Volume 80 — Wisconsin Reports

<p>APPEAL from the Circuit Court for Marathon County. •</p> <p>Action upon a bond. In 1888 one Stevens, who was operating a saw-mill in Marathon county, sawed certain logs into lumber for the firm of Parcher, J. & A. Stewart & Co., the firm consisting of four members. The logs belonged to one Callón, who was liable to the firm for the sawing thereof, but was not personally liable therefor to Stevens. Gallon executed a bill of sale of the logs and lumber cut therefrom to Benjamin Hememann, the defendant, as security for a debt be owed tbe latter of between $800 and $500. There was over 180,000' feet of the lumber, worth $10 per M. feet. The bill for sawing remaining unpaid, Stevens commenced an action in the circuit court to enforce a lien therefor on such lumber, making the' four members of the Parcher-Stewart firm, Gallon and wife, and Hememcmñ, defendants thereto. Personal claim was made against the firm only. Gallon alone interposed a defense to the action.</p> <p>"While the lien action was pending, in consideration that the lien should be released and the lumber delivered to Heinemarm, the latter executed a bond to Stevens, conditioned for the payment by him to Stevens of all sums which he might recover in his action against the defendants therein or any of them. Thereupon Stevens abandoned his lien proceedings, delivered the lumber to Hememann, dismissed the action as against Gallon, and took a personal judgment by. default against the members of the Parcher-Stewart firm for $378.54 damages, and $58.54 costs.</p> <p>Afterwards Stevens assigned his judgment and the bond of Heinemann to Maggie T. Trevitt, the plaintiff, who brought this action against Hememcmñ on such bond. The defendant interposed a counterclaim to the action, alleging that by the mistake and inadvertence of the attorney who drew the bond the same was not drawn to express the real agreement under which it was given, in that the agreement was that the'defendant was only to be held liable to pay the judgment in the lien suit in case Stevens prosecuted the same against all the defendants therein, and established in such suit his right to the lien claimed. A reformation of the bond was demanded, so that it should express the actual agreement of the parties.</p> <p>The cause was tried by the court without a jury. The findings of fact and conclusions of law are in favor of the plaintiff, and pursuant thereto judgment was entered for the plaintiff for the amount of the judgment in the lien suit and the costs of this action. The defendant appeals from the judgment.</p>

<p>APPEAL from the Circuit Court for Dam County. .</p> <p>It appears from the record, in effect, that Nelson T. Bromley, on May 13, 1887, was the owner of real estate and personal property to-the amount in value of $20,000 and upwards; that on that day he conveyed and transferred all of his property to one Mrs. Arndt; that on the same day he executed a will giving to her all his property; that at that time be was seventy-sis years of age, having no obildren, and that his wife had died about two weeks before ; that soon after the defendant Graham made a large claim for services against Bromley or his property, and commenced an action against him and Mrs. Arndt to recover thereon, claiming that Bromley was incompetent to make such conveyances and transfers; that June 11, 1887, in pursuance of such claim, Mrs. Arndt conveyed to Graham 160 acres of said land of the value of $5,000, and notes ■and mortgages so acquired to the amount of about $5,000 .in value, in settlement of such suit ¡that June 30, 1887, Mrs. Arndt conveyed eighty acres of said land to one Har-renden.</p> <p>On June 30, 1887, Bromley commenced an action in the circuit court against Mrs. Arndt, Graham, and his attorneys, and subsequently by an amendment against said Horren-den, to set aside said several conveyances and transfers from Bromley to Mrs. Arndt, and from her to the other persons named. July 2,1887, notice of lis pendens was filed therein. July 5, 1887, W. H. Cole was appointed general guardian for said Bromley. July 11,1887, said Cole, as such general guardian, was substituted as plaintiff in the¿, action. July 12,1887, said Cole was appointed receiver of all said property. In August, 1887, the respective defendants answered in said action.</p> <p>On October 27, 1887, Bromley died, leaving debts not exceeding $900, exclusive of Graham’s claim. October 29, 1887, said Cole was appointed special administrator of Bromley’s estate. November 14, 1887, said Cole, as such special administrator, obtained an order reviving said action in his name.. February 1, 1888, the county court refused to admit to probate the said will of said Bromley, on the ground that he was mentally incompetent to make a will, and that the same had been procured by the undue influence of Mrs. Arndt.</p> <p>On February 29, 1888, Graham amended bis answer, and set up a counterclaim for bis said services. Prior to April 13, 1888, tbe respective parties in tbe action stipulated for tbe settlement thereof. In pursuance of sucb stipulations a judgment was rendered therein April 13, 1888, wherein, among other things, it was ordered and adjudged that the title to the 160 acres so conveyed to Graham be, and the same was thereby, adjudged to be in Graham, together with a certain portion of said personal property; that the title to the eighty acres so conveyed to the said Harrenden, be, and the same was thereby in all respects, confirmed and adjudged to be in said Harrenden; and that the conveyance to said Mrs. Arndt of a certain other portion of said real estate be, and the same was thereby, set aside, and the title thereof adjudged to be in the heirs of said Bromley*</p> <p>On June 8, 1888, said Cole was appointed general administrator of the estate of said Bromley.' July 25, 1888, notice was given to the creditors of said Bromley’s estate to present their claims, and limiting the time for doing so to February 28, 1889. Said Graham never presented any claim to the county court against said Bromley’s estate.</p> <p>On May 10f 1889, the plaintiff Jones was informed of the terms of said settlement of April, 1888. March 15, 1890, the appellants, T. H. Jones, Elmira H. Knott, and Sarah 0. Wood, filed a supplemental complaint or petition in said action, duly verified by them, and alleging that they were three of the heirs at law of said Bromley, deceased, and entitled to the undivided one-fourth of the real estate of which he died seised, or to which he was entitled in fee, and that the same descended to and became their property upon his death; that the heirs of said Bromley were about twenty in number; that it was impracticable to bring them all before the court; that they filed said supplemental complaint or petition to revive said suit on behalf of themselves and all other heirs of said Bromley who might come in and be made parties to the suit, and pay their share of the costs and expenses thereof. Said supplemental complaint alleged, in eifoct, the facts stated, and prayed, in effect, that said action be revived on behalf of said heirs; that said eompro-mise, and settlement be declared null and void; and that said judgment be declared void as against said heirs. Upon the hearing of said motion and application, the same was overruled and denied by an order of the court, August 6, 1890. From that order the plaintiffs therein appeal.</p>

<p>APPEAL from the Circuit Court for Waukesha County..</p> <p>The case is sufficiently stated in the opinion. The plaint- ’ iff appeals from a judgment of nonsuit.</p>

<p> Statute of frauds: Oral promise to answer for debt of another: Personal promise of receiver: Consideration. </p> <p>Mortgagees of property belonging to an insolvent.corporation released their lien and allowed the receiver of the corporation to sell the property and use the proceeds in the course of his business as receiver, upon the faith of his promise, both as receiver and in his individual capacity, to pay them at a future time the value of the property thus sold. Personally the receiver derived no benefit from such release of the lien. Held, that his personal promise, being • ■ one to answer for the debt of another and not being in writing, was void under sec. 3307, R. S.</p>

<p> Trade-marie: Infringement:. Imitation of paclcages: Injunction. </p> <p>The plaintiff prepared and sold medicine in boxes labeled “Gessler’s' Magic Headache Wafers: A positive cure for headache and neuralgia,” followed by directions for taking, and the words “Manf’d by Max Gessler, manuf g chemist, Milwaukee, Wisconsin. Price 35 cents. For sale at all drug stores.” His registered trade-mark was “Magic Headache.” The defendant, a druggist in Milwaukee, sold a medicine in similar boxes, labeled “ Brown’s Alpha Headache Wafers” (or “W. J. Brown’s Alpha Wafers”): “A positive cure for headache and neuralgia,” with directions similar to those. on plaintiff’s labels, and the words “ Manufactured at Brown’s Pharmacy, Marquette, Michigan. Price 35 cts. For sale at all drug stores.” The wrapper of the plaintiff’s boxes contained, in blue and white, the words “Gessler’s Magic Headache 'Wafers. Manufactured only hy Max Gessler, Milwaukee, Wis.while those of the boxes sold by defendant contained, in red and white, the words “Alpha Wafers for Headache and Neuralgia. Manufactured only at Brown’s Pharmacy, Marquette, Mich.” Held:</p> <p>(1) There was no infringement of the plaintiff’s trade-mark. He had no exclusive right to the use of the words “Pleadache Wafers ” as a trade-mark.</p> <p>(2) The packages used by the defendant were not such an imitation of the plaintiff’s as would entitle the plaintiff to an injunction against such use.</p>

<p> Contraéis: Subscription: Unauthorized release by trustee. </p> <p>An offer, made by an individual to a county board, to pay to a corporation oi'ganized for that purpose the sum of $1,000 towards the erection of a soldiers’ monument, on condition that the county raise and pay to said corporation $2,000 for the same purpose, became a binding contract upon acceptance of the offer and fulfilment of the condition by the county; and the said corporation had no power thereafter, without consent of the county, to release the said individual from payment of said sum, or to agree to other conditions, a breach of which should relieve him from his obligation.</p>

<p>APPEAL from the Circuit Court for Portage County.</p> <p>Action to recover a balance alleged to be due upon a contract for the sale of lumber. The facts will sufficiently appear from the opinion. The’ defendants appeal from a judgment in favor of the plaintiff.</p> <p>They contended, inter alia, that if the fifty cents per. thousand feet was not an agreed price for loading, it was at least the contemplation of the contract that the, prices named for the lumber included the cost of putting it on the cars, and that this sum of fifty cents per thousand feet was reserved as a penalty, or perhaps rather in the nature of dehitum m prcesenti, solvendvm in futuro, and that it comes within the rule of Jaelcson v. Cleveland, 19 Wis. 400; Dullaghcm v. Fitch, 42 id. 679; BerrmJcott ,v. Traphagen, 39 id. 219; Fenner v. Hammond, 36 id. 277.</p> <p>They argued, among other things, that after title had passed in a contract of sale, and the goods are destroyed without the fault or negligence of either party, the vendee cannot retain from the purchase price any amount whatsoever under the plea that the vendor has been relieved, by the accidental destruction of the property, from the performance of some duty he owed the vendee in respect thereto. 2 Benj. Sales, 748-9; Taylor v. Caldwell, 3 Best & S. 826; Dexter v. Horton, 47 N. Y. 62; Coolc v. MeCable, 53 Wis. 250; Rugg v. Minett, 11 East, 210; Morrow v. Delaney, 41 Wis. 160; Gill v. Benja/min, 64 id. 362; Powers v. Dellinger, 54 id. 389; Pratt v. Pede, 70 id. 625; Terry v. Wheeler, 25 N. T. 525; Wilkinson r. Holiday, 33 Mich. 386; Whitcomh v. Whitmey, 24 id. 486; 1 Benj. Sales, 336.</p>

<p>APPEAL from the Circuit Court for Waupaca County.</p> <p>October 30, 1889, the plaintiffs, constituting the firm of Campbell Bros. & Cameron, commenced this action of re-plevin against the defendants, constituting the firm of Dick & Berkley, to recover the possession of one span of bay horses, weighing about 2,800 pounds, six sets of logging sleds, and three yokes of heavy oxen, of the value in the aggregate of $650, alleged to have been wrongfully detained by the defendants from the plaintiffs to their damage in a sum stated; and, to sustain such claim, relied principally upon a chattel mortgage executed to them by Frank Jackson, September 21, 1888, and filed September 22, 1888, to secure the payment of $750. The defendants claimed to be the owners of the property, and lawfully entitled to the possession thereof as such,'under and by virtue of a chattel mortgage executed to them by Frank Jackson, April 15, 1886, and additions thereto, and a renewal thereof on or about April 11, 1888, to secure the payment of $1,018.62.</p> <p>A jury having been waived, the cause was tried by the court, and at the close of the trial the court found, as matters of fact, in effect, that the plaintiffs claimed title to said property under said chattel mortgage of September 21, 1888; that, at the time of executing the same, the said Jackson was the owner of four yokes of heavy oxen for logging purposes, and eight sets of logging sleds which he had used the previous winter in the woods; that the description in said mortgage was indefinite and uncertain as to which three yokes of said oxen and which six sets of said sleds were covered thereby; that said mortgage covered and included property that was then by law exempt from sale upon execution, but that the said Jackson’s wife, then living with him, did not sign the same; that prior to the time of receiving said mortgage the plaintiffs had actual notice of the existence of the chattel mortgage given by said Jackson to the defendants; that the value of the horses described in the complaint, at the time they were replevied, was $225; that the value of the three yokes of oxen at that time was $285; that the value of the six logging sleighs at that time was $150, making a total of $660; that the defendants took the property described in the complaint from said Jackson, October 26, 1889, under and by virtue of a chattel mortgage executed by Jackson, April 15, 1886, to them, in good faith, to secure a bona fide indebtedness to them of $1,018.62; that there was still due thereon $1,161.22; that said mortgage covered and included the very bay team and three of the oxen and the six sets of logging sleighs described in the complaint; that the other oxen described in the complaint were in good faith added to and included in said last-named mortgage by said Jackson and the defendants in the spring of 1888; that after said additions to that mortgage the same was, April 11, 1888, duly renewed by the filing of the proper affidavit of renewal; that the plaintiffs had due notice of such renewal prior to September 21, 1888; that October 26, 1889, said Jackson turned over and delivered all of the property described in the complaint to the defendants on their said chattel mortgage and debt thereby secured, and the defendants thereupon received the same upon such indebtedness and mortgage before the commencement of this action; that the defendants have been damaged ten cents by the plaintiffs taking from them the possession of said property; that the defendants do not claim a delivery thereof to them; that the value of the defendants’ interest’ in said property is the amount of their said indebtedness against said Jackson secured by said mortgage; that at the time of the commencement of this action the defendants were and still are the owners of the property described in the complaint, and entitled to the possession thereof, and are still so entitled.</p> <p>And, as conclusions of law, the court found, in effect, that the plaintiffs’ chattel mortgage was void; that the defendants’ chattel mortgage was valid; that at the time of the commencement of this action the defendants were and still are the owners of the property described in the complaint, and entitled to the immediate possession thereof; that the defendants were entitled to judgment against the plaintiffs for ten cents damages, and $660, the value of the property taken, together with the costs and disbursements of this action; and judgment was ordered accordingly. From the judgment entered thereon the plaintiffs appeal.</p>

It appears from the record that October 80, 1889, the plaintiffs, constituting the firm of Campbell Eros. & Cameron, commenced this action against the defendant to recover. $750, and interest thereon, on an express contract; that at the time of the commencement of the action one of .the plaintiffs made an affidavit for an attachment therein, and which, as amended, stated as the ground thereof, in effect, that the defendant had assigned, conveyed, disposed of, or concealed,…

Action to enforce a lien upon logs. The facts are sufficiently stated in the opinion. There was a verdict in favor of the plaintiff, assessing his damages at $89, and finding that he was entitled to a lien upon the logs for that sum: From the judgment entered on such verdict the defendant company appealed. .

. APPEAL from the Circuit Court for Marathon County. This action was brought to recover a balance claimed to be due appellant on the purchase price of a quantity of lumber sold by appellant to the defendants D. and F. McDonald, who were partners, June 7, 1882, by the following written contract: , “This article of agreement, made and concluded the seventh day of June, A. D. 1882, by and between Amanda S. Hosmer, of Washington, D. C., party of the first part, and D. & F.…

The action is ejectment brought by three religious organizations known respectively as The West KosMconong Congregation, The Eastern… Held: at which meeting the subject of the purchase of this sixty acres was considered; and the record of that' meeting was received in evidence against objection, and contains, among other matters, the following resolution: “ (1) The congregation shall buy sixty acres of land as follows, which, together with the thirty acres belonging to…

The plaintiff claims to be the legal and equitable owner .of 840 acres of iron lands in Ashland county, Wisconsin, and brings this action in equity to carry into effect a decree of the supreme court of the District of Columbia, dated July 9, 1880; also to have the alleged title or claim of title of the defendants, and all of them, adjudged void as to the plaintiff, and to compel them to release or convey their pretended titles to the plaintiff.

