Volume 71 — Wisconsin Reports

The case is stated in the opinion. The defendant appeals from a judgment in favor of the plaintiffs.

The following statement of the case was prepared, by Mr- Justice Cassoday: This is an action of replevin for certain baggage and effects of the plaintiff, commenced in justice’s court. The defendant justified the detention by virtue of a lien as boarding-house keeper. On the trial before the justice, the .plaintiff recovered. The defendant appealed to the county court. The cause was noticed for trial in that court, and placed upon the day calendar for September 29, 1886.

Action to enforce a lien for labor performed and materials furnished in repairing a dwelling-house and building a barn upon land owned by the defendant.

Action to recover for legal services. A bill of particulars is-annexed to the complaint and made a part of it, containing twenty items for services rendered, commencing September 1, 1886, and ending May 2, 1887. The answer, in substance and effect, is a general denial. The plaintiffs applied to the court for a reference of the cause, but the court denied the application. The order denying the motion gives no leave to renew it.

The following statement of the case was prepared by Mr. Justice Tayloe as a part of-the opinion: Action to recover for legal services and for money expended for and on behalf of the defendant. As to thé larger part of the alleged services, the defendant denied that he had employed the plaintiff, or that such services were performed for him.

Replevin. The facts are stated in tlie opinion. At the close of the plaintiff’s testimony a motion for a nonsuit was granted, and from the judgment dismissing the complaint the plaintiff appealed. They contended, inter alia, that assent to the delivery of the deed to the defendant in escrow was given by both parties thereto.

Action upon a policy of insurance against fire. The following statement of the case was prepared by Mr. Justice Cassoday: January 26, 1885, J. H. Weed, in behalf of G. W. Roe, through, one L. D. Harmon, an insurance agent at Oshkosh, and in consideration of $60 paid to the Home Mutual Insurance Company of California, obtained from it, by the bands of its agents at Oshkosh, Palmer & McLaren, a written policy of insurance issued by said company, wherein and whereby it insured…

The case is stated in the opinion. The defendant appealed from an order overruling a general demurrer to the complaint. A railroad company is not responsible to a traveler for injuries happening in consequence of horses taking fright at the noise made by a passing train.

The plaintiff resides at Oshkosh. The night of Friday, April 23, 1886, at about midnight, he received from the defendant company a telegram from Hurley, Wisconsin, announcing the death of his son at that place, in the words: “Will died at 6 p. m. What shall we do?” The plaintiff immediately answered: “Will come on first train,” and delivered the answer to the agent of the defendant for transmission to Hurley, paying therefor forty cents.

The facts will sufficiently appear from the opinion. The plaintiff had a verdict in the court below, and from the judgment entered thereon the defendant appealed. contended that the city authorities had no notice of the defective condition of the roacl so as to charge the city with liability. Qoodnough v. Oshkosh, 24 Wis. 549; Ward v. Jefferson, id. 342; Brady v. Lowell, 3 Cush. 121.

The facts are stated in the opinion. Besides the cases referred to in the opinion, they cited Frey v. Vanderhoof, 15 Wis. 401; Thomas v. Hammond, 47 Tex. 42; Graves v. Graves, 45 N. H. 323; Ballston Spa Banle v. Marine Bank, 16 Wis. 136. They contended, inter alia, that the circuit court was justified in holding that the contract between the parties was reduced to writing and that the writing must be presumed to contain the whole contract.

The following statement of the case was prepared by Mr. Justice Cassoday: This action was commenced July 14, 1887, to restrain the town officers of Menasha from collecting a tax to pay certain bonds issued by such officers in 1871 to the Wisconsin Central Railroad Company, and to have said bonds declared void in the hands of the defendant Scott, and to restrain him from disposing of the same during the litigation.

EEEOE to the Circuit Court for Winnebago County. The action was brought against Edwin H. Abbot and John A. Stewart, as trustees of the Wisconsin Central Eail-road Company, to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the said trustees and their servants in the construction, maintenance, and care of the railroad and its equipments. The facts will sufficiently appear from the opinion.

<p> Sale of chattels: Statute of frauds: Aeceptance: Instructions to jury: New trial. </p> <p>In an action to recover $200, the price of a harvester, there was evidence of a parol contract that defendant would acce*pt the machine' if, in a field trial, the judges should decide in its favor. The court instructed the jury that this evidence was of no consequence, except as it might aid them in determining whether defendant did accept the machine, and that they had a right to take it into consideration only for the purpose of determining that question. Held, that an order granting a new trial because the court failed to instruct the jury that such promise did not constitute an acceptance and that defendant could refuse to take the machine notwithstanding the promise, must he reversed because the charge given covered the ground.</p>

This action was originally brought by the plaintiff’s intestate, Bridget Cuff, together with her husband, to recover damages alleged to have been received by the said Bridget on April 11, 1879, by reason of a defective sidewalk on Rose street in the defendant city. The complaint was afterwards dismissed as to the husband, and the action proceeded in the name of the said Bridget as the sole plaintiff.

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: The last rvill and testament of Charles McCrory, deceased, was presented to the county court of Fond du Lac county for probate, and the probate thereof was contested bjr Mary McCrory, the appellant. The county court admitted the will to probate, and from the order of that court admitting the same to probate the contestant appealed to the circuit court of Fond du Lac county.

Ejectment. The case is sufficiently stated in the opinion. to the point that the lands were taxable in 1879, although the patents therefor had not been issued, cited Wis. Gent. B. Go. v. Price Go. 64 Wis. 579; West Wis.

The following statement of the case was prepared by Mr. Justice Cassoday: This is an action of ejectment to recover about 29,000-acres of land described, and situated in Price county. The summons and complaint were served on the defendant'Com-stoclc March 1, 1884, and on the defendant land compan}r, which had succeeded to Comstoclds interest pendente lite, January 4, 1887, and which was then made a defendant by order of the court upon the application of the plaintiff.

Action to recover damages for the breach of a written agreement for the sale and delivery of a quantity of cheese to the plaintiff by the defendants, who were manufacturers of cheese. The facts are sufficiently stated in the opinion. The defendants appealed from the judgment of the circuit court reversing the judgment of the justice.

The action is replevin brought to recover six horses, three colts, thirty-five cows, thirteen two-year olds, twelve yearlings, nineteen calves, two hogs, fourteen pigs, fifty-three tons of hay, one platform wagon, one sleigh, two lumber wagons, and two sets of double harness, all alleged to be the property of the plaintiff, of the value in all of $2,850.

