Volume 95 — Wisconsin Reports

<p> Deal-estate brolcers: Commissions: Evidence: Collateral fact. </p> <p>In an action to recover a broker’s commission on the sale of real estate, evidence by another broker as to the terms upon which the defendant had told him he might sell the property was inadmissible. J</p>

<p> Court and jury: Directing verdict. </p> <p>The court is not justified in directing a verdict unless, looking at the facts in evidence in the light most favorable to the opposite party, the jury would not be justified in finding a verdict in his favor.</p>

N. Austen, Judge. The complaint alleges, in substance, that on the 22d day of February, 1894, plaintiff was in the employ of defendant as shear man; that his duties consisted in assisting in the operation of sawing and shearing heated bars and plates of iron by the .use of a large circular saw, about four feet in diameter; that the saw was set in a frame, and so adjusted that, when in motion, by pressing on a lever, it ■could be lowered down upon the iron placed under the…

<p>Appeal from an order of the superior court of Milwaukee county: R. N. AustiN, Judge.</p> <p>They contended, inter alia,, that the grievance complained of is an unlawful invasion of plaintiff’s right of property — a taking of his property without compensation within the meaning of the state and federal constitutions. The viaduct in question is a permanent structure above the street, and an invasion upon the appurtenant easement held by the abutting owner. Such structure is not in conformity to the ordinary use of the highway, and is subversive of the owner’s easement and beneficial estate. The owner has an absolute right to the use of the street in front of him for ordinary street purposes. The interest of the abutting owner, his right to light and air and ventilation and freedom of access, his frontage, his exemption from annoyances, is property, and ■can only be taken from him by legal process and for just compensation. The owner is entitled to enjoy his property free from annoyances resulting from smells, dust, noise, etc. All such rights are property, and an unlawful invasion thereof entitles the owner to damages. Depriving him of the beneficial use and enjoyment of his property is a taking of private property for public use. Elliott, Roads & S. 155; Lewis, Eminent Dom. §§ 54-56, 59, 100, 122, 123; Dillon, Mun. Corp. (4th ed.), § 587b; Beach, Pub. Corp. §§ 657, 658; Cooley, Const. Lim. (6th ed.), 670; Tiedeman, Lim. of Police Power, 397; Randolph, Eminent Dom. §§ 147, 148, 152, 404; Arimond v. G. B. <& M. O. Go. 31 Wis. 316; Buehner v. G., M. <& N. W. B. Go. 56 id. 403; Sherman v. M., L. S. c& W. B. Go. 40 id. 645; Pwmpelly v. Green Bay <& M. G. Go. 13 Wall. 166; Bigney v. Chicago,. 102 Ill. 64; Yates v. Milwauhee, 10 Wall. 497; Grand Bapids Booming Go. v. Jarvis, 30 Mich. 308; Eaton v. B. O. d¡ M. B. B. 51 N. H. 504; Thompson v. And/rosooggin Biver Imp. Go. 54 id. 545; Yanderlip v. Grand Bapids, 73 Mich. 522, 16 Am. St. Rep. 597, and note; Story v. W. Y. El. B. Co. 90 N. Y. 122; lahr v. Metropolitan El. B. Go. 104 id. 268. The building of a viaduct is a new and additional use of the street, and'imposes an additional burden or servitude on the fee. Randolph, Eminent Dom. § 162. The soil cannot be devoted to a different use, whether more or less onerous, without compensation to the abutting owner. Lewis, Eminent Dom. § 140; Beach, Pub. Corp. § 663; Shawneetown v. Mason, 82 Ill. 337; Cooley, Const. Lim. (6th ed.), 674, 675.</p>

<p> Negotiable instruments: When interest becomes due: Demand: Default. </p> <p>The fact that a note .bearing interest payable semiannually was dated, executed, and delivered on a certain day fixes the date for the payment of instalments of interest at the end of every six months thereafter, and no demand was necessary tp create a default.</p>

<p> Railroads: Killing of child on track: Signals: Negative testimony: Unlawful speed: Lookout: Fencing right of way: Proximate cause: Court and jury: Evidence. </p> <p>1. Where four witnesses have testified positively to the giving of customary signals by a locomotive, the testimony of two witnesses who were where they could have heard the signals, that they heard none but gave the matter no attention, was insufficient to require the submission to the jury of the question whether signals were given.</p> <p>2. In an action against a railroad company for the killing of a boy nine years old who had attempted to cross defendant’s tracks at a point much used by pedestrians, it appeared that there were three tracks at the place of the accident with a space of about nine feet between them; that the boy was seen standing between the rails of the easterly track waiting for the passing of a freight train going south on the middle track; that immediately after the caboose had passed he started to run west across the other tracks and was struck and killed by the engine of a passenger train going north on the west track at a speed of about ten miles per hour. The engineer testified that he was keeping lookout ahead of his train but did not see the boy. Held, that the failure to see the boy was not inconsistent with the fact of a proper lookout.</p> <p>3. The rate of speed of trains in a city being limited by ch. 467, Laws of 1891, to fifteen miles per hour, a less rate of speed cannot become unlawful unless by reason of some peculiar danger of the situation.</p> <p>4. The primary purpose of fencing the right of way of a railroad, as required by sec. 1810, R. S.,isto prevent animals, not persons, from coming upon the track; but if it were otherwise, the company would not be liable, by reason of the failure to fence, for the killing of a person by a passing locomotive, unless it appeared affirmatively that such person came upon the right of way at a point where it was not fenced.</p> <p>[5. Whether it is the duty of a railroad company to fence its right of way "within the limits of a city, where danger from domestic animals upon the track would be comparatively small and the fencing of the road might inconvenience public traffic, not determined.]</p>

<p>Appeal from an order of the superior court of Milwaukee county: R. N. AustiN, Judge.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p> Street railways: Transfer of franchise to operate-road: Easement: Imposed duties: Voluntary surrender: Nonuser. </p> <p>1. A franchise to operate a' street railway is inalienable at common law, but authority to sell and transfer it may be conferred by statute. In this state such authority is given by subd. 7, sec. 1748, R. S., and by ch. 221, Laws of 1883, as amended by ch. 127, Laws of 1891.</p> <p>2. A franchise to operate a street railway is not merely an easement to use the street for the time, in the manner, and under the conditions specified in the grant, and, when accepted and acted upon by the grantee, a contract between it and the public, but it is also a grant from the state, by the acceptance of which the grantee becomes charged with the duty of serving the public, from which it cannot emancipate itself by merely ceasing to operate its cars.</p> <p>3. A street railway was not operated on two blocks during four years and eight months, a period of great industrial depression, and of extraordinary financial difficulties on the part of its successive-owners. During that time, the track had been taken up with the knowledge and acquiescence of the owner and the street paved, but the means of locomotion had also been changed, rendering the old track practically worthless and an entire reconstruction necessary. An ordinance declaring the franchises over such blocks forfeited was introduced, but upon the representation of the then owner that it was its intention to operate the road over such blocks in the near future, was not adopted. Any intention to abandon its rights in the street was expressly denied by the officials of the road. Held, that the nonuser of the franchises had not existed for such a length of time or under such circumstances that surrender of the franchises and its acceptance by the state could be presumed. Combes v. Keyes, 89 Wis. 297, distinguished and limited.</p>

N. AustiN, Judge. This is an action in equity, brought by the plaintiff company, to enjoin the city of Milwauleee from tearing up or removing the tracks which it had commenced to lay on the 24th day of May, 1896, on two'blocks of Washington avenue, or Twenty-Seventh street, in the city of Milwaukee, between Wells street and Chestnut street.

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

H. Johnson, Circuit Judge. The plaintiffs are owners of certain lots, fronting on Cape street, in the Sixth ward of the city of Milwaukee. The defendant is the owner of certain improvement certificates issued against the plaintiffs’ lots. The action is to have the certificates surrendered and canceled. The defendant answered, setting up the proceedings on which the certificates had been issued.

C. Ludwig-, Judge. The action was commenced January 20, 1896, to recover upward of $47,000, alleged to be due for money loaned to the defendants as partners. Pursuant to an order regularly made on the 21st day of January, 1896, by a court commissioner for Milwaukee county, the summons and complaint were personally served on the defendants at Boston, in the state of Massachusetts, on the 23d day of January, 1896.

C. Ludwig-, Judge. It appears from the record that, during the times mentioned, the plaintiff was a manufacturer and wholesale dealer in cigars, in tbe city of New York; that, during the same times, one John A. Stapleton was a retail dealer in cigars in the city of Milwaukee; that between November 15, 1894, and March 21, 1895, the plaintiff had sold and delivered to Stapleton a large quantity of cigars of different varieties, and for which the plaintiff had taken Stapleton’s…

Aupeal from a judgment of the circuit court for Milwau;kee county: D. H. JohNsoN, Circuit Judge. The action is on a contract for grading certain lots in the city of Milwaukee, to recover a balance claimed to be due to the plaintiff’s intestate for work done under the contract.

N. AustiN, Judge. Action to recover damages for tbe death of George Ean, alleged to have been caused by the negligence of defendant’s employees.

Parish, Circuit Judge. The plaintiff in error was convicted of the crime of burglary, and sentenced to- imprisonment in the state prison. The commission of the burglary was clearly proved, and not seriously disputed. The question was whether the plaintiff in error was the person who was guilty of it.

Appeals from a judgment of the circuit court for Eorest county: John Goodland, Circuit Judge.

D. Hastings, Jr., Judge. Action of ejectment. The plaintiff claims title to the lands in controversy under a patent from the United States, issued to him in 1873. The defendants claim under a tax deed issued by Lincoln county to one 0. J. Winton, November 10,1883, on the tax of 1879 and sale of 1880. The lands had been bid in at the tax sale for the county, and the certificates of sale were issued to the county. The county sold the certificates to one John Comstock.

Appeals from a judgment of the oireuit court for Marathon county: Chas. Y. Baedeen, Circuit Judge. Action by the receiver of a judgment debtor to reach certain property in which the debtor had an interest, and subject it to the satisfaction of the judgment. This cause was commenced against Jacob Paff and others. Subsequently he died, and the cause was duly revived against his representative.

<p> Corporation: Stock subscription. </p> <p>A corporation, with the consent of one who had subscribed for a large number of shares of its stock, proceeded to sell out to other • parties its entire authorized stock, not reserving the shares subscribed for by him, and received payment therefor. Held that, in an action between the corporation itself and such subscriber (creditors not being interested), it could not recover on his subscription.</p>

H. Johnson, Circuit Judge. This is an action on a contract of guaranty, which is in the following words: “Whereas, the Wilkin Manufacturing Company, of Milwaukee, is indebted to the Wisconsin Marine dk Fire Insurance Company Bank, of Milwaukee, Wisconsin, in the sum of about $9,000 (nine thousand dollars); “And wheeeas, the said company may hereafter become indebted to said bank for additional amounts; “Now, therefore, in consideration of the premises, and of one dollar to…

<p> Lost will: Presumption as to revocation: Declarations of testatrix. </p> <p>On appeal to the circuit court from a decision of the county court refusing to admit to probate a will alleged to have been lost, the proponent produced evidence establishing the facts that the testatrix made a valid will, the contents of which were clearly proved,, and left it with the notary who drew it; and that after her death it could not be found. The notary could not testify positively as-to what had become of it, but thought the testatrix had taken and retained it. Held, that the presumption of revocation arising from her alleged possession of it and its disappearance was rébutted by evidence of frequent declarations by the testatrix, up to within three days of her death, that it was still in existence, unchanged, and in the possession of such notary, and that the will was properly admitted to probate.</p>

