Volume 125 — Wisconsin Reports

<p>Appeal from a judgment of the circuit court for Ozaukee county: James J. Dick, Circuit Judge.</p> <p>■ This is an action by the executor of the will of Frederick O-rams, deceased. It is alleged that the deceased was in the defendant’s employ, and was engaged as a shoveler in transferring coal from boats to its coal docks and yards and thence to cars for shipment; that while so engaged for the defendant he was fatally injured on the night of October 5,1901, by a filled iron bucket of coal falling on him, causing him serious injuries, which made him helpless from that time until his death, which occurred May 11, 1902. It is averred that the injury was caused by defendant’s negligence, consisting in a failure to ¿provide a reasonably safe place, suitable machinery, and reasonably competent and careful servants for conducting its busi- ■ ness, and that such negligence was the proximate cause of the 'injuries to the decedent, for which damages are claimed. It ,• appears from the evidence that the deceased was so employed ■by the defendant, that he was injured, and died at the time alleged. The,facts surrounding the accident were substantially as follows: The defendant, a corporation, in conducting its business of transferring coal from boats to its yards and to cars, used a rotary derrick operated by steam power, and carried upon tracks resting upon a trestle of from seven to ten feet in height. This derrick was being operated by two men, one of whom attended the steam-power machinery, while the other at-leaded to the operation of the hoisting derrick for transferring the coal by means of buckets. The deceased was engaged in •shoveling coal into buckets, which when filled were raised to the end of the boom and swung to the place where their contents were dumped into chutes or cars. The derrick had all the necessary parts, and was constructed in a manner suitable and fitted for the accomplishment of its purpose. The buckets were raised by a cable passing over a wheel at the end of the boom, and thence to the hoist drum of the derrick at the other end of the boom, which was attached to the engine resting on the trucks, and the boom of the derrick was then swung into place for dumping the coal. In raising the buckets of coal to the end of the boom the cable would be drawn by coiling it on the hoist ■drum until the bucket was raised to the required height, when the buckets were held in place by a compression brake on the coil drum until released for dumping. The brake consisted of a steel brake band encircling the drum with hard wooden blocks bolted to the inside surface. The ends of the brake band were attached to an eccentric and a lever, and the brake was so constructed that when the operator pressed down upon a treadle on the operating platform the band was compressed, thus setting the brake' by pressing the blocks against the drum. One end •of the band is riveted to a threaded bolt, which is screwed into ■a threaded nut attached to the eccentric. This nut is forked to allow the eccentric to swing between the forks. The eccentric is fastened to the forked nut by a bolt held in place by a nut. As the blocks of wood inside the brake wear off, the resulting slack is taken up by drawing in the brake band by turning the forked nut on the threaded bolt attached to the band. These adjustments were required to be made from time to time in the operation of the derrick. To make the adjustments at the time in question the operator removed the bolt which fastened the forked nut to the eccentric, replaced it by a smaller one, and then attempted, by turning the forked nut, to take up the slack ■of the drum sufficiently to press the blocks firmly against the drum so as to cause the brake to lock. The men operating the brake were instructed to make the necessary adjustments and repairs, and were furnished with materials with which to make them. Such repairs and adjustments had always been made by the men operating the derrick. On the evening in. question, Bierman, one of the employees who operated the-brake on the hoist, found that the brake failed to hold the-buckets of coal in place when they were raised to the end of the boom ready to be swung into the proper place for dumping. It appears that this resulted from the wearing away of the blocks in the brake band, so that when the brake was set or locked it would not hold the weight of the buckets filled with coal — a weight of about 2,500 pounds. The operator’s (Bier-man’s) testimony — besides which there is none on the subject — is to the'effect that he observed that the eccentric did not have sufficient play in the forked nut to take up the slack, caused by the wearing aWay of the blocks, which insufficiency he attributed to the use of a three-quarter inch bolt fastening the eccentric and the forked nut together; that he therefore-replaced it with a five-eighths inch bolt, which so adjusted the eccentric and the forked nut that they operated properly; and that this readjustment was required to be made as other repairs in the usual operation of the derrick. After the change in bolts was made by him, he tightened the forked nut as much as, in his judgment, was necessary to take up the slack in order to lock the brake and properly operate the hoist, and he them directed his co-employee to start the hoist and lift the bucket filled with coal. After the bucket had been raised to the required height the brake was set as firmly as the machine allowed, but it failed to hold the bucket in place, ánd the bucket then dropped and struck the deceased, causing the injury complained of, and he then gave the forked nut another turn, and thereafter the brake operated properly without any further adjustment, and was continued in use in operating the derrick. It appears that Radlaff and Bierman had been engaged as operators on this and other hoisting derricks for a number of years prior to the accident. Aside from the facts and circumstances of this accident there is no evidence tending to show that they were incompetent to operate this machinery. It is without dispute that the servants operating the derrick were instructed and directed to make the repairs rendered necessary in the daily use of the appliances employed in the ordinary conduct of defendant’s business, and that defendant had furnished sufficient and proper materials for making them. The issues were submitted to a jury upon a special verdict and the evidence, and they found as follows: (1) That the hoisting machine and the brake attachment were out of repair and unsafe at the time of the accident; (2) that defendant, by the exercise of ordinary care, ought to have known and have discovered its defective and unsafe condition and have remedied it before the accident occurred; (3) that the deceased was not guilty of a want of ordinary care in not knowing of its unsafe condition before the accident; (4) that the persons employed to operate the derrick and brake attachment were not reasonably competent and careful servants; (5) that the defendant, by the exercise of ordinary care, ought to have known that the servants operating the derrick and brake attachment were not reasonably competent and careful persons; ■(6) that deceased was not guilty of a want of reasonable care in failing to know that such servants were not reasonably competent and careful; (I) that the deceased was not guilty of •any want of ordinary care contributing to the injury; (8) that defendant’s negligence was the.proximate cause of decedent’s injuries; and (9) that, if plaintiff was entitled to recover damages, they assessed and allowed the sum of $7,046. Upon this verdict the court awarded judgment in plaintiff’s favor. This is an appeal from such judgment.</p>

'O. Silverthoew, Circuit Judge. After a review of the equalization of the valuation for taxation of the various municipalities in Oneida county for the-year 1899, had upon the petition of the towns of Woodboro- and Hazelhurst in pursuance of sec. 1077&, Stats. 1898, said' towns, upon notice given the attorneys who had appeared before said commission for review, presented to the circuit judge-statements of tbeir expenses claimed to have been incurred in connection with the…

<p>Appeal from a judgment of the circuit court for Oneida county: W. C. Silveethoen, Circuit Judge.</p>

Appeals from a judgment of tbe circuit court for Milwaukee county: LawreNce W. Halsey, Circuit Judge. Tbis is an. action in equity brought by a trustee of certain real property to obtain from tbe court direction as to bis duty witb regard to tbe transfer of tbe title of said property.

Halsey, Judge. The action of Mary E. Eowell et al. v. John S. Eowell et al., being properly commenced in Dodge county, was duly changed to Winnebago county and there tried at great length. The judgment originally entered came before this court for review, and was affirmed, with slight modification, May 10, 1904 (122 Wis. 1, 99 H. W. 473), where the general character of the case is disclosed.

Mandamus to James J. Dick, judge of tbe circuit-court for Dodge county. Tbis is an original application to tbis court to change tbe venue in tbe action herein mentioned.

J. Eeuit, Circuit Judge. This is an action for tbe conversion of a quantity of grain, and farm property of tbe alleged value of $554.

J. Feuit, Circuit Judge. Appellant’s wife in due form of law was committed to tbe La Crosse county asylum for tbe chronic insane. Upon the ground that be was of sufficient ability to maintain her at such asylum but refused to do so, tbe trustees thereof petitioned tbe county court of such county for an order requiring him to pay $3 per week therefor from and after September 1, 1903, so long as she remained therein.

J. Feuit, Circuit Judge. This action was originally commenced to foreclose a subcontractor’s lien against the property of Charles H. Cremer for materials furnished to L. V. Huschka as principal contractor, with an additional cause of action stated in the complaint for recovery against Gremer on the ground that on the 31st day of December, 1902, after the completion of the building and payment therefor by him to Huschka, said Gremer, in consideration that the plaintiff would…

Aeeeae from a judgment of the circuit court for Juneau county: J. J. Ebuxt, Circuit Judge. This is an action for an accounting for moneys received by the defendant for the sale of a farm under an agreement between the parties.

'Appeal from a judgment of tbe circuit court for La Orosse county: J. J. Fbuit, Circuit Judge. This action was commenced July 31, 1903. Tbe complaint, as amended, alleges, in effect, that at tbe time of tbe commencement of tbe action, and for three years immediately preceding, tbe plaintiff was tbe owner of tbe 214.

M. Webb, Circuit Judge. This is an action to recover for merchandise sold. The plaintiffs are manufacturing chemists at Iowa City, Iowa, •and the defendant is a merchant at Manawa, Wisconsin. On March 31, 1903, the plaintiffs’ traveling salesman, one Bai-len, called on the defendant at his store at Manawa, and, after ■some negotiations, obtained the defendant’s written order for a quantity of perfumes and toilet preparations, amounting in all to $133.38.

M. Webb, Circuit Judge. Action for personal injuries. The complaint was to this effect: January 10, 1902, plaintiff, — riding in a buggy drawn by a span of horses, driven by him, — was a traveler on the public way, known as the Northport and Royalton road, in the town of Mulcwa, Waupaca county, Wisconsin, where it crosses defendant’s railway track in section 6, township 22. He was destined to a point requiring him to pass over the crossing.

M. Webb, Circuit Judge. Claim filed in county court -against estate of Catherine M. Breed, alleging that the respondent on March 23, 1898, entered into an oral contract with the deceased and her husband to work and care for them, and for the survivor if either should die, for which they jointly and severally promised to pay her the reasonable value of her services; that the deceased, Catherine M. Breed, died the following day, and that respondent performed such services…

M. Webb, Circuit Judge. Action to recover damages for personal injuries alleged to Rave been caused by tbe insufficient and defective condition of a sidewalk on one of tbe streets of tbe defendant, an incorporated city. It appears that on tbe 14th day of August, 1901, tbe plaintiff, while walking over one of tbe sidewalks on one of tbe public streets of tbe city, known as Main street, stepped into an opening in such walk, causing her to fall.

