Volume 77 — Wisconsin Reports

The action is to recover damages for personal injuries sustained by the plaintiff, alleged to have been caused by the negligence of the defendant railroad company. The plaintiff was a brakeman employed by that company, and when in the performance of his duty as such, on the top of a train of cars approaching the city of De Pere from the north, in the day-time, he was struck by a tramway erected across the railroad, and received the injuries complained of.

<p> Insurance against fire: Insurable interest. </p> <p>A married man purchased a farm and buildings, paying therefor with his own money. By his direction the deed was made to his wife, there being an understanding between them that she would convey to him on request. He made improvements, and had possession and the entire beneficial use of the farm and buildings, cultivating the farm at his own expense, and using the proceeds in the support of his family. All the personal property on the farm belonged to him. Held, that he had an insurable interest in the buildings.</p>

<p> Master and servant: Personal injuries: Defective appliances: Evidence: Instructions to jury: Negligence of co-employee. </p> <p>1. In an action for personal injuries caused by the fall of a scaffold típon which plaintiff was at work, and which was alleged to have been defectively constructed, it was not error to permit the jury to take to their room a model of the scaffold which had been used by the defendant’s witnesses to illustrate how it was built, although such model had not been formally introduced in evidence, and1 the testimony as to its correctness was conflicting.</p> <p>2. The plaintiff having told the carpenters who built the scaffold not to put a brace in the middle of it, as they were about to do, because it would be in his way and he would have to take it out, and that the scaffold was all right without it, an instruction that “ a mere suggestion of the plaintiff that he thought the middle brace was not needed, would not excuse the defendant for not putting the same in its place, if it was necessary to make the scaffold safe,” was not applicable to the facts and was properly refused.</p> <p>3. Evidence of what the plaintiff told a witness through an interpreter should not be excluded as hearsay.</p> <p>4. Brick-masons and then attendants, in the employ of the same person and engaged in the same work upon the same scaffold, are co-employees, and the employer is not liable for an injury to one through the negligence of another.</p>

<p> Master and sei'vant: Injuries from defective machinery: Special verdict: Court and jury. </p> <p>1. In an action for personal injuries alleged to have been caused by defects in an edger through which the plaintiff was engaged in running lumber, the jury found that the edger was out of repair, hut to the question, “Was the want of repair of the edger a cracked or broken roller or rollers, or rollers that were worn out of proper form by use? ” they merely answered “ Yes.” Tire complaint alleged that one of the rollers was cracked and broken, but did not allege that they were worn out of proper form by use, and there was no evidence that such was the case. Meld, that such indefinite and uncertain answer could not aid in supporting the judgment.</p> <p>To the question whether the defendant’s agente knew that the edger was liable on occasions to throw back with great force planks and boards that were passing through it, the jury answered that there was no proof upon which they could base an answer to that question. Held, that this was equivalent to a negative answer and should have been received as such, and that it was error to send the ■ jury back, after causing to be read to them portions of the testimony of one witness, but omitting other material portions and other testimony on the same subject.</p> <p>3. In the absence of evidence as to whether the defendant’s agents knew of plaintiff’s inexperience and ignorance of the dangers connected with the machinery, the jury cannot be permitted, in deciding the question, to rely upon mere inference, conjecture, and their own personal experience.</p> <p>4. A question as to whether, if the plaintiff had known that under certain circumstances boards were .likely to be thrown back from the edger, he could have avoided the injury, being based entirely upon a hypothetical state of facte which the plaintiff insists did not ■ exist, should not have been submitted to the jury.</p> <p>5. A special verdict which does not determine all the material and controverted facts in issue, is defective, and if it is unaccompanied by a general verdict, such defect is not waived by a failure to object to the questions submitted or to request the submission of others.</p>

During tbe years 1887 and 1888, tbe defendant McDonald was county clerk of Door county, and tbe other defendants are sureties in bis official bond as sucb clerk. Tbis action is upon sucb bond, three breaches of which are alleged in tbe complaint.

Action upon school orders, payment of which had been refused by the town treasurer upon whom they were drawn. The orders were all in form like the following: “ $2.50 School Oedee.

Action upon several town orders, payment of which had been refused. Each of the orders was in form like the following : “ $61.50 Town Oehee. * No. 1,038. “ (Bidden, Ashland Co., Wis., July 15, 1889. “ To the Treasurer of the Town of Jacobs: Pay to Thomas McQueen or bearer the sum of sixty-one and 50-100 dollars out of any moneys in the town fund not otherwise appropriated, being for assessing.

Action upon the several town orders, payment of which bad been, refused. Each of said orders was in form like the following: “ $10.00 Eoad Okdee. No. 302. “ (Hidden, Ashland Co., Wis., July 20, 1889. “ To the Treasurer of the, Town of Taoobs: Pay to II. Xal-vring or bearer, the sum of ten dollars out of any moneys in the road fund not otherwise appropriated, being for inspecting road.

Tbe complaint alleges that tbe defendants are indebted 'to tbe plaintiff in tbe sum of $414.70, being tbe balance due upon an express contract for work, labor, etc., and for logs,, timber, and lumber sold and delivered, and cut, bauled, and logged for and unto them. For a further cause of action it alleges that tbe defendant McDermott accepted a written order for the payment to the plaintiff of said indebtedness, drawn upon Mm by tbe defendant Sullivan.

Action for the value of labor performed and materials furnished in the construction of two cisterns for the defendant town. The answer was, substantially, a general denial. The principal facts are stated in the opinion.

<p>APPEAL from the Circuit Court for Bmjfield County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>This is an appeal from an order overruling a demurrer to the complaint in an action for libel. The complaint contains the usual colloquium, and alleges the publication, September 13, 1888, of the article in question, which is set out in full, with appropriate innuendoes, and is headed, “ JIis HoNob, James Moley,” followed by a cut, — • a representation and picture of a jackass,— and that is followed by the balance of the article, to wit:</p> <p>“Monday was labor day, and it was celebrated in Wash-burn in a very fitting manner by a torch-light procession, consisting of about 150 torch carriers, who marched from the K. of L. hall to the town hall, where a well-arranged programme of entertainment was nearly, if not quite, carried out.</p> <p>“ The above item appeared in last week’s Itemizer, and had the same effect on an egotistical and over-estimated, self-conceited jackass, who claims the name of James Moley, as a red rag would on an enraged bull. The item referred to calls for no apology on our part, as there is not a word in it detrimental to the above-mentioned quadruped or the poor laboring men, nor can it be so construed; therefore we shall make none. We have neither time nor space this week'to reply to the article of the above gentleman which appeared in tbe Ashland News, Sunday, but in the future look out for breakers. To be continued.”</p>

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>Action to recover a balance of $544.56, alleged to be due upon an account for goods sold and delivered. A bill of particulars was served. The defendant dfenied having received certain of the goods, but admitted an indebtedness of $46.83, and tendered judgment for that amount. The trial resulted in a verdict in favor of the plaintiffs for $685.07, and from the judgment entered thereon the defendant appealed. Other facts will appear from the opinion.</p> <p>They contended, inter aMa, that the trial court erred in admitting the entries in the order books as evidence, and instructing the jury that they were account books under the statute, and presumptive evidence of the charges contained in them. The books were not such as are made prima facie evidence by secs. 4186, 4187, R.. S. They were not account books, but a record of orders received. There was no intent to charge the defendant with the goods at the time of the entry of the orders, as appears by the evidence of the persons making the entries, and by the entries themselves. To entitle a book to be received in evidence under the statute it must be a register of business actually done, and not of orders, executory contracts, and things to be done subsequently to the entry. Fairchild v. Dennison, 4 Watts, 258; Wilson v. Wilson, 6 N. J. Law, 95; Bradley v. Qoodyea/r, 1 Day, 104-106; Terrill v. Beecher, 9 Conn. 344, 348-9. The entries must have been made for the purpose of charging the defendant with the debt. Cooper v. Morrel, 4 Yeates, 341 ; Wilson v. Goodin, Wright, 219.</p> <p>They argued, among other things, that the order-books were admissible in connection with the testimony of the clerks who made the original entries in them. They were not prepared to swear positively to a distinct recollection as to the items sold and shipped, but they did swear as to the correctness of the entries, and such entries were admissible as a part and explanatory of their testimony. Abbott’s Tr. Ev. 322 (38). The proof was complete and undisputed as to the sale and shipment of these goods to B. Marble, Agent, without the introduction of the books under the statute, and if the plaintiffs' failed to comply technically with the statute for the introduction of them as books of account, no harm was done; it was surplusage of proof.</p>

<p> Master and servant: Injm'y from negligence: FeUow-servants: Warning of danger. </p> <p>1. The foreman in charge of the -wort of laying water-mains for the defendant, was personally engaged in calking certain iron pipes which had been placed for that purpose upon blocks. The plaintiff, while helping him to raise the pipes, was injured by one of them falling from the blocks. Seld, that the negligence, if any, of the foreman in not properly securing the pipes upon the blocks was the negligence of a fellow-servant of the plaintiff, for which the defendant is not liable.</p> <p>2. The evidence (stated in the opinion) is held not to show a failure on the part of the defendant to employ a sufficient number of men or to furnish proper appliances to do the work safely.</p> <p>3. Where the dangers of an employment are obvious to any one of or- • dinary intelligence, the employer is under no legal obligation to warn an employee thereof.</p>

<p> Sale of chattels: Delivery: Who to furnish cars? Reasonable time: Delay: Destruction by fire: Gounterclaim: Modification of contract: Evidence: Instructions to jury. </p> <p>1. In. a contract for the sale of logs, which were to be cut and hauled to the railroad within, a certain time, the vendor agreed to load them upon the cars as ordered by the vendees, and the title was to vest in the vendees as fast as they were loaded. There being no express provision on the subject, it is held that the cars were to be furnished by the vendees and within a reasonable time after the logs were ready to be loaded.</p> <p>2. Whether a delay of more than two months in furnishing the cars was reasonable or not, was a question properly left to the jury.</p> <p>3. If, after the vendees were notified that the logs were ready to be loaded, they neglected for an unreasonable time to furnish the cars, and thereafter the logs were destroyed by fire, the loss should fall upon them, and the vendor may recover the contract price of the logs destroyed, as though they had been delivered, less the cost of loading them upon the cars.</p> <p>4. Such recovery may be had, in an action by the vendees for a failure to deliver the logs, upon a counterclaim setting forth the facts and claiming to recover as for a full performance of the contract</p> <p>5. If, after the logs were ready to be loaded, the vendees fully accepted them and, for a valuable consideration, agreed to relieve the vendor from the duty of loading them and to do the loading themselves, the subsequent destruction of the logs was their loss.</p> <p>6. An instruction that if the jury believe a witness has not stated the truth they may reject his testimony, but that they should not reject it without reason or without due care, held not erroneous.</p>

<p>APPEAL from the Circuit, Court for Ashland County,</p> <p>The case is stated in. the opinion.</p> <p>They cited Kollooh v. Poacher, 52 Wis. 393; Hendrioh v. Lindsay, 93 U. S. 143; Norwood v. Pe Hart, 30 N. J. Eq. 412; Vroo-mcm v. Twner, 69 N. Y. 280; Merriman v. Moore, 90 Pa. St. 81; Olodfelter <o. Hulett, 12 Ind. 141.</p>

The following statement of the .case was prepared by Mr. Justice Cassoday: This is a bill in equity, commenced December 19, 1888, to set aside a tax deed obtained by the defendant from Brown county, November 7, 1888, for the tax of 1881 and sale of 1885, of a lot in Green Bay belonging to the plaintiff, and as a cloud upon his title.

Action to recover a commission for finding a purchaser for lands of the defendant. The principal facts are stated in the opinion.

This is an action upon a policy of insurance to recover for a loss hy fire of a portion of the insured property.

Tbe facts are stated in tbe opinion. Tbe plaintiffs appeal from a judgment in favor of tbe defendants. To tbe point that a parol promise by father to son to convey to bim certain land if be would take possession and improve it would be enforced if tbe son, relying upon sucb promise, entered upon tbe land and expended money, work, etc., tbereon, counsel for tbe appellants cited 2 Bing. Real Prop. 318-323; 3 id. 211; Lobdell v. Lobdell, 32 How. Pr. .1; 8. O. 33 id. 347; 8.

1 The facts are stated in the opinion. The defendant Black appealed from a judgment in favor of the plaintiff. They contended, inter aMa, that a suit in equity was the proper,, remedy to enforce the stockholder’s liability in this state. Sleeper v. Goodwin, 6Y Wis. 577; First Mat. Bank v. Gus-tm M. O. M. Go. 42 Minn. 327; Morawetz on Corp. sec. 611; Taft v. Ward, 106 Mass. 518; Pfohl v. Simpson, 74 N, Y. 137.

<p> Claims against estates of decedents. </p> <p>1. An order limiting the time for presenting claims against the estate of a decedent, and a notice by the court, signed at the same time, appointing the times and place for the examination of such claims, are treated as one order and held effectually to limit the time for presenting such claims. Brill v. Ide’s Estate, 75 Wis. 113, distinguished and questioned.</p> <p>2. A joint and several note executed by the decedent, though not payable until after the expiration of the time limited for presenting claims, should be presented as a claim within that time, and the . failure so to present it will bar the holder from a recovery thereon against the estate. Such a claim is not a contingent one, within the meaning of sec. 3858, R. S.</p>

<p> (I, 3) Action to quiet title: Parties: Joinder of causes of action: Void deed. (3) Counties: Donation of lands to railroad. </p> <p>1. In an action to quiet title to land all persons interested in the subject matter adversely to the plaintiff may he made defendants, and the fact that defendants’ claims arise from different sources and are in conflict with each other, or that one of the defendants claims all the land and the others separate parcels thereof, does not render their joinder as defendants improper, or make the complaint multifarious.</p> <p>2. Under sec. 3186, E. S., the action to quiet title may he maintained against one claiming under a void deed.</p> <p>3. A conveyance of its lands by a county as a donation to a railroad company is void; and the legislature, having no power to authorize such donation in the first instance, cannot by a subsequent statute validate the conveyance.</p>

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>The plaintiff brought his action before a justice of the peace, against the defendants, to recover money paid for their use. The summons was not served on the defendant Willes. The remaining six defendants appeared before the justice December 7, 1887, and went to trial. After the plaintiff had put in his proofs, and the court had overruled a motion by defendants for a nonsuit, the following proceedings were had, as appears by the docket entries made by the justice: “ It being night, the court took a recess until 2 o’clock p. M., December 8,1881. December 8, 1887, at 2 o’clock p. M., parties appeared by counsel,— plaintiff and defendant. The court, being sick, by consent of parties took a recess until 10 o’clock a. m., December 9, 1887. December 9, 1887, 10 o’clock a. M., plaintiff appeared by counsel. After waiting one hour, and none of the defendants appearing by counsel or otherwise, the court, being satisfied from the evidence, determines and adjudges that the plaintiff, G. E. French, have judgment, etc., which judgment is entered in the usual form.” The judgment is against all the defendants except Willes. The return shows that these docket entries were made at the several times such proceedings were had.</p> <p>All the defendants against whom judgment was so rendered, except W. GL French, joined in suing out a writ of cerUorcuri to remove such proceedings and judgment into the circuit court for review. The circuit court reversed the judgment of the justice, and the plaintiff appeals to this court from the judgment of reversal.</p>

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>The following statement of the case was prepared, by Mr. Justice Tatloe as a part of 'the opinion:</p> <p>In the complaint of the appellant, the plaintiff in the court below, there were two causes of action stated at length. The first cause of action was, in substance, an action to recover for a breach of the covenants in a deed of the defendant, by which the defendant undertook to convey to the plaintiff lots 1, 2, 3, 4, 5, and 6, in block 23, in the city of Ashland, for a consideration mentioned in said deed of $6,000. In this cause of action the plaintiff alleges that the said deed contained the following covenants: “ (1) That the defendant was lawfully seised of said block 23 and every portion thereof; (2) that the defendant has good right to convey said block and every part thereof; (3) the defendant guaranties the grantee [the plaintiff], his heirs and assigns, the quiet possession of said block and every portion thereof; (4) that the said deed contained a covenant by the grantor, his heirs and personal representatives, that said block 23 was free and clear from all incum-brances, and that the grantor, his heirs and personal representatives, will forever warrant and defend the title and possession thereof in the grantee, his heirs and assigns, against all claims whatever.”</p> <p>The complaint alleges in proper form breaches of all the covenants in said deed. In the first cause of action it is also stated that in payment of a part of the $6,000, the purchase price mentioned in said deed, the plaintiff gave his promissory notes for the sum of $2,500, and, as security for tbe payment of said sum, be executed a mortgage to tbe defendant upon said block 23. Tbe complaint also alleges that tbe plaintiff bas never been in possession of said block 23 or any part thereof; that be bas not conveyed tbe same or any part thereof by deed or otherwise, nor in any way incumbered tbe same, except by tbe mortgage to secure tbe payment of said $2,500, part of tbe purchase money; and that before bringing this action plaintiff tendered to tbe defendant a deed reconveying said block 23 to tbe defendant, and demanded from him tbe surrender of bis notes for said $2,500, and tbe payment to him of tbe sum of $3,500, with tbe lawful interest thereon, that being tbe sum paid by tbe plaintiff to tbe defendant as a part of tbe purchase price for said block.</p> <p>Tbe second cause of action alleges that tbe defendant was guilty of fraudulent representations in making tbe contract of sale of said block to tbe plaintiff, and asks relief on that ground. In tbe view we have taken of tbe case on this appeal, it is unnecessary to set up tbe facts alleged in this second cause of action. Tbe defendant in bis answer alleges, among other things, “ that at tbe time of said bargain and sale, and for more than ten years prior thereto, tbe defendant was tbe owner in fee and entitled to tbe possession of all tbe land contained in said block 23, and all tbe riparian rights and shore privileges connected therewith,( and duly conveyed tbe same and all thereof to tbe plaintiff by said warranty deed of April 2,1881, as aforesaid, and by tbe delivery of said deed duly delivered to tbe said plaintiff tbe possession and all tbe rights of possession and seisin in, to, and of said block 23 and all thereof as aforesaid.”</p> <p>On tbe trial in tbe court below, tbe circuit judge made tbe following findings of fact and conclusions of law, viz.: “ (1) That on tbe 2d day of April, 1887, at Ashland, Wis., defendant sold to the plaintiff, for tbe sum of $6,000, all of block twenty-three (23) of Ellis’ division of Ashland, according to the recorded plat thereof, in the connty of Ashland, state of "Wisconsin, and duly executed, signed, sealed, and acknowledged, and delivered to the plaintiff as grantee therein, a warranty deed in statutory form of all of the above-described premises; (2) that said Frederick Prentiee was, on the 2d day of April, 1887, the owner in fee of said premises, subject to a mortgage of Edwin Ellis for a portion of the purchase price thereof; (3) that prior to the commencement of this action the said defendant paid to said Ellis the full amount due on account of said mortgage, and then and there became the owner in fee simple of the premises, free and clear of all liens and incumbrances; (4) that at the time of the sale of said premises by the defendant to the plaintiff, the said defendant made no false and fraudulent representations in regard to the title to said premises, or to the quantity of land contained therein; (5) that there has been no breach of covenants contained in the defendant’s said deed to the plaintiff. And as a conclusion of law the court finds that the defendant is entitled to a judgment of no cause of action, and of a dismissal of the complaint, together with the costs herein, and the clerk is hereby directed to enter judgment accordingly.”</p> <p>To the second, third, fourth, and fifth findings of fact the plaintiff duly excepted. He also excepted to the conclusion of law.</p>

<p> Jurisdiction: Notice of motion: Action on judgment. </p> <p>1. An order granting leave to bring an action upon a judgment is not void for want of jurisdiction although notice of the motion therefor was served less than eight days before the order was made.</p> <p>2. When the notice in such case states the amount of the judgment unpaid, the want of service of any affidavit or other paper on which üie motion was founded is not a jurisdictional defect.</p>

<p>APPEAL from the Circuit Court for St. Groix County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday :</p> <p>This is an action of replevin .brought by the plaintiff, as chattel mortgagee, to recover the possession of a pair of steers. The facts are undisputed, and to the effect that October 22, 1887, John F. Brewer and wife, in the absence of the plaintiff but at his request, executed a chattel mortgage on the steers in question to the plaintiff, to secure the sum of $61.67; that said Brewer, at the plaintiff’s request, thereupon took the said mortgage to the proper town clerk’s office, and handed the same to said town clerk, who took the same into his possession, and filed it as of that day, making the following entry in his indexed Book of Chattel Mortgages, to wit: “ John E. Brewer to John Mwrlet, October 21, 1887. $61.67. Dated October 22, 1887; due October 22, 1888.” November 1, 1887, said Brewer sold and delivered said steers to one Blakely for a full and valuable consideration, who then and there purchased the same in good faith and without notice of the existence of said mortgage, and upon the representations of said Brewer that the same were free and clear of all liens, and that there was no chattel mortgage thereon. The next day said Blakely, having heard that there was a chattel mortgage on the steers, given by Brewer, at once went to said town clerk’s office, and in connection with the son of said clerk made a thorough and diligent search among the files and papers of said office and all the chattel mortgage files therein, but no such mortgage or copy thereof could be found in said office. None such, nor any copy thereof, was on file in said office, and neither said mortgage nor any copy thereof has since been on file in said office. November 30,1887, said Blakely, for a full and valuable consideration, sold and delivered said steers to one Pettit, who bought the same in good faith, and without any notice of the existence of any such mortgage, and relying upon the representations of said Blakely at the time of sale that there was no mortgage upon said steers. Thereupon said Pettit heard there was a chattel mortgage on the steers, and at once went to said town clerk’s office, and was then and there informed by said clerk that there was no such mortgage nor any copy thereof on file in his office. December 15, 1887, said Pettit, for a full and valuable consideration, sold said steers to the defendant, who then and there purchased the same in good faith, and without any notice of the existence of any such mortgage, and relying upon information given him by said Pettit, at the time of such purchase, to the effect that the steers were free from any and all mortgage liens, and that he had been informed by the said town clerk that there was no mortgage thereon on file in his office.</p> <p>Said mortgage was never taken from said files or town clerk’s office by the plaintiff, or with his knowledge or consent, and he did not know that the same had been taken therefrom until after the defendant had so purchased said steers. During the time mentioned the said Blakely and Pettit were each and both financially irresponsible and insolvent. Before the commencement of this action the plaintiff demanded said steers of the defendant, who refused to give them up. Them value at the time of such demand was $60.™ The debt on which said mortgage was given has never been paid nor satisfied. The books in the town clerk’s office do not show that the mortgage was ever canceled. The mortgage filed therein was the original and not a copy.</p> <p>Upon the trial of the action a jury was waived, and the facts in the case, substantially as stated, were stipulated by the parties; and the court thereupon found the facts as stated in said stipulation, and, as conclusions of law, that the plaintiff should have judgment for the return of the steers, or for the value thereof in case a return could not be bad, witb six cents damages for tbe detention thereof, witb costs. From tbe judgment entered accordingly upon said findings in favor of tbe plaintiff, tbe defendant appeals.</p> <p>To tbe point that after a mortgage bas been permanently removed from tbe town clerk’s office it is no longer effectual to bold tbe property as against one wbo purchases it in good faith, for a valuable consideration, and witb notice that there is no mortgage against it in tbe clerk’s office, counsel for tbe appellant cited Sternberger v. McSwem, 14 S. C. 36; Woodruff v. Phillvps, 10 Micb. 500; Swift v. Mall, 23 Wis. 532; Wa/rd v. Watson, 24 Neb. 592.</p>

APPEAL ñ-om the Circuit Court for Waukesha, County. The defendant recovered judgment in the circuit court against the plaintiffs for $72.43 costs, At the time appointed for the taxation of costs by the clerk, counsel for plaintiffs appeared, and made formal objection to the sums charged in the bill presented for taxation for several items of - service.

