Volume 75 — Wisconsin Reports

<p>. APPEAL from the Circuit Court for Fond du ZaoGomiij.</p> <p>This action was brought to recover damages for personal injuries suffered by the plaintiff, charged to have- been caused by the insufficiency and want of repair of what is termed in the complaint “a temporary winter road”' in the defendant town. The complaint alleges that on March 15, 1888, and for more than five weeks immediately prior to that time, a certain, highway in the defendant town was blockaded and rendered impassable for a distance ©>f about, ninety-eight rods by reason of snow which had! accumulated therein-and which was carelessly and negligently left therein during the time aforesaid. The complaint then proceeds as follows:</p> <p>“ Upon information and belief, the plaintiff alleges that in consequence of the said insufficiency and want of repair of said highway, and in consequence of the carelessness and negligence of said defendant and its officers and agents in leaving said highway so filled up and blockaded by snow, and unopened, and absolutely impassable, as aforesaid, some person or persons unknown to this plaintiff, about five weeks prior to said 15th day of March, 1888, with the full knowledge, consent, and approbation of the supervisors of said town and of the road overseer of the road-district in which that section of the highway is located, opened for public travel through the fields adjoining, by the consent of the owners thereof, a temporary winter road on the east side of, and parallel to, the section of said highway so blockaded and unopened; which temporary road was thereafter, and before the said 15th day of March, 1888, with the knowledge and approval of the supervisors of the defendant town, repaired and worked upon by the road overseer of that road-district, and was traveled continuously by the public, and by the supervisors of said town, and by the road overseer of said road-district, from the time it was so opened till on or about the 15th day of March, 1888, aforesaid, and that said temporary winter road was opened and used for the purpose of public travel and conducting travelers out of the passable and traveled : sections of the said highway by and around the blockaded and untraveled section thereof, and the said temporary vroad did in fact connect the open and traveled sections of the said highway with each other, and actually and neces-■sarity formed a section of the main traveled highway from 'Waupun to Oshkosh, and that said sections were not con-mected by any other road or way, and that the travel of ithe said blockaded section thereof was wholly suspended during the five weeks aforesaid, and until after the injury of the plaintiff as hereinafter stated.</p> <p>It is further alleged that on said March 15, 1888, the plaintiff was driving along said highway in the exercise of proper care, and when he reached the point thus blockaded he necessarily turned off the highway and drove along such temporary road until he reached a point where there was a ditch across the same, which was covered with snow, and its existence there was unknown to him, when his horses broke through the crust of snow into the ditch, throwing him from his cutter with great violence, and inflicting upon him severe personal injuries.</p> <p>The complaint also alleges due notice 'to the supervisors of such injury, and the filing of a claim for damages therefor, in the office of the town clerk, as required by statute, and the refusal of the supervisors or town board to allow said claim or any part thereof.</p> <p>The defendant interposed a general demurrer to the complaint, which was sustained by the court. The plaintiff appeals from the order sustaining the demurrer.</p> <p>They argued, among other things, that towns having reasonable notice of obstructions in their highways are bound to remove them or make suitable by-ways to pass around them, or see to it that they are made by others, in -order to exonerate themselves from liability to travelers; and in such case the town is responsible for the insufficiency of such by-way. 2 Shearm. & Eedf. on Ueg. 13, note 1, and cases cited; ^Baity v. Duxbury, 24 Yt. 155; Mathews v. Winooski Turnpike Go. id. 480; Willard v.- Kewbury, 22 id. 458; Barber v. Essex, 27 id. 62; Morse v. Richmond, 41 id. 435; Dickinson v. Rockingham, 45 id. 99; Bales v. Sharon, id. 474; Coates v. Canaan, 51 id. 131; Savage v. Bangor, 40 Me. 176; Phillips v. Veasie, id. 96; Munson-v. Derby, 37 -Conn. 298; Erie v. Sohwingle, 22 Pa. St. 381; Angelí on Highways (3d ed.), sec. 267. The by-way in question was the respondent’s road cle facto, and the acts of its officers in reference thereto estop the respondent from denying its legality in this action. State v. Preston, 34 Wis. 687, 688; Whitney v. Essex, 42 Yt. 520; Thomp. on Neg. 1209, citing F?'ie v. Sohwingle, 22 Pa. St. 384; Goclner v. Bradford, 3 Pin. 259; Williams v. Gmnmington, 18 Pick. 312;- Stark v. Lancaster, 57 N. II. 88; Treise v. St. Paid, 36 Minn. 526; Kelley v. Fond du Lao, 31 Wis. 187, and cases- cited; Barton v. Montpelier, 30 Yt. 650; Goggswell v. Lexington, 4 Cush. 307; Gerald v. Boston, 108 Mass. 580; Hayden v. Attleborough, 7 Gray, 338; Green v. Danby, 12 Yt. 338; Savage v. Bangor, 40 Me. 176; Iloife v. Fulton, 34 Wis, 615-619; Kneeland v. Gilman, 24 id. 39, 42. The obstruction of the highway was the proximate cause of the injury. ILoufe v. Fulton, 29 Wis. 296; 1 Shearm. & Eedf. on Neg. secs. 25-40, and notes; Wood on Nuisances, 337, note 1.</p>

<p>APPEAL from the Circuit Court for Fond du Lao County.</p> <p>The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion:</p> <p>This is an action to recover the value of certain legal services performed by the plaintiffs for the defendant village, and for money disbursed by the plaintiffs on behalf of said defendant in carrying on certain legal proceedings.</p> <p>This action was commenced early in the year 1885. the plaintiffs had served their complaint therein, and before the time to answer had expired, they served an amended complaint. To this amended complaint the defendant demurred, setting up all the statutory grounds of demurrer, and several in addition thereto. On the 19th of September, 1885, this demurrer was heard by the court, and the demurrer to the complaint, and to the whole thereof, was sustained, with leave to the plaintiffs to amend their complaint within twenty days upon, payment of $10 costs to the defendant. Thereupon a second 'amended complaint was made and served in the action. To this amended complaint the defendant again demurred. This demurrer was overruled by the court by an order dated November 15, 1887, and afterwards the defendant, on the 3d of January, 1888, tendered judgment to the plaintiffs in the sum. of $250. This tender of judgment was not accepted, and the defendant answered, admitting that the plaintiffs were employed by the defendant as alleged in their complaint, but denying the value of the services and the amount of the alleged disbursements.</p> <p>By stipulation of the parties the case was referred to P. H. Martin, as referee, to hear, try, and determine the case. Upon the hearing before the referee the plaintiffs asked to be permitted to again amend their complaint by inserting, in substance, what was omitted from the first amended complaint when the second amended complaint was made and served, so that the proposed amended complaint would be, in substance, the same as that to which the defendant’s demurrer was sustained by the court. The referee and the court below refused to permit this last amendment, on the ground, among others, that the proposed amendment to the complaint was to insert a supposed cause of action to which the demurrer of the defendant had beeir sustained as not stating a cause of action, and that no appeal had been taken from such order of the court sustaining such demurrer, and so the matter was res adjudi-caba in the action.</p> <p>On the trial the referee found in favor of the plaintiffs for the sum of $324.22. The plaintiffs excepted to the findings of fact and conclusions of law. The only complaint made against the findings of fact is that the referee did not allow a sufficient amount for the value of plaintiffs’ services, and nob enough for their disbursements made on behalf of the defendant.</p> <p>to the point that authority from individual members of the village board would not give the plaintiffs the right to go on and render services or incur expenses for which the defendant would be liable, cited Perry v. Tynen, 22 Barb. 137, 140; Hay v. Green, 4 Gush: 433,438; Williams v. School District, 21 Pick. 75; Higgles v. Nantucket, 11 Gush. 433, 436; Stoughton v. Baker, 4 Mass. 530; Green v. Miller, 6 Johns. 39; Martin v. Lemon, 26 Conn. 192; Comm. v. Ipswich, 2 Pick. 70; Kupfer v. South Parish, 12 Mass. 185'; Damon v. Granby, 2 Pick. 345; R. S. sec. 4971, subd. 3.</p>

<p>APPEAL from the Circuit Court for Fond duLac County.</p> <p>Action, to recover damages for personal injuries sustained On the evening of October 16, 1884, and alleged to have been caused by a defect in a sidewalk in the defendant city. The evidence tended to show, among other things, that by reason of the accident the plaintiff was confined to her bed for about six months; that thereafter, and up to the time of the second trial in November, 1888, she continued to suffer pain, and that she had not then recovered from the injury. The jury found a special verdict favorable to the plaintiff, and assessed her damages at $2,250. From the judgment entered thereon the defendant appealed. Other facts are stated in the opinion.</p> <p>to the point that the damages awarded were excessive, cited Potter v. 0. <& H. W. R. Go. 22 Vis. 615; Qoodno v. Oshlcosh, 28 id. 300; Bass v. G. & H. W. JR. Go. 39 id. 636; Balter v. JMadison, 62 id. 137; Johnson v. G. efe JN. W. JR. Go. 64 id. 425; Rogers v. Henry, 32 id. 327; Gastello v. landwehr, 28 id. 522; Spicer v. O. c& N. W. E. Co. 29 id. 580; Karasieh v. Hasbrouck, 28 id. 569; Patten v. 0. <& FT. W. E. Go. 32 id. 524; Duffy v. G. dé J5T. W. E. Go. 34 id. 188; Outhbert v. Appleton, 24 id. 383.</p> <p>To the point that the. damages awarded were not excessive, they cited Neanow v. Utteeh, 46 Wis. 581; Baher v. Madison, 62 id. 137; Berg v. 0., If. dé St. P. E. Co. 50 id. 419; ■ Ferguson v. W. O. E. Go. 63 id. 145; Johnson v. O. dé N. W. E. Go. 64 id. 425.</p>

The following statement of the case was prepared by Mr. Justice Oassoday: This is an action for personal injuries to the plaintiff and his wagon and harness, while traveling upon the highway described, on the evening of August 1, 1886, alleged to have occurred by reason of and on account of the insufficiency, unsafe condition, and want of repair of said highway at the point of said accident, without any negligence or fault on the part of the plaintiff, with the usual…

<p>APPEAL from the Circuit Court for Langlade County.</p> <p>Motion by the respondent to dismiss the appeal.</p>

This is a proceeding commenced in the county court; to obtain a settlement of the accounts of Alexander Wilson, deceased, as executor of the last will and testament of John B. Terry, deceased. A former appeal is reported in 13 Wis. 497, and the principal facts are there stated.

EEEOE to the Circuit Court for La Fayette County. On the petition, in due form, of Louis P. Sheers, the plaintiff in error, a writ of habeas corpus was duly issued to the respondents by H. 0. Martin, a court commissioner, commanding them to produce before him Agnes Minnie Sheers, by them alleged to be detained and imprisoned, together with the time and cause of such detention or imprisonment, and to make return to said writ before him on a day therein named.

The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion: The evidence in .this case shows that the appellant, as' sheriff of Orawford county, on the 20th day of July, 1886, levied upon a stock of goods belonging to Henry E. Rogers, by virtue of an execution issued out of the circuit court of Yernon county, upon a judgment in favor of N. McKie against Henry E. Rogers.

<p> Death caused by defect in bridge: Liability of town: Instructions to jury. </p> <p>1. In an action to recover damages for the death of a person, alleged to have been caused by a defect in a bridge, it was error to instruct the jury that “ the accident may, in a sense, have been the fault, or produced by the fault, of the town officers, and yet the town may not be responsible for it.”</p> <p>2. It was error, also, to charge that “this accident may have been produced by a defect in the bridge, and yet the town not be responsible, because it is not every defect in a highway which renders a town liable.”</p> <p>3. It was error, also, to charge that the duty of the town to keep its highways in a reasonably safe condition “does not require it to make its bridges absolutely safe, because that cannot be done practically. They cannot be made so safe but what accidents may happen upon them.”</p> <p>4. It was error, also, to. instruct the jury that they must find whether the bridge was safe or not, and that in considering the case they should lay out of their minds the fact that an accident happened upon it, and look at the bridge just as the evidence showed it to be before the accident, and say whether that was a reasonably safe and sufficient bridge.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This action was commenced in justice’s court. In his complaint the plaintiff alleged, in effect, that the defendant was indebted to him on an account for goods, wares, and merchandise sold and delivered to the defendant, at his special instance and request, November, 10, 1884, in the sum of $75.33, according to the account thereunto annexed.

<p> Bridges: Injury from defect: Notice of condition of bridge: Proximate cause: Court and jury. </p> <p>1. Town authorities had actual knowledge that a bridge was in a defective condition, and had caused repairs to he made upon it. Held, that they were chargeable with notice of the fact that the timber in the bridge was decaying, and with the duty of having it thoroughly examined.</p> <p>2. Upon the evidence in an action to recover for injuries alleged to have been caused by the breaking of a bridge, it is held to have been error to withdraw from the jury the questions whether the bridge was defective, and whether the falling of the bridge or the breaking of the axle of the plaintiff’s wagon was the proximate cause of the injury.</p>

The action is for monej’- had and received by the defendants for the use of the plaintiffs McKinnon and Derfus, and of James Eedmond, now deceased, the intestate of the plaintiff Helen Redmond. The complaint is in the usual form of complaints in actions for money had and received. Elo particulars of the claim are stated therein, and no bill of particulars was given or .demanded.

<p>Tax .Titles: Appeal. (1) Assignment of tax certificate by county: Conclusiveness of record: Limitation on issue of tax deed. (2) Lack of proof of publication of notice of tax sale: Presumption from tax deed: What parol evidence must shoiv. (S) Bill of exceptions: Reversal of judgment.</p> <p>1. The record made by the proper officers of the assignment of a tax certificate by the county at a certain time, is conclusive of the fact that the ownership of the certificate passed from the county at that time; and a tax deed issued upon such certificate more than six years thereafter is void under sec. 1182, R. S., notwithstanding any ownership of the certificate acquired by the county subsequent to such assignment.</p> <p>2. The presumption arising from a tax deed that all the tax proceedings previous thereto were regular (sec. 1176, R. S.), is rebutted by evidence that the county clerk is unable to find in his office any proofs of publication or posting of the notices of the tax sale. And to sustain the deed, in such case, the parol evidence must show that the proper affidavits of such publication and posting were in fact filed, and that they stated the facts required by law to be stated therein. General statements of a witness, who was the county treasurer at the time of the tax sale, that affidavits were filed and that they fulfilled the requirements of the law, are insufficient.</p> <p>3. The point that the bill of exceptions in this case is not certified to contain all the evidence not having been made until the oral argument, and the evidence in regard to the tax deed which is the sole basis of the respondents’ title being apparently fully stated, it is held that the objection to the record should not prevent a reversal of the judgment.</p>

<p>APPEAL from the Circuit Court for Portage County.</p> <p>Action to set aside and cancel, on the ground of fraud, a conveyance of land executed by the plaintiff to the defendant Robert Feldman, and also a mortgage executed by the defendants Robert Feldman and Betsy .Feldman,, his wife, to the defendant Samuel Feldman. The facts are stated in the opinion. Samuel Feldman appeals from a judgment in favor of the plaintiff.</p> <p>In addition to cases referred to in the opinion, they cited Ely v. Wilcox, 20 Wis. 524; Williamson v. Brown, 15 N. T. S54; Losey v. Simpson,, 11 N. J. Eq. 246; Wickes v. Lake, 25 Wis. 71; Le Neve'v. Le Neve, 2 Lead. Cas. in Eq. 109, note on page 280 (4th Am. ed.); 1 Story’s Eq. Jur. sec. 410a/ 2 Sugden on Tend. ch. 21, sec. 1 (8th Am. ed. p. 543, and note a).</p> <p>They cited Buck v. Holloway's Devisees, 2 J. J. Marsh. 180; Wickes v. Lake, 25 Wis. 71; Bergeron v. Bichardott, 55 id. 129; McClellan v. Scott, 24 id. 81; Kluender v. Fenske, 53 id. 118; Brinkman v. Jones, 44 id. 519; Metropolitan Bank v. Godfrey, 23 Ill. 579; Pell v. McElroy, 36 Cal. 268; 2 White & Tudor’s Lead. Cas. in Eq., part 1, p. 185; Bump on Fraud. Conv. 31.</p>

<p> Arrest and bail: Action for conversion of property lost in gambling: Tort or contract? </p> <p>Under our statutes an action to recover the value of property lost in gambling, and which the defendant has converted to his own use, is one in tort, and the defendant may be arrested therein.</p>

<p>APPEAL from the Circuit Court for Portage County.</p> <p>The will of Spencer Ide having been duly admitted to probate, and letters testamentary having been issued’ to G. ~W. Coxbead, the county court, on May 5, 1887, ordered that six months from and after that date be allowed and limited to creditors to present their claims against said deceased for examination and allowance, and “that notice of the time and place when and where said court will receive, examine, and adjust such claims, be given by publishing the same for four successive weeks,” etc. In pursuance of said order a notice was published, reciting that six months from and after May 5,1887, had been allowed for creditors to present their claims, and stating that the county court would “on the first Tuesday, being the 5th day of. July, and on the first Tuesday, being the 6th day of December, 1887, at the probate office in the city of Stevens' Point, Wis., receive, examine, and adjust all claims and demands of all persons against the said Spencer Ide, deceased.” This notice was signed: “ J. R. KiNgsbuey, County Judge.”</p> <p>Afterwards, on petition of Louis Brill, filed February 6, 1888, the county court, on April 4, 1888, ordered that the time for creditors to present their claims against said estate be extended six months from November 5, 1887. From that order the executor appealed to the circuit court j and from an order of the latter court, affirming the order of the county court, he has appealed to this court.</p>

<p>Accident Insueanoe. (1) Presumption that injuries were accidental. (2) Stipulated exceptions: Conditions precedent.</p> <p>1. Ia an action upon an accident insurance policy, the presumption is that bruises and wounds upon the person of the insured, and which caused his death, were the result of accident.</p> <p>2. Stipulations not contained in the body of an accident policy, but indorsed thereon, and providing that the insurance shall not cover injuries resulting from certain specified causes, are not in the nature of conditions precedent, but if anything therein will defeat the action it is a matter of defense.</p>

The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion: This action was brought to recover damages of the defendant for negligently causing the death of Daniel McDonald.

