Volume 73 — Wisconsin Reports

<p> Liens: Pleading: Separate contracts: Mingling causes of action: Indefiniteness. </p> <p>In an action to enforce a lien for machinery and materials furnished and labor performed, a complaint to which is annexed a copy of an agreement under which certain specified articles were to be furnished for a certain priGe, and a bill of particulars of all charges, including, as one item, the articles furnished under the specific contract, is held to be sufficiently definite and certain, although it does not state separately a cause of action for the articles furnished under the written agreement, and one for the other articles furnished and labor performed.</p>

The action is upon sixty-eight town orders, drawn in due form by the chairman of the board of supervisors and town clerk of the town of Langlade, upon the treasurer of that town, amounting in the aggregate to about $2,000; and bearing different dates between March 30, 1880, and May 14, 1881.

The case is sufficiently stated in the opinion. The defendants 8. Bryant, B. W. Pierce, and O. H. Pierce appeal from a judgment in favor of the plaintiff.

Garnishment. The principal facts are stated in the opinion. The plaintiff appeals from a judgment in favor of the garnishee.

<p> Parties: Interpleader. </p> <p>Sec. 2610, E. S. (providing that a defendant against -whom an action is pending upon a contract may apply for an order substituting in his place a person, not a party to the action, who makes against him a demarid for the same debt), does not apply to a defendant sued for the purchase price of logs to which the persons sought to be substituted claim title adverse to that of his vendor, the plaintiff.</p>

The facts will sufficiently appear from the opinion. The plaintiff had a verdict for.$700, and from the judgment thereon the defendant appeals.

The plaintiff is an attorney at law, and brings this action to recover compensation for professional services rendered by him for the defendant under the following circumstances : In 1872 the defendant commenced an action against one Phillips in the circuit court, and in 1878 recovered judgment therein. An execution on the judgment was issued in 1874, by virtue of which certain lands were sold b}*- the sheriff and bid in by Boot for the amount of the judgment.

The case is sufficiently stated in the opinion. The defendants appeal from a judgment in favor of the plaintiffs. To the point that a positive statement of fact, made without knowing it to be true, is fraudulent, they cited, besides cases cited in the opinion: Hay craft v. Creasy, 2 East, 103; Pawson v. Watson, Cowp.

The following statement of the case was prepared by Mr. Justice Cassoday: The complaint is, in effect, upon a promissory note bearing date January 20, 1886, made by the defendant 'Williamson, and indorsed at the same time by the appellant, Gornelia J. Hawes, for $7,000, due one year after date, with interest at eight per cent., and which note was duly presented for payment at the maturity thereof, but the same was not paid, and was thereupon protested for nonpayment, and the…

Action for the dissolution of a partnership and for an accounting. The facts will sufficiently appear from the opinion. Both parties appeal from the judgment. They argued, among other things, that the defendant should have been charged with interest on the sum of money which he had in his hands belonging to the firm from the day they ceased to do business to the date of the report of the referee. Crabtree v. Randall, 133 Mass. 552; Gridley v. Conner, 2 La.

The facts are sufficiently stated in the opinion. to the point that mental suffering, cruel and wicked words, and threats of personal violence are a sufficient cause for divorce within the meaning of our statute, and that actual personal violence need not be shown, cited Freeman v. Freeman, 31 Wis. 235, 218-50; Pillar v. Pillar, 22 id. 658; Wheeler v. Wheeler, 53 Iowa, 511; Warner v. Warner, 54 Mich. 492; Berryman v. Berryman, 59 id. 605; Whitmore v. Whitmore, 49 id. 417;…

<p> Limitation of actions: Pleading: When cause of action accrued. </p> <p>A complaint alleging that between September 1 and December 1, 1873, the plaintiff rendered services for the defendant which were reasonably worth $4,000, “which sum became due some time in September, 1884,” is held, on demurrer, to show that the cause of action accrued as early as December 1, 1873. The allegation that the sum became due in 1884 is a mere conclusion of law, unsupported by the facts stated, and must be disregarded.</p>

<p> Voluntary assignment: Partnership doing business in names of individual partners: Fraud: Reservations of homesteads and personal property as exempt. </p> <p>1. The business of a copartnership may be transacted without the use of a firm name, and it may be agreed that the names of the individual partners or any one or more of them shall be used and bind the firm.</p> <p>2. A voluntary assignment by a firm doing business in the names of the individual partners, treating all their property as firm property and all debts as firm debts, is not fraudulent as to creditors although they did not know of the copartnership.</p> <p>3. The reservation of the homesteads of partners in an assignment by the firm does not render such assignment void.</p> <p>4. In an assignment by a firm a reservation to each partner of personal property (specifically described in the inventory) claimed to be exempt from execution, and which had, by prior agreement, been allotted to each in severalty and actually separated from the partnership assets, does not invalidate the assignment.</p>

<p>APPEAL from the Circuit Court for Rook, County.</p> <p>The case is stated in the opinion.</p> <p>to the point that the attestation clause at best raised a mere presumption of the due execution of the will, and that there should be positive evidence of that fact, cited Swell v. Boarclman, 1 Mass. 258; Dewey v. Dewey, 1 Met. 349; Bogan v. Gros-venor, 10 id. 54; Bxvtler v. Benson, 1 Barb. 527, 534-5; Abbey v. Christy, 49 id. 276; In re Will of Van Geison, 47 Hun, 5; Downie’s Will, 42 "Wis. 66.</p>

<p>APPEAL from the Circuit Court for Dodge County.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>contended, inter alia, that the provision made in the original judgment for the plaintiff is alimony to her, which is subject to modification and revision at any time by the court. Blahe v. Blalee, 68 "Wis. 303; Goad v. Goad, 41 id. 23; Thomas v. Thomas, id. 229; Williams v. Williams, 29 id. 517. The fact that, by the original judgment, the plaintiff was ordered to pay the defendant $12 annually until further order, shows that there was no final division and distribution of the estate. This $42 was the annual interest on $600 which the court found the defendant w?as entitled to in the real estate, and the $42 was made a lien on the real estate.</p>

<p>Evidence: Deeds. (1) Probate of will: Death of testator: Final decree. (%) Sheriff’s deed. (8) Description in deed: Certainty.</p> <p>1. The final judgment or decree of a county court, construing a will, assigning the real estate of which the testator died seized, and settling his estate, recited, among, other things, that the wife of the testator had died since his decease. Held, in an action of ejectment affecting a part of the real estate devised, that it sufficiently appears from such a decree that the testator and his widow had previously died, and that the will had been admitted to probate.</p> <p>2. Under sec. 4154, E. S., a sheriff’s deed of land is presumptive evidence that the title, estate, or interest which it purports to convey, of every person whom it purports to affect, passed to and vested in the grantee, without proof of the judgment upon which the execution issued by virtue of which the sheriff sold the land.</p> <p>3. A deed purporting to convey “ the southeast corner ” of a certain quarter-section of land, and “ the southwest fractional part of the north half ” of another quarter-section, without more definite description as to dimensions, quantity, or location, is void for uncertainty.</p>

Action to recover damages for injuries alleged to have been sustained by reason of a defective sidewalk in one of the public streets of the defendant city.

Action upon a contract for insurance against fire. The facts are staled in the opinion. At the close of the testimony the trial court directed the jury to find a verdict for the plaintiff. From the judgment entered on the verdict so found the defendant appealed. They contended, inter alia., that there was no valid agreement to insure, no contract inprcesenti.

<p> (1) Payment: Conflict of testimony: Appeal. Mortgages: Foreclosure: Attorney’s fees: Excessive allowance: Remission. </p> <p>1. The testimony of the parties being in direct conflict as to whether a certain payment was made upon a mortgage debt, and there being no other evidence on the subject, this court will not disturb the finding of the referee and trial court disallowing such payment.</p> <p>2. In a judgment of foreclosure the court allowed as attorney’s fees a sum greater than that stipulated in the mortgage, but before appeal the plaintiff remitted the excess, giving notice thereof to the defendants. Held, that the error was cured.</p>

The following statement of the case was prepared by Mr. Justice Tatloe as a part of the opinion: The plaintiff brought this action in the circuit court, for the purpose of perpetually enjoining the sale of certain real estate, owned by him, upon an execution issued upon a judgment in favor of the defendants’ testator, Elijah Gove, deceased, against one Benjamin Boorman, and to have the court adjudge that such judgment was not a lien upon said real estate.

The case is stated in the opinion. The affidavit therein referred to, upon which the respondents based their motion to set aside the decision of the circuit court reversing the order of the county court, and to reinstate the appeal in the circuit court, was made by one of the respondents’ attorneys, and was to the effect that the said attorneys, a Milwaukee firm, requested the clerk of the circuit court by letter, when they sent the notice of trial to him to be filed, “ to…

APPEAR from the Circuit Court for Washington County. The following statement of the case was prepared by Mr. Justice Cassoday: This is an action of slander.

Ejectment. The cause was before this court on a former appeal, when a judgment in favor of the plaintiff was reversed. 69 Wis. 292. Upon the second trial the court directed a verdict in favor of the defendant; and from the judgment entered thereon the plaintiff appeals. The facts will sufficiently appear from the report of the former appeal and from the opinion herein.

APPEALS from the Circuit Court for Ozaule.ee County. The respondent, William, H. Landolt, commenced an action against one James W. Yail, on January 16, 1888, alleging in his complaint that the plaintiff and defendant were copartners, doing business as bankers at the city of Port Washington, in this state, under the firm name of James W. Yail & Co.; that they both desired a dissolution of such copartnership; that there were large assets belonging thereto, and a large number…

The following statement of the case was prepared by Mr. Justice TayloR as a part of the opinion: This is an action for personal injury to the plaintiff, alleged to have been caused by the negligence of the railway company. The material facts in the case are as follows: On the evening of the 4th of March, 1886, the respondent and a Mrs. Kreuziger took passage, in the caboose of a freight train, from Juneau to Minnesota Junction. The junction is north of Juneau.

Action to recover damages for injuries to the person of the plaintiff, alleged to have been caused by the wrongful acts and negligence of the defendant’s servants. The facts will sufficiently appear from the opinion. There was a special verdict finding the facts in favor of the plaintiff and assessing her damages at $1,100. Prom the judgment entered thereon the defendant appeals.

