Volume 93 — Wisconsin Reports

<p>Appeal from a judgment of the circuit.court for Waupaca county: Chas. M. Webb, Circuit Judge.</p> <p>Action brought to restrain the defendant from throwing refuse matter from its starch factory into the Waupaca river, upon the theory that such refuse matter polluted the river and injured the plaintiff as a riparian owner. The court found that plaintiff was, and had been for several years, the owner of lands along the shores of the Waupaca river below defendant’s starch factory, upon which lands he resided with his family; that defendant had operated the factory for several years, during which time it had been customary to throw the refuse matter therefrom into the river, which resulted in polluting the waters thereof and of Weyauwega Lake in front of plaintiff’s farm so as to seriously injure the health and personal comfort of plaintiff and his family, and to prevent the use of the Avater of the river for domestic purposes, and that, unless restrained by the court, defendant would continue to so operate its factory and pollute the Avaters of the river, to plaintiff’s damage; that the plaintiff had sustained damages to the amount of $100. Judgment Avas accordingly ordered in favor of plaintiff for $100, and costs, and perpetually restraining and enjoining the defendant from depositing refuse matter from its factory into the Waupaca river, and from polluting the Avater of said river by the operation of its factory. From the judgment entered accordingly the defendant appealed.</p> <p>They contended, inter alia, that riparian proprietors on streams may cast sewage and waste material therein if they do not thereby cause material injury to public or private rights. The natural right of one proprietor to have the stream deseend to him in its pure state must yield in a reasonable degree to the equal right of the upper proprietors whose use of the stream for mill or manufacturing purposes rvill tend to make the Arrnter less pure for irrigation or domestic purposes so far as it affects the lower proprietor. And the rule becomes much more liberal and, as a learned Avriter says, is one of public importance where useful manufactories are established along the banks of the str-eam. Slight inconveniences, occasional annoyances are not recognized as grounds for perpetual injunctions. G-ould, Waters, § 220; Richards's Appeal, 51 Pa. St. 105; Broolc-line v. Maehintosh, 133 Mass. 215; New Boston C. <& M. Co. v. Pottsmlle W. Co. 54 Pa. St. 164; Bigelow v. Hartford B. Co. 14 Oonn. 565; Huclcelstiné’s Appeal, 70 Pa. St. 102; High, Injunctions (1st ed.), § 522; Wood, Nuisances, §§ 791-793.</p> <p>They argued, among other things, that the deposit of refuse matter, residuum, or waste from defendant’s factory created a nuisance. Board of Health of New Brighton v. Gasey, 3 IT. Y. Supp. 399; Barclay v. Comm. 25 Pa. St. 503; Seaman v. Lee, 10 Hun, 607; Woody ear v. Schaefer, 57 Md. 1. ' Equity will reT strain the creation of a public nuisance at the suit of a person who will suffer private injury therefrom. Walker v. Shepardson, 2 Wis. 384; Oobb v. Smith, 23 id. 261. The injunction is not too broad. It does not matter whether the injunction closes the factory of the defendant or not. That is not a question for consideration here. 1 Wood, Nuisances (3d ed.), § 436; Robinson v. Baugh, 31 Mich. 291; Edwards v. Allouez M. Go. 38 id. 50; Pennoyer v. Allen, 56 Wis. 502. The following are cases illustrative of nuisances against the continuance of which equity has granted relief: Campbell v. Seaman, 63 N. Y. 568; Haskell v. New Bedford, 108 Mass. 208; Peck v. Elder, 3 Sandf. 126; Meigs v. Lister, 23 N. J. Eq. 199; Cleveland v. Gitieens’ G. L. Go. 20 id. 201; Bab-cock v. N. L. Stock Yard Go. id. 296; Holsman v. Boiling Spring B. Go. 14 id. 335; Goldsmid v. Tunbridge Wells Lmp. Gomm’rs, L. R. 1 Oh. App. 349; Att’y Gen. v. Steward, 20 N. J. Eq. 415.</p>

<p> Pleading: Joinder of causes of action:. Landlord and tenant. </p> <p>A cause of action for the wrongful withholding of leased premises after notice of intention to quit, subjecting the lessees to liability for double rent under sec.' 2185, R, S., and a cause of action for the wrongful conversion of personal property included in the same lease, by failure to deliver it to the lessor as therein provided, may be joined, under sec. 2647, S. & B. Ann. Stats., since they “arise out of the same transaction or transactions connected with the same subject of action.”</p>

<p>Appeal from, a judgment of the circuit court for Pierce county: E. B. Bundy, Circuit Judge.</p> <p>This is an action to recover damages resulting from an alleged defect in a highway in the defendant town. It appears that on the 1st of June, 1890, the plaintiff, with his wife, was riding along a highway in the defendant town, in a buggy drawn by a single horse. There was evidence tending to show that the traveled part of the highway contained deep gullies and large stones, by reason of which the buggy was tipped over and the horse became frightened and ran away, throwing out and seriously injuring the plaintiff’s wife. There was also evidence tending to show that the plaintiff’s wife was entirely incapacitated from labor for two weeks, and unable to do much work for sis months, by reason of her injuries. The evidence showed, without dispute, that the buggy and harness were destroyed, the horse damaged, and that the plaintiff had been obliged to expend $25 for medical assistance for the treatment of his wife. The entire amount of these practically undisputed damages was $109. It was claimed on the part of the defendant that the highway was not defective, but that the accident happened by reason of the breaking of a part of the harness. There are no exceptions to the judge’s charge contained in the bill of exceptions. The jury returned a verdict for the plaintiff for $172.50, and from judgment thereon the defendant has appealed.</p>

Appeal, from an order of the circuit court for St. Croix county: E. B. Bundy, Circuit Judge. This is an action for a permanent injunction, and a temporary injunctional order was granted against the defendant, upon motion, after hearing both parties, from which the defendant appealed.

<p>Appeal from a judgment of the circuit court for Buffalo county: E. B. Bundy, Circuit Judge.</p> <p>The plaintiff’s intestate was a section man on the defendant’s railroad. On the morning of Sunday, September 9, 1894, the hand car upon which the crew of which he was one was going out over its section on its tour of inspection came in collision with one of defendant’s locomotives hauling a fast stock train, and plaintiff’s decedent was killed. The action is under the statute to recover damages for his wrongful death.</p> <p>Ordinarily, this crew started out to its daily “work at 7 o’clock in the morning. On Sundays it made only a tour of inspection over its section, to see that the track was all right and the roadway safe, and was permitted to choose its own time for doing it. They had agreed on the previous evening to start upon this morning at 6:25 A. M. When they started out at 6:15 it was after sunrise, but the morning was dark by reason of a fog which prevailed and was increasing in density. At this season of the year many stock trains passed over this road; as many as seven or eight trains a ■day, and sometimes more. This was additional to the ordinary business of the road. It was necessary to run them as “ wild ” trains; that is, each one was run under the orders of the. train dispatcher at La Crosse, and not according to any time card. This rendered it impracticable to notify the section men of the time of their expected passage at any given point. But the section men- knew of the fact tljat such trains were to be expected, and were instructed that they must be on the lookout for them and take care of themselves; that they would have no signals. They did not •expect notification of the approach of such trains, other than the usual signals at crossings, stations, bridges, etc. This crew were all experienced in the business and knew the situation. Plaintiff’s intestate had been at work on this •section more than two years. This morning this crew had in anticipation that they were liable to meet one of these wild trains. They went slowly, listening, and stopped twice to listen for such a train. They did not expect signals, for none were promised them, but they listened for the noise or rumble of a moving train. The noise of their own car, with the jar and rattle of their tools upon it, prevented their hearing the train. They saw it, dimly, coming through the fog, not more than 200 to 300 feet away. This was their first absolute knowledge of the approach of the train. The foreman of the crew cried, “ Jump! ” Two saved themselves by jumping. The third, plaintiff’s intestate, was struck by the engine, thrown to one side, and killed.</p> <p>The engineer of the train had omitted none of the customary signals at crossings, stations, bridges, etc. The whistle had been sounded almost instantly before. the collision for the bridge across the Ohippewa river, and was heard by the engineer at the drawbridge, who also heard the noise of the collision. The bell had been constantly ringing through all the distance from St. Paul, moved by a steam bell ringer. Ho regulation or custom required the whistle to be sounded at other places than crossings, stations, and bridges; and at these places it was not for a signal to section men or other employees, but only to persons who were about to use the crossings. The engineer was at his post, and attentive to the coming track. He stopped his train without delay. The train was moving rapidly. These stock trains were fast-moving trains,— nearly as fast as the passenger trains,— to alleviate the sufferings of the animals carried, and to prevent loss to their owners.</p> <p>After the evidence of both sides was all in, the court granted a judgment of nonsuit. This appeal is from that judgment.</p>

<p> Real estate brokers: Commissions. </p> <p>A real estate broker is entitled to the agreed commission upon a sale of land, where the owner fixed the price, received the full amount stipulated for in his contract with the broker, and was to receive no more in any event, although, before his employment, the broker had shown the land to the purchaser and the latter had expressed a desire to meet the owner, and although the broker had rendered some services to such purchaser.</p>

Croix county: E. B. Bundt, Circuit Judge. Action to recover brokers’ commission on the sale of real estate. The plaintiffs, in December, 1893, were partners at Weyauwega, Wis., and were doing a real estate and commission business, making a specialty of the sale or exchange of medical properties and business.

<p>Appeal from a judgment of the circuit court for St. Croix county: E. B. Bundy, Circuit Judge.</p>

<p> Railroads: Injury to employee coupling cars: Obstruction between rails: Contributory negligence: Assumption of risk: Court and jury. </p> <p>1. A railway company is liable for an injury to an employee engaged in coupling cars, caused by his stumbling over piles of ashes which the company had negligently permitted to remain between the rails, if he was not guilty of contributory negligence and had not assumed the risk of injury from that cause.</p> <p>2. The foreman of a switching crew in the employ of a terminal and transfer railway company using forty miles of track and seventy switches, besides spur tracks, was injured while attempting, in the performance of his duties, to make a coupling between freight cars on a spur track by stumbling over piles of ashes between the rails and being caught between the cars. Upon the evidence — tending to show, among other things, that the day was dark, with rain and sleet falling; that the ash piles were from four to eight inches high, and covered with snow and ice; and that the fore-naan, whose duties did not require him to observe and make safe the condition of the tracks, had never seen them — it is held that he was not chargeable, as matter of law, with contributory negligence or assumption of the risk.</p>

<p>Appeal from a judgment of tbe circuit court for Sauk county: R. G-. Siebeckee, Circuit Judge.</p> <p>This action was to recover compensation for personal injuries alleged to have been received by plaintiff because of a defective and insufficient street in tbe defendant city. About eight feet of one of tbe beveled planks on tbe outer edge of a cross-walk in tbe traveled portion of tbe street bad been broken out so as to leave a drop of about eight inches from tbe top of such cross-walk to the surface of tbe street at that point. Plaintiff approached such crossing from tbe side opposite tbe defect, driving a span of horses-drawing a wagon loaded with block wood; tbe sticks, about sixteen inches long, piled crosswise about two feet high on tbe wood rack, with a loose board bottom and side boards,, but with no support at the ends. He was seated on top of tbe wagon, two or three feet from tbe front end, with bis feet up on tbe load. He could not see tbe defect as be approached it until too late to stop bis horses. He bad seen tbe defect about a week previous, but did not think of it at tbe time in question. Tbe horses passed over the crossing-at a walk. As tbe front wheels of tbe wagon dropped, part of tbe front tier of wood fell off, striking tbe horses and causing them to run, and by reason of tbe fall of tbe wood, and tbe tendency of other wood to fall, plaintiff was unable to manage the team, and in bis effort to do so be slid off the-load onto tbe tongue, and from there to tbe ground, breaking bis arm, and inflicting other bodily injuries upon him. Yerdict was rendered in bis favor. Exceptions were taken raising the questions here considered. Judgment was rendered in his favor, from which this appeal was taken.</p>

<p> Establishing lost will: Parties: Competency of witnesses: Husband and wife: Declarations of testator. </p> <p>1. The legatees, devisees, and heirs at law are 'all parties to a proceeding under sec. 3791, B. S., to establish a lost will, and are therefore incompetent, under sec. 4069, S. & B. Ann. Stats., to testify therein as to transactions or communications by them personally with the testator under whom they claim; and the husbands or wives of such parties, if not themselves parties to the proceeding, are not competent witnesses therein.</p> <p>2. Where it is established that a testatrix properly executed a valid will, and the same was last known to be in her possession but cannot be found after her death, there is a prima faeie presumption that she destroyed it with the intention of revoking it; and evidence of her declarations that she had destroyed the will and that she did not have it at the time of her death is admissible in support of that presumption.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Gr. Siebeokeb, Circuit Judge.</p>

<p> Deformation of contract: Intention of parties: Insurance against fire: Builder’s risk: Judgment: Determination of part of issues. </p> <p>1. The intention of the parties, to express and carry out which a written agreement will be reformed, must be the intention of both, parties as to something upon which their minds actually met.</p> <p>2. Thus, a policy insuring the owner against loss by fire on a building in process of erection by a contractor will not be reformed so as to insure the contractor also, where, although it was agreed in the building contract that the owner should insure the building so as to protect the contractor’s interest, the agent who issued the policy did not know of such agreement and was not requested, and did not undertake or intend, to write the insurance in that way.</p> <p>■'3. In our practice there is no such thing as an interlocutory judgment; and there can be but one final judgment in a case, which must dispose of all the issues and the rights of the parties.</p> <p>4. In an action upon an insurance policy the contractor erecting the insured building was joined as a defendant and pleaded two counterclaims, one of which was against the defendant insurance company for the reformation of the policy. An adjudication definitely and finally disposing of the matters embraced in such counterclaim, though denominated an order, is held to be a judgment and to be erroneous because determining a part only of the issues and rights of the parties.</p>

<p>Appeal from an order of the circuit court for Dane county: E. Gr. SiebeckeR, Circuit Judge.</p> <p>This was an action brought against the sureties on a guardian’s bond, for breach of the conditions thereof, in that the guardian failed to pay over the amount found due from him on the settlement of his final account. The youngest child •arrived at his majority on the 29th day of June, 1885. The guardian, without fault on the part of the eestuis que trust-ent, did not settle his accounts, either with them or with the proper court, until October 4, 1894. This action was thereafter commenced by appellants. The complaint sets forth facts sufficient to constitute a cause of action, unless the bar ■of the statute (sec. 3968, R. S.) applies. A demurrer was interposed to the complaint on the ground, among others, that the action was not commenced within the time limited by law, on which ground the demurrer was sustained, and plaintiffs appealed. [After the appeal was taken the defendant, Simeon Mills, died and the executor of his will was substituted as defendant.]</p> <p>They contended,' inter alia, that the trust relation ■existing between a guardian and ward is not determined by the ward coming of age. Taylor v. Hill, 86 Wis. 99, 106. The coming of age on the part of the ward does not relieve the guardian of his duty as trustee to manage and invest the funds of his -ward, but that duty continues so long as the trust relationship continues. Taylor v. Hill, 87 Wis. 669, 671; Olsen v. Thompson, 77 id. 666; Hellish v. Hellish, 1 Simons & S. 138; Pyatt v. Pyatt, 46 1ST. J. Eq. 285; Horgan v. Horgam,, 1 Atk. Ch. 489; Thomas v. Thomas, 2 Kay & Johns. 79; Yallop <o. Holworthy, 1 Cas. in Eq. Abr. 7, par. 10. The guardianship does not terminate and the guardian is not discharged until he has settled his accounts either with the court or with the ward. Stinson v. lea/ry, 69 Wis. 269; Hudson v. Bishop, 32 Fed. Rep. 519; Probate ■Court v. Child, 51 Yt. 82; Habhew v. Brise, 14 Beav. 345; Hotes v. Hadden, 14 S. C. 488; Nunnery v. Day, 64 Miss. 457; Harlow v. Laey, 68 Tex. 154. Even if the question were still open in this state, this court could not consistently follow the Massachusetts and Michigan cases, because in those states it has been held that the guardianship is effectually determined and brought to a close when the ward comes of age, that the trust then ends, and that the guardian has no further duty with reference to the care and management of the ward’s estate, but becomes either simply the debtor of the ward or the custodian of his property. Probate Judge v. Stevenson, 55 Mich. 322; MeKvm v. Harm, 141 Mass. 507. It follows, too, logically and necessarily, from the view taken by the Michigan and Massachusetts courts, that the statute of limitations begins to run in favor of the guardian when the ward comes of age, and that thereafter laches on the part of the ward to commence proceeding» against his guardian bars recovery. And so it has been held by the courts which agree with the Michigan and Massachusetts courts. Lambert v. Billheimer, 125 Ind. 519; State v. Henderson, 54 Md. 382, 354; Goleman v. Willi, 46 Mo. 236.</p> <p>They argued that the word “discharged,” as used in sec. 3968, R. S., refers to the time when the guardian is relieved of his office. This occurs when the relation of guardian and ward for any reason terminates, as by the death of the guardian or ward or by the arrival of the ward at the age of twenty-one years. Secs. 3964, 3966, R. S.; Field, Guardianship, § 136. After the ward reaches twenty-one years of age, the guardian is relieved from any duty or obligation to invest or manage the property of the ward. Schouler, Dom. Rel. 423; Over-ton v. Berners, 19 Ark. 623, 70 Am. Dec. 610; Oheever v. Oongdon, 34 Mich. 297; People v. Seelye, 146 Ill. 189; Jones v. Ward, 10 Yerg. 160; Sommers v. Boyd, 48 Ohio St. 648; Hutton v. Williams, 60 Ala. 107. It may be that a trust relationship still continues between the parties, but there is no active duty of investment or management. It may be, also, that the guardian is liable for interest upon the funds in his hands; but this is because of his duty to turn over the property to the ward as soon as he arrives at majority, and of course this obligation to pay interest continues after- the settlement of the accounts if the funds are not at once paid over. Fridge v. State, 3 Gill & J. 103, 20 Am. Dec. 463,469; Miaou v. Lama/v, 7 Eed. Rep. 180, 187; Jones v. Ward, 10 Yerg. 160, 168, 171. In Massachusetts and in Michigan, whence our statute is derived, the construction here contended for has been expressly adopted. Loving v. Alline, 9 Cush. 68; MeKim v. Mann, 141 Mass. 507; Probate Judge v. Stevenson, 55 Mich. 320. See, also, Hudson v. Bishop, 32 Eed. Rep. 519; Reed v. Bing, 93 Cal. 96; Seward v. Didier, 16 Reb. 58, 64. The courts of Massachusetts and Michigan recognize no inconsistency in the position that the statute in question should be construed as applying to the time when the ward arrives at the age of twenty-one years and the guardian is thus relieved of his office, and the position that when the ward comes of age the guardian is not simply the debtor of the ward, but is a trustee, chargeable with interest upon the funds of the ward, bound to render and settle his accounts, and against whom no cause of action lies or accrues until after his accounts have been settled. MeKim v. Mann, 141 Mass. 507; MeLane v. Outran, 133 id. 532; Murray v. Wood, 144 id. 195; Cobb v. Kempton, 154 id. 266; Tudhope v. Potts, 91 Mich. 490; Jaeobia v. Terry, 92 id. 275.</p>

Gr. Siebbokee, Circuit Judge. This is an action for personal injury at a highway crossing of the defendant’s railway track. The plaintiff was approaching the track from the westward. The conformation, of the ground is such that her view to the left was obstructed,, until she got very close to the railway track, by reason of a-high bank within the right of way, most of which consists, of a natural hill, through the foot of which the railway runs, making a small cut.

G-. Siebeokeb, Circuit Judge. Action for the wrongful conversion of personal property. The facts are sufficiently stated in the opinion. The appeal is from an order granting a new trial.

<p>APPEAL from a judgment of the circuit court for Dan& county: R. G. SIEBECKEE, Oircuit Judge.</p> <p>This was an action for the conversion of a large number of articles of personal property, of the alleged aggregate value of $2,000. The answer was a general denial, except as therein stated, and it set out, in substance, that a portion of the property claimed belonged to the plaintiff (enumerating it), which the defendant does not, and never did, claim; that a considerable portion of the property cousisted of fixtures attached to, and forming a part of, a certain store building and realty previously conveyed by the plaintiff to the defendant, and a large part of the said property had been previously sold by the plaintiff to the defendant as a part of a stock of merchandise and personal property.</p> <p>Upon trial before a jury the plaintiff gave evidence tending to show that he was the owner of the property in question, and tending to show a conversion and the value thereof, and rested. On the part of the defendant it appeared that the plaintiff had two stores,- one in Belleville, and one in Mt. Vernon, Wis.,- and that he entered into a contract to sell the said buildings and premises and stocks of goods to the defendant, December 16, 1893, for certain lands in Dakota; the contract of that date stating that the plaintiff had pur- -chased the Dakota lands for $24,000, and that the defendant had purchased the store building and two lots in Belleville for $7,000, and the lot and store in Mt. Yernon for $1,000, •and “ the entire stock of general merchandise contained in said store buildings, ... at invoice cost price, as shown by cost mark on goods.” The lands in Dakota were to be conveyed to the plaintiff free and clear of incumbrances, ■except as specified, and the store properties were to be conveyed to the defendant free and clear, etc., and the plaintiff was “to convey to the defendant, by bill of sale, the stocks -of general merchandise ” mentioned, the inventory of which was to be taken on or before January 15,1894; the plaintiff reserving a certain building used for a lime house, one corn-crib, a set of platform scales, and certain loose gates; and after the footings were agreed upon the said conveyances and bills of sales, etc., were to be delivered, and the difference in the consideration between the Dakota lands and the real estate in Belleville and Mt. Yernon, with “stocks of general merchandise,” when ascertained, was to be secured to the defendant by a mortgage on the Dakota lands. Possession of the respective properties was to pass with the delivery of the deeds on or before January 15, 1894, unless otherwise arranged. February 1, 1894, it was agreed that a new inventory of the stocks of goods should be taken, and provisions were made for carrying out the original agreement. March 13, 1894, a further written agreement was made, reciting that the plaintiff was ready to convey said stocks of goods and stores, — the personal property amounting to $15,104 in value, and, with the stores, making a total ■of $23,104, and the amount of real and personal property to be conveyed by the defendant was $26,040, — leaving a balance due the defendant of $2,936, and making further provisions for carrying out said trade, and providing for payment ■of certain incumbrances, etc.</p> <p>Under these agreements the lands in Dakota were conveyed to the plaintiff, and the stores and merchandise were •conveyed to the defendant; the merchandise by a bill of .-sale, an invoice having been taken. The property in dispute was specified in the transfer to the defendant as being “ all the general stocks of merchandise situate and being in the said store buildings,” and the consideration named was $15,101.52. The deed for the stores and lots specified a consideration of $8,000.</p> <p>The evidence tended to show that the property described in the complaint, except that to which the defendant made no claim, was, in the main, of two kinds,— store fixtures and furniture, tools, and implements that had been in use in and .about the stores. The defendant was asked by his counsel whether he had any conversation with the plaintiff as to buying any other property than is named in the deed,— any personal property. This was objected to on the ground that all the negotiations had been merged in the written instruments conveying the real property and the personal property, and that they could not be varied by parol. The court overruled the objection, and the defendant was allowed to testify that “the price of the real estate was to be $8,000, with the fixtures and furniture. I told him the property was high, but if he would put in these fixtures and furniture that I would take it for $8,000. He said he would do so. We have talked of it several times,— had a considerable talk. The negotiations commenced in December, and I took possession in March. The subject was all agreed upon before we commenced, and then we made some variations.” He identified the said written agreements as all relating to the same subject, — the real and personal property. Hereupon the court ruled that all testimony offered by the defendant to show that property was conveyed, not specifically mentioned in the written instruments, might be received, and the defendant was allowed to testify: “ I never took an invoice of the furniture and fixtures, but there was an invoice taken, of the goods which were kept for sale. The subject of taking an invoice of this furniture was spoken of by the plaintiff and myself, and it was said that it was not necessary; that it was bought as a whole and went with the real estate.”</p> <p>The court instructed the jury as to what constituted fixtures, and that the plaintiff could not recover therefor, and,, further, that if they found “ that there was an agreement between the parties, at the time claimed, that there was to be a sale of the personal property in question (not fixtures), and in pursuance thereof the property was delivered to the defendant, and he holds it by virtue of that understanding, then the plaintiff cannot recover.” The verdict was for the defendant, upon which he had judgment, and the plaintiff appealed.</p>

