Volume 88 — Wisconsin Reports

<p> Arson: Burning of dwelling house: Variance. </p> <p>The burning of a dwelling house, under sec. 4399 or sec. 4409, B. S., and the burning of a building, under sea 4403, are separate and distinct offenses, neither including the other; and upon an information charging the burning of a building there can be no conviction if it was a dwelling house that was burned.</p>

<p> Normal schools: Power of regents to remove teacher “at pleasure Contracts. </p> <p>1. The power to remove a teacher “ at pleasure,” given to the board of regents of normal schools by subd. 3, sec. 404, R. S., is a discretionary one, and its exercise in a given case cannot be inquired into by the courts.</p> <p>2. The statute giving such power of removal becomes a part of every contract made by the board with a teacher for his employment in a normal school; and the board can make no by-law or contract by which such power is bargained away, limited, or restricted.</p> <p>3. When by the exercise of such power the contract relation between a teacher and the board is terminated, and he has received notice thereof, his right to any further salary or compensation is also terminated.</p>

<p> Written contract: Evidence of prior oral agreement: Beal estate broker: Option to purchase: Commissions, </p> <p>1. A written option to purchase land does not necessarily supersede a prior oral contract of agency between the same parties for the sale of the same land on commission, whether the option be regarded as an independent contract or merely as a writing to be used by the agent to show his authority to make a sale; and in either case the contract of agency may be shown by parol.</p> <p>2. An agent to sell land, who was to receive as commission all that was realized on the sale exceeding $35,000, had also an option to purchase the land for $40,000. He produced a bona fide purchaser at $40,000, to whom the principal refused to convey, and he was obliged to take title to himself upder his option in order to complete the sale. Held, that he was entitled to recover 'his commission.</p>

<p> Vendor and purchaser of lands: Fraudulent representations: Rescission. </p> <p>Í. The purchaser of a farm in a part of the country with which he was unacquainted had a right to rely upon representations in a plat exhibited to him by agents of the vendor, purporting to show the location, quantity, and nature of the land, although he afterwards made a hasty inspection of the farm in company with such agents, and although they employed no artifice to prevent a full investigation, where such investigation was made at an unfavorable season and the falsity of the representations in the plat were not obviously discoverable.</p> <p>2. The agents having known, before the sale was consummated, the falsity of the representations in the plat and that the purchaser was relying thereon, and not having informed him of the facts, such representations were fraudulent, even if made in the first instance through inadvertence or mistake.</p>

<p>APPEAL from the Circuit Court for Dane County.</p> <p>The appellant entered judgment by confession in the circuit court for Dane county, on an ordinary judgment note, joint and several in form, against Arthur B. White, Susan G. White, and the respondent, Matthew Milem. Milem applied by motion to the court for an order opening the judgment as against him, and to be allowed to answer, founded on the affidavits of all of the defendants and a proposed answer, duly verified, denying the execution of the note described in the plaintiff’s complaint, but admitting that he did sign a note for the same amount with the defendant Arthur B. White, and as his surety; that the plaintiff knew that he signed it only as surety or accommodation maker with said White, and that the latter received the whole of the consideration thereof. It alleged an extension of the time of payment of said note for one year, for a good and sufficient consideration, by agreement between the defendant Arthur B. White and the plaintiff, but that he {Milem) had no notice thereof and never consented thereto. The answer further alleged that, after the note was signed by Milem and delivered to the plaintiff, it was materially altered and changed by the act or procurement of the plaintiff, without his consent thereto; that, without his knowledge or consent, the plaintiff procured the defendant Susan G-. White to sign the said note as a maker. The court allowed the proposed answer to the complaint, and directed the judgment to stand as security, and stayed proceedings until the determination of the issue, but no app'eal was taken from this order.</p> <p>The plaintiff, for an amended complaint and by way of reply to the answer served by the defendants, set -up, in substance, the execution and delivery of the note and warrant of attorney by the defendant Arthur B. White for a loan to him of $200, and by the defendant Milem to secure it, and that the money was lent upon the faith and credit of Milem. Upon the maturity of the note, White requested an extension of time for one year, offering the signature of his wife, Susan G-. White, to the note, if it should be granted,, and that the plaintiff informed him that he would grant-such extension provided Milem would consent thereto, and' not otherwise. Upon the representation of White that he-had seen Milem and knew he would consent to the extension, he had his wife, Susan G-., sign her name to said note, below the names of the original makers. The plaintiff refused to grant any extension until he had seen Milem. Milem, refused to consent to the extension. The plaintiff informed the signers, in the presence of Milem, that he would not consent to the extension;,and, White and Milem having neglected and refused to pay the note, judgment was entered thereon as before stated. It alleged the insolvency of White, and that the only security for said debt and judgment was that afforded by the signature of Milem, upon which, and not otherwise, plaintiff consented to make the loan, and alleged that he had in no way granted any extension of time for the payment of the note, and closed with a demand for judgment for the amount and costs, asking that said judgment as against Susan G. White be vacated.</p> <p>The case coming on for trial, the defendant Milem, as appears from the judgment, objected to the admission of any testimony under the amended complaint, and the court ordered judgment thereon against the plaintiff and for the defendant Milem for his costs, which was entered accordingly, and adjudging that the judgment theretofore entered be vacated and set aside as to him. The plaintiff appealed. ■</p> <p>They contended, inter alia, that' the signature of the note by Mrs. White, under the circumstances, made her merely a guarantor. It was a new and independent contract which in no way disturbed the relation of the original parties and did not constitute an alteration of the note. • McOaughey v. Smith, 27 N. Y. 39; Brownell v. Winnie, 29 id. 400; Mersman v. Werges, 112 U. S. 142; Stone v. White, 8 Grajr, 589; Tenney <o. Prince, 4 Pick. 385; Warner v. Price, 3 Wend. 397; Morris v. Warner, 13 id. 400; Dan. Reg. Inst. secs. 1311, 1313, 1389; U. S. v. Hodge, 6 Ilow. 279, 283; Frouskop v. Shontz, 51 Wis. 204; Gorden v. Robertson, 48 id. 493; Fulr ler v. Green, 64 id. 159.</p> <p>They argued, among other things, that the addition of another name after the execution of the note is a material alteration and discharges those who have already signed it. Randolph, Com. Paper, sec. 1744; Nicholson v. Combs, 90 Ind. 515; Singleton v. McQuerry, 85 Ey. 41; 2 Parsons, Notes & Bills, 559; Hamilton v. Hooper, 46 Iowa, 515; Diclcerman v. Miner, 43 id. 508; Sullivan v. Rudisill, 63 id. 158; Bernik of Limestone v. Peniclc, 5 Mon. 25; Hcmper v. Stroud, 41 Tex. 367; Bunt v. Silver, 5 Mo. App. 186; Mg Vean v. Scott, 46 Barb. 379; Ohappell v. Spencer, 23 id. 584; Owens v. Tague, 3 Ind. App. 245; 2 Brandt, Suretyship, sec. 388.</p>

<p> Attachment: Debt fraudulently contracted: Statements to commercial agencies: Appeal: Evidence: Transactions with person since deceased. </p> <p>1. An order discharging an attachment will not be reversed on appeal, except upon a clear preponderance of the evidence against the finding of the court below.</p> <p>2. In November, 1889, defendants made a statement to a commercial agency, showing assets about $250,000 in excess of liabilities, and naming plaintiff and others as references. In May, 1890, they orally stated the same thing to one V., who was collecting information for another agency. These statements greatly underestimated defendants’ liabilities, but the evidence tends to show that they .were made in good faith and that defendants did not know they were insolvent until they made an assignment in September, 1890. Plaintiff’s manager saw the former statement and also talked with V., who told him the substance of the oral statement and that he had learned from other sources that defendants were practically what they represented themselves to be. Plaintiff had had frequent transactions with defendants for several years, and had knowledge of their business methods and the character of their enterprises, which were widely extended and of a somewhat per-carious and uncertain nature. Between April 2 and September 1, 1890, plaintiff sold to defendant on credit merchandise to the amount of $30,000, the principal item being $21,000 worth of lumber which, it appears, plaintiff was anxious to sell to them and defendants were reluctant to purchase. During these transactions the defendants’ statements were not mentioned, but plaintiff’s manager testified that in extending the credit he relied on the written statement of November, 1889, corroborated by the statement to V. Upon the evidence, showing the above facts among others, it is held that there was no clear preponderance of proof that the debt was fraudulently contracted, so as to sustain an attachment.</p> <p>8. Under the circumstances, the statement of November, 1889, was too remote to justify the plaintiff in relying upon it absolutely; and the defendants were not responsible for what V. told plaintiff’s manager, he having no authority, express or implied, from them to make such statement.</p> <p>4. After the death of one of the defendants, the survivor’s son, who had no interest in the suit and from whom neither party derived any interest, was competent to give evidence of conversations with the deceased in his lifetime.</p>

<p> Street railway companies: Injury to person through negligence of car driver: Evidence: Special verdict: Instructions to jury: Damages. </p> <p>1. In an action for an injury which permanently deprived plaintiff of the use of an arm, evidence on his behalf that he had no education or trade was admissible upon the question of damages.</p> <p>2. Plaintiff’s claim being that the wheels of defendant’s street car in some way caught and crushed his elbow but did not run over his arm, it was not error to exclude expert testimony on behalf of the defendant as to what would have been the effect upon the arm if the car had run over it. If relevant, it was not the subject of expert testimony.</p> <p>3. It being claimed that the injury was caused by the negligence of the car driver, evidence, elicited on his cross-examination, that it was part of his duty to see that passengers put their fares in the box, and that sometimes in attending to that duty he had to turn around so as to face the car, was competent to show that his attention was liable to be diverted, even though it could not be shown with certainty what was the precise situation at the time of the accident.</p> <p>4. The question -whether the defendant was guilty of any negligence which was the proximate cause of the injury being submitted to the jury for a special verdict, a question requiring the jury to state in what that negligence consisted was properly refused as calling for mere evidential facts.</p> <p>5. A question as to whether the defendant in the exercise of ordinary care could have avoided the injury was also properly refused as being merely a repetition of the question first mentioned.</p> <p>6. Where the jury were instructed as to some of the elements or facts , to which attention should be given in forming their estimate of the value of the testimony of witnesses, a failure to call their attention to other elements or facts was not error, in the absence of any request for fuller or more specific instructions.</p> <p>7. So, also, a failure to instruct the jury not to include in the damages compensation for plaintiff’s loss of time, etc., during his minority, was not error, where no such instruction was requested.</p> <p>8. Damages for mental suffering caused by serious personal injury are not special damages, and need not be specially pleaded or proved.</p> <p>9. An award of ,$4,000 for a permanent, and almost or quite total, loss of the use of his left arm by a boy seventeen years old, is held not excessive.</p>

<p> Debtor and creditor: Fraudulent consignment: Attachment: Replevin by consignee: Court and jury: Evidence: Instructions: Verdict. </p> <p>1. Tlié question of fraudulent intent in a debtor’s conveyance of his property being made, by sec. 2323, B. S., a question of fact for the jury, tjjje judgment in such a case should not be reversed on the ground that the verdict is against the evidence, unless it is so clearly and palpably against the evidence that the refusal of the trial court to set it aside was an abuse of discretion.</p> <p>2. Evidence that the persons to whom a debtor had transferred his property with attempted secrecy had engaged in other fraudulent transactions with other persons, or that it was their common course of business to receive consignments in the same way from insolvent merchants, was not admissible to show their participation in the debtor’s intent to defraud his creditors.</p> <p>3. In replevin by the persons to whom the debtor transferred the goods, against the sheriff who had seized the goods on writs of attachment as the property of the debtor, and who justified on the ground that the transfer was fraudulent, it was error to instruct the jury that the sheriff was only a nominal party and that the real defendant was the attaching creditor, a resident of another state.</p> <p>4. An instruction in such case that the burden was upon the defendant to prove that the transfer was made with the design and intent upon the part of the debtor to hinder, delay, and defraud his creditors, and that plaintiffs participated in, as well as knew of, the fraud, and had aided and assisted the debtor in his design and attempt, was also erroneous.</p> <p>5. It being a material question for the jury whether the plaintiffs obtained the goods in the regular course of their business, it was error for the court to say to the jury in relation thereto: “ If plaintiffs have succeeded in proving these facts (about which I understand there is substantially no dispute),” etc.</p> <p>6. It was error, also, to instruct the jury that it was incumbent upon the defendant to prove to their satisfaction and convince them by a fair preponderance of the evidence that the transfer was made with intent to hinder, delay, or defraud creditors.</p> <p>7. An instruction that the party alleging fraud must prove it, that it is not to be presumed however suspicious the facts and circumstances may be, and that in cases of this nature facts must be shown in order to establish the defense, was erroneous as giving the jury to understand that positive evidence was necessary to prove fraud, in contradistinction from suspicious facts and circumstances.</p> <p>8. The plaintiffs having made advances to the debtor upon the goods consigned to them, it was error to instruct the jury that, to defeat a, recovery, it must be proved that the plaintiffs knew or had reason to know, at the time of making such advances, that the debtor did not intend to use such advances in the payment of his indebtedness or for the legitimate requirements of his business, or that he intended to use or dispose of such advances in such a waj as to hinder, delay, or defraud his creditors.</p> <p>9. The goods having been consigned to the plaintiffs to be sold on commission, and they having only a special property therein to the extent of the advances made, being about $7,600, a verdict that they were entitled to the possession of the property, of the value of $10,000, and six cents damages, was erroneous.</p>

<p>(1) Special verdict: Character of questions. (3, 3) Negligence: Livery-stable keeper: Letting vicious horse: Burden of proof: Instructions to jury.</p> <p>1. Questions submitted for a special verdict should be limited to the material issuable facts, as distinguished from mere evidence.</p> <p>2. In an action for personal injuries caused by negligence, it was error to charge the jury that, as there were but two versions of the facts respecting defendants’ negligence,— the burden of proof as to his version being on the plaintiff, and as to their version being on the defendants,— it was immaterial, or very nearly immaterial, how the burden of proof lay.</p> <p>3. In an action for personal injuries caused by a vicious horse hired from defendants, it was error to charge that unless defendants were clearly satisfied that the horse was safe without a kicking strap, or if there was reason to doubt its safety without Such strap, it was negligence to let it without one.</p>

<p> School lands: Setting aside for state park: Withholding from sale: Power of commissioners to withdraw lands once offered: Lands withdrawn, when subject to private sale: Retroactive statute. </p> <p>1. Lands belonging to the school fund cannot, under sec. 2, art. X, Const., be set apart by the legislature for a state park.</p> <p>2. The legislature cannot.withhold school lands from sale, since, by sec/ 8, art. X, Const., that power is confided to the discretion of the commissioner’s of public lands.</p> <p>8. Under sec. 8, art. X, Const., providing that the commissioners of ■ public lands “ shall have power to withhold from sale any portion” of the school lands “when they shall deem it expedient,” the commissioners have power to withdraw from sale school lands which have once been offered at public sale.</p> <p>4. Under ch. 222, Laws of 1885, public lands which have once been withdrawn from sale become again subject to private sale only after they have been re-offered at public sale.</p> <p>5. Ch. 222, Laws of 1885. applies to lands withdrawn from sale before its passage, as well as to those afterwards withdrawn, but does not for that reason have a retroactive effect, since it operates only upon conditions existing at the time of its passage or arising after-wards, and upon sales made after its passage.</p>

<p>APPEAL from the Circuit Court for Grant County.</p> <p>This was a proceeding in the county court of Grant county to vacate and set aside the settlement and final order of distribution of the estate of James Thomas, deceased, to his widow, Susan J. Thomas, on the ground that1 she was never his lawful wife and had fraudulently procured an assignment of said estate to her. The petitioners are the brothers and sisters of said James Thomas, deceased, and his sole heirs at law. The petition states substantially that James Thomas died July 18, 1883, intestate, without issue or parent, leaving an estate in Grant county worth over $30,000; that in September, 1883, Susan J. Thomas, his alleged widow, was, on her own petition, appointed ad-ministratrix of the estate, and that she duly qualified and settled such estate, and on the 7th of November, 1884, rendered her final account of her administration; and that on December 9, 1884, a final order was made by said county court, settling said estate and.assigning the whole thereof to said Susan J. The petition further states, substantially, that the said Susan J. was not the widow of said deceased, but falsely represented herself to be such widow in order to deceive the court and procure such final order; that in fact said Susan J. was in November, 1857, duly married to one Magee, in Ohio; that she came to Grant county in the year 1860, representing herself to be a single woman; that ■said Magee is still living, and that Susan J. was never divorced from him; and that said Susan J. died February 8, 1890. The petition also states that the petitioners had no knowledge of the marriage of Susan J. to Magee, and believed her to be a single woman when she married the deceased, and did not acquire such knowledge until after the death of said Susan J.; that said Susan J. died testate, bequeathing all her property to the defendants, and that her will has been duly prpven; that the defendant Joseph P. Thomas has duly qualified as executor thereof and is now acting as such. The relief prayed is that the settlement of the estate of James be vacated and annulled, and that the executor of Susan J. account for all her estate, and pay it into court; and that an administrator of the estate of James be appointed to take charge of and resettle said estate.</p> <p>The defendants answered the» petition by a general denial, except that they admitted Susan J.’s prior marriage to Magee, but alleged that she was duly divorced from him, before marrying James, by a decree of the court of common pleas of Lorain county, Ohio. As a separate defense the defendants also pleaded the proceedings and final order in the county court of Grant county in the matter of the settlement of the estate of James Thomas.</p> <p>Judgment was rendered against the petitioners in the county court of Grant county, from which they appealed to the circuit court of said county.</p> <p>The evidence in the circuit court showed substantially the following facts: That, for some years prior to 1865, James Thomas was an unmarried man, residing in Grant county, Wis., and that he continued to reside there until his death in July, 1883; that, in 1851, Susan J. Richmond, who afterwards married said James Thomas, was duly married to Lewis Magee in Cuyahoga county, Ohio, and that they lived together as husband and wife until some time in 1858, when they separated, and never thereafter lived together; that Susan J. continued to live in Ohio with her relatives until some time about the year 1860, when she name to Wisconsin, and lived for a time with one John White, her cousin, in Grant county, in the immediate neighborhood of the residence of James Thomas; that she was known when in Wisconsin by the name of Susan J. Richmond; that James Thomas commenced to keep company with her, and became engaged to marry her; that she returned to Ohio at some time prior to her marriage to James Thomas, and, while in Ohio, commenced an action for divorce against Lewis Magee, and procured a judgment of divorce by default at the October term, 1864, of the court of common pleas of Lorain county, Ohio; that she returned to Wisconsin June 7, 1865, and within two or three days thereafter was married to James Thomas, and lived with him as his wife in Grant county from that time until the death of said James Thomas; that said Lewis Magee was living at the time of the trial of this action, and had never obtained any judgment of divorce on his part; that James Thomas died July 18, 1883, without children or parents, leaving the petitioners, his brothers and sisters, as sole heirs at law, unless Susan J. was his heir by reason of being his lawful widow; that Susan J.instituted and prosecuted proceedings in the county court of Grant county, Wis., to settle the estate of said James, in which proceedings she represented that she was the lawful widow of said James, and that a final order was made in such proceedings, assigning to her the estate of said James, in December, 1884; that said Susan J., by her last will, devised the property received by her from James Thomas to the defendants, and that Joseph P. Thomas was appointed and duly qualified as executor of such will, and still is such.</p> <p>This proceeding was commenced by the filing of the petition in the county court of Grant county, January 10, 1891. The record of the divorce action and judgment in Ohio was offered and received in evidence; also certain sections of the statutes of Ohio, by which, it appears that an applicant for a divorce must be a resident of the state at least one year next preceding the filing of the petition for divorce. There was a sharp contest in the evidence as to the time when Susan J. returned from Wisconsin to Ohio prior to her marriage with James. The respondents’ testimony tended to show that she returned in 1882 or 1863, considerably more than a year before she made her application for' a divorce in Ohio. The appellants’ evidence, on the other hand, tended to show that she did not return to Ohio until 1864, a few months or weeks previous to the filing of her application for divorce. On this ground it was contended by áppellants that the Ohio divorce was-utterly invalid, and that Susan J. knew that fact.</p> <p>The circuit court made findings to the effect that the proceedings in the Ohio divorce suit were.in accordance with the statutes of the state of Ohio, and that the Ohio court having in that action determined that it had jurisdiction, and that said Susan Magee was a resident of the state of Ohio and had been such for one year next preceding the commencement of said action, “ this court will assume that such findings and determination of said court of common pleas of Lorain county, Ohio, was correct, and this court will not undertake to determine as an original question, upon the proofs adduced in this court, whether said Susan was or was not in fact a resident of the state of Ohio at the time of the commencement of such divorce suit and for one year next prior thereto.” The circuit court also found that Susan was the lawful widow of said James, and as such was his sole heir at law and entitled to his entire estate; and thereupon affirmed the judgment of the county court. From this judgment the petitioners have appealed.</p> <p>To the point that parties are not required to act oh mere rumor, they cited O'Dell v. Burnham, Cl Wis. 570; Parker v. Kane, 4 id. 16; Lar-mont v. Stimson, 5 id. 447; Buttrick v. Holden, 13 Met. 357.</p>

