Volume 82 — Wisconsin Reports

This action is prosecuted by Louis Valin, as administrator of the estate of Narcisse Craite, against the railroad company, defendant, to recover damages sustained by the killing of his intestate at a crossing of the railroad company by a passing locomotive and tender. The answer was a general denial of the negligence charged, and upon trial before a jury the circuit court directed a verdict for the defendant, and from the judgment entered on it the plaintiff appealed.

APPEALS from the Circuit Court for Rock County. This case is here on cross-appeals by the respective parties thereto from portions of the judgment. It was tried by the court without a jury. There is no bill of exceptions in the record. The facts found by the court are substantially as follows: During the years 1887 and 1888 Silas Ward was sheriff of Rock county, and A. K. Cutts, the plaintiff, was the under-sheriff and also one of the • constables of that county.

ERROE to the Circuit Court for Waukesha, County. The plaintiff in error was convicted of murder in the first degree. Held: in and upon the body, face, and head of one Henry Schley, a human being, then and there being, did strike one mortal blow, and by such striking of the said blow then and there did inflict one mortal wound in and upon the body, face, and head of him, the said Henry Schley, with premeditated design to effect the death of him, the said…

The complaint alleges that until January 29, 1889, the defendant was the owner- of lots 13 and 14, in block 16, in Glidden & Lockwood’s addition, in the Eighteenth ward of the city of Milwaukee: that on that day the plaintiff purchased of the defendant the said property for the agreed price of $2,600, which was duly paid, and the defendant duly conveyed the same to plaintiff; that prior to the purchase, and about January 22,1889, the plaintiff, being ignorant and unaware of…

This action is brought in this court in the name of the state, by the attorney general, upon the relation of George JRaymer, a citizen and taspayer in the state, and upon leave of this court first had and obtained, to restrain the defendant, as secretary of state, from drawing any warrant in favor of Oliver E. Wells, as state superintendent of public instruction, upon the state treasurer, requiring such treasurer to pay to said Wells any sum pf money in excess of his salary…

Action in equity to set aside the certificate of sale and deed of certain real estate, obtained by defendant by virtue of the foreclosure of a mortgage by advertisement, and to redeem the premises. The sale took place November 2, 1889. The deed was executed and delivered November 18, 1890.

This action is to foreclose a mortgage on 326 acres of land in Marquette county, executed by defendants Frederick and Sophia Albreeht to plaintiff, to secure tbe payment of a promissory note made by tbe mortgagors to tbe plaintiff for $4,000, dated April 18, 1885, and payable five years from date, with interest at six per cent., payable annually. Sucb note and mortgage are for tbe unpaid balance of tbe purchase money for tbe mortgaged premises.

. The complaint' charges that on or about April 9, 1889, the plaintiff was the owner of $7,000 in money, and entitled to the immediate possession thereof, and that the defendants, who were partners and attorneys at law, being in possession of said money, unlawfully and wrongfully converted and disposed of the same to their own use.

The complaint alleges that at the times named the plaintiff-was engaged in business at Juda as a cheese maker, and as such had always maintained a good reputation and credit; that in August, 1890, and October 23, 1890, at Monroe and Juda, the defendant Mcvry Legler, the wife of the defendant John Legler, designing and intending to injure and degrade the plaintiff in his reputation and cause it to be believed that he had been guiltyof the crime charged upon him by her…

In 1863 • a .clitch was dug across the lauds of plaintiffs, then owned by their father, for the purpose of draining the lands of one Stillwell. The ditch was dug pursuant to the verdict of a jury rendered in an inquisition held under the provisions of ch. 57, E. S. 1858. One Stewart subsequently acquired the lands of Stillwell.

After tbis action'was before this court, and the right of. the plaintiff to recover for cutting down the trees in question was determined (78 Wis. 56, where the case is stated), it was tried on the merits, and a verdict given for the plaintiff for $100 damages, and from a judgment thereon the defendant appeals.

The case is sufficiently stated in the opinion. As to the liability of an attorney for damages resulting from his negligence, they cited Babbitt v. Rumpus, 73 Mich. 331; Bitch v. Scott, 34 Am.

<p>APPEAL from the County Court of Waukesha County.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

The amended complaint alleges, in effect, that at the times named the plaintiff was a corporation organized under the laws of .Ohio, and engaged in the manufacture and sale of surgical and dental chairs; that June 17,1890, at Waukesha, the defendant, maliciously intending to injure the plaintiff in its good name and reputation, in the presence and hearing of a number of persons, spoke of and concerning the plaintiff the following words, with appropriate innuendoes, to wit: “…

This is an appeal from an order dated August 25, 1891, dissolving an interlocutory injunctional order restraining the defendant from constructing a school-house upon certain real estate. The injunctional order was founded upon the affidavit of O. H. Neff, director of the plaintiff district. The complaint does not appear in the record.

The facts are stated in the opinion. . to the point that the statute does not contemplate the granting of a new trial as a matter of right in actions other than ejectment, cited Shumwa/y v. Shumwa/y, 42 • N. Y. 143; Sedgw. & W. Tr. Tit. Land, secs. 484, 595, 608-9; Knight v. Valentine, 35 Minn. 367.

In 1889 the firm of Youngs & Fetzer, of which the plaintiff was a member, was doing business in Door county. They carried on a store for the sale of general merchandise, a dock or pier for shipping purposes, and a saw-mill. At the same time the defendant was carrying on a lumbering business there, and had quite extensive dealings with such firm.

