Volume 85 — Wisconsin Reports

Eiectment. The facts are sufficiently stated in the opin- ion. Defendants appeal from a judgment in favor of tbe plaintiff. They cited, besides cases cited in the opinion, Stebbins v. Merritt, 10 Cush. 27; Pegucmkeit Bridge v. Mathes, 7 N. H. 230; Tenney v. East Warren L. Go. 43 id. 343; Perry v. Price, 1 Mo. 664; Brin-ley v. Mann, 2 Cush. 337, 48 Am. Dec. 669; St. Philip's Church v. Zion Presb. Church, 23 S. 0. 297; 1 Beach, Priv..

Action upon a promissory note for $100, given by defendant to Henry D. Brooks, June 2,1881, and indorsed to plaintiff. The answer alleged that the note was given in consideration of the execution of a quitclaim deed by the payee of his interest in an eighty-acre tract of land, and that in fact the payee had no interest or title in the land, and that plaintiff purchased the note after due, with notice of the lack of consideration therefor.

January 26, 1891, Rankin, the petitioner, made a voluntary assignment for the benefit of his creditors of his property to Arthur Smith, who gave bond, and accepted the trust, and proceeded to perform the same.

EEEOE to the Circuit Court for Clark County. The plaintiff in error was tried for murder upon an information chax’ging that he “ did feloniously and of his malice aforethought kill and murder Henry Wright, against the peace,” etc. The jury returned a verdict finding him “ guilty as charged in the information,” whereupon they were discharged.

On January 4, 1893, the Wisconsin Water Company filed with the clerk of the circuit court for Waukesha county its verified petition, addressed to said court and the judge thereof, stating that said petitioner was duly incorporated and organized under and in pursuance of the laws of this state; that the business and purposes for which it was formed, and in which it was by law authorized to engage, was the construction and maintenance of waterworks and connections for the…

<p> Railroads: Injury to person at street crossing: Contributo7'y negligence: Court and jury. </p> <p>Plaintiff was injured at night on a sidewalk crossing defendant’s tracks. There were several tracks running north and south across the street, and plaintiff who was going west had stoppfed between the rails of the east track and was watching a train going south on the next track when he was struck by an engine coming from the south on the east track. The testimony tended to prove, among other things, that plaintiff did not know that he was on the track, but supposed the train going south was upon the east track, and therefore did not look to the south for an approaching train or engine ; that the sidewalk was planked on a level with the tops of the rails, and that a person might walk over the rails in the night without discovering them. Held, that the question of contributory negligence was one for the jury.</p>

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>This action was brought to obtain a judgment establishing that the legal title to a certain eighty, acre tract of land in the town of Greenfield, Milwaukee county, held by' the defendants Bedford B. and Edward O. Hopkins, is held by them in trust for the firm of H. Bosworth & Sons, of which they are members (the plaintiffs being the successors and representatives in interest of Pitch J. Bosworth, the other member of said firm), and for a partition thereof and a sale if necessary, etc., on. the ground stated in the complaint, that November 25, 1875, while Bedford B. Hopkins and Edwa/rd 0. Hopkins were members of said firm and had entire chai’ge and management of all its affairs and finances, and while the largest part of the capital of the firm contributed by said Bosworth remained in said firm, and while said Bedford B. Hopkins was the confidential adviser of said Bosworth, they secretly, and without the knowledge or consent of said Bosworth, used the funds of said co-partnership in the purchase of said land, and thereafter, July 30, 1878, took title thereto in their own names, and have ever since held the same and claim to be the sole owners thereof. It was also charged in the complaint, among other things, that all of the payments for the said tract of land were made out of partnership funds, were secret, and made without the knowledge or consent of Bosworth, while he was in Europe, and in violation of the duties and obligations of the said Hopkins brothers as managing partners, and of the articles of copartnership, and that such use of said partnership funds constituted said purchase of said real estate a purchase for the use and benefit of the said partnership.</p> <p>It appears from the pleadings, and is not disputed by either party, that Fitch J. Bosworth, since deceased, March 1, 1866, entered into copartnership with the defendants the Hopkins brothers, in the business of wholesale druggists, at Milwaukee, under the firm name of H. Bosworth & Sons, and in the year 1869 Mr. Bosworth retired from active business, and left Milwaukee and went to Europe. The partnership articles were reduced to writing and executed in 1872, by which Mr. Bosworth was not to devote any time to the business, but the entire business of the firm was to be conducted and managed by the defendants the Hopkins brothers. Bosworth was to have up to March 1,1868, two thirds of the net profits, and from March 1, 1868, to March 1, 1871, three fifths thereof, and from March 1, 1871, to March 1, 1876, one half thereof, and the balance of the net profits was to belong to said Hopkins brothers (Bedford B. and Edward G.). The partnership continued to exist after March 1, 1876, on the same terms, and except that it was then agreed that thereafter- said Bosworth should have two: fifths of the net profits, and the Hopkins brothers jointly three fifths, until it was dissolved by the death of said Bosworth, February 15, 1885. Mr. Bosworth had contributed almost the entire capital of the firm. In October, 1812, his share amounted to $193,999.18, and that of the Hopkins brothers to but $15,000, and, as so agreed, the said Bosworth thereafter took no part whatever in the-management of the business of the firm, but its affairs were wholly left to and managed by the Hopkins brothers. From October, 1869, up to the time of his death, Mr. Bos-worth had other large property interests, consisting of bonds, shares, stocks, and other personal property and valuable real estate, and from that date to the time of said Bos-worth’s death said Bedford B. Hopkins acted as his confidential adviser and agent in reference to his interests outside of the firm, and Bosworth continued to place the utmost reliance in the business ability and integrity of his partners to the time of his death. After leaving Milwaukee in 1869 he never returned, except for two days in 1814, but lived up to the time of his death almost continuously in Europe.</p> <p>It appeared that by the last will and testament of Bos-worth all bis real estate and interests therein wére devised to his widow, one of the plaintiffs, and to his son, Howard F. Bosworth, the other plaintiff, and to his daughter, Emma, one third to each, and that the daughter, Emma, died in 1890, intestate and unmarried, leaving no children, by which her interest in said realty vested in her mother and brother, the plaintiffs in this suit, >as her heirs at law. On March 1, 1885, after the death of Bosworth, it appeared from an inventory and balancing of accounts that the assets of the firm after the payment of its debts, and charging to profit and loss all bad debts, amounted and belonged: To said Bosworth’s estate, $151,303.53; to Bedford B. Hop-lewis, $38,102.61; and to Edward G. Iloplcins, $42,296.18; and the plaintiff. Howard F. Bosworth purchased .of his mother, Frwnees Bosworth, and his sister, Emma Bosworth, their two thirds in and to his father’s interest in the firm, and October 6, 1885, he entered into copartnership with the Ih.opJeins brothers, dating from March 1,1885, each contributing his share in the capital and assets of the former firm as above stated, and this copartnership continued until March 1, 1890, since which date its affairs have been in course of liquidation. Soon after, the plaintiffs caused an examination of the books and affairs of said business to be made by an expert accountant, and in June, 1891, as it is alleged in the complaint, it was learned that the defendants the Hopl&ms brothers had used the funds of the said old copartnership in the purchase of the real estate in question and for the payment of taxes, interest on purchase-money, and for improvements thereon, in amounts stated in the complaint; the purchase having been made November 25, 1875, of Mrs. Alvira Smith, for $16,000, only $1,000 of which was paid down, by check of said firm drawn against its bank account, and the balance was paid when the deed of conveyance was made, July 20, 1878.</p> <p>The defendants in their answer admitted that they made the purchase and received a conveyance of the lands in question at the time charged, and alleged, in substance, that at the time the net profits of said copartnership business to which they were entitled, pursuant to the partnership agreement, over and above their $15,000 of capital, was about $85,000, and that in making payment for the land, and on account of it, they from time to time made use, to a small degree and proportion, of their share of the profits of said business, drawing against the same, and charging the sums drawn on the books of the firm, the said sums bearing a very small proportion to the net profits to which they were then entitled; that there was no restraint on their right to so draw, and that their partner, Bosworth, -at all times knew and assented that they, or either of them, might at any time draw, for purposes of his or their own. use any sums within their discretion; and that said sums so drawn^were drawn in good faith, within their lawful right, and without any attempt at secrecy or concealment.</p> <p>The court found facts, in addition to those already stated, in substance and effect, that the entire care and management of the copartnership business was upon said Hofkms brothers, and that after the year 1869 said Fitch J. Bos-worth gave no attention whatever to the same, except that reports and balance sheets prepared by the bookkeepers were regularly and from time to time sent to him; that after that date Bedford B. JETqphms attended to and gave a large portion of his time, care, and attention to managing the individual interests and property of said Fitch J. Bosworth and Frcmoes Bosworth, his wife, one of the plaintiffs, in the state of "Wisconsin; that, at the time of the.making of the contract for the purchase of said lands, said Hofkins brothers together had credits with said firm of U. Bosworth & Sons amounting to about $110,000, being about $95,000 in excess of their capital at the time of the commencement of said copartnership; that the use of said money in making said purchase was not in violation of the articles of copartnership; that from the beginning thereof to the date of purchase said Fitch J. Bosworth had drawn largely from time to time from his capital in said copart-nership for private investment and speculation, and that it was understood between said parties that the defendants might also, to a reasonable extent and in their discretion, draw upon their interest in said copartnership for private investment; that the use of said sum of $1,000 (the first payment) by said defendants was no violation of their duties as partners in said firm, and that they took said •money in good faith, for a private investment which they had a right to make; that when the lands were deeded to said JZopMns brothers, in making payments therefor and on account of the same said Hophins brothers did from time to time make use, to a moderate degree, of their share of the profits and their interest in said business, drawing against the same, and charging the sums drawn on the books of the business; that the sums so made use of were, a very small proportion of the net profits to which they were then and there entitled, and that the use of said moneys was not in violation of any agreement or stipulation with the said Bosworth, but that they had a right to draw the same, and said moneys were so used in good faith by said Nqpicins brothers for their said private investment ; that the defendants the Hopkins brothers entered into possession of said lands at the time of the contract of purchase in 1875, and obtained a deed therefor, July 26,, 1878; that from the time they so entered into possession to the commencement of this action they were in the actual possession and occupation of said land, through their tenants, claiming title thereto under a land contract for it and deed of conveyance, exclusive of any other right, and that said possession on their part was open and notorious- and adverse to any and all claims of any person whatsoever; that said purchase of said lands was in good faith and free from fraud or any intention to defraud, and that they did not at any time conceal, or attempt to conceal, said transaction. It was found as a conclusion of law that said complaint should be dismissed upon the merits, with costs against the plaintiffs, and judgment was entered accordingly, from which the plaintiffs appealed. Such other facts as are material are stated in the opinion.</p>

