Volume 94 — Wisconsin Reports

<p>Aeeeal from a judgment of the circuit court for Milwaukee county: D. H. JohNsoN, Circuit Judge.</p> <p>This action was commenced August 28, 1893. The complaint alleges, in effect, that on October 29, 1892, the defendant, at the instance and request of the plaintiffs, loaned to them $2,500 upon an agreement that the plaintiffs should not only repay the defendant the $2,500, but also, in addition thereto, a large, exorbitant, and usurious sum of money, to wit, $1,000, for the loan for the time the same should be retained by them, as therein alleged; that the plaintiffs acceded to the demands of the defendant, and on October 29, 1892, made, executed, and delivered to the defendant their two certain promissory notes in writing,— one dated October 29, 1892, wherein and whereby they, for value received, promised to pay to the order of the defendant, ninety days after date thereof, $2,000, with interest at six per cent, per annum after due, secured by a land contract, and the other note, dated October 29, 1892, wherein and whereby they, for value received, promised to pay to the order of the defendant, four months after the date thereof, $1,500, with interest at six per cent, per annum after due, secured by stock certificate; that no other or greater consideration had ever been had or received by the plaintiffs for said notes than the $2,500 mentioned; that the plaintiffs paid to the defendant thereon, November 28,. 1892, $500; that the plaintiffs paid to the defendant thereon,. ■January 10, 1893, $500; that the plaintiffs paid to the defendant thereon, January 16, 1893, $500; that the plaintiffs paid to the defendant thereon, January 25, 1893, $1,000;.' that all of said sums of money, paid by the plaintiffs to the defendant, were so paid to him at the instance and request of the defendant, who accepted and received the same; that January 25, 1893, the defendant surrendered to the plaintiffs said notes, and in lieu thereof they executed and delivered to him their joint promissory note in writing, dated January 25, 1893, wherein and whereby they, for value received, promised to pay to the order of the defendant $1,000, without interest, secured by certifícate of stock; that no other consideration was ever had or received by the plaintiffs for the last-mentioned note than stated; that the defendant received and accepted the same in the place and stead of the two notes so surrendered, and did thereafter, and before said last-mentioned note became due, indorse and transfer the same to the Plankinton Bank for $1,000; that on June 1, 1893, the Plankinton Bank made a voluntary assignment to 'William Plankinton for the benefit of its creditors; that on June 8,1893, the plaintiffs, on demand of said assignee, paid to him the sum of $1,000, on account and in satisfaction of said note, which was thereupon canceled, surrendered, and delivered to the plaintiffs; that the plaintiffs had paid, and the defendant had received, for said loan of money, in excess of interest at the rate of ten per cent, per annum, the sum of $950.83; and for three times that amount the plaintiffs demanded judgment against the defendant, together with costs and disbursements of the action.</p> <p>The defendant answered, by way of admissions, denials, and counter allegations, to the effect that the $2,500 so alleged to have been loaned was placed by the defendant in the hands of the plaintiffs at their solicitation and request, to be invested by them in certain real estate, and the $1,000 alleged to have been contracted for and paid by the plaintiffs to the defendant, for the use and forbearance of the $2,500, was contracted for and paid by the plaintiffs as the defendant’s share of the profits of the investment in the real estate mentioned; that the plaintiffs represented to the defendant that there was at least $6,000 or $7,000 profits to be made from the proposed investment in said real estate, and desired the said defendant to join them in the speculation, and to advance for that purpose the $2,500; that the-plaintiffs agreed that, if the defendant would accept as bis share of the profits of such investment the sum of $1,000, they would guarantee the same to him, and return to him, in four months from that time, the $2,500 so advanced; that the defendant assented to the proposal of guaranty and the refunding of the sum so to be advanced as his full share and interest in such investment and the profits thereof; that accordingly it was concluded and agreed that the notes should be given as mentioned.</p> <p>At the close of the trial, the jury, by direction of the court, returned a verdict in favor of the plaintiffs for $2,852.50, being three times the amount so alleged to have been paid by the plaintiffs in excess of the legal interest. From the judgment entered thereon in favor of the plaintiffs the defendant appeals.</p> <p>They contended, inter alia, that a loan is not necessarily usurious by reason of its constituting part of an agreement between the parties, which they regard as mutu-, ally beneficial on its own merits, and to which the loan is merely incidental. Glarke v. Sheehan, 47 N. Y. 188; Utica Ins. Oo. v. Ca&well, 3 Wend. 296; H. Y. F. Ins. Co. v. Donaldson, 3 Edw. 199; Nourse v. Prime, 7 Johns. Oh. 77; Suydam v. Westfall, 4 Hill, 211. The transaction was not strictly a loan, at least as it appears from the pleadings, but a joint adventure in the nature of a partnership for the purpose of securing the profits of the enterprise and dividing them. Oase v. Fish, 58 Wis. 90; Upton v. Johnston, 84 id. 8; Rosenfield v. Haight, 53 id. 260; Spaulding v. Stubbings, 86 id. 255. Participation in profits makes one a partner. Pa/rher v. Oanfield, 37 Conn. 250; Boston <& O. Smelting Oo. v. Smith, 13 R. I. 27; Oilpin v. Enderby, 5 Barn. & Aid. 954; Posenfield v. Hcvight, 53 Wis. 260; Spaulding v. Stub-bings, 86 id. 255; Robbvns v. laswell, 27 Ill. 365; Story, Partnership, § 15; Dob v. Halsey, 16 Johns. 34; Ferguson v. Alcorn, 1 B. Mon. 160. In any event the defendant would be a partner as to third parties, since he received a share of the profits, even though guaranteed to him, and would therefore be liable for the obligations entered into by the other parties concerned. Meyers v. Field, 37 Mo. 434; Sager v. Txipper, 38 Mich. 258; Saufley v. Howard, 7 Dana (By.), 367. The guaranty of profits was not sufficient to constitute usury. Dosenfield v. Haight, 53 "Wis. 260; Spaulding v. Stubbings, 86 id. 255; Parher v. Canfield, 37 Oonn. 250.</p>

<p>Appeal from an order of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>One Arthur E. Stein was indebted to the defendant in the sum of $700. He held notes against one Edward W. Yogel to the amount of $675. He offered these notes to the defendant, to be applied upon his indebtedness to it. The defendant received the notes with the agreement that it should make inquiry, and, if it became satisfied that the notes were good and the maker solvent, it would apply the amount to the payment of Stein’s indebtedness; otherwise it would return the notes to Stein. Afterwards Stein demanded the return of the notes to him, which was denied. The notes were not indorsed by Stein, and the defendant did not desire their indorsement. Stein then assigned the notes to the plaintiff. Plaintiff gave notice to the defendant of the assignment, and demanded delivery of the notes to him, which was refused. He then brought this action for the conversion of the notes. To the complaint, setting up, in substance, these facts, the defendant demurred on the ground that it does not state a cause of action. From an order overruling the demurrer this appeal is taken.</p>

H. JohNSON, Circuit Judge. Action for damages for an alleged eviction of plaintiff by Charles IT. Larkin, deceased, from a store building occupied by plaintiff under a lease from said Charles II. Larkin, before the expiration of the term of such lease. The action was commenced against the deceased. He died thereafter, and the cause was duly revived against the defendants as his personal representatives. He owned buildings surrounding the building in question.

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>This action was commenced March 26, 1895. The complaint alleges, in effect, that the plaintiffs, Laura and Sosa Gross, claim the right to the plant, fixtures, and stock on hand of a soap factory described, the personal property under a bill of sale executed by Leopold Gross, August 17, 1893, and the real estate under an agreement in writing executed by Leopold Gross on that day, wherein and whereby he agreed to execute and deliver to the plaintiffs or their assigns a lease for the purpose of carrying on the soap manufacturing business thereon, for a rental of $15 per week, said lease to be for the term of one year, with the right on the part of the plaintiffs to hold the same under said lease, at the rate aforesaid, for an additional term often years; that prior to August 17, 1893, the said Leopold had purchased all of said property at sheriff’s sale on process against the defendants Bernhard and Jacob Gross; that, immediately upon such execution of the bill of sale and written agreement by Leopold Gross, the plaintiffs went into the possession of said real estate and personal property, and began and continued the manufacture of soap thereon; that October 21, 1893, the said Leopold Gross died, testate; that his will was duly admitted to probate; that defendant Joseph Gross was duly appointed administrator of the estate of the said Leopold; that in and by the will the said Leopold devised and bequeathed his property generally, without describing the same, to his wife, the defendant Catherine Gross; that October 27, 1893, the defendant city of Milwaukee unlawfully and wrongfully entered upon and took and appropriated to its own use a portion of said real estate described, for the purpose of constructing a bridge or viaduct thereon, without any compensation; that December 12, 1893, October 30, 1891, and March 21, 1895, the defendant Gatherine Gross executed and delivered to the defendant Sarah Singer warranty deeds of three several portions of said premises, and which deeds were recorded June 13,1894, and March 22, 1895; that the defendants Bernhard and Jacob Gross claim 'to be the owners in fee of all of said lands, and to have been such owners at the times mentioned; that the defendant Joseph Gross claims to be entitled to all of said personal •property, the possession of all of said lands, and the damages against the city of Milwaukee, as such administrator; that the defendant Sarah Singer claims to be the owner of the portions of said lands under the deeds aforesaid, and also to be the owner of such damages against the city; that the defendant Joseph Gross was then in possession of the personal and real property aforesaid, with a large body of men, holding the same with force and arms, having expelled the plaintiffs therefrom March 25,1895. Wherefore the plaintiffs prayed judgment that a receiver be appointed during the pendency of this action to carry on the business, to take and hold possession of the property for the benefit of whosoever may be entitled thereto; that the title of the plaintiffs to the personal property, and possession of the real estate under said agreement for a lease, be quieted and established, ■and the defendants and all persons claiming under them be •enjoined and restrained from in any wise interfering therewith.</p> <p>Separate answers to the said complaint were put in by the defendant Joseph Gross, as such administrator, claiming to be such owner; by the defendants Bernhard and Jacob C-ross, claiming to be such owners; by the defendant Catherine Gross, claiming to be such devisee and legatee, with right to so sell and convey; and by Sarah Singer, claiming to be owner under such conveyances.</p> <p>At the close of the trial the court found as matters of fact, in effect, that for more than ten years prior to July 25, 1898, the defendants Bernhard and Jacob Gross were engaged as partners, under the firm name of Gross Brothers, in the manufacturing and sale of soap in the soap factory in question; that the said Leopold and Catherine were husband and wife, and the said Bernhard, Jacob, Joseph, and Sarah were tbeir children, and the said Lav/ra was the wife of said Bernhard, and the said Rosa was the wife of said Jacob; that in July, 1898, the firm of Gross Brothers, composed of the said Bernhard and Jacob, was indebted to various persons, and at the same time held, and had for some time held, the real estate in question in such way that the apparent legal title of record was in Leopold, but in fact in Bernhard and Jacob, who held title thereto by an unrecorded deed, executed and delivered to them by Leopold and Catherine, February 10, 1888, which deed was duly executed and acknowledged, but never recorded, and which conveyed to Bernhard and Jacob Gross the lands in question; that in July, 1'893, judgments were confessed by Bernhard and Jacob Gross to Leopold, one for $3,682.20, and the other for $17,332.20; that Bernhard and Jacob caused execution thereon to be issued to the sheriff, and against the property of Gross Brothers, consisting of said soap factory, the machinery and utensils lor the manufacture of soap, and the stock manufactured and partly manufactured, and the material for such manufacture, to be levied upon under such executions, and advertised for sale, and sold; that certain creditors of the firm made a levy on the same goods, and intervened in said action of Leopold against Bernhard and Jacob Gross, so that it became necessary that cash should accompany any bid made on such execution sales; that said goods so seized and levied on were, August 14, 1893, bid off in the name of Leopold Gross for $4,080, which sum was then and there furnished and paid into court by the plaintiffs for whosoever might be entitled thereto; that the title of record of said land and the ownership of said personal property appeared to be in Leopold after said sheriff’s sale, but no change was made in the possession or control of said property, except that the manufacture of soap thereon was earned on under the name of Leopold Gross; that August 17, 1893, Leopold executed, and caused to be delivered to tbe plaintiffs, tbe bill of sale of tbe personal property as mentioned in tbe complaint; tbat thereafter tbe title was apparently in tbe name of Leopold up to tbe time of bis death, and since in Joseph, as bis administrator, but tbe possession was really held by them as tbe agents of Bernhard and Jacob G-ross; tbat Leopold did not at tbe time of bis death own either said personal property or said real estate, except tbe life estate so reserved in tbe deed of February 10, 1888, and tbat at the time of tbe appointment of Joseph as such administrator be knew tbat Leopold did not own said real estate or personal property, or any part thereof; tbat March 25,,1898, Bernhard and Jacob Gross executed and delivered to tbe plaintiffs an agreement in and by which they' bound themselves to execute and deliver to tbe plaintiffs a lease of tbe lands aforesaid, substantially as set forth in tbe complaint, and tbat tbe rental of $15 per week, reserved in said lease or agreement for a lease, should be paid to or for tbe use of said Catherine; that‘each of tbe three several deeds executed by tbe said Catherine to tbe said Sarah Singer, mentioned in tbe complaint, were voluntary conveyances, without any consideration, and executed by Catherine, and taken by Sarah with knowledge and notice of tbe rights of tbe plaintiffs and of all parties to this action; tbat Catherine bad no title; and tbat tbe deeds were and are clouds upon tbe title of tbe plaintiffs and tbe defendants Bernhard and Jacob Gross.</p> <p>As conclusions of law, tbe court found, in effect, tbat tbe plaintiffs are tbe owners of tbe said personal property, and are entitled to an injunction against all tbe other defendants, enjoining and restraining them from interfering with tbe same; tbat Bernhard and Jacob Gross are the owners of tbe real estate aforesaid, and of all claims for damages growing out of any taking by tbe city, subject to tbe life interest of Catherine in and to tbe portions thereof described; tbat tbe plaintiffs are entitled to have executed to them, by Bern-bard and Jacob Gross, a lease of all the lands mentioned, subject to the life estate of Catherine, at a rental of $15 per week, payable weekly to Catherine, during her life, person-' ally; that the three deeds from Catherine to ¿Sarah, with the assignment aforesaid in one of them, be canceled, set aside, and held for naught; that the plaintiffs are entitled to judgment against all the defendants for the relief aforesaid, and for their costs and disbursements, and the receiver herein is ordered to forthwith file his account and deliver the possession of the property to the plaintiffs, and, upon the approval of his account, the receiver shall be discharged from further duty or liability; and it was therein ordered that judgment be entered accordingly. From the judgment entered thereon accordingly the defendants Joseph Gross, as administrator, etc., and Catherine Gross and Sarah Singer appeal.</p> <p>In disposing of the case, Judge Ludwig, before whom it was tried, among other things, said: “There is one thing I am satisfied of in this case, and it is a matter upon which turns a good deal of the opinion I take in the matter, and that is this: I am convinced from all this testimony introduced in this case that whenever the Gross brothers, Bernhard and Jacob, were about to enter into some financial undertaking, the first thing they did was to shield themselves, against their creditors if that financial undertaking should prove a bad one. I am almost satisfied from everything I have heard and seen in this case that, whenever there was. a financial failure (as the evidence shows there was at least one), the intention of the Gross brothers was to conceal as. much property as posssible from their creditors. Those two facts run through all this case like a red line, and, in considering this testimony and all the evidence introduced in the case, I consider it, I must confess, in the light of that red line. I will further say, from what I can see in this case, the old gentleman, Leopold Gross, was always very accommodating to bis sons in assisting them in attaining those objects and purposes. So far as the question of the validity of those instruments is concerned, I have no doubt that the deed of February 10, 1888, is genuine. I do not doubt the genuineness of any instrument offered in this case in evidence, except that I had considerable doubt, and I have some doubt yet, whether the signature to the bill of sale and promissory lease is genuine. However, taking into consideration all the facts and circumstances proven in this case, I think it was only a matter following in the natural line of circumstances, and in the natural line of the doings of these parties, that such a bill of sale would have been signed. For that reason, I have given the benefit of the doubt in favor of the plaintiffs, who claim under it. There is no question in my mind that all these parties were acting in concert at the time when this sheriff’s execution was taken out and levy made upon the property, and that they were all in concert, including Joseph Gross and everybody else, while the sheriff was in there and while the property was in the custody of Joseph, so acting as administrator, either temporarily or as permanent administrator; and, in fact, the possession of the property never changed. If this action was brought by creditors, 1 think the testimony would have to be looked at in a different light than as a court would be constrained to look at it in a fight between these parties. I am satisfied that there was really never a change of possession. It was a preconcerted arrangement and understanding that this administrator was simply there as a functionary, acting for and in behalf of this scheme which was to be carried out; and I think that, under these circumstances, I would doubt very much whether a bill of sale was absolutely necessary. Rut, inasmuch as there is a bill of sale, I will cast my doubt in favor of the bill of sale, because it was a natural thing to follow in the course of these arrangements between the parties as they conclusively appear from all the evidence. So that, taking this altogether, all these instruments I judge to be genuine.”</p> <p>They contended, inter alia, that it was error to give any relief to Bernhard and Jacob Gross, because they had pleaded no counterclaim.</p> <p>He argued that the adjudication of the adverse claims of the defendants was proper, the question having been litigated and decided on its merits, and the relief granted being connected with, or necessary to, the relief given to the plaintiffs. Elliott v. Pell, 1 Paige, 268; Ohamley v. Lord Bunsany, 2 Sch. & L. 710, 718; Oonry v. Oaulfield, 2 Ball & B. 256; Gorooran v. O. cfa 0. Canal Go. 94 U. S. 741; Louis v. Brown Tp. 109 id. 162.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: E. N. Austect, Judge.</p> <p>The defendant Mary A. Gorman is the daughter of the defendant Ann Hanley. Mrs. Gorman had a contract with the plaintiff for the purchase of a house and lot in the city of Milwaukee for the price of $10,000. She had no money, and borrowed of her mother $1,500 with which to make the first or down payment. She gave to her mother her own judgment note, due on demand, and agreed to give her security on the land for the repayment of the borrowed money. To effectuate this security upon the land, a land contract was made in the name of Mrs. Hanley as' vendee. Mrs. Manley had been reluctant to loan the money to Mrs. Gorman, and only consented to do so upon the assurance of plaintiff’s agents that by this arrangement “ the money is just as sure to you as if you had it in your own house. . . . The land contract is just as good as a mortgage. ... As long as you have the land contract along with the judgment note, you will be sure to get it anyway,” — with other assurances to that effect. With such understanding, she consented to loan the money. The land contract was made in her name as vendee. It is in the usual form of land contracts, signed by both vendor and vendee. By its terms, Mrs. Hanley promised to make all remaining payments to the amount of $10,000, with interest at the time specified, and agreed that, in case of her failure to make such payments, all money which should have been paid should be deemed forfeited; and the plaintiff, on its part, agreed to make a sufficient conveyance to her on the complete payment of the agreed price. Pursuant to this agreement, Mrs. Gorman entered at once into the occupation of the premises. No further payments were made by any one upon the contract.</p> <p>The plaintiff brought this action to foreclose the land contract. The defendant Mrs. Hanley set up the facts substantially above stated, and asked that tbe transaction be held to be a mortgage upon tbe premises against tbe plaintiff and in ber favor for $1,500 and interest, and for a judgment foreclosing tbe same. Tbe court gave ber sucb a judg-ment in tbe usual form. Erom that judgment this appeal is taken.</p> <p>contended, inter alia, that tbe taking of tbe contract by Mrs. Hcmley, under tbe circumstances, constituted an equitable mortgage on tbe premises to secure tbe repayment of tbe money loaned by ber. Hoile v. Hailey, 58 "Wis. 448; Starks v. Redfield,, 52 id. 352; Howe v. Oarpenter, 49 id. 702 5 Phelan v. Fitzpafi'ick, 84 id. 240-247; Schriber v. he Glair, 66 id. 579. The facts which constituted ber an equitable mortgagee were properly shown by parol evidence. Burr v. O. O. Thompson & W. Oo. 78 Wis. 227, 236; Starks v. Redfield, 52 id. 349; Sweet v. Mitchell, 15 id. 641; Wilcox v. Bates, 26 id. 465; Joxcrdavn v. Fox, 90 id. 101.</p>

D. OlevelaNd, Judge. Action to revive and foreclose a mortgage, and for other equitable relief. The facts necessary to an understanding of this appeal are stated in the opinion.

<p> Divorce: Cruel and inhuman treatment: Findings: Evidence. </p> <p>Findings of the trial court, to the effect that the defendant was not guilty of the cruel and inhuman treatment alleged as ground for a divorce, are held not to be against the clear preponderance of the evidence.</p>

S. G-ilsoN, Circuit Judge. The action is brought for the settlement of the accounts of a partnership which has already been dissolved. It is not stated whether there are any firm creditors. The plaintiff alleges that on settlement there will be found a large sum due him. He demands judgment for the recovery of such sum as niay be found due him on such settlement.

W. Buenell, Circuit Judge. This is an action of libel, brought by plaintiff for an alleged libelous article printed in the Oshkosh Northwestern, March 19, 1889, of which paper defendant was publisher and proprietor. At the time of said publication, the plaintiff was state senator from the Nineteenth senatorial district, which comprised the city of Oshkosh and a large portion of the county of Winnebago.

