Volume 87 — Wisconsin Reports

Action for damages for delay in the delivery of a telegram. Plaintiff resided on a farm about ten miles from the village of Iron River, Wis. His mother lived at Lisbon, N. D., with plaintiff’s brother, J. W. Summerfield. Defendant had an office at each of these places. October 23,1892, J. W. Summerfield left at defendant’s office at Lisbon a message addressed to plaintiff, care of Burt Clark, Iron River, reading as follows: “ Mother is dying. Come immediately.

At the times herein named the defendants, Wilson, Ciarle, Morrison, and Thatcher, were copartners doing business in Superior under the firm name of R. F. Wilson & Co. On March 14, 1893, this action was commenced against said defendants, and a writ of attachment issued therein, based upon an affidavit of one of the plaintiffs, from which it appears that the defendants were indebted to the plaintiffs in the sum of $366.32 over and above all legal setoffs; that the defendants…

This is a creditors’ action under sec. 3029, B. S., brought against F. M. Madsen, V. Madsen, bis wife, W. C. Brooks, and the Bank of Commerce, defendants, and the plaintiffs have appealed from an order sustaining a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and also from an order vacating an injunction restraining the defendants during the pendency of the action, according to the prayer of the complaint.

This action is brought to recover the contract price for digging a well, and for a mechanic’s lien. The action was tried by a jury, and a verdict was returned for the defendant. The errors claimed are in the instructions given by the judge to the jury.

Action to recover damages for personal injuries sustained by the plaintiff, a switchman in the employ of the defendant, while attempting to make a coupling. The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. To the point that plaintiff was guilty of negligence, they cited Lockwood v. C. c& N. W. B. Go. 55 Wis. 50; Norfolk d¡ W. II. Go. v. Cottrell, 83 Ya. 512, 31 Am. & Eng.

Action on a promissory note for $772, given by defendant to plaintiff, December 6,1887. The defendant admitted by answer the execution of the note, and alleged certain facts by way of defense, and alleged the same facts as a counterclaim.

This action was brought by the firm of Allen & Watter-son to recover against the defendant the damages claimed by them by reason of the breach by the defendant of a contract that they made with him November 18, 1891, by which they agreed to cut, haul, and deliver into and put afloat in Amnicon river, and drive to the mouth thereof, all the merchantable pine saw logs growing and being on the northwest quarter of a certain section 10 that would scale nine inches at the small…

This is an action against a sheriff and the sureties on his official bond for the misapplication by the sheriff of certain moneys realized by him from the sale of certain attached property. Two attachments against the property of Clark & Wardell were put in the hands of two different deputies of the sheriff, at different times, for service. One, in favor of one Fraser, was first delivered for service.

This action was commenced November 13, 1889. The complaint alleges, in effect, that the defendants have been partners since June 1, 1886, doing business at Watertown; that between June 17, 1886, and December 6,1888, the defendants, at sundry and divers times, borrowed money of the plaintiff, and purchased horses and hay of him, which money was delivered by the plaintiff to the defendants, and which horses and hay were sold and delivered by the plaintiff to the defendants at…

This is an action to recover damages for a personal injury sustained by the plaintiff while helping the defendant’s employees, temporarily, about the station at Milton Junction. The accident happened while the plaintiff ivas standing upon the steps of a car in a moving train, by being brought in collision with a freight car standing on a side track near to the cross track upon which the train upon which plaintiff was, was moving.

Action in equity, brought in the circuit court for Jefferson county.

Mandamus to compel the defendant to construct and maintain a guard wire above its trolley wires at certain points in the city of Janesville. The facts stated in the relation will sufficiently appear from the opinion. The appeal is from an order sustaining a demurrer to the relation and quashing the alternative writ.

This action was brought by the plaintiff to recover the value of the greater portion of á stock of goods sold and delivered by Hyman Nathan to the plaintiff, and seized a few days thereafter under writs of attachment in the hands of the defendant as sheriff of Clark county, in favor of Henry Benedict, a creditor of Hyman Nathan, on the ground that the sale to the plaintiff by Hyman Nathan was fraudulent and void as against his creditors.

<p> Debtor and creditor-; Fraudulent conveyance: Evidence. </p> <p>1. Before the sale of his land here in question, a debtor, being about to change his residence, had sold most of his personal property openly at auction, and had removed the balance of it without any attempt at concealment. Held, that the mere fact that he afterwards pretended, when called upon by his creditors, that he had no means with which to pay them, does not show fraud in the sale of the land.</p> <p>2. The evidence in this case (stated in the opinion) is held not to show any participation by the purchaser of land in the fraudulent intent, if any, of the vendor in making the sale.</p>

On December 1,1S88, John Loughney made a will, which was drawn by James Smith. The attesting clause was signed by said Smith and by W. F. Malone, M. D., as attesting witnesses.

This is an action in equity, by judgment creditors of Jacob Silber, to set aside as fraudulent a chattel mortgage upon a stock of goods, and certain judgments entered upon judgment notes, and execution levies thereunder upon the same goods. It appears that Jacob Silber was a merchant doing business át Waupun, in Dodge county, and at Brandon, Fond du Lac county.

This action was brought to recover damages sustained by the plaintiff, an employee of the defendant, as brakeman, in consequence of a collision caused, as it is alleged, by running a switch engine out from a spur track upon the main track when the regular, expected, and approaching train ivas within twenty-five rods of the switch and in plain sight, and that the injury was the result of the carelessness and negligence of the engineer in charge of the switch engine.

The action is brought upon a benefit certificate issued by the defendant to one Hubert Johns, whereby it agreed to pay to the beneficiaries of the said Hubert Johns, upon his death, eighty per cent, of such sum as an assessment levied upon its members under its rules would amount to, not exceeding $4,000.

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

The complaint alleges, in substance', that the plaintiff is the mother of Duncan Kay, who was committed to. the 'Wisconsin Industrial School for Boys, August 15, 1893, and is still an inmate thereof; that plaintiff was a tenant of defendant at that time and up to September 1, 1893; that defendant, knowing these facts, on the 15th day of September, 1893, maliciously published on two large placards on either side of his express wagon, and for many days carried the same through…

The plaintiff, a manufacturer of steam boilers in Milwaukee, brought an action against the defendant, engaged in the foundry and-machine business at Ft.

The action is to recover for services rendered and materials furnished by the plaintiff in publishing the Brown County Democrat newspaper for the defendant. The trial was by the court without a jury.

On August 1, 1893, the appellants, Gerhard and Henry Bong, were copartners in business, and engaged in the sale of goods. On the day named said firm made a voluntary assignment for the benefit of their creditors to Jules Par-mentier, who at once entered upon his duties as assignee, took possession of the stock of goods owned by said firm, and continued to hold the same under said assignment.

This action was commenced September 28, 1891, to perpetually restrain the defendants from interfering with or interrupting the natural flow of the Oconto river at the plaintiff’s pulp mill and mill dam, so as to impair the usefulness of its water power, and for $15,000 damages already caused in 1891, prior to the commencement of this action, by the wrongful acts complained of, and such damages as should accrue thereafter during the pendency of this suit, and for costs.

This action was brought by three several claimants, namely, Williams, Upham & Co., Leihy & Garnich, and A. A. Bigelow & Co. to enforce liens for the amount of their several claims against the docks, sawmill, waterfront-age, and appurtenances' on a lot of land lying along and upon the bay or lake shore at Washburn, in the county of Bayfield, not exceeding forty acres, and particularly described in the complaint, which belonged to the defendant The Northern Pine Land Company,…

<p>\t) Counties: Powers of board: Employment of physician by the year. (2, 3) Physicians and surgeons: Right to collect fees: Pleading: Evidence.</p> <p>1. A county board may employ a physician by the year to attend to persons confined in the jail and poor persons who are a county charge.</p> <p>2. In an action to recover for medical sei'viees the complaint alleged that plaintiff had been employed by defendant as a physician and that a certain sum was due him for his services as such. Held, that on a demurrer ore tenus it would be implied from these allegations that plaintiff was entitled under sec. 1436, E. S., to compensation for his services, by reason of having received a diploma or being a member of a medical society.</p> <p>3. Evidence that plaintiff is a practicing physician and a graduate of an incorporated school of medicine is sufficient to show that he is entitled to collect compensation for his services, under sec. 1436, E. S., and it may be inferred therefrom that he has received a diploma as required by that section.</p>

Action upon an express oral contract for wages. In justice’s court there was á judgment in favor of the defendant, and the plaintiff attempted to appeal to the circuit court. In that court the plaintiff had a judgment, from which the defendant appeals. Other facts are stated in the opinion.

The defendant is a foreign corporation and the owner of a certain blast furnace and building, together with the machinery, equipments, and other appurtenances thereunto belonging, and known as the “ Ashland Blast Eurnace,” used in the manufacture of pig iron.

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

This action was brought to recover damages, alleged to have been sustained by the plaintiff by the death of his horse, in consequence of the negligence of the defendant company in transmitting a message for the plaintiff from “Westboro, Wis., to Poster Bros., at Eau Claire, Wis.

