Volume 74 — Wisconsin Reports

<p> Reformation of contract: Parent and child: Evidence. </p> <p>1. Parents conveyed to their son their farm and personal property, worth at least $3,000, in consideration of which the son agreed in writing to furnish certain things annually for their support and to provide a house for them on the farm. In pursuance of the contract the son also gave a mortgage to secure the payment of $1,500 to the parents, in lieu of the above provision for them, in case the land should be sold during their life-time. Ten years later, the son having died intestate, the parents brought this action against his wife, who was his heir, to reform the contract and mortgage, alleging that it was in fact agreed that the $1,500 should be paid in case the son died during the life-time of the parents, as well as in case the land was sold. The plaintiffs, who, when the contract was made, were old, illiterate, and knew but little English, testified positively that such was the agreement, that they instructed the scrivener so to write the contract, and that he said he would do so. Another witness testified to a conversation with the son in which the latter said he owed his parents $1,500, which he was to pay if he sold the farm, and which they were to have in case he died. There was no other evidence on the subject, the scrivener and the witnesses to the contract being all dead. Held, that the contract should be reformed as prayed.</p> <p>2. Án objection to all that portion of the plaintiffs’ depositions which relates to any communication or transaction between them personally and the son when living, if sufficiently definite for any purpose, does not cover that part of the depositions relating to instructions given by the plaintiffs to the scrivener who drew the contract.</p>

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

<p> New trial: Excessive damages: Remission: Discretion: Appeal. </p> <p>1. The circuit court may require a plaintiff to remit excessive damages as a condition of denying a motion for a new trial.</p> <p>2. A new trial should not be granted on the ground of excessive damages unless it is clear that the damages are materially greater than the evidence will justify; but an order granting a new trial on that ground will not be reversed unless it is clear that the damages are not greater than the evidence will justify.</p> <p>S. In an action for a conspiracy to control and monopolize the sale of coal in a city and to drive the plaintiff out of the business, the evidence showed, among other things, that the actual profits lost by the plaintiff on pending contracts was less than $750; that he had no established business, and no plans to continue in the business beyond the current year; that he was merely an agent or a silent partner of one of the defendants, in whose name and with whose capital the business was conducted, and who had consented to the acts of the other defendants. The jury awarded the plaintiff $4,750. Held, that there was no abuse of discretion in granting a new trial on the ground that the damages were excessive.</p>

<p>APPEAL from the Circuit Court for Washington County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>This is an action of ejectment for a narrow strip of land. The' answer contained a general denial, and alleged continued adverse possession and occupancy for more than twenty years immediately preceding the commencement of the action. Upon the trial the jury returned a verdict in favor of the plaintiff, to the effect that he was the owner in fee simple of the premises, and entitled to the possession thereof, and that the defendant unlawfully withholds the same from the plaintiff, to his damage in the sum of $9. From the judgment entered thereon the defendant appeals.</p>

<p> Equity: Municipal corporations: Erection of buildings: Specific performance: Injunction. </p> <p>1. Equity will not compel the specific performance of an agreement by a city to erect a city hall upon a certain lot, although the plaintiffs own other property adjacent thereto which would be benefited by such erection, and had for that reason sold the lot in question to the 'city for less than its value, relying upon the agreement to build the city hall thereon.</p> <p>2. The fact that the title to another lot upon which the city proposes to build the city hall is imperfect, is not ground for an injunction, at the suit of a private person, to restrain such building.</p>

<p> Municipal corporations: Sidewalks: Trespass: Damages: Nonsuit: Appeal. </p> <p>1. A village having taken the steps which authorized it to build a sidewalk in front of a certain lot, and the lot-owner haying refused to build the walk within the time prescribed by law or at any other time, the doing of the work by the village sooner than it was permitted to do it by sec. 5, ch. 123, Laws of 1873, is at most a technical trespass for which (no actual damage being shown) the lot-owner can recover only nominal damages.</p> <p>3. Where the plaintiff was entitled to recover nominal damages only, and upon such recovery would have been compelled to pay the costs of the defendant, a judgment of nonsuit will not be reversed.</p> <p>3. General power granted to a village board to direct new sidewalks to be constructed implies the power to direct as to the material of which they shall 'be constructed and the width and manner of construction, and the discretion of the village authorities in that matter cannot be interfered with by the courts unless it is exercised in such a way as to be clearly unjust and unnecessarily oppressive to the lot-owners.</p>

<p>APPEALfrom the Circuit Court for WauJeesha County.</p> <p>The case is sufficiently stated in the opinion. .</p>

<p>REPORTED from the Municipal Court of Milwaukee County.</p> <p>The first and fifth questions reported were as follows:</p> <p>“ 1. Is the evidence in the action sufficient to sustain the verdict of the jury convicting the defendant of the embezzlement of $130 received by him of said Batteiger on February 2, 1888, at Butte City, Montana?”</p> <p>“ 5. Did the court err in charging the jury that they should not convict the defendant under any of the evidence in the action except that relative to the collection and refusal to account for the $130? ”</p> <p>The other questions are stated in the opinion.</p>

<p>ERROR to the Municipal Court of Rock County.</p>

<p>(1) Certiorari to state superintendent: Whatwillbe reviewed. (2, 8J Common schools: Residence of minors for school purposes.</p> <p>1. Upon certiorari to the state superintendent his decision upon a question of fact will not he reviewed if there was any evidence to support it.</p> <p>2. A minor may have, for school purposes, a residence other than that of his parents.</p> <p>3. The mother of a minor child had been deserted by her husband. She was a school teacher, having no permanent home, but board- • ing in Milwaukee, and unable to support and keep the child with her. She found a home for the child in Waukesha, where he worked for his board. The child had no other home or residence. He was not sent there to attend school, but from other considerations, Held, that the child had such a residence in Wau-kesha as entitled him to the privileges of the public school therein.</p>

The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion: The plaintiff was the owner of large tracts of real estate in the towns of Washburn and Bayfield in the county of Bayfield, and the same had been assessed for taxes in said towns and county for the year 1886, and taxes for school, town, county, and state purposes had been levied thereon for said year 1886.

The defendant company is a corporation organized under the laws of Illinois and doing business as a mutual insurance company in the city of Chicago. This action is upon a policy of insurance issued by it to the plaintiffs, dated September 5, 1885, in and by which it insured the plaintiffs for five years against the loss by fire of or damage to certain real and personal property in the city of Kewaunee, Wis., to the amount of $10,000.

Action by the widow and minor heirs of Charles C. Tucker, against Lucy M. Whittlesey, widow of Asaph Whit-tlesey, and others.

The action is upon a promissory note for $2,000 and interest, signed, “ Fish Bbos. & Co.,” payable to A. 0. Fish, or order, five years after date, which is February 5, 1879, and indorsed by the payee, December 4,1880, to the plaintiff, who paid full value therefor. No questions are raised upon the pleadings.

<p> Insurance against fire: Agency: Waiver of conditions of policy: Ineum- . branees: Proofs of loss. </p> <p>1. Under sec. 1977, R. S., the local or soliciting agent of an insurance company may, before a contract of insurance has become complete and binding, waive conditions of the policy as to incumbrances then existing. Hankins v. Rockford Ins. Go. 70 Wis. 1, distinguished.</p> <p>3. A soliciting agent, with knowledge of incumbrances upon the property to be insured, filled out an application stating that there were none, and procured it to be signed by-the owner, who was ignorant in such matters. The agent further stated, on the back of the application, that he had personally inspected the property, that he recommended the risk, and that he was satisfied that the answers in the application were correct. Held, that this was a waiver of a condition in the policy avoiding it in case the property was incumbered.</p> <p>3. Where the general agent, with knowledge of the incumbrances, recognized the policy as a subsisting contract and invited proofs of a loss, which were furnished accordingly, the company is es-topped from asserting the original invalidity of the policy by reason of such incumbrances.</p> <p>4. A provision in a policy that there should be no waiver-of its conditions unless made “in express terms and in writing signed by the . president or secretary of the company,” is ineffectual to prevent a waiver by the general agent of a foreign insurance company of the requirement that proofs of a loss should be furnished within a certain time.</p> <p>See note to this case in 42 N. W. Rep. 208.— Rep.</p>

<p> Attorney at law: Employment by school district: Public officers. </p> <p>The plaintiff, an attorney at law, was employed by the director of a school district to defend a suit against -it in justice’s court. That suit was discontinued and another one on the same cause of action commenced in the circuit court. Thereupon the electors of the district appointed a committee of three, of which the plaintiff was a member, to conduct the defense; and at a subsequent meeting of the electors a proposition to rescind the appointment of such committee was voted down. Held, that there was a valid employment of the plaintiff as an attorney by the district, and that he was entitled to compensation for his services. The committee were not public officers whose services would be deemed to be gratuitous.</p>

<p> Municipal corporations: Injuries to person from defect in sidewalk: Constructive notice: Evidence of other defects: Instructions to jury. </p> <p>1. For the purpose of showing constructive notice to a village of a defect in a sidewalk, other defects in the immediate vicinity, or the general bad condition of the walk, may be shown.</p> <p>2. An instruction that a village is not liable for latent defects in a sidewalk, should define the term “ latent defects.”</p> <p>3. At the place of an accident the sidewalk rested upon posts considerably above the ground, and crossed a ditch. It was very liable to get out of repair. A portion of it had been thrown up several inches higher than another portion, making a break in the walk. Held, that an instruction in effect charging the village with constructive notice of the defect which caused the accident if a rebuilding of the walk at that' place would have disclosed such defect, did not call for a higher degree of diligence than the law-required of the village authorities.</p> <p>4. An instruction that if the jury found certain facts “ from the testimony of the plaintiff ” she was not necessarily guilty of negligence, is held not to ignore conflicting testimony on the part of the defendant, but merely to state to the jury the effect of the facts testified to by the plaintiff, if, from all the evidence in the case, the jury believed her testimony. Koenig v. Katz, 37 Wis. 157, distinguished.</p>

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

<p>APPEAL from the- Circuit Court for Marinette County.</p> <p>Ejectment. The facts will sufficiently appear from the opinion. The plaintiff appeals from a judgment in favor of tbe defendant.</p> <p>They contended, inter alia, that the act of 1819 passed to Mari-nette county the legal title to the tax certificates. A tax certificate evidences an interest in land and is therefore real property. R. S. sec. 4911, subd. 9; Van Camp v. Peer-enboom, 14 Wis. 70; Eaton v. Manitowoc Co. 44 id. 489; Morn v. Carry, 49 id. 464. The formal assignment was intended to be the documentary evidence of the transfer, but not the transfer itself. Wright v. Roseberry, 121 U. S. 488; Southern P. R. Co. v. Orton, 32 Fed. Rep. 457; Jackson I. <& S. R. Co. v. Davison, 32 N. W. Rep. (Mich.), 726; Lang-deau v. Hemes, 21 Wall. 521; People, ex rel. McKenzie v. Ulster . Co. 94 N. Y. 263; Supervisors v. Ellis, 59 id. 620; People v. Fields, 58 id. 491. If the act passed only the equitable title, still it effectually deprived Oconto county and its officers of all authority.over the certificates, except mere obedience to the directions of the act, and any other disposition was unlawful. It made a specific disposition of these certificates, which could not be abrogated or departed from except by the authority of the legislature itself. The county board could not release the treasurer of Marinette county from the performance of the duty, imposed by the act, to demand the certificates. Beal v. St. Croix Co. 13 Wis. 500; Douglas Co. v. Walbridge, 38 id. 179. Oconto county had no authority or capacity under the law to purchase or receive the surrender of the tax certificates. Knox v. Peterson, 21 Wis. 247; Sprague v. Coenen, 30 id. 209; Eaton v. Manitowoc Co. 44 id. 489; Dreutzer v. Smith, 56 id. 292; Wright v. Zettél, 60 id. 168.</p>

<p> Liens for labor, eta.: Railroad bridges: Public policy. </p> <p>1. Under sec. 1, art. XI, Const., the legislature may enact laws for the enforcement of liens for labor upon bridges and other structures of a railway company, although the same are part and parcel of its railway or essential to the operation thereof.</p> <p>2. Sec. 3314, R. S., giving a lien for labor performed in or about the erection of “ any bridge,” applies to railroad bridges, and the public policy of this state is to enforce such a lien.</p>

<p> Revival of actions: Death of plaintiff before service of complaint: Supplemental complaint. </p> <p>1. The fact that the proceedings in an action, at the time of the death of one of the parties, do not disclose facts showing that the action survives, does not defeat the right to continue it in favor of or against the representative of the deceased, if the cause of action in fact survives.</p> <p>2. Where the plaintiff has died before serving his complaint the right to revive the action is not limited to one year. A complaint thereafter filed by his representative for the purpose of reviving the action will he a “supplemental complaint” within the meaning of secs. 2803, 2810, R. S., although it is the first complaint filed in the action.</p>

<p> Land contract: Unauthorized cutting of timber: Ratification: Election between remedies: Waiver of the tort: Pleading. </p> <p>1. Under an unauthorized contract for the sale and conveyance of plaintiff’s land to the defendant L., the latter entered upon the land and cut timber therefrom in excess of the amount which the contract allowed him to cut. With knowledge of all the facts the plaintiffs ratified the contract, and afterwards brought an action for its strict foreclosure and obtained judgment therein. Held, that they could not thereafter maintain an action of trespass for the excessive cutting of timber.</p> <p>2. Where a judgment was pleaded as an equitable defense by three defendants, but was not pleaded in the separate answer of the fourth, it was at least admissible in behalf of the former; and if the plaintiffs wished to avail themselves of the defect in the latter’s answer the objection should have been specific, so that it might have been obviated by amendment.</p>

<p> Curtesy: Deed to married woman construed. </p> <p>Land was conveyed to a married woman “to have and to hold . . , to her sole and separate use, free from the interference or control of her said husband, or any husband, and her heirs and assigns, to her and their only proper use and benefit forever.” Held, that upon the death of the grantee her husband did not become tenant by the curtesy in the premises.</p>

<p>APPEAL from the Circuit Court for Chippewa County.</p> <p>The case is stated in the opinion.</p> <p>to the point that when both parties have requested the court to direct a verdict there is no question of fact to be reviewed by the appellate court, as this is virtually an agreement of the parties to submit the question to the judge, and if there is any evidence to uphold his decision it will be sustained, cited Dillon v. Goolccroft, 90 N. T. 649; Goodwin v. Bunzl, 6 Civ. Pro. E. 226.</p>

<p> Railroads: Fires negligently set: Damages: Evidence. </p> <p>1. The question being as to the damage done to land by a fire, properly-qualified witnesses may state to the jury in what, in their opinion, the value of the land consisted, and may give their opinion as to the value of standing timber thereon, as one ground of their estimates.</p> <p>2. The evidence in this case (showing among other things that, at the time and place of the setting of the fire, one of the defendants’ engines was passing along their railroad track at a speed of from forty-five to fifty miles an hour; that it was an exceedingly dry time, and sparks and cinders which kindled other fires along the track were issuing from such engine) is held to support a verdict that the fire was set through the negligence of defendants’ employees in running such engine.</p>

APPEALS from tbe Circuit Court for Shawano County. The facts are sufficiently stated in the opinion. Both parties appeal from the judgment.