M. Webb, Circuit Judge. Tbe facts in this case are undisputed, and to tbe effect tbat tbe testator executed bis last will and testament October 13, 1902; that about three weeks afterwards his wife died at the age of eighty-four years; that November 27, 1902, the testator died at the age of eighty-oue years; that January 6, 1903, his will was admitted to probate; that he left, him ■surviving, no relative nearer than nephews and nieces; that four of his nephews and nieces…

Croix county: E. W. Helms, Circuit Judge. Action to abate a dam. The issues raised by the complaint, answer, and reply sufficiently appear from this abridgment of the findings: 1. Since September 16, 1898, plaintiff, then aged fifty years, has been in possession as tenant by curtesy of the land described in the complaint, and the title thereof subject thereto has been in his son Amos, then aged eighteen years,, and his daughter, Helena, then aged thirteen years. 2.

<p> Pleading: Statutory presumption from failure to deny allegation of partnership: Leases: Authority of partner: Evidence. </p> <p>1. Sec. 4197, Stats. 1898, raises an irrebuttable presumption tbat the allegations are true whenever the pleadings allege that the plaintiff or defendant or third persons were partners at any particular time.</p> <p>2. A complaint alleging that the defendants were partners “at all the times hereinafter mentioned,” and then proceeding to mention a leasing on a certain date, a taking possession by defendants pursuant to such lease, and an occupation by them until a certain amount of rent had been earned, does not limit the allegation of partnership to the date of making the lease, but notifies the defendants that plaintiff claims them to be asso-dated in partnership from the date of the lease for all the time mentioned.</p> <p>3. In sneh case the fact of partnership, during all the time involved in the earning of the rent claimed, having been alleged by the plaintiff and not denied in the manner required by sec. 4197, Stats.-1898, must be taken to exist, and this, added to the further facts found by the court, that the lease in question was made by defendants’ manager and that defendants had failed to pay a sum of rent earned thereon, entitled plaintiff to judgment.</p> <p>4. In such case, it appearing that defendants’ business was the editing and publishing of a newspaper, the leasing of premises in which to conduct such business was within the general scope of such business, prima facie authorizing one partner to bind the firm therefor.</p> <p>5. The presence of a seal on a lease for five years is wholly unnecessary. Such a lease, though sealed, stands upon the same footing as any other nonspecialty written contract, and therefore the fact that it was made on behalf of a partnership is open to extrinsic proof, although signed in the name of one partner.</p>

<p>Appeal from a judgment of the circuit court for Pierce county: James O’Neill, Judge.</p> <p>Action of replevin to recover pine lumber and logs. It appears that plaintiff, a corporation, maintains a boom and rafting works in the Mississippi river below Fort Snelling, Minnesota, and makes a business of gathering stray logs in the river, holding them, and accounting for them to the various •owners, under an agreement with them. It had been so engaged for a number of years prior to the time in question. On May 12, 1902, plaintiff’s employees had gathered sixty-three pine logs which had escaped from its boom and were floating in the river; they had brailed and landed these logs on the north side of the river, about four and a half miles above Prescott, Wisconsin, whére two of plaintiff’s employees — Murray and Knippenberger — held them in their custody. While they so held them, one James Ilackett dispossessed them of this brail of logs, floated them down the river to defendant’s mill, and sold them to him for $19.50. Defendant sawed about three quarters of the logs into lumber, and piled it, with •other lumber, in his yard. The officer recovered some of the unsawed logs, and took about 20,000 feet of lumber from piles in defendant’s yard containing some of the lumber'sawed out •of these logs. From the jury’s findings it appears that the logs so sawed yielded about 6,000 feet of lumber;- that defendant had been informed that the logs had been taken from ■plaintiff by Ilackett, and that he had wrongfully taken them; that, before he sawed them into lumber, defendant had been; informed that Hackett had acquired no title to them; and that the brail of logs, before sawing, was worth $120. It also appeared that plaintiff’s officer and agent were well acquainted with the marks on these logs, and found them on the logs and some of the lumber in defendant’s yard. The jury further found that plaintiff was lawfully in possession of the logs at the time Hackett took them from its agents and employees;, that Hackett wrongfully took the brail of logs from its possession, and wrongfully sold and delivered them to defendant;, that defendant had good reason to believe that Hackett had no title to the logs when defendant bought them from him; that,, before he sawed them into lumber, defendant was notified that plaintiff claimed ownership of the logs; that the brail of' logs, when manufactured into lumber, would yield 8,000 feet; that the value of the logs replevied by plaintiff was $30; that the value of the 20,000 feet of lumber was $360; and that the value of the lumber so replevied exceeded in value the logs so manufactured into lumber in the sum of $270. The jury also found, in answer to question No. 4 in the special verdict, that the defendant had not wilfully and indiscriminately intermixed these logs and the lumber manufactured out of them with his own logs and lumber, so that these logs and this-lumber could not be distinguished from his property. Upon motion by plaintiff the court changed the negative finding of the jury on this question to an affirmative one on the ground that the jury’s finding was not supported by the evidence. Before judgment, defendant moved the court to change the-answers of the jury to the first, second, and third interrogatories in 'the special verdict by striking out the answers-“Yes” to each of them, and by inserting the answer “No.’r The court denied this motion and defendant duly excepted to-such ruling. After the verdict had been framed in respect to-question 4 as directed by the court, the court awarded judgment upon the special verdict; the judgment being that plaintiff recover and bold tbe 2,000 feet of logs and tbe 20,000 feet •of lumber so seized by tbe sheriff under tbe writ of replevin, ■and for tbe costs of tbe action. This is an appeal from sucb judgment.</p>

<p>Appeal from a judgment of tbe circuit court for Shawano county: JohN GoodlaND, Circuit Judge.</p>

Tbis is an action to recover damages for personal injuries. The defendant demurred to the complaint upon tbe ground that it did not state facts sufficient to constitute a cause of action.

Tbis action was commenced before a justice of tbe peace, where issue was joined and trial bad and judgment was entered in favor of tbe defendant, from wbicb tbe plaintiff appealed to tbe circuit court.

Action in ejectment. Tbe issues litigated concerned whether plaintiff was the owner of the land in dispute under the patent title without efficient interference by a tax-deed title; and also the owner thereof under'such a deed acquired -at first by Margaret McHale in 1885 ; and whether his claim On such findings and others to the effect that plaintiff was-the owner of the premises in controversy and entitled to recover the same, subject to whatever rights defendant Kieper…

Complaint alleged that plaintiff was, by virtue of contract with James Culbertson, the original defendant, the owner of certain stovewood and logs cut from and lying upon certain described lands, of the value of some $72, and that said Culbertson unlawfully converted the same.

This is an appeal from a judgment against defendant in an action for false imprisonment. The complaint charges. that defendant maliciously caused the arrest and imprison•ment of the plaintiff without probable cause and without warrant or process and caused him to be taken to the police station and searched by a police officer December 8, 1902, at Oshkosh, Wisconsin.

