Volume 79 — Wisconsin Reports

<p> Action by receiver: Fraudulent conveyances: Bill of exceptions: Pleading: Waiver. </p> <p>1. A receiver, appointed in supplemental proceedings after judgment, wlio seeks by action to set aside a conveyance by the judgment debtor as having been made with fraudulent intent, must allege and prove such intent as to that conveyance, otherwise its validity cannot be adjudicated in that action.</p> <p>& The objection that such conveyance is not mentioned or embraced in the complaint, is not waived by the defendants not objecting to the admission of evidence thereof, if such evidence was admissible upon the issues actually made.</p> <p>8. A conveyance of land, made in good faith by an insolvent debtor to one of his creditors in full or partial payment of his valid .debt to such grantee, is valid as against his other creditors.</p> <p>4. The mere fact that such creditor knew of his debtor’s insolvency, though it may be evidence of fraudulent intent, cannot be deemed sufficient evidence thereof.</p> <p>5. A statement in a bill of exceptions, at the end of the testimony, that “the foregoing was all the evidence offered and received on the trial of said cause,” is equivalent to a certificate by the trial judge that the bill contains all the evidence.</p>

<p>APPEAL from the Circuit Court for Green County.</p> <p>A statement of this case, as it appeared on a former appeal, will be found in Wis. 542. Upon a new trial, twenty questions were submitted to the jury for a special verdict. The scope of those questions and facts sought to be determined by them, and the findings of the jury thereon, sufficiently appear in the opinion. Those being favorable to the defendant, a judgment was entered for him, from which the plaintiff appeals.</p> <p>They argued that it was competent for adjoining owners to locate by agreement a boundary line which was unknown; that the line disputed in this ease had been so located, and tbe parties bad long acquiesced in it and were bound thereby, citing numerous cases.</p>

<p> Public lands: Fractional lot: Patent construed: Adverse possession. </p> <p>1. The northeast quarter of the southeast quarter of a section was fractional, and, together with a small triangular piece north of the quarter-section line, was platted by the government as lot 4 of the section, the plat showing that such lot contained 39.56 acres. A patent describing the land granted thereby as the northeast quarter of the southeast quarter of said section, containing 39.56 acres — that being the quantity of land paid for by the patentee, — -is held to convey to the patentee the whole of lot 4. The fact that said lot is in two quarter sections is not important.</p> <p>2. The grantee of land cannot have the benefit of his grantor’s adverse possession of land not included in the conveyance.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The case is fully stated in the opinion.</p> <p>They argued that equity will not entertain a bill for specific performance of a contract to convey personalty. 3 Pomeroy, Eq. sec. 1492; Fry on Spec. Performance, sec. 29 et seq. Plaintiff had an ample remedy at law in an action for the conversion of the property. He had not entitled himself to equitable relief by performing or readiness to perform on his part. 3 Pom-eroy, Eq. sec. 1407. Defendant had a right to dissolve the partnership, it being for no definite time. 2 Lindley, Partn. 570-2; Story, Partn. 271-2.</p>

<p>APPEAL from the Circuit Court for Sheboygan County.</p> <p>Tbe following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>Tbe complaint alleges, in effect, that tbe plaintiffs are tenants in common and owners in fee-simple of tbe lands described therein; that tbe first four parties named are the heirs at law of W. W. Gilman, deceased, and, as such heirs, are tbe owners in fee-simple of one third of tbe said land; that tbe plaintiff railway company is owner in fee-simple of tbe other two thirds of said land; that for tbe purposes of taxation for tbe years 1886, 1887, and 1888, tbe assessors of tbe city of Sheboygan, in said county, assessed all the interests of tbe first four plaintiffs to their intestate, W. ~W. Gilman, and that tbe taxes for said several years were properly carried out in tbe tax rolls, and were fully paid by tbe intestate, bis agent, or the said plaintiffs; that said assessors, for tbe same years, wrongfully entered, as for assessment or taxation, on said assessment rolls, a piece of land, describing it as being embraced within the description of tbe former tract so owned by tbe plaintiffs as such tenants in common, and that tbe same was wrongfully assessed to one George Grob as owner; that tbe same was so wrongfully carried into tbe tax rolls for said years, and placed in tbe bands of tbe treasurer for collection, and returned by him as unpaid, and were thereupon advertised for tax sale, and sold at tax sales for said years, respectively, to tbe defendant Detling, who is not otherwise interested than as such purchaser; that all of such proceedings were wholly without the knowledge of the plaintiffs. Said complaint contained other suitable allegations, and prayed, in effect, that said assessments to said Groh, and the tax sales so made thereon, be declared void, and that the tax certificates issued thereon be respectively declared void, and adjudged to be delivered up for cancellation, and cancelled; that said county and its clerk be perpetually enjoined from issuing-tax deeds on any of said tax certificates, and for a temporary injunction against the same, and for costs.</p> <p>The. defendants answered, and in effect conceded said double assessment. Thereupon the defendants moved the court, upon affidavits and certain other pleadings in another action referred to, for an order directing that George M. Groh and others, claiming to be the owners of said premises, be made defendants in this action, on the ground that they disputed the plaintiffs’ title; and upon hearing said motion it was ordered by the court, May 27, 1890, that the same be and was thereby denied, with $10 costs, to be paid by the defendants to the plaintiffs. At the same time the defendants moved said court, upon affidavits, for a stay of proceedings in this action until a certain action of ejectment brought by these plaintiffs against George M. Groh and others has determined who is the rightful owner of the lands described in said tax certificates, and, after hearing counsel for the respective parties, it was ordered by the court on May 27, 1890, that said motion be, and the same was, thereby denied. From each and both of said orders the defendant county brings this appeal.</p> <p>To the point that to maintain the action the plaintiffs must show legal title, which they could not do until the determination of the action involving that question, and a stay should have been granted, they cited sec. 3187, R. S.; Manning v. Ready, 61 "Wis. 630; Stridde v. Saroni, 21 id. 173; Gillett i). Tregama, 13 id. 472. To tbe point that the other claimants of the land should have been made parties because the trial involves a determination of the title between them and plaintiffs, they cited Pomeroy’s Rem. sec. 412; 1 Wait’s Pr. 161; Siegel v. Outagamis Go. 26 Wis. 70; Watkins v. Milwaukee, 52 id. 98; Ropkins v. Gilman, 47 id. 590; Gainey v. Gleissner, 62 id. 493; Sh'ove v. Shove, 69 id. 429; Wilde v. Pasehen, 67 id. 95.</p>

Croix County. The following statement of the case was prepared by Mr. Justice Tatlok as a part of the opinion: This action was commenced by the appellant against the bank to recover the possession' of certain bonds and mortgages which had been given to said association upon loans made by said association to different persons. The action was replevin, and the bonds and mortgages were taken from the possession of the bank.

The defendants demurred to the complaint, and appeal from an order overruling their demurrer. The case is sufficiently stated in the opinion. Among other things, they argued that the assessment was unequal and void; and that the Illinois court, in respect to assessments,, merely took the place of the directors, and could only make a pro rata assessment. Ha/wloins v. Qlerm, 131 TJ.

<p>APPEAL from the Superior Court of Ifilwcmlcee County.</p> <p>The appeal is from an order overruling defendant’s demurrer to the complaint.</p>

Action to foreclose a lien for machinery furnished by plaintiff to defendants, and by them used in the erection of a mill. The defendants, by way of counterclaim, sought to recoup damages sustained by reason of such machinery not having been furnished within the time agreed, and of its imperfect and defective character, and also to recover for certain property left with plaintiff to be disposed of for them, and never accounted for.

The action is to recover damages for alleged breaches of the covenants against incumbrances, of seisin and of general warranty, in a deed of land executed by defendant to plaintiff. The deed is in the statutory form of a warranty deed (E. S. sec. 2208), and was executed December 10,1883. The land conveyed by it was vacant and unoccupied. The plaintiff paid the taxes assessed thereon in the years 1883 to 1886, inclusive, amounting in all to $9.74.

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

<p>Town, liability to county for repairing bridge. Town' Cleek, duty of. Mandamus.</p> <p>When, upon the refusal of a town to repair a bridge therein, an appeal is taken to the co.unty board, and that board causes such bridge to be repaired or rebuilt, allows the account therefor, and the amount is charged to the town, and added to the next county tax apportioned thereto, in pursuance of the provisions of sec. 1338, R. S., it is made the express duty of the town clerk (sec. 1079, R. S.) to enter the same in the tax roll; and if he refuses to do so, the proper remedy is by mandamus to compel him to perform that duty. The county cannot maintain an action against the town to recover the amount, as upon an implied assumpsit.</p>

<p>APPEAL from the Circuit Court for Portage County.</p> <p>The following statement of the case was prepared by Mr. Justice Cassoday:</p> <p>This action was commenced March 6, 1888, in justice’s court, to recover $67.30 and interest, for work and labor alleged to have been performed by the plaintiff for the defendant, at his request, between' December 4, 1881, and April 6, 1882. The answer of the defendant was a general denial. Upon the trial in the justice’s court a judgment was rendered against the plaintiff, and in favor of the defendant. Thereupon the parties entered into a stipulation to the effect that the testimony of the plaintiff taken in the justice’s court might be used as his deposition in the circuit court, he having moved to the state of Washington. Upon a retrial in the circuit court, March 27, 1890, a verdict was rendered in favor of the plaintiff and against the defendant for $96.80. Upon the judgment entered upon that verdict the defendant appeals.</p> <p>They contended that the testimony excluded by the court, aside from its impeaching character, was in the nature of admissions by the plaintiff against his own interest, and therefore admissible without first laying any foundation for impeachment.</p> <p>They argued that the testimony was properly excluded, not only for want of a foundation for impeachment, but because it was not contradictory of any fact testified to by the witness.</p>

<p>APPEAL from the Circuit Court for Portage County.</p> <p>The defendants appeal from an order denying their motion for a change of the place of trial, on the ground that an impartial trial could not be had because of the prejudice and hostility of the people of Portage county.</p> <p>By stipulation, fourteen other similar cases were to abide the decision herein. The case sufficiently appears in the opinion.</p> <p>They contended that the facts stated in the affidavits supporting the motion made a very strong case of “ reason to believe ” that an impartial trial could not be had in Portage county, which was all that the statute required; and also that the circuit judge was bound to exercise a sound legal discretion in the matter.</p> <p>To the point that the court must be satisfied by evidence of facts and circumstances that prejudice exists, they cited Rowan v. State, 30 Wis. 129-134; Frmih v. Avery, 21 id. 166; Ross v. Hanehett, 50 id. 491; Pa/rhs v. Wis. Gent. R. Go. 33 id. 413.</p>

<p> Appealable order: Contract of indemnity: Parties: Pleading. </p> <p>1. Although a motion to strike out a demurrer was noticed to he heard before the judge at chambers, yet an order made thereon which reads, “ The court having heard the argument of the counsel of the respective parties, it is ordered that said demurrer be, and the same is hereby, stricken from the files in this action,” will be deemed to have been made upon a hearing by the court, and be held appeal-able.</p> <p>3. A contract between stockholders of a company, by which each signer “ agrees with all the others, and each with such stockholders ” as now are or shall become liable upon the company’s paper as in-dorsers or otherwise, “that each of said parties will so indemnify, protect and save harmless such stockholders,” so liable or becoming liable on such paper, “in proportion of each of said stockholder’s ownership of said stock, and to that end will, upon the demand of any one or more of said stockholders who shall be called upon as indorsers to pay such paper, contribute toward the payment thereof such sum as such party ought to contribute in proportion to the stock held by him,” is to be construed as several, as respects each of the parties thereto; and any one of them who has a several valid claim under it against any other party liable thereon may maintain a separate action upon it against the party so liable, without joining the others.</p> <p>3. Such contract is one merely to indemnify against loss or damage by reason of liability as indorser, and not one to indemnify against liability as such, and there is no breach, and no action can be maintained thereon, until the plaintiff has paid something or suffered some loss or damage by reason of his indorsement.</p> <p>A A delivery of such contract by one who has signed it to another of them is a consent that it shall be binding upon him, although it is not executed by all who are named therein as parties.</p> <p>5. An allegation in a complaint upon such contract that the defendant, for a good and valuable consideration, executed and delivered the same to the plaintiff, shows that it was fully executed so far as the defendant is concerned.</p> <p>6. Such contract is not one for the payment of money only, within the meaning of sec. 3675, R. S., and it is not sufficient for the plaintiff to give a copy thereof in his complaint, and state how much is due thereon.</p> <p>7. A complaint on such contract must allege some payment ¿hade by plaintiff, or some loss or damage suffered by him by reason of his indorsements.</p>