<p> Injury to land by excavating street: Evidence: Unrecorded plat: Excessive damages. </p> <p>1. In an action against a city for the injury to land caused by the unlawful excavation of the street in front of it, a plat of the land into building lots may be examined and referred to by witnesses for the purpose of showing the adaptability of the land to be so laid out into lots, even though such plat has not been legally recorded.</p> <p>2. Such a plat having been so used and referred to by witnesses it was not error to formally receive it in evidence during the argument of counsel to the jury.</p> <p>3. There being no proof or offer of proof of a legally established grade, it was proper to reject evidence of the correspondence of the excavation and established grade, or that a profile showed such grade, and to reject the offer of such profile in evidence.</p> <p>4. Where the damages awarded for an injury to land are less than the estimates of some of the witnesses, and there is no apparent preponderance of evidence against the verdict in that respect, this court will not reverse the judgment on the ground that such damages are excessive.</p>

<p> (1) New trial: Discretion: Misdirection to jury: Newly discovered evidence. (2J Extending time fixed by rule for talcing proceeding. </p> <p>1. In an action by an attorney to recover for his services in certain suits the defendant alleged that he had never employed the plaintiff or authorized his employment, that his attorney in such suits was one L. whom he had fully paid, and .that whatever services the plaintiff rendered were at the instance of L. A verdict for the defendant was set aside on the grounds of a misdirection to the jury and newly discovered evidence. The misdirection consisted in charging that if the plaintiff loolced to L. for payment then he could not recover, instead of charging that if he agreed to loolc to L., etc. The new evidence consisted in the testimony of a witness who heard the defendant authorize L. to employ the plaintiff. On the trial the only evidence tending directly to prove such authority had been that of L. himself. Held, that there was no abuse of discretion in granting the new trial.</p> <p>2. The circuit court rules having been made in pursuance of the statute, the time limited thereby within which any proceeding must be taken may be extended, after it has expired, under sec. 2831, R. S.</p>

The plaintiff presented a claim in the Milwaukee county court against the estate of John Gorman, the defendant’s intestate, for services rendered by her as his housekeeper from January 1, 1879, to the time of his death, which occurred March 26, 1887. The county court disallowed the claim.

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

The following statement of the case was prepared by Mr. Justice Cassoday: This action was commenced June 8,1887. The complaint alleges two causes of action. One is a breach of a promise to marry, made on or about June 1, 1886, for which the plaintiff claims $2,000 damages.

The following statement of the case was prepared by Mr. Justice Cassoday: This action is brought for the purpose of having a patent from the state, and certain deeds of forty acres of land described, declared null and void, and to have the plaintiff adjudged to be the owner thereof in fee with the right of possession, with a prayer for general relief.

This action was brought to recover a balance due the plaintiff for work and labor in skidding and hauling certain logs for the defendant. The complaint alleges all the facts essential to entitle the plaintiff to a lien on the logs for such balance, pursuant to the statute in that behalf, but no such relief is demanded. The only relief prayed is a personal judgment against the defendant for the balance claimed.

APPEALS from the Circuit.Court for Outagamie County. The action is to set aside, as clouds upon the plaintiff’s title to certain land, a judgment in the case of W. II. Webster against J. L. Pfau, a sheriff’s deed, and a conveyance by the grantee in such sheriff’s deed.

<p>APPEAL from the Superior Court of Milwaukee, County.</p> <p>The case is stated in the opinion.</p> <p>In addition to cases referred to in the opinion, they cited Hughes v. Antietam Mfg. Co. 31 Md. 318-832; Oarling v. Baechtel, 41 id. 305; Hále v. Sanborn, 16 Neb. 1; Shurtz v. S. c& T. H. B. Ob. 9 Mich. 269; Galveston Hotel Oo. v. Bolton, 4r6 Tex. 633.</p> <p>By his contract of subscription the defendant promised payment for his shares without any condition, and thereby waived the condition precedent which would otherwise have been implied. SJcowhegan <& A. H. Go. v. Kinsman, 77 Me. 370; Bail v. Mt. S. O. B. Go. 13 Bush, 32, 35. By paying to the corporation without objection $1,250 of the call'or assessment, leaving but $325 due thereon, the defendant estopped himself from denying liability for such balance. Intermountain Pub. Go. v. Jack,, 5 Mont. 568, 576; Boston, B. di G. B. Go. v. Wellington, 113 Mass. 79, 85, 86; Musgrave v. Morrison, 54 Md. 165; Silpher v. Earhari, 83 Ind. 173.</p>

<p> Highways: Injury from defect: Notice: Description of place. </p> <p>1. The notice of an injury from a defective highway, required by sec. 1339, R. S., should point as directly and plainly to the place of the injury as is reasonably practicable, having regard to its character and surroundings.</p> <p>2. A notice stated that the place of an injury was at a point in the highway about where a certain section line crossed the road, and where the town authorities had, on the day of the accident, placed several loads of gravel which were left piled up in the center of the highway. The evidence showed that gravel had been placed along the highway at different places for about twenty rods each way from said section line, and that the injury in fact occurred about 394 feet from said line. Held, that the notice was insufficient.</p>

<p>APPEAL from the Circuit Court for Booh County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>This action is to recover for injuries sustained by the plaintiff while traveling along on Wall street, in Janesville, where the same is crossed by the defendant’s railway tracks, on the afternoon of November 18, 1887, by being negligently and carelessly run over by a locomotive engine of the defendant, by reason of which he claimed $50,000 damages. The negligence and carelessness thus alleged related to the operating the engine, its unlawful rate of speed, the failure to blow the whistle or ring the bell, the absence of guards or gates or watchman at the crossing, or any signboard with the inscription “ Look out for the Cars.” The answer was a general denial and an allegation of contributory negligence on the part of the plaintiff.</p> <p>At the close of the trial the jury returned a special verdict to the effect: (1) That the engine, as it approached the place of the accident, was being run at a greater rate of speed than sis miles an hour, (2) without the whistle being blown, (8) and that such failure to blow the whistle directly contributed to produce the injur}', (4) notwithstanding the engine bell was rung before and while the engine was crossing Wall street; (5) that there was no gate erected and maintained on Wall street, (6) although it was necessary for the safety of human life, and to protect from injury persons lawfully passing along that street, that a gate should be erected and maintained at that crossing, (7) and the failure to so erect and maintain the same directly contributed to produce the injuries in question, (6a) and in such failure the defendant was guilty of negligence, (65) and such negligence contributed directly to produce such injuries ; (8) that there was no flagman placed at that crossing to warn travelers of the approach of trains, (9) notwithstanding it was necessary for the safety of persons lawfully traveling that street that a flagman should be placed at that crossing; (9a) and the defendant was negligent in not placing a flagman there, (95) and such negligence directly contributed to produce the injuries in question; (10,11) but there was'no ordinance of the city of Janesville requiring such gate or such flagman; (12) that there was no signboard put up at said crossing with the inscription thereon, “Look out for the Cars;” (13) but such absence of such sign-board did not directly contribute to produce said injuries; (14) that at the time of such injury, the plaintiff was a bright, active, intelligent boy, for one of his age, (15) and comprehended that the crossing of the railway track at that place was attended with danger, (16) but did not see the engine approaching the place of the accident before attempting to cross the track, (1Y) although shortly before attempting to cross he looked in the direction from which the engine approached; (18) but immediately prior to the time he started to so cross his attention was attracted by a train moving south upon the Chicago, Milwaukee & St. Paul track, at which he was then looking; (19) that when within twenty-five feet of the defendant’s main track the plaintiff could have seen the coming engine at a distance of 250 feet south of him, (20) and the engineer in. charge of the engine could have seen the plaintiff on Wall street, if standing within twenty-five feet of the main track, when the engine was 250 feet south of him; (21) that the engineer was about fifty feet from the plaintiff, when he first saw him, (29) and then the left portion of the plaintiff’s body was turned towards the engineer; (24) and the engine at that time was on or near the center of Wall street; (22) and the plaintiff then was from two to three feet from the defendant’s main track, (25) and walking towards it, (35) upon the planking for teams, (30) with his left side turned towards the engineer; (26) and at that time there was nothing in the action of the plaintiff which indicated to the engineer that the plaintiff was about to stop until the engine passed, before trying to cross himself; (28) and when the engineer saw that the plaintiff was' about to cross the track he did all in his power to stop the engine and save the boy from injuiw; (2Y) and when the engineer first put forth any effort to save the plaintiff from injury he was just crossing the track; (33) that after the engineer attempted to arrest its progress the engine moved about thirty-five feet; (23) that when the plaintiff was struck by the engine he tvas from two to three feet south of the south side of the north -sidewalk of Wall street; (31) that the defendant’s employees were guilty of negligence or want of care which directly contributed to produce the injuries which the plaintiff sustained; (31$) and such negligence or want of care consisted —first, in not keeping a proper lookout to see that the track was clear; secondly, in running at a greater rate of speed than six miles an hour; thirdly, in not blowing the whistle to warn the plaintiff of his imminent danger; (32) that the plaintiff did not in any respect fail to exercise ordinary care, which directly contributed to produce the injuries which he sustained; (34) that the plaintiff has sustained $30,000 damages by means of the injuries which he has received. The jury also returned the following general verdict, to wit: “We, the jury, find for the plaintiff, and assess his damages at the sum of ($30,000) thirty thousand dollars.” i</p> <p>The defendant moved to set aside the verdict, and for a new trial, upon ten specific grounds unnecessary here to mention, which motion was overruled; and thereupon the trial court ordered judgment in favor of the plaintiff on the special verdict for the amount found by the jury. From the judgment entered thereon accordingly, with costs taxed at $620.99, the defendant appeals.</p> <p>To the point that to 'submit to the jury upon the testimony in this case the question whether a flagman should have been stationed at the crossing, and to assign his absence as negligence on the part of the company, was erroneous, they cited, besides cases cited in the opinion, Telfer v. E. B. Go. 30 N. J. Law, 188, 194; State v. P., W. dk B. B. Go. 47 Md. 77; Stubley v. L. & Ff. W. B. Go. L. R. 1 Exch. 13; Cliff v. M. B. Go. L. R. 5 Q. B. 258; Weber v. E. T. G. & II. B. B. Go. 58 N. Y. 451; McGrath v. N. T. O. dt E. B. B. Go. 59 id. 468; Sutherland v. E. V. O. & E. B. B. Go. 9 J. & S. 17, 29; Palcalinshy v. E. Y. G. (& E. B. B. Go. 82 N. Y. 424, 427; Eeaney v. L. I. B. Go. 112 N. Y. 122.</p> <p>To- the point that the damages were not excessive, they cited Schmidt v. M. & St. P. B. Co. 23 Wis. 186; Hemmingway v. C., M. da St. P. B. Co. 67 id. 668; Berg v. C., M. dé St. P. B. Co. 50 id. 419; Schultz v. C., If. da St. P. B. Co. 48'd. 375; Louisville da E. B. Co. v. Bob-erts, 8 S. W. Rep. (Ky.), 459; Western da A. B. Co.v. Young, 7 S. E. Rep. 912; Solen v. Y. <& T. B. Co.. 13 Rev. 106; Harr old v. H. Y. E. B. Co. 24 Hun, 184; Schultz v. T. A. B. Co. 46 R. T. Super. Ct. 211; Topeha da S. F. B. Co. v. Moore, 31 Kan'. 197; Funston v. G, B. 1. da P. B. Co. 61 Iowa, 452; Quinn v. L. 1. B. Co. 34 Hun, 331; Alberti v. N. Y., L. E. da W. B. Co. 43 id. 421; Eetchum v. T. da P. B. Co. 3S La. Ann. 777.</p>

<p>ERROR to the Circuit Court for Dunn County.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p> Embezzlement of stoch certificate: Evidence. </p> <p>1. The secretary of a corporation had given his note to it in payment for certain shares of stock, and had deposited the stock certificate as collateral security. Afterwards, having as secretary the custody of such certificate, he pledged it as collateral security to his note to a bank. There was no evidence that at the time of so doing he claimed to be the absolute owner of the certificate, or that he attempted to pledge the interest of the corporation therein; and the stock was not transferred on the books. Under secs. 1751, 1756, R, S., the corporation had a lien upon the stock for all debts due to it from the owner, continuing until the stock should be transferred on the books and such owner discharged. Held, that the secretary was not guilty of an embezzlement of the certificate.</p> <p>2. Evidence that the private accounts of the secretary with the corporation or with other parties was overdrawn was not admissible to show his motive in pledging the certificate.</p>

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

<p>ERROR to the Circuit Court for Fond du Lao Count}?.</p> <p>The case is sufficiently stated in the opinion.</p> <p>In addition to cases referred to in the opinion, they cited as to communications between husband and wife: Kdly v. Drew, 12 Allen, 107, 109, and cases cited; Gomm. v. Sparks, 7 id. 534; 2 Starkie on Ev. (4th Am. ed.), 709. As to communications between attorney and client: Wilson v. Eastall, 4 T. R. 759; Green-ough v. Gaskéll, 1 Mylne & X. 102, 103; Phillips on Ev. 170-2; Hatton v. Robinson, 14 Pick. 421-2; Brandt v. Klein, 17 Johns. 335; Parker v. Garter, 6 Am. Dec. 513; 2 Best on Ev. 985; Parker v. Yates, 12 Moore, 520; Anonymous, 8 Mass. 370; State v. Squires, 1 Tyl. Rep. 147; Pearse v. Pearse, 11 Jur. 52.</p> <p>cited Wood v. People, 59 N. Y. 117, 123; Hoe dem. Gourtail v. Thomas, 9 B. & C. 288; Mitchell’s Case, 12 Abb. Pr. 249; 1 Thompson on Trials, sec. 301; People v. Davis, 52 Mich. 569; Gomm. v. Griffin, 110 Mass. 181; State v. Center, 35 Yt. 378; State v. Buf-fington, 20 Kan. 599; State v. Hoyt, 47 Conn. 518; 1 Greenl. on Ev. sec. 254a; 1 Whart. on Ev. (3d ed.), secs. 427-586.</p>

<p>Criminal Law. (1) Murder in third degree. (%) Insanity: Drunkenness: Instructions to jury.</p> <p>1. On a trial for murder the evidence showed that the fatal shot was either fired at a stove and glanced therefrom hitting the deceased, or was fired directly at him, and there was no evidence that the accused intended to hit him in any place other than he did, so as to warrant a finding that his intent was to do great bodily harm but not to effect death. The accused was not, at the time, engaged in the commission of any other felony. Held, that a conviction of murder in the third degree (sec. 4345, E. S.) was not warranted.</p> <p>2. On a trial for murder, there being evidence of drunkenness and insanity, and of an injury to the defendant’s head in childhood, it was error to charge the jury, in effect, upon the special issue of insanity, that although they should find that at the time of the killing the normal exercise of brain function by the defendant was totally suspended, or that his mind was diseased to such a degree of madness as would otherwise relieve him from responsibility, or that he was actually insane, yet if such mental condition was directly or even remotely caused by voluntarily drinking intoxicating liquors, or even if such insanity was produced by other causes combined with such voluntary drinking, still they must find that the defendant was responsible for his conduct,.and therefore sane.</p> <p>See note to this ease in 43 N. W. Kep. 344. — Bep.</p>

