Volume 91 — Wisconsin Reports

<p>Appeal from a judgment of tbe circuit court for Manito-woc county: N. S. Gilson, Circuit Judge.</p> <p>Tbe assessed valuation of tbe taxable property of tbe plaintiff Gounty, at tb'e times referred to, exceeded $6,000,000. On May 31,1890, tbe county board appointed a special committee to inquire into and report on tbe subject of depositing surplus money in banks. On November 26, 1890, tbe said committee reported favorably to sucb deposit, upon terms mentioned. Tbe county board thereupon adopted resolutions to tbe effect that T. C. Shove Banking Company [a corporation) be selected as deposita^ of tbe county funds, under sec. 693, R. S., as amended, and that all funds tben in tbe treasury of said county, and wbicb should thereafter be received by its treasurer, should, until the further order of said board might otherwise direct, be deposited in said bank and with said company, provided tbe bank should first give security, to be approved by tbe county board, and provided, •further, that said company, before snob deposit, should contract in writing with said board for tbe payment to the county of such interest upon the funds which should be so deposited as might he mutually agreed upon, but rvhich should not be less than at the rate of three per cent, per annum on each average monthly balance of so much of said funds - as might at all times be subject to disbursement by said treasurer, and at a rate of not less than four per cent, per annum on so much, if any, of said funds as might he so deposited under Special agreement that the same should not be withdrawn until the expiration of one year from the date of such' deposit, “ except it be done by order of this [county] board.”</p> <p>On December 30, 1890, said county board, through its committee, entered into a contract in writing with said banking company, reciting said resolution and statute and action of the county board, whereby said banking company, in effect, did promise, stipulate, and agree to and with said county board that said company would pay to said county, on all funds belonging to said county and which should be deposited with said banking company, interest at the rate of three per cent, per annum on each average monthly balance of so much of said funds as might at all times be subject to disbursement by said treasurer, at the end of each and every month during the time such funds remained so on deposit, and that said banking oompany would pay to said county, on all funds of said county which should be deposited with said banking oompany, and which should not be withdrawn therefrom until the expiration of one year from the date of such deposit, “ except it he so withdrawn hy the order of said board, interest at the rate of four per cent, per annum, payable one year from the date of such deposit.” Thereupon the defendants gave to the plaintiff a bond, of which the following is a copy, to wit:</p> <p>“Know all men by these presents, that we, the T. C. Shove Banking Company, a corporation duly organized under the laws of the state of Wisconsin, of the city of Manitowoc, in the county of Manitowoe, in said'state, principal, and George Cooper, Horatio Truman, George Pankratz, Max Bohr, William Rahr, Reinha/i'dt Bakr, C. A. Cielow, and T. C. Shove, of said city, county, and state, sureties, are held and firmly bound unto the county of Manitowoo, in the state of Wisconsin, in the penal sum of two hundred thousand dollars, to be paid to the said county of Manitowoo, for which payment well and truly to be made we bind ourselves, our, and each of our, heirs, executors, and administrators, jointly and severally, firmly by these presents.</p> <p>“ Sealed with our seals, and dated this 31st day of December, A. D. 1890.</p> <p>“ The condition of this obligation is such that whereas the above bounden, the said T. C. Shove Banking Company, was duly selected and designated by the county hoard of said county, at its annual meeting duly held in the month of November, 1890, and which meeting commenced the Tuesday next succeeding the last general election held in said state, as a depositary of and for the funds of said county, pursuant to section 693 of the Revised Statutes of said state and acts amendatory thereof, and with which said banking company all funds now in the county treasury of said county and which shall hereafter be received by the treasurer of said county shall be deposited, pursuant to said section and acts amendatory thereof.</p> <p>“ And whereas, the said banking company, in consideration of the deposits so to be made, having cont/raoted with said county board that said banking company will pay to said county, on all funds belonging to said county and which shall be deposited with said banking company, interest at the rate of three per cent, per annum on each average monthly balance of so much of said funds as may at all times he subject to disbursement by said county treasurer, at the end of each and every month, during the time such funds remain so on deposit, and that said banking company will pay to said county, on all funds of said county which shall be deposited with said banking company and which shall not Toe- withdrawn therefrom until the expi/ration of one year from the date of such deposit, except it he so withdrawn hy the order of said hoard, interest at the rate of four per cent, per annum, payable one year from the date of such deposit.</p> <p>“Row, therefore, if the said T. 0. Shove Banking Company shall pay to said treasurer, or other person by law authorized to receive the same, all such interest on all such average monthly balances of said county funds deposited with said banking company suhjeet to the disbursement of said treasurer, at the rate of three per cent, per annum, at the end of each and every month during the time such funds shall remain so on deposit as aforesaid, and if said banking company shall pay to said treasurer, or other person by law authorized to receive the same, all said interest on all funds which shall be deposited with said banking company and not he withdrawn therefrom u/ntil the expiration of one year from the date of such deposit, unless otherwise ordered hy said hoard, at the rate of four per cent, per annum, on the date of the expiration of such year, and if such company shall pay over and deliver to the said treasurer, or other person by law authorized to receive the same, all moneys and funds belonging to said county and deposited with said banking company subject to the disbursement of said treasurer as aforesaid, on due demand being made therefor, and to pay and deliver to said treasurer, or other person authorized to receive the same, all such funds and moneys deposited with said company, not to be withdrawn until the expiration of one year from the date of such deposit, on the day of the expiration of said year, or sooner if said hoard shall so order, and that if the said banking company shall well and truly perform all other conditions and agreements by it to be performed by reason of the depositing of said county funds with said company, then this obligation shall be void, otherwise to be and remain in full force and virtue.”</p> <p>That bond was signed and sealed by each and all of the defendants. ¿</p> <p>On May 19,1891, a resolution was adopted by said board, in effect ratifying the contract so made. All deposits of funds of said county made with said banking company after the date of said bond were so made under and pursuant to the aforesaid resolution, contract, and bond. On November 28, 1891, the county board adopted a report of its committee to the effect that the T. C. Shove Banking Company had agreed to continue the arrangement in regard to the interest on monthly balances, as agreed upon, for the next year. No other or further action in the matter than that stated in said report, together with the adoption thereof, was taken by said county board at its annual meeting in 1891. Under and pursuant to said resolution of November 26, 1890, and said contract and bond, the treasurer of said county commenced depositing county funds with said banking company January 2, 1891, and continued to so deposit said funds thereafter up to and until April 12, 1892.</p> <p>On April 12, 1892, the said banking company made a voluntary assignment of all its assets and property, for the benefit of its creditors, to Adolph Piening, who thereupon qualified as such assignee and entered upon the discharge of his duties as such. On May 19, 1892, the said county board, in behalf of said county, demanded the money on deposit in said bank, with the accrued interest thereon, but said banking company, and each and every of its officers, refused to pay over said moneys and funds so demanded, or any part thereof. The county board, on May 21,1892, duly demanded from each and every of said-sureties the amount of said moneys and funds on deposit as aforesaid and then due and owing from said banking company to said county, but each of said sureties neglected and refused to pay said amount demanded, or any part thereof. Thereafter said county filed with said assignee its claim against said banking company for the amount of said funds, and said assignee paid thereon to said county dividends on its claim amounting to $12,838.78. No other or further sum has been paid to or received by said county on account of said funds so deposited.</p> <p>7</p> <p>This action was brought upon said bond, against the principal and sureties therein named, to recover damages by reason of said breaches of said bond. The defendant sureties denied liability on said bond. Upon the trial the facts were found substantially as stated, and also to the effect that December 1, 1893, there was due, owing, and unpaid to said county, from said banking, company, upon said contract, and from all of said defendants upon said bond, on account of the funds deposited as aforesaid, for principal and accrued interest, the sum of $43,106. And as conclusions of law the court found, in effect, that the action of the county board, November 23, 1891, was not a new selection or designation of a depositary for the county funds, and did not affect or change said contract of December 30,1890, nor terminate or affect the obligation of the defendants on their said bond, arid that the said banking company, as principal, and the other defendants, as sureties, were bound by and were liable on their said bond, jointly and severally, to the county, for the amount due and owing thereon from said banking company; that the plaintiff was entitled to judgment against all of said defendants, jointly and severally, for the principal sum so on deposit and the accrued interest thereon, amounting in the aggregate to $43,106, together with costs and disbursements. Erom the judgment entered accordingly the said defendant sureties appeal.</p> <p>They contended, inter alia, that ch. 87, Laws of 1885 (sec. 693, S. & B. Ann. Stats.), conferred on county boards a power not previously exercised or ¡possessed; that the language “ the county board of every county may annually at their first meeting, or within the month of June, . . . select some bank,” etc,, was neither mandatory nor directory, but merely permissive, clothing the board with a discretion to have the funds of the county placed in a bonded depository or have them remain in the care and custody of the county treasurer; that no county board is obliged to take any action pursuant to the law, but if it elects to act it must make the selection from year to year, annually, once each year, each recurring board acting independently and for itself; that the words “may . . . select,” etc., grant a power, and the word “annually” is a restraint upon its- exercise; that it was not the purpose of the statute to permit to be done annually what before could be done biennially or once in three, or five, or ten years, or once a month, but to allow an act to be done which before was not lawful at all, provided it be done once every year or of tener. The liability of a surety is sti'ictissimi juris and cannot be extended by implication. Drioikwine v. Eau Claire, 83 "Wis. 428; State v. McEetridge, 84 id. 500; Brandt, Suretyship (1st ed.), §§ 19, 80; Murfree, Off. Bonds, § 710; Jenkins v. Gunnison, 50 Wis. 393; Wheeler & W. Mfg. Co. v. Brown, 65 id. 99; W. W. Eimlall Co. v. Baker, 62 id. 526; U. S. v. Boyd, 15 Pet. 187; Miller v. Steward, 9 "Wheat. 680; McMiclcen v. Webb, 6 Flow. 292; ¶. S. v. Boecker, 21 "Wall. 652. The bond in suit is an official or statutory bond. Murfree, Off. Bonds, §§ 35-37; 2 Am. & Eng. Ency. of Law, 46 §f\ U. 8. v. Boyd, 15 Pet. 187. The law pursuant to which an official or statutory bond is given is imported into the instrument itself, to the same extent as if written in full in its recitals or conditions, and constitutes an essential part of the contract, defining and limiting the liability of sureties. Sanger v. Baumberger, 51 "Wis. 592; Morrow v. Delaney, 41 id. 149; 2 Am. & Eng. Ency. of Law, 466i; Brandt, Suretyship, § 470; Murfree, Off. Bonds, § 193; King Co. v. Ferry, 5 Wash. 536. The sureties’ liability in this case, therefore, is the same as it would have been if the provision of the statute requiring a new selection of a depositary, a new contract, and a new bond to be made each year had been incorporated into the bond. Conditions or recitals of a bond, whether written or imported into it by operation of law, are limitations of, and restraints upon, the obligation. If the undertaking be expressed in general terms as to time, place, amount, duration, or term of office, its obligation is limited within the terms of the express or implied recitals. Scmger v. BcCumberger, 51 Wis. 592; Fond du Lao v. Moore, 58 id. 170; National M. B. Asso. v. Conkling, 90 U. T. 116; Miller v. Stewart, 9 Wheat. 680; Murfree, Off. Bonds, § 182; Brandt, Surety-ship, §§ 138-141; London Ass. Co. v. Bold, 6 Q. B. 514; Hassell v. Long, 2 Maulé & S. 370; 2 Am. & Eng. Ency. of Law, 464. The failure to specify in the bond a definite term during which it should remain in force is not available to the plaintiff. King Co. v. Ferry, 5 Wash. 536; Brown v. Lattimore, 17 Cal. 93. ' The sureties on the official bond of an officer elected or appointed annually are liable only for his official acts during the term. And it makes no difference if the term specified in the bond is indefinite as to duration, or is stated to be longer than the term fixed by law or by the terms of the appointment. 2 Am. & Eng. Ency. of Law, 466ot, note 5; Murfree, Off. Bonds, §§ 621, 622, 625, 626, 644; Brandt, Suretyship, §§ 139-142; Throop, Pub. Off. §207; Moss v. State, 47 Am. Dec. 116; Chelmsford Co. v. Demarest, 7 Gray, 1; Dedham Bank v. Chickering, 3 Pick. 340; Boston II. Manufactory v, Messinger, 2 id. 235; IT. S. v. Echford's Fw?rs, 1 How. 250; South Carolina Soo, v. Johnson, 10 Am, Deo. 644; Savings Bank <o. LLunt, 72 Mo. 601. Where the term is for some fixed and definite period of time and until a successor shall be elected or appointed and qualified, the sureties’ liability extends beyond the fixed period a reasonable time — long enough to enable a successor to be elected and to qualify, and no longer. Murfree, Off. Bonds, §§ 225, 625, 626, 644; Brandt, Suretyship, §§ 458, 460; 2 Am. & Eng. Ency. of Law, 466?», note 5; Chelms-ford Co. v. Demarest, 7 Gray, 1; Amherst Bank v. Boot, 2 Met. 522; State v. Powell, 40 La. Ann. 241; Fond dm, Lae v. Moore, 58 Wis. 170; Omro v. Kdime, 39 id. 468. If an official or statutory bond specifies in its conditions less than the statute requires, it" will, nevertheless, be enforced as far as it goes. If it enlarges upon the statute, the enlargement will be treated as surplusage and the bond held good for no more than the statute requires. Murfree, Off. Bonds, §§ 38-40; TJ. S. v. Ilodson, 10 Wall. 395; IT. S. v. Bradley, 10 Pet. 364; Alleghany Co. v. Van Camjpen, 3 Wend. 48; Throop, Pub. Off. §§ 192, 193; 2 Am. & Eng. Ency. of Law, 466f, 466y.</p>

<p> Change of venue-: “ Convenience of witnesses and the ends of justice.” </p> <p>1. Under sec. 2622, R. S., authorizing a change of the place of trial “ when the convenience of witnesses and the ends of justice would be promoted by the change,” the fact that the convenience of a large number of witnesses requires the change may, of itself, be sufficient ground for the conclusion that the ends of justice would be promoted thereby.</p> <p>2. In the exercise of his discretion in respect to such change, the circuit judge may take into account matters within his own knowledge and observation,^ well as the proofs presented.</p>

<p>Appeal from, a judgment of the circuit court for Manito-woc county: 1ST. S. Gilson, Circuit Judge.</p> <p>The plaintiff sued to recover damages for the loss of the greater part of one of his feet, caused by the wheels of defendant’s locomotive passing over the same, about 200 feet west of the platform of its station at Eeedsville, an unincorporated village having a population of about 500 and several traveled streets. The main track of defendant’s road passes through block 51 of the village in a nearly east and west direction, the station building being somewhat east of the center of this block. A sidetrack passes through the block on the north and one on the south of the station house; and Fifth street, a much traveled highway, passes in a north and south direction across the said tracks and along the west side of the block. It appeared that the defendant was accustomed to give signals by bell or whistle when its trains started from the station to go over this and other streets, with which custom the plaintiff was familiar. On the occasion in question he had been engaged with one Oooney in loading a cattle car on or near Fifth street, near the place where the south sidetrack crosses it. This sidetrack, at this point, was nineteen feet south of the main track. When the car was loaded, the passenger train came in from the east and went west, and the plaintiff then passed around the end of the cattle car, and saw the freight train on the main track at the depot, loading or unloading freight, and the locomotive was about 200 feet from Fifth street, and headed west, so as to cross said street when the train started. The plaintiff had started from the stock car, north along Fifth street, and stopped to engage in a conversation with Oooney in respect to the necessity of tying a bull they had put in the stock car, before the train from the west arrived to take the car away. Oooney said the train was coming, and the plaintiff was looking to see it, in a direction opposite to where the freight train stood at the depot, and with his back towards the latter train. He had passed north on Fifth street until he was quite near the main track. The engine, in the meantime, had been detached from the train, and started up, running at a rate of speed variously estimated at from eighteen to twenty-five miles per hour, the fireman being in control of it, but without ringing the bell or giving any signal; and, as the plaintiff stepped upon the track, he received the injury complained of, by being struck by the wheel of the locomotive.</p> <p>The plaintiff’s account of the situation and what occurred was, in substance, that be was between tbe south sidetrack and the main track, about two steps from the latter, facing-southwest toward the car where Cooney was; that he turned around and looked at the train at the depot, where they' were loading or unloading freight; that about this time Cooney’s son James came, and the plaintiff had taken a step and was within one step of the track; that he turned, looked at James, told him to get a rope to tie the bull, and told him if the stock train came he (the plaintiff) could tie the bull before they pulled out. “As he turned from me, I turned. He said the train would be from the west. I looked west, and turned onto the track — swung around. "Was. close to the track; standing southwest. Just as I swung my feet I was into the track with my left foot; and as I stepped in the cowcatcher was on me.” He testified that he did not hear any noise just before he was struck; that he listened, and was listening all the time; that the bell was not rung or whistle blown; that it was a fine day, and there was nothing to prevent his hearing signals; and that he did not know whether the train was going out on the main track or not; that he had talked only two or three words after he saw the train standing at the station before the locomotive struck him, and he did not see it again from the time he looked back at it over his shoulder until it came in contact with him; that when he looked back at it his back was towards the locomotive, and he then had the conversation with Cooney about tying the bull, and was standing a foot or two from the main 'track; that he did not see the necessity of looking when he had looked just before that; that he did not look to see where the engine was when he stepped into the track, as he had looked just before; that there was only a few seconds of talk with James Cooney, and that he did not look while talking with him; that this was only a few seconds, and when he stepped on the track the cowcatcher was right on his legs; that he did not know when the engine started from the station; that there was a plain open track all the way between him and the locomotive, without any obstruction to prevent him from seeing the train. “Q. When you got through talking with Janies Oooney, you stepped inside the iron rail without stopping to look up at the train again? A. He said that the train •would be here from the west. Gowt: The question is a plain one. A. I stepped right in; yes, sir. ... I looked west as I stepped into the track. When he said there was a train coming in from the west, I looked that way. I had looked east just before I spoke to him, and he said it would be here from the west, and I looked west when I stepped in. I did not see anything coming from the west, and I could have heard it from the east if she had given the signal.”</p> <p>The defendant moved for a nonsuit at the close of the plaintiff’s case, which was granted, as appears from the opinion of the court in the record, on the ground of contributory negligence on the part of the plaintiff.</p> <p>They contended, inter alia, that upon the facts and under the decisions of this court the trial court was not justified in holding, as matter of law, that plaintiff was negligent. Johnson v. L. S. T. & T. Co. 86 Wis. 64; Little v. Superior R. T. R. Co. 88 id. 402; Greany v. L. I. R. Co. 101 N. Y. 419; Siegel v. M. & N. R. Co. 79 Wis. 404, 407; Valin v. M. & N. R. Co. 82 id. 1; Piper v. C., M. & St. P. R. Co. 77 id. 247; Chaffee v. B. & L. R. Co. 104 Mass. 108, 116; Phillips v. M. & N. R. Co. 77 Wis. 349, 355; Glushing v. Sharp, 96 N. Y. 677. Unlawful speed, omission of signals, and engineer’s absence, leaving but one man to watch and to handle the engine, were the proximate causes of the injury. At least the jury would have been at liberty to so find. Piper v. C., M. & St. P. R. Co. 77 Wis. 267; Win-Stanley v. C., M. & St. P. R. Co. 72 id. 375; Rohde v. C. & N. W. R. Co. 86 id. 309; Hooker v. C., M. & St. P. R. Co. 76 id. 542, 546; Klanowski v. G. T. R. Co. 64 Mich. 279. Plaintiff’s progress across the tracks was arrested by Cooney’s call and the remarks about the bull in the car and about the train from the west. This was a momentary distraction which excused the failure to discover the approach of the engine in time to avoid the injury. Piper v. O., M. db St. P. R. Go. 77 Wis. 247; Bower v. O., M. c& St. P. R. Oo. 61 id. 457, 461; Winstanley v. O., M. <& St. P. R. Oo. 72 id. 375; Butler v. M. <& St. P. R. Oo. 28 id. 487; Phillips v. M. & KT. R. Oo. 77 id. 349; Winchell v. Abbot, id. 371; Ward v. O., St. P., M. <& O. R. Oo. 85 id. 601; Kane v. H. O. R. Oo. 128 U. S. 91; Kellogg v. H. T. O. & H. R. R. Oo. 79 N. T. 72, 77; Oremer v. Portland, 36 Wis. 92, 98.</p> <p>They argued, among other things, that the act of 1891 was an amendment or revision of sec. 1809, E. S. The two acts are m pond materia. The word “ villages ” having a definite meaning, viz.: “ incorporated villages,” in sec. 1809, should have the same meaning in the act of 1891, unless- some other meaning is definitely expressed. Potter’s Dwarris, Statutes, 189,191; State ex rel. Bergenthal v. Bergenthal, 72 Wis. 314; State ex rel. Rochester v. Raei/ne Oo. 70 id. 543; Smith v. Smith, 19 id. 522; BucR staff v. PLammille, 14 id. 77; State ex rel. AtCy Gen. v. Mess-more, id. 115.</p>

<p> Sale of chattels: Acceptance of note of third person. </p> <p>Where, at the time of the acceptance of goods sold on trial, the vendor accepts the negotiable note of a third person for the price, the presumption is that such note is taken in payment.</p>

<p>Appeal from a judgment of the circuit court for Sheboy-gan county: N. S. GilsoN, Circuit Judge.</p> <p>On the 6th day of October, 1892, the defendant, Jacob Imig, was indebted in severalty to the following fourteen persons: Leopold Gutsoh, Ghcwies Imig, Julia Imig, Adorn. Imig, Louis Gutsoh, Charles S. Weisse, Otto J. Gutsoh, Ha/ns Gutsoh, Henry Imig, Louis Oxberger, John Balzer, Jr., Augusta Breehtel, Henry W. EaTJt,, and John Stoohdyke, all being his relatives or personal friends. The sums due to such persons respectively amounted in the aggregate to $9,936. He had other creditors, including plaintiffs, and the amount of all his indebtedness largely exceeded the value of his entire property. He was in fact absolutely insolvent, and with the full knowledge of such insolvency on the part of the said fourteen creditors, or of the person or persons who acted for tbem in the transaction, a chattel mortgage was made by him to such creditors to secure their several claims, covering all his property, consisting of a stock of boots and shoes and some book accounts. The mortgage contained all the usual provisions common to chattel mortgages, and provided as follows: “ In case the mortgagees or any of them at any time deem the said property or the said debts or either of them insecure, they or either of them are hereby authorized to take possession of the mortgaged property or any part thereof, and to sell the same, and to apply the proceeds as provided.”</p> <p>At the time of the giving of the mortgage it was agreed between the mortgagor and the mortgagees present and those absent, through the person authorized or who assumed to act for them, that one of such mortgagees should take immediate possession of the property for the benefit of all of them, and apply the same under the terms of the mortgage ; the purpose being to pay the secured claims m full, if the proceeds should be sufficient for that purpose, otherwise fro rata, and, if there was more than enough, then that the other creditors should have the balance. Several of the mortgagees were neither present nor had any knowledge of the transaction. Henry W. Kalk, one of the mortgagees, immediately after the execution of the mortgage, took possession of the property pursuant to the provisions thereof and the contemporaneous verbal agreement referred to, and thereby became trustee for the creditors named therein.</p> <p>Soon after the making of the first mortgage, and on the same day, defendant Imig gave to Charles L. Zsehetzsche, who was a creditor in the sum of $4,617, a second mortgage on the property, to secure the payment of such indebtedness. Zsehetzsehe took the security with full knowledge of his debtor’s insolvency and of the facts in regard to the first mortgage, and constituted Kalk his agent to handle the property in trust for him, subject to such first mortgage. Soon after the making of the second mortgage, and on the next day, defendant Imig gave a third mortgage to Niles T. Stickney, who was also a creditor. Stickney received his security with full knowledge of his debtor’s insolvency and of the facts in regard to the prior mortgages, and immediately constituted Kalk his agent to hold and administer the property in trust for him, subject to the rights of such prior mortgagees.</p> <p>Appellants were creditors to the amount of $1,323.25. They sued to recover the same, and garnished all the mortgagees. Judgment was rendered in their'favor against the principal defendant for $1,452.76, and in favor of the garnishees for costs. From the judgment in the garnishment proceedings this appeal was taken.</p> <p>argued, among other things, that an attempted voluntary assignment may be in the form of a chattel mortgage or any other writing, in case it provides for a trust, a trustee, a creditor, and a cestui gue trust. Norton v. Kearney, 10 Wis. 443; Page v. Smith, 24 id. 368; Winner v. Noyt, 66 id. 227; Maxwell v. Simonton, 81 id. 635; Fuller <& Fuller Go. v. McHenry, 83 id. 573; Northern Nat. Bank v. Weed, 86 id. 212; McOown v. Bussell, 84 id. 122.</p> <p>They contended, inter alia, that the evidence does not bring the case within the authorities relied upon by the appellants, but on the contrary brings it clearly within the rule laid down in Wachter v. Famachon, 62 Wis. 117; Anstedt v. Bentley, 61 id. 629; Landauer v. Yietor, 69 id. 434; Menzeshei/mer v. Kennedy, 75 id. 411; Bank of River Falls v. German Am. Ins. Go. 72 id. 535; Oribb v. Hibba/rd, S., B. & Go. 77 id. 199; Greene <& B. Go. v. Remington, 72 id. 648; Peninsular 8. Go. v. Sachet, 74 id. 526; Noyes v. Qvale, 70 id. 224; Michelstetter v. Weiner, 82 id. 298; Ohcett v. Rosenthal, 100 Micb. 193. See, also, Armstrong v. Gooh, 95 Mich. 257; Pierce v. Johnson, 93 id. 125; Warren v. Dwyer, 91 id. 414; Sheldon v. Mcmn, 85 id. 265; Warner v. Littlefield, 89 id. 329; Fitzgerald v. McOandlish, id. 400; Hyde v. Shank, 77 id. 517; Gore v. Ray, 73 id. 385; American W. Go. v. Schofield B. Go. 89 id. 15; Bank of Montreal v. J. H. Potts S. & L. Go. 93 id. 342; Kendall v. Bishop, 76 id. 634.</p>

Clementsoh, Circuit Judge. This action was commenced to recover damages for obstructing a highway, and to perpetually enjoin the defendant from further obstructing 'or interfering with travel on said highway. The answer denied all liability, and also denied that the loom in quo was a public highway.