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

<p>APPEAL from the Circuit Court for Brown County.</p> <p>On August 5,1890, the defendant executed and delivered to the plaintiff a policy of insurance upon the personal property therein described, to the amount of $850, in and by which the defendant insured the same to the plaintiff against loss by fire, from August 5, 1890, to August 5,1891. Said policy contained, in effect, the following provisions: That persons sustaining loss or damage by fire should within six days give notice of such loss to the company, and within thirty days thereafter render a particular and specific account of such loss, signed and sworn to by them, as therein prescribed, and should produce the usual certificate of a magistrate or notary public, as therein prescribed; that the amount of loss or damage should be estimated according to the actual cash or market value of the property at the time of the loss, and be paid sixty days after the proofs of the same required by the company should be made by the assured and received at the company’s office in Chicago; that the amount of sound value and of damage to the property, or any part thereof, might be determined by mutual agreement between the company and assured, or, failing to agree, the same should then be submitted to competent and impartial arbitrators, to be selected as therein provided; that the award of said arbitrators should be binding and •conclusive as to the amount of such loss or damage, but should not determine the validity of the contract, nor the liability of the defendant, nor any other question, except •only the amount of such loss or damage; and that no suit or action against the' defendant for the recovery of any claim by virtue of said policy should be sustainable until after an award should have been obtained, fixing the amount of such claim in the manner provided, which was thereby agreed to be a condition precedent.</p> <p>The complaint alleges, in effect, that September 14,1890, said property was damaged by an accidental fire, occurring without any negligence on the part of the plaintiff, in the sum of $825; that the plaintiff gave due notice, and duly performed all the conditions of said contract of insurance to be performed on his part; that the amount of said insurance became due and payable September 14, 1890. Judgment is demanded for the amount of such loss and interest from the date last named.</p> <p>The defendant answered, and admitted the incorporation and organization of the defendant under the laws of New York, and its right to do business in Wisconsin, the issuance of the policy as alleged, and the destruction of the property as alleged, but denied any knowledge or information sufficient to form a belief as to the amount of such damage or injury. The answer also alleges, in effect, that the plaintiff had failed and neglected to comply with the terms and provisions of said policy by failing and neglecting, within six days, to give the notice in writing required, and by failing and neglecting to render to the defendant a particular and satisfactory account of such loss, signed and sworn to by the plaintiff, thirty days thereafter, as required; by failing and neglecting to state whether there was any and what other insurance there was on the property; by failing and neglecting to state the actual cash value of the property; by failing and neglecting to produce and furnish to the defendant a certificate of a magistrate or notary public as required. It is also alleged that no notice, in writing or otherwise, and no proofs of loss, or said certificate, or information, or statement relative to said loss or conditions in said policy, was ever given to the defendant at any time, except that on or about December 11, 1890, the defendant received by mail, at its general office at Chicago, what purported to be proofs of loss and the certificate of a notary public relative thereto; that no arbitration had ever been had to determine the amount of such loss or damage; that no demand had ever been made by the plaintiff for any such'arbitration; that no cause of action could accrue to the plaintiff under the policy until after the amount of loss or damage should be ascertained according to the method provided in the policy.</p> <p>At the close of the trial the jury returned a special verdict to the effect that the plaintiff was the owner of the property insured during the times mentioned; that its value, in the aggregate, was $1,069.10; that the plaintiff gave notice of the loss by fire within the time required by the policy; that tbe plaintiff sent to the defendant by mail, at Brooklyn, N. Y., proofs of said loss, with a certificate of a magistrate annexed thereto, September 28, 1890; that the defendant received the proofs of loss mailed to it on that day; that the defendant never returned said proofs, nor objected to the same; that there was no arbitration ever had or any award by arbitrators ever made as to said loss or the amount thereof; that neither party ever requested that said loss, or the amount thereof, be submitted to arbitration; that the defendant never denied nor disputed the fact nor the amount of said loss as claimed by the plaintiff, nor ever communicated nor in any manner negotiated or conferred with the plaintiff in respect to said loss or the amount thereof; that the property insured was totally destroyed by said fire. Judgment was thereupon ordered to be entered upon said special verdict in favor of the plaintiff and against the defendant for $857.54. From that judgment the defendant appeals.</p> <p>They contended, inter alia, that the trial court should have d'h rected a judgment for the defendant, for the reason that no arbitration was ever had or demanded by the plaintiff. Executory contracts agreeing that the damages shall be settled by arbitration before any suit shall be brought are valid. Greenhood, Pub. Pol. 470; Hull v. Norwalk F. Ins. Go. 57 Conn'. 105. Such contracts are of two classes: (1) Where the agreement is held to be collateral, as in Phoenix Ins. Go. v. Badger, 53 Wis. 283; Cornfield v. Water-town F. Ins. Go. 55 id. 420; and Oakwood Retreat Asso. v. Bathborne, 65 id. 182. (2) Where the agreement is held to be a condition precedent. This contract is of the latter class, it being expressly agreed that the award shall be a condition precedent. See Seott v. Avery, 5 H. L. Cas. 811; Greenhood, Pub. Pol. 471, note 1; Bedell v. Kennedy, 109 N. Y. 153; Enochs v. G, M. <&s St. P. R. Go. 34 Fed. Rep. 471; Doyle v. Patterson, 84 Ya. 800; Herrioh v. Belknap's Esti 27 Yt. 673; D. & H. Canal Go. v. Pa. Go. 50 N. Y. 250; Hamilton v. I. dk I. da G. Ins. Go. 136 U. S. 242; Morley v. I. <& L. <& G. Ins. Go. 85 Micb. 210; Perkvns v. XJ. 'S. E. L. Go. 16 Fed. Rep. 513; Hutchinson v. L. & L. <$¡ G. Ins. Go. 153 Mass. 143; Lovejoy v. Hartford F. Ins. Co. 11 Fed. Rep. 63; Holmes v. Bichet, 56 Cal. 307; Old Sauoelito L. & D. D. Go. v. Gomm. U. A. Go. 66 id. 253; May/Ins. sec. 493; Wood, 'Ins. 757; Liverpool <& L. <& G. Ins. Go. v. Oreighton, 51 G-a. 95; U. S. v. Robeson, 9 Pet. 319; Pioneer Mfg. Go. v. Phcenios Ass. Go. 106 N. C. 28.</p> <p>They argued, among other things, that under provisions like those in this policy indemnity is not forfeited by delay in furnishing proofs. Kenton Ins. Go. v. Downs, 13 S. W. Rep. (Ky.), 882; Tubbs v. Dwell/mg House Ins. Go. 84 Mich. 646; Columbia Ins. Go. v. Lawrence, 10 Pet. 507; Coventry Mut. L. S. Ins. Asso. v. Evans, 102 Pa. St. 281; May, Ins. sec. 465; Lafarge v. L. & L. & G. Ins. Go. 17 L. Can. Jur. 237; Weir v. Horthern Counties of Eng. Ins. Go. 4 L. R. Ir. App. 689; Farmers' Ins. Go. v. Friclc, 2 Cin. L. Pul. 16; Carpenter v. German Am. Ins. Go. 52 Hun, 249; Sun Mut. Ins. Go. v. Maiti/ngi/y <& B. 77 Tex. 162; McMaster v. Ins. Go. of N. A. 55 N. Y. 222; Niagara F. Ins. Go. v. Seammon, 100 Ill. 644; 7 Am. & Eng. Ency. of Law, 1048; Fillips v. Putnam F. Ins. Go. 28 Wis. 472. There was no forfeiture for failure to obtain an award. By the terms of the policy the condition precedent is an award on some “ subject of difference,” the parties “ failing to agree.” If no “ subject of difference” or failure to agree exists before action is brought within other provisions of the policy, an award is not required and hence not a condition precedent. A thing which under the policy cannot occur, cannot precede the action. Phoenix Ins. Oo. v. Badger, 58 Wis. 288; Bdileyn. ^Etna Ins. Oo. 77 id. 336; Farnum. v. Plmniw Iñs. Oo. 83 Cal. 246; Randall v. Phoenix Ins. Oo. 10 Mont. 362; Rg-senwald v. Phoenix Ins. Go. 50 Hun, 172. This-stipulation to arbitrate was revocable by either party in spite-of. the condition; and was revoked by the commencement of'this action. Oomm. Union Ass. Oo. v. HoeJwng, 115 -Pa. Sfc. 40Yr, Mente v. Armenia F. Ins. Go. 79 id. 480; Hostetter v. Pittsburgh, 107 id. 419; Gray v. Wilson, 4 Watts, 41; R. S. secs. 3565-67; Heath v. N. Y. G. Exchange, 38 How. Pr. 1.68; Bloomer v. Sherman, 2 Edw. Ch. 452; S. 0. 5 Paige, 575.</p>

<p> (Í) Limitation of actions: Bar in favor of sheriff when not available to indemnitors. (2) Judgment of dismissal when a bar. (3) Joint tort-feasors: Election between remedies. </p> <p>1. Plaintiffs property was seized on attachment and sold on execution as the property of another person. In an action commenced more-than three years thereafter against the sheriff, the attachment plaintiff, and the sureties of the latter on a bond of indemnity given to the sheriff, it is held that although the action is barred as against the sheriff by limitation of sec, 4223, R. S., such bar is not available to the other defendants, who, as to the plaintiff, are all principals- and each separately and independently liable.</p> <p>2. A judgment of dismissal, entered upon a mere stipulation to dismiss, is not a bar to a subsequent action for the same cause.</p> <p>3. Where a party has separate and concurrent remedies against joint tort-feasors, the commencement of an action against some of them is not such an election between remedies as will prevent him, after the discontinuance of that action, from joining others of them in a subsequent action against one or more of the defendants in the prior action.</p>

