Volume 60 — Wisconsin Reports

The case is thus stated by Mr. Justice Cassoday: “This is an action for possession of the premises in question, against tenants holding over after the expiration of their lease. “September 1, 1876, the plaintiff’s testator by a lease in writing rented the premises to Kay ser and Hermanna for th© term of five years from that date, for an annual rent of $1,100 per year, payable in advance in instalments of $215 on the first days of March, June, September, and December of each…

The cause was before this court on a former appeal and is reported in 49 Wis., 57. A statement of the case will there be found. After the reversal of the judgment on that appeal the venue was changed to Monroe county. Upon the second trial it appeared that of the .400 yards of stone to be used at Devil’s Nose, the defendant had received and paid for 208 yards, but had refused to receive 192 yards.

The cause was before this court on former appeals and is last reported in 55 Wis., 598. The nature of the action may be ascertained from that report. After issue was joined in the action, the defendant Burn-ham was duly required by the plaintiff to appear before a court commissioner for examination, pursuant to R. S., 995, sec. 4096. He attended before the commissioner at the appointed time, and was examined.

APPEALS from the County Court of Milwauleee County. This action was brought in the Milwaukee county court under sec. 3216, R. S., against an insolvent corporation and its three directors, who; it is alleged, are the owners of all the capital stock of such corporation.

The pleadings, and the view taken by this court of the' evidence, will sufficiently appear from the opinion. Held: among other things, that each member of the firm of Remington, Powers & Co. who has overpaid his share of the indebtedness of said firm, is entitled to recover such excess with interest; that each member of said firm who failed to pay his share of said indebtedness is liable for the amount which he thus failed to pay, with interest…

<p>APPEAL from the Circuit Court for Marathon County. The case is stated in the opinion.</p> <p>Wormser v. JDahhnan, 16 Blatchf., 319; S. C., 57</p> <p>How. Pr., 286; Girardey v. Moore, 3 Woods C. C., 397; Bictterfield v. Home Ins. Go., 14 Minn., 419; Bump’s Eed. Proc., 188.</p>

This appeal is by the defendant Bedker from an order denying his application, made in his own behalf alone, for a change of the place of trial of the action. The application was based upon the affidavit of Becker to the prejudice of the judge of the court in which the action was pending.

<p>APPEAL from the Circuit Court for Marathon County.</p>

This action was commenced, October 26, 1881, to recover the sum of $158.79 for the care and keeping of a pauper whose legal settlement was alleged to be in the defendant town. On the 7th of April, 1868, townships 29 and 30, North, of range 13, West, in Dunn county were organized and created a town, known as the town of Sherman.

The case is thus stated by Mr. Justice Taylok: “ This appeal is from an order overruling a general demurrer to the complaint. “The complaint was intended to set out a cause of action in favor of the plaintiff on account of the obstruction of the navigable waters of the Wisconsin river, by reason of the maintenance of a railroad bridge by said defendant across said river, which obstruction caused the destruction of a raft of lumber owned by the plaintiff, while he was…

The case is stated in the opinion. The assessment in question was made in the year 1882. The plaintiffs appealed from an order granting a stay of proceedings and directing that a reassessment of the property in each, of the towns mentioned be made as provided by law.

Croix County. The plaintiff brought this action as assignee of one John Hennessy, to recover an unpaid balance for work and labor alleged in the complaint to have been done by the latter for the defendants as partners, between October 1, 1815,'and March 27, 1876, in and about the cutting and hauling of certain pine saw-logs.

Croix County. Action for the wrongful conversion of four calves belonging to the plaintiff.

The case is stated in the opinion.1 At the close of the testimony the court granted a peremptory nonsuit, and from the judgment entered accordingly the plaintiff appealed. argued, among other things, that under sec. 3031, R. S., the commissioner could not, as here, order the debtor to be examined as to his property generally. Nieuwanlcamp v. Oilman, étí Wis., 170; Stephens v. Willems, 6 Pa. St., 260; Riddle’s Sup. Proc. (2d ed.), p. 35 of the supplement.