ClemeNtsost, Circuit Judge. Personal injuries. The testimony is not preserved by a bill of exceptions. At the close of the testimony the following statement of facts was made by the circuit judge to the jury. “ In the year 1830, Bracken, Irvine, and Ansley, proprietors of the land, platted Irvine’s addition to tbe then village of Mineral Point.

<p> Pleading: Denials and admissions: Notice of injury from defective Iviglv-way: Clerical error: Evidence: Disallowance of claim against town: Burden of proof. </p> <p>1. In an answer a denial of “each and every allegation, statement, matter, fact, and thing in said complaint contained, and not hereinafter admitted,” will be restricted to matters not expressly referred to or attempted to he covered by the specific allegations of the answer.</p> <p>2. In an action against a town for injuries from a defective bridge, where the complaint alleges seasonable service of a sufficient notice of the injury, a statement in the answer that “defendant admits that a notice of injury was some time served upon the-chairman of the defendant, but it now cannot state the nature of the notice or the date of it or the time it was served,” operates as-an admission of the allegation of the complaint.</p> <p>3. A clerical error in the notice of an injury from a defective bridge, whereby such notice stated that “the breaking of the bridge was due to its insufficiency, no rotten timber being used in its construction,” was not misleading and did not render the notice insufficient.</p> <p>4. The person who wrote the notice of injury being out of the state, a letter-press copy was introduced by plaintiff, and testimony tending to show its identity with the notice served on the town was received from a witness who had seen the notice written and copied in the letter-book and who had made the service, and also-from a witness who had read the notice served. No other copy had been made, and the original was presumably in defendant’s-possession. Held, that such testimony was not objectionable on the ground that it was not the best evidence.</p> <p>5. In an action against a town upon a claim filed with the clerk pursuant to sec. 824, E. S., the plaintiff need not prove the disallowance of the claim, the burden of x>roving allowance being on the1 town.</p>

<p>Appeal- from a judgment of tbe circuit court for Juneau county: A. V. Newman, Circuit Judge.</p> <p>This is an action for tbe specific performance of a contract for the sale of real estate, and to set aside a deed made to tbe defendant Johnson with knowledge of such contract. Sheldon Eanney, who bad written authority from defendant Hill, tbe owner of certain lands, to sell the same for $175, negotiated with plaintiff in regard to such a sale, with tbe result that be received from tbe latter an offer of that sum therefor. Thereupon Eanney by letter communicated such offer to Hill. Thereafter Hill, by letter written to tbe former, accepted tbe offer and agreed to forward tbe deed. Eanney then communicated such acceptance to plaintiff, who thereupon paid to tbe former $10 on tbe contract, and, by authority of tbe agent, entered into possession of tbe land pursuant thereto. Subsequently, Johnson, with knowledge of tbe facts, purchased tbe land from Hill and obtained a deed therefor. .</p> <p>To the point that the memorandum was sufficient, they cited 8 Am. & Eng. Ency. of Law, 710-713, 115, 716; Kuhn v. Brown, 1 Hun, 244; Drury v. TToung, 58 Md. 546, 42 Am. Rep. 343; Allen v. Bermet, 3 Taunt. 169; Tufts v. Plymouth G. M. Go. 14 Allen, 407; Argus Go. v. Albany, 55 N. Y. 495.</p>

<p>Appeal from a judgment of the circuit court for Monroe county: A. W. NewmaN, Circuit Judge.</p> <p>On January 6, 1892, W. E. Coats & Co., of Sparta, were indebted to the plaintiff, James B. Canterbury, of La Crosse, in the sum of $2,250 or thereabouts. On that day the plaintiff made bis draft, of which the following is a copy: “ La Crosse, Wis., Jan. 6,1892. Pay to the order of State Bank, $700.10 Seven Hundred and 70-100 Dollars, with exchange, value received, and charge to the account of James B. Canterbury. To W. E. Coats & Co., Sparta, Wis.” Thereupon the plaintiff discounted that draft at the State Bank of La Crosse, and that bank indorsed thereon, “ Pay Batik of Sparta or order for collection account of State Bank of La Crosse,” and thereupon sent the draft by letter to the defendant. The draft was received by the defendant in the forenoon of January 7, 1892. W. E. Coats & Co. then had an account with the defendant bank, which was then overdrawn. W. E.Coats & Co. then accepted the draft, and requested the defendant to pay the same. The defendant then made its draft on the Atlas National Bank of Chicago, in favor of J. M. Holley, cashier of the State Bank of La Crosse, for $700.70, and inclosed the same in a letter, of which the following is a copy: “ Sparta, Wis., Jan. 7,1892. J. M. Holley, Esq., La Crosse, Wis.— Dear Sir: Tour favor of the 6th is received, with the stated inclosures. I inclose our draft on Chicago for $700.70 in payment of (Raft on W. R. Coats db Co. Eespectfully yours, E. H. GaNeield, Cashier,” — and posted the same about half-past 4 o’clock iu the afternoon, of January 7, 1892, and entered the plaintiff’s draft as paid on the books of the defendant. The defendant, having ascertained that W. E. Coats & Co. had failed, attempted.to get the letter containing the draft back out of the postoffice, but found it had gone to La Crosse. By telephoning the defendant succeeded in getting the letter and draft out of the postoiffce at La Crosse, and the next morning destroyed the draft and the letter, and erased all entries respecting the payment of the draft in defendant’s books, and protested the plaintiff’s draft for nonpayment, and returned it to the. State Bank of La Crosse, and that bank thereupon assigned to the plaintiff its cause of action against the defendant by reason of the facts stated.</p> <p>Upon these facts the plaintiff brings this action to recover the value of the draft so taken from the postoffice. At the close of the testimony the court directed a verdict in favor of plaintiff and against the defendant for the amount of that draft and interest. Upon a motion for a new trial the court directed judgment in favor of the defendant, notwithstanding the verdict. Erom such judgment, entered accordingly, the plaintiff appeals.</p> <p>They argued, among other things, that there was a delivery of the draft to the State Bank beyond the power of the defendant to recall. Johnson <o. Sharp, 31 Ohio St. 611, 618; McKinney v. Rhodes, 5 Watts, 343; 1 Randolph, Comm. Paper, §218 and cases cited; Tiedeman, Comm. Paper, § 34a; IT. S. v. Jackson, 29 Eed. Rep. 503; U. 8. v. Jones, 31 id. 725; Williams v. Galt, 95 Ill. 172. Coats & Co., the purchasers of the draft, ordered it sent to the State Bank, and there was to be no other delivery to them than there actually was. If Coats & Co. had purchased merchandise of the defendant on credit and ordered the defendant to forward to the State Bank, after the delivery to the postoffice or to a common carrier for conveyance there would have been no right of stoppage in transitu. 1 Parsons, Cont. 606 and note n; Rowley v. Bigelow, 12 Pick. 307, 313; Stubbs v. Lund, 7 Mass. 453, 456; Tread/well v. Aydlett, 9 Ileisk. 388; Owyn v. R. & D. R. Go. 85 N. C. 429; Eaton v. Goolt, 32 Yt. 58.</p> <p>They cited, as to the right of stoppage in transitu, 2 Kent, Comm. 542, 543; 1 Parsons, Cont. (6th ed.), 600; Muller v. Rondir, 55 N. Y. 325; 5 Wait, Act. & Def. 612; Wiseman v. Vamderputt, 2 Yern. 203; Smith v. Bowles, 2 Esp. 578.</p>

B. Wyman, Circuit Judge. This was an application by tbe appellant, by petition in tbe matter of tbe voluntary assignment of Mason A. Tbayer, to bave bis claim adjudged a preferred claim and paid in full. Tbe appellant was county treasurer of Monroe county; Tbe respondent is tbe assignee for tbe benefit of creditors of Mason A. Tbayer. Tbayer was a banker at Sparta. Tbe appellant kept some of tbe county’s moneys in Tbayer’s bank, as a general deposit.

<p>Appeal from a judgment of the circuit court for Monroe county: O. B. WyMAN, Circuit Judge.</p> <p>This was an action in justice’s court. November 3, 1893. the cause was adjourned by consent of parties to November 30, 1893. This day was, on November 3, 1893, by the president, and on November 18,1893, by the governor, appointed as a day for public thanksgiving. On that day the parties were before the justice, who, of his own motion, continued the cause until the next day, December 1st. On that day the defendants appeared to raise the point that the case was out of court, and took no further part in it. The plaintiff proceeded and took judgment. The defendants took the case to the circuit court by certiorari. It was there argued and disposed of on its merits. The justice’s judgment was reversed, and the plaintiff appeals. Here it is urged, for the first time, that the petition for the writ of certiorcvri was defectively verified, and that it does not appear that the writ itself was allowed by any judge.</p> <p>contended, inter alia,, that the justice did not lose jurisdiction by the adjournment to the day which was afterwards named as Thanksgiving. Lampe v. Mcmni/ng, 38 Wis. 673; A. G. Spaulding <& Bros, v. Bernhard, 76 Wis. 371; Glenn v. Eddy, 51 N. J. Law,, 255; Perkins v. Jones, 28 Wis. 243; Smith, v. Bahr, 62 id. 244; Ha/r-rington v. Smith, 28 id. 43; Green v. Walker, 73 id. 548, 551; Weil v. Geier, 61 id. 414; Smith v. Ihling,. 47 Mich. 611; People v. Odell, 1 Dak. 197; State v. Picketts, 74 N. C. 187; Williams v. Yerne, 68 Tex. 414; Kinney v. Emery, 37 N. J. Eq. 339; McEvoy v. School Dist. 38 id. 420; State v. Sorenson, 32 Minn. 118; Bice v. Mead, 22 How. Pr. 445; 29 Am. Law Reg. 137; In re Worthi/ngton, 7 Biss. 457;. Polin v. State, 14 Neb. 540. The justice could do no less and no more than he did do on November 30, to prevent a failure of justice; and it seems upon authority that he had the power to do so much. R. S. sec. 3571; State v. Gust,. 70 Wis. 634; Baizer v. Baseh, 28 id. 269; Stromberg v. Es-terly, 62 id. 632; Healy v. Kneeland, 48 id. 497; Bryant, Wis. Justice, § 256.</p>

<p> Mortgages: Foreclosure: Reversal of order setting aside sale: Lien on redemption money for costs: Writ of assistance. </p> <p>1. A foreclosure sale was set aside, and money to redeem tlie premises was deposited by the mortgagor with the clerk of the court. After-wards, on appeal, the order setting aside the sale was reversed and costs were awarded to the mortgagee, who thereupon notified the clerk that he claimed a lien upon the money so deposited; but the clerk nevertheless, on application, returned the money to the mortgagor. The mortgagee then moved for an order that his costs and damages be paid out of the money deposited. Held, that this motion was properly denied, the money having already been rightfully withdrawn.</p> <p>2. A writ of assistance to put the purchaser at a foreclosure sale in possession of the premises will not be issued before the sale has been confirmed.</p>

Croix •county: E. 13. Btody, Circuit Judge. Glover owned a farm, which he leased to one Sweet. The lease contains this provision: “Said first party [Glover] agrees to furnish such money as shall be necessary to carry on the said farm during the coming season or any subsequent season.” There was also a proviso that Sweet should pay interest on all money advanced to him under this proviso of the lease. Sweet employed the respondent upon the farm.

<p>Appeal from a judgment of the circuit court for St. Croix county: E. B. Bundy, Circuit Judge.</p> <p>This was an action to recover money deposited by the plaintiff with the defendant, upon substantially the following facts: On November 17, 1890, the plaintiff deposited $500 with the defendant, receiving a certificate by which that snm was “ payable to the order of himself, six months after date, with interest at the rate of five per cent, per an-num, for six months only, on return of this certificate properly indorsed; . . . not subject to check.” The particulars of the certificate were entered on the stub in the book from which the certificate was taken. May 13, 1891, the plaintiff surrendered this certificate, obtaining $100, and $12.50 for accrued interest, receiving another certificate, in the same terms, for $400. December 21, 1891, the plaintiff returned this certificate, and obtained $100, and $7.50 for accrued, interest, and another certificate, in like terms as the first, but for $200 only. March 31, 1892; the plaintiff obtained $100 on this certificate, which was indorsed on its face, and he held the same until November 16, 1892, when he called for the amount due him, and received only $100, and $2.50 for accrued interest. He then claimed for the first time that there was $100 more due him than was called for by .the last certificate. It appeared that on the 7th of September, 1891, there had been $100 paid and indorsed on the $400 certificate and on its corresponding stub, and that such payment was entered on the blotter and ledger of the bank under the same date. The controversy was in relation to this payment.</p> <p>The defendant pleaded and insisted that upon the evidence the plaintiff was estopped from recovering by presenting the $400 certificate with the payment qf $100 indorsed on it under date of September 7, 1891, and by receiving therefor, December 21, 1891, the $100 and accrued interest, with the new certificate for only $200, and by his not making any claim for more until November 16, 1892, about fourteen months after the $100 was paid and indorsed on, the. $400 certificate. The evidence was clear that this $100 was paid September 7,1891, but the defendant was unable to produce any evidence to show to whom it was paid, and the banker transacting the business was unable to testify that he paid it to the plaintiff or to his wife, but said that he paid it to the plaintiff or to some one who satisfied him that he was authorized to receive it. The testimony tended to show that some unauthorized person had obtained possession of the $40.0 certificate, and had drawn $100 thereon, but who it was, or when, or by what means the certificate was obtained, there was no evidence to show.</p> <p>The plaintiff testified that he could neither read nor write; that he could count and make very simple -computations in his head — could not read figures; that he never drew the $100 in question; and that on the day the indorsement bore date he was not at Baldwin, but was at work all day on a building many miles distant, and in this fact he was corroborated by another witness; that when he got each of the certificates he took it home and gave it to his wife, who kept it for him; that he never authorized any one to get this money; and that he trusted- to the bank to keep the matter straight. ITis wife testified that she did not draw the money; that she was never at the bank, and that the certificates never went out of her custody except when she gave them to her husband; that she kept the certificates in' an envelope in a bureau drawer in her bedroom, and that it was locked most of the time; that she may have let her daughter look at it, but she did not take it, and never gave at to her to draw money with, and never gave it to any person except her husband, and that she never read the certifi•cate; that she could read writing a little — could make it out very poorly. The daughter testified that she never took the certificate, and never drew any money on it, and never .-gave it to any one else, and was never at Baldwin until after the certificate was entirely taken up. She corroborated her mother as to the place and manner of keeping the certificate.</p> <p>The defendant asked the court to direct a verdict in its favor, claiming that the act of keeping the certificate with this indorsement was an estoppel; but'the court refused to so instruct the j ury. The court left it to the jury to say wheth er the money had been paid; that a payment, in order to be valid, must be made to the plaintiff or to some one authorized to receive the money; that if any one not authorized .got possession of the certificate, without negligence. on the part of the plaintiff and without authority from him, payment to such person, though in good faith, would not be a good payment. Eeferring to the claim of defendant’s counsel that the plaintiff Avas estopped, the court'said: “If the plaintiff read the last certificate, or read the certificates taken with the last one and the indorsements, and knew the ■contents of them, then the fact that he slept upon his rights and remained silent on the question so long would be a circumstance, and possibly a strong circumstance, tending to show this claim for $100 is not made in good faith and not founded on truth. But you must take into consideration the further fact that he says that he could not read or write, and that he never examined these papers, never read them, and did not know what was in them.' The wife testifies that she was a poor reader, and she never read them, and there is no evidence contradicting this fact, that plaintiff cannot read. You will take that into consideration, of course, as tending to explain and break the force of his holding them .so long without saying anything about the discrepancy.”</p> <p>There was a A'erdict and judgment for the plaintiff, and the defendant appealed.</p> <p>They contended, inter . alia, that plaintiff is conclusively presumed to have known the contents of the certificate, and is now estopped to deny that the payment of September 7,1891, was neither made to nor authorized by him. 2 Pomeroy, Eq. Jur. § 818; Sanger v. Dun, 47 Wis. 615, 620; Herbst v. Lowe, 65 id. 316, 321;. Wilcox v. GonUnental Ins. Go. 85 id. 193, 197; Germania F. Ins. Go. v. M. <& G. B. Go. 72 N. T. 90; Hill v. 8., B. <Sr H. T. B. Go. 73 id. 351. Apart from this conclusive presumption, the law enjoined upon plaintiff tbe duty to examine the' certificate when it was given to him and to object if it did not properly state the amount of his deposit remaining in the bank. Failing in that duty, he cannot now hold the defendant for the amount. Leather M. Bank v. Morgan, 117 U. S. 96.</p>

<p> Setoffs: Voluntary assignment: Banks and banking. </p> <p>1. Equity will not deny in assignment proceedings a right of setoff expressly given by statute.</p> <p>3. The rights of a debtor of an assigning banker as to setoffs under sec. 4358, R. S., become fixed at the time the assignment is completed, and not at the time when the bank closes its doors.</p> <p>3. A debtor of a banker may purchase his certificates of deposit and. become the owner thereof in good faith, within the meaning of sec. 4358, R. S., although prior to such purchase thé bank has closed, its doors.</p>

<p>Appeal from a judgment of tbe circuit court for St. Croix county: E. B. BuNdy, Circuit Judge;-</p> <p>This action is brought to recover upon a policy of life insurance issued by the defendant company upon' the life of one Emil II. C. Rasurasen. The policy was issued December 20, 1890, and required the payment of an annual premium of $365 on October 28th of each year for twenty years, and contained a provision that the policy should become void if the annual premium was not paid when due, and all previous payments should be forfeited. The policy also contained a provision to the effect that no agent, could extend the time for paying a premium, or waive any forfeiture, and that this power should only be exercised by the president, vice president, and actuary of the company. The first two annual premiums were paid, but the premium which fell due October 28, 1892, was not paid when due.</p> <p>Prior to the 28th of October, 1890, and ever since that time, the defendant has maintained at Milwaukee, Wis., an office called the “ Wisconsin. Branch Office,” in which were certain agents, whose duties were to superintend the local agents in certain portions of the state of Wisconsin; to receive applications for insurance, and forward them for approval to the home office at New York City; to collect premiums on policies in force in the territory under its jurisdiction; to deliver policies issued by the home office; and to transact all business with policy holders within its territory, subject to the approval of the home office at New York City. After January 1, 1893, one Buckner was the agent of the defendant in charge of the books, business, and correspondence of the defendant conducted at said “ Wisconsin Branch Office,” and one Candee was an employee of the company at Milwaukee, and assisted in the transaction of business with the defendant-in the Milwaukee office, under the title of “ agency director.”</p> <p>In the month of April, 1893, one Borchsenius, acting on behalf of Emil K. 0. Rasmusen, visited the Wisconsin branch office aforesaid, and offered to pay to said Buckner the premium on said policy which had become due October 28, 1892. Upon the making of this offer, Buckner stated to Borchsenius that in order to reinstate said policy it would be necessary to pay five per cent, interest upon the premium from October 28, 1892, and also to produce a letter from Dr. J. B. Patrick, who was the regularly appointed physician of the company at the village of Baldwin, Wis. On the 3d of May, 1893, Emil K. C. Rasmusen sent to the Milwaukee office a draft for $312.86, being the October premium, with five per cent, interest thereon, and inclosed at the same time a letter from Dr. Patrick to the effect that “ Mr. Rasmusen appears to be in as good health as I have seen him in the past three or four years that I have known him.” On the 5th of May, 1893, the agent Buckner transmitted to the home office a letter announcing the receipt of Rasmusen’s remittance, and inclosing Dr. Patrick’s statement, and Requesting tbe return of tbe renewal receipt. On tbe same day .Buckner acknowledged tbe receipt to Bas-musen of tbe draft and Dr. Patrick’s statement, and stating that tbe bealtb statement had been forwarded to tbe home office, and that upon tbe return of tbe renewal receipt it would be sent to Basmusen. On tbe 11th day of May, 1893, a letter was sent from tbe home office to the Wisconsin branch office, signed by tbe president of tbe company, stating that the company would entertain a proposition for tbe reinstatement of Basmusen’s policy upon tbe receipt of tbe health certificate after a medical examination by Dr. Patrick. On tbe 15th day of May, 1893, Buckner wrote to Bas-musen, stating that tbe company required a medical examination by Dr. Patrick, and inclosing a blank for such examination, and requesting him to have tbe same made at an early date. The draft which Basmusen bad sent to tbe Wisconsin office May 3d had been placed to tbe credit of tbe policy account of Basmusen, and to bis personal credit, on tbe books of tbe Milwaukee agency. On the 18th day of May, 1893, on receipt of tbe letter last named, Basmusen sent a letter to tbe Milwaukee office of tbe defendant company, dated at Biver Palls, Wis., where he then was staying, that he did not expect there would be so much red tape in tbe matter; that Mr. Borcbsenius informed him that it would only be necessary to have Dr. Patrick write a letter in regard to bis bealtb, and send such letter with tbe premium and interest at five per cent. Tbe letter then says: “ I believe I have fully met your requirements, and unless you send receipt for premium paid you will kindly return amount of $372.86. Yours, E. BashuseN.” This letter urns received at tbe Milwaukee office in due course of mail, and on tbe 22d day of May Buckner transmitted it to tbe home office with a letter of bis own in which be advised tbe company to accept tbe premium on tbe letter from Dr. Bat-rick already forwarded. This last-named letter "was received at the home office May 24, 1893, and was immediately answered by a letter dated on that date, and received at the Milwaukee branch office May 26, 1893, in which the company say that they required a health certificate, and that, if this was explained to Mr. Easmusen so that he understood it, they Avere sure there Avould be no trouble. ■ No letter avas sent, either by the Milwaukee branch office or the home office, to Mr. Easmusen after the receipt of his letter of May 18th, already mentioned; but on the 26th day of May, 1893, Oandee Avrote a letter to Dr. Patrick, stating the substance of the letter of the 24th inst. from the home office, inclosing a blank health certificate, and asking him if he could consistently fill in and sign a-blank and return it. Dr. Patrick did not reply to • this letter, and on the 30th day of May Easmusen died, and the evidence1 tends to show that he died of consumption.</p> <p>The case Avas tried by the court, jury being waived, and upon the foregoing facts the court held that the company had Avaived the forfeiture and reinstated the policy; and judgment for the plaintiffs Avas rendered upon the policy, from Avhich the defendant has appealed.</p> <p>They contended, inter alia, that there is no indication anyAvhere that the defendant intended to revive and reneAv this contract except after the medical examination had been made and the health certificate furnished. The minds of the parties did not meet, and there Avas concealment of material facts. The defendant. Avas proceeding on the theory that it Avas negotiating with a person whose life could be insured, Avhile that person was not only not insurable but must have knoAvn that he had but a short time to live. See Donald v. Mut. D. F. L. Asso. 132 N. Y. 378; Paine v. Pao. Mut. L. Ins. Go. 2 O. C. A. 459; Pusby v. JST. A. L. Ins. Go. 40 Md. 572; Harris v. Equitable I. Ass. Soo. 3 Hun, 724, 730; Kolgers v. Gua/rdian I. Ins. Co. 58 Barb. 185; Gatoir v. Am. L. Ins. <& T. Go. 33 N. J. Law, 487; Pritchard v. M. & T. Mut. L. Mss. Soc. 3 C. B. (N. S.), 622; Finley v. Lycoming Go. Mut. Ins. Go. 30 Pa. St. 311, 314; Security Ins. Go. v. Fay, 22-Mach.. 467; Allen v. Yt. Mut. I. Ins. Go. 12 Yt. 366, 372; Forbes v. Agawam Mut. F. Ins. Co. 9 Cush. 470, 473; Wheaton v. FT. JB. c& M. Ins. Go. -76 Cal. 415, 428; Benneclce v. Ins. Go. 105 U. S. 355; Piedmont <& A. L. Ins. Co. m Ewing, 92 id. 377, 381; Insurance Go. v. Young's Adm'r, 23 Wall. 85, 106. A waiver never occurs unless intended, or where the act ought in equity to estop the party from denying it. Diehl v. Adams Go. Mut. Ins. Go. 58 Pa. St. 443, 452; Beatty v. Lycomi/ng Co. Mut. Ins. Go. 66 id. 9, 17; Everett v. London Ins. Go. 142 id. 332, 344; Robertson v. Metropolitan L. Ins. Go. 88 N. Y. 541, 545. “ To establish a waiver of a forfeiture the proof must show a distinct recognition of the validity of the policy, after knowledge of the forfeiture by the person by whom it is claimed the forfeiture was waived.” Weed v. London de L. F. Ins. Go. 116 N. Y. 106, 118.</p> <p>To the point that the conduct of the defendant amounted to a waiver of the forfeiture, they cited 2 May, Ins. § 507; Richards, Ins. § 63; Bliss, Life Ins. § 188; Wood, Fire Ins. §§ 87, 496; Appleton I. Go. v. British Am. Ass. Go. 46 Wis. 23, 33; Webster v. Phmnix Ins. Go. 36 id. 67, 72; FT. W. I. Go. v. AEtma Ins. Go. 26 id. 78, 81; Joliffe v. Madison M. Ins. Go. 39 id. Ill; Erdmann v. Mut. Ins. Go. 44 id. 376; True v. Bankers' L. Asso. 78 id. 287; Roclt/wéll v. Mut. L. Ins. Go. 20 id. 335; 8. O. 21 id. 548; 8. O. 27 id. 372; Titus v. Glens Falls Ins. Go. 81 N. Y. 410, 419; Prentice v. Knickerbocker L. Ins. Go. 77 id. 483, 489; Bailey vlMut. B. Asso. 71 Iowa, 689; Tobin v. Western Mut. A. Soc. 72 id. 261; Yiele v. Germ.a/rda Ins. Go. 26 id. 9, 54; Phmnix Ins. Go. v. Lansing, 15 Neb. 494, 497; Potter v. 0. <& L. Mut. Ins. Go. 5 Hill, 147, 150; Georgia M. M. L. Ins. Co. v. Gibson, 52 Ga. 640, 642; Smith v. St. Paul F. <& M. Ins. Go. 3 Dak. 80, 83; Benson v. Ottawa A. Ins. Go. 42 U. C. Q. B. 282, 287; Kelly v. St. .Louis M. I. Ins. Go. 3 Mo. App. 554, 558; Sumerset Go. M. F. Ins. Go. v. May, 2 Weekly Notes Gas. 43; Moore v. N. 7. B. F. Ins. Go. 29 N. Y. St. Eep. 768; Insurcmoe Co. v. Norton, 96 U. S. 234; Hanley v. Life Asso. 69 Mo. 380; Sheldon v. At-lantia F. (& M. Ins. Go. 26 N. Y. 460.</p>

