Volume 97 — Wisconsin Reports

<p>PROHIBITION to the circuit court for Eau Claire county: W. F. Bailey, Circuit Judge.</p> <p>This was an action of prohibition commenced by the issuance of an alternative writ out of this court on the 3d day of April, 1897, upon motion of the Attorney General, based upon the sworn petition or complaint of Messrs. AsJibaugh and Poo-little. The object of the action was to prohibit the further-prosecution in the circuit court for Eau Claire county of certain proceedings then pending therein, wherein AsJibaugh and PooUttle were charged with having committed a criminal contempt of said court, and were threatened with immediate imprisonment therefor. Returns were in due time made to-the alternative writ both by the circuit judge, lion. W. F. JBcnley, and by the sheriff of said county, 0. II. Henry, and upon order of this court a supplemental return was made by the circuit judge. These returns were challenged as insufficient by demurrer, and upon argument the demurrer was sustained, and judgment rendered adjudging that the contempt proceedings were in excess of the jurisdiction of the court, and awarding an absolute writ of prohibition against the further prosecution of such proceedings.</p> <p>The facts which appeared by the complaint and the various returns were practically undisputed, and were, in brief, as follows: In March, 1897, the circuit court for Eau Claire county was in session, engaged in the trial of cases, the Honorable W. F. Bailey presiding. Judge Bailey’s term was to expire in January, 1898, and the election of his successor was to take place on the 6th day of April, 1897. Judge Bailey was a candidate for re-election and two other candidates, Hon. James O’Neill and F. M. Miner, Esq., were also in the field. The petitioner Aslibaugh was the editor and publisher of a, newspaper at Eau Claire, and the petitioner Doolittle was a lawyer in active practice at the same city. The campaign had become somewhat heated and acrimonious by the publication of newspaper articles pro and con. Both of the petitioners were strongly opposed to the re-election of Judge Bailey, and on the 11th day of March Mr. Doolittle published in Ashbaugh’s newspaper an article several columns in length, charging the judge with being extravagant in the management of the court, and with being partial and unfair in respect to his official conduct in the trial of causes, and with being influenced by corrupt motives.- These charges all referred to proceedings and cases already heard and decided, and not to matters then pending or on trial. On the 31st day of March an editorial article appeared in the said newspaper strongly opposing Judge Bailey’s candidacy, and summarizing the charges against him which had been made at length in the Doolittle article. On the 1st day of April following Judge Bailey made an order on his own motion requiring Messrs. H. H. Hayden and T. F. Frawley to institute contempt proceedings against Aslibaugh and Doolittle on account of the publications. TTpon tbe same day Messrs. Hayden and Frawley presented a sworn petition to the court setting forth the facts as to the writing and publication of 'the articles, and alleging that Ashbaugh and Doolittle had «circulated the articles among the officers of the court and persons summoned as jurors. Upon this petition, and on the 2d day of April, an order was made reciting that “it appears to. the satisfaction of the court that H. G. Ashbaugh and L. A. Doolittle have committed a criminal contempt of said court,” and requiring Ashbaugh and Doolittle to appear at ■3 o’clock p. m. of the same day, and show cause why they .-should not be punished for said alleged contempt, and providing for the service of the order at least two hours before «the hearing. This order was personally served shortly after 11 o’clock a. m. At 3 o’clock p. m. Ashbaugh and Doolittle ¡appeared in court. Doolittle filed an affidavit of prejudice, at the court held that no change of venue could be granted. Further time was asked for, and time was given untill 7:30 ■o’clock p. m., when Ashbaugh and Doolittle filed an affidavit .alleging the truth of the articles, and asking further time until the 5 th of April to prepare an answer. Thereupon an order was made that interrogatories be made and served, and that Ashbaugh and Doolittle appear at 10 o’clock a. m. on the 3d day of April, to which time the proceedings were adjourned. The interrogatories were made, asking whether the defendants wrote, published, and circulated the articles, .and such interrogatories were served at about 9 o’clock p. m. of the same day. At 10 a. m. upon the following day (April 3) the defendants appeared, and asked further time, which was granted, until 1:30 p. m. of the same day. Upon the assembling of the court at that time, the alternative writ •of prohibition from this court was produced, and served upon Judge Dailey. Thereupon Judge Bailey announced that he would not proceed further with the pending proceedings, but at-once made an order adjudging both Ashbaugh and Doolittle guilty of a new contempt in the immediate presence of the court, by reason of having filed their affidavit alleging the truth of the articles, and committing them to jail for thirty days, such imprisonment to commence at once. The commitment was placed in the hands of the sheriff at once, but was not executed by him.</p> <p>Upon these facts it was adjudged that both of the alleged proceedings for contempt were in excess of the jurisdiction of the circuit court, and the writ of prohibition was made absolute.</p> <p>They argued, among other things, that to constitute any publication a contempt it must have reference to a matter then pending in court, and be of a character tending to the injury of pending proceedings upon it and of the subsequent proceedings. Rapalje, Contempt, § 56; Gheadle v. Slate, 110 Ind. 301; State v. Kaiser, 20 Oreg. 50; Rosewater v. State, 47 Nefi. 630; In re Dalton, 46 Kan. 253; In re Thompson, id. 254; In re Bahama Islands (1893), App. Cas. 138; In re Press-Post, 3 Ohio N. P. 180, and cases cited by the court. Sec. 2565, R. S., is a limitation upon the power of the- court to punish for criminal contempts, and no one can be punished for such a contempt except in those cases specifically enumerated in the statute. Stuart v. People, 4 Ill. 404; Storey v. People, 79 id. 45; State v. Dunham, 6 Iowa, 245; State v. Anderson, 40 id. 207; People ex rel. Mun-sell v. Court of Oyer and Terminer, 101 N. Y. 245; In re Griffin, 1 N. Y. Supp. 7. The alleged contempt, if contempt at all, is what is known as a constructive contempt, and the legislature has the right to take away entirely the right of any court to punish for .such contempts. Indeed the legislature has the right to limit and regulate the power of lower courts to punish for contempt, whether constructive or direct in character. State v. MoOlaugherty, 33 W. Ya. 250; Rapalje, Contempt, § 10; State v. Kaiser, 20 Oreg. 50; Fx pa/rte Pob-inson, 19 Wall. 505. Prohibition is the proper remedy. Wil-liamstown v. Barge, 71 Wis. 643, and cases cited; 4Ency. of PI. & Pr. 809, 820; People v. O'Neil, 47 Cal. 109,110; Batch-■elder v. Moore, 42 id. 412; Huerstal v. Muir, 62 id. 479, 481; People ex rel. Wright v. County Judge, 27 id. 151; State ex rel. Campbell v. St. Louis Court of Appeals, 97 Mo. 276; People ex rel. Yearian v. Speirs, 4 Utah, 385; Havemeyer v. Superior Court, 84 Cal. 327; State ex rel. Ellis v. EU&in, 130 Mo. 90; State ex rel. Long v. Keyes, 75 Wis. 288, and cases cited by the court.</p> <p>contended, inter alia, that certiorari is the proper remedy to review proceedings for a criminal contempt, where no right of appeal exists. State v. Leftwich, 41 Minn. 42; In re Fanning, 40 id. 4; Taylor v. Connolly, 65 Cal. 28, 33; 4Ency. of PI. & Pr. 8; 2 Spelling, Extr. Relief, 1590. The legislature cannot limit the right of courts of record, or take from them their inherent power, to punish summarily constructive con-tempts, when the exercise of such right is essential to the administration of justice. Hughes v. People, 5 Colo. 436; Ln re Wolley, 11 Rush, 95; People v. Wilson, 64111.195; State v. Frew, 49 Am. Rep. 257; Ln re Pierce, 44 Wis. 441. The general rule is that where a publication in a newspaper being read by jurors and attendants in court would have a tendency to interfere with the proper and unbiased administration of the law, it may be adjudged a contempt and punished accordingly. State ex rel. Phelps v. Judge of Civ. JDist. Ct. 45 La. Ann. 1250; Territory v. Murray, 7 Mont. 251.</p>

<p> Foreign judgment: Fraudulent conveyances: Contemplation of insolvency: Voluntary assignments. </p> <p>31. Chattel mortgages on property in another state, executed and filed in that state prior to the making of a voluntary assignment by the mortgagor in this state, were adjudged valid by the courts of the former state in an action between the mortgagee and attaching creditors, in which the assignee was made a party by publication but did not appear. Held, that the judgment was binding upon the assignee as to tangible property whose actual situs was in the state where it was rendered.</p> <p>2. In order to render a chattel mortgage void under sec. 1693a, S. & B. Ann. Stats., because made by an insolvent debtor within sixty days prior to the making of a voluntary assignment, in contemplation of such assignment or of insolvency, the debtor, at the time of executing the mortgage, must have contemplated the making of the assignment or the institution of insolvency proceedings under the statutes relating to the discharge of insolvent debtors. A mere expectation or apprehension of inability to meet business obligations is insufficient.</p>

<p>Ejectment: Court and jury: Possession: Instructions: Tax titles: Occupancy: Res adjudicata.</p> <p>1. In an action of ejectment, where the plaintiff based his right to recover upon unlawful dispossession merely, and the defendant justified his possession under a tax deed, questions proposed for a special verdict as to the width of the lot conveyed to plaintiff by his grantor, and the width of ground he would have left if the defendant should take twelve feet off the side thereof, are held to have been properly refused, being immaterial.</p> <p>3. An instruction that “it has been determined in this case that, if the jury believe from the testimony that the plaintiff was in possession of the land in question and that he claimed it as his own, that is a sufficient title, so that he can bring this action to determine whether or not he is entitled to this strip of land as against” the defendant, upon the claim that the latter makes, was not erroneous. A determination of that point on the first appeal is conclusive in the second appeal.</p> <p>S. The question whether the plaintiff or his tenants were in occupation of the strip of land in dispute at the time the defendant made application for his tax deed is held to have been for the jury.</p> <p>4. It was not error to instruct that “if the plaintiff surrendered possession peaceably and without objection, as the defendant claimed, then the defendant was entitled to the possession of the land.”</p>

<p>Appeal from an order of the superior court of Douglas county: Chaeles Smith, Judge.</p> <p>The plaintiffs decedent was injured while in the employment of the defendant, working as a common laborer loading coal into cars upon the defendant’s coal dock at the city of Superior in the night time, by being run over by an empty car, which was being let down to the place of loading in the usual manner, but with more than usual speed. Cars were let to run down to the place of loading by their own gravity,, under the control of a brakeman. The cars were let down and loaded on several parallel tracks. At the time of the injury to the plaintiff’s decedent, the men had just completed the loading of a car, and plaintiff’s decedent and others had been directed by the foreman to go to another part of the dock in order to help about the loading of a car at that place. On his way to the place to which he had been directed he passed in the open space between two tracks until he came to a portable engine, which was at work. To avoid danger from falling coal at this point, he turned aside and passed along the side of the portable engine between the rails of one of the tracks,— not the track on which the car stood to which he was going. The exhaust steam from the engine, with steam from a leak in the feed pipe, enveloped him and obscured his vision. While in this situation a car came down the track on which he was walking and struck him, and he was injured, from which injuries he afterwards died. When struck, he had proceeded towards his destination about seventy-five feet. The approaching car should have been, but for the steam, visible to him during all this time; but he had not discovered its approach, although cars were liable to come down at any time when no cars were being loaded above. The complaint alleges that the deceased did not know or appreciate the risk to which he was exposed, nor that a car was coming. This is, in substance, the case made by the complaint. There was a demurrer to the complaint. The appeal is from an order overruling the demurrer.</p>

<p>(1, 2) Amendment of pleadings: Evidence: Stipulation of facts. (3-t)> Common carriers: Exemption from liability: Consideration: Presumptions: Burden of proof: Evidence: Negligence: Failure to ascertain contents of bill of lading. t</p> <p>1. The action of the trial court in allowing the answer to he amended. on the trial will not be reversed as an abuse of discretion merely because the new matter may be effective to defeat the plaintiff's-cause of action. If the plaintiff would be put to additional expense or would not be prepared to proceed to trial because of such amendment, he should make that fact appear to the trial court by affidavit; and if the amendment is then allowed except on such terms as to protect him, it would be error.</p> <p>2. A stipulation of facts made for the purposes of a trial, unless clearly intended to cover the whole case, does not preclude either party from giving evidence tending to establish other facts pertinent to-the issues, not inconsistent with the facts'agreed upon by the stipulation.</p> <p>3. A valid contract may be made limiting the common-law liability of a common carrier in any respect except exemption from the-consequences of negligence.</p> <p>4. To support a contract limiting the liability of a common carrier a consideration is necessary; but the presumption is that the rates for carriage are made with reference to the risks assumed, and that the rate specified in a special contract, when made, was intended to support the entire contract; hence, the want of consideration for the special exemption must be affirmatively established by the party seeking to avoid the limitation of liability.</p> <p>•5. Where the special contract limiting liability relied on was contained in the bill of lading, the presumption in favor of a consideration was not rebutted by evidence that in many cases .the same rate was charged when no bill of lading was given.</p> <p>0. Where goods, being transported by a common carrier under a special contract exempting the carrier from liability for loss by fire, “unless it can be shown that such loss occurred through negligence or default of the agent of the company,” are destroyed by fire, proof of that fact constitutes, prima facie, a complete defense to an action to recover therefor, and casts upon the plaintiff the burden of showing that the negligence of the carrier contributed to the loss.</p> <p>7. The delivery and acceptance of a bill of lading containing a provision limiting the common-law liability of the carrier raises a presumption that the shipper assented thereto, and such presumption is not overcome by evidence of ignorance of the contents of the bill arising from failure to read it or to make some effort to ascertain its contents, in the absence of fraud or the use of means to prevent the shipper from fully understanding it.</p> <p>As to the right of a common carrier to limit its oommon-law liability in cases where there is no negligence, see note to Little Rode & Ft. S. R. Co. v. Cravens (57 Ark. 112), in 18 L. E. A. 527.— Eep.</p>

EbeoR to review a judgment of the circuit court for Bay-field county: John K. Rakish, Circuit Judge. ■ The plaintiff in error was convicted of the crime of murder in the second degree, on an information which charged that he “did feloniously, wilfully, and of malice aforethought, kill and murder one William Sullivan'.” When it came to the impaneling of the jury to try the cause, it appeared that several of the persons whose names were on the general panel for the term had…

<p> Appeal: Insufficient certificate of judge. </p> <p>Upon appeal by a garnishee from a judgment in its favor for costs, because only $104.96 was allowed it as costs, held, that a certificate by the trial judge which presented as the question to be determined whether it was within the discretionary power of the court,, “on the facts as they appear in the foregoing bill of exceptions,” to reduce the garnishee’s costs as was done and on the grounds on which it was done, was clearly insufficient to answér the requirements of ch. 215, Laws of 1895, in that it failed to state the ultimate-facts on which the question of law arose, so that the court could, determine it without reference to the record.</p> <p>Authorities respecting the definiteness of a .question to be certified are collated in a note to Waco Water & L. Go. v. Waco (86 Tex. 661), in 81 L, B. A. 392. — Eep.</p>

F. Bailey, Circuit Judge. This was an action to recover for sawing 27,000 feet of lumber at $4 per 1,000, and for labor in making and hauling shingles, boarding men, and feeding teams, upon implied contract; the amount claimed by the plaintiff amounting in all to $168.51.

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

F. Bailey, Circuit Judge. The action is to recover $750 and interest, a balance claimed to be due to the plaintiff for doing the stone and brick work of a brick barn which the defendant built upon his premises, in the city of Eau Claire, m the summer of the year 1890; and $75.20 for the construction of a cistern. There was no defense against the smaller claim.

E. Bailey, Circuit Judge. The defendant, for many years prior to March 13,1895, was the owner of a jewelry store conducted in the name of A. Jackson, in Eau Claire, Wisconsin. Much of the time he was away from the store, and during all the time it was largely in charge of his son, Arthur T. Jackson. An employee by the name of Andrew Pruher assisted in such management, particularly when the defendant was away.

E. Bailey, Circuit Judge. Eor the appellant there was a brief by Wickham & Fa/rr, and oral argument by James Wickham. They contended, among other things, that the action would not lie against the defendant, who was an innocent purchaser, without a previous demand and refusal, and none was proved. Barrett v. Warren, 8 Hill, 818; Gillet v. Boberts, 57 N. Y. 28; 5 Am. & Eng. Encv. of Law, 528s; Storm v. Livingston, 6 Johns. 44.

F. Bailey, Circuit Judge.' The plaintiffs were judgment creditors of the defendant Smith to an amount exceeding $4,000, and on the 29th day of November, 1895, garnished the Pioneer Furniture Company in aid of execution. The garnishee answered, admitting that it had bought of Smith certain lumber, amounting to $1,663.47, which had all been delivered prior to the garnishment, but which had not been paid for, and that the Ranh of Eau Olavre claimed the money due for the lumber.

E. Bailey, Circuit Judge. Tbe case is stated in tbe opinion. They argued that tbe conveyance to tbe corporation was in effect a voluntary assignment, and was void for non-compliance with tbe statute and because of preferences. Gribb v. Hibbard, S., B. <& Go. 77 ~Wis. 208; Ingram v. Osborn, 70 id. 184; Si/rong v. Halk, 91 id. 29; Jameson v. Maxey, id. 563; Hill v. Mallory, 70 N. W. Rep. 1016.

