Volume 89 — Wisconsin Reports

<p> Wills: Devise of homestead: Provision for widow in lieu of dower: Election: Sale of lands by executor: Limitation of action for recovery: Taxation of costs. </p> <p>1. Under the law as it existed in 1864 (Laws of 1864, oh. 270, sec. 1) the owner of a homestead might dispose of it by will, and a devise thereof might be charged with conditions such as the payment of legacies or debts. And such seems also to be the law now.</p> <p>2. A condition, attached to a devise of land in trust, that the devisee should give a sufficient bond for the support of the testator's widow during her life, followed by acceptance and the filing of such bond and performance of its conditions, was a provision made for the widow, under sec. 18, ch. 89, E. S. 1858, which deprived her of dower unless she commenced proceedings for the assignment of her dower within a year after the probate of the will, as provided by sec. 19 of said chapter.</p> <p>3. Land devised in trust subject to the payment of debts was sold by the executor for the purpose of paying the debts, and the purchaser continued in possession, claiming under the executor’s deed, from 1866 to 1891. The cestui que trust came of age in 1882, but failed to bring any action for the land within five years thereafter. Held, that his rights, if he had any, were barred by the limitations prescribed in secs. 3918, 4215, 4218, E. S.</p> <p>4. A motion to review the taxation of costs by the clerk, which fails to point out in what respect the moving party is aggrieved, is insufficient and brings nothing before the court.</p>

<p>(1) Judgment non obstante veredicto. (2) Court and jury: Amending special jlnding. (8, 4) Attorney and client: Contract as to fees: Advancing money for expenses: Condition precedent: Rescission: Waiver.</p> <p>1. Judgment non obstante veredicto should not be rendered for defendant.</p> <p>2. "Where there is evidence to support a material finding in a special verdict, such finding cannot be amended by the court and a different one, in whole or in part, substituted for it.</p> <p>3. Where, by a written contract, attorneys agreed to prosecute a claim for a certain fee in case of a recovery and without pay in case of ■ a failure to recover, and it was provided that they should commence suit and should “ contract or otherwise obtain the lowest charges for services and other necessary disbursements and expenses to be furnished by ” their client, and should litigate the claim (unless paid without) as far as it could be carried, it seems that the provision in respect to the payment of expenses by the client was an independent stipulation, and not a condition precedent for the mere nonperformance of which the attorneys might rescind the contract.</p> <p>4. An action was brought by the client in such a case against her. attorneys to recover moneys retained by them, out of the amount recovered, in excess of the fee stipulated in the contract. Upon the evidence,— showing, among other things, that because of the client’s inability the attorneys had made advances to meet expenses of the litigation; that more than three years after the making of the contract, and while the litigation was still pending, the client wrote offering to pay them an additional fee in case of recovery; that they then claimed that the contract had been ■abandoned before anything was done under it, and that their employment was a general one; that the client insisted that the contract was still in force, and suggested that she would employ •other attorneys; that they replied that she could not change attorneys without a settlement of the amount due them; that she finally wrote that, in view of their disposition and purpose to hold and care for the case, she was willing to let the questions in respect to the contract and fees rest for future settlement; and that the attorneys thereafter continued to act in the case and to make advances, — it is held that the attorneys had waived all right to say that the contract had been rescinded or abandoned because of the •client’s failure to advance money for expenses.</p>

<p>Appeal from a judgment of the circuit court for Price county: J. 3L Parish, Circuit Judge.</p> <p>On April 25, 1891, the defendant, in consideration of the membership fee and the warranties and agreements contained in his application for membership, accepted the plaintiff (being a common laborer under classification E), and insured him against injuries through external, yiolent, and accidental means for two years, subject to its by-laws, in a manner and upon conditions, among others, the following, to wit: (1) In the sum of $1.50 per week against loss of time caused by such means, not exceeding twenty-six consecutive weeks from any one injury, for other than injuries resulting in the loss of one or both hands, feet,.or eyes, causing immediate, continuous, and total disability; (3) or, if such, injuries shall cause the loss of one foot or one hand, within ninety days will pay such member $585. The conditions upon which this certificate is issued and accepted by the assured are, among other things, (2) that notice in writing of any claim made shall be given the secretary of the association at Oshkosh, with full particulars of the accident and injury, verified by such member if alive, immediately . after the accident occurs; and unless positive proof of injury and duration of disability, and that the same resulted from bodily injuries covered by this insurance, shall be furnished to the association within six months of the date of the accident, then all claims thereon shall be forfeited.</p> <p>On July 18,1891, the plaintiff’s left hand was badly injured, and he claimed that the use thereof was totally lost and destroyed. Thereupon the plaintiff notified the defendant, and September 17,1891, the defendant paid the plaintiff, on account of said injury, $50. On January 18, 1892, the plaintiff made an affidavit, which was thereupon presented to the defendant, to the effect that at the time he was injured he was feeding a split grinder; that his left hand got caught in the machine; that three fingers and part of the other were torn off, and his hand cut, and the joint of the thumb destroyed; that he thereby sustained immediate, continuous, and total loss of time for the prosecution of every and any kind of business pertaining to his occupation • during the space of twenty-six weeks, being from July 18, T891, to January 16,1892, for which he claimed indemnity, which, when paid, should be in full discharge of all claims which he then had or thereafter might have on account of the personal injury aforesaid; that the money value of his time was $7.50 per week. Thereupon the defendant paid the plaintiff $145, which he received January 20,1892, making $195, in all, so paid.</p> <p>On May 20, 1892, the plaintiff commenced this action to recover the $585 for such total loss of hand, less the amount so paid. The complaint was in the usual form, and contained the usual allegations. The defendant answered by way of admissions and denials, and alleged that the plaintiff’s claim was fully settled by such payments, January 18,. 1892.</p> <p>At the close of the trial the jury returned a special verdict, to the effect (1) that the plaintiff was duly insured against accidents, as alleged in his complaint, by the defendant ; (2) that the plaintiff did sustain injuries at the time alleged in his complaint, for which the defendant would be liable under the policy issued to him; (3) that said in-' jury did cause the loss of the plaintiff’s left hand; (4) that the loss of such hand was entire; (5) that the defendant did receive the proofs of loss of hand, or ivaived such proofs of loss; (6) that the plaintiff received from the defendant for said injuries the sum of $195; (7) that the defendant paid out said sum, relying upon the plaintiff’s written statement, for weekly claims; (8) that the plaintiff did not accept said sum in full satisfaction of his claim; (9) that the plaintiff did not execute defendant’s Exhibit 4 with a full knowledge of its contents; (10) that there was a gross error made by the plaintiff in executing said Exhibit 4, or in the alleged settlement; (11) that the plaintiff was insured for the loss of his left hand for the amount of $585. The court ordered judgment on said special verdict for $390 damages^ and costs. Erom that judgment the defendant appeals.</p>

<p>Ax’peal from an order of the circuit court for Bayfield county: J. K. Parish, Circuit Judge.</p> <p>The plaintiff commenced an action in the circuit court against S. G. Ooolc and C. G. Maxcy. An attachment was issued, and an attempt to garnish the South Shore Lumber Gompamj was made. A garnishee summons was attempted to be served upon the garnishee by leaving a copy with one E. W. Harris, who was supposed to be its managing agent. The' garnishee did not appear, and such proceedings were subsequently had as resulted in a judgment against the garnishee by default. The garnishee afterwards moved the court, on affidavits, to set aside the judgment, on the grounds (1) that Harris was not its managing agent; and (2) that the garnishee was not indebted to the defendant. The motion was denied, and the garnishee appeals.</p> <p>The garnishee is a domestic corporation. Its books and principal office are kept at Minneapolis, in the state of Minnesota. All its officers • and directors live in Minnesota. Sprague, its president, claims to be a resident of Wisconsin, but he actually lives in Minnesota. ' He has general management of the business of the corporation, and is frequently at Sprague and Washburn, where its business in this state is1 carried on. Harris, in his absence, has some charge of the-business at Sprague. He superintends the mills, ships the lumber, hires 'and discharges bands, and has sometimes assumed to be managing agent. He is the only visible agent within the state when Sprague is absent. That he had any authority'as managing agent is denied by his own affidavit and the affidavit of Sprague. It is not claimed that Sprague-, or any officer or director of the corporation other than Harris, was actually within the state at the time of the attempted service of the garnishee summons.</p> <p>They contended, inter alia, that Harris was not the managing agent of the corporation within the meaning of the statute. Reddington v. Mariposa L. <£> M. Go. 19 Hun, 405; Emerson v. A. dk O. L. R. Co. 18 id. 150; Wheeler &■ W. Mfg. Go. v. Lawson, 5Y Wis. 400, 404. It appeared that the defendants had property liable to execution sufficient to satisfy plaintiff’s demands, and the issuance of the garnishee-summons was therefore such an abuse of the process of the court as to warrant a dismissal of the proceedings at any stage thereof. 8 Am. & Eng. Ency. of Law, 1105,1106; Wells-v. Am. Eap. Go. 55 Wis. 23; Bussell v. Ralph, 53 id. 328; Ghanute v. Ma/rdm, 25 Ill. 63; Gorbin v. Goddcrrd, 94 Ind. 419.</p> <p>They argued, among other things, that Harris was the managing agent of the corporation. He was the only person managing its affairs, and the only person in the state on whom process could be-served. Palmer v. Permsylwcmia Go. 35 Hun, 369; Tuoh-band v. G. <fo A. R. Go. 115 N. Y. 43Y; Roehester, 3. & L. R. Go. v. 3. Y., L. E. & W. R. Go. 48 Hun, 190; Upper Miss. T. Go. v. Whittal&er, 16 Wis. 220; Garr v. Gomm. Bcmkt 19 id. 2Y2.</p>

<p> Municipal corporations: Special assessment: Injunction. </p> <p>1. Void special assessment proceedings which are being prosecuted and, if not prevented, will result in creating a prima facie lien upon land and a cloud on the title, will be enjoined.</p> <p>2. Certiorari is not an adequate legal remedy in such a case, since it does not issue as a matter of right.</p>

<p>Appeal from a judgment of tbe circuit court for Eau Claire county: W. E. Baxley, Circuit Judge.</p> <p>This is an action for the recovery of damages caused by a defective sidewalk. The plaintiff was injured, on January 31, 1891, upon one of the sidewalks of the defendant. A ridge of snow and ice, made by the travel along the walk, had been allowed to form and remain. Plaintiff slipped from the ridge, and her foot went through a hole in the plank of the sidewalk and was caught, and her limb -was broken. A claim for damages was filed with the city clerk, for the action of the common council. The common council faded to take final action upon the claim within sixty days after its filing. The plaintiff appealed to the circuit court for Eau Claire county, by giving written notice of appeal, .and by executing an undertaking to the city of Earn Olavre, reciting that she had filed a notice of appeal to the circuit court of Eau Claire county with the city clerk, and conditioned “ that said Louisa West shall and will faithfully prosecute her appeal and claim in said circuit court aforesaid, and will pay all costs that may be adjudged against said Louisa West, appellant, by the court, and no more.”</p> <p>The trial court overruled a motion to strike the cause from the calendar and to dismiss the action on the grounds (1) that no bond, but an undertaking only, had been executed to the city; and (2) that the undertaking was not •conditioned as the statute in such cases directs. The charter of the city of Ecm Olaire provides for an appeal in such cases by the filing of a notice of appeal with the city clerk, .and the execution of a Toonct to the city, “ conditioned for tbe faithful prosecution of such appeal and the payment of all costs that shall be adjudged against the appellant by the court.” Laws of 1889, ch. 184, snbch. 7, sec. 25.</p> <p>There was a trial which resulted in a verdict and judgment for the plaintiff, from which the defendant appeals.</p> <p>contended, inter alia, that the undertaking given by the plaintiff, which was in effect conditioned for the faithful prosecution of her appeal and claim m the circuit court for Eau Claire county and for the payment of all costs adjudged by that court “ and no more,” was not the bond required by the charter. Besides the liability of a surety being strictis-sinii juris, it is also well settled that statutory requirements must be strictly pursued or the appeal is invalid. Clark v. Miles, 2 Pin. 432; Brown v. Pratt, S id. 305; Pellón v. Blooming Grove, 3 Wis. 310; Varney u. Oaswell, id. 744; Thompson v. Thompson, 24 id. 515; Myres v. Pcwker, 6 Ohio St. 502-504; Sharjo v. Bedell, 10 Ill. 88; Drinlmine v. Bau Glaire, 83 Wis. 428.</p> <p>They argued, among other things, that where no rights of the obligee or appellee are abridged by the terms of the bond given from that prescribed by the statute, such obligee or appellee cannot complain, and the bond, though not in strict compliance with the requirements of the statute, is sufficient to give the appellate court jurisdiction. Fondey v. Cuyler, 1 Wend. 464; Slcellinger v. Pendes, 12 id. 306;. .Ess parte Fasiabrooks, 5 Cow. 27; People v. Vermilyea, 7 id. 13S; Shaw v. Mclntier, 5 Allen, 423; Peck v. Thompson, A. 388; Woodman v. Oalki/ns, 12 Mont. 456; Bube v. Cedar-County, 35 Neb. 896; Munnv. Goodlet, 10 Ark. 89.</p>

<p>Appeals from a judgment of the circuit court for Jackson county: W. F. Bailey, Circuit Judge.</p> <p>This, action was brought to recover damages for an injury sustained January 13, 1891, by reason of a defective sidewalk in the defendant city, at the place particularly described in the complaint, which contained the usual allegations in such oases. The answer is by way of admissions and denials. At the close of the testimony, the jury returned a general verdict, wherein they found for the plaintiff and assessed her damages at $935.50, and also returned special findings to the effect (1) that the sum of $90 will compensate the plaintiff for loss of time from inability to labor from the time of the alleged injury to the time she became of age; (2) that the sum of $165.50 was paid out or incurred in behalf of the plaintiff for medical attendance and medicines, from the time of the alleged injury to the time she became of age.</p> <p>The defendant moved to set aside the verdict upon several grounds, and among others, upon affidavits, for the misconduct of the jury, which motion was denied by the court, and the defendant excepted. Upon a motion being made by the plaintiff for judgment, the same was granted, after deducting the two sums mentioned in such special findings from the general verdict; and the court thereupon ordered judgment entered in favor of the plaintiff, and against the defendant, for $679.50 damages and $273.32 costs. From that part of the judgment disallowing to the plaintiff the two amounts mentioned in said special findings, the plaintiff appeals to this court. The defendant appeals from that part of the judgment in favor of the plaintiff and against the defendant.</p> <p>They contended, inter alia, that the view was not such misconduct as required the granting of a new trial. People v. Montgomery, 13 Abb. N. S. 207; Trafton v. Pitts, 73 Me. 408. If the party entitled to complain have knowledge of such an irregularity and remain silent, it will be deemed waived. 1 Th'omp. Trials, § 904; StcompofsJci v. Steffens, 79 Ill. 303. The affidavits of these jurors cannot be received to impeach their verdict. JEcImis'ter v. Garrison, 18 Wis. 594; Schultz v. Gatlm, 78 id. 611.</p> <p>argued, among’ other things, that the acts of the jurors in viewing the place of the accident without the authority of the court was such misconduct as to entitle the defendant to a neiv trial. Thomp. Trials, §§ 904, 2604; Hayward v. Knapp, 22 Minn. 5; Thomp. & M. Juries, § 354; Hewitt v. Pioneer Press Co. 23 Minn. 178; Aldrich v. Wetmore, 52 Minn. 164; Koehler v. Clea/ry, 23 id. 325; Woodbiory v. Anolca, 52 id. 329; Harrington v. Worcester, L. <& 8. 8i. P. Co. 157 Mass. 579; Deacon v. Shreve, 22 N. J. Law, 176; Qarside v. Ladd W. C. Co. 17 R. I. 691. The affidavits of the jurors were competent. Knight v. Freepo’B, 13 Mass. 218; 2 Thomp. Trials, § 2619; Shaw v. Pish, 21 Wis. 368; 2 Greenl. Ev. § 78. The effect of the misconduct may be inferred from the character of the acts. Elliott, Appellate Procedure, 620. There is no safety except in setting aside the verdict in a case where acts and conversations are shown which could have influenced the jury. Stafford v. OsJcaloosa, 57 Iowa, 748; Welch v. Tmerner, 78 id. 207; Kruidenier Bros, v. Shields, 77 id. 504; Vose v. Muller, 23 Neb. 171.</p>

<p>Appeal from a judgment of the circuit court for Jackson county: W. P. Bailey, Circuit Judge.</p> <p>This action was for the recovery of damages for an injury sustained by the plaintiff by reason of the insufficiency and want of repair of a bridge and highway of the defendant while she was traveling over and along the same. The complaint states, in substance, that the highway and bridge passed over a deep and narrow'ravine; that the approaches to the bridge were too narrow and crooked, and there was a want of suitable railing or barriers to protect and prevent persons and teams passing over the bridge from falling or being thrown therefrom and down the embankment into the deep ravine, and that on the south side there was no railing or barrier, and the one on the north side consisted of one or two poles resting upon forked stakes or crutches set in the ground, extending along the bridge about four feet above it, and one fork or prong of the crutch at the northeast corner of the bridge extended in towards, and so near, the traveled track that it was difficult, if not impossible, to pass it with a load of hay extending beyond the sleigh or box thereon, without coming in contact with it; that in approaching the bridge from a westerly direction the highway passed down a steep hill, and on a curve from northwest to southeast, and was lower on the north side than on the south, and curved northward in going in an easterly direction, owing to a bluff or hill oil the south side, so that a team could not turn out on that side and avoid contact with the forked crutch of the barrier on the north side, and without danger of overturning the load and being thrown down into the ravine, of which the defendant had notice, etc.; that at the time in question the plaintiff was passing over the bridge and highway, in an easterly direction, with a span of horses and sleigh, with a hay rack and small load of hay thereon, but by reason of said defects, etc., the hind end of the load and hay rack upon which she was riding and driving struck and was caught upon said forked stake at the northeast corner of the bridge, and the load of hay, rack, and sleigh were overturned, and thrown down the embankment on the north side, a distance of about thirty feet, the plaintiff falling among trees upon the ground about thirty feet from the approach to the bridge, on the oast side thereof, whereby, without fault or negligence on her part, she was greatly injured, etc. The answer put in issue these allegations.</p> <p>Upon trial before a jury, a special verdict was found in substance in conformity with the plaintiff’s claim, and, among other things, that the defects causing the injury were: (1) Not sufficient width of road or approach to bridge; (2) too short curve of road; (3) bridge not in line of road; (4) lack of proper and sufficient barriers or guards; and (5) the crotch post on north side of bridge projecting over the bridge too far, with which the sleigh or load thereon came in contact,— and that the plaintiff was not guilty of any want of ordinary care which contributed 'to her injury, and fixing the damages at $1,200. A motion was made to set aside the verdict, and for a new trial, on the ground that each of the special answers was against the law and not supported by the evidence. The motion was denied, and judgment was given on the verdict in favor of the plaintiff, from which the defendant appealed.</p>

E. Bailey, Circuit Judge. The action is for damages for the flooding of the basement of plaintiff’s building by surface water and sewerage, by reason of defective sewers, gutters, and drains. It is claimed for the plaintiff that the sewers and gutters constructed by the defendant are so defective that in times of ordinary hard rains they so turn the water and sewerage upon plaintiff’s premises as to flood her basement with water, sewerage, and debris.

E. Bailey, Circuit Judge. On January 23,1888, tbe defendants William A. Bennett and wife, to secure to tbe plaintiffs tbe payment of four-notes of tbe aggregate amount of $5,500, executed a mortgage to them on 480 acres of land, and tbe same was recorded January 24, 1888.

E. Bailey, Circuit Judge. Action in equity. The complaint alleges, in substance, that the plaintiffs, O. Gotzian The complaint further alleges that said Sommermeyer, Brimi, and Iiuebner entered into partnership about the 23d day of January, 1890, and continued to do business until the 27th day of October, 1893, when the ShaJemcm attachment was levied; .that it was agreed by and between Sommer-meyer, Brimi, and ITuebner, when the partnership was formed, that Sommermeyer…

E. Bailey, Circuit Judge. This is an action for tbe recovery of a bill of goods for $493.41, sold to tbe defendant, in wbicb an attachment was made upon tbe defendant’s stock of goods, upon an affidavit of good reason to believe that tbe defendant “ bad assigned, conveyed, disposed of, or concealed, or was about to assign, convey, dispose of, or conceal, bis property, or some part thereof, with intent to defraud bis creditors.” Tbe defendant traversed tbe affidavit, denying…

F. Bailey, Circuit Judge. The defendants, Charles W. E. Sommermeyer, Lena Brimi, and Anna Huebner, were copartners, doing business under the firm name and style “ Boston One Price Clothing House.” The plaintiff was the wife of the defendant Sommermeyer. The appellant, Ca/roline Schwartz, was an intervening attaching creditor. The defendant firm became insolvent and failed, owing many and considerable debts, amounting to a large sum over and above the value of their assets.

