Volume 86 — Wisconsin Reports

On January 27, 1885, one Eannie E. Nash received from > the Northwestern Mutual Relief Association of Madison a . certificate of membership for insurance in an amount ’not exceeding $4,000, with one half payable to E. E. Doty}. and ' the remainder equally divided between the plaintiff and G. C. Chittenden as beneficiaries.

<p> Deed: Covenant against incumbrances: Estoppel: Parol evidence: Manner of paying consideration. </p> <p>1. After the. execution and delivery of a conveyance of land the grantee retained the entire consideration under .an agreement that he would apply it to the payment of existing incumbrances, against which there was a covenant in the deed. Afterwards, upon a settlement between the parties, the grantee represented that he had paid a certain incumbrance, and took credit therefor, though he had not in fact paid it. Held, that he was estopped thereafter to claim a breach of the covenant by reason of said incumbrance.</p> <p>2. Parol evidence of the above facts did not tend to contradict or vary the effect of the deed or covenant.</p> <p>3. Parol evidence is admissible to show in what manner the consider- . ation named in a deed is to be paid.</p>

<p>Judgment: Res adjudicata: Effect of appeal.</p> <p>A mere appeal does not affect a judgment as a bar to another action.</p>

The principal defendant, J. L. Tabor, was a merchant at Prairie du Sac. On April 11, 1892, he executed a chattel mortgage upon his goods, furniture, and fixtures to the garnishee, J. 8. Tripp, to secure the payment of $1,900 and interest, and said mortgage was filed in the office of the village- clerk April 12, 1892.

Plaintiff sues to recover interest moneys on state funds deposited in banks, alleged to have been received by defendant Baetz while state treasurer, and not accounted for. The remaining defendants are sureties upon Baetz's official bond. The summons was served without complaint, and an affidavit was also served, upon which notice of the examination of defendants Baetz, Pabst, and Pritzlaffi under sec. 4096, S. & E. Ann. Stats.,1 was given.

<p>APPEAL from the Circuit Court for Outagamie County.</p> <p>Action by the plaintiff for the recovery of damages for being deprived by the defendant of the services of his minor daughter since the 28th of December, 1887, and for alienating and estranging her affections from the plaintiff, her father. The complaint has annexed to it, as an exhibit and part thereof, certain alleged proceedings for the adoption by the said defendant and Rosa, his wife, of the plaintiff’s daughter Mary, representing their desire to adopt her, and alleging that she was a child of John Schiltz and Christina, his wife, who is deceased; that the said Mary was then thirteen years of age, and that John Schiltz, the plaintiff, abandoned her and his other children in 1884, and had not since been heard from; that,the petitioners are of sufficient ability to bring up said child and furnish her suitable culture and education; and that she has no general guardian. The petition prayed an order of adoption from the court, and that from and after the date thereof such child be deemed, to all legal intents and purposes, the child of the petitioners, and was verified. Indorsed on the petition was the consent of Jacob Imig to such adoption, reciting that he had been duly appointed by the county court of Sheboygan county to consent thereto. Annexed to the complaint is an order which recites, in substance, the allegations of the petition, that the said Mary has no guardian, and appointing said Imig for the purpose of appearing for said child and consenting to said adoption if he shall deem it best; also, an order reciting the substance of the petition, and the appointment of Imig, and his consent, under sec. 4022, ch. 173, R. S., and that the court being satisfied of the identity and relation of the persons, and that said petitioners have sufficient ability to bring up and furnish suitable culture and education for said child, having reference to the degree and condition of its parents, and that it is proper for such adoption to take effect, it was thereupon ordered that from and after the date thereof said Mary Schiltz should be, to all legal intents and purposes, the child of the petitioners, Charles II. Roenitz and Rosa, his wife,</p> <p>It was alleged that the defendant had retained said plaintiff’s child in his possession up to the present time, against the will of the plaintiff; that the allegation of abandonment was untrue; that he had attempted to regain possession and control of his daughter, and the defendant had retained her, threatening the plaintiff with personal violence if he attempted to get possession of his child. The proceedings in the county court are alleged as the ground of the defendant’s detention of the daughter. There is nothing on the face of the proceedings or connected therewith to show that any notice thereof was ever given to the plaintiff or that he ever consented to the order of adoption.</p> <p>The defendant answered the complaint, and at the trial objected to any evidence under it, on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the objection, and dismissed the plaintiff’s complaint, and from this judgment the plaintiff appealed. '</p> <p>argued, among other things, that the proceedings before the county judge were without notice to the plaintiff, and therefore void. Milwaukee Industrial School v. Milwaukee Oo. 40 Wis. 328; Seifert v. Brooks, 34 id. 443, 447; Sanger v. Mellon, 51 id. 560; Hawes, Jurisdiction, sec. 12; Windsor v. Me Weigh, 93 U. S. 274; Wynehamer v. People, 13 JST. Y. 394-5. The evidence upon which the court acts must be preserved as a part of the record; or so much, at least, as confers jurisdiction. Niblo v. Post’s Adrn’rs, 25 Wend. 291; People v. Overseers, 15 Barb. 286.</p> <p>contended, inter alia, that the complaint was fatally defective in this, that it attempts to state a cause of action founded upon a collateral attack upon a judgment or final order of a court acting within its prescribed statutory jurisdiction, and does not allege a want of jurisdiction of the subject matter, loss of jurisdiction during the proceedings, fraud, or collusion, which are the grounds of collateral attacks upon judgments, decrees, or final orders of courts of subordinate or co-ordinate jurisdiction. Yan Fleet, Collateral Attack, secs. 5, 16; Freeman, Judgm. (3d ed.), secs. 120, 121, 334-336; Freeman, Yoid Judicial Sales, secs. 7, 8; Gilliland v. Sellers, 2 Ohio St. 223; Greene v. Greene, 2 Gray, 361; Mason v. Messenger, 17 Iowa, 261; Osborne v. Moss, 7 Johns. 161, 5 Am. Dec. 252; Jackson v. Astor, 1 Pin. 137. The county court of Sheboygan county had jurisdiction of the subject matter of the adoption proceedings, and retained it to the end. S. & B. Ann. Stats, secs. 2443, 4021, 4024; Milwaxvkee Industrial School v. Milwaukee Go. 40 Wis. 328; Gary, Probate Law, sec. 861; 3 Pomeroy, Eq. Jur. sec. 1308; Brown, Jurisdiction, sec. 79. Adoption proceedings are proceedings quasi in rem. Brown, Jurisdiction, sec. 80. The allegation that the plaintiff never abandoned his child only sets out a mistake of fact, which fact is found affirmatively by the county court in its order of adoption, and is one of the affirmative facts upon which the order of adoption finds a legal foundation, and can only be questioned .by an application to the county court for review, appeal, writ of error, certiorari, or habeas corpus. Baker v. Baker, 51 Wis. 539; In re Fisher, 15 id. 512; Estate of Leavens, 65 id. 440; Story, Eq. Jur. sec. 896, and note; FysieSs Appeal, 65 Pa. St. 473; Western Union JR,. Go. v. JDiclcson, 30 Wis. 389; S. & B. Ann. Stats, secs. 4031-35,4046-48; Yan Fleet, Collateral Attack, secs. 2, 17, 801; Gary, Probate Law, sec. 871, note; Gaston v. Babcock, 6 Wis. 503; Gunn v. Green, 14 id. 317; Jamison v. Snyder, 79 id. 286; Shwnum v. Hurd, id. 654; State v. Prince, 45 id. 610; In re Pierce, 44 id. 411-426; Petition of Sender, 41 id. 523; Petition of Grandall, 34 id. 177. The record in the adoption proceedings is absolute verity, to contradict which there can be no argument or evidence. Jackson v. Astor, 1 Pin. 137; Tall-mam, v. McCarty, 11 "Wis. 401; Arnold v. Booth, 14 id. 180; Warner v. Howland, 10 id. 8; Falkner v. Guild, id. 563; Amory v. Amory, 26 id. 152; Franfcfurth v. Anderson, 61 id. 107; Salter v. Hilgm, 40 id. 363; Freeman, Judgm. sec. 319a; Brown, Jurisdiction, sec. 127; Yan Fleet, Collateral Attack, secs. 17, 61; Barker v. Ba/rker, 14 Wis. 131; Cummings v. Cummings, 123 Mass. 271. The recitals in the order of adoption take the place of findings and show a compliance with the provisions of secs. 4021-4024, S. & B. Ann. Stats. The petition being regular in form and reciting sufficient to confer jurisdiction, the conclusion of the county court, the order of adoption, is not open to a collateral attack. Brown, Jurisdiction, secs. 61,127; Freeman, Judgm. sec. 319a; Voorhees v. Bank of TI. S. 10 Pet. 449; Thompson v. Tolmie, 2 id. 157; Comstock v. Cra/wford, 3 Wall. 396; Petition of Crandall, 34 Wis. 177; In re- Pierce, 44 id. 411; S. & B. Ann. Stats, secs. 4046-4048; Bnmson v. Bwnett, 2.Pin. 185; In re Fisher, 15 Wis. 511. The petition and final order in the adoption proceedings reciting and finding as an affirmative fact the abandonment of the child by the plaintiff, the plaintiff is estopped from questioning the finding of the county court in that respect, in this, a collateral, action. The facts so alleged and found being .essential to the jurisdiction of the1 county court became res of judicata and cannot be questioned by the plaintiff in this action. Freeman, Judgm. sec. 248; Ward v. Price, 1 Pin. 101; Woodma/rd v. Hill, 6 Wis. 143; Wright v. Sperry, 25 id. 617; Heath v. Frackleion, 20 id. 320; Strong v. Hooe, 41 id. 659; Banaher v. Prentiss, 22 id. 311; Shepardson v. Cary, 29 id. 34; Iowa Co. v. Mineral Point R. Co. 24 id. 93; Hash v. Church, 10 id. 303; Tollman v. McCarty, 11 id. 402; Driscoll v. Damp, 16 id. 106; Arnold v. Booth, 14 id. 180; State v. Waupaca Batik, 20 id. 640; Van Pdt v. Kimball, 18 id. 362; Brown, Jurisdiction, sec. 4. The order of adoption conclusively establishes that it was a proper order to take effect. It cannot be collaterally avoided by showing that the petition and order of adoption were false. Van Fleet, Collateral Attack, sec. 61; Jackson v. Crawfords, 12 Wend. 533; Fitch v. Miller, 20 Cal. 382; Haynes v. Meeks, id. 288; McCauley v. Harvey, 49 id. 497; Freeman, Yoid Judicial Sales, sec. 14; Brown, Jurisdiction, sec. 60; Ryan v. Varya, 37 Iowa, 80 ;• Knox Co. v. Aspinwall, 21 HoW. 539; Evansville, I. c& C. S. L. R. Co. v. Evansville, 15 Ind. 395; Koehler v. Hill, 60 Iowa, 566; Slack v. Blackburn, 64 id. 375.</p> <p>The primary dominion and right of a father or parent may be lost or forfeited by the father or parent by neglect or abuse of the moral or physical welfare of the child. 2 Bishop, Mar., Div. & Sep. secs. 1163-1166; 2 Lawson, Rights, Rem. & Pr. sec. 816; State v. Smith, 6 Me. 462, 20 Am. Dec. 324; Cowls v. Cowls, 3 Grilm. (Ill), 435, 44 Am. Dec. 708; Miller v. Wallace, 76 Ga. 479, 2 Am. St. Rep. 48; Brooke v. Logan, -112 Ind. 183, 2 Am. St. Rep. 177, and note. Statutes authorizing adoption or other disposition of children found to be neglected by their parents or guardians are constitutional and humane. Milwaukee Industi-ial School v. Milwaukee Co. 40 Wis. 328; Farnham v. Pierce, 141 Mass. 203, 55 Am. Rep. 452; House of Refuge v. Ryan, 37 Ohio St. 197; Petition of Ferrier, 103 Ill. 36.7; Roth v. House of Refuge, 31 Md. 329; Ex parte Crouse, 4 Whart. (Pa.), 9. When the parents have abandoned their infant children and during such abandonment the care, custody, training, and education of the children have been transferred to another without legal formality, and the social, moral, and educational interests of the child will be best promoted by its remaining in the custody of the person to whom it was transferred when abandoned, the new custody will be treated as lawful and exclusive. Clark v. Bayer, 32 Ohio St. 299, 30 Am. Rep. 593; Bonnett v. Bonnett, 61 Iowa, 199, 47 Am. Rep. 810; Jones v. Darnall, 103 Ind. 569, 53 Am. Eep. 545. The petition for adoption alleges as the ground for the adoption the abandonment of the child by the plaintiff in 1884, and that the plaintiff has not been heard from since; and these allegations being found affirmatively by the county court, the plaintiff was not entitled to notice. Luppie v. Winans, 37 N. J. Eq. 245; In re O’Neal, 3 Am. Law Eev. 578.</p>

<p>APPEAL from the Circuit Court for Langlade County.</p> <p>This action is to recover damages for the failure of defendant to place an insurance on plaintiff’s property, as it is alleged he agreed to do, the property having been after-wards destroyed by fire.</p> <p>It is alleged in the complaint that in November, 1891, defendant, who was an insurance agent at Antigo, issued to plaintiff the policy of a certain company therein named, insuring him against loss by fire on his household property and effects, in the sum of $300, for one year, for which plaintiff paid defendant a premium of $10. That in March, 1892, plaintiff’s house took fire, but the fire was extinguished without loss. A few days later, defendant told plaintiff he thought some one was trying to burn him out, and advised him to remove to some other house; and two weeks later the plaintiff did so remove, taking the insured property with him. That thereafter he told defendant he desired to have his insurance transferred from the former to his latter residence, to cover the same property, and defendant told him to bring his policy and he would change it, and afterwards informed him that he had canceled the policy and would issue a new one; also, that he had placed the insurance, and the unearned premium on the policy would pay the premium on a new policy for the unexpired term of the original policy, and that he would write the policy and send it to plaintiff’s house. The complaint then proceeds as follows:</p> <p>“ That plaintiff was led to believe, by the promises and assurances given him* by the defendant, that his household furniture and personal effects, which had before that time .been covered'by insurance, were covered by insurance in a good company, as the defendant promised and agreed to do, and for which this plaintiff paid defendant. That the unearned premium on policy number 2,226,209, herein-before mentioned, was applied by the defendant in payment of the premium on the policy which defendant said- and promised plaintiff to write, and it was distinctly understood and agreed by and between the parties hereto at that time, to wit, in March, 1892, that the above-named defendant would insure and secure a policy of insurance for this plaintiff, upon his household furniture and personal effects, in the sum of three hundred dollars, in a good, responsible fire insurance company, and that the unearned premium, as hereinbefore stated, would pay for the premium upon said policy to run until the 14th day of Novem-. ber, 1892, and that there would be no further charge or expense attached to the same. That plaintiff, relying upon the promises and assurances of defendant, and believing that his personal property, as hereinbefore stated, was covered by a policy of insurance issued by the defendant as he promised and agreed to do, paid no further attention to his insurance mattel, and, as he had no other insurance upon said property, and having implicit faith and confidence in the honesty of this defendant, he paid no further attention to it, but believed in fact that the defendant had insured his property as aforesaid.”</p> <p>Loss by fire of the insured property, of the value of $800, May 14, 1892, without fault of plaintiff, and immediate notice thereof to defendant, and that defendant then informed plaintiff that he had not written the policy, and offered to refund the original premium paid by plaintiff, are alleged. It is further charged that “ the defendant negligently and carelessly omitted to have the property of this plaintiff insured, as he agreed to do, and for which he was paid by this plaintiff, and has absolutely refused since the time of plaintiff’s said loss to pay the same, and that in consequence of said fire, and the neglect and wilful misrepresentations of defendant, this plaintiff has sustained a loss of $300, being the amount which defendant said he would insure plaintiff’s property for, and for which he was paid.” Judgment for $300, interest, and costs is demanded.</p> <p>Defendant appeals from an order overruling a general demurrer to the complaint.</p> <p>To the point that no agreement binding on defendant is shown because no consideration is shown, they cited Mechem, Agency, sec. 478; Elsee v. Gotward, 5 Term, 143; Thorne v. Deas, 4 Johns. 97.</p>