<p>Appeal from a judgment of the circuit court for Eacine county: Feank M. Fish, Circuit Judge.</p> <p>The action is to recover from the defendant city a sum which was due to the plaintiff for the rental of certain hydrants, by the terms of an ordinance of the city, by which the right to construct and operate a system of waterworks for the city had been granted. There was no denial of the indebtedness claimed. But the claim was attempted to be obviated by a defense in the nature of a counterclaim, by which it was alleged that by the terms of the aforesaid ordinance it was the duty of the plaintiff to restore all streets which were in ány manner disturbed by the laying of its pipe system or in its operation, and to keep them in good repair; that by reason of the negligence of the plaintiff in the construction of its water main in one of the principal streets, at a point adjacent to a bridge in such, street, which spanned' the track of a railroad, such water main burst and parted,, wherefore the water therein rushed and flowed over and across the wall which supported the bridge, and over and along the street, destroying the wall and tearing up the-street; that the plaintiff failed and refused to restore the street and bridge; that the city repaired the damage, and restored the street and bridge, at large expense, and claims the right to withhold the rental of the hydrants as indemnity for such expense. The plaintiff replied denying that the injury was caused by any negligence on its part. This was the dominant issue in the case.</p> <p>Originally this injured street ran upon an embankment. This embankment was cut through for a railroad track. The-railroad company built revetment walls on either side, and a bridge across the cut. The testimony tended to show that the wall built on the east side of the cut was, originally, insufficient and defective in construction, and settled, and became impaired and insufficient to support and endure the service put upon it. In 1886 the plaintiff, by permission of the city, constructed its pipe line across this bridge, and operated it without difficulty. In 1892 the Belle City Street Bailway Company, by permission of the city, constructed its. roadway across the bridge, and began to operate its electric-railway and -cars over and across the bridge. The operation of such cars produced vibrations of the bridge, which caused: the water main to leak. The plaintiff made such repairs as. seemed practicable, and stopped the leak. But the repair Avas only temporarily effective. The difficulty recurred until, the catastrophe occurred. It was claimed for the plaintiff that the trouble with its pipe and the destruction of the bridge were caused by the vibrations of the bridge, which were occasioned by the passage of the cars of the electric-railway across it, which were there operated by permission of the city; that the bridge had been, in the first instance,. defectively constructed and insufficiently supported by unsuitable and defective walls, and had been permitted to become rotten, and the walls to become dilapidated; that the plaintiff had no control over, and was not responsible for, this condition.</p> <p>There was a finding for the plaintiff on the issues made by the counterclaim. Among other things, the court found: “ That the plaintiff company exercised ordinary care in the construction and operation and repairs of said water main, from time to time, and that said plaintiff was guilty of no-negligence in the premises.” There was judgment for the plaintiff for the amount of hydrant rentals which had been withheld. From this judgment the defendant appeals.</p>

Fish, Circuit Judge. Such proceedings were duly had according to law that the supervisors of the town of East Troy, Walworth county, altered a highway in such town which had theretofore existed for a number of years. Such highway was the only means of access by public road to Lake Beulah. The relators were hotel keepers and liverymen, whose business as such was injuriously affected by the alteration of the highway. Neither ■of them owned any land abutting on such highway.

<p> Administrator’s liability for sale of diseased cattle: Agency: Evidencer best and secondary. </p> <p>1. Before secondary evidence of tlie contents of a letter can properly be admitted, the party offering it must satisfactorily account for-his failure to produce the letter itself in court.</p> <p>2. Proof that a certain person had prepared a catalogue of the cattle-belonging to the estate of a deceased person, and that he answered1 plaintiff’s letter addressed to such estate in relation to such cattle, and sent one of his catalogues, and that he afterward received, money for the purchase of the cattle selected by the plaintiff and bid them in for him at the administrators’ sale, held not to be sufficient to establish that he was agent for the administrators.</p> <p>3. In order to hold the administrators personally liable in tort at common law for false representations, made by such alleged agent to. the plaintiff prior to the sale of such cattle under the order of the probate court, as to the condition and quality of the cattle sold to such plaintiff, he must, at least, show that such agent was specially authorized by them to make such representations, or else that he was, at the time, authorized to make such sale and that he made it by false representations in pursuance of such authority.</p> <p>4. In order to render administrators of a deceased resident, who, by yirtue of an order of the proper probate court, sold cattle from a herd belonging to the estate which afterward proved to be infected with tuberculosis, personally liable for injuries thereby caused to the purchaser, it is not sufficient to prove that they knew that such disease had shown itself in the herd at some former time, if at the time of the sale they had reason to believe and did believe that the disease had been entirely eradicated.</p> <p>5. The provisions of secs. 1-6, ch. 467, Laws of 1885 (sec. 1492a, S. & B_ Ann. Stats.), which make it a penal offense for any person to bring infectious or diseased animals into the state, or, after a proclamation by the governor, to receive in charge and transport and convey the same within the state, and also make the offender liable to persons injured thereby, do not apply to administrators wlm merely, under an order of the probate court, sell cattle of the estate which are so infected; nor are they liable under sec. 7, unless they have been convicted of acts or omissions by said chapter prohibited.</p> <p>Decisions as to the validity and construction of statutes respecting infected animals are found in a note to Grimes v. Eddy (126 Mo. 168), in 26 L. B. A. 638. — Eep.</p>

<p> Agency: Notice to principal: Ratification: Stated account. </p> <p>1. A person cannot be charged as principal by a statement of account for goods claimed to have been sold to his agent on his credit, -which was rendered or sent to such agent, and of which he had no notice or knowledge.</p> <p>2. The assignor for the benefit of creditors of a stock of goods, being placed in charge thereof by the assignee, bought other goods on credit, professing to act as agent for such assignee, and put them with the assigned goods and sold some of them. The assignor afterward settled with his creditors, and his goods and the proceeds of those sold were delivered to him by the assignee before any claim was made on account of the goods so purchased. Held, that such assignee did not ratify the purchase.</p>

<p> Corporate franchises assignable. </p> <p>Though they were not assignable at common law, yet under ch. 221',. Laws of 1883, as amended by ch. 127, Laws of 1891, the franchises- or rights of an electric light company were assignable to and might be acquired by a corporation organized under ch. 86, E. S. 1878, such as an electric street-railway company, in case they would be in direct aid of the business for which the corporation so acquiring them was organized. State ex rel. Milwaukee St. B. Co. v. Anderson, 90 Wis. 550, explained and overruled.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Chas. Y. BaedeeN, Judge.</p> <p>Action to foreclose a mortgage. The action is by the «executor of the last will of Johann Krause, deceased.</p> <p>On February 9, 1880, Johann Krause and Caroline, his wife, deeded to the defendant Albert Krause the premises described in the mortgage upon which this action is brought. Albert Krause is a son of Johann Krause. At the time of the' giving of the mortgage in question, Albert executed and delivered to the said Johann, his father, a bond in the penal sum of'$2,000, conditioned that if the said Albert Krause pay annually to the obligees in the bond, or the survivor of them, during their lifetime, one half of all the produce raised upon the farm, in lieu of interest upon the purchase-money mortgage given to secure the bond, and shall allow the obligees, so long as either of them shall live, the free use of all buildings upon the premises, and the free use of the garden, and the pasturage of one cow, and, at all times during the sickness of either of said obligees, procure medical attendance at his own expense, and, in case of their death, provide for their burial in a suitable manner, then the obligation to be void; otherwise to remain in full force and effect. The mortgage set out in the complaint was given as collateral security for the performance of the conditions of the bond.</p> <p>After the execution of the deed, bond, and mortgage, the said Johann and Caroline Krause continued to live on the premises until on or about October 12, 1891. It is not disputed that during all this time the defendant complied fully with the terms of the bond. About the time of the last-mentioned date, the said Johann and Caroline Krause moved from the premises covered by the mortgage, and went to live with a daughter, Mrs. Bournefiend. There is no evidence to show that this act was not entirely voluntary on their part. It was then agreed that Albert should pay $100 annually, in lieu of a part of the crops. Caroline Krause died at the home of Mrs. Bournefiend, in November, 1891. Her funeral expenses, were paid by Mr. Bournefiend. Later, Johann moved to the home of another daughter, Mrs. Robert Heidtke, wife of the plaintiff, and continued to live there until the time of his death, in July, 1891. His funeral expenses were paid by the plaintiff.</p> <p>The court found that the defendant had failed to pay the sum of $165 of such annual payments, and was indebted therefor, and $155.50 for medical attendance and funeral expenses of Johann Krause, and $57, last expenses of the mother, Caroline,— in all, $317.50. The court found due on> the bond and mortgage $377.50, as the balance due on the-annual payments, and for medical and funeral expenses of Johann and Caroline Krause, with $100 solicitor’s fees, and gave judgment for foreclosure of the mortgage. From this-judgment the plaintiff appeals.</p>

0. Ludwig, Judge. Defendant Ered Esau, for some time prior to December 26, 1895, was engaged in the wholesale liquor and drug-business in the city of Milwaukee, and was also the executor .of the estate of George Siever, deceased. The garnishee, F. Ludwig Yogel, and Charles Yon Baumbach were defendant’s bondsmen.

N. Austin, Judge. The case sufficiently appears in the opinion. They contended that the statute defining the offense, by designating one class of persons as subject to .its penalties, exonerates all others. Howell v. Stewart, 54 Mo. 400; State v. Jaeger, 63 id. 403; 23 Am. & Eng. Ency. of Law, 447.

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>The facts are fully stated in the opinion.</p>

<p>Appeal from au order of the superior court of Milwaukee county: E. N. AustiN, Judge.</p> <p>The plaintiff is an attorney at law. He attended to law business for the defendant. He sent the defendant a bill for his services, which amounted to $217.34. The bill was not paid at once, and the defendant found some fault with the amount of it. The plaintiff brought suit on it. The complaint was not served with the summons. The defendant asked time for settlement of plaintiff’s attorney, and proposed to turn out property in payment. Plaintiff’s attorney promised to see his client and inform defendant if further time could be had. No communication on the subject reached the defendant until he learned that the plaintiff had entered judgment against him for $1,318.50, with costs. The defendant at once moved to set aside the judgment on the ground that the defendant was taken by surprise by the entry of a judgment much larger than the amount claimed by the plaintiff in his bill, and pending negotiations for a settlement. The motion was denied, and the defendant appeals.</p> <p>For the appellant there was a brief by Winlcler, Flanders, Smith, Bottum & Vilas, and oral argument by J. G. Flanders.</p> <p>To the point that there was no abuse of discretion on the part of the trial court in denying defendant’s motion to open the judgment, they cited Wheeler Wilson Mfg. Go. v. Monahan, 63 Wis. 194,195; Breed v. Ketchum, 51 id. 164; Grootemaat v. Tébel, 39 id. 576.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. JohksoN, Circuit Judge.</p> <p>Plaintiff was the owner of certain real estate in the city of Milwaukee. He sold such real estate to John Veidt upon terms that the purchaser should give a purchase-money mortgage for $5,225, and fifty shares of stock in the South Side Keal Estate, Building & Loan Association, of the par value of $5 per share as a part of the consideration. The certificate of stock was transferred to plaintiff’s wife, Christliebe Kropp. It was assigned directly to her, the proper transfer made on the books of the corporation, and a new certificate issued in her name, which was delivered to the plaintiff. The purchase-money mortgage and the notes representing the indebtedness secured thereby were also made out in the name of plaintiff’s wife and delivered to plaintiff. The notes and mortgage were retained by plaintiff, and all payments made thereon were made to him up to the time of the commencement of this action.</p> <p>On the 13th day of August, 1893, the wife died, leaving as her heirs two sons, being the defendants Charles and William, Kro¡p¡p. On the 10th day of September, 1895, Adolph Doctor was appointed administrator of the estate, and thereafter he claimed a right to the purchase-money notes and mortgage and the certificate of stock mentioned, as belonging to the estate of his intestate. Thereupon plaintiff brought this action to reform the notes and mortgage, claiming that by mistake the person who made out the papers made them in the name of his wife; that the whole consideration for the real estate sold to Veidt belonged to him at the time of such sale, and that it was the agreement and intention to have the papers so made that in case of his death during the lifetime of his wife the property would go to her without the expense of probating the estate, and, in case of her death during his lifetime, the property would belong to him absolutely and without any probate proceedings; that he directed the notes and mortgage to be so made, but that by mistake they were made in the name of his wife alone.</p> <p>Defendants answered putting in issue the allegations of the complaint as to the agreement and mistake, and alleging that such papers were intentionally made to Mrs. Kropp as her own separate property and that they belonged to her at the time of her death. Defendants also counterclaimed, setting up that the corporation stock heretofore referred to was conveyed to Mrs. Kropp by direction of plaintiff; that it was a part of the transaction whereby the notes and mortgage "were so made, and that it was a part of the consideration for the sale of real estate heretofore mentioned; that the administrator demanded possession of the stock and of the notes and mortgage of plaintiff, and that such demand was refused. The prayer for affirmative relief in the answer, among other things, was that plaintiff be compelled to surrender the notes and mortgage and the stock to the defendant Doctor, as administrator of Mrs. Kropp’s estate.</p> <p>Plaintiff replied, among other things, by a denial that the certificate of stock was assigned to his wife by his direction, and alleged that the certificate and the stock represented thereby belonged to him.</p> <p>The trial resulted .in a finding that plaintiff was the owner of the real estate at the time it was sold to Veidt, as alleged in the complaint; that it was sold to John Veidt as alleged, and purchase-money notes, with the mortgage to secure the same, for $5,225, together with fifty shares of capital stock in the South Side Real Estate, Building & Loan Association of Milwaukee, Wisconsin, given in part’payment therefor; that by mistake and inadvertence a clerical error was made by the persons who drafted and prepared the instruments, by which, without the knowledge or consent of plaintiff, the name of his wife, Christliebe Kropp, was inserted in the certificate of stock and in the notes and mortgage as the sole owner, when the intention of all the parties interested, at the time of the execution of the notes and mortgage and the assignment of stock, was that the papers should be, and all such parties believed that they were, made payable to plaint-. iff and his wife as such, and to the survivor of them, so that the property would belong solely to the wife, only in the event of plaintiff dying in her lifetime, and solely to plaintiff in case of her death during his lifetime, the object being to avoid the expense of probating the estate of plaintiff in case of the wife surviving. There were further findings of fact covering all the issues raised by the pleadings.</p> <p>As conclusions of law the court found that the claim of the defendants in respect to the ownership of the notes and mortgage and the certificate of stock was a cloud upon his title thereto, and that plaintiff was entitled to the relief prayed for in the complaint, and to- a decree establishing his ownership of the notes and mortgage and the certificate of stock, free from any claim of the defendants, and reforming the instruments by adding the name of the plaintiff to the name of Christliebe Kropp, wherever the name appears in such instruments, or either of them, and by otherwise reforming the same so as to make them by their terms the property of J. Christopher Kropp and said Christliebe Kropp as husband and wife, or the surviving one of them, and so as to make the same conform to the intention of the parties as the court found the facts to be; and the defendants were ordered to deliver all of such property to the plaintiff, and all sums or amounts received or collected thereon.</p> <p>Defendants filed exceptions to the findings of fact and conclusions of law, and thereafter judgment was rendered in plaintiff’s favor, from which defendants appealed.</p> <p>argued, inter alia, that the plaintiff was not entitled to relief in respect to the stock, because the complaint did not ask it, and there was no proof of any mistake in respect to it. Hyland v. Hyland, 19 Oreg. 51; Anderson v. Logan, 105 N. C. 266; Flint v. Jones, 5 Wis. 424. Proof of mistake in the notes and mortgage was not sufficient. Hu/psoh v. Resell, 45 N. J. Ecp 657. The transaction was a mere voluntary gift to the wife. Gom-stoeh v. Goon, 135 Ind. 640; Eaton v. Eaton, 15 Wis. 259; Sherwood v. Sherwood, 45 id. 357•,-Petesoh v. Hambach, 48 id. 443. ’</p> <p>They contended that there was no gift to the wife, because there was no delivery. Orooh v. First Hat. Ranh, 83 Wis. 31, 39; 8 Am. & Eng. Ency. of Law, 1322; Wileox v. Matteson, 53 Wis. 23; Brunn v. Sohuett, 59 id. 260; Wilson v. Ca/rjoenter, 17 id. 512; Wes~ ierlo v. De Witt, 36 N. T. 340; Gra/y v. Barton, 55 id. 72; 2 Schouler, Pers. Prop. § 66; Young v. Young, 80 N. T. 422.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge.</p> <p>The facts are stated in the opinion.</p>

<p> Judgment under warrant of attorney: Where may be entered: Attorney’s fees, stipulation for. </p> <p>1. A general power of attorney in a judgment note, authorizing the entry of a judgment thereon by confession “in any court of record,” and the issue of execution, may he executed, not only in the state where the note was made, but in any state in the Union.</p> <p>2. A clause in such a note, made by residents of Wisconsin when in Illinois, whereby they waive the benefit of the Illinois exemption laws, is not sufficient to show an intention to limit the operation of the warrant to that state, and does not have that effect.</p> <p>3. A clause in such a judgment note authorizing ten per cent, attorney’s fees to be included in the judgment, in addition to the amount due on the note, does not render the judgment void as to the creditors of the maker, unless such fees are shown to be unreasonable and inequitable,in fact.</p>

<p> Voluntary assignment: Allowance of claims. </p> <p>1. Upon dissolving a partnership, one of the partners retired, severing all connection with the firm, though allowing the firm name to remain unchanged, and leaving his share of the capital in the business until a specified date, but relinquishing such share to a third person, and before that date the firm made a voluntary assignment in favor of creditors. Held, that, though the remaining partners had bound themselves to pay over to such third person the share of the retiring partner, yet she could not prove up her claim thereto in competition with the creditors of the firm.</p> <p>2. The claim of such third person, as filed, was for $6,000, the capital invested by the retiring partner, “or such part thereof as may be found to be remaining . . . which may not have been withdrawn or lost in the business.” Held, that being conjectural and uncertain, it was properly stricken from the files without prejudice.</p>

H. JOHNSON, Circuit Judge. The appeal is from an order which dissolves an interlocutory injunction. The plaintiif is a dealer in incandescent gas burners, mantels, and appliances. The defendant the Backus Heating Company is a rival dealer in like goods, which it purchases from the defendant the Welsbach Light. Company. The defendant Lawrence is the manager of the Backus Heating Company.