<p>(1)Railroads: Ejection of would-be passenger from freight train. (2) Evidence: Physicians and surgeons: Statements of patient. (3) Punitory damages: Error, when cured.</p> <p>•1. The conductor of a freight train prohibited from carrying passengers was acting within the scope of his authority in compelling a would-be passenger to leave the train, and the railway company is liable for injuries to the latter caused by his ejection while the train was in motion so that it was dangerous for him to get off.</p> <p>2. In an action for personal injuries, a physician who had before been treating the plaintiff, and who was consulted by him on the day after the accident for the purpose of obtaining treatment, may testify to symptoms then existing, although he cannot distinguish between what he himself observed and what the plaintiff told him, and it appears that the plaintiff already contemplated suit.</p> <p>3. An error in allowing the jury to find punitory damages is cured where the compensatory and punitory damages are assessed separately and the latter are afterwards disallowed by the court.</p>

<p>APPEAL from the Circuit Court for Dane County.</p> <p>This is an appeal by an assignee for the benefit of creditors from an order of the circuit court directing the as-signee to permit the assignors severally to select, from the copartnership property, tools, implements, stock in trade, to the amount and value not exceeding $200, as and for their exemptions, under subd. 8, sec. 2982, R. S. The assignors were copartners. They made an assignment for the benefit of their creditors on December 29, 1892, both as a copartnership and as individuals. The assignment contained an exception, from the property assigned, of such as might be exempt by law from seizure on execution or attachment. The property was all delivered to the assignee. No schedule of property claimed to be excepted was made at the time. On January 18, 1893, an inventory of the property assigned, and a list of their creditors, were filed. In the inventory no- mention is made of property excepted from the operation of the assignment, or of exemptions. Afterwards, on January 24, 1893, the assignors severally made demand upon the assignee for certain of the copart-nership property, designated as and for their exemptions. Their demands included cash, accounts due to the partnership, and some stock in trade. The assignee refused their demand. Then, on January 31, 1893, on their application, the circuit court made an order directing the assignee to permit the assignors each to select, as his exempt property, not to exceed the value of $200, from the assigned property, of the implements, tools, and stock in trade, and not limited to their former selections. From that order the assignee appeals.</p> <p>They contended, inter alia, that where the statute prescribes no particular method to be pursued by the assignor in order to retain his exemptions, it is usually held sufficient, if he reserve them generally in the conveyance, to entitle him to have them set out upon application made within a reasonable time after the assignment is executed. Peterman?s Appeal, 76 Pa. St. 116; Hildebrand v. Bowman, 100 id. 580; Heclcman v. Messenger, 49 id. 465; Brooks v. Hichols,Yl Mich. 38; Rosenthal v. Scott, il id. 632; Richardson v. Marqúese, 59 Miss. 81, 92-95; Rainwater v. Stevens, 15 Mo. App. 544; Bradley v. Bisohel, 81 Iowa, 81; Have v. Britton, 61 Tex. 572; Blanchard v. Paschal, 68 Ga. 32; Frank v. Myers, 97 Ala. 437; Clark Shoe Go. v. Edwat'ds, 57 Ark. 331; Close v. Sinclair, 38 Ohio St. 530.</p>

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

<p>APPEAL from the Circuit Court for Dane County.</p> <p>Ejectment. The facts are stated in the opinion.</p> <p>to the point that a power of attorney to convey lands must possess the same requisites and observe the same solemnities as are necessary in a deed directly conveying the lands, cited Gee v. Bolton, 17 Wis. 604, 612; Ola/rk v. Graham, 6 Wheat. 577, 579; l/uvibard v. Aldrich, 8 N. H. 31; Gage v. Gage, 30 id. 420; lord v. Sherman, 2 Cal. 498; 1 Parsons, Oont. (7th ed.), *110, note c.</p>

<p>Estates of Decedents: Wills. (1-3) Extra allowance to executor: Itemizing claim: Amount: Evidence. (4) Election by widow not to take under will: Share of “netpersonal estate.'” (5) Disposition of property devised to her: Res adjudicata. (6) Limitation of time for settlement: Removal of executor. (7) Attorneys' fees.</p> <p>1. Property of a testator was found in four states and was looked after with diligence by the executor, who also investigated a claim that there was property in another state to which the will made no reference. The will was complicated in its provisions and difficult in execution, and suits for its construction were persistently fought in three states. Nearly all the steps taken by the executor were criti-cised and questioned, and the estate was in constant, litigation during the entire term of his service. Held, that the case was one of “ unusual difficulty,” and extra compensation was properly allowed the executor under sec. 3929, R. S.</p> <p>2. Though neither the statute nor the rule (County Court Rules of 1879, XVII, sec. 6) requires it, it is better practice to itemize the executor’s claim for extra compensation; but a claim allowed by the county court should not be rejected on appeal merely because it was not itemized, where there was no motion that it be itemized or a bill of particulars furnished, and it was in fact itemized on the trial.</p> <p>3. Under sec. 3929, R. S., providing for allowance, as extra compensation in certain cases, of such sums “ as the county court shall judge reasonable,” that court may, in its discretion, allow a sum smaller than that fixed by the uncontradicted evidence as to the value of the services.</p> <p>4. The “net personal estate” of a testator, not less than one third of which is, under sec. 2172, R. S., to go to the widow if she elects not to take under the will, is the personal estate left after payment of the debts, allowances, and charges and all expenses of administration, including those made necessary by the will.</p> <p>5. The disposition to be made of property given by a will to the testator’s widow, who elected to take'the provision made for her by law, having been involved and expressly determined in a prior proceeding, and the entire judgment therein having been affirmed on appeal, that matter is res adjudícala, although that part of the judgment was not questioned on said appeal.</p> <p>6. Where it had been impossible for the executor, though using all reasonable diligence, to complete the administration within the six years allowed by sec. 3850, R. S., it was proper to refuse to remove him and appoint an administrator de bonis non.</p> <p>7. An infant, who had no property except his prospective interest in the estate, being a necessary party to litigation involving the estate, no part of which was commenced by him or on his behalf, the expenses incurred by his guardian ad litem, for attorneys’ fees and disbursements in such litigation were rightly allowed as part of the expenses of administration; but the expenses incurred by the testator’s widow in such litigation, much of which she herself commenced, were properly disallowed.</p>

<p> Municipal corporations: Officers: City attorney of Milwaulc.ee: Election: Extension of term by legislature: Constitutional law. </p> <p>1. The territorial charter of the city of Milwaukee having provided for a city attorney to be appointed by the common council, that office existed prior to the state constitution, and is governed by sec. 9, art XIII, thereof, which provides that all city officers whose election or appointment is not provided for in the constitution shall be elected by the electors or appointed by such authorities as the legislature shall designate.</p> <p>9. In an act (ch. 35, Laws of 1889) changing the term of office of the city attorney of Milwaukee from two to four years, a provision that the term of office of the then incumbent be extended two years is, in effect, an appointment to the office, and is invalid under sec. 9, art. XIII, Const.</p> <p>3. Such act operates to extend the term of the city attorney elected at the regular election next ensuing its enactment.</p> <p>4. No repeal or change of the former law fixing the time for the next regular election for city attorney could be implied from the void provision of the act.</p>

<p>ERROR to tbe Circuit Court for Ashlcmd County.</p> <p>On or about September 20, 1889, the Iron Exchange Bank of Hurley held, as a special deposit, about $40,000, which was on that day stolen therefrom. Upon complaint made to the judge of the municipal court of Ashland, November 26, 1889, to the effect that the plaintiff in error, E. W. Bnicer, had committed said offense, a warrant was issued and said Baker was arrested. Upon an examination had before said judge, he was, on December 4, 1889, held for trial in said municipal court. On February 10, 1890, an information was filed against the said E. W. Baker and one Phelps Perrin, the second count of which was in the words and figures following, to wit:</p> <p>“ Second count: And I, George P. Rossman, district attorney as aforesaid, do hereby further inform the court that on the 20th day of September, A. D. 1889, at the town of Yaughn, in said Ashland county, Phelps Perrin and E. W. Baker did feloniously steal, take, and carry away thirty-nine thousand one hundred and sixty dollars ($39,160), lawful money of the value of thirty-nine thousand one hundred and sixty dollars ($39,160), the money of the Ashland Iron Mining Company, a corporation organized and existing under and by virtue of the laws bf Michigan, then and there being found, against the peace and dignity of the state of "Wisconsin.</p> <p>“ Gboege P. RossmaN, District Attorney.</p> <p>“Dated Feb. 10, A. D. 1890.”</p> <p>Said Baker thereupon put in a plea in abatement, which was overruled by the said municipal court, and thereupon the said Baker pleaded not guilty, and thereupon and in February, 1890, the said Baker filed an application for a change of the venue upon an affidavit of prejudice of the judge, and thereupon an order was entered changing the place of trial of said action to the circuit court for Ashland county. Subsequently the said Baker was separately tried in the circuit court for Ashland county, and at the close of such'trial, June 25, 1890, the jury returned a verdict to the effect that the said Baker was guilty of the offense as charged in the said second count of the information made and filed therein. Judgment being entered thereon and the said Baker sent to the state prison, the case was brought to this court on writ of error, and November 17, 1891, the same was reversed and the cause remanded for a new trial. 80 "Wis. 416.</p> <p>Pursuant to the mandate of this court, and on or about February 1, 1892, the said circuit court ordered said Baker from the state prison to Ashland county for trial at the February term of said court for 1892. Thereupon the said Baker put in a new plea in abatement on seven different grounds mentioned, the sixth of which was to the effect that, at the time of his arrest, he was a resident of Ironwood, Mich., and was brought to Wisconsin without extradition papers and without due process of law, but forcibly and under duress. The state demurred to all of said pleas ■except the sixth, and traversed that. The court sustained such demurrer, and, the defendant having failed to prove that he was thus brought forcibly from Michigan, that portion of the plea was overruled. Baker thereupon filed a petition to remove said cause to the circuit court of the United States for the western district of Wisconsin, and the state answered said petition for removal, and the court denied such application. Balter then asked to amend his original plea in abatement, but the same was denied by the court.</p> <p>On March 3, 1892, the said second count of said information was amended by the district attorney so as to read, after the entitling of the same, as follows, to wit:</p> <p>“ I, Richard Sleight, district attorney of Ashland county, hereby inform.the court that on the 20th day of September, A. D. 1889, at the town of Yaughn in said county, Phelps Hill, alias Phelps Perrin, and Edward W. Balter did forty thousand six hundred and eighty dollars ($40,680), lawful money of the United States, of the value of forty thousand .six hundred and eighty dollars ($40,680), twenty-six thousand seven hundred dollars ($26,700) of which said money was the money and property of the Ashland Iron Mining Company, a corporation organized and existing under and by virtue of the laws of Michigan, and thirteen thousand nine hundred and eighty dollars ($13,980) of which said money was the money and property of the G-ermania Iron Mining Company, a corporation organized and existing under and by virtue of the laws of Wisconsin, all of which said money was then and there found, feloniously steal, take, and carry away, against the peace and dignity of the state ■.of Wisconsin. Richaed Sleight, District Attorney.</p> <p>“ Dated March 3, A. D. 1892.”</p> <p>Thereupon the trial of the said cause upon the merits proceeded, and at the close thereof, March 10,1892, the jury returned a verdict which, omitting the title of the cause, is as follows, to wit: “We, the jury impaneled and sworn to try the issues in the above-entitled action, do find the above-named defendant, Eclward W. Balter, jointly im-pleaded against with Phelps Hill, alias Phelps Perrin, guilty of the offense as charged in the amended information herein.” On March 11, 1892, the defendant moved the court to set aside said verdict and grant a new trial, but the same was denied. Thereupon the court entered judgment against said Balter in the words and figures (omitting the title) following, to wit: “ Sentence by the court: It is hereby adjudged that you, Edward W. Balter, be sentenced to be confined at hard labor in the state prison at Waupun by the warden thereof for the period of five years, the first day of your imprisonment therein and the 20th day of September of each year thereafter during jmur term of sentence to be solitary confinement. The term of your sentence shall begin at noon to-day. Let the sheriff of Ashland county put this sentence into execution. [Signature, etc.]</p> <p>“ Dated this 11th day of March, A. D. 1892.”</p> <p>To reverse that judgment the said Balter has sued out this writ of error.</p> <p>contended, inter alia, that the court erred in permitting the juror Went-worth to sit as a juror. Trial of Aaron Bxvrr, 4 Causes Celebres, 415, 464; Coughlin v. People, 144 Ill. 140; Reynolds v. IT. S. 98 U. S. 145; Sehoeffler v. State, 8 Wis. 823; Stephens v. People, 38 Mich. 743; People v. Barlter, 60'id. 277; Washington v. Comm. 13 Ya. L. J. 861; Thurman, v:. State, 27 Neb. 628; Miller v. State, 29 id. 437; Marion- v:. State, 20 id. 233; Fonts v. State, 7 Ohio St. 472; Erwin-v. State, 29 id. 186; Frazier v. State, 23 id. 551; McHugh- v.. State, 38 id. 155; Freeman v. People, 47 Am. Dec.. 216-;; Smith v. Eames, 36 id. 515; People v. Mather, 21 id. 122; Rothschild v. State, Y Tex. App. 519; People v. Bodine, 1 Denio, 304; State v. BrooJes, 92 Mo. 542; People v. Mc-Quade, 110 N. T. 284. The amendments allowed to the information inserted a new offense, and made it state two distinct offenses in one count. In re Allison, 13 Colo. 525; Ben v. State, 58 Am. Dec. 234. The court should not have proceeded with the amended information without requiring a new plea. People v. Corbett, 28 Cal. 329; People v. Gaines, 52 id. 4Y9; People v. Lightner, 49 id. 226; People v. Bowman, 81 id. 566, 569; State v. Saunders, 53 Mo. 234; State v. Montgomery, 63 id. 296; Douglass v. State, 3 Wis. 820.</p> <p>To the point that the objections to the juror Wentworth were properly overruled, they cited Schoeffler v. State, 3 Wis. 823; Staap v. Comm. Y4 Pa. St. 458; State v. Collins, YO N. C. 241; Epes v. Comm. 5 Grat. 6Y6; little v. Comm. 25 id. 921; Comm. v. Webster, 5 Cush. 295; Sanchez v. People, 4 Parker, Crim. Rep. 535; Monroe v. State, 23 Tex. 210; People v. King, 2Y Cal. 50Y; State v. Lawrence, 38 Iowa, 51; State v. Potter, 18 Conn. 166.</p>

<p>RepoRted from the Circuit Court for Sheboygan County.</p> <p>The facts are stated in the opinion.</p>

The plaintiffs in error were convicted in the circuit court for Dodge county upon a complaint charging them with assault and battery upon one F. M. Lamb, alleged to have been committed upon the 1st day of September, 1893. On the morning of that day, said Lamb was shooting ducks upon the Horicon marsh, and, at some time between the hours of 4 and 5 o’clock in the morning, shot and killed a duck.