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

<p>APPEAL from the Circuit Court for Marathon County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>This action was commenced April 10, 1886, to recover boomage charges on certain logs of the defendant by the plaintiff in its booms on the Wisconsin river at Wausau. The complaint, among other things, alleges, in effect, that October 1, 1882, and during all the time hereinafter mentioned, the defendant was the owner of and operated a sawmill in Wausau, adjacent to the plaintiff’s said boom; that on and prior to said date he was the owner of a quantity of saw-logs and round timber, described, then King above said boom on or in said river or the tributaries thereof; that neither at that time nor at any time thereafter could any part of the same be delivered at said mill without first being received in the plaintiff’s said boom and therein stored, sorted, and divided by the plaintiff,— all of which facts have at all times been well known to the defendant; that the defendant also well knew that the plaintiff was entitled to receive payment for its services for all logs and timber stored, sorted, and divided by it in said boom, at the rate of fifty cents per 1,000 feet, board measure; that between October 1, 1882, and November 11, 1882, the plaintiff received 281,807 feet, board measure, of logs belonging to the defendant in said boom, and therein stored, sorted, and divided the same for the defendant, for which it was entitled to $140.90; that no part thereof has been paid, except $100, June 16, 1883; and claims a balance thereon of $40.90, with interest.</p> <p>For a separate and second cause of action, the complaint, among other things, alleges that between April 1, 1884, and December 10, 1884, the plaintiff received in its boom 4,717,705 feet of logs and timber, described, and therein stored, sorted, and divided the same for the defendant, and was entitled therefor to $2,358.85; that no part thereof has been paid, except $2,047.26, being the aggregate amount of the several sums stated, leaving a balance of $311.60.</p> <p>The defendant, answering said first cause of action, denies that plaintiff received and stored the amount of logs stated in the complaint, and alleges that he paid the plaintiff, prior to the commencement of this action, in full for all logs handled or stored by it for him during the year 1S82; and for a separate defense to the second cause of action alleged in the complaint, and by way of counterclaim, the defendant alleges, in effect, that during the year 1884, upon the defendant’s request, the plaintiff received 4,717,705 feet of the defendant’s logs into its boom, and undertook to and did store said logs, and undertook to sort and deliver the same at the defendant’s mill, for which the defendant agreed to pay fifty cents for each and every thousand feet so stored, assorted, and delivered at his said mill; that the plaintiff, disregarding its obligations to assort and deliver at the defendant’s mill, so carelessly and negligently handled and assorted the 4,717,705 feet mentioned in the complaint that a large quantity of the same never reached the defendant’s said mill, and that, through the carelessness, negligence, and mismanagement of the plaintiff, 38,950 feet thereof were never delivered to defendant’s mill, but were wholly lost to the defendant, whereby he suffered damages in the sum of $311.60; that through the carelessness and negligence of the plaintiff in handling other of said logs, 26,990 feet of the same were turned into the boom of the Alex. Stewart Lumber Company, 2,500 feet thereof into the boom of Leahy & Beebe, and 17,350 feet thereof into the boom of Parcher & J. & A. Stewart & Co., at Wausau, without the defendant’s consent and in violation of the agreement to deliver the same at his mill, whereby he was damaged in the sum of $25 additional to the sum aforesaid.</p> <p>The plaintiff replies to the counterclaims, and in effect denies each and every allegation thereof, except as therein admitted; and further replying to the said counterclaims, the plaintiff in effect alleges that during the year 1884 it was only bound to perform the duties of storing, sorting, dividing, and delivering logs and timber with reasonable care and diligence; that it does not now, nor did it in 1884, or at any other time, in any manner insure the owners of logs and timber in its boom against loss or destruction of the same from floods or any other cause which the exercise of reasonable care and protection . on the part of the plaintiff could not avoid; that the river where said boom is situated is, and always has been, subject to sudden freshets, which float the logs down to said boom suddenly, and in such large quantities and with such force that it is not possible for the plaintiff, by the exercise of reasonable care and diligence, to prevent the same from being driven under and through the booms and past the divides, and floating into parts of said boom further down the stream than the mills for which they may be designed; that considerable numbers of the smaller logs coming to said boom each year become so water-soaked, without any fault or negligence of the plaintiff, that they sink below other logs, and by the action of the water are carried under the booms to parts of the boom below the mills for which.they may have been designed; that, when logs become so misplaced, the work of taking them back up the current to the mills for which they are intended is generally so great and so difficult that the cost thereof would exceed the value of such logs, and such work has never been done by the plaintiff, nor is it under any obligation to perform the same, but, in all such cases, the usage, practice, and course of dealing with reference to such misplaced logs has been to deliver them to any mill further down the stream, the owner whereof would take the same and pay the owner of said logs therefor; that the facts aforesaid, and the said usage, practice, and course of dealing, have always been known to the defendant, and to all other mill-owners at Wausau, and no objection has ever been made by any of said mill-owners, nor by the defendant, but, on the contrary, the plaintiff and defendant, not only in prior years, but also in 1884 and 1885, acted upon and followed said practice, usage, and course of dealing with each other in like cases; that on or about September 10, 1884, the water in said river, where said boom is situated, rose to a great and unusual height, by reason of the heavy rains, so that although the plaintiff used every reasonable precaution, and exercised itself to tbe utmost to prevent it,, tbe violence of the flood drove many millions of feet of logs against the piers running across tbe river in said boom, at the first divide therein above the mill of the defendant, forming at that place a great jam of logs, in which said jam the logs were piled one above the other to a great height, and many of the logs, including some belonging to the defendant, were forced under tbe boom outside tbe divide and carried to other parts of the boom; that many of the logs so carried below said divide were carried into the mill-pocket of the defendant’s mill, and completely filled the same; that-in said jam were many logs belonging to the defendant; that the plaintiff broke and divided out the said jam of logs as soon as possible, and, for the reason that the defendant’s mill-pocket was full of logs, without its fault or negligence, certain logs of the defendant in said jam were passed by the defendant’s mill to other parts of the boom, until room, was made in the defendant’s mill-pocket to store the same, after which all logs belonging to the defendant in said jam, or above said divide, were delivered at defendant’s mill, unless otherwise directed by him; that the plaintiff -was not under obligation to deliver said logs of the defendant, so misplaced in its boom and below defendant’s mill, at his said mill, but that, in accordance with said usage, practice, and course of dealing, all of the logs so misplaced were divided' into the mill-pockets of such mills adjoining the boom further down the river where they could best be' received, and a correct scale of all logs so delivered was kept by the plaintiff, together with the mill to which each of such logs was delivered, and the same was given to the respective owners of such logs; that, pursuant to said usage, practice, and course of dealing, the 38,950 feet mentioned were turned by the plaintiff into the mill-pocket of the McDonald Lumber Company3 and the 26,990 feet mentioned were turned into the mill-pocket of the Alex. Stewart Lumber Company, and a correct statement of the logs so turned into each, of said pockets was duly given to the defendant in accordance with said usage, practice, and course of dealing, and thereupon, and by reason of such usage, practice, and course of dealing, the mill-owners to whom said logs were so delivered became liable to the defendant therefor.</p> <p>At the close of the trial of said issues the jury returned a verdict in favor of the plaintiff, and therein assessed his damages at $286.58. From the judgment entered thereon the defendant appeals.</p>

<p>APPEAL from the Circuit Court for Lincoln County.</p> <p>The action was commenced under sec. 1100, R. S., to collect the amount of a tax assessed upon certain saw-logs in the year 1887. The defendant to whom the logs were assessed answered, denying ownership thereof, alleging that they were the property of one John Warns, a resident of Illinois, and denying that it was Warne’s agent or in any way liable for the tax. In the justice’s court judgment was rendered against the defendant. On appeal the circuit court found in favor of the defendant; and from a judgment dismissing the action the plaintiff appeals.</p>

This is an action to reform a policy of insurance against loss by fire, issued by the defendant company to the plaintiffs on a certain dwelling-house, and to recover on the reformed policy for the loss by fire of such dwelling-house. The insurance is for $2,000. The term of the policy is five years from January 23, 1886. The policy contains a large number of conditions and requirements, and specifies many causes of forfeiture.

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion:</p> <p>This was an action to recover an alleged balance due to the plaintiffs from the defendant upon a contract for the sale and delivery of stone. The defendant answered, denying the plaintiffs’ claim, and setting upa counterclaim. The case was tried by the court and a jury. Upon the trial the jury, under the order of the court, found a special verdict. The effect of the special verdict was to negative the plaintiffs’ right to recover against the defendant for anjr amount claimed to be due them from the defendant, and to find in favor of the defendant upon his counterclaim the sum of $115.</p> <p>Upon-the rendition of this verdict the plaintiffs and appellants first moved the trial court, upon the records and files in the. case, the minutes of the court, and the testimony given on the trial of the case, and upon the special verdict of the jury, for judgment in favor of the plaintiffs for the amount of their claim, less the sum of $175, found due to the defendant on his counterclaim. This motion was denied by the court below, and thereafter the plaintiffs made a motion to set aside the verdict of the jury and for a new trial. This motion was granted by the court, and the following order was made upon such motion:</p> <p>“ The plaintiffs’ motion in this action to set aside the verdict of the jury and grant a new trial herein, having been duly argued before this court upon the 6th day of October, 1888, George E. Sutherland, as attorney for the plaintiffs, appearing in favor of said motion, and Fiebing & Killilea, as attorneys for the defendant, in opposition thereto, and the court being of the opinion that the answer to the fourth question in the special verdict returned by the jury was wholly unsupported by the evidence given on the trial of the cause, and having, on the 3d day, of November, 1888, upon that ground, directed that the verdict be set aside, and a new trial granted herein, upon the condition that the plaintiffs pay-the costs of the former trial, but no written order having been made or signed, it is now ordered that the plaintiffs’ motion for a new trial be, and the same hereby is, granted, upon condition that the plaintiffs pay to the defendant the costs of the former trial, and that this written order be entered as of. the 3d day of Novembér, 1888.”</p> <p>The plaintiffs have appealed to this court, first, from the order denying their motion for judgment in their favor upon the evidence and the special verdict, and also from the order setting aside the special verdict and granting a new trial, and specifically from that part of the order granting a new trial which compels the plaintiffs to pay to the defendant the costs of the former trial.</p>

<p> Alias execution: Amount not included in original: Excessive fees. </p> <p>1. An execution was issued in form for the entire amount of a judgment, but the plaintiff’s attorneys indorsed thereon a direction to the sheriff to collect the judgment less $1,000, which it was supposed was secured by mortgage and would be included in a subsequent foreclosure judgment against the same defendant. The execution was .returned unsatisfied as to a part of the sum so directed to be collected. Said $1,000 was not included in the foreclosure judgment, but it was therein adjudged “ that the plaintiff have the right to enforce any claim for the same, so far as said former judgment is unsatisfied.” Held, that an alias execution on the former judgment was properly issued.</p> <p>2. The fact that the sheriff retained too large a sum for his fees and the expenses of levy and sale under the original execution, is not a ground for setting aside an alias execution.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: The complaint alleges two causes of action: First, for putting sixty-nine yards of standing seam tin roofing on the defendant’s factory building in October and November, 1882, at the agreed price of $1.50 per square yard, making $103.50; second, for services and materials furnished by the plaintiff between October, 1882, and May, 1883, in putting eaves-troughs and conductors on said factory building,…

<p> (1-3) Contract for work and labor, or sale? Destruction of goods by fire: Insurance. (1¡.) Court and jury: Construction of contract: Immaterial error. </p> <p>1. A contract to manufacture certain lithographs and engravings as advertisements for the especial, peculiar, and exclusive use of a theatrical manager, adapted to the names and characters of his performances, is a contract for work and labor, and not a sale.</p> <p>2. Where such lithographs and engravings have been manufactured and set aside for such manager according to the contract, but he has failed to pay for them and take them away within the time agreed, their subsequent destruction by fire without fault of the manufacturer does not affect the right of the latter to recover the contract price of the work.</p> <p>3. And the fact that the manufacturer has procured insurance on the goods and collected the amount thereof from the insurer, does not prevent his recovery of the difference between the amount so collected and the amount due on the contract.</p> <p>4. The submission to the jury of questions as to the construction of a contract, properly to be determined by the court as questions of law, is an immaterial error where the findings of the jury have been adopted by the court by refusing to set aside the verdict.</p> <p>See note to this case in. 43 N. W. Rep. 1124.— Rep.</p>

Action to enforce a lien upon logs for supplies furnished to the defendant LLicltey and used in the cutting, hauling, and banking of said logs in Lincoln county. The action was commenced in the municipal court for Lincoln county, April 19, 1888. In that court judgment was rendered in favor of the plaintiffs, and the defendants appealed to the circuit court.

<p>APPEAL from the Circuit Court for Wood County.</p> <p>In June, 1887, the plaintiff was, and still is, the proprietor of a hotel in the city of Grand' Rapids, known as the “ "Witter House,” and until that time ran an omnibus for the carriage of passengers between his hotel, the residences in the cities of Grand Rapids and Centralia, and two railroad depots, one of which is situated in each of said cities. Such cities are separated by the Wisconsin river, and were at that time connected by a free bridge across the river. At the same time the defendant was, and still is, the proprietor of another omnibus line, and engaged in the same business in those cities. On June 29,1887, the plaintiff sold his omnibus, team, and outfit to the defendant, who paid the agreed consideration therefor. At the time of such sale the parties entered into an agreement in writing, signed by them, which is as follows:</p> <p>“Memorandum of agreement made and concluded this 29th day of June, 1887, by and between L. Hathaway of the one part, and M. H. Lynn of the other part, witnessed: The said L. Hathaway having this day sold out his bus line to said M. H. Lynn, now, therefore, in 'consideration of the premises and of the agreement hereinafter contained, the said M. II. Lynn hereby agrees and binds himself regularly and in proper manner hereafter to run a separate bus between the "Witter House and all passenger trains arriving at the Grand Rapids and Centraba depots, for the separate and special accommodation of the traveling public desiring to stop at the Witter House. In other words, to convej'' Witter House customers and Centraba House patrons in separate busses — unusual and temporary accidents excepted and excusing. Also to carry a runner for the Witter House free of charge to and from all such trains. In consideration of the premises, and of the foregoing agreement, the said L. Hathaway hereby agrees and binds himself that, so long as the said M. H. Lynn faithfully carries out the foregoing agreement, he will not put on, nor encourage any one to put on, a bus line in said cities. In case of the violation or disregard of the terms of this agreement, the damages recoverable by the other are hereby fixed and adjusted at the sum of two hundred dollars, to be paid on demand.”</p> <p>This action was brought to recover $200, as liquidated damages for alleged breaches by defendant of such agreement. The breaches assigned are (1) that several times between December, 1887, and April, 1888, the defendant failed to run a separate omnibus to and from certain trains; and (2) that since April 11, 1888, the defendant has wholly failed to perform his said agreement. The defendant in his answer alleges full performance of his contract to April 11, 1888, and that he was excused from such performance thereafter by the destruction of the bridge between the two cities, which had not been rebuilt. He further alleges that after that date, and before the action was commenced, the plaintiff released him from the obligation further to perform such contract.</p> <p>The parties were the only witnesses on the trial whose testimony is of any importance. The only material conflict in their testimony relates to the special breaches of the agreement charged in the complaint to have occurred between December, 1887, and April, 1888, and to the release of defendant by plaintiff, as alleged in the answer, from the performance of the agreement. It appears that the bridge was carried away by an ice jam on April 11, 1888, and the river between the two cities could not be crossed with teams until about the middle of May, when a ferryboat was put in operation, upon which teams and vehicles could be transferred across the river. Tolls were charged therefor. Further reference to the testimony will be found in the opinion.</p> <p>The jury returned a verdict for the defendant. A motion for a new trial was denied, and judgment entered for the defendant pursuant to the verdict. The plaintiff appeals from the judgment.</p>

<p> Mortgages: Satisfaction: Fraudulent conveyance: Subrogation. </p> <p>The plaintiff loaned money to two of the defendants to pay off a mortgage on their land, on the agreement that after such mortgage was discharged of record they should execute to him a new mortgage to secure the loan. Instead of executing the new mortgage said defendants, with intent to defraud the plaintiff, conveyed the land to the third defendant, who had full knowledge of the facts. Held, that the plaintiff was entitled to have the satisfaction of the old mortgage canceled, and to be subrogated to the rights of the mortgagee.</p>

<p>APPEAL from the Circuit Court for St. Croix County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>The complaint alleges, in effect, that at the times named the plaintiff owned and possessed a certain steam ferryboat, known as the “ George Wilcox, Jr.,” with her tackle and furniture, of the value of $1,000, designed to run across the St. Croix river between South Stillwater, Minnesota, and Hudson, Wisconsin, during the season of 1888; that in April, 1888, the defendant wrongfully, with force and arms, seized and took and carried away said boat, and wrongfully converted and disposed of the same, to the plaintiff’s damage in the sum stated.</p> <p>The answer consists of denials, and alleges: “That during the fall of 1887 said ferry-boat sunk off the western shore of Lake St. Croix, within the corporate limits of the state of Minnesota; that said ferry-boat was indebted to this defendant for fuel used in running said boat the previous season; that in the spring of 1888, and while said boat was entirely submerged and under water, this defendant brought action against said steamboat by a certain. proceeding in rem, in admiralty, in the United States district court for the district of Minnesota, and thereupon the usual monition was issued out of said court,, directing the United States marshal to seize said boat and take the same into custody, that thereafter the court might proceed according to law, and adjudge as to such indebtedness, and, by due and proper order, direct the condemnation and sale of said steamboat; that the United States marshal, under and by virtue of the command in said monition and writ, visited South Stillwater, where said steamboat was so sunk and submerged in Lake St. Croix, for the purpose of taking possession of said steamboat, and, finding said steamboat was submerged and beyond his reach, the United States marshal declined to take said steamboat into his possession.”</p> <p>There was evidence on the trial tending to prove that on April 13, 1888, the United States marshal, accompanied by the attorney for the plaintiff in.the attachment proceedings, went to'South Stillwater with the intention of attaching the boat for the claim held against her mentioned in the answer, and having at the time a writ issued out of the United States court for the seizure of the boat, but that, on reaching the boat and ascertaining her condition, they concluded not to serve the writ and did not do so, but that, nothwithstanding, the marshal, with said attorney, went and saw the plaintiff’s agent in charge of the boat, and told him and led him to believe that they had in fact attached the boat, and warned such agent not to interfere with it; and that subsequently, on demand being made for the possession of the boat by such agent, said attorney refused to surrender such possession.-</p> <p>At the close of the trial the jury returned a verdict in favor of the plaintiff for $456.39. Erom the judgment entered upon such verdict the defendant appeals.</p> <p>To the point that the acts of the defendant and of the United States marshal acting for the defendant were not such as would constitute a wrongful conversion of the property, they cited Libby v. Murray, 61 Wis. 311; Fer-nald v. Olíase, 37 Me. 289; Watts v. Willed, 2 Hilt. 212; Band v. Sargent, 23 Me. 326; Mills v. Wan Gamp, 41 Mich. 645; Hielcey v. Hinsdale, 12 id. 100; Hemmenway v. Wheeler, 14 Pick. 410; Bryant v. Osgood, 52 N. H. 185; Godlagher v. Bishop, 15 Wis. 276; Williams v. Morgan, 50 id. 548.</p> <p>They cited Cooley on Torts, 448; 6 Bac. Abr. 677; Donahue v. Shippee, 8 Atl. Eep. (R. I.), 541; Evans v. Mason, 64 N. H. 98; 1 Chitty PI. 155; Gallagher v. Bishop, 15 Wis. 276; Neilau v. Hanny, 2 Car. & K. 710; Needham v. Bawbone, 6 Q. B. 771n; Balter v. Beers, 64 N. H. 102; Baldwin v. Odie, 6 Mod. 212; Bristol v. Burt, 7 Johns. 25*4; MoOombie v. Davies, 6 East, 538.; Anonymous, 12 Mod, 344.</p>

