Volume 96 — Wisconsin Reports

Exceptions from the circuit court for Winnebago county: This action comes up on alleged exceptions filed by the defendant, pursuant to sec. 4720, E. S. These exceptions are stated in narrative form, signed by the presiding circuit judge* accompanied by a certificate of the clerk of the court, and are to the following effect: On April 10, 1896, the defendant was convicted, under sec. 4541, R. S., of the offense of receiving on deposit $300* April 11, 1892, at Manitowoc, and…

<p>Appeal from a judgment of the circuit court for Juneau county: O. B. WyhaN, Circuit Judge.</p> <p>Action to recover damages for an alleged conspiracy to defraud. The complaint sets forth, in substance, that in the summer of 1893 defendants entered into a fraudulent conspiracy to defraud wholesale dealers in goods, wares, and merchandise; that the scheme agreed upon was that defendant Moses Josephson should purchase goods of such dealers .on credit, without any intention of paying for the same, have the same delivered at his store in New Lisbon, Wisconsin, and that the.same should then be sold, conveyed away, and concealed in such a way that the proceeds might be divided between the co-conspirators; that pursuant to such conspiracy, in August and September, 1893, goods, wares, and merchandise to the amount of $434.83 were purchased of plaintiff in the name of said Josephson, were delivered to him, and disposed of for the benefit of the defendants pursuant to the aforesaid fraudulent scheme; that no part of such goods has been paid for, and that by reason of the facts plaintiff has been damaged in the said sum of $434.83 and interest; that, further, in pursuance of said fraudulent conspiracy, goods, wares, and merchandise were at various times during the year 1893, particularly stated, purchased of some twenty-four different persons, copartnerships, and corporations, the name of each being given, with the amount purchased ; that all of such goods were delivered to said Josephson, and disposed of for the benefit of the defendants pursuant to the aforesaid fraudulent scheme, no part of which has been paid for, to the damage of the sellers to the amount of their respective sales and interest; that before the commencement of this action such sellers, for a valuable consideration to them respectively paid, sold, assigned, and conveyed to plaintiff their respective claims for goods so sold and delivered, together with their respective causes of antion for damages against defendants on account of the aforesaid conspiracy. The aggregate of plaintiff’s claim for damages for goods procured of it pursuant to the aforesaid fraudulent scheme, and of the several other claims mentioned, amounted to $5,102.32, for which sum judgment was demanded, with interest. The defendants, except Josephson, joined in an answer to the complaint.</p> <p>The result of the trial was that the jury found for the plaintiff on all the issues, and assessed the damages at the full amount claimed, which, with interest, made $5,432.25. Proceedings wTere duly had on the trial, and subsequent thereto, requisite to preserve for review the questions discussed in the opinion. Judgment was rendered on the verdict, and defendants appealed.</p>

<p> Malicious prosecution: Evidence: Arrest: Submission to jurisdiction: Termination of prosecution: Failure to charge an offense: Prosecution instituted to collect a debt: Want of probable cause. </p> <p>1. In an action for a malicious prosecution claimed to have been in. stituted for the purpose of collecting a debt, a letter written to the plaintiff a few days before the issuance of a criminal warrant, by the cashier of a bank in behalf and by authority of defendants, requesting her to pay the account in question at once “and save the trouble of taking other steps to collect it,” was admissible in evidence.</p> <p>2. In such action the testimony of plaintiff’s brother-in-law that an officer having a warrant for her arrest had requested him to inform her of that fact and that she must appear before a justice of the peace at a certain time, and that he had so informed her, was admissible, in connection with other evidence (showing, among other things, that the warrant had been issued, and that she had so appeared), as tending to prove an arrest; and such evidence is held sufficient to sustain a finding that the prosecution against the plaintiff was actually commenced and that in pursuance thereof she submitted herself to the jurisdiction of the justice.</p> <p>S. Evidence in such case showing, among other things, that when plaintiff appeared before the justice the case was postponed to a certain time; that at that time the plaintiff again appeared, but no one appeared against her,.and the justice said there was nothing on his docket; that the warrant was never returned; and that nothing further was ever done in the matter — is held sufficient to sustain a finding that the prosecution was terminated before the action therefor was commenced.</p> <p>4» It is no defense to an action for malicious prosecution that the complaint made by the prosecutor failed to state any offense and that the warrant issued thereon was void.</p> <p>6. The mere fact that a criminal prosecution was instituted for the purpose of collecting a debt will not justify a finding that there was a want of probable cause. LueeJc v. Heisler, 87 Wis. 644, limited and explained.</p>

<p>Appeal from a judgment of the circuit court for Waukesha county: Waeham Paeks, Circuit Judge.</p> <p>The case is stated in the opinion.</p>

<p>Appeal from a judgment of the county court of Waukesha county: M.' S. Geiswold, Judge.</p> <p>The facts are stated in the opinion.</p>

<p> (1,2) Change of venue: Transmission of papers: Motion to extend time. (3-5) Evidence: Boohs of account: Proof, of contents. (6-13) Insur-, anee against fire: Court and jury: instructions: Credibility of witnesses: Fraud avoiding policy: Special verdict. </p> <p>1. An order for a change of venue, though made pursuant to a stipulation of the parties, is vacated, under sec. 2627, B. S., unless the' papers are transmitted within twenty days.</p> <p>S.A motion in such a case that the clerlk be directed to transmit the papers, made after the expiration of the twenty days, not on any ground appealing to the discretion of the court, but on the theory that the order for the change was still in force, could not be treated as a motion for an extension of the time for transmission.</p> <p>45. The amount of stock on hand in a wholesale mercantile establishment at the time of a fire cannot be shown by testimony as to the contents of the account books showing the purchases and sales since the last inventory, where the witness testifying thereto did not keep the books, and their correctness is not verified in any way, and the books themselves are not in evidence.</p> <p>4. But where, in such a case, no other definite evidence exists, if the books are reasonably verified as correct records of the.daily trans- - actions in the business as the same were regularly reported to the office to be recorded in such books, with proof that the books were relied upon by the proprietors solely as a repository of the facts in regard to the business, and that they were uniformly found to be correctly kept, a witness who has had occasion to I refer to them from time to time, and who thereby and through a \ general knowledge of the business has been convinced of their correctness, may properly, testify, by their aid, to their contents Ías facts, without having personal knowledge of such facts independently of the books, and without ever having had any other knowledge of-all the individual transactions than such as might be gained by generally superintending the business.</p> <p>5. The aniount of sales made by an insured after a loss, and the amount of the stock at a certain time after the loss, cannot be proven by the insurer by testimony of an adjuster as to what appears on the books of the insured, the books themselves being the best evidence ■ of their contents.</p> <p>6.In an action on an insurance policy, where one of the defenses supported by evidence was that plaintiff had destroyed of injured goods, after the fire, to increase .the loss, it was error to instruct •the jury that whatever damage wag done to plaintiff’s-property was in consequence of the fire.</p> <p>7.A charge that the jury are not at liberty to reject the testimony of any witness because his statements are in conflict, with those of any other witness, is held erroneous because it may well have been understood in a sense which would make it an invasion of the province of the jury.</p> <p>8.A charge that if the jury concluded that any witness knowingly and wilfully testified falsely upon any material point they were at liberty to reject all his testimony unless he was corroborated by the statements of other credible witnesses, is erroneous, since such corroboration may be by any credible evidence or facts and circumstances that may fairly be inferred therefrom.</p> <p>9.A charge that fraud may be shown by proving circumstances from the existence of which fraud is the natural and irresistible inference, and that if the case made out is consistent with fair dealing and honesty the charge of fraud fails, is erroneous in a civil action as practically requiring the fraud to be shown beyond a reasonable doubt.</p> <p>10. A charge that fraud will never be presumed from mere obscurity or apparent error, nor from incorrectness of a person’s express estimate of the value of his property although that estimate may have been found incorrect, is an invasion of the province of the jury.</p> <p>11. Where an insurance policy provides that it shall be void in case of any fraud on the part of the insured, such fraud need not have all the elements necessary to sustain an action for deceit; but'any trick, artifice, or deception practiced with the object of securing some advantage in the adjustment or payment of a loss, to the prejudice of the insurer, and liable to have that effect, avoids the policy. Commercial Bank v. Firemen’s Ins. Co. 87 Wis. 297, distinguished and limited.</p> <p>12. Where, pursuant to the terms of a policy, it is avoided by fraud of the assured, a claim under the policy for a loss already sustained is forfeited also.</p> <p>13. The discretion of the trial court in respect to the questions to be submitted for a special verdict does not go to the extent of warranting a refusal to submit a proper question covering a material controverted fact, .unless that subject is covered by other questions submitted.</p>

N. Austin, Judge. . This is an action to recover on a policy of fire insurance covering the same property mentioned in the case of F. Doh-men Go. v. Niagara Fire Ins. Co., ante, p. 38. The action is on one of the policies mentioned in' such previous case. It was issued October 22, 1892, insuring such property for the term of one year to the amount of $1,250.

<p>Appeal from a judgment of the circuit court for Milwaukee .county: D. H. Johnson, Circuit Judge.</p> <p>The case is thus fairly stated in the appellants’ brief:</p> <p>'This is an action to remove a cloud upon the title of certain real estate, by annulling a trust deed and a will, in certain-particulars, and having them declared void as being in violation of the statutes against unlawful suspension of the power of alienation. '</p> <p>Prior to the 19th day of November, 1874, Robert IT. Ca-bell, of Baltimore, Md., owned fifteen lots in the city of Milwaukee. On said 19th day of November said R. H. Cabell and Catharine, his wife, made and executed a trust deed of said lands to I. A. Lapham and George G. Houghton, both of the city of Milwaukee, reciting that they (the Cabells) had an only child, Virginia Catharine Cabell, then in her fourteenth year, and were anxious to convey said lands by absolute title,, free from claim of dower, to trustees, for the uses and purposes therein set out, and conveying the same to said Lap-ham and Houghton, trustees, their successors or assigns, upon the trust and purpose: (1) That they should hold the same for the "use of grantor R. H. Cabell during his life, and permit him to use, occupy, and enjoy the same, to take, receive, and enjoy the rents, issues,- and profits thereof during his life, with power to lease the same and give acquittances for the rents thereof without the same passing through the trustees;, the said R. IT. Cabell reserving to himself a life estate in said lands, and the rents, issues, and profits thereof, as fully as if said deed had never been made. (2) That trustees should hold said lands at the death of said Cabell to and for the sole use and benefit of his said only child, Virginia Catharine, if she should survive him, during her life, to be freed and discharged from, and in no manner to be subject to, the debts, contracts, control, or marital rights of any husband she might take, but as her sole, separate, and exclusive estate during her life, and trustees should permit her to use, occupy, and enjoy the same, to take the rents, issues, and profits thereof as her sole, separate, and exclusive estate, with power in her (or in her guardian^ during minority or until marriage) to-lease the same and give acquittances for rents, without the same passing through said trustees, during her life.</p> <p>Herein said Virginia Catharine was granted power and authority, after reaching twenty-one years of age, and while she should be married or a widow, to devise, appoint, and ■distribute said lands, or any part thereof, in fee simple, by her last will, in such manner or proportions as she might think proper, between her children, if auy, living at her death, and the lawful issue of any children of hers who might die in her lifetime leaving such issue; and she might allot the whole of said lands to any one or more such persons to the exclusion of the others, with which power and right of selection she was expressly invested and intrusted, and the execution whereof was to depend upon her own free will and option; and in the event that she should die, leaving a will in the execution of such power, the trustees should ■surrender and convey said lands, or such part thereof as she should so appoint, to such of her children living at her death, or the lawful issue of any child of hers that might have died in her lifetime leaving such issue, as she might by her will have selected or appointed, and in such manner or proportions as she might thereby direct or appoint.</p> <p>But (3) if Virginia Catharine should die without leaving .a will in the execution of said power, the trustees' should convey said lands in fee simple equally to the children of said Virginia Catharine living at her death, and the issues of any child of hers that may have died in her lifetime leaving issue, such issue taking according to the right of representation.</p> <p>If (4) Virginia Catharine should die without leaving any ■child living at her death, or the issue of any child of hers that might have died in her lifetime, trustees should hold the said lands for .the use of Catharine Cabell, her rnotKei’, during her life, and at the death of Catharine convey the same in fee simple to such persons as should then be the heirs at law of said R. H. Cabell according to the laws of the state of Wisconsin.</p> <p>If (5) Virginia Catharine should clie without leaving any child living at her death, or the issue of any child of hers that may have died in her lifetime leaving issue, and if Cath-arine Cabell, her mother, should not survive her, trustees should convey said lands to such persons or person as should at the death of said Virginia Catharine be the heirs at law of said R. H. Cabell, according to the laws of. Wisconsin.</p> <p>If, (6) at the death of said R. H. Cabell, Virginia Catharine should not be living, trustees should convey the lands to her children, if any should be living at her death, and the issue of any child of hers that might have died in her lifetime leaving issue, such issue taking by representation.</p> <p>If (7) Virginia Catharine should then have died without leaving child or issue, trustees should hold for Catharine Cabell during her life, and at her death convey to such persons as should then be heirs at law of said Cabell according to the laws of Wisconsin.</p> <p>If (8) at R. H. Cabell’s death Catharine Cabell should also be dead, trustees should convey to such persons as should at his death be his heirs according to the laws of Wisconsin.</p> <p>It was provided further in and by said trust deéd that the trustees should have no power to sell, lease, incumber, or dispose of said lands, or the rents, issues, or profits thereof, and that it was intended solely to convey the lands to them for the purposes set out, and no other, and they should hold the same for the benefit of the persons mentioned, and convey to such persons, as aforesaid.</p> <p>This trust deed was by said R. H. Cabell caused to be recorded in the register of deeds’ office in Milwaukee county-on November 25, 1874; and said Lapham and Houghton consented to accept the trusts therein, but never entered on the performance thereof, or into the possession of the property. Said R. IT. Cabell died at Baltimore about the 20th day of February, 1875, leaving surviving him his wife, Cath-arine, and his only child, Virginia Catharine, and leaving a will, the second paragraph whereof runs as follows: “ 2nd. Having conveyed to I. A. Lapham and George G. Houghton, of Milwaukee, as trustees, certain lots of land in that city,, fifteen in number, by a deed in my lifetime,- in which my wife united, dated on November 19,1874, and to be recorded in said city, in which said deed the said fifteen lots, all of them and each of them, are fully described, I do hereby refer to said deed for the purpose of ratifying and confirming the same, if necessary, and of. further declaiming that it is my wish and desire that the said fifteen lots of land therein described should at my death pass to such persons, and on such uses, trusts, and limitations as are in said deed expressed, and none other; and if this shall, by any possibility, have not already happened and been acomplished by virtue of said deed before my death, it is my will and intention that it may and shall be brought to pass by this my will.” All the rest and residue of his property, beyond the fifteen lots above mentioned, and excepting the property owned by his wife, the testator devised in fee to his wife and child equally, share and share alike.</p> <p>The will was admitted to probate by the county court of Milwaukee county. Catharine Cabell, wife of testator, was appointed guardian, under the will, of Virginia Catharine, and possessed and controlled the lands in suit until Virginia Catharine became twenty-one years of age in 1882, since which time she has been in possession and control thereof. About 1883 Virginia Catharine was married to B. H. Tyson, and she has two children, Virginia Cabell Tyson, aged nine years in October, 1893, and Juliet Catharine Tyson, aged eight years in March, 1894. Vi/rginia Catharine brings this action to annul said trust deed and will as far as. they undertake to dispose of said lands beyond her own life, and to have the court declare that said B. H. Cabell, beyond providing by said trust deed and will for life estates in himself and in his daughter, the plaintiff, died intestate; that said trust deed and will are, subject only to said life estates in grantor and in his daughter, void, as in violation of the statutes of this state prohibiting suspension of the power of alienation of. real estate, and, since "said R. II. Cabell died intestate as to the disposition of said lands bejmnd the life of his daughter, the same descend to her, as his heir at law. Her infant children aforesaid, Virginia Cabell Tyson and .Juliet Catharine Tyson, plaintiff' makes defendants, as well as George Gr. Houghton, one of the trustees; the other, I. A. Lapham, having died.</p> <p>Such is a statement of the facts found by the circuit court, and about which there is no dispute.</p> <p>It was further alleged by plaintiff, but not found by the court, that on the 8th day of January, 1894, Catharine Ca-bell executed and delivered to plaintiff a quitclaim deed of all her right, title, and interest in and to said lands, and that in the matter of the will of R. H. Cabell the county court, by its final order and decree, made and entered on May 13, 1875, ordered that all the property and estate of R. H. Ca-bell whatsoever, in the state of Wisconsin, be assigned to Catharine Cabell and Virginia Catharine equally, share and share alike.</p> <p>As conclusions of law the circuit court determined, first, that no estate, right, title, or interest whatsoever was created in said trustees, Houghton and Lapham, or either of them, by said deed, but that the rights "and interests sustained by the conclusions of law as valid grants passed directly to the beneficiaries thereof, and said deed was, as far as it undertook to create any estate in said trustees, null and void; second, that said deed was valid and effectual to, and did, create and reserve in said R. H. Cabell an estate for life in said lands; third, that in and by said deed R. H. Cabell created a valid and-effectual life estate in his daughter, Virginia Catharine, the plaintiff, and said deed was valid and binding for that purpose; fourth, that all the provisions -and conditions of said deed whereby an estate in remainder was sought to be created in the surviying children of Virginia Catharine, or in such of them as she might appoint by "her last will, are void, because of the unlawful suspension of the power of alienation sought to be effected through said remainder and the conditional remainder thereafter; fifth and sixth, that all parts and clauses of the said deed (and the will, as far as it attempted to ratify and confirm the same) whereby estates were attempted to be created, and the course of the property directed, beyond the life of Virginia Catharine, were in violation of the statutes of Wisconsin against perpetuities, and void, as in violation of the provisions of secs. 14,15, ch. 83, R. S. of 1858 of Wisconsin; and. seventh, that on the death of R; H. Cabell the entire estate in said lands descended as intestate property to the plaintiff, Virginia Catharine, the only child of said R. H. Cabell, and she was entitled to judgment establishing her title in fee to said lands, and to have said deed and will, as far as they conflicted therewith, set aside as a cloud upon her title. Judgment was entered in accordance therewith, and the defendant infants appealed.</p> <p>■They argued, among other things, that the grantor, his daughter, and his wife were all in being at the creation of the estate. At the end of the two lives of the grantor and his daughter her issue will take in possession if ever. This satisfies the statute. Ford v. Ford, 70 Wis. 19, 61; Scott v. West, 63 id. 529, 595; Saxton v. Welter, 83 id. 617, 629; Mon-tignani v. Blade, 145 N. Y. Ill, 120, 121; Schermerhorn v. Cottmg, 131 id. 48; Henderson v, Henderson, 113 id. 1; Chaplin, Suspension of Power of Alienation, §§ 90, 91, 122, 123; •Kelso v. lorillard, 85 N. Y. 177; Wilson v. White, 109 id. 59, ■61. There is no limit to the number of contingencies if the remainder vests at the end of two lives. Chaplin, Suspension of Power of Alienation, § 343, and cases cited. Yalid alternative estates are not affected by void alternative estates. Chaplin, Suspension of Power of Alienation, §483;. Schettler v. Smith, 41 N. Y. 328, 336, 345-, 346; Webster v. Morris, 66 Wis. 366, 393, 394; Jackson v. Phillips, 14 Allen, 639, 612; Perkins v. Fisher, 59 Fed. Rép. 801; Armstrong v. Armstrong, 14 B. Mon. 333, 346; Evers v. Ohallis, 7 H. L. Cas. 531, 555; 2 Washb. Real Prop. (5th ed.), Y61, Y78; Perry, Trusts, §381; 1 Jarman, Wills (6th ed.), 283, 287; AchermaEs Admir v. Vreéland’s Ey}r, 14 N. J. Eq. 23, 26; Monypenny v. Bering, 2 He (lex, M. & Gr. 145; In re Ewen, 7 Mise. (N. Y.), §§ 619, 624; Minter v. Wraith, 13 Sim. 52, 62; lewis, Perpetuities, 501; Fowler v. Depau, 26 Barb. 224, 237, 238; Robinson v. Fowler Orphan Asylum, 123 U. S'. 703; Seaver v. Fitzgerald, 141 Mass. 401; Fowler v. Ingersoll, 127 N. Y. 472. '</p>