<p>APPEAL from the Circuit Court for Waukesha, County.</p> <p>Action to construe the will of Ward Witham, deceased. Plaintiff is a granddaughter of deceased, and named as a legatee of $500 in the will. She sets forth in her complaint that doubt and uncertainty has arisen as to the meaning and effect of the fifth clause of the will, and prays for a construction of the same. The appellant, as .executor, answered, admitting the .general allegations of the complaint as to the relationship of the parties, the making and probate of the will, and that doubt and uncertainty had arisen as to the construction of the fifth paragraph thereof and the duties of the executor thereunder, alleging that plaintiff is not interested in the construction of the same in any way, and also prayed for a construction of said paragraph and that the same be declared legal and valid. The defendant Lorenzo Witham answered separately, alleging that said fifth paragraph was void for uncertainty, and that the sum bequeathed thereby became a part of the residuary estate. The other defendants, who are the remaining legatees named in the will, did not appear.</p> <p>It appeared that the testator died January 22,1888, leaving a will, which was probated February 23, 1888, and which, after certain bequests, among which was a bequest of $500 to the plaintiff, his granddaughter, contained the following provision: “ I give, devise, and bequeath to my executors the sum of five thousand dollars, in trust nevertheless for following uses and purposes: Said sum is by my said executors to be invested in some good interest-bearing securities, and the net yearly income thereof shall be used and applied by my said executors to the support, maintenance, and education, or aiding in the support, maintenance, and education of such indigent orphan children under the age of fourteen years, in the said county of Rock and state of Wisconsin, as in the judgment of my said executors may be most needy and deserving. Said income of said five thousand dollars to be used and applied as above until the year nineteen hundred, and then the said sum of five thousand dollars is to be given to such indigent orphan children, in Rock county, Wisconsin, as my executors shall think most needy and deserving.” There was also a residuary clause covering all the rest, residue, and remainder of his estate, real and personal, but plaintiff was in no event a beneficiary under the residuary clause.</p> <p>Marie Ripley and N. N. Jackman were named in the will as executors. Before probate of1 the will, Jackman duly declined to act as executor, and Ripley accepted and qualified alone, and is still acting as executor. The plaintiff was paid her bequest of $500 on becoming twenty-one years of age, which was after the commencement of. this action.</p> <p>Upon these facts the circuit court concluded (1) that, plaintiff was a proper party to bring this action; (2) that the execution of the trusts of the will by Ripley alone is legal and valid; (3) that the fifth paragraph of the will is void for indefiniteness and uncertainty; (4) that the $5,000 named in said fifth paragraph becomes a part of the residuary estate; (5) that the taxable costs and disbursements •of all parties, and $50 to the attorney of each party appearing-, be paid out of the estate and from said $5,000 fund. The appellant excepted to the first, third, fourth, and fifth conclusions of law, and judgment was entered in accordance with the findings. Ripley, as executor, appeals from that part of the judgment which adjudges the fifth clause of the will void and that the amount named therein becomes part of the residuary estate; also from that part which adjudges plaintiff a proper party to bring the action, and awards her costs.</p>

<p>APPEAL from the Circuit Court for Oneida County.</p> <p>Action to recover a tax levied upon certain pine logs. The facts are sufficiently stated in the opinion. The plaintiff appeals from a judgment in favor of the defendants.</p>

<p>APPEAL from the Circuit Court for Racine County.</p> <p>Action to recover a penalty for obstructing Wisconsin street in the plaintiff city. The facts are stated in the opinion. The testimony relating to the location of fences and structures on Wisconsin street not fronting on defendant’s premises, and all testimony as to the existence of stakes and the pointing out of them by Mr. Vilas and others as., the original stakes, and all hearsay testimony of what Mr.. Vilas and others had said relating to such stakes or of surveys, was admitted subject to the objection of the plaintiffs The defendant appeals from a judgment in favor of the * plaintiff.</p> <p>argued, among other-things, that the acts of early settlers are controlling in the - ascertainment of the location of the line actually run and! marked by the original surveyor. Racine v. J. R Case-Plow Co. 56 Wis. 539; Miner v. Brader, 65 id. 537-542;: State v. Schwin, id. 207; Nys v. Biemeret, 44 id.. 104;. Koenigs u. Jung, 73 id. 178; Vroman v. Dewey, 23 id; 530;. Marsh v. Mitchell, 25 id. 706; Fleischf resser v. Schmidt, 41' id. 223; Hrouska v. Janke, 66 id. 252; Orena v. Santa-Bat'--bara, 91 Cal. 621; Vandusen v. Shimley, 22 Oreg. 64; Coy ■ v. Miller, 31 Neb. 348; Jones v. Poundstone, 102: Mo. 240;-Diehl v. Zanger, 39 Mich. 601-604; Beavhien v. Kellogg, 69* id. 333. The evidence of declarations and statements of.'( the original surveyor, Yilas, and reputation as to location of surveyed lines and authenticity of stakes, was admissible. Adams v. Blodgett, 47 N. H. 219, 90 Am. Dec. 569; Wood v. Willard, 37 Yt. 377, 86 Am. Dec. 716; Tyrone M. & M. Oo. v. Gross, 128 Pa. St. 636.</p> <p>contended, inter alia, that parol evidence as to the existence of marks, stakes, or monuments of the survey not mentioned or referred to on the plat was not admissible. Bruckner's Lessee v. Lawrence, 1 Doug. (Mich.), 19; Gove v. White, 20 Wis. 432-433; Hedge v. Sims, 29 Ind. 574; Hough v. Horn, 4 Dev. & B. (N. C. Law), 228; Overton v. Davisson, 1 Grat. 211; Waugh v. Waugh, 28 N. Y. 94; Yanish v. Tarbox, 49 Minn. 268; Drew v. Swift, 46 N. Y. 204, 207, 209; Nys v. Biemeret, 44 Wis. 109. The testimony as to declarations made by Mr. Yilas was incompetent. 1 Greenl. Ev. sec. 145; 3 Wash-burn, Real Prop. 427; Wood v. Foster, 8 Allen, 24.</p>

<p>APPEAL from the Superior Court of Milwaukee County.</p> <p>The action is to foreclose a mortgage executed by tbe defendant corporation, the Milwaukee Power dk Lighting Company, to the plaintiff. The other defendants are the officers of that corporation, and the defendant Earles is also a subsequent mortgagee of the premises covered by plaintiff’s mortgage. There is no controversy as to the validity of plaintiff’s mortgage, the amount due thereon, or the right of plaintiff to a foreclosure thereof. The only controversy in the case arises upon a covenant in the mortgage that, in case of foreclosure thereof, if the mortgage debt, as determined by the judgment of foreclosure, shall not be fully paid in ten days after the date of the judgment, the mortgaged premises may, at the expiration of such ten- days, “ be sold, the same as though the full year for redemption provided by law had completely expired, and the said year for redemption is hereby expressly waived.” The mortgage also contains a warrant of attorney, irrevocable, authorizing any attorney of a court of record to enter the appearance of. the mortgagor corporation in any action brought to foreclose the mortgage, and to stipulate and consent therein on behalf of such mortgagor that the mortgaged property might be sold- at any time after the expiration of ten days from the date of the judgment, in accordance with the covenant to that effect in the mortgage. Such a stipulation was. filed in this action.</p> <p>The superior court held the above covenant and warrant of attorney void, and gave judgment of foreclosure in the usual form. Plaintiff appeals from that portion of the judgment which, in effept, prohibits a sale of the mortgaged premises until after the expiration of one year from the date of the judgment.</p>

<p> 'Elections: Ballots deposited in wrong box: Evidence. </p> <p>1. Ballots deposited in the wrong box by, fault of the inspectors of election should nevertheless be counted. ,</p> <p>2. It being proved that a package of ballots had been tampered with after the election, it became of no value as evidence.</p>

<p> Land contract: Surrender of vendee’s interest: Estoppel. </p> <p>The vendee in a land contract, who had paid $100 thereon, stated to the vendor that he did not want the land and had “ got to lose ” the $100. The vendor replied merely that he (the vendor) “ must see about it,” and took no action and did not change his position in any way in reliance upon the refusal of the vendee to take the land, until nearly two years later, when he demanded that the vendee, who had had the contract recorded, execute a quitclaim deed of the land. The vendee refused. Held, that there had been no effectual relinquishment or surrender by the vendee of his interest in the land, and that he was not estopped to claim that the contract was still in force.</p>

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>This is an action to recover damages for personal injuries received by plaintiff when alighting from the cars of the defendant railway company in the city of Milwaukee, which injury it is alleged was caused by the negligence of the railway company and its employees. The case was here on a former appeal, and the circumstances of the injury will be found sufficiently stated in 82 Wis. 246. On that appeal a judgment for plaintiff for $3,000 was reversed for error, and a new trial awarded. The case has again been tried, and the trial resulted in a general verdict for plaintiff for $1,000 damages. Plaintiff moved to set aside the verdict for alleged errors in certain rulings of the court on the trial, and for inadequacy of damages. The court denied the motion, and judgment was entered for plaintiff pursuant to the verdict. Plaintiff appeals from the judgment.</p>

Action to restrain the removal of certain buildings from premises owned by the plaintiff and leased to the defendant. The facts are sufficiently stated in the opinion. The plaintiff appeals from a judgment in favor of the defendant. contended, inter alia, that Martin and wife, by excepting the improvements from their assignment and vacating the premises, surrendered the same, which thereby became a part of the realty.

The complaint alleges, in effect, that during all the time from April 15,1891, to May 3,1892, the defendant held the offices of one of tbe superintendents of tbe poor of tbe county of Milwaukee, and superintendent of tbe county hospital of said county; that during all said time tbe plaintiff was lawfully an inmate of said hospital; that be was afflicted with a disease affecting his legs; that during all of said time it was the duty of said defendant, as such superintendent,…

Action for labor and materials furnished. The defendants had entered into two separate contracts with St. Amelianus Orphan Asylum and Eev. William Grutza to put in steam-heating apparatus in two certain buildings. Afterwards defendants employed plaintiff to do the work and furnish, the materials under both contracts for one half ■of the net profits.

This action is to recover-therefor. It was commenced in justice’s court,-and appealed to the superior court. The defense is that the wort was done fora corporation'known as the Cement Land Company, and not for the defendant. The defendant admits that he engaged plaintiff to do the -surveying, but testified that he informed him at the time that the work was to be done for and on account of the Cement Land Company and not the defendant.

Action in equity for the cancellation and redelivery of a deed of land. Plaintiff was the wife of Ernest Frede. She owned lot 28, block 17, Ludington’s subdivision, Milwaukee. Her husband owned lot 27 in the same subdivision. On the 15th of September, 1890, Ernest Frede contracted with defendant Pfiugradt to build á house according to certain plans on lot 27, and on the 1st of December following convey the lot, with the house completed, to Pfiugradt.

Robert Gunyon and Fanny G-unyon, his wife, were childless, and much advanced in years. The former made his will February 10, 1892, without making any provision whatever by it in favor of his wife, and died four days thereafter.

This was an action in equity for an injunction restraining defendants from obstructing with logs, timbers, trees, etc., an alleged public highway in the plaintiff town, and directing the removal of such obstructions already placed therein.

The plaintiff corporation owns a theatre building in Milwaukee, known as the Academy of Music. In such building there is a store used as a saloon, which the plaintiff leased to one Tony Yollert for three years from September 15, 1890, at a rental of $1,000 for the first, $1,100 for the second, and $1,200 for the third, year, payable quarterly in advance.

<p>APPEAL from the Superior Court of Milwtmkee County.</p> <p>Action for deceit. The facts are sufficiently stated in the opinion.</p>

Prior to 1892 Third street between Harmon and Walnut streets in Milwaukee had been macadamized. In May, June, and the fore part of July, 1892, the requisite steps had been taken to authorize the removal of from nine to eleven inches of said macadam, and to repave the same with cedar blocks.

This is an action to recover back usurious interest. In July, 1887, defendant lived at Reedsburg, but was doing business in Milwaukee under the name of the Milwaukee Mortgage Loan Company, the business being in charge of one Ereuheiser. Plaintiff applied at the Milwaukee office for a loan of $250, July 22,1887, and signed an application, the material parts of which are as follows: “ Milwaukee, Wis., July 22,1887. “May Dayton and Geo.

This is an appeal from an order sustaining the demurrer of the respondent, Blewett, to the plaintiff’s complaint, which is in the nature of a supplemental complaint upon the foot of the judgment recovered by said Blewett and Patrick Gaynor against the plaintiff herein, James Gaynor, March 31, 1890, for $8,061.45 damages and $53.05 costs, for moneys earned by the plaintiffs in the original action under a contract in respect to a logging business with the appellant, James…

This is an appeal from the judgment of the circuit court affirming the order of the county court for Rock county admitting to probate an instrument propounded as the last will of Susan R. Pitt, deceased, made August 3,1891.

The plaintiffs, Ecmnsey and McGuckin, partners under the name and style of the Milwaukee District Telegraph Company, brought their action against the Holmes Electric Protective Gomjjwwj to recover damages for the breach of a contract made between the parties, by which the latter company agreed to solicit orders for the use of its protective system, furnish all apparatus and materials pertaining thereto, right of way for wires excepted, and the labor necessary to put it in…

The case is stated in the opinion. They contended, inter alia, that if ice or snow is suffered to remain upon a sidewalk in such uneven and rounded form that a person cannot walk over it,1 using due care, without danger of falling, it constitutes a defect for which the city is liable. Cook v. Milwaukee, 24 Wis. 270 ; Paulson v. Pelican,.79 id. 448. Whether the sidewalk was defective or not was a question for the jury.