<p>ERROR to the Circuit Court for Marathon County.</p> <p>The plaintiff in error was tried upon an information charging him with murder in the first degree, by killing and murdering "William Herzog with a premeditated design to effect his death, and was found guilty of murder in the third degree, and sentenced to ten years imprisonment in, the state prison. He sued out a writ of error, and, after return to this court, it ivas assigned as error that there was nothing in the record to show that the plaintiff in error was personally present in court during the various stages of the trial and conviction. When the writ was sued out and return made, the record showed only that the accused was present when the information was read to him, and at no other time. At a subsequent term of the court, upon notice to the plaintiff in error and his attorneys and by order of the circuit court, the plaintiff in error was brought from the state prison, where he was serving his sentence, to the court room; and on the evidence of the clerk and sheriff, and on motion of the district attorney, after argument on his behalf by his counsel, he being present, the record was amended ny,no pro timo so as to show the presence of the plaintiff in error at each and every stage of the trial, conviction, and sentence. The amendment was made solely upon the testimony of the sheriff and clerk as to their recollection of the fact of his presence in court, and without memoranda, minute, or other record from which either of them could refresh his memory. He was then remanded to the state prison, and the action of the circuit court in the premises was duly certified to this court as a part of the record in the cause. The information was filed against Albert Hoffman and Ferdinand Heise, as well as the plaintiff in error, but the two former were discharged at the close of .the evidence.</p> <p>The principal question arising upon the bill of exceptions is whether, upon the facts disclosed iu evidence, the plaintiff in error was properly convicted of murder in the third degree. It was contended on the part of the state that, at the time the killing occurred, the plaintiff in error had raised a chair over one Risto’s head and made an assault upon him for the purpose of doing him great bodily harm, within the meaning of sec. 4377, R. S.; and that, -while engaged in the commission of this felony, he killed the said William Herzog, who had interfered to prevent the plaintiff in error from carrying out his design to inflict great bodily harm on Risto, but "without any design to effect his death; and that therefore he was guilty of murder in the third degree, under sec. 4345, R. S.; and that Hoffmaris felonious design and attempt against Risto furnished the implied malice necessary to make the killing of Herzog murder in the third degree.</p> <p>The killing occurred at a masked ball at a tavern and saloon in Rib Falls, Marathon county. Among the participants in the dance were the defendant and two of his brothers and his sister, and Robert Risto and two of his brothers. The defendant and Herzog were strangers, and first met on that occasion. Some of the parties became very much intoxicated and violent. The defendant and also his brother Albert got into an altercation with Robert Risto in the hall where the dance was proceeding, and the defendant and Risto had each exhibited a knife to the other, by way of caution or threat. Robert Risto and others started down the stairs, and the defendant and his brother followed. As Robert Risto went out of the hall door, he struck Albert Hoffman in the face, and there was a rush down the stairway, and the defendant and his brother Albert caught up with Risto in the hall below, where the stairway landed, and at the door of the saloon there was a struggle, in which the defendant, Albert Hoffman, Robert Risto, and his brother Gust. Risto were engaged. This was suppressed by the wife of the proprietor and others.</p> <p>The saloon was about 23x27 feet, with an outside door near the middle of the front, and a door in the back of the saloon opened into the liquor room. Going from the saloon there was a hallway about ten feet long, on the left of which is a sitting room, and on the right an alcove, in which there was a wash room, a sink, etc. ■ At the end of the hall is a door opening into the dining room, and going through this door there is another to the left, opening into the stair-way to a landing, where there is a door opening into the dance hall. In the straggle that ensued when the parties came downstairs into the saloon, it appeared that Eobert Eisto had snatched a metal faucet out of a beer keg and hurled it at the Hoffmans, striking Albert Hoffman on the hand and inflicting some injury. About eight or ten minutes after this difficulty had been suppressed, during which Eobert Eisto went outdoors and came in again at the dining room and so into the saloon, words passed and angry demonstrations occurred between him and Albert Hoffman in respect to the injury the latter received on his hand, when another encounter took place, which, though stated somewhat differently by those who saw it, yet with respect to the point material to the case, there does not appear to be any controversy or conflict of testimony. Albert Hoffman and Eobert Eisto were standing up and making motions to fight with their fists. A Mr. Wolfé testifies: “Then I saw August Hoffman take up a chair to strike Eisto. Then Herzog, the deceased, took hold of the chair, and August, the defendant, let go of it and was going to strike Herzog. He let it go and made motions to strike him. When Herzog took hold of the chair I think he set it down. I think the defendant let go of it. When the defendant took the chair he was about to face Eisto, and was about five feet off, and Albert Hoffman made motions to strike Eisto. The defendant’s back was turned to Her-zog, and when the latter seized the chair the defendant turned around and put himself in a parrying position. Herzog let go of the chair and struck at him. I saw him strike the defendant in the face, and saw him fall backward. Herzog stepped up towards the defendaiit, made a step forward, and knocked him down. The defendant could have struck Herzog if he had wanted to when he first let go of the chair. He had the chair about half-way up when Her-7,0g took hold of it, and it was still moving.” The witness Franke, who gave a pretty clear account of the encounter, testified: “ I saw Albert Hoffman quarreling with Eobert Eisto, making motions to hit him. Eisto was doing nothing. Then I saw-the defendant take up a chair to knock Eisto down, and Herzog was standing behind him, and took the chair away from him,— took it by the legs. Defendant let the chair go, and turned around to Herzog, and made motions to hit him. Herzog dropped the chair, and I saw him strike the defendant in the face. He fell down backward, clear to the floor. He jumped up again to his place, and I looked around and saw Herzog fall down near the counter. When the defendant jumped up he jumped to the place where I saw Herzog fall. Then the. people rushed' together and I couldn’t see. Next, saw Heise take a chair and strike Herzog, and then saw Herzog going around the saloon with his hands over his head. We took him over to the barber’s chair. - When I went into the saloon Albert Hoffman and Eisto were quarreling. That was the only thing that looked like a fight. When Herzog took hold of the chair he held it in his hand and said: ‘Two against one is too many.’ The defendant turned around and made motions to hit Herzog, and he dropped the chair, and I saw that he struck the defendant first.” Other testimony showed that when the defendant turned around quickly towards Herzog he said sharply, “ WhatV ” and then had no weapon in his hand, so far as the evidence shows; that he said something, or tried to, as the chair was taken from him. It is claimed, and the testimony tends to show, that when the defendant got up after having been knocked down by Herzog he drew his knife, and in the struggle that ensued- they both were thrown or fell to the floor, Herzog on top of the defendant; and in the struggle the fatal thrust or cut with the defendant’s knife was given, which resulted in Herzog’s death. There is no evidence showing, or tending to show, that after the chair was taken from the defendant he made any further demonstration against Eisto, or that any one did. Eisto testified substantially that he went out of the saloon and did not return until after the affray was over. The evidence shows that the assault on Eisto by the defendant had ceased before Herzog knocked, the defendant, Hoffman, down, and clearly so before the latter used any violence upon or against Herzog. There is no testimony in the record to show that any assault was being made or violence directed to or against Eisto at the time Herzog knocked the defendant, Iloffmmi, down. The evidence further shows that after Herzog and the defendant fell to the floor, as above stated, they both got up again, and the defendant struck Herzog a blow with a knife or other sharp instrument on the .head when he was standing by the counter; that the fatal wound was in the leftside of the chest, inflicted with a knife, penetrating -the chest to ■ the left of the medial line between the second and third ribs, three-quarters of an inch in length. There was a contused wound back of the upper part of the right ear, and an incised wound in the scalp on the left of the medial line down to the skull. The wound that caused death was the knife wound in the chest.</p> <p>On the subject of murder in the third degree, the circuit' court charged the jury as follows: “ Section 4345 reads as follows: ‘ The killing of a human being, without any design to effect death, by a person engaged in the commission of any felony, shall be murder in the third degree.’ You will observe that the prominent features of this statute are that the killing must be done without a design to effect death, and must be done by a person while engaged in the commission of a felony. The word ‘ felony,’ as used in the statute, means an offense or crime punishable by imprisonment in the state prison. It is claimed on the part of the state that, just prior to the affray with Herzog, the witness Albert Hoffman was engaged in a quarrel with one Robert Risto, and that the defendant, August Hoffman, advanced upon Risto with a chair, and turned to strike him; that Herzog at that time interfered and prevented August using the chair on Risto, and then the fatal affray ensued. It is claimed by the state that the defendant was engaged in making an assault upon Robert Risto with intent to do him great bodily harm. If such was the case he was engaged in the commission of a felony, because an assault with intent to do great bodily harm is punishable by imprisonment in the state prison. So, if you find from all the evidence, beyond a reasonable doubt, that the defendant killed William Her-zog without a design to effect his death, while he, the defendant, was engaged in committing an assault with intent to do great bodily harm upon Robert Risto, and such killing is not justifiable, then you should find the defendant; guilty of murder in the third degree; that the defendant claims, without any provocation on his part, the deceased struck him a violent blow in the face, knocking him down; and that thereupon he struck him a blow with his knife.”</p> <p>They contended, inter alia, that there was no authority whatever for the amendment showing that the defendant was personally present in court during the several stages of the trial; that, if permissible under any circumstances, it can only be made when there is some record evidence by which to amend, showing that the amendment is in accordance with the facts. Makepeace v. Lukens, 27 Ind. 435; 3 Bl. 'Oomm. 407; 1 Tidd, Pr. 712; Queen v. Tutchin, 1 Salk. 51; Boyd v. .Blaisdell, 15 Ind. 74; Schoonover v. Heed, 65 id. 313; Stafford v. Janesville, 15 Wis. 474, 477; Albers v. Whitney, 1 Story, 312; Kentzler v. G., M. c& St. P. P. Go. 47 Wis. 641, 646; State ex rel. Graves v. Primm, 61 Mo. 167; State v. Jeffors, 61 id. 376; Branger v. GhevaUer, 9 Cal. 351; Swain v. Kaglee, 19 id. 127; Breyfuss v. Tompkins, 67 id. 339; Freve v. Danforth, 126 Ill. 242; Gébbie v. Mooney, Í21 id. 255; Dougherty v. People, 118 id. 160.; Gillett v. Booth, 95 id. 183; Dunham <0. South Park GomrPrs, 87 id. 185; Ohurch v. English, 81 id. 442; Dowell v. Morían, 78 id. 163; Waldo v. Spencer, 4 Conn. 71; Raymond v. Smith, 1 Met. (Ey.), 65; Summersett v. Summersett's Admhr, 40 Ala. 596; 1 Bish. Grim. Proc. sec. 1343; 20 Am. & Eng. Ency. of law, 525.</p> <p>They argued, among other things, that a mere clerical error in the record may be amended, no matter how important a part thereof it may be. Ereeman, Judgm. sec. 72; 20 Am. & Eng. Ency. of Law, 524; Dolman v. State, 79 Ga. 155; Green v. State, 19 Ark. 189; State v. Littlefield, 3 R. I. 124; State v. Glark, 18 Mo. 432; West v. State, 22 N. J. Law, 212. The correction may be made after a writ of error has been sued out. Kelly v. G. <& D. W. B. Go. 70 Wis. 335; Wymam, v. Buck-staff, 24 id. 477; Chesinutt v. Pollard, 77 Tex. 86. And after the term at which the judicial act was performed. Dill v. Hoover, 5 Wis. 354. Record evidence is not necessary. Baleh v. Shaw, 7 Cush. 282; Bilansky v. State, 3 Minn. 427; In re Wight, 134 U. S. 137; Bousset v. Boyle, 45 Cal. 64; Pay v. Wenzell, 8 Cush. 315; Savage v. Blanchard, 148 Mass. 348; Gloucester v. Go. Gomm’rs of Essex, 106 id. 579; -Marsh v. McKenzie, 99 id. 64.</p>

<p> 'Competency of child to testify: Sufficiency of evidence: “ Open lewdness.” </p> <p>1. Whether a child above the age of four years is competent to testify is to be determined by examination of the child in court, and the question is addressed to the discretion of the trial court.</p> <p>•2. A conviction of the offense of open and gross lewdness may be sustained upon the testimony (with some corroboration) of a child five years and five months old, who was less than five years old when the offense was committed.</p> <p>;8. An act of gross lewdness is “open,” within the meaning of sec. 4579, R. S., though committed in a private place and when no one was present but the defendant and the person upon whom the act is alleged to have been committed, and although such person was a child of tender years.</p>

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

<p> Promissory notes: Duress: Avoidance: Restoration of consideration. </p> <p>1. A wife may avoid her note made under duress of threats of criminal prosecution of her husband.</p> <p>2. Under duress of threats of criminal prosecution of her husband on the charge of forging notes deposited as collateral security for his own notes to a bank, a wife gave her note to the bank for the amount of her husband’s notes. The cashier of the bank thereupon delivered the husband’s notes and the collaterals to a friend of the wife, who, at once, in the presence of the cashier, handed them to her, telling her to give them to her husband, and she afterwards did so. In an action by the bank upon the wife’s note, it is held that she may avoid it on the ground of duress without restoring her husband’s notes or the collaterals to the bank, Winslow and Pinney, JJ., dissent.</p> <p>As to contracts procured by threats of prosecution of a relative, see note to this case in 26 L. R. A, 48. — Rep.</p>

This is an action of replevin to recover possession of a printing-office outfit. It appeared by the plaintiffs’ evidence that the property had been sold to one E. Cleary while the action was pending. The defendants asked leave to amend the answer so as to set out “ that, as it now appears, the plaintiffs are not the real parties in interest in the action.” Leave to so amend was denied.