<p>Appeal from a judgment of the circuit court for Winnebago county: G-eo. W. Burnell, Circuit Judge.</p> <p>This is an action upon a fire insurance policy, issued by the defendant upon the plaintiff’s dwelling house and household goods, for $500. The plaintiff’s title to the land upon which the house stood was a land contract, on which a part only of the purchase price had been paid. The policy contains a provision that it shall be void if the plaintiff’s title to the ground is less than a fee simple, unless otherwise provided by agreement indorsed on or annexed to the policy. No such agreement ivas indorsed or annexed. It was urged in defense that the policy was void because of the plaintiff’s lack of title. It was urged by the plaintiff that the defendant was estopped to make this defense, because it had taken his money and issued its policy with knowledge of the true condition of his title. Defendant denied knowledge of the condition of the title. This was the only question seriously controverted in the case, and the only question submitted to the jury. The jury found that the defendant’s agent, who issued the policy, was informed of the true condition of the title before.the policy was issued. On the verdict and undisputed evidence the court gave judgment for the plaintiff for the amount of the policy.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: G-eo. W. Buknell, Circuit Judge.</p> <p>Plaintiff, on the 4th day of June, 1892, delivered some boxes of goods, said to contain glass, to the defendant at Columbus, Wisconsin, to be shipped over its line of railway to Deerfield, Wisconsin. No information was given to defendant’s agent or otherwise that such boxes contained property other than glass, or of any special use for which such goods were intended. Plaintiff was a traveling photographer, and the boxes contained implements and materials for use in his business. He intended to engage in such business at Deerfield immediately on the arrival of his goods at that point, and, anticipating such arrival, he went to Deerfield on the day the goods were delivered to defendant for shipment, and arranged for pursuing his calling upon their arrival. After waiting a sufficient length of time for the arrival of the goods at their destination if shipped direct and in the regular course of business, and failing to receive the same, plaintiff informed defendant’s agent at Columbus of the character of such goods, and his purpose in shipping the same to Deerfield. Five days thereafter was a sufficient length of time for defendant, with the exercise of reasonable diligence, to have delivered the goods at Deerfield. Delivery was not made till ten days after the expiration of such period. The jury found specially the facts as above stated, except as they appeared uncontro-verted upon the evidence, and that plaintiff sustained special damages to the amount of seventy-five cents freight charges for shipping and reshipping goods from Milwaukee, $6.50 for rent of a room and board while plaintiff was unreasonably delayed by failure to deliver the goods, and $80 for loss of profits in his business during such time. Defendant moved the court on the special verdict for judgment, which motion was denied, and defendant excepted. Plaintiff’s attorneys moved the court for judgment in his favor for the damages found by the jury and costs, which motion was granted, and the defendant appealed.</p>

<p> Attachment: Affidavit: Amendment: Effect on intervening claims: Levy before service of summons: Jurisdiction: Extent of officer's interest in property attached. </p> <p>1. An affidavit for an attachment under sec. 3702, R. S., if not made by the plaintiff himself, must contain a sworn statement that it is made in his behalf.</p> <p>2. An attachment which is void because of the insufficiency of the affidavit therefor is not made valid by the subsequent rendition of judgment in favor of the plaintiff.</p> <p>3. An amendment of an affidavit for attachment by increasing the amount claimed, after the levy, cannot affect the rights of another creditor whose attachment has intervened.</p> <p>4. Property may be levied upon and seized under a writ of attachment before actual service of the summons in the action, if such summons has been issued and placed in the hands of the officer with a bona fide intent that it shall be served, and such seizure gives the court jurisdiction over the property seized and the control of all subsequent proceedings thereon.</p> <p>5. The legality of such a levy and seizure must be determined by the condition of things at the time they were made.</p> <p>6. In an action by a constable against a sheriff for the conversion of property which plaintiff had held under an attachment and which defendant had taken from him under another attachment and had thereafter sold by order of the court, if plaintiff is given judgment for so much of the proceeds of the sale as is necessary to satisfy all the valid liens held by him he is not interested in the balance of such proceeds and cannot litigate the question whether the creditor under whose attachment the defendant acted has lost his lien by a failure to serve his summons within a reasonable time after the seizure.</p> <p>As to the right to amend an affidavit for attachment, see note to Heidel v. Benedict (61 Minn. 170) in 31 L. R. A. 423. — Rep.</p>

S. Gilson, Circuit Judge. The complaint in this action is as follows: “That, at the times hereinafter mentioned, the circuit court in and for the county of Cook, in the state of Illinois, was a court of general jurisdiction over matters in equity and law, duly created and organized by the laws of that state. “ That on the 5th day of November, 1890, the said plaintiff commenced an action for divorce in said court against the said defendant.

<p> Poor Jaws: Immediate, temporary relief: Support of pauper: Recovery against town of legal settlement: Pleading: Notice: Waiver, </p> <p>1. Sec. 1512, R. S., is intended to provide for immediate relief in case of sudden emergency, without regard to whether the person relieved is a pauper, strictly so called, or not.</p> <p>2. In all cases of relief under sec. 1512, R. S., the county, after having paid the expense incurred by the town, may recover the same by action against the' town where the person relieved has a legal settlement, without reference to the procedure provided for in secs. 1513, 1514,</p> <p>S. A complaint alleging that a person relieved by the plaintiff county had a legal settlement in the defendant city for pauper support when he removed to said county; that he was sick, weak, lame, and otherwise disabled, and did not have any money or property to pay his boar.d, etc., at the time of such removal; that he was provided for as a pauper by the plaintiff for a period of over five years, and was then turned over to the defendant as a pauper, and received as such by its superintendent of the poor,— is held not to show one of the special cases requiring immediate, temporary relief under sec. 1513, E. S., but the case of a nonresident pauper supported as such, so that in order to recover for such support the plaintiff must have followed the procedure prescribed by secs. 1513, 1514.</p> <p>4. The reception of such pauper as a public charge by the defendant city before the commencement of the action was not a waiver of the notice provided for in sec. 1513, E. S., though probably it rendered unnecessary the request to remove.</p>

<p> Garnishment: Chattel mortgages: Inability of agent in possession. </p> <p>An agent of the assignee of a chattel mortgage, who has taken possession of the mortgaged property pursuant to the terms of the instrument and holds the same for his principal, is not by reason of such possession subject to garnishment in an action against the mortgagor, even though the mortgage is void as against the creditors of the latter — especially where, immediately upon being garnished, the agent relinquishes his agency and surrenders the possession of the property to his principal.</p>

R. Austin, Judge. This is an action to recover for personal injuries suffered by plaintiff on the 4th day of September, 1891, in the defendant’s rolling mill, in the city of Chicago, Ill.; the plaintiff being at that time and now a citizen of the state of Illinois, and the defendant being an Illinois corporation.

<p>(1-3) Chatlel mortgages: Filing: Consent to sale by mortgagor: Estoppel: Removal of mortgagor: Refiling. (4, 5) Appeal: Exceptions to findings: Motion for new trial after judgmem.</p> <p>1. The filing of a chattel mortgage is complete, in legal contemplation, when it is delivered to, received by, and left with the proper town clerk; and the failure of the clerk to make any indorsement of the filing on the mortgage does not affect its validity.</p> <p>2. Where the mortgagee of chattels consents to the sale thereof by the mortgagor, but in the presence of the vendee distinctly refuses to release or forego his mortgage claim until paid, he is not estopped from asserting such claim as’ against such vendee or a purchaser from him.</p> <p>S. Where the mortgagor of personal property removes from the town in which the mortgage is filed, taking the property with him, it is not necessary for the mortgagee to refile the mortgage in the town into which the mortgagor has removed, in order to protect his rights either as against the mortgagor or a subsequent purchaser*,</p> <p>4. Exceptions to the findings of fact generally, on the grounds that they are contrary to the evidence, are not supported by the evidence, etc., but not pointing out specifically any one of the findings as erroneous, do not entitle the appellant to a review of such findings.</p> <p>5. A motion for a new trial, made after judgment, cannot be entertained unless joined with a motion to vacate the judgment.</p>

<p>Appeal from an order of the circuit court for Monroe county: O. R. Wyman, Circuit Judge.</p> <p>The action is for a negligent fire which burned a quantity of hay belonging to the plaintiff. The answer alleges that the hay was insured against fire, and that the insurer has paid the loss in full to the plaintiff. The plaintiff demurred to this answer as not stating a defense. The demurrer was sustained, and the defendant appeals.</p> <p>cited Cunningham n. F. & T. Ft. R. Co. 102 Ind. 478; Lalte Erie dh W. R. Co. v. Griffin, 8 Ind. App. 47; Lindsay v. Bridgewater G. Co. 14 Pa. Co. Ct. R. 181; 1 Sutherland, Dam. (1st ed.), 242, 243, and cases cited; 2 Thomp. Neg. 1271; Althorf v. Wolfe, 22 N. T. 355; Collins v. N. V. C. dh H. R. R. Co. 5 Hun, 503; Briggs v. K. Y. C. dh II. R. R. Co. 72 N. T. 26; Bart v. W. R. Cory>. 13 Met. 99; Terry v. Jewett, 78 N. T. 338; Am. Dig. (1894), 1283; Weber v. M. dh E R. Co. 36 N. J. Law, 213; Merriolc v. Brainard, 38 Rarb. 574; Pittsburg, C. dh St. L. R. Co. v. Thompson, 56 Ill. 138; Harding v. Townshend, 43 Yt. 536; Kellogg v. N. Y. C.dhH. R. R. Co. 79 N. Y. 72; JDrinlcwater v. Di/nsmore, 80 id. 390, 36 Am. Rep. 624.</p>

B. Wyman, Circuit Judge. Action to recover damages for breach, of an alleged covenant for quiet enjoyment.

<p>Appeal from a judgment of the circuit court for La Crosse county: O. E. Wyman, Circuit Judge.</p> <p>To the point that the license money in question was not paid under such compulsion as to entitle the plaintiff to recover it back from the city, they cited Oshkosh v. Schwartz, 55 Wis. 483; Oook v. Boston, 9 Allen, 393; Ous-tm v. Viroqua, 67 Wis. 317; 18 Am. & Eng. Ency. of Law, 214, and note; Tiedeman, Nun. Corp. § 326a; Beach, Pub. Corp. § 234 ei seq.; Taylor v. Boa/rd of Health, 31 Pa. St. 73; Union Ins. Oo. v. Allegheny, 101 id. 250, 256; Dillon, Mun. Corp. § 751; De La Guesta v. Ins. Oo. of FT. A. 9 L. B. A. 631; Weber <o. Kirkendall, 44 Neb. 766; Oahaba v. Burnett, 34 Ala. 400; Ligonier v. Ackerman, 46 Ind. 552, 562; Cooley, Taxation, 567; Phelps v. Hew York, 112 N. Y. 216, 222; H. W. Union Packet Oo. v. Muscatine, 45 Iowa, 185; Bu/nker v. Steward, 2 New Eng. Bep. 424; Brazil v. Kress, 55 Ind. 14; Edvriburg v. Hacltney, 54 id. 83; Railroad Go. v. GommJrs, 98 U. S. 541, 543; Wabaunsee Go. v. Walker, 8 Kan. 431; Mays v. Cincinnati, 1 Obio St. 269.</p> <p>They cited Cooley, Taxation (1st ed.), 568, 569, and cases cited; Harvey v. Obney, 42 Ill. 336, 338, 339; HecJcman v. Swartz, 50 Wis. 267; Parcher v. Marathon Go. 52 id. 388, 390, 391; 2 Dillon, Mun. Oorp. §§ 942, 943, and cases cited; 2 Desty, Taxation, 797; Joyner v. School Hist. 3 Cush. 567, 572; Boston de S. Glass Go. v. Boston, 4 Met. 181, 188; Atwell v. Zeluff, 26 Mich. 118; Preston v. Boston, 12 Pick. 7, 13; JenJcs v. Lima, 17 Ind. 326; Lima v. JenJcs, 20 id. 301; Smith v. Readfield, 27 Me. 145,147; Allen v. Bxvrlington, 45 Yt. 202, 214; Moore v. St. Paul, 61 Minn. 427; Landa v. Obert, 78 Tex. 33; Powell v. St. Croix Go. 46 Wis. 210; Buggies v. Eon'ddu Lac, 53 id. 436, 442; Biss v. Hew Haven, 42 id. 605; Matheson v. Mazomanie, 20 id. 191; De Fremery v. Austin, 53 Cal. 380; Judd v. Fox Lake, 28 Wis. 583, 587.</p>

<p>Appeal from an order of the circuit court for La Crosse county: O. B. Wyman, Circuit Judge.</p> <p>This action was originally brought to enforce a subcontractor’s lien for building materials alleged to have been furnished to Ole Larson, as principal contractor, between June 22, 1893, and November 22, 1893, to be used, and in fact used, in the erection of a building for defendant Hul-berg, on certain real estate owned by said Hulberg. The original complaint alleged the giving notice by the plaintiff to Hulberg of its claim for lien, under R. S. sec. 3315, within due time, and the filing of a claim for lien, May 16, 1894, and demanded judgment of foreclosure and sale. This complaint was served with the summons, October 8,1894. The defendant Hulberg appeared, and denied all the allegations of the complaint except the allegation of ownership of the premises and the allegation of corporate character of the plaintiff.</p> <p>In January, 1895; the plaintiff made a motion, based on affidavits, for leave to amend the claim for lien and the complaint, by adding a certain adjoining lot to the description of the real estate, and by adding an allegation to the complaint alleging that the defendant Hulberg made an express promise to pay for the materials before they were furnished. The affidavits in support of the motion tended to show that Hulberg promised to pay for the building materials before they were furnished, and that the reason why the claim for lien and the complaint charged only a subcontractor’s lien was on account of a misunderstanding between the bookkeeper of the plaintiff and the plaintiff’s attorney. Affidavits were filed by Hulberg in opposition, expressly denying any agreement on his part to pay for the materials, and showing that the defendant Ole Larson had become insane since completing the building in question, and was still in that condition. The court allowed the amendment as to the description of the premises, but denied the proposed amendment, alleging' an express promise on the part of Hulberg to pay for the materials. From this denial the plaintiff appealed.</p>

<p> Statutes: Repeal of special provision by revision of general subject: Ap-pealable orders: Voluntary assignment: Partnership: Claims covered by assignment: Parties: Personal remedy: Estoppel. </p> <p>1. Sec. 16, ch. 385, Laws of 1889 (giving the assignor or any creditor in assignment proceedings the right to appeal from any order made in such proceedings), being a special provision relating to a particular subject, controls the general provisions relating to that subject, and was not repealed or affected by a subsequent revision of the general provisions (ch. 212, Laws of 1895), in which the right of appeal from orders remained as before the revision.</p> <p>3. "Where the firm of G. & Co., as such, is an individual member of the firm of G. & H., both of which firms have made voluntary assignments, claims of creditors of the latter for an unsatisfied balance •are included within the terms of the assignment of G. & Co., providing for the payment of the expenses of the trust and “ all other 'lawful debts, due and owing by the assignors, of every kind and •description,” and such creditors may prove their claims in the assignment of G. & Co. and obtain payment out of the assets of that firm after the creditors in its separate business have been paid; and the same remedy could have been pursued if the members of the firm of G. & Co. had been individually liable for the debts of G. & H.</p> <p>3. The creditors of the firm of G. & H. in such case by filing their claims in the assignment of G. & Co. became parties thereto, and are estopped from disputing the validity of the assignment, or from taking any action which would defeat its proper execution under the direction of the court; and the court having complete jurisdiction of the assignment and the assigned estate had power to enjoin the threatened sale of the assigned property under executions upon judgments in favor of such creditors.</p> <p>4. The right of the creditors of G. & H. to resort to the assets of G. & Co. is personal to each creditor, to be enforced by him in the administration of the estate of the latter firm, and not by the as-signee of G. & H., or by proceedings prosecuted in his name.</p>

<p>Appeal from a judgment of the circuit court for Monroe county: O. B. WymaN, Circuit Judge.</p> <p>Action on an insurance policy for $800 on a horse. There was a mortgage on the horse. It was stated in the written application that the horse was mortgaged to George B. Smith for $500. There was a provision in the policy that all statements in the application should be deemed to be express warranties of the truth of the representations. On the trial it appeared that the mortgage had been originally given for a larger sum, which at the date of the policy had been reduced by payments so that there remained unpaid upon it not less than $525. The defendant’s agent wrote the application. The plaintiff testified that he told the agent that he did not know the exact amount remaining unpaid upon the mortgage, but thought it was about $500. This the agent denied, and testified that the plaintiff stated the amount at $500, without any qualifying words. The court submitted to'the jury, in substance, only the question of the materiality of the variance in the amount unpaid in fact from the amount as represented. There was a demurrer ore terms to the complaint overruled, and exceptions to the charge. The trial resulted in a verdict and judgment for the plaintiffs, from which the defendant appeals.</p> <p>They contended, inter alia, that the allegations of the complaint are too indefinite. Warren v. Bean, 6 Wis. 120; Jackson v. Cleveland, 15 id. 108; First Fíat. Barniz v. Dakota F. & M. Ins. Co. 61 N. W. Rep. 439; Franklin v. Kirby, 25 Wis. 500; Barberry v. German Ins. Go. 51 id. 605. A false statement as to the amount of the incumbrance is a breach of warranty and avoids the policy. Smith v. Agricultural Ins. Go. 118 N. Y. 518; Brown v. People's Mut. Ins. Go. 11 Cush. 280; Hayward v. Hew England M. F. Ins. Go. 10 id. 444; Abbott v. Shawrnut M. F. Ins. Co. 3 Alien, 213; Falls v. Gonioay M. F. Ins. Go. 7 id. 46; Jacobs v. Eagle M. F. Ins. Go. id. 132; Sentell v. Oswego Go. Farmr ers’ Ins. Go. 16 Hun, 516. It makes no difference whether the misrepresentation is wilful or an honest mistake. Fisher v. Orescent Ins. Go. 33 Eed. Eep. 544. See, also, Glade v. Germania F. Ins. Go. 56 Iowa, 400.</p>

<p> Pleading: Construction: Immaterial allegations: Abortion: Justificar tion: Consent as defense. </p> <p>1. In determining whether a complaint states a cause of action, the question is not whether the plaintiff used the most appropriate language in stating his case, but whether the language used will permit of a construction which will sustain the pleading, and to that end such effect should be given to its allegations as will support it, so far as this can he done without adding constructively material words or giving the language used a meaning that cannot reasonably be attributed to it.</p> <p>2. Where the general scope and purpose of a complaint is apparent and the language used will admit of a construction consistent therewith, such construction, should be adopted, notwithstanding historical allegations, which, when viewed apart from such evident purpose, might be held to state a cause of action inconsistent therewith.</p> <p>3. In an action for damages for producing an abortion the justifiableness of the act under sec. 4352, R. S., is a matter of defense, and hence need not be negatived in the complaint.</p> <p>4. A complaint, in such a case, charging that an unlawful combinar tion was entered into among the defendants to do the act complained of, to prevent scandal and to save the reputation of one of them, and that what was thereafter done was pursuant to such unlawful combination, sufficiently negatives the justifiableness of the abortion under sec. 4352, R. S.</p> <p>5. Consent by one person to the performance of an unlawful act upon him by another does not constitute a defense to an action to recover the damages which he thereby sustained.</p>

<p> Street railways: Collision with vehicle causing death: Contributory negligence: Court and jury: Evidence: Damages. </p> <p>1: In an action against a street railway company for the death of plaintiff’s intestate, it appeared, among other things, that the deceased at the time of the accident was attempting to drive across defendant’s double car tracks, thirteen feet in width, in a southeasterly direction, behind a horse car moving south on the east track; that the accident occurred about twenty feet south of the intersection of another street from which deceased had approached; that the vehicle was struck on the west track by a car going north which had been standing upon the track at about the middle of the block until passed by the one going south; and that it was dusk at the time. Held, that it could not be presumed as matter of law that the deceased did not look and listen, and act prudently upon the knowledge thus acquired.</p> <p>2. In an action to recover damages for the death of a married woman, brought by the administrator of her estate, evidence of the husband’s circumstances and financial condition is admissible.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: O. B. Wyman, Circuit Judge.</p> <p>This is an action of replevin to recover a quantity of clothing of the value of about $1,300. This clothing was originally sold by the plaintiffs to the defendant Mace Si/rouse, who was a clothing merchant at La Crosse. The claim of the plaintiffs was that it was sold under false and fraudulent representations made by Strouse as to his financial condition; also that Strouse purchased with the deliberate intention not to pay. It appeared on the trial that the defendants Ladd and Scott were respectively sheriff aud under-sheriff of La Crosse county, and that when this action was brought they were in possession of the property re-plevined under several executions amounting to nearly $10,000, issued upon judgments against Max Strouse. These judgments had all been entered May 14, 1894, upon judgment notes previously given by Max Strouse. This action was commenced May 17, 1894. The jury returned a verdict for the plaintiffs in proper form, and from judgment thereon the defendants’appealed.</p> <p>They contended, mter alia, that the evidence of similar representations by Btrouse to other parties was admissible in rebuttal and in impeachment of his testimony. Welch v. Abbot, 72 Wis. 512; A. O. Gonn Go. v. Little Buamico L. Mfg. Go. 74 id. 652; Hunter v. Gibbs, 79 id. 70. Such evidence would have been admissible also, independent of its impeaching character, as a part of the plaintiffs’ case, under the rule that wherever intent or good faith of a person is in issue, or when the question is whether an act is accidental or intentional, similar cases to those which are alleged may be proven. The only limitation is that the acts sought to be introduced must be relevant as to time. MoHenney <o. Dvngley, 4 Me. 172; Gary v. Hotailing, 1 Hill, 311; Hall v. Naylor, 18 N. Y. 588; Allison v. Matthieu, 3 Johns. 235; Butler v. Watkins, 13 Wall. 456; Continental Ins. Go. v. Ins. Go. of Pa. 51 Eed. Eep. 884; Dwyer v. Bassett, 1 Tes. Civ. App. 513.</p>

<p> Master and servant: Personal injuries to minor employee: Uncovered" saw: Failure to warn: Excessive service: Court and jury: Evidence:Instructions. </p> <p>1. Plaintiff, a minor employee in a sawmill who had had considerable-experience at such work, was injured, while temporarily employed in throwing blocks from the table of a shingle mill into a hole in the floor on the opposite side, by his hand coming in contact with a rapidly-revolving saw on such table, so placed that only about three inches thereof projected upwards. There was evidence tending to show that the saw was not then in use; that at such times sawdust accumulated about it to some extent; that, its speed was such that it could not be readily seen; and that plaintiff did not know of its presence. Meld, that the question whether the plaintiff should have been warned or instructed as to the dangers arising from the presence of the saw was for the jury.</p> <p>2. Where it is the duty of an employer to caution his employees as to-the dangers and risks in their employment arising from the presence of uncovered machinery, the question whether such machinery should have been covered or guarded is ordinarily for the jury.</p> <p>3. Evidence that three different tasks had been allotted to a minor, one of which had previously been the sole duty of another employee, and that they were to a very considerable extent coinch dent in their requirements upon his attention, caution, and prompt action, is held sufficient to justify the submission to the jury of the question whether too great service was required of him, in view of his age, capacity, and judgment.</p> <p>4. Where there is sufficient evidence to sustain all of three separate charges of negligence, an instruction that the jury might find for the plaintiff “if the defendant was negligent in some of these respects, as stated,” was not erroneous.</p>

B. Wyman, Circuit Judge. Action by an administrator to enforce specific performance of an agreement to convey lands, made by the defendant to the plaintiff’s decedent in her lifetime. It appears that the purchase price had been fully paid, and that the decedent was in actual occupancy of the lands, and left children. It does not appear that there are debts against the estate, or a deficiency of personal estate to pay debts, nor that the plaintiff is in possession.

B. Wyman, Circuit Judge. The appeal was taken after the publication of ch. 215, Laws of 1895, from a judgment in plaintiff’s favor, involving less than $100, exclusive of costs.

B. Wyman, Circuit Judge. It appears from tbe record, and is found by tbe trial court, or conceded, in effect, that for many years prior to June 1, 1885, one Mason A. Tbayer, either alone or in company with another, carried on tbe banking business as a private banker in tbe city of Tomah, under tbe name and style-of tbe “ Bank of Tomah; ” that at tbe date mentioned, and to comply with tbe requirements of cb. 152, Laws of 1885,, tbe said Tbayer prefixed to such name tbe name…

B. Wyman, Circuit Judge. Personal injuries. The plaintiff was riding in a bobsleigh drawn by two horses, along a street in the city of La Crosse on the morning of February 14, 1894, when a collision occurred between the sleigh and an electric car operated by defendant, throwing the plaintiff out and injuring her.

B. Wyman, Circuit Judge. The plaintiffs were partners at Medford, Wisconsin, in the milling and logging business, under the firm name of: A. J. Perkins & Son, and brought replevin for 1,200,000 feet of hemlock saw logs, marked as stated in the complaint.