The facts are sufficiently stated in the opinion. To the point that it was error to admit testimony as to the alleged settlement in January, 1890, they cited Campbell v. Mellen, 61 Wis. 612; Bunn v. Me Owns, 5 Sandf. 224; George v. West, 52 Yt. 645.

<p>APPEAL from the Circuit Court for Walworth County.</p> <p>The facts are sufficiently stated in the opinion. There was a. verdict in favor of the plaintiff, assessing her damages at $5,000, and from the judgment thereon the defendants appeal.</p> <p>They contended, inter alia, that the trial court erred in admitting evidence of the conversations between the plaintiff and her husband, and of the conversation and conduct of the husband toward the plaintiff and others within hearing, in the absence of the defendants. R-v. M-, 21 Wis. 50; King v. Colvin, 11 R. I. 582; Cecil v. Clark, IT Md. 508. The judgment of the justice, discharging the plaintiff from arrest, was not prima facie evidence of want of probable cause for the arrest, in this action. Winn v. Peckham, 42 Wis. 499; Skidmore v. Bricker, TT Ill. 164; 2 Phil. Ev. 50 (Oowen, H. & E. note, 213); Starkie,Ev. pt. II, pp. 182, 184; Id. pt. IY, p. 913; Stewart v. Sonneborn, 98 U. S. 1ST, 195; Israel v. Brooks, 23 Ill. 575; Thorpe v. Bal-liett, 25 Ill. 339; Comisky v. Breen, 7 Ill. App. 369; Stone v. Crocker, 24 Pick. 81; Kidder v. Parkhurst, 3 Allen, 393; Thompson v. Beacon V. Rubber Co. 56 Conn'. 493; Stand) v. Van Benthuysen, 36 La. Ann. 467; Bitting v. Ten Eyck, 82 Ind. 421; Adams v. Usher, 3 Rlackf. 445; Bell v. Pea/ray, 11 Ired. 233; Scott v. Simpson, 1 Sandf. 601; Roberts v. Bayles, id. 47; TTlknan v. Abrams, 9 Bush, 738; Sweeney v. Perney, 40 Kan. 102; Williams v. Vanmeter, 41 Am. Dec. 644; Griffin v. Chubb, 7 Tex. 614; Heldt v. Webster, 60 Tex. 207.</p> <p>To the point that the testimony as to plaintiff’s conduct and whereabouts at the picnic and her husband’s statements to her at the time respecting it, was competent, they cited, besides cases cited in the opinion, Adams v. Usher, 25 Am. Dec. 102; Newton v. Weaver, 13 R. I. 616; Reisan v. Mott, 42 Minn. 49; Long v. Rogers, 17 Ala. 540; Pitts v. Burroughs, 6 id. 733; Cooley, Torts, 181-2; Shaul v. Brown, 28 Iowa, 37; Lunsford v. Dietrich, 86 Ala. 250; Shannon v. Jones, 76 Tex. 141; Addison, Torts, 743; Young v. Lyall, 5 N. Y. Supp. 11; Woodworth v. Mills, 61 Wis. 44; Williams v. Vanmeter, 8 Mo. 339; 2 Greenl. Ev. secs. 454-5.</p>

<p>ERROR to the Circuit Court for Sauk County.</p> <p>The plaintiff in error, August Sehuster, was tried at the September term, 1890, of the Sauk County circuit court on an information charging in due form that on February 7, 1890, at said county, he feloniously made an assault with a dangerous weapon, to wit, a club, on one Rosa Sackman, and did therewith beat and bruise her, with intent to kill and murder her. The jury found him guilty of the offense charged. A motion for a new trial, based upon affidavits tending to show that one of the jurors was' not a citizén of the United States, and that another juror had expressed opinions before the trial that the accused was guilty of the offense charged, and was thus disqualified for prejudice, was denied. A motion for a new trial, founded on the minutes of the judge, was also denied. The court sentenced the accused to imprisonment in the state prison for not less than one nor more than fifteen years, in the form of sentence prescribed by sec. 4733, R. .S., as amended by ch. 390, Laws of 1889 (S. & B. Ann. Stats, sec. 4733).</p> <p>The' alleged crime was committed at the residence of one Klump, an uncle of Rosa Sackman, with whom she resided, situated on the road between Baraboo and North Freedom, in Sauk county, and near the Baraboo river. Rosa was twenty-two years of age. She was alone in the house at the time, ber uncle and aunt being absent at North Freedom. She testified that August Schuster came into the house on the afternoon of February 7, 1890, and ashed for food. She prepared some food for him, and he sat down at the table and ate it. He then seized her, tied her hands behind her with her.apron strings, tied her feet with a cord which he took from his pocket, and threw her upon the floor. That before doing so he attempted to compel her to take something from a bottle he took from his pocket, which she said smelled like carbolic acid, and she thought it was mixed with something else. She successfully resisted taking the contents of the bottle, but the liquid was poured over her face and neck, which were burned by it. She called him by name, but he denied that he was August Schuster. He then demanded the money her uncle had belonging to the school district, of which the latter was treasurer and had been for many years. She refused to tell him where the money was. He searched for it in different rooms, but unsuccessfully. He also struck her with a stick of stove-wood, and kicked her several times, violently, on different parts of her person, and threatened to kill her by inches, and to drown her in the river. He then dragged her out of the house towards the river, but before reaching it a wagon was heard approaching, and he dropped her and fled.</p> <p>She had attended school nine or ten years before with August, who then lived with his father in the same school district, and was then quite intimate with him and his brothers and sisters. She had seen him but once afterwards, and that was two years before the assault was committed upon her. She then spoke to him. She testified with much positiveness that August Schuster, the accused, was the person ' who committed the outrage upon her, and recognized him at once as such person when he came into her presence after his arrest. She also described the clothing worn by her assailant, which corresponded with that found in the possession of August when arrested.</p> <p>When Mr. and Mrs. Klump returned borne later in tbe afternoon they missed Rosa. Search was immediately instituted for ber, and sbe was found near tbe river, insensible, her bands and feet tied in the manner above stated, and ber face and neck burned and blistered. They found the table prepared for one person, found a stick of stovewood on tbe floor, and bureau and stand drawers disordered and partly emptied of their contents. Rosa remained insensible most of tbe time until the next morning. Sbe testified before tbe examining magistrate in February, and again on tbe trial in September; in both cases, however, at ber home, being unable to attend tbe court by reason of ber injuries. We find no material discrepancies in ber testimony or in any statements of tbe occurrence made by ber in or out of court. Sbe has always firmly maintained that August Schuster is tbe person who committed the outrage upon ber. For several years Rosa has been subject to occasional fainting fits, which seem to be of an epileptic character; and in 1888 sbe bad two attacks of paralysis. ' These attacks, after they passed off, do not seem to • have affected ber memory or mental faculties very perceptibly. Since sbe was assaulted, and during tbe same year, sbe has had other attacks of paralysis. Her testimony was taken at ber home; tbe judge, jury, attorneys, and accused attending for that purpose. Sbe fainted before it was completed, and could proceed no further. So much of her testimony as was then taken, and her testimony before tbe examining magistrate, was read on tbe trial, by stipulation, as ber testimony in tbe case. One Barbara Meyer testified on tbe trial that sbe knew August, and that sbe saw him at tbe house of bis father in North Freedom (which is two miles from Hump’s bouse) on tbe morning of February 7, 1890. Other witnesses testified that on tbe afternoon of that day they saw a person, dressed as Rosa testified tbe man who assaulted ber was dressed, walking on tbe railroad track in tbe same vicinity. Mrs. Collins, who taught the school' attended by Rosa and August nine or ten years before, and who had seen him but once since, readily recognized August when she saw him in court. Soon after his arrest he denied to one of the witnesses that he knew the young lady who had been assaulted, and the witness, who was the sheriff of Sauk county, thought he denied ever having been at North Freedom.</p> <p>The testimony on the part of the defense was almost entirely directed' to proving an alibi. It appears that August had left his home in Sauk county a year or two before the alleged offense was committed, and it was not definitely known where he was most of the intervening time. During such time he attempted to commit suicide in the city of Madison, by shooting himself. For several months thereafter no one in Sauk county seems to have known anything about him. However, he went to Watertown, in this state, arid in October, 1889, was employed in a hotel in that city under the assumed name of Arthur Lewis, and continued in such employment until his arrest on this charge, about two weeks after Rosa was assaulted. His father, and his brother and sister, who were members of his father’s family, testified that August was not at his father’s house February 7th, as testified to by Barbara Meyer. Thirteen witnesses were examined for the defense concerning August’s presence in Watertown on that February 7th, and each of them testified, more or less positively, to seeing him there on that day, engaged in the performance of the duties of his employment. It appears that, as the railroads ran at that time, it required from 7 o’clock p. m. until midnight to go from Watertown to North Freedom. The time required for returning to Watertown does not appear.</p> <p>The testimony is very voluminous. About forty witnesses were examined on the trial, and the cross-examinations of many of them on both sides were searching and protracted. The above statement is but an outline of the testimony, but is believed to be sufficient to give a correct idea of the respective theories of the prosecution and defense, and the general features of the case. Some further statement of the case, including the errors assigned for a reversal of the judgment, will be found in the opinion.</p> <p>contended, inter alia, that the verdict should have been set aside because of the alienage of the juror Briggs. R. S. sec. 2524; People v. Beese, 4 Am. Or. Rep. 527; Lamphier v. State, 70 Ind. 317; Bead v. State, 12 S. W. Rep. 413; Pearey v. Mieh. Mut. L. Ins. Go. Ill Ind. 59; State v. Vogel, 22 Wis. 471; Jeffries v. Banddll, 14 Mass. 205; Watts v. Buth, 30 Ohio St. 32; Sehumalcer v. State, 5 Wis. 324; Hill v. People, 16 Mich. 351. The trial court erred in permitting the impeachment of Adam Schus-ter, as a witness for the accused, by the testimony of the witness Sweet, upon collateral and irrelevant matters drawn out upon cross-examination for the purpose of impeachment. 1 Greenl. Ev. secs. 449, 462; Austin v. Austin, 45 Wis. 523; Balcer v. State, 69 id. 32; Humphrey v. State, 78 id. 569; Hughes v. Bogers, 8 Mees. & W. 123; Stolees v. People, 53 N. T. 164; Da/oies v. Keyes, 112 Mass. 436. The court erred also in permitting the counsel for the state to examine one of their own witnesses in the manner of an ordinary cross-examination for the purpose of discrediting him. 1 Greenl. Ev. secs. 442-445; Gomm. v. Welsh, 4 Gray, 535; Scmehez v. People, 22 N. T. 147; Babeoelc v. People, 13 Col. 5Í5. It was an abuse of discretion to refuse to hear argument on the motion for a new trial upon the minutes. Ohms v. State, 49 Wis. 415; Mcmnmg v. State, 79 id. 178.</p> <p>argued, among other things, that the hearsay evidence in the affidavit of the attorney was insufficient to impeach the verdict. The juror’s own affidavit or deposition should have been taken. R. S. sec. 4101; Brown v. La Crosse C. G. L. (& C. Go. 21 Wis. 51. The alienage of a juror, while it may be a good ground of challenge, is not a sufficient ground for setting aside the verdict in a cause not capital, even though the fact was unknown to the accused when the jury was impaneled. State v. Yogel, 22 Wis. 471. A cause of challenge not discovered untii after the verdict, is not per se a ground for new trial. This doctrine has been held where jurors were aliens: Brown v. La Crosse C. G. L. c& C. Co. 21 Wis. 51; LLollansworth v. Dtiane, 4 Dali. 353; State v. Quarrel, 2 Bay (S. 0.), 150; Presbury v. Comm. 9 Dana (Ky.), 203; Jones v. People, 2 Col. 351; Chase v. People, 40 Ill. 352; Mt. Desert v. Cranberry Lsles, • 46 Me. 4'11; Hull v. ATbro, 2 Disney (0.), 147; Thompson <o. Page, 16 Cal. 78. Where a juror was not a citizen of the county or state: Posborough v. State, 43 Tex. 570; Costly v. State, .19 Ga. 614. Where a juror was related to a party wdthin one of the disqualifying degrees: McClellan v. Crofton, 6 Me. 307; Orrne v. Pratt, 4 Cranch C. C. 124; Smith v. Earle, 118 Mass. 531; Baleer v. State, 4 Tex. App. 227. And where a juror was shown to have expressed disqualifying opinions as to the subject matter of the trial: Taylor v. Greely, 3 Me. 204; Kennedy v. Comm. 14 Bush (Ky.), 340; Domain v. State, 7 Ind. 67; Keener v. State,. 18 Ga. 194; Simpson v. Pitman, 13 Ohio 365; State v. Howard, 17 N. H. 171, 198; State v. Shelledy, 8 Iowa, 477. But a cause of challenge not discovered until after verdict may be a ground for a new trial in the discretion of the court. Woodward v. Dean, 113 Mass. 297-8; State v. Boon, 80’N. C. 461; State v. Pilee, 20 N. H. 344. The failure of counsel to inquire into the question of the alienage of the juror amounts to a waiver of the cause of challenge. Jeffries ». Randall, 14 Mass. 205; State v. Patríele, 3 Jones’ Law (N. C.), 443; Tweedy v. Briggs, 31 Tex. 74; People v. Chase, 40 Ill. 352; ' Estep v. Waitress, 45 Ind. 140; Alexander v. Durm, 5 id. 122; Groy v. State, 32 id. 384; State v. Paries, 21 La. Ann. 251; Beale v. State, 20 Ohio St. 228; Wilder v. State, 25 id. 555; Collier v. State, 20 Art. 36; Keener v. State, 18 Ga. 194; State v. Shelledy, 8 Iowa, 477; State v. Fumóle, 17 id. 365.</p>

<p> Vendor and purchaser of land: Rescission: Fraud: Concealment of facts: Confidential relations. </p> <p>Where the purchaser had full knowledge of the situation and value of land, and the vendor resided at a great distance and had no adequate knowledge or means of knowledge on the subject, and the purchaser, without fully disclosing the. material facts respecting such value, having secured the confidence of the vendor, thereby induced him to sell for much less than the real value, upon information given by the purchaser which was partial, misleading, or false as to such true value or any of such material facts, and the case is not barred by laches, the sale will be set aside a.t the option of the vendor. This is especially true where the parties are not on equal footing, and are so related to each other as naturally to inspire or secure confidence.</p>

<p> (1, 8) Promissory notes: Negotiability: Gertainty as to ,amount and time of payment. (8) Security passes on transfer of note. (J--6) Conditional sales: Chattel mortgages: Filing: Constructive notice. </p> <p>1. An agreement subjoined to a note, stating that it is given for a piano the title to which is to remain in the payee until payment, does not render, the note non-negotiable.</p> <p>3. But a note payable in instalments is rendered non-negotiable by a subjoined agreement that in case of default in any payment, or, an attempt to dispose of or remove the chattel for the price of which the note is given, the holder may declare the whole amount due, and may collect the same with ten per cent, damages for expenses of collection, or may take possession of and sell the property to pay the unpaid balance, interest, damages, and costs of sale, and that, if there is a deficiency on such sale, the signer will pay it on demand. Such agreement renders both the amount and time of payment uncertain.</p> <p>3. The transfer of a negotiable note containing an agreement that the chattel for the price of which it is given shall remain the property of the payee until the note is paid, transfers the security as an inci-\ dent to the note, and nothing is a defense to the security which would not be a defense to the note.</p> <p>4. Under sec. 3317, B. S„ a contract for the sale of personal property by the terms of which the title is to remain in the vendor and the possession in the vendee until the purchase price is paid, if signed only by the vendee, is void as to third persons without notice; and the filing thereof is not constructive notice.</p> <p>6. Such a contract is a conditional sale, although it provides for the unconditional payment of the debt. It is not a chattel mortgage, and cannot be filed as such so as to be constructive notice.</p> <p>6. The agent of a company dealing in pianos sold an instrument under a written contract by which the title was to remain in himself until payment of the price. This contract, which was not negotiable, he assigned to his principal, the owner of the piano. He also took from the purchaser negotiable notes containing the same condition as to the title of the piano, and these he transferred to one who knew nothing of his having taken the contract also. Held, that the bona fide holder of the notes was entitled to enforce their payment out of the piano, in preference to the piano company, the as-signee of the non-negotiable contract.</p>