<p>Appeal from a judgment of the circuit court for Pierce county: E. B. BuNdy, Circuit Judge.</p> <p>This action was brought against Alfred J. Cross and J. B. Goss, as copartners under the firm name of J. B. Goss & Co., upon a promissory note signed by that name, dated April 19, 1893, payable on demand to the plaintiff, with interest, etc., charging, in substance, that the defendant J. B. Goss was the ostensible and active managing member of a firm doing a milling business at River Falls, Wis., and that the said firm was composed of the said J. B. Goss and Alfred j. Goss; that the plaintiff believed, when she took the said note, that the consideration for it was money loaned to the former firm of J. I). Putnam & Co., consisting'of J. D. Putnam and the defendant Alfred J. Goss, tvhich firm was dissolvéd November 3, 1891, when the firm of J. B. Goss & Co. was formed, and the property and effects of the former firm were transferred to it, and it assumed and agreed to pay the debts of said former firm; that the plaintiff, at the request of the said J. B. Goss & Co., surrendered the note of J. D. Putnam & Co. for said loan, and, relying on the promise and credit of the said firm of J. B. Goss & Co., took the note sued on in lieu thereof.</p> <p>The defendant J. B. Goss made default, and the defendant Alfred J. Goss answered, admitting the allegations in respect to the existence and dissolution of the firm of J. D. Putnam & Co., but denying that any firm or partnership of J. B. Goss & Co. was formed, or that he was ever a member of any such firm, or that the property and effects of the firm of J. D. Putnam & Co. were ever transferred to the firm of J. B. Goss & Co., or that it assumed or agreed to pay the debts of the former firm; and he alleged that the business carried on under the name of J. B. Goss & Co. was the private business of the said J. B. Goss, in which he, the defendant Alfred J. Goss, had no interest.</p> <p>At the trial by the court it was found, among other things: (1) That prior to November 5,1891, the, defendant Alfred J. Goss and J. X). Putnam were doing a milling business together as copartners under the firm name of J. D„ Putnam & Co. (2) That on that day the partnership was dissolved, and the said Putnam and the defendant Alfred J. Goss signed and caused to be published, at the place of said business, a notice as follows, to wit:</p> <p>“ Notice of Dissolution.</p> <p>“Notice is hereby given that the copartnership formerly existing between the undersigned, J. D. Putnam and Alfred J. Goss, under the firm name of J. D. Putnam & Co., is this day dissolved by mutual consent, and the business will in the future be carried on under the firm name of J. B. Goss & Co., who will settle all claims of the late partnership. J. D. PutNAm,</p> <p>“November 8, 1891. Alebed J. Goss.”</p> <p>(3) That it was then understood that the partnership property should be conveyed to the defendant J. B. Goss, and that he should carry on the said business, and pay the debts of. the firm or J. D. Putnam & Co., doing business under the. name of J. B. Goss & Oo.; but by mistake the property was conveyed to the defendant Alfred J.. Goss, who, pursuant to said agreement, afterwards conveyed it to the defendant J. B. Goss, and he carried on. the business under the name of J. B. Goss & Co., having no partner. That there was in fact no partnership existing between the defendants, and Alfred J. Gass had no interest in the profits of the business of J. B. Goss & Go. as partner. (4) That the note sued on was executed in the manner and for the consideration set forth in the complaint, and the plaintiff, when she took the same, understood and believed that J. B. Goss & Co. was a firm consisting of J. B. Goss and Alfred J. Goss, and that there was such a holding out by the said Alfred J. Goss as to induce her to so believe and to act upon such belief. As a conclusion of law the court held that the plaintiff was entitled to judgment against both defendants for the amount of the note and costs.</p> <p>Aside from the proof of the signing and the publishing of the notice as before stated, it appeared.in evidence that the plaintiff saw the published notiee in the Kiver Falls Journal, and she testified that she believed that the defendant Alfred J. Goss still continued in the business, but she had never heard any one say so; that she believed that J. B. Goss and Alfred J. Goss continued the business.</p> <p>To the point that the appellant had not in any way so held himself out or allowed others to hold him out as a partner as to warrant any reasonable person in dealing with the firm of J. E. Goss - & Go. on the faith of his being a partner therein, they cited 17 Am. & Eng.'Ency. of Law, 882; 1 Lindley, Partn. 47; 1 Bates, Partn. §§ 90,'99; Neiosome v. Coles, 2 Campb. 617; Wood v. Dulc,e of Argyll, 6 Man. & G. 928; Edmundson <o. Thompson, 2 Post. & F. 564; Potter v. Greene, 9 Gray, 309; Pitten-house v. Leigh, 57 Miss. 697.</p>

On January 21, 1890, one Charles Dowie, a resident of St. Croix county, died intestate. On April 2,1890, one Silas Staples was appointed Ms administrator, and qualified as such.

<p> Appeal: Stay of proceedings: Recall of execution: Release of levy. </p> <p>1. The perfecting of an appeal from a judgment and giving of the undertakings prescribed in secs. 3049, 3053, R. S., after levy of execution on personal property, operate to stay all further proceedings on the judgment, but .do not ipso facto recall the execution or release the levy.</p> <p>2. The supreme court has inherent power in such case to recall the execution and release the levy, upon terms.</p>

M. Webb, Circuit Judge. Action, for money had and received. The facts are that ■one Wigderson, in June, 1892, was a merchant, in business at Waupaca, having a stock of goods worth at least $7,800, and ivas then insolvent, being indebted to an amount exceeding $13,000, among which debts was a debt to the appellant, Ha/mbwrg&r, of about $2,200, a debt to the plaintiff, Sommers, ■of $300, and a debt .to one Robinson of $250.

B. Bundy, Circuit Judge. On the 5th day of November, 1891, Alfred J. Goss and J. D. Putnam were, and had been continuously for some years prior thereto, doing a milling business as copartners under the firm name of J. I). Putnam & Co. at River Palls, Pierce county, Wisconsin.

G. SiebecKER, Circuit Judge. The defendant John Runner was state treasurer; the defendant the Hekla Fire Insurance Company of Madison,, Wisconsin, is a domestic corporation; the defendants the Reída Fire Insurance Company of S1.

0. Siebeoker, Circuit Judge. This was an action on an alleged contract of insurance. It was alleged in the complaint that the defendant company, on August 10, 18S9, insured the plaintiff’s husband, G-.

G. Siebecker, Circuit Judge. The plaintiffs brought this action to restrain the defendant city of Beedsburg from executing a contract for the construction of a waterworks and electric lighting plant, and from issuing bonds or incurring indebtedness to pay for such construction, upon the ground that the common council had varied the plan for such works adopted by the vote of the electors of the city, and that such city has no power under its charter to borrow money and issue…

Appeals from a judgment of tbe circuit court for Columbia county: R. G-. SiebecKer, Circuit Judge. On July 5, 1813, Stephen Madden, of Portage, made his will, containing the following provisions: “ 1.

G. SiebecKER, Circuit Judge. This action was brought for the recovery of damages su§-tained by the plaintiff from an injury received while in the employ of the defendant and engaged in the line of his duty as brakeman, and by reason of its alleged failure to provide a reasonably safe and suitable track and roadbed upon which he might perform his duties; his left arm having been caught between the deadwoods or bumpers of two oars which he was attempting to couple together,…

<p>Appeal from a judgment of the circuit court for Dane county: E. G. SiebecKee, Circuit Judge.</p> <p>This action was brought to recover loss sustained by the plaintiff under a standard insurance policy of the state of Wisconsin, issued by defendant.</p> <p>The written portion of the policy reads as follows: “ Joseph Faust: Four hundred dollars ($400) on his two-story frame, shingle-roof building and one-story frame addition thereto, occupied as a furniture store and repaw shop, situated on the corner of East and Eiver streets, village of Christiana, Dane county, Wisconsin. Four hundred dollars ($400) on the stock of furniture, upholstery goods, and other merchandise, not more hazardous, usual to a retail furniture store, while contained therein.”</p> <p>The printed portion of the policy contained, among other things: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void . . . if (any %isage or custom, of trade or manufacture to the contra/ry notwithstanding) there be kept, used, or allowed on the above-described premises benzine . . .” The policy also contained in the printed portion a provision requiring immediate notice in writing to the company in case of loss, and sworn proofs of loss within sixty days after date-of fire; also the following: “ The company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating tó the appraisal or' to any examination herein provided for.” “ This policy is made and accepted .subject to the foregoing stipulations and conditions, together with such other provisions, agreements, and conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as .to ■such provisions and conditions no officer, agent, or' representative shall have such power, or be deemed or held ■to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or added hereto; nor shall any privilege or permission affecting' the insurance under this policy exist or be claimed by the insured unless .so written or attached.”</p> <p>The answer alleged a breach of the condition prohibiting the keeping or use of benzine on- the premises; also the failure on plaintiff’s part to furnish proofs of loss as required by the policy. The evidence shows that the assured, at the time the policy was issued, and at the time of the fire, had a small amount of benzine on the premises, kept solely for use in the repair shop, and that it was necessary for such use. The evidence also shows that notice of the loss was given to the company the next morning after the fire; that isoon thereafter the company’s adjuster visited the scene and was furnished by appellant with a list of the goods burned; that he then discovered that benzine had been kept on the premises, and thereupon notified the plaintiff that such fact rendered the policy void; that he took away with him the list of the property destroyed, furnished by plaintiff, and the •same has ever since been retained by him or some one for the company. From that time on the defendant has refused to communicate with plaintiff with respect to the loss.</p> <p>The trial court granted defendant’s motion for nonsuit upon the ground that the contract of insurance was rendered void by a violation of the provision prohibiting the keeping or use of benzine on the premises, and judgment was rendered accordingly, from which the plaintiff appeals.</p> <p>They argued, among other things, that this policy on a furniture store and a repair shop, and on the stock of furniture, goods, and, other, merchandise usual to a retail furniture store, insured all articles ordinarily and necessarily used in -that business, including even those articles prohibited in other parts of the policy. Any other construction of the policy would make it necessary to enumerate in the written part of the policy all the articles insured, or prevent the insured from carrying on his lawful business. Hall v. Ins. Oo.ofH. A. 58 N. Y. 292; JHarper v. Hew York. G. Ins. Oo. 22 id. 441; JMJears v. Humboldt Ins. Go. 92 Pa. St. 15, 3.7 Am. Pep. 647; Archer v. Merchants\ & M. Ins. Go. 43 Mo. 434; Yiele v. Germania Ins. Go. 26 Iowa, 9; Goblins v. Farrmille Ins. & B. Oo. 79 N. C. 279, 28 Am. Eep. 322; Morse v. Bxffalo F. da M. Ins. Oo. 30 Wis. 534; Louns-bury v. Protection Ins. Go. 8 Conn. 459; Paffarty v. Hew Brunswick F. Ins. Go. 18 N. J. Law, 480; Leggett v. AEtna Ins. Oo. 10 Rich. Law, 202; Hiagara F. Ins. Go. v. JDe Graff,. 12 Mich. 124; Citizens’ Ins. Oo. v. McLaughlin, 53 Pa.-St.. 485; Moore v. Protection Ins Oo. 29 Me. 97; Steinbach v. La Fayette F. Ins. Oo. 54 N. Y. 90; Phoenix Ins. Go. v. Taylor, 5 Minn. 492; • Bryant v. Poughkeepsie Mut. Ins. Go. 17' N. Y. 200; Oomm. v. Hide <& L. Ins. Go. 112 Mass. 136; Pindar v. Kings Go. F. Ins. Go. 36 N. Y.. 648. If there is any inconsistency or conflict between the printed and the. written clauses, the latter must preyail. Harper v. Hew York 0. Ins. Oo. 22 N. Y. 441; Benedict v. Ocean Ins. Go. 31 id. 389. By keeping the lists or proofs of loss which .the plaintiff furnished, and by the defense of-forfeiture which is now urged, the defendant is estopped from urging that there was not substantial proof of loss. ZAelke v. London Mss. Corp. 64 Wis. 442; Palmer v. Si. Paul F. & LI. Ins. Co. 44 id. 201; Penier v. Dwelling. House Ins. Co. 74 id. 89; Badger v. Phoenix Ins. Co. 49 id. 396; Fillips v. Putnam F. Ins. Co. 28 id. 472; Yanldrk v. Citizens' Ins. Co. 79 id. 627; Ycmgmdertaelen v. Phoenix Ins. Co. 82 id. 112.</p>

<p> Promissory notes: Duress: Bestoration of consideration. </p> <p>1. A note procured by duress is not void but only voidable, and in an action thereon the duress is not a defense if the maker retains a valuable consideration received by him therefor.</p> <p>2. So where, in consideration of a note alleged to have been given under duress, the payee surrendered to the maker prior valid notes executed by the latter for the same amount, the duress is not a defense to an action on the new note if the maker retains the notes so surrendered. But if those notes have been lost or destroyed without his agency by mere accident, it may be that the duress will be a defense, provided the maker does all he can to put the payee in as good condition as he was before the note in suit was given.</p> <p>3. Where, in an action bn a note, the defendant alleged that it-was given by her under duress of threats of criminal prosecution of her husband on the charge of forging notes deposited by him as collateral security for other notes executed to the plaintiff bank, which last-mentioned notes were surrendered when the note in suit was given, it was error to charge the jury that the fact how the notes surrendered by the bank were signed or executed does not control the question of defendant’s liability, and that, if such notes were lost, destroyed, or converted without any fault or act on the part of defendant, “ it matters not whether they were signed by her husband in his name, or in her name by him as her authorized attorney.”</p>

<p> Foreign receivers: Action in this state: Oomity: Mutual insurance company: Insolvency: Assessment by decree of foreign court: Conclusiveness. </p> <p>1. A foreign receiver of a foreign mutual insurance company may maintain in the courts of this state an action against a member of the company resident here to recover an assessment upon a premium note which was a part of the assets of the company in the hands of the receiver when the assessment was made.</p> <p>3. Under sec. 1, art. IV, Const, of U. S., a decree of a court of competent jurisdiction in another state making an assessment upon the premium notes of a, mutual insurance company in the hands of a receiver, being conclusive in that state upon all members of the company unless directly attacked, is conclusive in this state in an action to recover such assessment. Great W. Tel. Co. v. Burnham, 79 Wis. 47, distinguished and limited.</p>

<p>' Appeal from a judgment of the circuit court for Marquette county; R..G-. Siebeokee, . Circuit Judge.</p> <p>The plaintiff brought his action praying for the reforma-lion and specific performance of a certain written contract, •dated July 9, 1892, for the conveyance of a certain farm in Marquette county by him to the defendant P. H. Peterson, and the correction and reformation of' a subsequent deed of «conveyance of said farm, dated July 14, 1892, made in pursuance of said contract, by inserting in said contract and ■■deed, as a part of the description of the lands therein de•scribed, the words, “except the crops now standing and .growing thereon,” which, it was alleged, had been omitted therefrom through mistake, inadvertence, and neglect of the plaintiff’s agent, and without his fault, knowledge, or consent ; and judgment was claimed for the value of said crops, they having been taken and converted by the defendants to their own use.</p> <p>The defendants denied the allegations of the complaint upon which the plaintiff based his right to relief, and the defendant P. H. Peterson set up a counterclaim against the ■plaintiff, in substance: That he' bought the farm or lands of the plaintiff, described in the complaint, July 9, 1892, for the sum of $8,000. That he was not acquainted with the lands, and had never been there, and was not acquainted with the people, and knew nothing of the value of farms in that vicinity; stating that he would and did rely upon what the plaintiff said as to the said lands, or their value, as the plaintiff well knew. That the plaintiff falsely and fraudulently represented to" the defendant that said lands were worth $8,000, whereas in truth they were not worth more than $2,500; that all the lands in that vicinity were worth, and would sell for, $28.50 per acre,— the sum for which the plaintiff was selling the lands in question,— whereas such lands would not, as plaintiff well knew, sell for more than $5 per acre; that said farm was well fenced; ■that the soil was heavy clay soil, and very productive; that there were over 150 acres under the plow, and seventy-five acres of meadow, and that the marsh on the farm was the best in that'vicinity, .and that he-had cut-every year 100 tons of hay on'said farm; and that said farm was only four-miles from Packwaukee, the nearest railroad depot, and only five or six miles from Moñtello, the county seat. That alii such allegations were false, and made with intent to deceive,, and did deceive,-the defendant.- It is alleged wherein and-to what extent said representations were- false, and that, relying upon the truth of them, he was misled into buying-the farm and paying $8,000 for it; and the defendant claimed $5,500 damages.-</p> <p>In reply the plaintiff alleged that, before the defendant purchased- the premises, he visited- and examined them, and,, upon such examination, accepted the plaintiff’s proposition and concluded the trade.</p> <p>It appeared* beyond dispute, that the plaintiff conveyed the farm-to the defendant, and paid him $277, in exchange-for twenty-twó lots in the town of G-reenfield, near Milwaukee, subject to a- mortgage on the same for $6,375. The court found against the plaintiff upon the issue as to the-equitable cause of action set out in the complaint, and,, among other things, that there was no agreement between the parties, before the execution of the deed of the farm, by which the crops growing on the said lands were to be reserved ; that there was no omission by mistake from the deed,, such as alleged, but that the deed correctly represents the-agreement between the parties; and that the plaintiff was-not entitled to the relief prayed for.</p> <p>The jury found a special verdict upon the counterclaim, in substance: (1) The defendant was not acquainted with the-farm, nor with the country in that vicinity. (2) He did not know the'value of the farm. (3) The plaintiff made false- and fraudulent representations to the defendant as to the-value of the farm. (4) He made false and fraudulent representations as to the amount of hay produced on the farm.. (5) The false .and fraudulent representations were made-while making the contract of sale, and to induce the sale, and with the expectation and intent that the defendant would rely on them. (6) The defendant believed them. (7) The defendant relied upon them, and was thereby in- ■ duced to enter into the contract for .the purchase of the farm. The eighth question was: “ Ought the defendant, in the exercise of ordinary care and prudence, as an ordinarily intelligent man,, under the circumstances shown in this case,, to' have relied upon the statements and representations made' to him, and have accepted such statements and representations as true, without doing more than the-testimony in this-case satisfies you that he did do to ascertain the truth or falsity of such statements and representations % Ans. bio.” (9) The defendant was damaged by the false and fraudulent-representations made by the plaintiff in purchasing the farm, (10) If the defendant was entitled to judgment, they assessed his damages at ,$4,000, and interest from May, 1893.</p> <p>The evidence was such as to justify the court in submitting the matter embraced in the eighth question to the jury,, and they were fairly and correctly instructed in the law on that subject. The evidence appears to be sufficient to support the finding. The defendant did not except to the admission of any of the evidence, nor to the instructions of the court, nor did he move to set aside the verdict, in whole or in part, but moved thereon for judgment against the plaintiff for the damages and costs; and judgment was given accordingly and denying all equitable relief under the complaint. The plaintiff moved for judgment in his favor on the verdict, but this was denied, and he appealed from the entire judgment.</p>

The plaintiffs bought of the defendant a furnace for heating their building. The furnace was warranted to work satisfactorily. It did not work satisfactorily. The plaintiffs brought this action to recover damages for the breach of the warranty. There was a jury trial, resulting in verdict and judgment for the plaintiffs, from which the defendant appeals. Error is alleged in the charge of the court as to the measure of damages.

<p>Appeal from a judgment of the circuit court for Outa-gamie county: John Goodland, Circuit Judge.</p> <p>Plaintiff, while traveling in a top buggy, in the night time, on a street of the defendant city, ran onto an obstruction consisting of a mound of earth placed therein by defendant Keseberg, and was injured. He brought this action ■ to recover compensation for such injury. The obstruction was created by dumping into the street the earth taken out by defendant 'Keseberg in excavating a cellar on ber premises. Whether it was properly guarded, so as not to render the street defective and unsafe for public travel by night, was the principal question in controversy. The evidence shows that a red light had been customarily placed on the mound of earth by defendant. Keseberg to warn travelers of the danger, and strongly tends to show that it was placed there on the night in question; but whether it was in position at the instant of the accident is a controverted fact, though the evidence strongly tends to show that it was in position a short time before.</p> <p>The defendants asked the court to submit the following questions on the subject of the existence of the light at the place and time of the accident: “(1) Was a lighted lantern maintained on the pile of dirt during the night time, up to the night of the accident? (2) Was a lighted lantern placed on the pile of dirt on the evening of the accident ? ”</p> <p>The court submitted to the jury the following questions: “(1) Was the plaintiff injured by being thrown from the wagon at the time and place mentioned in the complaint ? (2) Was such injury caused by the defective condition of the street at the time and place in question for travel upon and over the same? (3) Was such defective condition of the street in question caused by the wrong, default, or negligence of defendant Dorothea Keseberg ? (4) Had such defect or obstruction existed for such a length of time prior to the injury that the city of Sheboygcm ought to have known of the same and guarded against it? (5) Was the plaintiff, at the time of the accident, using ordinary care and diligence in traveling along and over the said street? (6) What amount of damage has the plaintiff sustained by reason of the injury ? ”</p> <p>The court charged the jury, in substance, in respect to the second question, that if there was not a light so placed and of such a nature as to furnish warning to travelers of the danger at the time plaintiff was injwred, then the street was defective. The court charged the jury, in substance, in respect to the third question, that if the street was defective at the time of the accident such defective condition is chargeable to want of ordinary care on the part of the defendant Keseberg. In respect to damages the court gave the following instruction: “ He is entitled to full compensation for the bodily and mental pain and suffering which he has endured since the happening of the accident down to the present, and which he may have to endure hereafter.”</p> <p>The jury answered all the questions “Yes,” except the last, which refers to the subject of damages, and in answer to that awarded $21,800 damages. A motion to set aside the verdict and for a new trial was made and overruled, and proper exceptions were duly taken to raise the questions considered on this appeal.</p> <p>To the point that the instructions of the court in submitting the second and third questions ignored the fact that the light might have been sufficient and properly placed on the obstruction by Mrs. Keseberg on the night of the accident, and removed by a wrongdoer without her knowledge, they cited Seward ¶. Milford, 21 Wis. 485; Klait v. Milwaukee, 53 id. 196; Gartright v. Belmont, 58 id. 310; Doherty n. Waltham, 4 Gray, 596; Weirs v. Jones Co. 80 Iowa, 351; Theissen v. Belle Plains, 81 id. 118; Mullen v. Rutland, 55 Yt. 77; Jones, Neg. of Mun. Corp. §§ 96, 110.</p>

<p>Appeal from a judgment of the superior court of Douglas county: Chaeles Smith, Judge.</p> <p>There is no bill of exceptions. The facts are recited in the judgment. The defendant King Q-. Staqiles owned a quantity of pine sawlogs, which were upon skidways near the village of Iron Eiver, and within eighty rods of the bank of Iron river. While they were in that situation they were bought by the plaintiff at a foreclosure sale under a chattel mortgage. The defendants afterwards, and without the plaintiff’s consent, carried the logs away from, that position, to a sawmill near the village of Iron Eiver,.and had them manufactured into lumber. The jury found the value of the logs to be $409.78. The plaintiff moved for judgment for double the value as found by the jury, under sep. 4449, S. & E. Ann. Stats. This was denied, and judgment was rendered for the plaintiff for the sum. so found by the jury. From this judgment the plaintiff appeals.</p> <p>Counsel for the appellant contended that the logs were both near the Icmlt of the river and oil land adjoinim-g it. 16 Am. & Eng. Enov. of Law, 368; Manis v. State, 3 Heist. 318; Insley v. Shepard, 31 Eed. Rep. 869; Fall River I. Works Co. v. 0. C. (& F. R. R. Co. 8 Allen, 221; Webst. Diet. Neab; Id. ADJACENT.</p>