<p> Mortgage foreclosure: Personal judgment against guarantors for deficiency. </p> <p>4. In the absence of some statutory provision to the contrary a mortgagee must exhaust his remedies against both the mortgaged property and the principal debtor before he can proceed against a guarantor.</p> <p>2. Persons who have guaranteed the collection of a note secured by a mortgage and of all costs thereof are not “personally liable for the debt . . . upon the same contract which the mortgage is given to secure,” within the meaning of sec. 3156, R. S., so as to authorize a judgment against them in the foreclosure action for any deficiency which may remain unsatisfied after the security has been exhausted, as provided in said section.</p>

<p> Accident insurance: Negligence of insured: Construction of policy: Evidence. </p> <p>1. In an action upon a policy of accident insurance for the death of the insured, who with a companion was riding upon the top of a freight train without permission, undisputed evidence that the deceased and his companion proposed to get off at a certain station; that it was agreed between them that if the train did not stop there they would jump off; that the train, instead of slowing up as it approached the station, appeared to be increasing in speed; and that the companion jumped and immediately thereafter found the deceased unconscious, lying beside the track, is held to afford ground for no other reasonable inference than that the deceased jumped from the moving car and thereby received the injuries which caused his death.</p> <p>2. The act of jumping from the top or side of a rapidly-moving freight car is an act of gross negligence, consistent only with a conscious disregard of personal safety.</p> <p>3. In an action upon a policy of accident insurance the question whether contributory negligence of the insured constitutes a defense must be determined from the terms of the policy. Schneider v. Provident L. Ins. Co. 24 lyis. 28, limited and explained.</p> <p>4. Under an accident insurance policy excluding liability for “any injury resulting in whole or in part from exposure to unnecessary danger,” no recovery can be had unless the insured was in the exercise of ordinary care, within the general principles of the law of negligence, at the time the accident occurred.</p>

<p> Debtor and creditor: Fraudulent conveyances: Evidence: Judgment. </p> <p>1. The evidence in this case (showing, among other things, that, after tlie commencement of actions against a failing debtor, another creditor having an unrecorded chattel mortgage surrendered the same and took in lieu thereof a bill of sale of all the debtor’s property, consisting of a stock of goods) is held to show that the purpose of the exchange was to hinder, delay, and defraud the other creditors of the mortgagor.</p> <p>2. The purchaser under such sale, having been garnished in actions previously commenced against the vendoi’, was not prejudiced by a judgment holding him liable for the proceeds of such property in his hands, in excess of the amount due him.</p>

B. Bundy, Circuit Judge. This is an action to enforce specific performance of a land contract for the conveyance of 120 acres of land. The contract was executed by Patrick Velch, deceased, in his lifetime, to the plaintiff, and was conditioned upon the payment by Boles of $2,200. The defendants are respectively the administrator of the estate of Patrick Velch with the will annexed, and the devisee under the will of the entire estate.

<p> Railroads: Injuries causing death: Heath in another state: Statute construed. </p> <p>Under sec. 4355, S. & B. Ann. Stats, (giving a right of action against the person or corporation causing a death in cases where such person or corporation would have been liable to the deceased if death had not ensued, “provided that such action shall be brought for a death caused in this state, and in some court established by the constitution and laws of the same ”), an action may be maintained for a death occurring in another state but resulting from wrongful and negligent acts committed by the defendant in this state.</p>

<p> Mechanics’ liens: Foreclosure: Witnesses: Husband and wife: Questions of fact: Partner by holding out: Argument of counsel: Court and jury: Advisory verdict: Immaterial errors: Failure of party to appear: Judgment: Special verdict. </p> <p>1. In an action to foreclose a mechanic's lien, brought against P. who owned the land and O. who contracted for the work for wAich the lien was claimed, both of whom plaintiS claimed to be liable to him as partners, C.’s wife was incompetent as a witness for P. to testify to a conversation between her husband and the plaintiff in regard to the terms of the contract.</p> <p>2. In such a case P. admitted that he owned the land and that plaintiff did the work upon it as alleged, but claimed that a less sum was due than was demanded in the complaint, and also sought to recoup damages for defective work concerning which the evidence was conflicting. Held, that a motion to dismiss the action as to him was properly denied.</p> <p>3. The plaintiff’s testimony that C. represented himself to be a partner with P. in the matter of the building, and that he did not know that C. was only P.’s agent, being denied by C., raised a question of fact as to C.’s liability as such partner, to be determined in the ordinary manner.</p> <p>4» It was not prejudicial for plaintiff’s attorney in his argument to the jury to refer to P. as a' banker from Iowa and to say of him that he either could not or did not intend to pay his just debts.</p> <p>5. Sec. 3323, B. S., does not require the submission of all the issues in an action to foreclose a mechanic’s lien to a jury for a general verdict, but only such designated issues as either party shall demand to have so submitted, and as to those only the verdict is conclusive; but all the remaining issues, or, where neither party requests the submission of specific issues, all the issues in the action, are to be determined by the court under the ordinary rules of equity, and the court may, of its own motion, submit to a jury such questions as it deems advisable for its own information and assistance.</p> <p>6. Errors in the instructions to the jury are unimportant in an equity case, where the court in the end must determine all the issues.</p> <p>7. A party to an action who has neither appeared nor asserted his rights has had his day in court and cannot object that his rights have been lost sight of, and are ignored in the judgment rendered.</p> <p>8. Answers of a special verdict will not be held uncertain if they are sufficiently certain when construed with reference to the issues in the action and the parties properly before the court.</p>

B. Bundy, Circuit Judge. Action to enforce a lien on lumber, under the laws of this state, for labor alleged to have been performed continuously from the 1st day of November, 1893, to the 31st day of July, 1894. The lien petition was filed on the 24th day of August, 1894. The action was commenced against Mike Drier, the employer. Thereafter the defendant Henry Laycoelc was, on application, made a defendant under sec. 3340«, S. & B. Ann. Stats.

<p>EekoR to review a judgment of the circuit court for Adams county: E. G. Siebeoker, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Monroe county: O. B. Wyman, Circuit Judge.</p> <p>On the 4th day of August, 1893, Mason A. Thayer, a banker at Sparta, Wisconsin, made an assignment to the defendant for the benefit of creditors. Thereafter one O. I. Newton, of whom the plaintiffs are successors in interest, filed a number of claims against the estate of Thayer in the assignment proceedings. Two of these claims only are in issue upon this appeal, the first being a claim for $2,445.21 for a balance alleged to be due Newton from Thayer upon account of a certain electric-light enterprise in which Newton and Thayer were jointly interested, and the second being a claim for $7,318.42 alleged to be due from Thayer to Newton on account of the payment of a $15,000 promissory note executed by Newton and two others to Louisa Withee and guaranteed by Thayer. As to the first claim above mentioned, it appeared upon the trial that the parties, Newton and Thayer, were jointly interested in the electric-light business, for furnishing electric light to the city of Sparta under a contract made between them April 17, 1889, the power being furnished by Newton, and the business being conducted and collections made by Thayer. Upon this business there had been no final settlement made between Thayer and Newton for the years 1891, 1892, and 1893, and it was admitted by the defendant that there was due from Thayer to Newton $1,686.66 on account of the three years’ business, but the balance of the claim was denied. The second claim for contribution upon the $15,000 note was denied in toto.</p> <p>At the close of the trial the court made findings of fact, in substance, that at the time of the assignment there was due from Thayer to Eewton, as his share of the proceeds of the electric-lighting business, the sum of $1,686.66, with $100* interest thereon, and no more. As to the claim for contribution, the court found that on or about September 1,1892, Eewton and 0. A. Jewett and E. E. Jewett made and delivered to one Louisa Withee their promissory note, dated on that day, for $15,000 and interest at six per cent., due six months from its date, and that Thayer guaranteed the payment of said note by written guaranty, and that the parties at the same time, and as part of the same transaction, made a contract under seal as follows:</p> <p>“Memorandum of agreement by and between O. I. Eew-ton, 0. A. Jewett, E. E. Jewett, and M. A. Thayer:</p> <p>“ Whereas, the above parties have executed a promissory note of even date herewith for $15,000, payable six months after date, for the use of the Sparta Iron Mining Company, of Wakefield, Mich.:</p> <p>“Eow, therefore, it is mutually agreed and understood, by and between the parties, that when said note becomes due and payable, and is not taken up and paid by said company, and it becomes necessary for the said parties to pay the same, then, and in that case, each party hereto shall pay on said noteywo rata according to the stock they now hold in said iron-mining company.</p> <p>“ Witness our hands and seals this 1st day of September, A. D. 1892.</p> <p>“E. E. Jewett. [Seal.]</p> <p>“ C. A. Jewett. [Seal.]</p> <p>“O. I. Eewton. [Seal.]</p> <p>“M. A. Thayer. [Seal.].”</p> <p>The court also found that said note was paid by said Newton, but that upon the trial no proof was adduced or offered to show the amount of stock held by the several parties to said contract in the Sparta Iron Mining Company, or establishing any liability thereunder. Upon these findings judgment was rendered allowing the claim upon the electric-lighting contract at the sum named in the findings and entirely disallowing the claim for contribution on the note. From this judgment the claimants appealed.</p>

<p>Practice: Guardian ad litem, duration of appointment: Appeal by, and filing undertaking: “ Mistake or accident: ” Amended return: Terms.</p> <p>1. Under sec. 3039, R. S. (limiting the time within which an appeal to the supreme court may be taken from a judgment in a civil action to two years from the rendition thereof, unless the judgment is against a minor or other person under disability, in which case the time during which such disability shall continue, not exceeding.ten years, shall not be reckoned a part of such two years), an appeal by a guardian ad litem of minor defendants will not he dismissed because not perfected within said two years, nor will leave to perfect the appeal be denied because not applied for within that time.</p> <p>2. The appointment of a guardian ad litem is for all the purposes of the action, including an appeal if the guardian deems such advisable, and continues until the disability ceases unless he is sooner discharged by the court. In the performance of his duty he may proceed without the advice or direction of the court, hut in such case is held responsible for a reasonably prudent and intelligent performance of duty.</p> <p>5. Where the proceedings of a guardian ad litem are obviously ill advised and against the interests of the infants, the court may interpose for their protection; hut such power should not be exercised where the objection is raised by the adverse party, or a general guardian appointed at the request of such party, apparently for the purpose of preventing a review of a judgment in his favor, and is based merely upon the opinion of such party or attorney or general guardian that the appeal is not meritorious, or that the interests of the infants can be better protected by such adverse party.</p> <p>4. The failure of a guardian ad litem to appeal from an adverse judgment, resulting from inability to furnish the required undertaking, is not such a “ mistake or accident ” as would give this court power to permit the undertaking to be filed here, under sec. 3068, R. S.</p> <p>5. In such a case, however, on a motion to dismiss the appeal for want of such undertaking, this court may retain the record for a reasonable time to enable the appellant to serve the undertaking, file it in the court below, and have the same certified by an amended return, and may postpone the final determination of the motion until the expiration of such time.</p> <p>6. Where the parties seeking such indulgence are minors and it satisfactorily appears that the delay will not prejudice the adverse party, justice does not require the imposition of terms.</p>

<p>•(1) Mutual benefit assoeiations: Incorporation. (2-6) Injunctions: De facto corporation: “Final decision:” Reference.</p> <p>1. Fraternal and beneficiary associations for furnishing life and casualty insurance and indemnity upon the mutual and assessment plan having been declared not to be life insurance companies within the meaning of the general"'insurance laws and to be exempt from their provisions, their organization as corporations seems to have been provided for under the clause of sec. 1771, B. S., authorizing the formation of corporations “ for any lawful business or purpose whatever.”</p> <p>2. In the absence of statutory authority a court of equity has no jurisdiction, at the suit of a private party, to -try and determine the question whether a corporation de facto is a corporation de jure, or to decree the forfeiture of its franchises, or its dissolution, or to exclude it from the exercise of its corporate franchises, the exclusive remedy in such a case being a direct proceeding at law in the nature of quo warranto at the suit of the state.</p> <p>3. A court of equity having no right to enjoin a de facto corporation from exercising its corporate franchises, could not enjoin its officers and agents from carx-ying on the general business of the corporation.</p> <p>4. An injunctional order requiring a corporation “to strictly refrain from doing or transacting any business as a fraternal or beneficiary coi-poration, order, or association, for the relief of its members and beneficiaries, furnishing life and casualty insurance and indemnity upon the mutual plan,” except with members enrolled prior to a certain date, at which time the name of the corporation had been changed, operated to suspend the business the corpora-ration was organized to transact, and having been issued by a court commissioner and without notice, in violation of sec. 2780, E. S., was properly vacated by the circuit court.</p> <p>5. The unauthorized payment to one fraternal and beneficiary corporation of dues and assessments belonging to another, or the imminent danger of such collection and payment, would not warrant an injunction, since the payment would be void.</p> <p>6. An order of the circuit court, vacating a temporary injunction issued by a court commissioner, is not a final decision that the plaintiff is not entitled to the injunction, such as would warrant a reference to ascertain the damages which the defendant has sustained by reason of such injunction, under sec. 2778, R. S.</p>

<p> Libel: Pleading: Mitigating circumstances: Construction: Appealable order: Making definite and certain: Discretion. </p> <p>1. In an action for libel, facts and circumstances even though unrelated which, while not proving the truth of the libelous charge, are connected with and bear upon it, and tend in some appreciable degree towards such proof, so as to permit an inference that the defendant was not actuated by actual malice, or which tend' to show that, although mistaken, the defendant yet believed, on reasonable grounds, the charge to he true, may be pleaded and proved in mitigation of damages, not only to the aggregate defa-. mation but to each defamatory charge as well.</p> <p>2. -The’defendant in sucha caso being precluded from proving mitigating circumstances which he has not pleaded, it is error to strike out such matters from the answer, unless it is clear that under no possible circumstances could they have the bearing claimed for them.</p> <p>3. The question whether facts and circumstances are properly pleaded in mitigation of damages must be determined by an examination of the libelous publication as a whole, giving each word and accusation its proper weight and consequence in view of the whole writing and the sense in which the writer intended it.</p> <p>4. A publication charging a chief of police with dishonesty in general and in detail, and adding that he “ has in manifold ways proved his absolute unfitness for the office which he fills, or for any other office of a public nature where honor counts for aught,” is a charge of general unfitness for office, and not merely a charge of general official dishonesty.</p> <p>5. An order striking out matters pleaded in mitigation of damages in an action for libel involves the merits of the action or some part thereof, and is therefore appealable under subd. 4, sec. 3069, R. S.</p> <p>6. An order directing a pleading to be made more definite and certain is discretionary, and is not appealable unless there has been an abuse of discretion.</p>

G. SiebeckeR, Circuit Judge. Action for damages for an alleged breach of an express warranty of the soundness of a horse. A Mr. Hall, as agent for defendant, with full-authority so to do, traded a horse to plaintiff.

<p> Mutual benefit associations: False statement as to relationship of beneficiary: Forfeiture: Waiver. </p> <p>The forfeiture, if any, of a mortuary certificate in a mutual benefit association by reason of false statements that the beneficiary named therein was the wife of the assured is held to have been waived, where it appeared that the association was informed by the assured two weeks before his death that such statement was erroneous; that the association did not reply to the letter until ten days after it was written and then only requested that the certificate should be returned for correction; and that the association, ten days after the death of the assured, received and retained payment for an assessment made three weeks before his death.</p>

G. Siebeokee, Circuit Judge. This is an action in equity, commenced June 3, 1895, against the defendant, as commissioner of insurance of the 'state, to perpetually enjoin him from revoking a license issued by him to the plaintiff authorizing it to transact business within this state. The facts were not in dispute upon the trial, and were settled by stipulation.

G. Siebeokee, Circuit Judge. This was an application for a peremptory mandamus. Certain proceedings were instituted before the circuit court for Columbia county to incorporate as a village certain territory lying wholly within the town of 'Wyocena, in that county, to be known as the village of Pardeeville, pursuant to secs. 854G859, S. & B. Ann. Stats., and the acts amend-atory thereof.

<p>Appeal'from a judgment of the circuit court for Dane -county: R. G-. SiebeokeR, Circuit Judge.</p> <p>Action to recover damages for the destruction by fire of 'plaintiff’s warehouse and store building attached thereto, which occurred on the 22d day of July, 1893, alleged to have been caused by negligence of defendant’s employees. The warehouse was forty feet long by thirty feet wide, located north of one of defendant’s side tracks at Spring 'Green, Wisconsin, and nearly parallel with such track. The southwest corner was about seven feet, and the southeast -corner about fourteen feet, from the center of such track. It was a wooden, frame structure, eighteen feet high to the top plate, with a gabled roof, one-third pitch, lengthwise of the building. There was a basement about eight feet deep, from which, in the northwest corner, there was an elevator :shaft four and one-half by five feet, extending up to and ■ending in a cupola constructed wholly on the north side of the ridge of the roof. The cupola was twelve feet wide by fourteen feet long. The sides extended about three feet •above the ridge of the warehouse. It was covered by a .gabled roof, with ends towards the north and south. The top was about thirty-seven feet from the ground. In the •south gable, towards the side track, was a window which, there was evidence tending to show, was open at the time ■of the fire, and was about thirty feet above and twenty-five feet north of the center of the track. The sides of the warehouse and the cupola were made of boards put on perpendicular, with battens over the cracks, and the whole painted. North of the warehouse, about three feet, was the south wall of a brick store building, the walls of which -extended several feet above the plate of the warehouse. The -space between the buildings was made into a covered ■alley connecting them together. The alley was floored at the bottom with pine boards placed about on a level with the floors of the buildings. Sixteen feet above the lower floor was a ceiling, which also formed a second floor. About eight feet above such second floor, and six feet above the .plate of the warehouse, was a covering of boards extending from the wall of the store building out a little over three feet. On the west end, the alley was closed. On the east end, it was closed up to the second floor. On the north, it was closed by the side of the store building. On the south, it was closed from the west end east to the cupola. From the southeasterly corner of the cupola east, it was left open, to admit light to windows in the upper story of the store building. On the edge of the roof of the warehouse, next to the alley, was placed a board, projecting up so as to form a gutter, the base of which was lined with tin. The openings in the warehouse were as follows: On the side toward the railway track, in the basement, there were three open windows. On the first floor, about the middle, was a door. There were also three'grain spouts from bins on the second floor, closed at the lower ends, outside the building, by slides. On the east end, in the basement, were two open windows, and a way, constructed to admit of taking barrels in and out, which was covered by a slanting door. On the first floor, about the center, was a door. Forth of that was a window, and there was also a window opening into the alley. On the south side of the door was an opening for taking in corn, which was closed by a sliding door. In the gable, near the roof, was a window, and in the east side of the cupola, near the northeast corner, was a window. On the north side, on the lower floor, near the middle, was a door leading from the alley, and near the west end of the alley was another door from the alley. On the second floor of the alley was a door leading from, such floor into the warehouse on a level -with the plate. In the west end of the gable was a window. The sides of the elevator shaft, on the outside of the posts forming the framework of it, were sheathed with pine boards, except where the openings existed hereafter mentioned. The north side was formed by the side of the warehouse; the west, by the side of the wool room; the south, by the side of the buckwheat bin; and the east side, between the level of the plates and the second floor, by the oat bin. Inside the elevator was sheathed with seven-eighths inch flooring on the north, south, and west. On the east side it was open in the basement, on the first floor, and above the plates in the second story. On a level with the top of it where it was so closed on the east, there was a passageway leading from the opening on the second floor of the alley to the center of the warehouse, and there connecting with a passageway, running at right angles, lengthwise of the building from end to end, on a level with the plate. All of the upper story, except that part occupied by the elevator shaft, was divided into bins, the top of which was on a level with the passageway. On the south side of such way were three bins of equal size, built hopper shape, in each of which there was some wheat at the time of the fire, two being nearly full. In the northeast corner was a corn bin partly filled with corn. The balance of the space on that side, up to the elevator shaft, was an oat bin, about half full of oats. The space between the elevator shaft and the wheat bin in the southwest corner was a small bin for buckwheat, which was empty. West of the elevator shaft, occupying the balance of the upper story of the building, in the northwest corner, was a wool room, nearly empty, which was closed in on all sides from every other part of the building. The lower story was, to some extent, partitioned off, but there was no partition north of the center of the floor and east of the elevator shaft. On the day before the fire the elevator was thoroughly cleaned and dusted out, from the cupola down, except the basement.</p> <p>The building was in an exceedingly dry condition, owing to a long-continued period of excessively hot, dry weather. The wind was blowing from the direction of the side track toward the building. The situation being as described, at 7:30 p. m. on the 22d day of July, 1893, one of defendant’s freight trains was run in on the side track till the locomotive stood alongside of the warehouse. "While it was in that position, there is evidence tending to show that it was so operated by defendant’s servants that coals of fire and ashes were allowed to escape from the firebox to the ground, and sparks in considerable quantities to escape from the smokestack. About 8:15 p. m. the locomotive was backed away from the building, at which time, there is evidence tending to show, the engine was operated in such a way that the wheels slipped on the track, and that sparks were emitted from the smokestack in large and unusual quantities, and of an unusual size, some appearing, to one looking at them through the darkness, to be as large as a man’s thumb, and thrown to a height of thirty to forty feet; that they were carried by a light wind toward the warehouse, some of them settling on the roof and others passing over it. There is a very little conflict in the evidence respecting the time when the freight engine backed away from the warehouse. It was not later than 8:17 p. m. The passenger train from the west was due at 9:49 p. m. On the evening in question it was late, and, according to the evidence, did not arrive earlier than 9:55 p. m. Witness J. Gr. Keller, while on his way to the 9:49 p. m. train, heard the alarm of fire first given. He testified that the train came from the west a few moments thereafter. There is some conflict in the evidence respecting the exact time when the fire was first discovered, but all the evidence shows that it was a short time before the arrival of the train from the west, and about the time it was due, viz. 9:49 p. m. The evidence is conflicting respecting the location of the fire when first discovered. There is considerable evidence tending to show that it was in the lower story of the warehouse; also, evidence tending to show that it was first seen in the lower part of the alley, looking through the window in the east end, and that soon thereafter it was seen in the upper part of the building. A large amount of other testimony was given tending to show that the fire started in the lower part of the structure, that it was very small when first discovered, that very soon after the discovery the alarm was given, and that soon the-whole building was enveloped in flames.</p> <p>The building and contents, and the store building attached, with part of its contents, were destroyed. At the close of the evidence, on motion of counsel for defendant, the court directed a verdict in its favor, in the main upon the following grounds: (1) That the evidence is insufficient to show that the fire was caused by the defendant; (2) that the evidence is insufficient to show that defendant’s engine was not in a proper state of repair at the time of the fire; (3) that the evidence was insufficient to show that the engine was improperly operated. Plaintiff’s counsel then moved the court $o set aside the verdict, and for a new trial, upon the grounds, among others, that the court erred in the omission and rejection of testimony, and that the verdict was contrary to the law and the evidence. The motion was overruled, and judgment was entered in favor of the defendant, from which this appeal was taken.</p> <p>They contended, inter alia, that it was a remarkable conclusion that after plaintiff had traced sparks the size of a kernel of corn or hazelnut or even larger, from the defendant’s engine into the very window of the warehouse, and after he had negatived every other possible cause for the origin of the fire, he was not entitled to have the jury determine whether the engine had in fact set the fire. The conclusion is rendered none the less remarkable by the fact that an hour had passed before the fire was discovered. It is a matter of common knowledge and observation that a spark is liable to slumber for hours before breaking into a blaze. The books are full of cases in which it has been held, upon evidence infinitely weaker than the testimony here, that the question of the cause of the fire was properly one for the jury. See cases cited in the opinion, and also Abbot v. Gore, 74 Wis. 509, 513; Wheeler v. If. Y. G. <& E. Ii. II. Go. 67 Ilun, 639; Greenfield v. O. de If. W. R. Go. 83 Iowa, 270; Johnson v. 0. c& If. W. Ii. Go. 77 id. 666; Enion P. Ii. Go. v. Ee Busk, 12 Colo. 294, 38 Am. & Eng. E. Cas. 321; Butcher v. V. V. & G. L. R. Go. 22 id. 644; Enion P. R. Go. <u. Keller, 36 Neb. 189; Woodson v. M. <& St. P. R. Go. 21 Minn. 60, 63; Karsen v. M. c& St. P. R. Go. 29 id. 12; White v. O., M. & Si. P. R. Go. 1 S. Dak. 326.</p>