<p>APPEAL from the Circuit Court for Langlade County.</p> <p>Replevin for a quantity of pine logs which had been cut and removed from certain lands in township 35 north, range 12 east. The facts are stated in the opinion. The plaintiff appeals from a judgment in favor of the defendants.</p> <p>To the point that under the contract of sale to him the plaintiff was entitled only to so much of the timber as he should cut and, remove within the specified time, they cited Rich v. Zeilsdorff, 22 Wis. 544; Strassonv. Montgomery, 32 id. 52; Mawtvn v. Gil-son■, 31 id. 360; Golden v. Gloo7c, 57 id. 118.</p>

<p>APPEAL from tbe Circuit Court for Cffwppewa County.</p> <p>Tbe following statement of tbe case was prepared by Mr. Justice Oassoday:</p> <p>This is an action for damage by reason of tbe death of tbe plaintiff’s intestate, caused by a defective highway. It appears from tbe record that tbe Bloomer road runs northerly from Chippewa Palls; that upon, that highway, and about six miles north, from Chippewa Rails, the Cook’s Valley road, so called, branches off and runs in a northwesterly direction to a place called “Cook’s Valley;” that about eighty rods from the Bloomer road the Cook’s Valley road crosses what -is known as “ Duncan Creek,” which at that place comes down on the northeasterly side of that highway, and then crosses to the southerly side of the same, and runs for some distance along that side of it, and then turns and runs nearly south; that in a high stage of water .that creek spreads out over considerable portions of the Cook’s Valley road; that between Chippewa Ralls and Cook’s Valley there was a stage line which carried the United States mail; that one Whittemore had driven that stage during the summer of 1887; that he was again employed in April, 1888, and started on his first trip from Chippewa Ralls about twenty minutes after 7 o’clock on the morning of April 28, 1888, with a single seated buggy, taking with him, as his only passenger, Kate Wiltse, the intestate, a girl between sixteen and seventeen years of age; that it was a stormy morning, raining most of the time.</p> <p>'Whittemore testified to the effect that he was, at the time, upwards of twenty years of age; that he had earned his own living since he was twelve, working about the woods, on the river, and driving livery, stage, etc.; that he reached Duncan creek about 9 o’clock of the morning mentioned; that as he drove down the hill towards the creek he looked across, and could see the bridge all right, about two feet above the water in the creek; that the land between him and the bridge was considerable lower than the bridge; that the water was running over the road in such low portions; that from the looks he thought it was all right; that he drove right along a little ways, and then went out and unchecked the horse, so he could drink; that he started along and drove the horse into the water, where at first it was a little above bis abides, and then went along until tbe water got pretty near up to bis knees; that there then seemed to be a kind of bill, and tbe horse stopped, and then started, when tbe water was about to bis ankles again and dirty; that tbe girl then said, “ I guess we are all right now; ” that be replied that be guessed so; that “ just then tbe horse went right off in on bis bead; ” that tbe “ bole was right in tbe center of tbe traveled track,” and some two or three rods from where be first drove into tbe water; that tbe bridge was some four to eight rods beyond tbe bill;' that “ we went right off into tbe bole on tbe plunge, and swung right around to tbe left, and tipped tbe buggy over; ” that be caught tbe girl with bis left band, and they both fell out of tbe buggy at tbe same time; that be could not tell tbe depth of tbe bole, but that it was something like six or eight feet; that be swam with tbe girl a little piece, and then went under tbe water; that when be came up they were about six feet out from tbe shore; that be caught the brush with bis right band, and then turned around and went under tbe water, and came up eight or ten feet below, and that was tbe last be saw tbe girl before she was dead; that half an hour after tbe accident tbe water in tbe creek was two or three feet higher than when be first drove into it; 'that after going to Chippewa Falls and returning, and between 1 and 2 o’clock of tbe same day, tbe water was five or six feet deeper than at tbe time of tbe accident.</p> <p>Tbe plaintiff was appointed administratrix of tbe estate of said deceased, and commenced this action to recover damages, by reason of tbe girl’s death. Tbe complaint is in tbe usual form in such cases. Tbe answer denies tbe alleged defect in tbe highway, and alleges contributory negligence. At tbe close of tbe trial tbe jury returned a general verdict in favor of tbe plaintiff, and assessed tbe damages at $2,000. They also, in answer to a special ques-</p> <p>tion submitted, found, in effect, that neither the deceased nor the driver with whom she was voluntarily riding was guilty of any want of ordinary care at the time of the accident, which contributed to the happening of the accident. From the judgment entered upon such verdict the defendant appeals.</p> <p>contended, inter alia, that a complaint under sec. 4256, E. S., is not sufficient unless it specifies the particular relatives who are legally entitled to the damages. So far as the complaint in this case shows the deceased may have left a husband and descendants, or a father as well as a mother. Burlington dé M. B. Go. v. Crookett, 17 Neb. 570; Sctffordv. Brew, 3 Duer, 627; Begem v. O., M. dt St. P. B. Go. 51 "Wis. 599. Evidence of the mother’s pecuniary circumstances should not have been admitted. Indianapolis, P. da C. B. Co. v. Pitzer, 109 Ind. 179; Mayhew v. Burns, 103 id. 328; Booney v. Milwaukee Ohair Co. 65 Wis. 397.</p>

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>The appeal is from an order dismissing a petition for the appointment of commissioners to appraise the damages for the taking of certain lands by the railroad company. The petition, which was duly verified, alleges that the plaintiff is the owner of a lot in the city of Oshkosh, fronting upon Rond street on the east and upon Algoma street upon the north, upon which is located its church building; that the defendant company has built a railroad along said Bond street and across Algoma street, and in building the same has raised its track higher than the grade of the street and has built an embankment on the part of Bond street owned by the plaintiff, being a part of its said lot; that the defendant, in building said railroad, has also dug, excavated, and carried away a large quantity of the earth composing said lot in Bond street and Algoma street, and placed upon said lot superstructures which are a constituent part of said railroad, and which the defendant is under legal obligation to maintain permanently on said lot as a part of said railroad, and which it does now maintain; that all of the acts and things done by the defendant as aforesaid were necessitated by the construction of its railroad; that the plaintiff’s lot has been greatly damaged by the construction of said railroad, and by the acts and things done by the defendant thereon, and by the passage of trains over said streets, and by smoke, jarring, and noise from the engines, and has been rendered much less valuable; that the defendant has omitted and refuses to prosecute proceedings for the condemnation of the plaintiff’s interest in said streets and for the assessment of its damages; and that the defendant has not acquired title to the plaintiff’s land or the right to enter thereon and to maintain thereon the said railroad or any part thereof or the said embankment or superstructures, and has not paid the damages sustained by the plaintiff thereby.</p> <p>The defendant did not serve or file any answer to the petition. Upon the hearing the plaintiff claimed that the facts stated in the petition, not having been denied, were to be' considered as established, and that the burden of disproving them was upon the defendant.- The circuit court held that the burden was upon the plaintiff to make out a prima fade case, and the plaintiff introduced his evidence accordingly. The facts shown by the evidence on the hearing will sufficiently appear from the opinion.</p> <p>contended, inter aUa, that the trial court erred in holding that the burden of proof was upon the plaintiff, notwithstanding the defendant omitted to take issue on said petition either by answer or affidavit. Lewis, Em. Dom. sec. 390; Aurora <& O. P. Go. v. Miller, 56 Ind. 88; Tracy v. E., L. & B. S. B. Co. 80 Ky. 259; In re St. Paul Ja N. P. P. Go. 34 Minn. 221; In re Loafoport <& B. P. Go. 17 N. Y. 557; In re Neto York, L. & W. P. Go. 35 Ilun, 220; S. O. 99 N. Y. 12; South GaroUna P. Go. v. Blake, 9 Bich. (S. C.), 228; Wis. Gent. P. Go. v. Cornell University, 49 Wis. 162; S. G. 52 id. 537-541; In re New York Gent. P. Co. 66 N. Y. 407; Shelly v. O., 21. & N. R. Co. 72 Wis. 471. The proofs showed a “ physical interference” by the railroad company with the plaintiff’s land, by the placing of an embankment thereon for the purpose of restoring the street. They showed also an invasion by the company, and the digging and carrying away of the soil which was a part of the plaintiff’s land, and the erection and maintenance of permanent structures thereon. The presumption from the ordinance introduced in evidence by the defendant, and which provides that the location of the railroad shall be along the “ center line of Bond street,” is that the right of way is along such center line, even though the track itself is to the east thereof. If such presumption does not arise then the railroad was not legally built, and the plaintiff can avail itself of ch. 255, Laws of 1889.</p>

<p>APPEAL from tbe Circuit Court for Outagamie County.</p> <p>Tbe defendant, tbe town of Greenville, wbicb is one of tbe towns of tbe plaintiff county, made application to tbe judge of tbe circuit court to appoint commissioners to review tbe assessment for taxation for tbe year 1887 of tbe real estate in that county, as equalized by tbe county board of supervisors. Tbe application was made pursuant to cb: 291, Laws of 1880, as amended by cb. 212, Laws of 1882. Commissioners were thereupon appointed, and on August 8, 1888, filed tbeir report with tbe county clerk. They increased or diminished tbe valuations of real estate as equalized by tbe county board, in ten towns and cities of tbe county, but did not change sucb valuation in tbe town of Greenville.</p> <p>Thereafter each of tbe commissioners presented bis verified account for services and expenses to tbe county board for allowance, and tbe same were allowed by tbe board and afterwards paid by tbe county. Tbe board also allowed and paid a verified account for tbe hire of a team used by tbe commissioners in tbe performance of tbeir duties. These accounts aggregate $1,538.40. One of them is for seventy days’ service as commissioner, $280, and for “ hotel expenses and railroad fare, etc., $171.42.” Tbe accounts of the other commissioners are in tbe same form, but for different amounts. Tbe livery bill is for “ fifty days’ service of livery for commissioners, at $4.50=$225.”</p> <p>This action was brought by tbe county to recover of tbe town of Greenville tbe amount so paid for sucb services and expenses of tbe commission. The' county recovered judgment for tbe sum claimed, and tbe town appeals from tbe judgment.</p>

<p>APPEAL from the Circuit Court for A’em Claire County.</p> <p>The defendant is a physician and surgeon, and was employed to treat a wound received by the plaintiff’s intestate, Hakon Oleson, who afterwards died from the effects thereof. This action was brought under sec. é255, R. S., to recover damages for the death of Oleson, alleged to have been caused by the unskilful and negligent treatment of the wound by the defendant.</p> <p>On March 12, 188Y, the plaintiff’s intestate was engaged with another in splitting a log, when the axe of his fellow-workman flew off the handle, and the edge of the axe struck Oleson a little above the right knee, inflicting a wound from one and a half to two inches in length. The testimony tends to show that the axe penetrated the knee-■joint through the membranes covering it. Oleson resided in Eau Claire, and when injured was at work in the woods some distance from his home. ITis fellow-workman inserted chewed tobacco quids in the wound, bound it up, and took him in a sleigh to Arcadia, the nearest railroad point, about eighteen miles distant. He was then brought on a train to Eau Claire, and taken to his home, reaching there the next morning. "Whether the tobacco quids were removed before he left the woods, or remained in the wound until he reached his home, and whether the wound was bandaged with filthy or clean cloths, are disputed questions in the case.</p> <p>On the arrival of Oleson at his home, Dr. Graff, the defendant, was called to treat him, and first saw him towards noon of that day. He applied what is called the antiseptic treatment, which it is not denied was correct practice, and dressed the wound properly. He called to see Oleson the next day,' but did not remove the bandages. He next visited him March 19th, removed the bandages, and examined and dressed the wound. Hp to this time it is not seriously controverted that the treatment was in strict accordance with the approved rules of surgery. He informed Oleson’s wife that he would not call again until March 27th, unless Oleson grew worse, in which case he left a request that he be sent for.</p> <p>The wound commenced growing worse soon after March 19th, and developed much inflammation, causing great pain. The testimony tends to show that Dr. Graff was sent for March 25th, and informed of Oleson’s condition, but did not visit him again until March 27th. He then found Ole-son in a very bad condition. The limb was much swollen, discharging large quantities of pus, and the patient was suffering intense pain. He again examined and dressed the wound, putting in proper tubes for the discharge of the pus. The testimony tends to show that on this occasion he flexed the limb with violence, causing the patient intense pain. He visited the patient, successively, on March 31st and April 2d, 5th, and 8th, pursuing the same general treatment. On April 9th Ur. Christensen was called in. He removed the bandages, examined the limb somewhat, and then restored the bandages, but did nothing further. He declined to take the case until he could advise with another physician, and until Dr. Graff should be dismissed. Dr. Graff was thereupon dismissed, and on the next day Ur. Christensen, accompanied by Ur. Uay, made an examination of the wound. They became satisfied that in order to save Oleson’s life it would be necessary to amputate the limb, but that such was his condition this could not be done without fatal results, until he could be strengthened. Ur. Christensen thereupon took charge of him, and by tonic treatment succeeded in improving his condition, so that on April 29th the limb was successfully amputated without any very serious shock to the patient. From that time until his death he was under the care of Ur. Pinkerton, the city and county physician. He continued to improve for several weeks after the amputation, and Ur. Pinkerton thought he might recover. Then his symptoms took an unfavorable turn, and he continued to grow worse, until he died from exhaustion on August 12, 1887.</p> <p>A trial of the action resulted in a verdict for the plaintiff, assessing damages at $2,500. A motion for a new trial was denied. The case is further stated in the opinion. Judgment was rendered pursuant to the verdict. The defendant appeals from such judgment.</p>

