Volume 78 — Wisconsin Reports

It is alleged in the complaint that on October 15, 1883, the defendant sold and delivered to the plaintiff, at the county of Waukesha in this state (in which county plaintiff resides), 100 shares of stock in the Arizona Peerless Silver Mining Company, a corporation, etc., for $3,000, which sum the plaintiff then paid defendant therefor.

<p>APPEAL from the Circuit Court for Washington County.</p> <p>The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion:</p> <p>This action was brought to recover damages for injuries received on the 5th of April, 1888, while the plaintiff was a passenger upon one of the passenger trains of the defendant. The injury was caused by tbe derailment of the car in which the plaintiff was riding at the time.</p> <p>The plaintiff was on the train going from the city of Milwaukee to Bridgewater in the then territory of Dakota, and while being so transported as a passenger the train was thrown from the- track while crossing a small river near the town of New Hampton in Iowa, and the plaintiff among others was injured. The cause of the derailment of the train was a sudden rise of the water in said river, and the breaking up of the ice in the same, and probably by a large piece of ice having been pushed upon the track of the road by the rising water. The accident happened in the nighttime, and while there was a dense fog along the track at the place of the accident and for some distance along the track before reaching the place where the engine collided with the ice and left the track. The complaint charges that the railway company was negligent in not constructing its track at the place of the accident with sufficient openings for water-way and floating ice, and for other defects in the track, and also was negligent in running the train at a high rate of speed at the time the accident occurred. The answer admits the fact of the derailment of the train, and denies all negligence either in the construction of the track at the place of the accident or in keeping the same in repair, as well as all negligence in running the train.</p> <p>The action was commenced in the circuit court for Washington county. In due time the defendant filed an affidavit of the prejudice of the circuit judge, and also another affidavit alleging prejudice of the people of Washington county against the defendant, stating the cause of such alleged prejudice, and asked to have the case removed to some other county where such prejudice did not exist. The learned circuit judge declined to remove the cause to another county, and, under the provisions of ch. 435, Laws of 1887, called upon Judge Winslow to try the case in Washington county. Judge Winslow responded to the call, and appeared and held court in Washington county to try the case. Before the case was called for trial, on the day fixed for the trial, defendant filed an affidavit for a continuance, alleging as a ground for such continuance the absence of a material witness, and stating the reasons for his not being present. This motion was overruled, and the defendant duly excepted. Upon denying this motion for a continuance, the judge said, among other things, “ that he would not continue the case, because it would work a removal of said cause from the county of Washington.”</p> <p>After the refusal to continue the cause, the case was tried and the jury returned a verdict in favor of the plaintiff for the sum of $6,135 damages. A motion for a new trial was made by the defendant and overruled, and judgment rendered in favor of the plaintiff, from which the defendant appeals to this court.</p>

<p> Master and servant: Defective machinery: Court and jury. </p> <p>In an action for personal injuries alleged to have been sustained by reason of the want of repair of the machinery of a power grain shovel which the plaintiff was operating, it is held that the evidence (stated in the opinion) tended to show that the injuries were caused by a defect in such machinery which had existed for a sufficient length of time for the defendant to have known of it, and that it did not show that the plaintiff was guilty of contributory negligence. It was error, therefore, to direct a verdict for the defendant.</p>

<p>APPEAL from the Circuit Court for Waukesha County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>This is an action of ejectment commenced July 23, 1887, to recover a strip of land one foot in width from north to south, lying immediately north of the south line of lot No. 5, in block No. 68, in the Seventh ward of the city of Milwaukee, and extending the same width from the east to the west boundary of said lot, with damages for the unlawful withholding of the same. The answer is in effect a general denial; the plea of another action pending; continuous, exclusive, and adverse possession for the period of twenty years; the statutes of limitation (secs. 4206-4215); and also new matter by way of estoppel m pais. The plaintiff replied a general denial to the counterclaim.</p> <p>The counsel of the parties waived a jury, and upon the trial the court found, as matters of fact, in effect, that- the original defendant, Henry S. Magoon, the testator of the defendants, had not at any time wrongfully occupied or unlawfully held the premises in dispute, or any part thereof, nor the possession thereof; and as conclusions of law, in effect, that the defendant was entitled to judgment dismissing the amended complaint upon the merits. From the judgment entered thereon the plaintiffs appeal.</p> <p>It appears from the undisputed evidence that block 68 mentioned in the foregoing statement, together with other lands in the vicinity, were partitioned by commissioners duly appointed, and a decree of the court made in 1831. That it is therein stated that said commissioners had caused an accurate plat to be made of the premises so partitioned from an actual and accurate survey thereof, which said plat was thereunto annexed as a part of the report of said commissioners. That lot 5 in said block 68, and other lands, aoeordm,g to 'and as designated upon said plat, were therein allotted and assigned to one 'Winthrop W. Grilman, for himself, his heirs and assigns, in severalty forever. That from him the plaintiffs derived title through several mesne conveyances to the whole of said lot 5; that lot 6 in said block 68, as designated on said plat, is immediately south of said lot 5, and was therein allotted and assigned to one William S. Trowbridge, for himself, his heirs and assigns, in sever-alty forever. That from him the original defendant, Henry S. Magoon, derived title through several mesne convey-anees to bbe north 31-J- feet of said lot 6. That said block 68 upon said plat in partition contains twenty-tbree lots numbered from 1 to 23 inclusive; that eleven of those lots — being those numbered consecutively from. 1 in the northeast corner to 11 in the southeast corner, inclusive — front easterly on Jefferson street, and twelve of them — being those numbered from 12 in the southwest corner to 23 in the northwest corner, inclusive — front westerly on Milwaukee street. That along the south end of said block runs Martin street easterly and westerly. That along the north end of said block runs Division street. That the distance, by actual measurement, from the southeast corner of said block 68 to the northeast corner thereof,— being the west line of Jefferson street between Martin and Division streets,— is 678 8-100 feet. That the distance, by actual measurement, from the southwest corner of said block to the northwest corner thereof,— being the east line of Milwaukee street between Martin and Division streets,— is 700 6-10 feet; that upon said plat are these words and figures: “ All full lots are 60 feet wide and 127 feet deep. Streets are 80 feet wide, except Main street, which is 100 feet wide. Scale 200 feet to an inch.” That upon the east end of said lot 1, on said plat, are the figures 74.6, and on the west end thereof the figures 86.5. That upon the west end of said lot 23, on said plat, are the figures 36.6; that, according to said plat, said block 68 only had a frontage on said Jefferson street of 674 6-10 feet — that is to say, 3 48-100 feet less than by said actual measurement. That, according to said plat, such frontage on Jefferson street was 60 feet for each lot, and no more, except said lot 1, which, according to said plat, had a frontage of only 74 6-10 feet. That, according to said plat, said block 68 only had a frontage on said Milwaukee street of 696 6-10 feet,— that is to say, 4 feet less than by said actual measurement. That, according to said plat, such frontage on Milwaukee street was 60 feet for each lot, and no more, except said lot 23, which, according to said plat, had a frontage of only 36 6-10 feet.</p>

<p>APPEAL from tbe Circuit Court for Waukesha, County.</p> <p>Herman ~W. Breitung in bis life-time insured bis life for tbe sum of $3,500, of wbicb $2,000 was by tbe terms of tbe policies payable to bis’ wife, and $1,500 payable to bis son and daughter equally. By bis will, however, tbe said Herman W. Breitung bequeathed $2,000 of tbe insurance money to bis wife and $1,500 thereof to bis son, making no mention of bis daughter. Letters testamentary were issued to F. T. Adler, as executor. Two thousand dollars of tbe insurance money was paid either directly or through the executor to the widow, and $750 was in like manner paid to the guardian of the testator’s son, but the remaining $750 were retained by Mr. Adler, who, besides being the executor of the will, was the guardian of the testator’s daughter.</p> <p>Upon the final accounting by Mr. Adler as executor, in the county -court of Milwaukee county, the guardian of the testator’s son sought to charge him with the sum so retained by him as guardian of the daughter. The county court held that under the will the said sum belonged to the testator’s son, and that Mr. Adler was chargeable therewith as executor. Upon appeal the venue was changed to Wau-kesha county. The circuit court reversed the order of the county court, holding that the $750 in question belonged, by the terms of the insurance policies, to the daughter of the testator, and that Mr. Adler was not chargeable therewith as executor. The record was remanded to the county court with directions to enter a decree accordingly, with costs in favor of the executor and against the guardian of the testator’s son, to be chargeable upon and collected out of the estate of said son. From the order of the circuit court the guardian of the son appealed.</p>

<p>Drainage. (1) Constitutional law: Police power. (?) Pleading: Averment of benefit: Jurisdiction. {3, Jj) Notice: Publication of order: Clerical error. (S) Adjudication of benefits. (6) Supplemental assessment: Work outside of district. (7, 8) Towns: Setting aside assessment of benefits.</p> <p>1. Ch. 169, Laws of 1887, providing for the drainage of certain lands in "Waukesha county, was a valid exercise by the legislature of the police power of the state. Bryant v. Bobbins, 70 Wis. 258, and State ex rel. Balteell v. Stewart, 74 id. 629, followed.</p> <p>2. Under said act a valid assessment might be made upon a town, although the petition did not state in terms that such town as a whole would be benefited by the work.</p> <p>3. Seo. 3 of said act required an order to be made prescribing the notice to be given of the time and place of hearing the petition, which notice should be given by publication, etc. Instead of a formal notice the order itself, containing everything essentia], was published. Held, that this was a substantial compliance with the statute.</p> <p>4. An affidavit stated that such order or notice was published “ four weeks successively, commencing with the number of said paper published December 10,1887, and ending with the paper published December 3, 1887.” Held, that the latter date should manifestly be December 81, and that the affidavit should be treated as amended accordingly, or the error disregarded.</p> <p>6.The commissioners appointed under said act reported that a certain town would “ derive a benefit by the improvement of the highways therein to the amount of $300,” and assessed that sum against the town. The court ratified and confirmed the report and approved the assessment Held, that this was a sufficient adjudication that the town would be benefited in the sum named.</p> <p>6. If necessary to accomplish the objects of said act, the commissioners had power to make a supplemental report and assessment, and also to do work and pay damages m another county pursuant to an amicable arrangement with the owners of the lands in such other county affected thereby.</p> <p>7. The right of a town to set aside an assessment against it, by motion in a proceeding under said act, must rest upon the same grounds as in an action brought to obtain the same relief.</p> <p>8. A town cannot maintain an action to set aside an assessment against it if such action is not brought until after it has levied the assessment as a tax upon the tax-payers and taxable property therein.</p>

<p>APPEAL from the Circuit Court for Waukesha County.</p> <p>The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion:</p> <p>This action was brought by the respondent to recover damages of the appellant for publishing a libel against him in the Eagle News, a weekly newspaper, printed and published in the town of Eagle. The facts in regard to this •case are substantially as follows:</p> <p>The plaintiff and defendant were members of the same Catholic church in said town. The plaintiff had been secretary of said church previous to November 2, 1888, and on that day had settled his business as such secretary with the defendant, who had been elected secretary of said church in his place, and on such settlement the said defendant and Anton Steinhoff gave to said plaintiff the following written statement as to such settlement, to wit:</p> <p>“ St. Theresa’s Church, Eagle, November 2, 1888.</p> <p>“ This certifies that Daniel Olohisy and Hmry M. loibl, treasurer and secretary respectively, have faithfully discharged the duties pertaining to their offices, and have rendered a just and true account of all moneys received by them as such officers, in the name of and for the congregation, and delivered the same to their successors.</p> <p>“FREDERICK Breidenbach, Sec.</p> <p>“ Anton Steinhoee, Treas.”</p> <p>It appears that plaintiff had also been the town clerk of the town of Eagle from'April, 1888, to April, 1889, and at the town meeting in April, 1889, he was' again a candidate for said- office; and the plaintiff alleges that at the April, 1889, election it was reported in said town that he had, 'while secretary of said church, stolen church money. And on the 10th of April, 1889, for the purpose of contradict-,. ing said report, he published in the said Eagle News the receipt, a copy of which is above given. On the 17th of April, 1889, in the nest issue of the Eagle News, a protest purporting to be signed by the defendant and the said Steinhoff was published, of which the following is a copy:</p> <p>“ Protest.</p> <p>“We, the undersigned committee of St. Theresa’s Church, Eagle, Wis., do hereby earnestly remonstrate against an article published in the News of last week. We pronounce the whole article a base fabrication, and the signatures attached thereto a forgery. Frederick Breidenb'ach.</p> <p>“Anton Steinhoee.”</p> <p>On the 15th of May, 1889, the following retraction was published in the Eagle News, to wit:</p> <p>“ Retraction.</p> <p>“ The undersigned, after ascertaining that they had signed a paper on November 2d, 1888, as published in the News, April 10, 1889, believing, however, that they had only signed an ordinary receipt for money received, do hereby withdraw their protest in the News of April 17th, 1889.</p> <p>Fred. Breidenbach.</p> <p>“ Anton Steinhoee.”</p> <p>This action was commenced on the 25th day of April, 1889, by service of, a copy of the summons and complaint upon the defendants personally. On the trial of the action, the defendant Steinhoff was discharged, as there was no evidence showing that he either signed the libel or authorized it to be signed or to be published. As to the appellant, the evidence shows that he signed his own name to the an tide published on the 17th of April, as well as the name of Steinhoff. Its actual publication in the Eagle Hews was fully established by the evidence. The only defense attempted to be made by the defendant was that he signed the libelous writing not knowing what it was, and that he never authorized its publication in the Eagle News.</p> <p>[There was a verdict in favor of the plaintiff and against the defendant Breidenbach, assessing the plaintiff’s damages at $275; and from the judgment thereon the said defendant appealed.]</p> <p>They contended, mter alia, that the proof should have been confined to the allegation of the complaint which charges publication in the Eagle News, no publication by delivering or returning the libel to the pastor of the church being alleged. &'word v. Martim, 28 Ill. App. 304; Pay son v. Macomber, 3 Allen, 69; Barrows v. Gcwyenter, 11 Gush. 456. To constitute a publication such as will render the publisher liable to an action, the publication must be knowingly, and the publisher must be conscious of its contents. Lcvyton v. Morris, 3 Harr. (Del.), 406; Yiele v. Gray, 10 Abb. Pr. 12; Maloney v. Ba/rt-ley, 3 Campb. 213; Weir v. Moss, 6 Ala. 881; Holt, Libel, 290; Bex v. Abingdon, 1 Esp. Cas. 228; George, Libel, 107.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: The complaint alleges, in effect, that the plaintiff was the owner of lot 1 in block A of Youmans’ addition to Muk-wanago; that said lot fronts on Clarendon avenue in said village; that in November, 1887, and December, 1888, the defendant, without leave of the plaintiff and against his protest, cut down, carried away, and converted to his own use fourteen shade trees standing in that half of said…

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

The action is ejectment to recover 37-100 of an acre of land in Waukesha county. The complaint is in the usual form. The answer is a general denial, and the ten and twenty years statutes of limitation, alleging adverse possession of the land claimed for those periods respectively.

