Volume 84 — Wisconsin Reports

Garnishment. Appellant sued one Dockery in justice’s court, and garnished the respondent bank. The bank answered, first denying that it was indebted to or had any property of Dockery in its possession, and further alleging that at the time of the garnishment it had in its possession a certified check, as follows: “Phillips, Wis., July 23, 1891. “ The National Fxohange Bank of Milwaukee, Wis.: Pay to the order of Thos. IT. Gill ($150.00) one hundred and fifty dollars.

This action was for trespass and false imprisonment, brought in the superior court of Milwaukee county against the defendants, Martin and Gaynor, for acts done by them, respectively, as county judge and sheriff of Waukesha county, in which they reside. The summons and complaint were served on both defendants November 23, 1891. The defendant Gaynor answered the complaint November 21th, without having taken any steps to obtain a change of place of trial.

The plaintiff brought an action in the circuit court against Neils 0. Frederiksen on certain promissory notes, and at the same time caused the respondent, John Johnston, to be summoned as a garnishee. The latter interposed a denial of liability, in the statutory form, and plaintiff took issue on his answer. Plaintiff recovered judgment against Frederiksen for over $111,000.

The facts are sufficiently stated in the opinion. They contended, inter alia, that the facts stated in the portion of the answer demurred to are pleaded as “ a second, separate, and further equitable defense and by way of counterclaim.” There can be no doubt that they constitute an equitable defense, and the demurrer was therefore improperly sustained.

National avenue runs east and west in the city of Milwaukee. It is crossed at right angles by avenues corm mencing at No. 1 in the east, and numbered consecutively westward. The defendant’s street railway runs east and west on said National avenue. On May 25,1888, the plaintiff took one of the defendant’s cars going west on said National avenue, at Third avenue.

This is a controversy as to whether the plaintiff bank is, or the Mil/maukee Worsted Mills and J. The judgment was rendered and entered upon a note and warrant of attorney executed by the defendants to the bank for |10,000, dated September 21, 1891. The note, by its terms, is payable “on demand and without grace after date.” The judgment was entered on the same September 21st, and execution immediately issued thereon.

REPORTED from the Circuit Court for Raeine County. An information was filed against the defendant, charging him with wilfully and unlawfully selling intoxicating liquors on Sunday, contraryto the statute. Sec. 1565, R. S. The defendant pleaded in abatement of the information that he had never had a preliminary examination, as provided by law, before any examining magistrate or officer, and had never waived his right thereto.

Action to recover for grading a city lot. The complaint alleged that in 1889 the plaintiffs graded defendant’s lot under an agreement with défendant to pay eighteen cents per cubic yard therefor, in April or May, 1890; that the number of yards of grading so done at defendant’s request was 2,834; that said grading was reasonably worth eighteen cents per cubic yard; that by reason of the premises the defendant became indebted to plaintiffs, June 1, 1890, in the sum of $515.12,…

This is an action to foreclose a bond and mortgage executed by the defendants to the plaintiff, a corporation organized under oh. 93, E. S., as a loan and building society, to receive payments and make loans to its members, and divide the profits, as provided by law.

Action to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant’s employees. The answer alleged contributory negligence on the part of the plaintiff. At the close of the testimony the court directed the jury to return a verdict in favor of the defendant. From the judgment entered On such verdict the plaintiff appeals. Other facts are stated in the opinion.

The plaintiffs were copartners, engaged in the business of purchasing and selling liquors at Louisville, Ky., and other points, under the firm name of T. H. Sherley & Co. The defendant resided in Milwaukee. Prior to' March 26, 1889, the defendant had been engaged in business as a traveling salesman for dealers in liquor, and had an established custom and about seventy-five old customers.

Action for money had and received. Plaintiff company manufactures glass -at Milwaukee.

The case was that the plaintiff, in his representative capacity as administrator of the estate of Winthrop W. Gil-man, deceased, on the 24th day of September, 1891, was a creditor of the Hudson River Boot & Shoe Manufacturing Company, a corporation created and existing under the general laws of the state of New York, in which state the plaintiff also resided, in the sum of $941.81, and commenced an action in the circuit court of Milwaukee county, in which Hubbard & Baker, of…

On January 11, 1892, plaintiff procured a judgment to be entered on a note and warrant of attorney executed by defendant, Brandt, and on the same day procured to be issued thereon an execution, by virtue of which the sheriff levied upon certain property of the judgment debtor.