<p>APPEALS from the Circuit Court for Milwaukee County.</p> <p>This is an action in equity brought to set aside as fraudulent certain sales of real estate made by John II. Tesch and Helen Hawley, executors of the will of Cyrus Hawley, and for an accounting. A demurrer to the complaint was overruled upon appeal to this court. See Hawley v. Tesch, 72 Wis. 299.</p> <p>Cyrus Hawley died June 1, 1871, testate, appointing his widow, Helen Hawley, his son Cyrus Tomlinson Hawley, and the defendant John H. Tesch executors and trustees of his will. He died seised of sixty-six acres of land in the town of Wauwatosa, Milwaukee county, and nearly one hundred acres within the city limits of the city of Milwaukee, bounded on the north by Chestnut street, on the south by Grand avenue, on the east by Twenty-Third street, and on the west by Twenty-Seventh street. By his will, which was probated July 3, 1871, he gave the sixty-six acres of land in Wauwatosa to a son, Walliston Kent Hawley. He gave to his wife the use during her life of his homestead, which consisted of that part of the 100-acre tract lying between Grand avenue and'Wells street. He gave to her also his personal property and household furniture, and a dwelling house, and directed his executors or trustees to pay her sufficient money to support her, and such of her children and grandchildren ás should live with her, until the sum of $20,000, later mentioned in the will, should be received and paid over to the trustee appointed to receive it. The residue of his estate he devised to his executors, and the survivor of them, in trust for certain purposes, among which was to accumulate a fund of $20,000, which, when accumulated, was to be paid over to Cyrus T. Haw-ley, to hold in trust and to loan on real estate security and pay over the interest thereon to said Helen Hawley, and, if necessary for her support, to pay her also such part of the principal as should be necessary to maintain her. Other trusts were created by said will in favor of his grandchildren, the appellants in this action, which are unnecessary to be stated here, and full power vras given to the executors to sell at public or private sale, for cash or on credit, all the property thus devised to them in trust. All of the executors named in the will accepted the trust and qualified.</p> <p>The plaintiffs, Helen Hawley and Tomlinson Kent Haw-ley, are the children of Cyrus Tomlinson Hawley, who died February 10, 1880. They are still minors. The defendants Robert H. Hawley, Clara 1). Hanoley, djaA.Helen A. Hawley are the children of Charles W. Hawley, who died prior to the commencement of this action, and he was a son of Cyrus Hawley. The plaintiffs and the three last-named defendants are the only persons interested in the estate of Cyrus Hawley, except the widow, Helen Hawley. Cyrus T. Hawley became the active executor of the estate, and gave his whole time to the management thereof until his death. Helen Hawley, the mother, was over seventy years of age and was mentally weak, and never took any active part in the administration of the estate.</p> <p>Prior to the death of Cyrus Tomlinson Hawley in 1880, some part of the lands devised in trust to the executors had been sold by him under the power of sale in the' will, and deeds made by the executors. Some streets had also been opened through the land, and grading had been done to fit the land for sale. At the time of Cyrus T. Hawley’s death, no part of the $20,000 fund for the support of the widow had been raised, and the estate was in debt to the amount of $12,000 or $13,000. In December, 1883, the circuit court of Milwaukee county duly appointed the defendant Tesoh as special trustee to have charge of the $20,000 fund, in place of Cyrus Tomlinson Hawley, deceased. It was found upon the death of C. T. Hawley that his accounts were in serious confusion, and that he had appropriated moneys of the estate to his own use. Mr. Tesoh thereupon became and continued to be the active executor of the estate.</p> <p>Eor the alleged purpose of raising the $20,000 trust fund, Tesoh, on the 1st day of August, 1881, made a contract with Louis L>. Yogel, of St. Louis, for the sale to him of all the remaining lots and lands belonging to the estate, except certain lots partly within the limits of the plank road, and except all but the west one hundred feet of the homestead block, for the price of $30,000. This contract was signed by Helen Hawley, the widow, on the representation, made by Tesoh, that it was absolutely necessary in the course of the settlement of the estate. This contraot was never recorded. Although nominally it was a contract with Yogel, it was in fact a contract made for the benefit of Imre Boos, a son-in-law of the defendant Tesoh. Yogel was a resident of Missouri, and occupied a clerical position in a manufacturing establishment in that city. He was a nephew of Tesoh’s wife. Boos was indebted to Tesoh, his father-in-law,. in the sum of about $25,000, which he had no means of paying. He assisted his father-in-law, Tesoh, in the drug business in the city of Milwaukee, and also aided Tesoh in his real-estate operations. The arrangement between Tesoh and Yogel and Boos was that Vogel’s interest in the contract should be one twentieth for the use of his name, and Boos should have the remaining nineteen twentieths. Boos’ interest in the contract was concealed from the Hawleys, and was not discovered until shortly prior to the com-. mencement of this suit. Vogel paid no attention whatever to the land after the purchase. It was arranged that Boos should act as the agent of Vogel, and Boos and Tesch retained charge of the land, made sales and improvements, and opened an account with Louis D. Vogel on the books of J. H. Tesch at the drug store. The proceeds of all sales of real estate made after August 1, 1881, were credited to Vogel upon this account, and he was charged with all disbursements made for improvements and taxes and other expenses. Boos and Vogel never made any payment whatever upon the contract, or, if any, it was merely a nominal sum. Boos and Tesch proceeded to open streets through lands, and spent large sums of money in grading the same, and made sales as rapidly as possible. As the contract with Vogel was never recorded, the deeds upon these sales were all made by Tesch and Helen Hawlej^ as surviving executors, and, if mortgages were given back, they were made payable to such surviving executors. The consideration for such sales was, however, credited by Tesch and Boos to the account of Vogel, and after the account of Vogel was closed in November, 1883, to the account of Boos, and the defendant Tesch was repaid, out of the receipts arising from the sales, the $25,000 which Boos owed him on August 1, 1881. The sales made in this way to innocent purchasers amounted to nearly $90,000, which the plaintiffs have not attempted to set aside in this action, but for which the defendants Boos and Vogel and Tesch have been required to account by the judgment in this action, with interest at seven per cent., figured with annual rests.</p> <p>The defendants Vogel and Boos had also caused to be made to themselves conveyances of a few lots covered by the contract, for which they paid no money to the estate, and which they treated as a division among themselves, in land, of part of the profits of the contract. These conveyances were also set aside as null and.void by the decree of the circuit court. Boos erected a dwelling and barn upon the lots so set off to him in severalty, and occupied the same down to the 11th day of April, 1891, when he surrendered possession thereof to John Johnston, who had been appointed trustee of the Hawley estate in the place of Tesch and Helen Hawley, who had been removed by an order of the circuit court.</p> <p>In the latter part of the year 1883, there was still unsold of the trust property about 200 city lots, and three sales were then or soon thereafter made, by which all, or substantially all, of said property was closed out. One of these sales was to the defendant W. D. Anderson, and covered several lots, for the consideration of $4,000. Another sale was to the defendant Emma Eckstein, covering five lots, for the consideration of $2,000. And the other sale was to the defendant Charles J. Munkwitz for the benefit of himself, W. W. Coleman, since deceased, and the defendant Boos, in equal shares, and covered nearly 200 lots; the consideration named in the deed being $50,000, but the actual consideration in fact was $75,000. All of these sales are attacked by the plaintiffs as being fraudulent and void, and they claim that they should be set aside, and the title of the property covered by said deeds should be held to be still in said estate. The defendant William I). Anderson is a son-in-law of Tesch, the defendant Emma Eckstein was the housekeeper of Tesch, the defendant Coleman was a brother-in-law of Tesch, and the defendant Munkwitz was intimately acquainted with both Boos and Tesch and knew the relationship between them. On the part of Munkwitz and the heirs of Colemán, who have been substituted as defendants in this action since the death of W. W. Coleman, it was insisted that they were innocent purchasers, without knowledge of any fraud, and the same claim was made by the defendants Anderson and Eckstein.</p> <p>The circumstances as to the Munkwitz and Coleman purchase are as follows: Boos pretended and gave out to Munhwitz and to Coleman that the land belonged to the Hawley estate, and proposed that Coleman and Munhxoitz should purchase the same as a good investment at the price of $80,000, Boos pi’etending at the time to act simply as the agent of the trustees. Coleman and Munhwitz declined to purchase alone, but consented to make the purchase at $75,000, provided Boos would take a one-third interest in the purchase. Thereafter negotiations were made with Tesch for the purchase, Tesch pretending to act as the representative of the Hawley estate, but in fact acting for Boos, and Boos pretending to act as a purchaser with Munhwitz and ColemaD, but in fact.acting secretly as a seller of two thirds of the property to them. These negotiations took .place in November, 1883, or about that time, and, as a result or in course thereof, Munhwitz, Cole-' man, and Boos concluded to purchase, and made a written contract, dated November 2, 1883, of partnership, which recited that they had that day entered into a partnership with a capital of $90,000 for the purpose of buying, improving, and selling the Hawley real estate, each of them to share one third of the gain or loss; the said real estate to be described in a deed which was to be made by John 11. Tesch and Helen Hawley, as surviving executors, to Charles Munhwitz, and held by him in trust for the three; the purchase price of $75,000 to be paid by the subscribers in equal proportions, each one third,— $45,000 in cash, and for the remainder of $30,000 each was to give his individual notes amounting to $10,000. The sum of $15,000 of the capital stock was to be reserved for the purpose of making all necessary improvements, and was to be paid equally by the subscribers, each one third. The duties of the subscribers were also prescribed in this agreement, by which it appeared that Charles Munhwitz was to receive and pajr out and keep account of all moneys, and call meetings of the parties; Coleman was to give the influence of his publication and advertise the property; and Boos was to superintend all grading and improvements that might be necessary, and act as agent in selling lots. A deed of the property, made by the executors, Tesch and Hawley, was delivered November 5, 1883, and another deed, for the purpose of correcting some errors in the previous deed, was made in May, 1884. Coleman and Munlcwitz each paid to Tesch the full amount of $25,000 for an undivided one-third interest in the land described in the Munlcwitz deed, and they knew nothing of the Vogel contract or Boos' interest in the land before making such payments. Boos paid nothing for the remaining one-third interest, but claimed and still claims to hold his third interest under the Vogel contract. Of the $50,000 received by Tesch from Coleman and Munlc-witz, $20,000 was invested in a mortgage for that amount, bearing interest at six per cent, per annum, and Tesch held the same in trust for the use and benefit of Helen Haw-ley, under the provisions of said will, until his removal as trustee. The remaining $30,000 paid by Coleman and Munlcwitz was turned over by Tesch as fast as it came into his hands to Boos, or applied upon Boos' private account. After the Munlcwitz deed was made and delivered, Munlc-witz., Coleman, and Boos proceeded to further improve the property, grade the same and lay out streets, build sidewalks and sewers, and proceeded to sell portions thereof to innocent purchasers.</p> <p>After a long trial in the circuit court, the circuit judge in September, 1890, made the findings of fact substantially as above set forth, and held the Vogel sale to be fraudulent and void, and required the defendants Tesch, Boos, and Vogel to account for all sums received upon the sale of lots to innocent purchasers after the execution of such contract, with interest at seven per cent. The circuit court also set aside entirely the Vogel contract, and set aside the convey-anees to Boos and. Vogel in pursuance thereof, as fraudulent and void. The circuit court, however, held the defendants Eclcstein, Anderson, Munhwitz, and the heirs of W. W. Coleman to be Iona fide purchasers, without notice of any fraud, but required Munhwitz to convey Boos' undivided third part of the unsold lands which had been conveyed to Munhwitz to the trustees of the estate. An interlocutory order or judgment was also entered at the same time upon the findings, ordering and adjudging the removal of Teseh and Helen Hawley as trustees, and the appointment of John Johnston in their stead, and requiring the former trustees to pay over all trust property in their hands to the said Johnston. It was further adjudged that Boos and Vogel convey to Johnston, the trustee, all the lots to which they had obtained title; also, that Munhwitz convey to the trustee one third of the lands remaining unsold covered by the Munlcwitz deed; also, that Munlcwitz account and pay over to said trustee one third of the proceeds derived from all sales to bona fide purchasers made from, said lands, less one third of the expenses for improvements and taxes paid. As to the remaining two thirds of said lands, and the moneys derived from the sale of such part thereof as had been sold to innocent purchasers, it was adjudged that Munhwitz and the heirs of Coleman were the owners thereof. It was further adjudged that the defendants Anderson and Eclcstein were innocent purchasers of the lots conveyed to them, without notice of any fraud. It was further ordered that the defendants Munhwitz, Boos, Vogel, and Teseh account under oath, before Hugh Eyan, Esq., court commissioner, as referee, for the proceeds and avails of all of the lands sold by them which were included in the Vogel contract, after deducting the amount actually expended by them in the improvement of said property and for the payment of taxes thereon; also, that they account for the value of the lots and profits of the lands actually used and occupied by or under either of the said defendants Boos, Vogel, and Tesch, and that said accounting be had upon the principle of partial payments, with annual rests on the 1st day of August in each year, with interest computed at the rate of seven per cent, per annum on each balance. It was further adjudged that the defendant Mu,nk-witz state under oath to the referee the number and description of lots remaining unsold, and account for the amounts received from the sale of lots included in the Munkwitz deed and the amount expended for improvements of the lands and paid for taxes and assessments. It was further ordered that, as to the defendants Anderson, Eckstein, and the heirs of W. W. Coleman, said complaint be and was thereby dismissed, and also that the complaint be dismissed as to the defendant Munkwitz, except for the purposes of an accounting as aforesaid.</p> <p>Numerous exceptions were filed to the aforesaid findings on behalf of the plaintiffs, Helen Hawley and Tomlinson Kent Hawley, and also on behalf of the defendants Robert W. Hawley, Clara H. Hawley, and Helen A. Hawley, but no appeal was taken from that order, and thereafter the accounting was proceeded with before the referee on the principles laid down in the order.</p> <p>Upon the coming in of the report of the referee, the same was confirmed, and thereupon final judgment was rendered, reaffirming the removal of the former trustees, Tesch and Helen Hawley and the appointment of John Johnston in their stead; setting aside and declaring null and void the Vogel contract of August 1, 1881; also, setting aside all deeds of lots made by the executors to Imre Boos and to Louis D. Vogel; also, approving and confirming a conveyance made by Munkwitz and wife to Johnston, as trustee, October 'T, 1891, of the undivided one-third of the real estate covered by the Munkwitz deed which had not beén sold to innocent purchasers, and divesting Boos of all title to said undivided one-tbird; also, adjudging that tbe defendants Boos and Vogel pay to Johnston, as trustee, the sum of $102,811.55, with interest at seven per cent, per annum from August 1, 1892, and, in case said Boos and Vogel failed to pay the same, that said Tesch pay the same to said Johnston, as trustee aforesaid; also, adjudging that the defendant Boos pay to the trustee certain smaller sums, amounting in all to the sum of $2,164.82, arising out of land covered by the Munhwitz deed ;• also, that Munhwitz assign to Johnston, as trustee, an undivided one-third of certain contracts for the sale of land, being a part of the lands covered by the Munhwitz deed. It was further adjudged that Munhwitz was an innocent purchaser of an undivided one-third of the land conveyed to him by the executors’ deed; that Coleman was an innocent purchaser of another undivided one-third of said land; and that the defendant Eoh-stein was an innocent purchaser of the lots conveyed to her, and that the defendant Anderson was an innocent purchaser of the lots conveyed to him.- As to all these innocent purchasers the action was dismissed, with costs. The plaintiffs recovered costs of the defendants Tesoh, Boos, and Vogel.</p> <p>The plaintiffs and the defendants Robert H. Hawley, Clara D. Hawley, and Helen A. Hawley appealed from so much of the final judgment as adjudges — first, that the defendants Munhwitz, Coleman, Anderson, and JEehstein were innocent purchasers of the real estate conveyed to them; second, that the defendant Boos should be allowed the sum of $5,000 on account of the house and barn built by him upon a part of the property; third, that the defendants Boos and Vogel should be allowed for the money spent by them for grading and other improvements and taxes in the management, care, and sale of the property embraced in the Vogel contract; fourth, that the defendant Boos should be allowed one third the money expended by the firm of Munkwitz, Coleman & Boos for improvements and taxes and other expenses in the management and sale of the property conveyed to Munlcioitz; fifth, that the defendants Boos and Vogel should not be charged for damages sustained by the estate for mismanagement in handling and disposing of the property.</p> <p>The defendant Munl&witz appealed from that part of the judgment which required him to pay $1,133.23, as interest from January 1, 1888, to September 19, 1890, at seven per cent, per annum, upon $5,956.58, which the referee found that Mr. Munhwitz had in his hands on account of the one-third interest of the defendant Boos in the lands conveyed by the Munhwitz deed.</p> <p>All the appeals were argued together in this court.</p> <p>They contended, inter alia, that a sale of trust property is void as to all purchasers, if the agent of the trustee is joined in the sale as one of the purchasers. The general rule is that a sale by a trustee to himself, his attorney, his agent, or to anyone occupying any fiduciary relation to the trust, is void or voidable at the election of the eestui que trust, and the question of the fairness of the sale or the price is immaterial. King v. Remington, 36 Minn. 15; O'Dell v. Rogers, 44 Wis. 136; Hoffman Steam Goal Co. v. Cumberland G. <& I. Go. 16 Md. 456; OooTc v. Berlin W. M. Go. 43 Wis. 433; Keith v. Kellam, 35 Fed. Eep. 243.; Pooley v. Quilter, 2 De G. & J. 327; Kx parte Burnell, re Lincoln, 7 Jurist, Part 1,116; Miichumhs Heirs v. Mitchum Admlrs, 3 Dana (Ky.), 260. The court will not permit a third party to obtain any interest in trust property by joining with the trustee in the sale. The whole sale is void. The fact that the purchaser knew that his co-purchaser was incapacitated from purchasing is sufficient to avoid the whole sale.</p> <p>Tbe deed to MunJaoitz should be set aside both, as to him and as to Coleman upon the ground that they had knowledge of such facts as would put a prudent man upon inquiry. Brinlcman v. Jones, 44 Wis. 519; Uooser v. Hunt, 65 id. 71; Shaw v. Spencer, 100 Hass. 382; Duncan v. Jau-don, 15, Wall. 175; Hoppin v. Doty, 25 Wis. 573. Innocence and want of actual knowledge of fraud is no defense if the party had notice of the facts from which the law may infer fraud. Wormley v. Wormley, 8 Wheat. 449. The law considers certain things necessary to be done in order to enable a person to be a bona fide purchaser of trust property from trustees, and a prudent man would act accordingly. He must have actually paid the whole price, and he must have got his deed before notice. 1 Perry, Trusts, §§ 219, 221; Story Eq. Jur. § 1502; Hoffman Steam Goal Co', v. Cumberland C. <£s 1. Co. 16 Md. 479; Worrriley v. Wormley, 8 Wheat. 421, 450; Everts v. Agnes, 4 Wis. 343; Nantz v. McPherson, 7 Mon. (Ky.), 597, 600; Willard, Eq. Jur. (Potter’s ed.), 609; Palmer v. Williams, 24 Mich. 333; Burton v. Reagan, 75 Ind. 77; Paul v. Fulton, 25 Mo. 156; Dugan v. Vattier, 3 Blackf. 245. Giving security is not equivalent to payment. Sugden, Yendors, *753; 1 Perry, Trusts, § 219; Willard, Eq. Jur. 609; Jaclcson v. Cadwell, 1 Cow. 622; Jeioett v. Palmer, 7 Johns. Ch. 65; Patten v. Moore, 32 N. II. 382; McBee v. Loftis, 1 Strob. Eq. (S. C.), 90; Harris v. Norton, 16 Barb. 264; Rhodes v. Creen, 36 Ind. 10'; Thomas v. Graham, Walker, Ch. (Mich.), 117. Again, a prudent purchaser would see to actual payment of the money to the trustees, and get a receipt for the purchase price. 2 Perry, Trusts, §§ 790, 806, 808; Lewin, Trusts, 474. Again, a prudent purchaser would make some inquiry and ascertain if the sale was satisfactory to the cestuis que trustent. Again, the purchase of real estate from trustees is something more than ordinary buying and selling, and no prudent man would undertake himself to perfect sucb a purchase. 2 Sugden, Yendors (8th Am. ed.), 53l, *756; Boursot v. Savage, L. E. 2 Eq. Oas. 141; Kennedy v. Oreen, 3 Mylne & IL 713. Again, a prudent purchaser would not leave the drawing of the deed to the purchaser or his agent. If he does so, he is bound by notice, actual or constructive, of any defect in the title that such seller or agent may have acquired in the completion of such sale, although such seller or agent may conceal the same from the purchaser. Spencer v. Topham, 2 Jurist (N. S.), 865; Mayoribanlcs v. Hovenden, 6 Ir. Eq. 238; Espin v. Pember-ton, 3 De G. & J. 547; McMahon v. McElroy, 5 Tr. Eep. Eq. 1. All authorities agree that it is a matter of suspicion and requiring inquiry, where the trustee is selling the trust estate to a relative. Such a sale is not of itself void, but it is suspicious, and no person is justified in joining in any such sale without having made the fullest inquiry that the sale is fair and satisfactory to all the cestuis gue trusteni, and that the money is actually paid to the trustees.</p> <p>The conveyance to Munlewitz is void for the reason that it was made in reality to the partnership composed of Boos, Munkwitz and Coleman, and notice to one partner is notice to all. King v. Pemington, 36 Minn. 15; Sanderd Heirs v. Puddle, 2 Mon. (Ky.), 139; Kilby v. Wilson, Eyan & M. 178. If a person seeks to'avail himself of the benefits of a transaction made for him through the aid of another party, he thereby makes such party his agent and ratifies the acts of such agent, and takes the benefits subject to all the disabilities by which the transaction was effected. He cannot claim the benefits without being subject to the disabilities. 5 Am. St. Eep. 109, note; Mechem, Agency, §§ 130, 148, 167,174; Wade, Notice, § 668; Graves v. Spier, 58 Barb. 349, 386, 387; MeLew% v. Ciarle, 47 Ga. 25, 70; Olmsted v. Hotailing, 1 Hill, 318; Bennett v. Judson, 21 N. Y. 239; Elwell v. Chamberlin, 31 id. 611, 619; Stewart v. Johnson, 18 N. J. Law, 87; Presby v. Parker, 56 N. H. 409. The refusal of Munkwitz and Coleman to return the property bought through the aid of Boos, and the retention of the benefits arising therefrom, are equivalent to ratification of all that Boos did to effect the sale, and Boos must be treated as their agent, and they are bound by all the knowledge that Boos had. In this view of the case, it is immaterial whether the sale was a sale of the whole property to the partnership of Munkwitz, Coleman & Boos, or a sale of separate undivided thirds to Munkwitz, Coleman, and Boos. In either event the sale was brought about through the aid and agency of Boos, and but for his agency neither Munkwitz nor Coleman would ever have purchased an interest in the property. In order that the knowledge of an agent may not bind his principal, the agent must be committing, in the same transaction in which he is employed as agent, an independent- fraud for his own benefit and designedly against the principal, which fraud must be of such a nature that its existence and possibility depends upon the concealment of the real facts from the principal. Pom. Eq. Jur. § 675; Majoribanlcs v. Hovenden, Ir. Eq. 238; Hewitt v. Loosemore, 9 Hare, 449; Sanltey v. Alexander, Ir. Hep. 9 Eq. 260; McMahon v. McElroy, Ir. Eep. 5 Eq. 1; Tuaker ¶. Henzill, 4 Ir. Ch. 513; Atkins v. Delmege, 12 Ir. Eq. 1; Espin v. Pemberton, 3 De Gf. & J. 547; Speneer v. Topham, 2 Jurist (N. S.), 865; Bradley v. Biches, L. K,. 9 Ch. L>iv. 189; Boursot v. Savage, L. H. 2 Eq. 142; Robinson o. Briggs, 1 Smale & G-. 226.</p> <p>Where a person fraudulently obtains and holds possession of the real estate of another and afterwards expends money in its care and improvement, such wrong-doer is not entitled to any compensation for the money so expended. Railroad Oo. v. Soutter, 13 Wall. 517; Waterman v. Button, 6 Wis. 265; Thompson v. Thompson, 16 id. 91; Witt v. Trustees Grand Grove, 55 id. 380; Gaines v. Lizardi, 1 Wood (U. S.), 56; Gillespie v. Moon, 2 Johns. Ch. 602; Woodhull v. Rosenthal, 61 N. T. 396, 397; 2 Kent, Comm. 338; Molones v. McGee, 64 Miss. 129; Dawson v. Grow, 29 W. Ya. 333; Mill v. Hill, 3 H. L. Cas. 869; Van Horne v. Fonda, 5 Johns. Ch. 416.</p> <p>to the point that the defendants Boos and Vogel should not be allowed for the money spent by them for alleged improvements, taxes, and other expenses incurred by them in the management and sale of the property, cited 3 Pom. Eq. Jur. §§ 1240, 1241; Witt v. Trustees Grand Grove, 55 Wis. 376; Blodgett v. Hitt, 29 id. 169, 190; Thompson ¶. Thompson, 16 id. 91, 94; Putnam v. Ritchie, 6 Paige, 390, 405; Pitt v. Moore, 6 Am. St. Eep. 489, note; Prickeit v. Much, 74 Wis. 200; 10 Am. & Eng. Ency. of Law, 247; Searl v. School Distinct, 133 U. S. 553; Woodhull v. Rosenthal, 61 N. Y. 382, 396; Jackson v. Loomis, 15 Am. Dec. 350, note; Wood v. Wood, 83 N. Y. 575; Wood v. Conrad, 50 N. W. Eep. 95; Galle v. Ellis, 120 Ill. 136; Holmes v. McGee, 64 Miss. 129; Newell, Ejectment, 631; Garter v. Brown, 35 Neb. 670; Jones v. Steam Stone Gutter Co. 20 Eed. Eep. 477,</p> <p>contended, inter alia, that trustees have an inherent right to be reimbursed for all expenses properly incurred in the execution of the trust. Hill, Trustees, 570; 7 Am. & Eng. Ency. of Law, 431; Sanderson v. Sanderson, 20 Fla. 292; Dey v. Godman, 39 N. J. Eq. 258; Qarves v. Owens, 58 Hun, 609; Davoue v. Fanning, 2 Johns. Ch. 252; Michoud v. Girod, 4 How. 583; Kerr, Frauds, 333, 345, 347; 2 Perry, Trusts, §§ 910, 912, 913, 915; 2 Pom. Eq. Jur. § 1085. These allowances are made even when the trustee has acted in violation of the trust. In such case the trustee will be charged interest, and if the violation of the trust be gross, compound interest, and he may also be denied all compensation for time and services devoted to the care and disposition of the subject of the trust; but while he will be charged interest and denied compensation, he will be allowed actual disbursements ■ necessarily incurred in the management of the estate, or clearly beneficial thereto, either as enhancing its value or increasing its productiveness. In many cases such allowances are made to persons held to be trustees by implication, on the ground of fraud. Fox v. Mackreth, 1 Lead. Cas. Eq. (3d Am. ed.), 206, 219; Oliver v. Oourt, 8 Price, 127, 172; Baugh v. Price, 1 Wilson, 320; Ebelmes-ser v. Ebelmesser, 99 Ill. 541; Kinney v. Knoebel, 51 id. 112; Fishbeeh v. Gross, 112 id. 208; Botch v. Morgan, 105 Mass. 426; How v. Gamp, Walker, Ch. 427.</p> <p>They argued, among other things, that the appellants cannot maintain the inconsistent position of prosecuting an appeal with intent to get the lands, after appropriating and holding the price at which they were sold. Murphy v. Spaulding, 46 N. Y. 556; Genet v. Damenport, 60 id. 194; Garll v. Oakley, 97 id. 633; Bennett v. Van Syckel, 18 id. 481; Webster-Glover L. Mfg. Go. v. St. Groix Go. 71 Wis. 317. One who accepts the benefit of an order or the condition of an order waives the right to appeal therefrom. Flanders v. Merrimac, 44 Wis. 621; Cogswell v. Colley, 22 id. 399; Pettit v. Eamlyn, 42 id. 434; Abbott v. Johnson, 47 id. 239; Likens v. McCormick, 39 id. 313; Smith v. Coleman, 77 id.- 343. The same rule applies to all cases of fraud. One who proves a debt under an assignment thereby waives all objection to the assignment which is.known to him or of which he has notice at the time of- his proofs. Littlejohn v. Turner, 73 Wis. 113. So, too, a creditor who has been defrauded of his goods, if he sue for and obtain judgment for the price (knowing the fraud), or proves his claim against an estate in insolvency, thereby waives his right to recover the property. Ormsby v. Dewrborn, 116 Mass. 386; Seavey v. Potter, 121 id. 29T; Stoutenburgh <o. Konhle, 15 N. J. Eq. 33. Even the bringing of a suit for the price, which is discontinued, will have the same effect if brought with knowledge. Dullcley v. Morgan, 46 Conn. 393 y Adler v. Fenton, 24 How. 407; Dibblee v. Sheldon, 10 Blatchf. 178; Dellone v. Hull, 47 Md. 112; Emma Silver Minmg Oo. v. Emma S. M. Go. of IT. Y. 7 Eed. Eep. 424; Bach v. Tuck, 126 N. Y. 53. So the taking of security for the price waives the fraud and precludes the right of recovering the property. Joslin v. Cowell, 52 N. Y. 91.</p>