<p> Municipal corporations: Sewers and drains: Flooding private property. </p> <p>A city is liable for injury to private property, whether situated below or on the grade of the street, caused by surface water or sewage which, after having been collected in a public drain or sewer, escapes therefrom upon such property by reason of the negligent construction of such drain or sewer or the want of proper repair thereof or the negligent discontinuance thereof by closing up the outlet; and this rule applies to a drain or sewer over which the city has assumed and exercised control, even though it was originally constructed wholly or in part by private persons.</p>

<p>Appeal from, a judgment of the circuit court for Sauk county: R. Gf. Siebeceeb, Circuit Judge.</p>

<p> Master and servant: Bight to compensation: Estates of decedents: Amendment of pleading. </p> <p>1. One who lived with and labored as a servant for another, to whom he was not related, under her promise to compensate him for his services at her death, is entitled, if she did not pay him in her life» time, to recover the value of such services from her estate.</p> <p>2. In an action against an estate the complaint alleged that plaintiff performed services for the intestate under an express promise by her to bequeath to him all of her property at her death, and prayed judgment setting over to him all the personal property of the estate. The evidence showed merely an agreement to compensate plaintiff, and the value of his services was shown without objection. Held, that after the trial plaintiff was properly allowed to amend his prayer so as to ask to recover the value of his services in case he was adjudged not entitled to the whole estate.</p>

<p>Appeal from a judgment of tbe circuit court for Sauk county: R. Gr. SiebeoKee, Circuit Judge.</p> <p>Action of replevin growing out of tbe following state of facts: Plaintiff and defendant lived on tbe same farm, tbo former being tenant of tbe latter. Defendant bad a chattel mortgage on a span of borses belonging to plaintiff, to secure payment of a note for $50 and interest. Tbe mortgage was in tbe usual form, authorizing tbe mortgagee, if at any time he deemed himself insecure, to take possession of tbe mortgaged property and sell tbe same at public or private sale, with or without notice. Several months before tbe note matured, defendant, pretending to deem himself insecure, took tbe mortgaged property from tbe barn used by plaintiff, and put tbe same into another barn on tbe same premises controlled by defendant. Within a few hours thereafter, and on tbe same day, with no one present but bis two sons, and without notice to tbe mortgagor or anybody except those present, defendant sold the property to bis son for $48;. $1 being paid down at tbe time. Tbe property thereafter remained in tbe possession of tbe defendant, be pretending to bold tbe same as agent for his son. Three days thereafter plaintiff tendered to defendant the full amount due on the note, and demanded possession of tbe property. Defendant refused tbe tender or to deliver possession of tbe property, alleging that be would bold tbe same for $30 of other indebtedness plaintiff owed him. No claim was made at the time of such refusal for costs for tbe seizure and sale, or for any sum, on the note or otherwise, secured by the mortgage, in excess of the amount tendered.</p> <p>Plaintiff thereafter replevied the property in justice’s court, and kept the tender good by paying the money into court. He recovered judgment in the justice’s court, and defendant appealed. The horses were delivered to the plaintiff pending such appeal, the proper bond being given under the statute. On the trial in the circuit court, jury was waived. The court found all the facts as above stated, except that no objection was madp to the tender before suit brought, and also found the value of the team of horses at $150, and, as a conclusion of law, found, in effect, that the stipulation of the mortgage that the mortgagee might take the property in case he deemed himself insecure, and sell the same with or without notice, constituted a waiver of all notice of sale; that defendant, under the circumstances, had a right to sell the horses, and was entitled to. recover. Appropriate exceptions were filed to raise the questions presented here. Judgment for defendant was rendered on the findings, and plaintiff appealed.</p> <p>He contended that there is no evidence of any fraud, and if there were evidence of fraud that question could not be determined in an action at law. After the respondent had taken possession of the horses and sold them, whether lawfully, unlawfully, or fraudulently, re-plevin will not lie; but the appellant must bring his action in equity to set aside such sale, or bring an action against the respondent for a conversion of the property. Wells, Replevin, §§ 2225, 833, 337; Flanders v. Thomas, 12 Wis. 410; Mowry v. First Hat. Bank, 54 id. 38; Boyd v. Beaudin, id. 193; Powers v. Benedict, 88 N. Y. 605; Wise v. Grant, 140 id. 593; Chicago Bock Co. v. Foster, 48 Ill. 507; Holz-hausen v. Parkhill, 85 Wis. 446; Hichols v. Webster, 2 Pin. 234; Smith v. GooTbaugh, 21 Wis. 427; Parsons v. Welles, IT Mass. 419; Patehin v. Pieree, 12 Wend. 61; Huébner v.. Koebhe, 42 Wis. 319; Frisbee v. Lcmgworthy, 11 id. 375;: OUne v. Libby, 46 id. 123; Evans v. Graham, 50 id. 450.</p>

<p> Estates of decedents: Evidence: Execution of written instrument: Per~ sonal transactions. </p> <p>1. A written instrument purporting to have been executed by a person since deceased is not, under sec. 4192, R. S., proof that it was-so executed, but its execution must be proved as at common law..</p> <p>2. The plaintiff in an action upon a due bill purporting to have been given to him by a person since deceased is incompetent, under sec. 4069, R. S., to testify to the delivery to the deceased of a note against, her husband as a consideration for the due bill.</p>

<p> Deed: Setting aside for fraud: Evidence. </p> <p>In an action to set aside a quitclaim deed of fifty-eight acres of land ' on the ground of fraud by which plaintiff was induced to believe that it conveyed three acres only, it appeared, among other things, that the utmost value of the land was $986; that upon fifty-five acres there were incumbrances amounting to over $600, and the title was just about to be extinguished by a foreclosure sale, against which no provision had been made; that plaintiff’s interest was an undivided one-fourth, subject to the dower and homestead rights ■of her mother, who was but forty-six years old; that defendant had offered $5 for plaintiff’s interest in the unincumbered three acres, and plaintiff in reply had offered to sign off everything to defendant for $5 and a new dress; that defendant had accepted this offer in a letter stating all the facts, so that if there was any •misunderstanding it was due to plaintiff’s lack of attention; that the $5 was paid to plaintiff when the deed was executed, and she afterwards received and. retained $8 for the purchase of a new dress; and that defendant had made no fraudulent misstatements. Held, that the deed should not be set aside.</p>

<p> Contracts: Board, etc., furnished to father-in-law: Compensation: Pre~ sumption. </p> <p>One who furnished board and lodging and rendered services to his-. father-in-law at intervals during a period of twenty years is presumed to have done so gratuitously, where there was no express-agreement as to compensation and no intimation on his part during that time that he expected to be paid; and this presumption, is not overcome by his testimony that he intended all the time ta-malee claim for compensation, such intention not having been, manifested Until, being dissatisfied with his father-in-law’s will, he preferred the claim against his estate.</p>

<p>Appeal from a judgment of the circuit court for Outa-gamie county: John Goodland, Circuit Judge.</p> <p>Action to recover a balance of $60, wages as a traveling agent, alleged to be due on contract. On the 15th day of December, 1891, a written contract was made between the parties, whereby it was agreed that plaintiff should work for defendant for a term of years, in the capacity of traveling salesman and collector, for a stipulated sum per month; that the term of employment should commence on the 1st day of January, 1892; and that either party should have the right to terminate the contract on giving sixty days’ notice. Plaintiff commenced work under the contract as provided therein, and continued in defendant’s employ till about February 22, 1892, when he was discharged, without notice, upon the ground that he had committed a breach of such contract by engaging in the sale of goods for a rival concern, to the prejudice of defendant. Plaintiff received his pay up to the time of such discharge, and thereafter brought suit to recover for sixty days’ wages at the contract price. Defendant, by answer, as a defense, alleged breach of the contract, in that plaintiff had, during his term, engaged in the sale of machines for other concerns competing with defendant, as a justification for the discharge.</p> <p>A jury was waived, and the case was tried by the court. A finding was filed to the effect that all the • allegations of the complaint were true and those of the answer untrue. Exceptions were filed requisite to raise the questions here considered. Judgment was entered in favor of plaintiff, and defendant appealed therefrom.</p>

<p>Appeal from a judgment of the circuit court for Outa-gamie county: John G-oodland, Circuit Judge.</p> <p>The plaintiff was a corporation under the laws of New York, doing a manufacturing and wholesale business in New York, and the defendant was a retail dealer in goods and merchandise in this state. A short time prior to December 20, 1893, the defendant received from the plaintiff a sample card, containing a patch of large needles and a paper of hand sewing needles, and a circular letter describing the goods and the manner of putting them up, stating the price to be three cents per card, and a blank order for the defendant to fill in and send to the plaintiff if he desired to order goods of it. On December 20, 1893, the defendant sent to the plaintiff his advertising or letter head, whereby he ordered the plaintiff to put up for him, and ship by the cheapest way, “ 2£ M. Owl brand needle cards,” with his “ advertisement printed in space below the goods for that purpose, on each card,” in the sizes therein mentioned. The plaintiff received such order December 22, 1893, and at once sent forward to the defendant a statement, of which the following is a copy, to wit:</p> <p>“New York, Dec. 22, 1893.</p> <p>“Charles F. JBuch, Hortonville, Wis.— Dear Sir: We have received your order for 2-|- M. Owl Brand needle cards, one half M. each 6, 7,4-8,3-9,5-10, sharps, to be put up as soon as we can prepare the goods, with your name and special advertising matter printed on them. We read your advertisement as follows:</p> <p>ChaRles F. Buck,</p> <p>Dealer in Dry Goods, Clothing, Boots & Shoes, Hardware, etc. Also •dealer in Country Produce, Hortonville, Wis.</p> <p>“ Please check this all over carefully, making any changes or corrections you desire, and if O. K. sign and return to us in the inclosed stamped envelope, and we will proceed with jour order. Thanking you for the favor, we are</p> <p>“Yours resp’y,</p> <p>“ J. A. Coates & Sons, Ltd.”</p> <p>At the foot of that statement was the following, signed by the defendant, under date of December 26, 1893: “I have checked this all over carefully, and find it to be correct in every particular.”</p> <p>The goods so ordered were put up by the plaintiff as ordered, with the defendant’s advertisement printed thereon as so ordered, and were shipped to the defendant by the Merchants’ Dispatch Transportation Company, Eebruary 2, 1894; and the bill for the same was sent forward to the defendant at the same time, for “ 2,500 Owl brand needle cards, <9 .03, $75,” payable in thirty days. The defendant received the needles so shipped February 7, 1894, and thereupon notified the plaintiff to the effect that he had taken out 500 papers of needles, which would be all he needed, and asked the plaintiff to take back the balance. The plaintiff refused to take back the needles, and the defendant refused to pay for any of the needles.</p> <p>On May 2, 1894, the plaintiff commenced this action in justice’s court, to recover the amount of the bill, as for goods sold and delivered to the defendant at his request. The defendant answered, and in effect admitted the facts stated, but alleged, in effect, that by some mistake he had ordered more needles than he wanted, and supposed the’ plaintiff would rectify the same; but that after offering tO’ keep 500 papers, and selling several papers, he discovered the needles were worthless and not merchantable.</p> <p>The plaintiff recovered judgment in the justice’s court for-the amount of its bill and costs, and the defendant appealed: to the circuit court. At the close of the trial in that court ■ the jury, by the direction of the court, returned a verdict in favor of the defendant; and from the judgment entered thereon the plaintiff appeals.</p>

<p> Pleading: Demurrer: Parties: Negligent burning of insured property by third person: Subrogation of insurer. </p> <p>1. A complaint alleging the negligent burning by defendant of property owned by the plaintiffs W.; that certain insurance companies, joined as plaintiffs, had at the time of the fire policies of insurance in full force and effect “upon the said property of the. plaintiffs W., against loss and damage thereto by fire,” to the amounts named; and that said plaintiffs W. have received from the several companies the full amount of the policies, — is held sufficient to show that the plaintiffs W. were the persons insured by said policies.</p> <p>2. Where insured property is destroyed by fire through the negligence of a third person, the insurer who has paid the loss to the assured becomes subrogated pro tanto to the latter’s claim against the wrongdoer, and should properly join him as plaintiff in an action for such negligent burning.</p> <p>8. The question of misjoinder of plaintiffs, or whether the complaint, as to one or more of several plaintiffs, states a cause of action against the defendants, cannot be raised by demurrer under sec. 2649, E. S.</p>

This was an action to recover- the price of a car load of wheat shipped by the plaintiffs at Minneapolis, Minnesota, to the defendants at Kaukauna, Wisconsin, February 19, 1894, at the agreed price of §>485.07. The answer was, in substance, a general denial. Upon- trial before a jury the plaintiffs had a verdict for $506.85.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Eeaistk M. Eish, Judge.</p> <p>This is an action to remove a cloud from the title of certain realty in the city of Milwaukee. The facts are without dispute, and are substantially as follows:</p> <p>Charles T. Melms died February 19,1869, leaving a widow and seven children, of whom the eldest was twenty and the youngest three years of age at that time. He tiwned a tract of land in the city of Milwaukee, of which the northern portion was occupied by a large brewery. On the southern portion,, facing the south, he had constructed a large dwelling house, which was his homestead. The brewery and homestead were heavily mortgaged at the time of his death, and his unsecured debts amounted to about $100,000 over and above the mortgages. By his will he gave all his property to his wife, and appointed her guardian of their minor children, and also appointed her and his brothers William and Leopold his executors, with the express desire that, if possible, his business should be continued by his wife and his debts paid out of the same. The will was proven in March, and the executors and executrix were thereupon appointed and gave the required bond. The widow sought to carry on the business for a time, but in a few months apparently became convinced that she could not do so. She then caused to be surveyed a piece of land ninety feet square, in the-center of which the dwelling-house or homestead stood, and connected this with the street to the south by a strip forty-five feet .wide and sixty feet long, making in all an exact quarter of an acre. This is the piece of land involved in this action, and from which the plaintiffs asked to have certain clouds on the title removed. Mrs. Melms then, on the-15th of November, 1869, by petition in writing, made application to the county court of Milwaukee county, stating; that she had become convinced that the estate had become-insolvent and would have to be sold for the payment of debts, waiving the provision made for her in the will of her husband, and praying that the homestead, described above,, be set apart to her, and that her dower be assigned and the statutory allowances made to. her, all of which was done by order of the county court, dated November 19, 1869.</p> <p>November 23, 1869, William and Leopold, as executors,, made petition to the county court for license to sell the real estate, representing that the debts of the estate amounted to $104,000, besides such as were liens on the real estate that the personal property was only of the value of $32,000. License was granted under this petition, and thereafter the sale was had of the whole brewery and premises, excepting-the homestead above described, and the same was bid off' in the name of Jacob Frey, subject to the incumbrances--thereon, for the sum of $379.50. This sale was confirmed by the court May 25, 1870, and a deed of the premises was made by the executors on the same day. It appears as a matter of fact that this sale to Frey was a mere sham, and that Mrs. Melms was the person for whose interest the purchase was made, and Frey took the title merely as a cover. Mrs. Melms immediately made effort to sell both the brewery and the homestead, and on the 1st of November, 1870,. she and Erey made a written agreement with Friedrich Pabst and Emil Schandein, whereby they agreed to sell and convey to them by warranty deed the' entire premises, including the brewery and homestead, for the sum of $95,000. This consideration was to be paid- as follows: $30,000 by paying and discharging an existing mortgage on the property to one Baker; $40,000 by the execution and delivery of a mortgage of that amount on the property by Pabst and Schandein; and the remaining $25,000 by paying and extinguishing two certificates of sheriff’s foreclosure sale of that amount upon the whole property, .upon which certificates deeds would be due in June or July of the following year. This agreement was carried out by Pabst and Schan-dein in all respects according to the contract, except that, instead of redeeming the $15,000 certificate of sheriff’s foreclosure sale, they took an assignment of' it from the holder, and in July, 1871, received a sheriff’s "deed covering the whole brewery and homestead property. Mrs. Melms and Frey had previously given Pabst and Schandein a warranty deed covering the entire property. Pabst and Schandein had conveyed the entire property to the Pabst Brewing-Company prior to the commencement of this action, of which company Pabst and Schandein were officers and principal stockholders. It appears that the Pabst Brewing-Company claims to own the homestead property in fee-under the deed from Mrs. Melms and the sheriff’s deed on foreclosure. " .</p> <p>The prayer of the complaint is thht both the will of said Charles T. Melms, in question, with the said deed from Erey and Mrs. Melms, and the said sheriff’s deed to Pabst and Schandein, so far as the homestead property is concerned,, be adjudged null and void, and that it be decreed that the defendant holds said homestead premises only as tenant for life of Mrs. Melms, subject to the estate in fee in remainder of the plaintiffs therein. The circuit court granted the relief substantially as prayed for in the plaintiffs’ complaint, and from that judgment defendant appealed.</p> <p>They contended, inter alia, that Pabst and Schan-dein entered into the possession under a warranty deed purporting to convey to them the entire title in fee. They unquestionably believed themselves to be purchasers of such a title. They recognized no title to which theirs was subservient. They stood in no conventional relation to any outstanding title. They were under no obligation to protect one. The relations of landlord and tenant, mortgagor and mortgagee, tenancy of particular estates, tenants in common, etc., produce certain disabilities in acquiring outstanding titles. But these disabilities only apply where the party concerned has entered in recognition of the estate by reason of which the disability is imposed. It applies “ generally to all cases where one man obtains possession of real estate belonging to another by a recognition of his title.” Tyler, Ejectment, 811. Where there is neither privity nor convention between them, nor recognition of title, it does not apply. Wright v. Sperry, 21 Wis. 336; Frentz v. Klotsch, 28 id. 312; Sydnor v. Palmer, 29 id. 226, 249, 250; Stevens v. Brooks, 24 id. 326; Whitney v. Morrow, 34 id. 644; Bradst/reet v. Huntington, 5 Pet. 402, 443, 44.4; Prescott v. Fevers, 4 Mason, 326; Jackson v. Smith, 13 Johns. 406; Jackson v. Harsen, 7 Cow. 323; Christie v. Gage, 71 N. T. 189, 193,194. Where one enters under a deed which purports to convey to him the entire estate, although his grantor may have had but a limited interest, his entry and possession are hostile in character, and he is not affected by the disability of the grantor. Jackson v. Smith, 13 Johns. 406, 413, and other cases above cited. It is true that when, in such case, the grantor was possessed of a particular estate, entitling him to possession, the grantee’s possession is not adverse to the remainder-man or reversioner, in the sense that it sets the statute of limitations running during the continuance of the particular estate. Barrett v. Stradl, 73 Wis. 385; "Wiesner v. Zaun, 39 id. 189. That is a necessary exception to the rule. Its reason is obvious. But the exception extends no further than the necessity and its reason. Even where a party’s possession is in no sense adverse he may acquire an outstanding; title as against the true owner, where there is no privity of contract between him and the true owner. Link v. Doerfer, 42 Wis. 391, 395; Blackwood v. Van Vleit, 30 Mich. 118; Jackson v. Thomas, 16 Johns. 293. ■ There is certainly no rule of equity which required Pabst- and Schandein, as against the plaintiffs in this case, to discharge the incum-brances on the property. They had agreed to do this only on the counter-agreement that a full and complete title in fee simple be conveyed to them. It is only as against a party who has an equitable claim for its extinguishment, that a party in possession is ever estopped from setting up an outstanding title he may have bought in.</p>