<p>APPEAL from the Circuit Court for Scmh County.</p> <p>The following statement of the case was prepared by Hr. Justice Taylor as a part of the opinion:</p> <p>This is an action in equity brought against Charles E. Ma/rtin and Walter L. Blossom to compel the specific performance of an alleged contract for the sale and conveyance of three forty-acre tracts of land lying on the shore of Devil’s lake, in this state. The facts, as shown by the evidence, are substantially as follows:</p> <p>The lands in’ controversy were at the date of the alleged contract owned as tenants in common in lee by said "Walter L. Blossom and bis two sisters, Mrs. Harmount and May C. Blossom. Walter L. Blossom was tbe duly-appointed agent of bis said sisters, with full power to manage and sell said lands as be thought best. Tbe three forty-acre tracts in question were a part of tbe real estate owned in common by said Blossom and bis sisters in the vicinity of Devil’s lake, in this state. All tbe lands owned by them as such tenants in common in tbe vicinity of said lake were sixteen forty-acre tracts. These lands appear to have bad little value. Tbe evidence discloses that previous to February, 1888, tbe said Walter L. Blossom, on bis own behalf and on behalf of bis sisters, bad made efforts to sell said lands and tbe whole of them, and for that purpose said Blossom bad employed one Mr. Slye, living in tbe vicinity of such lands, to make sale thereof. Mr. Slye bad up to that time found no purchasers for said lands or any part thereof. Walter L. Blossom resided in Spokane Falls, Washington Territory. In February, 1888, Mr. Blossom came to Baraboo, in tbe vicinity of said lands, for tbe purpose of making sale thereof if be could do so. He failed, however, to make any sales, and then placed tbe lands in tbe bands of Emery & Sbults, real-estate agents at Baraboo, for sale. Tbe evidence tends to show that, before leaving tbe lands in tbe bands of said agents for sale, Mr. Blossom endeavored to make sales of tbe same himself, but did not succeed in so doing.</p> <p>Tbe evidence shows that Mr. Blossom left with said agents prices at which sales might be made by said agents, but gave to said agents no written power of attorney authorizing them to convey said lands or any part of them to purchasers. In tbe price-list furnished said agents, tbe three forty-acre tracts about which this controversy arises were valued together at $500. After tbe lands were left with Emery & Sbults for sale, they placed notices on or near tbe lands stating that tbe lands were “ for sale by D. S. Emery, Baraboo, Wisconsin.” These notices were given with the approval and sanction of Walter L. Blossom. After malting this arrangement with Emery & Shults, Mr. Blossom returned to Spokane Falls. Emery & Shults immediately made efforts to sell said lands, but were unable to make any sales at the prices fixed by Blossom. On March 9, 1888, said agents wrote to Mr. Blossom, and addressed the letter to him at Milwaukee, stating what had been done, and giving a description of the lands as they had found them from examination, but reporting no sales. On the 14th of March, 1888, the agents wrote another letter addressed to Blossom at Spokane Falls, in which they stated they had had an offer from a Mr. Crouch for the three forty-acre tracts of $300, and that Mr. Kirk would pay $10 more for them in order to keep control of the south end of the lake, although Mr. Kirk said it was more than they were worth. On the 21st of March, Mr. Blossom answered these letters by a letter dated at Spokane Falls. In this letter Mr. Blossom says, “ I don’t think $300 enough for the three forties; ” that he considers the forty on the lake worth $500 to any person who wished . to build on the lake; and he says: “ I will throw in the other two forties to any one wishing the property. I will sell the property, and take $450 for the three forties, which I think you will be able to get by waiting until summer, if not now. Hoping to hear that you will succeed in getting this figure for it soon, or very nearly it, I am,” etc. On the 28th of March, 1888, Emery & Shults again wrote to Mr. Blossom. In this letter they say: “ I have seen Mr. MoWhmme, and I think I can get about $400 for the three forties south of the lake; ” and requesting a deed to be forwarded for that tract, leaving the name of the purchaser in blank, and stating that $400 would be a good offer for it. This letter also asked Mr. Blossom to fix ,a price on the entire sixteen forties, stating that they had a man who wanted the least price on all the forties, and saying: “ I think he will give about $900.”</p> <p>On tbe 7111 of April, Emery again writes to Mr. Blossom, stating that he had written several times about his property and had heard nothing from him; also stating that he had a man who wanted to buy the whole, and again asking him to fix a price on the whole and send a deed for the whole to the Bank of Baraboo, to save time. Letters were also written by Emery & Shults to Blossom on April 11th and 19th, in regard to the sale of these lands, stating what offers they had for the lands, and requesting him to fix a price for the whole of the lands; and on April 30th, the two following letters were written: “ [First letter.] Bara-boo, "Wis., April 30, 1888. W. L. Blossom, Spokane Falls, Washington Ty.— Dear Sir: I have written you several letters in regard to your landed property in our vicinity, and as yet have rec. but one letter. I understand that you have written Mr. Slye about your taxes. I have an offer for all your land. Mr. Oharles Martin says he will give you $1,000, and if I remember aright that is what you wanted. What do you say in reply? Yery truly, Emeey & Shults.” “ [Second letter.] Baraboo, Wis., April 30, 1888. W. L. Blossom, Spokane Falls, Washington Ty.— Dear Sir: Mr. E. Mg Whinne has bought your lake property; that is, the three forties south of the lake. We have accepted $50 on the same. This is $125 more than any of the parties at the lake would give. Yery truly, EMERY & Shults.” Witness thinks the letter first above mentioned was written first.</p> <p>Again, on May 21, 1888, Emery & Shults wrote to Blossom the following letter: “ Baraboo, May 21, 1888. W. L. Blossom, Spokane Falls, Washington Ty.— Dear Sir: I wrote you some time ago concerning the sale of the three forty-acre pieces south of lake to E. Mg Whmne for $450, your price, and that I had rec. on same $50 as bind money. The balance, viz., $400, is deposited in bank. And I also wrote that Mr. Oharles Martin had made an offer of $1,000 lor all of the land yon own, and have rec. no answer. If desired, and you wish, he ('Martin) will deed to Me Whinne. Please act on this matter. Send deed to bank {Me Whinne). Yery truly, Embet & Shults.”</p> <p>Emery again wrote to Blossom on June 8th. The following is a copy of that letter: “Baraboo, Wis., June 8, 1888. Mr. W. L. Blossom — Dear Sir: You do not seem to be a very prompt man to do business with. It has been nearly three months since I sold your lake property to E. Me Whinne, viz., the east half of the northwest J, and the northeast ¿ of the southwest -J, of sec. 25-11-6, for $450 cash. Mr. Me Whinne has taken possession of same, and intends to hold it. I have $50 in my hands, and the balance is deposited in the Bank of Baraboo, Wis., awaiting deed. Yery truly, D. S. Embey.”</p> <p>No answer to these several letters was sent by Blossom until the Jth of July, 1888. On July 1th, 1888, Mr. Blossom wrote the following letter to Emery- & Shults: “ Spokane Palis, W. T., July 1,1888. Emery & Shults, Baraboo, Wis.— Gentlemen: I owe you more than an apology for not answering your valued favors before, as you have shown such a business as well, as kindly interest in the handling of our property in your vicinity. In regard to the lake property which Mr. Me Whinne wants, will let him have it in case I cannot sell the whole sixteen forties in a lump, which I much prefer to do. If you can sell them so you can net me twelve hundred dollars, I think there would be good money to the persons buying the land at the figures named. I have just received a letter from Mr. Crouch, asking for particulars in regard to the lands, and will answer him, and refer him to you for any details in the matter. Please see Mr. Martin, and perhaps you can sell the whole to him, and, if he does not want it, think you will have no difficulty in finding another customer for the property at that figure. Yours truly, W. L. Rlossom.”</p> <p>On tbe 13tb of July, 1888, Emery & Shults wrote the following letter to Mr. Blossom: “Baraboo, July 13, 1888. Mr. W. L. Blossom, Spokane Balls — Dear Sir: "We'did rec. a letter from you on the 10th inst. It seems to us that one ought to be a little more prompt in business transactions. You are morally bound to let Mo Whmne have the lake property, but I suppose you can do as you please. I have seen Mr. Martin, and he has agreed to take you at your offer, viz., $1,200 net to you. What he wants of it is more than I can tell. He certainly can’t get his money out of it again, that is, if he expects to sell it. He may trade it in, in that way get something out of it. Martin demands an abstract of the title of all the lands, and when it is ah right your money is ready for you at the bank of Baraboo. Now, Mr. Blossom, I wish you would be a little more prompt in your business with me than heretofore. There isn’t much satisfaction in doing business in a way that one isn’t used to. Mr. Crouch called on me, and he thinks he can’t stand the pressure. Yery truly, Embet & Shults. Will make deed, and send you in a few days. Send on your order for abstract. D. S. Emeey.”</p> <p>On the 18th of July, 1888, Emery & Shults Avrote again to Mr. Blossom. The following is a copy of that letter: “ Baraboo, Wis., July 18th, 1888. W. L. Blossom, Spokane Falls — Dear Sir: I wrote you on the 13th inst., stating that Mr. Mcvrtm would take your place. I kereAvith send deed for same. Mr. Crouch informs me that he will take the place providing you take $200 down, and the balance on time at seven per cent, interest until paid. There is nothing in this offer. He is one of these hangers on. I never have been able to make a single deal with him since I have been in the real estate biz. He (Crouch) has often told me that he would take different pieces, but never succeeded in closing a deal yet. I have lost all confidence in Avhat he says. He wants the land for $1,200, you to pay commissions. Hoping that we will be able to bring tbis matter to a close soon, we remain, very truly, Emeey & Shults, Baraboo, Wis.”</p> <p>On July 20, 1888, Mr. Blossom wrote to Emery & Shults the following letter: “ Spokane Falls, July 20,1888. Messrs. Emery & Shults — Gentlemen: Your favor of the 13th inst. is just at hand, and I have executed deed to all lands about Devil’s Lake to Mr. Charles Martin, and forwarded same to a sister who lives in Detroit for her signature. Mr. Marlin can easily satisfy himself of the title to our property by an examination of the records, as there have been very few transfers; but, in case he desires an abstract, please have one made, and present voucher for same, together with check for balance to make twelve hundred dollars, and the cashier of the Bank of Baraboo will deliver the deed to you. My sister will forward the deed direct to the bank, from Detroit, and it should not be more than three or four days in arriving. Yours truly, Waltee L. Blossom.”</p> <p>As the result of this correspondence, Blossom and the other owners conveyed all the lands to the defendant Mart/in for the sum of $1,200 cash. Upon the trial, the evidence showed conclusively that Mr. Martin had full knowledge of all the facts in relation to the contract of sale of the three forties by Emery & Shults, claiming to be agents of the Blossoms, before he purchased said lands from the said Blossoms.</p> <p>The evidence shows that after the contract made by Me Whinne for the purchase of said lands from Emery & Shults, as agents of the Blossoms, he paid $50 on the purchase, and deposited the balance in the bank to await the receipt of the deed. And it also shows that, immediately after making the agreement with said agents, Me Witinne entered into the possession of the lands described, and made improvements thereon; and the evidence tends to show that such, possession was known to tbe agents, and also to tbe said defendant Martín before be purchased said lands of tbe Blossoms. Tbe evidence also shows that on tbe 8th of June, 1888, D. S. Emery, as agent of tbe Blossoms, made a contract in writing with said E. Mo WM/rme for tbe sale of said three forties of land. Tbe following is a copy of said contract:</p> <p>“This agreement made this 8th day of June, 1888, between W. L. Blossom, of Spokane Balls, Washington Territory, party of tbe first part, E. Mo Whinne, of Baraboo, Sauk county, Wisconsin, party of tbe second part, witness-etb that said first party has sold to said second party, and said second party has purchased, the east half of tbe northwest quarter, and tbe northeast quarter of tbe southwest quarter, of section number twenty-five (25), in township number eleven (11) north, of range number six (6) east, in Sauk county, for tbe sum of four hundred and fifty dollars, to be paid as follows: $50 down, receipt of which is hereby acknowledged by said first party, and the balance on receipt of a deed of warranty of said land, conveying a perfect title thereto to said second party, Bee and clear from all liens and incumbrances; such deed to be ready for delivery at the Bank of Baraboo, in Baraboo, Wisconsin, as soon as the same can be procured from Spokane Balls, Washington Territory, where said first party now is, not later than August 1st next. [Signed] W. L. Blossom. Per D. S'. Emery, Agent. E. MoWhiNNE.”</p> <p>After hearing all the evidence in the case, the learned circuit judge made the following findings of fact, viz.:</p> <p>“ That on the 21st day of March, 1888, Emery & Shults, real-estate agents of Baraboo, Wisconsin, were the agents of said Walter L. Blossom, of Spokane Balls, Washington Territory, for the purpose of negotiating as to a sale of the lands of said Blossom described in the complaint, authorized to get offers for said lands, and report the same to said Blossom; and that prior thereto, and while such agents as aforesaid, they had obtained offers for said land and reported the same’ to said Blossom. That on the said 21st day of March said Blossom wrote to D. S. Emery, one of said agents, a letter in regard to and referring to said land, in which he states: ‘ I wish to sell the property, and will take four hundred and fifty dollars for the three forties, which I think you will be able to get by waiting until summer, if not now. Hoping to hear that you will succeed in getting this figure for it soon, or very nearly it, I am yours very truly, W. L. BlossoM.’</p> <p>“ That on the 27th day of March, 1888, said agent Emery showed or read said letter to the plaintiff, and said plaintiff at once accepted the offer therein contained, paid fifty dollars towards the purchase price of said lands, deposited the balance in the Bank of Baraboo, to be paid to said Blossom on receipt of the conveyance, and went into possession of said property, and made the hnproveihents mentioned in the complaint.</p> <p>“ That on the 30th day of April said agents, Emery & Shults, notified said Blossom of the said acceptance of the said offer, in a letter written on said day, wherein they say:</p> <p>‘ Mr. Mg Whinne has bought your lake property, that is, the three forties south of the lake. We have accepted $50 on same.’ That inclosed in said letter was a deed of said property to be executed by said Blossom, with the consideration therefor filled in, being $450, to Mg Whinne.</p> <p>“ That on the 21st day of May said agents, Emery & Shults, wrote to said Blossom a letter in which they state: ‘ I wrote you some time ago concerning the sale of the three forty-acre pieces south of lake to E. Mg Whinne for $450, your price, and that I had rec. on same $50, as bind money. The balance, viz., $400, is deposited in bank. And I also wrote that Mr. Charles Ma/rtim, had made an offer of $1,000 for all of the land you own, and have rec. no answer. If desired, and yon wish, be (Martin) will deed to Me Whinne. Please act on this matter. Send Me Whinne deed to bank.’</p> <p>“ That on the 8th day of June, 1888, said Emery, acting as agent for said Blossom, entered into the written contract mentioned and set ont in the complaint, with said plaintiff; and on the same day said Emery wrote to said Blossom a letter, in which he states: ‘ It has been nearly three months since I sold your lake property to E. Me Whirnie, viz., the east £ of the northwest -J, and the northeast \ of the southwest of sec. 25, T. 11, R. 6, for $450 cash. Mr. Me Whinne has taken possession of same, and intends to hold it. I have $50 in my hands, and the balance is deposited in the' Bank of Baraboo, awaiting deed.’</p> <p>“ That said Blossom received all of said letters in due course of mail, but failed and neglected to make any reply thereto, or to send any communication whatever to said plaintiff or to said agents, until the Ith day of July, 1888, when he wrote to said agents a letter, in which he does not in any manner repudiate their authority to act for him, or direct them to rescind their said sale to said plaintiff, and that he never has in any manner notified the plaintiff of any rescission of said contract or repudiation of said sale.</p> <p>“That said letter of Blossom’s dated March 21st, the showing of it by said Emery to the plaintiff, the acceptance of the offer therein contained by the plaintiff, the paying of some portion of the purchase money by the plaintiff, the letters of Emery & Shults above mentioned, the taking possession by the plaintiff of the property and making improvements thereon, and the depositing of the balance of the purchase money by the plaintiff, and the delay of Blossom after being informed what Emery as his agent had done, together with all the facts and circumstances proven, constitute a contract binding on Blossom, and obligating him to convey said lands to the plaintiff.</p> <p>“ That the written contract of June 8th neither added anything to, nor took anything away from, the binding force of the contract above mentioned.</p> <p>“ That, prior to the acceptance by the defendant Martín of the conveyance of the land described in the complaint to him, the defendant Martin had notice of all the facts above mentioned.”</p> <p>The court, upon these findings, adjudged that the plaintiff was entitled to the relief demanded in his complaint, and judgment was entered accordingly, from which. judgment the defendant Martin appealed to this court. Exceptions were taken by the said defendant Martín to all the findings of fact separately. On the trial the learned circuit judge permitted the plaintiff to amend his complaint, so as to make it confonn to the findings of fact in the case. To this the defendant Martín objected, and alleges it as error in this court.</p> <p>contended, inter alia, that the trial court erred in receiving or considering evidence of any contract other than the one set up in the original complaint, and in allowing the complaint to be amended after the findings were made, so as to conform to'the facts found. The claim of the plaintiff was that on June 8, 1888, Mr. Blossom, acting by Emery as his agent, entered into a written contract for the sale of the land; and the complaint did not show that any other fact was or would be relied upon or proved. And yet the plaintiff recovered upon an entirely different contract. Shernecker v. Thein, 11 Wis. 556; Button v. Schuyler’s S. T. B. Bine, 40 Hun, 422; Johnson v. Fillii/ngton, 39 Wis. 62; Bewark v. Garter, 117 Ind. 206; King v. McKella/r, 94 N. Y. 311; Nichols v. Barkm, 19 Mo. 264; Kanes v. D. de S. K. Bi. Go. 40 Ohio St. 95; Barrett v. Wheeler, 66 Iowa, 560; Niagara Go. Nat. Bank v. Bord, 33 Hun, 557. Emery had no authority to execute the written contract. The trial court correctly found that Emery & Shults were the agents of Blossom for tbe purpose of getting offers for tbe land and reporting tbe same to bim. That was tbe extent of tbeir authority. Hamer v. Sharp, 41 L. J. Cb. 53; S. C. L. R. 19 Eq. 108; Armstrong v. Lowe, Y6 Cal. 616; Duffy v. Hobson, 40 id. 240; Milne v. Kleb, 44 N. J. Eq. 3Y8; Stewart v. Pickering, Y3 Iowa, 652; Stillman v. Fitzgerald, 3Y Minn. 186. Tbe letter of March 21 did not amount to an offer to sell, which tbe plaintiff could accept. It was merely private instruction by a principal to bis agent. Haydoek v. Stow, 40 N. Y. 363; Stewart v. Piekeri/ng, Y3 Iowa, 652; Stillman v. Fitzgerald, 3Y Minn. 186. If it be said that Blossom bad ratified what Emery as bis agent bad done, that could only bind tbe interest of Blossom himself. Blossom bad no power to delegate to any other person tbe authority be bad to act for bis sisters. Chitty on Cont. (11th Am. ed.), 296 and note; Parsons on Cont. 82, 83. And there is nothing in any part of tbe case which professes to bind tbe interest of either of those sisters.</p> <p>They argued, among other things: (1) Tbe agents of Blossom bad authority to execute tbe written contract set out in tbe complaint. Tbe agent who is authorized “ to sell ” is authorized, not merely to get offers for bis principal, but to close a binding bargain for tbe conveyance of real estate. Mecbem, Agency, sec. 321; Farnham v. Thompson, 34 Minn. 330; Johnson v. Dodge, 11 Ill. 433, 440; Peabodp v. Hoard, 46 id. 242, 245; Watson v. Sherman, 84 id. 263,. 26 Y; Jaekson v. Badger, 35 Minn. 52; Pringle v. Spaulding, 53 Barb. 1Y; Haydoek v. Stow, 40 N. Y. 363; Lyon v. Pollock, 99 IJ. S. 668; Matthews v. Sowle, 12 Neb. 398; Hopwood v. Borbim, 63 Iowa, 218. (2) Tbe letter of March 21 contained an offer which, when accepted, bound Blossom. Hollis v. Burgess, 3Y Kan. 48Y. (3) There was a vabd contract which could be specifically enforced, independent of the written contract set out in the complaint. (4) There was a ratification of the acts of the real estate agents. To this point counsel cited, besides the cases referred to in the opinion, Pratt v. Putnam, 13 Mass. 361; Brigham v. Peters, 1 Gray, 139; Kichols, Shepard c& Oo. v. Shaffer. 63 Mich. 599; Pitts v. Shubert, 11 La. 286, 30 Am. Dec. 718; Lorie v. A. G. G. P. Go: 32 Fed. Hep. 270; Oañrnes v. Bleecker, 12 Johns. 300. (5) The acts of the real estate agents were binding not only upon Blossom but upon his two sisters. Batifica^ tion by Blossom of the sale by Emery was binding upon Blossom’s co-owners; for Blossom himself had authority to make such sale, and the legal effect of ratification of an act is to make it the act of the person ratifying.' The authority to employ a sub-agent passed to Blossom in this case by implication. Mechem, Agency, secs. 193, 194, 196; Story, Agency, sec. 210; Bodine v. Exchange F. Ins. Go. 51 N. Y. 117; Pewwick v. Ba/ncrofb, 56 Iowa, 527; Saveland v. Green, 40 Wis. 432; Dorchester Bank v. K. E. Bank, 1 Cush. 177. (6) It was not error to allow the complaint to be amended so as to conform to the facts proven. Sclvwnaker v. Hoeve-ler, 22 Wis. 43; Gill v. Pice, 13 id. 549; Giffert v. West, 33 id. 621; SchieffeUn v. Whipple, 10 id. 81; Pope v. ATMs, 115 U. S. 363; Patterson v. Keystone Mining Oo. 30 Cal. 360; Garson v. Pailsback, 3 Wash. 168; Piggs <o. Ghapin, 7 N. Y. Supp. 765; Abernathy v. Seagle, 98 N. C. 553; Engel v. Hardt, 56 Wis. 456.</p>

<p>APPEAL from tbe Circuit Court for Saule County.</p> <p>Tbe following statement of tbe case was prepared by Mr. Justice Cassoday :</p> <p>Tbe firm of Hagenabs & Geffert, composed of Geffert and John H. and Peter Hagenab, was in business, dealing in hardware, agricultural maebinery, etc., from June, 1874, to January, 1883, when it was dissolved. In January, 1883, tbe firm of J. & P. Hagenab, composed of J. H. and Peter Hagenab, was formed, and carried on a similar business from January, 1883, to July 8, 1889. June 28, 1888, tbe said J. & P. Hagenab executed two promissory notes, eacb payable to Hibbard, Bfpmcer, Bartlett da Go. (a corporation organized under tbe laws of Illinois) or order, one for $5,000 and interest, and tbe other for $3,226 and interest, eacb accompanied by a warrant of attorney authorizing tbe entry of judgment thereon. July 1,1889, tbe said firm of J. & P. Hagenah. was indebted to sundry persons in a large amount in addition to said Hibbard, Spencer, Ba/rtlett da Go. in' the sum of $9,310.36, and Cribben, Sexton & Co., $471.81. July 3, 1889, said John II. Hagenah received a letter from one Stoddard, the credit man of Hillard, Spencer, Ba/rtlett, da Co., from Chicago, to the effect that he wmuld soon be at Reedsburg, and was going to help him (Hagenah) out of the bush. July 3, 1889, the said Cribben, Sexton & Co. sold, assigned, and transferred their said indebtedness and account against the said firm of J. & P. Hagenah to said Hibbard, Spencer, Baadlett da Go. July 5, 1889, the said John H. Hagenah went to Chicago, to see Hibbard, Spencer, Bartlett da Co., and did seé them and said Stoddard on Saturday, July 6, 1889, and was then and there informed by said Stoddard, in effect, that he would be in Reedsburg on the following Monday evening, and would help him out of the bush. John II. Hagenah thereupon returned to Reeds-burg on Sunday morning, July 7, 1889.</p> <p>Cn Monday morning, July 8, 1889, the said John II. Hagenah informed the firm of Morse, Winchester & Keith, known as the Citizens’ Bank of Reedsburg, of his trip to-Chicago, his indebtedness to Hibbard, Spencer, Bartlett da Go., and the fact that he expected one of their men at Reedsburg that day. Thereupon John H. & Peter Hag-enah executed to the said Citizens’ Bank a note for $3,500,. and a chattel mortgage upon their entire stock of hardware, machinery, tinware, and all stock of every description on the premises described, to secure the same, which note and chattel mortgage was given as a renewal of a similar note and mortgage given by them, but not filed, about two weeks before. After the delivery of such mortgage to the Citizens’ Bank, and the filing of the same,' the said Citizens’ Bank thereupon took possession of the mortgaged property. Upon the evening of the same day said Stoddard came to Reedsburg from Chicago, and, after ascertaining the situation, and that the Citizens’ Bank bad obtained ■ and filed said chattel mortgage, he thereupon obtained from the said J. & P. Hagenah a note executed by them, dated on that day, payable to Hibbard, Spencer, Bartlett c& Go. or order, for $9,787.17 with interest at eight per cent., secured by chattel mortgage, duly filed, on the same property described in the mortgage to the Citizens’ Bank. On the same evening the said Stoddard obtained from the said J. & P. Hag-enah an instrument in writing, of which the following is a copy: “ASSIGNMENT oe Acoounts. For value received, we do hereby sell, assign, and transfer unto Hibbard, Spencer, Bartlett c& Go., of Chicago, Ills., all the accounts contained in this ledger, covering accounts due us. J. H. Hagenah. Peter Hagenah. Dated July 8, ’89.” July 9, 1889, the several insurance policies on said mortgaged property were assigned by said J. & P. Hagenah to Hibbard, Spencer, Bartlett c& Go. and the Citizens’ Bank, mortgagees in possession. At the several dates of July 9, 10, and 15, 1889, the said John H. and Peter Hagenah, respectively,'gave deeds of their individual property to their individual creditors.</p> <p>July 20, 1889, the plaintiff commenced this suit against John H. and Peter Hagenah. August 5, 1889, the said Hibbard, Spencer, Bcortlett <& Go. was summoned as garnishee in said action. August 13, 1889, the said Hibbard, Spencer, Bartlett <& Go. answered said garnishee, and denied any and all indebtedness to the said J. & P. Hagenah, and also denied having in its possession any property belonging to them. August 17, 1889, the plaintiff tooir issue on said garnishee answer. August 19, 1889, the plaintiff recovered judgment by default against the said John H. & Peter Hagenah for $868.41.</p> <p>Upon the trial of said garnishee action, and under the direction of the court, the jury found in effect as matters of fact (1) that the property so covered by the chattel mortgage so given to said Citizens’ Bank was sold by them under the stipulation on file for tbe sum of $3,900; (2) that said Citizens’ Bank, before tbe sale mentioned, sold a part of said mortgaged property to tbe amount of .$125, of wbicb $81.37 was received by tbem in cash; (3) that said Citizens’ Bank incurred expenses on account of tbe seizure, custody, and sale of said mortgaged jaroperty to tbe amount of $107.51; (4) that said Citizens’ Bank was entitled to interest on tbe mortgage debt, amounting to $44.34; (5) that said Bbibbcwd, Spencer, Bartlett & Co. bad collected upon tbe ledger accounts so assigned to it tbe sum of $533.87, and that for $333.24 thereof it bad taken promissory notes from tbe persons from whom sucb accounts were due; (6) that said chattel mortgage to said Citizens’ Bank was and is a valid security, and tbe mortgagees therein were entitled to bold tbe proceeds of tbe mortgaged property so sold for tbe amount of their debt, interest, and expenses, as above found, less tbe amount of sales made by.tbem prior to tbe final sale, to wit, for the'sum of $3,526.85, and'that tbe balance of said $3,900, being $373.15, should be paid into court, to be disposed of as tbe judgment therein should provide; (7) that tbe said chattel mortgage so given to Hibboe'd, Spencer, Bartlett <& Co., as well as tbe assignment of tbe accounts of tbe firm of J. & P. Hagenah to said corporation, was made for tbe benefit thereof, and for tbe benefit of tbe firm of Cribben, Sexton & Co. to tbe amount of $476.81, being tbe accounts so assigned by them to said corporation, and that said mortgage and assignment were and are fraudulent and void, as being in effect an assignment for tbe benefit of creditors, not executed as prescribed by law; that said Hibbard, Spencer, Bartlett <& Co. was chargeable as sucb garnishee for and on account of said $373.15, and for and on account of said book-accounts so assigned to it as above found, and for tbe collections realized therefrom and tbe promissory notes taken on account thereof; that tbe said Citizens’ Bank was in no manner chargeable as garnishee in tbe action.</p> <p>Thereupon judgment was entered against the said Hib-bard, Spencer, Bartlett <& Go., as such garnishee, for the said sum of $533.87, and $373.15, making $907.02, and the same was thereupon directed to be paid over to the receiver appointed in said action, and by him to be thereupon paid as therein directed. Erom that part of said judgment in favor of the plaintiff and against the said Hibbard, Spencer, Bartlett Go., said corporation appeals.</p>

<p>APPEAL from the Circuit Court for Chippewa County.</p> <p>Action to set aside, and to have declared null, void, and fraudulent as to creditors, three chattel mortgages executed by the defendant Henry Michelstetter to the defendants Morris Michelstetter, Arthv/r Michelstetter, and T. J. Cwn-rnmgham, respectively, and a sale of the property under said mortgages to the defendant Morris Michelstetter, and to enjoin said Morris Michelstetter from prosecuting an action against the plaintiffs Wevner, and Quyon (the sheriff and his deputy) for a conversion of said property, which had been sold by them under and by virtue of an execution issued upon a judgment in favor of the plaintiff Mackey and against the defendant Henry Michelstetter. The plaintiff Mackey was himself .the purchaser at said execution sale. The defendants Jansen, McClurg, and Smith are creditors of Henry Michelstetter, the mortgagor, and had attached the property in question after the execution of the mortgages and the sale thereunder to Morris Michelstetter, and before the issuance of the execution in favor of the plaintiff Mackey. A part of the relief demanded is that the hen of said attaching creditors be determined, either as prior to that of the plaintiff Mackey or as subject thereto. Other facts stated in the complaint will sufficiently appear from the opinion.</p> <p>The defendants the Michelstetters and Cunningham demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and appealed from an order overruling such demurrer.</p>

<p> Publication of list of unredeemed lands sold for taxes: Agreement for less than statutory compensation: Estoppel. </p> <p>Where the number of descriptions in the list of unredeemed lands sold for taxes is less than three thousand, the printer publishing such list is entitled to the compensation prescribed by sec. 1174 R. S., even though he agreed to publish the same at a less rate.</p>