<p>Appeal from a judgment of tbe circuit court for Eau-Claire county: W. F. Bailet, Circuit Judge.</p> <p>Tbe defendants, Charles W. E. Sommermeyer, Lena Brimi, and Anna Huebner, were copartners, doing business under tbe firm name and style “ Boston One Price Clothing House.”' Between, tbe copartners it was agreed that Sommermeyer should furnish capital from $10,000 to $20,000. He had no money, but had land. He mortgaged the land to the plaintiff to establish a line of credit and as security for such debt as the firm should contract with him by the purchase of' goods. The firm became insolvent and failed. The plaintiff attached their entire stock of goods. On the 26th day of October, 1893, the Boston One Price Clothing House gave him a note for $7,095.95, the amount of its indebtedness to him, due on demand. On the same day the plaintiff had an attachment issued and levied. It was afterwards discovered that the note and all papers in the attachment proceedings-were dated October 27,1893. The appellant was a creditor of the.firm, and attached the same goods on the 26th day of October, 1893, but subsequent to the levy of the plaintiff’s-attachment. She afterwards intervened to have the plaintiff’s attachment set aside as void, because plaintiff’s debt was-not due, because his attachment was collusive and fraudulent as against subsequently attaching creditors, and because . the attachment was void because it appeared by the return that it had been levied before its date. Issues were awarded, which were all found by the trial court in favor of the plaintiff. The appellant filed exceptions and appealed.</p> <p>They contended, inter alia,, that the defendant’s writ as well as affidavit and undertaking, being dated October 27, had no legal existence-before that time, and could confer upon the - officer no authority to execute it until that time. The plaintiff’s attachment, having been duly issued and levied on the, 26th, is,, therefore, the prior attachment on the property. Waples,, Attachm. & Gar. (1st ed.), 259; Drake, Attachm. (7th ed.), § 183e/ Wade, Attachm. § 141; Berry v. Spear, 13 Me. 187 ;■ Dame v. Fales, 3 N. H. 70; Uoehlander v. Uochlcmder, 73-T11. 618. Where the record shows that a writ of attachment was not executed during tbe life of tbe writ, tbe attachment is void. Ilólzman v. Matines, 2 N. M. 211; Haoiee v. Barber, 28 S. W. Rep. 151; Burm v. Thomas, 2 Johns. 190; Bur7¿ v. Barna/rd, 4 id. 309; Holliday v. Qoojper, 3 Mo. *286; Miller v. Handy, 40 Ill. 448; Wilson v. Strieker db Go. 66 Gá. 515. Tbe writ of a subsequent attaching creditor will not be affected by tbe amendment of a mistake in tbe first attaching creditor’s writ, although appearing manifestly on tbe face of tbe writ to have been occasioned by a mere slip of tbe pen. Putnam v. Hall, 3 Pick. 445; Drake, Attachm. •§§ 1845, 1875/ Ohio L. Ins. da T. Go. v. TFrba/na Ins. Go. 13 Ohio, 220; Bessey v. Vose, 73 Me. 217; Kitt/redge v. Gifford, '62 N. H. 134; Peters v. Cowway, 4 Bush, 566; Waples, At-tachm. & Gar. 125, 492.</p> <p>They argued, among other things, that tbe error in tbe date is a mere irregularity and does not annul tbe writ. Salter v. Ililr gen, 40 Wis. 363; Fitzyatriek v. Flannagan, 106 U. S. 650. A writ of attachment is “ process,” and amendable under ■sec. 2830, R. S. Carey v. Germa/n Aon. Ins. Go. 84 Wis. 84. Tbe policy of tbe statutes is to avoid tbe invalidation of process by mere technical errors; and tbe court has always been liberal in allowing amendments and in upholding proceedings when attacked collaterally. Sabin v. Austin, 19 Wis. 421; Strong v. Gatlin, 3 Pin. 121; Lederer v. G., M. d¡ St. P. P. Go. 38 Wis. 244; Keehn v. Stein, 72 id. 196; Marshall <& llsley Bank v. Milwaukee W. Mills, 84 id. 23; Wolf v. Oook, 40 Fed. Rep. 432. A large number of decisions in other jurisdictions bold process both mesne and final, containing clerical errors, to be merely irregular and not void. Chicago Book da O. Go. v. Kvnzie, 93 Ill. 415, 431; Kelly v. Harrison, 69 Miss. 856. Tbe following are other cases of errors held to be merely irregularities: Errors in tbe date of process: Green v. Walker, 37 Me. 25 (execution); Buy dam v. McCoon, Coleman & 0. (N. Y.), 64 {fieri facias). Errors in the statement of the return day: Hamilton v. Ingraham, 121 Mass. 562 (writ); Jackson v. McLean, 90 N. 0. 64 (summons); Cramer v. Van Alstyne, 9 Johns. 386 (execution); Dodge v. Hunter, 85 Me. 121 (writ .and attachment thereon). Testatum clause entirely lacking: McIntyre v. Rowcm, 3 Johns. 144 (capias ad satisfaciendum). Error in the signature of clerk or judge: Pepoon v. Jenk-vns, Coleman & 0. (N. Y.), 60 (writ); Parsons v. Bwett, 32 N. H. 81 (writ); McCormick, v. Meason,l Serg. & R. 92 {venditioni exponas)', Henderson v. Graham, 84 N. C. 496 ■(summons); Austin v. Lamar F. Ins. Co. 108 Mass. 338 (writ); Jett v. Shinn, 41 Ark. Bid (writ); Baker v. Swift, 81 Ala. 530 (summons in detinue); Guarantee T. dé S. D. Go. v. Buddington, 23 Fla. 514 (citation). Error in the judge’s name in the teste: Hash v. Brophy, 13 Met. 4J6 (writ in garnishment action); U. 8. v. Turner, 50 Fed. Rep. J34 (summons). Error in attorney’s name: Jewett v. Garrett, 47 Fed. Rep. 625 (summons). Error in regard to the seal of the court: Hall v. Lackmon , 50 Ark. 113 (execution); Jump v. McClurg, 35 Mo. 193 (attachment); Winched v. McKenzie, 35 Neb. 813 (attachment). Error in the direction to the -officer: Morrell v. Cook, 31 Me. 120 (writ and attachment thereon); Parker v. Barker, 43 N. H. 35 (writ and attachment thereon); Herring v. Kelly & Co. 96 Ala. 559 (attachment). Misnomer of party: Crafts v. Bikes, 4 Gray, 194 (writ). Error in caption, “ In the name of the people,” etc.: Lwingston v. Coe, 4 Neb. 319 (attachment). Erroneous recitals of a previous essential proceeding in the action: Rock Island Plow Co.v. Breese, 83 Iowa, 533 (attachment); Chase ■v. Gibncm, 15 Me. 64 (execution). Excessive amount: Bis-sell v. Kip, 5 Johns. 89 (execution). The cases in Maine cited by the appellant are instances of a very strict con.struction. That court went so far as to hold process without the seal of the court absolutely void. State v. Flem-mmg, 66 Me. 142. But even in Maine the later cases show a more liberal tendency. Dodge v. Hunter, 85 Me. 121. A mere irregularity in proceedings cannot be set up by an intervening attaching creditor. Marshall <& Ilsley JBcmlc v. Milwaukee TF. Mills, 84 Wis. 23. The appellants were-bound to make the objection first in the lower court, so that the plaintiff could apply there for leave to amend the writ. Morris v. Peek, 73 Wis. 482; State v. Learner, 62 id. 387;. Jmjyp v. MeOlurg, 35 Mo. 193. Creditors cannot intervene- and traverse plaintiff’s attachment affidavit. Pice v. Wolf,. 65 Wis. 5; Landcmer v. Vietor, 69 id. 434-442; Fvrst Hat-Dank v. Greenwood, 79 id. 275; Kling v. Childs, 30 Minn. 366. Even for defects apparent in the record no one can traverse except the attachment debtor. May v. Courtnay, 47 Ala. 185. Much less can interveners traverse the affidavit of attachment for matters dehors the record. Coeh-rell v. McGrow, 33 Ala. 526; Metis v. P. & A. I. Ins. Co-17 S. C. 120; Copelcmd, v. P. & A. L. Ins. Co. id. 116. Attaching creditors cannot intervene in order to interfere' with the attachment proceedings. Petition of Cross, 17 R. I. 568; Dennis v. Spencer, 51 Minn. 259.</p>

<p> Railroads: Crossing above highway: Improper construction of bridge:' Proximate cause of injury: Signals and rate of speed: Rleading </p> <p>1. Under sec. 1837, E. S. (providing that whenever it shall be necessary to construct a railroad bridge over any street it shall be sufficient, to construct the .same so as to give a clear passageway of twenty feet or two passageways of fourteen feet each), where a frightened horse, in attempting to pass through a passageway more than fourteen feet wide, brought the buggy into contact with the side thereof, it cannot be claimed that the fact that the adjoining passageway was slightly less than fourteen feet in width was the-cause of the injury.</p> <p>2. Where, in an action against a railroad company for personal injuries sustained at a highway crossing, it was claimed that the omission to give any signal of an approaching engine was one of the causes of the injury, no liability can be based on the fact that-the whistle was sounded, even if plaintiff’s horse was frightened thereby.</p> <p>3. In any case the sounding of the whistle is not a basis of liability unless it was negligently or recklessly sounded.</p> <p>4. The statutory requirements as to rate of speed and signals at highway crossings apply only to grade crossings. Jenson v. C., St. P., M. & O. R. Co. 86 Wis. 589, adhered to.</p>

<p> Insurance against fire: Oral contract to renew policy: Pleading. </p> <p>Where a complaint states facts sufficient to constitute a cause of action for breach of an oral contract to renew a policy of insurance, a statement therein that defendant’s agent, after making such contract, and before the loss, told plaintiffs that the policy had been renewed, is irrelevant It is not an averment that the policy was in fact renewed, and does not render the complaint insufficient on the ground that it fails to allege performance of conditions precedent prescribed in the policy.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: "W". E. Bailey, Circuit Judge.</p> <p>This action was brought by the plaintiff, as assignee of one Talbot in a voluntary assignment for the benefit of his •creditors, to recover $2,000, the purchase price of a steamboat alleged to have been sold and delivered by the plaintiff to the defendants, JEoTm, Smith, and Gcurrison, November 18, 1892. The answers of the several defendants were, in substance, a denial of the allegations of the complaint. Upon trial before a jury, at the close of the plaintiff’s testimony the court gave judgment of nonsuit against the plaintiff, from which he appealed.</p> <p>It appears that the alleged sale was made by Talbot as ■the agent of the plaintiff for that purpose, and the correctness of the ruling of the court depends upon his testimony, which tends to show that the defendant Gcurrison, claiming •to act for himself and the other defendants, November 18, 1892, made a bargain with Talbot, the plaintiffs agent, to purchase the steamboat, then in the Fox river below the bridge at Berlin, for $2,000, payable $1,000 in cash the following Tuesday or Monday, and the residue in “bank-accepted paper,” “bank acceptance,” or “bank-accepted note,” ■— all of these expressions having been used by the witness, — payable September 1, 1893, with seven per cent, interest; that nothing was said as to what was meant by the expressions thus used, nor what banks should accept it, though the banks of Eau Claire were mentioned, but not any particular bank, and the note was to be delivered at Berlin; nor was anything stated as to how the bank should accept it, or that any bank was to sign or indorse it. Garrison represented that Smith did the managing for the defendants in the woods, and the defendant Holm was their man of means, and he (Garrison) was their woodsman, working on the streams and looking up timber, and that he had full authority to buy the boat. At this time he made arrangements with one Tiny Smith to take the boat up above the bridge and haul it out, preparatory to its shipment on the cars, for the sum of $80; and Talbot was to aid by giving directions, etc., but not to be to any expense. Tiny Smith procured help, hauled out the boat, and blocked it up on the' bank, and prepared it for shipment, and Talbot had given him the key that was used on the lower part of the boat,, and before the action was brought all the other keys, except one retained by Talbot. The defendants Garrison and Holm came to Berlin December Tth, and had an interview with Talbot, and both declared that they were satisfied with the-condition of the boat, and the evidence tended to show that the parties waited there a considerable time for the plaintiff' to come from "Winnecomie to execute a bill of sale of the boat; and in the meantime some conversation was had in respect to making a sale of the boat for cash in hand, and Holm made an offer of $1,500, which was refused, and nothing further was said on the subject. At the time of the alleged agreement, Garrison stated the boat was to be used for towing logs on Lake Manitowish and on the waters of the Elambeau or Chippewa rivers, and it was to be transported on the cars. He desired time to submit the matter to the parties at Eau Claire, and it was agreed that he was , to return and telegraph directions, and accordingly, on the 19th of the same month, he sent a telegram from Eau Claire to Talbot, saying, “Pull-out the boat.” When Garrison and Holm were at Berlin, on the 7th of December, they took measurements of the boat and discussed the question as to the convenience of loading it. At the request of Holm, Talbot repeated to him the statement of the bargain .made with Garrison. The bill of sale was to be made to the defendant Smith. This was by request of Mr. Holm, and it was executed accordingly on the 8th of December, ready for delivery. The arrangements for the purchase of the boat were-made by Garrison. Smith subsequently admitted that the agreement to buy the boat was made for him, and claimed that the bargain was for $1,000 cash and his note for $1,000,, due the 1st of September, but that nothing was said about there being a bank acceptance, or any indorsement. The-defendant Holm afterwards paid Tiny Smith the agreed price for taking the boat out of the river and blocking it up,, and the latter claimed there was something due him for extra work, and up to and at the time of the trial he claimed to hold possession of the boat for the defendants and as security for his pay.</p> <p>They contended, inter alia, that the contract was void, for uncertainty. Orem v. Ganger, 36 Wis. 369; 1 Parsons, Cont. -415, 525; WiUhowsky v. Wasson,- II N. C. 451; Hutton v. Moore, 26 Ark. 382; Brown v. dole, 45 Iowa, 601; Leonard v. Oa/rter, 16 Wis. 601; Cole v. Gla/rli, 3 Pin. 303; 1 Am. & Eng. Ency. of Law, 529. “No question affecting tbe interpretation of contracts can properly be submitted to tbe jury, except those arising upon conflicting evidence as to tbe terms of tbe agreement, or where extrinsic evidence raises some doubt over tbe identity of tbe subject matter or of tbe clabnants thereunder.” Home Mut. Ins. Go. v. Boe, 11 Wis. 33, 41.</p>

<p> Conveyance of land: Contract for support: Setting aside for nonperformance: Homestead: Abandonment </p> <p>In an action to set aside a conveyance by plaintiff to his daughter-in-law of eighty acres of land, including his homestead, and a contract by which she was to allow him to occupy one room and to pay him §30 annually, or in lieu thereof to furnish him comfortable board and clothes, the evidence is held to sustain findings of the trial court to the effect that plaintiff had left the premises without cause and had abandoned the same as a homestead; that the defendant had been ready and willing to perform the contract on her part; and that there was no ground for setting aside the deed or the contract.</p>

F. Bailey, Circuit Judge. Garnishment. So far as necessary to understand the questions passed upon by the court,the facts are as follows: One Thomas Dowling wras the owner of certain saloon fixtures and stock in trade in Eau Claire, and insured the same against loss by fire in the appellant companies, to the aggregate amount of $2,500. The .property was destroyed by fire, December 9,1893.

F. Bailey, Circuit Judge. Tbe complaint contains two causes of action, tbe first being for tbe conversion of personal property covered by a chattel mortgage, and tbe second upon an undertaking wbicb bad been given by tbe defendant- Allen and others to obtain possession of said property from tbe sheriff, who then held it in an action of replevin commenced by tbe plaintiffs herein.

F. Bailey, Circuit Judge. This is an action to recover the amount due -upon two promissory notes executed by the defendant to one F. A. Moore. There was no defense against the notes, but the answer set up a counterclaim for services rendered by the defendant to F. A. Moore for $864.61. The verdict was for the plaintiff for the amount of the notes, less $52 allowed on the counterclaim; and judgment was for the plaintiff for that sum, less $29.60 remitted by the plaintiff.

Fisn, Circuit Judge. From a petition filed in the county court of Walworth county, and the records therein referred to, the following facts appear: Mahala Martin died January 13, 1889,- leaving a last will and testament. On February 2, 1889, the defendant, Wallace Ingalls, of Elkhorn, was appointed special administrator ■of said estate. On March 19, 1889, the said will was admitted to probate, and said Ingalls was appointed administrator with the will annexed.

Eish, Circuit Judge. Personal injuries. The plaintiff was employed by the defendant, September 23, 1891 (be being then eleven years of age), in riding a horse attached to a corn cutter in the defendant’s field. While so riding the borse ran away, plaintiff was thrown off, fell under the machine, and received deep cuts on the shoulder and over the eye.

Fish, Circuit Judge. This action was brought by the plaintiff to recover damages for an injury received by him in defendant’s yard and on its tracks in Kacine, Wis., and while in its employ as a switchman.

H. Johnson, Circuit Judge. Tbe action is to recover $255.30, balance of account for certain goods delivered by tbe plaintiff to tbe defendant Michael I. Mendelson, to be sold on commission. Tbe plaintiff was engaged in tbe manufacture and sale of wbat were known as “ Eosa sadirons.” Tbe defendant Michael I. Men-delson entered into a written contract with the plaintiff to sell said.

C. Ludwig, Judge. Between 7 and 8 o’clock in the evening of December 29, 1891, tbe defendant, with a double team and wagon, was driving out from Milwaukee, west, on the Lisbon plank road. When he was near Thirty-First street he met the plaintiff’s horse and buggy, being driven by the plaintiff’s son, coming from the west into the city, and they struck each other, the-defendant’s wagon tongue piercing the breast of the plaintiff’s horse and killing him.

N. Austin, Judge. Action upon contract. The plaintiffs were partners.

H. JohNSON, Circuit Judge. This action is for the recovery of a money demand. August 5, 1894, the defendants, upon an affidavit of nonresi-dence of plaintiff, obtained ex fcurte an order of the circuit judge requiring the plaintiff to file security for costs in the action, in the sum of $250, within twenty days after the service of a copy of the order, and that all proceedings on his part be stayed until such security should be filed.

Appeals from orders of the superior court of Milwaukee county: R. N. AustiN, Judge. The action is upon a contract in writing for the sale of 250 shares of paid-up corporate stock in the Jacobs Electric Company, a corporation, by the plaintiff and one Jacobs jointly to the defendant, Weil, for the sum- of $25,000, of which $13,500 was to be paid at the date of the contract, and the remaining $11,500 was to be paid in several deferred payments.

F. Bailey. Circuit Judge. Personal injuries. Tlie defendant’s railroad runs in a general easterly and westerly direction through the outskirts of the city of Augusta. The passenger and freight depots are on opposite sides of the track, near the west end of the yard, and from thence the yard extends easterly along the main track for a distance of nearly a quarter, of a mile.

The appeal in tbis case is from an order of tbe circuit court for Rock county: John R. Bennett, Circuit Judge. The appellant 'moves for an order suspending the order appealed from, appointing a receiver of the rents, issues, and profits of the defendant’s works, and of the hooks, papers, and documents, who was to have full and complete charge of said works and property, and staying all proceedings under such order during the pendency of the appeal.

II. JohNson, Circuit Judge. Action in equity to enjoin tbe prosecution of garnishment, proceedings in tbe state of Iowa. Tbe plaintiff is a married-, man, with a family dependent upon bim, residing in this-state, and is in tbe employ of tbe Chicago, Milwaukee & St. Paul Railway Company. Tbe defendants, who are also residents of Wisconsin, brought action against bim in Iowa, and garnished bis exempt earnings in tbe bands of tbe railway company.

N. AustiN, Judge. The action is ejectment for the north fourteen inches of lot 2 in block 57 in the Seventh ward of the city of Milwaukee.

H. Johnson, Circuit Judge. ■ Tbe appellant was summoned as garnishee of one Fabsel, and be answered, in substance, that be was not liable as suob, for tbe reason that be beld tbe credits, property, and effects of Fabsel by virtue of an assignment made to bim by tbe latter for tbe benefit of bis creditors, pursuant to tbe statute, and sucb assignment and accompanying proceedings were made a part of bis answer, upon wbicb tbe plaintiff moved for judgment.

H. JohNsok, Circuit Judge. Tbe Milwaukee Mutual Fire Insurance Company was a corporation duly organized and existing under secs. 1941a-1941f, R. S., during all tbe times herein mentioned, doing a business of insurance upon tbe mutual plan.

N. AustiN, Judge. Personal injuries. The plaintiff was injured September 7,. 1891, while alighting from defendant’s electric street car,, on Yan Burén street, in the city of Milwaukee.

N. AustiN, Judge. Tbe action is for personal injuries. Tbe plaintiff was a brakeman upon one of tbe freight trains on tbe defendant road. In tbe performance of bis duties it became necessary for bim to aligbt from a freight car on tbe main track, and to cross over to tbe side track, to operate wbat is called a “derailing switch,” in order to enable other employees of tbe defendant to place certain freight cars upon such side track. It was in tbe night time.

N. Austin, Judge. This is an action for personal injuries sustained by coming in collision with the defendant’s electric car, in consequence of the alleged negligence of the defendant’s servants in charge. The defendant answered by way of admissions and denials and allegations of contributory negligence. At the close of the trial the jury returned a verdict in favor of the plaintiff for the sum of $1,500. From the judgment entered thereon defendant appeals.

N. Austih, Judge. This action was brought by tbe plaintiff to recover from tbe defendant damages claimed to bave been sustained by bim by being expelled by tbe defendant’s conductor from one of its cars.

C. Ludwig, Judge. Tbe action is brought to recover the balance due upon a promissory note executed to the plaintiff by the defendant Rufus K. Langson, and payment guarantied by W.' J. Lang-son, for $103.80, on which there was an indorsement of $37.75. The answer was a general denial; also, the defence-that the note had been .procured from the defendants, through fraud and misrepresentations, and wholly without, consideration.