<p>. Appeal from a judgment of the circuit court for Marathon county: Chas. V. Bardeen, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Lincoln county: Chas. Y. Baedeen, Circuit Judge.</p> <p>This was a proceeding to obtain a peremptory writ of mandamus to compel the common council of the city of Tomahawk to cause subscription to be made, on behalf of ■said city, on the books of the said railway company, for ■shares of the capital stock thereof, equal to $9,000, and to pass and enact an ordinance or resolution directing and requiring the mayor and city clerk to sign, seal, and issue on behalf of said city, and deposit in escrow with J. W. Ladd, cashier, etc., as trustee, municipal bonds of said city of Toma-Jiawlc in a like sum, running to the' said railway company as payee, bearing interest at the rate of six per cent, per annum, etc., and directing said Ladd-to deliver said bonds to the relator company upon the finishing and completing of its railroad from said city to a point in section 34, township 35 N., ■of range 8 E., and^ the passage of cars over the same on or before December 1, 1895, upon a contemporaneous delivery to said city of such certificates of shares of the capital stock ■of said railway company; and, further, that said common council, prior thereto, enact an ordinance or resolution directing an annual levy of taxes in said city, in addition to all ■other taxes, suffi cient to pay the interest annually growing due on said bonds, and also to pay and discharge the principal thereof by the time the same shall be due, according to their terms. A return was made to the alternative writ, and the issue was tried before the court, upon which there was a finding of facts, not excepted to, and, as a conclusion ■of law, that the relator had no right to the relief asked. Judgment was given dismissing the proceeding, with costs, from which, when perfected, the relator appealed.</p> <p>The relator founds its right to relief upon proceedings under the general law in relation to issuing corporate bonds for the purpose of paying for an authorized subscription to the stock of the railroad company. R. S. sec. 942, and following sections. The relator submitted a proposition to the ■clerk of the city, pursuant to sec. 945, which was filed October 13, 1894. The formalities required by sec. 946 were observed, and December 17, 1894, the relator filed with the common council a petition, signed by the requisite number of resident taxpayers. At the time of the commencement of the present proceedings, the relator had commenced, and during their pendency had seasonably completed, the road. On the 21st day of January, 1896, the relator requested the common council to cause subscription to be made for stock to fulfill the contract so made, and to execute and issue the bonds, etc., in order to carry it out, and tendered full performance of such contract on its part. Defendant neglected and refused to issue the bonds, and assigned as reasons for so doing: First, because such bonds could not be lawfully issued, under the charter of the city of Tomahawk, incorporated March 25,1891 (ch. 58, Laws of 1891); second, because, with the existing indebtedness of the city, the proposed bond issue would make such indebtedness exceed the constitutional five per cent, limit; third, because the law authorizing the issue of the bonds is unconstitutional.</p> <p>It was found by the court:</p> <p>(5) That the assessed valuation of the taxable property of the city for the year 1894, fixed by the board of review of the city, was the sum of $444,549.50, and that the value of the taxable property of said city, as fixed and determined by the county board of Lincoln county, at its meeting November 15, 1894, pursuant to sec. 1073, R. S., was $485,545.</p> <p>(6) That on the 12th of November, 1891, the city issued its municipal bonds, known as “ waterworks bonds,” in the sum of $15,500, bearing interest at the rate of six per cent, per annum, which were purchased and held by the state of Wisconsin at their par value. That there was unpaid on said bonds, between October 13 and December 17, 1894, the sum of $12,500, principal, and interest thereon at the rate aforesaid from November 12, 1893; and that $1,500 of the principal and one year’s interest on the total unpaid principal became due November 12,1894. That December 3,1894, the common council made the following tax levies, among others, for the then ensuing year: Waterworks bonds, $1,500; interest on the same, $660; bridge tax, $1,200; incidentals, $2,000; school fund for all purposes, $8,996.50; borrowed money, $2,500. That said taxes were collected after December 17,1894, and the said sum of $1,500 above mentioned, and $660 for interest on the same, was paid to the state treasurer in February, 1895, and a further payment on the said bonds of $1,500 principal, and annual interest for the year ending November 12, 1895, was made on the day last named.</p> <p>(7) That the board of school directors of the town of Eock Falls, Lincoln county, borrowed from the state, May 17,1889, $6,665, to be repaid in annual instalments of $666.50 each, payable February 1st of each year, with interest at six per eent. per annum; and that December 17,1894, there was unpaid on said indebtedness the sum of $2,666 of principal, with interest from May 17, 1894, and no more; and that $666.50 of principal and one year’s interest became due February 1, 1895, prior to the commencement of this action.That, by request of the officers or agents of the board of school directors of Eock Falls, the county clerk of Lincoln ■county each year certified to the city clerk of the city of Tomahawk (the territory of which was taken from the town ■of Eock Falls) the amount of the state tax levied by the state ■of Wisconsin in the years 1892,1893, and 1894, and certified by the secretary of state to the said count}'- clerk, to pay the instalments of said debt and interest which became due February 1, 1893, February 1, 1894, and February 1, 1895, and taxes had been levied on the taxable property of the city of Tomahawk for the purpose of paying a proportion of said indebtedness. These, with other facts, were relied on as tending to show the assumption of a certain proportion of said debt by said city.</p> <p>(8) That on November 23, 1894, the city borrowed of W. H. and J. W. Bradley $2,500, to be repaid with interest •at seven per cent, within ninety days, and a promissory note therefor had been given by the proper authorities of the city, and the item of $2,500 for borrowed money, in the tax levy already mentioned, was for the purpose of repaying said loan, which in fact was paid February 21, 1895.</p> <p>(9) That on the 28th of November, 1894, the city was indebted to the Nice Biver Lumber Company in the sum of $175, for lumber to be used by the said city in repairing its streets, but this bill was paid January 21,1895, and the city had at all times sufficient funds in its possession to pay the same.</p> <p>(10) That on December 3,1894, the common council levied on the taxable property of the city, for state and county taxes, the amount of $5,420.91, which was collected and paid to the county treasurer of Lincoln county in March and April, 1895.</p> <p>(11) That in December, 1894, and prior to the 17th day of said month, the city had entered into a contract with S. M. Hewitt & Co. and the town of Bock Falls to build a bridge across the Wisconsin river, between the city of Tomahcmls and the said town of Bock Falls, and that the city should pay for building said bridge, as its share, the sum of $1,200. That Hewitt & Co. entered upon the performance of said contract prior to the 17th day of December, and completed the same prior to the commencement of this proceeding; and the city paid said sum to Hewitt & Co., in February, 1895, from a tax levy for the payment of that sum December 3, 1894. *</p> <p>(12) That the city had entered into two contracts with one Garland for the extension of the waterworks system of the city, one made July 23, 1894, and the other September 25th of the same year; and that they were performed about the 11th day of December, 1894. That on the 17th of December, 1894, prior to the filing of the petition signed by resident taxpayers, the city paid to said Garland the balance due him under said contracts, and had at all times on hand funds available for that purpose, sufficient to pay all amounts to accrue to bim under said contracts as the same became due.</p> <p>(13) That on December 11, 1894, the common council appropriated, out of funds then in the treasury, the sum of $400 for the erection of a pesthouse; and on December 29, 1894, city orders to the amount of $400 were issued to certain contractors who had been employed by said committee to construct said pesthouse, said contractors having commenced work on the same, December 14, 1894.</p> <p>(14) That in the summer of 1894, one Sykes prepared plans and specifications for waterworks extension, for which he filed a bill for $64, which was disputed, but it was compromised January 1, 1895, and paid at the sum of $50 ; but the city had at all times on hand sufiicient funds available to pay such demand.</p> <p>(15) That prior to the 16th of November, 1894, the city contracted for the services of certain teachers in the city schools, by which they were to work at a stated price per month, the contract being good from month to month, and for no greater period; and under said contracts there became due to the teachers, December 21st, wages for the month ending on said day in the aggregate of $620, and on the same day said sums were paid to them by said city; the amount earned up to the 17th day of said month being $513.39. All the wages of teachers prior to said month had been paid as the same became due from month to month, there having been sufiicient money in the treasury applicable to that purpose to pay them as the same became due.</p> <p>It was further found that there had not been any vote of the electors or resident taxpayers of the city for the proposition to grant aid to the relator for the purposes mentioned in the petition, nor any vote whatever to issue bonds or subscribe for stock of the relator for that purpose, except as stated in said petition and acceptance by the taxpayers; that the common council never voted to accept said proposition or subscribe for the capital stock of the relator, nor did it ever in any manner “ authorize or direct the issue of bonds to the relator, in any sum whatever, for any purpose, or for the creation of any indebtedness against the city, by reason of the proceedings had and taken by the relator and the resident taxpayers, as before stated.”</p> <p>They contended, inter alia, that a charter or special act passed subsequent to a general law repeals the latter so far as it is in conflict or inconsistent with it. Dillon, l\Iun. Oorp. (4th ed.), §88; 23 Am. & Eng. Ency. of Law, 422; Id. 430, and cases cited in note 4; Isham v. Bannington Iron Co. 19 Yt. 240; State v. Ciarle, 14 Am. Rep. 471; State v. Be Bar, 58 Mo. 395; $tate v. Binder, 38 id. 451; Palmer v. State, 2 Oreg. 66; Tierney v. Bodge, 9 Minn. 166; Richardson v. Sheldon, 1 Pin. 624; Titcomb v. Union F. de M. Ins. Co. 8 Mass. 326; Si. Johnsbury v. Thompson, 59 Am. Rep. 731; Excelsior Petroleum Co. v. Lacey, 63 N. T. 422; In re Snell, 58 Yt. 207; Van Benburgh v. Greenbush, 66 N. Y. 1; Gowen v. Ha/tiey, 6 0.0. A. 190; State v. Stoll, 17 Wall. 425. The legislative power in municipalities cannot be delegated to any other authority. It must be exercised by the municipality, either through the action of the whole body of electors, or through officers representing them. Slinger v. Henneman, 38 Wis. 504; State ex rel. Att’y Gen. v. O’Neill, 24 id. 149; Post v. PulasM Co. 49 Fed. Rep. 628;- Mills v. Charleton, 29 Wis. 400; People ex rel. McLean v. Flagg, 11 Am. L. Reg. (N. S.), 80, note; People ex rel. McCagg v. Chicago, 51 Ill. 17, 2 Am. Rep. 278; People ex rel. Board of Parle Commhrs v. Common Council of Bet/roit, 28 Mich. 228, 15 Am. Rep. 202; People ex rel. B., W. <& P. R. Co. v. Batchellor, 53 N. Y. 128, 13 Am. Rep. 480; Atkins v. Rcmdolph, 31 Yt. 226'; Harrington v. Plainview. 27 Minn. 224; PlaÁnmew v. W. P. Go. 36 id. 505.</p>

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

<p> Appeal: Preponderance of evidence. </p> <p>Findings of the trial court cannot be disturbed unless they are clearly against the preponderance of the evidence.</p>

