Volume 92 — Wisconsin Reports

<p>Appeal from a judgment of the circuit court for Lincoln county: Chas. Y. BabdeeN, Circuit Judge.</p> <p>On January 4, 1892, the plaintiff and defendant entered into a written contract, wherein and whereby the plaintiff agreed to cut and bank all the pine timber standing, lying, and being on the seven forties therein described, and bank the same on Storm Lake, at or near a place therein named, and bankéd so as to admit of booming for driving purposes. The defendant agreed to pay for the same $3 per thousand feet, at the time and in the manner therein prescribed. The work was to 'be done during the logging season of 1892, if not delayed as therein indicated.</p> <p>On November 30, 1892, the plaintiff commenced this action, and in his amended complaint alleges, in effect, that the defendant falsely represented that the quantity of timber on said lands was 1,500,000 feet; that the plaintiff entered into the contract relying upon such representations; that the plaintiff cut and banked off of six forties of said land 415,081 feet; that the defendant had no title to the other forty, and the plaintiff refrained from cutting thereon by direction of the defendant; that there were 115,000 feet on that forty; that if the timber had been as represented by the defendant the plaintiff would have made $1 per thousand feet profit on the contract; that by reason of the defendant’s false representations the plaintiff was damaged $1,926. The defendant answered by way of admissions, denials, and counter allegations, and also set up a counterclaim of $628.77. The plaintiff, by reply, took issue with the several allegations of the counterclaim.</p> <p>At the close of the trial the jury returned a special verdict to the effect that the defendant, before the execution and delivery of the written contract, did make statements to the plaintiff that there were 1,500,000 feet of timber on the lands described therein, and that it would run nine logs to the thousand feet; that such statements were positive representations as to the quantity and size of such timber, and were made by the defendant for the purpose of inducing plaintiff to enter into said contract, and with the intent to deceive the plaintiff; that the defendant did know, or ought reasonably to have known, that such statements were untrue; that, had there been 1,500,000 feet of timber thereon, running not more than nine logs to the thousand feet, it would have cost the plaintiff $2 per thousand.</p> <p>The court thereupon ordered judgment in favor of the plaintiff for $1,500, together with two items, admitted and found by the jury, amounting to $51, less the amount of the defendant’s counterclaim of $628.77. From the judgment entered accordingly the defendant appeals.</p> <p>To the point that evidence of defendant’s statements to third parties as to the amount of timber was inadmissible, they cited U. S. L. Ins. Go. v. Wright, 33 Ohio St. 533; McKay v. Russell, 28 Am. St. Eep. 44; Gate Oity L. Go. v. Heilmam, 80 Iowa, 477; Ever-ting v. Holcomb, 74 id. 722; Baker v. Ashe, 80 Tex. 356; McEacheram v. Western T. <& G. Go. 97 Mich. 479; Kelley v. Schwpp, 60 "Wis. 76; Kamfer v. Walsh, 88 id. 63.</p>

<p> Sale of logs: Scale fairly made: Rescale by person not agreed upon: Contract construed: Waiver. </p> <p>1. In an action upon a contract for the sale of logs which were to be paid for according to the scale made by one M. unless a rescale was made as therein provided, the evidence (stated in the opinion) is held to sustain a finding that M.!vs scale was fair and honest and made in the usual and customary manner.</p> <p>2. The contract provided that the logs might be rescaled by a competent scaler acceptable to both parties and appointed by the district scaler. Upon the evidence — showing, among other things, that the vendor was never informed of any desire or intention to have a rescale made, nor consulted in any way as to the selection or employment of the scaler; that he did not know that a rescale was being made until about a third of the' logs had been sawed; that he then saw that one S., an employee of the corporation of which the vendee was president, was scaling the logs in question, with others, as they came to the mill, in the usual way, but did not know that this was claimed to be a rescale under the contract or that S. had been recommended for that purpose to the vendee by the district scaler; that he afterwards sent a man to the mill to see how the logs were running, but the latter made no report as to how his scale agreed with that made by S. — -it is held that there was no rescale accor’ding to the contract, and no waiver by the vendor of the stipulations in respect thereto.</p>

<p>(1) Foreign judgment: Authentication. (3-4) Partnership: Judgment against one partner, when releases others: Nonresidents: Evidence: Mistake in name. (5) Service of summons: Return. (6-10) Costs:. Items allowable.</p> <p>1. Where the judge of a court of record in another state is also ex officio clerk thereof, its judgment may be authenticated, under sec. 905, B. S. of U. S., by a single certificate in proper form signed by him in each capacity.</p> <p>3.A judgment against one partner for a firm debt releases the other partners so that no new action can be maintained upon it against them, unless they were nonresidents and so situated that service could not be had upon them in the state in which such judgment was recovered.</p> <p>3. The burden of proving nonresidency in such a case is upon the party asserting it;, and it is not shown by the return of the sheriff of the county in which the original action was brought that a defendant was “not found ” in said county.</p> <p>4. A mistake, in the original action, in the Christian name of one of the partners upon whom the summons was not served does not in any way alter the effect of the judgment as a release of another partner upon whom there was no service.</p> <p>5. The return upon a summons to the effect that it was served upon J. D. M. on May 1, and upon J. M. on May 3, by delivering to and leaving with them a certified copy thereof, sufficiently shows that a copy was delivered to each of said defendants.</p> <p>6. Where leave to amend his answer is granted as a favor to a defendant no allowance should be made to him, in the taxation of costs, for the amended answer or for the notice of motion for leave to amend, or for the affidavit on which such motion was founded.</p> <p>7. A term fee was properly allowed, in the taxation of costs, for a term at which the successful party had obtained a continuance on terms.</p> <p>8. The state suit tax is not a proper item in the defendant’s bill of costs.</p> <p>9. Witness fees of a nominal party to the action, who has but slight, if any, interest in the result, are properly taxable.</p> <p>10.The cost of the exemplification of the record of a foreign judgment, important in the case, is properly taxable.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: John K. Paeish, Circuit Judge.</p> <p>The plaintiff brought this action against the defendant to recover a balance of $2,030.45, and interest from May 15, 1893, alleged to be due under a written contract between the parties, and for extra work and materials.</p> <p>By the contract made December 29, 1892, the plaintiff agreed to make and compound a certain marine engine, and to build and maufacture for it a certain marine fire box boiler, and put the same on the foundation in the defendant’s steam barge, D. W. Powers, at Sheboygan, Wis., according to certain specifications, to pass inspection for 140 pounds steam, and “ do any other work not mentioned which would properly come in putting new boiler in boat; ” and, among other things, “ to make new valve stems and necessary connections to work high-pressure valves, refit old link and eccentric rods, necessary drain cocks and pipes for cylinders, new high-pressure exhaust pipe, refit present steam pipe,” etc., “ in fact, all pipes from boiler to engine that have to be changed on account of new boiler and engine, and one exhaust shifter,” for the sum of $6,340, “ to have all finished by April 15, 1893, and to have all machinery in boat so that carpenters can complete cabins by April 1, 1893. All work to be done in a good and workmanlike manner. In case all work is not finished by April 15, 1893, [the plaintiff] to pay $50 per day for each day the boat is delayed; ” and that, “as regards the date of finishing and fine, this contract is made to include the work of compounding the engine as well.”</p> <p>The defendant, it was alleged, agreed to deliver, the said barge in the city of Sheboygan to the plaintiff January 4, 1893, in such condition that it would not be delayed in the performance of its said contract. The plaintiff claimed that it was delayed in the performance of its contract by the failure of the defendant to deliver the barge at the time aforesaid ; and that it was not delivered until about the middle of January, 1893, in a leaky and unseaworthy condition, a great quantity of ice and water being in the hold and engine room, making it impossible for the plaintiff to obtain the necessary measurements to build the engine and boiler specified ; and that, by reason of such delay occasioned by the act of the defendant, it was unable to complete said contract until May 16, 1893, whereby the plaintiff was occasioned expenses, in wages of employees and otherwise, to the amount and value of $100. It also claimed that defendant was indebted to it for taking out an old crank shaft and rod, and for making and constructing and placing in position a new one in and for said barge, at the agreed price and value of $475, which was completed May 12,1893; and that the defendant was further indebted to it in the sum of $115.45 for extra work and labor and materials used in repairing and putting in good operating shape the .engines and machinery in and about said barge, not expressly contracted for, the same having been done at the instance and request of the defendant,— in all, amounting to the sum of $7,030.45. Only $5,000 of this amount had been paid, and judgment was claimed for $2,030.45, with interest from May 15, 1893.</p> <p>The defendant denied the principal allegations of the complaint as to performance, and alleged, by way of counterclaim, that the plaintiff failed and neglected to perform its contract by not finishing and completing the work by April 15, 1893; that the work was not completed until thirty-two days thereafter, May 18, 1893, whereby the defendant suffered damages in the sum of $1,600, at $50 per day that said boat was delayed; further, that it was delayed four days more at Charlevoix before being delivered to the defendant, to its damage of $200, and also one day at Detour, to its damage in the sum of $50. Eor a further and separate counterclaim, defendant claimed that plaintiff was indebted to it in the sum of $100, paid by the defendant for a tug to get the said boat off St. Martin’s Reef, where the same had been run ashore through the failure and neglect of the plaintiff to perform its contract, and for the further sum of $11, for moneys paid by the defendant at the special instance and request of the plaintiff in moving said boat to the railroad dock at Sheboygan, and pumping up its boiler. The ,defendant alleged a further counterclaim for the failure and neglect of the plaintiff to perform its work in the contract specified in a good and workmanlike manner, to its damage in the sum of $2,500; the said claims amounting in all to $4,461, for which it demanded judgment.</p> <p>The plaintiff replied to said counterclaims, denying the same, and alleging that it was delayed in the commencement and completion of the said contract by the failure and neglect of the defendant to deliver said barge at the time it was agreed upon, and to have the same free from ice and water; that defendant delayed the same a long time, and, when delivered, the barge was so filled with ice and water that plaintiff was put to great expense in removing the same, and it was thereby delayed in the completion of its said contract for thirty-two . days, so that the defendant became indebted therefor in the sum of $1,600, being $50 per day; and the plaintiff alleged that the contract was completed and accepted May 16, 1893.</p> <p>There was a special verdict, in substance as follows: (1) The contract price for doing the work provided for in the contract was $6,340. (2) The agreed price for removing the old crank shaft and rod, and placing new one in the barge mentioned, Avas $415. (3) There had been paid on said contract by plaintiff to defendant $5,000. (4)' The plaintiff kneAV the condition that said barge was in at the time of making said contract. (5) The defendant did not deliver the barge at Sheboygan in a reasonably good condition. (6) The defendant did not deliver said barge at Sheboygan within a reasonable time after the contract was made. (7) The plaintiff was delayed by reason of defendant’s delivering the barge in such bad condition twenty days. (8) It was not any part of plaintiff’s contract to put in valve-stem guide which broke soon after said barge left Sheboygan. (9) Said barge was necessarily delayed by the breaking of said valve-stem guide four days. (10) The reasonable value of the use of said barge, .with her crew and equipment, was $100 per day. (11) Said barge was delayed after April 15, 1893, at Sheboygan, by plaintiff’s failure to complete said work, thirty-one days. (12) The reasonable value of said barge per day without her crew was $40.50. (13) The plaintiff performed its part of said contract in a good and workmanlike manner. (15) The plaintiff’s extra work and materials were reasonably worth $88.05. (16) The plaintiff is indebted to the defendant in the sum of $6, paid by it at plaintiff’s request for moving said barge to the railroad dock at Sheboygan. The first three findings were by the court.</p> <p>. The plaintiff moved for judgment upon the special verdict for $1,457.55, with interest from May 18, 1893; that is to say: For the contract price, $6,340; for removing the old crank shaft and rod, etc., $475; and for extra work, $88.05,— amounting to $6,903.05; deducting $5,000 paid, leaving a balance of $1,903.05; deducting, also, from this the value of the barge per day, at $40.50, for eleven days, $445.50, leaving the said sum of $1,457.55. The defendant at the same time moved that findings Nos. 5 and 7 be stricken out for immateriality, and that the eighth finding be stricken out and answered by the court, on the ground that it involved a question of law for the court and not of fact for the jury. The defendant also moved the court for a judgment on such verdict in favor of. the defendant, and against the plaintiff, for $19.42, with costs, etc. The court struck out findings Nos. 5 and 7 as immaterial and irrelevant, and changed the eighth answer from a negative answer to an affirmative one, and changed the twelfth finding from $40.50 to $50, for the reason that, under the contract and the undisputed evidence, such should have been the findings. The court made an order sustaining the defendant’s motion, and for judgment in its favor for $19.42 for which judgment was given against the plaintiff, with costs, etc. From this judgment the plaintiff appealed.</p> <p>They argued, among other things, that the $50 “fine” for each day’s delay could not be' upheld as liquidated damages. It was a penalty pure and simple, not only as a matter of law but made so by the express terms of the contract, and therefore for any delay, if there was any, caused by the plaintiff’s negligence, the defendant could only recover the actual damages sustained, and in this case that would be a fair rental value of the boat unequipped. Pierce v. Jung, 10 Wis. 30; Fitzjpat/rick v. Oottingham, 14 id. 219; Laubenheimer v. Mann, 19 id. 519; Fenner v. Harmnond, 36 id. 271; Lyman v. Par-cook, 40 id. 503; Dullaghan v. Fitch, 42 id. 679; 1 Suth. Dam. 478,489; Golwell v-. Lawrence, 38 N. Y. 71; Hill v. La/wrence, 109 Ind. 564; Brown v. Foster, 51 Pa. St. 165; Brownell cfi Go. v. Oha/pmm,, 84 Iowa, 504.'</p> <p>They contended, inter alia, that it is evident from the whole con-i tract and surrounding circumstances that this was no fine or penalty. It was an agreement as to the rental value of the boat, made as much for the protection of the plaintiff as for the defendant. It was clearly the intent of the parties to fix this sum as liquidated damages, and the use of the word “ fine ” as it is used in the contract' is of but little force in determining its meaning. Yenner v. Hammond, 36 Wis. 282; Lyman v. Babcock^4A id. 517; Hall v. Growley, 5 Allen, 304; Folsom v, McDonough, 6 Cush. 208; Wa/rd v. Hcdson River B. Oo. 5 N. Y. Supp. 319, 125 N. Y. 230; Worrell v. McOlinaghan, 5 Strob. 115; Gurtis v. Brewer, 17 Pick. 513. See, also, Harm.omy v. Bingham, 12 N. Y. 100; Young v. White, 5 Watts, 460; Sanford v. First Nat. Bank, 63 N. W. Rep. 459; Standard B. F. Oo. v. Breed, 163 Mass. 10; De Graff, V. & Oo. v. Wickham, 89 Iowa, 720; Monmouth P. Asso. v. Wallis L Works, 55 N. J. Law, 132.</p>

Y. Baedeeh, Circuit Judg§. The complaint alleges'that the defendant the Merrill Fv/r-nihire Com,pony is a domestic corporation; that on November 7, 1893, it made a voluntary assignment for the benefit of its creditors to the plaintiff; that previously to the making of such assignment, on June 1, 1893, the officers of the corporation had executed, in the name of the corporation, four several mortgages, to secure several tona fide debts, aggregating nearly $8,000, due to…

<p>Appeal from a judgment of the circuit court for Jackson oounty: FeaNK M. Fish, Judge.</p> <p>Action upon a note. The plaintiff, owning a promissory judgment note, with warrant of attorney attached, made by Hugh H. Price and the appellant, Jones, caused judgment to be entered on cognovit, against both makers, April 10, 1895. Afterwards, on application of Jones, the judgment as to him was opened, and by leave of the court he filed a separate answer, stating — first, that he was an accommodation signer of the note, with the knowledge of the plaintiff, and that the plaintiff had extended the time of payment thereof without his knowledge or consent; second, that he had been induced to sign the note through fraud on the part of Price and plaintiff, in representing to him that Price was solvent and able to meet the same, when in fact Price was entirely insolvent at the time of the making of the note.</p> <p>It appeared on the trial that the indebtedness for which the note was given was originally an indebtedness of Hugh H. Price, and that appellant, Jones, was originally simply a surety for such indebtedness. The note in suit was for $3,500, $3,000 of which was borrowed in February, 1888, and $500 in July, 1889. The notes representing these two loans were all signed by Price and Jones, and they were renewed from time to time by new notes for sixty or ninety days, down to January 10, 1893. During this time, Price was president of the plaintiff bank, until January, 1891, when he was succeeded by ~W. T. Murray; and Jones was a director of the bank continuously from 1889 to 1894, and was an active member of the examining committee of the bank during the year 1893. The last renewal before the note in suit was the note of January 10,1893, payable sixty days after date. It was not paid when due, and was held by the bank, which refused to renew it until July 12, 1893, when the note in suit was given. In April, May, and June, 1893, several interviews were had between the bank officials and Price and Jones with regard to Price’s financial condition, and as to what should be done with this note; but the matter remained unsettled until July 12, 1893, when the demand note in suit, with warrant of attorney attached, was given, signed by Price and Jones. There was testimony strongly tending to show that Price did not ask for or desire any extension of time, but tbat tbe bank accepted tbe note in suit at tbe request of Jones alone and for bis accommodation, solely upon tbe representation tbat it would break bim up in business if be were required to pay tbe note of January lOtb. On November 11,1893', Price’s bookkeeper paid interest on tbe note in suit to October 12,1893, out of Price’s funds. On tbe 28tb day of December, 1893, Price paid tbe plaintiff bank interest on tbe note in suit from October 12, 1893, to January 12, 1894, and tbe same was indorsed by tbe cashier of tbe bank. Tbis last payment of interest is the payment wbicb is relied upon as constituting an extension of time'without appellant’s knowledge. It appears tbat appellant bad no knowledge of tbe last payment of interest at tbe time it was made, but it also appears tbat upon tbe following day, December 29, Jones, as a member of tbe examining committee of tbe directors of tbe plaintiff bank, saw and examined tbis note and tbe indorsement of interest to January 12,1894, tbereou, and passed it among tbe assets of tbe bank, in a report signed by bim on tbat date. Tbe evidence also showed tbat on tbe 2d of April, 1894, tbe appellant, tTones, made an effort to have bis brother go on tbis note with bim, in order to procure an extension; tbat a few days after, with bis two brothers, be signed a collateral note to secure tbe one in suit. On tbe next day, in tbe presence of appellant, bis brother directed Murray to enter judgment upon tbe note in suit, wbicb was done.</p> <p>No requests to charge were made by either party. Tbe jury returned a general verdict in favor of tbe plaintiff for tbe whole amount of tbe note, and from judgment thereon tbe defendant has appealed.</p>

<p> Judgment: Restraining enforcement: Mistake: Forgetfulness: Fraud... </p> <p>1. The fact that defendants who had a good defense to an action at-law in justice’s court, after one of them, who had the matter in. charge, had missed the train so that he could not be present at the-trial, forgot all about the action and the necessity of taking an appeal until after the time for appealing had expired, furnishes no-ground for equitable relief against the judgment therein, although such forgetfulness was caused by extensive and dangerous forest fires and the constant and unusual exertions required of defendants-in fighting such fires and protecting their property.</p> <p>2. In an action for conversion of personalty, where defendants did not appear at the trial, the fact that plaintiff, while testifying to their1 taking of the property, made no mention of a chattel mortgage-under which they rightfully took it, does not warrant equitable-relief against the judgment on the ground of fraud.</p>