The complaint alleges, in effect, the incorporation and location of the defendant; that May 20, 1892, the plaintiff was the owner of a stallion of the value of $1,000, subject to a chattel mortgage thereon to one Connors for $75, and then insured in the Mutual Reserve Live-Stock Insurance Company of Marshall, Mich., for the sum of $200; that on said day the plaintiff applied to the defendant for an insurance policy against loss by fire upen said horse, which the defendant…

Action upon a promissory note. .The facts are sufficiently stated in the opinion. The defendant Gra/oes appeals from a judgment in favor of the plaintiff.

This was a garnishee proceeding in justice’s court against S. L. James in aid of an execution upon a judgment in favor of the McCormick Harvesting Machine Company against Mantrice Reed. Judgment was rendered in the garnishee proceedings against the garnishee, January 5, 1892, for $178.46 and costs.

Reposted from the Circuit Court for Sheboygan County. The information charges, in effect, that June 20, 1892, at the county of Sheboygan, in this state, the defendant, Michael Mueller, did, with force and arms, in and upon one Emma Mueller, a female of the age of twelve years or more, to wit, of the age of fifteen years, violently and feloniously make an assault, and her, the said Emma Mueller, then and. there, violently and against her will, feloniously did ravish and…

Crom County. During the times in question Gillespie & Harper were partners, doing business at Stillwater, Minn., and engaged in the manufacture of lumber at Glenmont, in Wisconsin, being on the St. Croix river. The defendants, Jefferson and Kasson, were partners, doing business as lumber dealers at St. Paul, Minn.

Action in the nature of a creditors’ bill to set aside a conveyance of eighty acres of land from the defendant Carl Krueger to Mmnah, his wife, as in fraud of creditors.

This action was commenced in February, 1892. For'a first cause of action the complaint alleges that December 19, 1891, the defendants, under the firm name of Anderson dfc Kennedy, entered into an agreement in writing with the plaintiff, whereby the latter agreed, among other things, in effect, to end-stamp, haul, and deliver in good, straight rollways lying lengthwise with the stream on the Black River in Douglas county, all the logs cut by the said Anderson dé Kennedy…

This action was brought by the plaintiffs to recover against the defendant railway company the damages alleged to have been sustained by them May 13,1887, by the destruction by fire of their lumber mill, piles of lumber, staves, and other personal property in and about the same, which was communicated thereto by and through the negligence of the defendant in and about the use and management of its locomotive engine and cars in and upon a certain side tract upon which said…

This is an action of ejectment, commenced November 24, 1891. The complaint is in the statutory form.

The facts are sufficiently stated in the opinion. To review a judgment in favor of the defendants, the plaintiffs sued out a writ of error.

Plaintiff is the owner in fee of the east half, and the defendant of the west half, of a certain quarter section of land. This is an action in equity to restrain the defendant from maintaining a ditch dug by him on his own land, through which the waters gathered on his land are discharged upon and injure the land of plaintiff, and to recover damages for past injury caused thereby.

It appears from the record, and is in effect found, that April 12, 1892, the T. C. Shove Banking Company made a voluntary assignment for the benefit of its creditors to the defendant, Piening; that at the time of making said assignment the said bank was indebted to the plaintiffs upon an open and running account for deposits therein in the sum of $4,198.96; that the bank also held in trust, for the purpose of paying a premium on insurance for the plaintiffs, the sum of…

Action to foreclose a land contract and remove the lien of an attachment levied upon the land. The substance of the complaint is stated in Ramash v, Scheuer, 81 Wis. 269, where this court affirmed an order overruling Scheuer1s demurrer to the complaint.

This action was brought to recover the purchase price of •a water wheel and fixtures, and for the amount of which the plaintiff had a verdict and judgment, and the defendant appealed. The price of the wheel was $700, and for that amount notes were given by the defendant. The complaint counts, first, on the sale and delivery of the wheel; second, on the notes for the price; and, third, upon the sale and delivery of certain fixtures for $84.

The facts are stated in the opinion. The defendant Laack appeals from a judgment in favor of the plaintiff. To the point that the power of the court was properly exercised in ordering a reformation of plaintiff’s deed, they cited, besides cases cited in the opinion, Bates v. Bates, 56 Mich. 405; Gregg v. Hamilton, 12 Kan. 333; Dane v. Derber, 28 Wis. 216; Lundgreen v. Station, 73 id. 659; Green Bay da M. 0. Go. v. Hewitt, 62 id. 316; Brinkman v. Jones, 44 id. 498.

On December II, 1872, Henry Goebel, husband of the plaintiff Bosine, and father of the plaintiff Ernestine Thieme, died, leaving a will executed by him April 11, 1872.

Action to recover the value of hay and grass destroyed by fire. A sufficient statement of the facts is' as follows: Ho-ricon marsh covers an area of about fifteen miles in' .length by three miles in width, in Dodge county, and is used only for the raising of hay. The season of 1891 being dry, a number of farmers in the vicinity leased portions of the marsh for the purpose of cutting the hay thereon.

The facts are stated in the opinion. by E. H. Ellis. To the point that the award was excessive, they cited Williams v. Williams, 29 Wis. 517, 525; Moul v. Moul, 30 id. 205; 2 Bishop, Mar., Div. & Sep. secs. 963, 1013, 1027, 1042; Williams v. Williams, 36 Wis. 367; Thomas v. Thomas, 41 id. 229; Goad v. Goad, 40 id. 392.

The facts are sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. to the point that sec. 1294 applies to a fart of a highway, cited Witter v. JDamitz., 81 Wis. 385; Horey v. Haver sir am:, 124 N. Y. 213.

The complaint alleges, in effect, that the plaintiffs were at the times therein stated copartners engaged in a general livery business; that February 25,1891, there was a public highway in the defendant town, therein described; that at the date named said highway was greatly and wholly insufficient, defective, and out of repair in many respects, especially in that there was a natural stream of water which ran along in and on the west edge of said highway at the place…

Action for the construction of the will of Charles Tabor, and to set aside a deed of certain real estate of said deceased, made b¶ Elizabeth Tabor, his widow, to the defendant John Tabor. Charles Tabor died March 14, 1886, testate, leaving a widow, the defendant Elizabeth, and six adult children, four of whom are plaintiffs in this- action, and two of whom, John and Lulce, with their mother, are defendants.

Action to recover damages for injuries sustained July 11, 1891, by the plaintiff while traveling on a certain highway of the defendant town, alleged to be insufficient and out of ¡repair, in that at the point in question it was in a “ general ■bad condition, and some loose stones were lying in the traveled track of the said highway, which passes the Floyd school-house in said town, at a point therein about one hundred yards east of the residence of Mrs. Freeman, and…

This is an action on a promissory note given by the defendants to the plaintiff for the sum of $200, the defendant Ward having signed the same as surety. The note matured January 13, 1883. Two payments of interest were indorsed on it, the last dated January 10, 1884, and there was an indorsement of payment of $79.35, May 2, 1885.

The case made by the complaint is substantially as follows: The plaintiff intermarried with one Joshua Fawcett, the ancestor of the defendants) in 1867. She had separate estate. In 1868 she gave her.husband the money with which to purchase a certain forty-acre lot of land in Grant county, and directed him to take the conveyance thereof in her name. Her husband thereupon purchased the land with her money, but took the conveyance thereof in his own name.

On November 22, 1887,.an order of the circuit court in this action in favor of plaintiff was reversed by this court on the appeal of defendant, and the cause remanded with directions to award a new trial. 70 Wis. 207. On January 27, 1888, the defendant paid the clerk’s fees in this court, and procured the record to be transmitted to, and filed in, the circuit court.

The facts are sufficiently stated in the opinion. They contended, inter alia, that conceding that the plaintiff is a corporation de facto, yet it 'cannot maintain this action. No corporation de facto can exercise a franchise which rests purely in law. The right to levy toll for floating logs in a navigable stream is clearly a privilege which can be given only by law. It is a privilege which in the nature of things can only exist de jure.

<p>APPEAL from tbe Circuit Court for La Crosse County.</p> <p>The amended complaint alleges, in effect, that for a long time prior to March 6, 1890, the sidewalk described had been in a dangerous and defective condition, and that several weeks prior to said date, in patching up said sidewalk, a board or plank had been placed lengthwise and along the top of the outside stringer, to nail the planks of said side-wTalk to; that said plank so laid lengthwise and along said stringer projected some inches outside of said stringer and outside of the ends of the sidewalk planks, and in the exposed portion thereof there were left several old, rusty nails sticking out, with their points upward, upon which persons stepping along or upon said sidewalk were liable to tread; that such sidewalk and said plank, with said nails sticking up therefrom, Jiad been carelessly and negligently suffered and permitted by the officers of said town to remain in said dangerous and defective condition for a long time prior to said March 6, 1890; that in the evening of said day, while said plank and sidewalk were in such dangerous and defective condition, the plaintiff’s intestate, Minnie E. Pittenger, was lawfully and carefully passing along and crossing said street, and in stepping upon said sidewalk from the street at the point aforesaid, without any fault or negligence upon her part, stepped her foot upon one of the nails so sticking up out of said plank, which nail penetrated and passed through her shoe and into her foot, from the result of which she died March 21, 1890; that at the time of such injury and death said Minnie E. was a minor daughter of this plaintiff, and about seventeen or eighteen years of age, and unmarried, and resided with him; that she was strong and in good health, and that the plaintiff, her father, was and is old, in poor health and indigent circumstances, and was largely dependent upon said Minnie for support and for care of his household; that May 23, 1890, the plaintiff was appointed administrator of the estate of said Minnie; that July 9, 1890, notice was given, as required by statute, and a claim was filed in the office of the town clerk, to be laid before the board of audit, but that the defendant had neglected and refused to pay said claim. Judgment is demanded for $5,000.</p> <p>The answer admits the existence of said public street, and denies all allegations of the complaint as to the condition thereof and the manner of the alleged accident or any negligence on the part of the defendant or any of its officers, or of any actual or constructive notice of the existence of the defect alleged.</p> <p>At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at $1,000. From the judgment entered upon said verdict the defendant appeals.</p>

<p>(1) Sale of chattels: Conditional or absolute sale? (2) Mortgages: Priority.</p> <p>1. Construing together (1) an order for agricultural machinery which contemplates an absolute sale and provides for the execution of a mortgage thereon; (2, notes given for the purchase price, which provide that the title to the machinery shall not pass until they are paid in full, but which also authorize the vendee to take possession of the machinery and sell it and apply the proceeds upon the notes; (3) a chattel mortgage of the machinery to secure the notes, which asserts and warrants that the title is in the vendee, contains full provisions for foreclosure and sale in case of default, and covenants that the vendee will pay any deficiency; and (4) a real-estate mortgage also given to secure the notes,— the transaction is held not to have been a conditional sale simply, but an absolute sale with a mortgage back for security; and after the seizure and sale of the machinery by the vendor under the chattel mortgage the debt of the vendee remained for the balance due, and the real-estate mortgage could be foreclosed therefor.</p> <p>2. At the time of the execution of a mortgage of land, the mortgagor’s only interest therein was an equitable title to an undivided sixth thereof, the equitable title to the other five sixths and the legal title to the whole being in his brother. Afterwards the brother sold his intei’est to the mortgagor and conveyed to him the legal title, taking back a mortgage for a part of the purchase price. Held, that such purchase-money mortgage is, as to five sixths of the land, prior to the mortgage first given.</p>