<p>ErRob to review a judgment of the superior court of Milwaukee county: R. N. AustiN, Judge.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>This action was brought to recover the sum of $2,289 • claimed as a balance due upon a promissory note for $4,266, ..given by the defendant to the plaintiff corporation by the name and style of the Masons c& Builders' Association, payable one year and three months after date. The defense was that the note was without legal consideration, and void that the pretended consideration was contrary to public policy and good morals, and that the note was given by and; secured from the defendant, who was a member of the said, association, pursuant to a secret combination and confederation of the plaintiff and its members to exact of and from, citizens of Milwaukee, Wisconsin, desiring to erect and construct buildings, a sum equal to six per cent, in excess of the-actual cost and value of the work to be done, and by secret, means to prevent and suppress competition in bidding for such work that the note in question was given and received for the purpose and as a means of carrying into effect such alleged unlawful combination. There was practically no-dispute as to the facts, and at the close of the evidence the-court directed a verdict' for the defendant.' From a judgment thereon against the plaintiff for costs, plaintiff appealed.</p> <p>At the time the note was given, the membership of the-corporation plaintiff comprised about sixty of the seventy or seventy-five mason contractors in Milwaukee. The masons and builders thinking that they were not receiving fair-treatment in the matter of bids for and letting work from owners and their architects, the association devised and adopted certain rules and by-laws in relation to bids and contracts, as a protection against the practices of which they complained. The association had two sets of by-laws, one of which was for general distribution, and the other, under-which they carried on their operations, was private. They had contracts with material men in the city by which members who complied with the private by-laws could and did,, notably in purchases of brick of the Brickmakers’ Association, receive rebates of thirty-three and one-third per cent.. upon all material necessary for their contracts, and they were thus enabled to underbid nonmembers for doing such work.</p> <p>By reason of the city ordinances, all buildings within fire limits were required to be constructed of brick, stone, or other fireproof material, and by the plaintiff’s private bylaws, if brick was purchased in Chicago, or outside of Milwaukee, where it could be procured much cheaper than of the Brickmakers’ Association, the members of the plaintiff association were required to charge $2 more per thousand for laying them, $1.25 of which went to the Brickmakers’ Association of Milwaukee, and seventy-five cents to the plaintiff association; which it was contended enabled the Brickmakers’ Association to maintain general high prices, and to make such discount to members of the plaintiff association. By the private by-laws of the plaintiff it was required of all its members v<rho washed to compete for any contract or job, public or private, to bring their bids to the rooms of the association the day preceding the one on which bids were to be submitted to the person desiring to build, or his architect or agent, when a committee of such bidders was appointed by a chairman, one of their number, who was to inspect the bids and determine who was the lowest bidder. Such lowest bidder was then required to add six jper cent, to the amount of his bid, before he .could submit.it to the person for whose wrork he was competing, or to his architect or agent. In case his bid was eight per cent, or more lower than the next lowest bid, the bidders present wére to determine how much should be added, over said six per cent., to his bid. All bids made by members were to be made at the rooms of the association, and at no other place; and after bids had been submitted to the owner or architect no member was allowed to change his bid, or do the work except at the figures given in such bid. Members who did not comply with the rules in submitting their bids to the association were “ under no circumstances to submit a bid for the work.”</p> <p>Another private rule was that “ no member shall give a bid to any owner or architect for changes or additions to work under contract. The original contractor shall have the light to bid on such changes or additions without competition, unless the amount is larger than the contract; but other bidders shall go in for the accommodation of the owner, after arranging the same with the original contractor, who will pay only six per cent, of such work; the other bidders having no voice in making such bid.” The successful bidder, ■upon signing a contract, was required to report to the association certain particulars thereof, and file the contract with the secretary within three days thereafter. Another of said rules required him to pay six per cent, of each estimate to the secretary; and when the roof was on the building he was to pay his percentage in full, whether he had received payment in full or not. Members were subject to certain fines for noncompliance with by-laws.</p> <p>In the summer of 1892, and while a member of the association plaintiff, the defendant became the successful bidder for building the G-esu Church in Milwaukee, for the sum of $71,000, but he submitted his bid for doing the work directly to the congregation, and did not submit it to the association plaintiff, and there was no addition of six per cent.' made to his bid for its benefit. The association claimed that the defendant should give his note for the usual percentage of six per cent., and, after he had been visited by a committee, he was notified to attend a special meeting to consider the subject, when, after some discussion, he finally gave the note in question for the required amount, it being understood that he would remain a member.</p> <p>He testified, in substance, that he had other contracts, and he apprehended that if he did not give the note the association might cut him off, and he would have trouble in relation to his work; that he understood, if he did give it, he would have the benefit of the association in rebates. He also testified that be had rebates on material for the church work, but that he got them by reason of prompt payment, and not through the association. The ordinary method of getting rebates was by obtaining a slip for that purpose from the secretary, but the evidence showed also that they were frequently arranged between the material men and members. The evidence showed that the only consideration for the note was the benefits and advantages received by the defendant, or expected to be, such as were provided and secured by said by-laws and the methods of transacting business under them.</p> <p>They argued, inter alia, that to make the plaintiff association an unlawful combination there must be proof that it was organized for the purpose of exacting a higher and greater sum out of the building public, and also that such combination was complete, so that the public was at the mercy of the members thereof. Kellogg v. Larlcin, 3 Pin. 123,131; Laubenheimer v. Mann, 17 Wis. 542; National Ben. Go. v. Union Hospital Go. 11 L. R. A. 437; Richardson v. Buhl, 6 id. 457. It must also appear that the public has suffered by reason of the combination. Leslie v. Lorillard, 1 L. R. A. 456; Diamond Match Go. v. Roeber, 106 N. Y. 473; Horner v. Graves, 7 Bing. 735; People v. North River S. R. Go. 2 L. R. A. 39. The defendant could not attack the note, even if the contract was unlawful. National Distilling Go. v. Gream Oity Imp. Go. 86 Wis. 352.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: R. FT. Austin, Judge.</p> <p>The case is sufficiently stated in the opinion.</p> <p>They argued that the intention of the deceased member as to who should be beneficiary ought to govern; that the promise to pay to the person designated in the first certificate was conditioned that the member had not otherwise disposed thereof, and that in this case he had disposed of it and received another, and that, in such a case, the beneficiary had no interest, and no standing to contest the validity of the change. If such change was ineffectual, there was no person entitled to the benefit, and it lapsed to the society. Riblack, Ben. Soc. & Acc. Ins. 32, 272, 340, 412, 418; Martin v. Stubbings, 126 Ill. 387; Otarle, v. Durand, 12 Wis. 223, 233; Hellenberg v. Dist. No. 11. O. B. B. 94 R. Y. 580, 585; Ballou v. Gile, 50 Wis. 614; Renner v. Supreme Lodge B. S. B. Soe. 89 id. 401, 404. The member holding the certificate had the same right to assign it as had the holder of a life policy, with the assent of the society. Bursinger v. Baoik of Watertown, 67 Wis. 75, 81, and cases -there cited; Estate of Breiiung, 78 id. 33, 35; Brown v. Mansur, 64 R. H. 39; Eastman v. Provident M. R. Asso. 62 id. 5-55; Maneely v. Knights of Birmingham, 115 Pa. St. 305; Mitchell v. Grand Lodge L. K. of M. 70 Iowa, 360'; Walter v. LLenzel, 42 Minn. 204. There is nothing in the statutes or in the constitution of the society prohibiting such a change of beneficiary, and if there was in the latter the society could waive it. Morrison v. Wis. O. F. M. L. Lns. Go. 59 Wis. 162, 169; MoGoy N. W. Mut. R. Asso. 92 Wis. 577, 583.</p> <p>They contended, inter alia, that to allow a member to dispdse of his certificate for the benefit of creditors was not only to assume the powers of a life insurance company, but to deprive the heirs of a member of the aid intended for them; and for both reasons its acts would be ultra vires and void. Ballou v. Gile, •50 Wis. 614; Britton v. Supreme Gouneil R. A. 46 R. J. Eq. 102; S. G. 19 Am. St. Rep. 376.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>Action to enforce the personal liability of stockholders of a corporation for its debt contracted before the statutory requirements as to subscription and payment for stock had been complied with.</p> <p>. Prior to the 1st day of September, 1893, in contemplation of organizing a corporation to publish a Democratic morning newspaper in the city of Milwaukee, a subscription list was circulated, for the purpose of obtaining signers thereto of persons who were willing to take stock in such an enterprise. The subscription paper was headed as follows: “ We, the subscribers, do hereby subscribe for the capital stock of a corporation to be organized under the laws of Wisconsin, to own and operate and publish a Democratic morning newspaper in the city of Milwaukee. Our said subscriptions to be paid as follows, to wit, twenty-five per cent, at the time of the organization of said corporation upon call of the treasurer, and the remaining seventy-five per cent, in instalments, as the same may be called upon assessment levied by the board of directors.” All the defendants signed such subscription list prior to, or soon after, the 1st day of September, 1893.</p> <p>For some time prior to such date Clarence L. Clark operated a publishing establishment at the city of Madison, Wisconsin, and there published a Democratic newspaper called the “Madison Times.” It was in contemplation that the plant would be removed to Milwaukee, and sold to the proposed corporation. Pursuant to such scheme articles of organization of a corporation were duly prepared, according to the laws of this state on the subject of the organization of corporations, the original of which was filed and recorded in the office of the register of deeds for Milwaukee county, Wisconsin, on the 5th day of September, 1893, arid a properly verified copy thereof was duly filed in the office of the secretary of state. Clarence L. Clark was one of the chief promoters of the enterprise, and one of the signers of the articles of organization.</p> <p>About the time such articles were filed Clark removed the aforesaid newspaper plant from Madison, Wisconsin, to Milwaukee, and there rented rooms and fitted the same up ready for the use of the corporation. All of the business of making such removal, renting rooms, and fitting up the plant in Milwaukee, ready for operations, was conducted by Clark, rip to the meeting for the purpose of perfecting the organization of such corporation, hereafter mentioned. On the 27th day of September, 1893, pursuant to a request made by Clark, as manager of the corporation, EL- A. Fram-bach, on behalf of plaintiff, visited Milwaukee, and there contracted to sell to the Times Printing Company a quantity of paper for the use of such company. The business was done with Clark, who assumed to act for the corporation. He told plaintiff’s agent that the company was incorporated, and to bill the paper to it. Thereafter, pursuant to the contract, the paper was sent to the Times Printing Company, and after the 6th day of October, 1893, the same was used by the corpoi4tion in the conduct of its business, but without notice on the part of the directors of the corporation, or any of the defendants, that any one was indebted to plaintiff therefor.</p> <p>On the 6th day of October mentioned the persons who had signed the subscription paper, including defendants, convened for the purpose of organizing the corporation. Such subscription paper was then presented, and the signers participated in the organization, which was then and there completed, Clark being chosen manager. Thereafter, under the directions of Clark, the paper theretofore purchased was used. Clark subscribed for $40,000 of the stock, and turned over to the corporation the newspaper plant theretofore fitted up by him as aforesaid, and all material on hand, with the good will of the Madison Times and its subscription list, also the franchise of the United Press Association, in payment of such subscription.</p> <p>This action was brought against the defendants as stockholders, under the statute which provides that if any corporation contracts debts before half its stock is subscribed for, and twenty per cent, thereof paid in, its stockholders then existing shall be personally liable for such debts. On the trial the facts above set forth appeared by the evidence uncon-troverted; whereupon the'court, on motion, directed a ver-diet in favor of the defendants, to which plaintiff excepted. Judgment was entered pursuant to such verdict, from which .plaintiff appealed.</p> <p>argued, among other things, that the contract sued on became the contract of the Times Printing Company by ratification, and that such ratification related back to the inception of the contract. The subscription for stock signed by the defendants was absolute on its face, and not conditional, and the contract made in their behalf became binding on the corporation immediately upon its organization. Richelieu Hotel Go. v. International M. M Go. 140 Ill. 248.</p>

<p> Constitutional law: Police power: Drunkards, county liability for treatment of: Taxation. </p> <p>Chapter 203 of the Laws of 1895, providing that habitual drunkards who are “pecuniarily unable to procure and pay for treatment for such disease ” may, by order of the county court or of the judge thereof, be sent for treatment to some institution in the state for the cure of such disease at the expense of the county in which they reside, is not a legitimate exercise of the police powers of the state. It also involves the imposition upon the county, without its consent, of a tax for the benefit of private institutions and individuals, not the legitimate objects of public charity. It is therefore unconstitutional and void, and an institution to which a drunkard has been so sent for treatment cannot recover from the county therefor.</p> <p>See note to this case in 36 L. R. A. 55.— Rep.</p>

<p> Ejectment: Trespass: Election of remedies. </p> <p>An intrusion by one lot-owner of his foundation wall upon the land of the adjoining owner, without permission, is a trespass, and may be treated as a disseisin; but if the owner of the land so intruded upon extends his own building to his line and rests it upon such wall and occupies the same continuously, he thereby elects to treat the intrusion as a mere trespass, and cannot maintain ejectment therefor.</p> <p>On the question what disseisin will support ejectment, see note to Harrington v. Port Huron (86 Mich. 46), in 13 L. R. A. 664.— Rep.</p>

H. JohNsoN, Circuit Judge. This is an action for an alleged libel published by the de- ■ fendant in a semimonthly newspaper published in the German language at Milwaukee, Wisconsin, under the name of “ Der Landwirth,” of which the defendant was the publisher and proprietor. It was alleged that it had a large circulation among the farmers and citizens of the state of Wisconsin of German descent.

G-. Siebeceeb, Judge. The plaintiffs are the members of several trading copart-nerships, which are creditors of one E. Steinkirchner, who was at one time a trader in Milwaukee. The defendants Espenhain and Bartels are also creditors of Steinkirchner. The defendant B'wrnham was the sheriff of' Milwaukee ■county. Steinkirchner absconded May 14,1889, taking with him a large amount of property or money.

0. Ludwig, Judge. Action to recover a balance alleged to be due for rent. Plaintiff owned a building known as the Goldsmith Building, located at the corner of Wisconsin and Jefferson streets, in the city of Milwaukee, Wisconsin. By written contract, ■on the 1st day of May, 1893, he leased to the defendant rooms Nos. 408 and 409 in such building, for the term of five years, for $991 per year.

C. Lodwig, Judge. The case is fully stated in the opinion. They contended that there was no evidence of negligence on the part of defendant, and that the motorman simply failed to choose the best method of avoiding the accident. Balter v. Eighth Ave. B. Go. 62 Hun, 39; Bishop v. Belle Oit/y St. B. Go. 92 Wis. 139.

Appeals from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge. This is a garnishee action. The facts were largely stipulated, and are as follows: On the 24th day of May, 1893,. the main defendant, Hubert Deuster, obtained a verdict for $1,500 against the garnishee defendant, the Milwaukee Street Railway Company, in an action to recover for personal injuries. Judgment was not entered on said verdict until the 20th day of June following.

NT. Austin, Judge. This was an action on seventeen separate insurance poli•cies, set out in the pleadings, issued to George Enger and August Kress, partners, doing business under the firm name •of Enger, Kress Co., on or about July 29,1893, upon their certain real estate and appurtenances, machinery, and appliances, patterns, stock in trade, manufactured and in process of manufacture, etc., etc., all described in six items.

~W. Bubnell, Circuit Judge. Action for a balance due from a guardian on settlement of his account. The plaintiff became insane. She had a little property, and the defendant was made her guardian. He deposited some of her money, temporarily, in a bank, and took a certificate in the following words: “ Berlin, Wis., Apr. 19, 1890. Thos.

W. Ruenell, Circuit Judge. The case is fully stated in the opinion. argued that the town board acted not in a judicial but in a purely ministerial capacity in the matter of revoking a license, and the prejudice of one member could not invalidate their action. The revocation of a license is not a taking of a property right. State ex rel. Starkweather v. Common Council of Superior, 90 Wis. 612.

W. Bubhell, Circuit Judge. The case is stated in the opinion. To the point that the ■order was appealable as a final order affecting a substantial right in a special proceeding, they cited Hekla F. Ins. Go. v. Morrison, 56 Wis. 133; Ga/rney v. Qlhssner, 62 id. 493; Morse v. Stockman, 65 id. 36.

W. Buenell, Circuit Judge. This is an action, in the nature of quo warranto, to try the title to the office of constable in the city of Oshkosh. The facts were not in dispute. The defendant’s answer to the relation was stricken out as frivolous, and, no amended answer being served, judgment for the plaintiff was rendered, and the defendant appealed.

W. Bhehell, Circuit Judge. This was an appeal from an assessment of damages and benefits in the matter of the condemnation of certain land belonging to Alexicm Brothers, a corporation, for the opening of Wisconsin avenue, in the city of Oshkosh, through block 133, said block being owned and occupied by the plaintiff, fronting on two streets, namely, Rew York avenue and Prospect avenue, the strip, taken being sixty feet wide .and. 604 feet in length, running due north and…

Appeals from judgments of the circuit court for Winnebago county: Geo. W. Buehell, Circuit Judge. Action to recover on several policies of insurance against loss by fire.

<p> Action by assignee to recover notes fraudulently transferred: Finding-sustained. </p> <p>1. A purchase of notes from a bank by a depositor, he paying therefor with his check on such bank, though made but a few days before the failure of the bank, will not be held fraudulent in an-action by the assignee of the bank to recover such notes, if the-transaction is proved to have been conducted in good faith on the part of the purchaser, without knowledge of the insolvent condition of the bank, or of any fraudulent intent on the part of its-officials, and without notice of any facts which should have put them upon inquiry.</p> <p>2. A finding in such action that the transfer was not fraudulent will-not be disturbed on appeal, if there was sufficient evidence to support it, though there was evidence which might have sustained-an opposite finding.</p>

S. Gilson, Circuit Judge. On the 21st of November, 1894, Ira A. Bean presented to the judge of the circuit court for Sheboygan county a petition in that court, while said judge was holding court in Fond du Lac county, representing that Gertrude Klein, a minor, born March 5, 1890, was residing in the county of Sheboygan; that Nicholas Klein, her father, was an habitual drunkard, residing in the city of Sheboygan, and was not a fit and proper person to have the care and…

E. Riohtee, Judge. Action for assault and battery and false imprisonment. On the 1st day of September, 1893, in the early morning, the plaintiff was discovered by the defendants, in a boat floating upon the waters of an expansion of Rock river, in what is known as “ Horicon Marsh.” They supposed he was there for the purpose of shooting wild ducks.

S. Gilson, Circuit Judge. Defendants Gottfried Bluhm and Eliza Bluhm were •husband and wife. Gottfried Bluhm was'charged by the father- of one Ida Hell, a young girl of the age of fifteen years and unmarried, with being the father of a child with which she was pregnant.

S. G-ilsoh, Circuit Judge. The facts of the case are fully stated in the opinion. They took the ground that the second will revoked the bequest of furniture to I. W. by the first, in that it expressly omitted reference thereto and limited the total amount bequeathed to her. Where there are conflicting clauses the later one prevails. Hendershot v. Shields, 42 A. J. Eq. 317; Heidlebaugh v. Wagner, 72 Iowa, 601.

•Appeal from an order of the circuit court for Fond du Lac county: N. S. Gilson, Circuit Judge. The case is stated in the opinion. contended that the right to file a notice of Us pendens was an absolute right. Niebuhr v. Sohreyer, 13 Daly (N. Y.), 546. The statutes of this state give no authority to cancel a Us pendens except for a failure for one year to serve the summons. S. & B. Ann. Stats, sec. 3187; sec. 1, ch. 19, Laws of 1893.

S. Gilson, Circuit Judge. This action was brought upon a policy of fire insurance for $2,000,— $1,500 on a frame building and saloon at Two Rivers, Wisconsin; $100 on saloon furniture; $100 on wines and liquors; and $300 on household and kitchen furniture, beds, bedding, family stores, etc. One Orotegui was joined as plaintiff, by reason of his mortgage interest in the real estate, amounting to $1,200.

S. Gilson, Circuit Judge. The action is for the recovery of damages for injuries which the plaintiff received upon one of the highways of the-defendant town. At the place of the accident the road was sixty-six feet wide. There were three tracks over which the travel went. One, near the center of the highway, had been worked by hauling gravel upon it. The westerly track was one where teams had gone, to avoid the greater dust, over the turf. No work had been done upon it.

S. Griswold, Judge. The case is stated in the opinion. They contended that sec. 7, ch. 99, Laws of 1891, so amended all laws then in force relating to appeals from justices’ courts in Waukesha county, that appeals, whether in civil or criminal cases, should be taken to the county court. The municipal court was in fact acting in this matter as a justice’s court. If taken to the circuit court the appeal would have been dismissed.

EeeoR to review a judgment of the circuit court for Iowa county: Geo. Clementson, Circuit Judge. The plaintiff in error was tried and convicted, in the circuit court for Iowa county, of the crime of murder in the first degree, upon an information charging him, in the usual form, with having killed and murdered one John Quirk, March 17,1894 After sentence, he sued out a writ of error.