<p>ArnsAL from a judgment of the circuit court for Milwaukee county: FjgaNK M. Eish, Judge.</p> <p>Tbe plaintiffs, the heirs at law of Charles T. Melms, deceased, brought this action against Leopold Melms and Marie Melms, their mother, surviving executor and executrix of the will of the said deceased; Frederick Pabst; Lisette Schan-dein, executrix of the will of Emil Schandein, deceased; and the Pabst Brewing Company, — to set aside (1) a deed of the Melms Brewery property, exclusive of the homestead, in Milwaukee, of which the testator died seised, dated May 25, 1870, executed by Leopold Melms and William Melms, as executors, and Mamie Melms, as executrix, of said Charles T. Melms, deceased, to Jacob Frey for a recited consideration of $379.50, subject to the condition that the grantee should pay off four certain mortgages thereon; (2) also, a certain deed of the same premises from said Frey and Mamie-Melms to said Pabst and Schandein, dated November 1,1870, for a recited consideration of $95,000, subject, in like manner, to certain mortgages which the grantees were to pay; (3) also, a certain sheriff’s deed of said premises, executed to said Pabst and Schandein, upon a certificate of foreclosure sale thereof, founded on one of said mortgages, and dated July 29, 1871; and (4) a subsequent deed of conveyance of the said premises from Pabst and Schandein to the Phil. Best Brewing Company, — under which said deeds the Pabst Brewing Company claimed title to the premises in dispute,— all upon the ground that said several deeds were fraudulent and in violation of the rights of the plaintiffs as such heirs at law of Charles T. Melms, deceased. The defendants Frederick Pabst and the Pabst Brewing Oortypany insisted upon the validity of said several conveyances, denied the fraud alleged, and insisted, among other things, that, as the action had not been commenced until October 30, 1890, the plaintiffs were barred of relief by reason of laches. The main facts are stated, for the most part, in the preceding case between the same parties in relation to the title to the homestead of the deceased, to which reference is here made. Ante, p. 140. Such additional facts and details essential to the merits are, in substance, as follows:</p> <p>The license of sale, upon which the deed from the executors to Frey was founded, directed the premises to be sold, subject to four mortgages on the whole property, including the homestead, for the payment of $65,000, besides interest and costs, and the right of dower of the widow of said deceased. At the public sale by the executors, one of their attorneys acted as auctioneer, and the premises were struck off to the said Frey, a brother-in-law of Mcvrie Melms, executrix, for the sum of $90,000, subject to said mortgages. It appears that this was done in the expectation that a corporation would be formed, and a large number of the creditors and others were to take stock, and moneys were to be advanced, so as to enable the terms of the sale to be carried out, and Frey was to be manager of the business. The attorney of creditors of the estate to the amount of $80,000 was present at the sale, and he was familiar with the scheme for forming and managing the corporation. This scheme failed, and Frey failed to make good his bid. The sale was not reported to the court, but instead thereof a sale as having been made for only $379.50, subject to the mortgages; and it was confirmed by the court. Marie Melms, the executrix and the mother of the plaintiffs, paid said sum of $379.50, and the executors’ deed was made to Frey, but in fact for her use and benefit. This proceeding, with report of sale and deed, was conducted and the papers prepared by the same attorney for the executors. The final account of the executors was filed and settled, pursuant to notice, and the residue in their hands was ordered distributed September 29,. 1870. In this account they debited themselves with $379.50 for the property in dispute, which this account shows had been appraised at $110,000, exclusive of the homestead.</p> <p>The subsequent sale by Erey and Mrs. Melms to Pabst and Schandein, November 1,1870, was conducted mainly on their part by one of the executors, Leopold, Melms, Mrs. Melms being present and assenting thereto. The homestead was included in the sale with the brewery property, with the dower right of Mrs. Melms, and all wras subject to a mortgage of $30,000 to one Baker, trustee, which the purchasers were to pay; and they executed a mortgage for $40,000 of the purchase money to Leopold Melms, as trustee, to secure coupon bonds issued to him for the benefit of divers persons interested therein, and the remaining $25,000 was agreed to be paid by paying and extinguishing two certificates of .sheriff’s foreclosure sales on mortgages to that amount upon the whole property, and upon which deeds would be due in June or July of the following year. The vendors were to pay all due on said certificates over $25,000, which Mrs. Melms in fact paid. The other mortgage on the premises was to be paid off by the vendors exchanging for the same bonds secured by the $40,000 mortgage, or otherwise, as they might elect. This mortgage was afterwards paid by Mrs. Melms with and out of said bonds. Included in the sale of the real estate was the machinery, apparatus, tools, trucks, hooks, casks, and other personal property appertaining to the business of the brewery or malt house, and then on the premises. The conveyance made by Frey and Mrs. Melms to Pabst and Schandein was subject to incum-brances, in substance, as specified in the agreement, which was carried out by the parties in all respects, except that, instead of redeeming the $15,000 certificate of sheriff’s foreclosure sale, as they had agreed to do, Pabst and Schandein took an assignment of it from the holder February 21,1871, and on July 29, 1871, obtained a sheriff’s deed thereon, covering the property in question as well as the homestead. The purchasers, Pabst and Schandein, selected one of the attorneys who had acted for the executors in the administration of the estate, and who had acted in making the executors’ sale and report, obtaining its confirmation, and in the preparation of the conveyance, under the license of the court, to Frey, to act for them as well in the purchase, preparation of agreement and deed, and examination of title, with the knowledge that he was the attorney for such executors, being assured by one of the latter that such attorney knew all about the business. Accordingly, he acted for both parties, preparing the agreement and other documents, and had ^the abstract of title produced, continued down until that date, and each party paid one half of his charges. It was claimed that, at the time Pabst and Schandein agreed to purchase, Leopold Melms and Mrs. Melms disclosed to them that Frey held the title to the brewery premises for her benefit. She was rightfully entitled to dower therein, and to a life estate in the homestead, which were included in the sale. She testified that she said, in their presence, that Frey would give the property back to her; that he had bid it off for $90,000. Leopold Melms testified that Pabst and Schandein were well informed about the matter. They had seen the attorney of the executors. His version of what took place was that he {Melms) explained to them that the property had been transferred to Frey, who held the title; that he was Frey’s agent, and that she had a dower interest in the homestead — in the brewery; that she had paid interest on the incumbrances so as not to lose her dower right in the brewery. Pabst testified that he had no recollection of any such conversation with Melms or Mrs. Mebns.</p> <p>The terms of the agreement were not complied with until about two months after its date. The deed to the purchasers, and their mortgage to Leopold Melms as trustee, were recorded December 30, 1870. The purchasers, Pabst and Schandein, and the Pabst Brewing Company claiming under them, have been in the actual possession of the property ever since the 1st of November, 1870, claiming title thereto under the aforesaid conveyances, and under a lease thereof executed November 1, 1870, which was vacated by compliance with the terms of the agreement of sale, December 30, 1870. The entire consideration of the sale to Pabst and Schandein, over and above the $65,000 stipulated to be paid on incumbrances by the vendees, was received by Mrs. Melms. One of the executors, Leopold Melms, acted for her during the entire period of the administration, she not being familiar with business and not speaking the English language readily. He was her banker during this period, and kept an account of all his receipts and disbursements, consisting entirely of money which was received from the estate of her husband, for allowances by statute, proceeds of certain sales of her dower interest in other real estate, and insurance on her husband’s life and not a part of his estate, with $30,000 in bonds received on the sale of the brewery and homestead premises; but she had advanced considerable sums on the sale of the brewery premises, to reduce the incumbrances to $65,000, and had more than used up the entire proceeds of the life insurance policies. He delivered to her, about April 15, 1871, an account in detail of all receipts and disbursements of her money, in which he gave her credit for having received on the sale of the brewery, “sold at $95,000, less mortgages, $65,000 — $30,000,”— and debited her, under date of May 25,1870, with “ Cost of brewery, $379.50; ” showing a balance in ber favor of $26,578.43. She testified that she showed this account to her children, the plaintiffs, and that she believed that they had all seen it when they were at home, and wanted to see it more or less frequently; that it was in the house where they could see it; that some of them were not at home, but those at home saw it; that she thought they all saw it; and that she did not keep anything secret from her children,— though she subsequently materially qualified these statements. She said it was kept in a secretary in her house, and that she gave it, about ten years before the trial, to her son-in-law, Mr. Bechtel, husband of her daughter, Elise Melms; that she showed the account to the defendant Pabst in 1871, and he read the account over and did not say whether it was right or wrong or give her any satisfaction; that when she received the bonds and the account Leopold Melms was angry because she wanted them, and they had not been on good terms since.</p> <p>The evidence shows that the estate of Charles T. Melms, at the time of his death and the transfers in question, was hopelessly insolvent; that the creditors, who had proved their claims to the amount of over $100,000, received only about twelve per cent, thereon, after applying all the proceeds of other property exclusive of that in dispute. While there is no satisfactory evidence, aside from its appraisal, showing what the brewery property was really worth, it is entirely clear that it could not have been sold for sufficient to have paid the claims of creditors, but that there would have been, beyond doubt, a large deficiency of assets.</p> <p>At the time this action was commenced, the ages of the plaintiffs were as follows: Franz Melms, forty years; 'Oarl J., thirty-nine; Johanna, thirty-four; Elise, thirty-two; Richard, thirty-one; Gustave J., twenty-eight; and LJertha, twenty-five. In May and June, 1881, they executed powers of attorney to the said Bechtel, who then resided at Milwaukee, authorizing him to take such steps as he might deem necessary to secure any right or interest they or either of them had or might have in or to the real or personal estate of their deceased father, and to institute actions for the purpose of recovering and securing such interest, authorizing him, in making his investigations, to employ attorneys and, if he should consider it best, to settle and adjust, with or without litigation, any such interest with any person or persons who might have or hold the same, and to that end to execute and deliver deeds, acquittances, etc., and to receive and receipt for any money, property, or estate which might be recovered or obtained or paid in the premises. In 1881, Leopold Melms delivered a copy of the account which he had rendered to Mrs. Melms, with the checks and papers which he had relating to that subject, to said Bechtel, at the request of Mr. Goodwin, an attorney, of the firm of Goodwin & Benedict, who were the attorneys for the Melms heirs, and who instituted a suit for the recovery of some property sold by the executors, as well as the check for $379.50, which had written across its face, “ Check to the account of Marie Mebm.s''’ and had been given for the consideration named in the executors’ deed to Erey. About this time he also wrote to the plaintiff Garni J. Melms, at New York, that he had grounds for a test case, and asked him to come to Milwaukee. It appears that Mr. Miller, who was connected with Goodwin & Benedict, after keeping these papers for a long time, delivered them to Leopold Melms October 1, 1890, ■about the time of the commencement of the present action. They embraced the original inventory of the estate and the Schandein and Pabst agreement, and he testified that he had made a pretty full examination of the Melms estate, going •through all the papers in the probate court, looking up the record and conveyances, and conferred somewhat with Leopold Melms about it; that the interest of the heirs in the •estate was put in his hands in 1881, and a suit against one Blister for the recovery of some of the property sold was commenced in June, 1882, and, after the determination of the suit, the papers had remained in his hands until he had so returned them.</p> <p>' After the conveyance to Pabst and Schandein, they and the brewing company made very considerable improvements-on the premises, building thereon a bottling house, elevator, coal sheds, ice houses, cleansing room, etc., and seem to have operated the brewery continuously thereafter, and in the1 meantime the value of the property had very greatly increased.</p> <p>William Melms, one of the executors, Prey, the grantee in the executors’ deed, and Schandein died before the action was commenced.</p> <p>The money thus received by Mrs. Melms from the sale of the brewery and her homestead right was used, to a very great extent, in maintaining herself and children, and ini their'education, and was the only resource she had for that, purpose. The only explanation of the long delay of the plaintiffs in asserting their rights was “ that until within a few months before the action they were all in entire ignorance-of the character and record of the conveyances under which Pabst and Schandein and their grantee were in possession of the said premises, and of all the proceedings before the-county court, and of the facts set out attending the administration and of said sales; ” but they do not state how, or more definitely when, they made any discovery of fraud or improper conduct therein, nor is there anything on this subject in the evidence, save that an attempt was made to-show, by Leopold Melms, that in September, 1890, he learned that, under the statute, a sale made either directly or indirectly to an executor or executrix, or for the benefit of such, was void; that he then consulted counsel, and notified the heirs, and the action was commenced; but the court excluded the evidence.</p> <p>The court found, among other things, that Pabst and Schandein were purchasers, bona fide and for a valuable consideration, of the premises, and entered into possession under and by virtue of the deeds executed to them immediately after the dates of the same, and that they and their grantees had so continued up to the commencement of the action; and held that the plaintiffs were not entitled to any relief, and gave judgment dismissing the complaint with costs, from which the plaintiffs appealed.</p>

<p> Malicious prosecution: Instructions to jury: Probable cause: Good faith: Court and jury: Excessive damages: Appeal. </p> <p>1. In an action for malicious prosecution brought by the cashier of a corporation who had been arrested on a charge of embezzling moneys, including a certain $25 which he had paid to the president, a statement in the charge to the jury that “ the question in the trial as to that $25 would be whether it was paid over with fraudulent intent on the part of the plaintiff in this action,” is held not to have been erroneous, it appearing that the jury must have understood from the context, as the fact was, that the judge was speaking of the issue in the embezzlement case.</p> <p>.2. In an action for malicious prosecution an instruction that to justify causing the arrest of an innocent man “the facts must be such as would justify an ordinarily intelligent and reasonably prudent person in entertaining ” a belief that he was guilty, was not erroneous.</p> <p>■8. Although the defendants in an action for malicious prosecution had fully stated all the facts to their attorney and had acted in accordance with his advice in causing plaintiff’s arrest, yet the question whether they acted honestly and in good faith, without ulterior motive, is one for the jury where, from the whole evidence, persons of different minds might reasonably draw different inferences in respect to that question.</p> <p>•4. In an action for malicious prosecution it appeared that plaintiff, who was arrested on a charge of embezzlement, was in custody only about one hour and was not in actual confinement at all; that he was released upon depositing a small sum and promising to appear in court; that on such appearance no examination was had, and no particular objection made by defendants to his discharge; that there were no special circumstances of aggravation; and that his expenses in the matter were $50. Held, that damages assessed at $3,500 were grossly excessive and should be reduced, by remission, to $1,000 or a new trial granted.</p> <p>■5. A motion to set aside a verdict on the ground that it was the result of passion and prejudice is sufficient to raise the question whether the damages are so excessive as to warrant a reversal of the judgment on that ground.</p>

<p>Appeal from a judgment of the superior court of Douglas county: E. B. Bundy, Judge.</p> <p>They contended, inter alia, that the lease, attempting as it does to fix a term of years, is void under sec. 2304, S. & B. Ann. Stats. It does not provide when or in what manner the demised room is to be completed, nor in fact that the lessor will ever complete it. This part of the contract is so vague, indefinite, and uncertain as to what the parties really intended, as to when, if ever, the room should be completed, and as to how it was to be completed, that it must be aided in this respect by verbal testimony; so it could not be enforced at all. Wright v. Weeks, 25 N. Y. 154; Davis v. Shields, 26 Wend. 341; AJ>eel v. Badcliff’ 13 Johns. 297; Omwpbell v. Thomas, 42 Wis.-437; Pop]) v. Swanke, 68 id. 364; Thomas v. Sowar ds, 25 id. 631; Garnlt v. Stormont, 51 Mich. 636; Ball v. Soule, 11 id. 494; McEVroy v. Buck, 35 id. 434. If there is nothing appearing in the instrument itself from which an uncertainty therein can be made certain, it is void for uncertaint3r. Johnson n. Ashland L. Oo. 52 Wis. 465. It is the very essence of a term of years to be fixed and determined; and, therefore, unless some certain beginning or event is referred to by which the period of its commencement may be ascertained, it will be void for uncertainty. 1 Taylor, Landl. & T. § 70 1 Preston, Estates, 201; Bac. Abr. Leases (L), 3; 1 Washb. Real Prop. 294; Murray v. Oherrington, 99 Mass. 229; Western Transp. Go. v. Lansing, 49 N. Y. 499, 508.</p>

<p> Vacating judgment: Court commissioner: Discretion: Review: Lachesr Authority of attorneys to stipulate for judgment: Sufficiency of showing for relief. </p> <p>1. An order of a court commissioner granting relief from a judgment,. under sec. 3832, R. S., is subject to review by the court, and the order of the court when made stands as its proper exercise of discretion upon the merits of the application, and will not be disturbed except for an abuse of such discretion.</p> <p>2. A defendant in an action commenced in June, 1893, after being advised by his attorneys, who appeared for him, that he had no defense, and without putting in any answer, went to another state for his health, and gave the case no further attention except to write one letter to his attorneys stating a supposed defense which, upon investigation, they did not deem available. He returned in April, 1894, but did not inquire what had become of the action until the following July, when he learned that judgment had been rendered against him in February. In November, 1894, he applied to have the judgment set aside and for leave to defend. Nothing beyond his ill health was shown to excuse his neglect, and it did not appear that he was incapable of giving proper attention to his defense. Held, that he had been guilty of such laches as to bar his claim for relief.</p> <p>3. "Whether defendant’s attorneys had authority in such case to stipulate for the entry of the judgment need not be determined, the only effect of their stipulation having been to postpone such entry.</p> <p>4. An application under sec. 2833, R. S., by a defendant who failed to answer, to be relieved from a judgment against him and allowed to defend should be based upon an answer verified upon his own-personal knowledge, or upon the affidavit of some one having personal knowledge of the facts, a showing upon information and belief not being sufficient; and the practice in this respect is the same in legal and in equitable actions.</p>

<p>Appeal from an order of the superior court of Douglas county: Charles Smith, Judge.</p> <p>On the 19th day of May, 1894, plaintiff, for itself and on behalf of all the taxpayers of the city of Superior, commenced this action against such city and the mayor and the members of the common council thereof, to prevent the payment of salaries to such mayor and members, which involved the validity of certain proceedings of such council whereby an attempt had been made to so amend the charter of such city as to allow salaries to its mayor and aldermen. W. E. Hoehle appeared for all the defendants. All of the aider-men were made defendants, but neither summons nor complaint was served upon any of them. Prior to the commencement of this action an action had been commenced against such city and certain officers thereof, involving similar questions, and such proceedings were had, while both actions were pending, that a written stipulation was entered into by "W. E. Hoehle, as 'attorney for defendants, and by Victor Linley, as attorney for plaintiff, to the effect that, in case judgment should be entered in both cases, the successful party in the second case should recover the same amount of costs as taxed and allowed to the successful party in the first case. All the defendants, by Hoehle as their attorney, answered the complaint. Such proceedings were thereafter had that judgment was rendered in both actions in favor of the plaintiff. The costs were taxed in the first action at the sum of $400.34, and, pursuant to the aforesaid stipulation, judgment for the recovery of a like sum for costs was entered against all the defendants in this case. After the entry of such judgment the city attorney, W. E. Hoehle, was directed by the common council of the city to appeal therefrom to the supreme court. Pursuant thereto a notice of appeal on behalf of all the defendants was served, but thereafter, by order of the council, the appeal was discontinued.</p> <p>Several months thereafter appellants appeared, by Messrs. Knowles, Dickinson, Buchanan, Graham & Wilson, and obtained an order to show cause why the judgment against them should not be set aside; said motion being based upon affidavits to the effect that neither the summons nor complaint in the action was served upon them, or either of them, and that the city attorney, W. E. Hoehle, was neither employed by, nor had any authority to appear in the case for, them, or to stipulate as to the amount of costs recoverable; also, to the effect that plaintiff’s attorney commenced and carried on the litigation under a champertous agreement with plaintiff. On the coming on of the order to show cause the matter was referred to Hon. D. E. Roberts to determine the facts, and such proceedings were had that such referee found and reported, among other things, that there was an implied agreement between plaintiff’s attorney and plaintiff that the latter should be preserved harmless from all costs and expenses of the litigation; that such attorney should cither pay or cause the same to be paid, and should have any judgment for costs that might be recovered. The referee also found that W. E. Hoehle and W. 0. Owen, attorneys, defended the action in behalf of the defendants, that appellants’ rights were affected by such action, and that they had knowledge, before judgment, of the facts in respect to the prosecution and defense.</p> <p>After the coming in of such report the appellants, by their attorneys, moved the court to set aside the judgment for the following reasons: (1) That the action was prosecuted under a champertous agreement; (2) that no affirmative relief was asked in the complaint against appellants; (3) that no summons, complaint, process, or notice of any kind was served on appellants; (4) that no one, on behalf of appellants, authorized the making of any stipulation allowing judgment for costs to be taxed against them; (5) that the judgment was, as against the appellants, illegal, unjust, and void; (6) that the judgment for costs was excessive. The motion was denied, and from the. order denying the same this appeal was taken.</p> <p>they cited Barker v. Barker, 14 Wis. 181, 142; Allard v. Lamirande, 29 id. 602; Andrews v. Thayer, 30 id. 233; Laney v. Uaven-der, 146 Mass. 615; Kelly v. Kelly, 86 Wis. 170.</p> <p>argued, among other things, that any interest in the litigation, however contingent or remote, excludes the rule of champerty and maintenance. Williams v. Fowle, 132 Mass. 385, 389; Lathrop v. Amherst Bank, 9 Met. 489; Thallhimer v. Brinckerhoff, 3 Cow. 623; Gilleland v. Failing, 5 Denio,'308; Wickham v. Gonklin, 8 Johns. 220; Thompson v. Marshall, 36 Ala. 504, 76 Am. Dec. 328; 3 Am. & Eng. Ency. of Law, 76; Story, Eq. Jur. § 1048a/ Kell/y v. Kelly, 86 Wis. 170. This exception to the rule of champerty and maintenance is impliedly referred to in Barker v. Barker, 14 Wis. 144, and in Martin v.' Feeder, 20 id. 466. The agreement found by the referee to exist between the plaintiff and its attorney is not cham-pertous in any event. The agreement rested in parol, and the referee found there was no express agreement, but it consisted principally of an understanding from conduct and words, and this does not even appear to have definite shape in the report of the referee. Foster v. Jack, 4 Watts,'339; Jewel v. Keidy, 61 Iow.a, 299; Allard v. Lamirande, 29 Wis. 508.</p>

<p>Appeal from a judgment of the superior court of Douglas county: Charles Smith, Judge.</p> <p>On the 3d day of March, 1892, the appellant issued to the-West Superior Iron & Steel Company its policy of insurance, the essential parts of which are as follows:</p> <p>“Whereas, the West Superior Iron and Steel Company of West Superior, Wisconsin, hereinafter called the employer, by application dated the 1st of March, 1892, the statements, in which the employer warrants to be true and agrees shall be incorporated herein, has applied to the Employers’ liability Assurcmoe Corporation . . . for indemnity against claims for compensation for personal injuries caused to employees while in its service at the place or places mentioned in the schedule hereto attached, and has paid to the corporation the sum of one thousand forty-four dollars as premium for such indemnity for twelve months from the 1st day of March, 1892, at noon, which premium is based on the estimated yearly pay roll of the employer, amounting to four hundred thousand dollars.</p> <p>“Now, it is agreed as follows: That the corporation, in .so far as regards injuries caused during the period covered by the premium now paid, or by any renewal premium, will pay to the employer ... all such sums for which the employer shall become liable to his employees by virtue of the common law or of any statute, subject to the following limitations: ... In the event of an accident which shall ■be the cause of the death of or injury to an employee the corporation shall not be liable for more than $1,500. . . . The sums paid to the employer shall be for personal injury within the meaning of this policy caused to any employee in its service while engaged in the employer’s work in any of the occupations or at any of the places mentioned in the schedule hereto, such payment to be made within one week after the receipt by the corporation of satisfactory proofs of the claim; provided, always, that this policy is subject to the conditions . . . indorsed hereon.”</p> <p>The conditions indorsed provided, among other things, that in case of an accident causing personal injury to an ■employee, and an anticipated claim for damages, the assured should give immediate notice thereof to the company, and furnish such additional information as it might require, and •that it should have the right to settle such claim or defend the same in the name of the employer.</p> <p>The schedule referred to is as follows: Under the heading M Description of the Occupation of Employees ” occurs the following: “ All operations connected with the business of iron and steel works.” Under the heading “Wages Paid to Employees in the Occupation ” occurs the following: “ Eour hundred thousand dollars.” Under the heading “ Places at Which Employees to Whom Wages are Paid are Employed ” •occurs the following: “ West Superior and elsewhere in Wisconsin in the service of the employer.”</p> <p>The plaintiff, during the life of the policy, was one of the regular employees of the assured at said iron and steel works, and during such time, and on the 24th day of August, 1892, he réceived a personal injury. Notice, according to the terms of the policy, was given to the appellant., Plaintiff commenced suit against the employer to recover compensation for his injuries. Notice thereof was given to the appellant. It refused to take any action in the matter, upon the ground that “the operations being carried on at the time complained of, and by which plaintiff ivas injured, were not covered by the contract of insurance,” namely, the erection of a building. Such proceedings were had in the action that plaintiff recovered judgment against the employer for $1,400 damages and $51.95 costs. Thereafter such proceedings were had that appellant was summoned as garnishee of the judgment debtor by reason of its liability on the policy.</p> <p>Issue was joined in the garnishee action, and was tried, with the result that findings of fact were filed in accordance with the foregoing statement, and to the effect that at the time plaintiff was injured he was engaged in the manufacturing department; that the employer was building an addition to its works; that a crew other than the one plaintiff was connected with in the service of the employer was constructing the building; that while such crew was raising one of the girders it fell, striking against the shears at which plaintiff was- at work, and, rebounding, struck and injured him; that the conditions of the policy to be performed by the employer subsequent to the accident in order to fix the liability of tbe assurer were complied with. The court construed the policy as a contract to indemnify against liability, and upon such construction, and the foregoing facts and others not necessary to mention, found the appellant liable-as garnishee, and ordered judgment accordingly. Appropriate exceptions were made to present the questions here considered. Judgment was entered in accordance with the findings, from which this appeal was taken.</p> <p>They contended, inter alia, that the policy of insurance here in question is a contract of indemnity against damage, and the steel company can have no claim thereunder except upon proof of damage sustained. An insurance contract is, in its essence, a contract of indemnity against loss or damage. Indeed, the agreement for insurance can be sustained as a valid agreement only by keeping clear the essential quality of the contract as one of indemnity. When the contract steps beyond indemnity it becomes obnoxious to the rules of public policy against wagering. 1 May, Ins. (3d ed.), §§ 1, 2; Meredith’s Emerigon, Ins. (ed. 1850), sec. 4, p. 13; Cas-tellain v. Preston, 11 Q. B. Div. 380, 386. If the policy here in question was simply a policy of indemnity against liability, immediately upon the happening of an injury to an employee, at the place and in the work designated, the employer, if liable for the injury, has a cause of action against the insurer. He is not required to wait until the employee sues him or until a judgment is obtained against him in the employee’s suit. Such a construction would give ample opportunity, not only for collusion between the employer and the employee, but also for the making of an actual profit by the employer without such collusion. The employer’s liability is not only unliquidated, but proverbially uncertain, and a contract of indemnity against such liability is of necessity a chancing engagement — a wagering contract under which the employer will generally receive not his exact loss, but either more or less than his exact loss. Such construction is opposed, not only to our sense of justice, but also to the practical principles upon which damages are measured. It permits a full recovery before the means of measuring the actual damage have arisen, and without regard to the actual damage. As to the difficulty which courts have had when they have wandered from the principle that a breach of the contract and damage arising from such breach must concur in order to maintain an action for damages, see Valentine <v. Wheeler, 122 Mass. 566. Such a construction should be adopted that the indemnity shall be commensurate with the damage. Phillips, Ins. (5th ed.),.6. The word “claim,” as regards the employer and the insurer, means a liability of the employer, under the terms of the policy, which he has paid, either under judgment or by consent of the insurer; and the “ satisfactory proofs of claim ” must necessarily show an authorized payment of such claim. Traders’ Ins. Go. v. Race, 142 Ill. 338. See, also, Taylor v. Goon, 79 Wis. 76; Thompson v. Taylor, 30 id. 68. The Hoven accident was not within the terms of the policy. People's Ice Go. v. Employers' L. Ass. Gorp. 161 Mass. 122; Phillipsburg Horse Gar Go. v. Fidelity & G. Go. 160 Pa. St. 350. The alleged indebtedness from the garnishee to the defendant had not become absolutely due before judgment was entered against the defendant. At best it could become fixed and absolute •only as a consequence of the entry of the judgment; and being a consequence of that judgment it cannot have been fixed and absolutely due before that judgment was entered. Sec. 2769, R. S., therefore, prevents absolutely any recovery against the garnishee in this proceeding. St. Joseph Mfg. Go. v. Miller, 69 Wis. 389.</p> <p>argued, among other things, that under the policy in question it was not necessary for the defendant to pay the plaintiff’s claim as a condition to its right of recovery. The contract on the part of the garnishee was one against liability, and it was liable without any proof of damage. Selleelc v. Gris-wold, 57 Wis. 291; 10 Am. & Eng. Ency. of Law, 415, and cases cited; Anolca L. Go. v. Fidelity c& O. Go. 65 N. W. Rep. 353; Gilbert v. Wiman, 1 N. T. 550; Trinity Ghtvrch v. Higgins, 48 id. 536; Conner v. Reeves, 103 id. 527; Gasman v. Noble, 9 Pa. St. 366; Fish v. Rema, 10 Mass. 46; In re Negus, 7 Wend. 499; Kirlcsey v. Friend, 48 Ala. 276; Oonlcey v. Hoplcins, 17 Johns. 113; Jarvis v. Sewall, 40 Barb. 449; Banfield v. Maries, 56 Cal. 185; Martin v. Bolenbaugh,. 42 Ohio St. 508; Roelcfeller v. Donnelly., 8 Cow. 623, 628; Ghacev. Hinman, 8 Wend. 452; Marm v. Fchford’s Eedrs, 15 id. 502. The claim owing the defendant by the garnishee was subject to garnishment. All that was decided in St. Joseph Mfg. Co. v. Miller, 69 Wis. 389, is that an unliqui-dated claim for damages arising out of a tort is not garnish-able before judgment. If the original judgment in that case had not been reversed, then the question in the case at bar would have been presented there, and the decision on such question it is evident would have been different. See Murray v. Bxiell, 76 Wis. 661. If in the case at bar the garnishee process had been served on.the insurance company after verdict and before judgment, the facts in this case would have been the same as in Jones v. St. Onge, 67 Wis. 520. The fact that the garnishee process was served after judgment does not make the claim any the less subject to garnishment. The appellant was garnished in aid of execution. The construction of the statute contended for by appellant would prevent the garnishment in such cases of all debts owing the defendant which were contracted or arose after judgment in the main action. The word “ defendant ” where it occurs the second time in subd. 4, sec. 2769, evidently means “ garnishee defendant,” the object of the statute being not to allow a judgment against him upon an indebtedness which had not “become due absolutely and without depending on any future contingency.”</p>

D. Maeshall, Circuit Judge. The amended complaint alleges, in substance, that the ■ plaintiff is the owner of the N. E. \ of section 35, township 28 N., of range No. 5 W., in Chippewa county, Wisconsin, and was in the possession thereof until the same was taken possession of by the appellants. Ten or fifteen acres of the land is meadow land, and the balance covered with timber, alleged altogether to be worth $4,500.