<p> Municipal corporations: Limitation of power to contract debts: “Lease” of waterworks: Constitutional law. </p> <p>1. A contract with a city for the construction of waterworks, providing that the constructors might issue bonds to a certain amount on the plant; that when the works were completed they would lease them to the city in consideration of certain yearly rentals; that they might assign the lease to the mortgagees or trustees for the benefit of the bondholders; that the city should thereupon take possession and assume the management and operation thereof, pay all taxes and assessments thereon, keep the same in repair, and pay all damages arising from their maintenance and operation; that all rentals in excess of interest on the bonds should be at once applied to the cancellation and payment thereof; and that upon payment of the rentals as therein prescribed the plant should at once pass to and become the property of the city without any further conveyance or contract whatever,— is held to be an indirect method of expressly agreeing to pay the principal and interest to' become due on the bonds; and, the obligation assumed being in excess of the constitutional limit of indebtedness, the contract is void.</p> <p>2. In determining whether a municipal indebtedness is in violation of sec. 3, art. XI, Const, (limiting the right of municipal corporations “ to become indebted in any manner or for any purpose ” to an amount in the aggregate exceeding five per cent, of the value of the taxable property therein at the last assessment), account must be taken of all liabilities for the payment of which there is no money or assets in the treasury, or current revenues collected or in process of collection.</p>

<p>Appeal from a judgment of the circuit court for Outagamie county: John Goodland, Circuit Judge.</p> <p>Action for breach of the covenant of title in a deed of certain real estate. On the 31st day of October,' 1851, George W. Lawe was the owner in fee of certain lands situated in the city of Kaukauna, Outagamie county, Wisconsin, including the premises in question. On that day he caused to bo made a plat of said lands, subdividing the same into lots and blocks, and on the 31st day of October thereafter caused such plat to be recorded in the office of the register of deeds of such county for the purpose of establishing a legal town plat of the premises, pursuant to the provisions of ch. 41, E. S. 1849. On such plat the premises in dispute, except lots 5 and 14, are designated as “Public Square.” Immediately after the plat was recorded, Lawe commenced selling lots, describing the same according to such plat, and it was, for all purposes, recognized by him and all persons claiming under him, and by the public as well, as a valid town plat, up to the time of the commencement of this action. On the 29th day of May, 1878, the title to the premises in dispute being in Lawe, except as affected by such plat, he joined with Meade and Black in making and placing on record a new plat covering the same and other lands adjoining. Such new plat was named “ Lawe, Black & Meade’s Addition to Kaukauna.” The making and recording of such new plat purported to be for the purpose of subdividing into lots and blocks the premises therein described, and making a legal plat thereof under the laws of the state of Wisconsin respecting the subject. On such new plat, what was designated on the plat of 1851 as “ Public Park,” with a strip on the northwest side thereof sixty feet wide, in all making a tract 300 feet by 240 feet, was designated as “ Lawe’s Park.” Such park, together with 240 feet by 120 feet on the northwesterly side thereof, subdivided into eight lots, each 120 feet by sixty feet, was designated as “ Block 21.”</p> <p>Prom the time of the recording of the plat of 1851 till the 15th day of July, 1890, Lawe continued in the actual possession of the premises, the same being actually inclosed and used by him throughout substantially the whole period. The public, during such period, asserted no claim thereto, except in so far as the fact that, from the platting of 1851 till that of 1878, the premises were not assessed for taxes, maybe held as a recognition of the existence of public rights therein. After such second platting, down to, and inclusive of, the year 1890, the premises were assessed for taxation, and taxed as Lawe’s property, and the taxes were paid each year by him, except for the year 1878, till he sold the property in 1890, as hereinafter stated. The city of Kaukauna was incorporated by ch. 31, Laws of 1885, by which the aforesaid plats were expressly adopted, and provision was made for an official renumbering of lots by said city, and a replatting and remapping of the premises covered by such plats. Thereafter, pursuant to such power, such proceedings were taken by or under the direction of the common council of said city that on the 1st day of May, 1890, an official plat of the premises was recorded, by which what had theretofore been known as “Lawe’s Park” was subdivided into lots numbered 1 to 18, inclusive, of block 21. In 1885, soon after the organization of the city of Kaukauna under its charter, by order of the common council of such city, Lawe constructed a sidewalk along one side of such park. During the spring and summer of 1890, prior to the making of the deed hereinafter mentioned, Lawe incurred some expense in taking out stumps and otherwise improving the premises. On the 15th day of July, 1890, by warranty deed with full covenants, he conveyed the property to plaintiff. On the 17th day of July thereafter, by order of the common council of said city, such premises Avere-stricken from the assessment roll for the year 1890, for the reason that the same had been purchased for school purposes. A purchase for such purposes does not definitely appear. ¥e are left to infer that in some way the conveyance to plaintiff was for the benefit of the corporation for such purposes. In the month of October, thereafter, the-city of Kaukauna, by its duly authorized officers, claimed the premises as a public park, by virtue of a dedication thereof by the plat of 1851, and took actual possession of the same under such claim, and so continued up to the commencement of this action.</p> <p>This action was brought for breach of the covenants of title upon the ground that the claim of the city to the premises, as a public park, was valid, and that Lawe was not the owner thereof at the time he conveyed the same to the plaintiff. The trial court found that at the time of the making of such deed Lawe was the owner and seised in fee of the premises in dispute, and that plaintiff was such owner and was so seised under the aforesaid deed at the time of the commencement of this action, free from any claim of the city of Kaukauna, and ordered judgment accordingly, dismissing the complaint. Exceptions were taken to raise the questions discussed and referred to in the opinion. Judgment was rendered in accordance with the aforesaid order, and plaintiff appealed.</p> <p>contended, inter alia,. that the legislature cannot alien or dispose of property dedicated by a donor to the city in trust for the public. Warren v. Lyons Gity, 22 Iowa, 351; Dillon, Mun. Oorp. (4th ed.),. § 651, and notes; Hew Orleans, M. c& G. R. Go. v. Hew Orleans, 26 La. Ann. 478; Hewarle v. Stoclcton, 44 H. J. Eq. 179, 185, 186; Simplot v. G., M. cb St. P. R. Co. 16 Fed. Eep. 350. The fact that the property was assessed to, and taxes paid thereon by, Lawe does not affect the rights of the public therein, and especially is this true under all the circumstances appearing in the case. Lemon v. Hayden, 13 Wis. 159; Rhodes v. Brightwood, 145 Ind. 21, and cases cited;. San Leandro v. Le Breton, 72 Cal. 170; Ln re Commlrs of Public Paries, 53 ILun, 556; Ellsworth v. Grand Rapids, 27 Mich. 250; Getchell v. Benedi-ct, 57 Iowa, 121; Gilman v. Milwaukee, 55 Wis. 328, 334, 335, and cases cited; Angelí, Highways, § 321; St. Louis v. Gorman, 29 Mo. 593, 77 Am. Dec. 586; Thayer v. Boston, 19 Pick. 511, 31 Am. Dec. 157, 161; Prather v. Lexington, 13 B. Mon. 559, 56 Am. Dec. 585,. 588; Lorillard v. Monroe, 11 H. T. 392, 62 Am. Dec. 120,121.-</p>

<p>Appeal from a judgment of the circuit court for Outagamie county: John Goodland, Circuit Judge.</p> <p>This was an action involving less than $100, commenced in justice court, and appealed to the circuit court for Outa-gamie county, where it was tried, and the complaint was dismissed with costs. Thereupon the plaintiff prepared and settled a bill of exceptions, and appealed to this court, the trial judge having made tho following certificate, in attempted compliance with ch. 215, Laws of 1895:</p> <p>“To the Supreme Court of the State of Wisconsin:</p> <p>“I, John Goodland, judge of the Tenth judicial circuit of said state, having presided at the trial in said cause at a regular term of said circuit court, begun and held at the courthouse in the city of Appleton, in said county and state, on the 15th day of April, 1895, at which said term judgment in said cause was rendered in favor of the defendant, and against the plaintiff, do hereby certify that the case necessarily involves the decision of a question and point of law of such doubt and difficulty as to require the decision of the same by the supreme court. I further certify that the question and point of law are as follows: That the plaintiff sets up in his complaint that the plaintiff, being indebted to the defendant in the sum of $82.97, made and signed his certain check or order on the First National Bank of Appleton, Wisconsin, for said sum, payable to the defendant or bearer, and sent said check by a messenger to said defendant. That afterwards, and within a short time after the sending of said check, defendant came to plaintiff, and represented that he had not received said check or order, and requested the plaintiff to give him, said defendant, said sum of $82.97 in cash, and promised and agreed with plaintiff that if plaintiff would then pay him (defendant) the amount of said indebtedness, to wit, the sum of $82.97, at that time, in money, he (said defendant) would return said check or order to plaintiff as soon as he (said defendant) should receive it. That thereupon, and relying upon said promise of defendant, and in consideration thereof, plaintiff paid defendant said sum of indebtedness in cash. That defendant did thereafter receive said check or order, but neglected and refused to return the same, and used and disposed of it as shown by the testimony, and the check or order was protested for nonpayment, and the plaintiff paid said check. That the issues in said cause were tried before the court and a jui’y, and a special verdict rendered, as follows: ‘First question. Did the plaintiff pay to the defendant the face value of the check in question, to wit, the sum of $82.97, on or about the 18th day of July, 1891, at the plaintiff’s house, in the town of Greenville? Answer. Yes. Second question. If you answer the last question “Yes,” then say whether the consideration for the payment of said money was the promise on the part of the defendant to return to the plaintiff said check. Answer. Yes.’ On this special verdict the plaintiff moved for judgment as demanded in the complaint, which motion was denied. And the defendant moved for judgment in his favor, notwithstanding the verdict, and the court granted the motion, and rendered judgment accordingly, on the ground that the payment of the check in question, which the defendant agreed to return and neglected so to do, was a voluntary payment, and, by reason thereof, the plaintiff cannot maintain this action. And the question and point of law are: First. Was the payment of the check a voluntary payment? Second. Can the plaintiff maintain this action on the facts stated in the complaint? Third. Is the plaintiff entitled to judgment as demanded in the complaint, on the verdict found by the jury ? ”</p>

<p>Appeal from a judgment of the circuit court for Outagamie county: Johkt Goodland, Circuit Judge.</p> <p>This was an action to recover the damages sustained by the plaintiff for the death of his horse, and breaking and injuring his harness and wagon, while said horse and wagon were driven in the nighttime on and along an alleged defective, unsafe, and dangerous highway of the defendant town, it being alleged that the horse ran against a barbed-wire fence that had been erected upon and across the highway, about forty feet southwest of the center of section 7 in said town. The answer denied that the locus in quo was at the time, or for a long time prior thereto had been, a public highway, and alleged contributory negligence on the part of those driving and having the horse in charge. At the trial it was admitted that from the center of said section 7 a highway ran east and west, and that another highway from the north intersected it at right angles at such center, and that from the south line of the east and west highway, at said point, there had been a highway leading southwesterly, but that it had been vacated about a year prior to the accident; that the wire fence was on the south side of the east and west road. The evidence was to the effect that the plaintiff had let the horse and buggy to one Ellingboll, to take a ride, and next saw the horse dead, by the wire fence across the road running southwest from the corner, where the horse was killed; that the road was an old beaten road, and to all appearances a main traveled road; that the road to the right was traveled but little, and was new, and had the appearance of a newly-traveled highway; that the road where the horse was killed was an old, worn-down road, worn out as teams would wear it out, and there was a down grade in approaching this point from the north. The plaintiff 'testified that he had been over the road many times, and never knew that there was a wire fence there before the horse was killed; there was no railing, fence, or harrier of any kind between the wire fence and the road coming from the north; that the posts of the wire fence were twelve or thirteen feet apart; and that there was no post in said traveled track; but there was evidence to show that there was a post on the left-hand side of the roadbed,, about halfway between the left-hand wheel track and the center of the road.</p> <p>Ellingboll testified that he had driven north of that point, and in coming home, between 11 and 12 o’clock that night, two young ladies were riding 'with him; one sat with him on the buggy seat; the other was sitting on her knee and on one of his knees; that she was driving, at an ordinary trot, about five or six miles an hour, and the night was quite dark; that he had never been over the road before; that there was nothing about the appearance of the road, or anything, to indicate danger of any kind; that they were looking out at the time, and he was able to distinguish the road, but not the wires; that the horse struck the wires nearly square, slid off to the right, and the wires cut his throat, and the wheels and harness were damaged; that they were not making much noise, but were singing at the time. The young lady who was driving testified that she was looking out to see where she was driving; that she was able to see the roadbed right through beyond, and could see no obstruction; could see the posts, but thought the road ran right along. It was proved that Mr. Rice, a member of the town board, put up the wire fence several weeks before the accident. One Tuttle, a witness for the plaintiff, testified that the east and west road had a well-traveled, plainly-defined track, and had been in use a number of years; that the principal travel was on the other road, until shut up; that the road going south had a hard, w’ell-defined track, as much as. it had had during the time it was traveled, except the absence of wheel marks, which would not be noticed in the nighttime. At the close of the testimony the court directed a verdict in favor of the plaintiff; and, the jury having assessed his damages at $250, a verdict and judgment were-eutered accordingly, from which the defendant appealed.</p> <p>to the point that under the evidence the question of contributory negligence ought to have been submitted to the jury, cited Bloor v. Delafield, 69 "Wis. 273, 279; Spaulding v. Sherman, 75 id. 77; StuoJce v. M. <& M. R. Go. 9 id. 203, 214, and cases cited; Ward v. M. cé St. P. R. Go. 29 id. 144; Potter v. G. & H. W. R. Go. 21 id. 373; Wilds v. II R. R. Go. 24 K Y. 430, 434; Johnson v. U. R. R. Go. 20 Ú. Y. 65, 73; Siegel v. M. á W. R. Go. 79 Wis. 404.</p>

D. Marshall, Circuit Judge. This is an action of replevin to recover for several car loads of cedar timber, which was, at the time of the commencement of the action, loaded upon cars belonging to the Eastern Railway Company of Minnesota, at Superior, in this state. The timber had been wrongfully cut and removed from the plaintiff’s land by one R. E. Lynn and others, his servants and vendees, who were joined as defendants with Lynn.

<p>Appeal from a judgment of the superior court of Douglas county: Chables Smith, Judge.</p> <p>On the 28th day of January, 1892, John W. Lundale, being indebted to plaintiff, and also to defendant, gave to the latter, to secure the payment of its claim, a chattel mortgage on. his stock of goods. The business was transacted on the part of defendant by J. E. Phalen, as its agent. After the mortgage was given and filed, Phalen called on plaintiff, and verbally guaranteed that, if it would forbear commencing proceedings which it was about to take to enforce collection of its claim, the defendant would protect plaintiff up to the amount of $169.91. Plaintiff agreed to so forbear, and thereafter wrote defendant, stating that Phalen had guaranteed the claim, but not stating upon what consideration, and requested that Phalen’s action in making such guaranty be confirmed. Defendant replied by letter, agreeing to protect plaintiff for the amount Lundale was owing to it, $169.91, but did not state the consideration for such agreement, or that there was any consideration. This action was brought on such guaranty. A special verdict was rendered to the effect that Phalen, about August 3, 1892, promised to pay plaintiff its claim against Lundale in' consideration of plaintiff’s refraining from taking any proceedings against Lundale for the collection of such claim. Thereupon the defendant moved the court, among other things, for judgment, for the reason that the alleged contract of guaranty was void under the statute of frauds. The motion was overruled. Defendant also moved that the court set aside the verdict, and for a new trial. Judgment was thereupon rendered for plaintiff, and defendant appealed.</p> <p>To the point that the resulting advantage to the promisor must be the object of the promise, and the mere fact that an advantage may incidentally result to him from his oral promise to pay the debt of another is not sufficient to take it out of the statute of frauds, they cited Gla/pja v. Webb, 52 Wis. 638; TIoile v. Bailey, 58 id. 450; Weisel v. Sjgence, 59 id. 304; Willard v. Bosshard, 68 id. 454; HooTcer v. Bussell, 67 id. 257; Bray v. Pareher, 80 id. 16.</p> <p>The contended that the consideration of defendant’s promise was the refraining from doing some act for the benefit of such defendant. It made a new contract betiveen the promisor and promisee which need not be in writing. Dyer v. Gibson, 16 Wis. 558; Young v. French, 35 id. Ill, 118; Hew-ett v. Ourrier, 63 id. 392; Mallory v. Gillett, 21 N. T. 415.</p>

<p> Mechanics’ liens: Amending claim and notice to owner: Description of property: Pleading: Joint general demurrer. </p> <p>1. The description of the property in a claim for a mechanic’s‘lien may be amended under sec. 8320, S. & B. Ann. Stats., by order of the court, in the same manner as pleadings ai'e amended, even after the expiration of the six months during which such a claim may be filed under sec. 3318, especially where the claim is not so •defective as to be an absolute nullity and the rights of third parties have not intervened.</p> <p>2. The description of the property in the notice to the owner of a claim for a subcontractor’s lien cannot be amended after the expiration of the sixty days during which such a notice can be served, the object of such notice being to enable the owner to protect himself by withholding the amount claimed from the principal contractor.</p> <p>3. A joint general demurrer to a complaint for insufficiency on behalf of several defendants is bad, if the complaint states a cause of action against any one of them.</p>

D. Marshall, Circuit Judge. The action was for the conversion of four horses, which plaintiff claimed under a bill of sale from one Wells, the former owner thereof.

D. Maeshall, Circuit Judge. This is an action of trespass for breaking and entering the plaintiff’s close, describing it, situated in Eau Claire county, on the 10th day of July, 1890, and on divers other days, etc., and then and there, with scythes, mowers, and reapers, etc., unlawfully cutting' and carrying away grass, hay, and grain of the plaintiff then standing and growing thereon, namely, ñas on two acres of land, potatoes on one and one-half acres, corn growing on…

Action for injury to a span of mules by the defendant’s train at a station called South Eange. The negligence claimed is that at the place of the accident the defendant’s road was unfenced, and that the train was run at great speed and without warnings of its approach. The defense claimed that the place of the accident was depot grounds which it was not required to fence, and that the mules had strayed upon the defendant’s right of way, and were trespassers there.

<p>Appeal from a judgment of the superior court of Douglas county: CHARLES Smith, Judge.</p> <p>On the 23d day of January, 1893, plaintiff, by written lease, let to the defendant McCarty certain buildings in the city of Superior, Wisconsin, for the term of three years, at an annual rent of $1,500, payable in monthly instalments of $125 each. The lease contained a prohibition against assigning or underletting without written consent of the lessor. After the lessee had occupied the premises under the lease for a considerable length of time, he sold or contracted to sell his business; and desiring to have the lease transferred to .one Walker, who purposed continuing such business, he called on Eogers & Euger, who were attorneys for plaintiff, for the purpose of securing the latter’s consent to such transfer. Such agents wrote upon the back of the lease the following: “I hereby give my consent that said William H. McCarty, lessee herein, may sublet the premises herein described to one John Walker, of Superior, Wisconsin, holding said John Walker responsible to me for the rent and due performance of all provisions in this lease specified, on the terms and conditions therein specified. In case said Walker shall violate or fail to comply with any of the provisions herein, I hold the said William McCarty as still responsible to me, as provided in said lease; but, if the said' Walker shall comply with all the provisions of said lease, the said William McCarty not to be held responsible.” Such agents thereafter sent the lease to the plaintiff, who signed such indorsement, and returned the same to them. Thereafter Walker signed the following indorsement made on the lease: “ I hereby accept the terms and conditions of the said lease, and agree to become tenant under the same and directly responsible to the said Allen P. Lovejoy for the proper fulfillment of the same.” Thereafter he took possession of the premises, and paid rent to the plaintiff for a considerable length of time; then ceased to pay; and this action was brought to recover the past-due rent. Mr. Ruger testified that defendant made no objection to the consent signed by Lovejoy. Defendant testified that he refused to turn the premises over to Walker, unless he was released from all obligation to Lovejoy, and that thereupon H. L. Mossier agreed to guarantee the payment of the rent by Walker, in consideration of which Ruger consented to such release; that, with that understanding, defendant concluded the sale of his business, and delivered possession of the premises to Walker. As to whether there was an agreement between Ruger and defendant that the latter should be released from his obligation to Lovejoy, and the premises were surrendered to Walker pursuant thereto, the evidence is conflicting. At the close of the evidence plaintiff moved the court to direct a verdict in his favor for the amount of the unpaid rent, which was granted. Judgment was entered on the verdict so directed, and the defendant appealed.</p>

<p>Appeal from a judgment of the superior court of Douglas county: Chaeles Shith, Judge.</p> <p>The case is sufficiently stated in the opinion.</p>

<p> Mortgages: Priority: Recording: Assignment: “Purchaser:” “Conveyance.” </p> <p>1. Where a mortgage is simply an extension of a pre-existing purchase-money mortgage, and such fact is known by another mortgagee who voluntarily accepts his mortgage knowing that it was intended to be and was in fact a subsequent lien, the former will be the prior lien, although the mortgages were apparently contemporaneous in execution and the latter was first recorded.</p> <p>2. An assignee of a mortgage is a “purchaser,” and the assignment is a “ conveyance,” within the meaning of secs. 2241, 2242, R. S. (providing that every conveyance of real estate which shall not be recorded as provided by law shall be void as against any subsequent purchaser in good faith whose conveyance shall be first duly recorded)-, and in order that the assignee’s lien may take precedence over another mortgage, which although a prior lien was not first recorded, the assignment must have been recorded prior to the recording of the latter mortgage.</p>