<p>Appeal from an order of the circuit court for Richland county: G-eo. ClemeNtsoN, Circuit Judge.</p> <p>The action is by George Krouskop, his wife, and three of his creditors, against A. H. Krouskop, as principal defendant, and several other creditors of George, who refused to join as plaintiffs. A demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, was sustained. This appeal is from an order sustaining the demurrer.</p> <p>The complaint is very long. The substance, so far as necessary to show the questions involved, is as follows: The plaintiff George Krouskop was engaged in business in Eich-land Center, for many years. In 1881 he became financially embarrassed, and made an assignment for the benefit of his creditors. Through the assistance of the defendant A. II. Krouskop, who became surety for considerable sums which' he afterwards paid, he compromised with his creditors and resumed business. Becoming again embarrassed in 1888, with creditors pressing and commencing actions, he gave a mortgage upon all his property, both real and personal, to A. H. Krouskop, Avho was his brother. His property nearly all consisted of real estate, said to be worth $35,000, on which there was a mortgage of $7,000, which he procured to be assigned to himself, and some unpaid taxes, which he paid. There was due to A. H. Krouskop $6,500. It is alleged, in effect, that the two Krouskops agreed in the-opinion that if the property was subjected to the payment of the debts in the usual manner, by execution sales, it would be sacrificed and not pay the debts, while, if that could be prevented, the property might be sold by A. H. Krouskop,. by proper management, so as to realize enough to pay all the debts and leave a handsome surplus to George Krouskop. It is alleged that the purpose of the execution of the mortgage was, in good faith, to make an assignment for the benefit of all the creditors of George Krouskop, of all his property,, to be sold, handled, and disposed of ffiy A. II. Krouskop, and applied by him to that use. It is alleged that A. H. Krous-kop assured both George Krouskop and his wife, “ each separately and apart,” that he would take title to the property, and apply it faithfully to the payment of all the debts of George Krouskop, and return whatever should remain to them. The purpose was kept secret, and not disclosed to creditors. The creditors put their claims in judgments, which became liens upon the lands. The mortgage was afterwards foreclosed, with the consent of George Krousl&op, for the purpose of cutting off the liens of these judgments, so that the lands might be more easily disposed of, to carry out the original intention of the parties to the mortgage. The lands were bought in at the foreclosure sale, for about half their value, by A. II. Krouskop, who now claims to be sole owner, and refuses to carry out the agreement whereby he obtained title. The complaint demands judgment that the transaction be declared a trust for the benefit of the creditors of George Krouskop; that A. II. Krouskop be required to account, and “ to carry out all of the conditions and provisions under which he took the property.”</p>

ClbmeNtsoN, Circuit Judge. On the 80th day of January, 1895, a judgment of foreclosure and sale was entered in the usual form. Such proceedings were thereafter Nhad that the mortgaged premises were duly advertised for sale on the 2d day of April, 1896. The amount then due was about $29,438. The premises consisted of about 900 acres of valuable lands, on which were several dwelling houses and other buildings. Such lands included the homestead of one of the defendants.

<p>. Appeal from a judgment of the circuit court for Grant ■county: Geo. OlemeNtsoN, Circuit Judge.</p> <p>The case is fully stated in the opinion.</p> <p>They contended that the falseness of the applicant’s statements as to his temperate habits avoided the contract. Baumgart v. Modern Woodmen, 85 Wis. 546; Blumer v. Phmnix Ins. Go. 45 id. 622; 8. G. 48 id. 535; Cooke, Life Ins. §§ 15-17. The policy was absolutely conditioned on the truth of those statements, and the evidence as to the knowledge of the person procuring the application was wrongly admitted, as tending to vary the contract by parol. Kenyon v. Knights Templars ds M. M. A. Asso. 122 N. Y. 247-257; Barteau v. Phmnix Mut. L. Ins. Go. 67 id. 595; Foot v. AEtna L. Ins. Go. 61 id. 571-576; Vose v. Eagle I. <& H. Ins. Go. 6 Cush. 42-49; Galbraith v. Arlington Mut. L. Ins. Go. 12 Bush, 29; Westropp v. Bruce, Batty, 155.'</p>

<p>Appeal from a judgment of the circuit court for La Pay-ette county: G-eo. ClemeNtsoN, Circuit Judge.</p> <p>This is an action to recover for personal injuries received by the plaintiff while at work as a miner in the defendant’s lead and zinc mine, by the discharge of a dynamite blast under circumstances which, it is alleged, established actionable negligence on the part of the defendant. The gist of the complaint is that the plaintiff was set to work by a shift boss in a certain part of the mine where there were concealed unexploded blasts known to the shift boss, but not to the plaintiff; and that plaintiff, in ignorance of the danger, while drilling and preparing for a blast, was injured by the explosion of one of the concealed blasts. The facts appearing by the plaintiff’s evidence were substantially as follows: The defendant’s mine is about 100 feet below the surface of the ground, in solid rock, the mining being carried on in drifts of varying width and height. Holes were drilled in the forehead of the drift by steam power. These holes were then charged with dynamite, which was exploded by electricity, several such blasts being frequently discharged simultaneously. These holes were sometimes drilled so deep that the explosive power of the dynamite was insufficient to rend the rock and the force of the explosion was not observable at the mouth of the hole. Such holes in which a blast had been fired, but had not apparently rent the. rock, were called “ butts ” or the “ butt end ” of a hole. The plaintiff was an experienced miner, and had worked for defendant about a month prior to the accident in question.</p> <p>The evidence showed that one Thomas Oadden was also in the employ of the company at the time of the accident, and was what was termed a “ shift boss.” The duties of the shift boss appear to be to direct the men in .the mine where to work. The shift boss was called as a witness, and testified that on the 1st of July, 1894, he loaded six holes in the forehead of a certain drift with dynamite, and endeavored to explode the same by electricity; that there were three holes that had wires sticking out of them after the blasts had been fired, and that this was evidence that the charges in the holes had not exploded. The evidence further showed that no further work was done at this place in the mine until the 17th day of July following, at which time the shift boss placed the plaintiff and one Hugh Oadden- at work at the forehead in question. The plaintiff testified that he did not hear the shift boss say anything about unexploded blasts, but his fellow laborer says that the shift boss said that there were two unexploded blasts there, and that they must look out for them. The two workmen found two holes, which had wires sticking out of them, and concluded that they were the unexploded blasts, and they carefully scraped up the tamping, put in some additional dynamite, and fired them. The testimony tends to show that no other holes in that vicinity had wires sticking out of them. After firing these two blasts, the plaintiff and his fellow workman quit work for the day, and returned on the following day to the same place. There were several butts of holes in the forehead in the immediate vicinity, and the evidence tends to show that there was no way of distinguishing a butt of a hole (that is, a hole in which a blast had been fired without apparent result) from a hole in which no blast had been fired. The plaintiff and his fellow workman, finding a hole without any wires sticking out of it, concluded that it had been fired unsuccessfully, and proceeded to scrape out the contents of it so far as possible, and, finding it in the proper place for a blast, started to drill it deeper. This hole was in fact the hole containing the unexploded blast. After drilling for a time the dynamite in the hole exploded, seriously injuring plaintiff. Upon these facts the plaintiff was nonsuited, and appealed.</p> <p>They contended that the duty of the “ shift boss ” did not involve any contract obligation of the master, but he was a mere fellow-servant of the miner. Dwyer v. Am. Exp. Co. 82 "Wis. 307-310; Stutz v. Armour, 84 id. 623; Crispin v. Babbitt, 81 N. Y. 516; Mancuso v. Cataract Const. Co. 87 Han, 519; Flynn v. Salem, 134 Mass. 351; Loughlin v. State, 105 N. Y. 159, 163; Hussey v. Coger, 112 id. 618.</p>

ClemeNtsoN, Circuit Judge. This action was brought on a certificate of membership-issued by the defendant to Bridget Boyle, April 16, 1892,. for the benefit of the plaintiffs, in the sum of $1,000, on her application dated April 1, 1892. The assured died on the-27th of April, 1892.

B. Wyman, Circuit Judge. The action is brought to recover damages for the death ■of Michael Nash. The deceased was engaged in the employment of brakeman on defendant’s road. He was killed while ■attempting to couple a flat car loaded with timber to an engine. The timber was so loaded that it projected over the ■body of the car about even with the draft iron, which was about ten inches below the floor of the car. The engine was backing down slowly towards the car.

<p>Appeal from a judgment of the circuit court for La Crosse county: O. B. Wyman, Circuit Judge.</p> <p>This is an appeal from a judgment refusing to admit to probate a paper writing dated March 24, 1893, purporting to be the last will and testament of George H. Pierce,, deceased. It appears from the record: That the deceased was born in Massachusetts, June 17, 1829. That he was a machinist by trade. That he married and moved to Boston. That January 3, 1853, his first child, the contestant herein, was'born. That in the spring of 1858 the deceased came west, and settled at Warren, Illinois. That his wife and child followed in the fall of 1858. That in 1859 they moved to Mineral Point. That he became a master mechanic at that place. That they continued to live at Mineral Point ■until 1873, when he separated from his wife, and with his three children moved to La Crosse, and bought a sash, door, and blind factory. That he had in all four children by his first wife, to wit: Lucy, born August 15, 1860, and who married, but died March 17, 1881, without issue; Gertie, born in 1866, and who married in June, 1888, and died December 26, 1892, without issue; and Wilbor, who was born and died at Mineral Point, when about seven years of age; and the contestant, who was nearly of age when he moved to La Crosse. That the contestant, Frank A., worked for his father until after he became of age, in 1874, and then went to Chicago, where he was married November 6, 1875, and the nest year he and his wife went to California, where he remained until 1880, when he visited his father, at his request. That during all that time he had kept up a friendly correspondence with his father and mother. That in the meantime he had become the father of four children. That after the deceased had lived separate and apart from the mother of his children five years or more, and some time prior to 1880, they were divorced, in a suit brought by the wife. That about that time the deceased married a second wife, with whom he lived until June, 18S8, when she died. That Mr. Granke, father of the sole legatee and devisee, died October 10,1890. That he was a saloon keeper, and used to work for the deceased. That at the time of his death he owned property on Rose street and Caledonia street. That after his death his widow, Mrs. Granite, rented the saloon property on Rose street to Hattie Lovejoy for a millinery store, and part of the time lived upstairs with her family over the ■store, and part of the time on Caledonia street. That the deceased was first known to go with any of Mrs. G-ranke’s family in February, 1892, when he took Tillie, her youngest daughter, to the theater. That he went with her some from that time until the G-ranke family moved to Chicago, in May, 1892. That Tillie got married July 13, 1892. That the deceased went with Miss Adelme M. Gromlte some in the winter of 1892-93. That a witness, Dunlap, who was in the testator’s office in 1892, testifies that sometime in the late summer or early fall of 1892 he opened a letter addressed to the deceased, written by Adeline, from Chicago, and gives the substance of it from memory, to the effect that she said to him: “ I hope you will excuse me, a stranger, ■for addressing such a letter to you. I hope you will excuse Tillie for what she has done. You know she is young and giddy.” He then said: “ It went on, and asked if she could not, in effect, take Tillie’s place.” ’ He said again: “ It was a two-page letter. It was simply palaver and formal. I cannot tell you what it was. It was simply this, in numerous words: ‘'Will you consider me in Tillie’s place?’” That March 21, 1893, th¿ testator went alone to the office of his attorney, and caused to be drawn up, and then and there executed, the instrument here in dispute, and which instrument is to the effect that, after the payment of his just debts and funeral expenses, he gave, devised, and bequeathed unto Miss Adeline M. Granice, of La Crosse, all the restj residue, and remainder of his estate, both real, personal, and mixed. That said instrument also contained this provision: “ (2) I have heretofore given to and expended for my son Frank Allen Fierce a sufficient sum. I have not seen or heard from him in many years, and do not even know that he is alive, but, in the event of his being alive, I make no provision for him.” That this instrument was duly attested in the presence of two subscribing witnesses, and is in all respects the same as the will executed by him December 23, 1892, being three days before the death of his daughter Gertie, except that he had bequeathed therein to Gertie a legacy of $500. That just prior to the will of December 23, 1892, he had been quite sick. That June 15, 1893, the deceased conveyed to Miss Adeline M. Granice lots 2 and 3, block 13, of the original plat of the village of North La Crosse, recorded July 17, 1893, reciting a consideration of $1,100. That June 19, 1893, the deceased was secretly married to Adeline M. Granice. That July 31,1893, the deceased and Adeline M., his wife, conveyed the same lots to Benjamin F. Bryant, reciting a consideration of $5,000, and the same was recorded August 2, 1893. That July 31, 1893, Benjamin F. Bryant conveyed, by quitclaim deed, to Mrs. Adeline M. Pierce, the same premises, reciting a consideration of $5,500, and the same was recorded August 2, 1893. That February 9, 1894, the alleged testator died, leaving an estate which the contestant claims to be of the value of $25,000. That August 13, 1894, the will of March 24,1893, was admitted to probate in the county court after a contest.</p> <p>The contestant having appealed from that judgment to the circuit court, the case was retried, and at the close of the trial the jury returned a special verdict, to the effect (1) that the will of George H. Pierce in controversy was made, signed, witnessed, and executed in due form of law; (2) that said George H. Pierce, March 24, 1893, when the proposed will was made, was not of sound and disposing mind and memory; (3) that George H. Pierce, at the time of making said will, was under undue or improper influence on the part of Adeline M. Granice, Caroline Granke (the mother), Clara Granke, and Tillie Granke, or one or two of said persons, which, influenced said Pierce to make the proposed will. Upon that verdict, the contestant duly moved for judgment disallowing the probate of the instrument as the last will of said George H. Pierce, deceased; and the proponent duly made his motion that the court disregard said verdict, and find in favor of the proponent upon all the issues submitted in this case, and upon such finding admit to probate said instrument, propounded as the last will and testament of said George H. Pierce, deceased, or else set aside the verdict, and grant a new trial.</p> <p>After stating certain things which tended to show the mental capacity of the deceased at the time of making the alleged will, and that it was not procured by undue influence, the trial court, among other things, expressed the following opinion:</p> <p>“ On the other hand, there are many circumstances in this case which tend to support the contention of the contestant on these two propositions. . . . The whole life of the deceased has been before the court, in a measure, by the testimony in this case; and it clearly appears that his manner of living and his manner of doing business and his habits in some respects were materially different during the last two or three years of his life than they had'been before, while he was a resident of this city. His associations, to say the least, were peculiar, and the evidence tends to show that he associated with people of questionable repute; and the testimony tends to show that the management and care of his entire property was essentially different in the past two or three years of his life than it was before. This question was submitted to the jury, and the jury in this case have found that these changes in the method of doing business, and changes in the character of his associates, show, from the facts and circumstances in this case, that he was not in his usual sane mind. The evidence on this point is conflict-' ing. There is evidence which, if taken as true and consid•ered as true, certainly establishes the proposition that he was of sufficient mind and disposing memory to make a valid •will, and there is other evidence in this case which, if true, is sufficient to support the contention of the contestant in this case that he was not of sufficient mental capacity to make a valid will at this time. The controversy and this dispute upon the evidence in this case was submitted to the jury.</p> <p>“ The case was quite carefully tried, fully considered, ably argued, and the jury, in passing upon this matter, have found, as a matter of fact, that he was not of sufficiently sound mind and disposing memory at the time this will was made to make a valid will. And the question now comes as to whether the court shall disregard this finding of the jury, and set this finding aside on this controverted question, and declare and decree that he was of sufficient mental capacity to make a valid will at that time. ... In view of this •contradictory testimony, the court is inclined to think, and ■the judgment of the court is, that the verdict of the jury should be respected, and that the court should be guided, in ■a measure, as far as the facts are concerned, by the determination of twelve jurors upon this controverted part of the testimony.</p> <p>“Further, as to the question of undue and improper influence on the part of Miss Granice: This is one of the important features of this case. Taking any part of the testimony alone, the court is unable to say that any single •circumstance of itself is sufficient to support the finding of the jury that there was undue influence exerted upon Mr. Pierce at the time this will was made. But there are many ■circumstances which tend to show that there might be undue ■influence, and the jury have found, from all the evidence in this case, and from the circumstances that were shown on the trial by several witnesses, — taking these circumstances together,— they formed the opinion, and so expressed it in "their verdict, that there was such undue influence exerted upon Mr. Pierce at this time by Miss Granice that it was not the will of Mr. Pierce, but was the will of Miss Granice, that was made on the 24th of March, 1893, by the deceased. ■On this branch of the case there is plenty of evidence which ■supports the finding, and there is evidence which, if true, supports the proposition contended for by the contestant in this case.; and on this controverted part of the evidence the jury have found, as a matter of fact, that she did exercise such undue influence upon the deceased that this instrument was not the instrument of the deceased, but was rather her will and her request, and that the influence ivas undue. • So that the judgment of the court is that this finding' of the jury on this controverted evidence should be respected by the court, and that this finding should aid the court in determining what the fact is in this case; and, guided by the verdict of the jury, the court is of the opinion that the verdict of the jury shall be adopted and considered by the court as the finding of the court upon these two motions; and, as ■such, the motion of the contestant will be granted in this •case, that the probating of the will be refused, and the probating of the will be disallowed; that judgment be rendered that the proposed will be declared not the proposed will and testament of the deceased.”</p> <p>Prom the judgment entered pursuant to the verdict and the findings of the court, the proponent and the legatee ■named in the will bring this appeal.</p> <p>'They contended that there was no affirmative evidence of undue influence, and that evidence of the reputation of the sole legatee for chastity was improper and did not tend to prove undue influence. That such influence will be presumed when parties live in immoral relations is not the law. Main v. Myder, 84 Pa. St. 217, 225; WainwrigMs Appeal, 89 id. 220; Heilbrmi’s Estate, 9 Pa. Co. Ct. R. 350. That fact may be considered only in connection with affirmative evidence. Matter of Monclorfs Will, 110 N. Y. 450, 456; Kessinger v. Kessinger, 37 Ind. 340; Monroe v. Bar-day, 17 Ohio St. 302, 314, 317; Davis v. Oalvert, 5 Gil'l & I. 269; McClure v. McClure, 86 Tenn. 173. The admission of testimony as to the habits, conduct, and bearing of the testator, and of his declarations was improper. So, also, was the refusal to allow a physician to testify as to his sanity. Fraser v. Dennison, 42 Mich. 209, 224; Denning v. Butcher, 91 Iowa, 425; Will of Jenlcins, 43 Wis. 610.</p>