<p> Insuranoe against fire: Breach of condition of policy: Waiver of forfeiture: Agent’s knowledge, when imputed to insurer: Powers of adjuster: Evidence: Judgment when companies are joined. </p> <p>1. Knowledge, by tbe local agent who issued a policy, of facts which show that a condition thereof has been broken is imputed to tbe company, so that its subsequent conduct assuming the policy to be still valid and in force will constitute a waiver of the forfeiture, especially where the insured is subjected thereby to delay or expense.</p> <p>2. Where the adjuster sent by a company to investigate the circumstances and ascertain the amount of a loss has been indued with apparent authority to require the insured to furnish a carpenter’s estimate of the loss and damage, such a requirement.by him, after the company has knowledge of facts showing the breach of a condition of the policy, constitutes a waiver of the forfeiture.</p> <p>3. Such a waiver is not prevented by a provision of the policy that 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, to the appraisal or to any examination therein provided for.”</p> <p>4. Nor is such a waiver prevented by a provision that no officer, agent, or other representative of the company shall have power to waive any provision or condition of the policy except such as by the-terms of the policy may be the subject of agreement indorsed thereon or added thereto, and that as to such provisions and conditions there shall be no waiver unless it shall be written upon or attached to the policy, and that no privilege or permission affecting the insurance shall exist or be claimed by the insured unless-so written-or attached. ■</p> <p>5. In an action upon a policy which the company claimed had been invalidated by foreclosure proceedings, the insured was asked, on-cross-examination, “ Didn’t you think at the time that the company ought to be informed of the fact that there was a judgment, of foreclosure there? ” He answered, “ I didn’t see any need of it* for I knew that Jackson [the local agent] knew it.” Held, that it was not error to refuse to strike out such answer as not responsive.</p> <p>6. The adjuster, after having required the insured to furnish a carpenter’s estimate, voluntarily paid for it himself. The insured claimed that this was done from afterthought, to avoid the effect of the requirement as a waiver; and on his cross-examination the adjuster was asked, against objection, if he did not know at the time that, in case he had put the insured to trouble and expense in getting the estimate, while he had knowledge of the foreclosure, that would make the policy good. He answered that he did know that such was the law, but that he had no knowledge of the foreclosure. Held, that as the testimony was not prejudicial to the company the error, if any, in its admission was not material.</p> <p>7. Evidence that a witness had heard plaintiff’s attorney say to another person that he had advised the insured, if the company wanted an estimate, “not to let the grass grow under his feet until he got it,” was mere hearsay and was not admissible as tending to show that the insured and his attorney were “ working for a waiver.”</p> <p>•8. Under ch; 235, .Laws of 1893, a separate judgment was properly entered against each of two insurance companies who had been joined as defendants, for the sum for which it was liable, with its proportionate share of the costs.</p>

<p> Garnishment: Chattel mortgagee: Sale before service: Fraud. </p> <p>A garnishee who sold his interest in the property, and parted with the possession and control of it, and applied the proceeds in payment of the defendant’s debt to him, before service of the garnishee summons, cannot be held liable therefor, whether the mortgage and bill of sale of the property by .the defendant to him were valid or invalid, or his possession was lawful or unlawful, as against other creditors of the defendant.</p>

<p> Injury from defective highway: Qlaim filed before notice of injury: View- and inspection: Discretion: Evidence: Instructions to jury: Contributory negligence: Damages. </p> <p>1. A claim against a town for injuries caused by a defective highway may be filed, under sec. 824, R. S., before service of the notice of; injury, etc., required by sec. 1889.</p> <p>2. Requiring the production of articles for the inspection of the jury,. or sending the jury to inspect them, are matters resting in the-sound discretion of the trial court.</p> <p>3. The condition of a wagon seat at the time of an accident being ira question, it Was not correct to charge that the seat could not have-been put in evidence except by the voluntary act of the plaintiff;, that if it had been introduced it would not itself have been evidence — independent evidence; that had it been so introduced it would have been improper for the jury to take into consideration' the physical fact as to the condition of the seat; and that they were to try the case upon the evidence and not upon their observation.</p> <p>4. The question being whether there was contributory negligence in attempting to drive over a defective place in the highway, it was error to charge, in effect, that the driver was at liberty to make such attempt unless the defect-was of such a nature that it was rashness to do so.</p> <p>5. A charge to the effect that if plaintiff’s injuries were permanent he might recover what it was reasonably to be expected he would have earned in the future, and for what suffering he might endure in the future, was erroneous.</p>

<p> Interest: Sale of chattels: Accounts stated: Demand, </p> <p>Goods were sold on open account, and statements were sent from' time to time, in which no interest was ever included. These statements were kept by the vendee without objection, and drafts were drawn upon him at intervals and paid. No other demand of payment was ever made. Held, that the statements constituted accounts stated, binding on both parties, and that in an action for a balance due no interest should be allowed except from the commencement of the action.</p>

<p>Appeal from a judgment of the circuit court for Eau Ulaire county: Feank M. Fish, Judge.</p> <p>This is an action upon a policy of insurance issued by the defendant to the plaintiff Dowling in the sum of $500, $250 of which was on his stock of wines, liquors, and merchandise, and $250 upon his furniture and fixtures, in a certain saloon in Eau Claire. The policy contained an indorsement thereon as follows, to wit: “ Loss, if any, payable to P. J. Bowlin & Co., mortgagee, as their interest may appear,”— under which name, it appears, the plaintiff P. J. Bowlin conducted business. While the insurance was in force, namely, December 9, 1893, the said property was destroyed in part, and damaged, by fire, and the total loss upon each subject of insurance exceeded the amount of the total insurance upon the property; the total concurrent insurance being $2,500, $1,250 of which was on the furniture and fixtures, and $1,250 upon the stock of wines, liquors, and saloon merchandise.</p> <p>The policy in suit was' the Wisconsin standard policy in use under ch. 195, Laws of 1891. It appeared that there was a chattel mortgage on the insured property, for $300, to Ann Dowling, the existence of which was not noticed or indorsed upon the policy. On behalf of the plaintiffs, evidence was given tending to show that the plaintiff Dowling informed the defendant’s agent fully of the existence of said mortgage, as well as the $1,000 mortgage to P. J. Bowlin & Co., at the time the policy was issued, but such evidence was objected to by the defendant. Evidence was given tending to show that proofs of loss were made and delivered to the defendant in due season, and also the amount of the plaintiffs’ damages.</p> <p>The court instructed the jury that, if the plaintiff Denoting had stated to the defendant’s agent fully the existence of these incumbrances, they would find in favor of the plaintiffs upon that issue, otherwise they would find for the •defendant; and gave the jury appropriate instructions in respect to the question of damages. There was a verdict for the plaintiffs for $500, for which amount, with costs, judgment was given against the defendant, from which the defendant appealed.</p> <p>They contended, inter alico, that it may be conceded that unless ch. 195, Laws of 1891, prohibits oral waivers of the kind in question the waiver was effectual; but that statute provides that every policy must contain the condition against incumbrances and that it cannot be waived except in a certain manner. Assuming, therefore, tha,t the act is valid, the policy in suit was null and void because there was a chattel mortgage on the prop•erty and no written agreement was indorsed on the policy to the effect that it should be valid notwithstanding the mortgage. Boxwgeois v. N. W. Nat. Ins. Oo. 86 Wis. 606. No question of estoppel arises under the statute. Both parties are conclusively presumed to know the law; and Loth parties knew, therefore, that the policy was void, there being a chattel mortgage on the property. The act of 1891 . is not invalid as an unlawful delegation of legislative power. The power delegated has respect to two separate subject matters, viz.: (1) the policy form; (2) “ riders.” In respect to the policy form, the power delegated permitted no discretion on. the part of the insurance commissioner and attorney general. The form to be prepared by them was required to conform to the Hew York form, not in so far as the officers might deem the same applicable, but “ so near as the same can he made applicable.” The power delegated was not power to make a law, for the law was complete when adopted. The Hew York form was by reference as effectually adopted as if it had been inserted at length in the act. Flanders v. Merrimack, 48 Wis. 567, 576; Kollock v. Madison, 84 id. 458, 461; Jenkins v. Morning, 38 id. 197, 201; Suth. Stat. Const. § 257. Retaliatory acts, so called (such as sec. 1221, R. S.), adopt the statutes of other states by mere reference thereto, and are uniformly held to be unobjectionable on that account. Home Ins. Go. v. Swigert, 104 Ill. 653; People v. Fire A sso. of Phila. 92 H. Y. 311; State ex rel. Baldwin v. Ins. Go. of M. A. 115 Ind. 257; Phoenix Ins. Go. v. Welch, 29 Kan. 672. The power delegated by the act was administrati/oe rather than legislative. Chicago &FF. W. P. Go. v. Pey, 35 Red. Rep. 866. An act which confers an authority or discretion as to the execution of a law, to be exercised under and in pursuance of it, is not an unconstitutional delegation of power. Chicago, M. <& St. P.' B. Go. v. Minnesota, 134 II. S. 418, 459; State ex rel. Malm v. Yowng, 29 Minn. 474; Cooley, Const. Lim. 114; Way man v. Southa/rd, 10 Wheat. 1, 40; Cincinnati, W. <& Z. P. Go. v. Olinton Go. 1 Ohio St. 77, 88; State ex rel. P. c& W. Comm, v. O., M. (& St. P. P. Go. 38 Minn. 281, 289, 300; Field v. Ciarle, 143 U. S. 649. In respect to “ riders,” the power delegated by sec. 1 of the act is not unlimited, but is expressly confined and restricted by sec. 4 of the act. The legislature may pass general laws giving to other departments, expressly or by necessary implication, discretion to employ the proper means to fill up and regulate the details for themselves and subordinates, though the exercise of that discretion be ywasi-legislative. Suth. Stat. Const. § 67; In re Oliver, 17 Wis. 681; Bryant v. Bobbins, 70 id. 258; State ex rel. Baltzell v. Stewart, 74 id. 620; Musleego v. Drainage Commlrs, 78 id. 44; Martin v. Witherspoon, 135 Mass. 175; People ex rel. M'wrphy v. Kelly, 5 Abb. N. 0. 383; Chicago c& W. W. B. Go. v. Dey, 35 Fed. Rep. 866, and cases cited; Murm v. Illinois, 94 U. S. 113; State ex rel. B. <&W. Comm, v. C., M. & St. P. B. Co. 38 Minn. 281.</p> <p>To the • point that legislative power cannot be delegated, they cited Cooley, Const. Lim. 116; Cooley, Taxation, 61; Dillon, Mun. Corp. § 96 (60); Thorne v. Cramer, 15 Barb. 112; Bradley v. Baxter, id. 122; Sarto v. Himrod, 8 N. Y. 483; People ex rel. McSpedon v. Stout, 23 Barb. 349; O’Weil v. Am. F. Ins. Co. 166 Pa. St. 72; Anderson v. Manchester F. Ass. Co. 63 N. W. Rep. 241. The two cases last cited are directly in point upon the question of the constitutionality of the standard policy law.</p>

<p> Seduction: Previous unchastity: Evidence. </p> <p>1. In an action for the seduction of plaintiff's daughter evidence of her want of chastity prior to the alleged seduction is admissible " in mitigation of damages; and such want of chastity may be shown not only by general reputation and specific acts of unchas-tity but by evidence tending to show impure conversation and improper and familiar association with men.</p> <p>S. Evidence was admissible in such a case that, prior to the alleged seduction, the daughter, in company with a man other than the-defendant, had been driven about the city, going to no particular place, in a hack with closed curtains.</p> <p>3. A question asked of the keeper of an hotel in a city other than that-in which the parties lived, as to whether oil a certain day the-daughter stopped at his hotel, was perhaps proper if merely introductory to further evidence, but is not shown to have been so.</p> <p>4. Evidence of the bad reputation of a young woman whom a witness testified he had several times seen in company with plaintiff’s daughter, in the evening and at night, going to rooms kept by young men who did not live there or have any place of business there, was admissible as bearing on the daughter’s chastity.</p> <p>•5. The daughter having testified that she had been riding with defendant several times previous to and about the time of the alleged seduction, one whom she had named as an eye-witness to one of these occasions should have been allowed to contradict her.</p> <p>'6. Defendant, having admitted on cross-examination that he had paid money to a doctor for services to the daughter at the time of her confinement, should have been permitted on reexamination to explain why he paid it.</p>

F. Bailey, Circuit Judge. Tbe facts are stated in the opinion. In the action first commenced one cause of action was upon an account for goods sold and delivered to the defendant, and the other was to recover a call or assessment upon defendant’s subscription for stock in the plaintiff corporation. The second action was to recover a second call or assessment upon said subscription.

F. Bailet, Circuit Judge. They contended, inter alia, that the insured cannot recover for injuries intentionally inflicted by another person, although the insured himself did not intend the infliction of the injuries. Fischer v. Travelers' Ins. Go. 1 L. R. A. 572; JDe Graw v. Hat. Ace. Boc. 51 Hun, 142; Travellers' Ins. Go. v. McGonkey, 127 U. S. 661; Hutohcraft's Fx'r v. Travelers' Ins. Go. 87 Ky. 300.

F. Bailey, Circuit Judge. This was an action brought against the city of Eau Claire to recover damages which the plaintiff alleged he had sustained in traveling on a highway which the defendant was bound to maintain, and which it w;as claimed was insufficient and out of repair; and, the allegations of the plaintiff having been denied, upon a trial before a jury a special verdict was found, upon which, the plaintiff had judgment for $3,000 and costs, from which the defendant…

E. Bailev, Circuit Judge. This action was commenced in Eau Claire county. The - circuit judge made an order, of his own motion, changing the place of trial to Chippewa county. The defendant moved the court of Chippewa county to change the place of trial back to Eau Claire county, on the ground that the place of trial had been improperly changed from that county. The motion was denied. The defendant appealed.

F. Bailey, Circuit Judge. On the Pith day of June, 1893, defendants, who were doing business as lumber merchants at Minneapolis, Minnesota, being indebted to the plaintiff for lumber, sent him, on account of such indebtedness, by letter addressed to him at Neillsville, Wisconsin, a check for $500 on the State Bank of Minneapolis.

Fish, Circuit Judge. This action was commenced October 7, 1893, to recover damages for personal injuries sustained by the plaintiff July 20, 1893, by reason of a collision of the wagon in which he was riding with the defendant’s electric car, caused by the alleged wilful, negligent, and reckless manner in which the defendant ran and operated its said car at the time, and without any fault on the part of the plaintiff.

<p> Highways: Abandonment. </p> <p>1. A portion of a territorial road was in form, .though without legal authority, vacated by the town board, and a new road was laid out which accommodated the travel. Thereupon the owners fenced up the vacated portion, and cultivated it for twenty-seven years, during which time no use was made or attempted to be made of it, no claim was made that it was a highway, and no money was expended on it. Held, an entire abandonment of that portion of the highway as a route of travel, within the meaning of sec. 1294a, S. & B. Ann. Stats.</p> <p>2. A country road more than half a mile in length, connecting two-other highways, is itself a “ highway,” within the meaning of said sec. 1294a.</p> <p>The discontinuance or vacation of highways by the acts of public authorities is the subject of an extensive note to Moffltt v. Brainard (Iowa) in 26 L. it. A. 821. — Rep.</p>

<p>Appeal from an order of tlie circuit court for Racine county: Fbank M. Fish, Circuit Judge.</p> <p>This was an action for a mandatory injunction to compel the defendant to build a suitable viaduct or passageway under its track across Tenth street in said city, and to restore said street to its former condition, so as not to impair its usefulness. The defendant appealed from an order overruling its demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.</p> <p>' The complaint alleged, in substance, that in 1849 section 16 in said city, being a part of the. school lands of the state, was laid out and platted as a town-site, into blocks, lots, streets, alleys, and public grounds, by the authority of the state, and a street named Tenth street, sixty feet wide, running in an east and west direction, was designated on such plat, and laid out and dedicated to the public use as a street or highway; that this street terminated at the west line of said section, but, at a point about 260 feet east of said terminus, said street was at an elevation of about fifty-two feet above the datum line or water level of Root river, in said city, and descended over a steep slope into a valley about five feet above such datum line; that said street had been kept open for public use and travel since it was so laid out, up to the present time, except that the part below the brink of said slope had never been put in a condition for travel, and had never been brought to the established grade; but that it could be put in such condition for its entire length by so grading it. In 1855 the G-reen Bay, Milwaukee & Chicago Railroad Company, incorporated by ch. 262, Laws of 1851, built and constructed its road, crossing said street at nearly a right angle about 180 feet east of its western terminus and eighty feet west of the brink of said slope; and said company raised an embankment at that point from fifteen to eighteen feet, and built its road thereon, thereby totally obstructing said street at the point aforesaid. The company, by sec. 9 of its charter, was authorized to construct said road across said street; but it was required to restore said street to its former condition, in a manner so as not to impair its usefulness, but this the company had failed and neglected to do. When the railroad was built, the west line of said section 16 was the west line of the corporate limits of the city, and the lands west of that line had not been platted or settled; but in 1876 the city limits were extended, and a street forming a continuance of said Tenth street was laid out, and dedicated for public use, and opened for travel; and a large number of dwellings now stand on and along such extension, and the grading and improvement of Tenth street have become necessary, and the plaintiff city has decided to grade the same to the established grade, and put it in condition for travel with teams, etc., but it is impossible to so grade and improve said street until said embankment is removed or a suitable viaduct is built and opened through it by the defendant. The defendant is now the owner of said railroad, and successor to all the rights and obligations of the Green Bay, Milwaukee & Chicago Railroad Company, and bound to restore said street, etc. and having been requested, March 4, 1892, by said plaintiff to build a proper viaduct and restore said street by June 1st of that year, the same being a reasonable time for that purpose, it neglected and refused so to do.</p> <p>They cited. State v. Paine Bumber Co. 84 Wis. 206; Paine Lumber Co. v. Oshkosh, 89'id. 449; Chicago, M. ds St. P. B. Co. v. Milwaukee, id. 506.</p> <p>cited State eos rel. Minneapolis v. St. P., M. ds M. B. Co. 35 Minn. 131; State ex-rel. Minneapolis v. M. ds St. L. B. Co. 39 id. 219; Fort Dodge v. M. c& St. L. B. Co. 87 Iowa, 389; Parker v. Trues-dale, 54 Minn. 241; Beitty v. Bocine, 51 Wis. 526; Mairev.. Kruse, 85 id. 302; Paine Lumber Co. v. Oshkosh, 89 id. 449;. Batch v. S. B. ds B. Y. B. Co. 50 ITun, 64; Way zata v. G'. F. B. Co. 50 Minn. 438; Latlvrop v. Cent. IB. Co. 69 Iowa,. 105.</p>

<p>(1-8) Railroads: Collision at highway crossing: Contributory negligence: Evidence: Bes gestse. (4^6) Costs: Taxation after stay of proceedings: Disbursements. '</p> <p>1. Declarations as to the circumstances of a collision between a locomotive and a carriage, made from thirty to sixty minutes thereafter by a person fatally injured in the collision, are not admissible as part of the res gestee.</p> <p>2. Whether the testimony of witnesses whose attention was called to the noise of the train, and who were listening to it, that they did not hear a signal, is “merely negative testimony” or “a mere scintilla of evidence,” may be doubted.</p> <p>3. A person driving at night on an unfamiliar road through a country which he knew was traversed by several railroads, who let the horse jog along without any attention except to see that he was-in the road, and who was killed at a highway crossing by a passing train which neither he nor the persons riding with him saw or heard until it was too late to avoid the collision, although the headlight of the engine was visible and almost directly in their faces for a considerable distance, and the noise of the train might readily have been heard, is held, as a matter of law, to have been guilty of contributory negligence, even though he did not know that there was a railway crossing at that place, and no warning was given by whistle or bell of the approach of the train.</p> <p>4. The pendency of a motion for a new trial on the minutes, which by stipulation is kept alive for argument after the term, operates as a stay of proceedings, and under sec. 2894a, S. & B. Ann. Stats., the costs may be taxed at any time after thirty days from the expiration of such stay.</p> <p>5. An application to the clerk to tax the costs before the expiration of said thirty days was properly denied as premature; but where,, on appeal from said ruling of the clerk, the court ordered the costs: to be taxed, and they were taxed under that order after the thirty days had expired, such taxation, though perhaps irregular, was-not erroneous.</p> <p>6. Costs of a successful party include his disbursements on a former trial, the verdict in which was set aside and a new trial granted on condition that he pay the costs of the other party in that trial.</p> <p>How near the main transaction declarations must be in order to constitute a part of the res gestes, is considered in an extensive note to Ohio &M.R Oo. v. Stein (133 Ind. 243) in 19 L. R. A. 733. — Rep.</p>

<p> Newspaper libel on chief of police: Liability of managing editor. </p> <p>1. A newspaper article calling policemen “hogs” and “blood sucking police officers who insist on sitting on juries,” declaring that they neglect their duties as policemen and cheat honorable citizens out of jury fees, and adding that this has no reference to the chief of police because he is beneath notice, is held an actionable libel upon said chief of police.</p> <p>2. The managing editor of a newspaper is equally liable with the proprietor and publisher for the publication of a libelous article, whether he knew of the publication or not.</p>

Fish, Circuit Judge. This action is to recover damages for the death of the plaintiff’s intestate, Edward Birch, which was caused November 4, 1893, by a collision with one of the defendant’s moving cars. The answer consists of admissions and denials, and alleges that the intestate’s death was the result of the negligence and want of care of the deceased in the management and control of the horse he was driving at the time.

