Volume 83 — Wisconsin Reports

The defendant Jewries W. Warner is the owner of the S. E. ¿, section 22, township 21, range 12 east, and herein designated as “ A.” The only public highway touching said lands runs in a northeasterly and southwesterly direction across the northwest corner thereof.

In 1887 the venue of a criminal action pending in Portage county was changed to Waushara county.

Waupaca County. This action was brought for the recovery of one Washington hand printing press, together with a quantity of type, printing materials, etc., and subscription list, belonging to the “ New London Times ” printing office, a paper that had been regularly published in the city of New London for upwards of 'ten years; owned by one Cleary, who, on the 3d of September, 1890, as the complaint alleged, in consideration of the payment of taxes and the insurance of said…

The action is upon a policy of insurance issued by the defendant company to plaintiffs upon certain property which was destroyed by fire during the term of the policy. The only question litigated is, Had the policy become forfeited, or the obligations of the company under it suspended, when the loss occurred, by reason of the failure of plaintiffs to pay an assessment when it became due on the premium note of the plaintiffs given for the policy?

The case is stated in the opinion. They contended, inter alia, that the appellant was not liable, for the reason that the injury was immediately caused by the independent, wilful, and tortious act of a third person, intervening between the alleged negligence of appellant and the damage, which could not reasonably have been anticipated. Grain v. Petrie, 6 Hill, 522; Mayne, Damages, 40; Viea/rs v. Wileoks, 8 East, 1; Lowery v. W. U. Tel.

Croix County. Anthony Suitor died at his residence in Oskaloosa, Iowa, intestate, February 3, 1878, seised of 160 acres of land in the town of Rush River, St. Croix county, described as the S. E. £• of section 24. He left him surviving a widow, Mag-deline, and four children, to wit, Martha, born February 16, 1865; Ellen, born December 4, 1866; Louis, born February 20, 1869; and Isabella, born June 14, 1872.

The- appellant, in his capacity as administrator of the estate of Lucretia Austin, deceased, brought this suit against the respondent, alleging that prior to and at the time of her death there was deposited in the defendant bank, of the ¡moneys of the said Lucretia Austin, and to her credit, the sum of $4,504.70, which sum it was alleged was due and. owing to her, the said Lucretia Austin, from the defendant bank, at the time of her death, but the defendant still has has…

The facts are sufficiently stated in the opinion. They contended, inter alia, that the principle which renders an attachment void unless issued within a reasonable time after making the affidavit, applies with equal force to a voluntary assignment. Drew v. De-quindre, 2 Doug. (Mich.), 93; Buckley v. Lowry, 2 Mich. 418; Wilson v> Arnold, 5 id. 98; Foster v. lllinski, 3 Bradw.

This action was brought by the plaintiff’s intestate, in his lifetime, to recover damages for an alleged malicious'assault and battery committed upon him by the defendant. The defendant, in his answer, denies' the malice charged, and sets out at considerable length certain alleged malicious acts of. the plaintiff’s intestate towards him, which it. is claimed were deliberately planned to exasperate the defendant to commit the assault complained of.

Plaintiffs were running lumber in rafts down the Wisconsin river in the spring of 1890, and claim by their complaint that their rafts were broken and lumber delayed and lost by reason of the illegal height and improper construction of the dam in said river at Kilbourn City, which dam they claim was constructed and maintained by defendants. The defendant Bowman, denied everything except the navigability of the Wisconsin river.

The complaint in this action is, in substance, that the plaintiff was, and had been for several years past, in the possession of the Champion Pulp Mill, and the water-power used to operate the mill, and the .tailrace appurtenant thereto, over which the water used to drive the mill passes in its escape from the wheels, and had expended considerable money in equipping the mill with necessary machinery and implements for the manufacture of pulp from wood; that the lessening of…

