Volume 64 — Wisconsin Reports

Action to recover damages for injuries to the team and wagon of the plaintiff, caused by an engine and caboose of the defendant running into them as they were crossing the railroad track upon a highway near the city of Columbus. The facts are stated in the opinion. At the close of the plaintiff’s testimony the circuit court granted a nonsuit, and from the judgment entered accordingly the plaintiff appealed.

The action was commenced in justice’s court and a judgment by default was rendered against the defendant, July 17, 1883, from which he appealed to the circuit court. On November 26, 1883, the parties stipulated that the action should be discontinued upon payment by the defendant of the sum of ten dollars damages and the costs of the action. At the December term, 1881, of the circuit court, the order was made from which this appeal is taken.

The action is upon a promissory note, dated February 2, 1883, made by the defendant Ketohum, indorsed by the defendant Jloxie, and held and owned by the plaintiff bank. The liability of the defendants to the bank on this note is not denied.

<p>Appeal to S. 0. (1) Question of fact: Bill of exceptions.</p> <p>Botjndaeies. (2) Location of quarter-section comer: Evidence.</p> <p>1. A finding of fact upon a question depending upon the weight of evidence will not be disturbed where the bill of exceptions does not appear to contain all the evidence.</p> <p>3. A party who claims that a quarter-section corner is not a lost corner, but was originally located at a certain place at some distance from where it ought to be, must not only produce evidence tending to show that it was so located, but must establish that fact by a preponderance of the evidence; and if the distaube from the proper place is great the evidence should be very clear.</p>

Action to recover a certain proportion of the value of railroad stock alleged to have been converted by the defendant town. The cause was before this court on a former appeal and is reported in 56 Whs. 314. Upon the second trial there was a verdict for the defendant, and from the judgment entered thereon the plaintiff appealed.

The case is thus stated by Mr. Justice Oassoday : “ This is an action of ejectment, commenced August 9,1883, for a part of a lot described in the village of Kaukauna. The complaint is in the usual form and alleged that the defendant had unlawfully withheld the possession since June 1, 1883.

Garnishment. The' garnishee defendant, The Phoenix Iro-surance Company of Hartford, Conn., answered denying all indebtedness or liability to the principal defendant, Waller. The plaintiffs took issue upon this answer, and upon the trial the court found in favor of the garnishee and rendered judgment dismissing the garnishee proceedings. The plaintiffs appealed. The facts are stated in the opinion.

The defendant was duly appointed a special deputy by the sheriff of Barron county to serve an execution issued out of the circuit court of that county against the property of one Lesure, the judgment debtor named therein. He thereupon levied such execution upon a large amount of personal property as the property of Lesure. The plaintiff claims such property, and brought this action to recover possession of the same. No questions are raised on the pleadings.

TLe case is thus stated by Mr. Justice Cassoday : “ The following facts appear from the record: “ January 3, 1883, one Peter Gleim borrowed of the defendant $750, and gave to him therefor his note for the amount, due in one year, secured by chattel mortgage on certain personal property therein described, including 1 six (6) milch cows ’ in Gleim’s possession, on his farm, by that description, and no other.

Action to recover damages for an assault and battery alleged to have been committed upon the plaintiff by the defendant Lem Whitehead by the advice and persuasion of his father, the defendant Henrry Whitehead, who'was present aiding and abetting in the assault. The plaintiff was a member of a brass band which, on the evening of the alleged assault, met for practice in the school-house of the district in which the defendants resided.

This action was brought to recover $1,635, alleged to have been obtained from the plaintiff by the defendant, by duress of imprisonment upon a void warrant issued upon complaint of the defendant falsely charging the plaintiff with having- committed the crime of fornication, with one Mary Jane Swartz, the daughter of the defendant, and by threats of future and further prosecutions therefor.

The following- statement of the case was prepared hy Mr. Justice Tayloe as a part of the opinion: This is an appeal from an order of the circuit court refusing to dismiss the appeal in the action.