The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion: This action was brought to recover damages for an injury sustained by the plaintiff while in the employ of said company.

Action, to foreclose a mortgage. The affidavits of service were to the effect that the affiants did, at a certain time and place, duly and personally serve the summons and complaint (or notice of the object of the action) upon the defendants named by delivering to them and each of them a true copy thereof, and that the affiants personally knew the persons upon whom they respectively made such service to be the persons in respect to whom such service was to be made.

This ivas an action by Maggie Bowers against Jonathan U. Evans, assignee of Isaac Hodges, to recover the proceeds of certain bonds sold by said assignor. The court made the following findings of facts and conclusions of law: “ 1.

The following statement of the case was prepared by Mr. Justice Oassoday: This action was commenced April 20,1885, by the plaintiffs, as tax-payers of the city, to restrain the defendant from renting or allowing the city hall, then lately completed therein, and worth $25,000, to be used for the purposes of theaters, concerts, lectures, shows, dances, and general entertainments.

<p> Estates of decedents: Fecovery of property fraudulently conveyed, </p> <p>An administrator need not wait until the deficiency of assets is judicially determined by the allowance of claims or otherwise before bringing an action under sec. 3833, R. S., to recover property conveyed by his intestate in fraud of creditors. He should proceed as soon as he is satisfied from the inventory that there will be a deficiency.</p>

Action on two promissory notes. The facts in the case, as they appear by the testimony and the findings of the court, are as follows: November 11,1884, one McArthur and the plaintiff, Jones, were the owners, in unequal shares, of a printing establishment consisting of presses and printing materials, from which establishment was issued a weekly newspaper called “ The Dodgeville Sun.” They also owned a quantity of book-accounts, wThich had accrued in their business.

The following statement of the case was prepared by Mr. Justice Cassoday: This action was commenced in March, 1887, to restrain the defendant from letting, leasing, or allowing the mam auditorium of its city hall to be used for theaters, operas, concerts, lectures, dances, shows, or other entertainments, for profit or otherwise, and to restrict its use to municipal purposes.

The following statement of the case was prepared by Mr. J ustice Taylor as a part of the opinion: This action was brought by Elizabeth Lamar against Franh Beales to recover a part of the purchase price of certain real estate sold by her to him.

<p> Cities: Vacating streets. </p> <p>Where the common council of a city is authorized to vacate or discontinue streets it must proceed, if the charter does not otherwise provide, in the manner prescribed by sec. 904, R. S. R. S. sec. 927.</p>

The following statement of the case was prepared by Mr. Justice Tayloh as a part of the opinion: The plaintiff brought this action, on May 12, 1886, to recover $1,000, and the interest thereon, from the defendants, upon the following contract, viz.: “ This agreement, made by and between John B. Jacobs, of the town of Marinette, in the county of Oconto and the state of Wisconsin, of the one part, and Jesse Spalding, of the city of Chicago, in the state of Illinois, Abner…

The following statement of the case was prepared by Mr. Justice Cassoday: It appears from the record, and is in effect found by the court, that December 13, 1816, one Robert 0.

The action is to recover a large sum of money which the plaintiff, Daniel Wells, Jr., alleges he was induced to pay by means of certain false and fraudulent representations made to him by the defendant, Peter MeOeoeh, concerning certain large business transactions in which they had been engaged as partners, and which had culminated in heavy losses to them.

The substance of the complaint is thus stated by Mr. Justice Cassoday: The complaint in this action alleges, in effect, that the plaintiff, a woman of lawful age and a citizen of the United States and of Wisconsin, was April 5, 1887, a resident of the Second ward of the city of Racine, and had so resided continuously for the nine years immediately prior thereto; that on said day the annual municipal election in and for said city was held in the several wards therein, for the…

‘ Action to recover damages for the death of the plaintiff’s husband alleged to have been caused by the negligence of the defendant. The facts are sufficiently stated in the opinion. contended, inter alia, that it cannot be presumed that the deceased did not look or listen. His negligence in tha't regard must be proved. Hoyev. G. da N. W. R. Go. 67 Wis. 1, 15; Iloyt v. Hudson, 41 id. Ill; Massoth v. D. da H. Oanal Go. 64 N. Y. 524-529; Guggenheim v. L. 8. & M. 8.

The following statement of the case was prepared by Mr. Justice Tavloe as a part of the opinion: This is an appeal from the judgment of the circuit court of Monroe county.

Action to recover damages for the alleged negligence of the defendant in the use of a certain mill-dam and waterpower on Mill creek, in Monroe county, by retaining the water of the stream in the pond created by the dam, and discharging the same therefrom, by means whereof the plaintiff’s land below on the same stream was flowed and injured, and his crops growing thereon destrojmd, etc., etc. The complaint charges that a portion of such damages was caused in June, 1883, and a…

The following statement of the case was prepared by Mr. Justice Qassoday: At some time prior to May 14,1817, Hans C. Colstad had taken and made a homestead entry of the E. of N. E. J of section 33, township 15 N., of range- 5 W., the same then being the property of the United States, and May 14, 1877, caused a receipt for the payment of the requisite amount therefor to be recorded in the office of register of deeds.

The case is stated in the opinion. To the point that the party moving to set aside a judgment entered upon warrant of attorney must show that he has been subjected to some injustice before the court will interfere, they cited Van Steenwyck v. 8ae!cett, 17 Wis. 645, 657; Melndoe v. Hazelton, 19 id. 567; Ilerfurth v. Biederstaedt, 43 id. 633; Pirie v. Hughes, id. 531; Rollins v. Kahn, 66 id. 658.

This action is to recover commissions on a sale of pine lands in Price county belonging to the defendant Conger, alleged to have been earned by the plaintiffs as brokers. The action was originally brought against the defendant Conger and one McDonald, but was discontinued as to McDonald during the trial. Motions for a nonsuit, and that the court direct a verdict for the defendant, were denied. The case was submitted to the jury without instructions, by consent of parties.

<p>Foreclosure of mortgage: Filing notice of lis pendens.</p> <p>The filing of the notice of the pendency of an action to foreclose a mortgage is inoperative until the complaint is filed; and judgment cannot be rendered, therefore, until twenty days after the filing of the complaint. R. S. sec. 3187.</p>

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: This action was brought to recover a purse offered by the defendants, as the president, secretary, treasurer, and manager of the Eau Claire Driving Park Association, an unincorporated society.