<p>APPEAL from the Circuit Court for La Crosse County.</p> <p>The defendant Hogan was summoned by the plaintiff in this action as garnishee of Donald A. McDonald and Charles M. McDonald, partners, etc., and as being indebted to them and having possession and control of property belonging to them. Judgment was rendered against the principal debtors, and the sole question was whether the defendant Hogan was liable to the plaintiff as garnishee upon the following facts, namely:</p> <p>On the 14th of October, 1891, the defendants McDonald Bros, mortgaged lumber then in their possession, of the value of $11,000, to the garnishee, Hogan, to secure a debt of $10,000 and interest, and at the time it was agreed between them that the mortgage should not be put upon the record except on failure of McDonald Bros, to pay the notes it was given to secure at their maturity, thirty and sixty days from said date. The indebtedness to the plaintiff upon which its judgment was rendered against McDonald Bros, was a loan of $5,000, obtained by them from the plaintiff November 23, 1891, in good faith, and upon the faith,, strength, and representation that their property was not incumbered. On the 17th day of December, 1891, Hogam, filed his mortgage and took possession of the property covered by it, and has ever since held -it. The plaintiff had no notice of the existence of the mortgage when it made the loan to McDonald Bros., nor until it was so filed, and the mortgage was kept from the record to prevent any injury to the credit of McDonald Bros.</p> <p>The court, as a conclusion of law upon these facts, held that the mortgage to the defendant Hogan of October 14, 1891, was void as to the plaintiff, and gave judgment charging the latter as garnishee for the lumber -so taken by him under his mortgage. From a bill of exceptions it appears that McDonald Bros, executed to Geo. H. Eay a general assignment, which was filed in the ofiice of the clerk of the circuit court of La Crosse county on the 17th day of December, 1891, four hours after the garnishee defendant so filed his mortgage and took possession of the lumber, and he requested the court to rule that the action should be brought only by the assignee, or in his name, for the benefit of creditors, and that the present, action should be dismissed, but the court declined to so rule, and exception was taken by Hogan. The assignment was given in evidence, but no finding was made in respect, to it, and no exception was taken to the finding. The garnishee appealed from the judgment.</p> <p>They contended, inter alia, that it is only on the ground of equitable estoppel that the mortgage is invalid as against this plaintiff, and it is the only creditor in this position. The assignee could not maintain an action for and in the interest of one creditor alone, and if be could the remedy given to him is not exclusive. Brown v. Brabb, 67 Mich. 17; Powers v. C. H. Hamilton Paper Go. 60 Wis. 23; Vernon v. Upson, id. 418; Willis v. Bremner, id. 622.</p>

The action is upon the following contract in writing, ■signed by the parties: “La Crosse, April 22d, 1889. Contract between Brown dk Boynton, partners, of the first part, and Joseph, Whitworth, party of the second part. (1) Party ■of the second part hereby agrees to work-for party of the first part six months from April 22d, 1889, ten hours per day at blacksmith work, boarding himself meanwhile.

The complaint alleges, in effect, that Adolph Belka died intestate, October 22, 1889; that the plaintiff was, upon due application, appointed administrator of his estate, December 3, 1889, and qualified as such; that October. 22, 1889, there was a certain public highway in the defendant town leading from Stevens Point first in a northwesterly direction and then in a westerly direction, as described, and which highway had been duly laid out and traveled >nd worked for more…

<p>APPEAL from the Circuit .Court for Dane County.</p> <p>The plaintiff, as receiver of the goods and property of the defendant M. Kaiser, appointed in proceedings supplementary to execution on a judgment for $564.67, recovered against him by one Talcott, August 21, 1885, in the circuit court for Dane county, brings this action in the nature of a creditor’s suit against the said M. Kaiser, Jennie Kaiser, his wife, Joseph and Julius Kaiser, his sons, and Samuel Spiegel,— to reach and subject to the payment of said judgment certain real estate, the legal title to which is vested in his said wife, and a stock of goods and business of a store in Madison called “ The Pair,” carried on in her name, but in reality, as alleged, for and upon the credit of said judgment debtor, which stock of goods had been sold and transferred to his said two sons and his son-in-law; and it was alleged that said business had been carried on by said judgment debtor, pretending to act as his wife’s agent, under some arrangement with his wife, for. the purpose of cheating and defrauding his creditors, including said Tal-cott; that she did not in good faith engage in business with her separate property, and did not in good faith employ her said husband to conduct such business for her as her agent; that she had never actively participated in the conduct of the business,'and had little or no knowledge concerning it; that her husband had in all respects conducted it as his own, with the single exception that in doing so he had pretended to act as the agent of his wife. It was charged that the real estate held by the wife had been purchased with the proceeds of such business, which, it was alleged, had been large and profitable, and that said stock of goods and business had been fraudulently transferred to the said sons and son-in-law, who had previously been employed therein as clerks, with intent to defraud the creditors of the said judgment debtor. It was charged that the business and stock in trade of the said judgment debtor with which he had carried on business in Chicago until October, 1883, had been sold out upon judgments by confession,— one in favor of his wife, on a note of $1,500 she held against him, and one in favor of one Altheimer, his brother-in-law,— and had been purchased by one Wolf, as assignee of such judgments, in fact for the benefit of the judgment debtor; that the said notes were given, judgments entered, and sales made, for the purpose of covering up the property of the judgment debtor, and to prevent creditors from levying on it, and as a part of a scheme for defrauding his creditors, and that said Talcott was one of his creditors at the time; that these goods, and others purchased on his credit, were sent to Madison, and with them the business of “ The Fair ” was opened and carried on in the name of his wife.</p> <p>The answers of the judgment debtor and his wife insist that the notes to her and Samuel Altheimer were given for an actual indebtedness for those sums, respectively, and deny that they were given or used for any fraudulent or improper purpose, and deny generally and specifically all the charges of fraud stated in the complaint, and allege that the purchase of said goods was for the benefit of said Wolf, and that they were afterwards sold to the wife of the judgment debtor and placed in the store where, ever since November, 1883, or thereabouts, she had carried on business. It is denied that any goods therefor were bought on the credit of her husband, and stated that all the goods had been purchased in the name and for the benefit of his wife, and the business carried on entirely with her means and for her benefit; that the connection of the judgment. debtor therewith was solely as her agent, and not for his benefit in any way, he working for her upon a regular salary ; that the stock of goods in the Fair store did not exceed in value the sum of $5,000, and that the real estate which stood in the name of the wife was her home, and was heavily mortgaged; that the facts relative to said business and to the manner in which judgments in favor of the wife and Samuel Altheimer were obtained were fully investigated and known to Talcott in 1883, and the six years statute of limitations was relied upon as a bar; that it was agreed that the goods purchased at said sale should be managed and sold out by Wolf for the common profit!, of him and Altheimer, and it was finally sold to the wife of the judgment debtor, she giving her note for what it. had cost him; that the stock in trade and business was sold out by her February 15, 1892, for $5,368.23. The answers denied all fraud in said sale.</p> <p>The defendants Joseph Kaiser and Samuel Spiegel set up the circumstances of their purchase, averring that it was for a valuable consideration and in good faith, without any, intent to defraud the creditors of said Kaiser.</p> <p>The examination of the judgment debtor on supplemental proceedings was given in evidence, and also of his wife, in relation to the allegations of the complaint, from which it appeared that the judgment debtor was in business in Chicago from 1861 to 1883, and was in the wholesale business in 1880, doing a large business; that his merchandise was sold at sheriff’s sale, and he did not buy in any, nor did his wife; that he owed about $14,000, and he had it reduced to about $6,000; that Marshall Field & Co. closed him up; that the business in Madison had been her business, and he managed it for her, buying most all of the goods on credit ; that the bank accounts were kept in his wife’s name; that he was her employee and never put in any money there or into the property that belonged to his wife; that the money that built.the houses came out of the business; that the $1,500 on which she obtained her judgment had been owing her since 1881, and was for a present made to her by her uncles when she was married. The wife of the judgment debtor also testified on the trial to the effect that she purchased Mr. Altheimer’s interest in the goods sold at Chicago, and gave him a note for $900. Simon Wolf also testified in regard to the transaction quite fully, and- an agreement was produced in evidence between him and Mrs. Kaiser, dated October 15, 1883, in regard to the sale and disposition of said goods, by which Mayer Kaiser, the judgment debtor, was to be erigaged as a clerk during a sale thereof at a salary of $25 a week. It appeared that Wolf received his full pay of Mrs. Kaiser December 29, 1884. Kaiser testified that when the business was continued in Madison he took $5 a week for his own use and support; that there was no agreement about salary;. that the $25 a week was never paid him. Evidence was given to show that the debt to Altheimer was paid in 1885. ' Mercantile agency reports were put in evidence regarding the financial standing of J. Kaiser, J. Kaiser & Go., and Kaiser Bros. & Spiegel, covering a period from October 6, 1884, to February 24, 1892, in which the stock was variously stated at from $10,000 to $35,000, and the amount of yearly sales at $50,000 and upwards, net annual gains $5,000 and upwards, and in which it was stated that the business -was conducted by Mayer Kaiser. Kaiser made some of the reports for his wife.</p> <p>The finding of the circuit court as to the bonafides of the business conducted in'the name of Jennie Kaiser, the wife of the judgment debtor, was to the effect that at the time of their marriage she received $1,500, marriage portion. That her husband was in business in Chicago, and lost considerable property in the great fire, after which she loaned her husband part of her marriage portion, which was used in business. That he wTas owing her $1,500 on account of said loa.ns, October 1,1883, and the judgment was given on a note for that money. That he was indebted to Marshall Yield & Co. in about $3,600, and to S. Altheimer in about $4,700, and to various other creditors. That Field & Co. recovered two judgments against him for their debt, upon which executions were issued and levied on his property, together with an execution on the judgment in favor of his wife. That the latter judgment wras for a full consideration and was not obtained for the purpose of hindering or delaying the creditors of the defendant M. Kaiser. That more than six years had passed since judgment upon the note in favor of Talcott' was rendered, and that the facts concerning its entry were fully known to him or his agent immediately after the entry thereof. That the judgment in favor of Altheimer was for a valid, existing indebtedness, and an execution in like manner was levied upon Kaiser’s property subsequent to the judgments and executions of Field & Co. and Jennie Kaiser. That the agent of Talcott was present at the sale, which was fairly conducted at public auction by the sheriff of Cook county. That Wolf purchased and became the owner of the judgment of Field & Co. That there was no surplus after said execution sales. Wolf, Mrs. Kaiser, and Altheimer entered into an agree-ment in respect to purchasing goods at the sale, to the effect that whatever goods were purchased should be put together and sold in the name of S. Wolf & Co., and that when Wolf should receive back his money, expenses, etc., fixed at $4,379.95, his interest in them should cease; that the expense of selling the goods should be deducted from the money received; and that Kaiser should be employed as a clerk at a salary of $25 a week. Wolf bid in at the sheriff’s sale goods enough to cover the judgments of Field & Co. owned by him, and as agent for Mrs. Kaiser he bid in enough of the stock to cover the amount of her judgment, and Alt-heimer bid in enough to amount to the sum of $897.85. That the goods were removed into a store in Chicago, Mrs. Kaiser .purchasing from Altheimer the goods he had bought, for which she gave her individual note. That the business was continued in Chicago under the name of S. Wolf & Co., Kaiser working under the contract at $25 a week, and he and his wife and family all lived in the same building. That the goods were removed to Madison, and the Fair store opened and operated by S. Wolf &• Co. under the contract until December 29,1884, when Wolf had about $500 still in the business, and he then sold out to the defendant Jennie Kaiser, took her note for the amount, which was afterwards paid by her, as was also the $900 to Altheimer. That the business and all the property from that time on were owned by the defendant Jennie Kaiser, and were managed by the defendant-Mayer Kaiser as her agent. That the children of the parties worked in the store, and all lived together. That M. Kaiser was thereafter employed by the defendant Jennie at a salary of $5 a week, and they were all supported out of the proceeds of the business, which seems to have been reasonably profitable. That on the 18th of February, 1892, an inventory was taken, at which time the amount of stock was $5,368.23, and there were outstanding mercantile accounts against it to the amount of $2,741.63. That the defendant Jennie Kaiser then sold the stock of goods to Kaiser Bros. (ft Spiegel for $5,368.23, receiving $2,100 in cash from them, their note for $500, and they assuming the mercantile indebtedness. That t'he sale was made in good faith and for a full consideration, and not for the purpose of hindering or delaying creditors of the said judgment debtor or any other person. That the sum paid by Kaiser Bros. & Spiegel was all the stock was worth, and they had no notice or information whatever that he had any interest or right therein.'</p> <p>As a conclusion of law the court found that the defendant Jennie Kaiser was the absolute owner of the property up to the time of the sale to Kaiser Bros. (ft Spiegel,, when they became and now are the owners thereof, and that none of the property could be subjected to the debts of said judgment debtor. The action was dismissed, with costs against the receiver as such, but no personal judgment was given against him, from which he appealed.</p> <p>They contended, inter alia, that the judgment entered in favor of the defendant Jennie Kaiser and against the defendant M. Kaiser on October 5,1883, was invalid as against the then existing creditors of M. Kaiser (1) because it was procured to be entered with the intent, on the part of both husband and wife, of hindering, delaying, and defrauding the husband’s creditors; and (2) because a large part of said judgment was for money of the wife which, according to the undisputed evidence, had been for years employed by the husband in his business, without promise of repayment to his wife, and upon the strength of which he bad obtained credit'. Humes v. Scruggs, 94 U. S. 22; Knowlton v. Mish, 17 Fed. Eep. 198; Lyon v. Zimmer, 30 id. 401; Wortman v. Price, 47 Ill.. 22; Wilson v. Loomis, 55 id. 352; Patton v. Cates, 67 id. 164; Hocleett v. Bailey, 86 id. 74. See, also, Quill v. Hanny, 1 Bradw. (Ill.), 490;* Miller v. Payne, 4 id. 112; Goon v. Rigden, 4 Colo. 275; Hriggs Banlc v. Norwood, 50 Ark. 42; Clark v. Rosen-krans, 31 N. J. Eq. 665; Luers v. Brunjes, 34 id. 19; Besson v. Evelamd, 26 id. 468; Lyne v. Bank of Kentucky, 5 J. J”. Marsh. 545; In re Jones, 6 Biss. 68; Levi v. Rothsehild, 69 Md. 348; Hopkins ro. Joyce, 78 Wis. 443; Bump, Fraud. Conv. (3d ed.), 811; Biggs v. McCullough, 69 Md. 592; Jenkins v. Middleton, .68 id. 540; Kuhn v. Siansfield, 28 id. 210; Edelenv. Edelen, 11 id. 415; Bolide v. Lawless, 33 N. J. Eq. 412; Gardner v. Gardner, 1 Gif. 126; Moyer v. Adams, 9 Biss. 390; Nolen's Appeal, 23 Pa. St. 37; Steadman v. Wilbur, 7 R. I. 481; Jacobs v. Hosier, 113 Mass. 157. The business at Madison was established and conducted by M. Kaiser, pretending to act as agent for his wife, with the intent and purpose of hindering, delaying, and defrauding his creditors. Where a husband is in debt and insolvent, arrangements by which the wife acquires and afterwards manages by his agency property as her separate estate, afford some ground for suspecting that they are adopted as a cover to disguise the substantial ownership of the husband, and to defraud his creditors. Knapp v. Smith, 27 N. Y. 277; Dapton v. Walsh, 47 Wis. 113; Ladd v. Newell, 34 Minn. 107; Laib v. Brandenburg, 34 id. 367; Leoncvrd v. ' Green, id. 137; Horneffer v. Duress, 13 Wis. 603; Lachmcm v. Martin, 139 Ill. 450; Baker v. Lynch, 75 Wis. 630; Brick-ley v. Walker, 68 id'. 573; Fox v. Zimmerman, 77 id. 418; Gettelman v. Gitz, 78 id. 441-2. The creditors of M. Kaiser are entitled to receive payment of their claims out of the property accumulated, beyond the present needs of his family, by the skill, industry and ability of the said Kaiser in managing and conducting the business at Madison as the pretended agent of his wife. As to theNght of a husband to donate his services to his wife in conducting a general trade or mercantile business for her, see Workman v. Price, 47 Ill. 22; Wilson v. Loomis, 55 id. 352; Guill v. Hanny, 1 Bradw. (Ill.), 490; Card v. Robinson, 2 id. 19; Hallowell v. Horter, 35 Pa. St. 315; Glidden v. Taylor, 16 Obio St. 509; Feller v. Alden, 23 Wis. 301; Patterson v. Campbell, 9 Ala. 933; Tripp v. Childs, 14 Barb. 85; Hamilton v. Zimmet*-man, 5 Sneed, 39; Penn v. Whitehead, 17 Gratt. 503. , • ■</p> <p>They argued, among other things, that the creditors of M. Kaiser have no claim upon the profits of the business because of his services in conducting it. The great weight of authority is to the effect that a husband has a right to give his whole time to his wife’s business without compensation, and his creditors cannot complain. 2 Bishop, Mar. Worn. sec. 453; Kelly, Oont. Mar. Worn.'149, 150; Webster v. Hildreth, 33 Yt. 457; White v. Hildreth, 32 id. 265; Spering v. Laughlin, 113 Pa. St. 209-; Cooper v. Ham, 49 Ind. 394; Lsham v. Shafer, 60 Barb. 317; Ranlcin v. West, 25 Mich. 195; Penn v. Whitehead, 12 Gratt. 74; Keller v. Mayer, 55 Ga. 406; Ashurst v. Given, 5 Watts & S. 323; Seeds v. Kahler, 76 Pa. St. 263; Gage v. Daxlchy, 34 N. Y. 297; Preño v. Hewitt, 55 Yt. 367; Moore v. Lampion, 80 Ind. 301; Corning v. Fowler, 24 Iowa, 585; Sexton v. Martin, 37 Ill. App. 538; Rush v. Vought, 55 Pa. St. 437; Dayton v. Walsh, 47 Wis: 113; Miller v. Peele, 18 W. Ya. 75; Eilers v. Conradt, 39 Minn. 242.</p>