<p> ‘Criminal law and, practice: Bribery: Evidence: Trial: Reception of evidence: Immaterial error: District attorney: Argument to jury: Instructions to jury: Witnesses: Reputation. </p> <p>1. Tlie ordinance of a city regulating buildings provided that the floor areas undivided by brick walls should not exceed a specified area. Provision was therein made for a building inspector, and that, in matters pertaining to the official action of the inspector, an arbitration should be allowed to persons feeling aggrieved by his official action in cases where he was vested with discretionary powers and where his action pertained to the security or insecurity of buildings, provided application was made therefor within forty-eight hours after written notice of the inspector’s decision had been given. Application having been made to such inspector for a permit to erect a building, it was •orally rejected because the plans and specifications obviously violated the building regulations, in that the floor areas within the specified walls were largely in excess of what was permitted, and this was communicated to the applicant. The evidence tended to show that thereafter the inspector suggested to the .applicant that an arbitration might be undertaken, and that it would require a certain sum of money to secure proper action. More than forty-eight hours thereafter application was made for an arbitration, and such proceedings were had therein that a permit was issued, followed by the payment of the money the ■same day. Held:</p> <p>(1) That passing upon the application for the permit involved no exercise of discretion by the building inspector, and therefore no legal basis existed for the arbitration.</p> <p>(2) The failure to give written notice of the decision or order •of the inspector denying the application, and failure to apply therefor within forty-eight hours after actual notice, were irregularities fatal to the legality of the arbitration.</p> <p>(3) The arbitration proceedings could not be relied upon as establishing, as matter of law, that the inspector had no'legal authority or power to act upon and issue the permit in question.</p> <p>(4) It was for the jury to pass upon the facts and circumstances of the attempted arbitration as material evidence, irn connection with the other evidence in the ease.</p> <p>2. In such case the evidence, stated in the opinion, is held to sustain-a verdict finding the building inspector guilty of bribery.</p> <p>3. When, following immediately upon a ruling excluding the answer to a question, the witness furnishes substantially the same in-, formation sought in the question excluded, such ruling is not prejudicial error.</p> <p>4. Where, in a criminal action, after a ruling striking out a statement made by a witness as. improper cross-examination, the same fact is adduced by the testimony of the accused, the record is freed from any error committed in striking out the statement.</p> <p>5. In a criminal action the remarks of the prosecuting officer in his-argument upon the evidence to the jury, and the remarks of the court in ruling on exceptions thereto, stated in the opinion, are held not prejudicial to the defendant.</p> <p>6. In a criminal prosecution for bribery, a requested instruction: “Where evidence is offered which is susceptible of two constructions, one of which tends to guilt and the other to innocence, it is the duty of the jury to adopt the latter,” does not embody a correct rule for the guidance of the jury in considering: the evidence, since it amounts to a direction to the jury that any evidentiary fact submitted to their consideration must be considered as tending to prove innocence if it «an possibly be so-construed.</p> <p>7. In a criminal prosecution for bribery a requested instruction: “You cannot convict the defendant on theory, suspicion, or speculation; and, unless you are satisfied beyond a reasonable doubt that defendant accepted said sum of money under an agreement or arrangement by which he was to issue or procure the issue of the permit in consideration of the defendant’s receiving said sum, your verdict shohld be ‘Not guilty,’ ” while not in form and words incorporated in the charge given, is held to have been embodied in the instructions stated in the-opinion.</p> <p>8. In a criminal prosecution for bribery the court refused a requested’ instruction: “Unless you find from the evidence that the check for $1,500 was given to the defendant under an agreement or arrangement with G-. G. P. by which the defendant, in his official capacity, in consideration of his receiving the $1,500, should' issue or cause to be issued the building permit, your verdict should be ‘Not guilty,’ ” and gave the following: “But if you find from the evidence that the check for $1,500 was given and used' for the purpose of procuring a withdrawal of an ordinance from the common council, and not for the purpose of influencing the judgment, opinion, or action of the defendant in his ■ official capacity, then your verdict should he ‘Not guilty.’ ” Held, that the difference in phraseology between the requested and the given instruction did not have the effect of casting the burden of proof upon the accused as to the proposition involved, in view of a part of the charge which explicitly informed the jury of the legal presumption of innocence and that the burden of proving guilt rested upon the state.</p> <p>9.In such case it appeared that the portion of the charge given in the last paragraph was a part of the statement wherein the court properly defined the offense for which the accused was on trial; gave the necessary facts that must he found to exist, beyond a reasonable doubt, as constituent elements of the offense, to warrant conviction; and then added that if the jury found the facts embodied in that part of the instruction, and which embodied what the accused averred by way of specific defense of fact to the claims made by the state against him on the evidence, they must acquit. Held, that such excerpt from the charge, when elucidated by reference to its context, could in no way mislead the jury or prejudice the accused.</p> <p>10. In a criminal prosecution for bribery, in a part of the charge excepted to, the court informed the jury that, before they could find the defendant guilty, they must find from the evidence, beyond reasonable doubt, that the accused, at the time and place charged, accepted the check; that it was a thing of value; and that it was given and received under an express or implied agreement or understanding to influence defendant in his official action. The statement of the grounds upon which a conviction might be based included all the elements of the offense charged in the indictment. The court also used the word “corrupt” in stating the charge as preferred in the indictment and in defining the offense. Held, that the charge was sufficiently explicit and complete although it omitted the words “corrupt intent.”</p> <p>11. Such element of corrupt intent is not eliminated by a concluding paragraph: “If it was so given and received, it is immaterial whether or not it did or could, in fact, influence him in- his official action.”</p> <p>12. In a prosecution for bribery the court, among other things, instructed the jury: “Evidence as to the good reputation of the defendant for honesty and integrity was received, and you should consider such evidence, together with all the other evidence in the case, in arriving at your verdict. But if, from all the evidence in the case, you are satisfied of his guilt beyond a reasonable doubt, then it is immaterial what Ms reputation has heretofore been as to honesty and integrity.” Held:</p> <p>(1) Such instruction was not objectionable as leading the jury to disregard this defensive evidence of the good reputation of the accused.</p> <p>(2) Neither did it withdraw such evidence from the consideration of the jury.</p> <p>(3) Neither did it discredit such evidence as immaterial proof in the case.</p>

<p> Deeds: Construction: Covenants: 'Warranty: Peaceable possession: Breach: Tax lien: Evidence: Eviction: Pleading: Denial: Partial defense: Demurrer. </p> <p>1. Whether covenants of seisin and freedom from incumbrance, strictly speaking, run with, the land (a point not decided), a warranty to the original grantee, his heirs and assigns, of peaceable and undisturbed possession, does so.</p> <p>2. A warranty of peaceable and undisturbed possession is breached by an eviction which deprives the grantee of the possession so warranted, and gives him a right of substantial recovery limited to the original purchase price of the land.</p> <p>3. A tax on land for 1893, which has been assessed, levied, and warranted to the collector of taxes, became a lien and incumbrance upon the land prior to February 14, 1894, the date of a conveyance thereof, and any eviction of. the grantee therein, or disturbance of his possession in lawful pursuance of rights arising under that lien, constitutes a breach of the covenants of such conveyance warranting peaceable and undisturbed possession.</p> <p>4. Defendants conveyed to D. with, full covenants of warranty, and D. conveyed to plaintiff with like covenants. At the date of defendants’ conveyance there was an outstanding unpaid tax which subsequently ripened into a title under which plaintiff was evicted. In an action for breach of the covenants of peaceable and undisturbed -possession, an allegation that D. had agreed to pay the tax was held fiot to constitute a defense; hence a demurrer thereto was properly sustained.</p> <p>5. In an action for breach of covenants of peaceable and undisturbed possession a denial of any disturbance of plaintiff’s possession, though made only because of lack of knowledge or information sufficient to constitute a belief, raises an issue, which renders admissible evidence in contradiction of plaintiff’s allegation of eviction.</p> <p>6. In such case the complaint alleged that the premises had been at all times vacant and unoccupied, which was nowhere admitted by the answer and was met by a general denial. Held, on demurrer, that an admission of the answer that a judgment quieting title in the tax-title grantee had been entered did not admit an eviction.</p> <p>7. In such case an allegation of the answer that plaintiff had in fact acquired, by purchase, the tax title constituting the incum-brance, sets up a good defense to the extent of the payment, for plaintiff could recover only the damages which he had in fact suffered, and, if he had chosen to save himself from complete eviction by buying in the outstanding claim, he could not recover as for a total eviction.</p> <p>8. Where allegations of an answer constitute only a partial defense to the cause of action, which being resolved in defendant’s favor defeats plaintiff’s right of recovery to the extent demanded, a general demurrer, should be overruled.</p>

<p>Appeal from a judgment of the circuit court for Grant county: Geoege Clemehtson, Circuit Judge.</p> <p>This is an appeal from the judgment of the circuit court for Grant county affirming the final order of distribution of' the county court of said county in the matter of the estate of one Mary Huntington, who died testate prior to April, 1897. It appears that the will of the testatrix was probated December 27, 1897, and letters of administration were granted to John P. Huntington; that the estate amounted to from $40,000 to $50,000, and was by the will divided into eight equal parts, one of which parts was given to each of six of' the living children of said testatrix (appellant being one of said children), one of said parts to two grandchildren, who were the heirs of a deceased child of the testatrix, and one of said parts to Sarah Sherbon, to hold during her life, and at her death to be divided among the children and grandchildren of the testatrix. It further .appears that in March, 1884r the appellant and her husband, H. H. Eitch, both of whom lived in Sac county, Iowa, gave to the deceased a mortgage upon land in Sac county owned by the husband to secure the-payment of a note given by the appellant to the deceased, amounting to $1,385.33, with eight per cent, interest; that this note and mortgage came into the hands of the defendant, as executor of the estate, and have ever since remained there; that in July, 1902, Henry H. Fitch brought an action in the district court of Sac county, Iowa, against the respondent, as executor, the appellant, and all other legatees and dev-isees under the will in question, praying that the mortgage he discharged of record because the note and mortgage had been canceled and receipted in full and presented as a gift by the testatrix, in her lifetime, to the appellant; that the original notice in this action (equivalent to a summons under our practice) was personally served on the appellant and by publication upon all the other defendants; that no appearance was entered in said action by any of the defendants; and that the court finally adjudged that the note and mortgage had been discharged and satisfied, and that the mortgage should be, and was, discharged of record. It further appeared that, when the respondent executor filed his final account of his trust, he charged the amount of this note and mortgage against the appellant as a payment upon her distributive share, whereupon the appellant filed her petition asking that the said note and mortgage be stricken from the inventory of the estate, and that it be adjudged to have been paid, canceled, and discharged. Issue was taken upon this petition, and the matter was heard as a part of the hearing upon the executor’s final account in the county court, which court rendered judgment restating executor’s account, and holding that the said note and mortgage was a valid obligation on her part and was a part of the estate, and that the ■same should be charged to the appellant. The judgment also assigned one eighth of the estate absolutely to Sarah Sherbon, with no provision protecting the rights of the remaindermen. From this judgment, appeal was taken to the circuit court. On the trial of this appeal the appellant admitted that the account of the executor was correct except as to three items, to wit, an item of $100 paid to Miss Sherbon for her expenses in attending as a witness from California in the matter of the controversy raised by the petition of Elizabeth Fitch; also an item of $321.25 paid to Burns & Ellis for attorney’s services and expenses in settling the estate; also an itém of $3,336.48 charged by the executor against the appellant, béing the amount due upon said note and mortgage. Upon the trial substantially the only evidence offered on either side was the record of the action brought in the district court of Sac county, Iowa, together with certain extracts from the statutes and certain decisions of the supreme court of the state of Iowa. The judgment of the county court was affirmed by the circuit court, and the plaintiff appeals.</p>

Appeals from a judgment of tbe circuit court for La Crosse county: J. J. Fkuit, Circuit Judge. This is a creditors’ action to wind up tbe affairs of tbe Bank of Viroqua, a corporation. Tbe Bank of Viroqua was organized by Jeremiah M. Rusk and William F. Lindemann on December 13, 1890, under articles of incorporation wbicb were recorded December 30, 1890, in tbe office of tbe register of deeds for Vernon county.

M. Webb, Circuit Judge. In April, 1901, plaintiffs owned and were carrying on a small farm in Lincoln county, Wisconsin, and kept thereon horses, twenty-one head of cattle, and farm machinery. The land was worth $2,500, the cattle $615. At that date defendant lived in the city of Stevens Point, Portage county; was mainly a banker and real-estate speculator.