The action was brought by Reuben M. Scott to recover upon certain coupons alleged to have been attached to certain municipal bonds issued by defendant town. The complaint set forth the issuance and delivery by the town to the Wisconsin Central Railroad Company of a number of municipal negotiable bonds to which the coupons in suit were attached, and alleged ownership of the coupons before maturity, demand, and nonpayment. The complaint did not allege ownership of the bonds.

On November 1, 1888, the defendant company, in consideration of $16 premium paid, issued its policy of insurance to one James Carey for the term of one year from November 1, 1888, to November 1, 1889, to the amount of $800, against loss or damage by fire to the following specified property, to wit, $675 on the cranberry boxes and barrels, $75 on three cranberry railroad cars, $50 on cranberry separator,— all stored in the warehouse therein described.

Action upon a policy of insurance against fire. The facts are sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. argued, among other things, that as a matter of fact the possession was changed and the change continued until the property was destroyed. It was never delivered back to the assured.

This action was commenced March 6, 1872, to recover against the defendant the sum of $21,383.41, alleged to be due from him to the plaintiff for work and labor done and materials furnished in grading and constructing a portion of the roadbed of the Wisconsin Central Railroad Company, under a written contract between the plaintiff and one Royal Hill and the defendant, it being alleged that Hill had sold out his interest in the contract to the plaintiff.

The defendant is a fraternal benefit society, and as such issues certificates of life insurance to its members, entitling them, while in good standing in the fraternity, to participate in its benefit fund, in a sum not exceeding an amount specified in the certificate. . The organization of the fraternity is a head camp, supposed to be the supreme head of the order, and numerous local camps.

This action was brought to recover damages for personal injuries received by the plaintiff at Allen’s Grove station on the defendant’s railway, in consequence, as it is alleged, of the negligence on the part of the defendant in not providing a proper platform, hand rails, lights, etc., at said station, the absence of which, it is charged, caused the plaintiff’s injuries.

It is alleged in the complaint that the defendants, who are attorneys at law, commenced several actions in the circuit court for Fond du Lao county, as attorneys for William Lockin, the plaintiff therein, each action being against a different defendant; that the plaintiffs, who are also attorneys at law, appeared in each of said actions as attorneys for the defendant therein, and conducted the defense of said actions, respectively, as such attorneys; that the defendant in…

E. W. Smith was a merchant in Oshkosh, and the garnishee, B. C. Bussell, was a banker at the same place.

Action for libel. The facts are stated in the opinion. To the point that the article was a privileged communication, they cited Odgers, Libel, 42; Wason v. Walter, L. R. 4 Q. B. 93; Foster v. Scrvpps, 39 Mich. 376; Folkard’s Starkie, Slander & L. secs. 269-270; Newell, Defamation, S. & L. 576, sec. 15.

The action was brought to recover the highest market value of pine timber cut by defendant on two forty-acre tracts of land in Florence county.

The appeal is from a judgment sustaining the traverse of an affidavit for an attachment and dissolving the attachment, and from an order denying a motion for a new trial. The facts are stated in the opinion.

The defendant is a corporation created and organized under the laws of Wisconsin, doing businessin Milwaukee, and engaged in the manufacture of Corliss engines, machinery for brewers and bottlers, and ice-making and refrigerating machinery.

An information was filed in the circuit court for Fond du Lac county against the plaintiff in error, charging him with the crime of manslaughter, in that he, the said Michael Doherty, “ did on the 3d day of January, A. D. 1891, at the city of Fond du Lac, in said county, wilfully and feloniously kill and slay one Michael Cahill, against the peace and dignity of the state of Wisconsin.” The plaintiff in error was tried upon such information, and the jury returned a verdict of…

The complaint alleges, in effect, that the plaintiff is the owner in fee of a strip of land of about 1,200 feet frontage on Chequamegon bay, on Lake Superior, and being between said bay and the Chicago, St. Paul, Minneapolis & Omaha Railroad Company, and bounded on the northeast by the section line between sections 5 and 6, and on the southwest by a line parallel to it, all being in Washburn, Bay-field county, Wis.; that the defendants are the owners in fee of a similar…

The action was brought to recover the value of plaintiff’s ice-liouses, ice, tools, etc-., destroyed by fire May 17, 1890. In February, 1890, the plaintiff constructed the three ice-houses which were burned, upon rented land on the shores of Lake Winnebago, near the city of Menasha. The houses were all joined together, and at about the same time the Jefferson Ice Company built two ice-houses west of and adjoining the plaintiff’s houses.