<p>ERROR to the Circuit Court for Taylor County. The defendant in error sued Duncan for the wrongful and unlawful cutting and carrying away of pine timber and saw-logs, the property of the plaintiff, from certain premises, of the alleged value of $1,000,- and for converting the same to his own use. The defendant answered by a general denial. An order was made referring the action to a referee, to hear, try, and determine it; but the order does not show that the defendant consented to the reference, and the record is silent on'that subject. The parties appeared before the referee, and proceeded to trial, at which ten witnesses were examined on the part of the plaintiff, and eight on the part of the defendant. Yarious rulings in regard to evidence were made by the referee, which were subsequently affirmed by the court, but they present no point deserving of special notice. The referee found the defendant liable for 67,000 feet of lumber, valued at $737. The defendant excepted to the report, among other things, that as to the amount with which the defendant was charged it was contrary to evidence; and that the referee “ had no authority or jurisdiction to hear, try, or determine the action.” Upon motion to confirm the report, the circuit court reduced the amount found against the defendant to •23,500 feet, of the value of $258.50, and made an entirely new finding, ordering judgment accordingly, and denied the defendant’s motion to set aside the report. The defendant excepted to the 'findings of the court as to the facts, and also that the court should have held that the reference is and was “a mere arbitration and discontinuance of the action.” The defendant objected before the clerk to various items of the plaintiff’s costs, and, as his objections were overruled, he appealed from the taxation to the court. The court disallowed various items, and overruled the objections to others hereinafter noticed. The defendant sued out a writ of error'upon the judgment rendered against him.</p> <p>contended, inter alia, that this is an action of tort and could not be referred without the written consent of the parties; and a reference without such consent is a mere arbitration and a discontinuance of the action. Littlejohn v. Regents, 71 "Wis. 437; Stacy v. M., L. S. do W. R, Go. 72 id. 331; Messenger '0. Broom, 1 Pin. 630. The statute should be strictly pursued, and the facts giving jurisdiction should appear on record. Shaw v. Rent, 11 Ind. 80. A referee has judicial powers, and can obtain these only through an order of court based on the written consent of the parties; or at least the consent should be given in open court and entered on the minutes. Stone v. Merrill, 43 Wis. 72; Mead v. Wallcer, 17 id. 189; Waterman v. Waterman, 37 How. Pr. 36; Thatcher v. Powell, 6 Wheat. 127. The appearance of the defendant, Duncan, before the referee and going to trial did not give the referee jurisdiction. Damp Dane, 29. Wis. 419; Gamp v. Root, 18 Johns. 22; Green r. Patchi/n, 13 Wend. 294; Van Slylce v. Trempealeau Go. F. M. F. Ins. Go. 39 Wis. 390.</p>

<p> Opening default: Oral agreement to extend time to answer: Excusable neglect. </p> <p>Plaintiffs’ attorney granted orally defendant’s request for a few days’ extension of the time within which to answer. Defendant says the extension was granted unconditionally, but plaintiffs’ attorney ■ says it was upon condition that defendant accept short notice of trial. Defendant’s attorney having refused to stipulate for such short notice, plaintiffs’ attorney refused to receive the answer and took judgment by default Held, that although the oral agreement to extend the time was not binding, yet, in view of it, the failure to answer in time was due to inadvertence or excusable neglect, and, the proposed answer showing a meritorious defense, the default should be opened on terms.</p>

<p> Towns: Issuance of bonds for town hall: Bequest for submission to vote: Notice of special town meeting: Pleading. </p> <p>1. To justify the issuance of town bonds for the purpose' of raising money to build a town hall, in pursuance of a vote said to have been taken at a special town meeting, it must appear by the town records that the request for the submission of the question to a vote was made in writing, signed by at least twelve freeholders of the town, as required by subd. 10, sec. 776, E. S. And in an action to restrain the issuance óf such bonds a complaint alleging that “ it does not appear ” that said request was so made is sufficient.</p> <p>2. The notice calling the special town meeting to vote upon such question is fatally defective where it states that such meeting will be held at the several voting places of the town, there being more than one such voting place.</p> <p>3. Under sec. 789, E. S.,— providing that the town clerk shall cause notices of a special town meeting “ to be posted up in three of the most public places in the town, giving not less than fifteen nor more than twenty days’ notice of such meeting,” — a notice of. more than twenty days is fatally defective.</p> <p>4. A notice of a special town meeting, signed “ T. H.” without any official designation, is fatally defective where there is nothing in the notice to show that T. H. was the town clerk.</p> <p>•5. A complaint alleging that the notice was not posted up in three of the most public places in the town, is held, on demurrer, to allege sufficiently a defect in the proceedings.</p>

<p> Liens on logs and lumber: Repeal of statutes: Continuation of old law: Limitation of actions: Commencement of action to enforce lien: Service by publication. . </p> <p>1. Ch. 413, Laws of 1889, although in terms it repeals sec. 3329, E S., which is embodied therein, is construed as a mere continuation of that section as amended, and not a repeal and re-enactment thereof.</p> <p>'2, Sec. 3332, E S., as amended, provides that a lien claim shall cease to be a lien upon logs, etc., unless action to enforce the lien be commenced'within four months after the filing of the petition for a lien. Sec. 2629 provides that a civil action “ shall be commenced by the service of a summons. Prom the time of such service or the issuance of a provisional remedy, the court shall be deemed to have acquired jurisdiction.” Within four months after the filing of the petition, the logs upon which a lien was claimed were seized upon an attachment issued in an action to enforce the lien; but, the defendant being a nonresident and service by publication being necessary, the summons was not served upon him until after the expiration of said four months. Held, that the right to a lien was not lost</p> <p>3. Publication of a summons on the first day of each of six successive weeks — the first publication being on October 6 and the last on November 9 — is a publication “once a week for six weeks,” under sec. 2640, E S., the service becoming complete at the end of the sixth week, i. e., on November 16.</p>

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>Trespass for cutting and removing a quantity of pine timber from plaintiffs’ lands. The defendants, by their answer, claimed title to the lands from which the timber .was cut.</p> <p>The land from which the timber was cut was in section 30, township 42 N., of range 3 E., in Ashland county. This section is intersected by the Flambeau river, and was surveyed and sold in lots instead of regular subdivisions. The controversy here arises principally from the fact that the actual location of the river and its location as meandered and as indicated upon the government plat differ very widely. The map on the next page shows this difference.</p> <p>This map is a substantially correct copy of the government plat, so far as the land in controversy is concerned, except that the stream marked “ River as actually located ” does not appear upon the government map. Plaintiffs proved title from the United States to lot 5 in said section, according to the official plat and survey. Defendants proved title in like manner to lot 7.</p> <p> </p> <p>Upon the trial the jury found, in reply to special questions, that the defendants cut and removed 185,000 feet of timber from what would be (if the section were regularly subdivided) the northwest quarter of the southeast quarter of said section, north of the river as actually located; that defendants cut 2,800 feet of timber on lot 5, north of the meandered line as indicated on the plat; and that the value of the logs per thousand was $6.25. Upon this verdict the circuit judge held that the plaintiffs were entitled to recover only for the value of the 2,800 feet of timber cut from that part of lot 5 north of the meandered line,' for which sum, with costs, judgment was entered. Plaintiffs appealed from the judgment, claiming that they were entitled to judgment for the value of the entire 185,000 feet.</p>

<p>APPEAL from the Circuit Court for Bayfield County.-</p> <p>The following statement of the facts was prepared by Mr. Justice LyoN in connection with the opinion upon a motion to fix the amount of an undertaking to be given by the appellant to stay proceedings, pending the appeal, upon the judgment appealed from:</p> <p>This is a contest for the office of treasurer of Bayfield county. At the general election held in November, 1890, Alonzo. Knight, the appellant, who was then the incumbent of the office, and Alfred M. Warden, the respondent, were opposing candidates for election to such office. Warden was duly elected thereto for the ensuing term, to commence on the first Monday in January, 1891. Tie deposited his oath of office and an official bond with the county clerk of Bayfield county within the time, and such instruments were in the form, prescribed by the statute, and thereupon demanded of Knight the office, and the moneys, books, and papers pertaining thereto. Knight refused to surrender the same, for the reason that the official bond of Warden had not been approved as required by sec. 102, R. S. It appears that the bond had not been thus approved.</p> <p>In March, 1891, Warden commenced this action of quo viarranto against Knight to recover the office. The action was tried in the circuit court in October, 1891, and the trial resulted in a verdict (directed by the court) that Warden is entitled to the office. November 12,1891, judgment was entered establishing such right and ousting Knight from the office. On the 2oth of the same month Knight served on the proper persons notice' of an appeal to this court from such judgment, but served no undertaking on the appeal until December 12, 1891, when he served the undertaking for costs prescribed in sec. 3052, R. S.</p> <p>On December 1, 1891, the circuit judge before whom the cause was tried denied an application by Knight to fix the amount of the undertaking required to stay proceedings on the judgment pending the appeal. On-the next day Warden took possession of the office without actual force, and presumably is still in possession and in the exercise of the duties thereof. On the same day (December 2) Warden commenced a summary proceeding against Knightj under the statute (R. S. secs. 978, 3472), to compel delivery to him of the moneys, books, and papers pertaining to the office.</p> <p>On December 7, 1891, one of the justices of this court, on the application of Knight, granted an order upon Wa/rden to show cause why this court should not fix the amount,of the undertaking to be given to stay proceedings under the judgment, pending the appeal, and in the meantime staying such proceedings until the further order of this court.</p> <p>The foregoing is an outline of the material facts shown. by the motion papers. Many other proceedings not here stated have been taken, but inasmuch as they have no influence in the determination of the motion it is unnecessary to state them.</p>

