Volume 76 — Wisconsin Reports

The action was brought July 10, 1886, to recover a balance alleged to be due to the plaintiff on a sale of his interest in a partnership to the defendant. The defendant denied that'anything was due from him to the plaintiff at the time the action was commenced, and counterclaimed for goods sold and delivered to the plaintiff, and also for a wrongful attachment of the defendant’s property.

APPEÁL from the Circuit Court for Taylor County. On September 19, 1888, judgment was rendered in a justice’s court in favor of E. R. Sohweppe and against Jacob Wellauer & Co. for $93.75 and costs. On the same day one O. P. Thompson, who had been summoned as garnishee, was ordered to pay into court for the benefit of the plaintiff, the amount of said judgment.' Afterwards a notice of appeal was filed with the justice, entitled “FT.

The substance of the complaint'is stated in the opinion. The plaintiff appeals from orders sustaining a demurrer to the complaint interposed by the defendant Anderson and a separate demurrer interposed by the defendants Butledge, Birinyple, and McKinzie. to the point that the action was properly brought on the .equity side of the court, cited Johnson v. Towsley, 13 Wall. 72; French v. Fyan, 93 U. S. 169; Fhrhardt v. Hogaboom, llo id. 67; Gough v. Dorsey, 27 Wis. 119; State…

<p>APPEAL from the Circuit Court for Price County.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: It is undisputed that early in 1887 the defendants, under the firm name of Langdon, Henry & Co., entered into a written contract with the Minneapolis, Sault Ste.

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

EEEOE to the Circuit Court for Portage County. The case is stated in the opinion. to the point that the court erred.in admitting evidence as to the condition of the railroad other than at the exact time and place of the accident, cited Grand Papids & I. R. Go. v. Huntley, 38 Mich. 537; Reed v. N. Y. G. R. Go. 45 N. T. 574; Ruggles v. Ffevada, 63 Iowa, 185; Kuhns v. W. 1. da FF. R. Go. 70 id. 561; Parker v. Portland Pub. Go. 69 Me. 173; Pougan v. Ohamplain Transp>.

Action against the trustees in possession of and operating the W isconsin Central Railroad, to recover the value of horses killed upon the track. The facts .will sufficiently appear from the opinion. The defendants appeal from a judgment in favor of the plaintiff.

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion:</p> <p>The complaint in this action-, after alleging that the plaintiffs were copartners doing business in New York state, and that the defendant was a corporation doing business in Milwaukee, Wisconsin, sets out the following facts as constituting their cause of action, viz. :</p> <p>“That on the 16th day of December, A. D. 1887, at Rochester aforesaid, the said plaintiffs, as such firm, sold and delivered to said defendant, at its request, one hundred and thirty-nine (139) barrels of apple cores and parings, for which said defendant promised to pay to the said plaintiffs the sum of $529.76 on their draft at five days’ sight for said amount payable to the order of said plaintiffs; that thereafter, on the 16th day of December, A. D. 1887, said plaintiffs, under their said firm name, made their certain bill of exchange in writing, dated on that day, directed to the said Both Manufacturing Company, and thereby required the said company, five days after sight, to pay to the order of the said plaintiffs, by the said firm name, the said sum of $529.76, for value received, and the same was duly-indorsed by said plaintiffs under their said firm name of Michael Doyle & Co., and was duly presented to the said defendant for acceptance on the 10th day of January, A. D. 1888, together with an account rendered for said claim; that said defendant then and there re,fused to accept said draft, and has ever since refused to accept or pay the same, and the said amount is wholly unpaid. And said plaintiffs further aver that there is now due and owing to the said plaintiffs therefor, from the said defendant, the said sum of $529.76, together with interest from said 10th day of January, A. D. 1888, for which they demand judgment, and for their costs and disbursements herein.”</p> <p>The answer admits the partnership of the plaintiffs and the corporate character of the defendant; admits that it refused to accept the draft mentioned in the complaint; saj's it has not sufficient knowledge to form a belief as to whether or not the'plaintiffs, under their firm name, made their bill .of exchange in writing dated on the 16th day of December, 1887, directed to the defendant, and thereby requiring the defendant, five days after sight, to pay to the order of the plaintiffs, by their said firm name, the sum of $529.76, or that the same was duly indorsed by the plaintiffs under their said firm name; but alleges that the defendant -was informed by telephone that a draft was in the hands of a certain bank in the city of Milwaukee, drawn on the defendant by the plaintiffs, but denies that said draft was ever presented to the defendant for acceptance, and denies that the plaintiff had any right whatever to draw said draft, or any draft, upon the defendant, and further denies each and every allegation in the complaint, except as hereinbefore admitted.</p> <p>The action was tried in the superior court of Milwaukee county by the court and jury, and the plaintiffs recovered the amount claimed in their complaint. From the judg-meat rendered in favor of the plaintiffs the defendant appeals to this court.</p> <p>The material facts in'the case are the following: On November 28,1887, the plaintiffs telegraphed to the defendant, in Milwaukee, that they had a “ car of apple waste at 2-J f. o. b. cash; subject wire acceptance.” It is conceded that the letters “f. o. b.” signify “free on board,” that is, that the plaintiffs should deliver these goods to the defendant, without expense, on board car or vessel at place of shipment. On December 2,1887, the defendant wrote to the plaintiffs in reply to said telegram: “Tour telegram to hand. We will take a car of apple waste, provided they are nice and dry, at your offer. Terms to be five days’ sight after receipt of goods, as we do not like the idea of drawing on B. L. Ex. Duffy Cider Co. Will give you reference, if you prefer any.” To this letter there was a postscript making inquiries about the prices of canned fruits, not material in this case. On December 5, 1887, the plaintiffs replied to defendant’s letter of the 2d: “We have entered your order of the 2nd at the price and terms therein mentioned, and will ship as requested.” On the 9th of December, plaintiffs sent to the defendant by mail an invoice of the car-load of apple waste, showing the number of barrels sold to defendant and the weight of each barrel. On the said 9th of December, the plaintiffs shipped the car-load of apple waste on board a car of the Rome, Watertown & Ogdensburg Railroad Company at Sodus station, N. Y. The waste was shipped in the name of the plaintiffs as consignors, to Milwaukee, Wis., and consigned to themselves in Milwaukee, and they took from the company a bill of lading in their own names as consignors and consignees. On the 16th of December the plaintiffs drew their draft upon the defendant for the sum of $529.76, payable to the order of themselves. The following is a copy of the bill or draft: “$529.76. Rochester, N. T., December 16th, 1887. Five days after sight, pay to the order of ourselves five hundred and twenty-nine and 76-100 dollars, value received, and charge the same to account of Miohael Doyle & Co. To Roth Manufacturing Co., Milwaukee, "Wis.”</p> <p>The plaintiffs indorsed the bill of lading of the waste in which they were consignees in blank, and attached the draft to the bill of lading so indorsed. This bill of lading and draft were deposited by the plaintiffs with their bank in Rochester, N. Y., and by that bank they were sent to the First National Bank in Milwaukee for collection. The draft was also indorsed by the plaintiffs before delivering it to the bank at Rochester. Accompanying the draft and. bill of lading there were the following instructions to the bank in Milwaukee: “ Deliver documents attached on payment only. Hold for arrival of goods, if requested.”</p> <p>The evidence shows that the goods arrived at the depot of the St. Paul Railway Company in Milwaukee on the 19th of December, 1887. After the goods arrived at the depot, no notice of any kind was given to the defendant of their arrival, either by the company or by the plaintiffs or their agents; and the defendant had no actual knowledge of their arrival until long after the draft and bill of lading were returned to 'the plaintiffs, on the 10th of January, 1888. On the 17th of December, 1887, the plaintiffs, in replying to a letter written by the defendant on the 15th of December, among other things, say: “We have sent invoice, and have drawn as requested, at five days’ sight, bill of lading attached, which you will please protect on presentation, and oblige.”</p> <p>The draft was pever, in fact, presented to the defendant for acceptance, but the First National Bank notified the defendant by telephone, at four different times before the 10th of January, that the.draft was in the possession of the bank. What the exact nature of this notice was, does not appear from the evidence. It is also claimed by the plaintiffs that the defendant was notified by the bank that there was a bill of lading attached to the draft, but it is not claimed that defendant had any notice of the fact that the bill of lading was in the name of the plaintiffs as both consignors and consignees, or that the same had been indorsed b\T them in blank. On the trial, the plaintiff Doyle testified that they “ attached the bill of lading deliverable to our order as security for the draft,” and, again, “ that the consignee or drawee of the draft may know when he is accepting the same , that there is reliable security back of it covering the goods.” He further testified that, “ without the possession of that indorsed bill of lading, the defendant could not go to the depot and get the goods.” There was other evidence in the case, but nothing further than what is above stated which in any way tends to show that the plaintiffs had offered to deliver the goods to the defendant, or to deliver to it the bill of lading for said goods.</p> <p>At the close of the evidence, the defendant requested the court to instruct the jury to render a verdict in its favor. The court refused the request, and the defendant excepted;- and this refusal is assigned as error upon this appeal.</p>

<p> (1) Injunctional order: Modijieation by stipulation. (3) County orders: Sale: Statute of frauds. (3) Agency: Evidence. (4) Interest. C5) Evidence of demand. (6) Tender. </p> <p>1. An injunctional order restraining the owner of a county order from prosecuting an action against the county thereon, and restraining the county from paying such order, may be modified by a stipulation between said owner and the plaintiff in the injunction suit so as to allow the action on the order to he prosecuted to judgment and be there stayed.</p> <p>3. The plaintiff’s agent, with money which had been left in his hands for that purpose, purchased and held for the plaintiff a county order indorsed in blank by the payee. Held, a valid sale under the statute of frauds (R. S. sec. 3308).</p> <p>8. Such agency might be proved by parol. Smith v. Bouelc, 33 Wis. 81, distinguished.</p> <p>4. Under sec. 086, R. S., it was error, in an action on a county order, to direct a verdict including interest from the date of demand, especially where it did not appear that at that date there were funds on hand for payment of the order.</p> <p>5. An indorsement on a county order, signed by the county 'treasurer, and reciting that the order was “ presented for payment and refused for want of funds,” is sufficient evidence of a demand and refusal which would justify the commencement of an action thirty days thereafter, under cli. 240, Laws of 1881.</p> <p>6. A supplemental answer, filed after the cause was called for trial, alleged that the defendant now brings a certain sum into court ready to be paid to the plaintiff if he will accept it; and five days later the money was paid into court. Held, not a sufficient tender.</p>

Qroix County. Action to recover $50 alleged to be due to the plaintiff upon the sale of a shingle machine to the defendant. The answer admitted the indebtedness but set up a counterclaim-for $56.42 paid by defendant for taxes upon a tract of land purchased by him from the plaintiff. The facts will sufficiently appear from the opinion. Judgment was rendered upon a special verdict in favor of the defendant for $6.42- and costs. The plaintiff appeals.

<p>APPEAL from the Circuit Court for Oneida County.</p> <p>Previous to January, 1888, the parties were partners in a mercantile business at Rhinelander. At that date they dissolved their copartnership, and thereupon entered into a contract in writing, under seal, in and by which the plaintiff purchased of defendant all his interest “ in the personal property, bills receivable, and all timber lands” of the firm, and agreed to pay the latter $1,450 therefor, and also to pay all indebtedness of the firm except a certain mortgage debt therein specified. The writing contains other covenants concerning certain real estate of the firm not included in such sale, but these are not material to this action. Plaintiff thereupon paid defendant $1,450 as thus agreed, and entered into sole possession of the property so purchased by him.</p> <p>This action, which is for money had and received, was brought to recover $500 which the plaintiff alleges he overpaid the defendant for the property thus purchased. In his complaint and testimony the plaintiff thus accounts for the mistake. He says that in the latter part of 1881 (the defendant then being absent) he made an inventory of the assets of the firm, which he afterwards purchased, and the same invoiced at §11,000. He also figured up the liabilities of the firm, which he afterwards agreed to pay, and made the same amount to §6,600. "When the defendant returned, they entered upon negotiations which terminated in the above contract; and the actual agreement between them was that the plaintiff should make the purchase on the basis of the inventory, that is, the assets should be figured at $11,000; the amount of the firm liabilities should be deducted therefrom; from the balance, $1,500 should be deducted, and the plaintiff should pay the defendant one half the residue for his interest in the firm property and business. On the basis of $6,600 liabilities, the amount to be paid defendant was $1,450, and the written agreement was drawn up and executed on that basis. He says,, also, that about ten days after the execution of such agreement he discovered an error of $1,000 in his footing of liabilities, and that the actual liabilities of the firm were $1,600, instead of $6,600, and hence that he has paid the defendant $500 too much.</p> <p>The defendant, in his answer and testimony, denies that such was the agreement of the parties, but alleges and testifies that the plaintiff offered to pay him $1,450 for his interest in the firm property, and to pay the indebtedness of the firm, without regard to any invoice of assets or statement of liabilities, and that their written agreement expresses their contract, and the whole of it, just as it was made.</p> <p>The court instructed the jury that if the $500 was paid through a mutual mistake of the parties, or was obtained from the plaintiff by the fraud of the defendant, the plaintiff would be entitled to recover. The jury found for the plaintiff, and judgment was thereupon entered for him for the $500, interest, and costs. The defendant appeals from the judgment.</p> <p>They argued, inter alia, that an action for money had and received will lie to recover money paid under a mistake of fact. DieJcins v. Jones, 6 Terg. 483, 27 Am. Dec. 488; Garland v. Salem Bank, 9 Mass. 408; Waite v. Leggett, 8 Cow. 195, 18 Am. Dec. 441 and note; Mowatt v. Wright, 1 Wend. 355; Feems-ter v. Markham, 2 J. J. Marsh. 303; Eagle Bank, v. Smith, 13 Am. Dec. 41, note; Lane v. Pere Marguette Boom Go. 62 Mich. 63; Kurd v. Hall, 12 id. 125; Lawton v. Lloioe, 14 id. 261; Johnson v. Parker, 34 id. 601; Buffalo v. O'Malley, 61 id. 255. Where one party has mone}'’ which in equity and good conscience belongs to another,'an action at law for money had and received will lie to recover it. Ela v. Am. M. U. Exp. On. 29 Wis. 611; Wells v. Am. Exp. Go. 49 id. 224.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The facts are stated in the opinion. The defendants appeal from a judgment in favor of the plaintiff.</p>

APPEALS from the Circuit Court for Waupaca County. The following statement of the case was prepared by Mr. Justice Oassoday: It appears from the record that Boone lake is situated mostly on section 31, town 37, range 9 east; that the outlet of said lake is through an arm of the same, southerly into the Wisconsin river, at or near the line between that section and section 6, town 36, of the same range; that in 1878 the defendants the Browns and Anderson owned fractional lots…