<p> Appeal, what considered: Contract to indemnify. </p> <p>1. Upon appeal from an order overruling a demurrer to an amended complaint, the supreme court cannot go back of. the pleading demurred to in order to inquire whether it is regslardy in the case.</p> <p>2. A contract between stockholders of a company, by which each agrees-'with the others to indemnify such of the stockholders as then were or should thereafter become liable on the company’s paper “by in-dorsement or otherwise,” binds them to indemnify any stockholder who has become liable, in any of the modes known to the law, to pay the obligations of the company, and has paid them, although the words “or otherwise” are omitted from other portions of the contract where “indorser” is mentioned. Taylor v. Coon, ante, p. 76, followed.</p>

<p>APPEAL from tbe Circuit Court for St. Groix County.</p> <p>•The case is sufficiently stated in the opinion.</p> <p>Among other things, they contended that the railroad company had the right to determine for itself what particular land should be taken, and that the court could only decide upon the necessity of taking land for the purpose specified,— the suitability of the laud pi^iosed, and the quantity required, but had no right to say that a particular tract should not be taken, on the ground that it would impair the value of the premises and .interfere with their present use and contemplated improvements, and would therefore be unreasonable and oppressive. Stockton <& D. B. Go. v. Brown, 9 H. L. Cas. 246; Deitrichs v. L. c& K. W. B. Go. 14 Neb. 361; Ford v. G. <& K. W. B. Go. 14 Wis. 609; Fldridge v. Smith, 34 Yt. 495; Hill v. West. Vt. B. Go. 32 id. 77; Goto. F. B. Go. v. IT. B. B. Go. 41 Eed. Rep. 299; Chicago <£> W. I. Go. v. Dunbar, 100 Ill. 112; Pierce, Railroads, 146-148; So. Chicago B. B. Go. v. Dix, 109 Ill. 244; Forney v. F, F. <& M. Val. B. Go. 33 Am. & Eng. R. Cas. 162, and note; Mobile c& G. B. Go. v. Ala. Mid. B. Go. 87 Ala. 501; Wood’s Ry. Law, 606;. State v. Baggy), 39 Minn. 65. They also argued that it was error to allow costs to the respondent, citing numerous cases.</p> <p>Upon the point that costs were properly allowed to respondent, they cited Cornish v. M, L. 8. <& W. B. Go. 60 Wis. 476; Aldrich v. Providence, 15 R. I. 570.</p>

<p>APPEAL from tbe Circuit Court for Eau Glaive County,</p> <p>Tbe case fully appears in. tbe opinion.</p> <p>contended, among other things, that if tbe ordinance of March 7, 1889, was void because passed on tbe same day it was introduced, it became valid by an amendment passed after tbe section of the. charter requiring an interval of fourteen days bad been repealed. Tbe charter does not absolutely require tbe grading to be done at tbe expense of abutting lots, but subd. 7, sec. 3, cb. 4, of both tbe charter of 1872, and that of 1889, authorizes tbe common council to provide for grading, etc., streets, without imposing any conditions or, restrictions. This view is sustained by Allen v. Janesville, 35 Wis. 403; and Hall v. Ghipjpewa Falls, 47 id. 267, is entirely consistent with it. Tbe provisions of tbe charter relative to charging tbe expense of grading streets to abutting lands must therefore be construed as permissive only. Tbe power to change the grade of streets, given by the charter, is also absolute.</p> <p>To the point that a law conferring authority upon a city to destroy private property must be strictly followed, otherwise the city will be liable in damages, they cited Kneelcmd v. Milwaukee, 18 Wis. 411; Feeder v. Lima, 19 id. 291; Dore v. Milwaukee>, 42 id. 108; Addy v. Janesville, 70 id. 401, and cases cited by the court. The ordinance of March 7 was void. In re Douglass, 46 N. Y. 42; 1 Dillon, Mun. Corp. sec. 809; Myrioh v.La Grosse, 17 Wis. 442. And it neither was nor could be ratified or made valid by the slight amendment of June 13, 1889. Hydes v. Joyes, 4 Bush. 464; Mayor do G. O. of Baltimore v. Porter, 18 Md. 284.</p>

<p>APPEAL from the Circuit Court for Pierce County.</p> <p>The case is sufficiently stated in the opinion. It was submitted upon briefs for the respective parties.</p> <p>because issued in an action ex delicto, against a resident defendant, and that the bond was not voluntary, but in invitum compulsory, and fell with the attachment, citing sec. 3781, R. S.; 1 Am. Encycl. 895; PMlspot v. JVewman, 11 Neb. 299; Read v. Beach, 2 Pin. 27; Elliott v. Jackson, 3 Wis. 654; Waples, Attachm. 73, 408; Goodyear Rubber Go. p. Knapp, 61 Wis. 104; Homan v. Brinkerhoff, 1 Denio, 184; Vose v. Cockcroft, 44 N. Y. 420; Shevlin v. Whelen, 41 Wis. 93; Gadwell p. Colgate, 7 Barb. 253. They also claimed that the total liability assumed by the defendants was not to exceed $250.</p> <p>by the execution of the undertaking, were estopped from disputing the validity of the attachment. Ip,mam, v. Strattan, 4 Bush, 445; Hazelrigg p. Donaldson, 2 Met. (Ky.), 445; 2 Wait, Pr. 190; Delaney v. Brett, 1 Abb. Pr. (N. S.), 421; S. C. 4 Eob. (N. Y.), 712; Drake, Attaohm. § 519; Cnvyt v. Phillips, 16 Haw. Pr. 120; Dunn v. Qrocker, 22 lad. 324; Drake, Attaohm. (6th ed.), § 318, note 3; New Haven I. Go. v. Raymond, 76 Iowa, 225; Coleman v. Bean, 32 How. Pr. 370; 42 N. Y. 94, affirming 14 Abb. Pr. 38; Onderdonk v. Voorhis, 2 Eob. (N. Y.), 24; Bildersee v. Aden, 62 Barb. 175; McMillan v. Dana, 18 Cal. 339; Bacon v. Daniels, 116 Mass. 474; Bird-sail v. Wheeler, 58 Conn. 429; Gardner v. Donnelly, 86 Cal. 367; 1 Am. & Eng. Ency. of Law, 924, and cases cited; Barnes v. Webster, 16 Mo. 258; Wright v. Keyes, 103 Pa. St. 567; Fergusonv. GUdewell, 48 Ark. 195; Haggart v. Morgan, 5 N. Y. 422; Payne v. Snell, 3 Mo. 409; Paddock v. Matthews, 3 Mich. 18; Kennedy v. Morrison, 31 Tex. 207; En-dress v. Ent, 18 Kan. 236; People v. Cameron, 7 Ill. 468; Bunneman v. Wagner, 16 Oregon, 433; Central Mitts Co. v. Stewart, 133 Mass. 462; Kelly v. McCormick, 28 N. Y. 322; Cunningham v. Jacobs, 120 Ind. 306; Fox v. Mackenzie (N. D.), 47 N. W. Eep. 386; Carpenter v. Turrell, 100 Mass. 450; Ilill v. Harding, 93 Ill. 80; Love v. Rockwell, 1 Wis. 382.</p>

<p> Land brolcer: Commissions: Estoppel. </p> <p>1. Where an owner of lands, who had given to C. an option for the purchase thereof, employed A. as an agent to sell them for him on commission, and he employed B. as a sub-agent, and B. associated M. with himself on shares; and C. having surrendered his option before it expired, and M. having found a customer who desired an option and having reported that fact to A. though he had forgotten the name, thereupon A. inserted the name of M. in the place of C. in one place in the surrendered option, leaving that of C. in the other places, and gave it to him for use with his customer, but it was not used; and his customer on learning who was the owner, bought the land from him, and the latter paid to A. the agreed commission. Feld, in an action by B. against A. to recover his share of the commission, that such taking of the option by M. in his own name did not change his position from that of an agent for selling to that of an intending purchaser, so as to estop him from claiming his share of the commission.</p> <p>2. Though M. violated the instructions given by the owner to A. by asking a greater price than was fixed by him, yet, the owner having waived any objection on that account by voluntarily paying the agreed commission to A., that fact did not estop B. from claiming his share thereof.</p>

<p> False representations: Special verdict. </p> <p>1. A judgment for the defendant, in an action by a grantee of mortgaged land, to recover back from the mortgagee the amount paid by him to discharge the mortgage, on the ground that he-was induced to pay it by false representations of the defendant that such mortgage was a valid lien on the land, will not be reversed on appeal, merely because, among the questions submitted to the jury for a special verdict, there was none as to whether the defendant made the false representations alleged at the time the plaintiff paid the mortgage, in order to induce him to pay it; where the jury found that the mortgage was duly and voluntarily executed by the mortgagor, without any fraudulent intent, and that no fraud was practiced by defendant in obtaining it, and the evidence shows that defendant did not make any false representations to induce payment, and that plaintiff knew what the mortgage was given for when he paid it.</p> <p>2. The failure of the jury to answer some of the questions submitted to them for a special verdict does not render their verdict insufficient to sustain the judgment, unless answers thereto favorable to the defeated party would necessarily render such judgment erroneous.</p>

<p>City: Liability for fiowage of lands: Damages: Waiver.</p> <p>1. A city cannot justify the submerging and destruction of valuable farms on the ground that the works causing the injury were constructed under an act of the legislature specially intended for their protection from floods.</p> <p>2. The city of Portage, being authorized by ch. 213, Laws of .1873, to construct a levee along the south bank of the Wisconsin river, for the purpose of reclaiming the lands subject to overflow and protecting the highways, built a levee along that bank across the northerly half of plaintiff’s land abutting on the river, where the banks were high, thereby closing several natural channels through which in times of freshets the high water had been accustomed to escape and pass into the Baraboo river, and confining it to a much narrower channel, but refused to extend such levee along that portion of his farm where the banks were low, though frequently warned by him of the danger of an overflow thereof if it was not extended, and urged to extend it Held, that the city was liable to him for the damages caused by the compressed and accumulated waters of the river overflowing such low banks upon his land in time of freshet.</p> <p>3. The plaintiff did not waive his right to such damages, and is not estopped from claiming them, by his having favored the work and offered to give the right of way for the levee, or by his afterward refusing to give such right of way until the levee was extended so as to protect his low lands.</p> <p>4. The building of a levee for the protection of plaintiff’s low lands being made necessary by the action of the city in building one along the upper portion of his farm and refusing to extend it, he has a right to do the work, and to prove what it will cost to do it and recover the same as a part of his damages.</p>

<p> Conspiracy, evidence of: Comments by counsel. </p> <p>1. Where, in an action for a conspiracy, the complaint charged one of the defendants with an assault upon the plaintiff with intent to commit a rape; and all of them with a conspiracy to injure and defame her and destroy her character and business, by causing an inquisition of lunacy to be instituted against her, especially for the purpose of destroying and invalidating her testimony against her assailant in a criminal prosecution commenced against him by her; evidence of the assault by such defendant, and of her having sworn out a warrant against him, and of his having left the state before it was served upon him, is admissible on the part of the plaintiff, as tending to prove one of the alleged objects of the conspiracy.</p> <p>2. Evidence of what one defendant had heard other people remark about the appearance or sanity of the plaintiff nearly a year before such defendant instituted the proceeding in lunacy is not admissible for the defendants, as it does not tend to disprove the conspiracy or to justify the acts of the defendants.</p> <p>3. Evidence that one of the defendants committed an assault upon the plaintiff with intent to rape, — that his relatives and friends communicated with him while absent from the state, and that the inquisition of lunacy was instituted by the latter, held sufficient to sustain a verdict for the plaintiff.</p> <p>4 That counsel for the plaintiff stated in his opening that the case had been to the supreme court, or that he was allowed to comment upon the alleged assault by such defendant, and the attempt to arrest him, which the evidence tended to prove, is not sufficient ground for reversing the judgment.</p>