<p>Flections: Exclusion of legal votes: Quo 'warranto.</p> <p>The person receiving a plurality of the legal votes actually cast at an election honestly conducted is entitled to the office although, through an error of judgment, the inspectors excluded votes of qualified electors sufficient in number to have changed the result.</p>

The facts are stated in the opinion. to the point that the county, having paid the salary to the defaeto officer while in office, cannot be compelled to pay it again to the officer de jure, cited Mechem, Pub. Off. § 332; o Am. & Eng. Ency. of Law, 110; Sigur v. Crenshaw, 10 La.

The plaintiff was the owner of a farm of forty .acres, on which he resided, and through a portion of which the Black river flowed. In 1S89 the defendants built a tannery for the manufacture of leather on said Black river, about one mile above the plaintiff’s premises, in the city of Medford.

APPEALS from the Circuit Court for Bayfield County. These actions were brought for the purpose of canceling certain tax- certificates against the property of the plaintiff at Washburn, Bayfield county, on tax sales of 1890 and 1891, upon the ground that the property is railway property and exempt from taxation. Washburn is the terminal point on Lake Superior of one branch of plaintiff’s railroad, where the traffic on the road is transferred to or received from lake carriers.

This action was brought to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant on the 19t.h of November, 1892.

<p> Municipal ordinances: Amendment: Repeal, </p> <p>Where a municipal ordinance provides that a former ordinance “ is hereby amended so as to read as follows,” any provisions of the former ordinance not found in the later one are repealed.</p>

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiffs.</p>

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>The amended complaint alleges, in effect, that the plaintiffs, being nineteen in number, bring this suit on their behalf and on behalf of all other creditors of the defendant corporation (the Nimikon Iron Mining Company) having claims similar to theirs, to wit, for work, labor, and services against the said corporation and against the other defendants as stockholders thereof, due to the clerks, servants, and laborers of the defendant corporation for services rendered to said corporation by them as such, not exceeding six months’ services in any one case; that at the times mentioned the said corporation was duly organized under the laws of this state; that the capital stock thereof was the sum of $1,000,000, divided into 40,000 shares of $25 each; that the other defendants were stockholders thereof, and the holders of stock therein, to the number of shares set opposite their names, respectively, and that each share was of the par value of $25, — -giving a list of 168 defendants, with the number of shares by each set opposite to his name, and alleging, in effect, that certain clerks and servants named performed labor and services for said corporation, not exceeding six months in any one case, stating also the amount due therefor from the corporation to each; that such claims for labor and services thus due were, for valuable consideration, assigned to the various persons who appear as plaintiffs in this action; that no part thereof had been paid; that the plaintiffs ask that all persons having similar claims may be discovered, if any there be, and that their claims may be discovered, if any there be, and that the claims may be included in the amount adjudged due and ordered paid into court by such stockholders for the benefit of such creditors of said corporation; that said corporation is wholly insolvent and destitute of property, and has no property or effects whatever, out of which a judgment in favor of the plaintiffs could be realized, or any part thereof; that the several claims of the plaintiffs for such services do not exceed six months’ services in any one case, or six months’ labor of any one individual, performed for said company; and prays that such stockholders be adjudged and decreed liable for the amount of the plaintiffs’ demands, and all similar demands which may be set out and proven in this action, to a sum equal to the par value of the stock held by them as aforesaid, and that they be ordered to pay the same, or so much thereof as may be necessary to satisfy said claims and the costs of this suit, into court, for the persons so entitled.</p> <p>On July 23, 1892, upon an order to show cause based on an affidavit and the record, the court ordered that the name of Philip Birdie be stricken from the title of the summons and amended complaint, as plaintiff therein. On February 4, 1893, upon an affidavit filed in the cause, from which it appeared that the several claimants, Foster, Boberts, Marks, Bossi, Yallance, Earle, Sola, and Berge, not then parties to this action, had such interest in the subject matter of the controversy as required them to be made parties plaintiff herein for their due protection, and they, having claims similar to those of the plaintiffs herein, ought in equity to be made parties plaintiff herein and allowed to prosecute their claims as such, the circuit judge ordered that each of them be made parties plaintiff in this action and allowed to prosecute their said claims in this same action as fully as though they were originally parties plaintiff herein, upon their serving their complaint setting forth their said claims according to law, together with a copy of said affidavit and said order, upon those defendants who have already appeared therein or who might thereafter lawfully appear, in sixty days from the. date thereof. On July 17,1893, a copy of said order attached to the amended complaint in the action was served on such defendants. On September 24, 1893, the several defendants represented by Turner & Timlin, and the defendant Gile, represented by Silverthorn, Hurley, Eyan & Jones, upon affidavits and the records filed herein, moved the court to set aside the order of February 4, 1893, and for an order for judgment for costs against the plaintiff whose name was stricken out of the record by the order dated July 23,1892. Whereupon, it was ordered by the court, October 4, 1893, that said motions be denied with five dollars costs of each motion. From that order the defendants W. B. Buckingham, M\ Wad-leigh, A. W. Rich, Eva D. Olemens, H. 8. Benjamin, R. G. Richter, and L. D. Benjamin appeal.</p>

<p>APPEAL from the Circuit Court for Price County.</p> <p>This is an action for the wrongful conversion by the defendants of one span of horses, two yok'e of cattle, one cook stove, fort}1- pairs of blankets, fifteen quilts, and five sets of logging sleighs; and the plaintiff claimed title thereto under a chattel mortgage made by one Houghton, who had possession of the property when it was taken by the defendant Hunt, as sheriff, under an execution in favor •of the defendant the State Bank of Phillips against said Houghton. Until the sale the property was left in and about Houghton’s barn, in charge of a custodian. The plaintiff notified both defendants of his title and claim to the property, and forbade the sale, demanding its release or return; but it was sold to various purchasers. The next day after the sale the defendants, thinking that an insufficient or mistaken levy and sale thereof had been made, returned to the said Houghton, and left in his barn, all the property sold, except the larger yoke of oxen, eleven pairs of blankets, and one cook stove; but both the plaintiff and Houghton declined to accept the property. The horses 'and yoke of oxen were turned by Houghton out of his barn. He subsequently hired them out for their keeping, the other property remaining in the barn.</p> <p>The jury found a special verdict, among other things, that the defendants converted the property described in the complaint as alleged; that the defendant Hunt, after making an attempted levy and sale, returned all of said property and left it in the possession of Houghton, with the exceptions already stated, before the commencement of the .action, and notified the plaintiff of the facts; that the value of the property sold and retained by purchasers was $150, and the value of the property so returned was $580. The plaintiff moved, on the verdict and minutes of the court, for a judgment against the defendants for the value of the entire property, but the court denied the motion, and gave judgment in favor of the plaintiff for $150 damages and costs, from which the plaintiff appealed.</p>

This is an action under ch. 139, Laws of 1891, to recover, “ as for a conversion,” the amount of a claim of lien which the plaintiff claims to have had upon certain railroad ties which he claims the defendants caused to be transported out of the state.

<p> Municipal corporations: Injury to person from defective crosswalk: Instructions to jury. </p> <p>1. In an action against a town for personal injuries alleged to have been caused by a defective crosswalk, an instruction defining the degree of care required of the plaintiff as such “ as a person would ordinarily use under the same circumstances,” and “ such care as people ordinarily use under the same circumstances,” is erroneous.</p> <p>2. An instruction that the statute in regard to defective highways “makes the town absolutely liable for all damages sustained by the person or property of any person traveling thereon,— there being no negligence on the part of such person,” is erroneous because it omits the conditions of the town’s liability.</p> <p>3. An instruction that “it was the duty of the town to have protected any person traveling upon the street from any liability which they might suffer on account of this alleged defect,” was erroneous, as tending to confuse the jury.</p> <p>4 Instead of giving or refusing to give the instructions asked by defendant as the law of the case, the court said to the jury: “ These are the requests of the defendant which I have read to you, and you may use them as far as they are practicable in arriving at a verdict” Held, error.</p> <p>5. Instructions to the jury should be clear and explicit and to the point, and so brief as to be emphatic.</p>

For several years prior to June, 1893, the defendant’s assignor, A. C. Probert, conducted a banking business at Washburn under the name of the Bank of Washburn. On May 24, 1893, the plaintiff, a corporation at Chicago, sent a draft for $99.67, on one Lemke, to the Bank of Washburn for collection. On June 2, 1893, the draft was presented to Lemke, and paid by his check on the Bank of Washburn on the same day.

Action for personal injuries. Plaintiff was an employee in defendant’s sawmill, and had been such for about twenty days before the 15th day of July, 1891, when the injuries complained of occurred. He was twenty-three years of age. His duty was to take edging and slabs from a certain line of rollers and put them on the “slashing” table, in which were a number of “ slashing ” saws; and when at work he stood in an alley between the slashing table and the said line of rollers.

This action was brought to recover the amount of two promissory notes given by the defendants to the plaintiffs, one for $287.50, and the other for $580.72, less the sum of $50 paid June 4, 1892, and $400 paid June 22, 1892.

APPEALS from the Circuit Court for Oneida County. This was an action for the settlement of partnership accounts and dealings. From the judgment of the circuit court both parties appeal.