<p>APPEAL from the Circuit Court for Saule County.</p> <p>The defendants appealed from an order overruling a general demurrer to the complaint. The substance of the complaint is stated in the opinion.</p> <p>They contended, inter alia, citing numerous authorities, that the allegation of a conspiracy may be entirely disregarded in determining whether or not the complaint states a cause of action. The gist of the action is the wrong done, and not the conspiracy to do the wrong. The complaint does not state a cause of action for libel, as the communications were absolutely privileged. It cannot be upheld as stating a cause of action for malicious prosecution, as it fails to show (1) a want of reasonable or probable cause to believe the plaintiff insane at the time of instituting the proceedings, or (2) a termination thereof favorable to the plaintiff.</p>

<p>Criminal Law AND PRACTICE. (1) Offenses against females: Amendment of statute: Uncertainty. (2) Report of ease to supreme court: Information charging no offense. (8, 4) Attorneys: Appointment: Compensation.</p> <p>1. The attempted amendment of seo. 4382, R. S., by ch. 193, Laws of 1887 (providing that “ any person who shall unlawfully and carnally know and abuse any female child under the age of fourteen years, shall be punished by imprisonment in the state prison during his natural life ”), is held void because of the uncertainty and confusion arising therefrom when considered in connection with the laws relating to fornication, adultery, seduction, rape, and incest.</p> <p>2. If, in a case reported to this court under sec. 4721, R. S., it does not appear that the defendant has been tried and convicted upon an information or indictment charging some offense punishable under the laws of this state, the court should so decide and decline to answer the questions submitted.</p> <p>3. The appointment by the trial court of an attorney to defend a person charged with any offense, is sufficient authority for the attorney to represent the accused in this court when the case is reported under sec. 4721, R. S.</p> <p>4. Under sec. 4713, R. S., where the attorney appointed to defend the accused has performed services in the supreme court, it is the duty of the court in which the prosecution originated, on application to the court and notice thereof to the district attorney, and on due proof of the services, to certify to a l’easonable compensation therefor. [Whether the county board may allow and pay for such services without the certificate of the circuit court, not determined.]</p>

The case is stated in the opinion. They contended, inter alia, that it was proper to impeach the witness Augusta by showing that she was a prostitute. Peal v. People, 42 FT. T. 270; Wilber v. Flood, 16 Mich. 40; Foster v. People, 18 id. 266; Jennings v. Prentice, 89 id. 421; 1 'G-reenl. Evi. (14th ed.), secs. 455, 456, 459; 1 Thomp. Trials, 459, 460.

The following statement of the case was prepared by Mr. Justice Cassoday: It appears in the record, and is undisputed, that May 9, 1888, the plaintiff in error, Franlc Neuman, obtained a license from the village board of Bloomington to keep a saloon therein for the sale, in'quantities of less than one gallon, of intoxicating liquors to be drank on the premises, to remain in force until the first'Tuesday in May, 1889.

Oroix County. The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: The respondent brought this action to recover damages for an injury which he received while working for the appellant in its saw-mill. The injury was received by having his leg caught in a cog-wheel gearing, which was in the vicinity of the place where the plaintiff was at work, and crushed so that it became necessary to amputate the leg above the knee.

Action to recover damages for personal injuries. The facts are stated in the opinion.

Action to recover tbe balance due upon a contract for tbe sale and delivery of pine logs. The facts are stated in tbe opinion. Tbe defendant appeals from a judgment in favor of the plaintiffs. They contended, inter alia, that when the application is to remove on the ground of prejudice and local influence, under the law of 1887, it may be made at any time before trial and in the state court. EisJe v. Henarie, 82 Peel.

<p>APPEAL from, the Circuit Court for Milwaukee County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>July 14, 1885, one Caroline Hellberg owned and occupied a farm in the town of Wauwatosa, Milwaukee county, described, and on that day agreed to sell and convey the same to the plaintiffs, and gave to them, on that day, an agreement in writing to that effect, as follows:</p> <p>“ [Exhibit A.]</p> <p>“ Received of Messrs. Jacob Eatz and Adolph Docter the sum of One hundred Dollars as part purchase money for 49 acres of land, with buildings and improvements thereon, situated in the Town of Wauwatosa, state of Wisconsin. Said described property being the same now occupied by me. Whole amt. of said purchase money is Twenty Thousand and three hundred Dollars. At the delivery of a warranted, perfect Deed, Two Thousand Dollars to be paid cash. The balance of Eighteen Thousand Three hundred Dis. payable in ten years from date of Deed, with 4£ % (four and one-half %) interest. Said Property situated in Town of Wauwatosa, and at present occupied by me & I promise to deliver Deed in six weeks. Above Amount in-eluded also all the two horses, wagons, and all the farmer Machienerie and Tools, etc., etc.</p> <p>“Dated, July 1J¡,, 18S5. Caroline Hellberg.</p> <p>“Witness: Lucy Toole.</p> <p>“ANDREW Schneider.</p> <p>“Recorded July 11th, 1885.”</p> <p>August 13, 1885, the plaintiffs served on the said Caroline a notice in writing, marked “ Exhibit B,” and therein, in effect, requested her to furnish the legal description of the forty-nine acres mentioned in Exhibit A, and further stating that upon such description being furnished and the deed in Exhibit A executed, covering forty-nine acres, they would comply with the conditions of that exhibit, but that, if the property owned and occupied by her contained less than forty-nine acres, they thereby offered to pay her such proportion of the whole amount of the purchase money mentioned in Exhibit A as the number of acres actually contained in said farm bore to the forty-nine acres, according to the terms specified in Exhibit A, and that, if she failed to perform her agreement contained in Exhibit A, they would take steps to enforce the specific performance thereof.</p> <p>September 5, 1885, the plaintiffs commenced an action against Caroline Hellberg, in the county court for Milwaukee county, to enforce the specific performance of the agreements on her part contained in Exhibit A. An answer was served therein, and upon the hearing thereof, November 19, 1885, and upon demurrer ore temos, the complaint in that action was dismissed, with costs, and judgment entered therein accordingly. Afterwards, and on March 16, 1886, on appeal'to this court, that judgment was affirmed. 65 Wis. 415.</p> <p>April 30, 1886, the said Caroline Hellberg died, seized of the legal title of said farm, leaving her surviving the defendants, Amelia, Fureh, Louis, Bertha, and Rudolph Kell-"berg, all being her children and only heirs at law. On or about May 7, 1887, this action was commenced for the specific performance of the said agreement, Exhibit A, against said heirs at law and the husband of said Amelia. The amended complaint in this action alleges, among other things, in effect, the making of said agreement, Exhibit A, July 14, 1885; that on that day, and previously, said Caroline falsely stated and represented to the plaintiffs that the farm contained forty-nine acres of land, which statements and representations were fully believed by the plaintiffs and relied upon by them; that, as a matter of fact, the farm contained only thirty-two and one half acres; that the improvements thereon were estimated at the value of $3,000, and the personal property thereon estimated at $300; that the plaintiffs were induced to make said agreement by the false statements and representations aforesaid; that about ten days thereafter the plaintiffs learned for the first time that the farm only contained about thirty-two and one half acres; that the said Caroline was not the owner of any other lands in said town; that August 25, 1885, the plaintiffs tendered to said Caroline Ilellberg the sum of $1,900, and made the demand mentioned in Exhibit B, and offered to perform as therein indicated, which she refused to do; that the plaintiffs have been at all times since the making of Exhibit A, and still are, ready and willing to accept a conveyance of the land actually owned and occupied by said Caroline at the time of making Exhibit A, and to pay and secure to be paid, according to the terms of said Exhibit A, the full consideration therein specified and agreed to be paid and secured, less such sum as ought in justice and equity to be deducted and abated therefrom by reason of the deficiency in the number of acres of land so actually occupied and owned by said Caroline as stated, and thereby offer to accept such conveyance, and to pay and secure to be paid, according to the terms of said agreement, such sum as the court should determine they are justly-and equitably bound to pay to the said heirs and legal representatives under said agreement, after making due allowance and abatement as stated; and demanded judgment accordingly.</p> <p>July 28, 1887, all the defendants except Fritz Furch&ná Mudo]ph Heliberg answered, which answer consisted largely of admissions and denials, and specifically denied any and all of the alleged false statements or representations, and expressed a willingness to convey the farm upon the performance by the plaintiffs of their agreement as contained in Exhibit A, and also pleaded said former judgment in bar of the action. May 81, 1887, the defendant Fritz Furoh demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action as to him, which demurrer the court sustained, and dismissed the action as to him.</p> <p>At the close of the trial, the circuit court, in addition to the facts stated, found as matters of fact in effect that July 11, 1885, said Caroline induced the plaintiffs to accept of and agree to said Exhibit A by the false statements and representations alleged as to the number of acres in the farm; that the plaintiffs believed and relied upon such statements and representations; that at that time she well knew that the farm only contained thirty-four and seventeen one-hundredths acres, and that such statements were made by her with intent to defraud and deceive the plaintiffs; that the improvements on the farm were of the actual value of $3,000 and no more, and the personal property thereon of the actual value of no more than $300.</p> <p>And as conclusions of law the court found that the plaintiffs were entitled to judgment adjudging that the defendants and each of them specifically perform the agreement of Exhibit A, and execute and deliver to the plaintiffs a warranty deed of the premises therein described, upon their paj7ment of $1,900 in cash, and the execution and delivery of a purchase-money mortgage to them upon said premises to secure the payment, in ten years from July 14, 1885, of $13,154.94, bearing interest at the rate of four and one half per cent, per annum; that the plaintiffs were entitled to an abatement or deduction from the price stipulated in Exhibit A of $5,145.06, by reason of the deficiency of fourteen and eighty-three one-hundredths acres in the land owned and occupied by said Caroline at the time of executing Exhibit A; and other matters appropriate thereto,— and ordered judgment according to such findings. From the judgment entered thereon the defendants appeal.</p> <p>They contended, inter alia, that the plea of former adjudication should have been sustained by the court. Pomeroy v. Croclcer, 3 Pin. 378; Parker v. Pomeroy, 2 Wis. 112; Wright v. Sperry, 25 id. 617; Hoonan v. Orton, 27 id. 300. When a question, whether of law or fact, is once decided, on demurrer or otherwise, between the same parties, it becomes res adjudioata, binding the parties and the court. Du Pont v. Davis, 35 Wis. 631; Downer v. Gross, 2 id. 371; Oole v. Olarke, 3 id. 323; Hungerford v. Gushing, 8 id. 324; Fastman v. Harteau, 12 id. 267; Reed v. Jones, 15 id. 44; Mowry v. First Hat. Banh, 66 id. 539; Fire Department v. Tuttle, 50 id. 552; Marshall v. Pinkham, 73 id. 401; Bank of Hew London v. Ketohum, 66 id. 428; Beloit v. Morgan, 7 Wall. 619; Seddon v. Tutop, 6 T. R. 607; Shepardson v. Gary, 29 Wis. 34, 43; Henderson v. Henderson, 3 Hare, 115; Birohhead v. Brown, 5 Sandf. 135. The assertion of quantity in a deed must yield to a description by metes and bounds or by name or numbers. When the quantity is mentioned in a description, without an express covenant that it contains that quantity, the whole -is considered as mere description. Stanley v. Green, 12 Cal. 164; Jackson v. Moore, 6 Cow. Y06; Hall v. Mgyhew, 15 Md. 551; Miller v. Bentley, 5 Sneed, 671; Wright v. Wright, 34 Ala. 194; Dalton v. Hast, 22 Tex. 133; Jennings v. Monks' Ex'r, 4 Met. (Ky.), 103; Llewellyn v. Jersey, 11 Mees. & W. 183; Jackson v. Defendorf, 1 Caines, 493; Snow v. Chapman, 1 Root, 528; Commissioner v. Thompson, 4 McCord, 434; TTfford v. Wilkins, 33 Iowa, 113; Hobinson v. Dime, 70 N. Y. 147; Drew v. Swift, 46 id. 207; Higginbotham v. Stoddard, 72 id. 94-99; Buffalo, N. T. (& H. H. Co. v. Stigeler, 61 id. 348; Lyman v. Gedney, 114 Ill. 388; Abbott v. Pike, 33 Me. 204; Heaton v. Hodges, 30 Am. Dec. 731, and note.</p> <p>To the point that respondents were entitled to a specific performance of the contract and to an abatement in price on account of the deficiency, they cited Powell v. Elliott, L. R. 10 Ch. App. 424; M'Counv. Delany, 3 Bibb, 46; Walling v. Kinnard, 10 Tex. 508; Hill v. Buckley, 17 Yes. 394-401; O'Connell v. Duke, 2d Tex. 299; Harrison v. Talbot, 2 Dana, 258; McKenzie v. LLesketh, L. R. 7 Ch. Div. 675; Blessing's Adm'rs v. Beatty, 1 Rob. (Ya.), 287; Harrell v. Hill, 19 Ark. 102; Couse v. Boyles, 4 N. J. Eq. 212; Melick v. Dayton,, 34 id. 245; Paine v. Upton, 87 N. Y. 327; Darling v. Osborne, 51 Yt. 148; Watson v. Hoy, 28 Gratt. 698; Camp v. Norfleet's Adm'x, 83 Ya. 380; Prich-ard, v. Evans, 31 W. Ya. 137; Mendenhall v. Steckel, 47 Md. 453; Seegar v. Smith, 78 Ga. 616; King v. Wilson, 6 Beav. 124; Conrad v. Schwamb, 53 Wis. 372, 378; Tyner v. Cotter, 67 id. 482, 488-9; Tyler v. Anderson, 106 Ind. 185; Howls v. Pollard, 6 Blackf. 108; Cravens v. Kiser, 4 Ind. 512; Thomas v. Beebe, 25 N. Y. 244; Mitchell v. Zimmerman, 4 Tex. 75; Oabot v. Christie, 42 Vt. 121.</p>

The following statement of the case was prepared by Mr. Justice Cassodav: The complaint alleges, in effect, that on Monday, March 21,1887, the plaintiff and one Schultz, for the consideration therein named, obtained an option in writing from one Col-well in these words: “Ashland, March 21, 1887.

The relators filed their petition in the circuit court for Rock county, praying that a writ of mandamus issue to the district board of school district No. 8 of the city of Edger-ton, in said county, commanding said board to cause the teachers in the public schools of that district to discontinue the practice, which had theretofore prevailed, of reading therein selections from the Bible.

The plaintiff, a real-estate broker in the city of Milwaukee, brought this action in the Milwaukee county court, against William W. Coleman, to recover compensation for services as such broker, alleged to have been rendered by him for said Coleman in 1875, in negotiating a purchase of certain real estate of one Jermain. The complaint alleges that he negotiated such purchase for the price of $20,000, and the defendant accepted a conveyance of the property at that price.