<p>Evidence: Boundaries oe Land. (1) Instructions to jury. (2) Declarations as part of res gestee. (S) Examination of witnesses.</p> <p>1. The court may instruct the jury as to the rules of evidence but not as to the relative weight of. the testimony or the credibility of the witnesses.</p> <p>2. Declarations accompanying the act of parting with the title and possession of land, as to the boundaries thereof, are not within the rule that declarations accompanying the act of possession and explanatory thereof, if made in good faith, are admissible as part of the res gestae.</p> <p>8. Positive testimony of a fact not having been shaken on cross examination, it was not error to refuse to permit the witness, on his redirect examination, to state the circumstances which fixed such fact in his mind.</p>

Action to foreclose a mortgage given to one Paul Fox as guardian of the infant plaintiffs. Before the commencement of the action Theodore Kemnitz had succeeded Fox as the general guardian of said infants, and the mortgage and note secured thereby had been assignedto him.

Action to recover damages for injuries sustained by the plaintiff Sarah L. Wright by reason of a defective sidewalk in the defendant city. ■ The evidence tended to show that as the result of a fall upon such sidewalk the plaintiff wife suffered a miscarriage, which was followed \>y prolapsus uteri; and that the injury was probably permanent.

Action upon a policy of insurance .against lire issued by a town insurance company. The facts sufficiently appear from the opinion. The defendant appealed from a judgment in favor of the plaintiff.

The case is thus stated by Mr Justice Cassoday: “ This was an action to enjoin and set aside certain taxes levied and assessed in the year 1878 on the lands of the plaintiffs in the defendant town.

The opinion states the case. The plaintiff appealed from a judgment in favor of the defendant. They contended, inter alia, that the tax deed was void on its face because executed by the deputy in his own name instead of the name of his principal. E. S., sec. 1176; Iluey v. Van Wie, 23 Wis., 613; Blackwell on Tax Titles, 375; Wilsons v. Bell, 7 Leigh, 22; Flanagan v. Grimmet, 10 Grat., 431; Lynch v. Livingston, 6 N. Y., 422.

The action is ejectment. The complaint is in the form required by statute. The answer contains only a general denial and a claim of the benefit of several statutes of limItation therein specified. On the trial before the court (a jury having been waived) the plaintiff proved title in fee to the lands claimed, through and under a patent from the United States. The defendant admitted that when the action was commenced he claimed title to such lands.

The defendant in this case appealed from a judgment, entered'upon a special verdict, in favor of the plaintiffs. The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: Action to recover the value of certain personal property, and of a dwelling-house situate in the city of Green Bay, which were destroyed by fire September 20, 1880.

<p>APPEAL from the Circuit Court for Boor County.</p> <p>The case is stated in the opinion. The plaintiffs appealed from a judgment for the defendants.</p>

Action to recover $20 loaned by the plaintiff to the defendant. The answer admits the borrowing of the money, but alleges repayment. There was a verdict for the plaintiff.

Replevin. The substance of the pleadings is stated in the opinion. The action was tried at the July term of the circuit court for Door county, in 1883. When the calendar for the term was called the plaintiffs’ attorney gave notice that he would move to strike the cause from the calendar for the reason that it was noticed for trial before issue was joined. This motion was afterwards heard and denied.

Ejectment to recover certain land in Door county, described in the complaint. It is alleged in the complaint that the plaintiffs are the owners in fee and entitled to the possession of such land, and that the defendant claims title thereto, and unlawfully withholds, and ever since January 22, 1880, has so unlawfully withheld, the possession thereof from the plaintiffs.

<p>APPEAL from the Circuit Court for Door County.</p> <p>The case is stated in the opinion.</p>

Action to enforce liens for materials furnished by the plaintiffs and used in the construction of a building built for the defendants Warner and Meyer by the defendant Dean. Each of the plaintiffs had filed a several petition for a lien. The defendant Dean failed to answer.

The case is thus stated by Mr. Justice Cassoday: “ It appears from the record and, in fact, is admitted by all parties and, in effect, found by the court, that the will of the testatrix was duly made, executed, attested, wit-,( nessed, published, and declared as a will, July 29, 1870, in the state of New York, but in strict conformity with our statutes, and that the will is entitled to probate, if not revoked ; that the paper upon which the will was written was a very large,…

This action was for a divorce on the ground of the adultery of the wife, and was commenced by the husband in August, 1879. The summons was published in the Nord-westlicher Courier, a German newspaper in the city of Fond du Lac. The defendant failed to answer the complaint, and, after the usual 'reference and report, judgment of divorce was rendered, dated February 2, 1880.

Croix County. The case is thus stated by Mr. Justice Taylor: “This action was brought to recover of the defendants the amount of three promissory notes. The action was commenced in September, 1882. One of the notes was for $65, payable on or before June 1, 1882; the others were for $200' each,— the one payable on or before December 1, 1882, and the other on or before December 1, 1883.