<p> Contracts: Construction: Premature action. </p> <p>Under a contract by which the hauling of ties was to be paid for by defendant “ within five days after notice has been received by ”■ him “ that all ties have been delivered, and after same have been counted by” him, “and known to be delivered as claimed,” an action commenced four days after the ties were counted is held to-have been prematurely brought, although, several days before the counting, plaintiff had notified defendant that the ties were all hauled and asked him to come and count them, where such notice did not state the number nor what the plaintiff claimed respecting them.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: R. D. Maesiiall, Circuit Judge.</p> <p>This was an action upon a subscription. The facts are simple and not greatly in dispute. It appears that in October, 1891, the Daisy Roller Mill Company, a corporation-contemplated building a large flouring mill, of certain capacity and dimensions, at Superior, and required, as a bonus for that purpose, a site and $50,000 in money. A subscription paper was circulated for the purpose of meeting this proposition, and the Superior Consolidated Land Company subscribed $25,000 in cash and a suitable site, which was, by the terms of the subscription paper, to be on “ the Superior Bay front, between Kingston pier and Nemadji river.” Many other subscriptions were made, of various amounts. Before the completion of the subscription, and in the latter part of October, 1891, James Bardon, president of the Consolidated Land Com/pamy, called on the defendant at his home in Boston, Massachusetts, and told him of the proposition of the mill company, and the condition of the sub•scription, and the efforts being made to accept the proposition. Mr. Bickford owned a warehouse and two lots on ■Quebec pier, which is a pier on the Superior Bay front, between Kingston pier and the Nemadji river. It does not appear that Mr. Bardon had the subscription paper with him, or that Bickford ever saw it. There was considerable talk about the matter, but no subscription was then made; and the parties separated, with the understanding that Bickford would communicate with Bardon later, after making some inquiries at Superior. Bickford claims in his evidence that Bardon agreed that if Bickford subscribed $1,000 the mill company would rent his (Bickford^) warehouse at $600 per year; but this is denied by Bardon, and negatived by the finding of the court.</p> <p>On November 16,1891, the defendant wrote and sent to Bardon the following telegram: “ If the mill is built on Quebec pier I will give one thousand dollars, but cannot take any stock at present. 1ra H. BicKfoed.” November 19, 1891, Bardon acknowledged receipt of the telegram, as follows: “Your telegram saying that you would pay $1,000 towards the bonus if the flouring mill was located on Quebec pier, but could subscribe no stock, was duly received.” Bardon attached the telegram to the subscription list, which was afterwards completely filled to the required amount; the Consolidated Land Company guarantying all the subscriptions. The mill was built immediately upon Quebec pier, and was finished some time in 1892, which is conceded to be a reasonable time, and it conformed in all respects to the proposition made. Bickford's subscription and some others not being paid, the Consolidated Land Company paid the amounts to the Daisy Roller Hill Company, and took an assignment of the various subscriptions, and now brings this action as owner of the cause of action by virtue of such assignment.</p> <p>The case was tried by the court, without jury; and, upon findings substantially as above stated, judgment was rendered for the plaintiff, and the defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: R. D. Mabshall, Circuit Judge.</p> <p>This action was brought by the plaintiff, L. M. Johnson, an infant, by T. 0. Johnson, her guardian ad litem, to recover upon a policy of insurance issued to her by the defendant company, for the value of certain of her personal property covered by it, alleged to have been totally destroyed by fire at Superior, Wisconsin. The defense was that the said T. C. Johnson applied to the defendant’s agent for a policy, and represented that he was the owner and in possession of the property in question and that his name was L. M. Johnson, and relying upon such representations the defendant issued the policy; that it was executed and delivered to T. C. Johnson under the name of L. M. Johnson, under the supposition and belief that he owned the property and that his name was L. M. Johnson; and that until after the loss the defendant had no knowledge that there was any infant, or any other person than T. 0. Johnson, interested in, or who had any title to, said property. The defendant insisted that the policy was void for such misrepresentations, and, in particular, that it was a rule binding upon all agents that it would not insure the property of infants, and by reason of the fact that said T. C. Johnson, having so represented himself as L. M. Johnson, had fraudulently concealed and misrepresented the facts in that behalf material to the risk, and for that the person so represented to be L. M. Johnson had no insurable interest in the property. It was alleged that the plaintiff delivered to the defendant a false and fraudulent account of the alleged loss and damage, with the intent to defraud.</p> <p>At the trial it appeared that the plaintiff, an infant nineteen years of age, was engaged in manufacturing portraits at Vest Superior, and had on hand material and stock, portraits, easels, etc., and T. 0. Johnson was her agent in looking after the business; that she authorized him to procure the policy on the stock; and that the loss occurred by fire; and the amount of the same was shown. The business was to solicit orders for portraits, take photographs, and enlarge them. T. C. Johnson had no interest in it, but the plaintiff left the active management of it to him, and he had authority to represent her. She had no conversation with the agent about issuing the policy. T. 0. Johnson testified to procuring the policy from Prindle & Clague, the agents, and that he talked with Mr. Prindle about it, and discussed and decided on the manner and terms, and, when he started to leave their office, Prindle said, “ Hold on; you have not told me whose name to place this in,” and he answered, “ You may place it in L. M. Johnson)s,” and he replied, “Yery well; I will make it out, and bring it down for you;” that he brought it accordingly; that he did not tell him who L. M. Johnson was, and did not say anything to him about that, or defendant to him (Johnson), and that he did not say anything to let him understand his name was not L, M. Johnson — did not tell him what his name was. It was admitted that proofs of loss had been furnished. The defendant moved for a nonsuit, which was denied.</p> <p>On the part of the defendant it appeared that the ad-jus ter of tbe company, after learning the plaintiff was a minor, and her name, and the manner in which the policy had been negotiated and issued, denied liability on the part of the company. And the evidence of the agent who issued the policy was produced, which was to the effect that he issued the policy to L. If. Johnson, a man about thirty-five years of age; that he did not represent to him that his name was not L. M. Johnson, and that he represented to him that he owned the property insured; that he did not know such a person as T. C. Johnson, and, if he had known L. M. Johnson was a female under the age of twenty-one years, he would not have issued the policy. There was no written application for the policy, and no copy of any application or representations of the assured affecting the validity of it had been attached to or indorsed on the policy pursuant to S. & B. Ann. Stats, sec. 1945a. Proof was given showing that it was a rule of the company not to insure minors, and that agents were instructed accordingly; but it was shown that T. C. Johnson, who procured the policy, had no notice of these facts.</p> <p>At the close of the evidence the defendant again moved for a nonsuit, which was denied. The case was submitted to the jury under the instructions of the court, and the jury returned a verdict for the plaintiff for $884.13. The defendant moved for a new trial on the ground that the verdict was against the evidence, but the motion was denied, and the plaintiff had judgment, from which the defendant appealed.</p>

<p>Orders: Recitals: Pt'esumption: Condemnation of land: Conflicting claims to award.. ,</p> <p>1. It will be assumed that an order reciting the facts found is in compliance with Circuit Court Rule XI, sec. 6 (requiring reference to all the papers, etc., used by either party on the application), and hence that it is based entirely upon the facts so recited.</p> <p>2. The recitals of an order made in condemnation proceedings, which fail to state by whom such proceedings were instituted; when the person or corporation which obtained the easement by virtue, thereof entered and took possession of the lands condemned; whether such entry was wrongful or with the express or tacit consent of the then owners; or who such owners were at that time, — are held insufficient for a determination as to which of several claimants is entitled to the compensation.</p> <p>[3. Whether conflicting claims to the compensation which may or may not be recovered subsequently in condemnation proceedings can be determined in advance of such recovery, under sec. 1850, " R. S., not decided.]</p>

D. Maeshall, Circuit Judge. This action is to recover the value of a quantity of lumber alleged to have been converted by the defendants’ testator. The action ivas tried by the court without a jury, and at the conclusion of the trial the following findings of fact were made, all of which are sustained by the evidence: “First.

Appeals from a judgment of the circuit court for Douglas ^county: R. D. Maeshall, Circuit Judge.' A judgment having been rendered in favor of the plaintiff, •the Bank of Commerce, against W. E. Moran, Louis G. Moran, •and George Taylor, for $2,214.40, and execution having been issued thereon, a garnishee action was commenced in which Homer T. Fowler and the Northwestern National Bank were summoned as garnishees of said W. E. Moran, on the ground •that they were indebted to…

Bennett, Circuit Judge. Action to recover for personal injuries alleged to have been received by plaintiff by reason of a defective sidewalk in the defendant city. The facts are sufficiently stated in the opinion.

Bennett, Circuit Judge. Garnishment. The plaintiff Loeb and others were creditors of one Allen, who was operating an hotel at Janesville up to the 28th day of February, 1894. On the 1st of March,. 1894, the plaintiffs sued Allen in justice’s court, and garnished O'Brien.

Bennett, Circuit Judge. This was an action for the conversion of 18,679 feet of lumber sold and consigned by the plaintiff to the J. B. Dixon Lumber Company, of Boston, in December, 1890, and which arrived in Boston over the road of the defendant company, and was placed in its warehouse for delivery to the consignee.

<p> Advancements: JEvidence: Construction of statutes. </p> <p>1. Under seo. 3959, R. S. (providing that “all gifts and grants shall be deemed to have been made in_advancement, if they are expressed in the gift or grant to he so made, or if charged in writing by the intestate as an advancement, or acknowledged in writing as such by the child or other descendant ”), parol evidence is inadmissible to prove an advancement, all other evidence than that prescribed being excluded by implication.</p> <p>2. Where a statute adopted from another state had previously received an interpretation by the courts of that state, it should have the same interpretation here.</p>

<p>Malicious trespass: Tearing down building on land of another: Title: Evidence: Pleading: “ Wantonly ” defined.</p> <p>1. In a prosecution under sec. 4441, E. S., for wilfully, maliciously, or wantonly tearing down a building, the state must both allege and prove that the building was “ standing or being upon the land of another ” person than the defendant or the person under whom he seeks to justify the act; and hence evidence that the legal title ' was in such other person is admissible.</p> <p>3. Although a complaint under said seo. 4441, E. S., alleges that defendant wilfully, maliciously, and wantonly tore down a building-on the land of another, he may be convicted if he did so either wilfully, maliciously, or wantonly.</p> <p>3. The word “wantonly,” as used in said sec. 4441, R. S., means in reckless disregard of the lawful rights of the owner of the property injured or destroyed — heedless of the necessary results of the act complained of.</p> <p>4. The question being whether one who had torn down a building honestly believed and had good reason to believe that his father was the owner and in possession of the land on which such building stood, evidence that his sister had accepted a mortgage of said land from their father was irrelevant.</p> <p>■5. A witness who had heard a railroad official trying to make some arrangement with defendant’s father for passage over the land was properly precluded from testifying as to what position she had been told such official held.</p>

<p> ■Perjury: Materiality of false statements: Evidence: Waiver of objection: Hearsay: Instructions to jury: Pleading: Election. </p> <p>•1. It being material on a murder trial whether or not P., one of the defendants, left the city on the night of the murder soon after the firing of shots, wilfully false testimony of a witness in denial of a statement, previously made by him to the prosecuting attorney, to the effect that he was in the city that night and heard shots ■fired and shortly afterwards drove out of town with said P. in a , ‘buggy, was perjury; and so also was his circumstantial account ■of what he was doing in another place during the time in question, given falsely on his cross-examination to lend a greater air of truth and probability to such denial.</p> <p>'2. The admission of testimony cannot be alleged as error by the defense where it was elicited by them on cross-examination of a witness for the state and they did not move to strike it out.</p> <p>• 3. On the trial of one H. for perjury alleged to have been committed in a murder case, the prosecuting attorney was a witness for the state, and the defense elicited from him, on cross-examination, testimony to the effect that he had heard a rumor of possible tampering with H,, as a witness in the murder case, by S., one of the .attorneys for the defense in that case. Afterwards the court refused to permit S. to testify that he had never said anything to H. about his receiving money for testifying or not testifying in the murder case, stating in effect that there was absolutely no proof of any such thing in the case. Held, that such exclusion of the -testimony of S. was not error; nor was it error, in view of the statement then made, to neglect to say to the jury in the general charge that there was no evidence tending to show any corrupt-purchase of H.’s testimony.</p> <p>4. It was not error on a trial for perjury to refuse to compel the state to elect upon which separate statement or statements of the defendant it would ask for a conviction, where those statements were such that any separation of them was practicably impossible, and they were either all true or all wilfully false.</p>

<p>•{1.2) Appeal: Practice: Judgment in accordance with mandate on former appeal: Res ad judicata. (3) Riparian rights. (4) Rehearing: Jurisdiction.</p> <p>1. Where this court, on reversing a judgment, remands the cause “ with direction to enter judgment in accordance with the opinion,” and that opinion leaves nothing undetermined, the trial court should merely enter the judgment as directed, and should not allow any amendment to the pleadings or new litigation in the case.</p> <p>3. An appeal from a judgment entered in substantial accordance with the mandate of this court on a former appeal will be dismissed.</p> <p>3. The right of the Green Bay & Mississippi Canal Company to draw water through the canal at Kaukauna as riparian proprietor was considered on the former appeal in this case (Green Bay & M. C. Co. v. Kaukauna W. P. Co. 90 Wis. 370), and the judgment of the trial court now appealed from is held to be in substantial compliance with the mandate of this court on that appeal.</p> <p>4. Although a motion to vacate an order dismissing an appeal, if in the nature of a motion for a rehearing, is irregular unless made within thirty days after the decision, yet where the motion is made within the sixty days limited by sec. 3071, B. S., for remitting the record, this court still has jurisdiction over the case, especially where the record has been retained by direction of the court for the purposes of the motion.</p>

<p>Appeal from a judgment of the circuit court for Clark county: ~W. F. Bailey, Circuit Judge.</p> <p>This was an action brought by the plaintiff against Henry C. Parmly as trustee for the defendants Charles A. Avery, Samuel K. Cray, Aaron M. Wilcox, Z. 8. Wilson, and against him individually, to reform a certain contract concerning-the sale and conveyance of about 20,600 acres of land in Clark county, and for a construction thereof, and for relief against an alleged penalty therein, and for judgment for the-amount due the plaintiff for purchase money, and for strict, foreclosure and other relief.</p> <p>It was alleged that the plaintiff was the owner in fee of the lands in February, 1888, described in the complaint, and that, in the transactions between him and the defendants,, said Henry C. Parmly acted as such trustee for and represented his codefendants as well as himself; that on the 29th of September, 1888, the plaintiff executed and delivered to the said Henry 0. Parmly, as trustee, a contract, which is set out at length, in which it was recited in substance that June 16, 1888, a previous contract had been made between the parties by which the plaintiff sold and agreed to convey by warranty deed to said Henry C. Parmly the said lands for $45,000, one half cash, and the balance in one, two, and three years, in equal payments, with interest as therein stated, and guarantied to warrant and defend the title to said land, and that there were 10,000,000 feet of pine timber and lumber and 15,000,000 feet of hardwood timber and lumber, including basswood, thereon, and had further agreed to furnish, said Parmly, trustee, an abstract of title to the said land, showing perfect title in him (said Gates), and that he had a good and lawful right to convey the same; that there had been delay in furnishing abstracts of title, and the plaintiff had previously executed to Parmly, trustee, a warranty deed of a portion of the lands, and had on that day, September 29, 1888', delivered to him a warranty deed of all said lands, confirming said prior deed, and desired to receive the cash payment of $22,500. The said second contract recited that the plaintiff had furnished to Parmly, trustee, an abstract of a portion of the land, and had transferred to him certain outstanding tax certificates thereon, and that Parmly, trustee, had paid the plaintiff $22,500 in cash, and it was stipulated, in consideration of the premises, that the plaintiff should within four months furnish and deliver a complete abstract of title to said lands, and by August 15, 1889, he would furnish and deliver to said Parmly, trustee, an abstract of title thereof showing a perfect title in said plaintiff at the date of said deed to Parmly, trustee, or showing the title to have been made perfect prior to the making of such abstract; that in case of failure “ to furnish such abstract, or if the abstract furnished failed to show a perfect title,” as stipulated aforesaid, “ no further sum of money whatsoever shall be held due from said Henry 0. Parmly, trustee, to the said James L. Gates, for or on account of said property under this contract, or under the contract of June 16, 1888, or otherwise, but that the said Parmly, trustee, shall hold the said title to the said lands free and discharged of any claims whatsoever for further purchase money, and the said $22,500 at this date paid shall be in that event the full consideration and purchase price of said property, unless the title should be defective as to 800 acres only or less,” in which event Parmly was to have a deduction at the rate of five dollars per acre therefor, or as much more as it should be worth. In case the plaintiff coin-plied with the terms of the contract as stipulated, Parmly, as trustee, was to pay him the further sum of $22,500, in payments and with interest as therein stated; and said named agreement was to take the place in all respects of the one of June 16,1888. It was further stipulated that the second contract should be, and be construed “to be, a personal contract between the parties, and its terms and provisions shall constitute no lien on any real estate mentioned therein; ” and the second contract contained the same guaranty as the former one as to the quantity of lumber and timber, and that, if the amount of land fell short of 20,000 acres, the plaintiff was to pay five dollars per acre for each acre it fell short, and pay on demand to Parmly, trustee, the actual value of any deficiency of lumber and timber.</p> <p>It was alleged that Gates, at the date of said second contract, then being the owner in fee simple of said lands, sold the same to the defendants for $45,000, and by his deed set out in the complaint conveyed the same to Henry C. Parmly, trustee. The deed was one of special warranty only, as against persons claiming under the grantors. It was alleged that, the plaintiff had fully performed said contract, and that the entire amount of purchase money had long since become due; that, although he had not performed to the fullest extent within the time expressly required, yet that time was not of the essence of the contract, and that extensions of time had been given after the four months specified in the contract; that the plaintiff.had been to an expense of $3,000 in furnishing abstracts, and that the lands conveyed to the defendants in respect to the title of which there is no dispute, at the date of the deed, were and are of the value of $75,000; that the defendants had only paid the plaintiff $18,000, and the recital in the contract to the effect that the sum paid was $22,500 did not truly state the facts, and was retained therein by mistake and oversight; that the clause therein declaring the contract to be a personal one and that its terms and provisions should constitute no lien on the-lands, was inserted therein through fraud, false representations, and connivance of the defendant Henry 0. Parinly, trustee; “ that when the contract was read to the plaintiff,, his attention was directed to it especially, and he inquired of said Parmly and his attorney, and was assured by both of them, falsely and fraudulently, that the clause cut no figure whatever in the contract, that it was merely formal,, and that by it plaintiff released to the defendants no rights he had, either in law or equity,” and he signed it relying on such statements. The plaintiff averred that, in an action commenced in the-circuit court for Clark county by him against the defendants, wherein judgment was rendered March Y, 1891, it was adjudged that the said deed so executed as aforesaid was a full compliance with, and performance by the plaintiff of,, the contract on his part; and the plaintiff insisted that'the condition precedent stated in the contract should be' construed and held to operate by wTay of penalty or forfeiture,, and not as liquidated damages, and did not impose on the plaintiff the loss of $22,500, but only such damages as the •defendants might show that they had in fact sustained, but the defendants were insisting upon said clause and a forfeiture of $22,500 under the same; and judgment was asked as above stated.</p> <p>The defendants, in their answer, denied that the plaintiff was at any time the owner of all the lands described, and alleged that he had no title nor right of possession of a large part thereof, and could not and did not convey the same by said deed, and specified defects and failures of title of various kinds to a great part of the lands described therein, and that he had not since conveyed them to the defendants. They alleged that they paid on said purchase $22,500, and denied that anjr mistake in the recital of the contract on that subject occurred, or that any other sum ever became due, and denied that the plaintiff fully performed tbe said contract, and insisted that the condition precedent in respect to the second sum of $22,500 had not been performed, and pleaded the terms of the contract in that respect in bar of the plaintiff’s claim, denying that the plaintiff delivered as required abstracts of title showing perfect title in all said lands, and that, as shown by said abstracts, the title to 6,000 acres of said lands had failed; that, as to over 100 forty-acre tracts, the plaintiff had sold all the pine timber thereon to the Northwestern Lumber Company, and since the contract with said Parmly, trustee, it had entered thereon, and cut and removed a large quantity of valuable timber therefrom; that the title to a considerable portion of the lands was by tax deeds which had not been recorded three years, and they were liable to be attacked and held void; and that there were liens and incumbrances on other portions; and that some of said lands belonged to other parties,— all of which appeared by the abstracts. The defendants insisted that there had been a breach of the contract as to the amount of pine and hardwood timber on said lands at the time of the sale, and alleged that the plaintiff had sold and conveyed away such timber, so that, at the time of the execution of the contract, there were on said lands not to exceed 3,000,000 feet of pine timber or lumber, and 5,000,000 feet qf hardwood, including basswood, and the defendants had been damaged, by reason of the premises, $14,000. The defendants further pleaded in bar a part of the same judgment in the previous action by the plaintiff against the same defendants, rendered March 7, 1891, mentioned in the plaintiff’s complaint, alleging that said action was for the same cause as the present action, and that judgment was given thereon on the merits dismissing the plaintiff’s complaint, and that such judgment remained in full force, etc.</p> <p>.. The court found, among other things, that the plaintiff, prior to January 1, 1889, delivered to the defendants a com-píete abstract of the lands described in the contract, showing complete title to the defendants through the plaintiff’s deed, except as to tracts ■ mentioned in groups under subdivisions 1 to 14. It was found that the plaintiff sold, or contracted to sell, the pine timber on eighteen forty-acre tracts to various parties, but the court was of the opinion that proof given on the trial to the effect that the timber had been cut off cured the defects of title; that October 13,1887, the plaintiff had entered into a contract with the Northwestern Lumber Company by which he agreed to cut, haul, and deliver to it all the pine timber standing and growing upon 108 forty-acre tracts, and transferred the title to such timber to said company; that, during the winters of 1888-89 and 1889-90, the plaintiff cut off said lands 700,000 feet of pine, which completed the delivery of timber under said; contract, and the said company conveyed to said plaintiff the said tracts October 14, 1890; that the defendants purchased with notice of said contract, and subject thereto. To nineteen forty-acre tracts, containing 760 acres, the plaintiff had no title, and conveyed none; and as to ten other forties the tax deed under which the plaintiff claimed was- impeached, and the lands were recovered, because the notice of tax sale did not specify that the lands were to be sold “at public auction,” but the court found in favor of its validity. The title to a few other tracts appears defective, and there were tax sales of some of the lands from which the defendants had to redeem, paying $206.93 on that account ; that nine particular forties of the land to which the plaintiff had no title were worth $2,880; that as to eleven tracts, the plaintiff tendered to the defendants at the trial a warranty deed describing and an abstract of title showing corrections as found, but the defendants refused to accept the same; and that as to ten other forties, the title to which was defective, there was no proof of value. In respect to the quantity of pine timber taken off the lands by the plaintiff for the Northwestern Lumber Company, found at 100,000' feet, of the value of $1,400, the evidence of an experienced estimator satisfactorily shows that the real amount was 2,000,000 feet, and there was really no competent evidence that it was any less. The evidence as to the title to the lands described in the deed is, in many respects, extremely unsatisfactory, and the abstracts are lengthy, and extend to between 400 and 500 tracts, and counsel differed widely as to the results shown by them.</p> <p>The court further found that the defendants, prior to September 29, 1889, knew that the plaintiff’s title to the lands consisted in general, of tax titles; that he was to give no other or better title, provided that such tax titles should appear valid on their face and superior to other titles thereto, with a covenant that the plaintiff had not, by any act of his, incumbered or clouded his title, such as it was; that after August 15,1889, the plaintiff expended time and money in endeavoring to perfect the title to portions of the lands, and the defendants knowingly received the benefit of it without objection; that the lands, at the date of the contract, were worth over $45,000; that the evidence to show that the lands in question did not have on them the amount of timber and lumber specified in the contract was insufficient and unreliable; that it was adjudged and determined in the previous action between the parties that the plaintiff, by the terms of the contract, was not to, and did not, warrant the title to the lands embraced therein.</p> <p>As conclusions of law, the court found that it was not the intent of the parties that the plaintiff must show and have a complete title to all the lands as a condition precedent to the payment of the deferred payment, but that the conditions of the contract were fully met when an abstract of title was delivered and furnished showing such complete title, and that the abstract as shown at the trial showed a complete title in the plaintiff except as to 760 acres; that the several conveyances of standing timber upon portions of said lands did not constitute clouds upon the plaintiff’s title, and that when the timber was cut such conveyances were exhausted; that the provision of the contract that it should be construed as a personal one, and that it was not to constitute a lien upon any real estate therein mentioned, constituted no bar to the enforcement of a vendor’s lien, and the plaintiff was not bound by it; that the condition precedent in the- contract was in the nature of a penalty for nonfulfilment, and not for liquidated damages; that under the circumstances of the case, the plaintiff having ¡completed and perfected the abstract before the case was finally submitted, there was such a compliance with the terms and conditions of the contract as to entitle him to recover the balance of the unpaid purchase money, less the value of the lands to which the abstract failed to show complete title, in no case less than $5 per acre, and less the value •of the timber cut from the said lands subsequent to the making of said contract, and less the unpaid taxes and redemption money received by plaintiff according to the statement, which showed the balance due to be $15,949.06, for which plaintiff was entitled to a decree, without interest, and without costs to either party. The deductions allowed to the ■defendants were for $2,880, for nine forties; the contract price of ten other forties, $2,000; $1,400, for 700,000 feet of timber cut on the Northwestern Lumber Company contract; and the amount paid for redemption and redemption money, $270.94. ,</p> <p>Numerous exceptions were taken to the material portions of the finding and in respect to the rejection of the evidence •offered during the trial. Among other things, at a late period in the trial and evidently out of its regular order, the defendants’ counsel offered in evidence various tax deeds ■from Yolume 29 of Deeds, under which it was claimed the plaintiff made out title for over twenty tracts of the land, and which the defendants’ counsel claimed were void on their faceto objection being made to their reception. The court refused to receive them. The plaintiff’s counsel then offered other abstracts showing the state of the title up to that time. Objection was made that over, four years had elapsed during which time the plaintiff had failed to perfect the abstracts according to' the contract, and that the defendants had no time then to examine them. They were, however, received. Thereupon the trial closed.</p> <p>Such other matters as are material are stated in the opinion. The plaintiff had a money judgment in the usual form for $15,949.06, from which the defendants appealed.</p>