<p>Appeal from an order of the superior court'o'f Douglas county.; CuaRles Smith, Judge.</p> <p>. The appeal is from an order, sustaining a demurrer to the complaint. The facts will sufficiently appear in the opinion:</p> <p>inter alia, that the complaint does not allege that the sheriff or his deputy had any knowledge that plaintiff owned or.claimed to own the property, and fails to allege a demand made by plaintiff oh the sheriff or his sureties, and demand is necessary. Nay v. Orooíc, 1 Pin. 546; FranMin v.. Kirby, 25 Wis. 498; Iowa Go. v. Vivian, 31 id. 217; Carrington v. Bayley, 43 id. 507; Yose & Go. v. SticJcneyj S Minn. "75; Osborn v. Bell,o Denio, 370. The sheriff is dead, and the mere talcing of said property would not render his estate liable unless the estate in his hands was benefited by the tort. Gravath v. Pl/ympton, 13 Mass, 454; People v. 'Gibbs, 9 Wend. 29; Osborn v. Pell, 5 Denio, 370; 8. G. 49 Am. Deo. 275; IIcmMy v. Trott, 1 Cowp. 372; Wilbur v. Gilmore, 21 Pick. 252; Powell v. Pees, 7 Adol. & El. 426; Foster v. Stewart, 3 Maulé & S. 191. At common law an action for trespass, trover, and conversion dies with the person. 3 Chitty, Bl. 302; Woodward v. G. & JV. W. P. Go. 23 Wis. 400; Gravath v. Plympton,-l3 Mass. 454; Osborn v. Bell, 5 Denio, 370. When the principal cause of action fails, security must also fail, and a sheriff’s bond is simply a security collateral to the cause of action. If the cause of action against the sheriff is gone, then no action could be maintained against the sureties. Pyus v. Gruble, 31 Kan. 767; Auchampaugh v. Schmidt, 70 Ioiva, 642; State v. Plaice, 2 Ohio St. 147; State v. Gonway, 18 Ohio, 234; Dawes v. Shed, 15 Mass. 6;' Welfare v. Thompson, 83 N. C. 276; Mount v. LaJceman, 21 Ohio St. 643; Bishop v. McGil-lis, 82 Wis. 120</p>

<p>Appeal from an order of the superior eourt of Douglas county: Charles Smith, Judge.</p> <p>They contended that the superior court has no jurisdiction outside of Douglas county. Sec. 2, art. YII, Const.; Kentzler v. C-, M. <& St. P. B. Co. 47 Wis. 643; Bugbee v. Lombard) 88 id. 272; Atkins v. Fraker, 32 id. 510; People <?» rel. Beebe v. Evans, 18 Ill. 361; Supervisors v. Young, 31 id. 194; Meyer v. Kcdkmann, 6 Cal. 582; Landers v. Staten Lsland B. Co. 53 N, Y. 450, The act creating the superior court gives it practically the same jurisdiction as the circuit court. The limitation placed thereon is unreasonable and indicates an evasion simply of the constitution. The act, therefore, being contrary to sec, 2, art. YII, Const., is void.</p>

<p> Master and servant: Assumption of obvious risks. </p> <p>An employee of mature years, even though inexperienced and uninstructed in the particular business, will be presumed to have known and assumed the risk of injury incident to obvious defects or dangers (in this case the unguarded condition of projecting circular saws forming part of the machine at which the employee was set to work, and an accumulation of sawdust, etc., on the floor), although they existed in consequence of the negligence or default of the employer.</p>

The appeal is from an order oyerruling a general demurrer to the. complaint. The defendants are the receivers of the Northern Pacific Railroad Company.

<p>Appeal from a judgment of the circuit court for Douglas county: R. D. Makshall, Circuit Judge.</p> <p>This is an action to enforce a laborer’s lien upon a quantity of logs, under secs. 8329 et seq., S. & B. Ann. Stats. The complaint alleges that the plaintiff made a contract April 4, 1890, with one Spaulding to drive a certain quantity of logs for a stated price, and that he began the work April 14th, and completed it June 7th, of the same year, and has not been paid therefor; that Spaulding died May 6, 1890, and that the defendant is the duly appointed and acting administrator of his estate; that on June 30, 1890, the plaintiff duly filed his claim for a lien on said logs as provided by law. Judgment is demanded against the defendant for $624.30, besides interest and costs.</p> <p>A general demurrer was interposed by the defendant, and overruled. No answer was served, and judgment was rendered for the plaintiff upon default, adjudging that the plaintiff recover of the defendant, as administrator, $424.71 and costs, and that the same is a lien upon the logs described in the complaint. Prom this judgment the defendant appealed.</p> <p>The cause was submitted for the appellant on the brief of Ohaiwp Oreen, in person, and for the respondent on that of Reed <& Reed.</p> <p>To the point that an action will not lie to enforce a statutory lien unless the .claim for the lien is filed during the lifetime of the debtor, appellant cited Robbs v. Enearl, 4 Wis. 451; Quimby v. Sloan, 2 Abb. Pr. 93; Crystal v. Flannelly, 2 E. D. Smith, 583; Overton, Liens, § 567; Nott, Mechanics’ Lien Laws, 109-111.</p> <p>To the point that a demurrer is an answer within the meaning of the word as used in sec. 2886, R. S., counsel for the respondent cited Sowell v. Howell, 15 Wis. 55; Hew Jersey v. Hew York, 6 Pet. 323; Steele v. Moss, 69 Wis. 498; Ta-rbox v. Adams Go. 34 id. 561.</p>

D. Marshall, Circuit Judge. This is a garnishment proceeding. In June, 1892, the main defendant, the West Duluth Furnace Company, was operating a blast furnace at West Duluth, Minnesota, and was manufacturing pig iron and selling the same in large quantities to the garnishee defendant. October 9,1892, the furnace company owed the plaintiff more than $24,000 for coke sold.

D. Mabshall, Circuit Judge. This action was brought under sec. 8835, E. S., to reach and subject to sale certain real estate described in the complaint, to the payment of the plaintiff and others, creditors, of Hiram S. Allen, deceased; and it is alleged in substance that, being wholly insolvent and indebted to the plaintiff and others, the said H. S. Allen, on June 5, .1883, purchased from certain parties therein named certain real estate specified in Chippewa county, and…

North Third street, which is sixty feet between the curb lines, runs east and west in West Superior. The defendant •owns and operates an electric railway along that street. On September 1,1893, between 4 and 5 o’clock in the afternoon, the plaintiff was riding west, with Mrs. Jones and Mrs. Little, in a covered phaeton, with the top up and no curtains •on the sides, upon the south side of the track on said street, between Lamborn and Tower avenues.

This is an appeal from an order overruling defendant’s demurrer to plaintiff’s complaint.

Soott SioaN, Circuit Judge. The plaintiff in error was arrested on a complaint which charged him with the crime of perjury, committed during the trial of a cause in the county court of Waukesha county on the 7th day of October, 1892. Being brought before the magistrate who issued the warrant, he waived examination and was held to answer in the circuit court.

Gr. Siebeceer, Circuit Judge. The information in this case was filed at the May term, 1894, of the circuit court for Crawford county, charging the plaintiff in error with the crime of rape.

ClemeNtsoN, Circuit Judge.. The plaintiff in error was tried and convicted on the second count of the information, of which the following is a copy: “ [Yenue, title, etc.] “ Count 1.— I, G. E. Whitman, district attorney for said county, hereby inform the court that on the 7 th day of July, A. D. 1894, at Said county, William T. Jackson did with force and arms, in and upon one Mildreth Daniels, a female of the age of ten years or more, to wit, of the age of fourteen years,…

<p> Divorce: Division of estate: Excessive allowance. </p> <p>A husband’s available property amounted to about $15,000, and consisted chiefly of an interest in real estate inherited from his father and incumbered with the mother’s dower estate. A judgment against him for divorce, providing that he pay §7,000 to his wife as a final division of his estate, and that he pay her §200 annually for the support of their ohildren during minority, is modified by reducing to §5,000 the amount allowed to the wife as her share of the estate, and making said sum payable in instalments.</p>

<p>Appeal from a judgment of the circuit court for Dane county: Geo. Clementsob, Judge.</p> <p>This is an appeal from the judgment of the circuit court for Dane county upon common-law certiorcvri, setting aside a tax levied by the appellants, as commissioners of drainage district No. 1 of Dane county, pursuant to ch. 142, Laws of 1893. The appellants were appointed, by the circuit court of Dane county, drainage commissioners, under the provisions of ch. 383, Laws of 1889. The object of this chapter was to provide for the drainage and reclamation of a large quantity of overflowed land in Dane county, and it became the duty of the commissioners to make certain preliminary surveys, and, after hearing the parties interested, to determine whether the health and welfare of the public would be promoted by the consummation of the drainage scheme provided in said chapter, and in case they decided favorably it became their duty to make and adopt plans and specifications of the work, and let contracts for the same, and levy special assessments upon the lands reclaimed, to pay for the work. The hearing was had before the commissioners pursuant to this law, and on October 3, 1890, they made an order deciding in favor of the drainage scheme. Thereafter the commissioners incurred considerable expenses, amounting to nearly $24,000, issued and sold bonds to pa,y part of these expenses, and on the 25th of November, 1891, filed with the county clerk of Dane county an order and list of lands, and declared the list of lands so made to constitute the drainage district. This order and list of lands was made before the commissioners had determined upon any plans, specifications, or estimates, as required by the act of 1889. Subsequently all of the proceedings of the commissioners after the preliminary order of October, 1890, were set aside as void by the circuit court for Monroe county, because the commissioners had included dry upland in the district, and had classified the land according to acreage, and had attempted to change the limits of the drainage district. This judgment was. rendered August 1, 1893, upon the writ of certiorari sued out by one Hudson.</p> <p>In 1893 the legislature of "Wisconsin passed an act to provide for the payment of the expenses of the Dane county drainage commission, and to repeal, ch. 383, Laws of 1889, which act was published May 1, 1893, and constitutes chapter 142 of the Laws of 1893. This act provided for the ascertainment of the expenses and liabilities incurred by the drainage commissioners, and attempted to authorize the commissioners to levy a uniform tax upon all the real property within the limits of the district defined by the commissioners in the order of November 25, 1891, and upon personal property of the owners of said real property, to pay said expenses. It appears that said expenses and liabilities were ascertained under the law, and were found to be $23,584.75, and that the drainage commissioners then proceeded to levy a uniform tax as provided by said ch. 142, to pay said expenses, whereupon the relators, who are the owners of real estate within the drainage district, sued out their writ of certiora/ri. ...</p> <p>The case was tried in the circuit court upon the return to the writ, upon which the facts appeared substantially as above stated, and the circuit court adjudged all of the proceedings of the commissioners, in attempting to levy a tax under ch. 142 aforesaid, unauthorized and void. From this judgment the commissioners have appealed to this court.</p> <p>■inter alia, that the circuit court upon certiorari has no jurisdiction to determine the constitutionality of any legislative act of a body possessing legislative powers. State ex rel. Wiesmam/n v. Kemen, 61 Wis. 494, 496; In re Langley, 37 id. 377; In re Wilson, 32 Minn. 145; People ex rel. Savage v. Board of Health of H. Y. 20 How. Pr. 458. See, also, Wood, Mandamus (2d ed.), 148-149; In re Mi. Morris Square, 2 Hill, 14; Duggen v. MeGruder, 12 Am. Dec. 527, and note; People ex rel. Moore v. Hew York, 5 Barb. 43; People ex rel. Onderdonh v. Queens Go. 1 Hill, 195; People cx rel. Agnew v. Nexo Yorh, 2 id. 9; People ex rel. Corwin v. Walter, 68 N. T. 403; Pobinson v. Sacramento, 16 Cal. 208; People ex rel. McDonald v. Bush, 40 id. 344; Thompson v. Multnomah Go. 2 Oreg. 34; Loche v. Lexington, 122 Mass. 290.</p>

<p> Railroads: Taking of land: Separate conveyance of right to compensation. </p> <p>1. Where a railroad has been constructed over lands with the express or tacit consent of the owner thereof, his right to obtain compensation, under sec. 1852, E. S., is a property right which remains in and may be transferred by him after he has conveyed all of the lands by warranty deed.</p> <p>2. Where, after such lands were so conveyed, the former owner also assigned to one of the grantees all his right to compensation from the railroad company, the amount which such grantee is entitled to recover is not diminished by the fact that he afterwards platted and sold a portion of the lands.</p>

ArPEAL from a judgment of the circuit court for Douglas county: R. D. Mabshall, Circuit Judge. Mandarnos. In October, 1894, the board of supervisors of Douglas county passed a resolution making the office of sheriff of said county a salaried office, under ch. 53, Laws of 1881 (sec. 694a, S. & B. Ann. Stats.).

<p>Appeal from a judgment of the circuit court for Douglas county: R. D. Marshall, Circuit Judge.</p> <p>The action is replevin. One August Ruhnke, a saloon keeper, borrowed money from the plaintiff, and to secure its repayment gave him a bill of sale of his stock in trade, furniture, and fixtures. Plaintiff gave Ruhnke a lease of the property, and left it in his possession. The defendants, who were the sheriff and deputy sheriff of Douglas county, took the property from Euhnke, under attachments against him. The plaintiff replevied from the sheriff. There was a verdict for the plaintiff, a motion by the defendants for a new trial denied, and judgment for the plaintiff, from which this appeal is taken by the administrator of the estate of the sheriff.</p>

D. Marshall, Circuit Judge. This action was for the recovery of the sum of $4,000 and interest at ten per cent, per annum from January 9, 1892, for which the defendant Charles Lagro had given the plaintiff his promissory note October 10, 1891, and upon the several guaranty of payment of the same, waiving demand and notice of nonpayment, of the defendants Franh A. Ross and H. 0. Walseth. The defendant Lagro did not answer.

<p> Counterclaim: Landlord and tenant. </p> <p>In replevin by a lessor to obtain possession of bis lessee’s furniture, under a provision of the lease authorizing it to be taken and sold to satisfy unpaid rent, the lessee may counterclaim for damages for .breach of the lessor’s covenant, in the same lease, to keep the •demised premises in repair.</p>

<p>Appeal from an order of the superior court of Douglas county: Charles Smith, Judge.</p>

<p> Accident insurance: Construction of policy: “Immediately.” </p> <p>1. In an accident policy insuring against loss of time resulting from bodily injury effected through external, violent, and accidental means, which should, “ independently' of all other causes, immediately and wholly disable ” the insured from transacting any and every kind of business pertaining to his occupation, the word “immediately” does not mean “proximately,” in the sense of causation, but expresses proximity of time with the injury, and is used in the sense of “presently, without lapse of time or material delay.”</p> <p>2. In construing a policy of insurance, some particular operation, effect, and meaning should be assigned to each sentence, phrase, and word used, and when this may fairly and properly be done no ■ part of the language used can be rejected as superfluous or unmeaning. . ‘</p> <p>3. The rule that where reasonably intelligent men would honestly differ as to the meaning of the policy the doubt should be resolved against the insurer, cannot apply where the doubt is raised by dis- • regarding the foregoing rule of construction.</p>

<p> Master and servant: Death caused by incompetenay of fellow-servant: Assumption of risk: Means of knowledge. </p> <p>Where it is not shown that an employee had actual knowledge of the incompetency and carelessness of a co-employee, or that, under the circumstances which necessarily attended the performance of his duties, he could have observed the saíne, it cannot be held that he was chargeable with knowledge of such incompetency and carelessness so as to preclude a recovery for his death caused thereby.</p>

D. Maeshall, Circuit JTudge. This is an action-brought by the administrator of the estate of Adelbert Strader, a young man twenty years of age, who was killed in the defendant’s railway yard at West Superior by being run oyer by two freight cars, while he was at work as a switchman in said yard.

B. Bundy, Judge. This is an action to recover money paid under a contract claimed by plaintiff to be void under the statute of frauds-.

<p> Municipal corporations: Salaries: Adoption of part of general laxo: Repealing clause: Ordinance void in part: Costs. </p> <p>1. The payment of salaries to the mayor and aldermen of cities (except those of the first class) organized under the general law (ch. 326, Laws of 1889) was prohibited by sec. 262 of that act. That section was repealed by sec. 73 of an amendatory act, ch. 312, Laws of 1893. Sec. 72 of the act of 1893 provides that “any city now organized under a special charter may adopt the provisions of any special chapter, section, or subdivision of any section of this act.” Meld, that a city whose charter prohibited the payment of salaries to the mayor, aldermen, and certain other officers could not adopt the repealing clause of said sec. 73 in place of the section in its charter containing said prohibition, and thus pave the way for granting salaries to such officers.</p> <p>2. If the void part of a municipal ordinance is the compensation for or the inducement to the valid portion, so that, looking at the whole ordinance, it is reasonably clear that the common council would not have enacted the valid portion alone, the whole ordinance will be held inoperative and void.</p> <p>3. The allowance of costs to the plaintiff in an action to restrain a city and its officers from paying certain salaries was a matter in the discretion of the trial court.</p>

<p>The action is for the foreclosure of a mortgage upon an hotel property in the city of Superior. The defendant resides at the city of Duluth in the state of Minnesota, and is frequently at the city of Superior. On the 11th day of Sep-tembei’, 1894, at the city of Superior, personal service of the summons and complaint in the action was made upon him. On September 29, 1894, he served notice of a motion to set aside the service of the summons and complaint on the ground that his presence in the state, at the time of the service, had been procured by the fraudulent contrivance of the plaintiíf; that he was decoyed within the state for the purpose of obtaining such service. The motion was heard upon affidavits presented by either side. It was supported faintly by affidavits which tended remotely and by uncertain inference to show the fraud claimed. But the defendant’s affidavits did not show that any such fraudulent contrivance was the cause of his presence in Superior on the day of the service. The motion was resisted by affidavits which denied fully, and without equivocation, all artifice to procure his presence* within the state. The court denied the motion. The defendant appeals.</p> <p>They cited Townsend v. Smith, 41 Wis. 623; Ilsley v. Nichols, 12 Pick. 210, 276; Williams v. Reed, 29 N. J. Law, 385; Runla^p As Go. v. Oody, 31 Iowa, 260; Stem v. Volkenhuysen, 96 Eng. O. L. 64; Blair v. Tuttle, 5 Eed. Eep. 394; Qhuhbuck v. Cleveland, 37 Minn. 466.</p>

<p>Appeals from a judgment of the superior court of Milwaukee county; B. U. Austin, Judge.</p> <p>This is an action brought to recover damages for injuries to the person of the plaintiff, caused by the falling of a brick from the top of the fourth story of a partially completed building in the city of Milwaukee, owned by the defendant the Hil/uxmkee Builders’ <& Traders’ Exchange. The accident happened on the morning of the 18th of April, 1892. At the time of the accident the defendant exchange was constructing a five-story brick and iron building, and the defendant Neff had contracted with the exchange to build, and was then engaged in building, the masonry of the building, and had completed the walls to the top of the fourth story. The defendants Bangley, who were copartners, had contracted with the exchange to put in place the structural iron for the building. Both Neff and the Bayleys were performing the work undertaken by them under separate and independent contracts with the exchange. Each of said contracts contained a provision that the contractor should well and sufficiently perform and finish his work “under the direction and to the satisfaction of Ferry & Clas, architects, acting- as agents for the owner.” The contracts also contained provisions for the inspection of the woi’k by the architects and their employees. An ordinance of the city of Milwaukee was introduced in evidence, which was in force at the time of the accident, providing in substance that any owner or contractor who should build a building within the fire limits of the city of Milwaukee, abutting upon any public sidewalk, should, after the completion of the first story of the building, cause a passageway to be laid in front of the building, upon the sidewalk, and cause the same to be roofed at a height not less than ten feet, and providing for the punishment for failing to comply with the ordinance.</p> <p>The accident to the plaintiff occurred about 8 o’clock on Monday morning. On the Saturday previous Neff had completed the walls of the building to the top of the fourth story, in readiness for the iron girders to be put in place to support the floor of the fifth story. On leaving work Saturday night Neff's men put canvas upon the walls of the building, with loose bricks thereon to hold it in place. On Monday morning Neff's men were not at work, but the JBayleys were commencing to put the iron girders in place for the fifth story, and hoisting girders and beams to the top of the fourth story by a derrick. The plaintiff resides about a block and a half from the place of the accident, and was thirty years old.' She passed along the sidewalk on Fifth street, opposite the building in question, and went to a drug store on Grand avenue, and a few minutes afterwards she returned, and while passing along the sidewalk, within about six feet of the building, a brick was in some manner caused to fall from the top of the building, and struck her on the head, fracturing the skull and severely injuring her. The plaintiff claims that all the defendants are liable for her injuries, by reason of negligence. The evidence was conflicting-as to whether there were any guards or barriers placed at the north and south ends of the wall, but it was admitted that no roof had been placed over the sidewalk on Eifth street.</p> <p>The jury returned the following special verdict: “ (1) At the time the plaintiff first passed along the sidewalk adjacent to the building on Fifth street, on the -morning of the accident, had the north end of that sidewalk been guarded by due precaution against accident to pedestrians? A. No. (2) At the time the plaintiff first passed along the sidewalk adjacent to the building on Fifth street, on the morning of the accident, was there a barrier across the north end of said sidewalk sufficient to warn pedestrians it was dangerous to pass along said sidewalk? A. No. (3) At the time the plaintiff passed along the sidewalk adjacent to the building on Fifth street, on the morning of the accident, was the south end of said walk guarded by due precaution against" accident to pedestrians? A. No. (4) At the time the plaintiff first passed along the sidewalk adjacent to the building on Fifth street, on the morning of the accident, was there a barrier across the south end of said sidewalk sufficient to warn pedestrians that it was dangerous to pass along said walk? A. No. (5) Was there any plank across the north end of the sidewalk, which was moved by the men at work in hoisting the iron upon said building, before the plaintiff was injured, and before she passed along Fifth street the. first time on that day? A. No. (6) Was the brick which fell from the building and injured the plaintiff displaced from the pier? A. No. (?) Was the brick which fell and injured the plaintiff a loose brick placed on canvas covering the wall or pier? A. Yes. (8) Was the brick which fell and injured the plaintiff caused to fall by the men who .were at work hoisting the iron upon the building? A. No. (9) Were men there employed in the business Of hoisting iron ffpon the building at the time the plaintiff passed along said sidewalk the first time? A. Yes. (10) Was the defendant the Milwaukee Builders' c& Traders' Exchange guilty of any negligence or want -of care which was the proximate cause of the injury to the plaintiff? A. Yes. (11) Was the defendant Maw Neff guilty of any negligence or want of care which was the proximate cause of the injury to the plaintiff? A. Yes. (12) Were the defendants the Bayleys guilty of want of ordinary care which contributed to the injury? A. Yes. (14) If the court shall be of the opinion that plaintiff is entitled to recover, at what sum do you assess her damages? A. $5,000.”</p> <p>Judgment for the plaintiff against all of the defendants was entered, upon the verdict, and they have appealed separately.</p> <p>As to the liability of the defendant exchange, they cited Robbins v. Chicago, 4 Wall. 657; Nxmdhausen v. Bond, 36 Wis, 40; Whitney v. Clifford, 46 id. 146; 1 Shearm. & Redf. Neg. §§ 13,176; McCall v. Chamberlain, 13 Wis. 640, 641; Brusso v. Buffalo, 90 N. Y. 679; Storrs v. Utica, 17 id. 104;-¿7. Paulv. Seitz, 3 Minn. 297; logansportv. Dido, 70 Ind. 65; Detroitv. Corey, 9 Mich. 165; Nawver v. Whalen, 49 Ohio St. 69; Susgue-hcmna Depot v. Simmons, 112 Pa. St. 384; Doncaster Ave. Imp. Co. v. Rhodes, 116 Pa. St. 377; Smith, Neg. 88; Floyd, B Ridings (1st ed.), 124; Ellis v. Sheffield G. C. Co. 2 El. & B. 767; Clark v. Fry, 8 Ohio St. 358; Congreve v. Smith, 18 H. Y. 79, 83; Sutherland, Stat. Oonst. § 443; Famen v. Sellers, 39 La. Ann. 1011; Schwartz v. Gilmore, 45 Ill. 455; Ilomon v. Stanley, 5 Am. Rep. 393; 14 Am. & Eng. Ency. of Law, 832; Bower v. Peate, 1 Q. B. Div. 321; Metheny v. Wolfs, 2 Duvall (Ky.), 137; Jager v. Admns, 123 Mass. 27; Blyth v. Birmingham W. Works, 11 Exch. 781, 784; Ray, Meg. of Imposed Duties, 103; Harper v. Milwaukee, 30 Wis. 365. The ordinance requiring the erection of the covering was valid. Oomm’rs of Easton v. Covey, 74 Md. 262; Sam,ga-món JD. Go. v. Yoimg, 77 Ill. 197; Baumgcvrbner v. Hasty, 50 Am. Rep. 830, and cases cited; Miller v. Valparaiso, 10 Ind. App. 22; Baymond v. Keseberg, 84 Wis. 302, 310,</p>

Scott SloaN, Circuit Judge. The plaintiff is the owner and in possession of 200 acres, of land in the town' of Yernon, Waukesha county, and resides thereon. Said land is bounded on the north by a. quarter section line of section 14. Lying on the north side of said land is a public highway, which was, by order of the-, proper officers of said town, bearing date December 7, 1847,-. duly laid out three rods wide upon said line.