MandÁhus to State Treasurer and Secretary of State, The following statement of the case was prepared by Mr. Justice CassodAy : This is an application on behalf of the counties .of Bay-field and Eurnett for a writ of mandamus to compel the apportionment and payment of $47,207.09, now in the hands of the state treasurer, pursuant to ch. 22, Laws of 1879.

Eeplevin. The complaint, after alleging the incorporation of the defendant bant, proceeds as follows: “That the plaintiff, prior to the 2d day of July, 1888, had deposited moneys with said defendant, and had a savings account with said defendant, who then owed this plaintiff on said account the sum of $710.50, which amount was evidenced by an account or pass book of the defendant, which was designated as 1 Savings Account or Pass Book No. 25,898; ’ that said savings account…

APPEALS from the Circuit Court for Milwaukee County. The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: Augiost F. and Albert F. Gallun brought an action in the circuit court against Richard A. Seymour, Jr., to recover damages against him for an alleged breach of contract for the delivery of 1,000 cords of hemlock bark.

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>The following- statement of the case was prepared by Mr. Justice Cassoday:</p> <p>It appears from the record that on November 14, 1887, one Ií. G. Eisk, of Iron Mountain, Mich., made a draft, of which the following is a copy, to wit: “Iron Mountain, Mich., November 14, 1887. At ten days’ sight, pay to the order of G. A. Blesch, cash., five hundred dollars with current rate of exchange (including charges for collection and remittance), for value received, and charge to the account of H. G. FisK. To E. W. Grants Milwaukee, Wis. y ” that said Blesch was at the time cashier of the First National Bank of Menominee, Mich.; that said draft was thereupon discounted at said bank by said Fisk; that the said Blesch thereupon indorsed the same, and the said First National Bank of Menominee thereupon sent said draft, so indorsed, to the defendant bank for collection; that November 17, 1887, the defendant presented said draft to said E. W. Grant, who thereupon accepted the same by indorsement thereon in writing as follows: “ Accepted, November 17. Payable at First National Bank, Milwaukee. GeaNt CaRriage CoMPANT. E. W. GraNt, President;” that upon the maturity of the acceptance, November 30, 1887, the defendant bank credited the amount of the draft to the First National Bank of Menominee, and charged up such amount to the Grant Carriage Company, which had funds on deposit therein; that December 2, 1887, the deposit book of the Grant Carriage Company was written up, balanced, and the vouchers returned to said company; that the draft in question was among the vouchers so returned; that January 6, 1888, the books of said company were made to show such charge and transaction.</p> <p>It further appears that on January 28, 1888, the plaintiff was duly appointed a receiver of all the stock, effects, assets, goods, chattels, credits, things in action, franchises, privileges, and property belonging to, or in anywise appertaining to, said Grant Carriage Company, or in which it had any interest, and the said plaintiff thereupon duly qualified as such receiver; that the plaintiff thereupon brought an action against said H. G. Fisk in the' courts of Michigan, and attempted to recover the amount of said draft from him, but was unable to do so by reason of his impecunious condition; that he recovered a judgment thereon against Fisk, and the same proved to be worthless; and that June 5, 1888, the plaintiff made demand upon the defendant bank for the payment of said draft, and the same was refused.</p> <p>February 27, 1889, the plaintiff commenced this action against the defendant bank. Issue was joined therein, and the above facts, in effect, admitted either by the pleadings or orally, or proved. Upon the trial of this action the plaintiff tendered to the defendant an assignment of the judgment against Fisk. At the close of all the testimony the court directed a verdict in favor of the plaintiff and against the defendant for the amount of said draft. From the judgment entered thereon the defendant appeals.</p> <p>contended, inter alia, that inasmuch as the draft was drawn onE. W. Grant personally the acceptance was wholly irregular and unauthorized and the bank had no right to pay it out of the funds of the company. Daniels on Neg. Inst. secs. 412-485; Randolph on Comm. Paper, secs. 898, 171; Heenan v. Nash, 8 Minn. 407; Hice v. Ragland, 10 Humph. 545; School Hist. v. Oollins, 16 Kan. 406; Mare v. Charles, 5 Ellis & E. 978. The bank was required to take notice of the fact that the acceptance of the draft in this case was unlawful and in violation of the trust of the president. Claflin v. Farmers’ c6 C. Bank, 25 N. Y. 293; Alexander v. Gauldwell, 83 id. 480; West St. Louis S. Bank v. Shawnee Co. Bank, 95 U. S. 557; Anderson v. Kissam, 35 Fed. Rep. 699. Nor could knowledge of the transaction on the part of the bookkeeper be imputed to the officers or directors of the company. Hurley v. Watson, 68 Mich. 531; Merchants’ Bank v. Detroit IC. & C. Works, id. 620; McLellan v. Detroit File Works, 56 Mich. 582. Besides, ratification cannot be by the same parties who assume power to make the contract. Tracy v. Guthrie Co. Agr. Society, 47 Iowa, 27.</p>

The substance of the complaint is stated in the opinion. The plaintiff appeals from an order sustaining a general demurrer thereto. To race on a thoroughfare of a populous city is a “ wrongful” as well as a negligent act, and if the plaintiff is injured thereby he has his remedy. Add. on Torts, 511; Thorogood v. Bryan, 8 Com. B. 115; McDonald v. SneUing, 14 Allen, 290; Mayes v. M. O. R. Go. Ill U. S. 228.

The defendant company issued its policy of insurance, dated March 21, 1888, whereby it insured the plaintiff for three years against loss or damage by fire in the sum of $600, on a dwelling-house in Omro, and $100 on household furniture, etc., therein. The house was occupied by a tenant, exc'ept a room therein in which the plaintiff kept the insured personal property. These facts were known to the agent of the company who issued the policy.

<p>APPEAL from the County Court of Winnebago County.</p> <p>The following statement of the case was prepared by Mr. Justice Tatloe as a part of the opinion:</p> <p>This is an action to foreclose a mortgage. The action was commenced in May, 1884, to foreclose two mortgages,— one for $500, and one for $1,500, and interest from May 4 and J une 25,1888, respectively. The mortgages were given by Mol vina O. Boles and. bur husband, Joseph Boles. The property mortgaged was owned by Melvina O. Boles. Judgment was entered in the original action June 23,1884, for $2,000 principal, $164.33 interest, and $179.90 costs. On this judgment the mortgaged, property was sold March 11, 1886; but the court refused to confirm the sale, because no process had ever been served on Melvina O. Boles, and there was no appearance by her in the action. Melvina O. Boles died July 23, 1884, and was owner of the mortgaged premises at the time of her death. Upon her death the title vested in Joseph Boles, her husband. 'Joseph Boles died July 25, 1885, and devised the mortgaged property to the appellant.</p> <p>After the court refused to confirm the sale the respondent obtained an order from the court allowing her to amend her complaint and make Game L. Kirby, the appellant, a party defendant. The complaint was so amended, and the appellant appeared and answered the complaint in said action. The case was tried on the answer of Carrie L. Kirby, and judgment rendered August 11, 1889. The material part of the judgment reads as follows:</p> <p>“That the judgment heretofore rendered herein be so amended as to make the defendant Oarrie L. Kirby a party thereto, and that unless said Oarrie L. Kirby shall, within one year from the date hereof, pay the amount now due thereon, to wit, the sum of $3,489.81, with interest on the sum of $2,164.34 at eight per cent, per annum from date to the time of such payment, and in addition the amount of taxes paid by said plaintiff, with interest thereon at the rate of ten per cent, per annum from the date of such payment, with all costs and disbursements occasioned by the making of Carrie L. Kirby a defendant herein, then and in that case the said Game L. Kirby shall be barred and foreclosed of all lier right and interestío the premises described in the complaint, in like manner as if she bad been, originally made a. party to said judgment • and, in case said premises are not redeemed in one year from this date, that the same be sold as provided by law and the original judgment herein.”</p> <p>Exceptions were taken to the findings of the court and to the judgment by the appellant, Carrie L. Kirby.</p> <p>He contended, inter alia, that sec. 8161, R. S., does not apply to a case where the owner of the equity of redemption was not made a party, but only to cases where subsequent incumbrancers were omitted. And this case does not come within that section because Mel-vina O. Boles and her husband were named as parties defendant in the original summons and complaint and in the original judgment. She did not cease to be a party, because of the failure of service upon her, so as to bring her case within sec. 3161.</p>

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>The facts are sufficiently stated in the opinion. The defendant appeals from the judgment entered upon the special verdict in favor of the plaintiff.</p> <p>To the point that the United States is not liable for any damages which may have resulted to the plaintiff from the acts of persons who put stone, timber, or other material upon the dam in 1880-81, they cited 8axby v. M., S. (& L. R. Co. L. R. 4 C. P. 198; Coulson & F. on Waters, 658; Daniels v. Potter, 4 Carr. &P. 262; Gould on Waters, sec. 399; Wood on Nuisances, 867.</p> <p>As to the defendant’s liability for damages caused by the acts of other persons, they cited, besides cases cited in the opinion, Bish. Non-Cont. Law, secs. 965, 966; Nichols v. Minneapolis, 33 Minn. 430; King v. OshTcosh, 15 Wis. 517; Schmidt v. 0. & N. W. li. Co. 83 Ill. 405; Aurora v. Bitmer, 100 Ind. 396; Elliot v. Concord, 27 N. H. 208; Batty v. Dmbury, 24 Yt. 158.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This is an action upon a policy of insurance issued by the defendant company, for value received, to the firm of Stanhilber, Amos & Co., September 23, 1885, insuring the property therein described, against loss or damage by fire or lightning, in the sum of $2,500, from September 22, 1885, to October 1, 1890.

The proceeding was instituted in the circuit court by the respondent, Miohael Gill, under sec. 1852, R. S., to procure the appointment of commissioners to appraise his damages caused by the taking of certain of his real estate by the appellant, the Milwaukee de Lake Winnebago LtaiT/road Oomgoany, for the purposes of its railroad.

<p>APPEAL from the County Court of Bond du Lae County.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. The defendant appeals from the judgment entered on the verdict. cited, besides eases cited in the opinion, 2 Greenl. Evi. sec. 65; 3 id. sec. 95; Brown v. Gordon., 1 Grajr, 182; R. S. sec. 4511; State v. Snow, 18 Me. 346; State v. Dean, 71 Wis. 678; State v. Brown, 35 Am. Rep. 210; Comm. v. Runnels, 10 Mass. 518; Comm. v. Porter, 1 Gray, 480; Comm. v. Berry, 5 id. 94; Comm. v. Qibney, 2 Allen, 150; Whart. Cr. Law & Pr. sec. 16; Desty’s Cr.

<p>APPEAL from the Circuit Court for Fond du Lao County.</p> <p>The following statement of the case was prepared by Mr. Justice Oassoday:</p> <p>This is an action for the foreclosure of a mortgage executed by one Martin Reynolds, June 12,1874, to his daughter, one Sarah Clark, then wife of the plaintiff, for the sum of $300, on the premises described. The answer, in effect, denied the assignment of the note and mortgage to the plaintiff by Sarah Clark, and alleged facts showing the ex-tinguishment of the mortgage during her life-time.</p> <p>Upon the trial the court found, as matters of fact, in effect, that said Martin Reynolds, soon after making said mortgage, and in 1874, died intestate, seised and possessed of said mortgaged premises; that at the time of his death he left, him surviving, five sons and three daughters, including the said Sarah Clark; that upon his death each of said several sons and the two daughters united in deeds wherein and whereby each and all of them quitclaimed their several interests in and to said mortgaged premises to said Sarah Clark, who thereby became the owner in fee-simple of said mortgaged premises, and remained such owner until her death; that such deeds and transfer to her were all made during the years 1874, 1875, and 1876, inclusive; that said Sarah Clark continued to live with the plaintiff as his wife until in 1884, when she died intestate; that after acquiring the deeds of said mortgaged premises, as stated, she remained in possession thereof, as owner, until the time of her death; that the several defendants in this action are infants, and children of the said Sarah Clark by the said plaintiff; that no administration has been had upon the estate of said Sarah Clark;- that the plaintiff is not now, and never was, the lawful owner and holder of said note and mortgage; that they were never transferred to the plaintiff at any time.</p> <p>And, as conclusions of law, the court found, in effect, that the defendants were entitled to judgment dismissing the complaint; that there was no transfer of said note and mortgage to the plaintiff; that said mortgage was merged in said Sarah Clark by the conveyance of said mortgaged premises to her by said heirs at law. of said Martin Reynolds; that the defendants were entitled to judgment, with costs and disbursements of the action.</p> <p>From the judgment entered upon such findings the plaintiff appeals.</p>

Action for a breach of promise to marry. The plaintiff appeals from an order setting aside the service of the summons and complaint, and vacating an order of arrest. The facts will sufficiently appear from the opinion.

APPEAL, from the Circuit Court for Sheboygan County. This action was brought under sec. 3180, R. S., as amended by ch. 190, Laws of 1882 (2 S. & B. Ann.