Croix County. The action was brought before a justice of the peace and the plaintiff recovered. The defendant attempted to appeal to the circuit court. The paper purporting to be an affidavit of appeal is in due form and signed by the defendant, but there is no certificate appended to the affidavit that it was sworn to before any officer or person.

The case is thus stated by Mr. Justice Oassoday: i- This case grows out of the case of Piles v. Vaughn, which was twice before this court. In that case it appeared that during 1873-74, McDonald, by two certain parol contracts, had agreed to sell and to deliver to Pilce, at a place named, 1,000,000 feet of pine saw-logs, board measure, at $4.50 per thousand'feet.

Action to foreclose a mortgage of an undivided one-half of certain mill property, given to secure the payment of a note executed by the defendants J. M. Smith and Mary 0. Smith. The complaint alleges the death of the mortgagee and the assignment of the note and mortgage, as a part of the residue of his estate, to the plaintiffs, substantially as stated in the opinion.

<p>Pleading. (1) City charter: Redundancy. (2) Service of amended complaint: Discretion.</p> <p>1. A city charter is a public law, of -which courts take judicial notice, and a recitation of its provisions in a complaint may be stricken out as redundant.</p> <p>2. The court on ordering redundant matter to he stricken out may, in its discretion, direct the service of an amended complaint.</p>

The defendants appealed from an order of the circuit court dismissing their appeal from the municipal court of Chippewa county. ' The facts sufficiently appear from the opinion.

The case is thus stated by Mr. Justice Tayloe: “ Action to recover the sum of $1,000 and interest thereon, which the plaintiff alleges he paid or deposited with the defendant as a part payment of the purchase money on a parol contract for the purchase of an undivided fourth part of a tract of land described in the complaint.

The facts are stated in the opinion. The complaint made no reference to the parol contract for the conveyance of land under which the services were rendered and the money expended.

The case is thus stated by Mr. Justice Oassoday: “ This case was here on a former appeal. 55 Wis., 225. On that appeal the judgment in favor of the garnishee for $59.86 attorney’s fees and $7.05 clerk’s fees, making $66.91, was reversed May 10, 1882, and the remittitur was filed in the court below August 12, 1882.

Action of trespass guare clausum, commenced in justice’s court. The answer, besides a general denial, gave notice that upon the trial the defendant would show that he and his grantors and the public had a prescriptive right to walk upon the banks and take fish from a stream known as Stony, brook, upon the plaintiff’s premises, and that at the time of the alleged trespass he was in the exercise of such right. Other facts are stated in the opinion.

The plaintiff, the county surveyor of the defendant county, presented to the board of supervisors a claim against the county for fuel and stationery used in his office. The board disallowed the claim and the plaintiff appealed to the circuit court.

The case is thus stated by Mr. Justice Tatloe: “ An action was commenced in justice’s court against five defendants for wrongfully taking from plaintiff’s possession a pile of stone.

The facts are stated, in the opinion. The court instructed the jury that the taking of the property was an unlawful act and that the defendant was liable for the actual damages resulting therefrom. The jury rendered a verdict accordingly, and from the judgment entered thereon the defendant appealed. They argued, inter alia, that replevin will not lie for property seized in payment of public revenue or held in cus-todia legis.

The case is thus stated by Mr. Justice Cassoday: “During the times in question the plaintiff owned and occupied as a homestead a lot of about an acre and a half of land in the town of Waukesha, fronting northeasterly upon and extending to the center of the South Milwaukee road, or Broadway, — such front being about 250 feet in extent, and the line of such front running in a northwesterly and southeasterly direction.

The case is sufficiently stated in the opinion. There was a verdict for the plaintiff, and from the judgment entered thereon the defendant appealed.

<p>APPEAL from the Circuit Court for Waukesha County.</p>

<p>APPEAL from the Circuit Court for Dodge County.</p> <p>The defendant appealed from an order vacating an award. The facts sufficiently appear from, the opinion.</p>

The case is thus stated by Mr. Justice Cassoday: “ The plaintiff is a mortgagee and assignee of the insurance in question. June 10, 1877, his assignor, Charles Fleischer, made a written application to the defendant for $1,800 insurance upon -his mill buildings and machinery ‘for one year from June 10, 1877.’.

Action for injuries to a wagon and team, alleged to have been caused by a defective street in the defendant city. The defendant appealed from an order overruling a general demurrer to the complaint.