<p>Appeal from, a judgment of the circuit court for ’Wal-worth county: Eeank FL Fisii, Circuit Judge.</p> <p>This is an action to restrain the defendants from in any way or manner drawing down or lowering the water in Lake Beulah, so called, and is brought by a large number of riparian proprietors on and along the waters of said lake against the owners and lessee of a certain dam at or near the outlet,, whereby the waters of the lake were raised to a sufficient level to create a water power for milling purposes. Upon a trial of the issues joined the following facts were found, in substance:</p> <p>Lake Beulah, as it now exists, originally consisted of two meandered lakes, which were separated by a strip of marsh about eighty rods wide, through which ran a small stream. The outlet of the more northerly of the lakes was by a small stream called Beulah river, which runs northerly and then easterly until it empties into Mukwanago creek, and said creek runs into Fox river. In 1838 a dam was built across the outlet of said lake at about the point where it left the lake, and the waters of the lake were raised a few feet, creating power for a saw-mill erected at the dam. After 1846, and before 1852, the original outlet was closed by an embankment, and has ever since so remained, and an artificial out•let to said lakes was created, at which point another dam was created, raising the waters in said lake to the height of six feet above their natural level, and eighteen inches higher than by the former dam, creating a body of water known as Mill lake, and a new and artificial outlet for the said lakes,, so that their waters, after passing over such dam, flowed by a new channel into said Beulah river, and in consequence of such dam the waters of the said two lakes were so raised as to flood to a considerable depth the marsh land formerly separating them, and making of them one body of water upwards of three miles in length, and varying in width from a quarter of a mile to one mile and a quarter, with an area of about 900 acres. All these changes were made by Ball & Mower, the remote grantors of H. A. Youmans, under and through whom the defendants claim their rights and interests; and Ball & Mower built upon a site near said dam a grist mill, which was used and operated by the power thus provided until it was destroyed by fire in 1876. The owners-of the said dam and mill site at ail times thereafter until shortly before the commencement of this action maintained the level of the water in said lakes at the point to which it was raised by said dam, save only as it was raised by freshets or unusual rains, or was lowered, as hereinafter stated, by draft of water through the said dam for use at said mill.</p> <p>By the construction and maintenance of said dam and such consequent raising of the level of waters in said lakes, portions of the lands owned by certain of the plaintiffs and the-grantors of certain others of them were flowed and submerged by such dam owners continuously, adversely, and uninterruptedly, and notoriously, exclusively of any other right, under claim of right for more than forty years, and at all times during that period the said level to which the waters were so raised by said dam was substantially and constantly maintained; so that said Youmans and his said grantors and his heirs and devisees acquired a right by prescription to so flow said lands, both as against the owners-of lands bordering oh said lakes and as against riparian owners below said lands. One effect of the construction of said artificial outlet, and the diversion thereto of the natural flow of the waters of said lakes, and the construction and maintenance of said dam and embankment, was to deepen the wraters of the lakes, and set said waters up and back against the hard and higher banks, and to make said lakes navigable for row boats, small sail boats, and steam launches, and to make the banks eligible and desirable sites for summer cottages and summer resorts, and to make said lakes a desirable place for fishing, boating, and recreation, and to make the margin of the lake touch the grassy banks and submerge the boggy and marshy shores, as they before existed, and to render the banks readily accessible by small row and pleasure boats.</p> <p>About the year 1888, and from time to time thereafter, sundry of the plaintiffs, relying upon said conditions and the level of the lake as then existing and as having so uniformly existed for more than forty years, built summer homes for themselves and families, or summer resorts for recreation, and purchased divers lots and parcels of land fronting and bounded on said lakes for that purpose, and made divers and sundry valuable improvements on said lots to that end, as did many other persons. Certain other plaintiffs named owned lots and lands bounded by said lakes, and had owned the same from an early day. Said lands, for agricultural purposes, were worth not more than $50 per acre, but for the purposes aforesaid, with the level of said lakes as thus maintained, were worth from $1,000 to $2,000 per acre.</p> <p>The dam belonging to the defendants Yovmums, Haight, and West consists of an embankment of earth, with two openings, one for a flume and the other for a waste weir, and are planked on the bottom and sides, and after the destruction of the mill, and until a short time before the action was brought, were kept closed by bulkheads, backed up with gravel; and after the destruction of the mill in 1876 the power created by the dam had not been used. The defendant John Uowitt is, and for many years has been, the owner of a grist mill at Mukwanago, upon a stream into which said Beulah river empties, about five miles below said dam, which is, and for forty years past has been, driven by water power created by a dam across the said stream; and said Uowitt, September 16,1891, took from EL A. Youmans, then the owner of the dam and mill site at the foot of said lakes, a lease of the water power and water rights there created, and which still remained in force, and by it he was to expend a certain sum annually on the dam, flumes, and weirs of said water power, and was to do certain other work thereon.</p> <p>If the bulkheads were to be removed, and the water allowed to run freely through said dam, the level of the water in Beulah lake would be drawn down to a point over three feet below the lowest point to which the water was drawn in the operation of the mill formerly there maintained ; and, if the dam should be removed, the said waters would fall to a point four feet further. The lowest point to which the waters were drawn or could be drawn consistent with the operation of said mill, was a point thirty-three inches above the floor of the flume where said bulkhead crosses the same in the western opening in said dam; and the waters of the lake were continuously maintained at that point, until the defendants took out the bulkheads, a short time before this action was commenced, and drew down the waters of the lake to the level of the floor of said flume, to the great injury of the plaintiffs. Lowering the waters of said lake will substantially impair the value and availability of the parcels and lots of land owned by the plaintiffs and bounded on the lake; the waters will recede from its banks, and in almost all places strips of slimy, boggy, and marshy shore will be uncovered, preventing access by boats to the plaintiffs’ piers, and will substantially impair, and well-nigh destroy, the beauty of the lake, and its adaptation and avail-abilitjr for summer residences and summer resorts, and make the vicinity unhealtkful, and render the plaintiffs’ improvements practically valueless for the purposes for which they were constructed.</p> <p>Shortly before the action was commenced, said bulkheads were replaced to the height of two feet or more, and so that the waters of the lake rose and overflowed the bulkheads.</p> <p>The plaintiffs asked judgment that the defendants, their agents, etc., be perpetually restrained from in any way raising, taking out, or removing from the said dam any of the bulkheads or waste or flash boards in or on the same, and from in any way throwing down, lowering, or opening the dam, and from in any way interfering with or drawing down the water in Lake Beulah. The defendants insisted upon their right to use and withdraw the waters of said lakes according to their needs and discretion. Judgment was given perpetually restraining the defendants, their agents, etc., from doing any of the acts mentioned so as to permit or allow the flow of water from the lake at a level below the point named, thirty-three inches above the floor in the flume, etc., and for costs; from which the defendants appealed.</p>

Eish, Circuit Judge. The action is to foreclose a real-estate mortgage. At the time of the rendition of the judgment of foreclosure and sale, a part only of the mortgage debt had become due and payable. The judgment directed the mortgaged premises to be sold, and the proceeds of the sale to be applied to the payment of so much of the mortgage debt as should be due at the time of the sale, and the surplus deposited with the clerk of the court.

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. JohNsoN, Circuit Judge.</p> <p>Piaintiff owned sixty feet frontage on "Wisconsin street; of lot 7, block 22, in the Seventh ward of the city of Milwaukee, and this action was brought to set aside a special assessment thereon for laying an asphalt pavement in front thereof.</p> <p>The complaint sets forth, among other things, that the proceedings to charge the property with such special assessment were had in 1894, under ch. 184, Laws of 1874, being the charter of the city of Milwaukee, and the acts amenda-tory thereof; that the work was done by the defendant the Western Paving c& 8v,pply Company under contract duly entered into with the city of Milwaukee; that on completion of such contract there was issued to such company a certificate calling for $320.95 as the amount chargeable to plaintiff’s property, assessed thereon as and for work done under such paving contract. The allegations of fact relied upon to avoid the special tax and certificate issued therefor are to the effect that the contract price for the work which was charged to the abutting property included keeping the pavement in repair for five years after its completion, setting limestone protecting curbing at the intersection of unpaved streets and alleys and at such other places as might be directed by the city engineer, and the expense of elevating the cross walks for the width of eight feet at the intersection of streets and alleys, and putting gutters along the same; that the specifications filed required such work to be done as a part of the paving improvement; and that by reason of such requirement the charges against plaintiff’s property were greatly increased.over and above the amount legally chargeable thereto. The complaint alleges that plaintiff refused to pay the amount called for by the special tax certificate, whereupon such tax was duly extended on the tax roll of the city for the year 1894 against plaintiff’s property, and that within the time required by law plaintiff paid all taxes on her property for such year, except such special tax. The relief prayed for was that the said special assessment, and the certificate referred to, be declared void; that the defendant city and its treasurer be restrained from selling plaintiff’s property for the payment of said special assessment, or any part thereof; and that she recover of the defendants her costs and disbursements.</p> <p>To the complaint defendants answered separately, setting .up the provisions of the paving contract in regard to keeping the pavement in repair for the period of five years, and alleging that such provision did not increase the bid price for doing the work to exceed five per cent, of the total cost. On the 29th day of June, Í896, plaintiff moved the court for an order striking out such answers as frivolous, and for judgment. Such proceedings were thereafter duly had that such motion was granted, and judgment thereupon entered in accordance with the prayer of the complaint. From such judgment the defendant the Western Paving & Sujoply Gom/pcmvy appealed.</p>

<p> Tax certificates: Special assessments: Limitations: Joinder of legal and illegal items: Commencement of action. </p> <p>1. Sec. 1210h, S. & B. Ann. Stats, (limiting to one year from the date of the sale the time within which proceedings must be commenced to set aside any sale of lands for the nonpayment of taxes, or to-cancel any tax certificate, or to restrain the issuing of any tax certificate or tax deed, for any error or defect going to the validity of the assessment and affecting the groundwork of the tax), applies to sales for street-improvement assessments and certificates issued thereon.</p> <p>S. The joinder of taxes, void for defects going to the validity of the assessment and affecting the groundwork thereof, with other taxes which a court of equity will require paid as terms of granting relief against the illegal taxes, will not prevent the running of the statute of limitations as to such illegal tax.</p> <p>'3. An action to set aside an illegal special assessment for street improvements cannot be deemed commenced against the owner of the certificate of the board of public works therefor, to whom it had been transferred by the contractor, so as to stop the running >of the statute of limitations as to the former, until the summons ns actually served upon him, although it had been commenced against the city and the contractor before the expiration of the period of limitation.</p>

N. Austin, Judge. On the 11th of August, 1892, John Henry Freckmann joined a subordinate council of the Eoyal Arcanum, and received a benefit certificate for the sum of $1,500, payable in case of his death to his wife (plaintiff here), provided “ that said member is in good standing in this order at the time of his death.” One of the by-laws of the defendant, which became a part of the contract, is as follows: “ Sec. 473.

H. JohNsoN, Circuit Judge. They contended, inter alia, that the rule “ caveat empior ” applies to the purchase •of a tax certificate at a tax sale. The selling power does not warrant the validity of the title conferred by the sale. The purchaser merely volunteers to pay the tax, expecting to profit by the high ráte of interest the law allows him to exact from the owner of the land upon redemption.

N. Austih, Judge. This was an action, brought by Peter McG-eoch against the defendant in justice’s court, for the conversion of a horse, the property of said McGeoch, alleged to have been stolen from him, and that it afterwards came to the defendant’s ¡possession, •who held the same, an’d claimed it as his’ own property, and, upon demand therefor, refused to give it up. 'The defendant answered by a general denial, and alleged that he purchased and paid for the horse at a…

N. Austin, Judge. Action for personal injury. The complaint alleges that the plaintiff is an infant under the age of twenty-one years,— at the time of the injuries complained of, of the age of seventeen years; that plaintiff entered one of defendant’s passenger trains at the city of Milwaukee for the purpose of taking-passage thereon to the station of Jackson, in this state; that he failed to get a ticket before entering upon the train, because he Avas late at the train;…

<p>Wells v. Western Paving & Supply Go., ante, p. 116, followed.</p>

<p>Wells v. Western Paving & Supply Qo., ante, p. 116, followed.</p>

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

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

N. Austin, Judge. On the 29th day of April, 1893, Gasper M. Sanger executed to plaintiffs a mortgage upon certain real estate to secure the payment of $22,500 at the times and with the interest therein provided for. On the 25th day of July, 1893, the mortgagor, by deed with full covenants except as to such mortgage, conveyed such real estate to Emil and Alfred T. Sanger.

Akpeal from a judgment of the superior court of Milwaukee county: E. N. AustiN, Judge. The facts are stated in the opinion. To the point that the signature to the jurat is essential to make a valid affidavit, they cited Roystorís Appeal, 53 Wis. 612, 623; Kidder v. Fay, 60 id. 218; MeDermaid v. Russell, 41 III. 489; Westerfield v. Bried, 26 N. J. Eq. 357, 359; Stater. Ore.en, 15 N. J. Law, 88, 90; Alford v. McCormac, 90 N. 0.151; Morris v. State, 2 Tex.

H. JohNsoN, Circuit Judge. This is an action for the abuse of process. The complaint, after alleging the copartnership of the plaintiffs, and the corporate character of the defendant the German American JBanJc, alleges that on the 81st of August, 1895, the plaintiffs executed to the bank their judgment note in the sum of $5,000, payable on demand with interest.

H. Johnson, Circuit Judge. . This was an application by the assignee for the benefit of the creditors of Erederick T. Day, on petition, for an order setting aside certain transfers and conveyances made by Day, before his assignment, to the Plankinton Bank, as security for debts due from him to the bank. Day was the vice president and general manager of the bank. lie carried on a large outside business of his own.

H. Johnson, Circuit Judge. Plaintiff’s intestate, Alexander Innes, was an employee of defendant, to assist in attending some steam boilers used to generate steam for power to operate its water pumps. The boilers were put in place and installed for defendant by the E. P. Allis Company, a few months before the injury hereafter mentioned.

0. Ludwig, Judge. Tbe facts are stated in tbe opinion. To the point that tbe appearance of the defendant in the principal action conferred jurisdiction upon the court and entitled it to proceed in the garnishment action, they cited Youngv. Boss, 31 N. II. 201; Lawrence v. Smith, 46 id. 533; Paries v. Adams, 113 N. 0. 473; Peed v. Fletcher, 24 Neb. 435.

N. Austin, Judge. This is an action in equity to set aside a sale under a foreclosure judgment as a cloud upon title to real estate, and to have an accounting for rents and profits. The answer set up adverse possession and laches. The action was tried before a referee, whose report was confirmed by the court.

Appeals from a judgment of the circuit court for Milwaukee county: D. H. JohNsoN, Circuit Judge. Held: in different amounts, by the various defendants named therein (among others, $5,000 by Frcmla G. Bigelow, JET. A. J. Upham, and Caroline K James, as executors of the last will and testament of 'Charles J. Cary, deceased, and $3,000 by Hugh Ryan and John B. Le Saubnier, as executors of the last will and testament of William.

N. AustiN, Judge. Action for damages for breach of a contract of employment. On or about May 1, 1895, the parties to this action entered into a contract whereby it was agreed that the plaintiff should render his services to the defendant company, as manager of its business, at the city of Milwaukee, for the term of one year, for which services he was to receive a salary of $2,500.

V. BaedeeN, Judge. The plaintiff brought this action to foreclose a mortgage for $15,084.01, on certain lots in block 11, in the^coutinuation of Layton Park, etc., in the county of Milwaukee, upon which lots was a tack and nail factory, equipped with an engine and boiler, shafting, pulleys, and belting, and tack and nail machines, bolted to the timbers of the building, and. connected with said shafting by belts; the whole being used as a factory for the manufacture of tacks…

H. Johnson, Circuit Judge. The facts are fully stated in the opinion. To the point that the mortgage was the prior lien even though not recorded until after the mechanics’ liens had attached, they cited Rose v. Munie, 4 Cal. 173; Miller v. Stoddwrd, 50 M!inn. 272 ; 8. O. 54 id. 486; Fletcher v. Kelly, 88 Iowa, 475; Nashua Trust Oo. v. W. 8. Fdwards Mfg. Co. 68 N. W. Bep. 587.

