Volume 90 — Wisconsin Reports

<p>Deed: Construction: Undivided interest in wall: Easement: Abandonment: Party wall: Ejectment by tenant in common.</p> <p>1. A lot owner, in erecting an addition to his building thereon, used the south wall of such building as the north side of the addition. Afterwards he conveyed that part of the lot on which the addition stood, describing it in the deed as “the south twenty-six feet, more or less,” of the lot; “also the undivided one-half of the wall on the line on the north side of the above-described premises.” Held, that the deed created an easement in said wall for the support. of the building conveyed and for a partition, but did not convey title to any of the land upon which such wall stood.</p> <p>2. The destruction of the entire building by fire, and the erection by the grantee of a new building on a different foundation within the twenty-six feet conveyed to him, was an abandonment of the ' easement and extinguished it, especially as against subsequent purchasers of .the remainder of the lot who built on the lines of the original building without notice of any such easement.</p> <p>3. If the original wall became a party wall it ceased to be such on the ■ destruction of the building.</p> <p>4. Even if the deed conveying an undivided half of the wall conveyed also an undivided half of the land on which the wall stood, the grantee could not, after the destruction of the building, recover in ejectment his share of such land in severalty.</p>

<p>Appeal from a judgment of the circuit court for Trem-pealeau county: A. W. Hewmah, Circuit Judge. .</p> <p>This action was brought to recover from the defendant, tbe stakeholder, the sum of $100, wagered on the result of an election held November 8, 1892. The complaint states that a wager of $50 on each side was made by and between Zibet, ■Harnden and Yictor Kempter, October 25, 1892, each of the parties having deposited that sum with the defendant, a banker, as stakeholder, and that they made a further deposit with him of $50 each for the same purpose, November 1,1892; and it was aheged that the money deposited by Harnden had been demanded from the defendant, and that he refused to pay it. The answer was a general denial.</p> <p>The plaintiff called the defendant as a witness on his behalf, and he testified, in substance, that a bet was made in his presence between Harnden and Kempter of $50 that Harrison would be the next president, and that a certificate of deposit was issued, and it was stated, that $50 more should be deposited on or before November 1st; that on that day the deposit was increased accordingly; that the deposit was made in Ziba Harnden’s name, and that he thought he deposited the money for himself, but would not be positive ; that he was positive he handed the money to him; that the first $50 might have been paid to him by somebody else, but was certain Harnden handed him the second $50; that Mrs. Harnden demanded the money of him, and the other $100 he paid over to Kempter or Eertig, he did not remember which.</p> <p>David Wood, on the part of the defendant, testified that he was present in the bank when money was put up on the bet, and went there, hearing that money was about to be wagered on the result of the election, to get information to challenge persons who might offer to vote; that Kempter, Scott, Reitzel, and Quackenbush were in, and the subject of the bet was discussed; that Kempter stood at the desk, and had $50 down on it, and asked the other parties whose name they would have the bet in; that they had not then put up their money; that Kempter was addressing Reitzel; that they had some conference, and Kempter waited rather impatiently for the name they would have it in; that Quacken-•bush handed Reitzel a $5 gold-piece, and Reitzel passed it ■and a bank check to the defendant, Melby; that they had not then determined in whose name they would have the bet, and sent out and got Harnden in; that Hamden did not ■contribute anything to the $50; that Melby said the amount handed in by Reitzel was rather more than the amount bet, but the latter said they would arrange that later; that this ■occurred October 25, 1892. On cross-examination, he said he was there for a purpose and observed closely; that Scott appeared to be the leading spirit, and that Reitzel handled the money, and that he was not certain that Harnden was there when the money was passed over; that it was handed over before it was determined in whose name they would have the bet, and that he did not think Harnden touched the money; that he did not take anything from his pocket or produce anything to contribute to it; that he thought Reitzel handed the money in, but was not absolutely positive. “ He first had the money when I saw it, and it was passed in from his hands, even if he handed it to some one else. He produced it.”</p> <p>On motion of the plaintiff’s counsel the court directed a verdict in favor of the plaintiff for $100 and interest, and from a judgment thereon the defendant appealed.</p>

<p> Griminal law: Jurisdiction of justices of the peace in Milwaukee. </p> <p>Seo. 13, suboh. 20, ch. 184, Laws of 1874, as amended by sec. 57, ch. 324, Laws of 1882 (providing that justices of the peace elected in the city of Milwaukee “shall not have jurisdiction . . . in criminal cases within the city ”), construed in connection with secs. 2499, 2501, S. & B. Ann. Stats, (which give the municipal court exclusive jurisdiction “in cases of crimes and misdemeanors arising in said city ”), is held not to deprive such justices of jurisdiction of offenses committed outside of the city but within the county of Milwaukee.</p>

<p> Voluntary assignment: Discharge: Mortgage: Foreclosure: Judgment for deficiency. </p> <p>The discharge of an assignor from his debts, under secs. 1702g, 1702r, S.-& B. Ann. Stats., is not a bar to the foreclosure of a mortgage given by him and a sale of the mortgaged premises to satisfy the debt secured thereby; but where the mortgagee is a resident of this state and has proved his claim in the assignment proceedings the discharge is a bar to a personal judgment against the assignor for any deficiency on the foreclosure sale.</p>

~W. Newman, Circuit Judge. On January 29,1889, the defendant, for value, made and executed to the plaintiffs, under their firm name of Johnson & Larson, his promissory note for $267.19, dated on that day and due in one year. On April 18,1890, the defendant,, a resident of La Crosse county, executed and delivered to S. A. Daniels an assignment for the benefit of his creditors, pursuant to the statute.

~W. Eewmae, Circuit Judge. Personal injuries. The plaintiff was riding on the back seat of a light spring wagon oyer a highway in the defendant town. The seat on which she was riding was a lumber-wagon seat, temporarily placed there, and not fastened down, but kept in place laterally by three-quarter inch strap-iron flanges.

W. ISTewmak, Circuit Judge. This action was for the recovery of damages against the defendant town for an injury received by the plaintiff while traveling upon and along one of its highways, alleged to be defective and insufficient by reason of the^fact that a bridge had been rebuilt by the authority of the town across the highway where it passed along and over an embankment .about fourteen feet wide and about two feet high, and the rubbish, consisting of old planks, pieces…

M. Morrow, Circuit Judge. The action is upon a joint and several promissory note executed by the defendants to the plaintiff. It is defended by H. L. Knapp alone. The defense is that at the time of the execution of the note IT. L. Knapp was a married woman, the wife of the defendant II. A. Knapp, and that she signed the note as surety for a debt of her husband, and not in any way for the advantage of her separate estate or business.

<p> Arbitration: Agreement to submit: Notice of rules governinghorse races. </p> <p>An advertisement by an agricultural society that the races at its annual fair would he conducted “under rules of American Trotting Association ” was not notice to one who entered horses in such races that the society was a member of said association and that all questions arising upon the races were to be referred to it for decision, so as to render the decision of the association upon a question so referred binding upon him.</p>

M. MobRow, Circuit Judge. This action was brought by George H. Ray, assignee under a voluntary assignment of the firm of McDonald Bros., against one G-ideon C. Hixon, for the purpose of setting aside certain real-estate mortgages and bills of sale of personal property which were given by McDonald Bros, to se¿ cure repayment of a loan of $75,000 made by Hixon to them January 21, 1889.

Webb, Circuit Judge. This action was brought to obtain a judgment for the dissolution of a partnership between the parties under the name- and style of W. H. Stacy, at Keshena, Wis., for the appointment of a receiver, the application of the firm property to the payment of its debts, and a division of the remainder between the parties according to their rights, and for general relief.

<p> Injury from defective highway: Notice of defects: Contributory negligence: Court and jury. </p> <p>1. Evidence that there were deep, sharp holes between the logs of a corduroy road, caused by their gradual wearing out and rotting,, was sufficient to sustain a verdict to the effect that the highway was defective and that the town was chargeable with notice of its-condition.</p> <p>2. Plaintiff was traveling over such road, at a time when it was covered with water from a heavy rain, with three other adults and three children in a democrat wagon, one hind spring of which was-broken, lowering that corner of the box four to six inches. The wagon went suddenly into a deep hole between the logs, and plaintiff, with the rear seat on which she was riding, was thrown-backwards out of the wagon and injured. Held, that the question of contributory negligence was for the jury.</p>

Webb, Circuit Judge. The complaint alleges that on January 31,1893, the plaintiff fell and fractured his shoulder bone, by reason of the insufficiency and want of repair of the sidewalk along the easterly side of Spruce street in the defendant city, at the place therein designated; and, for another cause of action, that on February 22, 1893, he slipped and fell and was severely injured, by reason of the insufficiency and want of repair of the sidewalk along the northerly…

Webb, Circuit Judge. This is an action to recover damages for tbe value of a borse alleged to bave been killed by tbe negligence of tbe defendant town in not keeping a public highway within its limits in suitable repair.

Webb, Circuit Judge. The plaintiff brought an action against the defendant to-recover what it was reasonably worth for boarding, lodging,, and medical attendance of the defendant’s minor son for four years and ten months, alleging that the same was reasonably worth $8 a month,— in all, $464.

Webb, Circuit Judge. One Charles P. Millerd, a retail grocer, was indebted to the plaintiffs. He sold his business to the defendant, who was his father. The defendant paid a part of his indebtedness to the plaintiffs and refused to. pay more.

Webb, Circuit Judge. This is an action of ejectment commenced June 3,' 1889,. to recover eighty acres of land. Held: especially in the case of official deeds, that when the record contains a recital that the proper seal has been affixed it shows sufficiently for the purpose of notice that the deed is sealed; and this principle of decision has been adopted and recognized by this court in language more emphatic than has been used by any other court.

Webb, Circuit Judge. This action was brought by the plaintiff, as administratrix of tbe estate of her deceased husband, Peter S. Peterson, to-recover against the defendant damages sustained by the death of her husband, caused by its negligence and default, while in the employ of the defendant in' its steam sawmill,, working at a machine therein called an “ edger.” The allegations of negligence and default on the part of the defendant were denied, and the defendant alleged…

<p>Appeal from a judgment of the circuit court for St. Croix county: E. B. Bundy,.Circuit Judge.</p> <p>This is an action of trover to recover for the alleged conversion of a large amount of saw logs. The plaintiffs claim title to the logs by virtue of their alleged ownership of the-lands from which they were cut. The defendants -deny the plaintiffs’ title to the logs, and claim themselves, to own them, because, as they claim, they owned the lands from which they were cut. The title to the lands was the issue-which was tried.</p> <p>The title to two distinct tracts of land is involved. Of one tract the title had formerly been in one of the plaintiffs, hut had become divested by a tax title. The tax title-was owned by the estate of one R. S. Fay, of Boston, Mass.. Ray had been, dealing in. tax titles' in "Wisconsin, and one <7. S. Baker was his agent. Baker did the business in Ray’s name, and was to have one half the net profits of the business for his compensation. He had no further interest in the lands covered by the titles in which Ray dealt. Baker quitclaimed this tract to the plaintiffs, who paid him $25 for the deed.</p> <p>The title to the other tract was in this wise: The defendant Patrióle Fox negotiated for the purchase of this tract, for the purpose of cutting its timber and selling it to the Burlington Lumber Company. He had no money with which to pay for the land. He arranged with the Burlington Lumber Company to advance the money needed for the purchase of the land, and to talje the title to the land to secure its repayment. He then made a contract with the plaintiffs, whereby the defendants Rox & Son agreed to log from the lands in the season of 1887-88, and deliver to the plaintiffs, 1,200,000 feet of logs for an agreed price. It was further understood that the plaintiffs were to give Rox & Son advances by way of supplies. To secure the performance of this contract, Rox & Son gave the plaintiffs a mortgage upon their teams and camp and logging outfit and some other logs. The plaintiffs at the same, time made a contract with the Burlington Lumber Company to deliver the same logs to it on terms then agreed upon. Rox & Son got out and delivered to the plaintiffs a large amount of logs in the season of 1887-88, but were indebted to them for a balance on the season’s transactions. But in the meantime Rox & Son, through an arrangement with the plaintiffs, had repaid to the Burlington Lumber Company the money it had advanced for the purchase of the land, and were not indebted to it on any account. In the winter of 1888-89, Rox & Son cut the logs in dispute from the lands of which the title was so held by the Burlington Lumber Company and the lands covered by the tax title, and sold them to the other defendants. Afterwards the Burlington. Lumber Company con-yeyed to the plaintiffs the title which it had, “with all timber cut by trespassers upon said lands.”</p> <p>The trial was by the court: There was a finding and judgment for the plaintiffs. The defendants appeal.</p> <p>To the point that the retention by Fay’s executors of the proceeds of the sale by Baker estopped them from disputing the validity of such sale, counsel for the respondents cited Field v. Doyon, 64 Wis. 560; Schenck v. Sautter, 73 Mo. 46; Moore v. Mill, 85 N. C. 218; France v. Haynes, 67 Iowa, 139; 7 Am. & Eng. Ency. of Law, 19</p>

<p>Railroads: Fences: Killing of horse on trade: Evidence.</p> <p>The evidence in this case that plaintiff’s horse, which was killed upon defendant’s track, came upon the right of way at a point where it was unfenced, is held sufficient to support a verdict in plaintiff’s favor for the value of the horse.</p>

<p>Ditches and drains: Police power: Mandamus to compel town officers t& act: Costs.</p> <p>The laying out of ditches under oh. 54, E. S., being an exercise of the-police power, town officers in acting upon a petition for such a ditch do not act on behalf of the town, and the town is not liable for costs in a proceeding by mandamus to compel them to act.</p>

Croix county: E. B. Bunny, Circuit Judge. Tbe plaintiff brought bis action against tbe defendants, wbo carried on business under tbe name of F. Permmgton in manufacturing lumber at tbeir mill, to recover tbe sum of $700 and interest, under a contract by wbicb be was to work for them as foreman and saw filer for tbe period of •one year from April 1,1890, to April 1, 1891; tbe defendants to pay him tbe sum of $1,000 and bis board for such services,— for tbe first seven months…

<p>Appeal from a judgment of the circuit court for St. Oroix county: E. B. Bundy, Circuit Judge.</p> <p>The plaintiff was a boy of eighteen years and weighed-175 pounds. He had lived all his life upon a farm and was accustomed to work. He had been to school, and had a fair common-school education, and was of fully ordinary intelligence. He was employed by the defendant to load dirt and loose stones upon flat cars.' The dirt was removed from the, top of a rock cut. It was carried in wheelbarrows along and over- a timber eight inches by ten inches, to the car. It was a plain timber, without .¡guards of any kind. It bridged a space of about twenty feet, from the end of the car to the top of the cut, and was ten to twelve feet above the roadbed. The wheelbarrow which the plaintiff used was an old one, whose axle did not run true. Plaintiff selected it from a pile of wheelbarrows for this use. He helped to repair it,, and knew its infirmity. He testified that he was told to be careful not to run off; that he knew, if he lost his balance and the wheelbarrow ran off, he was liable to fall down. He knew, if the wheelbarrow ran off, he would have to jump or he would fall off. He knew all about that. That was plain to be seen. He worked at this work two and one-half days. The wheel ran off the timber; he lost his balance, fell, and was injured.</p> <p>At the close of the testimony the defendant requested the court to direct a verdict for the defendant, which was refused. There was a verdict and judgment for the plaintiff. The defendant appeals.</p>

<p> Master and servant: Defective appliances: Death of employee: Assumption of risk: Contributory negligence: Evidence: Instructions. </p> <p>1. In an action for the death of plaintifE’s intestate, alleged to have been caused by the negligent and defective construction of the track in defendant’s mill yard along which the deceased was assisting in moving a car loaded with lumber, by reason 'of which the car left the track and the lumber fell upon him, the evidence (stated in the opinion) is held sufficient to sustain a verdict for the plaintiff.</p> <p>2. In such case a charge to the jury which made- the questions of assumption of risk and contributory negligence turn upon whether the deceased knew and fully comprehended the danger, instead of whether, in the exercise of ordinary care, he ought to have observed and comprehended such danger, was erroneous.</p> <p>3. An instruction which left the jury to infer that the plaintiff was entitled to recover unless they found that the deceased “recklessly exposed himself to peril of the existence of which he knew, and failed to exercise the care for his personal safety that might reasonably be expected of him, and such conduct on his part contributed to the injury,” was misleading.</p>

<p> Instructions to jury: Applicability to be decided by the court: Curing error by subsequent charge: Injury to employee from dangerous machinery: Assumption of risk: Proximate cause: Special verdict. </p> <p>4. It is the duty of the court to decide whether a proposed instruction is applicable to the evidence, and it is error, upon giving an instruction, to say that the jury may use it as far as they find it applicable.</p> <p>■2. In an action for personal injuries sustained by an employee while oiling machinery in a sawmill, instructions asked by defendant, which were particularly applicable to the testimony and correctly stated the law as to assumption of risk and contributory negligence, were given with the statement that the jury might use them as far as they found them applicable. Held, that the error was not cured by subsequently charging the jury to the effect that a man must use due diligence and use1 his senses, and if he fails to use such diligence as a man of ordinary prudence would, and thereby suffers an injury, he has not used ordinary care.</p> <p>3. In submitting for special verdict the question whether plaintiff was injured by defendant’s want of ordinary care, which caused the injury, it was error to charge that if the jury found that there was a want of ordinary care on defendant’s part they should answer the question in the affirmative, since this withdrew from them the question whether such want of ordinary care was the proximate cause of the injury.</p> <p>4. From the mere fact that an employee, after being engaged in oiling the machinery in a sawmill, asked to be retained in such work, it cannot be held that he represented himself as competent for the position and assumed all the risks, it, not appearing that such request had anything to do with his retention.</p>