<p> Railroads: Negligence: Fire set by engine: Evidence of other fires sel by other engines. </p> <p>In an action for the negligent burning of a building alleged to have been fired by sparks from a locomotive, the testimony of defendant’s inspector that the screen on the engine was the same as on the defendant’s other engines does not entitle the plaintiff to show in rebuttal that other fires had been set by the other engines.</p> <p>See note to this case in 40 N. W. Rep. 685.— Rep.</p>

<p> (1) Practice: Special verdict: Inconsistent findings: Directing jury to consult further: Polling the jury. (8, 8) Railroads: Round-trip tickets: Accidental separation of parts: Wrongful ejection of passenger: Damages. </p> <p>1. Where the findings of a special verdict upon the subject of damages are inconsistent and manifestly made under a misapprehension of the instructions, the court may decline to receive the verdict and, after explaining the instructions previously given, direct the jury to retire l'or further consultation; and a request that the jury be polled before they so retire may be denied.</p> <p>2. A round-trip railroad ticket, punctured for separation into two parts, and having on the “going” part the words “Not good for passage,” and, ,on aline therewith, on the “returning” part the words “ if detached,” is nevertheless good for passage where the parts have become separated by accident, if both parts are in good faith presented to the conductor on the outward trip.</p> <p>3. A verdict for $299.64 damages for injury to the feelings of a passenger wrongfully ejected from a railroad train and called a liar by the conductor, is held not excessive.</p> <p>See note to this case in 40 N. W. Rep. 693.— Rep.</p>

The facts will sufficiently appear from the opinion. To the point that defendants’ prescriptive right to maintain a vault under plaintiff’s lot gave them no right to claim the lot above it or to exclude plaintiff from its possession, counsel for the respondent cited 1 Washb. Real Prop. (3d ed.), 12; 3 id. 338-40; Oaldwell v. Fulton, 31 Pa. St. 475, 72 Am. Dec. 760, and note; Hartwell v. Oamman, 10 N. J. Eq. 128, 64 Am. Dec. 448, and note; MoOlintoch v. Bryden, 63 Am.

APPEALS from the County Court of Dodge County. The following statement of the case was prepared by Mr. Justice Oassoday: This action was commenced in the county court of Dodge county by the service of summons and complaint, and personal property of the defendant to the amount of $690 was attached, August 23,1887. An answer was served October 5, 1887.

<p> Wqitity: Cancellation of deed: Incapacity of grantor: Fraud: Inadequate consideration. </p> <p>A judgment setting aside a conveyance of land from the plaintiff to the defendants is affirmed, the evidence being held to sustain the findings of the trial court that the plaintiff was a woman about seventy-five years old and unable, by reason of ignorance and mental weakness, to make a sale of her land or to comprehend the effect of such a sale, and that the defendants, upon whose counsel and advice she was accustomed to depend, took advantage of her ignorance and weakness of mind to obtain such conveyance for a grossly inadequate consideration.</p> <p>See note to this case m 41 N. W. Rep. 69.— Rep.</p>

<p>APPEAL from the County Court of Dodge County.</p> <p>Action for a trespass to land. The facts affecting this appeal will sufficiently appear from the opinion.</p>

Action to recover damages for personal injuries, alleged to have been caused by defendant’s negligence. The facts will sufficiently appear from the opinion. The jury found a special verdict to the effect that the defendant was not guilty of any negligence with respect to the condition of the engine in question. A motion for a new trial was denied, and from the judgment entered on the verdict-in favor of the defendant the plaintiff appeals.

Action on a policy of insurance. Plaintiff held a mortgage on certain “real estate of M. A. Yoi’k & Co., a firm consisting of Mrs. M. A. York and her husband, Solomon. The mortgage was given by that firm to secure an indebtedness of $2,000, which still remains unpaid. The principal value of the mortgaged premises was in a saw-mill situated thereon, and certain machinery and fixtures therein.

Mandamus to compel the state treasurer to apply certain moneys paid into the state treasury by the St. Cloud, Grants burg & Ashland Railway Company, upon the certificate of indebtedness issued by the relator pursuant to sec. 9, ch. 172, Laws of 1888. The respondent moved to quash the alternative writ.

<p>APPEAL from the Circuit Court for Juneau County.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>They cited Lcmer v. Bandow, 43 Wis. 556, 561; Engfer v. Boemer, II id. 11; Smith v. Gill, 31 Minn. 455; Jones v. Walker, 63 N. T. 612; Fullerton lumber Go. v. Osborn, 72 Iowa, 472; Flannery v. Bohrrnayer, 46 Oonn. 558; Gilman v. Disbrow, 45 id. 563.</p>

The case is sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. to the point that it is for the court and not for the jury to say whether, under the evidence, a particular locality is depot grounds or not, cited Pierce on Railroads, 30; Illinois dent. It. Co. v. Wha-len, 42 Ill. 396; Chicago & Q. T. It. Co. v. Campbell, 47 Mich. 265; Flmt de P. M. P. Co. v. lull, 28 id. 511; McGrath v. D. M. & M. It. Co. 57 Mich. 555.

The case is stated in the opinion. They contended, inter alia, that the court will determine in limine what the specific cause of action relied upon in each count is, and in doing so will and must look not only to the averments of the count but also to the prayer for relief and to the general frame-work of the pleading. Kewaunee Co. v. Declter, 30 Wis. 624-630; Oil-lett v. Treganza, 13 id. 472; Hammond v. Mich. State Banh, Walker Ok. 214.

The case is stated in the opinion. They contended, inter alia, (1) that the statute under which this lien claim is to be enforced is unconstitutional and void for failure to make any sufficient provision for the protection of the owner of the logs, giving him reasonable notice of the proceedings and opportunity to be heard. Reilly v. Stephenson, 62 Mich. 509; Jones on Liens, sec. 723.

<p>APPEAL from the Circuit Court for Oliippewa County.</p> <p>Action to have the plaintiff’s claim to certain lands established, and to have the defendants enjoined and debarred from asserting their adverse claims thereto. The complaint alleges that the plaintiff is the owner and in possession of said lands. The convejmnces constituting the plaintiff’s chain of title are then set forth. One of such conveyances is*'a quitclaim deed to the defendant Mary Allen, executed August 8, 1866, but not witnessed or acknowledged or recorded. The complaint shows that after the execution and delivery of such deed to said Mary Allen, she and her husband gave a mortgage of the premises; that such mortgage was foreclosed; and that the plaintiff holds the title under mesne conveyances from the purchaser at the foreclosure sale.</p> <p>The complaint further shows that the defendants Stanley and Kehl claim to own portions of said lands under and by virtue of conveyances executed subsequent to said quitclaim deed of August 8,1866,'but by the same grantors, and that said defendants each well knew that his grantors had no interest or ownership in the land at the time their conveyances were executed. Other facts will sufficiently appear from the opinion.</p> <p>The defendants each demurred separate!y to the complaint on the grounds that several causes of action are improperly joined and that it does not state facts sufficient to constitute a cause of action. From an order overruling the demurrers the defendants appeal.</p> <p>They contended, inter alia, that a deed not sufficiently witnessed is inoperative to pass the legal title. Doe v. Doe, 37 FT. II. 276. The law was the same at the time of the making of the deed, with reference to witnesses, as now. “ All conveyances executed within this state of lands or anv interest in lands therein, shall be executed in the presence of two witnesses, who shall subscribe their names to the same as such.” B. S. sec. 2210. A deed must be executed in the form and with those solemnities prescribed by the law where the land is situated, in order to have any validity. 1 Nat. Law Beview, 292-4; Gantu v. Bennett, 39 Tex. 303; Warrender v. Warrender, 9 Bligh, 127-8; 2 Dwar. on Stat. 648; Story on Confl. of Laws, sec. 351c?, 364; 2 Wait’s Act. & Def. 506; Orame v. Reeder, 21 Mich. 26; 3 Washb. on Beal Prop. (4th ed.), 238; McLaughlin v. Randall, 66 Me. 226. Several causes of action are improperly united. Mrs. Allen's claim is entirely separate and distinct from the claim of her co-defendants. The interest of each of the defendants is several and not joint. See B. S. sec. 2647; Bliss on Code PI. sec. 123; Hubbell v. Revolt, 58 N. T. 237; Pomeroy on Bern. sec. 483.</p> <p>To the point that attestation was not essential to the validity of a deed as between the parties, they cited, besides cases cited in the opinion, 1 Devlin on Deeds, secs. 255,464-5; Hole v. Thurlow, 12 Met. 157-166; Kingsley v. Holbroole, 45 N. IL. 320; Fitzhugh v. Oroghan, 2 J. J. Marsh. 429; Price v. Haynes, 37 Mich. 489; Rieles v. Reed, 19 Oal. 551-576; Hepburn v. Dubois, 12 Pet. 375; Morton v. Leland, 27 Minn. 35.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The plaintif was one of four heirs of a brother who died intestate in the state of Indiana. The estate of such deceased brother was settled in the proper court, and the plaintiff’s share thereof, awarded to him by the court, was $97.23. Plaintiff and another heir gave the defendant a power of attorney, in the usual form, to collect their respective shares. The instrument is silent as to the compensation the defendant should receive for his services. He collected the money, but refused to pay over to the plaintiff his share thereof. The plaintiff brought this action in a justice’s court to recover his share. The case was appealed to the county court, and afterwards the place of trial was changed to the circuit court.</p> <p>The defendant answered in abatement the non-joinder as party of the heir who joined with the plaintiff in the power of attorney; and also in bar of the action that the contract between the parties in the suit was that the defendant should “ keep the plaintiff and the other party so empowering to make said collection free and harmless of any and all expense accruing out of said collection, in consideration of which they waived and ceded any and all of their claim to said inheritance to this defendant. In pursuance of said agreement defendant undertook and went and collected the same at his own expense and time.” The defendant answered, further, that his expenses in making the collection, including the value of the time spent therein, greatly exceeded the sum collected.</p> <p>On the trial the circuit court found against the defendant on the plea in abatement, and also ruled out testimonj' offered by him to prove the special contract alleged in the answer, that the defendant was to have the whole sum collected by him. The jury were instructed that the plaintiff was entitled to a verdict for the amount collected for him by the defendant, less reasonable compensation for collecting the same. A further statement of the charge will be found in the opinion. The jury allowed the defendant ten per cent, on the amount collected as compensation for his services, and returned a verdict for the plaintiff for the balance of the $97.23, and interest thereon from the date , the money was demanded of the defendant by plaintiff’s attorney. A motion for a new trial was denied, and judgment rendered for the plaintiff pursuant to the verdict. The defendant appeals from the judgment.</p>