<p>Appeal from a judgment of the circuit court for Waukesha '©ounty: JaMes J. Dice, Circuit Judge.</p> <p>■ Prior to January, 1896, Waukesha was a village' with a special charter, and divided into two school districts, in which the district system of schools was enforced. In January, 1896, the village was duly incorporated as a city of the fourth class, under ch. 326, Laws of 1889, and the amendments thereto. The defendant was elected mayor of said new city, and declined to appoint a board of education, whereupon this action was brought to compel him to appoint such board. Sec. 113, ch. 326, aforesaid, as amended by sec. 34, ch. 312, Laws of 1893, is as follows: “ In every city which shall adopt this act for its government, if there shall be at the time of such adoption a board of education or school board, elected by the people under the provisions of its charter, or where the school-district system is in force, the election and organization, powers and duties of such board shall not be affected by this chapter, but such system shall continue as the law of such place, until changed by a vote of the electors of the city. In all other cities governed by this act, the board of education shall consist of one commissioner from each ward and three from the city at large, to be appointed by the mayor and confirmed by the common council.” The circuit court held that it was the duty of the mayor to appoint the board of education, and entered judgment directing him to make such appointments. Erom this judgment the mayor appeals.</p>

<p>Appeals from a judgment of the circuit court for Calumet ■county: Geo. W. Bübnell, Circuit Judge.</p> <p>This action was brought by the heirs at law of one Owen McITugh, deceased, against Patrick McCole, executor of his last will and testament; S. Q. Messmer, as bishop of the Roman Catholic diocese of Green Bay; Bridget Carney/ John O'Bow'ke, and Frank McGrath, as trustees of the St. Augustine’s Roman Catholic Church of Chilton, Calumet county, Wisconsin; C. C. Grafton, as the Protestant Episcopal bishop of Fond du Lac, "Wisconsin; and the Catholic Orphan Asylum at Green Bay, Wisconsin, — to obtain the judgment of the court as' to the intent, meaning, and legal effect of the will of said Owen McHugh, deceased, and especially with reference to the bequests and devises contained in paragraphs 4 to 7, inclusive; and to ascertain whether said provisions were void, and whether the persons named as legatees and devisees in said paragraphs take anything thereby, or are entitled to receive and take the several legacies and devises provided thereunder, and whether the executors of the deceased are entitled, under and by the terms of the will, to sell the lands of the deceased, and out of the proceeds thereof to pay said several sums to the persons therein named, as provided by the will, or whether said' property should descend or pass to the heirs at law of the-testator or his personal representatives for the benefit of his distributees.</p> <p>It appeared that the executor refused to bring an action for these purposes, or to participate therein; that one of the-heirs at law, Bridget Carney, refused to join- as plaintiff, and was therefore made a defendant. The plaintiffs assert several grounds of invalidity or illegality in respect to the provisions in paragraphs 4 to 7 of the will, inclusive. It was alleged that the testator left personal property sufficient to pay his debts, together with his funeral expenses, but that Patrick McCole, the executor, applied to the county court of Calumet county for an order or license authorizing and empowering him to sell the real estate of the testator, and to pay the proceeds oyer to the devisees and legatees mentioned in said will.</p> <p>There were answers put in by the defendants, raising substantially the same issues, in which it is conceded that the executor, Patrióle MoOole, applied to the county court of Calumet county for the purpose aforesaid, and insisted upon the validity of all the paragraphs of the will numbered 4 to-7, inclusive, but denied that the testator left personal property sufficient to pay his debts and the cost of administration, and, except as expressly admitted, denied each and every allegation of the complaint.</p> <p>The testator bequeathed $1,000 to his daughter Bridget Carney, $600 to his daughter Hannah Daugherty, and $300i to his grandson Joseph Daugherty,■ and the provisions of the fourth to the seventh paragraphs of the will, inclusive, are as follows, namely: (4) I do give and bequeath unto the Protestant Episcopal bishop of Eond du Lac, in the state of "Wisconsin, the sum of $300, “ to he used hy him for the benefit and behoof of the Protestant Episcopal Church of said diocese of Eond du Lac, Wisconsin.” (5) I do give and bequeath unto the Roman Catholic bishop of the diocese of Green Bay,. Wisconsin, the sum of $4,150, the said sum “ to be used and, applied as follows: Eor masses for the repose of my soul,, two thousand dollars; for masses for the repose of the soul of my deceased wife, Mary McHugh, the sum of one thousand dollars; for the repose of the soul of my deceased son, John McHugh, $500; for the repose of the soul of my deceased daughter, Katie McHugh, the sum of $100; for masses for the repose of the souls of my father and mother, Owen and Hannah McHugh, $50; for the Gatholio Orphan Asylum at Green Bay, Wisconsin, the sum of $500.” (6) I do give and bequeath unto the trustees of the Roman Catholic Church at Chilton, Calumet county, Wisconsin, to wit, St. Augustine Church, to be used for the benefit of said church, and in repairing the same, the sum of $500. (7) I do give, grant, bequeath, and devise all the rest, residue, and remainder of my estate, real or personal, “ to the Roman Catholic bishop of G-reen Bay, Wisconsin, to be by Mm used for the benefit and behoof of the Roman Gatholio Church.”</p> <p>Upon trial by the court it was found that the testator made his will with the provisions stated, and that it had been admitted to probate; that the defendant G. C. Grafton is the Protestant Episcopal bishop of Fond du Lac, in the state of Wisconsin; that S. G. Messmer is' the Roman Catholic bishop ■of the diocese of Green Bay, Wisconsin, which said diocese includes the county of Calumet; that St. Joseph's Orphan Asylum of Green Bay is and was duly incorprated under the laws of the state of Wisconsin at the time of the making and publishing of said will, and was and is the only Catholic orphan asylum in said city; that the Roman Catholic bishop, the vicar general of the diocese of Green Bay, the pastor of the congregation of St. Augustine, together with John O'Rourke and Frank McGrath, are the trustees of St. Augustine’s Church, Roman Catholic Church of Chilton.</p> <p>The court, as conclusions of law, affirmed the validity of •all the provisions of the will except the sixth paragraph and so much of the fifth paragraph as disposes of $3,650, to be used and applied for masses for the repose of the souls of the persons therein named; and judgment was rendered accordingly.</p> <p>The plaintiffs appeal from that part of the judgment upholding the bequest to the Protestant Episcopal bishop of Fond du Lac of $300, and the provisions sustaining the seventh or residuary clause of the will, and ordering and adjudging the rest, residue, and remainder of the testator’s ■estate to be assigned to S. G. Messmer, the Roman Catholic bishop of the diocese of Green Bay,for the benefit and behoof ■of the Roman Catholic Church of his diocese. There was a cross appeal by the defendant PatrickMcCole, the executor •of the testator, from so much of the judgment as declared that part of -the fifth paragraph of the will bequeathing •$3,650, to le used and applied for masses as therein specified, void for indefiniteness and uncertainty, and from the failure of the court to render judgment in accordance with said bequest.</p> <p>They argued, inter ■alia, that the will showed the intention of the testator to be to disinherit those of his heirs not specially provided for, and to make a gift of a specified sum to the Protestant bishop •of E. and of the remainder to the Catholic church, of which he was a member. His will is simple and certain, and effect should be given to his ascertained intent when it contravenes no law. The gifts are direct to the donee, one being to the trustees of a particular church, and the other to the bishop, who is ex officio trustee of the diocesan property. A gift to the trustees of a corporation is a gift to the corporation itself. Subd. 9a, sec. 20015, S. & B. Ann. Stats.; Ileirs v. Yosburg, 59 Wis. 533; Mannixv. Pitrcell, 46 Ohio St. 102; 15 Am. St. R. 562; In re First Presb. Soc. 106 H. T. 251. The will created no trust. It contains no explicit declaration of trust, nor anything showing an intention to create ■one. Beaver v. Beaver, 117 U. Y. 421; Buppel v. Schlegel, 55 Hun, 183; Yanderveer v. McEane, 11 H. Y. Supp. 808; Inre Howard’s Estate, 25 id. Ill; Seda v. Huble, 75 Iowa, 429; In re Baches’ Will, 30 U. Y. Supp. 394; Matter of Hagenrneyer's Will, 12 Abb. N. C. 432; 3 Am. & Eng. Ency. of Law, 131, note 4; Elmsley v. MoAden, 18 Grant Oh. 386; Comm'rs of ■Charitable Donations v. Walsh, 7 Ir. Eq. 34; Att’y Gen. v. Hall, [1896] 2 Ir. Hep. 291; Peed v. Hodgens, 7 Ir. Eq. 17; Hess v. Singles, 114 Hass. 56. The bequest for masses was valid. It was intended as a gift, and not in any sense as a consideration. Dodge v. Williams, 46 Wis. 70; Cassoday, "Wills, §§ 594, 640. If that is void the sum designated falls into the residuum and does not go to the heir. 1 Jarman, Wills, 635; Hawkins, Wills, 44; Sec. 2279, S. & B. Ann. Stats.; Smith v. Gurtis, 29 N. J. Law, 345; Prescott v. Prescott, 7-Met. 141; In re Estate of Pierce, 56 Wis. 560; Scott v. Westy 63 id. 570; Hewman v. Waterman, id. 616; Hiles v. Atlee, 90 id. 72; Cruilcshanlc .v. Home for the Friendless, 113 N. Y„ 337.</p>

<p> Appeal from order granting new trial. </p> <p>An order granting a new trial after judgment is not now appeal-able. Chapter 380, Laws' of 1897, has no application to such a case. Davison v. Brown, 93 Wis. 85, followed.</p>

<p>Appeal from a judgment of the circuit court for Dane county; E. Gr. SiebecKee, Circuit Judge.</p> <p>This was an action of ejectment. It was tried by the court and resulted in findings of fact and conclusions of law, covering all the issues raised by the pleadings, which may be stated in substance as follows: On the 12th day of February, 1840, Eamsay McHenry, a resident of the state of Maryland, was the owner-in foe simple of the lands described in tbe complaint, situated in Dane county, Wisconsin, which he on that day, by deed with full covenants, conveyed to George H. Slaughter. At the same time George H. Slaughter, by mortgage, conveyed the lands back to Eamsay Mc-Henry to secure the payment of $720. Both deed and mortgage were duly recorded in the proper office in Dane county, Wisconsin. George H. Slaughter entered into the actual possession of the lands and remained in such possession till he surrendered, the same to Calvin G. Williams, as hereinafter mentioned. On the margin of the record of the mortgage the following words appear: “ This mortgage canceled by agreement, see pages 303, 304, vol. 4 of deeds. I. W. Bird.” At the pages referred to appears a record which was offered in evidence, purporting to be of an instrument executed August 5,1843, witnessed by one witness and duly acknowledged in this state, signed by Eamsay McHenry by James McHenry Boyd, his attorney in fact, and George H. Slaughter, referring to the before-mentioned deed and mortgage by way of recitals, and declaring as follows : “ By consent and agreement of the parties to said instruments they are hereby canceled and held for naught.” The only proof of the authority of James McHenry Boyd to execute any instrument for and in the name of Eamsay McHenry is a record offered in evidence, purporting to be of a power of attorney executed by Eamsay McHenry to James McHenry Boyd, April 29, 1843, and acknowledged before a notary public in the state of Maryland. The record bears date August 3, 1843.</p> <p>A record from the proper office, dated August 6, 1843, was received in evidence, purporting to be of a deed executed August 4, 1843, in this state, and duly witnessed and acknowledged, signed by Eamsay McHenry by his before-mentioned attorney, conveying the lands in question to Gabriel T. Long in trust, first, for the benefit of Mildred Ann Slaughter and subject to her control and disposal during her coverture with George H. Slaughter; second, after her death, in trust for George H. Slaughter, upon like condition; third, upon the death of George H. Slaughter, in trust for the benefit of the heirs of George H. Slaughter and Mildred Ann Slaughter, his wife. A record also was offered in evidence, and received, of what purports to be a mortgage executed at the same date as the trust deed, whereby Gabriel T. Long, trustee, conveyed the land to Ramsay McHenry to secure the payment of $1,023.50.</p> <p>After the trust deed purports to have been made, the following mortgages, affecting the premises, and together covering all the premises in question, were made: May 10, 1818, George H. Slaughter, Mildred Ann, his wife, and Gabriel T. Long, trustee, to Calvin G. Williams, to secure the payment, of $350, recorded September 23, 1818; September 16, 1818, between the same parties, to secure performance of the conditions of a bond, recorded September 26, 1818; October 23, 1817, Gabriel T. Long, George H. Slaughter, and Mildred Ann, his wife, to Edward Campbell, to secure $111.83, recorded October 25,1817. The several mortgages were foreclosed in chancery, all the mortgagors being made parties defendant. A judicial sale was made to Calvin G. Williams pursuant to the judgment of foreclosure rendered as to each such mortgage. Each such sale was confirmed and a sheriff’s deed was duly issued to said Williams, and recorded, pursuant to each such sale, whereby, on or before March 27, 1857, he became possessed of all the title to the premises in question, and he was thereafter let into possession of such premises under said deed in 1857, and he and those claiming under him have been in continuous, uninterrupted, and adverse possession of the land from that time down to the commencement of this action.</p> <p>May 3, 1858, Thomas C. Baker duly recorded a tax deed covering the lands, which deed was duly issued to him on the tax sale of 1855 for delinquent taxes on the lands for the year 1854. The title thus conveyed to Baker thereafter, through mesne conveyances, the last being recorded January 19, 1860, was vested in Calvin G. "Williams. The title which Williams obtained through the conveyances to him, before mentioned, passed to his heirs upon his death, which occurred prior to 1868, and thereafter, through various conveyances, the last being a deed with full covenants from Jacob Lenz, dated October 15,1868, recorded November 13, 1868, the title to the lands passed to and became vested in defendant.</p> <p>When the deed from Lenz to defendant was made the lands were inclosed, and defendant, under such'deed, entered into possession of such lands, claiming title thereto by virtue thereof, exclusive of any other right, and has ever since been in such possession, exclusive, continuous, and adverse to the whole world. This action was not brought till the expiration of more than ten years after November 1, 1878. Defendant took possession of the premises as aforesaid without notice of any adverse claim thereto whatever. George H. Slaughter died January 4,1894. Mildred Ann, his wife, died October 10,1890. Plaintiff is their son and only heir at law. Under the laws of the state of Maryland, at the time of the execution of the pretended power of attorney from Eamsay McHenry to James McHenry Boyd, it ivas essential to the conveyance of lands in that state that the instrument of conveyance be acknowledged according to the laws of that state. Such power of attorney was hot so acknowledged.</p> <p>There were some other facts found by the court, but they are omitted as not necessary to the questions discussed in the opinion and not affecting in any way the result.</p> <p>As conclusions of law the court found that by the deed of February 12, 1840, to George H. Slaughter, he became the owner in fee of the premises in question; that the cancellation instrument executed thereafter did not affect such title; that Calvin G. Williams acquired, through the sheriff’s deeds on foreclosure, a good title in fee-to the lands; that by the terms of the trust deed the trustee held the legal title, subject to the control of Mildred Ann Slaughter, and that the mortgages made by such trustee, Mildred Ann Slaughter, and her husband convejmd the whole estate to the mortgagees as security; that defendant, by reason of the facts, through the foreclosure proceedings, the sheriff’s deeds based thereon, and the chain of title therefrom down to him, became the owner in fee simple of the lancls in dispute, October 5, 1868, and has so continued down to the present time; that Calvin G-. Williams rightfully re-enforced his title by the Baker tax title, and that such title, by reason of the facts, inured to the benefit of the defendant and cut off the rights of plaintiff, if he, or those under whom he claimed, had any at the time of the making of the tax deed; that plaintiff’s action is barred by the statute of limitations of this state, and that defendant is entitled to judgment.</p> <p>Judgment was entered in accordance with the findings and conclusions, and the plaintiff appealed therefrom on exceptions duly filed.</p> <p>Among other things, -they contended that the title to the land was in McHenry as mortgagee, and that the agreement of cancellation established the title absolutely in him. Terr. Stats, of 1839, p. 257, sec. 53; Tollman v. Ely, 6 Wis. 242; Marvin v. Titsworth, 10 id. 320; Hutchins v. Da Costa, 88 id. 371; Telford v. Frost, 76 id. 174; Eneeland v. Schmidt, 78 id. 348; CP Donnell v. Brand, 85 id. 101. The mortgage given by the trustee to his grantor, and the subsequent mortgages by him and the life tenants, conveyed no more than the life estate. R. S. 1878, sec. 2202; R. S. 1858, ch. 86, sec. 4; Melms v. Pdbst B. Co. 93 Wis. 140; Patiison v. Babcoeh, 130 Ind. 474; Brant v. Yirginia C. & I. Co. 93 U. S. 326; TElna Ins. Co. v. Brodinax, 48 Fed. Rep. 892. The purchaser at the sale under foreclosure of the latter mortgages, under whom the defendant claims, took only the title of the mortgagors. S. & B. Ann. Stats, secs. 2212, 3169; Pelton v. Farmin, 18 Wis. 223; Whitney v. Robinson, 53 id. 309,314; 2 Jones, Mortgages, § 1646. The defendant’s possession could not become adverse to the plaintiff as remain-derman until the death of the survivor of the life tenants. Barrett v. Btradl, 73 Wis. 385; Falclc v. Marsh, 88 id. 683; Mettler v. Miller, 129 Ill. 643; Elder v. McClaskey, 70 Fed. Eep. 529.</p>

<p> Fraudulent conveyances: Garnishment in aid of execution: Evidence: Judicial notice: Appeal. </p> <p>1. In. a garnishment proceeding in aid of his execution, a judgment creditor may attack as being fraudulent a transfer of property by the judgment debtor to the garnishee.</p> <p>3. In such garnishment proceeding the court will take judicial notice of the proceeding and judgment before it in the original action, and therefore the plaintiff need not formally offer, the record thereof in evidence at the trial.</p> <p>3. The objection that the plaintiff failed to offer such record in evidence, in such a case, cannot be taken for the first time in the appellate court.</p> <p>4. Where, in such a case, the evidence tended to show that the debt- or’s transfer of property to the garnishee was fraudulent, and the testimony of the garnishee was indefinite; and when required to produce his books and papers containing an account of his transactions with the debtor he failed to do so, held, that a finding that the transfer was fraudulent would be sustained.</p>

<p>Appeal from an order of the superior court of Milwaukee county: R. 1ST. Austin, Judge.</p> <p>Replevin for' a piano. The complaint is chary in its statement of the facts constituting the supposed cause of action, but it was not challenged by demurrer. The answer is a general denial, with a statement of facts such as, in the opinion of the pleader, show a complete defense. Indeed, so strong is his conviction of the, completeness of the defense stated, that he goes on to say, in his answer, that the defendant “ demurs to the plaintiff’s cause of action? The plaintiff at once moved that certain parts of the answer be made more definite and certain, and that certain other parts be-struck out as irrelevant and frivolous. On the hearing of the motion, the defendant raised the point that the complaint was defective, and failed to state a cause of action. The court took that view of the matter, and made an order in form as sustaining a demurrer to the complaint, with leave to the plaintiff to amend his complaint. The appeal is from that order.</p>

0. Ludwig, Judge. Plaintiff Pfister commenced an action in the superior court of Milwaukee county to recover from defendants, as copart-ners, $47,000. Such proceedings were duly had in the action that the personal property of the defendants, located in the ■city of Milwaukee, was attached and thereafter sold for about $7,000. After such sale, judgment for plaintiff was entered by default for $41,833.44.