<p>APPEAL from the Circuit Court for Ohippewa County.</p> <p>This action is brought to recover damages for a barn and its contents, burned, as plaintiff claims, by reason of defendant’s negligence. Near the city of Eau Claire there is a plateau about eighty feet above the level of the surrounding country. In August, 1889, two large frame buildings, about 325 feet distant from each other, stood upon this plateau, one being a county fair building known as Floral Hall, and the other being the barn of the plaintiff. These buildings were about the same height, and upon the top or ridge of each there stood • a flagpole or mast twenty to thirty feet in height. Prior to the ybar 1888 the defendant had constructed a telephone line from the highway running past the fair grounds. In September, 1888, the defendant placed a telephone in Eloral Hall, and connected it with Ho. 12 wire with its telephone line on the highway. This connecting wire ran from the highway first to tjhe flagpole upon'plaintiff’s barn, and was there tied to the pole; from thence it ran directly to Eloral Hall. There was a dispute as to the place where this wire was fastened to Eloral Hall, the plaintiff’s witnesses testifying that it was fastened directly to the flagstaff upon Eloral Hall, a foot or so above the roof, while the defendant’s witnesses claim that it was attached to nails on the side of the building. The plaintiff gave no permission to' attach the wire to his barn, and testified that he had no knowledge that it was so attached. A ground wire from the telephone in the interior of Eloral Hall ran up to the flagstaff, and thence a distance of about 376 feet to the ground, where it was attached to an iron water pipe. Some time in the fall of 1888 the defendant took out the telephone from Eloral Hall, together wTith the insulated wire in the interior of the building. The ground wire was left intact, and so was the wire from Eloral Hall to the barn. The wire from the highway to Jaoleson’s barn was taken down, but it was claimed by the plaintiff’s witnesses that a considerable piece of said wire at the barn end thereof was left resting upon th'e roof of the barn.</p> <p>On the night of the 20th day of August, 1889, there was considerable rain. At about 4 o’clock in the morning there was a flash of lightning, which was described by the witnesses as a blinding flash, and which was thought by them to have descended upon Eloral Hall. In a few minutes the roof of plaintiff’s barn was in flames, and the barn and its contents were destroyed. Two men were sleeping in a shed or building upon the fair ground, and they immediately went to the barn, and testify that the flagpole upon Eloral Hall was completely shattered, while the flagpole upon the barn was untouched. The plaintiff’s claim is that the lightning struck Floral Hall, and was conducted by the wire to plaintiff’s barn, and set it on fire, and that the defendant was negligent in leaving the wire thus attached to the barn. Much expert evidence was adduced on both sides as to the probability of lightning passing over such a wire and destroying the barn. A motion for nonsuit was overruled, as was also a motion to direct a verdict for defendant.</p> <p>The jury returned a special verdict, finding: First, that the defendant connected the plaintiff’s barn with Floral Hall by means of a telephone wire attached to the flagstaff of the barn and to the flagstaff on Floral Hall, without any intermediate attachment; second, that defendant left the wire so located on the plaintiff’s barn that a portion of the same rested on the roof; third, that the barn was thereby subjected to danger of being destroyed by fire caused by lightning electricity passing over such wire from Floral Hall to the barn; fourth, that the fire was caused by lightning electricity so passing over said wire; fifth, that in so leaving the barn connected with Floral Hall the defendant’s servants were guilty of want of ordinary care; sixth, that such want of ordinary care was the proximate cause of the fire; seventh, that this result was one which a person reasonably well skilled in the defendant’s business might reasonably have expected would probably occur; eighth, that the plaintiff did not give defendant permission to attach the wire to his barn; ninth, that plaintiff did not know, before the fire, that his barn was connected with Floral Hall by the wire; tenth, that he did not know of the danger before the fire; eleventh, that the plaintiff’s damages were $9,258. From judgment for the plaintiff upon this verdict the defendant appeals.</p> <p>They contended, inter alia, that the proximate cause is the cause which led to, and which might have been expected to be directly instrumental in producing, the result. State v. Manchester da L. R. Go. 52 1ST. H. 552; Topsham v. Lisbon, 65 Me. 449; Ins. Go. v. Boon, 95 U. S. 117. In other words, the injury must be the natural and probable consequence of the negligence. Hoag v. L. S. dé M. S. R. Go. 85 Pa. St. 293; Perm R. Go. «. Kerr, 62 id. 353; West Mahanoy v. Watson, 116 id. 344; Milwaukee <& St. P. R. Go. v. Kellogg, 94 U. S. 469; Putnam v. B. <& S. A. R. Go. 55 27. T. 108; Sharp v. Powell, L. E. 7 0. P. Oas. 253; Addison, Torts (B. & Bro. ed.), 6; Cooley, Torts, 69. Liability depends upon the fact that the consequence of the act was “ such as under the surrounding circumstances might and ought to have been foreseen by the wrong-doer as likely to flow from his act.” Penn. R. Go. v. Hope, 80 Pa. St. 373; Atchison, T. & S. F. R. Go. v. Stanford, 12 Kan. 354; Poeppers v. M., K. da T. R. Go. 67 Mo. 715; Maher v. W. di St. P. R. Go. 31 Minn.'401; Morrison v. Davis, 20 Pa. St. 171; Lynch v. Knight, 9 H. L. Cas. 577; Crater v. Binninger, 33 27. J. Law, 513; McGrew v. Stone, 53 Pa. St. 436; Henry v. So. Pac. R. Go. 50 Cal. 176; Doggett v. R. da D. R. Go. 78 27. C. 305; Stanley v. TJ. D. R. Go. 114 Mo. 606; Weick v. Lander, 75 Ill. 93; Daniels v. Ballantine, 23 Ohio St. 532; Fent v. T., P. da W. R. Go. 59 Ill. 349; Greenland v. Chaplin, 5 Exch. 243; Atkinson v. Goodrich Transp. Go. 60 Wis. 141. The defendant may have been negligent and the plaintiff may have suffered an injury, but the latter must fail in his action unless the connection between the negligence and the injury can be made out. Adkins v. A. da O. A. R. Go. 27 S. C. 71; Daniel v. Metropolitan R. Go. L. E. 3 C. P. 215; Williams v. G. W. R. Go. L. E. 9 Exch. Cas. 157; Holmes v. Fond du Lac, 42 Wis. 282; Sharp v. Powell, L. E'. 7 C. P. Cas. 253; Pollock, Torts, 43; Regina v. Bennett, 4 Jur. (27. S.), 1088; Vedder v. Hildreth, 2 Wis. ’429; Ward v. M. & St. P. R. Go. 29 id. 144; Harris v. Gameron, 81 id. 239. The act complained of was the act of God. Blyth v. Birmingham W. Go. 11 Exch. 781; Blythe v. JD. dé R. G. R. Go. 15 Colo. 333; Baltimore dé O. R. Go. v. Sulphur Spring Ind. S. Dist. 96 Pa. St. 65; Knoll v. Light, 76 id. 268; Flori v. St. Louis, 69 Mo. 341; Borchardt v. Wausau B. Go. 54 Wis. 107; Mich. Gent. R. Go. v. Burrows, 33 Mich. 6; Long v. Penn. R. Go. 147 Pa. St. 343.</p> <p>They argued, among other things, that the fact that a natural cause contributed to produce the injury which would not have happened without the unlawful act of the defendant, does not make it an act of God and excuse the defendant. 2 Thomp. Neg. 1067; Whart. Neg. § 86; Lord Bailiff v. Gorp. of Trinity House, L. R. 5 Exch. 204; Filet v. St. Louis, K. 0. dé N. R. Go. 12 Am. & Eng. R. Cas. 183; Piedmont <& G. R. Go. v. McKenzie, 75 Md. 458; Polach v. Pioche, 35 Cal. 416, and cases cited; Chidester v. Oonsolidated D. Co. 59 id. 197; Rodgers v. G. P. R. Go. 67 id. 607; Southwestern T. dé T. Go. v. Robinson, 50 Fed. Rep. 810; Dickinson v. Boyle, 17 Pick. 78; Salsbury v. Herchenroder, 106 Mass. 458; George v. Fiske, 32 N. EL 32; McArthur v. Sears, 21 Wend. 196; Pittsburgh vA Grier, 22 Pa. St. 54; Scott v. Hunter, 46 id. 192; Li/oezey v. Phila. 64 id. 106; Baltimore dé O. R. Go. v. Sulphur Spring Ind. S. Dist. 96 id. 65; Gouts v. Keer, 70 Tex. 468; Gleason v. Ya. M. R. Go. 140 U. S. 435. The act of the defendant was the proximate cause of the plaintiff’s loss. Whart. Neg. § 2; Shearm. & Redf. Neg. §§ 29,30; Burrows v. M. G. & G. Go. L. R. 5 Exch. Cas. 57; Smith v. L. & 8. W. R. Go. L. R. 6 O. P. Cas. 21; Sub-Marine Tel. Go. v. Dickson, 15 C. R. (N. S.), 759; Scott v. Shepherd, 2 W. Bl. 892; Lynch v. Fur din, 41 Eng. C. L. 422; Former v. Qeldmecher, 13 Eep. 790; Vaughn v. Menlove, 32 Eng. C. L. 613; Baltimore O. P. P. Go. v. Kemp, 18 Am. & Eng. E. Cas. 231; Powell v. Deveney, 3 Cush. 300; Higgins v. Dewey, 107 Mass. 494; Metallic C. Casting Co. v. Fitchburg B. Co. 109 id. 277; Beauchamp v. Saginaw M. Co. 50 Mich. 163 ; Griggs v. Fleckensieim, 14 Minn. 81; Johnson v. C., M. <& St. P. B. Co. 31 id. 57; Fhrgott v. N. 7. 96 N. T. 264; Lowery v. Manhattan B. Co. 99 id. 158; Milwaukee <& St. P. B. Co. v. Kellogg, 94 U. S. 469; Kellogg v. C. & N. W. B. Co. 26 Wis. 223; Brown v. C., M. & St. P. B. Co. 54 id. 342; Atkinson v. Goodrich Transp. Co. 60 id. 141; Fowler v. C. c& H. W. B. Co. 61 id. 159. The proximate cause of an injury is ordinarily for the jury. It is not a question of science or legal knowledge. It is to„ be determined as a fact in view of all the circumstances of fact attending it. Vaughan v. T. V. B. Co. 3 Hurl. & N. 743; Smith v. L. & S. W. B. Co. L. E. 5 C. P. Cas. 98; Collins v. Middle L. Comm’rs, L. E. 4 0. P. Gas: 279; Bomney Marsh v. Trinity House, L. E. 5 Exch. Cas. 204; S. C. L. E. 7 Exch. Cas. 247; Sneesby v. L. c& 7. B. Co. L. E. 9 Q. B. Cas. 263; Byrne v. Wilson, 15 Ir. Com. Law, 332; The George & Bichard, L. E. 3 Ad. & Ecc. 466; Jones v. Boyce, 1 Stark. 493; Butler v. Wildman, 3 Barn. & Aid. 398; Vandenburg v. Truax,4: De-nio, 464; Fenl v. T. P. c& W. B. Co. 59 Ill. 349; Marcy v. Merchants’ M. Ins. Co. 19 La. Ann. 388; Perley v. Eastern B. Co. 98 Mass. 414; Lund v. Tyngsboro, 11 Cush. 563; Higgins v. Dewey, 107 Mass. 494; Annapolis & F. B. Co. v. Gantt, 39 Md. 115, 141; Brady v. N. W. Ins. Co. 11 Mich. 425; Hoyt v. Jeffers, 30 id. 181; Barton v. Home Ins. Co. 42 Mo. 156; Kuhn v. Jewett, 32 N. J. Eq. 647; St. John v. Am. M. F. & M. Ins. Co. 11 N. Y. 519; Ins. Co. v. Tweed, 7 Wall. 44; Kellogg v. M. & St. P. B. Co. 94 U. S. 469; Ins. Co. v. Boon, 95 id. 117; Kellogg v. C. <& H. W. B. Co. 26 Wis. 223; Brown v. C, M. & St. P. B. Co. 54 id. 342; Atkinson v. Goodrich Transp. Go. 60 id. 141; Ereuziger v. C. <& W. W. R. Co. 73 id. 158; Spaulding v. Sherman, 'IS id. 77; Baltzer v. C., M. <& JST. R. Co. 83 id. 459.</p>

<p> Criminal laui and practice: Complaint and warrant: Change of venue: Writ of prohibition. </p> <p>1. A criminal complaint, subscribed and sworn to before a magistrate and purporting to have been made after the complainant had been duly sworn, will be regarded as a sufficient examination of the complainant on oath, under sec. 4776, R. S.</p> <p>2. Under sec. 4809, R. S. (providing that if a person brought before a magistrate for examination shall make oath of prejudice the magistrate “shall transmit all the papers in the case to the nearest justice or other magistrate, qualified by law to conduct the examination ”), the question whether the nearest justice or other magistrate is so qualified must be summarily determined by the magistrate before whom the oath of prejudice is made, and his determination is conclusive.</p> <p>8. A warrant for the arrest of a person accused of a crime is insufficient if it fails to state any town, village, city, or county in which the alleged offense was committed or the proceedings instituted. A reference to “said county” is unavailing if no county is mentioned.</p> <p>4. A writ of prohibition will not issue to restrain a justice of the peace from proceeding with a preliminary examination, merely because of a defect in the warrant of arrest or because of an alleged former jeopardy of punishment, the ordinary legal remedies being adequate.</p>

<p> Vendor and purchaser of land: Contingent interest: Void devise: Setting aside deed for fraud. </p> <p>A testator devised lands to the city of Superior before it was incorporated. Some of the heirs quitclaimed their .interests therein, for $100 each, to the defendant, a son-in-law of their uncle, who was to contest the validity of the devise, and if successful was to pay each $300 more. Had their title been unquestioned their interests would have been worth much more, but were then not marketable. The devise was afterwards adjudged void. It appearing that the grantors were not induced to make the deed by any misrepresentation, concealment, or undue influence, that at the time they were anxious to sell, and that they knew the state of the title as well as the defendant did, and knew, also, that he depended entirely upon the contingency of success in the proposed legal proceedings to secure any interest in the lands through their deed, it is held that they are not entitled to have the deed set aside on the ground of fraud.</p>

This action was brought against Lombard, sheriff of Polk county, and the Twohy Mercantile Compmiy, for the taking and converting of personal property, the plaintiff claiming title thereto by bill of sale from one Wells.

<p> Contracts: Contradictory pleadings: Evidence: Husband and wife. </p> <p>Plaintiff commenced an action against her husband for services as cook in a lumber camp, and in the complaint, and also in the affidavit for attachment and the verified claim for a lien on railroad ties cut by the men for whom she cooked, stated that she did the work for her husband and that he promised to pay her therefor. She also testified to the same effect on the trial. On an appeal to the circuit court the complaint was amended so as to allege that she did the work for the owner of the ties,, a corporation with which the husband had a contract to get out such ties. The amended complaint also alleged that all the statements in the claim for a lien were true. Upon the trial in the circuit court the testimony of the plaintiff and her husband showed that she was to be paid out of the money coming to him on his contract Held, that a verdict finding that the plaintiff did the work as an employee of the corporation and under a contract with it was not supported by the evidence.</p>

On March 10, 1891, the defendants were éopartners engaged in the business of buying and selling real estate for others upon commission, in West Superior. Among others, they had four lots, belonging to one Stowe, for sale at the price of $8,800. On that day the plaintiff and one Anderson called upon the defendants arid were shown by them various pieces of property they had for sale, including the four lots in question.

This suit is brought to recover on a note of which the following is a copy: “$10,000.00.

The plaintiffs in this action, which is a consolidation of five several claims or actions by the respective claimants into one, sought to enforce liens for divers sums for materials and labor furnished and performed to and for the defendants Gross & Heimer, contractors, in and about the construction and erection of a building .for the defendant Baerlocher, under a contract with her, upon lots 3 and 4 in block 3 in the fifth division of West Superior, Wis., for the sum of…

Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The principal facts are stated in the opinion.

This action was commenced August 23,1893. The complaint alleges, in effect, that the defendant is a foreign corporation ; that prior to May 21, 1891, it was the owner of a large tract of land in Douglas county, which it had caused to be surveyed, platted, and laid out as a town site, named St. Louis; that May 21, 1891, the defendant entered into a contract with the plaintiff by which the defendant promised and agreed, in consideration of the plaintiff purchasing of the…

The facts are stated in the opinion. A jury trial was waived. The defendant appeals from a judgment in favor of the plaintiff.

The facts are stated in the opinion. The defendant ap~' peals from a judgment in favor of the plaintiff. To the point that the remarks of counsel concerning the testimony of Mr. Cowie should work a reversal, they cited, besides cases cited in the opinion, Thompson v. T., A. A. da N. M. JR. Go. 91 Mich. 255; Sullivan v. Deiter, 86 id. 404; Augusta cfi S. JR. Go. v. Randall, 85 Ca. 291; Moody v. Ala.

The respondent filed a petition in the circuit court for Douglas county, in the matter of the proceedings of the Northwestern Coal Railway Company, for the condemnation of block 42 on East St. Croix street in the city of Superior for railway purposes, claiming that the sum of $1,500, paid into court by the company as compensation for taking said premises, should be paid over to him as the owner thereof; and he made the appellant and one Burhans parties to his petition, on…

This is an appeal from an order denying a motion to dissolve a temporary injunction. The question involved is the title or right of the defendant to use a trade-mark or label as a distinctive mark of the flour manufactured by it. The facts are substantially undisputed. In December, 1880, William Listman, as a general partner, and three other residents of La Crosse, as special partners, organized a limited partnership for the manufacture of flour in the city of La Crosse.

This action was brought by the plaintiff to recover damages sustained by him while in the defendant’s employ, in and about its steel works, in making- cores to be used in casting iron water pipes.

<p> Change of venue. </p> <p>The circuit court upon its own motion can change the venue of an-action only in the cases mentioned in sec. 2623, E. S.; and the facts must appear from the record.</p>

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

This is an appeal from an order overruling a demurrer to the return of the respondents to an alternative writ of mandamus issued to compel a meeting of the county board of supervisors of Polk county to consider petitions that bad been submitted in respect to the question of removal of the county seat of that county from Osceola to Amery to the qualified voters as required by law, and to receive and count as upon petition in favor of such submission the names appearing, on a…

<p> Banks and banking: Voluntary assignment: Preferences: Trust fund. </p> <p>Before the making of an assignment by an insolvent bank, an agent deposited money of his principal therein in another than his own name, with notice to the hank that it belonged to third parties. The deposit not having been a special one, and it not being claimed that any part of the money which came to the assignee was the identical money deposited, the assets of the bank are not impressed with any trust in favor of the principal so as to make him a preferred creditor.</p>

The facts are stated in the opinion. They ■contended, inter alia, that the statements, “An alleged shortage at West Superior settled by bondsmen” and The matter was settled by the bondsmen before the meeting of the board,” charge embezzlement. Cochran v. Me-lendy, 59 Wis. 209; Mallory v. Pioneer-Press Go. 34 Minn. 521; More v. Bennett, 48 N. T. 475; Bradley v. Cramer, ■59 Wis. 309.