<p>EEEOE to the Municipal Court of Milwaukee County.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>ERROR to the Circuit Court for Jaekson County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>It appeal’s from the record that January 21, 1886, the accused was arrested in the town of Alma, in Jackson county, upon a warrant issued on that day by a justice of the peace in said town, reciting the complaint, which was on oath, to the effect that said accused did January 20, 1886, at said town, “ unlawfully sell, and for the purpose of evading the law give away, spirituous, malt, ardent, intoxicating liquors and drinks, not to be drank on the premises, without having obtained a license or permit therefor; ” that, upon being brought before said justice, the said accused was tried and found guilty, and fined $50 and costs of suit, and committed until paid; that thereupon said accused appealed to the circuit court, giving an undertaking thereon; that upon a retrial in the circuit court, September 29, 1887, the said accused was found guilty by the jury, and judgment thereupon entered accordingly for such fine and costs, and that in default of the payment thereof he was to be committed to jail for a term not exceeding six months; and it was therein further ordered that the state have judgment to recover from said accused and his surety the sum of $147.63, being the amount of such fine and costs: To review that judgment the accused has sued out a writ of error.</p> <p>contended, inter alia, that no undertaking on appeal having been given as required by the statute (sec. 4714, E. S.) the appearance of the accused in the circuit court was purely voluntary, and no judgment could be rendered against the surety on the undertaking given. Eo other or further judgment could properly be rendered against the accused or the accused and his surety than for the penalty specified in sec. 4, ch. 296, Laws of 1885. The judgment in this case is double — against the accused under said section last mentioned, and against the accused and his surety under sec. 4717, E. S. This is clearly unauthorized.</p> <p>The complaint is sufficient. Allen v. State, 5 Wis. 329; State, v. Downer, 21 id. 274; State v. Tall, 56 id. 577. The accused is in no way prejudiced by the judgment upon the undertaking against his surety. The judgment against the accused would be just as effectual if no undertaking had ever been given. The surety has not appealed to this court, and must be presumed to be satisfied with the judgment. Williams v. Starr, 5 Wis. 534-547; Palmer v. Yager, 20 id. 97; Kopmeier v. Larkin, 47 id. 598; 4 Wait’s Pr. 234; Montgomery Co. Bank v. Albany City Bank, 7 E. Y. 459. The judgment, though single in form, is in legal effect separate as to the accused and the surety. State v. Brady, 62 Wis. 129.</p>

<p> Religious societies: Trusts and trustees: Deeds: Perpetuities: Corporations: Officers: Ouster: Equity: Perversion of trust: Dismissal of minister: Withdrawal from synod: Change of faith. </p> <p>1. The fact that a religious society, to whose trustees land was conveyed in trust for the erection thereon of a church, had not been incorporated when the deed was delivered, did not invalidate the trust.</p> <p>2. The deed in such case vested the legal title in the trustees, and upon the subsequent incorporation of the society such legal title became vested in the corporation, subject to the trust.</p> <p>3. The designation of the beneficiaries of a trust as the members of a certain church is sufficiently definite and certain, under subd'. 5, sec. 11, ch. 57, E. S. 1849 (subd. 5, sec. 2081, E. S.).</p> <p>4. Although sec. 1, ch. 57, E. S. 1849 (sec. 2071, E. S.), declares that trusts, except as authorized and modified in that chapter, are abolished, this was not intended to prohibit the trusts expressly authorized by ch. 47, E. S. 1849 (sec. 2000, E. S.), relating to religious societies.</p> <p>5. A conveyance of land to the trustees of a religious society and their successors in office forever, in trust for the erection thereon of a church building for the use of the members of the society, did not suspend the power of alienation, -within the meaning of secs. 14, 15, ch. 56, E. S. 1849 (secs. 2038, 2039, E. S.), such trustees being “persons in being by whom an absolute fee in possession could be conveyed” in the manner prescribed by law.</p> <p>6. A religious society incorporated under the laws of this state is a civil corporation, governed by the statutes and such rules of the common law as may be applicable. The trustees are officers of the corporation, and before an equitable action can be maintained by members of the society, some of whom claim to be the rightful trustees, to recover possession and control of the property by ousting those who have been in the continuous possession and control thereof claiming to be such trustees, and by enjoining them from acting as such, the plaintiffs who claim to be the trustees must have been peaceably admitted to such offices or have established their title thereto by some direct action or proceeding, as by quo warranto.</p> <p>7. The dismissal of one minister and the employment of another is a matter pertaining to the temporalities of a church, and does not necessarily operate as a change of faith or doctrine. When done by the majority of a religious society in accordance with the statute and the constitution and by-laws of the society, it does not operate as a wrongful exclusion of the minority who adhere to the former minister.</p> <p>8. Land was conveyed in trust for the erection thereon of a church building for the use of the members of a certain church “ according to the rules of said church, and according to the rules of said church’’which might thereafter “ be adopted from time to time by their authorized synods.” The synod to which the church was attached was a mere confederation of local self-governing churches, acting, so far as the local organization was concerned, merely as an advisory body. Held, that the mere withdrawal of the church from such synod was not a violation or perversion of the trust.</p> <p>9. Land was conveyed to trustees in trust for the erection thereon of a church building “for the use of the members of the Norwegian Evangelical Church of St. Paul’s on Liberty Prairie, according to the rules of said church,” etc. The grant was, presumably, made ' with reference to the articles of faith previously adopted by said church. The church was subsequently incorporated, the certificate of incorporation simply giving the name of the church. Held, that the trustees and officers of the corporation could not lawfully devote the church building to purposes other than those specified in the grant.</p> <p>10.It is not the province of courts of equity to determine mere questions of faith, doctrine, or schism, not necessarily involved in the enforcement of an ascertained trust. To call for equitable interference there must be such a real and substantial departure from the designated faith or doctrine as will be in contravention of such trust.</p> <p>11. Where the adoption of certain articles of faith by the majority of a religious society is claimed by the minority to be such a departure from the faith referred to in a trust deed as to result in a perversion of the use of the property granted, the fact that such minority remained united with the majority for more than two years after the adoption of such articles, constitutes an additional reason why, in the absence of a clearly established violation of the trust, a court of equity should not interfere. And the fact that before suit was brought the majority repealed such articles and substantially reaffirmed those previously adopted, is still another reason why the action should not be maintained.</p>

<p>APPEAL from the Circuit Court for Oneida County.</p> <p>The case is sufficiently stated in the opinion.</p> <p>contended, inter alia, that ch. 292, Laws of 1883, is in violation of sec. 3, art. XI, Const., which provides that “it shall be the duty of the legislature, and they are empowered, to provide for the organization of cities and incorporated villages,” etc. If a community is in need of corporate functions,, it is the duty of the legislature to incorporate it. It cannot grant corporate powers without corporation. The act is also in violation of the constitutional principle which prohibits unequal and partial legislation upon general subjects. Durltee v. Janes-ville, 28 Wis. 465; People v. Salem, 20 Mich. 473. It is also in violation of sec. 23, art. IY, of the constitution, which provides that “the legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.” State ex rel. Peelt v. Riordan, 24 Wis. 488 ; State ex rel. Keenan v. Milwaukee Go. 25 id. 346; MeRae v. Kogan, 39 id. 529; State ex rel.Walsh v. Kousman, 28 id. 541. It also violates the provisions of sec. 13, art. I, of the constitution, which provides that “ the property of no person shall be taken for public use without just compensation therefor.” Buell v. Ball, 20 Iowa, 288; Beiman v. Ft. Madison, 30 id. 542; Brooks v. Polk Ob. 52 id. 460; Durant v. Kauffman, 34 id. 194; Smith v. Sherry, 50 Wis. 216; Borough of Little Meadows, 35 Pa. St. 335.</p> <p>The following opinion was filed November 8, 1888:</p>

<p>APPEAL from the Circuit Court for Walworth County.</p> <p>The case is stated in the opinion.</p> <p>1. The board of review, on June 26, 1888, adjourned for more than one day, and no written notice thereof was posted on the outer door of the village clerk’s office, stating to what time said meeting was adjourned, as required by ch. 71, Laws of 1881, amending sec. 1060, R. S. 2. The action of the board of review is not supported by the evidence. 3. The relator’s statement under oath, having been .duly made pursuant to the statute, conclusively determines .the-valuation and amount of his personal property for which . the assessment should be made. State ex rel. Ward v. Assessors, 1 Wis. 345; Matheson v. Mazomanie, 20 id. 191; ■ White-v. Appleton, 22 id. 639; Ketchwm v. Mulewa, 24 id. 303; Wauwatosa v. Gtonyon, 25 id. 271; Phillips v. Stevens Point, id. 594; Lawrence v. Janesville, 46 id. 364. By sec. 10(51, E. S., it is made the duty of the board of review to review and correct errors made by the assessor. They are also expressly authorized to raise or lower valuations made by the assessor — but not any other valuations. They are directly commanded by sec. 1056 to make the assessment of “ item 15 ” for the amount as determined by the tax-payer’s sworn statement.</p>