<p>APPEAL from the Circuit Court for St. Croix County.</p> <p>Action upon a policy issued by the defendant company, insuring the-plaintiff against loss.of, or damage to, his barn and certain personal property by fire, for three years from August 17, 1887, in the sum, in the aggregate, of $850. On November 11, 1887, the barn and most of the insured personal property were destroyed by fire.</p> <p>The policy contains a stipulation in the form usual in fire insurance policies, requiring the assured, in case of loss, to render to the company sworn proofs of loss containing certain specified information within thirty days after such loss, and that the loss is not payable until after such proofs are so rendered. No proofs of loss were ever rendered to the company, but the plaintiff claims the same were waived by the company. To establish such waiver the plaintiff relies exclusively upon certain conversations had about a week after the fire. One of these was between himself, his son, who acted as his interpreter (the plaintiff not understanding the English language), and two agents of the defendant company,— McCurdy, its general agent and adjuster, and Gilbert, one of its local agents, who issued the policy in suit. These persons met accidentally, and the conversation was concerning the plaintiff’s loss. The other conversations were between Gilbert and himself and son.</p> <p>The testimony on the part of the plaintiff as to what occurred in the conversation with McCurdy is to the effect that at the request of McCurdy plaintiff’s son made a statement to him of the property destroyed and its value, of which statement McCurdy made a memorandum in writing; and that McCurdy disputed the accuracy of such estimated value, claiming it was too large, but finalty offered plaintiff $600 in settlement of his claim; that plaintiff refused to accept such offer, and McCurdy refused to pay more than $600 on account of his loss, and intimated to the plaintiff that if be did not accept the offer he would have to sue the company.</p> <p>On the part of the defendant, the testimony is that McCurdy 'did not offer to pay $600, but said if plaintiff would agree to settle for that sum he would advise the company to pay it; and that when plaintiff refused to take that sum McCurdy told him the whole matter must stand as though their interview had not taken place, and the plaintiff must seek his remedy according to the terms of the policy. The testimony is quite voluminous, but the above is believed to be a fair statement of the substance thereof.</p> <p>At the close of plaintiff’s testimony, counsel for defendant moved for a nonsuit, which motion was denied. He also asked the judge to instruct the jury to return a verdict for the defendant. The judge refused so to instruct, but submitted the question of waiver to -the jury on the testi1 mony. The jury found for the plaintiff, and assessed his damages at nearly the full amount of insurance written in the policy. A motion for a new trial was denied, and judgment for the plaintiff entered pursuant to the verdict. The defendant appeals from the judgment.</p> <p>They contended, inter alia, that there was no evidence to show that either the general adjuster of the company or its local agent had authority to waive presentation of the proofs of loss. A waiver can be made only by one having sufficient authority to make it, and such authority must be shown. Barre v. Council Bluffs Ins. Co, 76 Iowa, 609; Hollis v. ¡State Ins. Co. 65 id, 454; Wood, Ins. sec. 396; Lohnes. v. Ins. Co. of N. A. 121 Mass, 439; Bush v. Westahester F. Ins. Co. 63 N. Y. 531; Bowlin v. Hehla F. Ins. Co. 36 Minn. 433; Han-hins v. Boohforcl Ins, Co. 70 Wis. 1. Plaintiff is conclusively presumed to have had knowledge of the conditions in the policy, and to have contracted with reference to them. 0leaver v. Tr cider s’ Ins. Co. 65 Mich. 527; Hankins v. Rockford Ins. Co. 70 Wis. 1. The conduct of the agents of the company was not such as to estop it from setting up the failure to furnish proofs of loss. Insurance Co. v. Eg-gleston, 96 U. S. 572; Underwood v. Farmers’ J. 8. Ins. Co. 57 N. Y. 505; Ripley v. FEtna Ins. Co. 80 id. 136; 9 Am. & Eng. Ency. Law, 32; May, Ins. sec. 505; Engebretson v. Ilelda E. Ins. Co. 58 Wis. 301.</p> <p>They argued, among other things, that the general agent and adjuster of the companj^ could waive the provisions of the policy as to the presentation of the proofs of loss. Renier v. Dwelling House Ins. Co. 74 Wis. 89; Cans v. St. Paid F. db M. Ins. Co. 43 id. 108; Am. Ins. Co. v. Gallatin, 48 id. 36; Shafer v. Phoenix Ins. Co. 53 id. 361. A provision in a policy that no act or omission of the company or any of its officers or agents shall be deemed a waiver of a full and strict compliance with the conditions thereof, except it be a waiver in express terms and in writing, signed by the president or secretary of the company, is ineffectual to prevent a waiver of presentation of proofs of loss by a general agent. Renier v. Dwelling House Ins. Co. 74 Wis. 89; Steen v. Niagara F. Ins. Co. 89 N. Y. 315; lamberton v. Connecticut F. Ins. Co. 39 Minn. 129; Wildcats v. N. W. Muí. L. Ins. Co. 81 Ind. 308; Wheaton v. North British db M. Ins. Co. 76 Cal. 415; King v. Council Bluffs Ins. Co. 72 Iowa, 310; Niagara Ins. Co. v. lee, 73 Tex. 641; Eastern R. Co. v. Relief F. Ins. Go. 105 Mass. 570; Indiana Ins. Co.v. Capehart, 108 Ind. 270. The agent Gilbert also had authority to waive the presentation of proofs of loss. Gans v. St. Paul F. db M. Ins. Co. 43 Wis. 108; Roberts v. Continental Ins. Co. 41 id. 321; Schomer v. Hekla Ins. Co. 50 id. 575; Winans v. Allemania Ins. Co. 38 id. 346; Alexander v. Continental Ins. Go. 61 id. 422; Am. Ins. Go. v. Gallatin, 48 id. 36; Palmer v. St. Paul F. & M. Ins. Go. 44 id. 205; Bartlett v. Fireman’s F. Ins. Go. 41 N W. Rep. (Ia.), 601; Silverberg v. Pheñios Ins. Go. 67 Cal. 36. The acts of the agents of the company were such as to estop it from relying upon the failure to furnish proofs of loss. McBride v. Republic F. Ins. Go. 30 Wis. 568; Ziellce v. London Ass. Gorp. 64 id. 445; Commercial F. Ins. Go. v. Allen, 1 South. Rep. (Ala.), 202; Niagara Ins. Co. v. Lee, 73 Tex. 641; Security Ins. Go. v. Fay, 22 Mich. 467; Smith v. Home Ins. Go. 47 Hun, 30; Badger v. Phoenix Ins. Go. 49 Wis. 400; Am. Gent. Ins. Go. v. Sweetzer, 116 Ind. 370; NicJcerson v. Niclc-erson, 80 Me. 100; Lebanon M. Ins. Go. v. Erb, 112 Pa. St. 149; Susquehanna- M. F. Ins. Co. v. Halloclc, 14 Atl. Rep. (Pa.), 167; Phoenix Ins. Go. v. Spiers, 87 Ky. 285; Dialv. Valley M. L. Asso. 29 S. C. 560; May, Ins. (2d ed.), secs. 505, 507.</p>

<p>APPEAL from the Circuit Court for Eau Claire County.</p> <p>Action to recover a balance alleged to be due to the plaintiff for lumber sold and delivered to the defendant. The facts will sufficiently appear from the opinion. There was a verdict for the plaintiff, and from the judgment entered thereon the defendant appeals.</p> <p>They'cited Thomas v. Tolforcl, 70 Wis, 155; Randall v. JT. IV. Tel. Co. 54 id. 140; Calloway v. Week, id. 604; Lingham v. Eggleston, 27 Mich. 324; Blacb-burn on Sales, 22, 23.</p>

This action was brought against the principal defendant, Bessinger, pursuant to ch. 233, Laws of 1880 (2 S. & B. Ann. Stats. 1578), on a demand not then due. An attachment was issued based upon an affidavit of the attorney for the plaintiffs, and the appellant, 8am,uel Reigelman, was summoned as garnishee. He answered denying any liability to the defendant. Plaintiffs took issue on such answer.

Action to recover damages ou account of the defendant’s delay in furnishing cars for the transportation of live-stock. The facts as found by the special verdict were substantially the same as those stated in the first nineteen findings of the verdict on the former trial (71 Wis. 374-5).

<p>APPEAL from the Circuit Court for Bane 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 Cassoday:</p> <p>The amended complaint, in effect, alleges the incorporation and organization of the plaintiff, usually called! the ■“ Chippewa Cornpomy,” on June 15, 1881. That thereupon. ' the work of locating and constructing its railway was commenced and prosecuted until the fall of 1882, when the same was completed from the Mississippi to Eau Claire, with a branch from near the mouth of the Eed Cedar river by way of Menominee to Cedar Falls, and from that time the same has been operated as a railway company engaged in the business of a common carrier. That the defendant the Chicago, St. Paid, Minneapolis &■ Omaha Pailway Company, usually known as the “ Omaha Company” was organized during all the times hereinafter mentioned. That June 15, 1881, it was the owner, among other things, of a railway extending from Elroy, through Eau Claire, to Hudson, and thence to St. Paul. That it was also the owner of a railway from Hudson, in a northeasterly direction, a distance of about 120 miles, known as the “North Wisconsin Eailway.” That June 15, 1881, the defendant the Chicago, Milwaukee & St. Paul Eailway Compan}7, usually kuown as the “ St. Paul Company,” was engaged in operating* railways in the states of Wisconsin, Illinois, Minnesota, and Iowa, and the territory of Dakota. That one of its lines extended from La Crosse, by way of Wabasha in' Minnesota, to St. Paul. That about 3,000 miles thereof was in the states of Minnesota and Iowa and the territory of Dakota, constructed over prairie lands almost entirely destitute of timber and lumber. That said Chippewa Company was organized by parties interested in and friendly to the St. Paul Company, with a view of connecting the lines of said lasfcnamed company with'the extensive prairies and timber lands in northwestern Wisconsin, and of reaching the ports of Lake Superior, and connecting them with said system of railways, and operating the same in connection with the St. Paul Company, and eventually transferring the same to the St. Paul Company, to be made a part of and be operated with it as a part of its system. That with that view it determined to and did construct said Chippewa Railway. That arrangements were made by said company for the extension of said railway from Cedar Ralls, on this route, to Lake Superior, passing over the line of that part of the land grant hereinafter mentioned, more particularly from Superior to the point of intersection at or near Yeazie with the North Wisconsin Railway. That, at or about the time of the organization of the plaintiff company there was organized a railway company, by the name of the “Chippewa Ralls & Northern Railway Company,” with the object of constructing a railway from Chippewa Ralls in a northerly direction, by way of Chetek, Rice Lake, and said land grant intersection at or near Yeazie, and thence, either by its own line or a branch of said Omaha Company, to Superior. That that company was organized in the interest of said Omaha Company, and by the officers thereof, and controlled and substantially owned by that company. That it proceeded, with the assistance of said Omaha Company, to construct its road from Chippewa Falls, on the route indicated, towards Superior. That the Omaha Company subsequently and prior, to January 10, 1882, acquired the ownership in form of said road so commenced and partially constructed by said company, and is now the owner thereof. That the lines of railway proposed to be constructed by the plaintiff and by the Chippewa Falls & Northern Railway Company and said Omaha Company were identical from Chetek northerly to Superior, a distance of about 125 miles.</p> <p>The complaint further alleges that by the acts of Congress of June 3, 1856, and May 5, 1864, grants of land, described, were made to Wisconsin, among other things, for the construction of a railway from Madison or Columbus, by way of Portage City, to St. Croix, at a point described, and from thence to the west end of Lake Superior, and to Bayfield, upon the conditions named. That March 4, 1874, the legislature of the state accepted said grants, and thereupon granted to the Chicago & Northern Pacific Air-Line Railway Company all the right, title, and interest which the state then had or might thereafter acquire in or to that portion of the lands granted by said acts of Congress as was or could be made applicable to the construction of that part of the railway lying between the points of intersection mentioned and the west end of Lake Superior, upon the express condition that said last-named company should construct, complete, and put in operation that part of its said railway above mentioned as soon as a railway should be constructed and put in operation from Hudson to said point of intersection, and within five years from said last-mentioned date, and should also construct and put in operation a railway from Genoa northerly at the rate of twenty miles per year; which said grant was duly accepted by said last-named company, May 1, 1874. That the name of said last-named company was afterwards, and about 1874, changed to the Chicago, Portage & Superior Railway Company, commonly known as the “ Portage & Superior Company.” That by an act of the legislature of the state approved March 16, 1878, the time limited for the construction and completion of said last-named railway was extended for the term of three years, or to about May 1, 1882. That for more than two years prior to January 10, 1882, a railway had been completed and put in operation from Hudson to said point of intersection, as stated, but that said Portage & Superior Company had not, on or prior to said last-mentioned date, completed or constructed any portion of said land-grant road from said point of intersection to Superior, and had not constructed or put in operation any part or portion of any railway, and was not the owner of any railway whatever. That said last-named company was then wholly insolvent, and unable to complete or build any portion of said land-grant road or put the same in operation, and that it had no means or ability to complete, construct, or operate a railway, and no property of any kind or description. That one Barnes, of Hew York, was the owner of nine tenths of the bona fide stock thereof, and was, January 10, 1882, and for several weeks prior thereto had been, offering to sell his stock entire, with the control of said company and all the franchises thereof, to different parties, especially to the plaintiff and the St. Paul Company and the Omaha Company.</p> <p>The complaint then alleges that it was well understood by all parties that the said land grant would lapse to the state on May 1, 1882. That the plaintiff, in its own behalf and in the interest of the St. Paul Compan}'', and the Omaha Company, were both proposing to apply to the legislature for said grant, and were both proposing to construct their line of road over the line of said land-grant road; and, in view of the facts stated, the plaintiff and the Omaha Company, respectively, were proposing to ask the legislature to confer said land grant upon them, and thus prevent the grant from lapsing and reverting to the United States, and thereby be lost to the state. That it was apparent to both parties that in case the plaintiff, aided and assisted by the St. Paul Company, and the Omaha Company should enter into a contest before the legislature for that grant, they might defeat each other, and that no disposition of said land grant would be made, and that said road would not be constructed, and that said land grant would probably fail of its object and become forfeited. That it was manifest that only one road from the Chippewa valley, on the line indicated, to Lake Superior, was needed by the public for the transaction of business, and that, if an arrangement could be made by which both the companies interested could have traffic arrangements over the road to be constructed, all parties would be better accommodated and all interests better subserved than by the construction of two parallel and competing lines. That in view of the situation, and on January 10, 1882, said companies met, by their respective representatives and officers, and entered into a contract in due form of law, in the words and figures, omitting signatures, following:</p> <p>“This agreement, made this 10th day of January, in the year A. D. 1882, between the Chicago, St. Paul, Minneapolis (& Omaha Railway Company, party of the first part, and the Chicago, Milwaukee & St. Paul Eailway Company, party of the second part, witnesseth, the party of the first part, in consideration of the agreements of the party of the second part hereinafter expressed, agrees: (1) That in case the party of the first part shall obtain the land grant heretofore granted to the Chicago, Portage & Superior Eail-way Company in the state of "Wisconsin, either by grant of the legislature or negotiation with the said Chicago, Portage & Superior Eailroad Company, or by both such grant and negotiation, the said party of the first part will give to the said party of the second part one equal fourth part of the lands received under said grant. (2) That it will grant to said party of the second part all rights, franchises, and property which it may obtain from the said Chicago, Portage & Superior Railway Company south of the junction of said road with the main line of the North Wisconsin Railway, including all grade and right of way of said company between said junction and the city of Chicago, which the party of the first part may acquire. (3) That it will make a contract of lease with the said party of the second part, giving said party of the second part an equal right with the party of the first part to run its trains from Chippewa Palls (or, if the party of the first part shall construct a road from Eau Claire to Chippewa Falls, then from Eau Claire by way of Chippewa Falls) to Superior City, upon the following terms: The party of the second part shall pay to the party of the first part sis per cent, interest per annum upon one half of the actual cost, upon a cash basis, of said railroad, and shall also pay for repairs of the same upon the same, upon the basis of wheelage. 'The option to take this agreement of lease shall remain to the party of the second part for the term of six months from the time the road is completed so as to admit of the running of trains through from Chippewa Falls to Superior City.</p> <p>“ The party of the first part further agrees that it will not extend its Neillsville line, and both of the parties hereto agree that they will not extend their lines into the territory between Beaver, on the Wisconsin Valley Railroad; Neillsville,'on the Chicago, St. Paul, Minneapolis c& Omaha Railroad; Abbotsford, on the Wisconsin Central Railroad,— without a further agreement between them.</p> <p>“ In consideration of the above agreement, the said party of the second part hereby agrees that it will not make any efforts to procure said lands to be granted to it, or aid or assist any other party to procure the same, except the said party of the first part, and that it will render to said party of the first part all reasonable and proper assistance which it may be able to give in procuring said land grant to be given to the said party of the first part by the legislature, and will aid said party of the first part in any negotiation that it may set on foot with the said Chicago, Portage & Superior Eailroad Company for the purpose of acquiring the same.</p> <p>“ It is further agreed and understood that in case it shall become necessary to pay the said Chicago, Portage & Superior Eaihvay Company any sum of money in order to procure an assignment of its interest in said grant, that' the party of the second part shall pay its proportion of said amount, being as one to three, or relinquish all rights to any portion of said grant.. It is further understood and agreed that the question of the amount of land pertaining to said grant, and the division thereof between said companies as above provided, shall be left to the determination of Philetus Sawyer and Alexander Mitchell, and that the decision upon that subject shall be final and conclusive between the parties.</p> <p>“In testimony whereof the parties to these presents have caused the same to be executed by their respective presidents, and their corporate seals to be affixed hereto, attested by their respective secretaries, the day and year first above written.”</p> <p>The complaint then alleges that said contract was in fact executed by the St. Paul Company in its own behalf and as representing the plaintiff. That the plaintiff and the St. Paul Company, in good faith, relying upon the agreements of said Omaha Company in said contract contained, made no application to the legislature, then just convening, to have said land grant conferred upon the plaintiff, and ceased ail negotiations then pending between the plaintiff and said Portage & Superior Company, and between the St. Paul Company and said Portage & Superior Company, for the purchase of the stock and property of said compan}1', and rendered to said Omaha Company all such reasonable and proper assistance as they were able to give in the negotiations between it and said Portage & Superior Company for the purchase of said grant. That immediately after the making of said contract the Omaha Company renewed its negotiations with the Portage & Superior Company, or the agents of said Barnes, for the purchase of said stock, property, and rights thereof. That said negotiations soon thereafter resulted in such purchase. That the actual transfer of said stock, after said negotiations were completed, was, by the direction of the Omaha Company, made to one Cable, a friend of said company, who took the transfer thereof to himself, in his own name, but for the benefit of the Omaha Company. That the whole consideration therefor was paid to Barnes by the Omaha Company. That subsequently Cable transferred all of said stock to the Omaha Company or to some other person for its benefit. That, as such owner, the Omaha Company consented to the legislation thereafter procured, resuming said land grant to the state and conferring the same upon the Omaha Company. That, in consequence thereof, no objéction was made by the Portage & Superior Company, or the parties entitled to represent the same, but they in fact consented thereto. That, immediately after said purchase, the Omaha- Company applied to the legislature to resume said grant from said Portage & Superior Company, and to confer the same upon the said Omaha Company, and prepared a bill for that purpose, which was introduced in the legislature and passed, the same being chapter 10 of the Laws of 1882, approved February 16, 1882. That in and by said act the legislature revoked and annulled the said land grant theretofore held by the Portage & Superior Company, and conferred the same upon and granted it to the Omaha Company, with all the right, title, and interest which the state then had or might thereafter acquire in and to the lands granted to said state by said acts of Congress to aid in the construction of such railway, which were applicable under said acts to the construction of that portion thereof which lay between the-west end of Lake Superior and said point of intersection. That said grant was- upon the express condition that the' Omaha Company should continuously proceed with the construction of the railway then in part constructed by it between said point of intersection and the west end of Lake Superior, and should complete the same so as to admit of the running of trains thereover on or before December 1, 1882; and upon such completion the Omaha Company became entitled to patents for all lands applicable under said acts to the land-grant road so constructed. That in making such puróhase and the passage of said act the St. Paul Company and the plaintiff, in pursuance of the contract above set forth, rendered to the Omaha Company all such reasonable and proper assistance as they were able to give in the premises, and the St. Paul Company and said plaintiff in good faith in all respects observed, performed, and to-their utmost ability carried out the terms and provisions of said contract. That thereby said grant was conferred upon the Omaha Company.</p> <p>The complaint further alleges that June 10, 1882, and while the Omaha Company was engaged in constructing said railway, the St. Paul Company and the plaintiff applied to the Omaha Company, and requested that said contract so executed January 10, 1882, should be so changed as to make the plaintiff a party thereto, to which said Omaha Company consented; and thereupon a tripartite contract was prepared between them and executed, making the Omaha Company party of the first part, and the St. Paul Company party of the second part, and the plaintiff party of the third part, and dated as of January 10, 1882. That by the contract so modified the Chippewa Company Avas thereby entitled to the benefits of the first, third, and part of the fourth subdivisions of the contract, and the St. Paul Company the benefits of the second and part of the fourth subdivisions. That otherwise said second contract Avas a cop}^ of the first. That at the same time, and in consequence thereof, the contract so made January 10,1882, Avas surrendered and canceled.</p> <p>The complaint further alleges that prior to December 31, 1882, the Omaha Company constructed such railway between said point of intersection and the Avest end of Lake Superior, a distance of about sixty-two miles, and completed the same so as to admit of the running of trains over the same, on or before December 1,1882, and thereby became entitled to the land so granted to it by ch. 10, Laws of 1882, and entitled to receive patents therefor. That said lands amounted to about 400,000 acres, which were so granted to the Omaha Company, and the same were mostly covered with a heavy growth of pine and other valuable timber, and were, at the time of said last-named grant, of the ATalue of $2,000,000 and over. That during 1882 the Omaha Company also constructed a line of railway, formerly known as the “ Chippewa Falls & Northern,” but now as a part of the Omaha Company's lines, from said Chippewa Falls to Avithin about ten miles from the said point of intersection, and prior to June 1, 1883, the Omaha Company completed such line or road to Veazie, the said point of intersection. That on June 1, 1883, the said railway Avas completed from Chippewa Falls to Superior, so as to admit of the running of trains through thereon. That, on or about May 1, 1883, the Omaha Company commenced the construction of a lino from Chippewa Falls to Eau Claire, and has nearly completed the same, and the same Avill be ready for the running of trains thereon, on or before September 1, 1884. That when completed it will form a continuous line of railway from Eau Claire, by way of Chippewa Falls, to Superior, completing the Omaha road. That the Omaha Company has received such patents, or claims the right to the same, and has sold and disposed of a large amount of the lands so patented, and parted with the title thereof to third parties, unknown to the plaintiff. That it has also sold and disposed of a large quantity of the timber on said lands to various parties, who have taken and converted the same to their own use. That the plaintiff has in all respects kept and performed, or offered to perform, each and all the conditions and terms of said last-named contract to be kept and performed by it. That the plaintiff had notified the Omaha Company that it had elected to take the contract or lease mentioned in the contract, but that the Omaha Company has hitherto refused, and still refuses, to inform the plaintiff of such amounts, or any of them, and does refuse to convey to the plaintiff any part of said lands, and does refuse to grant unto the plaintiff any contract or agreement giving to the plaintiff an equal right with the Omaha Company to^ run its trains as specified in the contract, and has utterly refused to carry out or comply with the terms of said contract on its part.</p> <p>The complaint prays the specific performance of said second contract, and for an accounting and injunction.</p> <p>To that complaint the Omaha Company demurred on the ground that it did not state facts sufficient to constitute a cause of action, and from the order overruling such demurrer the Omaha Company appeals.</p> <p>They argued, among other things, that the contract is void as against public policy — 1. Because, as a matter of law, it is void on account of its manifestly corrupt and unlawful tendency, irrespective of the question whether anj^thing wrong was intended or accomplished, that was either improper or illegal. Oollins v. Blantern, 1 Smith’s L. Cas. 716, and notes 711-765; Fuller v. Dame, 18 Pick. 472; Clippinger v. Rep-l)augh, 5 Watts & S. 315; Marshall v. B. & O. R. Co. 16 Ilow. 314; Bryan v. Reynolds, 5 Wis. 200; Pollock Cont. 337-8, 381; Holland v. Rail, 1 Barn. & Aid. 53; Alikins v. Jupe, L. R. 2 C. P. Div. 375; Richardson v. Crandall, 48 N. T. 362; Atcheson v. Mallon, 43 id. 147; Lyon v. Mitchell, 36 id. 238; Mills v. Mills, 40 id. 548; Providence Tool Co. v. Morris, 2 Wall. 45, 55 ; Trist v. Child, 21 id. 441; FilsorCs Trustees v. Rimes, 5 Pa. St. 456; Bowers v. Bowers, 26 id. 74; Noel v. Drake, 28 Kan. 265; Rucas v. Allen, 80 Ky. 681; Culick v. Ward, 10 N. J. Law, 87, 185; Bollman v. Loomis, 41 Conn. 581; Rarrington v. Victoria Graving Dock Go. L. R. 3 Q. B. Div. 549; M'eguire v. Convine, 101 U. S. 108; Oscanyan v. Arms Co. 103 id. 261, 269; Fgerton v. Brovmlow, 4 II. L. Cas. 1; Woodstock Iron Co. v. Richmond <& D. Extension Co. 129 U. S. 643, 662. The illegality from public policy cannot be waived. Cardoze v. Swift, 113 Mass. 250; Wright v. Rindskopf, 43 Wis. 348; Oscan-yan v. Arms Co. 103 U. S. 267. No agreement of the parties in parol can aid a written instrument fraudulent and void in law, or illegal on its face. Blakeslee v. Rossman, 43 Wis. 124; Wood v. Lowry, 17 Wend. 492; Edgell v. Rart, 9 N. T. 213; Robinson v. Elliott, 22 Wall. 513; Fuller v. Dame, 18 Pick. 479; Rarrington v. Victot'ia Graving Dock Co. L. R. 3 Q. B. Div. 549; Atcheson v. Mallon, 43 N. Y. 147; Richardson v. Crandall, 48 id. 362. 2. Because it is an agreement to pay compensation for lobby services in procuring legislation. 3. Because it was an agreement to pay for the withdrawal of opposition to a proposed legislative measure, and for stifling an existing opposition thereto. Pingry v. Washburn, 1 Aikens, 264; Gray v. Rook, 4N. Y. 449; Gulick v. Ward, 10 N. J. Law, 78; Fuller v. Dame, 18 Pick. 472; Frost v. Belmont, 6 Allen, 152, 162; Atcheson v. Mallon, 43 N. Y. 147; Mills v. Mills, 40 id. 545; Gibbs v. Smith, 115 Mass. 592. 4. Because the agreement to compensate the other two companies was contingent upon the passage of the proposed act; and any such agreement is illegal and void, as it would be a strong incentive to the exercise of personal and sinister influences to effect its passage. Wood v. McCann, 6 Dana, 366; Clippimger v. Hepbaugh, 5 Watts & S. 313; Marshall v. B. db 0. B. Co. 16 How. 335; Providence Tool Co. v. Norris, 2 Wall. 55; Meguire v. Corwine, 101 U. S. 108.</p> <p>These contentions do not in the least interfere with or denj? the right of any party to appear before the legislature or any committee appointed by it, or before any other public body or officer, in person or by agent or attorney paid for that purpose, and in a manner entirely frank, open, and above board, to advocate and urge the allowance of proper claims, or to urge the adoption of any measure of public or private utility or importance. Smith’s L. Gas. (Am. notes), 692; Bryan v. Reynolds, 5 Wis. 200; Wood v. McCann, 6 Dana, 366; Wildey v. Collier, 7 Md. 273. What they do establish is, that when acts or services of such a character are to be done or rendered, an agreement made for payment to the agent or attornej7 of a contingent fee therefor would be at variance with good morals and the best interests of society. Such an agreement will be deemed contrary to public policy, as giving occasion to fraud and corruption, if not actually corrupt. Smith’s L. Cas. (Am. notes), 692; Sedgwick v. Stanton, 14 N. Y. 289; Wildey v. Collier, 7 Md. 273; Harris v. Roof’s Eodrs, 10 Barb. 489; Rose v. Truax, 21 id. 361; Powers v. Skinner, 34 Yt. 275.</p> <p>contended, inter alia, that the contract as originally made between said companies is valid and not in contravention of public policjn The court cannot presume that the agreement was to use improper means or influences to accomplish the desired end, but only such as -were legal, proper, and right. There is nothing in the contract or circumstances attending its making, from which the court can infer or assume that the parties intended to contract for illegal and improper services; but, on the contrary, all such inferences or assumptions are expressly excluded by the terms of the contract, which provides that only “ reasonable and proper assistance which it may be able to give,” should be afforded. Lorillard v. Clyde, 86 N. Y. 384; Ormes v. Dauchy, 82 id. 443; Curtis v. Gokey, 68 id. 300; Kling v. Fries, 33 Mich. 275; Beal v. Folhemus, 67 id. 130; Norton v. Kearney, 10 Wis. 443; Denison v. Crawford Co. 48 Iowa, 211. Although a contract is admittedly against public policy and could not be enforced, yet where parties have acted under it and made gains or acquired property which is in the hands of one of the parties, a court of equity will compel him to account to the other part}1- for his interest therein; and where, in such a case, the parties themselves, after acquiring benefits or property in pursuance of such void contract, which is in the hands of one of said parties, come together and make a settlement or agreement in relation thereto and the disposition thereof, such last agreement will be enforced by a court of equity, and the party having such property will be held to account for it to the other party in pursuance of such last agreement, notwithstanding the original contract was void as against public policy. Planters’ Bank v. U S. Bank, 16 "Wall. 483, 499, 500; Brooks v. Martin, 2 id. 70; Beckman v. Swartz, 50 "Wis. 267, 270; Sharj) v., Taylor, 2 Phill. Ch. 801; Anderson v. Moncrief.', 3 Desauss. 126; Bousfield v. Wilson, 16 Mees. & W. 185; Owen v. Davis, 1 Bailey, 315; Gilliam v. Brown, 43 Miss. 641; De Leon v. Trevino, 49 Tex. 88.</p>