<p>Criminal Law and Practice. (1) Change of venue for prejudice of judge: Conditional application. (2) Inquisition as to sanity: Constitutional law. (3) Assistant prosecutor: Impartiality. (4-8) Plea of insanity: Practice: Evidence.</p> <p>1. Under sec. 4686a, S. & B. Ann. Stats., when a change of venue is applied for in a criminal case on account of the prejudice of the judge, it is a matter within the discretion of the court whether it will award the change or call in another judge to try the action; and the defendant cannot couple with such application a condition that the case shall not be sent out of the county. The filing of an affidavit of prejudice, therefore, if coupled with such a condition, does not deprive the court of jurisdiction to proceed with the trial.</p> <p>2. Sec. 4700, R. S., providing for an inquisition to determine whether the defendant is, at the time of the trial, insane and therefore incompetent to act for himself, is in aid, and not in derogation, of the constitutional provision (art. I, sec. 7) securing to him a fair and impartial trial.</p> <p>3. No attorney should be permitted or selected to assist in the prosecution of a criminal case unless he is as unprejudiced and impartial as the prosecutor provided by law.</p> <p>4. Sec. 4697, S. & B. Ann. Stats, (providing that if the jury fail to agree on the special issue of insanity the court shall proceed forthwith to trial on the main issue, and the question of insanity involved in the special issue shall be tried and determined with the plea of not guilty), is valid. Bennett v. State, 57 Wis. 69, followed.</p> <p>5. Upon the trial of the plea of not guilty in such case the defendant cannot admit the homicide in order to obtain the affirmative of the issue as to his insanity and thus obtain the right to open and close the case.</p> <p>6. Upon the question of the insanity of a defendant charged with murder, evidence of his acts, conduct, and declarations after the homicide is admissible, and the period of inquiry should be sufficiently extended to include such acts, conduct, and declarations so far as they relate to, are connected with, or grow out of, or illustrate, or afford material evidence of, his mental condition at the time of the homicide. In this case a limitation of the inquiry to four days after the homicide is held to have been unreasonable and to have deprived the defendant of the right to produce relevant evidence which might show that, after a reasonable time had elapsed for his return to his normal condition, his mental condition and situation remained unchanged, and that they were not, at the time of the homicide, as claimed by the prosecution, the result of protracted intoxication, producing a fit of drunken excitement and fury.</p> <p>7. Testimony in behalf of the defendant in such case, directed to the question of his insanity at the time of the homicide, should not be excluded merely because, although relevant, it would be cumulative.</p> <p>8. It was improper in such a case to receive expert testimony to the effect that, although a man suffering from delirium tremens has no more control over his actions than a man suffering from delirium produced by any other cause, he is nevertheless sane.</p>

<p>Appeal from an order of the circuit court for Brown county: S. D. Hastings, Jb., Circuit .Judge.</p> <p>This is an action to recover damages against the defendant company for personal injuries sustained by the plaintiff, May 24, 1890, while in the- employ of the Milwaukee & Northern Railroad Company as a brakeman on its road, and caused, as it is alleged, by the negligence of the latter company. The ground relied on to charge the defendant company for the tort or wrong of the Milwaukee & Northern Railroad Company is that the defendant company afterwards “purchased and had assigned to itself the railroad, franchises, immunities, stocks, bonds, and all property and appurtenances of the said Milwaukee & Northern Railroad Company, and has thereby become subject to all the liabilities of said company.” The defendant demurred to the complaint on the ground that it' did not state facts sufficient to constitute a cause of action; and from an order overruling such demurrer the defendant appealed.</p> <p>To the point that where a corporation merely sells its property to another corporation the identity of the companies is not affected and therefore there is no change in the liability, they cited, be sides cases cited in the opinion, Central II. Co. v. Brinson, 64 Ga. 415; Sappington v. L. R., M. B. dk T. II. Co. 11 Am. & Eng. R. Oas. 330.</p> <p>They contended, inter alia, that where one corporation, with statutory power so to do, transfers to another corporation all its stock, bonds, property, appurtenances, franchises, and immunities, there is an absolute extinction of the selling corporation. It deprives itself of corporate existence, ceases to be, and is absorbed by the purchasing company. Slee v. Bloom, 19 Johns. 414; Tod v. Ky. U. L. Co. 51 Fed. Rep. 51; Hibernia Ins. Co. v. St. Louis & N. 0. Transp. Co. 13 id. 516; Railroad Co. v. Ga. 98 U. S. 359; Powell v. H. M. R. Co. 42 Mo. 63; State ex rel. Brown v. Bailey, 16 Ind. 46; Lake Onta/rio 8. R. Co. v. Cwrtiss, 80 N. Y. 224; 1 Rorer, Railroads, 91; Eaton <& H. R. Co. v. Hunt, 20 Ind. 463; 1 Beach, Priv. Oorp. §§ 321, 338, 343; Brum v. Merchants’ Mut. Lns. Co. 16 Fed. Rep. 143; Hill v. Hisbet, 100 Ind. 341; 1 Thomp. Oorp. §§ 324, 330, 396; 4 Am. & Eng. Ency. of Law, 212i; Central R. dk B. Co. v. Ga. 92 U. S. 665; Philadelphia da W. R. Co. v. Md. 10'How. 316; 2 Morawetz, Priv. Oorp. § 942; 3 Rapalje & M. Dig. R. Law, 82; Snell v. Chicago, 8 L. R. A. 858; State ex rel. Att’y Gen. v. Sherman, 22 Ohio St. 411. Where one corporation goes entirely out of existence by being incorporated into another, the corporation into which it is merged will succeed to all its property and be answerable for all its liabilities. Louisville, N. A. dk C. R. Co. v. Boney, 3 L. R. A. 438; Mi. Pleasant v. Beck-, with, 100 U. S. 514; Thompson v. Abbott, 61 Mo. 116; Púll-manes Palace Car Co. v. M. P. R. Co. 115 U. S. 581. Where one corporation transfers all its property to another, the obligations of the old corporation may be enforced against the new. Hibernia Ins. Go. v. St. Louis <& N. 0. Transp. €o. 13 Fed. Nep. 516; S. G. 10 id. 596; Brum v. Merchants' Mut. Ins. Go. 16 id. 143; 1 Beach, Priv. Oorp. §§ 343, 360; Daniels v. St. L., K. G. & N. B. Go. 62 Mo. 43; Slatterly v. St. L. d¡ If. 0. Tramsp. Go. 91 id. 217; 1 Eorer, Nailroads, 38; Lauman v. L. V. B. Go. 30 Pa. St. 42; State ex rel. Brown v. Bailey, 16 Ind. 46; Gashman v. Brownlee, 128 id. 266; Beach, Nail ways, § 553.</p>

<p> Insurance against fire: Waiver of conditions: Knowledge of agent acquired in another capacity. </p> <p>A provision in an insurance policy that it should be void if the property was incumbered by a chattel mortgage is held to have been waived where the agents who issued the policy had themselves, in their capacity as bankers, taken a chattel mortgage on the property, and that fact was known to one of them when the policy was issued.</p>

<p> Alienating wife's affections: Evidence: Wife's letters to husband: Objections. </p> <p>1. In an action for tlie alienation of the affections of plaintiff’s wife, letters written by her to him prior to the alleged alienation, showing her affection and regard for him as a husband, are admissible on the question of damages.</p> <p>% Where, in such a case, numerous letters of that character were offered together, a general objection to them on the ground that they were privileged communications was properly overruled. If some of them were written after the alleged alienation they should have been objected to specifically on that ground.</p>

<p> Insurance against fire: Agency: Appointment: Apparent authority: Court and jury: Special verdict. </p> <p>1. In an action on an insurance policy it was not error to take from the jury the question whether the person who issued the policy was in fact defendant’s agent, where he admitted that he had never been made an agent and his whole evidence conclusively showed that he issued the policy depending on a probable ratification by defendant and on his probable early appointment as an agent, and especially as the contention that he was in fact an agent was practically abandoned on the trial and no exception was taken to an instruction that it was not claimed that he had actual authority to issue the policy.</p> <p>2. A request by the defendant to the person who issued the policy that he collect the balance due from a former agent whose business he had purchased, or that he make up the latter’s accounts from the books, or that he mail a canceled policy, did not give him apparent authority to issue policies.</p> <p>3. Where the answers to certain questions of a special verdict disposed of all the material issues in defendant’s favor, and there was no evidence to sustain the answers to the remaining questions in plaintiffs’ favor, the latter were properly stricken out.</p>

<p> Railroads: Fires negligently set: Notice of claim, how and when served: Damages: Evidence of value of land. </p> <p>1. Notice to any agent of a corporation having a general authority to act for it in respect to the subject matter to which the notice relates, is notice to the corporation.</p> <p>A In ch. 203, Laws of 1893 (requiring notice to be given to the railway company of a claim for damages by reason of a fire set from a locomotive), the provision that “such notice may be given in the manner required for service of summons ” te permissive, not mandatory, and a delivery of the notice to the general claim agent of the company is sufficient.</p> <p>3. Under the provision of said act requiring the notice to be given “ within one year after the happening of the event ” causing the damage, the notice of a claim for damages by reason of a fire is in time if received at the general claim office of the railway company, by its general claim agent, within a year after the fire ceased burning on the claimant’s land.</p> <p>4 Evidence as to what the owner of land had been offered for it, per acre, before it was injured by a fire set from a locomotive, was not competent on the question of damages.</p>

<p>>(1-3) Appeal: Review of findings: Bill of exceptions: Sufficiency of exceptions. (4-6) Promissory notes: Presentment for payment: Insolvency of maker: Waiver by indorser.</p> <p>1. The findings of the trial court are reviewable on appeal if the bill of exceptions certified by the trial judge shows that it contains all the evidence in the case material to the questions raised on the appeal; and such showing maybe made by a statement either in the bill itself or in the certificate.</p> <p>2. Exceptions to findings of fact or conclusions of law need not state the grounds thereof.</p> <p>5. An exception in general language to a finding is sufficiently specific if such finding covers but a single proposition or if all the propositions contained therein are erroneously found.</p> <p>4. Presentment and demand of payment of a promissory note at the abandoned place of business of the maker is insufficient to charge an indorser, if the maker has another place of business or his place of residence is known or may be ascertained by reasonable diligence.</p> <p>5. Mere insolvency of the maker of a note does not excuse presentment to him and demand of payment in order to charge an in-dorser.</p> <p>>6. A note was secured by a chattel mortgage running to the payee but given to protect indorsers. After maturity of the note a part of the mortgaged property was sold, with the consent and approval of an indorser, and the amount realized was indorsed on the note. Held, not a payment by said indorser such as would constitute a waiver of presentment of the note to the maker and a demand of payment.</p>

<p> Bailroads: Fire set by locomotive: Evidence: Immaterial errors: Notice of claim: Excessive damages: Bemission of part: New trial. </p> <p>1. In an action for injury to lands caused by a Are set from a locomotive, evidence that cinders from passing locomotives usually lodged upon the right of way, as to the direction and nature of the winds at the season of the fire and their liability in that section of the country to change suddenly, and as to the liability of dry grass on the right of way to take fire — although some of it was perhaps immaterial and related to matters of common knowledge — is held not to have prejudiced the defendant, and the error, if any, in its admission is therefore disregarded.</p> <p>2. Although the fire complained of in such a case is not traceable to any particular locomotive, it is competent to prove defendant’s negligence by circumstantial evidence.</p> <p>8. Evidence as to what the lands had previously produced is admissible in such a case upon the question of damages.</p> <p>4. The objection to a question calling upon a witness to state what, in his judgment, was the damage caused by the fire to the plaintiff’s land, should have been specifically to the form of the question; and the overruling of a general objection to such a question was not error.</p> <p>5. Error in allowing the complaint to be amended, more than a year after the fire, so as to bring into the case lands as to which no notice had been given as required by ch. 802, Laws of 1893, and in allowing proof of the injury to such lands, and in refusing to grant a nonsuit as to them, is cured by setting aside the verdict as to all damages in respect to those lands.</p> <p>6. In a tort action, where there is no fixed legal rule of compensation, a court is not at liberty to set aside a verdict on the ground that it is excessive, unless it is so excessive as to create the belief that the jury have been misled either by passion, prejudice, or ignorance.</p>

33. Bundy, Judge. The plaintiffs have the legal title to and are in possession of forty acres of land not situated in a city or village. They obtained their title from one Lewis Brown, who purchased and received a conveyance thereof, May 22, 1880. The defendants obtained and docketed a judgment against Brown Eebruary 6,1883.

<p> Attorney and client: Contract as to compensation construed: Contingent fee: Champerty: Fairness of contract: Burden of proof. </p> <p>G. and M. were interested as partners in paving contracts, but they stood in the name of G. and he had pledged them to a bank. M., being unable to raise his agreed share of the money necessary to prosecute the work, and being likely therefore to lose his interest in the contracts, made a written agreement with plaintiff, an attorney, by which, after reciting that he desired to protect his interest in said partnership and to arrange the same so that it might be used as collateral for loans to continue the paving, and that he desired the services of plaintiff to protect said interest and secure the loans, he assigned to plaintiff, in consideration of such services, one third of his share of all profits arising from said paving; and plaintiff therein agreed “ to use his best efforts to protect the interest of [M.] in said paving contracts and to secure necessary loans to continue said paving; ” and it was provided that if plaintiff should fail to secure for M. his interest in the partnership he ■should receive no compensation for his services. A separate assignment to plaintiff of a one-third interest in M.’s share of the profits arising from the paving was executed at the same time. Held:</p> <p>(1) The agreement between M. and the plaintiff, and the assignment to the latter, were not merely security for reasonable compensation, but entitled plaintiff, if successful in securing M.’s interest, to one third of the latter’s share of the profits.</p> <p>(2) The agreement was not that plaintiff should furnish the necessary money, but merely that he should use his best efforts to ■secure the loans.</p> <p>(3) The agreement and assignment were not champertous, although for a contingent fee consisting of a certain share of the amount involved, since plaintiff did not undertake to pay any expenses of litigation.</p> <p>(4) There having been no previous relations between M. and the plaintiff, they dealt with each other at arm’s length in making the agreement, and plaintiff is not bound to show that it was fair, just, and reasonable, as a condition of enforcing it.</p> <p>(5) Even if the relations between plaintiff and M. were strictly those of attorney and client and of a fiduciary character when the agreement was made, yet, there having been no fraud or undue influence, and the agreement having been made by M. willingly, understandingly, and for a good and valuable consideration,, it may be enforced.</p>

<p>Appeal from a judgment of the circuit court for Bayfield county: JohN K. Parish, Circuit Judge.</p> <p>Plaintiff, at the time of the agreement hereinafter mentioned, was a woodsman and pine-land explorer of large experience, well versed in respect to the location of valuable timber lands on the government domain in northwestern Wisconsin, and the methods to be pursued in order to legally acquire lands under the land laws of the United States. There was a class of such lands that had been kept out of the market for many years on account of a supposed right thereto under certain railroad grants. Plaintiff, by investigation at the general land office, became satisfied that such lands were in fact free from, any valid claim under railroad land grants, that they might legally be thrown open to settlement, and that persons might thereupon legally settle thereon and be entitled by virtue of such settlement, to priority under the homestead and pre-emption laws of the United States and the established practice of the general land office. Defendant desired to obtain a tract of such land. Plaintiff and defendant entered into an agreement, wherein and whereby the former agreed to instruct the latter in respect to such lands and the method of obtaining the same under the land laws of the United States, and to do all that was necessary in order to have such lands thrown open to settlement, so that the filing of claims might be made thereon, and defendant agreed, in consideration thereof, to pay plaintiff ten per cent, of the value of any tract of such land he might thereby acquire. Pursuant to such agreement, plaintiff furnished to defendant the minutes and description of 160 acres of such lands, and furnished him the necessary information in respect to complying with the land laws of the United States in order to obtain title thereto, through and by means of which defendant finally acquired such land. The value thereof was about $8,000, and the plaintiff claimed as his compensation $800. This is substantially the cause of action set forth in the complaint and established by the evidence.</p> <p>Certain parties made adverse claims to the land, which defendant extinguished by paying $150. On that ground he claimed, on the trial, that plaintiff failed to fulfill his contract by failing to do all that was necessary to secure to defendant his title. Defendant further claimed that the $150 should be allowed to him by way of recoupment, but no such claim was made by answer in the case. A demurrer to the complaint, on the ground that it fails to state a cause of action, was overruled by the court. At the close of the testimony defendant moved to dismiss the action on the same ground. Yerdict was rendered in favor of plaintiff for $700 by direction of the court. A motion was made to set aside the verdict and for a new trial, which motion was overruled. Judgment was entered in plaintiff’s favor, from which this appeal was taken.</p> <p>Counsel for the appellant contended, inter alia, that the contract upon which this action is brought tends to interfere with and to control the operations of the Interior Department of the United States and is void, especially as the compensation provided for is contingent, and as the person who undertook to perform the services in the department is a nonprofessional man, and when.he rendered the services had not been admitted to practice in the department. 3 Am. & Eng. Ency. of Law, 877; 9 id. 900; G-reenhood, Pub. Pol, 357, rule 300; Tool Co. v. Norris, 2 Wall. 45; Megui/re v. Cór-tame, 101U. S. 108; Oscanyan v. Arms Co. 103 id. 261; JElJe-hart Co. Lodge v. Crary, 98 Ind. 238,49 Am. Eep. 746; Wildey v. Collier, 7 Md. 273, 61 Am. Dec. 346; Wight t). Bvndshojpf, 43 "Wis. 344; Fawri v. Morin's Syndics, 4 Martin, 39, 6 Am. Dec. 701; Fuller v. Dame, 18 Pick. 472; Hatzfield v. Gulden, 7 Watts, 152, 32 Am. Dec. 150; FilsorHs Trustees v. Himes, 5 Pa. St. 452, 41 Am. Dec. 422; Buck v. First Hat. Bank, 21 Mich. 293,15 Am. Bep. 189. A contract for the performance of services in general terms, as an agent or attorney, and for the exertion of one’s personal influence and solicitation to secure the passage of a private or public act, is void as being prejudicial to sound legislation and against public policy. The tendency to corruption in such contracts places them beyond the pale of the courts, whether anything improper is contemplated by the contracting parties or not. Bryan v. Reynolds, 5 Wis. 200; Ghippewa V. <& 8. R. Oo. v. G., St. P., M. <& O. R. Go. 15 Wis. 224, and cases cited on pages 244, 245; Spaulding v. Ewing, 149 Pa. St. 315; Houl-ton v. Dunn, 60 Minn. 26; 9 Am. & Eng. Enoy. of Law, 898 ; Greenhood, Pub. Pol. 361, rule 300; Weed v. Black, 2 MacArthur, 268; Olippinger v. Hepbaugh, 5 Watts & S. 315, 40 Am. Dec. 519; Powers v. Skinner, 34 Yt. 214, 80 Am. Dec. 611.</p>

<p> Contracts: Master and servant: Term of employment: Evidence: Offers: New trial, </p> <p>1. A letter by plaintiff, a saw filer, asking defendant, a sawmill owner, about “ the coming sawing season,” “ bow long a run ” he expected to have, and what he was willing to pay plaintiff “to come and keep the saws up;” a letter by defendant in reply, stating what he would pay plaintiff and that he expected to have a good season’s work, and requesting plaintiff to answer at once and let him know whether he was coming or not; and an acceptance by§ plaintiff of the offer contained in such reply — constituted a contract of employment for the season, or at least as long as the de-' fendant ran his mill.</p> <p>2. An offer of the oral testimony of a witness who has not been sworn and is not in court is properly rejected; and the rejection of such an offer is not error, even though the witness came into the court room while the offer was being made, where it does not appear that the court was informed of his presence or that there Was any ¡ refusal to allow him to be sworn.</p> <p>S. A new trial on the ground of newly discovered evidence was properly refused in such a case, where no adequate excuse was shown for not having the witness in court at the trial.</p>