N. AustiN, Judge. The facts are stated in the opinion. They argued that the election by the defendant to have certain work done was irrevocable, and its acceptance by plaintiffs completed the contract. Cwrran v. Rogers, 35 Mich. 221; Bishop, Cont. § 784; Ricker, Lee <& Co. v. Collins, 81 Tex. 662.

H. Johnson, Circuit Judge. This is an action against Douglas, as principal, and the defendants Rice and Mitohel, as sureties, upon a guardian’s bond.

H. Johnson, Circuit Judge. The defendant, Morris Lesser, and one Barnet Wisotzky were partners, under the firm name of Lesser & Wisotzky. In May, 1883, they executed at Milwaukee, Wisconsin, to Simon Kahn, since deceased, their promissory note for $3,000, payable on demand, with interest at seven per cent, until paid. July 30, 1883, they executed to him a similar note for $1,000, payable on demand, with like interest.

H. JohusoN, Circuit Judge. This is an action by the assignee for the benefit of its •creditors of an insolvent corporation, the Reliance Wire & Iron Works, to collect from the defendant $1,000, the amount of an alleged unpaid stock subscription for ten shares of the stock of the corporation.

Appeals from orders of the circuit court for Milwaukee ■county: I). H. Johnson, Circuit Judge. The allegations of the complaint, aside from such as refer to the capacity in which the parties appear, are in substance as follows: On the 28th day of August, 1893, plaintiffs were creditors of George C. Cribb. On that day said George C. Cribb made a voluntary assignment for the benefit of his creditors under the laws of this state.

<p> Parol evidence to show that an absolute assignment is merely a pledge: Insurance: Conditions as to title and false representations. </p> <p>3. Parol evidence is admissible to show that an assignment of a land contract by the purchaser, though absolute in form, was merely a pledge.</p> <p>3. A policy of insurance containing a provision that it was understood that the assured held title to the property under a land contract, loss payable to the vendor as his interest might appear, and that the policy should be void if the interest of the assured was other than unconditional and sole ownership, or if the building was on ground not owned by the assured in fee, is held to be void, where it appeared that, in fact, the assured was a mere pledgee of the land contract, and had at the time of the loss an insurable interest much less than the amount of the policy, and that the pledgor was still in possession of the property under the contract.</p> <p>3. Under a clause in such policy declaring it void in case of any false swearing by the assured relating to the insurance after the loss, a statement made by the insured under oath in his proofs of loss, that the insured property belonged to the vendor subject to a land contract held by the insured, and that no other person had any interest therein, vitiates the policy if, in fact, another person is in possession under such land contract, and the insured holds the contract only as pledgee.</p>

<p> County courts, jurisdiction of: Assigning real estate. </p> <p>When a person dies leaving real and personal estate which is disposed of by his will, the county court of the county where the testator resided at that time has jurisdiction to entertain proceedings for the probate of that will and for the settlement of the estate, and, on the conclusion of such settlement, to make a final order distributing the remaining personalty, if any, and assigning the real estate in accordance with the provisions of the will.</p>

Appeals from an order of the superior court of Milwaukee county: Geo. E. SutheelaND, Judge, Appeal from an order of the circuit court for Milwaukee county: D. H. JohNsoN, Circuit Judge.

<p> Mortgage, pledgee of may foreclose: Evidence: Parties: Statute of frauds: Deficiency. </p> <p>1. The pledgee of a mortgage may foreclose the same, and recover the whole amount due thereon.</p> <p>2. One to whom a mortgage is assigned as security is an assign, and may exercise an option given by such mortgage to the mortgagee or his assigns to deem and declare the whole amount of the principal sum due, on default in payment of principal, interest, or taxes.</p> <p>8. Parol evidence, though inadmissible to vary the terms of a written agreement, is yet admissible to show a greater consideration than is expressed in a conveyance, or to show to whom it is to be paid; and it is therefore competent to' show by parol that the grantee in a deed assumed to pay an existing mortgage on the premises conveyed, as a part of the consideration.</p> <p>4. Such a parol promise by the grantee is not within the statute of frauds, as it is not a promise to pay the debt of another, but one to pay his own debt to a person other than his creditor. Such promise is valid, and the person to whom the money is to be paid may maintain an action upon it in his own name.</p> <p>5. A grantee of land who has assumed to pay an existing mortgage thereon, being ultimately liable for the whole debt, cannot complain if, in an action to foreclose the mortgage, no judgment for deficiency is rendered against one who, in transferring the mortgage, indorsed the mortgage note, such indorser not being jointly liable with him.</p>

<p> Master and servant: Negligence: Defective machinery: Proximate cause: Court and jury: Inconsistent findings. </p> <p>1. In an action for an injury by negligence, an instruction that “proximate cause means the direct, the immediate, the near cause, or the nearest cause,— the direct cause of the accident,” is erroneous. Neither time nor distance is an essential element of proximate • nause, but it may be defined as the efficient cause,— that which acts first, and either immediately, or through other causes set in motion by it, produces the result.</p> <p>■2. Negligence is the proximate cause of an injury only when such injury is the natural and probable result of it, and in the light of attending circumstances ought to have been foreseen by a person of ordinary intelligence and prudence.</p> <p>■3. It is for the court to say, as a matter of law, what constitutes “proximate cause ” in the law of negligence, and for the jury to find whether the defendant is legally chargeable with having set it in motion in the particular case.</p> <p>4. An employee of mature years, engaged in the operation of machinery, is bound to know of and comprehend all the dangers of his employment which are open and obvious to a person of ordinary understanding arid experience, and, even though he is not possessed, of ordinary intelligence and capacity, the liability of his employer to him is not increased thereby if he is not chargeable with knowledge of that fact.</p> <p>5. A finding in the special verdict, in an action by an employee of a malting factory for an injury sustairied by falling upon uncovered machinery after being rendered unconscious by the fumes of gas-.escaping from a kiln in a room below where he was at work, to the effect that sulphur fumes in dangerous quantities escaped to the place where he was working, and that the defendant might reasonably have anticipated such danger, and, in the exercise of ordinary care, should have known and have informed the plaintiff of it, is in direct conflict with another finding that the fumes had never before escaped in dangerous quantities to that place, and that the person who set the plaintiff at work and who had charge of the kiln did so in the customary manner, and that he was free from negligence.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: I). IT. JohesoN, Circuit Judge.</p> <p>The complaint alleges, in effect, the following facts: On February 23, 1891, the defendant cabled to the plaintiff, requesting him to come at once to Milwaukee for the purpose of preparing and submitting to him a model for a soldiers’ monument, to be erected at such place in Milwaukee as the defendant should designate. The plaintiff, in pursuance of such request, prepared and submitted designs for such a monument. At the suggestion of the defendant an advisory committee was selected, of which he was chairman, and the defendant, with the committee, approved of the designs so prepared by the plaintiff. On May 25, 1891, the defendant made and entered into a contract with the plaintiff whereby the plaintiff agreed' to make and complete for the defendant a soldiers’ monument, consisting of four figures in bronze, and a suitable pedestal of stone, and, when completed, to erect the same at such place in Milwaukee as should thereafter be designated by the defendant,— which monument should correspond to such model theretofore examined and approved. The contract also provided that the plaintiff should commence and continue work thereon until he should have it fully completed to the satisfaction of the committee, together with the pedestal of stone, upon which the bronze figures were to be placed, satisfactory to the committee; and the defendant, in consideration thereof, promised and agreed to pay the plaintiff the sum of $25,000 fon such work, when completed to the satisfaction of the committee, and placed in position in Milwaukee; and he further agreed to advance, from time to time, such sums of money as might be needed by the plaintiff to pay his expenses as he progressed with the work. ■ The plaintiff, in July, 1891, entered upon the performance of the contract. As the work progressed, and as he needed money to defray expenses, the defendant advanced and paid to the plaintiff thereon, in all, $5,511. The plaintiff proceeded with the work with due diligence, and gave his exclusive time and thought thereto, and completed a half-size model of the same, ready for shipment to Milwaukee. The plaintiff has keen ready and willing to perform his part of the contract, but the defendant had refused to perform his part thereof, or allow the plaintiff to proceed with the performance of his part of the contract. Judgment was demanded for $18,000.</p> <p>The defendant answered by way of admissions and denials, and alleged, in effect, that neither the defendant, nor any person authorized by him, ever made or subscribed any contract or agreement or note or memorandum thereof, in writing, with the plaintiff, for the making or completion of a soldiers’ monument, or any other monument, of any kind or description whatever, or for a suitable or any pedestal to such monument, or for the erection of any monument in Milwaukee or elsewhere; that the only agreement which tbe defendant ever made with the plaintiff, relating to a soldiers’ monument and pedestal to be erected in Milwaukee or any other place, was oral, and by its terms was not to be performed within one year from the making thereof.</p> <p>At the close of the trial the jury returned a verdict to the effect (1) that it was not the agreement of the parties that the defendant should pay the plaintiff the cost of the construction of the monument, not to exceed $25,000; (2) that the defendant, at the time of ordering the designing and construction of the monument in question, did agree to pay for the same the sum of $25,000; (3) that it would have cost the plaintiff, to have finished and put in place the monument originally contracted for, including the pedestal thereof, $11,600; (4) that the pecuniary value to the plaintiff of the plaster cast made and retained by him, after deducting the expenses incurred by him on account thereof, after he had been notified not to proceed with the contract, except to the extent that might be necessary for the preservation of any work capable of being preserved or used thereafter, was $684.</p> <p>Upon such verdict the court ordered judgment in favor of the plaintiff and against the defendant for $7,195, with interest thereon from the time of the commencement of this action, and judgment was entered thereon accordingly. From that judgment, and the whole thereof, both parties appeal to this court.</p> <p>They argued, inter alia; that the unsigned memorandum of agreement did not express the contract as understood by either party and was not supported by any oral testimony, and it was not admissible as substantive evidence. Fdazer v. Streioh, 92 Wis. 505; Grand Fapids Ghair Go. v. I/yon, 73 Mich. 438; Vasibinder m. Metoalf, S Ala. 100. The contract sued on was by the manifest understanding of the parties not to be performed within one year. This is shown by'the testimony, and the court erred in holding as matter of law that it was not within the statute of frauds. Birch v. Earl of Liverpool,, 9 Barn. & C. 392.; Hinoldey v. Southgate, 11 Yt. 428, and cases cited by the court.</p>

<p> Guaranty, construction of: Statute of frauds: Parol evidence. </p> <p>1. Parol evidence is admissible, in an action upon a written guaranty of the “account” of another for a stated sum, to show that the word “account ” refers to an indebtedness about to be created and not to one already existing.</p> <p>2. The word “ account ” in a guaranty of the account of another, when it refers to an indebtedness about to be created, sufficiently.expresses the consideration to satisfy the statute of frauds.</p>

<p> Mortgage: Foreclosure by advertisement: Sale, by whom and how made: Certificate of sale: Deed. </p> <p>1. Where a power of sale on default, contained in a mortgage, authorizes the mortgagee, “her heirs, administrators, executors, or assigns,” to sell the premises at public auction, pursuant to the statute, but does not appoint any particular person to make the sale, it may, under sec. 3528, E. S., be made by the sheriff, under sheriff, or a deputy sheriff of the county. In making such sale the relation to it of each such officer is official and not personal, and a sale advertised to be made by N. D., sheriff, may lawfully be made by his under sheriff.</p> <p>2. In case a sale under such advertisement is made by an under sheriff, it is competent, under sec. 3532, E. S., for the sheriff to make the certificate of'sale; and it is also competent, under the provision of sec. 3534, for the successor in office of such sheriff, in case the premises are not redeemed, to complete the sale by making the final deed.</p> <p>3. A sale under a power of sale contained in a mortgage was advertised to be held on the mortgaged premises, and was opened there, but was adjourned, on account of a severe storm suddenly coming up, to a building less than six hundred feet distant, and, all persons present going there, it was completed there about twenty-five minutes later. In the absence of evidence that anybody was prejudiced by such adjournment, held, that the sale was valid.</p>