<p> Constitutional law: Statutes: Appropriation for private purpose. </p> <p>Ch. 337, Laws of 1903, appropriated a sum of money to relators, who, as subcontractors, furnished- material to the principal contractor engaged in building a state institution. Th’e principal contractor fully performed his contract and was paid in full for all the work and materials covered thereby, hut failed, to-the extent of the appropriation, to pay relators, and became-bankrupt. Held:</p> <p>(1) Ch. 337 did not come within the letter of the prohibition of sec. 26, art. IV, Const.</p> <p>(2) The appropriations made by said ch. 337 were for purely private purposes and hence unconstitutional and void.</p> <p>[(3) Whether relators were public officers, agents, servants, or contractors of the state, not decided.]</p>

<p> Master and servant: Negligence: Personal injuries: Contributory negligence: Assumption of rish: Damages: Contracts of infants: Evidence. </p> <p>1. In an action by an employee for personal injuries alleged to have been caused by the dangerous condition of a sprocket chain operating machinery, the evidence, stated in the opinion, is held to require the submission to the jury of the questions of contributory negligence and assumption of the risk.</p> <p>2. In an action for personal injuries by one who was a minor at the time of injury, it is error to rule out evidence of his indebtedness for physician’s services and nursing during his illness resulting from the injury, since these hills were for necessaries for which he was liable.</p> <p>3. In an action for personal injuries alleged to have been caused by a defectively fastened bolt, it is error to exclude proof of the usual and customary method of fastening such a bolt under the circumstances in evidence.</p>

<p>¡Replevin: Evidence: Hearsay: Res gestss: Trial: Objections and exceptions: Opinion evidence: Values: Witnesses: Competency: Impeachment.</p> <p>1. A witness wlio was present and lieard the conversation which occurred when defendant gained possession of a horse which plaintiff claimed to have purchased from defendant, hut which was in V.’s possession, was ashed to state what he then heard said, and whether V. made any statements as to the horse being his. Held, that the questions called for mere hearsay evidence and were properly excluded.</p> <p>2. In an action of replevin to recover a horse it appeared, among other things, that at the time the defendant gained possession of the horse from V., a third person-who had the custody of the horse, the defendant had a mare which had been turned over to him for the purpose of selling and using the proceeds in payment of a debt due him for the horse. This mare he had placed in the custody of B., and he gave V. an order on B. for the mare. Held, that statements made by V. to B. when he presented the order and received the mare were hearsay and not part of the res gestas.</p> <p>•3. Where a witness, in answer to a question as to what was the right value of a horse, $200 or $175, said “I-don’t know,” and after the answer was given counsel said “I object,” and the court said “The objection is overruled,” even if the objection could be regarded as a motion to strike out the answer, the ruling as a denial thereof, and the denial error, such ruling is not harmful.</p> <p>■4. Evidence that a woman was accustomed to do business, carry on the responsibilities of a farm, act for herself in buying and selling horses, and agreed on the value of one purchased from defendant, sufficiently establishes her competency to testify on the question of the value of a horse.</p> <p>•T>. Where defendant denied that he had employed an officer to go with him in connection with enforcing a certain chattel mortgage, evidence, stated in the opinion, is held competent as tending to impeach defendant.</p>

<p>Appeal from a judgment of the circuit court for Green county: B. E. DuNwiddie, Circuit Judge.</p> <p>Appeal by defendant from judgment granting divorce at the suit of the wife on the ground of cruel and inhuman treatment and habitual drunkenness and dividing the property of the parties between them. The facts sufficiently appear in the opinion.</p>

<p> 'Adverse possession: Continuity of possession: Evidence. </p> <p>1. Where the claim of title to lands by adverse possession is that such title was acquired by actual continued occupation under a claim of title exclusive of any other right, and adverse to any other claimant, sec. 4213, Stats. 1898, limits such right of adverse possession to “the premises so actually occupied and no other.”</p> <p>2. In an action to establish title to land founded on a claim of twenty years’ actual continued occupation under claim of title exclusive of any other right, the evidence, stated in the opinion, is held to show that the claimant’s possession had been sufficiently interrupted before the running of the statutes of limitation to defeat the action.</p>

<p>Habeas corpus: Jurisdiction: Errors reviewable.</p> <p>1. It appeared from the record in a habeas corpus proceeding that petitioner had been arrested, tried, convicted, and sentenced for an offense; that the counsel assigned by the court to defend petitioner specifically waived the presence of petitioner in court during the impaneling and swearing of the jury; that thereafter petitioner and his counsel appeared in court, accepted the jury as impaneled and sworn, and proceeded with the trial; and that during the progress of the trial, and at the reguest of petitioner’s counsel and in the presence of petitioner, the court excused one of the jurors, and the trial, by consent of all parties, proceeded with eleven jurors. Held, that whether any error was thereby committed was not before the court on habeas corpus and could not be reviewed in that proceeding.</p> <p>2. Where accused is brought before a court on an information charging him with an offense of which the court has jurisdiction and to which he pleaded not guilty, that court has jurisdiction to try him upon the charge made and proceed to judgment and sentence, and, if the court therein committed error, it was error within its jurisdiction and such error cannot be reviewed on habeas corpus.</p> <p>3. Unless there is such want of jurisdiction in the court as to render its judgment void, a person convicted and under sentence for an offense cannot be relieved on habeas corpus, but resort must be had to a writ of error.</p> <p>4. A writ of habeas corpus does not reacli beyond a commitment to the proceedings leading up thereto, where the person in custody is detained by virtue of the final order or judgment of a court having jurisdiction of the subject matter and of the person.</p>

<p> Pleading: Joinder of causes of. action: Vendor and, purchaser: Ownership in vendee: Lien of vendor: Landlord and tenant: Right to possession: Action by vendee for cutting timber: Delivery of deed carried bach by relation: Cause of action: Demurrer. </p> <p>1. Two causes of action, one for obtaining reformation of a land contract by the correction of an alleged misdescription of the premises intended to be covered, and the other whereby the plaintiff asserts the right to recover damages for injuries done to the freehold by the severance of trees by the defendant after the making of the contract and before the conveyance by deed, may be joined in one complaint and appropriate relief granted in one judgment.</p> <p>•2. Under an ordinary land contract the purchaser is regarded in law as the equitable owner of the land purchased, and the vendor holds the legal title to secure the payment of the unpaid purchase money.</p> <p>.3. A land contract providing that the purchaser should pay all taxes from its date, keep up the improvements, and, whenever default in payment of the purchase, money should occur, hold the premises from the date thereof as tenant at sufferance, creates the relation of vendor and vendee and not that of landlord and tenant.</p> <p>■4. Under such contract the right of possession is in the vendee, and, as equitable owner, he has the right to maintain trover or re-plevin for timber cut upon the land without his consent.</p> <p>'5. Where a deed is executed and delivered upon full payment of the consideration specified in a preceding land contract and in pursuance thereof, the deed relates back to the contract, and the title is considered, as between the parties, as having vested in the grantee from the time the contract was made.</p> <p>■6. A complaint alleging a land contract between the parties, the full payment of the consideration, delivery of a deed pursuant to the contract, and that the vendor between the dates of the contract and deed cut and removed timber from the land con-, veyed, states a cause of action against the vendor.</p>

<p>Appeals from judgments of the circuit court for Dodge county: James J. Dick, Circuit Judge.</p> <p>This is a consolidated action to recover upon three standard fire insurance policies issued by the defendant companies, respectively, on a stock of groceries -which was owned by the plaintiffs in the city of Beaver Dam, and destroyed by fire a little after midnight on the morning of June 21, 1903. The defenses relied upon were (1) that the plaintiffs were guilty of fraud and false swearing, after the loss, in including in their statement of property destroyed goods that had never been received and were not in fact in the store at the time of the fire; (2) that the plaintiffs failed to take an annual inventory, as they had agreed to do in their applications and as specifically required by the terms of the De Forest policy; (3) that, as to the De Forest Insurance Company, they failed to keep their inventory hook in the safe, as required by the policy. The case was tried by the court without jury. The -court found against tho contentions of the defendants on all points; also that the total value of the property destroyed was $5,469.22, which was covered by insurance, amounting to $5,700; to wit, $1,200 in the Theresa Company, $1,500 in the De Forest Company, $1,500 in the Waterloo Company, and $1,500 in the Mayville Mutual Insurance Company. Judgment was' rendered against the Theresa Company for twelve fifty-sevenths of the amount of the loss, and against each of the other two companies for fifteen fifty-sevenths of the loss, and the defendants each appeal.</p>