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>The appellant Hinckley commenced an action against the Milwaukee Electric Railway Company,' Richard JBwrke, August II. Vogel, Charles F. Pfister, John A. Ilinsey, EE. II. Eield, Oscar D. Aeppli, G. "W. Hinckley, and A. M. Hinckley stating, in substance, the incorporation of the MilwauJeee Eleotrie Railway Company, December 17, 1889, for the purpose of operating a street railway in Milwaukee and adjoining towns, using electric or other motive- power, and empowered to acquire the property and franchises of the Milwaukee Cable Eailway Company; that the first-named company organized March 10, 1890, with a capital stock of $500,000, being 5,000 shares of $100 each; that the latter company transferred to the electric railway company all its property, rights, and franchises, and the entire capital stock of the electric railway company was issued to the plaintiff HmcJeley and the defendants Ilinsey, Aeppli, Field, and G. W. and A. M. Hinckley; that none of them paid anything of value for such stock except the plaintiff, but what he paid for his stock is not stated; that the only person having any actual interest in the electric railway company defendant, or in the cable railway company, is the plaintiff, but precisely what interest he had is not stated; that the plaintiff and defendant Ilinsey were the promoters of the corporation defendant, and the other defendants named, to whom stock was issued, were brought in and given certificates of stock merely for the purpose of completing and forming a corporate organization, except the defendant Mcunsehott, who claimed some stock under the defendant Hinsey; that the stock of the electric company was, at the date aforesaid, issued to the plaintiff and Ilinsey and such persons as they selected, in the proportion of three fifths to plaintiff or his order, and two fifths to Ilinsey or his order, but the same was issued to said Ilinsey gratuitously, without any good or valuable consideration, and contrary to law; and for a part of the stock of said plaintiff in the electric railway company he paid no money or value, but what part thereof is not stated; that for the greater portion the plaintiff did pay moneys, property, and services, but what amount is not alleged.</p> <p>On the same day a mortgage or deed of trust was executed by the plaintiff as president, and the defendant Aep-pli as secretary, of the electric railway company, in its name, to the defendant the Northern Trust Company, as trustee, the same being an Illinois corporation, to secure an issue of a series of 500 coupon bonds of the sum of $1,000 each, to mature April 1, 1910, bearing interest at the rate of six per cent, per annum, payable semi-annually. This was the first mortgage on the property of the company, and was recorded. It contained a provision that the bonds therein described should not be valid until certified by the trustee, who, it is alleged, accepted his trust and certified and delivered to the electric railway company 250 of said bonds of $1,000 each, and that it issued said bonds to the defendant Pfister as collateral security of a loan of $125,000 made by him to said company on its note, and for no other purpose, which contained a power of sale authorizing Pfister, in case of default in the payment of the note, to sell the bonds at private sale; that the electric railway company had no means sufficient for the payment of its debts, and Pfister was thereby enabled to take advantage of it, and sell $100,000 of said bonds to the defendant Vogel for $50,000, retaining $150,000 of said bonds and the note of the electric railway company for $125,000, on which he claims there is still due to him the sum of $70,000’; that at the time Pfister made said loan the plaintiff and defendant Hinsey pledged to him to secure its payment certain stock of the company, namely, Smsey pledging 1,001 shares, and the plaintiff 1,501 shares; that Pfister knew that the plaintiff was a mere surety, through his stock, on the note, and it was expressly agreed in a separate writing “ that no sale of plaintiff’s pledged stock should take place until after the property of the electric railway company, namely, its said bonds, were exhausted on said power of sale.”</p> <p>It is alleged that “ all money expended in creating or constructing or purchasing said street railway company, and all the corporate assets of tbe said street railway company, and also all of the assets of the Milwaukee Cable Railway Company, aforesaid, except such as was acquired from the proceeds of the said $125,000 loan, and such as said defendant street railway company is still indebted for, have been furnished by the plaintiff,” and no other of the stockholders of said company paid or furnished any portion thereof; and that said plaintiff furnished said money and paid the same, under an agreement with said street railway company that he should be cmd remain a creditor of the defendant street railway company to the amount of the money and property so advanced by him, and that the same should be repaid to him from the proceeds of the sale of said corporate bonds, or that, in lieu thereof, he should have such bonds for the same at not less than seventy-five cents on the dollar; and that by virtue of such advances and said agreement the plaintiff is a creditor of said corporation to an amount exceeding $100,000, for money actually advanced, materials and supplies furnished, and labor performed, for said corporation, for which, by said agreement, he was to le paid as aforesaid. That certain officers of the defendant company, without plaintiff’s consent, after the pledge of said $250,000 of bonds to Pfister, ordered the trustee in the mortgage to issue and certify no more bonds, so that the plaintiff is unable to procure any bonds in payment of his advances, and the defendant is unable to pay its existing debts. That plaintiff is a director and the president of the company, and 'the defendants G-. W. Hinckley, A. M. Hinckley, H. H. Field, Oscar H. Aep-pli, John II. Manschott, John A. Ilinsey, Charles F. Pfister, Riohard Burke, and August H. Yogel have-or hold in their name stock of said defendant company, sold by said Pfister to Vogel under said power of sale for the sum of $5,000, but in disregard of Pfistefs agreement not'to sell the same until the bonds of defendant so issued- were all sold. That the sale of said stock and bonds to Vogel was formal or colorable, and no consideration was paid therefor, but they were bid in by him as trustee for Pfister, in pursuance of an arrangement or combination between the defendants Pfister, Vogel, Bicrlee, and Hinsey, which is charged to have been collusive and entered into for the purpose of creating fictitious liens against the corporation by virtue of the bonds and obtaining control of its stock, so as to control corporate action with reference to said bonds, and to enable Pfister to occupy the position of creditor for a large amount under the said bonds, and at the same time control corporate action with reference thereto. That, after bidding in the stock, Vogel transferred “ part of the same” back to Pfis-ter, and “ part to the defendant Burltefi and that Pfister and Burlee claimed the right to vote such corporate stock at the corporate meetings, and the plaintiff also claims the right to vote the same stock, and to be the owner thereof, and to be the owner of his proportion of that held by the defendant Vogel; and that Pfister, Vogel, Hinsey, and Bv/rlee threaten and intend to vote out the plaintiff from all trusteeship or office in the corporation, the defendant Pfister being enabled to control a majority of the stock of the corporation, and at the same time to hold against it the bonds so alleged to be illegally acquired, and the note, on which he claims there is still due $70,000. There is no allegation to show what part of the stock is so held in the name of Pfis-ter or Bnrlce or Vogel, nor whether, when the same was pledged, any transfer or evidence of the pledgee’s right was entered on the stock register, nor whether the transfer to the said several defendants of the stock claimed to be held. by them respectively has been entered thereon. '</p> <p>It is alleged that the defendants Field, Aeppli, and Hin-sey are a majority of the present board of directors, and the interest of Field is merely nominal, and Aeppli is the clerk or secretary of IHnsey, and all said persons are controlled by the defendant JImsey. That Vogel, Burlte, and Pfister are not purchasers of said stock for value, but took the same with knowledge and notice of the defects in such stock and in the title thereto and right of Pfister to sell it; and that he took the bonds purchased by him with full knowledge of their invalidity and illegality. That the property of the electric railway company has been sold for taxes of two years last past, and tax certificates thereon have been issued to the defendant Pfister, and a large number of suits at law have been commenced and are pending against the company, and judgments are liable to be rendered against it. That the property of the defendant is liable to attachment by its creditors, and Pfister is interested in rival and competing lines of street railway in Milwaukee. That Pfister, Burlte, Vogel, and JImsey claim the right to vote on the stock so acquired by them at the corporate meetings, and to gain control of the corporation, and are combining to carry out such intention by virtue of their holdmg such certificates, for which no money has been paid “ except such certificates as are in their hands and belong to the plaintiff, and not to Vogel and Burlte.” That it is important that the street railway should be kept in operation, and no attachment be levied thereon, and no forfeiture of its franchises be incurred. That its gross income is not over $10,000 per month. That the semi-annual interest for October, 1890, upon said bonds, is past due, and, by the terms of the mortgage, default in its payment makes the whole principal sum of the bonds due, at the option of the owner. That the Iona fide debts of the railway company defendant, including the claim of the plaintiff, exceed $250,000, and that it is without means or property to pay the same.</p> <p>The plaintiff asks judgment (1) that the amount due to him from the street railway corporation defendant be ascertained and adjudged, and he be declared to have a lien on its corporate property therefor; (2) that an account be taken of all the property, credits, effects, and indebtedness of the corporation; (3) that a receiver be appointed of.such property, and that it be sold under the direction of the court to pay plaintiff and other creditors, and after the payment of such debts the residue be brought into court to be disposed of according to law; (4) that the $250,000 of bonds in the hands of Vogel and Pfister be canceled and set aside; (5) that an account be taken of all the stock of the plaintiff that was issued without consideration, and void under the statute for that cause, and that all stock so issued be set aside and canceled, and that the ownership of the valid portion of the stock of the defendant the electric railway company be determined and declared, so as to determine the rights of the parties in the surplus, if any, arising from the sale of its property; that its bona fide indebtedness be declared a lien on the corporate property at its true amount; that the defendant Pfister be charged with the amount of any stock or bonds which he may have unlawfully disposed of by reason of the same having passed into the hands of other persons, and that he be allowed no more than the actual indebtedness due him, namely, $125,000 and interest, as agreed; and, after payment of the just debts, costs, etc., the proceeds of such sale be divided among its bona fide stockholders in proportion to their respective interests. An injunction against Rinsey, Burlce, Pfister, and Vogel was prayed for, and general relief.