<p>APPEAL from the Circuit Court for Dodge County.</p> <p>This action was commenced May 18, 1887, and was brought to foreclose a mortgage executed October 23,1871, to Henry A. "Whitney, by the defendant Ody W. Traynor, and by his father and mother, Phillip and Elizabeth Tray-nor, to secure the payment of a promissory note of the same date for $2,700, and ten per cent, interest, made by the said Ody W. Traynor to said Henry A. "Whitney. The mortgage covers 145 .acres of land, forty acres of which was the homestead of Phillip Traynor, and the residue belonged to Ody W. The plaintiffs, Alonzo H. Whitney and John J. Sutton, claim to be the assignees and owners of such note and mortgage. Phillip and Elizabeth Traynor both died intestate before this action was commenced, and all of the other defendants, except Eugene S. Griswold, are their heirs or the husbands of their heirs. The defendant Griswold claims an interest in the land covered by the mortgage, except such homestead, under a judgment recovered by him against Ody W. Traynor, March 8, 1887, and a sale thereof made May 25, 1887, to said- Griswold, by virtue of an execution issued on such judgment.</p> <p>The complaint is in the usual form of complaints in such actions. The defendants Ody W. Traynor and Griswold answered separately, both alleging that the note and mortgage had been fully paid. The heirs answered an agreement between O. W. Traynor and H. A. "Whitney, alleged to have been made when the mortgage was executed, that when $700 should be paid on the note Whitney would release the homestead of Phillip Traynor from the lien of the mortgage.</p> <p>A trial of the cause resulted in findings (among others)that there was due and unpaid on the note and mortgage $2,021.32, and interest thereon at ten per cent, from April 22, 1878. This sum is less than is claimed in the complaint. Also that the homestead of Phillip Traynor should be discharged from the lien of the mortgage, and that the interest of the defendant Griswold in the 105 acres by virtue of the lien of his judgment and the execution sale is paramount to the lien of the plaintiff’s mortgage. The court also awarded costs to Griswold against the plaintiffs.</p> <p>Judgment having been entered pursuant to such findings, the plaintiffs appeal from the portions thereof which adjudge (1) that the amount due on the mortgage debt is less than is claimed in the complaint; (2) that the homestead forty be released from the lien of plaintiff’s mortgage; and (3) that the interest of Griswold in t'he 105 acres is paramount to. the lien of such mortgage; also from the award of costs to Griswold.</p> <p>The findings of the circuit court are very voluminous, and it is unnecessary to state them in detail. Sufficient reference is made to them in the opinion, as well as to the evidence, to give a correct understanding both of the find-’ ings and evidence so far as they affect the questions presented for determination by this appeal.</p> <p>To the point that neither the’ mortgagor nor the mortgagee could change the application of the proceeds of the crops as made in the leases, they cited Munger on Application of Payments, 23, 70; Marvin v. Vedder, 5 Cow. 671; Truscott v. King, 6 N. Y. 147-63; Thayer v. Kenton, 4 Mich. 192; Sheldon v. Bennett, 44 id. 634; 'Thompson v. Hudson, 6 Ch. App. Cas. 320; Miles v. Ogden, 54 Wis. 573.</p>

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

<p>APPEAL from the Circuit Court for Dane County.</p> <p>The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion:</p> <p>This action was brought by the Pittsburg Mining Company for the purpose of recovering $70,000 of money had and received by the defendants for the use of the company. The material allegations in the complaint are:</p> <p>(1) That in February, 1887, the defendants conceived the idea and agreed together to promote the organization of the plaintiff corporation, for the ostensible purpose of carrying on the business of mining iron on the Gogebic range, so called, in the state of Michigan, but for the real purpose of cheating those who might deal with said corporation, and by so doing enrich themselves.</p> <p>(2) That in pursuance of such scheme the defendants obtained for the purpose of purchase or temporary control a mining option on said range, conferring the right to prospect, explore, and mine for iron on a tract of land described in the complaint. This option was owned by certain parties named in the complaint, and the price demanded by them for it was $20,000, and no more.</p> <p>(3) That having obtained the control of such option for the purposes of the corporation, the defendants proceeded to obtain subscriptions to the capital stock of the proposed corporation, to raise the money to buy it; that to induce subscriptions to said capital stock the defendants falsely and fraudulently represented to divers persons, and to all persons who became and now are stockholders in said corporation, that the price demanded by the owners of said option was $90,000,.and that it could not be bought for less; that the defendants were themselves desirous of buying it, but were unable pecuniarily to pay so much money, but desired to organize a corporation to purchase it; that they would themselves become stockholders in the corporation to the extent of their ability to pay for the same; that there was no speculation in the purchase price; that the defendants were making nothing out of it,— not even their expenses, unless the corporation saw fit to reimburse them,— except what all stockholders would make alike through the operation of the proposed corporation in mining the ores covered by said option.</p> <p>(4) The defendants also represented that for the purpose of the successful operation of the business of mining on said tract of land it would be necessary for the corporation to raise the sum of $100,000 in money,— $90,000 for the purpose of purchasing the option from the owners thereof, and $10,000 to be put in the treasury of the company for the purpose of developing the mines.</p> <p>(5) In furtherance of said fraudulent scheme the defendants drew up, and by said fraudulent representations procured to be signed, a subscription paper, of which the following is a copy: “The undersigned hereby agree with A. II. Main, of the city of Madison, Dane county, Wisconsin, the owner of a mining option upon, in, and to all of the north half of the southwest quarter of section number 11, town 47, range 45 east of the Michigan meridian, situate, lying, and being in the-county of Ontonagon, state of Michigan, and with each other, that they will take of and from the said A. H. Main the number of shares of non-assessable paid-up stock in the Pittsburg Mining Company, proposed to be formed, set opposite their respective names, and pay for the same the sum of $2.50 per share, said payment to be made as soon as the company is duly incorporated under and by virtue of either the laws of the state of Michigan or Wisconsin, and the said .A. II. Main shall assign and transfer over to said corporation, and give and convey to said corporation, a perfect title to the same said option. It is understood that the capital stock of said corporation shall be $1,000,000, in 10,000 shares of $25.00 each. It is also understood and agreed that a shaft has been sunk upon the land covered by said option, to a depth of about seventy feet, and that there is in sight, at such depth below the surface of the land so covered by said option, ten thousand tons of iron ore.”</p> <p>(6) The complaint then alleges that this subscription paper was signed by a large number of persons, agreeing to take shares in a sufficient amount in the whole to cover the entire proposed stock of the projected corporation, to wit, $1,000,000.</p> <p>(7) Immediately after said stock had been all subscribed, and on the 21st day of March, 1887, the defendants organized a corporation in conformity to the laws of this state, under the name of the “ Pittsburg Mining Company” now the plaintiff in this action. The defendants were the only original incorporators; and on the 22d day of March, 1887, the first meeting of said corporation was held at Madison, in this state. All the defendants were present at such meeting. The defendant Spooner -was elected president, and the defendant Main treasurer. That about the time of said meeting, and in furtherance of said fraudulent scheme, the defendant Mam,, with the advice and procurement of the other defendants, Spooner and Oaider/, but in the joint interest of all of them, subscribed for the entire stock of said corporation, viz., $1,000,000, except one share each of $25, which were taken by the defendants Spooner and Oaldey; and thereupon at the same meeting, by the unanimous vote of the defendants as sole corporators and directors, the following resolution was adopted, viz.: “ Resolved, that in accordance with the subscription of A. H. Main to the capital stock of said company, the president and secretary hereof issue to him, or to such person or persons as he may direct, and in such number of shares as he may direct, all of the said stock, except two shares thereof, one of which is held by said Phillijp L. Spooner, Jrn and the other by said F. IF. OaJcley; the said stock to the said Main to be issued as paid up in full, in consideration of his making and delivering to the president of the said corporation, for the said corporation, an assignment in writing, duly executed, of an option which he now owns on the north half of the southwest quarter of section eleven (11), township forty-seven (47), range forty-five (45) west, On-tonagon county, Michigan.”</p> <p>(8) It is further alleged in the complaint that none of the stock subscribed for by said Main was ever issued to him, except the sum of $25,000 now held by defendant Main. That although he conyeyed to the corporation the mining option before mentioned in nominal payment for all of the stock of said corporation, neither the defendant Main nor any of the defendants ever had or held any valuable interest in said option above the price of .$20,000, which had to be paid to the owners thereof. That, said option having been procured and being held by the defendants, or by the defendant Main for them, as promoters and trustees of said corporation, whatever value or interest they possessed or could possess therein inured to and was the property of said corporation, when formed, without advance in price or other condition; and it is further alleged that $20,000 was the full value of said option.</p> <p>(9) The complaint further alleges that the defendants, in furtherance of their fraudulent scheme, after said subscriptions were obtained caused said option to be conveyed to said Main without any consideration; then caused the corporation to buy it from, him for substantially its entire capital stock, caused the agreement to take shares in the projected company, as hereinbefore set.forth, to read as an agreement to take them of said Main and pay him for them, instead of the company, and then issued the shares so subscribed for to the several persons who, by the agreement aforesaid, had agreed to take them; and collected from them the sum of $100,000, paid the owners of the option $20,000 for the same, kept $10,000 in the treasury of the company, and fraudulently converted the remaining $70,000 to their own use, in violation of their duty to the company, as its promoters, trustees, and directors; whereby the plaintiff has sustained a loss of $70,000.</p> <p>(10) The complaint further alleges that in procuring control of the said mining optipn, in organizing the corporation, securing subscriptions to the capital stock, collecting moneys thereon, paying for said option to the owners- thereof,, having it conveyed to the defendant Main and by him to-the plaintiff corporation, and in all other matters touching the organization of the plaintiff corporation and the purchase of said option, the defendants became and were the promoters, agents, and trustees of the plaintiff, and, while so acting, they could not, in law, by any pretext, pretense, or contrivance gain any personal profit or advantage over the plaintiff, or make any valid contract with it to its prejudice, and to further their individual advantage.</p> <p>(11) It is further alleged in the complaint that the amount paid to the owners of said option by the defendants in behalf of the plaintiff was the sum of $20,000; that the amount obtained by the defendants from the corporation on the fraudulent pretext of said payment was $90,000,' $70,000 of which the defendants have diverted from the company and fraudulently appropriated to their own use, and for this amount they are jointly indebted to the plaintiff as for so much money had and received to its use, and the plaintiff demands judgment for the said sum of $70}000, with interest and costs.</p> <p>To this complaint the defendants demurred, and allege as grounds of demurrer: (1) That the plaintiff has not the legal capacity to sue; (2) that the complaint does not state facts sufficient to constitute a cause of action. Upon the argument of the demurrer in the circuit court, the court sustained the demurrer, and from the order sustaining the" demurrer the plaintiff appealed to this court.</p> <p>For the appellant there were briefs by Tenney, Bashford c& Tenney and John M. Olin, and oral argument by Mr. Olin. They argued, among other things, that the defendants were promoters of the plaintiff corporation from the moment they began to act in its behalf in effecting its organization, and as such promoters could derive no profit from their dealings in that relation, except with the consent of all the stockholders upon a full disclosure of all the facts. They stood in a fiduciary relation to the company, and the utmost good faith was required of them. Morawetz, Priv. Corp. § 545; Simons v. Vulean 0. & M. Go. 61 Pa. St. 202; Short v. Stevenson, 63 id. 95; JDensmore Oil Co. v.'Densmore, 64 id. 43; McElhenny's Appeal, 61 id. 18S; St. Louis & TI. S. M. Go. v. Jackson, 5 Cent. L. J. 317; Chandler v. Bacon, 30 Fed. Kep. 538; Getty v. Devlin, 54 FT. Y. 403; Atwool v. Merryweather, L. E. 5 Eq. 464; Bank of London v. Tyrrell, 5 Jur. FT. S. 924; Bagnall v. Garitón, L. E. 6 Ch. Div. 371; Emma S. M. Go. v. Grant, 11 id. 918; Whaley B. O. P. Go. v. Green, L. E. 5 Q. 33. Div. 109; Nexo Sombrero Phosphate Go. v. Erlanger, L. E. 5 Ch. Div. 73; Erlanger v. New Sombrero P. Go. L. E. 3 App. Cas. 1218; Phosphate Sewage Go. v. Hartmont, L. E. 5 Ch. Div. 395; Fawcett v. Whitehou.se, 1 Euss. &M. 132; 16 Am. Law Eev. 687; Thomp. onLiab. Off’rs Corp. 218-224.</p> <p>The plaintiff’s cause of action does not rest upon or grow out of any illegal contract. Conceding that the stock of the corporation was illegally issued, the plaintiff nevertheless is a corporation having a legal existence and capable of contracting-debts and of suing and being sued. Though the statute declares that stock issued for a consideration less than the par value thereof shall be void, such stock is not void for all purposes; and the holder of such stock, notwithstanding the statute, is a shareholder in a corporation existing under the laws of the state. Parsons v. Hayes, 14 Abb. N. C. 428. If this company had contracted debts, its creditors could compel each of the shareholders to pay into the companjq for a trust fund, the difference between the amount paid on their stock and the par value thereof, notwithstanding such stock was issued as full-paid, non-assessable stock; and in such proceeding the shareholders could not successfully contend that they were not obliged to pay, on the ground of defects or irregularities in the issuing of the stock or in the organization of the company. Upton v. Ilansbrough, 3 Biss. 417; Payson v. Withers, 5 id. 269; Luf-lin & P. P. Go. v. Sinsheimer, 46 Md. 315, 24 Am. Rep. 525; Saovill v. Thayer, 105 U. S. 143; Upton v. Tribilcoel91 id. 45; Cook on Stock. Liab. sec. 42. The plaintiff is at least a corporation cle facto, and its existence cannot be called in question collaterally. The defendants incorporated this .compan}'-, and contracted Avith it. They are, therefore, es-topped in a suit against them to deny its existence. Chubb v. Upton, 95 U. S. 667; McGlinch v. Sturgis, 72 Me. 288; Smith v. Sheeley, 12 Wall. 358; Whitney v. Wyman, 101 U. S. 392; Hat. Panic v. Matthews, 98 id-. 621; Gartside Goal Go. v. Maxwell, 22 Eed. Rep. 197; Merchants' & M. Panic v. Stone, 38 Mich. 779; People v. La Pue, 67 Cal. 526; Hudson v. Green Hill S. Oorp. 113 Ill. 618. Where an illegal contract has been completely performed and the money growing out of the transaction is due to two or more persons and has been received by one of them for himself and his associates, an action will lie for such money in behalf of the party to whom it is coming, either in whole or in part. Faikney v. Peynous, 4 Burr. 2070; Petrie v. Ilannay, 3 Term E. 419; Ex parte Bulmer, 13 Yes. 316; Armstrong v. Toler, 11 Wheat. 258; Owen v. Davis, 1 Bailey, 816; Des-tapies v. Ingraham, 5 Pa. St. 71, 81; Sharp v. Taylor, 2 Phill. Ch. 801; MeBlair v. GiUbes, 17 How. 232; Ingram v. Mitchell, 30 Ga. 547; Brooks v. Martin, 2 Wall. 70; Gilliam v. Broion, 43 Miss. 641; Woodworth v. Bennett, 43 M. Y. 273; Planters' Bank v. Union Bank, 16 Wall. 483; De Leon v. Trevino, 49 Tex. 89; Lewis v. Alexander, 51 id. 578; Lleckman v. Swartz, 50 Wis. 267; Western U. Tel. Go. v. If. P. P. Go. 1 McCrary, 558; Burke v. Flood, 6 Sawy. 220, 226-7; Wann v. Kelly, 2 McCrary, 629; S. G. 5 Fed. Eep. 584; Pfeiffer v. Maltby, 54 Tex. 454, 455; Wells v. McGeoch, 71 Wis. 196, 235-6. But defendants did not obtain this money by virtue of any illegal agreement between them and the company or the shareholders, but solely by means of their own fraud, and hence they are liable. Kie-wert v. Pindskopf, 46 Wis. 4S1; Clemens v. Clemens, 28 id. 649; Sprye v. Peynell, 21 L. J. Ch. 633; Baehr v. Wolf, 59 Ill. 471.</p> <p>The defendants were the agents of the plaintiff in receiving the money in question, and it is no defense as to them that the money paid them for their principal -was the fruit of an illegal transaction. Tenant v. Elliott, 1 Bos. & Pul. 3; Farmer v. Pussell, id. 296; Thomson v. Thomson, 7 Yes. Jr. 470; Anderson v. Moncrief, 3 Desaus. 124; M'Allister v. Hoffman, 16 Serg. & E. 147; Berkshire V. Evans, 4 Leigh, 223; Bousfield v. Wilson, 16 Mees. & W. 185; Lngram v. Mitchell, 30 Ga. 547; Murray v. Wanclerbilt, 39 Barb. 140; Daniels v. Barney, 22 Ind. 207; Merritt v. Millard, 4 Xeyes, 208; Douville v. Merrick, 25 Wis. 688; Gilliam v. Brown, 43 Miss. 641; U. S. Exp. Co. v. Lucas, 36 Ind. 361, 367; Will-son v. Owen, 30 Mich. 474; Kiewert v. Pindskopf, 46 Wis. 481; Cook v. Sherman, 20 Fed. Rep. 167; Tate v. Pegues, 28 S. C. 463.</p> <p>They contended, inter alia, that admitting that defendants were the agents of the appellant to sell this stock, and that all the money derived from the sale belonged to it, still it cannot recover because the contract on which it bases its right to the recovery is illegal and contrary to the positive terms of the statute. Sec. 1753, R. S.; Clarke v. Lincoln L. Go. 59 Wis. 655; Lemon v. Grosshopf, 22 id. 447; Greenkood on Public Policy, 54, 100; Miller v. Larson, 19 Wis. 463; Fargo v. Ladd, 6 id. 106; Bump on Fraud. Conv. (3d ed.), 444. The agreement to take stock in the corporation, as well as the resolution directing that the stock of the company should be issued to Main, was binding on all those who were parties thereto. Flagler E. M. Go. v. Flagler, 19 Fed. Rep. 468; Langdon v. Fogg, 18 id. 5; S. G. 14 Abb. N. C. 435; Foster v. Seymour, 23 Fed. Rep. 65; Anderson's Gase, L. R. 7 Ch. Div. 75; Be Ambrose L. T. di G. M. Go. 14 id. 390; Be Gold Go. 11 id. 701; Parsons v. Ilayes, 50 N. T. Super. Ct. 29; S. 0.14 Abb. N. C. 419; Cook on Stock. Liab. secs. 27, 47; 1 Morawetz, Priv. Corp. secs. 290, 291, 625. It may well be doubted whether any fraudulent representation as to what the property cost can be ground for an action. Southern L>. Go. v. Silva, 125 U. S. 247; Ilemmer v. Cooper, 8 Allen, 334. See, also, St. Louis, Ft. S. & W. B. Go. v. Tiernan, 37 Kan. 606; Albion S. <& W. Go. v. Martin, L. R. 1 Ch. Div. 580; Lady well M. Go. v. Brookes, 35 id. 400. Courts of justice will not interfere in decreeing the distribution of proceeds derived from an unlawful contract. Miller v. Davidson, 8 Ill. 518; Heustadt v. Hall, 58 id. 172; Graft v. McGonnoughy, 79 id. 346; Lane v. Thomas, 37 Tex. 157; Bead v. Smith, 60 id. 379; Anderson v. Powell, 44 Iowa,'20; Boyd'S. Barclay, 1 Ala. 34; Robinson v. Patterson, 39 N. W. Eep. (Mich.), 21; Holman v. Johnson, 1 Cowp. 343.</p>