<p> Bailroads: Personal injuries: Custom: Evidence: Negligence: Proximate cause: Special verdict: Instructions: Contributory negligence: Immaterial error. </p> <p>1. In an action against a railroad company for personal injuries received by the foreman of a switching crew while attempting to chain together cars, the apparatus for coupling which had been broken, the customary way of making such a coupling in that yard is a proper fact to be considered in connection with other surrounding circumstances in judging of the conduct of persons at work in the yard. It is not a custom prevailing in a particular trade or business offered for the purpose of fixing, controlling, or defining contract relations, and hence need not be established beyond a reasonable doubt.</p> <p>2. Evidence in such a case that the foreman of another switching crew, after being warned that cars were to be chained on a certain track, deliberately ordered a train to be backed against the cars standing on that track so as to move them, was sufficient to take the question' of negligence to the jury.</p> <p>3. The question whether the .foreman of the second crew, after being notified that plaintiff was going to chain up the cars, did “ what a man of ordinary intelligence and prudence, conducting the business carried on by the defendant and in [his] place and stead, would not have done in the light of the attending circumstances,” was ambiguous and did not throw light upon any material issue. A refusal to submit it, and others depending upon it, for special verdict was therefore not erroneous.</p> <p>4. A failure to place before the jury, either in the submission for a special verdict or through an instruction, the principle that a negligent act is not the proximate cause of an injury unless a person of ordinary intelligence and prudence under similar circumstances ought to have expected that an injury would occur by reason of his negligence, is held not to have been error in the absence of a specific request, where the jury were required to find whether the alleged negligent person had reason to apprehend that his actions in the premises were liable to result in injury to the plaintiff, and instructed to find first whether such person was guilty of negligence which was the proximate cause of plaintiff’s injury, and then to determine whether that negligence was such that he had reason to apprehend that it was likely to result in such injury.</p> <p>5. Nor was it error to refuse to submit questions such as “ Did the plaintiff have control over the means, time, and manner of chaining the cars?” “Did the plaintiff have control over the means with which and the manner in which he should be protected while chaining the cars ? ” since they referred to evidentiary facts not necessary to be decided in the verdict.</p> <p>6. An instruction that it was for the jury to say whether or not, in view of all the precautions which plaintiff had adopted and in view of all the circumstances surrounding him, he had reason to apprehend injury while chaining said cars, and that “his want of ordinary care, if it existed, must have been of such a nature as to proxiinately cause or contribute to the injury of which he complained, and of such a nature as to charge him with the duty of apprehending the cousequences of such want of ordinary care,— such a nature that a reasonable, man under like circumstances would have apprehended the danger which followed,” is held to have sufficiently covered the question whether the plaintiff took such precaution for his own safety as men of ordinary intelligence and prudence would have taken under the circumstances. .</p> <p>7. The sufficiency of the evidence to support an answer of the special verdict is immaterial where the question and answer do not dispose of any material issue.</p>

<p>Beported from the county court of Winnebago county: O. D. Cleveland, Judge.</p> <p>Emil Wendler was prosecuted before the county court of Winnebago county for catching fish in the waters of Lake Winnebago with a gill net, contrary to the provisions of subd. 1, sec. 35, ch. 221, Laws of 1895. Before trial on the merits, he moved to quash the complaint, on the ground that ch. 221, aforesaid, was not a valid law, and never passed the legislature. He also filed a plea in abatement to the same effect. The issue arising upon the plea in abatement was tried, the defendant offering in evidence copies of two bills on file in the office of the secretary of state, the first being entitled “ Amended and corrected substitute for Ho. 258 S, a bill to revise, amend, and consolidate the laws of the state relating to game and its preservation, fish and the preservation and propagation thereof; ” the second being entitled “ A bill to revise, amend and consolidate the laws of the state relating to game and its preservation, fish and the preservation and propagation thereof.” Each document is duly certified by the secretaiy of state as having been “ compared with the original bill, and to be a true copy thereof, and of the whole of such original.” The defendant also offered in evidence the senate and assembly journals for the session of 1895, and called attention to all entries in either journal relating to bill Ho. 258 S. The motion to quash was denied, and the plea in abatement overruled, and the defendant excepted; whereupon the defendant pleaded “Hot guilty,” and the trial proceeded on the merits. A verdict of guilty was rendered, whereupon the defendant moved to set aside the verdict and for a new trial, and at the same time moved in arrest of judgment; both motions being founded on the same ground as the plea in abatement. Thereupon the county judge reported the case to this court, and submitted to the court the following questions for decision: “First question. Did ch. 221, Laws of 1895, pass both houses of the legislature,. so as to become a valid law? Second question. "Was the law known as ch. 221, Laws of 1895, ever enacted and passed by the legislature of the state of "Wisconsin? Third question. Oan any judgment be pronounced or rendered upon said verdict of guilty in this action? Fourth question. Oan the defendant be sentenced under any of the provisions of ch. 221, Laws of 1895? Fifth question. Did the court err in refusing to grant defendant’s motion to quash the complaint, and in overruling the defendant’s plea in abatement? Sixth question. If defendant’s motion in arrest of judgment should be granted, can defendant properly be tried again for said offense charged against him ? ”</p> <p>They contended, inter alia, that, the senate having passed the engrossed bill by a yea and nay vote, the constitution ivas satisfied. It would be belittling legislative action to insist that upon every minor amendment to the bill the solemnity of the roll call should be invoked. This is the weapon of obstruction and delay, not of enlightened law-making. People ex rel. Seott v. Qhenango Go. 8 FT. T. 317; State v. Broion, 33 S. 0. 152; State ex rel. Att'y Gen. v. Platt, 2 id. 150; State ex rel. Pecvrman v. liedtlce, 9 Neb. 490; How v. Beidelman, 49 Ark. 325; Robertson v. People, 20 Oolo. 279; Division of Howard Go. 15 Kan. 194; Smithee v. Oampbell, 41 Ark. 471; Jones v. Hutchinson., 43 Ala. 721; Nelson v. Haywood Go. 91 Tenn. 596; State ex rel. AtHy Gen. v. Hagood, 13 S. 0. 46.</p> <p>They argued, among other things, that where the constitution expressly requires the proceedings of the legislature to be entered in the journals, such entries are a condition upon which the validity of an act will depend. In such a case the omission cannot be supplied by presumption, the constitutional requirement in such instance being mandatory and not directory. Suth. Stat. Const. § 48; Cooley, Const. Lim. (3d ed.), *135, *136, *140; Black, Const. Law, 284, 285; Smitheev. Garth, 33 Ark. 1; 4 Webster, Works, 295; 1 Story, Const. § 840; Worthenv. Badgett, 33 Ark. 513; Supervisors of Ramsey Oo. v. IJeenan, 2 Minn. 330; Wise v. Bigger, 79 Ya. 269; Ror-dyee v. Godman, 20 Ohio St. 1; Lincoln v. Haugan, 45 Minn. 451; Spangler v. Jaeoby, 14 Ill. 297; People ex rel. Reitz v. De-Wolf, 62 id. 253; People ex rel. Badger v. Loewenthal, 93 id. 191, 206; Norman v. Ky. Board of Mamagers, 93 Ky. 537, 18 L. R. A. 556; Whittalcer v. Janesville, 33 Wis. 76; McDonald v. State, 80 Wis. 407. There can be only one passage of a bill, and that must be after all amendments have been made thereto, and no further changes are to be made. A yea and nay vote in the senate on the bill as amended by the conference committee was essential. When it appears that the bill that passed one branch of the legislature was materially different in terms from the bill that passed the other branch, or where one branch wholly fails to pass it, or where the governor approves a bill materially different from the bill passed, it will be a nullity. Suth. Stat. Const. § 45; Rode v. Phelps, 80 Mich. 598; State v. Wright, 14 Oreg. 365; Opinion of Justices, 35 N. H. 579; Opinion of Justices, 52 id. 622; Prescott v. Trustees of I. <& M. Oandl, 19111. 323; Jones v. Hutchinson, 43 Ala. 721; State ex rel. Huff v. Mc-Lella/nd, 18 Neb. 236; Worthenv. Badgett, 32 Ark. 511; People ex rel. Yale v. Supervisors of Onondaga, 16 Mich. 257; State ex rel. Marlay v. Liedilee, 9 Neb. 462; Dow v. Beidel-man, 49 Ark. 325; Bwrrv. Ross, 19 id. 250; Smithee v. Campbell, 41 id. 471; Moody v. State, 17 Am. Rep. 28.</p>

<p>Appeal from a judgment of the circuit court for Green county: John R. Bennett, Circuit Judge.</p> <p>This was an action on a promissory note given by the defendants to the plaintiff for $250, dated October 1, 1890, payable eighteen months after date, with interest. The defendants, admitting the execution of the note, set up as defensive matter, in substance, that at the date of the note the defendant F. D. Taft purchased of the plaintiff a certain stallion, kept for breeding purposes, for $700, and, as part payment, conveyed to the plaintiff certain real estate, at the agreed value of $200, and gave the defendant the said note, signed by the defendant 8. G. Taft, in fact, as surety, in part payment for said stallion; that at the time the plaintiff falsely and fraudulently represented to the defendant F. D. Taft that said horse was of the age of seven years, and was a very valuable horse for breeding purposes, and was very sure of getting colts, and that the chief value of the stallion was in his breeding qualities; that said Taft relied upon and ■believed such false and fraudulent representations, and purchased the said stallion; and that, at the time, it was nine years of age, and was of no value for breeding purposes whatever, as the plaintiff well knew, but was of the value ■of about §150 only, as a draught horse, whereby the plaintiff cheated and defrauded the defendant in said purchase. It is further stated that the defendant F. JD. Taft had no opportunity of testing the breeding qualities of the horse until the season of 1891, and did not know of its condition until the spring of 1892, and the unsuccessful trials of the horse for breeding purposes during the season of 1891 and 1892 are detailed. The answer thereafter proceeds as follows: The defendant, further answering, by way of counterclaim, says that he lost, in his time and expenses in his effort to use said horse for the purpose for which the plaintiff sold him to the defendant, in the season of 1891 and 1892, about §400, and that, in consequence of the false and fraudulent representations made by the plaintiff to the said defendant F. D. Taft in respect to said horse, upon which he acted in good faith; ” that there was no other or further consideration for said note; and that it, in fact, was without any consideration. Judgment was demanded that it be canceled, and that the defendant F. D. Taft have judgment for $400 damages.</p> <p>Plaintiff replied to the answer, denying that he made any representations to the defendant as to the age of the horse, ,and that it was nine years old or eight years old at the time ■of the sale, and alleged that the horse was then valuable for breeding purposes, and of the value of $700; that,'if of little or no value for such purposes, it was by reason of said defendant F. I). Taft’s having carelessly and negligently used, kept, and treated the horse; and it was alleged, in fact, that said. Taft did ill treat and fail to properly care for and feed said horse, whereby it became and was sick, and unfitted for "use as a stallion, and that any loss of time or expense of the said defendant that had occurred was occasioned by the means aforesaid. The plaintiff,'further replying to said answer and the counterclaim therein contained, denied each £.nd every allegation not admitted or specifically denied by said reply.</p> <p>At the trial, before the court and a jury, evidence was given tending to sustain the claim in the answer that the plaintiff made the representations stated therein, and with knowledge of their falsity, and that the defendant relied on such representations; that the expenses and care expended by the defendant F. D. Taft in keeping the horse, and attempting to use him for breeding purposes during two seasons, were from $400 to $515; that the horse served thirty-six mares in 1891, and got only nine colts, and in 1892 thirty-five mares and got only five colts, for which services the defendant F. JD. Taft received $140. The evidence given on the part of the plaintiff was that, up to the time of the sale, the horse was an excellent foal getter, and during five years had got colts on from fifty-five to seventy-five per cent, of the mares he had served in each year, and that such was a good percentage. The evidence upon the question of the condition and usefulness of the horse as a foal getter, and the manner in which he had been used and managed by the defendant, took quite a wide range. The court instructed the jury, among other things, in substance, that the defendants alleged that, at the time of the purchase, the plaintiff warranted the horse to be a good breeder and sure foal getter, and that it was only seven years of age; that, if such was the case, it would be what is called in law a warranty; that if they found that there was a warranty that the horse was a good breeder and sure foal getter, and that there was a breach of that warranty,— that is, that the horse was not a good breeder, that he was not a sure foal getter,— and they further found that Re was asserted to be only seven years old, when he was nine, then the next step would be finding what the damages were; that the damages were the difference between the value of the horse if he had been as represented and his value with the defects mentioned; that such sum would be the entire damages that naturally flow from the breach. Exceptions were taken to these portions of the charge. The jury found for the defendants, and assessed the damages which F. D. Taft had sustained at $540. Upon argument of a motion by the plaintiff for a new trial the defendant, by leave of the court, remitted'$140 damages, and judgment was rendered in favor of the defendant F. D. Taft, against the plaintiff, for $400 damages, and that the defendants recover their costs, taxed, etc., from which the plaintiff appealed.</p>

<p> Debtor and creditor: Transfer of property to one creditor: Knowledge of fraudulent purpose: Instructions. </p> <p>The question being whether a transfer of property by an insolvent debtor to one of his creditors was fraudulent and void as to the others, an instruction to the effect that if the vendee had any knowledge or even well-founded suspicion that the vendor intended by the transfer of his property to hinder or delay some of his other creditors, that alone would be fatal to the vendee’s title, was erroneous, actual participation in the fraudulent purpose being necessary to defeat the title of a bona fide vendee. David v. Birchard, 53 Wis. 492, disapproved.</p>

<p>Appeal from a judgment of the circuit court for Jefferson county: JohN R. BeNNBtt, Circuit Judge.</p> <p>Action to set aside and cancel a deed given by Levi Johnson and wife to the defendant on the 26th day of February, 1892, conveying to the latter the grantors’ farm, reserving to such grantors about one acre of land, with the farm buildings situated thereon. The consideration for such convey-anee was payment of $50 down, as part of the first payment hereafter mentioned; an agreement to pay $500 on the last day of February in each, year during the life of Levi Johnson, and, in case of the survivorship of his wife, $100 each year during her life; also to furnish the grantors, each year, sufficient wood for one stove, and oats for one horse. The deed contained the following: “ U pon the death of both said first parties [grantors], the absolute title to all said lands, in fee simple, shall vest in said second party, provided she has fulfilled and performed all of the conditions of the deed; but, in case said second party shall fail to perform any of the conditions of said deed, then the said deed shall be null and void, and all rights conveyed herein shall revert to the first parties.”</p> <p>The facts above stated were set forth by proper allegations in the complaint; also that, under the deed, defendant took possession of the farm, and worked it for the season of 1892, and paid the instalment payable on the last day of February, 1893; that thereafter she abandoned the farm; that by reason thereof, March 15, 1894, the grantor Levi Johnson took possession of the premises, and declared the deed void, and brought this action to cancel the same. Defendant answered, among other things, that after taking possession of the farm she expended large sums of money in-repairing and improving the same; that she was obliged to reside in Chicago and leave the property in charge of an agent; that during the first season Johnson, by interference with such agent and other ways particularly set out in the answer, embarrassed her in the work of carrying on the farm; that at the beginning of the second year defendant left the farm in charge of plaintiff Johnson at his request, and upon his agreeing to make the farm produce sufficient to yield the sum required to be paid under the deed. • She denied that plaintiff Johnson ever repossessed himself of the farm, except by her permission as aforesaid. Several matters were set forth in the answer going to show that her failure to comply with the conditions of the deed was attributable to acts of Johnson in interfering with her agent and otherwise. She further alleged, in effect, that she did not pay the sum required under the deed on the last day of February, 1894, because of necessary absence, but that she tendered the same, being $545, on the 28th day of March thereafter, and that it was refused upon the ground that it came too late. She further alleged that she was ready and willing, and had always been, to comply with all of the conditions of the deed.</p> <p>Roth plaintiffs died before the action was tried. It was revived in due form, and proceeded to trial and judgment. The trial court found, among other things, that, soon after the delivery of the deed, Johnson commenced efforts to get rid of its effect and to regain control of the property; that defendant never absolutely refused to perform the conditions of the contract, but always intended to perform them in good faith; that when Johnson refused the tender made on the 28th day of March, 1894, which was of a sum substantially sufficient to cover back taxes and back rent, the refusal was solely on the ground that it came too late, and because he desired to get the place back; and that the tender was not kept good. The court stated the account between the defendant and the estate, in which he found a balance due the latter of $917.59.</p> <p>As a conclusion of law, the court found that defendant should have the absolute legal and equitable title of the farm in her confirmed, within a time specified, upon bringing into court, or paying to plaintiffs’ attorneys, the aforesaid balance. Costs were allowed ,to plaintiffs because of defendant’s breach of contract.</p> <p>The court held that the action was brought to take advantage of a forfeiture in equity, on account of breach of a condition subsequent. To this the plaintiffs excepted; also-excepted to some of the findings of fact. Judgment was-entered in accordance with, the findings, from which this, appeal is taken.</p>

<p>Appeal from a judgment of the circuit court for Rock county: JohN R. BeNNett, Circuit Judge.</p> <p>The facts of the case are stated in the opinion.</p> <p>They argued, among other things, that the plaintiff was suffering terrible pain and was half crazed when he signed the paper in question; and not only that, but upon'inquiring what this paper was which was shown to him to sign, he was informed by the agent of the defendant that it was merely a receipt showing that they had advanced him four months’ wages and sufficient money to pay the doctor’s bill. Under such circumstances the questions whether he did all that an ordinary man would do under similar circumstances, and whether fraud and undue influence were practiced upon him at the time, were for the jury. Walker v. Ebert, 29 Wis. 194; Kellogg v. Sterner, id. 626; Butler v. Cams, 37 id. 61; Shear non v. Pao. Mut. L. Ins. Co. 83 id. 507; Butler v. Regents of University, 32 id. 132; Schultz v. C. ds JV. W. B. Co. 44 id. 638, 645; Bussian v. M., L. S. de W. B. Co. 56 id. 326, 333; Lusted v. C. d¡ N. W. B. Co. 71 id. 391; Lord v. Am. Mut. A cc. Asso. 89 Id. 19.</p>

<p>Appeal from a judgment of the county court of Wauke-sha county: M. S. Geiswold, Judge.</p> <p>This was an action in equity for the abatement of an alleged private nuisance. Plaintiffs allege that they are the owners of divers lots, describing them, situate in the village of Waukesha, and all fronting on Buckley street in that village; that the defendant Anna Ma/ry Schwa/rtz is the owner of lot 2, block A, in Gale, Barstow & Lockwood’s plat of said village, and with the defendant William Schwartz, her husband, is in possession and control of the same; that the defendants have upon said lot 2 a large building, used for hotel purposes, known as the Arcade House, and that it encroaches upon said Buckley street, along the side of lot 2, eleven feet, and that they refused to remove said building, and threaten to permit it to stand upon said street for all time to come; that Buckley street had been platted by the plaintiffs, and the plat had been duly recorded in the office of the register of deeds, November 23, 1893, though said street had not been formally accepted by the president and trustees of the village; that said building, so standing and maintained on said street, is an injury and damage to the property of the plaintiffs, by reason of shutting off the view up said street, and of narrowing the space for travel thereon to about thirty-nine feet, instead of fifty feet, its full width, and decreases the value of their said property which abuts on said street very materially; that the full width of said street is necessary to the plaintiffs, in order to enable them to derive the full use and enjoyment of their property; and that they have already been damaged $500 by reason of the. defendants’ maintaining said building on said street. It.was charged that the defendants had commenced to build, and threatened to complete and maintain, a sidewalk six feet wide along Buckley street, next to said Arcade House, the full depth of said lot 2 on said street, thereby so narrowing the street that it would not be suitable for driving purposes, and by which the value of the plaintiffs’ said property would be greatly diminished, causing irreparable injury and damage thereto; that, if the plaintiffs should’remove said sidewalk, the defendants would replace it, whereby a multiplicity of suits between the parties would ensue. It appeared that Buckley street had been platted and laid out on and along lot 1 in said block A wholly on lands belonging to the plaintiffs. Judgment was demanded for a mandatory injunction to compel the defendants to abate said nuisance and said building upon Buckley street, and for a perpetual injunction restraining them from building any sidewalks upon the south side of said street along the north line of lot 2, and for other relief, etc.</p> <p>The defendants, among other things, insisted in their answer, and in various forms, that the Arcade House had been erected thirty years before the action was brought, upon solid stonework built deep into the ground, ahd had ever •since been, with the adjoining premises, in the quiet, continued, uninterrupted, and peaceable possession and enjoyment •of the defendants and their grantors, used as a homestead, .and at times for hotel purposes, and that the west thirty-five feet of Buckley street along the entire length of said lot 2, for 150 feet, was and had been so held as aforesaid by the •defendants and their grantors, claiming title thereto adversely to all persons, as a passageway from the rear of the Arcade House to the public street, and other buildings on said lot 2, and that they and their grantors had so been in the actual and adverse possession for more than twenty years before the commencement of the action. The defendants. demanded a trial of the issue by jury, which was denied. They demurred to the complaint, ore terms, on the ground that the complaint did not state facts sufficient to constitute a cause of action in equity, but the demurrer was overruled.</p> <p>The court found the allegations of the complaint, in substance, to be true, and that, before the action was commenced, the defendants were requested to remove said building from Buckley street, which encroached thereon eleven feet, but they refused so to do, and insisted that it should remain as built; that such encroachment caused great injury and damage to the plaintiffs, by partially shutting-out the view from the plaintiffs’ property and narrowing the street, as stated in the complaint; that said building, so maintained, was a special injury to the plaintiffs’ said prop-' erty, to such an extent as to make said building a continuous nuisance thereto, and such injury would constantly occur from day to day; that there was no adequate remedy at law, and the injury was not susceptible of adequate compensation in damages; and that by reason of said nuisance the plaintiffs’ comfort and enjoyment of use and occupation of their property was impaired, and its value materially diminished. The court found that the plaintiffs’ claim in respect to the building of the sidewalk was true, and that, before bringing the action, they lawfully removed such sidewalk •from the street, but the defendants threatened to rebuild the same, and that, if they were permitted to do so, it would lead to multiplicity of suits between the parties. The court awarded the plaintiffs six cents damages, and gave judgment granting a permanent injunction, restraining the defendants, their agents, servants, etc., from constructing or causing to be constructed a sidewalk upon Buckley street until said Arcade House should be removed therefrom in accordance with the judgment of the court, and that said Arcade House, the nuisance complained of, or such part thereof as encroached upon Buckley street, be abated and removed. Judgment was rendered accordingly, and for costs, against the defendants, from which they appealed. Such other facts as are material are stated in the opinion.</p>

<p>Wills: Bequest to public charity: Uncertainty: Personal trust: Costs.</p> <p>1. It is no objection to the validity of a bequest for a public charity that its beneficiaries are uncertain, some uncertainty as to beneficiaries being essential to such a bequest.</p> <p>3. A bequest to executors of a certain sum to be used and applied by them for the benefit of such indigent orphans in Rock county “as in the judgment of my said executors may be most needy and deserving,” is not defeated by the refusal of the executors to accept the trust, but may be. executed by a trustee appointed by the court.</p> <p>3. The plaintiff in an action to construe a will, who has no interest in the controversy, is not entitled to costs.</p> <p>Winslow and Pinney, JJ., dissent.</p>