Action for personal injuries alleged to have been caused by the insufficiency or want of repair of a street in the defendant village. The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.

On July 3, 1 SOI, the plaintiff and defendant entered into a written agreement whereby the plaintiff agreed and undertook to furnish all material and labor, and build, erect, and construct, in a good, thorough, and workmanlike manner, all tlie brickwork in and about the new flouring mill then in process of erection by the defendant, according to the plans and specifications therefor, and under the direction and supervision of the defendant’s head millwright in charge thereof.

Action for personal injuries. The plaintiff was an employee of defendant in its switch yards at Elroy, Wis., for about twenty months prior to the 2Tth of1 November, 1890, when the accident happened. Up to the 24th of November he had been helper in the night crew in the yard. The night crew consisted of the yard foreman, a helper, an engineer, and a fireman.

This ivas a proceeding by mandamus against the defendants as supervisors of the town of Knapp in Jackson county, to compel them to levy and insert in the tax roll of said town a tax in the sum of $766.21, with interest thereon from December 13, 1892, at six per cent, per annum up to the time when the warrant for the collection of taxes for that year would expire, in order to pay an alleged balance due from the town of Knapp to the town of Millston, arising under the…

Action for personal injury at a railroad crossing. On November 28, 1892, the plaintiff started from his home to drive to the city of Kenosha, four miles away. It was a cold, windy day. He rode in a covered buggy, with side curtains on. He was about eighty years old. He was blind of one eye, and his hearing was dull. He had lived in the neighborhood for many years, and was entirely familiar with the situation. He drove a steady horse, that was not afraid of cars.

Action for personal injuries caused by a defect in a sidewalk. The facts are sufficiently stated in the opinion. cited Achtenhagen v. Watertown, 18 Wis. 331; Langhoff v. M. & P. du O. R. Go. 19 id. 489;.

Action to recover for injuries to the plaintiff’s horses, harnesses, wagon, and load of pies, which were struck by an electric car of the defendant at the junction of Grand avenue and Eighth street in Milwaukee. The defense is a general denial and contributory negligence. At the close of the trial, the court directed a verdict in favor of the defendant. From the judgment entered thereon the plaintiff appeals.

Roberts commenced an action of unlawful detainer before the defendant Harrington, a justice of the peace, against the plaintiff and one Mrs. Fatzinger.

■This is an appeal from an order of the circuit court of Milwaukee county denying the motion to quash a writ of certiorari issued out of that court to a justice of tbe peace to reverse a judgment rendered by him in an action for unlawful detainer, in which the above-named defendant was plaintiff, and the above-named relator and one Mrs. R. L. Eatzinger were defendants.

The defendant is a fire insurance company. On January 26, 1891, it issued a policy of insurance to the Island Sash & Door Company, on its factory, and stock in its dry kilns and warehouse, and lumber in the yard, for the amount of $1,000. On the 7th day of June, 1891, a loss occurred. On the 18th day of June, 1891, the loss was adjusted at $691.8S, which sum the defendant promised to pay. After-wards, the Island Sash & Door Company sold the claim to the plaintiff.

, Action to recover for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. to the point that there was no presumption of law that a person killed at a crossing did not stop to look and listen, cited Hoye v. G. c& IV. W. JR. Go. 67 Wis. 1; Mynning v. JD., L. cfi JV. JR. Go. 64 Mich. 93, and cases cited; Penn. JR. Go. v. Weber, 76 Pa.

On Eebruary 18, 1881, the defendant, Becker, was retained by the plaintiff, Briggs, to commence and prosecute an action of libel in favor of said Briggs and against John S. and Emeline Brooks and Erancis Estabrook, and also an action for slander in favor of said Briggs and against said John S. Brooks. On February 28, 1881, he commenced those actions in the supreme court of New York, in and for the county of Kings, by the service of a summons and complaint therein.

Action to recover damages for breach of an alleged contract to insure plaintiff’s property.

This is an action upon a contract between the defendant and Ludwig Bachmeyer, whereby he insured his life in the sum of $2,000, upon the conditions therein stated, for the use and benefit of the plaintiff, who was his wife. The case was before this court in 82 Wis. 255, where the principal facts are stated, and a judgment in favor of the respondent was reversed and a new trial awarded upon the grounds there stated.

CertioeaRi to the Circuit Court for Milwaukee County. The facts are stated in the opinion. They contended, inter alia, that no statutory authority can be found to authorize the grand jury to continue its sessions and return indictments after the term for which it was impaneled, and it had no such authority outside of the statute. State v. Winebrenner, 67 Iowa, 230; Comm. v. JBannon, 97 Mass. 214; Barger v. State, 6 Blackf. 188; State v. Harden, 2 Kieh.

On June 5, 1883, one H. S. Alien, being then insolvent and indebted to the Uphams and James M. Smith, hereinafter mentioned, purchased of the Goddards and the Chis-holms certain real estate in the city of Chippewa Falls, and paid the entire consideration therefor, and took the conveyance and title thereof by warranty deed in the name of the defendant Alice G. McRae, in fraud of his said creditors. On March 6,1886, the said IT.

On June 25, 1890, Henry Hyman, a sole trader in business, gave his judgment note to Marcus Silber for $6,000. On June 26, 1890, he gave another judgment note to Louis Silber for $4,000. On April 16, 1891, Henry Hyman took his son, J. 0. Hyman, in partnership with him, and J. C. then indorsed said notes. On July 21, 1891, H. and J. C. Hyman gave to Louis Silber a note for $932.60.

Action to recover demurrage for the detention of freight cars.

The action was commenced June 26, 1893, upon a complaint framed under sec. 3216, E. S., for the sequestration of the property, effects, and franchises of the defendant Lappen Furniture Company as an insolvent corporation.

<p>(1, 2) Justices' courts: Garnishment: Jurisdiction: Notice: Special appearance. (3) Certiorari: Omission of signature to jurat: Amendment.</p> <p>1. In garnishment proceedings before a justice of the peace the notice of attachment prescribed by sec. 3713, S. & B. Ann. Stats., was published by mistake instead of the notice provided for in sec. 3718. Held, that the justice acquired thereby no jurisdiction of the principal defendant.</p> <p>2. An appearance by the principal defendant in the garnishment proceedings for the purpose of claiming that the money owing to him by the garnishee was exempt, was not an appearance in the main action so as to confer jurisdiction of his person therein.</p> <p>3. Where the notary omitted to sign the jurat to the verification of a petition for a writ of certiorari, it was proper, upon a motion to quash the writ, to allow the defect to be cured by his signing nunc pro tunc.</p>

The petitioner, John II. Van Dyke, sought to have the sum of $15,871.30, collected and held in trust by Frederick Day for him, and by him deposited in the Plankinton Bank, with interest, ordered and adjudged to be paid to the petitioner by William Plankinton, the assignee, out of the assets of the Plankinton Bank in his hands as such assignee, in preference to all other creditors of the bank, or, if not so paid, then, as a general creditor of said bank, equally with its…

The complaint alleges the incorporation and organization of the defendant; that it operates cars by means of electricity as a motive power; that said cars are propelled by mechanical appliances, known as “ electric motors,” placed under the floors of said cars and between the wheels thereof, to which said motor electricity is conducted by means of a brush pressing upon, and in contact with, a cylinder of polished brass, which rotates when the machinery is in motion, and…

Action to recover salary. The complaint alleges that plaintiff made a written contract with defendant, May 15, 1893, whereby he agreed to act as traveling agent for defendant for one year at a salary of $150 and expenses, payable monthly, with a clause providing for thirty days’ notice in case defendant desired to discontinue the employment.

APPEALS from the Superior Court of Milwaukee County. These actions were each brought by the plaintiff to recover the amount claimed to be due on divers promissory notéis given by the defendant to the Commercial Bank of Milwaukee, and for the amount claimed to be due on certain notes indorsed to it by the defendant, he having been charged thereon as such indorser.

<p> Voluntary assignment: Replevin. </p> <p>Property in the hands of an assignee under a valid assignment for the benefit of creditors is not in custodia legis, and replevin may be maintained therefor.</p>

<p> Injury from defective sidewalk: Service of notice: Admission: Evidence. </p> <p>1. In an action against a town for injuries caused by a defective sidewalk, an admission in the answer that “plaintiff caused some notice in writing to be served on the supervisors of this defendant, pretending to describe some insufficiency and want of repair to the said alleged sidewalk, and that damages were claimed of this defendant for such alleged injury, which said plaintiff claimed therein to have resulted to her in consequence of the alleged defect in the sidewalk,” is not an admission of due service of the notice required by sec. 1389, R. S.</p> <p>S. The evidence in this case (stated in the opinion) is held not to show service of the notice required by sec. 1339, R. S., within ninety days after the injury.</p>

The complaint alleges, in effect, that during the preceding year the defendant had been engaged in exploring and mining, under the name of the Richard Thomas Mining Company; that between March 1 and May 1, 1893, one A., at the special instance and request of the defendant, did work and labor for the number of days named, for the defendant, at the agreed price per day named; that the defendant thereby became indebted to the said A. in the sum therein named, which sum the…

This was an application to the county court of Milwaukee county for an order requiring the executors of the last will and testament of Robert Gunyon, deceased, to surrender possession of certain real estate of said deceased to appellant.