<p> Defective service: General appearance: Notice of retainer and of appeal. </p> <p>A notice of retainer, given by the attorney of one of several defendants against whom judgment has been rendered, stating that he appears specially “for the express and sole purpose of taking an appeal from the judgment,” and a notice of appeal from the judgment barring and foreclosing said defendant’s right, “and from each and every part of said judgment, and from the whole thereof,” constitute a general appearance in the action.</p>

<p> Municipal corporations: Injury from defective street: Negligence of third persons: Primary liability: Amendment of charter by general law: Laches in bringing suit. </p> <p>1. The charter of Sheboygan (Laws of 1874, ch. 236, sec. 24) provides that where a person has been injured by reason of a defect in a street caused by the negligence of another person, the city shall not be liable until all legal remedies against such other person have been exhausted. A subsequent general act (ch. 471, Laws of 1889) provides that whenever any such injury “has happened or shall happen ” the negligent person shall be primarily liable, but the city may be sued in the same action, execution against the city to be stayed, however, until an execution against the party primarily liable has been returned unsatisfied. Held:</p> <p>(1) The act of 1889, though it does not in terms amend the city charter, applies to injuries happening therein.</p> <p>(2) It is retroactive and applies to an injury for which suit was pending when it was enacted; but since it affects merely the remedy it is not invalid on that ground.</p> <p>2. Under the act of 1889 the city is not merely a guarantor of the col-lectibility of the damages from the wrong-doer, and is not relieved from liability by a delay of two years in bringing an action against him. McFarlane v. Milwaukee,, 51 Wis. 695, distinguished.</p>

<p> Promissory notes: Indorsement by strangers: Agency: Demand and notice of dishonor: Married women: Setoff. </p> <p>1. The undisputed testimony of two of several indorsers of a promissory note, that they all indorsed it before delivery for the purpose of giving credit to the maker, is sufficient to show that they did not sign as second indorsers, on the responsibility of the payee, but are liable to the payee as indorsers.</p> <p>3. Where the bank holding a note for collection sends it for the same purpose to the bank where it is payable, the latter is authorized to demand payment and give notice of dishonor.</p> <p>3. In an action by a married woman upon a note made payable to her, evidence of offsets against her husband is inadmissible, even if he was the owner of the property in payment for which the note was given, where such offsets are not pleaded and the husband is not a party to the action.</p>

<p>APPEAL from the Circuit Court for Milwauhee County..</p> <p>' This action was brought to recover damages for personal injuries alleged to have been received by the plaintiff through the negligence of the defendant.</p> <p>The complaint alleges that the defendant company is a corporation and a common carrier by water on the Great Lakes; that it operates a number of steamboats thereon, and occupies a dock and warehouse in the city of Milwaukee for the landing and storage of freight; that in September, 1888, one of its steamboats, known as the “Hudson,” having on board freight to be left at Milwaukee, landed at such dock, and the plaintiff, who is. a stevedore, was employed by the defendant to aid in unloading deck freight therefrom; that be commenced work about 11 o’clock, p. M., and continued to work until injured as hereinafter stated, which was at about 1:30 a. h., at which time, and while prosecuting such work, and when he was necessarily and carefully passing along said deck, and without any fault or negligence on his part, he fell through a large, open hatchway a little forward of the middle of the deck, which the defendant had left open, unlighted and unprotected, and thereby received the injuries complained of; that the hatchway was not then in use, and it is the custom of steamboats' like the Hudson to keep their hatchways covered when not in use, and also, when the same are open at night, to keep lights on each side thereof, so arranged as to disclose such hatchways to persons passing along the deck; that ordinary care requires they should be kept thus closed, or lighted if open; and that the defendant was guilty of negligence in thus allowing the hatchway to be open, and, it being open, in not having it properly lighted so that the plaintiff might have seen that it was open and thereby avoided the injury.-</p> <p>The answer denies seriatim most of the material allegations of the complaint, but admits that “ when such hatches are left open it is the custom of such steamboats to provide and keep burning lamps or lights about such hatch, so arranged that they disclose such hatchway.” It alleges that the hatchway through which the plaintiff fell was so lighted at the time.</p> <p>After a jury had been impaneled and sworn it was admitted on behalf of defendant that plaintiff was hired by the mate of the Hudson to assist in discharging cargo on the night of the accident, and that the mate was authorized by defendant to employ stevedores for such purpose. Counsel for plaintiff then made quite a lengthy opening address to the jury, stating the facts which he expected to prove. He then called the plaintiff as a witness in his own behalf, who was sworn, and a question propounded to him. Thereupon counsel for the defendant objected to the introduction of any evidence under the complaint and the opening statement of counsel, for the reason that said complaint and statement do not state facts sufficient to constitute a cause of action against the defendant. The court sustained the objection, and entered an order dismissing the complaint. Judgment was thereupon entered for the defendant, dismissing the complaint, with costs. The foregoing proceedings and ruling are recited therein. The plaintiff appeals from the judgment.</p> <p>To the point that upon the facts alleged defendant was not negligent, they cited Dwyer v. Nat. Steamship Co. 4 Fed. Rep. 493; The Gladiolus, 22 id. 454; The Carl, 18 id. 655; Caniff v. Blanchard Nav. Co. 66 Mich. 638; Wilkinson v. Fairrie, 1 Hurl. & 0. 633; Seymour v. Maddox, 16 Q. B. 326.</p>

<p> Contracts: Construction of sewer for city: Modification of plan: Action for damages: Pleading: Waiver. </p> <p>1. Though a contract with a city to construct a sewer provides that the work shall be done to the satisfaction of the board of public works, the contractor need not allege that the work was so done, in an action against the city to recover damages for its refusal to permit him to perform a part of the work.</p> <p>2. A provision in the contract that the board of public works shall adjudicate the amount earned by the contractor, does not necessitate an adjudication as to his damages by reason of a breach of the contract by the city.</p> <p>3. It being alleged in the complaint that the city modified the plans and specifications which were a part of the contract, and thereby shortened to the extent of 176 feet the sewer which the plaintiff had agreed to construct at a certain price per foot, it will not be presumed, on demurrer, that the city had authority to make such change, or that it was a reasonable variance from the plans.</p> <p>4. A waiver of his rights under the contract as originally made will not be presumed from the mere fact that the plaintiff continued work after such modification.</p>

<p>REPORTED from the Circuit Court for Ashland County.</p> <p>The defendant was tried and convicted on an information charging “ that on the 26th day of November, A. D. 1889, at the town of Yaughn in said county of Ashland,” he “ did unlawfully and feloniously resort to, frequent, and become an inmate of a house of ill fame resorted to for the purpose of prostitution and lewdness, then and there situate, against the peace and dignity of the state of 'Wisconsin.” Four questions have been reported to this court for determination. Two of them are stated in the opinion. The others are as foliows: “3. Should the motion in arrest of judgment be granted and defendant discharged? 4. Should the motion made to set aside the verdict have been denied?”</p>

<p>Application for a Writ of Habeas Corpus.</p> <p>The facts are stated in the opinion.</p> <p>They contended, inter alia, that for judicial purposes the municipal court of Ashland county was not fully7- organized until a judge of that court, elected as provided in the act creating the court, took his office and qualified on the first Monday in January, 1890. Until then the act was not completely operative and there was no office of judge of said court which any one had a right to exercise judicial functions in. There was no office de jure. State ex rel. Attiy Gen. v. Messmore, 14 Wis. 163, I'll; Const, of Wis. art. YII, sec. 2; Fenelon v. Butts, 49 Wis. 342, 347; Chicago c§ N. W. R. Co. v. Langlade Co. 56 id. 614. There can bo no officer de facto unless there is an office de jure. Van Slylce v. Trem-pealeau Co. F. M. F. Ins. Co. 39 Wis. 390, 396; Cole v. Black River Falls, 57 id. 110, 113; Forty v. Paine, 62 id'. 154, 161; Baker v. State, 69 id. 32, 37.</p>

<p>Application for a Writ of Habeas Corpus.</p>

<p>ApplioatioNS for Writs of Hateas Corpus.</p>

<p> Appealable order: Costs: Printing case. </p> <p>Upon the dismissal of an appeal from an order which was not ap-pealable, no costs for printing the case can be taxed.</p>

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>May 29, 1888, C. EL Hammersloy & Co. made a general assignment to the defendant Bernhard, for the benefit of their creditors. The assignee made and executed his bond, and the same was approved May 30, 1888. June 2, 1888, this action was commenced by the plaintiff, a corporation of the state of Illinois, against the assignors, and the garnishee papers were served on that day upon the assignee. July 2T, 1888, judgment was entered in the principal action against the assignors.</p> <p>On the issues betrveen the plaintiff and the garnishee a trial was had by and before the court without a jury, and the court found as matters of fact, in effect, that such assignment was made May 29, 1888, and acknowledged on that day before a notary public; that in the execution of said assignment and the filing of the same and the inventoiy the statutes were complied with, except that the assignee’s bond was by him and his sureties executed, and such sureties therein justified before a court commissioner, on May 30, 1888; that the affidavit as to the nominal value of the assets was made before said commissioner on that day, on the reverse side of the bond; that upon said bond was indorsed in writing an approval of the same, both as to the form and the sufficiency of the sureties, by said commissioner, May •30, 1888; and that the same was filed on that day with the clerk of the circuit court by said commissioner; that the ■consent in writing of said assignee to take upon himself the duties of such trust was dated May 30, 1888; that the Certificate of said commissioner to the copy of the assignment was made on that day; that such bond and copy of ■assignment, with indorsements and certificates, were filed with the clerk of the court May 30,1888; that by virtue of ■said assignment the assignee took possession of the assignor’s stock, May 31,1888; that said stock ivas inventoried at the nominal value thereof, and such inventory filed with ■the clerk of said'Court June 5, 1888; that no other bond was ever executed or relied upon except the one stated; that this action was commenced and judgment against the principal defendant taken as stated.</p> <p>And as conclusions of law the court found, in effect, that said assignment was void upon its face; that said assignee could not hold the property of the firm thereunder; that the plaintiff was entitled to judgment against the garnishee; and the same was ordered accordingly. From the judgment entered thereon the garnishee appeals.</p> <p>To the point that legal holidays are non-juridical days only when made so by statute, and only so far as they are made so, they cited, besides cases cited in the opinion, Pfister v. State, 81 Ala. 432; State v. Riehetts, 74 N. C. 187; Hamer v. Sears, 81 Ga. 288; Slater v. Scliach, 41 Minn. 269; Bear v.Koungman, 19 Mo. App. 41; Dunlap v. State, 9 Tex. App. 179.</p> <p>To the point that a legal holiday is dies non juridieus, they cited Lampe v. Manning, 38 Wis. 674; Poor v. Beatty, 78 Me. 580; Weil v. Geier, 61 Wis. 414; Gladwin v. Lewis, 6 Conn. 49; Phelps v. Sill, 1 Day, 315; In re Kindling, 39 Wis. 58; Matter of Graduates, 11 Abb. Pr. 301; Peoples. Gordon,'§ Cal. 235; People ex rel.Pe Fries v. Supervisors, 10 id. 344; Miller v. Sacramento, 25 id. 97; In re Cooper, 22 N. Y. 67, 82; Polin v. State, 14 Neb. 546; Farwell v. Webster, 71 Wis. 485; People v. Bristol c& P. Ttornpilce Co. 23 Wend. 227; People v. Collins, 19 id. 58; Van Veahten v. Paddoclc, 12 Johns. 178; State v. Green, 37 Mo. 466; Oalcs v. Lodgers, 48 Cal. 197.</p>

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

<p> Action to establish validity of lien: Counterclaim. </p> <p>In an action under sec. 31S6, R. S., to establish the validity of a lien upon land as against the claim of the person in possession, a cause of action in favor of the defendant for the establishment of his title as against the plaintiff’s lien may be pleaded as a counterclaim.</p>

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

<p>APPEAL from the Circuit Court for Crawford County.</p> <p>This is an action brought to recover compensation for two horses of the plaintiff which escaped from a pasture adjoining the defendant’s railroad, over and through the gate of a farm crossing, and went upon the track, and were there run against and killed by the locomotive of a passenger train. It is alleged that the gate was defective.</p> <p>The defendant’s railroad runs north and south across the farm of one Hudson, and the pasture from which the horses escaped, and into which they were turned with the consent of Hudson, the owner, is west of and adjoining the railroad. Hudson’s residence is on the east side of the track. The railroad right of way is fenced on both sides through Hudson’s land, and near his residence there are gates in either fence for a farm crossing between the pasture and the portion of the farm east of the track. The gate in the west fence leading into the pasture consisted of four boards placed horizontally, with suitable spaces between them, and is described by the plaintiff as “an ordinary farm gate, such as farmers frequently use,— these gates with boards that slide on the end.” It did not swing on hinges, but at its pivotal end — which was the south end thereof — it swung upon boards fastened to two posts a short distance apart, the upper board of the gate and the one next the bottom board thereof resting on the boards so fastened to the posts. It opened into the pasture, and when closed rested against a post at the north end thereof, which prevented it from opening towards the railroad. In such post, and on the west or pasture side of it, were driven, originally, two pieces of f-inch iron for fastenings. About two inches of each piece was bent upwards so as to form a hook. These hooks were so located that when the gate wTas properly closed the upper board rested on the upper hook, and the board next the bottom rested on the lower hook. This placed the gate level, and made it a little more than four and one-half feet high.</p> <p>The gate remained in this condition until a short time — perhaps twenty days — before the night the horses escaped from the pasture, when, either by the action of high water or by reason of tightening the wire fence attached to the north post, that post became turned so that the fastenings ■were on the north instead of the west side thereof, and hence were useless. Hudson thereupon drew the lower fastening, and drove it into the west side of the post in its former position, but did nothing with the upper fastening. "When in this position the gate could be closed as before by raising it so that the board next the bottom would rest on the lower hoolr. This would leave the gate level, and at the height above mentioned. Hudson and family frequently passed through this gate to and from the pasture, and some of his family did so on the evening the plaintiff’s horses were turned into the pasture. The gate was usually left at night in the position just indicated, but during the day the board next the top board, instead of the one next the bottom, was allowed to rest on the hook. In that position the north end of the gate was only about three feet eight inches high • — ■ the south end remaining at the original height. On the evening in question, however, the gate was left with the board next the top resting on the hook. On the following morning plaintiff found his horses on the railroad track, and, -while endeavoring to get them off, a locomotive attached to a passenger train running north ran against and killed them. An inspection of the ground and tracks of the horses satisfied all parties that one of the horses jumped the1 gate at the north end thereof, and in doing so tore the gate loose from the hook and partly opened it, and the other horse went upon the track through the opening. The foregoing facts are not controverted.</p> <p>At the close of the plaintiff’s testimony, and again at the close of all the testimony in the case, defendant’s counsel moved for a nonsuit. Both motions were denied. No questions arise upon the pleadings or the admission or rejection of testimony. The only negligence imputed to the defendant is that the gate was not in a proper condition at the time the horses escaped from the pasture-over or through it and went upon the railroad track. The court submitted two questions of fact to the jury. These are: (1) Was the gate a proper one, and provided with suitable fastenings, so that it could be hung at a proper height? and if not, (2) Was the killing of the plaintiff’s horses the direct result of a defect in the gate? The jury returned a verdict for the plaintiff, assessing his damages at $250. Counsel for the defendant moved for judgment non obstante 'veredicto, which motion was denied. lie then moved for a new trial, which motion was also denied. Judgment for the plaintiff was thereupon entered, pursuant to the verdict. The defendant appeals from such judgment.</p>