<p>Appeal from an order of the circuit court for Milwaukee county: D. H. JohNSON, Circuit Judge.</p> <p>This is an action for personal injuries sustained by the plaintiff, September 28, 1891, while driving across twelve paraEel tracks of • the defendant, covering the space of seventy-five feet, at an alleged street crossing, by being-struck by a passing engine, in consequence of the alleged negligence of the defendant’s servants in charge. The defendant answered by way of admissions and denials. At the-close of the trial the court submitted to the jury thirty-two questions, in the form of a special verdict, six of which were answered by the court or by the consent of counsel, twenty-five of which were answered by the jury, and one remained unanswered. Upon the rendition of the verdict, the defendant moved the court, upon the minutes of the judge and the-special verdict, for an order directing judgment to be entered in favor of the defendant; and the plaintiff at the-same time moved the court, upon the minutes of the judge, the special Verdict, and the evidence, to set aside said verdict and to grant a new trial on seventeen specific grounds mentioned. The court overruled the defendant’s motion,, and granted that of the plaintiff “ for the reason that said special verdict is inconsistent and in part contrary to the clear preponderance of the evidence given on said trial.”' From that order the defendant appeals.</p>

<p>Appeal from orders of the circuit court for Milwaukee' county: D. IT. JohNsoN, Circuit Judge.</p> <p>The complaint in this action states, in substance, that the-defendant Andrew Hildebrand made bis promissory note-to-the defendants Frank A. and Owen Lappcn, under the name of Frank A. happen & Co., November 9, 1892, for $10;GG0,. payable six months after date, with interest at eight per cent, per annum, and that the latter indorsed the note' to> the plaintiff’s assignor, the Plankinton Bank, and avers presentment and nonpayment of the note, and notice to the-maker and indorsers of the note; that the defendants Frank A. Lappen & Co., at tbe time of tbe delivery of tbe note to tbe PlanMnton Bank, also delivered to it a certificate for 150 shares of tbe capital stock of tbe O. L. Packard Machinery Company, originally issued by it to tbe defendant Fred Hildebrand, which “was by him duly indorsed in blank, and thereafter duly delivered, so indorsed, to said PlanMnton Bank, in tbe usual course of business, by tbe defendant Frank A. Lappen as aforesaid.” Tbe certificate and indorsement is made an exhibit to tbe complaint, and it was averred that tbe debt it was delivered to secure bad become due and was wholly unpaid, and that tbe plaintiff, as assignee of said bank, was tbe lawful owner and bolder of tbe note and certificate, and “ that tbe defendants Fred Hildebrand and Andrew Hildebrand have, or claim to have, some interest in or lien upon said certificate, but that such lien or interest^ if any, is subordinate to the lien of tbe plaintiff therein.” Judgment was demanded (1) barring and foreclosing tbe defendants, and all persons claiming under them or either of them, of and from all right, title, claim, ben, and equity of redemption in said certificate and tbe shares of stock represented by it, and for a sale, thereof, and that tbe plaintiff be paid out of tbe moneys tbe amount due on tbe note, with interest, costs, and expenses, so far as said moneys will pay tbe same; and (2) that tbe defendants Frank A. Lappen and Owen Lappen and Andrew Hildebrand may be adjudged to pay any deficiency that may remain; and for such further or other relief, or both, as shall be just and equitable.</p> <p>Tbe defendants Fred Hildebrand and Andrew Hildebrand separately demurred to the complaint upon tbe grounds that several causes of action bad been improperly united and that tbe complaint did not .state facts sufficient to constitute a cause of action. Tbe court made separate orders sustaining each of said demurrers, from both of which tbe plaintiff appealed.'</p> <p>They contended, inter alia, that tbe complaint states but a single cause of action. Tbe cause of action is tbe facts wbicb give rise to plaintiff’s right to receive payment, combined with tbe default of tbe defendants whose duty it is to pay. There is but one obligation, one default, therefore but one cause of action. Twrner v. Pierce, 34 Wis. 658; Pimkum v. Fau Olaire, 81 id. 310; Stapleton v. King, 40 Iowa, 278, 284; Bliss, Code PL §§ 113, 116, and cases cited; Pomeroy, Remedies, § 452 et seq.; Bruil v. K. W. Mut. JS. Asso. 72 Wis. 433. Tbe cause of action should not be confounded with tbe relief. Tbe judgment of foreclosure is merely one of tbe measures of relief to wbicb tbe plaintiff is entitled. Pomeroy, Remedies, § 454; Bliss, Code PL §§ 114, 120; Whetstone v. Beloit S. B. Go. 76 Wis. 613; Moon v. McKnighi, 54 id. 551. This is essentially a suit in equity, and if tbe court has not tbe power to grant tbe relief in tbe way of personal judgment against tbe defendants personally bable for tbe deficiency, it is merely a matter of asking for too much rebef. A complaint is not demurrable on such ground. Tetoksbwry v. ScJmlenberg, 41 Wis. 584; Ames v. Ames, 5 id. 169; State ex rel. Mitchell v. Smith, 14 id. 564-568; Moritz v. Spliti, 55 id. 441; Scheibe v. Kennedy, 64 id. 564. Granting that two causes of action are stated, they are not improperly united. It is not necessary that tbe judgment or rebef demanded against each defendant should itself affect ab tbe defendants, but merely that tbe cause of action wbicb is tbe basis of such demand should in some way affect ab tbe other defendants. Sec. 2647, R. S.; Douglas Go. v. Walbridge, 38 Wis. 179,189,190; . Story, Eq. Pl. (Redfield’s ed.), § 2715/ Blake v. Van Tilborg, 21 Wis. 672; Winslow n. Dousmcm, 18 id. 457; Bassett v. Warner, 23 id. 673; Gates v. Boomer, 17 id. 455; Pomeroy, Remedies, § 486.</p>

<p>Appeal from an order of the superior court of Milwaukee county: R. N. Austin, Judge.</p> <p>The defendant Falk ivas a creditor of one O. T. Homelier. He held a judgment note representing his claim. He entered judgment on his note, issued execution on his judgment, and had it levied upon his debtor’s entire stock in trade. The plaintiff was also a creditor of Horneffer. Subsequent to the levy of the defendant’s execution he attached the same goods in an action on his claim. He now brings this action to have the defendant’s judgment on his judgment note, and the levy under it, adjudged to be entirely null and void as against his subsequent attachment, for want of compliance with the statute in entering the judgment. The defect in the proceedings which is complained of is that the affidavit annexed to the complaint is founded on information merely, and not upon knowledge. There was a general demurrer to the complaint, which was sustained, and the plaintiff appeals.</p>

IT. JohNsoN, Circuit Judge. Action for damages for defective construction of a private sewer.

<p>Appeal from an order of tbe circuit court for Milwaukee county: D. H. JosusoN, Circuit Judge.</p> <p>Tbe complaint charges that divers persons therein named as defendants, constituting tbe library board and tbe museum board of tbe city of Milwaukee, acting as a joint body and not as separate boards, advertised for plans and specifications for a building to be constructed for tbe use of tbe public library and tbe public museum of tbe city of MiVwcm-kee¡ without any resolution having been passed by tbe common council providing for tbe erection of snob building, and it was insisted that such joint action of tbe boards was not in law tbe action of either, but was merely tbe action of tbe individual members of tbe two boards and bad no binding force or efficacy whatever; that in response to tbe advertisements some seventy or eighty distinct sets of plans and specifications were submitted, and pursuant to tbe terms of advertisement five of these sets of plan's were selected, with tbe aid of an expert architect employed for that purpose, as tbe five best sets, and among tbe sets thus selected were those of tbe plaintiffs and those of tbe defendants Ferry dh Olas; that tbe members of said boards, still acting jointly, selected from these five sets tbe plans and specifications of Ferry dk Olas as the plans and specifications according to which tbe building was to be constructed, and undertook to appoint them as architects and superintendents of it; and it is charged upon information and belief that tbe selection of tbe Ferry ds Olas plans and specifications was collusive and corrupt.</p> <p>Tbe plaintiffs sued in their oapacity as citizens, electors, and tax-payers of tbe city, as well as on behalf of other electors and tax-payers thereof. It is alleged in tbe complaint that tbe persons submitting plans and specifications known as first, second, third, fourth, and fifth best were to have each $500 for tbe same, and that the said Ferry do Olas were, in addition to $500, to have percentages on tbe cost of construction of the building, as superintendents, at the rates therein stated; that plaintiffs submitted plans and specifications included within the five best, but they were not adopted; that the amount of money promised to be paid by the said joint board to the said expert for examining said plans and for the said five best plans, which included those adopted, and the percentage for superintending the braiding, would amount to upwards of $12,000, to be summarily disbursed out of the fund in the hands of the city treasurer belonging either to the public library or public museum fund, and to be disbursed on orders of the president and secretary of the board of trustees, respectively, countersigned by the city comptroller, out of funds then in the hands of the city treasurer.</p> <p>Upon this complaint an injunction was issued, restraining the members of the boards of trustees of the public library and public museum from taking any further steps or doing' any act towards carrying into execution their purpose in selecting plans and specifications for a public library and museum building, and from adopting any of the plans and specifications submitted to them, cither as a joint board or as individual members of either of the boards, and restraining the city of MiUoauJcee, its treasurer, comptroller, common council, and other officers from paying any obligations incurred by said joint board on account of plans and specifications so solicited by them for said building, and from paying any person who might have acted as an expert in examining the plans for his services as such; and said city and its common council and all other officers thereof were forbidden to pass any resolution or take any action having for its purpose to validate, directly or indirectly, the proceedings, acts, or doings of the said joint board in respect to the matters aforesaid; and the defendants Ferry <& Olas were forbidden to do any act or take any steps whatever towards the construction of the said building, and from using any of the designs, plans, or ideas embodied in the plans and specifications submitted by the plaintiffs, and from making any contract for the construction of the building. A motion was made to dissolve the injunction, but it was modified so as to restrain the city of Milwaukee, its commofi council, comptroller, and treasurer from auditing, allowing, or paying, in whole or in part, any obligation incurred or attempted to be incurred by said joint board or by the several boards of trustees of said museum and library on account of the plans and specifications mentioned in the complaint, or on account of the services of the expert architect, upon the order of said boards, or either of them, or any of the officers of said boards; and in all other respects the injunction was dissolved.</p> <p>Subsequently the trustees of the public library and of the public museum transmitted to the common council the five sets of plans and specifications mentioned, and recommended the adoption of the plans and specifications of Ferry <& Olas, and accompanied the same by a bill of the expenses incurred in the matter of procuring plans and specifications, amounting to about $3,000, including bills for advertising, entertaining the expert, and payment of $500 for each of the five sets of plans specified, selected as the best, and some other apparently reasonable items of expense. Upon the papers on file and the affidavit of one of the plaintiffs, a motion on behalf. of the plaintiffs was made for a further injunction restraining the city of Milwaukee, its common council, comptroller, treasurer, and all other officers or agents of the city from passing any resolution in said council towards auditing or paying any of the bills for moneys for said plans and specifications, or from paying directly or indirectly any portion thereof. The court made an order denying such application, from which the plaintiffs appealed.</p> <p>They contended, inter alia, that the sole power of making and entering into eontraots for doing all the work of building the proposed library and museum building is vested in the board of public works, “ by and under the direction of the common council.” Sec's. 10-12, eh. 93, Laws of 1891. The words “by and under the direction of the common council ” mean that that body may determine the size, number of stories, material of construction, time of beginning, and date of coinpletion of the building, and such • general matters only. But when these things have been so determined by the council, the duty to contract for the construction of the building and, as a necessary incident thereto, to employ an architect to prepare plans and specifications for the same, is vested in the board of public works, and no other body can lawfully act. Peterson v. New York, 11 N. T. 454; Dillon, Mun. Corp. § 465, note 1. The power to do these particular acts having been granted by the legislature to the board of public works, it is beyond the scope of the common council to delegate that power or' any part thereof to any other branch of the city government. Lauenstei/n v. Fond du Lao, 28 "Wis. 336; Lord v. Oconto, 41 id. 386; Beach, Pub. Corp. § 216; Mitchell v. Wiles, 59 Ind. 364; People ex rel. Smith v. Flagg, 11 N. Y. 584; Brady v. New Yorlt, 20 id. 312. The legislature has in this case distinctly and directly prescribed by whom the contracts shall be made for doing this work, and in a special manner and independently of the methods prescribed for the usual city buildings; and the method so prescribed must be strictly followed. The provision is mandatory,' and the common council can no more delegate the power of obtaining plans and letting-contracts than they could proceed to erect an almshouse or city hospital, using the funds provided in the special law in question. Fcmners’ L. S T. Go. v. Ga/rroll, 5 Barb. 649; Smith <y. Newburgh, 11 N. Y. 130; Beach, Pub. Corp. § 698; Dickinson v. Poioghlceepsie, 15 N. Y. 65; PeilVy v. Philo-■delphia, 60 Pa. St. 467; Stooklon v. Oreanor, 45 Cal. 643. Tbe common council, having no power to contract or solicit -plans, cannot in any manner ratify what has been done by the joint board. Dullcmty v. Vaughn, 77 Wis. 38; Veeder v. Lima, 19 id. 280; Brad/y v. New York, 20 N. Y. 312; Lydd/y v. Long Lsland Gity, 104 id. 218; Durcmgo v. Pervnvngtcm, 8 Colo. 257; Horton v. Thompson, 71 N. Y. 513; Hodges v. Buffalo, 2 Denio, 110; Zottmcm v. Scm Franoisoo, 20 Cal. 96; Hague v. Philadelphia, 48 Pa. St. 527; Hightoay Oommirs v. 'Van Duscm, 40 Mich. ■ 429; McDonald v. New York, 68 N. Y. 23; People eco rel. Ooughlin v. Gleason, 121 id. 631; ■Gates v. -Hancock, 45 N. H. 528. When the charter or a .-statute has committed a class of acts to particular officers or agents other than the general governing body, the proper .functionaries must act and the designations must be observed, and generally no act of recognition can supply a defect in these respects. Peterson v. New York, 17 N. Y. 454; Trester v. Sheboygcm, 87 Wis. 496; Clark v. Janesville, 13 id. 414; Dullanty v. Vaughn, 77 id. 38.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>This is an action by the plaintiff to recover commissions for services as a real-estate broker. The plaintiff claims that he had a tract of land to sell; that he proposed to sell it to the defendant; that the defendant promised him that if he should show it to him he would pay him $500 in case he found it a desirable investment and should buy it. The plaintiff showed the defendant the land. The defendant afterwards bought the land from another broker. The defendant denied that he made such a promise. That was the issue tried. Tbe testimony was, in tbe main, tbe testimony of tbe parties, wbo testified diametrically opposite to each other on tbe question in issue. Tbe verdict was for tbe plaintiff. From judgment on tbe verdict tbe defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Eau. Claire county: W. F. Bailey, Circuit Judge.</p> <p>About October 1, 1891, the defendant Mills was desirous-of purchasing certain pine standing on lands described in township 39, belonging to Cornell University, but had not the money to do so. Accordingly he applied to the defendant Golmcm to advance the money and purchase the lands in his (Golmcm’s) name and allow Mills to get off the timber and sell the same to Gol/mcm, he getting his pay out of the logs so delivered. Accordingly, October 1, 1891, Golman entered into a contract with CorneE University, whereby,, in effect, the university agreed to seU and convey to Golman as much of the marketable pine timber as he might reniove-from said lands in township 39, described, during the' seasons of 1891-92 and 1892-93, standing or growing or being thereon, and in consideration thereof the said Golman agreed to pay to said CorneE University for said timber the sum of $23,784, as follows: $5,784 cash down, and $18,000 AprE 1, 1892, with, interest annually on all sums unpaid from. October 1, 1891, at the rate of seven per cent., as per notes of even date.</p> <p>On October 27, 1891, said Mills and said Colman entered into a written contract, wherein Mills agreed, during tbe logging season of. 1891-92, to cut, haul, and put into the Flam-beau river, in the county of Price, 4,500,000 feet, more or less, of good, sound, smooth, straight, white-pine saw logs, to J>e cut from first choppings from the timber on the lands of said Mills described, in township 39; and that said Col-mam, should pay said Mills for all such logs afloat in said river, averaging not more than five logs to the thousand feet, board measure, $9 per thousand feet, to be graded to size only; and for all second-grade logs which should be put in and afloat in said river, averaging not more than eight logs to the thousand feet, $5.50 per thousand feet, to be paid in the manner following: $1.50 per thousand feet ■each month, as the logs should be banked, properly certified by the scaler, and $1.50 per thousand feet when the camps should break up in the spring, for men’s wages; the balance, one half July 15, 1892, and the other half October 15, 1892. Said Colman having purchased said timber at a cost of $23,784, he was therein authorized to retain a sufficient amount out of thé above payments to cover said purchase price and interest at seven per cent., and to secure himself against any loss on said timber purchase.</p> <p>About December 4, 1891, Mills bought 200,000 feet of other timber on lands described in township 42, and thereupon wrote Colman's agent, asking what Colman would pay for the same delivered in the West Fork of the Chippewa river. Colmaris agent thereupon answered, offering $9.25 for the first grade, averaging four logs to the thousand feet, and $5.25 for all other logs. On December 19, 1891, Mills wrote Caiman's agent to the effect that he would sell his logs to Colman at his offer, and would commence to bank, Monday, December 21st. By some inadvertence said letter was not sent, and was, in effect, repeated December 25,1891, and stating that the failure to send the letter would make no difference, as they were using Colman!s mark on the logs. On March 18, 1892, Mills assigned, transferred, and set over to the plaintiff the said standing and cut timber on said lands described in township 42, and all his right, title, and interest therein, together with all moneys due and to become ■due on said contract with said Colmcm, as collateral security for the payment of $1,785.43 owing by said Mills to this plaintiff. On March 23, 1892, the plaintiff notified said Col-mam of such assignment. On June 30, 1893, Mills executed •and delivered to the plaintiff a written contract, to the effect that, in consideration of $1 to him in hand paid, he thereby guarantied the payment by said Colman to the plaintiff herein of all moneys due and owing by said Colman as the purchase price of the timber described in the contract between Colmcm and Mills, for the logs to be cut from the lands described in township 42, and all of the moneys agreed by said Colman to be paid to said Mills therefor.</p> <p>This action was commenced by the service of a summons and complaint on said Colmcm, July 6,1893, and on said Mills, •July 26, 1893, for the recovery of the amount of $1,410.29, -with interest thereon from April 1, 1892, alleged to be due to the plaintiff from Colmcm on said last-mentioned contract ■and on said guaranty. Mills made no answer, and let the cause go by default against him. On July 26, 1893, Colman appeared separately by his attorneys hi said action, and demanded that the venue thereof be changed to La Orosse county, where he, the said Colmcm, resided. The plaintiff having failed to consent to such change, said Colman applied to the court for the same, but such application was denied September 20, 1893. Colmcm answered setting up the contract of October 27, 1891; that the contract for the logs on *ihe lands described in township 42 was a part or modification of the same contract; and that upon the two contracts together he (Colman) was not at the time of such assignment, March 18,1892, indebted to Mills in any sum whatever, but that Mills was then indebted to him in a large amount.</p> <p>At the close of the trial of said issue the jury returned a verdict in favor of the plaintiff and against both defendants, and assessed the plaintiff’s damages at the sum of $1,383.55. From the judgment entered thereon the defendant Oolmcm appeals.</p> <p>They contended, inter alia, that Mills’s guarantee of payment of the assigned claim was made for the purpose of making him a defendant, and thus preventing plaintiff from obtaining a change of venue to La Crosse county, and was a fraud upon the statute, upon the court, and upon the appellant. Mills to all intents and purposes was and has been a plaintiff in the action, and his interests are and all the time have been hostile to the interests of the appellant. The trial of the action should, therefore, have been had in La Crosse county. Wolcott v. Wolcott, 32 Wis. 63, 68; Eldred v. Becker, 60 id. 48; Bwpp v. Swmeford, 40 id. 28, 31; sec. 2621, B. S.; JJewett v. Follett, 51 Wis. 264, 214; Meiners v. loeb, 64 id. 343; Smith v. Loomis, 12 Me. 51. The right of removal or change of venue cannot be defeated by plaintiff by joining as a defendant a person merely for the purpose of defeating the real defendant’s right of removal. Arapahoe Go. v. K. P. B. Go. 4 Dill. 211; Walden v. Simmer, 101 IT. S. 511; Plymouth G. M. Go. v. Amador db S. G. Go. 118 IT. S. 204; JDow v. Bradstreet db Go. 46 Fed. Bep. 824; Avrowsmith v.N. db D. B. Go. 51 Fed. Bep. 165. When a contract is made between parties at a distance from each other, by means of letters from each to the other, it is the province of the court to examine the correspondence and construe the contract, and it ■is error to submit to tbe jury tbe question what tbe contract so entered into was. Remney v. Uigby, 5 Wis. 62; Mowry v.Wood, 12 id. 418; Diefenbaolc, v. Sta/rk, 56 id. 462; Ycm Valkenberg v. Rogers, 18 Mich. 180; Olumdler <& 'Go. v. Knott, 86 Iowa, 113; Lawrence v. M., L. S. efe W. R. Go. 84 Wis. 427. When tbe terms and language of a contract are ascertained, its meaning and intent present questions of law only, and it is tbe duty of tbe court to determine and declare what that is. Dwight v. Germania L. Ins. Go. 103 N. Y. 341; Home Ins. Go. v. Roe, 71 Wis. 40; Farnsworth v. Brwiguest, 36 id. 202; March v. Allabough, 103 Pa. St. 335; Emery v. Oiomgs, 6 Grill, 191; Barton v. Grey, 57 Mich. 622; Bernik, of Mon-tread v. Rechnagel, 109 N. Y. 482, 490; Simms v. Sumner, 58 N. W. Rep. 431.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. JohNsoh, Circuit Judge.</p> <p>This is an action upon a certain instrument claimed to be a lease, to recover two monthly instalments of rent alleged to have become due thereon for the months ending the 15th of March and loth of April, 1892, and remaining unpaid, as and for rent for the factory building described in the written agreement made an exhibit to the complaint. The answer of the defendant, was, in substance, a general denial.</p> <p>The material parts of the agreement, dated October 12, 1891, are that the 'plaintiff “hereby lets, demises, and leases unto the said party of the second part” (the defendant) the premises therein described, “ to have and to hold the same for a term ending the 1st day of January, 1902, at an annual rental of $4,300, payable in equal monthly instalments of $358.33 each, on the 15th day of each and every month; said rental to begin when the building hereinafter described shall be ready for occupancy, and the first payment at such rate is to be made on the 15th day after the completion of said building so that it shall be ready for occupancy, and thereafter on the 15th day of each month.” The plaintiff agreed that he would at once commence the erection of a «factory building upon said premises, and complete the same so that it would be ready for occupancy on or before the 1st ■day of March, A. D. 1892, according to the plans and specifications referred to and made a. part of the contract, unless the completion of the building at that time should be prevented by causes beyond his control, exercising reasonable •care and diligence. The building was to' be a four-story ■and basemént brick building of specified dimensions, the defendant agreeing that he would “pay the said rent at the times stated during the continuance of said term, and to quit and deliver up the same to the lessor or his attorney peaceably and quietly at the end of said term,” unless he purchased the same in the meantime, as therein provided; -and that if he should “fail to pay the rent aforesaid at any of the times expressed in this lease, or shall underlease said premises, or any part thereof, or assign this lease without the consent of the lessor in writing, or shall fail to keep and ■observe any of the covenants herein contained, on his part, then the lessor may expel the said lessee from said premises forthwith;” and, in case of the total destruction of the building by accidental fire, “ this lease, and the rights of the said party of the second part hereunder, shall thereupon cease and determine; ” and a conditional cessation of rent in case the building should during the term of the lease be accidentally damaged by fire, and not totally destroyed, was provided for.</p> <p>It was objected to this instrument that it was not a lease, but an agreement for a lease; and also to any evidence being-received under the complaint, as not stating a cause of action. It appeared that there had been a building on the premises in question which had been partially destroyed by fire, and the agreement contemplated a rebuilding for factory purposes, and the plans and specifications annexed to the contract were put in evidence. As the building approached completion, the defendant objected to the manner in which the building was being constructed, claiming that no insurance could be obtained on it, by reason of improper construction; and at bis request three practical builders-made an examination of it, and a written report to the defendant as to its condition, to the effect that certain work, therein specified should be completed, and that, if such “ defects are mended,” they considered the building safe enough for his business; and the inspector of buildings of the city of Milwaukee had, on the 12th of February, certified that-he did not consider the building safe to be used for factory-purposes, for the reason that new walls were erected upon: old ones which had been damaged by fire and water, and that the walls could not withstand a constant vibration and jarring, if the building was used for factory purposes. Evidence was given tending to show that the plaintiff agreed, to make the changes suggested, and that the defendant-agreed that if the same were so made he would accept the-building, but he denied any such agreement on his part.</p> <p>The evidence tended to show that the building ivas completed, exactly as the committee of builders had recommended, by the 1st day of March, 1892. On that day the-plaintiff tendered possession of the building as having been completed according to the contract. Said builders had' again examined the premises, and reported to the defendant, March 18, 1892, to the effect that all the changes recommended by them had been made, and that in their opinion the building was perfectly safe for defendant’s trunk factory. Subsequently the defendant pointed out deficiencies as still existing in the building, and declined to accept it with such-defects. On the 20th of April, 1892, H. C. Koch & Co., architects, certified to an examination of the building, with the plans and specifications, and that it was complete in all respects as originally intended and contemplated. A large amount of testimony was introduced, tending to show the building was not completed according to the agreement, plans, and specifications, and that there was a crack between the division and party wall extending to three feet above; the second floor, then branching off on the division wall at an angle, and extending up to just under the roof, which appeared before March, 1892. A building expert, a witness for the plaintiff, testified to the condition of this crack upon an examination of the building made as late as September, 1893, in substance, that the defect could be remedied by running a rod on each side of the wall through the building, with washers on both sides of the wall outside, and that any immediate danger to the building could be overcome in that way, and the building made safe. The defendant never entered into possession of the premises, and refused to pay any rent.</p> <p>The jury found a verdict for the plaintiff for $788.82, and, a motion for a new trial having been overruled, plaintiff had judgment thereon, from which the defendant appealed.</p> <p>They contended, inter alia, that the instrument described in the complaint is a mere executory agreement on the part of defendant to enter into a lease of the premises described when certain precedent conditions have been performed by plaintiff. Addison, Contracts (Morgan’s ed.), § 676; Taylor, Landl.-& T. § 39. The term for which the alleged lease should be in force was not to commence until the factory should be completed according to the plans and specifications mentioned therein, and ready for occupancy by defendant. Wright v. Tr&oeza/nt, 3 Carr. & P. 441. Considering the instrument as a lease, it is invalid for the reason that although rent is reserved there is no certain túne expressed when it shall commence, nor is it made contingent upon the happening of any certain event. 4 Wait, Act. & Def. 200, 201; Wood, Landl. & T. (1st ed.), § 184; Pearson v. Pies, 8 Ring. 181; Taylor, Landl. & T. § 70. It appearing from the proper construction of the instrument in question as a whole, that the term mentioned therein is to commence when the rental commences, viz: when the building specified is completed and ready for occupancy, and the time when it should commence being uncertain and not determinable, the instrument as a lease is void for uncertainty. Wood, Landl. & T. § 184; Begnart v. Porter, '7 Bing. 451; Hapwood v. Haswell, 33 Eng. C. L. 79, 83; Wright v. Treve-zant, 3 Carr. & P. 441; Buell v. Cook, 4 Conn. 242; Bunk v. Hwnter, 5 Barn. & Aid. 322.</p>