<p>APPEAL from the Circuit Court for Polk County.</p> <p>On May 4, 1886, the plaintiff and the Minneapolis, Sault Ste. Marie & Atlantic Eailway Company entered into a -written contract to the effect that in consideration of one dollar paid to the plaintiff by the said railway company, the receipt whereof was thereby acknowledged, the said plaintiff did thereby give and grant to said company the right to purchase within one year from the date named, if it should so elect, a strip of land 200 feet in width, therein described, and also another strip of land 125 feet in width, therein described, which last-named strip was composed of two strips, therein described. And said written agreement also contained the following, to wit:</p> <p>“ If this option is accepted by the said company within the time above limited, then I agree to convey to it in fee simple the above described strip of land, by good and sufficient deed, with full covenant of seizure and warranty, and discharged of all dower and right of dower and other incumbrances, for and in consideration of the sum of three hundred ($300.00) dollars, to be paid therefor by said company on delivery of such deed.</p> <p>“ In consideration, as above expressed, I consent that said company and its officers, agent's, contractors, and subcontractors, and its and their and each of their servants, may forthwith enter upon said strip of land above described, and do all and any acts necessary to the construction of a railroad upon the above described strip of land; and agree that, if this option be taken by said company, said deed of conveyance shall release all damages to any other premises by reason of the taking of the above strip of land and the construction thereon of a railroad by said company.</p> <p>“ Said company may, within the time for accepting this option above limited, institute appropriate proceedings to condemn the above described strip of land, and in such cases, but not otherwise, shall be deemed to have thereby and thenceforth waived the right to purchase the same at the price herein stated.</p> <p>“ Prbvided, however, and this contract is executed upon the express condition, that should said company elect to •purchase the said belts or strips of land herein déscribed. in pursuance of this contract, it shall preserve substantially - as the same now exists the approach to the limekiln on said/' premises known as the ‘•Patent limekiln,’ and shall also-construct on some feasible place on said premises aside t/raokj. to be used by me.</p> <p>“This agreement shall bind the heirs, successors, personal representatives,’ and assigns ’of the parties thereto.</p> <p>“ Dated this fourth day of May, 1886.</p> <p>“ In .presence of Samuel x Wall [Seal.1</p> <p>“ Geo. D. McGill, mark</p> <p>“CHARLES H. CAREY.”</p> <p>In January, 1887, in pursuance of the'tends of said con- ■ tract, the said railway company, by its contractors, entered. upon said right of way designated in said contract* and ’ commenced the construction of its road upon and. along the same. On January 31, 1887, the said railway company.’ entered into an oral agreement with the plaintiff, whereby the plaintiff agreed to permit said railway company to fill up and permanently obstruct the private wagon road leading from the highway to said limekiln, and to aid said company in Securing a Vacation of said public highway, in consideration of which the said company agreed to construct for the plaintiff, on his land, a new and different wagon road to said kiln, on a line then agreed upon between the parties, which line commenced at a point near where the said right of way crossed the .south line of government lot 4, and on the northwesterly side of said railway track, and ran thence in a northeasterly direction near the northwesterly side of said right of way to said limekiln. By said agreement the parties intended to and did modify said written contract by substituting the agreement to construct said new road for the agreement to preserve the road leading from the highway to the'limekiln heretofore mentioned; but in so far as the written agreement provided. for preserving the track in use at the time of making said contract, leading from the vicinity of the limekiln to the top of said kiln, the same was not modified by said verbal agreement.</p> <p>In pursuance of said, contract as modified by said verbal agreement, the said railway company proceeded to build its railroad across said lands, and to fill up and permanently obstruct the old wagon" road referred to in said written contract, and expended in such construction across said lands the sum of $25,000. Said railway company and the defendant have ever since been, and still are, in possession of said right of way, and the same constitutes a part of the main line of the defendant’s road as now operated by it. During the construction of said road no objection was made by the plaintiff to the acts of the parties engaged in such construction, notwithstanding he had notice thereof, except that he objected to the filling up of the highway leading from the vicinity of said kiln to the top thereof, and objected to the workmen rolling down rock upon and around said kiln and upon and around buildings used in connection therewith. A large amount of rock was thrown down upon said kiln and around the same and said buildings by the workmen, whereby said kiln and buildings were considerably injured and rendered useless till such time' as the debris was removed, and the kiln and buildings put in a state of repair, and the way reopened to the top of said kiln. While the work of constructing the road across said lands was progressing the plaintiff repeatedly protested against the acts of the contractors in throwing down rocks in the manner stated, but was each time told that the debris would be removed, and the kiln and buildings repaired, as soon as the roadbed in the vicinity thereof was constructed.</p> <p>Within one year from the date of said written contract the said company duly declared its option to purchase the said right of way in pursuance of said written contract, and tendered to the plaintiff the sum of $300, and demanded of him a deed in pursuance of said written contract; but the plaintiff refused to receive said sum, or to comply with the terms of said contract, or to execute said conveyance. The company kept said tender good. The railway company graded said track, and notified the plaintiff that it- was ready to 'perform said written contract as modified; but the plaintiff, without any justifiable excuse therefor, refused to permit said company to do the same. The only reason why the said work was not then done was because of the plaintiff’s refusal to permit it to be done:</p> <p>In September, 1889, the plaintiff filed in the office of the clerk of the circuit court a petition for condemnation proceedings under the statutes. Upon the hearing of said petition the defendant answered, claiming to be the equitable owner in possession, and entitled to a deed of said right of way, and asked that the said petition be dismissed, for the reason that its rights could not be adjudicated in such summary proceedings,, whereupon it was stipulated by the parties thereto and hereto that said proceedings be stayed until this action could be brought and the rights of the parties hereto adjudicated, and an order to that effect was made accordingly. Thereupon the plaintiff commenced this action to set aside said written contract and said modification thereof, and to have the same declared null and void, and that all claim of the defendant to the possession or right, title, interest, equity, or lien in or upon said lands be forever absolutely determined; and alleging that the plaintiff was during all the time mentioned a married man, and living with his wife and family upon a portion of said lands as his homestead. On January 29, 1S90, the defendant answered said complaint, alleging in effect the facts stated, and also denying that any portion of the plaintiff’s homestead was included in said right of way, and also alleging the same as a counterclaim to said action, and praying judgment that the plaintiff be required to perform in all things the conditions of said written contract as so modified, and that he be required to execute and deliver to the defendant a deed of said right of way described therein, and that the plaintiff be required to specifically perform said contract so modified. The plaintiff replied to said counterclaim.</p> <p>Upon the trial of the issues so formed it was in effect found, in addition to the facts stated, that upon the trial of this action the defendant in open court consented that the westerly line of its right of way at said limekiln should be located so as to leave said kiln intact, with a sufficient space upon and on the east side thereof to allow the plaintiff a driveway to the top of said kiln, and to use and operate the same; that such offer was substantially in accordance with said written contract; that said offer concedes to the plaintiff all that he would be entitled to under the. most favorable construction of said contract, but that the court was unable from the evidence to determine, with sufficient definiteness to direct a conveyance of the right of way to the defendant, the line of said right of way as the same must be located in order to agree with said offer; that the evidence does not disclose any mistake of the parties in the location of the line of said right of way at the limekiln, but that it satisfactorily appears that it was understood by all the parties that said line was so located as to leave some portion of said limekiln in the defendant’s right of way, and it was agreed that the said right of way should nevertheless not interfere with the maintenance and operation of said kiln as the same then existed, and the proviso to said contract was intended to secure to the plaintiff the right to so maintain and operate said kiln; that the evidence does not show that any part of said lot was included in the plaintiff’s homestead at the time of making said contract.</p> <p>From the facts so found the court concluded that the work required to be done under the proviso to said contract as modified was not a condition precedent to the right of the defendant to a deed to said right of way; that the acts of the plaintiff constituted a waiver of the conditions of said proviso, at least so far as the performance of such conditions would require a greater expenditure of money than would have been required if the plaintiff had permitted the work to be done when the railway company’s contractors were on the ground; that the said oral agreement, so far as it modified the written contract, was a valid and binding agreement, and that the written contract as so modified was a valid, subsisting, and binding contract between the parties; and that the defendant, on doing what was therein equitably required of it, was entitled to have said contract specifically performed by the plaintiff.</p> <p>Thereupon the said court referred said cause to a referee to ascertain certain matters therein mentioned, but, upon the report of the referee being made and filed, it satisfactorily appeared by an inspection thereof that said referee did not follow the order of reference, and that his findings were erroneous, and accordingly the findings of said referee were set aside and vacated. The parties hereto then submitted the questions referred to said referee to the court for determination upon the evidence taken before said referee and other evidence taken in court, and the court found, in addition to what had previously been found, as matters of fact, that the correct description of the westerly line of the right of way of the railway company at the limekiln, locating the same around and east of said kiln, so as to leave said kiln outside of said right of way, with a sufficient space around and upon the east side thereof to enable the plaintiff; to use said space as a driveway to the top of said kiln, was and is as therein described, and traced with a red line upon the blue print attached to said findings. And it was ordered that the line of said railway company’s right of way in the vicinity of said limekiln be established as above set forth. The court further found that it would have cost the company to have constructed the new road to the limekiln as mentioned, and to have restored said roadway, remove the rocks thrown down upon said kiln and the buildings in connection therewith and around said buildings and kiln, and to put said kiln and buildings in substantially as good state of repair as they were at the time of making said written contract, if the railway company had been permitted by the plaintiff to have done the work before defendant’s contractors left the premises, the sum of $1,200; that the plaintiff was only equitably entitled to that sum from the defendant as a condition of the performance of said written contract as so modified; that the defendant was willing that said road should be constructed inside of its right of way from the crossing of the main track near the side-track northeasterly for a distance of about 400 feet, passing off said right of way onto the plaintiff’s land outside of said right of way, and that the road can there be constructed at much less expense than oh a line wholly outside of said right of way, and that the said road so constructed inside said right of way for a distance of about 400 feet will fully satisfy said plaintiff’s needs and comply with said agreement for said new road from the side track to the limekiln; that all equitable considerations demand that the new road be located on the line specified, requiring the least'expense, and that the sum which the defendant should be required to pay as a condition of the plaintiff’s performance of said contract should be limited to what it would have cost the railway company to have constructed said new road 'bn 'said less expensive route; that if there was anything in- the former findings therein in conflict with such determination, the same were thereby modified accordingly. And it was ordered that the findings theretofore filed, as modified and corrected by these findings and conclusions, should constitute the measure of the rights and liabilities of the parties herein.</p> <p>On June 15, 1892, the defendant ‘deposited with the clerk of the trial court the said sum of $1,200 for the upe of the plaintiff, in accordance with the said findings of the court therein filed with said clerk, May 11, 1892.. On November 22, 1892, it was ordered that the plaintiff be required within thirty days from and after the service of a Copy of this order on him and his attorneys, to execute and deliver to the defendant a deed conveying to it the right of way for its railroad through the said lands of the plaintiff according to said contract, except that the description of the west line of said right of way at and in the vicinity of the plaintiff’s limekiln mentioned, should be as described and as indicated by the said red line on the map constituting a part of the record. From the judgment entered accordingly the plaintiff appeals.</p> <p>They contended, inter alia, that the contract was a mere option, which conferred no interest either legal or equitable in the land. The right of purchase, to be made available, must have been exercised at or within the time specified in the agreement, and the conditions precedent, if any, must be faithfully observed. Equity cannot relieve from nonperformance of terms and conditions, however arbitrary, imposed on the right to exercise an option to purchase. Lombard v. Sinai Congregation, 64 Ill. 477; Sutherland v. Parkins, 75 id. 338; Bostwiek v. Hess, 80 id. 138;' Longfellow v. Moore, 102 id. 289; Chappell v. MeKnight, 108 id. 570; 1 Warvelle, Vendors, 187.</p>

<p> Public lands: Pre-emption of land within limits of city: Judicial notice. </p> <p>1. Judicial notice will be taken of the fact that lands sought to be acquired under the pre-emption laws of the United States were within' the corporate limits of a city, and not subject to pre-emption, under sec. 2258, R. S. of U. S.</p> <p>2. The act of Congress of March 3, 1877, providing that “ the existence or incorporation of any town on the public lands of the United States shall not be held to exclude from pre-emption ... a greater quantity than 2,560 acres of land,” does not apply to a city laid out mostly on private lands but including some of the lands of the United States.</p>

<p>APPEAL from the Circuit Court for Douglas County.</p> <p>The plaintiff brought his action against the defendant, a railroad corporation engaged in a general switching and transfer business at "W est Superior, to recover damages for injuries caused to the plaintiff by the alleged negligence of the defendant while the plaintiff was walking on its track, rendering the amputation of the plaintiff’s left foot necessary 5 the specific charge of 'negligence being that while the plaintiff, as licensee, was walking on the track, an engine of the defendant backed down on him -without giving him any warning, and that the persons in charge of the engine failed to keep a lookout for persons on the track, though said track was and had been used for a long time by pedestrians in going to and returning from various ' points, and with the assent of the defendant. The jury found a special verdict to the effect that the people, for a considerable length of time prior to the accident, had been accustomed to travel on the defendant’s tracks, between the rails, at the point in question, to the knowledge and with the acquiescence of the defendant in such use of its track by the public; that there was a want of ordinary care on the part of the defendant’s servants in charge of the engine at the time the plaintiff was injured, which was the proximate cause of the injury; and that there was no want of ordinary care on the part of the plaintiff, contributing thereto,— and assessed the plaintiff’s damages at $6,000, upon which he had judgment, from which the defendant appeals.</p> <p>The principal contention of the defendant is that the circuit court erred in not directing the jury, as requested, to find that the proximate cause of the accident was the negligence of the plaintiff, and that the court erred in not granting a new trial. The evidence of negligence on the part of the defendant, in not keeping- a lookout, and in not ringing a bell or signaling the approach of the engine, was such as to clearly' require the submission of that question to the jury, and so, too, as to the question of license and acquiescence by the defendant in the passing and re-passing of the public over and along the switch tracks in question, and showed that various parties, mainly laborers and members of their families, were accustomed to come upon these tracks at different points, and walk on and along the tracks to various other points,— so much so that upon the track near where the plaintiff was injured there was, quite a path worn between the rails by pedestrians, and that the ground on either side was incumbered so that it was inconvenient to walk outside of the track in very many places.</p> <p>The principal track extended northerly from Second street, along Tower Bay slip, across North First street, to the point where the plaintiff was injured, a distance of 1,050 feet, and from thence north to the smelting works, a further distance of more than 1,100 feet, and the track was open to full view from 150 feet south of where the injury occurred to the north end of it, and was without material grade, though there were a few buildings along the track in the neighborhood of the point where the injury occurred.</p> <p>The plaintiff was a common laborer, familiar with the ground and location of the tracks, and familiar with the manner in which the premises, which were the private property of the defendant, were used. On the morning in question he went down Tower Bay slip, along the track, to a point where a boat was unloading, in quest of employment, but failed to get any. Then he went back upon the track, and was walking south on it towards the south end of the Adamant Works, when he met the defendant’s train, consisting of a locomotive and tender and about six freight .cars, passing on its way north, and he stepped off the track, and it passed him. Shortly after he stepped back upon the track, when he looked up towards the north, in the direction of the engine, and saw that it was about 300 feet from him, and apparently still going north, and thought it was going up to the smelting works, which is a considerable • distance further to the north, or at the end of the track. He stepped back upon the track, and continued his journey towards the south. Near the point where he stood there was a switch and a side track-480 feet long. The plaintiff testified, in substance, that when he started to return south upon the track the train was about 300 feet north of him, and he thought it was still going further north; that he is not sure whether it was on the main switch track or side track; that the locomotive was at the south end, pushing it north, with its head in that direction, and its rear end towards him; that he looked to see if the engine had stopped when he stepped on the track to go south, and walked right down the middle of the track about 75 or 100 feet to where there was a small pile of lumber, when he looked around and saw the train was close upon him; that he then tried to jump off the track, but before he got his left foot over the wheels struck him, and cut his foot off; that he was going south, the same way the train was, with his back towards it; that he was expecting the train might come back, so he was listening to hear whether the bell rung or not, and that is the reason he knows it did not ring; that the switch engine had a tank on the back of it, and a foot-board or place to stand, and a railing for men to take hold of. The engineer told him when the train stopped, about 142 feet south of where he was injured, that he did not see him.</p> <p>The switchman having charge of the crew testified that he was standing on the footboard between the engine and the cars at the time, and did not see the plaintiff; that the engineer could not see a man on the track back of him, on account of the tank, the top of which is seven or eight feet from the ground, unless he was twenty-five feet away; that the train was not going more than three or four miles an hour at the time of the accident. -Another of the crew testified that he did not see the plaintiff before he was hurt. This witness did not know whether the bell was rung or not, but the fireman testified that he rang the bell. There was nothing to obstruct the view from a point 140 feet south of where the plaintiff was injured to the north end of the tracks. No one saw the plaintiff until after he was hurt, and there was no lookout on the footboard of the tank. The switch to the side track is eightyrseven feet north of the place of the accident, and a little south of where the plaintiff testified he got on the track to walk south, and the engine was 300 feet north of there at the time, going, as he supposed, to the smelting works, near the north end of the track. But there was evidence tending to show that the engine did not go north of this switch, and the testimony of the plaintiff may properly justify the inference that the train came south at a much greater rate of speed than four miles an hour.</p> <p>Exception was taken by defendant because the court instructed the jury that, “ in backing the engine, it was the duty of the defendant’s servants to keep a lookout in the direction the engine was moving, and use ordinary care to signal the approach of the engine to any person it had reason to expect might probably be walking on the track, and to be ready to give such signal as the necessity therefor should arise.”</p> <p>They contended, inter alia, that the contributory negligence of the plaintiff was the proximate cause of the accident. A person walking upon a railroad track must take notice that trains are liable to be passing at any time, and if he has reason to expect a train it intensifies his negligence if he fails to look and listen. If he goes upon a track while used for switching purposes, he should exercise every precaution before going on. the track and should continually look and listen while on the track. This being the rule where the track is on a public highway, giving the pedestrian equal rights with the railroad, how much more must it be so where the traveler is a mere licensee upon yard tracks used continually for switching purposes, and where the licensee assumes the risks incident to the business carried ón and the manner in which it is conducted. Biehards v. O., St. P. & K. O. B. Co. 81 Iowa, 426; Olson v. O., M. <& St. P. B. Go. 81 Wis. 41; Flynn v. Eastern B. of Minn. 83 id. 238; Sehmolse v. O., M. & St. P. B. Co. id. 659; Graf v. G. <& N. W. B. Go. 94 Mich. 519; v Bailroad Go. v. Houston, 95 U. S. 697; Mamey v. Mo. Pac. R. Go. 113 Mo. 1; Atchison, T. da 8. F. R._ Go. v. Priest, 50 Kan. 16; Marland v. P. db L. JS. R. Go. 123 Pa. St. 487; Moore v. P., W. db B. R. Go. 108 id. 349; Penn. R. Go. v. Bell, 122 id. 58; Taylor v. B. db H. Oanal Go. 113 id. 162; Myers v. B. db O. R. Go. 150 id. 386.</p> <p>They argued, among other things, that defendant had notice that large numbers of people were in the habit of using this track as a pathway, and it was its duty to provide a careful lookout in the direction the train was moving. The train was being recklessly pushed down the track, at an unlawful rate of speed, without the bell being rung or the whistle blown, or any lookout of any kind observed. Under such circumstances the company was guilty of gross negligence. Whalen v. G. da N. W. R. Go. 75 Wis. 659; Bohan v. M., L. S. d; W. R. Go. 58 id. 30; Reddles v. G. db H. W. R. Go. 74 id. 239; S. 0. 77 id. 228; Townley v. O., M. db St. P. R. Go. 53 id. 634; Butler v.' M. da St. P. R. Go. 28 id. 487; Ewen v. O. db H. W. R. Go. 38 id. 613; Johnson v. G. & N. W. R. Go. 56 id. 279; Farley v. G., R. I. da P. R. Go. 56 Iowa, 337; Frióle v. St. L., K. O. db H. R. Go. 5 Mo. App. 435; Gheney v. H. Y. G. db H. R. R. Go. 16 Hun, 415; Battishill v. Humphreys, 64 Mich. 514. The plaintiff was a licensee and not a trespasser, and it was not unlawful for him to use the track as others had been accustomed to. use it. Whalen v. G. de H. W. R. Go. 75 Wis. 645; Havis v.. G. c& H. W. R. Go. 58 id. 646; Hooker v. O., M. db St. P. R.. Go. 76 id. 542; Townley v. G., M. db St. P. R. Go. 53 id. 636 Delaney v. M. db St. P. R. Go. 33 id. 67; 111. Gent. R. Go. v. Hammer, 72 Ill. 347; Murphy v. O., R. I. da P. R. Go. 45 Iowa, 661; S. G. 38 id. 539; Harty v. Gent. R. Co. 42 K. T. 468; Brown v. II. db St. J. R. Go. 50 Mo. 461; Kansas P. R. Go. v. Pointer, 9 Kan. 620; S. G. 14 id. 38; Kay v. Penn. B. Co. 65 Pa. St. 269; Penn. B. Go. v. Lewis, 19 id. 38; Daley v. JL. <& W. B. Go. 26 Conn. 591; Dublin, W. á W. B. Co. v. Slattery, 3 App. Oas. 1155.</p>

