Volume 98 — Wisconsin Reports

<p> Lien of subcontractor: Notice to owner. </p> <p>The plaintiff, as subcontractor, furnished glass for a building to the principal contractor, who used it in the building, but discovering that a portion of it was defective notified the plaintiff, who thereupon shipped new glass to-replace that which was defective. Such new glass was received at the railroad depot agreed upon as the place for delivery, but was left there and never used in the building. The plaintiff gave to the owner of the building written notice of his claim for a lien within sixty days after the second shipment, but not until more than sixty days after the first glass was used in the building, and not-until after such owner had settled with and paid the principal contractor. Held, that the right to a lien under sec. 3315, B. S., was lost by such delay in giving the required notice.</p>

<p>Sale of chattels: Caveat emptor: Fraud: Instructions to jury: Agency: Damages: Parties.</p> <p>1. The rule of caveat emptor has no application where a purchase is induced by fraudulent representations on the part of the seller.</p> <p>2. An error in instructing the jury, in a case .where a purchase was induced by fraudulent representations, that the rule of caveat emptor applies, is not cured by a further instruction that a purchaser has a right to rely upon representations made by the séllel-as to matters within the knowledge of the seller but not known to the purchaser.</p> <p>3. In a case where an agent, acting for the purchasers, received representations from the seller as to the value of the property included in the mortgage proposed to be purchased by him, and thé financial standing of the indorsers of the notes secured thereby, which were false, and which being reported by him to the plaintiffs induced them to purchase such mortgage, an instruction that if such agent was not appointed the agent of the defendant his representations to the plaintiffs would not bind him, and, if he was such agent, the defendant would not be bound thereby unless the agent made them with knowledge that they were false, or made them with defendant’s knowledge and the defendant knew them to be false or had no reason to believe them to be true, is erroneous, because the seller is responsible in such a case for the representations made by him to the plaintiffs’ agent, even though the latter may, for some purposes, represent the seller also.</p> <p>4. The measure of damages recoverable by one who was induced to purchase a mortgage by fraudulent representations as to the value of the mortgaged property and the .responsibility of the indorsers of the notes secured thereby, is a sum equal to that portion of the mortgage debt which the securities, when properly applied, will fail to pay, when, if they had been as represented, they would have been adequate to pay the whole debt.</p> <p>5. Where several persons, induced by false representations, purchased a mortgage, each contributing one fourth of the money, held, that their interests iu the securities were joint, and they might properly sue jointly for the fraud.</p>

<p> Specific performance: Vendor and purchaser: Contracts: Evidence: Harmless error. </p> <p>1. Under a verbal contract by which defendant agreed to buy a certain eighty-acre tract of land and sell it to the plaintiff on the same terms as he purchased it, and to execute to her a land contract therefor, and to apply on the price thereof the amount he might receive for a forty-acre tract which the plaintiff deeded to him, less certain indebtedness of plaintiff to him, possession of the eighty-acre tract was delivered to the plaintiff pursuant to the contract, but the defendant afterwards sold the forty-acre tract for $1,100 and refused to account therefor, and also leased the eighty-acre tract to the plaintiff’s husband without her knowledge, and refused to make to her the land .contract as agreed. Held, that the plaintiff was entitled to an accounting and to specific performance of the contract.</p> <p>2. In such action, where it appeared that the defendant had in fact executed a long lease of the forty-acre tract, giving the lessee an option to purchase, and that he admitted that he was chargeable with $1,100, an error in finding that he had sold the land for $1,100 is held to be harmless.</p> <p>3. Evidence in such action that the entire consideration for the purchase of the eighty-acre tract was to be paid from the proceeds of the plaintiff wife’s separate estate, and her positive testimony that the contract was to be made to her, is held to justify a finding that the contract was to be made to her, and not to her husband, though she sometimes used the term “ we ” in testifying of it.</p>