<p> Bill of exceptions: Failure to serve in time: Death of trial judge. </p> <p>Sec. 2877, B. S., does not apply to a case where the trial judge died after the expiration of the time limited for service of a bill of exceptions and before the service thereof; and in such a case this court will not open the default and compel the respondent to accept and stipulate to the proposed bill or submit to a new trial. •</p>

<p> (1) Proof of service of summons: Judicial notice of official character of sheriff. (‡) Assumption of incumbrances by purchaser of land: Mistake: Equity. (S) Homestead: Selection. </p> <p>1. A return of the service of a summons, signed “ M. B., by J. L. R., Deputy Sheriff,” is held to be in due form and to be presumptive evidence that it is correct. The court will take judicial notice that M. B. was Sheriff.</p> <p>3. The grantee of land incumbered by mortgages and a docketed judgment against the grantor, having agreed to pay all incumbrances thereon, cannot, after paying the mortgages, have them declared a lien in his favor prior to the judgment, although when he purchased he knew nothing of the judgment.</p> <p>3. Where the person entitled thereto fails to select his homestead at the time of an execution sale of the land from which such selection might be made, his right will be confined to the legal subdivision which includes his dwelling-house and appurtenances.</p>

<p> Common schools: Contract with teacher by district board: Fraud. </p> <p>1. The fact that the officers constituting a district board signed a contract with a teacher raises the presumption that such contract was authorized by a vote of the board at a meeting thereof, pursuant to sec. 432, R. S.; and the mere fact that the officers were not together when they signed the contract does not tend to disprove that it was so authorized.</p> <p>2. The fact that a teacher employed by a district board was the daughter of one member and the sister of another, she being of full age, does not render her employment unlawful; and the mere fact that other competent persons might’ have been employed for smaller wages is not sufficient proof of fraud to justify the court in declaring the contract invalid.</p>

<p> Highways: Powers of committee of county board. </p> <p>Under secs. 1300,1302, R. S., a committee of the county board cannot mate an order laying out a highway, but must report its determination to the board, and the hoard itself must make the order.</p>

<p> Railroads: Injury to passenger: Contributory negligence: Jumping from train. </p> <p>A passenger on a freight train wished to get off at a station where the train did not usually come to a full stop but merely slowed up to allow passengers to alight. Finding that the train had passed the station and was increasing its speed, he jumped from the platform of the caboose, and was killed. Held, that he was guilty of contributory negligence which would preclude a recovery for his death, even though the railroad company was negligent in the management of the train.</p>

<p>APPEAL from the Circuit Court for Iowa County.</p> <p>Action upon a promissory noté for $200 executed by the defendants on April 25,1887, and payable to one Ole Kit-tleson, one year after date, with interest at eight per cent. Indorsements upon the note were as follows: “ April 25, 1888, $16.00; April 25, 1889, $16.00; Pay to the.order of John F. Grace. Ole Kittleson.” The plaintiff testified that the note was assigned to" him in February, 1890. The action was commenced in March, 1890.</p> <p>The defense set up in the answer was that on April 25, 1888, one Anderson, acting as the agent of the payee, Kit-tleson, had extended the time of payment of the principal for one year; and that on April 2, 1889, the said agent, in consideration of the agreement of the defendants to keep the money another year, and other and further valuable consideration, extended the time of payment of the note until April 25, 1890.</p> <p>The evidence given on the trial will sufficiently appear from the opinion. There was a verdict in favor of the defendants,-and from the judgment thereon the plaintiff appealed.</p> <p>contended, inter alia, tbat since the note bears interest at the rate of eight per cent, it was required by sec. 1688, E. S., to be in writing, and therefore parol evidence was not admissible to vary, contradict, or change its terms. Mott v. Bichtmyer, 57 N. Y. 50; Brake v. Seaman, 97 id. 230; Holcomb <o. Mun-son, 103 N. Y. 682; Teal v. Bilby, 123 U. S. 572; Lanitz v. King, 93 Mo. 513; Atlee v. Bartholomew, 69 Wis. 43, 51; Abell v. Munson, 18 Mich. 306; Cook v. Bell, id. 387; Has-brouck v. Tappen, 15 Johns. 200.</p>

<p>APPEAL from the Circuit Court for La Crosse County.</p> <p>In 1889 the defendant company erected a packing house near the city of La Crosse. It contracted with the firm of Nicholas Bros., who were builders of boilers and ironwork in La Crosse, to deliver to it, free on board the cars at the works of the firm in La Crosse, a boiler, together with certain tanks,• coolers, and vats to be used in such packing house. The same were so delivered and used, and were attached to said building so as to become a part of the freehold. The company paid the firm for the articles so furnished the full contract prices.</p> <p>Nicholas Bros, purchased materials of the plaintiffs in Chicago to be used, and which were used, in the construe•tion of such boiler, tanks, etc., amounting to $1,767, about. $917 of which sum remains unpaid. Within sixty days after furnishing such materials the plaintiffs gave notice to the defendant company that they claimed a subcontractors’ lien on such building and the land upon which it was erected, for such balance. The plaintiffs also filed a claim for such lien in the proper office, and commenced this action to enforce the same within the times required by stat-' nte.</p> <p>The court found the above facts, and that the proceedings to enforce the lien were regular; also, that when they sold and furnished such materials to Nicholas Bros, the plaintiffs were ignorant that they were entitled to a lien on the property of defendant therefor, and that, when the defendant paid Nicholas Bros, for the articles purchased of that firm, it had no notice that the firm had purchased materials of the plaintiffs as above stated. Upon these facts the court gave judgment for plaintiffs enforcing a lien upon defendant’s property, as claimed, for the unpaid balance due the plaintiffs from Nicholas Bros., and interest thereon, together with the costs of the action. Defendant appeals from the judgment.</p> <p>They contended, inter alia, that there was no evidence to justify a finding that Nicholas Brothers furnished the articles upon an understanding that they were to go into this building or into any building whatever. Fsslvnger v. Puebner, 22 Wis. 632; Jones, Liens, secs. 1329, 1330. And the finding that the materials were sold and delivered by the plaintiffs to Nicholas Brothers to be used in the contraction and equipment of defendant’s building is not sustained by the evidence. The plaintiffs, having no knowledge of the building and being ignorant of any right to a lien when the sale was made, cannot be entitled to this judgment against the defendant. Poole v. Union Pass. R. Go. 16 Atl. Rep. (Pa.), 736. Ch. 333, Laws of 1889, is not a valid enactment. Hunger v. lenroot, 32 Wis. 550; Myer v. Berlcmdi, 39 Minn. 438, 446; Pallv. Panics, 79 Wis. 229; John Spry Lumber Go. v. S. S. P. L. ds T. Go. 77 Mich. 199; Cooley, Con. Lim. 36, 37,174, 353, 385; Osborn v. Part, 24 Wis. 89; Sedgwick, Const, of Stat. & Con. Law, 128 n; Bcvrdwell v. Oollins, 44 Minn. 97, 102; Munn v. Illinois, 94 U. S. 113, 124; Thorp v. R. ds P. R. Go. 27 Yt. 140, 143, 153; Pibrell v. Morris, 15 S. W. Rep. (Tenn.), 87, 90; In re Jacobs, 98 N. Y. 98; People v. Man, 99 id. 377; Penry v. Rice, 18 Mo. App. 497; Stewart v. Wright, 52 Iowa, 335. If that law is upheld, the plaintiffs are not entitled to a lien under it. The contract between them and Nicholas Brothers was made in Illinois, and the goods were unconditionally delivered in that state, upon express agreement that payment was to be made there. Stout v. Sawyer, 37 Mich. 313; Birmingham Iron Foundry v. Glen Gove S. M. Go. 78 N. Y. 30.</p> <p>They argued, among other things, that the courts cannot require other conditions for a lien than those prescribed in the statute. Enclcing v. Simmons, 28 Wis. 272; Ghase v. Whiting, 30 id. 544; Purtell v. Chicago F. ds P. Go. 74 id. 132. The fact that the plaintiff made the contract with. Nicholas Brothers and delivered the material to them in Chicago does not affect their right to a lien. Gaty v. Casey, 15 Ill. 189; St. Louis Bridge <& Const. Co. v. Memphis, C. dé If. W. B. Co. 72 Mo. 664; Fagan v. Boyle I. M. Co. 65 Tex. 324,333. Oh. 333, Laws of 1889, became a part of all the contracts, and the defendant therefore agreed with Nicholas Brothers that all subcontractors who should comply with the law should have liens upon the building and the land for the amount of their claims. Streulel v. M. dé M. B. Co. 12 Wis. 67,74; Smith v. Cleveland, 17 id. 556,568; Gurney v. Walsham, 16 E. I. 698. The principle of that law has been frequently passed upon by the courts, and (except in Michigan) the constitutionality of the law has been affirmed wherever the question has been raised. Colter v. Frese, 45 Ind. 96; Merritt v. Pern-son, 58 id. 385; Crawfordsville v. Johnson, 51 id. 397; Andis v. Davis, 63 id. 17; Delahay v. Goldie, 17 Kan. 263; Clough v. McDonald, 18 id. 114; Shelldbarger v. Thayer, 15 id. 619; Sodini v. Winter, 32 Md. 130; Trensoh v. Shryoele, 51 id. 162, 173; Henry & Coatsworth Co., v. Evans, 97 Mo. 47; Laird v. Moonan, 32 Minn. 358, 362; Bardwell v. Mann, 46 Minn. 285; Donalvy v. Clapp, 12 Cush. 440; Ballou v. BlacJc, 21 Neb. 131; S. C. 17 id. 389; White v. Miller, 18 Pa. St. 52, 54; Boanolce L. dé Imp. Co. v. Karn, 80 Va. 589; BoanoJce L. dé Imp. Co. v. Snead, id. 589; S. V. B. B. Co. v. Miller, id. 821,831; Jf. W. B. Co. v. Howison, 81 id. 125,129; Jones, Liens, secs. 1304,1305; Munger v. Lenroot, 32 Wis. 541. In the construction of the statute, nothing in conflict with the constitution can be imported into it. It must be construed in such a way as to give it force rather than to nullify it. Cooley, Con. Lim. 184; Kerrigan v. Force, 68 N. T. 381; Sage v. BrooMyn, 89 id. 190, 196; Ogden v. Saunders, 12 Wheat. 270; Palms v. Shawano Co. 61 Wis. 211, 217; State ■ex rel. Grundt v. Alert, 32 id. 403, 406; Schroeder v. Galland, 134 Pa. St. 277.</p>

<p>APPEAL from tbe Circuit Court for La Crosse County.</p> <p>This action was commenced August 30, 1888. Tbe complaint alleges, in effect, that in tbe latter part of August or tbe first part of September, 1879, tbe defendant was engaged in tbe erection and .construction of a telegraph line from Caledonia Junction to and into the village of Caledonia, in Houston county, Minn., and that while so engaged it negligently, carelessly, and wrongfully dug a bole five or six feet deep in one of tbe public streets of said village, and left tbe same open and unguarded during a dark night, and by reason thereof tbe plaintiff, then about eight years of age, fell into tbe "same, without any fault on bis part, and was severely injured, for which be claims damages.</p> <p>Tbe answer consists of denials, and admits,' in effect, that during tbe latter part of August or tbe first part of September, 1879, it caused a line of' telegraph to be erected from Caledonia Junction, in said county of Houston, to and into said' village, but alleges that said line was erected by tbe Chicago, Clinton & Dubuque Eailroad Company under and pursuant to a contract entered into by and between the defendant and said company; that the manner and mode of doing said work, as agreed in said contract, and of erecting said line of telegraph, was wholly and entirely under the control of said railroad company; and that the erection of said line was, at the time of the accident, under the control of said railroad company.</p> <p>At the close of the plaintiff’s testimony the court granted a nonsuit, and from the judgment entered thereon the plaintiff appeals.</p> <p>They contended, inter alia, that whenever work of any kind is done in or upon a public highway, the author or prime mover in having it doné cannot escape liability which results from the doing of the work authorized, even though it be done by a contractor. He who causes such work to be done, and which may be the cause of injury if not guarded against, must at his peril see that no obstruction is made or permitted to exist, rendering such highway dangerous. Woodman v. Met/ropolitan B. Go. 149 Hass. 335; Filis v. Sheffield G. O. Go. 75 Eng. C. L. 767; Congreve v. Smith, 18 N. T. 79; Greed v. Jlo/rtmann, 29 id. 591; Lowetl v. B. dk L.B. Go. 23 Pick. 24; Picka/rdv. Smith, 100 Eng. C. L. 470; Gray v. Pullen, 117 id. 970; JIundhausen v. Bond, 36 Wis. 29; Bobbins v. Ghioago, 4 Wall. 657; Whitney v. Clifford, 46 Wis. 145; Storrs v. Utica, 17 N. T. 104; Gircleville v. Feuding, 41 Ohio St. 465; Brusso v. Buffalo, 90 N. T. 679; Water Go. v. Wa/re, 16 Wall. 566; Palmer v. Lincoln, 5 Neb. 136. If the telegraph company had a right to give directions or make changes during the progress of the work which caused the obstruction, or did so direct, then the relation of master and servant existed, and the company is liable. Li/nnehans v. Bollins, 137 Mass. 123; Bailroad Go. v. Fanning, 15 Wall. 649; Bracket v. Lubke, 4 Allen, 138.</p> <p>They cited Hilliard v. Richardson, 3 Gray, 319; Gorham v. Gross, 125 Mass. 232, 240; Conners v. Hennessey, 112 id. 96; Blake v. Ferris, 5 N. Y. 48; Hexamerv. Webb, 101 id. 377; McCaf-ferty v. S. B. <S¡ P. M. P. Co, 61 id. 178; Hughes v. Railway Co. 39 Ohio St. 475; Tiffin r. McCormack, 34 id. 642; Clarlc v Fry, 8 id. 359; Butler v. Hunter, 7 Iiurl. & N. 826; Mersey Books Trustees v. Gibbs, 1 Eng. & Ir. App. 93; Fd-mundsonv. Pittsburgh, M. & F.R. Co. Ill Pa. St. 316; Cuff v. Newcm'k (& N. F. B. Co. 35 N. J. L. 17; Ryan v. Curran, 64 Ind. 354; Scammon v. Chicago, 25 Ill. 424; Chicago City R. Co. v. Hennessey, 16 Ill. App. 153; Kepjoerly ro. Rams-den, 83 id. 354; Plumb v. Kansas City, 84 Mo. 112; Fastonv. E. (& H. A. R. Co. 59 Me. 520; Callahan v. B. & M. R. R. Co. 23 Iowa, 562; Wright v. Holbrook, 52 N. H. 120; Atlanta ds F. R. Co. v. Kimberley, 87 Ga. 161.</p>