<p>APPEAL from the Circuit Court for Juneau County.</p> <p>Action against the widow and the daughter and only heir at law of one Egbert Cary, deceased, to collect out of the real estate of said deceased which descended to said daughter, the amount due upon a promissory note executed by said deceased in his lifetime. The defendant Mary Jenewein, the daughter, demurred to the complaint generally and on the ground, among others, that it appeared upon the face thereof that said note became due during the lifetime of the maker; that more than three years elapsed after the death of the maker before letters of administration were applied for and before this note was presented for allowance and before any action was brought thereon; and that the same was no longer a lien upon or a valid claim against the real estate of the deceased; and said defendant claimed the benefit of the limitation prescribed in ch. 286, Laws of 1881. From an order striking out such demurrer as frivolous the said defendant Mary Jenewein appeals.</p>

<p>APPEALS from the Circuit Court for Milwaukee County.</p> <p>The case comes to this court on three appeals —; two taken by the defendant and one by the plaintiffs — from orders made therein. The jury returned a special verdict consisting of answers to fifty-three questions submitted to them. The defendant moved for judgment thereon, and appeals from an order denying his motion.</p> <p>The plaintiffs moved to strike out several of the findings as unsupported by proof, and to insert others in their places which, it is alleged, are proved b}7 the uncontradicted testimony, and for judgment upon the corrected verdict. They also asked in their motion that if such relief should be denied, and not otherwise, a new trial of the question of damages only should be granted, and the corrected verdict confirmed in all other respects. The court granted the motion in so far as it asked for a correction of the findings, but refused to give the plaintiffs judgment on the corrected verdict. It also granted the alternative relief prayed, by granting a new trial, to be confined to the question of damages, and confirmed the corrected verdict except only as to damages. The order in that behalf bears date January 12, 1889. The defendant thereupon appealed from the whole of said order, and the plaintiffs appealed from that portion of it w'hich awards a new trial on the question of damages.</p> <p>This case was here before on appeal from an order sustaining a general demurrer to the complaint. Such order was reversed. 68 Wis. 344. It is erroneously stated in the commencement of the report of the case that the circuit court overruled the demurrer. A full statement of the allegations of the complaint will there be found.</p> <p>The defendant has since answered, practically denying each of the material allegations of the complaint, and averring many facts in support of such denials.</p> <p>The special verdict is very long, but it is thought best to insert it here entire as the readiest means of conveying a correct idea of the points to be considered on these appeals. The corrections made by the court will be noted in connection with the respective findings of the jury which were thus corrected. Such findings with the corrections are as follows:</p> <p>“ 1. Did the plaintiffs in the fall of 1885 make known to the defendant, Hiles, the existence and location of a stone quarry then undeveloped, situated on the N. E. of section 18, town 8, North, of range 20, East, in the town of Menom-onie, in the county of Waukesha, in this state? A. (By direction of the court.) They did.</p> <p>“ 2. Did the defendant, Hiles, know of the location of such quarry before the same was made known to him by the plaintiffs? A. (By direction of the court.) No.</p> <p>“3. Did the owners of said land then know how valuable the stone was that was situated upon said land? A. No.</p> <p>“4. Did the defendant then, or at any subsequent time, agree to purchase said land and quarry and to take the title thereto in his own name, and to advance such moneys as might be required to pa}7 for the same, not exceeding 012,000, and such moneys as might be thereafter required to open and develop the said quarry, and give the plaintiffs one half of the net profits of working the same, in return for the services of the plaintiffs in revealing to the defendant the existence and location of the quarry and in negotiating the purchase of the same, and bestowing their several services to the enterprise of working and developing the quarry? A. Yes.</p> <p>“5. TIow long was such contract to continue? A. As long as both parties agree. (Corrected by court on motion of plaintiffs, by striking out the answer of the jury, and substituting therefor, ‘ as long as said quarry could be profitably worked.’)</p> <p>“6. Did the plaintiffs, or either of them, take any part in person or by their agents in negotiating for the purchase of the land and quarry in the name of the defendant? A. Yes.</p> <p>“ 7. Did Hiles subsequently accept a deed from the owners of said land, and pay $12,000 as the purchase price thereof? A. (Answered b}*- direction of the court.) Yes.</p> <p>“ 8. Was such a purchase made in pursuance of the agreement between, the plaintiffs and defendant as charged in the complaint? A. Yes.</p> <p>“ 9. State whether after the land was conveyed in the fall of 1885, a foreman was employed and tools purchased to open a quarry? A. Yes.</p> <p>“ 10. Did the plaintiffs assist in purchasing and paying for such tools? A. Yes.</p> <p>“ 11. Did either of the plaintiffs go out to the quarry at or about the time the same was opened ? A. Yes.</p> <p>“ 12. If you answer the fourth interrogatory in the affirmative, did the defendant, after making said contract, refuse to carry the same into effect or to allow the plaintiffs to bestow their services and labor in opening and working the quarry or participating in the profits thereof? A. Yes.</p> <p>“ 13. Did the plaintiffs signify to the defendant their willingness and desire to bestow such services to the working of the quarry and to join in the benefits thereof? A. Yes.</p> <p>“ 14. Did they so signify such willingness to the defendant more than once, and if so how often ? A. Two times.</p> <p>“ 15. And did the defendant refuse to accept such services at the time the same were so offered? A. Yes.</p> <p>“ 16. Did the defendant thereafter enter into the possession of the quarry to the exclusion of the plaintiffs ? A. Yes.</p> <p>“ 17. And did he thereafter continue in the possession, and working of the same by himself and his agents and lessees, and if so how long thereafter did he continue in the possession? A. (By direction of court.) ITe sold an undivided one-half of the quarry December 16, 1885, and retained the other half, which has ever since been worked either by the defendant or by others working under some arrangement with him and paying him for the privilege.</p> <p>“18. Is the stone quarry on said land of great value? A. It is valuable.</p> <p>“ 19. Is the stone in said quarry of good size and quality ? A. Yes.</p> <p>“20. Gould profit be derived from working the same if economically operated? A. Yes.</p> <p>“ 21. How many cords of stone are there in the quarry in question? A. Cannot tell. (Corrected as aforesaid by striking out answer of jury and inserting ‘ between 150,000 and 1,000,000 cords.’)</p> <p>“ 22. How much is it worth per cord to quarry the stone and put it on the cars at the quarry? A. $1.75 on all stone on an average.</p> <p>“ 23. How much will it cost per cord to ship said stone from said quarry to the city of Milwaukee? A. $420 per cord.</p> <p>“ 24 How much will it cost per cord when shipped to Milwaukee to deliver it for building purposes within the city? A. $2.00 per cord.</p> <p>“ 25. If you find the contract and breach as charged in the complaint, have the plaintiffs been damaged by reason of the defendant’s refusing to carry into effect the contract securing them one half of the net profits of working said quarry ? A. Yes.</p> <p>“ 26. How much per cord would be the net profits of quarrying and'marketing the several kinds of stone in said quarry? A. $400 on an average.</p> <p>“ 27. At the time the defendant first notified the plaintiffs of his refusal to permit them to participate in the working of said quarry, did he then offer to sell to the plaintiffs one half or the whole of his interest in the land and quarry for -what it cost him, and if so was such offer in writing? A. No, not in writing.</p> <p>“ 28. Did the plaintiffs agree to purchase the same at that or any other price? A. No.</p> <p>“ 29. Did the plaintiffs or either of them, and if so which one, take any steps or do any acts towards making such purchase ? A. Hoyt.</p> <p>“30. If either plaintiffs did such acts, state which one of the plaintiffs it was and what he did? A. Iloxjt tried to raise money.</p> <p>“ 31. Did the plaintiffs, or either of them, agree with the defendant-to surrender the cause of action set forth in the complaint in this suit by any act or acts which they or either of them did towards raising the money to purchase said quari’y and land, or otherwise? A. (By direction of the court.) They did not, nor did either of them.</p> <p>“32. Did the plaintiff Hoyt, in the spring of 1886, purchase an interest in a stone quarry near the one in question, and continue in said quarry for about the period of six months? A. (By consent of counsel.) He did.</p> <p>“33. Did the plaintiffs, or either of them, notify the defendant that they could not make such purchase? A. Yes.</p> <p>“34. Did the plaintiffs, at the time the proposition of sale was made by the defendant, notify the defendant that they had no moneys with which to purchase the same? A. Yes.</p> <p>“ 35. Did the defendant, Hiles, ever pay any money to the plaintiffs in satisfaction of the claims set forth in the complaint? A. Uo.</p> <p>“36. Was not the $1,000 paid to each of the plaintiffs by the Hadfield Bros., paid exclusively for acquiring the interest which the plaintiffs owned in the M. M. E. & W. R’y Co., and services to be rendered in procuring local aid for said company? A. Yes.</p> <p>“ 37. Was not such payment upon the contract introduced in evidence between the plaintiffs and Ketchum of the one part and A. H. and Gf. A. Hadfield of the other part? A. Yes.</p> <p>“ 38. Was the defendant, Hiles, a party to that contract?</p> <p>A. Yes. (Corrected as aforesaid by striking out answer and inserting ‘No.’)</p> <p>“ 39. Did the defendant procure A. IT. and G. A. Hadfield to purchase the interest of the plaintiffs in the railroad charter and pay them one thousand dollars each therefor in full satisfaction of any claim the plaintiffs or either of them had against the defendant in the purchasing and working of the quarry? A. (By direction of the court.) No.</p> <p>“ 40. Could this stone quarry have been worked at a profit at the time it was purchased, without a railroad being built to it? A. No.</p> <p>“41. Has this quarry been worked since its purchase? A. Yes.</p> <p>“42. Has the quarry been worked since it was opened up at a profit? A. Yes.</p> <p>“43. Could this quarry have been worked by the plaintiffs and defendant jointly at a profit? A. Yes.</p> <p>“44. Is there an established mai’ket for stone in Milwaukee, sufficient to consume all the stone that might be quairied and brought to Milwaukee from this quarry, taking into consideration the other stone quarries in competition in the stone business? A. No.</p> <p>“45. Is there any market in Milwaukee in which rubble stone can be sold and delivered at all times? A. No.</p> <p>“46. Was the existence of this stone quarry a matter of notoriety? A. Yes.</p> <p>“ 47. Do you find for the plaintiffs, and if you find for the plaintiffs at what sum do you assess their damages? A. $1,000. (Corrected as aforesaid by striking out such assessment of damages.)</p> <p>“ 48. If you answer the question No. 4 ‘ yes,’ when and where was the agreement consummated ? A. In the city of Milwaukee.</p> <p>“ 49. If you answer the 4th question ‘ yes,’ was not the agreement of the defendant to open and develop said quarry and give the plaintiffs one half of the net profits of working the same, made conditional upon the defendant’s investigating the quarry and seeing what there was in it? A. Tes.</p> <p>“ 50. Did the defendant purchase said land at its fair value for farming purposes? A. Yes.</p> <p>“51. If you answer question No. 9 ‘ yes,’ was the object of opening said quarry simply for 'the purpose of seeing what kind of stone there was in it, and to ascertain whether or not the working of said quarry could be profitably conducted by the parties to this action? A. Yes.</p> <p>“ 52. Could the defendant investigate the quarry and see what there was in it under the circumstances, so as to enable him to determine whether he would-work the quarry in pursuance to the proposition of the plaintiffs, without first purchasing the farm upon which the quarry was situated? A. Yes. ‘</p> <p>“ 53. Did the defendant refuse to work the quarry in pursuance to the proposition of the plaintiffs until after he had had the quarry opened up and investigated? A. Yes.”</p> <p>contended, inter alia, that a new trial may be granted in order to determine a particular point or correct a particular error, without opening the whole case. Thwaites v. Sainsbury, 7 Bing. 437; Hutchinson v. Piper, 4 Taunt. 555; Cheyney’s Case, 10 Coke, 118; Burton v. Robinson, 1 Reble, 882; Queen v. Millis, 10 Clark & F. 538; O’Connell v. Queen, 11 id. 365-388; Stroud v. Stroud, 7 Man. & G. 417; Price v. Severn, 7 Bing. 402; Wood v. Gvnston, Style, 466; Pleydell v. Dorchester, 7 T. R. 529; Bond v. Sparks, 12 Mod. 275; Price v. Harris] 10 Bing. 331; Green v. Elgie, 5 Q. B. 107; Cross Keys B. Co. v. Raw-lings, 3 Bing. N. C. 71; Winn v. Columbian Ins. Co. 12 Pick. 279; Robbins v. Townsend, 20 id. 345; Sprague v. Bailey, 19 id. 436; Boyd v. Brotan, 17 id. 453; Amherst Bank v. Root, 2 Met. 522-542; Seccomb v. Provincial Ins. Oo. 4 Allen, 152; Kent v. Whitney, 9 id. 62; Johnson v. White, 98 Mass. 330; Toberts v. Rockbottom Go. 7 Met. 46; Macy v. De Wolf, 3 Wood & M. 215; Ilariston v. Sale, 6 Smedes & M. 634; Roberts v. Hefner, 19 Tex. 129; Laney v. Bradford, 4 Eiob. 1; US. v. Bird, 2 Brev. 85; Key v. Allen, 3 Mnrph. 523; Woodward v. Horst, 10 Iowa, 120; Dawson v. Wisner, 11 id. 6-8; Walker v. Blassingame, 17 Ala. 810; Edwards v. Lewis, 18 Ala. 494; Lisbon v. Lyman, 49 N. IT. 553, and cases cited; Wood v. Wood, 52 id. 429; Janvrin v. Fogg, 49 id. 340 ; Finch v. Brown, 13 Wend. 601; Fitzhugh v. TPY-man, 9 N. T. 565, 570.</p> <p>Upon the verdict returned, and which is based upon un-contradicted. evidence, the plaintiffs were entitled to judgment for the amount claimed in their amended complaint ($300,000) without any intervention of court or jury to further assess the damages. Newton v. Allis, 16 Wis. 197; Krause v. Gutting, 32 id. 687; Elclred v. Oconto Go. 33 id. 133; Everit v. Walworth Go. Bank, 13 id. 419; Dengate v. Stirmell, 72 id. 168; Foster v. Jackson, Hobart, 54; True-body v. Jacobson, 2 Oal. 269; Litchfield v. Londonderry, 39 N. II. 247; Wells v. Oox, 1 Daly, 515; I^orter v. R-ummery, 10 Mass, 64. When the jury finds facts proved on which the amount of the judgment may be calculated, it is sufficient. Secrest’s'Ex’rsv. Jones, SO Tex. 596; Gibson v. Lewis, 27 Mo. 532; Skillen v. Jones, 44 Ind. 136; Berg v. G., M. de St. P. R. Go. 50 Wis. 424-5; Schweitzer v. Connor, 57 id. 177; Williams v. Porter, 41 id. 422, 429; McNarra v. 0. <& N. W. R. Go. id. 69, 74; Hutchinson v. O. dé N. W. R. Oo. id. 541, 553; Schultz v. G., M. d> St. P. R. Go. 48 id. 875, 379; Fick v. Mulhollancl, id. 418,417; Ward v. Busaclc, 46 id. 407, 413; Ault v. W. da W. Mfg. Go. 54 id. 300; Pool v. G., M. dé St. P. R. Go. 56 id. 227; Gammon v. Abrams, 53 id. 323, 326; Weisel v. Spence, 59 id. 301, 309; Munk-■witz v. Uhlig, 64 id. 380, 387-9.</p> <p>to the point that the court cannot order a new trial as to only a part of the' issues, cited Hodges v. Easton, 106 U. S. 408; Dahl v. M. G. B. Go. 65 Wis. 371; Annas v. M. <& U. B. Go. 67 id. 46.</p>