<p>Appeal from a judgment of the circuit court for La Crosse •county: O. B. WymaN, Circuit Judge.</p> <p>The case is stated in the opinion.</p> <p>They argued, among other things, that the mayor is, by the charter of La Crosse, the head of the police and the chief executive officer. Under ch. 217, Laws of 1897, in a city of this cl^ss, the mayor has the sole power to appoint the board of police and fire commissioners. An appointment by the mayor in office when that act took effect must be presumed to be regular and legal and not in excess of his authority. Tiedeman, Mun. Corp. § 77; People ex rel. Atty. Gen. v. Clingan, 5 Cal. 389; State ex rel. Beeves v. Fergxmn, 31 N. J. Law, 107, 119; Throop, Pub. '■Off. 558; Mandeville v. Beynolds, 68 N. Y.‘528, 535. The •question how the mayor exercised his discretion in making this appointment cannot be raised in the court. Marbury v. Madison, 1 Cranch, 137, 170, 171; Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 517; State ex rel. Kennédy v. Mo-Garry, 21 Wis. 196,197. The acts of officers defacto, while in office, are valid as to the public and third persons, and cannot be inquired into collaterally. State ex rel. Enoidlton v. Williams, 5 Wis. 308, 313; Lash v. U. S. 1 Pin. 77, 80; Tolle v. Stone, id. 230, 232, 233; In re Boyle, 9 Wis. 261; Dean v. Gleason, 16 id. 1, 18; State v. Bloom, 17 id. 521; State ex rel. Wood v. Goldstucher, 10 id. 124,129; Chicago <& N. W. B. Co. v. La/nglade Co. 56 id. 614, 625, 629; Cole v. Blade River Falls, 57_ id. 110; In re Radi, 86 id. 645; Bed-ford v. Riee, 58 N. H. 446; People ex rel. Bush v. Gollins, 7 Johns. 549; People v. White, 24 Wend. 520, 525; Goalee v. Halsey, 16 Pet. 71, 85; Budcnam v. Ruggles, 15 Mass. 180. Appointments by defacto officers are held good. State ex rel. Whiibech v. Ailing, 12 Ohio, 16; State ex rel. Newman v. Jacobs, 17 id. 143; People ex rel. Norfleet v. Staton, 73 N. 0. 546; Mallett v. Uncle Sam G. <& S. M. Go. 1 Nev. 188; People ex rel.'Hodgleinson v. Stevens, 5 Hill, 616, 630; In re Burhe, 76'Wis. 357. The powers of the president of the council under the charter are merely those of a temporary, emergency officer, to do in place of the mayor things to be done at a particular time when the mayor is unable to do them. Only such an absence from the city as will render the mayor unable to perform his duties is intended to give the president power to act. Mayor of De-droit v. Moran, 46 Mich. 213; People ex rel. Wood v. lacombe, 99 N. Y. 43. At the time the appointment was made by the president, he was not a city officer, his term having expired at midnight previous thereto. Custom cannot change the law as to the time of taking office. Throop, Pub. Off. sec. 322; Vogel v. State tx rel. laud, 8 N. E. Pep. 164; State v. Mounts, 15 L. P. A. 243, 248; State ex rel. Warden v. Knight, 82 Wis. 151, 159.</p>

E. Wyman, Circuit Judge. This is an action brought to recover $270.93, on the bond of the defendant August Baier as treasurer of the plaintiff school district, the defendant Da/wson being surety upon the said bond.

B. Wyman, Circuit Judge. This action was brought for the recovery of a loss sustained by the plaintiff on his hotel building and barn at Midway, Wisconsin, under a policy alleged to have been issued •by the defendant company to him, set out in the complaint; and the question vital to the case is whether the alleged policy ever became an operative and binding contract, the defendant denying that it was ever in force.

B. Wyman, Circuit Judge. The plaintiffs are the owners of a livery barn in the city of La Crosse. The defendant occupied the barn under a lease. Rent became in arrear. The plaintiffs made demand for its payment or the surrender of the premises. The defendant neither paid the rent nor surrendered the premises. The plaintiffs brought suit for the possession, and obtained judgment for possession of the premises.

M. Webb, Circuit Judge. Action to recover damages for personal injuries. Plaintiff was a man twenty-two years of age, and of average intelligence so far as shown by the pleadings and evidence. He was in the employ of defendant in operating an iron-man u-'facturing plant.

M. Webb, Circuit Judge. This action was commenced March 30, 1896, by the as-signee of a land contract against the vendee in possession, and also against the vendor and a subsequent mortgagee of the vendor, to foreclose the contract, and have the mortgage adjudged subject and subordinate to the plaintiff’s claim.