<p> Highways: Injury from, unlawful obstruction: Notice: Pleading. </p> <p>1. la an action against a village to recover for injuries caused by a defect or obstruction in a public street, a complaint alleging that the defendant had knowingly and negligently authorized and permitted the street to be obstructed by a large steamboat resting on wheels and extending across nearly the entire width of the street; that • such steamboat was an object calculated to frighten horses and-endanger the lives and property of persons traveling on the street; and that it had remained in that position for twenty hours previous to the accident in question, which resulted from plaintiffs horse being frightened thereby,— is held sufficient on demurrer. Proof of the facts alleged would at least raise questions 'of fact for a jury as to whether the steamboat was unlawfully remaining in the street and was a dangerous obstruction.</p> <p>2. A general allegation that the notice required by sec. 1339, E. S., was given within the required time is sufficient, without stating particularly the contents of such notion</p> <p>See note to this case in 10 L. R. A. 473.— Rep.</p>

<p>APPEAL from tbe Circuit Court for Waulcesha County.</p> <p>Action to recover damages for tbe breach of a promise to marry. Tbe facts will sufficiently appear from tbe opinion. There was a verdict in favor of tbe plaintiff, assessing ber damages at $1,000: a motion for a new trial was denied; and from tbe judgment entered on tbe verdict tbe defendant appealed.</p>

<p> Insurance against fire: Pleading: Conditions precedent: Option to rebuild: Demurrer. </p> <p>1. In an action on an. insurance policy, a complaint alleging that immediately after the fire the plaintiffs forthwith gave notice to defendant of the loss, and that they have duly performed all the conditions of the policy on their part, sufficiently shows that proofs of loss were forwarded to the defendant within sixty days, as required by the policy.</p> <p>S. An allegation that the defendant has neglected and refused to pay the sum due on the policy, “although more than sixty days have elapsed since said notice and due and satisfactory proofs of loss were duly furnished,” sufficiently shows that sixty days had elapsed since said proofs were furnished, as well as since the furnishing of the notice.</p> <p>ft, The complaint need not allege that the defendant had not, within such sixty days after receiving the proofs of loss, given notice of its option to rebuild. The exercise of such option is a matter of defense.</p> <p>4 A demurrer to a complaint cannot be aided by facts in the record which do not appear upon the face of such complaint,</p>

The plaintiff filed with the common council of the defendant city his claim for $290 for services in preparing drawings and specifications for a cedar-block pavement, being one per cent, on $29,000, the alleged cost of such pavement. The council allowed $60, and disallowed the balance of the claim.. From such disallowance the plaintiff appealed to the circuit court, and the cause was tried therein without a jury.

<p>APPEAL from tbe Circuit Court for Wa/uliesha County.</p> <p>The facts are stated in the opinion. The defendant appealed from a judgment in favor of the plaintiff.</p>

In tbe year 1888, the plaintiffs-were engaged in the business of fishermen, in the waters of Gfreen Bay, and had what is called a pound or pot net set near the direct route from the mouth of Oconto river to Peshtigo harbor. The net was set at right angles to the shore, and extended from near such route where the pot was set about sixty-five rods northeast towards the shore.

The following statement -of the case was prepared by Mr. Justice Tayloe as part of the opinion: This action is brought upon the official bond of ElUoit O. Young as lumber inspector of the second lumber district of Wisconsin. The defendants Withee, Gile, and Anderson are sureties on said bond. The bond is in the form prescribed by the statute, in the penal sum of $5,000.

50, drawn by a firm in Illinois upon the Merchants’ National Bank of Chicago, payable to one Walters, and by him indorsed to the plaintiff. At the same time, plaintiff (who was a customer of the bank and one of its regular depositors) delivered his bank-book to the cashier, and requested that it be then balanced. The book was thereupon written up by a clerk and delivered to the plaintiff. The amount of the draft was not entered therein to his credit.

The following statement of the case was prepared by •Mr. Justice Cassoday : The complaint alleges, in effect, that a short time prior to June 23,1888, the plaintiff was indebted to the defendant Upon several promissory notes and other demands to ■the aggregate amount of $118.05, and that the defendant also held other notes and demands against the plaintiff for collection, amounting in the aggregate to $669.75, making a total of $1,447.80; that a few days prior to June…

Action, to recover damages for tbe injury done to tbe plaintiff’s cranberry marsb by fires alleged to bave been started by tbe negligence of tbe defendant. Tbe marsb embraced about 600 acres of land in Monroe county. Tbe facts will sufficiently appear from tbe opinion. There was a verdict for tbe plaintiff, assessing bis damages at $6,000, and from the judgment entered thereon the defendant appealed.

The facts are stated in the opinion. At the close of the testimony the trial court directed a verdict for the defendant, and from the judgment entered on such verdict the plaintiff appealed. They cited, besides cases cited in thp opinion, Mad Ri/uer da L. F. R. Oo. v. Barber, 5 Ohio St. 541; Howland v. M.!, L. S. c& W. R. Go. 54 Wis. 230; Bullirán v. India Mfg.

This action is to recover possession of a certain lot in the city of Ashland, and damages for withholding possession thereof from plaintiff.

■ APPEAL from tbe Circuit Court for Ashland County. Replevin. Tbe following statement of tbe case was prepared by Mr. Justice Taylor as a part of tbe opinion: Tbis case was commenced in a justice’s court. Tbe plaintiff attempted to bring an action of replevin in that court to recover from tbe defendant tbe possession of a safe. Tbe case was tried in tbe justice’s court, and tbe plaintiff recovered a judgment in its favor.

Action to recover damages for tbe wrongful cutting and conversion of timber. Tbe facts will sufficiently appear from tbe opinion. There was a verdict for tbe plaintiffs, assessing tbeir damages at §209, and from tbe judgment tbereon tbe defendant appealed.

Action to remove the defendant as a tenant holding over after his term. The facts will sufficiently appear from the opinion. The defendant appeals from a judgment in favor of the plaintiff. They argued, among other things, that the judgment cannot stand on the original pleadings. The answer alleges that defendant was in possession.under an existing paid up land contract. This was a perfect defense.

Action to enforce a mechanic’s lien upon the interest of the defendant Cooper in certain premises, and to have the defendants Bundle, Spmce & Go. adjudged to return to such premises certain fixtures removed by them, or pay the value thereof into court subject to any judgment that might be rendered.

The following statement of the case was prepared by Mr. Justice Cassoday: This is an action to recover the value of 270 sets of hemlock mining timber of which the plaintiffs claim to have been the owners under and by virtue of four several lien judgments in justice’s court, taken and entered April 2Y, 1889, against one Samuel Garrett, and each anql all commenced by attachments and seizure thereon, April 11,1889; one in favor of the plaintiff louis Johnson for $183.45 damages…

Action to recover the purchase price of goods sold and delivered. A judgment against the defendant by default was vacated by a court commissioner. This appeal is from an order of the court setting aside the order of the court commissioner.

<p>APPEAL from tbe Circuit Court for Ashland County.</p> <p>This action was brought to recover the board bills of certain laborers, for which bills plaintiff claims the defendants are hable.</p> <p>In 1887 the defendants were engaged in constructing a spur track for the Lake Shore Railroad Company, at Caledonia, and bad let tbe contract to do the work to other parties. One McQuade was employed by defendants to superintend the work on the track. He was called their walking boss. It was his dut_y to see that the subcontractors did their work according to their contract with defendants, and that they had a sufficient number of men on the work to fulfil the contract and carry out the instructions of the engineer. The testimony tends to prove that McQuade brought a number of laborers to ¡fiaintiff (who kept a boarding-house at Caledonia), requested him to furnish them board, and promised to see that he was paid therefor; that McQuade afterwards repeated such promise as to the board of several of the men who were not then at work, and requested plaintiff to keep them until their camps were built, saying they were going up the fine of the railroad; also that he promised plaintiff such board bills should be deducted from the pay of the men and paid to plaintiff. No special authority to McQuade to bind defendants to pay such board bills was proved. One of the defendants testified he had no such authority. The testimony further tends to show that the board bills of some of the men employed by the subcontractors on the track were kept out of their wages, and paid by defendants to plaintiff. Defendants refused to pay plaintiff for the board of the men (or at least some of them) whom it is alleged McQuade thus engaged plaintiff to board, and for which board he agreed to see plaintiff paid. Plaintiff testified that he gave credit for such board solely to the defendants, for whom McQuade was acting in the matter. The court submitted to the jury the questions: (1) Did McQuade promise on behalf of defendants to pay such board bills, and (2) Had he apparent authority to bind defendants by such promise?</p> <p>Verdict and judgment for plaintiff. There is no question as to the amount of recovery, if defendants are liable. The defendants appeal from the judgment.</p>

The following statement of tbe case was prepared by Mr. Justice Taylob as a part of tbe opinion: Tbe facts in this case are substantially as follows: On tbe 14th of May, 1887, tbe plaintiff agreed to convey to tbe said defendant a certain lot of land situate in Ashland-county, described as follows: “ Commencing at tbe northwest corner of lot No. one (1), in block No. six (6), of tbe village of Hurley, according to the recorded plat thereof; thence east twenty-five (25) feet;…

Action to recover the sum of $68 alleged to be due to the plaintiff for publication of an advertisement in his newspaper and for one year’s subscription to the paper. The facts will sufficiently appear from the opinion. There was a special verdict finding the facts in favor of the plaintiff, and from the judgment entered thereon accordingly the defendant appealed.

The following statement of the case was prepared by Mr. Justice Cassoday : Both parties are dentists.

Eeplevin for a quantity of tamarack and cedar railroad ties which the plaintiff had mortgaged to one Whitson, and which the latter had sold to the defendant. The facts will sufficiently appear from the opinion. The action was commenced in the municipal court for Ashland county, and from a judgment in that court in favor of the plaintiff the defendant appealed to the circuit court. In the latter court at the close of the testimony a verdict was directed for the defendant.

<p> Sale of chattels: Evidence. </p> <p>In an action for the purchase price of a pump, where the defendants denied the sale and alleged that the pump had been placed on their premises by the plaintiff as an advertisement, it was error to exclude the testimony of a disinterested witness, who was present at the time of the alleged sale, that the plaintiff then said he would put the pump in as an. advertisement, and to refuse to permit the plaintiff to be cross-examined with respect to such statement. And such error is not cured by the fact that the defendants testified that the plaintiff made such statement.</p>

<p> Common earners: Liability for injury to freight on connecting line: Evidence. </p> <p>1. Trustees operating a railroad occupied, at the terminus of the road on Lake Superior, a dock with a warehouse thereon at which they received and delivered freight which had been or was to be carried by vessels on the lake. They had no control over the lake transportation lines, and no interest in their earnings. On receiving at such dock goods which were to be transported on one of such lake lines, the said trustees gave a shipping receipt which provided that, when freight was received by the trustees to be forwarded by their line, their liability should cease at their depot a.t which the freight was to be delivered to another carrier to be transported to its destination ; that the trustees should not be liable for loss and damage on the lakes and rivers, unless caused by their negligence; and that “ for all loss and damage occurring in the transit of said packages the legal remedy shall be against the particular carrier or forwarder only in whose custody the said packages may actually be at the time of the happening thereof, it being understood that the trustees . . . assume no other responsibility for their safe carriage or safety than may be incurred on their own road.” Held, that the trustees were not liable for loss or damage happening while the goods were in transit on the lake.</p> <p>2. Testimony as to the methods of the trustees in transacting shipping business on their dock with other parties, was immaterial.</p> <p>3. The fact that a week after the goods were delivered at the dock the shipper voluntarily paid freight charges to the dock agent of the trustees, and such agent gave a receipt therefor and paid the money , over to the lake line on account of which he received it, is of no significance.</p>

<p> Corporations: Liability of stockholders for wages of employees: Survival: Assignment. </p> <p>The right of an employee of a corporation to enforce his claim for services against the stockholders personally, under sec. 1769, B. S., survives to his personal representatives, and is therefore assignable.</p>

<p>Insurance against Fire : Pleading. (1) Mistake in setting out policy. (2) Forfeiture. (8) Matters within knowledge of defendant. (4) Conditions precedent: Performance.</p> <p>1. A complaint alleged that the defendant made and executed its policy of insurance and “ did thereby insure the plaintiff against loss or damage by fire to the amount of $2,000,” etc. In attempting to set forth the policy at length the name of the defendant was omitted therefrom, so that it appeared to state that the plaintiff insured itself; but, as so set forth, the policy appeared to have been duly executed by the defendant. Held, on demurrer, that the complaint was sufficient.</p> <p>2. A forfeiture before a loss, by non-occupancy of the premises, is a matter of defense and need not be negatived in the complaint.</p> <p>3. By the terms of the policy the amount of the loss was not payable until sixty days after the first meeting of the defendant’s board of directors subsequent to the full completion of all the requirements of the policy. The complaint alleged that the plaintiff was unable to ascertain the date of such meeting, and that the defendant had absolutely refused to disclose the sama Held, sufficient to put the defendant to its defensa</p> <p>4 The amount of the loss, by the terms of the policy, did not become due and payable until sixty days after proofs of loss had been furnished. The complaint alleged that proofs of loss had been furnished July 17, 1889, and that the amount of the loss was adjusted on that day at a certain sum; that said sum became due and payable September 17, 1889; that payment thereof had been demanded and refused; and that said sum was due and owing to the plaintiff. Held, that such allegations, together with a general averment of the performance of all of the conditions of the policy by the plaintiff, sufficiently showed that said sixty days had elapsed before the commencement of the action.</p>

<p> Constitutional law: Effect to be given to judgment of another state: Conflict of laws: Judicial notice. </p> <p>In an action in this state upon a replevin bond given in an action in Minnesota, the courts of this state are not bound, in determining the effect to be given to the Minnesota judgment, to take judicial notice of the law of that state regulating the action of replevin. In the absence of proof the presumption is that such law is the same as the law- of this state.</p>

<p> Chattel mortgages: Effect of failure to renew: Estates of decedents: Lien of creditors. t </p> <p>1. The only effect of a failure to file the affidavit of renewal required by sec. 2815, R. S., is to render a chattel mortgage invalid as against subsequent purchasers or mortgagees in good faith, or creditors who thereafter acquire liens upon the property.</p> <p>2. Partners gave a chattel mortgage, which was duly filed. Afterwards one of them sold his interest in the property to the other, tailing a second mortgage to secure the purchase money. The second mortgagee died within two years after the filing of the first mortgage. After the expiration of such two years, the first mortgagee having failed to file an affidavit of renewal, the administrator of the second mortgagee took possession of the property. Creditors of the second mortgagee had filed their claims against his estate, some before the expiration of the said two years, and others thereafter. Held, that the first mortgagee was entitled to recover the property, subject only to the right of the administrator or of the surviving partner to redeem. The creditors of the second mortgagee acquired no lien on the property.</p>