M. Webb, Circuit Judge. This was an action of replevin to recover possession of a stationary engine which formed the motive power 'of an electric lighting plant at New London. Judgment by default was rendered for the plaintiff, adjudging return of the engine or the recovery of $1,200, the adjudged value, in case delivery could not be had. The judgment was paid two days later by one Sherman, the owner of the real estate.

<p> Agency: Evidence: Error, when harmless. </p> <p>1. In an action for the price of sleds alleged to have been sold by M. to Q. on his representation that he was authorized by T., deceased, of whom the defendant is administratrix, to buy them in his name, he giving an order on T. for the price, held, that letters written by T. to M. after he had been notified of the purchase, in "the first of which he asked for time for payment, in the second of which, written four months later, he promised to send the ■ . money soon, and in the third, some two months later, he asked M. ±0 come to his place if Q. had not paid for the sleds, and they would determine what should be done, though not constituting-any part of the contract, were competent evidence as to Q.’s authority to buy the sleds on the credit of T., to he considered by the jury for what they were worth in connection with all the other evidence.</p> <p>2. The exclusion of an answer to a question asking an explanation of letters put in evidence, if error, is harmless where the witness had already testified' fully as to all that the question was calculated to elicit.</p>

<p> Master and servant: Damages: Waiver. </p> <p>1. By retaining in his service a servant, hired for a term to perform . work requiring reasonable skill and diligence, after knowledge of the defective quality of his service, and by paying him the stipulated wages in proportion to the time he has worked without objection on that account, the master may waive such breaches of the contract as relate to the quality of the service. His doing so is at least prima facie evidence of such waiver.</p> <p>'2. In an action by the servant to recover wages for the balance of the term, on the ground of a wrongful discharge, he is not entitled to have his expenses in seeking other employment deducted from the credit to be allowed the master on account of wages earned elsewhere.</p>

M. Webb, Circuit Judge. Action for personal injury alleged to have been inflicted upon plaintiff by a servant of defendant. William Usher, a son of defendant, about sixteen years old, with a boy by the name of Bert Seeber, on or about the 19th day of August, 1894, while on a hunting expedition, stopped at the residence of a Mr. Mack, for the purpose of procuring a string with which to tie together some squirrels they had killed.

<p> Receiver, accounting by: Payment of taxes: Payment to surety company. </p> <p>1. A receiver, appointed in an action to have a bank declared insolvent, cannot resist payment of a tax assessed against such bank, which is based on a property statement made by its cashier to the assessor in good faith before its insolvency, because the bank is estopped by such statement, even though it had in fact no property liable to taxation,— the property listed being its own bank stock which ought to have been assessed to the stockholders,— and the receiver is also estopped thereby. He, therefore, should be credited on his accounting with the amount paid on such tax, even though he made it without authority previously obtained</p> <p>2. A receiver, on whose bond a surety company has become surety, as authorized by oh. 196, Laws of 1893, is entitled to be credited with the amount paid by him to such company for that service, provided the sum be reasonable as limited by ch. 219, Laws of 1895.</p>

<p> Contract, time for payment: Parol evidence to vary: Settlement, proof of. </p> <p>1. Upon a written contract for the performance of services, which fixes no time for payment therefor, it is due on demand; and if there is nothing on the face of the contract to indicate that it does not embody the entire agreement between the parties, parol evidence is not admissible on the part of the defendant in an action on the contract to prove a contemporaneous agreement postponing payment.</p> <p>3. In an action for such services, an order given by the defendant to the plaintiff on a third person for the amount due, if not paid, is not admissible as evidence of a settlement.</p>

Croix county: E. B. Bundy, Circuit Judge. This action was brought by the plaintiff’s intestate to recover damages which he sustained by reason of defects in a highway of the defendant town. The original plaintiff has died since the action was tried. At the time of the accident the decedent was riding with one Joseph Allyn, in a buggy, drawn by a span of horses driven by Allyn. The time was evening, and it was dark.

<p>Appeal from an order of the circuit court for St. Oroix county: E. B. Bundy, Circuit Judge.</p> <p>It is alleged in the complaint by appropriate allegations that plaintiff, during all the times mentioned therein, was a duly-organized town, under the laws of this state; that on the 31st day of June, 1882, there existed a vacancy in the office of town treasurer of said town, caused by the death of the duly elected and qualified treasurer; that such vacancy was duly filled on that day, in the manner provided by stat-, ute, by the appointment of defendant as treasurer of said town, and his qualification for the office by giving the proper bond, which was duly approved and placed on file; that said bond was executed and sealed, and contained all the conditions provided by statute in such cases, including the condition that defendant should truly account for and pay over all the money, according to law, which should come into his hands as such treasurer; that at the end of his term of office he produced a statement óf his receipts and disbursements, showing a balance on hand of $591.60; that in truth and in fact the balance of moneys in his hands belonging to such town was $620.02; that by inadvertence and mistake of the town, caused by the conduct of defendant, his account was adjusted as claimed by him, by reason whereof .he retáin’ed in his hands the sum of $28.42. By reference to an exhibit referred to in the complaint, and attached thereto and made . a part thereof, such complaint shows by items the errors committed by the town treasurer, which resulted in his re-, taining in his hands the said sum of $28.42. The complaint further shows that prior to the commencement of this action, and on the 12th day of Rovember, 1895, the then town treasurer of the town, he having been previously authorized thereunto, duly demanded of the defendant payment of said sum of $28.42, and at the time of making such demand served upon the defendant an itemized statement, showing the particular items composing such sum of $28.42, which he had failed to account for and pay over as aforesaid, and called his particular attention to such items; that a sufficient time elapsed thereafter, before the commencement of this action, to enable the defendant to examine the accounts as plaintiff claimed the same to exist, and as shown by a statement served on the defendant at the time of making the aforesaid demand, and that defendant wholly neglected and refused to comply with such demand. It is further alleged that the commencement of this action was duly authorized by the town board of said town. The complaint further sets forth similar facts to constitute a cause of action for a balance on account of money alleged to have been retained by defendant for each of the six succeeding years, being from 1884 to 1889, inclusive. Judgment was demanded for the seven several sums, aggregating in all $522.21, with interest on each sum from the time it was alleged defendant Avrongfully failed to account for and pay over the same.</p> <p>Defendant demurred generally on séveral grounds, among which were that the complaint does not state facts sufficient to constitute a cause of action, and that it was not brought within the time limited by law; and also demurred specially to the first cause of action on the two grounds particularly mentioned. The demurrers were overruled, and defendant appealed.</p> <p>They argued that the complaint did not state a cause of action on the treasurer’s bond, but if so intended, the action was barred by statute. Sheldon v. Rockwell, 9 "Wis. 166, 181; Sable v. Maloney, 48 Wis. 321; Rogers v. Van Nortwiok, 87 Wis. 414; Story, Eq. Jur. § 1520; Wood, Lim-Rations, 117; Spalding v. Fa/rwell, 70 Me. 17; Hunt v. Ellison, 32 Ala. 173; Kerby v. Jacobs, 13 B. Mon. 435; Wilson v. Anthony, 19 Ark. 16. The complaint fails to show that the action was authorized by the town electors, as sec. 776, R. S., requires. State ex rel. Manitowoc v. Country Clerk of Ma/ni-iowoc Co. 59 Wis. 15; State ex rel. Baraboo v. Sauk Co. 70 id. 490; State ex rel. Spring Lake v. Pierce Co. 71 id. 322; Fox Lake v. Fox Lake, 62 id. 486, 489.</p>

<p>Appeal from a judgment of the circuit court for St. Croix county; E. B. Buhdy, Circuit Judge.</p> <p>The case involved rights of fishery in Willow river, and is sufficiently stated in the opinion.</p>

<p>Appeal from a judgment of the circuit court for Pepin county: E. B. Bundy, Circuit Judge.</p> <p>The case is sufficiently stated in the opinion.</p>

B. BuNdy, Circuit Judge. This is an action to foreclose a mortgage executed by the ■defendant Hewitt to the plaintiff, to secure the purchase money of the land. Rudolph Kleiner was made a defendant, as one claiming some interest in the premises, which was subsequent and subordinate to the plaintiff’s mortgage. Kleiner defended, and asserted that his mortgage was the prior and paramount lien; that he took his mortgage in good faith, and without notice of plaintiff’s mortgage.

Gf. SiebecKEe, Circuit Judge. Defendant signed a judgment note as surety for ber bus-band. Judgment was rendered thereon. Thereafter, on affidavits and a verified answer, she moved tbe court to set tbe judgment aside, and for leave to defend, which motion was granted. The action was thereafter tried by the court, a jury trial having been waived.

Appeals from orders of the circuit court for Dane county: B. Gr. SiebecKER, Circuit Judge.

<p>Appeal from an order of the circuit court for Dane county: R. Gr. Siebeckee, Circuit Judge.</p>

Bennett, Circuit Judge. This was a proceeding against the school board of the city of Beloit to obtain a peremptory mandamus commanding the defendants, as such board, to permit the relator’s three children to attend the public schools in said city, from which it was alleged they had been wrongfully and unlawfully expelled March 13, 1894, and had been excluded therefrom ever since, without any legal excuse or authority, solely on the ground that they had not been vaccinated…

EeeoR to review a judgment of the circuit court for Milwaukee county: D. H. JohksoN, Circuit Judge.

H. Johnsok, Circuit Judge. This is an action in equity^ brought by the city of Milwaukee against the county of Milwaukee and the county treasurer, for the cancellation of county, school, and state taxes levied upon certain lands in the town of Wauwatosa, hut occupied by the city for park purposes.

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

M. Webb, Circuit Judge. This .is a bill in equity to compel the defendants to release to the plaintiff all claims to the real estate described, and to quiet the plaintiff’s title to the same. The facts appearing of record are to the effect that on and prior to August 31,1885, the defendant Magdalena was the owner in fee simple and in possession of the lands described. She was then a widow, and old. and infirm.

G-. SieeecKee, Circuit Judge. This was an action on a promiss'ory note for about $250, to which defendants pleaded a counterclaim of ab.out $100. At the December term of the circuit court for 1895, held at Portage City, in Columbia county, Wisconsin, commencing on the 3d day of the month, the cause was on the calendar for trial. It was reached in its order on the 12th. Defendants, with their attorneys and witnesses, were in court ready for trial.

county: R. G-. SiebecKer, Circuit Judge. The case is fully stated in the opinion. They contended, among other things, that there was error in the rulings of the court, both in admitting and in excluding evidence, for which the judgment should be reversed.

<p>Appeal from a judgment of the circuit court for Dane county: R. G-. Siebeobee, Circuit Judge.</p> <p>The case is fully stated in the opinion.</p> <p>They claimed that the evidence clearly showed a highway, dedicated, accepted, and used, over ground where defendants’ fence now stands, citing Wye v. GlarJc, 55 Mich: 599; Rothman v. Worenberg, 21 Neb. 467; Bartlett v. Beardmore, 74 "Wis. 485; Lemon v. Hayden, 13 id. 159; Bushnell v. Scott, 21 id. 451.</p>

<p>Appeal from a judgment of the circuit court for Bane county: R. Gr. Siebeokeb, Circuit Judge.</p> <p>This is an action to remove a cloud upon the title to land. The plaintiff is a married woman, the wife of Thomas Davenport. The defendant had ■ a judgment, which was duly entered and docketed, against Thomas Davenport. The plaintiff owned a home with about thirteen acres of land. In August, 1895, a real-estate agent negotiated a trade between the plaintiff and one "William Keyes, whereby the plaintiff was to convey her home and land to Keyes, and to receive from him some money, a mortgage on the land which she conveyed, and a conveyance of two lots in one of ■the suburbs of the city of Madison. At the time when the ■conveyances were to be executed, the plaintiff’s husband,. Thomas Davenport, attended to represent his wife in the transaction. Through some misunderstanding of the agent,, the mortgage and the conveyance of the lots were made to run to Thomas Davenport as mortgagee and grantee, respectively, instead of running to the plaintiff. The conveyance of the plaintiff’s land to Keyes was delivered to Keyes,, and the mortgage and conveyance of the lots were left with the agent for the plaintiff. This was on Saturday, August 31, 1895. As soon as the plaintiff learned that the mortgage and conveyance were to her husband as mortgagee and grantee, she refused to accept them, and demanded others, which should be in her name. For some reason it was inconvenient to obtain the execution of new conveyances from Keyes and wife; so it was finally arranged that Thomas Davenport should assign the mortgage, and make a conveyance of the lots to the plaintiff. And so it was done. This was on Monday, September 2,1895. The defendant claimed that his judgment against Thomas Davenport became a lien upon the lots while the title was vested in Thomas Davenport, and sold the lots on execution. The action is brought to remove this cloud upon the title to the lots. The plaintiff had judgment, from which this appeal is taken.</p> <p>They contended that the evidence shows the delivery of the deed to the husband two days before he conveyed to his wife, and she by accepting a deed from him acknowledged and confirmed his title. Actual possession is necessary to enable a person to maintain an action to remove a cloud on title. There is no evidence that the plaintiff is in possession. Stridde v. Somoni, 21 Wis. 173; Grimmer v. Sumner, id. 179;. Wals v. Grosvenor, 31 id. 681; Lee 4. Simpson, 29 id. 333; Shaffer v. Whelpley, 37 id. 334; Pier v. Fond du Lao, 38 id. 470; Gh'ignon v. Blacls,76 id. 674; Frost v. Spitley, 121 U. S. 552; Sepulveda v. Sepulveda, 39 Cal. 13; Eaton v. Giles, 5 Kan. 24.</p>