Action to recover damages on account of the obstruction of a navigable river by the defendant by failing and neglecting to open the draw in a bridge constructed by it over such river. The facts are stated in the opinion.

APPEAL' from the Circuit Court for Hook County. The case is sufficiently stated in the opinion. argued that the father is bound to support mother and child. The mother may recover for maintenance when the child has property; not so the father. Whypjple v. Dow, 2 Mass. 415; Daws v. How-(M'd, 4 id. 97; 2 Kent’s Comm. 191.

<p> Bastardy: Likeness of child to defendant: Improper comments by counsel. </p> <p>1. In bastardy proceedings the bastard child may not be exhibited to the jury for the purpose of showing by its likeness to the defendant that it is his child.</p> <p>3. The trial court allowed the bastard child to be exhibited in evidence, but ruled that no comments should be made. Upon the alignment counsel for the state commented upon certain resemblances between the child and the defendant to which attention had not been called when the child was present. Held, that such comments were improper, and, in the absence of any direction to the jury to disregard them, might be ground for the reversal of a judgment against the defendant.</p>

This is an application for an injunction to restrain tbe defendants from using palace, drawing-room, or sleeping cars within this state, on the ground that the defendant Pullman’s Palace Oa/¡' Company has not made the reports and refuses to pay the license fee required by ch. 353, Laws of 1883.

Action for an accounting and settlement of a business carried on under the name of Emerson & Co., to which, it is alleged in the complaint, the defendant Henry 8. Du-rand,, as executor of the will of Caroline B. Durand, deceased, and trustee of her estate to hold and manage it for .his daughters, the other defendants, had contributed the sum. of $10,250.

MANDAMUS. Prior to 1879 tbe Wisconsin Central Eailroacl Company, a corporation of this state, issued certain bonds, and, as security tberefor, executed its certain mortgage or trust deed to tbe relators as trustees for tbe holders of sucb bonds.

The parties litigant are severally creditors of Boyd. Each of them commenced an action against Boyd on a separate demand, and sued out a writ of attachment therein. All of the attachments, seven in number, were levied upon the same property of Boyd. The respondent’s attachment was first levied. On his petition the property so attached was. sold pursuant to sec. 2740, R. S., and the proceeds of such sale remain in the hands of the sheriff.

The following statement of the case was prepared by Mr. Justice Tatuok as a part of tbe opinion: “ This action was commenced to recover the amount of a promissory note given by the respondent to one George H. Rice. The note had been transferred by Rice to one A. J. Woodward, in whose name the action was originally commenced.

Tbe action is for slander, and tbe appeal is from an order ovei’ruling a general demurrer to tbe complaint. Tbe other facts sufficiently appear from tbe opinion.

The case is thus stated by Mr. Justice Cassoday: “Ejectment. The plaintiff claims title to the strip of land in question by virtue of a warranty deed, bearing date May 8, 1879, executed by Morris D. Cutler, but not recorded until February 1, 1882.

This is ail appeal from ail order joining George Kern, Sr., and George Kern, Jr,, as defendants in an action brought by F&ward Winninghoff against Jacob Wittig and Louis Kern to recover a balance of $200 due Mm on the sale to them of a livery stock and business, and consolidating suck action with, one brought by the said Jacob Wittig, Louis Kern, George Kern, Sr., and George Kern,.

This is an appeal by the plaintiff from an order setting aside a verdict in his favor, and granting a new trial, and also denying his motion for leave to amend the complaint. The gravmien of the action is an alleged private nuisance created and maintained by the defendant to the injury of the plaintiff.

The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion: The defendant in error, and appellant, brought an action in justice’s court against the plaintiff in error, and respondent, for the purpose of removing him from the possession of lands described in the complaint.

Action for libel. The case is sufficiently stated in the opinion. They contended, inter alia, that if it is to be understood literally the charge that the plaintiff had become a swine is not libelous, for to allege a known impossibility is not actionable. Fen v. Dixie, Jones (W.), 444, PI. 5; Ausmcm v. Veal, 10 Ind. 355.