<p> Vendor and purchaser of land: Cancellation of contract: Surrender of interest by act of parties: Bank check: Consideration. </p> <p>The parties to a contract for the purchase of land mutually agreed that the deal should he considered off, and the contract was accordingly surrendered to the purchaser, and the vendor agreed also to surrender to him a check given for a part of the purchase price and which had been sent away for collection, and that in the mean time payment thereof be stopped. Payment of the check was stopped accordingly, and it was subsequently returned to the vendor by the bank to which he had deliveréd it for collection and which had credited him with the amount thereof, upon his giving his own check to make good the account. Afterwards the vendor delivered the check to an agent who had negotiated the contract for the sale of the land, but who paid no consideration for such delivery. Held, that there had been a valid surrender of the purchaser’s interest in the land, and a cancellation of his check, and that the delivery of the latter to the agent did not make it an existing obligation.</p>

<p>APPEAL from the Circuit Court for Barron County.</p> <p>This action is brought to recover for personal injuries. The evidence showed that the defendant, in August, 1892, was engaged in putting in a system of waterworks in the city of Pice Lake, and in the course of this work was excavating deep trenches and laying waterpipes through the streets. The plaintiff was employed by defendant, July 29, 1892, to calk the pipe in the trenches. One Elder was the superintendent of the work. Plaintiff began his work of calking pipe on the 30th of July, and continued at the work until August 4th. On the last-named day, while plaintiff, with one Simmons, was at work calking pipe in a trench about nine feet in depth, the sides of the trench caved in, and plaintiff was seriously injured. At the conclusion of plaintiff’s evidence a nonsuit was granted, and from judgment thereon plaintiff appeals.</p> <p>They contended, vnter alia, that the risk was not contemplated in the contract of employment. Buswell, Pers. Inj. §§ 207, 208; Baxter v. Boberts, 44 Cal. 187; 111. Gent. B. Go. v. Welch, 52 Ill. 183; Chicago c& 1. B. Go. v. Bussell, 91 id. 298; Boux v. B. & I). L. Go. 85 Mich. 519; Bwoboda v. Ward, 40 id. 420; King v. Ford B. L. Go. 93 id. 172; Booth v. B. c& A. B. Go. 73 N. Y. 38; Pantzar v. Tilly F. 1. M. Go. 99 id. 368; Bumwell v. JDil-worth, 111 Pa. St. 343; Union P. B. Go. v. Fort, 17 Wall. 553; Hough v. T. <& P. B. Go. 100 U. S. 213; Btrahlendorf v. Rosenthal, 30 Wis. 674; Hulehan v. G. B., W. dh St. P. R. Co. 68 id. 520; Kélleher v. M. dh N. R. Go. 80 id. 584. Not being within the contract of employment, to charge plaintiff with having subsequently assumed the risk, it must have appeared that he had actual knowledge of the precise danger of sustaining injury by the caving in of the Avails of the trench. 2 Thomp. Neg. 974, 975; Cook v. St. P., M. dh M. R. Go. 34 Minn. 45; Clapp v. M. & St. L. R. Co. 36 id. 6; Ring v. Ford R. L. Co. 93 Mich. 172; Dorsey v. Phillips dh C. Const. Co. 42 Wis. 583; Hulehan v. G. B., W. <& St. P. R. Co. 68 id. 520; Hadau v. White River L. Co. 76 id. 120. General knowledge of the liability of earth to cave in is not sufficient to charge plaintiff with assumption of the risk. Cook v. St. P., M. dh M. R. Co. 34 Minn. 45; Kearns v. G., If. dh St. P. R. Co. 22 Am. & Eng. Tt. Cas. 287; Dumas v. Stone, 65 Yt. 442; Huddleston v. Lowell M. Shop, 106 Mass. 282; Doyle v. Baird, 6 N. Y. Supp. 517. Having returned to work at the request and upon the assurance of the defendant that there was no danger in continuing to work in the trench, the plaintiff did not assume the risk of being injured. 2 Thomp.'Neg. 1010; Hutohvn-son v. Y., N. dh B. R. Co. 5 Exch. 343; Russell v. M. dh St. L. R. Co. 32 Minn. 230; Cook v. St. P., M. & If. R. Co. 34 id. 45; Keegan v. Kavanaugh, ,62 Mo. 230; Flynn v. K. G., St. J. dh C. B. R. Co. 78 id. 195; Patterson v. P. & C. R. Co. 76 Pa. St. 393. Having returned to work at the request of and relying upon the promise of the defendant to protect the trench, the danger not being imminent and the accident occurring Avithin a reasonable time, plaintiff is not chargeable with assumption of the risk. Cooley, Torts, 661; Hearing, Neg. § 201; Thomp. Neg. 1009; Wharton, Neg. §§ 220, 221; Greene v. M. dh St. L. R. Co. 31 Minn. 248; Roux v. B. de D. L. Co. 85 Mich. 519; Thorpe v. Mo. Pao. R. Co. 89 Mo. 650; Hough v. T. dh P. R. Co. 100 U. S. 213; Stephenson v. Dunoan, 73 Wis. 404.</p> <p>argued, among other things, that the plaintiff assumed the risk, which was as apparent to him as to the defendant. Plaintiff’s testimony shows him to have acquired about as much knowledge of the liability of a bank of earth to cave as could be acquired, and he may well be regarded as an expert in respect to such work. Naylor v. G. dk N. W. R. Go. 53 Wis. 661; Johnson v. Ashland W. Go. 11 id. 51; Paule v. Florence M. Go. 80 id..350; Mulcairns v. Janesville, 61 id. 24; Vin-cennes TF. S. Go. v. White, 124 Ind. 316; Griffin v. Ohio da M. S. Go. id. 326; Swanson v. lafayette, 134 id. 625; Carlson v. Sioux F. W. Go. 59 N. W. Eep. 211; Songstad v. B., C. R. & N. R. Go. 5 Dak. 511; Fairmount O. Asso. v. Davis, 36 Pac. Eep. 911; Olson v. McMullen, 34 Minn. 94; Pederson v. Rushford, 41 id. 289; Larich v. Moies, 28 Atl. Eep.' 661; G., II. <& S. A. R. Go. v. Lempe, 59 Tex. 19; Anderson v. Winston, 31 Fed. Eep. 528; Rasmussen v. G., R. 1. c& P. R. Go. 65 Iowa, 236; Simmons v. O. ds T.. R. Go. 110 Ill. 340; Leonard v. Collins, 10 N. T. 90; Dist. of Columbia v. McElligott, 111 U. S. 621; Brown v. Oregon L. Go. 24 Oreg. 315; Walsh v. St. P. da D. R. Go. 21 Minn. 361; Hughes v. W. da St. P. R. Go. id. 131. Defendant’s promise to get lumber and brace up the walls of the trench after plaintiff should have laid pipe up to the shovelers, does not relieve plaintiff from the assumption of risks involved in working in the trench as it then was. Corcoran v. Milwaukee G. L. Go. 81 Wis. 191; Marsh v. Chichering, 101 N. T. 396; Meador v. L. S. da M. S. R. Go. 31 N. E. Eep. 121; Gowan v. Harley, 56 Fed. Eep. 913-982; Larich v. Moies, 28 Atl. Eep. 661. Assurances of safety by the master and directions to perform the work do not relieve the servant from the assumption of the risks of a situation that is open and obvious. Hoth v. Peters, 55 Wis. 405; Toomey v. Eureka 1. di S. Works, 89 Mich. 249; Reese v. Olark, 146 Pa. St. 465; Bradshaw v. L. d¡ N. R. Go. 21 S. W. Rep. 34-6; 'Wheeler v. Berry, 95 Mich. 250; Lineh v-Sagamore Mfg. Go. 143 Mass. 206; Bussell v. Tillotson, 140 id. 201; Leary v. B. & A. B. Co. 139 id. 580; Kean v. Detroit G. dé B. B. Mills, 66 Mich. 277; Boul v. E. T, V. &■ G. B. Go. 85 Gra. 197; Wormell v. Me. Cent. B. Go. 79 Me. 397; Southern Kan. B. Co. v. Moore, 49 Kan. 616; Johnson-v. Ashland Water Go. 77 Wis. 51.</p>

<p> Municipal corporations: Constitutional law: General or special law? Classification of cities. </p> <p>1. Cities in this state being divided into two classes — those incorporated under special laws and those chartered under the general law,— a statute conferring a new power upon all the cities in the former class is a general law and uniform in its operation throughout the state, within the meaning of sec. 32, art. IV, Const.</p> <p>2. A construction of a statute, not inconsistent with its words, which will support its constitutionality will be preferred to a more natural or obvious construction which would render it invalid. Thus, a statute granting certain powers to “ any city operating under a special charter . . . and authorized by such charter to construct sewers,” may be construed to apply to all cities whose special charters, either expressly or by implication, authorize them to construct sewers.</p> <p>3. All cities of this state acting under special charters, being authorized thereby to repair and keep in order their streets, are “ authorized by such charters to construct sewers,” within the meaning of ch. 224, ' Laws of 1893, since the authority first mentioned carries with it the latter.</p> <p>4. A statute conferring certain powers upon all specially chartered cities which have or shall attain a certain population, is a general law, within the meaning of sec. 32, art. IV, Const, w'here the object to be advanced by it bears such a relation to population as to justify . a classification upon that basis. Ch. 311, Laws of 1893, giving authority to all specially chartered cities having a population of 3,000 or more to issue bonds for the construction of sewers, for the purchase of lands for public parks, and for permanent street improvements, is held a general law and valid.</p>

<p> Railroads: Injury to person at highway crossing: Contributory negligence: Failure to loots. </p> <p>Plaintiff was injured by a passing construction train while attempting to drive across defendant’s track. He was a teamster by trade, and knew the surroundings perfectly, and knew that this train was running át all times. While approaching the track he had looked and had seen no train, but had afterwards stopped for a minute or more behind a building thirty feet distant from the track, which cut off his view in the direction from which this train came, and had then driven towards the track without looking in that direction until he had passed the building twelve or fourteen feet and his horses’ heads were within four or five feet of the track. Held, that he was guilty of contributory negligence.</p>

One McDonough had an option to purchase certain lands belonging to one Mrs. Putnam, for the sum of $3,000. The defendant induced the plaintiff to purchase with him an undivided one-half of the lands. Each was to pay one half of the purchase price thereof, and to hold the same as equal joint owners. The defendant represented to the plaintiff that the price of the lands was $8,000, and that the lands were worth that price.

<p>APPEAL from the Superior Court of Douglas County.</p> <p>[Replevin, commenced in justice’s court. The complaint alleges that the plaintiff is lawfully entitled to the possession of the property, and that the same has been and is unjustly detained by the defendant. The answer is merely a general denial. The plaintiff recovered judgment, and defendant appealed therefrom to the superior court. The property was taken by the officer at the commencement of the action, but upon the appeal neither party gave any undertaking to obtain delivery or return thereof, and it seems to have remained in the possession of the officer. In the superior court there was a judgment for the defendant, from which the plaintiff appeals. The form of the verdict and judgment appear from the opinion.</p> <p>For the appellant it was argued, among other things, that as the plaintiff did not'acquire possession of the property under the statute,- the judgment should have been simply for the return of the property, with costs and damages. S. & B. Ann. Stats, sec. 2888.</p> <p>For the respondent it was contended, inter alia, that as the answer was a general denial and did not claim return of the property, the defendant might waive return and take judgment for the value. The case does not come within the provisions of sec. 2888, S. & B. Ann. Stats., because the property was not delivered to the plaintiff but remained in the hands of the officer, and because the defendant did not claim a return. Judgment must be rendered, therefore, in accordance with the provisions prior to the enactment of that section. Farmers’ L. & T. Co. v. Comm. Banlc, 15 Wis. 441-2; Draft v. Donovan, 10 id. 385; Klcety v. Delies, 45 id. 490. Under Terr. Stats, of 1839, p. 215, sec. 32, and B. S. 1849, ch. 119, sec. 33, the judgment was properly entered for the value.</p>

<p> Street railways: Negligence: Collision with carriage: Contributory negligence: Court and jury: Instructions. </p> <p>1. Plaintiff was injured, while attempting to cross defendant’s street railway tracks, by the collision of an electric car with the phaeton in which she was riding. Upon the evidence (stated in the opinion) it is held that the questions of defendant’s negligence and of plaintiff’s contributory negligence were for the jury.</p> <p>2. An instruction that “although plaintiff might not have'exercised ordinary care in turning upon the track, still if the motorman saw her so in danger and unconscious of peril, and thereupon failed to. exercise ordinary care to avoid the collision, and such want of ordinary care was the proximate cause of the injury, plaintiff should recover,” is criticised.</p> <p>3. An instruction that if the jury concluded that a witness had testified falsely as to any material fact they might disregard all of his testimony unless it was supported by other evidence, was erroneous, since it authorized the jury to disregard the uncorroborated testimony of a witness if they concluded that he had, even through inadvertence or mistake, sworn falsely as to any material fact.</p> <p>4. An instruction that “there is, when a witness is testifying, an- undefinable something that rings of truth, that in spite of and in the face of everything” the jury “have a right and should give heed to,” was erroneous as being an invasion of the province of the jury; and the error was not cured by a further instruction that the verdict must be based upon the evidence given in the case, and upon nothing else.</p>

<p>APPEAL from the Superior Court of Dotujlas County.</p> <p>This action was brought by the plaintiff to recover the damages sustained by him while in the employ of the defendant, alleged to have been caused by its negligence. The defendant owned and operated the American Steel Large Works at Superior, for building the vessels known .as “Whalebacks; ” and at the time of the injury of which the plaintiff complained, June 28, 1892, he was in defend.ant’s employ as a riveter in and about its works. In his said employment it was the plaintiff’s duty to go upon an ■ elevated scaffold or platform on and along the side of a ■ certain whaleback to work as a riveter thereon; and it is .alleged that it was the defendant’s duty to procure and furnish, for the use of the plaintiff, a good, safe, and secure scaffold upon which to stand while so at work; that the defendant, by two persons employed by it to erect and ■.suspend said scaffold and put it in order, performed said ■work in a negligent, unskilful, and unsafe manner, of which the defendant had"notice, but its unsafe and dangerous condition was unknown to the plaintiff, and the defendant negligently omitted to warn the plaintiff- thereof; that while the plaintiff was' on the ssiid scaffold in his said employment, by reason of its unsafe and dangerous condition it tipped up to one side, without fault on his part, whereby the plaintiff was thrown from the same down to the dock, a distance of twenty feet, and severely injured, to his damage, etc. The defendant denied the alleged negligence, and that it provided or furnished any unsafe, defective, or insufficient scaffolding, or that the plaintiff was injured thereby, and alleged that he was injured by and through his own fault and negligence.</p> <p>Upon a trial before the court and a jury, a special verdict was found: (1) That the plaintiff in June, 1892, while in the employ of the defendant, fell from'a suspended scaffold and received injuries. (2) That there was a crew of men employed by defendant whose exclusive, duty it was to construct or place scaffolding where and when called upon by the workmen employed in building-barges. (3) That it was the custom and understanding that the scaffold builders should receive no suggestions, directions, or assistance as to and in constructing or placing in position the scaffolds, but should themselves, without interference or assistance from the workers calling for the scaffolds, construct and place the same. (4) That in the present case the plaintiff did not erect or assist as to placing or adjusting the scaffold from which he fell. (5) That the persons who placed the scaffold in position did not exercise ordinary care in so doing. (6) That the scaffold, as left by those who placed it, was not in a position reasonably safe for the purposes for which it -was to be used. (7) That the plaintiff did not know, and in the exercise of ordinary care would not have known, of the unsafe character of the scaffold before his fall and in season to avoid the danger. (8) After the plaintiff got on the scaffold, he exercised ordinary care for his own safety. (9) Scaffolds and appliances of the kind of the one in question were not in general use in the defendant’s yards for a lengtjj of time prior to the accident. (10) They were not used for a length of time for the convenience of the riveters. Plaintiff’s compensation for the injury was fixed at $3,250.</p> <p>The court made findings of facts on certain other questions from the evidence, by consent of the parties, in substance that IVIongela and Johnson, employees of defendant and members of scaffold building crews, were the cnty persons who aided or directed in building or erecting and suspending the scaffold in question; that the want of ordinary care on their part in building, erecting, and suspending the scaffold was the proximate cause of plaintiff’s injuries; and that, the defendant retained supervision over the building and erecting and suspending the scaffold in question, and over the men who erected the same.</p> <p>Judgment was given in favor of the plaintiff and against the defendant for said $3,250 and costs, from which the latter appealed. Such other facts as are material are stated in the opinion.</p> <p>They contended, inter alia, that there is no evidence that the defendant retained any supervision whatever over the erection or placing in position of this scaffold. No person other than the one for whose use the scaffold was erected had or exercised any authority as to the erection of the scaffold, or placing the same in position. The negligence of the scaffold builders in such a case is that of a fellow-servant, for which the master is not liable. Besehel v. G., M. db St. P. R. Go. 62 Wis. 338; Armour v. Hahn, 111 U. S. 313; Johnson v. Ash-land IF. Go. 77 Wis. 51; Webber v. Piper, 109 N. Y. 496; Dwyer v. Am. Exp. Go. 32 Wis. 307; Ling v. St. P., M. & M. R. Co. 50 Minn. 160; Kelley v. Noreross, 121 Mass. 508; Porter v. Silver C. do M. C. Co. S4 "Wis. 418; Killea v. Faxon, 125 Mass. 485; Buswell, Pers. Inj. § 217, and cases cited; Butler v. Townsend, 126 ET. Y. 105; Burns v. Bennett, 99 Cal. 363. The mere fact that the scaffold builders were negligent in allowing’ the scaffold to tip outward when suspended, is not sufficient to charge the defendant Avith negligence in the employment of the scaffold builders. Goober v. M. <& P. du C. R. Co. 23 Wis. 668; Baulee v. N. V. da II. R. Go. 59 TT. Y. 356; Bailey, Master’s Liability, 55 et seq. The danger attending the tipping of the scaffold outward Avhile the inner edge rests upon an oval surface arises from the ordinary operation of familiar laivs of gravitation; and the plaintiff in this case, in view of the experience he had had, must be presumed to be acquainted with such laws. If he failed to observe the operation of these laws, the risk Avas his own and not that of defendant. Walsh v. St. P. do I). R. Co. 27 Minn. 367; Keene v. Detroit C. do B. R. Mills, 66 Mich. 277; Melzer v. Peninsular Car Co. 76 id. 94; Sweet, v. Ohio G. Co. 78 Wis. 127; Ilobbs v. Stauer, 62 id. 108; Baylor v. G. dó N. ITT R. Go. 53 id. 661; Goltz v. M., L. S. <& W. R. Co. 76 id. 136; Peffer v. Cutler, 83 id. 281; Nixon v. Selby S. da L. Co. 102 Oal. 458.</p> <p>They argued, among other things, that where it has become the custom and practice of defendant to erect scaffolds for its riveters, and a contract is made with that custom in view, and defendant undertakes to erect a scaffold by a separate creAv over Avhicli it retains supervision, and Avhose excliisWe duty it is to snspend scaffolds, a riveter is not a fellow-servant with the scaffold builders. Sims v. Am. 8. B. Co. 57 Tí. W. Rep. 322; Conner v. Pioneer F. P. Const. Co. 29 Fed. Rep. 629; Brab-bits v. G. do N. W. R. Co. 38 Wis. 289; Johnson v. First Nat. Bank, 79 id. 414; Van den Ileuvel v. Nat. F. Co. 84 id. 636; Bessex v. C. c§ N. W. R. Co. 45 id. 477; Ilulehan v. G. B., IF & St. P. JR. Co. 68 id. 520; Phillips v. C., M. efe St. P. R. Co. 64 id. 475; Heine v. C. efe N. TF. R. Co. 58 id. 531; McClarney v. C., M. c& St. P. R. Co. 80 id. 278; Pwyer vJ Am. Exp.- Co. 82 id. 307; Shultz v. C., M. <& St. P. R. Co. 40 id. 589; Smith v. C., M. c& St. P. R. Co. 42 id. 520; 1 Shearm. & Redf. Reg. § 205; Behm v. Armour, 58 Wis. !;■ Benzing v. Steinway, 101 R. Y. 547; Smith v. Peninsular-Car Works, 60 Mich. 501; Arlterson v. Dennison, 117 Mass. 408; Sherman v. Menominee R. L. Co. 72 Wis. 122; Laning v. N..Y C.R. Co. 49 R. Y. 521; 7 Am. & Eng. Ency. of Law, 830; Fuller v. Jewett, 80 R. Y. 46; Kirkpatrick v. N. Y. C. cfc H. R. R. Co. 79 id. 240; Creen v. Banta, 48-R. Y. Super. Ct. 156; Kain v. Smith, S9 R. Y. 375; Devlin v. Smith, id. 470; Manning v. Hogan, 78 id. 615; Mtdchey v. Methodist R. Soo. 125 Mass. 4S7; Ptilintan P. C. Co. v. Baack, 143 Ill. 242; Northern Pac. R. Co. v. Charless, 51 Fed. Rep. 562; Denning v. Gould, 157 Mass. 563; McLean v. Standard O. Co. 21 R. Y. Supp. 874; Ernst v. Brown LI. <& C. Co. 24 id. 359; Cougle v. McKee, 151 Pa. St. 602; Foster v. Mo. Pac. R. Co. 115 Mo. 165; Haworth v~ Seevers Mfg. Co. 51 R. W. Re]). 68; Kelly v. Erie T. & T. Co. 34 Minn. 321; Heckman v. Mackey, 35 Fed. Rep. 353. Plaintiff had a right to assume that the scaffold was safe, especially after being told so, and he did not know its unsafeness. He had a right to assume that it was fastened with a proper lateral support in such a manner that it would not give way. From where he stood he could not tell whether it rested against the oval or perpendicular surface of the boat. The assumption of the risk was a question for the jury. Bessex v. C. & N. W. R. Co. 45 Wis. 477 Cole v. C. & N. IF. JR. Go. 67 id. 272; Clapp v. M. <& St. Lj. R. Co. 36 Minn. 6; Piette v. Bavarian B. Co. 91 Mich. 605; 14 Am. & Eng. Ency. of Law, 854; Shultz v. C., M. <S¡ St. P. R. Co. 40 Wis. 589; Diiberner v. C., M. St. P. R. Co AT id. 138; Northern Pao. P. Co. v. Herbert, 116 U. S. 642;. Kellogg v. C. do N. W. E. Co. 26 Wis. 223; Grannis v. G St. P. í& K. C. E. Co. 81 Iowa, 444; Johibson v. First Nat. BanJc, 19 Wis. 414; Flledge v. N. C. & O. E. Co. 100 Cal.. 282; Nixon v. Selby S. <& I. Co. 102 id. 458.</p>