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>. In 1884 the plaintiff corporation owned a town site called “ Bad Eiver,” in Ashland county, and was operating a-saw-mill thereon. The settlers in Bad Eiver were mostly employees of the company. In that year the company, by one Knab, its general manager, agreed to donate to the defendant certain lots in such plat, on condition that he erect a boarding house thereon. The lots were to be conveyed to him when the building should be erected and the plat recorded. He erected such building pursuant to the agreement, and the plat was afterwards recorded. The plaintiff claims that there was an oral understanding and agreement between it and the defendant that the latter should not sell or keep intoxicating liquors on said lots, and that the conveyance thereof, when executed, should contain a condition to that effect.</p> <p>In 1889 the defendant commenced altering his building, with the avowed purpose of opening a .saloon thereon for the sale of intoxicating liquors. The plaintiff company thereupon tendered to him a deed of such lots, executed by it, for his execution and acceptance. It contained a condition subsequent against selling or keeping intoxicating liquors on the lots, with a forfeiture clause for condition broken. The defendant refused to accept the deed. Thereupon the plaintiff brought this action. It sets forth in its complaint the facts, and alleges the agreement as above stated. The defendant, by his answer thereto, denies the agreement, and admits that he is about to do the acts charged.</p> <p>After trial of the action the court filed findings of fact, to the effect that the agreement stated in the complaint was made by the parties. Judgment for the plaintiff was duly entered, requiring it to execute a conveyance of the lots to defendant, containing the aforesaid condition subsequent, for his acceptance, and enjoining him from keeping or selling intoxicating liquors on the lots until he accept such conveyance. Defendant appeals from the judgment.</p>

<p> Assault with intent to do great bodily harm: Felony: Sentence. </p> <p>An assault with intent to do great bodily harm is not “an assault with intent to commit any felony,” within the meaning of see. 4696, R. S.; and where a defendant charged with an assault with intent to do great bodily harm is found not guilty of such intent, but guilty of the assault, he cannot be sentenced under said sec. 4696, but should be sentenced as for a simple assault only, under sec. 4398.</p>

<p>ERROR to tbe Circuit Court for Vernon County.</p> <p>An information in due form was filed in tbe circuit court for Monroe county by tbe district attorney of that county, charging that on February 9, 1889, at said county, John T. Richards did feloniously kill and murder one John G. Mooney by stabbing him with a knife, with a premeditated design by Richards to effect Mooney’s -death. The place of trial was changed to Yernon county. The accused was tried on the information in the circuit court for Yernon county, in October 1890, and convicted of murder in the first degree, as charged in the information. The court denied a motion for a new trial, and sentenced the accused to imprisonment in the state prison for life. He has sued out a writ of error from this court to obtain a review and reversal of the judgment.</p> <p>The case is further stated in the opinion, in connection with the statement and discussion of the several errors assigned by the plaintiff in error.</p> <p>They contended, inter alia, that the incompetency of a wife to give testimony against her husband extends to the making of a complaint charging him with an offense. Thomas 'o. State, 14 Tex. App. 70; 5 Orim. L. Mag. 733; People v. Sebring, 66 Mich. 705; Oomm. ex rel. Boyd v. The Jailer, 1 G-rant Cas. 218; 14 Grim. L. Mag. 13. "While the plaintiff in error might have waived an examination, he could not waive this salutary rule which the law interposes in his behalf. The rule is so inviolable that no consent will authorize the breach of it. 2 Kent’s Comm. 178; 3 Crim. L. Mag. 155-158. It was error to admit testimony of the statements of plaintiff in error’s wife, claimed to have been made in his presence. Oomm. v. Kenney, 12 Met. 235; Oomm. v. Harvey, 1 Gray, 487; Comm. v. Gala-van, 9 id. 271; Oomm. v. Brailey, 134 Mass. 527; Laner-gan v. People, 39 N. Y. 39; Yail v. Strong, 10 Yt. 457; Gale v. Li/neol/n, 11 id. 152; Mattoclcs v. Iyma/n & Oole, 16 id. 113; 7 Am. & Eng. Ency. of Law, 55; 9 id. 339; 1 Greenl. Ev. (14th ed.), sec. 258, note a, and sec. 199.</p> <p>To the point that the statements made by Mrs. Eichards in the presence of the plaintiff in error, not contradicted or denied by him, were properly admitted, they cited 1 Greenl. Ev. secs. 197-215; Rex v. Smithies, 5 Car. & P. 332; Rex v. Bartlett, 7 id. 832; People v. McGrea, 32 Cal. 98.</p>

<p> Highways: Defects: Injury to person: Evidence. </p> <p>In an action for personal injuries alleged to have been caused by defects is a highway, the evidence — tending to show, among other things, that at the place of the accident the traveled track narrowed to cross a culvert shorter than the width of such track; that at one end of the culvert was a hole two or three feet deep; that while plaintiff was being driven along the road in the night time the wheel of his wagon ran into said hole, and the wagon was upset and plaintiff injured; that both plaintiff and the driver were familiar with the highway, but neither had ever observed the defect • therein, although it had existed for a long time; that both were in the exercise of reasonable care at the time; and that it was too dark to see the hole or the precise location of the culvert — is held sufficient to sustain a verdict for plaintiff.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The opinion states the facts.</p> <p>They cited Wood, Frauds, 426, 431-434; Galvin v. Prentice, 45 N. T. 162; Riley v. Williams, 123 Mass. 506.</p>

<p> Sale of chattels: Statute of frauds: Acceptance: Delivery. </p> <p>1. A sale of corporate stock of the value of more than $50 having been agreed upon orally, the certificates were delivered to the vendee, upon the expectation that he would pay therefor at once, but he, not having the money with him, handed them back to the vendor and requested him to send them to a certain bank with a draft upon the vendee for the price. Held, that the vendee had not accepted and received the stock, within the meaning of sec. 2308, R. S., hut had merely agreed to buy the stock and to accept and pay for it afterwards at the bank; and that such agreement, not being in writing, was void.</p> <p>2. The vendor sent the certificates to the bank named, with a draft on the vendee for the price, instructing the bank that the certificates were to be delivered to the vendee upon payment of the draft. Held, that this was not a delivery to the vendee, and. his oral agreement being void, he was not bound to accept or pay for the stock.</p>

This is an appeal from an order dismissing an appeal from a justice’s court to the superior court of Milwaukee county, because the appeal was not brought to hearing before the end of the second term, as required by sec. 3766, R. S. Upon the motion to dismiss it appeared, by affidavits filed in opposition to the motion, that the appellant seasonably served a notice of trial for the third term, service of which was admitted by respondent’s attorneys, but that said notice was…