<p> Reference: Powers of referee: Practice: Partnership: Accounting. </p> <p>1. The powers of a referee are limited by his order of appointment,-., and are not to be enlarged by implication or consent of the parties.</p> <p>2. In an action to dissolve an alleged partnership, and for an accounting, etc., a reference “to take an account between the parties^ herein and report the same to the court ” was a reference for the-information of the court under snbd.'2, Sec. 2864, R. S., and gave the referee ho power to pass upon and determine the basic issues in the case, such as the fact of partnership.</p> <p>3. Regularly, in such a case, there should be a finding of the fact of partnership, or of the facts in issue upon which the rights of the parties upon the accounting depend, before an account is ordered,</p> <p>4. Where a referee appointed merely to take an account and report' the same has taken testimony and made findings upon the funda- ' mental questions upon which the rights of the parties depend, his report does not have the effect of a special verdict under sec. 2865j R. S., or preclude the court from making its own findings upon those questions.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: Jomsr K. Paeish, Circuit Judge.</p> <p>This was an action to recover damages sustained by the-plaintiff by reason of the alleged negligence of the defendant while in its employ as a laborer in its steam sawmill.. The mill is a double mill, and the logs are brought into it over live rollers by a chain with brads which pierce the logs and haul them up on a log deck, on each side of which the carriages run upon which the logs are placed and carried forward to the saw. The carriage and saw on each side, forming a double mill, are supplied with logs from the log-deck, and the machinery for handling the logs and sawing runs with great speed. A man is employed on the log deck who stands there and throws the logs, as they come in,, down an incline to the carriages, with levers operating machinery for that purpose, and when a log is thrown onto the carriage it is controlled and handled by means of a steam trip or jigger operated by the sawyer with his foot. The work of handling the logs on the log deck and carriage is required to be done in a quick manner, so as to keep out of the way of the machinery, and the plaintiff alleged that it was a hazardous and dangerous empioj'ment, even to experienced hands, and was known to be such by the defendant.</p> <p>On the day of the injury the log-deck hand had become disabled, and John W. Murray, the defendant’s superintendent and general manager (and who was joined as a defendant with it), took the plaintiff, as he alleges, from his work in the shingle mill, to assist him (Murray) on the log deck, knowing the plaintiff to be without experience, skill, or knowledge in that work, well knowing its dangerous character, and without informing the plaintiff of or explaining the same to him, and when this machinery, steam trip, and jigger were out of repair and defective, and suffered and directed the plaintiff to assist him (Murray) on the log deck. It is alleged that Murray used the lever and threw a log down the incline to the carriage in a careless and negligent manner, one end in advance of the other, so that it swung around and failed to catch on the carriage properly, when the jigger operated by the sawyer caught the log near its middle, instead of the end, and threw it around suddenly, without warning, and with great force and violence, striking the plaintiff on his leg, knocking him down, breaking his right leg, and indicting on him other injuries, etc.; that the injury was caused without the fault of the plaintiff, and wholly by reason of “ the fault, neglect, and wrongful acts of the defendants in putting the plaintiff to work in such danger without informing him thereof, and in allowing said machinery to be so out of repair and defective, and in the said Murray carelessly, negligently, and wrongfully throwing said log down the incline in an irregular manner as aforesaid.”</p> <p>It was admitted by the answer that the defendant Murray was the superintendent in charge of, operating, and running the mill of the defendant company, that the mill was constructed and operated substantially as stated, and that the plaintiff was injured while at work therein at the time stated; but it was alleged that his injury was caused by his own carelessness and neglect, and not by the carelessness or neglect of either of the defendants, and, save as admitted, all'other allegations of the complaint were denied.</p> <p>At the trial before a jury, evidence was given on the part of the plaintiff tending to show that he had worked for the defendant for over two summers in and about the mill and shingle mill, and just before his injury he was at work in the shingle mill; that Murray called him to work on the log deck, and gave him the cant hook, and Murray was then handling the levers on the log deck by which the logs were shot up onto the deck; that he straightened two logs before he got hurt; that the log,was lying crooked on the deck; that Murray told him to go and straighten it, and when he was doing this the sawyer kicked the log with the jigger, and the log was thrown over against him, breaking his leg; that he had never worked at that kind of work before. Murray did not explain that it was dangerous, but the evidence tended to show that he had seen and observed how the work was done. The evidence was that the work on the log deck was usually done by one man, who handled the levers that operated the steam kicker, a device by which logs were thrown from the chain, as they came in, to the carriage on either side; that the plaintiff did not use this lever at all, but that Murray was there using it, and the plaintiff only used the cant hook to straighten the logs around, and Murray directed him to straighten the log when he got hurt; that the sawyer ought to have been looking to see that he was not in the way when he tripped the jigger. And the evidence also tended to show that it was not safe to go down on the log deck to straighten a log without first signaling the sawyer so that he might not throw the jigger up; that it was usual to signal him, although he probably would be in view of the sawyer in going down on the deck; that it would be dangerous for any man who had never had any experience to be put to work on the log deck. The defendant moved for a nonsuit, but it was denied.</p> <p>The defendant Murray testified that he and the plaintiff, at the time of the injury, were together doing the work of one man on the log deck, and that he called the plaintiff up to roll logs or straighten them, and he worked the lever to throw them upon and down the log deck on either side; but he denied that he gave him any direction or indication in respect to the log which injured him. He called him to help witness for the time being, and did not leave the entire work with him, for the reason that the device that throws the logs off from the live roll either one way or the other worked very fast and by steam, and he was afraid to trust it in his hands, for fear he would break it, and so stayed to handle it himself. That he did not signal the sawyer, when the plaintiff went down near the log, not to raise the jigger; that the sawyer could see the man who stands on the log deck when he wants to by looking around the column, and the man who handles the levers on the log deck can step around sidewise and see the sawyer. This man and the sawyer communicate by motions sometimes. To do so they will step a little to one side. That he could have signaled the sawyer not to have thrown the log if he 'had wanted to. He insisted that he did not order the plaintiff to straighten the log, and that there was nothing to signal the sawyer for; that he volunteered without any instructions from him; that it was not his business to go there, and he did not know he was going there, and for that reason did not apprise him of its being dangerous. Had not given him any instructions what to do. Had him there to roll down any logs that got crooked, and to straighten the logs.</p> <p>The sawyer testified that he did not see the plaintiff when he was hurt; that from where he stood he had no view of his side of the log deck, excepting of the first log down at the bumpers, unless he stepped around the column; that if the man at the lever on the log deck signaled to him, he would have to step down about six feet from his place to see; that he never had any one signal to him, while he worked in the mill, that they were coming down on the deck, and not to raise the jigger; that he would have thrown the log just the same if he had seen the plaintiff, for he would have expected him to be off at the end of the deck. Murray could not signal him from where he stood at the levers. No man could do so.</p> <p>Considerable evidence was given showing the length of time the plaintiff had worked in and about the mill, and his opportunities for observing the nature and method of doing the work on the log deck, and how dangerous it was, and his knowledge on that point. It appeared that the man who did the work on the log deck had got injured in the morning, and Murray went to fill his place, and he called or motioned to the plaintiff in the shingle mill, on the same floor, in the lower part of the mill, about twenty feet distant, where he was working, to come and help him; that when he got on the log deck with Murray the latter took the cant hook and indicated to him to roll the logs; that he was there half or three quarters of an hour before he was injured; that Murray, the superintendent, and the plaintiff were filling the place of one man. ’</p> <p>At the close of the evidence the defendant asked the court to direct a verdict in its favor, which was denied; but, on motion, the court dismissed the action as to the defendant Murray. The jury found a special verdict, to the effect, among other things, that the defendant furnished the plaintiff with a reasonably safe place to work, and with reasonably safe appliances with which to work at the time of his injury, and that he was not injured by reason of any failure in this respect, or because the mill, machinery, or appliances got or remained out of repair. It was found: (1) That the ■defendant did not, through its foreman or any of its agents, ■warn the plaintiff of any danger in performing the work required. (2) That the plaintiff did not tell the defendant or its agents that he was familiar with the particular kind •of work he was doing when injured. (3) That the plaintiff did not know, nor could he by using reasonable diligence have learned of and comprehended, the dangerous character ■of the work he was doing when injured. (4) To the question, “Was the defendant guilty of negligence, or a want of ordinary care, or such care as persons or corporations of ordinary care ordinarily use, which was the proximate cause of plaintiff’s said injury?” the jury answered in the affirmative, and also found that the plaintiff was not guilty of any ■contributory negligence, and fixed his damages at $500. The plaintiff had judgment on the special verdict, from which the defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Bayfield ■county: John E. Paeish, Circuit Judge.</p> <p>Action to recover compensation for personal injuries. Defendants were engagedin operating a logging railroad which hauled logs to the shores of Chequamegon Bay, in Bayfield ■county, at which point the logs were unloaded as hauled, by a crew of men employed by ~W. A. Simpson & Go. Plaintiff was an employee of such company. Defendants had nothing to do with unloading the logs. The unloading consisted in rolling the logs from the cars onto skidways and into the water. The skidways sloped from the side of the track down towards the bay. The skids were placed from two to three feet apart, and np as near to the track as the movements of the train would permit. They were loose, and likely to move up so that the cars would strike them; and it was customary for the unloaders, in such cases, to place them back the proper distance. Plaintiff knew this fact, and knew that, if the proper care was not taken to replace the skids, they would be liable to be hit by the cars. On the occasion in question, one of the skids had been allowed to remain projecting sufficiently far toward the track to interfere with the passage of the train. Plaintiff stood about sis feet back from the track, with his back toward the way the train Avas approaching. He paid no attention to Avhether the skids were in proper place or not. The train, as it moved into position for unloading, struck the skid, throwing it against plaintiff, by means of which he was knocked under the cars and injured.</p> <p>The jury found that plaintiff was injured in the manner above stated; that defendants failed to use ordinary care to keep their track free from obstructions on the occasion in question, or to use reasonable diligence to observe whether there was any obstruction on the track; and that there was no want of ordinary care on the part of plaintiff that contributed to produce the injury. Damages were assessed at $2,000. A motion was made by the defendants to set aside the verdict, and for a new trial, because the verdict was contrary to the law and evidence. The motion was denied. •Judgment Avas entered on the verdict in plaintiff’s favor, from which this appeal was taken.</p>

<p> Mast&r and servant: Negligence: Personal injuries: Defective materials: Special verdict: Expert testimony. </p> <p>1. Plaintiff having been injured while in defendant’s employ as a carpenter by the breaking of a stringer in a staging which ho was. constructing, findings of a special verdict to the effect that defendant was guilty of a want of ordinary care which was the proximate cause of the injury; that defendant did not furnish plaintiff with a reasonably safe place to work and reasonably safe and suitable materials with which to build the staging; that plaintiff did not know, nor could he have known by the use of ordinary care and diligence, that the materials furnished were defective; that defendant’s secretary gave special instructions to use the stringer which broke; and that there was no other and safe lumber at hand, provided by defendant, which might have been used — are held to establish actionable negligence on the part of defendant.</p> <p>% An answer by the court to a question in such verdict, to the effect that plaintiff was injured while in the employ of the defendant “as alleged in his complaint,” is held not a ground for reversal, attention not having been called at the time to the fact that the jury might understand it to mean that the allegations as to the-cause of the injury were true, and it appearing from other answers that the jury could not have so misunderstood it.</p> <p>3. The plaintiff at the time of the accident having been at work on the staging which broke, the question “Did defendant furnish plaintiff with a reasonably safe place to work and reasonably safe and suitable materials to build the staging? ” is held to be a single question.</p> <p>4 It was not a material error in such a case to allow an expert bridge builder to give his opinion as to the sufficiency of a stringer like the one in question to bear the weight put upon it.</p>

<p> Public lands: Railroad grant: Title, </p> <p>A grant of lands by Congress to the state to aid in the construction of a railroad (13 U. S. Stats, at Large, 66, ch. 80) was a grant in prcesenti, and when the road was located and the exact sections identified the title attached as of the date of the grant, so that the United States could not afterwards give title by patent to another.</p>

PaRish, Circuit Judge. The plaintiff brought this action to recover damages for personal injuries received by him by and through the alleged negligence of the defendant while he was employed in its sulphite pulp mill at Ashland, Wisconsin.

M. Webb, Judge. This action is for the recovery of the amount of an alleged illegal tax paid to the defendant city by plaintiff under protest. The complaint does not state that any claim was presented to the common council for consideration before suit brought; otherwise it is conceded that it states a good cause of action. Defendant demurred to the complaint upon the ground, among others, that it fails to state facts sufficient to constitute a cause of action.

Y. Baedeen, Circuit Judge. They contended, inter alia, that if defendants had not violated sec. 1728, S. & B. Ann. Stats., and had not employed or allowed plaintiff to work in their factory, he certainly would not have been injured there; and this violation of the duty imposed by law was negligence on the part of defendants and was the proximate cause of the injury.

Y. EaRdeen, Circuit Judge. The appellant obtained judgment against the respondent in the municipal court of Lincoln county, June 23, 1894, for $454.10 and costs. On the 2d day of July following a notice and affidavit for appeal were received by the municipal judge by mail, but no costs were then paid.

Y. Baedeeh, Circuit Judge. The plaintiff claimed to be the equitable owner of certain pine lands, the legal title to which was in the defendants, and brought his action to compel a conveyance to him of said lands in pursuance of a written agreement, and to set aside certain tax deeds obtained on said lands, and for other relief.

Y. Raedles, Circuit Judge. Action of ejectment, brought by the original owner of land against a tax-deed claimant. The defendant had two tax deeds,— one based on the tax sale of 1882, recorded September 12, 1889; the other on the tax sale of 1886, recorded May 25, 1889.

Y. Bandeen, Circuit Judge. They contended, inter alia, that a town is liable only for defects in the worked and traveled part of the road. It is not bound to keep the highway in its whole width in a suitable or safe condition for travel. Mathews v. Baraboo, 39 Wis. 674; Kelley v. Fond du Lae, 31 id. 186; James v. Portage, 48 id. 680; Seward v. Milford, 21 id. 489; Ireland v. 0H. d?

Y. Baedeen, Circuit Judge. The plaintiff purchased of the defendant county certain tax certificates of the tax sale of 1894 for the delinquent taxes of 1893. In November, 1894, she filed a claim with the county clerk for the return of the money paid by her for such certificates, on the ground that the certificates were invalid by reason of irregularities in the proceedings, which irregularities were set forth at length.

Appeals from orders of the circuit court for Ashland-county: E. B. Bundy, Judge. The appellants moved in this-court for orders staying proceedings pending the appeals. Replevin actions commenced in the circuit court for Ash-land county, brought up to be heard on motions by appellants for stays of proceedings pending appeals.

Gr. SiebeckeR, Circuit Judge. This was an action to recover damages for a personal injury received by the plaintiff at or near Coon Rapids, Iowa, June 16, 1894, while he was traveling on the passenger train of the defendant company, by reason of the derailment of the cars caused by the negligence of the company, in that its track, railroad bridge, roadbed, ties, frog, and appliances, to the distance of 100 feet over and to the westward of Coon river, about half a mile east…

D. Hastíeos, Je., Circuit Judge. This was an action to recover damages for personal inju- • ries sustained by the plaintiff in consequence of the alleged negligence of the defendant, while in its employ as a locomotive firemaa on one of its freight trains.

D. HastiNgs, Je., Circuit Judge. Actio.i to recover damages alleged to have been caused to plaintiff by fire negligently set by defendant, August 3, 1893.

F. Bailey, Circuit Judge. They argued that at the time of the filing of the affidavit of prejudice and motion for change of venue no proceedings had been taken by either party before the court and the trial had not in any sense begun. The application was therefore seasonably made. Eldred v. Becker, 60 Wis. 48. Ch. 268, Laws of 1889, under which the struck jury in question was attempted to be drawn, is borrowed verbatim from the statutes of Minnesota (Gen. Stats.

Eish, Circuit Judge. On the afternoon of the 23d day of December, 1893, at a few minutes after 6 o’clock, Garrett J. Groesbeck, accompanied by his little son, who was seven years of age, in a-one-horse open buggy, were driving southward upon one’ of the principal thoroughfares of Walworth county, called the “ Geneva Eoad,” and while crossing the track of the defendant company nearly at right angles the buggy was-struck by the engine of an express train on the defendant’s…

<p>(1) Deed: Recital: Notice to purchasers: Unrecorded mortgage. (2) Withholding mortgage from record to avoid taxation. (3) Evidence: Ridings: Presumption on appeal.</p> <p>1. Where the covenant against incumbrances in a warranty deed excepts “ a certain mortgage for $900,” the grantee and subsequent purchasers tracing their title through said deed are chargeable with notice of such mortgage, and their rights are subject thereto, .although they were purchasers for value and had no actual notice •of the mortgage and it was not recorded until' after such deed was executed and delivered, where a reasonably diligent inquiry would have led them to actual knowledge of the facts.</p> <p>2. The mere fact that a mortgagor withheld a mortgage from record' until the assessor had completed his labors for that year, in order to escape taxation thereon, would not prevent him from subsequently enforcing the mortgage against purchasers of the land chargeable with notice of its existence.</p> <p>3. Objections to evidence offered in an equitable action by the successful party will be presumed, on appeal, to have been overruled, where it does not appear that the trial court made any express-ruling thereon, especially if such evidence was essential to the findings made.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>Action for damages alleged to have been caused by a breach of contract to deliver a car load of oranges. Defendants agreed in writing to sell and deliver to plaintiffs, at Milwaukee, "Wisconsin, not later than March 29, 1894, a car load of Florida russet oranges, the car not to contain more than forty boxes of oranges described as No. 128, in consideration of which plaintiffs agreed to pay defendants $1.60 per box for the fruit on board cars a,t the shipping point. ■On the 30th day of March, plaintiffs received a letter from ■defendants requesting them to send a representative to the ■city of Chicago to inspect and accept the car there, in response to which they sent Mr. Smout as such representative. The car load of fruit which they so requested plaintiffs to inspect was not submitted to the agent for examination, but a different car was, which did not contain such fruit as the contract called for. Defendants offered to make the car offered equal to that contracted for, by taking out some inferior fruit and putting in some of a better class. Agent Smout agreed to accept the car if made according to the contract. Thereafter some changes were made in the car load of fruit, but Agent Smout refused to accept it, for the reason that it did not comply with the contract. No other fruit was tendered, and none was ever delivered to plaintiffs-at the city of Milwaukee. The jury rendered a verdict in favor of plaintiffs for the sum. of $300. A motion was made-to set aside the verdict and for a.new trial, which motion was denied, and defendants appealed.</p>

<p> Master and servant: Injury by animals: Assumption of risk. </p> <p>An employee assumes the risk of injury by elks and deer kept by his employer, when he voluntarily engages to work inside of the inclosure in which they are kept.</p>