<p>APPEAL from the Circuit Court for Iowa County.</p> <p>The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion:</p> <p>The facts which may be said to be stated in the complaint in this action are the following: That the plaintiff is the widow and administratrix of the estate of James M. Lockwood, deceased, who died intestate and without having disposed of his interest in the mortgage mentioned in the complaint; that said Lockwood, in his life-time and at the time of his decease, was the part owner of a mortgage executed bygone Emily R. Hooe to said Lockwood, and that one Warren E. Gates was also a part owner of said mortgage. It may also be fairly inferred from the complaint that in the life-time of said Lockwood a controversy had arisen between said Lockwood and Gates as to their respective rights and interests in said mortgage, and that some kind of an action had been instituted in the circuit court of Iowa county for the purpose of determining their respective rights in and to the money secured by said mortgage; that Lockwood, Gates, and the mortgagor, Hooe, were parties to such action; that it was adjudged and determined in said action that Lockwood’s interest in said mortgage was $624.74; and that the interest of Gates was the sum. of $1,849.54. It may also be fairly inferred, although not clearly stated, that in said action for determining the rights of said parties in. and to said mortgage one Orville Strong was appointed by the court receiver for the purpose of collecting the amount due on said mortgage for the benefit of the parties interested therein, and that by virtue of such appointment said Orville Strong, as such receiver, commenced an action to foreclose such mortgage; that in said action the receiver obtained a judgment of foreclosure against the mortgagor; that it was determined in such foreclosure action that the said Lockwood’s interest in said mortgage, at the time judgment was rendered therein, was the sum of $524.19, and the interest of Gates was $1,194.54; and that judgment was rendered in favor of the receiver for these amounts, with interest added.</p> <p>It is further alleged in the complaint that Reese & Carter acted as attornej^s for the receiver in said foreclosure action, and that by virtue of said foreclosure judgment the mortgaged premises were duly sold by the sheriff of said county on the 11th day of June, 1881, and were bid off by Samuel Reese, one of the firm of Reese & Garter, for the sum of $4,165.44; that afterwards, and on the 11th of June, 1881, Reese & Carter acknowledged the receipt of $315.44, costs of said action, from Thomas Kennedy, sheriff of Iowa county, and on the 20th day of June they acknowledged the receipt from said sheriff of the further sum of $3,822.69, the amount of the foreclosure judgment, with interest. The complaint further states “ that as a matter of fact the said Reese & Garter did not receive any sum whatever from said sheriff, but that said Reese bid in the mortgaged property to satisfy the debt due on said mortgage, and that he so bid it in as attorney for the receiver, in trust for said Lockwood and Gates, and took a sheriff’s deed of the premises described in the mortgage,” giving a full description of the mortgaged property described in said sheriff’s deed.</p> <p>The complaint then concludes as follows: “Although demand has been made upon said Reese to convey or account for the property so held in trust by him for the legal representatives of James M. Lockwood, he refuses and neglects so to do. Wherefore the plaintiff prays that said Samuel Reese may be compelled to execute to this plaintiff a proper deed of conveyance of such share of the mortgaged premises as will satisfy the said sum of $524.74, and interest at the same rate as computed in augmenting the original indebtedness to $3,822.69, which includes the $524.74 and interest, and also interest from the date of sale to said Reese at the rate of seven per cent, per annum, and for such other and further relief as to the court may seem just and equitable.”</p> <p>To this complaint the defendant demurred, alleging the following causes of demurrer: “(1) That the plaintiff has not legal capacity to sue; (2) that there is a defect of parties plaintiff and defendant; (3) that several causes of action have been improperly united; (4) that the complaint does not state facts sufficient to constitute a cause of action; (5) that the action was not commenced within the time limited by law.” The plaintiff moved the court for an order striking out the demurrer as frivolous. The circuit court granted the motion, with leave to the defendant to answer within forty days, upon the payment of costs of the motion. From this order the defendant appeals to this court.</p>

<p>APPEAL from the Circuit Court for Iowa County.</p> <p>Action to recover the purchase price of a harves'ter alleged to have been sold by the plaintiff to the defendants. The facts will sufficiently appear from the opinion.</p>

<p> Unlawful detainer: Landlord and tenant: Parent and child. </p> <p>Pursuant to an understanding -with his father a minor son devoted his wages to the purchase of a home for his parents. The last payment was made, and a conveyance executed to the son, just after he became of age. The parents had previously gone into possession under an oral agreement with the son that they should occupy the premises as a home, free and without any reservation of rent, during their lives; and the father afterwards made valuable improvements. Held,, that the conventional relation of landlord and tenant did not exist between the son and his father, and the former could not remove the latter by an action for unlawful de-tainer.</p>

<p>APPEAL from the Circuit Court for La Orosse County.</p> <p>Action to set aside certain conveyances and transfers of property by a debtor to his wife. The allegations of the complaint will sufficiently appear from the opinion. The defendants demurred generally to the whole complaint, and to each separate cause of action stated therein, and appealed from an order overruling the demurrer.</p>

<p> Railroads: Fires set by negligence; Contributory negligence: Defects in locomotive: Court and jury. </p> <p>1. An unnecessary delay of ten or fifteen minutes by a land-owner in attempting to extinguish a fire set by a passing locomotive and which destroyed his property, will not defeat a recovery if he could not have prevented the injury even if he had acted with the utmost promptness.</p> <p>2. The trial court having held it to be conclusively proved that a locomotive which started a fire along a railroad track was properly operated, and there being evidence tending to show, among other things, that the ash-pan was too short — the effect of which was to facilitate the dropping of live coals upon the track,— and that the engine had set three other fires while running a little more than a mile from the one in question, it is held that the question whether the engine was or was not in a reasonably safe condition was properly submitted to the jury.</p>

<p> Replevin: Justification: Agency: Possession. </p> <p>1. In replevin the fact that the defendant took and detained the prop. erty as agent of another is no justification unless he shows a right thereto in his principal.</p> <p>2. An action of replevin in the cepit will lie against one who has unlawfully taken into his possession the property of another, although at the commencement of the action the possession may not be in the defendant.</p>

<p>APPEAL from the Circuit Court for Marathon County. .</p> <p>The case is stated in the opinion.</p> <p>To the point that an act repealing or modifying a remedy does not af-feet pending actions, they cited, in addition to cases, referred to in the opinion, Oaldand v. Whiffle, 44 Cal. 303; Gorsuth v. Butterfield, 2 Wis. 237; Bailey v. Mogg, 4 Denio, 60; Sedg. Stat. & Const. Law, 132; Knox v. Baldwin, 80 N. Y. 610; JDanforth v. Smith, 23 Yt. 247.</p>

<p>APPEAL from the Circuit Court for Portage County.</p> <p>Ejectment. The following statement of the case was prepared hy Mr. Justice Cassoday:</p> <p>The facts in this case are mainly undisputed and to the effect that in the year 1858, and prior thereto, Nicholas Eiden, Sr., the father of both the plaintiff and the defendant, was the owner and in possession of the N. E. J of the S. E. i of section No. 7, in township No. 24 N. of range 9 E.; that the east line of that forty acres was at the time, and ever since has been and is now, the line of a public highway running north and south; that, April 16, 1858, said Nicholas, Sr., conveyed to the defendant thirty acres off from the east side of said forty-acre lot, which thirty acres was to be next and adjoining said highway; that soon after the delivery of that deed to the defendant he and said Nicholas, Sr., caused said thirty acres to be surveyed,, and then located and established the west line of said thirty acres, and upon said line so established by mutual agreement a line fence has been maintained by the defendant and said Nicholas, Sr., and his grantee, from that time until the commencement of this action, as the west line of said thirty acres; that in the spring of 1859 the defendant went to California, and there remained until in the year 1868, when he returned and went into the occupancy of said thirty acres; that during his absence the whole forty acres were occupied by said Nicholas, Sr.; that October 5, 1872, the said Nicholas, .Sr., and wife conveyed to the plaintiff and another brother ten acres to be taken off the west side of said forty-acre lot; that October 5, 1880, said other brother sold and conveyed to the plaintiff his interest in said ten acres.</p> <p>July 6,1887, the plaintiff commenced this action of ejectment for the following strip of land in said forty-acre lot: Commencing at a point 14 chains and 79 links west from the section line on the north line of said forty acres; thence running south on a line parallel with the east line of said section to the eighth line of said section; thence west on said eighth line about four rods; thence north on aline parallel with the east line of said section to the quarter line of said section; thence east on said quarter line about four rods to the place of beginning.</p> <p>The answer consists of denials and adverse possession under said deed, and the various statutes of limitation, and the establishment of the line between the thirty acres and the ten acres as stated, and asks a reformation of the deed.</p> <p>A jury being waived, the cause was tried by the court, and at the close of the trial the court found, in addition to the facts stated, in effect, that the defendant had been in the adverse possession of the strip of land about four' rods wide, described in the complaint, from the spring of 1858 until the time of the commencement of the action and since; that the defendant had been in such adverse possession under a claim of title, exclusive of any other right, founded upon a written instrument, to wit, said deed from his father; that all the allegations of the answer were true. And as conclusions of law the court found that the cause of action set out in the defendant’s answer as a counterclaim was barred by sec. 4221, R. S.; that the defendant was the owner and entitled to the possession of the strip of land, about four rods wide, described in the plaintiff’s complaint; that the defendant was entitled to judgment against the plaintiff for his costs and disbursements in this action, and ordered judgment accordingly. From the judgment entered upon said findings and in accordance therewith the plaintiff appeals.</p>

<p> Removal of causes: Waiver: Jurisdiction: Appealable order. </p> <p>1. A party may, in the suit itself, waive his right to a removal thereof from the state to the federal court; and, upon application made before a transcript of the record has been sent to the federal court, he should be allowed to withdraw his petition and bond for removal. Such waiver restores the jurisdiction of the state court.</p> <p>2. An order denying the application to withdraw the petition and bond in such a case affects a substantial right and is appealable.</p>

<p> Tax sales: Redemption: “Marathon county lands:” Statute vesting title in county: Irregularities in tax proceedings. </p> <p>1, Lands in Marathon county, subject to taxation, were sold for taxes and bid in by the county in each of the years 1863 to 1866 inclusive, and were not redeemed within two years after the enactment of ch. 133, Laws of 1866. Held, that under that act the title absolutely vested in the county. Baldwin v. Ely, 66 Wis. 171, followed.</p> <p>3. The title to such lands having “ absolutely vested in the county,” under the act of 1866, the original owner was barred thereby from controverting such title on the ground of prior irregularities in the tax proceedings; and ch. 301, Laws of 1885, gave him no such right.</p>

The defendant, the Northwestern Masonic Aid Association, issued to Carl Ilanf a certificate of life insurance in class No. 4, in a sum equal to $1.20 for each member of such class, but not to exceed $2,500. The certificate bears date April 27, 1881. Carl Ilanf died May 2, 1888. This action was brought by his children, who are named in his application for the insurance as the 'beneficiaries thereof.

Replevin. There was a verdict for the defendant, and from the judgment entered thereon the plaintiff appeals. The following statement of the case was prepared by Mr. Justice TayloR as a part of the opinion: The plaintiff in this action is the assignee of one L. G. Tsorgan by virtue of a voluntary assignment made by said Horgan for the benefit of all of his creditors, and claims the right to the property in question by virtue of such assignment.

The case is sufficiently stated in the opinion. They contended, inter alia, that the plaintiffs have not legal capacity to sue. If the corporation has a right of action it must sue in its corporate name. R. S. secs. 1748, 3204; Barbour, Parties, 59, sec. 7; Binney v. Plumley, 5 Vt. 500; Ghar-boneaa v. llenni, 24 Wis. 250.

The following statement of the case was prepared by Mr. Justice Cassoday: November 26,1889, the relator filed his petition in the circuit court for Milwaukee, county, stating, in effect, that May 20, 1889, Edward Sanderson, then a resident of said county, died intestate, leaving him surviving a widow and four children, including the said relator, his heirs at law; that said intestate was the owner, at the time of his death, of real estate in said county of the value of…

<p>State ex rel Sanderson v. Mann, ante, p. 469, followed.</p>

Action to recover damages for personal injuries alleged to have been caused by the defective condition of a sidewalk in the defendant village.' The facts will sufficiently appear from the opinion. The plaintiff appeals from a judgment in favor of the defendant.

The plaintiffs brought an action against Edwin S. Wheeler and another, constituting the firm of E. S. Wheeler & Co. of New Haven, Connecticut, upon an account, and garnished the John Pritzlaff Hardware Company and the William Frankfurth Hardware Company, of Milwaukee, Wisconsin.

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

When this action was brought, and before that time, the plaintiffs were partners under the firm name of S. Gf. Cook & Co., and the defendant was, at the same time, sheriff of Bayfield county in this state. The action is to recover the possession of a lot of logs which the plaintiffs claim to have purchased of Bood & Maxwell, the owners thereof, on October 17, 1887, the same then being in the boom of Bood & Maxwell at Washburn in said county.

The following statement of the case was prepared by Mr. Justice TayloR as a part of the opinion: The material facts in this case are as follows: In January» 1887, R. Goldston, a married woman, set up the business of a dry-goods merchant in Fond du Lac. The business was conducted mainly by Albert Goldston, her husband, as her general agent.

The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. To the point that the declarations of the engineer were not admissible as part of the res gestee, they cited Prideaux v. Mineral Point, 43 Wis. 513; Viclcs-burg té M. P. Go. v. O'Brien, 119 U. S. 99; Chicago W. D. P. Go. v. Beclcer, 128 Ill. 545; Williamson v. G. P. Go. 30 Am. & Eng.