0. Ludwig, Judge. This is an action in equity to enjoin the removal of certain machinery from a building owned by plaintiff in the city of Milwaukee, on the ground that the machinery and other articles in question are fixtures. The machinery in question consists, among other things, of certain candy furnaces and stoves, steam coils, shafting and pulleys, shelving- and counters, one steam engine and two steam boilers connecting therewith; also, a water meter.

H. Jonsrsorr, Circuit Judge. Action to rescind a transaction whereby plaintiff was induced by fraudulent representations made by defendants Warner, Warner, and Wainbold to join with them in the formation of a corporation to purchase certain land for $45,000, said defendants pretending that said land was to be bought of an outside party, who-was the owner, and that all who united in the scheme would share in proportion to their respective subscriptions in the actual cost of…

<p>Franey v. Warner, ante, p. 222, followed.</p>

N. Austot, Judge. Action was commenced by plaintiff against one Joseph Scheer, as principal, and the Cream City Brewing Company, as surety, for unpaid rent upon what is known as the Hotel Eagle, in the city of Milwaukee. The cause was tried by a referee.

<p> Railroads: Injuries to passenger viewing wreclc: Explosion ofoiltanlc: Contributory negligence: Inconsistent special verdict: Setting aside findings: Judgment: Appeal. </p> <p>1. A passenger on a railway train which has been stopped by burning tanks of oil on the track, who, from mere motives of curiosity and pleasure, leaves a place designated as a temporary station at a safe distance from the fire, and goes within eighty-five feet of the fire, and remains there for some time, thereby exposing himself to obvious danger, is guilty of such contributory negligence as will prevent a recovery for injuries caused by an explosion of one of the tanks.</p> <p>2. Findings of the special verdict in such a case that if plaintiff had remained at the temporary station he would not have been seriously injured; that he unnecessarily and from motives of curiosity and pleasure approached much nearer the burning cars; and that his injuries were caused by reason of his so going nearer thereto,— are held to be inconsistent with other findings that the defendant in the exercise of ordinary prudence should have known of the plaintiff’s position in time to warn him of the danger from the burning car; that it ought to have anticipated that plaintiff would go nearer the car and thus incur such danger; that the warning given plaintiff was negligently and insufficiently given; that plaintiff was not guilty of contributory negligence; that defendant did not exercise reasonable care and prudence in designating a place where plaintiff might take the train; and that its officers and agents were guilty of negligence which was the proximate cause of plaintiff’s injuries. No judgment should therefore have been given upon the verdict.</p> <p>3. The relation of carrier and passenger is held not to have ceased to exist, although the actual transit had been interrupted for the time being by the wreck on the track and plaintiff had voluntarily left the temporary station, to which he had been transferred to await another train, for the purpose of obtaining a nearer view of the wreck.</p> <p>4. The danger of an explosion of the burning tank of oil was not hidden or concealed so as to render the railroad company liable for injuries occasioned thereby to an adult who had approached the wreck from motives of curiosity, without an invitation, express or implied.</p> <p>5. The railroad company and its agents were not bound to restrain by physical force a passenger of ordinary intelligence in order to keep him out of such a danger, which was as obvious to him as to them.</p> <p>6. The railroad company in such case was bound to the exercise of only ordinary care and prudence to protect the plaintiff from danger, in view of the situation and existing circumstances. It was therefore erroneous to instruct the jury “that it is the duty of the carrier to exercise extraordinary vigilance, aided by the highest skill, and to exercise the highest degree of care, to prevent the interposition of any obstacle to expose the plaintiff to danger while waiting for the train to arrive:” and the error was not cured by a subsequent correct statement of the degree of care required.</p> <p>7. The objection that certain findings of a special verdict should have been set aside as contrary to the undisputed evidence, and judgment given on the other findings and such evidence, is not. available on appeal unless a motion to that effect was first made in the trial court.</p> <p>For a note on the rights and liabilities of the parties when a passenger temporarily leaves the vehicle before completion of his journey, see Finnegan v. O., St. P., M. <& O. B. Co. (48 Minn. 378) in 15 L. B. A. 399.— Eep.</p>

<p> Gambling: Municipal ordinances: Penalty for offense punishable also-under statute: Constitutional law: Searches and seizures: Beturn of search warrant: Detention of person arrested: “Due process of law.” </p> <p>1. An action by a city to recover a penalty for the violation of a municipal ordinance prohibiting an act which is a crime or misdemeanor and punishable at common law or by statute, and prescribing a penalty for its violation by fine with imprisonment on default of payment, is gttasi-criminal.</p> <p>2. Although an act is a penal offense under the laws of the state, further penalties for its commission may, under proper legislative authority, be imposed by municipal by-laws or ordinances; and the enforcement of the one does not preclude the enforcement of the other.</p> <p>3. A municipal ordinance providing that if any person shall make oath before the police court that “he suspects and believes, or has-good reason to suspect and believe, that any house or other building, room or place is used as and for a gaming house, room or place, for the purpose of gambling . . . and that persons resort thereto for that purpose,” the court, “whether the names of the persons last mentioned are known to the complainant or not,” shall issue a warrant commanding the officer executing it “ to enter such house, building, room or place, and to arrest the keeper thereof and all persons found gambling,” and “ all persons there found whether playing, gaming, or otherwise,” and to take possession of all gambling implements and devices, etc.— is held, in respect to the keeper of such a house, not to be in violation of sec. 11, art. I, Const., forbidding unreasonable searches and seizures and . providing that no warrant shall issue but upon probable cause and particularly describing the place to be searched and the persons or things to be seized.</p> <p>4. A provision in such ordinance that it shall be sufficient to sustain a conviction of a person charged with being the keeper of a gambling house to show that when arrested he was m charge of the building and that gambling implements were at that time found therein, is an independent one and, if void, does not invalidate the other portions of the ordinance.</p> <p>5. The return of a search warrant which is the basis of the prosecution under a municipal ordinance of a person arrested under the warrant as the keeper of a gambling house, must state with clearness and certainty the facts authorizing the arrest under the ordinance.</p> <p>6. A person arrested while violating a city ordinance against gambling, under a search warrant not naming him and issued upon an affidavit making no direct charge against him, cannot, after being brought before the court, be detained on such warrant alone, pending an adjournment of the case for trial; but a complaint in due form should be lodged against him and process thereon issued for his detention.</p>

<p>Appeal, from a judgment of the circuit court for Milwaukee county: D. IT. JohNsou, Circuit Judge.</p> <p>This was an action to enforce a lien for material and labor furnished by plaintiff as principal contractor. The complaint was in the usual form. The amount claimed to be' due was $Y46.42. The answer, by proper allegations* set forth that the alleged indebtedness accrued under a contract to build and complete a building according to certain plans and specifications, within a certain time, for a stipulated price. It alleged nonperformance of the contract, put in issue the amount claimed to be due, and counterclaimed for damages.</p> <p>On the trial the defendant Franjo G. Keller, with whom the contract was made, and who was the owner of the building sought to be charged with the lien, requested submission to the jury of questions covering all the issues in the case. Pursuant thereto the court submitted a question covering undisputed matters, and the following: “(2) Did the plaintiff furnish materials and perform work and labor in and about the erection and construction of said building, so that tbe same was substantially finished before the filing of said claim for lién ? (3) Did the plaintiff, at the request of the defendant Franli G. Keller, furnish extra materials and furnish extra work in the erection and construction of said building? (4) If you answer the last question, ‘Yes,’ what is tbe reasonable value of such extra work and materials? (5) Did the plaintiff fail to do all the work and furnish all the material required by said contract in the manner and of the quality required by the contract,— that is to say, was some of the work done and materials furnished defective and not up to the requirements of the contract? (6) If you answer the last interrogatory to the effect that some of-the work was defective, in what sum do you assess the defendant’s damages by reason of such defective work and materials, including the necessary time, if any, during which he was deprived of the use of the building while endeavoring to have said defects, or some of them, remedied at a reasonable expense? The jury found in the affirmative as to the first, second, third, and fifth questions, found the value of extra work and material at $63.42, and the damages for nonperformance of the contract at $275.</p> <p>The court made findings in accordance with the verdict of the jury. Judgment was entered accordingly, from which this appeal wms taken by defendants.</p>

<p> Master and servant: Injury to minor: Assumption of rislc: Court and jury: Unexpected movement of machine: Presumption of negligence from happening of accident: Freedom of machine from discoverable defects: Evidence. </p> <p>1. In an action to recover for injuries received by a boy fifteen years old while engaged in operating a machine in defendant’s factory about which he had’had more or less experience, the question whether the plaintiff assumed the risks arising from defects in the machine, by continuing in the employment knowing of such defects, is held to have been for the jury.</p> <p>2. Per Maeshall, Pinney, and Newman, JJ. Although, in an action for personal injuries alleged to have been caused by the unex-peoted revolution of a stamping machine, operated by touching a pedal which engaged, by means of a clutch, a wheel on a involving shaft, the testimony of the plaintiff that the machine made such an unexpected revolution the day before, and also at the time of, the accident, and the testimony of another witness that he subsequently ¡=¡aw it do the same thing when there was no one near it, might raise a presumption of negligence as matter of law, such presumption would be overcome by conclusive proof that the machine was free from all discoverable defects.</p>

<p>Appeal from a judgment of the circuit court for G-reen Lake county: Geo. ■ W. BuRNell, Circuit Judge.</p> <p>The action is in equity to restrain trespass to lands. The plaintiff claims to be the owner of certain lands in the county of Green Lake, which border upon a shallow body of water or marsh popularly known as “ Mud Lake.” It claims, by virtue of such riparian ownership, to be the owner of Mud Lake itself. The lands under Mud Lake are valuable only for the privilege which the lake affords for fishing and the hunting of wild fowl, and for such exercise and recreation. The lake is shallow, so that the lands are in the nature of marsh or swamp lands. In the summer time they produce large crops of wild rice -and other vegetation, making a natural resort for wild fowl for a nesting and feeding ground. The plaintiff desired to keep this as a private preserve for a shooting ground and place of recreation for its members and guests. The defendants had at various times, for several years, hunted wild duck and other waterfowl upon this lake, and asserted the right and purpose of continuing to do so in the future. The action was brought to restrain them from doing so.</p> <p>The question controverted is the title to the lands under Mud Lake,— whether the plaintiff owns them by virtue of riparian ownership, or whether the title is in the public. This depends on whether Mud Lake is a watercourse or a meandered lake. It varies in width from thirty-five rods to sixty-five rods, and is about three miles in length. In spring and fall and after heavy rains, the whole surface is covered with water. In summer much of the water disappears, leaving some considerable expanses of water interspersed with mud, marsh, and bog. In the places which are covered by water, rushes and wild rice grow luxuriantly. There are small openings of clear water, but no regular channel anywhere, except at a place called the “Narrows,” below the point where the alleged trespasses were committed. In ordinary stages of water it was navigable only by small craft, like canoes or hunting skiffs, propelled by paddles or push ■ poles. What is called “ Mud Lake ” is formed by the expansion or dispersion of the waters of a small stream called “ Grand Eiver.” After the Grand river enters into and becomes Mud Lake, it follows no defined channel, but distributes itself through the marsh, and appears again as a stream only at or near the point called the “ Narrows.” Mud Lake is in fact, for the most part, a low, wet marsh, producing a large growth of wild rice and other vegetation, and unnavigable by any natural channel, by any kind of boat, through its entire length, during the greater portion of the year. The lands bordering upon it were meandered by the government surveyors. In the field notes it was referred to as a “ lake ” or “ marsh.”</p> <p>The court found that Mud Lake is a meandered lake, and that the title to the lands under it is in the public and not in the plaintiff, and dismissed the complaint, with costs against the plaintiff. The plaintiff appeals.</p> <p>They contended, inter alia, that the widespread of Grand river at the place where the alleged trespasses were committed is not a lake, but is a stream or watercourse. Case v. Hoffman, 84 "Wis. 438; Spelman v. Portage, 41 id. 144; Hoyt v. Hudson, 27 id. 656; Fryer v. Warne, 29 id. 511; Eulrieh v. Richter, 37 id. 226; Mohr v. Gault, 10 id. 513; Bassett v. Salisbwy Mfg. Co. 43 N. H. 569; Hillilcer v. Coleman, 73 Mich. 170; Rummell v. Lamb, 100 id. 424; Pyle v. Richards, 17 Neb. 180; Morrissey v. C., B. dé Q. R. Co. 38 id. 406; Rigney v. Tacoma L. & W. Co. 26 L. R. A. 425, 9 "Wash. 576; Gould, Waters, §§ 4, 41, 263, 264; 28 Am. & Eng. Ency. of Law, 944-946; West v. Taylor, 16 Oreg. 165; Montgomery v. Loclce, 72 Cal. 75; Macomber v. Godfrey, 108 Mass. 219; Hinlde v. Avery, 88 Iowa, 47; Gillett v. Johnson, 30 Conn. 180; Shields v. Arndt, 4 N. J. Eq. 234; Mitchell v. Bain, 142 Ind. 604; Lambert v. Alcorn, lié Ill. 313; Pech v. Herrington, 109 id. 611; Fuller v. Shedd, 161 id. 462; Potter v. LLovie, 141 Mass. 357; Palmer v. Waddell, 22 Kan. 352; Missouri P. R. Co. <o. Keys, 55 id. 205; Crawford v. Rambo, 44 Ohio St. 279; Byrne v. M. db St. L. R. Co. 38 Minn. 212; Luther v. Winnisimmet Go. 9 Cush. 171; Morrison v. B. <& B. JR. Go. 67 Me. 353. If, however, the widespread is in fact a lake and not a watercourse then the plaintiff had an exclusive right to hunt and fish thereon as an incident to its ownership of the surrounding lands bordering on its waters, the body of water not being navigable in fact. Hardin v. Jordan, 140 U. S. 371; Bristow v. Oormican, 3 App. Cas. 641; Beckman v. ICreamer, 43 111. 447; Freary v. Cooke, 14 Mass. 488; 2 Bl. Comm. 39, 40; 3 Kent, Comm. 409-418; Comm. v. Chapin, 5 Rick. 199; HooJcer v. Oummings, 20 Johns. 90; JDeuterman v. Gainsborg, 9 App. Div. 151; Cobb v. Davenport, 32 N. J. Law, 369; Sterling v. Jackson, 69 Mich. 488; People v.. Silberwood, 67 N. W. Rep. 1087; State v. Shannon, ■ 36 Ohio St. 423; Lembeclc v. Hye, 47 id. 336; Ghisolm v. Gaines, 67 Red. Rep. 285; Gould, Waters, §§ 183, 230; Santa Paula Water Works v. Peralta, 113 Cal. 38; Hew Englmid T. & S. Olub v. Mather, 68 Yt. 338; Boorman v. Sunnuohs, 42 Wis. 233; Bey sen v. Poate, 92 id. 543; Priewe v. Wis. State L. do I. Go. 93 id. 5‘34. The act of trespass threatened by the defendants would result in an irreparable injury to the plaintiff’s property, for the uses and purposes for which it is held, as is shown by the particular allegations of fact made in the complaint and by the testimony offered on the trial. Wilson v. Mineral. Point, 39 Wis. 160; Trustees of German Evang. Gong. v. Hoessli, 13 id. 348; Lxitheran Evangelical Church v. Gristgau, 34 id. 328; Heshlcoro v. Hest, 85 id. 126; Earn Olaire v. Matzke, 86 id. 291; Cause v. Perkins, 3 Jones Eq. 177; 'Powell v. Cheshire, 70 Ga. 357; Mayor, etc. of Frederick v. Groshon, 30 Md. 436, 445; Haines v. Hall, 17 Oreg. 165; Hillman v. Hurley, 82 Ky. 626; Shipley v. Bitter, 7 Md. 408; Puckeite v. Hicks, 39 La. Ann. 901; Crescent Oity L. S. L. do S. H. Go. v. Police Ju/ry, 32 id. 1192; Mooney v. Oooledge, 30 Ark. 640, 642; Bigney v. Tacoma L. do W. Go. 26 L. R. A. 425; Lembeck v. Hye, 47 Ohio St. 336. The fact that the defendants are pecuniarily irresponsible is further ground for the interposition of a court of equity to enjoin trespass. 2 Story, Eq. Jur. § 928; Ilanly v. Waiter-son, 89 W. Va. 214; Oause v. Perldns, 3 Jones Eq. 177; Mus-selman v. Marquis, 1 Bush, 463; Hillman v. Hurley, 82 By. 626; Lembeelc v. Wye, 47 Ohio St. 336; Milan Steam Mills v. Hielcey, 59 N. H. 241; Owens v. Grossett, 105 Ill. 354; Brit-tons Admlr v. Hill, 27 N. J. Eq. 389; Martin v. Davis, 96 Iowa, 718; Wilson v. Hill, 46 N. J. Eq. 367. The injunction should issue in order to prevent a multiplicity of suits. Pride v. Weyenberg, 83 Wis. 59; Musselmam. v. Marquis, 1 Bush, 463; Ellis v. Wren, 84 Ely. 254; Hillman v. Hurley, 82 id. 626; John A. JRoebling Sons’ Go. v. First Wat. Banlc, 30 Fed. Rep. 744; Lerribeclc v. Wye, 47 Ohio St. 336; Mills v. Wew Orleans Seed. Go. 65 Miss. 391; Owens v. Grossett, 105 Ill. 354; Shaffer v. Stull, 32 Neb. 94; Wilson v. Hill, 46 N. J. Eq. 367; 1 High, Injunctions, § 12; 1 Pomeroy, Eq. Jur. § 245; 3 id. § 1357.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. RueNell, Circuit Judge.</p> <p>The defendant owned three lots on the west side of Main street in the city of Oshkosh. On the south side of the lots was an open cellar forty-five feet wide toward the street line, and extending tvest sixty-five feet. North of the collar some distance, and back from the street, was a dwelling house. Back of the cellar was an office used by the defendant, and still further back was a large barn. On the side of the excavation toward the north there was no barrier,. except that the wall extended above the surface of the ground about one foot. The house was occupied by a tenant by the name of Menz, with his family. From the street, north of and parallel with the cellar, and twenty to twenty-six feet from it, was a private driveway extending back to-the barn. Such driveway was about twelve feet wide, and was used in going from the street to the house; also to the office and barn on the premises. Such way was for the use of all persons desiring to call at the office or to visit the Menz family. It was frequently used by the plaintiff before the accident, by invitation of the Menz family.</p> <p>On the day of the accident there was a funeral at the house. Crape was hanging on the door. Plaintiff, pursuant to an invitation, express or implied, in a carriage drawn by one horse, drove up such private way to a point near the house, and was about to alight, when the horse became frightened, presumably by the crape on the door, causing him to back up, turn the buggy towards the cellar, and to continue to back till the vehicle, its occupants, and the horse, were precipitated into the excavation. The horse was so injured as to be worthless, the buggy was considerably damaged, and the plaintiff suffered some personal injuries. She brought this action to recover compensation therefor.</p> <p>At the close of the evidence defendant’s counsel moved for a nonsuit, which was refused. A special verdict was .rendered to the effect that defendant was guilty of negligence which was the proximate cause of the injury; that plaintiff, when injured, was on the premises by invitation, was free from contributory negligence, .and that her damages were $200. Defendant’s counsel moved the court to ■set aside the verdict and for a new trial, which was denied. Both sides then moved for judgment. Defendant’s motion was denied, and plaintiff’s granted. Judgment was thereupon entered in plaintiff’s favor, from which this appeal was taken.</p>