This action was commenced January 27, 1890, against John Yan Nortwick, of Batavia, Ill., since deceased, and the Green Bay & Mississippi Canal Company, defendants. The executors of said Yan Nortwick, William M. Van Nortwick, and John 8. Van Nortwick, as well as divers others, were afterwards made defendants, upon whom the summons and complaint were served by publication of summons and mailing copies of summons and complaint.

This is an action in garnishment. It was commenced in August, 1891, in justice’s court. It was tried in justice’s court, then appealed to tbe superior court of Milwaukee county, and tried in that court; then appealed to this court, and sent back for a new trial.

<p>(1) Reference: Findings: Appeal. (3) Attorney and client: Action for services.</p> <p>1. Where the evidence is conflicting and involves the credibility of witnesses, a referee’s findings stand upon the same footing as the verdict of a jury and should not be disturbed unless against a clear preponderance of the evidence.</p> <p>2. In an action for the value of services rendered by an attorney at law, it is held upon the evidence (stated in the opinion) that the findings of a referee as to the contract between the parties should have1 been confirmed by the trial court, and judgment in favor of the plaintiff is ordered in accordance with such findings.</p>

This action was commenced August 26, 1893. The complaint alleges, in effect, that December 12,1884, one William E. Lamberton, the father of this plaintiff,.

■ Action by a subcontractor against his principal contractor to recover a balance due for mason work upon a building. In 1889, one Buestrin, defendant’s testator, contracted with one Ricker to erect a building in the city of Milwaukee, on Ricker’s land. Buestrin contracted in writing with plaintiff to do the mason work on the building for the sum of $4,448.

On August 21, 1893, the plaintiff bank owned a promissory note made by the defendant the Butler-Mueller Company, with Mueller Son guarantors of payment, on which there was unpaid the sum of $1,000, with a small amount of interest. On that day the plaintiff commenced an action against all the parties liable on the note to recover the balance due upon it.

This action was brought to obtain a perpetual injunction restraining the defendant Franla Steeps, who had recovered a judgment against one Edward Davis for $61.04, docketed in the office of the clerk of the circuit court of Winnebago county January 4, 1889, and the defendant Eloeokn&r, as sheriff of Winnebago county, from selling the premises described in the complaint on execution issued out of said court upon said judgment.

<p> Master and servant: Defective appliances: Injury to servant not in the line of his employment: Negligence of fellow-servant: Special verdict: Instructions to jury: Appeal. </p> <p>1. In an action for personal injuries sustained by a boy employed in a match factory through the fall of a freight elevator alleged to have been in a defective and unsafe condition, it is held, upon the evidence, to have been error not to include in the questions submitted for a special verdict the questions whether plaintiff was injured while acting in the line of his employment, and whether he was injured by reason of any negligence of any co-employee or servant of the defendant.</p> <p>2. The trial court should have sustained an objection to the question, “Was a co-employee of the plaintiff guilly of negligence which with the negligence of the defendant contributed to the injury?” and should have substituted therefor the second of the questions above mentioned.</p> <p>0. The question above quoted having been submitted, it was error to refuse to instruct the jury that if the elevator was provided with proper appliances and was made of suitable material, and the injury was caused by its being improperly handled by a co-employee, and would not have happened without some improper or careless act of such co-employee, then in answering said question they should state that the injury was caused by the negligence of the co-employee alone.</p> <p>4. The question, “If the jury find that the defendant had defective appliances and incompetent men to operate the same, did the plaintiff assume the risk thereof? ” is criticised as obscure, and it is held to have been error to refuse, in connection therewith, to instruct the jury that if plaintiff was not employed or directed by defendant or the foreman to work at or upon the elevator, and he was out of the line of his employment, and for the purpose of his employment it was unnecessary for him to be at or upon the elevator at the time of the injury, they should answer said question in the affirmative.</p> <p>5. Where there is no general verdict and, through the insufficiency of the special verdict, the jury has failed to find on material questions, this court will not pass upon such questions on appeal.</p>

APPEALS from the Circuit Court for Winnebago County. On March 31, 1890, the plaintiff and one Richard Abrams were each the owners of four several horses at Harrison, Lincoln county, Wis., and shipped the same upon the cars of the defendant from that station to Oshkosh.

<p>APPEALS from the Circuit Court for Winnebago County.</p> <p>This is an action in equity, brought by Trester, a taxpayer and resident of the First ward of the city of Sheboy-gan, to enjoin the city and its officers from paying to one Zimball the amount of certain promissory notes executed by the city officers to said Zimball. It appears by the pleadings that at a meeting of the common council of the city held April 7,189»0, Zimball made the following written. proposition to the city: :i Proposition submitted by August Zimball to the mayor and common council, as proposition submitted to them for consideration: For the sum of $1,175, to be paid as follows: $300 at ensealing, $500 February 1st, 1891, and $375 on July 1st, 1891,— I will cause a deed of dedication to be executed to the city of Sheboygan for a street extending through my property from Eighth to Sixth streets, and cause same to be graded and sidewalks put down, either plank or brick, six feet wide, all to be completed before August 1, 1890.”</p> <p>This proposition was accepted by the council at the same meeting, but no fund was designated out of which the payments -were to be made; and on the 18th day of April, 1890, Zimball executed and delivered to the city a deed of dedication, for street purposes, of the strip of land named in the written offer, and the city paid the sum of $300 thereon, and executed promissory notes for the balance, payable according to the terms of the offer. These notes have not been paid, and this action is brought to prevent their payment.</p> <p>The city immediately opened the street, and it has since been used by the public as such. No proceedings were taken to condemn the land. The action was originally brought against the city, the mayor, clerk, comptroller, and treasurer. These defendants answered, not denying any of the material allegations of the complaint, and praying that Zimball be made a party defendant, in order that a complete determination of the matters in controversy might be had. Thereupon Zimball was brought in, and answered to the merits, substantially admitting the facts above set forth. In his answer he also alleged the same facts, with others, by way of counterclaim as against the plaintiff and the city of Sheboygan, and alleged that he graded the alleged street and put sidewalks thereon as proposed in his offer, and claimed that by reason of all the facts the city was estopped from contesting his claim for payment of the notes, and prayed for judgment establishing the validity of the notes, and for judgment against the city for the amounts due thereon, or, in case the proceedings be held void, that the deed of dedication be declared null and void.</p> <p>No reply appears to have been made to the so-called counterclaim by any of the parties, and the case was tried before the court. The evidence was brief, and did not change materially the facts set forth in the pleadings. The circuit judge made findings of fact in accordance with the foregoing statement, and held that the plaintiff was entitled to an injunction against the payment of any sum on the contract out of the First ward fund, but that the sums represented by the notes were a valid charge on the general fund of the city, and that Zimball was entitled to judgment against the city for the amount of the unpaid notes and interest and costs. Judgment was entered in accordance with the findings. The defendant city appealed from the entire judgment. The plaintiff, Trester, appealed from the whole judgment, except that part which enjoined the payment of any sum out of the First ward fund, and that part which awarded him costs. Both appeals were argued together.</p>