Rhyner was a cheese manufacturer, and in February, 1890, entered into a written contract with Garner, a farmer, by which Ganuer was to deliver at the factory, twice a day, from May 1 to November 1, 1890, the milk from fifteen cows, for which Rhyner was to pay certain prices, fixed by the contract; the milk to be “ sweet, fresh, healthy, and unadulterated.” Milk was delivered every day under the contract, and Rhyner in his complaint alleges that Garner violated his contract…

Action upon a policy of insurance against fire. The facts are sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiffs. They argued, among other things, that the only effect of the words “ loss, if any, payable to mortgagee as his interest may appear ” is to provide to whom the loss is payable, and such mortgagee does not thereby become a party to the contract.

January 1, 1891, the property was destroyed by fire. The complaint is in the usual form in such cases.

This action was brought to recover the penalty prescribed by sec. 1326, R. S., for obstructing a highway in the city of Oshkosh. Said section provides as follows: “ Whoever shall obstruct any highway . . ,. shall forfeit for every such offense a sum not exceeding twenty-five dollars.” The facts were undisputed.

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>■Action upon a policy of insurance against fire. The defendant appeals from a judgment in favor of the plaintiff.</p>

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

This action was commenced October 3, 1891, and the complaint alleges as a substantive cause of action certain slanderous words spoken in th¡e presence and hearing of Gr. L. Daharsh and other persons, September 25, 1891, at the city of Sheboygan.

The action was brought against Spensley, as maker, and MoCormioh, as guarantor, of two promissory notes.

This was an action to foreclose an equitable mortgage, the defendant having caused the lands described in the complaint to be conveyed to the plaintiff as security for the loan of $600, used by him in part payment of the purchase money of said premises, the plaintiff having executed at the same time an agreement to convey the same to the defendant by sufficient deed on the payment of said sum of $600 and interest as follows: $50 on or before January 1, 1887; $100 on or…

The plaintiff’s intestate, Joseph Woodard, commenced this action against the city of Boscobel to recover damages for injuries alleged to have been received by him by reason of breaking through a defective sidewalk in said city, which the city was under legal obligation to keep in repair. The plaintiff recovered judgment for $2,000 damages and costs, rendered pursuant to a special verdict, after a motion for a new trial on behalf of the city had been denied.

The facts are stated in the opinion. contended, inter alia, that the judgment was properly revived under sec. 3463, R. S. The term “ civil action ” in that section does not mean a new civil action in cases where, before the adoption of the statute, the remedy was obtained by a step taken in an existing action.

This is an action to foreclose an equitable mortgage upon certain premises described in plaintiffs’ complaint; and the facts are, in substance, that on July 20, 1870, Thomas Williams recovered against Bridget Fitzpatrick, widow and one of the administrators of Patrick Fitzpatrick, deceased, and his heirs at law therein named, judgment of foreclosure against the real estate in question, 'which was to be sold by the sheriff September 15, 1870.

This action was commenced on or about September 20, 1890. The complaint alleges, in effect, that November 5, 1888, the plaintiff purchased of the defendant and paid for a ticket ait Black River Falls, a station on the defendant road, to Millston, another station on said road, and entered one of the defendant’s regular passenger cars between 8 and 9 o’clock on the evening of that day, to go to said Millston, and that after reaching a distance a few miles from Black River…

Action by respondent town to recover moneys paid for the support of one Bore Larson and his children, alleged to be paupers having a legal settlement in the appellant town. The facts were not materially in dispute. It appeared on the trial that Bore Larson lived and had a legal settlement in the town of Bangor in May, 1880, at which time he removed with his family to the town of Ettriok.

This action was brought to enforce a mechanic’s lien for a balance of $769.58, claimed to be due the plaintiff from the defendant for building and equipping a certain factory, under a contract by which the w'hole amount to be paid therefor was $4,350, and for a balance due on certain extras furnished by plaintiff to defendant. The balance claimed to be due on the original contract ivas $209.04, and for extras, etc., $560.54.