<p> Embezzlement: Place of commission of offense. </p> <p>Evidence that an agent who had collected moneys in other counties was in the county in which, by contract, it was his duty to pay over the same, and that he failed to do so, is not sufficient to sustain a conviction of embezzlement in the latter county, in the absence of evidence of a demand of payment in that county by the person entitled to receive such moneys, or of a conversion thereof to his own use in that county.</p>

EbboR to review a judgment of .the circuit court for Wau-kesha county: A. Scott Sloan, Circuit Judge. Subornation of perjury.

Bennett, Circuit Judge. Action to recover damages for personal injuries sustained: - by plaintiff while working as a brakeman in the employ, of: the defendant, and alleged to have been caused by the negligence of the defendant and its servants. The facts are stated in the opinion and in the report of a former appeal, 83 Wis. 459. There was a verdict for the plaintiff, assessing-bis damages at $10,000. From tbe judgment tbereon tbe defendant appealed.

Hastings, Jb., Circuit Judge. The defendant is a corporation organized under ch. 86, R. S., for the purpose of supplying to tbe city of Oconto, AVis., and its inhabitants, water for protection… Held: on grounds of public policy, that the mechanic’s lien laws do not apply to nor give a lien upon the waterworks system or plant of the defendant, and denied the hen, but gave a money judgment to plaintiff for the amount of its claim. From such judgment the plaintiff appeals.

<p>Appeals from an order of the superior court of Milwaukee county: E. N. Austot, Judge.</p> <p>Action under sec. 3216, E. S., for the sequestration of the property of an insolvent trading corporation and the distribution of its assets among its creditors. On the 2d of December, 1889, the J. & E. B. Friend Lace Importing Company, a corporation in Milwaukee, was insolvent, having assets composed of a stock of merchandise worth from $1,000 to $8,000, and accounts of the nominal value of $11,000, and having liabilities considerably in excess of its total assets. On that day the defendants and appellants the Merehcmti Exchange Bank and the Kalcwnazoo Knitting Gomvpcmy (hereafter known as the first class of creditors) levied attachments on the entire stock of goods of the corporation, upon claims aggregating more than the entire value of the stock; and on the same day the corporation, by its officers, made assignments of all said accounts to various other creditors, who are defendants in this action (hereafter known as the second class of creditors), and whose claims aggregate over $8,000. On the 3d of December, 1889, the defendants and appellants Mossbaeher and others (hereafter known as the third class of creditors) levied attachments on said stock of goods, on claims aggregating more than $6,000.</p> <p>Afterwards, the plaintiffs in this action obtained judgment against the corporation for $2,048.76, and, upon the return of an execution unsatisfied, commenced this action against the corporation, and all of the said creditors, and the sheriff, who then had possession of the stock of goods under the writ of attachment or under executions issued on the action commenced by the attachment. In their complaint the plaintiffs, after setting forth the facts showing the right to sue, and the insolvency of the corporation, allege, in effect, that •all of the said attachments and the assignments of the accounts were collusively and fraudulently made, at the instance and request of the officers of the corporation, with knowledge by all parties of its insolvency, and with intent to give and secure unjust preference over other creditors. The plaintiffs prayed for sequestration of the property of the corporation, and for the appointment of a receiver, and that the attached property be turned over to such receiver, and that the defendants who had received assignments of' accounts shordd account for the same to the receiver.</p> <p>"Upon this complaint an interlocutory order was made, declaring the corporation insolvent, adjudging sequestration ■of its property, appointing Morris Speiser receiver thereof; also, requiring the sheriff to surrender to the receiver all the property held by him under the defendants’ attachments and executions, and restraining all other proceedings in the-attachment actions. This order was appealed from, and affirmed by this court in Ballin v. loeb, 78 Wis. 404. Thereafter, the receiver, under the order of the court, sold the-stock of goods and realized the sum of $7,225.</p> <p>The answer of the first class of creditors admitted the insolvency of the corporation, but denied all collusion or conspiracy to obtain preference, set forth at length their attachment proceedings, and claimed a first lien by virtue thereof on the fund derived from the sale of the stock of goods. No-answer by the second class of creditors appears in the printed case. The third class of creditors, in their answer, denied all collusion or conspiracy, and denied knowledge of the-insolvency of the corporation when they attached, and claim their attachments to be a first lien on the stock of goods. They also allege a fraudulent conspiracy and combination between the corporation and the first and second classes of creditors, to give, them preference over other creditors, by means of collusive attachments and assignments, in fraud of the other creditors of the corporation. This answer is not in the form of a counterclaim or cross-complaint, and was served only on the plaintiffs.</p> <p>When the action came to trial, the plaintiffs moved for judgment upon the pleadings, and, after having taken the-matter under advisement, the trial court made an order providing —first, that there should be an equal and ratable distribution of all the property in the hands of the receiver among all the creditors of the corporation who have proven,, or who may prove, their claims; second, that no preference-be allowed, and that all other proceedings by the defendants be enjoined until the further order of the court; third, that the action, in so far as it attempts to set aside the assignments of accounts, be dismissed, because the same should be-done in a separate action brought by the sheriff \fowrt\ that the receiver should bring suits against the creditors of the second class to contest the validity of the assignments of accounts, and report the conclusion to the court; fifth, that the distribution to creditors be deferred until the conclusion of such suits and the filing of the receiver’s report.</p> <p>In the reciting clauses of this order it is said that the plaintiffs “ moved the court for judgment upon the pleadings, records, and facts admitted in open court by all parties ; that the corporation known as the J. & E. B. Eriend Lace' Importing Company, at the date mentioned in the amended complaint, was insolvent, and its insolvency was known by the corporation and the defendants.” In a subsequent part of the same order, as afterward amended by the court, it isy however, recited that the third class of creditors, represented by Mr. Bloodgood, objected to the rendering of judgment for the plaintiff on the ground “ that the final order of distribution to be entered herein should contain a provision that the defendants were entitled to a preference because-they had liens by virtue of their attachments set out in their answer herein, and that the insolvency of said defendant company was not known to said defendants, represented by said attorneys Bloodgood, Bloodgood & ICemper, at the túne of the issuing and levying of the attachments by said respective defendants.” It is further recited in said order that said third class of creditors “ offered to prove that the transaction of levying the attachments was a voluntary assignment of the entire property of the corporation defendant, and was brought about by a conspiracy between the attaching creditors and those taking the assignments, and that one feature of the fraud was that those attachments should not be traversed; another, that there was no legal or equitable ground for those attachments; another, that the property,, when seized by the sheriff under attachment, was to be immediately sold under an order from the court, to be granted under the statute, in order that the corporation defendant, ■or its officers, might purchase the same; another, that there was a conspiracy to secure debts or claims in which the officers of the corporation were interested,— which offer was considered immaterial.”</p> <p>The first class of creditors, represented by Mr. Flanders, appeal from so much of this order as provides for an equal distribution of property and refuses to allow any preference and enjoins other proceedings by the defendant. The third class of creditors, represented by Mr. Bloodgood, appeal from the whole order.</p> <p>The property of an insolvent corporation, before proceedings for a sequestration, is not a “ trust fund ” in the ordinary sense of that term. The term as used in this connection has a limited and special meaning quite dis'tinct from its ordinary signification. Ilospes v. K. W. M..& G. Go. 48 Minn. 174; Fogg v. Blair, 133 U. S. 534, 541; HoV-lins v. Brierfiéld G. <& 1. Go. 150 id. 371; White, P. dé P. Mfg. Go. v. Hemp B. Peites Imp. Go. 30 Fed. Rep. 865; Wait, Insolvent Oorp. § 142; 2 Pomeroy Eq. Jur. §1046. The idea of a trust arises out of the fact that, the property of the corporation being the fund to which alone creditors must trust in their dealings with the corporation, it would be inequitable to permit the corporation to arbitrarily withdraw that fund from their reach. Whether solvent or insolvent, the capital stock and property of the corporation is a trust fund created for the payment of the debts of the ■corporation, in the sense above explained. Adler v. Milwaukee P. B. Mfg. Go. 13 Wis. 57; Nazrro v. Merchants’ Mut. Ins. Co. 14 id. 295, 302; Wait, Insolvent Corp. § 142; 2 Morawetz, Priv. Corp. (2d ed.), §§ 780, 787; Union Nat. Bank v. Douglas, 1 McCrary, 86, 96; Breene v. Merchants’ & M. Bank, 11 Colo. 91. It is not until sequestration proceedings are commenced that the property becomes impressed with a trust in the full sense of the term, and the ordinary remedies of creditors are suspended. Breene v. Merchants’ As M. Bank, 11 Colo. 91; Hollins v. Brierfield, O. & 1. Go. 150 IT. S. 311; Boseboom v. Whittaker, 132 Ill. 89; Adler v. -Milwaukee P. B. Mfg. Go. 13 "Wis. 51; Hazro v. Merchants1 Mut. Ins. Go. 14 id. 295; Vcvrnvm v. Hart, 119 N. Y. 101; Throop v. Hatch L. Go. 125 id. 530; Hill v. Knickerbocker F. L. da P. Go. 18 N. Y. Supp. 813; Oomm. Hat. Bank v. Burch, 40 HI. App. 505. A mistaken interpretation of the •decision upon the former appeal in this case (18 Wis. 404) seems to have given some currency to the belief that a diligent creditor cannot acquire a lien by attachment or execution upon the assets of an insolvent corporation. The interpretation of that decision, however, in more recent cases leaves no doubt that such was not its meaning and intent. Garden Gity B. da T. Go. v. Geilfuss, 86 Wis. 612; Ford v. Plcmkinton Bank, 81 id. 363. The appellants having acquired valid liens upon the property of the corporation by the levies of their attachments and executions, the property in the hands of the receiver is impressed with those liens, and they must be recognized in the distribution of said property. Garden Gity B. & T. Co. v. Geilfuss, 86 Wis. 612; Ford v. Plankinton Bank, 81 id. 363.</p> <p>The statutes providing for sequestration, etc., were intended to secure an equal distribution of the property of an insolvent corporation among its honest creditors, and for that purpose to divest tbe liens of any individual creditors acquired after it became insolvent and with full knowledge of sucb insolvency, R. S. secs. 3217, 3225, 3227, 3228, 3245; BalUn v. Loeb, 78 Wis. 404; Ballston SpaBamlc v. Marine Ba/ik, 18 Wis. 490; Pierce v. Milwaukee G. Co. 38 id. 253; Potoers v. O. H.Ha/n-ilton P. Go. 60 id. 23; Adler v. Milwaukee P. B. Mfg. Go. 13 id. 57; First Nat. Bank v. Knowles, 67 id. 373; In re Waterbury, 8 Paige, 380; Ford v. Plankinton Bank, 87 Wis. 371, 372. Tbe provision of sec. 3245 for tbe payment of tbe “ legal and equitable liens ” upon tbe property in tbe “ order of tbeir priority ” clearly must refer to sucb liens as bad been given or acquired before tbe corporation became insolvent. The policy of tbe law of this state, both statute and judicial, has been uniformly opposed to preferences and favorable to equity. Gonlee L. Go. v. Pipón L. <& M. Go. 66 Wis. 481; R. S. secs. 1693, 1719, 1720; Sleeper v. Goodwin,. 67 Wis. 578; Lamp v. Simmions, 64 id. 525; Gampfield v. Lamuj, 25 Fed. Rep. 128; Norwegicm Plow Go. v. IIcmihornr 71 Wis. 539; Baum v. Bosworth, 68 id. 196; Yernon v. Upson,. 60 id. 418; Willis v. Bremner, id. 622. Tbe appellants did not acquire liens by tbe attachment proceedings against tbe property of tbe insolvent corporation, because tbe property seized was a trust fund, of which tbe directors of tbe corporation were trustees, and of which all tbe creditors were beneficiaries. Ford v. Plankinton Ba/nh, 87 Wis. 371; Bal-lim, v. Loéb, 78 id. 404; First Nat. Bamlc v. Knowles, 67 id. 387; Ha/ywood v. Lincoln L. Go. 64 id. 646; Powers v. 0. PL. Hamiilton P. Go. 60 id. 28; Adler v. Milwaukee P. B. Mfg. Go. 13 id. 6(3; 27 Am. Law Review, 846; Lyons-Thomas II. Go. v. Perry S. M. Go. 86 Tex. 143; Buncomb v. K. Y., P. cfi N. R. Go. 88 N. Y. 1; Bouse v. Merchcmti Nat. Bank,. 46 Ohio St. 493; Wood v. Prummier, 3 Mason, 309; Sa/nger v. Upton, 91 U. S. 56; Cu/rra/n v. Ark, 15 How. 312; Upton v. Tribilcock, 91 U. S. 45; 2 Pom. Eq. Jur. 1046; Taylor,. Priv. Corp. 759; Hopkins’s Appeal, 90 Pa. St. 76; Boseboom■■ ■v. Whittaker, 132 Ill. 81; 2 Morawetz, Priv. Corp. 803-861; Lane's Appeal, 105 Pa. St. 49; Adams v. Kehlor M. Co. 35 Red. Rep. 433.. This matter is res aclgudieata, because the ■order now appealed from results necessarily from the former ■decision in this case. Ballin v. Loeb, 18 Wis. 404.</p>

<p>Appeals from a judgment of the circuit court for Milwaukee county: D. H. JohusoN, Circuit Judge.</p> <p>This is an action to recover damages for fraudulently inducing the plaintiff to purchase worthless mining stocks. The complaint is set out at length in J5 Wis. 2J8, when this case was here on appeal from an interlocutory order. The answer of the defendant Bates was a general denial. The answer of the defendants Bengamin admits the purchase of mining stock by the plaintiff of the firm of Moore, Benjamin & Co.; denies all fraudulent or untrue statements, or that plaintiff relied on any information given her by defendants, but that she informed herself as to the facts; alleges that the stock, when sold, was worth what she paid for it, and afterwards greatly increased in value, and that the plaintiff had many opportunities to sell her stock at an advance, but refused to do so.</p> <p>Upon the trial the jury returned a special verdict, wherein they found: (1) That the plaintiff purchased from the defendants Laura I). Benjamin, Nathaniel D. Moore, and Elizabeth M. Bates, during the years 1886 and 1887, a large number of shares of the stock of certain iron mining companies upon the Gogebic range; the number of shares in each company and the amount paid for each share being separately set forth, and together amounting to about $15,000. (2) That, at the times of these several purchases, the defendant H. 8. Benjwmm was the agent of his wife, Laura D. Benjamm, in the business of the firm, and the defendant Bates was the agent of his wife, Elizabeth M. Bates, in the said business. (3) That the defendants, during the years 1886 and 1887, organized six of these iron mining companies by purchasing leasehold interests of land for various sums, ranging from $50,000 in one case to $242,000 in another case, and stocked each of said companies for $1,000,000. (4) That such capitalization and putting such stock upon the market for sale was fraud upon purchasers without notice, (o) That the plaintiff, when she purchased, had no notice of such facts. (6) That the defendant H. 8. Benjamm represented to the plaintiff, at the time she purchased her stock, that each of said stocks was a good investment at the price she paid; that it was impossible for her to lose thereby; that the property represented by the stock was in a good and promising condition; that the mines were being rapidly developed; that ore had been sold, or was ready to be sold, from some of them; and that they, or some of them, would yield dividends in the near future. (7) That the plaintiff relied upon such representations and was induced thereby to purchase her stock. (8) That the defendant Laura D. Benjamm joined in and assented to such representations. (9) That the defendant F. A. Bates represented to the plaintiff that said mines, or some of them, were in a good or promising condition and were certain to pay dividends in the near future. (10) That the plaintiff relied upon the representations made by Bates and was induced thereby to purchase stock or to retain stock after she had purchased it. (11) That the parties making said representations did not honestly believe them to be true when they made them. (12) That the defendant H. 8. Benjamin offered to repurchase from plaintiff the stock held by her at a sum which would yield her a large profit, but that the defendants H. S. Benjamin and F. A. Bates advised her not to accept the offer. (13) That the plaintiff was deterred from accepting said offer by the advice and representations then made to her by the defendant H. S. Benjamin. (14) That the defendants and others organized a scheme in the summer of 1887 for the consolidation of the iron mining companies in which the plaintiff held stock, together with other companies, into a single company, to be called the Lake Superior Consolidated Mining Company, which scheme failed. (15) That the plaintiff knew of said scheme and assented to it. • (16) That she retained her stock in the original companies, instead of selling the same, for the purpose of availing herself of the anticipated benefits of such consolidation. (17) That she was advised and induced by the defendants to so retain her stock. (18) That such advice was not honestly given for the plaintiff’s best interest, but for the purpose of keeping her stock out of the market. (19) That the plaintiff purchased her several stocks, and retained the same, for the purpose and in the hope of selling them at a profit. (20) That the plaintiff’s damages amounted to $15,660.30.</p> <p>Upon this verdict judgment was rendered for the plaintiff, and the defendants B&njamim, and wife appealed, as did also the defendant F. A. Bates.</p> <p>W. J. Twner, of counsel for the appellants II. 8. Benjamin and Lanora D. Benjamin, argued, among other things, that the plaintiff, being informed by her husband and Mr. Dixon of the condition and situation of the mines and of the speculative character of the property she was dealing in, could not recover by reason of representations made to ber. 1 Bigelow, Fraud, 521; 8 Am. & Eng. Ency. of Law, 643, subd. c; Mamlock, v. Fairbanks, 46 Wis. 415; Corner v. Welch, 51 id. 431; McEachercm v. Western T. <& C. Co. 97 Mich. 479; Dickinson v. Lee, 106 Mass. 557; Slaughter’s Ad/m’r v. Cerson, 13 Wall. 379; Gordon v. Butter, 105 U. S. 553; Southern D. Co. v. .Sil/va, 125 U. S. 247, 259. The measure .of damages was the difference between the value of the stocks as they were at the time of the purchase, and what they would have been worth in the Milwaukee market at the time of the purchase, had they corresponded with the representations made. 1 Cook, Stock (3d ed.), § 586; High v. Ferret, 148 Pa. St. 261; Vail v. Reynolds, 118 N. Y. 297; Smith v. Bolles, 132 U. S. 125; 3 Suth. Dam. § 1172; Derry v. Peek, 14 App. Cas. 337; Fargo G. & C. Co. v. Fargo G. <&, E. Co. 59 N. W. Hep. 1066. There can be no recovery in this case because there is no finding of the jury that the representations were untrue. Brandt v. Frederick, 78 Wis. 6. In an action for deceit a recovery can be had only upon a representation as to an existing or past fact. Sheldon v. Davidson, 85 Wis. 138; Sawyer v. Priclteit, 19 Wall. 146, 161; Robertson v. Parks, 76 Md. 118, 135; Weston v. Columbus S. R. Co. 90 Ga. 289; Batch v. Spooner, 13 N. Y. Supp. 642.</p>