<p> Criminal law and practice: Reasonable doubt: Instructions to jury: Evidence: Preliminary examination: 'Argument of counsel. </p> <p>1. The jurors in a criminal case must use all the reason, prudence, and judgment which a man would exercise in the most important affairs of life, and an instruction authorizing the use of any less degree of reason, prudence, and judgment is erroneous. Thus, it was error to charge that there is a reasonable doubt when, upon the whole evidence, the judgment and conscience are not convinced of guilt in a degree or to an extent such as would lead a careful and prudent man to act affirmatively in important matters of his own.</p> <p>2. A defendant in a criminal case who admits having made an incriminating threat testified to by witnesses for the state, is entitled to show the circumstances under which it was made, the accompanying conversation, if any, which called it forth, and the information on which it was based.</p> <p>3. Sec. 4786, R. S. (providing that the magistrate holding a preliminary examination shall “ examine the complainant and the witnesses to support the prosecution,” etc.), is directory only; and the examination of a sufficient number of witnesses to justify the magistrate in binding over the accused for trial is a sufficient compliance with the statute, even though the complaining witness and some of the other witnesses for the state are not examined.</p> <p>4. In opening the case for the defense, after the testimony for the state is in, defendant’s counsel is not entitled to review such testimony for the purpose of showing that it does not warrant a conviction, but may comment thereon only so far as may be necessary to show the relevancy of the testimony which he expects to introduce.</p> <p>5. On a trial for murder the state may introduce parts of the testimony of the defendant at the coroner’s inquest, without introducing the whole thereof — the defendant being entitled to introduce the remainder.</p> <p>6. On the day after the arrest of one charged with murder the sheriff said to him, “I am satisfied in my own mind that your gun did the shooting,” and he replied “It looks so, don’t it? ” An objection on the trial to evidence of this conversation on the ground that its effect was to introduce the opinion of the sheriff is held untenable, the reply being in the nature of an admission and intelligible only in connection with the sheriff’s remark.</p>

Rabiss, Circuit Judge. This is a replevin action, brought to recover all the lumber, lath, and shingles situated in and about the mill of the Bohn, MaTmfaeiniring Company in the town of Knight, county of Iron, and alleged in the complaint to be worth $30,000.

<p>Hyland v. Bohn Mfg. Go., ante, p. 157, followed.</p>

<p> Master and servant: Personal injuries: Dangerous process: Insufficiency of special verdict: Immaterial inconsistency. </p> <p>1. In an action for injuries sustained by an employee in a malting house by falling against the machinery while overcome by fumes of sulphur which had escaped from the kiln room below, the special verdict, which in respect to the defendant’s negligence relates exclusively to its knowledge or obligation to know of the plaintiff’s actual situation and danger at the precise time and place of the accident, and which fails to determine the questions whether the sulphur in the manner in which it was used in the business was daúgerous to defendant’s employees, whether it knew or .ought to have known of that danger, and whether it used proper care to prevent accidents by warning its employees or otherwise, is held insufficient.</p> <p>2. Questions, the submission of which was requested by plaintiff, as to whether-the defendant was negligent in permitting sulphur fumes to come into that part of the room where plaintiff was at work, and as to what was the proximate cause of plaintiff’s injury, should, in some form, have been embraced in the special verdict.</p> <p>3. An'inconsistency in the findings of the special verdict in relation to plaintiff’s contributory negligence is immaterial upon his appeal, where, even if all such findings were in his favor, the remainder of the verdict would not sustain a judgment for him.</p>

<p> Pleading: Striking out sham answer. </p> <p>A properly verified answer, putting in issue material allegations of the complaint, cannot be stricken out as sham, under sec. 2683, B.S.</p>

<p> Railroad fences: Failure to replace gate at farm crossing: Killing of horse: Liability: Construction of statute. </p> <p>Sec. 1811, B. S. (providing that any person who shall wilfully take down, open, or remove any fence, cattle guard, or crossing constructed by a railroad company pursuant to sec. 1810, or any portion thereof, or allow the same to be taken down, opened, or removed, or who, having lawfully taken down bars or opened ■gates in such fences for the purpose of passing through the same, ¡shall not immediately replace or close the same, shall forfeit a ■certain sum and, in addition, he liable to the party injured for all ■damages resulting from such act or omission), does not apply to •one who neglected to replace a gate at his farm crossing which had been accidentally destroyed by his runaway team, so as to make him liable for the death of a horse which strayed from the highway upon his land and thence through the opening upon the railroad track, and was there killed by a passing locomotive. When sought to be applied to such a case, the statute is penal and must be strictly construed.</p>

N. AustiN, Judge. Action to recover money. The complaint charged that the defendant, by virtue of a power of attorney authorizing ¡him so to do, had collected the sum of $8,418.15, being the amount of a judgment recovered by plaintiffs against Milwaukee county, and had failed to pay over the sum of $505.92 of such amount, though demand had been made on him for said sum, “ and that he did then and there convert to his own use, and has ever since retained, the said sum of…

N. AustiN, Judge. This action was brought to obtain a perpetual injunction forever restraining the defendant, its officers, agents, etc., from proceeding with or continuing the work of constructing or erecting a certain viaduct or approach thereto on Sixteenth street, between Clybourn street and St'.

TI. JohNsoN, Circuit Judge. The Lappen Furniture Company, a corporation, was organized in the city of Milwaukee, in December, 1892, for the purpose of carrying on a furniture business. Frank A. Lap-pen was president;. A. T. Tanner, secretary and treasurer; and they two, with Joseph Bub, constituted the board of directors, from the time of the organization of the company up to and during all the transactions to which this action relates.

<p>Appeal from an order of the superior court of Milwaukee .county: J. C. Ludwig-, Judge.</p> <p>The complaint alleges, in effect, that on March 1, 1894, ¡the firm of Richter, Schubert & Dick, then conducting a .■general real-estate, loan, and insurance business, in Milwaukee, as copartners, made their promissory note in writing, bearing date on that day, for $2,274.33, payable one year •.after date, to one Joseph Elanner, with interest, and there'upon delivered the same to said Flanner for full value; that ¡thereafter, and before maturity of said note, said Elanner .sold and delivered the same to this plaintiff; that on August 1, 1894, said partnership expired by limitation, and there.after the plaintiff and defendant each entered into business .for himself in the same line of business as had formerly been ■conducted by the firm; that, to supply capital therefor, the plaintiff had negotiated with the First National Bank of Milwaukee for a loan upon said note to the amount thereof; ¡that the defendant, with intent to injure and impair the business credit of the plaintiff, and to prevent him from obtaining credit on said note, warned the cashier of said bank .not to discount or purchase said note from the plaintiff,— thereby giving the cashier to understand that he repudiated ¡his obligation on said note, that the possession thereof by the plaintiff was wrongful and felonious, and that the plaintiff was not entitled to sell, assign, or transfer said note to •the bank; that the defendant gave the cashier to understand, by inference and by direct charge* that said note was without value, and that the plaintiff bad no right to the possession thereof and no property therein, and that he was-attempting to obtain the money of said bank fraudulently that in consequence of such warning the bank refused to-accept said note, or to advance any money thereon, or to-extend any credit to the plaintiff; that by reason thereof the credit of the plaintiff was ruined at said bank and other money institutions in Milwaukee, and hence he was unable-to obtain capital with which to conduct business; that by said act the defendant intended to injure the business reputation of the plaintiff; and that such acts were done, and: such warnings and statements made, by the defendant falsely and maliciously and with intent to injure the plaintiff, and< by reason whereof the plaintiff was injured in his business- and reputation, and for which he claims damages.</p> <p>From an order sustaining a demurrer to such complaint for insufficiency, the plaintiff appeals.</p>

C. Ludwig-, Judge. This is an action upon a bond. A demurrer to the complaint was overruled.

<p> Physicians and surgeons: Value of services: Malpractice: Evidence: Court and jury, </p> <p>1. In an action to recover for services as a physician, where plaintiff testified as to the nature of the treatment, that the services were worth the amount charged, and that the charges were less than was usual for such services, and there was no evidence to the contrary and no dispute as to the number of visits, it is held that the defendant was not prejudiced by a ruling of the trial court that,, while he might cross-examine plaintiff as to what had been ‘done by him and might make the defense that the services were not • worth anything, he could not cross-examine as to the amount charged for particular visits and what they were worth.</p> <p>2. Upon such undisputed evidence there was no question for the jury as to the plaintiff’s demand.</p> <p>3. Evidence in such case that the patient grew worse under plaintiff’s-treatment and better after plaintiff had been dischai’ged, without further evidence — other than the mere conjectures of non-experts — to show that the treatment was improper or negligent, wholly failed to support a counterclaim for damages alleged to-have been caused by negligent and unskilful treatment.</p>

<p>Appeal from a judgment of .the circuit court for Milwaukee county: D. H. JohNsoh, Circuit Judge.</p> <p>This is an appeal from a judgment of the circuit court for Milwaukee county which affirmed an order of the county court of Milwaukee county whereby it denied probate to two instruments propounded as the codicil to the last will and testament of Mary W. Leonard, deceased.</p> <p>The first of such instruments, dated September 21, 1874, is as follows: “"Whereas, on the first day of January, 1872, I transferred to Rev. A. M. Stowe the sum of one thousand and five hundred dollars (1,500), to be held by him in. trust, to pay the interest to me during my lifetime, and to'pav the principal, at my decease, — unless, in the providence of God, I should be under the necessity of using more or less of it to supply my own imperative wants,— to some religious society or societies and for religious uses, but without defining the objects of my bounty, I now, therefore, on the first day of September, 1874, for the purpose of defining and specifying more particularly the religious objects to which such money shall be paid after my death, I hereby make this instrument to declare the objects of such trust; and I do hereby transfer said property to said A. M. Stowe in trust, and I do hereby declare the objects of said trust as follows, to wit: First. The interest of said funds shall be paid to me during my life. Second. After my death the said A. M. Stowe shall pay the said money to the following objects, in the sums hereinafter stated: To the American Bible Society, $250.00; to the Board of Foreign Missions of the Pres. Qhurch, $250.00; to the Presbyterian Oorrtmittee of Home Missions, $250.00; to the American Tract Society, $250.00; to Auburn Theological Seminary, $250.00; to the Home for Little Wcmderers and kindred institutions, $250.00. Mary W. LboNakd. Witnessed by M. A. Webster, Sept. 21,1874.”</p> <p>The second of such instruments, dated October 8, 1883, and written on the same sheet with the instrument above set forth, is as follows: “ Oct. 8, 1883. Since the above instrument was drawn up, I feel that the Lord, by withholding success from my dear brother for many years, thus leaving him to come into a state of utter destitution, has, in his providence, thrown him upon me to a large extent for a support, and especially so if his life is spared after he is unable to do anything to furnish himself with the comforts of life. In the meantime the interest on the above sum, not having been called for by me, has accumulated, and there is now to be added to the above sum, viz. $1,500 — $1,000. Now, as I have no other way of assisting my brother, I wish the interest of the whole sum, viz. the $1,500 and the $1,000 added, to be used for my brother as long as he lives, if he needs it; also, any part of the principal which is needed to furnish him not only with the necessaries, but also with the comforts of life; and whatever is left of the sum total after his decease and my own decease, I wish to be given to the Lord, as above stated, viz. the $1,500 to be given to the objects heretofore stated, or, if it has been necessary to use a part of it, that the remainder be given to the six ob jects mentioned in the same ratio, and whatever is left of the additional $1,000 be divided into five equal parts, and that one fifth be given to the American Bible Society, one fifth to the A merican Tract Society, one fifth to the Presby. Board of Foreign Missions, and two fifths to the Boa/rd of Home Missions. M. W. Leonaed. .Witnessed by Lucy Rrainard Stowe, Robert R. Perine.”</p> <p>The probate court considered that these instruments did not constitute a will, because (1) they were wanting of testamentary character and purpose, and (2) by reason of defective execution, and denied them probate.</p> <p>Whether the will was defectively executed is a mixed question of fact and law, arising upon the evidence. Whether it is of testamentary character is to be determined by the interpretation of the instruments themselves. The evidence which tended to show the proper execution of the instruments as a will was substantially as follows: Lucy Brainard Stowe, one of the subscribing witnesses, testified: “I signed my name as a witness to that instrument in Mrs. Leonard’s room, ... in Mrs. Leonard’s presence, and at her request, and in the presence of Robert B. Perine. I do not remember anything she said at the time, . . . except to request Mr. Perine and me to sign, and to hand me the pen, and showing me where to sign. 1 did not see her sign the instrument. Her name was written at the bottom of the instrument, before Mr. Perine and I signed our names. She saw us both sign, and we signed at the same time.” Robert B. Perine, the other subscribing witness, testified: “As I came into her room, Mrs. Leonard was just rising from the table where she was signing her name. I do not remember whether anything was said by Mrs. Leonard, except, perhaps, to tell me where to sign my name. The instrument was lying on the table before me. I signed because Mr. Stowe asked me to. Miss Stowe and I signed in one another’s presence. I don’t remember that Mrs. Leonard made any statement to me, or in my presence, as to what the in-. strument was that I had just signed. Mrs. Leonard was present and looking on when Miss Stowe and I signed onr names.’’ Alfred M. Stowe testified: “She asked me if I would ask my daughter and Mr. Perine to come to her room. . . I did as she requested. . . . She told me that was her will, and I stated to the witnesses that she requested me to have them come to her room. Mrs. Leonard was sitting at the table with this will or codicil before her, and when we all three went into the room, and she requested them to sign, I said, £ This is Mrs. Leonard’s will, and she wishes you to sign as witnesses;’ and she said, £Yes.’ I saw the witnesses sign their names.” The subscribing witnesses do not remember that Mr. Stowe was present at their signing.</p>

<p> Sale of chattels: Breach of contract: Measure of damages: Loss of profits on resale: Findings of fact, when set aside. </p> <p>1. When the vendor of goods is informed that the purchase is made to enable the vendee to. fulfill a contract which he has theretofore made with a third person, and such vendor furnishes the goods, but not according to contract, and there is no market price for such goods, and the purchaser furnishes such goods to such third person, but is not able to recover of him the price stipulated in the contract with such third person, by reason of the breach of the contract committed by such vendor, — in determining the damages for such breach such vendor is bound by the price his vendee was to receive from such third person, whether such price was communicated to him at the time of the making of the contract with his vendee or not, unless the price was such as to yield an extraordinary and unusual profit, which could not reasonably be presumed to have been in contemplation by him at the time he made his contract; and in such a case he would not be bound beyond such sum as would yield a reasonable and fair profit to his vendee.</p> <p>2. Ordinarily, the contract price between the vendee and the third person in such case would, presumptively, be held to be a reasonable price; but if the facts are such as to show that such price would yield an extravagant or extraordinary profit, the vendor will not be hound by it, in the absence of evidence of previous knowledge; and in order to assess the damages the court must be put in possession of sufficient evidence to enable it to arx-ive at a conclusion in respect to what would amount to a reasonable profit on the transaction.</p> <p>3. To warrant setting aside findings of fact as against evidence, it must appear that they are against the clear preponderance of the evidence.</p>