This is au action to recover damages for personal injuries received by plaintiff by reason of falling into an opening in a sidewalk in defendant city. The sidewalk in question is in front of the store of D. A. Baldwin, on Water street, which is one of the public streets in that city. It is a plank sidewalk, ten feet in width, and was built by Mr. Baldwin in the summer of 1890. He inserted a hatchway therein which opened into an excavation under the sidewalk.

Ejectment for a strip of land, “part of the southeast quarter of the northwest quarter of section number 10, on the east side thereof, about five rods wide at the north end and about two rods wride at the south end, about thirty rods long, and being áll that portion of said forty-acre tract lying west of the east line thereof and east of a fence claimed by defendant to be .a line fence, but which is from two to five rods west of the true east line of said premises, and which…

In August, 1890, the plaintiff commenced an action against A. IT. Smiley, and garnished the defendant Giffin. On September 16, 1890, judgment was entered therein by default against said Smiley and in favor of the plaintiff for $466.32 damages and costs.

The facts are sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. argued, among other things, that mere slipperiness of the surface of a walk or highway, by reason of ice or snow accumulating thereon, is not such a defect as to render the city liable, where the ice or snow does not assume such a shape as to be an obstacle to travel.

The appellant was the assignee of Emma J. Hart in a voluntary assignment for the benefit of her creditors, and he was made defendant, as her garnishee, in an action brought by the respondents to recover against her $119.35. He answered, denying liability, and setting up the execution and delivery of the assignment, and claiming the property in question for the benefit of all the creditors of the assignor.

. This was an action by plaintiff, Raymond, to recover damages for personal injuries sustained by the upsetting of a buggy in which he was riding upon a mound of earth in a public street in the city of Sheboygan, May 13, 1885. The action was first commenced against the defendant Dorothea Keseberg and her husband, Joseph Keseberg, in June, 1887, and the city was impleaded as a defendant July, 1889.

<p> Contracts: Pleading: Amendment: New cause of action. </p> <p>The original complaint alleged that plaintiff sold and delivered to defendants certain quantities of milk at the agreed price of eighty cents per hundredweight; and an amended complaint slated that it was agreed between plaintiff and defendants that he should deliver milk at the price of the year before, which was eighty cents per hundredweight, and that he did deliver milk accordingly. The quantities alleged to have been delivered, and the balance claimed to be due thereon, were the same in each complaint. Held, that the amended complaint did not state a new or different cause of action.</p>

EEEOE to the Circuit Court for St. Croix County. The facts are sufficiently stated in the opinion. To the point that it was error to admit the testimony of plaintiff’s medical experts in so far as it was based upon subjective symptoms, they cited, besides cases cited in the opinion, 111. Cent.

<p>APPEAL from the Circuit Court for Wood County.</p> <p>The cause was submitted upon the briefs submitted upon the former appeal.</p>

On June 19, 1885, one Elizabeth A. ’Wayland, residing at Eau Claire and engaged in the millinery business, executed and delivered to the plaintiffs a chattel mortgage on all her stock of millinery goods, wares, and merchandise, furniture, and fixtures, to secure the payment of a debt due from her to them of $466.

This action was brought to recover $980.23, a balance claimed to be due plaintiff from defendant for cutting and hauling over 3,000,000 feet of pine logs during the winter of 1887 and 1888; also to recover for a small item of merchandise delivered to one Hassel at defendant’s request.

The defendant Charles F. Hall, being the owner of fifteen acres of land described, with the Pishcotaqua Hotel thereon and the furniture therein, situated on the shore of Lake Geneva, borrowed of one William A. McConnell $16,000, May 18, 1883, and gave him therefor two notes, each signed by himself and one Shepard, each payable five years after date, one for $6,000 and the other for $10,000, and to secure said notes the said Hall and wife at the same time executed and…

This is an action to recover the penalty prescribed by sec. 1331, R. S., for an alleged encroachment upon a highway in the town of Ludington, Eau Claire county. It has been once before this court upon appeal from a former judgment, and is reported in 62 Wis. 184, where it was decided that the highway was legally laid out, and that the evidence did not show an abandonment thereof.