<p> Contracts: Evidence: Purchase price: Value: Objections to account rendered: Instructions to jury. </p> <p>1. Where there is a direct conflict of testimony as to the price orally agreed to be paid for property, evidence of its real value at the time of the contract is admissible.</p> <p>2. There being a direct conflict in the evidence as to whether the defendants objected to a bill or account presented by the plaintiff, it was error for the court to ignore or suppress the evidence on the part of the defendants and to charge the jury that where no objections are made to a bill presented it is prima facie evidence of the correctness thereof.</p> <p>3. One of the defendants testified that at the time of making a contract he made a memorandum of its terms in a book kept for such purposes. The memorandum, was introduced in evidence, and there was no evidence tending to impeach the credibility of the witness in respect thereto. Held, that it was error for the court, in charging the jury, to cast suspicion and doubt upon the defendant’s testimony and to call special attention to the criticisms of plaintiff’s counsel upon the memorandum.</p>

Groix County. The following statement of the case was prepared by Mr. Justice Cassoday : August 25, 1884, the J. I. Case Threshing-Machine Company, a corporation doing business at Racine, by its agent, sold to the defendant P. F. Newell, at Hammond, St. Croix county, a separator and steam-engine for threshing grain.

Croix County. Action to set aside and have declared void all the state, county, town, school-district, and highway taxes levied upon the plaintiff’s land in the town of Emerald, St. Croix county, for the year 1883. The cause was before this court on a former appeal. See 63 Wis. 647.

This proceeding was commenced by petition by the town of Spring Lake, praying that a mandamus issue to the Board of Supervisors of Pierce County to compel them to levy a tax on the taxable property of the county to aid said town in the building of certain bridges therein. The proceeding was instituted under ch. 187, Laws of 1885.

, APPEAL from the Circuit Court for Pierce County. This was a proceeding by mandamus to compel the Board of Supervisors of Pierce Bounty to appropriate one half of the cost of the construction and repair of certain bridges in the town of El Paso in said county, and to cause the same to be levied upon the taxable property in said county subject thereto. The facts so far as they differ from those in the case of State ex rel.

Croix County. The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: Action to recover the value of some barley which was burned by sparks escaping from an engine used by the defendants.

APPEAL .from the Circuit Court for Pierce County. The case is stated, in the opinion. The defendant appeals from a judgment in favor of the plaintiff.

The following statement of the case was prepared by Mr. Justice Cassoday: It appears that July 1, 1864, the plaintiffs herein, A. L. 8.

Croix County. The facts will sufficiently appear from the opinion. The defendants appeal from a judgment in favor of the plaintiff.

Croix County. This action is to recover $1,195, being the proceeds of a quantity of personal property seized in St. Croix county in this state, by the defendant, Campbell, as sheriff of said countjq under and by virtue of a writ of attachment sued out by one Johnson against the property of Gillespie & Harper, a copartnership firm theretofore doing business in Minnesota and this state.

The following statement of the case was prepared by Mr. Justice Cassoday: This action of ejectment for a quarter section of land described, in Polk county, Wis., was commenced February 12, 1876. The complaint is in the statutory form. The only answer is a general denial.

The case is stated in the- opinion. contended, inter alia, that the evidence of the witnesses Anderson, R. W. Bridge, and Mrs. Bridge as to pain suffered by the plaintiff since the injury, and plaintiff’s nervous condition, memory, etc., was wholly incompetent. Insurance Go. v. Mosley, 8 Wall. 391; People v. Davis, 56 N. T. So; Ashlandv. Marlborough, 99 Mass. 48; Wharton on Evi. secs. 261-268; 1 Greenl. on Evi. sec. 110.

Action to recover the balance due upon a promissory note. The facts will sufficiently appear from the opinion. The plaintiff appeals from a judgment in favor of the defendant.

The following statement of the case was prepared by Mr. Justice Oassoday: This case was here on a question of pleading upon a former appeal. 58 Wis. 537.

Action to recover the statutory penalty for obstruction of a highway. Under the pleadings the issue was as to the existence of a highway at the point of obstruction, and this involved the validity of ch. 223, Laws of 1882, and the legality of the proceedings taken by the commissioners under that act.

Action to recover damages for personal injuries received by the plaintiff in a collision on the defendant’s railroad, alleged to have been caused by the negligence of the defendant’s servants. The answer among other things alleges that after the collision and injury the plaintiff, in consideration of a sum of money paid to him, by an instrument under seal, released and discharged the defendant from all claims and demands by reason of the claim set up in the complaint.

es, in substance, that the plaintiff is the owner in fee of a tract of land consisting of seven forty-acre lots, described in the complaint, through which tract the railway of the defendant company is constructed and operated; that through the negligence of the railway company, its servants and employees, fire was communicated from its locomotives, at three several times, to dry grass and other combustible materials which the company had negligently suffered to accumulate…

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: This is an appeal from a judgment entered upon an order sustaining a demurrer to the amended complaint. The following are the facts alleged in the complaint: (1) That the plaintiff is the administrator of the estate of Eobert McMillen, deceased, who died January, 1885.

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

Action to recover tbe value of twenty-nine iron beams, alleged to have been sold and delivered by the plaintiff to the defendants and to have been used by them in and about the construction of a chemical laboratory building for the-University of Wisconsin.

This action was brought to recover certain witness fees, the claim for which arose out of the following facts: In September, 1886, the defendant Bixby and other citizens of the town of Rutland, having the qualifications prescribed by statute, made application in writing to the supervisors of that town pursuant to sec. 1359, R. S., to lay out therein a certain ditch or drain described in the application.

The following statement of the case was prepared by-Mr. Justice Taylor as a part of the opinion: This action was brought to recover damages for slanderous words alleged to have been uttered and published by the defendant. Upon the trial of the action in the circuit court, the plaintiff had a verdict in his favor for $100 damages, upon which verdict judgment Avas entered in his favor, with costs of the action. From this judgment the defendant appealed to this court.

' The facts will sufficiently appear from the opinion. They contended, inter alia, that the action is one of tort. Ross v. Mather, 51 N. Y. 113; Matthews v. Gady, 61 id. 651; People v. Dennison, 19 Hun, 137; People v. Peek, 57 How. Pr. 315; Berrian v. Mayor, 15 Abb. Pr. (N. S.), 208; Peek v. Root, 5 Hun, 547. An action of tort cannot be referred without consent. Olark v. Oandee, 29 Hun, 139; Welsh v. Darragh, 52 N. Y. 590; Yerplanek v. Kendall, 45 N. Y. Super.

The case is stated in the opinion. To the point that counsel receiving pay from private parties should not have been permitted to assist in the prosecution, they cited, besides cases cited in the opinion, Comm. v. Wilson, 2 Gush. 590; Comm.