<p>Appeal from a judgment of the circuit court for Dunn county: E. B. Buhtdy, Circuit Judge.</p> <p>This action was brought by the plaintiff to recover against the defendant town the damages she alleged she had. sustained in consequence of a personal injury received while traveling upon one' of its highways, by reason of its insufficiency and want of repair. The complaint contained the usual allegations, and the answer was substantially a general denial.</p> <p>The evidence tended to show that the road at the point where the accident happened was on a side hill, made by plowing into the hill and throwing out the dirt. The road was on the side hill for a distance of eighty or one hundred .rods, and portions of it steep and part of the way sandy. It was very narrow at the point in question at the top’ of the hill, — only seven or eight feet wide, — but practically straight and level, and the roadbed was firm and smooth, the side hill rising on the right hand and the steep slope descending on the left; that there was some snow and ice on and along and next to the right-hand or hill side. The evidence also tended to show that the plaintiff was familiar with the road and had traveled it frequently, and that on the occasion in question she and her three children were riding in a buggy in which there was but a single seat, drawn by her father’s horse, Avhich was old and blind and had been for several years; that he had a habit when driven of carrying his head to the left and veering around in that direction and getting out of the road, but the evidence on this point was conflicting. It appeared that the plaintiff had often driven the horse. She sat on the left hand of the seat, holding her infant in her arms. Her three-year old girl was between her and her brother; and her boy, eight years old, was standing in the back part of the buggy, holding on to the seat. The brother, about twenty-three years of age, was driving, holding the reins in one hand, and they had been talking until they reached the level place described in the road, when the horse, buggy, and all who were in it went over the bank at the left of the track, falling down the hillside, and the plaintiff received the injury of which she complains, namely, a fracture of one of, the bones of the arm and a dislocation of the wrist. It was not yet dark when the accident occurred, and neither the plaintiff nor her brother could state very definitely how it happened. She said: “ The first we knew of it, the front wheel went over the bank, and that drew the horseback, and all. ... I could not tell whether the horse stumbled, or had a snowball on his feet that caused him to stumble, or whether it was the buggy that slid.” Her brother testified: “I was driving along, and the.first thing I knew we went over the bank. It was done so suddenly that neither of us knew how the accident occurred.” There was other evidence tending to show contributory negligence on the part of the plaintiff, and also evidence to reb.nt such claim.</p> <p>The court submitted the case to the jury to find a general verdict, and to answer therewith two questions, namely: (1) Was the highway at the point where the accident occurred in a reasonably safe condition for the passage of vehicles over it? (2) Was the plaintiff or her brother, who was driving at the time, guilty of any want of ordinary care which contributed to the plaintiff’s injury? The jury retired to consider of their verdict, and the nest day returned in court and reported they had not agreed upon a verdict, and the court ordered them to retire for further consideration. On the same day the jury again returned and desired a view of the place of the accident, which was ordered and had, after which the jury proceeded to further consideration of the case, and at 9 o’clock in the evening they returned with a general verdict in favor of the plaintiff for $250, answering the first question in the negative, and to the second question they answered, “ There was some want of care.” The court returned the verdict and questions to the jury on the ground that the second question was not properly answered, instructing them that the answer was insufficient,— first, because the jury did not say whether the plaintiff was guilty of any want of ordinary care; second, the answer did not say whether the want of care contributed to the injury; and the court instructed the jury as to the different degrees of care and of negligence, and that they should answer the question as it reads, by “Yes” or “No,” and that: “Of course, if you answer £Yes,’ to the second interrogatory, the general verdict for $250 cannot stand.” The jury again retired for half an hour, and afterwards returned to the court with a verdict and answers as before. The court returned the verdict and questions on the ground as before, and said: “ The second interrogatory I want you to answer by e Yes ’ or ‘ No.’ You came to the conclusion that there was some want of care. You don’t say what kind of care; ” and instructed the jury again on the different degrees of care and negligence, and said: “Now if you say that she or her driver was guilty of any want of ordinary care, this verdict of $250 cannot stand, nor any other verdict in favor of the plaintiff, but if you should say she was guilty of no want of ordinary care, then, if the other facts exist as you have found them here,— the insufficiency of the highway, and the injury resulting from it,— as I told you in my charge, then she can recover. She is not required to use extraordinary care, and your answer don’t say what kind of care there was. There might have been a slight want of ordinary care. Now, understand, a person passing along a highway is obliged to use no more care than an ordinarily prudent person would exeroise under like circumstances, — such ordinarily prudent men as you see every day; and I want to know whether the driver did exercise that kind of care or not.” A juror then asked: “ If, as a jury, we say she is’guilty of slight care, that would not debar her of the $250 ? ” to which the court replied: “ I want you to answer that question as put to you, and do nothing else, — ‘Yes’ or ‘No.’ If you undertake to split hairs, you will get it mixed up sure.” The court ordered the jury back to consider of their verdict, and on the same day, at 10 o’clock P. M., the jury returned in court with a general verdict for the plaintiff as before, and answered both questions in the negative. After a motion for a new trial had been overruled, judgment was given on the verdict, from which the defendant appealed.</p> <p>To the point that it was the duty of the jury to make direct and positive answer to the questions submitted, and respondent certainly cannot be heard to say that the trial court erred in requiring tíre jury to make suck, answer to tke second question, counsel for tke appellant cited Dmis v. Farmington, 42 Wis. 425; Gmroll v. Bohan, 43 id. 218; 2 Tkomp. Trials, § 2685, and cases cited.</p> <p>inter alia, tkat tke general verdict and special findings as originally returned were sufficient to sustain a judgment for tke plaintiff. Wkere tke special findings can, on any reasonable kypotke-sis, be reconciled witk tke general verdict, tke latter will control. Louisville, E. dk St. L. O. R. Go. v. Summers, 131 Ind. 241; Peninsular L. T. c& M. Go. v. Franldi/n Ins. Go. 35 W. Ya. 666; Evansville v. Thacker, 2 Ind. App. 310; Stein v. G. & G. T. R. Go. 41 Ill. App. 38; Shoner v. Penn. Go. 130 Ind. 110. A special finding cannot override a general verdict, unless tke record clearly skews upon its face tkat botk cannot stand. Block, v. Haseltme, 3 Ind. App. 491; Schaffner v. Holier, 2 id. 409; Reeves’ Estate v. Moore, 4 id. 492 ;■ Grand R. <& I. R. Go. v. Gox, 8 id. 29. Tke answer to tke second question as first returned was equivalent to a negative answer. Elgin, J. <& E. R. Go. v. Raymond, 148 Ill. 241; Louisville, H. A. da G. R. Go. v. Costello, 9 Ind. App. 462; Fowler v. Linguist, 31 N. E. Rep. 133. Tke presumption is tkat tke jury kad considered tke testimony bearing on suck question and found no want of ordinary care before rendering tke general verdict. Spencer v. Williams, 160 Mass. 17; Poseyville @. Lewis, 126 Ind. 80. Tke court did not err in its ckarge to tke jury after tkey kad brougkt in tkeir first verdict and answers to questions submitted. Ryan v. Rockford Ins. Go. 11 "Wis. 611; Ghopin v. Badger P. Go. 83 id. 192; Hoppe v. G., M. da St. P. R. Go. 61 id. 368; WigJvt/man v. G. da FT. W. R. Go. 13 id. 113; Reed v. Madison, 85 id. 667.</p>

<p>Appeal from a judgment of the circuit court for Dane couuty: R. Gr. Siebeckee, Circuit Judge.</p> <p>In consideration of $40, paid to the defendant by the plaintiff, the defendant, April 24, 1890, executed and delivered to the plaintiff a policy of insurance against loss or damage by fire to an amount not exceeding $2,000, for the period of one year from that date, upon the property therein described, to wit, on ice and packing contained in frame sectional icehouse building known as “ No. 1 ” on private map (being the three sections nearest the lake), and in cars near thereto, situated on the bank of Monona Lake, opposite Madison, and adjoining Tewes’ icehouse. On January 1, 1891, the said icehouse and ice and packing therein were destroyed by fire. On January 31,1891, proofs of loss were made by the plaintiff and served upon the defendant, stating that at the time of issuing the policy there were 4,800 tons of ice therein belonging to the plaintiff, and that at the time of the fire there were 600 tons of ice therein, of the actual value of $900.</p> <p>On December 24,1891, the plaintiff commenced this action to recover the amount of such loss, and alleged the full performance of the conditions of said contract of insurance. The defendant answered, and put in issue the several allegations of the complaint, and also set out certain conditions of the policy alleged not to have been complied with.</p> <p>At the close of the trial the jury, by the direction of the court, found, as matters of fact, from the undisputed evidence, (1) that the plaintiff, April 25, 1890, was not the sole owner of the ice and packing contained in frame sectional icehouse building known as “No. 1” on private map (being the three sections nearest the lake), situated on the bank of Monona Lake, opposite Madison, and adjoining Tewes’ ice-house ; (4) that the ice and packing which said plaintiff and his partners claimed to own at the time of the fire, January 1, 1891, were contained in said three north sections of said icehouse building; (J) that á change had taken place in the title, location, or possession of the property covered by said insurance policy, by the sale, transfer, or conveyance thereof, in whoie or in part, without the consent of the defendant indorsed upon said policy; (8) that a large portion of the ice described in and covered by said policy had been removed from said icehouse after April 25, 1890, and prior to the date of the fire, January 1,1891. And the jury further returned a special verdict to the effect (2) that the plaintiff did not at the time the contract of insurance was made, and on or before April 25, 1890, represent to Hugh Martin that he (the plaintiff) was the sole owner of the ice and packing contained in said icehouse; (3) that the ice and packing which said plaintiff and his partners owned at the time the contract for said insurance was made was contained in the north three sections of said icehouse building, being the three sections next to Monona Lake; (5) that the said plaintiff and his said partners did in fact own the ice contained in said section 1 at the time of the fire, or when the contract of insurance was made; (9) that the actual value of merchantable ice in section No. 1 of said icehouse building, counting from Lake Monona, damaged by the fire January 1,1891, was $80.67, interest included; (10) that the actual value of merchantable ice in sections Nos. 2 and 3 of said icehouse building, counting from Lake Monona, damaged by fire January 1, 1891, was $1,183.21, interest included.</p> <p>In pursuance of an order of the court, judgment was thereupon entered in favor of the plaintiff in the sum of $1,263.89 damages, and $82.91 costs and disbursements. Prom that judgment the defendant appeals.</p> <p>They argued among other things that where</p> <p>the insured accepts a policy in which the authority of the agent is defined and limited, such provisions are binding upon him, and any attempt on the part of such agent to waive or vary the written terms of the contract is a mere nullity. Hankins v. Bochford Ins. Co. 70 Wis. 1; Benier v. Dwelling II. Ins. Co. 74 id. 99; Ilnudson v. Hekla F. Ins. Co. 75 id. 198; Carey v. German Am. Ins. Co. 84 id. 80. The question of waiver should have been submitted to the jury. McFei/ridge v. Phenix Ins. Co. 84 Wis. 200. The court bolow should, in any event, have apportioned the damages found by the jury, in accordance with the condition of the policy. Hibernia Ins, Oo. v. Starr, 13 S. W. Eep. 1017; Continental Ins. Co. v. Hulmán, 92 Ill. 145,156; Worth Am. F. Ins. Go. V. Zaenger, 63 id. 464, 466; Lawrence v. Mut. I. Ins. Oo. 5 Ill. App. 280; Hew York Gent. Ins. Go. v. Watson, 23 Mich. 486, 488; Mutual JB. I. Ins. Oo. v. Hew-ton, 22 Wall. 82; Moore v. Protection Ins. Oo. 29 Me. 97, 102; Pencil <o. Home Ins. Go. 3 Wash. 485, 489; Hanover F. Ins. Go. v. Brown, 77 Mel. 64, 72; Page v. Sun Ins. Office, 64 Fed. Eep. 194; Bachmeyer v. Mut. B. F. L. Asso. 82 Wis. 255, 260, 263; May, Ins. § 453; Ogden v. East B. Ins. Oo. 50 „N. Y. '388; Fitzsimmons v. Oity F. Ins. Go. 18 Wis. 234; Lucas v. Jefferson Ins. Oo. 6 Cow. 635; Sherman v. Madison Mut. Ins. Oo. 39 Wis. 104. And this clause need not be specially pleaded. Merchants' 8. Oo. v. Gonvm. Mut. Ins. Oo. 51 N. Y. Super. Ot. 444; Alexander v. Continental Ins. Oo. 67 Wis. 429.</p> <p>contended, inter alia, that plaintiff was entitled to recover for his full loss. Without proof-upon the subject as to other insurance, the face of the policy, providing the plaintiff proved his loss to be that much, would be the rule of damages. The condition as to liability in case of other insurance is a condition subsequent which modified the right of the assured to recover the full amount. Conditions subsequent must be pleaded to avail in defeating or limiting the recovery. Home Ins. Oo. v. Gaddis, 3 Ky. Law Eep. 159. This case is no different from the ordinary case of double insurance. Plaintiff could have but one satisfaction, but there is no limit to his recovery up to the full amount of the insurance, provided he proves loss up to that amount. Wiggin v. Suffolk Ins. Go. 18 Pick. 145; Hewby v. Beed, 1 W. Bl. 416. Plaintiff is not limited in his recovery to the amount stated in his proofs of loss. They do not estop him from showing the actual loss and from recovering the full amount. 8ibl&}/ v. Prescott Ins. Co. 57 Mich. 14; Miaghan v. Hartford, F. Ins. Go. 24 Hun, 58; Lebanon Mut. Ins. Co. v. Kepler, 106 Pa. St. 28.</p>

<p>Appeal from a judgment of the circuit court for Dane county: R. Gr. Siebeokee, Circuit Judge.</p> <p>Action to recover upon a mutual life insurance policy. The defendant issued an indemnity policy to one Holman Boorman, August 24,1885. This policy was conditioned for the payment of certain assessments by the assured, and provided (1) for the payment of forty per cent, of the proceeds of an assessment (not exceeding, however, $500) in case of total and permanent incapacity to perform manual labor; (2) for the payment, in case of death or on the 24th day of February, 1926, of eighty per cent, of the proceeds of an assessment, not exceeding $2,000. The policy was payable to the assured or, in case of his death, to Maggie Boorman, his wife, if living; otherwise to the heirs of the assured. It contained no provision avoiding it in case of suicide. On the 14th day of April, 1887, Maggie Boorman, the beneficiary, died, leaving an infant child, which died two months later.</p> <p>The complaint claims that Holman Boorman became gradually unsettled in his mind after the death of his wife, so that in January, 1890, he was in fact insane and incompetent to transact business. It is further alleged, and the fact appears by the proof, that on the 2d of January, 1890, the defendant, having determined to issue a new form of policy, sent to Holman Boorman by mail a printed document which: was a formal application in blank for the surrender > of' his old certificate and for a certificate in the new form in exchange therefor, together with a circular letter explaining the advantages of the new form of certificate over the' old, and informing old members that they could make the-exchange, upon a statement of good health, within sixty clays. The proposed new certificate provided that “ suicide' or self-destruction of the member herein named, whether-voluntary or involuntary, sane or insane at the time thereof, is not a risk assumed by the association.” It contained also provisions for the payment of partial indemnity in case of accidental loss of hands, feet, arms, or legs, and in case of • total blindness; also for the payment, February 24, 1926, of forty per cent, of an assessment, not exceeding $1,000, and! for the payment at death of eighty per dent, of an assessment, not exceeding $2,000. These changes were detailed! in the circular accompanying the blank application. Soon' after receiving these papers Holman Boorman went to the' office of the defendant company at Madison, and surrendered his certificate, and thereafter a policy of the new form was. issued to him, dated January 29, 1890, but the evidence-tends to show that he did not receive it until about March 11, 1890. This last policy was payable to the assured, if living; if not, to his mother (the plaintiff); if none, to his wife; if none, to his parents; if none, then to his heirs. The-complaint alleges that Holman Boorman was at the time of this exchange wholly incompetent to transact any business, and that the defendant then and thereby perpetrated a fraud on the assured and his representatives.</p> <p>Holman Boorman died intestate, March 18, 1890, leaving his mother as his only heir. The complaint alleges that the cause of his death was an “ overdose of laudanum, taken while insane.” The giving of notice and proofs of death as required by the policy, as well as the performance of all conditions and payment of all assessments by the assured, is alleged, and judgment is demanded for the sum of $2,000, alleged to he due upon the original policy of insurance. The answer denies any insanity or incompetency on the part of Holman Boorman, and alleges that he exchanged policies voluntarily and while in full possession of his faculties. The answer also alleges that the assured committed suicide, and pleads the clause in the second policy excluding the risk of suicide as a defense.</p> <p>At the close of the plaintiff’s evidence the circuit judge held that there was no proof of insanity or incapacity to transact business, and directed a verdict for the defendant, and from judgment thereon the plaintiff appealed.</p> <p>They contended, inter alia-, that it is difficult to understand how a witness who was nonexpert could have a better opportunity for judging the mental condition of a person than by constant association with him at the same work for ten hours a day for two weeks time. The ruling excluding such testimony is contrary to the weight of authority. Woodcock v. Johnson, 36 Minn. 217; Oolee v. State, 75 Ind. 512; Conn. Hut. L. Ins. Go. v. lathrop, 111 U. S. 619; 7 Am. & Eng. Ency. of Law, 501; Burnham v. Mitchell, 31Wis. 130; JTcmke v. State, 51 id. 464; Smith v. Hiclcenbottom, 57 Iowa, 733; Holcomb 'v. State, 41 Tex. 125; Blaclcstone v. Standard L. <& Acc. Ins. Go. 74 Mich. 592.</p> <p>They argued, among other things, that there is no evidence in the case of any insanity on the part of the assured sufficient to warrant the deduction that he was not perfectly competent to understand the transaction by which the exchange was consummated. The proof shows' that he did understand it. Under the facts and circumstances of the case the law itself stamps the exchange as binding and valid. Lynch v. Dora/n, 95 Mich. 395; Blakely Will Case, 48 Wis. 294; English v. Porter, 109 HI. 285; Buswell, Insanity, §§ 211, 213, 274, 276; Tozer v. Saiurlee, 3 Grant, Gas. 162; Jackson v.-King, 4 Cow. 207, 217 eb seg.; Oassoday, Wills, §§ 438, 440; Yam Cuyslvn v. Van Kuren, 35 N. T. 70; Wilson v. Mitehdl, 101 Pa. St. 495; Chajm Will Case, 32 Wis. 557; Prentis v. Bates, 88 Mich. 567. The opinion of the nonexpert witness as to the sanity of the deceased was properly excluded on the ground that he had not stated sufficient facts on which to predicate an opinion. 7 Am. & Eng. Ency. of Law, 506, 507; Denning v. Butcher, 59 N. W. Rep. 69; Yankee. State, 51 Wis. 469, 470; Turner v. Cook, 36 Ind. 129; Mull v. Carr, 5 Ind. App. 491; Lawson, Expert Ev. 476; McLeod v. State, 31 Tex. App. 331; Mite v. Comm. 20 S. W. Rep. 217; Brown v. Comm. 14 Bush, 405.</p>

<p> Descent: Next of kin: Husband and wife: Tenants in common. </p> <p>UJnder Terr. Stats, of 1839, p. 184, seo. 38 (providing that the land of .a person dying intestate and without children “shall descend ■equally to the next of kin in equal degree, and those who represent them, computing by the rules of the civil law ”), the father •and mother of the deceased, if living, were the next of kin, and the land descended to them equaEy as tenants in common, and upon the death of the mother her moiety descended to her heirs.</p>

<p>'¡Excise laws: Special election to fix license fees: Form, of ballots: Notice: • Certiorari.</p> <p>1. The provision in sec. 1548b, S. & B. Ann. Stats., as to the form of ballots to be used in special elections to determine the amount to be paid for liquor licenses, was not repealed or modified by ch. 288, Laws of 1898, relating to general elections for officers.</p> <p>'£. Separate ballots for each of the different sums which might be fixed, and having such sums printed thereon respectively, following the words “ To be paid for license,” were in conformity with said sec. 1548b, which provides that the ballots “ shall have written or printed thereon the words ‘ To be paid for license $- — ,’ and shall have written or printed thereon in words or figures the sum to be paid for such license, according ’to the will of the person voting,” etc.</p> <p>'3. It being provided that notice of such special election shall be given in the manner provided for giving notice of general elections, the notice is to be given in the manner provided in secs. 9-11, ch. 288, Laws of 1893. Secs. 26,27 of that act, providing for publication of the nominations to office, have no application.</p> <p>4. Upon certiorari to review the proceedings bf such an election, no irregularity being affirmatively shown, the writ was properly quashed.</p>

<p>Bepobted from the circuit court for G-rant county: Geo. Clementson, Circuit Judge.</p> <p>On September 26, 1898, a complaint in writing was made to T. F. Baldwin, a justice of the peace residing and having his office in Lancaster, Grant county, Wisconsin, and sworn to before said justice of the peace, of which the following is a copy:</p> <p>“COMPLAINT EOR CRIMINAL WARRANT.</p> <p>“ State of Wisconsin, Grant County, Gity of La/ncaster — ss.: James Ballantine, A. C. Tubbs, and Grant Ballantine, of lawful age, being severally duly sworn, on his oath, each for himself makes complaint and says that he has good reason to believe that George Hiokoli did on the 9th day of September, A. D. 1893, at said county, unlawfully vend, sell, deal, and traffic in, and, for the purpose of evading the laws of this state, give away, certain spirituous, malt, ardent, and intoxicating liquors and drinks, without first having obtained a license therefor according to the laws of this state, contrary to the form, foroe, and effect of section 1550 of the Bevised Statutes of the state of Wisconsin, as amended by section 1 of chapter 322 of the laws of said state passed’ in the .year 1882, and .section 4 of chapter 296 of the laws of said state passed in the year 1885, and against the peace and dignity of the state of Wisconsin,— and prayed that the said George Hickok may be arrested and dealt with according to law. JaMes BallaNtiNE,</p> <p>“ GrRANT BALLANTINE,</p> <p>“A. C. Tubbs.</p> <p>“Subscribed and sworn to before me this 26th day of September, A. D. 1893. T. F. Baldwin,</p> <p>“ Justice of the Peace.”</p> <p>Thereupon a warrant of arrest was issued by said justice under said complaint, describing the offense in the exact language of the complaint. The defendant was thereupon arrested upon said warrant and brought before said justice. After pleading not guilty, he was tried and convicted, and thereupon appealed to the circuit court for Grant county.</p> <p>Before the trial was entered upon in the circuit court the defendant moved to dismiss the action and discharge the defendant, for the reason that the complaint failed to state any town, city, or village in which the alleged offense was committed. Said motion was overruled by the circuit court, and the defendant, March 6, 1894, put in a verified special plea to the same effect, and also that he held a license from the town of Wyalusing to sell intoxicating liquors in the village of Bagley therein.</p> <p>The state thereupon demurred to said special plea, and said demurrer was sustained by the circuit court. A jury was waived and the case was tried by the court, and, the defendant having been found guilty, before sentence, by consent of the defendant, the cause was certified to this court on the following questions, to wit:</p> <p>“ First. Does a complaint charging a sale of intoxicating liquors in Grant county, Wisconsin, on September 9, 1893, without a license (without naming any town, city, or village therein), state an offense with sufficient certainty and precision to apprise the defendant of the offense for which he is to be tried?</p> <p>“ Second. Can the court pronounce sentence on a judgment of conviction on this complaint?</p> <p>“ Third. Does the adoption of prohibition in a town, city, or village, under the provisions of ch. 521, Laws of 1889 (Local Option Law), suspend, repeal, or abrogate the provisions of the general law regulating the license and sale of intoxicating liquors within said district? Can a prosecution be maintained under either law?”</p> <p>To the point that the complaint does not fail to charge an offense because the name of the town, city, or village where the sale of liquor was made is not named, they cited Boldt v. State, 72 Wis. 7; Hall v. People, 43 Mich. 417; R. S. secs. 4658, 4659, 4669; Hintz v: State, 58 Wis. 493; State v. Gwmner, 22 id. 441, 442; State v. Bielby, 21 id. 204, 206; 1 Bishop, Orim. Proc. §§ 49, 364, 367, 370, 371; Heikes v. Comm. 26 Pa. St. 519; Carlisle v. State, 32 Ind. 55; Comm. v. Tollwer, 8 Gray, 386; State v. Smith, 5 Har. (Del.), 490; State v. Shaw, 35 Iowa, 575, 578; Jenlcs v. State,- 17 Wis. 665.</p> <p>contended, inter alia, that an offense must be stated with sufficient certainty to enable the defendant to know for what particular offense he is to be tried, and as a bar to further prosecutions. State ex rel. Sullivan v. Tomah, 80 Wis. 198; State v. Burohard, 57 N. W. Rep. 491; Black, Intox. Liq. § 461; Arrington v. Comm. 87 Ya. 96; TJ. S. v. Mills, 7 Pet. 138; H. S. v. Simmons, 96 U. S. 360; Archbold, Orim. PI. (13th ed.), 41. The second question should be answered in the negative. Under sec. 1563, R. S., the place where liquors are sold in violation of law is a public nuisance and, on conviction of the keeper thereof, must be shut up and abated. Kansas under a similar statute, so holds.' Hagan v. State, 4 Kan. 89; State v. Sterns, 28 id. 154. An order abating the nuisance must be a part of the judgment. State v. Waelcer, 71 Wis. 672.</p>

<p>Habeas Coepus. The sheriff of Milwaukee county, to Avhom the writ Avas directed, made return thereto, and the petitioner demurred to such return.</p>

Webb, Circuit Judge. Action on contract for tbe balance of tbe contract price of lumber sold. The facts were not materially disputed.