Croix County. Counsel for the plaintiff states the facts, to the effect that the defendant’s railway runs southeasterly from the depot in New Richmond for a distance of about one hundred rods to a point fourteen rods north of a main traveled public highway running east and west; that said railway at that point curves and runs nearly east and- nearly parallel with said highway for a distance of about sixty-five rods, where it crossés the same at a very acute angle; that the…

<p> Taxation: Seizure of personal property: Replevin in justice's court. </p> <p>Sec. 3732, K, S. (providing that an action of replevin shall not he maintained before a justice of the peace for property “taken by virtue of any warrant for the collection of any tax, in pursuance of any statute of this state does not apply to a case in which the property seized belonged to a person not in privity either with the ■ owner of the property seized or the person erroneously named as owner in the tax list.</p>

<p> Criminal law and practice: Exceptions before judgment. </p> <p>Sec. 4120, R S. (providing for bringing criminal cases to the supreme court upon exceptions), extends only to exceptions taken at the term at which the conviction occurred.</p>

<p>REPORTED from the Municipal Oourt of Pooh County.</p> <p>The case is stated in the opinion.</p> <p>They cited Jensen v. State, 60 Wis. 577; Bishop, Stat. Crimes, see. 245; King v. Whitnash, 7 Barn. & C. 596; Peg. ex rel-. Watermen's Go. v. Peed, 28 Eng. L. & Eq. 133; State ex rel. Kennedy v. Mo-Garry, 21 Wis. 496; State v. Harrimcm, 75 Me. 562.</p>

<p> Credibility of witnesses: Instructions to jury: Bastardy. </p> <p>The credibility of witnesses being a question for the jury exclusively, it was error, in bastardy proceedings, to instruct them that the complaining witness and the defendant were not of equal credibility as witnesses because the latter had a greater pecuniary interest in the result.</p>

This action is for the purchase price of a negotiable check •or draft, owned by the plaintiff, drawn by A. E. Davis & Co. upon a Chicago bank, for $38.50, to the order of one Walters, and indorsed in blank by Walters. The complaint •also contained a count for money had and received, charging that the defendant had collected $38.50 upon the draft, and failed to pay the same to plaintiff. The defense was payment at the time the draft was handed to the bank.

John If. Kehoe, the plaintiff, and Mary Burns and Julia Kierncm, the defendants, together with their brother, Edward Kehoe, are the children and only heirs at law -of Michael Kehoe, who died intestate in April, 1891.

<p> Agency: Sale of lands: Violation of instructions by subagent: Waiver: Estoppel. </p> <p>Defendant, as agent for the sale of land at a certain price, employed plaintiff to find a purchaser, agreeing to pay him one third of the commissions. Plaintiff employed one M. to assist him. The land was sold by the owner himself, at the price fixed, to purchasers who had first applied to M., but from whom M. had asked a greater price. The owner paid to defendant the stipulated commission on the sale. Held that, the owner having by such payment waived the violation by M. of his instructions as to price, such waiver ‘ estops defendant from asserting that violation as a defense to this action by plaintiff for his share of the commission. Bussell v. An-drae, 79 Wis. 108, followed.</p>

Action for divorce. The grounds alleged are cruel and inhuman treatment of the plaintiff by her husband, the defendant, and failure on his part to support her. The complaint also alleges that the parties occupy twenty acres of land, in which the plaintiff has a life estate, and which has been and is cultivated and carried on mainly at her expense.

This action was commenced in 1888, by William Hood, as the general guardian of George W. Kelso, adjudged to be mentally diseased and incompetent, against the BanJc of Kaukmma and George E. Kelso, son of George W. Kelso, to set aside and cancel a note for the sum of $G,000, purporting to have been made by George W. Kelso October 10, 1885, payable to George F. Kelso or order six years after the date thereof, annual interest' at six per cent, per annum, and to be secured by a…

Action for the wrongful conversion of about six tons of straw,.alleged to have been the property of the plaintiff and to have been of the value of $75. The facts are stated in the opinion. The plaintiff appeals from a judgment of nonsuit. They argued, among other things, that if one cotenant in actual possession refuses to surrender'the half to his cotenant on demand, and denies his right to his share, this is a conversion, and trover may be maintained.

This action was commenced in justice’s court, November 24, 1891, by the personal service of the summons upon the defendants, Carlson, Halonen, and Anderson.