<p> Negligence causing death: Instructions: Court and jury. </p> <p>1. Where, in an action against a railroad company for causing the death of a switchman fay its negligence in not keeping a guard rail properly blocked, there was evidence that the defendant was guilty of negligence in that respect, and that in consequence thereof the switchman caught his foot between the guard rail and , the track rail, which caused him to fall under the cars, and there was no evidence on which it could be held, as a matter of law, that the deceased assumed the risk or was guilty of contributory negligence, held, that the court properly refused to take the case from the jury.</p> <p>2. It was not negligence per se for the deceased to go between the cars while in slow motion, for the purpose of uncoupling them, or to use a stone while walking along to loosen t'he coupling pin, where that had been a common custom in the switchyard, approved by the yard master, even though he might have signaled the engineer to stop the car and then have taken the pin out without danger; nor did he, by choosing the more dangerous mode, assume the risk of injury resulting, not from that cause, but from the negligence of the defendant in respect to the guard rail.</p> <p>8. In such action, there being evidence which, if believed, might have sustained a finding that the injuries of the deceased occurred in consequence of his stumbling against the arm of the guard rail and then slipping, it was error for the court to refuse to charge the jury that if the injuries were received in that way the plaintiff could not recover, unless the same point was clearly given in the general charge.</p>

<p>Appeal from a judgment of the circuit court for Shawano, county: JohN G-oodlaNd, Circuit Judge.</p> <p>This is an action to reform a mortgage by correcting a description therein in a material particular, and to foreclose-the same and a second mortgage as 'well. Both mortgages were given by defendant Augusta Hahn to Alfred T. Hammond, and were assigned by him to the plaintiff before the. commencement of the action. Defendant Matt Wagner answered, among other things, that Augusta Hahn, after the-giving of the mortgages, sold the property to defendant Peter Ketter, who procured plaintiff to. furnish the money to-take up the two mortgages, with the understanding that she-should charge but seven per cent, interest upon the note secured by the mortgages until they were paid, instead of eight per cent., as provided in such notes; that thereafter defendant Peter Ketter sold the property to defendant Matt Wagner, under an agreement whereby the amount due upon, the mortgages was to be paid out of the purchase money j that, for the purpose of determining what amount should be-reserved for that purpose, defendant Ketter procured a statement from the plaintiff, in which interest was figured at seven per cent, per annum, and the total amount claimed being $413.43; that such statement was delivered to said Wagner, and that he relied upon the same, and retained that sum only, out of the purchase money, to apply upon such mortgages; that his vendee, Ketter, is insolvent; that, before the commencement of the action, said Wagner tendered the full amount due to the plaintiff, upon condition that she-should deliver to him proper assignments of the mortgages and satisfactions thereof; that she refused to take less than eight per cent, interest, notwithstanding she had theretofore furnished the statement upon which defendant relied, computing the interest at seven per cent. Some other allegations were included in the answer, going to show that plaintiff was not equitably entitled to costs.</p> <p>The trial court found the facts as alleged in the complaint,, except that on the 6th day of May, 1895, the amount due was as claimed by defendant Matt Wagner.</p> <p>The court further found facts to the effect that the reason why the mortgages were not satisfied before the commencement of the action was that plaintiff refused to pay the expenses of recording the assignments of the mortgages, and! to deliver the satisfactions thereof, unless defendants would pay seventy-five cents, expenses for such recording and satisfactions, which they refused to do; that defendant Matt Wagner offered to pay the amount due on the mortgages, but did not actually tender the same; that the difference between the parties which led to the foreclosure was that Wagner, in good faith believing that it was his right so to do, insisted on plaintiff’s recording the assignments, at her own expense,, and furnishing satisfactions of the mortgages; and that,, when the action was brought, plaintiff insisted upon a greater-rate of interest than -she was entitled to.</p> <p>Erom such facts, the court concluded, as a matter of law, that plaintiff was entitled to a judgment foreclosing the mortgages described in the complaint, and for costs and disbursements of the action, unless defendants Matt Wagner or Fred Wagner paid into court, within ten days after notice of the filing of the findings, $400 principal and $44.36 interest, with interest on $400 from the 27th day of April, 1896, at the rate of eight per cent, per annum up to the time of such payment; and, if such payment were made within the time limited therefor, then that the action should be dismissed, without cost to either party; but, in case such payment were not made within such time, then that plaintiff might apply for judgment foreclosing the mortgages according to the prayer of the complaint. The money was paid into court in accordance with such conclusion, and thereupon judgment was entered dismissing the complaint, without costs, and plaintiff appealed.</p>

<p> Special agency: Delegation of power. </p> <p>A committee appointed by the directors of a bank from their number, and authorized by them to purchase certain lots for the bank on such terms as should seem to them most advantageous to it at a price not exceeding a sum named, is a special agent and must act within the special authority given; and it has no power to bind the bank to pay a larger sum for those lots than the price fixed by the board, or to give in addition another parcel of land; much less have the president and cashier of the bank, either as members of the committee or by virtue of their offices, power to delegate such authority and discretion to a third person and bind the bank to pay him a commission for his services.</p>

<p> Master and servant: Negligence: Question for jm-y: Erroneous instructions. </p> <p>1. In an action by an employee for an injury alleged to have been caused by the negligence of the employer in not covering or guarding his machinery, the question whether subd. 2, sec. 1636/, S. & B. Ann. Stats., required it to be covered or guarded depends upon whether it was “ so located as to be dangerous to employees when engaged in their ordinary duties,” and that is a question of fact for the jury.</p> <p>2. When instructions are requested which are correct in law and applicable to the case, the court should give them without modification, and to refuse to do so is error, unless they are substantially given in the general charge.</p> <p>3. Thus, after giving an instruction in an action for such an injury, substantially as requested, that, “ if the jury find that the defendant furnished to the plaintiff a place to work which was as safe and free from danger as other persons of ordinary care in like business and under like circumstances ordinarily furnish, they must find for the defendant,” to modify such instruction by adding that “ they should not so find if the places provided by such other employers of labor for their workmen or servants are not reasonably safe,” has the effect to pervert the force and destroy the meaning of the instruction and leave the jury without a standard by which to test the defendant’s liability.</p> <p>4. The test of negligence in such a case is the presence or absence of that degree of care which ordinarily prudent persons are accustomed to observe about the same or similar affairs in similar circumstances.</p> <p>5. In such an action, to instruct the jury in a general way that a preponderance of evidence is necessary to justify a verdict for the plaintiff, and then to add, “You cannot find for the plaintiff unless his evidence outweighs that of the defendant. ... If the plaintiff has proved his case by a fair preponderance of evidence,— if plaintiff’s evidence weighs enough more than that of defendant to turn the scale on the plaintiff’s side, even if it be but little, if that little be perceptible,— your verdict will then be for the plaintiff,” is calculated to puzzle and mislead the jury.</p> <p>6. To instruct the jury in such a case that, “If you find for the plaintiff you will bring in such damages as will make him whole in dollars, as far as possible,” is misleading, in that it suggests greater damages than are given by the just rule, i. e. “such sum as will fairly compensate for the damages suffered and is reasonable in amount.”</p>

<p>Appeal from an order of the superior court of Douglas county: Charles Smith, Judge.</p> <p>The action is for malpractice, the complaint being as follows : “ The complaint of the above-named plaintiff respectfully shows to the court: That in the month of May, A. D. 1894, the plaintiff was, at the city of Duluth, in the state of Minnesota, kicked on the right leg by a vicious horse, and the same thereby broken and greatly injured. That at that time, the defendant being a surgeon, the plaintiff called and informed him of the manner of receiving such injury, and employed him, as such surgeon, to .examine such broken leg and ascertain the extent of the injury thereby-caused, and to set the same, if broken, and to treat and heal the same, for whatever the injury was to it; and for that purpose the said defendant undertook, as a surgeon, to examine said injured leg, to ascertain whether the same was broken, and also undertook to treat and heal said injured leg for whatever the injury was or may have been to it. That pursuant to said undertaking said defendant examined the said injured leg of the plaintiff in a negligent and unskilful manner, and failed to ascertain that the same was broken, or the extent of the injury to the same, and that he treated and tried to heal the same as though it ivas not broken, greatly to the plaintiff’s injury. That, by reason of the defendant’s negligence and unskilful examination and treatment of plaintiff’s said broken leg, the plaintiff was made sick and kept from •attending to his business ever since the date aforesaid, suffered much pain and annoyance, and was put to great expense, and has been and still is disabled from attending to his labor and business, to the damage of the plaintiff nineteen hundred and fifty dollars.”</p> <p>A general demurrer to the complaint was overruled, and the defendant appealed.</p> <p>The case was submitted by both parties on briefs.</p> <p>contended that the complaint was insufficient-because it failed to state that the employment of defendant was for hire or reward. Bliss, Code PL §§ 268, 279, and notes Jones v. Burtis, 88 Wis. 478. Also because it fails to show that the defendant was qualified to practice under secs. 1436, 1437a, S. & B. Ann. Stats., so as to be entitled to compensation, and a promise cannot be implied. The injury to plaintiff is not alleged to result from the defendant’s failure to exercise ordinary professional care, skill, knowledge, or judgment.</p> <p>contended that the fact of defendant’s employment raises an implied promise to compensate, and a duty on his part to exercise ordinary skill. PeoJev. Hutchinson, 88 Iowa, 320; Morrill v. Tegcvr-den, 19 Neb. 524.</p>

<p>Appeal from a judgment of the superior court of Douglas •county: Chaeles Smith, Judge.</p> <p>This was an action to recover damages for an alleged false imprisonment of the plaintiff by the defendant Lutton, the ■city marshal of the city of Superior, and his five codefend-ants, policemen of said city. The plaintiff charges the defendants with having assaulted and imprisoned the plaintiff, „ and deprived her of her liberty for the space of one day, May 18, 1895, contrary to her will, etc. The defendants .•answered jointly, in substance, though in a .crude and imperfect manner, that they were at the time such officers, respectively, as stated, and that they arrested the plaintiff without warrant, pursuant to section 268 of the ordinances ■of the city of Superior, by which it was made the duty of the marshal, superintendent of police, and all police officers and watchmen to summarily arrest and take before the police justice of the city all persons in the act of violating any ■of the provisions of the general laws of-the city, or any ordinances passed in accordance therewith, and to make complaint before said justice against such offender, and which allowed a detention of the person arrested in the watch-house or jail for twenty-four hours, Sunday excepted, before taking such person before such justice; that the plaintiff was arrested on the charge of having, on said 15th day of May, 1895, at said city, violated section 283 of the ordinances of said city, “ in that she did then and there, contrary to said ordinance, be an inmate of, visit, resort to, frequent, and be found in, a disorderly house, house of ill fame, and place resorted to for the purpose of prostitution, assignation, and fornication,” with which offense she was in the forenoon of the next day charged, on complaint of said defendant button. It was alleged that the defendants, in so arresting the plaintiff, acted in good faith, and without malice, and had probable cause to believe the plaintiff guilty; and, upon information and belief, they charged that she was guilty of said offense, and that she was arrested in and taken from a disorderly house in the said city of Superior.</p> <p>At the trial, the plaintiff produced evidence tending to support her complaint, and that upon the trial in municipal court, on the day after the arrest, she was acquitted of the charge against her, and tending to show that she was not guilty of the said charge. It appeared that the plaintiff and her sister were arrested about 10 o’clock in the evening, and were released upon bail, after a detention of about two hours.</p> <p>On the part of the defendants, evidence was given by the defendant button that he was chief of police, and, on the evening in question, was going past the plaintiff’s house, and some police officers were standing in front of it; that he staid there two or three minutes, and heard very loud talking in the house,— profane and indecent language,— and learned that the officers had been called there by some of the neighbors; that, after listening two or three minutes, he told the officers to pull the house for a disorderly house. It appeared from what he heard that they either had a fight there,, or there had been one. There were two male and two female voices. It was a female voice that was doing the principal talking. The language was loud, profane, and indecent. That it was profane and indecent was clear from the evidence of the witness. Defendants’ counsel asked the witness if he knew the reputation of this house at that time, as to its being a disorderly house, bawdy house, or house of ill fame. Upon objection made, the court ruled that the defendants might show that the plaintiffs house, at the time of the arrest, was a house of prostitution, but not that it was a disorderly house, in the sense that there were disorderly noises, loud, boisterous, profane, and obscene language frequently emanating therefrom, and fighting or quarreling and conduct of that kind carried on therein; and evidence offered by the defendants of that character, to maintain their defense, was then and during the trial excluded, although admitted to some extent as bearing on the question of the character of the house. Evidence was given tending to show that the house had the reputation, at the time, of being a house of prostitution, and that the plaintiff had the reputation of being a prostitute, and that her sister, living there, had the same reputation; and the evidence tended to show that, shortly prior to the arrest, complaints had been made to the police as to the character of the house and the trouble going on there, and that liquor was carried there through the day and night by strange men. Considerable evidence was given tending to show that the house was frequented by strange men at late hours.</p> <p>In rebuttal, the plaintiff produced evidence tending to show that the house was not a house of prostitution; that the disturbances there were caused by plaintiff’s brother, when intoxicated; and that no woman living there used obscene or indecent language.</p> <p>The court instructed the jury, among other things, that “ the word ‘ disorderly,’ in the ordinance, must not be construed to mean a house in which quarrels, disturbances, and that class of things occur, but must be construed in the more restricted sense, as meaning a house used for the purpose of prostitution, gambling,” etc.; that “the burden of proof was upon the defendants to show, by a preponderance of ■evidence, that the house where the plaintiff was arrested was a place resorted to for prostitution; that the reputation of the house is not conclusive as to its being a house of prostitution, but is merely evidence, and the fact- that it was •such house must be proved by a preponderance of the evidence to your satisfaction, before this arrest can be justified. Was the house where the arrest was made such a house as the ordinance covers? If yes, did plaintiff reasonably seem to the defendants to be there for immoral purposes ? If you answer both of these questions in the affirmative, your verdict will be for the defendants; otherwise, it will be for the plaintiff.”</p> <p>There was a verdict for plaintiff for $500. After verdict, the defendants filed in court a release and discharge, executed and acknowledged by the plaintiff, whereby, in consideration of $40, she released and. discharged them from all liability by reason of the verdict rendered in the action and any judgment that might be entered thereon, and costs, and from all liability and obligation for damages sustained by her by reason of said false imprisonment, and any cause ■of action she might have against the defendants. After judgment, upon motion founded upon and opposed by affidavits, the court made an order vacating and setting aside said release, and reinstating the verdict and judgment, and ■directing the $40, less $10, costs of motion, to be returned to the defendants. The defendants appealed from said judgment, and from said order, as well as from an order denying a motion for a new trial, founded on the minutes of the court.</p> <p>They contended that the defendants had no right to arrest the plaintiff, there being no evidence that she was guilty of any noise or disturbance. Griffin v. Coleman, 4 Hurl. & N. 265; Bowditoh ■*o. Balohin, 5 Exch. 380; People v. Haley, 48 Mich. 495; People v. Baits, 53 id. 495. A police officer bad no right to arrest without a warrant except for a felony or breach of the peace committed in his presence. Brennan v. People, 10 Mich. 169; Wahl v. Walton, 30 Minn. 506; People ex rel. Kingsley v. Pratt, 22 Hun, 300; Shanley v. Wells, 71 Ill. 78.</p>

The defendant Dobie was indebted to the Lcmd argued, inter alia, that the transaction lacked the essential characteristics of an assignment of the rents, and left them still under the control of the mortgagor, so that if lost the loss would have been his. Christmas v. Russell, 14 Wall. 69; Christmas’s Admlr v. Griswold, 8 Ohio St. 558; MoFwen v. Brewster, 17 Hun, 223; Papineau v. Kaumlteag S. C. Co. 126 Mass. 372; Rodicla v. Gandell, 1 De G-ex, M. & G. 763, 778; Putnam Sav.