<p> Vacating judgment: unavoidable absence of attorney. </p> <p>The refusal of the trial court in this caseto open a Judgment obtained in the unavoidable absence of the defendant’s attorney, for the purpose of allowing the defendant to defend, is held error.</p>

^APPEAL from the Circuit Court for Racine County, xhe case is thus stated by Mr. Justice Taylor: “ On tbe 2d day of March, 1882, the respondent commenced an action against P. II. Cunningham in the Racine eo.nnty circuit court, and at the same time made an affidavit' as required by law, and issued a garnishee summons against the railway company.

Ejectment. The facts will sufficiently appear from the opinion. There was a verdict for the defendant, and from the judgment entered thereon the plaintiff appealed.

The case is thus stated by Mr. Justice Cassoday: “This action was commenced November 18, 1881, to foreclose a note and mortgage for $1,800, upon a lot in the city of Racine, alleged to have been’ executed by the defendant Mary Kelley, then Mary O’Hara, April 13, 1869, which, by their terms, were due and payable one year after that date, with interest at ten per cent.

The plaintiff was for several years a locomotive engineer in the service of the defendant company. Having been discharged from such service he brought this action to recover an unpaid balance alleged to be due him for wages, and claimed $185.75, and interest from March 3, 1881. The answer of the company admits the service, but denies the indebtedness.

On April 23, 1878, Benjamin Holmes, being then more than ninety years of age, deeded to the defendant Charles W. Smith, his son-in-law, certain real estate in the village of Geneva; and on August 20,1878, the same grantor executed a deed of the same land to the plaintiff, his only grandson and a son of said defendant. The second deed was deposited with one Harry Smith for delivery to the plaintiff after the grantor’s death.

The case is thus stated by Mr. Justice Tatloe: “This action was brought by the respondents, husband' and wife, to restrain the delivery of a sheriffs deed on an execution sale, and to set aside such sale. The ground upon which the action is based is the allegation that the property sold by the sheriff on execution was the homestead of the respondents at the time the same was sold.

<p> Tender. </p> <p>A tender of payment must be unconditional and not a mere offer of compromise. Thus where F. offered to pay E. $15 for certain services but E. refused to receive the money, saying that he would not take less than $75, there was no valid tender.</p>

The case is thus stated by Mr. Justice Cassodat: “This action was commenced in justice’s court, February 13, 1880. The complaint was upon a written contract on which the plaintiff claimed §166.15. February 21, 1880, defendant answered and alleged by way of offset a large number of items of account and charges against the plaintiff, and at the same time offered in writing to permit the plaintiff to take judgment against him for $80 damages and costs.

MANDAMUS to the Commissioners of the Public Lands. On the petition of the relator an alternative writ of mandamus issued out of this court, directed to the commissioners of the public lands, commanding them to issue to the relator a patent of a certain quarter-section of land therein described, or to show cause to the contrary thereof on a certain day therein specified.

Habeas Corpus. The principal facts in the case are stated in the opinion.

The action was brought originally against the defendant Pieree alone, to foreclose a certain land contract set out in the complaint, executed by the plaintiff and Pieree, bearing date October 16, 1878. By this contract Pieree agreed to pay the plaintiff $6,500 within eight years from October 1, 1878, with interest thereon at ten per cent, per annum, payable monthly, and also to pay taxes, assessments, and insurance on the property therein described.

Ejectment, to recover an undivided one-third of certain land described in the complaint. The answer denies the plaintiff’s title, and alleges that the defendant is the sole owner of the land in fee simple. The facts, as they appear from the testimony and the findings of the court, are as follows: In 1877 John Ferguson, Sr., who was the father of these parties, and then the owner of the land claimed, conveyed such land to the defendant.

CEETIOEAEI to the State Superintendent. The case is stated in the opinion. to the point that the recital in the order of the town boards, that they “ met pursuant to notice given as provided by law,” was not prima faeie evidence that the requisite notices were given, and that there was no presumption of jurisdiction, cited: Williams v. Holmes, 2 Wis., 129; Sibley v. Waffle, 16 N. Y., 189; Bridge v. Bracken, 3 Pin., 76; Blackwell on Tax Titles, 72, 73; People v. Brooklyn, 21…

The facts are stated in the opinion. There was a verdict for the defendant; a motion for a new trial was denied; and the plaintiff appealed from a judgment on the verdict.