This is an action to recover for damages sustained by the plaintiff by reason of the alleged negligent, careless, and unskilful manner and defective plan upon which the streets and highways in the village of Crandon-had been constructed near plaintiff’s house, by which the surface water falling upon said streets and highways of the defendant town was diverted from its natural course towards the house and upon the premises of the plaintiff.

Plaintiff was a passenger on a train of cars run by the defendant company on its railway, and was expelled therefrom because of his alleged refusal to pay his fare. This action is to recover damages for such expulsion. The plaintiff purchased a ticket at the city of Superior for passage on defendant’s railway from that point to Pike Lake, a station on the same railway east of Superior. He went upon a passenger train and commenced his journey.

Action for personal injuries. The following facts appeared upon the trial by the evidence of plaintiff andjhis witnesses, and were substantially undisputed; The accident occurred on the defendant’s coal dock at West Superior. This is a long dock, extending out into the water so that vessels can come up on either side to be unloaded. ■ Down the center of the dock are two railroad tracks, upon which railroad cars are switched for loading.

This action was brought to recover damages for the nonperformance by defendant railway company of an alleged contract to transport certain logs for plaintiff.

Tbe facts are stated in the opinion. To the point that the complaint describes a, natural watercourse, they cited, besides cases cited in the opinion, West v. Taylor, 16 Oreg. 165; Montgomery v. Locke, 72 Cal. 75; Potter v. Howe, 141 Mass. 357; Palmer v. Wad-dell, 22 Kan. 352; Crawford v. Fambo, 44 Ohio St. 279; Byrne v. M. efe St. L. F. Go. 38 Minn. 212; Gould, Waters, sec. 263; Washburn, Easem.

Garnishment in aid of execution. Plaintiff’s assignor, Moritz Meissner, was a judgment creditor of the defendant Max Meissner, by judgment rendered September 13,1884, for $867.88, for goods sold and delivered between April 2 and August 12, 1884. The garnishees Ab'am and Joseph Bres-lauer and Bertha Meissner answered separately, denying any liability.

This is an appeal from an order granting the defendant leave to amend its answer in an action brought by the plaintiff against it to recover damages for injuries suffered by him while driving in a carriage along Gorham street in said city, the complaint charging that the defendant negligently -caused and permitted a heavy rope to be stretched across said street at a point near the intersection of said street with Carroll street, the rope being firmly and securely fastened to…

Robert Jones died July 17, 1883, leaving him surviving; no children, but a widow, Jane, a brother, William J. Jones; the appellant, and sisters and children of deceased sisters. He also left considerable real and personal property, and a last will and testament executed March 28,_ 1878, which was admitted to probate September 4, 1883. In said will he appointed his wife sole executrix. It contained, among others, the following provisions: “ Second.

This action is upon the official bond of the defendant Edward O. McFetridge, as state treasurer, during the term commencing on the first Monday in January, 1885, and ending on the first Monday in January, 1887, to which office he was duly elected at the general election in November, 1884. It is brought against him and all the surviving sureties in such bond, eleven in number. Three of the sureties deceased before the commencement of the action.

APPEALS from the Circuit Court for Dane County. The opinion states the facts. contended, inter alia, that the finding and judgment cannot logically rest on the opinion filed by the trial court. If the dealings of the treasurer With the public funds were unlawful, his acts were never adopted or ratified by the state so as to entitle it to stand as principal in the contract and demand the fruits thereof.

The action is ejectment to recover an undivided one half of thirteen forty-acre lots of land in Shawano county, and damages for the value of certain timber cut upon and removed therefrom by the defendant company. The plaintiffs are the minor children and only heirs at law of Julius T. Weld, who died intestate in July, 1888, seised of the lands claimed. The other undivided half thereof was owned by one E. S. Johnson.

Croix County. This action was brought by the plaintiff corporation against the defendant as indorser of two promissory notes made by one Robinson to the plaintiff. It is not disputed that the necessary steps were taken at the maturity of the notes to charge the defendant as indorser thereof.

Block 40 of the Fourth ward of the city of Oshkosh is bounded on the north by Merritt street, east by Jefferson avenue, south by Washington street, and west by Main street. Prior to the dates herein mentioned there was an alley running through said block north and south, and near the middle thereof, about eight feet wide. The relator owned two lots, 6 and 7, each sixty feet wide, in about the middle of the block, fronting on Jefferson' avenue.