<p> Railroads: Injury causing death of employee: Negligence of fellow-serv-' ■ aht: Construction of statute: ‘'Superintendent:’’ Foreman of re-' pair shops. </p> <p>1. The foreman-of repair shops of a railway company is not a “super-' intendent ” within the meaning of ch. 438, Laws of 1889 (sec. 1816a,, S. & B. Ann. Stats.), which provides that every railroad corporation shall be liable for damages sustained by any employee, without contributory negligence on his part, “ when such damage is Caused by the negligence of any train dispatcher, telegraph operator, superintendent, yard master, conductor or engineer, or of any other employee, who has charge or control of any stationary sig- . ■ nal, target point, block or switch,” — the intent of the statute being to provide a remedy for the negligence of officers and employees' having to do with the movement of trains and cars.</p> <p>35. The foreman of repair shops was merely a fellow-servant of an employee therein while engaged, as a volunteer and outside of the line of his duty as foreman, in assisting such employee to turn the ■ wheels of an engine which was being repaired.</p>

<p>Appeal from an order of the circuit court for Dodge county: A. Scott Sloan, Circuit Judge.</p> <p>This is an appeal from an order of the circuit court for Dodge county, dismissing a motion on the part of the defendant to set aside the service of the summons in the action for want of proper service, with $10 costs to be paid by defendant to the plaintiff. The return of the sheriff of Douglas county upon the summons was that December 31, 1894,. at the city of Superior in said comity, he had “ served the within summons on the within named defendant, the Great Northern Railway Company, by delivering to and leaving with P. L. Clarity, the agent of said company personally, a true and correct copy of summons,” etc. The defendant, by its attorneys, Murphy & Eemington, gave notice to the plaintiff’s attorneys of a motion stating that they “ appeared ¡specially for the Great Northern Railway in the action, for the purpose of the motion only, and that upon affidavits annexed, and upon the summons returned and proceedings therein, we, so specially appearing, shall move on,” etc., “ for an order that the service of the summons be vacated, and the action be dismissed, with costs, for the reason that the summons was not served upon any officer, agent, servant, or employee, or upon any person in any manner a representative, of the Great Northern Railway Company, but, as the fact is, such service was had on one P. L. Clarity, a local freight agent of the Eastern Eailway Company of Minnesota, and not in any manner a representative of the defendant, with the costs of motion.”</p> <p>The affidavits of W. P. Clough, the vice president of the defendant, and of the said Clarity, explicitly and positively sustain the grounds laid in the notice. The affidavits of Michael May, John D. Coleman, and J. E. Malone were read in opposition, tending to show that said Clarity, upon whom the summons was served, was a freight agent of the Eastern Eailway Company of Minnesota, and that he acted and advertised and held himself out to others as a freight agent of the “ Great Northern Eailway Line.” A receipt for freight, signed by said Clarity as agent, or by some clerk acting for him, was an exhibit to the effect that certain freight had been received at West Superior by the Great Northern Eailroad for shipment. It appeared in the reply, from the affidavit of Edmund Twohy, an officer of the Twohy Mercantile Company, that it had been engaged in a general wholesale grocery business at West Superior, and made consignments over the various railroad lines coming to that point, and that for its own convenience in said business it had prepared and printed freight receipts to be given by said several companies, and that the railroad companies' had nothing to do therewith; that the receipt produced was prepared by said company to be used for goods shipped over the Eastern Railway Company of Minnesota, under the impression that the Great Northern Nailway Company ran its line into Superior, and that it was operated under the name of the Eastern Railway Company of Minnesota, and for that reason deponent had said form headed “ G-reat Northern Railroad;” and upon information and belief he stated that the Great Northern Nailway Conypany did not run any line into Superior, but that the Eastern Railway Company, a Minnesota corporation, operates its distinct line of railroad between Superior and St. Paul, and, with other railway corporations, between Superior and the Pacific coast, coming within the scope of the descriptive term of the “ Great. Northern Railway Line.” A further affidavit of the said! Clarity is to the same effect, and that the receipt produced! was not signed by him, but was presented to and signed by the warehouseman of the Eastern Railway Company of Minnesota at West Superior, who had no authority to sign deponent’s name, and that said warehouseman was not a servant, agent, or employee of the defendant company; that the said Eastern Railway Company comes within the descriptive heading of the “Great Northern Railway Line,” but is entirely separate and distinct from the corporation the Great Northern Nailway Company; that the “Great. Northern Railway Line ” is a descriptive term, and signifies a railroad line running from Puget Sound and terminating,, at the east, at Superior and St. Paul, and that the corporation composing one portion of said line, and running between St. Paul and Superior and Duluth, is the Eastern* Eailway Company of Minnesota, which company deponent represents.</p> <p>The defendant appealed from the said order of the circuit court.</p> <p>They contended, inter alia, that if Clarity was an agent for the Great Northern Eailway Line, he was, for the purpose of service, an agent of each of the roads embraced in said line. State v. U. S. Mut. Ago. Asso. 67 Wis. 624; State v. Farmer, 49 id. 459; E. S. sec. 2637; Parish v. Reeve, 63 *Wis. 315; Wioh-ham v. South Shore L. Oo. 89 id. 23. The defendant, by setting forth in his notice that he would move to dismiss the action with costs, ashed affirmative relief and therefore submitted to the jurisdiction of the court. Lland/y v. Insurance Go. 37 Ohio, 366; Lowe v. Strmgham, 14 Wis. 222, 225;. Gcmghey v. Vance, 3 Pin. 275; Thayer v. Rove, 8 Blackf. 567; Gra/ntier v. Roseera/nce, 27 Wis. 488, 492; Alderson vr White, 32 id. 308; Anderson v. Gobwrn, 27 id. 558, 564; Upper Miss. Transp. Go. v. Wh ittaher, 16 id. 220; Blaolc-burn v. Sweet, 38 id. 578.</p>

<p>Appeai, from a judgment of the county court of Wau-kesha county: M. S. GRiswold, Judge.</p> <p>The plaintiff is the owner of the E. •§■ of the 1ST. W. \ of section Ho. 32 in township Ho. 7 H., of range Ho. 17 E. In 1855 these premises were owned by one Johan Ealkheimer, who conveyed them to the plaintiff in 1874. The defendant Fred G. Fiedler is the owner of the S. "W. J of the said H. W. -j. In 1855 these premises were owned by the defendant Michael Fiedler, who conveyed them to the defendant Fred G. Fiedler in 1893. One Oaspar Shelhorn owned the W. I- of the S. W. -j- of said section. In the year 1855 the persons owning the said several tracts of land desired to construct a main ditch upon Shelhorn’s land, through which all their lands could be drained. There was already a ditch upon Michael Fiedler's land, which needed only to be opened into the proposed new ditch on Shelhorn’s land. There was a marsh or pond hole on Falkheimer’s land, which could be connected with the ditch already on Fiedler's land by a lateral ditch. So it was agreed that Falkheimer should pay one fourth of the expense of making the ditch upon Shei-horn’s land, and should have the right to make and maintain a ditch across Fiedler’s land to drain his pond hole into Fiedler's ditch. This agreement was oral merely, and was never reduced to writing. But it was carried out by all the parties. Ealkheimer paid one fourth of the expense of making the ditch on Shelhorn’s land, and made his ditch across Fiddler's land. This ditch was kept open by Falkheimer and the plaintiff until the year 1878, when Fiedler closed it, against the protest of the plaintiff, and it has ever since remained closed.</p> <p>This action is for a mandatory injunction requiring the defendants to reopen the ditch, and for damages. There was a finding and judgment for the defendants, from which the plaintiff appeals.</p> <p>They contended, inter alia, that the agreement in question was not a license, but was an agreement for an easement, and was taken out of the statute of frauds by performance and possession for more than twenty years. Hazelton v. Putnam, 3 Pin. 120; Gameron v. Austin, 65 Wis. 652; Weynard v. Lutz, 29 S. W: Rep. 1097; Wall v. M., St. P. c& S. S. M. R. Go. 86 Wis. 48, 57; Brown v. Hoag, 35 Minn. 375; SteinJce v. Bentley, 6 Ind. App. 663; MeBroom v. Thompson, 25 Oreg. 559; Burns v. M. <&-M. R. Go. 9 Wis. 450; Columbus F. R. Co. v. Will* iams, 411ST. E. Rep. 261, and cases cited. The ditch when made under the agreement by plaintiff’s grantor became appurtenant to the land and passed by the conveyance to plaintiff. Loop v. Chamberlain, 17 Wis. 504; Dillmanvi Hoffman, 38 id. 559; Galloway v. Bonesteel, 65 id. 79; Dim-ean v. Rodeclcer, 90 id. 1. That the agreement made between the parties was that this easement should be a permanent one, there can be no question, judging from the acts of the parties and the construction of the ditches as made by them.</p> <p>argued, among other things, that the parol agreement as to the lateral ditch was, under the statute of frauds, void and of no effect to convey any perpetual right to maintain said ditch, and was simply a parol license revocable by Fiedler, and was revoked by his closing said ditch in 1878. Sec. 2302, R. S.; Hazelton v. Putnam, 3 Pin. 107; French v. Owen, 2 Vis. 250; Clute v. Carr, 20 id. 532; Duinneen v. Pick, 22 id. 550; Fryer v. Wane, 29 id. 511; Lockhart v. Qeir, 54 id. 133; CronTchite v. CronTchite, 94 37. Y. 323; Wisemam v. Lucksinger, 84 id. 31; Crosdale v. Zanigan, 129 id. 604; Lcmrence v. Springer, 49 37. J. Eq. 289. The doctrine announced by some courts that a parol license like that here in question becomes irrevocable by execution upon a consideration, does not prevail in Visconsin. French v. Owen, 2 Vis. 250, and other Vis-consin cases cited above. Specific performance of an agreement .will not be decreed, under any circumstances, unless all its terms and conditions are clear, definite, unambiguous, and satisfactorily established by competent proofs. Pry, Spec. Perf. (2d Am. ed.), §§ 203, 223; Story, Eq. Jur. § 767; Blanchcurd <o. McDougal, 6 Vis. 167; Knoll v. Harvey, 19 id. 99; Tiernan v. Gibney, 24 id. 190; Schmeling v. Kriesel, 45 id. 325; Williams v. Williams, 50 id. 311, 316; Hadfield v. Skelton, 69 id. 460; Hibbert v. McKinnon, 79 id. 673; Cronkhite v.- • Cronkhite, 94 37. Y. 323. Unreasonable delay and mere lapse of time,' independently of any statute of limitations, constitute a defense in a court of equity; and plaintiff’s neglect to sue for sixteen years bars the action. Pomeroy, Spec. Perf. §§ 407, 408; Ery, Spec. Perf. (3d Am. ed.), §§ 1072, 1078, 1079; 1 Beach, Mod. Eq. Jur. §§ 18, 19; Sheldon v. Rockwell, 9 Vis. 166;- Crosliy v. Smith, 19 id. 450; Andrews v. Farmers' L. c& T. Co. 22 id. 288; Blanchard v. Doering, 23 id. 200, 205; Cobb <o. Smith, id. 266; Sable v. Maloney, 48 id. 331; Fisher v. Vaughn, 75 id. 609; Combs v. Scott, 76 id. 662; Kelley v. G. B., W. c& St. P. R. Co. 80 id. 335; Rogers v. Vam, Hortmick, 87 id. 414; Thomas m Thomas, 88 id. 97.</p>

A. Oheistiansoe, Judge. The facts sufficiently appear in the opinion. There was a verdict for the plaintiff in the amount of $100, and from the • judgment thereon the defendant appealed.

<p>Appeal from a judgment of the county court of Dodge county: Oheis. A. Christiaxsox, Judge.</p> <p>The complaint alleges in effect that October 1, 1892, .the plaintiff engaged in making cheese; that the defendant at that time agreed with the plaintiff to deliver pure, wholesome, unskimmed, and unstrained milk to the plaintiff’s factory ; that in consideration of said agreement the plaintiff agreed to pay the defendant eighty cents per 100 pounds- of milk in summer, and $1 per 100 during the remainder of the season; that in violation of said agreement the defendant, October 1, 1892, commenced skimming his evening’s milk and mixing the same with his morning’s milk, and also strained said mixture before delivering the same to the plaintiff’s factory; that the defendant continued such practice, without the consent or knowledge of the plaintiff, until October 5, 1893, when the plaintiff first discovered such skimming and straining; that thereupon the plaintiff commenced this action to recover damages for such breach of contract. The defendant answered by way of- admissions and denials of any such breach.</p> <p>At the close of the trial the jury returned a verdict in favor of the defendant. From the judgment entered thereon the plaintiff appeals.</p>

Scott Sloan, Circuit Judge. Action to recover a balance alleged to be due upon settlement of account. The plaintiff is a cigar manufacturer, and the defendant was his traveling salesman for several years prior to July 26, 1893. The plaintiff claimed that the defendant’s salary was $1,200 per year, and that, when he «eased to travel for plaintiff, defendant Rad collected money owing- plaintiff, in excess of his salary, amounting to $489.95.

Appeals from judgments of the circuit court for Dodge county: A. Scott Sloan, Circuit Judge. These cases arose out of the administration of the estate of Christian Meseberg, deceased, and out of the proceedings in the matter of the estate of John Steiner, deceased, to enforce a claim against the latter estate founded upon the bond of Eredericke Meseberg, the executrix of Christian Meseberg, signed by John Steiner as surety.

Scott SloaN, Circuit Judge. The action is ejectment. The controversy is over boundary lines between adjoining owners. A fence was built between the two possessions; apparently as a partition fence, as long ago as 1858, and has been maintained since by the adjacent owners in proportion to. their respective shares. The plaintiff obtained title to his tract in 1878. The defendant obtained title to his in 1873.

S. Geiswold, Judge. Garnishment. The facts sufficiently appear in the opinion. There was a judgment in favor of the plaintiff and against the garnishee, from which the latter appeals. contended, inter alia, that in this action the plaintiff seeks to recover of the garnishee wages claimed to have been earned by the principal defendant, and the issue ivas an issue of fact for the recovery of money only, and although commenced by garnishment is, in its nature, an action at law.

The plaintiff in error was charged in the information with having feloniously, wilfully, and with malice aforethought killed and murdered John Soocha, Jr., in Milwaukee, December 23,1893. He pleaded not guilty. On the trial the district attorney, in closing his argument to the jury, said: “We have had too many stabbing affairs in the city. Within forty-eight hours we have had three stabbing affairs in the city of Milwaukee.

<p>Eepoetkd from the circuit court for Marathon county: Chas. Y. BaRDebN, Circuit Judge.</p> <p>This was a prosecution for larceny of floating logs, under E. S. sec. 4449. The information charged that the defendant did “ unlawfully, wilfully, and feloniously take, carry awa3r, and convert to his own use ” certain logs. By the verdict the defendant was found guilty of having “ wilfully taken and converted to his own use ” ten of the logs mentioned in the information. Before sentence, and at the request of the defendant, the circuit judge reported the case to this court for decision upon the following questions: (1) Can the defendant be lawfully convicted and sentenced under sec. 4449 as amended, when the verdict of the jury does not find that such taking and conversion was done with a felonious intent? (2) This prosecution being for the first offense, and said sec. 4449 only making provision for the minimum penalty in case of conviction, and no limit being fixed as to the amount of fine the court may impose or the duration of imprisonment, can the defendant be lawfully convicted and sentenced thereunder? (3) Said sec. 4449 prescribing that upon conviction the defendant shall be punished by both fine and imprisonment, without limit, is it not void as being unreasonable, excessive, and indefinite?</p>

<p>(1) Nonsuit: Findings of fact. (3-5) Municipal corporations: Savers: Special assessments: Constitutional laxo: Notice: Equity: Injunction.</p> <p>1. The plaintiff in an equitable action should not be nonsuited for a failure to produce evidence to support his cause of action. Findings of fact and conclusions of law should be filed, as required by sec. 2863, R. S., and judgment should be rendered accordingly.</p> <p>2. Provisions in a city charter authorizing special assessments for sewers without any notice, either actual or constructive, of the proceedings to the ownei’s of the property to be assessed, are, unconstitutional and void, as not providing for “due pi’ocess of law.’’</p> <p>3. "Where the certificate of the sale of lands for a void assessment and' the deed issued thereon would be prima facie valid, a court of equity will interfere to restrain the threatened sale and prevent a cloud upon the title.</p> <p>4. Where a special assessment is void because the law under which the proceedings wei’e had is unconstitutional and void, it need not be shown to be inequitable in order to have its collection restrained. Hixon v. Oneida Co. 82 Wis. 515, distinguished.</p> <p>5. The substantive power of village boards to construct sewers and levy assessments therefor is dei'ived from subd. 11, 25, sec. 892, R. S., and not from secs. 895-904 (which are subsidiary and relate merely to the condemnation of land for such purposes); and such power is therefore not confeiTed upon cities by sec. 927, which authorizes the common council of every city to exercise the powers conferred on village boards by said secs. 895-904 and to proceed in the manner therein prescribed to construct sewers, etc.</p>

<p> Independent contractor: Liability of employer for injury to third person: Court and jury: Appeal from justice's court: Pleading: Amendment. </p> <p>1. One person who employs another to furnish materials and do specific work as an independent contractor is not, as a general rule, liable for injuries caused by the sole negligence of such contractor or his servants; but where the performance of the work in the ordinary mode necessarily or naturally resulted in producing the defect or nuisance which caused the injury, the employer is subject to the same liability to the injured person as the contractor.</p> <p>S. In an action for damages for flooding plaintiff’s land by opening a dam for the purpose of floating logs down a river;, it is held, upon the evidence, to have been a question for the jury whether defendants participated in operating the dam and making the drive, or whether their logs were driven by an independent contractor; and •also whether the performance of the contract/in the ordinary method of doing the work, would necessarily or naturally result in producing the injury complained of.</p> <p>3. On appeal from a justice’s court the plaintiff may be allowed to make any reasonable and proper amendment of the complaint in respect to the cause of action attempted to be stated, but not to amend by adding a new and independent cause of action.</p> <p>4. A cause of action stated in a complaint should not be stricken out without notice of a motion for the purpose and after the trial has commenced, but if so stricken out it will not be restored, when it • would be subject to be stricken out again on proper notice.</p> <p>The exceptions to the rule that an employer is not liable for acts of an independent contractor are considered in a note to Hawver v. Whalen (49 Ohio St. 69) in 14 L. R, A. 828.— Rep.</p>

<p> Debtor and creditor: Fraud: Equity: Setting aside judgment on cogno-vit: Signature of attorney to answer. </p> <p>1. In an action to set aside judgment- notes, judgments thereon, and the levies of’executions issued on such judgments, findings of the trial court to the effect that the judgments were founded on bona fide debts actually due for moneys advanced, and that all charges of conspiracy, collusion, and fraud against the judgment creditors were untrue and without foundation, are held to have been warranted by the evidence.</p> <p>3. The answer of confession upon which judgment was entered upon a note with warrant of attorney, under sec. 3896, B. S.. was signed by plaintiff’s attorney in the name of the defendants’ attorney, at the request of the latter, who had duly authorized such signing ■and who afterwards ratified the same. Held, that such method of signing was an irregularity merely and did not render the judgment void.</p> <p>3. A court of equity will not interfere to enjoin or set asidea judgment at law, even if it is void for want of jurisdiction, unless it is shown to be unjust or inequitable.</p> <p>Injunctions against judgments entered on confession are the subject ■of an extensive note to this case in 30 L. R. A. 238. — Rep.</p>

Appeals from a judgment of the circuit court for Wau-kesha county: Warham PaRKS, Circuit Judge. The plaintiff was marshal off the village of Waukesha. As such officer he rendered certain services in criminal matters, which were proper charges against Waulcesha county. His bill was laid before the county board. Certain items were disallowed. He appealed to the circuit court. There the trial was before a referee. The referee’s report was confirmed. Both parties appeal.

<p>Appeal from an order of the circuit court for Oconto county: S. D. Hastings, Je., Circuit Judge.</p> <p>This is an action of ejectment, in which the plaintiff was found entitled to recover by reason of the insufficiency of several tax deeds under which defendants claimed title, and all the facts were found to exist requisite, under sec. 3087, E. S., to entitle them to an order that the amount for which the lands were sold, and the cost of executing and recording the tax deeds, and the amount paid by them for taxes assessed on the premises subsequent to the tax sale, with interest on such sum at the rate of twentj^-five per cent, per annum from the time so paid till the date of the verdict, be set off against the damages awarded to the plaintiff by the verdict, and for the payment to them of the excess,. Avith interest thereon from the date of the verdict, within ninety days, as a condition of judgment being entered in plaintiff’s favor. The court entered the order accordingly, but in fixing the amount to be set off or paid, as required by said section, interest was computed upon all the tax sale certificates from the date of the tax sales, while the evidence showed that defendants bought the certificates of the county at their face several years after the sale. Plaintiff excepted to the order upon the ground that defendants were only entitled to interest upon the amount paid for the tax-sale certificates from the time so paid.</p>