<p>APPEAL from the Circuit Court for Ohvppewa County.</p> <p>This action was commenced in September, 1888, to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the agents and employees of the defendant company operating a train of cars upon its railroad. At the time of the alleged injury (November 14,1885) the plaintiff resided eight miles from Boyd, a station on the Wisconsin Central Railroad, understood to be about eighteen miles east or northeast of Chippewa Falls. . She was then thirty-three years old, was a healthy woman, and had a husband and several children. On the morning of the day last aforesaid, she purchased a ticket on said Central Railroad to Eau Clame and return, and went to Eau Claire on that railroad. She had with her two of her children,— a girl six years old, and another eighteen months old. The Central road going from Boyd to Eau Claire passes through Chippewa Fails and a flag-station called Badger Mills, about midway between Eau Claire and Chippewa Falls, and distant some five or six miles from each of those places. The railroad of the defendant company (which for convenience will be called the Omaha road) extends from Eau Claire to Chippewa Falls and beyond. It is understood that the two companies occupy the same depot in common at Eau Claire. At Badger Mills the two roads are within twenty feet of each other, but'at Chippewa Falls the two depots were a considerable distance apart at that time. The Omaha road from the latter point diverges from the Central road to the northwest, and does not go to Boyd.</p> <p>About noon of November 14, 1885, the plaintiff went to the depot at Eau Claire, and upon a train on the Omaha road, going north to Chippewa Falls and beyond. She testified that, as she went upon the train, she showed the conductor thereof her return ticket on the Central road, and he assisted her to go upon the train with her children. Her counsel concedes, however, that this was a brakeman, instead of the conductor. The conductor testified that he did not see the plaintiff until after the train started. The brakeman testified that he saw the plaintiff at the train, and asked her if she was going to Chippewa Falls, and she answered, “Yes;” also, if she had a ticket on the Omaha, to which she answered “Yes;” and that he then assisted her to go upon the train. He further testified that he did not require her to show her ticket (as he should have done) because she was burdened with her children and several bundles, and he thought it would be inconvenient for her to do so.</p> <p>Soon after the train left Eau Claire, the conductor called upon the plaintiff for her ticket, and she presented to him her return ticket to Boyd on the Central road. He did not retain it. The plaintiff testified that he said nothing to her, or nothing she understood. It appears that the plaintiff is a French woman, and could neither speak nor understand the English language. She further testified that, when the train stopped at Badger Mills, tile conductor took her little girl by the hand and led her out of the car. She followed them, and he helped her. off the cars with her children and bundles, saying nothing to her, and the train moved on. The conductor testified that when plaintiff presented her ticket he told her he could not honor it, and she would have to pay her fare to Chippewa Falls, and that she said in broken English she had no money; that he told her if she had no money, she had better get off at Badger Mills, and take the Central train there, on account of the location of the depots at Chippewa Falls, because at the latter place she would require money to get to the Central depot. The brakeman testified that, by direction of the conductor, he assisted her to get off the train with her children and packages.</p> <p>Badger Mills was a flag station for both roads. Tip to the preceding February the Central company kept a man there to flag trains on that road when there were passengers for such trains. At that time the flagman died, after which either his widow, or persons who desired to go upon the road, would flag approaching trains. The Central company had a depot there, but it was closed. There was also a dwelling-house near the depot and tracks, which, at the time the plaintiff was left there, was occupied as a residence by the widow of the flagman, but at that particular time she was absent a few hours at the house of her son, half a mile distant, and her house was closed and locked during the time plaintiff was there. The depot was also closed and fastened. The only other building there was an open shed. There were several other dwelling-houses within about half a mile of the depot, but none in sight of it.</p> <p>The weather seems to have been quite cold and inclement, and the plaintiff and her children were not very warmly clad. She tried to get into the depot, and into the dwelling-house, but 'failed. She went into the shed, but after-wards left it and waxidered up and down the track looking for assistance. She wrapped her shawl about her infant to keep her from freezing. She was greatly frightened by her situation, and feared they would ah perish. After she had been there about an hour, — perhaps a little less, — a gentleman came along the track to where she was. She could not make him understand her by talking to him, but showed him her return railroad ticket, which explained to him the situation. He humanely remained with her. until a train from Eau Claire upon the Central road approached. He flagged and stopped it and put her and her children on board of it. It is a matter of regret that the name of this gentleman is not disclosed, for it would be a pleasure to record it here. When the plaintiff got on the train her infant was chilled almost or quite to the point of insensibility, but the conductor and a lady passenger soon restored it by rubbing its limbs, and it does not appear that any bad results followed. The plaintiff met her husband at Boyd. She was very ill, but was so far restored by stimulants or warm drinks that she was able to ride home in a wagon the same evening. The testimony shows that she was seriously ill after that time for many days, and tends to show that she still suffers from the shock to her nervous system. She was five months advanced in pregnancy at the time, but had no miscarriage, and it does not appear that the child of which she was delivered four months later was injured by her exposure.</p> <p>The conductor of the Omaha train, who thus left the plaintiff at Badger Mills, testifies that shortly thereafter the company questioned him concerning the affair, and the brakeman testifies that he was asked about it two or three weeks after it occurred, but does not say by whom. This is all the testimony tending to charge the defendant company with, knowledge, before this action was brought, of the conduct of such conductor and brakeman on the occasion in question, or of what the plaintiff claimed their conduct to have been. The court, among other things, charged the jury as follows: “ If you believe from the evidence that the defendant is hable, and that the wrongful act was done in a reckless or wanton manner, or that there were circumstances of aggravation in the conduct of defendant’s servants, you will not be limited in assessing damages to the actual or compensatory damages, but may give the plaintiff a further sum as exemplary damages by way of punishment for the wrongful act and as an example to others; and for such damages you may assess such sum as you deem just under the circumstances of the case as shown by the evidence.”</p> <p>Motions for a nonsuit, and that a verdict be directed for the defendant, were respectively denied by the court. The jury found for the plaintiff and assessed her damages at $5,000. A motion by defendant for a new trial was denied, and judgment entered for the plaintiff pursuant to the verdict. The defendant appeals from the judgment.</p>

<p>APPEAL from tbe Circuit Court for Walworth County.</p> <p>Action to recover for personal injuries sustained by tbe plaintiff and alleged to bave been caused by tbe negligence of tbe defendant’s employees. Tbe facts will sufficiently appear from tbe report of a former appeal in Y4 "Wis. 239. Tbe facts shown on tbe second trial were substantially tbe same as those shown on tbe first, except so far as indicated in the following opinion. On tbe second trial tbe jury assessed tbe plaintiff’s damages at $18,500. Tbe defendant appeals from a judgment in favor of tbe plaintiff.</p>

<p>Libel : Appeal. (1) Envelopes of assoeialion for collecting bad debts. (2) IAst of delinquent debtors. (3) Liability of member causing publication. Q,-7) Evidence: Publication: Special damage: Reputation. (8) Instructions to jury: Immaterial error: 'Waiver. (9) Certificate to bill of exceptions.</p> <p>1. Envelopes addressed to a debtor and having printed thereon, in a manner calculated to attract special attention, the name of an association and the statement that it is for collecting bad debts, are libelous, and the sending of such envelopes through the mails is a sufficient publication.</p> <p>2. A list of delinquent debtors, published by an association for collecting bad debts and sent to all its members throughout the United States and-Canada, is not a privileged communication. The printing of a person’s name in such list is libelous, and the distribution of a book containing the list among the members of the association is a sufficient publication.</p> <p>3. A member of the association who caused the sending of such envelopes and the printing of the name in such list, is responsible for the libel.</p> <p>4. It being stated in the book containing such list that it is placed in the hands of all members of the association, and such book being in the hands of one member, who refused to give credit to a person whose name was in the list, the presumption is that the book was distributed as stated.</p> <p>6 .In an action for the libel by the person to whom credit was refused, the plaintiff was properly allowed to testify that the person refusing him credit exhibited such book to him.</p> <p>6. In such action it was sufficient to show that the plaintiff was refused credit on account of the book, without showing that the person refusing the credit had ever trusted him or would have trusted him but for the book.</p> <p>7. In such action the plaintiff could not properly be asked how many persons he owed besides the defendant. His general character or reputation only could be shown.</p> <p>8. A statement in the charge to the jury that “the evidence shows three letters, I think, were mailed,” etc., when there were in fact but two, is held not a material error. In such a case counsel should suggest the correction of the error at the time; otherwise it will be deemed to have been waived.</p> <p>9. A certificate to a bill of exceptions regularly signed by the judge, that “ the above and foregoing was and is all the testimony given on the trial of the above-entitled action,” is sufficient.</p>

<p> Railroads: Injury to ¡person at street crossing: Unlawful rate of speed: Contributory negligence: Court and jury. </p> <p>1. To run a train at an unlawful rate of speed within the limits of a city is negligence.</p> <p>2. When a traveler -on a public street in a city approaches a railway crossing he may properly assume, if nothing appears to the contrary, that a train is moving at a lawful rate of speed; and if it was moving at an unlawful rate, that fact may be considered in determining the question of contributory negligence.</p> <p>8. In an action for injuries sustained at a railway crossing in a city, the testimony tended to show, among other things, that when between fifty and sixty feet from the crossing the plaintiff looked in the direction from which the defendant’s train was coming, and did not see it, though he could have seen it had it then been within 900 feet of the crossing; that his attention was diverted by the conduct of his horses, so that he did not look again in that direction until he reached the track, when the train was so near that a collision could not be avoided; that the train was running thirty-six miles or more an hour, and that no warning was given as it approached the crossing : and that if the train had been 900 feet away when the plaintiff first looked, and had been running at the lawful rate of six miles an hour, he would have passed far beyond the crossing before the train reached it. Held, that it could not be said, as a matter of law, that the plaintiff was guilty of contributory negligence.</p> <p>4 Although the statute did not require the whistle to be blown at that place, if those in charge of the train saw the plaintiff approaching the crossing and believed that he was unaware of the train’s approach, it was their duty to sound the whistle as well as to take every other reasonable precaution to prevent the collision.</p> <p>5. It was not error to charge that it was the peculiar province of the jury to decide whether the whistle was blown at the whistling post, or the engine hell rung before and while passing over the crossing, as well as the rate of speed at which the train approached the same.</p>

<p>APPEAL from the Circuit Court for Orcmford County.</p> <p>The appeal is by MarUn Coleman from the judgment in the action granting to the plaintiff the relief demanded in the complaint, and also from the following order theretofore made:</p> <p>“ [Title.] The above-entitled action having been called for trial in its regular order upon the calendar at the November general term of said court for the year 1886, and one Momtin Oolemcm, a stranger to the record in this action, having appeared by Messrs. Webster & Miller, his attorneys, and applied to the court upon an affidavit filed to become a party defendant in this action and to defend the same in his own behalf, but applied at the same time for a continuance of the action for the purpose only of putting in an answer; and it appearing to the court by the admitted statement of counsel that said Mwrtím, Oolemcm was fully aware of the existence of this action long prior to this term of said court, and had ample opportunity to make and tender an answer herein and prepare for trial at this term of said court: Now it is hereby ordered that the said Mwrtím, Oolemcm may be made a party defendant in this action and be admitted to defend the same in his own behalf upon the following terms, namely: That the said Mwrtím, Oolemcm pay to the plaintiff’s attorney imstcmter the sum of ten dollars terms, together with the witness fees of plaintiff’s witnesses incurred at this term; and that upon such payment said action be continued for the term, and that said Mwrtím, Oolemcm have twenty days from this day in which to make and serve an answer in this action, but that in default of such payment the plaintiff may proceed at once with the trial of this action. Done in open court at the November general term of said court for the year 1886, and dated this 13th day of November A. D. 1886. By the court. Geo. OlemeNtsoN, Judge.”</p> <p>Other facts will appear from the opinion.</p>

<p>APPEAL from the Circuit Court for Orawford County.</p> <p>Action to foreclose a mortgage. The separate answers of the defendants set up several defenses, including payment and a former adjudication of the matters mentioned in the complaint. The facts will sufficiently appear from the opinion. The plaintiff appeals from a judgment dismissing the complaint.</p>

<p> Easements: Bight of way: Ambiguity in grant: Practical construction: Alteration of boundaries by re-survey. </p> <p>A right of way from the land of the grantee to a public road was, by the terms of the grant, to be “ on or near” a certain boundary line which, at the nearest point (its eastern end), was about twenty rods south of the road. As located by the grantor and used by the grantee for many years, the right of way began to diverge from said boundary line at the western end thereof, and reached the road at a point about north of the eastern end. A re-survey afterwards established the boundary line about three rods further south than the • parties had supposed it to be. Held, that the grantee was still entitled to the right of way as originally located and used, and that the grantor could not compel him to follow a route nearer to said boundary line. The grantee was also entitled to a right of way over said three rods by the shortest practicable route.</p>

<p> Easements: Ejectment. </p> <p>An action of ejectment cannot be maintained to recover a mere easement.</p>

<p> Criminal law: Time for settling bill of exceptions. </p> <p>The bill of exceptions in a criminal action must be settled and signed within the time limited for the issuance of a writ of error, i. e., within two years after the entry of judgment.</p>

<p> Criminal law: Writ of error: Record. </p> <p>On a writ of error in a criminal case, where no bill of exceptions has been settled and returned to this court, nothing can be considered except the sufficiency of the information and verdict and the judgment thereon.</p>

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

MandaMüs to tbe Commissioner of Insurance. Tbe fob owing statement of tbe case was prepared by Mr. Justice Cassoday: February 25, 1890, tbe insurance company named filed its petition in tbis court alleging, in effect, that it was a corporation duly organized and existing under cb. 346, Laws of 1889; that it bad completed its organization in due form of law, as required by that chapter, and bad filed with said commissioner its articles of organization, as required thereby;…

The case is stated in the opinion. The defendant appeals from an order refusing to dissolve a temporary injunction. They contended, inter alia, that upon the facts stated in the complaint a court of equity should grant an injunction, independent of any statute.

Action by the executor of tbe'last will and testament óf Ann E. Scott, deceased, .to obtain a construction of certain provisions therein. The action was commenced in the circuit court for Lincoln county, hut upon the application of the defendants William B. Nemes and George A. Neeves, on the ground of prejudice of the judge, the place of trial was changed to Columbia county.

<p> Debtor and creditor: Partnership: Insolvency: Mortgage to secure individual debt. </p> <p>A bant loaned money to one member of a firm and, to secure payment thereof and of certain moneys previously owing by the firm, took a note signed by the partners individually and a mortgage of firm property signed in the same way. The bank knew at the time that the firm was insolvent and that the money then loaned was to pay the individual debt of the partner to whom it was loaned. Held, that to the extent of the money so loaned the mortgage was . void as against other creditors of the firm.</p>

<p>APPEAL from the Circuit Court for Crcmforcl County.</p> <p>The case is stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.</p> <p>To the point that, even in the absence of statutory provisions, it is the duty of the judge to give all necessary instructions to the jury, whether so requested by counsel or not, they cited Owen v. Owen, 22 Iowa, 270: State v. Prcdnard, 25 id. 572; Wells, Law & Fact, 288, sec. 336; Potter v. C., R.I.dkP. P. Co. 46 Iowa, 399; Dassler v. Wisley, 32 Mo. 498.</p>

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>Action upon a policy of insurance against fire. The facts will sufficiently appear from the opinion. The defendant insurance company appeals from an order overruling its general demurrer to the complaint.</p> <p>They contended, inter alia, that after loss an action upon an insurance policy should be at law, but these plaintiffs have sued in equity. The nature of the action must be determined by the prayer for relief. Oillett v. Tregcmza, 13 Wis. P76; Oobb v. Smith, 23 id. 265; Kewaxmee Oo. v. Decker, 30 id. 624; Lowber p. Oonnit, 36 id. 182.</p>

<p> (1, 4) Action, tort or contract? Erroneous statement of counsel. {2, S) Sale of chattels: Evidence. (5) Appeal: Bill of exceptions. </p> <p>1. A complaint alleged that defendants agreed to purchase about 85,000 feet of logs from plaintiff and to pay him therefor $10 per thousand feet; that they afterwards pretended to purchase said logs from a third person, although plaintiff had notified them that he was the owner and forbade such purchase; that the logs were delivered to defendants, and that they thereby became indebted to plaintiff in the sum of $357.10, which they had not paid; and judgment was demanded for that sum. Held, that the action was upon the implied promise to pay for the logs, the tort being waived.</p> <p>2. In such action evidence that defendants agreed to pay said third person $10 per thousand feet for the logs, is sufficient proof, prima facie, of then value.</p> <p>3. Correspondence between the parties relative to the purchase of logs, but naming a mark different from that on the logs in controversy, was admissible, there being other testimony tending to show that it did, in fact, relate to such logs.</p> <p>4. An erroneous statement by plaintiff’s counsel, at the commencement of the trial; as to the nature of the action, winch did not mislead the defendant, is not ground for reversal of the judgment.</p> <p>5. Where the bill of exceptions is not certified by the trial judge to contain all the evidence, it will be presumed that every fact pleaded which is essential to support the judgment was proved on the trial</p>

<p> (1) Parol evidence to vary mitten contract. (2, 3) Appeal: Exceptions: Waiver. </p> <p>1. A writing whereby the lessee of an. engine agrees to accept it and keep it thirty days and pay a specified sum per day, signed only by said lessee and containing no agreements on the part of the lessors, does not preclude parol proof that such lessors warranted the engine to be in good repair and fit to perform the work for which it was leased.</p> <p>2. An exception to the whole of the charge to the jury is too general to be available on appeal.</p> <p>3. The right to appeal from an order is waived by a party who accepts the costs awarded to him as the condition upon which the order was granted.</p>

<p> Railroads: Killing of person at sidewalk crossing: Contributory negligence: Failure to see approaching cars. </p> <p>Plaintiff's intestate was last seen ahye walking beside a switch track in defendant’s yard, going eastward towards a street which crossed . said yard from north to south. It was a cold and stormy day, and he had a shawl about his head and ears. His dead body was found on the switch track about fifteen feet east of a sidewalk which ran along the west side of said street. Blood was found on the east side of that sidewalk and thence along the track to the spot where the body was found. He had been struck and killed by cars which had passed him going westward and had then been pushed upon said switch track and negligently left to run eastward unattended. Upon the evidence, showing the foregoing facts among others, it is held that the jury might properly have found that the deceased, when struck by the cars, was on the sidewalk, where he had a right to be, and that he was not guilty of any contributory negligence in failing to see the cars as they approached him.</p>

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>The following statement of tlie case was prepared by Mr. Justice Cassoday:</p> <p>It is undisputed that at the time of the trial the plaintiff was the owner of the E. ■§■ of the S. W. \ of section 8, township 14, range 16, in Winnebago county, and had been for forty years; that the north line of his land was the south line of land owned by Silas M. Allen, and subsequently by bis son Timothy; that in 1849-50 a state road was laid ont and opened from what is now Berlin to Neenah, which struck the west line of said section 8 at the quarter-post, and ran from thence east on the quarter-section line of said section to a point designated as X, and from thence northeasterly at an angle of about forty-five degrees, and ran on towards Neenah; that, twenty rods west of the point X, there commenced a public highway at a point designated as A, in the center of the state road, and ran from thence south, along the west fine of Bartlett's land; that the portion of the state road from A to X was about sixty-three feet wide, of which about thirty feet was on Ba/rtleffls land, and thirty-three feet on Allen’s land; that travel on that portion of the state road which ran northeasterly from the point X was for a short distance abandoned, many</p> <p> </p> <p>years ago, and instead thereof the travel continued directly east from the point X for a distance of about six rods, where the road fence on the north or Allen’s side of the road, turned northeasterly; that upon the south side of said state road, and about thirty feet from said quarter-section line, and for a distance of twenty-three rods and twenty finks east from tbe center of the road mentioned as running south, Bartlett maintained á substantial road fence, the east end of which was constructed of pickets, and terminated at a point designated as E; that from thence Bartlett's fence ran south a distance of ten feet, and from thence east a distance of ten or twelve feet, to the northwest cor: ner of bis barn; that that barn was sixty feet long, east and west; that eigbty-six feet and four inches east of the barn was Bartlett? s east barn-yard fence, which ran from the south directly north to a point designated as E, five feet north of said quarter-section line, which point F w~as sixty-six feet from the road fence on the northwest side of the road; that from said point F in an easterly direction, for a distance of seventeen feet, and from thence in a southeasterly direction to a point in said quarter-section line designated as G-, there was an old board fence wholly on Allen’s land, said to have been put there by Bartlett in 1860; that the barn doors on the north side of Bartlett’s barn were about twelve feet wide, and came to about twelve feet from the northwest corner of the barn, and about thirty-six feet from the northeast corner thereof; that in 1884 or in 1885, Ba/rtlett built a barbed-wire fence from the point designated as F, at the north end of the barn-yard fence mentioned, westerly, and a little south of west, for a distance of 124J- feet, to a point designated as B, the same being five feet and four inches south of the quarter-section fine, and only thirty-eight feet and four inches from the road fence on the north side of the road at that point; that sixty-five feet of the easterly end. of that wire fence was on Allen’s land, and only fifty-nine and one half feet of the westerly end of it was on Bcwtleffls land; that the point so designated B was directly north from said barn doors, and thirty-three feet therefrom; that said wire fence was torn down, October 27, 1887, by the defendants, acting as town supervisors and overseer of highways, for which this action of trespass was brought.</p> <p>The defendants justify on the ground that the portion of said wire fence on Bartlett's land was an unlawful obstruction of said highway. The jury returned a special verdict to the effect that all of the wire fence on Bartlett? s land so pulled down was in a public highway, which had become such, by lawful user, and that if the plaintiff was entitled to recover they assessed his damages at $4.50. . The court overruled the plaintiff’s motion for a new trial, and ordered judgment for the defendants, with costs. From that judgment the plaintiff appeals.</p>

<p> •Insurance companies: Insolvency: Injunction: Receivers: Dissolution. </p> <p>1. Under secs. 3218, 3219, R. S., a creditor or stockholder of an insolvent insurance corporation may maintain an action to restrain the exercise of its corporate rights, etc., for the appointment of a receiver, and to close up the business of the corporation.</p> <p>8. The fact that a dissolution of the corporation is prayed for in such action does not impair the jurisdiction of the court to grant the relief authorized by said sections. ,</p> <p>3. Such an action having been commenced and an injunction granted and a receiver appointed, an application by the attorney general f oí-an order that the corporation show cause why its business should not be closed and a receiver appointed was properly denied. The attorney general might become a party to the pending action and ask therein for a dissolution of the corporation, which might then be granted, and all the ends sought might thus be attained without another independent proceeding.</p>

<p> Railroads: Injury to 'person at sidewalk crossing: Contributory negligence: Failure to look and listen: Court and jury: Absence of flagman: Special verdict: Judgment. </p> <p>1. The plaintiff was struck and injured by defendants’ locomotive on a sidewalk crossing in a thickly settled portion of a city. It was ini the night-time and the locomotive had come down the street behind-her, going in the same direction. The track curved sharply just before crossing the sidewalk, which was planked continuously on a level with the tops of the rails. The testimony tended to show, among other things, that the plaintiff was not familiar with the locality and did not know the precise position of the crossing; that trees and telegraph poles between the track and’ the sidewalk obscured, to some extent, her view of the track; and that, because of the curve, the light from the head-light did not fall directly upon her until the locomotive was very near the crossing. Held that, notwithstanding a special finding that if the plaintiff had looked before attempting to1 cross the-track she could have seen the light from the head-light, it was still a question for the jury whether she was guilty of any contributory negligence.</p> <p>% No weight can be given to a finding in the special verdict that the defendants’ failure to have a fight or a flagman at the crossing, to' warn the plaintiff of the approaching locomotive^ was negligence.</p> <p>The jury was not competent to determine that proposition.</p> <p>3. But, the defendants’ negligence in failing to provide proper means for securing the safety of persons at the crossing being conclusively established, the court should base its judgment upon the existenóe ' of such negligence, although there is no valid finding to that effect in the special verdict. ■ , ,</p>