<p> Master and servant: Dangerous employment: Killing of minor servant: Assumption of rislc: Court and jury. </p> <p>Plaintiff’s intestate, a minor employee of defendant, was killed while assisting in the skidding of logs. The skidway was at the foot of a steep hillside, down which the logs were rolled, the employees - catching and straightening them when they began to roll crooked.. The intestate, without any previous experience in this work, had been engaged in it for about five days when he was run down by a rolling log and killed. Upon the evidence (tending to show,, among other things, that the work had elements of danger not obvious to the inexperienced) it is held that the questions whether the deceased was adequately instructed as to the ordinary dangers of the employment, and whether he assumed the risk, were for the jury.</p>

<p>Appeal from an order of the circuit court for Columbia vcounty: E. G-. Siebeceek, Circuit Judge.</p> <p>The action is on a demand for labor and services. An answer, consisting of a general denial only, was served April 11,1894. On May 4, 1894, and after the cause had been noticed for trial by the plaintiff, the defendant served an amended answer, containing a counterclaim. The plaintiff’s .attorney received the amended answer without objection, admitted “ due service ” in writing, and retained it until the term. At the term the defendant’s attorney moved to strike the case from the calendar, on the ground “ that the case was not at issue at the time notice of trial was served.” By the court it was “ ordered that said motion is denied, and that the amended answer is not properly a part of the record herein, for the reason and upon the sole ground that the ■amended answer was not served within twenty days from the time of the service of the plaintiff’s complaint herein.” The appeal is from this order.</p> <p>To the point that the mere fact that the plaintiff noticed the case €or trial after the service of the original answer and before the service of the amended answer was not fatal to the defendant’s right to amend as of course, they cited 2 Wait, Pr. 502; Townsend v. Hillmcmn, 9 N. Y. Supp. 629; Wash-hum vu Herriolc, 4 How. Pr. 15; Plumb v. Whipple, 1 id. 411.</p> <p>argued, among other •things, that the statute under which the defendant claims the right to serve Ms amended answer was adopted by our legislature in 1856, word for word from the FTew York Code,, and has never been changed in this state. Sec. 172, FT. Y. Code of- 1849; sec. 80, ch. 120, Laws of 1856; sec. 2685,. S. & B. Ann. Stats. The Hew York decisions prior to the-adoption of the statute in this state are numerous and conclusive against the defendant’s claim. Lampson v. McQueen, 15 How. Pr. 345; Fawrcmd v. Herbeson, 3 Duer, 655; Plumb v. Whipple, 7 How. Pr. 411. In 1859 the FTew York statute was slightly amended, and has ever since been different from our statute. McQueen v. Babcock, 22 How. Pr. 229.</p>

<p>Appeal from a judgment of the circuit court for Dane county: B. Gr. Siebecker, Circuit Judge.</p> <p>The complaint alleges, in. effect, that Eebruary 10, 1898, James Eapinos, while passing on foot over the defendant’s right of way at Scott street crossing in the village of Mazo-manie, was, by the negligence of the defendant, struck by detached freight cars and badly injured, without any fault or negligence on his part. The answer consists of admissions and denials.</p> <p>At the close of the trial the jury returned a special verdict to the effect: (1) That the defendant’s servants and employees who had charge of the train at the time in question were not in the exercise of ordinary care in the management and running of the engine and cars at the time in question; {2) that such lack of exercising ordinary care on their part was the direct cause of the injury to the plaintiff; (3) that the east end of the approaching cars, when the plaintiff started from the place where he stood, south of the main track, to go across the track, was sixty feet west of him ; (4) that the plaintiff, when he started from the place where he stood, south of the main track, to go across it, did not look west along the track to see if there were cars coming; (5) that the plaintiff, when he started to cross the main track, was fifteen feet south of it; (6) that the cars in passing from the coal shed to the west end of the station platform moved at the rate of six miles per hour; (7) that the plaintiff was not guilty of any want of ordinary care which directly contributed to produce the injury; (8) that the plaintiff’s damages were assessed at $5,000. Erom the judgment in favor ■of the said James Eapinos entered on that verdict the defendant appealed. Since taking said appeal, and on December 23, 1894, the said James Eapinos died in Milwaukee, •and thereupon, on April 3, 1895, John Schlvmgen was appointed administrator of his estate, and has been substituted ras plaintiff in this action.</p> <p>As to tbe negligence of tbe plaintiff they cited McKinney v. O. da K. IT. R. Go. 81 Wis. 282; /Schilling v. G., M. da Si. P. P. Go. 71 id. 255; Schmolse v. G., M. da St. P. R. Go. 83 id. 659; Elliott v. G., M. da St. P. R. Go. 150 U. S. 245; Haetsch v. G. da N. W. R. Go. 87 Wis. 304; Pullea v. O. da K. W. R. Go. 86 id. 173; Brunette v. G. da JK. W. R. Go. id. 197; Hansen v. G., M. da St. P. R. Go. 83 id. 631; Magner v. Trues-dale, 53 Minn. 436; Regan v. O., M. da St. P. R. Go. 85 Wis. 43; Jenson v. G., St. P., M. da O. R. Go. 86 id. 589; Woodard v. K. 7., L. E. da W. R. Go. 106 N. T. 369; Byrne v. K. a, F. S. da M. R. Go. 24 L. R. A. 693; Tuclaer v. K. P. O. da H.R. R. Go. 124 N. T. 308; Burle v. K. 7. G. da H. R. R. Go. 73 Hun, 32; McGee v. Oonsolidated St. R. Go. 60 N. W. Rep. 203; Ga/rd/ner v. JD., L. da K. R. Go. 97 Micb. 240; Haight v. A. 7. G. R. Go. 7 Fans. 11; Buelow v. G., St. P. da K. G. R. Go. 60 N. W. Rep. 617; Kelson v. JD., S. S. da A. R. Go. 88 Wis. 392; Blount v. G. T. R. Co. 9 C. O. A. 526; Myers v. B. da O. R. Go. 150 Pa. St. 386; Penn. R. Go. v. Bell, 122 id. 58; Marland v. P. da I. E. R. Go. 123 id. 487; McOabe v. G., St. P., M. da O. R. Co. 88 Wis. 530.</p> <p>To tbe point that tbe plaintiff was not guilty of contributory negligence as a matter of law., and that tbe question of bis negligence, under all tbe facts and circumstances in tbe case, was properly submitted to tbe jury, they cited Winey v. G., JM. da St. P. R. Go. 61 N. W. Rep. 218; Valin v. M. da K. R. Go. 82 Wis. 1; Langhoff n. M. da P. dm G. R. Go. 19 id. 489; Louclcs v. G., JM. da St. P. R. Go. 31 Minn. 526; Roberts v. O. da K. W. R. Co. 35 Wis. 679; Philadel/phia, W. da B. R. Go. v. Stinger, 78 Pa. St. 219; Tovmley v. O., M. da St. P. R. Go. 53 Wis. 626; Butler v. M. da St. P. R. Go. 28 id. 487; Bower v. O., M. da St. P. R. Go. 61 id. 457; Ferguson v. Wis. Gent. R. Go. 63 id. 145,; Duame v. O. & FF. W. R. Go. 72 id. 523, 530; Ward v. G., St. P., M.&O.R. Go. 85 id. 601; Whalen v. G. &FF.W.R. Go. 75 id. 654; Johnson v. L. S. T. & T. Go. 86 id. 64; Ditberner v. ■O., M. & St. P. R. Go. 47 id. 138; Phillips v. M. & FT. R. Go. 77 id. 349; French v. T. B. R. Go. 116 Mass. 537; Tyler -y. FF. 7. & FT. E. R. Go. 137 id. 238; Spencer v. 1. G. R. Go. 29 Iowa, 55; Arta v. G., R. 1. & P. R. Go. 34 id. 153; Farley v. G, R. I. &P. R. Go. 56 id. 337; Donnell v. D., L. & W. R. Go. 39 N. J. Law, 193; Delaware, L. & W. R. Go. v. Converse, 139 U. S. 469; Patton v. F. T., Y. & G. R. Go. 12 L. R. A. 184; Chicago & F. I. R. Go. v. Sedges, 105 Ind. 398; O’Oonnor v. M. P. R. Go. 94 Mo, 150; Alabama & V. R. Go. v. Summers, 68 Miss. 566; Brown v. FF. 7. G. R. Co. 32 N. Y. 597; Breckenfelder v. L. S. & M. S. R. Go. 79 Mich,. 560; Philadelphia & R. R. Go. v. Qa/rr, 99 Pa. St. 505.</p>

G. Síebeobse, Circuit Judge. This is an appeal from an order denying a motion to require the complaint to be made more definite and certain.

<p>Appeal from a judgment of the eircn.it court for Adams county: R. G-. Sibbecker, Circuit Judge.</p> <p>A common-law certiormd was issued, on the petition of the appellant, to a justice of the peace for Adams county, to review his proceedings in an action before him in which the said respondent was plaintiff and the appellant was defendant, and which resulted in a judgment against the latter, and in favor of the plaintiff therein, of $3 damages and $59.62 costs. From the copy of the docket the justice returned to the writ, it appeared that a summons was issued in favor of Hunt against Jones as defendant, returnable as provided by law; that on the return day the parties appeared at the proper time, when the defendant filed a written oifer of judgment, which was not accepted, and the cause was adjourned at the defendant’s request until June 25, 1891. Upon the adjourned day the parties appeared and the defendant called for a jury, which appears to have been summoned, and the trial proceeded until June 27th, when the jury found a verdict for the plaintiff for three dollars, upon which judgment was given as stated. The docket does not contain any entry showing the nature of the action or of the plaintiff’s claim, nor does it appear that he made any complaint, either oral or written, or that the defendant made any plea or answer, nor was there any paper returned by the justice affording any information whatever in respect thereto.</p> <p>The circuit court gave judgment affirming the judgment of the justice, with costs, and the plaintiff in the writ of certiorari, Jones, appealed.</p>

<p>Appear from a judgment of the circuit court for Dane county: R. Gr. Siebeokee, Circuit Judge.</p> <p>Ejectment for a strip of land three feet wide and eight rods long, in the village of Marshall. The complaint is in the usual form. The answer is a general denial, except that it admits that the defendant is in possession and claims title by tax deeds.</p> <p>The plaintiff produced in evidence a chain of conveyances, showing title in him of lands described as follows: “ Commencing at the southwest corner of lot .five (5), in block sixty-five (65), according to the recorded plat of the village of Marshall, as recorded in the office of the register of deeds; thence running east fifty-seven (57) feet; thence north eight .(8) rods; thence west fifty-seven (57) feet; thence south eight (8) rods, to the place of beginning.” This description does not cover or include the tract described in the complaint, nor any part of it, nor does it touch it at any point. The plaintiff and his predecessors in possession have occupied the tract described in the complaint, together with adjoining lands, supposing that they owned it by virtue of such conveyances, for more than twenty years; and the plaintiff himself has occupied it for more than fifteen years, supposing that it was included in the description in such conveyances. The court, against objection, received extrinsic evidence to show that the description in the conveyances was intended to describe and include the strip described in the complaint.</p> <p>The defendant relied upon a tax deed and possession under it, claimed to have been taken with the consent of the plaintiff. The plaintiff denies that he consented to defendant’s possession, and claims that it was taken by intrusion into his peaceable possession. He contests the validity of the tax deed, on the ground that it was taken without the notice of intention to take it, required by sec. 1175, R. S., at a time when the premises were actually occupied by him, and upon a false affidavit that they were unoccupied. Upon these questions raised by the defense there was a conflict in the testimony.</p> <p>The court directed a verdict for the plaintiff. From a judgment on that verdict the defendant appeals.</p>

<p> Accident insurance: False statement in application: Occupation: Evidence. </p> <p>1. An accident policy, the validity of which was conditioned on the truthfulness of the statements in the application therefor, was avoided by a false statement in such application as to the occupation of the insured.</p> <p>2. An applicant for accident insurance stated that he was a carpenter, and millwright. In an action on the policy he testified that aft the time he made the application he was cutting cordwood, an'd that at the time of the accident, some months later, he “ was fram-’ ing timbers — framing sets and caps.” He was impeached by several of his neighbors, one of whom testified that he was not a carpenter and millwright, and this testimony was not contradicted. Held, that a finding of the jury that he was a carpenter when he made the application was contrary to the evidence.</p>

Action to recover upon a policy of fife insurance. On the-31st day of October, 1889, the plaintiff Jane Roberts owned a dwelling house in the city of Kaukauna, and the household-furniture and personal property therein. The plaintiff O’ Con-nell had a mortgage on the real estate, upon which there was. due at the time of the trial of the action $112.33.

This action was brought by the plaintiff, one of the employees of the defendant company on its night repair force •at the city of Eaukauna, to recover damages sustained in ■'consequence of an injury received by Mm in the yard of •the company at said city wMle engaged in his work, alleged 'to have been caused by the defendant’s negligence, on the ■morning of December 24, 1891, while it was yet very dark.

