Volume 72 — Wisconsin Reports

The following statement of the case was prepared by Mr. Justice Cassoday: The information, in effect, charges that on April 5,1887, and in the night-time of that day, the plaintiff in error, at Richland count}1-, did with force and arms a certain building then and there situate, then and there being the property of and occupied by Jabish Weir, then and there feloniously and burglariously break and enter, with intent the goods and chattels of said Weir in the said building…

<p>Ceiminal Law and Practice. (1) Change of venue. (SJ View: Waiver of right to he present.</p> <p>1. “ The next term succeeding that at which the accused shall have been arraigned,” in sec. 4680, R. S., means the next term after the arraignment at which the petition for a change of venue might properly be presented to the court. Thus, where the accused was tried and convicted at the term at which he was arraigned, and the cause was pending in this court on writ of error during the succeeding three terms of the trial court, and was remanded during the fourth term thereof, such fourth term was the “ next term,” within the meaning of the clause above quoted. State v. Roivan, 35 Wis. 308, distinguished.</p> <p>2. Where, on a trial for murder, the accused expressly waives his right to be present at a view of the premises where the murder is alleged to have been committed, the view may bo had in his absence.</p>

The plaintiff in error was convicted both before a justice of the peace and in the circuit court of the offense of selling intoxicating liquors without a license. A sufficient statement of the principal facts in the case will be found in the opinion. The instructions therein referred to, asked on behalf of the defendant and refused by the court, were as follows: “ 1.

REPORTED from the Municipal Court of Milwaukee County. The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion: The defendant was tried and convicted in the municipal court of Milwaukee county upon the following information, viz., after the title of the case: “I, J. W. Wegner, district attorney for said county, hereby inform the court that on the third day of September, in the year one thousand eight hundred and eighty seven, at the…

The following statement of the case was prepared by Mr. Justice Cassoday: August 23,188C, Michael Slinger died at Merrimack, Sauk county, Wis., leaving a paper writing, purporting to be his last will and testament, of which the following is a copy: “ In the name of God, amen.

<p> Novation: Money had and received. </p> <p>Defendants, in paying laborers on the construction of a railroad, retained the amount owing by each laborer for board, it being the understanding of all parties that the amounts so retained should be paid to the respective boarding-house keepers. Held, that the plaintiff, who was one of such boarding-house keepers and the assignee of the others, could recover from the defendants the amounts so retained.</p>

The facts are stated in the opinion and in the report of the former appeal. 67 Wis. 668. Upon the second trial the plaintiff had a verdict for $7,600, and from the judgment entered thereon the defendant appealed.

<p>ERROR to the Circuit Court for Orawford County.</p> <p>The plaintiff in error was convicted in the circuit court for Crawford county upon an information filed in the circuit court for Yernon county, which was as follows, omitting the formal parts: “I, O. B. Wyman, district attorney for said county, hereby inform the court that on the 7th day of November, in the year 1885, at said county, N. T. Davies and Andrew Chute with force and arms did make an assault in and upon one Ellen Peterson, then and there unlawfully and injuriously and against the will of her, the said Ellen Peterson, and without any legal warrant, authority, or reasonable or justifiable cause whatever, did imprison, and detain so imprisoned, her, the said Ellen Peterson, there for the space of one hour next following, and other wrongs to the said Ellen Peterson then and there did, to the great damage of her, the said Ellen Peterson, against the peace and dignity of the state of Wisconsin. Second, That on the 7th day of November, in the year 1885, at said county, said N. T. Davies, and Andrew Chute did unlawfully assault, beat, bruise, and otherwise ill-treat her, the said Ellen Peterson, against the peace and dignity of the state of Wisconsin.”</p> <p>Other facts are stated in the opinion.</p>

<p> Criminal law: Writ of error: Appointment of attorney to prosecute. </p> <p>The appointment of an attorney by the trial court to defend a person charged with any offense is a sufficient authority for the attorney to prosecute a writ of error in this court.</p>

Groix County. The following statement of the case was prepared by Mr. Justice C'assoday: This action was brought to recover damages alleged to have been sustained by Walker, Judd & Yeazie, in the summer of 1883, by reason of a jam of saw-logs in the St. Croix river, caused by the acts and negligence of the defendant and its booming works, and which damages were transferred to the plaintiffs.

This is an action of ejectment brought by the plaintiffs to recover a large number of lots in the city of Ashland, Ashland county. The complaint is in the statutory form. The defendant in its answer denies the plaintiffs’ title to the. lands claimed, and claims title thereto in itself, under certain tax deeds executed by the county of Ashland to one Edwin H. Abbot, and certain mesne conveyances thereof by Abbot to the defendant.

Petition for a writ of mandamus. The following statement of the case was prepared by JVIr.

Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant in not keeping a certain drawbridge in repair. At the close of the testimony the court granted a nonsuit. Plaintiff appeals.

<p> (1) Contract: Parties: Partnership: Abatement of action, ("SJ Illegal contract. (8) Appeal from J. P.: Judgment: Costs. </p> <p>1. A party cannot maintain an action in his own name alone upon a contract made by him for and on behalf of himself and another person as his partner.</p> <p>2. Where a city ordinance prohibits any person from exercising a particular calling in the city without a license, and imposes a fine for so doing, one who has contracted with another to exercise such calling, but has obtained no license, cannot maintain an action, on the contriltet.</p> <p>8. The justice’s fees paid by a party on taking an appeal from a justice’s court should not be included in a judgment against him in the circuit court.</p>

<p> Master and servant: Injury from defective appliances: Oontrtbutory negligence of fellow-servant. </p> <p>An employer who has negligently permitted the use of a machine in doing his work, which, by reason of its defects, is unnecessarily dangerous to his employees, is liable for an injury resulting from its use to an employee who was not himself negligent, even though a co-employee was guilty of negligence in managing the machine, and if it had been carefully handled the accident would not have occurred.</p> <p>See note to this case in 39 N. W. Rep. 365.— Rep.</p>

<p>APPEAL from the Circuit Court for Brown County.</p> <p>The facts will sufficiently appear from the opinion. The plaintiff appealed from an order overruling the demurrer to the counterclaim.</p> <p>in addition to cases referred to in the opinion, cited Delaney v. McDonald, 41 Wis. 108; Yan Trott v. Wiese, 36 id. 439,448; Oase v.í?ish, 58 id. 56-108; Adams v. Sage, 28 N. Y. 103; 2 Parsons on Cont. (6th ed.), 782, and cases cited.</p> <p>They contended, inter alia, that the affirmance of a contract by a vendee after discovery of the fraud merely extinguishes his right to rescind. His other remedies remain unimpaired. Benj. on Sales (3d Am. ed.), sec. 452, note a, and oases. The counterclaim is for the recovery of damages and not for a rescission of the contract; hence a receipt of part of the damages does not bar the recovery of the whole. Ellis v. Esson, 50 Wis. 138. A plea of accord and satisfaction is not good unless it alleges that the matter was accepted in satisfaction. Maze v. Miller, 1 Wash. O. C. 328; 2 Parsons on Cont. 685, and notes; Bull v. Bull, 43 Conn. 466.</p>

The following statement of the case was prepared by Mr. Justice Oassoday: The defendants were sued as trustees of the Wisconsin Central Railroad Company, for the value of horses killed June 15, 1883, by reason of their running into a railroad bridge of the company, in consequence of its track not having been fenced. The material allegations of the complaint were denied.

, The facts are stated in the opinion. They contended, inter alia, that under sec. 2360, R. R, cruel and inhuman treatment cannot be set up as a defense, counterclaim, or bar to an action for divorce on the ground of adultery. The legislature, having specified just what causes should constitute a bar to a suit for divorce on the ground of adultery, may be fairly presumed to have enumerated all the causes which should be available for that purpose.

Ejectment for two lots in the town of Ashland, in the county of Ashland, according to the recorded plat of such town.

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>The case is sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.</p>

The following statement of the case was prepared by Mr. Justice Tayeor as a part of the opinion: This is an appeal from an order of the circuit court allowing the plaintiff and respondent to amend the summons and complaint in the action by substituting the names of Tom-kins & Merrill, attorneys of said circuit court, in lieu of A. C. Brown, to the summons and complaint, as attorneys of record, on the payment of $10 costs, and serving on the defendant’s attorneys a copy of…

<p> Contracts: Construction: Validity: Statute of frauds: Interest in lands: Partner ship: Accounting. </p> <p>1. Where a contract is fairly open to two constructions, by one of which it would be lawful and by the other unlawful, the former must be adopted.</p> <p>2. An oral agreement by which plaintiff and another person were to look up and locate lands, and the defendant was to enter and pay for the same and take the title in his own name, and after-wards sell and dispose of them for the benefit of all, and pay to the plaintiff one fourth of the proceeds of such sale, is not void under sec. 2303, R. S., as creating an estate or interest in lands,— the proceeds being referred to merely as a measure of the compensation to be paid plaintiff for his services.</p> <p>3. Under such contract there could be no question of profits or losses, and hence there was no partnership and no occasion for an accounting.</p> <p>See note to this case in 39 N. W. Rep. 383.— Rep.</p>

<p> (1) Tax sales: Preliminary injunction, when granted, (a) Common schools: Toivnship system:. Constitutional law. (8,4,) Taxation: Review of action of county board ordering inspection of lands: Reports of inspectors: Board of'review. </p> <p>1. A preliminary injunction to restrain the sale of land for taxes should not be granted or continued except where it is clear that it is necessary to protect the plaintiff’s rights and to secure to him the benefit of the litigation if he is finally successful.</p> <p>3. The law authorizing the township system of school government violates no principle of local self-government or of uniformity secured to the people or provided for in the constitution. [Art. X, sec. 3.]</p> <p>3. In an action to set aside a county tax levied to pay the expenses of an inspection of lands under sec. 1053, R. S., the court will not review the action of the county board in ordering the inspection or in fixing the compensation of the inspectors.</p> <p>4. The reports of land inspectors appointed under sec. 1053, R. S., may properly he resorted to by the board of review, when acting upon the assessment rolls, as sources of information in regard to the value of lands.</p>

<p> (1) Writ of error, when lies: Compulsory reference, (it) Promissory note: Payment: Interest. </p> <p>1. A writ of error lies after judgment in any action at law in a court of record, although the court had power to award, and did a Yard, a compulsory reference. Croclcer v. State, 60 Wis. 553, explained and distinguished.</p> <p>2. Plaintiff agreed, at the time the note in suit became due, not to insist on payment then if he could get money and goods from defendant’s store when he wanted them. An account was then o pened between the parties, and continued for about three years, when it was closed. Held, that the accounts and demands should be adjusted by striking a balance between the accounts at the time they were closed, and applying it as of that date as a payment on the note.</p>

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

<p> Evidence: Presumption of death. </p> <p>A person who has not been heard of for seven years is presumed to be dead, but the question when such presumed death occurred is to be determined from ali the facts and circumstances in the case, there being no presumption either of life or death at any particular time during the seven years.</p>

<p>Costs. (1J When security may be required. (%J Dismissal of action: Notice of motion. (3) Taxation without notice: Offer of retaxation: Reversal of judgment.</p> <p>1. Under sec. 2942, R. S., the trial court may, in its discretion, require the plaintiff to give security for costs; and this it may do on the defendant’s motion.</p> <p>2. Upon failure of the plaintiff to file the required security, the court may under sec. 2946, R. S., dismiss the action on motion of the defendant; and notice of such motion need not be given to the plaintiff.</p> <p>3. Costs having been taxed in favor of the defendants without due notice, the plaintiff moved to set aside such taxation and to vacate the judgment. Defendants thereupon consented in writing to a retaxation at any time the plaintiff might name, and offered to remit from the judgment any items of costs which might be determined to he improper or not taxable. Held, that the plaintiff, not having availed himself of such offer, cannot have the judgment reversed because the costs were originally taxed without notice.</p>

<p> New-trial: Discretion: Value of land: Verdict contrary to evidence. </p> <p>The question being as to the i alue of laud condemned for a street, the owner introduced three witnesses, each of whom was a dealer in real estate and apparently well acquainted with the value of the property, each of whom fixed the value of the land at $7,000 and upwards. The city introd uced five witnesses, none of whom were experts or shown to have any special knowledge as to the value of the land in question, and they fixed its value at from $3,200 to $4,000. The jury assessed the value at $4,000. Held, that there was no abuse of discretion in granting- a new trial.</p>