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>The following statement -of the case was prepared by Mr. Justice Tayloe as a part of the opinion: ' •</p> <p>This action was commenced originally by Edmxmd Blew-ett against James Gaynor to recover for the sum claimed to be due Blewett from said Gaynor upon a written contract signed by the said Blewett and Gaynor for cutting and putting in the river a large quantity of pine logs in the winters of 1883-1 and of 1884G5. After this action was commenced the defendant claimed that the contract was in fact made by Blewett and Patrick Gaynor, a brother of James Gay-nor, of the one part, and himself of the other part; and thereupon such proceedings were had in the action that the said Patrick Gaynor wras made a co-plaintiff with Blewett; and for the purposes of this action and of this appeal the said plaintiffs, Blewett and Patrick, Gaynor, must be considered as the joint makers of the contract sued upon, and the money, if any, due upon said contract must be considered as due to the plaintiffs jointly.</p> <p>The complaint sets up two causes of action,— one for the balances claimed to be due for cutting and putting in logs in the winter of 1883-4, and in the winter of 188L-5; and a second cause of action to recover damages of the defendant for preventing the plaintiffs from cutting and putting in other logs in the winter of 1884-5. This second cause of action is not- involved in this appeal, as the trial court found against the plaintiffs as to that cause of action, and no appeal is taken by the plaintiffs from the judgment rendered in the action. ’ The following is a copy of the contract upon which the action is brought, omitting the descriptions of the lands from which the logs were to be cut:</p> <p>“ This agreement, made and entered into this-day of November, 1883, by and between Patrick Gaynor, of Chippewa Falls, Wisconsin, and Edmund Blewett, of the town of Oakfield, county of Fond du Lac, Wisconsin, parties of the first part, and Jamies Gaynor, of the city and county of Pond du Lac, Wisconsin, party of the second part, wit-nesseth: That the parties of the first part, for and in consideration of the payments and covenants hereinafter set forth, to he made and performed by the party of the second part, hereby agree, during the winters of 1883-4, 1884-5, 1885-6, 1886-7, to cut and put into the Burnette and main Chippewa rivers all the timber belonging to the party of the second part on all the lands hereinafter described; that they, the parties of the first part, agree that they will put in no other timber than that belonging to the party of the second part during said seasons. And the party of the second part hereby agrees to pay to the parties of the first part for all of said timber so cut and so put in from the following described lands, to wit [describing them], $3.50 per 1,000 feet, and for all of said timber so cut and so put in from the following described lands, to wit [describing them], at the rate of $4 per 1,000 feet; the timber upon the last-named lands to be estimated and agreed upon before being cut, and paid for on such estimate.</p> <p>“And the said party of the second part agrees to pay during each winter of said years — that is, on the 15th days of January, February, and March — two dollars per thousand feet on the quantity of timber cut and put in at such times, and, on the closing of the season, when the camp shall he broken up, fifty cents per thousand feet on all the timber cut and put in up to that time; that is, $2.50 in all per thousand on all timber cut and put in. The balance due on the cut of each winter to be paid for in equal in-stalments on the 1st day each of June, July, August, and September, in each of the years 1884, 1885,1886, and 1887.</p> <p>[Signed] “ Edmund Blewett. [Seal.]</p> <p>“James Gaynoe. [Seal.]</p> <p>“ In presence of W. A. Eldeedge.”</p> <p>The plaintiffs in their complaint allege, after setting out the contract between tbe parties, as above stated, “ that, nnder and in pursuance thereof and in performance of his undertaking therein, they cut and put into the said rivers parcel of the pine growing upon the said descriptions of land first above recited, and for which the defendant agreed to pay the sum of $3.50 per thousand feet as aforesaid, during the logging season of the years 1883 and 1884, a large quantity of logs, to wit, 7,818,160 feet, and thereafter, on the 12th day of September, 1884, these plaintiffs and the defendant had an accounting of and concerning the quantity of lumber cut by these plaintiffs under said contract during said winter of 1883-4, and of the payment made by the defendant thereon, and there was then and there found to be due and in arrears from the defendant to these plaintiffs the sum on such contract for such logging so done as aforesaid by these plaintiffs the sum of $3,087.07, with interest from the 1st days of June, July, August, and September, 1884, upon such proportion of the balance as became due and payable on said days respectively, that is to say, an equal one-fourth thereof. And the said defendant did' then and there undertake and promise to pay the same to these plaintiffs; but, although often requested, he has not paid the same, nor any part thereof. And afterwards, in the winter of 1884-5, these plaintiffs, in further performance and fulfillment of the said contract on their part, off from the said lands first above described as aforesaid, in the $3.50 per thousand class, cut and put in a large quantity of said logs, to wit, 2,441,890 feet, and the said defendant has advanced and paid thereon, under said contract, the sum of $5,102.28 and no more, leaving remaining due and unpaid the sum of $3,444.33, with interest on an equal one-fourth part thereof from the 1st day of each-of the months of June, July, August, and September, in the year 1885, and to pay the same or any part thereof the said defendant has wholly neglected and refused; but, oh the contrary, heretofore, on or about tlie 20th day of June, 1885, the. said defendant set up and pretended, and still pretends, that the sum so by him paid as last aforesaid, was in full for all the lumber cut and put in in the winter of 1884-5, — -all of which is untrue.</p> <p>To this -complaint the defendant answered, admitting the making of the contract as set out in the complaint, and admitting that under said contract, during the logging season of 1883r4, the plaintiffs cut 7,818,160 feet, and during the season of 1884-5, 2,441,610 feet, but no moré. The answer then further alleges “ that for the cutting and hauling of the said timber during both of said seasons the defendant has fully paid the plaintiffs; that after the close of the logging season of 1884^5, the defendant had an accounting with the plaintiffs, and a full and complete settlement and adjustment of all matter and transactions arising from or growing out of said logging contract; and that at that time the defendant paid to the plaintiffs the full and complete balance found upon such settlement to be their due. And the defendant here pleads and alleges payment in full of' .the plaintiffs’ demands under and by virtue of said contract. The defendant further alleges and charges the fact to be that the plaintiff Pckmmd Blewett is now prosecuting this action in the name of himself and Patrióla Gaynor, plaintiffs, against the wishes and consent of said Patrióla Gaynor, and that as a matter of fact said Blewett has himself received, as the proceeds of the logging business conducted by the plaintiffs during the two logging seasons, — 1883-4 and 1884-5,— more than the entire profits of the said logging business for the said two logging seasons; that a true and correct statement, as this defendant is informed and verily believes, of the moneys received and appropriated by said Blewett out of this defendant’s payments on said log-' ging contracts, and out of the moneys either paid directly by this defendant to said Blewett or paid for him and by Rim credited, and allowed on said contract, is hereunto annexed, marked c Exhibit B,’ and made a part 'of this answer. The defendant in further' answering says that a true- and correct statement of the moneys paid by this defendant, or paid for him, to the plaintiffs for the cutting and hauling of logs by the plaintiffs during said two logging seasons is hereunto annexed, marked £ Exhibit 0,’ and made a part of this answer ■; that said Exhibit 0 also contains a true and correct statement of other sums of money properly and justly applicable upon the said logging contract, and which statement shows that the plaintiffs are properly and justly chargeable with a sum largely in excess of the amounts they actually earned under said contract. The defendant, for a further answer to both causes ,of action set out in the plaintiffs’ amended complaint, denies each and every allegation of said complaint, and every matter and thing therein contained, except as herein admitted, qualified, or explained.”</p> <p>The remainder, of the answer sets up several counterclaims, in regard to which no evidence was given on the trial, and which were before judgment withdrawn from the consideration of the court. The case must therefore be determined upon the pleadings above set forth, and upon the testimony of the plaintiffs, who were both called by the plaintiffs and testified in the case. The defendant offered no witnesses to sustain the allegations of his answer, but relies solely upon the statements made by the plaintiff Patrick Gaynor, who was examined by the plaintiffs ■ and cross-examined by the defendant.</p> <p>The case was referred to a referee to hear, try, and determine the same. Upon the pleadings and evidence offered by the plaintiffs the‘referee decided that there was sufficient evidence to show a settlement and full payment of the plaintiffs’ claims before the commencement of the action, and he rendered a judgment in favor of the defendant, dismissing the complaint with costs.</p> <p>Upon the report of the referee, and all the evidence and proceedings in the action, the plaintiffs moved the court that the referee’s report be altered and modified by setting aside and reversing the findings of fact and conclusions of law, and for judgment in favor of the plaintiffs for the sum of $6,531.40, with interest on the sum of $3,087.07 from September 1, 1884, and interest on the sum of $3,444.33 from September 1, 1885. Upon the hearing of this motion the learned circuit judge set aside the findings and judgment of the referee, and made the following findings of fact and conclusions of law, viz.: “ (1) That during the month of November, 1883, the plaintiffs entered into a contract with the defendant for cutting and putting into the Burnette and main Chippewa rivers certain timber upon lands belonging to the defendant, for the sum of $3.50 per M., as more particularly appears by the written contract entered into between the parties, a copy of which is annexed to the amended answer herein; (2) that under and in pursuance of said contract the plaintiffs cut and put in, during the logging season of 1883 and 1884, 7,818,160 feet of logs from said timber of the defendant at the price aforesaid, and that under said contract, during the logging season of the years 1884-5, the said plaintiffs put in for the defendant 2,441,890 feet of logs from said timber of the defendant at said price; (3) that upon the amount thus earned by the plaintiffs in cutting and putting in logs during said logging season of 1883-4, the defendant paid the plaintiffs divers sums of money, so that the balance, as admitted by the plaintiffs’ amended complaint, at the time of the commencement of the action was the sum of $3,000; (4) that upon the amount earned by the plaintiffs in cutting and putting in logs as aforesaid during the logging season of 188F-5 the defendant paid to the plaintiffs divers sums, admitted in said ’ amended complaint, so that the .balance for said last season’s work, as claimed by the plaintiffs in said amended complaint, was the sum of $3,444.33; that in addition to said payment on said''second season’s work, admitted by said complaint, the defendant paid to the plaintiff Patrick Gaynor thereon, some time during the year 1885, the sum of $500; (5) that no other payments upon or for any of said work were ever made by the defendant, as disclosed by the pleadings and the evidence; (6) that no evidence was offered by the defendant in support of any of the counterclaims of his answer; (Y) that in and by the terms of the contract aforesaid all of the balance due for the logs cut and put in thereunder during the season of 1883-4 became due on or prior to September 1, 1884, and all of the balance due for logs put in by the plaintiffs during the season of 1884-5 under said contract, became due on or prior to September 1,1885; (8) that the allegations of the jffaintiffs’ second cause of action are not sustained by the evidence.”</p> <p>And as conclusions of law therefrom the court finds “ (1) that no settlement for said work and earnings of the plaintiffs under said contract was ever had between the parties, and no payment or satisfaction thereof made, except to the extent recited in the foregoing findings of fact; (2.) that the plaintiffs are entitled to judgment against the, defendant in the sum of $5,944.33, and interest on the sum of $3,000 from the 1st day of September, 1884, and interest on the sum of $2,944.33 from the 1st day of September,. 1885, together with the costs of this action. It is therefore ordered by the court now here that the motion of the de.- ■ fendant to confirm the report of said referee and for judgment thereon, be, and the same hereby is, in all things;' denied. And it is further ordered that the motion of The plaintiffs to alter and modify said referee’s report andfor judgment thereon be, and the same hereby is, granted, and judgment is hereby ordered and directed in favor; of .the plaintiffs and against the defendant for the sum of $5;944.33, and interest on the sum of $3,000 from the 1st day., of September, 1884, and interest on the sum of $2,944.33 from the 1st day of September, 1885, together with costs of this action.”</p> <p>Upon these findings judgment was rendered in favor of the plaintiffs against the defendant for the snm of $8,061.45 damages, and $53.08 costs. The defendant duly excepted to the findings of fact and conclusions of law made by the court. The defendant, before final judgment was entered, also moved the court to permit him to give further evidence on his part to sustain his defense. This motion was ovei’-ruled and exception taken.</p>

<p>APPEAL from the Circuit Court for Fond du Lao County.</p> <p>Action to recover a debt alleged to be due from the defendants, as members of an unincorporated church or congregation, upon an account stated between them and Rev. James Colton, the plaintiff’s assignor, on March 10, 1883. On a former appeal (72 "Wis. 411) an order striking out a demurrer to the complaint was affirmed.</p> <p>The answer denies that certain of the defendants were members of the congregation or church on March 10, 1883, or at any time previous thereto, and admits that the other defendants were members previous to the year 1883. It also denies that an account was stated, as alleged in the complaint, between Eev. James Colton and the members of the church, or any one authorized to act for them; and denies that on March 10, 1883, or for more than one year prior thereto, or at any time subsequent thereto, the defendants or either of them were indebted, jointly or severally, to the Eev. James Colton in any sum whatever. Other matters of defense contained in the answer need not be here stated.</p> <p>The facts appearing from the evidence are stated in the opinion. At the close of the testimony a nonsuit was granted as to those defendants whose membership in the church was denied in the answer.</p> <p>The jury, by a special verdict, found, among other things, (1) that the Eev. J. J. Keenan, A. A. Kelly, and Eelix Eogers were authorized by the defendants, as members of St. Patrick’s congregation, to state an account and settle their indebtedness with the Eev. James Colton, and that for and in behalf of the defendants they made the contract dated March 10, 1883; and (2) that the defendants, after having knowledge that such contract was made, ratified and approved the same. Erom the judgment entered upon the special verdict in favor of the plaintiff, the defendants appealed.</p>

. APPEAL from the Circuit Court for Sheboygan County. The following statement of tbe case was prepared by Mr. Justice Cassoday: This action was commenced March 8, 1889, to enforce tbe collection of $482 against tbe defendant Poggenburg, and on tbe same day'tbe garnishee summons and affidavit were served on tbe garnishee defendant, Sohlueter, personally.

<p> (Í) Foreign administrators: Filing appointment in this state. (2) Expert testimony: Value of municipal bonds. (3-6) Replevin: Identificar tion of property: Evidence: Presumptions as to ownership andpos~ session: Instnictions to jury. </p> <p>1. Under sec. 3267, R. S., a foreign administrator may have the same rights and remedies as one appointed in this state, .upon filing his appointment or a duly authenticated copy thereof in any county court in this state — not necessarily in a county in which the decedent had property or in which suit is to he brought.</p> <p>2. A witness who had been in the banking business for twenty-two years, engaged in buying and selling municipal bonds, and who had a general knowledge of the value of such securities, was competent to give an opinion as to the value of Atlanta city bonds, although he had never dealt in them and had no special knowledge as to then- market value.</p> <p>3. In replevin’by an administrator for a certain sum of money and certain municipal bonds claimed to have been sent by the decedent in a box by express to one of the defendants, evidence showing the denomination of the bank bills sent and the numbers and amounts of the bonds, is held sufficiently to identify and describe the property.</p> <p>4. A witness for the plaintiff having testified that a certain amount of money was put into the box and sent to one of the defendants, and the defendants having testified that they did not receive any money in the box, it was-not error to charge the jury that the amount of money which was deposited in the box and sent should be determined from the testimony of the plaintiff’s witness alone.</p> <p>6. It was not error to charge that if the decedent, shortly before his death, or at the time it was claimed the box was sent, had the money and bonds in his possession, then the presumption was that he was the owner of the same at the time of Iris death, and that the plaintiff was entitled to the possession thereof.</p> <p>6. Nor was it error to charge that if the defendants were in possession of the property at the time the box was received, the presumption was, unless the property was wrongfully disposed of, it was in their possession at the commencement of the action; and if they were in possession of the property at the time the box was received, Ruchad wrongfully placed it in the possession of some one else, to conceal it or to prevent the plaintiff from recovering it, then they were liable the same as if they were in the actual possession of the property</p>

<p>APPEAL from tbe Circuit Court for Sheboygan County.</p> <p>Tbe action is ejectment to recover tbe possession of fifteen acres of land in or near tbe city of Sheboygan. Tbe complaint is in tbe usual form. Tbe defendants Friederieh Znrrvmermcmn and Lutz answered jointly, denying tbe material allegations of tbe complaint; also that tbe defendant Ghrisbme Zimmermann is tbe owner of tbe land in controversy and entitled to tbe possession thereof; that tbe defendant Friederieh is her husband and in possession of tbe land as such; and that Lutz is in possession thereof as her tenant. The answer of Ghrisbme alleges tbe same facts, and further that she owns tbe land by virtue of three tax deeds thereof, duly executed to her and recorded,- — one in 1879, and tbe others in 1882, — for tbe unpaid taxes on tbe land thereby conveyed to her for tbe years 1873,1877, and 1878, respectively. She also answers in bar of tbe action tbe limitations prescribed in tbe following statutes: Cb. 133, Laws of 1885; sec. 121 Od, E. S.; cb. 250, Laws of 1882; cb. 153, Laws of 1883.; secs. 2, 3, cb. 309, Laws of 1880; sec. 1188, E. S.; and sec. 4222, E. S.</p> <p>Tbe testimony given on tbe trial satisfactorily shows that tbe defendant Friederioh was tbe agent of tbe plaintiff from 1868 to 1819, inclusive, to collect tbe rents of tbe land in controversy, and to pay the taxes thereon with tbe money so collected. It also tends to show that be made such collections during that period. It was stipulated on tbe trial “ that tbe rent in any one of those years from 1868 to 1819, if any rent was received, would pay more than the taxes for any of those years.” Under a further stipulation of tbe parties, tbe following was tbe only question of fact submitted to tbe jury: “ Did tbe defendant Friederioh Zim/mer-mcmn receive rent for tbe premises described in tbe complaint during any of tbe years from and including 1868 down to and including tbe year 1819? If you answer ‘yes,’ then state tbe years for which be so received tbe rent.” To this question the jury answered: “Yes; for all tbe years mentioned in tbe above.”</p> <p>It was further proved on tbe trial that tbe defendant Friederioh purchased tbe tax certificates upon which tbe tax deeds to bis wife were issued, taking some, if not all, of them in bis own name. If bis wife bad any interest in such purchases, be was her agent in making them and in subsequently taking tbe tax deeds in her name. He so testified, and bis testimony is undisputed.</p> <p>Tbe judge filed findings in favor of tbe defendants to tbe effect that tbe defendant Christine is tbe owner of tbe land by virtue of her tax deeds thereof, and that several of tbe special statutes of limitations thus pleaded bad run in favor of her title, against tbe plaintiff, before this action was commenced. Tbe court also found that, up to tbe time tbe first tax deed was recorded, tbe plaintiff was tbe owner of tbe land, and that Friederioh was not her continuing agent to collect rent or pay taxes. Tbe plaintiff appeals from a judgment entered pursuant to such findings, dismissing tbe complaint with costs.</p>

<p>APPEAL from the Circuit Court for La Fayette County.</p> <p>Action to obtain an accounting of the amount of lead ore taken since February 1, 1885, from certain lands described in tbe complaint; to have the value of one eighth, part of said ore ascertained and determined; to have it adjudged that the defendants pay said value to the plaintiffs, and that the plaintiffs have a hen on said lands therefor ; and for a foreclosure of such lien in case of a default of payment. The facts and the findings of the trial court are sufficiently stated in the opinion. As a conclusion of law the trial court found that the plaintiffs were entitled to judgment for the sum of $610.21, with interest from the commencement of the action, and for costs. Prom the judgment entered accordingly the defendants appealed.</p> <p>They contended, inter alia, that the covenant of Hiram Witherbee to pay one eighth of the ore raised on the lands, as compensation for the construction of the level, does not run with the lands of tbe covenantor so as to bind bis devisees and assigns, tbe defendants in this action. (1) No interest in said lands passed to Orawfor,d, Mills & Co. under tbe contract. There is, therefore, no privity of estate between tbe assignees of Crawford, Mills & Co. and tbe defendants, nor is there privity of contract, and therefore there can be no liability. (2) The covenant is not of a character to inhere in any estate which might have been conveyed by the contract so as to impose the charge of its performance upon the rever-sionary interest in the land which passed to the defendants. Bronson v. Goffin, 108 Mass. 175; 8. G. 118 id. 156; Walsh v. Barton, 24 Ohio St. 28; Kittle Rimer R. Go. v. Eastern R. Go. 41 Minn. 461; Gibson v. Holden, 115 Ill. 199; Mas%imy v. Southworth, 9 Ohio St. 340; Glenn v. Gonby, 24 Md. 127; Brewer v. Marshall, 18 N. J. Eq. 337; Oole v. Hughes, 54 N. T. 444 ; 8eott v. MoMillan, 76 id. 141; Ha/rt v. Lyon, 90 id. 663; Ilulvng v. Chester, 19 Mo. App. 607; Blooh v. Ishann, 28 Ind. 37; Harsha v. Reid, 45 N. Y. 415; West Ya. Transjp. Go. v. Ohio R. P. L. Go. 22 W. Ya. 600; Wiggins F. Go. v. 0. <& M. R. Go. 94 Ill. 83; New-bvrg P. Go. v. Weare, 44 Ohio St. 604; Kejpjoell v. Bailey, 2 Mylne & K. 517; Achroyd v. Smith, 10 C. B. 164; Lynn v. Mb. Savage Iron Go. 34 Md. 603; Blount v. Harvey, 6 Jones Law, 186; Miller v. Noonan, 83 Mo. 343; Wheeler v. Sehad, 7 Neb. 204. The contract, if binding upon these defendants at all, is only binding in case the level is kept in repair by Crawford, Mills & Co. or those claiming under them.</p> <p>cited, besides cases cited in the opinion, Samage v. Mason, 3 Cush. 500; Morse r. Aldrich, 19 Pick. 449; Hurd v. Ourbis, id. 459; Vernon v. Smith, 5 Barn. & Aid. 1; Kepjoell v. Bailey, 2 Mylne & K. 517; Bedford v. British Museum, id. 562; Platt, Covenants, 46Ó; 1 Smith’s L. 0. 116 et seg.g Maine v. Oumston, 98 Mass. 317; Standish v. Lmorence, 111 id. 113; Richardson v. Tobey, 121 id. 457; Hart v. Kucher, 5 Serg. & E. 1; Todd v. Stolces, 10 Pa. St. 155; Gilbert v. Drew, id. 219; Ingles v. BrimgJmrst, 1 Dali. 341; Bu/rloclc v. Beclc, 2 Duer, 90; Hodge v. Sloan, 107 E. Y. 244; Eawle, Covenants for Title, 342; 4 Am. & Eng. Ency. of Law, 497; Sterling Hydraulic Go. v. Williams, 66 Ill. 393; 1 Smith’s L. C. (Hare & W.’s notet), part I, p. 179; Kentmclcy O. B. 'Go. v. Ken-ney, 82 Ky. 154; Goudy v. Goudy, Wright (O.), 410; Smid-with v. De Silver, 1 Browne (Pa.), 221; Gqffin v. Taiman, 8 E. Y. 465; Post v. Weil, 115 id. 361; Nye v. Hoyle, 120 id. 195.</p>

Tbe following statement of tbe case was prepared by Mr. Justice Cassoday: This is an action to recover $135 and interest, tbe alleged purchase price of a certain Champion Light Binder manufactured by tbe plaintiff, and delivered to tbe defendant under an alleged written contract with a warranty annexed.

APPEALS from the Circuit Court for Leo Fayette County. Action by a surety for contribution'. The plaintiff’s co-surety, the defendant Elijah D. Bushnell, is an insane person, and the defendant Olmsted is bis guardian. Other facts are stated in the opinion. The plaintiff recovered $98 and interest thereon at ten per cent, per annum from January 29,1880. Both parties appeal from the judgment.