B. BuNdy,- Circuit Judge. This is an action to recover for personal injuries suffered by the plaintiff by reason of a fall upon a sidewalk in the defendant city on the 21st of November, 1893. The fact that the plaintiff fell was not disputed, nor was it disputed that he suffered injuries thereby. A snowstorm was in progress at the time of the fall, and the plaintiff claimed that the fall was occasioned by slipping upon an accumulation of ice upon the sideAvalk.

Croix county: E. B. BdNdy, Circuit Judge. This was an action brought to recover damages which the plaintiff claims to have sustained in consequence of a personal injury received by him while traveling on a sidewalk in the defendant city, on and along the east side of Arch street, which, it was alleged, was defective, insufficient, and in want of repair, and which the defendant negligently and knowingly suffered and permitted for a long time previously to be and remain in…

Croix county: E. B. Bdedy, Circuit Judge. This is an action by the executor of Patrick Biley, to recover the amount of three promissory notes executed by the defendant James McAndrew to his decedent in his lifetime. The notes were secured by a mortgage upon land. . W. H. Riley, a son of Patrick Biley, claimed to be the owner of the notes and mortgage, and was interpleaded. The issue tried was whether W. IT. Riley was the owner of the notes and mortgage.

Croix county: O. B. Wyman, Judge. On June 15, 1893, the defendant A. J. Goss, being engaged in the banking business at Hudson, made to the garnishee, Humphrey, a voluntary assignment for the benefit of his creditors. The assignee accepted the trust, and duly qualified, and entered upon his duties as such assignee.

Croix county: W. E. Bailey, Judge. ■ This is an appeal from an order of the circuit court sustaining a demurrer to the plaintiff’s amended complaint, on. the ground that the same did not state facts sufficient to constitute a cause of action. The complaint alleged, in substance, the following facts: The defendant was the owner and engaged in operating a sawmill.

Croix ■ county: E. W. Helms, Circuit Judge. This action was brought by the receiver of the Minnesota ■ & Wisconsin Railway Company to restrain the defendant from instituting condemnation proceedings, or otherwise interfering with the rights of the receiver or the railway •company in respect of certain lands on which the railway ■ company had located its railroad and depots and terminal facilities, and to enforce the specific performance of an alleged oral agreement to convey…

G. SiebecKER, Circuit Judge. Action of ejectment. The correct location of the south boundary line of lot 8, block 4, of Brooks’ addition to the city of Madison, was the disputed question, and that turned on the proper location of the southeast corner of the lot.

<p> Foreign benefit association: Use of name: Injunction: Issuance of license. </p> <p>1. A foreign fraternal or beneficiary association which has conducted business under a certain name ór designation for many years will not be restrained from the use of such name at the suit of a domestic association, organized under a similar name for similar purposes more than ten years after the former commenced to transact business in this state.</p> <p>2. The question whether a foreign fraternal benefit association is entitled to a license to transact business in this state, under ch. 418, Laws of 1891, is a matter to be decided by the proper authorities of the state, and cannot be determined in advance by the courts, in an action brought by another corporation to restrain the issuance of the license.</p>

<p> Appealable order: Change of venue. </p> <p>Since the passage of ch. 212, Laws of 1895, an order changing the venue of an action on the ground of convenience of the witnesses is not appealable; subd. 4, sea 3069, R. S., under which such orders were formerly held appealable having been eliminated by that act. Remarks in Western Banlc v. Tollman, 15 Wis. 92, held obiter and disapproved.</p>

G. Siebeoker, Circuit Judge. The Campbell & Cameron Company, a corporation, filed a petition in the county court of Columbia county, in the mat--ter of the estate of Alexander Carnagie, deceased, to declare a certain fund under the control of the state board of control, due upon a contract for building a residence for the warden of the state prison at Waupun, between said Alexander Carnagie and said board, a trust fund for the payment of the petitioner’s claim.

G. SiébeoKEE, Circuit Judge. This is an. appeal from an order which refused to set aside a judgment for $96.13 and costs, entered on a note and warrant of attorney, and ah execution issued thereon.

Appeals from orders of the circuit court for Dane county: E. G. SiebeoKee, Circuit Judge.