<p>(1,2) Instructions to jury: Fraudulent conveyance: “ Preponderance' of testimony.” (8) Appeal: Printed case.</p> <p>1. A stock of goods belonging to a partnership was sold under execution to certain creditors who afterwards sold it to a brother of the partners. Subsequently the goods were seized and sold on executions of other creditors against the partners. In an action by the brother against the sheriff for the conversion of the goods by the latter seizure, an instruction, thrice reiterated, to the effect that if the plaintiff bought the goods in part with the funds of the partners his purchase was fraudulent, is held erroneous; and the error was not cured by the statement, elsewhere in the charge, that the question of good faith was involved, and that if plaintiff bought the goods in part with the funds of the partners, for the purpose of holding them until they could safely take them in then own names, it might be a fraud on their creditors.</p> <p>2. A charge that preponderance of the testimony “is an expression that may mean considerable, and it may not mean much, depending on how you understand it; but in the final analysis it means this: What do you think about it, having your minds guided by the evidence?”— is criticised as giving too elastic a definition and as tend-, ing to minimize the importance of the rule.</p> <p>8. Where the appellant urges that the verdict was against the evidence, a full statement of the evidence may properly be inserted in the . printed case.</p>

<p> ¡Intoxicating liquors: Revocation of license: Sufficiency of complaint: Preservation of evidence. </p> <p>1. In a proceeding under sec. 1558, It. S., as amended by ch. 174, Laws of 1881, to revoke a license, a complaint charging generally a violation of a certain ordinance which includes several distinct offenses, and charging also the selling of liquor to minors, without specifying the time when the offense was committed, is held fatally defective.</p> <p>[2. Whether the statute requires that in such a proceeding the evidence ' he reduced to wilting, so that it can be included in the return to a ' writ of certiorari if one is issued, not determined.]</p>

<p>APPEAL from the Circuit Court for Claris County.</p> <p>This action was brought to recover an unpaid balance due for forty-seven, car-loads of wheat and six car-loads of . oats, alleged in the complaint to have been sold and delivered by the plaintiffs to all the defendants. Archer, . Ming, and Youmans answered a general denial, except as to the alleged copartnership of plaintiffs. By consent of parties, the cause was referred to be heard, tried, and determined by the referee. A trial was had, and thereafter the referee filed his findings of fact, which are to the effect that the plaintiffs sold and delivered the wheat and oats in question to the defendants Colburn and Hewett, who are indebted to the plaintiffs $4,466.50 on account thereof; but that neither of the defendants Archer, Ring, or Youmms purchased any of such grain, and neither of them is indebted to plaintiffs therefor in any sum whatever. These findings were confirmed by the court. In accordance with the conclusions of law filed by the referee, and also confirmed by the court, judgment for the plaintiffs was entered for such unpaid balance due for the grain, and for costs, ■against the defendants Colburn and Hewett, and against the plaintiffs and in favor of the defendants Archer, Ring, 'and Yomnms for costs. The plaintiffs appeal from that "portion of the judgment which is in favor of the defendants last above named.</p> <p>They contended, inter alia, that the reservation by the referee of objections made to the admissibility of evidence was such error as to require a reversal of the judgment. PecJc v. YorJes, 47 Barb. 131; Broohs v. Christopher, 5 Duer, 216; Clussman v. Merlcel, 3 Bosw. 402; McKnight v. Dunlop, 5 N. Y. 537, 545; Sharpe v. Freeman, 45 id. 802; Lathrop v. Bramhall, 64 id. 365.</p>

<p> Estates of decedents: Presentation of claims: Trusts and trustees: Parties. </p> <p>1. The complaint alleges that S., as administrator of the estate of B., sold land of the latter, nominally to another person but in reality to himself, in fraud of the heirs of B.; and that after the death of S. the land was again sold and the proceeds were received by his testamentary trustee. Held, that upon such facts the said testamentary trustee held the proceeds of the latter sale in trust for the heirs of B., and that said heirs might main tain an action for an accounting, although no claim in respect thereto had been presented against the estate of S.</p> <p>2. In such action the cestuis que trusient under the will of ¡3., though not residents of this state, must be joined with the trustee as par- • ties defendant. Swift v. State L. Co. 71 Wis. 476, distinguished.</p>

<p>Railroad corporations: Increase of capital stock: Enforcing stock sub-scripiions: Assessments.</p> <p>1. A railroad corporation, organized under ch. 87, E. S., may increase its capital stock in the manner prescribed by sec. 1826, without prejudice to its right to enforce prior stock subscriptions.</p> <p>2. Such a company, as soon as incorporated, may make assessments on unpaid stock subscriptions, without regard to the aggregate amount of capital stock subscribed or the sums paid thereon. Anvil Mining Co. v. Sherman, 74 Wis. 226, distinguished.</p>

This is an action of ejectment to recover eighty acres of land described, brought by one claiming under tax titles. The complaint is in the usual form. ■ The answer consists of a general denial, and pleads the statutes of limitation to the plaintiff’s tax deeds.

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

<p>APPEALS from the Circuit Court for Portage County.</p> <p>Replevin for a large quantity of pine lumber, alleged' to be of the value of $7,181.67, and which it is alleged the de-fenclant -wrongfully took froui the possession of the plaintiff on November 2, 1889, and has ever since unlawfully detained, to the plaintiff’s damage $2,000.</p> <p>The defendant, both as a defense and as a counterclaim, alleged in substance that on May 23,1889, the firm of A. P. Vaughn & Co. made a voluntary assignment to him, and that as their assignee he immediately took possession of the lumber in question as the property of .said firm, and has ever since held possession thereof; that at the time of the assignment said lumber was in the possession of Vaughn .<& Co., and for more than a year had constituted a part of their stock in trade as lumber dealers; that the plaintiff claims to own the lumber by virtue of a certain agreement between himself and Vaughn & Co., made December 27, 1887,— the terms of which are sufficiently stated in the following opinion; that after the execution of that agreement the lumber was taken by Vaughn & Co. to' their lumber yard in the city of Stevens Point, and became a part of their stock in trade, with the knowledge and consent of the plaintiff; that the plaintiff permitted Vaughn & Co. to make sales from said lumber, and that they applied a part at least of the proceeds therefrom upon their indebtedness to the plaintiff; that Vaughn & Co. did not file with the city clerk of Stevens Point any statement of the sales so made by them or the amounts to be applied on said indebtedness, nor of the total valuation of the stock added, as required by ch. 241, Laws of 1887; that more than one year had elapsed from the making of said contract, before said assignment, and any lien upon the lumber which the plaintiff may have had by virtue of said contract had ceased and become null and void; and that said contract, so far as the same constituted a lien on the lumber, is void and fraudulent as to the creditors of Vaughn & Co., who are represented by the defendant as assignee, because Vaughn & Co. did, with the consent of the plaintiff, máke sales from the lumber a¡pd used a part of the proceeds in their business without paying the same upon their indebtedness to the plaintiff. The prayer of the answer is that the contract, so far as it constituted a lien'on the lumber, be set aside and canceled as fraudulent and void as to the creditors of Yaughn & Co., and for general relief.</p> <p>The plaintiff replied, denying that at the time of the assignment by Yaughn & Co. the property was in their possession, and alleging that it was in the possession of the plaintiff and that the defendant then took it from his possession. He admits that the lumber had been kept in the lumber yard of Yaughn & Co., but alleges that it had always been piled and kept separate and distinct from their general stock in trade, and that it never became a part thereof. He also denies that he ever permitted Yaughn & Co. to make sales and apply any part of the proceeds for their own benefit.</p> <p>The issue raised by the counterclaim and reply was tried by the court, which found as facts that at the time of the making of the assignment by Yaughn & Co. the lumber was in their possession; that on the day of such assignment, but after the filing of the papers therein, the plaintiff took possession of the lumber by marking it, and that immediately thereafter the defendant, as assignee, took possession thereof, as being the property of Yaughn & Co.-, and has since held the same; that the contract of sale from the plaintiff to Yaughn & Co., containing the condition that the title and right of possession should remain in the plaintiff until the purchase price was fully paid, was duly filed in the office of the city clerk of Stevens Point on April 16, 1888; that prior to April 1, 1888, the lumber had been placed in the lumber yard of Yaughn & Co., but .that it had at all times been kept wholly separate from their general stock in trade; that there was no agreement between the plaintiff and Yaughn & Co. by which said firm might use any part of the proceeds of the sales of said lumber for their own benefit, and that the plaintiff never knew of or consented to any such use; that of the purchase price of the lumber there remained due to the plaintiff at the time the action was commenced, the sum of $15,661.47, which is still unpaid.</p> <p>As conclusions of law the court held that the contract between the plaintiff and Yaughn & Co. was a conditional sale of the lumber, and not a chattel mortgage thereof.; that the legal title to the lumber remained in the plaintiff; that the conditions of the sale had never been complied with; that the contract of sale was not fraudulent or void as to the assignee or creditors of Yaughn & Co.; and that the defendant was noil entitled to* any relief.</p> <p>A jury having been impaneled to assess the plaintiff’s damages, the court directed a verdict to the effect that the plaintiff is the owner of the property; that the defendant unlawfully detains the same; that the value of the property is $7,208.41; and assessing the plaintiff’s damages by reason of such detention at the sum of six cents. Erom the judgment entered upon such verdict in favor of the plaintiff, the defendant appeals. The plaintiff also appeals from so much thereof as gives him but six cents damages.</p> <p>They argued, among other things, .that the contract is a bill of sale, not a mortgage. W. W. Kimball Go. v. Mellon, 80 Wis. 133; Lillie v. Bunbar, 62 id. 198; Bed Wing Mfg. Go. v. Moe, id. 240; Bawson Mfg. Go. v. Richards, 69 id. 643; Thomas n. Richards, id. 671; Mershon v. Mooers, 76 id. 502; Chitty, Cont. (10th Am. ed.), 407, and note; Liekbarrow v. Masony 1 Smith’s L. 0. (8th ed.), 1159; 1 Benj. Sales (Corbin’s ed.), sec. 425; E. S. sec. 2317; lla/rkness v. Russell, 118 U. S. 663; 29 Cent. L. J. 27; 6 Lawson, Eights & Eem. sec. 3076; Jones, Chat. Mortg. sec. 26; Brewster n. Baker, 20 Barb. 364; Grant v. 8himner, 21 id. 581; Frank v. Batten, 1 ET. Y. Supp. 705; Me Comb v. Donald’s Adm’r, 82 Ya. 903; CL Aultman da Co. v. Olson, 43 Minn. 409; Bussell v. Harkness, 4 Utah, 197; Dearborn v. Baysor, 7 Pa. Oo. Ct. Pep. 373; Pate v. Oliver, 104 1ST. 0. 458; Fleury v. Tufts, 25 ILL App. 101. Conditional sales of merchandise with the vendee in possession and allowed to sell in due course of business and apply the proceeds to the vendor’s debt, are held valid, as against the assignee and creditors, as to goods remaining, in Lewis v. MoOdbe, 49 Conn. 141; Arnúngton v. Houston, 38 Yt. 448; Burbcmk v. Crooker,73 Mass. 158; Cole v. Mann, 62 ET. Y. 1; Baring v. Gafin, 18 Atl. Pep. (Conn.), 266-272; Wheeler v. F. H. W. Co. 16 id. 393. The unlawful detention by the assignee' commenced on May 23, 1889, and under the circumstances no formal demand by the plaintiff was necessary. Oleson v. Merrill, 20 Wis. 462; Wells, Peplevin, secs. 846, 352, 359; Mitchell v. Williams, 4 Hill, 16; Holbrook v. Wright, 24 Wend. 169; Merriam v. Lynch, 53 Wis. 82; Kiefer v. Carrier, id. 404; 5 Am. & Eng. Ency. of Law, 528b; Cooley, Torts (2d ed.j, 531; Badger v. Batavia Pa/per Mfg. Co. 70 Ill. 302; Woodis v. Jorda/n, 62 Me. 490; Fdmundson v. Brie, 136 Mass. 189.</p> <p>They contended, inter alia, that the instrument under which plaintiff claims is a chattel mortgage and void-as to the creditors of Yaughn & Co. Anderson v. Patterson, 64 Wis. 557; Winchester W. W. Mfg. Co. v. Carman, 109 Ind. 31; Musgat v. Pumpelly, 46 WisT 660; Bouvier, Law Diet. tit. Sale ; Bunn v. Yalley L. Co. 51 Wis. 376; Bockwell v. Humphrey, 57 id. 410; Jones, Chat. Mortg. sec. 13; Baldwin v. Crow, 86 ETy. 679. The clause reserving title is repugnant to the first or granting clause of the instrument, and is therefore void. Green Bay ds M. Canal Co. v. Hewitt, 55 Wis. 97; In re Ortmcm, 45 ET. W. Pep. (Mich.), 63; 2 Parsons, Cont. (6th ed.), 513.</p>

<p>Contracts: Sale of lumber: Words “average quality ” construed.</p> <p>A firm of lumber dealers contracted to sell, for $12 per M, one million feet of strips out of the strips then in pile in their yard, “ to be of aver- ’ age quality with the six cars heretofore shipped ” to the purchasers “ as sample of the strips hereby sold.” The sample cars contained five different grades of strips. In view of other provisions of the contract (stated in the opinion), and in view of the market price of the different grades as compared with the contract price, it is held that the words “ to be of average quality,” etc., did not mean that the proportionate quantity of each grade, as contained in the sample cars, should be delivered under the contract, but merely that the strips should be so assorted or culled that those delivered should equal in quality those contained in the sample cars, without reference to the proportionate quantity of each grade.</p>

<p> Fraud: Evidence: Tax titles: Settlement of litigation. </p> <p>In an action to set aside a quitclaim deed and the transfer of tax certificates and the tax deeds issued thereon, on the ground that they had been procured by false and fraudulent representations made by defendants in negotiations for the settlement of certain litigation, ■ , findings of the trial court to the effect that there was no fraud or misrepresentation are held to be sustained by a preponderance of the evidence.</p>

The defendant was convicted in justice’s court of having, on September 20, 1887, at the city of Appleton, in the county of Outagamie, Wis., kept a pharmacy store or shop for retailing, compounding, and dispensing drugs, medicines, and poisons, and, not being and not having in his employ a registered pharmacist, of having sold at the time and place named drugs, medicines, and poisons, contrary to the provisions of ch. 460, Laws of 1887.

EEPOETED from tbe Circuit Court for Manitowoc County. Defendant was convicted in tbe circuit court of Manito-woc county of having killed a wild duck in said county on tbe 24th day of May-, 1891, in violation of sec. 1, cb. 351, Laws of 1891, upon tbe complaint of one Hinrichs.

Eeplevin to recover possession of 4,434 half-barrel staves, 822 pieces of half-barrel heading, and 2,869 quarter-barrel, staves, taken and detained by defendant in two freight-cars at the railroad depot in Greenwood, Clark county. Both parties claimed the title to the disputed property by purchase from Stafford Bros., who made the staves. They had been made during the winter of 1890-91, and hauled to the depot grounds, and there piled.

Action by the respondent to recover of appellant a balance of $12,767.95, which is alleged to have been found due to Lmcoln county from Oneida county by the committee appointed to adjust and settle the property and indebtedness of the two counties under ch. 411, Laws of 1885, as amended by ch. 153, Laws of 1887, Said first mentioned act created the county of Oneida out of a part of the territory of Lmcoln county.

The facts are sufficiently stated in the opinion. They contended, inter alia, that reciprocal admissions having been made, the defendant was bound by the stipulation, in the absence of fraud or gross mistake. 1 Greenl. Evi. 186; 1 Am. & Eng. Ency. of Law, 955; 2 Whart. Evi. 1184; Hefferman v. Burt, 7 Iowa, 320; Wilson v. Spring, 64 Ill. 14.