<p>Appeal from, a judgment of the circuit court for Milwaukee county: D. H. JohNsoN, Circuit Judge.</p> <p>This was an action, among other things, to rescind a sale of real estate on the ground of fraud, and to recover of the promoters of a corporation profits alleged to have been fraudulently made by them. The trial resulted in findings in plaintiffs’ favor, which cover the issues formed by the pleadings. So far as necessary to the decision of this appeal, such findings are as follows:</p> <p>1. Plaintiffs are stockholders of the corporation hereafter named, and this action is brought for the benefit of such corporation and the stockholders thereof.</p> <p>2. Defendant Yan Eimeren was the owner of the lands described in the complaint. H. J. Mabbett had the exclusive right to sell such lands for $700 per acre, to be paid: $14,000 as soon as the papers were ready (out of which $100 was to be deducted), and the balance within five years from the exchange of papers, with interest at the rate of five per cent, per annum, payable annually, secured by a mortgage on the premises.</p> <p>3. Defendant Hugo Koeffler, for the sum of $6,000, obtained the Mabbett interest in the lands, and on the same day he obtained from Yan Eimeren a land contract, whereby the latter agreed to sell said lands to Koeffler for $700 per acre, payable: $600 down at the making of the agreement; $13,400 on or before January 2, 1893; and the balance five years from the date of the delivery of the deed, the deferred payments to be secured by a mortgage on the premises, and the total purchase price to be $31,000. Thereafter Koeffler sold a one-third interest to defendant Preusser.</p> <p>4. Koeffler and Preusser then formed a plan for organ-iziag a Corporation for the purpose of turning the lands over to it for $55,000, and of thereby malting a profit out of the transaction at the' expense of suctTperSons as they might induce to become associated with, them in such corporation.</p> <p>5. Pursuant to the plan mentioned, 'Koeffier and Preusser prepared a subscription paper which bound the subscribers to join in the organization of a corporation for purchasing the Yan Eimeren farm for $55,000, to be paid: $25,000 on the 20th day of December, 1892; $13,000 January 2, 1895; and $17,000 January 2, 1898, with interest on the deferred payments; and to take stock in the corporation for the amount set opposite their names, and pay therefor as required by the board of directors. ''</p> <p>6. Said paper was so prepared as to conceal the interest of Koeffier and Preusser therein and to induce those who signed it to believe that the promoters were going into the corporation on the same basis~with other suhscribers.</p> <p>7. Koeffier employed one Eernekes to assist in obtaining subscriptions, and, to make it appear that Eernekes was to be a stockholder, caused him to subscribe for $3,000 of the stock, but the subscription was in fact for Koeffier. Koeffier subscribed $10,000 in his own name, and Preusser $10,000. Koeffier and Fernekes obtained subscriptions to the balance of the stock of 550 shares of the par value of $100 each.</p> <p>8. None of the plaintiffs who signed the agreement would have signed it had they known that Koeffier or Preusser had any interest in the land other than as subscribers to the agreement or that the land was to be purchased so as to give them a secret profit.</p> <p>9. After the subscriptions were obtained the corporation was organized and the stock taken. Thereupon a meeting of the stockholders was had, at' which Koeffier and Preusser represented a majority of the shares, and a board of directors was elected, including Koeffier and Preusser.</p> <p>■ 10. Immediately after the election of the board of directors, they held a meeting at which Preusser was elected president and Koeffler secretary and treasurer. Then a resolution drawn by Hugo Koeffler was adopted, referring an abstract of the property to his brother, defendant 0. A. Koeffler, Jr., for examination, and, with the proviso that if the title was reported good, the president and the secretary should buy the property for the company, according to the agreement contained in the subscription list, draw the necessary money from the corporation treasury to make the down payment, and execute the necessary papers to complete the transaction. To provide for the down payment an assessment of forty-six per cent, was immediately made on the stock, which assessment was paid. Nothing was said at this meeting to indicate that Hugo Koeffler or Preusser had any interest in the land different from other stockholders, and all of' the stockholders, except those engaged in the scheme for secret profits, believed that the purchase was to be made of Yan Eimeren by the corporation for the full sum of $55,000.</p> <p>11. On the 10th day of January, 1893, Hugo Koeffler made,, in his official capacity, a check for $25,000 payable to the-order of Mabbett & Jefferson, as agents of Yan Eimeren,. and delivered it to such agents. Such check was paid out of the corporation moneys, and the money was disbursed by paying $13,400 to Yan Eimeren and the balance to Hugo Koeffler. Upon such payment being made to Yan Eimeren, he and his wife made a deed of the lands to Hugo Koeffler, who mortgaged the same back to Yan Eimeren to secure payment of $17,000, according to the terms of the contract before mentioned. Hugo Koeffler made a deed to the corporation, conveying the premises for the consideration of $55,0,00. Such consideration was made up of the $25,000 paid as aforesaid, the $17,000 mortgage put on the property by Koeffler, which the corporation, by a proper clause in the deed, agreed to pay, and a second mortgage for $13,000 made on behalf of the corporation by Hugo Koeffler and defendant Preusser, as its officers, in favor of said Hugo Koeffler, the agreement between Koeffler and Preusser being that the latter should have a one-third interest in the deferred payment of $13,000. Said Preusser also received from said Hugo Koeffler one third of the $11,600 paid to the latter out of the proceeds of the $25,000 check. ,</p> <p>12. The corporation is still the owner of the lands conveyed as aforesaid. Interest upon the mortgages, amounting to $1,700, has been paid, and taxes upon the lands of $45.64, which payments were made while plaintiffs were ignorant of the secret profits made as aforesaid. Interest on the money taken out of the treasury of the corporation to date amounts to $5,591.52. Yan Eimeren still owns the $17,000 mortgage. Defendant Charles A. Koeffler holds the $13,000 mortgage and the note it secures, as security for a loan made by him to Hugo Koeffler, but he took the same with knowledge of all the facts.</p> <p>13. None of the plaintiffs ever ratified the aforesaid conduct of Hugo Koeffler and Herman Preusser in regard to obtaining secret profits, or knew the facts in regard to such ■conduct till about the time of the commencement of this action. They have repudiated the sale by Koeffler and .Preus-ser to the corporation, and, before the commencement of this action, demanded of Charles A. Koeffler that~he~release the mortgage ot $13,000 and return the same, with the note it purports to secure, to the corporation, which was refused. Plaintiffs also made a like demand upon Yan Eimeren in regard to the ’$17,000 mortgage, which was refused, and have acted witifdue diligence in the premises.</p> <p>The conclusions of law, among~otEer" things, were that plaintiffs were entitled to judgment_rescinding and annuling the sale of the lands to the corporation, and releasing the corporation from all liability on the $17,000 note and mortgage, and also on the $13,000 note and mortgage, and to judgment that defendants Hugo Koeffler and-Herman Preus-ser are liable to the corporation for. $25,000 and interest thereon of $5,591.52, and for other relief particularly provided for, requisite to enforce such liability of Hugo Koeffler and Herman Preusser.</p> <p>Numerous exceptions were filed to the findings of fact and conclusions of law, and judgment was entered in accordance' with the findings, from which judgment defendant Hugo Koeffler appealed.</p> <p>argued, among other things, that the plaintiffs could not have a rescission because they had not tendered back their stock. Getty v. Devlin,. 54 N. T. 414, 415; Gobh v. Hatfield, 46 id. 533; Masson v: Bovet, 1 Denio, 69; Voorhees v. Earl, 2 Hill, 288; Hogan v: Weyer, 5 id. 389; Building <& Loom, Asso. v. Garrieron, 48 Neb. 124. Rescission is impossible because the rights of the appellant and of all the stockholders, some of whom are not parties to the suit, cannot be adjusted. Yale Gas Stove Goi v. Wilcox, 25 L. R. A. 105; Ladywell Mining Go. v. BrooTees, 35 Ch. Div. 400; Franey v. Warner, 96 Wis. 222; Potter v. Taggart, 54 "Wis. 395; Ohurchill v. Price, 44 id. 540. The appellant was the owner of the land under a land contract at the time the subscriptions were made, and had a right to sell it to the corporation at an advance without disclosing his profit. Brewster v. Hatch, 123 N. T. 349; Lwngren v. Permell, 10 Weekly Not. Cas. (Pa.), 269; Bwbanlc, v. Dennis, 101 Cal. 90; Governs Gase, 1 Ch. Div. 182; Densmore Oil'Go. v. Densmore, 64 Pa. St. 43. The stockholders are estopped from complaining having the means of knowledge of the facts constituting the alleged fraud, they afterward paid assessments and acted as stockholders. Bosley v. National Machi/ne Go. 1123 N. T. 550; Ghubb v. Ufflon, 95 U. Sw 669.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>On August 18, 1888, the defendant issued to one Albert Toelle, then husband of the plaintiff, a certificate of membership in the defendant company whereby it, in effect, promised to pay a sum not exceeding $2,000 to the plaintiff, in conformity with the laws of the corporation, after satisfactory proof of the death of Albert, and on return of such certificate, provided said Albert, at the time of his death, should be in good standing in the defendant corporation. The bylaws of the defendant provided that it should be the duty of every member to pay an assessment to the financial secretary at the first meeting in every month, and that every member should, after notice, pay the assessment within thirty days from the date of the same, under penalty of suspension. The constitution provided that the financial secretary should keep a full and exact account between the council and its members, and should collect all moneys due the council; that he should notify all members immediately after receipt of notice of an assessment, as well as when they should be three months in arrears, by sending them a notice thereof, as required, by mail, and that such method should be deemed sufficient and legal notice; that any member- who should be in arrears to the society for dues or fines should not be privileged to vote or participate in the sick benefits if the dues for the quarter should not be paid in before the last meeting in the quarter; that the financial secretary should announce such fact in open meeting, and, if the dues should not then be paid at or before the next meeting following, the member should be suspended from all benefits and privileges of the corporation; that, should the payment of the quarterly dues and fines of a member not follow within four weeks after the quarterly meeting, the member should lose his right to all benefits of the society, and should only be reinstated in his rights on the day payments should be made; that every member who is in arrears with his dues and assessments, and should be requested in writing by the financial secretary to pay, should pay a fine of ten cents for such extra written notice, and such fine should be added to the assessment fund; that a member who should owe three months’ dues and fines, and from whom payment should be demanded by the secretary, and who should not pay the same within two weeks, could be dropped from the membership list upon the vote of the society; that a member who should be suspended for nonpayment'of his dues could be reinstated, provided he complied with all the requirements and rules of the existing laws of the society within thirty days.</p> <p>Albert died December 22,1893, and the plaintiff, as beneficiary, brings this action to enforce the payment of such certificate. The defendant answered by way of admissions, denials, and counter allegations. At the close of tbe trial the court directed a verdict in favor of the defendant, and from the judgment entered thereon the plaintiff brings this appeal.</p>

H. JohNSON, Circuit Judge. This is an action to set aside as fraudulent a guardian’s sale of twenty acres of real estate belonging to his insane ward. The facts appearing on the trial were, in substance, as follows: In June, 1852, John J. Gasson purchased twenty acres of land in the town of Lake, in the county of Milwaukee. Prior to November 28, 1860, Gasson became incompetent to-manage his business, and so remained until his death.

H. JohNSON, Circuit Judge. This was an action brought to recover $1,000, which it is alleged the defendant agreed to pay the plaintiff as commission for his services in procuring a proper person to par-chase certain property described in the complaint.

0. Ludwig, Judge. The action is on a benefit certificate issued by the defendant to one Albert 0. Krueger in his lifetime. By the .certificate the defendant agreed to pay, to the person ivhom the said Albert O. Krueger should appoint in his last will and testament, the sum of $1,000 in the event of his death. Krueger died, and his will was admitted to probate.

C. Ludwig, Judge. This is an action to recover from the defendant city of Milwaukee a sum of money which plaintiff claims is due him -on account of salary as health commissioner for said city.

<p> Landlord’s liability to tenant for defects in premises. </p> <p>In the absence of any allegation in the complaint or proof at the trial' of any agreement on the part of a landlord, in the contract of leasing, to repair or to warrant against defects in the premises, the tenant cannot recover for a personal injury caused by a defect in the common stairway which existed at the time of the leasing, even though when notified of its existence the landlord promised to repair it, but neglected to do so.</p>

0. Ludwig, Judge. This action is brought against the sureties upon a bond given by the trustee of a testamentary trust. The facts are that one Coleman was the executor of the will of one Lurinda Shepardson, deceased, which will contained a number of testamentary trusts.

H. JohNsoN, Circuit Judge. This action was brought to recover from the defendants the sum of $125, which was claimed as a balance due on a written contract by which the plaintiff, a plastering contractor, agreed to lath and plaster the house of the defendant F. A. Walsh for an agreed price of $675, in accordance with certain plans and specifications prepared by one Ered.

H. Johnson, Circuit Judge. The action is to foreclose a mortgage upon land. The mortgage was executed, by the defendants Robert Neisler and Bertha Neisler, his wife, to Christian Gottlieb Jaehnig and Augusta, his wife, to secure their joint note of $1,200, due in one year, with interest.

<p>Appeal from an order of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>The case is stated in the opinion.</p>

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

<p>EeboR to review a judgment of the municipal court for the western district of Waukesha county: Anthoht B. Bogar, Judge.</p>

Paeish, Circuit Judge.- • This was an action to recover damages for an injury to the plaintiff’s person sustained while in the employ of the defendant company, operating a machine to remove the bark from pulp wood, and in consequence of the alleged acts and negligence of the defendant, among which was the failure to furnish said machine with a belt shifter,- etc. .

Y. Babdeeh, J udge. This is an appeal from an order sustaining a writ of attachment upon the traverse of the affidavit by the defendant Kuehn, as assignee of Detmer and Yictor Fischbeck. The assignee also made answer in abatement, to the effect that there was another action pending for the same cause..

Clementson, Judge. This action is to restrain the defendants from removing any earth, stone, or other materials from the limits of Spaight street, between Patterson and Livingston streets, and to restore said street to its prior condition, and to restrain the defendants from filling in the lake opposite to or in front of said portion of said street, and to abate the nuisance created by them.

H. Johnson, Circuit Judge. Action for personal, injury by reason of an alleged defective and icy sidewalk.

Appeals from a judgment of the circuit court for Milwaukee county: D. H. JohNsoN, Circuit Judge. The city of Mikoaulcee, for the purpose of extending a public street across the defendant’s railway track and right of way, commenced proceedings to lay out and establish such street and to have the compensation to which plaintiff was entitled by reason thereof determined.

<p>Ebbor to review a judgment of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge.</p> <p>It appears from the record that June 11,1897, the relator brought this mandamus to compel the city and its common council and its officers 'to consider and act upon the proposals for publishing the proceedings of the common council in pamphlet form, then pending before them and undetermined, and accept one of the proposals, and let a contract for doing the work thereon, or reject each and all of the proposals, and readvertise for proposals for doing the work, in the manner required by the charter, and let a contract thereon, for doing the work of publishing such proceedings in pamphlet form for and during the next ensuing year; that July 2,1897, the city and its council and mayor made return to such writ, justifying their conduct under the provisions of the charter as amended and the resolutions of the common council; that July 6, 1897, the relator demurred to such return for insufficiency ; that such demurrer was sustained by the court; and that the court ordered and adjudged that a peremptory writ of mandamus issue therein, directing and commanding the defendants as prayed in the petition for the writ. To reverse that judgment, the city sues out this writ of error.</p> <p>argued in this and the succeeding case of Hews Publishing Go. v. Milwaukee, that, inasmuch as the resolution of the common coun-. cil suspended publication of council proceedings only in newspapers, but provided for publication in another form, the mode and manner of letting the contracts therefor must comply with the provisions of the city charter. 15 Am. & Eng. Ency. of Law, 1042, 1086; Baltimore v. Eeyser, 72 Md. 106; MoBrian v. Grand Rapids, 56 Mich. 95; Dxtramgo v. Pennvngton, 7 Am. & Eng. Oorp. Gas. 588; Lee v. Racime, 64 Wis. 231; Smith v. Newburgh, '77 iSf. T. 131; Sutherland, Statutory Construction, § 457; Matter of Manhattan R. Oo. 102 LT. T. 301; 1 Beach, Pub. Corp. §§ 690, 691; Gaddis v. Richland Go. 92 Ill. 121; Keeney v. Jersey Oity, 11 Am. & Eng. Corp. Oas. 309; Garr v. Dooley, 122 Mass. 257; Clark v. Davenport, 14 Iowa, 494; Logon v. Pyne, 43 id. 524; Bloom v. Xenia, 32 Ohio St. 523; Thomas v. Richmond, 12 Wall. 349; Ooldwater v. Tucker, 36 Mich. 475; Alton v. AEtna F. Ins. Go. 82 Ill. 46; Leonard v. Canton, 35 Miss. 189; Trowbridge v. Newark, 16 1ST. J. Law, 440. The contractor for “ incidental printing ” is not entitled to publish the council proceedings in pamphlet form. The power to let such a contract is not in the board of public works, but is expressly reserved by sec. 9, ch. 3, of the charter to the common council. Bentley v. Ohisago Oo. 25 Minn. 259; Butler v. Charles-town, 7 Gray, 12; Stephens v. People ex rel. Rafter, 89 Ill. 337; Schuyler Go. v. People ex rel. R. 1. & A. R. Oo. 25 id. 183.</p>

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

II. Johnson, Circuit Judge. This is an action in equity, commenced in July, 1893, and arising out of certain transactions in May, 1893, when the plaintiff and certain of the defendants were endeavoring to secure payment of their claims against the insolvent firm of Frank A. Lappen & Co. of Milwaukee. The plaintiff was a creditor of that firm to an amount exceeding $20,000.

<p> Appeal: Municipal corporations: Milwaukee: Liability for defective sidewalks: Constructive notice: Instructions. </p> <p>1. Upon appeal by one of several defendants from a judgment against himself, the supreme court cannot consider whether the trial court erred in granting a nonsuit in favor of another of the defendants.</p> <p>2. In order to charge a city with liability for an injury caused by the defective condition of a sidewalk or the cover of a coal hole therein, it must have had either actual or constructive notice thereof, or the defect must have been of such a character or of so long standing that the city officers, in the exercise of ordinary care, must be presumed to have known of it.</p> <p>8. A city cannot be held liable for an injury sustained by a person in consequence of stepping upon the displaced cover of a coal hole in a sidewalk, in the absence of evidence to indicate any defect, or tending to show that the cover was out of its socket for a sufficient length of time to have enabled the city officers to discover its condition and replace it, or that they had reasonable 'cause to apprehend that it might become displaced by ordinary use.</p> <p>4. An instruction, in an action for such injury, in respect to the city’s liability for negligence in not knowing of and repairing the defect, which ignored the question as to how long it had existed and what was its character, held misleading.</p> <p>■6. Where the defect was a secret one,— not apparent to observation,— it was error for the court not to point out to the jury the nature and character of a defect, notice of which would be imputed to the city.</p> <p>fi. It is not the duty of the officers of a city to examine from time to time the covers of coal holes in sidewalks, which are properly constructed and apparently secure- in order to ascertain whether they are kept properly fastened.</p> <p>7. To instruct the jury that “their common sense would teach them that if the socket in which the cover was to lie became partly filled with gravel or coal, it would raise the cover so that it would be liable to tilt ” when stepped on, held to be reversible error, where there was no evidence that any such substances occupied the socket.</p>