<p>APPEAL from the Circuit Court for Juneau County.</p> <p>The case is fully stated, iu the opiniou.</p> <p>contended, among other things, that the complaint did not set out the material circumstances of the fire with sufficient particularity to render evidence thereof admissible, citing Milw. <& St. P. Ii. Go. v. Kellogg, 94 U. S. 256; Atkinson,<o. Goodrich Transp. Go. 60 Wis. 157; Patterson v. 0. <& G. T. R. Go. 8 Am. & Eng. Ry. Cases, 123; Pittsburg, G. <& St. L. R. Go. v. Culver, 60 Ind. 469; Case v. Hobart, 25 Wis. 654; Pittsburg, O. <£¡ St. L. R. Go. v. Hixon, 8 Am. & Eng. Ry. Cases, 717.</p> <p>argued, among other things, that the demurrer being ore tenus, the complaint must be liberally construed; that it does set out the material facts with sufficient particularity, and the defendant was not taken by surprise. Fliwn v. S. F. <& S. J. R. Go. 6 Am. Rep. 597. The railroad company was guilty of negligence, in suffering combustible material to accumulate upon its right of way; and whether or not "that negligence was the proximate cause of the damage was purely a question of fact for the jury, and was decided by them. 2 Rorer on Railroads, Y94;' Kellogg v. O. d> K. W. B. Go. 26 Wis. 228; Juelcer v. O. dé JV. W. B. Go. 52 id. 15Q; Del., Laelc. dé W. B. Go. v. Salmon, 39 N. J. Law, 308; Johnson v. G., M. dé St. P. B. Go. 31 Minn. 51; Bishop, Non-contract Law, 456.</p>

<p> Reformation of mortgage to include homestead: Note by married woman. </p> <p>1. If a mortgage given by husband and wife, and intended to cover their homestead, by mistake describes a different tract of land, it cannot be reformed, in an action for that purpose after the death of the husband, so as to cover the homestead, even with the consent of the widow, who has continued to live therein. Her consent to such reformation is not equivalent to her signing a mortgage of the homestead, required by sec. 2203, R. S., in order to make it valid.</p> <p>2. Although the note secured by such mortgage is signed by both husband and wife, yet, if given for supplies for the support of the family, it is the debt of the husband alone, and not binding upon the wife, in the absence of proof that she had a separate estate</p>

The case is fully stated in the opinion. They argued that the property was taxable where the owners resided in this state, otherwise ch. 258, Laws of 1882, fixing the place of taxing such property belonging to nonresidents, was unnecessary. This property was not “ merchants’ goods,” nor was it kept for sale in Shawano county.

The following statement of the case was prepared by Mr. Justice Cassoday: The amended complaint alleges, in effect, that November 11, 1886, and for some years prior thereto, the territory embraced in the town of Vilas constituted and was a part of the town of Aeltley in the county of Langlade; that November 11, 1886, the county board of that county, at a regular meeting thereof, passed an ordinance whereby township 32 was detached and separated from said Acldey, and…

Tbe case sufficiently appears in tbe opinion. contended that tbe allegation in tbe complaint that tbe execution was returned wholly unsatisfied was insufficient to show that plaintiff bad exhausted bis remedy at law, and to give a court of equity jurisdiction. For that purpose a return of nulla bona was necessary. MeDowell v. OlaPlt,, 68 N. C. 118; 2 Ereeman, Executions, § 456; Marston v. Presen, 76 Wis. 418; Lee <o. Lee, 77 Ind. 251; Platt v. Mead, 9 Fed. Eep. 91.

The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion: The plaintiff was convicted of the crime of burglary committed in the city of Ashland, in the county of Ashland.

<p> Criminal law: Manslaughter: Instructions and evidence. </p> <p>1. On writ of error to reverse a conviction of manslaughter in the third degree, held that, in the absence of any request to instruct the jury as to manslaughter in the fourth degree, the failure of the court to-do so, after defining manslaughter in the second and third degrees, and instructing them that the defendant was guilty in one of those two degrees, if guilty at all, was not error,</p> <p>2. It is within the discretion of the trial court to overrule a motion for a new trial without hearing argument, where it does not refuse to hear it, especially where the proof of defendant’s guilt is overwhelming.</p> <p>3. Where, upon a trial for manslaughter, the defendant does not claim to have acted in self-defense, but absolutely denies the killing, evidence of the reputation of the deceased for lawlessness, violence, and recklessness, would be impertinent, and may properly be excluded.</p> <p>4. Testimony by the defendant as to the several places he visited after the homicide, offered for the purpose of rebutting any presumption that he fled from justice or kept out of the way, held properly excluded as being irrelevant, incompetent, and unnecessary, since he could have testified directly as to whether he fled or kept out of the way.</p>

<p>CONTRACT: Remedies for breach: Fraud as a defense. Pleading: Counterclaim or defense.</p> <p>1. Where a purchase of property is induced by fraud and false representations, the purchaser may elect to rescind the contract because of the fraud, offer to return the property, and demand a return of the money and notes given in execution thereof; or he may counterclaim his damages for such fraud in an action by the vendor for the price; or he may pay the stipulated consideration and sue the vendor for his damages.</p> <p>2. Fraud and false representations on the part of a vendor of patent rights and machines made under them, which are worthless, inducing the purchase, are sufficient grounds for a rescission ef the contract, and, while such contract remains entirely executory, may be a complete defense to an action by the vendor for non-performance; but after the contract has been fully executed, if the patents are of any value whatever, even gross fraud will not defeat an action for the purchase price, nor will it reduce the recovery unless properly pleaded in that view.</p> <p>8. The fact that the purchaser gave to the vendor a chattel mortgage on the property, which he still retains, does not render an offer to reassign or reconvey imnecessary to a rescission.</p> <p>4. An answer, in an action upon a promissory note given for the purchase money of patent-rights and machines made under them, which alleges that such machines were wholly impracticable, unfit for use and worthless, and that the purchase thereof by defendant was induced by false and fraudulent representations of plaintiff, but does not allege any facts showing a rescission of the contract by defendant, or entitling him to have a rescission adjudged, nor specify the damages caused by such fraud, though it does demand judgment for the sums paid on account of the purchase, must he construed as setting- up the defense of total failure of consideration, and not a partial failure thereof, or a counterclaim.</p> <p>5. In order to entitle the defendant to rescission or the relief asked in such answer, it should allege an offer, or a readiness, to return the property purchased to the plaintiff, or, instead thereof, a notice to plaintiff that defendant elected to rescind, and a denial by the plaintiff of his right to do so.</p>

<p>APPEAL from the Circuit Court for Saule County.</p> <p>The case fully appears in the opinion.</p>

The case is sufficiently stated in the opinion. To the point that a nonsuit ought to have been granted, the facts conclusively showing contributory negligence on the part of the child, they cited Iloth v. Peters, 55 Wis. 405; Merchants’ Banh v. State Banh, 15 Wall. 604; Pleasants v. Pant, 22 id. 116; Hubert v. Butler, 91 U. S. 319; Griggs v. Houston, 104 id. 553; Schofield v. Bcdlway Go. 114 id. 615.

<p> Tase titles: Statute of limitations. </p> <p>After the statute of limitations has run in favor of tax deeds, evidence of mere irregularities in levying the taxes, making the sales, or issuing the tax deeds is inadmissible to suppoi't the title of an adverse claimant, they being cured by that statute.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This is an action of quo warranto to try the title to the… Held: was the place designated by law, hut, if not, the irregularity not having been brought about by any fraud or unlawful practices, does not vitiate the appellant’s election, they cited Dale v. Irwin, 78 Ill. 180; Minor v. Kidder, 43 Cal. 237; Sprague v. Norway, 31 id. 173; Stemper v. Higgins, 38 Minn. 222; Fa/rri/ngton v. Tu/rner, 53…

<p> Deed: Construction of exception: Foreclosure: Practice: Parol evidence; Costs. </p> <p>1. A deed of the “west half of the southwest quarter” of a certain section of land, “ except one acre from the southeast comer, . . . together with the buildings thereon,” must be construed with reference to the circumstances of the transaction, the situation of the parties, the state of the property, and the location of the dwelling-house and other buildings, and of the highway passing the same, so as tó secure to the grantor the parcel intended by the parties.</p> <p>3. A person made defendant in a foreclosure action as claiming some lien or interest in the mortgaged premises subsequent to the mortgage, may by answer set up a paramount claim, and is entitled to have that claim tried and adjudged in that action, unless the plaintiff discontinues his action as against such party.</p> <p>8. In an action to foreclose a mortgage, wherein the grantor of the mortgagor is made a party defendant, as claiming some lien or interest subsequent to the mortgage, and answers, setting up a paramount claim to “ one acre from the southeast comer, ... together with the buildings thereon,” excepted out of the land conveyed by her to the mortgagor, parol evidence is admissible in her behalf to locate and identify the parcel intended to be excepted. The rule that the land called for by such a description must be taken in a square form, does not apply, where a latent ambiguity is created by a reference to other objects than mere locality.</p> <p>4 It is not an abuse of discretion in such action, where the lolaintiff, having notice of such defendant’s rights, contests and compels her to establish them by proof, for the court to award her costs.</p>

<p>APPEAL from the Circuit Court for Chippewa County.</p> <p>The case sufficiently appears from the opinion.</p> <p>Among other things, they contended that the opinion of a witness as to the limits of the “ depot grounds ” was improperly admitted. Fowler v. Farmers’ L. <& T. Co. 21 Wis. 77. The instruction as to what constituted “ depot grounds ” was misleading, in that it restricted them to the place used jointly by the public and the railroad company, and excluded grounds necessary, convenient, and actually used for handling freight, switching cars, and supplying water. Peters v. Stewart, 72 Wis. 133; McGrath v. D., M. dé M. JR. Co. 57 Mich. 555. A railroad company is not required to •fence its road where fences would endanger its employees, or interfere with, its own rights in operating its road or transacting its business, or with the rights of the public in doing business with the company. Evansville & T. H. B. Go. v. Willis, 93 Ind. 507; -Ind., B. da W. B. Go. v. Quicle, 109 id. 295; Cleveland, O. O. do I B. Go. v. Ffewbrander, 11 A. & E. R. Cases, 480; Antisdel v. 0. da BF. W. B. Go. 26 Wis. 150. It was error to permit plaintiff to testify as to the value of his cattle. Bonesteel v. Orvis, 22 Wis. 522.</p> <p>contended, inter alia, that a witness who has dealt in cattle for twenty years may give his opinion of the value of that class of property. 1 Suth. Dam. 798; McDonald v. Christie, 42 Barb. ,36; Has-Icell v. Mitchell, 53 Me. 468; Vandvne v. Burpee, 13 Met. 288; Ohio da Miss. B. Go. v. Irvm, 27 Ill. 178; Betz v. Mitmel (Pa.), 13 Atl. Rep. 938; Texas da P. B. Go. v. Virginia Banch, L. do O. Go. (Tex.), 7 S. W. Rep. 341; Patch v. Boston, 146 Mass. 55; La Fayette v. Nagle, 113 Ind. 425.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This action, was originally brought by the plaintiff to compel the specific performance of a land contract.