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion:</p> <p>The appellant sued out an alternative writ of mandamus from the superior court of Milwaukee county, directed to the respondent, commanding him to accept the sum of $870, and execute a receipt for a license for eighty-seven cars of the relator to be run by said railroad company for the current year upon its railroad in said city. On the return of said writ the respondent moved to quash it on the ground that the facts stated in the petition and writ do not justify the court in issuing the same. The motion to quash the writ was granted, and from the order granting such motion the relator appeals to this court. The petition for the writ .sets up the following facts:</p> <p>(1) That the petitioner is. a corporation incorporated under the general laws of this state, and is engaged in the operation of a street railway in the city of Milwaukee, and has been since December, 1874; that in 1874, being then such corporation, and being desirous to construct and operate .a street railway in the public streets of the city of Milwaukee, it applied to the said city for a franchise to construct, operate, and maintain a street railway in said city/ and thereupon the city of Milwaukee, in pursuance of ch. 313, Laws of 1860, passed an ordinance, December 28, 1874, which was duly approved by the mayor in January, 1875, wherein and whereby said city granted to the corporators (naming them), their successors and assigns, the exclusive right, permission, and authority to lay a single or double-track railway in certain streets in said city in said ordinance specified. Sec. 7 of said ordinance is in the words following: “The rate of fare .for any distance shall not exceed five cents, except when cars or carriages shall be chartered for specific purposes; but before any car or carriage shall be used or operated on said railway, said grantees, their successors or assigns, shall pay to the said city a license fee of $10 per annum for each car or carriage; said license fee to be paid and a license for such car or carriage to be obtained in the same manner as regulated, by ordinance respecting hacks in said city; and any officer, conductor, driver, or agent of said grantees, their successors or assigns, who shall operate or cause to be driven or operated upon said line or railway any car or carriage unless the same shall have first been duly licensed, as herein provided, shall be punished by fine, not less than $10 nor more than $50.”</p> <p>(2) The petition alleges that the corporation accepted the said ordinance, and constructed its road in accordance with the provisions thereof, and has operated the same and paid the license fee prescribed by said ordinance down to and including the year 1887. .It also alleges that the property of said corporation is regularly assessed and taxed by said city, and that the company have regularly paid all taxes assessed thereon.</p> <p>(3) That in the year 1388 the city of Milwaukee pássé'd a new ordinance, by the terms of which it was provided, among other things, that no company should operate, run, or caúselo be operated or run, upon any street railway in the city of Milwaukee, any car without paying a license for each such car or vehicle; that such license should be granted by the mayor, signed by the city clerk, and sealed with the corporate seal' of the city; and that no license should be issued until the party applying for the same should present to the. city clerk the treasurer’s receipt for the payment of the annual license fee; that the license fee for licenses for each car or other vehicle so operated by any such company should be $15.</p> <p>(4) It is alleged substantially that the petitioner desired to operate on its lines of railroad in said city, in the year 1888, eighty-seven cars (giving their numbers); that the mayor executed to the petitioner a proper permit for a license for such cars; that it presented such permit to the respondent, the treasurer of the city, and tendered to said treasurer the sum of $10 per car, in all $870, in accordance with seo. 7 of the ordinance of December 28, 1874, and requested the city treasurer to deliver him his receipt for the payment to the cit}' of the annual license fee for each of said cars, and that the treasurer refused to deliver such receipt on the sole ground that the city, by its ordinance approved February 1G, 1888 (sec. 400), provided that a license fee for licenses for each car operated by any street railway in said city should be $15 per car, and the city treasurer still refuses to give the receipt demanded.</p> <p>There is a further allegation that the relator is now and always has been ready and willing to pay the license fee prescribed by said sec. 7 of the ordinance of December 28, 1874. The prayer of the petition is that the treasurer be commanded to receive the said $870 tendered by the company, and to execute and deliver to the relator a receipt in due form, to be delivered to said city clerk by the petitioner, so that it may receive licenses for its cars as aforesaid.</p> <p>contended, inter alia, thatthe ordinance of 1874 created a contract relation between the city and the railway company which is binding upon and inviolable by either party without the assent of the other. It is not a contract for a corporate franchise, for the relator was a corporation with all the powers it now has before this ordinance was passed. It is a contract granting the right of way to incumber the public streets of the city with its railway, a property right. AtGy Gen. v. Railroad Oos. 35 Wis. 425; Mayor v. S. A. R. Go. 32 FT. T. 2G1; 33 id. 42; Des Moines v. O., R. 1. & P. R. Go. 41 Iowa, 569. The ordinance does not on its face reserve any right to change the rate of license fee, and it must be strictly construed. Where an ordinance of a city grants the right to operate' a road without reserving any license, a subsequent ordinance imposing a license is void. Mayor v. S. A. R. Go. 32 FT. Y. 261. And an ordinance increasing the rate of license imposed by the ordinance granting the franchise is void. Mayor v. T. A. R. Co. 3d N. T. 42. See, also, Mayor v. T. <& L. R. Go. 49 N. Y. 657; State v. Ilerod, 29 Iowa, 123-6; Des Moines v. G.,R. 1. dé P. R. Go. 41 id. 569; State v. Ho- ' bolten, 30 N. J. Law, 225; Holt v. Commissioners, 31 How. Pr. 334; Hew Orleans v. G. S. T. c& T. Go. 26 Cerit. L. J. (La.), 233. This increase of the license fee is not in any sense an ordinance of government or an exercise of the police power. It is as purely a financial exaction for the purpose of increasing the revenue of the city, and for that purpose only, as is the ordinary ad valorem tax which the city imposes and the company pays. It is as such without warrant of law. St. Paul v. Traeger, 25 Minn. 248; Mayor v. S. A. R. Go. 32 N. Y. 261; Tiedeman on Limitations of Police Power, 279 et seq. The power and right of the city to grant this franchise to the relator was a special grant of the legislature; the general ordinance power of the common council contained in the charter does not apply to the relator, so as to in any way restrict the right and privileges granted by the act of 1860. Brooldyn O. R. Go. v. Brooklyn O. R. Co. 32 Barb. 358; Brooldyn O. R. Go. v. Furey, 4 Abb. Pr. (N. S.), 364; Brooldyn G. R. Go. v. Brooldyn, 37 Hun, 413 418. The rule that the contract, being a grant by a sovereign power, should be construed strictly in favor of that power, and all ambiguities therein resolved in its favor, applies only when the grant is gratuitous. Langdon v. Mayor, 93 N. Y. 129; Mayor v. B. dé S. A. R. Go. 97 id. 275. .This grant, imposing as it does obligations on the relator as to the maintenance of its road and amount of the fare, and the payment of a fixed sum on each car before used upon its tracks, cannot be said to be without a consideration. Hussey v. Field, 1 Gale, 165; Letton v. Godden, 14 Law T. E.-298; Mayor v. Starin, 106 N. Y. 1.</p>

<p> False imprisonment: Misnomer in warrant of arrest: Amendment: Criminal law and practice: Justices’ courts. </p> <p>1. The misnomer of a person in the process on which he is arrested, if cured by amendment under secs. 4703, 4705, 4706, 4742, E. S., does not subject the .actors to an action of false imprisonment. Scheer v. Keown, 29 Wis. 586, distinguished.</p> <p>[2. Whether the question of misnomer can be raised in justice’s court by objection to the jurisdiction of the court over the person., not determined.]</p>

<p> (1) Obstruction of sidewalk: Injury to pedestrian: Seasonable necessity: Court and jury. (%) Evidence of custom. (3) Instructions to jury: Contributory negligence: Apparent dangers. </p> <p>1. Defendant in order to unload several barrels of sugar, weighing 300 pounds each, into his store, placed a skid across the sidewalk in front of the store, and plaintiff, in attempting'to pass over it, fell and was injured. There was an alley leading to the rear of the store, but the unloading could not have been there accomplished without great inconvenience, and defendant followed the customary method of handling such goods. Held, that the necessity required to justify such use of the sidewalk need only be reasonable, and not absolute, and that the question of reasonable necessity was for the jury,</p> <p>Ü. Evidence as to the usual and customary method of handling goods in that vicinity was properly admitted.</p> <p>3. The court charged that if the obstruction was a dangerous one for the plaintiff to attempt to pass over, and there was room for him to pass around it, he should have passed around it, “and if he voluntarily, and not of necessity, attempted to mount a known dangerous obstruction, when he could have safely passed around it or could have avoided the danger by waiting a reasonable time,” then he was wanting in ordinary care, and could not recover. Held, that the instruction was not open to the objection that it was not confined to apparent dangers, the phrase “ known dangerous obstruction” meaning known to the plaintiff.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>Action to obtain relief from the forfeiture of a mining lease and to regain possession of the property. The facts stated in the complaint as the ground of the relief asked, and the substance of the answer so far as it is material on this appeal, will sufficiently appear from the opinion.</p> <p>The plaintiff demurred to the first part of the answer (specifying the folios thereof which contained the part demurred to) on the ground that it did not state facts sufficient to constitute a defense. It also demurred on the same ground to each of three additional or further defenses contained in the answer. The four parts of the answer thus separately demurred to comprised the whole thereof. It was, however, stipulated by the parties that the demurrers should “ be considered and decided as not covering or applying to the general denial in the answer, hut referring to all other parts of it except the last defense.”</p> <p>Upon the hearing of the demurrer the defendants objected to the sufficiency of the complaint. The court ordered that the demurrer be “ overruled so far. as the plaintiff's complaint is concerned, that being held sufficient, and sustained as to that part of the defendants’ answer following the general denial in the' first sentence thereof and preceding the last separate defense therein pleaded.” The defendants appealed from such order.</p> <p>They argued, among other things: 1. The complaint is insufficient, because the circuit court had not jurisdiction of the subject of the action. The action seeks to reinstate a forfeited lease and to recover possession of demised premises situate in Michigan. It is, so to speak, an equitable ejectment affecting directly the title and possession of the premises in question. Story on Conflict of Laws, secs. 543-545; 3 Pom-eroy’s Eq. Jur. sec. 1318; Ford v, Ford, 70 Wis. 68; Van Steenwyclc v. Washburn, 59 id. 511; Piclcett v. Eerguson, 8 S. W. Rep. (Tenn.), 386-8. 2. The complaint does: not state facts sufficient to constitute a cause of action. Equity will not relieve against a forfeiture incurred by the nonpayment of money at the day when, as here, the time of payment is made essential by the express terms of the lease ■and by the nature of the contract and its subject matter. Gowan v. Christie, L. R. 2 Scotch App. 273; Appeal of Duff, •14 Atl. Rep. 364; Tyley v. Moyers, 43 Pa. St. 404; Jenni-sons v. Leonard, 21 Wall. 302; Pomeroy oh Contacts, secs. •383-4, 389, 390, 401-2; Twi/n-Liclc Oil Co. v. Marbury, 91 U. S. 592; Macbryde v. Weelces, 22 Beav. 533; Christids Appeal, 85 Pa. St. 463; 1 Pomeroy’s Eq. Jur. sec. 455; 2 Story’s Eq. Jur. (13th ed.), sec. 1321, note (c), subd. 5; Klein v. Ins. Co. 104 U. S. 88; Thompson v. Ins. Co. id. 252, 258, 260; Ewald v. EF. W. Mui. L.; Ins. Go. 60 Wis. 431; Benedict v. Lynch, 1 Johns. Oh. 370-375. The nonpayment of the royalty was wilful and persistent; and against a wilful breach of covenant equity will not relieve. Elliott v. Turner, 13 .Sim. Oh. 477; 1 Pomeroy’s Eq. Jur. secs. 452, 455; 2 Story’s Eq. Jur. secs. 1321, 1323; Eaton v. Lyon, 3 Yes. Jr. 692; Hill v. Barclay, 18 id. 62, 63; Reynolds v. Pitt, 19 id. 134; S. C. 2 Price, 212, note; Uolfe v. Harris, id. 206"; Gregory v. Wilson, 9 liare, 689; Conherv. Welch, 51 Wis. 440. Equity will not relieve against a forfeiture incurred by breach of a covenant other than that in respect to the payment of rent, because no exact and certain compensation for the breach can be made. Elliott v. Turner, 13 Sim. Oh. 477; Bowser v. Colby, 1 Hare, Oh. 109; 2 Story’s Eq. Jur. sec. 1321; Taylor on Landl. & T. sec. 496; 2 L. 0. in Eq. (White & Tudor), part II, 2027-2037. Equity will not ordinarily relieve against such breaches, except in case of fraud, accident, or mistake; and the facts disclosed by the complaint do not constitute such a case. Financial embarrassment or insolvency, instead of entitling the plaintiff to relief, is another reason why the lease should not be reinstated. Dunk-lee v. Adams, 20 Yt. 415; Neale v. Mackenzie, 1 Keen, 474; JBuoleland v. Hall, 8 Yes. Jr. 92; Price v. Assheton, 1 Younge & 0. 441. 3. Those portions of the answer the demurrer to which was sustained contain proper matter of defense.</p> <p>They contended, inter alia, that the circuit court had jurisdiction of the action, the parties residing in this state and the contract having been made here, although the land in question is situated in Michigan. • The relief asked arises out of matters of contract, and trust relations exist between the parties. 1 Yernon, 75. 135; Toller v. Ga.rteret, 2 id. 494; Muller v. Hows, 94 U. S. 444; Gardner v. Ogden, 22 H. Y. 327; Ward v. Arredondo, Hopkins Ch. 213; Newton v. Bronson, 13 H. Y. 5S7; Watts v. Waddle, 0 Pet. 389; Wilson v. Sherman, 1 Match. 537; Tardy v. Morgan, 3 McLean, 358; Lyman v. Hyman, 2 Paine, 46; Wood v. Warner, 15 1ST. J. Eq. 81; Bailey v. Rider, 10 H. Y. 363; Hawley v. James, 7Paige, 213; Massiev. Watts, 6 Cranch, 148; Halev. Roosevelt, 5 Johns. Ch. 174; Williams v. Fitzhugh, 37 N. Y. 444; Penn v. Lord Baltimore, 2 L. C. in Eq. 923, and notes; Phelps v. McDonald, 99 U. S. 298; Dehon v. Foster, 4 Alien, 550; 3 Pomeroy’s Eq. Jur. sec. 1318. The decree, though, affecting lands outside of the jurisdiction, would confer an equitable title sufficient to defeat an action of ejectment by the party against whom it was rendered, or to sustain an equitable action against him in the locus rei sitce. Burn-ley v. Stevenson, 24 Ohio St. 474; People ex rel. Allen v. Allen, 105 U. Y. 628; Gcddwell v. Oarrington's Heirs, 9 Peters, 86; Herman on Estoppel, 617; Yost v. Devault, 9 Iowa, 60; Sutphen v. Fowler, 9 Paige, 280; Penm v. Haywood, 14 Ohio St. 302; Embry v. Palmer, 107 U. S. 3; Cleveland v. Burrill, 25 Barb. 532; Newton v. Bronson, 13 N. Y. 587; Broum v. Desmond, 100 Mass. 267; Davis v. Parlcer, 14 Allen, 94; Dingree v. Coffin, 12 G-ray, 304; Massie v. Watts, 6 Cranch, 148; Dupassmr-v. Bochereau, 21 Wall. 180; Tollman v. McCarty, 11 Wis. 400. A covenant for which no right of entry is reserved in the lease cannot be taken advantage of in the forfeiture, but the remedy is by action on the covenant. Taylor’s Landl. & T. (8tb ed.), sec. 291, and cases cited in note 2; Wood’s Landl. & T. sec. 506; Va'o.atta v. Brewer, 32 N. J. Eq. 268; Brotan’s Admir v. Bragg, 22 Ind. 122; Miller v. Havens, 51 Mich. 485.</p>

<p>APPEAL from the Superior Court of Milioaulcee County.</p> <p>The complaint alleges that the defendants are partners, and at the times mentioned in the complaint were, engaged as such in keeping, managing, and using a device designed and used for gambling purposes, commonly known as a faro bank, upon which they permitted persons to gamble, bet, and play for gain with cards; that on a day therein named the plaintiff intrusted to one James H. Stevens $500 in money, of which she was the owner, for the purpose of depositing the same for her exclusive use and benefit in a bank in the city of Milwaukee; that the said James H., instead of so depositing such money, thereafter bet and wagered the same for gain with defendants at said gambling device, and lost the same at said game, in consequence of which loss the said James H. paid over the said money to the defendants as winners thereof at said game; and that the defendants eon-verted said money to their own use, and have refused on due demand to deliver the same to the plaintiff.</p> <p>The defendants demurred to the complaint, alleging as grounds thereof that it does not state facts sufficient to constitute a cause of action. The plaintiff moved the court to strike out the demurrer as frivolous, and for judgment. The court denied the motion, and this appeal is by the plaintiff from the order in that behalf.</p>

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion.