<p> Deed: Relation to date of contract: Replevin. </p> <p>A deed will not relate back to the date of a contract for the sale of the land so as to prevent the vendor, who retained possession until delivery of the deed, from maintaining replevin against a mere trespasser who wrongfully cut and removed timber from the land after the date of the contract but before the consideration was paid or the deed delivered.</p>

<p> Insurance against fire: Limitation of action on policy. </p> <p>1. Where an insurance policy provides that no action thereon for the recovery of any claim shall be sustained “ unless commenced within twelve months next after the fire,'” the time limited begins to run from the date of the fire, and not from the time when the liability is fixed and the right of action accrues.</p> <p>S. Such a provision is not within the meaning of sec. 1975, E. S., which forbids the insertion in any policy of any provision “ that no action or suit shall be brought thereon.”</p>

<p> Carriers: Injury to horses'tlvrough delay in unloading. </p> <p>Where a railroad company, through its freight agent, contracted to carry horses to a point a few miles distant and to unload them the same evening, it is liable for damages resulting from its failure so to unload them, although the conductor of the train on which they were shipped told the shipper, a few minutes before the train started, . that he did not think they could be unloaded that night.</p>

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>The plaintiff is a corporation of the state of Michigan, and a dealer in lumber and timber at Cedar Eiver and Spaulding in that state. The defendants are partners, doing business in Lincoln, Ueb. This action is to recover the contract price of forty-nine car loads of cedar paving posts shipped by plaintiff to defendants, and received by the latter at Lincoln.</p> <p>In August, 1888, the parties entered into a contract ■whereby it was agreed that plaintiff should ship to defendants at Lincoln from five to ten car loads of cedar paving posts, to be there inspected by defendants, and if they proved satisfactory the defendants agreed to take of plaintiff forty car loads of such posts. The price agreed upon was thirty cents for each post six inches in diameter and eight feet long, and in that proportion for posts of greater or less length and diameter, according to a well-established trade schedule of relative prices therefor upon the basis of thirty cents each for' six-inch by eight feet posts.</p> <p>The plaintiff alleges, and gave testimony tending to prove, that in September following, and after several car loads of posts had been shipped to defendants under such contract, the parties modified the contract, and agreed upon the price for the posts, to be .delivered on the cars at Spaulding, as well for those which had already been shipped as those which should thereafter be shipped. Such new agreement fixed the price at the place of shipment, to wit, at Spaul-ding, Mich., net on board the cars, of all five-inch posts eight feet long and over, at fifteen cents each, and also for sizes of less length or diameter, as follows: four inches by seven feet, seven and one-half cents each; four inches by eight feet, eight and one-half cents; five inches by seven feet, twelve and one-half cents,— the inspection to be made at Lincoln. Also that defendants caused the posts to be inspected at Lincoln, and furnished the plaintiff with a •statement of the result of such inspection.</p> <p>The cause was referred to a referee to hear, try, and determine the same. It was tried before such referee, who found that the contract was modified as claimed by the plaintiff, and that the defendants had the posts inspected at Lincoln and furnished the plaintiff the report of such inspection. The referee adjusted the account between the parties- on the basis of the modified contract and such inspection report, finding that the report was correct, and found that the defendants were indebted to the plaintiff for the contract price of the posts thus shipped to them (rejecting culls), and for interest on such price, $4,007.41. The circuit court .confirmed the report of the referee, and gave judgment for plaintiff for the amount thus found to he due it from- the defendants.</p> <p>The defendants appeal from the judgment.</p>

<p>APPEAL from the Circuit Court for La Crosse County.</p> <p>The facts are stated in the opinion. Rockwell E. Osborne, a trustee appointed by the county court of La Crosse county to execute a trust created by the will of Harriet A. "Wells, deceased, appeals from the judgment of the circuit court reversing the judgment of said .county court allowing a certain item in his account as such trustee.</p> <p>They argued, among other things, that under sec. 4027, E. S. (providing that “ the estate so given shall vest in like manner, to all intents and fur foses, as it vested in the original trustee ”), a trustee appointed by the court has the same powers, discretionary as well as ministerial, as the trustee appointed by the will. Gary, Probate Law, sec. 730; Perry, Trusts, sec. 503; Leggett v Hunter, 19 FT. T. 445.</p> <p>contended, inter alia, that this is a case of a trust with a power annexed. The trust as to the “ interest and income ” is absolute, but the language employed in reference to the principal of the fund creates a mere fower. Perry, Trusts (3d ed.), secs. 20, 114, 248, 253, 505-508; Story, Eq. Jur. sec. 1070; Pomeroy, Eq. Jur. sees. 834-1002; Tainter v. Clark, 13 Met. 220-225; Lain v. Matteson, 54 H. Y. 663-667; Sugden, Powers, sec. 183; Lines v. Da/rden, 5 Fla. 51; Greenough v. Welles, 10 Cush. 576; Eldredge v. Llea/rd, 106 Mass. 582; Cole v. Wade, 16 Yes. Jr. 27. Sec. 4027, E. S., simply confers upon the probate court the same power and jurisdiction which courts of equity always possessed in cases involving testamentary trusts.</p>

<p> Life insurance: Legality of contract, when immaterial after payment: Construction: Guardian's accounting: Laches. </p> <p>1. A married woman having procured insurance upon the life of her husband “ for the sole use of ” herself and his children, and the company, after his death, having voluntarily paid the amount to her and the guardian of the children, the question whether the company, under its charter and the law as it then existed, had the power to issue to a married woman a policy other than one payable to herself alone in case she survived her husband, is immaterial in a proceeding on behalf of the children to compel the guardian to account for the money so' received by him.</p> <p>2. The policy in such case having in terms provided that the insurance should be paid to the widow and children, and having received a practical construction accordingly by all parties, the court will not consider, in the proceeding against the guardian, whether, construing together the policy and the charter of the company, the insurance was not payable to the widow alone.</p> <p>3. There haying been no designation in the policy of any inequality in the shares which the widow and children should receive, they were all entitled to share equally.</p> <p>4. Although the guardian had in good faith turned over the whole of the insuranco money to the widow, he was bound to account to his wards for their shares thereof; and he was not entitled to be credited with their support furnished gratuitously by the widow, their mother, with no intention of charging therefor.</p> <p>5. Neither the statute of limitations nor any bar in analogy thereto — such as laches — would apply to the claim of the wards against the guardian, unless the full period of limitation, had elapsed after the guardian’s denial or repudiation of the trust.</p>

<p> Vendor and purchaser of land: Fraudulent representation as to title: Rescission. </p> <p>1. A mere reference by a vendor to the property as “my land,” in gen- ' eral conversations with the vendee, not shown to have had any reference to the proposed purchase, is not such a fraudulent representation of good title as will support an action to rescind the sale upon failure of title, even though the vendee may testify that he relied thereon.</p> <p>2. Where a contract for the sale of land has been executed by delivery of the deed and payment of the purchase-money, and there is nothing to prevent the purchaser from taking possession, there can be no rescission, in the absence of fraud, even though the title fails. The remedy is on the covenants of the deed.</p>

<p>APPEAL from the Circuit Court for Douglas County.</p> <p>Ejectment to recover three lots in the city of Superior. The complaint describes the property as situated in Douglas county, and “ known as lots 194, 196, and 198 West Sixth street, in the city of Superior, and upon the town site of Superior as the said town site of Superior has been surveyed and platted and the plat thereof recorded in the office of the register of deeds for said Douglas'county.” The plaintiff’s title rested on a tax deed from Douglas county, dated December 3,1866, and duly recorded on the same day. It was admitted on the trial that the land in question was vacant from the time of the recording of the tax deed until July, 1891, when defendants took possession. It was also admitted on the trial that the original owner of the lots in question did not pay any taxes thereon for more than four years next preceding the recording of the tax deed, and that the grantee in the tax deed paid all taxes on the lands since the recording of the tax deed, and 'for more t.K u three years thereafter, and that the title of said grantee has been duly conveyed to the plaintiff.</p> <p>The tax deed was introduced in evidence, against the objection- that it was not fair on its face and did not describe the lands described in the complaint. It is not deemed necessary to insert the deed in full. The description contained in the deed is as follows:</p> <p>“ The following described pieces or parcels of land lying and being in the county of Douglas, state of Wisconsin, to wit:</p> <p>West Sixth street, lots 194; total amount, $10.56,</p> <p>196; $10.56,</p> <p>198; $10.56,</p> <p>— in the town of Superior.”</p> <p>The action was tried without jury, and the court, after finding, among other things, the facts above set forth, substantially found that the tax deed was fair on its face; also as follows: “ that the lots in question were in the towTn of Superior at the time of the assessment of said taxes and at the time of said tax sale; and, as indicated by the description, were tracts of land in a platted town site in said town of Superior, which has since been included within and forms a part of the territory within the city of Superior. There being no proof that any other descriptions of land designated as ‘lots 191,196,198, West Sixth street ’ existed in said town of Superior at the time of the assessment of taxes and the tax sale upon which said tax deed was based, the presumption arises, and I find the fact to be, that the lands described in the complaint and the lands described in said tax deed are identical, and that the description, as contained in said tax deed, is definite and unambiguous. That the various statutes of limitation of this state applicable to this case to bar any claim of the original owner to the premises in question as against the plaintiff’s title under said tax deed, were properly pleaded by plaintiff, and he insisted upon the trial that all claims on the part of the defendants as against his title under said tax deed are barred by the statutes of limitations of this state, applicable to the subject.”</p> <p>As conclusions of law the court found that the deed was not void for uncertainty, but was valid; that the statutes of limitations are a complete' bar to defendants’ claim of title, and that plaintiff is the owner in fee of the lands described in the complaint. From judgment on the finding, defendants appeal.</p>