<p>APPEAL from the Circuit Court for Douglas County.</p> <p>This is an action to enforce liens upon certain lots in the city of Superior for the price of labor performed, and materials furnished by the plaintiffs as subcontractors in the erection of certain buildings upon said lots.</p> <p>The lots were held by the defendants W. B. and J. L. BanJcs under a contract for the purchase of the same and othdr lots of the defendant, the Land dk Rimer Imjoroveinent Company, which holds the legal title thereto. On March 28, 1889, the Banks entered into a contract with the defendant Maynard, in and by which Maynard agreed to erect on the lots so purchased by the Banks twenty-five frame dwellings, according to certain plans and specifications, and to furnish the material therefor. Three of said dwellings were to be erected upon the lots upon which the liens are claimed. The work was to be completed August 1,1889. The Banks were to pay Maynard therefor $16,825, of which eighty per cent, was to be paid on estimates as the work progressed, and the remaining twenty per cent, when the work should be completed, and proof furnished that there were no liens against the lots for work and materials. On April 18,1889, Maynard executed to the Bemits a bond with sureties, indemnifying the latter from loss suffered by reason of the failure of Maynard to perform the agreement on his part, and particularly against liens of subcontractors.</p> <p>Maynard abandoned the work early in August, but at that time the buildings were so nearly completed that the Banks completed the same at an expense of about $100. When the buildings were thus completed, the Banks had paid Maynard (including the cost of completing them after Maynard abandoned the work) $12,857.30, leaving an unpaid balance due Maynard of $3,967.70.</p> <p>The plaintiffs were subcontractors under contracts with Maynard, and furnished materials used in the erection of the three buildings above mentioned, and performed labor for him on such buildings. Their claims therefor aggregate something over $350. This action is to enforce liens for such claims. Other subcontractors filed petitions for liens on the remainder of the twenty-five buildings and the lots upon which they were erected. These claims aggregate over $2,200. • Maynard was also indebted to Edwards & McCulloch Lumber Company about $4,000 for materials used in the buildings. That company did not institute lien proceedings.</p> <p>August 3, 1889, Maynard assigned the unpaid balance of the contract price for the buildings to Edwards & McCul-loch Company, and on August 7th that company gave due notice of such assignment to the Banks. When such notice was given, no notice of any claim for a lien had been served upon the Banks or thé Bcmd c& River Improvement Company. The Banks afterwards paid such balance to the Edwards & McCulloch Company. Before such payment was made the latter company gave the Banks a bond indemnifying them against liens of subcontractors. When the payment was made, the Banks knew that the claims here in suit existed and were unpaid. The facts above stated appear from the complaint, the answer of the Banks, a stipulation of facts, the testimony given on the trial, and the findings of fact by the court. The conclusions of law are, in substance, that when notices of the lien claims of the plaintiffs were served on the Banks they were not indebted to Maynard; that the contract between the Banks and Maynard is governed by the statutes as they existed prior to the enactment of ch. 333, Laws of 1889, and hence that plaintiffs were not entitled to the liens claimed, but ’were only entitled to personal judgments against Maynard for the amount of their respective claims. Judgment was thereupon entered, dismissing the action as to the Berniks and-the Lamd <& River Improvement Compcony, with costs. The plaintiffs appeal from such judgment.</p> <p>They contended that the rights of the subcontractors are fixed by ch. 333, Laws of 1889, and their notices given in compliance therewith, and were not cut off by payment to the assignees of the contractor. ’White v. Miller, 18 Pa. St. 54; Lawd v. Hooncm, 32 Minn. 558; Colter v. Frese, 45 Ind. 103; Ward v. Kelly, I Mo. App. 565. Especially when the owner knew or might have known of their rights to liens. Jones, Liens, sec. 1290; Andrews v. Burdick, 62 Iowa, 714; Winter v. Hudson, 54 id. 336; Othmer v. Clifton, 69 id. 656; Bacas Co. v. Roberts, 49 id. 159; Havighorst v. Lindberg, 67 Ill. 463; Gilchrist v. Anderson, 59 Iowa, 274; Martin v. Mor-gem, 64 id. 270; Fay v. Orison, 60 id. 136; Cutler v. McCormick, 48 id. 406; Brooks v. Railway Co. 101 U. S. 443; Chicago L. Co. v. Woodside, 11 Iowa, 359. The facts in respect to the assignment show it to have been made in bad faith and in fraud of the rights of the subcontractors. The act of 1889 is constitutional, and applies to this case, as the claims of the subcontractors all originated after that act went into effect. Jones, Liens, sec. 1301; Bohn v. McCarthy, 29 Minn. 23; O'Neil -v. St. Olaf School, 26 id. 329; Parker v. Bell, 1 G-ray, 129. The change in the lien law did not impair the obligation of the contract between the parties, but merely provided a new and more efficacious remedy. Cooley, Const. Lim. 315; McCracken v, Haywa/rd, 2 How: 612; Doe v. Monson, 33 Me. 132; Colpetzer v. Trinity Church, 21 Neb. 113; Von Baumbach v. Bade, 9"Wis. 559; Shepard v. Steele, 13 N. Y. 52; Atwood v. Williams, 10 Me. 109.</p>

<p> Partnership: Ratification of unauthorized contract. </p> <p>L. <?., one of a company consisting of himself, R. and N., sold a new buggy to A. and took from him an old one in part payment, and agreed that the balance of the price should apply on his private debt to A., and the company received and retained the old buggy; and subsequently A., not being satisfied with his purchase, returned the new buggy to JR., informing him of the arrangement with L. G., and jR., making no objection thereto, exchanged the buggy. Afterward N. sold out all his interest in the firm to B. Held, that the act of L. G. was ratified by B., and that, after such transfer by N., his assent thereto was not material nor necessary to make it binding upon the firm or its assignee.</p>

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

<p> Appeal: What maybe reviewed: Practice: Fraud a question foi' the jury. </p> <p>1. A direction by the trial court that the jury find for the defendant, if made a part of the verdict, and without objection embodied in the bill of exceptions, may be reviewed upon appeal, though it was not excepted to.</p> <p>2. In an action by a mortgagee of part of a stock of goods against an officer, for levying thereon as the property of the mortgagor, where the evidence showed that the mortgagor was the plaintiff’s father-in-law, that the goods were kept in his store, where he continued to do business as a merchant, but did not show that he did sell those goods, or that plaintiff had agreed that he might do so, nor conclusively what the agreement between them was, held, that the question whether the mortgage was fraudulent was one for the jury, and the court erred in directing a verdict for the defendant.</p>

<p> Mortgage: Power of attorney. </p> <p>1. A power of attorney executed by C. A. D., a married woman, constitutes N. D., her husband, and three other persons named, her “attorney and attorneys in fact and in law,” and gives “my said attorney and attorneys ” power, among other things, “ to mortgage for any purpose” any or all my lands, and “for me and in my name” to execute, etc., mortgages, and empowers “my said attorney or attorneys to borrow money for me and in my name,” and to execute and deliver all proper “ conveyances for any such purpose,” and further authorizes and empowers her “said attorney N. D. or J. 0. Gr., or either, whenever he shall do so, to elect for me and in my name to borrow money, and, to secure the payment thereof, to mortgage my residence and homestead property in the city of M.,” and closes by generally granting unto her “said attorney or attorneys, or either of them,” full power to act “ jointly and severally,” and gives to N. D. as her attorney full power as to any of her lands wherever situated. Held, that an equitable mortgage of some of her lands given in her name is not invalid because executed by N. D. alone, as her attorney in fact.</p> <p>3. To the extent of a prior mortgage which the mortgagee agreed to and did pay out of the consideration of his mortgage, the loan was for the wife’s benefit, and the land is legally as well as equitably bound by the mortgage.</p> <p>3. Whether the balance of the consideration, for which the husband gave his individual note, was used for his own benefit or that of the wife, in the absence of any evidence of collusion between the husband and the mortgagee, the mortgage is within the power “ to mortgage for any purpose,” and is valid.</p>

<p>APPEAL from tbe Circuit Court for Green County.</p> <p>Tbe case sufficiently appears in tbe opinion.</p> <p>to the point that mandamus was the proper remedy in this case, as there was no other specific legal remedy to which the relator could resort, cited Crary’s Special Proceedings, 272-3; Lyon v. Q. B. da M. Ii. Go. 42 Wis. 544; Nelson v. G., M. do N. B. Go. 58 id. 519; Ohio da M. B. Go. v. People, 121 Ill. 483; Boggs v. O., B. da Q. B. Go. 54 Iowa, 435; High, Ex. Leg. Rem. 200, 228.</p> <p>They contended that the construction of farm crossings was imposed only as an incident to the erection and maintenance of fences by railroad companies, and, inferentially, that a failure to make them subjected the companies to liability for damages to cattle, etc., caused thereby, and that they were required to make such crossings only where the topography of the country rendered them necessary to the safety of the public. Mo Gall v. Ohamberlain, 13 Wis. 637; Blair v. M. da Pr. du G. B. Go. 20 id. 254; Curry v. O. db N. W. B. Go. 43 id. 665. The location of farm crossings is in the discretion of the company, subject to review by the court. Jones v. Seligman, 81 N. T. 191; OlarJce v. Boohes-ter, L. & N. Falls B. Go. 18 Barb. 350. The petition does not show that the location proposed is a necessary or practicable one, so as to make the duty to maintain it there absolute. The relator had an adequate remedy at law under sec. 1813, R. S., and mcmdamus will not lie. State v. Washington Go. 2 Pin. 552; State v. School List. 65 Wis. 631; High, Ex. Leg. Rem. secs. 42, 283. The writ should have been directed to the directors of the company. State ex rel. Ilmemeyer v. Mineral Point, 22 Wis. 396; High, Ex. Leg. Rem. secs. 542, 545.</p>

<p> Master and servant: Negligence. </p> <p>Where, in an action against a railroad company for an injury to its brakeman, alleged to have been caused by its negligence in not warning him.of the extra hazard involved in coupling cars of a particular kind which might come upon its road, the evidence that he was so inexperienced as to need special instructions or caution on that subject was not undisputed nor conclusive. FLeld, that it was error for the court so to instruct the jury as to take from it the question of the defendant’s negligence.</p>

Tbis is a contest between creditors of tbe firm of A. Armstrong & Co., for moneys collected by tbe sheriff of Dane county on several executions against tbe partners in such firm, issued on judgments recovered against them by tbe several parties to tbis proceeding. Tbe firm is insolvent.

The following statement of the case was prepared by Mr. Justice Cassoday: At the times mentioned the plaintiff was the agent of the Milwaukee Mechanics’ Insurance Company, and as such insured the property of the defendants against loss by fire, on or about January 1, 1888, and for that purpose, and as an accommodation for the defendants, the plaintiff advanced and paid to said company the sum of $37.50, being the amount of the premium on said insurance.

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

Tbe action is to reform certain written instruments. On January 24, 1887, tbe plaintiffs, Peter Kessel and wife, conveyed to their son, the defendant Peter Kessel, Jr., their farm in Washington county, containing 140 acres of land, on which they had resided for twenty-five years, together with certain personal property thereon. The farm was worth $8,000, and the personal property $1,000, and was all the property the plaintiffs owned.

The case fully appears from the opinion. They contended that, under the authority conferred by ch. 26, P. & L. Laws of 1867, as extended by ch. 147, Laws of 1875, the corporation defendant had the right to both raise and draw off the water of the lake for hydraulic purposes; and, if it had exceeded its powers, the remedy was by an information filed by the attorney general and not by private suit.

The case is sufficiently stated in the opinion.. He contended that the statute only authorizes the return to the wife of the estate received from her, and it was error to award to her interest thereon, or the profits of the business subsequently carried on. The courts cannot extend the operation of the statute. Sydnor v. Palmer, 29 Wis. 253.

The case is fully stated in the opinion. claimed that the defendant was living in the plaintiff’s family merely as a member of the family, and never claimed wages until after the plaintiff refused to lease the farm to him, and had revoked his will, and that he was not entitled to wages. Bosimieh v. Estate of Bostmiieh, II Wis. 273; Geary v. Gemy, 67 id. 218.