The case is sufficiently stated in the opinion. Plaiatiif appeals from a judgment in favor of the defendant. argued, among other things, that whatever may be said of the license to cut ice, the lease of the premises for a term of years with the option to purchase the land at a stated price constituted an interest in real estate, and the assignment of the same to defendant as security was in the nature of a mortgage of realt}. 2 Story’s Eq.

■ The following statement of the case was prepared by Mr. Justice Cassoday: This action was brought to recover a balance due upon contracts of $131.73, and the costs of the action. The sum-' mons was not personally served. December 8, 1887, the defendant answered, and therein admitted the amount due as claimed; and thereby expressly authorized and confessed judgment in favor of the plaintiff for the amount so claimed.

<p>Raileoads: Condemnation op Land: Appeal, (l) Measure of damages: Instructions to jury. (2, 8) Evidence: Estoppel: Reversal of judgment. (Bill of exceptions: Clerical error.</p> <p>1. The question being as to the amount of compensation to be paid to the owner of a strip of land taken for railroad purposes, the jury were charged that they were to find what was the market value of the strip taken, at the time it was taken, as a part and parcel of the lot of which it was a part, and also what was the damage to the market value of the residue of the lot in consequence of such strip being taken; that the market value was ‘ ‘ such a sum of money as the property was worth in the market to persons generally who would pay its just and full value” at the time when taken; that the law did not provide for compensating the owner of the lot for losses in his business; and that whether it was inconvenient for him to part with that particular piece of property, or whether it was necessary for the railroad company to have it for depot purposes, were not proper matters to be considered in arriving at the value and injury suffered. Held, that the charge, taken as a whole, stated the rule of damages with sufficient accuracy, and that nothing therein'wms in conflict with the rule that, the owner was entitled to the value of his property for any use to which it might be applied, and for which it would sell in the market.</p> <p>2. A deed of other lands in the same neighborhood is not competent evidence of the value of the land in question, there being no proof of. the actual consideration paid.</p> <p>3. The fact that one party has introduced incompetent evidence upon a certain question does not estop him to object to the admission of similar evidence offered by the other party, or render the admission of such evidence, against his objection, any the less erroneous.</p> <p>4. A statement in the bill of exceptions that the defendant excepted to the ruling of the trial court admitting, against the plaintiff’s objection, evidence offered by the defendant, is presumed to be a clerical error.</p> <p>See note to this case in 39 N. W. Rep. 129.—Rep.</p>

The action was brought by J. T. Kenyon against J. N. Kenyon, F. F. Kenyon, and 0. A. Salisbury, to recover one half of the value of the support of one Eunice Kenyon, a sister of the plaintiff and of the defendant J. K. Kenyon. The plaintiff had a judgment for $160.92, from which the defendants have appealed. The principal facts are stated in the opinion. The evidence therein referred to, offered b_y defendants and excluded, was as follows: 1.

This is an action in equity, brought in June, 1886, by. the plaintiffs as trustees of “The Norwegian Lutheran Congregation in the Counties of Dane and Jefferson,” in this state, against the… Held: however, at such time or times in each of said churches as should not in any way conflict with religious services to be held in either of said churches by said Pastor Otteson.

The case is stated in the opinion. The plaintiff appealed from a judgment in favor of the defendants. To the point that, having obtained credit on the faith of owning real estate to all appearances not exempt by law, the defendant Mrs. Delaney cannot now claim the exemption, counsel for the appellant cited Davis v. Kelley, 14 Iowa, 525; Balier v. Jamison, 73 Iowa, 698.

The following statement of the case was prepared by Mr. Justice Cassopay: It appears in the record that the plaintiff, or her husband, Joseph Borkenhagen, had a grocery store and saloon in connection therewith in Milwaukee; that the sign was “ J. Borkenhagen;” that the license for the saloon was in the name of the husband; that some time prior to May, 1SSG, William Jungbluth sold to the husband a small bill of coffee, and delivered the same at said grocery store; that, on…

Action to enforce a lien for building materials furnished by the plaintiff and used in and about the construction of a building upon land owned by the defendant. The facts will sufficiently appear from the opinion. The defendant appealed from a judgment in favor of the plaintiff.

This action was brought under the statute (ch. 143, K. S.) to enforce a lien upon a building and the lot upon which it was erected for the price of certain lumber furnished by the plaintiff company and used in the erection of such building. The right of action is founded upon the proposition that the defendants the 8ehudas were the purchasers of the lumber. No attempt is here made to enforce the lien of a subcontractor.

<p> Contracts: Condition precedent to payment: Performance rendered impossible,: Improper performance of worlc: Counterclaim: Measure of damages: Immaterial error. </p> <p>1. Plaintiffs did certain plumbing and gas-fitting for the defendants ■ according to contract, but before they could procure the inspection and certificates required by the contract to entitle them to payment, the defendants, without notifying the plaintiffs, raised the building, thereby displacing the pipes, destroying in part the work done, and rendering it impossible for the plaintiffs to procure such inspection and certificates. Held,</p> <p>(1) The defendants cannot refuse payment because of the plaintiffs’ failure to obtain the certificates.</p> <p>(2). The plaintiffs, having afterwards -undertaken to replace and repair the pipes, are liable for damages resulting from failure properly to perform such. work.</p> <p>2. In an action to recover the .contract price of work, where the defendants counterclaimed damages on account of improper performance, an instruction that their recovery could not exceed the contract price is held, while probably erroneous, not to have been prejudicial to the defendants, the jury having awarded them a less sum.</p>

The facts are stated in the opinion. Lie contended that plaintiff can claim the protection of judicial privilege. 'Steele v. Dunham, 26 Wis. 393-898; Broom’s Leg. Max. 90, 91; Shearman & Eedf. on Neg. sec. 163; Drueeher v. Salomon, 21 Wis. 621-630.

The following statement of the case was prepared by Mr. Justice Cassoday: This action was commenced in justice’s court, February 11, 1887. On the venue being changed, a complaint was filed, claiming damages for the amount of a promissory note of $100 and interest, and $64 for the use of a horse. The answer was a general denial. The cause was adjourned from time to time until April 22,1887, when the defendant failed to appear, and the plaintiff obtained judgment.

The action was brought by Helen Hawley and Tomlinson Kent Hawley, infants, by Horace A. J. Upham, their guardian ad litem, to set aside Kales and a contract for the sale of real estate made by the defendant Tesch as executor and trustee of the will of their grandfather, Cyrus Hawley.

.APPEAL from the Circuit Court for Milwaukee County. This action was brought to recover damages for personal injuries alleged to have been suffered by the plaintiff, by means of the negligence of the defendant company, when a passenger on one of its cars. The defendant owns and operates a street railway in the city of Milwaukee, the cars upon which are drawn by horses.

The case is sufficiently stated in the opinion. To the point that at common law the right of a stockholder to examine the books of a corporation depended upon his ability to show to the court to which application was made that a special occasion had arisen which rendered it proper that he should have an opportunity to make such an examination in order to enable him to perforin duty which devolved upon him as a stockholder, they cited Taylor on Ev. sec. 1316; Bex v. Merchant…

Action to recover compensation for driving logs on Wolf river and its tributaries, under sec. 3337, E. S., and the acts amendatory thereof.

The following statement of the case was prepared by Mr. Justice Cassodat: It appears that some time prior to August 27,1887, William E. Porter entered into a contract with the defendant Ansel Jones, wherein he agreed to furnish the materials and erect and construct a certain dwelling-house or building for said Jones upon his lot, described, for a certain-specific pricey that in the erection and construction of said building Porter purchased materials of the plaintiff,…

Action to recover damages for the burning of property through the negligence of defendant’s employees. The material facts are stated in the opinion.

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>By an instrument in writing bearing date November 29, 1871, the defendant William Smith sold and conveyed to the plaintiff the pine timber or stumpage on ten certain parcels of land therein described, situated in Shawano county, for a consideration therein expressed of $800. Between that date and October 29, 1880, the plaintiff cut and removed from such lands from 500,000 to 700,000 feet of lumber.</p> <p>On the day last named the defendant Frederick II. Smith commenced an action of trespass against the plaintiff to recover damages for cutting and removing the timber from five of said parcels of land. The legal title to the parcels last named was in the said Frederick H. This action was commenced and'prosecuted, and is controlled, by the defendant William Smith, but in the name of Frederick U., who is his brother. It was first noticed for trial in May, 1884.</p> <p>This action was commenced in October, 1884. It is an action in equity, brought to procure an adjudication declaring the conveyance of November 29, 1877, executed by William Smith, to be the conveyance, of Frederick ,H. Smith as well, and to restrain the further prosecution of the action of the latter against the plaintiff. The grounds of this action are stated in the complaint substantially as follows: (1) That the lands, the legal title to which was in the defendant Frederick H., equitably belonged to the defendant William, and are held by Frederick H. in secret trust for him; (2) that at the time of such conveyance William was the attorney in fact of Frederick H., and acted as such in making the same, and that the proceeds of the sale of the timber on the lands claimed by Frederick II. were applied by Williamto the use of Frederick H.; (3) that the defendants conspired together to cheat and defraud the plaintiff, and such trespass suit was brought in furtherance of such conspiracy.</p> <p>The defendants answered separately to the merits of she action, in substance denying the truth of the alleged cause of action.</p> <p>When the cause came on for trial, the defendants objected to the introduction of any testimony under the complaint, for the alleged reason that it does not state facts sufficient to constitute a cause of action. The objection was overruled, and the trial proceeded and resulted in findings of fact which amount substantially to a finding that all the material allegations of the complaint are true. The conclusions of law are, in substance, that the plaintiff is entitled to the relief demanded in the complaint. Judgment was ordered and entered accordingly. The defendants appeal from the judgment.</p>

<p> (1, 5J Evidence: Genuineness of signature: Opinions: Transactions until person since deceased. (S, 8) Filing of papers in court: Presumptions. (4.) Reversal of judgment: Improper admission of evidence. (6) Election by widow not to take under will: Estoppel. (7,8) Setting aside order of county court assigning estate of testator: Fraud of executor: Laches. (9) Acceptance of legacy: Estoppel to claim under ividoiv who has renounced provision of will. (10) Costs imposed on one defendant only: Discretion. </p> <p>1. The evidence in this case is held to sustain the finding of the trial court in favor of the genuineness of the signature to a notice of election by a widow not to take under her husband’s will.</p> <p>2. A notice of election by a widow not to take under her husband’s will having been found in the office of the county court duly filed therein as one of the papers belonging to the records of the court, the presumption is that it was properly filed.</p> <p>3. Where such notice was delivered for filing by a reputable attorney, it will be presumed that he was authorized to file the same on behalf of the widow.</p> <p>4. The admission of improper evidence will not necessarily work a reversal of the judgment, if the findings on which such judgment is based are sustained by the evidence properly admitted.</p> <p>5. A legatee named in the will of a widow may testify as to her opinion of the genuineness of the signature of such widow to an election not to take under her husband’s will, through which election the widow acquired the estate bequeathed to the witness.</p> <p>6. A will directed the segregation and investment of one third of the testator’s estate, and gave the income thereof to his widow during her life. Before such segregation had been made, the widow, at her request, received from the executor a small amount of money for her present support. Held, that she was not thereby estopped to elect, within a year after the testator’s death, to take the p'ro-vision made for her by law instead of that made in the will.</p> <p>7. An executor obtained an order assigning the residue of the estate in his hands to himself and his brother, who were the residuary legatees. He knew, at the time, that the testator’s widow had elected not to take under .the will; that she thereby became entitled to one third of the personal property in his hands as executor ; and that she had died leaving a will, which had been probated, giving all her estate to the plaintiff herein. He knew, also, where the plaintiff resided, and that she made claim to that part of the . estate of his testator which had belonged to the widow, but had not intimated to her that he intended to contest such claim or the right of the widow under said election; and upon applying for the order distributing the estate he made no proof of his or his brother’s right to the whole estate, and did not inform the court of the plaintiff’s claim or give her any actual notice of the proceeding. Held, that the order should be set aside, as having been fraudulently obtained.</p> <p>8. When the plaintiff heard of yucli order she at once took legal advice, and pressed upon her cjounsel the commencement of proceedings to set it aside. This action was commenced about threo years after. The unnecessary delay, if any, was the fault of her attorney. Nothing had been done with the estate, in the mean time, which in any way altered the relations of the parties or prejudiced the rights of the defendants., Held, that the plaintiff did not forfeit her rights by such delay.</p> <p>9. A legatee had received her legacy before the testator’s widow elected not to take under the will. After making such election, but before receiving her share of the estate, the widow died, bequeathing all her property to ■ such legatee. Held, that the latter was not estopped, by her acceptance of the legacy first mentioned, from claiming that part of the testator’s estate to which the widow became entitled by virtue of said election.</p> <p>10.An executor having fraudulently obtained an order assigning his testator's estate to himself and his brother, there was no abuse of discretion in charging him alone with the costs of an action to set aside such order, although his brother joined in the defense.</p>