The case is thus stated by Mr. Justice Cassoday : “ This action is to recover damages for personal injuries sustained on the evening of December 31, 1877, by reason of a defective sidewalk in the defendant city.

Ejectment. A sufficient statement of the pleadings, showing the questions involved, will be found in the report of a former appeal in 56 Wis. 5M.' The defendant Ann Adel Anderson was formerly Ann Adel Begg, the widow of James Begg, Jr., deceased. The plaintiff appeals from a judgment in favor of the defendants.

Maranda Goodal died November 17, 1871, leaving a will in and by which she devised and bequeathed all her estate, real and personal, to the appellant, Thomas L. Newton, in trust-, to pay her debts; to erect a monument to her deceased husband; to pa}' certain legacies; to support and maintain her brother, Cyprian Chandler, and his daughter Mary G. Chandler, during their natural lives, or the life of either of them; and to pay over the residue of the estate remaining in his…

Mcmclamus to compel the laying out and establishment of a. highway. The facts upon which the decision is based are sufficiently stated in the opinion.

The case is thus stated by Mr. Justice Cassoday: “False imprisonment. It appears that, January 15, 1819, the defendant Clapps being the owner and in possession of the premises and dwelling-house in question, verbally leased the same to the plaintiff, Toal, for the term of one month, and from month to month until the said lease should be terminated by thirty days’ notice given by either party, for the monthly rental of $8.

APPEAL' from the Circuit Court for Walworth County. Action to recover damages on account of the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.

The pai’ties entered into a contract in writing, duly executed, by which the plaintiff agreed to excavate the earth and put in a certain sewer in and for the defendant city, in accordance with certain plans and specifications which are made a part of the contract. The city agreed to pay him a stipulated price therefor at the times and in the manner therein mentioned.

APPEALS from the Municipal Court of Milwaukee County. The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion: These actions were commenced in the municipal court of the county of Milwaukee against the appellants, respectively, upon three separate recognizances entered into by them for the appearance of the appellant, Wettstein, in said court to stand trial upon the charge of obtaining goods under false pretenses.

Action upon the special bond given by Edward Ehlers, as treasurer of Milwaukee county, for the safe keeping and disbursement of moneys in his hands belonging to the li Court House Eund,” created pursuant to ch. 400, P. & L. Laws of 1871. The defendants had judgment. The subsequent proceedings are stated in the opinion.

The case is thus stated by Mr. Justice Cassoday: “ The complaint, after the title of the cause, was as follows : “ ‘ The above-named plaintiff, by M. N. Lando, lier attorney, respectfully shows to this court that the plaintiff, during all the times hereinafter mentioned and prior thereto, was and now is a married woman, to wit, the wife of one Bernhard Brachman; [that the plaintiff and her husband, the said Bernhard Brachman, occupied as their home and dwelling the premises…

In June, 18Y9, a judgment of divorce was granted in favor of the plaintiff husband. Such judgment contained no provision respecting alimony or the support of children. In November, 1884, the defendant presented a petition praying that the judgment be modified or amended so as to provide for the payment of suitable aíimony to the defendant and an allowance for a child mentioned in the petition.

The defendants are trustees and the governing body of a corporation known as the Granel Grove of the United Ancient Order of Druids. On May 20, 188-1, as such trustees, and for and in behalf of such corporation, they conveyed two certain lots in the city of Milwaukee to one Heinrich Conrad, the husband of the plaintiff, with covenants of seizin, against incumbrances, and for quiet enjoyment. Conrad, the grantee, went into possession of the lots under his conveyance.

The case is stated in the opinion. 1. The gross disparity between the price paid for tbe diamond and its admitted value was evidence of fraud, and should have been submitted to the jury in connection with the other facts of the case.

The case is thus stated by Mr. Justice Cassoday: “ This is an appeal from an order overruling a general demurrer to the complaint.