Washington County. The following statement of the case was prepared by Mr. Justice Cassoday: It appears from the complaint that the plaintiff owns lot 4, block 8, of the original plat of the city of West Bend, and occupies the same as a homestead and residence, and that the same fronts the east, towards River street, running north and south, and one of the principal streets of the city; that south of that block is Hickory street, running east and west; that north of that…

<p> label: What communication privileged: Instructions. </p> <p>1. At the request of a father, who had caused the plaintiff to he arrested for the seduction of his daughter, a third person wrote to the defendant making inquiries as to the character of the plaintiff, and received in reply the letter alleged to be libelous. On appeal from a judgment for defendant in an action of libel founded thereon, held that, as the person who received the letter was acting for the father, he was so interested in the matter as to make it conditionally privileged, and that it was proper to instruct the jury that, if defendant wrote it in good faith and without malice, it was a privileged communication.</p> <p>2. As to the charge in the alleged libel, that the plaintiff was an habitual drunkard, the court charged the jury that this meant more than being drunk several times within a given period; that it meant such use of liquor as to unfit a man in some manner for the conduct of his business, adding: “ But you can perhaps define it as well as the court.” Held, that the latter remark was not calculated to mislead the jury, and was not error.</p>

<p>APPEAL from the Circuit Court for Outagamie County.</p> <p>The case appears from the opinion.</p> <p>contended that it was an abuse of discretion to allow an amended answer to be filed which was in the nature of a cross-complaint in favor of one defendant against the others, there being no statute or practice allowing it. The adjudications between co-defendants do not sanction that practice. See Riee v. Cutler, 17 Wis. 355; Ogden v. Olid-den, 9 id. 46. Such amended answer contains much redundant and immaterial matter, and is more objectionable to demurrer than the original answer, as it states no defense, and sets up subjects not proper to be litigated in the action. Pelton v. Fcmnin, 18 Wis. 226; Helda F. Ins. Co. v. Morrison, 56 id. 133; Whitney v. Robinson, 53 id. 314; Heery v. McClintoole, 31 id. 205; Ha/rdy v. Mills, 35 id. 141; Tobin v. Tobin, 45 id. 298; Morse v. Stoelcman, 65 id. 43; Wilson v. Hooser, 72 id. 421.</p> <p>They took the ground that cross-actions were not abrogated by the code, and that the several rights in the water-power were proper to be adjudicated in this action,- citing many authorities.</p>

<p> Eminent domain: Riparian rights. </p> <p>1. A riparian owner upon a river has no right to divert the water thereof, or a material part of it, through his own land and return it to the river below the land of a lower proprietor, and thus deprive him of the use thereof.</p> <p>S. The act of Congress of 1875, ch. 166, giving to parties whose property is injured by certain improvements made on Fox river, a right of action against the United States in the courts of this state, to determine the amount of compensation to which they are entitled, affords an adequate means for obtaining compensation for such injuries.</p>

<p>APPEAL from the Circuit Court for Waukesha County.</p> <p>The case is very fully stated in the opinion.</p> <p>They argued, among other things, that an agent employed in manufacturing has no implied authority to bind his principal by a negotiable note for labor and materials. Paige v. Stone, 10 Met. 160. Nor can an agent authorized to give notes payable in a short period, bind his principal by one payable after a long period, as is this note. Baity v. Oarsivell, 2 Johns. 48; Tate v. Foams, 7 Mo. 419; 1 Daniel, Neg. Inst. §§ 291, 292, ei seg. The fact that this note is to run for five years with interest payable annually is an unusual circumstance, which made it the duty of an intending purchaser to inquire into the agent’s authority to issue it in that form. N. Y. Iron Mine v. Citizens’ Bank, 44 Mich. 344. The plaintiff’s agent bought the note with knowledge that the agency had ceased, and without any inquiry as to defendant’s liability thereon, and also without the indorsement of the payee, and it was subject to all defenses against such payee. Orosby v. JRoub, 16 Wis. 616; Howard v. Boorman, 17 id. 459. There was no consideration for the note going to the defendant. If it was given in compromise of a claim between the parties to it, the defendant had no interest therein. Faker v. McAllister, 84 Md. 362; Hartle v. Stahl, 27 id. 172; Stoddard v. Mix, 14 Conn. 12; Jarvis v. Sutton, 3 Ind. 289; Graham v. Johnson, 8 L. R. E. 0. 36; Hue v. Meirs, 43 N. J. Eq. 377.</p> <p>They contended that defendant had authorized the use of the name E. B. & Co., and adopted it as bis business name for that business, and was bound thereby. Banh of Rochester v. Monteith, 1 Ben. 402; 8. G. 43 Am. Deo. 681; Chandler v. Goe, 54 N. H. 561; Devendorf v. West Vd. Oil Go. 17 W. Ya. 135,174; Orocher v. Ooboell, 46 N. Y, 212; 1 Daniel, Neg. Inst. § 304. The borrowing of money and giving notes was a very frequent transaction in that business and was authorized. As the agents were carrying on no other business, the purchaser was justified in presuming that the note was given in the principal’s business. Etheridge v. Binney, 9 Pick. 272. The consideration was sufficient.</p>

<p> Abortion: Information: Evidence and instructions. </p> <p>1. An information which first charges that the defendants did, on four several days named, make a felonious assault upon M. B., a pregnant woman, and then proceeds, “and did then and there ” wilfully and feloniously employ upon her body and womb a sharp instrument, etc., and did then and there wilfully and feloniously administer to her ” medicines with intent feloniously to destroy the child, the same not being necessary, nor advised by two physicians to be necessary to preserve the life of the mother, “-by meafis whereof” they did, on the last day named, “feloniously kill and slay the said M. B.,” charges every fact essential to constitute the crime aimed at by sec. 435á, R. S., and is sufficiently certain to enable the court to pronounce judgment on a general verdict of “guilty in manner and form as charged in the information.” The allegation of assault was unnecessary and may be rejected as sur-plusage.</p> <p>2. It is no defense to an indictment under that section, that one of the defendants, who was a physician, thought the operation to be necessary to save the life of the mother, if the evidence shows that it was in fact unnecessary for that purpose.</p> <p>3. Evidence showing that the defendant operated with a knife upon the womb of a healthy woman, nineteen years of age, and a few days afterwards she was delivered of a partly grown child, and was immediately attacked with peritonitis, of which she died, raises an irresistible inference that it was not necessary to destroy the child in order to preserve the life of the mother.</p> <p>4. The exception of the statute was intended to apply only to a case where the death of the mother might reasonably be anticipated to result from natural causes unless the child is destroyed; and the fact that the woman had threatened to commit suicide unless rel lieved from her child does not show such a necessity.</p> <p>5. Upon the trial of a wife, charged jointly with her husband with haying produced an abortion, evidence is admissible that she, in the absence of her husband, offered to produce the abortion for the deceased, and stated that she had helped other women out of similar' trouble, as tending to show that she acted without any coercion by her husband.</p> <p>6. Though a preponderance of evidence that the defendants had the advice of two physicians that it was necessary to destroy the child in order to save the life of the mother would have been sufficient, yet an error in charging that, if the guilt of the defendant was in other respects proved, the jury must convict her, unless satisfied from the evidence “beyond a reasonable doubt” that they had such advice, became immaterial, where no testimony was offered by defendant to prove that fact; it being one peculiarly within her knowledge and which the law devolved upon her to prove.</p>

<p> Contract of subscription: Corporation. </p> <p>1. A written contract, signed by D. & R. as parties of the first part, and by forty other persons as parties of the second part, whereby D. & ii. agree with the latter to erect a creamery of wood, according to certain specifications, and furnish certain fixtures, etc., for $6,000, and the latter parties agree in the following terms: "We, the subscribers hereto, parties of the second part, agtee to pay the above price" to D. & F, "As soon as above amount of $6,000 is subscribed, or in reasonable time thereafter, said subscribers may incorporate under the laws of tins state,- and shall issue stock to the above mentioned subscribers, to the amount of their paid-up interest in said organization. For the faithful performance of our respective parts in the above contract we bind ourselves, our heirs, executors and administrators," held to create a several liability on the part of each of the subscribers to the amount set down by him opposite his name, on which he might be sued severally by B. & B. or their as-signee.</p> <p>2. The subsequent modification of such contract, so that the building should be constructed of brick and iron, made by an agreement entered into by a majority in number and amount of the subscribers and D. & R, without the knowledge or consent of the defendant, but without increasing his liability, did not release him from liability on his original subscription.</p> <p>3. The expenditure of money and incurring of obligations by D. & R. on the faith of the subscription, is a sufficient consideration for the promise of the subscribers.</p> <p>4. The fact that, after the whole amount had been subscribed, the association was incorporated with a larger amount of capital, and a greater number of shares, but less in amount, than originally con-' templated, does not injure the defendant, and in no way affects his liability on his subscription.</p>

<p>Tax Deeds : Form and record: Limitations: Redemption.</p> <p>1. Our statutes (seos. 1178, 1179, R S.) require a tax deed to state the place where the sale was made, and such a deed which incorrectly states that place is void on its face; and the record of such a deed, if it falsely states the place of the sale, whether it is or is not a correct transcript of the deed in that respect, is equally void on its face, and does not carry the constructive possession, nor operate as a constructive eviction, nor does it set in operation the statutes of limitations applicable to tax titles.</p> <p>2. The provision of sec. 18, subch. 8, ch. 164, Laws of 1878, incorporating the city of Fort Howard, which gives to the owner of any lot sold for taxes the right to redeem within three years from the day of the sale, and any time before deed is executed, is not inconsistent with nor repugnant to the pi’ovisions of the Revised Statutes in respect to redemption, within the meaning of secs. 4986,4987, R. S., since it does not prohibit redemption after the execution of the tax deed, but such owner has a right, under sec. 1166, R. S., to redeem at any time before the record in the register’s office shows a tax deed valid on its face.</p> <p>3. The record of a tax deed issued by the oily of Fort Howard, upon a sale made in that city, which falsely states that the sale took place at Green Bay, is void on its face, and, even though the deed itself is correct, it will not set the statutes of limitation running against the owner until correctly recorded.</p>

<p>APPEAL from the Circuit Court for Brown County.</p> <p>The case is fully stated in the opinion.</p> <p>They argued that evidence should have been admitted to show fraud or mistake in the account stated. BerMns v. Hart, 11 Wheat. 237; Loalmood v. Thorne, 18 N. T. 285; Champion v. Jos-lyn, 44 id. G53; 2 Greenleaf s Ev. sec. 128; Bouslog v. Garrett, 39 Ind. 338. The amendment to surcharge the account should have been allowed. It could not have surprised the plaintiff, the evidence being in his possession in court. Ilodge v. Sawyer, 34 Wis. 397; Miller v. Spalding, 41 id. 221; BootKby v. Scales, 27 id. 626.</p>

<p> Conditional contract: Verdict. </p> <p>1. Upon plaintiff’s stating to the defendant that he had bought at a receiver’s sale certain notes and drafts signed by the latter, but on which he was no longer liable, and paid $75 therefor, the defendant said “if you paid $75 for them, I will pay you the money back and $10 for your trouble.” Held, that such promise was wholly con-ditionaJ, and the defendant’s liability to pay either the $75 or the $10 was contingent upon the truth of plaintiff’s statement.</p> <p>2. The fact that defendant left $10 with a third party to be paid to the plaintiff for his trouble, being entirely voluntary, does not bind him as a practical construction of his contract.</p> <p>3. A verdict in an action on such contract as follows: “Your Honor, the jury find that there was no valued bargain betwixt Mr. H. and Mr. IC, and have therefore came to the conclusion that Mr. H. is not entitled to receive anything,” though informal, contains the substance of a finding for the defendant, and under sec. 2829. R. S., the judgment cannot be reversed for such defect.</p>