The case is sufficiently stated in the opinion. They cited Merrill They contended that this case is unlike that of Streissguth v. Reigelman, 75 Wis. 212, in that it does not here appear that the affiant had not legal .evidence as the source of his information. The “ sworn statement of account ” may have been sworn to by the defendants. Even if sworn to by the plaintiff it might have had.an evidentiary character. Howell v. Kingsbury, 15 Wis. 272.

<p> Railroads: Injury to employee by derailment of car: Duty to keep tracks free from snow, etc.: Evidence: Instructions. </p> <p>1. It is the duty of a railroad company to its employees to keep its track free from obstructions, such as ice, snow, and rubbish, which endanger the safety of those operating the road. Cole; C. J., is of the opinion that in this latitude the company is bound to anticipate snow-falls in March, and should keep its track in such a condition that a light fall (such as two inches) would not render it dangerous,</p> <p>2. In this case, the defendant's yardmaster having been injured by the ■ derailment of an empty box car upon which he was riding in the yard, the testimony of witnesses who examined the track soon after the accident that at the point where the car left the rail there was considerable ice, dirt, snow, and chaff, which came up to and between the flanges of the rail and pretty close to the top of the rail, is held to warrant a verdict to the effect that the injury was caused by defendant’s negligence in that respect.</p> <p>3. It being alleged that the company was negligent in allowing the spaces between the tracks in the yard to become filled with snow and rubbish, but it not appearing that the snow piled between the tracks contributed in any way to the accident, it was error to re-, fuse to instruct the jury that they could not find the defendant liable by reason of such piles.</p>

The action is to recover damages for the alleged negligence of defendant company, resulting in the death of Thomas Hesting, the plaintiff’s intestate. The defendant owns and operates a railroad extending from Red Cedar Junction, northerly, through Menomonie, to Cedar Falls, Wis. Rear Menomonie a spur track leaves the main line on its west side, and runs up quite an ascent to a brick yard. The course of this spur track is circular, and it is one mile and a half in length.

Action to foreclose a mortgage. The appeal is from an order denying the petition of the defendant G. Aultman They argued, inter alia, that the admissions and declarations of an agent are not evidence of his agency, unless brought home to the alleged principal. Baeon v. Johnson, 56 Mich. 182; Davis v. Henderson, 20 Wis. 520; Stringham v. St. Nicholas Ins. Go. 4 Abb. Ct. App.

• This is an action for damages sustained by reason of the death of Neis B. Johnson while in tbe employ of tbe defendant as brakeman on its road between Portage and La Crosse, at Tomah, between 9 and 10 o’clock on the evening of April 6, 1889.

The action is for the reasonable value of services performed by respondent as inspector of watches for appellant at Baraboo, Wis., from July 21, 1888, to August 1, 1889.

Action to recover the consideration paid by the plaintiff for a threshing machine which, it is alleged, failed to fulfil the representations and warranty of the defendant with respect thereto. The facts will sufficiently appear from the opinion. There was a verdict in favor of the plaintiff, and from the judgment entered thereon the defendant appealed.

Conrad Becker was charged in the municipal court of Dane county with a violation of the excise laws, and was tried for and convicted of such offense in August, 1888.

The facts are sufficiently stated in the opinion. They contended, inter alia, that extrinsic evidence was admissible in order to place the court in the position of the parties at the time of the making of the deed, thus enabling it to identify the premises thereby conveyed, citing, besides cases cited by the court, JPrieger v. Exchange Mut. Ins.

It appears from tbe record that this action was brought to foreclose a land contract executed by B. 0.

This is an appeal from a decision of the county board of • the respondent county in disallowing a part of the bills of plaintiff against defendant for fees as justice of the peace in thirty-four criminal actions tried before him under the provisions of ch. 470, Laws of 1887, popularly known as the “ Tramp Law.” Plaintiff claimed $3:08 for fees in each of these cases, made up of items under the general fee-bill prescribed by sec. 3774, R. S. The county board allowed but • $2…

Tbe action was brought to recover damages for tbe alleged unlawful taking and conversion of a span of horses. Special damages are also claimed for time and money expended by plaintiff in endeavoring to recover tbe horses after tbe same were so taken and converted. Tbe defense is that tbe horses were tbe property of the defendant Mrs. Goldberg, and that tbe other defendants acted for her in obtaining possession of them.

APPEALS from the Circuit Court for- Shawano County. The facts are stated in the opinion. contended, inter alia, that under the agreement Staoy was to pay Green for his services one half of the profits of the business, but that there was no partnership between them. Hicholaus v. Thielges, 50 Wis. 491; Sargent v. Downey, 45 id. 498; Cooper v. Tappcm, 9 id. 361 ; Bates, Partn. secs. 36, 37, 43.

Action to recover damages for personal injuries. The complaint alleges, in effect, that the plaintiff, being without knowledge as a miner, entered the employment of the defendant as a common laborer, and engaged, in connection with others, in tramming or filling cars with ore in a pit or stope known as “No. 4 Stope,” reached by “Number 4 Shaft,” in the mine of the defendant; that the plaintiff had no duty or care with reference to the walls or roof of any part of said mine;…

The facts are sufficiently stated in the opinion. The defendant appeals from an order overruling a general demurrer to the complaint.

In the spring of 1887 plaintiffs purchased a lot of logs of defendants. Such logs were then banked upon Spirit river, a tributary of the Wisconsin river. As they were delivered upon the bank, the .logs were scaled by one Burns, who was employed by defendants. This scale shows 19,038 logs, containing 2,305,397 feet of lumber, which is a trifle over eight and one-fourth logs to 1,000 feet.

This action was brought to recover damages for personal injuries sustained by the plaintiff September 15,1885, while in the employ of the defendant in its steam saw-mill as head sawyer, by reason of the defendant’s negligence.

There is no material dispute as to the facts of the case.. Eespondents were sureties upon the bond of one Edward E. Martin, as guardian of the appellant. Said guardian was appointed and the bond given September 23, 1886. Prior to that date, and from April 23, 1884, one J. 0. Bancroft had been guardian of the appellant. Bancroft, during his guardianship, received about $900 in cash, the property of his said ward, which he invested in the dry goods business.

This action was commenced November 20, 1890, by John La Londe, a resident voter, freeholder, and tax-payer of Barron county, in his own behalf and in behalf of all others of like interest with himself, to restrain the board of supervisors of said county, its successors, servants, and agents,from incurring any expense, or appropriating any money, or letting any contract, for building or constructing a county jail or other county building in said county until after the…

This is an action of ejectment, brought by the original owner against William II. Mead and his wife. In the answer William H. Mead claimed to be the owner of the land under a tax deed executed to him May 29, 1882, on the sale of May, 1879, for the taxes of the year 1878, and pleaded the three-years statute of limitation (sec. 1188, E. S., as amended). The defendant wife disclaimed any interest in the land.

The appeal is from a judgment holding the Merchants’ Insurance Company liable as garnishee of the principal defendant, Garrett Cleary, to whom a policy of fire insurance was issued August 13,1888, by the Fire Insurance Association of London, England, covering certain personal property, a portion of which was destroyed by fire on June 5, 1889.

Prom 1883 to July 9, 1889, the firm of J. & P. Iíagenáh was a dealer in hardware and other merchandise at Reeds-burg, Wis. At the latter date, the firm, being heavily in debt and insolvent, executed a mortgage on its stock of goods to Morse, Winchester, and Keith, who were the owners of an unincorporated bank at Reedsburg, known as the “ Citizens’ Bank,” under which name and style the last-named persons carried on a banking business.

<p>ERROR to the Circuit Court for Ashland County.</p> <p>The plaintiffs in error were tried and convicted in the circuit court of Ashland county on an information charging them with the crime of assault and felonious robbery, under sec. 4315, R. S. The court thereupon sentenced them, respectively, to terms of imprisonment in excess of the maximum term prescribed by the statute. After two unsuccessful petitions to this court for writs of habeas corpus to procure their discharge because of such error (74 Wis. 450; 76 Wis. 366), they brought the case to this court by writ of error. The only error assigned was that the sentences were in excess of the statutory limitation. A bill of exceptions had been theretofore settled and signed by the circuit judge, and deposited with the clerk of the court, but the same was not returned to this court on the writ of error. It was not actually indorsed by the clerk “ Filed ” until after return was made to the writ. This court reversed the judgment of the circuit court because of error in the sentences, and directed that court to pronounce the proper judgment nunc pro tuno. 19 Wis. 651. The circuit court thereupon entered the proper judgment, and resentenced the plaintiffs in error to imprisonment for terms within the statutory limits, to commence on the day the first sentence was pronounced. They thereupon sued out the present writ of error to obtain a review and reversal of such last-mentioned judgment.</p> <p>The bill of exceptions has been returned as a part of the record, and numerous rulings of the court are assigned as grounds for a reversal of the judgment.</p> <p>To the point that the court can look beyond the mere certificates of the presiding officers of the two houses of the legislature, the signature of the governor, and the publication of the act, and may ascertain from the senate and assembly journals whether the bill to create the fifteenth judicial circuit did actually pass both houses, they cited E. S. sec. 4135; Const, art. IY, sec. 10; State ex rel. Muff v. McClel-land, 18 Neb. 236; Bound v. Wis. Cent. R. Co. 45 Wis. 543; Meraole v. Down, 64 id. 323; Gardner v. Collector, 6 Wall. 499, 510, 511; Smithee v. Campbell, 41 Ark. 411; Larrison v. P., A. da JD. R. Co. II Ill. 11; People v. Mahoney, 13 Mich. 481, 491-2; People v. Supervisor, 16 id. 254, 258-9; South Ottawa v. Perhins, 94 U. S. 260; Post v. Supervisors, 105 id. 661; In re Duncan, 139 id. 449; Sutherland, Stat. Const, secs. 41, 52; People ex rel. Pibrdy v. Oomm’rs of Highways, 54 N. Y. 216.</p> <p>to the point that aliens and citizens of other states who commit crimes in this state are subject to punishment according to its laws, cited Wbarton, Confl. of Laws, sec. 819; JJ. S. v. Wiltberger, 5 Wheat. 97; Beg. v. McOafferty, 10 Cos, Cr. Cas. 603.</p>

<p> Constitutional law: Act creating debts or malting appropriations: New judicial circuits. </p> <p>Ch. 488. Laws of 1887, creating the fiftéenth judicial circuit, is a valid law. McDonald v. State, ante, p. 407, followed.</p>

<p>CRIMINAL Law and Practice. (1) Plea in abatement: Issue: Ti'idl. (3, 3, S) Ashland municipal court: Constitutional law: Change' of venue: “ Adjoining circuit:” (4) Indictment or inf ormation. (6,7) Evidence: Declarations of conspirators. (8, 9) Instructions to jury: Shifting of burden of proof: Strength of presumptions. (10,11) Evidence: Declaration by accused in his own interest: Custom of bank.</p> <p>1. To an information for larceny the defendant pleaded in abatement, among other things, that he had not had or waived a legal preliminary examination. The plea was summarily overruled. Held, that this was irregular. An issue upon the plea should have been formed and tried. If, however,' the plea was bad upon its face, the defendant was not prejudiced.</p> <p>2. Even if so much of the act creating the municipal court of Ashland county (ch. 94, Laws of 1889) as attempts to confer on the clerk power to-examine persons applying for warrants, and to issue warrants, is unconstitutional, as an attempt to confer judicial power upon an officer not authorized by sec. 2, art. VII, Const., this does not invalidate the balance of the act.</p> <p>8. The municipal court of Ashland county was in existence from and after the publication of ch. 94, Laws of 1889, and the person appointed to fill the office of judge until the first Monday in January, 1890, was, during that time, at least the judge de facto. In re Burke, 76 Wis. 357, followed.</p> <p>4. Sec. 5, ch. 140, Laws of 1889 (amending sec. 2545, E. S., and providing for the summoning of grand jurors to attend each term of the circuit court unless the judge shall make an order to the contrary), does not affect the provisions of law authorizing prosecutions by information.</p> <p>5. 'Whether ch. 166, Laws of 1889 (providing that when the place of trial is changed because of the prejudice of the judge, the cause shall be sent for trial into an adjoining circuit), is applicable to the municipal court of Ashland county, not determined. If applicable, the fifteenth circuit, including Ashland county and other counties entirely surrounding it, is an adjoining circuit; and a cause may be sent from said municipal court to the circuit court for Ashland county.</p> <p>6. To render the acts and declarations of one conspirator admissible in evidence against another, there must be proof sufficient to establish prima facie the existence of the conspiracy at the time of such acts and declarations.</p> <p>7. A conspiracy to commit larceny does not necessarily end when the crime has been committed, as the stolen property may have to be divided, or some other acts done, as a part of the conspiracy.</p> <p>8. In an action for larceny, a charge that “ after the state had introduced its evidence, it became necessary for the defendant to overthrow the presumption which such evidence has created, and the burden of proof rested upon the defendants to account for the money 'which was proven to have been in their possession,” was erroneous.</p> <p>9. It was error, also, to charge that the possession by defendant of a part of the stolen bills, if proven, would make “ a strong presumption ” against him. It is the province of the jury to determine the strength of a presumption so raised.</p> <p>10. Evidence of a remark made by defendant before the larceny, on exhibiting a roll of bills, was not admissible in his behalf, being a ' declaration in his own interest.</p> <p>11. Evidence that it was the custom of a bank from which the stolen money had recently come, to send out old money rather than new when called upon to ship any considerable amount, and to retain silver certificates as long as possible, was admissible, in connection with other testimony, to raise a probability that new silver certificates found in defendant’s possession were a part of the money stolen.</p>

<p> Attachment: Settlement before levy: Return. </p> <p>After a writ of attachment had been placed in the hands of an officer for service, a settlement was had between the parties, and the officer was directed not to proceed further. He had not taken actual possession of any property under the writ, and had not served any papers on any one. Held that, no action having been commenced and no levy made, the officer would not be required, on defendant’s motion, to make a return of the writ.</p>

<p> Railroads: Injury to employee: Contributory negligence. </p> <p>A gang of men, under the direction of defendant’s foreman, were engaged in pushing a car over an unfinished portion of track which, on one side, was near to a high bank — so near at one place that a person could not pass between a car and the bank. The car had • been started by the other men. The plaintiff, being directed by the foreman to assist in the pushing, took hold of the car at the only available place left by the other men, which was on the side towards the bank. After the car had moved twelve or fourteen feet, he was caught in the narrow place and crushed between the car and the bank. The foreman had not warned him of the danger. The plaintiff testified that he did not know of the narrow place. He had no time for deliberation or to look, ahead after being directed to push. The ground was rough and muddy, and while pushing he looked downward to see where to step. Held, that the jury were warranted in finding that the defendant was negligent both in not providing a safe place for the plaintiff to work and in failing to warn him of the danger, and that the plaintiff was not guilty of contributory negligence.</p>

Action to redeem and compel reconveyance of certain real estate alleged to have been conveyed as additional security only for a pre-existing indebtedness from plaintiff to defendant secured by mortgage upon tbe same premises.