<p>Appeal from au order of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.-</p> <p>On April 14,1894, the petitioner, the Americcm Insurance Company of Boston, executed and delivered to the Enger-Kress Company, a corporation existing under the laws of this state and doing business ip Milwaukee, its. policy of insurance on the property therein described against loss or damage by fire,. not exceeding $1,000. On June 22, 1894, the said Enger-Kress Company made a voluntary assignment to one Winterhalter for the benefit of its creditors. On June 23, 1894, the circuit court, by order in said assignment proceedings, authorized the assignee to continue the business of the assignor, and he did so. On July 7, 1894, a large part of the property so assigned, including the property covered by said policy of insurance, was destroyed by fire.</p> <p>On July 13, 1894, the plaintiff obtained a judgment by confession against the Enger-Kress Company before a justice of the peace, for $66.50, and thereupon, and on the same day, filed a transcript thereof with the clerk of the circuit court, and the same was duly docketed. Thereupon an execution was issued on said judgment, and returned wholly unsatisfied. Thereupon, and upon the petition of said Barth, the ' circuit court, on July 14,1894, made an order that the stock, property, credits, effects, and things in action of the said Enger-Kress Company be, and thereby were, sequestered, and that the Milwaukee Trust Company be, and thereby was, appointed receiver of the stock, property, credits, effects, and things in action of the said Enger-Kress Company, with the usual and ordinary duties and powers. On July 21, 1894, the circuit court ordered the said assignee to forthwith deliver to said receiver all the property, credits, etc., belonging to or received from the Enger-Kress Company by him. On December 8,1894, Hugh Ryan, court commissioner, filed his report and findings, whei-eby he ratified and confirmed said assignment, and the same was held not to be void. On December 18, 1894, the said receiver commenced an action ' in the superior court of Milwaukee county against the petitioner, the Amerieom Insurance Company of Boston, and sixteen other insurance companies, alleged to be interested in said loss, upon their respective policies of insurance, and said action is now pending and undetermined.</p> <p>Erom an order made by the circuit court, March 18,1895,, refusing- to vacate, annul, and set aside the order made July 14, 1894, appointing said receiver, and all proceedings had! therein, and refusing to vacate, annul, and set aside the order made July 21,1894, directing the assignee to turn over the property and effects to said receiver, and refusing to restrain the receiver from taking any further proceedings in , said action, and for general relief, the petitioner brings this appeal.</p> <p>They contended, inter alia, that the intervener is interested in the question of the validity of the appointment of the receiver and. of the proceedings thereunder, and is entitled to intervene therein and attack such appointment. The regularity of the appointment of a receiver cannot be collaterally questioned, but must be impeached, if at all, in such receivership proceedings. Neeves v. Boos, 86 Wis. 313, 318; Davis v. Shearer, 90 id. 250; Vermont dé G. B. Go. v. V. G. JR. Go. 46 Yt. 795; AtSy Gen. v. Guardian Mut. L. Ins. Go. 77 N. Y. 272; Mechanics' Mat. Bank v. Landauer, 68 Wis. 44. Relief from the appointment of a receiver can only be had upon application to the court making the appointment. Such relief may be had upon the intervention of any party interested. Sanger v. Upton, 91 U. S. 56; Schoonover v. IfincMey, 48 Iowa, 82; Att'y Gen. v. Guardian Mut. L. Ins. Go. 77 37. Y. 272; Vermont dé G. JR. Go. v. V. G. JR. Go. 46 Yt. 792; Beach, Receivers, § 701; G-luck & B., Receivers, 28; High, Receivers (3d ed.), §§ 39a, 203; 25 Am. L. Reg. 290. The appointment of the receiver is not a proceeding in rem, and the intervener not being a party to the proceedings is not concluded by the order made July 21st, directing the assignee to turn over all assets to the receiver. High, Receivers, § 39a/ J. W. Da/rm Mfg. Go. v. JParkhurst, 125 Ind. 31V; Tierney v. Plumix Ins. Oo. 4 N. Dak. 565. 'The intervener, though not concluded by the order of July 21st, may nevertheless intervene in said proceéding and move to have said order vacated or modified, because' its interests are thereby directly affected. Manifestly the sole object and*purpose of the receivership was to affect the interest of the insurance companies. The voluntary assignment being a change of interest, title, and possession of the insured property, the policies were thereby avoided, and in order to preserve the insurance the receivership proceedings were collusively instituted to attempt in- some way to vacate said assignment. The insurance companies were clearly the real parties in interest. It is difficult to say in what respect the rights or interests of creditors are in any w-ay modified or affected by the receivership, except in so far as the insurance companies are concerned. One not a nominal party, but the real party in interest, may intervene to have an order or judgment vacated. JEtna L. Ins. Oo. v. Aldrich,, 38 Wis. 107; Lowber v. New York, 26 Barb. 262; Lam/pson v. Bowen, 41 Wis. 484; Weston v. Weston, 46 id. 130; Bret-tell v. Deffenbach, 60 N. W. Rep. 167; 12 Am. & Eng. Ency. of Law, 130, and notes; Ereeman, Judgments, § 92; Black, Judgments, § 317.</p> <p>They argued, among other things, that if the assignment was void it was proper to appoint a receiver. Powers v. O. H. Hamilton Payer Go. 60 Wis. 23; Garden Oity B. de T. Go. v. Geilfuss, 86 id. 612; Oonnah v. Sedgwiclc, 1 Barb. 210. The receiver represents creditors of the corporation, and if the voluntary assignment was void the validity of the insurance policies was not thereby affected, for the forfeiture clause therein would not apply to void conveyances or assignments. German Ins. Oo. v. YorTc, 48 Kan. 488; Gerling v. Agricultural Ins. Co. 39 W. Va. 689; Pitney v. Glen's Falls Ins. Go. 65 N. Y. 6; Allcan v. N. H. Ins. Go. 53 Wis. 145, 146.</p>

H. Johnson, Circuit Judge. This is an appeal from an assessment of damages in corn -demnation proceedings. It appeared that the plaintiff, in August, 1892, owned several contiguous lots in the Sixth ward of the city of Milwaukee, lying between Commerce street and Milwaukee river. Commerce street runs nearly parallel with the river. At that time Holton street ran nearly at right angles with Commerce street, but ended at Commerce street.

H. Johnson, Circuit Judge. This was an action on an insurance policy in the form known as the “ standard policy,” adopted by the insurance commissioner under ch. 195, Laws of 1891, issued by the defendant company to the plaintiff, in the sum of $1,000, upon a two-story frame dwelling house and additions thereto, on lots in Milwaukee, and known as Ros. 166 and 168 Broadway ; the buildings having been subsequently destroyed by fire.

H. Johnson, Circuit Judge. The complaint alleges that on October 13,1891, the plaintiff, Meder A. Perrigo, and one William H. Perrigo were the owners in fee of certain land situated in the town of Wauwatosa, in the county of Milwaukee, as tenants in common, each owning an undivided one-half; that on that day, under and pursuant to ch. 488, Laws of 1889, and ch.'179, Laws of 1891, the board of park commissioners of the city of Milwaukee entered into an agreement in writing…

<p> Voluntary assignment: Vacating order allowing final account: Reference. </p> <p>1. Under sec. .3838, R. S. (providing that the court may, in discretion, relieve a party from a judgment, order, or other proceeding against him, through mistake, inadvertence, surprise, or excusable neglect), the court has power, on motion of a creditor who received' no notice and did not know of the final hearing, to vacate an order allowing the final account of an assignee and to permit objections to be filed.</p> <p>3. Sec. 1701, R. S., providing that such final order shall be “ conclusive upon all parties,” does not prevent the court from vacating it for good cause shown.</p> <p>3. Independent of any power conferred by statute, the circuit court, in the exercise of its inherent powers as a court of chancery of general jurisdiction under sec. 8, art. VII, Const., may order a reference of the objections to the final account of an assignee.</p>

<p>Written contract: Construction: Contemporaneous oral agreement: Evidence: Reformation: Judgment: Res adjudicata.</p> <p>1. A written contract providing that plaintiff, in consideration of $500 to him to be paid, leased to defendant certain cars and track for the term of three months; that if defendant returned them sooner he should pay for the use thereof at the rate of $200 per month; and that defendant should have the right, at any time before returning them, to purchase the entire outfit at a price not to exceed $900, — is construed as not entitling defendant to have the payments for rent applied on the purchase money.</p> <p>2. Evidence of a contemporaneous oral agreement by which payments of rent were to be applied on the purchase price was not admissible. The fact that the price was “ not to exceed $900 ” did not show that only a part of the contract was reduced to writing, so as to make such evidence competent.</p> <p>3. A written contract will not be reformed so as to insert in it a provision which was omitted with the consent of the party asking the reformation, although the consent was given in reliance upon an oral promise of the other party that such omission should make no difference.</p> <p>4. A reason given by the trial court for dismissing the complaint in an action to. reform a contract by inserting a provision alleged to have been omitted through fraud or mistake, to the effect that the meaning of the contract would not be changed by such insertion, is not, if not contained in the judgment, res adjudicata on the question of the proper construction of the contract.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>The plaintiff brought this action to recover against the •defendants damages sustained by him for an injury received . while working as a stevedore in unloading the steam barge Helena, of which the defendants are the owners, at a wharf in the city of Milwaukee, and which was laden with a cargo ■of stove-size coal, and was being discharged of its cargo by a boss stevedore and his assistants, pursuant to a contract with the consignees of the cargo. It is charged that it was the duty of the defendants to leave the barge in a condition to be safe and secure for the plaintiff to work upon; that the defendants were careless and negligent, in that they left the scuttle or trimming hole open on the lower deck at a time and place when and where the plaintiff, in the discharge of his duty, was necessarily required to pass, and that while ■doing so he stepped into said scuttle hole and broke his leg. And it was also charged that the hatch in the upper deck nearest the scuttle, and through which light might have given warning to persons on the lower deck that said scuttle was open, was closed, so that no light could come from said hatch to enable the plaintiff to discover the danger from the «cuttle or trimming hole being open. The scuttle or trimming hole was an opening in the lower deck about ten inches wide and twenty inches long, and at the time was entirely unguarded; and it was claimed that it was the duty of the defendants to have the said scuttle hole closed before allowing- the men unloading the said coal to use the said deck for the purpose of going to and from their work.</p> <p>There was a general denial of the principal allegations of the plaintiff’s complaint, and it was alleged that the plaintiff’s injury was occasioned solely through his negligence, carelessness, and improper conduct.</p> <p>At the close of the plaintiff’s testimony the defendants moved the court for a nonsuit, but it was denied, and at the close of the case the defendants moved the court to direct w verdict in their favor. This motion was denied.</p> <p>A special verdict was found, to the effect: (1) That the-barge, at the time of the plaintiff’s injury, was being discharged of her cargo by a stevedore and his men, under a contract with the consignees of the cargo. (2) The cargo was laden in the hold in part, and on the between deck in part. (3) That part of-the lower deck where the plaintiff received his injury was not laden with coal so as to prevent its use as a way for passing and repassing, (4) but was apparently in a condition fit and proper for its use by a man of ordinary care, in passing forward and aft. (5) The scuttles or trimming holes in that part of the lower deck were open. (6) It was negligence on the part of the defendants, their officers and employees, to leave such scuttles or trimming holes so open. (Y) Such negligence was the proximate cause of the plaintiff’s injury. (8) While the barge was. being discharged of her cargo by the stevedore and his men, the opening aDd closing of the hatches Avere not under their control and direction. (9) The hatches in the upper deck, above the place where the plaintiff was injured, were not closed at the request of the stevedore’s men. (10) Hatches Nos. 1 and 5 Avere being worked at the time of the plaintiff’s injury. (11) There was no stationary ladder leading from the lower to the upper deck at the place where the plaintiff Avorked. (12) There was a ladder on board said vessel, Avhich the plaintiff could have had for the asking, to go down the hatch in which he worked. (13) The dangers and risks of the plaintiff by reason of the uncovered scuttle or trimming hole where he was injured were not sqch as would be apparent to a person using ordinary care and observation and' having the knowledge and experience in and about steam barges in general, and the steam barge Helena in particular, which the plaintiff then had. (14) The plaintiff was not guilty of any negligence or want of ordinary care which proximately caused or contributed to his injury. (15) It was customary, upon the Helena and vessels of her class, to leave the scuttles or trimming holes open when the vessels were turned over to the stevedores for unloading. (16) It was the duty of the officers and men employed in the vessel to close such scuttles or trimming holes. (17) The defendants were guilty of negligence which, proximately caused the plaintiff’s injury, in leaving open the-scuttle or trimming hole into which the plaintiff stepped or fell when he received his injury. (18) The plaintiff was not guilty of any want of ordinary care, which proximately caused or contributed to his injury, in stepping or falling, into said scuttle or trimming hole. (19) The plaintiff’s damages were assessed at the sum of $3,779.16.</p> <p>For said amount, with costs, judgment was given against the defendants, from which they appeal.</p> <p>To the point that a vessel owner owes no duty to a stevedore to protect him from the danger of stepping into an open scuttle, left open for his convenience, which is a usual or ordinary risk incident to the business as it is conducted and which every experienced stevedore knows or is presumed to know, and over which the owner has no dominion while the vessel is discharging her cargo, they cited Inder-maur v. Dames, L. R. 1 0. P. 274; 8. O. 2 id. 311; Willcvn-son v. Faivrie, 1 Hurl. & 0. 633; 1 Thomp. Neg. 309, subd. 3 Oanniff v. Blanchard F. Co. 66 Mich. 646, 648; Germania, 9 Ben. 356; Dwyer v. Fat. 8. 8. Co. 4 Fed. Rep. 493; The-Carl, 18 id. 655; The Gladiolus, 21 id. 417. The defendants-did not have control of the opening of the hatches or of closing the scuttles, within the meaning of the rule as to> inviting persons in to dangerous places, and hence owed no duty to the plaintiff in respect thereto. If the owner of a building, vessel, or other structure, properly constructed and in. 'proper repair, turns it over to tenants, contractors, .or workmen, and for their convenience opens hatches, scuttles, windows, doors, or stairways and leaves them open, to be •closed by the tenants, contractors, or workmen at their pleasure or at their bidding, the owner is not answerable to them or their visitors for the manner in which such tenants, contractors, or workmen exercise their control over them. Euswell, Personal Injuries, §§ 85, 90; 1 Thomp. Reg. 319, :subd; 2; Shearm. & Redf. Reg. §§ 708, 723; Cole v. McKey, 66 Wis. 500, 510; Peake v. Buell, 90 id. 508; Hadley v. Taylor, L. R. 1 O. P. 53; Fisher v. Thvrkell, 21 Mich. 1; Méllen v. Morrill, 126 Mass. 545; Boston v. Cray, 144 id. 53.</p>

<p> Municipal corporations: Disposal of garbage: Injury to fishing nets: Independent contractor: Public service: Nuisance. </p> <p>1. One who removes the garbage of a city under a contract which provides that such garbage shall be carried to some point in Lake Michigan not less than fifteen miles from the city, and that the city may suspend the work and relet the contract in case of “improper or imperfect performance,” but which reserves to the city no other right to control the mode or manner of its performance or the place where the garbage shall be dumped, is an independent contractor, and the city is not liable for injuries to fishing nets resulting from the garbage so dumped being carried into them by the ordinary movements of the water.</p> <p>2; A city is not liable for injuries caused by its board of public works in disposing of the garbage of the city.</p> <p>8. The dumping of the garbage of a city into one of the Great Lakes, fifteen miles from the shore, is not prima facie a nuisance.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p>

<p> Criminal law: Instructions: Presumption of innocence. </p> <p>The refusal to instruct the jury in a criminal case that “ the law presumes every man innocent, and desires no conviction if the jury, or any one of them, entertains a reasonable doubt of his guilt; for while the jury, or any one of them, entertains a reasonable doubt as to the guilt of the defendant of the crime charged, he cannot, without a great violence to his conscience and sense of right, agree upon a verdict of.conviction,” — is held error, although the court did charge that the jury could not convict unless,- from all the evidence, there was left in their minds no reasonable doubt of the guilt of the accused.</p>

V. Bardeen, Circuit Judge. Action to set aside and cancel a tax deed, dated and recorded May 31, 1889, of S. W. J of S. E. J of section 14, and S. E. J of S. E. £ of section 12, in township 34 N., of range 7 E., in Lincoln county, the legal title to which had become vested in the Bray & Choate Land Company in 1885. On the 30th of October, 1891, said land company entered into an executory contract with R. P. & G-.

C. Ludwig, Judge. This is an action of replevin to recover the possession of a promissory note for $5,000. The note is dated June 12, 1893, and due three months after date. The plaintiff claims the note on the ground that it is a part of a trust estate of ■which he is the trustee. The defendant claims to own the note by purchase as a Iona fide purchaser from a former trustee. It appears that one John B. Koetting was the trustee of the estate of one Clark Shepardson.

H. JOHNSON, Circuit Judge. This action was commenced June 19, 1888, by the service The amended complaint alleges that during the times… Held: and said receiver submitted to such creditors, on behalf of said firm, a, proposition of settlement in words and figures following, to wit: “ Chicago, Ill., July 2nd, 1883. “ To the Creditors of the Firm of Me Ceoch, Everingham de Co., Represented upon the Board of Trade of the City of Chicago: We submit the following proposition of…

H. JohNSON, Circuit Judge. This action was for the foreclosure of a mortgage by which it was covenanted, among other things, in substance, that the mortgagor, Xirchhoff, should pay annually all taxes assessed on the mortgaged premises ten days before the annual tax sale, and should keep the buildings thereon insured against loss or damage by fire, in the sum of $5,000, in some solvent, incorporated insurance company.

0. Ludwig, Judge. This action is in the nature of an action quia timei against a party setting up a claim to the title of land. The complaint shows that on December 3, 1892, the plaintiffs gave the defendant a writing, of which the following is a copy: “Received of William M. Williams one hundred dollars ■($100), to close bargain on twenty-five (25) acres of Bedessen farm, at ten thousand dollars ($10,000).

C. Ludwig, Judge. Plaintiffs brought this action, under sec. 1769, R. S., to enforce an alleged liability of the stockholders of the defendant Hollister Mining Company, a Wisconsin corporation, for debts due its laborers. The complaint does not show whether the claims to enforce which this action was brought accrued for labor performed in this state; but otherwise, by appropriate allegations, a good cause of action under the statute, it is conceded, is stated.

<p>Appeal from a judgment of the superior court of Milwaukee county: R. FT. Austin, Judge.</p> <p>Action upon a promissory note. The opinion states the-facts.</p>