<p>APPEAL from the Circuit Court for Walworth County.</p> <p>The facts will sufficiently appear from the opinion.</p> <p>They contended, inter alia, that the trust deed is not a mere incident to the debt, but has in many respects an independent existence. In this case it was not given simultaneously with the execution of the notes, nor by the maker of the notes. The trustee is not the creditor or money lender; he is a quasi official, responsible to the mortgagor and the beneficiaries alike. By the voluntary act of the mortgagor this trustee has been assigned certain active duties in case of default, all of which are to be performed in "Wisconsin, where the property is situated, where the mortgagor resides, and where the moneys were intended to be used; and he is bound to perform these duties independently of any subsequent dealings between the indorser and the beneficiaries. 1 Jones on [Mortgages, 62; 2 id. 1769-1775; Goodrich v. Milwaukee, 24 Wis. 422; Marvin v. Titsworth, 10 id. 320. In determining by what law the contract is governed the true inquiry is as to the intention of the parties. And the fact that the contract would not be held invalid by the laws of the state where the lands are situated, where the mortgagor resides, and where the money is intended to be used, furnishes solid ground for an exception to the general rule. Newman v. Kerslum, 10 Wis. 333; lliehards v. Globe Bank, 12 id. 697; Vliet v. Gamp, 13 id. 208; Fisher v. Otis, 3 Pin. 78; Chapman v. Robertson, 6 Paige, 627; Liverpool S. Oo. v. Phoenix Ins. Oo. 129 U. S. 447; Lloyd v. Guibert, 6 Best & S. 100. The trust deed itself cannot become tainted by a subsequent usurious sale of the accompanying notes. Usury in discounting the paper may operate to reduce the recovery, but does not invalidate the mortgagor’s contract with the trustee. Corporations are not within the usury laws of New York, Wisconsin, or Illinois. Curtis v. Leavitt, 15 N. T. 85, 154; Tyler on Usury, 412, 413, 411; Hurd v. Marple, 2 Bradw. 402. As to the maker, then, these notes cannot be avoided on the ground of usury No contract security, valid in its inception, can be tainted or invalidated by any subsequent-usurious transaction. Tyler on Usury, 370, 401; Meshlee v. Van Doren, 16 "Wis. 319; Lee v.. Peolcham, 17 id. 383; Ü‘?iion Nat. Bank v. Wheeler, 60 N. T. 612. A contract of indorsement may be usurious, but the note and security perfectly lawful and binding. Cowles v. Mo Vichar, 3 "Wis. 725; Bock Co. Bank v. Wooliscroft, 16 id. 22; Armstrong v. Gibson, 31 id. 65.</p> <p>To the point that our statute," providing that foreign statutes may be pleaded by titles and date of passage, does not require them to be so pleaded; they cited 1 Abbott’s Forms, 387, and cases; Curtis v. Masten, 11 Paige, 16; Sells v. Haggard, 21 Neb. 357; Louisville, N. A. c& O. B. Co. v. Shires, 108 Ill. 617; Hyman v. Bayne, 83 id. 258-265; Bliss on Code PI. secs. 183, 202, 304; 1 Greenl. Ev. sec. 486; Newman v. Kershaw, 10 Wis. 333.</p>

<p>APPEAL from the Circuit Court for Kenosha County.</p> <p>The complaint, briefly stated, alleges that on or before January 18, 1886, a certain mare of the defendant was stolen from his premises in the city of Kenosha; that about that date he learned that his mare was at Valparaiso in the state of Indiana, and applied to the plaintiff to go with him to the latter place and assist him in recovering her, and agreed with the plaintiff that if he would do so, and pay his own and the defendant’s expenses in going there, and the expense of obtaining possession of the mare, including the payment of any charges thereon, the plaintiff might retain the mare in his possession, if recovered, as security for all sums of money so advanced; that the plaintiff entered into and performed the agreement on his part, advanced the necessary money (stating the amount thereof), recovered the mare, and took her to Kenosha, and has ever since held possession, claiming a lien on her for such advances and the cost of her food and keeping; that the defendant, though often requested, has refused and neglected to pay said advances and the expense of keeping the mare as he agreed to do; and that the mare is worth $225. Judgment is demanded for the amount of such advances and expenses, with interest, and that the plaintiff “be adjudged to have a lien upon said mare for said amount, and that he may enforce the same according to law,” and for general relief.</p> <p>The defendant answered, denying specifically nearly all of the material allegations of the complaint. The answer amounts, substantially, to a general denial. He also interposed a counterclaim for loss of the use of his mare while in the possession of the plaintiff.</p> <p>When the cause was called for trial, the defendant demanded that it be tried by a jury, but the demand was denied, and the court proceeded to try the same as an equitable action, without a jury. After the trial the court filed its findings of fact, which are equivalent to a finding that all the material allegations of the complaint, as above stated, are true. The amount of plaintiff’s lien on the mare was found to be $225.25. The conclusions of law deduced by the court from such facts are to the effect that the plaintiff has a lien upon the mare,'and is entitled to a judgment for the above sum and costs, which judgment should declare his lien on the mare therefor and should direct that she be sold and the proceeds of the sale be first applied to the payment of the plaintiff’s lien and costs,— the surplus, if any, to be paid into court for the use of the defendant. Directions for giving notice of the sale are also given. Judgment was thereupon ordered and entered in accordance with such conclusions of law.</p> <p>After the entry of judgment and at the same term, the defendant moved the court to vacate the judgment, and for a new trial, on the ground of newly discovered evidence. The nature of this evidence is stated in the opinion. The court denied the motion.</p> <p>The defendant appeals to this court from the . judgment and from the order denying the motion for a new trial.</p> <p>For the appellant it was contended, inter alia, that in this action the equitable right to the lien depends upon the legal right to recover the indebtedness, which is denied. A cause of action for the recovery of money is legal and for the jury. 3 "Wait’s Practice, 175; Hcvrrison v. Juneau Banlc, 17 Wis. 350; Gunn v. Madigan, 28 id. 158. While equity acts without the aid of a jury, yet where the equity claimed is founded upon an alleged legal right the court will direct an issue for a jury. 1 Story’s Eq. Jur. sec. 72; 1 Wait’s Practice, 20, 436.</p>

<p>(1) Gifts inter vivos: When title passes. (2) Agency: Conversion-of moneys collected.</p> <p>1. Moneys collected by an agent under a direction to pay the same to a third person do not become the property of the latter until paid to him or credited to him with his knowledge and consent.</p> <p>2. Any application of such moneys by the agent other than as directed would be an. unlawful conversion, notwithstanding the fact that as to other moneys.collected the principal had been accustomed to treat the agent merely as his debtor.</p>

The ease is stated in the opinion. contended that there was no long account such as is contemplated by sec. 2864, R. S. Druse v. Sorter, 57 Wis. 644; Snips v. Stefan, 50 id. 286. “ When the action from its nature is not referable the answer cannot make it so.” Townsend v. Hendricks, 40 How. Pr. 143; Turner v. Taylor, 2 Daly, 278; Gameron As to what constitutes a “ long account,” they cited Turner v. JVachtsheim, 71 Wis. 16; Welsh v. Darragh, 52 ET. Y. 590.

Action to recover the sum of $300 which it is alleged the plaintiff became entitled to receive from the defendant corporation by reason of the death of her husband, a member of said society. The facts are stated in the opinion. The certificate therein referred to was made in Prussia, and the translation thereof is as follows: “According to the record of baptisms of the Ev.

The plaintiff, II. M. Mygatt, recovered judgment in the circuit court against the defendant, John E. Burton, May 10,1888. While the action was pending the plaintiff caused the respondents, Charles S. French and Lucretia D. Burton, to be summoned as garnishees. The affidavit and summons in the garnishee action was duly served on the defendant, Burton. In May following, the garnishees answered separately, each denying liability as such. The defendant, Burton, did not answer.

