mere clerical error in the findings and judgment in replevin, in mentioning the cattle seized on the writ and delivered to plaintiff as “six head” instead of seven, is not fatal to the judgment, where the true number appears by enumeration in the findings, and plaintiff is adjudged to be entitled to their possession.</p>