<p>APPEAL from the Circuit Court for Jackson County.</p> <p>This is an appeal from a judgment against the defendant upon the agreement set out in the case of Taylor v. Goon, 79 Wis. 78, 79, in which case the complaint was held “ fatally defective, in that it did not aver that the plaintiff had paid the obligations upon which he was indorser, or had suffered any loss or damage by reason of his indorse-ments.” 79 Wis. 86. A former action had also been brought by the plaintiff against the defendant, the complaint in which was defective for the reason above mentioned, but the defendant had answered it, setting forth various defenses and counterclaims, to certain of which counterclaims the plaintiff demurred for want of sufficient statements of fact to constitute counterclaims, etc., and for other reasons. After the decision of this court in Taylor v. Goon, supra, the circuit court “ sustained the demurrer as a demurrer to the complaint,” and adjudged it “ to be insufficient, as not stating facts sufficient to constitute a cause of action,” and final judgment was given in favor of the defendant on said demurrer, reciting, among other things, that the court “adjudged that the said demurrer reached back to. the complaint, . . . that the complaint fails to state facts sufficient to constitute a cause of action, and that the defendant is entitled to judgment sustaining said demurrer as a demurrer to said complaint,” etc.; and judgment of dismissal of the complaint followed.</p> <p>The complaint in this action was the same as that in the former case, with the allegation added that the plaintiff had paid the notes of the Hudson Lumber Company in full, so indorsed by him and mentioned in the complaint, amounting to $19,000, for want of which allegation his former complaint had been dismissed.</p> <p>The defendant set up various defenses and counterclaims, the matters relied on being:</p> <p>First. That the judgment in the previous action was a bar to the present complaint.</p> <p>Second. That the plaintiff presented the paper in question, which it had been agreed was to be signed by all the stockholders of the Hudson Lumber Company, to him for signature, requesting him to sign it,- that the plaintiff represented to the defendant that all of said stockholders were going to sign it, and the defendant said that he would not, unless it was so signed; that it was understood that, unless all of said stockholders signed it, it would not be binding upon any of them or this defendant, and the plaintiff promised him that, if he signed it, it should not be of any force or effect until signed by each of said stockholders ; that, relying upon these assurances and statements, he signed the same; that D. C. Hill, D, C. Davis & Sons, and George E. Jones, who were stockholders in all to the amount of eighty-five shares, and were men of means and financially responsible, were not requested to, and did not, sign the same.</p> <p>Third. That the plaintiff, since more than a year prior to the execution of said agreement, had been president, one of the directors, and general manager of all the business and affairs of the company, and that he had been guilty of disregard of the duties of his trust, and through his neglect, inattention thereto, and gross mismanagement on his part, the capital stock of the company, which was fully paid in, had been dissipated, lost, and wasted, except that he had applied funds and property of said company in payment of debts of said company contracted by him, and for which he had become liable, but not covered by the agreement set forth in the complaint, leaving unpaid the notes mentioned in said complaint; that it was his duty to have applied said funds to the payment of the notes upon which the plaintiff became liable as indorser, and claimed to have been within the terms of the agreement on which the action was founded; that the funds of the said corporation had been used by the plaintiff in paying off debts and liabilities incurred by him without its knowledge or consent or that of the board of directors, so that the burden of paying the notes mentioned in the complaint was wrongfully and unjustly attempted to be cast' upon the defendant and other stockholders who signed said agreement.</p> <p>Fourth. Ry way of counterclaim, that as such president the plaintiff took exclusive control and management of the business, affairs, property, and funds of the company, and ignored its board of directors, and assumed the powers and. functions of said board, and made contracts and improperly incurred debts to the amount of $50,000, without any authority from the company, and charged that the plaintiff had converted to his own use, as such, property of the company to the value of $30,000; that he had made false and misleading reports and statements to' the stockholders, to their great detriment, and that in 1883, though said company was insolvent to the knowledge of the plaintiff, he concealed that fact from the other • stockholders, and declared and paid a dividend of five per cent, on the stock, without the authority of the board of directors; and prayed, among other things, that the plaintiff be declared and compelled to render an account of all his doings and transactions, and to apply said money and property to pay off the notes mentioned in the complaint, and to make good the losses of the company sustained as aforesaid.</p> <p>Fifth. By way of counterclaim, that the plaintiff is the holder of $10,000 stock in the Hudson Sawmill Company of Hudson, Wis., which became a purchaser of the real estate of the Hudson Lumber Company; that said stock was paid for by plaintiff out of the property of said lumber company, without defendant’s knowledge or consent, while the plaintiff was such president, director and general manager, and that said stock ought to be adjudged to be held by him in trust to be sold to apply in payment of the notes mentioned in the complaint; that the plaintiff lives in Washington, D. C., and defendant has repeatedly and in good faith demanded the board of directors of the Hudson Lum-' ber Company to bring an action in the name of the said company against the plaintiff for an accounting in respect to all the matters aforesaid, and to recover from the plaintiff the loss and damage sustained by him by reason of such alleged negligence, misconduct, and breach of trust, and to recover from him the value or the proceeds of the property so converted to his own use, as well as the value of said stock so obtained and received, or so much thereof as might be necessary, to be applied in payment of the notes mentioned in the complaint, but this the board of directors refused to do; that the said stockholders are under the control and direction of the plaintiff, and decline and refuse to act; that the Hudson Lumber Company is an insolvent corporation, and primarily liable on said obligations; that it is necessary for the protection of defendant to have the benefit of the claims existing in favor of the corporation against said Taylor; that the Hudson Lumber Company is a necessary party to the action, without whose presence a complete determination of the controversy cannot be had; and that the defendant is the owner of fifteen shares of the stock of the corporation, and the total number of shares is 500, of the par value of $100 each.</p> <p>It was also contended that, as the plaintiff accepted an increase of salary of $600 per annum as a consideration for indorsing the paper of the Hudson Lumber Company, he had no right of recourse against the company nor upon the obligation on which the action is brought.</p> <p>Application was made to the court for an order to bring in the Hudson Lumber Company as a party defendant, but the court denied it, and the defendant appealed from the order.</p> <p>It appeared that the plaintiff ceased to do business as president and manager of the company in October, 1889, and it was then resolved by the stockholders that the company close its operations, sell out and convey its property, and apply the proceeds, or so much as might be necessary, to the payment of the company’s indebtedness, and appointed Amos E. Jefferson as its agent to represent the company in negotiating the sale of its property, real, personal, and mixed, upon such terms as to price, etc., as he should, in his discretion, deem for the best interests of tho company, and he was authorized and requested to apply the proceeds to the payment of the indebtedness of the company. This appears to have been adopted immediately after the plaintiff presented a statement of the resources and liabilities of the company and of its business of the then past year.</p> <p>The court found that the defendant, for a good and valuable consideration, made and delivered the instrument in writing mentioned and set forth in the complaint, without any condition being attached to such delivery; that the plaintiff, in reliance on said written instrument, indorsed notes and paper of the Hudson Lumber Company mentioned, to a large amount, and on the 5th of February, 1890, he was liable as such indorser for its benefit for the full sum of $19,000; that he was called upon to pay, and did pay, that sum on such paper out of his own personal funds; that he then had no money or funds in his hands or under his control belonging to the said company with which he could have paid said sum or any part thereof, and the Hudson Lumber Company was then insolvent and had no money, property, or funds with which to pay said sum; that the $19,000 was borrowed by the plaintiff for said Hudson Lumber Company without any vote, either by its directors or stockholders, but that said directors and stockholders had acquiesced in and ratified such action on the part of the plaintiff; that D. C. Hill, D. C. Davis & Sons, arid G. E. Jones, owners of shares of stock in said • Hudson Lumber Company, did not sign, nor were they requested to sign, the agreement; that the plaintiff was president and general manager of its business affairs, as claimed; that the plaintiff did not release the defendant from the obligation incurred by signing and delivering the instrument set forth in the complaint; that the defendant was the owner of fifteen shares of stock of the 500 shares of the company, and his proportional liability for said $19,000 was $507, with interest from February 5, 1890, amounting to $687, for which sum judgment was given;</p> <p>Such other facts as are material appear in the opinion.</p> <p>To the point that the former judgment is a bar to this action, they cited Bissell v. Spring Valley, 124 U. S. 225; Alley v. Hott, 111 U. S. 472; Lamb w. McConkey, 76 Iowa, 47; Olemins v. Clemins, 37 N. T. 74; Cutler v. Wright, 22 id. 474; Carlin w. Brackett, 38 Minn. 307; 1 Herman, Estoppel, secs. 122, 123, 125; 21 Am. & Eng. Ency. of Law, 216; Oregonian H. Go. v. Oregon R. dé N. Go. 27 Eed. Rep. 283; Owtram v. Mórewood, 3 East, 358; Qreatherd v. Bromley, 7 T. R. 455; Henderson v. Henderson, 3 Hare, 115; Stafford v. Ola/rk, 2 Bing. 382; Miller v. Govert, 1 Wend. 487; Bagot v. Williams, 3 Barn. & 0. 241; Roberts v. Heim, 27 Ala. 678; Ellis v. H. P. R. Go. 80 Wis. 459; Edgar v. Buok, 65 Mich. 356; Bouchamd v. Dias, 3 Denio, 244; Perkins v. Moore, 16 Ala. 17; Robinson v. Howa/rd, 5 Cal. 428; Aurora Gity v. West, 7 Wall. 99; Beloit v. Morgan, id. 619; Goodrich v. Chicago, 5 id. 573; Thompson v. Myrick,. 24 Minn. 11; Hams v. Harris, 36. Barb. 88, 94; Embury v. Conner, 3 N. Y. 522; Richards v. Allis, 82 Wis. 509; Wilson v. Ray, 24 Ind. 156; Nispel v. Paparle, 74 Ill. 306; Ruegger v. I. c& St. L. R. Go. 103 id. 449; Vanlandingham v. Ryan, 17 id. 25; Gollims v. Bewnett, 46 N. Y. 490; Jacobson v. Miller, 41 Mich. 90, 99; Lampen v. Kedgewin, 1 Mod. 207; Smith u. Hornsby, 70 G-a. 552; Yan Yleet, Collateral Attack, 29. By accepting an increase of salary on account of his being responsible for the money borrowed, plaintiff rendered himself personally liable for the entire amount, and thereby released this defendant. More v. Hoviland, 4 Denio, 264; Elwell v. Ghamberlin, 31N. Y. 611; Tyler, Usury, 95; Brandt, Surety-ship, 235, 236; Oakley v. Boorman, 21 Wend. 588; Eetchum v. Barber, 4 Hill, 224, 235; Cooper v. Page, 24 Me. 75; Silvey v. Dowell, 53 Ill. 260.</p>

On January 6, 1890, the plaintiff recovered a judgment against the defendant Julius M. Jorges in a bastardy action, in the municipal court of Dane county, in which it was adjudged that said Julvus M. pay to the plaintiff $250 forthwith and certain yearly payments thereafter. That judgment was duly docketed by and with the clerk of said court.

In attempted compliance with ch. 54, R. S., and the several acts amendatory thereof, the supervisors of the town of Hebron made and filed in the office of the town clerk of that to.wn an order laying out and establishing a town ditch therein, located partly upon the lands of the relator, August Witte. He thereupon sued out a writ of certiorml, directed to such clerk, to remove the order and proceedings of the supervisors into the circuit court for review.

Action for trespass quare clausum. The facts are stated in the opinion. The appeal is from an order denying a motion that the plaintiffs be required to make the complaint more definite and certain. To the point that the complaint states but one cause of action, they cited, besides cases cited in the opinion, 2 Greenl. Ev. secs. 268, 635a; 2 Chit. PI. 863-4, 866; McCall’s Forms, 249, 218; Root v. Foster, 9 How.

This action was commenced October 29, 1890, for unlawfully and with force breaking and entering upon the S. E. J of the N. W. \ of section 22, township No. 4 N., of range No. 10 E., and cutting down and destroying one rod of the plaintiff’s fence and one gate upon the plaintiff’s said lands and possessions, September 19, 1890, and at divers other times, to the plaintiff’s damage in the sum of $100.

This is a condemnation proceeding instituted December 30, 1892, by respondent company, under sec. 1852, E. S., to acquire title to a strip of land across appellants’ lots, in Janesville, upon which respondent built a spur track in the year 1890, and has ever since operated the same. This spur track was built to reach certain mills and manufacturing institutions in Janesville, and was authorized by the provision of ch. 216, Laws of 1883 (S..& B. Ann. Stats, sec. 1831a).

This action was commenced September 25,1891, in a justice’s court, to recover $90.80, the alleged value of a car' load of hay purchased of the plaintiff by the defendant.

<p>APPEALS from the Circuit Court for Dodge County.</p> <p>One of these actions is founded upon three promissory notes signed by defendant W. J. Tidyman, for $125, $500, and $700, respectively, the first one being dated October 15, 1887, payable to Samuel Boby or bearer, April 1,1888; the second dated August 24,1887, payable to the order of S. D. Boby six months after date; the third, dated October 28, 1887, payable to Mary E. Boby (then the wife of S. D. Boby) or bearer one year after date,— and of all of which notes plaintiffs claim to be the owners and holders by transfer from one P. B. Barnes. The other action is brought to foreclose a certain real-estate mortgage given by defendant Tidyman, and Albertina, his wife, October 28, 1887, to secure a note of the same date given by TU. J. Tidyman to the order of Mary F. Roby two years after date. The complaint alleges that James L. Knott owns an interest in this note and mortgage to the amount of $1,020, derived by transfer to him Of said note and mortgage by said P. R. Barnes, September 15, 1888 (in whose possession the same then were), as collateral security for a loan of $1,020 then made by said Knott to Barnes. The complaint also alleges that said Barnes was the agent of John Knott to loan $3,500 placed in Barnes' hands in May, 1888, and that' Barnes invested of said moneys $1,693.65 for his own benefit, and secured the payment thereof to said John Knott by transfer of all his interest in said note and mortgage. The date of this last alleged transfer is not given, but interest is claimed on John Knott's share from October 1, 1888.</p> <p>The defense is practically the same in both actions. It is: First, an entire want' of consideration for any of the notes; second, that the execution of the notes and mortgage was procured by fraud practiced on W. J. Tidyman by Roby; and, third, knowledge of the invalidity of the notes on the part of the plaintiffs before they came into possession of the same. The facts constituting the fraud were alleged to be as’follows, substantially: That Tidyman was weak of mind and easily influenced; that he was on intimate terms with Roby, and supposed him to be his friend; that Roby falsely represented to him (Tidyman) that creditors were about to prosecute claims against him and sweep away all his property; that then Roby would ply him with liquor, and take him from saloon to saloon, still preying on his fears, and finally, having got Tidyman into a state of intoxication where he did not know what he was doing, would procure the execution of the notes in suit. In this way it is alleged that Roby secured not only the execution of the notes and mortgage in suit, but also other notes and chattel mortgages covering all the property, real and personal, which Tidyman had. It was also claimed that the signature of Tidyman's wife, Albertina, was obtained to the mortgage by false representations as to its nature, she not knowing what the paper was.</p> <p>The cases were tried without a jury, and the same evidence used in both cases. The findings of the court were substantially the same in both cases. They were to the effect that there was no consideration for the notes or mortgages ever given; that their execution was procured by the fraudulent practices alleged .in the answers; that Barnes had possession of them as attorney for the Robys, but never owned them nor paid anything for them; that Barnes had full knowledge of the equities claimed by defendants when he got possession of said notes; that Barnes was the agent for both plaintiffs for the loaning of their moneys when the plaintiffs claim to have come into possession of said notes; that the plaintiffs knew of the equities claimed to exist by defendant when they obtained possession of the notes; that the plaintiffs are not owners for value, or bona fide purchasers; and that the notes and mortgages are invalid and worthless. From judgments for defendants in both cases, plaintiffs appeal.</p> <p>They contended, inter alia, that the notes and mortgage in suit were given by Tidyman to defraud his creditors, and hence are good even between the original parties. He cannot set up his own fraud as a. defense. Glemens v. Olemens, 28 Wis. 687; Davy v. Kelley, 66 id. 454; Gill v. Henry, 95 Pa. St. 388; Evans v. Bravo, 24 id. 62; Blystone v. Blystone, 51 id. 373; Carpenter v. MeOlure, 39' Yt. 9. Semi-intoxication is no defense. The drunkenness must be total and at the moment of executing the instruments. Gore v. Gibson, 13 Mees. & W. 623; Gardner v. Gardner, 22 "Wend. 526; Harbison v. Lemon, 3 Blackf. 51; Gavender v. Waddingha/m, 5 Mo. App. 457; Bates v. Ball, 72 Ill. 108.</p>

This is an action for the recovery of real estate. The answer was a general denial.

Action to recover damages for personal injuries. The railroad of the defendant company passes through Barton, an unincorporated village. The track is crossed nearly at right angles by a public highway running through the vil. lage. This, highway crosses the Milwaukee river on an iron bridge 117 feet long, with proper side protections. The end of the bridge nearest the railroad track is 123 feet distant therefrom.

<p> Evidence: Impeachment of witnesses: Sunday contract: Sale completed by delivery. </p> <p>1. The defendant in an action for the conversion of a horse cannot be impeached, or his testimony contradicted, by the minutes of his testimony on a prosecution of plaintiif for stealing the horse.</p> <p>2. A witness cannot be impeached by ashing him if he had not “once before ” testified differently.</p> <p>3. A party cannot manufacture testimony for himself by proving what he said at some former time.</p> <p>4. One who sells, and delivers property on Sunday cannot afterwards maintain an action for its conversion by the purchaser, on the ground that the contract was illegal.</p>

APPEALS from the Circuit Court for Waukesha County. The complaint alleges, in effect, the incorporation of the defendant village and its duties with respect to streets therein; that April 26, 1889, the defendants Zaun, Flanni-gan, and Hengel negligently, carelessly, and unlawfully placed partially across Main .street, adjoining the lake in said village, a steamboat belonging to them, forty-eight feet inlength, ten feet in width, and ten or fifteen feet in height, at a place…

<p>APPEAL from the Circuit Court for Osauleee County.</p> <p>Probate of will. The facts are sufficiently stated in the opinion.</p>

This was a writ of cerUorar-i to the clerk of the city of Oconto, to remove to the circuit court of that county the assessment of property, real and personal, of the said Holt Hmibe?' Cornpcmy in said city, and all statements, records, exhibits, evidence, and other matters used before the board of review,, touching said assessment, to the end, among other things, that “the assessment of 16,483,841 feet of saw-logs cut and banked by the relator in the town of Armstrong in…

• Action to recover damages for injuries alleged to have been- caused by the negligence of defendant railway company. The facts are as follows: Broadway and Pearl streets, in the city of Ft. Howard, are parallel north and south streets, separated by the width of one block. The railroad of defendant company is laid along Pearl street for a distance of several blocks, when it diverges therefrom - and crosses Broadway.

Beplevin. The defendant Ghislain Gabriel is the father of the defendant John Gabriel. ' About January 1, 1892, Ghislain mortgaged his farm and raised $800, and through the agency of his daughter bought the personal property in question, to be placed in the Arlington Hotel in De Pere, and the same was placed therein, with the view of leasing the same to the said John.

<p> Railroads: Fences: Killing of horses on trade: Contributory negligence. </p> <p>To the plaintiff's knowledge, four or five rods of the fence between his yard and defendant's track had been broken down for several months, and the opening had been used as an entrance to the yai'd. His horses were turned loose in the yard by an employee who had been instructed to watch them to see that they did not get upon the track. The yard was about eighty feet wide, with good pasturage extending through the opening in the fence and upon defendant’s right of way. While the employee’s attention was diverted by other work the horses passed through the opening upon the track, and they were shortly afterwards killed by a passing train. Held., that plaintiff was guilty of contributory negligence.</p>

This action was brought to recover for services and expenses of the plaintiff in looking up witnesses and testimony in several actions in which defendant was a party, pending and tried in St. Paul, Minn. The actions involved the defendant’s title to certain lands in the present city of Duluth, which plaintiff had attempted to convey to defendant by deed in 1856.

On September 4, 1890, and for some time immediately prior thereto, the firm of A. Weed & Co., composed of the defendants, was hopelessly insolvent.

This action was brought in the circuit court for Price county to recover the first instalment due on a contract for the sale and deliveryof certain machinery, and a judgment in favor of the plaintiffs was reversed, and the cause remanded for a new trial. 83 Wis. 399.

This action is to recover damages for personal injuries received by plaintiff when in the employ of defendant company, alleged to have been tbe result of the negligence of the company, in that (1) it failed to provide suitable machinery and appliances for doing the work in which plaintiff was employed; and (2) it employed an incompetent person to work with plaintiff, through whose negligence the injury was inflicted.

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

Action to recover for personal injuries. Plaintiff and her husband were passengers on defendant’s passenger train, and had tickets for a station called Heights. The conductor took their tickets, and knew that they were to get off at that station. They had several bundles, and plaintiff had a baby about a month old with her. The brakeman called the station as the train approached it, and went to the back end of the car to assist the passengers to alight.

Action by an employee for personal injuries, brought against the defendant, a railway company organized for the purpose of transporting saw… Held: under the evidence, that in all he did he was a mere co-laborer with plaintiff, and was not charged with the duties of the principal; that for the purposes of this action Newton Mills was the vice principal, and in determining whether plaintiff was stationed where he was at the time of the injury complained of by authority of…

The plaintiff and defendants entered into a written agreement April 28, 1890, by which the former bargained and sold to the latter “ all the lumber belonging to him now in pile at the mill of E. K. Buttrick in Rhinelander, Wis., excepting culls in pile, and excepting timber. . .