<p>APPEAL from the Circuit Court for Juneau County.</p> <p>The following statement of the case was prepared by Mr. Justice Gassoday :</p> <p>This action was commenced in April, 1889, to restrain the defendant county and its treasurer from the sale of the plaintiff’s lands described for the nonpayment of taxes assessed thereon in the year 1888, and to have the same declared illegal and void, and to remove the same as a cloud on the title. The cause of action alleged is, in effect, that the assessor, for the purpose of throwing an undue amount of the taxes upon the plaintiff and other nonresident owners of unimproved land, made an unfair and fraudulent assessment in that year; that, while the plaintiff’s lands were not valued above their actual worth, they were assessed relatively four or five times higher than the improved land of resident owners of said town; that such discrimination was not made through any mistake or error of judgment of said assessor, but was done purposely, corruptly', and fraudulently; that the board of review, and each and all of its members, knew that the lands in said •town were assessed at far less than their value, and were unequally and unfairly assessed as stated, but that such board made no correction in the plan of assessment, but approved the same as made by the assessor; that, in consequence of such fraudulent and unjust assessment, the plaintiff was and is wholly unable to ascertain what would be the amount of her taxes upon a fair assessment.</p> <p>The answer consists of certain admissions, and alleges, in •effect, that until a short time prior to May 1, 1888, said lands were covered with valuable timber, which made such lands equal in value to any lands in said town; that the removal of said timber red uced the value of said lands, but that neither the fact of the removal of said timber, nor the effect of such removal upon the value of said lands, were known either to the assessor or the other members of said board of review in the year 1888; that the plaintiff’s said lands, as well as the other lands mentioned in her complaint, were assessed in 1888 at the same valuation at which they had been ■ in the year 1887 and other years prior thereto; that said board of review was not requested in the year 1888 to reduce the assessed valuation of said lands, nor was the attention of said board or any of its members in any way called to said lands or any of them, nor to the value thereof, nor did the members of said board or any of them know that such timber had been removed from said lands, or that said lands were assessed at a higher proportionate valuation than the other lands in said town; that the assessor of said town did his duty as such assessor honestly and impartially, and intended to assess all the property liable to assessment in said town at the same proportionate value. The answer expressly denies that the assessor made a fraudulent assessment, or that he intended to assess the plaintiff’s said lands at a higher proportionate value than the other property liable to assessment in said town, and further denies each and every allegation, statement, matter, and thing in said complaint contained, not therein admitted or otherwise denied, qualified, or explained.</p> <p>To that answer the plaintiff demurred on the ground that it appeared upon the face thereof that it did not state facts sufficient to constitute a defense to said action. From the order sustaining such demurrer the defendants appeal.</p>

<p> Equity: Accounting: Landlord and tenant: Tax titles: Possession fraudulently obtained from lessee of owner: Limitation of actions. </p> <p>1. The complaint alleges that, while the plaintiffs were all minors, living in another state, and ignorant that there were any unpaid taxes upon their lands in this state, the defendants, knowing those facts, procured a tax deed of said lands and obtained possession thereof by a collusive and fraudulent agreement with the plaintiffs’ lessee; that the defendants afterwards procured other tax deeds of the lands; that they had rented the premises to other persons, and during the first two years after taking possession had received in net income from the premises more than enough to repay the amount paid by them for the tax deeds, with interest, and for current taxes. One of the plaintiffs is still a minor. The prayer is for an accounting, for the cancellation of the tax deeds, etc. Held, that the action was maintainable in equity, and was not merely an action to redeem lands sold for taxes.</p> <p>% When the defendants obtained possession by said fraudulent agreement they became tenants of the plaintiffs and estopped to deny their title; and their possession as tenants-being the possession of the plaintiffs, during its continuance the statute of limitations ran against, not in favor of, the tax deeds.-</p> <p>3. The result is the same whether the life estate of the plaintiffs’ father in the premises, as tenant by the curtesy, to which the plaintiffs’ rights were subject, had or had not been surrendered to them.</p>

<p>APPEAL from the Circuit Court for Marquette County.</p> <p>The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion:</p> <p>Action to recover damages for alleged false imprisonment. On the trial in the court below the plaintiff recovered, and from the judgment rendered in his favor the defendants Martha M. Turner and David Turner appeal to this court.</p> <p>Martha E. Turner in her answer denied malice and participation in the arrest made, setting forth that she simply made her complaint to the justice who issued the writ, and that in so making complaint she acted upon the advice of the district attorney, and that such attorney drew the complaint. On the trial, J. K. Taylor, the justice of the peace who issued the warrant by virtue of which the plaintiff was arrested, testified that the defendants Martha E. Turner and her husband came to his house in January. That she signed the complaint, or what purported to be a complaint, and upon that complaint he issued a warrant. That, after he had drawn the warrant, Mrs. Turner took it. “ She said she wanted Mr. Conger, the deputy-sheriff, to serve the same. Conger at that time lived at the village of Oxford. She received the warrant, and put it in her pocket, and took it away with her. Conger lived five miles from my house. She and her husband went away together, and they came back again to my house in the afternoon. Conger, the deputy-sheriff, brought the plaintiff to my house about the same time. They stopped at this time about two hours. The plaintiff was required to give bail, and afterwards there was a trial which lasted two days, and the plaintiff was discharged. The complaint was in Mr. Duff’s handwriting, and Mr. Duff was at the time the district attorney of the county. Mr. Duff was not present when the warrant was issued, but after the arrest he attended to the case on behalf of the state.” Conger testified that the defendant Mrs. Turns? came to him on the 21st of January, and handed him the warrant, and stated to him that she wanted him to take the warrant and serve it on Frazier right away. David Turner was with her.</p> <p>On the trial the plaintiff stated that he made no claim for punitory damages, and that they made no claim on account of malice; only actual damages. On the defense, the defendants offered some evidence tending to show that the justice gave the warrant to David Turner, the husband, instead of to Martha E., his wife. The defendants also offered to show that they had, previous to the application for the warrant, made a statement of the facts to Mr. Duff, the district attorney, and that he drew up the complaint. This was objected to by the plaintiff, and excluded by the trial court, on the ground that, as there was no claim that the arrest was maliciously made, and no claim for punitory damages, the motive which actuated the defendants in making the complaint and procuring the arrest was immaterial.</p> <p>The following are copies of the complaint and the war-rant issued thereon, on which the plaintiff was arrested, viz.:</p> <p>Maequette County. J ’</p> <p>“ State of Wisconsin against Lorenzo Frazier.</p> <p>“ Martha F. Turner, being duly sworn, says that on the 4th day of January, A. D. 1889, at said county, Lorenzo Frazier did feloniously take, steal, and carry away one promissory note, the property of the said Martha F. Turner, and against the peace and dignity of the state of Wisconsin. [Signed] Mabtha E. TubNee.</p> <p>“Subscribed and sworn to before me this 21st day of January, A. D. 18S9. J. K. Taylob, Justice of the Peace.”</p> <p>“ Maequette Couoty, i</p> <p>TowN of Oxfobd. j ss'</p> <p>“ The Stale of Wisconsin to the sheriff or any constable of said county: Whereas, Martha E. Turner has this day complained in writing to me, on oath, that Lorenzo Frazier did on the 4th day of Januar}^ A. D. 1889, at the town of Oxford in said county, feloniously take, steal, and carry away one promissory note, the property of the said Martha E. Turner, and prayed that the said Lorenzo Frazier might be arrested and dealt with according to law: Now, therefore, you are■ commanded forthwith to apprehend the said Lorenzo Frazier, and bring him before me to be dealt with according to law.</p> <p>“Given under my hand this 21st day of January, A. D. 1889. J. K. Taylob, Justice of the Peace.”</p>

<p>APPEAL from the Circuit Court for Bane 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 alia, that the homestead estate which descended to defendant was a freehold estate which gave her seizin. -1 Kent’s Comm. 26; 1 Washb. Real Prop. 87, 88, and note 5; Coke, Litt. 42<r</ 1 Greenl. Cruise, 102, 103, pi. 2, 3, 7; Roseboom v. Van Vechten, 5 Denio, 415. Such freehold estate in defendant prevented seizin in her son. Holbrook v. Wightman, 31 Minn. 168; Abbott v. Abbott, 97 Mass. 138; Eerley v. Eerley, 13 Allen, -286; Browning v. Harris, 99 Ill. 456. Hence his wife could have no claim for dower in the homestead. 4Kent’s Oomm. 39, and notes; 1 Bish. Mar. Worn. secs. 273-277; 1 Scrib. Dower, 217, 308; Du-rando v. Durando, 23 N. Y. 331; Blood v. Blood, 23 Pick. 80; Fldredgev. Forrestal, 7 Mass. 253; Fish v. Eastman, 5 N. II. 240, 479; Arnold's Heirs v. Amoláis Admit, 8 B. Mon. 204; Gardner v. Greene, 5R. I. 104; Goalie's Fx'r v. Philips, 12 Leigh, 248; Stow v. Tifft, 15 Johns. 458; West v. Ward, 26 Wis. 579; Merrijield v. Merrifield, 82 Ky. 535; Carolina Nab. Bank v. Seim, 25 S. C. 572. The deed, if void at all, is void only as to plaintiff’s right of dower. Youngs v. Carter, 10 Hun, 194; Green-v. Green, 34 Kan. 740; Butler v. Butler, 21 id. 521; llafer v. Hufer, 33 id. 449; Busenbark v. Busenbark, id. 572; Jones v. Jones, 64 Wis. 301; S. C. 71 id. 513; Maleverer v. Pedshaw, 1 Mod. 35; Muelcie v. Cairns, 5 Cow. 554, 564; May, Fraud. Conv. 477; Beverley v. Gatacre, 2 Roll. Rep. 305, cited in White v. Drake, 3 Keb. 6; Bump, Fraud. Conv. 451; Moseley v. Moseley, 15 N. Y. 334; Darling v. Rogers, 22 Wend. 483; Hoit v. Houle, 19 Wis. 472; Pickering v. 1. R. Co. L. R. 3 C. P. 250; Fx parte Browning, L. R. 9 Ch. App. 583; Minnesota Co. v. Chamberlain, 3 Wall. 704; Railroad Co. v. Soutter, 13 id. 517; Barnes v. C., M. d¿ St. P. R. Co. 122 U. S. 1; Chandler v. Hollingsworth, 3 Del. Ch. 99; Bredon's Case, 1 Rep. 76; Shep. Touch. 68; Doe v. Pitcher, 6 Taunt. 359, 309; 1 Story’s Eq. Jur. sec. 371; Croker v. Martin, 1 Bligh (N. S.), 573, 588-91; Dolphin v. Aylward, L. R. 4 H. L. 499, 500, 502; Walthampton's Estate, L. R. 28 Olí. D. 391; Eekewich v. Manning, 1 De Gex, M. & G. 176; Gray v. Hook, 4 N. Y. 449; Tobey v. Robinson, 99 III. 222; Widoa v. Webb, 20 Ohio St. 431; Hanauer v. Doane, 12 Wall. 342, 345. The mere non-communication to plaintiff of the existence of the deed did not render it void. Jones v. Jones, 64 Wis. 307; Fennessey v. Fennessey, 84 Ky. 519; Hamilton v. Smith, 57^Iowa, 15; 1 Scrib. Dower, 591, 595; Champlin v. Champlin, 15 Atl. Eep. (E. I.), 85; 1 Lead. Oas. in Eq. 605, 618, 623; 2 Kent’s Comm. 175; Saunders v. Harris, 1 Head, 185; Jordan v. Black,, Meigs (Tenn.), 142; Logan v. Simmons, 8 Ired. Eq. 4S7; Ramsay v. Joyce, McMullan’s Eq. 236, 242; He Mandeville v. Crompton, 1 Yes.'& B. 354; 2 Yaisey, Mar. Sett. 1581, 1583,1584; Maher v. Hobbs, 2 Y. & C. 317; Trader v. Clarke, 2 Macn. & G-. 382.</p> <p>contended, inter alia, that the necessary effect of this secret transaction, if the deed were valid, would be to defeat the plaintiff’s marital rights and just expectations as the wife of Charles L. Dudley. The logical inference of fact from the testimony is that this was intended, as respects this property, and the law conclusively presumes that this necessary result was intended, and holds the deed made to effectuate it absolutely void. Jones v. Jones, 64 Wis. 301; Way v. Way, 67 id. 666; Freeman v. Hartman, 45 Ill. 59; Thayer v. Thayer, 14 Yt. 107; Baird v. Stearne, 15 Phila. 339; Duncan's Appeal, 43 Pa. St. 67; Bobinson v. Buck, 71 id. 386; Mickey’s Appeal, 107 id. 611; Gilson v. Hutchinson, 120 Mass. 27-32; Pomeroy v. Pomeroy, 54 How. Pr. 228, 232-4; Baker v. Jordan, 73 N. C. 145; Smith v. Smith, 6 N. J. Eq. 515, 521-2; Wait, Fraud. Conv. secs. 7-10, 70, 382, 110 and note, 314-5; Boone, Eeal Prop. secs. 289, 390; 2 Bish. Mar. Worn. secs. 343, 350-2, 355; Willard’s Eq. Jur. (Potter’s ed.), 696-7. The deed being fraudulent and void as against the plaintiff, it follows that as to her C. L. Dudley died seized of all the interest in the land in question assigned to him by the judgment of the county court of Dane county. Many of the decisions already cited are based upon this assumption, and it is so expressly ruled in Thayer v. Thayer, 14 Vt. 107, 118; 39 Am. Deo. 211; Brown v. Bronson, 35 Mich. 416, 419. See, also, Cornell v. Badway, 22 Wis. 265. It may be conceded that O. L. Dudley could, by will or deed free from the vice of fraud, have disappointed plaintiff’s expectations and barred her marital rights, in so far as they were contingent and dependent upon the exercise of his power to dispose of his property; but this is wholly immaterial, so long as he did not lawfully do so, but as to her died seized.</p>

The following statement of the case was prepared by Mr. Justice Cassoday : It appears from the record that on or about December 12, 1888, the mare in question was stolen from the plaintiff. He thereupon offered a reward of $25 to any one who would return the mare to him, or for information that should lead to her recovery, and double the sum for the thief. On or about December 17, 1888, the defendant purchased the mare from the ^supposed thief.

<p> Logs and timber: Wrongful cutting: Evidence: Measure of damages: Liability for acts of agent. </p> <p>1. In an action to recover damages for the wrongful cutting and carrying away from plaintiff’s lands of pine logs marked with a certain mark, it was not error to admit evidence of the cutting of other logs, when such evidence tended to show how many of the logs so marked were taken and the jury were instructed that damages could be recovered for the logs so marked only.</p> <p>2. The evidence in this case (stated in the opinion) is held to justify an instruction that the evidence tended to show that the defendants had cut and taken .away from plaintiff’s land 74,600 feet of logs marked with a certain mark.</p> <p>3. Where one employed to cut and haul the timber on his employer’s land also cuts logs from adjoining land belonging to another person and delivers them to his employer, the latter, if he refuses to deliver such logs to their owner, will be held to have adopted the unlawful acts of his employee, and will be liable for the enhanced damages prescribed by sec. 4269, R. S.</p>

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

<p> Insurance against fire: Payment of premium: Waiver: Receipt: Cancellation of policy: Evidence. </p> <p>1. The agents and secretary of an insurance company sent to the plaintiff, whose policy was about to expire, blank applications for renewal, to be signed and returned by him, and stated that on receipt thereof the company would render a statement showing the amount of the dividend or unearned premium due the plaintiff on the old policy, and would credit the amount on the premium of the new policy. Plaintiff signed the application and returned it, with a premium note, and received a new policy, reciting that he had given such note and paid the cash premium. Plaintiff testified that he never received any statement, and did not know the state of the account between him and the company or the amount óí such unearned premium; that no claim had been made upon him for any premium upon the new policy, and that in his dealings with the defendant and its agents their mode of business had been to send him a statement of the amount of premium due and the amount of dividends to be deducted, and to draw upon him for the balance. Held, that the questions whether the premium on the new policy had been paid, or whether payment thereof had been waived, were properly left to the jury.</p> <p>2. The recital in the new policy of the payment of the cash premium was pi ima■ facie evidence of that fact.</p> <p>3. The renewal of the insurance having been procured by virtue of the letters soliciting the same and enclosing the applications therefor, the company cannot, in an action on the policy, deny the genuineness of such letters or that they were authorized.</p> <p>4. In an action upon a policy of insurance a copy of a letter, in the letter-book of defendant’s agent, purporting to have been written by a clerk not called as a witness, is not competent to prove a cancellation of the policy, in the absence of any evidence that such letter had been directed or mailed; especially when plaintiff denies having received any such letter.</p> <p>5. The plaintiff, having actual knowledge of the cost of the building insured and what it was worth, was competent to testify regarding the loss, although he admitted that his estimates were based in part upon figures made by experts.</p>