Appeals from a judgment of tbe circuit court for Sauk' county: R. G. SiebeoKEk, Circuit Judge. This was au action to foreclose certain mechanics’ liens-on the premises in question, assigned to the plaintiff, and to have them, with the mortgage executed thereon to him, adjudged a first lien on the premises.

0. Ludwig, Judge. The facts are stated in the opinion. To the point that the park land contracts constitute an indebtedness of the city, they cited Earles v. Wells, 94 Wis. 285, and cases cited; Zalee Go. v. Graham, 130 U. S. 674; Baltimore v. Gill, 31 Md. 375; Ironwood Water Worles Go. v. Trebileoek, 99 Mich. 454; Brown v. Gorry, 175 Pa. St. 528; Newell v. People ex rel. Phelps, 7 PT. Y. 9; La Porte v. Gamewell Fi/re Alarm Tel. Go. 45 PT.

Eeeoe to review a judgment of the circuit court for Bay-field county: JohN K. Pabish, Circuit Judge. The plaintiff in error was convicted of the crime of adultery. It was alleged against him that, having a lawful wife (one Octavia Arvasa) living, he had contracted a formal marriage with one Yienna Michaud, and was living with her in unlawful cohabitation.

ApplioatioN for leave to bring an action in the name of the state: The application was denied December 20, 1897, and the following opinion was filed January 11, 1898:

CjsRtiobaRI to review proceedings of the circuit court for Green Lake county: Geo. W. Bubs ell, Circuit Judge.

B. Wyman, Circuit Judge, This is an action to recover the value of a team of horses hilled by a collision with defendant’s passenger train upon a country highway crossing about a half mile northwest of the city of Augusta, in Eau Claire county, on the 19th day of March, 1892. .The highway in question runs directly east and west, and is a main road, traveled extensively.

JB. Wyman, Circuit Judge. The facts are stated in the opinion. They contended, inter alia, that the article published by the plaintiff and pleaded in justification was published on May 14, and defendant’s attention was called to it on the same day, while the libel sued on was published on May 28.

<p> 'Vendor and purchaser of land: Failure to deliver possession: Rescission: Judgment: Voluntary payment. </p> <p>1. The purchaser of a farm, having commenced an action to rescind the contract of sale, refused to take possession of the property when it was tendered to him during the months of March and April. Thereupon the vendor, who was a nonresident, for the protection of both parties, let the farm for the season, under an agreement for a fair division of the crops with the person ultimately found ■entitled thereto. Before the lease expired the action for rescission was decided against the purchaser, and he immediately demanded possession. Held, that the vendor’s inability to deliver possession at that time because of the lease did not authorize a rescission, since the purchaser by his own acts had helped- to bring about the existing state of affairs.</p> <p>2. In an action to recover back the purchase price of the farm on the ground of such failure to deliver possession, the vendor set up a counterclaim for taxes paid by him, which the purchaser had agreed to pay. Held, that a judgment offsetting such taxes against the crops was erroneous, the crops being in no sense before the court.</p> <p>3. Where the vendor under a land contract voluntarily pays taxes which the purchaser had agreed to pay, before the same became delinquent, he cannot recover the amount paid from the latter.</p>

J. Vinje, Judge. Personal injuries. The plaintiff, in June, 1895, was a minor, seventeen years and four months old, and was employed by the defendant in its sawmill at Cedar Falls, operating a lath machine. He had worked for .the defendant company four summers in the same mill; the first two summers being employed in laying up bolts or slabs on one side of the lath table for the bolters, and the last two summers in sawing lath at the lath machine.

Gr. Siebeckeb, Circuit Judge. contended, inter alia, that the modification of the rule requiring a vendor who elects to rescind a contract of sale to rescind in toto, adopted in Bhode Island and Nebraska {Sisson, Potter & Co. v. Ilill, 18 B. I. 212; Syms v. Benner, 31 Neb. 593), by which equitable principles have been applied in replevin, is contrary'to the great weight of authority.

G. SiebeoKee, Circuit Judge. August 23, 1894, C. J. Arthur made an assignment to the garnishee, J. II. Arthur, for the benefit of creditors. All the assignment papers were properly executed and filed so .as to comply with the statutes of this state respecting such ■proceedings, except that the assignee, by mistake, failed to sign his bond.