<p>Appeal from a judgment of the circuit court for Marinette county: S. D. Hastings, Je., Circuit Judge.</p> <p>This action was brought to recover damages against the defendant for the negligent destruction by fire from one of its locomotives at Marinette, Wisconsin, on the 30th of September, 1891, of the lumber of the Menominee River Sash <& Door Qovypany, in its lumber yard adjoining the track of the defendant at that- place, of the value of about $7,000. Three insurance companies, having policies on the property, under which they had paid losses, were joined as coplaintiffs, that they might have the benefit of any recovery that might be had. The answer, admitting the corporate character and business of the plaintiffs, was a general denial.</p> <p>At the trial before a jury it appeared that the plaintiff the sash and door company had two lumber yards at Mar-inette, one of which was located about a block distant from its factory, between the main line of the defendant’s road, called its “western, yard,” and its spur track to Minne-kaunee, and east of their point of junction. There was an alley on the east side of this yard from the spur track to the main line. At the southeast corner of the lumber yard the spur track was about three feet lower than the bottom of the most southeasterly pile of lumber. One of the piles of lumber was piled in part on the right of way, which was about fifteen feet wide, and on the premises of one Hollister. It was at this point the fire started. The lumber was piled in the usual way, the pile in which the fire originated being four or five feet high, and the next fifteen feet; the piles varying all the way over the yard from that height down.</p> <p>The defendant’s switch engine No. 2 came from Menominee on the main track about half past 3 o’clock on the afternoon of September 30th, and afterwards went down on the ■spur track. The wind was blowing from the south, and there was a rotten pine stump, two or three feet in diameter, about fifty-five feet north of the main track, and, shortly after the •engine passed down upon the spur track, smoke was discovered coming from the stump, and it was found to be on fire. The switch engine returned from the spur track, and was-backing down the main track, when the fire was discovered in the low pile of lumber at the point mentioned. There is an upgrade on the spur track of eight feet for a quarter of a mile from the east to the lumber yard, over which the engine runs quite fast.</p> <p>Against the defendant’s objection; evidence was given to show that fires had occurred previously along the track in the vicinity of the lumber yard in March, April, and May, and on the 5th, 9th, and 12th of the previous June, while this switch engine was running back and forth in the vicinity. The foreman of the sash and door company testified that he used to look out for fires all the time from the switch engine, ¡because they had so many in that vicinity previous to the fire in question; that he had put out a good many of them; they were between the factory and the lime house east of It, and this engine was there switching when the fires were discovered; that there were so many of them that he could not keep track of them. Other evidence ivas given tending to show that other fires had been caused by switch engine No. 2 during the spring of 1891, and in the month of June, in the same vicinity where it did its work; At the time of the fire, September 30th, the weather was very dry, and had been for a considerable time.</p> <p>The plaintiffs put in evidence bulletins which had been posted in defendant’s roundhouse at Menominee, where this-engine was put up, issued by the superintendent of motive-power for the company. One dated February 10, 1891, was to the effect that a large amount of money had been paid out by the company during the last year on account of damages caused by fires by locomotives; that the testimony in numerous cases showed conclusively that such fires are the result of allowing the front end [of the engine] to fill up with cinders; that the fact that, if the front end becomes too full of cinders, sparks will be thrown, is familiar to all engineers; and that front ends must be cleaned out at proper intervals, to prevent throwing sparks; another, dated March 30, 1891, saying that “ all engineers must see that their netting is examined at the end of each trip, and recorded in a book kept in the roundhouse for that purpose; and another, dated September 24, 1891, to the effect that,. “ during the dry spells, engineers must pay particular attention not to allow front end of engine to fill on the road, and must stop and clean them out whenever there is a sufficient accumulation of cinders to cause the engine to throw sjDarks.”' Evidence was given tending to show that soon after the fire, for three successive days, the engineer had not examined the front end of switch engine No. 2, nor did any one, and that said engine threw' sparks considerably in November and December after the fire; that, three or four weeks before the fire, clothes hanging on a line parallel to the switch track, and seventeen feet therefrom, had holes burned in them by sparks from this engine. Evidence was also given tending to show the different manner in which single front engines and extension front engines are constructed and operated, and that both kinds of engines were in general use, and that all engines would at times throw small sparks or cinders from which fires might at times result; that some of the improvements in the single front engines to prevent fires are more modern than in the extension fronts.</p> <p>On the part of the defendant, it was shown, by uncontra-dicted evidence, that switch engine No. 2 went into the company’s shops for general repairs July 5, 1891, and left there for service August 2d thereafter, equipped with a baffle plate and usual devices for preventing the escape of sparks and cinders, and that the netting was new, all of which were fully described by an expert witness, who testified that his experience had brought him in contact with all styles of locomotives, equipped in all the ways in use, and that the devices so put in switch engine No. 2 were the most modern, tested, and approved devices in steam locomotives to prevent the escape of sparks; that he did not know of any device that would entirely prevent the escape of sparks through the smoke stack of a locomotive, and that he did not think it possible to use finer netting and still work the engine ; that the effect of finer netting would be to shut off the draft. Other expert machinists testified that when the engine left the shop August 2, 1891, it was in good condition in every respect, and could not have been in better condition. It was shown that John Oleary, the engineer who ran this engine at the time of the fire, was a competent and careful engineer, and he testified as a witness that be, with Joseph Bush and John Mullandyke, inspected the netting in this engine September 29th, the day before the fire, and found it in good shape, and that on the evening of September 30th they found the front end, netting, and pan, and the engine generally, in good shape, and also on the 1st of October; that on. these occasions they did not find any ■defect or want of repair in the front end of the eDgine or the pan. He testified to the management of the engine, at ■.the time it is claimed the fire was set, in the usual manner; that from September 24th to October 16th they inspected ibhe netting every night whan the engine came into the ■.roundhouse, in the presence of two witnesses; that he looked ¡her over, inside and outside, and found her all right; and that he knew of no engine that would not throw some sparks ■or cinders. The record of the inspection was produced in .evidence, and Bush and Mullandyke both testified, corroborating Cleary as to inspection.</p> <p>At the close of the evidence, the defendant asked the ■court to strike out all evidence in relation to fires claimed to ¡have been set by said engine Ho. 2 prior to September 30, ■1891, and, separately, to strike out all such evidence as to fires in April, May, June, and July, 1891, but these several requests were denied. The court, on like motion and without objection on the part of the plaintiffs, struck out all such «evidence as to fires in July, after the 4th of that month, and also all evidence as to throwing of cinders by said engine in Rfovember and December, 1891.</p> <p>The jury found a special verdict, in substance: (1) The fire in question started in the lumber yard of the Menominee Mwer Sash & Door Company, about seventeen feet outside ■of the defendant’s right of way, and about twenty-five feet ■from the center of the track. (2) The weather, at the time of the fire and for some time before, had been dry. (3) The ■defendant’s switch engine, hauling one loaded and two empty .freight cars, passed the place -where the fire started shortly before it started. (4) The fire in question was set by the defendant’s switch engine. (5) Said engine was properly ■constructed and equipped to prevent the escape of sparks and' cinders. (6) Said engine was not in good condition •¡when it passed the place where the fire started. (T) As to whether said engine was properly managed when it passed the place where the fire started, the answer was, “ Don’t, know.” To the eighth question, “Was there any want of ordinary care on the part of the defendant which caused the fire which burned the lumber?” the jury answered in the' affirmative; and to the ninth question, in substance, in what such want of care consisted, the jury answered, “ Careless, inspection of netting in engine ETo. 2.” It was found, in. substance, that the sash and door company had not been guilty of any want of care or negligence contributing to the injury, and that the value of the lumber destroyed was-$4,000.</p> <p>The plaintiffs moved for judgment on the verdict, and the defendant moved on the judge’s minutes, pleadings, etc., among other things, to set aside the sixth, eighth, and ninth answers and findings of the verdict,-as against the undisputed evidence in the case, and for judgment on the special verdict thus corrected and the undisputed evidence, on the ground that such evidence showed that the defendant was entitled to judgment. The court denied the plaintiff’s motion, and entered an order setting aside the answers or findings in the special verdict to the sixth, seventh, eighth, and ninth questions, as being contrary to the uncontradicted evidence in the case, and that the defendant have judgment, upon the uncontradicted evidence, dismissing the plaintiffs’1 complaint. Judgment was entered in favor of the defendant, pursuant' to this order, from which the plaintiffs appealed.</p> <p>contended, inter alia,. that if the court was right in its conclusion that the findings, of the jury as to the condition and management of the engine at the time of the fire were contrary to the undisputed! evidence, it could only direct a new trial and not judgment for the defendant. Sec. 2878, E. S.; Annas v. M. & N. B. Go. 67 Wis. 46, 60; Fish Greek B. c& L. B. Go. v. First Nat-Hank, 80 id. 630, 634; Ohhoeiler v. Lohmann, 82 id. 198, 203; Kennedy v. L. 8. T. do T. Oo. 87 id. 28, 35; Sheehy v. Duffy, 89 id. 6, 12, 13; Templeman v. Gibbs, 25 S. W. Rep. 736; German Ins. Oo. v. Frederick, 58 Fed. Rep. 144, 148. The evidence to rebut the presumption that the defendant was guilty of negligence in some respect causing the fire must be as broad as the presumption itself, and satisfactorily rebut every negligent act or omission which might, under the circumstances of the case, reasonably or naturally occasion the fire. Spaulding v. O. do N. W. R. Go. 30 Wis. 110, 121; S. O. 33 id.' 582, 593; Brusberg v. M., L. 8. do W. R. Oo. 55 id. 106; Karsen v. M. do St. P. R. Go. 29 Minn. 12; Nelson v. G., M. do St. P. R. Oo. '35 id. 170; Johnson v. O., M. do St. P. R. Oo. 13 Am. & Eng. R.. Oas. 460, 462; Greenfield v. O. ds N. W. R. Oo. 83 Iowa, 270; Ilockstedler v. D. do S. O. R. Go. 88 id. 236; Kurz dé H. 1. Oo. v. M. do N. R. Go. 84 Wis. 171; Stacy v. M., L. S. do W. R. Oo. 85 id. 225. The finding of the jury that they did not know whether or not the engine was propei-ly managed was equivalent to a finding that it was not so managed. The burden of rebutting the presumption of negligence was upon the defendant, and nothing short of an affirmative finding of want of negligence as to the management of the engine would suffice to overcome the presumption. Sherman v. Menominee R. L. Oo. 77 Wis. 14, 21; Flannery v. K. O., St. J. do G. B. R. Co. 23 Mo. App. 120; Ttorner v. K. O., St. J. do G. B. R. Oo. id. 12; Atchison, T. do S. F. R. Oo. v. McGandliss, 33 Kan. 366. Any circumstance from which the inference might reasonably arise that the sparks or cinders would not have been thrown or the fire set, under the circumstances of its setting, if the engine was not out of repair or was not properly managed, are sufficient to make a prima facie case and, with the legal presumption, to justify a jury in finding negligence. Brus-berg v. M., L. S. do W. R. Oo. 55 Wis. 106; Hoffman v. O., M. do St. P. R. Oo. 43 Minn. 334; PLuyett v. P. 'do R. R. Oo. 33 Pa. St. 373; Gerke v. Gal. S. H. Go. 9 Cal. 251; Greenfield v. O. da If. W. P. Go. 83 Iowa, 270; Missom'i P. P. Go. v. T. & P. P. Go. 41 Fed. Eep. 917, 918; Lake Erie da W. P. Go. v. Helmericlc,, 29 Ill. App. 270; Hagcm v. G., D. da G. •G. T. J. P. Go. 86 Midi. 615. The fact that the fire in the stump and in the lumber were set within an hour of ■each 'other, in the same locality, by the same engine, and under circumstances when an engine properly equipped and in good repair and properly managed would not have set such fires, is prima facie evidence that the engine was either out of repair or not properly managed. Smith v. O., M. (& ■ St. P. P. Go. 4 S. Dak. 71; Field v. H. T. G. P. Go. 32 K Y. 339; Webb v. P., W. d¡ O. P. Go. 49 id. 420; Mills v. G., M. & St. P. P. Go. 76 "Wis. 422, 427; Gibbons v. Wis. V. P. Go. 66 id. 161.</p> <p>They argued, among other things, that courts know judicially that sparks and coals that will set fire escape from engines well constructed and managed and in good order. Spaulding v. G. da H. W. P. Go. 30 "Wis. 123; Abbot v. Gore, 74 id. 513; Reading da G. P. Go. v. Latshanu, 93 Pa. St. 337; Fraee v. N. Y., L. E da W. P. Go. 143 K Y. 182, 187; Flinn v. H. Y. O. da H. P. P. Go. 142 id. 11; Hew York, G. da St. L. P. Go. v. Bolta, 36 FT. E. Eep. 414; Louisville da H. P. Go. v. Peese, 85 Ala. 497; Smith v. H. P. P. Go. 3 FT. Dak. 17; Jacksonville, T. da K. W. P. Go. v. Peninsular L., T. da M. Go. 27 Fla. 1, 157; Henderson v. P. da P. P. Go. 144 Pa. St. 461; Oronk v. G., M. da St. P. P. Go. 3 S. Dak. 93; McOaig v. Erie P. Go. 8 Hun, 599. The presumption that where a fire is caused by a locomotive it is due to negligence on the part of the company is indulged in merely for the purpose of putting the company to proof and compelling it to explain and show, with a reasonable and fair degree of certainty, not by the highest and most clear and unmistakable kind of evidence. that it has performed its duty. This presumption should be confined in its operation to the sole purpose for -which it is raised. Spaulding v. C. & N. W. B. Go. 30 Wis. 123; S. O'. 33 id. 591, 592; Bead v. Morse, 34 id, 315; Gibbons v. Wis. V. B. Go. 62 id. 546 ; Abbot v. Gore, 74 id. 511; Brusberg v. M., L. S. <& W. B. Go. 55 id. 106; Kurz & H. I. Co. v. M. db K. B. Go. 84 id. 171; Stacy v. M., L. S. db W. B. Co. 85-id. 225. In order that evidence of other fires may be admitted they must have occurred at or about the time of the-fire in question, and under conditions proved that show or tend to show the bad condition of the engine. Henderson v. P. ds B. B. Go. 144 Pa. St. 461; Pennsylvania B. Go. v.' Page, 32 Am. & Eng. R. Oas. 386; Oollvns v. N. 7. O. & H. B. B. Go. 109 FT. T. 243; Sheldon v. II. B. B. Go. 14 id. 218; Jaohsonville, T. db K. W. B. Go. v. Peninsular I., T. &• M. Go. 27 Ela. 157; Flinn v. N. 7. O. db H. B. B. Go. 142 RT. T. 11; McCaig v. Brie B. Go. 8 Hun, 599; Neve 7orh, 0. <& St. I. B. Go. v. Boltz, 36 RT. E. Rep. 414; Louisville & N. B. Go. v. Beese, 85 Ala. 497; Allard v. O. dé N. W. B. Go. 73 Wis. 165, 167; Gibbons v. Wis. V. B. Go. 58 id. 335. When a judgment is right on the undisputed competent proof, it will not be reversed on appeal because the verdict is against such proof, especially if the inconsistent part of the verdict has been set aside. The error or mistake of the-jury in finding against the undisputed facts is formal, and may be corrected or disregarded. The better practice is to correct it by striking out the inconsistent findings and ordering judgment on the evidence, or substituting for such findings proper ones, so that the record will show, from the order in either case, a foundation of fact for the judgment, without any bill of exceptions; for, otherwise, until such bill, the judgment would have no support in the record. But when the record is made to show the undisputed competent facts by bill of exceptions, it would seem that an inconsistent uncorrected verdict should not be ground for reversal; for the record then shows the basis of fact for the judgment, and that the verdict is a mere error “ in matter of form,” as in the case of judgment non obstante veredicto. Be this as it may, this verdict was corrected in the court below by setting aside the findings against undisputed facts and granting judgment on the corrected verdict and such facts; and the decisions in this court agree that that was right. SchweicJchart v. Stewwe, ?5 Wis. 157, 161; Mayhem v. Mather, 82 id. 363; Ohlweiler v. lohmann, id. 203;. Murjphey v. Weil, 89 id. 150; Sheehy v. Duffy, id. 6; Fich v. Mulholland, 48 id. 413.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: A. Scott Sloaít, Circuit Judge.</p> <p>On July 14,1885, Caroline Hellberg was the owner in fee and in possession of the land in question, and on that day she executed and delivered to the plaintiffs a written instrument, of which the following is a copy:</p> <p>[Exhibit A.]</p> <p>“Deceived of Messrs. Jacob Katz and Adolph Doctor the sum of One hundred Dollars as part purchase money for 49 acres of land, with buildings and. improvements thereon, situated in the Town of Wauwatosa, state of Wisconsin. Said described property being the same now occupied by me. Whole amt. of said purchase money is Twenty Thousand and three hundred Dollars. At the delivery of a warranted, perfect Deed, Two Thousand Dollars to be paid cash. The balance of Eighteen Thousand Three hundred Dls. payable in ten years from date of deed, with 4^% (four and one half f0) interest. Said Property situated in Town of Wauwatosa, and at present occupied by me & I promise to deliver Deed in six weeks. Above Amount included also all the two horses, wagons, and all the farmer Machienerie and Tools, etc:, etc.</p> <p>“ Dated July Ilf, 1886.' CaRoline Hellbekg.</p> <p>“Witness: Lucy Toole, Andkew SchneideR.”</p> <p>On April 29, 1886, the said Caroline died intestate, leaving, her surviving, as her only heirs at law, the defendants herein, who are each and all her children, except Fritz Furch, who is the husband of the defendant Amelia Furch. The plaintiffs commenced this action, and by the complaint as finally amended, July 21, 1890, ask that said written agreement (Exhibit A) be specifically performed by the defendants, by executing and delivering to them a warranty deed of. said premises, free from any and all incumbrances, upon the payment to the defendants of the sum of $1,900, and such sum as the court should find that the defendants are justly and equitably entitled to by way of compensation for the delay, and a purchase-money mortgage.</p> <p>The answer to said amended complaint consists, in effect, of admissions, denials, and counter allegations, and, among other things, alleges in effect that the purchase price named in said written instrument was unfair and inadequate; that the land was worth $80,000; that said Caroline tendered a deed, as required by said writing, August 25,1885, upon payment and security as therein required, but that the plaintiffs refused to perforin the contract; that thereupon said Caroline tendered back the $100 paid by the plaintiffs, with interest; that the plaintiffs had continuously refused to perform said contract down to May 27, 1890; that they had been guilty of gross laches and delay in offering performance, as well as in bringing the action; and that the plaintiffs were barred by prior adjudications.</p> <p>At the close of the trial and hearing the trial court found, as matters of fact, in effect: (1) That at the time of the execution of Exhibit A the land mentioned was occupied by said Caroline, and had clearly defined boundaries, well known to or easily observable by the plaintiffs; that all the parties at the time understood that it was for the sale of the lands so occupied and bounded, for the gross price named in the contract, irrespective of the number of acres of such land. (2) That any statement made by the said Caroline to the plaintiffs, before or' at the execution of Exhibit A, as to the quantity of said land, -was merely incidental, and by way of description or estimation, and without any intent on her part to warrant or guaranty that said land contained forty-nine acres or any other number of acres; that neither of the plaintiffs ever had any reasonable ground for relying on any such statement as a guaranty or warranty of quantity. (3) That August 25, 1885, the said Caroline duly tendered to the plaintiffs full performance on her part of said contract, which tender they then and there refused and rejected, and refused to accept any deed of said land, or to pay or secure the unpaid price thereof, unless she Avould deduct therefrom the sum of over $5,000, because the quantity of said land was less than forty-nine acres; that thereupon the said Caroline duly tendered to the plaintiffs the $100 so received by her on said contract, with interest, which tender the plaintiffs also refused and rejected. (4) That from August 25, 1885, the plaintiffs refused and neglected to perform or offer to perform said contract on their part, until May 27, 1890, and from September 5,1885, to May 27,1890, continuously sought to compel said Caroline and her heirs to convey the land for over $5,000 less than contract price thereof. (5) That between August 25, 1885, and May 27, 1890, the'value of said land increased from about said contract price to at least $90,000, and its value at the time of said trial was at least $100,000. (6) That said Exhibit A was recorded by the plaintiffs July 14, 1885. (7) That the value of the land, as fixed by the parties in Exhibit A, was not founded upon its usefulness or adaptability for farming or agricultural ■ purposes, but upon its proximity to the city of Milwaukee, and its prospective demand and use as city real estate, for commercial and other purposes. (8) That since July 14, 1885, the said Caroline or her heirs have been continuously in possession of said land, and paid all the taxes thereon. (10) That since before the commencement of this action defendants have at all times repudiated said contract and refused to perform it, and have treated it as rescinded and abandoned because of the plaintiffs’ refusal and neglect to perform'it according to its terms. (11, 12) That from the s nu-mer of 1885 the plaintiffs have in good faith litigated with said Caroline and' these defendants the rights as claimed by them in said property, and in all such litigation have, in good faith and without laches, asserted their rights to the property, for the purpose of obtaining a specific pei-formance of said contract in accordance with the true intent and meaning thereof, as claimed by them, or as might be determined by the court. (13) That the faith and belief with which the plaintiffs so litigated was founded on the advice of counsel, which advice was predicated on statements made by the plaintiffs to said counsel of the same facts testified to by them on the former trial hereof, and alleged in their complaint herein.</p> <p>And as conclusions of law the court found: (1) That the plaintiffs’ refusal to perform the contract for the sale of said land defeats their right to a specific performance of said contract. (2) That the plaintiffs’ delay to perform or offer to perform said contract according to its terms, together with the increase in the value of said land during said delay, precludes a judgment of specific performance in their behalf. (3) That the defendants are entitled to judgment dismissing this action Avithout costs to either party.</p> <p>From the judgment entered accordingly the plaintiffs appeal.</p> <p>They contended, inter alia, that not only are the acts of good faith and absence of laches correctly found by the circuit court, but as matter, of law the plaintiffs are not chargeable Avith such laches as would defeat their right to specific performance, even if laches were imputable to them. Penion-v. White, 26 Wis. 679; Flail v. Delaplaine, 5 id. 206; Palmer v. Williams, 24 Mich. 334; Palmer v. St. Paul F. <& M. Ins. Go. 44. Wis. 208; Reed v. Jones, 8 id. 392. 413. The contract between the plaintiffs and Caroline Hellberg called for the payment of $20,300 for forty-nine acres of land. Plaintiffs paid $100 down. There was in fact only about thirty-two and a half acres. ' When this fact was made to appear the plaintiffs were entitled to an abatement of the contract price, unless the vendor by proof could negative the presumption arising from the written agreement. ’ The burden of proof was upon her to show that she was entitled to $20,300 for thirty-two and a half acres. So long as this remained an undetermined question in the courts, laches could not be imputed to the plaintiffs. Pomeroy, Spec. Perf. 442; Decamp v. Feay, 5 Serg. & R. 323; Hepbv/m v. Auld, 5 Cranch, 262; Kerchevalv. Swope, 6 Mon. 362; Farris v. Ben-netts Fx'rs, 26 Tex. 568. Where time is not of the essence of the contract, mere increase in value of the land during a delay in complying therewith will have no effect upon the right of either party to compel specific performance. Young v. Wright, 4 Wis. 144,; Day v. Hunt, 112 N. Y. 191, 195; Pomeroy, Spec. Perf. §404; Brewer v. Herbert, 30 Md. 301; Low v. Treadwell, 12 Me. 441, 451, 452; Austin v. Waclcs, 30 Minn. 335, 341.</p> <p>They argued, among other things, that agricultural lands in the country are of stable value and hence, in contracts for their sale, time is not of the essence unless so stipulated. Mining or other lands in the' country, which are of inconstant value, and lands in or near cities, ■where value depends on municipal growth and commercial demand, are within the rule that time is made of the essence by the subject matter. Hipwell v. Knight, 1 Younge & C. 401, 416; Gcvrter v. Phillips, 144 Mass. 100; MeCay v. Gar-rington, 1 McLean, 50; Goldsmith'v. Guild, 10 Allen, 239; Richmond v. Gray, 3 id. 25; Hoyt r. Tuxbury, 10 Ill. 331, 339; Fdwcords v. Athinson, 14 Tex. 373; Pillow v. PiUow's Jleirs, 3 Humph. 644; Kirby v. Harrison, 2 Ohio St. 326; Jmnisons v. Leonard, 21 Wall. 302; 1 Warvelle, "Vendors, 108; Pry, Spec. Perf. (2d Am. ed.), § 713; 22 Am. & Eng. Ency. of Law, 1054-1058. If time was not originally of the essence of the contract it became so by the vendor’s demand for performance at the time fixed. Kirby v. Harrison, 2 Ohio St. 326; Garter v. Phillips, 144 Mass. 100. Delay alone unless excused may defeat specific performance. Hauyhwout v. Murphy, 21 N. J. Eq. 118, 122; Finch v. Parlcer, 49 N. Y. 1; Page v. McDonnell, 55 id. 299; Alexander v. Hoffman, 70 Ill. 114; Fry, Spec. Perf. §§ 730, 732, 736; Pomeroy, Spec. Perf. § 403. The concurrence of long delay and substantial change in value bars the party in default from right to specific performance. Combs v. Scott, 76 Wis. 662; Cheney v. Goole, 7 id. 413; Bacon v. Hennessey, 35 Fed. Pep. 174; Rogers v. Van Nortwide, 87 Wis. 414; Simpson v. Atkinson, 39 Minn. 238; Peters v. Delaplaine, 49 N. Y. 362; Delavan v.Duncan,id. 485; Merchants’ Banlev. Thom,son, 55 id. 16; Du Bois v. Bauen, 46 Pa. St. 537; Ruff's Appeal,310; Hoyt v. Tuxbury, 70 Ill. 331; Requav. Snow, 76 Cal. 590; Johns v. Morris, 22 N. J. Eq. 102; Brash-ier v. Qratz, 6 Wheat. 528; llolgate v. Eaton, 116 U. S. 33, 40 ; Ford v. Euleer, 86 Va. 75; 2 Warvelle, Vendors, 758; Pomeroy, Spec. Perf. § 409; Morse v. Seibold, 147 Ill. 318; Barnard v. Lee, 97 Mass. 92. The appellants not only failed but refused to perform, not only at the time fixed by the contract but for five years thereafter. Such refusal bars their right to specific performance. Pyatt v. Lyons, 51 N. J. Eq. 308; Boyd v. Schlesinger, 59 N. Y. 301; Eshle-mcm v. Henrietta V. Co. 97 Cal. 670; Weingmrtner v. Pabst, 115 111.412; Ciarle v. Koenig, 36 Neb. 572; Data v. Phillips, 137 Pa. St. 203; Coldthwait v. Lynch, 9 Utah, 186; Emrich v. White, 102 N. Y. 657; Campbell v. Hides, 19 Ohio St. 433; Svmpson v. Atleinson, 39 Minn. 238; Lewis v. Woods, 34 Am. Dec. 110; Clement v. Evans, 15 Ill. 92; 2 Warvelle, Yenclors, 776; Fry, Spec. Perl. 365; Jones v. Wittner, 79 Hun, 2S3; Haffiey v. lynch, 68 id. 507. Misconstruction of such a contract and resort to litigation to enforce the mistake do not excuse refusal and failure to perform it. Boyd v. Schlesinger, 59 FT. Y. 301; Page v. McDonnell, 55 id. 299; Bacon v. Hennessey, 35 Fed. Eep. 174; Emrich v. White, 102 FT. Y. 657; Simpson v. Atkinson, 39 Minn. 238; Eshlemanv. Henrietta V. Go. 97 Cal. 670.</p>

D. Hastings, Jb., Circuit Judge. This was an action brought by the assignee of a stock of merchandise under a voluntary assignment to set aside and annul a chattel mortgage on the same stock, given to the defendant one week previous to the assignment, and in contemplation of insolvency. It was contended by the defendant that the assignment was void because it contained an unlawful preference, and because made with intent to hin-' der, delay, and defraud creditors.