<p> Executions: Judgment for conversion of exempt property is exempt: Practice: Reopening order. </p> <p>1. A judgment against an officer for the wrongful conversion of exempt property seized by him under an execution cannot be discharged, under sec. 8028, B. S., by payment of the amount thereof to another officer having an execution against the plaintiff’s property. The entire judgment, including the costs, is exempt.</p> <p>2. The trial court having decided that the judgment could not be discharged by such payment, and entered an order setting aside a pretended satisfaction by reason thereof, it was not error to refuse to reopen such order upon a petition by defendant alleging that plaintiff has other exempt property to the amount allowed by law.</p>

<p> Constitutional law: Division of counties: Apportionment of assets and liabilities: Enforcement of claims. </p> <p>1. The creation or division of counties, and the adjustment of the respective rights and liabilities of the new and old counties as to the assets and debts of the latter, are not part of the system of county government, which, by sec. 38, art. IV, Const., is required to be uniform.</p> <p>S. A general law providing for the apportionment of debts and credits in all cases where new counties are created, does not deprive subsequent legislatures of the power to provide otherwise as to counties created by them.</p> <p>8. An act providing for the appointment of commissioners to adjust and settle the rights of the old and new counties, in such a case, does not violate sec. 2, art. VII, Const., where it allows an appeal to the courts from the determination of the commissioners. [Whether the act would be valid if such appeal were not allowed, not determined.]</p> <p>4. Where a new county is created by division of an old one, a claim in favor of the new county under the act of division need not be collected in the manner prescribed by secs. 676, 677, B. S., especially where the legislature has made special provision for adjusting and enforcing such claims.</p>

<p> Pleading: Joinder of causes of action. </p> <p>A complaint praying for the recovery of damages for personal injuries, and also for the cancellation of a receipt fraudulently obtained from the plaintiff, releasing the defendant from liability for such injuries, does not improperly unite two causes of action.</p>

<p>APPEAL from the Circuit Court for Booh County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>The complaint alleges, in effect, that March 5, 1888, the plaintiff was the owner and in the lawful possession of the iron-work of fifty breaking plows, of the value of $653, and that on that day the defendant wrongfully and unlawfully took possession of said property, and unlawfully converted the same to his own use, to the plaintiff’s damage in said sum; and further alleges special damages, by reason of such conversion, in the sum of $55; and demands judgment for $708, and interest thereon from March 5, 1888. The answer, in addition to a general denial, justified the taking of ten plows set up, and forty plows in pieces, as being the property of one E. L. Wagner, upon an attachment, and subsequently on execution, in favor of the defendant and against said Wagner and another; and also alleged certain facts from which it is claimed by the defendant that, the plaintiff was estopped from recovering in this action.</p> <p>At the close of the trial, at the April term of the circuit court for 1889, the jury returned a verdict in favor of the plaintiff and against the defendant in the sum of $315. Erom the judgment entered upon that verdict the defendant appeals.</p>

<p>APPEAL from the Circuit Court for Waukesha County.</p> <p>Replevin for an organ which had been sold by the plaintiffs, through their agent Hills, to the defendant for the agreed price of $130. Fifty-five dollars of the purchase price was paid at the time of the sale, and the balance, payable one year thereafter, was secured, by a chattel mortgage or conditional bill of sale of the organ, executed by the defendant to the plaintiffs. The original mortgage was sent by the agent to the plaintiffs, and a copy was duly filed in the office of the town cleric of the town in which the defendant resided. About two months after the sale, at the request of the agent Hills, the defendant paid to said agent the balance of the purchase price, and received from, him the copy of the mortgage, which was then taken from' the files and upon which Hills wrote the words: “ Paid in. full.” Hills also promised to obtain from the plaintiffs the original mortgage, but never did so, nor did he turn over to the plaintiffs the balance of the purchase price of the organ, so collected by him.</p> <p>The plaintiffs claim to be the owners of the organ under the mortgage. The defendant claims to have paid therefor in full. Other facts are stated in the opinion. The trial court directed a verdict in favor of the defendant, and from the judgment entered thereon the plaintiffs appeal.</p>

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

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

<p> Easement: Right of may: Appurtenant or in gross9 Enlargement. </p> <p>Where the owner of land conveys in one deed a part thereof and a right of way over the other part,- obviously useful and necessary • to the beneficial enjoyment of the land granted, the grantee takes such right of way as appurtenant to the land granted only, and cannot, by reservation in a subsequent conveyance of such land, enlarge such right of way or extend it to other lands owned by him.</p>

<p>APPEAL from the Circuit Court for Iowa County.</p> <p>Action for a libel. The publication complained of was as follows:</p> <p>“THE RUNNING DISGRACE OF GRACE.</p> <p>“ On Monday, just as attorney Grace was shaking the dust of Highland off his feet and removing himself mysteriously out from among the men and things that had known him for so many years, the sheriff of this county was wending his way to the quiet, thrifty, law-loving Christian village that Mr. Grace was so stealthily leaving. The sheriff was sent by Grace upon a graceless mission. He had in his possession for service the papers in an action of attorney Grace against some fifteen of the best citizens of Highland, from whom he claimed, jointly and severally, the modest sum of fifteen thousand dollars. It seems that Mr. Grace had been making serious charges against a clergyman of Highland who possesses the esteem and cordial respect of all the good people of Highland and elsewhere wherever he is known. The people, knowing that there was no truth in Mr. Grace's assertions, called upon him to protest against such injustice. It is said that Mr. Grace, of his own accord, took back all he said, seemed very penitent and sorrowful, went to the home of the clergyman, and upon his knees begged pardon for what he had said. He admitted that what he said was untrue, wickedly false, and a vile slander. There was no force used, nor compulsion or restraint put upon him. What he did was done through a sense of guilt and degradation which the presence of honest men and the consciousness of his wrong moved him to do. Of course, he lost respect, his business dropped off, decent men with whom he had associated avoided him, he became sullen and morose, people looked upon him as a self convicted slanderer of sacred innocence. He in some way conceived that these worthy men who called on him were responsible for his infamy, and in this notion commences his action, and valiantly leaves the community before anyone knew what folly he meditated. There seems to be all through his conduct a low, vindictive, malicious spirit of spite. He had made complaint against one of his neighbors for assault and battery committed over a month ago. He had a warrant issued out before one of our justices here in Dodgeville, had four witnesses summoned, and planned it so that the arrest should be made on the very day he was fleeing from Highland.' The parties who had the difference did not desire litigation, and if it was proper that either should be arrested, the suit ought to be brought before a justice of the town where both of them reside. But Mr. Grace did not seek justice j he sought revenge, and so he brings a suit here in Dodgeville, twenty miles removed from the place where the trouble occurred and where the witnesses and parties implicated reside. Of course the costs to this county or to the accused, whoever should lose, were greatly increased by reason of the great distance to the place of trial; and then he, after commencing this suit, runs away and leaves it, fleeing no man knows whence. The people remember that when Mr. Grace was upon the county board, and when the question of giving money to our county officers which they did not earn was to be voted on, Mr. Grace went to the clerk and requested that his name be called last. He had not the courage and independence of character to stand up and say what he thought; he wanted to know where the majority was, to be with them. Now any man who is so small and cowardly to do as Mr. Grace has done in the arrest; he caused to be made, in his conduct on the county board, is mean enough to slander the pure, noble chai’acter of a clergyman, basely retract on his knees that infamous slander, commence an action without reason, and run away from lack of manliness and confidence in the justness of his cause. We knew of the vile stories he had circulated and the debasement he took upon himself months ago, but as what he said cruelly reflected upon the honor of his own home, w© refrained from making any comment upon it. But now, as he himself is the instrument to make public a disgrace which no respectable man in Highland believes, silence in respect to it ceases to be commendable. It looks very much like a case of striving to acquire a fortune by the dishonor of his home.”</p> <p>Other facts are stated in the opinion. See, also, the case of Grace v. Dempsey, 75 "Wis. 313.</p> <p>They argued, among other tilings, that the motion for a new trial was addressed to the legal discretion of the.trial coart, and this court will not interfere unless there was a clear abuse of that discretion. McLimans v. Lancaster, 51 Wis. 299; Lames v. Merrick, 6 id. 57; Cools v. St. L. & K. It. Co. 56 Mo. 380; Ba/t'rett v. T. A. It. Co. 45 N. Y. 628, 632; Lampsen v. Brander, 28 Minn. 526; Cirlsel v. Crosswell, 36 id. 323; Abies v. Donley, 8 Tes. 331, 336; Jalie v. Cardinal, 35 Wis. 118, 125; Evans v. Bugee, 63 id. 31; Perry v. Cochran, 1 Cal. 180; Carson v. Dellinger, 90 N. C. 226. Applications of this nature are regarded with suspicion and disfavor. Edmister v. Garrison, 18 Wis. 603; Conradt v. Sixbee, 21 id. 383; Jalie v. Cardinal, 35 id. 125; Cools v. St. L. dh K. B. ■Co. 56 Mo. 380; Hayne, New Trial and App. sec. 87; Moore v. Philadelphia Bank, 5 S. & K. 41; Balter v. Joseph, 16 Cal. 173, 180; Lampsen v. Brander, 28 Minn. 526; Fuller v. Harris, 29 Fed. Hep. 814, 818; Comm. v. Murray, 2 Ashm. (Pa.)J 41, 49; Comm. v. Williams, id. 69, 75; Parker v. Hardy, 24 Pick. 246, 249; Pleasant v. State, 13 Ark. 360, 379; Cirlselv. Crosswell, 36 Minn. 323; Pinschower v. Hanks, 18 Nev. 99; People v. Sutton, 73 Cal. 243. Affidavits in support of a motion for a new trial are not to be taken as true, but the trial court may consider counter affidavits. De Hart v. Aper, 107 Ind. 460; Mead v. Constans, 5 Minn. 176; De Hart v. Etnire, 121 id. 242; Peterson v. Faust, 30 Minn. 22; Parker v. Hardy, 24 Pick. 246, 249; Ames v. Howard, 1 Sum. 482, 491; City & S. B. Co. v. Findley, 76 da. 317; Schnurr v. Stultz, 119 Ind. 429; Fleming v. Hol-lenback, 7 Barb. 271, 276; Powell v. Jones, 42 id. 24, 28; Williams v. People, 45 id. 206; Cirkel v. Crosswell, 36 Minn. 323; Fldridge v. M. <&’St. L. B. Co. 32 id. 253; Sikes v. Parker, 95 N. C. 232, 238; People v. Miller, 33 Cal. 99,102; Board of Begents v. Linsoott, 30 Kan. 240; Meric v. Gelz-haeuser, 50 Cal. 631; Harris v. Bupel, 14 Ind. 209,'212; Meroer v. Mercer, 87 Ky. 21; Buble v. McDonald, 7 Iowa, 90; Frskine v. Duffy, 76 Ga. 602, 611; Atlanta v. Buchanan, id. 585; Simmons v. Fay, 1 E. I). Smith, 107; Fowler v. Kelly, 43 N. Y. Super. Ct. 383; Pomroy v. Columbian Ins. Co. 2 Caines, 260; Williams v. Baldwin, 18 Johns. 488; People ex rel. Oelricks v. Superior Court, 10 Wend. 285; Kelleher v. Kenney, 4 Pac. Rep. (Cal.), 1095; Coast line B. Co. v. Boston, 83 Ga. 387; Byrne v. Peed, 75 Cal. 277; Hart-wright v. Badham, 11 Price, 383; State v. Betsall, 11W. Ya. 703, 731; Stoakes v. Monroe, 36 Cal. 383, 389; Wallace v. Aicfo, 70 Ga. 722; Boss v. Sedgwick, 69 Cal. 247; Conradt v. Sixbee, 21 Wis. 383; Wilson v. Plank, 41 id. 94; Pike v. Vaughn, 45 id. 660. A motion for a new trial on the ground of newly discovered evidence will not be granted unless such evidence will upon another trial probably produce an opposite result. Schultz v. T. A. B. Co. 47 N. Y. Super. Ct. 285; Starin v.. Kelly, id. 288; Fowler v. Kelly, 43 id. 380; Darlm v. Elwood, 67 Barb. 359; Thompson v. Comm. 8 Gratt. 637,'646; Sikes v. Parker, 95 N. C. 232, 238; Sim-m.ons v. Mann, 92 id. 12, 16; Smith v. Schultz, 2 Ill. 490; Hines v. Driver, 100 Ind. 315; Middletown v. Adams, 13 Yt. 285; Hall v. Lyons, 29 W. Ya. 410; Crafts v. Union M. F. Ins. Co. 36 N. H. 44, 50; Lessee of Ludlow's Heirs v. Park, 4 Ohio, 15, 45; Mead v. Constans, 5 Minn. 171, 176; Moore v. Philadelphia Bank, 5 S.~& R. 41, 42; People ex rel. Dickinson v. Sackett, 14 Mich. 320; Larnpsen v.Brander, 28 Minn. 526; Cirkel v. Crosswell, 36 id. 323; State v. Al-verez, 7 La. Ann. 283, 285; State v. Bay, 53 Mo. 345, 349; Armstrong v. Davis, 41 Cal. 494, 500; Merkv. Qelzhaeuser, 50 id. 631; Allen v. Perry, 6 Bush, 85, 90; Finley v. Tyler, 3 Mon. 400; Boach v. State, 34 Ga. 78, 83; Starling v. St. Paul Plow-Works, 32 Fed. Rep. 290; Allyn v. Willis, 65 Tex. 65; People v. M'Donnell, 47 Cal. 138; Hull v. Kirkr patrick, 4 Ind. 640; JVewton v. Gardner, 24 Wis. 232, 235; Conradt v. Sixbee, 21 id. 383. •</p>