<p> Fees of sheriff: Attachment: Allowance for talcing and caring for property: Demand. </p> <p>1. Until the court from which an attachment issued has made an allowance for the expenses incurred in taking possession of property and preserving it, under subd. 25, sec. 731, R. S., the sheriff has no right to retain, on account of such expenses, any portion of the moneys collected.</p> <p>2. The plaintiff claimed certain moneys collected by the defendant as sheriff, and alleged that the defendant refused to pay the sama The defendant claimed the money as his own by a superior right, denied the plaintiff’s claim, and had converted the money to his own use. Held, that no demand was necessary.</p>

<p> Promissory notes: Notice of protest: Contents: Address: Service. </p> <p>1. A notice of the protest of a note is sufficient if it contains a true description of the note and states that it has been presented at maturity and dishonored, and that the holder looks to the indorser for payment.</p> <p>2. It is not necessary that the notice itself should be addressed, if the envelope containing it is properly addressed to the indorser and he receives it through the mail.</p> <p>3. Under sec. 176, E. S., depositing in the postoffice a copy of the notice, properly directed and with the postage paid, is a sufficient service on either a resident or a nonresident indorser.</p>

<p> Recovery of share of logs by tenant in common: Mortgagee holding legal title: Pleading: Parties. </p> <p>1. In an action under sec. 4257, R. S., to recover one half of a certain lot of logs, the answer stated facts showing that though the plaintiff had the legal title to an undivided half of the land from which the logs were cut, yet his interest therein was merely a mortgage interest; that the defendant claims the logs under a sale thereof by the equitable mortgagors of the land, who had cut said logs therefrom under an agreement with the plaintiff that they might do so and apply the proceeds thereof on the mortgage debt; that said debt had in that way been fully paid; and that the timber still standing on the land was ample security for the mortgage debt.</p> <p>Held, on demurrer:</p> <p>(1) The alleged equitable mortgagors were not necessary parties.</p> <p>(2) The facts stated constituted a good equitable defense.</p> <p>2. The fact that an answer alleges facts “ as an equitable defense and counterclaim,” does not render- it demurrable where such facts are a good defense, though they may not constitute a counterclaim.</p>

<p>Appeal. (1) Receivers. (3) Parties who have obtained benefit of order. (3) Parties becoming such after order is made.</p> <p>1. A receiver, being the mere servant or agent of the court, cannot appeal from an order in the action unless authorized so to do by the court.</p> <p>2. A party cannot appeal from an order after he has obtained the benefit of a subsequent order made at his request and based upon the order from which he attempts to appeal</p> <p>3. Whether, when the delay of a person to become a party to an action is his own fault, he can appeal from an order made before he became a party, is not determined. But his rights in that respect are, at best, no greater than those of one who was a party when the order was made and who had due notice thereof. Under sec. 3042, B. S., the right of such a party to appeal terminated thirty days after such notice.</p>

<p>APPEAL from tbe Circuit Court for Ma/rmette County.</p> <p>Tbe facts are thus stated by Mr. Justice Oassoday:</p> <p>This action is to recover the value of 322,000 feet of white pine saw-logs, which had been cut from section 9 in township 39 N. of range 15 E., in Wisconsin, described and alleged to be worth $3,220, which it is alleged the defendant wrongfully took, May, 25,1888, from the possession of the plaintiffs, and brought into Marinette county, and there unjustly detained, to the plaintiffs’ damage in the sum stated, and for which value and damages judgment is demanded. The answer is a general denial. The action was tried by the court without a jury, and the court made and filed findings of fact and conclusions of law to the following effect:</p> <p>■ The shores of the lake within the boundaries of said section were the same in November, 1864, as at the time of the trial. In November, 1864, all the lands in said township were surveyed and subdivided by surveyors employed by the United States, and a plat thereof made and certified to the general land office by the surveyor general of the United States. Said survey and plat showed said lake as extending much further north and east in said section than the fact was or is, and the north shore thereof as extending entirely across the E. 4 of the N. W. 4 of said section, and north of the north eighth line of said section, so as to leave but about twenty-six acres in said E. 4 of said N. W. 4; and said lake extending so far into said section as to make all of the quarters of said section fractional. The lands in the W. 4 of the N. W. 4 of said section were designated by said survey and plat as Lot 2; those in the E. of the N. W. 4 of said section as Lot 3; all the lands in the S. W. 4 of said section as Lot 8; all the lands in the W. 4 of the N. E. 4 of said section as Lot 4; all the lands in the W. 4 of the S. E. 4 of said section as Lot I; the lands in the S. E. *4 of the N. E. 4 of said section as Lot 5; the lands in the N. E. 4 of the S. E. 4 of said section as Lot 6 (as is more exactly shown by a certified copy of said plat in the record, and made a part of the findings). Said survey and plat so made by the government were erroneous and did not correctly show the location of said lake within said section. While the end of the lake extends into the section from the west, no part of it extends to the E. of the 1ST. W. J of said section, but the shore of said lake extends into, and about half way across, the E. £ of the S. W. \ of said section. The north shore of said lake intersects the west eighth line of said section about fifty rods south of the east and'west quarter line. The correct location of said lake is as shown by the diagram made a part of the findings.1</p> <p> </p> <p>Prior to July 1, 1867, the plaintiffs’ grantors entered and paid for and selected certificates of purchase for said lots 3, 4, 5, and 8 of said section, according to said government survey and plat. Prior to 1885 the plaintiffs became the owners in fee simple of said lots 3, 4, 5, and 8, and have ever since continued to own the same. During 1886 one James Long, claiming that the land in the said section between the shore of said lake and the meandered fine of said shore, as shown by said government plat and survey, was unsurveyed land belonging to the United States, entered upon the same, cut a little timber on the S. E. ¿ of said hT. W. ¿, built a small shanty thereon, and raised a few bushels of potatoes, planted among the fallen trees. During each of the years 1887 and 1888 said Long raised a few potatoes in the same place and manner. In the spring of 1888 he contracted with the defendant to sell it such timber as he had and should cut from the lands upon which he had so entered, and the same, when cut into saw-logs, amounted to 322,000 feet, board measure, and the same were sold and delivered by said Long to the defendant. Said Long has since retained the possession of said lands from which the timber in question was cut. The value of said logs in the boom at Marinette at the time of the commencement of this action was $9.50 per 1,000 feet, board measure, or $3,059 in the whole. There was no evidence of the value at any other time or place. Prior to the defendant’s purchase of the same it was informed of the facts relating to Long’s claim of title as stated. All the logs in question were so cut from the said S. E. of the 1ST. W. ¿ of said section, which, according to such government survey, was wholly in the lake. According to the true plat and survey thereof, the lands from which such logs were so cut were wholly south of the river delineated on said map. Said river does not flow into said lake at all, but enters the N. "W. ¿ of said section from the east, some distance south of the south line of the N. E. \ of that quarter section, and runs westerly to • the eighth line of said section, or thereabouts, and then substantially follows the north and south eighth line to the north line of the section. Said Long entered upon the said lands in 1886, and continued in such possession for the purpose of locating the same and other adjacent lands as a homestead under the laws of the United States. The defendant purchased said logs of Long in good faith without any notice or knowledge that the plaintiffs claimed title to said premises or the logs cut therefrom, except such as might be imputed in law.</p> <p>As conclusions of law the court found that “ the plaintiffs were, at' the time said timber was cut, the owners in fee simple of the premises from which it was cut, and entitled to the possession of the same; that the timber as fast as severed from the premises became the personal property of the plaintiffs, and that they were entitled to the immediate possession of the same; that the defendant wrongfully took and now holds said logs; that the plaintiffs are entitled to judgment against the defendant for the value of said logs, to wit, $3,059, with interest thereon at seven per cent, from the commencement of this action, and for costs; and it is ordered that judgment be entered accordingly.” From the judgment entered thereon accordingly the defendant appeals.</p>

<p> (1, 2) Notice of injury from defect in highway. (8) Foot-bridge, ivhen part of public way. (£) Constructive notice of dangerous condition of bridge. (5) Physicians and surgeons: Qualifications as witnesses, how proved. (6) Damages. </p> <p>1. The notice of injury given pursuant to sec. 1339, B. S., is not a proceeding in an action, but is competent evidence in any action in which it is necessary to prove the service thereof.</p> <p>2. In an action by a married woman for an injury caused by a defect in a highway, it is immaterial that the notice of such injury was signed by her husband as well as by herself.</p> <p>3. A bridge built by a private citizen with lumber furnished by the town, and forming a part of the sidewalk in a platted street, and used daily by pedestrians, is held to be a public way both by user and by acceptance by the town of the platted street in which it was erected.</p> <p>4. Where the dangerous condition of a foot-bridge, caused by the accumulation of ice and snow thereon, had existed several weeks before the plaintiff was injured by falling thereon, and the jury found for the plaintiff under instructions submitting to them the question whether such condition had continued a sufficient length of time to charge the city with constructive notice thereof, it is a verity that the city had such notice.</p> <p>5. The qualifications of a physician to testify in a professional capacity (under sec. 1436, S. & B. Ann. Stats.) may be proved by his own oral testimony, without producing his diploma or proving by record evidence the incorporation of the institution or society which granted it or that he is a member of one of the medical societies designated.</p> <p>6. A verdict for $3,500 in favor of a woman whose hip was permanently injured, the leg being shortened one inch, and who suffered much pain and other inconveniences likely to be permanent, is held not so excessive as to warrant the interference of the court.</p>

<p> Logs and Umber: Sale: Title retained by vendor until payment: Filing of contract: Notice to subsequent purchaser: Instructions to fury: Waiver of claim of title: Estoppel: Court an\ jury. </p> <p>1. By the tei;ms of a contract of- sale of standing vimbcr it wao to be cut and removed by the vendees and kept in th'.ir possession, but; the title was to remain in the vendor until full payment was made, Held, that the filing of the contract in the office oi the clerk of the town where the trees were growing was not consta \ctive nctice of the vendor’s rights to one subsequently purchasing from the vendee the lumber manufactured from such timber.</p> <p>S. Nor was the filing of such contract in the office of the lumber inspector of the district notice to such purchaser.</p> <p>3. There being no evidence that such purchaser knew that the contract was filed in the inspector’s office, it was error to charge the jury that such filing might be considered as a fact tending to show that he had notice of the contract.</p> <p>4. After stating that the contract had been filed in the town clerk’s office for the purpose of giving notice thas i he vendor retained the title; that it had also been filed in the inspector’s office; and that such filing in the inspector’s office was not notice, but might be considered as a fact tending to show notice, — the court charged the jury that what he had said in relation to the inspector’s office had nothing to do with what he had stated as to the filing of the contract in the town clerk’s office. Held, that this was error, as the jury might have understood therefrom that the filing in the clerk’s office was constructive notice.</p> <p>5. There being evidence tending to show that the original vendor knew that his vendees had cut and removed the timber, sawed it into lumber, piled it up for sale, and sold or intended to sell part of it, and that he made no objection, the question whether he had waived his claim of title was one for the jury.</p>

<p> Street railways: Change in grade of street. </p> <p>A municipal ordinance granting a franchise for the construction of a street railway provided that “ the road-bed shall at all times correspond with the actual grade of the streets; ” that the railway shall he operated “ on such grades as have heretofore been or hereafter may be established by the city; ” and that in case of change by the common council in the actual grade of any of the streets, the railway company “shall relay the track of said railway to correspond to such grade, at its own expense.” Held, that the company must bear all the expense of raising the grade of its road-bed and track to correspond with a change made in the grade of a street.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: It appears from the record that October 11,1886, the defendant Buggies, by an agreement in writing, purchased from the defendant Neil-Pratt Lumber Oompanvy a certain saw-mill and planing-mill, with the store building, sheds, and houses used in operating the same, and eighty acres of land therein described, for the sum therein designated; that thereupon the said Buggies went into the…

<p>APPEAL from the Circuit Court for Taylor County.</p> <p>The case is sufficiently stated in the opinion. The intervening defendant appeals from a judgment in favor of the plaintiff.</p>

<p>APPEAL from tbe Circuit Court for Oneida County.</p> <p>Upon tbe petition of more than six resident freeholders of tbe town and village of Eagle Eiver in Oneida county, and certain proceedings subsequent thereto, tbe supervisors of that town made an order, which was duly recorded, attempting to lay out and establish a public highway across the right of way of the Milwaukee, Lake Shore de Western Railviay Company, in said village, which is a part of said town and subject to the jurisdiction of such supervisors. The Milwaukee, Lake Shore do Western Lailway Company sued out a writ of certiorari to remove such proceedings and order into the circuit court for review. That court gave judgment affirming the order of the supervisors, and the railway company appeals from such judgment.</p> <p>The description of the proposed highway in the petition is as follows: “ Through, over, and across the piece or strip of land lying partly on the northeast quarter of the northwest quarter of section number thirty-three (33), and partly on lot number six (6), in section number twenty-eight (28), all in township forty (40), range ten (10) east, and being that part of the right of way of the Milwaukee, Lake Shore & Western Eailroad, and at the point where the said right of way intersects a continuous line of Division street in said village, as said street is laid down in the recorded plats of Ann O’Connor’s and Cook and Tambling’s additions to the village of Eagle Eiver, and to declare the same and said Division street to be a public highway.” On presentation of the petition, the supervisors issued a notice appointing a time and place when and where they would meet and decide upon the application of the petitioners. The notice described the proposed highway substantially as the same is described in the petition: This notice Avas duly posted as required by statute, and was served on the station agent of the railway company in such village. None of the general officers of the company resided in Oneida county.</p> <p>The highway was laid to a point about twenty rods west of the point designated in the petition as its terminus, but that was done at the request of the owner of the land over which the highway was thus extended, who released all claim for damages by reason of the extension and laying thereof. The supervisors assessed damages to the railway company for its land taken for the highway.</p> <p>The description of the highway in the order laying out the same is as folloAvs: “ Commencing at an iron stake on section line between sections 33 and 28, town 40, range 10 east, said stake -being in the center of Eailr.oad and Division streets, according to the recorded plat of the northeast quarter of the northwest quarter of section thirty-three (33), town forty (40), range ten (10) east; thence south, 86° 30' west, 33 feet to east side of right of Avay of the Milwaukee, Lake Shore & Western Eailroad set post, at 183 feet west side of railroad right of way set post, at 490 feet to the one-eighth line between northwest corner of section 33 and the north quarter post of section 33 on section line, and set post. The same being an accurate survey of said highway caused by us to be made, the line of said survey is the center of said highway, and the same is laid out to the width of sixty (60) feet, and that said Division street be and the same hereby is -declared to be a public highway.” •</p> <p>The above facts appear in the affidavit for the writ of ■certiorari, and in the return of the town clerk to the writ.</p>