<p>APPEAL from the Circuit Court for Manitowoc County.</p> <p>The plaintiff sues as assignee of the Manitowoc Manufacturing Company, a Wisconsin corporation, which was engaged in the manufacture and sale of school, church, and opera-house furniture, and other furniture and specialties, and the defendant is an Illinois corporation, and during the times named in the pleadings was engaged in buying, selling, and manufacturing the same kinds of furniture. The action is brought for the recover}7 of $10,000 for goods, wares, and merchandise of the kind above mentioned, sold and delivered by the plaintiff’s assignor to the defendant. The defendant set up two counterclaims for damages, in all in the sum of $370,000, for alleged breaches of two certain written agreements executed by the plaintiff’s assignor and the defendant; one of them, dated February 8, 1889, was to terminate February 1, 1894, and the other and material one was made June 18, 1890, and was to continue in force until December 81, 1894. The question presented was whether these contracts were valid or void as against public policy, as being in restraint of trade.</p> <p>By the first contract it was agreed that the plaintiff’s assignor should make, in such quantities and kinds as might be ordered by the defendant, and deliver the same free on board at Chicago, Ill., opera and church chairs, pews, and settees, bank, church, hall, lodge, office, store, and school furniture, including store stools, measuring machines, goods and book shelves, and other specialties, all of which were “ to be made for and sold to the defendant only, during the term of this contract,” and the defendant agreed “ to purchase $250,000 worth of goods under this contract ” of the plaintiff’s assignor.</p> <p>By the second contract the plaintiff’s assignor was to make and deliver to the defendant, free on board at Chicago, goods manufactured by it, in such quantities and kinds as might be ordered by the defendant, of substantially the same character as provided in the first contract, and the orders of the defendant were to have a preference over all other work. After making provisions with regard to patterns and other matters not material to the present question, it was stipulated that the prices to be paid by the defendant, except for the iron parts or castings, should not exceed the prices charged by any other responsible manufacturer for like goods, and prices were specified for the iron parts. It was agreed that if the plaintiff’s assignor fulfilled the covenants on its part the defendant should purchase of the plaintiff’s assignor “ during the period of this contract, and under its terms, goods or other articles to the amount of not less than $200,000,” specifying the time and manner of payment for the same, and that “ during the term of this contract the party of the first part [plaintiff’s assignor] shall not sell, either directly or indirectly, any of the goods or articles of the several kinds hereinbefore agreed to be made for and delivered to the party of the second part, within the following described territory: West of and including the following counties in Wisconsin: Ashland, Price, Taylor, Clark, Jackson, Monroe, Yernon, and Richland; and south of and including the following counties: Iowra, Dane, Jefferson, Waukesha, and Milwaukee; in Michigan, all the territory south of and including the following counties: Muskegon, Kent, Montcalm, Gratiot, Saginaw, Tuscola, and Huron; and all of the following named states and territories: Illinois, Indiana, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Arkansas, Missouri, Iowa, Minnesota, North Dakota, South Dakota, Nebraska, Kansas, Indian Territory, Texas, New Mexico, Colorado, Wyoming, Montana, Washington, Idaho, Oregon, Nevada, Utah, California, Arizona, and Mexico. Nor shall the party of the first part, during the term of this contract, sell any of said goods or articles to any person, firm, or corporation whom it knows or has good reason to believe intends to resell the same within said territory.” It was further agreed “that, during the term of this contract, the party of the second part [the defendant] shall not sell, either directly or indirectly, any of the goods or articles of the several kinds hereinbe-fore agreed to be made for and delivered to it (except as hereinafter expressly provided) within the following described territory: In Wisconsin, all the territory east of the following counties: Ashland, Price, Taylor, Clark, Jackson, Monroe, Yernon, and Richland, and north of the following counties: Iowa, Dane, Jefferson, Waukesha, and Milwaukee; in Michigan, all of the territory north of the following counties: Muskegon, Kent, Montcalm, Gra-tiot, Saginaw, Tuscola, and Huron; and all of the following states and territories: Maine, New Hampshire, Yer-mont, Massachusetts, Ehode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, West Virginia, Virginia, North Carolina, Tennessee, Kentucky, and Ohio. Nor shall the party of the second part, during the term of this contract, sell any of said goods or articles to any person, firm, or corporation whom it knows, or has good reason to believe, intends to resell the same within said last-described territory: provided, however, and it is expressly agreed, that the party of the second part or its agents may sell in any part of the United States the desk known as the ‘ Yale desk,’ school apparatus and settees, and bank, office, and store furniture, and that any sale of said Yale desk, or any school apparatus or settees, or any bank, office, or store furniture, in any state or territory by the party of the second part or any of its agents, shall not be deemed a violation of this contract or any of its provisions. . . . A sum equal to twenty-five per cent, of the amount of any sale made by either of the parties in violation • of the provisions of the contract, as liquidated damages and not as a penalty, shall be paid by the party making any such sale, to the other party, but the delivery by either of the parties within the territory of the other, under and in performance of any existing contract, shall not be construed as a violation of this contract.” It was further agreed that each of the parties should transfer to the other any agency or agencies it might then have, and the good will of any business it may have established within the territory of the other as thus defined; the plaintiff’s assignor was to pay to the defendant a commission of five per cent, on the amount received for any goods or articles which might be thereafter delivered by it to any person, firm, or corporation within the territory of the party of the second part, under any then existing contracts; and, further, that the first-named contract should not be in force thereafter, but that this contract or any of its provisions should not be construed “as waiving or releasing, or in any way impairing, any claim or right of action either party may have against the other under and by reason of said contract of February 8, 1889, or otherwise.”</p> <p>The first counterclaim is for damages for neglecting and refusing to manufacture $100,000 worth of goods ordered under the last-named contract, in the amount of $25,000, and for a claim for mistakes in filling orders, for not replacing castings that were imperfect and broken, and unreasonably delaying the shipment of goods ordered, the sum of $5,000; and in the sum of $3,000 for patterns not paid for or returned, furnished by the defendant under the second contract; twenty-five per cent, liquidated damages on damages sustained by the sale of nearly all the different kinds of manufactured goods specified in the contract in the defendant’s district during the years 1890,1891,1892, — • in the state of Illinois, on sales amounting to $40,000; in Indiana, $10,000; South Carolina, $5,000; Georgia, $10,000; Florida, $10,000; Alabama, $5,000; Mississippi, $5,000; Louisiana, $7,000; the state of Wisconsin, $10,000; Missouri, $15,000; Iowa, $10,000; Minnesota, $15,000; North Dakota, $5,000; South Dakota, $5,000; Nebraska, $10,000; Kansas, $15,000; Indian Territory, $1,000; Texas, $15,000; New Mexico, $4,000: Colorado, $10,000; Wyoming, $5,000; Montana, $8,000; Washington, $15,000; Idaho, $5,000; Oregon, $10,000; Nevada, $5,000; Utah, $7,000; California, $25,000; Arizona, $3,000; Mexico, $5,000; in territory in Wisconsin, in which it agreed not to sell, $20,000; in like forbidden districts in the state of Michigan, $50,000; in all, amounting to $365,000, upon which damages were claimed in the sum of $91,250.</p> <p>The second counterclaim was for the sum of $5,000, founded upon a provision of the second contract above, to the effect that the plaintiff’s assignor should pay to the defendant a commission of five per cent, on the amount the plaintiff’s assignor received for any goods or articles which it might thereafter deliver to any person, firm, or corporation within the defendant’s territory under any then existing contracts, and which, in effect, was a part consideration for the defendant’s stipulations; and it was alleged that the defendant had sold and delivered, for the plaintiff’s assignor, such goods, wares, etc., to the amount of $100,000, and that it was entitled by the terms of said contract to a commission of five per cent., amounting to $5,000.</p> <p>The plaintiff demurred separately to each of these counterclaims on the ground that it did not state facts sufficient to constitute a defense nor sufficient to constitute a counterclaim. The circuit court made an order ovei’ruling the demurrers, from which the plaintiff appealed.</p> <p>They argued, among other things, that all contracts restraining industrial or business freedom of a person or party are presumed to be void, and the onus lies upon those claiming to enforce them to prove their reasonableness. The facts relied upon to overcome such presumption must be alleged in the pleadings. Whether such presumption is overcome by the facts stated is a question of law. Greenhood, Pub. Pol., Rule 566, subd, 1, 2, pp. 720, 721; Kellogg v. Larlcin, 8 Pin. 128; Bowser v. Bliss, 43 Am. Dec. 93; Linn v. Bigsbee, 67 Ill. 81. If the covenantee can in no way be benefited by trade restrictions, they are void, no matter how ample a consideration may have been given for such covenants. Hubbard v. Miller, 27 Mich. 15; Chappel v. BrocJcway, 21 Wend. 157; Ilitehcoeh v. OoTcer, 6 Adol. & El. 438; Greenhood, Pub. Pol. 716. The counterclaim goes on the theory that restrictions of trade are. presumptively valid, and this erroneous theory is challenged by the general demurrer. The restrictions of the second contract were not reasonable; they tended to monopoly and were opposed to a sound public policy. Kellogg v. Larkin, 3 Pin. 123; Maxwell v. Reed, 7 Wis. 582; Ulrich v. Kail, 17 id. 424; Laubenheimer v. Marm, id. 542; Miller v. Larson, 19 id. 463; Stearns v. .Felker, 28 id. 594; Lemon v. Grosskopf, 22 id. 447; John v. Larson, 28 id. 604; Melohoir v. McCarty, 31 id. 252; Fair-bank v. Leary, 40 id. 637; Lem v. Frown,, 41 id. 172; Clarke v. Lincoln L. Co. 59 id. 655; Washburn v. Dosch, 68 id. 436; Wells v. MeGeoch, 71 id. 196; Berlin Mach. Works v. Perry, id. 495; Oregon S. N. Co. v. Kale, 1 Wash. Ter. 283; Alger v. Thacher, 19 Pick. 51; Taylor v. Blanoha/rd, 13 Allen, 370; Arnot v. Pittston <& E. C. Co. 68 N. Y. 558; Leona/i'd v. Poole, 114 id. 371; Denver & N. O. R. Co. v. A., T. & S. F. R. Co. 15 Ped. Rep. 650; Western W. W. Asso. v. Starkey, 84 Mick. 76; Wright v. Ryder, 36 Cal. 342; Callahan v. Don-nolly, 45 id. 152; Dean v. Emerson, 102 Mass. 480; Bishop v. Palmer, 146 id. 469; Stanton v. Allen, 5 Denio, 434; Craft v. McConoughy, 79 Ill. 346; Morris Run C. Co. v. Barclay C. Co. 68 Pa. St. 173; Hooker v. Vandewater, 4 Denio, 349; Gibbs v. Smith, 115 Mass.-592; Crawford v. Wick, 18 Ohio St. 190; Fisher v. Bush, 35 Hun, 641; Lange v. Work, 2 Ohio St. 520; Lawrence v. Kidder, 10 Barb. 641; Anderson v. Jett, 89 Ky. 375; Emery v. Ohio C. Co. 47 Ohio St. 320; Adore v. Bennett, 140 Ill. 69; Strait v. National II. Co. 18 N. Y. Supp. 224; Texas Standard Cotton Oil Co. v. Adoue, 83 Tex. 650; Cummings v. Foss, 40 Ill. App. 523; Oregon S. N. Co. v. Winsor, 20 Wall. 64.</p> <p>They contended, inter alia, that this contract has no element of restraint of trade about it for the following reasons: (1) Although the Mani-towoc company restricts itself as to certain lines of business under the contract, yet in those lines it is furnished employment by the Chicago company to the extent of at least $250,000; (2) The Manitowoc company is at liberty to manufacture any sorts of furniture except those enumerated in the contract; (3) If it be the fact that these goods are to be manufactured under patterns furnished by the Chicago company, this case is analogous to those of patents; (4) There is not a feature of the contract tending to raising of prices to the public, or to a monopoly. (5) The facts may show that $250,000 of furniture is not much less than the capacity of the Manitowoc company. A vendor may bind himself to manufacture and sell exclusively to one person. Van Marter v. Babcoelc, 23 Barb. 633; Donnell v. Bennett, L. R. 22 Oh. Div. 835; Sehwalm v. Holmes, 49 Cal. 665; Long v. Towl, 42 Mo. 545; Linger 8. M. Go. v. Union B. H. <& E. Go. 1 Holmes, 253; Barber Asphalt Bav. Go. v. Brand, 7 N. Y. Supp. 744; LAghtner v. Menzel, 35 Cal. 452; Central 8. R. Co. v. Cushman, 143 Mass. 353; Arnot v. Pitt-ston <& E. C. Go. 68 N. Y. 558; Santa Clara Valley M. <& L. Go. v. Hayes, 76 Cal. 387. So, also, a vendee may agree to buy exclusively from one person. Brown v. Rounsavell, 78 Ill. 589; Ebling v. Bauer, 17 Weekly Dig. 497; Wharton’s note, 11 Fed. Rep. 11; Live Stoelc Asso. v. Levy, 54 N. Y. Super. Ct. 32; 2 Chitty, Cont. (11th ed.), 986-7; Leake, Cont. 739; Tlwrnton v. Skerratt, 8 Taunt. 529; Holcombe v. Llewson, 2 Camp. 391; Jones v. Edney, 3 id. 285; Cooper v. Twibill, id. 286, note; Gatt v. Tourle, L. R. 4 Oh. App. 654; Morris v. Colman, 18 Yes. 437. An agreement to work as a servant or agent for another exclusively, for a certain number of years, is valid. Greenhood, Pub. Pol. 702; Hartley v. Cummings, 5 C. B. 247; Pilhington v. Seott, 15 Mees. & W. 657; Wallis v. Day, 2 id. 273; Morris v. Colman, 18 Yes. 437; Diedrichsen v. Gdbburn, 2 Ph. 51; Jackson v. Astley, 1 Cab. & El. 181; De Francisco v. Barnum, L. R. 43 Ch. Div. 174. In the following cases, contracts for exclusive dealing with a particular person were held valid, and the cases have an analogy to the present one,— some go much beyond what we need to contend for: Ward v. Hogan, 11 Abb. N. C. 478; Palmer v. Stebbins, 3 Pick. 188; Metropolitan T. Go. v. N. 7., L. E. dé W. B. Go. 45 Hun, 84; Tonawanda V. dé G. B. Go. v. N. 7., L. E. dé W. B. Co. 42 id. 496; Bichnnond v. Dubuque dé S. G. B. Go. 26 Iowa, 191; S. O. 33 id. 422; S. G. 40 id. 264; Bailroad Co. v. Bich-mond, 19 Wall. 584; National Bank dé L. Co. v. Todd, 17 Hun, 548; Dolph v. Troy Laundry M.Go. 28 Fed. Rep. 553; W. U. Tel. Go. v. A. & P. Tel. Go. 7 Biss. 367; W. U. Tel. Go. v. Chicago dé P. B. Go. 86 Ill. 246; Stull v. Westfall, 25 Hun, 1; Altman v. Boyal A. Soe. L. R. 3 Ch. Div. 228; George v. East Tenn. 0. Go. 15 Lea, 455; Kinsman v. Park-hurst, 18 How. 289; Clay v. Powell, 85 Ala. 538; Turner v. Johnson, 7 Dana, 435; Jones v. Lees, 1 Hurl. & N. 189; Wiggins Ferry Go. v. Chicago dé A. B. Co. 73 Mo. 389; Ciarla v. Grosby, 37 Yt. 188; Boiler v. Ott, 14 Kan. 609; Keith v. Herscliberg 0. Go. 48 Ark., 139; Greenkood, Pula. Pol. 683-4, 702. The principal cases in Illinois, in Wisconsin, and in the United States supreme court on contracts in restraint of trade, are as follows, none of them containing anything against the validity of this agreement: Cobbs v. Niblo, 6 Ill*. Ápp. 60; Stewart v. Ghal-lacombe, 11 id. 379; Talcoti v. Brackett, 5 id. 60; Linn v. . Sigsbee, 67 Ill. 75; Brown v. Bounsavell, 78 id. 589; Just v. Grave, 13 Ill. App. 302; Craft v. McGonoughy, 79 Ill. 346; Wasliburn v. Dosch, 68 Wis. 436; Berlin M. Works v. Perry, 71 id. 495; Laubenheimer v. Mann, 17 id. 542; Fairbank v. Leary, 40 id. 637; Fowle v. Park, 131 H. S. 88; Kinsman v. Parkhurst, 18 How. 289; Oregon 8. N. Co. v. Winsor, 20 Wall. 64. See, also, as to validity of agreements in restraint of trade, under the latest modern doctrine, Leslie v. Lorillard, 110N. Y. 519; Davies v. Davies, L. R. 36 Oh. Div. 359; Diamond Match Go. v. Boeber, 106 N. Y. 473.</p>