<p> Estates of decedents: Judgment: Mistake: Correction of record. </p> <p>Upon final settlement of the estate of a testator there was no contest or dispute concerning the construction of the will, but it was understood and agreed by counsel for the' executors, the guardian ad litem for the remainderman, and the county judge that the order assigning the residue should be substantially in the language of the will, and a judgment to that effect was orally announced and rendered; but by inadvertence or mistake the judgment as drawn by the attorneys for the executors and actually signed and entered was substantially different, the life tenant being given more apparent authority with reference to the disposal of the corpus of the estate. Held, that the record could be corrected, upon application of the remainderman after the death of the life tenant, so as to conform to the judgment actually pronounced and rendered.</p>

<p> Vendor and purchaser of land: Agreement to support: Rescission: Sufficiency of evidence. </p> <p>In an action by an aged person to rescind a conveyance of land made to his son in consideration of an agreement to pay a certain annuity and to furnish living rooms and provisions for himself and wife during their lives, findings of the trial court that there had been a substantial breach of the agreement on the part of the defendant, entitling the plaintiff to the relief asked, are held to be sustained by the evidence.</p>

<p>Foreign building and loan associations: Deposit of securities with state treasurer: Ultra vires: Application of proceeds after insolvency: Deceivers: Constitutional law: Waiver.</p> <p>1. The directors of a foreign building and loan association constituted the state treasurer a depository “for the purpose of temporary ■convenience in complying with the laws of Wisconsin in regard to the deposit of securities,” and resolved to “comply with the Wisconsin law as soon as possible.” Shortly thereafter officers of the association deposited with said treasurer over $100,000 of its r securities, and the association received a license to do business in this state. Secs. 2014a, 20146, S. & B. Ann. Stats., under which the deposit was made, provided that said treasurer should hold the securities so deposited in trust until all shares held by residents of this state had been fully redeemed, and until the contracts and obligations of the association to persons and members residing in this state had been fully performed and discharged. When the first deposit was made the articles of incorporation of the association authorized the directors to dispose of its mortgages as provided by the by-laws, but no by-law on that subject had been passed. Within a few months the articles were amended so as to prohibit the association from disposing of its mortgages. Said .articles also provided that the directors might enter into such contracts and agreements and appoint such agents as they may deem for the best interest of its affairs. The statutes of its domicile authorized such associations to deposit their securities in other states for the purpose of obtaining permission to enter and do business therein, and contained provisions regulating such transfers, apparently designed to facilitate the convenient using and tracing of the securities deposited for that purpose. The deposits were changed or renewed from time to time as occasion required, and a new license granted from year to year. The association became insolvent, and a receiver was appointed for it in the state of its domicile. Thereafter plaintiff, a resident shareholder, procured the appointment of a receiver in this state for the purpose of sequestrating the securities deposited with the state treasurer and distributing the proceeds among residbnt shareholders. To this-action the first-mentipned receiver was made a party, and he appeared and claimed the securities. Held:</p> <p>(1) That the securities would be presumed to have been deposited in a bona fide attempt on the part of the association to comply with the laws of this state.</p> <p>(2) That the failure of the association to comply with the statu-toiy provisions of the state of its domicile in making such deposit did not render the transfer void, compliance with such provisions having been intended as a matter of local administi’ation merely, and not as a condition precedent to the right to make it.</p> <p>(3) That such deposit was within the lawful power of the association as represented by its directors, and the action of the directors in making it was binding upon the association and all its members, to the extent and according to the terms of the statute under which it was made.</p> <p>(4) That the receiver appointed in this state was entitled to retain and sell or collect the securities, and apply the proceeds to the redemption in full of all shares held by residents of this state-</p> <p>and to the performance and discharge of all the association’s contracts and obligations to members and persons residing herein, the residue if any to be turned over to the foreign receiver.</p> <p>(5) That the corporation and its stockholders had waived the-right to question the validity of the trust, or the constitutionality of secs. 2014a, 2014b, 8. & B. Ann. Stats., on the ground that they impaired the obligation of contracts, even though in case of insolvency a preference was thereby secured to resident shareholders.</p> <p>2. The legislature has power to pass laws for the protection of its citizens against irresponsible foreign corporations by requiring them, as a condition precedent to transacting business in this state, to deposit securities in trust for the redemption of their obligations to persons residing herein. 1</p> <p>On the distribution of the assets of an insolvent insurance company, see an extensive note to Boston & A. B. Có. v. Mercantile T. & D. Co. (83 Md. 535), in 38 L. E. A. 97. — Eep.</p>