<p>Appeal from an order of the circuit court for Milwaukee-county: D. H. JohNsoN, Circuit Judge.</p> <p>Some years prior to June 1, 1858, the La Crosse & Milwaukee Railroad Company was duly incorporated by the-legislature of Wisconsin, and organized to build and operate-a railroad from Milwaukee to La Crosse, and was given the-right to mortgage its road by divisions. It divided the road into two divisions,— the eastern, extending from Milwaukee to Portage City, a distance of 95 miles; and the western, extending from Portage City to La Crosse, a distance of 105 miles. The eastern division was incumbered by three mortgages, to secure bondholders on that division; and the western division was incumbered by two mortgages, to secure bondholders on that division. The whole road was incumbered by several judgments, one of which was in favor of Newcombe Cleveland, hereinafter mentioned. On June 1, 1858, that company executed a mortgage to William Barnes, ■as trustee, to secure an issue of bonds which covered the whole road, and August 11, 1858, executed a mortgage supplemental to said last-named mortgage, by way of further ■assurance. The Barnes mortgage, though last, was first foreclosed. Sale under it was made May 21, 1859, to said trustee, who became the purchaser for the bondholders, and the bondholders thereupon, and on May 23, 1859, organized a new company under the general statutes of this state, by. ■the name of the Milwaukee & Minnesota Railroad Company, to which Barnes conveyed the property so purchased by him. Said new company was so organized for the purpose of acquiring title to the railroad formerly owned by the said La •Crosse & Milwaukee Railroad Company, extending from Milwaukee to Portage City, in the state of Wisconsin, a distance of about 95 miles, and for operating said road and paying off said prior incumbrances.</p> <p>On October 24, 1864, for the purpose of raising money to pay off prior incumbrances upon the property of said corporation, and for other purposes of the corporation, the said Milwaukee & Minnesota Railroad Company duly executed, under its corporate seal, a trust deed whereby it conveyed all of its property and franchises to James H. Ponda and U. Hilton Scribner, of New York, to secure certain bonds ho be issued by said company to the aggregate amount of $600,000, each bond to be for $1,000, payable July 1, 1884, with, interest at the rate of eight per cent, per annum, payable semi-annually. On October 24,1864, the defendant, the Milwaukee & Minnesota Railroad Company, duly executed its bond, under its corporate seal, bearing date on that day, whereby it acknowledged itself indebted to the bearer thereof in the sum of $1,000, which sum it thereby agreed to pay to the bearer thereof on July 1, 1884, at the office of the company in New York, with interest at the rate of eight per cent, per annum, payable at the same place semi-annually, on the 1st days of January and July in each year. Said bond was duly registered and countersigned by said trustees November 8, 1864. Annexed to said bond were thirty-nine coupons for $40, each of which was payable six months after the date of the preceding one. Annexed to the same bond was one coupon for $26.67, payable January 1, 1865. On October 24,1864, the Milwaukee & Minnesota Railroad Company duly executed, under its corporate seal, 331 other bonds, bearing date on that day, and duly registered and countersigned by said trustees, of the same amount, form, tenor, and effect as the bond above described, except that each was designated by a different number, and each had forty coupons attached, of the tenor and effect of those' annexed to said bond so described. The said 331 bonds were designated by the numbers stated. On December 1,1864, the said 332 bonds were duly issued by the Milwaukee & Minnesota Railroad Company, and sold and transferred to various third parties, who paid a valuable consideration therefor. Payment of •said first series of coupons, when they fell due, was refused.</p> <p>Upon the organization of the Milwaukee & Minnesota Railroad Company, that company claimed to have succeeded to all the rights, property, and franchises of the La Crosse <& Milwaukee Railroad Company, subject to all prior mortgages and judgments. The first mortgage on the western division was subsequently foreclosed, and that division sold. Tbe purchasers at such sale thereupon organized a new company, by the name of the Milwaukee & St. Paul Railway Company, which company went into possession of that division. Subsequently, and on April 18, 1866, Frederick P. James, as the assignee of the said judgment against the La Crosse Company in favor of Newcombe Cleveland, mentioned, commenced a suit in equity in the circuit court off the United States for the district of Wisconsin, against the Milwaukee & Minnesota Railroad Company, to enforce the-lien of said judgment on the said eastern division. Such proceedings were had in that suit that January 11, 186?, a decree was entered adjudging that there was due to said James on the judgment $98,801.51, and ordering a sale of the eastern division, subject to all prior liens, for its payment. Under that decree, the property was, March 2,186?, sold and conveyed to the Milwaukee & St. Paul Railway Company, for $100,920.94, and from that time the said last-named company, whose name has since been changed to the-Chicago, Milwaukee & St. Paul Railway Company, has been in the possession of said road from Milwaukee to Portage City, as owner, under such sale and purchase.</p> <p>Since the sale of said road under said judgment and decree as aforesaid (more than twenty-six years before the-commencement of this action), the said Milwaukee & Minnesota Railroad Company has not conducted any of the ordinary business theretofore conducted by said corporation,, or any business. The law governing the election of the directors of said company, to wit, oh. 28, P. & L. Laws of 1862, provided, in effect, that the regular annual meeting of the stockholders of the Milwaukee & Minnesota Railroad Company, for the election of directors of said company,, should be held on the last Wednesday of May, at 10 o’clock in the forenoon of that day, in each year, in the city of Milwaukee; that the secretary of said company should give thirty days’ notice of the place and time of said election, in at least two newspapers, one printed in Milwaukee and tbe •other at Madison; that tbe governor should annually appoint three inspectors for said election, who should take an -oath faithfully and impartially to discharge the duties devolved upon them by said act; that the inspectors should meet at the time and place appointed for said election, and proceed to receive such votes for directors of said company •as might legally be offered and received under said act; that the board of directors of said company should consist of nine persons authorized to vote at said election, and such nine persons receiving the highest number of votes at said election should be the board until another election should, be held and their successors elected. The appellant, Dwight W. Keyes, was elected secretary of the Milwaukee & Minnesota Railroad Company at the time of its organization. He continued to act as such secretary so long as said company pretended to transact any business in Wisconsin, and was acting as such in 1865 and 1866. He was never notified of the election of any successor, and never had any knowledge or information that any other person was elected as secretary of said company. There never was after April, 1867, any meeting of the stockholders of said company, in Wisconsin or elsewhere, for the purpose of electing a board of directors, or for any other purpose. After that time there never was a meeting of the board of directors. No inspectors of election have ever been appointed since 1865. No notice of the time and place of the meeting of stockholders of said defendant for the election of directors, or for any purpose, was ever published in any newspaper in Milwaukee or Madison since 1865. No such notice has been published since 1865. Said Milwaukee &■ Minnesota Railroad Company has not, for more than twenty-six years prior to the commencement of this action, owned, possessed, or had any property within Wisconsin, nor has it been engaged in any business whatever.</p> <p>On April 12, 1893, tbe plaintiff caused, a complaint to be made out and verified against tbe said Milwaukee & Minnesota Railroad Company, .and, in addition to tbe issuance of said 332 bonds and tbe mortgage to secure tbe same and the nonpayment thereof, in effect alleged that, before tbe commencement of tbis action, tbe said 332 bonds were sold and transferred to tbis plaintiff for a valuable consideration, and be is now tbe owner thereof; that no part of tbe principal or interest thereon has been paid to him, and that there is-now due to him from said defendant, tbe Milwaukee & Minnesota Railroad Company, upon said bonds, tbe sum of $332,000, together with interest thereon from December ly 1864, and also interest upon each of said coupons from tbe date of its maturity. Judgment is demanded against tbe Milwaukee & Minnesota Railroad Company for such amount. Thereupon a summons was issued in tbis action, and delivered to tbe sheriff of Milwaukee county, who returned tbe same, with tbe following indorsement, to wit: “ State of Wisconsin, Milwaukee County — ss.: I herebjr certify that,, after due diligence, search, and inquiry, I cannot find tbe witbin-named defendant, tbe Milwaukee and Minnesota Railroad Company, within my county; and from information obtained, and I believe tbe information to be true, no officer or agent of said company upon whom to make service can be found within tbe state of Wisconsin. Miohael Dunn,. Sheriff, per HeNby J. Hollé, Undersheriff. Dated Milwaukee, May 4,1893.” , On May 5,1893, tbe summons and complaint were filed with tbe clerk of tbe circuit court for' Milwaukee county, and, upon affidavits of tbe plaintiff and bis attorney subsequently made and filed therein, tbe plaintiff obtained from a commissioner of said circuit court an order for tbe service of said summons upon tbe said Milwaukee & Minnesota Railroad Company by publication, and tbe records show that said summons was published accordingly.</p> <p>Upon affidavits showing tbe facts outside of said complaint stated, tbe said Dwight W. Keyes obtained an order, September 28,1893, ordering plaintiff to show cause why said order of publication and such service of said summons should not be set aside and held for naught. From an order dismissing said order to show cause and denying the relief therein prayed for, the' said Keyes appeals.</p> <p>argued, among other things, that the appellant had a right to be heard upon the motion to dismiss for want of jurisdiction, although he was not a party to the action. Calcmder v. Paimesville ¡& E. It. Co. 11 Ohio St. 516; Kelley v. Miss. Cent. R. Co. 2 Flip. 581; Welch v. Si. Genevieve, 1 Dill. 130; National Bcmk v. Colby, 21 Wall. 609; Greeley v. Smith, 3 Story, 657; State v. Jefferson I. Co. 60 Tex. 312. There had been at the time of the commencement of this action a suspension, by the alleged corporation, of all business and elections for more than twenty-six years, during ah of which time it had no property. This of itself is conclusive evidence of a surrender of the charter and of its acceptance by the state. Peoffle ex rel. Att'y Gen. v. Bank of Pontiao, 12 Mich. 527; Brmidon Iron Co. v. Gleason, 24 Yt. 228; Bartholomew v. Bentley, 1 Ohio St. 37; Gouldi/ng v. Clark, 34 N. H. 148; King v. Morris, 3 East, 213; S. C. 4 id. 17; Bruce v. Platt, 80 N. Y. 379; Bradt v. Benedict, 17 id. 93; Slee v. Bloom, 19 Johns. 456; S. C. 20 id. 669; Pennimarii v. Briggs, Hop. 300; Ba^ik of Poughkeepsie v. Ibbotson, 24 Wend. 473; Denike v. N. V. & R. L. & C. Co. 80 N. Y. 606; Cook, Stock (2d ed.), § 629, note 4. Under sec. 33, ch. 79, E. S. 1858, the franchises of a Wisconsin corporation could be sold under foreclosure or execution; and on such sale and the operation of the road by the purchasers* and the cessation of all business and acts by the old corporation, a surrender of the “franchise of being a corporation,” and an acceptance thereof by the state, occurs. ’ Memphis c& L. R. R. Co. v. R. R. GmrmJrs, 112 U. S. 609, 614, ■619; State ex rel Atthj Gen. v. Sherman, 22 Obio St. 411; Snell v. Chicago, 133 Ill. 413, 430. Tbe Milwaukee & Minnesota Railroad Company having been dissolved as early as 1868, and more than three years having elapsed since the dissolution, it cannot be sued, and if judgment should be entered .against it in this action such judgment would be void. Von Glahn v. De Rosset, 81 N. C. 467, 469; Merrill v. Suffolk Bank, 31 Me. 57. If the respondent has an existing Iona fide debt against the deceased corporation, and the stockholders have not paid in full for their stock, or if there is property in the possession or under the control of any person or corporation which, for any reason, ought to be applied to the payment of the debts of the deceased corporation, a court of equity would have jurisdiction to give relief in some appropriate manner. Folger v. Colvmibicm Ins. Co. 99 Mass. 276.</p> <p>contended, inter alia, that the cases cited by appellant fad to sustain his contention that the Milwaukee & Minnesota Railroad Company is dissolved. The New York cases are of two classes: First, cases where the courts have held that a corporation, within the facts of the particular case, was so far dissolved that a creditor could pursue his remedy against a stockholder as to debts owing by the corporation at the time of its dissolution, without obtaining or awaiting á formal dissolution. Second, where it was attempted to enforce against trustees of a corporation a harsh remedy given by a penal statute, on the ground that the corporation had failed, after it had become insolvent and ceased to do any business, to make and publish a report of its condition, as required by statute; and the courts held that the insolvency and abandonment of business so far dissolved the corporation as to render it useless and unnecessary for it to make any report. And in Mickles v. Rochester O. Bank, 11 Paigej 118, the courts of the same state have decided in express terms that until a corporation has been judicially declared dissolved any creditor may proceed by suit against it to collect Ms debt. The clear meaning and intent of sec. 33, ch. 79, E. S. 1858, are to empower a railroad company to mortgage, and the purchaser at the foreclosure sale to acquire, the franchise of the company to maintain and operate a road, and not the francMse to be a corporation. The franchise to be a corporation is not a subject of sale and transfer, unless the law, by some positive provision, has made it so and pointed _ out the modes in which such sale and transfer may be effected. After an act of disposition which separates the franchise to maintain a road and make profit from its use, ■from the franchise of being a corporation, though a judgment of dissolution may be authorized, yet, until there be .such judgment, the rights of the corporators and of third persons may require that the corporation be considered as still existing. Memphis <& L. B. B. Go. v. B. B. Oomm’rs, 112 TJ. S. 009; Goe v. O., P. & 1. B. Co. 10 Ohio St. 372; Snell v. Chicago, 133 Ill. 413, 428. If, however, the railroad company was empowered by the statute to. mortgage its franchise to be a corporation, and such franchise would pass to the purchaser, that law has no application to tMs case, because the franchises of the Milwaukee & Minnesota Railroad Company were never mortgaged and never sold. A corporation does not become dissolved by misuser or nonuser of ■its franchises; by the loss of all its property; by insolvency; by a voluntary assignment of all its assets; by the appointment of a receiver; by failure to elect directors or officers; ■or, so far as affects the rights.of creditors to bring suit against it, by any means short of a surrender of its franchise to the state and an acceptance by the state of such surrender, or by the judgment of a court of competent jurisdiction declaring such dissolution. Boston Glass Mfg. Go. v. Ltmg-don, 24 Pick. 49; Oobv/rn v. Boston P. M. Mfg. Go. 10 Gray, .243; Foster v. Essex Banlc, 16 Mass. 245; Ohamberlin v. Huguenot Mfg. Co. 118 id. 532; State Nat. Bank v. Ribi-doux, 57 JVIo. 446; Kansas City Hotel Co. v. Saner, 65 id. 279 Valley B. & 8. Inst. v. Ladies' Cong. 8. Soc. 28 Kan. 423; Cocivran v. Arnold, 58 Pa. St. 399; Hamilton v. Clarion, etc.R. Co. 144 id. 34; Atlanta v. Gate City G. L. Co. 71 G-a. 106; Barren Creek D. Co. v. Beck, 99 Ind. 247; Russell v. Mc-Lellan, 14 Piclc. 63; Oakes v. Hill, id. 442; Rollins v. Clay,. 33 Me. 132; Penobscot Boom Corp. v. Ramson, 16 id. 224, Hodsdon v. Copeland, id. 314; Proffrs of B. M. House v. Webb, 66 id. 398; ReieJiwald v. Comm. Hotel Co. 106 III. 439; Town v. Bank of River Raisin, 2 Doug’. 530; B%iell v. Buckingham & Co. 16 Iowa, 284. A claim of forfeiture of a franchise, or dissolution of a corporation by misuser or nonuser of its franchises, cannot be raised collaterally. The-default must be judicially determined in a suit brought for that purpose. Toledo dé A. A. R. Co. v. Johnson, 49 Mich.. 148; Brooklyn 8. T. Co. v. Brooklyn, 78 N. Y. 524; Bay v. 0. <& L. C. R. Co. 107 id. 129; Mickles v. Rochester C. Bank, 11 Paige, 118; Kincaid v. Dwindle, 59 id. 548; Moseby v.. Burrow, 52 Tex. 396; Jeffersmvville R. Go. v. Applegate, 10 Ind. 49; Bohannon v. Bums, 31 Miss. 355; Revere v. Boston-Copper Co. 15 Pick. 351; Allen v. N. J. 8. R. Co. 49 How. Pr. 14; Hverts v. Killingworth Mfg. Co. 20 Conn. 447; En-field T. B. Co. v. Conn. Ri/oer Co. 7 id. 28; King v. Amery,. 2 Term, 515; 8lee v. Bloom, 5 Johns. Ch. 366; Terrett v. Taylor, 9 Cranch, 51; Comm. v. TJnion F. & M. Ins. Co. 5-Mass. 230; Sleeper v. Goodwin, 67 Wis. 577; 2 Kent, Comm... *312; Brandon Iron Co. v. Gleason, 24 Yt. 228; Wilde v.. Jenkins, 4 Paige, 481.</p>