<p> Municipal corporations: Liability for icy sidewalks: Negligence: Court and jury: Special verdict. < </p> <p>1. For a defect in a sidewalk, which is mere iciness or slipperiness produced by a sudden freezing, a city is not liable; yet, when such condition concurs with a previous defect for which the city is responsible, such as its allowing snow and ice to accumulate thereon in an uneven and dangerous manner and to remain there for a long time, the city is liable for an injury caused thereby.</p> <p>3. For a person to attempt to pass over an icy place on a sidewalk, knowing of its dangerous condition, is not in itself contributory negligence or an assumption of the risk, but it is for the jury to determine whether he exercised due care, and whether the attempt itself was negligence.</p> <p>S. In an action against a city for an injury alleged to have been caused by a defective sidewalk, where the service of notice of the accident upon the defendant is admitted, and its sufficiency only is questioned, a special verdict which fails to find whether the notice required by law was served is not defective on that account. Whether it was sufficient was a question of law for the court.</p> <p>4. The mere iciness of a sidewalk not being sufficient to establish the responsibility of a city for an accident which happened there without some other concurring cause, a finding by the jury that there was “some other condition of the sidewalk” besides the sudden freezing and the footprints “which proximately- caused the injury,” without specifying such other condition, is not sufficient to sustain a judgment against the city,'since it does not show the ■city’s responsibility for such other condition.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. BubNell, Circuit Judge.</p> <p>This was an action to recover compensation for an injury Alleged to have been caused to plaintiff by actionable negligence of the defendant. The facts alleged, as to which there was no dispute, are, that at the time of the plaintiff’s injury he was, and for a long time prior thereto had been, in the •employ-of defendant as an engineer; that his duties were, in part, to attend to the boilers used to generate steam to •operate a stationary engine; that under his supervision were firemen, whose duties were to attend to the fires under the boilers, see that the steam pressure was kept at the proper point and that the water in the boilers was kept at the proper level, and to do such other work as plaintiff might require; that there was attached to the boilers a water column to which was connected a water-glass, so arranged as to render visible the height of the water in the boilers; that' while plaintiff was standing in front of the water-glass, a few moments after having put a new one in place, and while watching to see that it was properly adjusted, it suddenly burst, causing glass, steam, and hot water to strike plaintiff in bis left eye and injure it to such an- extent as to destroy it. The negligence charged was that defendant negligently furnished a defective and insufficient water-glass, and knowingly caused the same to be used. This charge, at the close of the evidence, was withdrawn. The further negligence charged was that the fireman Frank Welk was incompetent; that defendant was notified of such incompetence; that plaintiff remained in the employ of defendant on its promise to remove such incompetent fireman and employ a competent person in his place; that after such promise plaintiff remained in the defendant’s employ on the faith of such promise, up to the time of the injury; and that the injury was caused by the fireman carelessly suddenly opening and shutting a surface blow-off valve, whereby the pressure in the boilers was suddenly increased. At the close of the evidence a motion was made to direct a verdict for the defendant, which was denied.</p> <p>A special verdict was demanded by defendant, and the following questions, among others, proposed:</p> <p>‘[Did the fireman Welk open the surface blow-off valve as claimed by the plaintiff?</p> <p>“If you answer the last question ‘Tes,’ was the opening of such valve by the fireman Welk the proximate cause of plaintiff’s injury?</p> <p>“If the fireman Welk opened the valve as claimed by plaintiff, wa-s he at the time, acting in the line of his employment ?</p> <p>“Did the plaintiff have authority to discharge the firemen under him?”</p> <p>All of such questions were refused, except such as are included in the special verdict, which.was rendered as follows:</p> <p>“ First: Was the defendant guilty of negligence that caused the injury of the plaintiff?</p> <p>“Answer: Tes.</p> <p>“Second: Was the fireman Welk an incompetent person to discharge the duties of fireman?</p> <p>“Answer: Tes.</p> <p>“Third: Did the plaintiff inform Mr. Paul, the superintendent of the defendant, about ten days before the accident, that Welk was an incompetent person to discharge the duties of fireman?</p> <p>“Answer: Tes.</p> <p>“ Fourth: If you answer the last question ‘ Tes,’ did the plaintiff continue in the employment of the defendant an unreasonable time after such notification and thereby assume the risk of such incompetency?</p> <p>.“Answer: No.</p> <p>“Fifth: Did Welk suddenly open the surface blow-off valve at the time the plaintiff was examining, the water-gauge glass and ivas injured?</p> <p>“Answer: Tes.</p> <p>“Sixth: If you answer the last question ‘Tes,’ did the sudden opening of the surface blow-off valve cause the bursting of the glass ?</p> <p>“Answer: Tes.</p> <p>“Seventh: Was the plaintiff guilty of negligence that contributed proximately to the injury ?</p> <p>“Answer: No.</p> <p>“Eighth: Did the plaintiff have authority to hire and discharge firemen of his own motion?</p> <p>“Answer: No.</p> <p>“Ninth: If the court should be of the opinion that the plaintiff is entitled to recover, at what sum do you assess his damages ?</p> <p>“Answer: $1,250.”</p> <p>The evidence as to the first and eighth questions, on the part of the plaintiff, was to the effect that he told Mr. Paul, the superintendent of the company, some time, prior to the. Injury, that the fireman Welk was incompetent, and that he did not want to remain at his post with such an incompetent person, and that he remained' upon Mr. Paul’s promise to furnish a competent person in Welk’s place; that he did •not have any authority to hire or discharge firemen; and ■that he did not hire Welk. Tie said, however, that the way ■Welk came to go to work was that they were short of help; that the other fireman told him he knew of a person that •wanted a job, whereupon Welk was brought in and plaintiff .•set him to work, and that he worked thereafter up to the ■time of the injury. Mr. Paul testified that plaintiff did not notify him that Welk was incompetent;- that plaintiff had the entire charge of his firemen, with authority to hire and ■discharge them. Mr. Gilbert, the manager of the defendant’s business, testified that he gave plaintiff full authority to hire and discharge his firemen. Joseph Gedelski testified that he worked as a fireman with Welk at the time plaintiff was injured; that he had been out of the employment of defendant, at the time of the trial, for some three years; that plaintiff hired him and Welk and fixed their wages; and that he had seen plaintiff hire and discharge firemen frequently. Frank Welk testified to the same effect.</p> <p>; The evidence showed that the boilers were all connected together; that the water-glass was attached to the water column by being engaged by a brass socket at the top and bottom with rubber gaskets resting against the ends of the glass, and pressed sufficiently hard against the glass, by screwing up a nut at the bottom, to prevent the escape of steam or water. In each of the brass connections there was .a valve by which water was let in at one end, and steam at the other, from the water column. The glass wras- about fourteen inches long and three fourths of an inch in diameter. It was located about eight feet above the Root; there was •a valve in an outlet pipe leading off from the bottom of the boilers, about two inches in diameter, used to drain the boilers; there was a surface blow-off valve located back of tbe boilers, connected with pipes entering the boilers at about the water line, which extended through the boilers and were perforated, so that when tbe valve was opened the scum from the top of the water would flow off through the pipes. This surface valve was used for the purpose of clearing the boilers from such impurities as might rise to the surface of the water. On top of the boilers there was a suitable escape valve to relieve the boilers whenever the steam pressure was above 120 pounds. There was a four-inch pipe from each boiler, connected with a six-inch pipe that conveyed steam to the engine. At the time of the accident the engine was in operation, making about seventy revolutions per minute. The surface valve was not used except to remove impurities from the boiler. It was opened by means óf a wrench, and the operation consisted in placing the wrench on a nut or nipple at the top of the valve and turning it half around, to open it full. The wrench was hung near the valve. The evidence further showed that the plaintiff, shortly before he was injured, placed a ladder in position and went up to insert a new glass in the proper place on the water column; that he attached the glass, and later went up to examine it, vfhen it burst and he was injured.</p> <p>In respect to the fifth question, covering the subject of whether the fireman opened the surface blow-off valve, and in respect to whether the glass was broken by reason of such opening of the valve, plaintiff testified that, while standing ■on the ladder, the fireman passed him, going toward the back of the boilers, and immediately afterwards the glass burst, causing' the injury; that he immediately got down from the ladder and Aventto the back of the boilers, supposing that the blow-off pipe had been opened, and found the fireman standing there wTith his hand on the wrench attached to the valve, and the valve wide open; that he immediately •closed the valve, then returned to the front of the boilers and closed the valves connecting the water column with the glass, then went and got a new glass and put it in. The’ fireman testified, in effect, that he clid not open the valve or go to the back end of the boiler at all; that he noticed before plaintiff was injured that the glass was broken, and' asked him to put in a new one; that plaintiff thereupon put in a glass; that it leaked at the bottom; that Welk then, at plaintiff’s request, handed him a wrench and then stood close-by him and saw him turn the wrench to tighten up the connections, when the glass broke; that plaintiff immediately came down and ran into the engine room, and another engineer came and put in a new glass. Mr. Paul testified that he saw plaintiff a few moments after the accident, at which time plaintiff said that he had the glass in all right; that it leaked a little and he took a wrench and screwed up the bottom nut on the glass and snapped it; that the injury was caused by his own carelessness. Olaf Jorgenson testified that he was one of the engineers and was in the engine room at the time plaintiff was injured; that plaintiff came into the-engine, room wet and bleeding; that he said he was hurt by the water-glass; that the witness asked ho'w it occurred',, and plaintiff said he was setting up the jam nut on the glass wfith a wrench; that after witness helped him wipe his eye-as best he could, plaintiff left the engine room for the office,, and witness went and put in a new glass.</p> <p>In respect to whether the opening of a surface blow-off valve would tend to increase the pressure in the boiler, plaintiff and one engineer testified in the affirmative, and four experienced engineers, none of whom were connected with the defendant, testified in the negative. Evidence was received, under objection, respecting the effect of the injury to the left eye upon the right eye. Some exceptions were taken to refusals of the court to charge the jury as requested by defendant; also exceptions to some instructions that were given, which will be noticed in the opinion so far as necessary. There was a motion made to set aside the verdict and for a new trial, which was denied. Judgment was rendered in favor of the plaintiff, from which this appeal was taken.</p> <p>They contended, among other things, that the plaintiff was an expert, and competent to testify as such as to the proximate cause of the injury. His opinion was followed by the facts on which he based it. The plaintiff did not continue in the defendant’s employment an unreasonable time after giving notice of the fireman’s incompetency so as to assume the risk. Stephenson v. Dunean, 73 Wis. 404; Hough v. Railway Go. 100 U. S. 213. The jury having found upon sufficient evidence that the accident was caused by the negligence of the fireman, the defendant was bound to show that he was a competent person for his position, that being a defensive fact. Haley m. Western Transit Go. 76 Wis. 344. There being no dispute as to what the duties of vthe fireman were, the question as to whether his act was in the line of his duty was one of law. Fióle v. G. c& H. W. R. Go. 68 Wis. 469; ReinJcev. Bentley, 90 id. 457.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. BueNell, Circuit Judge.</p> <p>This is an action to recover the value of a stock of merchandise alleged to have been converted by the defendants. The plaintiff claims title thereto by virtue of a chattel mortgage dated on the 31st of October, 1894, and filed in the office of the town clerk of the proper town on the 15th of November, 1894, given by George G. Koch, who was admittedly the owner of the stock of goods prior to the giving of the mortgage. The mortgage secured payment of a note of $8,054.60, signed by George G. Koch and Amelia Koch, his wife, dated October 31, 1894, and payable on or before two years from date. George G. Koch remained in possession of the stock at Knowles, Dodge county, after the execution of the mortgage, and on the 26th of November following the defendants L. A. Shalcman & Go., Benjamin Seheftels, F. E. AbeZes, and A. Mahler, and the Pritzlaff Hardware Company, who were creditors of George G. Koch, sued out writs of attachment against him, and placed them in the hands of Peter Peters, the sheriff of the county, who levied the same that day upon the stock of goods in question. Upon several succeeding days others of the defendants in this action, who were also creditors of G. G. Koch, sued out writs of attachment against him, and placed them, in the hands of the-sheriff for service, and the sheriff indorsed thereon that lie-had levied upon the stock of goods in question subject to the preceding attachments. The return of the sheriff shows that the attachment of ShaJcman <& Oo. was given the precedence in the levy, and that all other attachments were subject to that levy. In addition to the sheriff and the attaching creditors, the plaintiff joined as defendants certain-other persons, who were either sureties in the attachment undertakings, or the signers of indemnity bonds given to the sheriff to protect him in his acts. The defendants justified the acts of the sheriff under and by virtue of said -writs of attachment, and alleged that the plaintiff’s chattel mortgage was given with intent to defraud creditors.</p> <p>The jury rendered a special verdict to the effect that: (1) George G. Koch made the chattel mortgage in question with intent to hinder, delay, and defraud his creditors. (2) The plaintiff knew of facts and circumstances such as would put a reasonably prudent man upon inquiry, and the inquiry would have led to his ascertaining the truth. (3) The debt for which the chattel mortgage and note were given was a Iona fide debt for money loaned. - (4) The plaintiff had no knowledge of any fraudulent intent or purpose on the part of G. G. Koch in giving the chattel mortgage. (5) The plaintiff did not leave G. G. Koch in possession of the mortgaged property with the understanding that he should go on selling the same, and applying the proceeds, or a part thereof, to his own use, as if no mortgage had been given. (6) The goods coming into the store after the mortgage was made were not so intermingled with the mortgaged goods that the sheriff could not select the one from the other, (fi) The value of the mortgaged property taken and sold by the sheriff under the-writs of attachment was. $11,000.</p> <p>Upon this verdict judgment was entered for the plaintiff for the amount of his chattel mortgage, interest, and costs, and from that judgment the defendants appeal.</p> <p>They argued,. inter alia, that the plea in abatement of another action pending ought to have prevailed. The validity of the plaintiff’s chattel mortgage was at issue in both suits, and a decision in the equity suit that it was void would have prevented a recovery in this action., Mullen v. Mulloels, 22 Nan. 598 ; State ece rél. O. B. <& M. R. Oo. v. Jennings, 56 Wis. 113; Faber v. Mats, 86 id. 370; 12 Am. & Eng. Éncy. of Law, 292; Monroe v. Reid, 46 Neb. 316. To make the defendants trespassers ab initio the taking must have been for some illegal purpose. Grafton v. Oarmiehael, 48 Wis. 660; Barrett v.. White, 14 Am. Dec. 365. It was sufficient, in order to impeach the chattel mortgage, to show that the plaintiff had-knowledge of such facts and circumstances as would put a prudent man upon inquiry, and, if pursued with proper diligence, lead to a knowledge of the fraudulent intent of the-mortgagor. Kaufer v. Walsh, 88 Wis. 63; Rindsltopf v. Meyers, 87 id. 80; Tlooser v. Hunt, 65 id. 71.</p> <p>They contended that the defendants whom they represented had given no instructions to the sheriff in reference to the-attachments or his conduct under them, and had received no surplus, and a nonsuit ought to have been granted as to-them. The first attaching creditors were liable for the whole-value of the goods. Stica v. Keith, 85 Ala. 465. The severaL attachments having been levied at different times, there was. no joint trespass. Sparkman v. Swift, 81 Ala. 231; Sanger •v. Henderson, 1 Tes. Oiv. App. 412; Lee v. Maxwell, 98 Mich. 496; Boynton v. Morrill, 111 Mass. 4. Neither the officer nor the subsequent attaching creditors were liable for the levies under their attachments. "Waples, Attachment, § 308; Luce v. Hoisington, 54 Yt. 428; Page v. Oa/rpenter, 10 N. II. FT; Gvnsberg v. Pohl, 35 Md. 505; Weston v. Dorr, 25 Me. 176; Mississippi Mills v. J. Meyer dk Go. 83 Tes. 433; Conrad v. Fisher, 37 Mo. App. 352. ' Or if liable at all, it was for nominal damages only. Groat v. Gillespie, 25 Wend. 383; Patterson v. Spaulding, 5 La. Ann. 171; Oomm. v. Meyer, 170 Pa. St. 380.</p>

<p>Appeal from an order of the circuit court for Green Lake county: Geo. W. Buenell,,Circuit Judge.</p> <p>This action was brought by the plaintiffs, Stedman and others, suing for themselves and for all other taxpayers, of the city of Berlin, against the city of Berlin, its city treas-nrer, city clerk, and W. JB. Wheeler, to set aside and vacate a certain ordinance, contract, and franchise for the construction of waterworks in said city, as wholly null and void, and as beyond the power of the city to make, and as fraudulent; and the complaint prayed that the defendant Wheeler, his agents, assigns, etc., be restrained by the order and judgment of the court from commencing proceedings for or completing the erection of a system of waterworks in said city, pursuant to said ordinance, franchise, and contract; and that the city, its mayor and common council, its clerk and city treasurer, be enjoined and restrained from levying any taxes on taxable property in the city on account of hydrant rents that might accrue under said contract, etc., or for the purchase of said system of waterworks or any interest therein, or for the payment of any incumbrance thereon or interest on the same; and that the city be also restrained from incurring or creating any indebtedness for or on account of said waterworks, etc.; and for general relief. The defendants demurred to the complaint separately, on the grounds, among others, (1) that the court had not jurisdiction of the subject of the action; and (2) that the complaint does not state facts sufficient to constitute a cause of action. Upon argument it was ordered that the demurrers be sustained, and that the defendants have judgment dismissing the complaint, from which order the plaintiffs appealed.</p> <p>They argued, among other things, that the court had jurisdiction of an action by taxpayers to set aside a fraudulent and void contract on account of which an illegal tax had already been levied, and to restrain the expenditure of the moneys illegally collected and the threatened contracting of a debt ultra vires. Peels v. School Bist. 21 Wis. 516; Whiting v. S. <& F. du L. R. Co. 25 id. 167; Lawson v. Schnellen, 33 id. 288; Nevil v. Clifford, 55 id. 161; Lynch v. F., L. F. ds M. Li. Co. 57 id. 430; Heb'ard v. Ashland Co. 55 id. 145; Willard v. Comstoch, 58 id. 565; Fowler v. Superior, 85 id. 411; Earles v. Wells, 94 id. 285; Crompton v. Zabrishie, 101 U. S. 601; Dillon, Mun. Corp. §§ 910, 919. The contract is illegal, in that it creates a municipal indebtedness far in excess of the constitutional limit. Earles v. Wells, 94 Wis. 285, and cases cited; Perrin v. New London, 67 id. 416; La Porte v. Qamewell F. A. Tel. Co. 35 L. E. A. 686.</p>

<p> Appeal, review of findings on conflicting evidence: Trial, reception of evidence: Lien by attachment or judgment: Fraudulent conveyance. </p> <p>1. The supreme court will not review the finding of the trial court on controverted issues of fact, but will affirm the judgment if such finding is fairly supported by competent evidence and is notclearly ■ contrary to its preponderance.</p> <p>2. Where evidence which is competent on examination in chief, and is not properly rebutting testimony, is offered by the plaintiff after the defendant has closed his evidence, it is admissible only in the discretion of the court, and its exclusion is not error.</p> <p>3. Under sec. 2003, JR. S., the lien of a judgment upon real' estate attaches only to the interest which the defendant has therein at the time it is docketed, and if, prior to such docketing, the land has been conveyed to a bona fide purchaser, it is not subject to the judgment, though the deed had not been recorded.</p> <p>4. A copy of an attachment, with the sheriff’s indorsement thereon of a levy on land, found on file in the office of the register of deeds, is not proof that an attachment had been issued with the necessary affidavit and undertaking attached, so as to authorize it to be executed.</p>

<p> Chattel mortgage: Possession by mortgagee. </p> <p>1. The possession of mortgaged chattels by the mortgagee, which sec. 3313, R. S., makes equivalent in effect to the filing of the mortgage, must be actual, open, unequivocal, exclusive, and continuous. A . joint possession by the mortgagor and mortgagee does not satisfy the statute.</p> <p>2. A mortgagee of a stock of goods took possession of the goods, caused an inventory thereof to be made, kept them in the same store, not changing the sign, and employed one of the partners and the husband of the other to sell them, opened new books of account in his own name, received the proceeds of the sales, paid the employees, and spent some of his time in the store every day. In an action involving the question of the sufficiency of his possession, held, that it was for the jury to determine, and that a non-suit was therefore properly denied.</p>

<p> Municipal corporations: Liability for defective streets: Instructions: Contributory negligence: Intoxication: Burden of proof. </p> <p>1. A city is bound to keep its streets in a reasonably safe condition, not “ throughout all their length and breadth,” but only the traveled portion thereof.</p> <p>2. In an action for personal injuries from defects in a street, if the plaintiff proves his case without disclosing contributory negligence, then such negligence is purely a matter of defense, and the burden of proving it is on the defendant.</p> <p>3. In such an action, where the evidence showed that the plaintiff had knowledge of the defects prior to the injury, the fact that he was intoxicated in any degree at the time of the accident is a circumstance to be considered by the jury in determining whether he was in the exercise of ordinary care, even, though he was not so intoxicated as to be incapable of exercising ordinary care and prudence.</p> <p>4. The submission to the jury of an issue as to whether the street was in such condition that the plaintiff, using ordinary care and prudence, could have passed thereon without sustaining such injury, merely called upon them to determine a possibility, and was therefore misleading and improper.</p>

W. Bdbnell, Circuit Judge. The defendant is a foreign corporation licensed to do business as a mutual benefit insurance society in this state.