<p>APPEAL from the Circuit Court for Winnebago Count,y.</p> <p>The action was brought by John Winstanley, as administrator of the estate of Robert ‘Winstanley, deceased, to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant’s employees. The plaintiff hald a verdict for $1,500, and from the judgment thereon the defendant appealed. The facts are stated in the opinion.</p> <p>They contended, inter alia, that the'undisputed evidence showed that the deceased was guilty of negligence. Even if the witness Martin did not warn him as he says he did, that the train was coming near at hand, the deceased was still bound to do what was needful to ascertain whether it was safe for him to cross the track before driving his team dangerously near to it. Beefelcl v. Cl, M. dé St. P. P. Oo. 70 Wis. 216; Salter v. U. & B. P. P. Oo. 75 1ST. T. 273; Gorton v. E. R. Go. 45 id. 660; Mantel v. C.\ M. ds St. P. R. Oo. 33 Minn. 62; Union P. P. Oo. v. Aclam-s, 19 Am. & Eng. E. Cas. 376; Haas v. G. P. da I. P. Oo. 47 Mich. 401; Griffin v. O., P. I. dé P. P. Oo. 68 Iowa, 638.</p> <p>They argued, among other things, that the deceased, being lawfully on the premises, had a right to rely upon the performance by those on the locomotive not only of every act imposed by law upon them when approaching a crossing, but also that they would at least use ordinary care in the management of the train. See cases cited in appellant’s brief in Seefeld v. O., M. dé St. P.P. Oo. 70 Wis. 219; Strong v. Placerville P. Go. 8 Am. & Eng. E. Cas. 273; Ditberner v. O., M. dé St. P. P. Oo. 47 Wis. 138. It cannot be held, as a matter of law, that it was the duty of the deceased to have gone forward to see if a train was approaching, but this, in connection with the surrounding circumstances, at most, was a question of fact for the jury. Puffy v. 0. dé W. W. J2. Oo. 32 Wis. 269; Urban eh v. O., M. dé St. P. R. Oo. 47 id. ^9; Eilert v. G. B. dé M. P. Go. 48 id. 606; Dolan v. D. dé II. Canal Go. 71 E. T. 285; Strong v. Placerville P. Oo. 8 Am. & Eng. E. Gas. 273; Guggenheim v. L. S. dé M. S. R. Go. 57 Mich. 488; Roberts v. O. dé W. W. R. Oo. 35 Wis. 679; Petty v. H. dé St. I R. Oo. 28 Am. & Eng. E. Ca.s. 618. The fact that a person attempting to cross a railroad does not at the instant of, or immediately before, stepping on the track look or ascertain if a train is coming, is not conclusive evidence of a want of care on his part. His omission to dojso should be submitted to the jury. Plummer v. Eastern R. (Jo. 73 Me. 591, 6 Am. & Eng. R. Cas. 165; Incl. dé V. R. Go. v. MoLin, 8 Am. & Eng. R. Cas. 237; Ghaffee v. R. dé L. [s. Gorp. 104 Mass. 108,; Sherry v. H. Y. O. dé II. R. R. Go. 101 N. T. 652; Greany v. L. I. R. Go. 101 id. 419; Hosier v. G., B. dé Q. R. Go. 73 Iowa, 268. In the following cases, similar to the one at bar, it was held not to be error to submit the question of contributory negligence to the jury. Pitts-burg, G. dé St. L. R. Go. v. Martin, 8 Am. & Eng. R. Cas. 253; Hutchinson v. St. P., If. dé M. R. Go. 19 id. 280; Klanowslti v. G. T. R. Go. 21 id. 648; BoucJcs v. G., M. dé St. P. R. Go. 31 Minn. 526; Tyler v. H. Y. de N. E. R. Go. 137 Mass. 238; Kellogg v. H. Y. O', dé H. R. R. Go. ¡79 N. T. 72; Petty v. H. <& St. J. R. Go. 28 Am. & Eng. R. Cas. 618. See, also, Ferguson v. W. G. R. Go. 63 Wis. 145; Bonnell v. D., L. & W. R. ^Oq. 39 N. ¿T. Law, 189; Sonier v. B. dé A. R. Go. 141 Mass. 10. In the absence of evidence to the contrary the presumption is that a person looked and listened. Sehum v. Penn. R. Go. 107 Pa. St. 8.</p>

<p>APPEAL from the Circuit Court for Fond du Lax County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>It appears from the record that December 24, 1884, the defendant, John Haberkorn, made a general assignment for the benefit of his creditors to the garnishee, John Reinig; that the principal action was commenced against Haberkorn, December 26, 1884, to recover $531 and interest due upon contract; that at the same time garnishee proceedings therein were commenced against said John Reinig, upon an affidavit to the effect that Reinig was indebted to or had property in his possession or under his control belonging to said Haberkorn, and not exempt from execution, and that said Haberkorn had no other property liable to execution sufficient to satisfy the plaintiff’s demand; that January 16, 1885, judgment was recovered in said principal action against said Haberkorn for $558.23; that January 8,1885, the said Reinig answered under oath, denying any and all liability as such garnishee; that Jan-* uary 10, 1885, the plaintiffs elected to take issue on the said answer of the garnishee; that, upon the trial of the garnishee issues thus formed, the jury found for the plaintiffs, and assessed their damages at $558.23, with interest from January 16, 1885; that at the same term of the court, and January 4, 1886, the court set aside said verdict, and granted a new trial upon terms; that that order was affirmed by this court (68 "Wis. 408) ; that March 6, 1888, the said Reinig, as such garnishee, was allowed by the trial court to file and serve an amended or supplemental answer in said cause, nuno pro tune, as of November 22, 1887, in which the said garnishee set up said general assignment and his legal right to the property so assigned thereunder; that prior to July 16, 1887, the said Reinig liad made and filed his account as such assignee; that upon the day and year last aforesaid, and upon due application and notice, the said court approved said account and discharged said garnishee and his sureties; and that notice thereof was duly served on the plaintiffs’ attorney; and that said judgment of' approval remained unreversed and unappealed from.</p> <p>The court thereupon ordered all of the issues therein to be tried by a jury, and the same were so tried at the March term thereof for 1888; and at the close of said trial the jury returned a special verdict to the effect (1) that, at the time of making said assignment, the said Haberkorn delivered the possession of all the property he then owned to said Reinig; (2) that there was then due to O. W., W. 0.. and Louis Haberkorn the sums specified in the assignment for wages as laborers or employees, earned within six months prior to said assignment; (3) that said Haberkorn did not intentionally prefer any of his laborers or employees for a greater sum than was actually due for wages earned within six'months prior to the assignment; (5) that said Haberkorn made said assignment for the purpose and with the intention that the proceeds of the assigned property should be distributed among his creditors according to its terms; (6) that said Haberkorn did not make such assignment with the intent to cheat or defraud his .creditors; (7) that said Reinig did not permit said Haberkorn to take away or conceal any of the property which was transferred to him by the assignment; (8) that there was no property or assets of said Haberkorn, except exemptions known to the said Reinig, which the latter did not take possession of and sell as assignee; (9) that said Reinig did not permit said Haberkorn, nor any of Reinig’s employees, to sell any goods or collect any accounts and appropriate the proceeds thereof to their own use; (11) that said Reinig accepted the duties of assignee and the transfer of the property under the assignment for the purpose and with the intention of distributing the proceeds thereof among the creditors of said Haberkorn according to the terms of the assignment; (12) that said Reinig did not become assignee of said Haber-korn and receive the property under the assignment with the intent to cheat or defraud the creditors of Haberkorn; (13) that the value of the assigned property of the said Haberkorn in the hands of the said Reinig, at the time of the commencement of this action, was $2,103.</p> <p>Thereupon the said Reinig moved'for judgment upon said special verdict and the record; and the said plaintiffs moved for a new trial; and upon the hearing of said motions, April 24, 1888, and the court having further found that the answers of the jury to the special verdict were fully sustained by the evidence, it was by the court, in effect, ordered that the motion of the plaintiffs for a new trial be, and the same was thereby, denied; and it was, in effect, further ordered that judgment be entered therein for the said garnishee, Reinig, dismissing the action of the plaintiffs against him, and for his costs. Erom the judgment entered thereon accordingly, the plaintiffs appeal.</p>

<p>VOLUNTARY ASSIGNMENT: Appeal to S. O. ( 1, 2) Final settlement of assignee’s accounts: Bill of exceptions: Review of intermediate order. (8, j) Objections to assignee’s accounts: By whom and when to be made.</p> <p>1. A final order settling the accounts of an assignee for the benefit of creditors and discharging him and his sureties, which shows on its face that it was made after hearing evidence, cannot be reversed upon the merits unless a bill of exceptions has been settled.</p> <p>3. Upon an appeal from a final order settling the accounts and discharging an assignee for the benefit of creditors, an intermediate order discharging an order that the assignee show cause why he should not pay a certain sum to a creditor and that he appear and submit to an examination and produce his books and accounts in court, is reviewable, under sec. 3070, R. S., and error therein will work a reversal of the final order appealed from.</p> <p>3. A creditor who was preferred in a voluntary assignment, but who afterwards made an assignment himself under the insolvent laws, has no authority to make objections to the accounts of the assignee under the voluntary assignment.</p> <p>4. Objections to the accounts of an assignee for the benefit of creditors must be taken at the time fixed for the final settlement of such accounts.</p>

<p> Sale of chattels: Evidence of purchase price:- Value. </p> <p>Where there is a direct conflict of testimony as to the price orally agreed to be paid for property, as to the time of the sale, afid as to where the property was when sold, evidence of its real value at the time and place the vendor claims to have sold it, and at the time and place the vendee claims to have bought it, is admissible. Valley Lumber Co. v. Smith, 71 Wis. 804, followed.</p>

<p>APPEAL from the Circuit Court for Fond du lao County.</p> <p>The action was originally brought in September, 1884, by the plaintiff’s intestate, Olive P. Posten, to enforce specific performance of an alleged contract by the defendant William A. Miller to convey to her forty acres of land in the countjr of Green Lake.</p> <p>It appears that Alexander B. Posten, the husband of Olive, who died in 1882, and who was the owner of the land in question and also of a farm in Pond du Lac county, executed two mortgages in 1871 and 1872, respectively, upon all of the land above mentioned, to L. E. Reed, of Eipon, to secure loans amounting to over $5,000. His wife, Olive P., joined in executing said mortgages. These mortgages were subsequently (and before 1878) assigned to the defendant Miller. In 1878 Posten and his wife conveyed the Green Lake forty acres by quitclaim deed to Miller, who after-wards conveyed the same to one Theodore Miller. Theodore conveyed the land to the defendant Pearson.</p> <p>It is alleged in the complaint that Posten and his wife did not know that the Green Lake forty acres was included in these mortgages until 1878, and that during that year Miller agreed that if they would convey the forty acres to him he 'would reconvey the same to Olive P., which was the only consideration of their quitclaim deed to Miller. The complaint prayed that the defendant Miller be required by the judgment of the court to make such conveyance to Olive P., or, if it should appear that Pearson is a Iona fide purchaser of the land, that Miller be required to pay her the value thereof.</p> <p>The answer of Miller denies that Posten and his wife were thus ignorant of the fact that the mortgages included the forty acres, and denies the alleged agreement to convey the lands to Mrs. Posten. The defendant Pearson claims in his answer to be a bona fide purchaser of the land for value, without notice of the claim of Mrs. Posten.</p> <p>The trial of the cause in the circuit court resulted in findings “that the description of said land in said mortgages was not fraudulently inserted therein, but it was intended and understood by Alexander B. Posten, and Olive P. Posten, his wife, and this plaintiff, and L. E. Reed, the mortgagee named in said mortgages, at the time of the execution thereof, that they should cover and include said land.” Also “ that the defendant William A. Miller did not, at the time of the execution of said quitclaim deed, or at any other time, promise to reconvey to the plaintiff or the said Alexander B. Posten the real estate conveyed to the defendant William A. Miller by the said quitclaim deed.” ' The court thereupon rendered judgment for the defendants, dismissing the complaint, with costs. After judgment, the plaintiff Olive P. Posten died, and the suit was subsequently continued in the name of the present plaintiff as administrator of her estate. The plaintiff appeals from the judgment.</p>

The following statement of the case was prepared by Mr. Justice Oassoday: This action was commenced in justice’s court.

<p> Unincorporated religious societies: Personal liability of members: Agency: Partnership. </p> <p>A complaint alleging that the defendants, as members of a voluntary unincorporated religious society, through their trustees and priest who governed the members in secular affairs and had power to incur debts for the association which became the joint and several indebtedness of its members, stated an account with the plaintiff’s assignor and agreed to pay him the balance found to be due him for his salary as priest and for money advanced for building the church and paying old debts, does not seek to hold the defendants as a partnership, but states a valid cause of action against them individually upon an indebtedness incurred by them through their authorized agents.</p>

Action against the city of Plymouth and others, its officers and employees, for a trespass qua/re clausum., The facts are sufficiently stated in the opinion. The defendants appealed from a judgment in favor of the plaintiff. For the appellants it was contended, inter alia, that the general authority to abate nuisances, which clearly includes the removal of obstructions from the public streets, is inherent in municipal corporations. 1 Dillon on Mun..

The case is sufficiently stated in the opinion. The plaintiff appeals from an order sustaining a demurrer to the complaint.

The following statement of the case was prepared by Mr. Justice Cassoday: This action was commenced against the firm composed of N. II. and H. U. Virgin, for a firm debt, and an attachment was issued therein, and property of the firm was attached, and also separate property of N. If. Virgin, one of the members of the firm. The defendants severally answered and traversed the attachment. The trial court sustained the attachment.

<p>APPEAL from the Circuit Court for Iowa County.</p> <p>Action upon a policy issued-by the defendant insuring the life of Dr. Charles Bruil, in favor of his wife and children. The wife predeceased the insured. The children are the plaintiffs herein. The defendant appeals from an order denying its application for a change of the place of trial from Iowa county to Dane county. Other facts are stated in the opinion.</p> <p>They contended, inter alia, that if it should be claimed that the cause of action or any part thereof arose where and when the contract was made, Dane county is the place of such origin. The place of contract is the place of acceptance of the proposal and place of performance. Bliss on Life Ins. sec. 362; May on Ins. sec. 66, and cases cited; Ruse v. Mut. Ben. L. Ins. Oo. 23 N. T. 516; Hunt v. Bratt, 23 Iowa, 111; Huntley v. Merrill, 32 Barb. 626; Shattueh v. Mut. Life Ins. Oo. 1 Ins. Law J. 931, and cases cited; Gould on Pleading, sec. 159; 2 Parsons on Cont. 582. But neither the cause of action nor any part thereof then arose. No cause of action or part of cause of action could arise to the beneficiaries under this policy until the defendant was in default. The cause of action arises out of the transactions and the breach, and all these occurred in Dane county. Pomeroy on Bemedies, sec. 453; Rodgers v. Mut. Endowment Assess. Ass’n, 17 S. 0. 406; Veeder v. Falser, 83 N. Y. 156; Ithaca Fire Department v. Beecher, 99 id. 429; Banh of Kentuclsy v. Harrison, 1 Bush, 384; Foster v. Wade, 4 id. 628. The death is not the cause of action or any part of it. It is merely the event which determines the time when the payment is to be made. 3 Addison on Cont. 1232; DaTby v. Life Ass. Go. 15 C. B. 387, 390. An agreement to pay money for ■ any good con'sideration at the death of a party is a valid agreement. It is valid even as a promissory note. Story on Prom. Notes, sec. 27. But it would hardly be contended in any ordinary contract of this character that the death is the cause of action.</p> <p>He argued, among other things, that the legislature evidently regarded a cause of action as being capable of division into parts, and' that it is optional with the plaintiff to bring his action in any county where a part of the cause of action arose. The construction contended for by the appellant would render the words “ or some part thereof ” in the statute meaningless. The rule adopted by the circuit court is the only one that affords a safe and convenient test as to the place of trial under this statute. It was this: Where it is claimed that a certain fact or thing occurred in some county, and by reason of that the plaintiff is entitled to have the action tried in such county, we should consider whether the failure to allege such fact in the complaint would make it demurrable on the ground that sufficient facts were not stated to constitute a cause of action. If the omission to state such fact would make a complaint demurrable on such ground, then such fact is a part of a cause of action.</p> <p>None of the. authorities cited by the appellant are applicable to this case. In Yeeder v. Balcev, 83 N. Y. 156, the facts relied upon to retain the case for trial in the county in which it was brought simply went to the measure of damages. And Ithaca Fire Department v. Beecher, 99 N. Y. 429, is really an authority against the appellant, since the controlling idea in that case seems to be that the cause of action, arose where the subject of the insurance was situated.</p>