<p>Insurance against fire: Evidence: Statement volunteered by witness: Waiver of objection: Pleadings, though withdrawn, admissible: Form of special verdict: Total loss: Proof of ownership.</p> <p>1. A party cannot allege as error the admission of a statement volun, teered by his own witness on cross-examination and not responsive to any question, if there was no motion to have it stricken out.</p> <p>2. In an action on an insurance policy, allegations of the answer charging plaintiff with having purposely burned the property, although withdrawn by leave of the court before the commencement of the trial, were admissible when introduced by plaintiff to-corroborate bis evidence tending to show that defendant had denied all liability and thereby waived the furnishing of proofs of loss; and the fact that the answer was not verified did not affect their admissibility. ,</p> <p>3. A refusal to require the jury in their special verdict to find separately the value of several groups of items insured for separate amounts cannot be held error in the absence of an affirmative showing that defendant was prejudiced thereby.</p> <p>4. A building is wholly destroyed by fire, so that the loss is total, if its-identity as a building is destroyed, although some of the materials-remain in a more or less injured condition.</p> <p>5. In an action on an insurance policy, evidence that at the time of the loss plaintiff was in the possession of all the insured property,, which was described in the policy as Ms property, is sufficient evidence, prima facie, of his ownership to entitle him to recover.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee cbunty: D. H. JohhsoN, Circuit Judge.</p> <p>Tbe complaint alleges, in effect, that Muskego Lake is situated witbin tbe boundaries of Waukesba county and is a natural'body of water, and up to 1891 was about four and one-balf miles long and one and one-balf miles wide (its greatest length being from north to south), and from one to ten feet deep; that the lake was regularly surveyed and meandered by tbe United States prior to the admission of this state into the Union, and covered about 3,500 acres of land; that long prior to 1891 tbe United States patented to settlers and purchasers the lands lying in, about, adjacent to, and bordering upon that lake, together with the riparian rights, water rights, privileges, and easements incident to, in connection with, and adjacent to said lake; that the lake, at all times prior to the acts complained of, abounded in fish and game in great quantities; that it was navigable for sail, steam, and row boats, and much used for business and pleasure; that upon the northerly side a large number of small creeks and living streams of water flowed into the lake, and the waters in the lake constantly moved towards the south; that at the southern end of the lake was an outlet, which emptied into Wind Lake, in Racine county; that ever since 1875 the plaintiff has been and is now the owner in fee simple and in the possession of sixty-six and one-half acres of land, described, adjacent to and upon the north side of Lake Muskego, and in contact with the waters thereof, having a natural frontage line upon that lake of about one hundred rods; that during that period he has been and now is engaged in the business of farming, stock-raising, and maintaining a club-house, lodging-house, and resort, with boats and hunting and fishing tackle, both for use and rent upon the waters of that lake; that the plaintiff had erected thereon houses, barns, stables, fences, and other improvements, situated near to and adjacent to the lake; that the lake, prior to the acts complained of, was a_ source of health, pleasure, and profit to the plaintiff and his guests and the public in general; that the plaintiff made great use of the waters of the lake, and of the riparian rights belonging to and forming a part of his premises, in connection with his farm, clubhouse, dwelling house, boarding house, etc.; that, prior to the acts complained of, his premises were worth $9,000.</p> <p>The complaint then alleges that, since the earliest settlements in the vicinity, the bottom of the lake has generally, but erroneously, been supposed to be composed of a deep layer of decayed muck or vegetable matter, which would become productive and of great value for agricultural purposes if the water could be drained therefrom; that to secure such drainage, and the title to and possession of 3,500 acres of the bed of the lake, many schemes have been at various times devised, and some work done towards carrying out the same; that, to effect such purpose, the Muskego Canal Company was incorporated by ch. 262, P. & L. Laws of 1854, with power and authority to construct and maintain a canal for the purpose of draining the waters of Muskego and Wind Lakes in the counties of Waukesha and Racine, into the Root river or its tributaries, and to connect the waters of adjoining lakes with the waters of those lakes, and to drain the same, thereby giving the incorporators the sole and exclusive right to do as therein authorized; that the power and authority so given was extended by ch. 498, P. & L. Laws of 1856, to January 1, 1858; that by ch. 198, P. &■ L. Laws of 1868, substantially the same powers, rights, privileges, and reservations as granted to the Muskego Canal Company were attempted to be given and granted to James Reynolds and others; that ch. 198, P. & L. Laws of 1868, was repealed by ch. 326, P. & L. Laws of 1869.</p> <p>It is then alleged that ch. 169, Laws of 1887, entitled “ An act to provide for the drainage and reclamation of certain lands in Racine and Waukesha counties,” went into effect April 21, 1887, and provided, in effect, that whenever fifteen or more owners of wet or overflowed lands lying adjacent to any one or more of the lakes of Wind, Muskego, and Eagle shall be of the opinion that such lands will be benefited by the system of drainage and subject to the assessment therein provided, and who shall be of the opinion that the public health and welfare will be promoted thereby, shall desire to institute proceedings for the drainage and reclamation of lands in any such part of either of said counties, either by constructing, extending, opening, enlarging, widening, straightening, or deepening watercourses, or removing natural or artificial obstructions therefrom, or by permanently lowering the ordinary level of the water in any or all of said lakes, they may apply to the circuit court, or the judge thereof, by petition, for the institution of such proceedings and for the appointment of five commissioners, etc., giving to such commissioners certain powers, and prescribing certain things to be done by them; that such proceedings were commenced by the filing of a petition and the appointment of commissioners in October, 1887; that such commissioners were appointed for the purpose of lowering the water in Muskego Lake four feet, and to widen and deepen the river between Muskego and Wind Lakes; that during 1889 and 1890 such proceedings were had by said commissioners that the plaintiff was assessed for benefits to be derived from said system of drainage, including the lands which this plaintiff was to acquire by means of draining the water in said lake from his front line, which assessment the plaintiff paid; that during said years, by the system of drainage thus adopted and carried out, the level of Muskego Lake was lowered in 1890 about four and one-half feet below the low-water mark; that the water in that lake receded from its ordinary and usual level, as maintained January 1, 1888, upward of two rods, and that the plaintiff acquired, by means thereof, under such proceedings, upward of four acres, and his line of lake frontage of his said lands was by said public proceedings changed accordingly, for all of which he was assessed and paid a valuable consideration; that the plaintiff thereupon laid out and expended large sums of money upon his said lands in order to reasonably and profitably enjoy and use the same for farming and resort purposes; that- the amount of profitable and remunerative business of the plaintiff constantly increased until the acts herein complained of; that the plaintiff paid such assessments, relying upon the action of the commissioners and others under said last-named act as being a final settlement of the question of lowering the level of Muskego Lake; that the public health and well-being of the communities adjacent to Muskego Lake did not thereafter, and never have, required that the system of drainage so adopted and carried out should be extended, enlarged, and completed, so as to drain the bed and bottom of said lake.</p> <p>The complaint then alleges that ch. .202, Laws of 1891, entitled “ An act granting to James Reynolds, his heirs and assigns, the right to complete the draining of certain swamp, wet, and overflowed lands in the counties of Waukesha and Racine and to confirm his title thereto,” went into effect April 13, 1891; that it recited certain provisions of said ch. 198, P. & L. Laws of 1868, and proceedings under said ch. 169, Laws of 1887, and contained, among others, the following recital: “ Whereas, the preservation of the public health and the well being of the communities adjacent to said lakes imperatively require that said-system of drainage should be extended, enlarged, and completed so as to effectually drain such wet and overflowed lands-; ” that twelve days after the publication of that act, and on April 25, 1891, James Reynolds and wife, of Illinois, executed and delivered to the-defendant company a certain quitclaim deed, for the nominal consideration of $299,700 in the shares of the capital stock of the defendant at their' par value, of all the lands within the meander lines and boundaries of Muskego Lake as they existed prior to January 1, 1888, and, further, by-said deed purported to grant and convey the lands within said meander lines, and the overflowed lands adjacent thereto, as also the lands within the meander lines of said Wind Lake; that said deed was recorded June 26, 1891; that-ever since said conveyance the defendant, .has claimed to hold and to have all the rights, privileges, benefits, and obligations thereby attempted to have been granted and conveyed; that in the summer of 1891 the defendant commenced the prosecution of, said work and drainage for the sole and express .purpose of draining the bed of the said lake and acquiring and possessing itself of the lands under the waters thereof; that in the prosecution of said work the defendant, from time to time, has been opening, extending, and deepening the ditches and drains in and about said lake, with the purpose and intent of withdrawing all of the water from said lake bed, and of confining the same within the ditches and canals constructed by it, so that the said lake shall be entirely destroyed; that the waters of the lake have already been lowered several feet from the level at which the same stood prior to June 26, 1891; that the same was done entirely without the consent or approval of the plaintiff; that by reason of the destruction of the plaintiff’s water rights and privileges, so unlawfully and wrongfully done and performed by the defendant, the plaintiff has suffered and is suffering great and irreparable loss and dapiage, in the sum of $6,000; that the defendant now proposes and intends a still further drain of the lake to withdraw the waters therefrom, and intends to and will, unless restrained, completely drain said lake, to the plaintiff’s great and irreparable loss and injury.</p> <p>The oompluint further alleges that the said public drainage proceedings under said last-named chapter are being subverted, from the alleged purpose to promote the public health and public weal, into a purely private and speculative purpose, and that that act is wholly unconstitutional and void, and all proceedings thereunder by the defendant are wholly unlawful; that the defendant is acting in violation and disregard of oh. 202, Laws of 1891, by its failure to give a bond as therein required; that the bed of Muskego Lake is coinposed largely of muck and vegetable matter, sand, and shells, and is full of springs, and is so soft where the water has been withdrawn that a pole can be thrust down from fifteen to thirty feet; that if the bed of the lake should be left exposed to the sun and rain, as a great bog or marsh, it would never be productive or useful for any purpose, but would be a fruitful source of disease aud malaria to all persons living in the vicinity thereof, and of great damage and injury to the property and home of the plaintiff; that he has already suffered considerable sickness in his family, and has been put to a considerable expense on account thereof, by reason of the prosecution of said work by the defendant, who is guilty of creating a great and continuing nuisance, from which the plaintiff is a direct sufferer; that the plaintiff has already suffered great loss and damage, to the amount of $10,000, for which he prays judgment, and for a perpetual injunction, and for general relief.</p> <p>To such complaint the defendant demurred on the grounds that the court had no jurisdiction, that there is a defect of parties plaintiff, that several causes of action have been improperly united, and that it does not state facts sufficient to constitute a cause of action. The court sustained the demurrer upon the last ground stated, but overruled the same as to the other grounds mentioned. From that part of the order sustaining the demurrer the plaintiff appeals.</p> <p>They argued, among other things, that the state cannot deprive a riparian owner of his rights as such except by a constitutional exercise of the power to appropriate property for public use. Bowman's Devisees v. Wathen, 2 McLean, 376, 382, 383. These rights are not a mere easement or appurtenance, but are inseparably connected with the soil itself. Gould, Waters, § 204; 2 Washb. Real Prop. (5th ed.), 867; Kauhauna W. P. Go.v. G. B. óa M. O. Co. 75 Wis. 390. Riparian rights are incident to the soil adjacent to the water, not to the soil under the water; consequently where the proprietors own only to the water’s edge they have the same right in this respect as where they own to the thread of the stream. Gould, Waters, | 246; 2 Hilliard, Real Prop. (3d ed.), 100; Chapman v. 0. dM.B.B. Co. 33 Wis. 629; Yates v. Milwaukee, 10 Wall. 504; III. Oent. B. Oo. v. Illinois, 146 U. S. 445; Black Biver Imp. Go. v. La Orosse B. ds T. Oo. 54 Wis. 682. The plaintiff’s riparian rights include the exclusive right of access to and from the lake in front of his land; of building there piers and wharves in aid of navigation, not interfering with the public use, and also the right to enjoy for purposes of gain or pleasure all the facilities which the location of his land with reference to the lake affords; to have the waters flow by his land without artificial obstruction. Delaplaine v. G. ds If. W. B. Oo. 42 Wis. 214; Diedrich v. 21. W. Tf. B. Oo. id. 262; Yates v. Milwaukee, 10 Wall. 497; Saunders v. 2f. Y. O.daR. B. B. Oo. 23 N. Y. Supp. 932. The plaintiff’s property extended to the actual water line, and if the actual water line changed, the line of the plaintiff’s land changed with it, and he acquired title to gradual additions to the land made either by alluvion or by the gradual recession of the waters. Jones v. Johnston, 18 How. 156; Chicago (& 2L.W. B. Oo. v. Oroh, 85 Wis. 641; Shively v. Bowlby, 152 U. S. 35. The legislature cannot deprive the riparian owner of this land derived by accretion or reliction, after it is once acquired. Warren v. Chambers, 25 Ark. 120; Murry v. Sermon, 1 Hawks, 57; Saunders v. If. Y. O. ds II. B. B. Oo. 23 N. Y. Supp. 927; Municipality Ifo. % v. Orleans Cotton Press, 18 La. 122, 213, 214. The state has no proprietary interest in submerged lands, but holds them as sovereign, in trust for the public, and cannot abdicate this trust, and no grant of such land for purely private purposes can operate to impair or defeat the previously acquired rights of the riparian owner. McLennan v. Prentice, 85 Wis. 444, 445; III. Oent. B. Oo. v. Illinois, 146 U. S. 452-455; Par dim, v. Jordam., 140 id. 371, and cases cited on 393 et seq.; Oobb v. Davenport 32 N. J. Law, 369; Bradshaw v. Duluth Imp. M. Oo. 52 Minn. 59; Stockton v. B. ds If. Y. B. Oo. 32 Fed. Rep. 9, 19, 20. The beds of waters in which the titles of riparian owners do not extend to the center, belong to the several states in which they are located, as sovereigns. Barney v. Keolault,3^ U. S. 324, 338; Bollard’s Lessee v. Hagan, 3 How. 212, 230; Knight v. TJ. 8. Land Asso. 142 U. S. 183; Ben v. Jersey Go. 15 How. 426, 432; St. Glair Go. v. Lovingston, 23 Wall. 68; Shively v.Bowlby, 152 U. S. 1; Goodtitle v. Kidbe, 9 How. 471; 3 Kent, Comm. 427; J. S. Keator L. Go. v. St. Oroix B. Gorp. 72 Wis. 89; Gil-man v. Philadelphia, 3 Wall. 726. This title is a title by sovereignty, not a proprietary title. Martin v. Waddell, 16 Pet. 367, 408, 414; Saunders v. H. Y. 0. <& H. R. R. Go. 23 N. Y. Supp. 932. In grants by the United States of lands bounded on waters the boundaries will be construed to be at the water’s edge, or elsewhere, according to the law of the state in which such lands lie. Hardvn v. Jordan, 140 U. S. 371; Paelaer v. Bird, 137 id. 661, 669, 670; St. Louis v. Rutz, 138 id'. 226, 242; Barney v. KeoJcuh, 94 id. 324, 338; 111. Gent. R. Go. v. Lllmois, 146 id. 435. The drainage authorized by ch. 202, Laws of 1891, is for a private purpose. The taking of lands is for a private use. Lewis, Em. Dom. §§ 163, 165. The question whether the use is a public one is a judicial one to be determined by the courts. Ln re Mia-gara Falls (& W. R. Go. 108 N. Y. 375; Citizens1 W. W. Co. v. Pcurry, 59 Hun, 202; 8. O. 128 N. Y. 669.</p> <p>contended, inter alia, that at the time the drainage proceedings were instituted under ch. 169, Laws of 1887, the plaintiff, as a riparian owner, took only to the natural shore of the lake. Belaplaine v. O. & H. W. R. Co. 42 Wis. 214; Boorman v. Sunnuohs, id. 233; Biedrioh v. U. W. U. R. Co. id. 248. The lowering of the lake pursuant to that statute was accomplished through the artificial process of draining. The recession of the water was not gradual, nor imperceptible, nor natural. As a consequence the plaintiff never acquired title to the strip of the lake bed uncovered by the drainage work. Halsey v. McCormick, 18 N. T. 147; Boorman v. Sunnuohs, 42 "Wis. 233. That strip is owned either by the state, the United States, or the defendant, and plaintiff cannot reach the waters of the lake without becoming a trespasser thereon. He is no longer a riparian owner, but simply an adjoining owner to the owner of the strip that lies between his lands and the lake. The state had title to the bed of the lake within the natural shores thereof. The United States never had title to the beds of inland lakes within the territory lying northwest of the Ohio River. Pollard’s Lessee v. Hagan, 3 How. 212; Martin v. Waddell, 16 Pet. 410; Goodtiile v. Eibbe, 9 How. 478; Doe v. Beebe, 13 id. 26; Pennsylvania v. Wheeling & B. B. Go. id. 584; Mobile v. Eslava, 16 Pet. 234; Gerhard v. Seekonk P. B. Oomm’rs, 15 R. I. 334; Ben v. Jersey Go. 15 How. 426; MeGready v. Virginia:, 94 U. S. 391; Eisenbaoh v. Hatfield, 12 L. R. A. 632; Wharton, Am. Law, § 192; Woolsey, Internat. Law, § 54; Holtzendorf, Enoy. 1222; Waukegan. Breakwater, 6 .Opin. Att’y Gen. 172; Hoboken v. Pa. B. Go. 124 U. S. 656; Stevens v. P. (& H. It. Go. 34 N. J. Law, 532. When the United States has disposed of lands bordering on a meandered lake by patent without reservation or restriction, it has nothing left to convey, and any patent thereafter issued for land forming the bed or former bed of the lake is void and inoperative. Lamprey v. State, 52 Minn. 181; Benwick, S. c& G. v. D. <& H.W. B. Go. 49 Iowa, 664; Case v. Toftus, 39 Fed. Rep. 730; Huse v. Glover, 119 U. S. 543. The question whether the land forming the beds of lakes belongs to the state or to the owners of riparian lands is a question to be determined entirely by the laws of the state in which the lands are located. Hardin v. Jordan, 140 U. S. 371; Mitchell v. Smote, id. 406; Lamprey v. State, 52 Minn. 192. Even if, so long as a lake exists, the state has no right to dispose of the soil under the water or deprive the riparian owner of his rights to use the waters for navigation, fishing, hunting, and the like, yet, when it ceases to be a lake and becomes a morass, or rice swamp, or dry land, by an artificial or other sudden cause which does not give the title to the soil to the riparian proprietor under the doctrine of either accretion or ■retrocession, then the title to the lake bed is and must be in "the state, and it has the right to dispose of the same, by the ■very nature of things. Lake Superior L. Go. v. Emerson, 38 Minn. 406, 8 Am. St. Rep. 679; Noyes v. Oollins, 92 Iowa, 566; Sohlosser v. Grookshank, 65 N. ~W. Rep. 344; Vattel, Law of Nations,'§§ 274, 276, ch. xxii. In New York the state sells the land under the water in its lakes and gives title. People ■ex rel. Burnham v. Jones, 112 N. Y. 597; Kingslancl v. New York, 110 id. 584; People ex rel. Loomis v. Gandí Appraisers, ■33 id. 461; Towle v. Bemsen, 70 id. 308, 322. The waters in a navigable river or other navigable body of water are so ■far the property of the state that the state may control them for public purposes, in their flow or otherwise, without making any compensation to the riparian owners. Blaek Biver Lmp. Go. v. La Orosse B. (& T. Co. 54 Wis. 659; Gandí Appraisers v. People, 17 Wend. 571; People ex rel. Loomis ■v. Ganal Appraisers, 33 N. Y. 500. And if the public good and public health require that the lake should be thoroughly ■drained, then the state can do so without claim for damages ■by or on behalf of any riparian owner. Cohn v. Wausau B. ■Go. 47 Wis. 314; Stevens Point B. Go. v. Beilly, 46 id. 243; MeKeen v. Pelawa/re P. G. Go. 49 Pa. St. 424. What the •state could do by itself it certainly has the right to employ the defendant to do for it, and to give such compensation, including the lands, as the legislature in its wisdom may see fit. Ch. 202, Laws of 1891, was in effect the making of a ■contract with an individual by the state for the abatement of a 'public nuisance maintained upon the land of the state, .and if any incidental injury was done to the plaintiff or any .•adjacent owner from the doing of the work it was not a taking of his property for public use, and no liability was-created. Alexander v. Milwaukee, 16 Wis. 247.</p>

<p> Bank check: Presentation for payment: Reasonable time. </p> <p>The payee of a bank check must present it for payment within a rear sonable time in order to preserve his right of recourse to the-drawer in case of its nonpayment; and where such payee resides- and receives the check at the place where the bank is located,, such reasonable time does not extend beyond the close of banking hours on the day succeeding the receipt of the check, excluding Sundays and holidays. ■</p>

<p>Appeal from an order of the superior court of Milwaukee county: E. N. AustiN, Judge..</p> <p>This was an action brought by the plaintiff, as receiver of the Minneapolis Mutual Fire Insurance Company, a corporation organized under certain general laws of the state of Minnesota, against the defendant, a corporation of this state, to recover the amount of six certain premium notes given by the defendant to the said Minneapolis Mutual Eire Insurance Company for its six policies of insurance issued to the defendant while it was transacting, and duly licensed as a foreign insurance company to transact, the business of insurance in this state. The complaint alleged, among other things, that the defendant never surrendered said policies of insurance, or either of them, but that they remained in full force and effect up to the 20th day of December, 1890, when said insurance company became and was declared insolvent, and one Charles Shandrew was appointed and qualified as receiver of said company for the purpose of winding up its affairs, in an action for that purpose commenced in the district court for the county of Hennepin and state of Minnesota by one Benjamin F. Nelson, in which action an injunctional order had been granted, restraining said insurance company from further transacting business, and sequestering its assets; that judgment was rendered in that action January 24,1891, adjudging said insurance company wholly insolvent and unable to pay its debts; that on the-day of February, 1891, the plaintiff was appointed and qualified as receiver of said insurance company, in place of said Shandrew, deceased, and afterwards filed his petition in said district court, asking that an assessment of 100 per cent, be made upon the premium notes of said company, in order to pay its debts and expenses of receivership; and that an order was made thereon by said court, February 3, 1891, levying an assessment of 100 per cent, on said notes accordingly, subject to credit for any previous special assessments made and paid thereon, and providing for giving notice of sucb assessment to the makers of said notes, etc., and that, in case of failure of any maker of any such note to make payment within thirty days, the said receiver, the plaintiff, might sne for and recover the whole amount of said assessment against him, less any credit he might be entitled to thereon. It Avas-alleged that due notice was given to the defendant, and demand of payment made, within twenty-five days after the-date of said order of February 3, 1891; that the action was-commenced June 12, 1895, and that more' than thirty days had before then elapsed since said demand, and the defendant had refused to make payment. Judgment Avas demanded for the amount of the notes, less certain credits, with interest from February 13, 1894.</p> <p>The defendant demurred to the complaint on the following grounds, among others: That the plaintiff.had not legal capacity to sue; and that the action had not been commenced within the time limited by law, under and by virtue of ch. 293 of the laws of this state for 1893, because it appeared upon the face of the complaint that the insurance company had been incorporated outside of this state, that it had been declared insolvent January 24, 1891, that a receiver had been appointed December 18, 1890, by the Minnesota court, and that this action was not commenced until June 12,1895, and the right of action was therefore barred by said chapter. The circuit court made an order sustaining the demurrer, from which the plaintiff appealed.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: R. N. AustiN, Judge.</p> <p>Defendant Matt H. Bauer, on the 1st day of May, 1893, made his promissory note for $1,000, payable 100 days after ■date, to the order of defendant Thomas Gorman, and caused the same to be indorsed by the J. Obermann Brewing Company, and thereafter, for value, delivered the same to Gor-man. Gorman thereafter indorsed the note to H. J. Killilea, •and he indorsed the same to the Plankinton Bank. Thereafter, and before the note became due, the brewing company made an assignment for the benefit of creditors. At the maturity of the note it was duly protested, so as to fix the liability of the indorsers. Thereafter the bank filed a claim for the amount due on the note in the assignment proceedings of the brewing company. Thereafter, and when the assignee had sufficient assets in his hands to pay the note, an agreement was made between plaintiff, as assignee of the bank for the benefit of creditors, the brewing company, and its assignee, without the knowledge of Gormcm, whereby plaintiff, by a written instrument under seal, released the ¡brewing company and its assignee from such claim. Evidence was offered on the trial, and received against defendant Gorman's objection, to explain such instrument and show that it was not a release in fact of the brewing company, but a mere consent to a reassignment of the property held by the assignee, so that the company might resume business and ultimately pay the note. The evidence tended to show that the arrangement was made with a view of giving the brewing company an indefinite extension' of time for the payment of the note, and that the real consideration for the release was the reassignment of the property by the assignee to the brewing company, and its resumption of business.</p> <p>At the close of the evidence plaintiff moved the court to ■direct a verdict in his favor, and defendant Gormcm made a like motion to direct a verdict in his favor. The court granted plaintiff’s motion and denied defendant’s motion. ■Judgment was entered in favor of plaintiff, and defendant Gorman appealed.</p>

<p> Voluntary assignment: Payment of taxes: Mortgaged property: Discharge of assignor: Taxes are not “debts.” </p> <p>1. Under sec. 1700, S. & B. Ann. Stats., an assignee for the benefit of creditors who had sufficient funds in his hands should, upon proper application, have been directed to pay the taxes assessed upon the property assigned, although a large part of that property had been taken and sold under a chattel mortgage and, the proceeds of such sale being insufficient to satisfy the claims of the mortgagees, the assignee had received nothing therefrom.</p> <p>2. Taxes upon the property of the assignor are not “debts” from which he may be discharged under ch. 385, Laws of 1889 (S. & B. Ann. Stats, secs. 1702d-1702ii).</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: R. R. Austin, Judge.</p> <p>This is an action to foreclose a mechanic’s lien upon certain lands for grading. The grading was done by the plaintiff under a written contract executed by him and by the defendants AFeeves, by which the plaintiff agreed to grade a certain subdivision of land owned by said defendants, under direction of ah engineer, and said defendants agreed to pay therefor a certain sum per cubic yard, eighty-five per cent, of which was to be paid on monthly estimates, and the balance when the whole work was completed. Said contract also contained the following provision: “ It is further agreed that the said party of the first part hereby waives all right of lien upon the premises which he may have by virtue of the statutes of the state of Wisconsin, and that all persons employed by him to work upon said premises shall sign, execute, and deliver a release and waiver of all liens which they may be entitled to under the statutes of this state, and ■that the waiver of liens hereto attached, and made a part hereof, shall be signed and executed by all persons employed by the party of the first part under this contract; the waiver of such liens being the essence of this contract and a part of the consideration for entering into the same by the parties of the second part.”</p> <p>The defendants did not appear upon the trial. It appeared by the evidence that the balance due the plaintiff for grading was $1,617.10, and the court found that the payment of' the eighty-five per cent, was the only consideration for the plaintiff’s agreement to waive his lien, and that, such payment not having been made, the plaintiff was still entitled to a lien; and judgment was ordered and rendered against the defendants Beeves, personally, for the amount due, and the same was adjudged a lien upon the real estate graded. From this judgment the defendants appealed.</p>

0. Ludwig, Judge. This is an action to recover damages for the loss of future profits by reason of the alleged breach by the defendant of a contract it had made with the plaintiffs for grading the streets, alleys, and blocks of addition No. 2 to North Milwaukee; the defendant having refused to allow the plaintiffs to fully perform, their contract.

EeeoR to review a judgment of the police court of the city of Milwaukee: Neele B. Neelen, Judge. Action brought in the police court of the city of Milwaukee to recover a penalty for violation of a city ordinance. The defendants were acquitted by the verdict of a jury. The plaintiff moved the court to set aside the verdict, which was denied.