<p> Accident insurance: Classification of rishs: Change of occupation: “Supervising.” </p> <p>1. By the manual for agents of an accident insurance company bakers were divided into two classes, “ baker, proprietor, not working ’’ being in class AA, and “ baker, working shop or driving wagon,” in class C. The home officers, however, were not absolutely bound by such classification, but might modify the same to suit the exigencies of particular cases. The company issued to an applicant, who stated that he was a “ bakery and confectionery proprietor,” “supervising,” and worked for himself, a certificate insuring him as a “bakery and confectionery proprietor ” under class AA. Held, that the company had made an exceptional classification and rated the risk as AA.</p> <p>'2. The acts of the insured in such case in not only indicating how the work should be done but actually taking hold and assisting therein when necessary or convenient would not constitute a substantial change of occupation, since the word “supervising,” as used in the application, means taking part in the work.</p>

<p>Appeal froni a judgment of thfe circuit court for Winnebago county: Geo. W. BuRNbll, Circuit Judge.,</p> <p>This action was brought against the defendants, as receivers of the Wisconsin Central Railroad Company, to recover for injuries to person and property, resulting from a collision ivith one of defendants’ freight trains, at a road crossing a short distance outside of the corporate limits of the. city of Oshkosh, about 6 o’clock in the afternoon of July 17,1895. The negligence alleged was excessive speed and failure to give the statutory signals, which the plaintiff’s evidence tended to establish. At the close of the plaintiff’s case the defendants moved for a nonsuit, which was denied, and, at the close of the- testimony, the defendants moved the court to direct a verdict in their favor. This was also denied. The jury found that the plaintiff was injured, in person and property, by reason of the defendants’ negligence, and that the plaintiff was not guilty of negligence which contributed proximately to the injury. Plaintiff’s damages were assessed ' •at $200. Defendants moved to set aside the verdict and for a new trial, on the ground that the verdict was contrary to the law and the evidence, and for error in refusing to direct a verdict for the defendants. This motion was denied, and the plaintiff had judgment for $200 damages and costs, from which the defendants appealed.</p> <p>The question presented was whether the court erred in refusing to direct a verdict for the defendants, and in denying the motion for a new trial, for the reason that the plaintiff was guilty of contributory negligence. The highway upon which the plaintiff was traveling, with' a horse .attached to a covered peddling wagon, was called Oregon street, and crosses the railroad track at an angle of about .thirty degrees. The south right of way fence, which is thirty-two feet from the track, if projected, would intersect the highway about eighty-five feet from the crossing. A point on the highway 500 feet south of the crossing is 209 feet westerly at right angles from the track. At the time ■of the accident, the field occupying the angle between the track and the highway was planted to corn, and there were nine shade trees along the highway. The track approach-, ing the highway was upon a grade or embankment at the •crossing some two feet above the level of the road, and, at a culvert about 2,500 feet easterly, some twelve feet above, the general field. The highway south of the railroad was substantially level for a long distance. A person standing at any point in the highway, within 500 feet of the crossing, •could see a train on the track at any point within nine-tenths of a mile. The plaintiff testified he could, from such 500-foot point, see the track, the cattle run or culvert, and beyond it the next highway crossing, over 2,000 feet. At a 300-foot point about the same view was to be had. Except for the shade trees and the'corn, there was no ob.struction to vision at any point on the highway; and a man five feet sis inches in height, standing in the highway at the 500-foot point, could see the railroad track over the top of the corn in the field, if six or six and one-half feet tall. The photographs introduced by the defendants, taken, within two days after the accident, show that there was no obstacle to an unobstructed view of the train upon the track, taken from any point on Oregon street, within 262 feet of the railroad crossing, and that the shade trees did not interfere. The fireman could see from the whistling post, 1,320 feet, the horse and wagon approaching the crossing across the corn field, and saw them until the collision.</p> <p>On the day in question, plaintiff and a man named Chase were returning home from a trip in the country, riding in the direction of Oshkosh, on a covered wagon. The cover of the wagon did not extend forward of the seat, and the wagon did not rattle. At Chase’s suggestion, they stopped 500 feet south of the track, looked and listened, proceeded then 200 or 300 feet, and, as a precaution, stopped again, and looked and listened. Ohase looked to the north, and the plaintiff to the south, saw nothing, and proceeded at'a trot to within twenty or thirty feet of the crossing, when plaintiff first heard or saw the train, and the collision followed. After stopping the last time, some 200 or 300 feet from the track, the horse trotted right along till the accident, and neither party looked or listened for the train during the interval. The horse had been raised in a pasture near the railroad, was quiet, would stop when the driver bade him, and there was no trouble driving it with the voice. The evidence was that trains were liable to be running at any time. The day was fine, and not windy, and the wagon was free from rattle. After stopping and listening at the 200-foot point, plaintiff kept all the time his eyes on the horse, and the horse trotted along. As he approached the crossing, the train caught him there, and threw him into the ditch. He said: “I see the train, which was right near up to me. If I jump out, I would jump right on it. At that moment it catched the horse already, and that is all that I know.” He was familiar with this railroad crossing,— had been in the habit of driving there twice a week for twelve years. He testified that he listened, but did not hear anything. Chase sat by his side, and they were talking to each other. After he left the 200-foot point, he did not look again. Chase testified that after they stopped the second time the horse trotted all the time until the collision; that the first he heard of the train was just as they struck the grade to cross the railroad track; he heard a rumbling noise, and saw the engine; that, after the 200-foot stop, there was no other stop for looking, or any other examination for a train from the east. The photographs taken within two days after the accident, and a map made to a scale and measurements, upon which surrounding objects and those between the highway and the track were located, were put in evidence.</p>

W. BubNELl, Circuit Judge. This was an action to foreclose a mechanic’s lien. The amount of materials furnished, and the number of days work performed, were the only facts in issue. The cause was tried by a referee, who found that the labor and materials furnished were less in amount than the sum which had, before the commencement of the action, been paid to the plaintiff therefor.

W. BueNell, Circuit Judge. Defendant corporation was organized under the laws of tbe state of Minnesota, among other things, for the purpose of buying, selling, and dealing in real estate. Its principal place of business, by the articles of organization, was located in the town of Troy, Pipestone county, Minnesota. The business was actually transacted, mostly, at the residence of the president in Milwaukee or Oshkosh, Wisconsin.

<p> Appeal: Order"granting new trial. </p> <p>Under ch. 212, Laws of 1895 (a revision of sec. 8069, R. S., relating to appeals, from which the provision authorizing an appeal from an order when it grants or refuses a new trial was omitted), an order denying a motion for judgment on the verdict and granting a new trial on the ground of errors in the instructions to the jury is not appealable; and the fact that the appeal was taken from that part of the order only denying the motion for judgment'is immaterial.</p>

<p> Mechanics’ liens: Amending claim: Landlord and tenant: Priority of liens: Privity of contract: Waiver. </p> <p>1. A claim for a mechanic’s lien which referred only to the leasehold interest in the premises of the person for whom materials had been furnished cannot be amended after the expiration of the statutory time for filing liens so as to assert in addition a claim upon the distinct and separate estate of the owner of the fee.</p> <p>2. A lease of land for a term of fifty years, which did not contemplate the construction of improvements on the premises but provided only for the payment of a specified yearly rental and the taxes, created the relation of landlord and tenant between the parties, within the meaning of ch. 466, Laws of 1887 (sec. 3814a, S. & B. Ann. Stats.), providing that the statutes relating to mechanics’ liens shall not be construed as giving a lien where the relation of landlord and tenant exists; and the effect of the statute would not be overcome by the consent of the landlord to the making of improvements.</p> <p>3. Where money is loaned and a mortgage executed after the commencement of the construction of a mill and the making of a' contract for machinery to be placed therein, the lien of the mortgagor on the debtor’s interest in the premises is subsequent to the lien for machinery. Vilas v. McDonough Mfg. Co. 91 Wis. 607, followed.</p> <p>4. Where a manufacturer of machinery has equipped a mill for a tenant under a contract, no privity of contract exists between him and the landlord, who also holds a mortgage on the leasehold interest, such as will enable the landlord to insist that there can be no recovery on the contract for want of performance.</p> <p>5. The tenant in such a case, in the absence of fraud or unlawful combination, would not be precluded from waiving strict performance of the contract and adjusting the manufacturer’s claim on fair and equitable terms.</p>

<p> Railroads: Failure to operate spur trade: Ownership: Pleading: Consideration. </p> <p>1. A complaint in an action against a railway company for failure to operate a spur track to a warehouse under sec. 1803, R. S., which fails to show that the plaintiff constructed or owns the track, does-not state a cause of action, the duty of railroad companies to operate such tracks under that section being limited to those provided by the person desiring the service.</p> <p>3. Although a railroad company constructed a spur track in a public street especially for the benefit of the owner of a warehouse, and such track had been improved and graded by him, a promise by the railroad company to' continue to operate it for his benefit would be without consideration.</p>

<p> Wills: Witnesses: Wife of executor: Revocation: Marriage of testatrix. </p> <p>1. The wife of the executor of a will is a competent witness thereto, since the executor, as such, takes no beneficial interest under the will.</p> <p>2. The marriage of a woman does not revoke a will previously made by her, the common-law rule in that regard having been changed by the statutory removal of her disabilities in respect to the disposition of her property.</p>

<p> Mortgages: Setting aside for fraud: Failure to ascertain contents: Husband and wife. </p> <p>In a proceeding by the wife of a mortgagor to set aside the mortgage so far as it affected her dower and homestead rights in a portion of the land; she testified that she could read English print with difficulty and English script not at all; that she intended to exe- ' cute the instrument, but that she had been induced by her husband to believe that the mortgage covered his store property only. The mortgage was regular upon its face, and no fraud was charged against the mortgagee. The attorney who took the wife’s acknowledgment testified that he either read the mortgage to her, or asked her if she knew its contents, and she had replied that she did, basing his testimony upon the fact that he never took an acknowledgment without doing one or the other. Held, that a finding that the wife voluntarily executed the instrument knowing its contents should not be disturbed on appeal.</p>