<p> Sighways: Injury from defect: Notice to town: Description of place: Degree of care to be exercised by traveler: Instructions to jury. </p> <p>1. A notice of injury from a defective highway, which describes the place of the injury as a bridge, when in fact it was a culvert, is nevertheless sufficient if it otherwise designates the place in such a way that it can he found without difficulty.</p> <p>2. Unless a traveler knows of a defect in the traveled track he has the right to assume that it is reasonably safe. And he is bound to use only such care as the great mass of ordinarily prudent men would exercise under like circumstances.</p> <p>3. It is not error to refuse to give to the jury an instruction which is substantially included in the general charge.</p> <p>4. It appearing that there were two holes in a culvert, one in the north and one in the south traveled track, an instruction that the jury must not consider any testimony relative to the hole in the north track was properly refused, although the evidence showed that the plaintiff’s horse stepped into the hole in the south track, since the presence of the hole in the north track may have caused the horse to cross the culvert in the south track.</p>

<p> False representations made in good faith: Sale of land. </p> <p>Plaintiff called upon defendant with a view of purchasing from him a certain tract of land, and asked him where the lines of such tract were. Defendant pointed to fences which were in view on what appeared to be the north and west lines of the tract, and represented that they were on said lines. Plaintiff purchased the land, relying upon such representation, which afterwards turned out to be false. Held, that the defendant was answerable in damages, even though he honestly believed the representation to be true and had no intent to deceive or defraud the plaintiff in making it. Taylor, J., dissents.</p>

<p> Poor-laivs: Settlement: Husband and wife: Domicile: Intent: Parent ■ and child: Support “as a pauper.” </p> <p>1. The rule of the statute (sec. 1500, E. S.), that “ a married woman shall always follow and have the settlement of her husband, if he have any within the state,” applies where the husband has abandoned his wife or they voluntarily live apart.</p> <p>2. A man who has his only home and business in a town for more than a year gains thereby a settlement in. such town, under.subd. 4, sec. 1500, E. S., although he may have contemplated leaving at some future time.</p> <p>9. A mother supported by her daughter is not supported “ as a pauper,” within the meaning of subd. 4, sec. 1500, E. S.</p>

<p> Equity: Mistake: Description of right of way in deed: Reformation: Specific performance: Laches: Parties. </p> <p>In the conveyance of a right of way across certain specified tracts of land, it is described as starting on the line of the N. E. 4 of the S. E. £ of the section, and running thence by courses and distances to a certain point on the state road. The complaint alleges that such description is erroneous and does not describe any piecise right of way whatever, and that to make the deed pass any right of way and conform to the intention of the parties, the descri ption should be amended by designating the starting point as on the line of the S. E. £ of the S. W. £ of the section, by inserting one course and distance, and by omitting one distance. As described in the deed, the right of way would not cross or touch the lands over which it was granted, nor would it reach the state road any where near the point mentioned, if at all. With the corrections in the courses and distances, it would be apparent from an inspection of the deed that the right of way should commence where it is alleged it was intended to commence. The deed was founded on a valuable consideration, and the plaintiff was also entitled to a right of way as of necessity over the tracts described. The defendant purchased such tracts from the grantor of the right of way after the recording of the deed. Held, on demurrer:</p> <p>(1) The facts stated present a case for the reformation of the deed, and the description is sufficiently certain to authorize the enforcement of specific performance.</p> <p>(2) There having been no interference with the plaintiff’s right of way until after the defendant purchased the land, and the action having been commenced within six years after that time, the plaintiff was not guilty of laches.</p> <p>(3) The defendant’s grantor, the original grantor of the right of way, is not a necessary party.</p>

<p>APPEAL from the Circuit Court for Lincoln County,</p> <p>Action to recover compensation for driving the defendant’s logs on the Wisconsin river. The facts will sufficiently appear from the opinion. The defendant appeals from a judgment in favor of the plaintiff.</p> <p>contended, inter alia, that sec. 3337, R. S., does not apply to corporations acting under sec. 1777, but only to two or niore persons who own logs on any river which are so Intermixed that they cannot be separated for driving. A corporation derives all its powers from the incorporating act, and can exercise its faculties only in the manner therein authorized. Janesville Bridge Go. v. Stoughton, 1 Pin. 672; Luthe v. Farmers' M. F. Ins. Go. 55 Wis. 546; Madison, W. <& M. P. P. Go. v. W. db P. P. P. Go. 7 id. 59. The provisions of sec. 1777 govern the plaintiff, exclusive of other statutes. Mead v. Bagnail, 15 Wis. 156; Hancock v. Merriman, 46 id. 159; R. S. sec. 4972, subd. 14. Being in derogation of the common law, sec. 3337 must be strictly construed against the plaintiff and in favor of the public right of navigation and driving logs. 7 Wait’s Act. & Del 568-9; Orton. v. Noonan, 29 Wis. 541; Boone on Corp. sec. 36; Mintxirn v. Larue, 23 ITow. 436. A statute expressly giving a new power to one person or class of persons impliedly excludes all others from the exercise thereof. Conroe v. Bull, 7 Wis. 408; State ex rel. Crawford v. Pastings, 10 id. 525. The language of sec. 3337 clearly implies that to be within the statute the logs must be intermixed before the driving commences. Any other construction would render it invalid. All persons have the right to use the Wisconsin river to drive their own logs, and the legislature cannot abrogate or impair this right by excluding them from running their own logs because some other owner gets upon the river first and takes possession of them. The statute does not provide that the stream shall be obstructed as one of the conditions of the right of one owner to take possession of another person’s logs. Const, art. IX, sec. 1; Ames v. Port Huron L. D. db B. Go. 11 Mich. 140; Waits v. Tit-iaiawassee Boom Go. 52 id. 203, 206; Bxitierfield v. Gilchrist, 53 id. 22; Oardwell v. American Bridge Go. 113 U. S. 205. Sec. 3337, R. S., does not apply to this case because the plaintiff is not a person owning logs on the river. As to definition of the word “owner,” see Buggies v. Nantuclcet, 11 Cush. 433; Benson v. If. db B. Mfg. Go. 9 Met. 562.</p> <p>As to the meaning of the word “owner,” they cited Bronlc v. Beclcer, 17 Wend. 320, 322; Ohoteau v. Thompson, 2 Ohio St. 114; North Penn. P. Go. v. Davis, 26 Pa. St. 238; Wilder v. llaughey, 21 Minn. 101, 106; Ilartman v. Munch, id. 107; Bhie v. Blue, 38 Ill. 9; Sheridan v. Bean, 8 Met. 284; Hartford v. Brady, 114 Mass. 460.</p>

<p>APPEAL from the Circuit Court for Dane County.</p> <p>The plaintiffs filed their petition in the circuit court praying the appointment of commissioners to ascertain and appraise the compensation to be made to them for the taking of their land by the defendant railroad compan}7. The principal allegations of the petition are stated in the opinion. The petition also alleged that the plaintiffs’ property has been and will be greatly damaged and depreciated in value by the passage of trains over, across, and on the street, by reason of smoke, jarring, noise, dust, danger of fire, etc. This allegation the defendant moved to strike out from the petition, but, by an order made at chambers, the motion was denied. The defendant' also demurred to the portion of the petition containing said allegation “ on the ground that the portion of said petition so demurred to does, not state facts sufficient to authorize the institution of this proceeding, of condemnation by the said petitioners, for | the following, among other reasons, to wit: The said petition does not allege that any portion whatsoever of the petitioner’s property has been taken by said railway company for railroad purposes, and in fact no portion of their said property has been so taken. That if their said property has in any way been damaged it has been damaged solely and exclusively for the purpose of restoring the street to its former condition of usefulness as nearly as practicable, and is damage for ■which redress by such proceeding is not authorized.” This demurrer was overruled by an order made at chambers.</p> <p>This appeal is from an order of the court refusing to vacate, and affirming, both orders above mentioned which had been made at chambers, and from an order appointing commissioners in accordance with, the prayer of the petition.</p> <p>They admitted that the railroad company is liable for such damage as resulted from lowering the grade of the street in front of the plaintiffs’ lot, in the same measure that the city would be had it lowered such grade; but argued at length, citing many authorities, that the company is not liable, in addition, for such damage as shall result from operating its railroad, which is located wholly upon its own land, and no part of its structure or right of way on land to which the plaintiffs have any ownership or right whatever; This question should be settled at this stage of the proceedings. The statute says the party interested may show cause why the. petition should not be granted; and unless cause be shown at this time the defendant will be held to have waived his objections and to have assented to the prayer of the petition. Burns v. M. (& M. P. Go. 9 Wis. 450; Stringham v. 0. M. B. Go. 33 id. 471, 475; Whitely v. M. W. P. <& B. Go. 38 U. W. Eep. (Minn.), 753; Denver B. L. & 0. Go. v. N. P. P. Go. 34 Eed. Eep. 386. Where the petitioners claim two classes of damages to their property, one resulting from causes for which they are entitled to recover, the other from causes for which they are not entitled, it is competent for the court to require the petition to be so amended as to specify the causes for which they are entitled to compensation, and also to state that they do not claim damages for any other cause. This general procedure was sustained' by the supreme court of Mew York in In re Niagara F. c& W. P. Go. reported in 46 Hun, 94, and affirmed by the court of appeals in IOS U. Y. 375, and by this court in Walton v. Q. B., W. & St. P. P. Go. 70 Wis. 414. That a demurrer to part of a pleading will lie, see Marsh v. Harris Mfg. Go. 63 Wis. 276.</p>

<p>APPEAL from the Circuit Court for Lincoln County.</p> <p>This action was originally brought by the plaintiffs against B. G. Plumer, to recover damages for the alleged cutting by him, in 1885, of a quantity of pine timber upon land owned by them in the county of Lincoln, and the removal of the same from such land. The plaintiffs are the owners of such land under and by virtue of a tax deed thereof duly executed to one Anderson, who subsequently conveyed the land to the plaintiffs. B. G. Plumer was the original owner of the land under patent issued by the United States to him. He died intestate after this action was commenced, but before issue was joined therein. The action was duly revived and continued against JD. L. Plumer, who had been appointed administrator of the estate of B. G. Plumer.</p> <p>The administrator thereupon answered the complaint, alleging, among other things, the title of his intestates, and that the latter cut and removed the timber in question in good faith, without knowledge of any claim of title to the land in question, of record or otherwise, by plaintiffs or their grantor.</p> <p>The testimony on the trial was to the effect that the defendant’s intestate cut the timber in question, and floated the same down a tributary into the Wisconsin river, where the logs were worth from six to nine dollars per thousand feet, while the stumpage was worth from one dollar fifty cents to three dollars per thousand feet. The court instructed the - jury that if the intestate honestly believed, when he cut the timber and removed the logs, that he owned the land upon which it stood and from which it was removed, the value of the stumpage and interest' was the legal measure of damages; otherwise they should assess as damages the highest market value of the logs while in the possession of the intestate, without interest. The jury assessed plaintiffs’ damages at the value of the logs in the Wisconsin river,— probably at six dollars per thousand feet,— thus negativing the defense of good faith on the part of the intestate. A motion for a new trial was denied, and judgment rendered for the plaintiffs for the damages assessed by the jury. The defendant appeals from the judgment.</p>

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

<p>APPEAL from the Circuit Court for Waushara County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassodat:</p> <p>This action was brought to recover damages for '700 bushels of oats alleged to have been wrongfully taken from the possession of the plaintiff, December 1,1884, by the defendants, and converted to their own use. The taking and conversion of 608 bushels of the oats is admitted and justified under three several chattel mortgages, each purporting to have been executed by the plaintiff to the defendant Mer-riman in consideration of the sum therein named to the plaintiff ill hand paid, whereby the plaintiff granted, bargained, sold, assigned, transferred, and made over, to the said Merriman, oats described in the first and second mortgages as then growing upon forty-seven acres of the farm occupied by the plaintiff and in his possession, and in the third mortgage as seven stacks of oats then standing on his farm and in his possession; and each mortgage conditioned upon being void upon the p aintiff paying the sum therein named according to the condition of the note therein described; and each empowering Merriman, in case of the nonpayment of the sum therein mentioned, or in case he at any time deemed himself insecure, to take possession of said oats and sell the same at public or private sale on five days’ notice, and apply the avails thereof in payment of such sum, returning any residue to the plaintiff after paying all reasonable costs and charges. The first mortgage was for $100, and without date, but filed May 26, 18S4. The second was for $55, given July 26, 1884, and filed October 18, 1884. The third was for $36.08, and given and filed October 20, 1884. It. is conceded that the oats in question were raised by the plaintiff during the season of 1884 on the farm occupied by him, and that the same were by him threshed and stored on said farm, and that when the first mortgage ivas given thirty-eight acres of the oa,ts had not been sown, or at least not up so as to have that mortgage attach to the crop. At the close of the trial the jury returned a verdict in favor of the plaintiff for $181.42, and from the judgment entered thereon the defendants appeal.</p> <p>For the appellants it was argued, among other things, that the mortgagee is not endeavoring in this action to foreclose the mortgages or collect the debt. He is simply defending his title to the property, evidenced by written conveyances thereof. The mortgages under seal are presumed to have been for an adequate consideration, and together with the proof of their ownership by the mortgagee when he took the property, are sufficient evidence of his title. Certainly the promissory notes are no evidence of the title, and their non-production at the trial could raise no presumption of payment or transfer at the time the cause of action herein is alleged is to have accrued.</p> <p>For the respondent it was contended that the mortgages were properly excluded. The theory of the defense was that the plaintiff was indebted to the defendant Merriman and failed to pay, and Merriman took the property by virtue of the mortgages and sold the same to make his debt. To entitle the mortgagee so to take the property there must have been an. existing indebtedness. The best evidence of such indebtedness was the notes referred to in the mortgages. Parol evidence thereof was inadmissible. JBenaway v. Bond, 2 Pin. 449; Campbell v. Moore, .3 Wis. 767. The notes were the principal thing, the mortgages merely the incident, and before the latter could be received in evidence the notes must be produced or their absence accounted for. Langdon v. Buel, 9 Wend. 80.-</p>