</p> <p>Subsequently the Milwaulcee Electric Railway OompaAiy brought its action against Pfister, Vogel^ Burlce, Rinsey, Manschott, Field, Aeppli, the Northern Trust Company, G. "W. Hinckley, A. M. Hinckley, and Francis E. Rinclcley, the plaintiff in this action. Its allegations are, in the main, substantially the same as in Rvnclcley’s suit against Pfister and others. It charges that the plaintiff company was organized, among other things, with reference to acquiring the franchises and property of the Milwaukee Cable Railway Company, and that prior thereto it had been agreed between the persons composing the latter company that the plaintiff should be organized, and for that purpose. It alleges the transfer to it of the property, rights, and franchises “for a consideration, as stated,.to the plaintiff.” That its whole capital stock was issued to the defendants Hmckley, Hinsey, Aeppli, and Field, none of said persons paying anything of value for said stock, except the defendant Hinckley; but there is no allegation of what amount he paid for his stock. It is charged that in the cable railway company and in the plaintiff company the only persons, having any actual interest therein were the defendants F. E. Hmckley and Hinsey, and that “some agreement” existed between them and the plaintiff and the defendants Aeppli and Field, by which the defendant F. F. Hinckley was to advance money to the plaintiff as its creditor for corporate purposes, but what the terms of that agreement were is not stated. It is four times asserted in this complaint that Hinsey paid no money, property, or anything of value whatever for the stock of the plaintiff company;, and there is no allegation to show what interest he really had, if any, in either of said companies. The complaint further states the issue of the stock of' the company, the execution of the trust deed or mortgage, the certification of $280,000 of the bonds secured by it, the delivery thereof to the defendant Pfister as collateral security for the payment of the note of the plaintiff for $125,000, and the power of sale contained in the note, as in Hinckley’s complaint ; and alleges that the said disposition of the bonds and power of sale were unauthorized and illegal, to the knowledge of Pfister; the deposit, as security, with Pfister,. by the defendants Hinckley and Hinsey, of 2,502 shares of the capital stock, — 1,001 issued to the defendant Hinsey,, and 1,501 issued to the defendant Hinckley/ and that no other bonds were ever delivered, certified, or issued. It charges that Pfister, Vogel, JEEinsey, and Burke colluded together for- the purpose of creating fictitious liens-against the corporation by virtue of said bonds, and obtaining control of its stock at the same time, so as to control corporate action with reference thereto, and occupying the position of creditor for a large amount under the said bonds so unlawfully issued. It alleges the sale of 100 of said bonds by Pfister to the defendant Yogel for $50,000, and the retention of 150 thereof, and also of the note of the plaintiff for $125,000, substantially as in the other complaint; and that, after the sale, Pfister sold at private sale the 2,502 shares of the capital stock so obtained as security under the power of sale, or pretended to, sell the same, to Yogel for $5,000. That the power of sale did not include the right to sell said 'stock until after the whole of said bonds had been sold by him, and that not only was such power of sale unauthorized, but it was not complied with in the sale of the stock. That said sale of bonds and stock to Yogel was colorable, and no consideration wras paid therefor by Vogel, but they were bid in by him as trustee for Pfister, in pursuance of ,said agreement or combination between Pfister, Vogel, Burke, and Ilinsey. That thereafter Vogel transferred part of said stock to Burke, and he claims the right to vote thereon at the coi’-porate meetings of the plaintiff, and the defendant Ilinek-ley also claims the right to vote the same stock, and to be the owner thereof. That he lays claim to be the owner of the stock held by the defendant Vogel, and Vogel claims to be the owner thereof, and that the plaintiff is unable to determine who is the ovmer, or entitled to vote thereon, or liable thereon; but does not show what part of said stock has been registered, if any. That the plaintiff has no other interest in the question of the ownership of said shares, but is impartial therein. That when the stock was issued there was some agreement, but what it was is not stated, by and between Ilincldey and Hinsey, that Hineldey should be a creditor of the plaintiff, and be repaid by it for certain moneys advanced by him for corporate purposes, and that the stock of the plaintiff should be issued to Hinsey gratuitously, and to F. E. Hmeldey in part gratuitously and in part for value, in certain proportions, but what proportions is not stated; and that they had it in mind and intended thereby to provide for a sale of the street railway, and that it was agreed in such case that Hineldey should be first repaid his cash advances and other payments made by him out of the proceeds of sale, and the other corporate debts to be paid out of the proceeds of such sale, and the residue to be divided between Hmeldey and Hinsey “ in a certain proportion agreed upon,” but what proportion is not stated; and that the stock was issued accordingly. That Hineldey has an action pending in this court against the plaintiff company, in which he claims to be its creditor for upwards of $100,000, and asks to have a lien declared in his favor on its1 property, and the same foreclosed, and a receiver appointed.</p> <p>The complaint contains substantially the same allegations as Ilincldefs in respect to pending suits against the plaintiff, and the liability of its property to be seized on execution or attachment, to its serious damage, and those for whom it is trustee; and also as to the necessity that its railway should be kept in operation and no forfeiture of its franchises be incurred. That Pfister is interested in competing and rival lines, for the building of which he has procured an ordinance, and is in collusion with Vogel, Burlte, and Hinsey to gain control of the property and franchises of the plaintiff, and so impair its value, or to create fictitious or unlawful claims against it; and that Hinsey now controls a majority of the board of directors. The plaintiff asks judgment that said $250,000 of bonds be canceled and set aside; that an account be taken of the stock of plaintiff issued without consideration, and void under the statute for that reason; that all such stock be canceled and set aside; that the valid portions of plaintiff’s stock be determined and declared, and for that purpose that the defendants Hinckley, Burke, and Vogel be required to interplead, and that the amount due from the plaintiff to IiineTdey and any other of its creditors be ascertained and be declared a lien on its corporate property; that, if necessary, the prop: erty of the plaintiff be sold, and the proceeds applied to the payment of its debts and costs and expenses of the action, and the residue divided among the bona fide stockholders; and for an injunction, etc.</p> <p>On application of the plaintiffs, these actions were consolidated by order of the court, and directed “ to proceed to trial under and upon the pleadings then filed and served, or such other pleadings as the parties opposing the consolidation might choose to make or serve pursuant to law; ” and prescribing that the title of said action should be the same as specified in the order. When the consolidated action came on for trial, the defendants Pfister, Vogel, Burke, and Hinsey objected to the reception of any evidence under either complaint, on the ground that neither of them stated facts sufficient to constitute a cause of action. The court sustained the objection, and dismissed the complaints, with costs, from which the plaintiffs Hi/nckley and the electric railway company appealed.</p> <p>They contended, inter alia, that the complaint of the corporation, either alone or consolidated with Hinckley's, states a good cause of action. It shows an unlawful issue of bonds for less than seventy-five cents on the dollar, in contravention of the statute. N. S. sec. 175j3; Wood v. Union Oospel Asso. 63 Wis. 9; New Castle N. B. Co. v. Simpson, 21 Fed. Rep. 533; Chicago v. Cameron, 120 Ill. 417. It shows an attempt by the pledgee of its bonds, Pfister, through the medium of a col-orable and fictitious sale to Vogel, to create a debt of $100,000 against the corporation, for which the corporation received only a consideration of $50,000 by a credit of the last named sum on Pfister's note. Jesvp v. City BamLc, 14 Wis. 359; Aelcerson v. Lodi B. P. Co. 28 N. J. Eq. 542; Bichcurdson v. Oreen, 133 U. S. 30. It shows the issue of a large part of the stock of the corporation gratuitously, contrary to statute, by means of which the corporation is no longer able to raise money by the usual mode and the corporate affairs are managed by directors who owe their election to such void stock and have no pecuniary interest or responsibility in such affairs. Wood v. Union Gospel Asso. 63 Wis. 9; New Castle N. B. Co„ v. Simpson, 21 Fed. Rep. 533; Fosdich v. Sparges, 1 Biss. 258; Perry v. Tuskaloosa C. S. O. M. Co. 93 Ala. 364; Cla/rke v. Lincoln L. Co. 59 Wis. 655. The stock bid in by Vogel and redistributed to Pfist&r and Burlce is also claimed by ILinckley, who contends that the colorable or fictitious sale did not divest his title; and the corporation is entitled to know who its true stockholders are., Salisbury Mills v. Townsend, 109 Mass. 115; Providence Banhv. Wilkinson, 4 R. I. 507; Cady v. Potter, 55 Barb. 463; Cheever v. .LLodgson, 9 Mo. App. 565. A bill in the nature of an interpleader may be maintained where other equitable relief is sought in addition to the interpleader. Bedell v. LLoffmam, 2 Paige, 199; Mohawk c& IL. B. Co. v. Cl/ate, 4 id. 391, 392. Courts will interfere to restrain any acts' on the part of directors or officers constituting a breach of trust. Podge v. Wool-sey, 18 How. 341; Pearson v. Concord B. Co. 62 N. H. 537; Bambmcm v. Empire Mills, 12 Barb. 341; People v. Ballard, 3 N. T. Supp. 845. Stock issued contrary to law without consideration should be canceled at the suit of the corporation. Scovill v. Thayer, 105 U. S. 143. No matter what relief is demanded, if the corporation is entitled to be heard in a court of equity upon éither of the foregoing-propositions, the demurrer was improperly sustained. Hiles v. Johnson, 67 Wis. 517; /Scheibe v. Kennedy, 64 id. 564.</p> <p>The complaint of the plaintiff Llmckley states facts which entitle him to maintain an action in equity, as a surety of whose pledge a wrongful and fraudulent sale has been made, to disregard such sale or have it set aside and have the property of the principal debtor sold and applied in payment of the debt and in discharge of the property of the surety. Karris v. Newell, 42 Wis. 691; Neimcewicz v. Gahn, 3 Paige, 648; Irick v. Black,, 17 N. J. Eq. 189; Philadelphia & P. P. Go. v. Little, 41 id. 519; Moore v. Topliff, 107 Ill. 241; Norton v. Peid, 11 S. C. 593; Bishop v. Bay, 13 Yt. 81; Morse v. La/rkin, 46 id. 371; Saylors v. Saylors, 3 ITeisk. 525; Keel v. Levy, 19 Oreg. 450; Smith v. Smith, 8 Ired. Eq. (N. C.), 34; Ilellams v. Abercrombie, 15 S. C. 110; Whit/ridge v. Durkee, 2 Md. Ch. 442; McDaniel v. Austin, 32 S. C. 601; Meader v. Meader, 88 Ky. 217; Morrison v. Poyntz, 7 Dana, 307; 1 Drandt, Suretyship (2d ed.), secs, 34, 223-225, 237-239; 1 Story, Eq. Jur. secs. 327, 730; 2 id. sec. 849; Nwyes v. Ward, 4 Johns. Ch. 123-132; Man'sh v. Pike, 1 Sandf. Ch. 210; Jones, Pledges, secs. 685, 686; 2 Jones, Mortgages, sec. 1380; Jenkins v. Gunnison, 50 Wis. 388; Beckham v. Dunca/n, 9 S. E. Eep. (Ya.), 1002; Ballew v. Poler, 124 Ind. 557; McOonnell v. Scott, 15 Ohio, 401; Pratt v. Thornton, 28 Me. 355.</p> <p>They argued, among other things, that the facts stated do not warrant the appointment of a receiver. Re Argus Printing Oo. 1 N. Dak. 431; Boyd v. Sims, 87 Tenn. 779; Cook, Stock (2d ed.), secs. 745, 746 ; 2 High, Inj. secs. 1203-1210; Eschweiler v. Stowell, 78 Wis. 316; Haywood v. Lincoln L. Oo. 64 id. 639-645; High, Deceivers, sec. 288, note; Beach, Deceivers, sec. 403; Balter v. L. P. R. Go. 34 La. Ann. 757; French v. Gifford, 30 Iowa, 148; JLeall v. Hill, 16 Cal. 146; French Bamlc Gase, 53 Cal. 495-551; La Grange v. State Treas. 24 Mich. 469-471; Talbot v. Scripps, 31 id. 268; Gluck & Becker, Deceivers, secs. 22-24; .Ward v. Salem St. R. Oo. 108 Mass. 332. The complaint of Himchley will not bear the aspect of a bill by a surety. Shields v. Barrow, 17 How. 130-143; Harris v. Hewell, 42 Wis. 687-691; Wright v. Simpson, 6 Yes. Jr. 714-734; Philadelphia <& R. R. Oo. v. Little, 41 N. J. Eq. 519-529; Moore v. Top-liff, 107 Ill. 241-250; Stamford Bank v. Benedict, 15 Conn. 437-446; 1 White & Tudor, L. Cas. 136; 3 Pom. Eq. Jur. sec. 1417, n. 2; Ga/ry v. Gannon, 3 Ired. Eq. 64-68.</p>