In 1888, Wilson II. Stubbings, one of the defendants, resided in Evanston, Ill., and owned and w;as carrying on a store for the sale of merchandise at Marinesco, Mich.; and In part execution of such agreement to furnish money, Stubbings removed his stock of goods from Marinesco to Eagle Biver, and placed it in the store in which O’Connor was doing business, and the same became a part of the stock of merchandise in the general store mentioned in the agreement of August 8th,…

The plaintiff town appealed to the circuit court from the action of the county board of Oneida county in disallowing a bill for attorney’s fees and disbursements paid by said town and presented by it for audit to said county board. The cause was tried by the court without a jury. The facts are stated in the opinion.

APEEAL from the Circuit Court for Waukesha, County. This action was brought on the co.venant in a lease for the payment of rent to the plaintiff by the defendant for a certain grist mill leased by the former to the latter for three years at the rate of $900 for the first year, $1,000 for the second, and $1,200 for the third year, the plaintiff K agreeing to put in a water wheel of not less than fifty horse power within ninety days from March 1, 1888, if required ” by the…

This action was brought to recover damages for an assault and battery alleged to have been committed by defendant upon Andrew Yosburg, the minor son of plaintiff, which resulted in putting plaintiff to great trouble and expense in and about nursing and attempting to heal his son while suffering from the injuries thus received, and while disabled thereby, and subjecting plaintiff to the loss of services of his son.

APPEALS from the Circuit Court for Eau Claire County. This action was commenced March 6, 1891, against the defendant, a corporation organized under and by virtue of the laws of Ohio.

<p>APPEAL from the Circuit Court for Eau Claire County.</p> <p>The case is stated in the opinion.</p>

This case was before the court on appeal from a final judgment against the original defendants in the action, James GMlds and O. JT. Denniston, 82 Wis. 460, where the case is stated. After the reversal of the judgment the circuit court ordered a reference of all the issues to a referee, to hear, try, and determine the same.

This actipn was brought to quiet title to land, and for an injunction to restrain threatened trespass by defendant on such land. Defendant is not a resident of this state, and personal service of the summons upon him could not be obtained. 'Plaintiff obtained from the circuit court an order that service be made by publication of the summons, pursuant to sec. 2640, R. S. The procedure prescribed by the statute was complied with.

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>They cited Satterlee v. Groot, 6 Cow. 33; Onondaga Bank v. Shepherd, 19 Wend. 10; Constantine v. Dunham, 9 id. 431; Price v. Ft. Ednaw'd W. W. Go. 16 How. Pr. 51; Am. Exch. Bank v. Hill, 22 id. 29; Barnard v. Wheeler, 3 id. II; Olivier v. Cunningham, 51 Minn. 232; Carpenter v. Continental Ins. Co. 31 Hun, 78; Brittam v. Peabody, 4 Hill, 62.</p>

This action was commenced against the principal defendant, Wolf, August 23, 1892, and on the same day the garnishee papers were served on the defendant railway company.

This is an appeal from an order overruling a general demurrer to the plaintiff’s complaint.

It appears from the pleadings in this action that the plaintiff, William B. Neeves, on the 29th of September, 1890, purchased of the defendant Gregory a large number of lots in Hyde Park in the town of Wauwatosa, near the city of Milwaukee, for $30,000, and received a warranty deed of them, and for the unpaid portion of the purchase money he' executed to the defendant Gregory his five promissory notes in the aggregate of $22,500, secured by a mortgage on the same premises…

<p>(1) Examination of adverse party: Oral interrogatories. (2) Deposition of party on his own behalf: Oral cross-examination. .</p> <p>1. That clause of sec. 4096, R. S., which provides that “ the party examining shall, in all cases, be allowed to examine upon oral interrogatories,” applies to every examination under that section, whether before or after issued joined, or within or without the state.</p> <p>2. Where the deposition of a party as a witness in his ‘ own behalf is taken without the state on commission and written interrogatories, the adverse party cannot cross-examine him orally.</p>

Action to recover the sum of $500, with interest, alleged to be due the plaintiff for services performed by him as a real estate broker in securing for defendant certain, land.. The appeal is from an order granting a new trial after a verdict for plaintiff.

APPEALS from the Circuit Court for Milwaukee County. On December 6, 1877, one Andrew Carberry, since deceased, owned a dwelling house in Pewaukee.

Garnishment. The facts are sufficiently stated in the opinion. The garnishee appeals from a judgment in favor of the plaintiff.

This action was brought to recover the sum of $552.02 for'services rendered and disbursements made in successfully defending against a claim of about $11,000 against the estate of the defendant’s intestate, William Swale, deceased, and the defendant appeals from a judgment rendered against him for the entire demand.

<p>APPEAL from the Superior Court of Milwcnokee County.</p> <p>Action for libel. Defendants are proprietors of the Evening Wisconsin, a newspaper published by them in the city.of Milwaukee. They published in that paper an abstract of- a complaint which had theretofore been served, but not filed, in an action for divorce brought by one-Mrs. Sullivan against ber husband. The publication states that the husband is charged in the complaint with living openly with the plaintiff, and that the complaint charges the pair with other unseemly conduct. The publication is the alleged libel. The answer denies malice on the part of the defendants, and avers the truth of the matters stated in the publication.</p> <p>On the trial, defendants introduced testimony tending to prove the truth of the publication; also that the general reputation of the plaintiff for chastity was bad. Numerous instructions to the jury on behalf of the defendants were proposed, one of which is as follows: “ If you believe from the evidence that the plaintiff, at the time of the publication, was a woman of disparaged reputation, then that must be taken into consideration, because a woman whose reputation for chastity is bad cannot suffer the same damages as a woman of good reputation would, 'if an article was published about" her, reflecting upon her chastity.”</p> <p>The jury returned a special verdict, in which they found that the charges against plaintiff in such publication were false, and that she was injured thereby in her character, reputation, and business in the sum of $1,200. A motion by defendants for a new trial was denied, and judgment for plaintiff entered for the damages assessed by the jury. Defendants appeal from the judgment.</p>

Action to recover damages for an injury to plaintiff’s carriage, alleged to have been caused by the negligence of defendant and its servants. The facts are sufficiently stated in the opinion. The plaintiff appeals from a judgment of nonsuit. as to what was the proximate cause of the injury, and to the point that plaintiff could recover although the stopping of defendant’s car was not the sole cause, cited Stetler v. O. & Jf. W. R. Go. 46 Wis. 491; Atkinson v. Goodrich Transp.

On September 19,1891, the defendant, Augustus O. Feldt, made a voluntary assignment for the benefit of his creditors. His assignee administered his estate, and in due time filed his account, which was allowed by the court and said assignee was discharged. Afterwards, on June 13, 1892, the said Feldt filed his petition in the circuit court to be discharged from his debts under the statutes.

Action for libel. Plaintiff was a saloon keeper in the town of Lake, Milwaukee county. The complaint charged in apt language that the defendants, maliciously intending to injure the plaintiff and his business, on the 10th of January, 1890, falsely and maliciously wrote and published a certain false, scandalous, and malicious libel of and concerning the plaintiff, which is set forth at length, with proper innuendoes.

The complaint in this action is for a balance of $1,148.72, due for goods, wares, and merchandise, to wit, alcohol, spirits, whisky, etc., sold and delivered to the defendant at its special instance and request.

<p>APPEAL from the Circuit Court for Milwaul&ee County.</p> <p>The action is to dissolve a partnership between the parties. The complaint charges divers breaches of the partnership agreement by defendant, to the .damage of the firm, and demands the appointment of a receiver of .the partnership effects, an accounting, and the closing of the partnership business. Defendant, in his answer, denies the alleged breaches 'of the partnership contract on his part, and charges that plaintiff has been guilty of breaches thereof on his part, to the great damage of the firm.</p> <p>The partnership articles set out in the complaint contain a stipulation that if, at the end of one year from March 13, 1891, defendant should notify plaintiff that he desired to withdraw from the business, plaintiff agreed to pay him a 'sum equal to the capital he had invested in the business and ten per cent, interest thereon, within ninety days after such notice, for the defendant’s interest in the business, which the latter was thereupon to convey to plaintiff. The cause was pending and at issue when the stipulated year expired. At' its expiration defendant duly notified plaintiff of his desire thus to withdraw from the business. More than ninety days after such notice was given, defendant, by leave of court, interposed an amended and sup-pleraental answer, containing a counterclaim against the plaintiff for the capital invested by him in the business, alleged to be $3,000, and the agreed interest thereon.</p> <p>The plaintiff appeals from an order overruling a general demurrer to such counterclaim.</p> <p>To the point that the counterclaim was properly pleaded, they cited sec. 2656, R. S.; Heckman v. Swartz, 55 Wis. 174; Sprout v. Crowley, 30 id. 187; Orton v. Noonan, 29 id. 547; Hopkins v. Gilman, 47 id. 581.</p>

On September 25, 1858, the plaintiff and one French recovered judgment in the district court for Eamsey county, Minnesota, against William Hollinshead for $3,674. That judgment was affirmed on appeal by the supreme court of Minnesota, July 23, 1859, and the same was docketed August 16, 1859, and has never been paid. On February 20, 1860, said French died, and the plaintiff became the owner of the entire judgment.

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>Ealse imprisonment. The plaintiff was arrested by defendant Heiden, a constable, on a valid criminal warrant issued by the deferidant Sanderson, a justice of the peace, lie was brought before the justice August 1,1891, arraigned, and pleaded not guilty, whereupon he asked for a continuance to obtain witnesses until August 3d. The continuance was granted, and the plaintiff was committed to jail in the meantime, but the justice did not enter in his docket the time or place to which the case was adjourned. The defendant Heiden took the plaintiff to jail, where he was imprisoned until August 3d, when Heiden again brought him before the justice. Another adjournment was had .until August 4th, and the plaintiff gave his own recognizance for his appearance, and deposited $40 with the justice to secure his bond. On August 4th the plaintiff appeared pursuant to his recognizance, and the action was dismissed without trial. The plaintiff paid his attorney $10 out of the $40 deposited in court; also the justice’s, constable’s, and witnesses’ fees; and received back out of the $40 but $8.19. The damages were laid at $1,000, besides the $31,81 paid for costs, etc. The jury returned a verdict for the plaintiff for $250, on which judgment was rendered, and defendants appeal.</p>

<p>Debtor and creditor: Fraudulent conveyances: Creditors’ action: Pleading: Jurisdiction: Bes ad judicata.</p> <p>1. In a creditors* action under sec. 3039, E. S., the failure of the complaint to contain, in form, the averments in respect to collusion specified in Circuit Court Eule XXVIII, sec. 1, is not ground of demurrer.</p> <p>3.It is a sufficient compliance with said rule if the complaint states facts from which the lack of collusion, etc., are apparent.</p> <p>3. The circuit court for Milwaukee county may entertain an action in the nature of a creditors’ bill upon a judgment of the superior court of that county, to enforce satisfaction thereof out of property fraudulently conveyed by the judgment debtor.</p> <p>4. The pendency of proceedings supplementary to execution on a judgment is not a bar to a creditors’ action to reach property fraudulently conveyed by the judgment debtor to a third person.</p> <p>5. The judgment on the debt is conclusive in the creditors’ action as to the validity and justice of the plaintiff's claim.</p> <p>6. Voluntary conveyances by a judgment debtor to a third person of substantially all her property not exempt from execution, upon a trust and benefit reserved to her, are fraudulent as a matter of law.</p>

<p> Certiorari: To whom directed: Cities. </p> <p>1. Where the common council of a city is a continuing body and has. the control of all its records, while the city clerk having the custody thereof is a mere ministerial officer, a writ of certiorari to review-proceedings of the council should be directed to that body, and not to the clerk or to the city itself.</p> <p>2. Where a writ of certiorari has been misdirected it may be superseded before, as well as after, its return.</p>

This action is to set asidé and cancel a certain mortgage executed by plaintiff to defendant during her minority, on her separate real estate, to secure a loan made by defendant to her husband: It is unnecessary to state the pleadings. The findings of fact are within the pleadings, and are supported by the testimony.

Action by L. L. Cummings against the Town of Lake Realty Company and Eichard Jefferson to recover $250 paid by the plaintiff to said Jeffer'son for an option to buy certain land, and for servioes performed by the plaintiff in procuring a purchaser and negotiating a sale of said land. The substance of the complaint is stated in the opinion.

At the times herein mentioned, the plaintiffs were copart-ners doing business in Chicago under the firm name of Spitz, Landauer & Co., and the defendants were copartners doing business in Milwaukee under the firm name of G. Mohr & Co. On March 28, 1893, this action was commenced to recover the amount secured by four certain promissory notes, amounting in the aggregate to $2,100, each of which was to become due thereafter.

The appeal is from two orders. On September 24,1892, the plaintiff obtained judgment by default against Nicholas Neusohwander, the principal defendant, for $6,854.34, and on October 1, 1892, judgment by default was rendered against Appolonia Neusohwander, his wife, as garnishee, for the amount of the principal judgment and costs.

This action was brought to recover a loss which occurred under a policy of insurance issued by the defendant, April 7, 1891, to the estate of Jennie Stillwell.

On a replat of the city of Oshkosh, made in 1859, the tract of land in the Eifth ward between West Algoma, High, James, and Pearl streets is platted as blocks 119 and 122, and between these blocks, extending from High to Pearl street, is platted as Henry street, sixty feet wide, which has never been opened to public use.

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>Action to foreclose a mortgage. The facts are stated in the opinion.</p> <p>to the point that judgment against the appellant for a deficiency would not be proper, cited Brown v. Kennicott, 30 Ill. App. 89; Mach v. Austin, 29 ITun, 534; MeKeonv. Hagan, 18 id. 65; Life Asso. of Am. v. Lessler, 19 Alb. Law J. 399; Manhattan L. Ins. Oo. v. Glover, 14 Hun, 153 ;■ Emmett v. Mamáes, 60 Ind. 548; Avery v. Vansielde, 35 Ohio St. 270; Munson, v. Dyett, 56 How. Pr. 333; Ileburn v. Warner, 112 Mass. 271; Kitehell v. Mudgett, 37 Mich. 81; 1 Black, Judgm. sec. 119, and notes 21, 28; Gould v. MeFall, 111 Pa. St. 66; Jones v. Merritt, 23 Hun, 184; Maeli v. Austin, 95 N. T. 513.</p>

<p> Insurance against fire: Agency: Waiver of conditions. </p> <p>1. Plaintiff: applied to defendant’s agent for insurance and truly stated the amount of an incumbrance on his property. At the instance of the agent the defendant’s secretary, who was present and who afterwards countersigned the policy, wrote out the application, but falsely stated therein that the incumbrance was for a smaller amount. Held, a waiver of a condition in the policy avoiding it in case of any false statement as to incumbrances.</p> <p>2. Under sec. 1977, B. S., an insurance company which has issued a policy upon an application taken by an agent cannot disclaim his agency in the doing of anything necessarily implied in the taking and forwarding of such application.</p> <p>3. Where the authority of a local agent is limited to taking applications. and receiving premiums, his agency as to a particular policy ceases as soon as the contract is complete, and he has no power thereafter to waive any of the conditions of the policy.</p> <p>4. One who becomes a member of a mutual fire insurance company by accepting a policy therein takes it subject to all the conditions and limitations contained therein and in the charter and by-laws, and in the absence of fraud or mistake is conclusively presumed to know their contents.</p>

<p> Trespass: Evidence: Adverse possession: Estoppel: Mistalce in deed: Contradiction of solemn admissions: Reopening of case: Discretion. </p> <p>1. In an action of trespass, where the defendant claims title to the locus in quo, his title deeds are admissible without proof of seisin or possession within twenty years. Having shown his legal title to. the premises, he is presumed, under sec. 4210, R. S., “ to have been-possessed thereof within the time required by law,” and the occupancy of other persons is “deemed to have been under and in subordination to the legal title,” unless shown to have been adverse.</p> <p>2. Upon an issue involving title to land, the testimony of one under whom both parties claim, that when he signed the deed of the-premises to defendant’s grantor he could not read English and supposed that it described a different parcel of land, is not admissible, where there was no claim that the mistake was mutual or that the grantee in such deed knew of the mistake or was guilty of any fraud.</p> <p>3. Evidence is not admissible to contradict a solemn admission previously -made on the trial by the party offering it, and which has not been withdrawn.</p> <p>4. After a case is closed, the matter of reopening it for further proof rests in the sound discretion of the trial court.</p> <p>5. The grantor of land is estopped from claiming that his possession after the conveyance was adverse to his grantee.</p>

<p> Demurrer: Misjoinder of plaintiffs. </p> <p>The question of misjoinder of plaintiffs, or whether the complaint, as to one or more of several plaintiffs, states a cause of action against the defendants, cannot be raised by demurrer, under sec. 2649, R S.</p>