<p> Landlord and tenant: Covenant to repair: Breach: Abandonment by tenant: Liability for rent: Damages: Pleading. </p> <p>1. If no time is specified a lessor who covenants to repair is entitled to a ' reasonable time for performance.</p> <p>2. It was a question for the jury in this case whether the repairs were made within a reasonable time, regard being had to the state of the weather, the condition of the premises, the progress being made by the city in the construction of a sewer by which water under the building had to be drained off, and the possibility of procuring competent workmen.</p> <p>3. It was also a question for the jury whether the lessee was justified in abandoning the premises because the repairs were not made.</p> <p>4. The covenants to repair and to pay rent being independent, a breach of the former did not relieve the lessee from paying rent while he occupied the premises.</p> <p>5. Where the lessee occupied the premises as a hotel and conducted a profitable business therein, he could not claim an entire failure of consideration for the agreement to pay rent.</p> <p>6. The rent to be paid was subject to be reduced by any damages sustained by reason of a breach of the covenant to repair.</p> <p>7. In an action by the lessee to recover damages for a breach of the covenant to repair, the complaint need not allege performance by the plaintiff of all the conditions of the lease on his part.</p>

<p> Ejectment: Tax titles procured by agent: Special verdict: Proof of non-occupancy of land. </p> <p>1. The evidence in this case is held to sustain a special finding by the jury that when certain tax deeds were procured by the defendant he was the agent of the plaintiff for the purpose of selling or caring for the plaintiff’s interest in the land. The tax deeds were, therefore, a fraud upon the plaintiff, and vested no title in the defendant.</p> <p>2. As a general rule, a question for a special verdict should not be framed in the alternative or disjunctive, since the answer to such a question may not necessarily express the unanimous verdict of the jurors. In this case, however, as the testimony which tended to prove that defendant was plaintiff’s agent to care for the land tended to prove that he was agent to sell also, and vice versa, and the jury could not have found that he was agent for one purpose and not for the other, the finding that he was agent “ for the purpose of selling or caring for the plaintiff’s interest in the land ” is held sufficient.</p> <p>3. In ejectment against a tax title claimant who was not in the actual possession of the land, the plaintiff must show that it was unoccupied.</p> <p>4 The special verdict in this case containing no finding of non-occupancy, and there being no general verdict, the judgment for the plaintiff cannot be upheld unless non-occupancy was proved by the uncontroverted evidence.</p> <p>5. It seems to have been understood on the trial that there was sufficient proof of non-occupancy, and in submitting the questions for the special verdict the court said that they involved “ all the controverted facts of the case upon which plaintiff founds his claim.” ■ The defendant made no objection or suggestion at the time. Held, that he cannot on appeal dispute the sufficiency of the proofs of non-occupancy.</p>

<p> Fraudulent conveyances: Court and jury: Evidence: Examination of witnesses: Jurors: Conduct of attorneys. </p> <p>1. The question of intent to defraud creditors in a conveyance by a debtor of his property is peculiarly one for the jury, and a verdict sustaining the conveyance should not be disturbed unless the evidence very clearly establishes the fraud.</p> <p>2. Considerable latitude should be allowed in the examination of witnesses while testifying to particular facts and circumstances tending to show fraud, and the court should not be technical or illiberal in sustaining objections.</p> <p>8. Objections to questiilns as not being proper cross-examination, or as being leading, should be made specifically on those grounds.</p> <p>4. The value of property included in a conveyance alleged to be fraudulent is a material subject of inquiry.</p> <p>6. The question being whether or not a bill of sale to the plaintiff was fraudulent, and he having testified in his own behalf, the defendant should be allowed to cross-examine him fully on the whole case.</p> <p><3. The attorney of the plaintiff’s vendor, who had testified on behalf of the plaintiff to the execution of the bill of sale, might properly be asked on cross-examination what the consideration of the bill of sale was.</p> <p>7. A witness for the defendant testified that, a few days after the execution of the bill of sale and a few days before the property was attached by a creditor, he asked the plaintiff’s vendor what was up and how the thing stood, to which he replied: “They are trying to beat me out. But be quiet! I am going to see who is going to come out ahead.” Held, that the defendant should have been allowed to ask the witness, “Be quiet about what?”</p> <p>8. Plaintiff’s attorneys, being on opposite sides of a case called for trial just before this case, by agreement struck from the panel in that case certain three jurors on each side, so that the six jurors so stricken should be called in this case. Defendant in this case peremptorily challenged three of said jurors, but the other three sat in the case. Held, that it was not error to deny a new trial on that ground, it not appearing that such jurors were partial or unfair or that the defendant was in any way injured.</p>

<p> libel: Sale of paper containing libel: Ignorance of contents: Pleading. </p> <p>A complaint alleging that the defendant -wilfully and intentionally sold and delivered copies of a newspaper containing a libelous article, need not further allege that he knew such paper contained the libel Ignorance of that fact is a matter of defensa</p> <p>See note to this case in 14 L. B. A. SOS. — Eep.</p>

<p>APPEAL from tbe Circuit Court for Douglas County.</p> <p>Action to quiet .title to lands. Tbe facts are stated in tbe opinion. Tbe defendant railroad company appeals from a judgment in favor of tbe plaintiff.</p> <p>They contended, inter alia, that tbe suit in tbe United States court was for wholly different lots and lands, though both that case and this involved, in respect to different estates, the same controversy, namely, whether tbe contract of donation and deed of conveyance made in pursuance of it were valid or void. In this case tbe plaintiff founds bis title to relief solely upon tbe ground that tbe agreement of donation and tbe deed were void. In the suit in tbe United States court tbe complainant (tbe defendant here) based its equity and right to tbe decree upon tbe sole ground 'that said agreement and deed were valid. Tbe decree in tbe latter suit was between tbe same parties, and was made pending this suit and before final judgment was’ rendered in it. Its effect is to conclusively establish tbe validity of tbe agreement and estop tbe parties from ever disputing or litigating that question further in any other court, whenever tbe decree is pleaded or produced in evidence, although tbe particular subject matter of tbe suits be not identical. Duchess of Kingston's Case, 20 Flow. State Trials, 355; 2 Smith’s L. C. 424, and cases cited; Outram v. Morewood, 3 East, 346; Sawyer v. Woodbury, l Gray, 499, 66 Am. Dec. 518; Emmons v. Dowe, 2 Wis. 356, 357; Woodward v. Mill, 6 id. 143, and cases in note; PLeath v. Fracldeton, 20 id. 322, 323; Danaher v. Prentiss, 22 id. Ull-SID; Iowa Go. v. M. P. B. Co. 24 id. 115,116; Amoryv. Amory, 26 id. 152; Shepardson v. Cary, 29 id. 35, 43; Beloit v. Morgan, 1 Wall. 622; Dea^i v. Borch-senms, 30 Wis. 248; Strong v. Hooe, 41 id. 671; Ely v. Wilcox, 26 id. 91; Lawrence v. Milwaukee, 45 id. 306, 309; Ressequie v. Byers, 52 id. 650; Bernia v. Ketchmn, 66 id. 428, 437; Brittam, v. Kinnaird, 1 Brod. & Bing. 432; Wanzer v. Howland,, 10 Wis. 8; Prigg v. Adams, 2 Salk. 675; McNeil v. Bright, 4 Mass. 282; Arnold v. Booth, 14 Wis. 180, 186, 187; Gi/n,., IT. <& Ft. W. P. Go. v. Wynne, 14 Ind. 385; Brengle v. Richardson, 78 Ya. 406; Van Pelt v. Kimball, 18 Wis. 362. Courts of a state are bound to accord to the judgments and decrees of a federal court the same “ full faith and credit ” that is to be accorded to the judgments and decrees of a court of record of a sister state. Orescent Gity L. 8. Go. v. Butchers' Union, 120 U. S. 141; Garson v. Dunham, 121 id. 429; Giles *>. Little, 134 id. 649; Dupasseur v. Pochereau, 21 Wall. 130. See, also, Embury v. Conner, 8 N. Y. 511; Doty v. Brown, 4 id. 71; Beloit v. Morgam,, 7 Wall. 619; Cromwell v. Sac Go. 94 U. S. 351; Elgin v. Marshall, 106 id. 578; Foye v. Patch, 132 Mass. 105; Merria/m v. Whittemore, 5 Gray, 316; Boucha/rd'v. Dias, 3 Denio, 238; Babcock v. Gamp, 12 Ohio St. 11; Aurora v. West, 7 Wall. 82; Gardner v. Buchbee, 3 Cow. 120, 15 Am. Dec. 256; Lumber Go. v. Buchiel, 101 U. S. 638; Wilson’s EGr v. Deen, 121 id. 525, 532-535; Packet Go. v. Sickles, 5 Wall. 580; Tioga P. Go. v. B. & O. P. Go. 20 Wall. 137; Pra/y v. Hegema/n, 98 N. Y. 351; Bissell v. Spring Valley, 124 U. S. 225, 231.</p> <p>The decree of a court of equity in a suit to quiet title is conclusive as an estoppel upon the question of title. Lnd., B. dk W. P. Go. v. Allen, 113 Ind. 308; Starr v. Stark, 1 Sawy. 275; Doyle v. Halla/m, 21 Minn. 515; Davis v. Len-nen, 125 Ind. 185.</p> <p>The case is not one where the federal court was bound to follow the decisions of the state court. The question is simply one as to the implied or common-law powers of the county as a public corporation, and of .the railroad company — a question on which the federal court has a right to follow its own views whether in harmony with those of the state or not. Olcott v. Supervisors, 16 "Wall. 678; Sail-road Oo. v. Otoe Oo. id. 661; Moultrie Oo. v. Fairfield, 105 ,U. S.‘370.</p> <p>It matters not which suit was first commenced. The first final adjudication is, when properly presented, a bar to the other suit proceeding upon the same controversy or dispute. North Bank v. Brown, 50 Me. 214; Paine v. Seheneetady Ins. Go. 11 R. I. 411; Baxley v. linah, 16 Pa. St. 241; Bowne v. Joy, 9 Johns. 221; Walsh v. Pwrkin, 12 id. 99; Finlay v. Hanbest, 30 Pa. St. 190; Puffy v. Lytle, 5 Watts, 120; Marble v. Keyes, 9 Gray, 221; Wood v. Lake, 13 Wis. 94.</p> <p>A decision on demurrer is not res addjudicata until it has become established by final judgment or decree. Armstrong v. Oibson, 31 Wis. 61; Watson v. Appleton, 62 id. 270; Bigelow, Estoppel, 59; Webb v. Buekelew, 82 N. T. 555; Lutheran Fv. Ohuo-eh v. Oristgau, 34 Wis. 328; Teetshorn v. Null, 30 id. 162; Poud v.’W., P. dt S. B. Oo. 65 id. 108; Paddock v. S. F. & M. Ins. Oo. 12 N. T. 591-2; El/weU v. Johnson, 74 id. 80; O. V. Nat. Bank v. Pynah, 16 id. 514; Kirclmer v. Wood, 48 Mich. 199; Gage v. Eieh, 56 Ill. 291; State v. Staylor, 70 Md. 472; Petrick v. Sharran, 95 Pa. St. 521; Alley v. Noté, 111 U. S. 475; Bissell v. Spring Valley, 124 id. 225, 231-4.</p> <p>They argued, among other things, that the determination of any question by a court of last resort is final and conclusive upon the parties in that court and all other courts, and if the question so determined is the legality of a contract it embraces all the contract includes, though the res may be different; citing many cases. The judgment of the circuit court upon the demurrer, affirmed by this court, was a final judgment. The term final, in its application to the doctrine under consideration, is used in the sense of being conclusive. White v. Coatsworth, 6 N. Y. 187, 143; Demurest v. Darg, 32 id. 290Akerly v. Vilas, 24 Wis. 165, 173-4; Lathrop v. Knapp, 37 id. 307, 312; Pierce v. Knee-land, 9 id. 23; Fire Dep't v. Tuttle, 50 id. 552; Wright v. Sperry, 25 id. 617; Du Pont v. Davis, 35 id. 638. The federal court should have followed the decision of this court, which, in connection with its previous uniform decisions, established a rule of property. Miles v. Caldwell, 2 Wall. 43; Bea/uregard v. New Orleans, 18 How. 502; Jackson v. Chew, 12 Wheat. 153; Christy v. Pridgeon,4 Wall. 203; League v. Egery, 24 How. 266; Fairfield v. Gallatin Co. 100 U. S. 47; Suydam v. Williams, 24 How. 428; Whiting v. S. ds F. dm L. R. Co. 25 Wis. 167; Phillips v. Albany, 28 id. 340; Rogan v. Watertown, 30 id. 260; Bound v. Wis. Cent. R. Co. 45 id. 543; Ellis v. N. P. R. Co. 77 id. 114; Green v. Lessee of Neal, 6 Pet. 295; Nenne v. Curtis, 31 Cal. 402; Enfield v. Jordan, 119 U. S. 690; Supervisors v. TJ. S. 18 Wall. 71; Ridings v. Johnson, 128 U. S. 224; Bondurant v. Watson, 103 id. 281; Clements v. Packer, 125 id. 322 ; Hamrick v. Pat/rick, 119 id. 169; Arrowsmith v. Gleason, 129 id. 99; Bacon v. N. W. Life Lns. Co. 131 id. 264; Connecticut Mut. L. Lns. Co. v. Cushman, 108 id. 51; Army v. Watertown, 130 id. 318.</p>

Action to recover damages for the breach of a contract to convey land. The substance of the complaint is stated in the opinion. The defendant appeals from an order overruling a general demurrer to the complaint. For the appellant it was contended that the complaint contains no sufficient allegation of a tender of the consideration.

<p> (1, 6) Appeal: Review of evidence: Orders after judgment. (2, 8) Contracts: Unauthorized rescission by agent: Assignment of claim for damages. (4) Settlement: Fraud. (5) Interest: Instructions: Waiver of error. </p> <p>1. Where the trial court refused to direct a verdict, and an exception to such refusal was duly taken, this court will review the evidence, although there was no motion for a new trial before judgment.</p> <p>2. One L. contracted to sell lumber to a firm at a stipulated price. Afterwards S., his general agent, on account of personal differences with the firm, refused to ship any more lumber on said contract. About a week later, and as soon as he learned what S. had done, L. offered to go on and fulfil the contract, but the firm refused to accept any more lumber under it, and L. was damaged by the loss of the contract. His claim against S. for such loss, by reason of the unauthorized rescission of the contract, he assigned to the defendant before this action was commenced. The action is upon a note made by the defendant to the order of S. and transferred to the plaintiff bank after maturity. The defendant pleaded as a counterclaim the said claim against S., which had been assigned to him by L. The damage to L. by reason 6f the loss of the contract exceeded the amount unpaid on the note in suit. Held, that upon a special verdict finding the above facts a judgment for the defendant was properly entered. '</p> <p>3. The contract was rescinded by S. and not by the vendees of the lumber, and L. was bound by such rescission.</p> <p>4 A writing signed by S. and L., purporting to be a mutual settlement of all demands, was put in evidence by the plaintiff. There was testimony tending to show that L. had signed it without reading it, on the faith of representations by S. that it was of an entirely different character. The jury having found specially that L. and S. did not settle the claim in question, the significance of such finding, under the charge of the court, is that such testimony was true.</p> <p>5. The trial court instructed the jury to allow interest on the damages from the time they accrued. This charge was not excepted to, and plaintiff acquiesced in the ruling by admitting that the damages exceeded the sum unpaid on the note, which could only be true by allowing such interest. Held, that the error, if any, in the charge would not work a reversal.</p> <p>6. On an appeal from a judgment, orders made in the cause after judgment cannot be reviewed.</p>

■ The action was commenced July 28, 1887, upon a promissory note, against Mrs. Cornelia J. Hemes and one Williamson.

<p> Estates of decedents: Distribution of personalty. </p> <p>Under subd. 6, sec. 3935, and subd. 2, sec. 2270, E. S., if a child under age and unmarried dies intestate leaving personal property which came (not by testamentary gift) from the estate of a deceased parent, such personal property should be distributed to the next of kin. Mere personalty not being heritable, subd. 5 of sec. 2270 does not apply to such a case.</p>

<p> Sale: Rescission: Return of property. </p> <p>In an action to rescind a purchase of personal property on the ground of fraud of the vendor, the plaintiff must show that he returned or offered to return all the property.</p>

<p>APPEAL from the Circuit Court for Dodge County.</p> <p>Action to obtain construction of a will. The facts are sufficiently stated in the opinion. The defendants Joseph .Kelley and Fra/nk Kelley appeal from the order overruling their demurrer to the complaint.</p> <p>To the point that tbe plaintiff’s remedy was by ejectment, they cited Meade v. Black, 22 Wis. 240; Lee v. Simpson, 29 id. 333; Gray v. Tyler, 40 id. 579; Adams v. Beclcer, 8 N. Y.- Supp. 260.</p>

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

This action is upon a promissory note dated September 1, 1883, made by the defendants, for $648.26, payable to the order of D. M. Osborne & Co. at the Eirst National Bank of Beaver Dam, with interest. The note became due, by its terms, November 1, 1884. Three hundred dollars is indorsed thereon under date of November 3, 1884. The payee of the note is a corporation of New York and Illinois.