<p> Mortgages: Foreclosure: Homesteads. </p> <p>A mortgage covering a homestead and other lands was foreclosed and the entire premises sold, the nonexempt portion being worth less than the amount of the debt. Held, that the surplus money remaining after satisfaction of the mortgage debt should be deemed proceeds of the sale of the homestead, and exempt from execution, under sec. 2988, E. S.</p>

G. SiebeCKee, Circuit Judge. Plaintiff and the principal defendant resided in Chicago. 'The former sued the latter in the circuit court for Dane .county, and as incidental thereto commenced this garnishee .action. The affidavit which was the foundation of the garnishee proceeding was in the usual form, stating, among, other things, that plaintiff verily believed that the defendant was not possessed of property liable to execution sufficient to satisfy the plaintiff’s claim.

<p>Appeal from a judgment of the circuit court for Dane county: E. Gr. SiebeoKee, Circuit Judge.</p> <p>This action was commenced in justice’s court. The complaint alleges, in effect, that January 1, 1881, the plaintiff and one E. W. Dufrenne were copartners doing business as ■merchants under the firm name of Dufrenne & Lyle at Middleton, and had been for some time prior thereto; that on that day the defendant was indebted to the firm on account for merchandise in the sum of $166.59, and gave his note to the firm therefor, payable one year after date, with interest at ten per cent, until paid; that the interest was paid thereon to January 1, 1890; that payments had been made thereon from time to time (the last being made February 7, 1894); that Dufrenne died July 18, 1892; that the plaintiff, as surviving partner, was the owner and holder of the note; and that there was due thereon $200, for which he prayed judgment and costs. The answer alleged, in effect, that on and prior to January 1, 1883, the defendant delivered to the firm property and money in full satisfaction, discharge, accord and satisfaction of the note in question, and also pleaded the six-years statute of limitations.</p> <p>The cause having been referred to a referee to hear, try, and determine, and a trial having been had before such referee, at the close thereof the referee found, as matters of fact, in effect, that the note was given to balance a running, account, as stated in the complaint; that the store accounts between the parties during 1895-96 were distinct from the accounts and note involved in this suit, and had been balanced, and were disregarded; that between January 1,1881, and February 7, 1894, no mention of the note was made by either party to the other, but that after that time the plaintiff called the defendant’s attention to the note; that prior to February 7, 1894, and after that date, the defendant had been asked for money by the plaintiff, without any statement as to the obligation upon which it was exacted; that between January 1, 1881, and February 7, 1894, when the defendant made the last payment to the plaintiff, the defendant ran an open store account with the plaintiff, and at various times between said dates paid money to the plaintiff when he owed nothing on his book account, and received credit therefor on the plaintiff’s books, without reference to the account or the note; that during that time neither party made any application of such payments, except to credit the defendant therefor on the plaintiff’s books; that the defendant expected to pay both the note and his book account in cash and produce; that, whenever the defendant paid cash or delivered produce to the plaintiff, he merely instructed the plaintiff to give him credit for the same; that in 1893 the plaintiff wrote to the defendant, asking for a payment pf money without specifying for what the same was exacted, whereupon the defendant made a payment to the plaintiff, but made no application of the same; that when the defendant received the letter he supposed his account was paid; that