Tbe facts are stated in tbe opinion. At tbe close of tbe trial in tbe circuit court the jury were directed to find in favor of tbe plaintiff. Prom tbe judgment entered upon tbe verdict so rendered, the defendant appealed. They contended, inter alia, that cb. 342, Laws of 1883, being applicable to a class of cases which is included in tbe general vagrancy act (sec. 1543, E. S.), supersedes that general act so far as tbe new and more specific provisions go.

<p> (1) Deceit: Promise. (3) Promissory notes: Consideration: Fraud: Notice. (3) Setoff: Notice. </p> <p>1. Representations, to be fraudulent, must relate to a present or past state of facts, and relief as for deceit cannot be obtained for nonperformance of a promise looking to the future.</p> <p>2. Where there is fraud in the transaction which forms the basis of consideration for a promissory note, knowledge that another note given for the same consideration is due and that interest on the notes remains unpaid, is not such notice as will affect the bona fides of a purchase of the former note.</p> <p>3. A setoff against the payee of a note cannot be claimed against a bona fide purchaser thereof before due, although he had knowledge of such setoff.</p>

The case is stated in the opinion. 1. The intention to give to the respondent only a life estate in the realty appears from the will itself. The limiting words are as inseparably connected with the devise as with the bequest; and the following paragraph disposes of a remainder in all the property given in the first paragraph. See Knox u Knox, 59 Wis. 172; Uriah’s Appeal, 86 Pa. St. 386; Metcalf v. Fram/i/ngham Parish, 128 Mass. 370; Person v. Dodge, 23 Pick. 287.

Tbe action was brought against Price Lewis, executor of the last will and testament of Thomas C. Jones, deceased, and Amanda L. Jones, widow of said deceased, to establish the title of the plaintiff to certain real property in the city of Watertown, and. to bar the claims of the defendants therein. The premises consisted of a lot having’ forty feet frontage, upon which stood a three-story brick building.

In May, 1883, the plaintiff John J. Sutton recovered a judgment in justice’s court against the defendant, Abneron Ohapman, for $159.77, damages, and $17.24, costs, and immediately filed a transcript thereof in the office of the clerk of the circuit court for Columbia county. Ohapman appealed from the judgment, but gave no undertaking to stay execution, and an execution was issued and returned unsatisfied.

The case is thus stated by Mr. Justice Cassoday: “ The complaint alleges in effect that November 13,1883, the defendant, at Columbus, Columbia county, maliciously, and with force and arms, assaulted the plaintiff, and, with intent to injure him, directed, caused, and procured him to be forcibly, and against his will, arrested, imprisoned, and restrained of his liberty for the space of six hours, without any reasonable or probable cause whatever, and without any right or…

This is an action brought to recover damages for personal injuries sustained by the plaintiff by means of a fall from his rvagon when driving his team along the public highway in front of defendant’s dwelling.

Action to recover the value of eleven promissory notes of various amounts, aggregating in all $619.15, alleged to have been delivered by the plaintiff to the defendants, as his bankers, during the years 1883 and 1884, for collection, and which they refused, after a demand, to surrender or account for. The answer admits possession of the notes and their value and the refusal to give them up on demand.

Action upon an account for wire sold to tbe defendants to tbe amount of $948.11.

This appeal is from an order of the county court dismissing an appeal by the plaintiff from the judgment of a justice of the peace, because the same was not brought to a hearing before the end of the second term after the return of the justice was filed in that court.

<p>APPEAL from the County Court of MihoauJeee County.</p> <p>The case is sufficiently stated in the opinion.</p>

The action was commenced in 1862 against the Marine Bank of Milwaukee as an insolvent corporation, and the other defendants as its stockholders, to enforce their liability under the statute. The reports of former appeals in the course of the litigation will be found in 14 Wis. 105; 17 id. 545; 18 id. 490; 55 id. 387, 598; and 60 id. 16. On April 27, 1869, it was adjudged that the defendant bank had surrendered its corporate rights and franchise and that it be dissolved.

Tbe following statement of tbe case was prepared by Mr. Justice Cassoday: Tbe plaintiffs were engaged in tbe business of furnisbing wood by contract at Gill’s Pier, Michigan. Tbe defendant was a wood and coal dealer at Milwaukee.