<p>APPEAL from the Circuit Court for Portage County.</p> <p>Action to recover a balance alleged to be due the plaintiff for lumber sold to the defendant. The answer, after a general denial, alleges, by way of counterclaim, that the defendant purchased only the pine lumber contained in the piles described in the complaint; that in drawing the agreement or bill of sale the statement that such lumber was pine lumber and that the defendant was to take only such pine lumber, was, by mistake or inadvertence, omitted to be inserted therein; and that there was, in fact, mixed in said piles of lumber a quantity of hemlock lumber, which is included in the lumber mentioned in the complaint. Judgment is asked for the reformation of the agreement. The plaintiff denied the allegations of the counterclaim.</p> <p>A trial, by the court, of the issue raised by the counterclaim and reply resulted in a general finding against the defendant. Upon the trial of the issue raised by the complaint and the general denial contained in the answer, there was a verdict in favor of the plaintiff for $612.53. From the judgment entered accordingly the defendant appealed.</p>

<p>Insurance against Fire. (1, %) Failure to attach copy of application to policy: Signature of insured: Presumption as to truth of statements. (8) Application filled out by agent: Untrue statements: Incumbrances. {4J Failure to disclose material facts: Waiver.</p> <p>1. A copy of an application for insurance without a copy of the applicant’s signature then to, is not a true copy of such application within the meaning of sec. 1945a, E. S.</p> <p>2. Under sec. 1945a, E. S.. if an insurance corporation fails to attach to a policy a true copy o1' an application which is made a pan; thereof or referred to therein, the statements made in such application will, as against such corporation, be conclusively presumed to be true.</p> <p>3. The agent of an insurance company filled out an application and, without inquiry of or authority from the insured, inserted therein an answer stating that the property was unincumbered. He presented the application to the insured for his signature, without acquainting him with its contents, and the latter signed it, not knowing that it contained such statement. Held, that the insured is not bound by such statement, and the company cannot, on tho ground of its falsity, avoid llr.; policy.</p> <p>4. If an insurance company receives an application for insurance with a material question therein unanswered ornot fully answered, and issues its policy thereon, it thereby waives a provision in the policy avoiding it in case the facts called for by such question are not fully disclosed.</p> <p>See note to this ease in 40 N. W. Rep. 386.— Rep.</p>

<p>Loas and Timbee: Weongpul Cutting: Measuee op Damages. (l) Action by tax-title claimant against original owner. (3) Conditional title: Unrecorded tax deed. (8-5) Notice to original owner of transfer of title: Duty of inquiry: Reliance on abstract of title certified by register of deeds. (6) Belief in validity of title: Good reason not necessary.</p> <p>1. Seo. 4269, E. S., as amended by ch. 239, Laws of 1882, is applicable to an action by one claiming under a tax deed, against the owner of the government title, for the cutting and removal of timber from the land.</p> <p>2. Sec. 4269, E. S., being penal in its nature, must be strictly construed ; and the owner of a mere conditional title (e. g. one claiming under an unrecorded tax deed) which does not carry with it the right of possession, is not within the section, and cannot recover the penalty therein prescribed in an action against the original owner for a trespass committed upon the land while the plaintiff's title thereto remained conditional.</p> <p>8, One who seeks to recover the damages prescribed by sec. 4269, E. S., for a trespass upon his land committed by one who once owned the same but whose title has been divested by tax proceedings or other process of law, must have seen to it that such original owner was informed of all the material facts essential to a transfer of the title.</p> <p>4. In 1878 a tax deed of certain land was issued to the plaintiffs and duly recorded. In 1883 the defendant S. purchased the land from the owner of the government title. At the time of the purchase S. had an abstract of title, certified by the register of deeds, showing that no tax deed of the land had been recorded between August, 1877, and March, 1880, and he had no knowledge of the plaintiffs’ deed. In December, 1886, the plaintiffs notified him that they took a tax deed of the land in March, 1878, but did not state that such deed had- been recorded. Afterwards S. cut timber from the land. The plaintiffs notified the defendant I., who was employed by S. to superintend such cutting, that they owned the land, and forbade the cutting of timber, but did not state any particulars of their title. Held, that such notices to the defendants were not sufficient to charge them with the duty of making inquiry and ascertaining whether the plaintiffs’ tax deed was of record.</p> <p>5. In an action to recover the damages prescribed by sec. 4269, R. S., as amended by ch. 239, Laws of 1882, for the cutting of such timber, the jury should have been instructed, on the question of the good faith of S., that the certificate of the register of deeds, made about two years after the recording of the tax deed, showing no tax deed of record, was such evidence as S. might fairly rely on if he believed the certificate to be con-ect.</p> <p>6, If the defendant in such an action cut the timber in good faith, believing that he had a valid title to the land, it is not necessary, in order to defeat a recovery of the damages prescribed by that statute, that he should have had good reason so to believe.</p>

<p>APPEAL from the Circuit Court for Portage County.</p> <p>Action to recover damages for the killing of an ox on the track of the railroad operated by the defendants. The facts will sufficiently appear from the opinion. On the trial, when the plaintiff rested, the defendants moved for a non-suit, which was denied; and a motion, made at the close of the testimony, that the court direct a verdict in favor of the defendants was also denied. The jury returned a special verdict, and also found generally in favor of the plaintiff, assessing his damages -at $00.73. From the judgment on the verdict the defendants appeal.</p> <p>They contended, inter alia, that the language of the statute restricts the liability to the owners of the adjacent land from which the animal comes upon the track. Unless the ox passed from the land of the plaintiff to the railwa}7 track, the plaintiff cannot recover. Conroe v. Bull, 7 Wis. 408; State ex rel. Craviford v. Hastings, 10 id. 525; McDonnell v. P. <& N. A. li. Corp. 115 Mass. 504; Giles v. D. & M. P. Co. 55 N. II. 552. The court erred in admitting evidence as to the declarations of defendant’s witness .made out of court and subsequent to the killing of the ox. Milwaukee do Miss. P. Co. v. Finney, 10 Wis. 3SS; Livesley v. Lasalette, 28 id. 41; Austin v. Austin, 45 id. 531; Soren-son v. Dundas, 42 id. 042; Mutcha v. Pierce, 49 id. 231; Fitzgerald v. Weston, 52 id. 354; Story on Agency, sec. 135.</p>

<p>APPEAL from the Circuit Court for Portage County.</p> <p>Action to recover damages on account of delay in the transportation of potatoes by the defendants over the railroad operated by them. The facts are stated in the opinion. At the close of the testimony the trial court directed the jury to return a verdict for the defendants. From the judgment entered on such verdict the plaintiff appeals.</p> <p>To the point that, the evidence being conflicting and there being evidence to go to the jury on the question of defendants’ negligence in not placing the car upon the “ Y ” on Saturday night, it was error for the court to direct the jury to find for the defendants, they cited Dodge v. McDonnell, 14 Wis. 553; Golly v, Franklin, 15 id. 311; Langhnff v. M. & P. du G. R. Go. 1,9 id. 4S9; Imhoffv. G. do M. R. Go. 22 id. 681-4; 8chomer ©, Hekla F. Ins. Co. 50 id. 575; Jones v. G. tic N. W. R. Go. 4.9 id. 352; Jucker v. O. c& FT. IF. R. Co. 52 id. 150; Townley v. G., M. do St. P. R. Co. 53 id. 626; 8pensley v. Lancashir« Ins. Go. 54 id. 433; Johnson v. G. da FT. TF. R. Go. 56 id, 274; Fitts v. O. O. R. Go. 59 id. 323; Hoye v. G. do Ff. TF. R. Go. 62 id. 666; Leavitt v. G. do Fí. TF. R. Co. 64 id. 228:; Lawrence University v. Smith, 32 id. 592.</p>

<p> Railroads: Collision at highway crossing: Duty to loóle and listen: Duty to give learning, etc.: Cross negligence: Court and jury. </p> <p>1. The rule that a person approaching a railroad crossing is bound to look and listen for the approach of a train before attempting to cross the track, is not applicable to a case where the train has just passed the crossing while a person driving upon a trot was within a few rods of it, and has passed on in such a manner as to induce the belief that it is to continue on in that direction, and where he has no reason to suppose that it will immediately return.</p> <p>2. If in such case the train is to be immediately backed down over the crossing again, it is the duty of the railroad company to have some one in a position to prevent persons from attempting to pass over the crossing in the mean time, or to signal the train to stop if there is danger of a collision; and the train should not be backed over the crossing without previous caution or signal given.</p> <p>S. The question whether a collision between a railroad train and a carriage at a highway crossing, resulting in the death of the driver of the carriage, was caused by the gross negligence, recklessness, and criminal misconduct of those in charge of the train, is especially a question for the jury, unless the evidence is perfectly conclusive and overwhelming.</p> <p>See note to this case in 40 N. W. Rep. 394.— Rep.</p>

<p>APPEAL from the Circuit Court for Pierce County.</p> <p>Action upon a contract by the terms of which the defendant insured the plaintiff’s assignor, one Frank Bossell, against loss or damage to his hotel building by fire, to the amount of $1,800, for the term of one year from September 10, 1886. The allegations of the complaint are sufficiently stated in the opinion. The defendant demurred thereto on the ground, among others, that it did not state facts sufficient to constitute a cause of action; and appealed from an order overruling the demurrer.</p>

<p> Wills: All executors must unite in executing power to sell land: Equitable conversion: Specific performance of contract. </p> <p>1. 'Where a will, either expressly or by implication, vests in the executors power to sell land, all of the executors must (under sec. 2137, E. S.) join in the execution of such power. An agreement to sell made by two of three executors is not valid or binding upon the third.</p> <p>2. Though the will directs the executors to convert land into money, such land cannot be treated as personalty and sold by one executor without the consent of the others.</p> <p>3. A court of equity will not compel -an executor to join in a-conveyance of the testator’s land in pursuance of a .contract made by the other executors without his approval or consent, where it appears that the dissenting executor is acting in good faith andfor the best interests of the estate.</p>

<p> Tax titles: Limitation of actions: Adverse possession. </p> <p>1. Sec. 4212, R. S., being designed to supply certain conditions o£ actual adverse possession, but not to exclude others, it is not necessary, under sec. 1190, in order to prevent the running of the three years limitation in favor of tax deeds, to show an actual possession of the character specified in said sec. 4212.</p> <p>2. If, during the three years next after the recording of a tax deed, the former owner actually and exclusively occupies the land in hostility to the titje of the grantee in such deed, and subjects the land to his will and dominion by actual and appropriate use thereof, according to its locality, quality, and character, the evidences of such occupancy being tangible and visible to a person going upon and examining the land, such occupancy and use constitute adverse possession by such former owner.</p>

<p>APPEAL from the Circuit Court for Dunn County.</p> <p>Action to have a mortgage, and a certificate of sale issued on the foreclosure thereof by advertisement, adjudged to be no lien, claim, or incumbrance on the premises, and to have the plaintiff’s claim to an undivided half of the premises established as against the claim of the defendant under such mortgage and certificate of sale. The facts will sufficiently appear from the opinion. The plaintiff appeals from a judgment dismissing the action.</p> <p>to the point that a mortgage of the homestead by a married man requires the signature of his wife to make it valid, even though at the time she is living separate and apart from him, cited Doyle v. Coburn, 6 Allen, II; Sherrid v. Southwick, 43 Mich. 515; Lies v. De Diabler, 12 Cal, 321; Ott v. Sprague, 21 Kan. 820; Chambers v. Cox, 23 id. 393; Header v. Place, 43 N. H. 301; Welch v. Pice, 31 Tex. 688; Barker v. Dayton, 28 Wis. 367.</p> <p>They contended : (1) The wife of the mortgagor had abandoned her homestead rights prior to the time of the execution of the mortgage, and never re acquired or repossessed herself of the homestead rights and privileges given her by law. The statute in force in 1872 (sec. 24, ch. 134, R. S. 1858) gave the wife no estate in the land, but imposed a disability'" upon the husband and conferred a privilege upon the wife. Ferguson v. Mason, 60 Wis. 377; Piehl v. Bingenheimer, 28 id. 84. This privilege the wife could, and in this case did, waive or forfeit. Barker v. Dayton, 28 Wis. 367; Keyes v. Scanlan, 63 id. 345; Slu-rrid v. Southwick, 43 Mich. 515; Bradley v. Deroche, 7 S. W Rep. (Tex.), 779; Dukev. Peed, 64 Tex. 705. (2) The premises in question ceased to be a homestead prior to the foreclosure of the mortgage and the commencement of this action, and the mortgage is valid as to the estate remaining after the expiration of the homestead interest or estate, and consequently valid as against the plaintiff who claims only this remaining or remainder estate. (3) The plaintiff’s cotenant was a necessary party. (4) The plaintiff’s demand is inequitable. He was morally, if not legally, bound to support the mortgagor, his father. If now he is legally entitled to the land discharged of the mortgage, he is morally bound to pay to the mortgagees the sums they paid out for his father, and the relief he asks ought not to. be given unless he pays such sums. See 1 Pom. Eq. Jur. sec. 385, note 1, and sec. 386, note 1; Ilartv. Smith, 44 Wis. 213. (5) The evidence fails to show a cause of action under sec. 3186, E. S., as. the plaintiff has not the actual possession of the land. Wals v. Grosvenor, 31 Wis. 681; Shaffer v. Whelpley, 37 id. 334. Plaintiff’s remedy, if any, is at lav/.</p>

<p> Landlord and tenant: Stipulation to surrender property before expiration of lease: Right of re-entry: Authority of cotenant or partner to malee surrender: Damages. </p> <p>1. A stipulation in a lease that the lessee shall surrender the leased premises to the lessor whenever the latter desires to proceed with contemplated improvements thereon, does not give the lessor the right to terminate the lease by re-entry, but is merely a covenant for the breach of which the lessor may recover damages.</p> <p>2. Each of two lessees under a lease containing such a stipulation is the agent of the other to make the surrender when the contingency happens.</p> <p>3. But if a lease containing no such stipulation is held by two persons as partners, one of them cannot surrender the lease without the concurrence of the other, if the latter is reasonably accessible and can be consulted.</p> <p>4. A partner of the lessee in the business pursued on the leased premises, but who is not himself a lessee or interested in the lease, has no authority to surrender the lease.</p> <p>5. Where the lessor is justified in entering and taking possession of the leased premises, the lessee can recover no damages for loss of a portion of the term or for injury to his business; but if the lessor destroys property of the lessee on the premises, or does any unnecessary damage thereto, the latter may recover therefor.</p> <p>6. But if the lessee has previously sold his interest in the lease and business and the personal property on the premises, he cannot recover damages either for a wrongful re-entry by the lessor or for any injury to such property.</p>