<p> (1J Fraudulent representations: Corporate stoch: Pleading. (S, SJ Arrest and bail: Vacating order. </p> <p>1. In an action to recover the amount paid for worthless mining stocks, on the ground that such payment had been induced by false and fraudulent representations as to the value of sai'd stocks, the productiveness of the mines, and that the corporations issuing the stocks were legally organized and duly authorized to issue the same, it was alleged in the complaint and in an affidavit for defendants’ arrest that they represented that the stocks had been issued in consideration of money, labor, and property estimated at its true value, equal to seventy-five per cent, of the par value of such stocks. Held, that this allegation may be construed as hav- ' ing been made merely to show that the defendants claimed that the stocks were of great value, and not to show that they represented that the stock was legally issued.</p> <p>2. When the facts which constitute the cause of action stated in the complaint ai'e the grounds stated in an affidavit for the defendant’s arrest, the order of arrest based thereon will not be set aside on motion because such facts are controverted by the proofs of the defendant presented on such motion.</p> <p>3. The fact that the plaintiff cannot recover as to a part of his claim may he ground for reducing the amount of the defendant’s bail on arrest, but is not ground for setting aside the whole order of arrest.</p>

<p>Examination to ascertain whether offense has been committed, and by whom: Jtvrisdiction: Contempt: Writ of prohibition.</p> <p>1. Under sec. 4776, R. S., the magistrate to whom complaint is made that a criminal offense has been committed, may cause witnesses other than the complainant to be subpoenaed and juay examine them on oath to ascertain whether any such offense has been committed and, if so, by whom; and a witness so subpoenaed who shall refuse to be sworn or to testify may bo punished as for contempt.</p> <p>2. The extent to which such magistrate will proceed in such examination is a matter within his discretion. Sec. 4744, R. S., does not apply thereto.</p> <p>3. In conducting such examination the magistrate exercises judicial powers.</p>

<p> Mines and mining: License construed: Measurement of distance: Findings: Evidence. </p> <p>1. It having been found that the right of licensees to work a certain mineral range was limited, by an agreement, to a point 300 yards west of a certain fence, and the starting point for measurement being fixed as the intersection of the range and fence, it was properly held that said distance should be measured along the range, although the general course thereof was southwesterly and not due west; and judgment was properly rendered accordingly, without any additional finding to that effect.</p> <p>2. The evidence in this case is held to show that the licensees had worked the range to the limit so fixed.</p>

<p>Mortgages: Foreclosure: Proof of filing notice of lis pendens: Vacating judgment: Presumptions.</p> <p>1. A judgment of foreclosure of a mortgage, entered without proof of the due filing of the notice of lis pendens, is irregular but not void, and a motion to vacate it on that ground must be made at the same term.</p> <p>2. The record being silent, the presumption is that proof of such fifing was made before the judgment was entered; and the affidavit of a defendant, .against whom the judgment was rendered by default, that he believes no such proof was made, is insufficient to rebut such presumption.</p> <p>3. Although no proof of such fifing was made before judgment, proof that the notice was in fact duly filed is a perfect answer to a motion to vacate the judgment on that ground, no merits being shown.</p>

<p> Justices’ courts: Garnishment: Appeal. </p> <p>An order made by a justice of the peace, under sec. 3735, R. S., requiring a garnishee to pay money into court, is not appealable under sec. 3753, R. S., or ch. 34, Laws of 1883. Eilers v. Wood, 64 Wis. 433, limited.</p>

<p> (1-4) False imprisonment: Provocation: Justification: Mitigation of damages: Evidence. (5) Exclusion of juror: Discretion. (6) Instructions to jury: Modification. </p> <p>1. In an action for false imprisonment, controversies between the parties more than two years previous thereto cannot be shown as a defense or in mitigation of damages, and allegations in respect thereto may properly be stricken from the answer.</p> <p>2. In such an action, it appearing that a few days before the alleged imprisonment the plaintiff had written a letter to one of the defendants charging him with a crime, the court properly refused to allow the defendants to prove the falsity of such charge, because its falsity was presumed, and because the admission of such evidence would allow the plaintiff to prove, if he could, the truth of the charge, and the real issue would thus be overshadowed by this collateral and remote one.</p> <p>3. The jury were properly instructed that such letter was no justification for any unlawful acts which the defendants may have committed.</p> <p>4. Such letter might be considered by the jury in mitigation of puni-tory damages, but the compensatory damages could not be mitigated or lessened thereby.</p> <p>5. The exercise of the discretion of the tidal court in excluding a juror on the ground that he does not stand indifferent in the cause, will not be disturbed except in case of its abuse.</p> <p>6. The modification of an instruction to the jury must be deemed a refusal to give it as requested; and when the modified instruction given includes all of the instruction requested and states the law correctly, such modification is no ground for a reversal of the judgment.</p>

<p>APPEAL from the Circuit Court for Monroe County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>The facts in the record are to the effect that October 24, 1887, the plaintiff was arrested on a warrant issued by the defendant as a justice of the^peace, upon a complaint made by one Atcherson, charging him with the criminal offense of stealing a watch worth $35; that on the same day he was brought before the justice by the officer having him in custody; that the hearing was thereupon continued until October 26,1887, at ten o’clock a. m. ; that the plaintiff then gave bail as required for such appearance; that on the day and hour last named the plaintiff appeared and filed with the justice an affidavit for the removal of the cause, which affidavit was to the effect that he, the plaintiff, was the person so charged for examination, and “ that, from prejudice or other cause, he believes that the said justice will not decide impartially in the matter,” but that said application for removal was thereupon denied by the defendant, as such justice; that the plaintiff thereupon, having been granted the privilege of amending said affidavit, refused to do so; that upon hearing the evidence in said matter the justice was of the opinion and did adjudge that there was probable cause to believe that the plaintiff was guilty of the crime charged, whereupon the justice adjudged and determined that the plaintiff give bail in the sum of $200 for his appearance at the next term of the circuit cou'rt; that the plaintiff thereupon refused to give such bail, and was com-mifcted to the county jail in default thereof; that afterwards the plaintiff was taken before a court commissioner upon habeas corpus, and discharged by him; that subsequently the plaintiff brought this action against the defendant for false imprisonment.</p> <p>The defense relied upon was to the effect that the said .affidavit for removal was insufficient to oust the justice of jurisdiction, and that even if it was sufficient, still, in denying such application for removal, he acted judicially and was not, therefore, liable to the plaintiff in this action.</p> <p>At the close of the trial the court directed a verdict in favor of the plaintiff for such amount of damages as they should find he was entitled to, subject to the opinion of the court on the question of law involved in the case. The jury thereupon returned a verdict accordingly, assessing the plaintiff’s damages at the sum of $500. Subsequently the court denied the plaintiff’s motion for judgment, and ordered that the defendant have judgment, notwithstanding the verdict, dismissing the complaint, and for costs, and directed judgment to be entered accordingly.- From the judgment so entered the plaintiff appeals.</p> <p>To the point that a justice of the peace who proceeds to .try a cause after a sufficient affidavit of prejudice has been filed is not protected by reason of having acted judicially, they cited Grace v. Mitchell, 31 "Wis. 533; Burns v. Doyle, 28 id. 460; Jenkins v. Morning, 38 id. 19T; Hellriegel v. Truman, 60 id. 253; Lybrand v. Oar son, 2 Fin. 33; Selby v. Platts, 3 id. 170; Baldwin v. Hamilton, 3 Wis. 747; McNco-mara v. Specs, 25 id. 539; Wearne v. Smith, ^ 32 id. 412; Hepler v. State, 43 id. 479; Gelsenleuchter v. Niemeyer, 64 id. 322; La Roe v. Roeser, 8 Mich. 537; Guenther v. White-acre, 24 id. 504; Sheldon v. Hill, 33 id. 171; Oase v. Shepherd, 2 Johns. Cas. 27; Percival v. Jones, id. 49; Rutherford v. Holmes, 66 N. T. 368; Pivenburgh v. Henness, 4 Fans. 208; Tracy v. Williams, 4 Conn. 107; Gillett v. Thiebolcl, 9 Kan. 427; Kendall v. Powers., 4 Met. 553; Truesdell v. Combs, 33 Ohio St. 186; Clarke v. May, 2 Gray, 412; Knowles v. Davis, 2 Allen, 61; Pratt v. Hill, 16 Barb. 303 ; Kvertson v. Sutton, 5 Wend. 281; Tewis v. Palmer, 6 id. 367; Blythe v. Tompkins, 2 Abb. Pr. 469; Vanderpool v. State, 34 Ark. 174; Dietrichs v. Schaw, 43 Ind. 175; Kisher v. Deans, 107 Mass. 118; Wilcox v. Williamson, 61 Miss. 310; Pooler v. Peed, 75 Me. 488; Pevill v. Pettit, 3 Met. (Ky.), 314; Vaughn v. Congdon, 56 Yt. Ill; Spencer v. Perry, 17 Me. 413; Hill v. Bateman, 2 Strange, 710; Crepps v. Durden, 2 Cowp. 640; Wickes v. ■Clutterbuck, 2 Bing. 483; Cropper v. Horton, 8 Dowl. & Ryl. 166; Davis v. Capper, 10 Barn. & Ores. 28; Weaver v. Price, 3 Barn. & Ad. 409; Van Slylce v. Trempea-leau Co. K. M. K. Ins. Co. 39 Wis. 390; Klournoy v. Jef-fersonville, 17 Ind. 174; Mississippi v. Johnson, 4 Wall. 498; Place v. Taylor, 22 Ohio St. 317; Briggs v. Wardwell, 10' Mass. 356; Bigelow v. Stearns, 19 Johns. 39; Suydam v. Keys, 13 id: 446; Cox v. Croshong, 1 Pin. 307; Smelser v. Lockhart, 97 Ind. 320; Elclerkin v. Wiswell, 61 Wis. 498; Danforth v. Classen, 21 Ill. App. 572; Sasnett v. Weathers, 21 Ala. 673; Wingate v. Waite, 6 Mees. & W. 746; Estop-inal v. Peyroux, 37 La. Ann. 478; Piper v. Pearson, id. 120; Crumon v. Raymond, 1 Conn. 40; Dyer v. Smith, 12 id. 384; Adkins v. Brewer, 3 Cow. 206; Reynolds v. Orvis, 7 id. 269; Touhey v. King, 9 Lea, 422; Poulk v. Slocum, 3-Blackf. 421; 1 Chitty on PI. (16th ed.), 294; Cowdry, Just. Treat, sec. 164, and notes; Bryant’s Wis. Just. sec. 1200; Bigelow on Torts, secs. 125, 126; 7 Am. & Eng. Ency. of Law, tit. False ImpeisoNmeht ; Cooley on Torts, 491; Houlden v. Smith, 14 Q. B. 841; Hartel v. Kite, 70 Wis. 399; State v. Oust, id. 634; Kleinsteuber v. Schumacher, 35 id. 614; Hull v. Mallory, 56 id. 355; Smith v. Bahr, 62 id. 246.</p> <p>contended, inter alia, that a justice of tbe peace, by his judicial character, is afforded the same protection from an action for damages when he has jurisdiction of the subject matter and has acquired jurisdiction of the person, as is afforded to a court of genera] jurisdiction, and that an erroneous judgment or decision upon a question which he is called upon to decide while so acting will not be considered as depriving him of jurisdiction, when attacked in a collateral action. Horton v. Auchmoody, 7 Wend. 200; Stewart v. Hawley, 21 id. 552; Or ove v. Van Huyn, 44 N. J. Law, 654; Rasmussen v. McCabe, 43 Wis. 471; Heeler v. Woodward, 3 Pin. 306; Lange v. Benedict, 12> N. Y. 12; Halloclc v. Doming, 69 id. 238; Chicicering v. Robinson, 3 Cush. 543; Hendriclc v. Whittemore, 105 Mass. 23; Jordan v. Hanson, 49 N. H. 199; Chirle v. Hold ridge, 58 Barb. 61; Bradley v. Fisher, 13 Wall. 335; Little v. Moore, 4 N. J. Law, 74; Brittain v. Hinnaird, 1 Brod. & Bing. 432; Fischer v. Langbein, 103 N. Y. 84, 94. The rule is sustained in the following cases, though the facts are not considered as bringing them as closely in point: Pratt v. Gardner, 2 Cush. 63, 70; Bittler v. Potter, 17 Johns. 145; Porter v. Purdy, 29 N. Y. 106, 110; Roderigas v. Fast River S. List. 63 id. 464; Wall v. Trumbull, 16 Mich. 228; Gregory v. Brown, 4 Bibb, 28; McCall v. Cohen, 16 S. C. 445; Reid v. Hood, 2 Nott & McCord, 168; Busteed v. Parsons, 54 Ala. 393.</p>