<p>Taxation. ■ (1) Village of Ellcliorn: Board of review- how constituted. (2) Excusing assessor from voting. (8J Taxable property: Notes, mortgages, ete., in another state.</p> <p>1. By statute the inhabitants of the town of Elkhorn were incorporated as the village of Elkhorn, and it was provided that the elective officers of the village (including three supervisors, one assessor, and one clerk) should severally have and exercise all the powers and perforin all the duties “ prescribed by statute in reference to said several designated officers in the several towns of this state.” At that time assessors were the only officers authorized to review assessments, but subsequently boards of review were provided for, which (under sec. 1060, R. S., as amended by ch. 74, Laws of 1881) consisted in towns of the supervisors, clerk, and assessors, and in villages in which taxes were assessed and collected independently consisted of the president, clerk, and assessors. Held, that it was the intention of the act incorporating the village of Elkhorn that the officers of such village should have the powers and perform the duties then prescribed by statute in reference to similar officers in towns, and also such powers and duties as should at any time subsequently be prescribed in reference to such toion officers; and hence that the board of review in that village should be constituted as such boards are Constituted in towns, and not as they áre constituted in other villages.</p> <p>2. A quorum being present and voting, the fact that an assessor was excused from voting does not invalidate the action of a board of review.</p> <p>3. Moneys, and notes secured by mortgages of land in another state, in the hands of an agent in that state to be loaned, collected, and reloaned, but belonging to a resident of this state, are “property in this state ” (sec. 1034, R. S.) and taxable here.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>Action to recover the sum of $6,000, being the purchase price of land conveyed to the defendant pursuant to an oral contract of sale. The defendant purchased the land of the plaintiff’s agent, McDermott, at Ashland on March 25, 1887, and under his instructions a deed, together with drafts of notes and a mortgage to be given for deferred payments, was sent to him at Milwaukee on the day of sale, upon the receipt of which he was to forward to McDermott his draft for $1,500, and execute and return the notes and .mortgage. The defendant received the deed, notes, and mortgage at Milwaukee on March 29. After the receipt of the deed, and on the same day, he telegraphed to McDer-mott: “Sell those lots to-day, if possible, at two hundred to two fifty. I go up to-night; ” and on the following day he telegraphed: “Could not leave last-night. If not already sold, sell to-day at best you can over cost.” On March 31 the defendant -went to Ashland and told McDer-mott that he would not accept the deed, and left if in McDermott’s office, though the latter refused to receive it. 'The court found that the defendant accepted the deed, and that the plaintiff was entitled to recover the purchase price. From a judgment entered accordingly the defendant appeals.</p> <p>They contended, inter alia, that no recovery could be had in this action because it was brought for the breach of an alleged parol contract, absolutely void in not complying with the requirements of sec. 2301, R. S. Brandéis v. Neustadtl, 13 Wis. 142; Popj) v. Swanlce, 68 id. 364, 368; CJlarTee v. Lincoln L. Go. 59 Wis. 665; Hooker v. Knab, 26 id. 511. It cannot be said that the deed takes the place of and evidences the contract. It contains none of the stipulations, part and parcel of the alleged contract, nothing as to the manner and time of payment, nothing as to the securities to be given. Thomas v. Sowards, 25 Wis. 631-6; Campbell v. Thomas, 42 id. 441; Popp v. Swanlce, 68 id. 364. There was no delivery or acceptance of the deed, and therefore defendant had a right to repose upon the statute and repudiate the transaction. Miller v. Pelletier, 4 Edw. Ch. 106; Brandéis v. Neustadtl, 13 Wis. 158; Little v. Needham, 39 Mich. 147; Cooper v. Jackson, 4 Wis. 547j Sol; Fonda v. Sage, 46 Earb. 109. If there had ■been a delivery and acceptance of the deed, and a consequent transfer of title, there could be no recovery of damages pursuant to the contract, because “ it cannot for any purpose be considered as ever having had an existence.” Brandéis v. Neustadtl, supra; 2 Pomeroy’s Eq. Jur. s.ec. ■964. It cannot be said that the contract to pay might rest in parol and be separated from that to convoy — that one was legal and the other illegal,— for the contract to pay would be without consideration if the contract to convey were void. Little v. Needham, 39 Mich. 149; Griswold v. Messenger, 6 Pick. 517; Flint v. Sheldon, 13 Mass. 448. If there had been an oral promise to pay monpresently in consideration of land sold and conveyed, an action would lie to enforce the same. Basford v. Pearson, 9 Allen, 390. But a parol contract containing other terms than for the immediate payment of the entire purchase money, cannot be shown. If the deed had been delivered and accepted the grantor might recover, on proper pleadings, what the land was reasonably worth. But in that case evidence as to the value of the land must be admitted.</p> <p>To the point that the action could be maintained, they cited Alger v. Scoville, 1 Gray, 394; Trowbridge v. Wetherbee, 11 Allen, 364; Bowen v. Bell, 20 Johns. 338; Pomeroy v. Win ship, 12 Mass. 514-523; Brackett v. Evans, 1 Cush. 79-82; LinscoU v. Mcln-tire, 15 Me. 203; Thayer v. Viles, 23 Yt. 494-; Wolfe v. Mauver, 1 Gill, 84; Thomas v. Dickinson, 12 N. Y. 304; Michael v. Foil, 100 N. 0. 178; Holland v. Hoyt, 14 Mich. 242; Green v. Batson, 71 Wis. 57-58. The measure of damages is the stipulated price and interest. 3 Parsons on Cont. (7th ed.), 208-210; Goodpaster v. Porter, 11 Iowa, ,161; Shawhan v. Van Nest, 25 Ohio St. 490; Van ValJeen-burg v. Groff at, 15 Hun, 147; Thomas v. Dickinson, 12 N. Y. 364; 'Haskell v. Hunter, 23 Mich. 305; Chapman v. Ingram, 30 Wis. 290; Crawford v.Earl, 38 Wis. 312; Taft v. Wildman, 15 Ohio, 123; Evans v. C. c& R. I. R. Co. 26 Ill. 189; Saladin v. Mitchell, 45 id. 79; Old Colony R. Corp. v. Evans, 6 Gray, 34.</p>

<p>Negotiable Instruments. (1) Liability of indorsers: Statutes of another state: Judicial notice: Demurrer. (2) Uncertainty in amount and time of payment: Collateral securities.</p> <p>1. In an action against the indorsers of an instrument for the payment of money, made and payable in another state, the court will not, on demurrer, take judicial notice of laws of that state relating to the liability of indorsers, which have not been pleaded.</p> <p>2. A written instrument for the payment of a specified sum of money at a time specified, is rendered non-ncgoliable by an alternative contract therein that the payee may sell the collateral securities mentioned therein, and, if these decline in value, may sell them before the money for which the instrument was given would otherwise become due, in which case the proceeds of the sale, less the expenses thereof, shall be applied in payment or part payment of the debt, and if a deficiency remains the amount thereof shall become due forthwith.</p> <p>See note to this ease in 41 N. W. Rep. 409.— Rep.</p>

<p>Pleading. (1) Striking out demurrer as frivolous: When order reversed. (2) Money had and received: Action, tort or contract f Conversion.</p> <p>1. The rule that an order striking out as frivolous a demurrer to the complaint and allowing the defendant to answer upon the usual terms will not he reversed unless the demurrer was well taken, adhered to.</p> <p>2. A complaint shows that property was consigned in the name of one H. to the defendant to be sold, but that H. was not the owner or entitled to the proceeds thereof, and that the plaintiff was entitled to such proceeds; that the defendant sold the property for $824.15 above all expenses; that before receiving or selling said pi-operty the defendant had full notice of plaintiff’s right to the proceeds or value thereof, and plaintiff duly demanded of him such value before the receipt or sale thereof by the defendant, but, notwithstanding this, the defendant unlawfully converted to his own use the aforesaid value of the property, to wit, $824.15, and 'refused and still refuses to pay or account to the plaintiff therefor, though due demand has been made. Judgment is demanded for said sum of $824.15, with interest from the date of the sale. Meld:</p> <p>(1) The facts stated are sufficient to entitle'the plaintiff to recover.</p> <p>(2) The action is upon contract for 'money had and received. The allegation of a conversion does not, in view of the other allegations, render it a tort action.</p>

<p>CARRIERS. ("1) Liability of carrier for loss beyond its oum lines: Special contract: Receipt. (2) Agency: Proof of authority to malte contract.</p> <p>1. An agent of the defendant company gave a, receipt for goods shipped in the following form: “ Milwaukee-188-. — Shipped by Roundy, Peckham & Co. the following articles, in good order, to be delivered in like good order, as addressed, without unnecessary delay.— Consigned to Hansen & Kirsh, Onekama, Mich.” On the face of the receipt the agent stamped and wrote: “F. & P. M. R. R. Co.— Rec’d. Nov. 2, 1887.— By agent, P., Milwaukee.” Held, that this imported a contract to carry the goods through to Onekama, and that defendant’s liability did not cease on the delivery of the same, at the end of its line, to a connecting carrier.</p> <p>2. Express authority of the agent to make such contract need not be shown, he having acted as such agent in the proper place for receiving goods for the company, and having been in possession of the company’s stamp to be used on such receipts, and the company having taken possession of the goods and caused them to be shipped, presumably with knowledge of the receipt.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassodáy:</p> <p>It appears from the record, in effect, that May 20, 1887, Joseph 8. Mabbett filed his petition in the circuit court for a discharge from all his debts as an insolvent debtor, with the ordinary affidavit, under and in pursuance of ch. 179, R. S., and the several acts amendatory thereof ; that he alleges generally and in detail that the petition and affidavit conformed in every respect to said statutes; that the schedules annexed showed a total indebtedness of $49,682.43; and property consisting only of household goods and furniture, household stores, wearing apparel, and ornaments of the person, valued at $1,700, and books, prints, and pictures, valued at $250 (all mortgaged to one Waldron, March 15, 1875, to secure a debt of $5,455.44, owing him from Mabbett), and no other personal property, and no real estate, choses in action, debts due, or moneys belonging to him. On the hearing of the order to show cause why such discharge should not be granted, certain of his creditors filed their objections, and specified for the grounds thereof that the petitioner had failed to schedule property not exempt; and thereupon the court ordered the trial of such issue. It appeared from the evidence that Mabbett had a homestead in the city of Milwaukee, April 15, 1878, consisting of a lot and a half; that on that day he deeded it, through a third person, to his wife; that April 25, 1878, he borrowed $10,000, and his wife gave a mortgage on such homestead to secure it; that the homestead contained feet front, and 127 feet back, in excess of one fourth of an acre, valued at $637.50. At the close of the testimony the court withdrew the cause from the jury, and by order dismissed the petition. Erom that order the petitioner appeals.</p>

<p> Debtor and creditor: Chattel mortgages: Delay in filing: Estoppel:-Garnishment: Failure to prove issuance of execution: Appeal. </p> <p>1. When the mortgagee of chattels delays the filing of his mortgage at the request of the mortgagor and in order that the credit of the-latter may not be injured, he is estopped to assert such mortgage as against creditors who, after the execution of the mortgage and before its filing, gave credit to the mortgagor upon the faith that his property was unincumbered; and this is so although the mortgagee had no actual intent to defraud any creditor. Standard Paper Co. v. Guenther, 67 Wis. 101, followed.</p> <p>3. The fact that a creditor who took the note of the mortgagor before the mortgage was filed, required such note to be signed also by other persons, is not conclusive that he did not rely upon the property of the mortgagor ultimately to pay it.</p> <p>3. The fact that the creditor permitted the mortgagee to take possession and dispose of the mortgaged property does not estop him from requiring the latter to account therefor.,</p> <p>4. An affidavit for garnishment stating that an execution has been issued on a judgment against the principal defendant and has not been returned, is sufficient to give the court jurisdiction over the proceeding; and where the fact that an execution had been issued was not contested in the trial court it cannot be objected, on appeal, that there was no proof of that fact.</p>

One Teiss and his family, having become a charge upon the plaintiff town for their support, were relieved by it. It is alleged that such paupers then had a legal settlement in the defendant town.