The action was brought in the name of the county judge of Milwaukee county against the heirs of one Charles P. Everts upon a bond given by Maurice Fitzgerald, as administrator de bonis non of the estate of John Fitzgerald, upon obtaining license to sell land. The said Charles P. Everts was one of the sureties upou the boud. The facts are sufficiently stated in the opinion. See, also, the case of Estate of Fitzgerald, 57 Wis. 508.

This action was brought under the statute (E. S. sec. 3358), before a justice of the peace, to obtain restitution of a certain store building in the city of Milwaukee which the plaintiff had theretofore leased to the defendant. It is alleged that the defendant holds possession thereof contrary to a covenant of the lease against underletting.. Subd. 3. Service of statutory notice requiring delivery of the possession of the leased premises is also alleged and admitted.

Action to recover damages for an injury to the person of the plaintiff caused by her falling through a hole in a sidewalk in the defendant city. The material portion of the answer and the view taken by this court of the evidence, will appear from the opinion. The county court instructed the jury as follows: “ 1.

The case is sufficiently stated in the opinion. The defendant appealed from a judgment in favor of the plaintiff. to the point that the amount awarded by the commissioners was not admissible in evidence, cited Wooster v. 8. E. Y. JR. Oo. 57 Wis. 311; Watson v. JM. db M.. JR. Oo. id. 332, 340; JEnnis v. W JR. JB. JR. Oo. 12 R. I. Y3; Sherman v. St. P., JM. db M. JR. Oo. 30 Minn. 227; Oentral JBanls v. St. John, 17 Wis. 157; Oaswell v. O. db If.

Action for libel, commenced in the circuit court for Calumet county. The venue was changed upon the application of the plaintiff, on the ground of prejudice of tho judge, to Manitowoc county. Afterwards the plaintiff applied for a change of venue to Milwaukee county for. the convenience of witnesses.

The case is thus stated by Mr. Justice Cass©dat: “June 28, 1884, the plaintiff obtained a judgment against the defendant before a justice of the peace. July 1, 1884, the defendant appealed therefrom to the county court. August 22, 1884, the appeal was noticed for trial at the September term of that court, and placed upon the calendar for trial at that term, but was continued at the request of the plaintiff and by the consent of the defendant.

The defendant issued to the plaintiff its policy of insurance, by which it insured him against loss by fire to the amount of $2,000, as follows: “ On household furniture, useful and ornamental, beds, bedding, linen, family wearing apparel, printed books and music, silver plate and plated ware, pictures, paintings, engravings, and mirrors, and their frames, at not exceeding actual cost, pianoforte, and sewing-machine, if any, fuel and family provisions, all contained in the…

<p>APPEAL from the County Court of Milwaukee County.</p> <p>The case is sufficiently stated in the opinion.</p>

The case is thus stated by Mr. Justice Cassoday: “ This action is for damages by reason of the death of the intestate, the plaintiff’s son, a lad of nearly seven years, who was run over and killed by a switch-engine in a street crossing in Fort Howard. On the first trial the plaintiff was nonsuited and the judgment was reversed on appeal. 49 Wis. 529.

REPORTED from the Circuit Court for Walworth County. The defendant was informed against for the crime of forging a promissory note, and was tried therefor, and convicted. The alleged forgery consisted in altering a valid promissory note. The original note was as follows: “ Elkhoen, May th 28, 1884. “ For value received, three months after date I promise to pay to Wm.

<p> Sale of chattels: Evidence. </p> <p>A finding of the trial court that plaintiff contracted to deliver only one car-load of oil to the defendant, is held to be sustained by the evidence.</p>

Action for a divorce, brought by the wife. A judgment in her favor for a divorce and a division of the defendant’s property, was rendered December 22, 1884. February 2, 1885, defendant petitioned for a modification of the judgment, and an order denying such petition was made February 6. The defendant appealed from such order and also from the judgment.

Action upon a policy of insurance against fire. The facts will sufficiently appear from the opinion.