Under ch. 56, Laws of 1852 (subch. 10, sec. 18), and ch. 184, Laws of 1874 (subch. 7, sec. 8), the city of Milwaiokee is liable for damages resulting to the owners of lots injured in consequence of a change of grade of any street in that city, if such original grade was established since February 20,-1852, and the street actually graded thereto.

<p>ERROR to the Circuit Court for Ashlcmd County.</p> <p>The facts are stated in the 'opinion.</p> <p>They argued, among other things, that the prisoner must be present throughout a trial for felony, and especially for homicide; that this presence must appear by the record; that its failure so to appear by record is reversible error, reached by a writ of error, and a violation of art. XIY, Amend. Const, of U. S., by depriving the accused of liberty without due process of law. Sec.u4693, R. S.; art. YI, Amend. Const, of U. S.; sec. I-, art. I, Const, of Wis.; Whart. Crim. PI. & Pr. (9th ed.), §§ 540, 545, 549; 1 Bish. Grim. Proc. (3d ed.), § 1353; Dougherty v. Oom.m. 69 Past. 286; Prine v. Comm. 18 id. 103; Hooker v. Comm. 13 G-rat. 763; Dyson v. State, 26 Miss. 362; Rolls v. State, 52 ■Miss. 391; Bearden v. State, 44 Ark. 331; Smith v. People, 8 Colo. 457; State v. Schoenxoald, 31 Mo. 147; State v. Johnson, 35 La. Ann. 208; State v. .Jones, 61 Mo. 232; Shapoon-mash v. IT. S. 1 Wash. T. 188; Lovett v. State, 29 Ela. 356; Chit. Crim. Law, *414; State v. Buchner, 25 Mo. 167; State v. Braunschtoeig, 36 id. 397; State v. Matthexos, 20 id. 55; .State v. Cross, 27 id. 3-32; People v. Perkins, 1 Wend. 91; Clark v. State, 4 Humph. 254; Andrexos v. State, 2 Sneed,, 550; Scaggs v. State, 8 Smedes & M. 722; Hoptv. People,. 110 U. S. 574; Ball v. U. S. 140 id. 118,129-133; Sylvester • v. State, 71 Ala. 17; State v. Creer, 22 W. Ya. 800; Ander- - son v. State, 3 Pin. 367; Sasse v. State, 68 Wis. 530. No > presumption will be indulged in favor of an arraignment,. and if the record fails to show it the verdict will be set' aside. Douglass v. State, 3 Wis. 820; Davis v. State, 38 id.. 487. The permanent record ought to show a constitutional trial. The court has no jurisdiction to try for felony an ■ absent man, and the presumptions indulged in civil suits. do not apply. In a criminal trial defendant must expressly - relinquish a right before he can be understood to waive it.. Comm. v. Andrews, 3 Mass. 126. And such relinquishment: must-be in the manner provided by law in any right.as. to ■ jury trial. Biggs v. Lloyd, 70 Cal. 447.</p> <p>Oh. 164, Laws of 1883, providing that in case of a disagreement of the jury on the special issue of insanity the accused shall be put to his trial on the issue of not guilty, and “ the question of insanity involved in such special issue shall be tried and determined by the jury with the plea of not guilty,” is in violation of art. YI, Amend. Const, of U. S., and sec. 7, art. J, Const, of Wis., since it deprives the accused of his right to a trial by an impartial jury. Where the issue of insanity arises it is commonly, it is in this case substantially, the sole defense. In case of a disagreement every juror is on his oath committed upon it one way or the other. They have each of them not only entertained but, under oath, expressed a determined opinion for or against the accused on the main, and in this case the sole, issue on trial. And under the act, of 1883, they are called upon, not to pass upon a new issue, as under sec. 4697, R. S., before it was amended by the act of 1883, but to proceed at once to the trial and determination of the same issue. Kindred with the objection made here is the principle that a grand juror having found an indictment cannot sit on the petit jury for its trial. Oates’ Case, 10 How. St. Tr. 1079-1081; 1 Bishop, Crim. Proc. (2d ed.), §§ 911, 912, note 4; Golledge's Case, 8 How. St. Tr. 588; Hawkins’ P. C. (Leach’s ed.), bk. 2, ch. 43, § 27; R. S. sec. 4688; Bennett v. State, 24 Wis. 57; Boy v. Percival, 1 Sid. 243; Bice v. State, 16 Ind. 298; Stewart v. State, 15 Ohio St. 155. So a petit juror on a former trial is not competent to serve on the second hearing, even in a civil case. Edmondson v. Wallace, 20 Ga. 660; 1 Bishop, Grim. Proc. (2d ed.), § 913; Ga/rthwaite v. Tatum, 21 Ark. 336; 1 Co. Litt. 1575 (c); Argent v. Darrell, 2 Salk. 648; Weelcs v. Medler, 20 Kan. 57. In many states such former service expressly excludes a juror by statute. Texas R. S.sec. 636; N. Y. Grim. Code, 1881, sec. 377; Iowa R. S. 1860, sec. 4771; State v. Sheeley, 15 Iowa, 404; State v. Leicht, 17 id. 28; Thomp. & M. Juries, 195-6. See, also, Dunn v. State, 7 Tex. App. 607; Willis v. State, 9 id. 297. The question whether a juror is impartial is a judicial one, and the courts will not be limited by a legislative enactment in determining such a question. Block v. State, 100 Ind. 357; Greenfield v. People, 74 N. Y. 277. In the present case the disqualification complained of in the jurors arose long after the time when the accused had a right of challenge. State v. Gameron, 2 Pin. 490; Thomp. & M. Juries, § 265, and cases cited. Where the jurors cease to be partial, or declare or exhibit such prejudice as prevents a proper determination' by them, at a stage of the trial subsequent to the time for challenging, it is due cause for a new trial. State v. Carter, 25 Weekly Law Bull. 17; Martin v. State, 25 Ga. 494. The accused could not waive a trial by jury (State v. Loekwood, 43 Wis. 403), and it would be strange if his constitutional right to a trial by an impartial jury could be held waived in any way, and least of all by the implication of silence, there being no1 express or statutory waiver. See Biggs v. Lloyd, 70 Cal. 447; Home Ins. Go. v. Security Ins. Go. 23 Wis. 174. If the act of 1883 did not violate specific requirements of the constitution it ought to be held void because it violates fundamental principles of law and justice. Durkee v. Janes-ville, 28 Wis. 464; Hughes v. Pond du Lac, 73 id. 382; Johnson v. Waukesha Go. 64 id. 289. A trial for murder is still a trial for “ a capital offense,” and the accused has the game rights to a strict enforcement of laws designed for his protection. Sasse v. State, 68 Wis. 537.</p> <p>They contended, inter alia, that when the courts have held that the appearance of the prisoner in court during the trial must be shown affirmatively by the record, they did not mean to hold that such appearance must be shown from the records kept in a particular book, but from the entire records which furnish a complete history of the case; and it is apparent from • sec. 742, E. S., that the legislature intended that the several books which clerks of circuit courts are required to keep shall constitute a complete record of all matters, proceedings, and cases tried in such courts. See Peterson v. State, 45 Wis. 535; Abbott, Law Diet. 388; Schirmer v. People, S3 Ill. 276. At common law the prisoner was not entitled to counsel to assist in his defense, and this furnished a valid reason for the common-law courts to hold that the prisoner’s presence during every stage of the trial must be shown affirmatively by the records. But the reasons for adhering strictly to this rule are not so cogent now and under constitutions like ours. It is not of so much importance under our laws that the defendant be present as that his counsel be. In Hill v. State, 17 Wis. 675, this court criticised the case of Prim v. Oomm. 18 Pa. St. 103, cited by plaintiff in error, and indicated that it was not prepared to adopt the decision of the Pennsylvania court in cases like this. Conceding that the prisoner must be present in court at trial, verdict, and sentence, it does not follow that his presence at such times must appear affirmatively by the record. In this case the record shows that he was duly arraigned, was present in court during the trial of the special issue and also during the trial of the main issue, and that he was also present during the calling and testing of jurors on both issues. No motion in arrest of judgment was made so that errors appearing in the record could be first considered by the trial court. In the motion for a new trial no mention is made of the absence of the plaintiff in error during any stage of the trial. He was defended by able counsel who knew what his rights were, and who would undoubtedly have made timely objection to his absence. The inference is irresistible that he was in court during the time occupied by the trial, and was not absent at any time when the law required Mm to be present. See Barrett v. State, 1 Wis. 175; .Gris-wold v. State, 24 id. 145, 146. The presence of the prisoner may be inferred from the record, and need not be explicitly stated at each stage of the procedure. Lawrence v. Comm. 30 Grat. 845. The presumption is that the court performed its duty, and that the prisoner was present. Dodge v. People, 4 Neb. 220; State v. Craton, 6 Ired. Law, 164; Sweeden v. State, 19 Ark. 205; Stephens v. People, 4 Parker, Grim. Rep. 396, 19 N. Y. 594; SeMrmer v. People, 33 Ill. 276. When the record shows that the defendant in a criminal action was present at the commencement and conclusion of a trial, in the absenqe of any affirmative showing to the contrary it will be presumed that he was present during the trial and at the rendition of the verdict. State v. Wood, 17 Iowa, 18; Rhodes v. State, 23 Ind. 24; Jeffries v. Comm. 12 Allen, 146.</p>