<p> Life insurance -.Assessments: Request for payment after due: Forfeiture: Estoppel: Agreement to give notice. </p> <p>1. A life insurance company requested payment of an assessment, stating that it was overdue but assuring the policy-holder that if it was paid he would remain a member of the company. A few days later the assessment was paid. Held, that the company could not thereafter insist that the policy was forfeited because the assessment had not been paid prior to said request, nor require a certificate of health as a condition of reinstating the policy-holder.</p> <p>2. The secretary of a life insurance company assured the plaintiff in writing that certain notices of assessments would be given before there would be any forfeiture of a policy. Belying upon such assurance the plaintiff took policies." According to the company’s, articles of incorporation, certain assessments became payable without any notice being given as the secretary had promised. These articles were referred to in the policies, but were not attached thereto, and the plaintiff had no knowledge of their provisions. Held, that the plaintiff was entitled to rely upon the secretary’s promise until expressly notified to the contrary.</p>

<p> (1) Wills: Devise of life estate with power to sell. (3) Evidence: Transactions with person since deceased. (8, Jj) Contracts: Consideration of marriage: Statute of frauds: Executed contract. </p> <p>1. Land was devised to the testator’s wife “ for her sole use and benefit so long as she shall live, with power to dispose of the same if it shall be necessary for her support and comfort; ” and the will further provided that “ whatever remains after her death shall go to the heirs,” etc. Held, that the wife took a life estate, with power to dispose of the fee whenever the necessity mentioned should arise; and that her grantee, upon showing that such necessity existed, took the absolute fee.</p> <p>2. In ejectment brought by the heirs of the testator against the grantee of the wife after her death, the defendant was competent to testify as to the contract between himself and the deceased wife, since the plaintiffs did not derive their title from her. Sec. 4069, R. S.</p> <p>5. An oral contract between the wife and said defendant by which the latter was to provide for her support and comfort during life, pay her debts, take care of, manage, and improve the land, and to that end the parties were to marry and live together upon the land, which should be conveyed to the defendant in fee simple, is not void under subd. 3, sec. 2307, R. S. The consideration for the conveyance was not the marriage of the parties, but the support of the wife.</p> <p>4. Such contract, having been fully executed by the defendant providing for the comfort and support of the wife during her life, and by her conveyance of the land to him, is not within the statute of frauds (sec. 2302, R. S.).</p>

The following statement of the case was prepared by Mr. Justice Cassoday : This action was commenced April 23,1888, for the purpose of having a deed from H. H. Mead and wife to L. G. Matthews adjudged to be fraudulent as against the plaintiff, and the title secured thereby to be held in trust for the defendant H. G. Matthews, and subject to the payment of the plaintiff’s claims, and for an accounting to ascertain the amount of the purchase money paid therefor chargeable…

<p> Corporations: Fraudulent acts of directors: Suit by stockholder: Pleading: Demand. </p> <p>In an action by a stockholder against a corporation and the officers and directors thereof for an accounting and the appointment of a receiver, etc., a complaint alleging that such officers and directors, being the owners of a majority of the stock, have fraudulently diverted the property a>,d profits of the corporation to their own personal use and benefit by voting themselves salaries and by other fraudulent acts, is sufficient without alleging a demand upon such officers and directors for the correction of the abuse, since it is apparent that such a demand would be nugatory.</p>

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

<p>APPEAL from tbe Circuit Court for Milmcmlcee County.</p> <p>The following statement of the case was prepared by Mr. Justice Oassoday :</p> <p>It appears from the record that October 10, 1883, the plaintiff’s intestate, H. C. Atkins, was indebted to the defendant in the sum of $2,138.15, evidenced by two promissory notes,— one for $1,000, due in thirty days, and the other for $1,138.15, due in ninety days; that to secure the payment of said notes the said Atkins delivered to the defendant fifty shares of the capital stock of the Wisconsin, Pittsville & Superior Railway Company, then the property of said Atkins. Atkins died April 12,1884. The complaint in this action alleges, in effect, the death of said Atkins, the appointment of the plaintiff as administrator of his estate, that the value of said stock was $5,000, and that February 23, 1886, at Milwaukee, the defendant, being in the possession of the same and the certificate thereof, unlawfully and wrongfully converted and disposed of the same to his own use, and to the plaintiff’s damage in the sum of $6,000, for which judgment was demanded. The defendant answered to the effect that he held said stock as collateral security for said indebtedness to him.</p> <p>The cause was tried in January, 1889, and during the trial the defendant offered to return the stock certificate in question in mitigation of the damages, but which offer and tender was not accepted by the plaintiff, and no ruling of the court was made thereon. The jury on that trial disagreed on the question of damages, and were discharged.</p> <p>February 2, 1889, the defendant, with leave of the court, amended his answer, and alleged, in effect, that said stock had been issued by said corporation without authority and in violation of law, and that the same and said certificate were absolutely void. February 12, 1889, the defendant served written notice upon the plaintiff to the effect that the defendant brought into court said stock certificate, and filed the same therein for the use and benefit of the plaintiff, and thereby tendered the same to the plaintiff and offered to surrender said certificate and all the right, title, and interest of the defendant therein and in and to said' stock, to the plaintiff, and thereby offered and tendered, to the plaintiff judgment therein against the defendant for nominal damages and for the costs and disbursements of the action. The plaintiff thereupon, by written notice served on the defendant and filed in the action, declined to accept said offer and tender, for reasons therein stated.</p> <p>The cause again came on for trial September IT, 1889, and thereupon the plaintiff, with leave of the court, amended his complaint by alleging, in effect, that in consequence of the conversion of the stock certificate the plaintiff had been subjected, to great trouble, loss, and expense in order to regain possession of the same, to wit, upwards of $1,000, all of which he claimed and insisted as chargeable to the wrongful act of the defendant alleged. Thereupon the plaintiff announced in open court his readiness to receive and accept the stock certificate mentioned, then on file with the clerk of the court, and thereupon introduced said stock certificate in evidence. At the close of the plaintiff’s testimony the defendant moved for a nonsuit, which was denied. Thereupon the plaintiff requested the court to give to the jury two several written instructions, which request was refused. The court thereupon directed the jury to return a verdict in favor of the plaintiff, and assess his damages at six cents, and such verdict was thereupon returned accordingly.</p> <p>The respective parties thereupon served upon each other a bill of costs and disbursements in the action, with notice of the taxation of the same before the clerk, each objecting to the allowance of the costs asked by the opposite side. Upon the hearing of such applications the clerk wholly disallowed all the plaintiff’s costs and disbursements, and taxed the defendant’s costs and disbursements at the sum of $60.97, and on appeal therefrom the same was affirmed by the circuit court. Thereupon judgment was entered in favor of the defendant and against the plaintiff for the amount of costs and disbursements so taxed, less the damages so assessed, to wit, the sum of $60.91. Erom that judgment the plaintiff appeals.</p> <p>To the point that the plaintiff was entitled to recover damages for the expenses incurred in obtaining the return of the stock, and also for his time and trouble, they cited Johanneson v. Borschenius, 35 Wis. 131; Anderson v. Sloane, 72 id. 566; Braunsdorf v. Fellner, 76 id. 1, 17; Western L. c& O. Go. v. Hall, 33 Fed. Rep. 236, and cases cited; Ford v. Williams, 24 FT. Y. 359, 366.</p>

<p> Maintenance. </p> <p>Where the defendants, in pursuance of a conspiracy and by fraudulent representations, induced several persons to buy from them worthless shares of corporate stock, it is not maintenance for such persons to contribute to a fund for the prosecution of an action by one of them as a test case to determine the liability of the defendants.</p> <p>See note to this case in 10 L. B. A. 190.— Eep.</p>

The action is for personal injuries to the plaintiff, charged to have been caused by the negligence of the defendants.

<p>APPEAL- from tbe Circuit Court for Milwaukee County.</p> <p>Action to recover rent. Tbe facts are stated in tbe opinion. Tbe plaintiff appeals from a judgment in favor of tbe defendant.</p> <p>contended, inter alia, that tbe only issue was whether there was a surrender by mutual agreement, and it was error to admit evidence in relation to tbe filling of tbe premises, or permitting others to occupy tbe same, or as to a sale of a portion of tbe same. 1 Greenl. Evi. sec. 51; Johnson v. Filkington, 39 Wis. 66.. If tbe surrender was as alleged in tbe answer, by mutual agreement, parol testimony of tbe surrender was incompetent. Tbe lease could not at that time be surrendered by any parol agreement. Bailey v. Wells, 8 Wis. 141. In order to constitute a surrender by operation of law tbe acts of tbe parties must be concurrent. Tbe mere abandonment by tbe tenant, and tbe taking possession by tbe landlord for tbe purpose of caring for and protecting tbe premises, does not absolve tbe tenant from bis obligation to pay rent. Imermore v. Fdd/y, 33 Mo. 541; In re Orne, 15 Phila. 489; Brenehmann v. Twibill, 89 Pa. St. 58. Tbe mere removal of a tenant with an unaccepted offer of surrender does not terminate the lease. It is not even evidence of a surrender. ■ Millvag v. Becker, 96 Pa.' St. 182.</p>

<p>APPEAL from tbe Circuit Court for MUwcmkee County.</p> <p>Action to recover one balf of the proceeds of the sale of certain property under an execution. The facts are sufficiently stated in the opinion. The plaintiff appeals from a judgment of nonsuit.</p>

<p>APPEAL from the Circuit Court for Milwcmltee County-.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday : .</p> <p>The original complaint alleged, in effect, that at the times mentioned the defendants were copartners under the firm name and style of McGeoch, Everingham & Co.; that prior to July 21, 1883, an account existed between the plaintiff and said firm; that on or about that day said account was stated between the plaintiff and said firm, and upon such statement a balance of $48,780 was found to be due from said firm to the plaintiff; that the defendants then and there promised to pay the same, but that no part thereof had been paid except the sum of $24,390. Judgment was demanded for such balance, with interest from the date mentioned. To that complaint the defendant McG-eooh made a lengthy answer, consisting of denials, allegations of payment, accord and satisfaction, and that the alleged indebtedness arose out of a gambling transaction in Chicago, void under the laws of Illinois, and other defenses, and a counterclaim. The plaintiff replied to the counterclaim.</p> <p>On January 15, 1890, the plaintiff, upon a proposed amended complaint, an affidavit, and testimony taken, obtained an order to show cause why his said complaint should not be amended so as to allege, in effect, that at the times named said firm was doing business in Chicago, and the plaintiff engaged in business as a factor and commission merchant at the same place; that between June 9 and 15, 1883, at the special instance and request of said firm, the plaintiff purchased in his own name, but in fact for said firm and at their order and as such broker and commission man, 8,000 tierces of lard at the then market price, at an aggregate cost of $296,620; that in such purchase the plaintiff dealt with tlie seller thereof as principal, and did not disclose his agency for the defendants, and by such purchase the plaintiff incurred a liability to said seller of said lard to the amount of $296,620; that between June 9 and 16, 1883, said firm paid to the plaintiff the sum of $10,000 on such purchase so made for them; that by the terms of such purchase said lard was to be delivered at any time in July, 1883; that June 16, 1883, 'said firm informed the plaintiff that they were unable to receive and pay for said lard, and ordered the plaintiff to resell the same at the then market price, and thereby save the plaintiff as much as possible, and thereupon the plaintiff did resell all of said lard at the then market price, as ordered by said firm, and realized upon such resale the sum of $238,240, leaving the plaintiff still liable on such purchase for said defendants to the amount of $48,380, over and above the $10,000 paid by the defendants as aforesaid; that afterwards, and in July, 1883, the plaintiff was compelled to pay and did pay to the use of said defendants, upon such liability so incurred, the sum of $46,^02, no part of which has ever been repaid to him, except as hereinafter set forth; that the commission <?f the plaintiff, at the usual and ordinary rates at the time, on said purchase was $400, no part of which was ever paid by said firm, but is still due and payable; that, June 20, 1883, the plaintiff caused to be transmitted to said firm a statement in writing of said amount, specifying the several purchases of lard which made up the whole amount stated, and said item of $400, and that the defendants received and retained the same; that, July 21, 1883, the defendants caused to be paid thereon the sum of $24,390, and that except as specified no payment has ever been made thereon, but the full sum of $24,390, with interest at six per cent, from said last-named date, is now due from said defendants as such firm to the plaintiff; that all the foregoing contracts and agreements were by their terms to be performed in Chicago; and that at all the times mentioned there was, and yet is, in force in Illinois a law, known as section 3 of chapter 76 of the Revised Statutes of that state, which, provides that “ all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants.” Judgment is prayed for the amount last named and interest and costs.</p> <p>On February 27, 1890; the trial court ordered that the plaintiff have leave to amend his complaint as proposed, upon the usual terms, etc. From that order the defendant McGeoch appeals.</p> <p>They contended that there was no merit in the plaintiff’s application. Since the action had been commenced the statute of limitations would have barred the plaintiff’s claims, but notwithstanding this he seeks to change his cause of action from an account stated to one for damages growing out of the failure of the defendants to fulfil a contract. A change so radical and complete should not be allowed except upon a showing that the plaintiff has a good and meritorious cause of action. Burnham v. Roberts, 70 Ill. 19; Seckel v. Scott, 66 id. 106; 1 Chitty PI. 347; Throop v. Sherwood, 9 Ill. 92. One of the requirements which the courts have uniformly held to be necessary before allowing a change in the cause of action, is the serving of an affidavit of merits with the motion papers. Mowry v. Hill, 11 "Wis. 146; Bwrnham v. Smith, id. 258; Ringer v. YancUch, 36 id. 141-144; Butler v. Mitchell, 15 id. 355; Levy v. Goldberg, 40 id. 308, 315; Sweet v. Mitchell, 19 id. 524, 529.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The appeal is by the defendant McGeoeh from an order refusing to require the plaintiff to produce certain books of account upon his examination before commissioners pursuant to sec. 4096, R. S. The facts will sufficiently appear from the opinion.</p>

Action in equity for the abatement of an alleged nuisance. The complaint charges that the defendant owns and maintains a brewery on lands contiguous to the lands and residence of plaintiff, and so operates such brewery as to foul the water in certain streams running along and through plaintiff’s premises, and cause the entire neighborhood, and a certain highway therein, and the atmosphere over and around the same, to be tainted and polluted with noxious gases and smells…

The action was brought by Dorothea Liginger, widow of John B. Liginger, deceased, to restrain the defendants from selling, under an execution, land of which the said John B. Liginger died seised, and to establish the title of the plaintiff as against the claims of the defendants. The facts will sufficiently appear from the opinion. The defendants appeal from a judgment in favor of the plaintiff.