<p>Appeals from orders of the circuit court for Shawano county: Johh G-oodland, Circuit Judge.</p> <p>The duly verified complaint, omitting formal parts, is as follows:</p> <p>“ The above-named plaintiff, by Mylrea, Marchetti & Bird, his attorneys, for a complaint alleges and shows to the court:</p> <p>“ Eirst. That defendant The Whitcomb Lumber Company at all the times herein mentioned was, and still is, a corporation organized under the laws of Wisconsin, and doing business at Whitcomb, Shawano county, Wisconsin, where, among other things, in its business it operated a certain machine for the purpose of sawing timber into firewood, which sawing machine consisted of a large circular steel saw attached to a frame and run by steam at a high rate of speed.</p> <p>“ That at all times herein mentioned said defendant Parian Semple was an officer of said defendant company, and as such officer, as plaintiff is informed and believes, had full charge, management, control, and supervision of said sawing 'machine and assigning of employees to operate the same, and caused the same to be built expressly for said company and erected on their grounds and used in their business.</p> <p>“ That said sawing machine, as plaintiff is informed and believes, was dangerous, defective, and unfit for use, and of a dangerous and unsafe design and plan. That said saw was improperly, defectively, and insecurely fastened to the shaft upon which it revolved, all of which was well known to both of said defendants at all times herein stated and for a long time prior to February 14, 1892.</p> <p>“That on or about the 14th day of Eebruary, 1892, said plaintiff entered the employ of said defendant corporation as a common laborer, and was placed by said company at work about said sawing machine, and stationed by it in front of the same. That there was no barrier erected between said saw and the place where plaintiff was stationed, or guards of any nature or description, and that it was a dangerous and unsafe place in which to place a man to work.</p> <p>, “ That said plaintiff was wholly inexperienced in work in sawmills, or about sawing machines, or any similar kind of work, all of which was well known to both of said defendants.</p> <p>“ That neither of said defendants gave plaintiff any instructions whatever as to the dangers attendant upon such work, or informed him of the dangerous construction of said machine or the defective condition thereof, and that it Was all unknown, to this plaintiff until after the injury hereinafter mentioned.</p> <p>“ That on the loth day of February, 1892, and the day after said plaintiff entered upon the performance of his duties as aforesaid, and while in the employ of said defendant company at the place designated by them for him to work, the •said saw, by reason of its defective construction and defective and insecure fastening, while the same was revolving, became separated from the.skaft to which it was fastened, and struck this plaintiff ..with great force upon his left arm and shoulder, and otherwise injuring his body, by reason of which plaintiff became for a long time sick and lame, and was prevented from prosecuting his work as a laborer or any work whatever, and suffered great bodily pain, and was put to great expense for medical assistance and other care, and that said left arm. and shoulder have become permanently stiff, so that he is unable to use them for any manual labor, thus greatly impairing his ability to earn a living, all to his damage in the sum of ten thousand dollars.</p> <p>“ Wherefore plaintiff demands judgment against said defendants for the sum of ten thousand dollars and costs.”</p> <p>To this complaint each defendant interposed a separate demurrer. The demurrer of the defendant The Whitcomb Lumber Gompany specified as grounds therefor: First, that several causes of action have been improperly united; second, that the complaint does not state facts sufficient to constitute a cause of action against the defendant The Whitcomb Lumber Gompany. The separate demurrer of PaLlan Semple specified as grounds therefor: First, that several causes of action have been improperly united; second, that the complaint does not state facts sufficient to constitute a cause of action against the defendant Pa/clan Semple.</p> <p>The plaintiff having made a motion to strike out as frivolous each of said demurrers, and the same coming on for argument, the demurrer of the defendant The Whitcomb Lumber Conypamy was overruled, and ■ the demurrer of the defendant Parlcvn Semple was sustained. From the order overruling the demurrer of The Whitcomb Lumber Company said defendant The Whitco7nb Lumber Company appeals; and from the order sustaining the demurrer, of the defendant Parian Semple the plaintiff, August Greenberg,-appeals.</p> <p>They argued, among other things, that the complaint states a cause of action against the defendant company. Barney v. Hartford, 73 Wis. 95; Carey v. C. & H. W. B. Co. 67 id. 608; Young v. Lynch, 66 id. 514; Fitts v. Waldeclc, 51 id. 569. Whether or not such an accident should reasonably have been anticipated by defendant is a question to be determined by a jury and not by the court on demurrer. For similar cases see, Columbian & P. S. B. Co. v. Hawthorne, 3 Wash. Ter. 353; Heltonmlle Mfg. Co. v. Fields, 36 FT. E. Rep. 529.</p> <p>For either misfeasance or malfeasance an agent is person-' ally liable. Bed v. Josselyn, 3 Gray, 309; Osborne v. Morgan, 130 Mass. 102; Delaney v. Boehereau, 34 La. Ann. 1123; Ha/t'rvma/n v. Stowe, 57 Mo. 93; Mechem, Agency, §§ 540, 571 et seg.; Story, Agency, §§ 311, 312; Bishop, FTon-Contract Law, §§ 622, 627, 695; Carey v. Bochereatb, 16 Fed. Rep. 87; Shearm. & Redf. Ueg. (3d ed.), § 112. Here positive, affirmative acts of negligence are alleged. Semple built a defective machine; he knew its defective and dangerous condition; he placed it in the yard to be used by employees who, he knew, would endanger ther lives by such use. This was a positive wrong on his part. The fact that he did it as agent of another, and also bound that other, makes it none the less a wrong on his part. Pede v. Cooper, 112 Ill. 192; Bennett v. Ives, 30 Conn. 329; Griffiths v. Wolfram, 22 Minn. 185; Hanalcesworth v. Thompson, 98 Mass. 77; Bichan'ison v. Kimball, 28 Me. 463, 476; Cram v. On-derdonlc, 67 Barb. 47, 56; Cambell v. Portland Sugar Go. 62 Me. 552; Brohaw v. H. J. Ií. de T. Go. 32 N. J. Law, 328; Horner v. lcmrence, 37 id. 46; Wright v. Wilcox, 19 "Wend. 343; Phelps v. Want, 30 N. Y. 78; Sioydam v. Moore, 8 Barb. 358; Moore v. Pitohbiorg P. Gorp. 4 Gray, 465; Gilmore v. Driscoll, 122 Mass. 199; Peed v. Peterson, 91 Ill. 288, 297; Weber v. Weber, 47 Mich. 569; Berghoff <o. McDonald,87 Ind. 549; Beering, Neg. § 221. If botb corporation and agent are liable, they may botb be joined in this action. For a tort tbe plaintiff may sue one, any, or all wbo are bable. Tbis rule applies to tbe joinder of tbe master witb bis servant, and tbe principal witb bis agent. Sbearm. & Redf. Neg. § 115; 1 "Wait, Pr. 131; Beering, Neg. § 221; Johnson v. Barber, 10 Ill. 25; Phelps v. Wait, 30 N. Y. 78, and cases cited.</p> <p>Tbey contended, inter alia, that tbe complaint shows no defect in tbe machinery which caused or contributed to tbe injury. Tbe defect should be specified. Plaintiff does not make a case by simply alleging that defendant has been guilty of negligence. Goff v. G. P. & M. P. Co. 86 "Wis. 237; Maxwell, Code PL 241; 2 Estes PI. (3d ed.), § 2010, and cases cited. Tbe allegation that tbe saw became loosened or separated from tbe arbor shows no defect in tbe machine, because all machines are so designed and made that the saws can be loosened and removed from the arbor from time to time by tbe operator of tbe machine, as occasion requires. Giving this complaint a liberal construction, it shows that tbe saw became loosened while in use because it bad not been properly adjusted. Tbe nut was not on tight enough, and the saw came off from tbe arbor and struck tbe plaintiff and injured him. Tbe defect was not in the construction but in tbe use of tbe machine. A failure on tbe part of an employee or operator of a machine to properly adjust it was the neglect of a co-employee. Defendants’ negligence cannot be conjectured from the mere fact of the accident. Redmond v. Delta L. Go. 96 Mich. 545. See, also, Ling v. St. P., M. da M. R. Go. 50 Minn. 160; Van den Heuvel v. Wat. F. Go. 84 Wis. 636; Pesohel v. G., M. & St. P. R. Go. 62 id. 338; Johnson v. Ashland W. Go. IT id. 53; Whitnoam v. W. do M. R. Go. 58 id. 413; Johnson v. Boston T. B. Go. 135 Mass. 211, 212; Gollins v. St. P. da S. O. R. Co. 30 Minn. 31; Kliegel v. Weisel da V. Mffg. Co. 84 Wis. 148. For all that appears from the complaint the plaintiff’s injury was purely accidental, unforeseen, and -unaccountable. Wood v. G., M. da St. P. R. Go. 51 Wis. 196; Schultz v. G. da W. W. R. Go. 6T id. 616. The master is not liable for accidents not likely to happen. 14 Am. & Eng. Ency. of Law, 819. Nor for injuries which appear to be the result of an unaccountable accident. Morrison v. Phillips do O. Const. Co. 44 Wis. 405; Steffen v. G. da W. W. R. Go. 46 id.-259.</p>

This action was commenced in September, 1893, to recover $81.62 on account for goods sold and delivered by the plaintiff to the defendant, with interest thereon from February 24, 1893. The plaintiff made an affidavit in said action for an attachment on the ground that the defendant had assigned, conveyed, and disposed of his property with intent to defraud his creditors.

<p>Appeal from a judgment of the circuit court for Outa-gamie county: John G-oodland, Circuit Judge.</p> <p>The facts are stated in the opinion.</p>

<p> Wills: Construction: Compensation of executor: Appeal: Exceptions. </p> <p>1. By his will a testator, after giving to his wife the use and income of his estate during her life, bequeathed “ after the death of my said wife ... to my sons M., P., and F., to S. as a trustee upon • the trusts hereinafter specified for my son J. and my daughter B., . . . to each the sum of §1,800.” He then gave all the residue of the estate “ to my said sons M., P., and F., S. as trustee as aforesaid for my son J., my said daughter B. and to my said son F. in trust for . . . my daughter M.” The trusts upon which the bequests ’ wer’e made to S. in favor of J. and to F. in favor of M. were specified, but no further mention was made of any trust in favor of B. Held, that the word “to ” should be supplied in each instance before the words “my daughter B.,” and that she took under the will a legacy of $1,800, and one sixth of the residue, free from any . ■ trust.</p> <p>2. The will provided that if J. should leave children surviving at his death the sum held in trust for him should be divided among them, but that if he should die leaving no children then said sum should be divided among the other children of the testator. Held, that during the life of J. there could be no binding judgment determining whether or not the will referred only to his death before that of the testator.</p> <p>3. A codicil made some years later, after reciting the above-mentioned legacy of one sixth of the residue of the estate to the testator’s son F. in trust for his daughter M., revoked it and “instead thereof ” gave to said M. “in her own right the said one-sixth” of the residue of the estate which should remain after the death of the tes- . tator’s wife. Held, that this was intended merely to turn the trust estate in favor of M. into a legal estate, and that she took thereunder only one sixth of the residue after payment of the several legacies of §1,800 each and the debts and expenses of administration.</p> <p>4. The estate consisted wholly of personalty, and the testator’s widow was entitled under the will to so much of the income thereof as she might require for her own use during her life, the rest, if any, to be added to the principal. The executor held the estate and did not file his final account for settlement until shortly after the widow’s death, more than seven years after the will was probated. Held, that he was entitled so to hold the estate upon the trust implied by law from the will to collect and pay over the income to the widow during her life, and that, not having qualified as testamentary trustee, he held the estate by his title as executor until he settled his final account, and that he was entitled to compensa-. tion for his services as executor during that time.</p> <p>5. The county court may, upon notice as prescribed in sec. 3931, E. S.,. settle and allow an executor’s or administrator’s account at any time before the rendition of his final account; and an account thus settled and allowed will be final and conclusive upon all. matters embraced in it, and can be impeached or re-opened only' for fraud or mistake.</p> <p>6. Such an allowance of an executor’s account, though including extra compensation for his services contrary to County Court Eule XVII, sec. 6, is none the less conclusive and cannot afterwards be avoided for the mere error in practice.</p> <p>7. The executor in this case having skilfully and successfully managed the estate for more than seven years, collecting, loaning, and re-loaning on mortgage securities the moneys thereof, so that, besides satisfying the provision for the widow and paying the expenses of administration, the estate was increased from about $33,000 to over $48,000, his services were properly considered “ extraordinary,” and extra compensation, not exceeding the amount allowed him by the testator for substantially the same services rendered in the lifetime of the latter, was properly allowed.</p> <p>8. The objection that the claim for extra compensation was not setup as a claim in the executor’s final account as required by County Court Eule XVII, sec. 3, not having been raised in the county court nor on the trial of the appeal to the circuit court from the allowance, is not available on the appeal to the supreme court.</p> <p>9. Where no objection was made or exception taken at the trial the supreme court will not review the evidence. It will consider only matters pointed out by exceptions or appearing upon the face of the record proper.</p>

<p><1, 2) Receivers: Validity of appointment: Collateral attack: Jurisdiction. (3) Insolvent mutual insurance company: Assessment, what may include.</p> <p>1. Where the court appointing a receiver had jurisdiction of the subject matter, and he has qualified, the validity of his appointment cannot be contested when it comes in question collaterally, as in an action brought by him.</p> <p>■2. If the showing upon the application for the appointment of the receiver was inadequate, that fact, while it might render the order of appointment erroneous, does not affect the jurisdiction of the court over the subject matter.</p> <p>3. After the insolvency of a mutual fire insurance company and the appointment of a receiver, an assessment may be made upon both deposit and premium notes for the proportionate share of losses and expenses which accrued during the term of insurance, and such assessment may include the amount necessary to pay interest on uncontested losses and the debts of the company from the time they ought to have been paid; also an allowance for shrinkage, that is, for assessments that may prove uncollectible; also a reasonable amount for expenses and compensation of the receiver.</p>

<p> Criminal law and practice: Murder: Evidence: Instructions: Self-defense: Manslaughter: Urging jury to agree. </p> <p>1. On a trial for murder a witness for the state, after testifying that shortly after the homicide the defendant gave him some cartridges, belonging to the gun with which the killing was done and said that he was going away and did not want the cartridges or the gun, was allowed to testify that he supposed the defendant meant that he was going “ over the road.” Held, that the error, if any, did not affect the substantial rights of the defendant and hence should not work a reversal.</p> <p>2. The mere fact that the deceased, with whom defendant had been quarreling, took out his knife when defendant approached him with a gun, would not justify an instruction that the jury should acquit the defendant if they found that he fired the shot with the belief that it was necessary in self-defense.</p> <p>3. Defendant and the deceased had been drinking and had quarreled. Defendant had procured a gun, and the deceased had grasped if with one hand, when it was fired and deceased was shot. The court charged the jury that if -a person voluntarily becomes so drunk as to be incapable of intending murder, and while in that condition kills a person, “he is guilty of murder in the second degree, unless there be something in the circumstances to render such killing a homicide of a lesser degree or excusable or justifiable,” and that “if the gun was accidentally discharged while they were struggling for its possession, and without any design to kill or purpose to commit harm, such killing would be excusable, and the verdict should be not guilty.” Held, that the omission to give a specific instruction as to manslaughter was not a ground for reversal, especially in the absence of any request for such an instruction.</p> <p>4. After the jury had failed to agree, they were told by the court that they ought not stand out obstinately, but should reason together, harmonize their differences if possible, and arrive at some kind of a verdict, and that if they wanted no enlightenment upon the law in the case they might return to their room and continue to deliberate upon the issues until they had arrived at a verdict. Held, that this was not improper as being a threat that the jury would not be discharged until they had agreed, nor as expressing an opinion as to the facts.</p>

<p> Criminal law: Fraudulent conveyance of incumbered real estate. </p> <p>The offense of fraudulently conveying incumbered real estate, under ch. 244, Laws of 1887 (S. & B. Ann. Stats, sec. 4431a), may be committed by one who does not himself execute the deed but procures another person, who holds the legal title in trust for him and who does not know of the incumbrance, to make the conveyance. Pinney, J., dissents.</p>

ExoeptioNS from the circuit court for Ashland county: John K. PaRish, Circuit Judge.

N. AustiN, Judge. Motiou to dismiss appeal. Tbe defendants Weber were partners in business in Milwaukee, owning a large stock of dry goods. On tbe 5th day of September, 1894, judgment upon a judgment note was entered in tbe superior court of Milwaukee county in favor of tbe appellant and against tbe firm of Weber Bros., and execution was issued to tbe sheriff upon sucb judgment.

<p>Appeal from an order of the circuit court for Rock county: John R. Bennett, Circuit Judge.</p> <p>The action is to recover from the city of Edgerton certain moneys alleged to be due from it to the county of RoeJc under the provisions of ch. 417, Laws of 1S87. The complaint states, in substance? that the defendant is an incorporated city within the limits of Rook county; that for the years 1889 to 1893, inclusive, it granted thirty licenses for the sale of intoxicating drinks; that it has not paid any part of such license moneys into the treasury of Rock county, hut is indebted to the county therefor, in all, in the sum of $1,500, — and demands judgment for the same. The city demurred to the complaint. The demurrer was sustained, and the county appeals.</p>

BeNNEtt, Circuit Judge. Action for money bad and received. The plaintiff, in August, 1885, owned a large farm in the town of Bradford, Rock county, Wisconsin, which was then in possession of one Millington, a tenant, to whom it had been leased in the year 1884 for a term of five years at a rental of $1,000 per year. In the summer 'of 1885 the plaintiff resided, in London, England, and continued to reside there until the fall of 1891, when she returned to Wisconsin.

BbNNett, Circuit Judge. This was an action for slander, and the defendant was charged with having wilfully and maliciously spoken of and concerning the plaintiff certain false and slanderous words, set out in the German language in the complaint, which, when translated into the English language, are as follows: “ Just as well as you believe of mother that my wife has beaten her, just so well we can believe that mother said, 1 Emil (meaning the plaintiff) has penned up pigs…

<p> Eminent domain: Drainage: Public use: Constitutional taw, </p> <p>1, Ch. 401, Laws of 1891 (providing for the laying of ditches, drains, etc., and authorizing the taking of property therefor when it shall be made to appear to the circuit court that such works “are nee-essary or will be useful for the drainage of the lands proposed to be drained thereby, for agricultural, sanitary or mining purposes ”), fails to express that the work must be necessary or desirable to promote any public interest, convenience, or welfare, or that the taking of property is to be for a public use, and is therefore invalid.</p> <p>2. The word'“sanitary” in said act does not import the idea of the public health.</p>

<p> Wills: Construction: Cumulative or substitutional bequest? </p> <p>A husband executed to a trustee for his wife a bond, secured by mortgage, for $6,000, reciting that he desired to provide for her “ a suitable allowance out of his estate,” and providing that said sum should become due and payable' to her, or to the heirs of her body by a former husband, upon the death of the obligor, or, in case of her death before his, then said sum should become due and payable to the heirs of her body, and when paid the same should be in full of all claims of dower or otherwise which she might have in his property; also that he or his representatives should have two years after his death or the death of his wife to make the payment, by paying interest at seven per cent, from the date' of said death. Some years later he made a will by which he bequeathed to his wife, “ in lieu of all other allowances,” the sum of $6,000 for her own use, and the use of all his household furniture during her lifetime. After his death, by not electing to take under the statute, the widow elected to take the provision made for her in the will. Held,, that/as the sum bequeathed and the sum secured by the bond and mortgage were of equal amount, and were given with the same motive, and vested in the widow at the same time, the provision in the will was intended as a satisfaction of and a substitute for the provision made in the bond and mortgage.</p>

Clemesttsost, Judge. Action for abatement of a private nuisance and for dam•ages for tbe maintenance of the same. The nuisance complained of consisted of a tight board fence erected by -defendant, -which encroached upon a private right of way ■ owned by the plaintiff, so as to leave the way but seven feet in width at one end and seriously impair its usefulness for passage with teams. The action was tried by the court without a jury.

S. Griswold, Judge. This is an appeal from a judgment of the county court of Waukesha county in favor of the garnishee. T. Haynes & Son were a copartnership in business at Waukesha. On the 2d day of December, 1893, there were two mortgages upon parts of their stock in trade. One mortgage was to Wells, Nellegar & Co., for $301.23, upon nine bicycles, each particularly described. They had sold •one of the bicycles and used the money.

Scott Sloak, Circuit Judge. The facts are stated in the opinion. contended, inter alia, that on the plaintiff’s own testimony defendant was not guilty of cruel and inhuman treatment. Mere austerity of temper, petulance of manner, rudeness of language, want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty. Freeman v. Freeman, 31 Wis. 248; Evans v. Evans, 4 Eng. Ecc.

Clementson, Judge. Hubert Johns entered into a contract of insurance with the defendant in 1885.

Scott Sloan, Circuit Judge. Personal injuries. The plaintiff was driving his team, attached to a pair of bob-sleighs, along a highway of the defendant town, March 7, 1893. There was a wagon box on the sleigh loaded nearly full of corn, with two tiers of bags filled with oats upon the corn, and the plaintiff sat on one of the bags of oats.

Scott Sloan, Circuit Judge. Action against John and William Durant, as joint and several makers of a promissory note to the plaintiff for $800, dated January 6, 1885, payable one year after its date, with interest at eight per cent, per annum. The plaintiff •claimed judgment for $800, with interest from January 6, 1894, up to which time he conceded the interest had been paid. The defendant John Dwrant relied on the statute of limitations of six years.

Soott Sloan, Circuit Judge. This is an action in equity, brought by the administrator with the will annexed of the estate of George Kehr, deceased, to cancel and set aside the satisfaction of a mortgage. George Kehr, deceased, was the father of the respondent,, Jacob Kehr. He had other children, — Mrs. William Koch and Mrs. Martin Henrizi. On the 7th day of March, 1887,, he had conveyed his farm, worth about $7,000, to his son, Jacob, for $5,500.

Scott Sloau, Circuit Judge. The complaint alleges, in effect, that February 19, 1889, one Bathsheba Wilkinson died in Waukesha county, leaving a will in wfiich one William E. Swan was named as executor ; that August 13, 1889, these plaintiffs and the defend ant signed a bond with Swan, as such executor, and as sureties for him, in the matter of said estate; that said Swan thereupon filed said bond, and qualified as such executor, and entered upon the discharge of his duties…

Scott Sloau, Circuit Judge. This is a proceeding begun in the county court of Dodge county by petition of Angelina M. Maxwell for construction of the will of ’William L. Maxwell, deceased. Angelina M. Maxwell was the wife of the deceased up to the 9th day of December, 1884, when a judgment of absolute divorce was rendered in an action brought by William L. Maxwell.

Paeish, Circuit Judge. This is an action brought by the town of Westboro, ■ in Taylor county, against the county, to recover moneys which had been, as is claimed, illegally charged back to the town and added to its taxes by the county board, under sec. 1157, R. S., and collected and paid over to the county by the town treasurer. The case was tried upon .a stipulation of facts.

Paeish, Circuit Judge. On January IT, 1893, tbe plaintiff made and filed with a justice of tbe peace bis complaint on oatb to tbe effect that be was tbe owner and lawfully entitled to tbe possession of one pair of logging sleigbs, about eigbt-feet runners, of tbe value of $50, and that tbe same had been unjustly taken and was unjustly detained by tbe defendant.

Paetsh, Circuit Judge. Action to remove a cloud on title. The complaint alleged ownership in the plaintiff since November 2, 1886, of lot 8, in block 6, original plat of the village of Hurley, Ashland county, and that it is and has been since said 2d of November the plaintiff’s homestead; that the defendant obtained a judgment against the plaintiff, November 10, 1885, for $20,036.45 and costs,'and docketed a transcript thereof in Ashland county, November 12,1885; that…

BabdeeN, Circuit Judge. This action was commenced in the municipal court of Oneida county, to foreclose a laborers lien against certain railroad ties, etc., in that county, for work and labor performed thereon by the plaintiff.