The facts are sufficiently stated in the opinion. argued, among other things, that the bonds, upon their face, import an indebtedness of the city. Fuller v. Chicago, 89 Ill. 282-293; La/w v. People, 81 id. 386; Rodman v. Munson, 13 Barb. 63, 188 (see 7 N. T. 47); Newell v. People, 7 N. Y. 9. It is the meaning of the charter of the city of Superior that bonds of the character of the proposed bonds shall be indebtedness of the city.

This case was before this court on an appeal by the plaintiff from a judgment rendered against him on the merits (77 Wis. 124), which was reversed with directions to the circuit court, in its discretion, to grant a new trial upon cause shown of all the issues instead of rendering judgment for the plaintiff for the amount of his claim to which he was entitled upon the facts as they then appeared.

Eeplevin. The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. To the point that the only remedy of the plaintiff was in equity, counsel for the appellant cited Lath/ropv.

The complaint alleges, in effect, as a first cause of action, that in November, 1890, the plaintiff established himself in business in the city of 'Milwaukee, and engaged in purchasing milk, cream, and buttermilk from parties in that city and vicinity and in the territory and country adjoining the city and county of Milwaukee, including one C. B. Lichtke, residing in the vicinity of Lannon, .Waukesha county, at wholesale, and retailing the same to his patrons in the city of…

Action on contract. May 4, 1888, defendant, Tarbell, obtained two judgments of $9,000 and $31,000, respectively, against one Burton, and on the same day execution was issued to the sheriff of Milwaukee county upon the smaller judgment. May 10, 1888, the plaintiff’s intestate, Henry M. Mygatt. obtained a judgment against said Burton for over $11,000, and issued execution thereon to the said sheriff.

This is an action in the nature of a creditors’ suit under the statute (S. & B. Ann. Stats, sec. 3029), after the return of an execution on a judgment unsatisfied, brought in the circuit court for Fond du Lac county by the plaintiff as assignee of a judgment rendered in favor of Edmund Blew-ett and Patriek Gaynor against James Gaynor in the circuit court for Winnebago county, March 31, 1890, for $8,114.50, damages and costs.

This case was before this court on a former appeal (77 Wis. 470), where the claims of the plaintiff are stated.

Replevin for cattle. In January, 1889, plaintiff owned a farm near Darlington, La Fayette county, and had thereon thirty-eight head of cattle, together with, hay and feed.

, This action was brought against the defendants as sureties on the bond of one Parmalee as administrator de bonis non of the estate of «Martin Phelan, deceased, to recover the sum of one twenty-fifth part of $7,530.10, being the sum of $301.20, ordered by the county court to be paid to the plaintiff as one of the distributees and of kin to the deceased, November 11, 1884.

<p>Contract for purchase of goods: Assignment to corporation.: Consent: Construction: Refusal to perform: Damages.</p> <p>1. Upon the dissolution of a firm and the transfer of its business to a corporation organized by its members, the firm sold to the corporation all its “stock in trade, notes, . . . debts due and to become due, accounts and books of account, . . . and all other choses in action and personal property of every name and nature.” An executory contract previously made by the firm for the purchase, from manufacturers, of goods to be retailed in the business of the firm was thereafter taken by the corporation and claimed as its own, without objection from any member of the former firm. In an action by the corporation on such contract, it is held that it had been transferred to the corporation.</p> <p>2. Orders under such contract were sent by the corporation to the manufacturers upon letter heads, etc., showing that the corporation had succeeded to the business, and were filled by the manufacturers. The latter also had actual notice of the change. Afterwards they refused to fill orders upon other grounds, but never objected on the ground that the orders came from the corporation. In an action by the corporation on the contract, it is held that the manufacturers had consented to the change and waived their right to object thereto. v</p> <p>8. A written direction by dealers to manufacturers to “enter our order for all steel bow sockets for the year 1888 ” on certain terms, Upon which the manufacturers wrote “Accepted, subject to all unavoidable or unforeseen causes,” constitüted a valid contract for the purchase of all such bow sockets as the dealers might order for the year, upon the terms and subject to the conditions named.</p> <p>4 The contract was made two months before January 1, 1888. Held, that it was for the purchase of bow sockets for the prospective trade of the dealers during 1888, and that they had no right thereunder to order, during 1888, for the trade of 1889.</p> <p>5. The dealers were doing business in one state and the manufacturers were located in another. The contract was silent as to where the bow sockets were to be shipped to. Held, that the question whether the dealers had the right to order them shipped wherever and to whomever they might direct, was a question for a jury, upon legitimate evidence.</p> <p>6. The manufacturers refused to fill two specific orders from the dealers to ship bow sockets to other parties, and wrote, “We shall ship no more sockets on any of your unfilled orders.” It did not appear that prior unfilled orders were not all for shipments to other-parties. Held, that such refusal might be construed as applicable only to prior unfilled orders, and not a refusal to further perform the contract.</p> <p>7. In an action against the manufacturers for their refusal to fill orders under the contract, they are liable only for their failure to fill such specific orders as were rightfully made under the contract, or for the loss of profits on sales which the dealers had the opportunity of making and would have made had not the manufacturers in advance refused to fill any more such orders.</p>

<p>APPEAL from the Circuit Court for Washburn County.</p> <p>At a certain point in Washburn county the railroad track of the defendant railway company is crossed by a private logging^ railroad known as the “ Crescent Springs Railroad,” which is constructed entirely upon the land of the Shell Lake Lumber Company, and is owned and operated exclusively by that company, by steam power, for its own benefit in carrying on its lumbering business. Such logging railroad is not fenced.. The track of defendant’s railroad is properly fenced and guarded, with the exception (if it be an exception) that the 'openings in the fences through which such logging railroad is laid at the crossing are not guarded by gates, bars, or cattle guards to prevent domestic animals from going through them upon such track. Plaintiff’s horses went through one of those openings upon defendant’s railroad track, and were run against by a passing train and injured. This action is to recover damages for such injuries.</p> <p>It was stipulated by the parties, on the trial, that the only question of negligence in the case is whether the railway company is bound to fence at the crossing of its track by the logging road of the lumber company. The circuit court held that it was bound by law to guard the openings at such crossing in some way to prevent domestic animals from going through them upon the railroad track, and having failed to do so it was liable to the plaintiff for the injuries to his horses. The court further found that the statute requires the lumber company also to guard the crossing, and that at his election the plaintiff might have held that company for his damages. There is no question of the amount of damages or of contributory negligence. The stipulation disposes of the latter question. The plaintiff recovered judgment for the damages claimed and proved, and the railway company appeals therefrom.</p>

<p>(1) Evidence: Exceptional state of facts. (2-4) Debtor and creditor: Husband and wife: Fraudulent conveyances: Evidence: Estoppel.</p> <p>1. If a remarkable and exceptional state of facts is satisfactorily proven, a court cannot refuse belief simply because it is out of the usual course of events.</p> <p>3. The evidence in this case (stated in the opinion) is held to sustain findings of the trial court as to the possession of separate estate by the wife and its investment in the property which the husband’s creditors seek to subject to the payment of his debts.</p> <p>8. Real and personal property was purchased with the separate estate of the wife and the title was taken in the name of her husband, with the understanding that he would convey to her when she desired. Afterwards, while he was still solvent, he conveyed the property to her, without fraudulent intent on the part of either. Such conveyance being attacked as fraudulent by creditors of the husband who had given him credit in reliance upon his apparent ownership of the property, it appeared that neither husband nor wife had made any representation- as to the title and neither knew that credit had been given the husband on the faith of his apparent title, and that the title had not been put in his name for the purpose of gaining credit for him. Held, that the conveyance to the wife was valid, and that she was not estopped to claim the ownership of the property as against said creditors. Hopkins v. Joyce, 78 Wis. 443, distinguished.</p> <p>4. A wife intrusted her husband with money to be invested for her in lands and mortgage securities, and he, without her knowledge or consent, took title in his own name. As soon as she learned that fact she procured a conveyance of the title to herself. At the time of such conveyance the husband was indebted to other persons, but no part of such indebtedness was contracted on the faith or credit of his ownership of the property included in the conveyance, and he had not taken the title in his own name' for the purpose of obtaining credit. Held, that the conveyance was valid as against his creditors.</p>

<p> Executions: Homestead: Sale after judgment docketed: Action to quiet ' ‘ title: Possession. </p> <p>1. Certain land was occupied by the owner as his homestead at the time > of the recovery and docketing of a judgment against him and thereafter until he contracted to sell it. Afterwards he assigned said contract and conveyed his interest in the land to another person. Held, that the judgment did not become a lien upon the land, and no' sale thereof on execution founded on such judgment could affect the rights either of the grantee or of the vendee in the land contract.</p> <p>2. The grantee, though not in actual possession of the land, could maintain an action to restrain the sale thereof on such an execution, on •the ground that such sale would create a cloud upon his title; and in such action he need not allege that the land was the homestead of the judgment debtor at the time of the issuing of the execution and its levy.</p>

<p>(1) Life insurance: False statements in application: Warranties. (2) Costs on appeal: Printed case.</p> <p>1. Where it was expressly stipulated that the statements and answers in an application for membership in a benefit society should be taken and construed as strict warranties, the insurance-was avoided by a false statement in such application that the insured had never had a certain disease, although he never knew he had it and hie death resulted from other causes.</p> <p>2. The printed case herein containing 174 pages, while a proper abstract of the record would not fill more than seventy-five pages, allowance is made in the taxation of costs for printing the latter number of pages only.</p>

<p> Adverse possession of land. </p> <p>The mortgagor of land remained in possession after foreolosure and sale until his death seven years later, and his widow continued in possession thirty years thereafter, cultivating the land and making improvements. The taxes, however, were all paid by the true owners, and they never had any notice that the widow claimed to hold otherwise than as her husband had done, by their permission. Held, that her possession was not adverse.</p>