<p>Appeal from a part of a judgment of the circuit court for Milwaukee county: D. H. JohNsoN, Circuit Judge.</p> <p>In 1880 the Milwaukee & Northern Eailroad Company •duly made, executed, and delivered a first mortgage on that part of its line of railway from Schwartzburg to Green Bay, ■with a branch to Neenah, Menasha, and Appleton, at the rate of $17,000 per mile, and the same was duly recorded. •On February 11, 1884, it duly made and executed a second •consolidatedmortgageonthe line extending from Schwartz-burg to Green Bay, Menasha, and Appleton,, and the same was also a first mortgage on all the rest of the road, extending (with a break in the Ontonagon line) to Lake Superior; and this mortgage was duly recorded; and that railroad company covenanted therein with the trustees that they would, by construction or consolidation or purchase, construct and acquire a railroad from Schwartzburg to Lake Superior and bring it under the lien of that mortgage. Said second mortgage provided that under it bonds might be issued, numbered from 1 to 2,155, respectively, to take up the mortgage of 1880, mentioned, and which bonds could •only be issued for retiring the bonds issued under the mortgage executed in 1880. It also provided for an issue of 500 bonds, numbered from 2,156 to 2,655 inclusive, for acquiring- right of way and depot grounds in the city of Milwaukee {not in any way involved in this litigation). It also provided for an issue of bonds numbered consecutively from 2,656 to 2,855, to be used for the construction of ore docks (not in any way involved in this litigation). It also provided for an issue of bonds to be numbered consecutively 2,856, and so on, to be issued at the rate of $17,000 per mile of completed road,— main line a/nd branches,— as fast as the road should be completed and the completion thereof certified as required.</p> <p>On August 8, 1890, the several defendants, as trustees,- . executors, or as individuáis, as parties of the first part, entered into a written agreement with Roswell Miller of Chicago, as party of the second part, wherein it was recited and agreed, in effect, that the defendants were the owners of 50,000 shares, more or less, of the capital stock of the Milwaukee & Northern Railroad Company, and 1,905 shares-of the capital stock of the Ontonagon & Brule River Railroad Company, and of 2,125 shares of the capital stock of the Oconto & Southwestern Railroad Company; that the-total capital stock of the Milwaukee & Northern Railroad Company was 51,552£ shares, and that the total capital stock of the Ontonagon & Brule River Railroad Companj' was 1,905 shares; that the total capital stock of the Oconto- & Southwestern Railroad Company was 2,125 shares,— all of the par value of $100 each; that the capital stock of the two last named railroad companies was convertible into the-capital stock, share for share, of the Milwaukee & Northern Railroad Company; that the defendants were willing to-give to said Miller the right to buy said shares of railroad-stock owned by them as aforesaid, upon the terms and conditions therein set forth. In consideration of the terms therein contained, and of the sum of one dollar in hand paid by said Miller, the receipt of which was therein duly acknowledged, it was mutually agreed that the defendants agreed, for themselves, their executors, administrators, and assigns, to give, grant, and they did thereby give and grant, unto the said Miller or his assigns, the right to purchase all of said capital stock of the above-named railroad companies, which was then owned by them as above, provided the said Miller should, on or before September 30, 1890, by written notice addressed to Alfred M. Hoyt, and delivered at his office, No. 1 Broadway, in the city of New York, or addressed to Angus Smith, and delivered at his office, in Milwaukee, agree to accept and pay for the same according to the terms and conditions therein contained; that the def endants agreed, upon tbe delivery of snob written notice at tbe places above named, or at either of them, within tbe times specified, that they Avould at once deliver to tbe said Miller, or bis duly authorized agent or assigns, tbe total amount of capital stock of tbe Milwaukee & Northern Bail-road Company then owned by them, said amount being .about 50,000 shares, more or less, and that they would within a reasonable time, unless previously done, lawfully convert, or procure to be converted, tbe 7,905 shares of tbe capital stock of tbe Ontonagon & Brule Biver Bailroad Company, and tbe 2,125 shares -of tbe capital stock of tbe Oconto & Southwestern Bailroad Company, into an equal number of shares of tbe capital stock of tbe Milwaukee & Northern Bailroad Company, and would deliver to said Miller tbe 10,030 shares of tbe capital stock of tbe Milwaukee & Northern Bailroad Company thus obtained. Tbe delivery of all of said capital stock by tbe defendants to said Miller was to be made at tbe office of tbe plaintiff in tbe city of New York! Tbe following is a complete copy of tbe third paragraph: “ (3) Tbe parties of tbe first part [tbe defendants] further agree that tbe capital stock of said railroad companies is .subject only to a first mortgage at tbe rate of $17,000 per mile, issued or to be issued upon an aggregate mileage for tbe three railroads named of three hundred and sixty-two and one-fourth (362J) miles of main line completed railway, and subject further to an equipment mortgage of $400,000, issued or to be issued, (and to tbe liabilities incurred in tbe operation of tbe road, which shall not exceed tbe amount( of cash receivables and operating suppbes then belonging to tbe company); and that, with the exception of the above indebtedness, said railroad companies shall have, in case this option is exercised by tbe party of tbe second part [Miller], no other indebtedness; and that all the trades, depots, real estate, and equipment, except tbe equipment represented by tbe equipment mortgage aforesaid, shall likewise be free from a/ny debt or ineumbrcmces except as above specified</p> <p>The said agreement further provided, in effect, that the-defendants thereby guarantied that, if the said Miller elected to purchase the capital stock of the three railroad companies-as therein provided, he should have the privilege of taking" the aforesaid equipment bonds, amounting to $100,000, upon prepayment to the party or parties who might have -advanced money thereon, together with six per cent, interest from the date of such advances until the date of payment;, that the defendants further agreed that, in case said Miller' should exercise the right of purchase therein contained, the-said defendants should, immediately upon the delivery of' the purchased stock, procure the substitution in the board of directors of the Milwaukee & Northern Railroad Company of such persons as the said Miller might designate; that he agreed that if he should elect on or before September 30, 1890, to exercise the option therein contained, and to purchase the said shares of the capital stock of the Milwaukee & Northern Railroad Company as above provided, and if the defendants should, according to the terms-thereof, make good delivery of not less than 59,000 shares of the capital stock of the Milwaukee & Northern Railroad Company, then he agreed to pay for the same on or before September 30, 1890, upon the following terms, viz.: One share of the capital stock, known as the common stock, of the Chicago, Milwaukee & St. Paul Railway Company, for each share of the capital stock of the Milwaukee & Northern Railroad Company so delivered; or the said Miller might, at his option, have the right to pay for said capital stock in cash at the rate of $10 per share, instead of in the capital stock of the plaintiff company; that if said Miller should elect not to exercise the option therein contained, and not to purchase said shares of the capital stock of the Milwaukee & Northern Railroad Company, then said agreement should expire by limitation at 12 o’clock midnight of September 30, 1890,. and there should be no claim by either party against the other under or growing out of the provisions of said option agreement or any of them.</p> <p>Said Miller subsequently, and upon the agreement being-signed by all the defendants and himself, assigned the said option agreement to the plaintiff, and the plaintiff thereupon,, before the expiration of said option, notified the defendants-that it would exercise the option of exchanging the stock. At the time of the exercise of the option by the plaintiff the said Milwaukee & Northern Railroad Company had acquired the-other two roads and the stock of the other two companies in said option named, and was the owner of 362£miles main line completed road. There was outstanding upon the same two-mortgages, the first covering the division from Schwartz-burg to Green Bay, and the second covering the whole road,, under which bonds had been issued at the rate of $17,000 per mile; being 6,158 bonds of $1,000 each, 5,151 of which had been issued prior to said agreement,-and 1,007 of which were issued after the execution of said agreement, making-in all $6,158,000 which is $250 less than at the rate of $17,000’ per mile of such completed road, the interest upon which had been paid up to June 1, 1890. On September 30, 1890,. the said Alfred M. Hoyt met the vice president of said plaintiff, and thereupon said vice president paid to said Hoyt, for the defendants in this action, the said sum of $250 for such excess, and the said Hoyt thereupon delivered to said vice-president of the plaintiff 61,168.71 shares of the stock of the Milwaukee & Northern Railroad Company, and received from him in exchange therefor 61,168 shares of the stock of the said plaintiff, and $49 for the -JoV of a share of stock of the Milwaukee & Northern Railroad Company in excess of the amount of stock of the plaintiff company delivered to said Hoyt by said vice president. On September 30, 1890, the plaintiff became the sole owner and holder of said 61,168.71 shares of the capital stock of said Milwaukee & Northern Railroad Company, and also the sole owner of all the shares of the capital stock of said Milwaukee & Northern Railroad Company.</p> <p>Said amount of $6,158,000 of bonds were ordinary coupon bonds, and interest had been accruing thereon from June 1, 1890, and there had accrued thereon, up to the tune of such exchange of stock, the amount of $123,160, being four months’ interest, at six per cent, per annum, upon all said bonded debt, which interest matured on the 1st of December following, and was paid at maturity by the plaintiff, in behalf of the Milwaukee &’Northern Railroad Company, upon the presentation of the coupons therefor from said bonds. The excess of liabilities incurred in operating the Milwaukee & Northern Railroad at the time of the exchange of stock, over and above the amount of cash assets and operating supplies, was $17,000. At the time of the exchange of stock there were outstanding six coupons from bonds secured from said mortgage, due June 1, 1890, which the holders thereof had not presented to the Milwaukee & Northern Railroad Company for payment, which have since been presented to and paid by the plaintiff in behalf of that company.</p> <p>On March 3, 1892, the plaintiff commenced this action to recover said $123,160 back interest, and the amount of the six outstanding coupons mentioned, amounting to $180, making in all $123,340 unpaid interest, and said sum of $17,000 in excess of operating liabilities over and above cash .assets and operating supplies. The defendants answered by way of admissions, denials, and counter-allegations. A jury was waived, and the cause was tried by the court. At the ■close of the trial the court found, among other things, the facts stated, and as conclusions of law the court found, in effect, that the plaintiff was entitled to recover said sum of $17,000, and directed judgment in favor of the plaintiff for that amount, but also found that the plaintiff was not entitled to recover the said sum. of $123,340, or any part thereof; and judgment was thereupon ordered and entered accordingly. Erom so much and such part of said judgment as adjudges that the plaintiff is not entitled to recover said sum of $123,340, with interest, as prayed, the plaintiff appeals.</p>

<p> Adverse possession: Evidence: Interruption: Taclcing possession of successive occupants. </p> <p>1. Evidence of adverse possession of land from about May 1, 1866, to about May 1,1886, is not sufficient to show such possession for the statutory period of twenty years.</p> <p>2. Any interruption or discontinuance of adverse possession, before it has continued for the statutory period, restores the seisin and possession to the rightful owner.</p> <p>8. To create such privity as will enable an occupant of land to tack his possession to that of a prior occupant, so as to make it a continuous adverse possession for the statutory period, there need not be a conveyance in writing, hut it must clearly appear that the particular premises in dispute were in fact embraced in the transfer.</p> <p>4. The owners of certain land, who had occupied also an adjoining-strip, leased to one G. and afterwards conveyed to the defendant, to whom G. attorned. The deed to defendant did not cover the strip of land mentioned, but the grantor subsequently quitclaimed it to him. There was evidence tending to show that the lease to G. was in writing, hut it was not produced, and it did not appear that the leasing extended to said strip. Held, that defendant could not tack G.’s possession of the strip to that of his grantors.</p>

<p> Municipal corporations: Street improvements: Change of grade: Special assessment: Milwaukee charter construed: Remedy, when assessment void. </p> <p>1. Under secs. 7, 8, subch. 7, of the Milwaukee charter (Laws of 1874, ch. 184), in a case where the established grade is altered in improving a street, it is essential to the validity of the assessment against a lot for such improvement that it shall show upon its face that the provisions of law for the benefit of the lot owner have been observed, and that the board of public works has considered and passed upon, not only the question of benefits and injuries resulting from the improvement, but also the question of damages, costs, and charges by way of compensation for the alteration of grade.</p> <p>2. If defects in the assessment in these particulars affect its substantial justice, it is not aided by sec. 35, subch. 18, of the charter, making certain directions .for the assessing of land and levying and collecting of taxes and assessments directory only.</p> <p>3. Where the assessment in such a case is voi'd, the lot owner need not appeal therefrom, as provided in secs. 11,12, subch. 7, of the charter, but may proceed in equity to set aside a tax sale and certificate based thereon.</p>

N. Austikt, Judge. Tbis action was commenced in a justice’s court on an account for goods sold. Tbe defendants set up a defense of tbe nonjoinder of a necessary party defendant, in that tbe-goods bad been sold to a copartnership consisting of tbe defendants and one Levy, under tbe firm name of Docter Bros. & Co. Tbe cause was tried in justice’s court, and resulted in a judgment for tbe plaintiff. Tbe defendants-appealed to tbe superior court.

<p> Voluntary assignment: Payment of taxes on stock pledged by assignor. </p> <p>Sec. 1700, S. & B. Ann. Stats., providing that an assignee for the benefit of creditors, before making any dividend, “ shall pay alii taxes assessed upon the property assigned, which remain unpaid,” does not require him to pay, out of other funds, the taxes on bank stock which had been pledged by his assignor for more than its value.</p>

<p> Pleading: Appealable order. </p> <p>An order denying a motion to strike out a part of the answer as scandalous, irrelevant, and redundant, is not appealable.</p>

<p> Criminal law and practice: Suspended execution of sentence: Subsequent enforcement. </p> <p>1. After sentence has been pronounced in a criminal case tbe court cannot, as a matter of leniency to the defendant, suspend indefinitely its execution.</p> <p>2. A defendant was sentenced to pay a fine and the costs and to stand committed to jail until payment, the period of imprisonment being limited to six months; and the court directed that if the costs were paid at once the sentence of imprisonment be suspended until further order. The defendant paid the costs accordingly, but failed to pay the fine. Held, that an order, made more than six months later, that defendant pay the fine and stand committed, to jail until payment in accordance with said sentence, was without authority.</p> <p>As to tlie right to suspend sentence, see note to People v. Cummings, 14 L. E. A. 285, and to People ex rel. Forsyth v. Court of Sessions, 23 id. 856. — Eep.</p>

<p>MAndamus to the municipal court of the city and county of Milwaukee, and to Emil Wallber, judge of said court.</p> <p>This is an action of ma/ndamus. One John H. Sheldon was convicted by the verdict of a jury, in the municipal ■court of the city and county of Milwaukee, of having sold intoxicating liquors without a license, contrary to the provisions of an ordinance of the city. A motion for sentence on the verdict was denied. The verdict was set aside, and a new trial granted: On the application of the city attorney this court issued an alternative writ of mwndamus directing the municipal court forthwith to sentence the said John H. Sheldon upon the verdict of the jury, or to show cause to the contrary. The trial is upon a demurrer to the alternative writ. The question at issue is the power of the municipal court to set aside the verdict of a jury and to grant a new trial in a prosecution for the breach of an ordinance of the city, which is, at the sáme time, a misdemeanor under ■the statute of the state.</p> <p>■ contended: (1) The jurisdiction of the municipal court of prosecutions for violation of city ordinances is statutory, special, and limited, and the ^proceedings on such prosecutions are summary. (2) When such a special jurisdiction exists it can only be exercised in the manner pointed out in the statute, and the rules of procedure must be strictly observed. Horr & B. Mun. Police Ordinances, § 203; Carson ■<o. JBloommgton, 6 IU. App. 481; Tiedeman, Mun. Corp. .§104; Dillon, Mun. Corp. § 430; Sutherland, Stat. Const. '§ 391, and cases cited. (3) No power is conferred upon the : municipal court by the statutes giving it jurisdiction for prosecutions for violations of city ordinances to grant a new trial to a defendant convicted of such a violation. (4) Mcm~ damns lies to compel the court to sentence a defendant upon ,the verdict of a jury, where the court has no power to grant a new trial. People v. Justices of Sessions, 1 Johns. Cas. 179; Judges of Oneida Common Pleas v. People ex rel. Sewage, 18 Wend. 79-93; Slate ex rel. Brcdncvrd v. Adams, 12'. Mo. App. 436; Brown v. Kalamazoo Oireuit Judge, -75 Mich. 214; People ex rel. Posenfeld v. Graham, 16 Colo. 347;. People ex rel. Benton v. Mo'ivroe Go. Gt. of Sessions, 46 N. Y. St. Bep. 255; State v. Shea, 95 Mo. 85; Pegalow v. State, 2D Wis. 61; People v. Borle, 96 N. Y. 188.</p>

<p> Equity: Following trust fund: Insolvent bank: Priority of payment. </p> <p>1. The beneficiary or owner of a trust fund cannot regain it out of the estate of an insolvent trustee unless it can be identified or traced into some specific substituted property.</p> <p>3. Moneys belonging to infants were deposited to the credit of their guardian, as such, in a bank which was then, to the knowledge of its officers, insolvent. Prom that time until the bank suspended payment the deposits therein and the payments to depositors and for other debts and expenses were about equal, and during that period the bank also made loans upon securities. When the bank suspended the securities passed to the receiver, but there was little money left. The moneys of the infants so deposited were not shown to have been paid out to depositors or other creditors or for expenses, nor could they be traced into the said securities or any part thereof. Other similar trust funds deposited in the bank amounted to more than the sum represented by said securities. Held, that it could not be presumed that the securities represented the particular trust fund belonging to said infants, and that therefore their claim stands upon the game basis as the claims of general creditors.</p>

<p>Appeal from a judgment of tbe superior court of Milwaukee county: R. N. AustiN, Judge.</p> <p>This is an action to recover for personal injuries which the plaintiff claims that he received by accidental contact with a telephone wire which had fallen upon the defendant’s trolley wire and so become heavily charged with electricity. The negligence imputed to the defendant is its omission to place guard wires over its trolley wires, so as to prevent the telephone wire from coming in contact with them.</p> <p>The defendant owns and operates an electric railway along Third street in the city of Milwaukee. Third street runs north and south. Green Bay avenue crosses Third street at an acute angle, running* northwest and southeast. The tracks of the defendant’s road extend northerly on Third street to a point north of its intersection with Green Bay avenue. On the east side of Third street, opposite to the opening of Green Bay avenue, are the defendant’s car barns. At this point the overhead trolley wires are supported by cross wires attached to posts on either side of Third street. Near the southwest corner of the car barn, on the east side of Third street, is a telephone pole. From this pole the telephone wire runs diagonally across Third street to a pole standing-in the sharp angle between Third street and Green Bay avenue. Thence it runs diagonally across Green Bay avenue to a pole on the west side of the avenue, about 100 yards north of the pole on the sharp angle. These poles carried the wire about thirty feet above the ground and about ten feet above the trolley wires. The telephone wire crosses the trolley wires diagonally. There were no guard wires over the trolley wires.</p> <p>■ At tbe time of plaintiff’s accident the telephone wire was broken, and had fallen upon and lay in contact with the trolley wire, and had become and was charged with electricity by such contact. It does not appear that the fact that the telephone wire was broken was known to any of the defendant’s employees, nor that any negligence on their part had caused the breakage. The end of the telephone wire so charged with electricity passed along Green Bay avenue, in some places lying upon and in the street. It was in the evening, and after dark. The plaintiff was driving along the avenue with his horse and vehicle. His horse came in contact with the wire, received a shock, and fell. The plaintiff was thrown from his vehicle. He is supposed to have received an electric shock both before and after he left the vehicle. He appears to have received considerable injury.</p> <p>The telephone wire carries so small a current of electricity as not to be, of itself, dangerous. The trolley wires carry a much larger current of electricity. By contact with the trolley wire the telephone wire may become so highly charged as to become dangerous. The telephone wire was not owned by, nor in any manner under the control of, the defendant. It is unexplained what occasioned the breaking of the telephone wire. It did not break in the span which carried it over and across the trolley wires, but in the next span beyond. It could not have come in contact with the trolley wires had not the fastening of the telephone wire to its pole become so loosened that the wire slipped and the portion over the trolley wires sagged so as to bring it in contact with the trolley wires.</p> <p>There was a special verdict and judgment for the plaintiff. The defendant appeals.</p> <p>contended, inter alia, that it was not error to permit Dr. Becker to testify that “ it is reasonably probable that there will be no complete recovery.” Griswold v. N. Y. G. (& R. R. R. Go. 115 N. T. 61; McLain v. Brooklyn G. R. Go. 116 id. 459, 468; Alberti v. N. Y., L. F. <& W. R. Go. 118 id. 77; Wright v. Hardy, 22 Wis. 348; Abbot v. Dwinnell, 74 id. 514, 520, 521, 522. This case is within the rule of State ex rel. Wis. Tel. Go. v. Janesville St. R. Co. 87 Wis. 72. The statute (sec. 1862, R. S.) required defendant to use the most approved plan of construction. Such plan included the maintenance of guard wires, as was shown by the testimony. And the failure to use such plan was negligence. Ha/ynes v. Raleigh Q. Go. 114 N. C. 203; Gleason v. Ya. M. R. Go. 140 U. S. 859; Kraatz v. Brush F. L. Go. 82 Mich. 457; Oentral P. T. <& S. Go. v. W. de W. S. R. Co. 11 Pa. Co. 417, 1 Pa. Dist. 628; Fleet/ric R. Go. v. Shelton, 89 Tenn. 423; Boiorgetv. Cambridge, 156 Mass. 390; Cohen v. New Yorh, 113 N. Y. 532, 538; Fitts v. Cream Git/y R. Go. 59 Wis. 323; Burt v. Douglas Go. St. R. Go. 83 id. 229, 232; McChvre <o. Sparta, 84 id. 269, 272; Augusta R. Go. v. Andrews, 89 Ga. 653; Booth, St. Railway Law, § 292; Keas-bey, Electric Wires, 154, 155.</p>

<p> Equity: Insolvent bank: Trust fund: Proceeds of draft collected: Priority of payment. </p> <p>Í. A Milwaukee bank sent a draft which it had received for collection to a Chicago bank for collection and credit. Its account with the Chicago bank was then overdrawn, but the latter held collaterals to secure it against such overdrafts. The Chicago bank collected •the draft and credited the proceeds on said account. In the meantime the Milwaukee bank failed. Held, that the owner of the draft was not entitled to a preference of payment out of the assets of the Milwaukee bank in the hands of the receiver, the proceeds of the draft not being traceable into any of such assets.</p> <p>2. The receiver not having redeemed the collaterals in the Chicago bank and being under no obligation to do so, if the proceeds of the draft can be said to have been traced into such collaterals the remedy is against them and not against the general assets.</p>

<p>Promissory notes: Accommodation paper: Bona fide holder.</p> <p>1. Where an accommodation indorser of a note indorses successive notes in renewal thereof, each as the previous note becomes due, his liability will be regarded as a continuous one without hiatus.</p> <p>2. One to whom an accommodation note is transferred in good faith before due as collateral security against his pre-existing liability as indorser of another note, and who in consideration of such transfer definitely extends the duration of his liability by indorsing a renewal of such other note, is a bona fide holder of the accommodation note for value before due.</p> <p>[3. Whether the transferee of accommodation paper must be a bona fide holder before due in order to recover upon it, not determined.]</p>

<p>Adverse possession: Character of entry: Conveyance to and by defacto corporation: Estoppel.</p> <p>1. Whether an entry by one person -upon the lands of another without any agreement is an ouster of the legal possession arising from the title or is in subordination to such title depends upon the intention with which the entry is made and is usually a question of fact for the jury.</p> <p>2. Where land is conveyed by the owner to a de facto corporation, which thereupon claims it as a corporation and afterwards conveys it, the title passes to its grantee, as against one whose only claim to the land is based upon an alleged adverse possession not founded on any written instrument.</p> <p>■13. The parties to an action of ejectment had executed a written agreement by which defendant was to hold the premises' under the plaintiff as the owner thereof and as his tenant and to vacate upon six months’ notice, and upon such notice being given was to have the right to remove the buildings on the premises within six months. Held, that defendant was estopped thereby to deny that plaintiff was the owner of the land.</p>

H. Johnson, Circuit Judge. Action by TheMa Renner, widow, and Franh Benner • and John W. Bermer, by his guardian, children of John Benner, deceased, against the Supreme Lodge of the Bo-Jiemicm Slavonian Benmolent Society of the United States (O. S. P. N), to recover $1,000 death benefit claimed to be ■ due and payable by the defendant association according to its charter and constitution to the plaintiffs, the widow and 'Children of John Benner, deceased.

W. BukNell, Circuit Judge. Tbe plaintiff was tbe owner of a sawmill in Osbkosb, and engaged in tbe manufacture of lumber. A. W. Jones and W. II. Wyman were copartners in trade and business, and engaged in the manufacture and sale of matches at Osbkosb, under tbe firm name and style of tbe Oshkosh Match Company. Jones’s interest therein was three fifths and Wy-man’s interest two fifths.

W. BuiíNicll, Circuit Judge. This was an assessment of damages under sec. 2747, R. S. The plaintiff sued out a writ of attachment against the defendants upon a demand not yet due, and the sheriff seized under the writ a large lot of cranberries and other property belonging to the defendants in a certain warehouse. Eour '■days later the property was entirely destroyed by fire while in the sheriff’s possession.

Ereob to review a judgment of tbe circuit court for Winnebago county: G-eo. W. BueNell, Circuit Judge.

' Appeal from á judgment of- the county court óf Winhe-■bago county: 0. D. OlevelaNd, Judge. Peter Schmit, Henry Schmit, and William Poole were co-partners doing business under the firm name of Schmit Bros. & Oo.; and J. B. Everett was the owner in fee of the lands described.

■ Appeal from a judgment of the circuit court, for Winnebago county: Geo. W. BueNell, Oircuit Judge. This action is for trespass to the plaintiff’s freehold, the N. E. J of the S. W. J of section 36 in the town of Nepeus-kun, January 15, 1893, and for cutting down and carrying away certain willow trees thereon; and the answer was a general denial.

W. Buknell, Circuit Judge. The action is to set aside a special assessment tax, to cancel a tax certificate issued thereon, and to restrain the execution of a tax deed on such certificate. The plaintiff is a railway company, having a right of way and roadbed and tracks along Ceape street, in the city of Oshkosh, near the center of the street. The board of aldermen paved and curbed Ceape street with cedar blocks.

W. BueNell, Circuit Judge. Tbe complaint in this action charges that on the 6th day of August, 1893, the defendant was the owner of a steamboat and a common carrier of passengers for hire by said steamboat on Lake Winnebago, from Oshkosh to Stock-bridge, and that on said day the plaintiff was received as a passenger upon said boat for hire; “ that the said defendant, being under obligations towards said plaintiff of common carrier of passengers in respect to said passage, so…

W. BueNell, Circuit Judge. This is an action of trover brought to recover the value of a note and mortgage and the sum of $450, which the plaintiff claims that the defendant has converted. The plaintiff is a married woman. Her husband, William Bolde-wahn, was arrested in a civil action and required to furnish bail in the sum of $1,000. Eor want of bail he was in jail.