Oroix County. Action to recover damages on account of the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant’s servants. The substance of the answer, and the principal facts shown by the evidence and found by the''jury in their special verdict, are stated in the opinion. Two men, J. D. Rulien and E. C. Marvin, besides the deceased, rode in a oar with the horses.

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

Action upon a policy of insurance against fire covering a dwelling-house and other farm buildings. The dwelling-house was destroyed by fire November 14, 1883. The evidence given upon the trial and the special findings of the jury are sufficiently stated in the opinion. The defendant appealed from a judgment in favor of the plaintiff.

EEEOE to the Circuit Court for PolJc County. The information contained two counts, the first charging the defendant with the crime of rape, and the second charging an assault with intent to commit that crime, upon his daughter, a girl about thirteen years of age. The defendant was found guilty under the first count. Other facts are stated in the opinion.

The case is thus stated by Mr. Justice Oassoday: “ By agreement tlie trains of tbe Wisconsin Central Bail-road Company lia'd the privilege of running upon and over the defendant’s line of road between Milwaukee and Schwartzburg, a distance of about nine miles.

An instrument in writing purporting to be the last will and testament of Minna Walter, late of the county of She-boygan, deceased, was presented for probate to the county court of that county by' George V. Whiffen, the executor therein named, and was admitted to probate by that court. The instrument is written in the English language. At the time of her death the estate of the testatrix consisted of her wearing apparel, some bedding, and about $1,000 in choses in action.

The action was commenced in justice’s court. A trial by jury resulted in a verdict and judgment for the plaintiff, and the defendant appealed to the county court. In the latter court the defendant objected to the introduction of any evidence under the complaint on the ground that it did not state a cause of action. The court sustained the objection and directed a verdict for the defendant. Erom the judgment entered on such verdict the plaintiff appealed.

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

The following statement of the case was prepared by Mr. Justice Oassoday: This action is to recover for services rendered and moneys expended by the plaintiff as attorney for the defendant. The answer denies the extent and value of the services and the amount of money expended. On application of the plaintiff, the court, July 15, 1884, ordered that the issues be referred to a commissioner to hear and decide the whole issue and report thereon to the court.

The case is fully stated in the opinion. contended, inter alia, that an attorney has a lien upon a judgment obtained for his client, and that such lien is not measured by the taxable costs. If the value of his services is fixed, he has a lien for that amount; if not fixed, he has a lien for what they are reasonably worth, liooney v. Second Ave. F. do. 18 N. Y. 3G8; Waned v. Syme, 9 IIow.

Ejectment for the north half of the west forty-five acres of lot 7 of the town of Brothertown, county of Calumet, and state of Wisconsin. The plaintiffs claim the lot under a patent issued to them, and to deceased co-trustees, by the United States, dated June 10, 1878, which purports to grant to such trustees for the Brothertown Indians, among other lands, the lot in controversy.

The action is replevin for a lot of sheep, lambs, and wool, seized by the defendant, as sheriff, by virtue of a writ of attachment in his hands, which was sued out by one Murray against the property of Lysand Morgan, the son of the plaintiff. The verdict is that the plaintiff was not the owner of the property replevied, and that the same was not wrongfully detained by the defendant.

Garnishment. The facts are stated in the opinion. The issues were tried by the court, which found that the assignment to the garnishee was regular and valid. Prom a judgment accordingly, dismissing the garnishee proceedings, the plaintiff appealed.

The case is stated in the opinion. They contended, inter 'alia, that a stipulation limiting the liability of a telegraph company is valid when gross negligence or fraud is not shown. Heimamm, v. W. TJ. Tel. Go. 51 Wis. 562; Young v. W. U. Tel. Go. 65 N. Y. 163; Clement v. W. TJ. Tel. Go. 131 Mass. 463; Qrinnell v. W. TJ. Tel. Go. 113 id. 299. The rule 'applicable to common carriers applies with equal force to telegraph companies. Boorman v. Am. Exp.