<p> Insolvency: Discharge: Debt fraudulently contracted: Demurrer: Constitutional law. </p> <p>1. The fact that an applicant for a discharge from his debts under ch. 385, Laws of 1889, had obtained money by means of false and fraudulent representations, will not prevent his obtaining such discharge. [Whether the discharge in such a case would defeat an action by the creditor from whom the money was so obtained, not determined. Such creditor might, perhaps, upon a proper showing, prevent the 'discharge from including that particular debt.]</p> <p>2. Upon a demurrer to the objections of a creditor to the discharge of an insolvent debtor under ch. 385, Laws of 1889, the creditor may attack tlie petition of the insolvent on the ground that said statute is unconstitutional.</p> <p>3. Ch. 385, Laws of 1889, so far as it applies to resident creditors and to their debts contracted prior to its enactment, is constitutional</p>

<p>APPEAL from tbe Circuit Court for MilwamTcee County.</p> <p>Tbe following statement of tbe case was prepared by Mr. Justice Cassoday:</p> <p>Clybourn street, in Milwaukee, runs east and west, and crosses Clermont street at right angles. Tbe complaint alleges, in effect, that tbe plaintiff was a resident of Milwaukee, and three years of age; that tbe guardian was appointed October 3, 1888, as stated; that tbe defendant was a corporation created and existing under and by virtue of tbe laws of this state and tbe ordinances of said city, and engaged in operating and running street-cars, propelled by borses, for tbe purpose of carrying passengers for hire upon and over said Clybourn and other streets of said city; that, August 19, 1888, a certain car of the defendant, propelled by horses, was by its servant being driven upon said Cly-bourn street while said plaintiff was lawfully crossing on the east side of said Clermont street, and the defendant by its servant so negligently drove and conducted said streetcar that thereby the same ran and was driven against the plaintiff, and seriously and permanently injured him, to his damage in a sum named; that said Clybourn street and other streets upon which the defendant was so operating its street railway were public highways and thoroughfares, over which great numbers of citizens of said city were constantly passing and repassing; that in addition to the negligence mentioned, and for more than six months immediately prior to August 19, 1888, the defendant negligently and unlawfully suffered and permitted that portion of said Cly-bourn street, at the crossing at the intersection of the same and Clermont street, to be and remain out of order and insufficient, by suffering and permitting that portion of Cly-bourn street,, at said crossing, lying between the outside rails of said tracks, to be and remain below the grade of the surface of the balance of said street, and below the top of said rails upon said track, the distance of six to eight inches; that the defendant carelessly and negligently permitted said car to get out of repair, so that the brakes and other appliances thereon were and had become out of repair, worn, broken, and unserviceable, so that they would not stop the said car with reasonable certainty or dispatch or within a proper and reasonable- distance, yet that the defendant carelessly and negligently used and operated the same as aforesaid, and the defendant’s servants so negligently drove and conducted said unsafe, dangerous, and unserviceable car that thereby the same ran and was driven against the plaintiff and seriously injured him as aforesaid, whereby he was permanently disabled, losing his right foot entirely, and partly the use of his left foot, besides other great and serious bodily injuries, to his damage in the amount stated. The answer denied all negligence on the part of the defendant, and alleged contributory negligence.</p> <p>At the close of the trial, and under the charge of the court, the jury returned a special verdict to the effect: (1) The plaintiff’s injuries, of which he complains in this action, were the result of the negligence of the defendant’s driver, who had charge of the car by which the injuries were caused, taking into account the condition of the street, the extent to which it was used, the steepness of the grade, and all the facts and circumstances of the case bearing upon the question. (2) The parents of the plaintiff were not guilty of negligence in leaving him with their daughter Jane. (3) The said daughter Jane was not guilty of negligence in suffering the plaintiff to go abroad with her younger sister. (4) Said younger sister was not guilty of negligence in leaving the plaintiff with his cousin, as she did. (5) Should the court be of the opinion that the plaintiff is entitled to judgment, we assess his damages at $8,000. (6) The driver of the defendant’s car was not driving the horses at an ordinary, usual, and moderate rate of speed, before and at the time of the accident. (7) At the time the driver first saw the child, or could have seen him, in the exercise of proper care, the car was about ninety feet west of the plaintiff, at the east crossing. (8) The child suddenly started from the place where he was first seen by the driver, and ran towards the horses and the car. (9) The child ran between the horses and the defendant’s car before he could be prevented, and before the car could be stopped. (10) The driver of the street-car did not have any reason to expect that the child would undertake to cross the street at the time. (11) The defendant company was not guilty of any other want of ordinary care which caused the injury, except the negligence of the driver.</p> <p>Thereupon the plaintiff moved for judgment in his favor and against the defendant upon the special verdict rendered by the jury; and the defendant moved for judgment in its favor upon the record, pleadings, and the special verdict rendered by the jury. The court overruled and denied the defendant’s motion, and ordered that the plaintiff have judgment against the defendant upon said special verdict, upon condition that within five days from date thereof the plaintiff should remit, from the damages assessed and found by the jury, the sum of $3,000, and in case the plaintiff failed so to do then that said verdict be set aside and a new trial granted, but that if the plaintiff filed such remittance •then he was to have judgment against the defendant for the sum of $5,000 damages. The plaintiff’s attorneys thereupon did remit from said verdict said sum of $3,000, and consented to take judgment for the sum of $5,000, and thereupon- the court ordered judgment to be entered against the defendant and in favor of the plaintiff for that amount, with costs taxed at $246.83. From the judgment entered thereon accordingly the defendant appeals.</p> <p>1. The special findings show that the injury to the plaintiff was not the result of any negligence found by the verdict, but on the contrary was the result of a sudden and unexpected movement of the child, which could not have been prevented or avoided by the driver, and which he had no reason to expect. The plaintiff, therefore, cannot recover. Hart i>. Allen, 2 Watts, 116; Sharp v. Powell, L. E. 7 C. P. 253; Atkinson v. Goodrich Transp. Go. 60 Wis. 141, 161; Kellogg v. O. c& H. W. P. Go. 26 id. 223, 281; Stewart v. Bipon, 38 id. 584, 591; Kreuziger v. O. & H. W. Bl Go. 73 id. 158; Milwaukee dé St. P. B. Go. v. Kellogg, 94 U. S. 469, 475; Scheffer v. Bailroad Co. 105 id. 249, 252: Ha/ndel/un v. B., O. B. da FT. B. do. Y2 Iowa, Y09; McDonald v. /Snellmg, 14 Allen, 290, 296; Icme v. Atlantic Worlcs, 111 Mass. 136, 141. The general finding of negligence will be held to be a mere conclusion of law, and will not control the judgment where the special facts show that such conclusion is erroneous. lemke v. O., M. <& St. B. B. Vo. 39 Wis. 449; Haasv. V. d H. W. B. Go. 41 id. 44; Kearney v. O., M. da St. B. B. Go. 4Y id. 144; Bya/n v. Springfield F. <& M. Ins. Go. 46 id. 6Y1; Hogam, v. G., M. & St. B. B. Go. 59 id. 139; Martin v. Bishop, id. 41Y.</p> <p>2. The special verdict shows that the injury was the result of inevitable accident, and not of any negligence on the part of the driver. See Oordes v. Thwd Ave. B. Go. 4 FT. Y: Supp. 439; Henderson v. Knickerbocker Ice Co. 5 id. 909; Hestonville B. B. Go. v. Connell, 88 Pa. St. 520; Wolf v. H., W. S. & P. F. B. Co. 2 N. Y. Supp. Y8Y.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>■ This action is to recover the value of a bpx of clothing. It was proved on the trial that the plaintiffs delivered the box to the Baltimore & Ohio Express Company, at New York, consigned to themselves at Milwaukee, to be shipped by that company to Chicago, and there delivered to a connecting carrier for transportation to its destination.; and that the box was delivered by the express company, at Chicago, to the defendant, the Goodrich Transportation Company (a common carrier for hire between these points), for that purpose. The transportation company thereupon delivered to the express company this receipt:</p> <p>OWNER’S Risk.</p> <p>Chicago, Oct. 12th, 1887.</p> <p>Received from B. & O. Ex., condition and contents unknown, the following articles, to be forwarded as addressed below. At owner’s risk damage or shortage.</p> <p>Marks: \ Articles,</p> <p>Browning, King & Co. [•</p> <p>Milwaukee, Wis. ) 1 Box Dry Goods, 144 lbs.</p> <p>Chicago, Oct. 12th, 1887. Received for shipment subject to following conditions; no liability for the dangers of navigation, fire, collision, or delivery, except to land goods on dock or pier.</p> <p>Goodrich Transportation Co.</p> <p>This receipt is designated in the record as “ Exhibit A.” The value of the contents of the box was stipulated by counsel to be $231.</p> <p>The only question of fact litigated on the trial upon which there was any conflict of testimony was, Did the transportation company deliver the box, either to the plaintiffs or to one Stoltz (admitted to be their agent), or to his servants? This question was submitted specially to the jury, who answered it in the negative. There was no other verdict except a formal finding of value at the stipulated sum. Hence, to the foregoing statement of facts proved on the trial there must be added the further fact that the transportation company never delivered the box to the plaintiffs.</p> <p>The rulings of the court on objections to the admission of testimony are sufficiently stated in the opinion. A motion on behalf of defendant for a new trial was denied, and judgment entered for plaintiffs for the stipulated value of the contents of the box, together with interest and costs. • The defendant company appeals from the judgment.</p>

<p> Railroads* Collision at highway crossing: Contributory negligence: Inconsistent findings: Court and jury. </p> <p>1. In an action against a railway company for personal injuries received in a collision at a highway crossing, the jury found specially that the whistle of the defendant’s engine was sounded at the whistling-post (about half a mile from the crossing); that the bell was rung continuously from that place to the crossing; that the engine was going forty-five miles an hour; that the plaintiff was driving three and one half miles an hour; that an. engine could be seen when 2,600 feet distant from the crossing, from any point on the highway between 200 and 100 feet from the crossing; and that from a point twenty feet from the crossing an engine could be seen when 800 feet away. Held, that these findings were not inconsistent with a further finding that the plaintiff was not guilty of any contributory negligence.</p> <p>2. Upon the evidence in the case — tending to prove the facts thus specially found and, among other- things, that the plaintiff and the engine were going in nearly the same direction, the highway making an angle of 30° with the railroad at the crossing; that the accident occurred on Sunday, when no train was due; that the plaintiff and her sister, who was riding with her, looked along the track when they were 200 feet from the crossing, again when they were 100 feet away, and once afterwards, but saw nothing; that they first saw or heard the engine when it gave an alarm about 400 feet from the crossing, and when it was too late to avoid the collision; and that from a point on the highway seventy or eighty feet from the ■crossing, to a point within a few feet thereof, the view of an approaching engine would be shut out by a water tank, — it is held that the question of contributory negligence was properly left to the jury.</p>

<p>APPEALS from the Circuit Court for Milwaulcee County.</p> <p>Tbe case is sufficiently stated in tbe opinion.</p> <p>They contended, inter alia, that tbe circuit court bad no jurisdiction of this action because no execution bad been returned unsatisfied as contemplated by tbe statute. Clarke v. B. <& V. P. Co. SO Wis. 416; Clcurk v. Bergenthal, 52 id. 103. Tbe return of an execution on a judgment in a federal court will not sustain this action. Wi/nslow v. Leland, 128 Ill. 304, 338; Steere v. Hoagland, 39 id. 264; Ta/rbell v. Griggs, 3 Paige,' 207; McGcurtney v. Bostwich, 32 N. Y. 53, 62.</p> <p>Tbe court bad no jurisdiction to enjoin tbe collection of appellants’ execution, since it was beyond tbe scope of tbe action. Glorie v. B. <& V. P. Go. 50 Wis. 416. From tbe wording of sec. 3221, E. S., and from analogy, it would seem that it was intended to restrain only sucb proceedings as would interfere with tbe sequestration proceeding, and that tbe words “ all proceedings ” are to be construed to mean all similar proceedings — that is, all proceedings against tbe defendants, to work out in equity tbe satisfaction of creditors’ claims, sucb as a creditor’s bill or supplementary proceedings. Pieree v. Milwaukee Gonst. Go. 38 Wis. 253; Powers v. G. PL. Hamilton Paper Go. 60 id. 23, 28.</p> <p>Tbe court could not, in tbis action, order tbe sheriff to turn over property beld on executions, or require tbe receiver to take possession of sucb property: (1) Because tbe statute expressly provides that tbe receiver shall reduce to possession by action all property of tbe corporation adversely beld. Sec. 3219, E. S. (2) Because tbe courts uniformly bold that tbe principal action does not provide tbe machinery necessary to try tbe respective rights of the parties claiming the property. Gélpeke m. M. & H II. Go. 11 Wis. 454; Andrews v. Pasehen, 67 id. 413, 415; Clarke v. B. c& V. P. Go. 50 id. 416; Van Alstyne v. Cook, 25 N. T. 493; In re H. A. Gutta Percha Go. 17 How. Pr. 549; Meeker v. Torrance, 31 N. Y. 641; Pick v. Loutrel, 18 How. Pr. 121. (3) Because tbe court bad power to sequester only the property of the defendant corporation. Tbe property beld on tbe executions, and tbe right to its possession, bad ceased to belong to tbe corporation and had passed to the creditors at law. Preferences so acquired have been upheld by tbis court in a long series of decisions, ending in Gribb v. Hibbard, /S'., B. dc Go. 77 Wis. 199. The circuit court proceeded on the theory that secs. 3216-3228, E. S., constitute a bankruptcy act more far-reaching than any yet passed by any legislative authority; and that the commencement of an action thereunder, ipso facto, avoided all attachments and executions theretofore levied. The courts seem to be unanimous in laying down a contrary rule. Hubbard v. Hamilton Bank, 7 Met. 340; Davenport v. Til-ton, 10 id. 320; High, Receivers, 282, 401; In reWaterbury, 8 Paige, 380; White, P. <& P. Mfg. Go. v. Pettes Imp. Co. 30 Eed. Rep. 864; Jones v. Bank of Leadville, 10 Oolo. 464; Artisans'1 Bernik v. Treadwell, 34 Barb. 554, 563; In re Ohurch <& G. Mfq. Go. 40 Minn. 39; State v. Curran, 15 How. 308.</p> <p>The decisions of America and England are uniform upon the proposition that, in the absence of restrictive legislation, an insolvent corporation may prefer a creditor in all respects as a natural person may. Wait, Insolv. Corp. sec. 162; Goats v. Donnell, 94 N. T. 178; Conlee L. Go. v. Bipon Li <& M. Go. 66 Wis. 487; Gatlin v. Eagle Bank, 6 Conn. 233; Wilkinson v. Bauerle, 41 N. J. Eq. 635; Bergen v. Porpoise F. Go. 42 id. 397; Buell v. Buckingham, 16 Iowa, 284; Pyles v. Riverside F. Go. 30 W. Ya. 123; Planters' Bank v. Whittle, 78 Ya. 737; Wa/rfield v. Marshall Go. G. Go. 72 Iowa, 666; McMurty v. M. M. T. Go. 86 Ky. 206; Town v. Bank, 2 Dong. (Mich.), 530; Smith v. Skeary, 47 Conn. 47; Zippinoott v. Shaw O. Co. 25 Eed. Rep. 577; White, P. <& P. Mfg. Go. v. Pettes Imp. Go. 30 id. 864; Pond v. F. <& L. R. Go. 130 Mass. 194; Maryland v. Bank of Md. 6 Gill & J. 205.</p> <p>They contended, inter alia, that a lien acquired by attachment or execution levy in the ordinary way, without collusion or fraud, before a bill to sequestrate the property of a corporation and wind up its affairs, was valid, and that a corporation, though insolvent, might pay or secure a creditor up to the time a suit is commenced to sequestrate the property. Turnbull v. 'Prentiss L. Go. 55 Mich. 387; Wilkinson v. Bamerle, 41 N. J. Eq. 635; Atlas Panic v. Hahant Panic, 23 Pick. 480; Smith v. Skea/ry, 47 Conn. 47; White, P. de P. Mfg. Go. v. Pettes Imp. Go. 30 Eed. Eep. 864; Pyles v. Riverside F. Go. 30 W.Y a. 123; Preene v. M. c& M. Panic, 11 Col. 97; Rollins v. Shmer W. <& 0. Go. 80 Iowa, 380; Van Alstyne v. Goolc, 25 N. Y. 489; Va/rnum, v. Hart, 119 id. 101; Pa/ulding v. Ghrome 8. Go. 94 id. 335; Garrett v. Burlington P. Go. 70 Iowa, 197; State v. Bamlc of Md. 6 Gill & J. 205; Pama v. Panic of TJ. S. 5 Watts & S. 223; Ohautaugxie Go. Bamlc v.Risley, 19 N. Y. 369. The general rule in this country is that the receiver obtains title subject to all liens previously acquired. Beach, Receivers, sec. 202. If he has reason to believe such liens are fraudulent he can bring an action to set them aside, and this is the proper and orderly way to proceed in such cases. Andrews v. Pasohen, 67 Wis. 413. Where the receiver’s title does not vest until after a creditor’s levy, his only remedy is by action. GeVpeke v. M. <& H. R. Go. 11 Wis. 454.</p> <p>They argued, among other things, that the statute, secs. 3216-3228, E. S., authorizes the action, and sec. 3227 confers ample authority upon the court to enjoin other proceedings. It was intended by the statute to secure an equal distribution of the property of an insolvent corporation among its honest creditors, and for that purpose to divest all hens by which other creditors seek to obtain preference. Adler v. Milwaukee P. P. Mfg. Go. 13 Wis. 57; Ballston Spa Bamlc v. Marine Bank, 18 id. 490; Pierce v. Milwaukee Const. Go. 3-8 id. 253; Powers v. O. H. Hamilton Paper Go. 60 id. 28; First Hat. Bamk v. Knowles, 67 id. 373; In re Waterbury, 8 Paige, 380; Hammond v. Hudson River I. & M. Go. 11 How. Pr. 29. That insolvent corporations cannot prefer creditors, and that the directors are trustees and the assets a trust fund for the creditors, see Haywood v. Lincoln L. Go. 64 Wis. 639, 646; LLurlbut v. Marshall, 62 id. 590; 2 Morawetz, Priv. Corp. secs. 803, 861, 894, 897; Turn-bull v. Prentiss L. Go. 55 Mich. 387; Wood v. JDummer, 3 Mason, 309; Rouse v. Merchants' Nat. Ba/nlc, 46 Ohio St. 493; Lands Appeal, 105 Pa. St. 49; Neall v. Hill, 16 Cal. 149; Adams v. LLehlor M. Go. 35 Ped. Rep. 433; Gurranv. State, 15 How. 307; Richards v. N. IL. Lns. Go. 43 N. H. 263; Port v. Russell, 36 Ind. 60; Pfohl v. Simpson, 74 N. T. 137; Taylor, Priv. Corp. sec. 759.</p>