<p>Appeal from a judgment of the circuit court for Richland •county: G-eo. Clementson, Circuit Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the circuit court for Iowa ■county: Geo. Clementson, Circuit Judge.</p> <p>This action was brought under ch. 220, Laws of 1893, by. the plaintiff, an employee of the defendant as a helper in the day switching crew of the defendant company, -in its yard at Madison, Wisconsin, to recover damages for an injury sustained by him, while in the line of his duty, in consequence of the alleged negligence of the foreman of said crew, one Boach, by reason of which the plaintiff’s left hand was crushed, and it became necessary to amputate his arm above the wrist. The. complaint charged, as the cause of his injury, negligence on the part of the plaintiff’s fellow-servants or co-employees, and in particular of Boach, the foreman of the day switching crew, in the yard in which the plaintiff was engaged, for failing to follow the rules and custom governing switching therein, and that such negligence was the proximate cause of the plaintiff’s injury, and asserted that the plaintiff was free from contributory negligence. •</p> <p>It was found by the special verdict, among other things: (1) That at the time of the injury, and for a number of years prior thereto, it was the practice and custom, in making up trains in the yard, for the helper, when a car was kicked back to be connected with other cars, to catch the car so> kicked back and ride it down to the other cars, and to make' the coupling then and there, if he could, (2) That at the-time of the plaintiff’s injury, and prior thereto, it was the practice and custom, in the yard, for the foreman of the switching crew, after kicking back a car to be so coupled, not to kick back another ear upon the same track until the' helper who had gone with the first car had come out from between the cars, so that the foreman could see that he was-in a position to catch the next car. (3 and 4) That the' plaintiff and Roach, the foreman, at the time knew of the’ custom in these respects. (5) That the plaintiff, after he-had ridden the refrigerator car down to near the stock car, alighted and went between these cars to couple them-. (6) That while between said cars a car was kicked down the main track and struck the refrigerator car, driving it and the stock car together. (7, 8, and 9) That at this time the plaintiff was trying to make the coupling, and his left hand, by reason of the cars being so driven together, was caught between the drawheads and crushed, the plaintiff being in the line of his duty, and exercising ordinary care under all the circumstances. (10, 11, and 12) That Roach, the foreman, caused the car which struck against the refrigerator car to be kicked down the main track, and knew at the time that the plaintiff had gone down that track with the refrigerator car to couple it to the stock car; that, in causing the car which struck the refrigerator car to be kicked back at the time he did, he was guilty of negligence. (13) That the plaintiff’s hand was crushed while he was between the stock car and the refrigerator car, by reason of, and as the direct consequence of, the negligence of Roach. The plaintiff’s damages, if entitled to recover, were fixed at $6,000.</p> <p>The defendant had asked that the following questions be-severally submitted to the jury as a part of the special verdict, but they were each rejected, namely: (5) Ought a man of ordinary intelligence and prudence, engaged in the business then followed by said Roach, to have reasonably expected, under the attending circumstances, that such violation, of said custom at the time and place in question would result in a bodily injury of some kind to the plaintiff? (7) At the time the plaintiff was injured, had it, for a great many years, been the uniform custom of all helpers in switching crews in defendant’s yard at Madison, who have gone between cars to couple them, to come out again immediately if they failed to make the coupling the first time, and look for coming cars?</p> <p>After verdict, the defendant moved, upon the minutes, to set aside the verdict and for a new trial, upon its exceptions* and because the verdict was contrary to the law and the evidence, because the damages were excessive, and because the verdict did not cover all the issues. This motion was-denied, and, upon plaintiff’s motion, judgment was given on the verdict for the plaintiff.</p> <p>The principal questions for consideration on this appeal are: First, wffiether the special verdict contains a sufficient finding that the negligence found by the jury was the proximate cause of the plaintiff’s injury; second, whether the-court erred in refusing to submit to the jury questions Nos. 5 and 7 proposed by the defendant. No instructions were given by the court to the jury upon the question whether the negligence of the defendant was the proximate cause of the plaintiff’s injury.</p> <p>It appeared in evidence that there were several side tracks north of the main track in the Madison yard, designated by . numbers, and they have a slight descending grade towards the east. The train in question was a way freight from the west, consisting of twenty-two or twenty-three cars, and drew in from the main track on the side tracks 8 and 7. Plaintiff was a helper in defendant’s day switching crew at Madison, which consisted of the foreman, Roach, and himself and Charles Mahaney as helpers. After setting out the caboose, the train was pulled west, until about half of it was on the main track, when it was separated in the middle, so that the westerly car of the east half -stood over on the main track something like four feet. That was a stock car, and the brake on it was set. The west half of the train was then pulled west beyond switch 10, and a refrigerator car thrown down the main line. After it passed No. 10 switch, the plaintiff threw that switch back on side track 10, and ran and caught the refrigerator car, and rode it down, setting the brake on the east end of it; and, when it was about six or seven feet from the stock car mentioned, he alighted from it, and went to the stock car, standing there, facing east, with his left hand grasping the slats of the stock car; and, as the refrigerator car came up, he seized the link in its drawbar with his right hand, and entered it into the draw-bar of the stock car, but failed to make the coupling, because, as he testified, of the difference in the height of the draw-bars, of one to two inches. The refrigerator car recoiled back twelve to nineteen inches,.and commenced returning slowly again; and while it was moving, and within that distance of the stock car, and the space was not over five or six inches between the end of the link and the stock-car draw-bar, he attempted to change the link from the refrigerator car to the stock-car drawbar by reaching back and grasping the link with his left hand and the pin with his right, when another car, sent down on the main track, struck the refrigerator car all of a sudden, and it caught his hand. lie testified that he had just got the link out of the refrigerator car when the car struck and his hand was caught. Evidence was given tending to show that it was dangerous to attempt to change a link within the short space and under the circumstances stated; that it was likely to result in the helper’s hand being caught. It-appeared from the evidence that the plaintiff had worked for about twenty jmars in the railway service, and for about three years in the Madison yard. On the part of the plaintiff, the evidence of four witnesses was ;given, in substance: That the duties 'of the foreman were to get the switching list and proceed to switch the train, and to see that there were brakes on all cars before they were cut off, and that there was a man in position to catch the cars before he cut them off, and to see if there was a man in between the cars making a coupling, and to hold the cars until he saw that man out safe before sending down another •car. The foreman cuts off the cars by pulling the pin. The helper throws the switches under the foreman’s directions, •and rides cars and couples them, and does the general work ■around the yard. When a car is kicked down, a helper gets ■onto it and rides it down, slacks it up before it strikes another ■car, and then gets down and makes the coupling, if he can; that is done by entering the link into the drawbar and setting the pin, and in two or three seconds. If he misses the ■coupling and the car stops still, then he is to set the pin and link so they will couple themselves when the cars are moved again. If the car moves back after it strikes, and then starts ;to move down grade again, as in this yard, the helper is supposed to stay in there and make the coupling; and, while in ■there for that purpose, it is the foreman’s duty not to kick ■a car down on the same track unless he has a man to ride it down, when it is the duty of the man riding it down to stop the car before it strikes, when he sees that a man has gone in there and that he has not come out. Such was the custom ■at that time, and had been for several years.</p> <p>The plaintiff testified that, when the refrigerator car was ■cut off, he caught it and rode it down; and he described his proceedings substantially as already stated, and said that there was a link in the refrigerator car as it came down, and none in the stock car; that he had hold of the link and steered it into the drawbar of the stock car,— got the link in; that he seized the pin, tried to get the pin down through it, but could not,' and the refrigerator car bounded back about eighteen or nineteen inches; that, when he held the link there between those two drawbars, there w'as a distance in addition to the length of the link, of fire or six inches between the end of the link and the drawbar; that when the car went back he noticed the drawbars, and one was higher than the other; that he caught the link with his left hand,, and the pin with his right, and tried to change the link from the refrigerator car to the stock car, and got the link about five or six inches out of the refrigerator-car drawbar, but not into the stock-car drawbar; that, when the car bounded back, it stopped, and then started to move down very slowly; that another car was thrown down the main line and struck the refrigerator car, when his hand was caught between the cars; that it moved the cars six or eight feet, and himself along with them; that he had to walk with his hand between the drawbars; that when he started to catch the refrigerator car, going down the main line, Roach started to cut a car off; that from his position he could see pláinly down the track to where he (the plaintiff) was; that it was the usual practice and custom in switching and coupling cars, when the first coupling is not made, for the helper to stay in between and make a second attempt to couple the cars when they came together again.</p> <p>On the part of the defendant, proof was given by several-witnesses (present and former employees in said yard) that it was the general custom and practice in the yard to throw or kick down cars, one after another, upon the different tracks, without stopping to wait between cuts to see if helpers had come out from between the cars; that when the helper goes in between cars, and misses a coupling for any' reason, it is his duty to come out before attempting to make it again, so that, if he is watching for another cut, he can catch it, if it is coming, and ride it down; that if a car that is cut off approaches a stationary car and hits it, and the helper fails to make a coupling, it is his duty, even if it should bound back sixteen to eighteen inches, to come out before attempting to make that coupling again, and see that there is nothing else following that car that he is trying to couple; that it was the custom and practice in that yard to back in with the engine, and make up the missed couplings after the train is switched; that the duties of the helpers are to catch cars, and attend switches, and do what coupling they can; that, as between the approaching car and the coupling, it is the helper’s duty first to attend to catching the car; that it was not the duty of the foreman to look out for his helpers; that the custom and practice in the yard was for- each one of the crew to look out for himself; that they are supposed to look out for themselves; that they had never heard of any custom that, required the foreman to wait between cuts, in sending down cars, to see whether his helpers had come out from between the cars, and had made their couplings; that it is the duty of the helper, when he misses a coupling, to come out at once and look for another car.</p>

<p> Insurance against fire: Conditional ownership of single article: Divisibility of contract: Proofs of loss: Waiver: Verdict. </p> <p>1. A policy of insurance which, covers generally all the household goods of specified classes belonging to the insured on certain premises, but does not mention any particular article as the one to be protected, and which provides that the entire policy shall be void if the interest of the insured be other than sole and unconditional ownership, is not rendered void as to goods to which the insured’s title is absolute by the mere fact that his title to one article thus generally described was conditional, the contract of insurance being to that extent divisible.</p> <p>H. Unequivocal notification by the adjuster of an insurance company / that, whatever the circumstances of the loss, the company declines to pay it, constitutes, as matter of law, a waiver of proofs of loss under the policy.</p> <p>-3. It is not a prejudicial error to take a general verdict in connection with a special verdict, when the special verdict disposes of all the controverted issues.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: O. B, Wym:aN, Circuit Judge.</p> <p>Plaintiffs owned an old established livery and funeral business, so called, in the city of La Crosse, Wisconsin. They sold such business to the defendants, with the good will thereof and all personal property used therewith, for the sum of $13,000, and leased to defendants, for use in such business, the barn and premises where the same had been theretofore carried on. As an inducement to defendants to make the purchase at said sum of $13,000, plaintiffs agreed in writing that neither of them would engage in the same ■kind of business in the city of La Crosse for the term of five years, and that, in case of a breach of such agreement on the part of either of them, they would, for each day such breach continued, pay to the defendants the sum of $10. Some time after the transaction referred to, defendants, with others, formed a corporation, called the “ City Livery Company,” to conduct the business purchased by defendants as aforesaid, and to such company said business and the property purchased therewith were transferred, but without the contract in restraint of plaintiffs’ engaging in the business being specially mentioned. Subsequently, John V. Palmer, in violation of the aforesaid contract, again entered into a livery and funeral business in the city7" of La Crosse, and thereafter, upon default being made by defendants and their grantee (the said livery company) in the payment of the rent due on the barn leased as aforesaid, brought suit therefor against defendants, and they counterclaimed for damages for the aforesaid breach of contract. On the trial no question was raised as to the amount of rent due upon the lease. Proof was made on the part of defendants of the allegations of the ■counterclaim, in accordance with the aforesaid statement. The trial court held that defendants were not entitled to ■recover on such counterclaim, and directed judgment for plaintiffs for the rent due. Judgment was thereupon entered in plaintiffs’ favor, from which this appeal was taken.</p>

<p>(1) Writ of error: Adequate remedy by appeal. (2) Obstruction of highway: Special injury to individual.</p> <p>1. The mere fact that an aggrieved party has been given an adequate remedy by appeal to the supreme court does not deprive him of the right to have the proceedings reviewed by that court on writ of error, under sec. 21, art. I, Const.</p> <p>2. A private individual does not receive such special injury from the unlawful obstruction of a highway, merely because he does not have any other practicable route by which he can reach his land, as will entitle him to recover therefor from the person responsible for the obstruction.</p>

<p> Master and servant: Implied contract: Court and jury. </p> <p>In an action for wages, evidence that plaintiff had been employed by-defendant “at a salary of $1,500 per annum, to begin June 1,1889,” and that he began work on that date, and continued uninterruptedly in defendant’s employ until June 1, 1895, without any new contract, is held sufficient to require the submission to the jury of the question whether plaintiff was employed for the entire year ending June 1,1895, at the rate of $1,500 per annum, although during that year defendant notified him that his salary had been reduced.</p>

<p>•(I) Pleading: Legal or equitable cause of action? (2) Vendor and purchaser of land: Partial failure to perform: Rescission. (3) Recording acts: Lease: Bona fide purchaser. ;</p> <p>1. The intention of a^pleader in setting up facts pertinent to a claim for 'equitable relief by rescission of the sale and conveyance of certain land, but not material to a legal action for the recovery of a mere money judgment, is held to have been to state an equitable cause of action, even though the prayer for relief demanded judgment for an amount equal to the consideration paid for the conveyance as well as for the rescission.</p> <p>:2. Where a contract for the sale of land lias been so far executed that a valid title to the land has been conveyed to the vendee, breach of a covenant in the deed to deliver possession of the premises on a specified day and the insolvency of one of the grantors are in^ sufficient to warrant a rescission.</p> <p>'3. A lease of land for one year is not a conveyance within the meaning of sec. 2242, E. S., nor is the lessee a purchaser in good faith as against a prior conveyance by the lessor. 1</p>

M. Webb, Circuit Judge. The action is to recover a balance for lumber sold and delivered to the defendant on board cars at Wausau, Wisconsin. The plaintiff was a corporation, dealing in lumber at Wausau. The defendant was a manufacturing corporation, doing business at Centraba, Wisconsin.

<p>Appeal from, an order of the circuit court for Portage county: Chas. M. Webb, Circuit Judge.</p> <p>The facts are stated in the opinion.</p>

M. Webb, Circuit Judge. Action to recover for a death indemnity on a certificate of insurance issued by the defendant, a mutual accident assurance association. G-eorge H. Eox made his application to the association with knowledge of its method of business and of the manual of classification of risks with reference to which all certificates ■ of indemnity were issued, about the 26th day of November, 1888. He was then a station agent eat Mankato, Minnesota.

Appeals from a judgment of the circuit court for Wau-shara county: Jomsr Goodland, Judge. This is an action in equity to compel the defendant to convey to the plaintiff two half lots of land upon the plaintiff’s .conveying to the defendant two other half lots in the same block in the village of Plainfield, Wisconsin.

M. Webb, Circuit Judge. This action was brought by the plaintiff to compel the defendant the German National Bank of Oshkosh to account for the proceeds of certain lumber and timber cut from lands claimed to belong to the plaintiff, which the defendant bank claimed to hold as security for certain loans made to the plaintiff and to the defendant the Paulding Lumber Company. ■ The plaintiff bought certain standing timber in Michigan, and in order to pay the purchase price he…

J. Vinje, Circuit Judge. This action was commenced November 16, 1895, by the plaintiff, for himself and all other taxpayers of said county, to restrain the county and its officers from paying to the defendant H. II. Grace, or issuing warrants to him for the pajnnent of, anything whatever for or on account of his-services as attorney, rendered or to be rendered to the county, and to compel the said Grace to pay back to. the county $2,012, which had previously been paid to him.

Susan Jones, an old lady about seventy-five years of age, who could not read or write,, died, leaving in the possession of one Morris Jones an instrument purporting to be her last will and testament, disposing of property of the value of' about $1,400.

W. Buenell, Circuit Judge. This is a consolidated action composed of a mechanic’s lien action and a creditors’ bill to sequestrate the property and wind up the affairs of an insolvent corporation. The leading facts out of which the litigation arose may be briefly stated as follows: Early in 1893 the defendant 'Jmnes L. Brown and one Anderson came to Oshkosh with a scheme for locating and building at that place a large plant for the construction of freight cars.

<p> Railroads: Injury to ivarehouseman sealing ear: Fellow-servants: Negligence: Statutory liability. </p> <p>A warehouseman of a railroad company who was injured, while sealing the doors of a car attached to an engine, through the negligence of the engineer or fireman in suddenly moving the engine, was not employed in “ operating, running, riding upon, or switching ” trains or cars, within the meaning of ch. 230, Laws of 1893, providing that a railway employee so engaged may recover for injuries caused by the negligence of another employee in the performance of his duties.</p>

J. ViNje, Judge. The plaintiff brought an action to recover damages against the defendant town, for injuries she had received while traveling on one of its public highways, and upon trial before a jury the defendant had a verdict in its favor. The plaintiff moved, upon the minutes of the court, for various reasons, to set aside the verdict and for a new trial. The court granted the motion without the imposition of costs, but the record fails to show upon what ground.

Croix county: E. B. BuNdy, Circuit Judge. Appeal from an order overruling a demurrer to the complaint.

county: R. G-. SiebboKee, Circuit Judge. On the 29th day of November, 1893, plaintiff’s testator,, while traveling on foot on the cross-walk from the west to-the east side of Park street, a much-used public thoroughfare-in the city of Madison, Wisconsin, and when about midway of the apron constructed from the sidewalk on the west side-' of the street to the macadam portion of such street, slipped,: fell, and struck upon his hip, thereby causing to him a serious bodily…

0. SiebegKee, Circuit Judge.- • This is an action to recover for personal injuries alleged, to have been suffered by reason of a defective highway.in the defendant town. The casé has been twice before- this-court upon previous appeals, and will be found in 85 Wis. 589, and in 88 Wis. oil.