<p>«(1, 2) Evidence: Record of coroner's inquest: Reversal of judgment. (3) Instructions to jury: “ Ordinary care.” (4) Verdict: Separation of jury.</p> <p>,[1. Whether the record of a coroner’s inquest upon the body of a person accidentally killed is admissible in an action to recover damages for such killing, not determined.]</p> <p>“2. A judgment will not be reversed for the rejection of evidence unless it affirmatively appears that such evidence would have had ■ some bearing on the controversy.</p> <p>■3. A charge to the jury defining ordinary care as “such care as the great majority of men would use in like or similar circumstances,” was not erroneous.</p> <p>4. Where the jury, after answering a part of the questions submitted for a, special verdict, thought that it thereby became unnecessary to answer the others, and thereupon, as the court had directed, sealed the verdict and separated and on the following morning brought the verdict into court, it was not error to send them out ■again to answer the other questions, it not being claimed that their action was dishonest or that any of them were subject to ' -any improper influence during their separation, and not being shown that there was any opportunity for the exercise of such influence.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: B. N. Austin, Judge.</p> <p>This was an action upon a policy of insurance for $2,500, issued by the defendant to the plaintiff upon his life; upon the endowment plan, by which it was provided, in substance, ■among other things, that on the surrender of the policy duly receipted by the insured and beneficiaries, within three months “ after the expiration of the third or any subsequent year/or which premium, has leen paid” the company would pay the cash value therein specified, which in the present •case, at the end of the third year, was $194.40. The annual premium for the first and second years, it is admitted, was paid, and the plaintiff claims that on the 30th of March, 1893, he paid the premium due that day for the third year, up to March 30, 1894, and received a renewal receipt. This alleged payment was by the note of the insured for the amount of the premium, $115.22, dated March 30, 1893, payable sixty days after date; and, not having been paid at ■maturity, it was renewed, but remained in the hands of the •company unpaid, and was tendered to the plaintiff at the trial. It was alleged, and evidence was given .to show, that .after the end of the third year the plaintiff offered to surrender the policy duly receipted, and demanded payment of the cash surrender value, which was refused. It was denied ■that the third annual premium had ever been paid, and this, was the real question in issue.</p> <p>The renewal receipt for the third premium was to the effect that the annual premium due March 30, 1893, had been received on the policy, “ continuing the same in force until 12 o’clock noon of the 30th day of March, 1894, . . . provided, that if any note or other obligation has been given for such premium or any part thereof, and the same or any renewal thereof shall not be fully paid when due, then for any loss occurring during such nonpayment the ■company shall not be liable, but the whole amount of the premium included in such note or other obligation shall be considered as earned, and the company may collect the same.” The policy contained a provision to the same effect, and that “if the first or any subsequent premium on the policy shall be settled wholly or in part by note or other obligation, whether of the beneficiary, the insured, or any third party, sueh settlement shall not be deemed a payment, but only an extension of the time for such payment of premium ; ” and, further, that, “ if the premiums are not paid as provided herein, then, in every such case, the company shall not be liable for the payment of the sum insured, and the policy shall cease and determine, excepting only that, after three or more annual premiums have been paid upon this policy, it may be surrendered for its cash value, in accordance with the agreement expressed and indorsed hereon, or it will be valid as a paid-up, non-participating policy, payable as herein provided, for as many twentieth parts of the whole amount payable at the end of the period for which the policy is issued as there have been complete annual premiums paid,” which in the present case would have been $375, payable March 30,1911, had the plaintiff actually paid three complete annual premiums. The insured stipulated in his application that “ neglect to pay the premium on or before the day it becomes due shall violate the policy and forfeit the payment made thereon, except as provided in the policy.”</p> <p>The court was requested to direct a verdict for the defendant, but the request was refused; and a motion to set aside the verdict for the amount claimed and interest, and for a new trial, on the ground that the verdict was contrary to the law and evidence, was denied. From, a judgment against the defendant on the verdict, it appealed.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: R. N. Austin, Judge.</p> <p>The plaintiff was a brakeman in the employ of the defendant. His particular work at the time of the accident was in the defendant’s yard in Milwaukee, switching cars. The particular ground of defendant’s liability, as alleged in the complaint, is the failure of fellow switchmen to obey the plaintiff’s signals. The plaintiff went between two freight cars for the purpose of coupling them together. He claims that he gave the proper signal at the proper time for the train to stop, which was disregarded, and the train backed down upon him while he was trying to disengage a pin which had become fast and to make the coujiling, and crushed his arm between the cars and disabled it. His testimony was sufficient, if believed, to support a verdict in his favor. But he was not corroborated in any material point. He was shown to have made statements of material facts directly contrary to his testimony, and acknowledged that some of those statements were intentionally false. Moreover, he was contradicted on material points by the testimony of his fellow workmen.</p> <p>After the testimony of both sides was in, the trial court directed a verdict for the defendant, stating its reasons as follows: “ The motion to direct a verdict in favor of the defendant is granted — first, upon the ground that the burden of proof is upon the plaintiff to satisfy the court, by a fair preponderance of the evidence, that he is entitled to recover upon his cause of action; second, upon the ground that there is such a want of preponderance of evidence as would justify the court, in the exercise of its sound discre1 tion, to grant a new trial, if a verdict were rendered for the plaintiff, on the ground that the verdict would be against the weight of evidence, in accordance with the decision made in the case of McOoy v. Milwaukee St. JR. Go. 82 Wis. 215, it appearing to the court that the only testimony on the part of the plaintiff is that of the plaintiff himself, and it is not corroborated by any other witness, and that he has at various times made statements directly contrary to his state-inents made under oath on the trial, and that he himself admitted, on the trial, that some of the material statements so made by him were false, and that he made such false statements intentionally. This being the case, the court ought, following the decisions of other courts, to direct a verdict in favor of the defendant, because, if a verdict were rendered against the evidence, it would be contrary to the weight of evidence, and the court would grant a new trial.”</p> <p>From a judgment on this verdict this appeal is taken.</p> <p>They argued, among other things, that to justify the court in taking a case from the jury the question must be wholly one of law, not depending on controverted facts, nor upon what facts the testimony establishes, nor upon the credibility of witnesses, nor upon what inferences or conclusions ought to be drawn from the testimony. Valin v. M. dk N. JR. Go. 82 Wis. 1, 5, 6; Thoresen v. La Crosse City JR. Co. 87 id. 597, 605; Ben-ham v. Purdy, 48 id. 99, 101; Cutler v. Ilurlbut, 29 id. 152; Lcmghoff v. JMJ. da P. du C. B. Co. 19 id. 489, 497; Bill v. Fond du Lao, 56 id. 242, 246; Nelson v. G, JMJ. dk Bt. P. B. Co. 60 id. 320, 324; Ewen v. C. dk N. W. B. Co. 38 id. 613, 628; Townley v. G, M. dk St. P. B. Co. 53 id. 626, 632; JKenworth/y v. Ironton, 41 id. 647, 651; Johnson v. L. S. T. dk T. Co. 86 id. 64, 71; Naples v. Orth, 61 id. 531, 533; Boye v. C. dk N. W. B. Co. 62 id. 666, 671; S. C. 67 id. 1, 14; JDuame v. C. dk N. W. B. Co. 72 id. 523, 534; Stacy v. M., L. S. da W. B. Co. 85 id. 225, 235; Alford v. G, M. dk St. P. B. Co.. 86 id. 235, 236; Adams v. C. dk N. W. B. Co. 89 id. 645, 647; Colder v. Crowley, 74 id. 157, 159; Jones v. C. dk N. W. B. Co. 49 id. 352, 353; Spensley v. Lomcashire Ins. Co. 54 id. 433, 439; JoTmston v. Bmibiurger, 13 id. 175, 177; Winstam.-ley v. G., M. de St. P. B. Co. 72 id. 375, 387.</p> <p>To the point that where a trial judge, upon a motion to direct a verdict, can see that he would feel himself obliged to grant a motion for a new trial upon the ground that a verdict, if rendered for the plaintiff, would be unsupported by the evidence, he ought, in the interest of justice- and in the interest of litigants, to put an end to ’ the litigation by directing a verdict for the defendant, they cited Dryden v. Britton, 19 Wis. 23; Bogan v. Cushing, 49 id. 169, 171; Pleasants v. Fant, 22 Wall. 116; Stuart v. Simpson, 1 Wend. 376; Stone v. Flower, 47 N. Y. 566; Sherwood v. Mercantile M. Ins. Co. 5 Hun, 115; Vanderford v. Foster, 65 Cal. 49; Mead v. Crane, 5 N. L. Law, 852; Baldwin v. Shannon, 43 id. 596; Davis v. Maxwell, 12 Met. 286; Meyer v. Bouok, 85 Iowa, 319; Bailey, Master’s Liability, 497.</p>

<p> Corporations: Fraud of promoters: Liability of third persons aiding' therein: Conspiracy. </p> <p>1. The promoters of a corporation are accountable to it for any profits which they may receive from a violation of their duty as such.</p> <p>2. Where the promoters of a corporation organized to purchase a certain tract of land, by false representations as to the price to be paid therefor, obtained from the corporation for themselves a sum of money in excess of the price actually paid, other persons who, by agreement with such promoters and with knowledge of the facts, aided them in carrying out the scheme and received a portion of the profits thereof, are equally liable with such promoters to the defrauded corporation, even though they had no dealings-directly with it or its members, and occupied no fiduciary relation,: strictly so called, to them, and did not personally know that any misrepresentations were made.</p> <p>The duties and liabilities of promoters to a corporation and its members are reviewed in the annotation to Yale Gas Stove Co. v. Wilcox (64 Conn. 101) in 25 L. R. A. 90.— Rep.</p>

<p> Written contract: Parol evidence: Acceptance by party not signing; Peal estate brokers. </p> <p>1. Where by the terms of a written agreement real estate brokers, in consideration of extra time given the purchaser on his first payment, were to take their commission on a sale on a certain day, which was the day on which a large payment was to be made, parol evidence was not admissible to show that they were to wait until such payment was actually made.</p> <p>2. A written agreement by real estate brokers to wait until a future day for their commission bn a sale becomes binding on the vendor by his acceptance thereof, although he does not sign it.</p>

Appeals from an order of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.

<p>Appeal from a judgment of the circuit court for Milwaukee county: E>. H. Johnson, Circuit Judge.</p> <p>This was an action commenced in a justice’s court by the appellant against the respondents as copartners. A summons was issued by the justice on August 6,1894, returnable August 17, 1894. It was returned, bearing the following indorsement of service: “I certify that on the 11th day of August, 1894, at the city and county of Milwaukee, I served the within summons on the defendants Julius Krueger and Henry Krueger, by reading the same to Julius Krueger, and delivering to and leaving with him a true copy thereof for each of them, at their usual place of abode. The defendant Henry Krueger I could not find.” On the return day of the summons the defendants failed to appear. The plaintiff proved his case and took judgment against both defendants.</p> <p>The case was taken by common-law certiorari to the circuit court, which court reversed the justice’s judgment. From this judgment of the circuit court this appeal is taken.</p> <p>To the point that the summons was served six days before the return day, they cited Columbia T. Road v. Haywood, IQ Wend. 422; Ghad-doclc v. Berry, 93 Mich. 542; Arnold v. Nye, 23 id. 286; Smith v. Force, 31 Minn. 119; White v. Cermcm Ins. Co. 15 Neb. 660; Messiok v. Wigent, 37 id. 692; Foster v. Marlcland, 37 Ran. 32; Sclmltz v. Nine, 39 id. 334; Ball v. Ma/nder, 19 How. Pr. 468; Herriclc v. Graves, 16 Wis. 157.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: R. N. Austin, Judge.</p> <p>This action was brought to recover instalments of rent alleged to be due on a written lease under which defendants rented a room in' a building in the city of Milwaukee, known as the “ Goldsmith Building,” for a period of three years. Defendants admitted the execution of the lease, but alleged that they never entered into possession of the room, and that after signing the lease it was surrendered to plaintiff’s assignee, and that such assignee accepted such surrender by taking possession of the room. A verdict and judgment were rendered for plaintiff, and defendants appealed.</p> <p>They contended that there were only two ways by which a lease could be surrendered, namely (1) by deed or conveyance in writing, and (2) by act or operation of law. E. S. sec. 2302. The appellants’ claim is that the lease in question was surrendered by act or operation of law. The instructions of the trial court were erroneous, because such as could be proper only in case the law permitted a surrender by oral agreement between the parties. The surrender might have been in pursuance of an oral agreement, or it might have been independent of it. The proper question for the jury to determine was whether or not the acts of the parties in reference to the premises created a surrender. If the acts of the parties were such that a surrender was created, then as a matter of law a precedent agreement to surrender would be inferred, and this notwithstanding there may not have been any express agreement to surrender. This would be the case even though there had been an agreement not to surrender. They cited, besides cases cited in the opinion, 1 "Washb. Eeal Prop. (5th ed.), *353, *354; Talbot v. Whipple, 14 Allen, 177; Amory v. Ecmnoffsky, 117 Mass. 351; Hanham v. Sherman, 114 id. 19; 4 Kent, Comm. (13th ed.), *105; Bailey v. Wells, 8 "Wis. 141.</p>

H. Johnson, Circuit Judge. This is an action upon a written contract issued by defendant to plaintiff, and called a “ Certificate of Guarantee.” The plaintiff is a manufacturer of clothing, doing business in Milwaukee, and was such in 1889. The defendant was at that time a corporation, incorporated under the laws of the state of Mew Jersey.

H. Johnson-, Circuit Judge. ' On the 24th of December, 1894, Simon Dittenhoefer filed ids complaint against Charles Hochstadter in the circuit •court for Milwaukee county, setting up that Dittenhoefer, the plaintiff, and the defendant, Hochstadter, were, and for -a considerable time had been, copartners in keeping a -clothing store or stores and the selling of ready-made clothing, hats, caps, and furnishing goods, stating the terms of •said partnership; that they owned and…

C. Ludwig, Judge. On the 1st day of September, 1890, John Quincy Adams and others, appellants, were the owners in tee, though in trust, of lots 11 and 12, block 17, in the Third ward of the city of Milwaukee, and as such owners, being duly authorized thereto, they entered into a contract with Frederick W. Montgomery, by the terms of which they demised said premises to him for the term of ninety-nine years.

C. Ludwig, Judge. This action was brought to enforce an alleged liability of defendant, as a common carrier, for goods, belonging to» plaintiff, destroyed by fire while in possession of defendant. The facts requisite to a proper understanding of the case are sufficiently stated in the opinion.

<p>Contracts: Construction: Reference to previous agreement: Mutuality: Breach: Readiness to perform: Measure of damages.'</p> <p>1. A contract for the purchase of lye cans, to be furnished “as heretofore,” was not incomplete because it failed to fix the price to be paid,' where up to that time such cans had been furnished under a previous agreement which did fix the price, and cans were thereafter furnished and paid for without any new agreement as to price. '</p> <p>A By a written contract defendants agreed to take plaintiff’s entire output of lye cans, and he was to continue to furnish them as theretofore their “ entire wants for cans,” which were to be not less than 10,000 cans per day. They agreed to keep him supplied with ample material so as to keep his force constantly employed, and the contract was “to continue in force as long as [thedefend-ants] use lye cans.” Held, that the contract was not void for want of mutuality.</p> <p>3. Defendants having notified plaintiff that they would receive no more cans from him, and having made an exclusive contract with other manufacturers for all the cans to be used in their business, plaintiff was entitled to treat the contract with him as broken and to bring an action at once for the breach.</p> <p>4. If, after such breach, there was no demand by defendants for further performance of the contract by plaintiff, it is immaterial whether or not he was at all times ready to perform.</p> <p>5. The damages which plaintiff was entitled to recover for such breach were the profits which he would have realized on 10,000 cans per day during the life of the contract; and the allowance of profits, not on the basis of 10,000 cans per day, but on the basis of the smaller number actually used by defendants after the breach, and only until the dissolution of defendants’ firm by the death of one of its members, was not an error prejudicial to defendants.</p>

<p>Appeal'from a judgment of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>On the 18th day of September, 1876, John Nazro owned lots 12, 13, and 14 in block 27, in the Fifth ward of the city of Milwaukee. Each lot was fifty feet wide, and fronted on Reed street. The three together constituted a tract 150 feet wide by 160 feet long, bounded by Reed street on the west, by Yirginia street on the north, and a public alley on the east. On the day named Nazro conveyed a portion of said land to Joseph Burnham by deed describing the tract conveyed as follows: “The west 105 feet of lots 12, 13, and 14, of block 27, Fifth ward, and south 12-J- feet of the east 55 feet of said lot 12 in block 27, reserving therefrom the east 5 feet of the west 105 feet of said lots 12, 13, and 14, and the south 12J feet of the east 55 feet of said lot 12, to be used for and kept open as an alley for all owners of said lots 12, 13, and 14, in said block 27, for them and their heirs and assigns forever.” At the same time he conveyed the balance of said lots to Augusta Salentine by deed-describing the part conveyed as follows: “The east 55 feet, of lots 12, 13, and 14 in block 27 in the city of Milwaukee, excepting therefrom the south 12|- feet of the east 55 feet of said lot 12, which are to be used as an alley for all owners of said lots 12, 13, and 14; also reserving therefrom the west 5 feet of the east 55 feet of said lots 12,13, and 14, and the north 12£ feet of the south 25 feet of said lot 12, to be used for and kept open as an alley for all owners of said lots 12, 13, and 14 in said block 27, and for them and their heirs and assigns forever.”</p> <p>At the time of the commencement of this action, and for more than four years theretofore, plaintiff owned that-portion of said lots described in the first-mentioned conveyance, and defendant that portion described in the second-mentioned conveyance, except so far as the title was affected by a tax deed hereinafter mentioned, under which defendant claimed the exclusive title to the 12^-foot strip. Since the two conveyances mentioned were made, the 10-foot alley, extending from Yirginia street south through the lots, and connecting with the 12§-foot strip on the south side of lot 12, so as to allow the free passage by way of said alley and strip from the public alley on the east side of said lots to Yirginia street, had been kept open with slight interruptions, and used in accordance with the terms of said conveyances.</p> <p>Eor several years prior to the commencement of this action, and including the year 1889, the 12^-foot strip was assessed as a part of the east 55 feet of lot 12, and, for the purpose of obtaining a tax deed covering the said strip and cutting off plaintiff’s rights thereto, defendant, for the year 1889, omitted to pay the taxes on the east 55 feet of said lot, and it was thereafter sold at tax sale for delinquent taxes, and bought in by C. W. Milbrath, who bought at the tax sale by arrangement with defendant. Thereafter Milbrath, in the interest of defendant, on the V/ltfa. day of September, 1893, took a tax deed covering said east 55 feet, and thereafter, on the 6th day of November, 1893, he quitclaimed to defendant, who thereupon asserted title to said strip, and placed a gate across it, but did not wholly exclude plaintiff therefrom. Defendant paid the taxes on the strip as a part of the east 55 feet of said lot 12 each year after 1889.</p> <p>The court found, among other things, the facts as above set forth, and that the only notice of the application for the tax deed served upon anybody was served on defendant; that he was not, at the time of such service, the owner or occupant of said strip, but that plaintiff was such owner and in possession of the same. The court decided that the tax deed was void, and ordered plaintiff, as a condition of recovery, to pay the taxes assessed bn the strip that had been paid by the defendant, with interest and charges, as provided by statute in such cases. It was stipulated by the parties that one tenth of the tax on the whole lot would be an equitable division, and the court ordered accordingly. The amount of taxes was computed on the assessed valuation of the lot, exclusive of improvements, and was paid, and thereupon judgment was rendered in plaintiff’s favor, from which judgment this appeal was taken.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: E. 3ST. Austin, Judge.</p> <p>Replevin. The facts are stated in the opinion.</p>

N. Austin, Judge. Action upon a bond. The defendant Obermann was treasurer of the plaintiff company from August 19, 1890, until July 1, 1893.

FT. Austin, Judge. A statement of the main facts out of which this case arises will be found in Burnham v. Merchants’ Exchange Bank, ante, ip. 277. It is not necessary to repeat the statement here. The action is upon a promissory note for $10,000, executed •by the defendants to the South Side Savings Rank, and by it indorsed and transferred, before maturity, with other notes, as collateral security for a loan of $90,000.

<p> Master and servant: Injury to minor: Assumption of risk: Court and jury. </p> <p>1. The risk of injury by falling while passing over steam pipes laid on a kitchen floor and covered with boards in the form of an inverted V two inches high and thirteen inches wide is held, as matter of law, to have been assumed by a girl sixteen years old, nearly full grown, and of reasonable intelligence, who had worked in such kitchen for five or six months and, though the condition of the floor was obvious, had never made any complaint in respect thereto.</p> <p>3. In an action by a minor for personal injuries, where the evidence on the question of contributory negligence or assumption of risk is undisputed and the inferences from it are plain and certain, that question need not be submitted to the jury. Casey v. C., St. P., M. & O. R. Co. 90 Wis. 113, followed; Luébke v. Berlin Machine Works, 88 Wis. 442, distinguished.</p>

' ERROR to review an order of the circuit court for Iowa county: Geo. Olementsoh, Circuit Judge. The facts sufficiently appear in the opinion.