<p> Appeal: Judge's certificate, when necessary. </p> <p>An appeal by the relator in a mandamus case from that part only of the judgment in his favor which awards a specified amount of costs, on the ground that they are inadequate, is not permissible without a certificate of the judge as required by sec. 1, ch. 215, Laws of 1895. A bill of exceptions certified to contain all the evidence will not supply its place..</p>

<p>Appeal from an order of the county court of Eond du Lac county: A. E. Bichter, Judge.</p> <p>A judgment was rendered in a justice’s court against the defendant. He at once, on the 15th day of January, 189T, presented to the justice a notice of appeal with the proper affidavit, and tendered him $7.50 as and for the sum required to be paid to the justice upon taking an appeal. The justice told him the sum was too small, and refused to receive it, but claimed that $9.50 was the proper sum. The defendant made no further tender, and the justice declared that he would not make a return. The defendant at once applied to the appellate court for an order to compel the justice to make a return. The application was denied on February 13, 1897, and the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: N. S. GilsoN, Circuit Judge.</p> <p>Action to recover for personal injuries. Plaintiff was injured while in the employ of defendant, working as a coal trimmer or shoveler, at its coal dock. This action was brought to recover compensation therefor, upon the theory that it was the result of actionable fault on the part of the defendant in failing to furnish plaintiff with a reasonably safe place to work.</p> <p>The circumstances of the injury were substantially as follows: Plaintiff, and others associated with him, were engaged in taking coal from a bin and conveying it by the aid of machinery and putting it into a loading chute. Plaintiff’s part of the work was to stay in the chute and level off the coal with a shovel. There was a timber about eight inches in diameter and twenty feet long, placed close up under the roof at a considerable distance above where plaintiff was working, which was kept in place by resting each end on the roof joist that supported the rafters. Whether it was fastened at the ends or not was one of the questions in dispute. Suspended from about the center of the timber was a rope and pulleys, to which was attached a coal bucket. The rope led off to a stationary engine, by means of which, when the bucket was filled with coal, it was hoisted up and then swung over the coal chute or a slide connected therewith, and the coal then dumped into the chute by dropping the bottom of the bucket, which was on a hinge and arranged for that purpose. After the work had progressed for some time, and while a bucket of coal was being raised, the timber overhead was pulled to the east, that being in the direction of the pull by the engine, so that the timber dropped down upon plaintiff’s head and seriously injured him.</p> <p>The chief controversy in the case, upon the trial in the ■court below, was whether the negligent placing of the timber was chargeable to the defendant or to a fellow-servant. ‘The evidence showed that the timber was put in place some ■little time before the work commenced. The defendant •contended that the plaintiff formed one of a crew sent to ■do the work of removing the coal from the bin to the loading chute, and that such work required the putting up of the timber and adjusting the appliances in order to do the work, so that if the falling of the timber was attributable to its being improperly put up, it was the negligence of a fellow-servant. Plaintiff, on the contrary, contended that there were carpenters in defendant’s employ upon whom devolved the duty of putting up, and who- did in fact put up, the timber; that plaintiff and his associates had nothing to >do with that branch of the work.</p> <p>Defendant’s counsel, upon their theory, moved the court to direct a verdict in defendant’s favor, which was denied. 'The jury then found specially that the slipping of the timber was the proximate cause of the injury; that the timber was insecurely fastened; that such insecure fastening was the cause of the timber slipping; that it was not a mere accident that reasonable care could not have foreseen; that the foreman of the dock was invested with full power to construct and keep in repair the appliances for handling the coal; that he did not know of the insufficiency of the timber, but might have known it by the exercise of ordinary care; that plaintiff was not guilty of any contributory negligence; that his damages were $3,500. There was the usual motion for a new trial upon all the grounds necessary to cover the questions raised on the appeal. Judgment was rendered in plaintiff’s favor upon the verdict, and defendant appealed.</p>

<p>Municipal corporations: Sheboygan city charter: Distribution of powers: Mandamus to mayor.</p> <p>1. Notwithstanding the provision of the charter of the city of Sheboy-gan (Laws of 1887, ch. 124, tit. V, sec. 5), that the board of public works shall superintend the dredging of the rivers within the city,, yet the provisions of tit. IV, secs. 1, 2, which vest in the mayor and council general municipal powérs, and give to the common, council the control of the city finances; and of tit. VII, sec. 4, that the dredging of the Sheboygan river shall be done by the city, and the board of public works shall do it when ordered by the council; and of tit. IV, sec. 4, that all accounts creating a charge against the city shall be passed upon by the council; and of tit. IV, sec. 6,. that the council may by a two-thirds vote pass an appropriation over the mayor’s veto, confer ample power upon the city council to ratify, as against the mayor’s veto, the act of its own committee on harbors and bridges in contracting for and causing the removal of a bank which had suddenly accumulated in the Sheboy-gan river, and to appropriate money to pay for the same.</p> <p>2. The provision of tit. IV, sec. 6, of the charter gives such a,n appropriation the force of a law of the corporation, and the mayor of the city may be compelled by mandamus to sign a warrant for an appropriation so passed, the act of signing being merely a ministerial act.</p>

ClementsoN, Circuit Judge. Tbis is an action brought under subd. 3, sec. 3097, R. S., by tbe defeated defendant in ejectment to establish a lien upon the lands recovered in the ejectment action for improvements placed thereon by him, and taxes paid thereon while he was in possession.

B. WtMAN, Judge. Action to enjoin the operation of an electric light plant upon the ground that it constituted a nuisance in that it was-located so near lands owned and occupied by plaintiffs as a home, and was operated in such a way as to create so much, noise from the motions of the machinery, and so much smoko from the burning of large quantities of soft coal to generate steam power, and so filled the air with noxious vapors, cinders, and soot, as to render such home,…

<p>Appeal from, a judgment of the circuit court for Grant oounty: Geo. ClemeNtsoN, Circuit Judge.</p> <p>This action was commenced June 6, 1896, for unlawfully-taking from the possession of the plaintiff the goods and chattels described, of which the plaintiff -was then, and for .a long time prior thereto had been, the owner and in the rightful possession, of the value of $814.29, and converting the same to his own use, to the plaintiff’s damage in the sum named, and also for unlawfully taking from the possession of the plaintiff certain other goods and chattels described, of which goods the plaintiff was then, and for a long time prior thereto had been, the owner and in the rightful possession, of the value of $106.69, and converting the same to his own use, to the plaintiff’s damage in the sum last named; for which the plaintiff demands judgment for $920.98 damages and costs. The answer consists of admissions and denials, and justifies the taking and conversion as .sheriff, under and by virtue of a writ of attachment issued ■out of the circuit court for Grant county, June 3, 1896, in favor of Carson, Pirie, Scott & Co., and against one F. L. Greer, of Bloomington, in that county, and in which action judgment was rendered in favor of Carson, Pirie, Scott & Co., and against Greer, for $311.68, with interest and costs; and alleges that the goods and chattels so converted were the property of said Greer, and had been moved from his store in Bloomington to his store in Lancaster, where they were so seized by the sheriff; that upon said judgment execution was duly issued, and said goods so attached duly levied upon and sold thereunder; that any pretended transfer of the goods and chattels from Greer to the plaintiff herein was made without a valuable and sufficient consideration, but with the intent, on the part of both parties thereto, to hinder, delay, and defraud the creditors of Greer, of whom the firm of Carson, Pirie, Scott & Co. was one for the amount stated.</p> <p>A jury having been waived, the cause was tried by the court, and at the close of the trial the court found, as matters of fact, in effect, that the allegations in the complaint Avere sustained by the evidence, and true; that at the time of such seizures, respectively, the plaintiff was the owner and in the laAvful possession of the goods and chattels, and the whole thereof, at Lancaster; that said goods and chattels wrere, for a valuable consideration, sold and delivered bjr Greer to the plaintiff, May 25, 1896; that the value of the same Avas $740; that such goods and chattels were so taken by the defendant, as such sheriff, on the attachment mentioned, as the property of Greer, and that the same Avere sold by the defendant, as such sheriff, upon an execution issued upon said judgment; that at the time of such seizures said goods and chattels were not in the possession of Greer, but were the property and in the lawful possession of this plaintiff, to whom they had been, May 25, 1896, duly sold and conveyed by Greer for a valuable consideration, and without an intent to hinder, delay, or defraud the creditors of Greer. And as conclusions of law the court found, in effect, that the plaintiff Avas entitled to recover of the defendant the value of the goods and chattels so taken and sold by him, to wit, $740, together with costs and disbursements of this action, and ordered judgment thereon accordingly.</p> <p>Erom the judgment so entered the defendant brings this-appeal.</p> <p>They argued, among other things, that the bill of sale held by the plaintiff was void for want of consideration. The property was not turned over as an absolute payment of the debt, nor was time for payment extended. Wait, Fraud. Oonv. § 223; Oliver v. Moore, 23 Ohio St. 479; Starr v. Starr, 1 Ohio (2d ed.), 149. If the bill of sale was a mere additional security for the debt secured by the chattel mortgage, its execution was only a part of the same transaction as the giving of the mortgage, and the plaintiff’s interest in the goods was only that of a mortgagee in possession. The measure of his damages is the amount of his claim. 3 Sutherland, Damages, 525; Tenney v. State Bank, 20 Wis. 152; Ward v. Henry, 15 id. 239; Parish v. Wheeler, 22 FT. Y. 494, 511; Stevens v. Breen, 75 Wis. 595. If he has enough left to pay his debt, that is a good defense to the action. Ward v. Henry, 19 Wis. 76. The transaction by which the plaintiff obtained the goods was void, either as being fraudulent, or as being an assignment for the benefit of creditors with preferences and not made as required by statute. Breslauer v. Geilfuss, 65 Wis. 377; Kuykendall v. McDonald, 15 Mo. 416; Northern Nat. Bank v. Weed, 86 Wis. 212; Maxwell v. Si-monton, 81 id. 635; Fidler & Fuller Oo. v. McHenry, 83 id. 573; Strong v. Kalk, 91 id. 29; E. S. ch. 80; S. & B. Ann. Stats, sec. 1693a.</p>

<p> State banks: Stockholders' liability: Complaint in action to enforce: Parties. </p> <p>1. The personal liability of stockholders of a state bank to the amount of the stock held by them, under sec. 47, ch. 479, Laws of 1852, is an original primary liability to the creditors, but to be enforced by an action in equity brought by one creditor in behalf of all</p> <p>2. A complaint in an action under secs. 3223, 3224, R. S., to enforce such stockholders’ liability is sufficient if it alleges that the plaintiff is a creditor of the corporation, having a debt due and payable; that he sues in behalf of himself and all its other creditors; that the defendants are stockholders who are liable under the act of 1852 for such indebtedness; and, if the corporation is not made a defendant, sets forth a sufficient reason for the omission.</p> <p>3. The fact that the plaintiff states in his complaint that he brings the action as assignee of the bank cannot affect his right to maintain the same as creditor.</p> <p>4 The assignee need not be joined as a party defendant, but, if his presence is necessary in the action, it is sufficient that he is a party plaintiff.</p>

<p>’Equalization of taxes: Mandamus, who entitled to: Demand for performance of public duties: Time for performance.</p> <p>1. When the relief sought by mandamus is a matter of public right, the people at large are the real party in interest, and any citizen is entitled to such writ to enforce the performance of such public duty.</p> <p>2. The determination by commissioners for the equalization of taxes provided for by ch. 212, Laws of 18.82 (sec. 1077a, S. & B. Ann. Stats.), does not in the least affect any town, village, or city as such, .but it does immediately and directly affect each citizen and taxpayer in the amount of his taxes, and he is the proper party to bring an action df mandamus to compel the county clerk to perform his duties in respect thereto, if, in apportioning the taxes as required by sec. 1076, S. & B. Ann. Stats., he fails to carry into effect the equalization of assessments made by the commissioners in the previous year, and to give credit to a city in the county for an excess of taxes paid by it in that year.</p> <p>3. No previous demand for the performance of that duty is necessary. Where the law makes no provision for such a demand it stands itself in place of a demand.</p> <p>4. The statute does not seem to contemplate that a record shall be kept of the proceedings of the commissioners to equalize taxes, except that they shall file a certificate of their determination, and such proceedings will be presumed to have been regular, in the absence of proof to the contrary.</p> <p>5. The law relating to the equalization of assessments is remedial in its nature, and if the county cl’erk fails to perform his duties under it at the time appointed thereby, lest the remedy should fail, he may perform it afterward, or if he is out of office it may be performed by his successor.</p>

<p>EbeoR to review a judgment of the circuit court for "Wood county: Chas. Y. BardeeN, Judge.</p> <p>The plaintiff in error was convicted of the crime of murder in the third degree. Originally the information was against the plaintiff in error, Albert Hoffman, and Ferdinand Heise, charging them jointly with the murder of one William Herzog, from a premeditated design to effect his death. On the .first trial the action was dismissed as to Albert Hoffman and Ferdinand Heise, and proceeded against the plaintiff in error, and resulted in his conviction of murder in the third degree. The case was brought to this court, where the judgment was reversed, and the cause remanded for a new trial, which again resulted in the conviction of the plaintiff in error of the crime of murder in the third degree. The case is quite fully stated in the report of the case on the former appeal. 88 Wis. 166. As the evidence on the second trial is, in most respects and in its general character, the same as on the first trial, there is no need to repeat it here. Motions in arrest of judgment and for a new trial were overruled, and the plaintiff in error was sentenced to imprisonment in the state prison.</p> <p>To the point that by the judgment of the supreme court setting aside the former conviction on the ground that “ there was no evidence to warrant the instruction given to the jury ” as to murder in the third degree, the defendant stood acquitted of that offense, they cited State v. Moon, 41 Wis. 684; Mall v. People, 43 Mich. 417.</p>

H. JoimsoN, Circuit Judge. The defendant is the owner of a block of tenements in the city of Milwaukee. It was occupied by a considerable number of tenants. The plaintiff bad rented and occupied a flat on the second floor, which she used both for a residence and a place of business. A stairway which opened from the-street extended úp through the building to the third and fourth floors. This was used in common by all the tenants of the building, as occasion required.

<p>Appeal from a judgment of the circuit court for Winnebago count}7: Geo. W. Burnell, Circuit Judge.</p> <p>The case is fully stated in the opinion.</p> <p>They argued that it is only in exceptional cases that a corporation can purchase its own stock. If it may do so of one stockholder it may of all, and thus become extinct. Stock has no value in the hands of the corporation itself, but is like a redeemed mortgage. Cook, Stock (2d ed.), § 314. Such a purchase is not a diminution of stock, as that can be effected only by an amendment of its articles of incorporation. Wood v. Union Gospel Chur oh JBuilding Asso. 63 Wis. 9. A concealed reduction of capital would injure a subsequent creditor.</p> <p>To the point that a corporation may purchase its own stock they cited Beach, Priv. Corp. §§ 129, 395; 23 Am. & Eng. Ency, of Law, 676; Island v. Hay dm, 102 Mass. 542; Dupee v. Boston Water Bower Go. 114 id. 37; Am. Railway-Frog Go. v. Haven, 101 id. 398; ' Gomen, v. B. & A. R. Go. 142 id. 146; Chicago, P. s& S. W. R. Go. v. Marseilles, 84 Ill. 145, 643; Republic L. Ins. Go. v. Swigert, 135 id. 150; Iowa Lumber Go. v. Foster, 49 Iowa, 25; Rollins v. Shaver Wagon <& Carriage Go. 80 id. ■380; Williams v. Savage Mfg. Oo.-Z Md. Oh. 418; Hcurhridge v. Rockwell, R. M. Charlton, 260; Rivcmna Wav. Go. v. Daw-sons, 3 Gratt. 19; Farmers' áb M. Bank v. Ohamplain Transp. Go. 18 Yt. 131, 139; State ex rel. Page v. Smith, 48 id. 266, 287; Taylor v. Miami Exporting Go. 6 Ohio, 176; State ex rel. Oolburn v. Oberlin B. <& I. Asso. 35 Ohio St. 253; Hill ■v. Silvey, 81 Ga. 500; Vail v. Hamilton, 85 N. Y. 453, 457; Ebey v. Guest, 94 Pa. St. 160; Ohillicothe Branch of State Bank v. Fox, 3 Blatchf. 431; Pierce, Railroads, 505.</p>