<p>APPEAL from the Circuit Court for Crawford County.</p> <p>Plaintiff was driving his team of horses across the Mississippi river in the night time, and the horses fell into a .hole in the ice cut by the defendant and left unfenced and unguarded. One horse was drowned, and the other had his leg broken and was necessarily killed. This action is to recover the value of the horses. The plaintiff had a verdict for such value. A motion for a new trial was denied, and judgment entered for plaintiff pursuant to the verdict. Defendant appeals from the judgment.</p> <p>To the point that a verdict will not be set aside for mere separation of the jury in a civil action, unless it appears that there is a strong probability that they have been tampered with or influenced to return the verdict sought to be set aside, or that such conduct was occasioned by the prevailing.party, they cited Jaokson v. Smith, 21 Wis. 26; Posen-back v. Ra/ymer, 13 Colo. 451; Downer v. Baxter, 30 Yt. 467.</p>

<p> Insurance against fire: Proofs of loss: Waiver of objections: Overestimate by insured: Fraud. </p> <p>1. All objections to the proofs of loss furnished by the insured are waived by the company keeping them without complaining of- any defect or objecting to payment at the time.</p> <p>2. An over-estimate by the insured of the value of his property and the amount of the loss, if unintentional and with no purpose of defrauding the company, will not preclude a recovery for the loss.</p>

<p>APPEAL from the Circuit Court for Biehland County.</p> <p>The complaint alleges that on December- 24, 1889, the plaintiffs were the owners of the eighty acres of land described and known as “ Horse Creek Farm,” and conveyed to and exchanged the same with the defendant, at an agreed price of $1,800, for a house and lot in Nichland Center, at an agreed valuation of $500, and cash to the amount of $300; and in lieu of the balance of said consideration the plaintiffs were induced by the defendant to accept a promissory note executed by Louis and Mary Noque to the defendant or his order for $1,000, dated November 23, 1888, secured by mortgage on eighty acres of land described and known as the “ Mill Creek Farm; ” that to induce the plaintiffs to accept said note and mortgage the defendant fraudulently represented to the plaintiffs that the premises covered by the mortgage were worth $2,600; that one acre thereof was worth more than two acres of the land plaintiffs conveyed to the defendant; that the land was worth more than any eighty acres of land on Ilorse creek; that all of it was good farming land, suitable for and capable of cultivation; that it lay in the valley of Mill creek; that forty acres of the same were cleared; that in the season of 1889 Noque raised eighteen acres of good corn thereon; that the uncleared land was thickly covered with extra fine and valuable timber; that much of the timber was tie timber; that there was enough timber on the place to pay off the mortgage; that there was a large and good log house on the premises, clapboarded on the outside and lathed and plastered on the inside; that there was .a large and good log double barn on the premises ; that there were good corncribs, a good pigpen, and other outbuildings on the premises, all sufficient for the needs and requirements of the place. It is alleged that all of said representations were untrue and false, and so known to be at the time they were made. Plaintiffs claim $1,000 damages and interest. The answer consists of admissions, denials, and counter allegations.</p> <p>At the close of the trial the jury, returned a special verdict, to the effect: (1) That the Noque mortgage was transferred by the defendant to the plaintiffs in the trade between them at the price of $1,000. (2) That the defendant did not represent to the plaintiffs, before said trade was consummated, that the eighty- acres of land near Mill creek, covered by the mortgage, was good farming land, and that all of it, when cleared, could be cultivated; (3) nor that said mortgaged land was good farming land and was worth more than any two eighties of land on Horse creek; (4) nor that said Mill creek farm was well timbered, and that the timber upon it was of sufficient value to pay off said mortgage; (5) nor that Eoque had built upon said mortgaged premises a substantial hewed log house that •was lathed and plastered. (6, 7) That the defendant did then represent to the plaintiffs that forty acres of said Mill creek farm were cleared, and (8, 9) that the Mill creek farm was worth $2,600. (10) That such representations were false. (11) That the defendant had been upon said Mill creek farm before he assigned the mortgage thereon to the plaintiff, and knew the character of the same and the improvements thereon. (12, 13) That the Mill creek farm was not good farming land, and could not, any more than forty acres of it, be cleared and cultivated. (14) That this Mill creek eighty was poor farming land, (15) and was poorly timbered in December, 1889. (16) That the marketable value of the timber thereon was $175. (17) That the mortgagor, Eoque, had not built thereon a substantial hewed log house that was.lathed and plastered, (18) but only a fair.log house, hewed on inside. (19) That only thirty acres of said land were cleared at that time. (20) That the value of said mortgaged land at the time was $1,130. (21) That the defendant knew that such representations were false at the time he made them. (22) That the plaintiffs did not believe said false representations made by the defendant to be true; that they were not deceived by them; that they did not rely upon them in taking this Eoque mortgage, and they were not induced by such representations to take said mortgage. (23) That the plaintiffs, or either of them, did not know this Mill creek land at the time said mortgage was transferred to them. (24) That said mortgage would have been worth at the time the defendant transferred it to the plaintiffs, if the representations found to be false had been true, the sum of $1,000. (25) That said mortgage was worth, at the time the defendant transferred it to the plaintiffs, $700.</p> <p>The court denied the plaintiffs’ motion to set aside the special verdict and for a new trial, and also denied their motion for judgment on the special verdict; and thereupon the court granted the defendant’s motion for judgment, and the same was entered accordingly. From that judgment the plaintiffs appeal.</p>

<p> Pleading: Injury from, defective bridge: Proximate cause. </p> <p>A complaint which, after describing certain alleged defects in a bridge, states that “ by reason, entirely, of the insufficiency, want of repair, and defects aforesaid, of and in said bridge,” a wagon in which plaintiff was riding was precipitated therefrom, causing serious injuries to her, sufficiently alleges that the defects were the proximate cause of the injury.</p>

<p>APPEAL from the Circuit Court for Grant County.</p> <p>This is an action for money had and received, based upon the following facts, in substance, namely:</p> <p>The defendants entered into a written contract October-21, 1889, to sell and convey to the plaintiffs the-southhalf'-of southwest quarter of section 36, town 6, range 4, and the north half of northwest quarter of section 1, town 5, range 4, in Grant county, Wisconsin,” for the sura of $4,000, to be paid as specified in the contract. There was no mention in the contract of the number of acres sold, or of any price per acre. It simply mentions, in express terms, the sale of the said two government descriptions of land for $4,000, without other explanation or qualification. Subsequently, the $4,000 consideration having been paid, the defendants executed and delivered to the plaintiff a warranty deed of said tracts. The deed expresses a consideration of $4,000, and the premises thereby conveyed are described therein as follows, namely: “The following described real estate, situate in the county of Grant and state of Wisconsin, to wit, the south half of the southwest quarter of section 36, town 6,range 4west; also, north half of northwest quarter of section 1, town 5 north, of range 4 west.” The plaintiff subsequently had the tracts of land thus described surveyed, and ascertained for the first time that they contained 154.1 acres of land, and no more. ITe then claimed that he bought these tracts of land for 160 acres of land, at $25 per acre, and that the defendants told him at the time, in substance, that there were 160 acres in the two tracts; and he demanded that the defendants repay him the price of 5.9 acres at the rate of $25 per acre, $141.50, and brought this action for the recovery of that sum, with interest. There was no claim that- there was any fraudulent representation made by the defendants as to the quantity of land included in the two tracts, and it appeared that before making the purchase the plaintiff examined the lands and had an opportunity to ascertain the contents of the tracts.</p> <p>At the trial the court, against the objection of defendants, permitted the plaintiff to produce and give parol evidence to the effect that by the parol agreement which preceded the written contract it was agreed and understood that the defendants were to sell and convey the tracts of land in question, and that they contained. 160 acres of land, for which plaintiff ivas to pay $25 per acre, amounting to $4,000. Evidence was given on behalf of the defendants tending to show that the lands in question were sold by defendants for $4,000; that the defendants did not know what number of acres the tracts contained until after the plaintiff had them surveyed, but supposed that they contained 160 acres of land; and that when the deed was delivered nothing was said as to the number of acres they contained.</p> <p>The conflict between the claims of the respective parties was whether the sale was of certain tracts of land supposed to contain 160 acres at a lump sum for the tracts, or whether it was, on the contrary, the sale of 160 acres of land at $25 per acre, the amount of the purchase price to-be determined by the number of acres in the tracts. There was no claim made that any fraud or mutual mistake occurred in the execution of the contract of sale, or the execution and delivery and acceptance of the deed, as to the terms of the sale. The court, at the request of plaintiff’s counsel, instructed the jury “that if the plaintiff bought, and the defendants sold to him, a given number of acres at a given price per acre, and not a lump contract for a lump sum, and the land conveyed by them to him does not contain so many acres as he bought and they sold, and he has paid them for the number of acres bought by him, the plaintiff is entitled to recover from the defendants the difference between the number of acres he bought and the number conveyed to him by them, at the agreed price per acre.” The court was requested, on behalf of defendants, to instruct the jury, in substance, that when a contract is put into writing it extinguishes any previous parol agreement between the parties as to the terms of the contract, and, if there is no ambiguity or uncertainty on the face of the writing, it is binding upon the parties and cannot be varied or changed by parol evidence unless it appears that fraud was used by one party to induce the other to assent thereto. The court refused to so instruct the jury.</p> <p>The plaintiff had a verdict for $150, upon which judgment was entered. The defendants appealed.</p> <p>They contended, inter alia, that the parol evidence in this case - did not tend to vary or contradict the terms of the written instruments, but only to complete them in the particular respecting which they were incomplete; that is, as to how; the consideration stated in them was arrived at. Both the 'statement of consideration in a deed and the recitals of its payment may be varied and controlled by parol evidence. Cardinal v. Hadley, 158 Mass. 352; 5 Am. & Eng. Ency. of Law, 436-7; Reynolds v. Vilas, 8 Wis. 482; Bird v. Kleiner, 41 id. 134; Frey v.Vcmderhoof, 15 id. 397, 401; Hahn v. Doolittle, 18 id. 196; Ilubbmd v. Marshall, 50 id. 322; Red Winy Mfg. Co. v. Moe, 62 id. 240; Becker v. Knudson, 86 id. 14; Barnes v. U. P. R. Co. 54 Fed. B.ep. 87; Tarbell v. Bowman, 103 Mass. 341; Piokman v. Trinity Church, 123 id. 1; Paige v. Sherman, 6 Cray, 511.</p>

<p> Sale of chattels: Acceptance: Waiver of right to return: Who may maintain action? Instructions to jury. </p> <p>1. Where the vendee of a harvesting machine had the right to return it, either because of defects constituting a breach of warranty or under a condition of the sale that he might return it if dissatisfied, but, after testing it and discovering the defects or determining that he was not satisfied and would return it, he continued to use it, not to make a further test but merely for the purpose of completing his harvest, such use was an acceptance of the machine and the right to return it was thereby lost</p> <p>2. Plaintiff was the agent of manufacturers under a contract providing that if he made sales of their machines on terms other than those specified he should be charged as purchaser thereof. He sold a machine to defendant on other terms, was charged as purchaser, and paid the manufacturers therefor. Held, that he thereby became the owner of the cause of action against defendant for the price of the machine.</p> <p>3. A refusal to instruct the jury that they might find damages for defendant in case they found in his favor is not a ground for reversal where the verdict was for plaintiff.</p>

<p>APPEAL from the Circuit Court for Grant County.</p> <p>Ejectment. The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.</p> <p>He contended, inter alia, that in an action of ejectment a mistake in the deed or other facts outside the record which avoid its effect may be shown only when an equitable counterclaim has been interposed. Green Bay & M. Canal Go. v. Hewitt, 62 Wis. '317. The plaintiff must recover upon the strength of his own title and not on the weakness of the defendant’s, and when reference must be had to facts outside the record in order to avoid the effect of the outstanding title he should apply to a court of equity to have his title cleared before proceeding in ejectment. Oasgrain <o. Milwauhee Go. 81 Wis. 113; Spiess v. Neuberg, 71 id. 279; Priekett v. Muele, 74 id. 207. Plaintiff, as the grantee of Wm. H. Gamer or bis heirs, may have a right in equity to a decree of specific performance declaring the absolute deed to be a mortgage; but such relief cannot be had in this case, where the parties to the transaction are not before thé court and where there was no proper pleading to give the court jurisdiction. Smith v. Himt, 13 Ohio, 260; Reece v. Allen, 10 Ill. 236; Qillett v. Treganza,13> Wis. 472; Eaton v. Smith, 19 id. 537.</p>

<p>APPEAL from the Circuit Court for Iowa County.</p> <p>On the evening of November 21, 1889, the plaintiff fell and broke bis arm and was otherwise injured, by reason of an alleged defective sidewalk. January 28,1890, the plaintiff notified the city and its mayor and clerk of such injury and defect at the place described in the opinion, and also that the plaintiff claimed damage by reason thereof in the sum of $5,000. February 21, 1890, this action was commenced to recover such damages, by the service of the summons and the original complaint. That complaint was amended September 24, 1891. The answer put in issue the negligence of the defendant. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at $1,800. From the judgment entered thereon the defendant appeals.</p> <p>contended, infer alia, that it was error to admit evidence of the notice of claim against the city and of the lateral pitch of the sidewalk and of the condition of the yard of the adjoining lot allowing mud to be washed upon the walk. The notice made no allusion to these defects on which the plaintiff ■chiefly relied at the trial and on which the qase was finally submitted to the jury. The case does not come within that line of authorities Which holds that mere errors are not fatal, provided the notice is sufficient to apprise the-•officers of the real defect complained of. Sowle v. Tomah, ■81 Wis. 353; Billings v. Worcester, 102 Mass. 329; Goodwin v. Ga/rdiner, 84 Me. 278; McDoúgall v. Boston, 134 Mass. 149; Weber v. Greenfield, 74 Wis. 234. .There was no defect in the walk. In its linear slope it merely followed the slope of the hill, and it could not have been constructed otherwise. Its lateral slope was such as all properly constructed walks have, to carry off water into the gutter. City authorities are not bound to so construct their walks that persons are not liable to fall upon them in rainy weather, and the slipperiness of a walk occasioned by mud and rain cannot be made the ground of a recovery. See Cook v. Milwaukee, 27 Wis. 192; Perkins v. Fond cht Lac, 34 id. 435; Mill v. Fond du Lac, 56 id. 248; Schroth v. Prescott, 63 id. 652; Grossenbach v. Milwaukee, 65 id. 31; Ayres v. Hammondsport, 130 PT. T. 665; Taylor ■v. Fonkers, 105 id. 202; Hauspiann v. Madison, 85 Wis. 187; Chamberlain v. Oshkosh, 84 id. 289. The city never had any notice of the defects. The lateral pitch of the walk was not of such a character as to attract attention, and so far as the testimony shows the pretended defects relied on had never been noticed by any human being. The city officers were therefore not bound to take constructive notice of them. Burns v. Bradford, 137 Pa. St. 361; Bro- ■ burg v. Des Moines, 63 Iowa, 523; Me Grail v. Kalamazoo, 94 Mich. 52; Tice v. Bay City, 84 id. 461; Bailey v. Sprung Lake, 61 Wis. 227; Bergemn v. Chippewa Falls, 82 id. •505; Gooclnough v. Oshkosh, 24 id. 549. The instruction by which the jury was allowed to find the walk defective .if the earth could wash upon it from the adjacent lot, was erroneous. City officers are not bound to invade the private rights and property of adjoining owners in order to keep streets in repair. Billings v. Worcester, 102 Mass. 329; Taylor v. PeoJeham, 8 R. T. 349, 5 Am. Rep. 518;. Jones v. Waltham, 4 Cush. 299; LLixon v. Lowell, 13 Gray,. 59; Jones v. Boston, 104 Mass. 75. Municipalities are not liable for defects or want of efficiency in the plan adopted for the construction of their streets. 9 Am. & Eng. Ency. of Law, 3 SO; Child v. Boston, 4 Allen, 41; Bastón v. Neff, 102 Pa. St. 474; Urguhart v. Ogdensburg, 91 N. Y. 67; Williams v. Grand Bajgids, 59 Mich. 51; Lansing v. Too-lan, 37 id. 152.</p>