<p> Lands granted to aid in improvement of Fox and Wisconsin rivers: Sale by state: Right to flood without compensation. </p> <p>1. The lands granted to this state by the act of Congress of August 8, 1846, to aid in the improvement of the Fox and Wisconsin rivers, were not granted merely as a location for the improvements, but to be sold and the proceeds used in making the improvements. And where such lands were sold by the state without any express reservation of the right to flood them, if necessary in making the improvements, without making compensation therefor, no such reservation can be implied from the mere fact that the lands were granted to the state to aid in making such improvements.</p> <p>2. Nor is any such i-eservation created by the act of the legislature of August, 1848 (Laws of 1848, p. 58). Sec. 16 of that act, providing that when any lands appropriated by the board of public works to the use of such improvements shall belong to the state they shall be absolutely reserved to the state, refers to an ownership by the state at the time of the appropriation, and not to an ownership of which the state had lawfully divested itself prior to the taking of the lands by the board.</p>

<p> Pleading: Pedundantmatter: Appealable order: Action, tort or contract? Conspiracy: Joinder of causes of action: Motion to make definite and certain. </p> <p>1. An order refusing to strike certain matter from a complaint as redundant or irrelevant is not appealable.</p> <p>2. A complaint sets fortli the employment of the plaintiff as a minister, under a written contract, by the officers of an unincorporated religious society, his salary, perquisites, etc., and alleges that the members of the society were satisfied with him and desired his continuance as such minister, but that the defendants (two of •whom were trustees of the society, who signed the contract of . employment and had control of the temporal affairs of the church), wrongfully conspiring and contriving together to injure the plaintiff and drive him from his position as such minister, did various acts, which are fully set forth. Then follows a statement of plaintiff’s damages by reason of such acts. Held, on motion to make more definite and certain, that the complaint is in tort for a conspiracy, and states but one cause of action.</p>

<p> Logs and timber: Wrongful cutting: Measure of damages: Interest: Offer of judgment: Costs. </p> <p>1. Where, in an action for the wrongful cutting of timber, the plaintiff recovers as damages, under sec. 42G9, R. S., the highest market value of such timber while in the possession of the defendants, he is not entitled to recover interest on such value.</p> <p>2. In an action for the wrongful cutting of timber an offer of judgment under see. 43C9, E. S., is only available to the defendant to prevent further costs, in cases where ‘‘the jury find such cutting was by mistake.” An offer of judgment under that section is not available under sec. 2189.</p>

<p> Municipal corporations: Defective streets: ^Nuisance created by city: Notice of injury: Reasonable time: Charter construed. </p> <p>A provision in a city charter that no action against the city for injuries sustained by reason of any defect in any street shall be maintained unless written notice of tho injury was given to the proper officers within five days of the occurrence thereof, does not apply where the injury was caused by a nuisance created by the positive acts of the city’s agents, such as leaving a large wooden roller in the street. [Quaere, whether the provision requiring notice to be given within five days is not invalid, as fixing a time unreasonably short.]</p>

<p> Ejectment: Recovery for improvements: Title under holder of life estate: Adverse possession as against remainder-man: Presumption that possession continues to he adverse: Improvements made after notice of plaintiff's claim. </p> <p>1. One entering into possession of land under a conveyance from the holder of a life estate only, cannot hold adversely to the remainder-man during the continuance of the life estate.</p> <p>2. But where the conveyance from the tenant for life purports to convey an estate in fee. and the grantor intended to convey the fee, and the grantee supposed he was getting the fee, the possession of the person entering under such conveyance becomes adverse to the remainder-man immediately upon the death of such life tenant.</p> <p>3. Findings that during a certain time a person had the exclusive possession of land, that he claimed to be the sole owner of the premises under and by virtue of a deed thereof to him, and that he asserted his title founded on said deed in good faith, are held equivalent to a finding that he was in possession holding adversely under color of title asserted in good faith.</p> <p>4. If the defendant in ejectment was at one time in possession of the land, holding adversely to the plaintiff under color of title asserted in good faith, and his possession continued down to the commencement of the action, it will be presumed to have continued to be adverse, in the absence of any evidence showing a change in the character of the possession in that respect.</p> <p>5. Where the defendant in ejectment entered upon the possession of the premises under color of title asserted in good faith, and has held adversely to the plaintiff, he is entitled (under sec. 3096, R, S.) to recover for improvements made by him, even though they were made after he had notice of the plaintiff’s claim.</p>

<p> lies adjudicata. </p> <p>In an action to restrain the preparation and. sale of an imitation of plaintiff’s medicine, and for damages, the plaintiff’s husband was joined with her, and she claimed to derive her right to the medicine from another as the inventor. Held, that a judgment against her in that action is conclusive and binding upon her in a subsequent suit by her alone in the same court against the same defendant, in which she alleges that she is the inventor, but in which the matters involved are otherwise the same.</p>

<p> Master and servant: Dangerous employment: Assumption of risle: Promise by master to remove danger: Continuance in service after reasonable time for performance. </p> <p>1. The risk from an uncovered saw projecting over its frame and partly across a narrow passage-way along which a servant in a mill is obliged to go in the performance of his duties, being apparent, is assumed by the servant in accepting and remaining in the service.</p> <p>2. A servant having the right to abandon the service because it is dangerous may refrain for a reasonable time from so doing in consequence of assurances by the master that the danger shall be removed, and will not be held to have thereby assumed the risk. But if he continues in the service for a time longer than it is reasonable to allow for the performance of the master’s promise he will be deemed to have waived his objection and assumed the risk.</p> <p>See note to this case in 41 N. W. Rep. 337. — Rep.</p>

<p>APPEAL from the Circuit Court for Taylor County.</p> <p>The action is replevin, brought to recover the possession of a quantity of pine saw-logs cut by the defendant between January 1 and March 1, 1888, upon certain lands alleged to belong to the plaintiff company, and by him removed therefrom. The complaint alleges that the entry by defendant upon such lands, the cutting and removal of the logs, and the subsequent detention thereof by the defendant, were unlawful and wrongful. The answer denies plaintiff’s title to the land; alleges that the logs were so cut and removed by the defendant under a license from the real owners of the land; that the plaintiff’s only claim of title is under a certain void tax deed, and that the three years statute of limitation has run against such deed. It is not alleged in the complaint, nor was it proved upon the trial, that the plaintiff was ever in the actual possession of the land from which the logs were taken. Such land seems to have always been vacant and unoccupied.</p> <p>The cause was tried by the court, a jury having been waived. To prove its right to recover the logs, the plaintiff put in evidence a tax deed of such land, dated August 20, 1880, executed in due form to Taylor county pursuant to a sale' of the land in 1876 for nonpayment of taxes thereon, with the certificate of the proper register of deeds thereon showing that such tax deed was received for record on the da}7, it bears date. Also the entries in the general index and the index of grantees, which the register is required by. statute (R. S. secs. 759, 760) to make and keep, and the record at largo of such tax deed in the volume and on the page indicated in such indexes. It was stipulated by the parties that the plaintiff had acquired all the title which Taylor county took under the tax deed; also that in May, 1882, sufficient money was deposited by the defendant with the proper county clerk to redeem the land in question from the tax sale thereof in 1876, which sale is the basis of the tax deed to Taylor county.</p> <p>The form of such tax deed is a literal compliance with the statute prescribing the same. R. S. sec. 1178. But in copying the deed upon the record the register omitted the word “ is ” from the formula “ as the fact is,” where the same last occurs iu the tax deed, recording only the words, “ as the fact.” The entries in the general index comply with the statute requirements in that behalf (R. S. sec. 759), except there is no entry under the head, “Description of Land.”</p> <p>On the foregoing facts the circuit court held that the plaintiff could not recover, and judgment was entered dismissing the complaint with costs. The plaintiff appeals from the judgment.</p> <p>The omission of the word is in the record of the deed in extenso was an immaterial clerical error, not affecting the record. Wade on Notice, secs. 152-3, 162, 170; Wyatt v. Barwell, 19 Yes. Jr. 435; Inee v. Everard, 6 Term, 545; Partridge v. Smith, 2 Biss. 183; Lybrand v. Haney, 31 Wis. 233; Austin v. Holt, 32 id. 489; Scheiber v. Kaehler, 49 id. 303; Bul-ger v. Moore, 67 id. 430. The indexing of the deed was sufficient. Oconto Co. v. Jerrard, 46 Wis. 317; Jones v. Berkshire, 15 Iowa, 248; Barney v. Little, id. 527; Calvin v. Bowman, 10 id. 529; White v. Hampton, 13 id. 260; Bost-wick v. Powers, 12 id. 456; American Emigrant Co. v. Call, 22 Fed. Rep. 765-7; Bisque v. Wright, 49 Iowa, 541; Sinclair v. Slawson, 44 Mich. 123.</p> <p>The following opinion was filed January 29, 1889:</p>

ACTION against tile state, commenced in the supreme court pursuant to ch. 139.