<p>APPEAL from the Circuit Court for Brovin County.</p> <p>This action is to recover damages for an assault and battery alleged to have been committed by defendant upon plaintiff. The complaint is in the usual form of complaints in such actions. The answer is (1) a general denial, and (2) son assault demesne.</p> <p>The defendant was in his wagon, driving along a street in Creen Bay. The plaintiff was on the sidewalk opposite defendant’s wagon, going in the same direction. The defendant accosted the plaintiff, and upbraided him for slanders alleged to have been uttered by him concerning defendant. They moved along side by side for some distance, talking and quarreling. Defendant stopped his team ¡it a street corner, on a cross-walk, where'plaintiff desired to cross the street to go to his home. Plaintiff stopped on the sidewalk, having his hands in his pantaloons pockets. Defendant got out of his wagon, and "went around the heads of his horses, and on the sidewalk, where plaintiff was standing, pushed him, and immediately struck him one or more blows in the face with his fist, which is the assault and battery complained of. When defendant pushed the plaintiff, the latter' still had his hands in his pockets. Plaintiff’s nasal bone was broken, and deflected to one side by the blow or blows, and he is unable to breathe freely through one nostril. Such deflection and interruption of respiration seems to be permanent, unless remedied by a surgical operation. The foregoing facts appear from the testimony.</p> <p>On the trial the court instructed the jury that, on the uncontradicted testimony, the plaintiff was entitled to a verdict, and submitted to them the question of damages only, which the jury assessed at $350. A motion by defendant for a new trial was denied, and judgment entered for plaintiff pursuant to the verdict. Defendant appeals from the judgment.</p> <p>They contended that evidence of threats made by plaintiff against the defendant previous to the assault should have been admitted, upon the questions of both justification and mitigation of damages. Keep v. Qioallmcm, 68 Wis. 451; Fairbanks v. Witter, 18 id. 287; White v. Territory, 3 Wash. Ter. 397; Ooma/n v. Thompson, 47 Mich. 22; Leverieh v. State, 105 Ind. 277; Galbrmth v. Fleming, 60 Mich. 403; State v. Montgomery, 65 Iowa, 483. Tbe question put to tbe physician was based upon an assumption of facts not proved, and was purely speculative and improper. Smalley v. Appleton, 75 Wis. 18; People v. Augsbury, 97 N. Y. 501; People v. Millard, 53 Mich. 63; Woolner v. Spalding, 65 Miss. 204; Louisville, AT. A. & G. P. Go. v. Wood, 113 Ind. 544; Fraser v. Jamison, 42 Mich. 208. Tbe defendant bad a right to have tbe question of justification submitted to tbe jury. Higgins v. Minaghcm, 76 Wis. 298.</p>

<p> Party-wall, contract as to: Evidence: Instructions. </p> <p>L A verbal agreement by S. to pay to P. one half the cost of a party-wall on the line between their adjoining lots, is valid, and not within the statute of frauds, if S. uses such wall after its construction by P. and receives the full benefit thereof.</p> <p>2. A written contract between P. and G. as owners of adjoining city lots, that P. shall erect a two-story building on his lot with a party-wall twelve inches thick on the line between them, standing six inches on each lot, and that G. shall pay P. a specified sum when he uses such wall, does not govern the rights of S. who purchases G.’s lot after the two-story building of P. has been burnt down, and he has built a one-story building on his lot with a party-wall of the same height; but a new agreement is necessary for that purpose, where S. afterward erects a two-story building on his lot, using such party-wall for his first story.</p> <p>3. An instruction, in an action by P. against S. on a verbal contract between them as to the use of such party-wall, that S. had no rights under the written agreement by the assignment thereof from G., if erroneous, held to be immaterial, since the verbal contract was the only one in the case.</p> <p>A The admission in evidence in such action of the plaintiff's testimony as to how he understood the written contract, when talking with defendant about what he ought to have for the use of the wall, having been upon condition that it should afterward appear that the written contract had something to do with the case, if erroneous, was cured by the instruction that the written contract was out of the case.</p> <p>5. A verdict cannot be set aside as excessive because of an instruction that the lowest figure given by a witness as to the cost of the wall was a specified sum, which sum the jury adopted as their verdict, though it was not the lowest sum testified to, if there was evidence which would have justified a larger verdict.</p>

<p> Fire insurance: Forfeiture for misrepresentations: New trial. </p> <p>1. A policy of insurance containing a condition that it shall be void if any false statements are made in the application therefor, is rendered void by a gross understatement in such application of the amount of incumbrances on the property.</p> <p>3. A motion for a new trial on the ground of newly discovered evidence, made nearly a year after dismissal of the complaint, held properly denied, where it appeared that the witness expected to be produced was present at the former trial, but went away before being examined, and that no attachment was issued for him, and no application was made for a continuance, and it does not appear that the new evidence will materially change the facts as proved before.</p>

<p> Contributory negligence: Directing verdict. </p> <p>In an action against a railroad company for an injury received by plaintiff at a highway crossing, it appeared in evidence that plaintiff, who was familiar with the locality, was driving his team with a heavily loaded sled down a hill towards the crossing, and had his ears covered to protect them from the cold; that a strong wind was blowing towards the direction from which the train came; that he stopped several times on the descent to look and listen for trains, but, not seeing or hearing any, drove slowly on, and, when within half a rod from the track and going down a pitch made more steep by snow thrown off the track, first heard the whistle of the engine, but was then unable to stop his horses. Held, that the court erred in taking the question of plaintiff’s contributory negligence from the jury and directing a verdict for defendant.</p>

<p> Railroad company: Liability for failure to fence: New trial. </p> <p>1. A railroad company which has failed to erect fences and cattle-guards, as required by law, is liable, under sec. 1810, R. S., as amended by ch. 193, Laws of 1881, for the killing of horses when on its unfenced track, in the absence of evidence that the owner drove them upon the right of way, or abandoned them in a place where it was certain that they would go upon the track.</p> <p>2. A judgment will not be disturbed for the giving of an instruction which is inapplicable to the case, where the other instructions are correct, and the findings of the jury thereon entitle the successful party to judgment.</p> <p>3. In the absence of any abuse of discretion in denying a motion for a new trial on the merits, the order of the court will not be reversed on appeal.</p>

<p> Corporation liable for acts of agents: Negligence: Master and servant: Instructions. </p> <p>1. A corporation, whose building superintendent or foreman causes an excessive weight of snow and debris to be thrown and left upon the roof of a shed, in consequence of which it falls upon and injures an employee who works under it by his direction, is guilty of negligence, which renders it liable to such employee, if he himself is free from contributory negligence.</p> <p>2. Such employee cannot be held to have assumed the risk of working under such shed, if he had no knowledge of the danger caused by the increased weight upon the roof..</p> <p>3. The corporation is not relieved from liability by the fact that it intrusted the construction of the shed to skilful workmen, or that it was stronger than such sheds usually are.</p> <p>4. Such superintendent and foreman, having power to hire and discharge laborers and to direct their work, are not the fellow-servants of such laborers, and their negligence is not that of fellow-servants.</p> <p>5. The accident, being the result not of the mere placing such excessive weight on the shed-roof, but of suffering' it to remain there, the negligence causing it was not that of the fellow servants who placed it there by direction of the superintendent or foreman, but of the latter.</p> <p>6. The knowledge of the superintendent that it was dangerous to work under such shed, is to be deemed the knowledge of the corporation, and he will be assumed to have had such knowledge if, by the exercise of reasonable care, he might have had it.</p> <p>7. An instruction that “if you find that the plaintiff was not guilty of any want of ordinary care which contributed directly towards his injury, he is entitled to recover,” given in connection with a full discussion of every question involved in the case and of all the conditions of plaintiff’s recovery or defeat, could not possibly mislead the jury so that they would understand that their finding that fact alone'would entitle him to recover.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This action was commenced on or about October 10,1890, by the plaintiffs, as residents and owners of taxable .property in the defendant town, and the complaint alleges, in effect, that in May, 1890, the highway tax and moneys in the town were exhausted; that since that date the town had expended $J,'739.75 on highways; that on or about September 2,1890, an order was unlawfully made and signed by two of…

The facts of the case are fully stated in the opinion. The plaintiff appeals from a judgment for defendant. They argued that a mortgagee had a right to assume the honesty of the mortgagor, and was not bound to ascertain the true name of the latter, under peril of losing his security. Alexander v. Grmes, 25 Neb. 454. The rule of cmeat envptor applies.

In July, 1887, the parties entered into a contract in writing, in and by which the plaintiff agreed to sell to the defendant 8,000,000 feet of white pine saw-logs, more or less, to he cut during the logging season of 1887-88, on lands owned or controlled by plaintiff, and to deliver the same to defendant on the banks of Lake Superior, and certain tributaries thereto.

The facts sufficiently appear in the opinion. They contended, among other things, that no jurisdiction had been obtained over the principal defendants, and hence the' judgment against them was invalid, and none could be rendered against the garnishees, citing the cases referred to in the opinion. They argued that the order of publication was in effect two orders, and personal service out of the state, in compliance with the alternative clause, was a complete service.

The case is sufficiently stated in the opinion. They argued that an accumulation of ice and snow on foot-paths was not a defect for which a town is liable under sec. 1339, R. S. No action would lie therefor at common law. To require towns to remove elevations and fill depressions caused by the falling and drifting of snow, or its melting and freezing, would be an incalculable burden, which the legislature cannot be presumed to have intended to impose.

The following statement of the case was prepared by Mr. Justice Cassoday : It appears from the record that March 18, 1888, the plaintiff loaned to one W. A. Boutelle $1,050, and in consideration thereof the said Boutelle at the same time executed and delivered to the plaintiff his three promissory notes, each payable to Mrs. M. A. Bradeen or bearer, at dates named, amounting in the aggregate to $1,100, and to secure the payment of which the said Boutelle, at the same time,…

Tbis was an action to recover damages for a trespass upon land.

In June, 1881, tbe circuit court of Walworth county granted tbe plaintiff, Herritt Iliehs, a divorce from bis wife, Caroline J., under cb. 297, Laws of 1881, on tbe ground that she was incurably insane. She was then an inmate of the state hospital for the insane at Mendota, but was afterwards removed to the Walworth county hospital for the insane, where she now is.

The case is very fully stated, in the opinion. The defendants appeal from a judgment for the plaintiff. They contended, among other things, that, inasmuch as the general manager was by the articles of incorporation of the company, of which, being of record, the plaintiff was bound to take notice, to be at all times subject to the orders of the board of directors, the court should have admitted evidence of what that board understood to be the contract with the plaintiff.

The case sufficiently appears in the opinion. They contended that the oral contract alleged in the answer was proved by a preponderance of evidence, and that sufficient part performance had been shown to take it out of the statute of frauds and entitle defendant to a specific performance thereof.

The case sufficiently appears from the opinion. The plaintiff appeals from an order granting a new -trial. They contended that the affidavits produced by the defendant on the application for a new trial did not show what new proof of title he could produce on another trial, while the documentary evidence then produced by plaintiff showed conclusively that he had not good title.

In an action brought by the plaintiffs and respondents to wind up the affairs of the Manufacturers’ Mutual Fire Insurance Company of Milwaukee as an insolvent corporation, the appellant Kenncm was appointed receiver.

This action is upon an insurance policy on the life of one Don A. Shove, expressed therein to be for the sole use and benefit of Theodore G. Shove, the plaintiff. Don A. died May 25, 1885, testate. By his last will and testament he bequeathed the proceeds of such policy to his wife, the defendant, who is his widow and executrix of his last will and testament. The amount due on the policy is a little less than $400.

The case is fully stated in the opinion. They took the ground that the weight of evidence was overwhelmingly against the verdict, and the proof of contributory evidence was sufficient to defeat the action. Prideaux v. Mineral Point, 43 Wis. 513; Otis v. Janesville, 47 id. 422; Thorogood v. Bryan, 8 C. B. 115. The court erred in its charge as to railings. Tift v. Towns, 53 Ga. 47; Shearm. & Redf. Negl. 251; Frankfort Bridge Co. v. Williams, 9 Dana, 405; Oroutt v. Kittery Pt.

The case is stated in the opinion. contended that the verdict was invalid, and should be set aside and a new trial be granted. State v. Moon, 41 Wis. 684; Ycmke v. State, 51 id. 471; Lee v. State, 74 id. 46; Connors v. State, 47 id. 523.

The case is fully stated in the opinion. They argued, among other things, that the court’s instruction as to the evidence was erroneous, as being one upon the weight of evidence and credibility of witnesses; as expressing tbe opinion .of tbe judge thereon; and as, in effect, excluding the other evidence as to tbe extent of tbe injury from tbe consideration of tbe jury. Poertner v. Poertner, 66 Wis. 644; Gillett v. Phelps, 12 id. 400; Hutchinson v. Grain, 3 Ill.