Action to recover damages for tlie negligent killing of plaintiff’s intestate. The facts will sufficiently appear from the opinion. Tbe jury having assessed tbe plaintiff’s damages at $4,000, be consented to a reduction thereof to $2,000; and from a judgment on tbe verdict for that amount tbe defendant appealed.

Sometime prior to September 20, 1890, William Yoelz died intestate, seised of 165 acres of land in Waukesha county, leaving a widow, Caroline, and six sons, parties to .this action, to wit, the plaintiff Hermam,, and the defendants Louis, Gustav, August, Frederielc, and Frank.

Sarah Evans died November 3,1878, leaving a will executed .September 21, 1878, and which was admitted to probate April 7, 1879, in and by which she, in effect, gave, devised, and bequeathed to her son Marcenas the sum of $2,000, the same to be a lien upon her Pewaukee farm of eighty acres, therein described, until satisfied and paid. She also devised to her said son a lot in Waiikesha, therein described.

An instrument purporting to be the last will and testament of John Christoph Goerke, dated December 7, 1889, and attested by T. 0. Martin and John J. Wolf, of Wauke-sha, Wisconsin, was offered for probate to the county court of Waukesha county, by Frederick Goerke, a son of the testator, and was by said court admitted to probate. Ella Goerke and Arthur Goerke appealed from the order of the county court.

The action was brought to recover damages for an assault and battery, alleged to have been committed by the defendant upon the plaintiff on February 20, 1889. The answer is a general denial. At the date of the alleged assault the plaintiff was a little more than fourteen .years of age, and the defendant a little less than twelve years of age. The injury complained of was caused by a kick inflicted by defendant upon the leg of the plaintiff, a little below the knee.

<p> Watercourses: Title to bed of stream: Description in deed: Land bounded by “lotv-water marie:'” Light to out ice. </p> <p>1. The grantees of a strip of land described in their deeds as bounded on the east by the low-water mart on the west side of a river, take no title to any part of the bed of the stream beyond such low-water mart, and have no right to cut ice from the river, even though they purchased the land for the express purpose of building ice-houses thereon.</p> <p>2. The grantor in the first conveyance of said strip of land was the owner also of a mill and dam and of all the land covered by the mill pond, which pond was tire river referred to in the later deeds. Held, that a reservation, in such first conveyance, of the right to overflow the land conveyed by keeping the dam at a height not exceeding that fixed by a certain survey, did not indicate an intention to convey to the center line of the mill pond or river.</p> <p>3. An act of the legislature, subsequent to said first conveyance, declaring the river a navigable strham, could not affect the rights of the parties.</p> <p>See note to this case in 14 L. R: A. S61.— Rep.</p>

It is undisputed that during the times mentioned the plaintiff was a corporation at Hurley, Wis., and had a mill about ■ three miles distant from that place, at Gile, which was completed in May, 1888, and also had a large quantity of pine timber lying upon the west branch of the Montreal river and on the Potato river, in the vicinity of said mill; that Alexander Stewart, of Wausau, was the treasurer of said corporation; that James McCrossin was the general manager of said…

<p>Writ of error: Order of court commissioner: Habeas corpus.</p> <p>An order made by a court commissioner discharging a prisoner on habeas corpus cannot be reviewed by this court on writ of error. Ch. 239, Laws of 1889 (S. & B. Ann. Stats, sec. 3437a), merely authorizes this court to review the order or judgment of any inferior court either in determining such matter originally or, when sitting as a court of review, in reversing or affirming the order of a judge, commissioner, or other officer.</p>

Erancis E. Eord, a citizen and resident of this state, died testate January 26, .1886, leaving real estate in several states, and personal property. His will was duly probated in the county court of Dane county, May 11,18*86. An action to obtain a construction of the will was brought by the executor, Joseph C. Ford, in the circuit court of Dane county, and came to this court by appeal.

<p> Fraudulent conveyances: Evidence. </p> <p>In an action, in aid of an execution, to set aside as fraudulent conveyances of land by the judgment debtor to one D. and by D., to the minor daughters of the debtor, the evidence is held to sustain the findings of the trial court to the effect that there was no fraud, the land having been originally purchased with money furnished by D., who, being the real owner thereof, conveyed the same as a free gift to the daughters of the debtor.</p>

<p> Fraudulent conveyances: Evidence. </p>

The action was commenced October 14, 1890. The complaint alleges that on October 25, 1884, the plaintiff was the owner and in possession of a stock of general merchandise and a large quantity of office furniture, of the value of $7,500, and that on said day “ the defendants wrongfully and forcibly took and carried away from the possession of the plaintiff all of the said property, and converted the same to their own use,” to the plaintiff’s damage $10,000.

<p>APPEAL from tbe Circuit Court for Brown County.</p> <p>Action by respondent, as administrator, on account of tbe death of bis son, a minor, nineteen years and eight months of age. Tbe deceased was a switchman in defendant’s yard at Green Bay, and was killed April 12, 1890. On that day tbe switch engine, with deceased and two other switchmen, was sent to remove a mail car and coal car from a side track in the yard. This side track was the outside track in the yard, and a coal-shed stood near it; from which passenger and mail cars were supplied with coal when switched onto this track for that purpose. This seems to have been practically the only purpose to which this side track was put. On the morning in question a coal car and mail, car stood on this- track north of the coal-shed, the mail car being to the south, and the switch engine was to throw the coal car out on the main line and the mail car back. The engine came from the south. Couplings were made by the switchmen, and the engine started south with the two cars, the intestate and one other switchman standing on the platform at the north end of the mail car, which point was then 100 to 130 feet north of the coal-shed, and the other switchman being at the north end of the coal car. As the' cars started, water commenced running down from a steam-pipe at the north end of the mail car upon deceased, who got down on tbe lowest step of tbe platform on tbe west side of the car to avoid tbe water, which was blowing in bis face. Tbe water continued to blow in bis face, and be took hold of tbe band-railings and swung bis body outside of tbe car, throwing bis bead back in tbe effort to' avoid it. While so standing, tbe train moving six to eight miles an hour, his bead and shoulders struck against some part of tbe coal-shed, and be was thrown under tbe wheels of tbe coal car and killed. It was bis duty to jump off tbe train while in motion, and throw a switch about eight or ten car-lengths from where be started. Tbe coal-shed was 22-J- inches from the side of tbe mail car at its nearest point. Tbe shed bad been there several years, and is nearly opposite tbe station. Deceased bad worked in tbe yard as switchman nearly or quite a year, and before that time bad been yard-clerk for a short time. It does not positively appear that be ever made this switch before. If be bad done so at all, it was but a few times.</p> <p>In response to appropriate questions, tbe jury found (1) that tbe shed was so close to tbe track as to render the place unnecessarily dangerous to employees in performing their duties at that place; (2) that deceased did not know of tbe existence of the shed and its distance from tbe track • and cars; (3) that he bad not tbe means of such knowledge; (4) that be could not have avoided tbe accident by tbe exercise of ordinary care; and plaintiff’s damages were assessed at $1,200. A motion for a new trial was overruled, and judgment entered on tbe verdict, from which defendant appeals.</p> <p>They contended, inter alia, that tbe defendant was not negligent. Negligence cannot be predicated of an act not lilcely to cause injury. Care does not demand providence against tbe improbable. Atkinson v. Goodrich Transp. Go. 60 Wis. 164; Sjogren v. Hall, 58 Mich. 274; Heford v. State, 30 Md. 179; MoHenry v. Marr, 39 id. 510; Steffen v. C. da K. W. R. Go. 46 Wis. 259; 14 Am. & Eng. Ency. of Law, 890; 'Kellogg v. G. db K. W. R. Go. 26 Wis. 223. The plaintiff’s negligence contributed to the injury. “ It is contributory negligence, if, in the attempt to avoid that which is merely inconvenient and in no sense dangerous, the person injured encounters a danger obviously apparent to the minds of reasonable men.” Patterson, E’y Acc. Law, 63; Goldstein v. G., M. db St. P. P. Go. 46 Wis. 406; Railroad Go. v. De-pew, 40 Ohio St. 127. It is negligence for a' railroad employee to needlessly project his body from the side of a moving car, even in the performance of his duty. Thompson v. B. do M. R. Go. 153 Mass. 391; Jones' Adm'r v. L. db N. R. Go. 82 Ky. 610; St. L. & S.mF. R. Go. v. MoKer, 41 Ark. 542. So, it is negligence in a passenger to protrude his limbs or body beyond the side of a moving car. Favre-v. I. & K. R. Go. 16 S. W. Eep. (Ky.), 370; Moore v. Edison E. I. Go. 9 So. Eep. (La.), 433; Louisville dé K. R. Co. v. Sicldnqs, 5 Bush, 1; Spenoer v. M. db P. du G. R. Go. 17 Wis. 494.</p> <p>They cited, as in cases in which, under essentially like circumstances, railway companies have been held liable, III. Gent. R. Go. v. Welch, 52 Ill. 183; Chicago db I. R. Go. v. Russell, 91 id. 298; Kugent v. B., C. db M. R. Go. 80 Me. 62; Pidcock v. U. P. R. Go. 5 Utah, 612; Robel v. O., M. de St. P. R. Go. 27 Minn. 305; Allen v> B., G. R. db K. R. Go. 57 Iowa, 623; Kearns v. G., M. db St. P. R. Go. 66 id. 599; Dorsey v. P. db G. Const. Go. 42 Wis. 583; Boss v. K. P. R. Go. 5 Dak. 309; Aralello v. 8. A. db A. P. R. Go. 11 S. W. Eep. (Tex.), 913; Chicago, B. db Q. R. Go. v. Gregory, 58 Ill. 272; Sweet v. Mich. Gent. R.. Go. 49 N. W. Eep. (Mich.), 882. It is not contributory negligence to avoid an inconvenience by any act not obviously dangerous. Patterson, R’y Acc. Law, sec. 65 ; Johnson v. W., C. d P. P. Go. 70 Pa. St. 357; Sobi-eski v. St. P. d P. P. Go. 41 Minn. 169.</p>

<p>APPEAL from the Circuit Court for Brown County.</p> <p>Action to recover damages for the killing of plaintiff’s intestate, a child about two years and eight months old. The child was run over at a highway crossing by a work train on tbe defendant’s railroad. At the close of the trial the court directed a verdict for the defendant, and from the judgment entered thereon the plaintiff appeals.</p> <p>They argued, among other things, that the question as to how far a child could have been seen on the day of the accident was proper, to show that the child could have been- discovered by the use of ordinary care. Frióle v. St. L., K. C. <& FT. Ii. Go. 75 Mo. 595. To the point that statements of the engineer made at the time and place of the accident, as to how he came to run upon the child, were part of the res gestae, they cited, besides cases cited in the opinion, Courtney v. Baiter, 34 N. Y. Super. Ct. 529; Haynes v. Rutter, 24 Pick. 242; Mobley v. Eittleberger, 37 Mich- 362; Armil v. G., B. & Q. R. Co. 70 Iowa, 130; Cleveland v. Newsom, 45 Mich. 63.</p> <p>They contended, inter alia, that the exclusion of the question, “ Did you hear the engineer say anything as to how he came to run' over the child?” could not be held error. The record discloses no purpose for which the question was asked, no explanation or offer of what was proposed to be proved, and no further question. Savage v. Brake, 8 Wis. 272; Broker v. Fitchburg, 22 id. 675; Birdsey v. Butterfield, 34 id. 52; Schmidt■ v. Pfeil, 24 id. 452; Beard v. Bedolph, 29 id. 136,143-4; Wilson v. Noonan, 35 id. 321, 357-8; First Baptist Church v. Brooklyn F. Ins. Co. 23 How. Pr. 448; Millett v. Hay ford, 1 Wis. 401; Sew-ell v. Eaton, 6 id. 490; Fenelon v. Hogoboom, 31 id. 172; Thomas v. Wiesmann, 44 id. 339.</p>

<p> Voluntary assignment: Validity: JEstoppel. </p> <p>In the absence of fraud a creditor who has filed proof of his claim in assignment proceedings is estopped to deny the validity of the assignment, even though, in proceedings by other creditors, it has. been adjudged void because the assignee’s bond was not duly approved. Tire word “void” in sec. 1694, R. S., does not mean that the assignment may not be so ratified by a creditor as to estop him. to deny its validity.</p>

<p>APPEAL from tbe Circuit Court for Brown County.</p> <p>The complaint alleges, in effect, the plaintiff’s incorporation and. business at Riverside, Cal.; the defendants’ partnership and business at Green Bay; that March 20, 1890, the plaintiff sold and delivered to the defendants, free on board the car at Riverside, Cal., at buyer’s risk, 300 boxes of oranges, at the agreed price of $2 per box; that the defendants promised to pay that amount therefor in thirty days from that date, but had only paid $426.69; and claimed a balance of $Í73.31, with interest and costs. The answer consisted of admissions, and alleged, by way of counterclaim, that by the terms of said purchase said oranges were to be freshly picked, freshly packed, sound, and in good condition when shipped, and guaranteed against frost while in transit, and that the plaintiff assumed all risk of freezing; that as a matter of fact the oranges were not freshly picked, freshly packed, • sound, nor in good condition when shipped, but had been picked and packed a long time, and were frost-bitten and partly decayed, and while in transit were further injured by frost and cold weather, to the defendants’ damage in the sum of $209.75. The plaintiff replied a general denial to the counterclaim.</p> <p>At the close of the trial the j.ury returned a special ver-diet to the effect that it was a part of the contract for the purchase of the oranges that the plaintiff guaranteed that they wpuld not be injured by frost while in transit; that the oranges, when delivered on the car at Eiverside, were not in a sound and good condition, but were chilled or frost-bitten; that the defendants lost sixty-four boxes of said oranges by reason of their being decayed when they •arrived at Green Bay. The court thereupon ordered judgment in favor of the defendants, dismissing the plaintiff’s complaint, and for $25.89 damages and $59.24 costs. From the judgment entered accordingly the plaintiff appeals.</p>

Mortgage foreclosure. It appears by the testimony that Emily McDonald, the appellant, was the wife of the defendant M. McDonald. That she signed a joint and several note with her husband for $350, running to respondent; and also, upon her husband’s request, signed and delivered to her husband a mortgage which was blank as to description of property, upon his representation that the mortgage was to cover certain mill property belonging to him.