<p>Appeal from, county court: Perfecting of appeal: Amendments: Irregularities: Waiver: Changing nature of cause of action: Estates of decedents: Claims: Action, at law or in equity? Sivb- • rogation: Limitation of actions: Husband and wife.</p> <p>1. On appeal from the county to the circuit court, submitting to a trial on the merits waives all defects in the appeal not prior thereto brought to the attention of the circuit court and duly insisted upon.</p> <p>:2. Under sec. 4031, Stats. 1S98 (providing that any person aggrieved by a decision of the county court “may appeal therefrom to the circuit court ... by filing a notice thereof with said county court within sixty days from the date of the act' appealed from, . . . together with such undertaking as is required” in sec. 4032), a substantial compliance with the words of the statute-is sufficient.</p> <p>3. The prime essential in taking an appeal from the county to the-circuit court is the filing of a notice of appeal within the time limited therefor, and, that being done, the filing of the bond' afterwards operates to perfect the appeal.</p> <p>4. It is not permissible to entirely change the nature of a cause of action by amendment, — substituting one in equity for one at law, or one on contract for one sounding in tort, or the contrary.</p> <p>5. A claim filed in the county court by a widow against her deceased husband’s estate for a sum of money alleged to have been loaned him is in the nature of an action upon contract, and, by an appeal to the circuit court, it there becomes an action pending for legal relief- — an action to recover upon contract.</p> <p>6. In such case it appeared from the testimony taken in the circuit court, among other things, that claimant had paid a mortgage-on the homestead of herself and husband, placed thereon by another before the title came to the husband, which the husband' had assumed and agreed to pay. There was no evidence that the property conserved was possessed by the husband at the time of his death, either in the form it was in at the time of the payment of the mortgage or in any other. The trial court made findings in accordance with such ..testimony, and, after allowing her claim as filed in the county court to be amended to correspond with such findings, concluded that, by right of subrogation, plaintiff’s claim was a legitimate charge against her deceased husband’s estate, and ordered judgment accordingly. Held:</p> <p>(X) If such evidence established a cause of action in claimant’s favor, it was purely equitable to recover in the right of the mortgagee to whom the money was paid.</p> <p>(2) Such equitable assignment went no further than the-mortgagor’s interest in the property, the debt itself being merely kept alive so far as necessary to support the lien, not so as to constitute in the hands of the plaintiff any legal claim whatever.</p> <p>7. Subrogation exists entirely independent of contract relations. It is wholly a creature of equity, — a mere means by which the substantial ends of justice may he accomplished.</p> <p>8. If a person pays off a lien claim on property for which he is not,. but another is, liable, so that such other would derive tho benefit thereof if his interest in the property were entirely relieved' from such lien, and such person acts in the matter, not as a mere volunteer, but to protect his own interest in the property,, such interest being legal or equitable, and either present or contingent, equity immediately operates in fayor of such person-hy preserving such lien claim to him with the same right to enforce it as the original possessed, to the extent that such person would otherwise suffer loss to such other’s gain.</p> <p>9.If a person paying off such lien is secondarily liable for the debt, there springs out of the transaction an implied promise by the-, one primarily liable to repay the. money. This does not rest on the law of subrogation, but is enforcible as a legal liability.</p> <p>10. A married woman, by reason of her interest in a homestead the-title to which is in her husband and which is incumbered by a mortgage to secure his debt, who, without request by him, but solely to protect her homestead rights, pays off the incum-brance, thereby becomes subrogated to the rights of the mortgagee.</p> <p>11. While the statute of limitations does not run on causes of action growing out of transactions between husband and wife, this is-not extended to a cause of action not so arising and upon which the statute of limitations commenced to operate before the husband and wife became adversaries in respect thereto. Second Nat. Bank v. Merrill, 81 Wis. 151; Fawcett v. Fawcett, 85 Wis. 332, and Brader v. Brader, 110 Wis. 423, followed, but limited and explained.</p> <p>12. In 1870 a married woman made payment of a mortgage on the homestead occupied by herself and husband, because of threatened foreclosure. The husband died in 1902, and the widow filed a claim for the money so paid against his estate. Held, that the claim was barred, since the limit of the right of the mortgagee to enforce his demand was the limit of the claimant’s right, and, the statute of limitations having commenced to run against the mortgage before she became the equitable owner of the lien, such devolution did not interrupt its running in her favor.</p> <p>13. Where once the statute of limitations has commenced to run on a cause of action, no circumstance not expressly provided by statute will interrupt it.</p>

<p> Building contracts: Architects: Conditions precedent: Mechanics’ liens: Description of premises: Destruction of huilding: Enforcement of lien. </p> <p>1. Where complete performance of an entire contract to do work upon a building to be supplied by the owner or his employee is prevented by the total destruction of that building, such completion is excused, and the contractor may recover pay at the contract price for the portion of the work done.</p> <p>2. An agreement that an architect’s certificate shall be a condition precedent to a contractor’s right to payment is deemed and construed to embody the condition that the architect shall exercise his function as arbitrator honestly and in good faith.</p> <p>3. One who performs his contract may recover his pay therefor, notwithstanding an agreement that a specific architect’s certificate shall be a condition precedent to payment, if it appear that he is disabled from obtaining the architect’s certificate by collusive, fraudulent, arbitrary, or unreasonable refusal by the architect, or if the issuing of the certificate is prevented by act of the owner.</p> <p>4. Where, after a contractor had nearly completed the plumbing work on a building in process of construction and repair by the owner, the building was destroyed by fire, and, upon presentation of the contractor’s final bill to the architect, whose certificate was stipulated to he a condition precedent to payment, the architect assured the contractor that his work was all satisfactory except in a few unimportant details, but refused to give him a certificate, such conduct of the architect is arbitrary and unjust, and, in' the legal- sense, fraudulent.</p> <p>5. In such case, the fact that the owner had by withdrawal of the contract from the architect disabled him from exercising his function, while it might absolve the architect from any conscious or intentional wrong or fraud against the contractor, yet, being the act of the owner preventing the issue of a certificate, it excused the contractor from producing the architect’s certificate.</p> <p>6. Where a claim for a mechanic’s lien and the complaint in an action to foreclose the same described a twelve-acre tract as that on which the lien was demanded, while the evidence showed that only one acre thereof could be so subject, the statutory requirement of a claim for lien describing the land is satisfied.</p> <p>7. In such case it is the duty of the trial court to ascertain, by proof, one acre within the tract so claimed which should contain the building and be subjected to the lien.</p> <p>8. Where a mechanic’s lien has once" attached to land it is not detached by the destruction of the building which the owner has impliedly contracted should remain in existence to enable the lien claimant to complete his contract.</p>

<p> .Ancient highways: Boundary lines: Encroachment: Evidence: Injunction. </p> <p>1. Where a highway has been laid out, worked, and used as such under the original survey, and fenced, evidence of surveys made nearly sixty years afterwards, stated in the opinion, is held to he entitled to little weight to establish that the fence on one side of the road had not been maintained upon the line ■of the original survey.</p> <p>2. The laying out of a highway upon the line, of the original survey is a practical construction and adoption of such survey.</p> <p>3. Where the monuments marking a survey for a highway plainly indicated its lines at the time it was laid out, the lines bounding such highway having been laid with reference to the original survey, with the aid of all monuments then existing and marking out the survey, and fences having been maintained upon; these boundary lines for thirty years, these facts constitute a. practical location of the right of way upon the lines of the original survey, and long-continued occupation under such location, together with recognition of monuments and boundaries and acquiescence in boundary lines, cannot be overborne by indefinite- and uncertain evidence of surveys tending to establish different boundary lines.</p> <p>4. In such case the evidence, stated in the opinion, is held to warrant enjoining an encroachment upon the limits of a highway-laid out and surveyed in 1844.</p>

<p>'Appeal from, a judgment of tbe circuit court for Dodge county: B. E. DuNwiddie, Judge.</p> <p>This is an action to recover damages for tbe death óf tbe plaintiff’s intestate, July 27, 1902, while in the employ of tbe defendant in breaking iron ore in certain bibs into which tbe same bad been dumped and loaded from tbe railway cars for storage, and which bins were about ninety feet long and sixteen feet wide, and formed by partition walls running cast and west and terminating against a stone wall on tbe east and attached to tbe trestle bent on tbe west, and which bins were situated in rows side by side under tbe elevated'' railway tracks, supported by certain trestleworlc known as “trestle bentsthat such death was caused by tbe .partition in tbe bin in wbicb tbe deceased was at tbe time working .giving way and causing the ore in tbe south adjoining bin, together with tbe materials in such partition, to fall with •great force upon him, and thereby causing him great injuries, and then and there killing him. Tbe answer consists of numerous specific denials. At tbe close of tbe trial tbe jury returned a special verdict to tbe effect: (1) That tbe partition wbicb gave way was not constructed by tbe defendant in a reasonably safe manner; (2) that said partition was not maintained in a reasonably safe condition by tbe defendant; (3) that such condition was known to tbe defendant or ought to have been known to tbe defendant; (4) that such condition was tbe proximate cause of tbe death of tbe deceased; (5) that they assessed the damages sustained by tbe widow of tbe deceased at $1,500. Erom judgment entered thereon for tbe amount stated in favor of tbe plaintiff, with costs, tbe defendant appeals.</p>

<p> Highways: Trespass: Abutting owners. </p> <p>1. Plaintiff liad a private ditch running from Ms close to connect-with a ditch, in the highway in front of his premises. Defendant caused his cattle to he driven to the highway ditch for the purpose of drinking, and they trampled down the banks of the ditch and destroyed the outlet of plaintiff’s private ditch so as to prevent the free flow of water therein, which caused water to back up onto plaintiff’s, premises. Held, that defendant’s act was a technical trespass, since it was not the use of the highway for travel, nor a mere incidental turning aside of the cattle to drink as they were being rightfully driven along the highway.</p> <p>2. Such acts are not authorized by sec. 1347c, Stats. 1898 (providing that the general public shall have the right to use and take the water from any spring, creek, or running water that may be-found running in or across the limits of any highway).</p>

Hastings, Circuit Judge. Action for personal injuries suffered by plaintiff in stepping into a bole broken out of a sidewalk wbicb bad been •covered by a tbin board insufficient to support plaintiff’s weight. Tbe sidewalk consisted of four longitudinal twelve-incb planks, of wbicb tbe one nearest tbe fence bad disappeared at tbe particular place in question, leaving only three.

HastiNGS, Circuit Judge. On the 18th day of June, 1898, the plaintiffs, planning to be relieved from the burdens incident to conducting their farming affairs, and to provide for their support during their old age, entered into an agreement with Nred Krause, their son, one of the defendants, whereby they deeded their farm to him in consideration of his agreeing to furnish them, during their joint lives certain Articles and money yearly; to allow them the use of a certain…

Hastings, Circuit Judge. Tbe complaint in tbis action charges tbat on tbe 15tb day of May, 1901, and thereafter, the plaintiff, at tbe special instance and request of tbe defendant, performed services in tbe sale of defendant’s farm located in Brown county, Wisconsin, which services were worth $159.15. Tbe answer is a general denial.

HastiNgs, Circuit Judge. This is an action to recover $159.55 paid by the plaintiff to the defendant February 5, 1903, as the first annual premium for a policy of insurance upon the plaintiff’s life of $5,000, on the twenty-payment life plan, to be issued by the defendant under the circumstances hereinafter named, with interest thereon from the day named.

Hastings, Circuit Judge. This is an action for the breach of a contract for the sale- and delivery of a quantity óf lumber. The plaintiffs are box manufacturers doing business at Green Bay, and the defendant is a corporation manufacturing lumber at Sagola, Michigan. On the 4th of September, 1902, the parties entered' into the following written contract: ■ “GREEN Bay, Wisconsin,. September 4, 1902.

Hastíeos, Circuit Judge. The following is the substance of the complaint: First ca-use of action.