<p>APPEAL from the Circuit Court for Milwaulcee County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassodav:</p> <p>It appears from the record, and is undisputed, that January 10, 1887, the defendant company, for value received, made and executed its promissory note, payable to the defendant Henry M. Benjamin, in the words and figures following, to wit:</p> <p>“$3,508.92. Milwaukee, January 10, 1887.</p> <p>“ On demand, after date, we promise to pay to the order of H. M. Benjamin thirty-five hundred and eight 'dollars ■and'92-100 dollars, at Merchants’ Exchange Bank, Milwaukee, Wis., with seven per cent, interest until paid, value received. The IeoN Chief MiNiNG- Co.</p> <p>“ By II. M. BeNjamih, President.</p> <p>“ H. NuNNemaohee, Secretary.”</p> <p>That at that time Henry M. Benjamin and said Nunne-macher owned a majority of the stock of said company, and both resided in Milwaukee; that February 9,1887, said Nunnemacher, acting for and in behalf of himself and said Henry M. Benjamin, sold and transferred and delivered all of their said stock in said company, together with the said note and other notes, to the firm of Moore, Benjamin & Co.; that the name of the Benjamin belonging to the said last-named firm was H. S. Benjamin; that the said Henry M. Benjamin and said Nunnemacher thereupon ceased to have any connection with, or interest in, said iron company, and the members of the said firm of Moore, Benjamin & Co. thereupon became the officers thereof; that about February 15, 1887, said Henry M. Benjamin, at the request of said II. S. Benjamin, indorsed said note by writing his name on the back thereof; that on or about November 15, 1887, and in a suit between the members of the firm of Moore, Benjamin & Co., the plaintiff, W. J. Turner, was appointed a receiver of the rights, credits, and effects of Moore, Benjamin & Co., including said note; that said Moore resided at Hurley, Wis., and said H. S. Benjamin resided and did business at Milwaukee, Wis.; that December 16, 1887, payment was duly demanded on said note, but the same was not paid, nor any part thereof, and it was thereupon protested for nonpayment, and notice thereof given to said iron company, said Henry M. Benjamin, and said Nunne-macher.</p> <p>Subsequently the plaintiff commenced this action against the defendants upon said note. Henry M. Benjamin answered the complaint by way of denials, and alleged the agreement under which the transfer and delivery of the stock, notes, etc., was made to Moore, Benjamin & Co., as aforesaid, and the indorsement was made as aforesaid. The trial of the issues thus formed was had by jury, and at the close of the evidence the court stated, in effect, as a matter of law, that the presentment of the paper and the demand for payment, and the protest and notice of protest, were too late to hold the said Henry M. Benjamin as indorser.. Thereupon the court directed the jury to find for the plaintiff as against the defendant the Iron Ohief Mining Company, and in favor of the defendant Henry M. Benjamin, ■ dismissing the complaint as to him. From the judgment thereupon rendered accordingly the plaintiff appeals. j</p> <p>contended, inter alia, that a note bearing interest and payable on demand is- a. continuing security, and the indorser is liable until actual demand. Merritt v. Todd, 23 N. Y. 28; Parker v. Stroud, 98 id. 379; Field v. Nickerson, 13 Mass. 131; 1 Daniel on. Neg. Inst. secs. 606, 608-12. It has been held in this state that the question of what is a reasonable time generally is a mixed question of law and fact, a question for the jury.-. Wood v. M. & St. P. P. Co. 27 Wis. 541; Zemke v. C., M.. de St. P. B. Co. 39 id. 449; Davis v. Hubbard, 41 id. 408;; Churchill v. Price, 44 id. 540; Gammon v. Abrams, 53 id. 323. See, also, Tomlinson Carriage Co. v. Kinsella, 31 Conn. 273; 1 Daniel on Neg. Inst. see. 612.</p>

<p>APPEAL from the Superior Court of Milwaulcee County.</p> <p>The case is stated in the opinion. The defendants appeal from a judgment in favor of the plaintiff.</p>

<p> Sale of chattels: Fraud: Replevin: Affirmance of sale: Voluntary assignment: Title of assignee. </p> <p>1. By a fraud upon the vendor goods were obtained upon credit, and the vendee, after selling a part thereof, made an assignment for the benefit of creditors. The vendor replevied that part of the goods which came to the hands of the assignee, and afterwards brought an action for the conversion of the part which had been previously sold. In the latter action, to enable him to garnishee the assignee, the vendor waived the tort. He also filed a claim with the assignee for the value of the goods sold previous to the assignment. Held, that by none of these acts did the vendor affirm the original .sale and so lose the right to recover in the action of replevin.</p> <p>2. Where a sale of goods is induced by the vendee’s fraud, his assignee for the benefit of creditors cannot hold them as against the vendor.</p>

<p> Debtor and creditor: Fraud: Execution sale: Garnishment. </p> <p>The stock of goods of an insolvent debtor being about to be sold on executions, K. agreed with the debtor that he would buy the goods at such sale and proceed to sell them again; that he would pay certain creditors of the debtor and, after realizing enough out of the stock to reimburse him for all advances, with interest and a commission, would turn over the residue of the goods, if any, to certain of the execution creditors who were to assign their judgments to him. The agreement was carried out, but after K. had reimbursed himself there was no residue of the stock. There was nothing to impeach the fairness or validity of the execution sale; and K. had no notice that the creditors to whom the residue was to be assigned were not such in good faith, or of any contemplated fraud. Conceding that the judgments of such last-mentioned creditors were fraudulent, it is held that the agreement of K. was valid and, there being no residue, did not render him liable as garnishee at the suit of other creditors of the debtor.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion:</p> <p>The respondents commenced an action against Franz Steinkirchner, as defendant, on May 15, 1889, to recover the sum of $2,200, alleged to be due from the defendant to the plaintiffs for goods sold and delivered. In that action the plaintiffs caused an attachment to be issued and the property of the defendant to be attached thereon. The in-terveners and appellants subsequently commenced actions against the defendant, and attached the same goods attached by the respondents. On the 15th day of June, 1889, the interveners obtained from the circuit court an order on the respondents to show cause why the court should not award issues to determine whether the said writ of attachment of the said respondents is a prior lien on the funds and money in the hands of the sheriff of Milwaukee county, as against the petitioners, and for further relief as justice and equity may require.</p> <p>The petition upon which the order to show cause is founded shows that the goods attached in the action of the respondents, and in the actions of the petitioners, had been sold by the sheriff upon execution in favor of other parties, and the money arising upon such sale, or a part thereof, remained in the hands of such sheriff; and that a part of the money so in the hands of the sheriff would be applicable to the payment of the judgments, or some of them, recovered by the petitioners against the defendant, if it should be adjudged that their attachments and judgments obtained thereon should have preference over the attachment.of the respondents. The record also shows that, at the time the order to show cause was heard by the court below, the petitioners had obtained judgments against the defendant in all their attachment cases.</p> <p>The petition shows that the defendant is insolvent, and alleges as a cause for avoiding 'the attachment of the respondents, and for adjudging that the attachments of the petitioners should be declared a prior lien upon the money in the hands of the sheriff, that there was nothing due from the defendant to the respondents at the time their action was commenced and their attachment levied. The material allegations of the petition upon this question are the following:</p> <p>“Your petitioners further show, on information and belief, that at the time of the commencement of this action said Steinkirchner was not indebted to the said Espenhain d) Bartels in said sum of $2,200, or any other sum, for merchandise purchased by said Steinkirchner from said Espen-hain <& Bartels between February 1,1889, and May 1, 1889; but, on the contrary thereof, these petitioners allege that the said Steinkirchner had fully paid the said Espenhain c& Bartels for all such merchandise sold to him by them between said dates, by giving to said Espenhain dh Bartels¿ in payment for the merchandise purchased between February 1 and February 28, 1889, a note dated February 28, 1889, for the sum of $670.04, payable May 31, 1889, and for the merchandise purchased between February 28, 1889, and April 1, 1889, a note for $694.07, due July 3,1889; and that for the merchandise which said defendant, Steinkirchner, had purchased from said Espenhain da Bartels between April 1 and May 1, 1889, the said defendant delivered to said Espenhain cfo Bartels his note for $503.45, payable July 3,1889; that the said Espenhain c& Bartels upon the delivery of said notes, discounted the same at the bank; and that neither of the said notes was held by said Espenhain <& Bartels at the time of the commencement of this action, nor was either of them due; and that they did not, at the time of the commencement of this action, have a cause of action as alleged’in their said complaint, or for the amount of $2,200, against the said defendant.”</p> <p>To this charge, made by the petitioners, the respondents, on the hearing of the order to show cause, filed the affidavit of John L. Bartels, one of the plaintiffs, which reads as follows: “ John L. Bartels, being first duly sworn, on oath deposes and says that he is one of the plaintiffs in the foregoing action, and one of the plaintiffs referred to in the petition herein on file, and that he makes this affidavit on his own behalf, as well as on behalf of his co-plaintiff, F. O. Espenhain, because all the facts connected with the business of the plaintiffs, as conducted and carried on in Milwaukee, Wis., are peculiarly within the knowledge of this affiant, he having charge and control of the business of the plaintiffs in this city and county; and that all the business of the firm of Espenhain & Bartels, as conducted and carried on with the defendant Franz Steinkirchner, was carried on wholly and entirely by this affiant. This affiant further alleges, from his own personal knowledge, that on the loth day of May, 1889, the defendant, Franz Steinkirchner, was indebted to these plaintiffs in the sum of twenty-two hundred (2,200) dollars, as alleged in affiant’s affidavit of attachment. Affiant further alleges that said indebtedness of twenty-two hundred (2,200) dollars is over and above the indebtedness secured by the notes referred to in the petition attached to the order herein, and that no part of the indebtedness of twenty-two hundred (2,200) dollars sued for in this action by the plaintiffs, was secured by either or any of the notes referred to in the petition herein; and that said notes, and the indebtedness purporting to be secured by them, were separate and apart from the indebtedness of twenty-two hundred (2,200) dollars, as alleged in affiant’s affidavit for attachment and in plaintiff’s complaint now herein on file. Wherefore this affiant asks on his own behalf, and on behalf of his co-plaintiff, that said order herein asked for by petitioners be denied.”</p> <p>Upon the petition, and an amendment thereto setting forth that the defendant had absconded, and had made no appearance and taken no steps to defend said action of the respondents, and that he had no property except what had been seized and sold by the sheriff in actions then pending against him, and upon the affidavit of said Bartels and all the papers in said action, the circuit court denied the prayer of the petitioners and discharged the said order to show cause. From this order discharging the order to show cause the interveners appeal to this court.</p>

<p> Promissory notes: Corporations. </p> <p>Anote reading “we promise to pay,” etc., and signed “San Pedro Mining and Milling Company. F. Kraus, President,” is the note of the company alone; and parol evidence is inadmissible to show that -the president did not sign tho name of the company, but signed his own name as a joint maker.</p> <p>See note to this case in 43 N. W. Rep, 166.— Rep.</p>

<p> Fraudulent .conveyances: Garnishment: Drafts and notes: Assets formerly reached by creditors' bill: Action, legal or equitable? Jury trial: Constitutional law. </p> <p>1. A finding of the trial court that a conveyance of land was without consideration and fraudulent as to .the creditors of the grantor, is held to be sustained by the evidence.</p> <p>2. Drafts and promissory notes may be reached by garnishment.</p> <p>3. After land had been conveyed without consideration and in fraud of the grantor’s creditors, the grantee sold the same. Held, that drafts and promissory notes, the avails of such sale, were subject to garnishment by said creditors even though they had passed out of the immediate possession and control of the fraudulent grantee and had come into the hands of other persons who held them for such grantee.</p> <p>4. A proceeding by garnishment to reach non-leviable assets formerly reached by creditors’ bill, is essentially equitable, and the issues therein are triable by the court.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion:</p> <p>This is an action in equity, brought by the respondent against James W. Vail, William II. Landolt, and others. So far as the rights of the plaintiff and the appellant Lucinda V. Doud are concerned, the material facts stated in the pleadings are the following:</p> <p>The plaintiff, by his complaint, shows that he had obtained a judgment against James W. Vail and William H. Landolt for upwards of $10,000; that an execution had been duly issued upon such judgment to the sheriff of Ozaukee county, where the lands in controversy are situated; that by virtue of such execution said sheriff had levied upon the real estate in controversj7; that previous to the commencement of plaintiff’s action and to the levy of such execution the defendant Vail, who had theretofore owned said real estate, had made a conveyance of the same to his son, Prank W. Vail, which the plaintiff charges to have been made for the purpose of defrauding his creditors, and he also charges that the same is fraudulent and void as to the plaintiff’s judgment and execution. In an amended complaint, made after a mortgage given.by said defendant Yail upon said real estate, or a portion thereof, to Nicholas Kemp and Edward Blake had been placed upon record, the plaintiff alleges that said mortgage-was fraudulent and void as to the plaintiff’s judgment and execution.</p> <p>The appellant alleges in her answer that she holds the title to said real estate by virtue of a deed of conveyance from Frank W. Yail, the grantee of said defendant Yail; that the mortgage -given to Kemp and Blake was given to secure them against any liability they might incur as tlie sureties upon the bond of said James W. Yail as the administrator of the estate of Lyman Doud, deceased. She also alleges that the said James W. Yail has absconded from the state and been removed from his administratorship; that she has been appointed administratrix de bonis non of said estate; and that, at the time said Yail absconded and was removed as such administrator he was indebted to said estate in the sum of $27,000 for the value of the assets of said estate not accounted for by him as such administrator. She denies all fraud or intent, to defraud by said Yail in giving said mortgage. She further alleges that the conveyances of said real estate b}'' James W. Yail to his son Frank W. Yail were made to him on the agreement on the part of said Frank W. Yail “ that he would take and hold said premises in trust for the benefit of the estate of Lyman Doud, deceased, and as security to make good to the said estate any and all sums which the said James W. Yail might then be owing or thereafter found indebted to the said estate for assets thereof which had come to the hands of the said James W. Yail as administrator of said estate.” She further alleges that said Frank W. Yail took said conveyances and held the said premises under and in pursuance of said agreement and trust,' and that he has since conveyed the said real estate to her as administratrix in pursuance of and in execution of said agreement and trust, and that she now holds the same as security for the said estate, for the amount due the same from the said James W. Tail as administrator thereof. She denies all charges of fraud in the execution and delivery of said mortgage, and claims that she has the right to hold said real estate as administratrix, as security for all sums which may be found due from said James W. Vail as administrator of said estate. She makes no claim by her answer to any other part of the property or estate of the said James W. Vail, nor does she show that she has any equitable or legal lien upon any other part of the property, real or personal, of said .Vail.</p> <p>Among other things, the plaintiff prayed for the following relief: (1) Eor the appointment of a receiver of the property of said defendant Vail. (2) That the mortgage to Blake and Kemp, and the deeds to Frank W. Vail, also a deed to Mary B. Vail and Frank W. Vail, be adjudged fraudulent and void as against the plaintiff, and that the defendants be enjoined from selling or incumbering said real estate or other property of said defendants Vail and Landolt; that the plaintiff be declared to have a lien to the amount of his judgment and costs by virtue of said execution and garnishment upon the property described in his complaint, and all other property of every kind of either of the defendants, and for discovery and account.</p> <p>There, was no question made upon the hearing of this appeal, as to the sufficiency of the allegations of the complaint in charging fraud in the giving of the deeds by said defendant Vail to said Frank W. Vail, or in the giving of said mortgage.</p> <p>Upon the amended complaint, and upon the answers of several of the defendants, and upon the affidavit of William H. Timlin, one of the attorneys for the respondent, showing that a part of said real estate, in which the appellant claimed an interest, had been condemned since the commencement of this action, and taken by the Milwaukee, Lake Shore & Western Railroad Company; that upon such condemnation said railroad company had paid to the clerk of the circuit court of Ozaukee county the sum of $6,000 for the use of the owners théreof, as prescribed by sec. 1850, R. S.; and that said real estate, or some part thereof, was valuable for the rents and income thereof, and that the same could be rented and the issues and rents thereof preserved, the circuit court made an order appointing a receiver, the material part of which reads as follows: “That James M. Morgan be, and he hereby is, appointed receiver of the property, credits, and effects of James W. Tail, with the usual powers aud duties, and with power to take, hold, and preserve during the pendency of this action, for the benefit of whoever may be decreed entitled thereunto, all the proceeds or condemnation money to be paid upon or growing out of the condemnation of part of the north 9-20 of the east half of the northeast qüarter, section 32, township eleven (11) north, of range twenty-two (22) east, described in the complaint. That said receiver shall not take possession of or interfere with any other property, except upon application to the court and order of the court allowing him so to do. And it is further ordered that said receiver, before entering upon the discharge of said trust, execute and file, as required by the rules of this court, a bond in the penalty of thirteen thousand dollars, to be approved by this court. And it is further ordered that the defendants, and every one of them, during the pendency of this action, be, and they hereby are, enjoined or restrained from selling, assigning, or disposing of or incumbering any of the property or effects of the said James W. Tail.”</p> <p>The court afterwards, on the application of the plaintiff, made a further order in regard to the receiver, which reads as follows: “ That the receivership of James M. Morgan, the receiver herein, be, and the same hereby is, extended to the rents or rental due upon the lands described in complaint herein, and the same is hereby made a general receivership of the property, credits, effects, and things in action óf James IV. Tail, and that the said receiver is hereby authorized and empowered to collect and preserve the same, and to take and hold, or to collect, or to sell and convert into money, as to him may seem best, all the following described property of James "W. Vail.”</p> <p>The appellant appealed from so much of the first order “as appoints James M. Morgan receiver in said action of the proceeds or condemnation money to be paid or growing out of the condemnation of certain lands described therein.” She also appealed from so much of the second order “ as directs that the receivership of said James M. Morgan be extended to the rents or rental due upon the lands described in the complaint in said action, and makes the receivership of said James M. Morgan a general receivership.”</p>