The case is thus stated by Mr. Justice Cassoday: “ This is an action of replevin, commenced March 9, 1882, for a stock of lumber, lath, etc., which was held by Seyfried & Schieffer, as factors of the plaintiffs. The defendants justified under two executions against Seyfried & Schieffer. The cause, being at issue, was, on motion of the defendants, referred to Hugh Ryan, Esq., a court commissioner, to hear, try, and determine, Janua^r 17, 1882.

The facts sufficiently appear from the opinion. The county court confirmed the report of the referee and rendered judgment in favor of the plaintiff for the amount found due. Prom that judgment the plaintiff appealed.

County Court of Milwaukee County. Fenn & Williams were partners in business, and as such made a voluntary assignment of their firm property to the defendant TJpson, for the benefit of their creditors. In such assignment the firm preferred two creditors. The plaintiffs were creditors of the firm. They brought an action on their demand, and proceeded by garnishee process against the assignee.

Action for libel. The complaint alleges that the defendant was the publisher of a newspaper of large • circulation, called the “Republican-Sentinel;” that the plaintiff, who, until the.,publication of the alleged libel, had always maintained a good reputation and credit, was one of the publishers and proprietors of the “ Seebote,” a newspaper published in the city of Milwaukee, and therein was a partner of one P. Y. Deuster; that said P. Y. Deuster was a candidate for…

Action upon a policy of endowment insurance issued June 8, 1867, to recover the sum of $400 alleged to be due thereon, together with interest on said sum from June 3, 1818.

APPEAL- from the Circuit Court for Winnebago County. The case is thus stated by Mr. Justice Cassoday: “ This action was commenced in 1819 in the municipal court of Ripon, and, upon a trial, verdict and judgment were rendered in favor of the plaintiff. The judgment was reversed on appeal to this court. Thereupon the venue was changed to the circuit court for Green Lake county, on the ground of the prejudice of the municipal judge.

APPEALS from the County Court of Winnebago County. The plaintiff appealed from an order sustaining a general demurrer to the second cause of action stated in the complaint; and the defendant appealed from an order overruling a similar demurrer to the first cause of action stated. The facts alleged in the complaint will sufficiently appear from the ojDiriion.

The following statement of the case was prepared by Mr. Justice Taylor, as a part of the opinion: Ejectment to recover the possession of certain real estate situate in the county of Marathon.

<p>APPEAL from the Circuit Court for 'Winnebago County.</p> <p>The case is stated in the opinion.</p>

The case is thus stated by Mr. Justice Cassoday: “ The plaintiff Anna, with two of the children of the plaintiffs, took passage on one of the defendant’s passenger trains at the city of Eond du Lac for Yan Dyne station, in the town of Friendship, Fond du Lac county, August 23, 1882.

<p>APPEAL from, the Circuit Court for Winnebago County.</p> <p>The facts are similar to those in the preceding case.</p>

Action to foreclose a mortgage. The defendants appealed from an order appointing a receiver. The facts sufficiently appear from the opinion. They contended, inter alia, that within all the best considered cases the plaintiff had shown himself entitled to a receiver on account of the insolvency of the mortgagors and their nonresidence, and the inadequacy of the security. 2 Jones on Mortg., secs. 1510, 1521, 1533; Bank of Ogdensburgh v. Arnold, 5 Paige, 38; Sea Ins.

Such complaint is long, and perhaps, contains averments which might be advantageously omitted.

<p>Boundaries of land — Adverse possession — Pleading — Evidence.</p> <p>1. If two adjacent owners agree upon and establish a dividing line between their lands, and actually claim and occupy the land to that line on each side continuously for twenty years, their possession is adverse and creates title by prescription. Tóbey v. Seaor, ante, p. 310.</p> <p>2. Evidence of such location of the boundary line and occupation, is admissible where the title is put in issue by the pleadings, although adverse possession is not specially alleged.</p>

Ejectment. The parties are the children and heirs at law of William and Phoebe Thrall. The action is by five of them against the sixth, to recover their shares of the land both as the heirs of their mother, who owned the land in fee, and as the heirs of their father, who, as they claimed, owned a leasehold interest therein, the term of which had not expired. The mother died in August, 1875, and the father died in September, 1881.

' The complaint contains two counts, one based upon injuries received by the plaintiff wife in the morning, and the other upon injuries received by her in the afternoon, of the 16th day of July, 1882. Such injuries were alleged to have been caused by the acts of the two sons of the defendant Frank Nolter, who were then between eight and nine years of age. The evidence given at the trial, and that excluded by the court, will sufficiently appear from the opinion.