Plaintiffs are holders of the bonds of the defendant railway company, and they bring this action to enforce an equitable lien on the property of the defendant for the amount of such bonds, under and by virtue of a mortgage executed by the company on such property to a trustee to secure the payment of the bonds.

This action was commenced in this court for the purpose of perpetually enjoining and restraining the defendant, as secretary of state, and his successors in office, from pub-. lishing and continuing to publish a copy of the notices of election of members of the senate and assembly in a newspaper printed in Madison, once in each week from the date of such notice until the general election, describing the several legislative districts in such notice the same as attempted to be…

<p>APPEAL from the Circuit Court for Dane County.</p> <p>The facts are stated in the opinion.</p> <p>They argued, among other things, that the general rules of liability of persons and corporations towards children are the same as they are in favor of adult persons, with the distinction that a much less strict rulé is held in respect to contributory negligence'upon their part: Railroad, Go. v. Gladmon, 15 Wall. 401; Lynch v. Smith, 104 Mass. 52yEwen v. 0. <&F. W. R. Go. 38 Wis. 613. It has never been held, except under local statutes, that a child injured while playing on the street had not the ordinary right to gd to the jury on the question of contributory negligence. The cases may be divided into three classes: (1) Where the liability is in favor of persons and property generally, and the 'accident happens to the child either wholly engaged in play or using the street in the ordinary way. Here it is held, without dissent, that a child has the same rights as an adult. Chicago v. Reafe, 114 Ill. 222; Indianarpolis v. Emmelman, 108 Ind. 530; McGuire v. Spence, 91 N. Y. 303; Donoho v. Vulcan Iron Works, 7 Mo. App. 447, approved 75 Mo. 404; McGarry v. Loomis, 63 N. Y. 104; Kunz v. Troy, 104.id. 344; Burkett v. Knickerbocker 1. Go. 110 id. 504; Gulf, G. c& S. F. R. Go. v. McWhirter, 77 Tex. 356; Vicksburg v. McLain, 67 Miss. ,4. (2) Where the liability is purely statutory, is in favor of -travelers only, and injury happens to a child engaged in play alone, not being at the time walking or running on the street. Here it is held there can be no recovery. Stinson v. Gardiner, 42 Me. 248; Hill v. Boston, 122 Mass. 344; Blodgett v. Boston, 8 Allen, 237; Tighe v. Lowell, 119 Mass. 472; Lyons v. Brookline, id. 491. (3) Where, as before, the liability is statutory, confined to travelers, and the injury happens to a child while it is using the street for travel and play at the same time. In such a case it is held that there’ may be a recovery. Blodgett v. Boston, 8 Allen, 237; Gulline v. Lowell, 144 Mass. 491; Hunt v. Salem, 121 id. 294; Bliss v. South Hadley, 145 id. 91. That a child, injured by a defect ’while seeking diversion, exercise, or recreation upon the street, has the same right as an adult to go to a jury upon the question of contributory negligence, see, also, Birge v. Gardiner, 19 Conn. 509; Kerr v. Forgv,e, 54 Ill. 482; Strong v. Stevens Point, 62 Wis. 255. The child must have, -in such a case, at least the same right as one who was violating the law at the time of the injury. See Sutton v. Wauwatosa, 29 Wis. 21; Phila., W. c&°B. P. Co. v. Phila. & H. de G. S. T. Co. 23 How. 209; Sehmid v. Humphrey, 48 Iowa, 652; Wharton, Neg. sec. 331; Pobin-son v. Pioehe, 5 Gal. 460; Alger v. Lowell, 3 Allen, 402; Cramer v. B'urlmgton, 42 Iowa, 315. The New England rule is that a child engaged exclusively in .play upon a highway or street is not a traveler under their local statutes.' Blodgett v. Boston, 8 Allen, 237; Hamilton v., Boston, 14 id. 475, 483; Stinson v. Gardiner, 42 Me. 248.’ But plaintiff ■was most clearly a traveler, even within the strict construction of those statutes made by the New England courts. Blodgett v. Boston, 8 Allen, 237; Hunt v.-Salem, 121 Mass. 295; Gulline v. Lowell, 144 id. 491; BUss v. South Hadley, 145 id. 91.</p> <p>contended, among other things, that in Wisconsin the liability of municipalities for injuries caused by defective or insufficient streets is purely statutory, not only as to towns but as to cities. Stilling v. Thorp, 54 Wis. 528, 532; MeLimans v. Lancaster, 63 id. 596, 600. The states Avhich reject the doctrine of implied liability and have statutes on the subject, limit the uses to which the highway or street must be kept in repair. Only those who are using the streets as travelers can recover damages under these statutes. It logically follows that in such states there is no liability where' children or others are injured on the streets while engaged in playing. Blodgett v. Boston, 8 Allen, 237; Tighe v. Lowell, 119 Mass. 472; Stinson v. Gardim,er, 42 Me. 248; Lyons v. Broolcline, 119 Mass. 491; Stickney v. Salem, 3 Allen, 374; McCarthy v. Portland, 67 Me. 167; Richards v. Enfield, 13 Gray, 344. It has been held that the word “ property ” used in the statute does not include property unless it is the property of a traveler. Harp/er v. Milwaukee-, 30 Wis. 365; Liver-more v. Board of Freeholders, 31 N. J. Law. 512. The duty of municipalities is complete when they have made the streets safe for travelers. Ayer v. Norwich, 39 Conn. 379; Wilson v. Granby, 47 id. 73; Ilewison v. Hew Haven, 34 id. 136; Taylor v. Peckham, 8 R. I. 349; McArthur v. Sagi-nano, 58 Mich. 357; State v. Davis, 31 W. Ya. 390; Kelley v. Fond du Lac, 31 Wis. 179; Goeltz v. Ashland, 75 id. 642; Wheeler v. Westport, 30 id. 392; Foshay v. Glen Haven, 25 id. 288; Hawes v. Fox Lake, 33 id. 442; Harper v. Milwaukee, 30 id. 371; Draper v. Ironton, 42 i'd. 696; Houfev. Fulton, 29 id. 304; Strong v. Stevens Point, 62 id. 266. The complaint is defective in that it has no allegation of notice as required by see. 1339, R. S. Decisions to the effect that statutes of limitation do not apply where rights have become vested unless they give a reasonable time to bring action, have no application in this case. It has been frequently decided that rights of action purely statutory may be taken away. Beebe v. O'Brien, 10 Wis. 481; Dillon v. Lvnder, 36 id. 344; McLi/mans v. Laoicaster, 63 id. 600; Louisiana ex rel. Folsom v. Mayor, 109 U. S. 285; Chase v. Curtis, 113 id. 464; De Moss v. Newton, 31 Ind. 219; Sal-teries v. Matthewson, 2 Pet. 380, 413; O’Bannon v. L. C. cfc L. R. Co. 9 Bush (Ky.), 351. But if a seasonable time must have been given, it was given in this case, since the plaintiff had forty days in which to serve the notice after the statute went into effect, and a much longer time after the statute had been approved. This was a longer time than any citizen of Massachusetts has under similar circumstances. Statutes of Mass. 1882, eh. 52, p. 347, requiring notice within thirty days. In Maine the notice must be given within fourteen days, and the action brought within one year. R. S. Maine, 1883, p. 256. In New Hampshire, within ten clays. Statutes of N. H. 1891, oh. 76, p. 224. In Yermont, within twenty* days. Laws of 1882, No. 13, p. 30.</p>