APPEALS from the Circuit Court for La Fayette County. The parties are sister and brother. Their father, WilL iam Field, late of La Fayette county, died testate in May, 1858, leaving surviving him his widow and eleven children. His estate consisted chiefly of lands in various localities, appraised at $13,345. His personal estate was appraised at $1,569. The estate was indebted in the sum of $862, which was paid out of the proceeds of the personal property.

<p> Penalties: Golleetion by civil action. </p> <p>1. The penalty for the first offense under sec. 3, ch. 348, Laws of 1879, relating to adulteration and fraud in foods, etc., may be collected in a civil action by the state. Such first offense is-not a misdemeanor, nor the penalty a fine, within the meaning of sec. 3394, R. S.</p> <p>3. An act or omission “ specially declared by law to be a misdemeanor,” within the meaning of sec. 3394, R. S., is one so declared by statute.</p> <p>3. Under sec. 3394, R. S., a penalty, forfeiture, or fine may be collected in a civil action unless the act or omission punishable thereby is also punishable, in the discretion of the court, by imprisonment either with or without the fine, or is specially declared by statute to be a misdemeanor, or, possibly, unless a statute irrescribes that the offense be punished by fine eo nomine without further direction.</p>

<p> Corporations: Increase of capital stock: Irregularities cured by acquiescence: Fraud: Cancellation of stock. </p> <p>1. The owner of mines agreed with certain persons to form a corporae tion, they to pnt in $30,000, and he to put in the mines and to have one half of the stock issued. The $30,000 was furnished, and stock to that amount was issued to the parties furnishing it. By mistake the articles of incorporation fixed the whole capital stock at $30,000 instead of $40,000. To correct this mistake a resolution increasing the capital stock to $40,000 was adopted with the assent of all the stockholders. Held, that even if such resolution was adopted at a meeting of the directors instead of the stockholders, the assent and acquiescence of all the stockholders cured the irregularity; and the owner of the mines, having conveyed -them to the corporation in execution of the original agreement, was entitled to certificates of stock to the amount of $30,000.</p> <p>3. A court of equity may, in a suit by a stockholder, adjudge that steck issued by a corporation is void on the ground of fraud.</p>

<p>Exceptions from the Circuit Court for Juneau County.</p> <p>The fohowing statement of the case was prepared by Mr. Justice Cassoday:</p> <p>It appears from the record that the defendant was arrested February 26,1889, upon a complaint made to and filed with a justice oí the peace and a warrant issued thereon, and upon examination before the justice he. was held for trial in the circuit court for 'Wood county; and thereupon he gave the requisite bail for his appearance at the next term of that court. That on or about May 21, 1889, the district attorney for Wood county filed an information against the defendant in the circuit court for that county, wherein it was charged in effect that said defendant did unlawfully, wrongfully, maliciously, and feloniously write, make, indite, and address to, and cause to be sent to and received by, Ella and Mary Corcoran, sisters, unmarried, then and there being, residing, and doing business in the city of Grand Eapids in said county, whose surname was then and there, in said county and city, spelled either Cochran or Corcoran, and who were then and there generally well known by said name spelled either way, a written communication in the words and figures following, to wit:</p> <p>“ Grand Eapids, Feby. 15, ’89.</p> <p>“ To both of the Miss Cochrans:</p> <p>“ If you do not leave this city inside 10 days you will be tarred and feathered, now we ‘mean’ it from the lovers of decent ‘Citizens.’ Ton are counted a nusants, by all.”</p> <p>— for the purpose, and with the wrongful, unlawful, malicious, and felonious intent, then and there and by that means, to compel the said Ella and Mary to remove and depart from said city against their wishes and against the will of each, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Wisconsin. That May 28, 1889, the defendant was duly arraigned in open court, and pleaded not guilty to the charge alleged in such information. That upon the case being called, May 29, 1889, the defendant made an affidavit of prejudice of the judge, and thereupon asked for a change of the place of trial of said action. That afterwards, and on July 21, 1889, the court thereon ordered the removal of said cause to Juneau county. That said order recited the making and filing of said affidavit of prejudice, and the same was filed therein on that day. That all of the original papers on file, with the certificate of the clerk of the circuit court for Wood county, made under his hand and the seal of said court, July 30, 1889, were filed in the oflS.ce of the clerk of the court of Juneau county, August 10,1889. That a certified copy of the clerk’s minutes was afterwards transmitted and filed in the clerk’s office for Juneau county, October 10, 1889, and just previous to the trial of said cause. That the defendant having been duly called on the first day of said term of court, and having failed to appear, a warrant was thereupon issued by said court to the sheriff of said Juneau county, who thereupon and by virtue thereof arrested said defendant, and brought him in custody before said court, October 10, 1889. That upon said cause being called for trial in the circuit court for said Juneau county on said last-mentioned day, the defendant by his counsel moved the court to remand the cause back to Wood county, for the reason that it appeared from the record in said cause that the case was not properly in said circuit court of Juneau county, and that said last-named court had no jurisdiction, which said motion was then and there denied, to which ruling the defendant then and there duly excepted. That said cause was thereupon tried in the circuit court for Juneau county, October 11, 1889, and, upon such trial, the jury returned their verdict in open court, Avherein they found the defendant guilty of the charge set forth in said information, which verdict was then and there entered in said court. That thereupon the said defendant then and there, upon the minutes and proceedings of said trial, gave notice of a motion to set aside said verdict and for a new trial, for, among other reasons, that the court had no jurisdiction of the action, of the defendant, or the subject matter of the action. That October 14, 1889, the said court, having beard counsel for and against said motion, and baying duly considered tbe same, thereupon denied said motion, to which ruling the defendant then' and there excepted. That thereupon the defendant, by his counsel, then and there, before judgment and sentence, moved the court in arrest of judgment, for the reason that the communication set out in the action, for the writing of wthich the defendant was found guilty, does not constitute an offense under the statute. That the court, haying entertained said motion, and duly considered the same, then and there denied said motion, to which ruling and decision the defendant then and there duly excepted. All of which said exceptions, haying been reduced to writing in a summary mode, and presented to the court before the end of said term, and found to be conformable to the truth of the case, were allowed and signed by the judge of said court, October 14, 1889.</p> <p>argued, among other things, that the information charges an offense under sec. 4380, E. S., as amended by ch. 243, Laws of 1887. The statute of Michigan is very like our own. 2 How. Stat. sec. 9093; People v. Brama/n, 30 Mich. 460; People v. Jones, 62 id. 304. That of New York is somewhat similar. E. S. of N. Y. 1882, Penal Code, sec. 559; People v. Griffin, 2 Barb. 427. The malice required by the statute is not a feeling of -ill-will towards the person threatened, but the wilful doing of an act with illegal intent. Gomm. v. Goodwin, 122 Mass. 19; Gomm. v. BuoTcley, 148 id. 27. See, also, note to sec. 4380, S. & B. Ann. Stats.; State v. Stewart, 90 Mo. 507; State v. Patterson, 68 Me. 473; People v. Thompson, 97 N. Y. 313; People v. Wightma/n, 104 id. 598; Gomm. v. Moulton, 108 Mass. 307; Gomm. v. Goodwin, 122 id. 19; 2 "Whart. Grim. Law (9th ed.), sec. 1664; 2 Bish. Grim. Proc. (3d. ed.), secs. 1024 et seq.</p>

<p> Griminal pleading: Place of offense. </p> <p>Where a county is named in the caption oí an information by an officer describing himself as the district attorney of that county, an allegation that the offense was “then and there” committed sufficiently shows that it was committed in said county.</p>

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: This action was brought to recover damages on a contract for the sale by the defendants to the plaintiff of a thoroughbred Durham bull.

<p>APPEALS from the Circuit Court for MiT/wo/alcee County.</p> <p>The facts are stated in the opinion.</p>

APPEALS from tbe Circuit Court for Monroe County. These two appeals are from an order of the circuit court of Monroe county consolidating the four above-entitled actions into a single action, and directing the procedure in such consolidated action. In 1888 the plaintiff George 8.

Tbe following statement of tbe case was prepared by Mr. Justice Taylor as a part of tbe opinion: Tbis action was brought to recover tbe amount claimed to be due upon two promissory notes, one for tbe sum of $1,000, bearing date on tbe 6th of July, 1888, payable in sixty days after tbe date thereof, with interest after maturity at tbe rate of eight per cent, per annum, and one for tbe sum of $1,500, bearing date tbe said 6th day of July, 1888, payable in ninety days after tbe…

Action by the assignee of Royal L. Reynolds to recover the amount of a deposit in the defendant bank to the credit of said Reynolds. The facts are sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. To the point that a bank has an absolute right to apply a deposit of an insolvent to the payment of his paper whether due or not, they cited Ex 'pcurte Howard Eat.

The following statement of the case was prepared by Mr. Justice Cassoday: This is an action for damages for an injury to the plaintiff’s intestate, Johanna Ewe, while she was a passenger on a train of cars of the defendant in Trempealeau county, caused by a collision at a railroad crossing, September 19, 1888, and from which she died September 25, 1888. She was a widow at the time, her husband having died about four years before.

Action for the conversion of a quantity of pine saw-logs of the alleged value of $4,800, which had been cut by the defendant Thompson upon the plaintiffs’ lands, and which are alleged to have been, at the time of their conversion by the defendants, in the possession of the plaintiffs on Levis creek in the town of Albion, Jackson county. The defendant Thompson did not answer the complaint.

<p> (J) Instructions to jury. (0) Jurors: Change of opinion. </p> <p>1. Where the jury was instructed that a certain issue was the only one in the case, a party claiming that there were other issues should have called the attention of the court thereto and asked further instructions. An exception to the instructions on the ground that they did not embrace all the questions at issue is not sufficient.</p> <p>2. A change of opinion by a juror on consultation with his fellows in the jury-room is not cause for setting aside the verdict; and though remarks made by jurors, immediately after the jury had retired, indicated a misunderstanding of the case at that time, it will be presumed that such misapprehension was corrected before the verdict was agreed upon.</p>

<p> Land contract: Payment to be made in crops: Breach by vendor: Measure of damages. </p> <p>The vendee in a land contract was to raise oats on one third of the land for five years, and to deliver the five crops to the vendor in full payment for the whole tract. He was to have immediate possession of the whole tract, and was to pay the taxes. The vendor refused to give him possession of the land, and wholly failed to perform the contract on his part. Held, that the measure of damages for such breach is the value of the land less the contract price, such price in this case being the necessary exjienses of raising the five crops of oats and delivering the same to the vendor. The value of the use of the remaining two thirds of the land should not be added to the value of the land, to increase the damages; nor should the taxes to be paid by the vendee be included with the cost of raising the oats, to reduce the-damages.</p>

<p>(1) Defective highway: Notice of injury, how given. (2) Sufficiency of description of place and defect. (8) Contributory negligence: Instructions to jury. (4) Second injury as consequence of first. (5) New trial.</p> <p>1. The giving of the notice of an injury caused by a defective highway in a town, required by sec. 1339, R. S., is sufficiently proved by showing that it was received by the proper officer within the statutory time and filed by him with the town clerk.</p> <p>2. A notice stating that J. W. “ was injured by being thrown from a wagon on the main highway on section 2, town 20 north, of range 2 west, at a point where said road turns and runs due north, and where said road goes over a hill or bluff; that said injury was caused by a hole being washed in the road, so that in descending the hill, going south, the wagon plunged off from a stone table into said washout,” — is held sufficiently to describe the place where the accident happened and the defect in the highway which caused it.</p> <p>3. The refusal to give special instructions on the subject of contributory negligence is held not to have been error where such instructions were in the nature of an argument based upon some of the evidence, and the general charge contained a full and fair statement of the law.</p> <p>4. In an action against a town for the breaking of a leg caused by a defective highway, it appeared that the plaintiff, after having so far recovered as to be about on crutches, had his leg broken a second time by the overturning of a buggy in which he was riding. Held, that if the leg would not have been so broken but for its weakened and impaired condition due to the previous breaking, and if the plaintiff was not chargeable with any negligence in respect thereto, he could recover for such second breaking as one of the natural consequences of the first.</p> <p>5. An order denying a motion for a new trial on the ground of newly discovered evidence will not be reversed where such evidence is merely cumulative and might, with proper diligence, have been produced on the trial</p>

<p> Joint school district: Failure of town to raise its share of expenses: Remedy. </p> <p>To enforce the obligation of a town to raise by taxation its share of the amount required for the support of a joint free high school, the remedy is not by action to recover such share as a claim against the town, but by mandamus to compel the levy and collection of the tax</p>

<p>APPEAL from the Circuit Court for Ola/rk County.</p> <p>The action was commenced in justice’s court, May 9,1888, to recover tlxe sum of $56.93 alleged to be due to the plaintiff for work and labor in chopping wood for the defendant in the winter of 1887-88, and the sum of $2.80, the alleged price of chickens sold and delivered by the plaintiff to the defendant. The complaint alleged that said sums became due jirior to the commencement of the action. The answer was a general denial.</p> <p>The plaintiff, recovered judgment in the justice’s court, and the defendant appealed to the circuit court. ’ The cause came on for trial in the latter court on December 5, 1889. The defendant objected to any testimony being received on the ground that the action was brought to recover a balance of an unsettled partnership transaction, for which no action at law could be maintained. The objection was overruled. After the plaintiff had rested, the defendant moved, upon the same ground, that the court withdraw from the case all the plaintiff’s claims except the item of the chickens. Tbe motion was denied. Tbe evidence given on tbe trial will sufficiently appear from tbe opinion. Tbe court instructed tbe jury to “ ascertain bow much is due tbe plaintiff for all tbe chopping be did, and' then ascertain bow much be bas received for it, and if there is a balance in bis favor give him that balance.” Tbe jury returned a verdict in favor of tbe plaintiff for $65.92.</p> <p>Tbe bill of exceptions states that “ upon tbe coming in of said verdict tbe defendant’s counsel stated to tbe court that be was at a loss to know why tbe court bad charged tbe jury as it did, and bad not submitted to. them to find bow much was due tbe plaintiff, if anything, at tbe commencement of tbe action. Whereupon tbe court stated that tbe court bad charged in tbe manner it did for tbe reason that tbe defendant bad not pleaded in abatement that tbe debt or demand was not all yet due, and that tbe plaintiff was entitled to receive all that bad become due upon tbe same contract, for tbe same breach, up to tbe time of verdict. To ■which tbe defendant’s counsel urged that tbe case bad been tried and argued to tbe jury without any objection having been made that tbe answer did not plead in abatement that tbe debt was not yet all due.”</p> <p>A motion for a new trial was denied, and from tbe judgment entered on tbe verdict tbe defendant appealed.</p> <p>contended, inter alia, that it was error to permit tbe plaintiff to state that there was due bun, at tbe commencement of tbe action, between $50 and $60. This was a mere conclusion, not a statement of fact. 1 Tbomp. Trials, secs. 317, 381; White v. Stoner, 18 Mo. App. 540; ■Smith v. Young, 26 id. 575, 578; Kauffman v. Babcock, 67 Tex. 241; Morehouse v. Mathews, 2 N* T. 514; Lincoln, v. S. <& S. B. Oo. 23 Wend. 425; Worman v. Wells, 17 id. 136; Young v. Gureton, 87 Ala. 727; Bairn, v. Cushmcm, 60 Yt. 343. Tbe action should have been dismissed because brought to recover what was in fact tbe balance of an unsettled partnership account. Story, Partn. sec. 2; Oilbanh v. Stephenson, 31 Wis. 592; Fcvilv. Moltee, 36 Ala. 61; Alim v. Lewis, 13 Ark. 28; Musier v. Trump-bour, 5 Wend. 214; Tolford v. Tolford, 44 Wis. 547. The charge to the jury was erroneous. There was no contract by defendant to pay plaintiff anything until the money was received by him. After it was received the plaintiff, upon demand, could maintain an action for money had and received but not for work and labor. Hitchvngs v. Ellis, 12 Gray, 449; Fail v. Moltee, 13 Ark. 28. It was not necessary to plead that the debt was not due. If there was a subsisting indebtedness to become due, it might be necessary to plead in abatement. But there was no indebtedness and no cause of action whatever as to the wood not disposed of. It being alleged in the complaint that the sum named “ became due prior to the commencement of this action,” that allegation is properly covered by the general denial. Pomeroy, Remedies, sec. 672; Quin v. Lloyd, 41 N. Y. 349; Millett v. Hay ford, 1 Wis. 411. The case having been tried on the issue whether anything was due at the commencement of the action, without objection, the court should have considered the answer as amended. Bowers v. Thomas, 62 Wis. 480.</p>

<p>APPEAL from the Circuit Court for Wawpaoa County.</p> <p>This is an action to recover damages for personal injuries to the plaintiff, alleged to have been caused by a defective highway in the defendant town.</p> <p>On June 6, 1886, the plaintiff was riding with her husband on such highway in a vehicle on two wheels, called a “ dog-cart,” drawn by one horse then being driven by her husband. When the horse was walking briskly, one wheel of the cart struck a'stone a few inches high, firmly fixed in the ground and extending from the side of the traveled track to within three or four inches of one of the wagon ruts in the track; and by reason of tbe cononssion plaintiff was thrown from the cart and received the injuries complained of.</p> <p>On the trial of the cause, the court allowed witnesses for the defendant to testify, against objection by the plaintiff, that in their opinion carts like the one in which plaintiff was riding at the time she was injured are unsafe for the use of two persons riding over ordinary country roads.</p> <p>The trial resulted in a verdict for the plaintiff, assessing her damages at $167. The plaintiff moved for a new trial, mainly on the ground that the damages so assessed are inadequate to compensate her for the injury she proved she sustained. The motion was denied, and judgment was thereupon entered for the plaintiff, pursuant to the verdict, from which judgment she appeals to this court.</p>

<p> {!) Interest: Unliquidated counterclaim. (2,8) Custom: Logs and lumber: Evidence: Contract: Damages. </p> <p>1. Though upon a liquidated claim interest is recovered from the time when the cause of action accrued, upon an unliquidated counterclaim thereto, accruing at the same time, interest is recoverable only from the date of service of the answer.</p> <p>2. A. custom of the mill-owners on the Wisconsin river to retain the slabs from logs sawed by them is a general custom, which may be proved without having been pleaded.</p> <p>3. In an action to recover damages for a failure to furnish the agreed quantity of logs under a contract for sawing, the mill-owner may recover (in addition to the difference between the contract price for the sawing and the actual cost of doing the work) the value of the slabs to which, by a general custom, he would have been entitled.</p>

<p>APPEAL from the-Circuit Court for Portage County.</p> <p>Action to recover dower, possession of the homestead, and tbe plaintiff’s lawful share of the personal estate of her deceased husband. The facts are stated in the opinion. The post-nuptial agreement therein referred to was as follows :</p> <p>“ This agreement made this 16th day of March, 1886, between Calvin West, party of the first part, and Elizabeth West, party of the second part, all of Portage county, Wis.</p> <p>“ Witnesseth: That the said parties are man and wife, and that they have agreed what the said party of the second part shall be paid in full satisfaction for all her interest and dower right in all the personal and real property of the said party.</p> <p>“I, Calvin West, do hereby revoke and make null and void all previous contracts and agreements thereto, and the said Calvin West does hereby covenant and agree on his part that, during his natural life and the life of his said wife, he will in sickness and in health provide for her all the necessaries of fife and such luxuries as may be suitable and proper considering their circumstances in life, that in case of her death, that he will provide a Christian funeral for her remains, pay all expenses thereof as well as for her last illness, and make no claim upon her personal estate whatever, real or personal, and shall have full control of it, the estate, and sell it. at any time that she may see fit, and in case of her death prior to Ms she may will the same as she may see fit. And in the case of his death prior to her decease, she shall have out of his estate, or as she may choose, either in Government bonds, four per cent, bonds, the sum of one thousand dollars, and all the household furniture, and all my clothing, which shall he in full satisfaction and payment of all and every claim against his estate, including dower and all other allowances, including the two hundred dollars allowed her by statute.</p> <p>“ And the said Elizabeth West doth hereby accept the foregoing provisions on her part, and doth agree to comfort him in sickness and health, and in all tMngs be a prudent and faithful wife and homekeeper for the said Calvin West, her husband, during their lives, and further agrees that she will sign such deeds and conveyances of the real estate of said husband as he may desire to sell and convey during the period aforesaid.</p> <p>“ And it is further agreed that if unhappy differences arise between them so as to prevent their residing together as aforesaid, then and in that event they will arbitrate such differences either by agreeing upon an arbitrator or by each choosing one, who in case of disagreement shall choose a third, and each shall and will abide their award, and sign all necessary deeds and agreements to perfect and carry out such award.</p> <p>“And it is further agreed that neither of said parties shall contract any debts or liability without the consent of the other.</p> <p>“ In witness whereof the said parties have hereunto set their hands and seals the day and dates above written.</p> <p>“ Signed, sealed, and delivered the 16th day of March, 1886.</p> <p>“ In the presence of</p> <p>“ T. U. Walkes,</p> <p>“ C. E. W. Eelch.</p> <p>his</p> <p>Calvot x West,</p> <p>[seal.]</p> <p>E. West,</p> <p>[seal.] ”</p> <p>The defendants appeal from a judgment in favor of the plaintiff.</p>

<p>APPEAL from the Circuit Court for Portage County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassodat :</p> <p>This action was commenced February 15,1888, upon a promissory note dated October 2, 1876, alleged to have been executed by the defendant’s intestate, John Riches, payable to the order of one Thomas Welch, for $326. 75, payable April 25, 1877, with interest. It is alleged in the complaint that there was paid and indorsed thereon to Welch, April 10, 1879, $25; also, June 1, 1882, $35; and that Welch indorsed, and transferred the note to the plaintiff, September 20,1886. The answer denied each and every allegation of the complaint, and specifically denied the signing and execution of the note, and alleged that if the note was ever executed by John Riches it had been fully paid and satisfied' while in the hands of Thomas Welch; and also pleaded the six years statute of limitations. At the close of the trial, the jury returned a verdict in favor of the plaintiff, and assessed his damages at $708.70. From the judgment entered upon that verdict, the defendant appeals.</p>

<p>APPEAL from the Circuit Court for Wood County.</p> <p>Ejectment. The answer admits that the defendants are in possession of the land, but denies that the plaintiff has any title or interest therein or any right to the possession thereof, and alleges that the same is a part of the public domain of the United States. The case was tried by the court, a jury having been waived. The facts will sufficiently appear from the opinion. The defendants appeal from a judgment in favor of the plaintiff.</p> <p>They contended, inter alia, that it is settled by the laws of the United States that proprietors of lands bordering on rivers navigable in fact, under title derived from the United States, -hold title only to the stream, and this without regard to the decisions of the courts of the several states as to the ownership of the shores and beds of such streams. The Daniel Ball, 10 Wall. 557; Bcdlroad Go. v. Sohurmeir, 7 id. 272; Tates v. Milwaulcee, 10 id. 497; St. Olcdr Go. v. Bovingston, 23 id. 46; Barney v. JBeolouh, 94 U. S. 324. The rule in this state which gives the riparian proprietors the shores and beds of navigable streams, is not at variance with the decision in Bcdlroad Go. v. Sohurmeir, but merely gives them the rights which, under the decision in Pollard v. Hagcm, 3 Iiow. 212, properly belonged to the state and not to the United States. Ba/mey v. Keoktok, 94 U. S. 324; Olson v. Merrill, 42 Wis. 211-212. But tbe decision in Pollard v. Ilagan, declaring tbe title to tbe shores and beds of navigable streams to be in tbe states respectively, did not yield to tbe states tbe title to tbe islands in navigable streams. And clearly tbe center or thread of tbe stream, which under tbe laws of this state bounds the interest of tbe plaintiff, is tbe center or thread of that channel which separates tbe island from her lots 3 and 4. This is tbe “watercourse'1'’ which, under Panlroad Go. v. Schurmeir, should be taken as tbe “ loumdary ” of tbe lands conveyed by the United States; and it was error to ignore tbe existence of this channel, so plainly marked and indicated on tbe original government plat. See, besides cases above cited, Benson v. Morrow, 61 Mo. 345; McMam/us v. Ga/rmichael, 3 Iowa, 1; Middleton v. Pritchard, 4 Ill. 510; Gould, Waters, secs. 68, 69, TY; Watson v. Peters, 26 Mich. 508; Shoemaker v. Hateh, 13 Nev. 261; Schurmeier v. St. P. da P. P. Go. 10 Minn. 82; St. Paul, S. de T. F. P. Go. v. F. B., St. P. dé P. P. Go. 26 id. 31; Indiana v. Milk, 11 Fed. Rep. 389.</p>

<p>APPEAL from the Circuit Court for Waupaca County.</p> <p>In January, 1877, the plaintiffs and defendants and one Dixon formed a copartnership, under the name and style of the New London Stave Company, for the purpose of carrying on a general stave business at the city of New London. There were six equal partners in the firm or company, the defendants, under the firm name Trayser & Dickmson, being one of the partners, and Dixon being another. The copartnership continued until April, 1881, when it was dissolved by the death of Dixon. It was then insolvent. The surviving partners proceeded to wind up the affairs of the company, and paid all its indebtedness. After this was done, such surviving partners, including the defendants in this action, brought an action in equity against the heirs of Dixon for an accounting of the copartnership affairs, and to recover of such heirs the amount of the indebtedness of the firm over and above its assets which in equity would have been chargeable to Dixon, as one of the copartners, had he lived. The action was tried and an accounting had therein as prayed. The court found the facts above stated, and that the indebtedness of the stave company, which the plaintiffs had paid, was $11,728.23, one sixth of which, or $1,954.70, was chargeable to the estate of Dixon, and judgment against the heirs of Dixon, who were found chargeable with the latter sum, was entered accordingly. On appeal to this court such judgment was affirmed. 73 Wis. 533.</p> <p>This is an action at law brought by the plaintiffs, four of the surviving partners in the stave company, to recover of the defendants (who jointly constitute the remaining surviving partner therein) their proportionate share of such indebtedness. The complaint alleges that the plaintiffs paid the whole of such indebtedness. This was proved true on the trial, and is not controverted by defendants. The court directed, a verdict for the plaintiffs for the portion of the deficiency found in the Dixon Oase to be chargeable to each partner, and interest thereon. Judgment was entered pursuant to the verdict, from which the defendants appeal.</p>

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

The following statement of the case was prepared by Mr. Justice Cassodáy: This action is for damages for wilfully or by gross negligence killing a very valuable black mare belonging to the plaintiff, while trespassing upon the defendant’s right of way.