Clementson, Judge. The action is for damages for the publication of an alleged libel. The alleged libel is in the following words: “ERESH ATTACK PREDICTED. “The Chicago Times-Herald says that-somebody will spring a fresh attack at the state teachers’ convention in Milwaukee nest week.

G. SiebecKeb, Circuit Judge. This was an action to recover the amount of a policy of life insurance, in which, the plaintiff had judgment for the amount claimed, which was reversed by this court, with $227.75 costs, October 22, 1895, and the case was remanded for a new trial. 91 Vis. 121-130.

G. SiebeoKer, Circuit Judge'. 'Plaintiff sued out a writ of attachment against the property of the defendant, Tfye Sbeasby & Smith Wall Paper & Paint Co., upon the alleged grounds — First, that defendant had or was about to assign, convey, dispose of, or conceal its property with intent to defraud its creditors; and, second* that it fraudulently contracted the debt and incurred the obligation in respect to which the action was brought.

<p>Senour Mfg. Go. v. Clarke, ante, p. 469, followed.</p>

G. Siebeoxee, Circuit Judge. The facts are stated in the opinion. To the point that a counterclaim for tort, in a tort action, may be set up provided it answers the other requirements of the statute, they ■cited Phillips, Code PI. § 251; Bliss, Code PI. § 372; Slone ■v. Slone, 2 Met. (Ky.), 339; Ileigle v. Willis, 50 Iiun, 588; Glenn <& II. Mfg. Go. v. Hall, 61 N. Y. 226; Carpenter v. Manhattan L. Ins.

G. Siebecjker, Circuit Judge. This is an action in the nature of a creditors’ bill, brought, by the plaintiffs, who are judgment creditors of the defendant Gordon, to subject about 260 acres of farm lands, conveyed by Gordon to the defendants Peek, September 8,1890,. to the lien of the plaintiffs’ judgment, on the ground that the plaintiffs gave credit to Gordon, while he held the title to said lands, upon the faith of his apparent ownership thereof.

M. Webb, Judge. This action was brought to recover upon a promissory note-given by the defendant to the plaintiff, August 2, 1893, for $255.

The defendant bought from the plaintiff a house and lot in the city of Appleton, for the price of $2,500. This was to be paid, $2,300 at time of delivery of deed, and the balance by paying the costs of certain street improvements, then. in progress, in front of the premises, for which the plaintiff bad contracted and would become liable, the amount whereof was then unknown,— such sum as the plaintiff should become liable to pay.

In the town of Pelican Lake, since prior to 1894, there has existed a duly-recorded plat covering a tract of land in such town, subdividing the same into lots and blocks, as provided by law.

<p> ■Contracts: Architects: Compensation: Instructions to jury: Immaterial errors. </p> <p>1. In an action to recover a balance alleged to be due for architect’s services, the plaintiff claimed that he first prepared plans, etc., for a two-story building for defendant, under an agreement that he was to receive for his work, including superintendence, four per cent, of the contract price, but that the building was never constructed; and that subsequently at defendant’s requesthe prepared plans, etc., for a three-story building, and began the superintendence of the same, but was discharged before the work had been completed. Undisputed testimony showed that the value of an architect’s services in preparing plans, etc., where his entire compensation had been fixed at four per cent., was two and one-half per cent, of the contract price of the building. Held, that the two sets of plans were properly regarded as applying to two different buildings, and that the plaintiff might recover two and one-half per cent, of the contract price of each. '</p> <p>2. Confusion in the statements of the trial judge in his charge to the jury concerning the measure of damages will not work a reversal, where the verdict clearly shows that the jury were not'misled thereby.</p> <p>8. Instructions admonishing the jury that they should not come to too positive a conclusion until they had discussed the matter, one with another; and that they should l'evolve the matters in their minds until 9 o’clock the next morning, but not become set on it until they had heard the discussion from the brethren in the jury room, which they would find perhaps more valuable than any other discussion they had heard,— do not constitute material error. ■</p>

D. Maeshall, Circuit Judge. This is an action of ejectment, to recover the 8. E. -J of section 7, township 29, range 5, in the county of Chippewa. The answer is a general denial. The cause was tried by the court, a jury having- been waived. The evidence is almost entirely documentary.

J. Vinje, Circuit Judge. This action was brought to foreclose a mortgage executed December 9, 1891, by the defendant Benjamine G. Tousey to the defendant D. C. Sullivan, for $1,433.34 and interest, upon certain lots and tracts of land in Douglas county, and •assigned by said Sullivan to the plaintiff.

Appeal, from an order of the superior court of Douglas county: Chas. Smith, Judge. This action was brought to enforce the statute liability of stockholders of the defendant the Douglas County Bank.

Smith, Judge. This action of replevin was commenced June 21, 1895, to recover possession of 415 barrels and 607 sacks of salt, in all equivalent to 818 barrels, of the admitted value of $600, by the plaintiff, a wharfinger and -warehouseman, and owner of the salt, at West Superior, against the defendants JRooney and Beardsley, copartners doing business under the firm name of the Superior Warehouse Company, and as such operating a warehouse at that place, and also against the…

Smith, Judge. This is an action to recover damages for the conversion of six horses. The action was brought against the sureties upon the official bond of one Dan Kennedy, now deceased, who was the sheriff of Douglas county from January, 1891, to January, 1893. The alleged conversion took place in November, 1892, at the city of Superior. At that time the plaintiff was a married woman, living in Michigan.

<p> Accident insurance: “Intentional injuries:” Murder: Evidence. </p> <p>1. Under an accident insurance policy exempting the insurer from liability for “intentional injuries inflicted by the insured or any other person,” there can be no recovery if the injury was intentional as to the person inflicting it, although accidental as to the insured in that he did not anticipate or expect it. Button v. Am. Mut. Ace. Asso. 92 Wis. 83, distinguished.</p> <p>2. To defeat a recovery under such a policy it is only necessary that the evidence of intentional killing preponderate against the presumption of accident.</p> <p>3. In an action to recover under such a policy, the evidence — showing, among other things, that the insured was a coal-heaver in the employ of a railroad company; that he was killed about 11 o’clock on a dark, stormy night while at work with one companion in a shed lighted by two lamps; that his death was caused by a pistol bullet in the brain; that the first shot was followed by two others each of which inflicted a mortal wound; that the shots could have-proceeded only from the open side of the shed; and that when one of the shots was fired the weapon was so near his body as to discolor his clothing with the powder,— is held to establish with reasonable certainty that the insured was murdered, and that the murderer knew his victim and fired with intent to kill him.</p>

<p>Appeal from a judgment of the superior court of Douglas ■county: O. B. Wymau, Judge.</p> <p>The action was brought to recover upon two several promissory notes, for $625 each, made by the defendants to one L. L. Cloyd, and indorsed by Cloyd to one J. 0. Kennedy, and by Kennedy to the plaintiff. The history of the transactions out of which the controversy arose is as follows:</p> <p>Cloyd bargained for four lots, in the city of Superior, Avith the Land & River Improvement Company. He had av written contract for the lots, and had erected a good building on two of them. There remained unpaid of the purchase price of the four lots the sum of $4,500. He sold the two unimproved lots to the defendants for the price of $4,500, the sum unpaid on his contract, and gave the defendants his contract for them. Two thousand dollars was paid -down, and the balance left to deferred payments. It was agreed orally that the money to be paid by the defendants should, as paid, be applied by Cloyd on his contract with the Land & River Improvement Company. The payments were made to become due at the same time payments became due on Cloyd’s contract, and negotiable promissory notes, maturing at the same dates, of which the notes in suit are two, given collateral to the defendants’ contract. Cloyd afterwards sold his interest in both contracts to Kennedy, and transferred the notes, before maturity, with the contracts, to him. Kennedy agreed to carry out Cloyd’s promise to the defendants, to apply all moneys paid by them to the Land & River Improvement Company, on the contract. Kennedy afterwards borrowed money from the plaintiff, and, for security, transferred both the contracts and the promissory notes to the plaintiff. It was a controverted question in the case whether the plaintiff knew of the arrangement whereby the money was to be paid to the Land & River Improvement Company, and assented to it, at the time when it received the notes. The jury found for the plaintiff on that issue. But, when the defendants learned that the contracts and their notes had been transferred to the plaintiff, they refused to pay, unless the plaintiff agreed to comply with the-promise of Cloyd in reference to the application of the money paid. The plaintiff agreed, to perforin Cloyd’s undertaking, and to so apply such payments as should be made. Payments were made, but were not applied on the contract of the Land & River Improvement Company. The defendants refused to make further payments, hence the action. It was a principal contention at the trial whether the plaintiff agreed to make such application of moneys paid by the defendants on these notes, and that issue was found by the jury in favor of the defendants. The jury also found that the bank had no knowledge of the promise of Cloyd in reference to the application of the moneys paid by them at the time when it received the notes as such security. There remains unpaid on defendants’ contract with Cloyd upwards of $1,300. There remains unpaid to the Land & River Improvement Company above $3,000. They have no credit upon the contract for the money which they have already paid. They have offered to pay the balance unpaid on this contract with Cloyd, and the notes, on condition that the lots mentioned in the contract be conveyed to them. The position of the plaintiff is. that it is in no way responsible for the conveyance of the lots, but is entitled to recover the amount of the notes, irrespective of such conveyance; that the oral contract with Cloyd has no relation to, or influence upon, its rights. Cloyd and Kennedy are both insolvent.</p> <p>Both parties moved for judgment upon the special verdict. The defendants’ motion was denied, whereupon they moved for a new trial, which was denied, and judgment was rendered for the plaintiff for the amount of the notes, from which the defendant Ramsey appealed.</p>

<p>Appeal from a judgment of the superior court of Douglas county: Chas. Smith, Judge.</p> <p>This action was commenced to recover of the defendant on two past-due promissory notes of $175 each, with interest at the rate of ten per cent, per annum, on one from the 1st day of February, 1896, and on the other from the 1st day of August, 1896. The notes were dated the 1st day of August, 1894, and were made and given to Frank J. McLean, who, for value, before the commencement of this action, assigned them to the plaintiff, who was at the time of such commencement the lawful owner and holder thereof. The foregoing facts were set forth in the complaint by appropriate allegations. The defendant answered, admitting such plaintiff’s causes of action, and for a counterclaim alleged that he gave to the pajme of the notes, F. J. McLean, a mortgage upon some real property to secure the payment thereof; that such mortgage was assigned by such payee to plaintiff; that it was of the value of $5,000; that neither the payee of the notes nor plaintiff had accounted therefor; that plaintiff had converted said mortgage to his own use; and that defendant claimed the value thereof, to wit, $5,000, as a counterclaim to plaintiff’s causes of action,— and demanded a judgment therefor, less the amount due on the notes declared on in the complaint. The court struck out the answer, on motion, as frivolous, and ordered judgment in plaintiff’s favor according to the demand of the complaint. Judgment was rendered accordingly, and defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. IT. JohNsoN, Circuit Judge.</p> <p>This was an action brought by plaintiff to enjoin defendants from selling certain real estate, which she claimed to-own, on execution issued on a judgment against her husband,, alleged to be void, and to remove the cloud from her title to such real estate created by such judgment and pending efforts to enforce the same as a lien thereon. The answer put in issue the allegations of the complaint regarding the invalidity of such judgment, and the lonajides of plaintiff’s claim of title to the real estate, and counterclaimed that the title-to the real estate was placed in the name of plaintiff by her ‘husband for the purpose of hindering and delaying his. creditors. Defendants prayed for judgment that the title to the lands, as to the creditors of plaintiff’s husband, was in him, and for a sale thereof for the payment of the judgment plaintiff sought to restrain the enforcement of as a lien thereon. Plaintiff replied to the counterclaim. The cause-was tried by the court and findings filed, in substance, as-follows:</p> <p>(1) When the action was commenced, and for some time prior thereto, plaintiff was the owner and in possession of' the lands described in the complaint, situated in Milwaukee-county, Wisconsin.</p> <p>(2) June 22, 1895, a pretended judgment was rendered in the circuit court for Sheboygan county, Wisconsin, in favor of the defendant bank and against William Clarke (husband of plaintiff), for $21,665.55, which judgment was docketed July 3, 1895, in Milwaukee county, Wisconsin.</p> <p>(3) Such proceedings were thereafter had that the aforesaid land was advertised for sale on execution issued on such judgment, and proceedings in that regard •were pending at. the time this action was commenced.</p> <p>(4) Plaintiff was the bona fide owner of said land, and the-proceedings to sell the same cast a cloud upon her title thereto..</p> <p>(5) February 17,1890, plaintiff’s husband owned an eighty-six-acre farm in Milwaukee county, Wisconsin, worth $18,500,. ■which included their homestead, valued at $13,000; and on that day the husband, for a nominal consideration, conveyed said farm to plaintiff. The conveyance was not made in. contemplation of any indebtedness to be thereafter incurred by him.</p> <p>(6) February 11, 1890, William Clarke subscribed for $17,000 of stock in the Sheboygan Electric Light Company, which stock be thereafter fully paid for. At the date of such subscription he was not indebted to the defendant bank, or any other person, in any sum whatever.</p> <p>(7) May 5, 1890, plaintiff and her husband joined in a note and mortgage on the farm to one Klann, by which they procured a loan of $10,000, which the husband paid into the corporation on his aforesaid subscription to stock. The said corporation was not then indebted to the defendant bank. In consideration of plaintiff joining in the mortgage, her .husband turned over to her $3,700 worth of personal property on the farm.</p> <p>(8) In 1890 plaintiff sold the personal property for $3,700, «.nd the farm for $8,500. Thereafter she invested the proceeds of such sales and the accumulations thereof, together with $3,000 of borrowed money, in the property described in the complaint, and improvements thereon. After the purchase of such property, one tract of the land was used as a homestead, and the rest was rented, the income going to plaintiff as her separate property.</p> <p>(9) The judgment in favor of the defendant bank, mentioned in the complaint, was entered in proceedings under the statute to wind up the aforesaid corporation as insolvent, to sequestrate its property and distribute the same among its creditors. In the action judgment was rendered tor such sequestration, also for the appointment of a receiver; the amount due to the aforesaid corporation from said William Clarke, as a stockholder, was adjudged and determined, and thereafter, without notice to him, judgment was rendered against him in favor of the defendant bank for its pro rata share of the amount due to such corporation from him. The judgment mentioned in the complaint is the judgment so entered, and it is void as in excess of the jurisdiction of the court.</p> <p>As a conclusion of law, the court found that the plaintiff ■was entitled to judgment as prayed for in the complaint.</p> <p>Exceptions were filed to raise the questions discussed in the opinion. Judgment was rendered in accordance with the findings, and defendants appealed.</p>

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

BeNNett, Circuit Judge. This action was brought to set aside a deed of conveyance •of a certain farm, containing about seventy-five acres, in the town of Herman, Dodge county, made by Ira S. B. Cole, November 22, 1892, to the defendant Alice Farmer, on the .ground that it was procured through fraud, undue influence, and want of capacity of the grantor. On the 29th of the same month, Alice Farmer conveyed the same premises to ■the defendant Peter Getzinger.

Appeals from a judgment of the circuit court for Winnebago county: Geo. W. Btjehell, Circuit Judge.