<p>Highways. (1, 2) To lands excluded therefrom: Connection with other highways. (3) Non-user or abandonment of part of highway. Acceptance of damages for laying out: Estoppel.</p> <p>1. The order for laying out a highway under seo. 1275, ,R. S., need not state that it connects with another highway.</p> <p>2. If it be proved that a highway laid out under sec. 1275, R. S., connects with a commonly used and traveled highway, it need not be further shown in order to sustain the validity of the former, that the latter is a legal highway.</p> <p>8. Although only a portion of a highway has been continuously used, the other part does not for that reason cease to be a highway.</p> <p>4. Acceptance of the damages assessed for the laying out of a highway over his land will estop the owner and those claiming under him from denying the legal existence of such highway.</p>

The following statement of the case was prepared by Mr. Justice Cassoday : This action is to recover moneys alleged to have been received by the defendant from the plaintiff, and which the former refused to pay over on demand. The answer was a general denial.

The plaintiffs are Irene Tipping and William Tippmg, minors, by William T. Eox their guardian ad litem,, Mary Jame Tipping, and WilUam T. Fox.

The plaintiffs, who are partners, sued out a writ of attachment on a demand against the defendant, and caused his goods to be seized by virtue thereof. The affidavit annexed to the writ alleged, as grounds for the attachment, that the defendant had made a fraudulent disposition of his property, and that he fraudulently contracted the debt sued for.

The following statement of the case was prepared by Mr. Justice Tayloe, as a part of the opinion: This action was brought to recover the possession of two heifers two years old and three calves, of the alleged value of $80. The facts are as follows: Louis Townsend Avas the ovyner of the heifers and calves; both plaintiff and defendant claim under him.

The following statement of the case was prepared by Mr. Justice Tayloe, as a part of the opinion: This is an appeal from an order overruling a demurrer by the defendant to the complaint in the action.

The case is sufficiently stated in the opinion. There was a verdict and judgment for the plaintiff for $100 damages. The defendant appealed.

The following statement of the case was prepared by Mr. Justice Cassoday : This action was commenced April 10, 188é, to set aside the taxes levied and assessed on the lands described in the •complaint in the year 1883, and to restrain the defendants from selling the same for the nonpayment of said taxes, on the ground that none of said lands were liable to taxation; in that year, under the act of Congress of May 5, 1864, and the laws of this state.

This is an action of replevin for a piano, commenced in a justice’s court and taken thence to the circuit court by an ■appeal from a judgmentin favor of the defendant. In the •circuit court a jury was waived.

During some portion of the year 1884, the plaintiffs (who are partners doing business at Milwaukee) sold goods on credit to the defendants, who were partners and retail merchants at Ogema, in Price county. November 28 in that year, the plaintiffs commenced an action against the defendants for the amount unpaid on account of such sales, and sued out a writ of attachment therein against the property of the defendants.

The case is stated in the opinion. They contended, inter alia, that the action could be maintained under sec. 3186, K. S. The plaintiff is in possession, and tbe receiver’s receipt is presumptive evidence of title. B. S. sec. 4165; Braclcen v. Preston, 1 Pin. 599; Cornelius v. Fessel, 58 Wis. 243. Ejectment may be maintained by a homestead claimant. B. S. sec. 3197. Tbe only relief plaintiff could bave was in equity.

The case is stated in the opinion. They contended, inter alia, that, for the purpose of identifying the note and deed and showing what was the consideration of each, the evidence of the defendant should have been admitted. One of his answers which was stricken out was that the land was the consideration for the note. This related in no way to a transaction with the intestate. Stewaid v. Stewart, 41 Wis. 624; Pagev.

The case is thus stated by Mr. Justice Oassoday: “ January 1, 1883, the plaintiff resided at Bhinelander, and owned the span of horses in question and a pair of sleighs, and had a hired man to drive them, to whom he was paying §35 per month. The defendant was at the time engaged in lumbering; getting in saw-logs at two different camps, one at Bocky Bun and the other at Sugar Camp.