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>Action by the executor of the last will and testament of Alcy E. M. Downer, against all legatees, devisees, or claimants of an interest in the estate of the testatrix, to obtain a construction of said will. From the judgment construing the will the Wisconsin Female College, one of the legatees, appeals.</p> <p>To the point that when the time in which a condition is to be performed has been prescribed by a testator, ignorance of the existence of the condition does not excuse nonperformance, they cited 2 Jarman on Wills (Bigelow’s ed.), 10; Powell v. líawle, L. N. 18 Eq. 243; In re Hodges’ Legacy, 16 id. 92; Burgess v. Robinson, 3 Meriv. I; Stover’s Appeal, 77 Pa. St. 282; 2 Eedf. on Wills, 307.</p>

<p>APPEAL from the Superior Court of IliUoaulc.ee County.</p> <p>This action was brought under ch. 143, E. S., to foreclose a lien upon a certain building in the city of Milwaukee, and the lot upon which the same is situated, for an alleged balance due for materials furnished and labor performed in the erection of such building by the plaintiffs for the defendants, pursuant to a contract in writing entered into by the parties. No question is raised on the regularity or sufficiency of the proceedings preliminary to the action.</p> <p>The contract of the parties for the erection of the building contains the usual provision that all payments on account thereof were to be made on the certificates of the architects, Burnham & Eoot. The contract makes the architects the final arbiters of the quality of the materials, the sufficiency of the work, and the value of extra work performed by plaintiffs on the building, and relieves the defendants from all obligations to make payments on the contract or for extra work until the plaintiffs obtained the certificates of the architects that the materials and work are in accordance with the contract, and also of the value of any such extra work. Such certificates were obtained for all payments made by the defendants under the contract.</p> <p>It is conceded that no such certificates covering the claim in this action were ever obtained, but the complaint, as amended, alleges that defendants waived the production thereof, and further that the building was erected in strict compliance with the terms of the contract in every respect, and that certificates thereof were duly demanded of the architects, who wilfully, arbitrarily, and wrongfully refused to sign the same. The defendants in their answer take issue on these averments of this complaint. They allege gross violations of the contract both in materials and labor, and interpose a counterclaim for damages therefor. Issue was duly taken upon the counterclaim.</p> <p>On demand of the plaintiffs, the issues in the case were tried by a jury. A special verdict was returned, in which the jury found that the plaintiffs had fully performed their contract to erect the building, and the value of extra work done thereon; that the architects arbitrarily refused .to certify thereto; that they so refused by direction of defendants; and that the defendants waived the obtaining of such certificates, and accepted the building as a full performance of their contract by plaintiffs. The balance unpaid on the contract price is undisputed, and the damages assessed by the jury consist of such balance and the value of extra work, less a credit to defendants on account of a certain change in specifications which reduced the cost of the work.</p> <p>A motion by defendants to set aside the verdict and for a new trial was denied, and judgment was thereupon entered for the plaintiffs for the amount so assessed by the jury. The defendants appeal from such judgment.</p> <p>To the point that the production of the architects’ certificate was a condition precedent to plaintiff’s right to demand payment, and that even if the refusal to issue certificates was “arbitrary” it does not excuse the non-presentation of the certificates unless the refusal was so grossly perverse as to raise an inference of fraud, they cited Baasen v. Baehr, 7 Wis. 51G; Hudson v. McCartney, 33 id. 331; Tetz v. Butter-field, 54 id. 242; Forristal v. Milwaukee, 57 id. 628; Oalc-wood Betreat Ags’n v. Ratliborne, Go id. 177; Kihlberg v. JJ. 3. 97 U. S. 398; Sweeney v. JJ. 8. 109 id. 618; Martins-burg ds P. li. Co. v. March, 114 id. 549; Delaware & II. Canal Co. v. Pennsylvania Coal Co. 50 N. Y. 250; Byron v. Bow, 109 id. 291; Kirtland v. Moore, 40 N. J. Eq. 106; Barney v. Giles, 120 Ill. 154; Clarice v. Watson, 18 C. B. (N. S.), 278.</p>

<p> (1) Reformation of contract: Clerical error. (%) Measure of damages: Manufacture and sale of lumber. (8, J¡.) Reversal of judgment: Evidence: Agency. </p> <p>1. A contract for the getting out and delivery of sawed lumber was dated December 38, 1886, but stated that it was to be performed on or before August 1, 1886. Held, that although lumbermen might infer that the date of performance intended was August 1, 1887, yet the contract must be reformed before there could be a recovery for a breach thereof.</p> <p>2. Plaintiffs, having contracted to sell and deliver sawed lumber to the defendant, purchased the logs from which such lumber was to be sawed, but before any of it had been sawed the defendant notified them that he would not fulfil the contract. Held, that the measure of damages was the profits which the plaintiffs would have made on the contract, and not the difference between the contract price and the price for which they afterwards sold the lumber.</p> <p>3. In an equity case an error in the admission of evidence will not work a reversal if the evidence properly admitted sustains the findings.</p> <p>4. A principal having testified that his agent was not authorized to bind him by a contract, and the agent having testified that he was so authorized, a finding that the agent had such authority is held to be sustained, independently of testimony that the agent had made other contracts of a like character which had been recognized and performed by the principal.</p>

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>The facts are stated in the opinion. The plaintiff appeals from a judgment in favor of the defendant rendered upon a special verdict.</p> <p>to the point that it was not, as a matter of law, negligence to stand upon the foot-board of the car, cited Woodman v. Met. Li. Co. 4 Lawyers’ Eep. Ann. 213, and note; City R. Go. v. Lee, 50 N. J. Law, 435; Geits v. M. C. R. Co. 72 Wis. 308.</p>

<p>Sale oe Chattels: WARRANTY. (1) Instructions to jury. (2) Expression of opinion. (8) Implied warranty: Latent defects.</p> <p>1. In an action for breach of an express warranty it was not error to instruct the jury that “ the question is simply, was' there an express warranty made, and what was that warranty, and has there been a breach of it? If so, what is the measure of the plaintiff’s damages? ”</p> <p>2. A mere statement by the seller, of his own opinion and belief, not amounting to a positive affirmation or statement of fact, upon a matter concerning which the purchaser is to exercise his own judgment, does not amount to a warranty.</p> <p>3. A bull-calf at the time of salé having been but three months old, apparently free from defects, and present to the view of the purchaser, it cannot be held as a matter of law that his sterility, which transpired two years later, existed at the time of sale and that there was an implied warranty that at maturity he would possess the power of procreation.</p>

<p>(1) Habeas corpus: Review on writ of error. (Z, 8) Divorce: Bond, with surety, for payment of alimony: Modification of judgment: Contempt.</p> <p>1. On writ of error to review an order or judgment made in a habeas corpus proceeding, remanding a prisoner to custody, this court is limited to the question of jurisdiction; and the rule is the same where the judgment brought up for review was rendered by the circuit court on certiorari to a court commissioner who had issued the writ of habeas corpus and discharged the prisoner thereon.</p> <p>2. Under sec. 2367, R. S., the circuit court may require the husband to give a bond with surety for the payment of alimony or other allowance adjudged to the wife in a divorce action. And though the original judgment did not provide for such security it may be subsequently required.</p> <p>8. A refusal to give such bond with surety, when required, may be punished as a contempt.</p> <p>ORTON, J., dissents.</p>

<p> Pleading: Election between counts substantially alike: Appealable order, </p> <p>1. In an action for personal injuries the complaint contained two counts, both alleging that the injuries were caused by the negligence of the driver of defendant’s street-car. The second count also alleged negligence of the defendant in allowing the car and the street at the place of injury to remain out of repair, but did not allege that such negligence contributed to the injury. Held, that as the only negligence alleged as the direct cause of the injury was that of the driver, the two counts were substantially alike, and the defendant was not prejudiced by a refusal to compel the plaintiff to elect between them.</p> <p>3. An order refusing to require an election between two counts in a complaint is not appealable where such counts are substantially alike and do not render the complaint contradictory or ambiguous, or tend to mislead or confuse the defendant in his defense.</p>

<p>Habeas corpus: Jurisdiction: Excessive sentence.</p> <p>1. On habeas corpus only jurisdictional defects are inquired into.</p> <p>2. A judgment sentencing a person to imprisonment for a longer term than the statute warrants is merely erroneous, and not void for want of jurisdiction.</p>

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

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>The case is sufficiently stated in the opinion. The defendant Dora F. Werner appeals from a judgment in favor of the plaintiff.</p> <p>They contended, inter alia, that the facts stated in the answer show that there was a perfect contract of novation between the plaintiff, Fred. H. Werner, and the appellant, whereby the appellant was substituted as plaintiff’s debtor and Fred. II. Werner was discharged. Lynch v. Austin, 51 Wis. 287-9; Gotterill v. Stevens, 10 id. 422; Cook v. Barrett, 15 id. 596; Iloile v. Bailey, 58 id. 434; York v. Orton, 65 id. 6; Heaton v. An-gier, 28 Am. Dec. 353; Browne on Stat. of Frauds, secs. 166-1665/ Bishop on Cont. (Enl. ed.), sec. 1263. Any security for the payment of the debt that the plaintiff may have had after this arrangement has not been security given by Fred. H. Werner but given by plaintiff’s debtor, the appellant; and the appellant having been a minor when the no-vation was made, and still being one, has all of the rights of an infant debtor and mortgagee.</p>

<p> Practice: Trial and judgment when all defendants not served; Voluntary appearance: Separate trials: Refusal to strike cause from calendar: Appealable order. </p> <p>1. In an action upon a joint contract the summons was served upon but one of five defendants, and one voluntarily appeared. TIeld, that such appearance was equivalent to service upon the defendant so appearing within the meaning of subd. 1, sec. 2884, E. S., and that the plaintiff could not proceed against the defendant alone upon whom actual service had been made.</p> <p>2. Such a case is not one in whicli a separate trial between the plaintiff and any of the several defendants may,be allowed by the court under sec. 2844, E. 8.</p> <p>8. Until, upon answer or default, the cause was ready for trial or determination as to both of said defendants, it could not properly be placed upon the calendar; and if prematurely placed thereon an order refusing to strike it off, which in effect deprives a defendant of his right to the statutory time for answering, is appealable.</p>

<p>APPEALS from the Circuit Court for Milwaukee County.</p>

<p> Landlord and tenant: Holding over after term. </p> <p>The lessee’s household goods remained in the house, packed up and ready for removal, for three days after the expiration of the term, the lessor being absent from home and his agent having declined to receive the key of the house and the rent due and having directed the lessee to wait until the lessor’s return. The key was promptly surrendered to the lessor on his return and was accepted by him. Held, that there was no holding over such as would render the lessee liable as a tenant from year to year.</p>

<p> Insurance against fire: Use of building: Increase of risk: Court and jury: Expert testimony: Value of building wholly destroyed: Immaterial error: Witnesses: Comments of counsel. </p> <p>1. A policy of insurance upon “ a dwelling-house, to be occupied by tenants,” provided that it should be wholly void if the premises should at any time be occupied or used, in whole or in part, for any purpose, whether manufacturing or otherwise, different from that set forth in the application or policy, or if the risk should be increased by means within the control of the assured. The tenants used the second story of the house for shaving hoops for a period of one week, but such use ceased three days before the fire, and the jury found that it did not materially increase the risk. Held, that there was no substantial breach of the condition.</p> <p>3. The question whether suph use materially increased the risk was one of fact for the jury, and they were not concluded on that point by the testimony of experts.</p> <p>3. The fact that the plaintiff in an action upon a policy of insurance was allowed to testify as to the value of the building destroyed, although (under sec. 1943, R. S.) such evidence was immaterial, is not such an error as will work a reversal.</p> <p>4, It is not error to allow counsel to comment upon the fact that persons who, according to a witness, were with him when the events as to which he testified occurred, were not also called as witnesses.</p>

In January, 1885, the plaintiff purchased from the defendants two promissory notes made by one Samuel Preston, paying therefor the full amount of the notes with interest to the date of purchase. He also took an assignment of a chattel mortgage and a mortgage of land which had been given to secure the notes. Immediately after the purchase he seized the mortgaged chattels and sold them, under authority given by the mortgage.

On petition of the relator, Frederiole Lightfoot, Jr., for a writ of mandamus, an alternative writ was issued out of the Winnebago county court, directed to the respondents, the supervisors of the town of Winneconne, commanding them to proceed to cause a certain alleged public highway, described in the petition, to be ascertained, described, and-entered of record in the proper town clerk’s office, pursuant to sec. 1223, E. S., as amended by ch. 103, Laws of 1885, or show…

Action of trespass guare clausum. The facts are sufficiently stated in the opinion. The jury found that the' locus in quo had become a public highway by user. Judgment on the verdict was rendered in favor of the defendants, and the plaintiff appealed.

Action to foreclose a mortgage. The principal facts are stated in the opinion. The mortgage in suit contained no express covenants. The plaintiff appeals frpm a judgment dismissing the complaint.