The following statement of the case was prepared by Mr. Justice Cassoday: February 8, 1885, the defendant issued to the plaintiffs its policy of insurance, whereby it insured the plaintiffs against loss by fire to the amount of $750 in several sums, upon six separate pieces of property, some of which were real estate, and some personal property, including “ $180 on the frame store-house building and shed adjoining, including scales.” B.y the terms of the policy, “ $15,000…

<p> Contracts: Consideration: Restoration of distrained cattle: Defective proceedings. </p> <p>In order to obtain possession of cattle which had been distrained by the plaintiff while they were doing damage to his crops, the owner induced the defendants to execute an undertaking for the return of the cattle to the plaintiff or the payment of the damages, etc. Held, that although the proceedings upon the distress were technically defective and the owner might have maintained replevin, yet the restoration of the cattle to the owner was a sufficient consideration for the undertaking.</p>

On the 20th of the same month she filed with the city clerk a notice of such inju^, specifying the place where it occurred and the nature of the defect in the sidewalk which occasioned it. On July 22, 1885, she also filed in. the office of such city clerk a claim for $2,000 damages for such injuries. This claim contained all the essential requisites of a complaint in an action to recover such damages. On the same day the common council refei’red such claim to a committee.

The following statement of the case was prepared by Mr. Justice Tayxok, as a part of the opinion: The plaintiff commenced an action in a justice’s court to recover the value of certain personal property, for the value of which the defendant was indebted to him; alleges the value of the property to be the sum of $81.12; and demands judgment for said sum, less $15.36, which is admitted to have been paid.

Action to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the failure of the defendant to fence its railroad as required by law. An order overruling a general demurrer to the complaint was affirmed on a former, appeal. See 62 Wis. 411. Upon the trial the jury returned a special verdict and also found generally in favor of the plaintiff, assessing her damages at $5,000.

The following statement of the case was prepared by Mr. Justice Cassoday: This action was commenced against the State Lumber Company, Edward Bradley and Allen P. Lovejoy, about May o, 1886.

Garnishment. The plaintiffs, who are judgment creditors of John Lindstrom and William Cholerton, appealed from a judgment in favor of the garnishee. The facts will sufficiently appear from the opinion. [No appearance for the respondent.]

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: The respondent commenced an action in the circuit court for Ashland county against the appellants, and filed and served the following complaint in such action: “ [Title of case.] “ The plaintiff respectfully alleges and shows to this court: “ 1.

This appeal is by the plaintiff from an order sustaining a general demurrer to the complaint.

The following statement of the case was prepared by Mr. Justice Cassoday: April 30, 1887, the city surveyor estimated the cost of an entirely new pile… Held: in effect, that, in so far as the proceedings attempted to charge the cost of such improvement against the lots fronting thereon, they could not be sustained, and accordingly that the assessments against said lots should be reversed. From the judgment entered thereon accordingly, the mayor and common council appeal.

The cause was before this court on a former appeal, and is reported in 64 Wis. 546, where a sufficient statement of the facts will be found. This appeal is by the plaintiffs from the judgment entered in the court below after the filing of the remittitur from this court on the former ap.peal. The substance of that judgment is stated in the opinion.

The following statement of the case was prepared by Mr. Justice Cassodat: May 14, 1874, the plaintiff, Richard Jones¡ became the owner of the undivided, one-half of the premises described (except the east six inches), by deed from Peter Bertholf and wife to said Richard Jones and Thomas D. Evans, reciting a consideration of $3,800, and the same was recorded.

Eor some time previous to April, 1886, down to March, 1887, the defendant O. H. Converse was carrying on business as a merchant at Milton, in Bock county. Previous to the date first above mentioned, one James Pierce, who was the administrator of the estate of one G. W. Hamilton (the deceased son of the garnishee defendant, Hannah B. Hamilton), loaned to Converse $1,100 of the moneys of the estate of his intestate. Mrs. Hamilton was her deceased son’s sole heir.

<p>Sale op Chattels: Statute oe Frauds: Evidence, (l) Payment: Credit on debt. (3) Delivery: Receipt. (8) Cross-examination: Re-examination, (j-8) Debtor and creditor: Fraudulent conveyance: Evidence: Conversion by sheriff: Demand: Instructions to jury.</p> <p>1. Where goods are sold or transferred in part payment of a debt due from the vendor to the vendee, and the latter credits the value thereof upon the account, this is such a payment for the goods as will take the sale out of the statute of frauds (sec. 2308, R. S.).</p> <p>2. It woidd seem that although goods sold are left in the possession of the vendor, if he gives a written íeceipt acknowledging that he holds them subject to the order of the vendee, this is a sufficient delivery and acceptance to take the sale out of the statute.</p> <p>8. A witness for the plaintiff who has testified on cross-examination that he had seen a credit on the plaintiff’s books, may be asked on re-examination what was the date of such credit.</p> <p>4. The question being whether a transfer of goods from L. to the plaintiff was fraudulent as to other creditors of L., evidence of the consideration L. had paid to his former partner for the latter’s interest in the goods is irrelevant, in the absence of evidence connecting the plaintiff with that transaction or showing his knowledge of its particulars.</p> <p>5. In an action against a sheriff for the conversion of plaintiff’s goods which had been seized and sold by defendant’s deputy as the property of a third person in whose possession they were found, an instruction that if the officer levied upon and sold the property in good faith the plaintiff cannot recover unless, before the sale, he demanded the goods from the officer, is held to have been properly refused, the levying officer not being the defendant, upon whom a demand was made, and the evidence not showing that the goods in question were so mingled with those of said third person as not to be readily separated. Smith v. Welch, KTWis. 91, distinguished.</p> <p>6. The court having, at the request of the defendant and again in the general charge, instructed the jury that if the sale in question was, with the knowledge of the vendee, made with intent to hinder or delay or defraud the creditors of the vendor it was void, the omission of the words “ hinder or delay,” in calling attention to it again, and the use of the expression “his creditors generally,” without adding “ or any of them,” are held not to have been misleading.</p> <p>[7. Qucere, whether a creditor who in good faith takes the property of his debtor in payment or part payment of an honest debt can be held to have committed a fraud upon other creditors because he may know or believe that the debtor is paying his debt to avoid paying other creditors,— especially where the creditor only receives goods which he has sold the debtor, and the debt is the purchase price of such goods.]</p> <p>8. The question being as to the validity of a sale of goods which were left in the possession of the vendor, the court called attention to the fact that they were so left, and, after reading sec. 2310, E. S., instructed the jury that under that section the presumption was-that the sale was fraudulent, but that if the vendee paid full value for the goods that fact would rebut the presumption of fraud. Held, that when taken in connection with the other instructions given this instruction was not erroneous as giving the jury to understand that proof of a full consideration paid would conclusively rebut all the evidence of fraud in the case.</p> <p>See note to this case in 37 N. W. Eep. 830.— Rep.</p>

Action to restrain the collection of a judgment in favor of the defendants Eldredge and Badoliffe, against Margaret and Owen McDermott, claimed to be a lien upon the plaintiff’s homestead, and to have such judgment declared to be void and of no effect. The facts are stated in the opinion. The plaintiff appeals from a judgment in favor of the defendants.