<p> Waters: Dams: Riparian rights: Improvement of navigation: Surplus water: Use for power: Diversion: Prescription: Judgment on appeal. </p> <p>1. As a general rule, the owner of a dam and the water power created by it must return the water to the stream in such a manner and at such a place as not to deprive lower riparian owners of its use as it has been accustomed to flow past their lands.</p> <p>2. The right of the state to improve the Fox river for the purpose of aiding its navigation was superior to the rights of riparian owners, and it might take and divert, absolutely and without compensation, so much of the water as might be required for that purpose.</p> <p>3. The state could not lawfully make a dam or any other improvement in the Fox river for the sole purpose of creating a' water power to-be leased for manufacturing purposes, if such improvement would work injury to a lower riparian owner; but where a dam was made by or under the authority of the state for the bona fide purpose of aiding navigation, and incidentally there was a surplus of water available for power, such power might be leased or sold to private individuals.</p> <p>4 The surplus water of a dam lawfully built in the Fox river to feed a canal around rapids in aid of navigation, although under a statute (Laws of 1848, p. 62, sec. 16) providing that the water power should belong to the state, cannot be diverted from its natural channel to the injury of lower riparian owners, by the state or its grantees, through the canal and sluiceways therefrom.</p> <p>5. The diversion of an inconsiderable portion of such water for twenty years was not sufficient to establish a right by prescription.</p> <p>6. The specific place and the precise manner in which the water must be returned to the stream are. not determined on the appeal in .this case, no such issue having been made or adjudged in the trial court,, and the record furnishing no data for the determination of those matters.</p>

<p>(1-3) Evidence: Physicians and surgeons: Hypothetical questions: What facts may he assumed: Improper answer. (4) Appeal: Exceptions to charge: Sufficiency.</p> <p>1. In an action for personal injuries the evidence that plaintiff was strong and healthy at the time of the accident is held to be sufficient to justify the assumption of that fact in a hypothetical question as to what was the difficulty with which she was afflicted.</p> <p>3. A physician, who had testified to an examination of the plaintiff after the accident, was asked to assume, in addition to the facts stated in such hypothetical question, what he knew from his personal examination, as testified to by him. i3eM,that the question was still an abstract one upon an assumed state of facts, and did not call for the opinion of the witness as to the cause of the plaintiff’s condition.</p> <p>3. A witness, who had testified that plaintiff’s knee was much swollen after the accident, was asked, “ Do you know of any complaint, or of the fact, of any peculiar feeling in the limb? ” An objection to the question as incompetent was overruled, and the witness answered, “At times she feels very much numbed, she has said,— not much feeling in it.” Held, that as the question was fairly capable of a construction which would oall for a proper answer, its allowance without expressly limiting its scope would not work a reversal, especially as there was no motion to so limit it or to strike out the improper answer.</p> <p>4. A general exception to the entire charge on the subject of damages is insufficient to bring tip for review any specific error, where the elements of damage are stated separately, although in the same sentence, and some of them are proper.</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 against the defendant, JDmis, as survivor of the firm of P. H. Leonard & Co., to recover the amount of a bill of goods sold by the plaintiffs to said firm. The complaint charged that the goods, a bill of which was annexed thereto, were sold at the agreed price and to the amount or value of $471.13, and that they were reasonably worth that sum. The defendant, by his answer, admitted the death of Leonard, that he was the sole surviving partner, and that said firm purchased certain goods, etc., from the plaintiffs, and he alleged that the transactions were under the sole supervision and charge of, and conducted by, his said partner, Leonard, and that defendant “was, and at all times has been, by reason thereof, totally ignorant of the nature, character, and extent thereof, and has no knowledge or information sufficient to form a belief as to whether or not the goods, wares, etc., sold by the plaintiffs to the defendant were of the value alleged, or as to what was their true value, or as to whether any price therefor was ever agreed on.”</p> <p>At the trial the deposition of one of plaintiffs’ salesmen was read in evidence, in which he testified to a sale of the goods in question by him on behalf of the plaintiffs to the firm of P. H. Leonard & Co., through Leonard, since deceased, but his evidence as to what took place between the witness and Leonard was objected to, the latter having since deceased. He testified that the goods, at the time they were sold, were reasonably worth the prices and amounts charged for them. The court directed a verdict for the plaintiffs, dnd from a judgment on it the defendant appealed.</p>

<p> Sale of chattels: Oral contract: Statute of frauds: Subsequent payment: Estoppel. </p> <p>1. An oral contract for the sale of logs for a price exceeding §50, which is void under sec. 2308, R. S., because there was no delivery or payment at the time, cannot be validated by mere payment of the purchase money afterwards, unaccompanied by a delivery and acceptance of the logs, or a distinct renewal of, or assent to, the terms of the original agreement.</p> <p>2. If the vendor in such a contract has not intrusted the vendee with the possession of the logs or with any indicia of ownership, he is not estopped to deny the title of a purchaser from the vendee, whom he has done nothing to deceive or mislead.</p>

<p>Appeals from orders of the circuit court for Eau Claire county: W. F. Bailey, Circuit Judge.</p> <p>The complaint alleges, in effect, the incorporation of the plaintiff, and its being duly licensed to do business in this state; that Uovember 24, 1893, the plaintiff having appointed the defendant Thomas W. Thomas as its agent for the city of Eau Claire, the said Thomas, as principal, and the defendants Hotchkiss and Ellis, as sureties, executed a bond wherein and whereby they are held and firmly bound unto the plaintiff in the sum of $750, to be paid to the plaintiff, its successors or assigns, and for which, payment well and truly to he made they hound themselves, their heirs, executors, and administrators, jointly and severally, firmly by said bond; that said bond was duly sealed and conditioned as follows: “ If the said T. W. Thomas shall in all respects observe and fulfill the instructions of [the plaintiff] which may be given to him in relation to such agency through its special agents or other officers or the manager at Chicago, and shall duly and properly account for, pay over, and apply all sums of money which may be received by him as such agent, whether for premiums of insurance, or with which to pay losses, or upon salvages, collections, or otherwise, and shall also duly and properly account for and . apply all goods, chattels, or other property which may come into his hands or possession or under his control for and in behalf of [the plaintiff]; and shall keep true and correct books of account, and make regular and correct reports of the business transacted by him to the said company; and shall in all other respects Avell and faithfully discharge and perform his duties as such agent; and shall, upon the termination of his agency., from whatever cause, deliver up and hand over all of the money, books, accounts, memoranda, property, effects, and other,things belonging to [the plaintiff], or connected with or growing out of the said agency, to such person or persons as [the plaintiff] shall order and direct, then this obligation to be void and of no effect; otherwise to remain in full force and virtue. The sureties on this bond waive notice of any default the said principal may or shall at any time make. Proof of partnership or incorporation waived.”</p> <p>The complaint further alleges that said Thomas continued to act as and be such agent up to March 8, 1894, when his agency was terminated; that as such agent he received in the aggregate $321.13 in premiums collected of various persons therein named, which money belonged to the plaintiff, and which he has not paid to the plaintiff, although payment thereof -was demanded from him and the other defendants March 3, 1894, and at divers times thereafter; that November 4,1893, said Thomas, as such agent, issued and delivered to the Chippewa River & Menomonie Railway Company the plaintiff’s policy of insurance therein described, and received from said railway company $10 as. 4he premium therefor, but that he did not pay the same to the plaintiff, nor any part thereof; that January 19, 1894, said Thomas, with the consent of the plaintiff and the railway company, canceled said policy; that Thomas represented to the plaintiff that it was so canceled without incurring any obligation on the part of the plaintiff, hut that April 26,-1894, the railway company demanded from the plaintiff $56.46 on account of said returned premium, and the plaintiff was compelled to and did pay the same. Judgment is demanded for the two amounts mentioned.</p> <p>To that complaint the defendants HoteKkiss and Ellis separately demurred, on the ground of improper joinder of causes of action, and that the complaint fails to state facts sufficient to constitute a cause .of action against them as such sureties. From orders overruling such demurrers respectively, the said HoteKkiss and Ellis respectively appeal.</p>

<p> Railroads: Injury to person at street crossing: Negligence: Contributory negligence: Dangerous speed: Damages. </p> <p>1. Plaintiff was run into and injured by a train while driving a four-mule team with, a heavy load of lumber across defendants’ tracks on the main street of an unincorporated village. The evidence — showing, among other things, that there were four separate tracks about thirty feet apart crossing the street; that plaintiff was not familiar with the locality; that as he approached his view to the north, whence the train came, was obstructed by a building and by a box car standing on the first track; and that he stopped to look and listen at the last place where he could get a view to the north before commencing to cross the tracks — is held to sustain a finding of the jury that plaintiff was not guilty of contributory negligence, although, perhaps, he did not look to the north immediately after emerging from behind the car on the first track. Nelson v. D., 8. S. & A. JR. Oo. 88 Wis. 392, distinguished.</p> <p>2. Findings by the jury that but one whistle was sounded; that the bell was not rung continuously; that the train was run at the unnecessarily dangerous speed of thirty-five miles an hour; and that these acts and omissions constituted negligence on the part of the defendant and were the proximate cause of the accident, are also held to be sustained by the evidence.</p> <p>3. Although the statute limiting the rate of speed of trains in cities and villages was inapplicable because the village was not incorporated, yet it was a question for the jury whether, under the circumstances, the speed was negligently high.</p> <p>4. An award of $6,000 damages for permanent injuries to the spine, held not excessive.</p>

<p> Equity: Setting aside conveyance of land: Fraud: Undue influence: Inadequate consideration: Evidence: Burden of proof . </p> <p>1. If there was no fiduciary relation between the parties to a conveyance of land, the burden of proof in an action to set aside the conveyance on the ground of fraud and undue influence is upon the plaintiff.</p> <p>2. Where both parties had an equal opportunity to know the value of the land, even a great disparity between such value and the price paid is not evidence of fraud; and the mere inadequacy of consideration, not coupled with other circumstances, such as weakness of mind, a fiduciary relation, pecuniary distress, or the like, is not a ground for setting aside the conveyance.</p> <p>3. A married woman, having one child, conveyed to her brother her interest in the farm which had belonged to their deceased father. It appeared that she was a woman of rather unusual independence of judgment; that she was living with her husband and under his influence and the influences of her home; and that her relations with the grantee were not cordial or confidential. She was, at the time, ill with consumption, of which she died about three months later, but there was nothing but doubtful inference, not clearly supported by facts, from the condition of her health to show that her judgment was in any way disturbed or her natural affections clouded or perverted; and it was not shown that the grantee, at the time, had any opportunity of acquiring an influence over her. Held, that a finding that the conveyance was procured by undue influence was not sustained by the evidence.</p>

<p>Appeal from a judgment of tbe circuit court for Racine ■ county: Feane M. Fish, Circuit Judge.</p> <p>Tbe complaint alleges, in effect, that in September or October, 1891, tbe defendant represented to tbe plaintiff that be was the owner of at least seven eighths of all tbe stock and property of the Wolf & Davidson Dry Dock Company of Milwaukee, and bad control and management of tbe other one-eigbtb interest, and could and would control tbe sale of' the entire property; that be was very anxious to sell out all tbe property and interest be bad in and to said company ; that, if the plaintiff would procure a purchaser or • purchasers for all tbe real estate and personal property of' tbe company, with tbe exception of one vessel named, at a. price not less than $237,500 for the whole, the defendant would pay to the plaintiff upon the completion of such sale,, for his commission and services therefor, $2,500; that it was. understood and agreed by and between them that, in order to effect such sale, it would be necessary to interest a good many persons in making such purchase, and that it was further agreed that the said plaintiff should have such an interest in the property himself as he would be able to pay for;, that it was finally understood and agreed that the plaintiff should undertake to find persons who would join the plaintiff in the purchase of said property, and that, if the plaintiff succeeded in getting enough persons who would join him in the purchase of said property for the sum named, the defendant would, upon the completion of such sale, pay to the-plaintiff for his services in effecting the same the sum of $2,500; that to effect such sale the said defendant executed and delivered to the plaintiff a contract in writing, dated October 29, 1891, whereby the plaintiff agreed to pay or cause to be paid to the said Wolf & Davidson Dry Dock Company, its successors or assigns, the sum of $237,500 for said property, at the times and in the manner therein mentioned; that in pursuance of said negotiations and agreement ‘the plaintiff undertook to find and did find persons, who joined him in the purchase of said property, and upon the terms and conditions mentioned in said contract; that the plaintiff and other persons whom he did procure did purchase said property upon the terms set forth in said contract, and paid to the dry dock company the sum of $237,500-by direction of the defendant within the time mentioned in said contract, and the said premises were thereupon conveyed and transferred to the plaintiff accordingly; that upon the full completion of said sale the plaintiff demanded of the-defendant the payment of said sum of $2,500, but the defendant refused to pay the same, and denied his liability therefor. The complaint also alleges another cause of action for $200 commission, on the sale of tbe schooner Helena for the sum of $10,000. The answer of the defendant was a general denial.</p> <p>At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at $2,935. From the judgment entered thereon the defendant appeals.</p>

Fish, Circuit Judge. Malicious prosecution. The complaint alleges that the defendant, Albert Ellvnger, “ wilfully and maliciously contriving and intending to wrong said plaintiff, and to injure him in his good name, fame, and reputation, and to put him to trouble, expense, and loss, maliciously and without any probable cause whatsoever,” caused and procured a complaint to be made before the Honorable Francis Bloodgood, United States court commissioner at Milwaukee, “ in due…

<p> ■Corporations: Full-paid stock: Consideration: Conveyance of property: Calls and assessments: Action to compel delivery of certificate: Limitations: Parties: Costs: Appeal. </p> <p>1. The purchasers at a foreclosure sale of all the property and franchises of a corporation formed a new corporation, as authorized by a special statute (ch. 289, Laws of 1861), by filing a certificate of incorporation, in which directors were named and -the amount of the capital stock was stated to be $1,000,000, divided into 10,000 shares of $100 each. This certificate contained no provision as to stock subscription or for issuing any stock, nor did it define in any manner the powers of the directors; but the statute provided that special stock, in addition to the capital stock mentioned in said certificate, might be issued in payment of such obligations of the former corporation as the new corporation, by vote of its stockholders, might assume to pay. The property purchased at the foreclosure sale and conveyed to the new corporation had cost more than $1,000,000, though it was bid off for a sum considerably less. After incorporating, the purchasers executed an instrument stating their respective contributions to the purchase and the proportionate interest of each in all the property and franchises of the new corporation. There being nothing in the statute under which the new corporation was organized, or in the certificate of incorporation, to indicate a contrary conclusion, it is held that, in consideration of the conveyance to the corporation of the property purchased by the incorporators, its common stock was fully paid to the entire amount specified in such certificate, and that each of the incorporators was entitled to a proportionate share 'thereof corresponding to his contribution to the purchase.</p> <p>% The conveyance of the property purchased to the new corporation so organized was a sufficient consideration, as between the stockholders and the corporation, for the issue of the stock as full-paid.</p> <p>■3. In the absence of any special authority conferred upon them, or of consent thereto, the directors had no power to make calls or assessments upon such stock.</p> <p>4. There having been no adverse claim or holding of the shares to which one of the incorporators was entitled until the corporation denied his right to them (in this case more than twenty years after the incorporation), until then he had no right of' action to compel delivery of the proper certificate, and the statute of limitations did not begin to run; and, his action having been commenced within one year thereafter, he did not lose his legal right by estoppel for laches. Rogers v. Van Nortwich, 87 Wis. 414, distinguished.</p> <p>•5. The directors of the corporation were proper, though not necessary, parties to the action to compel delivery of the certificate of stock. ■6. Directors joined as defendants with the corporation in such case cannot complain on appeal that they were, jointly with the corporation, charged with costs, where, before the appeal was taken, the judgment for costs against them had been released.</p> <p>.7. The corporation cannot complain in such case that the amount which plaintiff was adjudged to pay as calls on the stock, as a condition of obtaining the certificate, should, on a proper computation, have been larger, where the calls were absolutely void.</p>

<p>.Appeal from an order of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>The Reliance Wire & Iron Works made an assignment for the benefit of its creditors to J. H. Gilmcm, the respondent. Previous to the assignment, it had borrowed money of the Commercial Bank. The appellant, F. A. Hall, indorsed its notes, and deposited his personal securities as collateral to his indorsement. The bank recovered judgment against Hall, which is unpaid. Hall filed a claim against the assignor, in the assignment matter, in the nature of a contingent claim, based on his liability as an indorser. Motion to strike out and expunge from the record such claim was granted.- The order was made on. the 9th day of June, 1894.. A copy of the order, with written notice of its entry, was served on the appellant on June 11, 1894. The notice of appeal from the order was served July 25,1894. There was a stipulation between the attorneys of the respective parties-to extend the time for serving the notice of appeal</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: R. N. Austin, Judge.</p> <p>It is alleged in the complaint, in effect, that on and prior to June 28, 1893, the plaintiff was a switchman at Milwaukee, in the employ of the defendant Chicago, Milwaukee & St. Paul Railway Company; that it was his duty, as such, frequently to stand on the top of box freight cars in motion,, in order to set and loosen the brakes thereon, which projected above the tops of said cars; that the defendant Bentley, who is a contractor, was building a certain large building near the place of the accident, and one of his employees,.' Herman Kronebnegel, his foreman, suspended a rope across-one of the tracks of said railroad which was in constant and common use by the company, called a “ guy Tope,” one end of which was made fast to the top of a derrick on one side of the track, and the other end made fast to some movable object on the other side of the track, and that the rope was at such, height above the track as to strike a person standing on such freight car; that the plaintiff, while standing on such car, moving toward the rope and not observing the same, was caught by the rope and thrown off the car and badly injured; and he brings this action to recover damages by reason of such injury. The defendants separately answered, the defendant Bentley, in effect, by a general denial.</p> <p>At the close of the trial the court granted a nonsuit as to the railway company, and the jury returned a special verdict, as against the defendant Bentley, to the effect, (1) that Herman, so called, and those who assisted him, were guilty of negligence Avhich caused the injury to the plaintiff, in placing the rope across the railway track; (2) that there was no want of ordinary care on the part of the plaintiff which contributed to the injury in question; (3) that the jury assess the plaintiff’s damages at $5,000; (4) and by the direction of the court the jury find that, at the time that said Herman put up the rope across the track of the railway company, he was acting in the scope of his employment for the defendant Bentley. From the judgment entered thereon in favor of the plaintiff the defendant Bentley appeals.</p> <p>As to the responsibility of the appellant for the act of his foreman, and to the point that, there being no conflict in the evidence, the question was one for the court, they cited Philadelphia & R. R. Go. v. Derby, 14 How. 468; Bpauldñng v. G. da N. W. R. Go. 33 Wis. 582; Roseeranes v. I. de M. Tel. Go. 65 Iowa, 444; Gosgrove v. Ogden, 49 N. Y. 255; Phelon v. Stiles, 43 Conn. 426; Mound G. P. ds G. Go. v. Gonlon, 92 Mo. 221; Pittsburgh, G. da St. L. R. Go. v. Eirlc, 102 Ind. 399; 14 Am. &"Eng. Ency. of Law, 810, and cases in note 4; Id. 811, and cases in note 3; Heenrich v. Pullman P. G. Go. 20 Fed. Rep. 100-107; JRamsden v. B. & A. JR. Gorjo. 104 Mass. 117; Fide v. 0. c& FT. W. JR. Go. 68 Wis. 469.</p>

<p> Landlord and tenant: Surrender of lease by operation of law. </p> <p>There can he no surrender by operation of law of a lease for a term exceeding one year while the tenant retains possession, as tenant, of the leased premises or any material portion thereof.</p>

0. Ludwig, Judge. This is an action against the First National Bamk of Milwaukee as garnishee of one Michael Dockery. When the cause came on for trial in the trial court, the plaintiff moved, for judgment upon the garnishee’s answer and the record in the case. The court rendered judgment, according to the motion, in favor of the plaintiff and against the garnishee.