<p>Appeal from a judgment of the circuit court for Ozaukee’ county: A. Soott Sloan, Circuit Judge.</p> <p>Action of ejectment to recover possession of about six and one-half acres of land in the S. W. of "the S. W. ■£ of section 1, township 15, range 20, in Sheboygan county, Wisconsin. The Mullet river flows through the forty-acre tract mentioned, entering it on the west line about twelve chains- and twelve links north of the southwest corner; thence running in a southeasterly direction, so that, at a point about halfway across the forty, it is about six chains and forty-four links north of the south side of the forty; thence flowing easterly and northerly, reaching the east side of the forty about twelve chains north of the southeast corner. Eurther down the stream is a milldam and mills, which have existed since about 1850. The backwater from the dam overflows the banks of the stream to the south on such forty-acre tract, leaving a narrow strip of dry land south of the river in the west half, and a considerably wider strip in the east half. The paper title to the overflowed land and all of such forty north of the river was in defendant Isabell T. Van Alstyne. She derived title by descent from her mother, and by deed from a sister and co-heir, about 1877. In addition to the lands mentioned, the mother owned the mill privilege and right of flowage of all lands affected by the backwater, from about 1850 till she sold the mill property to one Dilling-worth, who subsequently died, and thereafter, in 1891, defendant purchased such property. From a point about twenty-five chains directly south of the southwest corner of the forty-acre tract, and on the west line of section 12, a highway, known as the Greenbush road, crossed such line, and ran in a northeasterly direction, crossing the line between sections 12 and 1 about twenty chains east of said corner; thence northeasterly, in the S. E. £ of the S. W. \ of section 1, to a bridge across the Mullet river, called the Eed bridge, at a point about twelve chains east of the west line of said S. E. J of the S. W. \ and sixteen chains north of the south line of such forty. Northwesterly of such highway, in section 12, was a triangular piece of land, bounded on the southeasterly side by such highway, on the north by the north section line, and on the west by the west section line, containing about twenty acres. North of this tract, in section 1, northwest of the highway and south and southeasterly of the mill pond, was a tract of land, extending up to the Red bridge, containing twenty acres, more or less. In October, 1872, Ernst Bowman, for himself and Phillip Miller, purchased of Elizabeth Butler, who then owned the same, and took the title in his own name to lands in sections 12 and 1, including all, or substantially all, of the above two tracts, desci-ibed in the conveyance as follows: “All that part of the northwest quarter of the northwest quarter of section 12, which lies northwest of the highway leading from the village of Glenbeulah to the village of Greenbush, said land being in the form, of a triangle, and containing twenty acres, more or less; also all that portion of section 1 which lies on the northwest side of said highway, and between the highway and the mill pond, and extends from the above-described land to the Red bridge, said land being in the form of a triangle, and containing twenty acres, more or less.” For the purpose of making a division of this land between Bowman and Miller, G. Marguard, county surveyor, was employed to survey the same, and determine definitely the line of the mill pond. This he did with reference to the Butler deed, and found the amount of land to be thirty-five acres. Thereafter, on the 8th day of Rovember, 1872, in accordance with such survey, a division of the land was made by Bowman making a conveyance to Miller of the following: “A piece of land ten chains in width east and west, extending from the Greenbush and Glenbeulah road north to the Mullet river, being the western part of the northwest quarter of section 12, and the southwest quarter of section 1, town 15, range 20, containing seventeen and fifty one-hundredths acres, as surveyed by G. Marguard, county surveyor.” May 10,1894, Miller sold the land above described to plaintiff. After the contract of sale was made, for the purpose of consummating it, Miller tendered a deed, describing the land as in the Bowman conveyance to him, which was objected to, particularly, because it called for seventeen and one-half acres, whereupon another deed was executed and delivered, describing the land as follows: “ A piece or strip of land ten chains in width from east to west, lying in the northwest corner of section 12, bounded on the south by the Greenbush and Glenbeulah road, on the north and west by the section lines of said section; also, a piece or strip of land, ten chains in width east and west, lying in the southwest corner of section 1, hounded on the north by the Mullet river, and the south and west by the section lines- of sections 1 and 2,— the whole descriptions containing twenty-three acres, more or less; the same being lands conveyed by Ernst Bowman to Phillip Miller, in town 15, range 20,” etc.</p> <p>' Plaintiff claimed that Miller, in 1872, entered into possession of all the lands mentioned in section 1 under claim of title exclusive of any other right, founding such claim upon the Bowman deed as being a conveyance of the same to him, and continued in such possession continuously, under such claim, up to the making of the deed in 1884, and- that plaintiff continued such possession thereafter till he Avas dispossessed by the defendant, as hereafter stated. In 1889 defendant Isabell T. Van Alstyne entered upon the land and built a wire fence north of the section line, and where she determined the high-water line of the water in the mill pond to be. This wire fence was built from a point on the Avest line of section 1 about two chains north of the southwest corner of the section; thence, on a line a little south of east, for a distance of about eight chains, to a point about one and one-half chains north of the south section line; thence, northeasterly, to a point ten chains east of the west line, and about two and one-half chains north of the south line of the section. The tract of land in dispute is that part between the wire and the thread of the Mullet river, containing about six and one-half acres. The evidence tends to show that the high-water line of the pond is south of the fencemost of the way across the tract. The land in section 1 south of the fence, and that in section 12, contained in the deed from Bowman to Miller and from Miller to plaintiff, contains at least seventeen and one-half acres. The adverse possession of the disputed land consisted of the ordinary use thereof by the occupant, as alleged, for a supply of fuel and fencing timber, from the conveyance to Miller in 1872 to the building of the wire fence in 1889.</p> <p>The jury found in favor of the plaintiff. At the close of plaintiff’s case there was a motion made for a nonsuit, which was overruled. Exceptions were taken to refusals of the trial court to instruct the jury as requested; also, to various portions of the instructions given. Based on such exceptions and other alleged errors, defendants moved the court to set aside the verdict and grant a new trial, which was overruled. Judgment was rendered in plaintiff’s favor, from vhich this appeal is taken.</p>

<p>Appeal from an order-of the circuit court for Waukesha county: Waeham Paeks, Circuit Judge.</p>

This is an action to recover damages resulting to the plaintiff from an attack of typhoid fever, which she claims ■she contracted while employed as a servant in defendant’s ■family.

Parish, Circuit Judge. , Action to recover a fifth instalment of ten per cent, of the subscription for sixty-five shares of the capital stock of the plaintiff company, amounting to $650.

<p> Promissory notes: Nonpayment: Notice to indorsers: Negligence of agent: Excusable delay: Damages: Failure to proceed against maker. </p> <p>1. The fact that a few days prior to the receipt and retention of promissory notes for purposes of collection by a bank, the bank building and a large part of the city in which it was located were destroyed by fire, and that the bank had only resumed business in a tentative way in a temporary structure at the time the notes became due, was not such an overwhelming calamity or unavoidable accident as would excuse a failure to notify indorsers within the time required to charge them with liability.</p> <p>2. Although the bank had the option to undertake or refuse the collection of the notes, yet, having undertaken it, a failure to exercise reasonable diligence in the performance of the work constituted actionable negligence.</p> <p>3. Where, in an action by the owners of the notes against the bank for such negligence, it appeared that the maker was insolvent, and that the indorsers were solvent, the measure of damages, in the absence of evidence in mitigation, is the amount due on the notes.</p> <p>4. The failure of the plaintiff to proceed promptly against the maker of the notes is held not to have prejudiced the defendant, where it did not appear that a preference could have been gained either by attachment or by judgment and execution.</p>

Appeals from judgments of the circuit court for Ashland county: Jora 3L Pabish, Circuit Judge. Actions to recover on fire, insurance policies. Such policies contain the following provisions: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void ... if the hazard be increased by any means within the control or knowledge of the insured.

<p> Executions: Amending return: Collateral attack: Evidence. </p> <p>An order allowing a sheriff to amend his return on an execution cannot be attacked in an action on a note given as collateral to the note upon which the judgment and execution were based, unless the court was without jurisdiction to make the order or render the judgment. Evidence that the original return was correct and the amended return incorrect was therefore inadmissible.</p>

Paeish, Circuit Judge. This is an action to enforce a laborer’s lien upon a quantity of manufactured lumber, under ch. 139, Laws of 1891, which, among other provisions, gives a lien upon manufactured lumber to any person who has performed labor in manufacturing the same. It appears that the lumber in question was manufactured at the mill of the defendant the Hynes Lumber Company, and was the property of the remaining defendants.

Parish, Circuit Judge. ■ This action was brought by the plaintiff to recover against the defendants, Thomas Edwcurds and John A. Q-uam, the amount of money he had paid to them upon an executory contract they had made to convey to him two certain lots in block 3 of Edwards & Quam’s addition to Ashland, and also $400, the value of a certain house of the plaintiff, built on the premises as a part of the consideration for the lots.

Parish, Circuit Judge. Eeplevin for a quantity of pine lumber. The lumber ivas manufactured by the defendant from logs which he cut, without authority, from certain lands which the Wisconsin Central Eailroad Company acquired in 1884 from the state, under its land grant, and then owned.

Appeals from judgments of the circuit court for Price county: John IL Parish, Circuit Judge. Action on alleged verbal agreements to insure property owned by plaintiff against loss by fire. The answers put in issue the making of the contracts. The evidence shows that E. W. Winchester, an insurance agent at Phillips, Wisconsin, received an application for insurance on plaintiff’s property.

<p>Appeal from a judgment of the circuit court for Lincoln county: Chas. Y. BaRdeen, Circuit Judge.</p>

Y. Bardeen, Circuit Judge. This is an appeal from an order dissolving an attachment. In May, 1895, the plaintiff was a creditor of the defendants to an amount exceeding $600. The defendants, who were copartners, operated a small sawmill at McCord, Wisconsin, which they owned together with about 1,000 acres of land adjoining the mill, from which considerable timber had been cut.

<p>Appeal from a judgment of the circuit court for Bayfield county: John II. PaRish, Circuit Judge.</p> <p>This is an action in equity to restrain the collection of a portion of the taxes for the year 1895 upon a large quantity of pine lands owned by plaintiff in the town of Bayfield, Bayfield county, and to have the same set aside and canceled. It appears that there was carried out upon the tax roll of said town for that year the gross sum of $63,623. Of this amount three items are in dispute upon this appeal, viz.: $4,150, being a part of the town tax for current expenses; $9,217, being a school district tax; and $5,379.93, being the town’s share of a railroad tax of $24,000 levied by the county-of Bayfield. The circuit court found all of the taxes valid, and dismissed the complaint, and the plaintiff appealed.</p>

<p> Criminal law and practice: Waiver by failure to appear: New trial: Withdrawal of plea: Verdiet: Uncertainty: Objections: Review: Amendment of information. </p> <p>1. The failure of the defendant in a criminal prosecution to appear at the time to which the cause was properly adjourned is a waiver of his constitutional right to be present at that time, or at a subsequent date to which it was then adjourned, and the abandonment of the proceedings on the date of the second adjournment, due to his failure to appear, did not deprive the state of the right to put him upon trial de novo.</p> <p>2. The entry of a special plea of former acquittal did not operate as a withdrawal of the plea of not guilty, but after the overruling of the former the issue formed by the latter remained.</p> <p>3. At the trial of an accused person on an information containing two counts, one for embezzlement and the other for larceny, the prosecutor elected to proceed upon the former. Subsequently a new count was added charging the carrying away of the money with intent to embezzle it. Held, that a verdict of “guilty of embezzlement in the manner and form as charged in the second count of the information ” was not uncertain, the election to proceed on the count for embezzlement being an abandonment and elimination of the count for larceny, and the new count becoming second.</p> <p>4. The question whether an information was properly amended during the progress of the trial by the addition of a new count cannot be considered, where there is nothing in the record to show that the amendment, or the evidence tending to establish it, was objected to.</p>

<p>Taxation: Recovery of illegal tax: Equity: Logs and timber: Situs for taxation: Manufactured product.</p> <p>1. Under sec. 1164, S. & B. Ann. Stats; (giving any person who haspaid an unlawful tax the right to recover from the municipality all moneys so unlawfully levied and collected, and providing that no action shall be maintained for such purpose “ unless it be made to appear to the court that the plaintiff has paid more than his equitable share of such taxes ”), the rule in equity in respect to relief on account of illegality in the assessment and collection of taxes is applicable, and to warrant a recovery the objections to the proceedings must go to the very groundwork of the tax and necessarily affect materially its principle, and show that it must be unjust and unequal. It is not enough to show that the tax proceedings are irregular or void, but it must appear also that they are inequitable.</p> <p>2. In such a case, proof of illegal and void additions to the assessment, increasing the plaintiff’s taxes, may show a prima facie case, but the defendant is entitled at least to rebut it, and to show by way of vindicating the tax in equity and justifying the retention of the money sued for, that, had the plaintiff made a fair and truthful return of his property, he would have been properly taxed for the entire amount of the illegal tax, or a material part thereof.</p> <p>3. Logs which had been cut in one town within six months previous to April 1, and piled there for shipment and actually shipped into another town prior to that date, never had a situs for assessment and taxation in the town where they had been piled for shipment, under secs. 2, 3, ch. 473, Laws of 1891, but were subject to assessment and taxation in the town into which they had been shipped. State ex rel. Holt T¡umber Oo. v. Bellew, 86 Wis. 189, distinguished and limited.</p> <p>4 Where in such a case the owner of the logs had manufactured them into lumber at the place to which they had been shipped prior to May 1 of the same year, and on that day had sold and transferred the lumber to third parties, the vendor was not liable to be assessed therefor.</p>

<p>Appeal from a judgment of the circuit court for Marathon county: Chas. Y. Babdeen, Circuit J udge.</p> <p>This is a creditors’ bilí to enforce collection of a judgment against J. E. Leahy upon the undivided one half of a mill plant described, and to set aside a mortgage and a deed by him given tbereon, the one dated January 21,1886, and the the other December 3, 1890. The issue being joined and the trial had, the court found, in effect, the following facts: That from April 1Y, 1886, to December, 1890, the defendant Leahy was a logger and lumberman, doing a large business in logging and lumbering, with his headquarters and sawmill plant and equipment at Wausau. That one Beebe owned a one-half interest in the sawmill, and Leahy the other undivided half interest. That during the same time the plaintiff was a hardware merchant at Wausau, and from time to time until November, 1890, extended credit to Leahy in large amounts. That January 21, 1886, Leahy and wife executed and delivered to one Henry Corwith a mortgage of the undivided one-half interest in the mill property to secure the payment of $20,000, all payable before the end of that year, but which mortgage remained unrecorded for nearly five years. That Leahy was at that time quite heavily in debt, and owed Corwith a large sum of money, and that the money secured by such mortgage was needed by Leahy to carry on his business operations, and was advanced by Henry Corwith to him within a period of about six months after the date of the mortgage. That, at the time of giving the mortgage, Henry Corwith, Leahy, and Beebe entered into a contemporaneous written agreement, by the terms of .which Henry Corwith was to have a lien upon certain logs and lumber then owned by Leahy and Beebe as security for the same indebtedness mentioned in the mortgage. That the purchase price of said logs and lumber was to be paid to Henry Corwith, and applied in satisfaction of the mortgage debt. That such security was ample and sufficient to pay the indebtedness mentioned in the mortgage. That a considerable amount was realized by Henry Corwith out of such logs and lumber so pledged to him, but the amount cannot be precisely determined from the evidence. That Henry Corwith died September 15, 1888, testate, leaving Charles R. Corwith his sole heir at law, and naming Charles R. and John Corwith as executors in his will. That said mortgage was not recorded until November 20, 1890. That Leahy was, at that time, owing the plaintiff about $1,600 on account of sales of merchandise, which sum was wholly unsecured. That the plaintiff thereafter took from Leahy a promissory note for the amount of such balance. That, during the time said mortgage was so withheld from record, the value of Leahy’s interest in the mill plant was at least $15,000. That the plaintiff had no knowledge or notice of the existence of said mortgage until the same was so recorded. That the plaintiff extended credit to Leahy in the belief that the undivided one-half interest in the mill property owned by him was unincumbered, and that he would not have extended such credit had he known of the existence of that mortgage. That at the time the mortgage was so recorded, and before, Leahy was indebted to the estate of Henry Corwith for between $50,000 and $60,000. That Leahy was then being crowded and embarrassed by his creditors, and was then very much in need of funds, and was also then indebted to various parties, including the plaintiff and one James McCrossen, to whom he was owing a large amount of money, to secure which he had executed to McCrossen a mortgage or mortgages upon his timber lands and logging outfit. That, on the same day of recording said mortgage, Leahy and wife executed to Charles R. Corwith a second mortgage on the real estate covered by the McCrossen mortgage, which was recorded November 22, 1890. That December 2, 1890, an agreement in triplicate was entered into between Leahy, McCrossen, and Charles R. Corwith, which recites the indebtedness of Leahy to each; the giving of the mortgages on the timber land and personal property; the fact that all parties were agreed that it was advisable that the property should be so handled, and the operations so conducted, as not to sacrifice the same at forced sales; that Charles H. Corwith should take possession of all the property of Leahy, carry on logging operations, handle and sell the proceeds, paying out of said proceeds certain notes held by McCrossen amounting to $20,500, then to pay Corwith for all moneys advanced to carry on the business, then to pay the remainder of Leahy’s indebtedness to McCrossen, and then to pay the remainder of Leahy’s indebtedness to the Corwith estate, and, lastly, any surplus remaining should be paid to Leahy. That the wife of Leahy joined in that agreement, which contained a quitclaim deed of all their interest in the real and personal property described in the several mortgages mentioned. That the property mortgaged and turned over to McCrossen and Corwith under that agreement covered all of Leahy’s property except his homestead, his undivided one-half interest in the sawmill plant, and some boom stock worth about $10,000, which had previously been pledged to Henry Corwith as security. That the property covered by that agreement was thought to be enough to pay the claims of both McCrossen and CorvAth, and leave a surplus. That that tripartite agreement was not recorded, and was not intended to be recorded, by the parties. That that tripartite contract of December 2,1890, recites the agreement of January 21,1886, between Corwith, Leahy, and Beebe, and admits payment thereon of $15,136.79. That it also recites certain securities held by Corwith for the payment of the indebtedness named, but neglects to mention the mortgage of January 21, 1886. That it appears in proof that the defendants Corwith have commenced an action against Leahy to recover about $27,000 claimed to be due .them, and in their complaint they demandedi judgment for $8,9S5.46, as. the balance due upon the contract of January 21,1886. That all of Leahy’s indebtedness to Corwith was mentioned in the agreement of December 2, 1890, and it was then supposed' that there was sufficient property included therein to pay both McCrossen and Corwith, and leave a surplus to Leahy. That December 3,1890, Leahy and wife executed and delivered to Charles R. Corwith a deed of said undivided one-half interest in the sawmill plant for the consideration expressed therein of $15,000, and also transferred to him the boom stock mentioned, the face value of which was $11,000, and for which Leahy was to be allowed seventy-seven cents on the dollar, and Leahy received credit upon his account for those amounts.' That at that time it was agreed verbally between Leahy and Charles R. Corwith that Leahy should have the right to repurchase such interest in the mill property at the price mentioned. That $15,000 was a fair and reasonable value for such interest. That the deed of the mill property and the transfer of the boom stock was made by Leahy as an inducement for Corwith to make the triplicate agreement mentioned, and the reason why it was not included in such agreement separately was because Corwith held the mortgage of January 21, 1886. That such deed was given in place of that mortgage, and upon the same consideration as the mortgage. That after the execution of that agreement, McCrossen and Corwith took possession of the property of Leahy under said agreement, and continued to manage and operate the business, cutting the logs and running the sawmill and selling the lumber product, and that no settlement between the parties has yet been made. That the execution of the mortgages to Corwith and McCrossen, the making of the tripartite agreement of December 3, 1890, the transfer of the boom stock, and the withholding from record of the mortgage of January 21, 1886, and the execution and delivery of the deed of the mill property covered by that mortgage, were all parts o£ the general transaction entered into by Leahy with Corwith and McCrossen to secure them, and give them a preference over other creditors. That it was verbally and orally agreed between Leahy, McCrossen, and Corwith, at the time the various instruments were made in November and December, 1890, that Leahy should have the property returned and deeded back to him upon satisfaction of their several claims, and that such agreement was to be kept secret from the other creditors of Leahy. That at the time of giving them such several instruments, Leahy was owing a considerable amount to other creditors, and was and still is owing such amount, and is insolvent. That Leahy, in November and December, 1890, was very much embarrassed and on the verge of insolvency, and that his financial condition was well known to his codefendants. That after the delivery of the deed, December 3, 1890, and the'transfer of the boom stock, none of Leahy’s notes or evidences of indebtedness was ever delivered to him by his co-defendants. That said mortgage was withheld from record, kept concealed from the other creditors of Leahy including the plaintiff, and not pursued, for the purpose and with the intent on the part of Leahy and Henry Corwith during his lifetime, and thereafter by the defendants Charles JR,, and John Corwith, in order that it should not impair the credit of Leahy. That notice of it should not be made public, with the intent and purpose, on the part of said parties, to give to Leahy a fictitious credit through the apparent unin-cumbered ownership of said mill property; and that other creditors of Leahy should be deceived as to the condition of the property described in the mortgage. That Leahy not having paid the note held by the plaintiff against him for $1,600, the plaintiff brought an action thereon, and recovered judgment against him, May 9,1892, for $1,600.58, which judgment was duly docketed, and execution duly issued thereon, and the same returned wholly unsatisfied. That no part of the said judgment has been paid, and that there is now justly due thereon $1,600.58, together with interest thereon from May 9, 1S92. That this action was commenced May 11, 1892. That on that day the summons and complaint were filed in tbe clerk’s office, and tbe notice of tbe pend-ency of tbe action was filed in tbe register’s.office.</p> <p>As conclusions of law tbe court found, in effect, that tbe mortgage of January 21,1886, recorded December 20, 1890, and tbe record thereof, were null and void as against tbe plaintiff; that tbe deed of tbe undivided one half of tbe milli property, dated December 3, 1890, from Leaby to Charles-JR. Corwith, and tbe record thereof, were null and void as against tbe plaintiff; that tbe plaintiff’s judgment was and is a lien upon tbe undivided one-balf interest in tbe mill property, to tbe amount of such indebtedness, and is prior in right and equity to all claim, right, and interest of tbe defendants, and of all persons claiming by, through, or under them, or either of them, since May 11, 1892; and that tbe plaintiff is entitled to enforce tbe same against that property, free and clear and discharged from tbe claims and rights of all persons claiming by, through, or under tbe defendants, or any of them, since that date,— and ordered, judgment to be entered thereon accordingly. From judgment entered thereon accordingly, tbe defendants Charles JR. and John Corwith, as such executors, bring this appeal.</p> <p>They argued, among other things, that tbe withholding of tbe mortgage from record, whether so withheld through tbe agreement of the' parties or not, made it constructively fraudulent as to creditors who gave credit to tbe mortgagor under tbe belief that, be held tbe unincumbered ownership of tbe property. Evans v. Laughton, 69 WIs. 138; Blennerhassett v. Sherman, 105• U. S. 100; Hmigerford v. Earle, 2 Yernon, 261; Hildreth v. Sands, 2 Johns. Ob. 35; Coates v. Gerlaeh,é.4z Pa. St. 43;. Hilliard v. Cagle, 46 Miss. 309; Hafner v. Irwin, 1 Ired. Law, 490; HildeTjurn v. Brown, 17 B. Mon. 779; Neslvn v. Wells, 104 U. S. 428; Briggs v. Jones, L. R. 10 Eq. 92, 98; Steele v. Goon, 27 Neb. 586; Barker v. Barker's Assignee, 2' Woods, 87; Burt v. Timmons, 29 W. Ya. 441; Fetters v. JDuvernois, 73 Mich. 481; Stools Growers' Bank v. Newton, 13 Colo. 245; Goll & Frank Go. v. Miller, 87 Iowa, 426; Jewett v. Sundback, 5 S. Dak. Ill; Standard Pa/per Co. v. Guenther, 67 Wis. 101; Biddle v. Allen, 90 Iowa, 738; Falker v. Li/nehan, 88 id. 641; Sanger v. Guenther, 73 Wis. 354; Rump, Fraud. Conv. § 39; State Savings Bank v. Buck, 123 Mo. 141; Gent. Nat. Bank v. Doran, 109 Mo. 40; Adams v. Gurtis, 137 Ind. 175; Lehman, Durr & Go. v. Yam Winkle, 92 Ala. 443; Pendleton v. Hughes, 65 Barb. 136.</p>