<p>APPEAL from the Circuit Court for Jefferson County.</p> <p>Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendants and their employees. The seven defendants who answered the complaint constituted the board of street commissioners of the city of Watertown. The city was made a defendant, but did not answer or appear in the action. The facts are sufficiently stated in the opinion. The plaintiff appeals from a judgment in favor of all the defendants except the city.</p> <p>1. The respondents were the senior ajder-men, and as such constituted the board of street commissioners of the city of Watertown (ch. 201, P. & L. Laws of 1871), a legislative body having all the powers of the common council except the power to levy taxes (ch. 10, Laws of 1879), and served without pay. They did nothing respecting the repair or construction of the bridge except at meetings of this body duly held, and then only to vote upon motions or resolutions regularly brought before such meetings, upon which it was their duty to vote. That duty Avas a legislative duty, for the performance of which, however negligent, erroneous, or improper, no individual can maintain an action against the officers personally. Cooley on Torts, 37G; Baker v. Slate, 27 Ind. 185; Walker v. Ilal-lock, 32 id. 239; 2 Thomp. on Reg. 817. 2. The duty to vote and act upon such motions and resolutions Avas also a duty which they owed to the public at large and not to any individual, and therefore no liability to individual suits could result from the negligent, improper, or erroneous performance of it. Cooley on Torts, 379; Wharton on Reg. sec. 281; Shearm. & Redf. on Reg. (3d ed.), secs. 166, 167, 176, 177; Kahl v. Love, 37 R. J. Law, 5; Hall v. Smith, 2 Bing. 156. The respondents having authority to act upon the general subject matter of the repair and reconstruction of the bridge, even if they proceeded illegally in the execution of that authority, in that they neglected to let the work by contract, such neglect does not render them liable in this action. The charter provision requiring the work to be let by contract being simply for the protection of the public, a failure.'to comply with it can be taken advantage of only by the public. .Mast River G. L. Go. v. Donnelly, 93 N. T. 557; Oconto v. O. c& N. TF. R. Go. 44 Wis.4231. 3. The respondents, as such board, having authority to act on the subject, and having acted in good faith with an honest view to obtain for the public a lawful benefit, are not liable even though they failed to exercise their authority in the specific manner directed by statute. Squiers v. Neenah, 24 Wis. 588; Hamilton v. Fond du Lac, 40 id. 47; Smith v. Gould, 61 id. 31; Alvord v. Barrett, 16 id. 175. 4. Public officers are answerable for their own personal malfeasances and misfeasances only, and not for those of their employees or agents; and this rule applies to every kind of public agency. Shearm. & Redf. on Neg. sec. 177, and note 2. 5. The respondents, as public officers, were charged with a duty which could not be performed without the aid of others; and in such case the doctrine of resjoon-deat superior does not apply so as to make them liable for the negligence of the persons employed, even though the officers did not follow the statute strictly in the exercise of their authority. Bailey v. Mayor, 3 Hill, 531; Martin v. Mayor, 1 id. 550; Donovan v. McAlpin, 85 N. T. 185; Fitzqjatrich v. Slocum, 89 id. 359.</p> <p>The following opinion was filed December 4, 1888:</p>

<p>APPEALS from the Circuit Court for Sheboygan County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>August 31, 1881, Abram Ehle made his last will and testament, the essential portions of which to be here considered are as follows:</p> <p>“ I give and devise to my wife, Susan Ehle, all of my real estate for the term of her natural life, with reversion at her death to my son James for the term of his natural life, and at his death said real estate shall revert to and become the property of his three children, namely Abram T., Flora, and Mary, absolutely. The land so devised consists of 160 acres, all in Greenbush, county of Sheboygan; and at decease of my son James shall be divided into three (3) portions, by lines running from north to south, each embracing fifty-three and one-third acres, or thereabouts; but the western third, of fifty-three and one-third acres, embracing the residence and farm buildings, shall become the property of my grandson aforesaid, Abram T., the other two thirds, respectively, becoming the property of my two grandchildren, Flora and Mary, respectively; it being understood, and my will, that Flora, aforesaid, shall possess the east third, and Mary, her sister, the middle third; . . provided, also, that in case of the death of either of the three (3) grandchildren, reversioners above specified, who shall die before arriving at his or her legal majority, then the reversion to that individual minor shall be divided and become the property of the other two beneficiaries in equal proportion, and in case of the death of a- second reversioner the survivor shall take the whole. Also I will and direct that my gold-headed cane shall be the property of my son James for the term of his natural life, with reversion at his decease to my grandson, Abram T., aforesaid. Then I give and bequeath to my son, James Ehle, all the goods and chattels in my possession, absolutely.”</p> <p>April 20, 1885, Susan Ehle, mentioned in the will, died. ■ The said Abram Ehle, and the said James A. Ehle, mentioned in said will, and his three infant children, to wit, Abram T., Flora, and Mary, mentioned in said will, and their mother, Helen Ehle, the vrife of the said James, were each and all burned to death on the morning of February 16, 1886, at the house of said Abram Ehle, in which they all resided, in the town of Greenbush, Sheboygan county. Thereupon said will was admitted to probate in the county court of that county.</p> <p>From the judgment and assignment of said estates, entered in said matters respectively in said county court, the blood relatives and heirs at law of said Abram and James appealed to the circuit court; and thereupon the jury was waived therein, and the cause was tried by said circuit court; and, upon the trial thereof therein, the court found, in relation to the estate of said Abram, in addition to the facts stated, in effect, that said Abram survived his wife, Susan, mentioned in the will; that said James was the only child of said Abram; that said infants, Flora, Abram T., and Mary, were the only children of said James and grandchildren of said Abram; that said Helen was the mother of said infant children, and the wife of said James; that, of the persons above named at said burning, the said Abram died first in order of time, and the said James next, and the said infant children, with their said mother, died last; that John W. and Caroline Taylor are the maternal grandparents and only heirs at law surviving said three infant children; that said John W. Taylor is the only duly qualified administrator of the estates of said three infant children; that by said will the said Abram bequeathed and devised all of his estate to said three infant children, subject to the life interest therein in favor of their said father, the said James.</p> <p>As conclusions of law therefrom, the court found, in relation to said Abram’s estate, in effect, that under said will all of the estate of said Abram vested in said three infant children, in their life-time, as devisees and legatees; that, by the death of all of said infant children all of such estate vested in said John W. and Caroline Taylor as heirs at law of said infant children, and in said John W. Taylor as administrator of the estates of said grandchildren; that the judgment and order of the county court therein, assigning all of the real estate left by said Abram to the said John W. and Caroline Taylor as heirs at law of said infant children, and all of the residue of the personal property left by said Abram to the said John W. Taylor as administrator of the estates of said infant children, be, and the same was thereby, affirmed; that the costs of the respective parties be taxed therein, and constitute a charge upon said estate, and be paid out of the same; and ordered judgment accordingly. Erom the judgment entered thereon accordingly the blood heirs of said Abram and the said James, respectively, have appeáled.</p> <p>In addition to the facts stated, the court, in relation to the estate of said James, found, in effect, that said infant children and their mother all survived the said James; that all of the estate left by said James upon his death vested in said infant children, in their life-time, as his heirs at law; that by the death of said infant children, and by the ap-. pointment of said John IK Taylor as administrator of their estates, all of the residue of said estate of said James A. vested in said John IK Taylor as such administrator; that the judgment and order of the county court entered therein, assigning all of such residue, after paying all expenses of administration, to said John IK Taylor as administrator, be, and the same was thereby, affirmed; that the costs of the respective parties therein be taxed therein, and be and. constitute a charge upon said estate, and be paid therefrom; and ordered judgment accordingly. From the judgment entered thereon accordingly the blood heirs of said James have appealed.</p> <p>to the point that where there is an irreconcilable repugnancy between two clauses of a .will the latter clause must prevail as being the latest expression of the testator’s intention, cited UeidZe-haugh v. Wagner, 72 Iowa, 601; Yaughan v. Gator, 85 Tenn. 302; Balcer and Wheeler’s Appeal, 115 Pa. St. 590; Christy v. Badger, 72 Iowa, 581; Hoppoeh v. Tuol&er, 59 N. Y. 202; Yan Nostrand v. Moore, 52 id. 12; Freeman v. Goit, 96 id. 63; Pratt v. Pice, 7 Cush. 209.</p>

<p> Boundaries: Acquiescence: Adverse possession: Evidence: Appeal: Immaterial errors: Instructions to jury. </p> <p>1. Plaintiff owns the east half, and defendant the west half, of a quarter section. While the premises were occupied by their respective grantors, the plaintiff’s grantor had objected that the fence between the tracts was too far east, and had procured a survey, which, however, showed that the true division line was still further east; whereupon he had importuned the defendant’s grantor to allow the fence to be rebuilt on the old line, and the latter had finally consented to do so “ for the present.” The fence had been rebuilt accordingly, and had remained on the old line without further question for more than twenty years, when the plaintiff, being dissatisfied because the fence was too near his house, asked the defendant to join him in having a new survey made. The defendant declined to do so, and the plaintiff himself procured a new survey, which substantially agreed with the former one, showing the true line to be east of the fence. Thereupon the defendant, with the consent and by the direction of the plaintiff, proceeded to build a fence upon the line fixed by the surveys. The plaintiff afterwards brought suit to recover possession of the strip between the old fence and the new one. Held, that the possession of such strip by the plaintiff and his grantor had not been adverse to the defendant and his grantor, and that the line of the old fence had not been established as the division line by agreement or acquiescence.</p> <p>2. Evidence as to how the old fence would agree with the fence on the division line of a corresponding quarter section to the north, owned by a third person, was immaterial.</p> <p>8. Where the trial court would have been justified in directing a verdict for the defendant, the plaintiff was not injured by omissions in the instructions given or by the refusal to give others.</p>

<p> flj Deposition tajeen in another action: Stipulation: Second trial. (%) Special verdict: When request to be made. (3, l¡.) Stolen property: Recovery from receiver: Preponderance of evidence sufficient: Defendant’s refusal to testify. </p> <p>1. A stipulation that a deposition taken in another action may be read and used upon the trial of the action in which such stipulation is made, gives the right to have it read and used upon a second trial of the latter action.</p> <p>2. Where the request for a special verdict is not made until after the commencement of the argument to the jury, it is not error to refuse it.</p> <p>3. In an action to recover money which the defendant has been convicted of receiving knowing that it had been stolen from the plaintiff, the latter may recover upon a preponderance of the evidence. It is not necessary in the civil action to show any guilt on the part of the defendant.</p> <p>4.If, in such civil action, the defendant declines to explain how he came by the money which it is alleged belonged to the plaintiff, that fact, though not evidence that the money was the plaintiff’s, may nevertheless be considered by the jury as corroborating the plaintiff’s evidence.</p>

Action to x-ecover $633.75 for work, laboi\ and services of the plaintiff in superintending the building of a well, laying water-pipes, and setting hydrants, and other work and labor in connection with the same on the mill premises of the' defendants, and also for machinery and materials sold, furnished, and delivered by the plaintiff to the defendants at their said mill premises.