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>Garnishment. The plaintiff corporation sued the firm of H. & J. C. Hyman on the 24th day of September, 1891, and garnished the appellants, who answered, denying liability. The complaint in the principal action alleged an indebtedness accruing prior to August 31,1891, and judgment was rendered against the Hymans in that action by default for $6,383.81, March 16,1893. Thereafter this garnishee action was tried before a jury, and a special verdict rendered, which was set aside and a new trial granted. This order was affirmed by this court. J. <& H. Olasgens Oo. v. Silber, 87 "Wis. 357.</p> <p>A second trial was afterwards had before the court without a jury. It appeared upon this trial that on June 26, 1890, Henry Hyman, who was then a sole trader, doing business under the name of the Star Knitting Works, gave a note for $4,000, payable one day after date, to Louis Silber, -who was his son-in-law; that on the 25th day of June, 1890, he gave a similar note for $6,000 to Marcus Silber; that on April 16,1891, Henry Hyman took his son, Joseph C. Hyman, into equal partnership with him in the knitting business, and they continued the business under the name of the Star Knitting Mills; that soon after the formation of this partnership J. C. Hyman wrote his name on the back of each of said notes at the request of the Silbers; that on September 19, 1891, the Hymans, being insolvent, assigned in writing all the accounts of the Star Knitting Mills or of the firm of H. & J. C. Hyman to Marcus Silber and Louis Silber, the face value of which accounts was about $10,500, and the amount realized by the Silbers therefrom was $8,500; that the entire property of the firm was seized upon executions issued upon judgments on cognovit upon the day following the transfer of the accounts. It was claimed by the plaintiff that this transfer was without consideration and fraudulent and void as to creditors.</p> <p>In addition to the facts above stated, the court found, in effect, that the notes given by Henry Hyman to the Silbers were■ claimed to hme been given for money loaned at the date of the notes; that Joseph C. Hyman put some property into the business when he became a partner; that when the Silr bers learned that the copartnership was to be formed, they both demanded the money on their notes, and it was agreed that if J. C. Hyman would indorse the notes they would let them run, whereupon J. O. Hyman wrote his name on the back of each note; that at the time of the assignment of the accounts the firm of H. & J. 0. Hyman was not indebted to the Sillers in any sum upon the notes signed by Henry, and indorsed by J. 0. Hyman after due, but that the indebtedness upon said notes, if any, was “ the indebtedness, of Henry Hyman, with the possible individual liability of J. 0. Hyman by reason of his indorsement;” that at the time of the service of the garnishee summons the Sillers had in their possession $8,500 of the property of the firm of H. & J". 0. Hyman, which was subject to garnishment; that at the time of the assignment of the accounts to the Sillers the firm of H. & J. 0. Hyman was indebted to various creditors in a sum exceeding $35,000.</p> <p>As conclusions of law the court found: “First. That the indebtedness, if any, arising upon the notes signed by Henry Hyman respectively on the 25th day of June, 1890, and 26th day of June, 1890, one to Marcus Siller and the other to Louis Siller, is the individual indebtedness of Henry Hyman; that no assumption of that indebtedness was ever made by the firm of H. & J. 0. Hyman. Second. That at the time of the service of the garnishee processes upon Marcus Siller and Louis Siller they were indebted to the defendants Henry Hyman and J. 0. Hyman, in the sum of $8,500. Third. That the copartnership of H: & J. 0. Hyman was insolvent on the 19th and 21st days of September, 1891; that the assignments of the copartnership property of H. & J. 0. Hyman, dated September 19,1891, to the garnishees, Marcus Siller and Louis Siller, of all the outstanding accounts belonging to said firm, for the purpose of paying individual liabilities of Henry Hyman, are fraudulent and void as to the plaintiff. Fourth. That Marcus Siller and Louis Siller are liable to the plaintiff as garnishees of the defendants Henry Hyman and J. 0. Hyman in the sum of $6,383.81, together with interest thereon from the 16th day of March, 1893, and together with costs; that the plaintiff is entitled to judgment against said garnishees, Marcus and Louis Silber, accordingly.”</p> <p>Judgment for the plaintiff was rendered upon these findings, and the garnishees have appealed.</p> <p>They contended, inter alia, that the judgment against the garnishees goes on the ground that they were not firm creditors, while plaintiff was a firm creditor, and that consequently plaintiff was entitled to priority and the attempt to secure the garnishees was void as a fraud on the firm creditors. But the fact that plaintiff was a firm creditor was not shown. The judgment against the principal defendants was not evidence of that fact, but only of the fact of its rendition and of the relation of debtor and creditor between plaintiff and the principal defendants at the time of its rendition. There is absolutely no evidence that plaintiff was a firm creditor, except the recitals in the complaint in the principal action; but these were not recitals essential to the recovery in that action, nor upon which issue could be taken, because any joint or joint and several indebtedness would entitle plaintiff to recover. The defense which the garnishees can make under sec. 2765, E. S., goes only to the question whether or not the principal defendant is indebted to the plaintiff at the time the suit is brought. Bu/rton v. Platter, 53 Fed. Hep. 901; Bruggerman v. Hoerr, 7 Minn. 337; Hartman v. Weiland, 36 id. 223; Bloom v. Moy, 43 id. 397; Springer v. Bigford, 55 Ill. App. 199; Sweet v. Deem, 43 id. 650; Snodgrass v. Branch Bank, 25 Ala. 161. The court was in error in holding that the parties were limited to the written contract of indorsement on the notes, and in excluding from consideration all other evidence showing what the terms of the contract of copartnership were and what the intentions of the parties were. Gar-son v. Beyers, 67 Iowa, 6.06; Walsh v. Mayers, 111 U. S. 31; Berkshire Woolen Go. v. Juillard, 75 E. T. 535; Trowbridge v. Oushman, 24 Pick. 310; In re Waldron,,,98 E. Y. 671; SeekeTl v. Fleteher, 53 Iowa, 330; Agawam Bank, v. Morris, 4 Cush. 99; Thayer v. Smith, 116 Mass. 363; Booth v. Farmers c& M. Mat. Bank, 74 E. Y. 228; Smith v. Felton, 43 id. 419. The parol evidence offered did not contradict the in-dorsement or vary its terms. It merely showed that the new firm was bound by the indorsement by J. C. Hyman, not merely J. C. Hyman alone. Weston v. MeMillan, 42 Wis. 567, 570; Frey no. Va/nderhoof,Vó id. 397; Ballston Spa Bank v. Marine Bank, 16 id. 120; Hahn v. Doolittle, 18 id. 196; GlAfford no. Baessma/n, 41 id. 597; Severson v. Porter, 73 id. 76; ILcejUnger v. Wells, 47 id. 628. The oral assumption of the existing debts was sufficient. Hage v. Campbell, 78 Wis. 572; Miller v. Stone, 69 id. 617; Wilson v. Dozier, ■ 58 Ga. 602; McGill v. Dowdle, G. c& Go. 33 Ark. 311; Marsh v. Gold, 2 Pick. 285; Jones v. Booth, 10 Yt. 268; Greenleaf v. Burbank, 13 E. H. 454; Arnold v. Kiehols, 64 E. Y. 117. An incoming partner may bind himself to become liable for the firm debts in consideration of the property acquired by the purchase, and such agreement is not within the statute of frauds. The creditors of a firm may recover from the incoming partner on his contract to pay the firm liabilities, though they are not parties thereto. Poole, G. <& Go. v. Hintrager, 60 Iowa, 180; Johnson v. Knapp, 36 id. 616; Phillips v. Van SehaAok, 37 id. 229; Morrison db Go. v. Hogue, 49 id. 574.</p> <p>to the point that the court properly found that there was no assumption by the partnership of the debts to the Silbers, cited Willis v. Brem-ner, 60 Wis. 622; Gribb v. Morse, 77 id. 322; Molinden v. Wentworth, 51 id. 181; Vernon v. Upson, 60 id. 418; Keith v. Armstrong, 65 id. 228; Viles v. Bangs, 86 id. 131; Cotz-hausen v. Judd, 43 id. 213; Davis .v. Birchard, 53 id. 492; Blackwell v. Ra/nkm, 7 N. J. Eq. 152; Idilliker v. Francisco, 65 Mo. 598; Cox v. Platt, 19 How. Pr. 121; Wilson v. Robertson, 21 N. T. 588; Lester v. Abbott, 28 How. Pr. 488; Menagh v. Whit/well, 52 N. T. 146; Hiñe v. Bowe, 114 id. 358; Second Nat. Bank v. Burt, 93 id. 245.</p>

<p> IAen of subcontractor: Notice: Foreclosure: Parties: Husband and wife. </p> <p>1. Under sec. 3315, S. & B. Ann. Stats,, giving a lien to a subcontractor if he gives the required notice setting forth, among other things, “that he claims the lien given by this chapter,” a notice stating that he claims the lien “ under and by virtue of the laws of Wisconsin in such case made and provided,” is sufficient.</p> <p>2. The requirement that said notice shall contain “a statement of the labor performed and materials furnished ” is substantially complied with by a notice stating that the lien is claimed for “ work, labor, and services performed upon said building, and sash, doors, blinds, mouldings, and other building materials sold and delivered to be used, and which were actually used, in and upon said building and premises, under said agreement with said principal contractors, . . . for the agreed price of,” etc.</p> <p>3. The wife of the owner of land upon which a mechanic’s lien is claimed is a proper party to an action to enforce such lien, even though she was not a party to the building contract under which the lien is claimed and the premises are not a homestead, and even though her inchoate right of dower cannot be divested in such action.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: B. N. AustiN,' Judge.</p> <p>This action was brought to recover damages which the plaintiff, a minor of the age of seventeen years, had sustained, as alleged, by reason of the negligence of the defendant, while he was employed in running a certain machine or cutting press used in its business. It was alleged, and the evidence tended to show, that the machine contained a double set of knives, three on top and three below, and was operated by steam power, by means of a belt attached to other gearing in the shop, and was used for cutting stovepipe elbows, and that the knives were so attached as to cut four pieces at each stroke. The plaintiff, in operating the machine, was obliged to hold a piece of sheet iron in his hands, and shove it in and adjust it between the knives; and in doing so it became necessary for him to gauge the sheet in such a way that his fingers, each time, came within an inch of the knives, and he had to hold it there* against the gauges, and then bring his foot down upon the treadle, and this caused the knives to cut the sheet of iron. It was alleged that by reason of youth and inexperience the plaintiff did ■not comprebend and appreciate the danger incident to the employment, as the defendant knew, and that the defendant failed and neglected to give him proper instructions in that 'respect; that, while operating said machine, it became out ■of .order, so that the pieces of iron cut would accumulate between the knives to the number of twenty-five or thirty, ■adhering together, and while he was attempting to adjust ■a piece of sheet iron so as to cut it properly, the knives not being in motion, about thirty pieces of iron fell down from where they had so adhered, upon the treadle' of the machine, ■and caused a stroke of the knives by which they cut off the ■greater part of three fingers of the plaintiff’s right hand; that at the time said knives were very dull and so imperfectly set as to cause such pieces of iron to so accumulate and adhere together; that said machine was otherwise out •of order, causing said pieces of iron to clog, instead of dropping one by one from the machine, and in that it did not have a guard before said knives, or a partition to prevent ■said pieces from falling upon the treadle; that such guard and partition could have been placed in the machine without interfering with its operation or usefulness, and at a slight cost; and that the machine was not a reasonably safe appliance at the time of the injury, as the defendant well knew. It was alleged that the failure to instruct the plaintiff how to run or operate the machine, and the said defects in the machine, were the proximate cause of the plaintiff’s injury.</p> <p>The defendant put in issue the allegations of the complaint, and charged that negligence on the part of the plaintiff, in the manner in which he operated the machine and used his hands, proximately caused or contributed to his injury.</p> <p>At the trial before a jury, after evidence had been given tending to support the contentions of the respective parties, a special verdict was rendered as follows: (1, 2) The plaintiff was injured while engaged in operating a machine in the defendant’s factory by direction of the foreman having control of the work on said machine. (3) He consented to enter upon said work. (4) There was a defect or want of repair in the machine at the time. (5) The defendant or its agent did not give the plaintiff such general instructions and caution as would enable him, by the use of his intelligence, to comprehend the danger which he might incur in his work. There were several other findings, and an assessment of damages of $2,000; but there was no finding that the plaintiff’s injury was caused by any defect or want of repair in the machine, nor by reason of the failure of the defendant or its agent to give the plaintiff proper instructions or caution as to the method or manner of doing his work or the 'danger incident to his employment in operating the machine,, or that it was caused by the negligence of the defendant, either pi'oximate or remote, in any other respect. The court denied the defendant’s motion to set aside the special verdict, and judgment was entered thereon for damages and costs, from which the defendant appealed.</p>

<p> Appealable orders: Attachment: Undertaking, by whom to be executed: Sale of perishable property. </p> <p>1. An order refusing to set aside the proceedings under a writ of attachment is an order continuing a provisional remedy, and is therefore appealable, under subd. 3, sec. 3069, R. S., as amended by ch. 312, Laws of 1895.</p> <p>2. Under sec. 2732, R. S., providing that “before the writ of attachment shall be executed a written undertaking on the part of the plaintiff, with sufficient surety, shall be delivered to the officer,” the plaintiff is not a necessary party to the instrument, but it is sufficient if the undertaking is signed by sufficient surety and is delivered to the officer as and for the undertaking required by the statute.</p> <p>3. An order for the sale of the attached property, made under sec. 2740, R. S., upon affidavits showing that it was likely to perish or depreciate in value, will not be set aside because of the falsity of such affidavits, upon a motion made long after defendant must have known of it and after the proceedings under it were practically concluded.</p>

<p> Criminal law and practice: Murder: Verdict: Failure to specify degree. </p> <p>Under an information charging generally wilful and felonious murder with malice aforethought, a verdict of “guilty in the manner and form as charged in the information,” but not specifying the degree of the crime, does not authorize the court to pronounce judgment.</p>

<p>ApplioatioN for leave to file an information in the nature of quo warranto.</p> <p>This was an application bv the Attorney General, upon an order requiring the defendant company to show cause why an order should not be made granting leave to him to file an information in the nature of quo warremto against said company, and for process against it, etc. The proposed information sets out, in substance, the incorporation of the •company by ch. 326, P. & L. Laws of 1870, as amended by ch. 2 and ch. 328, P. & L. Laws of 1871; that it accepted its charter in February, 1871, and in that year located that portion of the line of its road authorized by its charter extending from Superior, Wisconsin, to the Minnesota state line, acquired some right of way, and entered into a contract for the construction of said road with contractors, who commenced the work of construction, and prior to May, 1872, did certain work specified, when the construction of said road was stopped and abandoned, and not afterwards prosecuted, and no part of its road had been completed or operated; that August 31, 1880, the company held a meeting, a-t which a full board of directors was elected, who chose a president and other officers; that no other meeting of stockholders was held until October 16,1895, when a full board of directors was elected, who chose a president and other officers of the company; that it had suspended its-lawful and ordinary business for one whole year and over, to wit, for fifteen years, and had thereby surrendered the rights, privileges, and franchises granted to it by the said charter and the acts amendatory thereof, and that it ought to-be, and should by right be, dissolved; that, notwithstanding the abandonment and surrender of said franchises, the said company had, through its stockholders, elected a board of directors as aforesaid, and they a president and other officers, and had usurped, and did still usurp, the rights, privileges, and franchises aforesaid, and gave out and threatened that, in the exercise thereof, it would operate railroads within the state, and issue stocks and bonds thereon, and carry on the business of a railroad corporation as fully to all intents and purposes as if the said abandonment and surrender had not occurred, and as if no ground for judicial forfeiture existed, to the great damage and prejudice of the people, etc.</p> <p>The said company filed an affidavit of Hiram Hayes, its secretary, by way of showing cause, to the effect that he was one of the corporators named in the original charter; that on the 4th of February, 1811, at a meeting of the cor-porators, by resolution, a stock subscription book was opened,, and a committee appointed to receive subscriptions, and stock was subscribed by ten different persons, he (the said Hayes) being one of the subscribers; that ten per cent, of the stock was called and paid, and directors and officers were elected; that numerous meetings were afterwards held, a full set of by-laws and a corporate seal adopted, and various other business transacted; that the company, in the year 1811, located that portion of the line of its road authorized by its charter extending from Superior to the state line of Minnesota, and acquired by deeds of conveyance a right of way for the same; that in 1871 the company entered into a contract for the construction of its road; that the contractors did considerable grading thereon, and provided ties and other timber for use in construction, but they stopped work thereon in May, 1S72; that on the 31st of August, 1880,. there was an annual meeting of the stockholders, when nine directors were elected to hold until their successors were elected and qualified, and they elected a president, vice president, secretary, and treasurer, but no other election of directors was held until October 16, 1895, when, additional stock having been subscribed and paid in, a full board of directors was duly elected; that deponent, from the organization of the company until the election of said board of directors and officers, in 1895, was continuously the secretary of the company, having in his custody the books, records, and corporate seal, and its office, from its organization, had been in the office of the said secretary in the city of Superior; that the company, while it transacted no business, in the way of constructing and operating a railroad between 1880 and October 16, 1895, was not insolvent, and owed no. indebtedness whatever, and there was due it upon its original stock subscriptions ninety per cent., which had since been called and paid in; that it was not the intention of the defendant company to surrender its franchises or forfeit the same prior to the 16th of October, 1895; that upon the new stock subscribed in October, 1895, the par or face value was called by the board of directors and paid in to the treasurer of the company; and it was insisted that the legislature, at its session in 1895, had waived the ground of forfeiture alleged, and all grounds of forfeiture then existing against, the company, by the enactment of ch. 244, Laws of 1895,. amending said charter and said several acts amendatory thereof. In an unverified statement, by way of showing' cause, signed by the attorneys of the company, it was insisted, among other things; that the company had accepted the amendments to its charter by the act of 1895, and that it was exercising, and intended to exercise, the privileges, Tights, and franchises conferred upon it by its charter and "the amendatory act of 1895, and to acquire, by purchase, •construction, and otherwise, the railroads and general routes • •designated in the act of 1895, and to operate the same within and without the state, and to issue its stock and bonds thereon, as authorized by said act.</p> <p>By the original charter, the company was authorized to •survey, locate, and from time to time alter, change, and relocate so as not to materially change the route, and to ■construct, maintain, and operate a railroad, with one or more tracks or lines, from some convenient point on the west shore of the Bay of Superior, or on the south shore ■of the Bay of St. Louis, in the county of Douglas, running thence southerly, through the counties of Douglas, Burnett, Polk, St. Oroix, and Pierce, via St. Croix Falls and Hudson, to Prescott, with a branch or extension running westerly from the above-designated place of beginning to such point on the Minnesota boundary, north of the Ne-madji river, as might be deemed desirable by the directors ■of said railroad company. The company was authorized to Lave a capital stock of $5,000,000, and to connect its railroad with other railroads, and operate the same in such •manner as should be agreed on; and any company having a railroad'built or partly built, running in the direction of the line of railroad so authorized to be built and operated, was authorized to make sale or lease thereof, with its franchises, ■etc., to the said Superior & St. Oroix Railroad.</p> <p>By the act of 1895, the company is authorized to extend its road westward from the Minnesota state line, upon such route or routes as its board shall adopt, “ to such point or points on the Pacific coast as such board shall select ; and from said point or points in Douglas county easterly upon -such route or routes as said board shall adopt, to or near Ashland, in the county of Ashland, in the state of Wisconsin, and thence by such route or routes arid to such point or points in the state of Michigan as said board shall select; also from such point or points in Douglas County, upon such ■route or routes as said board shall adopt, through the counties of Douglas, Burnett, Polk, St. Croix and Pierce, or any •of them, to Prescott on the Mississippi river, with a branch from some point in one of said counties, to be selected by 'the board of directors, to St. Paul and Minneapolis, Minnesota, or to either of said places; also from said point or points in said Douglas county, or from some point to he selected by such board on any railroad or railroads which the said company is or hereafter may be authorized to construct or otherwise acquire, upon such route or routes as such board shall adopt, through the states of Wisconsin and • Illinois, to or into the city of Chicago in the county of Codk in said last named state. And the said company is further •authorized and empowered to survey, locate, construct, and to acquire, by purchase or otherwise, and to equip, maintain ■and operate, and perpetually have, use, possess and enjoy branch lines of railroad from its main line or lines in and into or through any state or territory of the United States, ■or extending into or lying within the dominion of Canada, or any portion or province thereof.” Laws of 1895, ch. 244, sec. I. And it was authorized to exercise the power of ■eminent domain for the acquisition of lands, right of way, •etc., to the extent and in the manner provided by B. S., secs. 1845-1856. To accomplish these purposes, it is authorized to ■ borrow money, issue notes, bonds, or debentures, and •execute mortgages or deeds of trust on any or all of- its property and franchises; and it is authorized to acquire and hold and guaranty stocks and bonds of other corporations.</p> <p>contended that the corporation had become dissolved and dead prior to the ■enactment of ch. 244, Laws of .1895, citing Comdes v. Keyes, 89 Wis. 297; Ooulding v. Ciarle, 34 N. H. 148, and cases-cited; Bartholomew v. Bentley, 1 Ohio St. 37; People ex rel~ Atfly Gen. v. Bank of Pontiac, 12 Mich. 527, 588; Penfield v. Skinner, 11 Yt: 296.</p>

BE. Johnson, Circuit Judge. On the question of the delegation of legislative discretion they cited, besides cases cited in the opinions, O'Weil v. Am. F. Ins. Oo. 26 L.. R. A. 715-J1J. They cited, in addition to cases referred to in the opinions, Bank of Chenango v. Brown, 26 N. Y. 467, 469; Cincinnati, W. ds Z. JR. Co. v. Clinton Co. Comm’rs, 1 Ohio St. 88; Moers v. Beading, 21 Pa. St. 202; Locke's Appeal, 72 id. 498; Dillon, Mun.

<p>Appeal from a judgment of the circuit court for Milwaukee county: FbaNK M. Fish, Judge.</p>

J. YiNje, Circuit Judge. Ch. 138, Laws of 1895, entitled “An act to establish a home for the custody, training and education of the feeble-minded, -epileptic and idiotic, and to appropriate certain sums of .money therein named,” was published and went into effect April 9, 1895, and provided, among other things, in effect: '(Sec. 1) That there is created and established, for the care, ■custody, and training of the feeble-minded, epileptic, and idiotic of this state, an…

<p> Milwaukee police court: Review of judgments: Writ of error: Appeal. </p> <p>1. A judgment of the police court of Milwaukee cannot be brought directly to the supreme court for review on writ of error.</p> <p>3. Though the act creating the police court of Milwaukee does not expressly give to the city the right of appeal where a person charged with violation of a city ordinance is acquitted therein, yet, if the action is a mere civil action to recover a penalty, it would seem that the city has a remedy under the general statutes regulating appeals in such cases.</p>

<p> Voluntary assignment: Allowances to assignee: Appeal: Evidence. </p> <p>1. An order of the circuit court confirming allowances made by a referee as reasonable compensation to an assignee for the benefit of creditors, and to his attorneys, will not be disturbed on appeal where there is evidence to support it.</p> <p>2. The court is not absolutely bound, in such a case, by the evidence of experts as to the value of the services, but may allow a sum. less than that fixed by any of them.</p>

0. Ludwig, Judge. The plaintiffs are trustees of the Buckeye Mutual Eire Insurance Company of Shelby, Ohio, a nonresident mutual fire insurance company, which has been declared by the proper court of Ohio to be insolvent, and of which the plaintiffs have been duly appointed trustees for the purpose of winding up its affairs and paying its debts, with the general powers of receivers as understood in this state. The defendant is the holder of a policy of that corporation.

Fish, Judge. Action to set aside a tax certificate upon real estate owned by the plaintiff. The defendant city, by right of eminent domain, took certain lands for the purpose of opening Kane Place as a public street in such city. Proceedings were had under the charter of such city whereby a part of the damages awarded to the owner of the lands so taken was assessed as a charge or lien against the plaintiff’s lot.

<p> Assault: Intention to do bodily harm. </p> <p>Plaintiff cannot recover, in a civil action for an assault ■with a revolver, upon a verdict finding that the revolver was not aimed or presented at the plaintiff when discharged, nor immediately thereafter, and that defendant discharged it with the intention of frightening plaintiff, but without intending to do him any bodily harm.</p>

H. Johnson, Circuit Judge. The action is against the defendant alone for goods sold. Held: in effect, that the defendant should be estopped to deny that he was one of the firm of J. Hadfield & Co., and judgment was given against him for the plaintiff’s debt. Erom that judgment this appeal is taken.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Feane M. Fish, Judge.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>The parties to the original action, and the garnishee action as well, were nonresidents. Personal service was obtained on the garnishee defendants in this state. Service was obtained on the defendant in the principal action by publication. The complaint was verified in New York before S. Steinhammer, who signed as commissioner of the state of Wisconsin for New York. A seal of office was impressed upon the paper, made by an engraved seal containing words as follows: “ S. Steinhammer, Commissioner for in the State of New York.” The blank space left in the impression of the engraved seal was filled in by pen and ink with the word “ Wisconsin.” The affidavit for publication in no way showed that the defendant had property in this state, except by the following words: “ That defendant has property in this state, to wit, moneys in the hands of” various persons (naming them), “ who are garnishees in the above-entitled action now pending by above plaintiffs against said defendant in this case.” The proof of service of the garnishee process upon the garnishee defendants does not show that, after due diligence, service could not be made on the principal defendant in this state.</p> <p>The garnishees answered that they became severally indebted to the principal defendant, Henry P. Ide, but that George D. Ide claimed to own such indebtedness, under an assignment from Henry P. Ide made before service of the garnishee process upon them. Issue was taken on such answer.</p> <p>George D. Ide was duly interpleaded, and answered, setting up that such indebtedness, for a valuable consideration, was on the 9th day of September, 1890, before the service of the garnishee process on the garnishees, assigned to him, and that at the time of the making of such answer he was the owner thereof. Issue was taken on such answer. The result of the trial of such issue was that the court found, for the plaintiffs, that the several assignments of indebtedness under which the interpleader claimed were void as against plaintiffs, and further found that the amount of such indebtedness of the garnishee August Ueubling, at the time of the service of process upon him, was $866.68, and of the garnishee A. 0. Feldt, $76.63. The assignments made to George D. Ide were, in form, to him personally. He did not claim any personal interest, other than such as belonged to him as a legatee of George L. Ide, deceased. He claimed to own the indebtedness, and hold the same, as executor of the will of George L. Ide. The court found all the facts to exist requisite to entitle plaintiffs to judgment against the interpleaded defendant, and ordered judgment accordingly against him personally, and as executor of the will of George L. Ide, dismissing his answer, and for restitution of any sum he had collected from the garnishees after the service of garnishee process upon them. Judgment was entered accordingly.</p> <p>Exceptions were filed, which will be referred to in the opinion so far as necessary. The appeal is from the judgment against the interpleaded defendant only.</p>