<p>(I) Special verdict: New trial. (2) Negligence: Letting vicious horse: Court and jury.</p> <p>1. If there is any evidence to support a material finding, it cannot be stricken from the special verdict or a directly opposite one substituted for it. If a finding is against a decided preponderance of' the evidence, the remedy is by motion for a new trial.</p> <p>2. Plaintiff was kicked and injured by a mare hired by him from defendants. In an action for such injuries, based upon alleged negligence of defendants in not warning him of the vicious character of the animal, the jury found specially that defendants did warn him that the mare was liable to kick when she got her tail over the reins; that she did not get her tail over the reins before she kicked plaintiff; and that she was not accustomed to kick, so as to be dangerous, when driven in single harness, when she did not have her tail over the reins. They found, also, that defendants were in the habit of using a kicking strap with her when she was driven in single harness, but that they did not furnish such strap when they let the mare to plaintiff. Held, that the court cannot say, as matter of law, that the failure to furnish a kicking strap was negligence for which defendants are necessarily liable.</p>

In 1858 the defendant, Henry Vicmden, sold and conveyed to one Franke a parcel of land (being part of a larger tract owned, and the balance of it still owned, by him) in section 12, township 6 N., range 21 E., in Milwaukee county, bounded as follows: Commencing 17-J- chains north of the southeast corner of section 12, running thence west 14 chains 89 links “ to the right bank of the Kinnickinnie river; thence along the bank of said river in a southwesterly direction to a…

<p> Sale of chattels: Rescission for fraud: Election: Replevin: Reliance upon false representations: Court and jury. </p> <p>1. An action for the purchase price of goods is not such an election to affirm the sale as will prevent a subsequent action of replevin for the goods on the ground that the sale was induced by false representations, where such prior action was brought by direction of the vendors’ agent without their knowledge or consent and in ignorance of the representations or their falsity, and where the vendors dismissed that action as soon as they learned of it</p> <p>% Nor is an attachment suit, brought subsequently to the replevin action and upon a part of the indebtedness not included therein, an election as to any matter involved in such replevin action.</p> <p>8. It appearing in the replevin action that plaintiffs also consulted the reports of collecting agencies with reference to the vendees, the question whether they relied upon the information thus obtained or upon the statements of the vendees as the inducement to sell the goods, was a question of fact for the jury.</p>

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>This is an action for personal injury sustained by the plaintiff while engaged in traveling on West Water street, in Milwaukee, at a point between Clybourn and Sycamore streets, upon horseback, as a messenger boy, by reason of the horse stumbling and falling upon the plaintiff, and the car running into and injuring him. The complaint is in the usual form in such cases. The answer consists of admissions of incorporation, etc., denials, and alleges as a separate and second defense to the complaint that any injury sustained by the plaintiff was caused by his own negligence, directly contributing thereto.</p> <p>The trial judge, in his charge to the jury, stated, in effect, that there are two different accounts that are given by the witnesses of this transaction and of the manner in which it occurred. One is an account given by the plaintiff' himself, of the fact that he was riding along the street on a horse, and that the horse accidentally stumbled or slipped and fell, and that he fell under the horse, some 150 feet ahead of the street car, and that while lying there the wheel of the car ran over his arm and crushed it in the manner described. The other account is on the part of the defendant, and is, in substance, that he fell from his horse or the horse fell down by the side of the street car after the car had passed by him, and the horse fell and the boy fell down under him, if he fell at all, by the side of the car- or near the rear end of the car. At the close of the trial the jury returned a verdict in favor of the plaintiff for $2,500. From the judgment entered thereon the defendant appeals.</p>

<p>APPEAL from tbe Superior Court of MiVwcmhee County.</p> <p>This is an appeal from an order amending the summons and complaint by striking out the word “ way,” where it occurs in the name of the defendant, and inserting the word “ road.” The summons was served October 29, 1890, and the complaint November 26,1890. The complaint is for the abatement of an alleged nuisance adjoining the plaintiff’s premised, consisting of noise, smoke, steam, and gases coming from an electrical power house, which it is alleged is owned and operated by the defendant'. An answer, the material part of which consisted of a general denial, was served December 16, 1890, and thereafter the case was twice noticed for trial by plaintiff. When on the calendar for the April term, 1891, of the superior court of Milwaukee county, plaintiff made a motion to amend the defendant’s name by striking out the word “way,” and inserting the word “ road,” which was' granted. Affidavits were submitted on both sides on this motion, from which the following state of facts appears:</p> <p>In December, 1888, a corporation was organized, bearing the nam'e of the West Side Railway Company, which acquired a franchise to build and maintain street railways in Milwaukee, but had no franchise to operate an electrical railway or power bouse. This corporation built its railway, and operated it bjr animal power, and used the building now used as a power house, and complained of in this action, as a stable for horses. June 5, 1889, a corporation was organized for the purpose of operating street railways in Milwaukee, called the West Side Railroad Company, and on the 7th of June, 1889, the West Side Rail/way Company conveyed to the West Side Railroad Company all its property, real and personal, and its franchises, since which time the rail “ way ” company seems to have done no business. The rail “ road ” company subsequently acquired an electrical franchise, and operated its lines by electricity, using the building' here charged to be a nuisance as a power house. The summons was served on Washington Becker, who was and is president of both companies.</p> <p>[The plaintiff moved to dismiss the appeal on the grounds, among others, that the order appealed from is not an ap-pealable order within the meaning of sec. 8069, R. S., and that the appellant, the West Side Railway Company, is not aggrieved by said order and has no right to appeal therefrom, its only reason for appealing being that the trial court decided that it had not been sued. The motion was denied November 17, 1891.]</p> <p>They cited Governor of Georgia v. Mad/i-azo, 1 Pet. 122; Hawes, Jurisdiction, sec. 230; Osborn v. Bcmk of D. S. 9 Wheat.-856; McHutt v. Bland, 2 How. 23; Eliott v. Holmes, 1 McLean, 466; Bates de H. v. State Bcmk, 7 Ark. 394; McCravey v. Cox, 24 Ark. 574; Moulton v. De MaCmty, 6 Rob. (N. Y.), 470; King v. Randleit, 33 Cal. 318; Fanning v. Krapfl, 61 Iowa, 417; Packard v. Wood, 17 Abb. Pr. 321; Davis v. Mayor, 14 N. Y. 506; Hew York S. M. M. P. Asso. ¶. Remington A. Works, 89 id. 22; Bassett v. Fish, 75 id. 303; Board of Supervisors v. Miller, 4 Hun, 71; Browñ v. T. JBJ.<& I. B. Co. 8 Am. Corp. Oas. 270; Gardner v. Kraft, 52 How. Pr. 499; Dousman v. Milwaukee, 1 Pin. 81.</p> <p>They argued, among other things, that the amendment was a mere correction of a misnomer and not a substitution of a different party defendant. Sherman v. Props. Conn. P. Bridge, 11 Mass. 337; Burnham v. Savings Bank, 5 N. H. 573; Heckman's Aclrn'r v. L. & N. P. Go. 85 Ky. 631. Amendments in the name of a corporation defendant from “ Railway ” to “ Railroad ” and vice versa have often been permitted, and in every instance have been sustained by the appellate court. Galveston, H. dc S. A. P. Co. v. Donahoe, 9 Am. &Eng. R. Oas. 287, 56 Tex. 162; Chicago <& I. A. L. P. Co. v. Johnson, 13 Am. & Eng. R. Cas. 181; Central <& M. P. Co. v. Morris, 28 id. 50. A legal proceeding relating to a corporation is not inoperative by reason of a slight variation in the company’s name, if the identity of the corporation is clearly indicated. 1 Morawetz, Corp. sec. 354; Chancellor of Oxford's Case, 10 Co. 54, 57; Sou-hegan JKail, C. & W. Factory v. McConihe, 7N. H. 309.</p>

This action was brought to recover against the defendants damages claimed to have been sustained by the plaintiff by reason of the alleged fraud and deceit of the defendants in respect to the location of five certain lots of land in Stanhope’s subdivision No. 2, in Milwaukee county, which were exchanged by the defendants Bing and Hannah Abraham in addition to a cash payment of $1,500, for a stock of goods owned by the plaintiff, Gunther.