<p> C1) Mortgages: Non-negotiable note: Assignment: Pleading. (3) Foreclosure: Judgment: Error in computation of amount due. (3J Judgment: Special term: Authentication: Appeal. </p> <p>1. In an action to foreclose a mortgage securing a non-negotiable note or contract for the payment of money, an allegation that the plaintiff paid the mortgagee the whole amount due thereon (stating time, place, and amount), “for and in consideration of which” the mortgagee “then and there sold, assigned, and delivered to said plaintiff all her right, title, and interest in and to said contract and mortgage and the amount due thereon,” sufficiently avers the transfer of the securities to the plaintiff, and shows his ownership thereof and his right to maintain the action.</p> <p>2. In an action to foreclose a mortgage the defendant appeared and had due notice of the application for judgment. By a mistake in computation the amount which the referee reported to be due after deducting payments, and which was inserted in the judgment, was slightly too large. Held, that the defendant must have called the attention of the trial court to the error, or at least have demanded that the plaintiff remit the excess, before such error will be available to him on appeal. Zwiclcey v. Iianey, (53 Wis. 464, distinguished.</p> <p>3. Where in an action in the circuit court for one county judgment is rendered at a special term of that court held in another county, the want of proper authentication of the judgment by the clerk of the a latter county (sec. 2428, R. S.) is not a jurisdictional defect, but, at most, a mere irregularity which will not be corrected on appeal unless an opportunity is first given to the circuit court to supply the alleged defect in the record'.</p>

<p> Mortgages: Homestead: Duress: Parent and child. </p> <p>The evidence in this case is held (contrary to the finding of the trial court) to show that the mortgage sought to be foreclosed was executed, as to the homestead embraced therein, by the defendant wife under duress and undue influence exerted by means of threats that unless she so executed it the plaintiff would cause the imprisonment of her son for a crime of which the latter was not in fact guilty. The mortgage is therefore void as to such homestead.</p>

The following statement of the case was prepared by Mr. Justice Tatloe as a part of the opinion: The material facts in this case are the following: January 10, 1874, John B. Terry died at Mineral Point in this state, testate. His will was duly admitted to probate, February 16, 1874.

The following statement of the case was prepared by Mr. Justice Cassoday: The amended complaint alleges, in effect, the incorporation and existence of the defendant at the times named; its right to do a mutual life insurance business and issue the policy or certificate sued upon; the application of the plaintiff’s wife to the defendant, March 19, 1886, for such policy upon her life, to the amount of $4,000, payable in case of death to the plaintiff; that said wife submitted…

<p> Cl) Contraéis: Logs and logging: Court and jury. Settlement: Instruction to jury. (8) Recoupment: Partial performance of contract. (4) Evidence: Conversations with third persons. </p> <p>1. By the terms of a contract logs were to be delivered into a certain stream “ in good driving water,” and landed “ so that they could be easily started through the dam in the spring.” It appeared that at the point where the logs were landed the stream, at its ordinary stage, really had no good driving water, but that at times of high water logs could be run therefrom by means of the water set back from a flooding dam below; and the evidence tended to show that the logs might have been run down the stream had not the dam below been choked with other logs. Held, that it was not error to submit to the jury the question whether the logs were delivered in good driving water.</p> <p>3. In an action for a balance alleged to be due upon an account stated, the plaintiff attempted to prove a settlement of all matters between the parties. The court chai’ged the jury that if all matters were settled, and the defendant, knowing just how the plaintiff had performed the contract upon which his claim was based, had talked over that matter, and the parties agreed as to the amount due, then they were bound by the settlement: that no advantage could be taken, but the parties must have fully understood and agreed that any claim for a breach of the contract was included in the matters settled, otherwise such claim was still open and unadjusted. Held, sufficiently favorable to the defendant.</p> <p>3. In an action upon a contract which the plaintiff had not fully performed and which the defendant had employed a third person to complete, the defendant may recoup what such completion was fairly worth, but not necessarily all he paid therefor.</p> <p>4. A party may state his understanding of a conversation between him ' and a third person who has testified as to the same on behalf of the opposite party.</p>

This is an action on an account for goods, wares, and merchandise alleged to have been sold and delivered by the plaintiff to the defendant Thomas J. La Flesh between' May 18,18S6, and May 23,1887, to the amount of $1,516.33, and to enforce a lien upon a certain forty-acre lot of land described in the complaint, for $466.80 of such amount.

The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion: The material facts in this case are the following: First. In January, 1877, one H. S. Dixon, then living, and the plaintiffs, entered into a copartnership under the firm name and style of the Rew London Stave Company. That said copartnership was composed of the following named firms and persons, to wit, the firm of Logan & Co., composed of the plaintiffs Thomas Logan and G. IF.

<p> Ejectment: Failure to pay for improvements: Judgment. </p> <p>Under sec. 3098, E. S., if the plaintiff in ejectment fails to pay the amount of the assessment for improvements and taxes within three years from the date of the verdict assessing the same, he is barred of his recovery whether the judgment so providing has been entered or not: and if the judgment has not been entered within such three years the plaintiff is not thereafter entitled to have it entered, but the defendant may have it entered nunc pro tunc and then declared absolute in his favor.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: The deceased died in the spring of 1885.

<p> (1) Evidence: Deposition taken on legal holiday. (2) Husband and wife: Agency: Estoppel. </p> <p>1. Sec. 8576, E. S., as amended by ch. 148, Laws of 1885 (providing that no court shall be opened or transact any business on any legal holiday, unless it be for the purpose of instructing or discharging n jury, or of receiving a verdict and rendering a judgment thereon), does not render inadmissible in evidence a deposition taken in another state on a day made a legal holiday in this state.</p> <p>8. Where a husband has charge of his wife’s business which consists in dealing in horses, the fact that in looking after the horses he treats them as his own with her knowledge ought not to estop her from asserting her title to them as against his creditors.</p>

This action is to recover the value of a colt belonging to tbe plaintiff, which was killed by a passing locomotive on the track of the railway operated by the defendants, by reason of their alleged negligence in failing to keep in repair and maintain a fence along their right of way contiguous to the plaintiff’s land.

<p> (1J Appeal: Exceptions: Stipulation construed. (%) Execution: Exemption: “Purchase money." </p> <p>1. A stipulation that the exceptions taken to the conclusions of law and order for judgment be taken as a part of the record and stand as and in lieu of a bill of exceptions, is held to be a waiver of the objection that the exceptions are not sufficiently specific, and to amount to a stipulation that such exceptions shall be effectual to raise the question whether the conclusions of law and order for judgment are warranted by the findings of fact.</p> <p>2. Money loaned to be used in purchasing certain property, and actually so used by the borrower, is “ purchase money ” within the meaning of subd. 20, sec. 2982, E. S., and the property so purchased is not exempt from execution issued upon a judgment in an action by the lender to recover the money lent.</p>

This proceeding arises out of the judgment in Clinton v. Webster, 66 Wis. 322, and the transactions upon which such judgment is based. During the most of thé time of such transactions Webster,.the claimant and respondent herein, and Publius Y. Lawson, since deceased, were partners. That action related to their copartnership business and affairs, and, Lawson having died in 1881, it was brought against- Webster as surviving partner.

This is an action in equity brought by the plaintiff, who is the owner in fee of certain lands in which is a range of mineral, against the' defendants, who claim under the discoverers of such range to be the owners'thereof. Atrial of the action resulted in a judgment for the defendants dismissing the complaint. The plaintiff appeals from such judgment.

Paul Grottkau was indicted, tried, and convicted in the municipal court of Milwaukee county of the offense of riot, and on May 7, 1887, was sentenced to confinement at hard labor for one year in the house of correction. Before execution of snob sentence, and on May 14, 1887, that court granted a stajr of execution of the judgment, pending the determination of the case by this court, to which it was brought by writ of error.

<p>. APPEAL from the Circuit Court for La Fayette County.</p> <p>The facts are stated in the opinion.</p>

<p> Attorney at laio: Disbarment: Evidence: Good moral character: Conversion of client's money: Findings: Acting against former client: Jurisdiction. </p> <p>1. Even where the charges of professional misconduct upon which an attorney is disbarred are not of a criminal nature, they should be established by a preponderance of satisfactory evidence.</p> <p>2. As “ good moral character ” is a condition precedent to admission to the bar, so it is a requisite condition for the rightful continuance in the practice of the profession.</p> <p>3. The fact that an attorney collected and wrongfully converted moneys belonging to his clients, and then failed to pay them over after repeated demands, especially where his attempt to retain such moneys was a subterfuge and in bad faith, is sufficient to authorize his suspension if not disbarment.</p> <p>4. The misconduct which will warrant the suspension of an attorney is not limited to acts committed strictly in a professional charac-f ter, but extends to all such misconduct as would have prevented an admission to the bar.</p> <p>5. In proceedings to disbar an attorney the court may find the facts proved by evidence admitted without objection, even though such facts were not stated in the formal charges filed.</p> <p>6. It is sufficient to warrant the disbarment of an attorney that, having acted for the claimant in a contest concerning the validity of a homestead claim, he afterwards instigated and conducted in behalf of another person a second contest against his former client, involving the same subject matter and based largely upon the same facts, and in such second contest _testified as a witness against his former client and used the information acquired by means of his former employment.</p> <p>7. In proceedings instituted in the court of his residence, such court may disbar or suspend an attorney for professional misconduct before officers of the United States land office.</p>

<p>APPEAL from, the County Court of Winnebago County.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>To the point that plaintiff, on behalf of himself and others similarly situated, can maintain this action to restrain defendants from enforcing the resolution, they cited High on Injunctions, secs. 367, 793-4; Dean v. Madison, 9 Wis. 402; Heijwood v. Buffalo, 14 N. T. 534; Mayor v. Gill, 31 Md. 375; Hew London v. Brainard, 22 Conn. 555; Scofield v. Lighth School Dist. 27 id. 499; Delaware Go. v. MeOlintoch, 51 Ind. 325; People v. Mayor, 32 Parb. 35; Perry v. Kin-near, 42 Ill. 164; People v. Mayor, 32 Barb. 102; Pullman v. Mayor, 49 id. 57; Whiting v. 8. & F. du L. B. Go. 25 Wis. 167; Peak v. School Pist. 21 id. 516; Willard v. Oom-stoek, 58 id. 565.</p> <p>Besides cases referred to in the opinion, they cited Milwaukee Iron Go. v. Hubbard, 29 Wis. 51, 59; Smith v. Oconomowoe, 49 id. 694, 697.</p>