<p>Teespass to Personalty : Execution : Damages. (1) Seizure of stocle of goods lender executions afterwards set aside: Defense. (%) Measure of damages: Interest: Value of business: Depreciation, in goods: Expenses of recovery: Costs paid: Attorney's fees: Supposed loss of profits: Lossby voluntary assignment: Injury to feelings.</p> <p>1, Judgments and executions which have been set aside are no defense to the parties who caused them to be entered and issued, in an action subsequently brought to recover damages for the seizure of property under such executions. ’</p> <p>2. In an action to recover damages for the wrongful seizure of plaintiff's stock of goods in his store under executions, it appeared that the sheriff closed the store and held the goods therein for twenty-six days, and then delivered them to the plaintiff or his assignee; . that immediately after the seizure the plaintiff made a voluntary assignment for the benefit of his creditors; and that the defendants (who liad caused the executions to issue) had acted in good faith, without malice or intent to oppress the plaintiff, in an attempt to collect their debts in what, they were advised was a legal way. The judgments and the executions under which the goods were seized had been set aside before the commencement of the action. Held, '• that the damages recoverable by the plaintiff should be restricted to the following items: (1) Interest on the value of the goods during the time they were held by the officer, or, in lieu thereof, at the option of the plaintiff, the value of his business during that time; (2) any depreciation in the value of the goods during that time; (3) any expenses the plaintiff was put to in obtaining a return of the goods. This last item would include the amount he was compelled to pay for the costs included in the illegal judgments and the sheriff’s fees charged for executing the illegal executions; also any expenses to which the plaintiff had been put by way of rent or use of store and clerk’s hire during the time the defendants had possession of the store, and the amount necessarily expended for counsel and attorney’s fees in the proceedings to set aside the judgments and executions. He could not recover for any supposed loss of profits from the interruption of his business, for any losses which may have occurred to him by reason of his assignment, or for injury to his feelings.</p>

<p>APPEAL from the Circuit Court for Dane County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>This is an action to enforce a lien for certain materials furnished and work performed by the plaintiffs as a firm for the defendant at his special instance and request, between October 23,’18S7, and December 19, 1887, in the erection and construction of a dwelling-house for said defendant on a lot owned by him and described in the complaint. The complaint is in the usual form, and alleges that the last date of furnishing such material and doing such work was December 19, 1887, with an itemized bill of said materials and work annexed thereto as apart thereof; and there was also annexed as a part thereof a copy of the plaintiff’s claim for a lien upon said building and lot, filed therein April 23, 1888, for $131.60. To such complaint the defendant demurred on the grounds t hat it appears on the face of the complaint (1) that there is a defect of parties plaintiff and defendant, and (2) that it does not state facts sufficient to constitute a cause of action. From the order overruling the demurrer the defendant appeals.</p> <p>They contended, inter alia, that under the present statute (ch. 143, R. S.) the action is an equitable one. George v. Everhart, 57 Wis. 399; Spruhen v. Stout, 52 id. 525; Druse v. Sorter, 57 id. 646; Suse v. WashT)urn, 59 id. 416; Edleman v. Kidd, 65 id. 23; Moritz v. Larsen, 70 id. 573. It therefore falls within the language of Dixon, C. J., in Sail v. Hinckley, 32 Wis. 362, 367, that the doctrine of equality of lien and equal right of payment would prevail, “ unless there was something in the statute expressly forbidding it. In that case all the lien creditors must have been made parties to the suit.” There is nothing in the statute forbidding it, but, on the contrary, every clause provides for it and makes the requirement mandatory that all persons interested shall be parties; and such would appear to be the effect of the decision in Allis v. Meadow Spring Distilling Go. 67 Wis. 16, 21. The complaint is fatally defective, therefore, for the reason that it does not contain allegations “ as to defendants who have filed claims for liens,” or “ as to defendants having subsequent liens or being subsequent purchasers;” nor does it allege that there are no such persons. Such negative allegation is required. MoGlone v. Prosser, 21 Wis. 273; Story’s Eq. PL secs. 667-673, and notes. If the statute requires all persons claiming liens to be made parties, and only in such case gives the right of foreclosure, allegations bringing the case within the statute must certainly be made. Ercan-brack v. Rich, 2 Pin. 441; Worth River Bank v. Rogers, 8 Paige, 648.</p>

<p>APPEAL from the Circuit Court for Dane County.</p> <p>This is an action brought to recover damages for the alleged malpractice of the defendant as a physician. The substance of the complaint is that for several years before September, 1885, the defendant bad been engaged in the practice of medicine and surgery in- the city of Madison, and during all that time advertised and held himself out to the public as a physician, and attended to all such diseases and ailments of the human body as a physician is usually called upon to treat, and such as are ordinarily treated by physicians of good standing and repute in said city of Madison ; that he also gave out that he possessed some mysterious power, insight, or skill, not possessed by physicians in general, and for that reason could cure diseases generally thought to be incurable, and could relieve ordinary diseases and ailments more speedily and effectually than other physicians in good standing and repute as such; that shortly before September 1, 1885, the plaintiff, Thomas Nelson (then about fifteen years of age), was afflicted with some disease of his right hip, and on or about that date his father called the defendant, as such physician, to attend him and treat him for said disease; that the defendant undertook to .attend the plaintiff as a physician, and treat and care for him in a proper manner as such physician, but that, disregarding his duty in the premises, the defendant wrongfully and carelessly failed to make a proper or ordinary examination of the plaintiff, such as a physician of ordinary skill, care, or prudencehvould have made, and pronounced said disease to be rheumatism when it was in fact a disease of the hip joint, which disease has well-known, peculiar signs and symptoms, which a physician of ordinary skill and care would at once detect; that there are well-known and acknowledged remedies for such disease, which all physicians of ordinary skill and prudence invariably use in the treatment thereof; that the defendant, in disregard of his duty as such physician, negligently and unskilfully treated the plaintiff for rheumatism, and not hip-joint disease, and continued so to treat him until about the middle of the following January; that during such time the defendant encouraged the plaintiff to walk persistently and use his right leg in walking, asserting that walking was beneficial to him; that the plaintiff grew constantly worse under such treatment, until he could not walk, and suffered great pain and distress during the time, but the defendant constantly asserted, when told he was getting worse, that he was in fact getting better; that in January, 1886, after the plaintiff had wholly lost the use of his leg, other physicians were called in, and by most persistent and thorough medical treatment the plaintiff has to some extent recovered the use of his leg, but will be a cripple for life; that if the defendant had treated .the plaintiff properly he would have been speedily and completely restored to health, and would have recovered the full use of his leg, also that he would have been relieved in a great measure from the suffering he was compelled to endure.</p> <p>The defendant answered that, during the time stated in the complaint, he had been what is commonly known and understood as a spiritualist and clairvoyant physician, and as such has treated diseases and ailments of the human body and prescribed for patients calling upon him for treatment; most of his practice having been in and about the city of Madison. The answer proceeds as follows: “That on the 1st day of September, 1885, the said plaintiff, in person or by his father, Tollef A. Nelson, called upon this defendant for treatment for some ailment of which he, the said plaintiff, was then suffering; but defendant alleges that whatever treatment he gave the said plaintiff was strictly in accordance with the ordinary and customary practice and system of practice as used and employed by spiritualists and clairvoyants in diagnosing, attending, and prescribing for diseases and ailments of the human body, and that he was employed by the said plaintiff and the said Tollef A. Nelson to treat the said Thomas Nelson only as a spiritualist and clairvoyant, and not in any manner as an ordinary physician or surgeon possessed of the ordinary knowledge or skill belonging to physicians and surgeons and doctors of medicine in the regular schools of practice; that the said Tollef A. Kelson and the said Thomas Nelson both well knew the manner of diagnosing and prescribing for diseases employed by this defendant, and well' knew that this defendant employed no other and had no other manner or method of determining or diagnosing diseases and ailments of the human body, before the said plaintiff came to this defendant; that said plaintiff came to this defendant desiring and expecting this defendant to diagnose said disease and prescribe for the same as a spiritualist and clairvoyant physician. Defendant further alleges, on information and belief, that the said Thomas Nelson was, at the time of said treatment, afflicted with some rheumatic affection of his limb and hip, from which he had been suffering for a long time prior to calling this defendant to treat said ailment.”</p> <p>The cause was tried by a jury, and resulted in a verdict and judgment for the plaintiff. The testimony and proceedings on the trial, so far as the same are essential to an understanding of the exceptions considered, are sufficiently stated in the opinion. The defendant appeals from the judgment.</p> <p>They contended, inter alia, that an action of malpractice is essentially an action on contract. Whittaher v. Collins, 34 Minn. 299. The undertaking of the physician is that he will treat the patient according to the system or school which he professes and avows, and that he will use due care and skill according to the practice of that system or school; 3 Whart & S. Med. Jur. secs. 751, 769; Shearm. & Eedf. on Meg. secs. 437, 435; Whart. on Keg. sec. 733; Cor si v. Mariteelc, 4 E. D. Smith, 1; Bowman v. Wood, 1 Greene (Iowa), 441; Comm. v. Thompson, 6 Mass. 134; Patten v. Wiggin, 51 Me. 594; MeRleroy v. Sewell, 73 Ga. 657; Story on Bailm. sec. 435. The remarks .of counsel, persisted in after objection by defendant and admonition by the court, could have no other effect than to seriously prejudice the defendant, and should work a reversal of this judgment. Brown v. /Swineford, 44 Wis. 282; Raime v. Omro, 40 id. 371; State v. Clifford, 58 id. 113, 124; Elliott v. Espenhain, 50 id. 272; Balter v. Madison, 02 id. 137. .</p> <p>They contended, among other things, that a person who assumes to be competent to treat a disease, and holds himself out to the public as such, is liable for any ignorance or negligent treatment thereof. Pippin v. Shephard, 11 Price, 400; Wilmont v. Howard, 30 Yt. 447; Mussels Ex'r v. Chase, 20 Ohio St. 577; Patten v. Wiggin, 51 Me. 504; Tifft v. Wilcox, 6 Kan. 46; Smothers v. Hanks, 34 Iowa, 286; Carpenter v. Blake, 60 Barb. 488; 8. C. 50 N. Y. 606. Physicians who offer themselves to the public as practitioners, impliedly promise that the}7 will use their best skill and judgment in ascertaining the nature of the malady and the mode of treatment best calculated to cure. Reynolds v. Graves, 3 Wis. 416; Patten v. Wiggin, 51 Me. 504; Bel: linger v. Craigue, 31 Barb. 534; Sumner v. Utley, 7 Conn. 257; Wood v. Clapp, 4 Sneed, 65; London v. Humphreys, 0 Conn. 200; Long v. Morrison, 14 Ind. 506; MoCandless v. Mo Wha, 22 Pa. St. 261. It is immaterial whether or not the defendant is a licensed medical practitioner, provided he professes to be skilled in medicine and actually treats patients. Mussers Ex'r v. Chase, 20 Ohio St. 577; Llex v. Spiller, 5 Car. & P. 333; Carpenter v. Blake, 60 Barb. 48S; Rex v. Long, 4 Car. & P. 308. When the case will admit of but'one mode of treatment, the use of a different treatment is evidence of want of skill. A physician must conform to the established mode of treatment; if he departs from it he does so at his peril. Carpenter v. Blake, 60 Barb. 488; Patten v. Wiggin, 51 Me. 504. “The law has no allowance for quackery. It demands qualifications in the profession. He is bound to exercise his art or profession rightly and truly as he ought; for less than this lie will be liable in damages.” Almond v. Nugent, 34 Iowa, 300^ McCandless v. MeWha, 22 Pa. St. 261; Bex v. Long, 4 Car, & P. 398; Bex v. Van Butehell, 3 id. 629.</p>

<p>APPEAL from the Circuit Court for Dane County.</p> <p>Action, for a trespass to land. The facts are stated in the opinion. The plaintiff appeals from a judgment in favor of the defendant. .</p> <p>They contended, inter alia, that it was error to exclude the evidence offered to show that the post was set for the purpose of hanging a gate at the extremity of the private way. The defendant having only an easement in the land for the purpose of a way, the plaintiff might maintain suitable gates. Whaley, v. Jarrett, 69 Wis. 613.</p>