<p>REPORTED from the Municipal Court of Boole County.</p> <p>The following statement of the case was prepared Mr. Justice Tayloe as a part of the opinion:</p> <p>The district attorney of Rock county presented an information in the municipal court of Rock county against the defendant for acting as an agent of the “ Rational Benevolent Association of Minneapolis, Minnesota,” without first procuring from the commissioner of insurance a certificate of authority, as provided by- law. The following is a copy of the information: “State of Wisconsin against E. W. Whitmore. . I, B. M. Malone, district attorney for Rock county, Wis., hereby inform the court that on the 24th day of April, 1889, at the village of Evansville in said county and state, E. W. Whitmore did act and aid as agent of the Rational Benevolent Association of Minneapolis, in transacting the business of and with such corporation, in placing risks and effecting insurance, without first procuring from the commissioner of insurance a certificate of authority as provided by law; the said Rational Benevolent Association of Minneapolis not being a town insurance corporation of this state, and not having a license from the commissioner of insurance authorizing it to issue policies of insurance in this state, and not being named in the list of insurance companies named in ch. 534, Laws of 1887, as not being life insurance companies in the sense and meaning of the general law of the state relating to life insurance companies,— against the peace and dignity of the state of Wisconsin. B. M. Malone, District attorney for Book county, Wis. Dated May 9, 1889.”</p> <p>The defendant appeared in court, and pleaded not guilty to the information. The defendant waived a trial by jury, and submitted to a trial by the court. ■</p> <p>The case was tried upon a stipulation in writing of the facts, as follows: “ It is hereby stipulated, by and between B. M. Malone, district attorney for Rock county, Wis., and Geo. F. Getty, on behalf of the defendant, the respective attorneys of the above-named parties, that & W. 'Whitmore, on April 24th, 1889, was an agent of the National Benevolent Association of Minneapolis, Minnesota, which is an Odd Fellows’ association, duly incorporated under the laws of Minnesota for the purpose of fraternal benevolent insurance upon the co-operative or assessment plan among the members of the Independent Order of Odd Bellows, and that on the 24th day of April, 1889, said K W. Whitmore was, as such agent, aiding and acting in the business of said association in the county of Rock and state of Wisconsin, by procuring an application for insurance in said association from Bro. Wilbur T. IToxie, a member of the Independent Order of Odd Fellows. That on August 3, 1887, said association, in response to a letter to the insurance department of the state of Wisconsin, as to whether it could do business in said state without complying with the general insurance laws, received from said insurance department the following letter: ‘State of Wisconsin, Department of Insurance. Madison,'Wis., Aug. 3d, 1887. Geo. F. Getty, Minneapolis, Minn. — Dear Sir: Your companj'-, the Odd Fellows National Benevolent Association, is exempt from paying taxes usual to life insurance companies by sec. 1, ch. 204, General Laws of 1879, amended by ch. 246, Laws of 1881, and ch. 249, Laws of 1882. Yours truly, Arthub CheeK, Deputy Com. of Insurance.’ That prior to said letter it had been the practice of said department, and the construction of the laws of this state by it, that all Odd Fellows and Masonic insurance associations were exempt from the operation of the general insurance laws; and that said association, after the receipt of said letter, secured in the state of Wisconsin more than one thousand applications for insurance in such association, and issued certificates of membership to the applicants. That such persons, as well as all the members of said association, are Odd Fellows. That in March, 1888, said association was notified, through said insurance department, not to do business in said state of Wisconsin. That said association is not named by corporate name in ch. 534, Laws of 1887. That said agent E. W. Whitmore had no certificate of authority from said insurance department, and that said association has no special license from the insurance department, and that ‘ Odd Fellows ’ and ‘ Independent Order of Odd Fellows ’ refer to the same secret organization. B. M. Malos®, Dist. Attorney for Rock county. Geo. F. Getty, Attorney for Defendant.”</p> <p>On the statement of facts the defendant moved the court to dismiss the action for the reason that the facts do not warrant a conviction. The motion was denied, and the defendant excepted. Thereupon the municipal judge, having doubts as to the defendant’s liability to the penalty provided in sec. 4, ch. 240, Laws of 1880, reported to this court for its decision the following question: “Upon the facts found is the defendant liable to a penalty as provided in section 4 of chapter 240 of the General Laws of Wisconsin passed in 1880? The aforesaid question being, in my mind, so doubtful as to require the decision of the supreme court, and the defendant requesting it, I, the undersigned judge of the municipal court for Rock county, hereby respectfully report the case to the supreme court, and request their decision upon said question. II. A. Patteiíson, Municipal Judge.”</p> <p>cited State v. Mut. P. Asso. 26 Ohio St. 19; Comm. v. Nat. Mat. Aid Asso. 94 Pa. St. 481; Commercial L. Asso. v. People, 90 Ill. 166; State v. Bankers* (& M. M. B. Asso. 23 Kan. 499; Supreme Council O. C. F. v. Fairman, 62 How. Pr. 386; Sherman v. Comm. 82 Ky. 102; Flsey v. Odd Fellows'1 PL. B. Asso. 142 Mass. 224; Barbara v. Occidental Grove No. 16, 4 Mo. App. 429; State ex rel. Auditor v. Iowa M. A. Asso. 59 Iowa, 125; State ex rel. Bradford v. Nat. Asso. F. & M. M. Aid Asso. 35 Kan. 51.</p>

<p>APPEAL from the Circuit Court for Milwaultee Countju</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>May 6,1882, the plaintiff obtained a judgment for divorce against the defendant, upon a finding that it had been agreed in open court that the plaintiff should accept and the defendant pay the sum of $2,000 in full of all alimony, and for a full share of all her claim in and to the defendant’s property; and it was-adjudged therein that, upon the release by the plaintiff of all her dower, such $2,000 should be in full thereof. Subsequently it was held in this case that, as the judgment did not expressly declare such $2,000 to be the plaintiff’s share of the defendant’s estate upon division and partition thereof, the same should be. construed as alimony, and hence that the judgment might subsequently be modified in such a manner as might be just. 68 Wis. 303.</p> <p>Thereupon, and upon a petition to modify such judgment, it was found by the trial court, in effect, that at the time of the commencement and prosecution of the action the plaintiff did not know either the amount of propertjr then owned by the defendant or the value thereof; that in the negotiations with the plaintiff respecting such alimony the defendant’s agent represented to the plaintiff that the defendant was in a worse financial condition than he actually was at the time; that the plaintiff relied on such representations; that no intentional misrepresentation was made by said agent; that since the rendition of said judgment the circumstances of the parties have changed; that the plaintiff is in needy circumstances 'financially; that the defendant has more property and a larger income than he had at that time; that he now owns unincumbered real estate of the value of at least $200,000, and from which he derives an annual gross income of about $10,000.</p> <p>And as conclusions of law the court found therein that the plaintiff was entitled to have said judgment modified by a further judgment in her favor and against the defendant for the sum of $30,000, and for the further sum of $1,000 as attorneys’ fees and disbursements in these subsequent proceedings — making in all the sum of $31,000 as her full and final share and allowance in the final division and distribution of the estate and property, real and personal, of the defendant; that, except as therein directed to be modified, said original judgment stand; and a final judgment was directed thereon accordingly.</p> <p>From the judgment entered thereon, as directed, and the whole thereof, the defendant appeals.</p> <p>They contended, inter alia, that the court erred in refusing to decide that it was agreed between the parties that defendant should pay to plaintiff, and she should receive, the sum of $2,000 in full for her dower interest in the defendant’s lands, and as a final distribution of all the defendant’s property, both real and personal, between them. Such agreement was binding. 1 Bish. Marr. Worn. secs. 719, 724; 2 id. sec. 369; 2 Bish. Mar. & Div. secs. 235, 237a, 239; Randall v. Randall, 37 Mich. 563; Scarborough v. Wathlns, 9 B. Mon. 545; Fox v. Davis, 113 Mass. 255; Bettle v. Wilson, 14 Ohio, 268; 2 Story’s Eq. Jur. (12th ed.), sec. 1868.</p>

<p> Insurance against fire: Transfer of property: By-law construed: Forfeiture: Change of occupancy: Waiver. </p> <p>1. A by-law of a town insurance company, providing that “ policies of insurance may be assigned with the consent of the president and secretary, the parties paying fifty cents recording fees, at the same time giving his undertaking to the company, and the company will not hold itself responsible for loss on property so transferred until such assignment so made and undertaking given,” has no application to a transfer of the insured property which leaves an insurable interest in the original policy-holder.</p> <p>2. A forfeiture by reason of a change in the occupancy of the insured property is waived where the officers of the insurance company knew of such change before the loss, and, after the loss, when the claim was presented, made no objection on that ground, but directed the assured to make his proofs of loss, which he did at considerable expense.</p>

<p> Taxation: Illegal assessment. </p> <p>Intentional violation of the law, by unfair and unequal valuations and arbitrary omissions of taxable property, is ground for setting aside an assessment and a sale for nonpayment of taxes thereunder, at the suit of one who is thereby required to pay more than his share of the taxes.</p>

APPEALS from the Circuit Court for Langlade County. . The following statement of the case was prepared by Mr.-Justice Cassoday: It appears from the record that February 18, 1882, the defendants, under the. firm name of M. Mitchell & Sons, purchased of the plaintiff a turbine water-wheel for't'heir mill, for the sum of $276, and thereupon put the same in their mill, and have used it ever since; that July 13, 1887, the plaintiff commenced this action against the defendants to…

<p>APPEAL from the Circuit Court for Outagamie County.</p> <p>Action to compel specific performance of a contract, made September 1, 1880, by which one,N. M. Edwards agreed to convey to the plaintiff John Chopin a certain lot in the city of Kaukauna on payment by Chopin of $200, $50'of which was paid down. The complaint alleges the assignment of said contract by John Chopin to the plaintiff Catherine Chopin, his wife, and that Edwards had deeded the land to the defendant Otto Runte, who bought knowing that the land was the plaintiff’s homestead.</p> <p>The court found, as facts, (1) that the contract was executed as alleged; (2) that except the $50 then paid no part of the purchase price had been paid; (3) that soon after the execution of the contract John Chopin erected a dwelling-house on the lot, and the plaintiffs have ever since occupied the premises as their homestead, except while the same were rented to one Dobkins as hereinafter stated; and that during that time the plaintiffs intended to, and at the end thereof did, return to said premises as their home; (4) that while said dwelling-house was being erected the said Edwards advanced to John Chopin, at the request of the latter, between September 1, 1880, and October 13, 1881, various sums of money to be used, and which were in fact used, in paying for labor and materials in the construction of said dwelling-house, and which were necessary therefor, which advances, together with the unpaid purchase money under said contract, on October 13, 1881, amounted to $355.25; (5) that said advances were made under an oral agreement between Chopin and Edwards that they should be repaid, as well as the balance of the purchase money, before Chopin should be entitled to a deed; (6) that on October 13, 1881, Chopin was indebted in the sum of $196.65 to various persons for work, labor, and materials in the construction of said dwelling-house, for which indebtedness mechanics’ liens existed on said premises, the enforcement of which was threatened and impending; (7) that at said time Chopin was also indebted to the defendant Otto Runte in the sum of about $335 for merchandise for said Chopin’s family, and to other persons for provisions and supplies in the sum of $19.88.</p> <p>The court further found (8) that on or about said October 13, 1881, the plaintiffs jointly applied to the defendant Otto Rxmte for means to pay Edwards and the other debts owed by Chopin, the said Edwards having refused to make any further advances; that'it was finally agreed between the plaintiffs and Runte that the latter should pay Edwards said sum of $355.25, and said lien claims of $196.65, and said sum of $49.88, and take a deed of the premises and hold the same until all said sums should be repaid to him, and until he should also be paid said sum of $335 due for merchandise as aforesaid; (9) that thereupon Runte, at the joint request of the plaintiffs, paid said sums of $355.25, $196.65, and $49.88, and on the like request and with the procurement of the plaintiffs took a warranty deed of the premises from Edwards, (10) and afterwards, on October 20,-21, 1881, at the requests of both of the plaintiffs, gave to John Chopin a contract to convey the premises to him on payment of $908.53 within three years, also a lease of the property-for three years at $240 per year; (11) that in 1882 Runte, at the request and with the consent of the plaintiffs, leased said premises to one Dobkins, who occupied them for about six months and paid Runte $90 rent therefor; that said rent was applied by Runte, with the consent of said Chopin, on his account for goods purchased for his family from Rimte after October 13, 1881; (12) that subsequent to October 13, 1881, Runte expended on said premises for necessary improvements and repairs $41.85, for taxes $21.27, and for insurance $24; (13) that the following items of advances and indebtedness, as aforesaid, remain wholly unpaid: Amount paid Edwards, $355.25; amount paid for liens, $196.65; amount paid other persons, $49.88; taxes and improvements, $63.12; insurance, $24; amount due Runte for goods, $335; (14) that the land contract from Edwards to John Chopin had been transferred to the plaintiff Catherine Chopin as alleged.</p> <p>As conclusions of law the court found that the deed from Edwards to Rimte was intended as security and is a mortgage of the premises, paramount to any homestead right or interest of the plaintiffs, for the following advances and. indebtedness, with interest: $355.25 paidEdwards; $196.65 paid for liens; $21.21 paid for taxes; $41.85 paid for improvements; $261.83 interest; that the claims of Runte of $335 for merchandise, $49.88 paid to various persons, and $24 paid for insurance, are subordinate to the homestead rights of the plaintiffs, which as to said last-mentioned claims are unaffected by the deed from Edwards to Runte; that the total amount of the mortgage debt, principal and interest, for which said deed is a mortgage, and which is now due, is $876.8*5; and that the defendants are entitled to judgment of foreclosure. .</p> <p>contended, inter alia, that Runte was entitled to hold the legal title as security for the amount as to which his claim was rejected, as well as for that as to which it was sustained. The deed from Edwards to Runte, and his lease and land contract to Chopin, constituted a mortgage. Jones on Mortg. sec. 331; Iloile v. Bailey, 58 Wis. 434; Green v. Pierce, 60 id. 372; Starlcs v. Redfield, 52 id. 349. The signature of Mrs. Chopin was not necessary, even if the premises were a homestead, because, according to her own undisputed testimony, she was the owner of the homestead interest. Godfrey v. Thornton, 46 "Wis. 683-4. She could have compelled her husband, at any time, to make the assignment to her. 1 Perry on Trusts, secs. 126, 127; Roller v. Spilmore, 13 Wis. 26; Pratt v. Ayer, 3 Pin. 236; Kluender v. Fenshe, 53 Wis. 118. At the time of the deed to Runte the plaintiffs had not acquired any interest in the house and lot sufficient to constitute a homestead. There can be no exempt home-. stead in the vendee of a land contract until the purchase money has been substantially paid. Thurston v. Maddochs, 8 Allen, 427; Fairbairn v. Middlemiss, 47 Mich. 372; Farmer v. Simpson, 6 Tex. 303; Buford v. Rosenfield, 37 id. 46; 9 Am. & Eng. Ency. of Law, 439, note 1; Phillips on Mech. Liens, sec. 183a. The wife has no estate in the husband’s homestead, but a mere veto power against his disposal of it. Godfrey v. Thornton, 46 Wis. 677; Petesch v. FLarnbach, 48 id. 451; Smith v. Sober ok, 60 Miss. 491. TIence, she cannot control his payment of the purchase money, and he may surrender the unpaid contract at pleasure. Thurston v. Maddochs, 6 Allen, 427; Farmer v. Simpson, 6 Tex. 303; Buford v. Rosenfield, 37 id. 46. The vendee under a land contract is the owner of the land in equity only in proportion to his payments. Jennisons v. Leonard, 21 Wall. 302; McGabe v. Mazztcchelli, 13 Wis. 478. Whatever homestead right the plaintiffs had was abandoned when the arrangement with Runte was consummated. The husband may abandon the homestead. Godfrey v. Thornton, 46 Wis. 683; Thompson on ITomest. sec. 276. While a subsequent abandonment will not save a mortgage of the homestead without the wife’s signature, one that is concurrent with it and a part of the same transaction will; for, in such case, the premises are not the husband’s homestead at the consummation of the transaction. Brown v. Goon, 36 Ill. 243; Winslow v. Noble, 101 id. 194; Dralte v. Painter, 77 Iowa, 731. The plaintiffs are estopped, or have waived the right, to claim the mortgage void for want of the wife’s signature. A married woman is estopped to deny the validity of a mortgage or deed of the homestead or her interest or estate in it, for noncompliance with statutory requirements, when she has participated in and received and retains the benefits of the transaction. Norton v. Niohols, 35 Mich. 148; God-frey v. Thornton, 46 Wis. 690; Fryer v. Rishell, 84 Pa.' St. 521; Brumbaugh v. Zollinger, 59 Iowa, 384; Winslow v. Noble, 101 Ill. 194; Connolly v. Branstler, 3 Bush, 702; Adam, v. Munzel, 8 Atl. Rep. (Pa.), 606.</p> <p>If Runte cannot hold the legal title for the full amount Avhich it was intended to secure, he can for the amount paid to buy the lot and build the house. As against “laborers’, mechanics’, and purchase-money liens” the premises were not a homestead, and a mortgage to secure them is valid without the wife’s signature. R. S. sec. 2983; Four-nier v. Chisholm, 45 Mich. 417, 418; Tift v. Newsom,, 44 Ga. 600; Niohols v. Overaoher, 16 Kans. 59; Peterson v. Hornblower, 33 Cal. 275; Carr v. Caldwell, 10 id. 385; Silsbe v. Lucas, 36 Ill. 462; Thompson on Homest. secs. 342-4, 372; Allen v. Hawley, 66 Ill. 164; Miller v. Brown, 11 Lea (Tenn.), 155; Farmer v. Simgison, 6 Tex. 303; Phelps v. Porter, 40 Ga.,485; Carey v. Boyle, 53 Wis. 574.</p>

<p> Equity: Injunction: Threatened injury: Water power. </p> <p>A. complaint alleging that the defendants threaten to divert water from the plaintiff’s water power, that they claim the right to do so, and that they will do so unless restrained, presents a case for the exercise of equitable jurisdiction to prevent the threatened injury.</p>

The parties are husband and wife, and this action was brought by the wife to obtain a divorce from her husband. The principal ground assigned therefor is cnuel and inhuman treatment of her by the defendant, although it is charged in the complaint that he is dissipated and squanders his money in saloons. There is no bill of exceptions. The findings of fact by the court, and its ‘conclusions of law'therefrom, are as follows: “ First.

The case is sufficiently stated in the opinion. cited,-in addition to cases referred to in the opinion, Terre Haute & I. B. Go. v. Bucle, 96 Ind. 346; Bohan v. M., I. 8. <& W. B. Co. 68 Wis. 30; Roye v. C. <& N. W. B. Co. 62 id. 666; Redf. on Carriers, sec. 341; 2 Greenl. Evi. sec. 222; Cooley on Torts, 660; Shearra. & Redf. on Neg. see. 280.

The complaint, so far as it need be stated, alleges in substance that the Pox river is a navigable stream; that at a certain point in Outagamie county, where said river flows nearly east, it is divided into several channels by four islands, numbered respectively 1, 2, 3, and 4; that the stream at that point is of large volume, and in a state of nature about one half of the flow thereof passed through the channel between the south bank of the river and island No. 4; that, a…

The plaintiff, A. L. Collins, recovered judgment in the circuit court of Outagamie county against the defendants, Frederick H. and William Smith. on June 23, 1877, for $998.40. A transcript of such judgment was duly filed in the office of the clerk of the circuit court of Shawano county on June 26, 1878. Execution was issued on such judgment to the sheriff of Shawano county, May 14, 1881.

<p> Pleading: Joinder of causes of action: Riparian owners: Diversion of water: Injunction: Parties. </p> <p>1. In an action by riparian owners to restrain the diversion of water from their lands, an allegation that the defendant entered upon the land of one of the plaintiffs and dug up and removed rocks and soil therefrom does not state a cause of action, so as to create an improper joinder, where such allegation is made merely to show the means employed in diverting the water and no damages are claimed on account of such entry.</p> <p>2, In such action other adjoining riparian owners are not, nqc.essary parties. k ... ' „ .</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This is an appeal from an order overruling a demurrer to the complaint for want of jurisdiction.