The case is fully stated in.the opinion. The defendants, appeal from a judgment dispossessing and ejecting them from the premises in question, and from all use thereof for the purposes of an exposition, but subject to the right of the city to use them as an open public square, or for the erection of a market-house thereon, and awarding to the plaintiff six cents damages and costs to be taxed.

The following statement of the case was prepared by Mr. Justice Cassoday: It appears from the record that February 6, 1871, Alexander McLeod died at the Tillage of West De Pere, in Brown county, testate, leaving a will executed January 30, 1871, and which was admitted to probate March 6, 1871; that said Alexander McLeod, in and by said will, gave, bequeathed, and devised all of his estate, both real and personal, to M. De Witt Peak, of G-reen Bay, as executor thereby…

<p>ERROR to the Circuit Court for Fónd, du Lao County.</p> <p>The case is fully stated in the opinion.</p>

The case is sufficiently stated in the opinion. The defend* ants appeal from a judgment for plaintiff for the full amount of rent claimed, with interest and costs. To the point that the existence and character of a way by necessity depends upon the facts and circumstances in view of which both parties acted in making the lease, they cited Lyman v. Babcoclc, 40 Wis. 511; Allen v. Lee, 1 Ind. 58; 8. O. 48 Am. Dec. 354; London v. Riggs, 37 Eng. Rep. 1; 8.

The following statement of the case was prepared by Mr. Justice Cassoday: It appears from the record that April 22, 1874, George Burnham executed his last will and testament,' containing the following provisions, to wit: “First.

The case is stated in the opinion. The plaintiff appeals from an order setting aside a verdict in its favor and granting a new trial.

The action is upon an account to recover, quantum meruit, for professional services rendered defendant by the plaintiff as an attorney at law. The account contains a large number of items of such services, extending through a period of more than two years. The answer is (1) a general denial, and (2) a special contract for all services rendered by plaintiff for defendant, and full payment therefor.

The defendant appeals from an order striking out as frivolous its demurrer to plaintiff’s complaint, the substance of which appears in the opinion, for not stating a cause of action. To the point that the complaint charges acts not within the general scope of the foreman’s authority, and does not show any direct authority for them, they cited Ilowe v. New-mareh, 12 Allen, 49; Isaacs v. Third Ave. B. Go. 47 FT. Y. 128; Maliv. Lord, 39 id. 381; Peeh v. N. Y. C. <& II.

Replevin for a quantity of goods of the alleged value of $300, an invoice of which is annexed to the complaint and made a part of it. It is alleged that the property belongs to the plaintiffs, and that the defendant unlawfully detains, the possession thereof from them.

The case is stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff for the amount of premiums paid on one policy and the amount insured by the other policy, with interest.

<p> Injunction: Nuisance. </p> <p>The owner of a city lot and of a building thereon which he occupies as a store, cannot maintain an action to enjoin the owner of an adjoining building from erecting on the front thereof two projecting or bay windows, which will extend into the street a distance of eighteen inches, on the ground that they are nuisances, and by obstructing the view to and from his store will specially damage his business; such damage being too remote and speculative to justify a private action.</p>

<p>Damages for wrong,fully cutting logs: Employer, liable when: Bemittifcur curing error.</p> <p>1. An owner of timbered lands, who employs another to cut logs therefrom, is equally liable with his employee, if the latter does not exercise reasonable care and diligence to ascertain the boundary lines of the land, but cuts logs from the adjoining lands of a third party, and hauls and delivers them to his employer, and the latter receives them and converts them to his own use; and under sec. 4269, B. S., the owner of the logs may sue and recover from him the highest market value thereof while in his possession.</p> <p>2. An error of the court in treating a statement in defendant’s affidavit that the cutting was by mistake, of the quantity of logs cut as an admission di the pleadings, and taking that question from the jury, is cured by the plaintiffs remitting from the judgment the excess above the lowest estimate given by defendant’s witnesses, and notifying defendants’ attorneys thereof before the appeal.</p>

<p> Contract to devise by will: Election of benefit: Estoppel. </p> <p>In an action against the widow, as sole heir, of a deceased person, to enforce specific performance, as to the land, of a contract by the deceased to devise to the plaintiff one half of his farm and certain personal property, it appeared that he by his will devised to the plaintiff only a life-estate in one half the farm, on condition that he should occupy it; but also gave Mm the income for life of a certain fund; and that he had received the income of the fund to an amount in excess of the value of the property he was to have under the contract; and that he qualified as one of the executors of the will, and inventoried the land and personal property as part of the estate; and that he had continued in possession of one half the farm some twelve years without attempting to assert his rights under the contract. Held, that the provisions of the will were intended by the testator as a substitute for the contract, and that the plaintiff by his acceptance of the benefit thereof had elected to abandon his rights under the contract, and was estopped from enforcing the same.</p>

This is an action for the construction of a will, the terms of which are stated in the opinion. Some of the next of kin to’ the deceased seek to obtain distributive shares of her estate, claiming that the will does not dispose of the whole thereof. From a judgment that such will did dispose of the whole of the estate, and give the remainder, after the payment of debts, legacies, and expenses, to Oheney and wife as residuary legacies and devisees, the next of kin appeal.

<p> Mechanic's lien for building erected with knowledge and consent of landowner; Defense of paramount title. </p> <p>1. In an action to enforce a lien upon land on account of buildings erected thereon with the knowledge and consent of the land-owner, where the complaint raises no issue as to any prior outstanding title paramount to that of the defendants, they cannot set up or prove such a title by way of defense.</p> <p>2. The provision of oh. 466, Laws of 1887, that “sec. 3814, E. S., as amended by ch. 442, Laws of 1887, shall not be construed as giving a hen where the relation of landlord and tenant exists,” must refer strictly to the technical relation of landlord and tenant, and was not designed to prevent a tenant for a long term from incumbering his leasehold interest.</p> <p>3. A contract whereby H. employed McN. to cut and saw timber from land to be provided by him, for a term of five years, McN. to erect a saw-mill on H.’s land for that purpose, cannot be regarded as creating the technical relation of landlord and tenant between them, but it gives to McN. such an interest in the land as can, under ch. 349, Laws of 1885, and ch. 442, Laws of 1887, be subjected to the lien of one who furnishes labor and machinery for such sawmill..</p>

<p> Attorney’s contract for fees, </p> <p>1. A letter from the attorneys of a trust company in New York to attorneys in this state, asking. the latter to aid them in foreclosing a mortgage, held by the company as trustee, of property here, which states that “ the trustee in such cases does riot pay counsel fees, but expects that they will he provided for by allowances granted by the court. It is only on this method of compensation that we ask you to co-operate with us in foreclosing the mortgage, such allowance to he apportioned between us to our mutual satisfaction; ” and the reply of the latter thereto, “We understand what you sayas to liability of the trustee for counsel fees, and concur in your views,” held to constitute an express contract as to counsel fees.</p> <p>2. The appellants having acted for the respondent in taking a judgment of foreclosure with an allowance of a certain sum as costs and counsel fees without objection, under a compromise, are not entitled to any greater sum because of their having been superseded by other counsel, on a motion by the respondent to have their fees fixed and their attorney’s lien discharged, when the allowance previously made was confirmed.</p>

<p> Breach of warranty as a defense. </p> <p>A mere breach of the warranty under which, a machine was bought is no defense, in whole or in part, to an action to recover damages for the refusal of the purchaser to give his notes for the purchase price, as stipulated in his contract, especially where he does not set up any counterclaim by way of recoupment of damages; but he must show either that he effectually rescinded the contract, or that the machine was wholly worthless.</p>

This action is on a policy of insurance issued by the defendant company to one Collier, insuring him to the amount of $400 against loss of or damage by. fire to his tobacco barn in Janesville. The barn ivas totally destroyed by fire during the term of the policy. After the loss Collier assigned his interest in the policy and insurance money due thereon to the plaintiff.

The case is stated in the opinion. The defendants McPhee & Mitchell did not answer. The defendant The Underwood Lumber Oonypany appeals from a judgment for plaintiff.

The following statement of the case was prepared by Mr. Justice Cassoday: It appears from the record that on and prior to July 15, 1889, the Joseph Schütz Brewing Company owned a large building constructed of brick and stone, with the basement resting upon large arches built of quarry stone, fastened together with mortar; that some time prior to that date the defendant entered into a contract with said company to tear down all of said building and masonry, and to construct…

<p> Evidence: Opinion of expert. </p> <p>The question whether or no a man can profitably spend seventeen hundred hours in getting up, designing, and drawing a machine for burning crude oil, does not involve professional skill or peculiar knowledge, so as to render the opinions of experts admissible on the question of the value of such services. .</p>

<p>APPEAL from the Circuit Court for Douglas County.</p> <p>This action is upon two official bonds of the defendant Yincent Cournoyer, county treasurer of Douglas cotmty,— one of which was executed in January, 1887, by five sureties, but not by the treasurer; and the other was executed in December of the same year by such treasurer and four sureties, one of whom was also surety in the first bond. The last bond was executed pursuant to a resolution of the. county board of supervisors requiring such treasurer to give an additional bond. That bond is not involved in this appeal, and no further reference will be made to it. The treasurer and all the sureties are made defendants in the action.</p> <p>The bond of January, 1887, is set out in the complaint. The obligatory part thereof is as follows: “ Know all men by these presents that Yincent Cournoyer, as principal; and James Ba/rdon, Denis Dean, Yincent Eoy, Josiah Bond, Jr., and James S. Ritchie, as sureties, of Superior, in the county of Douglas, in the state of Wisconsin, are each severally held and firmly bound unto the county of Douglas in the sum set opposite their respective names signed thereto, aggregating in the whole $10,000 good and lawful money of the United States of America, -to be paid to the said county of Douglas, its certain attorneys, heirs, executors, administrators, or assigns, for the payment of which sums set opposite our names well and truly to be made we bind ourselves, our heirs, executors, and administrators, severally and firmly by these presents. Sealed with our seals, and dated this 18th day of January, in the year 1887.” The condition is in the form prescribed by sec. 710, E. S. Each surety wrote after his signature to the bond, “ Two thousand dollars.” Breaches of the bond are charged in the complaint, and judgment demanded because of such breaches for $7,053, with interest and costs.</p> <p>Four of the sureties, the defendants Bardon, Dean, Bond, and Ritchie, interposed two general demurrers to the complaint, which were overruled by the court. A single order was entered overruling the same, from which the four defendants last named appeal.</p> <p>To the point that the statute required the principal to execute the bond, and that it was of no validity until so executed; and that his signing it was an implied condition on which it'was signed by the sureties, they cited Kimball W. W. Go. v. Baher, 62 Wis. 526; S. & B. Ann. St. secs. Y01, Y10; Sharp v. U. S. 4 Watts, 21, 23; S. G. 28 Am. Dec. 6Y6, and note; People v. Kartley, 21 Cal. 585; Becm v. Pa/rher, 1Y Mass. 591; Wood v. Washburn, 2 Pick. 24; Russell v. Annable, 109 Mass. Y2; State v. Austin, 35 Minn. 51; Sacramento v. Dunlap, 14 Cal. 421; Ferry v. Burchard, 21 Conn. 598; Bunn v. Jetmore, Y0 Mo. 228; 2 Am. & Eng. Ency. of Law, 466; note of Judge Redeield in Insurance Go. v. Broohs, 3 Am. Law Reg. (N. S.), 399; Johnston v. Kimball Tp. 39 Mich. 18Y; Board v. Sweeney (S. D.), 48 N. W. Rep. 302; Murfree, Off. Bonds, §§ 9, 10; Trustees v. Sheich, 119 Ill. 5Y9; State v. Bowman, 10 Ohio, 445; Kerriclc v. Johnson, 11 Met. 26, 3Y-41; People v. Breyfogle, 1Y Cal. 504.</p> <p>To the point that the sureties were bound, they cited State v. Bowman, 10 Ohio, 445; Trustees v. Sheich, 119 Ill. 5Y9; Pa/rher v. Bradley, 2 ITill, 584; Loew’s Adm’rs v. Stocker, 68 Pa. St. 226; Keyser'v. Keen, 1Y id. 32Y; Grim v. School Directors, 51 id. 219; Herrick v. Johnson, 11 Met. 26; Haskins v. Lombard, 16 Me. 142; Miller v. Tunis, 10 H. C. C. P. 423; Smith v. Peoria Go. 59 Ill. 414; Williams v. Marshall, 42 Barb. 524; Wild-Gat Branch v. Ball, 45 Ind. 213; McLaughlin v. McGovern, 34 Barb. 208; Ghase v. Hathorn, 61 Me. 505; Murfee, Off. Bonds, §§ 62, 235; Gutter v. Whittemore, 10 Mass. 442; Los Angeles v. Melius, 59 Cal. 444; Gooper v. Evans, 15 Wkly. Rep. 609; Mann v. AEtna Lns. Go. 40 Wis. 549; Moss v. Wilson, 40 Cal. 169; Lewis v. Stout, 22 Wis. 234.</p>