The following statement of the case was prepared by Mr. Justice Cassoday: This is an action for damages for breaking and entering the plaintiff’s close, described as seventy-four acres, on or about May 1, 1885. The answer is a general denial.

The defendant is an incorporated company carrying on the business of life insurance on the mutual benefit plan, but confines its membership to members in good standing in the Independent Order of Odd Fellows in this state, and certain female relatives of Odd Fellows, and grants insurance for the benefit of the families of the insured.

The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion: Action to recover damages for personal injury sustained by the plaintiff while in the employ of the defendant. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled by the circuit court, and from the order overruling it defendant appeals to this court.

Action to recover damages for personal injuries and the loss of personal property sustained by reason of the defective and unsafe condition of a highway in defendant city. The facts will sufficiently appear from the opinion. At the close of the trial the jury returned a general verdict in favor of the plaintiff, assessing her damages at $650; also a special verdict as follows: (1) “ Question. .Was the highway at the place of the accident in a condition of insufficiency?

Replevin. The facts are sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.

Ejectment for 160 acres of land in Wood county. To establish her title to the land claimed the plaintiff put in evidence a patent therefor, dated December 20, 1882, issued by the United States to one Watkins, pursuant to a location thereon of a military bounty land warrant numbered 50,308; and also a quitclaim deed of the same land, dated December 24, 1883, executed by Watkins to her.

The following statement of the case was prepared by Mr. Justice Tayloe: The respondents commenced an action in the circuit court of Marinette county to recover upon contract.

Action upon a promissory note for $1,000, alleged- to-have been executed and delivered by the defendants to James H. Wheeler and F. L. Stevens, copartners, in their firm name of Wheeler & Stevens. The complaint alleges-that the note was assigned by the payees to one S. A. Dean and by Dean to the plaintiff. The answer denies that the defendants ever executed or delivered the note in suit, and, on information and belief, denies that it w7as ever assigned as stated.

<p> Execution: Writ of assistance: Homestead: Divorce: Lien of judgment. </p> <p>1. A writ of assistance, under sec. 3025, R. S., to put the purchaser in possession of land sold on execution should not be issued where there is a bona fide contest as to his right to the possession of the land under such sale,— as where the defendant in good faith claims that the premises were his homestead and as such exempt from sale on execution.</p> <p>2. A judgment in a divorce action that the plaintiff wife recover a certain sum of money,— it not being declared that the same is for alimony or in lieu of alimony, or that the judgment shall be a lien upon any of the defendant’s teal or personal estate,— is a mere money judgment, and execution thereon cannot be levied on the defendant’s homestead.</p>

Action against a sheriff for the conversion of personal property. The facts are stated in the opinion. There was a verdict for the defendant; a motion for a new trial was denied; and from, the judgment entered on the verdict- the plaintiff appealed.

<p> Jurisdiction: Criminal law: New trial after affirmance of judgment. </p> <p>The circuit court has jurisdiction, under sec. 4719, B. S., to grant a new trial in a criminal case within the time therein prescribed, although, after a previous motion for a new trial had been denied, judgment was entered and such judgment has been affirmed by the supreme court on writ of error. Orton, J., dissents.</p>

<p> Criminal law: Murder: Pleading: Conviction of lesser offense: Instructions to jury: Reading statutory definition. </p> <p>1. An information for murder in the first degree will sustain a conviction of murder in the second degree.</p> <p>2. It was not error for the court to state to the jury that it was conceded by the prosecution that there was doubt as to the sufficiency of the proof of deliberation and premeditation to sustain a verdict of murder in the first degree, and hence they did not ask such a verdict, but claimed and insisted that the evidence was sufficient to warrant a verdict of murder in the second degree; such charge being manifestly designed to prevent a verdict of murder in the first degree, not sustainable by the evidence.</p> <p>8. It was not error for the court to read to the jury the statutory definition of murder in the second degree, and state that it was plain, simple, and easily intelligible, and as well understood by them as by any lawyer; that it was so plain as to need no construction; and that they were simply to determine whether or not the facts proved, if any, came within such definition.</p> <p>4. A charge that if the jury did not think the evidence had established murder in the second degree, as defined by the statute, there was another section which would authorize them to find defendant guilty of manslaughter in the second degree, though, standing alone, it might seem to intimate that the evidence was such as to authorize such finding, is not misleading or erroneous if followed by explanations of what constitutes the lesser crime, and instructions to determine from all the evidence whether such crime was committed.</p>

<p>APPEAL from the Circuit Court for Washington County.</p> <p>The action was brought in the circuit court for Pond du Lac county to recover damages for personal injuries alleged to have been sustained by reason of a defective sidewalk in the defendant city. The answer set up two separate defenses. The substance of the first is stated in the opinion. The second consisted of a general denial. A general demurrer to the first defense was sustained. Thereafter the venue was changed to Washington county, and a trial was there had upon the issue made by the general denial. An objection to the admission of any evidence under the complaint -was overruled. The trial resulted in a verdict for the plaintiff; a motion for a new trial was denied; and the defendant appealed from the judgment entered on the verdict.</p> <p>To the point that the demurrer to the first defense was properly sustained, they quoted the opinion of the circuit judge,1 and argued that the facts of this case, as shown by such opinion, distinguish it from the case of Miner v. Fond du Lao, ante, p. 74.</p>