<p>APPEAL from the Circuit Court for Chippewa County.</p> <p>The facts are sufficiently stated in the opinion. The "appeal is from an order affirming the order dismissing the proceedings.</p> <p>To the point that the fact that the second execution had not been returned did not entitle the defendant to a dismissal of the supplementary proceedings, they cited Sale v. Lawson, 4 Sandf. 718; Farqueharson v. Kimball, 18 How. Pr. 33; S. G. 9 Abb. Pr. 385, note; Owen v. JDupiynac, 9 Abb. Pr. 180; Lilliendahl v. Fellerman, 11 How. Pr. 528; Hanson v. Tripler, 3 Sandf. 733; Storm v. Badger, 8 Paige,-130; Thomas v. McEwen, 11 id. 131; Conway v. Hitchins, 9 Barb. 378; Smith v. Mahony, 3 Daly, 285; Gates v. Young, 17 N. T. Weekly Dig. 551; Riddle & B. Supp. Proc. (3d ed.), 76; 4 Wait’s Pr. 132. The only case to the contrary is McArthur v. Lansburgh, 1 Code R. (N. S.), 211, which has been overruled.</p> <p>They argued, among other things, that since the proceeding here in question is a substitute for the creditors’ bill in equity it should he governed by the same rule of limitation, and when it appears on the face of the order that more than ten years have elapsed since the return of the execution (no opportunity to plead the statute being provided for) the order should be held void and be vacated on motion. Kellogg v. Coller, 47 Wis. 649 ; Fullerton v. Spiring, 3 id. 667; Gorni/ng v. Stebbins, 1 Barb. Oh. 589; R. S. sec. 4221, subd. 4. The judgment creditor cannot avail himself of the remedy given by sec. 3030,' R. S., while he has an unsatisfied execution in the hands of the officer. His only remedy is under sec. 3031. In most of the cases cited by counsel for the appellant the .second execution was issued subsequent to the commencement of the supplementary proceedings. In such a case it may be just to hold that the execution should not supersede the supplementary proceedings. But the judgment creditor should not be allowed to commence such proceedings after the issuance of the execution and before its return, especially where, as here, real estate has been seized thereon. See In re Remington, 7 Wis. 643.</p>

Action to recover the value of a certain stock of goods, alleged to be the property of- the plaintiffs and to have been converted by the defendant to his own use. The defense is that the defendant, as sheriff of Douglas county, seized the goods under and by virtue of certain writs of attachment issued in actions against one Henry Cahn, and that such goods were the property of said Cahn. The cause was tried bj^ the court without a jury.

<p>Deed absolute or mortgage ? JSvidence.</p> <p>Í. To convert a deed absolute into a mortgage, the evidence should be so clear as to leave no substantial doubt that the rea,! intention of the parties was to execute a mortgage.</p> <p>3. In .an action to have a deed declared a mortgage and to redeem therefrom, it was undisputed that the deed was executed and recorded in 1858; that thereafter, until 1887, the plaintiff never made any claim to the land or to any interest therein, and never paid any taxes thereon, or in any way exercised any ownership thereof; that on the settlement of other loans made to him by the defendant no claim was made by either.party that the matter of this deed was an unsettled transaction; that the defendant paid all the taxes, and that the plaintiff knew he was paying such taxes as early as 1869: that in 1870 the defendant commenced selling . and conveying portions of the land, and continued to do so until shortly before the commencement of the action in 18847; and that the defendant never claimed that the plaintiff owed him the amount paid to plaintiff when the deed was given. The evidence, showing the above facts and being in other respects contradictory and unsatisfactory, is held to sustain the findings of the trial court to the effect that the deed was not given as security for a debt.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: It appears from the record that July 5,1888, the defendant Byron Z. Sickles made a complaint before IT.

<p>APPEAL from the Circuit Court for Pock County.</p> <p>The facts are sufficiently stated in the opinion. The American Baptist Publication Society appeals from the judgment of the circuit court affirming the decision of the county court.</p> <p>They contended, inter alia, that a devise to the American Baptist Publication Society, to aid in the support of a Baptist colporteur and missionary within the state of Wisconsin, is a good charitable devise. Jackson v. Phillips, 14 Allen, 556; Perry on Trusts, sec. 697; Attfy Ben. v. Stepney, 10 Yes. 22; Winslow v. Gummings, 3 Cush. 358; Bliss v. Am.. Bible Soc. 2 Allen, 334; Pickering v. Shotwell, 10 Pa. St. 23. The nature of the gift shows that the application of the fund to charity was the dominant object in the mind of the testator, and that the selection or appointment by the trustees, as far as they might have a voice, was subordinate, or a means to an end. Minot v. Baker, 147 Mass. 348. It might well be that, inasmuch as the testator did not contemplate the execution of the trust until the expiration of the life interest of his widow, and could not specify the trustees by their individual names, he simply made use of the term “ deacons ” as descriptive of the persons who, for the time being, might hold that position or office, and that he did not intend to confine the trusteeship to the body known as the deacons of the church. Inglis v. Sailors’ Snug Harbor, 3 Pet. 99; Russell v. Allen, 107 U. S. 168; Clement v. Hyde, 50 Yt. 716; Cruse v. Amtell, 50 Ind. 49. The incompetency, inability, death, or non-appointmént of a trustee- will not defeat a trust once properly created. Perry on Trusts, secs. 38, 730, 742, 248, 721; Dodge v. Williams, 46 Wis. 102; R. S. secs. 2098, 2154, 2128; Pom. Eq. J ur. sec. 1026; Bliss v. Am. Bible Soe. 2 Allen, 334; Cox v. Manners, L. R. 6 Eq. 12, 574; Laird v. Bass, 50 Tex. 412; Cruse v. Amtell, 50 Ind. 49; Clement v. Hyde, 50 Yt. 716; Att’y Gen. v. Downing, Wilm. 23; Brook v. Brook, 3 Sm. & Gif. 280; Withers v. Teadon, 1 Rich. Ch. 324; Miller v. Meeteh, 8 Pa. St. 417; Gibbs v. Marsh, 2 Met. 243; Grirnke v. Grimke’s JEx’rs, 1 Dess. Eq. 375; Brown v. Higgs, 5 Yes. 495, 504; Pierson v. Garnet, 2 Bro. 38, 226; Richardson v. Chapman, 7 Bro. P. C. 318; 1 Powell on Devises (Jarman’s note), 294; Minot v. Baker, 147 Mass. 348; Lor-ing v. Marsh, 2 Clif. 469; 2 Story’s Eq. Jur. secs. 1061, 1062; Pickering v. Shotwell, 10 Pa. St. 23; M’Girr v. Aaron, 1 Penn. 49; Suier v. Hilliard, 132 Mass. 412. But the charity here was the substance, and the alleged discretion of the trustees was merely a mode secondary and subordinate to the general object which was the essence of the gift. Baylis v. Att’y Gen. 2 Atkins, 239; Cook v. Ducken-field, id. 562-7; Moggridge v. Thackxoell, 7 Yes. 67; Minot v. Baker, 147 Mass. 348; White v. Ditson, 140 id. 351; Sallonstall v. Sandei's, 11 Allen, 446; Dodge v. Williams, 46 Wis. 99. Conceding that the object of this bequest is charitable, there can be no question that the court, or the trustees appointed by the court, have the power to make it definite and certain. Perry on Trusts, 699, 700, 709; Webster v. Morris, 66 "Wis. 384; Bliss v. Am. Bible Bog. 2 Allen, 334; Dodge v. Williams, 46 "Wis. 70, 98; Saltonstall v. Ban-ders, 11 Allen, 446; Graig v. Seerist, 54 Ind. 419, 426; Bus-sell v. Allen, 107 U. S.-168; Chambers v. Bt. Louis, 29 Mo. 543; Boring v. Marsh, 2 Clif. 493; Ouls. v. Washington Hospital, 95 U. S. 311.</p> <p>They argued, among other things, that the discretion sought to be reposed in' the deacons was a personal trust, and hence the court cannot appoint other trustees. Perry on Trusts, sec. 721; Fontain v. Bavenel, 17 JIow. 369. The testator failed to nominate a competent trustee, because the deacons consisted of an unincorporated body and were incapable of action. Grime’s Fx’rs v. Harmon, 35 Ind. 246; State v. Warren, 28 Md. 338; Holland v. Peale,, 2 Ired. Eq. 255; White v. Hale, 2 Coldw. 77; Heiss v. Murphey, 40 Wis. 276. The bequest must fail because the will is entirely ■silent as to the beneficiaries. To constitute a valid charitable trust the beneficiaries must be certain, either as a •class or as individuals, or capable of being made certain by authority given in the will to the trustee to select and speak for the testator. Heiss v. Murphey, 40 Wis. 292; Q-rimds Fx’rs v. Harmon, 35 Ind. 252; Goddard v. Pom-■eroy, 33 Barb. 546; Bay v. Adams, 3 Mylne & 3L 237; Dashiell v. Att’y Gen. 6 Har. & J. 1; Downing v. Marshall, 23 N. Y. 366; Owens v. Missionary Boo. 14 id. 380; Lepage v. McNamara, 5 Iowa, 124; Bridges v. Pleasants,'94 Am. Dec. 44, and note; Carpenter v. Miller, 100 id. 744; White ®. Fish, 22 Conn. 31.</p>

<p> Towns: Service of process: Town clerk: Limitation of actions. </p> <p>1. In an action against a town the proof of service of the summons and complaint was to the effect that they were served upon the chairman of the town and upon “E. C., the clerk of said town elected at the last annual town meeting, who claims he was not qualified, and upon Ida L., who has the charge of the records of said town and is the acting town clerk of the town, and upon W. D. S., clerk of said town who was elected and who qualified as such clerk, and who is the last clerk of said town who was elected who qualified.” Held, that there was no service upon the ' clerk of the town, as required by sec. 2637, E. S.</p> <p>■2. Where a judgment by default is set aside for insufficiency of service of the summons, whatever was done towards service becomes functus officio and falls with the judgment.</p> <p>3. Where the statute requires service of the summons upon two officials of a town, service upon one only does not affect the running of the statute of limitations.</p>

<p> (1) Railroads: Fires set by negligence: Evidence: Nonsuit. (%) Error in admitting evidence, how cured. </p> <p>1. In an action against a railroad company for the burning of a barn there was evidence that it was a very dry time; that a strong wind was blowing from the defendant’s track towards the barn, which stood about thirty feet from the centre of the track; that the Are caught on the side of the barn next the track; that there was dry grass on the right of way which had been burned in a streak from the track to the barn; that defendant’s engines had passed up and down by the barn, and that live coals and cinders had been deposited on the track, shortly before the Are occurred; and that the burned streak of grass started from the track at the place where such coals and cinders were seen. No other cause for the Are was shown. Held, that this evidence was suAicient to sustain a verdict for the plaintiff.</p> <p>2. An error in the admission of evidence is cured where such evidence is withdrawn from the consideration of the jury before the case is argued to them by counsel, and they are afterwards instructed to disregard it.</p>

<p>APPEAL from the Circuit Court for Waukesha County.</p> <p>The facts are stated in the opinion. There was a verdict for the defendant, and from the judgment entered thereon the plaintiff appeals.</p>

<p> (1) Sale, of chattels: Payment by third person. (2) Statute of frauds: Promise to pay debt of another. </p> <p>1. In an action for the price of goods purchased by the defendant for tiie benefit of a third person not a party to the suit, payment by such third person, though not made by authority of the defendant, is available as a defense if it was accepted by the plaintiff in satisfaction of the debt.</p> <p>2. If the original debtor is not released from liability, a promise by a third person to pay the debt, in consideration that the creditor will release a lien which he holds upon the property of the debtor, when no benefit accrues thereby to such third person, is within the statute of frauds (B. S. sec. 2307), and is void unless in writing.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This is an action for damages alleged to have been sustained by the plaintiff by reason of the defendant having wrongfully and wickedly debauched and carnally known the plaintifE’s wife, Addie, in March, 1887. The answer, after admitting that the plaintiff and Addie were husband and wTife, consisted of a general denial.

The action was brought by Hannah Hiley against the. Masonic Benefit Association of Wisconsin to recover the' sum of $1,000, alleged to be due to her from said association' on the death of her husband, Robert .Rilejn The said association paid into court the said sum of $1,000, and thereupon the children of Robert Riley by his first wife were-made defendants, and the action was dismissed as to the-association.

The case is stated in the opinion. to ^the'point that the facts stated in the complaint showed no ground for equitable interference, cited State ex rel. Atfy Gen. v. Messmore, 14 Wis. 164; State v. Bloom, 17 id. 521; Dean v. Gleason, 16 id. 1; Laver v. McGlachlin, 28 id. 364; State v. Bartlett, 35 id. 287; State ex rel. Wood v. Goldstucker, 40 id. 124; Sprague v. Brown, id. 612; Chicago & If.

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: This is an action brought by the respondent to restrain the appellants, the supervisors of the towm of Waukesha, and commissioners of the village of Waukesha, from opening a highway laid out by them, part of which is in said town of Waukesha and is laid across lands belonging to the plaintiff, and a portion of which highway so laid, out includes within its bounds a part of the…

<p> Corporations: Stock issued in consideration of property: Liability of stockholders: Patents: Assignment. </p> <p>1. Inventions for which patents have been applied for, and the prospective patents, are “property,” within the meaning of sec. 1753, E. S., in consideration of which stock may be issued.</p> <p>2. An agreement by which an inventor assigns to other persons part interests in prospective patents and all agree to assign the patents, when issued, to a corporation organized by them, and the assignment of such agreement to the corporation, vest in the corporation the whole beneficial interest in the patents.</p> <p>3. Where full paid stock is issued for property received by the corporation, the holders thereof cannot be charged with a debt of the corporation on the ground that such stock was not in fact fully paid, unless there was actual fraud in the transaction and the credit was given to the corporation in the belief that its stock was fully paid.</p>

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

<p> False pretenses: Obtaining “property:” Board and lodging. </p> <p>The defendant engaged board and lodging without any agreement as to when payment should be made. After several weeks, when a bill was presented to him, he falsely stated that he had money on deposit at a certain place, which he expected every day, with which to pay for such board. On the strength of this representation he was allowed to remain and continue such board, for which he never paid. Held, that he was not guilty of obtaining “ goods, wares, merchandise, or other property,” within the meaning of sec. 4423, R. S.</p>

<p>APPEAL from, the Circuit Court for Grant County.</p> <p>The cause was before this court on an appeal from an order overruling a demurrer to the petition of the interven-ers. That order was affirmed. 69 Wis. 621. Afterwards the plaintiff filed an answer to such petition, which in effect denied that the goods levied upon and sold under the execution on his judgment were the property of the firm of Powers & Stone, or that any goods were sold to Powers & Stone by the petitioners or other creditors, or that any such firm ever existed; and alleged that all of said goods were sold to Frank L. Powers, and were his sole property, subject to the payment of his debts only, and that the plaintiff’s judgment and execution were valid and not fraudulent. Upon the trial of the issue made by this answer a jury was impaneled and answered a number of questions submitted by the court. Afterwards the court made and filed its findings of fact, the substance of which will be found stated in the opinion. As a conclusion of law from such facts the court found that the lien of the interveners upon the money in the hands of the sheriff to the amount of their judgment and costs is superior to the lien of the plaintiff under his execution against Frank L. Powers, and that the interven-ers are entitled to the relief prayed for in the petition. From the judgment entered accordingly the plaintiff appeals.</p>

<p> (1, 8, 6J Debtor and creditor: Fraudulent conveyance: Garnishment: Judgment: Invalid attachment. (2) Appeal: Immaterial errors. (S) Action in firm name: Amendment. (Ih 7-11) Publication of summons: Verification of complaint by attorney: Proof of publication: Variance in name of newspaper: Filing corrected affidavit: Residence of defendant. </p> <p>1. The evidence in this case — showing, among other things, that the garnishee purchased a stock of goods from the defendant without having seen them or any invoice of them, and without making any inquiries, except of the defendant, whom he had known but a short time, as to the quantity and'value of the goods; that he had admitted that they were a bankrupt stock which he had purchased at twenty cents on the dollar; and that he commenced to sell them at about one third of their value,— is held to sustain a finding that the sale was fraudulent to the knowledge of the garnishee, and that he was liable to the creditors of the defendant for the value of the goods.</p> <p>2. In a case tried without a jury the judgment will not be reversed for the admission of incompetent testimony, nor for the exclusion of competent testimony which could not have changed the result.</p> <p>3. A valid judgment against the defendant in the principal action is essential to the validity of the judgment against a garnishee, and the latter may be heard to assert the invalidity of the principal judgment.</p> <p>4. Where the summons was not personally served it is essential to the validity of a judgment against the defendant that there should have been due publication of the summons under a valid order therefor made after the filing of a verified complaint.</p> <p>5. Though the principal action was brought and prosecuted by partners in the firm name, the judgment therein is not void, and before judgment in the garnishee action the proceedings may be amended by inserting the'names of the partners as plaintiffs.</p> <p>6. A valid attachment not being essential to the maintenance of an action upon a demand past due, the invalidity of an attachment therein does not affect a judgment against a garnishee.</p> <p>7. Verification by an attorney, to the effect that he has read the complaint and knows the contents thereof, and verily believes the same to be true; that the sources of his information, which are the grounds of his belief, are derived from statements of the plaintiffs’ account, and letters in reference thereto, received by him from the plaintiffs; and that the reason the complaint is not verified by one of the plaintiffs is that none of them are now within the county of E., in which county the deponent resides,— is held sufficient.</p> <p>8. An affidavit of the publication of a summons in “ The Eau Claire Daily Leader, a daily newspaper printed and published at the city of Eau Claire,” etc., shows a compliance with an order directing publication in the “Daily Leader, a newspaper published in the city of Eau Claire,” etc.</p> <p>9. Proof of the publication of a summons “six weeks successively, commencing,” etc., does not show compliance with a statute requiring the publication to be made “not less than once a week for six weeks.”</p> <p>10.A motion in this court for leave to file a corrected affidavit, of pub-i lication of the summons is granted with directions to file such affidavit in the trial court, to be transmitted to this court.</p> <p>11. An affidavit for an order for publication of the summons, stating that up to about the time the action was brought the defendant ■was a resident of the state, that about that time he departed from the state with intent to defraud his creditors or to avoid the service of a summons upon him, and that the plaintiffs are unable to ascertain either the post office address or residence of said defendant, sufficiently shows that the defendant was a resident of the state when the affidavit was made, under subd. 2, sec. 2639, R. S.</p>