D. Cleveland, Judge. On June 4, 1881, one Charles E. Warner bought a buggy from the plaintiff, and to secure the payment of $35 of the purchase price thereof gave back to the plaintiff a note for that amount, secured by a chattel mortgage on the buggy and certain crops. Said mortgage was filed June 6,1881. Thereupon Warner sold the buggy to Julius Stevens, who-died soon after.

W. BubNelb, Circuit Judge. ■ This action was brought to obtain a perpetual injunction against the defendant,' its officers, agents, etc., restraining’ them from opening or attempting to open Ilenry street between High street and Pearl street in said city, and from removing or attempting to remove the fences and buildings within the said limits of Henry street.

S. GilsoN, Circuit Judge. This is an. action for divorce, commenced by the husband,, on tbe ground of cruel and inhuman treatment. It appears-that the parties were married in 1848, and are now sixty-two years of age, and that their children are all adults. On the trial much testimony was produced as to the alleged cruel and inhuman treatment, but it is not necessary to state it here.

S. G-ilsoN, Circuit Judge. This is ail appeal from an order overruling a demurrer to the complaint. The complaint shows that the city of Mrnii-towoe is divided into two parts by the Manitowoc river, a navigable stream, which flows through it. The city has erected and maintains a drawbridge across that stream for the purpose of making a highway connection between the two parts of the city. This constitutes one of the principally traveled highways of the city.

S. GilsoN, Circuit Judge. On April 1, 1880, John Bertschy gave the Bernik of She-boxjgcm a bond for $50,000, conditioned for the payment of a large amount of indebtedness then due from him to the bank, and for further advances thereafter to be made.

EeeoR to review a judgment of the circuit court for Dane county: R. Gr. Siebeoker, Circuit Judge. The plaintiff in error was convicted of selling a pint of whisky to one Eddie Erdahl on the 29th day of October, 1892, without license. The plaintiff in error had a place of business in the village of Stoughton, which had previously been a saloon, but it was admitted that at the time in question he had no license to sell intoxicating liquors.

Appeals from a judgment and several orders of the circuit court for Eau Claire county: W. E. Bailey, Circuit Judge.

II. JoiiNSON, Circuit Judge. This action is to recover damages for personal injuries sustained by the plaintiff, January 23,1881, by reason of an ■alleged defective sidewalk. The answer' consists of admissions and denials and an allegation of contributory negligence. At the close of the trial the court directed a verdict in favor of the defendant, for the reason that the notice given failed to describe the defect in the sidewalk which had been proved upon the trial.

N. Austin, Judge. Action to recover past-due interest upon a land contract. In July, 1892, tbe plaintiffs owned a large tract of land in tbe town of Wauwatosa, adjacent to tbe city of Milwaukee, wbicb bad recently been platted into lots and blocks.

H. JohNSON, Circuit Judge. This was an appeal to the circuit court from an assessment of benefits made September 1, 1891, upon a strip of land owned by the appellant in fee and used in part for its tracks and as a right of way for railroad purposes, abutting upon the northerly side of Commerce street, and extending from the northeast corner of lot 14, in subdivision of lots 2 and 3, section 21, in Milwaukee, to the northwest corner of block 5, in the Sixth ward of said city,…

H. JohNSON, Circuit Judge. The plaintiff is a married womah, the wife of one Mark Tyson. Mark Tyson was a member of a partnership under the style, Tyson, Conrad & Co. Tyson, Conrad & Co., by an agreement in writing, sold their business and plant, a sash and door factory, to another firm, consisting of the defendant Romney, John S. George, and Thomas Shea.

H. JOHNSON, Circuit Judge. Personal injuries. Tbe defendant owns and operates a foundry and machine shop in Milwaukee. Plaintiff was a Norwegian by birth, and was twenty-four years old at the time of the accident. At the age of sixteen years he became a sailor, and sailed for a number of years upon the ocean, and subsequently upon the Great Lakes, working as a common laborer in the winter.

<p> Telegraph companies: Delay in delivering message: Damages: Evidence. </p> <p>A debtor in this state, wishing the assistance of a creditor residing in Kansas in settling some pressing demands, telegraphed him “You must come at once.” Through a mistake in the name of the addressee the message was not delivered for four or five days, and the creditor did not reach his debtor until nine days after the message was sent. In the meantime attachments sufficient to exhaust all the debtor’s property had been levied, and the Kansas creditor was able to collect but a small part of his claim. In an action by him against the telegraph company for the amount of his loss, there was no evidence that he could or would have come at once if the telegram had been promptly delivered, or that if he had come he could have collected or obtained security for his claim. Held, that a nonsuit was properly granted.</p>

N. Austin, Judge. The plaintiffs had recovered a judgment against the principal defendants, Loy and Whalen, for $305.20, and the latter held a pillage order directing the treasurer of the village of South Milwaukee to pay to them, or order, $386.

C. Ludwig, Judge. This is an action against the appellant as garnishee of the C. 0. Schwartz Stove Company. The 0. O. Schwartz Stove Company is a trading corporation.

Appeals from a judgment of the circuit court for Winnebago county: Geo. W. BubNell, Circuit Judge. On December 29, 1888, the plaintiff fell and was injured by reason of an alleged defect in the sidewalk in front of tbe block owned by the defendant Beckwith, in the defendant city.

D. Cleveland, Judge. Action by tbe receiver of an insolvent foreign mutual insurance company to recover an assessment made upon policy holders. Tbe Consolidated Mutual Eire Insurance Company was an Illinois corporation, having its principal office at Chicago, and it never complied with the laws of the state of Wisconsin relating to foreign insurance companies doing business within this state, and consequently had no license to transact such business.

S. G-ilsoN, Circuit Judge. This was an action of trespass for breaking and entering tbe plaintiff’s close, namely, a strip of land one rod in width on tbe east side of tbe S. E. J of tbe N. W. ¿ of section 15, township 20, range 23, commencing at tbe northeast corner of said tract, and extending south about seventy-two rods. Tbe action originated in justice’s court, from which it was removed to tbe circuit court by tbe defendant under a plea of title to tbe loans wi quo.

<p> Deed: Grantee not estopped to deny grantor’s title: Date: Contradiction by parol: Homestead: Abandonment: Lien of judgments: Ejectment against lessee: Counterclaim: Cloud upon title. </p> <p>1. The grantee m a deed is not estopped by his acceptance thereof from showing that since he went into possession the supposed title of his grantor has been divested by a paramount lien and transferred to another, and that he is rightfully in possession under such other.</p> <p>2. A quitclaim deed purporting to convey all the right, title, and interest of the grantor acquired under a certain sheriff’s deed was admissible to show such conveyance although it was dated two or three days earlier than the sheriff’s deed. The date was impeachable by parol.</p> <p>3. Where the owner of a homestead abandons it as such, still retaining the legal title, judgments docketed against him become liens upon the land at once without any proceedings in equity to enforce them.</p> <p>4 Where a person removed from his homestead for no temporary reason or purpose and, with his family, took up his abode in another state, with no certain and abiding intention of returning and reoccupying the same premises, a court or jury may be justified in holding that he thereby abandoned such homestead, even though he vaguely contemplated the possibility of returning.</p> <p>5. In ejectment against a mere lessee he cannot, upon a counterclaim, have the deed under which plaintiff claims set aside as a cloud upon the title of the lessor.</p>

<p> Municipal corporations: Special assessments for street improvements: Validity. </p> <p>The charter of Sheboygan (Laws of 1887, ch. 124) provides for initiating proceedings for paving streets and levying special assessments upon adjoining property to pay therefor, either by verified petition of the resident owners of a majority of feet of the frontage, or by resolution of the common council, passed at a meeting subsequent to its introduction by a three-fourths vote taken by ayes and noes. Held, that an assessment made without compliance with either of these requirements was void.</p>

<p>Dieckmann v. Sheboygan Co., ante, p. 570, followed.</p>

<p> ' Insurance against fire: Standard policy: Appraisal: Condition precedent to action: Waiver: Bad faith of insurer: Failure of appraisal: Amount of loss, how determined. </p> <p>1. Under the Wisconsin standard fire policy (providing that in case of disagreement as to. the amount of the loss it shall he ascertained, by an appraisal in the nature of an arbitration, and that “ the loss shall not become payable until sixty days after ... an award by appraisers, when appraisal lias been required ”), if an appraisal has been properly demanded the assured cannot maintain an action on the policy until such appraisal has been made, waived, or-ín some manner legally dispensed with.</p> <p>2. Such provision is reasonable and valid, and cannot be revoked at the mere option of either party.</p> <p>3. An attempt by either party to misuse or pervert the provision for an apipraisal so as to unreasonably delay an adjustment or secure-an unjust abatement of an honest loss, is a breach of good faith and should be treated as a waiver and as warranting an action without an appraisal, if the party thus prejudiced has used all fair- and reasonable means and diligence on his part to secure it.</p> <p>4 The evidence in this case is held to support findings of the trial court to the effect that there was no real and substantial disagreement as to the amount of the loss, and that the demand for an appraisal was not made in good faith but to postpone the adjustment and coerce the assured into allowing an unjust rebate from his-claim.</p> <p>•5. The appraisal or arbitration having failed because of the bad faith of the insurance company and the perverse refusal of the appraiser selected by it to concur in the appointment of any umpire residing in the vicinity of the property insured, or unless he resided in Chicago, 200 miles distant, the assured was not bound to enter into another appraisal before bringing- suit on the policy.</p> <p>■6. In ascertaining the amount of the loss it fc of no importance what the assured paiiL for the goods destroyed, or whether he paid for them in cash or in land. The only question is as to their fair cash value.</p> <p>7. The assured is entitled to have the goods appraised at their value in the market where they were destroyed, and not at the rates in some other place on broken or bankrupt stocks.</p>

<p>Appeal from a judgment of the circuit court for Kewau-nee county: N. S. G-ilsoN, Circuit Judge.</p> <p>Tlie complaint states two causes of action,— one for malicious prosecution, one for false imprisonment.</p> <p>It appears that in the fall of the year 18S9 the defendant and two of Ms neighbors lost about thirty head of cattle. They believed that they had been poisoned, and suspected the plaintiff’s brother of being the poisoner. They consulted the district attorney and his law partner on the subject of commencing a prosecution. They were advised that they had not sufficient evidence to warrant such a proceeding. In the following spring a complaint was made to a justice of the peace, and many witnesses were examined before him. The defendant was present at that examination. The district attorney conducted it. At its termination both the district attorney and his law partner advised the defendant that there was evidence sufficient to justify him in making a complaint against the plaintiff. The district attorney drew up a complaint, which the defendant subscribed and swore to before the justice. The defendant had no further agency in causing, a warrant to be issued. The justice issued a warrant against the plaintiff, returnable before another justice of the peace of the same county, who resided in another town. The plaintiff was arrested and taken before the justice before whom the warrant was returnable. Before any proceedings were bad tbe witness upon whose testimony tbe-district attorney bad mainly relied informed tbe district attorney that, on reflection, be was not positive, and could not testify to tbe facts wbieb be bad testified to previously. Tbe district attorney tben at once dismissed tbe action. Tbe plaintiff tben began this action.</p> <p>There was a jury trial, and verdict and judgment for the defendant. Tbe plaintiff appeals.</p> <p>contended, inter alia, that tbe intention of tbe statute is that tbe warrant should be in tbe form given in sec. 4774, R. S., and that if tbe justice who issues tbe warrant cannot bear tbe cause tbe accused should be taken by tbe officer making tbe arrest before a justice who could, under sec. 4782. And where a new justice has to be found in place of tbe one who issued tbe warrant, tben one should be chosen in view of tbe convenience of tbe defendant, and be should be the-nearest justice qualified by law to try a cause between tbe state and tbe accused, as provided by secs. 4744, 4809. To issue a warrant returnable before a justice twenty-four miles from tbe borne of tbe accused, in a remote part of tbe county, would be an abuse of criminal process. People v. Fuller, 17 Wend. 211; Fisher v. ShattucJe, 17 Pick. 252; Davis, Crim. Justice (Heard’s ed.), 55. In order that advice of counsel may be a defense it must have been given honestly and in good faith, upon a full, fair, and honest statement of all the facts within the defendamos hnowledge. All these conditions are necessary. Sherburne v. Podmcm, 51 Wis. 481; Palmer v. Broder, 78 id. 487, 491; Logan v. Maytag, 57 Iowa, 107; Smith v. Davis, 3 Mont. 109; Jacleson v. Bell, 58 N. W. Rep. 673; Le Olea/r v. Perhins, 61 id. 357; Perry v. SulAer, 92 Mich. 72; Jonasen v. Femiedy, 39 Neb. 313; Sooiten v. Longfelloto, 40 Ind. 30; Worrell v. Vogel, 39 Minn. 107; Center v. Sprung, 2 Iowa, 393; Outhbert v. Gal-lovmj, 35 Fed. Rep. 466, 470; Thomp. Trials, § 16395 and note -2. The charge was erroneous in that the advice of counsel is made, not a question to be considered by the jury, but an absolute defense, without the defendant’s having stated all the facts within his knowledge to such counsel. See, further, Flora v. Russell, 37 N. E. Eep. 593; Bcw'hight v. Tmmnmvy, 158 Pa. St. 545; Newell, Mal. Pros. 318, § 8; Donnelly v. Daqgelt, 145 Mass. 314; Paddoelc v. Watts, 116 Ind. Í46.</p>

<p>(1) Improper joinder of causes of action: Flection: Estoppel. (2) Taxation of costs: Appeal: Exceptions.</p> <p>1. A cause of action on contract and one in tort were improperly joined,- and because the trial court refused to require plaintiff to elect between them a judgment in his favor was reversed and the cause remanded for a new trial. The trial court then ordered that plaintiff be allowed to proceed on his cause-of action on contract alone, upon payment of the costs up to that time, and such costs were-paid accordingly and accepted by defendant. Held, that ..defendant could not thereafter have the action dismissed because of the-improper joinder.</p> <p>2. Where an appeal from the taxation of costs by the clerk is dismissed by the court, a general exception to its finding and order and the costs does not bring np for review on appeal the ruling on any specific item of costs.</p>

E. Richtee, Judge. Action on contract. Tbe defendant employed tbe plaintiff to move a bouse, barn, and two sbeds for $50 for tbe entire job. Tbe plaintiff moved tbe bouse and barn, but did not move tbe sbeds.

E. Exciitee, Judge. This action was brought to charge the defendant, as a common carrier, for the loss of certain goods, of the value of about $140, delivered to it at Fond du Lac, Wis., and consigned to A. Kirchbaum & Co., at Philadelphia, N. Y.; .and it was alleged that the goods were carried by the defendant and their connecting lines to the station at Philadelphia, N. Y., and, not being called for, the plaintiff was notified by the defendant’s agent of the fact, and he…

S. GilsoN, Circuit Judge. This is an action for damages for deceit in an exchange of'a farm for a stock of merchandise. The plaintiff owned a farm. The defendant owned a stock of second-hand, miscellaneous, misfit merchandise. The plaintiff proposed a trade.

<p>Appeal from a judgment of the circuit court for Eond du Lac county: N. S. GilsoN, Circuit Judge.</p> <p>This action was commenced May 28,1893, to recover damages for personal injuries sustained by the plaintiff March 4, 1893, by reason of an alleged defective sidewalk in front of the premises owned and occupied by the defendants in the city of Fond du Lac. The answer consists of admissions^ of the ownership of the property, and denials of all carelessness and negligence on the part of the defendants or any of them, and alleges contributory negligence on the part of the plaintiff. At the close of the trial the court granted a nonsuit, and from the judgment entered thereon the plaintiff appeals.</p> <p>They contended, inter odia, that the liability of lot owners is coupled with a condition requiring the service of thirty days’ notice, which is a protection against these actions which other citizens of the .state do not enjoy. This law, so far as it applies to property owners, is subject to all the objections set forth in Dur-]cee v. Janesville, 28 Wis. 464, and especially in Míneles v. Milwaukee, 46 id. 566, and Janesville <v. Carpenter, 77 id. 302, :and is not constitutional.</p>

<p>Appeal from orders of the circuit court for. Fond du Lac-county: N. S. G-ilsoN, Circuit Judge.</p> <p>This is an action in equity brought against the town of" Eden, its clerk and supervisors, to enjoin them from granting licenses for the sale of intoxicating liquors. The complaint alleges that the plaintiff is a resident tax-payer and elector of said town; that on the 3d day of April, 1894, the question whether licenses should be granted in said town was duly submitted to the voters of the town; that at such election 140 votes were cast “ For License,” 160 votes- “ Against License,” and 52 votes on which were written the words “For License in the Tillage of Eden;” that the inspectors of election counted said last-named ballots as ballots cast “ For License,” and. declared the result to be 192 votes cast “ For License,” and 160 votes cast “Against License,” when in truth said 52 votes were illegal and void; that the said supervisors threaten and intend to grant licenses for the sale of liquors in said town, which action “ will work an irreparable loss and damage to this plaintiff, as well as to other citizens, voters and residents and taxpayers of said town;” wherefore an injunction is prayed against the granting of such licenses.</p> <p>Upon this complaint a preliminary injunction restraining the town and its officers from granting any licenses was granted ex parte by a court commissioner. A demurrer to the complaint, on the ground of want of equity as well as upon the general ground of insufficiency of facts, was interposed, and a motion was made to vacate the preliminary injunction. The demurrer and the motion were heard at the same time, and orders were made vacating the injunetional order and sustaining the demurrer, and from both orders the plaintiff appealed.</p> <p>To the point that plaintiff has mistaken his remedy, they cited Judd v. Fox Ladee, 28 "Wis. 583, and cases cited; Qilleey v.. Merrill, 67 id. 459; Sage v. Fifield, 68 id. 549; Pedriele v. Pipón, 73 id. 624; Kendall v. Frey, 74 id. 26; World’s Oolum-bian Exposition v. 77. S. 6 C. C. A. 58.</p>