<p> Master and servant: Negligence: Injury to servant: Dangerous premises: Evidence: Damages. </p> <p>1. The plaintiff having been injured while at work for the defendants on their dock carrying shingles to a boat, and the evidence tending to show that the injury was caused by a defect in the dock, it was proper to instruct the jury as to the duty of the defendants to provide a reasonably safe place for the plaintiff to work in.</p> <p>2. Evidence was admissible that the dock was defective in many places by reason of holes other than the one which caused the injury to the plaintiff.</p> <p>3. Evidence as to how the dock compared with others used for the same purposes was not admissible.</p> <p>4. Evidence that the plaintiff was an habitually careless man was not admissible.</p> <p>6. The complaint alleged that the defect which caused the injury was a hole about ten inches broad and eighteen inches long, which was covered by a loose board or slab. The jury found that at the place where the plaintiff’s leg went through the dock there was a broken or cracked plank filling the space, which gave way when plaintiff stepped on it Held, that the variance, if any, was not material.</p> <p>■6. Both bones of plaintiff’s right leg were broken near the ankle. At the time of the trial, more than two years afterwards, he still suffered pain and was unable to walk without a cane. He testified that his leg was crooked near the ankle, which was sore and was swollen every day; that his right leg was two inches shorter than the other; and that he was unable to do a day’s work or earn his former wages. But one medical witness was called, who testified, on the part of the defense, that he examined the leg about a week after the injury and again ten days later; that there was then no shortening of the leg and nothing to indicate any permanent disability if the leg were properly cared for; that on an examination at the time of the trial he found the leg had shortened half an inch and that there was a soreness in the foot, the cause of which he could not explain. Held, that from this evidence the jury might find that the injury was of a permanent character, and that the court therefore properly gave instructions as to the damages for such an injury.</p> <p>7. The defendants claimed that some negligence of the plaintiff had caused a change in the leg from what it was soon after the accident, but there was little evidence to sustain such claim. The court charged that if this were so the defendants were in no way responsible for damages resulting from such negligence. Held, that the question was fairly submitted to the jury.</p> <p>8. A verdict for $1,800 is held not excessive.</p>

The action is against the members of a certain copart-nership firm doing business under the name of “ Silver & Lead Option Co.” to recover an alleged balance of $298.68 on an account for goods sold and delivered by plaintiff to defendants; also for transportation of such goods, $65.25; for freight charges, $1.08; and for board of defendants’ employees, $6.80. The answer of defendants admits their partnership as alleged, and denies all other allegations of the complaint.

Three several actions were commenced by different plaintiffs against Eood & Maxwell, A. Shabanaw, The C. C. Thompson They contended, inter alia, that the trial court erred in amending the referee’s report so as to make a part-of the claim of Shar-bancm a lien upon the “ old mill ” property, of which the appellant claims to be the owner.

<p>APPEAL from tbe Circuit Court for Ashland County.</p> <p>This action was commenced against tbe defendants, A. Howard Hinlde, Willia/m H. Hinlde, Frazilc B. Foote, William H. Davis, and tbe Ashland Iron & Steel Company, for tbe purpose of rescinding and vacating tbe assignment of certain stock and conveyance of certain land, and for an accounting, etc. Tbe complaint alleges, in effect, that tbe business men and real estate owners of Ashland, in 1886, donated a furnace site and lots of the value'of over $15,000, as a bonus to the plaintiff for erecting a blast-furnace at Ashland; that the defendant WilliamH. Hinlde, for a one-half interest in the real estate thus donated, agreed to aid in placing stock and organizing a company for the purpose of erecting such furnace.; that the plaintiff agreed to transfer the site to such company, to wit, the Ashland. Iron do Steel Company, for $10,000 in stock of said company; that said A. H. HinMe subscribed 5,000 shares of said stock; said William H Hinlde, 4,000 shares thereof; the plaint7 iff, 2,500 shares thereof; said Foote, a brother-in-law of said HinMe, 1,000 shares thereof; that, after the furnace was erected, the plaintiff necessarily purchased two additional lots for the company, at a cost of $600; that the stock of said company was worth more than par value, and would pay fifteen per cent, dividends; that the relations of the parties were harmonious to the time of the grievances mentioned ; that A. H. HinMe loaned the company $200,000, with the understanding that the same might be kept by the company as long as needed, but no such agreement was actually executed, through the wTilful neglect, of the defendants ; that the plaintiff paid $17,500 in cash on his said subscription to said, stock; that, after the completion of the furnace, the defendants entered into a conspiracy to wrest from the plaintiff his stock at much less than its real value; that in December, 1888, W~. H HinMe, knowing the plaintiff was temporarily in straitened circumstances, informed the plaintiff that A. H. HinMe wanted the plaintiff’s stock and a settlement of all matters between the plaintiff and the company; that he was authorized to offer the plaintiff fifty per cent, of the par value of the plaintiff’s stock on condition that the plaintiff would assume and pay the $600 due for the two lots mentioned, and deduct $500 from his claim for services; that, upon the plaintiff’s objecting to said proposition, the said W. H Hinlde informed him that the defendants proposed to have the stock and full management ; that they would pay him, therefore, $15,000 in full for his stock and all claims, and no more; that unless he accepted such proposition they would take steps to force a compliance with their demands; that the company was owing A. H. Hinkle $200,000, borrowed as aforesaid, and, if necessary, they would shut down the mill and take legal steps to charge the company’s property with the amount thereof and sell the same under the hammer; that it was $15,000 or nothing; that they were in dead earnest; that if he did not do this he 'would lose all; that such threats were repeated in various forms, so that the plaintiff believed them; that the plaintiff reminded the defendant W. H. Hinkle that he had had repeated applications for the purchase of his stock, and could dispose of the same at full par value at Ashland; that said William H. IlinJde replied that they had the power and would prevent it; that the stock would have to be transferred on the books of the company, and that they would advise any purchaser of their determination to shut down the mill and sell the same for the debts of the company, and that no one would take his stock under such circumstances; that they would prevent the consummation of the transfer of such stock, if attempted; that said William II. HimMe gave the plaintiff until the following Saturday to determine what he would do in the premises; that owing to his belief in these statements, and the disturbed condition of his mind on account thereof, the plaintiff unwillingly consented and assigned the stock, and consented to assume and pay the $600, and relinquish $500 on his services, and receive therefor the sum of $15,000; that the plaintiff had paid $21,500 for his stock, calling said site $10,000, and had received no interest or dividends • that the stock surrendered was worth $150 on its par value; that the companjr had used the two lots; that, preparatory to the conspiracy and since the plant was completed, they compelled the plaintiff to give up his position as manager; that the plaintiff deeded the site at $10,000 solely upon the agreement that he was to retain his relations and share the profits; that the site, was actually worth $150,000 at the time of such transfer; that, for the same reasons, he gave the defendants perpetually free use of the block 39, worth a rental of $500 per year; that he was to be the permanent manager, and that he had been removed therefrom without cause.</p> <p>To that complaint the defendants demurred, on the ground that it did not state facts sufficient to constitute a cause of action. From the order sustaining said demurrer the plaintiff appeals.</p> <p>contended, inter alia, that a trust relation subsisted between the parties, and that the acts of the defendants were in violation of the trust. Ryle v. Ryle, 41H. J. Eq. 582; Ervin v. Oregon R. <& N. Go. 27 Fed. Eep. 626; Jackson v. Ludeling, 21 Wall. 616; Pomeroy, Eq. Jur. secs. 668, 958, 1077; Dxmcomb v. N. Y., H. de H. R. Go. 84 FT. Y. 190; Ex jparie Lacey, 6 Yes. 625; Oook v. Berlin W. M. Go. 43 Wis. 433; Perry, Trusts, sec. 195; Fisher v. Budlong, 10 E. I. 525; Dousman v. W. ds L. 8. M. dk S. Go. 40 Wis. 418. The circumstances under which the transfer of the stock and the surrender of appellant’s interests were accomplished amount to duress. See Eoshay v. Ferguson, 5 Hill, 154; Maxwell v. Griswold, 10 How. 242; Oarlwright v. Rowley, 2 Esp. H. P. C. 723; Swift Go. v. TJ. 8. Ill U. S. 22; Railroad Go. v. Lockwood, 17 Wall. 379; Beckwith v. Frisbie, 32 Yt. 559-566;- West Ya. Trams. Go. v. Sweetzer, 25 W. Ya. 434; Dousman v. W. dk L. 8. M. db 8. Go. 40 Wis. 418; Van Burén v. Downing, 41 id. 122; Pa/rcher v. Marathon Go. 52 id. 388; Hecltmcvn v. Swcvrtz, 64 id. 48; Schultz v. Culbertson, 46 id. 313; Leighton v. Orr, 44 Iowa, 683; Dean v. Negley, 41 Pa. St. 312; Eissinger v. Kissinger, 37 Ind. 341; Ryan v. Ashton, 42 Iowa, 365; Adams v. Schiffer, 11 Colo. 15; Yyne v. •Glenn, 41 .Mich. 112; Parmentier v. Pater, 13 Oreg. 121; Sasportas v. Jennings, 1 Bay'(S. C.), 470; Collins v. West-lou/ry, 2 id. 211; Kuelkannio v. Hidding, 31 Wis. 508. There is a class of cases kindred in principle to those above cited, where the transactions of parties are set aside on ■ the ground that they are deemed essentially unjust and unfair. See Headley v. HaeJdey, 50 Mich. 43, and cases cited.</p> <p>To the point that the principle that the directors of a corporation are trustees for the stockholders relates only to their acts- in connection with the property held by the corporation itself, and has no application to- a purchase of stock by a director from a stockholder, they cited Boa/rd of Commissioners of Tippeecmoe Co. v. Reynolds, 44 Ind. 509; 8. C. 5 Am. Corp. Cas. 340; Cwrpenter v. Danforth, 52 Barb. 581; Gillett v. Bowen, 23 Fed. Rep. 625; Beaderiekv. Wilson, 8 Bax. 108; 1 Morawetz, Corp. 565, note; French v. Fuller, 23 Pick. 108.</p>

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>Action to enforce a lien upon lumber. The facts are stated in the opinion. The defendants A. Weed & Co. made no defense. The Fi/rst National Bank of Ashland intervened under the statute and answered the complaint, claiming an interest in the lumber and alleging that plaintiff’s services were completed on or before July 4, 1890, and that more than thirty days had elapsed thereafter before the filing of the claim for a lien. Erom a judgment in favor of the plaintiff, adjudging the amount of its claim to be a lien on the lumber, the bank appeals.</p> <p>They contended, inter alia, that the true rule is that if all the work is done under one and the same contract, the limitation for filing a lien begins to run from the date of the last item. Chapman v. Wadleigh, 33 Wis. 26J; Fowler <o. Bailley, 14 id. 125; Fra/nkoviz v. Smith, 34 Minn. 403.</p>

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

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>It is alleged in the complaint that before June' 8, 1888, the defendants combined together to form a corporation under the laws of this state, to be named the “ North Star Iron-Works Company;” that on the date aforesaid they signed and acknowledged articles for the incorporation of such company, which were filed in the office of the register of deeds of Ashland.county June 13, and in the office of the secretary of state June 18, 1888; that defendants, acting under the name of such corporation, transacted business and made the contract with plaintiff thereinafter mentioned ; that plaintiff (who is an architect) performed work, labor, and services in preparing drawings, plans, and specifications, under an agreement with defendants, acting under the name of such corporation, for certain buildings to be erected in the city of Ashland, Ashland county, Wis., which services were worth $543, and for which defendants agreed to pay that sum, but have failed to do so; that the capital stock of said corporation is $100,000, consisting of 2,000 shares of $50 each; and that when such contract was made with plaintiff one half of said capital stock had not been subscribed for, nor twenty per cent, thereof paid in. During the trial the plaintiff was permitted to amend his complaint by alleging therein that the defendants were stockholders in the corporation from and after the date of its organization. The defendants answered a general denial of all the material allegations of the complaint.</p> <p>It appeared on the trial that in 1888 there existed a corporation or company in Minneapolis known as the “ North Star Iron-Works Company,” which owned a manufacturing plant, and that a verbal agreement was entered into between the owners of such plant and an association of citizens of Ashland, known as the “ Business Men’s Association,” to the effect that the Minneapolis company should remove its plant, tools, patterns, etc., to Ashland, and turn the same over to a corporation of the same name, to be organized under the laws of this state; the consideration therefor being the conveyance to such owners of certain real estate, and the subscription by citizens of Ashland of $15,000 to the capital stock of the Wisconsin corporation. Such owners were to have $85,000 of the stock of the corporation.</p> <p>The Minneapolis property was thereafter taken to Ash-land, under the direction of one Rice, who was one of the owners, and who seems to have’ been the manager of the Minneapolis company, and he proceeded to erect buildings at Ashland, in which to put the property and carry on the business, and to that end procured the plaintiff to make the drawings, plans, and specifications in question. After-wards the Wisconsin corporation was organized as above stated, the defendants being named in the articles as incor-porators, and executing the same as such, and they, together with ninety other citizens of Ashland, subscribed for 300 shares of the stock of the corporation. The secretary of the Business Men’s Association (the defendant Heydlauff) collected $9,000 on these stock subscriptions, and paid the same to Rice, to be expended in the prosecution of the enterprise. The Minneapolis parties never actually subscribed for any stock, and no stock certificates were ever issued by the corporation. The testimony is further stated in the opinion.</p> <p>The court refused to direct a verdict for defendants, and instructed the jury that before they could find for plaintiff they must find either that the corporation promised to pay plaintiff for his services, or that after it was organized the corporation or its duly authorized representative, knowing all the facts, adopted such drawings, etc., and used the same, thus approving and ratifying the alleged agreement of Rice that the corporation should pay for the same. The jury returned a general verdict for plaintiff, assessing his damages at the sum claimed. A motion by defendants for a new trial was denied, and judgment entered for plaintiff, pursuant to the verdict. Defendants appeal from the judgment.</p> <p>They argued, among other things, that a corporation can be liable only for its own acts done after it had a legal existence. Promoters do not represent the corporation in any relation of agency, and have no authority to make preliminary contracts binding the corporation when it shall be formed. Mere acceptance of- the benefit of a contract does not impty a promise on the part of a corporation to adopt and perform it. - 4 Am. & Eng. Ency. of Law, 201; Oaledonicm & jD. J. R. Go. v. Helensburgh, 2 Macq. 391; Pa/yne v. N. 8. W. O. & I. 8. N. Go. 10 Exch. 283; Hew Yorh <& N. H. R. Oo. v. Ketchum, 27 Conn. 110; Safety JD. L. Ins. Oo. v. Smith, 65 III. 309; Western S. & M. Oo. v. Gousley, 72 Ill. 531; Rockford, R. I. dk St. L. R. Go. v. Sage, 65 Ill. 328; Mcvrchand v. loan da P. Ass’n, 26 La. Ann. 389; Franklin F. Ins. Oo. v. Ilcurt, 31 Md. 59; Penn Match Go. v. Ilapgood, 141 Mass. 145; Munson v. S., O. dk O. R. Oo. 103 N. Y. 58.</p>

<p> Surface waters: Obstruction or diversion. </p> <p>The owner of land, for tne purpose of securing or protecting its reasonable use and enjoyment, may obstruct or divert surface waters thereon, and which have come down from higher levels, by embankments, ditches, drains, culverts, and other constructions, and in doing so may lawfully hinder the natural flow of such waters and turn the same back upon or off on to and over the lands of other owners, without liability for injuries ensuing from such obstruction or diversion.</p>

Certiorari.' Wright sued le Clair and others in the municipal court of Ashland county, by summons returnable June 4,1890, on which day, on defendants’, motion, adjournment was taken till June 14th, and on said last-named day, by consent of parties, the case was further adjourned until July 14, 1890, at 9 o’clock a. m., and the following entry of such adjournment was made in the record of said court: “ Ey consent of the parties, case adjourned to the 14th day of July, 1890,…

<p> Trespass: Possession. </p> <p>One in the actual occupation of land may maintain trespass against any person except the real owner or the person having the right of possession.</p>

Action for libel. A trial thereof resulted in a verdict for plaintiff, assessing her damages at $1,500. Defendant moved to set aside the verdict and for a new trial on the grounds that the court made various erroneous rulings on the trial; that the verdict is unsupported by evidence; that it is against the weight of evidence; and that the damages are excessive. The motion was granted without terms and without any statement of the reasons for granting it.

Guardian’s accounting. Appellant was appointed guardian of respondent in 1864. Eespondent was then an infant about a year old, and his parents were both deceased. The only estate of tbe ward consisted of claims for bounty and pension by virtue of the death of his father, who was a soldier. The appellant received, as such guardian, from the state, in 1866, $77.88, and from the national government, as pension, $1,181.70, making in all $1,259.58.