<p>Appeal from a judgment of the circuit court-for Oconto county: S. D. Hastings, Je., Circuit Judge.</p> <p>The action is for damages for the killing of two colts by the defendant’s train near Little Suamico. At that place the defendant maintains a regular station, consisting of a depot building for freight and passengers, a water tank, cattle pens, and sidetracks. One sidetrack terminates at a switch which is about 1,400 feet north from the depot building. A short distance north of the switch is a cattle guard, and from that point northward the right of way is fenced. South from this cattle guard the right of way is unfenced for the distance of half a mile., This whole unfenced portion of its right of way the defendant claims to be comprised within its depot grounds. A short distance to the south of this switch two highways intersect the track. At this point of intersection it is the custom to load and unload freight. At a point north of this intersection, but between it and the switch, the plaintiff’s colts came upon the right of way, went north upon the track to the cattle guard, and stood there until they were killed by a passing train..</p> <p>The question litigated was whether the place where the colts came upon the right of way was within the defendant’s depot grounds. The question was submitted to the jury, who answered it in the negative. There was judgment for the plaintiff, from which this appeal is taken. The errors assigned are (1) the submission of this question to the jury; and (2) a refusal to set aside the answer as unsupported by the evidence. The question presented by the appeal is, practically, whether there is evidence sufficient to take this question to the jury, or whether the court should have decided it in favor of the defendant.</p>

<p> Lost deed: Quieting title: Evidence: Declarations of grantor. </p> <p>1. Declarations in his own favor, made by the grantor of land after delivery of the deed, are inadmissible to show that it was not delivered with intent to pass the title.</p> <p>2. In an action to quiet title, brought by one claiming under a lost and unrecorded deed against the heirs of the grantor, the evidence— showing, among other things, who drew the deed, who were the witnesses, who took the acknowledgment, the .consideration, consisting mainly of the cancellation of a judgment plaintiff had against the grantor, that the deed was delivered unconditionally to plaintiff’s husband for her, and that such judgment was actually canceled at about that time — is held clearly to preponderate against a finding of the trial court that plaintiff never owned the land.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. Hastings, Je., Circuit Judge.</p> <p>This is an action to recover damages sustained by the plaintiff, July 2, 1893, while walking on the sidewalk on the north side of Cherry street, in the defendant city, by reason of an alleged defective sidewalk. The complaint is in the usual form. 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 there was an insufficiency or want of repair in -the sidewalk in question, which caused or contributed to the plaintiff’s fall and injury; (2) that the city authorities, prior tó the accident, had actual knowledge or notice of such insufficiency or. want of repair; (3) that-such insufficiency or want of repair was of such a nature, that it was apparent to ordinary observers passing over the sidewalk; (4) that sucb insufficiency or want of repair was of such a nature and had existed for such a length of time that the city authorities, in the exercise of ordinary care and diligence, should have discovered it before the accident;. (5) that the plaintiff was not guilty of any want of ordinary care which contributed to her injury; (6) that the plaintiff sustained damages in consequence of the accident to the amount of $1,200. From the judgment entered in favor of the plaintiff on said special verdict for such damages and costs, the defendant appeals.</p>

<p>Appeal from an order of the circuit court for Brown county: S. D. Hastings, Je., Circuit Judge.</p> <p>The action was brought to recover damages for injuries suffered by a .fall upon a defective sidewalk-, upon one of the streets of the defendant city, in front of the lot of one Eroncee. The sidewalk was charged to have become out of repair. Eroncee was named as a codefendant in the summons and complaint, but was never served. The defendant city, by answer, alleged that Eroncee, the owner, and one Schroeder, the occupant, of the lot aforesaid, were charged with the duty of keeping the sidewalk in question in repair, and were primarily liable for the plaintiff’s injury, if she was injured; and, upon the answer and an affidavit showing such ownership and occupancy, moved for a stay of proceedings until said Eroncee and Schroeder should be made parties to the action and served with process. The motion ivas denied, and the city appealed.</p>

D. Hastings, Ja., Circuit Judge. This action was brought to recover damages sustained by ■the plaintiff in consequence of injuries he received through the alleged negligence of the defendant, and while in its employ on the track of its railroad, built and operated to draw logs to its mill.

I). Hastings, Je., Circuit Judge. The relator was a witness on the part of tbe state in- a criminal examination before a justice of j;he peace. The defendant in that proceeding was held for appearance in the-circuit court. The justice required the relator to give recognizance for her appearance as a witness before that court..

D. Hastings, Jit., Circuit Judge.- This is an action to recover compensation for personal injuries received by plaintiff while he was in the employ of the defendant as a car repairer. Such injuries were received through the negligence of a yard switchman in causing a-car to be kicked against the one in which plaintiff was working.

D. HastiNgs, Jk., Circuit Judge. Tbe complaint alleges, in effect, tbe incorporation of tbe defendant, and tbe owning and operating of its line of railway through tbe state; that on and prior to March 3, 1890, tbe plaintiff was engaged as brakeman on one of tbe defendant’s freight trains; that while so engaged, on the day and year last named, at about 8 o’clock in tbe evening, at Mari-nette, it became tbe duty of tbe plaintiff to make a coupling of tbe moving portion of tbe…

<p> Partnership: Evidence: Voluntary assignment when one partner has absconded. </p> <p>1. Contrary to findings of the trial oourt in this case, it is held that the clear preponderance of the evidence shows that the principal de-. fendant, H., and one M. were partners in business and owners of the Taylor County Bank when a voluntary assignment of all the property of the hank was made by H. on behalf of himself and M. as such partners.</p> <p>2. One partner in a private banking business having suddenly left town and abandoned the business because he knew the bank would have to close its doors, the remaining partner, finding the business insolvent, might make- a valid assignment of the firm property, consisting of personalty, for the benefit of creditors.</p>

<p>(1) Judicial notice: Foreign statutes, etc. (2, 3) Trustee of foreign cor-, poration: Capacity to sue in this state: Comity: Pleading.</p> <p>1. Judicial notice cannot be taken of the statutes of another state or of the proceedings in its courts. ''</p> <p>2. In an action to recover an assessment upon a premium note given to a foreign insurance company, the complaint, alleging that plaintiff was trustee of the creditors of such company, duly appointed by a court of the state of its domicile, and that by order of said court he had levied the assessment upon all the premium notes, including defendant’s, held by him as such trustee, but not alleging that by the laws of said state or by the order or judgment of said court the plaintiff, as trustee, had any right to sue for and recover the assets of the insurance company, or that any assignment of such assets had been made to him, is held, on demurrer, not to state facts sufficient to entitle the plaintiff to sue for and recover the assessment in a court of this state. Parker v. Stoughton Mill Co., ante, p. 174* distinguished.</p> <p>3. Plaintiff’s want of legal capacity to sue appearing on the face of the complaint, it was not necessary to plead it in abatement, but the objection was properly taken by demurrer.</p>

judgment of tbe circuit court for Ash-land county: JohN K. Paeish, Circuit Judge. Tbe appeal is from a judgment sustaining a demurrer ore terms to tbe complaint. Tbe action is trover for tbe conversion of lumber.

Pakish, Circuit Judge. Plaintiff sold to defendant a quantity of saw logs, to be paid for at the rate of $6.10 per thousand feet, according to, the scale to be thereafter made on the mill deck. The logs, were delivered in defendant’s boom at defendant’s mill, and taken charge of by it, and plaintiff did all that he was to do' under the contract.

<p> Insurance against fire: Additional insurance: Implied consent: Increase of hazard: Negligence of insured: Court and jury. </p> <p>1. Although, by the terms of an insurance policy, it was to become void, unless otherwise provided by agreement indorsed thereon or added thereto, in case the insured should thereafter procure other insurance on the property, implied authority to procure additional insurance was given by a written statement, signed by the company’s agent, bearing even date with the policy, and attached thereto as a part thereof, to the effect that if, at the time of a fire, the whole amount of insurance on the property should be less than eighty per cent, of the actual cash value thereof the company should be liable for only such proportion of the loss or damage as the amount insured by the policy should bear to said eighty per cent, of said actual cash value,- — especially where all the additional insurance was procured by the same agent %vho issued the policy in question.</p> <p>2. Whether the use by the insured of inflammable sulphur candles to fumigate his store building was an increase of the hazard by means within his control or knowledge was a question of fact to be determined by the jury from the evidence; and the'refusal of the trial court to submit to the jury the question whether the hazard was increased by the use of such fumigators was error, although it did submit the question whether the fire was caused by the fault or negligence of the insured,— such latter question not being equivalent to the former one.</p> <p>3. A fire insurance company is not relieved from liability on its policy by the fact that the loss occurred through the mere negligence of the insured or his servants.</p> <p>4. In an action upon a policy which provided that the company should not be held to have waived any provision or condition of the policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating to an appraisal of the loss or any examination of the insured therein provided for, the question whether a forfeiture had been waived by other acts not so provided for, whereby it had put the insured to expense or disadvantage, is held, upon the evidence, a question of fact for the jury.</p>

<p>Appeal from-a judgment of the circuit court for Ashland county: JohN K. Paeish, Circuit judge.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: Joi-iN K. Paexsh, Circuit Judge,</p>

<p>Appeals from a judgment of the circuit court for Langlade county: J ohN GoodlaND, Circuit Judge.1</p> <p>This was originally a proceeding before commissioners appointed under cb. 537, Laws of 1887, “ to adjust and settle all matters of property, debts, credits, assets, and liabilities of Langlade county,” as they were on the 14th day of April, 1885, according to the provisions of sec. 10, ch. 436, Laws of 1885, by which Forest county was created from territory detached from Langlade and Oconto counties. It was taken by appeal to the circuit court. From the judgment of the circuit court both parties appeal to this court.</p> <p>There is little dispute about the facts. Nearly all of the facts upon which the judgment is based are agree'd. Put the agreed facts are not in all respects so clearly stated as to make it clear what the ultimate determination should be.</p> <p>On Langlade county’s appeal is presented the question of the correctness of the judgment in disallowing to Langlade county items amounting to $12,715.72. These are all of one character. They are all for uncollected delinquent taxes returned by towns now in Forest county, before the division, to the county treasurers of Langlade county, which were claimed to be uncollectible by reason of infirmities going to the groundwork of the tax, and which were compromised by Langlade county with the owners of the land taxed. The whole sum remitted Langlade now claims to charge back upon Forest county in, the settlement, together with the cost ■of advertising the lands for sale. These claims were not allowed.</p> <p>On Forest county’s appeal four principal items are controverted : (1) The judgment of the circuit court permitted Langlade county to retain the sum of $3,232.45, which appeared by the records of Langlade county to be due to the ■several towns whose territory had been detached to make Forest county. (2) It excluded from the present assets of Langlade county, which should be divided between the two •counties, the sum of $312.30, which Langlade county 'had received, by the redemption of lands sold for taxes, of the fees for advertising the redemption list. (3) In the adjustment the court charged to Forest county, at their face value .and interest, tax certificates to the amount of $311.81, which, before the division of the cownfy, had been rendered nearly -or quite worthless by the action of the county treasurers of Langlade county in selling junior certificates contrary to law, while the county held older certificates. This loss, it is claimed, should be apportioned. (4) In the adjustment the court charged to Forest county, at their face value and interest, tax certificates to the amount of $460.13, which, ■after the dimisión, had been rendered nearly or quite worthless by the action of the county treasurer of Langlade county in selling junior certificates contrary to law, while the county held older certificates. This loss, it is claimed, should be borne by Langlade county.</p> <p>It is the correctness of the decision' of these several matters which is involved upon, these appeals'.</p>

<p> Criminal law and practice: Possession of burglar’s tools: Intent: Pleading: Improper remarles of district attorney. </p> <p>-1. An information under oh. 63, Laws of 1893, charging defendant with having in bis possession tools adapted and designed for cutting through, forcing, or breaking open buildings, rooms, etc., in order to steal therefrom money and other property, and alleging generally, in the words of the statute, his intent to use or employ the tools for the purposes aforesaid, is sufficient without charging specifically that he intended feloniously to steal, take, and carry away from the owner thereof money or other property found in-such building, room, etc.</p> <p>3. On the trial for such an offense the district attorney, in his argument to the jury, said, in effect, that defendant and two men arrested with him were thieves, and afterwards repeated the statement, and the court ruled that the remarks were warranted by the evidence. There being no evidence that defendant had ever been convicted or been guilty of larceny, such ruling was error.</p>

<p>Appeal from a judgment of the circuit court for Outa-gamie county: JohN GoodlaND, Circuit Judge.</p> <p>It appears from the record, and the trial court has in. effect found, that July 9, 1888, the defendant railway pom-pany instituted proceedings for the condemnation, for railway purposes of eight and eighty-three one-hundredths acres of land, described in Schedule A; that the petition for such condemnation stated that the plaintiff claimed to be the owner in fee of the whole of said premises; that Mary E.. Grignon (a widow) claimed to be the owner in fee by adverse-possession of two and thirty one-hundreths acres of said premises, described in Schedule B, and also claimed a right, of dower in the balance of said premises; that two or three other persons, respectively, claimed some interest in the premises or some part thereof; that the award of the commissioners in said proceedings for the whole of the land was-$3,600, of which $700 was for the lands in Schedule B, andi $2,900 for the balance of said lands; that thereupon the railway company paid to the clerk of the trial court, for the use of the several owners in fee or of any interest in said lands, the-full amount of $3,600; that the plaintiff appealed from said', award, but that no one else took any appeal; that, upon said appeal being taken, it was stipulated by the parties, in effect,, that the jury, by special verdict, make two assessments,— one as though the plaintiff was the owner of all the land affected by such, appeal, the other as though he was the owner of all but the portion described in Schedule B,— and that, on the rendition of such verdict, the court make final disposition of the case and the distribution of the damages ,r. that upon the trial in the circuit court the jury returned a verdict to the effect that the damages for taking the land described in Schedule B were $1,00’8.6Y, and that the damages for taking the remainder of said land were $2,665.33, amounting in the aggregate to $3,674; that, after said award, Mrs. Grignon’s claim to- be such owner in fee of a part of said premises had been determined against her, and May 28, 1894, she conveyed all her interest in the whole premises to the plaintiff, and April 3, 1894, one of the other claimants conveyed all his interest in the premises to the plaintiff, who is the owner in fee of the entire premises.</p> <p>As conclusions of law, the court found that the plaintiff was entitled to judgment for $3,674, with interest thereon at the rate prescribed by law from August 27, 1888, to the-entry of the judgment therein, less the $3,600 so on deposit, and, after the application of the same, the plaintiff have execution against the defendant for such balance, with costs as taxed, including costs on the appeal from the award. From the judgment entered accordingly the defendant appeals.</p>

<p>Johnson v. Superior JR. T. B. Co., ante, p. 233, followed.</p>

Paeish, Circuit Judge. The defendant Conover, a manufacturer, being insolvent, on the 13th day of January, 1894, entered into an agreement with a portion of his creditors and with the garnishee defendant, D. M. Maxcy, as follows: “Memorandum of agreement, made this 13th day of January, A. D. 1894, by and between A. W. Conover, party of the first part, and D. M..

<p>Appeal from a judgment of the circuit court for Ashland county: JohN K. Paeish, Circuit Judge.</p> <p>This action was commenced November 2,1891. The complaint alleges, in effect, that the plaintiffs, as copartners, were doing business as architects at Ashland, and as such, from October 1,1889, until November 1,1890, they rendered services to the defendant, at his request, in forming and drawing plans and making estimates for and superintending the erection of a building known as the Knight Block, in Ash-land, for the agreed price of four per cent, of the gross cost of said building, which was $120,000; that the defendant had only paid on account of such services $1,300, leaving a balance of $3,500. Eor the second cause of action, they alleged that, as such architects, they performed extra work and services for the defendant in the replanning of the roofing twice, and that the same were reasonably worth $200; and, for the third cause of action, alleged that they performed extra work in the replanning of the roof trussing, at the request of the defendant, which was reasonably worth . $200; and demanded judgment for $3,900, with interest.</p> <p>The answer consisted of admissions, denials, and counter allegations by way of defense, and counterclaims, and prayed that the complaint be dismissed, and for judgment against plaintiffs for $71,300, with interest and costs. The plaintiffs replied, and denied each and every allegation of the several counterclaims. The defendant was thereupon required to give a bill of particulars of his claims, and the same was given, and consisted of nineteen different items, aggregating nearly $70,000; but they were mostly ruled out for insufficiency of the bill of particulars, or otherwise.</p> <p>At the close of the trial, January 12, 1894, the jury returned into court with their verdict, consisting of answers to fourteen questions. The tenth, twelfth, and fourteenth are herein given as returned by the jury, together with the modifications thereof by the court, June 27, 1894, and the others are given in substance, wherein the jury find as follows: (1) By the court: That the plaintiffs were copartners, doing business as architects, at the time mentioned in the plaintiffs’ complaint. (2) By the court: That the plaintiffs, as -architects, between August 16, 1889, and on or about November 1, 1890, did render services for the defendant at his request in forming and drawing plans, in making estimates, and superintending the erection of the Knight Block, as alleged in the plaintiffs’ complaint. (3) By the court: That the defendant did promise to pay the plaintiffs, for their said services as architects and superintendents, four per cent, of the gross cost of said building. (4) By the coxwt: That the gross cost of said building was $120,000. (5) By the court: That the plaintiffs had been paid, in all, on said services, $1,300. (6) That the plaintiffs’ services were not Avorth anything for their alleged extra work in replanning of the roofing of said building and in replanning the roof trusses. (7) That the plaintiffs did agree, Avhen they entered into the said contract Avith the defendant, that the plaintiff Conover should give his personal services in superintending the construction of said building. (8) That .the original agreement was modified by tbe plaintiffs and the defendant, by authorizing the plaintiffs Porter and Padley to superintend, or to assist in superintending, the construction of said building. (9) That the plaintiffs were discharged by the defendant in October, 1890, from further superintending the construction of said building. (10) “ If you answer the last question by Í Yes,’ were plaintiffs discharged for good and sufficient reasons?” Answer: “Yes.” (This answer was changed by order of the court, June 27, 1894, to “No.”) (11) That the plaintiffs did not give to'the construction of said building the superintendence required by the terms of the agreement or understanding of said parties. (12) “ Did plaintiffs perform their part of said agreement substantially and according to the terms thereof?” Answer: “No.” (This answer was ■changed by order of the court, June 27, 1894, to “Yes.”) (13) That the defendant did not sustain any damage by the ■alleged want of ordinary diligence and skill of plaintiffs in ■carrying out their part of said contract. (14) “"What is due plaintiffs, if anything, over and above all setoffs?” Answer: “ Nothing.” (This answer was changed by the court, ■June 27, 1894, to “ $2,360.”)</p> <p>Upon the verdict rendered by the jury and so changed by the court, the court ordered judgment in favor of the plaintiffs for $2,360, with interest thereon from October 31, 1890, and costs. From the judgment entered thereon accordingly the defendant appeals.</p>

<p> Sale: Title retained as security: Remedies: Judgment. </p> <p>Vendors of logs, who retained title thereto and to the lumber made therefrom as security for the purchase money, are entitled to judgment in an action upon a note given for the purchase money, although they have already, in an action of replevin for the lumber, had judgment for the full amount of their special interest therein.</p>

<p>Appeals from judgments of tbe circuit court for Ashland ■county: JohN E. PARISH, Circuit Judge.</p> <p>These cases were proceedings upon behalf of the respective plaintiffs to ascertain and determine the amount of compensation to which they claim to be entitled by reason of the taking and occupation of certain lands by the defendant ■company for railroad purposes, and were instituted under •sec. 1852, E. S. Ey stipulation they were tried and decided •upon the same evidence. Separate verdicts having been found for the plaintiffs in each case, from each judgment rendered thereon the defendant company appealed.</p> <p>The premises in question are a part of the town-site of Ashland, in what was formerly La Pointe county, and were entered by the ■county judge of that county in trust for the settlers, under the act of Congress of May 23,1844 (5 U. S. Stats. 657). A patent was issued in due form of law upon said entry. The evidence tended to show that Martin Beaser, Asaph Whittle-sey, and George Kilbourne were the first settlers on said premises, and that Charles C. Tucker, since deceased, received a conveyance from Asaph Whittlesey of a one-half interest in his lots on the town-site August 28, 1856, and that on April 12, 1872, the county judge of the county, under ch. 95, Wis. Laws of 1856,— an act authorizing county judges to perform and discharge the trusts specified in said act of Congress of May 23, 1844,— conveyed to Whittlesey and Tucker the lots in question. In an action for partition brought by the plaintiffs in these cases against Lucy Whit-tlesey, Delia Green,and others, heirs at law and grantees of Asaph Whittlesey of the said premises, and claiming title under said Asaph Whittlesey, the lots in question in these proceedings were adjudged and decreed to the plaintiffs as heirs at law of said Charles C. Tucker, deceased, by the circuit court for Ashland county, April 5, 1888. Jack Z. Tucker and wife conveyed to the plaintiff Lela M. Tucker all their right, title, and interest to lots 1, 2, 3,10,11, and 12, block 17,, in Ashland, claimed by her, July 5, 1892; and on the 8th day of the same month, the said Charles O. Tucker assigned,, transferred, and set over to the said Lela M. Tucker all his right, interest, claim, and demand against the defendant growing out of the taking and occupation for railroad purposes of a right of way across said lands; and the said Jack Z. Tucker, on the 14th of the same month, executed to her a like assignment of all his right and demand in respect to the same premises. The said Lela M. Tucker and Charles C. Tucker also made similar assignments to the plaintiff Jack Z. Tucker, in July, 1892, of their respective rights, claims, and demands against the defendant for the taking and occupation for railroad purposes of a right of way across the lands claimed by him; and in like manner similar assignments were made by Jack Z. Tucker and Lela M. Tucker of their claims and demands against the defendant for the same.reason, in respect to lot 12, block 30, in the city of Ashland, to the said Charles C. Tucker.</p> <p>The defendant gave in evidence several tax deeds, dnly recorded, on sales of the premises in question, made while the said heirs were minors, acquired by E. H. Abbot, but they have redeemed the said premises from all tax sales before arriving at the age of twenty-one years. The defendant also offered in evidence condemnation proceedings for a right of way across said several lots, instituted by the Ash-land Eailway Company in 1882, against said Abbot and others; but these plaintiffs were not parties thereto, and the proof wholly failed to show that the strip of land taken and used by the defendant for a right of way wp,s in any way identical with the premises said to have been taken by the Ashland Eailway Company, or that the defendant had succeeded to any of its rights. Upon said proceedings there was an award of $20 to the said Abbot, which amount was paid to him for the strip of land across said lot 12.</p> <p>These proceedings were instituted August 27, 1892. Tela M. Tucker became twenty-one years of age March 30,1892; Charles C. Tucker, March 3, 189.0; and Jack Z. Tucker, August 19, 1888. The defendant took and entered into pos-' session and use of the premises in question in June, 1883, but not under any written instrument or color of title.</p> <p>Evidence was offered and received tending to show that Martin Eeaser, Asaph Whittlesey, and George Kilbourne were not the proper beneficiaries of the title passed to the county judge for the benefit of the settlers under the act of Congress. It was also insisted that the plaintiffs were barred of their right to recover by virtue of the statute of limitations. E. S. secs. 4215, 4222.</p> <p>They contended, inter alia, that the plaintiff seeks to recover compensation for the taking of the land in question, and it is to compel tbe payment of a sum of money for damages for such taking that this proceeding is brought. Such being the case, the six-years statute of limitation would bar the proceeding. In re Clark, 74 Hun, 294; Hamilton v. Manhattan B. Co. 9 N. T. Supp. 813; Jones v. U. 8. 48 Wis. 385; Harsbarger v. Midland B. Co. 131 Ind. 182; Indiana, B. & W. B. Co. v. Allen, 100 id. 409. Ten years’ acquiescence in'the use of the right of way by the railroad company would change the proceeding into an action of a personal nature for the value of the premises taken. Mitehell v. H. 0. & H. F. B. Co. 41 La. Ann. 363; Fullerton v. Spring, 3 Wis. 667; Hanlin v. C. (& H. W. B. Co. 61 id. 515. The right to compensation accrues immediately upon the taking of the property by the railway company. Pratt v. Brown, 3 Wis. 603; State ex rel. Fvans v. James, 4 id. 408. It would seem that at least the ten-years statute of limitation would bar the proceedings. Fullerton v. Spring, 3 Wis. 667; Simpson v. Srieelode, 83 id. 201.</p> <p>They argued, among other things, that the deed of the county judge is' conclusive and not subject to collateral attack. Smith v. Pype, 3 Colo. 187; ch. 95, Laws of 1856; Taylor v. Winona ds St. P. B. Co. 45 Minn. 66; Chever v. Horner, 11 Colo. 68, and cases cited; Ming v. Foote, 9 Mont. 201; Mu/rray v. Hobson, 10 Colo. 66; Anderson v. Bartels, 7 id. 256. 1 '</p>

Paeish, Circuit Judge. The plaintiff had a number of pine logs in a boom in an eddy in Elag lake, and others on- the bank adjacent. One Brace and others had a much larger number of logs in Elag. lake. Brace and others sold their logs to the defendant, and drove them to the mouth' of Elag river, where they were taken by the defendant’s agents, and taken to: the defendant’s mills -at Ashland.

Aspial from a judgment of tbe circuit court fbr Ashland county: JohN X. Parish, Circuit Judge. This action is for the recovery of compensation for an injury which plaintiff alleges he received through actionable negligence on the' part of defendant. At the close of the testimony defendant’s counsel moved the court to direct a verdict in-his favor, which-was denied, and exception to the ruling was duly taken.

Paeish, Circuit Judge. This is an action for damages sustained by the plaintiff by reason of having been ejected from a train on the- defendant’s railway, Saturday, April 15, 1893. The answer consists of admissions and denials. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at $350. From the judgment entered thereon the defendant appeals.

Parish, Circuit Judge. Towner ds Hooper made a contract with, the defendant school board to build a school-house at Iron River. Kelley sold Towner ds Hooper the lumber for the school-house, payable by order on the school board. After the lumber had been furnished, Towner ds Hooper gave Kelley an order on the school board for $600 to apply on the lumber bill. Kelley took the order, and it was presented to the school board.

This is an action by the plaintiff to recover from the defendant the sum of $2,873.92, alleged to have been received by it from John Eobson to and for the plaintiff’s use, and which it refused to pay over. The defendant denied having received any moneys from Eobson or any,one else to the use of, or to be paid to, the plaintiff.