<p>Appeals from orders of the superior court of Milwaukee county: R. NT. Austin, Judge.</p>

<p>Aiteals from orders of the superior court of Milwaukee county: R. N. Austin", Judge.</p> <p>From January 27, 1893, to September 5, 1894, the plaintiffs, Gershom and David Weber, and the defendant, A. M. Weber, were copartners, and extensively engaged in carrying on a general merchandise business at Milwaukee and Oshkosh, under the firm names of Weber Bros, and Weber Dry Goods Company. On September 5,1894, the said firm confessed five several judgments, in the aggregate amount ■of $93,595.93. Said several judgments were so confessed, entered, and docketed at very nearly the same time, and all within a period of ten minutes, as follows: $8,245.90, in favor of Inbusch, upon a note dated May 23, 1894;. $31,556.37, in favor of H. B..Claflin Company, upon a note dated June 21, 1894; $15,189.55, in favor of Hammel, upon a note dated July 31,1894; $20,207.06, in favor of Karger, on a note dated July 31, 1894; $18,397.05, in favor of Wright, on a note dated September 4, 1894. Immediately upon the docketing of said several judgments, executions were issued thereon, and each was levied upon the goods of said firm very nearly at the same time, and within a period of five minutes. Said several judgments were all so entered and docketed, and said executions were all so issued and levied, between twelve o’clock noon and ten minutes thereafter.</p> <p>Thereupon the plaintiffs, Gershom and David Weber, commenced this action against the defendant, A. M. Weber, for a dissolution of said firm and the appointment of a receiver with the usual powers and duties, by reason of said levies and the inability of said firm to pay their debts. The summons and complaint therefor were immediately served, and the defendant immediately answered, and admitted all the allegations of the complaint, and consented therein to the judgment prayed in the complaint, and therein waived notice of application for the appointment of a receiver. Thereupon the superior court ordered and adjudged, in effect, that said copartnership be dissolved, and the assets and property thereof sequestered, and a receiver be appointed, with the usual powers and duties and upon the usual conditions; and said order appointing said receiver contained, among* other things, the following clause, to wit: “It is further ordered and adjudged that all persons having claims or demands against the said copartnership be, and they hereby are, restrained from commencing any action against the said copartnership.” Thereupon the receiver immediately filed his bond, and qualified as such receiver before 1 o’clock of September 5, 1894. Soon after, certain parties commenced actions of replevin for certain of the goods so levied upon.</p> <p>On September 24, 1894, the firm of Stearns c& Spmgarny of New York, upon their verified petition, alleging in effect that they were creditors at large of Weber Bros, for a large amount, and that each and all of said several judgments (except that of TI. B. Olaflin Company) were without consideration and obtained by collusion and conspiracy and to give a fraudulent and unlawful preference, obtained an order to show cause why they should not be permitted to intervene in said proceedings and in said several actions in which judgments had been so confessed, and become parties thereto. Upon the hearing of that application, and September 25, 1894, it was by the said court ordered: Eirst. That the petitioners above named have leave to intervene in the above-entitled action, and also in each of the actions specified in said petition wherein judgments have been entered as therein alleged, and to file in each of the last-described actions a petition containing the allegations upon which said petitioners assail said judgments; that such petition may be therein filed within twenty days from date, and that twenty days after such filing shall be allowed to each judgment creditor to answer thereto; said petition to be served on Messrs. Turner, Tloodgood & Kemper, attorneys for said judgment creditors, and the answers to be served on B. M. Goldberg, attorney for said petitioners, and the issues thereby formed to stand for trial. Second. “ It is hereby further ordered that the sheriff of Milwaukee county require each and every bid accepted by him on the sale of the stock of "Weber Brothers to be paid in cash, and that he shall pay the amount for which such stock shall be sold to the clerk of the above-named court to abide the result of the trial of the issues above described.”</p> <p>Upon due application made, that order was modified by an order made September 29, 1894, which, among other things, contained a recital and order as follows: “Whereas, the court is of the opinion that $7,000 deposited in court will protect the said Stearns da Spingarn upon the said claim, and the judgment creditors having applied to have said order of September 25th modified, it is ordered that said order of September 25th be modified so as to require the said sheriff to pay into court, out of the proceeds of said sale, the sum of $7,000, the excess over said sum of $7,000 to be applied by the said sheriff pursuant to the requirements of the writs in his hands; any surplus realized upon said sale over the amount due upon said executions to be turned over by said sheriff to the receiver heretofore appointed herein.”</p> <p>On September 29, 1894, the sheriff, by virtue of said several execution levies, sold the goods” so levied upon for '■$67,550. Out of the same he retained $3,000 for his fees and expenses thereon. Stearns <& Spingcurn thereupon moved the court that the balance of said sum, to wit, $64,550, should be paid into court in conformity to the order of September 25, 1894. Upon the hearing of that application, it was by the court, October 11, 1894, ordered, in effect, that said motion 'be, and the same was thereby, granted; that said sheriff be, •and he thereby was, commanded and directed to forthwith pay into court the sum of $7,000 in his hands; that said sheriff and Turner, Bloodgood <& Kemper and Inbusch be, and thereby were, commanded and directed forthwith- to pay and deposit with the clerk of said court the sum of $8,280.25, so as aforesaid applied upon the execution in favor of said Inbusch; that said sheriff, said H. B. Olaflin Company, and Turner, Bloodgood do Kemper, its attorneys, were thereby commanded and directed forthwith to pay and deposit with the clerk the sum of $31,687.92, so as aforesaid •applied on .the execution in its favor; that said sheriff, said Hammel, and Turner, Bloodgood c& Kemper, his attorneys, be, and they thereby were, commanded and directed to forthwith pay and deposit with the clerk of said court $15,223.05, the amount applied upon the execution in favor of said Hammel as aforesaid; that said sheriff, said Barger, an'd Turner, Bloodgood <& Kemper, his. attorneys, be, and they were thereby, commanded and directed forthwith to pay and deposit with the blerk of said court $2,358.78, the amount so as aforesaid applied on the execution in favor of said Karger; that all of said sums, when so paid and de- ■ posited with said clerk, should there remain until the further ■order and direction of the court upon notice to each and all ■•of the parties interested in each and all of said actions; that •.said alleged modified order of September 29,1894, was and as wholly inoperative and of no effect whatsoever; and that •said former order of September 25, 1894, be, and the same was thereby, declared and adjudged to have been since the making thereof, and still to be, of full force and virtue, and" said sheriff, and the said Weber Bros., and the said receiver, and each and all of the said plaintiffs in the other five-actions mentioned, and their respective attorneys, be, and they thereby were, commanded and required to comply with said order of September 25,1894, to all intents and purposes the same as if the order of September 29, 1894, had never-been made. That order and the order of September 25,. 1894, were each entitled in this action, and also in each of the actions in which judgment was so confessed. The order of September 29,1894, was entitled only in this action.</p> <p>On October 24, 1894, the said sheriff, by his attorneys, served due notice, entitled in this action and also in each of' the actions in which judgments were so confessed, whereby he appealed to this court from so much of the order of September 25, 1894, as constituted the second part thereof as. mentioned above; and also from so much of the order of' October 11, 1894, as in any way affected the rights and' duties of said sheriff as such officer or individually; and' from so much of said order as required him to J3ay into court the sum of $7,000 in his hands; and from so much of said order as determined that the modified order of September-29, 1894, was and is wholly inoperative and of no effect, whatever, and that the order of September 25,1894, be, and the same was thereby, declared and adjudged to have been since the making thereof, and still to be, of full force and virtue, and that said sheriff be, and he thereby was, commanded and required to comply with said order of September 25, 1894, to all intents and purposes the same as if the ■ order of September 29, 1894, had never been made. On October 24, 1894, the said Turner, Bloodgood <& Kemper, in person, served due notice, entitled in this action and also in each of the actions in which judgments were so confessed, whereby they appealed to this court from so much of the - order of October 11, 1894, as in any way affected them, and particularly from that part of said order requiring them to pay and deposit with the clerk of said court the sums, respectively, of $8,280.25, $31,687.92, $15,223.05, and $2,358.78.</p> <p>To the point that, this being an action to wind up a partnership and distribute its assets to creditors- and between the partners, the receiver appointed therein, cannot attack the validity of the judgments of the execution, creditors, they cited Walsh v. St. P. S. F. Co. 62 N. W. Rep. 383, and cases cited; Berlin M. Works v. Security T. Co. 61 id. 1131; Pease v. Zcmclauer, 63 "Wis. 20; King v. Cutts, 24-id. 627; High, Receivers, § 495; Meehanies’ Mat. Bank v. laiidamer, 68 Wis. 44; Devli/n v. Mew Fork, 4 Mise. Rep. 106; Felter v. Maddoek, 11 id. 297; 5 "Wait, Act. & Hef. 379,. 389; Koffman v. Sehoyer, 28 N. E. Rep. 823.</p>

H. Johnson, Circuit Judge. This is an action to recover trust funds from the defendant as assignee for the benefit of creditors of Frederick T. Day.

H. Johnson, Circuit Judge. In an action to dissolve and wind up tide affairs of the' firm of Hallett & Hawley, brought by Hawley against Hal-lett, tbe appellant was appointed receiver of the partnership assets and effects of said firm, and the respondent, Henika, intervened in the action, claiming that he had consigned to-the firm certain merchandise for sale, to the amount of $315.51, which they had sold, and failed and refused to account to him for the proceeds; and he…

<p> Estates of decedents: Setting aside judgment of distribution procured by fraud: Poiver of county court: Laches. </p> <p>1. The county court has power, upon petition, to set aside a judgment of distribution which has been procured by fraud, if it does not thereby disturb rights which have become confirmed by limitation; and the fact that there may be a remedy by appeal, or by a direct action against the person guilty of the fraud, does not preclude the.exercise of such power.</p> <p>Ü. A petition to set aside a judgment of distribution, made by sisters and heirs at law of the testator, elderly women residing in another state, alleging, among other things, that conveyances of all their interest in the estate, in accordance with which the judgment was made, liad been obtained from them by false- and fraudulent representations as to the size of the estate, the terms of the will, and their interest in the residue, made by the grantee, who had been reared as a member of the testator’s family and whom they trusted,— is held sufficient, although the petitioners might by proper inquiries have learned the truth. The grantee in the conveyances will not be heard to complain that they believed her representations and omitted to verify them.</p> <p>3. Such petition having been presented shortly after the petitioners learned the facts, about three years after the death of the testator, and less than one year after the entry of the judgment, was not too late.</p> <p>4. In setting aside the judgment of distribution in such case it is not necessary to open or set aside the settlement of the estate.</p>

<p>Cities: Removal of official by council: Certiorari: Appeal: Parties,</p> <p>The common council of a city is not a party to the proceedings in which it removes a city official upon charges of misconduct preferred by private citizens, nor to an action of certiorari to review such proceedings; and it cannot, therefore, appeal from an order made in such action.</p>

Applications for a stay of proceedings and for a writ of prohibition against proceedings in the circuit court for Calumet county: Geo. W. Burnell, Circuit Judge.

<p>Appeal from orders of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>This is an appeal by a policy holder in the Millers’ Mutual Insurance Company of Wisconsin from three orders made by the superior court of Milwaukee county. The Millers’ Mutual Insurance Company was organized in 1882 under the provisions of ch. 255, Laws of 1818, which chapter is embodied in secs. 1941o-1941<7, S. & R. Ann. ¡Stats. It continued its business until July, 1892. On the 30th day of January, 1891, the appellants, J. 0. Kendall efe Go., insured three mills at Hartford, by a policy issued by said company, for the sum of $5,000, for the term of five years. On the issuance of the policy the appellants paid a cash premium of $43.75, and gave a premium or deposit note by Avhich'they promised to pay to the company $437.50, by instalments, at such times as the directors might order and assess for the losses and expenses of said company pursuant to its charter and by-laws, which provided that in no event should there be any liability beyond the face amount of the note.</p> <p>The articles of incorporation of the company provided that all persons insured should give their obligations binding themselves, their heirs and assigns, to pay their pro rata to the company of all the necessary expenses and losses by fire which might, be sustained by any member thereof during the time for which their respective policies were written. Article 8 of the by-laws of the company also provided that policy holders should give their obligations to pay their pro rata of the losses and expenses of the company, as provided in the articles of incorporation, and should also pay a cash premium equal in amount to ten per cent, of said obligation, which cash premium should constitute a reserve fund, and should also pay semi-annual premiums, not exceeding for any six months ten per cent, of the deposit note, during the continuance of the said policy in force. Article 9 of said by-laws further provided for an assessment against the deposit notes on the first day of each month to meet the losses and expenses of the previous month, provided, however, that no assessment should exceed in the aggregate the amount unpaid on any note.</p> <p>The appellants paid their cash premiums on the receipt of the policy, and also paid their semi-annual premiums due July 1, 1891, and January 1, 1892, and they also received a notice from the company, July 1, 1892, that another semiannual premium would be due July 10,1892. At a meeting of the directors of the company held July 7,1892, before the appellants had paid the last-named semi-annual premium, it was decided to wind up the affairs of the company, cancel all its policies, and go out of business, and to levy an assessment upon all the premium notes to pay up losses and expenses. Notice of this action was sent by the secretary of the company to all policy holders, including the appellants, which notice stated the amount of the assessment against each policy holder, and requested an immediate payment thereof. This notice also contained a statement of the liabilities and assets of the company, from which it appeared that their liabilities, including contested claims, amounted to $25,204.74; that they held premium notes, subject to assessment, of the face value of $138,972.88; and their "assets (including about $2,700 cash) were estimated to amount, in all, to $4,260.09. The notices further stated that, on receipt of the appellants’ policy and a draft for the assessment, the company would return the appellants’ deposit note, and that the possibility of further assessment would thereby be removed. This assessment was levied against all policy holders who held policies July 7,1892, being 299 in number. Of these, 243 paid the assessment, which amounted to $18,947.18, and fifty-six did not pay the assessment, which amounted to $5,213.08. The whole assessment amounted to $24,160.26. The appellants paid their assessment, which amounted to $118.91, and their deposit note was returned to them.</p> <p>■ Afterwards, in March, 1893, the plaintiff, Seamans, a creditor of the company, brought an action in the superior court, as aforesaid, against the company, to wind up its affairs and for the appointment of a receiver on the ground, among others, that the company was insolvent. In this action the company made answer, and upon due proceedings the respondent, Buell, was appointed and qualified as receiver, and proceeded to wind up the business of the company. On the 10th day of May, 1894, the receiver petitioned the court for authority to make an assessment against the policy holders of the company, representing that the unpaid claims which had been allowed amounted' to more than $6,000,' that the expenses of the receivership would exceed $3,000, and that the assets of the company, apart from the deposit notes, did not exceed $2,100. Upon this petition an order to show cause was granted, and served upon all the policy holders, including the appellants. Upon the hearing of the petition the appellants appeared and objected to any assessment against them, on the ground that they had been released from any further liability by payment of the assessment of July, 1892, and the surrender of the deposit note. The court subsequently made an order directing the receiver to make an equitable and just assessment against all of the policy holders of the company who were such on the 7th day of July, 1892, sufficient to pay the losses and expenses of the receivership. This order was made July 21,1894, and is the first order appealed from by the appellants.</p> <p>On the same day the receiver made an assessment against the policy holders, including the appellants, the amount of such assessment being $35. The receiver upon the same day reported said assessment to the court, and produced proof in support of its correctness, and thereupon the court made another order, finding, among other things, that the unpaid claims against the company which had been allowed by the court amounted to the sum of $6,251.37, and that the costs and expenses of tlie receivership would exceed the sum of $3,000, and that the assessment made by the receiver was a just and equitable assessment and was thereby confirmed. Said order also directed the receiver to proceed to collect such assessment. This is the second order appealed from.</p> <p>Thereafter the appellants moved to vacate the last above-mentioned order. Said motion was heard upon affidavits, and denied. This is the third order appealed from.</p>

<p> Negligence: Defective elevator: Personal injuries: Privity or contract relation: Implied invitation: Act imminently dangerous to life. </p> <p>1. The defendant elevator company had placed a freight elevator in the building in which plaintiff was employed, under an agreement that it should not be accepted and paid for until in complete running order, that defects appearing in the work, material, or construction should be made good, and that in the meantime it should be operated by plaintiff’s employer, under the supervision and control of the elevator company. While the elevator was so on trial it fell, by reason of a defect in its construction, and injured plaintiff, who had nothing to do with its operation but was working near the foot of the shaft. Held, that there was no privity or contract relation between plaintiff and the elevator company by reason of which it owed him any special duty, and that there was no implied invitation by said company to plaintiff to approach or be near the elevator shaft. The company was therefore not liable for plaintiff’s injuries. Bright v. Barnett & Record Co. 88 Wis. 299, distinguished.</p> <p>2. There being no claim that the elevator company acted recklessly or in bad faith, or that it had any actual notice of the defect, it was not liable on the ground that placing the elevator in the building was an act the natural and probable consequences of which would be imminently dangerous to the lives or persons of others.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>The plaintiff is a wholesale dealer in rags. He was accustomed to store rags in the defendant’s freight warehouse as they were gathered in, and, whenever he made a sale, to ship them out in car-load lots. On the 28th day of October, 1892, he had a car load of rags in defendant’s warehouse, for which he had an order. He went to the foreman of defendant’s freight house, notified him that he had a car load ready to be shipped to Kimberly, Clark & Co., at Appleton, Wis., and asked him if he could get a car and load them. The foreman said that it was impossible to get a car that day, but that he would load them the next morning. Plaintiff said, “ All right; I will be there to load them.” Plaintiff took no receipt for the goods at that time, because, as he testifies, mistakes had been made at that warehouse in the shipment of his goods, so he was in the habit of being present at the shipment to see that no mistake was made, and took his receipt then. That same night the warehouse and its contents, including the plaintiff’s rags,.were destroyed by fire, which was not caused by any fault of the defendant.</p> <p>A verdict for the defendant ivas directed. From judgment on that verdict the plaintiff appeals.</p> <p>argued, among other things, that the place at which delivery of the rags was made was the usual and ordinary one for such delivery. The agent of defendant was notified of the delivery and accepted the same. They were for immediate transportation, and the only cause of their loss was the refusal or inability of defendant to furnish cars as a common carrier. The deposit in the warehouse of defendant was a mere accessory to the carriage, and its liability as common carrier was not postponed to the time the goods were actually put in motion. Hutchinson, Carriers, § 89; Moffatt v. G. W. R. Oo. 15 Law T. Rep. (1ST. S.), 630; Blossom v. Griffin, 13 FT. T. 569. When goods are delivered to a carrier for shipment at its earliest convenience, nothing further remaining to be done with reference thereto by the owner, the company is liable as a common earner if the goods are burned before shipment. Grand Tower M. <& T. Oo. v. Oilman, 89 Ill. 244; Merriam v. II. & N. H. R. Oo. 20 Conn. 354; Pittsburgh, O. c& St. L. P. Go. v. Barrett, 36 Ohio St. 448; Little Bock & F. S. R. Go. v. Hunter, 42 Ark. 200. Where goods are delivered to a carrier for transportation and they are for its own convenience temporarily stored in a warehouse, it is liable as carrier. Fitchburg c& W. R. Oo. v. Ha/nna, 6 Cray, 539; Rogers v. Wheeler, 52 H. T. 262. The liability of carrier commences with delivery of the goods to it or its agent at the place where it is accustomed to receive goods. Southern Exp. Oo. v. Newby, 91 Am. Dec. 783; Barron v. Hick edge, 1 Am. Rep. 126. This acceptance is complete when the property comes into its possession with its assent. III. Gent. R. Oo. v. Smyser, 87 Am. Dec. 301; Gass v. N. 7., P. c§ B. R. Oo. 96 id. 742. When there is any question or conflict of evidence as to whether there has been a delivery to the carrier, even if based upon usage of trade, the question should be left to the jury. Green v. M. & St. P. R. Go. 38 Iowa, 100. When nothing further is required to be done by the shipper, the liability of the railroad is that of a carrier and not that of a warehouseman. London dé L. F. Ins. Oo. v. R., W. c& O. R. Oo. 68 Hun, 598..</p> <p>They cited Hutchinson, Carriers, §§ 63, 88; O'Neill v. N. T. O. & II. R. R. Oo. 60 FT. T. 138; Basnighi v. A. ds N. O. R: Oo. Ill FT. C. 592.</p>

<p> Negligence: Unguarded window opening into elevator shaft: Pleading: Conclusions of law. </p> <p>1. A complaint alleging- that plaintiff’s intestate, a plasterer, visited one of the upper floors in defendant’s building upon his invitation for the purpose of making a bid on plastering certain unfinished rooms, and was struck and killed by an elevator, operated by defendant’s tenants, while looking through an unguarded open window, four feet above the floor, opening from the hallway through which he was passing into the elevator shaft, which had the appearance of an unoccupied room, is held not to state a cause of action. The invitation to pass through the hallway to inspect the rooms to be plastered did not include any invitation or license to the deceased to thrust his head through the window into the'elevator shaft.</p> <p>2. Allegations in the complaint that it was defendant’s duty to erect and maintain guards, etc., over such window, and that he neglected such duty by allowing the window to remain open and unguarded, are held to be the pleader’s conclusions of law from the facts stated, and not to be admitted'by a general demurrer.</p>