During the whole time covered by the transactions involved in and material to the determination of this action, the plaintiff was, and still is, a foreign corporation, organized and existing, among other purposes, for the purpose of holding in trust the memorial funds of the religious society known as the “ Seventh Day Baptist Denomination,” and to expend the principal and interest accruing therefrom in accordance with the objects for which the fund was raised.

The facts are stated in the opinion. > - They contended, inter alia, that to warrant the court in directing a verdict there should be no doubt about the evidence. Directing a verdict should rest upon the same principle as directing a nonsuit, i. e., it should be done only when there is an entire want of evidence which on the most favorable construction tends to establish the case for the other party. Cutler v. HurTbut, 29 Wis. 152; Qrasse v. M., L. 8. <& W. 21.

<p>EEEOE to the Circuit Court for Ashland County.</p> <p>The facts are sufficiently stated in the opinion.</p>

CbrtioraRI to a Court Commissioner of Columbia County. This is a proceeding by certiorari to review the decision of O. L. Dering, court commissioner of Columbia county, in the matter of his refusal to discharge the petitioner, Joseph Garrabad, from custody, and remanding him to the imprisonment of which he complains.

The complaint alleges, in effect, that the defendant is a corporation, duly organized under the laws of Illinois, and doing business as such; that IN ovembér 17,1S91, the plaintiff’s intestate, Thomas Monahan, was in the employ of the defendant, and working under its direction in, upon, and about a building then being erected bj^ the defendant in Beloit; that a portion of such work being done by said Thomas consisted of hoisting and elevating, or aiding to-hoist and elevate,…

Garnishment in justice’s court in aid of execution. After numerous adjournments a judgment was rendered against the garnishee, December 15,1891, for $25 and costs.

The appellant commenced an action against the defendant Eobinson to recover the amount of three promissory notes, and at the same time summoned the defendant Hol-dredge, as garnishee of Eobinson, to reach the proceeds of the sale of some tobacco from Eobinson to Holdredge. The answer of the garnishee disclosed that the sum of $247.60 was due from him to Eobinson for the tobacco, or whoever owned it; that he had been notified by 8.

In February, 1891, the defendant ice company was engaged in cutting and removing into ice-houses the ice formed in Fowler lake, in Oconomowoc, and hired of plaintiff a span of horses for nse in that business. The parties agreed, that the horses should be driven by one Clifford, then in the service of the ice company in the same business.

<p> Appeal from county court: Allowance by circuit court after time: Presumptions. </p> <p>1. An order of the circuit court, made under sec. 4035, R. S., allowing an appeal from a county court by a party who omitted to take such appeal according to law, will be presumed to have been based on good and sufficient grounds, in the absence of a bill of exceptions showing the facts or grounds upon which it was based.</p> <p>2. A party alleging error in any case must show it; it will not be presumed.</p>

This is an action of slander. The complaint alleges, in effect, that July 9, 1890, at Oconomowoc, the defendant, in a certain discourse in the presence and hearing of certain other persons, maliciously spoke and published of and concerning the plaintiff words to the effect that she was licentious and indecently exposed her person; that July 14,1890, at Oconomowoc, in a certain other discourse in the presence and hearing of divers other persons, the defendant maliciously…

This is an action for the recovery of damages for personal injuries received by the plaintiff while in the employ of the defendants from a fall from a scaffold on the side of defendants’ ice-house, and caused by the negligence and improper direction of the defendants’ foreman, Meinski, under whose direction and with whom the plaintiff was working.

The .complaint alleges that the plaintiff purchased of defendant a certain stallion for a stock horse and breeding purposes, and paid him $500 therefor. It is then alleged that “the defendant represented the said horse to be fit and good for breeding purposes, and that the plaintiff believed and relied upon such representation so made to him by the defendant at the time of said purchase.” It is also alleged that the representation was false.