<p>APPEAL from the Circuit Court for Dane County.</p> <p>This is an action upon a policy of insurance. Defendant is a town insurance company, organized on the mutual plan, pursuant to the statute. On November 21, 1884, it issued its policy No. 919 to Mrs. John Dohlantry, insuring her against loss of, or damage by fire or lightning to, a dwelling house and its contents, in the sum of $525, and certain barns and a granary and their contents, and on certain stock, all on the same farm with such dwelling house, to the amount of $1,050,— in all, $1,575. The amount of insurance on each building, and each kind of property, and on the’ stock, is separately specified in the policy. The plaintiffs are the owners of the insured property by descent from Mrs. Dohlantry, now deceased, whose children and heirs they are, and one of them is the administrator of her estate. On March 26,1887, the insured dwelling house and a portion of the insured contents thereof were destroyed by fire. Such dwelling house had not been occupied as a residence for more than a year before the fire, but the insured furniture constantly remained therein.</p> <p>On April 1, 1887, one of the owners of the insured property went before the board of directors of the insurance company, and submitted to an examination concerning the loss. After such examination the board passed the following resolution: “It being clearly shown to the board of directors that said house was not occupied, but vacant, for four months previous to the fire, thereby excluding the company from the liability as per section 12, by-laws. Motion carried that the claim-of Mr. Dohlantry be disallowed.” Section 12 of the by-laws, above mentioned, is as' follows: “ This company will not insure unoccupied dwelling houses, and -will not be liable for nor pay any loss on any dwelling houáe which has been vacant for thirty days previous to the occurrence of the loss.” The company made no further declaration of a forfeiture of the policy. In January, 1888, and again in January, 1889, the board of directors reported to the company the policy in suit as a valid policy for the whole amount of $1,575.</p> <p>On May 7, 1889, an assessment of two per cent, was made by the board of directors on this policy and all other outstanding policies issued by the company, to pay losses which occurred after the plaintiffs’ dwelling house and contents were burned. The plaintiffs paid this assessment to the treasurer of the company, and the payment was duly reported to the board of directors and the company, neither of which repudiated the assessment of plaintiffs’ policy.</p> <p>On the above facts the circuit court directed a verdict for the defendant, holding that the policy in suit had become forfeited by non-occupancy of the insured duelling house, and judgment was ordered accordingly. Plaintiffs appeal from the judgment.</p> <p>They argued, vnter alia, that to work a forfeiture under a clause in the by-laws the clause must be so clear and plain and so free from ambiguity that anyone cannot be misled; and to prevent such forfeiture the court will construe the contract of insurance as strongly against the insurer and as favorably for the insured as its terms will permit. Shafer v. Phoenix Ins. Po. 53 "Wis. 361; Walcefield v. Orient Ins. Go. 50 id. 532; Kircher v. Mihoaulcee M. M. Ins. Go. 74 id. 470; Morse v. Buffalo F. do M. Ins. Go. 30 id. 534; Herrman v. Merchants' Ins. Go. 81 N. Y. 184; Boon v. AEtna Ins. Go. 40 Conn. 586; National Bank v. Insurance Go. 95 U. S. 673, 678. The word “ vacant ” is not synonymous with “ unoccupied.” It means empty of everything but air. Webster, Diet.; Worcester, Diet.; Anderson, Law Diet.; Bouvier, Law Diet.; 1 Wood,E. Ins. 224; 1 May, Ins. sec. 249A; Ostrander, E. Ins. sec. 140; Herrman v. Merchants' Ins. Go. 44 N. Y. 'Super. Ct. 444 ; 8. 0. 81 N. Y. 184; Woodruff v. Imperial F. Ins. Go. 83 id. 133; Ilerrmcm v. Adriatic F. Ins. Go. 85' id. 162. The levy, acceptance, and retention of the assessment upon this policy by the company, with knowledge of all the facts constituting the alleged breach of contract, is a waiver of any breach known at that time. Erdmann' v. Mutual Ins. Go. 44 Wis. 376; Joliffe v. Madison Mut. Ins. Go. 39 id. Ill; Jerdee v. Cottage Grove Mut. Ins. Go. 75 id. 345; Palmer v. St. P. F. cfi M. Ins. Go. 44 id. 201; Osterloh v. Few JDenma/rh M. IT. F. Ins. Go. 60 id. 126; Morrison v. Wis. O. F. M. L. Ins. Go. 59 id. 162; 11 Am. & Eng. Ency. of Law, 340; 2 Wood, F. Ins. sec. 542; Masonic Mut. Ben. Asso. v. Beak, 77 lad. 203, 40 Am. Rep. 295; Viall v. Gen-esee Mut. Ins. Go. 19 Barb, 440; Phoenix Ins. Go. v. Lansing, 15 Neb. 494; Keenan v. Bubuque Mut. F. Ins. Go. 13 Iowa, 375; Mershon v. Fat. Ins. Go. 34 Iowa, 87; Sehonernan v. Western H. Jo G. Ins. Go. 16 Neb. 404. The failure to cancel the policy and notify appellants immediately thereof, and return to them the undertaking and the unearned premium, was a waiver of the alleged forfeiture. Wahefield v. Orient Ins. Go. 50 Wis. 532, 536; Joliffe v. Madison Mut. Ins. Go. 39 id. Ill; Morrisonv. Wis. O. F. M. L. Ins. Go. 59 id. 162; Osterloh v. Denmcvrh M. II. F. Ins. Go. 60 id. 126; Appleton Iron Go. v. British Am. Ins. Go. 46 id. 23; 2 Wood, F. Ins. sec. 542; 1 May, Ins. secs. 67, 67d, 67j; Os-trander, F. Ins. 45, 49, 50; Mutual L. Ins. Go. v. French, 30' Ohio St. 240; 11 Am. & Eng. Ency. of Law, 342; Teutonia L. Ins. Go. v. Anderson, 77 Ill. 384; Georgia M. M. L. Ins. Go. v. Gibson, 52 Ga. 640; Guernsey v. American Ins. Go. 17 Minn. 104; Otto v. Ontario & L. M. Ins. Go. 5 Hill, 147. The policy was not divisible, and it did not lie with the board to cancel a part thereof. Stevens v. Queen’s Ins. Co. 81 Wis. 335; Loomis v. Boclcford Ins. Go. id. 366; Hinman v. Hartford Ins. Go. 36 id. 159; Schumitsch v. Am. Ins. Go. 48 id. 26, 30; 1 May, Ins. secs. 189, 249a/ 1 Wood, F. Ins. 383; Hartshorne v. Agricultural Ins. Go. 50 N. J. Law, 427.</p> <p>They contended, among other things, that the building was vacant and unoccupied within the meaning of the policy for more than thirty days without consent. Sonneborn v. Manufacturers Ins. Co. 44 N. J. Law, 220; Whitney v. Slack R.Hns. Co. 12 N. T. 117, 28 Am. Eep. 116, 118; Wustum v. City F. Ins. Co. 15 Wis. 138 \ Fitzgerald r. Conn. F. Ins. Co. 64 id. 463; Sleeper v. N. U. F. Ins. Co. 56 N. H. 401; Moore v. Phcenix F. Ins. Co. 64. id. 140, 10 Am. St. Eep. 384; Continental Ins. Co. v. Kyle, 19 Am. St. Eep. 77, 82, 86; Alston v. Old, N. S. Ins. Co. 80 N. 0. 326; Ashworth, v. Builders’ M. F. Ins. Co. 112 Mass. 422; American Ins. Co. v. Fadfiel,d, 78 Ill. 167; Cook v. Continental Ins. Co. 70 Mo. 610; Phoenix Ins. Co. v. Tucker, 92 Ill. 64; Sexton v. Ha/wkeye Ins. Co. 69 Iowa, 99; Bitch v. North Brit, db M. Ins. Co. 136 Mass. 491. Defendant was not estopped to assert the invalidity of the policy either by the assessment or by its acts subsequent to the payment thereof. May, Ins. secs. 507, 508; Diehl v. Adrnns Mut. Ins. Co. 58 Pa. St. 443, 98 Am. Dec. 302; Beatty v. Lycoming Mut. Ins. Co. 66 Pa. St. 9, 5 Am. Eep. '318; Swett v. Citizens’ Mut. R. Soc. 78 Me. 541; Northwestern Mut. L. Ins. Co. v. Amerman, 119 Ill. 329; Higgler*. American Floyds, 14 Eed. Eep. 143. ■ The contract was divisible, and the company could with entire propriety refuse to pay that part to which it had a valid defense, and still treat the policy as a subsisting policy as to the residue. Loomis v. Rockford Ins. Co. 81 Wis. 366.</p>

<p> Pleading: Joinder of causes of action. </p> <p>Deceit in the sale of a horse is an injury to property without force, within the meaning of subd. 3, sec. 3647, R. S., and a cause of action therefor may be united with a cause of action for an injury to realty by waste.</p>

<p>APPEAL from the Circuit Court for Outagamie County.</p> <p>This action was brought to recover damages for personal injuries suffered by plaintiff while in the employ of defendant on the 12th day of February, 1888. On that day the plaintiff, being eighteen years of age, was employed by defendant to work in some capacity about a paper machine in defendant’s mill. Plaintiff claims to have been erm ployed as a cutter boy, and defendant 'Claims he was employed as back tender. Immediately after going to work he was sent by the foreman of the machine to oil the gearing, the machine being then in motion. The machine was what is known as a “ double decker,” having two rows of unprotected cogwheels, about four feet in diameter, upon one side. Each one of the upper cogwheels is geared to work into two of the lower wheels. It was the bearings on this side of the machine which. the plaintiff was sent to oil. Above each of the lower wheels was a triangular space something like a foot in width at the base, and taper-ing upwards to four inches in width. In this triangular space, and about ten inches inside of the face of the cogwheels, was the journal of a roller called a “ dryer,” which carries the paper from cylinder to cylinder. This journal.. it was necessary to oil through a small hole in the journal, bos. The plaintiff was given a scpuirt oil can eight and. one-half inches, in length, and while oiling one of these journals his right hand was drawn between the upper -and. lower cogwheels, and so mangled as to require amputation..</p> <p>The complaint charged negligence in setting plaintiff at such dangerous work without experience, and without instruction or caution as to its dangerous character. The answer consisted practically of a general denial. Amotion for a nonsuit at the close of plaintiff’s testimony was overruled, and exception taken.</p> <p>The jury rendered a special verdict as follows: “(1) Was the plaintiff injured while engaged in oiling a paper machine in the paper mill of defendant? Ansioer by the Court: Yes. (2) Was he so engaged in oiling said paper machine by direction of a person having control and direction of the work of the employees on said machine? Answer by the Cowrt: Yes. (3) Was the plaintiff of sufficient age, understanding, and experience in the business to comprehend the dangers incident to such work or employment? (To the submission of said question the defendant objected. Objection overruled. Defendant excepted.) Answer: No. (4) If you answer the third question, ‘No,’ then answer this question: Had the plaintiff been sufficiently instructed or cautioned by the agents or employees of the defendant as.to the danger of the work, so as to enable him to comprehend and understand it, prior to the accident? This question was answered, with the consent of both .parties, by the court, ‘ No.’ (5) Was the plaintiff, at the time the accident happened, using such eare and attention in the performance of the work he was engaged in, as an ordinary, prudent, and careful person of the same age, understanding, and experience would have used? (To the submission of said question the defendant objected. Objection overruled. Defendant excepted.) Answer: Yes. (6) What amount of damages has the plaintiff sustained by reason of the injury? Answer: $5,000.” From judgment for the plaintiff, entered on such verdict, defendant appealed.</p>

<p>APPEAL from the Circuit Court for Grant County.</p> <p>Ejectment. The facts are sufficiently stated in the opinion. The plaintiff appeals from a judgment in favor of the defendants.</p> <p>argued, among other things, that an executory contract for purchase is sufficient, to give color of title. Fxwlong v. Garrett, 44 Wis. Ill; la Frombois v. Jackson, 8 Cow. 589; Briggs v. Prosser, 14 Wend. 227; Elliott v. Mitchell, 47 Tex. 445; Spitler v. Scofield, 43 Iowa, 511. Where one enters under executory contract he may set up the statute as against others than his vendor. 1 Am. & Eng. Ency. of Law, 232; Elliott v. Mitchell, 47 Tex. 445. The vendee’s possession is the possession of his vendor at least, and after deed pursuant to the contract the vendee has the benefit of his own previous possession on behalf of his vendor by virtue of the deed. Fxorlong v. Garrett, 44 Wis. Ill; Lewis v. Bmmhart, 145 U. S. 56; Snapp v. Peirce, 24 Ill. 156; Russell v. Mandell, 13 id. 136; Schneider v. Botsch, 90 id. 511. An executory contract, at any rate after purchase price paid, is good for color of title as against the vendor from the date of full payment. Furlong v. Garrett, 44 Wis. Ill; Cawley v. Johnson, 21 Fed. Eep. 492; 1 Am. & Eng. Ency. of Law, 230. If a new entry were necessary, the recording of the deed was equivalent to a new entry under claim of title, and from thence the possession was adverse. Link v. Doerfer, 42 Wis. 391; Pepper v. O'Dowd, 39 id. 538.</p>