<p> Lien upon logs: Filing petition: Evidence: Instructions: Estoppel. </p> <p>1. The gathering and care of the peavies and toois which have been used in driving logs, at the conclusion of a job, is an essential part of the work, and the time employed in so doing is a part of the time for which a lien is given.</p> <p>2. If a part, of the labor of driving logs for which a laborer seeks to enforce a lien was done on logs other than those of defendant, though contracted to be run by his employer, he cannot enforce a lien on defendant’s logs therefor; and for the court to refuse to instruct the jury, in such a case, that they should find how much was done on other logs, and charge defendant’s logs only with the labor done on them, is error for which a judgment for the plaintiff for his whole claim should be reversed.</p> <p>8. Although the petition for a lien was handed to the clerk of the court when away from his office, yet his indorsement of it as being filed on that day is prima facie evidence that it was actually filed in his office on that day, and is conclusive in the absence of evidence to the contrary.</p> <p>4. In an action to enforce liens upon logs for work done by the plaintiff and his assignors as employees of contractors for driving such logs, the checks, account-books and time-book of the contractors are not competent evidence of the amount of work done by them or the balance due them; but, if the plaintiff offers the time-checks and account-books, and the defendants the time-book, they are both es-topped from assigning error because of the admission or rejection thereof.</p>

<p>ERROR to the Circuit Oourt for Ashland County.</p> <p>The case is'stated in,the opinion.</p>

<p> Appeal from judgment of county court assigning real estate: Leave to appeal after time. </p> <p>A child, horn seven months and twenty three days after her mother was divorced from her first husband, and four months and twenty one days after her remarriage, has such an interest in the question of her own legitimacy, and of her rights as heir of her mother and of the first husband, as entitles her to appeal from the judgment of the county court assigning the real estate of her deceased mother on the final settlement of her estate; and leave may properly be granted to her to take such an appeal after the expiration of the sixty days allowed by law, where her failure to appeal in time was without fault of her guardian, and because such assignment was unknown to him.</p>

<p> Attachment: Seizure of property of thirdperson: Regaining possession. </p> <p>If, after the seizure of his property on an attachment against another person, the rightful owner quietly and peaceably obtains possession thereof, he may retain it, and the officer will not be justified in using force to regain possession.</p>

<p>APPEAL from the Circuit Court for Brown County.</p> <p>This is an action of ejectment, brought by plaintiffs to recover certain land in Brown county, being a designated portion of private claim No. 10. The defendant admits his possession of the land claimed, as charged in the complaint. The history of the title to such land, as the same appears by the records and documents introduced in evidence, so far as it affects the questions considered in the opinion, is as follows:</p> <p>In 1857 and before, tbe defendant, Augustin, Brimette, was tbe owner of a portion of private claim No. 10, including tbe land in controversy. In that year Augustin and wife executed to Joseph Pauquette a mortgage on tbe land so owned by him to secure tbe payment of $550 and twelve per cent, interest. In 1864 Pauquette assigned such mortgage to Cormier and Wigger, who immediately thereafter assigned tbe same to Joel S. Eisk. Tbe mortgage and . assignments were duly recorded. In 1866 Fisk foreclosed tbe mortgage by advertisement, pursuant to a power of sale contained therein, and purchased the mortgaged premises at the foreclosure sale. Eisk afterwards died testate, and tbe lands of which be died seised were duly partitioned to 'the persons entitled thereto. Tbe land in controversy was assigned to William J. -Fisk. On January 24,1882, tbe latter conveyed tbe same land to John Brunette. In 1884 John Brunette and wife executed a mortgage on tbe same and other land to the plaintiffs as executors of tbe last will of 'L. Nau, deceased. This mortgage was thereafter foreclosed, and tbe plaintiffs became tbe purchasers of tbe mortgaged property at tbe foreclosure sale. March 16,1888, tbe sheriff who made tbe sale duly conveyed tbe land thus sold to tbe plaintiffs.</p> <p>April 4, 1870, Augustin, Brunette and bis wife executed to John Brunette a quitclaim deed of tbe land in controversy, together with other lands. Augustin Brunette claims that be only intended to lease tbe land to John for two years, and supposed that tbe instrument be executed, which in form is a conveyance of the land, was such lease.</p> <p>On tbe trial, at tbe close of tbe testimony, tbe court directed tbe jury to return a verdict for plaintiffs, which they accordingly did in the form prescribed by law. Judgment was thereupon entered for plaintiffs for. tbe recovery of tbe land in controversy. Tbe case is further stated in tbe opinion. Tbe defendant appeals from the judgment.</p> <p>They contended, invter alia, that this being an action of ejectment to try the legal title, the defendant could not he deprived of his right to the verdict of a jury on the question whether or not the alleged quitclaim deed was void for fraud. The circuit judge decided the case as if it had been a suit in equity to reform the deed on the ground of mistake. This was a fatal error. Campbell v. Campbell, 57 Wis. 289-291; Gray v. Tyler, 40 id. 579; Hipp v. JBdbm, 19 How. 271-279; Pa/rker v. Winnipegiseogee Lake C. & W. Co. 2 Black, 545-553; Deery v. McClintock, 31 Wis. 195-207; Wells, Jurisdiction, 67. If the quitclaim deed was obtained by fraud, it was absolutely void, and the title remained in all respects as though it had never been executed. Jackson v. Mills, 8 Cow. 293; Franchotv. Leach, 5 id. 508; ■Van Valkenburgh v. Bouk, 12 Johns. 337, 338; Jackson v. Perkins, 2 Wend. 308, 317; Crocker v. Bellangee, 6 Wis. 668; Osterhowt v. Shoemaker, 3 Hill, 516, 517.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>This is an action in equity to enforce specific performance of an alleged parol contract for the sale and transfer of certain mining stock.</p> <p>In 1883 one Wakefield and six others, being owners of certain land in Ontonagon county, Mich., supposed to contain iron ore, executed to Samuel S. Yaughn and Nathaniel D. Moore a lease thereof known as a mining lease, for the term of thirty years, on certain conditions therein expressed. One of those conditions was that the lease should not be assigned without the consent of the lessors. One Bowen had a one-fifth interest in the lease, and afterwards another interest therein was assigned to one Hoffman. The interests of Bowen and IToffman together was one third of the whole, leaving a one third interest in each of the original lessees, Yaughn and Moore. It is understood that Yaughn controlled Bowen’s interest. In the summer of 1885, Yaughn opened negotiations with Henry D. and J. W. Smith to sell such lease to them, and obtained the consent of the lessors to such sale. These negotiations ended without any sale being made. Afterwards both Yaughn and Moore had negotiations with Wakefield for a sale of the lease, but no sale was made to him. Thereupon, in August, 1885, Yaughn renewed negotiations with the Smiths, which resulted in the sale to them of his interest, and that. of Bowen in the lease. Moore joined in the assignment of the lease to the Smiths, under an agreement with them that he should retain his one third interest, which seems to have been afterwards reconveyed to him by the Smiths pursuant to the agreement. The Smiths and their associates then organized a corporation under the laws of Michigan, known as the Sunday Lake Mining Company, to which the lease was .duly assigned, and one third the capital stock of such corporation was issued to Moore as and for his interest in the lease.</p> <p>It is claimed in this action that Yaughn desired to dispose of the lease of the Sunday Lake property, while Moore wished to keep and develop the property, believing it to be rich in minerals; that Yaughn offered Moore 1,000 shares of the stock of a corporation known as the Aurora Iron Mining Company, if he would consent to a sale and transfer of the lease; and that Moore accepted such offer, and in consideration thereof consented to the sale and joined in the assignment of the lease to the Smiths. Yaughn died in January, 1886, testate, bequeathing his stock in the Aurora Company, being 1,016 shares, to his widow, who is-also the executrix of his will. She afterwards intermarried with one Mackinnon, and is the defendant Emelime Vaughn-Maekinnon. Due demand upon her was made by Moore for the Aurora stock, but she refused to assign and deliver the same to him. Moore assigned his interest in and right to such stock to the plaintiff, who thereupon, in 1888, commenced this action against Mrs. Maohirmon and the Aurora Company to compel her to deliver the stock pursuant to the alleged contract of her husband, and to compel the company to "pay over to him certain accrued dividends thereon held by the company. The defendant company, made no defense to the action. Mrs. Macldmnon answered, among other things, denying that her former husband ever promised to deliver or assign such stock to Moore.</p> <p>The circuit court found that Vaughn promised and agreed to assign the 1,000 shares of Aurora stock to Moore, and gave judgment for plaintiff for the specific performance of such agreement, requiring Mrs. Mackinnon to assign the 1,000 shares of Aurora stock to plaintiff, and requiring the defendant company to pay over to the plaintiff the. dividends thereon retained by it. The defendant Mrs. Mac-Idnnon appeals from such judgment.</p> <p>They argued, inter alia, that no consideration was paid by Moore, and therefore the alleged agreement will not be, specifically enforced. Waterman, Spec. Perf. 186; Hanson ,v. Miehelson, 19 Wis. 498; Eaton v. Eaton, 15 id. 2.59; Peiesch v. Hambaeh, 48 id. 443; Webb v. Alton M. da F. Ins. Go. 10 Ill. 225; Preston v. Williams, 81 id. 177; Soiith. v. Wood, 12 Wis. 382. Specific performance cannot be decreed of a sale of property not specific. 1 Benj. Sales, sec. 469; Qillett v. Hill, 2 Cromp. & M. 530; First Hat. Bank v. Crowley, 24 Mich. 492; Halm v. Fredericks, 30 id. 224; Crapo v. Seybold, 35 id. 169; May v. Hoaglan, 9 Bush, 171; Randolph I. Co.v. Elliott, 34 N. J. Law, 184; Johnson v. Pierce, 16 Ohio St. 473; Ormsby v. Machw, 20 id. 295 ; Home Ins. Co. v. Heck, 65 Ill. Ill, 112.</p> <p>They cited, as to jurisdiction to decree specific performance of a contract for transfer of stock, Todd v. Taft, 7 Allen, 371; Holmes v. Winchester, 133 Mass. 140; Leach v. Forbes, 11 Cray, 510; Cushmcm v. Thayer Mfg. J. Co. 76 N. T. 365, 368; White v. Sehuyler, 1 Abb. Pr. (N. S.), 300; Johnson v. Brooks, 93 N. T. 337, 343; Treasurer v. Com. M. Co. 23 Cal. 390; Cowles v. Whitman, 10 Conn. 121; Frue v. Houghton, 6 Col. 318; Bissell v. Farmers & M. Bank, 5 McLean, 495; Boss v. H. P. B. Co. 1 Woolw. (C. C.), 26, 33; Puncuft v. Albrecht, 12 Simons, 189; Shaw v. Fisher, 5 De G., M. & G. 596; Wynne v. Price, 3 De G. & Sm. 310; Wilson v. Keat-ing, 7 Weekly Rep. 484; Cheale v. Kenward, 3 De G. & J. 27; Cook, Stockholders, sec. 338, and cases cited; 2 Story, Eq. Jur. (13th ed.), secs. 717, 718.</p>