<p>Appeal from a judgment of the circuit court for ‘Wauke-sha county: A. Scott Sloaít, Circuit Judge.</p> <p>On February 3, 1860, one Alexander Stewart, being the owner and in possession of the forty acres of land in question, made an ordinary warranty deed of the same, running to two of his nephews, both sons of his deceased brother Archibald, to wit, the defendant, Archibald Stewart, and his brother, James A. Stewart. Said James A. and said Archibald -went into possession of said premises under said deed at the time of its execution. Said real estate was very stony and rough, and at that time there was a mortgage thereon to one Mullens, for $500, drawing interest at the rate of ten per cent, per annum, given in 1856 and recorded February 8, .1860. On September 23, 1862, the said grantees named in said deed, Archibald and James A. Stewart, believing that they were the owners of said real estate, paid in good faith $500 on the said mortgage, and by.reason of such payment obtained a satisfaction piece therefor, and also paid the taxes upon said real estate which were assessed thereon from 1860 up to and including 1873.</p> <p>On March 7, 1873, the said Alexander Stewart died intestate, leaving, him surviving, as his sole heirs at law, the said Archibald and James A., as children of his deceased brother Archibald, and the plaintiff, John Stewart, and his brothers and sisters, as the children of his deceased brother John. On March 8, 1873, the said Archibald and James A. caused said deed of February 3,1860, to be recorded. Thereupon said John and his brothers and sisters, as such heirs at law, filed a bill in equity against the said Archibald and James A., to set aside said deed and the record thereof. As the result of that suit it was adjudged, June 12, 1879, that said deed was never delivered, and hence the same and the record thereof were set aside and canceled. Stewart v. Stew-curt, 41 Wis. 624; S. 0. 50 Wis. 445.</p> <p>Prior to the commencement of this action said Archibald purchased of his said brother, James A., all the right, title, and interest that said James A. had in and to said premises, and said John purchased of his brothers and sisters all the right, title, and interest they had in and to said premises. On May 27, 1891, the said John, as such heir at law and such purchaser, commenced this .action of -ejectment against the said Archibald to recover an undivided one-half of said premises. The complaint is in the statutory form. The defendant answered by way of denials, adverse possession, claim of title in good faith under said deed, and for improvements and betterments made upon the premises in good faith, by way of equitable counterclaim. The plaintiff replied to said counterclaim. As the result of that litigation, it was held that the former judgment was conclusive upon the parties; that said deed of February 3, 1860, was never delivered ; and that the plaintiff and defendant held the premises as tenants in common. Stewart v. Stewart, 83 Wis. 364.</p> <p>Thereupon, Archibald Stewards claims for improvements and betterments were tried, and at the close of the trial, February 8,1894, the circuit court found, as matters of fact, among other things, that said Archibald Stewart has remained in the possession of said premises from the time his uncle Alexander died, up to the present time, under a firm faith and belief that he was the owner of said premises, and in good faith improved said premises, and paid all the taxes assessed thereon, and also built and repaired fences, dug up stones, and cleared said lands from stones and stumps, also destroyed large patches of noxious weeds, Canada thistles, etc., hauled and spread large quantities of manure upon said premises, so that the same became quite valuable, and that the clearing of stones and stumps off from said lands, and also the improvements, were done prior to 1819; that the improvements by way of fences and clearing up of stones, etc., are reasonably worth the sum of $200, without taking into consideration the destruction of noxious weeds or the hauling and spreading of manure as aforesaid; that the destruction of weeds and hauling and spreading of manure does not come within the statute; that Archibald's claim for interest upon taxes paid by him is only allowed at seven per cent, per annum; that at the time of the death of said uncle the said Archibald and his brother James had expended on said real estate, by way of paying off the mortgage and taxes, and interest upon the same, the sum of $1,031.20, and that the «taxes and interest upon the premises since 1873, up to the .present time, have been paid by said Archibald; that a fair rental value of said premises during said period, taking into consideration the improvements made by the said Archibald •sinee 1873, is $66 a year, making $1,386 since 1873 to Jan-vuary 1,1894, and that said Archibald has cut wood on said premises, and used or sold the same, to the amount of thirtjr cords, and the same was reasonably worth $2.50 per cord; that said Archibald has kept possession of said real estate in good faith, believing that he was the owner thereof, and .made the improvements mentioned, for which he should be paid one half, and as an offset against the same should be -allowed one half of the rental value of said real estate, and one half of the wood disposed of, and all damages and costs :in the ejectment action. And the court states the account •betweén these two parties so as to strike a balance in favor • of the said Archibald, and against the said John, of $631.32, for which said sum the said Archibald should have judgment and a lien upon the interest the said John has in said real estate.</p> <p>And, as conclusions of law, the court finds that the judgment in the action of ejectment should be a conditional one, declaring that the said John pay to the said Archibald the sum of $631.32 within the time required by statute and as a condition precedent to execution in the action for ejectment, and that said sum of $631.32 so assessed and established for improvements be a lien upon the said real estate, and that .■ said amount should be paid, with interest thereon at six per cent, per annum from August 30,1893. Erom the judgment ■«entered thereon accordingly, with costs, the said John appeals.</p>

<p> Personal injuries: Pile of snow in street: Evidence: Inaccurate plat: Special verdict: Assuming controverted fact: Improper remarle of counsel: Immaterial errors. </p> <p>1. In an action for personal injuries alleged to have been caused by a pile of snow placed in the street by defendant’s employees, evi-deuce as to their piling snow in the street should be limited to the place of the accident or its immediate vicinity.</p> <p>2. A witness having testified to having seen snow piled in several different places in the vicinity, among others at the exact place in question, a motion to strike out his entire answer was properly overruled.</p> <p>3. The submission in a special verdict of questions which in form presupposed the existence of the pile of snow was not a material ■error, where a preceding question was as to whether a pile of snow was the proximate cause of the accident, and the jury were told that if they answered that question in the negative they need not answer the remaining questions.</p> <p>4 The admission in evidence of an inaccurate plat is not a material error where the jury viewed the premises and it does not appear that the inaccuracy could have had any prejudicial effect.</p> <p>-5. An improper remark of plaintiff’s counsel in his argument to the jury in respect to the amount of damages will not work a reversal, where the attention of the trial court was not called to it in any way and the damages recovered were very moderate.</p>

<p>Criminal law and practice: Incest: Rape: Preliminary examinationr Pleading: Joinder of counts: Election: Evidence: Leading ques~ tions: Accomplice: Subsequent offenses: Instructions to jury.</p> <p>1. The preliminary examination of a person charged with incest disclosed facts indicating that he had committed rape against the person of his daughter, and an information was filed accordingly, charging in one count the rape and adding thereto a count for incest founded on the same transaction. Held, that a plea in abatement of the first count on the ground that defendant had not had a preliminary examination for the offense charged therein, was' properly overruled. Sec. 4653, S. & B. Ann. Stats.</p> <p>2. A count for incest may be joined with one for rape founded on the same transaction. A remarle to the contrary in State v. Shearr 51 Wis. 460, held obiter.</p> <p>3. Where the joinder in such a case was intended merely to meet the-different legal aspects which the evidence might give the case,, the trial court rightly, in its discretion, refused to require an election between the counts.</p> <p>4 The allowance of leading questions to the prosecutrix in this casé-is held not to have prejudiced the defendant so that it should work a reversal.</p> <p>5. Although the testimony of an accomplice is the only evidence against the accused, the trial court is not required to direct an acquittal, nor, in the absence of a request therefor, to give any instructions as to the effect of such testimony. •</p> <p>6. The fact that one accused of incest used a certain amount of force to overcome the resistance actually made will not enable him to escape punishment for incest, the parties being within the prescribed degree of consanguinity, if the force and resistance used were not sufficient to constitute rape.</p> <p>?. If, in the commission of the incestuous act, the female was the victim of force, fraud, or undue influence, so that she did not act voluntarily and join in the commission of the act with the same intent that the accused did, she ought not to he regarded as an accomplice. In all such cases, where it is to be proved inferentially, the question of accompliceship is one of fact for the jury.</p> <p>'8. On a prosecution for incest, evidence was admitted tending to show improper relations between defendant and one of his witnesses subsequent to the offense charged. After stating that such evidence was admitted to show the relations of the witness to defendant, so as to throw light upon the credibility of her testimony, the court charged the jury to the effect that they should only consider it as it had a bearing on the question whether defendant was guilty of the offense charged. Held error, such evidence not being competent on that question.</p>

Bennett, Circuit Judge. The complaint alleges, in effect, that at the times mentioned the plaintiff was in the employment of the defendant, working in its shops for the defendant at a lathe used for turning castings, which lathe was in a dangerous and unsafe condition, in that the clutch attached to the shaft from which the lathe was driven was out of repair, so that the same could not be disconnected by means of the lever used for that purpose, but would keep the belt…

<p>Appeal from a judgment of tbe circuit court for Dodge county: A. Scott SloaN, Circuit Judge.</p> <p>A common-law writ of certiorari was issued out of the circuit court to the appellant, as city clerk of Milwaukee and ex officio clerk of the board of review of that city, to bring before the court an assessment of the relator’s property for 1894, in order that it might be corrected or reversed and set aside. It appeared from the petition that the relator had its principal office in the Third ward of Milwaukee, and had in operation in the city about 120 miles of street railway, operated over the whole extent of the city, with the exception of a mile or two, by electricity generated by machinery situated upon, real estate owned by it, and extending into every ward and assessment district of tbe city; that it was also engaged in supplying electric lights to the city and its. citizens, and owned said street railway and electric light business under a number of franchises and contracts granted by the common council by various ordinances, and it claimed also to own the franchises and property of the Edison Electric Illuminating Company and of the Badger Illuminating* Company, corporations existing under the laws of the state, and that it was operating under their franchises; that an assessment had been made against it by the assessors of the city of Milwaukee for the year 1891, as follows:</p> <p>Keal estate assessed in the various wards where same is.... $553,790</p> <p>Personal property, consisting o£ horses, cars, motors, furniture, snow-plows, sweepers, and other vehicles, assessed in the Third ward at. 200,000.</p> <p>The franchises, together with all tracks, ties, stringers, feed wires, poles, trolley wires, cables, and switches, owned by it in the city of Milwaukee, together with poles, wires, meters, insulators, light conductors, and cables of the properties known as the Badger Illuminating Company, owned by the Milwaukee Street Railway Company, assessed in the Third ward at. 2,063,000'</p> <p>Merchants’ stock assessed in the Twelfth ward at. 5,000</p> <p>Personal property assessed in the Second ward at. 2,000</p> <p>Total.. $2,823,790</p> <p>The franchises of the Badger Illuminating Company. 25,000</p> <p>The franchises of the Edison Electric Illuminating Company 12,000</p> <p>Grand total. $2,860,790</p> <p>It was alleged that said assessment was an increase over the year 1898 of $1,714,050, caused “by assessing the so-called franchises of the petitioner at a high, exorbitant, and unreasonable value, arbitrarily, and upon no basis other than the mere guess of the assessors; ” that in spite of evidence offered by it before the board of review, and its objections, the board refused to change said assessment. It was charged that the franchises of the petitioner -were not taxable by the city of Milwaukee, or that, if taxable, no statute had been passed regulating the valuation of the same, and that there was no method of determining the value of such franchises that under existing conditions they were of little value; and that the said assessment was illegal and unjust.</p> <p>The writ commanded the return of the proceedings of the board of review by which it “ refused to alter or change the assessments made against the franchises and property of the Mihoaulcee Sireet Railway Company, as follows: $2,063,000,. $25,000, and $12,000.” The proceedings of the board of review by which the assessments named in the writ were confirmed were returned, with the testimony taken and statements of counsel and officers of the corporation. It appeared from the testimony that the company had 119 miles of single track within the city limits, extending into every assessment district of the city, twenty-one in number; that there werp upon certain of its real estate (a list of which was exhibited, but not embraced in the return) power houses used in running its railway, and that all its lines, substantially, were run by electricity, and that it had ten miles of street railway beyond the city limits; that the power for traction was derived from the power house in the Seventh ward, but it had a power house in the Sixth ward, formerly used for such purposes, and one in the Fourth ward, which had been used until recently.</p> <p>The circuit court for Dodge county, where the case was heard, gave judgment reversing and setting aside the assessment of $2,063,000 “for franchises, together with tracks, ties, stringers, feed wires, poles, trolley wires, cables, and switches'owned by it, together with the poles, wires, meters, insulators, light conductors, and cables of the properties known as the Edison Company and Badger Company, owned by the relator,” and also reversing and setting aside the assessment of $12,000 and $25,000 for the franchises of the two last-named companies, respectively. An appeal was taken from this judgment.</p> <p>inter alia, that the franchises of a corporation are property, and as such are liable to taxation. Sterling G. Go. v. Higby, 134 Ill. 557; Atlantic, T. & O. B. Go. v. Gomm'rs, 87 N. 0. 129; Baltimore v. B. dé 0. JR. Go. 6 Grill, 288; Gent. Pao. P. Go. v. State Board of Equalization,, 60 Oal. 35; State Board of Assessors v. Gent. B. Go. 48 N. J. Law, 146; Gomm. v. Lowell G. L. Go. 12 Allen, 75; Gomm. v. Hamilton JMJfg. Go. id. 298; Yeazie Banlcv. Fen/no, 8 Wall. 533, 547; Fond du Lae Water Go. v. Fond du Lae, 82 Wis. 329. The franchises were properly assessed in connection with the property that the franchises made valuable. “ All such property of the corporation must be regarded and entered upon the assessment roll, and treated throughout, for all purposes of taxation, as an entirety, and valued as such.” Fond duLaeWaier Go. v. Fond du Lae, 82 Wis. 322, 329, 330. The' tracks, poles, wires, etc., of the street railway company are real estate. People ex rel. JD. & F. B. Go. v. Gassity, 46 N. T. 46-49; People ex rel. H. Y. dé H. B. Go. v. GommJrs of Taxes, 101 id. 322; People ex rel. H. Y. FI. B. Go. r>. Com/mJrs of Taxes, 82 id. 459; Oslcaloosa Water Go. v. Boa/rd of Equalization, 84 Iowa, 407; S. G. 15 L. R. A. 296, note. The proper method to assess a street railroad is to assess the same as a whole, including as elements of value its franchises, right of way, iron, rails, ties, etc.; but an assessment of its- right of way and franchise, as a separate item from its other property, is not invalid. Street B. Go. v. Morrow, 87 Tenn. 406. If the legislature has not specifically provided a way in which franchises should be assessed, or fixed any standard of value, that fact does not prevent their, being assessed. In the absence of any special measure of value adopted by the legislature, all property must be valued in accordance with the general laws of the state. If a franchise is property, it must be either real or personal, and as such, shall be valued as the law has provided. Eeal property includes “ not only the land itself, but all buildings, fixtures, improvements, rights and privileges, appertaining thereto.” Sec. 1035, E. S. A franchise is ah incorporeal hereditament. Fond du Lao Water Go. v. Fond dm, Lao, 82 Wis. 328; Ohapman Valve Mfg. Go. v. Oconto W. Go. 89 id. 261. As such, it is consequently real estate. 2 Bl. Comm. 31. Independent of statute, franchises are susceptible of valuation on general principles. State v. O. P. M. Go. 10 Nev. 64; Wibwmgton, O. db A. R. Go. v. Boanrd of Gomm’rs, 12 N. C. 10; Spring V. W. Worhs v. Sohottler, 62 Cal. 69, and cases cited; State Board of Assessors v. Gent. R. Go. 48 N. J. Law, 146.</p> <p>They argued, among other things, that the track, right of way, and franchises are real estate, and, if taxable at all, must be assessed where situated. Franchises are incorporeal hereditaments, and incorporeal heredita-ments are real estate. Yellow R. Imp. Go. v. Wood Go. 81 TVis. 560; 2 Washb. Eeal Prop. (5th ed.), 303; E. S. sec. 1035; Spensley v. Valentine, 34 "Wis. 154; Smith v. Ford, 48 id. 115, 163. Under all the decisions, railway tracks, including ties, poles, wires, and other furniture, are real estate. 25 Am. & Eng. .Ency. of Law, 651; Booth, Street E. Law, §§ 210, 271; People ex rel. J). db F. R. Go. v. Gassity, 46 N. Y. 46-49. Telephone lines are real estate. Western D. Tel. Go. v. State, 9 Baxter, 509; 22 Albany L. J. 21; New Yorh, 0. & W. R. Go. v. W. XT. Tel. Go. 36 Hun, 205. So are electric light wires. Feohet v. Brahe, 12 Pac. Eep. 694; Seating I. db M. Go. v. Marshall E. L. do P. Go. 74 Tex. 605; Boston S. B. dr T. Go. v. B. db M. Tel. Go. 36 Fed. Eep. 297; Badger L. Go. v. Marion W. 8., E. L. db P. Go. 48 Kan. 182, 187. A pipe line is real estate. State v. Berry, 52 N. J. Law, 308. So is a railroad bridge. Hill v. L. G. & M. P. Co. 11 Wis. 223; Purtell v. Chicago F. ds B. Go. 74 id. 132. So are the foundations, columns, and superstructures of an elevated railway. People ex rel. W. Y. El. P. Go. v. Gommirs of Temes, 82 N. Y. 459. Contrary to tbe plain provisions of the statute, this real estate (viz., tracks, right of way, and franchises) was assessed like personal property, at the principal office of the company. It is clear from the decisions in this state that the property of a corporation cannot be separated .from the franchise, nor can the franchise be separated from the property. Yellov<) P. Imp. Go. v. Wood Go. 81 Wis. 554; Fond du Lac Water Go. v. Fond du Lac, 82 id. 322; Chicago, M. dé St. P. P. Go. v. Milwaukee, 89 id. 506. It is equally clear that the legislature has not made a provision for such cases. It is possible that while the franchises, track, and right of way are-taxable, no proper machinery has been provided for that purpose. Western TI. Tel. Go. <o. Poe, 61 Fed. Eep. 467, 468.</p> <p>They argued, among other things, that franchises are not taxable as property, -within the meaning of sec. 1034, E. S. Although language is used in Fond dm Lac Water Go. v. Fond du Lac, 82 Wis. 322, 332, to the effect that franchises are property subject to taxation, nevertheless no method has been provided in this state for their assessment; and, under the authorities, while franchises may be-made subjects of taxation by appropriate legislation, yet they are properly taxed in like manner with privileges and occupations, and, as their measure of worth is found in their earning power, they properly form a separate class by themselves. Ch. 48, E. S., under which the assessment in question is made, relates solely to the assessment of taxes upon property according to the constitutional rule of uniformity, and provides a method of preserving this uniformity as to both real and personal property. The authorities, however, bold almost universally tbat taxes upon franchises do not fall within the constitutional limitation of uniformity of taxation common to most of the states. Society for Sowings v. Ooite, 6 Wall. 594; Provident Institution v. Mass. id. 611; Railroad Co. v. Peniston, 18 id. 5-37; Home Ins. Co. v. New York, 134 U. S. 595; California v. C. P. R. Co. 127 id. 1,41; Southern C. 0. Co. v. Wemple, 44 Fed. Rep. 24; Comm. v. Lancaster S. Rank, 123 Mass. 493; Philadelphia C.for Ins. ■v. Comm. 98 Pa. St. 48. Franchises are grants from the state and merely confer personal rights. Although by the terms of the grants they are made assignable and transferable, an examination of the principles which control the exercise of that authority shows that there can be no actual transfer of them. A sale and transfer can amount to nothing more than the appointment of persons to take and enjoy a franchise similar to the one conferred upon the corporation in the first instance, and such persons take by virtue of a new legislative grant. 2 Morawetz, Priv. Corp. § 924; State ex rel. Atdy Gen. v. Sherman, 22 Ohio St. 411; 2 Rorer, Railroads, 882. The value of a franchise depends solely upon the extent of its exercise, and from the principles which govern its sale and transfer it is difficult to see how it can be said to have value in the sense the word is used in the statutes relating to taxation. Sec. 1052, R. S.; Pox v. Phelps, 17 Wend. 399; Smith v. Metropolitan, G. L. Go. 12 How. Pr. 187. Throughout the country, whenever it has been deemed expedient' to collect revenue from this source, it has been the invariable custom, so far as we have been able to determine, to levy a distinctive frcmchise tax. These franchise taxes differ widely in the various states, no less than thirteen systems being in operation. See Taxation of Corporations, 21 Pol. Sci. Quar. 269, 438, 636. It is believed that all these thirteen systems are in effect excises, and based upon the power to demand payment for privileges conferred. See, also, Welty, Assessments, § 125; 1 Desty, Taxation, 319; State v. Metz, 31 N. J. Law, 378; State v. P., W. <& B. Ii. Oo. 24 Am. Rep. 511, 45 Md. 361; DeWitt v. Says, 2 Cal. 468; Bored v. Sew JTorlc, 2 Sandf. 552; Smith v. Sew Yorlc, 68 N. T. 552; Passaic W. Oo. v. Paterson, 56 N. J. Law, 471.</p>