<p>CRIMINAL Law and Practice. (1) Instructions to jury: Misapprehension of evidence. (2,3) Promise of clemency made to jury: Evidence.</p> <p>1. On a trial for an assault with intent to kill, defendant claimed that he shot the complaining witness in self-defense. Said witness testified that his revolver was discharged in a scuffle before the defendant shot him, but the court instructed the Jury that the evidence of the state was to the effect that the revolver was not discharged until after defendant had shot him. Held, error.</p> <p>2. The judgment on a verdict of guilty will be reversed where such verdict was only agreed upon after the jury had asked for and received an assurance from the trial judge that they could depend upon the clemency of the court to the defendant.</p> <p>3. Affidavits of the jurors are admissible to show that they received such an assurance. Edmister v. Garrison, 18 Wis. 594, distinguished.</p>

<p> Appeal: Death of trial judge before settlement of bill of exceptions: Dismissal: Costs. </p> <p>1. Where the appellant is unable to procure the settlement of a bill of exceptions because of the death of the trial judge, he will be allowed to dismiss his appeal for the purpose of moving for a new trial, without regard to the probable or even necessary result of such motion.</p> <p>2. Costs will be allowed upon such dismissal. Sueterlee v. Sir, 25 Wis. 357, distinguished.</p>

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

This was a proceeding commenced in the county court of Douglas county, under the provisions of ch. 286, Laws of' 1881, to determine the descent of certain lands in said county owned by Jeremiah 0. Tullís in his lifetime, who died intestate at his residence in Cincinnati, Ohio, March 9, 1878. The application was made by the appellant, Spencer, who, by his. petition, set up the facts required by secs. 2 and 3 of said ch. 286.

This action was brought upon a contract made between one McCann and the village of Superior, organized under ch. 40, K. S., and acts amendatory thereof, for the erection of a crematory according to the Kilvington patent for the destruction of garbage, dead animals, etc. The work was let to the lowest bidder, but prior thereto Kilvvngton, the owner of the patent for building the crematory, appeared before the village board while in session, and agreed he would allow it and…

The action is to recover damages for personal injuries to plaintiff, alleged to have been caused by the negligence of the defendant company. The company owns and operates a street railway in Superior city. The cars used thereon are propelled by electric power. On the evening of December 23, 1890, two cars, attached together by a draw-bar, were being run by the company on its railway, for the transportation of passengers.

The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. They contended, inter alia, that in securing the signature of defendant to the contract, and in the delivery of the check to him, Crosby acted as the agent'of plaintiff. Even if he had been the agent of defendant for some purposes, he could also become the agent of plaintiff in the same transaction. Orton v. Scofield, 61 Wis. 382; Barry v. Schmidt, 57 id. 172.

This action was brought to recover damages for injuries which resulted in the death of Annie Flynn, plaintiff’s intestate, alleged to have been caused by the defendant in the negligent operation of its trains in the city of Superior, December 6, 1890.

This action was commenced to foreclose a lien for supplies furnished by the appellants to the respondent Agnew, and used in and about the cutting and hauling of 2,000,000 feet, board measure, of logs which were put in the Brule river; in Douglas county Wisconsin, and 200,000 feet, board measure, of said logs were attached by warrant under the lien law. One Matt. Murphy was made a codefendant with Agnew. Neither of them appeared.

In April, 1888, Lelia M. Shuman died intestate, leaving surviving her the appellant, Alexander Shuman, her husband, and Frances M. and Sarah M. Shuman, her children and only heirs at law. The intestate died seised of certain real estate in Rock county.

Mandamus. The facts are sufficiently stated in the.opinion. The appeal is from a judgment awarding a peremptory writ. They contended, inter alia, that the terms of office of the, appellants having expired they would not now be permitted to act. Clark v. Buchanan, 2 Minn. 346; People ex rel. Bailey v. Supervisors, 12 Barb. 211; Oglesby v. Sigmcm, 58 Miss. 502; Myers v. Chalmers, 60 id. 772; Swain y. McBea, 80 N. C. Ill; In re Board of Canvassers, 12 N. T. Supp. 174.

This is an appeal from a judgment of the circuit court of Rock county, adjudging Julia L. Nims, since deceased, to be the widow and only heir at law of C. C. Thompson, deceased, intestate, and assigning the residue of his estate to her as such widow. C. C. Thompson died a resident of Rock county in July, 1881, leaving no issue. lie left brothers and sisters, among them the appellant.

This action was commenced in justice’s court under the statute giving a remedy in case of unlawful detainer, and the complaint charges that on or about the 13th day of March, 1891, the above-named plaintiff was, and ever since has been, in the possession of the following described premises, to wit (describing the premises in particular); that on the 4th day of April, 1891, the defendant was a tenant by sufferance of the plaintiff, and was then, and still is, occupying the…

This is a proceeding instituted by the respondent, A. Ilyatt Smithy for the appointment of commissioners to appraise certain lands in the city of Janesville, occupied by the appellant’s tracks, and which respondent, as trustee under the will of his late wife, claims to own, and w’hich he alleges to have been taken by the appellant without, purchase or payment of damages.

The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.

This is an action to recover damages for personal injuries alleged to have been inflicted by defendant upon plaintiff.

The appellant, Parsons, was sheriff of Waukesha county for the years 1889 and 1890. Prior to his election and qualification, pursuant to ch. 53, Laws of 1881, the compensation of the sheriff for services, etc., for which the county was liable to pay was changed from a fee-bill system to a salary system, and he was to receive $2,500 per annum in lieu of all fees and compensation which might have been charged under the former method.

This is a civil action brought in the circuit court by D. S. Tullar, Esq., then the district attorney of Waukesha county, to recover of defendant the forfeitures imposed by sec. 1331, R. S., for alleged encroachments upon a public highway in the town of Mukwonago in that county. Judgment is demanded for $426 and costs. A trial in the circuit court resulted in a judgment of nonsuit. The district attorney took an appeal from such judgment, and this court reversed the same.

The facts are sufficiently stated in the opinion. The appeal is from a judgment quashing an alternative writ of mandamus and dismissing the petition. To the point that mandamios was the proper remedy, they cited State ex rel. Bloxham v. Gibbs, 13 Fla. 55, 7 Am. Rep. 233; Louis v. CormJrs, 16 Kan. 102,. 22 Am. Rep. 275; People ex rel. Ryan v. Nordiheim, 99 Ill. 553; State ex rel. Brown v. Boden, 51 N. J. Law, 114; Smith v. Lawrence, 49 N. W. Rep. (S. Dak.), 7; People ex rel.

This action was brought to recover possession of a strip of land one and one-half rods wide, described in. the complaint by metes and bounds, to and from a certain farm of fifty-one acres of land belonging to the plaintiff, the plaintiff alleging that he is the owner in fee simple of the strip of land claimed. The answer was a general denial.

The action was upon contract. Plaintiff alleges that defendant employed him to investigate the cause of a number of supposed incendiary fires which had occurred in the town of New Berlin, Waukesha county, and agreed that, if he would cause the arrest of the person wh'o set the fires, or any of them, and convict him before a jury in the circuit court, he (defendant) would individually pay him $500 for his services; that he (plaintiff) performed his part of the contract,…

The action is to recover damages for a trespass alleged to have been committed by defendant upon the land and property of plaintiff. The plaintiff is the owner of the N. E. \ of the S. W. -J of a certain section of land in Dodge county, and the defendant is the owner of the S. E. of the N. W. J of the same section, lying north of and adjoining plaintiff’s lot.

The facts are stated in the opinion. There was a verdict in favor of the defendant for $135, and from the judgment entered thereon the plaintiff appealed.

This is an appeal from the judgment of the circuit court refusing to admit to probate He alleged will of John Huebschen, deceased, and reversing the order of the county court admitting the same to probate. The action was tried in the circuit court with a jury, to whom two questions were submitted, namely: (1) Was said John Huebschen of sound mind when said testament was executed ?

The plaintiff complained of the defendants for breaking and entering premises May 28,1891, of which he claimed to be the owner and in possession, being the S. ~W. \ of the N. W. J of section 16, etc., and tearing down and destroying á certain fence thereon, to his damage $50. There was a second count, alleging trespass to the plaintiff’s crops and fences three days thereafter.