<p>Appeal from a judgment of the circuit court for Milwaukee county; D. H. JOHNSON, Circuit Judge.</p> <p>This is an action to recover $506.74, alleged to have been extorted from plaintiff corporation by the defendants by duress of goods. The action was tried by the court. There were many facts which are not disputed, and these facts may be brieffy stated as follows:</p> <p>In April, 1892, the firm of Grant, Breese & Co. owned certain lots in the city of Milwaukee, on which they constructed at about that time a large factory building and a smaller building for a machine shop and boiler house. These buildings were constructed for them by the Guetzlcoiv Bros. Go., and cost $6,200. On the 30th day of April, 1S92, Grant, Freese & Co. leased to the plaintiff corporation said lots and the buildings thereon for a term of ten years from the 1st of May, 1892, at an annual rental of $1,620, to be paid in monthly instalments in advance. By the terms of said lease, among other things, the lessors agreed to rebuild the buildings in case they were destroyed by fire, to keep the docks adjoining the premises in good repair and the slip properly dredged, to maintain a railroad side track upon the premises, to pay all taxes on the premises, the lessee, howevfer, to reimburse the lessors for such amount of the taxes as were levied upon the buildings. The lessee, upon its part, agreed to pay the rent as specified, to quietly deliver up the premises at the end of the term in as good condition as when it took possession, inevitable accident and ordinary wear and loss by fire without its neglect excepted; “also to keep the buildings upon said premises and the machinery contained constantly insured in a good responsible insurance company or companies for not less than six thousand two hundred dollars, payable, in case of loss, to the -said lessors as their interest may appear.” It was further provided in the lease that the lessors should have a lien on the dry kiln and barn to be erected by the lessee upon the premises, and upon the engine and boiler to be placed by said lessee in the'aforesaid engine house,— said dry kiln, barn, and boilers to cost not less than $5,800,— to secure the payment of the rent and any other sum to be paid by the lessee to the lessors under the lease; the lessee having the right to remove said dry kiln, barn, engine, and boiler at the expiration of the lease, and after full payment of any sum due thereon, The remaining provisions of the lease are not necessary to be stated.</p> <p>Immediately upon the execution of this lease the plaintiff •corporation went into possession of the property, and conducted its business of contracting and building thereon up to the time of the fire which destroyed the larger building ■or machine shop March 31,1895. The plaintiff corporation placed in the buildings a large amount of machinery, as was ¡necessary for conducting its business, and also placed upon the premises a considerable quantity of manufactured and unmanufactured lumber.</p> <p>In February, 1895, there was upon the entire premises $25,000 in insurance, mostly in policies of $1,000 each, which had been placed thereon by the plaintiff corporation. The ■beneficiaries named in each of the policies were “Z. Z. and W. Z. Breese and Quetzlww Bros. Co., as interest may appear.” . (Z. Z. and W. L. Breese had succeeded Grant, Breese •& Oo. in the ownership of the premises prior to this time.) Each thousand dollars of insurance was divided into items •covering different classes and pieces of property. Thus out •of each $1,000 of insurance $133.33 was placed upon the machine shop, $333.33 on the fixed and movable machinery of .all descriptions, $300 on the lumber and stock of all descriptions, $33.34 on the boiler and engine house, $133.33 on the •engine, boiler, and appurtenances. There were also smaller items, which it is unnecessary to state. By computation it will be easily seen that the amount of insurance upon the factory building in the whole $25,000 of insurance was :$3,333.26, and upon the'brick engine house $833.50; thus making the amount of insurance upon the buildings owned by the defendants $4,166.76, and leaving a balance of ¡$20,833.24 .upon the machinery; stock, and other property ■owned by the plaintiff corporation.</p> <p>February 15, 1895, there was a small fire, which destroyed property to the amount of a little over $500 belonging to the plaintiff corporation, and in which the Breeses had no interest. This loss was adjusted, and after its adjustment the gross amount of insurance was $24,458.46, but the protection to the defendants stood the same as before. On the 31st of March, 1895, a fire occurred which totally destroyed the factory building, but not the engine house. At this time the plaintiff corporation was. in arrears of rent between $1,800 and $1,900. It became necessary at once to make out proofs of loss, and then occurred the difficulty which gave rise to this action. There is a dispute in the testimony as to just what took place between the parties at this time. The claim of the plaintiff is that the defendants insisted that they must have $4,000 out of the insurance money on account of the loss of the building, and that they would not sign the proofs of loss until they were assured that sum; nor would they sign the drafts payable to the joint order of both parties until they were assured that they would receive $4,000. The plaintiff also claims that at that ■ time it had numerous contracts on hand for the construction of buildings, and that it was absolutely necessary for it to settle the losses at once in order to go on with its business, and that by stress of these facts it was compelled under duress to agree to pay $666.14 to the defendants, which they were under no legal obligations to pay, and that they did thereafter pay $506.74 of such sum. The claim of the defendants, on the other hand, is that under the lease they were entitled to assurance payable to them to the amount of $6,200 upon the buildings and any interest which they might have in the machinery; and that the plaintiff’s failure to keep the insurance as the lease provided did not prevent the defendants, as between them and the plaintiff, from claiming the full amount which ought to have been carried. They further claim that the factory building was worth at least $4,000, and more than that proportionately, and that they were, therefore, entitled to be paid out of the insurance $4,000, if not more. The defendants deny any compulsion, but claim that the matter was simply a difference of opinion as to tbeir legal rights, and that it was finally settled by agreement without duress, by which they were to receive $4,000, instead of $3,833.26.</p> <p>The findings of fact made by the trial court were as follows :</p> <p>“First. That shortly before the 31st of March, 1895, the plaintiff and the defendants jointly applied to various fire insurance companies for, and then obtained, various policies of fire insurance against loss by fire issued to them, and payable as their interests might appear on their properties thereafter, then respectively situated upon the premises described in the complaint, to wit, on the three-story frame building, the property of the said defendants, policy for the sum of $3,333.26; on the property of the plaintiff, consisting of machinery, office furniture and fixtures, lumber, manufactured and unmanufactured, on the said premises, policies in the aggregate of $21,125.20.</p> <p>“ Second. That afterwards, on the 31st day of March, 1895, the said three-story building was destroyed by fire without fault of the plaintiff, and at the .same time the property of the plaintiff so as aforesaid insured was in like manner destroyed by fire without fault of the plaintiff.</p> <p>“Third. That thereafter the losses of the plaintiff and defendants were adjusted by the several insurance companies, and such adjustments accepted by the parties, plaintiff and defendants, as follows: The defendants’ said losses at $3,333.26, and no more; and the plaintiff’s losses at $14,444.40.</p> <p>“Fourth. That by the terms of said policies of insurance the defendants and plaintiff were required to unite in making proofs of their said losses to said insurance companies, and the amount as aforesaid, due to the plaintiff and. defendants, to be made payable to their joint orders.</p> <p>“Fifth. That at the making of said proofs of losses the defendants did wrongfully and unlawfully demand of and from the plaintiff the snm of $666.74, not then justly owing by the plaintiff to said defendants, or any part thereof; and did then and there, by duress and bad faith, demand of the plaintiff, as condition of the defendants uniting with it in procuring the money for its said losses, the sum of money last aforesaid, to which, nor any part-thereof, the defendants well knew then and there they were not entitled; and that the plaintiff, in order to secure its insurance of $14,444.40 from the said insurance companies, was thereby compelled to agree to and with the defendants under duress and compulsion to pay the said sum of $666.74 aforesaid to the defendants in order to obtain its said insurance. And the defendants refused to unite with the plaintiff in collecting its insurance moneys until the plaintiff had agreed to pay the sum of $666.74. And the plaintiff would have been unable to obtain the moneys due from said insurance companies without such agreement.</p> <p>“ Sixth. That after such proofs of losses were made and the same adjusted as aforesaid, and after checks for the payment thereof had been issued payable to the joint order of the plaintiff and defendants, the defendants further refused to indorse said checks, or either of them, so as to enable the plaintiff to receive the amount of its said insurance, or any part thereof, until the said plaintiff had agreed to pay the last-named sum of $666.74. And in pursuance of such agreement the plaintiff did then and there pay to defendants on account of said unjust and unlawful claim the sum of $506.74, which sum was paid in pursuance of said contract of duress and compulsion, and which would not otherwise have been paid by the plaintiff. And the several allegations of the answer are unproven and untrue in fact.”</p> <p>From these facts the court concluded that the plaintiff was entitled to judgment for $506.74, with interest from March 31, 1895, and from said judgment the defendants appealed.</p> <p>They contended, inter alia, that the facts found did not constitute duress. 2 G-reenl. Ev. §-301; 6 Wait, Act, & Def. 660, par. 8; Seymour v. Prescott, 69 Me. 376; York v. HinMe, 80 -Wis. 626; Kruschke v. Stefan, 83 id. 373; Peyser v. New York, 70 N. Y. 497; Flower v. Lance, 59 id. 603; Emery v. Lowell, 127 Mass. 138; Gable <o. Foley, 45 Minn. 421; Lam-son v: Boyden, 57 Ill. App. 232; Gustin v. Viroqua, 67 Wis. 314; Natcher v. Natcher, 47 Pa. St. 496; Detroit v. Martin, 34 Mich. 170; MoCormiclc v. Valsack, 4 S. Dak. 67; Goebel v. Linn, 47 Mich. 489; Preston /o. Boston, 12 Pick. 13; Miller v. Goats, 4 Thomp. & C. 429.</p> <p>argued, among other things, that duress of goods may exist when, one is compelled to submit to an illegal exaction in order to obtain them from one who has them in possession, but refuses to surrender them unless the exaction is submitted to. 6 Am. & Eng. Ency. of Law, 57-60, note 4; Cobb v. Charter, 32 Conn. • 358; Astley v. Reynolds, 2 Strange, 915; Smith v. Bromley, 2 Doug. 696, note; Ashmole v. Wainwright, 2 Q. B. 837; Liar-' mony v. Bingham, 12 N. Y. 99 ; Scholey v. Mumford, 60 id. 498; Chase v. Dwinal, 7 Me. 134; Chandler v. Sanger, 114 Mass. 364; Spaids v. Barrett, 57 Ill. 289; Foss v. Hildreth, 10 Allen, 76; City Nat. Bank v. Kusvwrm, 88 Wis. 202. The principle applies equally well when money is extorted as a condition to the exercise of any other legal right. Bates v. Hew York Lns. Co. 3 Johns. Gas. 238; Beckwith v. Frisbie, 32 Yt. 559; Adams v. Peeves, 68 N- 0.134. Or when money is paid upon a wrongful demand to prevent great and irreparable mischief. Corkle v. Maxwell, 3 Blatchf. 413; Ladd v. Southern C. P. <& Mfg. Co. 53 Tex. 172; Dickerman v. Lord, 21 Iowa, 338; Vyne v. Glenn, 41 Mich. 112; Briaqs v. Boyd, 56 N. Y. 289.</p>

Bennett, Circuit Judge. This is an action to recover agents’ commissions for the-sale of harvesting machines, and to recover damages for the-failure to perform contracts for the sale of binding twine. The action was tried before a referee. It appeared by the-evidence that the plaintiffs were in business at Et.

Benfett, Circuit Judge. Tbe facts are stated in tbe opinion. Tbis language is so broad that it carries a fee, and a remainder over is void for repugnancy. 2 Eedf. Wills, 278; ■Stowell v. Hastings, 59 Yt. 494; Bodenfels v. Schumann, 45 N. J. Eq. 383; Hall v. Paimer, 87 Ya. 354; Judevinds Bairs ■<o. Judevine, 61 Yt. 587; Downey v. Borden, 36 N. J. Law, 460, 466; Jones. v. Bacon, 68 Me. 34, 28 Am. Eep. 1, and note; Mitchell v. Morse, 77 Me. 423.

BeNNett, Circuit Judge. The plaintiff, Leroy 8. Smooch, and J. Smith Smock were partners in business for several years. In the year 1888 the firm ceased doing business, and all its assets were applied to the payment of its debts. After the application of all the assets, several firm debts, of considerable amount in the aggregate, remained unpaid. J. Smith Smock died. His estate was fully administered and settled.

Bennett, Circuit Judge. Action for personal injuries alleged to have been caused by negligence on the part of the defendant. Defendant owned ;and operated a straw-board factory. It purchased straw .from one Hansel, to be delivered by him at the factory, and put through a cutting machine. Plaintiff was employed by Hansel to aid in taking straw from loaded wagons, and ■putting it through the cutting machine.

Dice, Circuit Judge. Action of replevin for a lot of agricultural implements.

This was an action to recover against the defendant city damages the plaintiff claimed to have sustained by reason of a personal injury occasioned by the defendant’s alleged neglect to supply him with good, safe, and suitable tools and implements while working in its employ as a laborer on a certain street in the city; in consequence of the unsafe, defective, and insufficient character of which said tools and implements, on the 18th of'August, 1893, he was greatly injured…

The undersheriff of WauJceshco county had a warrant for the arrest of a man who was charged with robbery. The felon fled and the officer pursued. The officer’s horse failed. He took the plaintiff’s horse, continued the pursuit, and overtook the felon. In the pursuit, the plaintiff’s horse was over-driven and injured. The plaintiff brought action against the county for the value of the horse, and recovered judgment. The county appeals.

D. Hastings, Je., Circuit Judge. Plaintiff appealed to the circuit court for Marinette county from a judgment rendered against him in justice’s court October 21,1895. The judgment was for $36 damages and $52.24 ■costs.

PaRish, Circuit Judge. This is an action to recover damages for the destruction of a lot of hay and logging tools owned by the plaintiff by means- of a forest fire -which is alleged to have been negligently set by the defendant’s-employees upon its right of way. . ■ . - The plaintiff’s logging camp was situated upon the eastern edge of sections 13 and 24, in town 35, range 2 E., in Price county, Wisconsin.

Pabish, Circuit Judge. This is an action to set aside taxes levied on the plaintiff’s real estate in the city of Ashland, on the ground that it is ■exempt from taxation, under subd. 3, sec. 1038, E. S. ■ The facts were that the plaintiff is a corporation formed without capital stock by certain members of a Eoman Catholic religious order called the “Handmaids of Jesus Christ.” 'This order is widely distributed, and has hospitals in many cities of the northwest.

The defendants, under the name of Bayfield Agricultural Association, employed several persons to perform labor in improving their grounds and in erecting fences and buildings. Time checks given by the defendants to such laborers, for such labor, were assigned to the plaintiff, who brings this action to recover their amount, alleging that the defendants were a copartnership.

Pakish, Circuit Judge. Pursuant to a petition duly-filed,— not containing any allegation, however, of continuous work,— plaintiff brought this action under the statutes of this state, for the enforcement of a lien for labor on logs and in manufacturing such logs into lumber. The period covered by the petition for the lien and the complaint was from the 1st day of October, 1894, to the 21st day of September, 1895.

<p> Railroads: Fences: Killing of horses: Contributory negligence. </p> <p>A person in charge of horses, with knowledge of an opening in the-fence along a railway right of way, turned them into a pasture not far distant, the fences of which he knew or ought to have known had been partially destroyed by forest fires a short time previous, so that the horses readily escaped and reached said opening. Held, that he was guilty of contributory negligence which would preclude recovery for the killing of the horses by a passing; train.</p>

EeRoe to review a judgment of the circuit court for Columbia county: R. Gr. Siebeckee, Circuit Judge. This is a criminal action for the larceny of a bank draft for the sum of $310.50. The information contained a second ■count for receiving and concealing said draft knowing it to ■be stolen, and a general verdict of guilty was rendered, and ■to reverse the sentence thereon this writ of error was prosecuted.

S. Tullar,. Judge. The plaintiffs in error, Joseph Von Rueden, John Bealcmd,. and Edward Sargeant, were arrested, tried, and convicted of having, on the 15th day of June, 1896, at the town of Eagle, in Waukesha county, “ wilfully and unlawfully and maliciously interrupted and molested an assembly or meeting of people lawfully and peaceably assembled on the public highway for the purpose of listening to a certain lecture delivered by one M. J. Fanning, in said town, in this:…