<p>Appeal from a judgment of the circuit court for Ashland county: JoHN K. Paeish, Circuit Judge.</p> <p>This is an action to foreclose a mortgage on a lumber mill and other property in the city of Ashland. On the 31st day of December, 1890, the plaintiff lent to one Donald A. Kennedy, who was then the owner of the mill and land, $10,000, and took a mortgage thereon, dated the same day, and recorded on the 10th day of January, 1891, for security for its repayment. Before making the loan, the plaintiff mado inquiry as to the title to the property, and as to incum-brances upon it, and was assured that there was no lien or incumbrance upon the property, and that there was no outstanding contract wherefrom any lien or incumbrance could arise. Kennedy had recently built the mill, which was still unfinished and substantially without machinery. Afterwards he put in it machinery which he bought of the appellant.</p> <p>The appellant is a manufacturer of sawmill machinery, at Eau Claire, Wisconsin. Between the 14th day of February, 1891, and the 4th day of May, 1891, it manufactured for, and sold and delivered to, Kennedy, sawmill machinery to the amount and value of $5,259.25, which was put into the mill and became a part thereof. This machinery was manufactured and furnished to Kennedy pursuant to a verbal order or agreement made about November 5, 1890, whereby appellant agreed to manufacture the machinery and ship it as ordered. The appellant commenced immediately to manufacture the machinery, and had some of it completed before the date of plaintiff’s mortgage, and manufactured and shipped it all as ordered and previously agreed upon. The appellant filed its petition for a mechanic’s lien October 26, 1891, claiming $4,259.25.</p> <p>The plaintiff made the appellant and other lien claimants ■defendants in his foreclosure action. The appellant set up its claim of lien, which it claimed to be prior and paramount to the lien of plaintiff’s mortgage. The trial court decided against this claim, holding the plaintiff’s mortgage to be the prior and paramount lien, and gave judgment accordingly. From this judgment the appeal is taken.</p> <p>argued, among other things, that the mechanic’s lien of appellant for sawmill ma- ' chinery and material, manufactured for and furnished to Kennedy under and in pursuance of the contract of November 5, 1890, to complete and equip his sawmill, theretofore commenced and then in process of erection, a considerable portion- of such machinery and material being so manufactured at the time of the execution of plaintiff’s mortgage, December 31, 1890, and a large amount thereof being so manufactured and completed at the time of the recording thereof, January 10, 1891, and all of such machinery and material having been used in the completing and equipping of said sawmill, so that the same became and constitutes a part of the freehold, though no part thereof had been delivered at said sawmill until nearly two weeks after the /recording of such mortgage,— attached to the one acre of land, upon which the mill is situate, from the date of the commencement of such sawmill, September 1, 1890, and is superior and paramount to plaintiff’s mortgage. Sec. 3314, S. & B. Ann. Stats.; 15 Am. & Eng. Ency. of Law, 88; App-jperson v.Fa/rrelj 56 Ark. 640; Mg Crea, v. Craig, 23 Cal. 522; Ma/rston v. Kenyon, 44 Conn. 350; Haxtun 8. H. Co. v. Cordon, 2 N. Dak. 246; Monroe v. West, 12 Iowa, 119; Neilson v. I. F. R. Co. 44 id. 71; Gardner v. leak, 52 Minn. 522; Miller v. Stoddard, 54 id. 486; Merrigan v. English, 5 L. E. A. 837; Morris Co. Bank v. Bockaway Mfg. Co. 14 N. J. Eq. 189; Manhattan L. Ins. Co. v. PauUson, 28 id. 304; Hewson-Herzog 8. Co. v. Cook, 52 Minn. 534; American F. Ins. Go. v. Pringle, 2 Serg. & R. 138; PennooTc v. Hoover, 5 Rawle, 292; Hahn’s Appeal, 39 Pa. St. 409; Parrish <& Hazard’s Appeal, 83 id. Ill; Bassett v. 8warts, 17 R. I. 215; Davis v. Bisland, 85 U. S. 659; BrooJcs v. Bail-way Go. 101 id. 443; Meyer v. Hornby, id. 728; Hall v. Hinoldey, 32 Wis. 362; Lampson v. Bowen, 41 id. 484; Wis. Plcmi/ng M. Go. v. Sohuda, 72 id. 277; Mansfield’s Digest of Ark. Stats, sec. 4408. The lien for machinery may exist under three different forms: (1) Where such machinery enters into the construction, as a component part of a building, as in the case at bar, and the person ordering or purchasing such machinery has such an interest in the land that the lien attaches thereto, the .machinery becomes and is as much a part of the building as the walls, the doors, or any other part thereof, and a lien for such machinery is preserved and given by the provisions of the statute as they existed prior to the revision of 1S78, and attaches not to the machinery alone, but to the building and the land upon which it is situate. Donahue v. Croma/rtie, 21 Oal. 80; Stoelcwell v. Campbell, 39 Conn. 362; Beilly v. Hudson, 62 Mo. 383; Gra/y v. Iloldship, 17 Serg. & R. 413; Morgan v. Arthurs, 3 Watts, 140; Parrish & Hazard’s Appeal, 83 Pa. St. Ill; Cooper v. Oleghorn, 50 Wis. 113; Spruhen v. Stout, 52 id. 517. (2) When the machinery so furnished is and constitutes the structure itself, independent of any building, such as pumping machinery, hoisting works, etc. (3) The specific lien given, with right to remove machinery, where the person who ordered or purchased did not have sufficient title for the lien, and where the same may be removed therefrom, leaving such building or premises in as good condition as they were before such machinery was placed in or on the same.</p>

<p>Appeal from a judgment of tbe circuit court for Ashland county: JohN K. Paeish, Circuit Judge.</p> <p>In 1893 plaintiff and defendant and one P. M. Shaw were partners in business. The copartnership was dissolved January 1, 1891. In December, 1893, and after the firm had suspended doing business, plaintiff, who had possession of the books, took account of all the assets of the firm, consisting of accounts receivable, all of which were collectible and Avere afterwards actually collected, credited up to each partner his share, then drew off a balance sheet showing the condition of each partner’s account, by which it was shown that the plaintiff was entitled to $2,408.63; defendant $1,247.38; and Shaw, $1,478.17. A copy of this balance sheet and proposed adjustment of the partnership affairs, prior to January 1,1894, was sent to Shaw, and one to Bradley. About the 30th day of January, 1894, they met at Ashland, and the balance sheet referred to was before them; also, the boohs. There was no express agreement there made in respect to a settlement, or at any other time, but no objection whatever was made to plaintiff, by either defendant or Shaw, to the adjustment of the partnership matters according to the balance sheet, either at that time or at any other, prior to the commencement of this action; and it was there agreed that Shaw should collect all the balance of the accounts, and pay the same over when collected. Pursuant to this understanding, Shaw collected the accounts referred to, except $450 collected by defendant, kept the amount due himself, and paid over the balance to plaintiff and defendant in proportion to their respective shares. Defendant kept the amount —• $450 — collected by him, which, according to the division as shown by the balance sheet, belonged, $266.41 to plaintiff, and $183.59 to defendant. Defendant did not pay plaintiff any sum, except $10; leaving him indebted to plaintiff to the amount of $256.41 at the time of the commencement of the action, if there was, by reason of the facts, a settlement between the parties, as plaintiff claims.</p> <p>The only issue tried and submitted 'to the jury is whether there was a settlement, so as to entitle plaintiff to maintain an action at law against the defendant. The instructions given by the court on the subject were all excepted to. The jury rendered a verdict in plaintiff’s favor. Defendant moved to set aside the verdict and for a new trial. The motion was overruled, and judgment was entered in plaintiff’s favor, from which this appeal was taken.</p> <p>cited 1 Wait, Act. & Def. 191; 6 id. 42é; Lockwood v. Thorne, 18 N. T. 286; 17 Am. & Eng. Ency. of Law, 1267, and note 6.</p> <p>cited 1 Wait, Act. & Def. 193, 194; 1 Am. & Eng. Ency. of Law, 113, 116; 17 id. 1285, 1286, note 1; 1 Story, Eq. Jur. § 526; Lockwood v. Thorne, 18 N. T. 286; Stenton v. Jerome, 54 N. T. 480, 484; Engfer v. Roomer, 71 Wis. 11,14; 1 Bates, Partnership, § 330; 2 id. §§ 860, 954; Parsons, Partnership, 281, 519, 520; Heartt v. Cornieig, 3 Paige, 566.</p>

<p>Appeal from a judgment of the circuit court for Bayfield county: John K. PaRish, Circuit Judge.</p>

<p> Excise laios: License fee: Voluntary payment: Recovery bach. </p> <p>A voluntary, partial payment of the license fee, before action on his application for a license to sell liquors, was converted from a mere ' deposit into a compliance with a condition precedent by the acts; of the applicant in immediately commencing the business and con- ■ t-inuing it for several weeks; and the amount paid cannot be recovered back merely because he was unable or unwilling to comply with all the conditions.</p>

<p>Appeal from a judgment of the circuit court for Oneida county: Chas. Y. BabdeeN, Circuit Judge.</p> <p>The action is brought to recover damages for the alleged wrongful ejectment of plaintiff’s decedent from defendant’s train. Frank Gillen, on July 11,'1893, boarded one of defendant’s accommodation trains, at Cavour. ITe paid the regular fare from Cavour to Pembine, to the conductor, on the train. The conductor gave him no ticket or other evidence that he had paid his fare. At the station at Armstrong Creek, and before reaching Pembine, the train upon which ■Cilleu was was delayed and put upon a side track. After-Avards another mixed train, going towards plaintiff’s destination, came- along, and took the car in which he was, and proceeded on its way. The conductor of this train demanded of Gillen a ticket or his fare. For his failure to produce either, the train A\Tas stopped and Gillen at the conductor’s command went off. The place Avas more than a mile from any house, and betAveen three and four miles from Armstrong Creek station. The day was rainy. Through •a drenching storm Gillen returned to the station. The same night he was carried to Pembine, by the same train and conductor Avith whom he had started in the morning, and without further payment of fare.</p> <p>' Gillen Avas subject to inflammatory rheumatism. He ■claims that his exposure to the storm and wetting brought on an attack of rheumatism; that he suffered from it a long time, and did no work; that he supposed that it was the wetting Avhich caused the attack of rheumatism, but does not know. He AAras not sick, nor confined to his house, made no complaint, and had no medical attendance or advice. His neighbors and familiars noticed no difference in his appearance or conduct. There was no evidence to show loss of time from his business or employment; no expense of nursing or medical service. There was no ground for substantial damages other than physical and mental suffering. It was not a case for exemplary damages. The charge ■of the trial court was to this effect. The jury assessed the plaintiff’s damages at $1,500. As a condition against the granting of a neAV trial on the ground that the damages were excessive, the plaintiff remitted $750 from the verdict, .■and had judgment for $750, from which the defendant appeals. Since the appeal was taken, Gillen has died, and his .administratrix has been substituted as respondent herein.</p> <p>To the point that the damages were ■excessive, they cited Patten v. O. <& W. W. B. Go. 32 Wis. 524; Goodno v. Oshkosh, 28 id. 300; Spicer v. O. <& Ff. W. B. -Co. 29 id. 580; Gorcoranv. Harran, 55 id. 120; Texas da P. P. Go. v. Doherty, 4 Tex. App. Civ. Cas. 231; Phettiplace v. Ff. P. B. Go. 84 Wis. 412; Finch v. N. P. B. Go. 47 Minn. •36; McLean v. C., St. P., M. da O. B. Go. 50 id. 485.</p> <p>On the question of ■damages, they cited Wightmcm v. G. dé Ff. W. B. Go. 73 Wis. 169; Phettiplace v. Ff. P. B. Go. 84 id. 412; Bass v. .0. db Ff. W. B. Go. 42 id. 654; Gralcer v. O. da Ff. IP". B. Go. 36 id. ■657; Stutz v. G. da W. W. B. Go. 73 id. 147, 152; Smalley v. Appleton, 75 id. 18 ; Kwigv. Oshkosh, id. 517; Spicer v. O. <& Ff. IF". B. Go. 29 id. 580; Pat/ry v. O., St. P., M. <& O. B. Go. 77 id. 218; S. G. 82 id. 408; Goodno v. Oshkosh, 28 id. 300; ATc-Donald v. Ashland, 78 id. 251; Bridge v. Oshkosh, 71 id. 363; Minton v. Gream City B. Go. 65 id. 323; Waterman v. C. da A. B. Go. 82 id. 613; Heddles v. O. da N. W. B. Go. 77 id. 228; Berg v. G., M. da St. P. B. Go. 50 id. 419.</p>

<p> Master .and servant: Injury to minor employee in sawmill: Assumption of rislc: Evidence: Instructions to jury: Special verdict: Damages: Loss of time during minority: Waiver of father's rights. </p> <p>1. Plaintiff, a boy sixteen years old, employed as oiler in defendant’s sawmill, was injured while attending to a hot box by having his hand caught in an unguarded gear wheel which was revolving rapidly close to the farther side of the bridge tree upon which the box rested. Upon the evidence — showing that he was used to sawmills and was unusually bright and intelligent about machinery, but showing, also, among other things, that his work was performed at night; that his ordinary task was to oil the machinery when not in motion;, that the box about which he was engaged was almost out of his reach, so that he had to stand on his tiptoes and steady himself on the bridge tree with one hand while he felt of the’ box with the other; that the box was in the shadow: and that his duties were such as necessarily to draw his attention to the condition of the box and not to the proximity of the wheel — it cannot be said, as matter of law, that he knew and as- . sumed the risk.</p> <p>•2. Ordinary care was properly defined in such a case to be “ such care ' as boys of his age, intelligence, and experience usually use and exercise under similar circumstances.” Duthie v. Washburn, 87 Wis. 283, distinguished. °</p> <p>A Evidence in such case that the light was a considerable distance from the box, and that there was a shadow over the box, was admissible as part of the res gestee and as bearing on the questions' whether plaintiff assumed the risk and whether defendant was-negligent in not guarding the wheel and in not warning the-plaintiff of the danger, although the complaint did not charge insufficiency of light as a ground of negligence.</p> <p>4. The special verdict in such a case, in order to sustain a recovery,. should include a direct finding of negligence on the part of defendant and that such negligence was the proximate cause of the' injury. A finding that defendant ought to have known that there was danger to a minor employee like the plaintiff, while using ordinary care in performing his duties, getting his hand in the' machinery and being injured, was not sufficient.</p> <p>5. Under the circumstances of this case the court should, on defendant’s request, have submitted in the special verdict a question as-to whether the injury was the result of an accident occurring: without negligence of either party.</p> <p>6. In an action for personal injuries, an instruction that plaintiff might recover for the pain and suffering which he was “likely to endure in the future,” resulting from the injury, was erroneous.</p> <p>[7. In an action by a minor for personal injuries, the complaint claimed the value of time lost during minority, and evidence on the subject was not objected to, although there ivas no proof of emancipation. Plaintiff’s father was his guardian ad litem, and after the verdict filed a waiver of all rights of action for loss of plaintiff’s services during his minority. Whether, under such circumstances, a recovery by the minor for loss of his1 time and loss of ability to earn money during his minority could be sustained, is not determined.]</p>

<p>Counties: Division: Apportionment of assets, etc.: Taxes subsequently collected: Award of commissioners: Statute construed.</p> <p>Ch. 150, Laws of 1898, creating the county of Yilas from a part of the territory of Oneida county, and attaching another part of said territory to Iron county, provided in sec. 7 for an apportionment among the three counties of the assets and liabilities of Oneida county, to he finally settled by a commission as therein directed. Sec. 8 provided that the act should not affect the collection of taxes assessed for the year 1892 in Oneida county, which should be made by the treasurer of that county, but that the delinquent taxes collected before the tax sale of 1893 upon lands situated in Vilas and Iron counties, and the proceeds of all tax certificates of said sale upon lands s<? situated, bid in at the sale, should be paid over by the treasurer of Oneida county to the treasurers of Yilas and Iron counties, respectively, on or before June 1, 1898, etc. Held, that the provisions of sec. 8 were mandatory and entirely independent of the provisions of sec. 7, and that an award of commissioners appointed under sec. 7 could not be pleaded in bar to a proceeding by mandamus to compel payment by the treasurer of Oneida county according to sec. 8.</p>

<p>Taxation: Equity: Illegal and unjust increase of valuation by board of revieiv: Reassessment: County board: Aid to agricultural society: Town exercising poioers of village. • .</p> <p>1. An. assessment in a town was substantially just and equitable, although the property was valued at less than its real value. The board of review, without evidence, increased the valuation of plaintiffs’ property more than thirty-eight per cent, and the valuation of all other property less than seven per cent. Held, that this rendered the tax on plaintiffs’ property not only illegal but also inequitable and unjust, and entitled them to relief.</p> <p>2. It was not necessary in such a case to order a reassessment under sec. 1210b, S. & B. Ann. Stats., since the amount which plaintiffs justly ought tq pay could be ascertained from the assessors’ original roll.</p> <p>. 3. A county board has no power to levy a tax to aid an agricultural' society, except, as provided in subd. 0, sec. 669, R. S,, for the purpose of purchasing land to be used for holding fairs, etc.</p> <p>4 A tax levied for a purpose which is not within the taxing power under any circumstances is necessarily inequitable as-well as illegal.</p> <p>5. Where, under a resolution adopted pursuant to sec. 819a, S. & B. Ann. Stats., conferring village powers on a town, waterworks had been constructed for a village in the town, a tax levied in a subsequent year for the waterworks, either to pay operating expenses or to pay a part of the debt incurred in building tliem, was not • rendered unjust or inequitable by the mere irregularity of a failure to readopt said resolution, even conceding that it should have been readopted before the tax was levied.</p>

<p>Appeal from au order of the circuit court for Lincoln Gounty: Chas. Y, BaedebN, Circuit Judge.</p> <p>Action for personal injury sustained by the plaintiff while in the employ of the defendant in its sawmill. He was of full age at the time of the injury, and had been at work for the defendant in its mill for about twenty days. The case was here upon a former appeal from a judgment in favor of the plaintiff, which was reversed and a new trial granted for the reason that the findings of the jury were contradictory'. 87 Wis. 245. The general facts of the case, as well as the former verdict, are there stated.</p> <p>Upon a subsequent trial the jury returned a special verdict, in substance: (1) The location, situation, and surroundings of the saw by which the plaintiff was injured, and the extent to which it was uncovered and exposed, were known to the plaintiff prior to the time of his injury. (Answered by the court.) (2) The defendant did not exercise reasonable and ordinary care in keeping the saw upon which plaintiff was injured in the position and condition in which it was at the time of the injury. (3) Such want of ordinary care was the direct and proximate cause of the injury which the plaintiff sustained. (4) The plaintiff knew, or ought reasonably to have known, that while performing his duties in the mill there was danger to be apprehended from his accidentally slipping and being injured by the uncovered condition of the saw. (5) The injury which the plaintiff received was the result of an accident occurring without the want of ordinary care of either party. The damages sustained by the plaintiff were assessed at $2,236.56.</p> <p>The defendant’s counsel moved for judgment on the verdict, dismissing the action with costs. The plaintiff’s counsel moved to set aside the verdict and for a new trial for the reason, among others, that the verdict was inconsistent and that the defendant was not entitled to judgment thereon. The court made an order setting aside the verdict and granting a new trial, from which the defendant appealed.</p>

Y. BardeeN, Circuit Judge. The action is upon the defendant’s indorsement of a promissory note made by one James Sweeney to the plaintiff,. January 5, 1893. The plaintiff is a bank at Eifield, Wis. On May 10, 1889, it held notes against Sweeney amounting to near $4,200. On one of these notes (a note of $500) the defendant was accommodation indorser. On that day the plaintiff took renewals of Sweeney’s notes, and a chattel mortgage from Sweeney to secure them.

<p> Construction of statutes: Tax titles:' Purchase of tax certificates by county treasurer: Division of county. </p> <p>1. Where the words of a statute express clearly the sense and intention there is no room for the application of rules for judicial construction.</p> <p>2. Sec. 1143, S. & B. Ann: Stats.,— making it unlawful for a county treasurer to purchase, directly or indirectly, property sold for taxes at any tax sale, or any tax deed held by the county or by any other person, “ except for and on behalf of the county, as provided by law,” or to be “ directly or indirectly interested in the purchase of property sold as aforesaid, at any such tax sale, or in the purchase of any tax certificate or tax deed, except as hereinbefore provided,”— applies to all tax certificates issued by his county, whether issued during his incumbency of the office or otherwise, and whether purchased of the county or of some vendee of the county.</p> <p>3. But where territory is detached from one county and created into a new county by an act providing that all tax certificates held by the old county on lands situated in the new county should be assigned to such new county, the county treasurer of the old county is not prohibited by sec. 1143, S. & B. Ann. Stats., from purchasing such certificates after they have been so assigned, they being then governed by the same rules as if they had been issued by the new county.</p>

<p>, Appeal from a judgment of the circuit court for Lincoln county: Chas. Y. BaedeeN, Circuit Judge.</p> <p>The plaintiff was a lumber manufacturer and dealer. It had in its yards at Merrill, Wis., a quantity of lumber piled for the classes known as “ C select and better,” and “ shop and flat.” Mr. Green, an employee of defendant having authority to examine and negotiate for the purchase of lumber, visited plaintiff’s place of business on behalf of defendant, and made a casual examination of the lumber referred to, a small amount being taken from the piles for that purpose. He wanted to make a purchase on behalf of his company on grades, but was informed plaintiff desired to sell “pile run.” At this time two car loads of the lumber were ordered, and thereafter shipped to the defendant, and unloaded and examined at its yards in Oshkosh. Thereafter, and about two weeks after Mr. Green’s visit to plaintiff’s'yards, and without any knowledge of the lumber except what was then obtained and the examination of the car loads referred to, a contract was made between plaintiff and defendant as follows :</p> <p>“ Oshkosh, Wis., Jan. 16th, 1892.</p> <p>“ T. B. Soott lumber Go., Merrill, Wis.</p> <p>“Dear SiRs: Please ship the following lumber to Eoster-Hafner Mills at this city, and invoice the same to Jlafnet-Lothman Manufacimring Compa/ny of St. Louis, Mo., in duplicate to this office, viz.:</p> <p>“ 200,000 feet If inch, piled for 0 select and better, to be thick enough to S. 2 S. If inch.</p> <p>“ 215,000 feet If inch, piled for 0 select and better, to be thick enough to S. 2 S. If inch.</p> <p>“ 25,000 feet 2 inch, piled for 0 select and better, to be thick enough to S. 2 S. If inch.</p> <p>“ 230,000 feet If inch, piled for shop and flat, to be thick enough to S. 2 S. If inch.</p> <p>“ 1,880,000 feet If inch piled for shop and flat, to be thick enough to S. 2 S. If inch.</p> <p>“ 180,000 feet 2 inch, piled for shop and flat, to be thick enough to S. 2 S. If inch.</p> <p>“In all, 2,190,000 feet. Total at the uniform price of $21.25 per M. feet, f. o. b. cars here. All the above lumber to be of the cut of 1891, and now being in piles at your mill-yard premises at Merrill, Wis., And begin shipping the above lumber on or before January 20th, 1892, and the final shipment to be made not later than June 1st, unless by mutual consent. We will make payments for the same as follows, viz.: All the lumber shipped on this order during each of the months of January, February, March, April, and May, 1892, shall be considered as shipped on the last days of these months, and we will give our acceptance at sixty days on the last day of each month for the total amount of the shipment of each of the said months; it being understood that we do not have the privilege of the usual cash discount, unless by your consent. It also being understood that worthless mill cull lumber is not to be accepted on this-order.</p> <p>“ The above order is accepted for the T. B. Seott Lumber Company by Z. J. Graham.</p> <p>“ HafNer-LothmaN Mfg. Co.,</p> <p>“ Per C. Fostbe, Y. Pres.”</p> <p>Thereafter, during the months of January, February, and March, plaintiff shipped, under the contract, seventy-four car loads, sixty-eight of which were received and unloaded by defendant, and the balance rejected, which plaintiff was obliged to ship to Milwaukee for sale. On the 26th day of March, 1892, defendant notified plaintiff that it would not receive any more lumber, and thereupon plaintiff notified defendant that it would proceed to resell the remainder on the best terms obtainable, and hold defendant liable for the loss.</p> <p>Plaintiff claims that the lumber was purchased as piled in the yard at the prices stipulated in the contract. Defendant claims that it purchased strictly on grades, viz. “ 0 select and better,” and “ shop and flat,” and that, as plaintiff insisted on shipping on the theory that the purchase was made pile run, worthless mill culls only excepted, it had a right to rescind the contract, which it did. The trial court found in plaintiff’s favor, and awarded $50 for extra expense of selling lumber shipped to Milwaukee; and $1 per thousand on all lumber not shipped up to the time of defendant’s refusal, as damages. Judgment was rendered in plaintiff’s favor, from which this appeal was taken.</p>

<p> Brokers: Sale of land owned by tenants in common: Commissions. </p> <p>Beal estate brokers who were employed by one of several tenants ire common to find a purchaser for their land, and who brought about a sale, are not entitled to a commission thereon from another of the cotenants who had not authorized such employment and, until after the sale was completed, neither knew that they were rendering or had rendered him any services nor had any knowledge of facts which should have put him upon inquiry.</p>