<p> Taxation: Equity: Superior city charter: Poivers of council: Levy for “ general fund:” Street improvements: Assessment of benefits: Limitations: Constitutional laie: Appeal from assessment: Exclusive remedy: Costs: Limiting amount. </p> <p>1. The city charter of Superior provides (sec. 102, ch. 124, Laws of 1891) that the board of public works shall file “ a detailed statement of the amount of money that will be required for the ensuing fiscal year in their departments, and the city comptroller shall likewise file a statement of the amount required by the police department, fire department, and the remainder of the general fund; ” that the clerk shall “ place such estimates before the city council for their consideration, and the council shall thereupon, by resolution, levy such sums of money as may be sufficient for the several purposes for which taxes are authorized, not exceeding the limit provided by law.” In other sections the charter speaks of payments to be made out of the “general fund.” Sec. 112 provides that the directions given for levying and collecting taxes shall be deemed directory only, and that no error or informality in the proceedings, not affecting the substantial justice of the tax, shall in any wise affect its validity. Under such provisions it would seem that the estimates mentioned are designed merely as aids to the judgment of the council, not as limitations on its power, and that the levy of a certain sum for the “ general fund ” is not invalid merely because it rvas not included in the estimates filed and there was no detailed statement of the items of which it was composed.</p> <p>2. Even if such a levy is void, still, unless the tax is excessive or unequal and unjust, a court of equity will not interfere to set aside a sale based on that and other taxes, without payment of that tax as a condition of relief,</p> <p>3. Where, by a city charter, the cost of street improvements is chargeable to the lots or parcels of land to be assessed, “ in proportion to the benefits secured thereby,” an assessment according to the frontage of each lot on the street improved is void, unless it affirmatively appears that it was made upon an actual view of the property and a consideration of the benefits actually accruing to each parcel,— even where the charter constitutes the property fronting upon the improvement as the assessment district.</p> <p>4. Where the cost of street improvements is chargeable to the lots and parcels of land benefited thereby, an assessment upon the property fronting the improvement only, with nothing to show that the proper officers determined, in the exercise of their judgment, that no other property was benefited, is presumed to be unequal and unjust, and payment by a property owner of his proportion of the assessment is not a condition precedent to his obtaining equitable relief against the assessment.</p> <p>5. A statute by which the right to contest the validity of special assessments for street improvements is barred as soon as improvement bonds are issued, which may be within forty days after the assessment of benefits is completed, without actual notice to landowners, and before work on the improvement is actually begun, is invalid.</p> <p>6. An appeal given by a city charter from an assessment of benefits, upon which the only remedy given to the appellant, if successful, is that the difference between the amount assessed and the amount adjixdged to be paid as benefits shall be paid by the city, does not preclude an action to set aside an unequal and void assessment, even though the charter provides that said appeal shall be the only remedy of the landowner “for the redress of any grievance he may have by reason of the making of such improvement.”</p> <p>7. A county tax to pay the expense of placing stones from the county in the state building at the Columbian World’s Fair is unauthorized and void.</p> <p>8. If, in an equitable action, the court awards costs to a party, it cannot limit the amount thereof.</p> <p>The question what public purposes will justify the use of money raised by taxation is considered in an extensive note to Daggett v. Col-gan (92 Cal. 53) in 14 L. E. A. 474; and the necessity of benefits to sustain assessments for improvements is the subject of a note to Re Ma-dera Irrig. Dist. (92 Cal. 296) in 14 L. E. A. 755.— Eep.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>Frederick T. Pay, the appellant’s assignor, was a money broker, engaged in placing mortgage loans, for clients, upon farming lands in the states of Wisconsin, Minnesota, and the Dakotas. This business' grew to be very large. He made loans for the respondent, amounting to upward of $30,000, in upward of thirty loans. From time to time, as the loans were paid in, he reloaned the money. The loans-were made in the respondent’s name, and the securities were-delivered to and kept by her. They were delivered by her to' Day in case they were to be collected or foreclosed, and on whatever occasion she might determine. Day’s custom-in making loans was to take a second mortgage - upon the. same property, in his own name, to secure his commissions, expenses, and disbursements. He collected respondent’s interest, and whenever interest or taxes were in default he received the mortgages from her, and foreclosed them in her name. Sometimes he bid in the mortgaged premises at her foreclosure sale in his own name, and on resale credited the respondent with the proceeds. Sometimes he foreclosed his own second mortgage, instead of foreclosing her first mortgage, and bid in the premises in his own name. Before making the assignment hereafter mentioned he made quitclaim deeds of the lands so standing in his name, by virtue of such foreclosures, to the respondent, and placed them among her papers in his hands. He did not notify her of' such quitclaims, nor deliver them to her, otherwise than to-place them among her papers without her knowledge. In some cases he advanced the interest which was in default on her securities, and paid the taxes which were in default against the mortgaged premises, or bought up the tax certificates ; but he did not notify the respondent of such payments or advances, and she was ignorant that the mortgagors were in default in payment of interest or taxes.</p> <p>On the 3d day of June, 1893, Day made an assignment, for the benefit of his creditors to the appellant. At the" time of making such assignment he had in his hands, for collection and foreclosure, papers and securities belonging to the respondent, representing nine of the several loans. In connection with these securities" he had paid taxes, advanced interest, and disbursed expenses of foreclosure proceedings. Besides these disbursements he claims to have made similar disbursements to a considerable sum for the protection and foreclosure of other loans made for the respondent, of which the securities were not then in his hands. These securities, representing the nine loans, came by the assignment to the hands of the appellant, as the assignee of Day. As such assignee he claims a lien upon the papers and securities, with the right to retain possession of them, for reimbursement of all Day’s expenditures and advances in connection with these nine specific loans, not only, but he claims, also, a general lien upon these securities for similar expenditures and advances which Day made in connection with other loans.</p> <p>This is a proceeding in the assignment matter, on behalf of the respondent, to obtain possession of the papers and securities in the said nine several loans. The respondent offers to pay to the assignee $717.51 to reimburse the expenditures of Day for taxes and foreclosure proceedings on account of these nine loans. She offers to reimburse all moneys expended by him for taxes paid and tax certificates bought after th’ese securities were put into his hands for collection or foreclosure, and the expenses of foreclosure in all the following cases: (1) Where the title has become vested in her by the 'foreclosure of her first mortgage; and (2) all cases which are in statu quo, or in which the first mortgage is in process of foreclosure, or in which the land has been bidden in in her name but the equity of redemption has not yet expired. As to the taxes which were paid before the mortgages were put into his hands for collection, and the interest advanced by him for the several ísortgagors, without her knowledge, she deems that these were mere voluntary payments, which created no legal charge against her and no lien upon her papers; and as to those other cases where Day-obtained title to the lands by the' foreclosure of his own second mortgages, she #eeins that whatever disbursements were made by him were voluntary and for the advancement of his own interests and the protection of his own securities, and created no charge against her nor lien upon her papers. She also deems that whatever lien Day might have upon her papers and securities is a specific lien upon the securities benefited by the expenditure, and not a general lien for a balance due upon all the transactions in which Day has been acting for her.</p> <p>The cause was tried before a referee. The referee found the facts in substance as above detailed, and held, as matter of law, that the respondent was entitled to the possession of the papers on payment of the sum tendered. The report was confirmed by the circuit court, and judgment rendered accordingly, from which this appeal is taken.</p> <p>They contended, inter alia, that by advancing to the petitioner the interest on her mortgages, under the circumstances, Day became and was subrogated, to the extent of the sum so advanced, to all the rights which the petitioner had against the lands upon which said sums were a charge or lien. SMivner v. Tirrell, 21 L. R. A. 673, 674; Emmert Thompson, 49 Minn. 386; Arnold v. Green, 116 N- Y. 566; Bush v. Wadsworth, 60 Mich. 255. See, also, Blodgett v. Hitt, 29 "Wis. 169, 181; Levy v. Martin, 48 id. 198, 205; Hough v. TEtna L. Ins. Go. 57 Ill. 318, 11 Am. Rep. 18. By the payment of taxes on said lands Day became and was subrogated to the lien of the state, and said lien for taxes is paramount to the mortgage lien of the petitioner. Cooley, Taxation, 351;' Horton v. Ingersoll, 13 Mich. 409; Levy v. Martin, 48 Wis. 198; Fislce v. Brunette, 30 id. 102; Evans v. Burns, 67 Iowa, 179; Gan'rettson v. Scofield, 44 id. 35; Hew England L. & T. Go. v. Young, 81 Iowa, 732; Weston v. Meyers, 45 Neb. 95; Adams v. Osgood, 42 id. 450; Whittaker v. Wright, 35 Ark. 511; Bingo v. Woodruff, 43 id. 469; Gurry v. Gv,rry, 87 Ky. 667, 12 Am. St. Eep. 504. The amounts which Day paid for taxes and for foreclosures, etc., in and about the management and protection of the petitioner’s lands, are a legal charge against the petitioner, and entitle Day to a lien on the papers in his hands. Chappell v. Cady, 10 Wis. Ill; 1 Am. & Eng. Ency. of Law, 428; Arians v. Briekley, 65 Wis. 26. The petitioner is not entitled to the possession of the papers demanded, as against the assignee, while the charges and liens above mentioned remain unsettled. The petitioner is amenable to the rule that they who seek equity must do equity, and that complete equity must be done between the parties. Weackel v. Litchfield., 13 Allen, 417; Thomas v. B., F. K. & P. R. Go. 109 TJ. S. 522. A trustee is not bound to surrender up the trust property until an accounting is had and he has been repaid all proper costs and advancements. Beach, Mod. Eq. Jur. § -276; Perry, Trusts (2d ed.), §§ 907, 910; Jones, Liens, § 1177; Johnson v. Leman, 19 Am. St. Eep. 63, and note.</p> <p>argued, among other things, that the payments by Day were voluntary. Clcmcyv. McEnery, 17 Wis. 177; Bancroft v. Abbott, 3 Allen, 524; Whiting ». Aldrich, 117 Mass. 582; Beach v. Ycmdenburgh, 10 Johns. 361; Walkill v. Mamakating, 14 id. 87; Denby v. Moore, 1 Barn. & Aid. 123; Skyring v. Greenwood, 4 Barn. & Ores. 281. Day had no lien on the papers; and if he had it is now lost and cannot be revived. Mechem, Agency, §§ 676-680, and cases cited.</p>

Appeals from an order of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge. This is an action to set aside a special assessment against plaintiff’s property for the laying of an asphalt pavement in’ front thereof.

<p>Contracts: Construction: Disallowance of patents: “ Thermostat: ” “Automatic machine: ” Joint promise: Rescission: Judgment.</p> <p>1. Extrinsic evidence as to the meaning of the word “thermostat” in a contract is inadmissible, that word having a fixed and definite meaning.</p> <p>S. A contract of sale of corporate stock provided that the vendors should refund to the vendee a specified part of the purchase money if the patents applied for by one of the vendors “ for thermostat and automatic machine ” should be disallowed in substance. There were pending at the time six applications by such vendor for patents on thermostats or improvements in thermostats, and one application for a patent on a clockwork device to change automatically, at predetermined times, the temperature at which a thermostat would maintain the heat. Held, that such clockwork device was the “ automatic machine ” referred to in the contract.</p> <p>3. Under such contract the vendee was entitled to a return of the specified part of the purchase money if the patent on the automatic machine was disallowed in substance, even though all the other patents were allowed. '</p> <p>4. The contract of sale being a joint one on the part of the vendors, and there being nothing to show any severalty of interest, the promise to refund is construed as a,joint promise; and the vendee having, as authorized by one of the vendors, paid for the stock by advancing the purchase money directly to the corporation, the other and surviving vendor became liable, on the disallowance of the patent for the automatic machine, to refund the agreed portion of the purchase money.</p> <p>. 5. No rescission or return of the stock was necessary in such case to entitle the vendee to enforce the contract..</p> <p>"6. A judgment in favor of the defendant upon one of three counterclaims, but not specifically disposing of the others, is held a bar to any future recovery upon such others, where it recites the verdict upon them in favor of the plaintiff.</p>

<p>Highways: Dedication: Plat: Acceptance: Revocation: Bight of purchaser of lot to have streets kept open: Cuide sac: Nuisance: Equity.</p> <p>1. The owner of land in a city made a plat thereof, on which was designated a street named W. Place, connecting at its western end with a public street, but terminating at its eastern end on the land of such owner and not connecting with any other street. The city expressly refused to accept such plat, but the owner graded W. Place and sold lots fronting thereon. Afterwards, however, he and his grantees of the land abutting on the eastern third of W. Place treated such portion as private property, and were compelled by the city to pay assessments upon it as such for the opening and improvement of another street. Such eastern portion of W. Place was never used by the public as a highway, and had been fenced off from the western portion before the plaintiff acquired title (by mesne conveyances) to a lot fronting on the latter. 'Held, that such eastern portion of W. Place never became a public street, and that plaintiff had no right to remove said fence or to have it abated as a nuisance. Winslow and MARSHALL, JJ., dissent. '</p> <p>"2. Special or peculiar damage, differing not merely in degree but in kind from that which is deemed common to all, must have been suffered in order to give a private party a right of action to abate a public nuisance.</p> <p>U. Equity cannot be successfully invoked merely to inflict injury or damage on the defendant without securing any substantial right or benefit to the plaintiff.</p>

<p>Appeals from orders of the superior court of Milwaukee county: J. 0. Ludwig-, Judge.</p> <p>The West Superior Iron & Steel Company is a Minnesota corporation, which owned and operated a large plant for the manufacture of iron and steel, and a large amount of real and personal estate, in Douglas county in this state. In March of the year 1894 it owed a large amount of debts and was insolvent. Creditors were pressing, and its property was being levied on and taken by attachments. The Lehigh Coal <& Iron Company was one of its creditors, having two judgments for large amounts, upon which executions issued to Douglas county had been returned wholly unsatisfied. On March 28,1894, the Lehigh Coal ds Iron Company commenced an action, in the superior court of Douglas county, in the nature of a creditors’ action, on behalf of itself and all other creditors of the West Superior Iron & Steel Company, against the West Superior Iron & Steel Company, the Land & Rimer Lmprovement Compa/ny, James E. McGrath, as sheriff of Douglas county, the Central Trust Company, ■ and Robert Kelly, creditors of the West Superior Iron & Steel Company, and others, stockholders in that corporation, asking for a sequestration of the property of the debtor corporation and the appointment of a receiver. On the 29th day of March, 1894, the superior court of Douglas county made an order requiring the said defendants to show cause before that court, on the 23d day of April, 1894, in effect, why the said property should not be sequestrated and a receiver thereof appointed, and that in the meantime the defendants entirely refrain from all manner of interference with the property of the debtor corporation. This order was served upon all the principal defendants, prior to April 1, 1894. On April 18,1894, the defendants the West Superior Iron & Steel Company, the Land <& River Improvement Compamy, and some others, appeared and demurred to the complaint therein.</p> <p>On April 19, 1894, the Northwestern Iron Company commenced an action, in the superior court of Milwaukee county, against the West Superior Iron & Steel Company, the Land <& Rimer Improvement Company, and James E. McGrath. These defendants were also defendants in the earlier action, which was pending in the superior court of Douglas county. On the same day of the service of the summons and complaint in this later action, the defendant the West Superior Iron & Steel Company served its unverified answer, thus waiving delay; and the superior court of Milwaukee county thereupon, on the same day, made an order by which it declared the West Superior Iron & Steel Company to be insolvent, and appointed Robert Kelly receiver of all its effects, both real and personal, and enjoined the Lehigh Coal c& Iron Compamy and all other creditors of the insolvent corporation from taking any further proceedings or bringing any actions against it. Kelly took immediate possession of the assets. The appellants had no notice of these proceedings or order until long afterwards.</p> <p>The proceedings in the Milwaukee superior court were afterwards so amended as to make the appellants the Lehigh Coal <& Iron Company and 8. T. Norvell, another creditor of the insolvent corporation, defendants therein, and the complaint was so amended as to be in the nature of a creditors’ bill in behalf of the Northwestern Iron Qompcmy and alL other creditors of the West Superior Iron & Steel Company. The appellants answered in that action, setting up, among other things, the pendency of the action in the superior court of Douglas county, and the order made therein enjoining interference with the property of the debtor, and asking that the action be dismissed, and the receiver discharged, and the property held subject to the jurisdiction of the superior' court of Douglas county, all of which was refused. On June 20, 1895, the complaint in this action in the superior court of Milwaukee county was held by this court not to state a cause of action. 90 Wis. 570.</p> <p>The motion pending in the superior court of Douglas county, on the order to show cause, returnable April 23, 1894, had been submitted and held for decision until this time. The superior court, then, on June 21, 1895, made an order by which it appointed Thomas G. Alvord receiver of the property of the West Superior Iron & Steel Company. Alvorcl qualified by filing an approved bond, and at once took possession of the plant and property of the Iron & Steel Company, in the absence of Robert Kelly, and without resistance by the parties in charge. On the same day he served upon Kelby a copy of his appointment and bond, and notified him that he had taken possession of the property.</p> <p>On June 22,1895, two orders to show cause why the order which appointed Robert Kelly receiver and enjoined the creditors from further proceedings should not be vacated, issued by the superior court of Milwaukee county, one on the motion of the Lehigh Goal c& Iron Company and one on the motion of 8. T. Norvell, returnable July 1, 1895, were served. At the same time an order to show cause why Thomas G. Aboard should not be punished for contempt of the court, by his interference with the possession of the receiver Robert Kelly, made by' the same court, and returnable on the same date, was served. July 1, 1895, the court overruled, in both cases, the motions of the Lehigh Coal A Iron Company and of S. T. Korvell to vacate the order by which Robert KelVy had been appointed receiver. On their motions, the Illinois Steel Company was permitted to intervene, to show that it had made certain important contracts with Mr. Kelly, as receiver, which were not then completely executed, and to urge that the complete execution of these contracts be not disturbed by the vacation of the receivership. In the motion to punish Alvord for contempt, an order was made which adjudged AVoord to be in contempt and directed a writ of assistance to be issued to restore Mr. Kelly to possession of the plant and property. From each of these three orders an appeal is taken.</p> <p>They argued, among other things, that the order to show cause issued by the superior court of Douglas county and its restraining order were in effect an equitable levy upon the property, and placed the property in the control of that court. Bragg v. Caynor, 85 Wis. 468; Heichritten v. Elizabeth Oil Cloth Co. Í12 U. S. 294; Belmont K. Co. v. CoVwmbia IAS. Co. 46 Fed. Rep. 336; Tomlinson A W. Mfg. Co. v. Shatto, 34 id. 380. The injunctional order contained in the order to show cause was a judicial process from the superior court of Douglas county. Beach, Injunctions, § 1. The order appointing the receiver by the Milwaukee court and directing the persons in control of the property to deliver the same to the receiver, was in effect a vacation and dissolution of the restraining order of the superior court of Douglas county. It restrained the proceedings in a court of co-ordinate jurisdiction. This was inadmissible. Platto v. Deuster, 22 Wis. 484; Endter v. Lem non, 46 id. 300. The order appointing the receiver by the superior court of Milwaukee county was therefore without jurisdiction and a nullity. Orient Ins. Oo. v. Sloam,, 70 "Wis. 611; Wood v. Lake, IB id. 85; Stein v. Benedict, 83 id. 610. And it is immaterial whether the Milwaukee court attempted to do this directly or indirectly. Peck v. Jenness, 7 How. 612.</p> <p>They contended, inter alia, that the appellants lehigh Goal <& Iron Go. and S. T. Norvell acquiesced, for a period of •nearly a year after they became parties to the action, in the maintenance of the receivership, and allowed rights of other creditors to accrue thereby, they themselves traded with the receiver as such, and recognized his capacity to deal with the receivership property. Under these circumstances they are estopped from denying the jurisdiction of the court to appoint the receiver. Brown v. lake Superior I. Go. 134 U. S. 530; Tyler v. Savage, 143 id. 79, 97; Hollins v. Brier-field G. <& I. Oo. 150 id. 375, 380; Bigelow, Estoppel (5th ed.), 673; littlejohn v. Turner, 73 Wis. 113; Boynton F. Go. v. Sorensen, 80 id. 594. The respondent Kelly was appointed receiver more than a year before the appellant Alvord was appointed. The time of appointment of receiver and not of the institution of suit is the test of priority between re-ceiverships on creditors’ bills. Bay v. Buckingham, 87 Wis. 217, 221; 5 Thomp. Corp. § 6855; Wilmer v. A. & R. A. L. R. Go. 2 Woods, 409, 427; East Tenn.,V. & G. R. Go. v. A. c6 F. R. Oo, 49 Fed. Rep. 608; Merchants’ c§ P. Nat. Bank v. Masonic Hall, 63 Qa. 549.</p>