<p> (f) Contraéis: Consideration: Assignment of mining option. (2) Agency: Sale: Unauthorized mrrender of contract: Accounting. </p> <p>1. It is a sufficient consideration for the assignment of a mining option to a corporation that the stockholders become liable to pay assessments to develop the property and do pay money for that purpose.</p> <p>2. An agent to whom property had been conveyed with full power to dispose of it in his discretion for the benefit of the principal, and who has disposed of the same and secured a contract for the payment of a valuable consideration therefor, has no authority, as between himself and his principal, to surrender such contract or release the purchaser from such payment or any part thereof, where there is no controversy as to the binding force of the contract. In case of an unauthorized surrender of such contract, the agent must account to his principal on the basis of the conditions existing immediately before such surrender.</p>

<p> Corporations: Inability of stocleholders: Pleading. </p> <p>1. Subscribers to the capital stock of a corporation to whom their stock has been issued upon payment of less than the par value thereof, may be compelled to make further payment thereon, up to such par value, for the benefit of creditors of the corporation.</p> <p>2. In an action by a creditor to enforce such liability of subscribers to the stock of a mining corporation, a complaint alleging that they had received their stock in payment for certain mining rights which they knew to be worth much less than the par value of the stock, need not further allege that the plaintiff gave credit to the corporation in the belief that full value had been paid for the stock. The plaintiff’s knowledge, when the debt was incurred, of the consideration upon which the stock was issued, if it will defeat the action, is in the nature of an estoppel, and need not be negatived in the complaint.</p>

The facts will sufficiently appear from the opinion and from the reported cases of Mickell v. Waukesha Co. 62 Wis. 469, and Chafin v. Waukesha Co. id. 463. Upon the trial a ■verdict was directed in favor of the plaintiff, and from the judgment thereon the defendant appeals. They contended, inter alia, that unless the defendant imprisoned or caused to be imprisoned the persons for whose keeping the plaintiff claims the right to recover, it cannot be held liable.

<p> Master and servant: Wrongful discharge: Evidence. </p> <p>In an action for wrongful discharge the evidence (stated in the opin- , ion) is held sufficient to sustain a verdict to the effect that the hiring was for an entire year and without conditions.</p>

<p>APPEAL from the Superior Court of Mil/waulcee County.</p> <p>The facts are sufficiently stated in the opinion. The defendant /Susannah Gitz appeals from a judgment in favor of the plaintiff.</p>

Tbe action is in tbe nature of a creditors’ suit to subject certain lots in tbe city of Milwaukee (tbe record title to wbicb is in tbe defendant Alice M. Joyce) to tbe lien of a certain judgment of tbe plaintiffs against tbe defendant Gilbert S. Joyce.

The facts will sufficiently appear from the opinion. To the point that the judgment was unauthorized by and contrary to the statutes, and was therefore void, they cited E. S. sec. 2886; Simonson v. Blake, 20 How. Pr. 484; Feihert v. Wilson, 38 Minn. 341; State v. Wcmjpaca Go. Bank, 20 Wis. 640; Soheer v. Keovm, 34 id. 349; WilUams v. Fayes, 68 id. 248; McKenzie v. Peck, 74 id. 208.

<p> Vacating order: Mistake of law: Appeal from justice's court: Dismissal. </p> <p>The mistake on the ground of which the court may vacate an order after the term at which it was entered, must be a mistake of fact and not of law. So held, where an order dismissing an appeal from a justice’s court was procured by the respondent’s attorney under a misapprehension as to its effect upon the sureties.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This action is for the alleged wrongful conversion, September 6,1886, of 1,800 tons of ice, cut and stored by the plaintiff in ice-houses owned, at the time it was stored, and in possession of John Atkins, at Palmyra, and so stored with the consent of said Atkins until the plaintiff should desire to sell the same, and which ice was worth one dollar a ton in said ice-houses.

<p> Municipal corporations: Change in grade of streets: Liability for injury to abutting lots: Constitutional law: Statutes construed: Repeal of inconsistent provisions: Whether liability governed by old or new charter. </p> <p>1. If a change in the grade of a street is made under authority of la-w- and with due care, the municipality is not liable for the consequential injury to abutting lots, unless made so by statute or the constitution.</p> <p>2. There is, in such a case, no taking of private property for public use, within the meaning of sec. 13, art I, Const</p> <p>3. Nor is a lawful change in the grade a closing up, use, or obstruction of the street, within the meaning of ch. 255, Laws of 1889.</p> <p>4. In an action for the injury to a lot resulting from a change in the grade of the street upon which it fronted, the complaint alleged that in some portions of the street it had been filled up to a height above that authorized by the ordinance, but did not state in what portions of the street such excess of filling had been done, or the extent of it, or that the plaintiff’s lot had been injured thereby. Held, that so far as it charged a violation of the ordinance the complaint did not state a cause of action.</p> <p>6. A provision in the former city charter of Eau Claire, malting the city liable for damages caused by a change in the grade of a street, is inconsistent with and is repealed by the present charter, which contains no such provision and which repeals all acts and parts of acts inconsistent therewith.</p> <p>6. An ordinance providing for a change in the grade of a street was passed and approved before, but was not published until after, the new charter went into effect. Under both charters it had no force or validity until published. Held, that the liability of the city for damages caused by the change of grade is governed by the new charter.</p>

<p>APPEAL from the Circuit Court for Iowa County.</p> <p>Action upon a policy of life insurance or certificate of membership issued by the defendant company to Cordelia Jackson, the deceased wife of the plaintiff, who is the beneficiary named therein. -An order sustaining a demurrer to the complaint was reversed by this court. 73 Wis. 507. The facts appearing upon the trial are sufficiently stated in the following opinion. There was a verdict for the defendant, and from the judgment thereon the plaintiff appeals.</p> <p>To the point that the defendant waived the forfeiture if any accrued, they cited Si/ylow v. Wis. O. F. M. L. Ins. Go. 69 Wis. 224; Erdmamn v. Mut. Ins. Go. 44 id. 376; Bliss, Life Ins. 432, sec. 270; Frost v. Saratoga Mut. Ins. Go. o Denio, 154; Cumberland Yalley M.\ P. Go. v. Mitchell, 48 Pa. St. 374; Viall v. Gene-see Mut. Ins. Go. 19 Barb. 440’; Insurance Co. v. Eggleston, 96 U. S. 572; Appleton v. Phenix M. L. Ins. Go. 59 N. II. 541, 47 Am. Rep. 220; May, Ins. secs. 360, 361; Mat. Mut. Ben. Asso. v. Jones, 84 Ky. 110; Rice v. M. E. Mut. Aid Soc. 145 Mass. 248.</p>

<p>APPEAL from the Circuit Court for St. Croix County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassodat:</p> <p>This is an action to enforce collection against the makers and indorsers of two promissory notes, of which the following are copies, to wit:</p> <p>“ $3,199. St. Paul, Minn., July 23d, 1887.</p> <p>“ Sixty days after date we promise to pay to the order of Lewis <& Ferguson Bros., thirty-one hundred and ninety-nine dollars, at our office, St. Paul, value received, with interest before and after maturity at the rate-per cent. per annum until paid. [Signed] Rood & Maxwell.”</p> <p>“ $2,000. St. Paul, Mirar., July 23d, 1887.</p> <p>“ Ninety days after date we promise to pay to the order of Lewis c& Ferguson Bros., two thousand dollars, at our office, St. Paul,' value received, with interest before and after maturity at the rate of- per cent, per annum until paid. [Signed] Rood & Maxwell.”</p> <p>It is alleged in the complaint, among other things, in eifect, that July 25, 1887, the defendants, composing the firm of “F. II. Lewis c& Ferguson Bros.” for value received, indorsed and delivered said notes to the plaintiff; that at the maturity of said notes respectively, they were presented for payment, but were not paid, of which due notice was given to said indorsers, and said notes were thereupon protested for nonpayment; that said payees and indorsers renewed said notes, January 26, 1888, and March 29, 1888, respectively, by giving renewal notes and paying interest to those dates; that no part of either of the principal sums named in said notes or said renewal notes has ever been paid, and that there is now due and unpaid thereon $5,199, with interest at eight per cent, from May 29, 1888.</p> <p>The makers of said notes, Rood & Maxwell, made no answer, but the indorsers thereof made answer, and, among other things, denied that Lewis was a partner of Ferguson Bros., and alleged in effect that after maturity of said notes, and before the commencement of this action, the amounts due on said notes were fully paid to the plaintiff by said Rood & Maxwell, or in their interest and behalf, and that there was nothing remaining due thereon; that said indorsers made said renewal notes and paid said interest in ignorance of the fact that said notes had been paid by Rood & Maxwell.</p> <p>Upon the trial of said action, the following facts appeared, in effect, from the undisputed evidence: Rood & Maxwell resided at St. Paul. September 19, 1887, they were indebted to the plaintiff in the sum of $24;428.14 upon sundry-notes, some of which were secured by indorsements of third parties, and some were entirely unsecured, and some of which were overdue, and some not yet due, including the two notes mentioned in said complaint. To secure said notes they on that day executed and delivered to the plaintiff a chattel mortgage upon the saw-mill and all buildings, tramways, docks, structures, tools, machinery, apparatus, appliances and appurtenances of every kind and description whatsoever, therein or thereto belonging or in any wise appertaining, located and being in the town of Washburn, Bayfield county, Wis., upon the premises therein specifically described, Avhich said mortgage was thereupon filed in the proper office. Afterwards, and on the same day, the said Rood & Maxwell entered into a written' agreement with E. A. Shores, of Ashland, who was at the time president of the plaintiff bank, to the effect that the said Rood & Maxwell, in consideration of $5 to them in hand paid by said Shores, thereby agreed to give, and did thereby give, to said Shores, his heirs and assigns, for the term of thirty-five days from and after September 19, 1887, the privilege of purchasing all the lands therein described upon the terms and conditions that the total purchase price of said land should be $100,000; that said Shores, his heirs or assigns, should assume and pay the balance of $30,000 due on the mortgage on said lands held by the railway company, except the interest thereon to the date of such purchase; that said Shores, his heirs or assigns, were to pay to said Rood & Maxwell the balance of said $100,000, to wit, $70,000 in cash, deducting therefrom the unpaid interest on said mortgage, if any; and provided, further, that said Shores, his heirs or assigns, should also retain out of said $70,000 such further sum as might be sufficient to pay whatever indebtedness might be due and owing by said Rood & Maxwell to the plaintiff at the date of said purchase by said Shores, his heirs or assigns; that if said Shores, his heirs or assigns, concluded to take said lands within the time therein limited, and should deposit in the plaintiff bank said sum of $70,000, upon notice thereof said Rood & Maxwell Avere to make, execute, and deliver to said plaintiff, for said Shores, his heirs or assigns, a good and sufficient warranty deed of said lands, subject, however, to said mortgage to the railway company, and the said plaintiff, upon placing to the credit of said Rood & Maxwell said sum of $70,000, less whatever sum might be necessary to pay such interest, and less whatever sum might be necessary to pay whatever indebtedness might then be due and owing to said plaintiff by said Rood & Maxwell, should deliver said deed to said Shores, his heirs or assigns. October 22, 1887, the Third National Bank of St. Paul levied an attachment upon all the property of Rood & Maxwell, including the lands covered by said option. Rood & Maxwell failed and made an assignment of all their property, real and personal, for the benefit of their creditors, to one O. Flanders, October 24, 1887. Rood & Maxwell were owing the C. 0. Thompson & Walkup Company, of Chicago, a large amount of money. That company succeeded to whateAfer rights the said Third National Bank had in said premises, by an assignment. The plaintiff foreclosed said chattel mortgage, and ott December 14, 1887, sold the property included therein for the sum of $15,000, and applied the proceeds thereof, less expenses, being about $14,600, upon the claims it held against Rood' & Maxwell. Only a comparatively small amount thereof was applied on the notes in suit. February 24,1888, the said E. A. Shores and wife, by an instrument in writing under their hands and seals, in consideration of $5,750 to them in hand paid, sold, assigned, and conveyed to the said C. C. Thompson & W alkup Company, a corporation under the laws of Illinois, all their right, title, and interest in and to all tbe pine lands described in said option contract, and they particularly sold, assigned, and conveyed to said corporation all tbeir rights under and by virtue of said option contract. That instrument was duly witnessed and acknowledged by the said Shores and wife, and recorded in the proper office.</p> <p>At the close of said testimony, the court directed a verdict in favor of said indorsers, F. H. Lewis da Ferguson Bros. From the judgment entered thereon, the plaintiff appeals.</p>