<p> Telephone companies: Obstruction to use of highway: Court and jury. </p> <p>1. Under a statute allowing telephone lines to be constructed and maintained along a public highway provided they do not obstruct or incommode the public use of such highway, telephone poles erected from four to six feet from the fence in an almost perfectly level highway are not such obstructions as render the company liable for personal injuries caused by runaway horses colliding with one of such poles.</p> <p>3. The question whether the telephone company by placing its poles in the highway as stated, was negligent, or was guilty of a breach'of legal duty, might properly be determined by the court on demurrer to a complaint setting forth the facts.</p>

<p> Might of way: Obstructions: Bemedy: Might to maintain gate: Court and jury: Appeal from J, P. </p> <p>1. Where the owner of land obstructs a way over the same to a highway, the person having the right of way may cross the land of the same owner at some other convenient place to reach the highway.</p> <p>2. The owner of land subject to a right of way to a highway is held to have had the right, in order to protect his enclosed land, to maintain a reasonable gate or bar-way at a point practically at the end of the private way — the land between such gate and the highway being unenclosed.</p> <p>3. The question whether a gate or bar-way across a right of way is an unreasonable obstruction or not, is usually one of fact for the jury.</p> <p>4. Upon appeal to the circuit court, if there is no trial de novo, the verdict of the jury in a justice’s court must stand, unless it is clearly unsupported by the evidence. -</p>

<p>APPEAL from the Circuit Court for Columbia County.</p> <p>The facts are stated in the opinion.</p> <p>argued, among other things, that a ballot is merely a written vote in contradistinction to’ one viva voee, and as used in the constitution the word has its common-law meaning — nothing more nor less. It has never been held, in the absence of a statute, that a mark or word on the outside of a ballot vitiated and destroyed it. Cush. Leg. Assem. sec. 103; Mechem, Pub. Off. sec. 191; State ex rel. MilUeam v. Phillips, 63 Tex. 390. Courts have uniformly been governed by the intention of the voter, in considering whether to count or reject irregular ballots, without regard to what might be on the outside of the ticket or how they might have been folded. State ex rel. Spcmldm-g v. Elwood, 12 "Wis. 551; AtÉy Gen. ex rel. Carpenter v. Ely, 4 id. 430; People v. Coole, 8 N. Y. 61; Hawes v. Miller,-56 Iowa, 395; R. S. secs. 34, 10. A secret ballot does* not mean a ballot which necessarily shields every vote cast at an election from publicity. The “ vote by ballot ” does nothing more than to provide a method by which the voter who desires to conceal the contents of his ballot may do so. No case can be found where a court has held that a secret ballot is anything more than a personal privilege. State ex rel. Hop-Toms v. Ol/m, 23 Wis. 309; People ex rel. Williams v. Oieott, 16 Mich. 283; Temple v. Mead, 4 Yt. 535; Cooley, Const. Lim. 760. This being so, the complaint is fatally defective in not alleging that the voters who supported the defendant were prevented from voting a secret ballot by reason of the distribution and use of the tickets in question.</p> <p>Sec. 10, ch. 464, Laws of 1885, was intended to secure practical uniformity in the ballots by prohibiting the printing and circulation on election day of any ballots except those described in the statute. It was not intended to place restrictions upon the voter, or to make ballots of any other description illegal and void when voted by qualified electors and received by the inspectors. Had that been the intention, the law would have so declared. The section is borrowed from older states, but with a significant alteration. As found in Indiana, Texas, Mississippi, and elsewhere, it provides that “ the inspectors shall refuse all ballots of any other description.” In some of the states the language is, “ the inspectors shall refuse to receive or count ballots not in conformity with this section.” The omission of this provision from our statute must have been for a purpose. Again, sec. 9 of the same act forbids the inspectors to expose or examine the backs of ballots actually cast, and requires them to count and canvass all such ballots and declare or announce the result. Kellogg v. Hickman, 12 Col. 256, is the only authority we have found under a statute like our own. Other cases are based upon statutes which forbid the inspector to receive and count the vote. Oomm. v. Woelper, 3 Serg. & R. 29; Pruliner v. State, 29 Ind. 308; Napier v. Mayhew, 35 id. 276; Mechem, Pub. Off. sec. 193.</p> <p>There is no analogy between contracts which are made in violation of law, and ballots which are forbidden to be printed or circulated but not forbidden to be voted.</p> <p>contended, i/nter alia, that tbe ballots cast for tbe defendant were void because in violation of sec. 3, art. Ill, Const., wbicb provides that “ all votes shall be given by ballot,” etc. A ballot implies absolute and inviolable secrecy. Bouvier’s Law Diet. 11th ed. and 15th ed.; McCrary, Elections, sec. ,513; Paine, Elections, sec. 535; Cooley, Torts, 298; Cooley, Const. Lim. (5th ed.), 760, 761; 2 Am. Cyc. 245, “Ballot;” Mechem, Pub. Off. secs. 192, 194; 1 May, Const. Hist, of Eng. 353; Temple v. Mead, 4 Yt. 535; People ex rel. Smith v. Pease, 27 N. Y. 45; Williams v. Stein, 38 Ind. 89; State ex rel. Williams v. Gieott, 16 Mich. 283; Brisbin v. Oleary, 26 Minn. 107; Barnum v. Gilman, 27 id. 466. If the ticket be not such as required by the constitution, or even a statute, it is void and cannot be counted. Oomm. v. Bead, Bright. Elec., Cas. 126; S. 0. 2 Ashm. (Pa.), 261; Foster v. Secvrff, 15 Ohio St. 532; AtDy Gen. v. Detroit Oomm. Ootmcil, 58 Mich. 213, 217; Jones v. Glidewell, 7 Law Eep. Ann. 831; Cooley, Const. Lim. 760; Mechem, Pub. Off. sec. 192.</p> <p>The ballots cast for the defendant were void because in violation of sec. 10, ch. 464, Laws of 1885 (sec. 44i, S. & B. Ann. Stats.). Whatever is prohibited by statute is, of course, illegal and void. JEtma Ins. Go. v. Ha/rvey, 11 Wis. 394; Lemon v. GrossTcopf, 22 id. 447; Melehoir v. MeOa/rthy, 31 id. 252; OlarTce v. Lincoln Lumber Go. 59 id. 655; Fulton v. Day, 63 id. 112; Hdllett v. Novion, 14 Johns. 273. The object of the statute being to secure the secrecy of the ballot, any departure from its provisions in any way destroying, invading, or impairing that secrecy invalidated the ballot itself and required its rejection. McCrary, Elections, secs. 500-505; Cooley, Const. Lim. 760; Cooley, Torts, 298; Oomm. v. Woelper, 3 Serg. & E. 29; State ex rel. Mahoney v. McKimnon, 8 Oreg. 493; Ledbetter v. Hall, 62 Mo. 422; Oglesby v. Sigman, 58 Miss. 502; Perlmis v. Oarraway, 59 id. 222; Keller v. Toulme, 7 S. Eep. (Miss.), 508; Steele v. Oalhoun, 61 Miss. 656; Ki/rh v. Rhoads, 46 Cal. 398; Reynolds v. Snow, 61 id. 497; State v. OolUns, 12 Atl. Ee]3. (E. I.), 121; Paine, Elections, secs. 534-6. In cases where the particular objections urged were held not to invalidate the tickets, those objections were either as to the heading or other printing on the inside of the tickets, or their shape where there was no requirement as to the shape. DruU-ner v. State, 29 Ind. 308; Stanley v. Manly, 35 id. 275; Millholland v. Bryant, 39 id. 363; State ex rel. Julian v. Adrnns, 65 id. 393; State ex rél. MilUean v. Philli/ps, 63 Tes. 390; Owens v. State ex rel. Jenneit, 64 id. 500; WilUams v. State ex rel. Vasmer, 69 id. 368; Wymcm v. Lemon, 51 Cal. 273; Ooffiey v. Edmonds, 58 id. 521.</p>

<p>APPEAL from the Circuit Court for Do/ne County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassodat:</p> <p>This is an action upon a policy of fire insurance, covering a dwelling-house and barn and the contents, situated upon the premises occupied by the plaintiff in the town of Dunn. The policy was dated June 15, 1888, and contains a provision to the effect that the same would be void unless the plaintiff was the sole and unconditional owner of the premises. The defense say, among other things, that the plaintiff was not such owner. It is conceded that the premises were conveyed to Ellen Eyan, then wife of plaintiff, on April 24, 1884, and that she died September 21, 1884. The plaintiff claims to have proved title in himself by the record of a deed of the premises from Ellen Eyan to himself, dated April 24, 1884, and recorded in the register’s office July 13, 1888, but which original deed had been destroyed in the fire. The defense claimed, and gave evidence upon the trial tending to prove, that the blank upon which said deed was written and so recorded contained upon its upper right-hand corner these words, to wit: “ M. J. Cantwell, Law-Blank Publisher, Madison, Wis.; ” and that no such blanks ever existed until after April, 1887, nearly three years after the death of the grantor named in said deed.</p> <p>At the close of the testimony, the plaintiff’s counsel requested the court to submit to the jury the following question, which, for convenience, is hereby designated “ Question A,” to wit: “ Did Ellen Eyan, on the 24th day of April, 1884, execute a deed to Plvil E. Eyan, conveying to him the real estate upon which the property insured was situated at the time the policy was issued to him by the Bock-ford Insurance Oonvpcmy? ” The court submitted the said question to the jury with the following remarks, to wit: “ If you answer that question ‘ Yes,’ it would be in accordance and consistent rather with a general verdict for the plaintiff. If you answer it c No,’ it would be inconsistent with, a general verdict for the .plaintiff. You can see you will answer that question ‘ Yes ’ or ‘ No.’ ” Thereupon the counsel for the defendant asked the court to submit to the jury the following question, to wit: “ (1) Did the blank upon which the deed in question, purporting to convey the premises from Ellen Eyan to Phil JS. Bycm, was written, contain upon the upper right-band corner, upon the line near the top margin on the deed, the words: £ M. J". Cantwell, Law-Blank Publisher, Madison, Wis.’ ? ” The court submitted that question to the jury, with the following remark: “ If you have understood the instructions which I have given you, the answer to that question, one way or the other, would not necesr sarily alone determine your verdict; and if you should say ‘ Yes,’ and then say ‘Yes’ in answer to this nest question, to wit, ‘ (2) If you find that the deed in question did contain such words, do you further find that the deeds containing such words upon the upper right-hand corner were [not] in existence upon the 24th day of April, 1884? ’ ” — which last question was submitted with the following remark: “ If you answer both those questions favorably to the defendant, it would be consistent with a general verdict for the defendant, and inconsistent, gentlemen, with any other.”</p> <p>The court thereupon charged the jury generally, and, after such charge, they retired to deliberate over their verdict, about 5 o’clook in the afternoon of November 30,1889, and continued such deliberation until 9:40 p. m., when they returned into court with a general verdict in favor of the plaintiff, and assessing his damages at $1,896.44, and-at the same time with an answer “ Yes ” to said question A propounded by the plaintiff’s counsel, and both said general verdict and said answer and question A were thereupon handed to the judge and laid by him on his desk. The court thereupon informed the jury that they had not answered questions 1 and 2 propounded by defendant’s counsel. Tbe foreman thereupon replied that be did not suppose it was necessary since they bad answered said question A. Tbe court replied to tbe effect that it was necessary to answer tbe first question propounded by tbe defendant’s counsel; that, if they answered that question “ No,” it would not be necessary to answer No. 2; but if they answered that question “ Yes,” then it would be necessary to answer No. 2. Tbe general verdict and answer to said question A remained lying on tbe court’s table all this time, and until tbe jury finally returned into court with answers to questions 1 and 2 propounded by defendant’s counsel. Tbe court thereupon amended said second question by striking out the word “ not.” Tbe jury then retired again, and, after an absence of one hour and twenty minutes, returned into court with an answer “ Yes ” to tbe first question propounded by the defendant’s counsel, and tbe foreman then and there stated to tbe court that they bad found, as an answer to tbe second question submitted by tbe defendant’s counsel, tbe following, to wit: “ That there was this one deed in existence on tbe 24th day of April, 1884, or tbe blank on which it was written, with those words upon tbe upper right-hand corner.” Tbe court thereupon asked tbe jury if be should write tbe answer to tbe said question in that way, and they answered “Yes.” Tbe same was thereupon written accordingly, and tbe court received all of said answers and said general verdict as the verdict in said cause, and thereupon discharged tbe jury. Everything that took place between tbe court and tbe jury, as above statqd, subsequent to tbe time that they first retired,— about 5 o’clock in tbe afternoon,— was in tbe absence of tbe defendant’s counsel, and without any notification to such counsel to be present.</p> <p>The defendant thereupon moved tbe court, upon its minutes, to set aside said general verdict and findings and for a new trial for several reasons; among others, as being against tbe evidence, and against tbe law and evidence, and contrary to tbe instructions of tbe court, and for tbe several things that occurred in relation to tbe findings and verdict in tbe absence of defendant’s counsel as stated, because tbe jury bad failed to answer tbe second question propounded by tbe defendant’s counsel, and because tbe answers were evasive and unwarranted, and tbe findings. of tbe jury inconsistent. Tbe motion was overruled, and judgment was thereupon ordered upon said verdict and findings in favor of tbe plaintiff. From tbe judgment entered thereon, tbe defendant appeals.</p>

<p> Accident insurance: “Loss of two entire feet.” </p> <p>An insurance policy provided that the principal sum should be paid if the insured, from a violent and accidental injury which should be externally visible, should “ suffer the loss of the entire sight of both eyes, or the loss of two entire hands, or two entire feet, or one entire hand and one entire foot.” The insured was accidentally shot in the back, the bullet penetrating his spine and producing immediate and total paralysis of the lower part of his body, and entirely destroying the use of both feet. Held, that he had suffered “the loss of two entire feet,” within the meaning of the policy.</p>

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>The following statement of the case was prepared .by Mr. Justice Taylor as a part of the opinion:</p> <p>This is an action to recover damages for a personal injury which the plaintiff claims was caused by the negligence of the defendants. The defendants were operating a railroad running through the city of Oshkosh, at and before the time the plaintiff was injured. The plaintiff sustained the injury complained of in attempting to cross the tracks of the defendants’ railroad where they cross Jackson street, one of the public streets of said city. The facts are substantially as follows: On the day the injury occurred, the plaintiff was driving a team of horses attached to an empty stone wagon on Jackson street in said city. As he approached from the north the place where the railroad tracks crossed that street, a train of tbe defendants’ cars obstructed tbe street. Plaintiff stopped bis team on tbe north side of tbe crossing, and waited until tbe train moved from tbe street along wbicb be was driving, tbe train moving to tbe east or northeast, and, as soon as tbe train with engine attached bad backed out of the street, a flagman of tbe defendants stationed at this crossing indicated to tbe plaintiff that tbe way was clear for him to pass. Tbe plaintiff started bis team immediately, and moved towards tbe track. "When be reached tbe track tbe engine attached to tbe train that bad obstructed tbe. way moved forward towards tbe crossing and near to tbe plaintiff’s horses. Tbe horses became frightened and unmanageable, and ran away, and threw tbe plaintiff from tbe wagon and broke bis leg. These facts are undisputed, except that tbe testimony of tbe defendant tends to show that the engine was at least seventy-five feet east of tbe crossing when tbe plaintiff’s horses became frightened and unmanageable, and was backing away from tbe street, instead of towards tbe street as claimed by tbe witnesses on tbe part of the plaintiff.</p> <p>Tbe testimony on tbe part of tbe plaintiff shows that plaintiff stopped bis team within about thirty feet north of tbe railroad track when be approached tbe crossing on Jackson street. Tbe street was then blocked, and, after waiting about ten or fifteen minutes, tbe engine and cars moved northeasterly off Jackson street, and behind a blacksmith shop wbicb stood on tbe corner of Jackson street and northerly from and near tbe railroad tracks. Tbe engine was at tbe west end of tbe train, and backed tbe cars easterly across Jackson street, and as soon as tbe engine liad backed from tbe street it was bidden from the view of tbe plaintiff by tbe blacksmith shop; and tbe flagman of tbe defendants, standing on tbe south side of tbe tracks and in full view of tbe engine, signaled tbe plaintiff to come across tbe tracks. The plaintiff started immediately upon receiving the signal, and when his team had gotten upon the railroad tracks the engine returned from the east and from behind the blacksmith shop, and came within twenty feet of the team and within the limits of Jackson street, making a great deal of noise, and blowing off steam from the cylinder cocks and from the escape valve.</p> <p>The evidence also shows that while the street was blocked by the train a dozen or more teams had approached the crossing and were waiting to pass along the street and over the tracks of the railroad. The evidence also tended to show that the team the plaintiff was driving had been frightened by the engine and cars at the same place about fourteen days previously, when driven by the plaintiff, and had then become unmanageable and run away. There was also some other evidence which tended to show that this team was excitable and difficult to manage in the vicinity of a railroad engine and train.</p> <p>On the trial in the circuit court the jury returned a special verdict as follows: “ Fi/rst. Were the defendants or their servants guilty of negligence that contributed to the injury of the plaintiff? Answer. Yes. Second. If you answer the foregoing question ‘yes,’ state in what particular such negligence consisted. A. In the flagman’s signal to the plaintiff to cross when the engine was too near, and engine allowed to make more noise than necessary. Third. Was the plaintiff guilty of negligence that contributed to the injury? A. No. Fourth. If the plaintiff is entitled to judgment, at what sum do you assess his damages? A. $1,000.”</p> <p>Judgment was entered in favor of the plaintiff for the damages found, and costs, and the defendants appeal to this court, and assign as reasons for the reversal of the judgment the following: “ Fi/rst. It was error to permit the plaintiff’s witness Narrow to answer the following question: ‘Well, now go on and state while you owned the horses as to them being fractions or wild, or vicious qi; gentle.’ Second. It was error to permit the plaintiff to answer the following question: ‘ Did John Monaban or anybody else ever warn you about this team? ’ Third. It was error for the court to refuse to submit the questions to the jury asked by the defendants [hereinafter set forth]. Fourth. It was error for the court to give the instruction asked by plaintiff [hereinafter set forth]. Fifth. It was error to refuse the instruction asked by defendants [hereinafter set forth]. Sixth. It was error for the court to refuse the instruction as asked by defendants, and error to modify it as modified by the court, and error to ref use. the latter portion of the instruction wholly.”1</p>

EXCEPTIONS from the Circuit Court for Dane County. The case is sufficiently stated in tbe opinion. They contended, i/nter alia, that the affidavit upon which the charge of perjury was based was wholly ineffective because it failed to set forth the facts as required by the statute under which it was made. Perjury cannot be assigned upon immaterial statements. Plath v. Braunsdorff, 40 Wis. 101; 2 Bish. Grim. Law (6th ed.), sec. 1030. Nor upon a legal conclusion.