<p>APPEAL from the Circuit Court for Waukesha County.</p> <p>The following statement of the case was prepared by •Mr. Justice Cassoday:</p> <p>The complaint in this action was for an alleged conspiracy of the several defendants for the purpose of controlling and monopolizing the entire coal business in .the city of Milwaukee, and preventing all dealers therein from selling at less rates than the prices fixed by them, and thus preventing competition, to the injury of the plaintiff’s business, and to drive him and others out of the business; which complaint was, on demurrer, held to state a good cause of action by this court in Murray v. McGarigle, 69 "Wis. 483. Upon the cause being remitted and issue joined, the same was subsequently tried, and upon such trial the plaintiff obtained a verdict of $4,'750. The defendants thereupon moved for a new trial, mainly on the ground that such damages were’ excessive. Thereupon the trial court ordered that if the plaintiff would remit from such verdict $3,250, and allow the same to stand for the amount of $1,500 only, the motion for a new trial therein would be denied; otherwise it would be granted. The plaintiff refused to so remit, and the motion for a new trial was thereupon granted, and the order granting the same was subsequently affirmed by this court in Murray v. Buell, 74 Wis. 14. .</p> <p>It now appears that, prior to obtaining such verdict, and on or about July 1, 1887, the plaintiff, by an instrument in writing, bargained, sold, assignee!, and set over to one Thomas E. Clarke the .cause of action mentioned in said complaint, which assignment, omitting the title, is as follows: “Know all men by these presents that I, John Murray, of the city and county of Milwaukee, for and in consideration of the procuring sureties and -becoming surety for me in the above-entitled action, and of becoming liable for certain costs, expenses, attorney’s fees, and disbursements in the prosecution of said action, do hereby bargain, sell, assign, and set over to Thomas E. Clarke, of the said city and county of Milwaukee, all my right, claim, and interest in and to any and all moneys, property, judgment, and each and every thing of value which may come, arise, or be recovered in this action, or by compromise, settlement, or otherwise, from the above defendants, or growing out of the matters mentioned in this action, for the purpose of securing and reimbursing the said Thomas F. Clarke for his said expenses, outlay, and liability incurred or to be incurred as aforesaid; the said Thomas E. Clarke, being so reimbursed and made whole in the matter, to surrender this contract, and release all further claim against me, and all claim upon the matters and things hereby assigned and set over to him. [Signed] JohN MurRAt.”</p> <p>After said cause was remitted from this court on the appeal reported in 74 Wis. 14, and on or about May 27, 1889, the plaintiff, for and in consideration of $700 to him paid by the defendants, and by an instrument in writing acknowledging tlie receipt of the same, thereby remised, released, and forever discharged, and for himself, his heirs, executors, administrator’s, and assigns, remised, released, and forever discharged the said defendants, their heirs, executors, and administrators, of and from all debts, demands, actions, and causes of action which he then had, or which might result from the existing state of things, from any and all contracts, liabilities, and omissions, and especially from all claims and liabilities under this action, then pending in the circuit court against the defendants, and from all costs of said action, and thereby confessed and acknowledged full satisfaction of all claims upon which the said action was based; and in consideration of the premises thereby agreed and bound himself to hold the defendants and each of them free and harmless from and against any and all claims which might be thereafter made upon them by his agents, attorneys, or assigns, based upon or in any way arising from said action or from any of the transactions upon which said action was based.</p> <p>Thereupon, and on or about May. 31, 1889, the said Thomas E. Clarke filed a petition in this case, setting forth a summary of the nature of the case, and said assignment to him by the plaintiff, and his liability as surety for the plaintiff, and the moneys he had advanced in said action for and on account of the plaintiff, and asked the court for an opportunity to present the necessary evidence and to prosecute the action to its final determination in the name of the plaintiff, as the only way in which he could be relieved from his liability as aforesaid. The defendant thereupon replied to said petition, and the same was tried by the court and a jury, and upon such trial the jury returned a special verdict to the effect that the plaintiff made the assignment to Thomas F. Clarke, mentioned, on July 1,1887, in good faith and for a valuable consideration; that said Thomas F. Clarke, in pursuance of said assignment, became liable for and laid out and expended money for the plaintiff in the sum of $586; that the defendant Buell, at the time of the settlement with the plaintiff, May 27, 1889, had knowledge or notice of the said assignment; that it was one of the objects of the coal association to regulate and control the prices of coal in the retail trade in the city of Milwaukee; that it was one of the objects of said coal asSociation. to drive out of the coal business any person who should sell coal at prices less than those fixed by said association; that the defendants, or some of them, at or after the execution of the first agreement between Buell and MeGarigle, did an overt act or acts which affected the ■plaintiff, for the purpose of carrying out such objects of said coal association; that the plaintiff was driven out of the business under the first contract between Buell and 'MeGarigle, by reason of such acts; that the plaintiff sustained damages to the amount of $586. The court ordered judgment for the sum last mentioned, upon such special verdict, in favor of the plaintiff and against the defendants. From the judgment entered accordingly upon such verdict the defendants appeal.</p>

<p>VENDOR and Purchaser or Land : Equity. (1) Specific performance: Laches. (2J Retention of cause in equity to grant compensation. (8) Measure of damages, (b) Certainty in description.</p> <p>1. An action for the specific performance of a contract to convey lands not having been brought until nearly six years after the conveyance was to have been made,— during which time the grantor died, the taxes were all paid by him and his heirs, and the lands increased from twenty to fifty fold in value,— and the delay not being excused, it is held that it would be inequitable to enforce such performance.</p> <p>2. Specific performance being denied in such action, and the statute of limitations having run upon the contract pending the suit, so as to bar an action for the breach, jurisdiction in equity is retained for the purpose of granting compensation for such breach; but it is left optional with the defendant to accept the findings of the trial court as to the facts by which the damages are to be ascertained, or to have a new trial to determine such facts.</p> <p>8, For the breach of a contract to convey lands, the consideration for which, being the settlement of actions and matters of difference between the parties, cannot be ascertained in money or values, the measure of damages is the value of the lands at the time the conveyance should have been made, with interest to the time of trial.</p> <p>4. A contract for the conveyance of all the grantor’s “stump lands” lying within one and one-half or two miles of Hay Meadow creek, not being adjacent to and along Prairie river, all in certain townships; “ the intention being to convey ... all the lands lying on and along Hay Meadow creek from below, adjacent, and above the dam on said creek, not including cedar lands on lower end of Hay Meadow or lands below the meadow; the intention being to include all stump lands opposite, above, and in the vicinity of the dam, . . . lands that the outlet of hauling off timber that would go to Prairie-river not to be included,” — is held not void for uncertainty.</p>

<p>APPEAL from the Circuit Court for Fond du Lac County.</p> <p>The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion:</p> <p>The appellants commenced an action in the circuit court against the defendant, and in such action filed and served a complaint of which the following is a copy, omitting the title:</p> <p>“ The complaint alleges that the plaintiffs are the owners in fee and are in the actual possession and occupancy by one Benjamin O’Deal, their tenant, of private claim 33, in town 21, range 18, in the county of Outagamie, containing 641-k acres, except forty acres thereof on the southwesterly corner, owned by Mrs. Mary E. G-rignon; that said plaintiffs, their grantors and ancestors in title, have been in the actual possession and occupancy of said land for more than twenty years prior to July 3, 1886, and have continued such possession since said last-mentioned date by their said tenant; that such possession was taken and has been continued under claim and color of title, and has been continuous, open, exclusive, and uninterrupted, and adverse to the defendant and all others; that the defendant sets up, gives out, and pretends that he is the owner of said private claim 33 by and through some' pretended tax dee.d or deeds and a judgment of some court bad and obtained more than twenty years ago last past, and claims the right to exercise acts of ownership over said land, which pretended rights these plaintiffs deny; that under such claim of right the defendant has at divers times entered upon said land and committed waste, and, by himself and his servants, agents, etc., continues to do so, by cutting and carrying away the trees thereon standing and growing, and digging sand and gravel, and removing the same, and has lately caused to be excavated on said land a large hole or shaft to a stratum of rock, for the purpose of quarrying stone therefrom, and has recently pretended to sell to one Lindawer a lot or parcel of said land containing a sandbank, and has also entered upon another part of said land and erected a dwelling-house,— all of which aforesaid acts and doings of the defendant have been done without the permission and against the will of the plaintiffs, and tend to promote vexatious and expensive litigation in order to recover the damages thereby sustained by them, and enforce their rights in the premises; all of which said several acts and doings of the defendant are and will cause irreparable and permanent injury to the said land, and if continued, as threatened by the defendant, will cause further and irreparable injury to the said land and freehold of the plaintiffs.</p> <p>“ That within two years last past the defendant, to vex, harass, and annoy the plaintiffs and their said tenant, O’Deal, has commenced against said O’Deal divers actions in the circuit court of Outagamie county, which said actions are still pending in the circuit court of Pond du Lac county, the place of trial having been changed to said last-mentioned county; that the first of said actions so commenced is one known as an action of trespass quare clausum fregit, for acts alleged to have been done on said land by said O’Deal, which said action has been at issue for several terms of said court, and, on the part of the defendant O’Deal, ready for trial; that the second of said actions so commenced by the defendant against said O’Deal is an action on the equity side of said court, setting up in the complaint the pretended title of said Blade to the said land, demanding a temporary injunctional order restraining said O’Deal from cutting wood, hay, .shade trees, etc., on. said land, and a judgment making said order- perpetual, and for damages; that said O’Deal duly served an answer in said action denying said Black? s title and every material allegation of said complaint, and that on said O’Deal’s part said-action has been ready for trial ever since the service of said, answer; that the third of said actions so commenced by the' defendant against said O’Deal is an action of ejectment fora small part of said claim 83, amounting to less than one acre of land, on which stands the dwelling-house appurtenant to said private claim, and in which the said O’Deal, the tenant of these plaintiffs, resides with his family, the, title to which said parcel of land embraced in said action of ejectment is the same and not different in any particular from the title to the whole of said private claim claimed and owned by the plaintiffs, and occupied by said O’Deal-as their tenant, and said parcel of land is entirely unin-closed, and in no way or manner separated from the other1, portion of said private claim; that said O’Deal has long since served upon said Black, his answer to the said action of ejectment, putting in issue the said Black's title to, and right of entry upon, said private claim 33, and the whole thereof, and in which action the said O’Deal is, and for a long time has been, readjr for trial.</p> <p>“And the plaintiffs allege and show that, by the trial of the several actions so as aforesaid commenced by the said defendant Black against the said O’Deal, the tenant of said plaintiffs, his, said Black's, possessory rights, and his title and right of entry to said land, may be fully settled and determined,</p> <p>“ Wherefore the plaintiffs say that the acts and doings of the defendant, as herein stated and complained of, are contrary to equity and good conscience, and tend to the manifest wrong and injury of the plaintiffs, and to the irremediable injury to the premises herein described. The plaintiffs therefore pray that the defendant, Ancbrew O. Black, bis agents, servants, etc., be restrained and enjoined by the preliminary order of this court from cutting or removing from said private claim 33, as claimed by the plaintiffs, any timber, wood, stone, or gravel, and from digging, for quarrying or any other purpose, any holes or shafts on said claim, and from leasing, selling, or conveying any of said claim, or from putting any one in the occupancy of the same, or any part thereof; and that said injunction be continued until said actions herein mentioned, or some of them, be tried and determined, or until the defendant’s claim of-title to said land be otherwise settled and determined; and for such further or other relief as the court shall deem equitable and just, and for judgment against the defendant for the costs of this action.”</p> <p>To this complaint the defendant filed an answer and counterclaim. The answer denies most of the material allegations in the complaint, but is unimportant in the consideration of the questions involved in this appeal. The defendant also filed and served a counterclaim, of which the following is a copy, viz.:</p> <p>“Further answering, as and for a counterclaim herein, alleges that September 7, 1863, a tax deed was duly issued to defendant, of said land, which deed was duly recorded on the same day; that said tax deed was foreclosed by action in the circuit court of Outagamie county, and judgment rendered in favor of the plaintiff in said action, and duly docketed December 1, 1864; that defendant immediately thereafter entered into possession of said land under claim of title, and has ever since been in the continual possession thereof, has usually cultivated and improved the same, paid the taxes thereon (except on 1-32 part thereof, for one or two years) and before this action was commenced had actually inclosed about 160 acres thereof, etc.; that said premises have been and are now known as a single lot, to wit, ‘Private Claim 33,’ and are so designated and given by the United States, and are the same premises described in the complaint; that other tax deeds of said lands were issued to defendant, as follows: September 4,1865, May 16,1866, May 14, 1867, and September 2, 1871,— and were each recorded on the same day as issued. [Copies of said deeds and said judgment are annexed to said answer as Exhibits A, B, C, D, E, and E.]</p> <p>“ That immediately upon the execution, etc., of each of said deeds, to wit, September 4,1865, May 16, 1866, May 14, 1867, and September 2, 1871, this defendant entered into the possession of said land under claim of title thereto exclusive of any other right, foundingsuch claim upon each said deeds at each said entries in addition to the prior deeds and .judgment, and has been ever since in the continual occupation and possession of said premises for fifteen years and upwards, etc.; that defendant duly recorded in the office of the register of deeds notice of the payment by him of the taxes on said lands, copies of said notices being annexed as Exhibits G-, H, and I.</p> <p>“That neither the plaintiffs, their ancestors, predecessors, nor grantors were seized or possessed of said premises within a period of twenty years immediately before the commencement of said action; that more than three years have elapsed since the recording of each of said deeds before the commencement of this action, during all of which time defendant was in the actual possession of said lands, claiming title under said deeds, and will rely on the statute of limitations in such case made and provided.</p> <p>“Wherefore, defendant demands judgment that the complaint be dismissed and the injunctional order be dissolved, and that the title absolute in and to the said real estate and premises described in the complaint, and included in said tax deeds and judgment, be adjudged to be in this defendant, and for costs of suit, and for such other and further judgment and relief in the premises as to the court shall seem just and equitable.”</p> <p>To this counterclaim the plaintiffs demurred “ (1) because there is another action pending between the same parties for the same cause of action, as appears by said answer; (2) because the said counterclaim does not state facts sufficient to constitute a cause of action; (3) because the cause of action stated is not pleadable as a counterclaim to said action.” The court overruled the demurrer to the counterclaim, and plaintiffs excepted and replied to the counterclaim, denying the material allegations of the same.</p> <p>The case was placed upon the calendar by the defendant for trial at the July term, 1889. On the case being called for trial the plaintiffs moved the court for judgment on the pleadings. The motion was denied, and the plaintiffs excepted. The plaintiffs then objected to any adjudication of title in this action to the lands described in the complaint. This motion was also overruled, and plaintiffs excepted. The plaintiffs then demanded that the question of title should be tried by a jury in an action at law, — = demanded a jury trial as a right. This was also denied and excepted to. Plaintiffs then objected to any evidence under-the answer, for the reason that said answer does not set forth facts sufficient to constitute a defense to this action, and because it appears thereby that the defendant has an adequate and complete remedy at law. Overruled and exception. The plaintiffs made a further objection that it appears on the face of the defendant’s alleged counterclaim in this action that, within the meaning of the law in relation to counterclaims, it is not properly pleaded in this action, and that the court has no jurisdiction to try and determine the question of the legal title to lands attempted to-be raised by said counterclaim. Overruled and exception. Plaintiffs then moved the court for leave to discontinue the action, including the defendant’s counterclaim, with costs in favor of the defendant. This was also denied, and plaintiffs excepted.</p> <p>The plaintiffs then declined to prosecute their action further. A trial was afterwards had upon the defendant’s counterclaim, and a judgment rendered establishing the defendant’s title to the lands described in defendant’s counterclaim, and barring the plaintiffs, and all persons claiming under them or either of them, of any right, title, or interest in said lands, or any part thereof, and giving the defendant a judgment for the costs of the action. From this judgment the plaintiffs appeal to this court.</p>