<p>APPEAL from the Circuit Court for Kenosha County.</p> <p>Action upon a policy of insurance. The defendant insurance companj^ is a corporation duly organized under the provisions Of R. S., ch. 89, secs. 1927-1941, and the several acts amendatory thereof. In November, 1885, it issued its policy of insurance to the plaintiffs, in and by which it insured them for the term of five years against loss or damage by fire to the amount of $2,000, as follows: “ $800 on incubator building; $800 on fixtures in above building; $400 on fowls and chickens in above-mentioned building,— all situated in the town of Pleasant Prairie, county of Ke-nosha, and state of "Wisconsin, on section 2, town 1, range 22 east.” In April, 1887, the insured property was destroyed by fire. The value of the property so destroyed probably exceeded the insurance thereon.</p> <p>It appeared on the trial that the building was erected by the plaintiffs on one acre of land leased by them for that purpose. They carried on in the building the business of hatching chickens by artificial means and rearing them for the market. There was considerable testimony given on the trial tending to show that after the policy was issued additional fixtures were placed in the building without the consent of the company, which materially increased the risk of loss by fire.</p> <p>The circuit court held that the statute conferred no authority upon the defendant company to insure the incubator building and its contents; also that the undisputed evidence proved that the plaintiffs had materially increased the risk after the issuing of the policy,' without the consent of the insurance company. Thereupon the court nonsuited the plaintiffs, and rendered judgment against them, dismissing the action, with costs. The plaintiffs appeal from the judgment.</p>

<p> Street railways: Injury to passenger: Failure to stop: Slippery track: Instructions to jury: Contributory negligence: Proximate and remote cause. </p> <p>1. Plaintiff, in attempting to get on a moving street-oar, fell, and was dragged by the oar some distance before the car stopped. It was in the winter, snowing, and the oar was on a down grade. The testimony of the driver that he set the brakes and held the horses back as soon as he heard the signal to stop, and that the .car slid on the track, was contradicted by several witnesses. There was evidence that in winter, when the track was slippery, the cars would slide on the track at that place with the brakes set. Held, that a charge that it must be taken as established in the case that cars would, in the winter, on the down grade, slide on the track with the brakes set, and be beyond the control of the driver, was misleading as making no qualification as to the state of the track, and conveying the idea that the fact was established that the cars did slide on the occasion in question.</p> <p>2. Where plaintiff, in attempting to get on a moving street-oar, fell, and was dragged some 160 feet before the car stopped, he would he ’ entitled to recover, even though guilty of negligence in attempting to get on a moving car, if the driver could have avoided the injury by the exercise of reasonable care in stopping the car after he was notified that plaintiff had fallen and was being dragged by the car.</p> <p>See note to this case in 38 N. W. Eep. 347.— Bep.</p>

<p> f1, 2) Practice: Pleading: Opening ease to jury: Amendment of pleading: Waiver. (3) Instructions to jury, (j) Evidence: Court and jury. (5) Contracts: Modification: Consideration. </p> <p>1. Plaintiff’s counsel in opening the case to the jury made some remarks to which defendant objected. The court reserved its ruling until the evidence was offered^ and defendant excepted. Evidence to substantiate the remarks was then introduced without objection, but plaintiff’s request for leave to amend the complaint to correspond with such evidence was, on objection by defendant, refused by the court. Held, that the error, if any, of not declaring the remarks of plaintiff’s counsel improper, was cured by the refusal of leave to amend the complaint, even if there was not a waiver of the exception by not objecting to the testimony of the same effect.</p> <p>2. An exception to the allowance of an amendment to a complaint is waived by asking a continuance as the terms thereof.</p> <p>3. Where the jury has just been told that they must determine what is the truth between the parties “ from all the testimony,” a charge that they may decide a question as they think “truth and justice between the parties require,” is not erroneous as instructing them to determine what is just rather than what is according to the contract and the evidence.</p> <p>4. Plaintiffs’ counsel stated on the trial that the price they were to pay for certain feed was as defendant claimed, and such statement was assented to by one of the plaintiffs on the witness stand, but it did not clearly appear that the statement and assent were intended to be conclusive, and both parties afterwards introduced evidence to show what the feed was worth. Hold, that it was not error to submit the question as to the value or price of the feed to the jury, who might consider the admission, if any, with the other testimony.</p> <p>5. Parties can agree to change or modify their contracts without any new consideration.</p>

<p> Debtor and creditor: Fraudulent conveyance: Evidence. </p> <p>1. The issue being whether the sales of certain goods to the plaintiff and to his vendor, N., were fraudulent as to the creditors of N. and his vendor, it was error to admit evidence of representations made by an agent of N.’s vendor to one of the defendants from whom he borrowed money in the name of such vendor, regarding the financial condition of his principal.</p> <p>2. The plaintiff testified that he borrowed $2,000 from his brother L. to pay for the goods which the defendants claimed were transferred to him in fraud of creditors, and a deposition of L. to the same effect was read. The judgment rolls in certain actions against L. were then introduced by the defendants to show that Xi. was insolvent at the time of the alleged loan. L. was not asked whether these judgments had been paid or satisfied or to make any explanation in regard to them. Held, that it was error to admit such judgment.rolls in evidence.</p>

- The appellant was adjudged to be guilty of contempt in violating an injunctional order restraining him and others from further building a bridge across Rock river, and was ordered to pajr a fine and the costs- of the contempt proceedings, and to be imprisoned in the county jail until such fine and costs were paid, the term of such imprisonment not to exceed thirty days.