after February 7, 1894, when the last payment was so made by tbe defendant, the plaintiff, for the first time, made application of the balance then standing to the defendant’s oredit by making indorsements of interest on the note, and by preparing a pass book containing the charges of interest on the note, and also the credits of payments made by the defendant, including the payment of February 7,1894, which pass book was delivered to the defendant; that March 31, 1893, the defendant made his last purchase from the plaintiff, and, after deducting the amount of the purchase, there remained a considerable balance standing on the plaintiff’s books to the defendant’s credit; that February 7, 1894, the defendant made a further payment of $20 to the plaintiff, but without any inquiry as to the condition of his obligations to the plaintiff, or making any application of the payment or of the amount previously standing to his credit.</p> <p>As conclusions of law the referee found, in effect, that the plaintiff, as such surviving partner, was entitled to maintain this action; that the plaintiff had the privilege of .applying •the payment of $20 so made February 7, 1894, upon the note, and that the same was thereby revived and renewed, so that it became a valid, legal, and subsisting debt due from the defendant to the plaintiff; that the plaintiff was entitled to judgment on the note against the defendant in the sum of $200.</p> <p>Upon application to confirm the report, the court ordered the referee to find additional facts. In obedience to the order the referee found, as additional facts, the following: The state of the, accounts between the parties at the end of each year from January 1, 1881 (leaving out of consideration the principal and interest on the note), was as therein stated (showing a balance due the defendant at the end of each year of from $72 to $123.38, except January 1, 1883, when there was $.19.60 due the firm). The state of the accounts between the parties at the end of each year from ■January 1,1881 (taking into consideration the annual interest on the note in question), was as therein stated, in favor of the defendant for six years between January 1, 1882, and' January 1, 1889, and in favor of the firm, and the plaintiff' for eight years between January 1, 1883, and January 1, 1895. The defendant never intended to make the plaintiff a gift of any money or property referred to therein.</p> <p>The court thereupon confirmed the report of the referee, and ordered judgment in accordance therewith. From the-judgment entered thereon accordingly the defendant appeals.</p> <p>They contended, inter alia, that the taking of the debt out of the bar of the statute must be by intent of the debtor. The payment made by him must be to the debt barred, and the directness of reference to the particular debt must be apparent. The particular debt must be in the debtor’s mind when he makes the payment, and the payment must not be won from him _ by subterfuge or a long series of skillful maneuvers wherein the barred debt is not once mentioned. Pritchard v. Howell, 1 Wis. 131; Brown v. Parlcer, 28 id. 21; Walrod v. Manson, 23 id. 393; Martin v. Fox <& Wis. Lmp. Co. 19 id. 552; Carpenter v. State, 41 id. 36; Fngmann v. Estate of Immel, 59-id. 258; Tippets v. ILeane, 1 Cromp., M. & R. 252; Mills v. Fovilces, 5 Bing. N. 0. 455; Linsell v. Bonsor, 2 id. 241; Jones v. langhorne, 19 Colo. 206; Lisner v. Ilitson, 95 Oa. 527; Tiedeman, Commercial Paper, § 377; Gage v. Dudley, 64 N. H. 271; Holt v. Gage, 60 id. 536, 541; Livermore v.. Band, 26 id. 90; Brown v. Latham, 58 id. 30; Pond v. Williams, 1 Gray, 630; Crow v. Gleason, 141 N. Y. 493; 1 Wood, Limitations (2d ed.), 271 et seq.; Harper v. Fairley, 53 N. Y. 442; Albro v. Figuera,, 60 id. 630; Austin v. MeClure, 60 Yt. 456; Cleaveland v. Dinsmore, 59 id. 436; Bobie v. Briggs, id. 450; Hallenbach v. Diclcmson, 100 Ill. 427; Armistead v. Broolce, 18 Ark. 521. . ,</p>