<p>APPEAL from the Circuit Court for Dana County.</p> <p>The case is sufficiently stated in the opinion.</p> <p>They contended, inter alia, that the municipal ordinance and acceptance thereof by the defendant constitute a contract, whereby the city grants to the defendant certain privileges, in consideration of which the defendant agrees to perform the conditions mentioned in the ordinance. Mayor of Troy v. T. dé L. R. Go. 49 N. T. 657; Waterloo v. Waterloo St. R. Co. 71 Iowa, 193; People v. Chicago W. D. R. Co. 18 Bradw. 125; State ex rel. City of Kansas v. C. C. S. R. Co. 85 Mo. 263, 282; Quincy v. Bull, 106 Ill. 337; Burlington v. Burlington St. R. Co. 49 Iowa, 144, 147. Such an ordinance certainly confers no corporate powers, .but those powers must be obtained by the proper compliance with; the statute. Sims v. Street R. Co. 37 Ohio St. 556. The complaint alleges simply a breach of contract, and not a violation of the state law chartering the defendant; and therefore this action, brought under sec. 3241, B. S., cannot be maintained. People ex rel. Mayhury v. Mut. G. L. Co. 38 Mich. 154. The attorne}*- general, in behalf of the state, cannot bring an action against a corporation for any other purpose than to try some public question in which the state itself is interested. Att'y Gen. ex rel. Saunders v. Albion Academy, 52 Wis. 469; State ex rel. O'Brien v. Kill Buck Turnpike, 38 Inch 71; People ex rel. Macey v. U. dé 0. Turnpike Go. 2 Johns. 190. Quo warranto is an extraordinary remedy, and if relief can be afforded in the ordinary form of civil actions, proceedings by quo warranto cannot be maintained. High on Ex. Leg. Eem. 617; 5 Field’s Lawyers’ Eriefs, sec. 158; People ex rel. Macey v. II. dé 0. Turnpike Go. 2 Johns. 190; State ex rel. Grisell v. Marlow, 15 Ohio St. 114. The policy of the law, as shown both by general enactment and by the charter of the city of Madison, is to commit to that municipality the control and regulation of the use of its streets; and while full powers lie in its own hands for the protection of all possible interests and the assertion of all rights in its highways, the courts will not permit such duty to be shifted from the city, and will not exercise an extraordinary remedy for its relief. Cairo dé V. P. Co. v. People, 92 Ill. 170. To sustain proceedings by quo warranto, the acts of misuser or non-user must be touching matters which are of the essence of the contract between the sovereign and the corporation, and' they must be wilful and repeated. High on Ex. Leg. Eem. sec. 648; Comm.v. Oomm.. Bank, 28 Pa. St. 383; Karris v.M. V. dé S. 1. B. Go. 51 Miss. 602-8; State v. O. dé K. Turnqñke Go. 2 Sneed, 254.</p> <p>The city might have entered and taken possession of the streets and removed the track of the street railway, for the failure to comply with the conditions of the contract under which the defendant occupies such streets. Pacific P. Co. v. Leavenworth, 1 Dill. 393. Or, at its option, the city might have made the necessary repairs, etc., upon the streets, and have recovered the cost thereof in a direct action therefor against the defendant. Oconto v. C. & K. IF. P. Go. 44 Wis. 231.</p> <p>They argued, among other things, that the action is brought for & public injury, and not upon any supposed breach of contract with the city as a body corporate. Under sec. 1862, N. S., the provisions of the city ordinance became a part of the law of the existence of the street railway company, so as to modify and restrain the rights, privileges, and franchises of the company in the same manner and to the same extent as though the company had a special charter in which the provisions of said ordinance were incorporated. The ordinance imposes duties of a public and general character, which are as binding as if contained in the statute. In conferring the franchise to use the streets, by virtue of its delegated authority from the legislature, the common council acted on behalf of the state as public officers, and not as agents of the local municipal corporation. The duty of protecting the public streets for public travel is a public and not a corporate duty. Schultz v. Milwaukee, 49 Wis. 250; Little v. Madison, id. 605; Williams v. Forkville, 59 id. 119; 2 Dillon on Mun. Corp. sec. 655; KUtredge v. Milwaukee, 26 Wis. 46-5.0; Griggs v. Foote, 4 Allen, 195; Manners v. Haverhill, 1-85 Mass. 165; McCarthy v. Boston, id. 197; People ex rel. Loomis v. Auditors, 75 N. Y. 316; Transportation Co. v. Chicago, 99 U. S. 635; Smith v. Washington, 20 ITow. 135.</p> <p>The case is one of important public interest,— so important and so entirely public that the state has the right and is charged with the, duty to interfere and procure the dissolution of the company. 2 Morawetz on Priv. Corp. sec. 1018; People v. K. dé M. Turnpike P. Co. 23 Wend. 193; People v. II. dé C. Turnpike li. Co. id. 254. Whenever a street railway company notoriously violates and disregards the rules and regulations prescribed by municipal authorities under the power delegated to them, it subjects itself to forfeiture of its franchise as fully and completely as a railway company would have done by refusing to comply with the Potter law. See Att'y Gen. v. Railroad Oos. 35 "Wis. 523, 524, 595. Information in the nature of quo warrcmto, presented by the attorney general in behalf of the state, is the appropriate remedy. Reed v. G. c& 0. Canal Corp. 65 Me. 132; Comm. v. T. M. Turnpike Co. 5 Cush. 509; S. C. 11 id. 171; High on Ex. Leg. Eem. secs. 651 et seq.; People ex rel. Coon v. P. P. R. Co. 31 Mich. 178; S. C. 32 id. 248.</p> <p>The franchises which the defendant derived from the mere act of organization are part only of the franchises it obtained and enjoys — franchises in principio donationis as they are termed in Attfy Gen. v. Railroad Cos. 35 Wis. 560. Franchises are special privileges derived by public grant which do not pertain to private persons as of common right. “ A franchise is not essentially corporate.” The franchise of occupying and using the highways of a state, which is granted by the city authorities as public officers and agents of the state, is one without which the strictly corporate franchises of the defendant are worthless. The distinction pointed out in 35 "Wis. 560, is in harmony with Sims v. Street R. Co. 37 Ohio St. 556, 569, 570.</p> <p>The existence of remedies in favor of the city is entirely consistent with the existence of the remedy here asserted on behalf of the state for the benefit of the general public. Fitts v. C. C. R. Co. 59 Wis. 329; Comm. v. T. M. Turnpike Co. 11 Cush. 171-5.</p>

<p>APPEAL from the Circuit Court for Bane County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>This action is for the construction of the will of Francis F. Ford, deceased, found in YO Wis. 22-25. The original judgment, among other things, construed the instrument, and in effect held that it was a valid will in all its parts, and not within the provisions of the statutes of this state against perpetuities or the suspension of the power of alienation; and that the will invested the executor with power and authority to convert the personal property and the lands in Kansas, Michigan, and Wisconsin into real estafe in Kansas City, Missouri. That judgment was reversed by this court on each of the four appeals therefrom, and the cause was remanded with directions to enter judgment in accordance with and to the extent indicated in the opinion of this court upon such appeals (YO Wis. 44-69), “but leaving opeD for further action the questions as to the validity of such conversions, suspensions, and accumulations, until authoritatively determined by the rightful jurisdiction.” YO Wis. 69. In pursuance of that mandate, judgment was entered in the circuit court, August 13, 1888, from portions of which the minor son, Marcus 0. Ford, appeals.</p> <p>They contended, inter alia, that the judgment determines, in advance of any action of the courts of those states, what operation and effect the will has on the lands of the testator in Michigan and Kansas. There is a clear distinction between ascertaining the meaning of the language of a will and the effect or operation of it. The former is to be ascertained by the court of the domicile of the testator; but the lex rei.sitae governs in respect to the construction of the will so far as the character and extent of «the estates created by it are concerned. See Wharton on Confl. of Laws, sec. 597; 1 Redf. on Wills, 398; 1 Jarman on Wills, 1; McCartney v. Osburn, 118 Ill. 403; Richards v. Miller, 62 id. 417; Kerr v. White, 52 Ga. 362; Mechanics' c& T. Ranh v. Harrison, 68 id. 463; Applegate v. Smith, 31 Mo. 166; Oabanne v, Shinher, 56 id. 357; White v. Howard, 46 N. T. 144; Knox v. Jones, 47 id. 389; Jennings v. Jennings, 21 Ohio St. 56; Wills v. Oowper, 2 Ohio, 312; Myers v. Reed, 17 Fed. Rep. 401; McOormich v. Sullivant, 10 Wheat. 192; McOoon v. Scales, 9 Wall. 27; Watldns v. Holman, 16 Pet. 25; Brine v. Insurance Go. 96 U. S. 635; Jackson v. Ghew, 12 Wheat. 162; Williamson v. Suydatn, 6 Wall. 738; Morris v. Harris, 15 Cal. 226; Bingham's Appeal, 64 Pa. St. 345; Sewall v. Wilmer, 132 Mass. 131.</p>

<p>MaNdamus to Wood County and to the Board of Supervisors of Wood County. The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>It appears from the relation, in effect, that the cities of Grand Rapids and Centraba were respectively incorporated many years ago, and are situated upon opposite sides of the Wisconsin river,— a navigable stream,— in Wood county; that the relators are residents, citizens, tax-payers, and freeholders of one or the other of said cities; that one of said cities contains a population of 1,700, with property therein assessed at $200,000, and the other a population of 1,000, with property therein assessed at $135,000; that, in 1867, the Wood County Bridge Company, a corporation created and organized under ch. 178, P. & L. Laws of I860, constructed a toll-bridge across said river, between said cities, at a point described, and continued to run and operate the same as a toll-bridge until it was purchased by the county in 1873; that by sec. 6 of said chapter it was provided, in effect, that said county should, at any time after five years from September 1, 1867, have the right to purchase the same by paying to said company the value at which the same should then be appraised in the manner provided for in said act; that in March, 1873, the county, pursuant to such provisions, exercised its right to purchase, and did purchase, said bridge from said company, and paid it therefor, including all the appurtenances, toll-house, and the soil or landing places upon which the ends of the bridge rested, and the right of way thereto, the sum of $10,500,— that being the value as fixed by such appraisers; and that said bridge then became, and ever since has been and still remains, the property of the county, and is one of the principal highways of the county; that it then became, and ever since that time has remained, a free bridge, which it has been and is the county’s duty to keep up and maintain in a safe condition for public travel as a free bridge; that the county did so keep up and maintain said bridge in such safe condition until some time in 1875, when, after it became dilapidated and unsafe for public travel, it refused to further repair the same, but was compelled to do so by the court (41 Wis. 28); that thereupon the county repaired the bridge, and placed it in safe condition for public travel; that in 18.77 the county rebuilt said bridge anew, of wood, at a cost of about $8,000; and that it purchased the approaches or right of way leading from the adjacent streets to the ends of the bridge, a distance of about eighty feet, to be used as a public highway in connection with the bridge.</p> <p>It further appears from the relation that on April 11,1888, the two westerly spans of said bridge and one pier were taken out and carried away and destroyed by an ice jam and high water, leaving only one pier, one span, and the two abutments remaining; that the total length of said bridge, exclusive of the approaches, was 525 feet, and the length of the remaining span about 175 feet; that said bridge is the only wagon bridge across that river between said cities, or within said county, or for a distance of twenty-five miles either way from said cities, and that there are no ferries within that distance, nor any fordable point even at a low stage of water; that the county is the only corporation or body authorized to bridge said river in said county; that said bridge is located at the foot of Grand rapids, in said river, which is subject to frequent floods and freshets; that transportation across the same between said cities by means of ferry or boats, during the greater portion of the year, is and will be extremely unsafe, hazardous, and dangerous to life and property; that the bridge is necessary for the business intercourse between the people of the respective cities, and to enable the people of each to reach the railroad depots on the respective sides of the river, and to carry the mail between said cities and to and from said depots and the county buildings, offices, and courts in said' city of Grand Rapids; that there are 18,000 inhabitants in the county, of which only 3,000 are east of the river; that the cost of rebuilding said bridge with new stone piers and abutments and iron superstructure will not exceed $25,000, and that the cost of repairing the same, by using what is not destroyed, will not exceed $7,000; that the total assessed valuation of all taxable property in the county is $2,197,600; and that the total indebtedness of the county does not exceed $30,000.</p> <p>The relation further states that on April 24,1888, a meeting of the board of supervisors of said county was, at the-request of a majority of the board, duly called for May 3, 1888, for the purpose of taking the necessary steps for rebuilding and repairing said bridge; that all the members of the board met accordingly, and organized; that thereupon said board, by resolution in writing passed and adopted by a vote of the majority thereof, resolved to forever close said bridge as a public highway and for public travel; chat* the remains of said bridge be donated and given to such corporation or corporations as might rebuild the same, together with all the rights, privileges, and franchises thereunto appertaining and belonging to the county, and that all resolutions, ordinances, or orders conflicting therewith, or authorizing any expenditure of money in or about such bridge, were thereby, in form, repealed and rescinded; that the board, by a majority vote, thereupon refused to lake any steps for the rebuilding of said bridge; that no petition was presented to said board signed by thirty resident freeholders of the county, nor by fifteen freeholders from each of said cities, asking the closing or discontinuance of said bridge as a public highway or otherwise.</p> <p>Upon such relation an alternative writ of mandamus was. issued to the county and to the board of supervisors, by which they were required forthwith to repair, construct, and place said bridge across said river in a safe condition for travel, or show cause to the contrary thereof.</p> <p>It appears from a return to the writ, among other things, that the portions of the bridge that remain cannot be used in building a new bridge, but must be removed if one is built in that place. The return denies that said bridge was ever a public highway, or that the public necessities require the rebuilding of said bridge or any bridge between said cities, or that the county is the only corporation authorized to bridge the river within the county, or that there is any duty devolving upon the county to bridge the river; and alleges that said cities are authorized to bridge the river; that, if a new bridge were to be built across said river between said cities, it ought not to be built at the place designated in said writ, but at a point higher up the river, upon section 8, township 22 M., of range 6 E., where the river is. free from ice gorges; that ice gorges are liable to form at the foot of the rapids where said bridge was built, and, have frequently formed there, and have threatened and endangered said bridge in former years (when it was newer, stronger, and less damaged from repeated ice gorges) more seriously than at the time -when it was swept away, April 11, 1888; that it is the belief of a majority of the board that no bridge built at that point can long withstand the ice gorges that form at the foot of said rapids; that the great majority of the people of the county have no interest in the maintenance of the bridge, and hence that the board refused to take any steps for rebuilding or repairing the bridge, and passed the resolution mentioned in the relation.</p> <p>The return admits that no petition was presented to the said board, asking that said bridge be closed or discontinued, but insists upon the board having the right to so close or discontinue without such petition; and it alleges and claims that the board had the right and discretion to decide whether any bridge across said river between said cities is needed by the people of the county or the public at large, and whether the convenience of such bridge is such as to warrant the expense; that they have the right and discretion to determine the locality where and the time when the same should be built : that the majority of the board have determined and are of the opinion that no bridge should be built there at the expense'of the county,— especially at the point designated in said writ; and that the laws of the state give the board the right and discretion to select the point where they will build such bridge.</p> <p>To such return to the alternative writ of mandamus the relators demurred on the ground that the said return does not state facts sufficient to constitute a cause why the writ prayed for should not issue or to constitute a defense to said action.</p>

Peplevin for a stock of boots and shoes in a certain store in the city of Kipon, alleged in the complaint to have been unlawfully taken by the defendant from the plaintiff on July 1, 18SG, and unjustly detained by him. The action was commenced July 2, 1886.

Garnishment. The facts are stated in the opinion. Tho plaintiff appeals from a judgment in favor of the garnishees. They contended, inter alia, that the bill of sale is void because it is a conveyance in trust for the benefit of the grantor.

EEEOE to the Circuit Court for Brown County. The case is stated in the opinion. To the point that the opinion of an expert witness must be founded upon personal experience and not upon what he has read, they cited Comm. v. Bich, 14 Gray, 335; Boyle v. State, 57 Wis. 479; State v. Klinger, 46 Mo. 228; Caleb v. State, 39 Miss. 722; Russell v. State, 53 id. 368; Luning v. State, 2 Pin. 284, 288.