<p>APPEAL from the Circuit Court for Eau Glawe County-</p> <p>On March 19, 1890, the plaintiff filed with the city clerk of the defendant, for the action of its common council thereon, his claim for damages caused by the change of grade in front of his premises, in the sum of $1,500. Said claim was by the common council referred to its judiciary committee, April 2, 1890, and on the same day said committee reported said claim back to said council with the recommendation that the same be disallowed. On the same day the common council took final action on said claim, and disallowed the same and each and every part thereof. On April 18, 1890, the plaintiff duly appealed therefrom to the circuit court for Eau Claire county. While the cause was so pending in said circuit court, the parties thereto stipulated and agreed in writing that an issue be formed by the plaintiff serving and filing his complaint therein within twenty days, and by the defendant serving and filing its answer or demurrer thereto within twenty days thereafter.</p> <p>"Within the time named the plaintiff filed and served his complaint, setting out, in effect, his ownership of the premises described, which fronted north on Bridge street and west on Second avenue in said city; that during 1880 the said city, by its common council, by ordinance duly approved and published, duly established the grade on said streets, and which had for a long time previously been duly established as such grade; that the plaintiff’s buildings were erected with reference to such grade so established; that in March, 1886, by proper proceedings, said grade was re-established on said Bridge street and said Second avenue, in front of the plaintiff’s said premises, in accordance with the grade theretofore existing and established; that in March, April, and June, 1889, the said city attempted to change the grade so previously established in front of the plaintiff’s said premises, and the complaint states the several particulars wherein it failed to comply with the charter of said city; that during the fall of 1889 the defendant filled up and graded said street, in front of and adjoining the plaintiff’s premises, to a height of about five feet and nine inches above the former level of said street as theretofore established in 1880 and re-established in 1886, but which filling was without authority in the charter; that the effect of the raising of said grade had been to make the floor of said buildings about five feet below the said street, and thereby greatly damage and injure the plaintiff and lessen the value of his property; that the plaintiff was thereby obliged to incur large expense in raising his buildings and filling up his land and the basement of his buildings, so as to make said premises conform to such new and unauthorized grade, and that the plaintiff had thereby been damaged in the sum of $1,500; that the claim therefor had been presented, filed, and disallowed by the common council, as mentioned, and the plaintiff appealed therefrom, as mentioned, wherefore he demanded judgment for the amount of said claim with interest.</p> <p>A demurrer to that complaint on the ground that it did not state a cause of action was overruled by the trial court, and the order overruling the same was affirmed by this court. 79 Wis. 97. Upon said cause being remanded to the circuit court the defendant answered, by way of admissions and denials, and alleged that the plaintiff did not file his claim or any claim for the cause of action or injury set forth in the complaint, and denied that the claim so filed and disallowed was for the cause of action or injury set forth in the complaint, and attempted to justify such change of grade in the months of March, April, and June, 1889.</p> <p>At the close of the trial of the issue so formed by said answer the jury returned a verdict in favor of the defendant and against the plaintiff. From the judgment entered thereon the plaintiff appeals.</p> <p>They argued, among other things, that the court erred in charging the jury that they should allow as an offset to plaintiff’s damages such amount as they should find that his property had been benefited by the change of the street in common with other property in the neighborhood. 6 Am. & Eng. Ency. of Law. 581; Lewis, Em. Dom. sec. 471; Washhurn v. M. & L. W. R. Go. 59 Wis. 364; Robbins v. M. <& II. R. Co. & id. 636; Elliott, Eoads & S. 191, 192; Sutherland, Dam. secs. 157, 1018; Lahr v. M.F. R. Go. 104 FT. Y. 268-295; Baltimore v. St. Agnes Hospital, 48 Md. 419; Davis v. E. T. R. Go. 87 Ga. 605; Baltimore <& P. R. Go. v. First Baptist Church, 108 U. S. 317; Marcy v. Fries, 18 Kan. 353; Francis v. Schoellcopf, 53 FT. Y. 152; Gerrish v. Hew Market Mfg. Go. 30 N. H. 478; Ward v. Atlanta, 78 G-a. 276; Kier-na/n v. Heaton, 69 Iowa, 136; Whitney v. Brunette, 15 Wis. 61; Hopkins v. langton, 30 id. 379; Freeland v. Muscatine, 9 Iowa, 461; Walters v. Chamberlin, 65 Mich. 333; Huebsch-ma/rwi v. McHenry, 29 Wis. 655; Graessle v. Carpenter, 70 Iowa, 166; Brown v. Beatty, 34 Miss. 227.</p> <p>contended, inter alia. that the rule of damages was the depreciation in the value of the property caused by the change of grade, and that the general benefits conferred upon the plaintiff’s premises in common with othpr property affected by the grade ought to be offset against the direct damages. Stowell v. Milwaukee, 31 Wis. 523; Church v. Milwaukee, id. 512; S. C. 34 id. 66; Stadler v. Mil/waukee, id. 98; Tyson v. Milwaukee, 50 id. 78; Murphy v. Fond du Lac, 23 id. 365; Crossed v. Janesville, 28 id. 420. The true measure of damages for any permanent injury to the soil, where property is not taken but merely damaged, is the difference between the value of the land immediately before . the injury and its value immediately after. Springer v. Chicago, 135 Ill. 552; Chambers v. South Chester, 140 Pa. St. 510; Field, Dam. sec. 744; 3 Sutherland, Dam. 372-3; Luther v. Winnisimmet Co. 9 Cush. 171; Fort Worth & D. C. B. Co. v. Hogsett, 67 Tex. 685; Owens v. M. P. B. Co. id. 679. See, also, McGuire v. Grant, 25 N. J. Law, 356; Chase v. H. T. C. B. Co. 24 Barb. 273; Schuylkill Nav. Co. v. Farr, 4 Watts & S. 362; Harvey v. Sides Mining Co. 1 Nev. 539 yTalcoit v. Crippen, 52 Mich. 633; Topeka v. Martineau, 42 Kan. 387; Eggle-ston, Dam. secs. 160, 165; Brower v. Merrill, 3 Pin. 46.</p>

1. Where a contract was made nominally'with one person but was understood by all parties to be for the benefit of another, the fortper having an interest therein only by way of security for advances made thereon to the latter, the latter may maintain an action for a breach of the contract. APPEAL from the Circuit Court for Ba/rron County.* Action for damages for breach of contract. Plaintiff is the assignee of the cause of action, from one L. O. Larson, for value.

Action for personal injuries. The unincorporated hamlet of Lyons lies on the north side of the Baraboo river, in Sauk county, about one and one-fourth miles west of Bara-boo. It has four streets running due north and south, named respectively, beginning at the east, Cedar, Walnut, Mulberry, and Pine, the intervening blocks being about 400 feet in length.

This action was brought upon a policy of insurance against loss by fire of certain buildings and their contents. The policy was issued by defendant insurance company to plaintiff, and bears date June 15, 1888. The insured property was burned during the life of the policy, to wit, on August 14, 1888. Due proofs of loss were made. The defendant company having denied liability under the policy, this action was commenced December 8, 1888.

<p>EepoRted from the Municipal Court of Mihucvulcee County.</p> <p>The facts are stated in the opinion.</p>

This action is to recover damages for personal injuries sustained by the plaintiff while attempting to drive over a bridge across Sugar river in the defendant town, July 20, 1890.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The facts are sufficiently stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. to the point that there was no error in charging the jury that the making of a running switch is a most dangerous proceeding and that it was the duty of the defendant to take special pains to give the public full warning of the danger, cited 1 Thomp.

The complaint alleges, in effect, that on the morning of March 31, 1891, the plaintiff was a fireman in the employ of the defendant, and at work upon his engine, then standing at the water tank at the city of Eau Claire; that in the discharge of his duty the plaintiff 'went upon the tender and pulled down the spout to supply the engine with water; that after he had supplied the engine with water, and while be was standing upon the rear portion of the tender, with his hands…

<p> Criminal law: Rape: Evidence. </p> <p>1. On a prosecution for the rape of a girl ten years old, she was asked, “ Was there anything left when he got away from you ? Was it wet between your legs? ” These questions being objected to as leading, counsel added, before answer, “What about that, if you remember? ” Meld, that this modification obviated the objection. IJardtke v. State, 67 Wis. 553, distinguished.</p> <p>2. The questions, “ Did he do anything with you that you thought he ought not to? ” and “ What else did he do — about taking it in your hand,— anything about that? ” were not objectionable as being leading.</p> <p>8.A physician, after stating a variety of causes which might have produced the condition of the girl’s person found by him on examination, was properly allowed to- state that if a male had done with her what she stated he would be very apt to lay it to that, in the absence of other causes, and that he did not find any other cause.</p> <p>4. Evidence that the prosecutrix had told others what had occurred was 51 admissible in corroboration of her evidence.</p> <p>5. An officer was properly allowed to testify as to what took place when he went to the defendant’s house to get the girl at the time he was investigating the case, to the effect that defendant’s wife (defendant himself being absent) endeavored to prevent the girl from going with him.</p> <p>6. Evidence that the defendant got into the bed in which the prosecu-trix and an older girl were sleeping and liad intercourse with the latter, was admissible as showing an indecent assault upon both and as corroborative of the testimony of the prosecutrix in respect to previous and subsequent assaults upon her.</p> <p>7. Defendant not having objected to the question asked of said older girl, as to whether on that occasion he had intercourse with her, but having taken the chance that she would contradict the evidence of the prosecutrix in that respect, was not entitled to have her affirmative answer stricken out. It was a matter of discretion whether to strike out evidence thus received without objection.</p> <p>8. A remark of counsel for the prosecution, during his argument to the jury, that “ the defendant was taking improper liberties and advantages with every person who came under his roof,” was not improper, in view of the evidence.</p> <p>9. Under an information charging rape and also that on a certain date and at divers other times between that and a later date defendant assaulted the prosecutrix with intent to unlawfully and carnally know her, it was proper not to confine the prosecution to proof of one act of attempted sexual intercourse between the dates mentioned. Proof of other attempts was competent in corroboration of the prosecutrix as to the substantive charge.</p> <p>10.Any attempt to have carnal knowledge of a female under the age of consent is, by force of the statute (sec. 4382, S. & B. Ann. Stats.), necessarily against her consent and forcible; and said sec. 4882 is not void for uncertainty.</p> <p>11. Testimony of an officer of a humane society as to the circumstances under which the prosecutrix was placed with the defendant with a view to adoption, was admissible; and it was within the discretion of the court to allow such officer to sit by her when she gave her testimony.</p>

<p> Replevin: Defendant not in possession: Mingling of property. </p> <p>1. Before making an assignment for the benefit of creditors a corporation had refused to accept or pay for lumber landed upon its docks, on the ground that it was not such as had been ordered. The as-signee, though notified by the owner not to do so, scheduled the lumber as assets of the corporation, and afterwards refused to deliver it to the owner and sold it with property of the corporation. ■ Held, that replevin in the detinet would lie against the assignee, . although he had parted with the possession before the action was commenced.</p> <p>2. The lumber having been mingled with other lumber in the yard of the corporation in such a way that it was difficult to ascertain what part of it came to the hands of the assignee, the owner was entitled to recover the full quantity, supplied, if necessary, by other lumber of the corporation with which it had been so mixed.</p> <p>3. In the action against the assignee he was not entitled to any deduction from the verdict on account of advances made by the corporation on the lumber.</p>