<p> Appeal: Review of referee's rulings: Insolvent corporation, action against. </p> <p>1. In order to bring up for review in the supreme court exceptions to the rulings of a referee on the admission of evidence, they must be renewed in the circuit court upon the motion to confirm or set aside the referee’s report, and the exceptions to the rulings of that court thereon be preserved in the bill of exceptions.</p> <p>2. The findings of fact of a referee will not be disturbed on appeal, unless against the clear preponderance of evidence.</p> <p>•3.- To sustain an action by a creditor against a corporation, its directors, and some of its stockholders, to impeach a mortgage given by such directors, as being fraudulently given for the purpose of securing to themselves preferences over other creditors, the -plaintiff must show that the corporation was insolvent at the time it was given, or that such directors knew that suspension was impending.</p>

<p> Replevin: Antenuptial gift: Instructions: Waiver. </p> <p>1. To permit a plaintiff in replevin to waive and withdraw his claim for damages for the detention of the property replevied, after the case has been submitted to the jury, does not effect any substantial right of the defendant, and is not reversible error.</p> <p>2. A verdict for the plaintiff in replevin for a piano, claimed by her as an antenuptial gift from her husband, is held to be sustained by evidence that some two weeks before their marriage, she being at his office, he told her that he had bought her a present and asked her to guess what it was, and just then a man came with the piano and placed it in the room, and from that time they had both treated it as hers.</p> <p>3. In this case, it was not error for the court to charge the jury to the effect that the transaction on which the plaintiff based her claim to the piano was not strictly one between husband and wife, yet the same principle prevails as if they had been; such instruction being favorable to the appellant.</p> <p>4. An instruction to the effect that the jury must take the testimony as it was,— credible and false, — and if they found the burden of proof in favor of the plaintiff, they must find for her,— the words burden of proof being evidently used through inadvertence instead of preponderance of evidence, — is held not calculated to have misled the jury to the prejudice of the appellant.</p> <p>5. An instruction that possession “ for certain purposes makes a prima facie ownership,” and that the jury should consider that fact with the other evidence and give it such force as it ought to have in reaching a conclusion, is held to have been favorable to the appellant.</p>

<p>Appeal from a judgment of the superior court of Douglas county: Chaeles Smith, Judge.</p> <p>The plaintiffs’ intestate, a boy eight and one-half years of agfe, was run over and killed by a freight train operated by the defendant at the village of Hawthorne, November 11, 1892; and this action is brought by the administrators of his estate, under the statute, to recover damages therefor. There was little dispute upon the trial as to the facts.</p> <p>The village in question is a small hamlet on the line of defendant’s road, containing at the time of the accident probably between 100 and 200 inhabitants; the houses being mostly built along the railway tracks, which at this-point run nearly north and south. There were three tracks, running through the entire village,— the main track, the side track on which cars were stored, which was east of the-main track, and the passing track, which was used when trains passed each other, on the west side of, and about forty feet distant from, the main track. The two switch tracks were about 1,000 feet in length. . At about the middle of the switch tracks the people of the village were accustomed to cross the three tracks from one side of the village to the other both on foot and with teams, and had been accustomed to so cross for several years before the accident. The-railroad company had constructed plank crossings at this point over the main track and the east side track, but not over the passing track. A highway came up to this crossing on the east side, and another on the west side, but no legal highway had ever been laid across the railroad tracks. About 150 feet north of this crossing stood the depot, which was between the main and passing tracks, and the most of the buildings in the village were near the depot, on the west side of, and close to, the passing track. The people of. the village used the space between the tracks indiscriminately for crossing the tracks, and children played between the main track and the passing track. The school house-was upon the west side of the tracks, and about 200 feet south of the crossing. The school children were about thirty in number, about half of them coming from the east side of the village. On the day of the accident the plaintiffs’ intestate had attended the morning session of school with two other boys. They got out of school a little before 11 o’clock a. m., and came down to the track, and found a freight train of twenty-eight cars standing on the passing track. They went south to the end of the train, and crossed the track to the east side, where one of the boys lived, and then returned north to the crossing, intending to go to the hotel on the. west side of the track, where the intestate was living with his parents. The train was still standing on the passing track, and they stopped and played a while in the forty-foot space between the passing track and the main track. "While the boys were here the intestate’s father climbed through the standing freight train, and went eastward towards the mill pond to scale some logs. He told the intestate to be careful for the cars. After playing for a while the boys started to climb through the opening between two cars'which stood over the crossing. Just as they had got well on one end of one of the cars, upon a’ small platform of what is called a gondola car, the train started with two or three jerks. The boy Roscoe was in the middle, between his comrades. The two companions succeeded in jumping off, one on either side, but the intestate was thrown down between the cars and run over and killed.</p> <p>There is a dispute in the evidence as to whether any signals were given before the train started. No trainman saw the boys or knew of the accident at the time. The freight train had stood on the crossing nearly or quite fifty minutes, waiting for the passenger train from the north. Upon this state of the evidence a verdict for the defendant was directed and rendered, and from judgment thereon the plaintiffs appealed.</p> <p>They argued, among other things, that the railroad company, having treated the crossing as a highway and invited people to use it as such, was bound to exercise the same care there as if it was a strictly legal highway. Ooulter v. G. W. B. Go. 5 N. Dak. 568; Chicago, B. c& Q. B. Go. v. Metcalf, 44 Neb. 848; IÁUstrom v. JV. P. B. Go. 20 L. E. A. 587; Wébb v. P. & K. B. Go. 57 Me. 117; Kelly v. S. M. B. Go. 28 Minn. 98; Stewart v. Pa. B. Go. 14 Am. & Eng. E. Cas. 679.</p>

<p>Appeal from a judgment of the superior court of Douglas county: Chaelbs Smith, Judge.</p> <p>This was an action against the defendant for the conversion of eighteen double cords of cedar paving posts, the property of the plaintiff, tried in the superior court of Douglas county. The complaint alleges that the defendant was, at the several times mentioned, a foreign corporation, organized and existing under the general laws of Minnesota, doing business at the city of Superior, in Douglas county, "Wisconsin, and as such conducting and operating a dock in .said city, and that, with the knowledge and consent of the defendant, the plaintiff placed eighteen double cords of cedar paving posts, valued at $18 per cord, on its dock; and alleged the subsequent conversion of the'same by the defendant.</p> <p>The answer was a general denial, coupled with a special denial that the defendant was a foreign corporation, and alleging that it is a "Wisconsin corporation, doing business •as such under its said corporate name at Superior, Wisconsin, but denied that it was such at any time prior to March 27, 1894. The defendant set up a counterclaim to the effect that when the cedar posts were placed on the dock, the dock was conducted and operated by the Billings Hardware Company, which continued to conduct and operate it until February 1,1894, when said company conveyed and assigned the said dock, etc., to the said Minnesota corporation, and to W\ P. Cockey the accounts and lien against the plaintiff for dockage and storage of said cedar posts, upon which there was due $52; that in April, 1894, Cockey assigned said account to the defendant, and at about the same time the said Warehouse c& Builders’ Supply Qompamy conveyed said dock property to the defendant, and it still owns the same. The defendant set up a further counterclaim of $248 for dockage at said dock, against the plaintiff, of 500 eords of cedar in 1892, when said dock was operated part of the year by the said Minnesota corporation and part by the Billings Hardware Company; that said account had been assigned to the defendant.</p> <p>The defendant was named in the summons as the “ Warehouse & Builders’ Supply Company,” and the service appears to have been made July 3,1894, on the said defendant, by delivering a copy and reading the summons to W". C. Moss, its general manager.</p> <p>At the trial, the plaintiff gave evidence tending to show that October 4, 1892, he put on the dock of the Warehouse & Builders' Supply Oompcmy twenty-five cords of cedar, and thirty or thirty-five cords for Kiever & Burke; the twenty-five cords were chopped cedar, and piled by itself in front of the dock, not marked; that it was removed from the dock five or six days thereafter, without his knowledge or consent. It was admitted that Mr. Oockey was president, and Mr. Moss was secretary, of the defendant. The witness testified that he “ spoke to Mr. Oockey about the cedar, and asked him where he got his authority to remove it into his own yard. Told him it was mine, and that there was nothing due on it except dockage. He said everybody had been landing cedar on the dock, and that he took it for dockage. He said that any time I wanted the cedar it would be put where I could get it. I could have it by paying the dockage. That the dockage would be $3 a car load.” And that he (witness) told him that that would be all right. The spring before the action was commenced he asked Mr. Moss about the cedar. He said he was ready to return it if witness would pay the dockage of $52. He told Moss he would not pay that. He would pay what was agreed on and no more. That he told him he wanted the cedar or the price of it. He said he would do nothing until he got $52. He said he had the cedar there, and would return it and all that it would be short if the eighteen cords were not there. That witness told him he would take it back if it was his own. That they went and looked at it, and there was only a'few sticks here and there that belonged to him. He said he took eighteen cords of cedar, and was willing to return the same amount of cedar. That he told him he wanted his own. The cedar that was removed and piled back there, and which he had delivered on the dock, was not the cedar that Mr. Moss pointed out to him as being his. The plaintiff’s evidence was corroborated by that of his son and of a Mr. Thompson. Evidence was given tending to show that the cedar had been disposed of to other parties. Mr. Oockey testified that be was president of the Warehouse & Builders’ Supply Company organized, etc., under the laws of'Minnesota, and also of the Warehouse & Builders’ Supply Company organized, etc., under the laws of Wisconsin, when the action was commenced. They were not two corporations under the same name.</p> <p>The evidence on the part of the defendant tended to show that there had been no conversion of the plaintiff’s cedar, and that the cedar remaining near the dock, disowned by plaintiff, was the cedar he had landed on the dock in October, 1892; and it appeared that the Warehouse & Build-eri Supply Company, June 6,1894, called on the plaintiff to pay for dockage and storage $52 on cedar unloaded on the company’s property, and to remove the same. The removal of the eighteen cords from the dock, and piling it in the yard, was November 16,1892. Evidence was given tending to support the first counterclaim. As to the second counterclaim, it appeared substantially that all the dockage, etc., therein claimed was upon cedar landed by the plaintiff on the dock for Kiever & Burke, under a contract by which they were to pay the dockage and storage on it; and the defendant had charged the same to them, and had never made any charge against the plaintiff, or any claim therefor against him, until after this action had been commenced; that said cedar was to become and be the property of Kiever & Burke as soon as placed on the dock. The defendant put in evidence a general assignment of the dock bills and accounts, dated January 31, 1894, from the Billings Hardware Company to W. P. Oockey, and an assignment of the same to the Warehouse ds Builders’ Supply Company, dated April 27, 1894; also articles of incorporation of the Warehouse & Builders’ Supply Company, dated March 26th, and filed in the register’s office of Douglas county, March 27, 1894. The corporation was created for “ the transaction of a whole.-sa-le and retail mercantile business,” etc.</p> <p>The defendant called as a witness one Schwallenbach, who testified that he was a contractor, and had laid cedar pavement, and was familiar with the price of cedar in the years 1892, 1893, and 1894; and asked him what paving cedar was worth in the city of Superior in 1898. Upon objection, the inquiry was excluded. The same question was asked as to 1894, with the same result, the objection being that the question should have been as to its market value. The inquiry as to its market value was put in various ways, with the result that the witness stated that there was no demand there for home use, and it had no market value there for paving; that there was then no demand for cedar of any kind; that he did not know if there was any demand for ■cedar outside of Superior; he had not heard of any. He said it could be used for firewood, but this was stricken out. He testified that there was no paving being done, and no ■one had any occasion for paving cedar, and he did not know what the market value was. He was asked what paving cedar was worth there in the spring of 1894, for any purpose, but the court held he was not competent to testify on the subject.</p> <p>The defendant asked the court to direct a verdict in its favor, but the court refused the request. The defendant requested the court to give various instructions to the number of fourteen, but, as all of them not lhanifestly improper ■or irrelevant were embraced in the general charge, it is not material to state them. The case was submitted to the jury to find a general verdict, and to answer three questions. The jury found for the plaintiff in the sum of $166.05. The questions were answered, in substance, that they allowed $18 for dockage and storage of the cedar in question, and nothing for the dockage of any other cedar, and $184.05 for con-' version of the cedar in issue. The plaintiff had judgment on the verdict against the defendant, the Warehouse db Builders' /Supply Qompcmy (a corporation duly organized and existing under the laws of Minnesota), from which the defendant appealed.</p>

<p> Rescission of contract: Conversion. </p> <p>A debtor who, to secure his sureties in a bond to his creditor, has-given them a bill of sale of the property bought from such creditor, they agreeing to take proper care of the property, dispose of it to the best advantage, and collect his accounts, and, after paying expenses, pay the balance to the creditor until he is fully paid, and return the remainder, if any, to the debtor, cannot, after such sureties have paid overa part of the proceeds of the property to the creditor, rescind the contract and revest the title of the property in himself by demanding a return thereof, because of the refusal of such sureties to pay over the balance to the creditor; nor can he, after making such demand, maintain an action against them for the conversion of the property.</p>

<p>Appeal from a judgment of the circuit, court for Douglas county: A. J. YiNje, Circuit Judge.</p> <p>The relator applied to the city council of the city of Superior in 1895 for a license for the ensuing license year for the sale of intoxicating liquors in said city. Such proceedings were thereafter duly had that such application was granted, and thereupon the applicant paid to the city treasurer of said city the sum of $200 as license money, upon the theory that such sum was the required amount to be paid in such cases. If such sum was sufficient, the applicant complied with all the conditions precedent to the issuance of his license. After such compliance, such applicant demanded of the proper officers of the city the issuance of his license, which was refused upon the ground that the sum required therefor was $500, as regulated by the charter provisions of the city covering the subject, instead of $200, as provided by the general law of the state. This action was brought to compel such officers to issue the license, and in that way to test the question of whether the charter provision of the city of Superior or the general law governs. Judgment was rendered in defendants’ favor, and plaintiff appealed.</p> <p>They argued, inter alia, that the effect of the constitutional amendment of 1892 was to prohibit all special legislation as to cities, etc., and require general laws to be enacted, and to be uniform throughout the state. Chapter 286 of the Laws of 1893 is a general law, and by its terms it applies to all cities. It is the only law now in force on the subject of liquor licenses, and it can have no validity if it does not apply to the city of Superior as well as to other cities. State v. Oamden, 50 N. J. Law, 87; State v. Jersey Oity, 54 id. 49; Haynes v. Oape May, 52 id. 180; Johnson v. Milxoaukee, 88 Wis. 383, 387; Boyd v. Milwaukee, 92 id. 456; Palms v. Shawano Oo. 61 id. 211. Chapter 286 of the Laws of 1893 repealed the law previously in force, and whatever provisions thereof were subsequently in force were so by virtue of their reenactment. Goocbio v. Oshicosh, 31 Wis. 121; State v. Inger-soll, 17 "Wis. 631. A general law repeals an earlier law, or special provisions of an earlier law, with which it is inconsistent. 23 Am. & Eng. Ency. of Law, 426, 484, 485.</p>

<p> Master and servant: Fish assumed. </p> <p>A laborer, engaged in shoveling gravel from a gravel pit, who, having knowledge of the liability of the gravel on the face of the pit to fall down as excavation proceeded at the bottom, and of the fact that blasting was being resorted to in order to break off th$ frozen surface, continues to work in the pit, must be held to have assumed the risk of injury from the falling of the bank at the place where he was working, as incident to his employment, and he cannot recover from his employer for an injury caused thereby.</p>

<p>Appeal from a judgment of tbe circuit court for Douglas county: A. J. Vlnje, Circuit Judge.</p> <p>One Knute Anderson obtained a judgment against M. C. Burke and John Burke. Tbe action was for personal injuries. Tbe Fidelity & Casualty Company was an insurer of tbe Burkes against sucb claims, and was defending tbe action. It procured Dobie and Tennis to become sureties on •the appeal, and gave them its own bond in the sum of $7,-000 to indemnify them, conditioned to “ answer for all damages, interest, and costs, if any, that shall be adjudged” against the defendant, and “ to save said Tennis and Dobie harmless from all costs and damages on account of their obligation as sureties.” Judgment went against the defendant on the appeal, and Tennis and Dobie became liable on their undertaking, No part of the judgment has been paid. The plaintiff brings this action to compel the defendant, the Fidelity ■(& Casualty Company, to pay the judgment, and so exonerate the plaintiff from liability. The plaintiff had judgment upon the pleadings, according to the demand of his complaint, and the defendant appeals.</p> <p>To the point that in order to recover on a contract to indemnify against liability, the plaintiff must show not only liability but loss, counsel for the appellant cited Ewing v. Deilly, 34 Mo. 113; Maloney v. Nelson, 144 N. Y. 182; Ohurohill v. Hunt, 3 Denio, 321; Campbell v. Rotering, 42 Minn. 115; Lathrop v. Atwood, 21 Conn. 117, 123.</p>