<p>APPEAL from the Circuit Court for Rook County.</p> <p>The facts are stated in the opinion.</p> <p>contended, inter alia, that it was error to enter judgment, passing title to the property in question and directing costs to be taxed and inserted in the judgment, before the report of the referee came in. There can be but one judgment or decree in an equity cause in this state, and that judgment is the final judgment which disposes of all the rights of the parties. Sellers v. Union L. Go. 36 Wis. 398; Massing v. Ames, id. 409; Singer v. Heller, 40 id. 544; Stahl v. Gotzenberger, 45 id. 121. This judgment is final. Forgay v. Conrad, 6 How. 201; Freem. Judg. sec. 340. The taxation of costs in the cause and their insertion in the judgment make it so. Williams v. Field, 2 Wis. 421; Oord v. Southwell, 15 id. 211; Bonesteel v. Bonesteel, 30 id. 151; Smith v. Hart, 44 id. 230; Andrews v. Welch, 47 id. 132; Haseltvne v. Simpson, 61 id. 427. But it provides for the entry of a second final judgment. There can be no such thing as two final judgments-in any one case. Phillips v. Geesland, 2 Pin. 120. The court erred in refusing to compel respondent to elect as to whether he would proceed for a dissolution of the partnership and an accounting, or for the rescission of the contract of partnership. Trimble v. Doty, 16 Ohio St-1 119-129; Morris v. Bexford, 18 N. Y. 552. A party seeking a rescission cannot insist that he is entitled to rescission in part and affirmance in part of an entire contract. Potter v. Tag-gart, 54 Wis. 395, and cases cited; 1 Bates’ Oh. Pr. 391; 2 Daniel’s Oh. Pr. 713. He must elect and restore wholly and without reservation before he is entitled to rescission. Grant v. Law, 29 Wis. 99; Estes v. Reynolds, 75 Mo. 563; Lapp v. Ryan, 23 Mo. App. 436; Weed v. Page, 7 Wis. 503; Hollenbech v. Shoyer, 16 id. 499; Castigan v. Hawhins, 22 id. 74; Altering v. Vilas, 21 id. 88; Coleman v. Columbia Oil Co. 51 Pa. St. 74; Rand v. Webber, 64 Me. 191; Heal v. Reynolds, 38 Kan. 432; Webster-Glover L. <& M. Co. v. St. Croix Co. 71 Wis. 317. A rescission will not be decreed where the parties cannot be placed in statu quo. Campbell v. Fleming, 1 Acl. &E. 40; 2 Chitty, Cont. (2nd Ain. ed.), 1037; Kelsey v. Snyder, 118 Ill. 544-; Morse v. Brackett, 98 Mass. 205; Iloadley v. Mouse, 32 Yt. 179; S. G. 76 Am. Dec. 167, and note; Conner v. Henderson, 15 Mass. 319; Bénj. Sales (2nd Am. ed.), secs. 415, 452, and cases cited; Bartlett v. Drake, 100 Mass. 176; Kerr, Er. & M. 48; McCrillis v. Garitón, 37 Yt. 139; Merman v. Haffenneyger, 54 Cal. 161; Jeffers v. Forbes, 28 Kan. 174; Smith v. Brit-tenham, 98 Ill. 188; Fay v. Oliver, 20 Yt. 118; S. G. 49 Am. Dec. 764, ar*d note; Munt v. Silk, 5 East, 449; Blackburn v. Smith, 2 Exch. 783; White v. Miller, 22 Yt. 380; Oakes v. Turquand, 2 H. L. App. Cas. 325; Kirk v. Mamilton, 102 U. S. 68; Stanton v. Mughes, 97 N. C. 318; Beed v. Bland-ford, 2 Young & J. 278; Doughten v. Camden B. <& L. Asso. 41 if. J. Eq. 556; Strong v. Lord, 107 Ill. 25; Smith v. Brittenham, 109 id. 540; Mixer's Case, 4 De Gr. & J. 575; Kingsford v. Merry, 11 Exch. 577; White v. Garden, 10 C. B. 919; Western Bank v. Addie, L. R. 1 Scotch & Div. App. Cas. 145; Urquhart v. Macpherson, L. R. 3 App. Cas. 831; Clarke v. Dickson, Ellis, B. & E. 148; Curtiss v. ILowell, 39 N. Y. 211-215; Willard’s Eq. Jur. 303; Clark v. Balter, 5 Met. 452; McDonald v. Hyde, 23 Wis. 487; Getty v. Dev-lin, 54 N. Y. 403; Francis v. N. Y. c& B. F. B. Co. 17 Abb. N. C. 1; Grant v. Law, 29 Wis. 99, and cases cited; Weeks v. Bobie, 42 N. Ii. 316; Neal v. Beynolcls, 38 Kan. 432.</p> <p>argued, among other things, that if the defrauding party, by his own act, has made restoration to his original position impossible, it is no objection that such restoration is not made; especially is this true if the act is done in furtherance of the fraud. Hammond v. Pennock, 61 N. Y. 145; Masson v. Bovet, 1 Denio, 69; S. C. 43 Am. Dec. 651; Gatling v. Newell, 9 Ind. 572; Durrett v. Simpson's Beffs, 3 T. B. Mon. 517; S. C. 16 Am. Dec. 115; "Wells on Replevin, ¿531; Kerr, Er. & M_ (Bump’s Notes), 33T, 335, note; GueJcenheimer v. Angevin»,, 81 N. Y. 894; Brown v. Norman, 65 Miss. 369; Favilkner v. Klamp, 16 Neb. 174; First Nat. Bank v. Tocum, 11 ick. 328; llegenmeyer v. Marks, 37 Minn. 6; Baker v. Lever-,. 67 N. Y. 304, 310; Thackrah v. Haas, 119 U. S. 499; Peters-v. Ililles, 48 Md: 511; Smith’s Adm’r v. Smith, 30 Vt. 139'.. Not only is the defrauded party in no case bound to restore' anything but the consideration of the contract sought !©• be rescinded, but if it appears that he has obtained less; than will be found due him by the person guilty of tie-fraud, restoration even of the consideration is not necessary.. Potter v. Taggart, 59 Wis. 1; Thackrah v. Haas, 119 U1 Si 499; Wright v. Dickinson, 67 Mich. 590; Peters v. Hitt'es-,. 48 Md. 511; Physio Medical College v. Wilkinson., 108 Mdl. 314; Pearse v. Pettis, 47 Barb. 276; Millard v. Farley, 1¡5> La. Ann. 518. The rule as to restoration is not, in equity,, imperative, especially in cases of fraud. 2 Parsons, Conk, sec. 680; Coffee v. Ruffin, 4 Coldw. 487, 516; Neville v Leverett, 32 Ala. 410; Coffee v. Newsom., 2 Kelly (Ga.), 442; 461-2; Taft v. Kessel, 16 Wis. 273-279; Brown v. Norman, 65 Miss. 369; Worthington v. Campbell, 1 S. W. Rep. (Ky.), 714; Thackrah v. Haas, 119 U. S. 499; Veazie v. Williams, 8 How. 134; Gould v. Cayuga Co. Bank, 86 N. Y. 75, 81-83; Allerton v. Allerton, 50 id. 670; Cropland v. Hall, 33 N. J. Eq. Ill, 118; Barker v. Walters, 8 Beav. 92, 96;, Savery v. King, 5 H. L. Cas. 626; Wright v. Dickinson, 67 Mich. 590; Downer v. Smith, 32 Yt. 1.</p>

<p>Municipal corporations: Injury to person from hydrant on sidewalk: Excessive damages: Evidence.'</p> <p>1. If the officers of a city unnecessarily suffer a dangerous structure or object to remain upon its streets, after notice of its existence and time to remove it, the city is liable for an injury caused thereby to one in the exercise of proper care. So held, where the plaintiff, in the night time, fell over a hydrant maintained within the limits of the sidewalk by a private company with the consent of the city.</p> <p>S. In an action for personal injuries a verdict for $600 is held not excessive, the evidence tending to show that the injuries were quite serious, resulting in considerable suffering, expense, and loss of time, that the plaintiff’s health and ability to earn money were ' thereby impaired, and that to some extent the injuries might be permanent.</p> <p>3. In an action for personal injuries, evidence as to the plaintiff’s physical condition before and after the injury, and that he complained of pain to his physician and others, is admissible.</p> <p>4. In such an action evidence as to the effect which a certain gymnastic exercise, in which the plaintiff engaged shortly after the injury, had upon another person who engaged therein, is inadmissible.</p>

<p> Insurance against fire: Poiver of company to contract without written application or policy: By-laius: Agency: Statute construed. </p> <p>1. The by-laws of an insurance company provided that all applications for insurance should, before the policy was issued, be examined and approved by the board of directors or by .a committee appointed for that purpose, and that the secretary should, after the. ' applications had been approved, issue and deliver all policies and keep a list thereof. The instructions to its agents stated that policies were issued in the office of the company, signed by the president and. secretary, and that as soon as the application should be approved by the respective committees it should be in force from IS o’clock at noon of the same day, unless a separate date was fixed in the application. The custom of the company was to issue new policies, covering the same risks, on the request of the agent who effected the original insurance, without any new written application therefor; and, as a general rule, the secretary issued policies without any approval by a committee of the applications therefor. The act incorporating the company (ch. 872, Laws of 1856) did not limit its power to the making of such contracts only as were evidenced by policies. Held, that the secretary had authority to issue a new policy continuing an insurance, without any new written application therefor, and that the compdny could bind itself by a contract of insurance without issuing a written policy.</p> <p>2. An agent of such company received the premium for a new policy and told the applicant that he was insured for another year from the termination of his first policy, and the company or the agent retained the premium until after a loss had occurred. Held, that under sec. 1977, R. S., the company was bound by the contract of the agent.</p> <p>3. A provision in the first policy that “ the company is not liable for contracts made by agents before such contracts have been approved and certified to in writing by the secretary,” did not prevent the agent from making such new contract.</p> <p>4. The words “any insurance corporation” in sec. 1977, R. S., include mutual insurance companies. ■</p>

<p>APPEAL from the Circuit Court for Waukesha County.</p> <p>The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.</p> <p>They, contended, inter cilia, that the contract if completed at all was completed by the delivery ; but that took place on Sunday, and was, therefore, void. Smith v. Foster, 41 R. II. 215; Moseley v. Hatch, 108 Mass. 517; Fitzgerald v. Robinson, 112 id. 371. The delivery was void and incapable of ratification. Yinz v. Beatty, 61 Wis. 645, and cases cited. An illegal contract is incapable of becoming the consideration of a subsequent promise. Boutelle v. Melendy, 19 R. II. 196; Simpson v. Fficholls, 3 Mees. & W. 240-244; S. C. 5 id. 702, note; Tuckerman v. Hinkley, 9 Allen, 454; Rountz v. Dickson, 40 Miss. 341; Olcopp v. líale, 112 Mass. 368; Rlaisted v. Palmer, 63 Me. 576; Pope v. Linn, 50 id. 83; Bates v. Ghesebro, 36’Wis. 636. There was not a sufficient acceptance to take the contract out of the statute of frauds. Oaulkins v. Ilellman, 47 R. Y. 449; Remide, v. Sandford, 120 Mass. 309; Stone v. Browning, 68 R. Y. 598-604; Denny v. 'Williams, 5 Allen, 1; Browne, Stat. Frauds, sec. 321.</p>

<p> Railroads: Fires: Negligence: Court and jury. </p> <p>In an action to recover for .damage done by fires alleged to have been negligently set on the defendant’s right of way and allowed to ■ spread therefrom to plaintiff’s land, it is held that upon the evidence (too voluminous to he here stated) the questions of defendant’s negligence and plaintiff’s contributory negligence were properly left to the jury, and there was no abuse of discretion in refusing to set aside a verdict in favor of the plaintiff.</p>

Ejectment. The land in question was conveyed by the owner thereof to one Chas. H. Severance in July, 1872. On January 12,1874, he conveyed the land to his wife. After-wards, on March 31, 1875, she executed a quitclaim deed thereof back to her husband, and both then united in a conveyance to the defendant Franklin Gilson, and Franklin Gilson and his wife then conveyed the land again to Mrs. Severance.

At tbe general election held in November, 1888, at which presidential electors, representatives in congress, members of the legislature, and state and county officers were elected, the parties to this controversy were opposing candidates for the office of county superintendent of schools for Oconto county.

The following statement of the case was . prepared by Mr. Justice Tatloe as a part of the opinion: The plaintiff and respondent is a corporation, and brought this action against the appellants and defendants to recover for the value of goods, wares, and merchandise alleged to have been sold to them as copartners.

Ejectment. The land in question was acquired by the plaintiff on December 6, 1884, and was sold to the defendant under an execution issued December 16, 1884, on a judgment against the plaintiff, rendered February 27,1877. Other facts are stated in the opinion. The plaintiff appeals from a judgment in favor of the defendant.

The following statement of the case was prepared by Mr. Justice Cassoday: This action is to recover $411.02, being the proceeds of 6,603 cedar posts sold by the defendants on commission for the plaintiff.

Action for a trespass to land. The defendant answered that the locus in quo wTas owned by and in the possession of the Chicago ’& Northwestern Railway Company, and that the acts done thereon-by him were done under its direction and as one of its employees.

<p> Fraudulent conveyance: Insolvency: Voluntary assignment. </p> <p>1. In an action to set aside a conveyance made by an insolvent debtor to his father-in-law just prior to an assignment for the benefit of his creditors, there was evidence that the grantee lived within a mile of the grantor, and visited him frequently; that the deed was made to the grantee without solicitation or pressure on his part; that he had advanced to the grantor, during the seven years previous, over §3,000 without security, and that when the last advance was made the grantor had promised to convey the land to him; that the house on the land had been built with the grantee’s money; and that on the day the deed was executed he went to the grantor’s house at his request, and found the justice ready to take the acknowledgment, and was told that the deed would be recorded at once. The grantee testified positively that he did not know or suspect, until after the deed was executed, that the grantor was insolvent or embarrassed. Held, that the facts were insufficient to sliow that the grantee knew or had reasonable cause to believe that the grantor was insolvent, within the meaning of ch. 349, Laws of 1883. ></p> <p>2. Mere grounds of suspicion as to the solvency of a debtor are not “reasonable cause to believe such debtor insolvent,” within the meaning of said act.</p>

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: Tbis action was commenced by the plaintiff to recover damages for an injury sustained while in the employment of the defendant. The undisputed facts, as shown by the evidence on the trial, are the following: On the Jth of July, 1886, the plaintiff entered into the employ of the defendant in its paper-mill.

unty. The facts are stated in the opinion. Judgment was entered on the special verdict, in favor of the plaintiff, for $1,600 and costs. The defendants appeal.

• Action for the conversion of personal- property. The principal facts are stated in the opinion.

The parties entered into a contract in writing, dated April 28, 1888, in and by which the.defendants sold to the plaintiffs “ all the logs owned by them and situated on the right of way of the Wisconsin Central Railroad Company near Knight’s siding in Ashland county, said logs being one million feet, more or less, board measure,” for $4 per thousand feet; $2,000 to be paid down, the balance “ upon the day such logs are scaled by the scaler to be mutually agreed upon by the…

<p> Appeal: Bill of exceptions: Evidence: Charge to jury. </p> <p>1. The question whether the trial court erred in refusing to direct a verdict cannot be considered on appeal where the bill of exceptions fails to show that it contains all the evidence given on the trial.</p> <p>2. The charge to the jury, as written out by the court reporter and filed with the clerk, is not a part of the record, and can be considered on appeal only when embodied in the bill of exceptions.</p>

<p> (1) Partnership: Interest in land: Settlement. (%) Laches:- Pleading. fSJ Deed: Acknoioledgment: Authentication. </p> <p>1. A purchase of land by the plaintiff and his partner with partnership money was entered upon the books of the firm, was afterwards classed under worthless accounts, and upon the dissolution of the firm was included in an-inventory of its assets. By a bill of sale or conveyance, under seal, appended to the inventory the plaintiff sold all the property described therein to his partner. The latter thereafter paid the taxes, bought a tax title, leased a part of the land, and treated it as his individual property. The plaintiff never concerned himself about it until after his partner’s death, nearly twelve years after the dissolution, when he brought an action to compel the heir of the partner to convey an interest therein to him. Upon evidence' showing the above facts, among others, it is held that the plaintiff had surrendered his interest in the land to his partner, and is estopped to make any claim thereto.</p> <p>2. The plaintiff’s laches in bringing the action jiot having been pleaded or passed upon as a defense in the trial court, is not regarded as such on appeal, but is considered in connection with the evidence to show that the plaintiff’s interest had been included in the partnership settlement.</p> <p>3. The certificate, not under seal, of a county recorder, who is not shown to be the clerk or other certifying officer of a court' of record, appended to the acknowledgment of a conveyance taken before a justice of the peace in another state, is not a proper authentication, such as will render the deed admissible in evidence, under secs. 3319, 4156, R. S.</p>

The following' statement of the case was prepared by Mr. Justice Oassoday: It appears from the record that October 2, 1883, the plaintiff entered into a contract with Stratton & Ha}r,. whereby it was agreed that they should cut and bank all the logs on a piece of land described, for which the plaintiff agreed to pay them $2 per M. feet the 1st of each month after the scale sheets of said logs were received, and $.60 per M. feet when all of said logs were delivered, on the…

The action was commenced in justice’s court. The complaint' alleges that the plaintiff is a corporation under the laws of Illinois; that the defendant is indebted to it in the sum of $115 on balance of an account stated for goods, wares, and merchandise sold and delivered to him at his request. The answer denied the allegations of the complaint, and set up a counterclaim for services rendered by the defendant for the plaintiff, amounting to $115.

The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion: The respondent brought an action against Bernard Lynch to recover upon a note executed by him in April, 1887, for the sum of $400, and in such action John H, Knight was summoned as garnishee. The garnishee answered, denying any indebtedness to said Bernard Lynch. The plaintiff took issue upon bis answer.

The following statement of the case was prepared by-Mr. Justice Cassoday: The amended complaint alleges, in effect, that March 11, 1887, the plaintiff and one Rhodes entered into an agreement in writing with the defendants, whereby they agreed to construct, and in every respect complete, all the work required by the defendants to be.done on the line of the Duluth, South Shore & Atlantic Railroad, in such manner as.would conform in every respect to the direction of the…

Action to enforce a lien upon certain mill premises for lubricating oils alleged to have been sold to the defendant Lane to be used, and to have been actually used, in the protection and repair of mill machinery. The circuit court found the facts to be substantially as alleged in the complaint, and rendered a personal judgment against the defendant Lane, but denied the plaintiff’s claim for a lien. The plaintiff appeals from the judgment.

The defendant Breen is the sheriff of Ashland county, and this action was brought to restrain him from selling on execution issued out of the circuit court on a judgment recovered against the plaintiff’s intestate, John Mahoney, by the defendant Hake, certain lots of Mahoney, alleged to have been his homestead when the judgment was recovered. The action was commenced by Mahoney in his life-time.

<p> Municipal corporations: Highways: Death caused by defect outside of traveled track. </p> <p>At a point where a highway crossed a ravine from four to six feet deep, the town had built a wagon road or bridge twenty feet wide, guarded on both sides by substantial railings, and also a sidewalk properly guarded. The open space between the-road and theValk was about twenty feet wide and from four to six feet below their level, and was not- prepared or used for travel. In this space, about two feet from the line of the sidewalk, was a hole or well which had been dng by some person not authorized by the town, and in which the water was about four feet deep. A boy five or six years old, while attempting to fill his rubber ball and get a drink at this hole, fell in and was drowned. Held, that his death was not caused by any negligence on the part of the town, even if its officers were chargeable with notice of the existence of the hole.</p>

The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. They contended, inter alia, that the plaintiff’s representation as to what lauds could be located under the warrant was a warranty, for the breach of which the defendant might rescind the sale. 1 Parsons, Cont. 580; Giffert v. West, 33 Wis. 617; Brooks v. McDonnell, 41 id. 139; Heave v. Arntz, 56 id. 174; Passenger v. Thorium, 35 Barb. 17; 8. O. 34 N. Y. 634.

The plaintiff in error was tried in the circuit court of Ashland county, and convicted upon an information charging in due form that on December 25, 1S88, and at divers other times between that day and January 23,1889, he kept a house of ill fame in that county, resorted to for the purposes of prostitution and lewdness, and that at the times aforesaid he set up and kept a common bawdy-house and brothel.

The plaintiff, a minor, brought this action, by his guardian ad litem, to recover damages fcr personal, injuries received by him while walking upon one of the tracks of the defendant company, on its depot grounds at Marinette, on the evening of August 31, 1888, caused by his being run against by a car of the defendant moving on such track. He alleges the negligence of the defendant as the ground of his action.

The facts are sufficiently stated in the opinion. contended, inter alia, that the trial court erred in its instruction as to intent. In all cases of an attempt to kill by means not constituting an assault, no force is directed against the person whose death, is intended, and therefore it is necessary to have some evidence, other than the acts of the defendant, to show the intent with which the act is done.