<p>APPEAL from the Circuit Court for La Crosse County.</p> <p>The appeal is from an order changing the venue from La Crosse to Milwaukee county upon application of defendant. The defendant is a domestic insurance corporation, existing under ch. 43, P. & L. Laws of 1869, and ch. 1, Laws of 1887.</p> <p>On May 10, 1889, the defendant insured the life of Matthias Hosley, a resident of La Crosse, for the benefit of his wife and children, and issued to him three policies or certificates of insurance of §1,000 each. Hosley died June 25, 1892, while still a resident of La Crosse, being at the time temporarily in Chicago. His wife and children, who are the plaintiffs in this action, continued to reside at La Crosse, and still reside there. The certificates provided for payment of the insurance to the beneficiaries within ninety days after due proof of the death of the insured shall have been received by the secretary. Sec. 14 of the defendant’s amended charter (ch. 1, Laws of 1887) provides as follows: “ Within ninety days after the receipt by the secretary of due proofs of the death of any member . . . there shall be paid to the beneficiary ” the sum called for by such certificate. Sec. 14 of defendant’s by-laws provides that upon receipt of proofs of death the defendant’s secretary'shall immediately examine the case, and, if he finds that the deceased’s certificate of membership was valid and in full force and effect at the time of his or her death,, the president shall, within ninety days after the receipt of said proofs, draw his warrant on the treasury, countersigned by the secretary, for the amount due, payable to the person or persons entitled thereto; and the secretary SiN.ll within such ninety days transmit or dóliver the same to the person entitled thereto, and take his or her receipt therefor.</p> <p>This action was commenced in La Crosse county. The complaint set forth, among other things, the issuance of the policies, the due performance by Hosley of all the conditions and obligations required of him, the death of Hos-ley, June 25, 1892, the furnishing of complete proofs of death, the fact that more than ninety days had elapsed since the furnishing of such proofs, and the defendant’s neglect to pay the loss. Upon the complaint and an affidavit showing, among other things, that the defendant’s principal office and place of business was and still is in the city of Milwaukee, the defendant moved that the venue of the action be changed to Milwaukee county, under subd. 5, sec. 2619, R. S. Upon this motion the plaintiffs showed by affidavit, among other things, their continuous residence in La Crosse from the time of the issuance of the policies up to the time of the commencement of the action. From an order changing the venue to Milwaukee county, plaintiffs appeal.</p> <p>To the point that defendant was bound to seek the plaintiffs and pay them, and failure to do so was a breach of the contract, they cited Bishop, Cont. sec. 1237; 2 Parsons, Cont. 637-8 and note; 2 Chitty, Cont. (11th Am. ed.), 1069; Lee v. Selleck, 33 N. Y. 615, 618. "</p> <p>They contended, inter alia, that the death having occurred in Illinois, it should be held that the cause of action arose where the breach or wrong occurred, which was in Milwaukee county. Veeder v. Balter, 83 N. Y. 156; Ithaca Pire Dept. v. Beecher, 99 id. 429; Bank of Ky. v. Harrison, 1 Bush, 384; Foster v. Wade, 4 Met. (Ky.)., 252; Rodgers v. Mut. Endow. Asso. 17 S. C. 406; Hibernia Nat. Bank @. Lacom.be, 84 N. Y. 367; Jackson v. Spittall, L. E. 5 C. P. 542; Durham v. Spence, L. E. 6 Exch. 46; Howell v. Young, 5 Barn. & C. 259.</p>

<p>(1) Railroads: Injury to property by fire: Nonsuit. (3) Appeal: Bills of exceptions: Oases and briefs.</p> <p>1. In an action for injury to a cranberry marsh by fire, a nonsuit was properly granted upon evidence which left it a matter of conj'ecture whether the injury was caused by the original fire started by defendant twelve miles distant or by back-fires started to prevent its spread.</p> <p>2. Circuit Court Rule XXIV, as to the preparation of bills of exceptions, and Supreme Court Rules VIII and IX, as to the preparation and printing of cases and briefs, will be strictly enforced.</p>

APPEALS from the Circuit Court for Wood County. The action is to recover damages for the alleged negligent starting of a fire by defendant railway company on its right of way in Wood county, which fire spread over plaintiff’s cranberry lands and destroyed the crop and plants growing thereon. The action was tried before the court and a jury, and the plaintiff had a verdict.

The record herein having been remitted to the circuit court for Ashland county, to be returned to this court when a bill of exceptions should be settled in the case, with such bill attached thereto, and this court having declined to appoint counsel for plaintiff in error to prosecute his writ of error (84 Wis. 584) the circuit court made an order appointing W. W. O’Keefe, Esq., of Ashland, an .attorney of this court, to settle a bill of exceptions and to prosecute such writ…

The facts are stated in the opinion. contended, inter alia, that a warranty must be one of the terms of a contract of sale; that it must be upon consideration; that there can be no warranty that is not a contract; and that it must be entered into and accepted by both parties as an agreement between them. Hogins v. Plympton, 28 Mass. 97; Sjpald-mg v. Gonant, 146 id. 292; White v. Stelloh, 74 Wis. 438; Hopkins v. Tcmgueray,26 Eng. L. & Eq. 254, .15 C. B. 130; Parsons, Cont.

<p> Street railways: Ejection of boy from platform: Liability for injuries: Volunteer felloiv-servants: Special verdict: Findings by court on undisputed evidence. </p> <p>1. It was found by a special verdict that plaintiff, with other boys, got upon the front platform of an ele'ctjric car by invitation of the motor man; that the conductor did not warn them off until after the ear was in motion, and that he then used some force, either with hand or foot, whereby plaintiff was caused to fall from the car; that the -wheels of the car crushed plaintiff’s arm; that plaintiff was about eleven years old and, under all the circumstances, was not guilty of negligence proximately contributing to the injury; and that he sustained damage to a certain amount. The complaint had alleged that when plaintiff fell from the car it was going at a high rate of speed; and it was recited and found by the court, in the order for judgment and in the judgment, that all the allegations of fact in the complaint, beyond those covered by the special verdict, had been proved to be true by the undisputed evidence. Held, that the facts so found by the court will be treated as verities, in the absence of a bill of exceptions containing the evidence, and that the verdict, supplemented by such finding, is sufficient.</p> <p>2. If plaintiff is to be regarded as a passenger on the car, his forcible ejection therefrom, under the circumstances found, rendered the defendant liable.</p> <p>3. The complaint alleged that the car was in charge of a motorman on the front platform and a conductor; that it was a custom of the motormen on defendant’s cars to permit boys of plaintiff’s age to ride on the front platforms to a certain switch, “ for the purpose of inducing such boys to turn said switch for said employees;" that on the occasion in question the plaintiff, with the permission of the motorman “and in pursuance of the custom” mentioned, got upon the front platform of the car for the purpose of ridmg to said switch. Held, that these allegations did not show any purpose of plaintiff to aid in operating defendant’s railway such as would make him a volunteer fellow-servant of the conductor.</p>

<p>APPEAL from the Circuit Court for Wood County.</p> <p>Action to recover for services in storing logs in* the booms of plaintiffs intestate. Pending the action the defendant died and his executors were substituted as defendants. Plaintiff appeals from a judgment of nonsuit.</p>

<p> Lease of chattels: Termination: Sale by lessor: Talcing of property. </p> <p>A lease of chattels provided that in case of a sale of the property by the lessor at any time during the term of the lease he should forfeit to the lessee a certain sum as damages. The lessee was in default in payment of rent, and the lessor sold the property and demanded possession, tendering to the lessee the stipulated sum, which was refused. Held, that the lease implied an agreement that the lessor might terminate it at any time by a sale, and that the lessee was not entitled to damages for the taking of the property by the lessor and his vendee.</p>

<p> Marriage: Person under age of consent: Bigamy. </p> <p>The marriage of a person who, for want of age, is incapable of assenting thereto is not void in this state, but under sec. 2350, R. S., is voidable only by judicial decree.</p>

<p>ERROR to the County Court of Waukesha County.</p> <p>The facts are-stated in the opinion.</p> <p>contended, inter alia, that the actions could not be removed because the petition and bond were not filed in the county court — in which the actions were pending — within the time required by law. Noble v. Mass. Ben. Asso. 48 Fed. Rep. 337; Kansas City, F. S. <& M. R. Co. v. Daughtry, 138 U. S. 298; Stewart v. Stewart, 83 Wis. 364; Austin v. Gagrni, 39 Fed. Rep. 026; Burdieh v. Hale, 7 Piss. 96; Torrey v. Grant Locomotive Works, 14 Blatchf. 269; Shecld v. Fuller, 36 Fed. Rep. 609; Johnson v. C., M. & St. R. R. Go. 43 Wis. 431.</p>

<p>Foreclosure of mortgage: Sale: “ One year from the date of judgment: ” Inadequacy of consideration: Laches.</p> <p>1, Under sec. 3163, B. S., providing that'“no sale shall be made until the expiration of one year from the date of” a foreclosure judgment, if the judgment has been signed and filed with the clerk and the costs have been taxed and inserted therein it need not he recorded before the year will begin to run.</p> <p>3. Mere inadequacy of consideration is not a sufficient ground for setting aside a foreclosure sale.</p> <p>3. Where defendant, with full knowledge of all the facts, waited for more than two years and until the property had materially increased in value before moving to set aside a foreclosure sale, he was guilty of such laches as to deprive him of the right to make the motion on the ground of inadequacy of consideration.</p>

The action is upon an accident and life insurance policy, issued August 16, 1890, by the defendant, the American Masonic Accident Association, to Orin Hall, in which his wife, the plaintiff herein, is named as the beneficiary, to recover a death indemnity of $5,000. The risks taken by the company are classified with reference to employment and perhaps other conditions.

<p> Death by wrongful act: Pleading: Pecuniary injury: Survival of action. </p> <p>1. In an action under secs. 4255, 4256, R. S., to recover damages for the death of plaintiff’s intestate, who left no widow and whose children are none of them alleged to be infants, the complaint is held defective in not showing that there were any persons to whom pecuniary injury resulted from such death.</p> <p>2. An action to recover the amount of expenses incurred in consequence of a personal injury which was caused by defects in a highway and resulted in death, cannot be maintained by the personal representative of the deceased.</p>

<p>(1) Change of Venue: Convenience of witnesses: Waiver. (2) Contracts: Performance in specified time; Delay mused by other party.</p> <p>1. Where a defendant corporation liad the absolute right to have the place of trial changed to the county in which said corporation was located, plaintiff’s opposition to such change on the ground that the convenience of witnesses and the ends .of justice would be promoted by retaining the cause in the county in which it was brought, and his final consent to the change, did not constitute a waiver of his right to have the venue changed back to the original county on said ground, if the,court of the county to which the first change was made should in its discretion so order.</p> <p>2. Defendant having agreed in writing to pay plaintiff a certain amount for drawing lumber to defendant’s yard, to furnish a wagon for such purpose, and to pay twenty-five cents additional for each 1,000 feet if the whole quantity should be delivered in a specified time, plaintiff was entitled to recover the additional pay, although he did not complete the delivery in the specified time, if the delay was caused by defendant’s refusal to furnish the wagon or failure to furnish the requisite facilities for unloading the lumber in the yard.</p>

Action to recover, for personal injuries. The following facts appear, principally from the plaintiff’s own testimony: Plaintiff was a fireman upon defendant’s freight engine running from Chippewa Palis to St. Paul. He lived at Chippewa Falls, and his engine was kept at the roundhouse at Irvine, a small village a mile and a half westerly from Chippewa Falls.

This action was brought by the plaintiff as the owner of three mortgages on the premises described in the complaint, being a farm in Pierce… Held: and that he made the figures and brought, them to him ( Wilkinson). These figures were produced in evidence, showing an amount due of $5,782.28, July 9, 1890. Afterwards, about the 1st of September, they went to.see Wilkinson, and he said he did not know as he could do anything about it; that he would let them know in a few days.

<p> Ejectment: Pleading: Amendment: Equitable defense: Counterclaim. </p> <p>In ejectment against a corporation a proposed amended answer alleged that the lands had belonged to a firm consisting of plaintiff’s ancestor and another, and had been left in the hands of the latter as surviving partner, as personalty subject to the-firm debts, which were large; that in the settlement of the partnership affairs and for the continuance of the business said survivor had caused the defendant corporation to be organized, and had conveyed the lands to it in consideration of the payment of the firm debts, which it assumed. The judgment demanded was that plaintiffs take nothing by the action. Held, that the proposed answer was defective under sec. 8078, E. S., because stating an equitable defense without demanding. by way of counterclaim, a confirmation of the legal title in defendant, and that the court properly refused to allow it to be filed. [Winslow, J., is of the opinion that the Allegations of the answer are insufficient to constitute either a defense or a counterclaim.]</p>

The facts are stated in the opinion. The plaintiffs appealed from an order striking out their demurrer to a counterclaim in the answer. , They argued, among other things, that by the transactions alleged in the counterclaim E. S. Johnson abdicated and waived his right to possession of the land in question as surviving partner. Wellborn v. Coon, 57 Ind. 270, 2Y3-4; 2 Pates, Partn. sec. 717; Griffin v. Spence, 69 Ala. 393; 16 Am. & Eng. Ency. of Law, 1156.

On the petition of the district board of a joint free high school district, alleged to comprise the towns of Hull, Colby, and Green Grove and the city of Colby, in the counties of Clark and Marathon, an alternative writ of mandamus was issúed out of the circuit court of Clark county to John W. Lamont, town clerk of the town of Colby, commanding him to insert in the annual tax roll of that town a tax on the taxable property therein, to pay the proportionate share of the town…

<p> Suretyship: Contribution in action at law: Insolvency and nonresi-dence: Consideration. </p> <p>1. Under our statute (R. S. sec. 2600) abolishing the distinction between actions at law and suits in equity, a surety who has paid the whole debt may recover in an action at law against his cosureties who are solvent and reside in this state the same contribution as if they were all of the sureties bound.</p> <p>2. In an action by one guarantor of a note against another for contribution, the defendant cannot prove a want of consideration paid to the principal for a prior note which the note paid by plaintiff was given to renew.</p>

<p>APPEAL from the Circuit Court for MihoauTcee County.</p> <p>The defendant was, at the times hereinafter mentioned, and now is, a corporation organized under the laws of this state, engaged in carrying on the steam bakery and candy manufacturing business in Milwaukee. Tn the building in which the defendant transacted such business there was a steam freight elevator operated by the defendant. On March 21, 1890, the plaintiff’s intestate, while in the employ of the defendant in running and operating said elevator, was killed. On March 1, 1892, the plaintiff was appointed administratrix of his estate, and thereupon this .action was commenced, on the alleged ground that the said intestate was killed by the wrongful act,- neglect, and default of the defendant. The defendant answered by way ■of admissions and denials, and alleged contributory negligence or carelessness on the part of said deceased.</p> <p>At the close of the trial the jury returned a special verdict, to the effect (1) that the freight- elevator of the defendant, upon which said intestate lost his life, was not a reasonably safe appliance, as respected the person employed to operate it; (2) that the unsafe condition of said elevator was the proximate cause of the intestate’s death; (3) that the intestate was not of sufficient age and experience to comprehend the danger of operating said elevator; (4) that the intestate was not guilty of any negligence or want of ordinary care, in the operating of said elevator which proximately caused, or contributed to cause, his death; (5) that the boy did not try to shut the elevator door with his foot, nor did he, while so doing, lose his balance and fall partly from the east side of the elevator platform, and so get caught between the platform and the floor before he could extricate himself; (6) that said intestate did accidentally seize the cable by which the elevator was moved up and down, before he fell upon the platform, instead of one of the “ check lines,” so called, and his hand was thereby drawn into the drum around which said cable was coiled; (7) that the defendant was guilty of negligence in permitting said elevator, or causing the same, to be used in its business without alteration in the respect in which the same was dangerous to the person operating it; (8) that, if the court should be of the opinion that the' plaintiff was entitled to judgment, then they assessed her damages, in reference to the pecuniary injury to her from her son’s death, at $1,700.</p> <p>Judgment was rendered and entered upon said verdict in favor of the plaintiff, from which the defendant appeals.</p>

Croix County. The' action was commenced before a justice of the peace to recover a balance of $14.85, alleged to be due plaintiff for work as a trimmer in the saw mill of defendant company, performed in 1892. The complaint alleges a contract by the company to pay plaintiff $1.65 per day for his work; that he worked under such contract 98f days, thus earning $Í62.93; and that he has received only $148.08 on account thereof.