<p>Aoppeaus from judgments of the circuit court for Winnebago county: G-eo. W. BubNelr, Circuit Judge.</p> <p>The action is on two policies of fire insurance — one each — issued by the two defendant corporations upon the plaintiff’s property at Phillips, Wisconsin. The two insurance companies were joined in the action, as defendants, under ch. 235, Laws of 1893. The plaintiff had large mills, factories, and other buildings, and large quantities of lumber, on which it carried a large amount of insurance. One E. H. Winchester was for several years carrying on a large insurance business at Phillips. He was the local agent for a large number of insurance companies. He was not the agent of the defendant companies. He had been employed largely by the plaintiff to procure insurance on its property. In order to procure the amount of insurance desired by the plaintiff, Winchester applied to Messrs. Sunderland & Ostrander, agents for the defendant companies at Superior, Wisconsin, and procured from them the policies on which this action is based. The action of their agents in issuing the policies was unsatisfactory to the home offices, and they were ordered to cancel the policies. June 15,1894, Winchester went to the plaintiff’s office, and, in'the absence of plaintiff’s officers, procured the policies from the plaintiff’s bookkeeper, and returned them to Sunderland & Ostrander. He says that he told the bookkeeper that the policies were wanted for the purpose of cancellation. ' But this the bookkeeper denies. By the policies, there was reserved the right to cancel them on five days’ notice. Before the expiration of five days, and on June 19, 1894, a fire occurred which destroyed a part of the property mentioned in the policies. At the time of the fire no premiums upon these policies had been paid. The plaintiff had an arrangement with Winchester whereby time was given for the payment of premiums on all its insurance procured from him. Directly after this fire, plaintiff deposited the amount of the premiums on these policies with Winchester, who forwarded it to Sunder-land & Ostrander, who returned it to Winchester.</p> <p>The principal defense to the action was that the policies had been surrendered and canceled, and were not in force at the time of the loss. At the opening of the trial the defendants moved for a nonsuit on the ground that the complaint did not state a cause of action, and that two causes of action had been improperly joined, and asking for separate trials, all of which was denied. The court proceeded to try both causes of action by one jury, took a special verdict, and rendered a separate judgment against either defendant. At the close of the plaintiff’s testimony the defendants again moved a nonsuit, on the ground that the plaintiff had failed to prove the payment of the premiums. This motion was denied, The defendants asked for the submission of several questions, proposed by them, in the special verdict. The court did not submit these proposed questions, but submitted others instead. The special verdict was as follows: “ (1) Was E. H. Winchester in June, 1894, the agent •of the plaintiff to receive notice of cancellation of insurance policies held by the plaintiff? Answer. No. (2) Was E. H. Winchester in June, 1894, the agent of the plaintiff .to surrender for cancellation policies of the plaintiff, and waive the right of the plaintiff that the policies should remain in force for five days after the notice of the cancellation? Answer. No. (3) Did the plaintiff on the 16th day of June, 1894, voluntarily surrender the policy numbered 786 issued to it by the Home Insurcmee Company of Hew Yorh, for cancellation, and waive its right to have said policy remain in force five days after notice of cancellation ? Answer. No. (4) If the court should be of the opinion that the plaintiff is entitled to recover, at what sum do you assess his damages ? Answered by direction of the court, as to the Home. Insurcmee Company, $1,187.” The verdict in each ■case was the same, except as to the amount of recovery. A several judgment was rendered against eácb defendant, from which they severally appeal.</p> <p>They argued, inter alia, that the defendants were joined as such in violation of their constitutional rights, and that ch. 235, Laws of 1893, was unconstitutional, in that it compelled trials together of several issúes, even though the defenses were so unlike that justice required them to be tried separately. Norval v. Rice, 2 Wis. 22; May v. M. <& M. R. Go. 3 id. 219; Haskins v. Wilson, 5 id. 106; Gaston v. Babcock, 6 id. 503; Stillwell v. Kellogg, 11 id. 461; Mead v. Walker, 17 id. 189; Connecticut Mut. L. Ins. Co. v. Cross, 18 id. 109; Dane Co. v. Dunning, 20 id. 210; Crocker v. State, 60 id. 553; Jackson v. State, 81 id. 131; Klein v. Valerius, 87 id. 54; Von Baumbach v. Bade, 9 id. 559; Plumer v. Marathon Co. 46 id. 163; Whit-taker v. Janesville, 33 id. 76. The policies were forfeited by nonpayment of premiums. Thompson v. Insurance Co. 104 U. S. 252, 261; New York Life Ins. Co. v. Statham, 93 id. 24; May, Insurance (3d ed.), § 360 F. The agent who procured the policies had authority to cancel and did cancel the same before the loss. Schauer v. Queen Ins. Co. 88 Wis. 561; Hartford F. Ins. Co. v. Reynolds, ^6 Mich. 502; Mallory v. Ohio Farmers’ Ins. Co. 90 id. 112; Stone v. Franklin F. Ins. Co. 105 N. Y. 543; Buick v. Mechanics’ Ins. Co. 103 Mich. 75; Standard Oil Co. v. Triumph Ins. Co. 64 N. Y. 85; Newark F. Ins. Co. v. Sammons, 11 Ill. App. 230; McCartney v. State Ins. Co. 33 Mo. App. 652. He was expected to supply the places of policies expired or canceled, and the plaintiff ratified his acts by accepting new policies after •others had been surrendered by him and canceled. Mechem, Agency, §§ 148,177; Paine v. Wilcox, 16 Wis. 202,218. The questions submitted to the jury covered only a part of the controverted issues. Pratt v. Peak, 65 Wis. 463,471; Eerk-Tiof v. Atlas Paper Go. 68 Wis. 674.</p> <p>They contended that ch. 235, Laws of 1893, was a reasonable and valid exercise of legislative power. The recital in the policies of the payment of premiums was prima facie evidence of that fact, and cast the burden of proof of non-payment upon the defendants. Credit given by the insurance agent was equivalent to payment. Whitwig-v. Miss. V. M. Mut. Ins. Go. 76 Wis. 592, 598; 8cheufier v.. Grand Lodge A. O. U. W. 45 Minn. 256; Elmer v. Mut. Ben. L. Asso. 19 N. Y. Supp. 289; Ostrander, Fire Ins. § 87. The-insurance agent had no authority to act for the insured in the matter of surrendering and canceling the policies. IIe> took them without authority. Body v. Hartford F. Ins. Go. 63 Wis. 157. When he had procured the policies his authority ceased. Hermcmn v. Miagara Ins. Go. 100 N. Y. 411; White v. Connecticut F. Ins. Go. 120 Mass. 230; Indiana Ins. Go. v. Hartwell, 100 Ind. 566; Broadwater v. Lyon F. Ins. Go. 34 Minn. 465; Quong Tue Sing v. Anglo-Nee. Ass. Gorp. 86 Cal. 566; Grace v. Am. Gent. Ins. Go. 109 U. S. 278; Mut. Ass. Soc. v. Scottish U. <& N. Ins. Go. 84 Ya. 116. He received his entire compensation from the insurance companies, and was their agent. Schomer v. Hekla F. Ins. Co. 50 Wis. 575; Know v. lycomi/ng F. Ins. Co. id. 671; Alka/n v. N. H. Ins. Go. 53 id. Í36; Ostrander, Fire Ins. 156. The-objection as to misjoinder of causes of action, not being taken by demurrer, was waived. Gary v. Wheeler, 14 Wis.. 281, and cases cited.</p>

S. GilsoN, Circuit Judge. Plaintiff filed a claim in the county court of Fond du Lac ■county against the estate of Charles F. Kimball, deceased. Such claim was allowed, and the executor appealed to the circuit court.

<p>Appeal from a judgment of the superior court of Douglas county: Charles Smith, Judge.</p> <p>This is an action for conversion of a sand pump, sand scow, and appurtenances. The defendants justify the taking of the property upon an execution issued upon a judgment in their favor against one A. K. Smith. It appeared at the trial that A. K. Smith and the plaintiff were brothers, and in 1893 were partners, and owned the property in question as partners, and used it in the business of pumping sand out of the bay at Superior. The plaintiff claims that his brother, A. K. Smith, largely overdrew his account, and that in May, 1894, they settled their partnership accounts, and that A. 3L Smith then transferred his share in the property in question to the plaintiff, in consideration of the settlement and release by plaintiff of his claim for such overdraft, which amounted, as claimed, to about $1,200. The defendants claimed that the transaction was void as to them, because they were then creditors of A, K. Smith, and that it was fraudulent as to creditors. A verdict for the plaintiff for $1,800 and interest was rendered, and from judgment thereon the defendants appealed.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>The plaintiff is a corporation organized under the laws of this state, and owns and operates by steam power a line of railway, consisting of two main tracks, from Milwaukee to Chicago. Said railway passes through the village of South Milwaukee and the cities of Racine and Kenosha, and is engaged in the carriage of passengers and freight. That within the village of South Milwaukee the plaintiff’s said railroad tracks cross Milwaukee avenue, one of the main public streets therein. Milwaukee avenue runs in an east and west direction, and crosses the railroad tracks nearly at right angles. Immediately south of the avenue is the plaintiff’s passenger station and depot grounds connected therewith, which station and grounds are necessarily used by the plaintiff in connection with its business and railroad, and the plaintiff is the owner of the whole thereof in fee simple. Such depot grounds abut upon the south side of the said avenue for a distance of 200 feet on the east side of its tracks. On the north side of said avenue, and immediately east of the railroad tracks, the plaintiff is the owner in fee simple of a strip of land or right of way fifty feet in width, abutting upon the north side of said public street. The plaintiff is the owner in fee simple' of the lands so within the public street to the center thereof on the south side for a distance of 200 feet and on the north side for a distance of fifty feet, subject, however, to the easement vested in the public therein, and the servitude necessarily incident to its occupation and use as and for a public highway.</p> <p>The defendant, at the dates and times herein mentioned, was, and is now, a corporation organized and existing under and by virtue of the laws of this state, having its principal office and place of business at Eacine. It appears ,by the articles of association of the defendant that it is authorized to build and operate a street railway with a track or tracks and cars to be run thereon for the .purpose of carrying passengers, merchandise, personal baggage, mail, and express from a point within the village of South Milwaukee northerly into and through the village of Cudahy, and the towns of Lake and Oak Creek, in the county of Milwaukee, and southerly into and through the town of Oak Creek aforesaid, and into and through the towns of Caledonia and Mt. Pleasant, and the city and county of Eacine, and into and through the towns of Somers and Pleasant Prairie, and the city and county of Kenosha.</p> <p>The defendant, at the time of the commencement of this action, was and is engaged in the construction of a railroad in and through the village of South Milwaukee and along said Milwaukee avenue in said village, and had reached the property, lands, right of way, and tracks of the plaintiff, and had men at work upon the construction of its roadbed in said street, and the laying of ties and rails thereon, and had threatened, and still threatens, that it will construct its road and lay its ties and tracks in said street over and across the above-described lands of the plaintiff and its railroad tracks on said lands, and string electric wires over the tracks for. the purpose of furnishing electric power for the running of its cars. Until restrained it had actually entered upon the said lands of the plaintiff abutting on said avenue, and had excavated therein, and made grades thereon, for the purpose of constructing its road, and had placed heavy ties on said grade for the purpose of laying the rails of its tracks thereon. The defendant intends to use said railroad, when constructed, for the transportation of freight, mails, and express matter, as well as for passengers. By its articles of association the defendant has the right to use locomotive engines and trains propelled by electric or any other power.</p> <p>The defendant admits that it is its object and purpose, if it may so lawfully do, to build and operate a street-railway system for the purpose of carrying passengers and personal baggage and other merchandise, mail, and express, under the authority of the proper municipal officers, and subject to such rules and regulations and the payment of such license fees as they may from time to time prescribe, over and along the public streets and highways within the village of South Milwaukee aforesaid, and over and along the highways north and south of said village; that the village board of South Milwaukee, by ordinance, granted authority and permission to the defendant, its successors and assigns, to lay and maintain single or double tracks for a street railway with all necessary switches, curves, turnouts, Y’s, poles, wires, and other appliances and conveniences usually employed in the operation of a street-railway system using electric or other power excepting steam, over and upon, along and across those certain streets, bridges, culverts, and public places within the corporate limits of the village described, including Milwaukee avenue, and to operate thereon a street-railway system with electric or other power excepting steam for the carrying of passengers, personal baggage, merchandise, mail, and express, for the term of fifty years.</p> <p>The supervisors of the town of Oak Greek had given to the defendant like authority; but the plaintiff has not given the defendant its consent or permission to construct such railway upon or across its said lands and railroad, or upon said street in front of said lands, nor to enter upon said lands of the plaintiff in said street for the purpose of grading the same, or laying ties or constructing its railway thereon, or stretching electric wires over and across the same.; nor has the defendant entered into any agreement with the plaintiff company as to how and upon what terms such crossing, if made at all, shall be made, or any agreement touching plaintiff’s damages on account.of such crossing by defendant’s road; nor has the defendant taken any steps, by condemnation or otherwise, to acquire the right to cross the plaintiff’s said lands and railroad in the manner and for the purpose in which it proposes to cross the same.</p> <p>The defendant threatens and intends to, and the plaintiff believes that it will, enter upon the plaintiff’s said land, and cross its said railroad with the defendant’s railroad now being constructed, without the consent of the plaintiff, and without making any compensation to it, unless restrained by the order and injunction of the court. If the defendant shall construct and operate its railroad over and upon and along the plaintiff’s lands and railroad, serious and irreparable damage and injury will .necessarily result to the plaintiff in its use and enjoyment of said lands and railroad, and in the exercise of its rights and franchises connected therewith.</p> <p>November 17, 1896, the plaintiff commenced this action to perpetually enjoin the defendant from constructing its said track over and across or upon the said land and the railroad tracks of the plaintiff, or any part thereof, and from in any manner working upon or interfering therewith, and from proceeding with the laying of the track of the defendant over and across the railway and lands of the plaintiff, or in any manner interfering with the same during the pend-ency of this action, or until the further order of the court. January 9, 1897, the plaintiff’s motion for a preliminary injunction was denied, with $10 costs of motion. From that order, and the whole thereof, the plaintiff brings this appeal.</p> <p>They contended, among other things, that the railway sought to be constructed -by the defendant has all the characteristics of a commercial railway, and imposes an additional burden upon the street, for which the abutting owners are entitled to additional compensation. Indianapolis, B. dc W. R. Co. v. Hartley, 67 Ill. 439; Ford y. O. <& N. W. R. Go. 14 Wis. 609; Pomeroy v. M. (& G. R. Go. 16 id.- 640; Pennsylvania R. R. v. Montgomery Go. P. R. Go. 167 Pa. St. 62; Bohlman v. G. B. & L. P. R. Go. 30 Wis. 105; Diedriehs v. N. W. U. R. Co. 33 id. 219, 221; Uren v. Walsh, 57 id. 98, 101.</p> <p>They argued that, if the right of the defendant to carry freight be disallowed, that would not affect its rights in other respects. Thompson, Corp. § 229; Beekei v. Union B. c& L. Asso. 88 Pa. St. 211; Albright v. lafa/yette B. de 8. Asso. 102 id. 411; Eastern Plank R. Go. v. Vaughn, 14 N. Y. 551; Oregon R. & N. Go. v. O. R. Go. 130 U. S. 1, 25; People ex rel. Peabody v. Chicago Gas■ Trust Co. 130 Ill. 268; 8. O. 8 L. R. A. 497, 506. A street railway, unlike a commercial railway, so uses a street as not to exclude or seriously obstruct the common travel. Booth, Street Railway Law, § 83; Hoba/rt v. Milwaukee Gity R. Go. 27 Wis. 194; Briggs v. Lewiston & A. Horse R. Go. 79 Me. 633; Newell v. M., L. db M. R. Go. 35 Minn. 115; Detroit Gity R. Go. v. Mills, 85 Mich. 656; East End St. E. Co. v. Doyle, 9 L. R. A. 100; Halsey v. Rapid Transit Si. R. Go. 47 N. J. Eq. 380; Chicago, B. & Q. R. Go. v. West Chicago St. R. Go. 156 Ill. 268; State ex rel. Roebling v. Trenton P. R. Go. 33 L. R. A. 129; Montgomery 90. S. A. <& W. R. Go. 104 Cal. 186; S. 0. 25 L. R. A. 654; Nichols v. Ann Arbor da Y. St. R. Go. 16 L. R. A. 371. The convenience of abutting owners may, to a reasonable extent, be encroached upon without impairing their constitutional rights or entitling them to compensation. Gushing v. Boston, 122 Mass. 173; Att'y Qen. v. Metropolitan R. Go. 125 id. 517. The right of a street railway to be considered a part of the general public easement, and its right to cross the tracks of steam railways, have been fully recognized by the courts. Chicago da O. T. R. Go. v. Whiting, H. da E. G. St. R. Go. 139 Ind. 297; S. O. 26 L. R. A. 337; Pittsburgh, 0., O. da St. L. R. Go. v. West Ohieago St. R. Go. 156 Ill. 385; New Yorlt, N. H. da H. R. Go. v. Bridgeport Traction Go. 29 L. R. A. 367; Old Golony R. Go. v. Roclcland da A. St. R. Go. 161 Mass. 416.</p>