HastiNgs, Circuit Judge. Action upon a bond conditioned for tbe reimbursing to tbe plaintiff such pecuniary loss as be might suffer by any act of larceny or embezzlement on tbe part of one O’Brien, bis employee; tbe complaint alleging an embezzlement to tbe amount of $470.

Ebeoe to review a judgment of the municipal court of Milwaukee county: A. C. Beazee, Judge. Plaintiffs in error*, William Hanley and Joseph Trost, were arrested, tried, and convicted upon the complaint of Paul Lehnhagen, made on August 28, 1903, before the district court for Milwaukee county, charging them with malfeasance in office by wilful extortion, wrong, or oppression.

Ebeoe to review a judgment of the circuit court for Wau-kesha county: James J. Dick, Circuit Judge. The accused was convicted of murder in the third degree, and sentenced to imprisonment in the state prison at Wau-pun for the term of fourteen years. He complains of error..

<p>EbboR, to review a judgment of tire municipal court of Milwaukee county: A. C. Brazee, Judge.</p>

Eeboe to review a judgment of tbe circuit court for Outa-gamie county: Joi-iN GoodlaNd, Circuit Judge. Tbe plaintiff in error was prosecuted and convicted of the-crime of arson and brings writ of error.

Ebeoe to review a judgment of the municipal court of [Milwaukee county: A. 0. Brazee, Judge. Plaintiff in error was convicted of having committed the offense of burglarizing the house of Harriet L. Gutter. She was absent therefrom continuously between twilight of August 22, 1904, and the afternoon of August 25th thereafter, no one being left in charge thereof.

Ebeoe to review a judgment of tbe circuit court for Milwaukee county;: OrreN T. Williams, Circuit Judge. Tbe plaintiff in error stands charged with tbe offense of' bribery as defined in tbe statutes of tbis state. He was arrested, brought before tbe court, and prosecuted to conviction and judgment in tbe circuit court for Milwaukee county. To tbis judgment be prosecutes tbe writ of error from tbis court.

Eerob to review a judgment of the circuit court for Milwaukee county: OrreN T. Williams, Circuit Judge.

Appeals from a judgment of the circuit court for Eau Claire county: James O’Neill, Circuit Judge. This action was brought by Ralph W. Jademan, trustee of the estate of John H. Young, to recover the value of property-transferred as a preference under subd. b, sec. 60, Bankr. Act July 1, 1898, ch. 541, 30 Stats, at Large, 562 [U. S. Comp. St. 1901, p. 3445].

Croix county: E. W. Helms, Circuit Judge. Tbis is an action to recover earnest money paid by tbe plaintiff to tbe defendant upon an executory contract for the conveyance of land on tbe ground of failure of performance by tbe defendant. Tbe defense was, in substance, that the plaintiff, repudiated tbe contract before tbe expiration of the-time within which it might be performed and thus forfeited any claim to tbe return of tbe earnest money.

es Smith, Judge. Tbis action was brought by tbe plaintiff and tbe five inter-veners to recover from tbe defendant banks, or one of them, moneys realized as tbe proceeds of grain and flax sold for them, or some of them, on commission by E. Scbwedler, between September 6, 1901, and February 10, 1902, and by bim deposited in tbe Northwestern National Bank of Superior, and wbicb bank sold and transferred all its assets to tbe First National Bank of Superior, wbicb assumed all…

Fipield, Judge. This is a garnishee action. Tbe plaintiff, Taylor, sued Thomas Finnegan in justice court, and garnished one E. M. Calkins,. Taylor recovered judgment in the main action for '$138, damages and costs.

Dice, Circuit Judge. Action to foreclose a mortgage upon real estate. It appears that the defendants, Arthur W. Gunther and Mary T. Gunther, are husband and wife, and that at the time in question Mary T. Gunther owned the real estate involved in this litigation.

Hastings, Circuit Judge. Action to recover damages for breach of contract.

Williams, Circuit Judge. Defendant appealed from a judgment against him in the sum of $394. The only undertaking served was to the effect that the appellant would pay costs and damages awarded against him on appeal, not exceeding $250, and that he would pay the judgment if affirmed. It was signed by two sureties, each of whom made affidavit that he was worth the sum of $394.

<p> Corporations: Minority stockholder: Conveyance of corporate property to stockholder: Amendment of articles of incorporation: Effect of failure to record. </p> <p>1. In an action by a minority stockholder to set aside a sale of the entire corporate property to a stockholder, under the evidence, stated in the opinion, the sale is held to have been free from fraud, deceit, circumvention, or undue influence, and made in good faith and with the purpose of safeguarding the rights and interests of all stockholder’s.</p> <p>2. When authorized in conformity to sec. 1775, Stats. 1898 (declaring that every corporation shall have the powers of a corporation conferred by statute necessary or proper to conduct the business or accomplish the purposes prescribed by its articles, and may, by a vote of a majority of the stock given at any regular meeting or at a special meeting called for the purpose, sell and convey or authorize to be conveyed all or any portion of the property owfted by it, whether real, personal or mixed), a corporation may sell and convey all of its corporate property to a stockholder.</p> <p>3. The mere fact that such stockholder afterwards sold and conveyed the property so purchased to a new corporation, organized by himself and other stockholders of the vendor corporation, 'does not render the sale void.</p> <p>4. A sale and conveyance of all the corporate property to a stockholder cannot be set aside merely because of a delay of ten months in recording an amendment to its articles of incorporation, authorizing an increase of its capital stock and changing the number of its directors, where it appears that the corporation was originally legally incorporated and organized, and continued as such corporation during all the time in question, and the sale was made by de facto directors acting under due authority of a lawful stockholders’ meeting.</p>

■ Appeal from au order of the circuit, court for Eau Claire ■county: James O’Neill, Circuit Judge.

This is an appeal from an order sustaining a demurrer to •the complaint for insufficiency.. The material facts stated in the pleading for a cause of action are thése: Eor more than twenty years last past plaintiff has owned and occupied’as a family home lots 5,6, lü, 17,18, and 19, block 8, Hewitt’s Addition to the city of Neillsville.

Action of replevin, commenced in justice’s court upon an affidavit of one B. G. Miltimore, as president of the village of Dorchester and on its behalf, alleging detention by defendant of certain chattels/‘belonging to the fire department of said village of Dorchester,” of which the plaintiff, as president and agent of said village, was then lawfully entitled to the possession.

W. Helms, Judge. This is an action wherein the plaintiff asks the judgment of' the court declaring that he is the owner in fee of the premises described in the complaint and that defendants he declared to. have no estate or interest therein; that the mortgage appearing of record on the premises he ordered satisfied, and that an accounting he had between plaintiff and defendants as to the-rents, issues, and profits of the premises and for injuries done by defendants to…

B. Beldeh, Circuit Judge. This is an action to recover damages for loss of an eye and other incidental personal injuries sustained by plaintiff while-an employee of defendant.

B. Beldest, Circuit Judge. It is conceded that the plaintiff’s intestate was killed in the county of Kenosha, January 23, 1904, while in the employ of the defendant as a section laborer.

<p>Appeal from a judgment of the circuit court for Wal-worth county: E. B. BeldeN, Circuit Judge.</p>

<p> Banks and banking: Usage and custom: Deposits subject to check, lohen and how payable: Demand: Presumptions: Cause of action: Limitation of actions: Mutual accounts: Statutes. </p> <p>1. While in case of an ordinary account it is the legal right of the creditor to have his debtor seek him and pay him, there is no such obligation as to a creditor of a bank, where the indebtedness is carried upon its books in open account subject to check.</p> <p>2. It is tbe general custom in banking .busin'ess to pay on account of indebtedness to a depositor, carried on its books in open account subject to check, only upon a proper demand therefor by-check or its equivalent at the banking house during ordinary banking hours, and one who deposits money for Ms credit in such an account, without special understanding to the contrary, is presumed to accept the undertaking of the bank to pay according to such custom, and such is the contract between the-bank and its general depositors, by necessary implication.</p> <p>3. In such case, a breach of the bank’s obligation to pay upon a. proper demand being made, or some act on the part of the bank dispensing with such demand, is essential to a cause of action to recover from the bank and to set the statutes of limitation; running in respect to the debt.</p> <p>4. Sec. 4226, Stats. 1898 (providing that “in actions brought to recover the balance due upon a mutual and open account current the cause of action shall be deemed to have accrued at the time of the last item proved in such account”), does not apply where by the agreement between the parties the debt is payable only upon the happening of some particular event.</p> <p>5. Mere bank credits due a depositor on open account subject to check are an exception to accounts referred to in sec. 4226, Stats. 1898, and are not covered by that section but by subd. 3,. sec. 4222.</p>

<p>Appeal from a judgment of the’circuit court for Eaciue •county: E. B. Belden, Circuit Judge.</p> <p>Action brought in March, 1903, upon a money demand for ■professional services rendered by plaintiff to defendant. Defendant served answer, merely alleging that the plaintiff was -adjudged to be insane by the county court in November, 1901, and that said plaintiff, at the time of the commencement of the suit and of the answer, was insane and incompetent to in-stitute or maintain the action, and had no general guardian, nor any guardian ad litem appointed for the action. Plaintiff moved to strike out the answer as frivolous, irrelevant, redundant, and scandalous, and for judgment according to the demand of the complaint, which motion was denied April 17, 1903, and exception duly reserved. "Whereupon the action was noticed for trial, and, despite the protest of the plaintiff, against the trial of his sanity, that question seems to have been tried on evidence of some sort, including a certified copy of the order of the county judge adjudging said plaintiff insane and ordering that he be committed to the Morthern Hospital. Mo bill of exceptions was served. Thereupon the o*urt entered an order reciting that the issue had "been tried and a decision in writing filed, which does not appear in the record, and ordering judgment dismissing the plaintiff’s complaint. Whereupon judgment to that effect was entered, from which the plaintiff appeals.-</p>