<p>APPEAL from the Circuit Court for St. Croix County.</p> <p>Action to recover damages for personal injuries alleged to have been caused, by the negligence of defendant and its servants. The facts are stated in the opinion.</p> <p>argued, among other things, that the injury was not shown to be the natural and probable result of any negligent act or omission on the part of defendant, and that plaintiff, not having stopped and listened for the train, was guilty of contributory negligence. Seefeld v. O., M. da St. P. R. Go. 70 Wis. 216; Sehmolze v. G., M. dk St. P. R. Co. 83 id. 659, 667; Butter-field v. Western R. Gorp. 10 Allen, 532; Schofield v. O., M. da St. P. R. Go. lié U. S. 615; Fmor v. B. d> L. R. Gorp. lié Mass. 350; Rheiner v. G., St. P., M. dk O. R. Go. 36 Minn. 110.</p> <p>contended, inter alia, that the crossing was an extremely dangerous one,, and hence that the law required defendant’s servants In charge of trains to approach it at a less rate of speed and use increased diligence in, giving warning of their approach. Continental Imp. Go. v. Stead, 95 U. S. 161; Winstanley v. G., M. dk St. P. R. Go. 72 Wis. 375; 1 Thomp. Neg. é22, sec. 5; Roberts v. G. dk N. W. R. Co. 35 Wis. 679; Guggenheim v. L. S. dk M. S. R. Go.- 66 Mich. 150; Yoalc v.- K. C. R. Go. 75 N Y. 320; Piper v. C., M. dk St. P. R. Go. 77 Wis. 2é7. Although the statute does not require a whistle to be blown for this crossing, yet in view of its character and the liability of an accident happening there the jury had a right to find that it was negligence on the part of defendant to omit such a signal. Oordell v. Kf. Y. ■0.'. dk H. R. R. Go. 70 N. T. 119; 1 Thomp. Neg. él9, sec. é; Wvn-stanley v. O., M. & St. P. R. Co.. 72 Wis. 375; Eilert v. G. B. dk M. R. Go. é8 id. 606; Rorer, Railroads, 1012-101é. The doctrine oí Favor v. B. da I. R. Gorp. lié Mass. 350 (in which it was held that the Massachusetts statute did not require the whistle to be blown except where the highway was crossed at grade), was considered and exploded in Rupard v. O. c& 0. R. Co. 88 Ky. 280. See, also, Penn. R. Go. v. Barnett, 59 Pa. St. 259, 263; Wakefield v. C. dk P. R. R. Co. 37 Yt. 330; Ransom v. C, St. P., M. & O. R. Co. 62 "Wis. 178, 184; 1 Thomp. Neg. 352, sec. 15; Id. 349, sec. 14; Norton v. Eastern R. Co. 113 Mass. 366. The running of the train, even at the statutory rate of fifteen miles an hour, might, under the circumstances, be negligence. Winstanley v. (7.,. M. <& St. P. R. Co. 72 Wis. 375; Guggenheim v. L. S. c& M. S. R. Co. 66 Mich. 15Ó; 1 Thomp. Neg. 418, sec. 2; linfieldv. O. C. R. Corp. 10 Cush. 562; Richardson v. N. Y. C. R. Co. 45 N. Y. 846.</p>

<p>APPEAL from the Circuit Court for St. Croix County.</p> <p>It is alleged in the complaint, in effect, that First street in Hudson is sixty feet in width, and runs north and south, and has existed for more than thirty years; that prior to May 17,1879; the Hudson & River Falls Railway Company constructed, and was then operating, two railway tracks on the westerly side of said street at the place in question; that May 17, 1879, one Elizabeth A. Denniston was the owner in fee simple of lot 1, block B, Willow River, now a part of said city, except five feet off the south side thereof, which lot is situated on the west side of said street and extended to the center thereof, and upon which there was then situated, and for many years prior thereto, a warehouse used and occupied for the purpose of storing and handling grain and other farm products, and that said' premises were chiefly valuable for such warehouse purposes; that May 17, 1879, the said Denniston, by an instrument in writing, granted to the said Hudson & River Falls Railway Company the right to construct, maintain, and operate its railroad in, upon, over, and through First street in said Hudson, in front of all of said lot except five feet off from the south s.ide thereof, at any and all points in said street in front of said lot east of a line drawn parallel with, and twelve feet west of, the center line of said main track of the railway of said company, as the same was at that time constructed; that November' 13, 1879, the said Denniston, by a warranty deed duly executed and acknowledged, sold and conveyed to the plaintiff all her right, title, and interest in and to said lot 1, described, and that the said plaintiff then became, and ever since has been, the owner in fee simple of said premises; that in 1881 the said plaintiff constructed an elevator in connection with said warehouse, and thoroughly prepared and fitted up the same for the business of handling grain to be shipped by railway to and from said warehouse, as well as by other means, and devoted nearly all of his entire time to said business, and that said business so conducted by him yielded him a net income of at least $1,500 per annum.</p> <p>The complaint further alleges that in 1882 the said company consolidated into and became the defendant companjq with other railroad companies, and that the defendant has since maintained and operated said line of road so built and constructed, but that the defendant never obtained or acquired any other or further or greater right to maintain its line of railroad over, through, or upon said First street or said lot 1, than those acquired from the Hudson & River Falls Railway Company as aforesaid; that in December, 1887, the defendant erected upon said First street, almost directly opposite to the plaintiff’s said lot' and warehouse, a passenger and freight station, consisting of one large building, and so located that the most westerly corner thereof extended nearly up to the east line of said street, ,so that the platform of said station house extended into said street a distance of nearly ten feet; that upon the erection of said station the defendant caused a track to be laid along the éasterly side of said street, and convenient to said passenger and freight station, and the same has been regularly and continuously used and occupied by the defendant for the loading and unloading of passengers and freight, and as a part of the main track of the defendant, and has, ever since such erection and occupation of such station house, occupied the entire width of said street at the point opposite lot 1, and for a long distance, both north and south of the same, for the purposes of its railroad business; that since the erection of said depot the defendant has used said street opposite said lot in such a manner as to entirely destroy the use of the same as a public highway, and to entirely prevent the use of the same for the purpose of teams or business of any sort along said street.</p> <p>It is further alleged that directly south of said lot the defendant has maintained, during all of said time since the erection of said depot, and does now maintain, a high and steep embankment through and along the center of said street, many feet above the natural surface of the same, and along which its said tracks are laid; that no crossing is maintained oyer or .passageway under said embankment of said railroad track at the intersection of the cross street south of the plaintiff’s warehouse, and that by reason thereof it has been practically impossible for teams which have been driven to said warehouse to leave the same without being driven for a great distance along the side of said railroad tracks, and by a long and circuitous route back to the business portion of the» city; that since the erection of said station the said track nearest to the plaintiff’s warehouse. has been used as a side track' for switching purposes and for the storing of cars and for standing cars for the loading and unloading of freight and for the making up of trains, and has been so used that trains or parts of trains are being almost constantly pushed up and down said side track opposite said warehouse, and for a great portion of the time during each day cars have been left standing upon the track opposite the plaintiff’s premises, at the first crossing north thereof, and which said crossing is the regular or usual way ordinarily used by residents of Hudson and vicinity of reaching plaintiff’s premises, and the only practicable route of reaching the same; that, by reason of such obstructions aforesaid, the approaches to said warehouse are, and during all the time since the erection of said station house have been, for many hours each day, totally obstructed, and egress from and ingress to said warehouse by teams, or business of any sort, entirely prevented; that by reason of such use of said side track, and the noise, commotion, and annoyance attendant upon the use of said premises for switching and yard purposes, it is practically impossible to drive teams up to or near said warehouse, without their becoming greatly frightened and excited, and in much danger of becoming uncontrollable, running away, and destroying themselves and other property; that, by reason of the neglect and failure of the defendant to put proper planking between and along said tracks opposite said warehouse, it is impossible for teams and wagons to turn around on said prem-' ises, even when said tracks are not obstructed by cars.</p> <p>The complaint alleges, further, that the use and occupation of said First street and said lot 1 by the defendant in the manner aforesaid, and for any other purpose than the running of its regular trains over and upon the same, was and is wrongful, unlawful, and without permission or au-. thority from the plaintiff or his grantor, and without permission or authority from the city of Hudson; that, by reason of said unlawful and wrongful use and occupation of said First street opposite lot 1, the busjness of the plaintiff at said warehouse fell off and declined, and soon thereafter was totally destroyed;, that by reason thereof the plaintiff was unable to attract or procure any business at said warehouse, and was finally compelled to abandon the said business and said premises for warehouse and elevator purposes; that the buildings on said lot 1 are of very little value, except for warehouse and elevator purposes; and that because of said wrongful use of said First street the rental .value of the .same has been totally destroyed, and the premises have been rendered almost entirely valueless for any purpose whatever. Wherefore plaintiff claimed $3,000 damages.</p> <p>From an order overruling a general demurrer to such complaint the defendant appeals.</p> <p>inter alia, that if, because of the occupancy-of the street, carefully and properly or qtherwise, by defendant, plaintiff has been embarrassed or inconvenienced, his embarrassment or inconvenience are the same in kind — though perhaps greater in degree — as that suffered by the public and all others living upon and using the street. Blood v. N. do L. R. Gorp. 2 Cray, 137; Ilaiss v. M. da L. W. R. Go. 69 Wis. 555; Hanlvn v. G. do H. W. R. Go. 61 id. 515; Harvard_ College v. Stearns, 15 Cray, 1; Barnum v. M. T. R. Go. 33 Minn. 365, and cases cited; Shero v. Oarey, 35 id. 424; Swanson v. M. do R. R. Boom Go. 42 id. 535; Lahhie v. O., St. P., M. do O. R. Go. 44 id. 438; Trustees v. M. do L. W. R. Go. 77 Wis. 158; Sinnott v. G. <& H. W. R. Go. 81 id. 95, 103. The deed of the common grantor was a conveyance of and release from any and all damage to the property by any railroad use of the street, and plaintiff is estopped thereby from maintaining this action.</p>

<p> Insurance against fire: Standard policy: Waiver of conditions. </p> <p>Oh. Í95, Laws of 1891, provides for a “Wisconsin Standard Policy,” to which all fire insurance policies issued in this state shall conform, and that other conditions may be written upon or attached to a policy, but that they “shall in no case be inconsistent with or a waiver of any of the provisions or conditions of the standard policy.” Held, that since the enactment of this law a local agent cannot, either in writing or by parol, at the time the insurance is effected, change or waive the provision of the standard policy prohibiting future additional insurance.</p>

<p>Voluntary assignment: Banicing corporation: Subsequent appointment ■ ' of receiver: Distribution of proceeds.</p> <p>1. A banking corporation, created and existing under the general hank-ing law of this state, may make a valid assignment of all its property for the benefit of its creditors.</p> <p>2. Where a banking corporation has made a valid assignment of all its property for the benefit of creditors, such property cannot be sequestered and a receiver thereof appointed, under secs. 3216, 3217, S. & B. Ann. Stats., so as to supersede the assignment and change the rule for the distribution of the proceeds of the property among creditors.</p>

<p> Burglary by tramps: Criminal conspiracy: Evidence: Instructions. </p> <p>1. In a criminal case, the court having repeatedly charged the jury that, to justify a conviction, “ no mere weight of evidence is sufficient unless it excludes all reasonable doubt,” and that “ the proof of guilt must he inconsistent with any other rational supposition,” it was not error to refuse to give an instruction to the effect that the defendants should not be- convicted upon mere suspicion, especially as there was abundant undisputed evidence in the case tending to prove the guilt of all the defendants.</p> <p>2. Defendants were vagrants and tramps, punishable under secs. 1543-1546, E. S., and sec. 1547d, S. & B. Ann. Stats., and had confederated together to continue their criminal career as such. Acting together as confederates they attempted to steal passage on a railway train, and refused to pay fare thereon. After being ejected from the train they continued together until late at night, when, being substantially together and acting in concert, three of them stole some chickens. An hour or two later a store about eighty rods distant was burglarized. After the store was robbed they remained substantially together, wandering through the country, until the next evening, when they were arrested in another county, and part of the property stolen from the store was found on one of them. When arrested they were sitting around a fire which they had lighted close to a railway track, and one of them was armed with a revolver. The carrying of the revolver, and probably also the building of the fire, was a criminal offense, in the commission of which they were all confederates. In an action against them for the burglary of the store, the above • facts, being conclusively proven, are held to establish a conspiracy and confederacy between them to commit crimes of the same nature during the night the burglax-y was committed, and to justify an instruction that the fact that a part of the stolen property was in the possession of one of them might be considered in determining the guilt of the others.</p>

<p>APPEAL from the Circuit Court for Grant County.</p> <p>Mandamus to compel delivery of the moneys, records, books, papers, seals, and other property belonging to the. office of the clerk of the circuit court for La Fayette county.</p> <p>It appears by the relation that the relator and the appellant tvere rival candidates for said office at the general election held November 8, 1892, the appellant then being the incumbent of said office; that the county canvassers decided that the relator received 2,343 votes, and the appellant 2,342 votes, and the county clerk thereupon issued to relator a certificate- of election in due form of law; that relator duly qualified by giving the bond and taking the oath required by law; that his bond was duly approved and deposited with the register of deeds of said county; that on the 10th of January, 1893, he demanded of appellant possession of the moneys, records, books, papers, seals, and other property of the office, but that appellant refused to surrender them, and has ever since pretended, without right, to discharge the duties of said office and receive the fees thereof.</p> <p>Upon this relation an alternative writ of mandamus issued out of the circuit court, to which appellant made return, admitting that the parties -were rival candidates for said office at the general election in 1892. The return further substantially admitted the canvass of the votes, the issuance of the certificate to the relator, and the relator’s qualification for the office, setting forth, however, some alleged defects in the canvass and the giving of the bond which are not regarded as of sufficient importance to state. The return then states as a defense that the appellant in fact received at such election 2,346 votes, and was elected by a majority of three votes; that four of the votes so cast for him at a certain precinct, though cast by legally qualified electors, were not counted for him by the inspectors, but were returned as defective, because they were indorsed by one ballot clerk only, instead of by both ballot clerks ■or by one ballot clerk and an inspector; that it was by the throwing out of these four votes that the relator’s apparent majority was secured. The return further states that appellant duly qualified for the office by giving bond and taking the oath of office, and claims that he has been and' is now clerk of such court, and will continue. to. be such until the first Monday in January, 1895.</p> <p>The relator demurred to the return as insufficient to constitute a defense or counterclaim, and the circuit court sustained such demurrer and ordered the issuance of the peremptory writ of mandamus as prayed in relation. Oates-appeals.</p>

<p>(1) Appealable order: Motion for judgment. (3, 3) Admission of fact on trial: Bill of exceptions: Returning record for correction.</p> <p>1. An order denying a motion for judgment on the minutes and special verdict, not followed by judgment for the opposite party, affects a substantial right and is appealable.</p> <p>3. A fact admitted in open court on the trial is one of the facts in the case, as much as the finding of a special verdict.</p> <p>3. Upon an appeal from an order granting a new trial on the ground that the findings of the special verdict were inconsistent, the bill of exceptions contained only the special verdict, although' respondent had asked the insertion therein of an admission of an important fact, made on the trial. On respondent’s motion the record is returned to the trial court, in order that motion may there be made for correction of the bill of exceptions.</p>

<p>Writ of prohibition: De facto judicial.officer.</p> <p>1. A writ of prohibition will not issue to test the title of a de facto judicial officer.</p> <p>■¡t. Where the” office of justice of the peace in a city exists de jure, a person appointed by the common, council to fill a vacancy in such office, and who has qualified, is a defacto, officer, even though the council had no power to make such appointment.</p>

<p>Supreme court: Original jurisdiction: Quo warranto.</p> <p>This court declines to take original jurisdiction of a proceeding in the nature of quo warranto to try the title to office of a justice of the peace in the city of Portage, the question presented not being one which affects the state at large.</p>

<p>APPEAL from the Circuit Court for Booh County.</p> <p>Motion to vacate the taxation of costs in the supreme court, after affirmance of the judgment appealed from.</p>

<p>APPEAL from the Circuit Court for Outagamie County.</p> <p>Action to foreclose a mortgage. The faóts are stated in the opinion. The plaintiff excepted to the refusal of the trial court to order judgment for any deficiency against the defendant Hennj Shepherd, and appealed from the judgment of foreclosure, which does not contain such an order.</p> <p>He contended, inter' alia, that the mortgagee could regard both Shepherd and his grahtee, who assumed the debt, as principal debtors; that Shepherd by his acts had made his grantee his agent to make payments; and that payments made by the grantee were the same as if made by Shepherd'himself. National Panic v. Cotton, 53 Wis. 31; Mcurshall v. Holmes, 68 id. 555; Clement v. Clement, 69 id. 599; Corbett v. Waterman, 11 Iowa, 86; Cross v. Allen, 141 U. S. 528; Tuttle v. Armstead, 53 Conn. 175; Calvo v. Davies, 73 N. Y. 215; Rubens v. Prvndle, 44 Barb. 336; Waters v. Hubbard, 44 Conn. 340; Purr v. Peers, 24 N. T. 178; Mechanics’ 8m. Bank v. Goff, 13 R. I. 516; Flagg v. Geltmaeher, 98 Ill. 293; Torrey v. Bank, 9 Paige, 649.</p>

<p> Deeds: Consideration: Parol evidence, </p> <p>A conveyance of their homestead by parents to their son, and a mortgage back, showed that the only consideration which he agreed in writing to pay was wholly inadequate, and that he had made some kind of an oral agreement as to the balance .of the consideration. In an action by the parents for a cancellation of the deed, it is held that the true consideration and the time and manner in which it was to be paid might be shown by parol.</p>

The complaint in this action has been before this court upon demurrer, and is reported in 83 Wis. 189. The first count in the complaint states a cause of action by a landlord against his tenants, under ch. 136, E. S., for waste in removing a barn from the demised premises, and claims double damages therefor.

<p> Voluntary assignment: Collection of taxes on personal property. </p> <p>1. Taxes assessed to an assignee for the benefit of creditors on account of personal property in his hands as such assignee are entitled to the preference of payment provided by sec. 1693c, S. & B. Ann. Stats.; and under sec. 1700 it is the duty of his successor in the trust to pay them before making any dividend, unless for any reason such taxes are illegal.</p> <p>2. An action by a county against an assignee for the benefit of creditors to recover delinquent taxes on personal property and to have them adjudged a preferred claim and to have the assignee ordered to pay them, is essentially an equitable action and cannot be maintained because the relief may be obtained in the assignment proceedings.</p>

<p> Contracts: Interpretation: Evidence. </p> <p>In an action to recover for making railroad ties under an oral contract, plaintiffs testified that defendant told them to make the ties the same as they had been making - them for M., a neighbor. Defendant, in his direct examination, testified that he told one of the plaintiffs he could go to work “ on the same terms he was working for M. as to specifications, and that the terms were to be the same as with the ties he was making for M.but on cross-examination he said: “I told him to go on and make the ties just the same as he had been for M. That was the words used.” Held, that the court was justified in assuming that by the contract the ties were to be made the same as those of M., and not on the same terms, and in excluding evidence of the terms of the contract with M. in respect to the manner in which the quantity of ties was to be determined, etc.</p>