<p> landlord’s liability to tenant: Negligence of independent contractors. </p> <p>1. A landlord who, though not required by the lease to make repairs, undertakes at the request of his tenant to put a new roof upon the leased building, is bound to use reasonable care and skill to prevent injury by the elements, to the property of his tenant therein while engaged in removing the old and putting on the new roof, and is liable for any such injury caused by the want of such care and skill, notwithstanding his undertaking was without consideration. ,</p> <p>In such a case, where injury occurs to the tenant’s property in the building from rain through the uncovered roof, the landlord cannot escape liability therefor on the ground that it resulted from $he failure of the persons who had undertaken the job, as independent contractors, to exercise reasonable care to avoid such injury.</p>

<p>Appeal from a judgment of the circuit court for Jefferson, county: Johk E. BeNNett, Circuit Judge.</p> <p>The defendant is a mutual life insurance company, organized by ch. 1, Laws of 1887. On June 23, 1892, it issued to one Francis J. Cory a certificate of membership, whereby it agreed to pay $1,000 to his parents, Sampson Gory and Ann Gory, within ninety days after proofs of his death should be received by its secretary. The membership fee and all assessments were paid by Francis J. Cory, except one assessment of $1.20, which was paid by Sampson Gory. The circumstances and reason of this payment by Sampson Gory are unexplained. In February, 1893, Francis assigned his certificate of membership to the plaintiff, and duly executed and filed with, the secretary of the company a written instrument directing the sum named in the certificate to be paid to the plaintiff, and requesting the company to “send all assessment notices” to the plaintiff. Notices of all subsequent assessments were sent by the company to the plaintiff, and he paid them to the company. The plaintiff paid Francis $50 for the assignment, and subsequently paid the-company, for assessments, upwards of $50 more. The plaintiff was in no way related to Francis. On May 12, 1895, Francis died. At the time of his death the certificate of membership in the defendant company was in full force, and no assessment was unpaid. Proofs of the death were duly made, and delivered to the defendant’s secretary. The company admitted its liability for the loss, but did not pay it, because it was claimed by both the plaintiff and the defendants Sampson and Ann Gory. At the request of the defendant company, and by stipulation of the parties, Sampson Gory and Ann Gory were made parties defendant. They claimed the money on the ground that the assignment of the certificate of membership to the pláintiff was unauthorized and void, for the reason that the plaintiff had no insurable interest in the life of Francis. There was ho controversy about the facts. The trial was by the court, without a jury. There was judgment for the plaintiff for the whole amount of the certificate, from which all the defendants appeal.</p> <p>They argued, inter alia> that one of the beneficiaries named in the certificate paid a part of the consideration, and had a vested interest which could not be disposed of without his consent. The assignment was, in terms, of money to accrue to the estate of the assured, and was inoperative because there was none coming to his estate. The plaintiff had no insurable interest in the life of the assured and could not hold the insurance by assignment. Conn. Mut. L. Ins. Go. v. Schaefer, 94 U. S. 457, 461; Warnoch v. Davis, 104 id. 776, 779; Grotty v. Union M. L. Ins. Go. 144 id. 621, 625; Missouri Yalley I. Ins. Go. v. Sturges, 18 Kan. 93, 26 Am. Rep. 761. One of the original beneficiaries being a married-woman, her interest was, under sec. 2347, R. S., as amended by ch. 376, Laws of 1891, not subject to the control of the -assured. . ^</p>

<p> Sheriffs: Compensation for board of prisoners. </p> <p>Our statutes relating to the compensation of sheriffs for the maintenance of persons confined in jail (secs. 4947, 4950, R. S.), clearly contemplate that a sheriff shall keep accurate accounts of all charges and expenses therefor and present them to the county board to be audited, .and if he fails to do so he can recover from the county only such expenses as he is able to show that he actually incurred, by clear and satisfactory evidence, and only such as are reasonable.</p>

<p>Appeal from a judgment of the circuit .court for Jefferson county: John ]R. Bennett, Circuit Judge.</p> <p>This is an action to recover the second instalment upon a land contract. On the 12th day of December, 1892, the plaintiif company entered into a written contract with the ■defendant to sell him a certain lot of land in the village of South Milwaukee for the sum of $375, to be paid in four equal annual instalments; the first instalment to be paid at the date of the contract, and others annually thereafter, with interest on the deferred payments. The defendant made the first payment of $93.75 at the date of the contract, but refused to make the second payment, which fell due December 12, 1893, and also refused to pay the taxes upon the lot for the year 1893, which by the agreement he was required to pay. Upon this refusal this action was brought to recover such second payment, with the amount of such taxes, with interest. The complaint is in appropriate form for the recovery of said sums. The answer sets up as a defense that the land contract was obtained by false and fraudulent representations to the effect that an adjoining block had •been purchased and paid for in full by Frederick Pabst, who had agreed to build certain extensive buildings thereon in the following spring, and, further, that the plaintiff had entered into a bond to the county of Milwaukee to grade, gravel, and sidewalk the street upon which the lot was situated prior to May 1, 1895. The answer further alleged that the defendant had rescinded the' contract. The answer also contained two counterclaims: First, a counterclaim to recover $93.75, paid at the date of the contract, •with interest, on the ground that the contract was induced by'false and fraudulent representations, and had been rescinded; and, second, a counterclaim to recover damages for breach of the contract, by reason of the failure of the plaintiff to grade, gravel, and sidewalk the street. The plaintiff, by his reply, alleged that the defendant, by his second counterclaim, waived any and all rights he may have had to rescind the contract, and that by such second counterclaim he had affirmed and ratified said contract. Further replying, the plaintiff admitted that the grading, graveling, and laying of sidewalks upon said street had not been completed, but alleged that the work was progressing, and would he completed as fast as necessity existed.</p> <p>Upon the trial the plaintiff demurred, ore terms, to the answer and counterclaims, which being overruled, the plaintiff moved to strike out the defense because it was inconsistent with the counterclaims, and further moved that the-second counterclaim be stricken out as inconsistent with the first counterclaim, all of which were denied by the court,, and exception taken. The plaintiff also objected to the submission of any evidence on the first counterclaim, on the ground that the defendant was estopped by the admission, of the second counterclaim, which objection was also overruled. The trial resulted in a verdict for the defendant, assessing his damages on the first counterclaim at $134.35,. being the amount of the first payment with interest thereon from the time of the alleged rescission of the contract.. From the judgment upon the verdict the plaintiff appealed.</p> <p>To the point that the answer set up inconsistent claims which it was not the design of sec. 2657, R. S., to allow, they cited Hartwell v. Page, 14 "Wis. 49; Bhemhart v. Whitehead, 64 id. 47; Hooker v. Greene, 50 id. 271,* 1 Ency. of PL & Pr. 856; Burnham v.. Call, 2 Utah, 433; Brown v. Bowen, 90 Mo. 190; MoGlana-Jian v. West, id. 322; Steenerson v. Waterlury, 52 Minn. 211;. Blodgett v. MoMurtry, 39 Neb. 210; Pavey v. Pavey, 30-Ohio St. 600.</p>

Bennett, Circuit Judge. The action is upon a promissory note executed by the defendant to A. Fuermann, Sr., for $10,806.88, and by the payee made a gift to the plaintiff, who was his daughter. The defense was want of consideration. The payee of the note was a wealthy brewer. He put his brewing property into a corporation,— the defendant brewing company. He gave stock to two of his sons, retaining the major part himself.

<p> Nonsuit: Master and servant: Negligence. </p> <p>1. The same rule applies to a motion for a nonsuit made at tjie close of all the evidence as to one moved for at the close of plaintiff’s evidence,— that it should not be granted when the evidence on the part of the plaintiff alone, under the most favorable construction it would reasonably bear, would support a verdict in his favor.</p> <p>2. Where, in an action against an employer for an injury to an employee, alleged to have been caused by the negligence of the defendant in furnishing to the plaintiff a defective ladder to use in the discharge of his duties, there was testimony on the part of the defense to show that the ladder was apparently sound, and had .shortly before the accident safely carried the weight of two men, and in the opinion of an expert would carry 900 pounds of steady weight, held, that the reasonable probability was that the ladder broke from some cause other than plaintiff’s weight, as testified to by him, and a nonsuit was properly granted.</p>

Scott Sloan, Circuit Judge. The plaintiff, in February, 1892, was appointed by the circuit court for Dodge county to assist the district attorney of Dodge county in the prosecution of one Cook, charged with illegal banking. Thereafter Mr. Williams performed extensive and valuable services in such prosecution, and in November, 1892, presented his itemized bill therefor to the county board of Dodge county, amounting in all to $2,640.70.

<p> Contract: Warranty. </p> <p>The plaintiff sent a written proposition to the defendants in which they said, “We herewith give you estimate and specifications for heating your new house; . . . wewillfurnishandsetuponeNo.29(> furnace . . . complete and ready for use. . . . We guarantee capacity of this furnace, under proper management, to heat all rooms with registers connected with furnace ” to a specified temperature, “provided that in the event of failure, we are immediately notified of such failure of said furnace so to heat said rooms. In case of said failure and notice of the same, we shall have the option of making said apparatus heat said rooms as agreed, or to remove the same, we refunding the money paid thereon.” The defendant accepted the proposition. Held, that it constituted a contract on the part of the plaintiff to furnish a furnace or apparatus suitable for heating defendant’s house to the prescribed temperature by a volume of hot air, and its representations constituted an express warranty that it should be suitable and sufficient for that purpose; and that a furnace which was so defective as, when properly used, to send forth noxious coal gas to such an extent as to render the rooms unwholesome and unsuitable for occupancy, is not a suitable one for heating a house, though it may be able to furnish the required degree of heat; and such defect is a good defense to an action to enforce a lien for the price, of which the defendants may avail themselves without taking out and delivering the furnace to the plaintiff.</p>

•' The plaintiff is by trade a blacksmith. The defendants were copartners, carrying on a blacksmithing business. The plaintiff hired to them to work at his trade for five years for agreed wages, to be paid at the end of each month. The contract was reduced to writing.

D. Hastings, Je., Circuit Judge. This is a creditors’ suit. The plaintiff was a judgment creditor of the defendant Theodore Eul, Sr., by judgment for $2,637.72, rendered and docketed December 14, 1891, on which execution had been returned unsatisfied.

D. Hastings, Jb., Circuit Judge. Tbis was an action upon a policy of insurance, issued by tbe defendant company to tbe plaintiff, in tbe sum of $500, to wit, $300 on bis building, and $200 on bis stock of liquors and saloon fixtures therein. Tbe property insured was totally destroyed by fire, June 14, 1895, notice of wbicb was immediately given to tbe defendant; but proof of loss was not furnished to it until more than sixty days after tbe fire, namely, October 8, 1895.

<p> Master and servant: Negligence: Special verdict. </p> <p>1, In an action for a personal injury to a foreman in the defendant’ssawmill, caused by the breaking of a nut which supported the sleeve or covering of the band-saw, thus letting such sleeve fall upon the plaintiff’s hand, which he had put under such sleeve to examine the machinery instead of using the manhole provided for that purpose, which was safe, the jury by special verdict found that the nut was broken prior to the accident; that with it so broken the machine was not reasonably safe for use in the mill; that its condition could have been discovered by the defendant by the exercise of ordinary care; and that the plaintiff was not negligent.. Held, that such verdict would not support a judgment for the-plaintiff, for the reason that it failed to find that the use of the■ machine in that condition was negligence as against the plaintiff, or that such negligence was the cause of the accident.</p> <p>% Such verdict was also inconsistent in that it, in effect, held the defendant to a higher degree of care as to its machinery than the-plaintiff, on whom it relied as an expert.</p> <p>3. Upon the evidence, the defendant was free from negligence, but the plaintiff must be held to have been guilty of negligence inputting his hand under the sleeve to do work there instead of' using the manhole which had been provided by the defendant, where it would have been safe, and, knowing the danger, he by so-doing assumed the risk.</p>

<p> Constitutional law: Remedies: Action to recover land sold for taxes: Parties: Pleading: Waiver. </p> <p>1. The provision of ch. 278, Laws of 1888, requiring as a condition for the maintenance of an action by the former owner to recover land conveyed by a county holding a tax title thereon to the state, and subsequently sold by the state, that the plaintiff shall pay into the county treasury the amount of taxes paid since the sale, with costs and expenses, is not in conflict with sec. 9, art. I of the state constitution, securing to every one a certain remedy in the law for - all wrongs, etc., without purchase, etc., since such payment is not absolute, but is a deposit pending the suit, and the money is to be returned to the plaintiff in case he fails to recover the land.</p> <p>2. The failure of the plaintiff in such an action to deposit the amount of such taxes as required by that statute as a condition of maintaining his suit is matter in abatement. If it appears on the face of the complaint it may be taken advantage of by demurrer, otherwise only by plea in abatement, and if not so raised the objection is waived.</p> <p>8. The state having conveyed the lands is under some obligation to make the title good to its grantee, and the provision of ch. 301, Laws of 1885, allowing the state to be made a party defendant to pending actions to recover such lands in order to protect its own interest, does not contravene any constitutional right of the plaintiff therein.</p> <p>4. There is nothing in the provision of ch. 74, Laws of 1889, that the title acquired by the state under deeds taken pursuant to the act of 1885, to lands conveyed by it to private persons prior to taking such new deeds, shall inure to the benefit of such persons, to change the relation of the state to such lands, or its obligation to maintain the title.</p>

<p> Appeal: Finding sustained. </p> <p>Upon appeal from a judgment of the circuit court disallowing claims against an estate, if the findings of the court are fairly supported by the evidence such judgment will be affirmed where, though the evidence on the part of the claimant is not specifically contradicted by any witness, it is rendered inherently improbable by other evidence.</p>

E. Bailey, Circuit Judge. The defendant owned a system of waterworks in the city of Eau Claire, witb the usual system of pipes along the city streets. At one place in the street called Galloway street the Eau Claire river, at a time of freshet, had washed out a part of the street and uncovered the defendant’s water pipe.

F. Bailey, Circuit Judge. This was an action to recover damages for injuries to a horse shipped over defendants’ road. Plaintiff applied to defendants’ station agent for a car in which to transport his horses from Portage to G-lidden, this state. Such agent designated a car for such purpose.

H. Johnson, Circuit Judge. This is an action to recover the value of 10,800 tons of pig iron levied on by the sheriff of Mercer county, Pennsylvania, on the 19th day of July, 1893, upon an execution issued out of the court of common pleas of Mercer county, Pennsylvania, upon a judgment in favor of Price McKinney, receiver of Corrigan, Ives & Co., for $178,908, against the Douglas Furnace Company, a corporation under the laws of the state of Illinois.

D. ClevelaNd, Judge. Tbe case is stated in the opinion. They contended that the determination of the question whether the charges against the saloon keeper were true required the exercise on the part of the common council of official judgment and discretion. It was not a ministerial duty, and could not be controlled by mandamus. State ex rel. 0., 0. <$s G. R. Go. v. Whitesides, 3 L. R. A. 777; High, Extr. Leg. Rem. §§ 24, 34, 42, 47, 238; 14 Am. & Eng.