<p>APPEAL from the Circuit Court for Winnebatgo County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>This action is to recover damages for loss under a policy of insurance issued by the defendant to the firm composed of the plaintiffs, upon the buildings and personal property therein described, in the aggregate sum of $2,500, for the period of one year, commencing March 17, 1887, and ending March 17, 1888. The property was destroyed by fire September 17, 1887. The policy contained the following clause: “The policy may also be at any time canceled by the company, on refunding or tendering to the assured, his, her, or their agent or representative, a ratable proportion of the premium for the time unexpired.” The answer was to the effect that the policy was surrendered, given up, and canceled on or about August 16, 1887, and before the fire.</p> <p>At the close of the trial the jury returned a special verdict, in which ten questions were answered, to the effect that the plaintiffs were the owners of the property insured when insured and at the time of the loss; that the defendant’s local agent notified the plaintiffs that the defendant proposed to cancel the policy, and requested them to return it to him, and thereupon the plaintiff Perrin agreed to return the policy; that, in pursuance of such request, the plaintiffs did return the policy to the local agent on or about August 16, 1887; that the defendant’s local agent did not, at any time before the fire and after the return of the policy, inform the plaintiff Perrin of the amount of unearned premium, nor did said agent ask for credit for such unearned premium, and Perrm did not agree to give him credit therefor; that the amount of the plaintiff’s loss on buildings insured was $4,000; that the plaintiffs’ loss on personal property insured was $40,000; that the defendant never paid or tendered payment of the unearned premium; that the plaintiffs were entitled to recover $2,670.54 as damages, if anything. Thereupon the plaintiffs moved the court for judgment upon the special verdict so returned, and the same was granted. From the judgment entered thereon in favor of the plaintiffs the defendant appeals.</p>

<p>ENRON to the Circuit Oourt for Winnebago County.</p> <p>The action was brought against Edwin R. Abbot and John A. Stewart, trustees of the Wisconsin Central Eailroad Company, to recover damages for personal injuries. The facts will sufficiently appear from the opinion. The jury found in favor of the plaintiff, and assessed his damages at $1,000.</p>

<p>ERROR to the Circuit Court for Winnebago County.</p> <p>The defendant in error, Jacob Gore, brought his action in the circuit court against Abbot and Stewart, the plaintiffs in error, to recover the value of, a quantity of hay belonging to him and to certain other persons who, before the action was brought, assigned their claims to him. The hay in question was standing in stacks on a marsh adjacent to the line of the "Wisconsin Central Railroad, operated by the plaintiffs in error as trustees, and was burned, as is alleged, in. consequence of tlaeir negligence in operating the railroad. The negligence charged is that at the place where the fire commenced combustible materials had been allowed to remain on the right of way of the railroad company ; that the locomotive engine which set the fire was not provided with proper appliances to prevent the escape of fire; and that such engine was being run at the time at too great a rate of speed for its capacity, thereby causing it to emit an increased quantity of fire.</p> <p>The testimony and rulings of the court on the trial are sufficiently stated in the opinion. A special verdict was demanded, and returned by the jury as follows: “(1) Did a freight train drawn by locomotive engine No. 65 pass the place where the fh-e originated, shortly before the fire was discovered? Answer. Tes. (2) Was locomotive engine No. 65 in a safe and proper condition in all respects, and provided with- all reasonably known appliances to prevent the escape of fire, and in charge of a competent engineer, and properly managed? A. Yes. (Answered by the court.) (3) Were the defendants guilty of negligence which caused the fire and consequently destroyed the property of the plaintiff and his assignors? A. Tes. (Answered by the court.) (4) If you answer the foregoing question in the affirmative, state in what respects such negligence consisted. A. By leaving ties, grass* and other combustible material on the right of way of the Wisconsin Central Railroad Company. (5) Was the fire set by the engine? A. Tes.” The jury also assessed the value of the hay.</p> <p>The defendants below moved for judgment on the verdict, and also for a new trial. Both motions were denied by the court, and judgment for the plaintiff below was rendered for the value of the hay as assessed by the jury, and for costs. The defendants below thereupon sued out a writ of error from this court t@ obtain a review and reversal of such judgment.</p>

<p>Railroads: Negligence: Injury at stbeet crossing. (1) Absence of flagman, fj-6J Instructions to jury: Duty of traveler to stop and listen: Court and jury: Contributory negligence induced by acts of defendants: Specijia negligence.</p> <p>Evidence. f%, 8) Expert testimony: Opinion based on testimony.</p> <p>1. The absence of a flagman or other person at a street crossing to give warning of danger may be shown as an item of evidence to be considered by the jury in connection with all the other evidence upon the question of the negligence of a railroad company in moving its trains or cars over such crossing.</p> <p>2. A surgeon testifying as an expert may give his opinion as to the probable effects of an injury and their probable duration, although he has not examined the person injured for more than a year.</p> <p>3. An expert may give his opinion based upon the testimony of another witness whom he heard testify, if such testimony was brief, plain, and uncontradicted, or where the jury is informed of the exact fact upon which the opinion is based, Bennett v. State, 57 Wis. 69, distinguished.</p> <p>4. In an action for piersonal injuries alleged to have been received at a railroad crossing by reason of defendants’ negligence in moving a car on the railroad track unattended by the switch-engine or any person, it appeared that plaintiff’s view of the track was obstructed by cars standing upon a side-track. The jury were instructed that “ if, when the plaintiff came near the crossing, he did not see the moving car crossing the yard and could not see it in time to prevent the accident, and the engine was some distance west of the crossing, standing still or moving west, and he knew that fact, he had the right to suppose and believe that no train or cars were coming from the west that would prevent him from crossing in safety under the circumstances, and there was no occasion for him to stop his team so long as the engine was moving west of the crossing or standing still.” Held, error. Whether, under the circumstances stated, the plaintiff should have stopped and listened before crossing,, was a question of fact for the jury.</p> <p>5. The jury were further instructed that “if, by the neglect or omission of those in charge of the yard to give any warning of the approach of that car to the crossing, at the time when the engine was standing still or moving west, the plaintiff’s vigilance was allayed, the defendants are not at liberty to impute the consequences of their acts to his want of vigilance, and if their acts brought him within the boundaries of peril the defendants must answer for the result.” Held, error, since the jury might infer that, if the defendants’ employees were guilty of negligence which in any way tended to influence the plaintiff’s action, negligence on the part of the plaintiff should not affect his right to recover.</p> <p>6. The jury were instructed that if they found that defendants’ employees were guilty of negligence which caused the injury, they should further, in their special verdict, “ specify particularly in what that negligence consisted — whether it was in the management of the car, in letting the car cross loose, not having a brakeman on the car, in having no switchman or flagman at the crossing, or whatever you find the negligence to be.” The jury found that the negligence consisted “in giving no sufficient warning as the car approached the crossing, and in having the view of the track shut off by box-cars standing near the highway.” Held, that such instruction did not give the jury the right to infer that each of the matters mentioned was negligence as a matter of law, and the finding shows that they did not so understand it.</p>

<p>APPEAL from the Circuit Court for Green Lalce County.</p> <p>Garnishment. The facts are sufficiently stated in the opinion.</p> <p>They contended, inter alia, that the assignment and judgment and execution levy are one transaction — an assignment for the benefit of creditors, giving preference to the garnishees herein, and therefore void under sec. 1, ch. 849, Laws of'1883. Perry v. Holden, 22 Pick. 269; Burrows v. Lehndorff, 8 Iowa, 96; Rundlett v. Bole, 10 FT. H. 458; Main v. Lynch, 54 Md. 658; Horton v. Kearney, 10 Wis. 443; Gillmann v. Henry, 53 id. 468; Herbst v. Lowe, 65 id. 316; Backhaus v. Sleeper, 66 id. 68; Winner v. Hoyt, id. 227; Bowery Bank Case, 5 Abb. Pr. 415; Kellogg v. Boot, 23 Fed. Eep. 525; Preston v. Spaulding, 120 Ill. 208; Holt v. Bancroft, 30 Ala. 193; Berry v. Gutts, 42 Me. 445; Owen v. Arms, 26 FT. J. Law, 22; Fairchild v. Hunt, 14 FT. J. Eq. 373; Livermore v. McNair, 34 id. 478; National Bank v. Sprague, 21 id. 530; Oole v. Dedham, 13 Iowa, 551; V. S. v. Griswold, 8 Fed. Eep. 501; Hahn v. Salmon, 20 id. 811; Doggett, B. d¿ H. Co. v. Herman, 16 id. 812; Llide di: L. Nat. Bank v. Behm, 126 Ill. 461; Meinhard v. Strickland, 29 S. C. 491; James v. Sigler, 7 S. "W. Eep. (Ky.), 632.</p> <p>To the point that the judgment obtained by the garnishees could not be attacked by any one except the assignee of Smith & Sacket, they cited ch. 170, Laws of 1882; ch. 349, Laws of 1883; ch. 292, Laws of 1885; Leonard v. Clinton, 26 Hun, 288; Spring v. Short, 90 FI. T. 538; Swift y. Hart, 35 Hun, 128; Childs v. Kendall, 30 id. 227; Crouse v. Froihingham, 27 id. 123; Lowery v. Clinton, 32 id. 267; Boot v. Potter, 59 Mich. 498; Angelí v. Pickard, 61 id. 561; Scott v. Chambers, 62 id. 532; Wilhelm; v. Pyles, 60 id. 561; Sweetser v. Rigby, 63 id. 13; Powers v. O. H. Hamilton Paper Co. 60 Wis. 23, 32; Vernon v. Upson, id. 418; Batten v. Smith, 62 id. 92, 99; Kloech-ner v. Bergstrom, 61 id. 197; Charles Baumbach Co. v. MUler, id. 450; Conlee Lumber Co. v. Pipón Lumber <& M. Co. 66 id. 481, 490; Frost v. Citizens’ Rat. BanJe, 68 id. 234, 240; Baclehaus v. Sleeper, 66 id. 68, 12; Rovñtt v. Blodgett, 61 id. 376.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: It appears from the record that this action was commenced August 4, 1876, for the foreclosure of a note and mortgage for $2,600, dated May 1, 1874; and that, after a trial upon the merits, judgment of foreclosure and sale was entered in favor of the plaintiff and against the defendants, in the circuit court for Winnebago county, December 30, 1876, in which' there 'was found to be due the plaintiff…

<p>APPEAL'from the Circuit Court for Winnebago County.</p> <p>This is an action for a mandatory injunction to compel defendant to restore to its former condition of usefulness that portion of a public street upon which its track is laid. The defendant appeals from an order overruling a demurrer to the complaint.</p>

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>The action was brought on a promissory note made by the defendants, as partners, in their firm name, to the plaintiff, for $105 and ten per cent, interest, dated July 10, 1877, and indorsed $10.50 paid thereon August 15,1878, and $10, Juty 5,1879. Also to recover certain moneys alleged to be held by the defendants in trust for the use of the plaintiff. The action was commenced in 1884. The defendants interposed a counterclaim for services rendered by them for plaintiff, and for moneys paid to her. They also answered the statute of limitations. Plaintiff replied to the counterclaim, which reply is, in substance, a general denial of the averments thereof.</p> <p>. The cause was referred to Judge Cleveland to hear, try, and determine. The referee filed his report, dated October 14,1888, in favor of the plaintiff, and stated an account of the transactions between the parties. The court confirmed the report, and gave judgment for the plaintiff in accordance therewith. A more specific statement of the case is contained in the opinion. The defendant Priest appeals from the judgment.</p>

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion:</p> <p>The plaintiff brought an action in the circuit court to recover damages of the "defendant city for. injuries sustained by him while traveling along one of the public highways of said city. He charges that he sustained the injury by reason of the neglect of the defendant to- keep such highway in a reasonably safe condition for public travel. The highway upon which the injury was sustained was within the city limits, but outside of the densely populated part of the city. At the point in the highway where the injury was sustained, it ran along very near the banks of the Wisconsin river. There was a. fence along the road on the land side thereof, but on the side next the river there was no fence or any other barrier. The accident happened on the 17th of April, 1886. At the time of the accident, and for some time previous thereto, the water of the river had risen above its banks,- and overflowed the highway, in question at the place where the injury occurred, and for about sixty rods in length along the road it was overflowed to the depth of three feet or more. The evidence tends strongly to show that the water was unusually high that spring, and at the time -of the accident. The narrowest places on the overflowed road from the fence to the bank of the river were from nine to twenty feet.„ On the day of the accident the plaintiff and another man were driving along this river road in a two-wheeled vehicle drawn by one horse. The plaintiff was driving. Just before coming to the overflowed part of the highway, they met a man with a team, who had just passed along the overflowed road. As he passed them he testified that he told them to keep close to the fence. The plaintiff testified that he did not hear him say anything. Plaintiff testified that when he came to the overflowed part of the road he saw the wagon tracks coming out of the water, and drove right along. After driving some distance, the man riding with him said “ Stop now; ” that he stopped there, and undertook to turn around, and, in turning, the horse went over the bank into the river, and he was also thrown into the river. He was afterwards taken out of the water insensible, and very nearly drowned. On his cross-examination he said that, when the horse got belly-deep in the water, then he turned back, and more he did not know. ‘When the horse got belly-deep, he suddenly went down. Whether there was a cross current at the place where he stopped and turned he could not tell.</p> <p>Upon the trial in the circuit court, the plaintiff had a verdict in his favor; and from the judgment entered on such verdict the defendant appeals to this court. The learned counsel assign for errors: (1) That the court erred in overruling the plea in abatement of the action pleaded by the defendant; (2) that the motion for a nonsuit should have been granted; (3) that the court erred in refusing to submit, as a part of the special verdict, a question propounded by the defendant, and submitting in its place one drawn by the court; (4) that the court refused to give an instruction asked by the defendant; (5) that the court erred in overruling the motion of the defendant to set aside the verdict as contrary to the law and evidence.</p> <p>To the point that plaintiff was guilty of contributory negligence preventing" a recovery, they cited Parvis v. P., W. dr. B. B. Oo. 17 Atl. Eep. (Del.), 702; Walleer v. Westfield, '39 Yt. 246; Gremer v. Portland, 36 "Wis. 92; Otis v. Janes-ville, 47 id. 422; Bloor v. Delafield, 69 id. 273; Fox v. Glas-teiibury, 29 Conn. 204; Farnmn, v. Concord, 2 N. H. 392.</p>

<p>APPEALS from the Circuit Court for Kewaunee County.</p> <p>Each of the three actions above entitled was brought -to foreclose a mortgage executed by the defendants Joseph Schleiss and wife of the same' real estate in the county of Kewaunee. Judgment of foreclosure and sale was rendered therein at the May term, 1889, of the Kewaunee circuit court, and before May 28, 1889. Neither’ of the above-named defendants appeared in either action before judgment. The defendants Decleer, Duvall, and Grimmer were made parties to such actions as subsequent incum-brancers of the mortgaged, premises. On May 28, 1889, they appealed from such judgments.</p> <p>Each judgment provided that the amount thereof should draw interest at the rate of ten per cent, per annum, and that in case of redemption interest should be computed at that rate, One of the mortgages drew interest at the rate of seven per cent., and the other two at eight per cent., per annum. At the June term of the circuit court of Manito-woc county, which is a special term of the circuit court for Kewaunee county, and on June 14, 1889, the court, on motion of- the plaintiff, made an order in each case to so modify the judgment therein that it should draw interest only at the rate specified in the mortgage, as provided in ch. 186, Laws of 1889. The order also gave the defendants who had theretofore appealed from the judgment the right to dismiss such appeal in twenty days, without costs to either party, and imposing $10 costs upon the appellants should they fail to do so. They did not discontinue their appeals, and have appealed from such order.</p>

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>Action to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.' The deceased, who was. the plaintiff’s husband, was killed by the fall of a scaffold upon which he was engaged in shingling the roof of a bay window upon a house owned by, and being built under the superintendence of, the defendant. Other facts will sufficiently appear from the opinion. The plaintiff had a verdict assessing her damages at $1,500; and from the judgment entered thereon the defendant appealed.</p>