The case is stated in the opinion. A jury was waived and the trial by the court resulted in findings and a judgment in favor of the plaintiff. The defendants appealed.

Tbe complaint alleges that the plaintiffs were the owners and entitled to the immediate possession of 290,000 feet of sawed pine lumber, of the value of $4,060; and that the defendant on November 1,1882, being then in possession of said lumber wrongfully converted the same to his own use, to the plaintiffs5 damage $4,060. The answer was a general denial. The facts sufficiently appear from the opinion.

Tte action was brought under sec. 3186, R. S., to remove •a cloud from tbe title to twenty acres of land in Jefferson county, and to enjoin the execution of a deed thereof by the sheriff of said county to the defendant Ilenry Heady, under a certificate of sale issued to said defendant upon an execution sale. The land in question formerly belonged to Green Manning.

<p> Supplementary proceedings: Discretion: Appeal. </p> <p>The order and scope of the examination of a judgment debtor in a proceeding supplementary to execution are largely in the discretion of the judge or commissioner before whom such examination is being taken; and this court will not interfere and limit such examination unless it clearly appears that there has been an abuse of discretion in requiring the debtor to answer improper interrogatories.</p>

Action to foreclose a mortgage given by tbe Lincoln Lumber Company to Mwrray Haywood and George Haywood, Jr., tbe plaintiffs and appellants, and T. P. Mathews and one George C. Smith. The plaintiffs and Mathews and Smith were, at tbe time tbe mortgage was given, directors of tbe lumber company, Mathews being also tbe president, and George Haywood, Jr., being the secretary and treasurer, of tbe company.

In February, 1883, the plaintiffs shipped over the railroad of the defendant company two car-loads of potatoes from Lyndon, in Juneau county, to Chicago. The cars were fitted up by the plaintiffs, with a bin in each end, so constructed as to admit the circulation of air under and on all sides of them. A stove was placed in the center of each car, and one of the plaintiffs went with the cars to Chicago, and kept fires in both stoves during the transit.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant’s servants. The facts are stated in the opinion.

Tbe following statement of tbe case was prepared by Mr. Justice Taylor, as a part of tbe opinion: Tbe respondent brought an action against Mary J. Wilkinson to recover a debt due upon contract, and garnished tbe appellant, Frank Barr. Barr answered in tbe garnishee action, and denied all indebtedness and liability as garnishee. Tbe respondent took issue upon tbe answer. Tbe issue in the garnishee action was tried in tbe circuit court by tbe judge without a jury.

<p>Trusts and Trustees: Former Judgment. (1) Failure to invest trust fund: Interest chargeable to trustee. (%) Action for breach of trustee’s bond: Former judgment. (8) Safety of investment.</p> <p>1. Where a trustee is required to invest the trust fund in. U. S. bonds or on real estate security, the interest which he might have obtained on real estate security of the proper character is the measure of his liability for a failure to invest the fund.</p> <p>2. A former judgment in an action upon a trustee’s bond for a breach of the condition “ that he shall pay all moneys which it shall become his duty to pay as such trustee,” by a refusal to pay over certain interest to the cestui que trust, is not a bar to another action upon the bond for a breach of the condition to keep the trust fund properly and constantly invested.</p> <p>[3. Whether a trust for the investment of money “ in U. S. bonds or in other safe manner with ample real estate security,” does not require that any investment other than in U. S. bonds shall be absolutely safe and the security absolutely ample, and make the trustee an insurer of the fund, both principal and interest, or at least that such other investment shall be as safe as one in U. S. bonds, not determined.]</p> <p>As to investment of trust funds, generally, see 25 Am. Law Keg. 217. — Rep.</p>

This is an action of ejectment, commenced August 25, 1881. Tlie plaintiff sues as assignee of Isaac Hodges, under a general assignment for the benefit of the creditors of the latter. The defendants are the widow and two of the sons of Enoch Enloe, deceased. The complaint is in the statutory form. The answer admits that the plaintiff is such assignee, but otherwise is a general denial, and nothing more.