<p>APPEAL from the Circuit Court for Fond du Lae County.</p> <p>This is an action of ejectment to recover a narrow strip of land lying on the further side of a partition fence between plaintiff’s and defendant’s lands, which has been maintained in the same place for more than thirty years. The answer was a general denial, and sets up the defense of adverse possession for over twenty years.</p> <p>Plaintiff produced a deed from John Norton to him, purporting to convey to him “the north half of the southeast quarter of the northeast quarter of section 'number six (6) in township, number thirteen (13) north, of range number eighteen (18) east, beginning on the section line of sections five (5) and six (6), forty (40) rods north of the east quarter stake; running thence north forty (40) rods; thence west eighty (80) rods; thence south forty (40) rods; thence east eighty (80) rods; containing twenty (20) acres; ” showed that there was a strip of land between the partition fence (which had stood between him and the defendant’s land for more than thirty years) and the north line of his forty, comprising about one acre, of which the defendant was in possession; and rested. The defendant’s attorney moved a nonsuit on the ground that the plaintiff had failed to prove title to the strip in controversy. The motion was denied.</p> <p>On the whole case the court found in favor of the defendant, on the ground that he had established an adverse possession of the land for more than twenty years. The defendant proved no paper title. Erom a judgment in favor of the defendant, the plaintiff appeals.</p> <p>They argued, among other things, that to enable the defendant to avail himself of his alleged adverse possession of the strip of land in dispute, his deed, by its terms, must include the premises. Jaokson v. Woodruff,, 1 Cow. 286; Orary v. Goodman, 22 N. Y. 170; Stevens v. Brooks, 24 Wis. 326; Bowie v. Brahe, 3 Duer, 35; Jackson v. Ga/ry, 16 Johns. 301; Nieto v. Carpenter, 21 Cal. 455; McBea v. Williams, 7 Jones, Law (N. C.), 430.</p> <p>They contended, inter alia, that all that the law requires is a continuity of possession where it is actual; and this continuity and connection may be effected by any conveyance or understanding which has for its objects a transfer of the rights of the possessor or of his possession, when accompanied by an actual delivery of the possession. Ramsey v. Glenny, 45 Minn. 401; Vanee v. Wood, 22 Oreg. 77; St. Paul v. O., M. dh St. P. R. Co. 45 Minn. 387; 6 Wait’s Act. & Def. 455; Atwood v. Ccmmhe, 86 Mich. 99; Greene v. Anglemire, 77 id. 168; Riggs v. Riley, 113 Ind. 208. The doctrine of estoppel in pais may apply in the location of a division fence, not only to the parties themselves but to those claiming under them. Brown v. Caldwell, 10 Serg. & R. 114; Clark v. Tabor, 28 Yt. 222; Beecher v. Pálmele, 31 Am. Dec. 633; Blair v. Smith, 16 Mo. 273; Turner v. Baker, 64 id. 218.</p>