<p> Contracts: Subscription: Consideration: Payment by check: Parol evidence to vary written contract: Condition subsequent: Discharge of judgment recovered prior to breach. . </p> <p>1. The defendant stated, in writing, to the county board that if within two years §2,000 should be raised by tax from the county and paid to a certain corporation to aid in the erection of a soldiers’ monument, he would himself pay to said corporation §1,000 for the same purpose. Held, that the raising of the $2,000 by the county by tax, and the payment thereof to the corporation, was a good consideration for the defendant’s subscription, which, not having been previously withdrawn, thereby became absolute.</p> <p>2. Afterwards, in a communication to said corporation, the defendant stated that, in conformity with his agreement with the county board, he did thereby “subscribe and hand to the treasurer of said corporation $1,000 in money, to be used ... in the erection of a soldiers’ monument,” on condition that the net cost thereof should not be less than $6,000, and that the full amount of $6,000 should be in the treasury of the corporation on or before March 1, 1888, “ and if said amount of $6,000 is not in the hands of said treasurer by March 1, 1888, the said $1,000, so by me subscribed and hereby paid, shall be at once returned and refunded and paid back to me.” The board of directors of the corporation approved of such communication and all its conditions, and the defendant thereupon gave to the treasurer his check for $1,000, and a receipt was given to him, signed by the treasurer and approved by the directors, as follows: “Received of [defendant] the sum of $1,000 according to the foregoing letter, its terms and conditions; and if the sum of $6,000 in money is not in my hands as treasurer . . . on March 1, 1888, then the said sum of $1,000 is to be refunded to said [defendant] forthwith.” Subsequently, by direction of the defendant, payment of his check was refused. Held:</p> <p>(1) The check was given upon sufficient consideration.</p> <p>(2) The check was given and received as money, and was & payment of the subscription.</p> <p>(3) Parol evidence of a contemporaneous agreement that the check was to be paid by a bond to be given by the defendant for the payment of the $1,000 upon the conditions specified in his communication, was inadmissible to vary the contract evidenced by the communication, check, and receipt.</p> <p>(4) The failure of the corporation to raise $6,000 by March 1, 1888, could not be a defense to an action upon the check brought and prosecuted to judgment before that date.</p> <p>(5) If the condition as to the raising of such $6,000, contained in the contract between the defendant and the corporation, is valid (a qixestion not determined), and there has been a breach thereof, the ferial court may, on defendant’s motion, discharge the judgment recovered before March 1, 1888, on the check.</p>

The following statement of. the case was prepared by Mr. Justice Casscoat: The complaint in this action alleges, in effect, that on and prior to February 13, 1883, the parties were partners doing business in the name of Hagenahs & Geffert, and engaged in the hardware and agricultural implement business. That they were also engaged in carrying on a brewery, and the individual members also held stock in the -Reedsburg.Woolen Mills.

<p>APPEAL from the Circuit Court for Dane County.</p> <p>The case is sufficiently stated in the opinion.</p> <p>cited, besides cases referred to in the opinion, Dean v. Empire 8. M. Ins. Go. 9 How. Pr. 69; lewis v. I-rving F. Ins. Go. 15 Abb. Pr. 303; Batchelor v. Albany City Ins. Go. 1 Sweeney, 346; Samtle v. Mechanics'1 F. Ins. Go. 1 Hall, 560.</p> <p>In addition to cases referred to in the opinion, they cited Druse v. llorter, 57 Wis. 644; Cameron v. Freeman, 18 How. Pr. 310; M' Gullough v. Broclie, 13 id. 346; Fain v. Delano, 11 Abb. Pr., N. S., 29; Van Rensse-laer v. Jewett, 6 Hill, 373; Thomas v. Reab, 6 Wend. 503; Levy v. Brooklyn F. Ins. Go. 25 id. 687; McLean v. Fast River Ins. Go. 8 Bosw. 700; Brink v. Republic F. Ins. Go. 2 T. & @. 550; Magown v. Sinclair, 5 I)ahr, 63; Seigel v. Ileicl, 36 How. Pr. 506.</p>

<p>APPEAL from the Circuit Court for Lcmglacle County.</p> <p>The action is to foreclose a mortgage executed by the defendants Joseph, Duchac and wife to Barbara M. Rhyner, on certain lands in Langlade county, to secure the payment of an unnegotiable promissory note for $300, and interest, given by said Joseph Duchac to said Barbara. The note and mortgage were given for a loan of money, and bear date May 29, 1883. The mortgage purports to have been recorded May 31, 1883, in the office of the register of deeds of that county. The loan was made to Duchac by one Louis Schintz, of Appleton, a land and loan agent, through the firm of Deleglise & Hutchinson, which firm was engaged in a similar business at Antigo.</p> <p>Barbara M. Rhyner was the maiden name of the wife of one Eerdoline Zentner, a client of Schintz. The latter had loaned money for Zentner at different times, and for some of those loans had taken securities in the maiden name of Mrs. Zentner, with her consent and by the direction of her husband. Schintz was verbally authorized by both of them to execute receipts, etc., in her maiden name. Schintz was also accustomed to make other loans in the name of Barbara M. Rhyner, with her consent.</p> <p>The moneyToaned to Duchac did not belong to Zentner or his wife, and was not loaned as the money of any particular client of Schintz. The latter had in his hands when this loan was made more than $300 of the money of the plaintiff, who was also one of his clients, to be loaned for him, and from whom Schintz had a general authority to invest the money in his discretion. On June 5,1883, which was almost immediately after he received the note and mortgage from D. & EL, Schintz charged the amount of such note to the plaintiff, and at the same time assigned, or attempted to assign, the mortgage to the plaintiff by a written assignment executed by him in the name of said Barbara. He attested such assignment and attached thereto his certificate, as a notary public, of the acknowledgment thereof by Barbara. He retained the papers in his hands until after the action was commenced, and until that time plaintiff was not informed of the transaction. On August 15, 1883, Duchac refunded the $300 to D. & H., who agreed to obtain the note and mortgage then in the hands of Schintz, and a release of the mortgage, but failed to do so. Duchac then mortgaged the same land to one Barnes, who knew of the mortgage in suit. Barnes afterwards foreclosed his mortgage, purchased in the land at the foreclosure sale, and conveyed the same by warranty deed to the defendant McCully. The latter had no actual notice, when he purchased the land, of the existence of the mortgage here in suit.</p> <p>The general index kept in the office of the register of deeds, pursuant to sec. 759, R. S., contains an entry of the mortgage, in compliance with the statute, except a description of the land thereby mortgaged is omitted therefrom, and except also certain apparent irregularities in the order of the entries therein, which are referred to in the following opinion. The index first mentioned in sec. 760, and the grantee index provided for therein, were kept in such office, and contain entries of the mortgage as required by the statute. The mortgage was recorded in full in the proper record book, at the place specified in the indexes, and the register indorsed upon it the time it was received for record, etc., pursuant to subd. 5, sec. 788. When the. mortgage was thus recorded at length does not affirmatively appear.</p> <p>Defendant Mo Gully, and two others who were made defendants as alleged subsequent incumbrancers, answered in the action. The other defendants defaulted. The answers need not be stated here, because no question arises on the pleadings. It is sufficient to say that they present the questions considered and determined in the opinion. The transactions out of which this action arose are somewhat numerous and involved, but it is believed the foregoing statement of facts contains all that is necessary to an intelligent understanding of the material points in the case.</p> <p>The circuit court held that there was no valid registry of the mortgage, and, because the defendant McOully had no actual notice of the mortgage when he purchased and paid for the land, that his rights were paramount to those of the plaintiff under his mortgage. The court thereupon gave judgment dismissing the complaint upon the merits. The plaintiff appeals from the judgment.</p> <p>To the point that the interest of a mortgagee can be transferred by parol, and that a mere transfer of the debt to secure which the mortgage is given transfers the interest of the mortgagee in the mortgaged premises, unless it be otherwise expressly agreed, they cited Brinhman v. Jones, 44 Wis. 498; Oroft v. Bunster, 9 Wis. 503; Jones on Mortg. sec. S34; Carpenter v. Longcin, 16 Wall. 271, and cases cited; Kennicoit v. Supervisors, id. 452; Cornell v. Hichens, 11 Wis. 353; Andrews v. Kart, 17 id. 297; Crosby v. Boub, 16 id. 616; Maxwell v. Hartmann, 50 id. 660; Kelley v. Whitney, 45 id. 110; Perkins v. Sterne, 76 Am. Dec. 72, and notes.</p>

<p> Collection of draft by express company: Payments: Application. </p> <p>In an action to recover the amount of a draft alleged to have been collected by the defendant, it appeared that before receiving said draft the defendant had received other drafts upon the same debtor for collection, and that the debtor in making payments had not directed the application thereof. Held, that to maintain the action the plaintiff must show that the, debtor had paid to the defendant a sum more than sufficient to satisfy the other drafts.</p>

<p>APPEAL from the Circuit Court for Washburn County.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>APPEAL from the Circuit Court for Book County.</p> <p>Action to recover the penalty prescribed by sec. 1326, R. S., for the obstruction of a highway. The facts will sufficiently appear from the opinion. The plaintiff: appeals from a judgment in favor of the defendant.</p> <p>They argued, among other things, that even if the locus in quo is a highway this action cannot be maintained, because the fence is but an encroachment and not an obstruction. This fence had stood where it now does for many years, and the highway has at all times been sufficient to accommodate all the public travel that there was on the road. Wyman v. State, 13 Wis. 663, 667; Godsell v. Fleming, 59 id. 52; Thompson on Highways, 310; Earrówer v. Bitson, 37 Parb. 301; Griffith v. McGullum, 46 id. 561; McCarthy v. Syracuse, 46 1ST. T. 194.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: The complaint is upon a policy of insurance issued by the defendant to'the plaintiff company, with the loss payable to the plaintiff Blalee as his interest might appear.