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>'The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion:</p> <p>This action was brought by the respondents in the circuit court of Milwaukee county against the appellant and one 'William T. Marshall, for an accounting in respect to the partnership business of the late firm of H. Riedeburg & Co. The business of the said firm was operating a distillery in Milwaukee, known as the “White Malt Distillery.” The plaintiffs charge in the complaint that the appellant was a member of the firm in fact, although his name did not appear in the articles of agreement signed at the time when the partnership was created. They seek to charge him, as such partner, personally for one third of the Losses of the firm, and they also seek to charge the distillery fixtures, and the lands upon which the same is situated, with one third of the losses of the firm.</p> <p>The important facts in the case are: (1) That previous to the 81st day of January, 1882, the said Schmitt and Marshall had purchased property in the city of Milwaukee, and constructed a distillery thereon, but as yet had not entered upon the business of distilling. That the agreement between Schmitt and Marshall was that they should be equally interested in the business. When they were about ready to start the business of distilling, Marshall, who was in Milwaukee and in charge of the affairs of Schmitt and Marshall there, ascertained that they could not prudently enter upon the business contemplated, by reason of some arrangements which had been made by Riedeburg. and Bodden with the brewers in said city from whom the said Schmitt and Marshall expected to receive their supplies for the distillery; and in consequence of such interference on the part of Riedeburg and Bodden, and for the purpose of starting the works constructed by Schmitt and Marshall, Marshall, without the knowledge of said Schmitt, on the 31st day of January, 1882, entered into the following written contract with the said Riedeburg and Bodden, viz.:</p> <p>“ This agreement, made and entered into the 31st day of January, 1882, by and between William T. Marshall, Henry Riedeburg, and A. G. Bodden, witnesseth, that said parties have agreed to form, and do hereby enter into and form, a copartnership to operate a distillery, to be known as the ‘White Malt Distillery,’ in the city of Milwaukee, under the firm name of II. Eiedeburg & Co., upon the following terms and conditions: Said William T. Marshall furnishes and contributed for the use of copartnership his real estate, consisting of lots two (2) and three (3), in block E, and the land in rear thereof running back to the Milwaukee river, in the Eirst ward of the city of Milwaukee, and all buildings, improvements, machinery, fixtures, and apparatus thereon and used in connection with the same, including also the buildings Nos. 929 and 931 on North "Water street in said city. Said property so furnished by said Marshall is valued at the sum of eleven thousand five hundred and fifty dollars, which is considered the capital of said Marshall in the firm. Said Henry Riedeburg and A. G. Bodden agree to furnish the necessary capital to carry on the business and operate the distillery. Each partner is to be al-lo¡wed annually interest at the rate of seven per cent, per annum on the amount of capital by him invested in the copartnership. Said Henry Riedeburg and A. G. Bodden are to have the management of the business at the city of Milwaukee. All profits and losses of the business are to be shared by and between the said three partners equally. The term of the copartnership shall be three years from the 1st day of February, 1882. Said William T. Marshall also agrees at any time within said three years, upon the request of said Henry Riedeburg and A. G. Bodden, to sell and convey an undivided two-thirds of all the property, real and personal, by him furnished to the firm as aforesaid, for two. thirds of the sum first herein mentioned.</p> <p>“In witness whereof the parties hereto have hereto set their hands and seals this 31st day of January, 1882.</p> <p>“William T. MáRshall. [Seal.]</p> <p>“Henry "Riedeburg. [Seal.]</p> <p>“ A. G. Bodden. [Seal.]</p> <p>“I, Emil Schmitt, of Cincinnati, Ohio, having an interest in the property mentioned in the foregoing agreement with said William T. Marshall, hereby give my consent to said agreement, and I agree to join with said Marshall in conveying such property in accordance with said agreement, upon the request o'f the other parties thereto as therein stated.</p> <p>“ Dated February Up, 188%. Emil Schmitt.”</p> <p>It will be seen that, after the partnership was formed between Riedeburg, Bodden, and Marshall, and on the 14th of February, 1882, Schmitt assented ta the contract made by Marshall, so far as he had undertaken to deal with the distillery and fixtures which at the time belonged to Schmitt and Marshall as joint owners. The firm of Riedeburg & ■Co. was reported to the United States authorities as composed of Riedeburg, Bodden, and Marshall, as required by sec. 2259, R. S. of U. S. Schmitt afterwards gave his written consent to the United States authorities that the property should be used by said firm for the purposes of a distillery, and subjected said real estate to all claims of the United States which might grow out of the use of said property as a distillery by said firm, as required by sec. 3262, R. S. of U. S. The firm of H. Riedeburg & Co. entered upon the business of distilling spirits under the above-named agreement, and continued it for about one year, when it was discovered that it was not profitable, the business of distilling stopped, and the business was finally closed up. The plaintiffs sold and disposed of the products of the business, and paid up all the liabilities of the firm, showing a loss of about $18,000, including interest on the plaintiffs’ advances. By this action they seek to charge Schmitt personally with one third of said losses, and also to subject the distillery, and the lands on which it is situated, to the payment of the said one-third of the losses. The learned circuit judge, after hearing the evidence in the case, rendered a judgment in favor of the plaintiffs for the one-third of said losses, against the said Schmitt and Marshall, and appointed a receiver of the property, with directions to sell the same and apply the proceeds of the sale to the payment of the one-third of said losses; and, in case the proceeds of such sale should be insufficient to pay the amount found due the plaintiffs, that an execution should, issue against the property of said /Schmitt and Marshall, or either of them, for the unpaid balance. From this judgment the defendant Schmitt appeals to this court. Marshall did not answer in the case, and judgment was taken against him by default. The evidence shows that he is pecuniarily irresponsible.</p> <p>For the appellant there was a brief by Bey <& Friend, and oral argument by Mr. G. G.Bey. To the point that Schmitt was not a partner in the firm they cited, besides cases referred to in the opinion, Frost v. Moulton, 21 Beav. 596; Bray v. Fromont, 6 Madd. 5; Fitch v. Harrington, 13 Cray, 468; Murray v. Bogert, 14 J.ohns. 318-322; Setzer v. Beale, 19 W. Ya. 274; 1 Bates on Partn. secs. 159, 164, and cases cited; 1 Bindley on Partn. (4th ed.), ch. 1, sec. 3,p. 55. The law is well settled that an agreement to use real estate for partnership purposes or as partnership property is not sufficient to convert it into partnership stock, in the absence of evidence of such intention. Alexander v. Mimbro, 49 Miss. 529; Ware v. Owens, 42 Ala. 212; FrinJc v. Branch, 16 Conn. 261; Theriot v. Michel, 28 La. Ann. 107; 2 Bindley on Partn. (4th ed.), 652 et seg., and cases cited in notes. And it is also well settled that it does not follow that real estate used for partnership purposes is partnership property. A contrary presumption prevails when the title is not in the firm, and to rebut that presumption it must appear either (1) that the property was paid for with firm money and used for partnership purposes, or (2) that it was by proper agreement actually brought into the firm; and (3) the latter must be determined by the intention, derived from the agreement and the acts and conduct of the partners. Shafer's Appeal, 106 Pa. St. 49; Hogle v. Lowe, 12 Nev. 286; 1 Bates on Partn. sec. 280. The facts in this case clearly show that the property should not be subject to the losses of the firm. Gordon v. Gordon, 49 Mich. 501; Adams v. Bradley, 12 id. 346; Robertson v. Gorsett, 39 id. 777.</p> <p>To the point that under the facts in this case Schmitt was a partner in the firm, they cited Meaher v. Cox, 37 Ala. 201; Upham v. Hewitt, 42 "WIs. 85; Fordyce v. Shriver, 115 Ill. 530; Ault v. Goodrich, 4 Buss. 430; Stowell v. Eldred, 39 Wis. 614; Goddard v. Hodges, 1 Crompt. & M. 33; Collyer on Partn. sec. 194, and note.</p>