<p>ApplicatxoN for leave to bring an action to annul tbe franchises of the Ja/nesville Water Compa/ny.</p> <p>The facts are stated in the opinion.</p> <p>[No brief on file.]</p> <p>To the point that the forfeiture, if any, had been waived, they cited Affiy Gen. v. F. d¡ B. B. Co. 6 Ired. Law, 456; Inre Equity G. L. Co. 10 N. Y. Supp. 801; People v. TJ. da D. B. Co. 128 N. Y. 240; People v. Manhattan Co. 9 "Wend. 361; State v. Fourth N. H. Turnpike, 15 N. H. 162; 5 Am. L. Eeg. (N. S.), 583; Doe v. Meux, 4 Barn. & 0. 606; People <o. Lake St. El. B. Co. 54 Ill. App. 348, 361; Comm. v. H. Y., L. E. & W. C. da B. Co. 10 Pa. Co. Ct. Eep. 129; Milford da C. T. Co. v. Brush, 10 Ohio, 111; State v. Bcmk of Charleston, 39 Am. Dec. 135; Foster v. Joliet, 27 Fed. Eep. 899; IF. S. v. Metropolitan B. Co. 21 Wash. L. Eep. 787.</p>

<p>Evidence: Contracts: Memorandum in account booh: Witnesses: Husband and wife: Agency: Refreshing recollection: Admissions: Transaction with person since deceased.</p> <p>1. The fact that a memorandum of a' contract of sale was written in-the vendee’s ledger by his bookkeeper, at his direction and in the presence of both parties, does not render it admissible to prove-the terms of the contract. •</p> <p>2. The fact that the vendee’s wife, as his bookkeeper, wrote such memorandum in his ledger and read it over in the presence of the-parties, did not render her competent to testify to the terms of the-contract, where she did not, as her husband’s agent, take any part in making it.</p> <p>3. A witness who had testified that he heard a contract of sale made; that the vendee dictated it to his wife, and she wrote it down in a book at his direction, in the presence of both parties, and then read it to them; and that he stood where he could see it, though not close enough to read it,— should have been allowed to identify the writing in the book, and, if he could identify it, might use it to refresh his recollection.</p> <p>4. A memorandum of a contract so made and read over to the parties without dissent is, if properly identified, substantive evidence, as an admission of the parties.</p> <p>5. In an action for the price of goods sold to defendant by plaintiff’s intestate the defendant as a witness, was asked if he ever notified the vendor that the £ o >ds were not in accordance with the contract. Held, that an objection on the ground that the question called for a personal transaction with a deceased person was properly sustained, in the absence of any suggestion that the notification was by letter.</p>

'Winnebago county: N. S. G-ilsoN, Judge. Action on a policy of fire insurance issued by tbe defendant to tbe plaintiff, to recover tbe value of 1,247 cases of matches, alleged to have been totally destroyed by fire; and $135.75 for injury caused by tbe same fire to 908 other cases of matches, all insured by the defendant in tbe amount of $1,500, except as in tbe policy provided, which contained tbe provisions of tbe “ standard fire insurance policy,” so-called, under tbe act…

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. BueNell, Circuit Judge.</p> <p>Oh the 6th day of April, 1888, the Ingalls, White Rapids & Northern Railway Company executed three several promissory notes, of $1,000 each, to J. K. Kiel. Kiel indorsed them in blank, and under his indorsement was the? blank indorsement of Choate dk Bray. In this condition they were negotiated to the First National Bank of Menominee, Mich. Kiel paid the notes to the holder, and brings this action against Choate'do Bray for contribution. He alleges that both indorsements were for the accommodation, of other persons, J. H. Kiel and Peter Grattan, and that at the time of indorsement it was agreed between them that,, as between themselves, Kiel should be liable for one half, and that Choate db Bray should be liable for the other half. The main contention on the trial was whether it was competent to show this agreement between tbe indorsers, as to their liability as between themselves, by oral evidence. It was urged for the defendants that the admission of such evidence was in violation of the rule that oral evidence is incompetent to contradict or vary the terms of a written contract. The court received the oral evidence. The trial resulted in a judgment for the plaintiff, from which this appeal is taken.</p> <p>To the point that evidence of a conversation between Kiel and Choate prior to the indorsement is inadmissible to modify the subsequent indorsement, they cited Charles v. Denis, 42 Wis. 56-58; Smith v. Caro, 9 Or eg. 278, 287; Johnson v. Ramsa/y, 43 N. J. Law, 279; Martin v. Cole, 104 U. S. 30, 37; Eaton v. McMahon, 42 Wis. 484; Chaddock v. Vanness, 35 N. J. Law, 517; Doolittle v. Ferry, 20 Kan. 230; Farr v. Ricker, 46 Ohio St. 265; Johnson v. Clover, 121 Ill. 283, 286; Courtney v. Hogan, 93 id. 101, 104; Moorman v. Wood, 117 Ind. 148; Rodniey v. Wilson, 67 Mo. 124; Dale v. Gear, 38 Conn. 16; 2 Parsons, Notes & B. 24; Liebscher v. Kraus, 74 Wis. 387; Abrey v. Crux, L. R. 5 C. P. 37; Young v. Austen, 4 id. 553; Adams v. Wordley, 1 Mees. & W. 374.</p>

<p> Health officer: Powers: Action to restrain city from maintaining isolation hospital in town. </p> <p>The health officer of a town has no authority under seo. 2, eh. 167,. Laws of Í883 (making it his duty to take such measures for the prevention, suppression, and control of contagious diseases as: niay in his judgment be needful and proper), or otherwise, to-maintain an action in his official capacity to restrain a city from, maintaining a hospital for contagious diseases in his town, on the ground that it is detrimental to the health of the inhabitants of the town. If such action can be maintained at all, the town itself' is the proper plaintiff.</p>

W. BueNell, Circuit Judge. On January 24,1893, the Ripon Paper Box Company was a corporation located and doing business at Ripon. The defendant and his wife owned three fourths of the capital stock ■of the corporation.

<p>Appeal, from a judgment of tbe county court of Winnebago county: 0. I). ClevelaNd, Judge.</p> <p>The facts are stated in the opinion.</p>

Winnebago ■county: Geo. W. BukNell, Circuit Judge. This action was brought by the plaintiff, as administratrix -of the estate of her deceased husband, Christ Schmidt, to recover damages against the defendants for causing his death by their negligence while he was in the employ of the defendant company of which the defendant Noble was superintendent. 'The plaintiff sought to examine the said Noble and the officers of the Wooden Ware Company under see-4096, S. & B. Ann.

W. BueNell, Circuit Judge. The action is based on the following facts: On January 8, 1888, one Peter Grattan executed his promissory note for $2,000 to Bra/y dk Ghoate for money furnished at the time. It was afterwards negotiated by Bray There was a verdict and judgment for the defendants, from which the plaintiffs appeal.

<p>Appeals from orders of the circuit court for Fond du Lac county: N. S. Gilson, Circuit Judge.</p> <p>Plaintiff in each case was in possession and had the legal title to a quantity of wood, under a conveyance by bill of sale absolute on its face, but in fact as security for debts due from the Wisconsin Furnace Company to the plaintiffs. On the 30th day of August, 1893, the debts were due, and exceeded in each case the value of the -wood. Plaintiffs severally applied to the defendant for insurance against loss on the property by fire. Each explained to defendant’s agent the character of the title, so that such agent fully understood the facts in that regard; and thereafter the defendant, through such agent, in consideration of the payment of $250 as premium, issued to plaintiff Carey a policy of insurance, insuring him against loss of his wood by fire till the 30th day of August, 1894, to the amount of $10,000; and a policy was likewise issued to plaintiff First National Bank of Fond idu Lac, in consideration of the sum of $125, insuring it until the 30th day of August, 1894, against loss by fire on its wood to the amount of $5,000.</p> <p>Each policy provided, among other things, as follows: •“ This policy shall be void if the interest of the assured be other than unconditional and sole ownership,” and “ no officer, agent, or other representative of this company shall have the 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 attached hereto.”</p> <p>The wood was destroyed by fire, and all the conditions of the policy in regard to proofs of loss were complied with. After waiting the time specified in the policy for the payment of the loss, and on the failure and refusal of defendant to pay the same, these actions were brought on the policies. The complaint in each action states all the facts in regard to the assured’s title to the wood, and sufficient to constitute a good cause of action, unless- the fact that the wood was held as security renders the policies void under the provision in regard to sole and unconditional ownership. The facts in regard to the title fully appearing upjon the face of the complaint, a general demurrer was interposed in each case, which was overruled, and from the orders entered these appeals were taken.</p> <p>cited Johannes v. Standard F. Office, 70 Wis. 196, and cases cited; Imperial F. Ins. Go. v. Dunham, 117 Pa. St. 460; Hanover F. Ins. Go. v. Schrader, 31 S. W. Rep. 1100; Hough v. City F. Ins. Go. 29 Conn. 10; Gaylord v. Lamar F. Ins. Go. 40 Mo. 13; Rockford Ins. Go. v. Nelson, 65 Ill. 415; Clapp v. Union Mut. F. Ins. Go. 27 N. JEL 143; Noyes v. Hartford F. Ins. Go. 54 N. Y. 668; Curry v. Comm. Ins. Go. 10 Pick. 535; Ramsey v. Dhcenix Ins. Go. 17 Blatchf. 527; Berry v. Am. Gent. Ins. Go. 132 N. Y. 49; Wood, Eire Ins. § 274; Lorillard F. Ins. Go. v. McGvMoch, 21 Ohio St. 176; Appleton I. Go. v. British Am. Ass. Go. 46 Wis. 24; Allen v. Charlestown Mut. F. Ins. Go. 5 Gray, 389.</p>

S. Gilson, Circuit Judge. Action to set aside a conveyance of land' on the ground of fraud. The facts are stated in the opinion. -

S. Gilson, Circuit Judge. To the point that ice formed on artificial ponds and nonnav-igable streams belongs to the owner of the soil under the water, they cited Gould, Waters, § 191; 3 Lawson, Rights, Rem. ■& Pr. § 1345; 9 Am. & Eng. Ency. of Law, 860, and notes 3, 4; id. 862; Anderson, Law Diet. 519, 520; Bigelow <o. Shaw, 65 Mich. 341; Brown v. Cunningham, 82 Iowa, 512; Allen v. Weber, 80 Wis. 531.

<p> Justices' courts: Jurisdiction: Second adjournment: Sickness of justice. </p> <p>The allowance of a second adjournment before a justice of the peace in the absence and without the consent of the defendant, and without the oath or affidavit required by sec. 3631, R. S., deprives the justice of jurisdiction, even though such adjournment was “by consent of the plaintiff, and in consequence of sickness of the court.” The course to be pursued in case of the sickness of the justice is that prescribed by sec. 3586.</p>

S. Gilson, Circuit Judge. The city of Manitowoc was incorporated by an act of the legislature of 1870. .It was organized of territory which was a part of the town of Manitowoo, and extends entirely across the town, so as completely to separate the town into two parts, at a distance of about two miles removed from each other, and not at any point contiguous to each other.

S. Gilson, Circuit Judge. This is an action to recover damages for the death of plaintiffs intestate, caused by alleged negligence on the… Held: as matter of law, to have been the first and only cause of the death of the deceased. E. S. sec. 4393; Butler v. M. da St. P. R. Go. 28. Wis. 487; Annas v. M. da AT. R. Go. 67 id. 46, 61; Bales Shore da M. S. R. Go. v. Bodemer, 139 Ill. 596; Klanowslei a>: G. T. R. Go. 57 Mich. 525; Townley v. O., M. dk St. P. R. Go. 53 Wis. 626.

<p>Mortgages: Foreclosure: Failure to file notice of lis pendens: Jurisdiction: Judgment: Collateral attack: Docketing.</p> <p>1. A judgment of foreclosure of a mortgage entered without a notice of Ms pendens having been filed as required by sec. 8187, S. & B. Ann. Stats., though irregular, is not void and is good as against collateral attack.</p> <p>2. Sec. 2905a, S. & B. Ann. Stats., providing that a judgment affecting real estate “shall only he a lien from the time it is actually docketed,” has no reference to a judgment of foreclosure of a mortgage, since that merely enforces a lien previously created by the mortgage itself.</p>

<p>Appeal from a judgment of the circuit court for Richland county: Geo. Clementson, Circuit Judge.</p> <p>This was an action in equity to set aside a mortgage and the foreclosure thereof by advertisement, so far as affects the homestead of the plaintiffs. The evidence showed that the plaintiffs, who were husband and wife, on the 2d day of January, 1889, for a valuable consideration, executed a mortgage for $467.58, covering 120 acres of land, of which forty aci'es was their homestead, to T. J. Shears and O. A. Metscher, who were partners and received the same as partnership property. The mortgage purported to be properly witnessed ' and acknowledged, but the plaintiffs introduced evidence tending to show that it was never in fact witnessed nor acknowledged. The mortgage was recorded. Afterwards the’ firm of Shears & Metscher dissolved, Mr. Metscher retiring, and Mr. Shears taking the assets and assuming the debts of the partnership by oral agreement. After the dissolution, and on May 26, 1891, Shears sold and delivered the notes and mortgage, for a valuable consideration, to the defendant, Blackburn, and executed a written assignment thereof to him, which was witnessed, acknowledged, and recorded: The notes not being paid, Blackburn foreclosed the mortgage by advertisement, under the authority to so foreclose contained in the mortgage, and upon such sale the sheriff sold-the entire property to the defendant, and executed’ a certificate of- such sale on the 1st day of September, 1891.</p> <p>The court entered findings and judgment as follows: “ The defendant, Blackburn, in open court having stated his willingness to take from the plaintiff in this action, or any other interested party, the principal of the mortgage that was given to Shears & Metscher, and thereupon to release said mortgage and quitclaim all his interest in said' land, and the plaintiffs in this action having made no offer, either prior to the commencement of this action or pending, to pay- any portion of the mortgage indebtedness in question- and the court, being of the opinion that before the plaintiffs can come into court and ask for the relief they demand they should do equity by paying or offering to pay the indebtedness secured by this mortgage, without the costs of.foreclosure by advertisement, therefore finds that unless by the 20th day of May the plaintiffs in this case pay to the defendant, Blackburn, the principal sum secured by said mortgage, and costs of this proceeding incurred by the defendant, to be taxed, that a decree be entered dismissing the plaintiffs’ complaint upon the merits, and decreeing that said foreclosure proceedings are valid and absolute. Now, therefore, on motion of Eish & Bancroft, attorneys for defendant, it is hereby ordered, adjudged, and determined by the court that said judgment of foreclosure and sale thereunder' is' hereby affirmed in all thing's by the court, and the proceedings therein declared to be regular and according to law.It is further ordered and.adjudged that the plaintiffs herein may have restitution of said premises upon payment by them' of the am'ount of the principál in said mortgage, to wit, $467.58, together with the costs' of this proceeding, taxed at $68.67, on or before the 20th day of May, 1893; the defendant to thereupon transfer t'o said plaintiffs all his right, title, and interest, to said plaintiffs or their legal representatives, in.andto the premises described in said mortgage.' ' It is further ordered that the defendant recover the costs' h'erbin at sixty-eight and sixty-seven hundredths dollars ($68.67).” Erom-this judgment'the plaintiffs have appealed. ' •• ></p>

<p>Usury: Lex loci contractus: Forfeiture of interest: Statute construed: Equity: Tender of principal.</p> <p>1. In an action to foreclose a mortgage on land in .this state given in ■ ■ another state to secure a note made and payable there, the judgment to be given, in respect to the questions of usury and interest, is such as the courts of- that, state would give- according to its laws.</p> <p>2. Ch. 74, E. S. of Illinois, 1881 (providing that if any person shall contract to receive a greater rate of interest than eight per cent, he ■ shall forfeit the whole of said interest and shall be entitled oniy to recover the principal sum due), imposes the loss of all interest, both that accruing before and that accruing after the. maturity of the obligation, . ..</p> <p>' 3. The-rule of equity requiring a tender of the principal sum loaned ■ as a condition of relief does not apply where, in an action to forfe- . . . close a mortgage, the-borrower sets up usury merely as .a defense, claiming only what the statute secures to him. . i</p> <p>4. The provision of sec. 1692, R. S., that to make his plea of usury ■ available a defendant must prove a tender of the principal sum, is not applicable to a' case arising under and governed by the stat\utes of another state against usury.</p>

<p>Appeal from an order of the circuit court for Grant county: Geo. ClemeNtsoN, Circuit,Judge.</p> <p>This action is brought by the plaintiff, as administrator de bonis non, with the will annexed, of the estate of James Moore, deceased, against the defendant Edward Oarthwaite, who is alleged to have in his possession certain unadminis-tered assets of the estate of the deceased. The complaint alleges that the deceased, by his last will, left all his personal property to his wife, Sarah Moore, for her life, and to his only child, John S. Moore, after her death, and made John S. Moore executor of his will; that the will was admitted to probate, and John S. Moore qualified as executor, but did nothing about the administration; that he lived in the same house with his mother, and they two “controlled and managed ” the property; that the property consisted mostly of money and money securities; that John S. died June 8,1891, leaving a widow and child; that after the death of John S. his widow and his mother, Sarah Moore, took possession of the estate of James Moore, and assumed control and management of it; that Sarah Moore afterwards intermarried with the defendant Garthwcoite; that they gave a part of the estate of James Moore to the widow of John S. Moore, and kept the rest themselves; that Sarah Moore died, and the said Edward Gcvrthwaite took possession of and retains all the assets of the estate of James Moore which were with him and Sarah at the time of her death; that the plaintiff does not know the amount or form of such assets. The complaint demands judgment for an accounting of the property which came to the possession of the defendants, and that they be required to deliver the same, or the proceeds thereof, to the plaintiff. Gwrthwaite answered.</p> <p>On the trial the defendant Garihwaite .interposed a demurrer ore tenus to the complaint, which the court sustained. Erom the order sustaining the demurrer this appeal is taken.</p>

ClehentsoN, Circuit Judge.' This action was brought by the plaintiff against the defendant, a corporation doing an insurance business on the cooperative plan, on certificate of membership No. 7,844, issued to William McCoy, April 11, 1889, which matured and became payable to plaintiff as beneficiary, by his death by suicide, July 8, 1892, unless the manner of such death constitutes a defense to plaintiff’s claim.

Eeeoe to review a judgment of the circuit court for Rich-land county: R. G. Siebeoeee, Judge. The defendant was convicted of the publication of a criminal libel, and brings error. The • contention is now made that the information is insufficient to sustain the conviction, because it does not charge a publication of anything.