<p> Landlord and tenant: Sale of premises: Termination of lease: lAgwi-dated damages: Bent. </p> <p>A lease of a farm for five years from April 1, 1886, at an annual rent of $80, payable in equal parts on January 1 and March 1, stipulated that the party failing to perform should pay to the other party $25 as liquidated damages. In September, 1886, the lessee surrendered the lease at the request of the lessor, who had sold the premises and had promised his grantee that he would rescind the lease and pay the forfeiture. Held, that the lessor was liable for the stipulated damages, and (the first half year’s rent having been paid) was not entitled to recover the rent for the second half year.</p>

<p> Garnishment: What property subject thereto. </p> <p>1. A garnishee is not liable as such for property in his possession unless the right of the principal defendant thereto is absolute at the time of the service of the garnishee process; nor for the amount of a debt, if its becoming due depends upon a contingency.</p> <p>2. A contract by which the principal defendant was to build a boiler for the garnishees provided that the first payment thereon should be made when the iron arrived, a second payment two weeks after work was begun, and the balance when the boiler was completed acceptably to a designated inspector. It also provided that the garnishees should deliver to said defendant the old boiler then in their mills, provided, however, that they might, at any time before the completion of the new boiler, sell the old one, paying to said defendant a certain sum therefor. The garnishee process was served before the new bojler %vas completed and while the old one remained as a fixture in the mills of the garnishees. Held, that the title to the old boiler had not passed to the defendant, and that neither it nor the amount to become due on the completion of the new boiler was subject to the garnishment.</p>

<p> Arbitration and award: Matters submitted: Presumption: Contingent claim: Executors. </p> <p>1. The presumption is that arbitrators considered every matter submitted to them, and made their award with respect thereto.</p> <p>3. Upon the evidence in this case, it is held that an arbitration and award between an executor and the persons interested in the estate of hiis testator determined the extent of the executor’s liability arising from the settlement of the estate; and that an award of damages, in favor of the executor and against the United States, for the overflow of land,— an appeal from which was then pending,— was- considered by the arbitrators and embraced in such determination.</p>

<p>APPEAL from the Circuit Court for Fonddu Lao County.</p> <p>The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion:</p> <p>On the 20th of January, 1888, the appellant commenced an action on a promissory note of Bartell Bros., a firm consisting of J. M. Bartell and P. C. Bartell. Judgment was obtained, in said action, against the said Bartells, for the sum of $823.17.</p> <p>At the time said action was commenced, the appellant also commenced a garnishee action against the respondent (Kate PierJ, claiming that she had property or money in her hands belonging to said Bartell Bros., or to one of them. The respondent answered in said garnishee action, and denied any indebtedness to the said Bartell Bros., or to either of them, and also denied that she had in her possession or under her control any real estate, personal property, effects or credits of any description, belonging to the said defendants, the Bartells, orto either of them; and she further answered that P. C. Bartell was doing business as a dealer in sewing-machines, etc., and that on December 22, 1887, the said P. C. Bartell made an assignment to her as assignee for the benefit of his creditors, setting out at length such assignment, and that by virtue of such assignment she had taken possession of the property of the said P. 0. Bartell, and was so in possession at the time the garnishee summons was served on her. Upon this answer of the garnishee the appellant took issue.</p> <p>The issue between the appellant and the garnishee was tried by the court and a jury. Upon the trial in the circuit court it appeared that the respondent had property in her hands, at the time the garnishee action was commenced, appraised at $2,870.32; book-accounts, $617.19. That $739.36 of this property was taken from her possession upon chattel mortgages existing on it at the date of the assignment; and $310 were goods held on commission, which were also .taken from her possession. The balance of the goods were sold by her, and that she realized from the goods sold and amounts collected the sum of $606.04. It also appeared that nearly all the property that came to the hands of the respondent was goods which belonged to the firm of Bartell Bros, at the time the note was given upon which the action against Bartell Bros, was brought.</p> <p>The appellant contended, on the trial in the circuit court, that the assignment was made for the purpose of hindering, delaying, and defrauding the creditors of Bartell Bros., and was therefore void; and it was also contended that the assignment was void in law, for the reason that the as-signee, at the time the assignment was made to her, was, and still is, a married woman. After hearing all the evi-deace, the learned circuit judge nonsuited the plaintiff, and rendered judgment against it for costs. From this judgment the plaintiff appealed to this court, and seeks a reversal of the judgment of the circuit court upon the two grounds taken on the trial: First, that the evidence shows that the assignment was fraudulent and void, because made to hinder, delay, and defraud the creditors of the assignor; and, second, that it was void in law, because the assignee was at the date of the assignment, and stiil is, a married woman.</p>

<p> (1) Specific performance of contract to transfer stock: Adequate legal remedy. (%) Injunction: Reference to ascertain damages: Reversal of order prematurely made. </p> <p>1. Specific performance of a contract to transfer or deliver corporate stock whose value can be ascertained will not be enforced where there is no fiduciary relation between the parties and no claim that the defendants are insolvent, and where the plaintiff’s legal rights can be enforced without resort to a foreign tribunal.</p> <p>2. An order of reference to ascertain the damages sustained by reason of an injunction should not be made until it is finally decided that the plaintiff was not entitled to the injunction; but after it has been so decided the order of reference, though prematurely made, will not be reversed.</p>

<p>Mills and Mill Dams : Flowage oe Land. (1, 2) Limitation of action: Pleading: Amendment. (3, k) Special verdict: Inconsistency: Height of dam and flowage: Instructions to jury. (5) Evidence: Relevancy.</p> <p>1. In an action for damages for the flowage of land by a mill dam, an answer alleging that neither the dam nor the pond thereof had been changed in height or head within the ten years next preceding the commencement of the action,— but not alleging that the actual flowage of the plaintiff's land had not been increased,— does not set up the defense of a right acquired by prescription or the • limitation of the action, under sec. 4221, R. S.</p> <p>2. But where the evidence, admitted without objection, tended to prove that the flowage had not been increased, such an answer may be treated as amended to conform to the facts proved.</p> <p>8. A finding that the dam and pond had been maintained at the same height for more than ten years is not inconsistent with findings that the plaintiff’s land had been flowed by reason of the dam within the ten years, but had not been continuously flowed thereby during said period.</p> <p>4. The question submitted for a special verdict, as to the continuous flowage of the land, did not contain the qualification, “except when prevented by casualty, leakage, evaporation, and use of the water for the mill.” But the court charged the jury to consider these exceptions in.answering the question, and explained that they would not break the continuity. Held, sufficient.</p> <p>5. Testimony in relation to the height of the water in the stream before the present dam was built and more than ten years before the action was commenced, the effect upon other lands in the vicinity, and the record title showing the lawful height of the dam, held relevant to the issue.</p>

This is a proceeding under ch. 525, Laws of 1887, for the appointment of drainage commissioners, etc. The petition was made by George E. Bryant and others. An answer thereto was filed by James W. Robbins and John R. Baltzell, the owners of the mill and water power at the outlet of Lake Mendota. The findings of the circuit court are stated in the opinion. The petitioners appeal from an order or judgment dismissing the proceeding.

The following statement of the case was prepared by Mr. Justice Cassoday: It appears from the record that the county board of supervisors of Forest county, at an adjourned meeting thereof, held March 21, 1889, passed and adopted in due form an ordinance altering the boundaries of two towns, and ere. ating a new town, as stated in the opinion of the court; that June 14, 1889, said Henry Graef made an affidavit for a writ of certiorari, in the usual form; that thereupon the…

CeetioeaRi to the Judge of the Ninth Judicial Circuit. Pursuant to ch. 883, Laws of 1889, George E. Bryant and others presented to said judge their petition for the appointment of drainage commissioners.

<p> Trusts and trustees: Investment of funds. </p> <p>A trustee will not be protected from loss in investing trust funds, unless he invests in government or real estate securities, or in other securities approved by the court to which he is accountable.</p>

<p>APPEAL from the Circuit Court for Fond duLao County.</p> <p>In March, 1888, plaintiff purchased a piano of defendant, and paid him therefor $200 in cash, and an old organ. About two weeks later, she offered to return the piano to the defendant, and demanded of him the organ and repayment of the $200. The defendant refused to accept the piano, and also refused to return the organ or refund the money. The ground upon which the plaintiff thus sought to rescind the purchase was that certain representations made by the defendant to her concerning the age and qualities of the piano, on which she relied in making the purchase, were false and fraudulent. This action is to recover the consideration paid for the piano. The action is in tort.</p> <p>The plaintiff recovered judgment for such consideration, and interest thereon from the date of the demand. A motion for a new trial was denied. The defendant appeals from the judgment.</p>

<p>Dbains: Mandamus. Cl, SJ Application: Invalid proceedings: Lapse of years before proceedings taken. (3, 4) Duplicate applications.</p> <p>1. An application for the construction of a drain in two towns under sec. 1865, R. S., upon which proceedings were taken, cannot he used, after the lapse of several years, to inaugurate new proceedings, although the former proceedings have been adjudged void.</p> <p>2. Town supervisors will not, three or four years after the presentation of an application for the construction oí a drain, be compelled by mandamus to take action thereon, especially in the absence of proof that there has been no change in the ownership of the lands in question, or that the original petitioners are still a majority of the resident owners and desirous of having the proceedings inaugurated.</p> <p>3. The petition for a writ of mandamus to compel supervisors to construct a drain pursuant to sec. 1365, R. S., should show that duplicate applications were presented to the supervisors of the respective towns.</p> <p>4. The statute requiring duplicate applications is not complied with by presenting a single application first to one board of supervisors and then to the other, nor by presenting the original application to one board and a copy to the other.</p>

<p> Replevin: Property seized on execution: Nonsuit, </p> <p>In an action by the defendant in an execution to recover goods seized thereon, a nonsuit should be granted if the evidence fails to show that the goods were exempt. R, S. sec. 3732.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This is an action for a divorce. The cause of action alleged in the complaint is for cruel and inhuman treatment on the part of the defendant.

<p>APPEAL from the Circuit Court for Fond du Lac County.</p> <p>Action to recover damages for the obstruction of a navigable river and the consequent delay in the driving of the plaintiff’s logs therein. The facts will, sufficiently appear from the opinion. There was a verdiot for the defendants, and from the judgment entered thereon the plaintiff appeals.</p> <p>They contended, inter alia, that this river is one of the navigable waters leading into the St. Lawrence river which the state is bound to keep as common highways forever free to the people of the state and of the United States. Atfy Gen. v. Eau Claire,37 Wis. 400; Ordinance of 1787, art. IY; Const. art. IX, sec. 1; Wis. II. Imp. Co. v. Lyons, 30 Wis. 61. The rivers of this state capable of floating logs to mill or market are navigable public highways. Whisler v. Willdnson, 22 Wis. 572; Olson v. Merrill, 42 id. 203; Sellers v. Union L. Co. 39 id. 525; Cohn v. Wausau B. Go. 47 id. 324; Weath-erly v. MeiJdejohn, 56 id. 73; Angelí on Watercourses, sec. 537. The legislature has power to prohibit, and has prohibited, the erection of any dam, bridge, or other structure within or over any navigable stream which may obstruct or impede its free navigation. E. S. secs. 1596, 1598; Wis. JR. Imp. Go. v. Lyons, 30 Wis. 61. The erection and maintenance of a dam across a navigable river at a point where it is navigable in fact, without legislative permission, is unlawful, whether it does or does not interfere with navigation. Wis. JR. Imp. Go. v. Lyons, 30 Wis. 61; Att'y Gen. v. Earn Olaire, 37 Wis. 400; Arundel v. MoGulloeh, 10 Mass. 70. A bridge or dam placed across a navigable river without legislative authority is a nuisance if it obstructs navigation. Barnes v. Racine, 4 Wis. 454; Angelí on Watercourses, sec. 554, and note 2; In re Eldred, 46 Wis. 530; Angelí on Highwaj^s, sec. 223. If a stream is navigable in fact a riparian owner has no right to obstruct it by a dam on his own premises. Olson v. Merrill, 42 Wis. 203; Stevens Point B. Go. v. Reilly, 46 id. 237. The right of navigation or floatage is paramount to the rights of riparian owners. Angelí on Watercourses, sec. 554, note 2, and cases cited; Angelí on Highways, sec. 56; Wood on Nuisances (ed. 1875), 618, sec. 588. Any unauthorized obstruction is a nuisance, even though the public is really benefited. Wood on Nuisances (ed. 1875), secs. 602-4, 607. Decisions in Maine are founded upon a statute which gives the riparian owner the right to build 'dams across navigable streams without legislative authority. Veazie v. Dwinel, 50 Me. 479-485.</p> <p>They argued, among other things, that the plaintiff has waived any right to complain of defendants’ structure, if such right ever existed, and is estopped from maintaining any action on account thereof. He has consented to and continued to use the defendants’ improvements for his own advantage since they were built, and to use the river, in which they are placed, in the customary manner of its use for the past thirty years or more. Erie It. Go. v. D., L. c& W. B. Go. 21 N. J. Eq. 283, 289; Cases in Equity, Abr. 522; Sprague v. Steere, 1 R. I. 259; Trenton Banhv. McKelway, 8 N. J. Eq. 84, 96; Baritan W. P. Go. <0.. Veghte, 21. id. 463; Society, etc. v. Lehigh V. B. Go. 32 id. 329; Haight v. Proprietors, 4 Wash. C. 0. 601; Sheldon v. Bochwell, 9 Wis. 166; Pettibone v. La O. & M. B. Go. 14 id. 443; Crosby v. Smith, 19 id. 449; Gobb v. Smith, 23 id. 261; Gould on Waters, secs. 527, 530-532, 554; Leigh v. Holt, 5 Biss. 340. The plaintiff’s right of floatage is not paramount to defendants’ right to build and maintain the mill dam for the purposes for which it was constructed. Veazie v. Dwinel, 50 Me. 479; Davis v. Winslow, 51 id. 264; Lancey v. Clifford, 54 id. 487; Foster v. Sear sport S. & B. Go. 79 id. 508; Middleton v. Flat B. B. Go. 27 Mich. 534; Thunder Bay B. B. Go. v. Speechly, 31 id. 344; Buchanan v. Grand B. L. Go. 48 id. 364; Snow v. Parsons, 28 Yt. 464; Leigh v. Holt, 5 Biss. 338; Gould on Waters, sec. 110. The mill dam was built in aid of navigation, and served that purpose. In this, as in all other small streams, the logs of the different owners are put in loose, and in driving become intermingled. This necessitates sorting before each can get his own. Anyone owning logs in the mass may stop it for a sufficient length of time to take out his own. Osborne v. Knife Falls B. .Go. 32 Minn. 412,419; Waits v. Tittabawassee B. Go. 52 Mich. 208; Davis v. Wins-low, 51 Me. 264, 298; Weise v. Smith, 3 Oreg. 445. A structure in aid of navigation is permitted. Stevens Point B. Co. v. Reilly, 46 Wis. 237; Cohn v. Wausau B. Co. 47 id. 314. The Ordinance of 1787 has no application. Keator I. Go. v. St. Croix B. Go. 72 Wis. 62, 80.</p>