<p>Appeal from a judgment of the circuit court for Fond du Lac county: N. S. G-ilsoN, Circuit Judge.</p> <p>This action was for tbe foreclosure of a mortgage executed by tbe defendant Pratt and wife to R. McMillen & Co., dated August 24, 1885, upon tbe undivided one-balf of certain pine lands in Lincoln and Langlade counties, containing in tbe entirety about 4,100 acres, to secure tbe performance of a certain contract entered into between said Pratt and tbe said McMillen & Co. of tbe same date; tbe latter having on tbe same day, as it is stated in tbe contract, purchased from said Pratt an undivided half of tbe entirety of said lands, and “-one of tbe considerations of such purchase being that tbe logs and timber to be cut from said lands shall be hauled to the Wolf river.”</p> <p>By tbe contract, Pratt agreed to build and equip a railroad for tbe transportation of logs and timber from Lake Pratt (on or near said lands) to Post Lake, in Langlade county, and keep it in operation for tbe transportation of logs over it for tbe term of seven years from the date of the contract, and so that not less than 5,000,000 feet of tbe logs mentioned in tbe contract should be transported over it in 1886, and that be would “ cut emd deliver to said R. McMil-len & Company 25,000,000 feet of pine logs and timber, to be cut and taken from” tbe lands described in tbe contract, averaging not more than four and one-h'álf logs to tbe thousand feet, and in quality to be a fair average' of all tbe pine standing on said lands; not more than five per cent, of said 25,000,000 should be Norway pine; to be cut*to tbe best advantage as logs are usually cut on Wolf river to make good merchantable logs. And be agreed “ to deliver said logs rafted out at tbe Wolf river hoom, free and deem' of all liens aeid incumbrances; ” but said McMillen & Co. were to furnish all boom timber. Five million (more or less) of said logs were to be cut and delivered on or before tbe early drive of tbe year 1887, and tbe full amount was to be cut and delivered within three years and ten months after September 1, 1885. McMillen & Co. were “ to pay said Pratt .for cutting, hauling, running, mid raftvng said logs in tbe Wolf river boom the sum of $6 per thousand feet,” as follows : When any drive leaves Post Lake, they were to pay Pratt $3 per thousand on the woods scale, the balance to be paid as soon as the logs are rafted at the Wolf river boom; .and “ the final scale of dll logs delivered shall be the scale made by some competent scaler at the Wolf river boom, as said logs are rafted out of said boom.” McMillen & Co. agreed that, “ so soon as the logs are rafted and tied out, they shall he held at their risk and expense.”</p> <p>Pratt was to execute and deliver to them “ two mortgages, ■of $25,000 each, on his undivided half of the lands, conditioned for the performance of the contract on his part.” The first mortgage was to be discharged when the first 5,000,000 feet of logs “ contracted to be delivered, free and clear from all liens and incumbrances, as therein provided for,” was delivered; and the second mortgage (the one in suit) was to be released “ when the said Pratt shall have delivered to R. McMillen & Go. 25,000,000 feet of logs contracted to be delivered at the Wolf river boom, under the contract, free mid clear of all costs and charges,” or when said Pratt should give other satisfactory security therefor. Pratt covenanted and agreed that, until the second mortgage was discharged, '■'■there shall he and remain on said lands «described in the contract not less than nine million feet of ■stand/mg pine timberand McMillen & Co. stipulated that ■on demand they would convey to Pratt the right of way for said railroad 100 feet in width, without compensation, and also across any other lands they might own, in case of its extension, reserving to themselves the timber standing on the same.</p> <p>It was also agreed “ that any purchases of pine land or standing pine timber, tributary to the railroad [to be built by Pratt], shall be bought for and on the joint account of Pratt and said McMillen & Co.,” each party paying half of tbe purchase money, and that if, at the time of payment,, either party neglected to furnish one half of the purchase price of the same, then the other, party might take the entire-title clear of any claim by the other; that if either party should, during, the continuance of the contract, make such a purchase in which the other at the time did not join, then he should convey or transfer to the other party within that period one half of such lands or timber on being paid one half of the purchase money with eight per cent, interest that “the cost of looking up or estimating any lands or timber contemplated to be so purchased under this agreement on joint account” should be borne by the parties equally.</p> <p>During the seven years the contract was to run for the transportation of logs between Lake Pratt and Post Lake, Pratt agreed to keep the road in repair and properly equipped,. “ and haul and transport over said road . . . any and all timber or logs said McMillen & Co. and said Pratt shall or-inen/ own jointly, for the sum of twelve and one-half cents per thousand feet per mile ” for each mile said logs or timber are transported; and that “all logs that shall be transported over said railroad, which shall belong to said McMillen c6 Co. and said Pratt, McMillen & Co. shall load or pay said Pratt for loading their one-half of said logs, and said Pratt shall unload the same in Post Lake without cost to McMillen & Co.” And they agreed and bound themselves “ to pay for the transportation of any and all logs they may have transported over said road, from la/nds hereafter to he pwchased by said McMillen & Có. and said Pratt on joint account, the sum of twelve and one-half cents per thousand feet per mile for each thousand feet of their one-half of said logs so transported,” etc. ' ’</p> <p>It was also agreed that, as soon as Pratt “ shall have delivered the 25,000,000 feet of logs as called for in the agreement, all the remaining pine timber being and sla/ndi/ng on-the lands described in the contract shall be and remain absolutely the property of Pratt, and McMillen & Co. stall, on demand, give Mm a bill of sale of such, timber ” and a reasonable time in which to remove it from the lands; that, if the logs cut from the described lands should be “ assessed to either of the parties, then, in that case, each party agrees to pay said tax as his actual interest in the said logs shall be.” It was also agreed that, “ in case any of the notes this day given by McMillen & Co. for the purchase of the undivided one-half interest in the above-described lands are not paid when due, then and in that case this contract shall be void and of no effect, and each of the parities hereto shall be released from the fulfilment thereofP It appears that, at the date of the contract, Pratt conveyed to McMillen & Co. an undivided one-half of the lands described in it for $100,000, to be paid according to notes of McMillen & Co., of. even date therewith.</p> <p>The breach of contract alleged was that Pratt delivered only 18,000,000 feet of logs and timber, and damages were claimed for failure to deliver the other 1,000,000, at $8 per thousand feet, amounting to $56,000, with interest; and it was alleged, as was admitted by the defendant, that the contract, mortgage, and the interest of McMillen- & Co. in the premises had been transferred to and vested in Pobert McMillen, the plaintiff.</p> <p>The answer, in substance a general denial, sets out, among other things:</p> <p>(1) That the defendant cut and removed from the said lands 36,000,000 feet of logs and timber; that the plaintiff’s half — 18,000,000 feet — was delivered as provided in the contract, and the value of the logs at Oshkosh was $14 a thousand; that there remained on the land about 2,500,000' feet, plaintiff’s half whereof the defendant was ready and willing and offered to cut during the logging season of 1888-89, according to the contract, but the plaintiff forbade Mm, and thereupon be cut and removed bis half thereof; that when, the contract was made the parties supposed there was 50,000,000 feet of pine on the land, but there was found to be only about 38,500,000, and, because of said supposition, 25,000,000 feet was the one-half amount designated in the contract to be cut and delivered to the plaintiff.</p> <p>(2) That February 1, 1888, Seymour Hollister and O. W. Davis, who were copartners of the 'plaintiff and with him constituted the firm of R. McMillen & Co., sold and transferred all their title and interest in and to said agreement- and all other agreements and business an-angements between the defendant and said company to the said plaintiff, who assumed all the obligations and liabilities thereof for the past as well as the future; that the plaintiff was indebted to the defendantfor transporting said 18,000,000 feet of logs over his railroad in the sum of $33,782.22, in items as therein specified, and at the rate of twelve and one-half ■cents per thousand feet per mile, and also in the further sum of $9,000 for loading the same on the cars, at the reasonable rate of fifty cents per thousand feet, which said sums, with interest thereon, as stated in the answer, defendant claimed to recover by way of counterclaim against the plaintiff.</p> <p>(3) By way of further counterclaim, that on the 2éth of August, 1885, for a valuable consideration, and in consideration of the defendant’s maMng and entering into said agreement, and the sale and transfer to said R. McMillen & Co. of an undivided one-half interest in the lands described in the written contract at much less than their actual or market value, the parties made and entered into a certain other ■contract, by which it was agreed that McMillen & Co. and the defendant would buy all the pine lands and timber tributary to the railroad (and its reasonable extensions) mentioned in- the written contract and agreed to be built by the •defendant, which could be advantageously purchased to their joint profit and bauled on the railroad and banked on the "Wolf river; that McMillen & Co. were to furnish the necessary money for the purchase of such lands and timber, and transfer to the defendant a half interest1 therein, upon his paying therefor or giving satisfactory security, and all the pine logs and timber cut from such lands were to be transported and’ hauled over the railroad, and said McMillen & Co. agreed to pay defendant therefor at the rate of twelve .and one-half cents per thousand feet for every mile transported ; that the defendant built, constructed, and equipped the railroad as he had agreed to do for logging purposes, and it was reasonably worth the sum of $125,000, and McMillen & Co. and defendant did purchase about 15,000,000 feet of pine timber, and cut and hauled the same to said railroad and over it; that, besides, there were at least 250,000,000 feet of pine timber tributary to said road which could have been advantageously purchased under such agreement for the joint benefit and to the profit of the said parties, and hauled over the railroad and banked on the "Wolf ■river, as McMillen & Co. well knew. The defendant averred readiness and willingness to perform on his part the said ■contract for the purchase thereof, and alleged that McMillen & Co. and the plaintiff, as assignee, as aforesaid, refused to purchase the same or any part thereof and to perform the said contract on their or his part, although requested; that by reason of the premises and of the defendant’s inability to purchase said timber, not having any more logs to ship over said railroad, it depreciated greatly in value, to wit, in the sum of $50,000, and the defendant was prevented from earning twelve and one-half cents per thousand feet per anile for the carriage of said 250,000,000 feet of logs and timber; and that by hauling it the defendant would have realized a profit of $1.50 per thousand feet, and he was also -deprived of and lost the sum of $4 per thousand feet for his ■one-half of said’ 250,000,000 feet which could have been so purchased and hauled and banked as aforesaid had McMillen & Go. or the plaintiff performed the contract on their part;, and he demanded judgment in the sum of $200,000 damages, with interest on $242,188.22 from the commencement of the action.</p> <p>The court found, among other things, that the plaintiff, February 1, 1888, succeeded to and became substituted in all respects in the place and stead of McMillen & Co., both as to rights and liabilities under said contract, and became-sole owner thereof and of said mortgage; that Pratt delivered, before September 1, 1880, 18,000,000 feet of pine timber of the kind and quality and as required by the contract, and no more; that the plaintiff paid him $6 per thousand for the cutting, running, hauling, rafting, and delivering the-same at the Bay boom, and did not pay him any other sum for loading or hauling the same on his railroad; that the-firm of McMillen & Go. and the plaintiff, on the one part,, and Pratt, on the other, in their dealings with each other between August 24,1885, and July 1, 1889, treated said contract as requiring said Pratt to cut, haul, load upon the cars-at his railroad, and transport and haul thereon the 25,000,000 feet of logs described therein, to be delivered by Pratt to-McMillen & Co. free and clear of all costs and charges other than the $6 per thousand specified in said contract; that is,, they treated said contract as requiring the said Pratt to-load said logs upon his cars and transport the same over his railroad without any other payment for such loading or-transportation than the $6 a thousand specified in said contract, and treated the provision of said contract in this behalf as relating, not to the 25,000,000 feet of pine timber specified in the contract to be delivered before the 1st day of July, and to be cut and taken from the land theretofore-owned by said Pratt, but as relating only to logs and timber on land which should thereafter be acquired under the-terms and provisions of the conti-act of -August 24,1885. It was found • that logs of the character and quality described, at the time when they were to be delivered, Avere of the value of $11 a thousand, and that demand had been made for the 7,000,000 feet not delivered before the 1st of July, 1889. It was further found that no verbal contract was made between Pratt and the plaintiff, or between him and R. McMillen & Co., such as is stated in his answer, but that the written contract of August 21, 1885, contains the entire agreement of the’ parties thereto for the future purchase of pine land or standing pine timber, and that no oral Agreement was made for the future purchase of pine land or standing pine timber between the said parties. The plaintiff’s damages were found to be the sum of $71,918.6Y, being $56,000 principal, with interest thereon from July 1, 1889, up to April 1,1893, at seven per cent, per annum, and after-wards at six per cent, per annum.</p> <p>As conclusions of law, the court found that Pratt Gv&s bound to cut and deliver to McMillen & Co., or their assignee, before July 1,1889, 25,000,000 feet of pine logs and timber of the kind and quality specified in the contract, to be cut by Pratt, and rafted out at ~Wolf river boom, free and clear of all liens and incumbrances and costs and charges, upon the payment of the sum of $6 a thousand feet, which was to include and cover all costs and charges, including loading the same and transportation thereof upon and over said PratGs railroad. Judgment was given of foreclosure in the usual form for the amount so found due, and dismissing all the counterclaims and affirmative causes of action set up by the defendant Pratt. The defendant Pratt, having alleged various exceptions to the findings, appealed from this judgment.</p> <p>They argued, among other things, that the verbal contract,, if proven, is void because it relates to an interest in land. Horsey v. Graham, L. E. 5 0. E. 9, 18; Mather v. Sooles, 35-Ind. 1; Parker's Heirs v. Bodley, 4 Bibb, 102-4; Hooker v. Gentry, 3 Met. (Ky.), 463; Waiters v. MoGuigan, 12 Wis. 155, 151; Bunphy v. Byan, 116 IT. S. 491-6; Thorp v. Bradley, 75 Iowa, 50. The following cases are very nearly parallel: Brosnam v. MoKee, 63 Mich. 454-457; Baub v. Smith, 61 id. 543, 548, 549; Levy v. Brush, 45 N. Y. 589. See, also, Ola/rke v/ MoAuliffe, 81 Wis. 104,107; Bird v. Morrison, 12 id. 138; Popp v. Swanke, 68 id. 364; De Moss v. Bobmson, 46 Mich. 62; Scott v. Bush, 26 id. 418; Abell v. Munson, 18 id. 312; Hogsett v. Filis, 17 id. 364; Bawdon v. Bodge, 40-id. 698; Erben v. Lorillard, 19 N. Y. 299; Percell v. Aimer, 4 Wall. 513; Wetherbee v. Potter, 99 Mass. 354; Ham, v. Bob-mson, 72 Iowa, 735;" Merritt v. Brown, 21 N. J. Eq/401. Nor is it taken out of the statute of frauds by part performance. Blmioha/rd v. McBougal, 6 Wis. 167; Brandéis v.. Neustadtl, 13 id. 142.</p>

<p>Appeal from a judgment of the circuit court for Richland county: Geo. ClemeNtsoN, Circuit Judge.</p> <p>This is an action for damages for trespass npon lands. The acts claimed to be a trespass are conceded. The defense is that the locus in quo is a highway. It is not claimed that a highway had been laid out there, nor that it was a highway by ten years’ user, but that it was a highway by dedication. This was the only contested question.</p> <p>It is claimed that the land was dedicated as a highway in the spring of the year 1886 by the then owner of the lands, one D. G-. Pease. The locus in quo is in what is called the village of Eockbridge. This is a small cluster of buildings upon grounds which have never been platted. In the spring of 1886, Pease sold what is described as two lots to one Levi Armstrong, and promised him, a road to them if he would fence the road. The land sold to Armstrong was part of a cultivated field. Armstrong fenced the road to his lots, and beyond, so that it opened into another road. Prom that time there was, at some seasons of the year, considerable travel over this road. Pease lived in another town, and was at Eockbridge only occasionally. He did not know that the road had been opened through until several months after-wards. He directed his tenant, Hoffman, to fence up the road; but it was not done, and travel over it continued. In 1887 it was questioned and debated between the pathmaster and the supervisors whether this was a highway and whether public labor should be expended upon it. Some little public labor was expended upon it. Pease knew there was public travel over the land, and did not stop it. The plaintiff bought the land from Pease in 1891, and immediately put up notices warning the public not to travel there. Pease testifies that he told Armstroug, at the time he sold him the lots: “ If you want a road through there you can, but I will never give a road to the public to travel through there, but if you want to travel through there you can, because the town is able to pay me for a road if they want, the public to travel through there.”</p> <p>There was a verdict for the defendants. Plaintiff moved for a new trial on tbe ground, among others, that the verdict is against the weight of the _evidence. The motion was denied. Jndgment for the defendants was entered on the verdict. The plaintiff appeals from the judgment.</p> <p>cited Rube v. Sullivan, 23 Neb. 719, and cases there cited; Starr v. People, 17 Colo. 158; Weiss v. South Bethlehem, 136 Pa. St. 294; Oomm. v. P. <& R. R. Go. 135 id. 256; State ■ex rel. Lightfoot v. MoOdbe, 74 Wis. 481; Graham v. Hart-nett., 10 Neb. 517; Warren v. Brown, 31 id. 8; Tupper v. Huson, 46 Wis. 646; O'Connell v. Bowman, 45 Ill. App. 654; Verona v. Allegheny V. R. Go. 152 Pa. St. 368; Waggeman v. North Peoria, 42 Ill. App. 132.</p> <p>They cited Bcvrtlett v. Bem'dmore, 77 Wis. 356.</p>

OleheNtsoN, Circuit Judge. Tbe complaint alleges, in effect, that September 20,1892, tbe defendant town then bad, and now still bas, within its limits, an unincorporated village known as tbe village of Belmont, wbicb at tbe times hereinafter mentioned bad a population less than 500 residing therein, as shown by tbe last preceding census; that September 20, 1892, an election was held in said town for tbe purpose of estabbsbing tbe amount of money to be paid for license for…

ette county: Geo. ClemeNtsoN, Circuit Judge. Action upon a-promissory note for $1851 Tbe note was given in payment for a harvesting machine which defendant ordered and received in July, 1889, the same being sold under a warranty to be well made and to do good work.

<p> Appeal: Question of fact: Credibility of mtnesses: Setting aside verdict. </p> <p>In an action against a railway company for personal injuries alleged to have been caused by defects in a walk and steps leading to a depot platform, plaintiff’s account of the way in which the injury occurred not being highly improbable, and the evidence on his part, if believed by the jury, being sufficient to sustain the verdict in his favor, this court declines to interfere, although there seems to be a preponderance of evidence against such verdict and the trial court ought, perhaps,.to have granted a new trial.</p>

CleheNtsoN, Circuit Judge. The action is to recover damages alleged to have been caused by a defective highway. The plaintiffs were copart-ners engaged in a general livery business. One Daniel. Fisher hired a team from them, which he drove over and along a highway of the defendant town. The highway crossed a bridge, and ran for a short distance along beside a small stream, called “Mud Creek,” to the left and within about fifteen feet of it.

ClemeNtsoN, Circuit Judge! This is an action for breach of marriage promise.

ClEMEntson, Circuit Judge. The defendant is a town mutual insurance society, organized under the laws of this state. On November 15, 1888, the plaintiff paid the requisite amount and procured a policy of insurance which, by its terms, insured him against loss or damage by fire and lightning to the property in question and other property, for the term of five years, in the sum of $2,035.

ClemeNtsoN, Circuit Judge. Beplevin for a horse. It appeared that some time prior to the commencement of this action a criminal action had been commenced against the defendant, charging him with larceny of the horse in question from the plaintiff, and that said criminal action was still pending at the time of the trial of the replevin action.

<p>Appeal from a judgment of tbe circuit court for La Fay-ette county: Geo. OlemestsoN, Circuit Judge.</p> <p>An action was brought for the partition of certain lands, against Charles 33. Champion, who claimed an undivided fifth interest in the same under the residuary clause of the will of his mother, Elizabeth Champion, and against various others interested in said premises, claiming under the will and as incumbrancers. The premises were sold under the judgment in the partition suit, and the proceeds of the interest of said Charles 33. Champion therein paid into court, amounting to $2,116.17; and they were claimed by divers judgment creditors of the said Champion, among others the respondents Galvin B. Corbin and Hw'atio May, under a judgment in their favor and against Champion, rendered IVIay 7, 1870, and by L. A. Clinton, under a similar judgment, and they filed petitions in the partition action, claiming said moneys. Their claims were resisted by Ellen Champion, widow and administratrix of the estate of Charles 33. Champion (who had died in the meantime), on the ground that his interest in the lands was not subject to levy or sale on execution, by reason of the provisions of the will of his mother through which he obtained his title, and also by other defendants who held alleged incumbrances against his interest in the lands.</p> <p>A trial was had before the court upon issues joined on these petitions; and it was found, among other things, that the interest of Champion in the lands had been sold on execution issued October 4, 1890, upon leave granted, on the judgment in favor of Corbin and May, and that it remained unredeemed from such sale; that the entirety of the lands was devised by Elizabeth Champion to Charles B. Champion and four others equally, share and share alike, their heirs and assigns forever, the testatrix mailing in said devise “the •express condition that the share of my said son, Charles B. Champion, shall in no wise ever be subject to any debt, liability, execution, attachment, or judgment against said Charles B. Champion, existing at this time or at any time hereafter ; ” that the judgment in favor of L. A. Clinton against Champion was rendered May 6, 1890, and was the paramount lien, the lien of the Oorbin and May judgment having expired; that the dower interest of Ellen Champion, the widow of the deceased, in the fund in court, was $421.81, which she had elected to take for her dower; that the amount due on the judgment of-A. A. Clinton was $291.68; •and that the remainder of the fund — $1,396.61 — belonged to, and should be paid over to, Corbin and May. And judgment was given for the payment of these sums accordingly^ and for costs in favor of Corbin and May, and also in favor •of L. A. Clinton, against Ellen Champion, as administratrix, ■etc., to be paid in course of due administration out of the «state of Charles B. Champion, deceased, and against George F. West and other defendants named, who had resisted and defended against said petitions. The costs - in favor of Cor-bin and May were taxed by the clerk, allowing only $25 attorney’s fees to the petitioners, which, on their appeal, was increased by the court to $61.12. From this judgment Ellen Champion, as administratrix, etc., and other defendants appealed.</p> <p>They contended, inter alia, that a condition which defeats an estate on appropriation to the-grantee’s debts is valid. Broadway Nat. Bank v. Adams, 133 Mass. 110; Overman’s Appeal, 88 Pa. St. 216; While v. Thomas, 8 Bush, 661. A devise of the income of property, to cease on bankruptcy or insolvency, is valid. Nichols v. Eaton, 91 U. S. 716; Brandon v. Robinson, 18 Ves. 429;, Bramhall v. -Ferris, 14 N. Y. 41; 2 Jarman, Wills (5th ed.), 25.. When the intention of the testator is clearly declared to be to bequeath the property for the sole benefit of the donee, or that his creditors shall have no part of it, the bequest will fail upon his insolvency or bankruptcy, even when it occurs during the life of the testator, and a gift over will take effect. Beach, Wills, § 231. See, also, Shankland’s Appeal, 47 Pa. St. 113; Braman v. Stiles, 2 Pick. 460; Per-bans v. Hays, 3 Gray, 405; Foster v. Foster, 133 Mass. 179;, 2 Redf. Wills (1st ed.), 669; Yarnold v. Moorhouse, 1 Russ. & M. 364. The tendency of Wisconsin courts and statutes is in the direction of allowing a testator liberal latitude in disposing of his property. Trusts may be created for the beneficial interest of any person (R. S. sec. 2081), and such property cannot be reached by creditors (sec. 3029). So that if Mrs. Champion had conveyed the property to trustees for her son’s benefit, his creditors could not reach it.</p> <p>argued, among other things, that the condition is void and the grant itself remains as absolute in all respects as though no condition had been attempted to be attached to it. 2 Redf. Wills, 287,288, 289, 290, 668; 6 Am. & Eng. Ency. of Law, 903, note; Brandon v. Robinson, 18 Ves. 429; 4 Kent, Comm, 131; Blaek-stone Bank v. Davis, 21 Pick. 42; Hall v. Tufts, 18 id. 459, 460; Gleason v. Fa/yerweather, 4 Gray, 348; Good v. Fich-thorn, 144 Pa. St. 287; Stamsbury v. Hubner, 73 Md. 228; .Lamrence v. Singleton, 17 S. W. Rep. 265; Hardy v. Galloway, 111 N. C. 519; Hahnv. Hutchinson, ,159 Pa. St. 133; Hall v. Palmier, 87 Va. 354; Schermerhornv. Hegus, 1 Denio, 448’; Fhrisman v. Sener, 162 Pa. St. 577; McCleary v. Ellis, 54 Ionqi, 311; McCormick H. M. Co. v. Gates, 75 id. 343; Siizmcm v. Paeguette, 13 Wis. 313, 314; Bridge v. Wa/rd, 35 id. 687; Arzbaeher v. Mayer, 53 id. 388, 391; Oreen Bay de-AC. 0. Go. v. llewett, 55 id. 104.</p>

<p> Appeal from justice’s court: Failure to bring cause to hearing: Continuance after second term. </p> <p>Under sec. 8766, R. S., providing that if an appeal from a justice of the peace is not brought to a hearing in the appellate court before the end of the second term after filing the return of the justice, “ such court shall dismiss the appeal, unless it shall continue the-same by special order for cause shown,” the power to so continue the cause may be exercised after the end of the second term; and especially is this so, in view of sec. 2881, providing that except as. otherwise prescribed the court may, in its discretion, on good cause-shown, allow any proceeding in an action to be taken after the-time limited by statute or by any order of court has expired.</p>

<p>Appeal from a judgment of the circuit court for La Pay-ette county: G-eo. OlbmeNtsoN, Circuit Judge.</p>

ClemehtsoN, Circuit Judge. This is an action to foreclose a mechanic’s lien. The-plaintiff claims a lien amounting to $1,700 upon a butter factory building, being the balance which it claims to be due as a part of the contract price for the erection of said building. The contract under which the building is alleged to have been built purported to be a contract made with, thirty-six different subscribers, and in this action all of said subscribers were made defendants.