<p>Constitutional law: Protection of fish and game: Ex post facto law:' Class legislation: Distinction between localities: Destruction of property declared to be a nuisance: “ Due process of law: ” Compensation to oivner.</p> <p>1. A general law for the punishment of offenses, which endeavors by retroactive operation to reach acts before committed, and also provides a like punishment for the same acts in the future, is void only so far as it is retrospective, and valid as to future cases within the legislative control.</p> <p>3. An act (ch. 331, Laws of 1895) regulating the method and times of catching fish in the waters of this state is not, in the absence of any constitutional provision against it, invalid as class legislation because it makes different regulations for different waters, or contains certain provisions applying to certain localities or waters only, or wholly exempts certain waters from all such regulations.</p> <p>3. Such act does not, merely because it discriminates between different localities and waters and between different kinds of fish,, deny to any person “the equal protection of the laws,” within the meaning of sec. 1, art. XIV, Amendm. Const, of IT. Sr, nor make any distinction between resident aliens and citizens in reference to the possession or enjoyment of property, in violation of sec. 15, art. I, Const, of Wis.</p> <p>4 Provisions of such act declaring that nets in unlawful use áre pub-' lie nuisances, making it the duty of wardens and peace officers to destroy the same forthwith when found in such unlawful use, and exempting said officers from all liability to the owners for such destruction,, are not repugnant to sec. 1, art. XIV, Amendm. Const, of IT. S. (declaring that no state shall “ deprive any person of . . . property without due process of law ”), nor to sec. 9, art. I, Const, of Wis. (declaring that “ every person is entitled to a certain remedy in the laws for all injuries ” to his property).</p> <p>The right to compensation for property destroyed in abating a public nuisance is considered in a note to Orlando v. Pragg (31 Fla. Ill) in 19 ii. B. A. 196.— Bep.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: O. B. Wyman-, Circuit Judge.</p> <p>This was a proceeding by quo warranto, in which the relator claimed the office of town clerk of the town of Hamilton, in La Crosse county, as against the defendant. Upon trial before the court, it appeared that both parties were candidates for the office at the town meeting April 3,1894, and according to the canvass the relator received 130 votes, and the defendant 146; but whether the relator was elected1 depended upon whether thirty-two votes cast for the defendant by electors residing in the village of West Salem,, situated in said town, were qualified electors of the town and entitled to vote at said town meeting. If said thirty-two votes were not legal votes, then the defendant received only 114 legal votes for the office, and the relator received the highest number of votes, and was duly elected and entitled to have and hold said office.</p> <p>The validity of said thirty-two votes depends upon the following facts, and whether the said thirty-two ■ electors of said village of West Salem were, at the time of said town meeting, qualified electors of said town of Hamilton and1 entitled to vote for the defendant at said election: The' village of West Salem was incorporated as a village under the provisions of ch. 40, R. S., and acts amendatory thereof, June 8,1893, and formed out of a part of the territory of the town of Hamilton. At the first election for village officers held in said village, in August, 1893, an assessor for said village was elected, pursuant to ch. 391, Laws of 1887; and he-qualified, but did not perform any official duty. No election has ever been held, either in said village of West Salem or in the town of Hamilton, for the purpose of determining-whether said village should be an independent municipality from said town, in the manner provided by law.</p> <p>The court held that all electors residing in the village of West Salem, April 3, 1894, were duly qualified electors and entitled to vote for town officers of the town of Hamilton at said town meeting, and that the thirty-two votes cast for the defendant by such electors were valid and legal votes; that the defendant was then duly elected to the office-claimed by the relator, and entitled to hold the same; and! judgment was given for the defendant and against the relator, from which the latter appealed.</p>

<p> Elections: Ambiguity in ballots: Parol evidence. </p> <p>Where, in an action to determine the right to a town office, it appeared that there were in the town two men of the same name, both eligible to the office, one of whom, commonly known as C. H. O. Sr., was a candidate therefor and the other, commonly known as C. H. O. Jr., was not a candidate, ballots bearing the name of O. H. C. Jr. were unambiguous and could not be shown, by parol evidence to have been intended for C. H. C. Sr.</p>

<p> School districts: Division: Apportionment of school funds. </p> <p>1. Where a newly created school district had not existed for a sufficient length of time to enable its clerk to make a report, under sec. 462, R. S., showing that all school money received from the state by such district had been used in paying a legally qualified teacher, and that a school had been taught in such district by such a teacher for at least six months during the year, it was not entitled, under sec. 558, to have any part of the town school fund apportioned to it, and cannot recover from an older district, a part of.whose territory had been detached to form the new district, the amount apportioned to such older district on account of persons of school age residing in the territory so detached, Gassville v. Morris, 14 Wis. 440; School Directors of Pelican v. School Directors of Rode Falls, 81 Wis. 428; School Directors of Eagle River v. School District No. 1, 81 Wis. 543, distinguished.</p> <p>2. Where a portion of the territory of one political subdivision is detached to form a new one, the former, in the absence of ,a statute providing otherwise, retains all its property, powers, rights, and privileges. •</p>

<p> Pleading: Amendment: Fires set by locomotive: Limitations. </p> <p>1. Where neither the original complaint nor a. proposed amended complaint was verified, and there was no affidavit or statement under oath in support of the cause of action stated therein, the allowance of the amendment more than two years after service of the answer, without terms, and apparently as of course, was erroneous.</p> <p>2. In an action for injury to land caused by fires set by a locomotive, it was an abuse of discretion to allow the complaint tobe amended by inserting a claim for injury by the same fire to other land a mile distant, where the application was not made until nearly three years after the action was commenced and nearly nine years after the fire, and said claim, as an independent cause of action, was long since barred by the statute of limitations.</p>

<p> Wills: Construction. </p> <p>1. A will, after giving to the testator’s wife a life estate in all his property, made several bequests in form as follows: “I will and bequeath to my son J. the sum of $200, to be paid to him by my daughter B. [the residuary legatee] within one year after the death of my wife, if she survive me, and which, when paid, to he in full of his share of my estate.” Held, that such bequests were absolute, and the condition in respect to the wife’s survivorship affected only the time of payment.</p> <p>2. Where there is a devise to one person in fee, and, in case of his death without issue, to another, the death referred to is death during the lifetime of the testator, unless the language of the will shows a different intention; and if the devisee survives the testator he takes an absolute estate in fee.</p>

<p>Mortgages: Foreclosure: Notice of lis pendens: Premature entry of judgment: Appeal: Recital in judgment, when not conclusive.</p> <p>3. A judgment of foreclosure of a mortgage rendered less than twenty days after the complaint was filed is premature under sec. 3187, R. S., requiring notice of the pendency of the action to be filed twenty days before judgment, since until the. complaint is filed the filing of such a notice is inoperative.</p> <p>2. The objection that the entry of judgment in such case was irregular may be raised for the first time in this court on an appeal from the judgment.</p> <p>3. A recital in the judgment that due notice of the pendency of the action had been filed on a certain day more than twenty days prior to the entry of the judgment will not be held conclusive where the file mark on the original complaint in the judgment roll shows that it was filed within such twenty days.</p>

<p> Master and servant: Personal injuries: Special verdict: Proximate earner Assumpticm of risk try minor servant: Evidence: Admissions. </p> <p>1. In an action for personal injuries alleged to have been caused by defendant’s negligence it was error not to submit in the special verdict, in some form, upon request, a question as to whether the defendant’s negligence, if any, was the proximate cause of the injuries; and, the right to a special finding on that subject not having been waived, the defect was not supplied by a general verdict for the plaintiff.</p> <p>2. The true test as to a minor servant’s assumption of the ordinary risks of the employment, and his contributory negligence, is not whether he knew' and comprehended the danger, but whether he ought to have known and comprehended it.</p> <p>3. In an action for personal injuries, a statement as to the manner in which they were sustained, which had been made by the plaintiff in the presence of witnesses, reduced to writing by one of them, read over to plaintiff, pronounced by him to be correct, and then subscribed by him and the witnesses, is, when properly identified,, competent evidence on behalf of defendant, as being in the nature of an admission by plaintiff, and also to show that he had made statements conflicting with those made by him as a witness at the trial. A mere possibility that the writing might have been misread to plaintiff, or changed since, should not exclude it, where no such suspicion is'fairly suggested by the paper itself or by facts in evidence.</p>

<p>Judgment affirmed pursuant to stipulation.</p>

<p>Municipal corporations: Settlement of claim for personal injuries: Action, when lies: Mandamus. •</p> <p>1. The rule that an accord must be followed by a satisfaction in order to be binding does not preclude parties from liquidating a disputed claim by an executory contract for the payment of a less amount than that claimed.</p> <p>2. "Where the common council of a city had allowed a sum smaller than that claimed in settlement of a claim for personal injuries, a written demand by the claimant for an order on the city treasurer for the amount so allowed constituted an unconditional acceptance of such settlement and made a binding contract for the payment of the sum so allowed.</p> <p>3. A provision in a city charter that no action can be maintained against a city until a claim has been presented and disallowed or the council has neglected to act thereon for a specified period,, does not require presentation of a claim based upon a contract made by the allowance by the council and acceptance by the claimant of a certain sum in settlement of a claim for a larger amount.</p> <p>4. Although a city charter provides that no money shall be drawn from the city treasury except on an order signed by the mayor and clerk, one whose claim has been allowed by the council need not proceed by mandamus to compel those officers to draw the order, but may bring an action against the' city to recover the debt.</p>

<p> Deeds: Proof of execution after death of grantor. </p> <p>A. certificate of a notary public in another state that the subscribing witnesses to an unacknowledged conveyance of land in this state had stated to him under oath, a few weeks after the death of the grantor, that they saw her sign, seal, and execute the instrument, is not such proof as is required by sec. 2327, R. S., providing that “ when any grantor shall die . . . not having acknowledged his conveyance, the due execution thereof may be proved by any competent subscribing witness thereto before any court of record.”</p>

B. Wyman, Circuit Judge. Action to recover damages sustained by the plaintiff by reason of alleged negligence of the defendant.

B. Wyman, Circuit Judge. ■ This is an action to recover damages for the death of the plaintiff’s intestate, which is alleged to have been caused by the defendant’s negligence. The intestate, Peter Christian-son, was eighteen years and two months old at the time of his death, and was employed in the defendant’s furniture factory at Eau Claire, and had been so employed for a little more than two years.

B. WthaN, Circuit Judge. The defendant bought a quantity of pine saw logs from, one George B. Early, for which he was indebted to him in a large sum. He sold the logs and had the money in hand to pay Early. The plaintiffs claim to own a one-half interest in the logs, and bring this action to recover its value. The sum claimed by them does not exceed the sum due from the defendant to Early.

<p>Appeals from a judgment of the circuit court for Wood county :• Chas. M. Webb, Circuit Judge.</p> <p>Action to recover on several insurance policies for loss'by fire of property alleged to have been covered by such policies at the time of such fire.</p> <p>It was stipulated in the policies that the property was insured while contained in the one-story frame store building situated on the south side of Cranberry street in Centraba. The one-story frame store building referred to, at the time all the policies were issued, except one issued by the Western Asmrance Company, June 11, -1893, consisted of a main building and a lean-to or shed in the rear, with a door for passage from the former into the latter, the two structures being used together as one building. Thereafter and before the fire the shed was moved back about twenty feet, and an addition to the main building was built, extending back to within three feet of the shed, to which it was connected by a platform nailed to both structures,'with doors for convenient passage from such addition by way of the platform to the shed. Thereafter the shed was used substantially as before in conducting the store business, goods being kept there the same as when the policies were issued, up to the ■time of the fire which destroyed or injured-the goods therein., Liability for the loss was denied on the ground that the property when destroyed was not in the store building, hence not covered by the policies.</p> <p>On December 11, 1893, an action was commenced against the Western Assurance Company on three of the policies, and in Januarj^, 1894, an action was commenced against the Milwaukee Mechanics' Insurance Company on one policy. Thereafter both actions were consolidated by order of the court, and tried, with the result that' judgment for plaintiffs was rendered, from which judgment defendants appealed separately.</p> <p>They contended, inter alia, that in a case and under a policy of this kind the location described in the policy is essential to the insurance, and if changed avoids the policy. Wood, Eire Ins. (2d ed.), § Fl ; Severance v. Continental Ins. Co. 5 Biss. 156; 1 Biddle, Ins. § 639; Providence ds W. B. Co. v. Yonlcers F. Ins. Co. 10 R. I. 74; Eddy St. I. Foundry v. Hampden S. & M, F. Ins. Co. 1 Cliff. 300; Liebenstein v. ¿Etna Ins. Co. 45 Ill. 303 Boynton v. Clinton dk E. Mut. Ins. Co. 16 Barb. 254; Ly-coming Co. Ins. Co. v. Updegraff, 40 Pa. St. 311; English v. Franhlin F. Ins. Co. 55 Mich. 273; Hartford F. Ins. Co. v. Farrish, 73 111. 166; Bryce v. Lorillard F. Ins. Co. 55 N. Y. 240; Lyons v. Providence Washington Ins. Co. 43 Am. Rep. 34; Shertzer v. Mut. F. Ins. Co. 46 Md. 506; Pelly v. Royal Exch. Ass. Co. 1 Burr. 341; Holbrooh v. St. Paul F. dk M. Ins. Co. 25 Minn. 229; London & I. F. Ins. Co. v. Craves, 12 Ins, L. J. 308; Harris v. Royal Canadian Ins. Co. 53 Iowa, 236; Longueville v. Western Ass. Co. 51 id. 553; Hough v. Peoples' F. Ins. Co. 36 Md. 398; Md. F. Ins. Co. v. Cus-dorf, 43 id. 506; West v. Old Colony Ins. Co. 9 Allen, 316; Moadinger v. Mechanics' F. Ins. Co. 1 Bennett, Fire Ins. Oas. 285; 8. C. 2 Hall, 490; Storer v. Elliot F. Ins. Co. 45 M'e. 175; Annapolis dk E. R. Co. v. Baltimore F. Ins. Co. 32 Md. 37 Noyes v. N. W. Nat. Ins. Co. 64 Wis. 415, and cases cited; Hews v. Atlas Ins. Co. 126 Mass. 389.</p> <p>argued, among-other things, that the changes made in the building did not ' materially change the location of the insured stock so as to-avoid the policies then in force. Home Mut. Ins. Co- v. Roe, 71 Wis. 33;- Wood, Eire' Ins. §§ 51, 77, 247; Liebenstein v. Baltic F. Ins. Co. 45. Ill'. 301; Bigler v. N. Y. Cent. Ins. Go. 20 Barb. 635; Meadowcrqft v. Standard F. Ins. Go. 61 Pa. St. 91; Peoria M. & F. Ins. Go. v. Lewis, 18 Ill. 553; Plaice v. Exchange Mut. Ins. Go. 12 Gray, 265; Cargill v. Millers' ds M. M. Ins. Go. 33 Minn. 90; Pettit v. State Ins. Go. 41 id. 299; West v. Old Colony Ins. Co. 9 Allen, 316; Fair r. Manhattan Ins. Go. 112 Mass. 320.</p>

<p> Replevin: Withdrawal of answer: Amendment of complaint: Measure of relief. </p> <p>The defendant in an action of replevin commenced in justice’s court having, when the cause came on for trial in the circuit court on appeal, withdrawn his answer and left the courtroom, it was error to allow the complaint thereafter to be amended so as to increase the amount alleged as the value of the property, since the ease then stood as if there had never been any answer, and, under sec. 2886, R. S., the relief granted could not exceed that originally de-* manded in the complaint.</p>

<p>Appeal from a judgment of the circuit court for Waushara ■county: Ohas. M. Webb, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for "Waupaca county: Chas. M. Webb, Circuit Judge.</p>

<p>' Appeal from an order of the circuit court for Waupaca eounty: Chas. M. Webb, Circuit Judge.</p> <p>- The plaintiffs Michdel Grady and Marry Royal brought this action against the defendants, James Cannon, Albert E. Dedolph, John Maloso, George Hazer (administrator of the estate of Isaac Brown, deceased), and Mattie L. Cottrell and Edmund EL Gibson (as executors of the will of Horton Cottrell, deceased), for the partition of lot 9 in block 6, and lot 3 in block 14, in Millerd & Taft’s plat of the city of New London, Waupaca county, of which premises Michael Grady died seised, September 8, 1860, leaving a widow, Hannah Grady, surviving, who died in 1891, and eight brothers and sisters surviving, as his heirs at law, one of whom, John Grady, died in 1811, intestate, leaving the plaintiffs as his heirs at law; and it seems clear that the plaintiffs succeeded to an undivided one-eighth interest, at least, as his heirs, which descended to their father from the said Michael Grady in 1860.</p> <p>The statements of the complaint as to the conveyances and tbe descent of their interests in the premises' are extremely uncertain, obscure, and .confusing. It is alleged, howeverj as a matter of fact, that the parties to the action have the following undivided estates in the premises: (1) The plaintiff Michael J. Grady, one undivided one-seventh; (2) the plaintiff Mary Royal, one undivided one-seventh; (3) the defendant James Cannon, an undivided five-sevenths of the west half of lot 9; (4) the defendant Albert E. Dedolph, an undivided five-sevenths of the east half of lot 9; (5) the defendant John Maloso, an undivided five-sevenths of lot 3. It is further alleged that a mortgage was given by John Maloso, August 6, 1892, to Isaac Brown, now deceased, on lot 3, for the sum of $175, now held by the defendant George Hazer, as administrator of the estate of the said Brown; that the. defendant Albert E. Dedolph executed a mortgage on the east half of lot 9, but to whom is not stated, which was afterwards assigned to the defendants Mattie L. 'Cot-trell and Edmund H. Gibson, as executors of the last will of Horton Cottrell, deceased. The plaintiffs prayed judgment for partition according to the rights of all the parties; and that the interest of the plaintiffs be set off freed from the lien of said mortgages; and that if partition could not be had without material injury to the interests of the parties, then that a sale of said lots be made and a division of the proceeds be had between the parties, etc.</p> <p>The defendants John Maloso and George Hazer, administrator, etc., demurred on the .ground, among others, that several causes of action had been improperly united. Upon argument, the court made an order sustaining the demurrer ■on the ground thus assigned, giving the plaintiffs the right to amend on payment of costs, from which order the plaintiffs appealed.</p> <p>argued, among other things, that if several persons have distinct and separate interests in the subject, matter, but the' interests of each and ali are founded on one and the same basis, and depend on the determination of one central point in the case, all of such persons may be joined and made parties defendant. Eitnam, Trial Proc. § 344; Hamlin v. Wright, 23 Wis. 491; Leinen-hugel v. Kehl, Y3 id. 238; LLunnewell v. Taylor, 3 Gray, 111. It is a rule in partition that where one decree will dispose of the whole case, and the rights of all the parties can be adjusted in the decree, the court will entertain jurisdiction necessary to adjust the whole matter. Young v. Tchoards, 33' S. 0. 404; Barnes v. Lynch, 151 Mass. 510; Harlan v. Lang-ham, 69 Pa. St. 235; Whitton v. Whitton, 38 N. H. 127; Bige-low v. Littlefield, 52 Me. 24; Story, Eq. Jur. § 656c/ Morse v. Stockman, 65 Wis. 36. See, also, Pa/rker v. Harrison, 63 Miss. 225.</p>

<p>Appeal from a judgment of the circuit court for Portage county: Chas. M. Webb, Circuit Judge.</p> <p>Brawley brought this action, in the county court of Portage county, against D. H. Yaughn and J. 8. Mitchell, as-copartners of the firm of Yaughn & Mitchell, upon two-joint promissory notes made by them by their firm name. There was no service of process upon Yaughn, and he did, not appear in the action. Property of Mitchell was attached,, and he appeared and defended. There was judgment in favor of the plaintiff and, in form, against both defendants. From this judgment Mitchell appealed. In the circuit court he withdrew his answer. The court took the plaintiff’s-proofs, and gave judgment against MilcheU alone and his, sureties upon his appeal. The appeal is by Mitchell alone from that judgment.</p>