<p>APPEAL from the Circuit Court for Walworth County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>Paul Broder was a lawyer, and resided at Beloit with the defendant and his other two sisters. December 7,1881, he was found at the foot of the stairway leading to his office, with a fractured skull. Physicians were called to his assistance, and the plaintiff, a physician and surgeon of long standing at Janesville, was called in consultation, and attended him twice while living, and saw him a few moments after his death, December 14, 1881. The defendant and her sisters took the body, and placed it in Calvary vault, Chicago, where it remained until September 8, 1885, when she and they removed it therefrom to Beloit. •</p> <p>Having become convinced that her brother had lost his life by violence, the defendant applied to Dr. Palmer, a short time prior to September 10, 1885, to make an autopsy of the bodjT. The doctor declined to make any post mortem examination, except under legal direction. Thereupon, and on the day last named, the defendant appeared before A. D. Wickham, a justice of the peace in Janesville, and filed the required affidavit before him for an inquest upon the body of Paul Broder. Justice Wickham thereupon summoned a jury, appointed a constable to attend them, issued a subpoena for Dr. Palmer and Ms son, and they all proceeded to Beloit to hold such post mortem examination. On view of the body, the jury were sworn to make such inquest, and thereupon Justice "Wickham directed Dr. Palmer to make a post mortem examination of said body, and to do everything that was necessary in regard to it, to find out how Paul Broder came to his death, and thereupon said inquest was adjourned to September 14, 1885, at the office of said justice, in Janesville. Thereupon the body was taken to a granite tomb in Beloit, which had been prepared by the defendant and her sisters, and there, at the tomb, Dr. Palmer and his son, and a student in his office, by the name of Wintermute, in the presence of the sexton and undertaker, made such post mortem examination, and removed the top of the head by sawing off the, same from the skull entirely around,'removing the upper portion in order to expose the contents, and thereupon took the portion so removed with him to Janesville.</p> <p>The inquest proceeded before said Justice Wickham at Janesville, on the 14th, 16th, and 22d days of September, and the 1st day of October, 1885, during which time the plaintiff was sworn, and testified before said jury and justice, having with him at the time, wrapped in a paper and lying on the table, the portion of the head so removed. The defendant was present at such examination. After the plaintiff had finished his testimony, the said justice directed him to take the bones, and take good care of them, which he did. On the last day of said examination, the jury returned a verdict to the effect that said Paul Broder received injuries, December 1, 1881, not resulting from accident, but that he came to his death by violence and injuries inflicted by some person or persons to the jury unknown, from which injuries he died, December 14,1881, at Beloit.</p> <p>On July 24, 1889, the defendant made complaint in writing, before O. H. Orton, Esq., a police justice in the city of Beloit, charging the plaintiff and others with unlawfully, feloniously, knowingly, and wilfully removing and conveying away from the cemetery and common burying place in Beloit, the remains of said Paul Broder, or a portion thereof, September 10, 1885. The said Police Justice Or-ton thereupon issued a warrant for the arrest of the plaintiff and others, and the plaintiff was thereupon arrested and brought before said police justice, July 25, 1889, whereupon said proceedings were continued to July 29, 1889, w;h.en an examination was had, and at the close thereof the plaintiff was discharged from said arrest, and said proceedings as to him fully terminated.</p> <p>On August 14, 1889, the plaintiff commenced this action in the circuit court for Rock county, for malicious prosecution, and alleged in his complaint, among other things, in effect, that the defendant had caused said criminal proceedings to be commenced and prosecuted without any probable cause whatsoever, maliciously and falsely charging the plaintiff, by her sworn complaint before said police justice, with having committed the offense mentioned, and also alleging his discharge and the termination and the ending of such criminal proceedings. The answer consisted of admissions and denials, and also justified on the ground that such criminal proceedings had been instituted in good faith upon the advice of counsel. The venue was changed to Wal-worth county, where the cause was tried, and at the close of the trial the jury returned a verdict against the defendant and in favor of the plaintiff, and assessed his damages at $100. Prom the judgment entered on that verdict the defendant appeals.</p>

<p>APPEAL from the Circuit Court for Taylor County.</p> <p>Replevin for a quantity of pine logs cut in 1888 by the defendant upon lands alleged to belong to the plaintiff company. The answer denied the plaintiff’s ownership, and alleged that the lands belonged to R. E. Rust, Laura Rust, and John E. Rust and wife, and that in 1881 the said owners had conveyed to the defendant all the pine timber thereon, with license to enter upon the lands and cut and remove such timber. Other allegations of the answer, and the evidence given on the first trial of the action, will sufficiently appear from the report of a former appeal in 73 Wis. 409. A second trial by the court without a jury resulted in a judgment for the plaintiff, from which the defendant appeals.</p>

Action for slander. The slanderous words are set out in the complaint, and it is alleged therein that they were maliciously spoken by the defendant Mina Hertling of and concerning the plaintiff to a number of persons, on or about October 23, 1887, at the city of Milwaukee. The plaintiff is a married woman, and such words impute to her the crime of adultery. The answer is a general denial.

TRe following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion: This is an action in equity, brought by the plaintiffs, who claim to be heirs at law and legal representatives of William Weeks, deceased, to compel the defendant to transfer to them the legal title to certain lands described in the complaint, and which they allege are held by the railway company in trust for them.

<p> Right to maintain dam: Prescription: Pleading: Evidence: Adverse entry: Navigable river: Presumption that occupation is permissive: Interruption of possession: Extent. </p> <p>1. In an action to establish the plaintiff's right to maintain a dam across the main channel of the Wisconsin river, from the eastern shore, owned by the plaintiff, to an island which with the western shore belonged to the defendant, allegations of the complaint that those under whom the plaintiff claims and has title, for more than twenty years immediately succeeding the year 1847, to wit, for forty years thereafter, had continuously and uninterruptedly maintained said dam, abutting the same on said island at the same point, with the full knowledge of those claiming adverse interests in said island and western shore, and against the interests of said claimants or owners, under a claim of right so to do, are held sufficient to give" the defendant notice that title by prescription would be relied upon.</p> <p>2. The construction of the dam abutting on the island, and its maintenance as alleged, are evidence that the entry was adverse.</p> <p>3. From the fact that the dam was across a navigable river it cannot be inferred that the occupation and possession were merely permissive so far as the defendant was concerned.</p> <p>4 A change in the slide of the dam, to secure greater safety in running lumber, made by the Wisconsin River Improvement Company with the consent of the persons in possession of the dam, and in subordination to their title, was not an interruption of the continuity of the adverse possession.</p> <p>5. Graeven v. Dieves, 68 Wis. 820; Childs v. Nelson, 69 id. 125; and Fairfield v. Barrette, 78 id. 464 (as to the extent of adverse possession under conveyances), distinguished.</p>

<p> Fraudulent conveyances: Estoppel: Homestead. </p> <p>1. Pending an action by judgment creditors to set aside as fraudulent certain conveyances by the debtor, including a deed of a lot to M., a bank purchased the judgments and was substituted as plaintiff, the debtor having agreed to procure reconveyances of all the property and to give mortgages thereof to the bank to secure the balance due on the'judgments. Pursuant to this agreement the debtor procured reconveyances of a portion of the property, and gave to the bank several mortgages, including one, to secure a certain part of the balance due, upon a portion of the lot which had been conveyed to M. A prior mortgage upon the whole of said lot was afterwards foreclosed, the bank being the purchaser at the foreclosure sale. M. repaid to the bank the purchase money paid by it on such sale, and also jJaid to it the amount of its mortgage aforesaid on a portion of the lot, and the bank thereupon conveyed the lot to M. and dismissed the action as to her. Held, that although the original conveyance by the debtor to M. was fraudulent, the bank could not thereafter subject the part of the lot which had not been mortgaged to it to the payment of any balance due upon the judgments.</p> <p>2. A conveyance of his homestead by an insolvent debtor is not fraudulent as to creditors.</p>

<p> Money unlawfully appropriated by county to town: Liability of officer receiving it. </p> <p>1. Where money has been 'appropriated by a county to a town and received by a town officer for the town, such officer must account for it to the town, although the appropriation was without authority of law.</p> <p>3. In an action by the town against such officer to recover the money, it is no defense that he has expended it for the use of the town in repairing its highways and bridges, where it was'-not expended under the direction of the town board and no account thereof had been rendered to such board to be audited and allowed.</p>

<p> Corporations: Mortgages: Estoppel. </p> <p>Where a mortgage given by a corporation to secure payment of its note for money borrowed by it and used in its business, was executed by officers who owned all the corporate stock except perhaps one share, both the corporation and such officers are estopped from setting up a want of authority in the corporation to give the mortgage or in the officers to execute it</p>

<p>APPEAL from the Circuit Court for Brown County.</p> <p>The case is sufficiently stated in the opinion.</p> <p>They cited 2 Jones, Mortg. secs. 1215,1223; 4 Kent’s Comm. 183, 184, and cases cited; Lansing v. Goelet, 9 Cow. 354; Hughes v. Edwa/rds, 9 Wheat. 489; Gilman v. III. <& Miss. Tel. Oo. 91 U. S. 603; Draper v. Mann, 117 Mass. 439; Ely v. Ely, 6 Gray, 439; Morris v. Branohaud, 52 Wis. 190; secs. 76-81, ch. 84, R. S. 1849; secs. 3154, 3156, R. S. 1878; Stihoell v. Kellogg, 14 Wis. 465; Bonesteel v. Bonesteel, 28 id. 245; Bliss v. Weil, 14 id. 35.</p>

<p>ERROR to the Circuit Court for Olark County.</p> <p>The plaintiff in error, Hugh Perkvns, was tried, upon an information charging him with the murder of one Isaac Meddaugh, and was convicted of manslaughter in the second degree. The testimony given on the trial was conflicting. That on behalf of the defense tended to show that on the day previous to the homicide there had been a quarrel between Meddaugh and Perkvns at the saw-mill operated by the latter; that Meddaugh, who was a larger and more powerful man than Perkins, had then made a violent assault upon Perkins, and had only been prevented from doing him serious injury fly the intervention of a third person; and that Meddaugh had threatened to taire Perkins's life. On the day of the killing Meddaugh with two companions came to the mill for the purpose, as the prosecution claimed, of hauling away some lumber which had been sawed for him. The testimony for the defense tends to show that one of the companions of Meddaugh went into the mill and there used very abusive language to Perkins, who finally ordered him to go out; that he then returned and spoke to the other two, who thereupon threw down their hats and jackets and started into the mill; that as they were advancing rapidly toward Perkins he called out to them three times to stop, savipg, the last time, “ Stop, Ike, or I’ll shoot! ” Meddaugh replied, “ Shoot, you son of a b-! ” and as he grasped or struck at.Perl&ms the latter fired tbe fatal shot from a revolver wbicb be .bad drawn from bis pocket. Other facts will sufficiently appear from tbe opinion.</p> <p>They argued, among other things, that if tbe assault upon him was felonious the plaintiff in error was not bound to retreat. Pond v. People, 8 Mich. 150; 1 Bish. Grim. Law (7th ed.), sees. 849-853, 866, 867, 869; Stoneham v. Oomm. 86 Ya. 543; Burgess v. Territory, 8 Mont. 57; Ma/rcum v. Oomm. 4 S. W. Eep. (Ky.), 786; Erwin v. State, 29 Ohio St. 186; Bunyan v. State, 57 Ind. 82; Carroll v. State, 23 Ala. 28; State v. Evans, 33 W. Ya. 417; People v. Gonzales, 71 Oal. 569; Radford v. Oomm. 5 S. W. Eep. (Ky.), 343; Mmj v. State, 23 Tex. App. 146; U. S. v. Wiltberger, 3 Wash. O. 0. 515; Oomm. v. Self 'ridge, Horr. & T. Cases, Self Def. 28, 33. Tbe court undertook to charge tbe jury on tbe law of retreat, and was bound to charge correctly and give the whole, and not a part, of tbe law applicable thereto. Lancaster v. Oomm. 4 S. W. Eep. (Ky.), 320; Agee v. Oomm. 5 id. 47; State v. Burke, 30 Iowa, 331; Keener v. State, Horr. & T. Oases, Self Def. 539, and cases cited. It was error to instruct tbe jury that there was no evidence to warrant a verdict of manslaughter in tbe third degree. E. S. sec. 4354; 1 Hale, P. G. 449; 4 Bl. Oomm. 191; Wharton, Homicide, 35, 417; State v. Oodp, 18 Oreg. 506; State v. Norton, 28 S. 0. 572; State v. Brown, 40 La. Ann. 725; Oook v. Oomm. 86 Ky. 663; State v. Evans, 36 Kan. 497; Territory v. Baker, 4 N. Mex. 117; State v. Wilson, 98 Mo. 440; State v. Wensel, 98 id. 137; State v. Elliott, 98 id. 150; People v. Freel, 48 Oal. 436; and cases cited in the opinion in this case. • ,</p> <p>As to the error in regard to the impeachment of the witness Eobert Meddaugh, counsel cited, besides the authorities cited in the opinion, General v. Hitchcock, 1 Exch. 91, 99; State v. Downs, 91 Mo. 19; Bapalje, Witnesses, sec. 209; Tinildepaugh v. Sounds, 24 Minn. 298; 1 Greenl. Ev. seo. 441.</p> <p>They contended, inter alia, that the instruction in relation to retreat was correct as applied to this case. The cases in which a man is not obliged to retreat are limited to assaults made with a dangerous weapon or in such a manner as to indicate a felonious assault, with the means at hand of doing some more serious injury than assault and battery. Comm. v. Drumm, 58 Pa. St. 1, 20; Shorter v. People, 2 N. Y. 193; People v. Sullivan, 7 id. 399; U. S. v. Wiltberg&r, 3 Wash. C. 0. 515; State v. Kennedy, 20 Iowa, 569; Gresehia v. People, 53 Ill. 295; State y. Martini, 30 Wis. 216; Horr. & T. Cases, Self Def. 28-33; 1 Bish. Crim. Law, 50; Whart. Homicide, sec. 480; 1 Whart. Crim. Law, sec. 484; People v. Gole, 4 Parker Or. Bep. 35; Peopde v. Pieree, 2 Edm. Y6; People v. Doru-aldson, id. 85. See, also; State v. Ganrie, 35 La. Ann. 9Y0; Pannish v. State, 14 Neb. 6Y; State v. Shelton, 64 Iowa, 340; State v. Mahcm, 68 id. 306; Canter v. State, 82 Ala. 15; Duncan v. State, 49 Ark. 54Y; State v. Donelly, 69 Iowa, Y05; D. S. v. Outerbridge, 5 Sawy. 620; Dcmison v. People, 90 Ill. 221; State v. Denham, 23 Iowa, 154.</p>