<p>Ceiminal Law and Praptice. , (1) Counsel to assist district attorney. (2) Misconduct of district attorney: Disqualification.</p> <p>1. The “ counsel ” appointed under sec. 752a, S. & B. Ann. Stats., to assist the district attorney in a prosecution for a felony, must be a member of the bar of this state. The appointment of a resident and attorney of another state, and his participation in the prosecution, constituted a material error.</p> <p>2. Where, by false pretenses, the district attorney induced a person accused of murder to impart to a person employed by him information prejudicial to her defense, she supposing that she was making a confidential communication to be conveyed to her own attorney, the district attorney thereby became disqualified to act as such in the case; and where he did so act thereafter, a conviction should be set aside.</p>

<p> Excise laws: Sale of liquor by agent. </p> <p>A sale of beer, whether to a dealer or to a consumer, cannot lawfully be made by an agent from a warehouse or store-room in a city other than that in which the brewery is located, without first obtaining a license from the city m which the sale is made.</p>

<p>APPEAL from the Circuit Court for St. Croix County.</p> <p>Mapidamus to compel county board to appropriate $400 for repairing bridges in the town of Star Prairie, under the provisions of ch. 187, Laws of 1885. The petition for the writ alleged that on the 2d day of April, 1889, the electors of the town levied $400 on the taxable property of the town for rebuilding and repairing certain bridges across Apple river in said town; that said bridges were out of repair, unsafe, urgently in need of repairs, and each situated on a public highway in said town; that the total cost of such repairs will be not less than $800, which' exceeds one fourth of one per centum of all the taxable property in said town by the last equalized valuation; that the town board of supervisors duly filed its petition with the county board at its regular session in 1889, which petition is set forth in full, and substantially agrees with the requirements of sec. 1319, K. S., as amended; that the county board refused to appropriate the sum requested, or any sum whatever; that such sum of $400, together with all other sums levied by the board for other county' bridges, would be less than two mills on the dollar of the valuation of the taxable property of the county; and that authority had been duly given by the town to the town board to prosecute this action. Upon this petition an alternative writ of mandamus was issued-</p> <p>The county made return to the writ in substance as follows : First. That the only action of the town in raising the sum of $400 was as follows, as appears by the record of tbe meeting: “A motion was then made by T. Jewell, and seconded, that the town raise a tax of $400 for the purpose of rebuilding and repairing the bridges on Apple river, situated on section one (1), eleven (11), twenty-two or twenty-one (known as the‘Parent Bridge’), and thirty-one (31). The motion was carried by vote,”— and that the location of the bridge or bridges to be repaired is so indefinite and uncertain that the respondent could not act upon it. Second. Denying that the bridges named were dilapidated, unsafe, or in. need of repair, or that the safety and convenience of the public demanded their repair; also denying that said bridges are public necessities or are situated on public highways, and alleging that no estimate of the cost of such re-, pairs, or plans or specifications thereof of any kind, were ever made by the town or presented to the county board. Third. Denying that the cost of repairing said bridges will exceed one fourth of one per centum of the equalized valuation of the taxable property of the town for the year 1888. Fourth. Admitting that the town supervisors presented* the petition to the county board for aid in the repairing of the bridge, but' denying that it was legally offered on behalf of the relator, for the reason that neither the town nor the electors thereof ever authorized or directed the presentation of said petition. Fifth. Denying that the electors of the town ever authorized the supervisors to institute this action or any legal proceeding against the county, and alleging that the equalized valuation of the town for the year 1888 was fraudulently made at forty per cent, of the true value, and that, if made in accordance with law, one fourth of one per centum of the taxable property would be $1,347.45. Sixth. That Apple river, where said bridge is to be rebuilt, is a navigable stream, and that for that reason the county had no'authority to grant the petition of the relator. Seventh. That prior to 1875 the main traveled road through the village of Star Prairie was on the section line between sections 1 and 12, and crossed Apple river at a point where the river is only about 110 feet wide, and where a bridge may be built easily, and at, about one half of the expense of building the bridge where it is at present located; that in 1875 or 1876 the town abandoned said crossing, and built the present bridge, against the wishes of a number of inhabitants of the town, about sixty rods north of the former crossing, where the water is deeper, the approaches soft and boggy, and the expense of construction double the expense at the former site. Eighth. That it would be inequitable and unjust to compel the county to pay any part of the cost of repairing the bridge in question, as the majority of the people of the county have no interest in the maintenance thereof, and the county board has the right to select the point where they will build the bridge. ’</p> <p>To this return the relator demurred generally, on the ground that it stated no defense, and it also demurred separately to each alleged defense on the same ground. The demurrers "were sustained, except the demurrer to that part of the return which denied that the electors of the town authorized legal proceedings to be commenced against the county board, which was overruled, and to this order due exception was taken by the county. No further return was made. The issue as to whether the town authorized the prosecution of these proceedings was tried, and found in favor of the town, whereupon judgment was rendered against the county board that the peremptory writ of mandamus issue directing the appropriation by the county of $400 to assist in the repairing of said bridges, and that commissioners be appointed to co-operate with the town in the work, in accordance with the provisions of law. From this judgment the county board appealed.</p>

<p>Res adjudicata: Judgment on verdict directed by the court.</p> <p>Defendant having moved the court to direct a verdict in its favor on each of the three causes of action stated in the complaint, the court directed the jury that the damages, if any, assessed against defendant, must be confined to the first and third causes of action, as the evidence in relation to the second cause was insufficient to authorize any damages. The jury returned a general verdict for plaintiffs, assessing their damages at a certain sum. Held, that as to the second cause of action this must be treated as a verdict in favor of defendant, and that the judgment thereon was a bar to a subsequent action for that cause.</p>

Action to recover the sum of $924 paid by plaintiff to defendant upon a policy of insurance against fire. The facts are sufficiently stated in tbe opinion.

The complaint alleges that the plaintilfs were at the times named, and are, copartners, doing business under the firm name of the United States Express Company; that other persons were and are associated with them as dormant partners; that such dormant partners are very numerous, and reside far apart, and that it is impracticable to bring them all before the court; that the plaintiffs sue, not only for the benefit of themselves, but for all of such dormant partners; that as…

The respondent commenced this action by service of summons and complaint to recover for personal injuries resulting from a fall upon an alleged defective sidewalk in the city of Ashland, January 12, 1892. The complaint alleged the giving of notice to the city under the provisions of sec. 1339, E. S. 1818, but did not allege the presentation or filing of any claim with the city clerk, or appeal from the disallowance of such claim.

The plaintiff brought ejectment for the undivided half of forty acres of land in the town of Yernon, Waukesha county, and both parties claim title under and through their deceased uncle, Alexander… Held: possession of and occupied the premises, claiming to own the same under the said deed of February 3, 1860.

The plaintiff, Kruschke, alleges,, in substance, an agreement between him and the defendant, in September, 1883, to purchase six lots (describing them) in block 113 of Yaughn’s division of the «ity of Ashland, then owned by one Fifield, for $1,800, $1,700 of which was to be paid by the plaintiff and $100 by the defendant, and the title to said lots to be taken and expressed in the deed therefor one half to Peter Stefan in fee, and one half in trust for or to the use of the…

The action is replevin to recover a quantity of lumber. The complaint is in the .usual form.

On November 7, 1887, Henry M. Johnson, domiciled in Ashland county, died intestate.

Slander. The material allegations of the complaint were as follows: “That on or about the 22d day of June, 1891, at the county of Ashland, in the state of Wisconsin, the defendant, contriving to injure the plaintiff in her reputation, and to bring her into public contempt and ridicule, did in a public place, in a certain discourse, in the presence and hearing of divers persons, wrongfully and maliciously speak the following false and defamatory words of and concerning the…

The allegations of the complaint, in substance, are that the plaintiffs are copartners, as well as the defendants, and that on the 25th day of January, 1890, they sold and delivered to the defendants, on their order, an 18-inch block shingle machine and a smaller machine, and the iron parts for others, all at the agreed price of $2,216.75, upon the terms that the defendants should take the machinery on thirty days trial, and, if at the end thereof it was satisfactory,…

The facts are sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. They contended, inter alia, that the promise made by the defendant’s auditor that the station agent would not be discharged cannot bind the defendant. Kelly v. Troy F. Ins. Go. 3 Wis. 254; National L. Ins. Co. v. Minch, 53 U. T. 144-150; 1 Am. & Eng. Ency. of Law, 423.

At the general election last preceding April 5, 1892, the town of Minocqua was divided into two election precincts, the first being at the… Held: and then and there make a statement in writing of the whole number of' votes given for each office at said town meeting held at the first precinct, and the names of the persons for whom such. votes were given, and the number of votes given for each i person, and certify, upon such statement, their determina- • tion of the persons…

This action is upon a promissory note, and was brought by the plaintiff, the indorsee and holder, against the maker and an indorser thereof. The note in suit was made by the defendant Lawrence for $400 and ten per cent, interest, payable to the order of the defendant Williard two years after the date thereof, which is October 23, 1889.

The defendant Pelican Boom Ccrmpany is a corporation maintaining under authority of law a system of booms and piers across the Wisconsin river near Rhinelander, for the purpose of handling and assorting logs which are floated down said river. During the winter of 1891 and 1892 one Nathan cut timber from a tract of land situated on a tributary of the Wisconsin above the booming works, placed a mark upon the logs, banked them, and sold 'them to plaintiff.

<p> Appeal from city council: Bond. </p> <p>1. Under a city charter providing that the bond upon an appeal from the common council should be conditioned for the payment of “all costs that shall be adjudged against the appellant by the court,” a bond reciting an appeal to the circuit court for E. county, and conditioned for the payment of all costs adjudged against the appellant “by the Court aforesaid,” was insufficient, and the circuit court .acquired no jurisdiction. The sureties in such bond would not be liable for costs adjudged in the circuit court for another county to which the venue might be changed.</p> <p>2. After the time for perfecting such an appeal has expired, a defect in the appeal bond cannot be cured by amendment or by filing a new bond nunc pro tunc.</p>

The plaintiff resided, at Ashland, and the defendants at Dunkirk, N. Y. On January 5, 1891, they entered into an agreement in writing to the effect that the plaintiff an that day sold to the defendants, to be delivered in the Shores Lumber Company boom, at their mill in Ashland, a certain lot of white pine saw logs, then cut and skidded, located on the land therein described, in Ashland county, estimated to be from 300,000 to 400,000 feet, and the price to be at $5.50 per…

The defendant, J. F. Ellis, and some forty others, subscribed a fund to erect a creamery at or near the city of Eau Claire, to cost $6,000.

One Eichard T. Farr died intestate December L 9, 1890. In February, 1891, P. J. Cosgrove was duly appointed administrator of his estate, and duly qualified and entered upon the duties of his office. Within the time limited for creditors to present their claims against said estate, IF. H. Frawley filed his verified claim for services as attorney dui’ing the life of said intestate, to the amount of $1,660.