<p> Sale with warranty: Acceptance by continued use: Waiver. </p> <p>1. A written order by one party for the delivery to him of a steam threshing machine, containing provisions that the vendee shall . make certain payments; that the machine shall be warranted of good materials and well made; that, if the machinery or any part fails to fill the warranty within ten days of the first use, written notice shall be given the vendor, and time, opportunity, and friendly aid be given to reach the machine and remedy any defects, and, if . the defective machinery cannot then be made to fill the warranty, it may be returned and another be furnished on the same terms, or the money and notes given therefor bé l’eturned to the vendee and no further claim be- made upon the vendor; that continued possession or use of the machine after the expiration of the time mentioned shall be conclusive evidence that the warranty is fulfilled to the satisfaction of the vendee; and that the warranty shall be void in case the machine is not settled for when delivered, or the warranty is changed,— constitutes, when «acted upon by the party receiving such order by the delivery of the machine ordered, a valid contract of sale, binding upon both parties according to its terms.</p> <p>2. If the vendee under such contract, after he has discovered defects and verbally notified the vendor thereof, and the latter has made an ineffectual attempt to remedy them, retains possession and continues to use the machine for a long period of time without returning or offering to return it to the vendor, he thereby accepts the machine and waives the defects. Marshall, J., dissenting, holds that the continued use which, by the contract, was to operate as an acceptance and a waiver of defects, was such use without having given notice of defects, but that such continued use, after notice of defects had been given, only cut off the right to return the property, and did not affect the remedy upon the warranty.</p> <p>8. An agreement, made by an agent of the vendor on the tenth day allowed for the trial of the machine, that if the vendee, who then complains of defects, will give the notes as before agreed, the defects in the machinery shall be made good, so as to fill the warranty upon which it was sold, legally gave him nothing to which he was not entitled under the original contract, and did not supersede or modify that so as to eliminate the warranty or the provisions in regard to its waiver or fulfillment, except that it may have waived the giving of written notice or postponed it for a reasonable period. Marshall, J., dissenting, holds that the agreement by the agent was essentially a new contract, which the vendor ratified by acting upon it, and it had the effect to waive the written notice of defects and the condition as to the effect of continued use.</p> <p>4 The vendee having by such contract the right to return the machine if unsatisfactory and let the vendor remedy the defects, his continued use thereof for a long period after he had discovered such defects, not for a further trial but merely for his own convenience, and without returning or offering to return it, was an acceptance thereof. Marshall, J., dissenting, holds that the contract did not make rescission the exclusive remedy, but the vendee might retain the machine and sue on the warranty.</p>

<p>Error to review a judgment of tbe municipal court for the eastern district of Waukesha county: D. S. Tullar, Judge-.</p> <p>The plaintiff in error was convicted in the municipal court for the eastern district of Waukesha county, under sec. 4409, S. & B. Ann. Stats., which provides, in substance, that “ any person who shall break and enter any office, shop, warehouse or other building, not adjoining or occupied with any dwelling house, . . . with intent to commit the crime of robbery, larceny or other felony, shall be punished by imprisonment in the state prison not more than five years nor less than one year.” The information charged that the plaintiff in error, in tbe night time, wilfully, feloni-ously, and burglariously broke and entered a certain building, used and known as a chicken house, the property of one George Marx,— said building not adjoining, or occupied with, any dwelling house,— with intent then and there to commit the crime of larceny, in this, to wit, the goods, chattels, and property of the said George Marx, then and there being found, to feloniously take, steal, and carry away, against, etc. The value of .the chickens taken was not proved, and the court charged the jury that the taking of chickens, regardless of value, was larceny, within the meaning of the statute. The testimony, on the part of the defendant, on the trial, was that at about 12 o’clock at night,, when the offense was committed, the door of the hen house was open. The testimony on the part of the state was that it was closed at 7 o’clock that evening. The court charged the jury that it made no difference whether the hen house was closed or open, if the entry was made with the intent to commit the crime of larceny; that this constituted the offense of burglary. The jury by which the plaintiff in error was tried was summoned from the portion of the county of Waukesha constituting said, municipal district, and not from the entire county. There was no proof in the record that the property stolen was of the value of $20.</p> <p>Part of sec. 8, ch. 22, Laws of 1895, the act establishing said court, provides that the clerk thereof “ may examine on oath all persons applying for warrants and may reduce their examination to writing and file the same and may issue all warrants and process from said court.” The salary of the judge is $1,500, to be paid, three fourths 'out of the county treasury of Waukesha county, and one fourth out of the village treasury of the village of Waukesha; and the clerk’s salary is to be paid substantially in the same manner. It is provided that all costs imposed and collected in criminal cases under the laws of the state are to be paid into the county treasury, and all costs imposed and collected in cases arising under the charter and ordinances of any city or village shall be- paid into the treasury of the city or village under whose charter said case arose. Sec. o provides that applications for warrants may be made to the clerk of the court, and said clerk shall have power to issue the same,, exercising the discretion a justice of the peace may exercise-in granting or refusing the same. If the clerk refuse the warrant, the court, on application, may grant the same, in its discretion.</p> <p>The evidence tends to show that Ernest Sweet and Charles Grimshaw were concerned with the plaintiff in error in the commission of the offense in question. These parties were severally arrested and brought before the court, had preliminary examinations, and each was subsequently tried for the offense in question. Upon the trial of the plaintiff in error, after he had rested his case the prosecution called W. A. Pierce, who was sworn on behalf of the state in rebuttal, and testified that he was a stenographer of the court, and took dowm the testimony, January 15th, given by Ernest Sweet in the case of the state of Wisconsin against said Sweet, and also the statements made by him. lie testified that the document produced by him was a correct transcript of that testimony, and the whole thereof, whereupon the testimony of said Sweet on said preliminary examination was offered in evidence. This was objected to by the defendant as incompetent, irrelevant, and immaterial; but the objection was overruled, and the testimony received. Margaret Gaynor was also sworn on behalf of the state on rebuttal, and testified: “ I am the regular stenographer of the county court. I was called into the municipal court as stenographer in the preliminary examination of the state of Wisconsin-against Charles Grimshaw. I transcribed the same from shorthand into longhand. Think this is a correct transcript of the said testimony, and the whole thereof.” The preliminary examination of Charles Grimshaw was then offered in evidence, and objected to as incompetent, irrelevant, and immaterial. The objection was overruled, and the testimony received. Both Sweet and Grimshaw were sworn and examined as witnesses on behalf of the defendant, Pooler, at his trial; and it is argued that their testimony on said preliminary examinations was produced on the trial of Pooler to impeach their testimony given on his behalf on such trial. The court refused to instruct the jury, as asked by the plaintiff in error, that “ if the door of the hen house was standing open when the defendant first approached it, and they nor any of them had any agency in unfastening the same, then there was no breaking, within the meaning of the law, and you should acquit the defendants.”</p>

<p>Appeal: Res adjudicata: Injury to employee: Negligence in respect to guarding machinery: Practice, evidence affecting credibility: Instructions.</p> <p>1. Upon a second appeal, where the evidence is substantially the same as on the former appeal, a decision that the evidence at the first trial was sufficient to carry all the issues in the case to the jury will be held conclusive and not be reconsidered. .</p> <p>H. In a casé where all the questions essential to the plaintiff’s right of recovery were submitted to the jury for a special verdict, and each of the answers to such questions had some evidence to sustain it, and no reversible error is found in the record, the ruling of the court below in refusing a new trial will not be reversed on appeal.</p> <p>-3. It is not error, in a case where the questions submitted to the jury covered all the issuable facts, to refuse to give instructions which are not directed to particular points but generally to some branch of the law applicable to the case.</p> <p>4. An instruction, in an action, for a personal injury to a minor by the negligence of his employer in respect to guarding dangerous machinery, that “ordinary care,” as used in regard to the issue as to plaintiff’s contributory negligence, refers to such care as minors of plaintiff’s age, intelligence, and experience usually used under similar circumstances, is not objectionable because of its limitation of the care required to that usually exercised by such minors.</p> <p>' 5. Where gearing to machinery is so located as to be dangerous to those employed about it when engaged in their ordinary duties, our statute requires it to be securely guarded, and a failure on the part of the employer to properly guard it is negligence which will render him liable to an employee who is injured thereby without contributory negligence on his part.</p> <p>6. Where a statute imposes a duty upon a certain class of persons to guard the personal safety of others, a failure to perform that duty constitutes actionable negligence, and renders the person guilty thereof liable to a person intended to be protected who is injured by such negligence without contributory negligence on his part; and the fact that a penalty is imposed by the same statute for noncompliance therewith does not deprive the person injured of his action for such negligence, unless the penalty is expressly given to him for compensation.</p> <p>7. It was not error, in an action for an injury to an employee caused by unguarded machinery, to instruct the jury that there was a conflict of evidence as to whether there was a cleat on the floor to prevent the plaintiff from slipping against such machinery at the time when he was injured, and that they should consider and. determine from all the evidence whether the defendant exercised the degree of care usually exercised under like circumstances to guard dangerous machinery. The absence of the guard, when required by statute, is negligence per se.</p> <p>8. Upon cross-examination of a witness for the defendant who has-testified to a convex-sation had by him with the plaintiff about the circumstances of the injury sued for, it is proper to show that he was employed by the defendant to have such conversation, as-affecting the weight of his evidence; and that is not rendered improper by the fact that the connection of the witness with the case had ceased before he testified.</p>

<p> Defective sidewalks: Notice before suit: Contributory negligence: lie-marks by court. </p> <p>1. The requirement of1 see. 1339, E. S., that no action shall he maintained for an injury resulting from a defective street without the service of a notice of the injury and damage and the place where it occurred, within a specified time, is sufficiently complied with by the service of such notice upon the proper clerk immediately before the^service of a summons and complaint in the action.</p> <p>2. In an action for an injury received by the plaintiff in slipping from steps in a sidewalk, the jury could not be misled by a remar'k of tlife court to counsel that the condition of the street lamp on the night when the accident occurred might be shown as bearing upon the question of plaintiff’s contributory negligence, but was not controlling nor of very great importance, where by its instructions it submitted to them the question whether there was a defect in the sidewalk by reason of its not being sufficiently lighted or being guarded by a rail.</p> <p>S. It cannot be said that, as a matter of law, one who in descending steps in a sidewalk, where the street lamp gave but a feeble light, reached for but did not find any railing, and fell, was guilty of contributory negligence, but the question was one for the jury.</p>

<p>Appeal from a judgment of the circuit court for Monroe ■county: O. B. Wyman, Circuit Judge.</p> <p>This case ivas that the principal defendant, William E. Hewitt, made an assignment to the defendant Teasdale for the benefit of the creditors of the former, one of whom, the plaintiff, brought an action against said Hewitt , for the recovery of his demand against him, and recovered judgment by default. The plaintiff, at the commencement of his •action, summoned Teasdale, Hewitt’s assignee, as garnishee, ■on the alleged ground that he was indebted to said Hewitt, ■and had in his possession and under his control real estate, personal property, effects, etc., of the said Hewitt. The .■garnishee made the general answer, denying his liability^ or indebtedness as such. • The plaintiff took issue thereon, and there was a trial of the same before the court, resulting in charging the defendant Teasdale, as such garnishee, for the property and assets assigned to him by said Hewitt, described in the list of assets filed by the assignor under said assignment; said property, etc., to be sold, and the proceeds to be ■divided between the plaintiff and the Warder, Bushnell & Glessner Company, plaintiff in another like garnishee action ■commenced at the same time as the plaintiff’s action, in proportion to the amount of their' respective judgments ■against the said assignor, Hewitt. The judgment thus given rested wholly on a finding “ that no full and true copy of such assignment was ever filed in the office of the clerk of the circuit court by the officer taking the same, in accord.ance with the provisions of sec. 1695, E. S.,” and that the ■assignment was, therefore, void as against the plaintiff and said other garnishing creditor, and judgment was rendered ■accordingly for the delivery of said property and effects to the clerk of the circuit court, to be sold, etc., and the pro•ceeds applied as aforesaid. Erom this judgment the defendant garnishee appealed.</p> <p>The evidence, in substance, was that the original assignment and the copy were both signed by the assignor, and are identical in language, and that each was a duplicate of the other. The assignment was in proper form, duly executed and acknowledged October 31,1895; and the copy or duplicate filed in the clerk’s office, returned in the record, clearly shows that in all respects it was an original,— that is to say, one of the duplicates. Upon it was indorsed the proper consent of the assignee to take upon himself the faithful discharge of the several trusts specified in the assign^ ment; and his certificate that “ the foregoing copy of such assignment is a true and correct copy of the original, dated October 31,1895,” and the further certificate by D. F. Jones, court commissioner, the officer in whose presence the assignment was executed: “ I hereby certify that the foregoing is a true copy of the original assignment, and of the whole thereof, made by William E. Hewitt to Howard Teasdale on the 31st day of October,.A. D. 1895, and that the said as-signee named in said original assignment did, in my presence, make the indorsement thereon, as required by section 1696 of the Eevised Statutes of Wisconsin. Dated Sparta, Wis., October 31,1895. D. F. Jones, Court Commissioner.” There were filings on said copy or duplicate as follows, to wit: “ State of Wisconsin, Monroe County — ss.: The within copy of assignment was filed by D. F. Jones, court commissioner, in the office of the clerk of the circuit court, in the county of Monroe, Wisconsin, on the 31st day of October, A. D. 1895, at 11 o’clock a. m. Henry Grraf, Clerk of the Circuit Court, Monroe County, Wisconsin.” And there was a stamp filing thereon of the same date. The bond by the assignee was properly exécuted and approved, having thereon the proper certificate of the court commissioner, and was duly filed the same day.</p> <p>After the papers had been filed in the office of the clerk of the circuit court, and at a time and by some one unknown, the words in the certificate of the court commissioner, “ is a true copy/’ were found to have been erased with pen and ink by drawing one or more lines through the same. The evidence is' clear and positive that no erasure appeared on. the certificate when it was filed; indeed, it appears that three lines had been drawn through these words. The defendant Teasdale, who drew the assignment papers, testified, in substance, that he had the original assignment, made at the same time as the other and really a duplicate of it; that the words “ a true copy ” are erased in that because it is not a true copy; it is the original. The words “ by D. E. Jones, court commissioner,” in the certificate, in respect to the filing of the assignment or duplicate, were inserted by the clerk of the court under the direction of said court commissioner, after the assignment had been filed two or more days. The papers, after having been filed in the clerk’s office as stated, were borrowed by an attorney, or attorney’s clerk, for use, and he returned them in about two days thereafter. He testified that the erasure in the certificate mentioned existed when he got the papers from the clerk’s office.</p> <p>The result of the proof is, clearly, that the assignment was executed in duplicate, each being a copy of the other, one of which, with the proper certificates, was filed in the clerk’s office, as required by law, and the certificate thereon was afterwards erased in part, as stated, at a time and by some one unknown, and one of the duplicate assignments was retained by the assignee. An inspection of the copy on file in the record shows- very clearly that it is in all respects an original paper.</p> <p>They argued that the assignment was void as to the plaintiff because the original was filed, instead of a copy. The filing did not show that it was done by a proper officer, until after this proceeding was commenced. Orever v. Culver, 84 Wis. 295, 298; /Standard Paper Co. v. Krauthoefer, 89 id.'168.</p>

<p>Appeal from a judgment of the circuit court for Juneau county: O. B. WymaN, Circuit Judge.</p> <p>The plaintiff is a corporation engaged in the manufacture and sale of beer. In June, 1894, it engaged one Charles Loveless as its agent for the sale of its beer at Elroy, Wisconsin. At the same time, Loveless and one J. Gf. Wight-man, the defendant’s decedent, executed a bond to the plaintiff in the penal sum of $500, conditioned for the faithful performance by Loveless of his contract of agencjr, until his final discharge by the plaintiff. Loveless continued in the agency until March, 1896, when he disappeared, owing-the plaintiff $495.72. In the meantime Wightman had died, and his estate had been settled. The time for the presentation of claims against the estate had expired in January, 1896. At that time Loveless was in default to the amount of $625.01. The plaintiff presented no claim at that time against the estate of Wightman. After the termination of the agency by the disappearance of Loveless, and on the 11th day of May, 1896, the plaintiff presented its claim for allowance to the proper county court as a claim which had accrued since the expiration of the time limited for creditors to present claims under R. S. sec. 3860. The county court refused to audit the claim at that time, on the ground that it bad no jurisdiction of the matter, for that the time limited for the presentation of claims had expired. The plaintiff then appealed to the circuit court, where the cause was tried, and judgment for the plaintiff was given. From that judgment the defendant appeals.</p> <p>They contended that the appeal bond was insufficient to give jurisdiction to the circuit court, because it omits the essential words “to effect.” Drinkwine v. Eau Olaire, 83 Wis. 428; Pelion v. Blooming Grove, 3 id. 310; Varney v. Gaswell, id. 744; Thompson v. Thompson, 24 id. 517; 1 Ency. of PI. & Pr. 965-967. The claim of plaintiff against the decedent was absolute at his death and might then have been proved. It was not contingent and therefore could not be proved under sec. 3860, R. S., after the time limited. The claim arises from the breach and not from the mere existence of the obligation. Mann v. Eva/rts, 64 Wis. 372; Taring v. Eendall, 1 Gray, 305; French v. Morse, 2 id. Ill; Woodard v. Herbert, 24 Me. 358; Ellis v. Ham, 28 id. 385; Dole v. Warren, 32 id. 94; John Hancock Mut. L. Ins. Go. v. Hill’s Estate, 108 Mich. 126; Lytle v. Bond, 39 Yt. .388; Austin v. Saveland’s Estate, 77 Wis. 108. There had been a breach of the bond every month, and there was no final settlement. Blakely v. Smock, 96 Wis. 611; Carpenter v. Murphey, 57 Wis. 541.</p>

<p> Voluntary assignment, construction of. </p> <p>1. In the construction of assignments for the benefit of creditors, the ordinary rules governing the construction of contracts are to be applied.</p> <p>2. An assignment for the benefit of creditors made by three persons, two of whom, G. and G., were partners under the firm name of G. & Go., and they with H. constituted the firm of G. & H., recited: “ This indenture by and -between G., G., and H. of the firm of G. & H., parties of the first part.” The affidavit as to the valuó of the assigned property referred to it as that of “G. & H.” The assignee’s bond described him as the assignee of “G. & H.” He entered upon his duties as assignee of that firm. The property inventoried belonged to that firm; and the creditors scheduled were none other than creditors of that firm. Held, that it was the evident intention of the parties that the assignment should be, and it was, that of the firm of G. & H. and not an individual one of the persons composing that firm.</p>