<p>Appeal from orders of the superior court of Milwaukee ■county: J. C. Ludwig-, Judge.</p> <p>This is an appeal from an order overruling a demurrer to the complaint, and from an order refusing the appellant leave to bring an action to foreclose its mortgage upon certain property in the custody of a receiver. The following is the substance of the complaint, so far as necessary to an understanding of the purpose and scope of the action and the questions to be ’decided.</p> <p>The plaintiff is a domestic corporation. The defendant West Superior Iron & Steel Company is a foreign corporation, existing under the laws of the state of Minnesota. Its place of business, where it has a large amount of property, is in Douglas county in this state. It does not appear that it has either a place of business or property in any county of this state, other than Douglas county. The plaintiff obtained a judgment against this defendant in the circuit court •of Milwaukee county, which it at once docketed in Douglas county. On this judgment it afterwards issued an execution ■to the sheriff of Milwaukee county, who returned it entirely unsatisfied on the day of its date. The plaintiff then commenced this action, on behalf of itself and all other creditors of the defendant, in Milwaukee county. The defendant is wholly insolvent. Twenty-two parties, who are made defendants, have obtained judgments and liens upon its property by levy of executions or attachments or by garnishment. Two creditors claim mechanic’s liens upon certain of its property. The Central Trust Company, the appellant, has two mortgages upon its real and personal property. The total amount of its indebtedness is in excess of $2,000,000. The probable amount of its assets is not stated. Its property comprises an iron and steel plant at Superior in Douglas ■county in this state, with materials, supplies, and tools, of large aggregate value. The greatest element of value in f,bis property is the adaptability and usefulness of each part in connection with the whole. The value of any single part, separately, is very small in comparison with its value as a part of the whole. Except by a single, aggregate sale of the -whole, no advantageous sale could be made. On account of the large number of judgments and other liens, some of which are contested, no adequate price would probably be realized on a sale of the property subject to these liens and incumbrances. So, it seems that the best promise of realizing a suitable and adequate price, and so of promoting the interests of all the creditors, is by an aggregate sale, free from liens and incumbrances. This makes it necessary that, all creditors having liens upon the property be made parties; to the action. Twelve of the defendants are stockholders of the principal defendant, who have only in part paid their subscriptions to the capital stock of the corporation. The-constitution and laws of Minnesota make the stockholders liable to the creditors of the corporation, not only for the amount unpaid of the capital stock, but for an additional amount equal “to the amount of stock held and owned by them.” The plaintiff does not know the names of the stockholders of the defendant, other .than those who have been made defendants. The action was commenced April 18*. 1894. The principal defendant appeared in the action and answered on April 19, 1894. On the same day the court made an order declaring the defendant insolvent and appointing a receiver of the property.</p> <p>The relief asked is that the West Superior Iron & Steel Company be declared insolvent; that all its property and assets situated within this state be sequestered and a receiver thereof appointed; that a discovery be had of its stockholders, and of the amount of stock owned by each, with the amount unpaid upon their stock subscriptions; that the stockholders be required to pay the amount unpaid upon their stock subscriptions, with a sum equal to the amount of capital stock held by each of them; that all other stockholders so discovered be joined as defendants; that the sheriff of Douglas county turn over to the receiver all property in his hands by virtue of levies of executions or attachments; 'that the court direct a just and fair distribution of the property of the defendant among its creditors; that all other ¡actions be enjoined; that creditors having liens be required to turn over to the receiver all property subject to their •-claims or liens, to be thereafter adjusted in this action; that •all creditors of the defendant be required to exhibit their -claims and become parties to the action; and that the property of the defendant be sold as a whole, free and clear of ¡incumbrances.</p> <p>The appellant, The Central Trust Company, demurred to 'the complaint on two grounds: (1) That the court had no jurisdiction of the subject of the action, and (2) that the •complaint did not state facts sufficient to constitute a cause • of action. This demurrer was overruled, and from the order dhe appellant appeals.</p> <p>The appellant also moved for leave to serve process upon the receiver and to make him a party in foreclosure proceedings which it desired to commence for the foreclosure of its mortgage against the principal défendant. The court ■denied the motion. Erom the order denying the motion the ¡appellant appeals.</p> <p>They argued, among other things, that the suit was evidently instituted under ch. 86, E. S., but that •chapter applies only to domestic corporations. There is no precedent or foundation for such a proceeding at common law, in the absence of a statute. Without statutory authority, the court possesses no visitorial powers over even ■domestic corporations. Yam, Pelt v. TI. S. M. Springs Co. 13 Abb. Pr. (1ST. S.), 325; Atly Gen. v. Utica Ins. Co. 2 Johns. Oh. 371; Yerplanck v. Mercantile Ins. Co. 1 Edw. 84; Ferris ■m. Strong, 3 id. 127; Fisher v. World Mut. Ins. Co. 15 Abb. Pr. (FT. S.), 363; Clinch v. Sottth Side R. Co. 1 Hun, 636; Rochester v. Bronson, 41 How. Pr. 78; Worth State O. c& G. M. Go. v. Field, 64 Mel. 151; BalUn v. loéb, 78 Wis. 404. Sequestration proceedings cannot be taken against foreign corporations. 4 Wait, Pr. 202; McBride v. Farmers' Bank, 28 Barb. 476; Republican M. S. Mimes v. Brown, 58 Fed. Rep. 644; Stafford v. Am. Mills Go. 13 R. I. 310; Burgoyne v. E. <& W. R. Go. 13 N. T. Supp. 537; Dayv. IT. S. G. S. Go. 2 Duer, 608. No execution was ever issued on the judgment docketed in Douglas county, where tbe debtor’s property is shown to be located. The only hypothesis uponwhich proceedings of this kind are justified is that there can be found no property of the debtor upon which an execution may be levied or the debt realized. No other conditions justify the invoking of the equity powers of the court, yet the complaint shows just the contrary state of affairs. Yast areas of real estate in Douglas county, still standing in the debtor’s name and all subject to the lien of the plaintiff’s judgment, are scheduled in the complaint, but no reason or excuse is offered for not proceeding in the manner pointed out by the statute for the collection of the judgment. Equity procedings will not lie under such circumstances. Liming stone v. Arnoux, 15-Abb. Pr. (N. S.), 158; National T. Ba/nkv. Wctmore, 124 N. Y. 250; Dunham v. Gox, 10 N. J. Eq. 437; Payne v. Sheldon, 43 Plow. Pr. 1; Lansing v. Easton, 7 Paige, 364; Walker v. White, 36 Barb. 592; Watson v. N. Y. O. R. Go. 6 Abb. Pr. (N. S.), 91; Scouton v. Bmder, 3 How. Pr. 185; Ghautaugue Go. Bank v. White, 6 Barb. 589; S. O. 6 N. Y. 236; Klee v.. E. H. Steele Go. 62 N. W. Rep. 399; Williams v. Sexton, 19' Wis. 42.</p> <p>Eor the Pittsburgh Iron <& Steel Engineering Company there was a brief by Victor Lvnley, attorney, and Walter-Ayers, of counsel. They argued, among other things, that the affairs of this corporation could in no event be wound up by a Wisconsin court. The double liability of stockholders could be enforced only in Minnesota, the law of' which provides a statutory remedy which is held to be-exclusive. McKusick v. Seymour-Sabin Go. 48 Minn. 158; Mohr v. Minnesota Elevator Go. 40 id. 843; Johnson v. Fischer, 30 id. 173; Allen v. Walsh, 25 id. 543; May v. Black, 77 Wis. 104. Before entertaining a creditor’s bill it is essential that the judgment creditor shall have, in good faith, issued his execution, and that the same shall have been returned unsatisfied by the officer, who shall have made-all reasonable and diligent search for real and personal property, not exempt from sale, upon which to levy. OlaPk v. Bergenthal, 52 Wis. 103, 108; Gilbert v. Stockman, 81 id. 602. The execution should be issued to the county of the-debtor’s residence, and to every county in which the debtor is known to have property. Durcm v. Gray, 129 Ul. 9. An allegation of insolvency will not dispense with the formal return of the execution unsatisfied. National T. Bank v. Wet-more, 124 N. T. 241; Adsit v. Butler, 87 id. 585; Estes v.Wilcox, 67 id. 264; Alkyn v. Thurston, 53 id. 622; Wadsworth Schisselbauer, 32 Minn. 87; GiTb&id v. Stockmcm, 81 Wis. 602.</p> <p>contended, inter alia,. that this action is a common-law creditor’s bill, brought at. the instance of a judgment creditor, to administer the assets-of an insolvent corporation for the benefit of all its creditors,, and to enforce its unpaid stock subscriptions and the statutory liability of stockholders, and also to discover and reach its equitable assets for the satisfaction of its debts. The-fact that the defendant is a foreign corporation is immaterial ; the action is not statutory, and it does not turn on any peculiarity of domestic corporations. It is based on the fact-that the defendant is insolvent, that it has stock subscriptions and other equitable assets which cannot be reached by execution, and that the plaintiff is unable to satisfy its claim at law. Independently of statute, a judgment creditor can bring an action for the administration of the assets of a foreign corporation. 2 Cook, Stock, § 861; Smith v. St. L. M. L. Ins. Go. 3 Tenn. Ch. 502, 505; Mwrra/y v. Vanderbilt, 39 Barb. 140,147; Redmond v. Hoge, 3 Hun, 171,175,176. The unpaid stock subscriptions of an insolvent foreign corporation are an equitable asset, which can be reached only by a creditor’s bill brought in behalf of all creditors and necessitating an administration of the corporate assets. Handley v. StutB, 137 U. S. 366; S. O. 139 id. 417, 427; Shiclclev. Watts, 94 Mo. 410; Griffith v. Mangam, 73 N. T. 611; Bartlett v. Drew, 57 id. 587; Holmes v. Sherwood, 3 McCrary, 405; 1 Cook, Stock, § 205; 2 Morawetz, Priv. Corp. § 866. A. creditor’s bill of this kind, to reach unpaid stock subscriptions and administer the assets of a corporation, is a common-law proceeding, independent of statute. Adler v. Mil/waulcee P. B. Hfg. Go. 13 Wis. 57; Pierce v. Milwaukee ■Gonst. Go. 38 id. 253.</p>

On petition of Ben Rosenberg, an order was issued out of this court, directed to the sheriff of Jackson county, returnable on the 30th day of April, 1895, directing the said sheriff to show cause why a writ of habeas corpus should not issue to inquire into the legality of the custody wherein he held the petitioner.

Appeals from a judgment of the circuit court for Racine county: Eeank M. Fish, Circuit Judge.

H. Johnson, Circuit Judge. The plaintiffs brought a garnishee action against the defendant Singer, as creditors of Schwartz & Pohlman. The latter, on the 12th of October, 1892, had executed to Singer, in due form of law, a voluntary assignment for the benefit ■of their creditors.

CeRtioeaRI to review proceedings of the common council of the city of Superior. At the April election, 1895, Charles S. Starl&weather, the relator, was elected mayor of the city of Superior, and thereafter duly qualified and entered upon the duties of his office. On the 2d day of July, 1895, Angus McQueen, one of the aldermen of said city, filed with the common council charges of official misconduct against.the relator.

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. Buehell, Circuit Judge.</p> <p>The facts are stated in the opinion. The plaintiff appeals from a judgment of nonsuit.</p> <p>to the point that the respondent would be liable on an implied contract, cited Nelson 'o. New Noth, 63 N. T. 535, 545; Argenti v. Sum Francisco, 16 Cal. 255; Athens v. Thomas, 82 Ill. 259; Kram/rath v. Albany, 127 N, Y. 575; Bank of Chillicothe v. OhilUcothe, 7 Ohio, 358; Buckley v. Derby F. Co. 2 Conn. 252.</p> <p>To the point that the town can only be chargeable for services of this kind when rendered by virtue of some contract made with its officers for such services, they cited Jones v. Bind, 79 Wis. 64, 67.</p>

<p>Appeal from a judgment of the circuit court for Winne‘ bago county: Geo. W. Bubnell, Circuit Judge.</p> <p>This is an action of replevin to recover one and one-half million feet of pine lumber ■which at the time of the commencement of the action, to wit, September 6, 1890, was in the possession of Hoxie & Mellor. The sheriff seized upon the writ 1,263,236 feet of lumber, of the value of $9,336.85-. On the same day that this action was commenced, but after the lumber had been seized upon the writ, Hoxie & Mellor made a voluntary assignment for the benefit of creditors to Charles Y. Bardeen, who was made a party to the action and upon whose resignation the defendant Barnes was appointed assignee and substituted as a party to this action. The lumber replevied was by stipulation sold by the as-signee, and the plaintiff obtained judgment against the as-signee for the value thereof as before stated.</p> <p>The action was tried by the court, trial by jury having, been waived. The evidence showed that plaintiff, on the 27th of June, 1887, was the owner of a large tract of pine land and that upon that day she entered into a contract in writing for the sale of all the pine timber upon said land to- one J. H. Weed, the purchase price being $20,000. This contract provided that the plaintiff “ has sold, and hereby does sell, assign, and transfer and set over unto the party of the second part, his executors, administrators, or assigns, all the-pine timber standing, growing, or being upon said premises- or any part thereof,” with the right to enter on said premises for the purpose of removing said timber at any •time'within five years. The contract further provided “ that the title to the logs and timber and lumber manufactured therefrom shall be and remain in the party of the first part [the plaintiff]” until the purchase price of $10 per thousand, amounting in all to $20,000, is fully paid. Other provisions of the contract required Weed to pay all the taxes levied upon the pine lands in question before the time the timber should be removed therefrom and notice of such removal given to the plaintiff.</p> <p>In December, 1888, Weed sold and assigned to Hoxie c& Mellor all his interest in said contract by written assignment, and they assumed to carry out the terms of the contract. Hoxie <& Mellor had a large lumber business at An-tigo, Wisconsin, and in the state of Michigan. During the winter of 1889 and 1890, they cut from the lands of the plaintiff, under this contract, 2,600,000 feet of logs, which they mixed with 11,400,000 feet of other logs of about the same quality cut from land owned by said Hoxie <& Mellor, called the Bryant logs, making a total of 14,000,000 feet of logs, which they cut and drew to Antigo to the mill of J. ID Weed, where during that winter and spring they were all manufactured into lumber. Of this lumber so manufactured' 3,034,500 feet graded shop common and better, the balance being of inferior grades. All of the shop common and better had been sold by Hoxie di Mellor to the Antigo Lumber Company prior to September 6, 1890. On that date there was left in the possession of Hoxie & Mellor, in the yard at Antigo, about 10,000,000 feet of lumber, of which 48,000 feet was of the grade of shop common and the balance of the grades below shop common, which had been manufactured! from said 14,000,000 feet of logs and which was piled separately according to its grade. This 10,000,000 feet of lumber was made up of lumber cut from the whole 14,000,000' feet of logs, so intermixed that the identity of the lumber cut from the Bent logs could not be determined. Of the 2,600,000 feet of lumber manufactured from the Bent logs, 910,000 was of the grade of shop common and better, and 1,690,000 feet was common lumber, and this last amount of common lumber was a part of the 10,000,000 feet of common lumber remaining in the plaintiff’s yard on September 6, 1890, when this action was begun; but, as before stated, it was so intermixed with other lumber of the same grades that its identity could not be determined. On the 6th day of September aforesaid, there was due and unpaid of the purchase price of the lumber so sold by the plaintiff $10,336, and upon that day, as before stated, the plaintiff commenced this replevin action and caused to be seized out of the 10,000,000 feet of lumber aforesaid, 1,263,236 feet of lumber, all of which was of grades below shop common except 48,000 feet.</p> <p>The circuit judge made findings of fact substantially in accordance with the facts above stated, and concluded that the plaintiff was entitled to judgment for the lumber re-plevied or its value, to wit, $9,336.83, and judgment was so rendered from which the defendants have appealed.</p> <p>contended, inter alia, that the contract must be treated as a bill of sale or conveyance of the property which has been replevied, with the mere reservation of a lien to the plaintiff for the amount due her upon the purchase price. Wing v. Thompson, 78 Wis. 256; Lillie v. Dunbar, 62 id. 198; Bunn v. Valley L. Co. 51 id. 376; Cadle v. McLean, 48 id. 635; Hicks v. Smith, 77 id. 146; Golden v. Clock, 57 id. 118. As soon as the timber was cut and converted into logs or lumber, it became personal property, and sec. 2317, R. S., at once became applicable. It then became a contract for the sale of personal property, the legal title to which was to remain in the vendor and the possession in the vendee. Wadleigh v. Buckingham, 80 Wis. 230. This contract, not having been filed, is void as against tlie assignee, and the property covered by it passed to the assignee upon the assignment. S.I. Sheldon Oo. v. Mayers, 81 Wis. 627; Batten v. Smith, 62 id. 92; Backhaus v. Sleeper, 66 id. 68; Wadleigh v. Buckingham? 80 id. 230; Valley Lumber Oo. v. Hogan, 85 id. 368. The' lumber, having become part of a common mass, could not be taken upon the writ of replevin. See Young v. Miles, 20 Wis. 615; Mowry v. White, 21 id. 422; Young v. Miles, 23 id: 643; Hewton v. Howe, 29 id. 531; Eld/red v. Oconto Go. 33 id. 133; Hatpin v. Stone, 78 id. 187; George v. McGovern, 83-id. 555.</p> <p>argued, among other things, that this is a sale of standing timber. Daniels v. Bailey, 43 Wis. 566 ; Strasson v. Montgomery, 32 id. 52; Young v. Lego, 36 id. 394; Golden v. Glock, 57 id. 118; Lillie v. Dumb cur, 62 id. 198; Grawford v. Witherbee, 77 id. 419, 426; Hi/rth v. Graham, 50 Ohio St. 57, 64, and oases cited; Larson v. Cook, 85 Wis. 564. But even if it were not it would be good between the plaintiff and Hoxie c& Mellor in this action, since the action was begun before the assignment. When a mixture of goods is wrongful and the goods of the innocent party cannot be identified, he can replevy his proportionate share, although the goods of the wrongdoer are of a better quality; but when the mixture is by consent one party may recover his proportionate share if the goods are all of the same value. Young v. Miles, 20 Wis. 615; Neioton v. Howe, 29 id. 531; Eld/red v. Oconto Go. 33 id. 133; Young v. Miles, 23 id. 643; Hatpin v. Stone, 78 id. 183; Esson v. Tcvrbell, 9 .Gush. 407.</p>

W. Bueuell, Circuit Judge. This is an action in equity tried upon the same evidence-as that submitted in the replevin action of Bent v. Iloxie, ante, p. 625, and involved the same logging contract. The-action vas brought to recover from the assignee the balance due on said logging contract after deducting the value of the • lumber replevied in the replevin action.

W. Bubhell, Circuit Judge. The defendant is a corporation engaged in the manufacture of zinc washboards. The plaintiff is an infant of eighteen years, who received a personal injury while employed by the defendant in its factory.

<p> Waste: Cutting of timber by mortgagor: lAeense: Evidence. </p> <p>1. In an action by a mortgagee to restrain waste by the mortgagor, the evidence is held to support findings of the trial court that the' mortgagor had a license, given both before and after the mortgage-was delivered, to cut the wood from the premises, and that no» waste other than such cutting had been committed.</p> <p>2. In such action, evidence of the removal of personal property which. had been sold with the land by the mortgagee to the mortgagor but was not covered by the mortgage, was properly excluded.</p>