<p>Appeal from a judgment of the circuit court for Eacine county: E. B. BeldeN, Circuit Judge.</p> <p>This is an action to remove a cloud from title to real estate, created by mortgage from defendant Lewis and wife to defendant Adams. Plaintiff claims through deed from the common grantors, Evan Jones and-wife, to Owen P. Pritchard, and defendant Lewis through deed from said Jones and wife tó John G. Lewis. The deeds are as follows:</p> <p>“This indenture, made this 11th day of November, in the-year of our Lord one thousand eight hundred and seventy-two, between Evan Jones, of Eacine county, Wisconsin, and Ellen, his wife, parties of the first part, and Owen P. Pritch-ard, of the same place, party of the second part,</p> <p>“Witnesseth; that the said parties of the first part, for and in consideration of the sum of fifty dollars, to them in hand paid by the said party of the second part, the receipt where•of is hereby acknowledged, have granted, bargained, sold, aliened, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, convey, and confirm, unto the said party of the second part, and to his heirs and assigns, forever, all that certain piece or parcel of land situate in said county of Racine, known as a part of the northeast quarter of section number thirty-six (36), in township number three (3) north, of range twenty-two (22) east, bounded as follows:</p> <p>“Regin in the west line of said quarter section, sixty (60) rods south of the northwest corner thereof, run thence east eighty (80) rods, thence south two (2) rods, thence west ■eighty (80) rods to the west line of said quarter, and then north two (2) rods to beginning, containing one acre, and being the same premises described as a right of way two (2) rods wide reserved by said parties of the first part in a deed this day executed by them to one John G. Lewis. Excepting and reserving from above-described premises all the timber 'thereon situated, with the right to said party of the .first part to go upon said land and remove said timber for the term of ten years.</p> <p>“Together with all and singular the hereditaments and appurtenances thereto in any wise appertaining, and all the •estate, right, title, possession, claim, and demand, in law or in equity, of the said parties of the first part thei’ein and thereto.</p> <p>“To have and to hold the same unto said party of the second part, his heirs and assigns, to his and their sole use, for■ever. And the said Evan Jones, one of the parties' of the first part, for himself, his heirs, executors, and administrators, doth hereby covenant with the said party of the second part, his heirs, executors, administrators, and assigns, that at the time of the delivery of these presents he is well seised of the above-granted premises as of an indefeasible estate of inheritance in fee simple, 'that the same are free and clear from all liens an'd incumbrances whatever, and that the same in the quiet and peaceable possession and enjoyment of the said party of the second part, his heirs and assigns, forever, against all persons lawfully claiming the same, or any part thereof, be will warrant and forever defend.</p> <p>' “In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written.</p> <p>“Signed, sealed and delivered in presence of</p> <p>EvaN JoNes. [Seal.] _ _ ro t -,</p> <p>“John W. Knio-ht.</p> <p>Eilei X Jones. [seal.]</p> <p>“Eich’d P. Howell.</p> <p>' ^</p> <p>'“State of Wisconsin, ) gg County of Eacine. j</p> <p>“On this 11th day of November, A. D. 1872, came personally before the subscriber, a notary public of said state residing in said county, Evan Jones and Ellen, his wife, to me well known to be the persons described in and who exe•cuted the above conveyance, and acknowledged that they had executed the same for the uses and purposes therein set forth.</p> <p>“Given under my hand and official seal.</p> <p>“[Notarial Seal.] JohN W. Knight,</p> <p>“Notary Public.”</p> <p>“This indenture, made this eleventh day of November, in the year of our Lord one thousand eight hundred and seventy-two, between Evan Jones, of the county of Eacine, state of Wisconsin, and Ellen, his wife, party of the first part, and John G. Lewis, of the same place, party of the second part,</p> <p>“Witnesseth, that the said parties of the first part, for and in consideration of the stun of twenty-one hundred dollars, to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, convey, and confirm, unto the said party of the second part, and to his heirs and assigns, forever, all that certain piece or parcel of land situate in said county of Eacine, known as a part of the northeast ■quarter of section number thirty-six (36), in township number three (3) north, of range number twenty-two (22) east, bounded as follows: .</p> <p>“Begin at a point in the west line of said quarter section sixty (60) rods south of the northwest comer thereof, ran thence east eighty (80) rods, thence south fifty (50) rods, thence west eighty (80) rods to the west line of said quarter,, and then north fifty (50) rods to place of beginning.</p> <p>“Excepting and reserving from the above-described premises a strip of land two (2) rods in width off the north side-thereof, to be used as a right of way.</p> <p>“The party of the 'second part, however, to have the privilege of fencing said right of way into his inclosure, and being required only to maintain a gate at each end thereof for the-use ff said party of the first part, his heirs and assigns.</p> <p>“Together with all and singular the hereditaments and appurtenances thereto in any wise appertaining, and all the estate, right, title, possession, claim, and demand, in law or-ín equity, of the said parties of the first part therein and thereto.</p> <p>“To have and to hold the same unto said party of the second part, his heirs and assigns, to his and their sole use, forever. And the said Evan J ones, one of the parties of the first part, for himself, his heirs, executors, and administrators, doth hereby covenant with the said party of the second part, his heirs, executors, administrators, and assigns, that at the time of the delivery of these presents he is well seised of the above-granted premises as of indefeasible estate of inheritance-in fee simple, that the same, are free and clear from all liens and incumbrances whatever, and that the same in the quiet and peaceable possession and enjoyment of the said party of the second part, his heirs and assigns, forever, against all persons lawfully claiming the same, or any part thereof, he will warrant and forever defend.</p> <p>“In witness whereof, the said parties of the first part have hereunto set their hands and seals the day and year first above written.</p> <p>“Signed, sealed and delivered in presence of</p> <p>EvaN JoNes. [SeaLJ</p> <p>her</p> <p>“John W. Knight. “Nich’d P. I-Iowell</p> <p>EleeN X JoNes. [Seal.}</p> <p>mark</p> <p>“State of Wisconsin, j gg County of Nacine. Í</p> <p>“On this 11th day of November, A. D. 1872, came personally before the subscriber, a notary public of said state-residing in said county, Evan Jones and Ellen, his wife, te-me well known to be the persons described in and who executed the above conveyance, and acknowledged that they had executed the same for the uses and purposes therein set forth.</p> <p>“Given under my hand and official seal.</p> <p>“[Notarial Seal.] JohN W. KNight,</p> <p>“Notary Public.**</p> <p>The main controversy is wffiether the deed from J ones and wife to Pritchard of the strip conveyed the fee or an easement for right of way. The case was tried by the court, and the court found as facts, in effect, that the plaintiff and defendant Lewis respectively derived their title through deeds hereinbefore set forth; that at the time of the execution of the deeds, November 11, 1872, Owen P. Pritchard then and prior to the time of his death was the owner, and plaintiff since has been and is the owner, of the twenty acres of land adjoining the strip in controversy at the east end thereof; that said strip was used by said Pritchard in his lifetime, and by the plaintiff since his death, as a passageway to reach said twenty acres; that on the execution and delivery of the partition deed from Wm. Beatty, as referee, to defendant Lewis, May 5,. 1894, defendant Lewis entered into possession under said! deed and held adversely for ten years, subject to the easement of Pritchard; that the mortgage referred to in the complaint was given and taken with full knowledge that the plaintiff had a right of way or easement over the strip of land in question and that the rights of the plaintiff were prior and superior to the lien of the mortgage. And as conclusions of law: That the defendant Lewis is the owner in fee simple of the land in controversy, subject only to right of way or easement over the same to the plaintiff, her heirs and assigns; that the mortgage does not constitute a cloud upon the title of the plaintiff; that defendants are entitled to judgment against plaintiff, and to recovery of their costs. Judgment was entered accordingly, from which this appeal was taken.</p> <p>Eanor is assigned: First, in the admission and exclusion of testimony; second, in finding that defendant Lewis had been in the continual occupation and adverse' possession of the premises for more than ten years prior to the commencement ■of the action; third, in the conclusions of law that defendant Lewis is the owner, in fee of the land in question, and that the reservation by grantor Jones, his heirs and assigns, in the Pritchard deed, was an easement merely, that defendants’ claim, under secs. 4211, 4212, Stats. 1898, is established by the evidence, that the mortgage does not constitute a cloud upon the rights of the plaintiff, and in ordering judgment for defendants.</p>

<p>Divorce from, bed and board for limited time: Judgments: Construe-* tion: Abatement of action: Interlocutory judgment: Subsequent proceedings for divorce from bed and board forever.</p> <p>A judgment in February, 1899, granted to the plaintiff “a divorce from bed and board for the term and period of two years from” its date, awarded to the plaintiff the possession, use, and income of certain property for the term and period of five years from its date, and expressly provided that it should not prejudice the right of plaintiff to apply for judgment of divorce from the bonds of matrimony, of from bed and board forever, in the event defendant did not refrain from the use of strong and intoxicating liquors and drinks, and that it should not he deemed to provide for or to he a final distribution and division of the property of defendant between the parties. Held:</p> <p>(1) Such judgment did not bar the defendant from bed and board after the termination of the two years.</p> <p>(2) The action did not abate and go out of court at the expiration of the two years.</p> <p>(3) The judgment was an interlocutory judgment within the calls of sec. 2883, Stats. 1898.</p> <p>(4) On the express ground that the judgment of 1899 was an interlocutory judgment, the plaintiff was not barred after two years, and within the five years, .from petitioning the court for a judgment of .divorce and separation from the defendant from bed and board forever, for a reasonable division of the property, for reasonable costs and attorney’s fees, and for general relief.</p>

<p> Appeal and, error: Findings of referee, when disturbed. </p> <p>A finding of a referee, confirmed by tbe court, not against tbe clear preponderance of tbe evidence, will not be disturbed on appeal.</p>

TaReaet, Circuit Judge. Appeal from the circuit court for Milwaukee county from an order in a proceeding’ in the action of Emma, Boehler, plaintiff, v. Henry Boehler, defendant.