The action is to recover the .contract price of 500,000 “ Cachet Wafers.” The defense is that the wafers delivered were not of the quality contracted for; were not suitable for the purpose for which they were purchased; and that after the wafers had been sent to him defendant rescinded the purchase and offered to return them to plaintiff. A more full statement of the case will be found in 79 Wis. 567, the case having been here on a former appeal.

Eeplevin. The facts are stated in the opinion. The defendants appeal from a judgment in favor of the plaintiff. They contended, inter alia, that the mortgage and agreement must be construed together as one paper. Ilagerty v. Hoyt, 69 Wis. 317, 323; Winner v. Hoyt, 66 id. 227, 234; Ilerbst v. Lowe, 65 id. 316; Blakeslee v. Rossman, 43 id. 116. They were void because the agreement, being part of the mortgage, was not filed. S. & B. Ann.

This action was commenced March 5, 1890. The complaint, among other things, alleges, in effect, that on and prior to April 25, 1860, Carl Mueller and Elizabeth Mueller, his wife, and John F. W. Mueller and the defendant Ma-thilda, his wife, owned and held the legal title to the premises described, and executed and delivered to one Yictor Koenemann a quitclaim deed of the same, which was recorded ; that on the same day Koenemann and wife executed and delivered to the said…

APPEALS from the Circuit Court for Milwaukee County. These cases all present the same question. Each is an appeal by the defendants from an order changing the place of trial of the action from the circuit court of Milwaukee county to the superior court, upon an affidavit of prejudice made by one of the defendants. The motion in each case was made after one continuance in the action <at defendants’ instance.

This action was brought for the recovery of damages for ,personal injuries sustained by the plaintiff while descending from a train of the defendant company on which the said plaintiff was a passenger, at its station in Milwaukee, caused, as alleged, by the negligence of the defendanthn not providing safe or suitable appliances or means for the descent of passengers at its regular passenger station at that city, and the failure to render her personal assistance in alighting.

This action is upon a contract entered into by the defendant life association with one Ludwig Bachmeyer, in and by which, on certain conditions therein specified, the association insured the life of Bachmeyer in the sum of $2,000, for the use and benefit of the plaintiff, who was his wife.

Action to recover the sum of $1,370.80, with interest, being the amount alleged to be due the plaintiff for services rendered and expenses incurred under a written contract. The facts sufficiently appear from the opinion. The defendants appeal from a judgment in favor of the plaintiff for $1,350.35, with interest and costs.

This-action was commenced January 3, 1889. The complaint alleges, in effect, that April 8, 1885, the defendant Young was appointed lumber inspector of district No. 2, and thereupon qualified as such by executing a bond as principal, with the other defendants as sureties, to the county of La Crosse, in the penal sum of $5,000; that the conditions of said bond are to the effect that if the said Young shall faithfully perform his duties as such lumber inspector, and deliver to…

This action was commenced' July 22, 1891. The complaint alleges, in effect, that the plaintiff is a resident and tax-payer of the city, and is now, and for the past five years has been, the owner in fee of lot 1 and the N. £ of lot 2, in block 48, of the Second ward of the city, which lots- are bounded on the west by Third street, having a frontage thereon of sixty feet, and on the north by Prairie street, having a frontage thereon of 147 feet; that there is a building on…

Plaintiff’s intestate was,killed by being struck by a locomotive drawing a passenger train, at or near the crossing of Muskego avenue over the defendant’s tracks, in the city of Milwaukee, at about 8 o’clock p. m., November 7, 1888. There were several parallel tracks at the place of the accident.

'APPEAL from the Circuit Court for Dane County. This is an action to recover for personal injuries suffered by plaintiff by the falling of the east side of an ice-house owned by defendants. The ice-house was built in March, 1890, and was in four sections or parts, each section being 34 feet by 100 feet, and being practically separate buildings, but joined together, one tow of studding answering for the sides of two adjoining sections. Each section had its own gable roof.

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

Trover for a stock of books and stationery. The defendant justified as sheriff under a writ of attachment against the property of one Henry Michelstetter and claimed that the stock of goods was the property of said Henry and had been conveyed to plaintiff in fraud of creditors. It appeared by the evidence that Henry Michelstetter originally owned the stock of goods.

This action was commenced November 24, 1890, by the plaintiffs, on behalf of themselves and of other creditors of the defendant Fuller who should come in and contribute to the expenses of the action, for the purpose of setting aside as fraudulent and void an assignment executed by Fuller for the benefit of his creditors to the defendant Stacy, June 30, 1888, and to have a receiver appointed of the property in the hands of said assignee, and to require him to account in full…

Ten years ago the plaintiff brought an action against the defendant, the American Express Company, to recover damages for personal injuries which he claimed to have received in 1881, because of the negligence of one Colvin, who was alleged to be the agent and manager of the defendant’s office at Oshkosh.

■ APPEAL from the Circuit Court for Winnebago County. This action was for the foreclosure of a mortgage, and notice of the pendency of it was filed May 26, 1887.

On December 22, 1887, one Bartell made an assignment for the benefit of creditors to the defendant, Mrs. Pier. On January 20, 1888, the plaintiff commenced an action against Bartell, and garnished the defendant, Mrs. Pier, and subsequently obtained a judgment against Bartell in the principal action for over $800. On the trial of the garnishee action it was found that Mrs. Pier had property in her hands, which she rightfully held under the assignment.

Garnishment in aid of an execution upon a judgment in favor of plaintiff against one Horatio G. Mathews, upon which judgment over $4,000 was due in April, 1890, when the garnishee summons was served. The answer was a denial of all liability under tbe statute, upon wbiob plaintiff took issue. It appeared upon tbe trial that on tbe 1st of April, 1886, tbe garnishee received from H. Gr.

This action was brought to enjoin and restrain the defendant city and its clerk from proceeding to levy taxes upon lots 37, 38, 39, 40, 48, 49, and 50, of block 26 of the original plat of the city, the property of the plaintiff, valued for taxation in 189Ó by the assessor at $40,000, and increased by the board of review to $55,000, until a revision and revaluation of the same might be had; and that if the tax shall have already been levied the defendants be restrained from…

Action to foreclose a subcontractors’ lien upon the premises of the defendant Stachlewicz for lumber sold and delivered to the principal contractors and used in the erection of a building upon said premises. It was proven that there was due the plaintiffs from the principal contractors §267.23, and that due notice of the claim for a subcontractors’ lien was served upon the owner.

The action is to recover damages for injuries to plaintiff and his property, alleged to have been caused by the construction and maintenance by the defendant city of a sewer in Forest street in said city, which discharges into the east branch of the Fond du Lac river, near the business office of the plaintiff. It is charged that the sewer at the point of discharge into the river emits offensive odors and gases, and is a nuisance to plaintiff and his property.

<p>APPEAL from the Circuit Court for Fond du Lao County.</p> <p>The facts are stated in the opinion.</p> <p>cited Sexton v. Mann, 15 Wis. 162; Foster’s Case, 2 Story, 131; In re Bellows and Bede, 3 id. 428; Fisher v. Tose, 3 Rob. (La.), 457; Oliver v. Smith, 5 Mass. 183; Farmers’ Bank v. Beaston, 7 Gill & J. 421; Oolby v. Ooates, 6 Cush. 558; Dewing v. . Went/worth, 11 id. 499; Davenport v. Tilton, 10 Met. 320; Sharpless v. Welsh, 4 Dali. 279; 3 Parsons, Cont. 431; In re St. Helen’s Mills Go. 10 N. B. R. 418; In re Wayne, 4 id. 23; Allen v. Massey, 17 Wall. 351; Carr v. Hilton, 1 Curtis, 230; Linder v. Lewis, 19 N. B. R. 455; Adams v. Hyams, 19 Blatchf. 487.</p> <p>They cited 7 Lawson, Rights & R. sec. 3564, and cases cited; Drake, Attach, secs. 22L-5, 425; Mowry v. White,' 21 Wis. 417; Fates v. Dodge, 123 Ill. 50; Crosby v. Hillyer, 24 Wend. 280; Berthelon v. Betts, 4 Hill, 577; Bailey v. Burton, 8 Wend. 339.</p>

Adolph St. Sure Lindsfelt was married to Elise Concor-dia Yon Krassow,, May 27, 1835, at Rostoop, Sweden. As the fruit of such marriage they had eight children — four boys and four girls. One of them, the witness George, was born in Sweden in 1839. Adolph and wife came to America and settled at Syracuse, N. Y., in 1842. The plaintiff, William 0. St. Sure, was born at that place.