<p>APPEALS from the Circuit Court for Sheboygan County..</p> <p>This is an action of ejectment commenced in November, 1889, to recover a tract of land in the city of Sheboygan lying south of the harbor in that city, bounded on the east by Lake Michigan, on the south by a direct line running from Lake Michigan west to the Sheboygan river, and. on the west and north by irregular lines sufficiently described in the complaint. For convenience or accuracy of description three tracts of land are described in the complaint, each by metes and bounds, but these adjoin each other,-.and together constitute but one parcel of land. The complaint is in the usual form. The answer contains a denial of plaintiff’s title to the land claimed, and alleges adverse possession thereof by the defendants for more than thirty years, under sec. 4214, B. S. It appeared in proof that defendant George Groh had been in the actual possession of some portion of the land described in the complaint continuously ever since 1848,— be having resided thereon all that time,— and that the other defendants claim under him.</p> <p>On the trial the circuit court held as matter of law thát the plaintiffs had established their title to all the land claimed in the action, unless such title had been divested by adverse possession of defendants. The jury found specially that defendant George Groh entered upon a portion of the land described in the verdict by metes and bounds' under claim of title exclusive of any other right; that he protected the same by a substantial inclosure; and that he and those claiming under him had been in the continuous, actual, visible, and adverse possession of the land so inclosed, hostile to plaintiffs and their grantors, for more than twenty years before this action was commenced. It appeared also that the east line of such inclosure originally abutted Labe Michigan, but that afterwards, by the action of the elements and perhaps other causes, a considerable accretion of land formed between the east side of such inclosure and the waters of the lake, outside of such inclosure. The jury also negatived the claim of plaintiffs that defendant George Groh ever held the land in controversy as tenant of certain grantors of plaintiffs named in the verdict.</p> <p>Plaintiffs moved for a new trial; also for judgment on the verdict for all the land claimed; and defendants moved for judgment on the verdict for the land formed by accretion, as well as for that contained in the inclosure. All these motions were denied, and on the evidence and verdict the circuit court gave judgment for defendants, without costs, for the land actually within the inclosure as described in the verdict;. and for thé plaintiffs, with costs, for ■ the residue of the land claimed. The judgment for plaintiffs includes a quantity of land west and north of such inclosure, adjoining the same, and the accretion on the east thereof.</p> <p>The plaintiffs appeal from that part of the judgment which awards to defendants the land contained in the inclosure, and the defendants appeal from that part thereof which denies them costs and awards the plaintiffs the land between such inclosure and the waters of Lake Michigan, thus formed by accretion, with costs'!</p> <p>They contended, inter alia, that to constitute adverse possession entry must be made with well-defined claim of title, and possession continued while the statute runs. Pepper v. O' Dowd, 39 Wis. 538; Link v. Doerfer, 42 id. 391; Hacker v. Horlemus, 69 id. 280; S. G. 74 id. 21; Graeven v. Dieves, 68 id. 317; Jackson v. Thomas, 16 Johns. 293; Grube v. Wells, 34 Iowa, 148; Harvey v. Tyler, 2 Wall. 328, 343; Probst v. Presb. Church, 129 U. S. 182, 191; Tyler, Ejectment, 860. Defendants did not acquire any right to the accretions. The adverse possession could not be extended by construction beyond the land actually inclosed and occupied. 1 Am. & Eng. Ency. of Law, 292, § 44, and cases cited; Tyler, Ejectment, 891; Sydnor v. Palmer, 29 Wis. 226, 252; Graeven v. Dieves,■ 68 id. 321; Harvey v. Tyler, 2 Wall. 328.</p> <p>To the point that the title to the mainland, acquired by adverse possession, carried with it the accretions, they cited Valentine v. Piper, 22 Pick. 85; Cobb v. lavalle, 89 Ill. 331; Kinzie v. Winston, 4 Nat. B. Reg. 21; Lombard v. Kinzie, 73 Ill. 446; Wood v. San Francisco, 4 Oal. 190; New Orleans v. U. S. 10 Pet. 662; Boorma/n v. Sunn-uchs, 42 Wis. 233; Dela-plaine v. C. d¡¡ N. W. R. Go. id. 214; Diedrich v. N. W. TJ. R. Go. id. 248; Nebraska v. Iowa, 143 U. S. 359; Angelí, Watercourses, sec. 53; Cookv. Burlington, § Am. Rep. 649; Turner v. Peoples Ferry Oo. 21 Fed. Rep. 90; Nor cross v. Griffiths, 65 ~Wis. 599; Oleson v. Merrill, 42 id. 203; Gould, Waters, see. 155; Bailey v. Wells, 55 Conn. 292; Burrill, Law Diet. Incident ; Bates v. 111. Cent. 1 Black, 204; East Omaha L. Oo. v. Jeffries, 40 Fed. Rep. 386.</p>

<p> Contracts: Offer and acceptance: Sale of land: Jurisdiction. </p> <p>1. The acceptance of an offer upon terms varying from those of the offer does not make a contract.</p> <p>2. Plaintiff gave defendant an option to buy certain land at a certain price. After a building upon the land had burned, defendant accepted the option, but at the same time and as part of the same transaction, though by a separate writing, demanded that the insurance money on said building be paid to him or applied upon the purchase price. Plaintiff refused to convey on that condition, but offered to convey the property as it then stood upon payment of the full price. Defendant refused to accept that offer. After-wards, having discharged a mortgage on the land by applying said insurance money thereon, plaintiff tendered a deed to defendant upon payment of the full price, but the defendant refused to accept ifc on those terms. Held, that there was no completed contract for the sale of the land.</p> <p>3. Although both parties in such case claim that there was a completed contract,— plaintiff claiming to recover the full purchase price, and defendant counterclaiming for a conveyance,— the court cannot take cognizance of the case on that theory.</p>

<p>APPEAL from the Circuit Court for Dane County.</p> <p>This action is upon an undertaking executed by defendant, William Haalc, and delivered to the proper officer, to procure the execution of a writ of attachment. The following facts appear by the uncontradicted allegations of the complaint:</p> <p>An action was brought before a justice of the peace by one John M. Becker against the present plaintiff, Elias Zeohman, for the recovery of money. 'While the action was pending in the circuit court on appeal, ÍBecker instituted attachment proceedings therein against the property of Zeoh-man. The affidavit required by sec. 2731, S. ■& B. Ann. Stats., was duly made and annexed to the writ of attachment, and an undertaking in the sum of $250, required by sec. 2732, was duly executed by the present defendant, Haak, and delivered to the proper officer,, and thereupon such officer executed the writ by seizing the property of Zeohman. This is the undertaking in suit. Afterwards the circuit court dissolved and dismissed the writ of attachment, and rendered judgment exceeding $250 against Becker, in favor of Zeohman, for his damages and costs in the attachment proceedings. The grounds for dissolving the attachment do not appear. Neither does it appear-that the original action thus appealed to the circuit court'-, has been disposed of. Defendant, Haak, answered, in substance, that Becker recovered judgment for $10 and- cost».-, in his action against Zechman in justice’s court, and appealed:! from such judgment in his favor to the circuit court, and.did;v not interpose the affidavit required by sec. 3768, R. S., to -era- - title him to a trial de novo in the circuit court. The answer, - contains no denial of any averment in the complaint..</p> <p>A general demurrer to the . answer was sustained, byvfch'e • court, and from the order sustaining the same the-defend- - ant appeals.</p> <p>They contended, inter alia, that no action lies on the undertak-:-ing. ■ Where the attachment is absolutely voidVau.under-taking given to obtain or discharge it is also void.:. SMvlvn., v. Whelen, 41 Wis. 88; Billingsley v. Harris,-,.^ id. 103; Mansfield, C. <& L. M. H. Go. v. Swan, 111 U. S. 379; Mayor v. Cooper, 6 Wall. 250; Mittnacht v. Kellermmm, 105 N. Y. 461; Yose v. Cockcroft, 44 id'. 415; Caffrey v. Dudgeon, 38> Ind. 512; Benedict v. Bray, 2 Cal. 251; Hides v. Menden-hall, 17 Minn. 475; State Treasurer v. Wells, 27 "Ft. 276. In the following cases will be found an application of the general doctrine to undertakings and bonds given in various proceedings: Rosen v. Fischel, 44 Conn. 371; Perry v. Ilensley, 14 B. Mon. 474; Tarbell v. Gray, 4 Gray, 444; Comm. v. Collins, 11 id. 465; Bridge v. Ford, 4 Mass. 641; Vose v. JDeane, 7 id. 280; Learnard v. Bailey, 111 id. 162; Libby v. Main, 11 Mo. 344; Creen v. HasJcel, 24 id. 180; Jordan v. McKenney, 45 id. 306; State v. Young, 56 id. 219.</p> <p>They argued, among other things, that even if the circuit court was without jurisdiction to issue the writ of attachment, the undertaking here sued on would not be void. A bond voluntarily given as the means of securing some benefit or advantage to the obligors should be held good as a common-law bond, notwithstanding the particular proceedings in which such bond is given are void by reason of want of jurisdiction. McLud&ie v. Williams, 68 Md. 262; Stevenson v. Miller, 2 Litt. (Ky.), 310; Cotton v. Wolf, 14 Bush (Ky.), 238, 248; State v. Starch, 75 Mo. 566; Frederick- v. Tiffin, 22 Mo. App. 443; Boioers v. Bech, 2 Nev. 139; Respublica v. Le Gaze, 1 Teates (Pa.), 55, 69; Henoch v. Chancy, 61 Mo. 129; Edmonds v. Morrison, 5 Dana (Ky.), 224; McCord v. Fisher’s Heirs, 13 B. Mon. 193; Clay’s Admlrs v. Edward’s Trustee, 84 Ky. 548; Jones v. Cordon, 82 Ga. 570; Sexton v. Ilmdman, 2 Tex. Ct. App. Civ. Cas. § 462. See, also, Burroughs v. Powder, 8 Mass. 373; Brown v. Cetchell, 11 id. 11; Prong v. Wasdell, 146 id. 324; Ascue v. Hollingsworth, Oro. El. 544; Wright v. Keyes, 103 Pa. St. 567.</p>

<p> Action, tort or contract9 Pleading: Estoppel: Reference: Examination of long aeeount. </p> <p>A An action in which the complaint demands judgment for a specific and liquidated sum, with interest, alleged to be due the 'plaintiff and withheld by the defendants in violation of the contract under which they collected it, is an action on contract, although it is also alleged that defendants “ have wrongfully converted the same to their own use; ” and a reference may be ordered therein if the trial of the issues of fact requires the examination of long accounts.</p> <p>2. The plaintiff in such action, having replied to and taken issue upon defendants’ counterclaim for the value of their services other than those rendered in the collection of said money, is estopped to claim that the action is in tort.</p>

<p>Appeal: Beview of evidence: Motion f&r new trial: Infury from defective sidewalk: Evidence: Res gestae: Expert testimony: Improper ■ remarks of counsel: Special verdict:. Instructions to jury. , > .</p> <p>1. Where no motion for a' new trial was made until after judgment was entered, and the judgment only is appealed from, this court will,not review the evidence to determine whether it sustains the verdict.</p> <p>2. The act of an eyewitness in pointing out to another person the exact place of an accident a few minutes after it occurred p.ertaiijs to the res gestos, and such other person may properly testify to the location of the place thus pointed out.</p> <p>3. The improper admission of evidence is not a material error where other and competent evidence to the same effect is uncontradicted or is overwhelming.</p> <p>4. In an action to recover for injuries to plaintiff’s eye it was proper to permit an expert to testify that in his opinion it was necessary to remove the injured eye to save the sight of the other eye, which was endangered by sympathetic inflammation.</p> <p>5. After plaintiff’s counsel had said in his argument to the jury that a witness for the defense had volunteered two statements, and defendant’s counsel had objected to argument in respect thereto, a colloquy ensued between court and counsel- in which it was suggested that the testimony in question had been stricken out, as in fact it had been in part, but the court seemed to think otherwise. No argument on such testimony was made, however, and the subject was dropped. Held, that there was no material error.</p> <p>6. The refusal to submit questions for a special verdict in the form in which they are proposed is not error if they are substantially and intelligibly submitted in other forms.</p> <p>7. It is not error to refuse to submit for a special verdict questions as to which there is no evidence.</p> <p>8. Where the jury are to find a special verdict only, the giving of a general charge on the law of the case is not good practice but is not necessarily error. The general charge in this case not having been such as to indicate how the jury should find upon any given question of fact or to interfere with the proper consideration and determination of each question independently of all others, tire giving thereof was not error. Ryan v. Rockford Ins. Co. 77 Wis. 611, distinguished.</p>

<p>Habeas corpus: Erroneous judgment.</p> <p>Where, under an information charging, generally, wilful and felonious murder with malice aforethought, a simple verdict of guilty is rendered, not specifying any degree, a judgment thereon is erroneous, but there is no jurisdictional defect authorizing the discharge of the prisoner- on habeas corpus.</p>