<p> Voluntary assignment: Removal of assignee on application of a majority of the creditors: Parties: Appealable order: Statutes construed: Constitutional law. </p> <p>1. Under seo. 1, ch. 548, Laws of 1887, providing that the circuit court shall remove an assignee upon the application of a majority of the creditors who shall also represent a majority in value of the debts allowed, the application may be made on behalf of such majority, if very numerous, by a committee appointed for that purpose and whose authority is put on record.</p> <p>3.An order sustaining a demurrer to the petition for removal in such a case is appealable.</p> <p>3. The minority of the creditors and the assignor need not be made parties to the proceeding.</p> <p>4. There being no provision in the statute for allowance of the debts or claims except when they are contested, the “ debts allowed ” are those allowed by the assignor or assignee, or proved.</p> <p>5. Sec. 1703, R. S., provides that the circuit judge may remove any as-signee in a voluntary assignment for cause shown. An amendment, by sec. 1, ch. 548, Laws of 1887, provides that he “shall also remove any such assignee upon the application of a majority of the creditors,” etc. Held, that the words “ any such assignee ” mean any, assignee in a voluntary assignment, and not merely one whose removal is asked for cause.</p> <p>6. No cause need be assigned for the removal of the assignee when the application therefor is made by the majority of the creditors. The language of the statute is mandatory.</p> <p>7. An assignee appointed after the enactment of the statute providing imperatively for his removal in such a case takes subject thereto* and the statute is not unconstitutional because providing for his removal without cause.</p>

<p>APPEAL from the Circuit Court for Brown County.</p> <p>Tife facts are sufficiently stated in the opinion.</p> <p>To the point that the action would lie, they cited Gates v. Boomer, 17 "Wis. 157; Hyde v. Ghapmcm, 33 id. 391,400; Mason v. Pierron, 63 id. 245; Marston v. Dresen, 76 id. 418; Basham v. Pfeff, 79 id. 161; Cornell v. Radway, 22 id. 264; Galloway v. Hamilton, 68 id. 653; Adsit v. Butler, 87 N. T. 585.</p>

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>By ch. 127, Laws of 1887, a part of the territory of the town of Ashland, in Ashland county, was detached from the town and organized as the city of Ashland. Until that time the town of Ashland had formed one school district, under the township system of school government, designated as the “ Board of School Directors of the Town of Ashland.” At the time of the organization of the city of Ashland the plaintiff owned school-houses and school-house sites within the city limits of the value of $24,500. Py the terms of the city charter the title to this property was vested in the city. Nothing has been paid by the city to the plaintiff on account of such school property. The plaintiff seeks in this action to recover its proportion of the value of such property.</p> <p>The action is based upon sec. 2, ch. 334, Laws of 1885. This statute, so far as it is applicable to this case, reads as follows: “ Sec. 2. When any territory shall be detached from any . . . school district in this state, and . . . any new school district shall be in whole or in part created from such territory so detached, the . . . school district . . . which shall be in whole or in part detached therefrom shall be liable to the . . . school district from which the territory was so detached, for its just share of the liabilities and indebtedness, and shall receive the just share of the credits from . . . the school district from which the same shall have been detached.” No provision of the charter of the city of Ashland requires the city to pay for school-houses or school-house sites, or for any real estate ing within the city limits, to any one.</p> <p>The appeal is from an order sustaining a general demurrer to the complaint.</p>

This action was commenced September 27, 1892, to restrain the defendant from throwing out any of its waste matter, consisting of whey, buttermilk, washings, slops, or other foul matter, anywhere about its premises, so as to run upon the plaintiff’s adjoining lands, and to abate the same as a nuisance, and for damages, with costs and disbursements. The complaint contains the usual allegations in such cases.

<p> Pleading: Verification: Judgment by default: Appeal. </p> <p>1. Where the verification of a complaint by an agent is defective because failing to state what knowledge he had of the facts, the answer need not be verified.</p> <p>3. A judgment as for default, when there was no default in fact, will be reversed on appeal, although no application for relief was made to the court below.</p>

<p>APPEAL from, the Circuit Court for Grané County.</p> <p>The plaintiffs sued to recover $75, the price of a “Little Giant Grubber ” they claimed to have sold to the defendant, and the answer was a general denial.</p> <p>At the trial before a jury, evidence was given on behalf of the plaintiffs of the delivery of the machine to defendant, April 11,1892, and tending to show that the defendant was to give it a fair trial and if it did not do good work he could return it; that in the following June defendant told one of the plaintiffs he was well satisfied with it. They wrote defendant, July 30, 1892: “We understand you said you would not take the machine any more, as you had got through with it, claiming that the rope was rusty, etc. If you do not care for the machine, you will at least settle for the use of the same, which you cannot well deny. If convenient to you, please come in when in town, and we will try and settle in some way satisfactory to both of us.” They had written to the firm of whom they got the machine, asking them if they would send a new cable in place of the one defendant had; that if sent they could get a settlement out of him that wTay, Evidence was given tending to show that the machine did good work, and that the defendant said he had taken it on trial.</p> <p>On the part of the defendant, evidence was given to the effect that the plaintiffs let him have the machine on trial until satisfied with it, and if not satisfied with it he might return it; that the cable proved rusty, defective, and unsatisfactory, and some of the strands were breaking, and some had broken; that he told one of the plaintiffs within two or three days that it seemed to work all right, but the cable was breaking and would give out, and that he would not want the machine with that cable; that he asked if he should bring it back, or if he would get a new rope; that if he would get a new rope he would keep it, otherwise not; that the plaintiff Keeler told him to keep it there, and he would write to the company and see what they would say; that about ten days thereafter Keeler then informed him that the company would not furnish a new rope, and he told Keeler he did not want the machine, and that he did not use it afterwards. One Palmer testified that he used the machine in moving a house, and it was left across the street by him from plaintiffs’ place of business about the 27th of May, and defendant told him not to take it back unless he had orders; but the defendant denied this, and there was a conflict of evidence whether he authorized Palmer to use it at all. The defendant’s son testified that Keeler told him, soon after the 4th of July, in a conversation about the machine and the failure to get a new cable, and when it had been left by Palmer at Bagiev, the plaintiffs’ place of business, to tell his father, if he would take the machine, he would throw off $5 from the price; and this was not controverted, though much of the plaintiffs’ testimony was disputed by the plaintiff Keeler.</p> <p>The court charged the jury, among other things, that the defendant was entitled to a reasonable time to try the machine, and if he did not wish to keep it he must return it within a reasonable time; that what was a reasonable time was a question for the jury in each case, depending, as it must, on various circumstances; that whether under all the circumstances, the defendant acted reasonably is more a question for the jury upon the facts than a question of law in any sense. “ Most assuredly, unless he had the right to keep that machine until the latter part of May because the plaintiffs told him. he might expect a new cable, the time would be too long. It would be an unreasonable length of time unless he had some excuse for keeping the machine up to that time by reason of assurances given to him that a certain defect would be remedied. It is for you to say, under all the circumstances of this case, whether there was an acceptance of the machine by the defendant, or whether he unreasonably delayed returning it or notifying the plaintiffs that he would return it.”</p> <p>After a verdict for the plaintiffs, the defendant moved for a new trial on the ground of the newly discovered evidence of one Wilson, and the material question in respect to it was whether the newly discovered evidence was merely cumulative. Wilson’s affidavit wras that: “ On or about the 6th of July, 1892, after the machine in question liad been returned from defendant’s farm to Bagley, he was in the plaintiffs’ store at that place, and asked Day, one of the plaintiffs, if he had a grubbing machine for sale. Said Day replied: ‘ Yes, we have a grubber for sale. It is one that Leroy Jacobs had, which he has returned. Do you want to buy a grubber?’ To this deponent replied: ‘Yes, .1 think of buying one.’ Thereupon said Day said to deponent : ‘ The machine is near the hotel; go and look at it.’ To this the deponent replied: ‘Won’t you go with me?’ Said Day replied to this deponent: ‘ No, I am alone in the store and can’t go now. Go down and look at it, and see what you think of it.’ That deponent went to the place indicated, and found said grubber, and the rope was badly rusted and in very bad condition.” The court denied the motion.</p> <p>The defendant appeals from a judgment on the verdict in favor of the plaintiffs.</p> <p>contended, inter alia, that the language of the court excepted to will stand the test of the rule laid down in Gammon v. Abrams, 53 Wis. 323; Paige v. McMillan, 41 id. 337; First Mat. Banli v. Larsen, 60 id. 217; Adams v. MeKay, 63 id. 404. The newly discovered evidence is simply cumulative. Ketalmm, v. Breed, 66 Wis. 98, 99; Gems v. Marmison, 44 id. 326, 327; Grace v. McArthur, 76 id. 651.</p>

The action was brought to establish an easement of right of way in the plaintiff over the defendant’s lands. The plaintiff claimed a right of way over the defendant’s lands by adverse user for more than twenty years. The defendant admitted the user, but denied that it was adverse. There is no conflict in the evidence on the question.

The facts are stated in the opinion. The appeal is from a judgment in favor of the defendant. argued, among other things, that an election cannot lawfully be held elsewhere than in the place designated, unless the necessity for a change is absolute, discarding all ideas of mere convenience. Law as to time and place is mandatory. 6 Am. & Eng. Ency. of Law, 823, 325; Melvin’s Case, 68 Pa. St. 333; Chadwick v. Melvin, Brightly’s Elect.

The infant plaintiffs are the children of one John F. Grace and of Annie R. Grace, who is their general guardian and guardian ad litem. On May 30, 1887, the said John F. Grace became a member of the defendant association and paid his dues and received a certificate of membership with his then wife, Annie R., as beneficiary, and in case of her death prior to his then payable to his heirs at law.