The opinion states the facts. The defendant appeals from a judgment in favor of the plaintiff. cited, besides cases cited in the opinion, Holland v. Belgium, 66 Wis. 557, 560. They cited Mappes v. Iowa Co. 47 Wis. 31; Saukville v. Grafton, 68 id. 192; McCaffrey v. Shields, 54 id. 645; 2 Abbott, Law Diet. 257, Paupee ; Wal-bridge v. Walbridge, 46 Yt. 617; Poplin <0.

Beplevin to recover 3,979 pounds of cheese. Plaintiff was a cheese manufacturer at Greenbush, Sheboygan county, and claimed that the defendant Mather, pretending to be the agent of William E. Smith & Co., a solvent firm of New York, agreed to purchase the cheese in suit of plaintiff, and that the plaintiff, relying on such representations as to Mather's agency, and knowing the firm of William E. Smith & Co. to be solvent, delivered the said cheese to Mather at Sheboygan;…

APPEALS from the Circuit Court for Fond, dw Lao County. In 1884, Charity S. Allen executed her last will and testament in due form, the material portions of which are as follows : “ I bequeath to my husband, Edward Allen, my entire estate, both real and personal, of every name and nature. . . .

By ch. 57, Laws of 1874, the city of Columbus, consisting of territory taken from the town of Columbus, was organized, with the usual powers of such municipal corporations. Included within such territory is a town cemetery, which the town of Columbus had theretofore acquired, partly by dedication and partly by purchase. It contained about ten acres of land, the legal title to which was in the town.

October 5,1889, the plaintiff commenced an action against Merlin H. Church to recover sundry sums due August 15 and 16, 1888, to sundry persons, including the plaintiff, for milk, butter, and cheese sold and delivered to him at agreed prices, and $100 money loaned, and all of which had been assigned to the plaintiff except his own, and the same belonged to him, and in the aggregate amounted to $1,373.59, and interest from August 15, 1888.

The plaintiff, Sizer, is the owner of a tract of land on section 2, containing about seventeen acres, and also of forty acres of land on section 1, about ninety rods east of the former tract.

The facts are stated in the opinion. As to the presumption of payment raised by the lapse of more than twenty years, they cited 2 Perry, Trusts, 121, sec. 556; Sanderson v. Olmsted, 2 Pin. 224; Arden v. Arden, 1 Johns. Oh. 313; Bean v. Tonnele, 94 N. Y. 381; Loder v. Hatfield, 71 id. 92; Am. Bible Soe. v. Ileba/rd, 51 Barb. 552; Smith v. Remington, 42 id. 75; Ciarle v. Ford, 34 How. Pr. 418; Maoauley v. Palmer, 6 N. Y. Supp. 402; Lyon v. Adde, 63 Barb. 89.

This action was commenced about June 15, 1890, to recover damages alleged to. have been sustained by the plaintiff by reason of a defective sidewalk in the unincorporated village of Milton in the defendant town, while traveling thereon on the evening of April 27, 1889. The complaint is in the usual form in such cases, and alleges the usual notice and the presentation and filing of claim.

The action, is brought to recover damages for the alleged wrongful ejection of plaintiff from defendant’s passenger train at' a flag station on its road called “ Badger Mills,” about half way between Eau Claire and Chippewa Falls,. November 14, 1885. The plaintiff could not speak or read English. She boarded defendant’s train at Eau Claire.

This is aü action brought under the provisions of secs, 3149-3Í53, R. S., for the partition of the water-power created by the dam in Rock river at Janesville, among the several owners, all of whom are made parties to this action. The complaint was sustained upon demurrer by this court in 55 Wis. 197. Since that decision the action has been tried upon the merits, and is now here upon appeal from final judgment.

APPEALS from the Circuit Court for Fond du Lac County. This action was originally brought against Marian L. Bensley to perpetually enjoin her from drawing down the head of water in a certain canal described in the complaint below eleven feet, and to have plaintiff’s right to draw 2,000 inches of water under an eleven-foot head from such canal adjudged superior to the right of defendant to draw any water therefrom.- Marian L. Bensley having died before judgment, the action…

Croix County. The complaint alleges in effect that March 29, 1889, the plaintiff, at Barron, Wis., at the special instance and request of the defendants, under the firm name of D. C. Davis & Sons, sold, and in the month of April, 1889, delivered, to them 111,198 feet of birch lumber at the agreed price of $7 per thousand feet, amounting to $778.28; that no part thereof has been paid, except the sum of $593.12, and that there is now due and owing the plaintiff on account…

Oroix County. This action was brought to recover against the defendants, Ohilds and Denniston, losses sustained, as it is alleged, by the plaintiff to the amount of $28,000 by reason of gross neglect, mismanagement, and inattention to their duties while they were respectively president and treasurer of the plaintiff, and as such ex offioio members of its board of directors.

APPEALS from the Circuit Court for’ Winnebago County. The Oshkosh Mutual Eire Insurance Company was organized in 1886, under ch. 89, secs. 1896-1901, R. S., as a mutual insurance company.

APPEALS from the Circuit Court for Winnebago County. This proceeding grows out of the insolvency of the Oshkosh Mutual Eire Insurance Company, and an action in the circuit court to wind up its affairs, in which action the defendant, Davis, was appointed receiver of the insolvent company.

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>cited the cases cited by the court in Dewey v. Davis, cmte, p. 500; also Doane v. Millville Ins. Go. 45 N. L Eq. 274; Taylor v. North Star M.. Ins. Go. 46 Minn. 198; White v. Havens, 20 ITow. Pr. 177, 181; State v. Monitor F. Asso. 42 Ohio St. 555.</p>

On the evening of December 5,1888, the plaintiff had his leg broken in one of the public streets of the city of Chippewa Falls, and he claims that a defective sidewalk caused the injury. He served on the proper city officials, in due time, the notice required by sec. 1339, R. S., and presented to the common council of the city his claim for damages for such injury.

This is a suit in equity for an accounting brought against Edward P. Allis in his lifetime, and revived against his executors. The facts are sufficiently stated in the opinion. The plaintiffs appeal from a judgment dismissing the complaint. They cited 1 Story, Eq. Jur. (11th ed.), secs. 67, Ml, 412a, 453,458; 3 Bl. Comm. 163, 437; 3 Pom. Eq.

APPEALS from the Circuit Court for Brown County. This action was commenced to cancel, set aside, and restrain the collection of certain taxes on about 221 tracts or more of land of the plaintiffs in the town of Eagle Eiver in Oneida county, for the year 1889, upon various-grounds set forth in the complaint, which were put in issue by the answer of the defendants.

The appellant, on the 22d day of December, 1890, instituted condemnation proceedings, claiming that defendant had taken a part of his land for its road-bed. Appellant owned lot 22, in block 25, city of Fond du Lac, fronting to the north on Arndt street, and bounded on the south by a twelve-foot alley. Lot 21 adjoins it on the: west. A barn stood near the back end of petitioner’s lot not more than six inches from the west line of said lot.

' APPEAL from the Circuit Court for Douglas County. In 1863 the defendant Titus G. Fish and one Bull, under the firm name of Fish & Bull, commenced the business of manufacturing wagons in the city of Racine. As such firm, they employed one Edwin B. Fish, a brother of Titus G. About 1864 Bull went out of the firm, and Abner 0.