<p> Contempt: Refusal of judgment debtor to malee discovery of property: Discretion: Direction to pay over money. </p> <p>1. Where the circuit court is satisfied that a proper discovery of the property of a judgment debtor is being thwarted by the defendant’s contumacy, it has power to punish him summarily as for a contempt committed in the immediate presence of the court, if it deems such a course necessary to the proper administration of justice and to conserve the power and honor of the court; and its action in such a case will not he reversed on appeal except in a plain instance of mistake, or abuse of power.</p> <p>3. It would seem that the inaccuracy in denominating as an order the verbal directions for the furnishing of a statement of the debtor’s property, and the committing of the defendant in form until he should comply with that order, is not so far of the substance of the order of commitment as to require its reversal, where the substance of the thing intended is made plain by the proceedings.</p> <p>3. Although it is within the power of the circuit court to order a member of an insolvent partnership to pay over to the receiver appointed for such firm a certain sum of money, where the evidence clearly and satisfactorily shows that such money is within his control, and to enforce compliance with the order by imprisoning 'him, yet the exercise of such power is held to have been an abuse of discretion, where such partner absolutely denied that he had either property or money belonging to the firm within his power, and the only evidence to the contrary was the inference arising from the fact that about two years previous to such time the firm had been in possession of a large amount of property, the disposition of which had not been satisfactorily accounted for.</p>

<p>Appeal from an order of the circuit court for Eau Claire county: ~W. F. Bailey-, Circuit Judge.</p> <p>In May, 1892, plaintiff commenced an action against the American Building & Loan Association and other defendants to recover the value of capital stock in the defendant association. Some of such stock plaintiff owned in his own right, and some he held as trustee, with power to convert the same into money. It was claimed defendants had wrongfully converted all of such stock to their own use. The action was in trover. Some time after the commencement of the action, plaintiff made an assignment of his property to the Southwestern Land Compamy. After such assignment such land company notified plaintiff not to proceed further, representing it in the action. Plaintiff proceeded, nevertheless, and obtained a judgment for $550. The amount of such judgment ivas paid into court. Thereafter the Southwestern Land Company filed a petition in the action, claiming ownership of the fund, and requesting an order to be made that such fund be paid to it, or that it be made a defendant, and an issue be awarded for the purpose of testing the question of such ownership. The motion was denied and petitioner appealed.</p> <p>To the point that the plaintiff’s claim in this case is not assignable, since it would not survive to his personal representatives, and was contingent on his completing his job, he. cited Zdbriskie v. Smith, 13 N. T. 322’; Kelley v. Kelley, 80 Wis. 486.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: W. F Bailey, Circuit Judge.</p> <p>The case is stated in the opinion.</p>

<p> Mutual benefit associations: Waiver of forfeiture: Authority of general manager: Court and jury. </p> <p>A forfeiture of a policy in a mutual benefit association, incurred by a violation of a provision avoiding the policy in case the assured, without the written consent of the company previously given, resided south of the thirty-second parallel in the United States between July 1 and November 1 in any year, is held to have been waived, as matter of law, by the acts of the general manager of the association in forwarding blanks for making' proofs of loss after being informed by the beneficiary’s attorney that the insured died at De Land, Florida, on September 16, and in requiring the amendment of proofs of loss showing that the place of residence of the insured was Eau Claire, Wisconsin, and Volusia county, Florida, and that he died in the latter place on September 16, by reason of which acts the beneficiary was put to expense in making and correcting such proofs, even though such general manager testified that when he sent the blanks and requested the amendment and correction of the proofs he did not know, or suspect, or believe that any provision of the policy in respect to residence or travel had been violated.</p>

<p> Assault and battery: Personal injuries: Damages: Future suffering: Instructions: Evidence: Punitory damages: Experts. </p> <p>1. In an action to recover damages for an assault and battery, any testimony which tends, in some appreciable degree, to show that damage from the effects of the injury will be suffered in the future, is admissible, but, in order to warrant a recovery therefor, such damage must be established to a reasonable certainty.</p> <p>S. An instruction in such a case that the plaintiff is entitled to recover for “such bodily pain and suffering as the evidence shows she will endure in the future ” by reason of the injuries received, and “ for mental suffering in the future, if any, by reason of such physical impairment, if you find that the evidence shows that there will be physical impairment in the future,” is held clearly to imply that such damage must be established to a reasonable certainty, and, in the absence of a request for a more definite instruction, was not erroneous as opening a field of speculation.</p> <p>-3. The evidence of the defendant that “she [plaintiff] kicked me, and I struck her ” is held sufficient to sustain a finding of the jury to the effect that the injury had been inflicted from ill will and vindictiveness. An award of punitory damages was therefore proper.</p> <p>í Whore the defendant’s own statement showed that the plaintiff (a woman) kicked him and he returned the kick with a blow, it was not error for the court to refuse to instruct that unless defendant used more force than was. necessary to defend himself he was not liable.</p> <p>5. Where there was evidence going to show that plaintiff exercised her injured limbs, and no evidence to the contrary, it was not error to exclude the evidence of experts as to whether the failure on plaintiff’s part to properly exercise them might not have been the cause of the permanency of her injuries.</p>

<p>Appeal from a, judgment of the circuit court for Walworth county: Eeank M. Eish, Circuit Judge.</p> <p>Plaintiff worked for the defendant from April 1, 1889, to April 1, 1890, as traveling agent, at $1,200 per year, and from April 1,1890, to April 1,1891, at $1,500 per year. At the end-of the second period mentioned, nothing was said about any change in salary, and plaintiff continued to work to December 14.1891, and then wrote defendant, saying that he expected to handle' the business for the next year in Illinois, Wisconsin, Minnesota, Iowa, and Missouri, thereby bringing his percentage up to $100,000 for the year.; that he wanted $1,800 per year and expenses, or $1,500 and expenses and five per cent, of the net proceeds, or $1,500 and five per cent, of the gross premiums over $65,000. Defendant replied December 11.1891, promising consideration of the matter. December 21.1891, plaintiff replied, urging consideration of the proposition of December 14, for a contract to- begin January 1, 1892. December 23 plaintiff again wrote defendant, urging consideration of the matter. January 26, 1892, defendant replied to plaintiff’s proposition by saying that the salary should be $1,800, as requested. Plaintiff worked under this arrangement .through the years 1892, 1893, and to January 18, 1894, when he was informed by letter that he would be discharged March 1, 1894. February 1 he replied, calling attention to the existing contract. March 1, 1894, he was discharged. In January thereafter, he brought this action to recover compensation from the time of his discharge up to January 1,1895, at $1,800 per year. The answer took issue ori the alleged facts, making out the existence of a contract between the parties to work for defendant from January 1, 1892, to January 1, 1893, at $1,800 per year, and a continuance of the contract for 1893 and 1894 by the acts of the parties. The case was tried by the court. The court found the existence of the contract as alleged, and that plaintiff was entitled to recover nine months’ wages at $1,800 per year. Defendant excepted to the findings of fact in regard to the contract, and to the conclusion of law. Judgment was entered in plaintiff’s favor according to the findings, from which this appeal was taken.</p> <p>To the point that the fixing of a salary by the year or other interval is not enough to make the employment one for such period, they cited Prentiss v. Ledyard, 28 Wis. 131; Tibornas v. Hatch, 53 id. 296; Martin, <v. N. Y. L. Ins. Co. 148 FT. Y. 117; Haney v. Cald/well, 35 Ark. 156; Pabner v. Marquette & P. R. M. Co. 32 Mich. 274; Tatter son v. Suffolle Mfg. Co. 106 Mass. 56; Mechem, Agency, § 211; Wood, Master & S. (1st ed.), 272, 273.</p> <p>argued, among other things, that a hiring for a certain sum per month or year, nothing being said as to the length of time of service and no other circumstances being shown, indicates that the hiring was for one month or one year. Magarahan v. Wright, 83 G-a. 773; Pinchney v. Tabnage, 10 S. E. Rep. 1083; Moss v Decatur L. I. c& F. Co. 93 Ala. 269; Stranm v. Gross, 2 Tex. Civ. App. 432; Philadelphia Paclemg & Provision Cols Estate, 4 Pa. Dist. R. 57; Bleeher v. Johnson, 51 How. Pr. 380; Norton v. Cowell, 65 Md. 359; Balaam v. Shillito, 37 Ohio St. 431.</p>

<p>Appeal from a judgment of the superior court for Bacine county; Feank M. Fish, Circuit Judge.</p> <p>The case is stated in the opinion.</p>

<p> Suretyship: Bond of administrator: Conditional delivery: Failure to procure additional signatures: Agency: Parties: Substitution: Appeal: Matter occurring after judgment: Partial payment of judgment by joint obligors. </p> <p>1. An administrator, having been required to file an additional bond, procured a blank for that purpose, and left it with D., the cashier of a bank, who undertook to procure the signatures of sufficient sureties from among the directors, with the understanding that the moneys of the estate were to be deposited in the bank. In pursuance of such arrangement two of the directors signed the bond and left it with D. with the understanding that he was to obtain the signatures of the other directors before delivering it. Before any other signatures had been obtained the county judge called upon D., obtained the bond without knowledge of any condition affecting its validity, and approved and filed it. There was nothing on the face of the bond indicating that other sureties were expected to sign it. Held, that the sureties were bound. Beloit & M. R. Co. v. Palmer, 19 Wis. 574, and Chipman v. Tucker, 38 Wis. 43, distinguished and limited.</p> <p>2. Since D. was acting for and at the request of the administrator in procuring the sureties, his possession of the bond was in legal effect the possession of the administrator.</p> <p>3. Where there has been a change of interest of the successful’party to an action pending an appeal, a substitution of parties under sec. 2801, R. S., is not absolutely necessary, but the appeal may be defended in the name of the original respondent, and the rights of the successful party protected in the trial court.</p> <p>4. Whether a ¡judgment against joint obligors has been partially paid by some of them, being a matter occurring after judgment, cannot be considered on appeal, but the trial court has ample power to pass upon that question, and to see that the amount paid is duly credited.</p>

H. JoimsoN, Circuit Judge. Action for the value of a horse. The plaintiff delivered to the defendant seventeen horses, to be carried from Darling-ton, Wisconsin, to Chicago, Illinois. They were to be unloaded, fed, and 'watered, m route, at the defendant’s yards in Milwaukee. They arrived at Milwaukee in the nighttime. They were taken from the car, and driven in a body, through a lane, into a pen, where the defendant’s employees at once commenced tying them.

<p>Practice: Curing omission in order: Res adjudicata: Pleading: Approval of guardian’s bond: Fixing liability of sureties.</p> <p>1. Where leave to plead over was omitted from an order sustaining a demurrer but awarding §10 costs, the subsequent service of an amended complaint and payment of the §10, and their retention, is held to have cured the omission.</p> <p>S. The decision of a trial court sustaining a demurrer is not res adju-dicata of the same questions on a second demurrer.</p> <p>3. The approval of the bond of a guardian being a condition precedent to his appointment under sec. 8966, R. S., a complaint alleging the appointment of the guardian sufficiently shows performance of such condition.</p> <p>4 In an action on a guardian’s bond, a complaint alleging the settlement of the final account of the guardian; the determination that he pay over a certain sum; the entry of an order for its payment; and the guardian’s neglect or refusal to comply therewith, is held sufficient to show that the liability of the sureties on his bond had become fixed.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: B. N. AustiN, Judge.</p> <p>The facts of the case are stated in the opinion.</p> <p>To the point that the contract was several and not joint and several, they cited JDwelley v. JDwelley, 143 Mass. 509; Frost v. Williams, 2 S. Dak. 457; Morrow v. lander, 77 Wis. 77; 1 Addison, Cont. 77, 79; Pollock, Cont. 453; Wilson v. Wilson, 5 H. L. Cas. 40, 66; In re De La Touohis Settlement, L. R. 10 Eq. 599, 603; Wiliam, v. Wiliam, 16 Yes. 72, 84; S. 0. 2 Dow, 275; Stanley v. G., G. & G. R. Go. 18 Ohio St. 552; Full-mer v. Foust, 155 Pa. St. 275, 35 Am. St. Rep. 881; 1 Parsons, Cont. 13; Mathews v. Phelps, 61 Mich. 327, 1 Am. St. Rep. 581; Dams & R. B. & M. Go. v. Barber, 51 Fed. Rep. 148; Davis v. Belford, 70 Mich. 120; Gibbons v. Grvnsel, 79 Wis. 365; Landwerlen v. Wheeler, 106 Ind. 523; Davis & R. B. d M. Go. v. Murray, 102 Mich. 217; Dmis <& R. B. d M. Go. v. Oupp, 89 Wis. 678.</p>

<p>Appeal from, an order of the circuit court for Milwaukee county: D. H. JohNSON, Circuit Judge.</p> <p>This is an appeal from an order refusing to dissolve a tern-porary injunctional order theretofore granted. It appeared by the complaint and affidavits in support thereof that the' plaintiff has been engaged at Milwaukee in selling household dyes manufactured by Hoitmann Bros,, in Cologne, Germany, since the year 1892, and that since May, 1893, he-has sold such dyes under the label “ German Household Dyes,” in small, rectangular paper packages, with peculiar and distinctive labels printed in ink corresponding with the-color of the inclosed dye; and that he has built up a large- and valuable business at considerable expense. It further appeared that in March, 1895, the defendants commenced to sell in Milwaukee, and generally to the trade, dyes manufactured by Berndt & Co., of Berlin, Germany, which were put up and sold in packages identical in size, and closely resembling in appearance and color, the packages of the plaintiff, under the name “Excellent German Household Dyes.” There was proof that these packages had actually deceived the trade, and injured the plaintiff’s business, and that the defendants had intentionally led purchasers to believe that their dyes were in fact the same as those sold by-plaintiff. Upon this showing, and upon notice, the circuit court made an order, of which the important part is as follows: “It is ordered that the said defendants, Leonard Waterman and the .Ewropean Importing Agency, and their-officers, agents, servants, and employees, do absolutely desist and refrain from in any way using the label ‘ German Household Dyes ’ as a designation for dyes, or upon packages containing dyes, or in circulars or advertisements of the same,, and from in any way imitating or counterfeiting the distinctive features and indicia of the plaintiff’s said packages, and from selling any dyes in packages which are in any way in imitation of those used by the plaintiff, and from in any way representing to the public, or causing them to believe, that such dyes are of the same origin as those offered for sale and sold by the plaintiff, pending the final hearing and determination of this action or the further order of this court therein.” Afterwards the defendants made answer,, and upon the answer and a large number of affidavits moved to dissolve the in junctional order, which motion was denied.</p> <p>They argued, among other things, that where it clearly appears that defendants have closely imitated plaintiff’s labels, patterns, and style, and have done obvious damage to his business, from the business methods employed, plaintiff is entitled to relief on the ground of fraud, independently of his trade-mark. Cleveland Stone Co. v. Wallace, 52 Eed. Eep. 431; Anheuser-Busch Brewing Asso. v. Clanke, Cox, Man. Trade-Mark Cas. 456: Leclanche Battery Co. v. Western Electric Co. 23 Eed. Eep. 276; American Brewing Co. v. St. Louis Brewing Co. 47 Mo. App. 14; Southern White Lead Co. v. Cary, 25 Eed. Eep. 125; Billsbury v. Pillsbury-Washburn Flour Mills Co. 64 id. 841; Wellman <& JD. Tobacco Co. v. Ware Tobacco Works, 46 id. 289. In such a case a preliminary injunction-will issue. See cases cited above; also, Moxie Nerve Food v. Beach, 33 Eed. Eep. 248; Cray v. Taper-Sleeve Pulley Works, 16 id. 436. Persons have been enjoined from even using their own names in their labels and advertisements, where such use is calculated to deceive purchasers and cause them to believe they are purchasing the goods of another person of the same name, who had established his-business at a prior date. Pillsbury v. Pillsbury-Washbtmi Flour Mills Co. 64 Eed. Eep. 841; Landreth v. Landreth, 22 id. 41; C. F. Simmons■ Medicine Co. v. Mansfield Drug Co. 93 Tenn. 84; LLolloway v. Holloway, 13 Beav. 209, Cox, Man. of Trade-Mark Cas. No. 106; McLean v. Fleming, 96 IT. S. 245.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: D. II. JohNsoN, Circuit Judge.</p> <p>This is an action to obtain a judgment declaring certain general taxes upon the real estate described in the complaint., the property of the plaintiff, to be illegal and void, and enjoining and restraining the city treasurer from selling such real estate, or any part thereof, and issuing' any certificate or certificates of sale for the payment of such taxes for the year 1894, and for general relief. It appears from the complaint that the plaintiff is a banking corporation organized under the state law, with a capital stock of $200,000, divided into 800 shares,.of the face value of $250 each; that all of its stockholders are residents in and taxpayers of the city and county of Milwaukee; that it furnished in June, 1894, to the assessor of the assessment district in which the plaintiff bank had its principal place of business, a verified statement of the full and true value of the shares of stock owned by its stockholders, at $200,000, on the 1st day of May, 1894, stating the names, residence, and amount of holdings of its stockholders, etc.; that the assessor fixed the taxable value of the said shares at $450,000, instead of $200,000, as so reported, and assessed^the said stock to said stockholders at that amount, which assessment was confirnied by the board of review of said city; that said assessor, in so fixing and assessing the value of the shares of stock as aforesaid, and the said board of review, so confirming such assessment, included and computed the entire surplus of said bank, in order to increase the taxable value of the said shares of stock.</p> <p>It further appears that the surplus of the bank at the time of such assessment amounted to about the sum of ■$300,000, “a large proportion of which said surplus was then, and is now, composed of real estate owned and held by said plaintiff, and situate in the said city of Milwaukee, of all of which the said assessor and the said board of review of taxation were at all times informed and well knew; ” that the real estate (describing it), except that portion in the Third ward of said city, and the west two thirds of lot .numbered 4, and all of lot 5 in block 88 in the Sixth ward, was then, and still is, necessarily used in the operation of the business of said plaintiff bank, namely, as places of business for it and for its two branch banks; and that all of said real estate, including both that used for banking purposes •and otherwise, “ was purchased by said bank with money forming part of its capital stock; and that all of said real estate became, and now is, part of plaintiff’s capital stock, .and is included in the said 800 shares vnto which said capital ■stock is divided; ” and that the said real estate was, in addition, assessed and taxed eo nomine to said plaintiff at its full •taxable value, although it had already “ been taxed at its full taxable value in the assessment of the capital stoclc of said plaintiff ’bamlh to its said stockholders, as aforesaid/” that all the shares of the capital stock had been taxed for the year 1894 to the holders thereof, at their said assessed value of $450,000, without deduction therefrom of the value of ■said real estate, or of any of the same or any part thereof; and that said stockholders had paid the tax thereon, amounting to $10,124.98, and the taxes assessed and extended on ¡said real estate against said bank amounted to $3,348.09, and .a tax warrant for that year had been placed in the hands of the defendant, the city treasurer, for collection, and was then due and payable. It was charged that the tax against said real estate was inequitable, unjust, and wholly illegal and void, for the reason that all of said real estate had “ been subjected to a double tax payable by the same parties, to wit, the stockholders of said plaintiff bank, as above shown, which is in violation of the established principle of taxation, that no one subject of taxation shall be subjected to more than one tax payable by the same person;” and it was alleged that the taxes upon said real estate were unequal, in that there were several banks in said city owning no real estate, and which were therefore obliged to pay but one tax upon their surplus, while this plaintiff was obliged to pay a tax upon its real estate, and its shareholders are “ obliged to pay the same tax a second time upon said real estate included in their shares of stock as aforesaid.” It was alleged that the defendant, the treasurer of the city, threatened to sell said real estate for said taxes, and relief was prayed as above stated, and for a temporary injunction during the pendency of the action. The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer and vacated the injunctional order that had been granted as prayed, and from this order the plaintiff appealed.</p> <p>They contended, inter alia, that to tax a bank on its property and the stockholders, on their shares is double taxation, and not allowable under the law. 1 Desty, Taxation, 199, and cases cited; Gordon's Bx'rs v. Baltimore, 5 Gill, 236; State v. O. & P. B. Go. 40 Md. 22; Smith v. Burley, 9 N. H. 423; Nashua Sav. Bank v. Nashua, 46 id. 389; 1 Cook, Stock, 568, note. It cannot be said in this case that the bank and the shareholders are-two different and separate parties. The shareholders own all of the capital stock of the bank. There is no reserve stock. Therefore the shareholders are the bank to all intents and purposes. The bank is the trustee for the shareholders, and the trustee and the oestuis que trust cannot both be taxed on the same property. Lewanee Co. Sav.. Bank v. Adrian, 66 Mich. 273; Burke v. Badlam, 13. Cent. L. J. 48; City Nat. Bank v. Paducah, 5 id. 347.</p> <p>They argued, among other things, that the shares of stock of a bank and the property of the bank are not one and the same thing. The legal property of the shareholder is quite a different thing from that of the corporation, although the shares of stock have no value except that which they derive from the corporate property. 1 Cook, Stock, § 9; 2 Beach, Priv. Corp. § 466; Van Allen v. Assessors, 3 Wall. 583; Gordon v. Appeal Tax Coxt/rt, 3 How. 133; Oswego Sta/rch Factory v. JDol-loway, 21 N. T. 449; People ex rel. Bank of Commonwealth v. Gomm’rs of Taxes, 23 id. 217; Belaioare R. R. Tax {Minot v. P-,W. c& B. R. Go), 18 Wall. 205; Porter v. R., R. I. & St. L. R. Co. 76 Ill. 561. If therefore the shares of stock in the hands of the shareholders and the corporate property are two different things, then to tax both cannot be double taxation, however much the value of the one may depend upon the value of the other. A fortiori, where the thing taxed in addition to the property is not the capital stock of the corporation itself, but the shares in the hands of the stockholders, that cannot be double taxation. laekawanna I. <& 0. Go. v. Dazerne Go. 42 Pa. St. 424, 431; WhiteseTl v. Northampton Go. 49 id. 526, 529; Toll-Bridge Go. v. Osborn, 35 Conn. 7; Farrington v. Tennessee, 95 U. S. 679, 687; Tennessee v. Whitworth, 117 id. 129; New. Orleans v. Houston, 119 id. 265; State Bank v. Richmond, 79 Ya. 113; Porter v. R., R. I. <& Si. L. R. Go. 76 Ill. 561; Salem Iron Factory Go. v. Danvers, 10 Mass. 514.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>Action for a personal injury to the plaintiff which was caused by the use of a defective tool, which he found in the building where his work was and used without inspection. The plaintiff was a machinist of twenty years’ experience. He was employed as a machinist in the defendant’s shops and its adjacent roundhouse at night work. Oh the night of the accident he was required to repair a locomotive in the roundhouse. Finding it necessary to move the locomotive a short distance, be looked for and found a pinch bar with which he attempted to-remove it. He applied the bar to the wheel of the locomotive, and put his whole weight upon the lever, raising his feet from the floor for that purpose. While he was in that position the bar slipped upon the rail and fell to the floor. The plaintiff fell upon the bar in such a manner as to partially dislocate both knees. A pinch bar is a tool which is simple in its mechanical contrivance. It is a bent lever, with a long and short arm. The short arm is about three to three and one-half inches, in length. The long arm is about six feet long, and tapers to small size towards the end. The bar is made of iron or' steel, and weighs thirty to forty pounds. That part of the bar which is the short arm is shaped somewhat like the letter “Y.” The point of the Y-shaped part, when the bar is used, is applied to the weight to be moved. The end of the lower arm of the Y shape is the fulcrum. This part of the bar is made of steel, and, when new, the points are sharp.Like other tools it becomes dull and blunted by using.' When used to move a locomotive, the point of the bar is placed between the wheel and the rail. The locomotive is the weight and the rail the fulcrum. When the points become* dulled by use, the bar will sometimes slip upon the rail. The plaintiff had used pinch bars and knew their construction. He had moved locomotives with them before. Immediately after the accident, he felt the bar “ to find out what condition it was in and how it felt,” and found that it was dull. It does not appear but that there were other and safe pinch bars in the roundhouse. The plaintiff had the-right to call men to move the locomotive. Two men came' and moved it for him after the accident. . There was judgment of nonsuit, from which the plaintiff appeals.</p>

H. Johnson, Circuit Judge. This action was instituted for the foreclosure of a 'mortgage of $2,300. The defendant Joseph Sehlitz Brewing-Company had a second mortgage on the property of $600. Defendant Herman Schütz had a third mortgage. The foreclosure proceedings resulted in a judgment of foreclosure and sale. The property was sold pursuant thereto, and' was bid in by plaintiff for the amount due on the first mortgage and costs, $2,896.93.