<p>APPEAL from the Circuit Court for Polls County.</p> <p>This action is to recover for personal injuries. The defendant’s railroad runs due east and west through the village of Amery. A side track extends parallel with the main track and a few feet distant therefrom nearly the entire distance through the village. A street named Keller avenue extends up to the right of way from the north, at right angles with the right of way and track. From the end of this street a licensed way exists across both tracks and right of way to the south. The depot and passenger platform are just west of this licensed way. The accident happened in the daylight on the' morning of May 1, 1888, and the plaintiff wras nearly sixteen years of age. A gravel train had just come in from the east and stopped on the side track near the depot. The plaintiff had been waiting for this train, and got onto it, intending to ride to Dresser Junction, a station west of Amery. While he wras on the gravel train a freight train came in from the west on the main track, and stopped, the engine being near the depot. The plaintiff saw it. He had been much around railroad trains and depots. Just after it came in the conductor or brakeman'put bina off the gravel train. He got off on the north side, next the main track, and stepped over with one foot on the main track, about fifteen or twenty feet in front of the freight engine, and, as he claims, on the aforesaid licensed way, having an angry altercation with the man who put him off the train. He stood with his back to the freight engine. While he was so standing the fireman of the freight engine, during the temporary absence of the engineer, moved the engine forward a short distance, and ran over plaintiff’s foot, making amputation necessary.</p> <p>The foregoing facts are either undisputed or taken from the plaintiff’s own evidence. There was evidence that no signals were given. On the part of the defendant there was evidence that plaintiff was not on the licensed way, but at a point considerably east thereof, on the right of way.</p> <p>The jury found a special verdict in substance as follows: (1) That no signal was given before the moving of the freight engine; (2) that a licensed way existed across the right of way, being a continuation of Heller avenue; (3) that plaintiff was injured within the limits of this licensed way; (4) that the fireman who moved the freight engine had reasonable ground to expect that a person might probably be on the track where plaintiff was, when he moved the engine; (5) that he did not exercise ordinary care when he moved the engine; (6) that his want of ordinary care was the proximate cause of the injury; (7) that plaintiff was not guilty of contributory negligence; (8) that plaintiff’s damages were $4,000. Á motion to set aside •the verdict and for a new trial was overruled by the court, and from judgment for the plaintiff the defendant appealed.</p> <p>They argued, among other things, that the plaintiff’s negligence conclusively appears from his own showing. Delaney v. M. dé St. P. P. Go. 33 Wis. 67; Nicholson v. Erie P. Go. 41 N. T. 524; Pailroad, Go. v. Depew, 40 Ohio • St. 121; Bryson v. G., B. dé Q. P. Go. 57 N. W. Eep. 430; 111. Gent. P. Go. v. Pall, 72 Ill. 222; Goldstein v. G., M dé St. P. P. Co. 46 Wis. 404; Haas v. G. de P. W. P. Go. 41 id. 44; Pandall v. P. W. Tel. Go. 54 id. 149; Williams v. G., M. dé St. P. P. Go. 64 id. 1.</p> <p>They contended, inter alia, that the party who last had an opportunity to avoid the injury, notwithstanding the negligence of the other,. is alone liable for it. Shearm. & Eedf. Neg. §§ 61 and note 1 (p. 86); 99, 483 and note 1 (p. 295), 484; Bostwiclc v. M. dé P. P. Go. 2 N. Dak. •440; 2 Thomp. Neg. 1157, note 1;, P. Go. v. Eassen, 34 Cent. L. J. 364; Glampii v. O., St. P. dé K. C. P. Go. 84 Iowa, 7i; Guenther v. St. L., I. M. dé S. P. Go. 95 Mo. 286; Gates v. B., G. P. dé M. P. Go. 39 Iowa, 45; Chicago, B. da Q. P. Co. v. Wymore, 58 N. W. Eep. 1120; Chicago, B. dé Q. P. Go. v. Wilgus, id. 1125; Git. St. P. Go. v. Steen, 42 Ark. 321; Pieles v. Pacific P. Go. 64 Mo. 436; Scoville v. P. daSt.J. P. Co. 81 id. 434; Welsh v. Jackson Co. P. P. Go. id. 471; Cadmus v. St. B.B. di T. Co. 15 Mo. App. 86; Eckert v..St. L., 1. M. dé S. P. Go. 13 id. 352; Werner v. Git. P. Go. 81 Mo. 368; Whart. Neg. (2d ed.), § 343; Davis v. O. dé P. W. P. Go. 58 Wis. 649, 650.</p>

The plaintiff brought her action in justice’s court against the defendants, Julius Bartz and David Green, for trespass on her freehold in Pulton, Rock county, lying on and along the east side of the public highway, in breaking down and removing a certain gate thereon between her lands and the-lands of her husband immediately adjoining on the south, and lying on and along said highway.

<p> Wlowage of land: Pleading: Action at common law or under mill-dam act? </p> <p>1. The complaint in this action, stating facts sufficient to constitute a cause of action in tort, at common law, for the flowing of plaintiff’s lands by water set back upon them by defendants’ dam, but not sufficient to constitute a cause of action under the mill-dam law, is held on demurrer to have been intended to plead the former cause of action, although many of the facts stated are not material thereto and some of them'seem to evince a purpose to state a cause of action under the mill-dam law.</p> <p>A. The use of the word “ wrongful ” was not necessary to a statement of the cause of action in tort.</p>

<p> Injury from, defective sidewalk: Notice to village. </p> <p>A notice that plaintiff was injured “ while walking home on the sidewalk on Madison street, opposite the Moravian church, owing to a defective sidewalk,” is not sufficient under sec. 1339, R. S., since it •wholly fails to describe the alleged defect.</p>

<p> Municipal corporations: Injuries from defective sidewalk: Liability of lot owner: Joinder of parties: Appealable order. </p> <p>1. A lot owner is not liable for injuries resulting from mere defects in the sidewalk in front of his lot, unless made so liable by statute.</p> <p>2. A village charter providing that in certain cases the trustees should require lot owners to build or repair sidewalks, and if the latter failed to do so should have power to cause the work to be done at the expense of the lots, and ordinances passed in pursuance thereof, did not render a lot Owner liable for an injury caused by a defect in the sidewalk which he was by such ordinances required to repair.</p> <p>3. Sec. 1, cb. 471, Laws of 1889 (sec. 1339b, S. & B. Ann. Stats.),— providing that the person by whose wrong, default, or negligence a defect in the highway is caused shall be primarily liable for injuries happ'ening by reason of such defect,— was not intended to create any liability or give any new right of action, but .merely to regulate the remedy for rights of action otherwise created.</p> <p>[4. Whether, under ch. 471, Laws of 1889, where a lot owner or other person is primarily liable for an injury resulting from a defect in the highway, the plaintiff can be.compelled to make him a defendant in an action for such injury against the municipality, not determined.]</p> <p>5. An order striking a cause from the calendar because of plaintiff’s failure to bring in as a defendant a third person whom the defendant alleged to be primarily liable, is appealable.</p>

<p>(1) Fraudulent conveyances: Relationship of the parties. (2, 3) Appeal: Exceptions. (4) Replevin: Judgment.</p> <p>1. Relationship of the parties to a transfer of property alleged to be fraudulent as to creditors is not a badge of fraud, but is simply a circumstance which, when shown, calls for closer scrutiny and clearer explanation of the transaction.</p> <p>2. An exception to the whole of a sentence in an instruction to the jury is held sufficient, although a part of the sentence would have been correct if standing alone, where such part depended upon, and was manifestly intended to be considered in direct connection with, the other part, which was erroneous.</p> <p>3. A bill of exceptions, properly certified, is conclusive upon this court that an exception contained therein was duly taken.</p> <p>4. Where property replevied from a sheriff exceeds in value the amount of the execution under which it was taken, and the plaintiff is the owner of the property except as against the execution creditor, the alternative judgment for the defendant, in case a return of the property cannot be had, should be for the amount of his special interest only.</p>

<p>APPEAL from the Circuit Court for Rock County.</p> <p>This action was brought by the plaintiff, as administrator of his deceased minor son, John Luebke, to recover damages sustained b the plaintiff by reason of the death of the said John Luebke, caused, as it is alleged, by the negligence of the defendant when he was in its employ; and the plaintiff obtained a verdict and judgment, from which the defendant appealed.</p> <p>The defendant owned and operated a foundry and machine shop situated on and partly over a mill race along Bock river, at Beloit. From a platform of the building a foot bridge extended across the race to the east side of it, and it was used by those who had charge of the power to go to and from the shop and foundry to the power house on the east side of the race. The bridge consisted of three lengths of planks, supported by piles driven in the race and cross pieces 2x4 or 2x6 spiked to the piles; and at the east end and in the middle it was two planks in width, buc at the west end next to the shop and foundry there was but one plank, about ten inches wide, fastened at the west end about ten inches below the platform. The planks were two inches thick, and at the east end rested on the bank of the race about one foot above the general level, and there was no railing along the bridge. The core room of the foundry, in which the plaintiff’s intestate, with other boys employed by the defendant, worked under a foreman, making cores for castings, was about 160 feet south or below the bridge, and they required and used considerable flour in making them, which they obtained at a flour mill on the opposite or east side of the race, about 100 feet above the east end of the bridge. There was was a wagon bridge a short distance below and south of the core room, which was wide and safe, available to and sometimes used by the boys for getting flour from the mill. The evidence tends to show that they were never directed to go any particular way to get flour or use the foot bridge, but went either way as they chose; that the defendant knew of and permitted the use of the foot bridge by the boys for that purpose-; and that the wheelbarrow they used was an old _ rickety one, and not a safe appliance for the purpose of bringing flour over the foot bridge. When the boys used the foot bridge to get flour, they passed from the core room into the foundry, thence into the machine shop, and thence to the door opposite the foot bridge, and out upon a platform upon and over the foot bridge to the flour mill. When they went over the wagon bridge below, they passed from the core room into the foundry, thence into the room next the core room in the front of the foundry, opening upon the street, and thence across the wagon or highway bridge over the race and along the highway up to the mill. In returning with a load of flour, they ran the wheelbarrow up a single plank upon the foot bridge; but at the west end of it, next the shop, where there was but a single plank, some one was required to lift the barrow up on the platform. It was claimed on the part of the plaintiff, and there was evidence tending to support it, that the bridge was not a reasonably safe passageway for use by the boys in bringing flour from the mill to the foundry, more particularly by reason of the manner of its construction and narrowness and want of railing, and that the wheelbarrow was not a safe vehicle for bringing flour, but was old and rickety, and its use for that purpose was unsafe.</p> <p>The plaintiff’s intestate, about the 15th of September, 1892, of the age of nearly sixteen years, had been in defendant’s employ for several months from time to time, and then was, and had been since the previous June, at work in the core room, and it was his duty to make cores, attend to the fires, and go after flour, etc. On the day in question he went over to the mill with the wheelbarrow to get flour. It does not appear that he had been specially directed to do so, and no one seems to have seen him until he reached the mill and asked for flour. The miller put a bag of flour on the barrow, and asked him “ which way he was going with the flour; if he was going over by the wagon bridge or the foot bridge. He answered he would go by the foot bridge, and I advised him, I told him it was better he would go around by the wagon bridge. He said if he would dump the flour in he would come back and get another sack; that is all that was said. He went on, and I went into the mill.” It does not appear that he was afterwards seen alive. The alarm was given that some one was in the race, and he was taken out dead on the east side thereof. The barrow was nearer the east side than the west side of the race, and the evidence tended to show that he must have fallen in about the middle of the foot bridge.</p> <p>The plaintiff claimed that the bridge across which the boys were required, or accustomed with the knowledge of the defendant, to bring flour in the wheelbarrow, was dangerous and unsafe by reason of improper and negligent construction, and .was an unsafe place for passage by one so young as the deceased; and that the wheelbarrow with ■which he was furnished was an unsafe and insufficient appliance, as the defendant well knew; and that the defendant negligently omitted to inform or caution the deceased in respect to the use of said bridge and barrow, as it should have done; and that by reason of the premises, and on account of the defendant’s said negligence, the said John Luebke tripped, lost his footing and balance, and fell and was thrown into the race, and lost his life by drowning. He left, surviving him, his father, the plaintiff, and his mother, each aged about fifty-five years and dependent in part on his services.</p> <p>The more material allegations of the complaint were denied by the defendant, and it was claimed, among other things, that the said John Luebke was guilty of contributory negligence in using said bridge and wheelbarrow; that he was of sufficient age, intelligence, and discretion to comprehend the dangers in question to which he was exposed, and that he had knowledge of the same and assumed the risk thereof; that the defects in the foot bridge and wheelbarrow were open and apparent defects.</p> <p>There was evidence tending to support the various contentions of the parties, and the court, on the part of the defendant, was asked to instruct the jury, among other things, in substance, that “ in determining whether the boy was of sufficient age, understanding, and experience to comprehend the dangers to which the use of the bridge for carrying flour as he carried it on his last trip exposed him, you are to consider his age and opportunities which he had to observe the apparent danger of wheeling a barrel of flour across the mill race upon the foot bridge, and to determine from all the facts and circumstances surrounding his death whether or not he was of such an age and understanding that, even though, he may not have fully apprehended it, yet that the danger was so open and apparent, if you find it to be so, that a boy of his age, experience, and understanding ought to have known it and ought not to have exposed himself to it.” But the court refused to so charge. Other like instructions on this point were asked and refused. The court instructed the jury on the question of contributory negligence and on the question of assumed risk, to portions of which exceptions were taken, in substance, that “ a servant rqust exercise ordinary care for his personal safety in any employment. He must make a reasonable use of his senses to avoid injury to himself in jthe course of his employment; and if he fails to do so, and in consequence of such failure he is injured, he cannot recover damages of his master. An employer is not liable for an injury sustained by an employee where his own negligence or want of ordinary care contributes materially to the injury. ... A servant, on entering a service, accepts and assumes the ordinary hazards and dangers of his occupation,— such as are incident to it; and for an injury sustained through such danger he cannot recover. It is the duty of the employee, without warning, to observe due care, and any omission to do this is at his own peril. . . . If an employee, from youth, inexperience, ignorance, or want of general capacity, may fail to appreciate the danger of an employment, it is a breach of duty on the part of the master to expose such a servant, even with his own consent, to such dangers, unless he first gives him such instructions or cautions as will enable him to comprehend them and do his duty. . . . The question on this branch of the case is not of dxie cwre on the part of the plaintiff,, Tout whether the cause of the ingnry was one of which he knowingly assumed the risk, or one of which, by reason of his youth and consequent incapacity to understand and appreciate its dangerous character, or the neglect of the defendant to take due precautions to effectually inform him thereof, the defendant is bound to indemnify him for the consequences.”</p> <p>The jury found a general verdict for the plaintiff, assessing his damages at $1,800, and also a special verdict finding, among other things, that the officers and agents of the defendant knew that the foot bridge was insufficient and dangerous for use, but did not inform the boy of such danger; that before attempting to cross the foot bridge at the time in question he was warned or cautioned by Mr. ITaase, the miller, to go around another way; -that he was not aware of the fact that it was dangerous to attempt to cross the bridge with a wheelbarrow loaded with flour, prior to his said attempt; that he did not knowingly take upon himself the risk of accident in crossing the foot bridge at the time in question; that the wheelbarrow was not in a reasonably safe condition for the use to which it was put; that the boy was in the exercise of ordinary care at the time he fell from the foot bridge and was drowned; and that he was not fully aware of the danger he was subjecting himself to in crossing the race on the bridge with a wheelbarrow loaded with flour. A motion for a new trial, on the ground, among others, that the verdict was contrary to law and contrary to the evidence, was denied.</p>

The principal defendant, John Arquette, did work and labor, and rendered other services, in and about the erection of a dwelling house for one Mary Mulhall, at day wages. Schaller & McKey furnished lumber to Mrs. Mul-lí all for the building. There became due to Arquette, for wages, $347.70. There became due to Schaller ds McKey, for lumber, $350.77. Both parties wished insurance on the building to secure their claims.