<p>APPEAL from the Circuit Court for Columbia County..</p> <p>The case is stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.</p> <p>They contended, inter alia, that the court erred in relieving plaintiff of the burden of proving an express agreement that she was to receive something in addition to board, clothing, etc., and in casting upon the defendant the burden of proving an express agreement that she was to receive nothing in addition to board, clothing, etc. A person making another’s house his home as a member of the latter’s family, can recover for services only upon proving an express contract to that effect by positive and direct evidence. And the burden is upon the party claiming the compensation to prove the contract by such evidence. Clear and satisfactory evidence may be neither. Fisher v. Fisher, 5 Wis. 412; Mountain v. Fisher, 22 id. 93; Kaye v. Qrawford, id. 320; Hall v. Finch, 29 id. 278; Pel-lage v. Pellage, 32 id. 136; Wells v. Perltins, 43 id. 160; Q-eary v. Geary, 67 id. 248; Oowan v. Musgrave, 35 N. W. Rep. (Iowa), 496; McGarvey v. Roods, id. 488; Smith v. Myers, 19 Mo. 433; Maltby v. Harwood, 12 Barb. 473; Andrus v. Foster, 17 Yt. 556; Wilhelm v. Hardman, 13 Md. 140; Stone v. Dennison, 13 Pick. 1; Hays v. MeGonnell, 42 Ind. 285.</p>

<p>APPEAL from the Circuit Court for Wauhesha County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday :</p> <p>This is an action for damages for an alleged breach of a promise made October 26, 1885, whereby the defendant agreed to marry the plaintiff, and then refused. The answer was a general denial. Upon the trial the jury returned a verdict in favor of the plaintiff, and assessed her damages at $1,500. From the judgment entered upon such verdict the defendant appeals.</p>

REPORTED from the Circuit Court for Portage County. This case comes here on the certificate of the judge of the Seventh judicial circuit submitting to this court for determination certain questions of law pursuant to sec. 4721, R. S. The information charges that one John Pulchinski, at a time and place therein named, being armed with a dangerous weapon, to wit-, a jack-knife, “ did then and there, wilfully, maliciously, and feloniously assault, cut, stab, and wound one Mike…

<p>REPORTED from the Circuit Court for La Crosse Count y.</p> <p>The case is stated in the opinion.</p> <p>Tl^ contended, inter alia, that a sale of liquors on Sunday is illegal and prohibited by sec. 1564, R. S. This court has already given its sanction to similar provisions of the law, and held that the offense was distinct and separate from the sale of liquors without license, and has directed judgment to be entered abating the nuisance. State v. Gumber, 37 Wis. 298; Faust v. State, 45 id. 273. A license to do business does not permit the person licensed to do that business in an improper manner, or shield him from the consequences of conducting such business in a manner to disturb the neighborhood, and if he does so conduct his business, he is indictable for maintaining it as a nuisance, the same as though it were not licensed. State v. Bueldey, 5 Harr. 508; State v. Mullihin, 8 Blackf. 260; B. S. v. Elder, 4 Craneh, C. C. 507; Wood on Nuis. sec. 38; 2 Whart. Cr. Law, sec. 1449, note 4. Regardless of the provisions of sec. 1563, it has frequently been held that keeping a place of business where intoxicating liquors are habitually sold in violation of law will constitute the place a public nuisance, and that the keeper maybe indicted and the place abated. 1 Bish. Or. Law, sec. 1113 et seq; 2 id. sec. 967; State v. Williams, 30 N. J. Law, 103; Gomm. v. Shea,, 14 Gray, 386; Kroer v. People, 78 Ill. 294; State v. Wayniclc, 45 Iowa, 516; Smith v. Gomm. 6 B. Mon. 21; Wilson v. Gomm. 12 id. 2; Gomm. v. Cogan, 107 Mass. 212; Gomm. v. Mitchell, 115 id. 141; Gomm. v. Ilerrissey, 141 id. 110.</p>

<p>EXCEPTIONS from the Circuit Court for Booh County.</p> <p>The defendant Dean was found guilty under an information charging that on-May 28, 1886, at the city of Beloit, he and other persons named to the number of three and more, “ then and there being together, did then and there in a violent, unlawful, and tumultuous manner, to the disturbance of the peace and to the terror and disturbance of others then and there present, assault, strike, wound and beat [persons named], and did then and there, in a violent, unlawful, and tumultuous manner, break, injure, and destroy a bass drum and a violin and bow then and there in the possession of said [persons named], and did also in like manner then and there injure and tear the clothing of said [persons named], and other wrongs to the said [persons named] and others then and there present, then and there, violently, unlawfully, and tumultuously did, to the great damage of the said [persons named] and others then and there present, and against the peace and dignity of the state of "Wisconsin.”</p> <p>The persons assaulted and whose property was destroyed were members of the so-called “ Salvation Army.” Other facts are stated in the opinion.</p> <p>They contended, inter alia, that an innocent and lawful assembly may become unlawful upon attempting to do or in doing an unlawful act in the manner prohibited in sec. 4511, R. S., and such is the rule at common law. Bonnevillev. State, 53 Wis. 684; 2 Whart. Or. Law, secs. 1535, 1540; State v. Snow, 18 Me. 346; Whart. Or. P. & P. sec. 2220. It is the settled rule of evidence that a witness who swears positively to some circumstance which occurred and was directly observed by him, is entitled to more weight than one who testifies negatively that he did not observe the occurrence testified to by the affirmative witness. Pennoyer v. Allen, 56 Wis. 513; Italy)hv. G. (& N. W. B. Go. 32 id. 117; Draper v. Balter, 61 id. 450; Bohan v. M., Z. 8. dk W. B. Go. id. 391; Zlinton v. G. G. B. Go. 65 id. 337; Stitt v. IZuideltopers, 17 Wall. 384; Johnson v. Scribner, 6 Conn. 185; 1 Phil. Ev. 598; 1 Starkie, Ev. 8.67.</p> <p>They argued, inter alia, that the information should have been quashed because it does not charge riot as defined by the statute. There can be no riot unless there is first an unlawful assembly, and there can be no unlawful assembly without a common design. The information in this case charges neither the one nor the other; it does not charge that the defendant, with others, was engaged in any unlawful assembly, nor does it charge a common design. The unlawful assembly may have existed but a moment, bub it must exist before there can be a riot. Again, if three or more persons, “ being together,” do acts of violence without any common design, it is not riot; and allegations of each and all of the necessary ingredients of the crime should be contained in the information. Sec. 4511, E. S.</p>