<p>APPEAL from the Circuit Court for Waulcesha County.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>cited Vossel v. Cole, 10 Mo. 634,47 Am. Dec. 136; 2 Boone, Code PL 407; Dodd v. Focht, 72 Iowa, 579; McDaniel v. Edwards, 7 Ired. Law, 408, 47 Am. Deo. 331; Lawson, B., E. & P. secs. 1113,1123; Boyd v. Byrd, 8 Blaokf. 113, 44 Am. Deo. 740; While v. Nellis, 31 N. T. 405; Dainv. Wycoff, 7 id. 191; Bartley v. Richtmyer, 4 id. 38; Lavery v. Orooke, 52 Wis. 612; NicJc-leson v. Stryker, 10 Johns. 115; Martin v. Payne, 9 id. 387; Applegate v. Ruble, 2 A. K. Marsh. (Ky.), 128; Bishop, Non-Cont. Law, secs. 375-380.</p>

On May 17, 1882, the six forty-acre tracts of land in question were sold for taxes. On April 30,1886, the county took tax deeds for said tracts on such sales, and on May 18, 1887, pursuant to a resolution of the county board, it conveyed said lands to the plaintiff by quitclaim deed, and the same was recorded. On August 15, 1888, the plaintiff commenced this action by service of summons alone, to quiet title and bar the defendants from any right to the premises.

Action to recover damages for personal injuries. The defendant is a corporation operating a large iron-smelting furnace at De Pere, Wis. On the 4th of May, 1891, plaintiff was a laborer in defendant’s employ in and about the furnace and yard, and had been such for three years. Defendant uses a large amount of charcoal in its business, which is brought into its yard in railroad cars, and unloaded by its employees into sheds by the side of the railroad track.

, as such, and rendered him services in framing and drawing plans and making estimates Torpand superintending'the erection in the city of Ash-land of, a building for defendant, known'as ‘:K.night’s Block.” .

<p>Contracts: Entirety: Part performance: Res adjudicata.</p> <p>1. A contract by tug-owners to tow a certain quantity of logs is an entirety, and part performance does not give them a right to recover thereon.</p> <p>8. In an action against the tug-owners for damages by reason of their neglect to perform such contract, they pleaded a full performance, but judgment went against them. Held, that it thereby became res adjudicata that they did not fully perform the contract on their part. If a partial performance, which they also pleaded, ought to have been considered for the purpose of lessening the plaintiffs’ damages, it will be presumed that it was so considered.</p> <p>3. But the judgment in that action is not a bar to a subsequent action by the tug-owners based on services rendered by them in connection with the logs, not embraced in the contract nor alleged in their answer in such former action. The fact, if such is the fact, that those services were rendered necessary by their breach of the contract involved in that action, is a matter of defense to be proved.</p>

This is an action of ejectment, commenced in January, 1891. The complaint is in the statutory form. The defense is under a tax title and the statutes of limitation. The lands in question were entered by Albert A. Little, May 20, 1856, and on June 10, 1858, he obtained a patent therefor. On September 12, 1866, he died intestate, leaving him surviving a widow, Margaret Little, and brothers and sisters, but no issue nor parents.

The action is for damages caused to plaintiff’s building and the furniture therein by an explosion occurring in the building January 11, 1892. The plaintiff claims the explosion was caused by illuminating gas from the pipes of the defendant company, which accumulated in plaintiff’s cellar by reason of the defective condition of said pipes laid bj^ the company.

Tbe plaintiff presented to tbe board of supervisors of Ashland county, for allowance, a claim of $380, for legal services rendered by Eublee A. Cole^ Esq., in a criminal prosecution against one McDonald, originating in that county. Tbe claim bad been theretofore duly assigned by Mr. Cole to tbe plaintiff. Tbe county board disallowed tbe claim, and tbe plaintiff thereupon appealed from such disallowance to the circuit court.

This was an action of ejectment commenced August 18, 1891, for the recovery of eighty acres of land, and the complaint is in the usual form.

A public highway between the cities of Merrill and Wau-sau, which has been used as such for thirty years, extends through the town of Pine River, the defendant. This action was brought by plaintiff against such town to recover damages for injuries to his person and property, which he alleges were caused by a defect in and the insufficiency of a portion of such highway therein. The highway in question is on the east side of Wisconsin river.

Prior to the town meeting in the town of Minooqua held April 5, 1892, said town was divided into two election precincts, the first being at the village of Minooqua, and the second at Manitowish. The order so dividing said town into two such precincts was in force at the time of said town meeting. At said town meeting the said relator and the defendant were both candidates for the office of chairman of the board of supervisors.