<p>Appeal from a judgment and, order of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>Action by plaintiff, a real-estate agent, alleging a verbal contract in 1899, whereby plaintiff was to procure a purchaser for certain real estate of the defendant “at the highest price obtainable and satisfactory to the said defendant,” and that, when he should furnish a purchaser ready, willing, and able to purchase at a satisfactory price, defendant should pay him two per cent, of the sale price; also that in 1902 defendant authorized an offer of said property at $2,000 per acre, and in September, 1902, plaintiff procured purchaser ready, willing, and able to purchase said property at the price of $2,000 per acre, to whom the defendant sold the property, amounting to ten acres, — wherefore $400 and interest was demanded. Evidence was given tending to establish the allegations of the complaint and tending to show that defendant, while offering to accept $2,000 an acre some time in 1901, had insisted later on $2,300 per acre. It was conceded that defendant did sell to the Filer & Stowell Company, but whether for $2,000 per acre- or for $1,909 per acre was somewhat in dispute. There was also evidence that plaintiff had negotiated with the Filer & Stowell people, and that he had obtained and communicated to defendant an offer from them of $2,000 per acre for ten acres of land, and there was evidence tending to prove that, while so negotiating, he had an agreement with the Filer & Stowell Company to pay him a commission under certain contingencies. Defendant moved for a nonsuit at the close of the plaintiff’s testimony, and, at the close of all the testimony, for direction of a verdict, both of which motions were overruled and a general verdict rendered in plaintiff’s favor for $400 and interest from the time of the sale. Defendant moved to' set aside the verdict and for a new trial, and moved on affidavits after judgment to set aside the judgment and grant a new trial, both of which motions were overruled, whereupon appeals were taken both from the judgment and from the order after, judgment denying the motion to set it aside.</p>

Williams, Circuit Judge. This is an appeal from a judgment of divorce. Plaintiff and defendant were duly married in the month of October, 1891. One child, who is now, and has been since 1895, in the custody of his mother, is now living as the issue of this marriage.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: OeREN T. Williams, Circuit Judge.</p> <p>Tbe plaintiffs sou, a minor, was severely injured while in defendant’s employ, and commenced an action tbrongb bis guardian to recover damages for sucb injuries, wbicb case was appealed to tbis court and is reported in 121 Wis. 96, 98 N. W. 950. No notice of injury was served in snob action, tbe same having been brought within one year from tbe time of tbe injury. Tbe'case at bar is an action brought by tbe father of said minor to recover damages for loss of services and for expense of medical attendance and nursing resulting from tbe injury sustained by said minor. Said minor son of plaintiff was injured on tbe 28th day of July, 1900. Tbe summons and complaint in tbis action were served on the 28th day of May, 1904, four years after tbe date of injury to tbe son. Tbe facts were stipulated on tbe trial, and it was agreed that in case plaintiff was entitled to recover upon sucb facts be should recover $1,000 damages; tbe only question in controversy being whether it was' necessary to serve tbe notice provided for in subd. 5, sec. 4222, Stats. 1898, and, if so, whether the service of tbe summons and complaint in tbe action by tbe son through bis guardian within one year from tbe date of injury was sufficient. Each party moved upon tbe stipulation for a directed verdict. Defendant’s motion was denied, and a verdict directed in favor of tbe plaintiff for $1,000, upon which judgment was entered, and from wbicb tbis appeal was taken. Error is assigned because tbe court ordered judgment for tbe plaintiff.</p>

<p> Statutes: Examination of adverse party before trial: Stay of proceedings: “Plead:” Inspection of documents: “Provisional remedy:” “Special proceeding:" “Proceeding:” Appealable orders. </p> <p>1. Sec. 4096, Stats. 1898, provides that “the examination of a party . . . otherwise than as a witness on a trial may he taken by deposition at the instance of the adverse party in any action or proceeding, at any time after the commencement thereof and before judgment,” and may “be taken before issue joined . . . to enable the party to plead.” Held, that the word “plead,” as thus used in this statute, is not to be limited to a complaint, answer, or reply, but extends to a claim urged in defense of a proceeding instituted by either party in aid of an action or defense and which may be put in issue and tried.</p> <p>2. Such construction extends and applies the right of an examination of the adverse party under the provisions of sec. 4096, *Stats. 1898, to a proceeding instituted before filing the complaint and authorized by sec. 4183, to compel the production for examination of the defendant’s books and papers.</p> <p>3. The “stay of all other proceedings in the action of the party against whom” an order is made under sec. 4183, Stats. 1898 (requiring the inspection and copy, or permission to take a copy, of any books, papers and documents in the adverse party’s possession or under his control containing evidence relating to the merits of the action or defense therein), in conformity to Circuit Court Rule XIX, does n'ot operate to bar a defendant from resisting plaintiff’s application to compel such inspection or furnishing such copies, and hence does not operate to prevent the examination of the plaintiff by the defendant under sec. 4096.’</p> <p>4. The examination of the adverse party under sec. 4096, Stats. 1898, is a “provisional remedy” and a “special proceeding,” and hence an order denying the proper exercise of that right is ap-pealable under subds. 2, 3, sec. 3069.</p> <p>5. Proceedings instituted under sec. 4183, Stats. 1898, to compel the inspection of books and papers is a “proceeding,” and hence an order denying the right to examine the adverse party therein is appealable under subd. 3, sec. 3069.</p>

<p>EeeoR to review a judgment of the municipal court of' Milwaukee county: A. 0. Brazee, Judge.</p>

<p>Corporations: Powers: Stockholders: Liability for subscriptions to stock: Satisfaction: Capital stock: Reduction: Courts: Equity jurisdiction: Ultra vires: Procedure: Judgments.</p> <p>1. The liability to pay a subscription indebtedness for stock in a corporation can only be rightfully satisfied by payment according to the subscription contract.</p> <p>2. Reduction of authorized and subscribed for capital stock cannot be accomplished except by voluntary -surrender by subscribers pro rata, or some method which will not prefer one stockholder over another.</p> <p>3. Corporate power in regard to reduction of authorized and subscribed for capital stock does not authorize an arbitrary cancellation of stock, or cancellation of a subscription liability for stock, without in some proper manner treating all stockholders with like favor.</p> <p>4. A court of equity cannot supervise or revise corporate action within the scope of the corporate power where there is no bad faith in the matter; only error of judgment.</p> <p>5. In such matters the members of the corporation, as to authority lodged with them, and the board of directors in the field where that is the governing body, are supreme, within the limits of ■ honest administration and of the boundaries of discretion.</p> <p>6. But where the act of either such body, though lawful in itself, is designed to accomplish some illegitimate object — the mainspring of the transaction is some ulterior motive, — and the result, if permitted to operate, will be injurious to the corporation or a member not concerned in the transaction, such a member may successfully invoke equity jurisdiction for protection of the corporation when the proper officers will not do it.</p> <p>7. Where, in proceedings to reduce the capital stock of a corporation, the formal resolution voted upon and certified as required by law did not disclose that its real object was to deprive minority stockholders of their rights to full-paid stock and to release the majority from stock-subscription liabilities, a subsequent resolution instructing the board of directors how to carry out the reduction of the stock is held to disclose that object.</p> <p>'8. If stockholders by combining a ruling majority exercise a corporate power with bad motives to the pecuniary loss or prejudice of the corporation and the minority stockholders, the wrongful use of power, as well as the mere consequence thereof, is open to judicial investigation and redress.</p> <p>9. The authority to reduce capital stock is limited by its purposes. When it is exercised clearly for an illegitimate purpose, especially when such purpose is fraudulent, the act is void.</p> <p>10. Where those in control of a corporation and who had not entirely paid up their stock subscription undertook to reduce the capital stock, in form proceeding under a statute authorizing reduction of capital stock, the minority stockholders, whose stock was full paid, not consenting to such reduction, a judgment declaring the whole proceedings void and directing their cancellation of record is not prejudicial to the wrongdoing stockholders.</p>

<p> Municipal corporations: Ordinances: Validity: Statutes, mandatory or directory? “May:” Ordinance: Violation: Complaint. </p> <p>1. A common council of a city cannot in the exercise of its legislative grant enact ordinances which are in conflict with the laws of the state.</p> <p>2. Ch. 35, Laws of 1853, providing a code of procedure for actions brought by the city of Milwaukee in its corporate name in the police court of the city for the recovery of fines and penalties under its charter and ordinances, until its final repeal in 1895, was made applicable to the municipal court of the county of Milwaukee. Sec. 2051, R. S. 1878, as to the powers and jurisdiction of said municipal court, provided: “The judge of said court . . . shall have jurisdiction of all prosecutions for breaches of any ordinance, law, rule, regulation and resolution of the city of Milwaukee, . . . and hear and dispose of, in a summary way, all cases for such breaches which shall be brought before him by the police officers of said city or otherwise, either with or without process.” Such jurisdiction remained in the municipal court until sec. 2051 was repealed by ch. 7, Laws of 1895, and was, by ch. 6, Laws of 1895, then vested in a police court of Milwaukee county, which latter court was given exclusive jurisdiction of all prosecutions for the breach of any ordinance, etc., of the city of.Milwaukee. It was further ' provided that complaints and other papers should, in form and substance, conform to those theretofore used in the municipal court, and that in city prosecutions its clerks should enter upon the records of the court a statement of the offense charged, which should stand as the complaint, unless the court should direct a formal complaint to be made. Tbis police court was abolished and the district court of Milwaukee county established by ch. 218, Laws of 1899, with exclusive jurisdiction to try and sentence all offenders against the ordinances, etc., of the city of Milwaukee; the complaints and other papers to conform to those theretofore used in the police and municipal courts, and the clerk to enter on the court records a statement of the offense charged, which should stand as the complaint, unless the court ordered a formal complaint to be made. Held,, that a complaint under a city ordinance denouncing a penalty for gambling was properly made by a police officer, although the ordinance provided that “such complaints may be made by the city attorney.”</p> <p>3. In such case the word “may,” as used in the ordinance, cannot be construed as “must,” since the common council could not modify or abrogate the statutory provisions cited.</p> <p>4. In such case, the prosecution having been instituted in pursuance of the requirements of the statutes governing the jurisdiction of the district court, the proceedings in that respect are field valid'.</p> <p>[5. Whether the common council had the power to prescribe that, in addition to the method prescribed by the statutes, the city attorney might make complaint without verification, not determined.]</p>