<p>ERROR to the Circuit Court for Sheboygcm County.</p> <p>The facts will sufficiently appear from the opinion.</p>

<p> Bastardy: Evidence: New trial. </p> <p>1. In bastardy proceedings there was no error in holding that the defendant was bound by the answers of the complaining witness on cross-examination, denying that she had scuffled with another man in the presence of the whole family about the time the child was begotten, but allowing him to show that at about that time she was with other men under circumstances which would give rise to a suspicion that there might have been intercourse between them.</p> <p>2. It was not an abuse of discretion for the trial court to permit the complaining witness to be recalled, after the defendant had put in part of his evidence, in order to correct her testimony as to the exact date when the child was begotten.</p> <p>8. Where it does not appear that newly discovered evidence would probably produce a different result, there is no abuse of discretion in refusing to grant a new trial upon that ground.</p>

Croix County. Action for the wrongful conversion of personal property. The defendant, who was the sheriff of St. Croix county, justified the taking under a writ of attachment against, the firm of I-Iagen Bros., issued in an action brought by creditors of that firm. The facts will sufficiently appear from the opinion. There was a verdict in favor of the plaintiff for 0974.18, and from the judgment thereon the defendant appealed.

Tbe defendant garnishee, Kate Pier, was named as as-signee in an attempted voluntary assignment for tbe benefit of creditors, executed by one Bartell to ber under see. 1694, E. S. Sbe attempted to qualify as sucb assignee, and took possession and disposed of tbe assigned assets, pursuant tQ tbe assignment.- While she was thus disposing of sucb assets, tbe plaintiff commenced an action against Bar-tell, obtained an attachment, and caused tbe defendant to be summoned as a…

The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion: This is an action to remove a cloud upon the plaintiff’s title to real estate situate in the city of Fond du Lac.

Action upon a contract of insurance against accident. The facts will sufficiently appear from the opinion. The plaintiff appeals from a judgment dismissing the complaint. They contended, inter alia, that the agent’s agreement, whether oral or written, binds the company,— citing, besides cases cited in the opinion: Kelly v. Commonwealth Ins. Co. 10 Bosw. 83; Wood, Fire Ins. sec. 9 ; Commercial M. M. Ins. Co. v. Union Mut. Ins. Co. 19 How. 318; Mealy v. Imperial F. Ins.

<p> Conveyance of land: Agreement to support grantor: Equity: Rescission. </p> <p>1. The plaintiff, a widow fifty-nine years old and so crippled that she could walk only with crutches, conveyed her land to her nephew L., who at the same time executed an instrument purporting to lease the land to the plaintiff, “ her heirs, executors, administrators, and assigns,” during her natural life. The plaintiff agreed, in said instrument, to be of no expense to L. while absent from the family, and to demand only the necessaries of life and a Christian burial. L. agreed therein to erect a suitable tombstone on the plaintiff’s grave; and it was provided that in case L. should die before the plaintiff the latter should not be bound to live with his heirs, but should have the same control over the premises as if he were living. L. went into immediate possession and exclusive control of the land, and so remained until his death, when his legal representatives took possession and control. Held, that the instruments, construed together, were in effect a conveyance of the land to L., his heirs and assigns, upon condition that they should support the plaintiff during her life; and that for a breach of such condition a court of equity would set aside the conveyance and do equity between the parties.</p> <p>3. Such conveyance being set aside for breach of the condition by the heirs of L., they are not entitled to reclaim all that has been expended for the plaintiffs support, less the rents and profits actually received, but, in this case, are allowed only the amount expended for permanent improvements on the land, less the amount of the damage done by the cutting and removal of timber-.</p>

<p> Charivari: Assault and battery: Jurors: Prejudice against crime: Instructions: Self-defense: Warning rioters away. </p> <p>1. In an action for damages for the shooting of the plaintiff in the leg while he and others were giving the defendant a charivari, the plaintiff’s attorneys should not have been permitted to ask jurors on the voir dire whether they had any prejudice against charivari parties.</p> <p>8. In such a case, instructions as to justifiable homicide were erroneous as being calculated to mislead the jury.</p> <p>8. The charivari party having been warned by the defendant to desist on the first night when they came to his house, and having returned on two subsequent nights, he was not bojmd to notify them, on the third night, that their shooting, noise, and tumult were terrifying his wife and children and endangering their lives, before taking effectual means, by shooting or otherwise, to drive them away.</p> <p>4. Upon the question of self-defense, the jury should have been instructed as to the difference between an assault by a body of rioters and one by a single person, and that in the former case the assaulted person may act with more promptness and resort to more forcible means to protect himself and his family than in the latter case.</p>

<p> {1, 2) Promissory note: Consideration: Duress by threats: Compounding felony. (3) New trial: Misunderstanding of charge by jurors. </p> <p>1. A note signed by a sister because of threats by the payee to prosecute her brother for a crime, and in order to avoid such prosecution, cannot be enforced against her by such payee. It is immaterial that the threats were not made directly to the sister, if they were intended to be communicated to her and were so communicated.</p> <p>2. It seems that a note cannot be avoided on the ground that it was given to compound a felony, unless the felony is confessed or a prosecution therefor was commenced before the making of the note. Cat-lin v. Menton, 9 Wis. 476.</p> <p>8. Affidavits of jurors that they misunderstood the charge will not be received to impeach their verdict.</p>

<p> Voluntary assignment: Promissory notes: Proof of claim against estates of matter and indorser: Dividends. </p> <p>Where, after a note has become due and an indorser-has been charged with its payment, both the maker and the indorser make assign^ ments for the benefit of creditors, the holder of the note may prove his claim against the estate of each severally for the full amount due; and a dividend received from the estate of the maker after the claim has been proved against the estate of the indorser will not affect the right to receive a dividend from the latter estate upon the full amount of the original claim, provided both dividends do not exceed the whole amount of such claim.</p> <p>See note to this case in 11 L. R. A. 841. — Rep.</p>

<p> Contraéis: Action by third person: Want of privity: Mortgages. </p> <p>D. agreed with the plaintiffs to pay off a mortgage on his lands and to give them a mortgage thereon to secure a debt to them, the time for payment of which was to be extended. He jDaid the amount of the mortgage debt to the defendants (who had loaned the money to him for the mortgagee), and they, with knowledge of the agreement and in the presence of one of the plaintiffs, promised D. that they would pay the money over to the mortgagee and procure a discharge of the mortgage. Plaintiffs thereupon accepted a mortgage as agreed, and afterwards foreclosed the same and bid in the land. The defendants having failed to pay off the first mortgage, a suit to foreclose it was brought, and the plaintiffs herein defended, alleging payment, but,were defeated on the ground that the defendants herein were not authorized to receive payment for the mortgagee. The defendants herein were not notified to defend that suit. Held, that the defendants herein are not liable, on the ground of their promise to D., to reimburse the plaintiffs for their costs and expenses in defending the foreclosure suit.</p>

<p> (1) Change of venue: Prejudice of judge. (2) Modification of order. (3) Appeal from order: Limiting time. </p> <p>1. Defendant filed an affidavit of prejudice of tlie judge, and applied for a change of venue pursuant to sec. 2625, S. & B. Ann. Stats. The order denying the application purports to have been made by the court at a regular term and on hearing tire attorneys for both parties. Held, that on the face of the papers the application was regularly made and was therefore improperly denied, the right to the change of venue being absolute.</p> <p>2. The court below had no power, at a subsequent term and after an appeal from the order had been perfected, to modify the order so as to make it appear to have been made at chambers and without notice to, or hearing of, the plaintiff’s attorney.</p> <p>3. A party’s knowledge of the entry of an order is not sufficient to limit the time within which he may appeal therefrom to thirty days, under sec. 3042, E. S., unless the prescribed notice is served upon him.</p>

<p>APPEAL from, the Circuit Court for Iowa County.</p> <p>Action of trepass brought by Bernard WesUng and John Gelhner against John Kroll and Frm!& Kroll. The facts will sufficiently appear from the opinion. The defendants appeal from a judgment in favor of the plaintiffs.</p>

This action is to reform a deed of land. In 1883, defendant owned a farm on sections 16 and 21 in a township in Grant county. It included the W. of the S. W. and the S. E. J of the S. W. J of section 16, except five acres theretofore conveyed to others, and fifty-three acres on the north side of the N. W. ¿ of section 21, which is south of and adjoining section 16.

<p> (1-8) Municipal corporations: Defective sidewalk: Negligence in making repairs: Gouri and jury: Evidence. ($) Instructions to jury: What must be reduced to writing. </p> <p>1. In an action for personal injuries sustained through, the breaking of a plank in a sidewalk, it appeared that the plank in question was a new piece four feet long, four inches wide, and two inches thick, resting upon a stringer at each end; that it had been placed there by the authorities of the defendant city, about three weeks before the accident, to repair a rotten place in the walk; and that it broke when the plaintiff, who weighed 175 pounds, stepped upon it. Held, that these facts tended to show that the plank was a defective one, and that the city was negligent in selecting it to be used in making the repairs.</p> <p>2. Evidence, offered by the defendant, that it was a common practice to repair walks in that way, and that a sound plank of those dimensions, when supported by stringers four feet apart, would sustain the weight of two heavy men, was properly excluded.</p> <p>8. Evidence that cows sometimes passed along the walk, offered as tending to show that one of them might have broken the plank before the plaintiff stepped on it, was also properly excluded.</p> <p>4. After the jury had retired and had deliberated for some time without agreeing, the trial judge had them brought into court, and made some remarks to them as to their duty as jurors and the importance of their agreeing upon a verdict if they could do so without the sacrifice of honest convictions. Held, that these remarks were no part of the charge which, by sec. 2853, R. S., is required to be reduced to writing.</p>

<p>APPEAL from tbe Circuit Court for Qra/nt County.</p> <p>Tbe facts are’ stated in tbe opinion.</p> <p>They cited 1 Perry, Trusts, secs. 443, 463; Flint, Trusts, sec. 164; Lewin, Trusts, *295-6; 75 Am. Dec. 804, note; Williams v. Williams, 55 Wis. 300; Lunham v. Blundell, 4 Jur. (N. S.), 3; Comm. v. MeAlis-ter, 28 Pa. St. 480; 8. C. 30 id. 536; Jenhins v. Walter, 8 Gill & J. 218; In re Stafford, 11 Barb. 353; School Dist. v. First Nat. Bank, 102 Mass. 174.</p> <p>contended, mter alia, that tbe true rule, deducible from all tbe cases, is that when, tbe act of tbe trustee is unequivocal in character, and itself amounts to an actual conversion of tbe funds, tbe loss, if any, must be borne by him; but when tbe act is not so unequivocal, although if unexplained it might be consistent with an intention to convert tbe funds, if tbe explanation or proof is furnished, contemporaneously with the act or before the loss occurs, showing unequivocally that there was no such intention, the loss does not fall upon the trustee. Simply talcing a certificate of deposit, or even a promissory note, in the individual name of the trustee, is not conclusive evidence of an intention to convert the fund and does not make him liable for the loss. Knight v. Earl of Plymouth, 1 Dickens, 120; S. 0.'3 Atk. 480; Parsley’s Adm’r v. Ma/rtin, 77 Ya. 376; Beasley v. Watson, 41 Ala. 23J-239; Ba/rih v. Ooleman, 20 id. 140; MoTyer v. Steele, 26 id. 487; Bams v. Barman, 21 Gratt. 194; Pidgeon v. Williams, id. 251; Cooper v. Cooper’s Ex’rs, †† Ya. 198; Adams v. Glaxton, 6 Yes. 226; Powth v. BoweTl, 3 id. 565; Seawall v. Qreenwa/y, 22 Tex. 697, 75 Am. Dec. 803, and note; Brown v. Bunham, 11 Gray, 42.</p>

Unlawful detainer. The following statement of the case was prepared by Mr. Justice Cassoday : It appears from the record that some time prior to July 5, 1880, the defendant and wife conveyed to one McLeod the sixty acres of land in question, to secure tbe payment of $150 and interest, and took back from him a land contract providing for tbe reconveyance of tbe same upon payment of said debt and interest; that July 5, 1880, an arrangement was made between tbe parties whereby…

Ejectment. A former appeal is reported in 61 Wis. 648. The plaintiff obtained a new trial under the statute (sec. 3092, R. S.), which resulted in a verdict for the defendant. Prom the judgment entered on such verdict the plaintiff appeals.

Tbe action was brought before a justice of the peace under sec. 3358, R. S., as amended by ch. 326, Laws of 1882 (S. & B. Ann. Stats, p. 1873), to remove defendant from certain premises leased to him by the plaintiff, because of the nonpayment of overdue rent.

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

<p> Sale of chattels: Where delivery to be made: Evidence: Court and jury. </p> <p>The defendants at La Crosse ordered the plaintiff in Chicago to ship to them ten cases of coffee. The plaintiff delivered the coffee to a carrier in Chicago, consigned to the defendants, and paid the freight thereon. Five of the cases were taken from the carrier in Chicago under an attachment against the defendants, and were never delivered at La Crosse. In an action for the purchase price the defendants alleged nondelivery of the five cases. Held, (1) that parol evidence was admissible to show a continuing contract between the parties, at the time the coffee was ordered, that all coffee bought by the defendants should be delivered in La Crosse; and (2) that upon the evidence in this case the question as to where the delivery was to be made was one for the jury.</p>

<p>APPEAL from the Circuit Court for Jaeltson County.</p> <p>Action to recover damages for personal injuries alleged to have been sustained by the plaintiff on January 1, 1889, by reason of the defendant having “improperly, negligently, wilfully, and wrongfully shouted, hallooed, yelled, and whooped,” thereby frightening the horses attached to the sleigh in which he was riding, so that they ran away and collided with the cutter in which the plaintiff was, overturning such cutter and severely injuring the plaintiff. The facts will sufficiently appear from the opinion.</p>