Plaintiff was head brakeman upon a freight train, in the employ of defendant, on and prior to January 16, 1891, on which day, about 1 o’clock a. M., he was attempting to make a coupling between two freight cars in the yards of defendant at Janesville, and had his hand crushed between the draught irons of the cars.

Crowing out of a gambling and drinking debauch in a saloon at Antigo, in Langlade county, on October 23, 1889, a quarrel arose between the plaintiff in error, Lowell A. Winn, and one Defoy, one of the proprietors of the saloon, and it seems that Defoy assaulted Winn. The latter thereupon left the saloon, and went to his home, obtained a loaded revolver, and returned with the avowed intention of killing Defoy. They met on the sidewalk in front of the saloon.

An information was filed in the circuit court of Richland county, charging thó plaintiff in error with having on the 8th day of January, A. D. 1891, at said county, feloniously, wilfully, and with malice aforethought killed and murdered one Ella Maly, against the peace, etc. After pleading not guilty to the information, a change of venue was awarded to the circuit court for Grant county, where the case was tried and a verdict was rendered finding the plaintiff in er.ror…

<p>Criminal law: Indeterminate sentence: Habeas corpus.</p> <p>1. If the statute (sec. 4738, B. S., as amended by ch. 390, Laws of 1889) authorizing general or indeterminate sentences is invalid, a sentence under it is not void but merely erroneous, and the remedy is not by habeas corpus, but by writ of error.</p> <p>2. The sentence in such a case cannot be held valid as to the minimum term and void as to the residue.</p>

This action was brought by the plaintifE to recover for personal injuries alleged to have been sustained by him while a passenger on a stock train of the Chicago, Milwaukee & St. Paul Eailway, from Milton in Wisconsin to the stock yards in Chicago, and in consequence of a collision with a freight train of the defendant company, alleged to have been caused by and through its negligence.

The case is stated in the opinion. They contended, among other things, that where the defect existed at the time of making the lease, the lessor is liable for the unsafe condition of the premises, notwithstanding a clause in the lease that the lessee shall keep the same in repair.

<p> Justices' courts: Removal of case: Prejudice: Sufficiency of affidavit: Jurisdiction. </p> <p>An affidavit for the removal of a case from one justice of the peace to another (under sec. 3616, B. S.), stating that “from prejudice or other cause ” the affiant believes that the justice before whom the action is brought will not decide impartially, is insufficient, and the justice to whom the case is sent obtains no jurisdiction of the subject matter even by the consent of the parties.</p>

The action was brought to obtain an adjudication as to what share and proportion of the power furnished by Fox river and of the flow of water therein at a certain point in the city of Appleton, belongs to the plaintiff Edward West or his grantees, on account of the ownership of the south bank of the main channel of the river and the ownership of both banks of the south channel thereof; and to restrain the defendant Fox River Pa/per Company and its grantees from using more…

<p>APPEAL from the Circuit Court for Waupaca, County.</p> <p>The action is to set aside an execution- sale of land for the alleged reason that it is the homestead of the plaintiffs, and to quiet the title thereto.</p> <p>In 1890, the plaintiff Hermcm Hoppe was, and for several years previously had been, the owner of the W. -J of the S. E. £ of section 36, in township 21 N., of range 13 E.; in Shawano county, and of thirty acres adjoining thereto in the S. E. £ of the S. E. of the same section; and during all the time of such ownership he lived on the land with his family, and used it as a farm. His dwelling-house was on the S. W. ¿ of the S. E. J of the section, which lot • was his homestead.</p> <p>On October 29,1890, Hoppe exchanged his farm with one Gensler for a lot containing less than one quarter of an acre, in the village, now city, of Clintonville, in Waupaca county, on which was a two-story frame building, then and now occupied as a store and office, but not as a residence. The upper story contained eight rooms, was adapted to use as a residence, and in fact had been so used for two winters. By the terms of the exchange, Gensler assumed the payment of a mortgage for $200 on the 'whole farm, and afterwards paid the mortgage debt. By direction of Gens-ler, the plaintiffs conveyed the farm to one Steinke, who was-a relative of Gensler, and the latter.conveyed the Clin-tonville lot to the plaintiff Mrs. Hoppe, by direction of her husband. The lot was so conveyed, subject to an outstanding lease thereon for five years from October 1, 1888, executed by Gensler to Wall • & Anthes, who then were and still are in the actual possession of the -lot under the lease. Gensler or Steinke went into possession of the farm, and Hoppe and family moved into Clintonville.</p> <p>. In-December, 1890, the defendant Benjamin Goldberg obtained a judgment iii the circuit court of Shawano county against the plaintiffs for over $900, filed a transcript thereof in the circuit court of Waupaca county; -and issued-an execution thereon to the sheriff of the latter county, who., in-February, 1891, sold the- Clintonville lot, by virtue of such execution, to the defendant Jennie Goldberg, and issued to her the usual certificate of .sale, , which was duly filed-in the proper register’s office.</p> <p>This-action was brought -against the GolJbergs and the sheriff to vacate and set aside such certificate of sale, -to enjoin the issuing of a- deed thereon, and to establish and confirm Mrs.-Hoppe's title to the lot in question, divested of any lien or incumbrance thereon by virtue of such .judgment or execution sale.</p> <p>The plaintiffs made the exchange of property, and procured the conveyance of the-lot in question for their homestead-,-and with the intention of occupying the same and' the -building thereon as their, residence upon the termination of the outstanding lease thereof.</p> <p>The- foregoing facts were either found, by- the circuit court, or satisfactorily proved on the trial, except -that the court found the building was. never/used . as a residence. This finding is regarded ás immaterial. ■ The court further found that plaintiffs took the conveyance, of the .lot--with-knowledge of the .outstanding lease thereon; that the same would- be occupied by the. lessees until the expiration of their term; and. that .the plaintiffs never.-made any effort to procure a cancellation of the lease, never attempted to occupy the lot as a homestead, and never claimed the same as a homestead until after this action was commenced.</p> <p>On the foregoing facts the court gave judgment for defendants, dismissing the complaint on the merits. The plaintiffs appeal from the judgment.</p> <p>They cited Howard v. Harris, 8 Allen, 299; Comm. v. Clark, 14 Gray, 372; Comstock v. Bechtel, 63 Wis. 656-662; Bailey v.'Steve, 70 id. 316; Watkins v. Blatschinski, 40 id. 347; Hewitt v. Allen, 54 id. 583; Binsel v. Grogan, 67 id. 147; Scofield u. Hopkins, 61 id. 370; Palmer v. Hawes, 80 id. 474; 'Znrhmer v. Pauley, 51 id. 282; Phillips v. Boot, 68 id. 128; MoDer-. molt v. Hernán, 72 id. 268; Heville v. Widoe, 64 Mich. 593; Beske v. Beske, 51 id. 541; Hanlon v. Pollard, 17 Neb. 368.</p> <p>They cited Zielkev. Morgan, 50 Wis. 560; Wicker v. Gomstoek, 52 id. 315; Moffitt v. Adams, 60 Iowa, 44; Sco-field v. Hopkins, 61 Wis. 370; Gasselman v. Packard, 16 id. 115; Upma/n v. Second Wa/rd Bank, 15 id. 449; Sohnffen v. Landauer, 60 id. 334; Hoffman v. Junk, 51 id. 613; Green v. Pierce, 60 id. 372.</p>

<p> Fraudulent conveyances: Chattel mortgage: Attachment: Replevin: Pleading: Findings. </p> <p>1. In replevin against a sheriff for goods taken by him under an attachment against the property of a third person in whose possession they were, and from whom the plaintiff claims to derive his right by mortgage, an allegation in the answer that “such mortgage was fraudulent and void as to the creditors of ” the mortgagor, without stating more fully the facts of fraud, is sufficient, under sec. 2319, R. S., to cast upon plaintiff the burden of proving that the mortgage was not fraudulent</p> <p>2. And a finding in similar language by the court (a jury trial having been waived) is a sufficient finding of the fraud.</p>