<p> Gourt and jury: Credibility of tbitnesses: Instructions. </p> <p>1. Where much of the testimony in an action was in direct conflict, and plaintiff’s own testimony conflicted with that given by him on former trials, it was error to charge the jury: “ It is your duty to reconcile the testimony, if it is possible, on the theory that every witness has intended to testify truly in the case. The law does not presume, and will not presume, that any witness testified 'falsely. Therefore, if it is possible for you to reconcile the evidence onthd-theory that any witness is mistaken either in regard to time or any other fact important to be established in 'this case, it is your duty to do it. It is better to assume that the witness has made a mistake than to assume he has lied.”</p> <p>S. On the last trial plaintiff was asked, on cross-examination, whether he did or did not, on the former trials, swear as stated in the questions. To some of these questions he answered that he had testified as stated, but that his testimony was untrue. To many of the questions, however, he answered that he could not remember. Held, that it was error to charge the jury that “when a witness is asked if he did not testify so and so before, he will generally say that he don’t remember, — and I think it is almost impossible for; witnesses to remember what they have testified to; but they may say: T don’t know. I tried to testify according to the fact then, and I am trying to do it now.’ A -witness can remember the transaction better than he can remember what he testified about it before. ... In the excitement of a trial, in the rapidity with which questions are put and are compelled to be answered, a witness will sometimes perhaps not half understand the question, and he will answer accordingly, so as to put himself in a false position,” etc.</p>

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

This action originated in justice’s court, plaintiff claiming •that the defendant had purchased of him a quantity of belting, agreeing to pay therefor the sum of $5, which he had refused to pay, and to recover which he brought suit.

. The facts are stated in the opinion. to the point that the “homestead estate” cannot be partitioned, and the' legislature never contemplated a partition thereof, cited sec. 21, ch. 72, R. S. 1849; ch. 187, Laws of 1858; secs. 3954, 3121, 3135, R. S.; Keyes r. Kill, 30 Yt. 767; Moff-man, v. Neulums, 30 Tex. 636; Doane v. Doane, 33 Yt. 652; Nicholas v. P-urczell, 21 Iowa, 265; Dodds v. ' Dodds, 26-id. 311.

<p>APPEAL from the Circuit Court for Dodge County.</p> <p>The action was upon a promissory note given by the defendants to the plaintiff. The defense was that the note was obtained by the plaintiff from the defendants by means of fraud and duress.</p> <p>The trial was before a jury. The evidence in support of the defense tended to show that the plaintiff and his wife brought an action against the defendant William Christian for false imprisonment and malicious prosecution, laying1 their damages at the sum of $20,000; that they procured a warrant of arrest in said action, from a court commissioner of Milwaukee county, for the arrest of said William Christian, with directions to arrest and hold him to bail in the sum of $10,000; that such warrant was placed in the' hands of the. sheriff of Dodge county, where the said Christian resides, with instructions to arrest and take him to the city of Milwaukee by the early morning train on January 23, 1893; that said sheriff did arrest him at 3 o’clock in the morning of that day, and took him to the city of Milwaukee by an early train, a long distance from his home and away from his friends, depriving him of an opportunity to consult his friends or to give bail, which he was perfectly able there to do; that at Milwaukee he was taken at once to the office of the plaintiff’s attorney in that action, where the plaintiff and his attorney both were; that they refused sufficient bail, which was offered, and refused to give him an opportunity to get other bail, but kept insisting that he should either settle or go to jail; that defendant was made to believe that there was no other way for him to avoid going to jail except to settle; so he settled, and gave the note in suit. Much of this was denied by the plaintiff and his witnesses.</p> <p>The court directed a verdict for the plaintiff for the amount of the note. From judgment on the verdict the defendants appeal.</p> <p>argued, among other things, that the note was extorted by duress of imprisonment. Brown v. Peck, 2 Wis. 261; Heck-mam, v. Swamtz, 64 id. 48; Schultz v. Culbertson, 49 id. 122;. Bichardson v. Duncan, 3 N. H. 508; Severance v. Kimball^ 8 id. 386; Morse v. Woodworth, 155 Mass. 233; /Schultz v. Oatlin, 78 Wis. 611; Magoon v. Beber, 76 id. 392. Duress is a question of fact for the jury. Schultz v. Culbertson, 46-Wis. 316; Cribbs v. Sowle, 87 Mich. 340; Osborn v. Bobbins,. 36 N. T. 374.</p>

<p>APPEAL from the Circuit Court for Wauhesha County.</p> <p>The complaint alleges, in effect, that the plaintiff is an unmarried female, of the age of eighteen years; that one Armin had been appointed her guardian, and qualified as such; that September 29, 1893, the defendant Oleary, acting for and under the direction of the defendant Kelly, maliciously and without any probable cause made a complaint on oath before Justice Evans, charging the plaintiff, in effect, with having committed the offense defined in sec. 44385, S. & R. Ann. Stats, (ch. 251, Laws 1889), and maliciously and without probable cause procured the said justice to issue a warrant upon said complaint for the arrest of the plaintiff upon said false charge; that said warrant was duly issued thereon, and the plaintiff arrested and brought before said justice, whereupon the complaint was read to her, and she was then and there, in effect, told that she was arrested for the offense mentioned; that having but very little education, and being greatly terrified and excited, and not understanding the meaning of what was so read and said, except that she was under arrest for not paying for her board, and was indebted to Kelly therefor, she thereupon admitted that fact to the justice; that the justice thereupon sentenced her to pay a fine and the costs, or be committed to jail for ten days; that, not being able to pay the fine and costs, she was committed for the term mentioned; that, at the time, Kelly held her trunk and clothing therein, of the value of $13, as security for the bill she owed him; and that Kelly knew said property in his hands was good and ample security for said bill, but that he concealed that fact from the justice.</p> <p>To that complaint the defendants demurred on the ground that it did not state facts sufficient to constitute a cause of action. Erom the order overruling that demurrer the defendants appeal.</p> <p>They contended, inter alia, that the 'rale that the prosecution must have terminated in favor of the plaintiff is not applicable where the accused had no opportunity to defend. 14 Am. & Eng. Ency. of Law, 29. Mor if the action terminated in conviction procured by fraud or perjury of defendant. Palmer v. Avery, 41 Barb. 290; Burt v. Plaee, 4 Wend. 591; Witham v. Gowen, 14 Me. 362; Paysonv. Gaswell, 22 id. 212; Newell, Mal. Pros. 284, 296-299; Cooley, Torts, 185.</p>

This is an action for breach of a contract to convey certain real estate and personal property. The complaint alleges that the plaintiff and the defendant Michael Woll-ner and his wife made a written agreement, April 8, 1892, a copy of which is attached to the complaint.

Tbe plaintiff sued to recover a balance of $410 alleged to be due him from the defendant for services rendered to her as a physician and surgeon, and also for $69.50 for moneys had and received by the defendant to his use.

This is an action brought in the circuit court to recover the forfeiture provided by sec. 1, ch. 881, Laws of 1889, on the claim that the defendant had intentionally made a false statement to the board of review of his assessment district, for the purpose of avoiding his just share of taxes. The statute under which the action was brought is as follows: “ Section 1.

Action to recover the penalty for failure to remove an encroachment upon a public highway. The appeal is from st judgment entered, upon a verdict directed bjr the court in favor of the defendant.

This action was commenced in a justice’s court, and the plaintiffs made therein an oral complaint to the effect that June 7, 1892, the plaintiffs sold and delivered to the defendant, at his instance, one Stark force-drop corn planter, of the value and for the agreed price of $45, which corn planter the defendant received and used and continued to keep, but had never paid for any part of it though several times demanded; and demanded judgment for the amount named, with costs.

This is an action of ejectment tried by the court. The evidence showed that prior to February 14, 1850, one Curtis Mann held the title in fee to a quarter section of land, a part of which is in controversy in this action. On the last-named date he deeded the entire property to one John P. Wood, who was then living in Hartford, N. Y., and who died in September, 1864, still holding the paper title to said lands. The plaintiffs in this action are his widow and heirs at law.

<p>Wood v. Armour, ante, p. 488, followed.</p>

This is an action for the specific performance of an oral .agreement alleged to have been made May 1,1883, by which the defendant John M. BosPwiok, the owner of the premises in question, agreed to sell and convey the same to the plaintiff for the sum of $150, which was to be paid when the said BosiioicZe would deliver to the plaintiff a warranty -deed of the premises, and that the plaintiff should enter, .as he did, into immediate possession, and has ever since held the same…

The plaintiff is the publisher of a newspaper in the defendant county. He published the county clerk’s tax redemption notice for the year 1892. In the same year he published the general election notice and the notice for information of voters required by ch. 379, Laws of 1891.

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

Information for fraudulently receiving deposits in a bank, under sec. 4541, R. S. The principal facts are stated in the opinion.

Action to annul the existence of a corporation, under sec. 3241, E. S. The defendant appears to have been incorporated July 7, 1893; and its original articles of organization and incorporation were amended December 8, 1893, so as to contain, among other things, in substance and effect, the duties and salaries of each and every of the several officers, directors, and agents of the company; that the business of said corporation shall be to encourage frugality and economy in…

This is an action to recover for personal injuries. The defendant operates a railroad track on what is known as Connor’s Point, near the city of Superior. This track runs northwest and southeast, parallel with the southwest shore of Superior bay. The right of way on which defendant’s track runs is twenty-five feet wide, and the northeast line thereof is about fifty feet from the shore line of the bay.

This is an action for damagés for a personal injury. The plaintiff was an employee of Butler Bros., contractors and builders, acting as foreman of a gang of laborers who were engaged in unloading, from cars on defendant’s track, bricks and other building materials for Butler Bros. The cars, while being unloaded, stood upon a spur track.

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

This action was brought to recover against the defendant, as indorser, the amount of four checks drawn on the Commercial Bank of Milwaukee by one Musselman, in favor of divers persons, and which' had been indorsed to the defendant, who on the 17th of July, 1893, sold and indorsed them to the plaintiff. They were indorsed and delivered to the plaintiff’s father at Dousman, Waukesha county, Wis., who at once mailed them to the plaintiff at New Richmond, Wis.

This is an action to recover for surgical services and medical attendance by the plaintiff upon an employee of the defendant. One of the defendant’s employees, named' Malcomson, met with an accident by which, his ankle was-fractured. The plaintiff was called to his assistance by parties not connected with the defendant. The plaintiff set the ankle, and gave such other assistance and attention .as was necessary.

This is an action for an assault and battery committed on the plaintiff by the defendant September 30, 1892. The answer is a general denial. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at the sum of $3,250.

This is an action in equity to prevent the threatened removal of plaintiff’s fences and the taking of a strip of his land for- highway purposes.

This action was brought by the plaintiff, as assignee of the defendant A. Joseph Barth for the benefit of 'his creditors under an assignment made July 31, 1889, against the assignor and Anna Barth, his wife, to reach and subject to the payment of the debts of the assignor three certain parcels of real estate, purchased and conveyed to the defendant Anna Barth,— one October 15, 1883; one October 25, 1886; and one September 20, 1888,— all for the price and of the value of…

The plaintiffs, as partners,- owned and operated a gristmill in the town of New Frankeri, Brown county,, situated about fourteen miles from the city of Green Bay. The firm of A. A. Warren & Son were insurance agents doing business as such in the city of Green Bay.

This is an action for the death of plaintiff’s intestate, caused by the alleged negligence of the defendant. .The deceased was the husband of the plaintiff. He was in July, 1891, yard foreman of the firm of Bird & Wells, who owned and operated a saw and planing mill at Big Wausaukee, a lumbering point on defendant’s line of road. A spur track ■from defendant’s road, about a mile in length, ran into the mill yard.

This is an action to recover for personal injuries to the plaintiff caused by a defective sidewalk in the defendant city.

This action was commenced June 17, 1893, to recover upon six several county orders issued by the defendant, and which had been assigned by the several payees thereof to the plaintiff. ' Each order is alleged in the complaint as a separate cause of action, and their aggregate amount is $221.38. The fifth cause of actión is upon an order for $19.75 issued by the defendant to Edward Fenelly, August 2, 1892, and assigned to the plaintiff.

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

APPEALS from the Circuit Court for Ashland County. Trespass for timber cut. The plaintiffs owned a large tract of timber land in the town of Yaughan, Ashland county. The county board of Ashland county, upon a petition signed by more than fifteen freeholders in each of the towns of Yaughan, Knight, Ashland, Morse, Jacobs, and Butternut, attempted to lay out a highway, under secs. 1300-1307, R. S., running through the said towns.

The complaint alleges, in substance, that March 21, 1893, the defendant, a corporation created for logging and lumbering, had a quantity of pine saw logs in and along the east fork of the Chippewa river, and by its agent entered into an agreement with the plaintiff to drive them below the railroad bridge at Glidden, Wis., and for the purpose of inducing the plaintiff to enter into such contract falsely and fraudulently stated, represented, and guarantied that the number of…

About 188G the parents of the plaintiff, Emma Kentzler, had separated at or near Detroit, Mich., and always thereafter continued to live separate.

The action is for damages for personal injuries from a defective highway in the defendant town. The appellant, Prdbert^ was made a party defendant upon claim made by the town that he was primarily liable for the damages. There was a trial in the circuit court, which resulted in a verdict against the town on plaintiff’s cause of action, and in favor of Prdbert that he was not primarily liable.

The facts are stated in the opinion. The appeal is from a judgr ment affirming the assessment. They argued, among other things, that the charter requires that the final assessment of benefits should be determined by the board of public works and confirmed by the council before the work is ordered at the expense of the abutting property. Massing v. Ames, 37 Wis. 645.

Action to recover damages to the plaintiff by falling on an icy sidewalk. Snow had been permitted to remain and accumulate upon the sidewalk until the travel over it had formed a ridge twelve to fourteen inches high, which was rough and slippery. The street was in a similar condition. The walk had been in substantially the same condition from about Christmas of 1891 to January 12,1892, the time of the plaintiff’s accident.

The defendant was prosecuted for wilfully and unlawfully exacting and receiving, as a servant and agent of the Ashland Water Company, a corporation of the city of Ash-land, from James Anderson, a person whom it was bound to furnish with water for residence purposes in said .city, an amount in excess of the established rates as. fixed by secs. 1, 2,3, and 4 of an ordinance of said city, entitled “An ordinance to establish and fix the rate or rates to be charged by the Ashland…

This action was commenced September 20, 1892. The complaint alleges, in effect, the incorporation and organization of the defendant city; that the plaintiff by occupation is a public teamster, doing business therein; that he is now, and for more than seven years has been, the owner in fee and the occupant of the premises therein described; that he has erected thereon a dwelling house, stable, and other outhouses; that adjacent to said premises is Bull creek, which originally…

This was an action upon quantum meruit for the value of granite furnished by plaintiffs for the building of defendant’s house. The defense was that the granite was furnished under an entire contract to furnish all the granite for the house, according to the plans and specifications, for $10,000, and that the plaintiffs failed to furnish a large portion of the granite.

APPEALS from the Circuit Court for Oneida, County. This is an action of ejectment in which the plaintiff had judgment for the recovery of the'premises claimed, upon a trial before the court without a jury, a jury trial having been waived by stipulation of the parties.

This is an action to obtain a perpetual injunction enjoining and restraining the defendant from prosecuting a certain action of replevin, brought in the circuit court for-Oneida county by the defendant against the plaintiff, for-the recovery of 150,000 feet of pine saw logs, the property of the plaintiff in that action, having certain specified marks,, alleged in the complaint therein to have been cut during the winter of 1891-92 from the S. W. of the S. W. J of section 17,…

The plaintiff is a manufacturer and dealer in soda-water apparatus at Boston, Mass., and the defendants are in business at Wausau in this state. On May 16, 1892, the defendants wrote to the plaintiff, in effect, inquiring what discount and inducements he could offer them on said fountains.

EKEOE to the Circuit Court for Marinette County. The defendant was tried on the following information: “ I, Hiram 0.

EREOE to the Circuit Court for Portage County. Arson. The plaintiffs in error, Ilenry Kollock and Shepard Kollock., were convicted of feloniously burning the ’barns of one Springer, August 25, 1893, and sentenced to imprisonment in the state prison, and they have sued out this writ of error to reverse that judgment. The plaintiffs in error were neighbors of Springer, living about half a mile from him on the same road.

<p>APPEAL from the Circuit Court for Douglas County.</p> <p>Peter Dean died at his residence in Duluth, January 4, 1884. He left no widow or children. He had four brothers and one sister, to wit, Thomas, Dennis, John, Alexander, and Mary. Thomas and Mary were still living, and resided in New York City. Dennis was still living, and resided at Superior. John and Alexander were both dead, and each left three children as his heirs at law. The children of Alexander all resided in New York City. The children of John resided in Milwaukee and Cleveland.</p> <p>On January 1, 1884, the said Peter Dean executed his last will and testament, wherein, after providing for his debts, funeral expenses, and a monument, he bequeathed to his sister, Mary, his copper and bank stocks and money sufficient therewith to amount to $25,000. He devised to the city of Superior 240 acres of land, to be used by the city for public purposes, and to Duluth certain lots in trust to be sold and the proceeds thereof used for the purchase and beautifying of parks in Duluth for the use of the inhabitants of said city. Said real estate, in the aggregate, was of the value of $80,000. On February 6, 1.8S4, said will was admitted to probate, and August 25, 1881, a final settlement of the debts, legacies, and expenses of said estate was made, but the residue thereof was not disposed of.</p> <p>The defendant is the son-in-law of said Dennis, and resides at Superior. In the winter of 1889 the defendant and his father-in-law, Dennis, believing that the devises to-Duluth and Superior were void, commenced negotiating for the purchase of the interest which the three children of the deceased brother John had in said estate. The result of said negotiations was that on or about April 20, 1889, the defendant obtained from the three children of John a conveyance of their interest in said estate, as mentioned in the case of Allen v. Brooks, ante, p. 265. The defendant called upon the plaintiff, Thomas, in New York, April 28, 1889, and commenced negotiating with him for the purchase of his interest in said estate, and, as a result, the plaintiff, on or about August 1, 1889, agreed to sell and convey, and thereupon did sell and convey, his interest in said estate to the defendant for $300 cash, and, in case the defendant acquired title by law, then $900 in addition.</p> <p>On August 8, 1890, Dennis, Mary, the three children of Alexander, and the defendant began a suit in the circuit court for Douglas county against the city of Superior to have said devise to Superior declared to be void. On October 22, 1890, the circuit court overruled a demurrer to the complaint therein. The defendant thereupon answered, and on the trial the circuit court found and held that said devise to Superior was void, and judgment was thereon entered accordingly, and the said city thereupon appealed from said judgment to the supreme court, and, pending that appeal, the same was settled by the parties. On June 5, 1891, the said Dennis, Mary, the three children of Alexander, and the defendant petitioned the probate court of ■St. Louis county to have said devise to Duluth declared void, and upon the hearing thereof, after due notice, the ■same was, August 4, 1891, declared to be void.</p> <p>After the circuit court for Douglas county held the devise to Superior void, the plaintiff tendered back to the defendant the consideration for the deed mentioned, and ■demanded a reconveyance, on the ground that such deed had been so obtained by fraud and deceit practiced by the defendant upon the plaintiff, and thereupon commenced this action to set aside said deed, upon the grounds mentioned. The defendant answered, and on the trial the court found, in effect, that the evidence failed to show such fraud ■or deceit, and rendered judgment in favor of the defendant, from which judgment the plaintiff, Thomas, appealed to this court. Pending the appeal, Thomas died, and thereupon his three children and heirs at law were substituted as plaintiffs in his place.</p>

<p> Land contract: Vendor's interest subject to mechanic's Ken. </p> <p>By the terms of a land contract nothing was paid down, but the vendee was required to erect a building at once, and the title to both the building and the land was to remain in the vendor until full payment was made. Held, that the vendor was the owner of the premises within the meaning of ch. 849, Laws of 1885, and his interest was subject to liens for labor performed and materials furnished in the erection of such building. Winslow J., dissents, being of the opinion that the vendor’s claim is a lien and is prior to the liens for labor and materials.</p>

<p> Ejectment: Counterclaim for improvements: Grantee of life tenant by quitclaim deed: Adverse possession. </p> <p>In ejectment the grantee of a life tenant by quitclaim deed cannot counterclaim for the value of improvements made and taxes paid by him while holding under such deed, as against the owner of the fee. Such a deed cannot be made the basis of an adverse holding of the fee in remainder.</p>