The case is thus stated by Mr. Justice Cassoday: “ This is an action to enjoin the sale of lands of the plaintiff for reassessed taxes. The' plaintiff was the owner of lots 7 and 16, in block Y, in Darling’s addition in the First ward of the city of Fond du Lac; also lot 10 in H. R. Fargo’s second addition in the Second .ward of the city.

This action was brought to foreclose a tax certificate issued to the city of Milwaukee on a sale of a certain, lot therein specified, for nonpayment of a special assessment thereon for a street improvement. The city duly assigned such certificate to the plaintiffs, who are the owners and holders thereof. The complaint is in the usual and proper form.

APPExYL from the Circuit Court for Milwaukee County. Action for injuries to the person of the plaintiff and to his wagon, caused by a collision with a moving train while he was attempting to cross the track of the defendant’s railroad. A motion by the defendant for a nonsuit, made at the close of the plaintiff’s testimony, was denied.

<p> Voluntary assignment: Failure to file inventory: Mistake. </p> <p>A failure to make and file a correct inventory and list of creditor» within ten days after the execution of a voluntary assignment renders such assignment void as to attaching creditors. A mistake in the time of filing is not within the meaning of sec. 1697, B. S., providing that no mistake in the inventory and list shall invalidate the assignment.</p>

The case is thus stated by Mr. Justice Cassoday: “ The plaintiff in error being under arrest and about to be tried for the offense of having written and sent through the post office a threatening letter for the purpose of extorting money, and the court having been informed by the district attorney in writing that there was a probability that the prisoner was then insane, and thereby incapacitated to act for herself, and ought not, for that reason, to be then put upon her…

The information in this case charges that, on a certain clay and at a certain place therein specified, the plaintiff in error did feloniously kill and slay one John Fiegenst. It thus charges, in the form authorized by the statute (R. S., sec. 4660), that the accused committed the crime of manslaughter. The plaintiff in error pleaded not guilty, and was tried for the offense charged.

This action was commenced in this court by the attorney general, on behalf of the state, against the ¡St. Croix Boom Corporation and its general superintendent, to restrain them-from maintaining certain obstructions in the main channel of the St. Croix river, and .from otherwise obstructing the free use and navigation thereof, so far as the same is within the limits or jurisdiction of the state of Wisconsin.

<p>CRIMINAL Law and Practice. Leading questions: Discretion.</p> <p>1. A question which assumes the existence of a fact essential to a conviction, when there is no evidence of such fact, is objectionable as being leading.</p> <p>2. The admission, upon a trial for an attempt to produce an abortion or miscarriage, of a question which assumed that the woman had been pregnant (no evidence of that fact having been given) is held not to liave been a proper exercise of the discretion of the court; and a judgment of conviction is reversed.</p>

The case is stated in. the opinion. They argued, among other things, that sec. 1564 was intended to apply to a class, to wit, “ tavern keepers ” and persons in the like occupation or business; otherwise it would have read, “If any person,” etc. The word “tavern,” in this connection, means “ a house for the retailing of liquors to be drank on the spot.” Burrill’s Law Diet.; Bouvier’s Law Diet.; Webster’s Diet.; Rode v. State, 7 Gill, 326.

<p> Legitimacy of child: Wife cannot testify to non-access of husband. </p> <p>On the question of the legitimacy of her children, the wife cannot give evidence, even as to collateral facts, tending to show non-access of her husband during the time in which they must have been begotten.</p>

CeetiobaRI to the Judge of the Ninth Judicial Circuit. The case is,,thus stated by Mr. Justice Cassoday: “The relator was arrested in'Indiana upon a requisition issued by the governor of Wisconsin, upon a complaint in justice’s court, Columbia county, Wisconsin, charging him with embezzlement of property belonging to James Gowan, in that county.

REPORTED from the Circuit Court for Grant County. The defendant was tried on an information charging him with the crime of receiving stolen property, knowing it to have been stolen, and was convicted. Pending motions in arrest of judgment and for a new trial, the circuit judge reported the case to this court for its opinion on certain ■questions of law hereinafter stated.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the servants of the defendant company. The answer denies negligence on the part of the defendant and alleges negligence of the plaintiff as the cause of the injury. The facts attending the accident will appear from the opinion.

The firm of Brearly & Adams, doing business as manufacturers in the city of Racine, becoming insolvent, made a voluntary assignment of their partnership property (not exempt from seizure on attachment or execution) to the plaintiff, for the benefit of their creditors. Jonathan B. Brearly and IP. Kirke Adams were the partners composing such firm. The assignment was executed November 9,1882.