<p> Sale of chattels: Title: Implied promise. </p> <p>3. The receiver of a street railway company ordered car wheels of plaintiff. Through mistake, more wheels were sent than were ordered. The receiver refused to accept them and notified the plaintiff to that effect. Plaintiff thereupon directed him to unload the wheels and “ hold subject to our order,” and requested him to keep the wheels until he wanted to use them, and then settle for them. The receiver made no reply, but unloaded and stored the wheels. Held, that no title to the wheels passed to the receiver.</p> <p>•2. The use of the wheels by a purchaser at a receiver’s sale of all the property of a street railway company, into whose custody they passed with knowledge of the facts, raised an implied promise on its part to pay for them.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: E. N. AustiN, Judge.</p> <p>The case is stated in the opinion.</p>

H. Johnson, Circuit Judge. This is an action for the construction of a will. The facts were not in dispute. Andrew Landguth, a widower, died in Milwaukee, December 1, 1880, leaving two daughters as his sole heirs, Mary (the plaintiff) and Lizzie, aged, respectively, fourteen and twelve years, and his estate consisted of a homestead in Milwaukee.

0. Ludwig, Judge. This action was a proceeding by garnishment against the respondent, in the action of Albert Q. Mayo and others against the Milwaukee Amusement Company, in justice’s, court.

<p>Appeal from a judgment of the circuit court for Jefferson county: John R. Bennett, Circuit Judge.</p> <p>This is an action in eq uity for the construction of the will of John W. Cole, deceased, late of the city of Watertown. Beurhaus and Humphrey are the executors, duly qualified and acting; and Oscar A. Oole and Eliza O. Odíe are respectively the son and widow of the deceased, and his only heirs at law. Cole, the testator, died February 17, 1894, and his will was duly probated April 4, 1894. By the first •clause of the will the testator made the usual direction for the payment of the expenses of his last sickness and funeral •and all his 'just debts. By the second clause he gave to his wife and son in fee certain described real estate in the town •of Lake Mills and the city of Watertown; also $5,000 of bank stock; with provisions for compensation in money in ■the case of the sale of the real estate or bank stock before ■his death. The remaining provisions of the will are as follows :</p> <p>“ Third. I hereby give, devise and bequeath unto my executors hereinafter named, all the rest and residue of my property and estate, both real and personal, in whatever it may consist or wherever situated at the time of my decease, in trust, for the following purposes: To have the full charge, management, and control thereof; and I direct that they -shall keep all buildings insured, and in a proper state of repair, and to collect and receive the rents, issues, and profits thereof, and also my interest money which may become due .and payable on all securities and investments belonging to my estate, and to pay the costs of said repairs and insur•ance, and the annual taxes and assessments that may be levied and assessed upon my estate, and expenses of administering said trust, out of the money so collected for rents .and interest; and the balance of the money so collected and received for rents and interest as aforesaid, I hereby direct ■shall be paid to mv beloved wife, Eliza O. Cole, and to my .son, Osear A. Cole, from time to time, as the same are collected, one-third part thereof in addition to the sum of six thousand dollars and accumulated interest thereon, being .about eight thousand dollars, heretofore advanced by me to my said wife, which is intended and to be received by her in lieu of her dower right in my estate, the same to be paid regularly as it is collected during her natural life, and the remaining two thirds of said rents and interest moneys to be paid to my son, Oscar A. Gole. And after the decease of my wife I will and direct that the whole amount of said rents and interest moneys be paid by my trustees hereinafter named to my son, Oscar A. Gole, in case he survives my wife. I will and direct. that this trust shall continue for the purposes above mentioned for and during the natural life of my wife, Eliza O. Gole, and my son, Oscar A. Gole.</p> <p>“ Should the persons hereinafter nominated and appointed as executors and trustees, or any of them, die, or refuse to accept the trust, the vacancy thus caused shall be filled by appointment by the county court, or the judge thereof, for Jefferson county, who is hereby authorized and requested to make the same subject to the approval of the parties interested in my estate.</p> <p>“ I hereby direct that my said executors or trustees shall receive such compensation for their services, to be paid by or retained out of my estate, as the county judge of said county may from time to time fix and allow.</p> <p>“ I further will and direct that my lot on the southeast corner of Second and Main streets, being lot three (3) in block ten (10) in the First ward of the city of Watertown, my twenty acres in the Seventh wrard of said city, and my two farms near Marshall, in Dane county, Wisconsin, shall not be sold nor incumbered, but other property not herein otherwise provided or disposed of may be sold, if deemed advisable.</p> <p>“I also give and devise unto my son, Oseare A. Gole, during his lifetime, the" free use of my farm, described' as the east half of the northwest quarter of section twenty-eight (28), in the town of Emmet, county of Dodge, and the state of Wisconsin, which is commonly known as the Race Track.</p> <p>“ After the death of my wife and my son, Oscar A. Gole,. and the trust heretofore created by and under this will has-, been fully carried out and performed, I then will and direct that my trustees hereinafter named, or their successors, shall convey the title to and turn over the possession and control of all real estate and personal property which may have come into their possession as my trustees, unto the city of Watertown, in the state of Wisconsin, in trust for the following purposes, and upon the conditions hereinafter set forth:</p> <p>“ First. The establishment and maintenance of a public library and a business men’s club room.</p> <p>“ Second. The establishment and maintenance of a home for aged and poor people of the city of Watertown; and it is my will and wish that the twenty acres of land I own in the Seventh ward of said city be used as a location for said home.</p> <p>“I also will and direct that my residence on Clyman street, in the First ward of the city of Watertown, be fitted up by said city for an old ladies’ home, if it shall be deemed advisable. I will and direct that my executors and trustees shall, as soon after my demise as is convenient, convey and transfer title Snd possession of said homestead, consisting of all -of block one (1) of Pritchard’s Second addition to Water-town, except a piece in the northwest corner heretofore conveyed to Harriet Giles, to the said city of Watertown.</p> <p>' “ The said city of Watertown is hereby authorized and directed to purchase suitable grounds upon which to erect a library and club house building, to erect and pay for the same out of any funds that may be in its hands in the nature of personal securities or money.</p> <p>“ I also will and direct that my farm just north of the city, and commonly called the Race Track farm, shall be used by the city as a driving park and agricultural grounds after the death of my son, Osear.</p> <p>“ In event the said city shall decline to accept said property in trust for the purposes above named, then my trustees are directed to sell said property, and divide the proceeds thereof among my next of kin according to law.</p> <p>“ It is the wish and expectation of my wife and son, Osean-, to make ample provision for my grandchild, the daughter of my said son, Oscar, and for that reason I make none in this will.</p> <p>“I do hereby appoint my son, Oscar A. Gole, C. B. Skinner, and Christian May, all of the city of Watertown, executors and trustees of this, my last will and testament, with full confidence that they will faithfully and prudently execute the trust hereby reposed in them.”</p> <p>Following the attestation clause of the will was the following certificate:</p> <p>" Eliza O. Gole, wife of John W. Cole, and Oscar A. Gole, his son, all of the city of Watertown, and state of Wisconsin, do certify that they have read the foregoing last will of the said John W. Cole, and know its contents, and do consent to the same, and will accept without contention the provisions therein made for them.</p> <p>“Witness our hands this nineteenth day of July, 1892.</p> <p>“ OscAR A. Cole,</p> <p>“Eliza 0. Cole.”</p> <p>Upon the trial the will and the inventory and appraisal were put in evidence. The inventory contains the bank stock of $5,000 and $195 of other personal property. All the rest of the property is real estate, and particularly mentioned in the will. The homestead, however, on Clyman street, devised to the city in trust for an old ladies’ home, is not in the inventory. The whole amount of real estate in the inventory is appraised at $14,300. Of this the farm in Lake Mills, appraised at $8,000, and lots 6 to 12, block 15, and lots 5 to 9, block 16, Cady’s addition to Watertown, appraised at $2,000, are specifically devised to Eliza G. and Oscar A. Gole. Lot 3, block 10, is appraised at $20,000, the twenty acres in the Seventh ward at $2,500, and the two farms in Dane county at $25,000, making a total of $47,500. The Race Track farm is appraised at $8,000, and the lots in Second ward are appraised at $8,800.</p> <p>The evidence also shows that the executors submitted the following communication to the common council of the city, May 1Y, 1894:</p> <p>“To the Common Council of the City of Watertown:</p> <p>“ The undersigned, executors of the last will of the late John W. Cole, respectfully call the attention of the common council to the provisions of said will which concern the city of Watertown. In the opinion of the undersigned, some action by the board is requisite as to the acceptance of the trust created by said will in respect to said city. The undersigned do not deem it necessary to mention specially the terms of said will, as they are informed that the city is in possession of a certified copy, and are consequently apprised of its contents.”</p> <p>This communication was referred to the judiciary committee of the council, which subsequently made the following report thereon to the council:</p> <p>“Your committee on judiciary, to whom was referred a certified copy of the last will of John W. Cole, deceased, and the communication of the executors of said will of May 1Y, 1894, in regard to the same, respectfully reports as follows:</p> <p>“Your committee submitted the will to the city attorney for a legal construction of the same, and from the opinion furnished (which is in writing) your committee comes to the conclusion that there are two separate and distinct provisions in said will, independent of each other, as affecting the city of Watertown: Eirst, the devise of the homestead for use as an old ladies’ home is a present consideration, while the devise of the other property to the city can only be considered after the death of Mrs. Eliza O. Oole and Oscar A. Cole. After fully considering the first devise to the city,, your committee comes to the conclusion that the common council should not now fit up the homestead for the purpose named in said will, for the reason that the expense of fitting up and maintaining the home is too great a burden upon our taxpayers. The law now places the support of the poor upon the county, and there is no good reason why this city should take a great share of this burden entirely upon itself. Your committee therefore submit the following preamble and resolution:</p> <p>“Whereas, the late John W. Cole, of this city, has devised to the city of Watertown his homestead, and provided in his will that it may be at once fitted up for an old ladies’ home, if it shall be deemed advisable, and whereas, the cost of fitting up and maintaining the same for the purpose mentioned is greater than the city can at the present time afford: Therefore, resolved, that the common council do not deem it advisable at the present time to fit up and maintain the said homestead for the purpose mentioned in said will.”</p> <p>The resolutions recommended were adopted by the council June 19, 1894. The devises and be'quests in favor of the city were attacked by the heirs at law as invalid. The circuit court, however, held them all valid, and the heirs at law and the executors appealed.</p> <p>They contended, inter alia, that, without any designation in the will or authority delegated to some one to determine who the aged and poor are, the trust is so indefinite and uncertain that it cannot be carried out without a liberal exercise of the doctrine of cy gores, not permitted in this state. White ■v. Fish, 22 Conn. 50; Estate of Hoffen, 70 Wis. 524; levi v. Levi, 33 FT. Y. 103; Tripjpe v. Frazier, 4 Har. & J. 446; In re Jlowe, 1 Paige, 214; Trustees v. Peaslee, 15 FT. H. 317; Kain v. Qibboney, 101 U. S. 362. The will fails to direct how much shall be used for the library and how much for the home. For this reason the trust must fail. Beehmmi. v. Bonsor, 23' F. Y. 298, 306; Chapman v. Brown, 6 Yes. 404; Harper v. Phelps, 21 Conn. 270; Jarman, Wills, 338. The devise of the Kace Track farm is in perpetuity and void. Ford, v. Ford, 70 Wis. 61; Redfield, Surrogates’ Courts (4th ed.), 169; Amory v. Lord, 9 N. Y. 403, 415-420; Jennings v. Jennings, 7 id. 547; DeWolf v. Lawson, 61 Wis. 475. The devise of the homestead to the executors with directions to convey it to the city as soon as convenient for an old ladies’ home, if valid, created only a passive trust. No duties in reference to this property are assigned to the executors, and •the title vested at once, at the death of the testator, in the city, if it could vest at all. R. S. sec. 2075; Sullivan v. Bruhling, 66 Wis. 472; Goodrich v. Milwaukee, 24 id. 429; Liuih v. Oberbru/nner, 40 id. 238; Adams v. Perry, 43 N. Y. 487.</p>

<p> Contracts, joint or several: Agreement to pay attorney for services rendered for another: Court and jury: Evidence: Special verdict: Release: Waiver. </p> <p>1. Where the terms oí an oral contract are to be gathered from conduct and conversations, or where they are in dispute or ambiguous or vague, the question as to what the understanding or agreement in fact was is for the jury; but where an oral contract is detailed by the plaintiff, and no other testimony is given concerning it, and it is clear and unambiguous in its terms, it is the duty of the court to construe it.</p> <p>2. In an action by an attorney to recover for services which he claimed to have performed in the defense of one R. on a charge of murder under an oral contract with defendant, plaintiff’s testimony (stated in the opinion) is held to show merely an agreement that defendant and one B. would pay the bills for the defense jointly.</p> <p>3. Where in such a case the plaintiff’s testimony shows an express contract by defendant to pay for plaintiff’s services jointly with B., evidence of subsequent acts of the defendant consistent with either a joint or a several hiring, which, in the absence of such express contract, would require the submission to the jury of the question what, if any, contract the defendant had made, is not of itself sufficient to take to the jury the question whether the contract made by defendant was joint or several.</p> <p>4. The question whether the payment to plaintiff by B.’s executors of $1,500, in consideration of which plaintiff withdrew a claim which he had filed against the estate, amounted to a release of the estate should have been submitted to the jury for special verdict upon request, since, if the transaction was a release, it operated under sec. 4204, R. S., as a discharge of one half of plaintiff’s claim.</p> <p>5. The plaintiff having tried the entire case upon the theory of a separate contract with defendant and the latter having denied that there was any contract, evidence of defendant’s admissions that there was a joint contract was inadmissible; and the failure of defendant to object to plaintiff’s testimony, which showed a joint contract as matter of law, did not constitute a waiver of objection to such admissions.</p> <p>6. An agreement with an attorney to pay for services to be rendered in the defense of a third person, made before any substantial work had been done on the case, is not an engagement to answer for the debt of another.</p> <p>7. Evidence that defendant sent letters containing; and gave oral,, directions similar to those contained in a lost telegram purporting to have come from him, is held sufficient proof that he sent the telegram to render admissible oral evidence of its contents, notwithstanding his statement that he did not remember sending it.</p>

<p> Ejectment: Boundaries: Low-mater mark: Evidence. </p> <p>■t. Low-water mark on a fluctuating lake or other body of water is the level at which the waters of the lake usually stand when free from disturbing causes.</p> <p>2. In an action of ejectment to recover a strip of land along the shore of Lake Michigan, between the boundary of premises conveyed by one T. to defendant’s grantor in 1858 by courses and distances, and the present low-water mark of the lake, findings of the trial court that at the time of such conveyance there was an irregular strip of land between defendant’s boundary and the lake, and that subsequently T. was in possession of such strip claiming title thereto and making improvements thereon, are held not to have been against the clear preponderance of the evidence.</p>

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

<p>Appeal from a judgment of the circuit court for Milwaukee county: Eeank M. Eish, Judge.</p> <p>This action was brought to compel the specific performance of a certain agreement in writing, made between the parties July 22, 1891, by which the plaintiff agreed to sell and convey to the defendant a certain tract of land therein described, containing nine acres, for the sum of $27,000, and to accept, as payment therefor, all the buildings thereon for the sum of $3,000, and eight lots thereof for the sum of $4,000, and tlie remainder of the purchase price was to be secured by a mortgage on said land, payable on or before five years, with interest at six per cent, per annum, payable semiannually. It was agreed that the land should be platted into lots, streets graded, sidewalks made, curb set, and put in proper condition to be sold out in lots; that, when platted, said mortgage was to be executed upon the land, except the eight lots to be conveyed to the plaintiff. On the 24th of May, 1892, differences having arisen between the parties in relation to this contract, they entered into another written agreement, which, it was stated, “ is to be considered as a modification of . . . and is to be a part of said agreement” of July 22, 1891. By this agreement plaintiff was to convey said tract of land by a warranty deed executed by himself and wife, free and clear of all incumbrances, and to accept, in payment therefor, all buildings thereon for $3,000, and certain lots therein described for $9,000, the said tract of land having been platted as W. B. Neeves’ Subdivision No. 2, Avhich sums were to be deducted from the purchase price of $27,000 named in the former agreement, “ leaving a balance due said Williamson on said premises of $16,000,” to be payable as before stated, and to be secured by mortgages on the remaining lots, being fifty-six in number,— a separate mortgage to be executed upon each lot for the pro rata amount to be due on each lot of about $285, and to aggregate $16,000. The buildings were to be moved by the plaintiff within a reasonable time, upon the lots to be conveyed to him by the defendant, and such conveyance and said mortgages were to be executed simultaneously with the execution and delivery of the deed of the entire tract by plaintiff and wife to the defendant.</p> <p>The complaint averred a tender by the plaintiff to the defendant of the stipulated conveyance, March 28, 1893, and that the defendant refused to accept the same, and convey specified lots to the plaintiff, and to execute and deliver the required mortgages to the plaintiff on the remaining lots; and it was further averred that he was, and always had been, ready and willing to perform the agreement on his part, and judgment was prayed that the defendant convey said lots described to the plaintiff, and execute and deliver the stipulated mortgages.</p> <p>The defendant, in an amended answer, admitted the execution of the agreements relied on, and alleged that he proceeded to perform the agreement on his part, had the land platted into lots and blocks, and commenced the stipulated improvements thereon, but that he was hindered and delayed by plaintiff’s failure to remove the buildings therefrom ; that the plaintiff failed to carry out and perform said contract, as modified, on his part; that he did not have or acquire title to said premises until March 1, 1893, and so was unable to perform the contract as provided on his part. He also alleged tender to the plaintiff, aud demand for the execution of a deed of the tract of land, December 1, 1892, and that he “ tendered and offered to deliver to the plaintiff all the mortgages and deeds of conveyance provided to be delivered by the defendant,” but the plaintiff refused and neglected to execute and deliver said deed. He admitted that, March 28, 1893, the plaintiff tendered to him a deed of conveyance of said land, but not upon the terms and conditions, nor for the consideration, mentioned in the contracts. The defendant set up a verified counterclaim against the plaintiff for $17,600 damages for failure on his pa'rt to perform said contract, averring that the defendant had performed each and every of the conditions of said' contract, until the plaintiff refused and neglected to perform, whereby the defendant was prevented from further carrying out the said contract, although he was willing and ready to do so. This counterclaim was subsequently withdrawn.</p> <p>At the trial the defendant demurred to the complaint, ore terms, on the ground that it did not state facts sufficient to constitute a cause of action, but his demurrer was overruled.</p> <p>The bill of exceptions does not state or show that it contains all the evidence produced at the trial. The court found the allegations of the complaint to be true,— that the parties executed the written agreement of July 22, 1891; that the defendant took possession of the premises described, except the buildings thereon, and proceeded to plat the said land into streets and lots, and cause such plat to be recorded, and performed a considerable amount of grading and other work, and sold and disposed of a considerable amount of sand from said premises, receiving to his own use the proceeds of said sale; that the second agreement, modifying the first, was subsequently executed; and that, in December, 1892, the plaintiff gave the defendant an abstract of title, and he expressed himself as satisfied with the title as shown by it, and he had ever since retained the abstract; that the plaintiff had duly offered to perform all the terms of said contracts on his part, and that any delay in time in the performance of the terms thereof by him had been acquiesced in and waived by the defendant; that the defendant, in his original verified answer of February 10, 1894, alleged that he “ was willing to carry out the terms of said contracts,” and in and by said answer asked the court for a judgment that the plaintiff be compelled to perform the conditions of said contracts according to the terms thereof. •</p> <p>Judgment was given in favor of the plaintiff, substantially as prayed, adjudging that the sum of $16,000, with interest at six per cent, from June 1, 1892, was due the plaintiff; that, upon the execution and delivery by the plaintiff and his wife to the defendant of a warranty deed of the land contracted to be sold to him, the defendant should deliver to the plaintiff a warranty deed, conveying, free from incumbrances, the lots described in said contract, and that he execute and deliver to the plaintiff fifty-six separate notes, and purchase-money mortgages securing the same, each for $285.11, payable in five years from June 1, 1892, with interest, etc., each of said mortgages to cover one of the fifty-six lots not conveyed by the defendant to the plaintiff, and that, within a reasonable time after the execution of said deeds, notes, and mortgages, the plaintiff remove the buildings belonging to him upon the lots so conveyed by the defendant to the plaintiff; that, in case of the refusal or neglect of the defendant to comply with said terms, then and in that event the title to said tract of land of nine acres be, and it was thereby declared to be, vested in the defendant, in the same manner as if conveyed to him by deed, saving and reserving the particular lots which were to be conveyed to the plaintiff, the title to each of which should be and remain in him in like manner as if conveyed to him by the defendant as directed; that the plaintiff have and retain a lien upon the remaining lots for said sum of $16,000 and interest, in like manner as if the defendant had executed and delivered his separate purchase-money mortgages on each of said fifty-six lots for $285.71; and that the plaintiff have the right to collect said purchase money and interest, so secured, as by law provided. The plaintiff had judgment for costs. The defendant appealed.</p>

<p>Appeal from an order of the superior court of Milwaukee county: R. N. Adstiet, Judge.</p>

H. Jon ns on, Circuit Judge. August 6, 1894, the intervener, Marks, had judgments amounting to $1,281.40, and other claims which were in suit, against one Louis Hecht, and held the stock of merchandise of Hecht under levy of execution on the judgments and attachments in the suits. Hecht procured the assistance of the plaintiff, Auerbach, who was his brother-in-law, to aid in obtaining a release of the levy.

H. JohNsoN, Circuit Judge. The complaint sets out a cause of action against the defendant for the conversion of a landau.