<p>APPEAL from, tbe Superior Court of Milwaukee County.</p> <p>This action was commenced February 21,1890, to obtain tbe annulment of a marriage, under sec. 2350, E. S. Tbe complaint alleges that tbe parties intermarried at tbe city of Milwaukee, in this state, January 5, 1890; tbat they have been residents of this state for tbe period of one year or more immediately preceding tbe commencement of tbe action; tbat at tbe time of said marriage tbe plaintiff bad not attained tbe age of eighteen years, but was of tbe age of fifteen years on tbe 23d day of February, 1889; and tbat be bas not yet attained tbe age of eighteen years. Tbe relief demanded is tbat such marriage be decreed void from such time as shall be fixed by tbe judgment of tbe court.</p> <p>Tbe defendant demurred to tbe complaint on tbe grounds tbat it appears therefrom tbe court bas no jurisdiction of tbe person of tbe plaintiff or tbe subject of tbe action, and tbat it does not state facts sufficient to constitute a cause of action.</p> <p>After tbe demurrer was interposed, tbe plaintiff amended bis complaint by adding thereto tbe following averments: “ Tbat on tbe day of said marriage, and on tbe day succeeding said marriage, tbe plaintiff and defendant bad or attempted to have sexual intercourse, but at no time since said marriage have they lived together or cohabited as man and wife, or bad or attempted to have sexual intercourse, except as aforesaid, and there is no possibility of issue of said marriage.” Tbe demurrer (which bas been regarded and treated on all bands as a demurrer to tbe amended complaint) was overruled by tbe superior court. Tbe defendant appeals from tbe order overruling tbe same.</p> <p>They contended, inter alia, tbat since our statute fixing tbe age of consent does not by express words declare marriages under such age void, it affects only their legabty and not their validity. Oatterall v. Sweetman, 1 Eob. Ecc. 304, 31Y, 320; Meister v. Moore, 96 U. S. T6, T9; Blackburn v. Orawfords, 3 Wall. 1Y5, 185, 194; CJamgbelVs Adrnir v. OuTlatt, 43 Ala. 5Y, 6Y, 68; Parle v. Barron, 20 Ga. 702; Asleew v. Dupree, 80 id. 173; Stevenson v. Bray, 17 B. Mon. 193; Harrison v. State, 22 Md. 468; Jones v. Jones, 45 id. 144, 159; Hutchins v. Kimmell, 31 Mich. 126; Bielcerson v. Brown, 49 Miss. 357; Jlcurgroves v. Thompson, 31 id. 211; Dyer v. Brannocle, 66 Mo. 391; Walter’s Appeal, 70 Pa. St. 392; Bodebaugh v. ScmiIcs, 2 Watts, 9; Pearson v. Howey, 11 N. J. Law, 12; State v. Bobbins, 6 Ired. Law, 23; Pede v. Pede, 12 R. I. 485. A marriage good at the common law is good notwithstanding any statute on the subject, unless the statute contains express words of nullity, that is, unless it prohibits the marriage absolutely and declares it to be void. 1 Bish. M. & D. sec. 283; Catterall v. Sweetma/n, 1 Rob. Ecc. 304; Stallwood v. Tredger, 2 Phillim. 287; Londonderry v. Chester, 2 N. H. 268; Pea/rson v. Howey, 11 N. J. Law, 12, 19, 20, opinion oh Fobd, J.; Bodebaugh v. Sanies, 2 Watts, 9, 11; Helffenstein v. Thomas, 5 Rawle, 209; State v. Bobbins, 6 Ired. Law, 23; Hewbu/rg v. Brunswiele, 2 Yt. 151; Bacon v. Higgins, 3 Stark. 178; King v. St. Faiths, 2 Dowl. & R. M. C. 38; Dumarsly v. Fislily, 3 A. K. Marsh. 368; Bex v. Birmingham, 8 B. & O. 29, 34; Hargroves v. Thompson, 31 Mo. 211; Parle v. Barron, 20 Ga. 702; Stevenson v. Qra/y, 17 B. Mon. 193, 209; Ferrie v. Public Adm’r, 4 Bradf. 28; Bashaw v. State, 1 Yerg. 177; Milford v. Worcester, 7 Mass. 48, 55; Holmes v. Holmes, 6 La: 463; Cannon v. Als-bury, 1 A. K. Marsh. 76; Parton v. Hervey, 1 Gray, 119; White v. Lowe, 1 Redf. 376; Campbell’s Adm’r v. Bullatt, 43 Ala. 57; Blacleburn v. Cranfords, 3 Wall. 175; State v. Murplvy, 6' Ala. 765; Borthfield v. Plymouth, 20 Yt. 582. Our statute fixing the age of consent is permissive, and does not repeal the rule of the common law. 1 Bish. M. & D. sec. 145; Goodwin v. Thompson, 2 Greene (Iowa), 329 ; Parton v. Hervey, 1 Gray, 119; Bermett v. Smith, 21 Barb. 439; Fitspatricle v. Fitzpatricle. 6 Nev. 63. The rules of the common law cannot be repealed by implication, but the intent to repeal them must be clearly expressed. Meek v. Pierce, 19 Wis. 300; Orton v. Noonan, 29 id. 541.</p> <p>They argued, among other things, that under the statutes of this state the age of consent has been raised to fifteen in females and eighteen in males; that a marriage between parties either of whom is below the age of consent, if not absolutely void, is at least voidable by the party below the age of consent at any time while within the age of consent, or at any time after he has arrived at that age if he has not ratified the marriage after arriving at that age. R. S. secs. 2328, 2329, 2350, 2353; Circuit Court Rule XXIX, sec. 1; People v. Slack, 15 Mich. 193; People v. Bennett, 39 id. 208; Noltz v. Dick, 42 .Ohio St. 23, 51 Am. Rep. 791; Shafher v. State, 20 Ohio, 1; McDowell v. Sapp, 39 Ohio St. 558; McDeed v. McDeed, 67 Ill. 546; Fitzpatrick v. Fitzpatrick, 6 Nev. 63; Koonce v. Wallace, 7 Jones (N. C.), 194.</p>

<p>EEEOE to the Circuit Court for Outagamie County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>The information charges the plaintiff- in error with wil-fully and feloniously assaulting and shooting John Higgins, with intent to kill and murder him, June 25,1887. To that charge the accused pleaded “ not guilty.”</p> <p>In charging the jury, the learned trial judge stated, in effect, that the testimony on the part of the state tended to establish that the defendant was a farmer, and had for twenty years and upwards lived in the town of Chilton, Calumet county; that he was married about twenty years before, and by his first wife had several children, some of whom were quite young, and others partially grown up; that in 1885 his first wife died; that June 14, 1887, he married another woman, and took her to his home; that on Saturday evening, about 9 or 10 o’clock, June 18, 1887, a company of young men of the neighborhood, to the number of fifteen or more, went into the road beside the defendant’s house, with guns, cow-bells, sap-pans, saws, and various other things; that they sent one of their number to the door of the defendant’s house, and asked him for five or ten dollars to invest in beer or other refreshments; that the messenger went to the door, and informed the defendant, in substance, that the boys were in the road, and wanted five or ten dollars for refreshments, and would not give him a eha/rwa/ri if he advanced the money; that he refused to give them anything, and ordered them away; that the company then serenaded him for some time with gunshots, by blowing horns, beating on pans and fences, and perhaps with other noises; that on Wednesday evening, June 22, 1887, most of the party returned, and went through similar performances for some one or two or more hours; that on Saturday evening, June 25, 1887, about the same parties again assembled near the defendant’s house, in the road, and for some time proceeded to fire guns, beat on pans, blow with horns, etc.; that after a season the defendant fired into the assembly of people there collected, at first with fine shot from a gun, and then in a moment after with ball from a gun or pistol; that some seven or eight of the people there assembled w;ere wounded by the shot, and the complainant, John ITiggins, with the ball fired; that ithe testimony on the part of the defense was substantially to the same effect, with the exception that it tended to prove that the conduct of those assembled was of a more aggravated character in several respects than represented by the testimony on the part of the state; that such testimony tended to prove that on the first night $15 was demanded of the defendant by the company, with threats that, if he did not advance them that amount, they would come in the future and demand more money; that they called the defendant vile and indecent names; that they threw a heavy missile against his house on one or more of the evenings ; that they used obscene language to. him in the hearing of his family; that they fired guns so that it appeared as if a battle was going on; that they called out to each other to load with balls and shoot the' defendant; that they pulled up his hitching post and broke his fence on one occasion; that on the second evening they cut an obscene figure on one of his gateposts; that, after his premises had been visited the second time by said parties, the defendant purchased powder and shot; that on the first and third evenings he went out near to the assembly to see if he could identify any of them, and could not do so; that the defendant’s wife and small children, or child, were in great fear and terror, so much so that his wife has ever since had her nerves affected, and his youngest child was so alarmed that for some days or weeks she would wake up in the night, and scream with fright occasioned by those disturbances; that finally, on the last night they were there, the defendant went to a neighbor, and borrowed a double-barreled gun, having one barrel charged with powder and shot, and the other with powder and ball, as that barrel was for balls and did not carry shot without injury; that, when about 150 feet from the assembly, he fired the barrel charged with powder and shot in the direction of them; that they did not appear to mind that, and so, in a short time thereafter, he fired the barrel charged with powder and ball in the direction of the crowd, and on both occasions fired low, so that, if any one was hurt, serious injury would not be inflicted; that he had no intention of Idlling any one, and he avers and says he only tried to scare them away, to protect his wife and child from the danger they were in and from the fear they were suffering; that there is no proof or claim that the defendant, at the time of discharging his gun, of at all on that last night, had ordered the said Higgins, or those with him, to go away from his premises, or to desist from making the noise which they were engaged in making.</p> <p>At the close of the trial the jury returned a verdict of guilty of an assault merely. Upon that verdict the court entered judgment fining the defendant $10 and $371.20 costs. To review that judgment the defendant has sued out this writ of error.</p> <p>As to the inadmissibility of the evidence relating to an unlawful custom, they cited Nawhins v. State, 50 Am. Rep. 129; Seagar v. Sligerland, 2 Caines, 219; Banlms v. State, 4 Ind. 114; Lawson, Usages, 61, 62, 460, 461.</p>

<p>APPEAL from the Circuit Coiu-t for Wood County.</p> <p>Action for the wrongful conversion of chattels. The facts will sufficiently appear from the opinion. The defendant appeals from a judgment in favor of the plaintiff.</p> <p>argued, among other things, that a witness cannot testify as to the intentions of anothey, but must speak from facts within his own knowledge, and not the inferences that he may draw from the facts or circumstances known to him. Bump, Eraud. Conv. 553; Pealce v. Stout, 8 Ala. 647. The debtor may testify as to his own intent. Forbes v. Waller, 25 N. T. 430. And the purchaser as to Ms own intent. Bedell v. Ohase, 34 N. T. 386. But the opinions of parties are of very little weight, and entitled to little consideration. Worh v. Filis, 50 Barb. 512.</p>

<p>APPEAL from the Circuit Court for Bcme County.</p> <p>Proceedings for the condemnation of land taken by the defendant railroad company. A former appeal is reported in 72 Wis. 471. Upon an appeal from the award of the commissioners the trial in the circuit court resulted in a verdict as follows: “ (1) What was the fair market value, at the time it was taken, of the earth and material which was taken from the part of the plaintiffs’ lot in Main street in order to restore the street to such condition as that its usefulness should not be materially impaired? Answer. $56.25. (2) What amount of damage to plaintiffs’ lot was occasioned by cutting down and restoring the street in front of the same, and by constructing and operating the railroad where the same was and is now built? A. $2,000; interest, $91 — total, $2,091. (3) What part of said damage was occasioned by cutting down the street ? A. $1,750 ; interest, $79.625 — total, $1,829,625. (4:) What part of said damage was occasioned by the operation of the railroad? A. $250; interest, $11,375 — total, $261,375.” Upon this verdict, judgment for the whole amount thereof, to wit, $2,14:7.25, with costs, was entered in favor of the plaintiffs. The defendant appeals.</p> <p>contended that the trial court erred in giving judgment for the damages occasioned by the operation of the railroad. The rule of damages applicable to a permanent taking of land, whereby title passes to the company, should not be applied to a temporary taking whereby no title passes and no continuing possession is given, and which is not taken for the purpose of “ operating the proposed railroad ” (sec. 184:6, R. S.), but is taken for the purpose of “ restoring a public street to its former state, or to such condition as that its usefulness ” (as -a street) “ shall not be materially impaired,” and which street, as changed, is to be held “ by the same tenure by which the adjacent parts thereof are held ” (sec. 1836). Had the railroad been constructed across Main street, where it now is, on grade, instead of below grade, there would have been no liability for the incidental, remote damages resulting from the operation of the road. Heiss v. M. db L. W. B. Go. 69 Wis. 555; Trustees v. M. db L. W. B. Go. 77 id. 158. But the injuries for which damages are sought are no greater or different from the fact that the road passes below grade. Had the city lowered the grade, as it might have done {Slatíen v. JD. M. V. B. Go. 29 Iowa, 155-6; Mwplvy v. Obicago, 29 Ill. 279, 287; Jamestown v. G., B. db If. B. Go. 69 Wis. 648; Oconto v. G. db U. W. B. Go. éí id. 231), it would not have been liable for these damages. And if the city had lowered the grade and paid the damages for wbicb it was liable, there could be no additional recovery against the company. The liability of the company, is no greater than that of the city. Ottawa, O. G. <& G. G. B. Go. v. La/rsen, 2 Law Eep. Ann. 61, and cases cited; Bail-road v. Bingham, 87 Tenn. 522; Wilson v. N. Y. Q. do H. B. B. Go. 2 N. T. Supp. 65; Fgerer v. N. 7. G. do II B. B. Go. id. 69 \ In re New Work F. B. Go. 36 Hun, 427; S. O. 41 id. 502; Pa/rrot v. G., JZ. do JD. B. Go. 10 Ohio St. 624; Penn.,S. Y. B. Go. v. Walsh, 124 Pa. St. 544; Penn. B. Go. <v. Lvpjgineott, 116 id. 472; New Gasile da F. B. Go. v. MoChesney, 85 id. 522.</p>

<p>APPEAL from tie Circuit Court for Outagcumie County.</p> <p>The action is in equity to remove a cloud upon the title to certain lands of the plaintiff. The case is as follows:</p> <p>On December 31, 1888, the plaintiff, W. D. Main, then being the owner of a certain parcel of land in Outagamie county, which he occupied as his homestead, conveyed the same by deed of warranty to his brother, Gilbert S. Main. Such, conveyance is absolute on its face. The wife of the plaintiff joined therein. The conveyance was executed without consideration, pursuant to a parol agreement between the parties thereto that the grantee, Gilbert S., should execute a mortgage thereon to secure a loan for $600 for his own benefit, and should then recouvey the land to the plaintiff. Gilbert S. effected the loan, and executed a mortgage therefor on such land. A few daj^s later the defend' ants Bosworth, Soplmis, and Soph-ms (who were partners) filed in the office of the clerk of the circuit court of Outa-gamie county a transcript of a judgment recovered by them in 1884, in the circuit court of Waupaca county, and issued an execution thereon to the defendant the sheriff of Outagamie county, who levied upon, advertised, and, on May 24, 1889, sold, the land in question under the execution for a sum apparently sufficient to pay the judgment, interest, and costs. The defendant B. B. Soph-ms was the purchaser at such sale, and a certificate thereof was issued to him, a duplicate of which was duly filed in the office of the proper register of deeds. On June 21, 1889, Gilbert S. Main reconveyed the land to the plaintiff pursuant to such parol agreement. The plaintiff, during the whole time of these transactions, remained in the actual and exclusive possession of the land.</p> <p>The foregoing facts (and some others not material to the determination of the case) appear from the pleadings, proofs, and findings of the court. The sheriff made no defense to the action. The relief demanded in the complaint is that the execution sale, the certificate thereof, and any apparent lien of the judgment and sale upon the land, be set aside, vacated, canceled, and removed.</p> <p>A trial of the action resulted in a judgment for the plaintiff for the relief prayed. The defendants Bosworth, Sop-Idns, and Sophins appeal from the judgment.</p> <p>They contended, inter alia, that a judgment creditor purchasing land at his own execution sale, and as a consideration thereon paying only the amount due on his own judgment with costs of sale, is a purchaser in good faith for a valuable consideration, within the recording act, and is protected thereby. Elite v. Brown, 31 Wis. 405; Gircvrdvn v. Lampe, 58 Id. 261, and cases cited; Wood v. Chapin, 13 N. Y. 509; Ba/rto v. Tompki/ns Co. Nat. Bo/nk, 15 Hun, 11; Hionter v. Watson, 12 Cal. 363; Humphrey v. McGill, 59 G-a. 649; Dixon v. Cook, 47 Miss. 226; Ingrrni v. Belli, 2 Strobh. (S. C.), 201; Wallace v. Campbell, 54 Tex. 87; Massey v. Westoott, 40 Ill. 160; Gower v. Doheivy, 33 Iowa, 36; Evans v. McGlasson, 18 id. 150. A properly recorded certificate of an execution sale is a “ conveyance ” within the statute of registration. R. S. secs. 2241, 2242; Drahe v. MoLea/n, 47 Mich. 102. The agreement between the plaintiff and his brother was in the nature of a secret trust, and, resting in parol, is void and cannot be enforced or invoked in aid of either of the parties thereto. The plaintiff is estopped by his deed and by his acts from denying his brother’s title to the land. With full knowledge of all the facts he stood by and permitted the property to be sold as his brother’s without objection. Kloety v. Delies, 45 Wis. 484; Cooley v. Wilson, 42 Iowa, 425; Brothers v. Porter, 6 B. Mon. 113; Da/vis v. Tingle, 8 id. 542; Crawford v. Bertholf, 1 N. J. Éq. 460; Coil v. Wallace, 24 N. J. Law, 291, 313; Bigney v. Smith, 39 Barb. 383; Anderson v. Armstead, 69 Ill. 452; Higgins v. Ferguson, 14 id. 269; Wmchell v. Ed~ wm'ds, 57 id. 41; Continental Nat. Brnik v. Nat. Bank, 50 N. Y. 575; 4 Kent’s Comm. 261, note b; Cox v. Buck, 3 Strobh. 367.</p> <p>argued that parol evidence was properly admitted to prove the purpose for which the plaintiff deeded the land to his brother, and that the reconveyance related back to the date of that deed. Karr v. WasJiburn, 56 Wis. 303; Lefferson v. Dallas, 20 Ohio St. 68; First Wat. Barnik v. Bertschy, 52 Wis. 438; Wells v. Benton, 108 Ind. 585. When the transcript was filed and docketed G. S. Main had no right or interest in the land which became subject to the hen of the judgment. 2 Pomeroy, Eq. Jur. sec. 721; Freeman, Judg. sec. 357; Goodell v. Blwmer, 41 Wis. 436; Ells v. Tousley, 1 Paige, 280; Morris v. Mowatt, 2 id. 586; Brown v. Pierce, 7 Wall. 205, 218; Balter v. Mor-ion, 12 id. 150; Arnold v. Patrick, 6 Paige; 310, 315. The defendant B. B. Koffkms was not a purchaser in good faith at sheriff’s execution sale, because: (1) The plaintiff was and remained in the actual, open, continuous occupancy and possession of the land for years next preceding and to the trial •of this action. Bull v. Bell, 4 Wis. 54; Wiclte v. Lake, 21 id. 410;. McOlella/n v. Scott, 24 Wis. 81; Elite v. Brown, 31 id. 405, 413; Gunningha/m v. Brown, 44 id. 72. (2) Said defendant is one of the judgment creditors and purchased on sale under his judgment, paid no new consideration, and parted with no right or advantage by the sale and purchase. Freeman, Judg. sec. 366a; Gary v. White, 52 U. Y. 128; 2 Am. & Eng. Ency. of Law, 444. The rule of estoppel contended for by the defendants cannot apply here because neither of them was influenced or governed in his actions by the silence or absence of the plaintiff.</p>

<p>APPEAL from the Circuit Court for Outagamie County.</p> <p>The following statement of. the case was prepared by Mr. Justice Taxloe as a part of tbe opinion:</p> <p>The facts in this case are substantially as follows: In 1861, Matbias Olsen died intestate, leaving tbe respondents, Ms children. Julia was then one year old, and Martha less than two years old. Mathias left no estate, and no administrator of his estate was appointed. On October SO, 1866, it was known that the grandfather of the respondents had left them a small sum of money, and on tbat day tbe appellant was duly appointed guardian of said minor children. After-wards, in 1867, as such guardian, he received the money left by their grandfather, amounting to the sum of about $440. In 1869 the appellant filed in the office of the county judge an account as guardian, and again in 1872 he filed another account in said county court. The county court rejected and disallowed all the items of credit in said accounts so filed, excepting the sum of $12.22. No appeals were taken from the action of the county court in regard to these accounts by the appellant, and perhaps no appeal was allowable, or necessary to protect the rights of either party. Nothing further was done in regard to the guardianship of the appellant until June, 1886, when, upon the application of the respondents, the county court of Brown county cited the appellant to appear before that court and render a final account of his guardianship. In pursuance of said citation the appellant appeared before said county court, and rendered an account as such guardian, and after hearing the evidence of the respective parties the county court made the following-order and judgment therein:</p> <p>“ On the 1st day of June, 1886, at a term of the county court, the said minors being represented by their attorneys, Messrs. Hudd & 'Wigman, and the guardian by his attorney, H. J. Huntington, after hearing proofs and allegations, the court found (1) that the guardian was duly appointed, and accepted the trust by giving bon'd in the sum of five hundred dollars, with Oasper Hansen as surety, which bond was accepted and .approved October 30, 1866; (2) that on the 1st day of May, 1869, Thompson, as guardian, presented to said court his account, which was on the 7th day of February, 1870, duly examined and passed on by the court; (3) that said JuTAa arrived at full age January 23, 1881, and said Mcurthco, July 28,1882, when they each became entitled to a full accounting by said guardian,— and ordered and adjudged that Thompson render a full account of bis guardianship on or before June 15,1886, and that the same be for examination and settlement at 11 o’clock a. m. on said day, and that five days’ notice of same be givén him.”</p> <p>On June 15, 1886, at a term of the said county court, an order was entered reciting the appearance of both parties, the presence and examination of the guardian, and the following findings: First. That the amount properly chargeable to said guardian July 28, 1882, the date at which the youngest ward came of age, was $161.15; second, that the amount properly allowed and credited to him as of the date last aforesaid is $252.19; tlwrd, that the residue in his hands consists of money amounting to $514.96, as per Schedule A, hereto annexed; fourth, that the said Julia and the said Martha are entitled to said residue. Wherefore it is ordered and adjudged that the account of the guardian, as stated herein, be, and the same is hereby, approved and allowed. That the residue, $514.96, be assigned as follows: To Julia, $257.48, and to Martha, $257.48, each of said sums to bear interest from July 28, 1882, at 7 % per annum until paid. And that on payment of said sums the guardian be discharged.</p> <p>From this judgment the guardian appealed to the circuit court of Brown county. The case was then removed to Outagamie county, and was there retried before. a referee appointed by the court to hear, try and determine the same. The referee made his report and judgment, and thereby found the same amount due from the guardian to the respondents as was found by the county court.1 The circuit judge affirmed tbe finding and judgment of tbe referee in all respects, and from tbe judgment of tbe circuit court tbe guardian appeals to tbis court.</p>

<p> Appealable orders. </p> <p>1. An order modifying certain findings of fact and conclusions of law-in a manner different from that asked, and refusing to modify others, is not appealable.</p> <p>2. An order taxing or relaxing costs is not appealable.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: It appears from the record that this is an action for money had and received by the defendant as agent for the plaintiff in the sale of lands; that the defense is a general denial and new matter alleged; that, June 23,1889, a judgment was rendered in justice’s court in favor of the plaintiff; that, October 14,1889, a verdict was rendered in the circuit court, on appeal, in favor of the defendant; that,…

Eeplevin. The facts will sufficiently appear from the opinion. The defendant appeals from the judgment entered upon a verdict in favor of the plaintiff.