The facts are stated in the opinion. They argued, among other things, that the death of Ida B. Peck revoked her appointment as a beneficiary, and, no other direction being made, the laws of the society control the disposition of the funds. Given v. Wis. 0. F. M. L. Ins. Go. 71 Wis. 547; Riley v. Riley, 75 id. 464.

On the 19th day of June, 1889, plaintiff filed his claim with the city cleric of the defendant city, in which he set forth at length his ownership of certain lots upon a street in said city; and that said street was in the year 1884 actually graded and raised in accordance with the grade thereof theretofore duly established by the council, and that his said lots had been improved and built upon with reference ’to such grade; that an ordinance was passed by said common…

The plaintiff sues to recover damages sustained in consequence of an injury received by him August 27, 1889, while in the employ of the defendant company as a brakeman on its freight train, whereby his left arm was crushed, rendering amputation near the shoulder necessary, caused by the alleged negligence of the defendant and of the engineer in charge of the locomotive.

This is an appeal from an order refusing to grant a preliminary injunction as prayed by the plaintiff corporation, and granting an injunction prayed for by the defendants or some of them.

The appeal is from an order reinstating an appeal by the defendant from a judgment rendered against him in justice’s court, which appeal had been dismissed for want of prosecution. The facts will sufficiently appear from the opinion. For the appellant it was contended, inter,.alia, that the appeal, having been properly dismissed, cannot afterwards be reinstated for any reason. Comdohr v. Colemem, 64 Wis. 413; Holt v. Golemam,, 61 id. 422; R. S. sec. 3766.

On May 12, 1891, an information in due form was filed in the municipal court of Ashland county by the district attorney against Charles Ryan, the plaintiff in error, and two others, charging them jointly with having committed the crime of burglary, by unlawfully and feloniously breaking and entering the dwelling house of one Edward Welsh, in that county, in the night-time of March 13,1891, with intent then and there to commit the crime of larceny.

<p> Criminal law: Obtaining money by false pretenses: Pleading. </p> <p>An information charging that defendant by false pretenses obtained from one N. money, then in the possession of N., belonging to a bank, but not stating that N. was the agent of the bank or had any connection therewith, is held insufficient under sec. 4423, R. S.</p>

The action was brought to recover the purchase price of 1,280,390 feet of pine saw logs alleged to have been sold a,nd delivered by plaintiff to defendants prior to July 5, 1891, under a written contract dated January 23, 1891, the principal provisions of which are as follows: “ The first party hereby sells and agrees to deliver, as hereinafter set forth, to the parties of the second part, one million feet of pine saw logs, cut or to he cut on sections 10 and 14, township 44…

Action upon an accident insurance policy for $3,000, issued to the plaintiff’s testator; by which he was insured for the term of twelve months, to be paid, etc., after due notice and satisfactory proof (1) “ that the insured, during the continuance of the policy, has sustained such violent and accidental injuries as shall be externally visible on his person, and which alone shall have caused his death within ninety days from the date of such accident, or, if this policy be…

This action was brought to recover $400 for a car load of flour, alleged to have been Sold and delivered by the plaintiff to the defendant, and the answer was a general denial, and upon trial before a jury the defendant had a verdict and judgment, from which the plaintiff appealed.

This is an action to recover $350 for flour and feed sold to. the defendant’s intestate, Levi Archer, by W. S. Col-burn, on credit, before September 7,1885. The account was duly assigned by Colburn to plaintiffs at that date. The plaintiffs paid Colburn a valuable consideration therefor.

The facts are stated in the opinion. They contended, inter alia, that the counterclaim, which is for damages for negligence, did not arise out of the transaction set forth in the complaint, for that was the threshing of the grain, which was finished before the ground of counterclaim arose; nor is such counterclaim connected with the subject of thp action, for that is plaintiff’s right to the money sued for, and the counterclaim in no wise denies that right.

The action is to recover the value of á horse claimed to have been killed by the negligence of defendant. There is but little dispute as to the facts. Defendant’s railroad crossed plaintiff’s farm, separating a part of the pasture land from the buildings. At one place there was a swale or depression, which the railroad crossed at right angles, Avhere considerable water ran in the spring of the year.

This action was brought by the executors of the will of one Jacob Wiesmann, who died in September, 1885. It was originally commenced in a justice’s court.

Divorce. Plaintiff brought the action in August, 1891, alleging marriage June 20, 1890, and setting forth two alleged causes of action,— the first for cruel and inhuman treatment, a number of instances being set forth; the second for refusal to cohabit with plaintiff, except on one occasion, about three months after the marriage.

The plaintiff brought an action of replevin for a quantity of oats, and the answer was a general denial and title in defendant.

About June 4, 1888, defendants Opperman & Baalke contracted to build a house for defendant Henry Pohls, for §1,250. They proceeded with the execution of their contract, but before it was completed, and before August 6, 1888, abandoned it. Before such' abandonment, defendant Ilenry Pohls paid Opperman & Baalke $700 on the contract, and it necessarily cost him more than $550 to complete the house according to the contract.

<p> Dismissal for failure to file summons and pay state tax: Rule of court. </p> <p>A special rule of the circuit court for Milwaukee county, providing that the clerk shall not receive or file any note of issue or place any cause on the calendar unless all the pleadings served have been filed and the state tax and two dollars fee for clerk’s salary have been paid, does not require a defendant to pay the state tax and clerk’s fees before moving to dismiss the action, under sec. 2632, B. S., for failure of the plaintiff to file the summons and pay the state tax.</p>

This action was commenced before a justice of the peace, February 7, 1890.

Eeplevin for a span of horses, harnesses, and a wagon. The property was originally owned by the defendant Williams. One Thiele, plaintiff's intestate, in his lifetime, negotiated with Williams for the purchase of the property, and obtained possession of the same by virtue of such negotiations. It was claimed by plaintiff on the trial that-Thiele in fact purchased the outfft for the agreed price of $400, and that be was to have a few days’ time to pay the purchase price.

Action for taking, carrying away, and converting a stock of goods alleged to have been the property of John IT. Hanson and Caretha M., his wife, as copartners under the name of Hanson & Co., at West Bend, Wis., and of which property they executed a bill of sale, April 30, 1889, to Daniel K. Green, as the agent of the plaintiff, an Illinois corporation, to secure a debt due to it of $530.89.

This is an action in equity, brought by the plaintiff •against the city of Milwaukee and one Eichardson to restrain them from depositing in Lake Michigan the garbage •collected in said city. Eichardson was the contractor with the city to deposit such garbage in the lake. He made no-answer to the complaint, and no further reference need be made to him.

Action to recover the amount of taxes paid under protest. The facts are sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. They contended, inter alia, that under existing statutes the personal property of the plaintiff corporation is properly assessable only in the assessment district where it is located by its articles of organization. E. S. secs. 1040,1041,1772, 1718, subd. 4.

This action was commenced May 10, 1890, to recover damages for personal'injury sustained by the plaintiff, and allegéd to have been received by reason of a defective and insufficient sidewalk at the southwest corner of the intersection of Third and Wells streets, in the defendant city, while walking thereon, on January 5, 1889, and that the plaintiff caused a written notice of such injury and such defect, as required by the statute, to be served upon the city clerk, March…

The plaintiff, Stem, brought this action against Henry Benedict, Charles H. Bellaelc, Philip Stein, and James M, Percies and Thomas J. Percies, trustees of the estate of William E. Lamberton, deceased, and Michael Walsh, sheriff, etc., defendants; and his complaint is, in substance, that the defendants Benedict and Stein were copartners with him as merchants, under an agreement that Philip Stein should be special partnér, and contribute $25,000, Ilenry Benedict the sum of…

On November 15, 1884, one William A. Webber died at the age-of about sixty-six years, domiciled in Milwaukee, leaving him surviving a widow, Mary H., who was at the time about sixty-seven years of age.

Action to recover damages for the killing of plaintiff’s intestate. The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.

In 1885 the Chicago, Mihoatikee & St. Paul Railway Company laid one of the tracks of its railroad diagonally, from southwest to northéast, across Commerce (formerly Water) street, in the Second ward of the city of Milwaukee, and has ever since used and operated the same. This track is laid across the northwest corner of lot 4, block 32, if such lot extends west to the center of the street.

APPEALS from the Circuit Court for Milwaukee County. The railway company laid one of its tracks upon the lot of the plaintiff in the city of Milwaukee, and delayed or omitted to institute and prosecute condemnation proceedings to ascertain the compensation to which the plaintiff is entitled because thereof. Thereupon the plaintiff instituted such proceedings, and procured the appointment of commissioners to determine such damages.

The plaintiff corporation is the owner of large quantities of land in the defendant county and towns, and brings this action to restrain the county from paying certain county orders issued by it to such towns, and to annul such orders.

The defendant company appeals from a judgment against it for $4,000 and costs, recovered by plaintiff in an action for personal'injuries alleged to have been caused by the negligence of the servants of the company in operating one of its locomotives on its railroad at a point on the Wisconsin Yalley division thereof, in Oneida county, known as Harsh aw.

PetitxoN for a writ of mandamus to compel the commissioner of insurance to issue to the relator a license authorizing it to do business in this state, pursuant to ch. 418, Laws of 1891. The petition was filed May 18, 1892, upon leave granted, and an alternative writ was issued.