This is a proceeding under secs. 3933, 3934, R. S., to settle the accounts of a deceased executor. Mathias Kluck died testate, March 23, 1S85, possessed of real and personal estate.

Action upon an agreement by the defendants to pay the note of one Stinson, the plaintiff being the payee and owner of said note. The facts are stated in the opinion. The defendants appeal from a judgment in favor of the plaintiff.

The action was brought to set aside certain tax deeds, and for an accounting for the rents and profits of the premises, and for an application of the rents and profits to the redemption of the interests of the infant plaintiffs therein. At the time when the tax deeds issued, the plaintiffs all were, and two of them still are, infants. Their father, J. Wood Pulford, had an estate of curtesy in the premises. He had removed from the premises and from the state.

<p>Judgment by default: Vacating: Clerical error in summons: Res-act judicata: Affidavit of merits: Practice.</p> <p>1. In the copy of summons served on defendant the venue was laid in the wrong county. Attorneys for defendant served notice of retainer, demandeda copy of the complaint, and admitted-dueserv-ice thereof. On the next day they returned it with the indorsement “that any admission of service thereof was unauthorized and was made by mistake. We have never been retained in the action entitled in the complaint.” The case was tried and judgment by default rendered in open'court, one of defendant’s attorneys being present and saying nothing. Afterwards defendant moved to set aside the judgment on the ground that no summons in the action had been served on him. Held that, as defendant’s attorneys had knowledge of the clerical mistake and did not bring it to the attention of plaintiff’s attorneys, who were ignorant of it until the motion was made to set aside the judgment, and as the defendant and his attorneys had ample notice of the proceedings, the judgment should not be set aside.</p> <p>2. The denial of a motion absolutely, without leave of renewal, is res adjudicata, and if renewed on the same ground the motion should be again denied.</p> <p>3. A motion to set aside a judgment for a mere clerical error, of which defendant had notice, in the copy of summons served, is too late if made after the term at which the judgment was rendered.</p> <p>4. Under Circuit Court Bule XIII, requiring an affidavit of the advice of counsel to state that the party “ has fully and fairly stated the case to his counsel,” an affidavit of merits is insufficient if it states merely that the party has “ fully and fairly stated Ms case in said cause,” etc.</p> <p>5. It is not essential to a judgment by default that the summons and complaint be filed at or before the time the judgment is rendered.</p> <p>6. When the defendant has withdrawn his appearance he is not entitled to notice of the application for judgment.</p> <p>1. The findings of fact by the court maybe embodied in the judgment.</p> <p>8. An error in the taxation of costs, no motion to correct it having been made, is not a ground for setting aside-the whole judgment.</p>

The complaint alleges, in effect, that the plaintiff is a corporation, existing and duly organized under and by virtue of cb. 84, P. & L. Laws of 1864, entitled “ An act to incorporate the Blaolc River Improvement Company, ” that since such organization such charter has been amended by ch. 447, P. & L. Laws of 1866, ch. 225, Laws of 1880, and ch. 263, Laws of 1882; that during 1864 more than 200 shares of the capital stock of said corporation were duly subscribed for and…

Contempt proceedings. On March 25,1892, plaintiff obtained a judgment of divorce a vinculo against the defendant.

This action is for damages for tbe death of tbe plaintiff’s intestate, caused by alleged negligence of the defendant.

<p>APPEAL from the Circuit Court for La Crosse County.</p> <p>The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.</p>

On December 18, 1891, the firm of 0.. Ladwig & Co., consisting of plaintiff and another, being merchants at Embarrass, executed a chattel mortgage to one Evans to secure a note given to him by the firm for $227.50. On December 30, 1891, the goods covered by the mortgage were seized on several attachments against said firm, aggregating $692.75. Said attachments were traversed by said firm.

APPEALS from the Circuit Court for Wood County. These are several garnishee actions, consolidated and tried together. In 1891 the defendant M. R. Hansen ivas engaged in the business of manufacturing lumber at his mills in Hansen, in said Wood county. .March 9, 1891, said defendant entered into a contract in writing with the garnishee E. G. Boynton, by which he sold to said Boynton a certain, amount of pine lumber at the prices therein specified.

This was an action for the recovery of damages sustained by reason of alleged defects and insufficiencies of the highway of the defendant town which passes through the village of Amherst, being the main street in the village, and a part of the Stevens Point and Waupaca road, which runs from Amherst Junction to the said village, passing in front of the school-house, and thence across Waupaca river to the city of Waupaca.

The action is for false imprisonment and for malicious prosecution. The plaintiff owed a small debt for goods to a firm of which the defendant Heisler was a member. On October 25, 1892, Heisler made a complaint to a justice of the peace, whereby he intended and attempted to charge the plaintiff with the crime of having obtained such goods by means of false pretenses.

Action for the conversion of personal property by the defendants as sheriff and deputy sheriff of Waupaca county. The defendants appeal from an order denying a motion to set aside a judgment by default.

<p> Municipal corporations: Injury from defective sidewalk: Notice of injury: Place: Variance: Villages: What claims to be audited: Notice of defect: Evidence. </p> <p>1. The notice to a village of an injury from a defective sidewalk described the place of injury as about twenty-five feet north of a certain store, but the complaint in an action for such injury described the place as about ten feet north of the northwest corner of the store building. Held, not a fatal variance.</p> <p>2. A claim against a village for personal injuries is not an account or demand which, under sec. 893, R. S., must be presented for audit and allowance by the village board.</p> <p>3. A petition to a village board for the building of a sidewalk seven feet ■ wide in place of one four feet wide, was not admissible in evidence to show that the village authorities had notice of defects existing six months later in the old walk.</p> <p>4. In an action for personal injuries caused by a defective sidewalk, evidence of prior similar accidents on the walk, near the place in question, is not admissible.</p> <p>5. Where the municipal authorities knew that the whole or a particular section of a sidewalk was old, rotten, and unsafe, the fact that the particular plank which caused an accident was not known to be loose will not enable the municipality to escape liability on the ground that such defect was latent.</p> <p>6. For the purpose of showing constructive notice to a municipality of a defect in a sidewalk, other defects therein in the vicinity, or the general bad condition of the walk, may be shown, if the general condition of the portion as to which such evidence is admitted is substantially the same as that of the walk at the place in question.</p>

<p>Master and servant: Contract between relatives to pay for services: Evidence: Transactions with deceased person: Agreement to devise lands: Statute of frauds: Recovery quantum meruit: Limitation of actions: Demand: Interest: Appeal: Sufficiency of exceptions: Record.</p> <p>The relation of master and servant between relatives, or an express contract to compensate a relative for services rendered, may be established by circumstantial evidence.</p> <p>2. The evidence in this case — showing among other things that the deceased sent to Germany for the claimant, her nephew, and, though of full age, he came and lived with her and rendered services for her until her death, a period of nearly nine years; that he had never before lived with or worked for her; that she had never occupied towards him any quasi parental relation, and he had never received anything from her; that she had declared to others that for his services all her property was to go to him; and that ho expected to be compensated in that way for his services — is held to sustain a finding of the trial court that there was a contract between them that he should be so compensated.</p> <p>3. The claimant was competent to testify that; he had rendered the services with the expectation of being compensated therefor; and .to have such testimonjr excluded on the ground that it involved a personal transaction or communication with the deceased, it should be shown that his expectation was founded upon some such transaction or communication.</p> <p>4. The circuit court is charged with the duty of making up its own record, and its determination as to what transpired in court cannot be questioned on appeal for alleged want of conformity with the truth. So held, where the trial court denied a motion to strike out a part of an answer of a witness (which was not objected to at the time) on the ground that it was not spoken so as to be heard by counsel.</p> <p>A parol agreement to devise and bequeath real and personal property as compensation for a nephew’s services is within the statute of ' frauds (sec. 2304, R. S.) as to the real estate, and, being indivisible, fails wholly; but it may be shown in evidence to rebut the presumption that the services were rendered gratuitously, and the nephew majr recover quantum meruit.</p> <p>6. The cause of action does not accrue in such case until the death of the aunt, and demand is properly made by filing the claim for allowance against her estate.</p> <p>7. An error in allowing interest from too early a date is not available on appeal where there is only a general exception to the finding that the respondent is entitled to recover a certain sum, with interest thereon from said date, and costs.</p>

<p>Guardian and ivard: Liability for interest: Appeal by one party: Res adjudicata: Subsequent appeal by other party.</p> <p>1. A guardian who, on receiving his wards’ money, turned it over to their mother under the mistaken idea that it belonged to her, is chargeable with simple interest thereon after the expiration of a reasonable time from his receipt thereof.</p> <p>% The affirmance, on a guardian’s appeal, of a judgment charging him with the principal sum only of moneys which came to his hands, does not necessarily render the whole judgment res adjudicata, and it may afterwards he held, on an appeal by the wards, that he should be charged also with interest on such moneys.</p>

. The action is against Bichard Guenther^ a former state treasurer, and the sureties upon his official bond, to-recover moneys which he had, received, and had not paid over to his successor in office, as interest on state funds loaned by him to various banks.

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