G. Siebeohee, Circuit Judge. This is an equitable action .brought to prevent the defendant from constructing on his own land; but in immediate proximity to the plaintiff’s land, a certain tile drain, from which, ifc is claimed, large quantities of water will percolate-through the soil into the plaintiff’s land, to his injury. The parties own adjoining farms, a large part of the defendant’s land being more than ten feet higher than the plaintiff’s land.

Gr. SiebeckeR, Circuit Judge. The defendant Abbott, January 17, 1896, executed and delivered to W. II. Alford, the garnishee defendant, an assignment of all his property for the benefit of his creditors.

G-. SiebeoKee, Circuit Judge. The plaintiff has' a claim against the defendant for work ■done- and materials furnished under a^contract for the construction of a sewer. He presented his claim to the common council of the defendant, for audit, on October 9,1896. It was referred to the proper committee of the council,- and has not further been acted upon by the common council. The plaintiff commenced this action-, for the recovery of the sum -claimed, March 9, 1897.

Appeals from judgments of the circuit court for Dane county: R. G-. Siebeoker, Circuit Judge.

<p>Appeal from a judgment of the circuit court for Manito-woc county: N. S. Gilsoh, Circuit Judge. The interveners 'moved to dismiss the appeal.</p>

G. SiebeoKeb, Circuit Judge. This is an action of ejectment, and was commenced by-William Brown, October 10, 1892, to recover an undivided four-tenths of an undivided one-half of a strip of land in Baraboo, four rods wide and forty rods long, and extending from the town line, at the south end of Oak street, south,, across Water street, the Baraboo river, the mill race, and the reservation, to the north end of Tine street, as indicated-on the old plat of the village of…

G-. Siebeokek, Circuit Judge. This is an action for the partition of certain real estate in Dane county. All parties claim'title under one Washington G. Winter, ivho owned the lands at the time of his death, July 20, 1852. Winter died without living issue; leaving, him surviving, his wife, Margaret Winter, who was then, to his knowledge, pregnant.

G-. SxebeoKee, Circuit Judge. This action was brought upon .a contract of life insurance, against the defendant, a corporation organized under ch. 43, P. & L. Laws of 1869, and acts amendatory thereof. It was organized to insure the lives of its members upon a mutual plan, similar to that generally adopted by so-called mutual benefit societies. Plaintiff’s husband, B. B. Hughes, became a member of the company in 1876, and was insured in the sum of $1,000.

G-. SibbeoiceR, Circuit Judge. This is a proceeding for the condemnation of certain lands for tbe right of way of the respondent’s railroad, instituted by the appellants against the railroad company. The road has been built and in complete operation since June, 1856. The appellants are the heirs at law and devisees under the will of a former owner of the land. One Alexander S. Hooe was seised of the lands at the time of his death.

Action by taxpayers of the county of Forest against the town of Grcmdon, in said county, and the town treasurer of such town, and the executors of the estate of R. B. Lang-don, deceased, to enjoin .the payment of a judgment against such town rendered in favor of Langdon in his lifetime, and owned by such executors as his personal representative.

<p>Appeal from a judgment of the circuit court for Outa-gamie county: Jomr Goodland, Circuit Judge.</p>

On the evening of May 13, 1885, the plaintiff, while driving upon one of the public streets of the city of Sheboygan, ran over a mound of earth placed in the street by the de1-fendant Keseberg, and was thereby thrown from his buggy and seriously injured. This action was brought to recover for such injuries. It has been tried several times, and has been before this court in one form or another four times. See 70 Wis. 318; 76 Wis. 335; 84 Wis. 302; 91 Wis. 191.

<p>Appeal from a judgment of the circuit court for Outaga-mie county: JoHN G-oodland, Circuit Judge.</p> <p>The plaintiff brought this action against the defendants for the alleged wrongful talcing and conversion of a stock of goods, the stock in trade of Jerry Strong, and which had been mortgaged by him to the plaintiff, August 24, 1888,. for $500, with interest until paid at eight per cent, per annum, said'stock being at the time in the possession of said Strong. It was averred that the mortgage was filed in the office of the city clerk, of Kaukauna, where Strong resided, on the same day, and the plaintiff demanded judgment against the defendants in the sum of $600, with interest, etc. It contained the usual power of seizure and sale, and stipulated that, as long as the conditions of the mortgage were fulfilled, said Strong was to remain in peaceful possession of the property, and in consideration thereof was-to keep the same in as good condition as it then was, at the cost and expense of the mortgagor. The defendants justified the seizure and alleged conversion under a writ of attachment in favor of the defendants as copartners under the name of Joannes Bros., for about $720, issued about the 5th of May, 1888, against said Jerry Strong, from the circuit court for Outagamie county, and it appeared from the said writ that the sheriff of said county levied upon and took into his custody and possession the property in question ; that by virtue of an order entered in the action wherein the attachment was issued the sheriff sold portions of the property as perishable, and the remainder was sold on execution issued on the judgment recovered against said Strong.</p> <p>Evidence was given tending to show that said Strong, upon and at all times from the date of said chattel mortgage to-the time of levying said attachment, conducted a general grocery business in Kaukauna, and merchandised, sold, and disposed of the stock in question covered by the said chattel mortgage, conducting said business in the ordinary and due course of business, and by the consent of the plaintiff and its agent, and disposed of the proceeds thereof as he saw fit in support of his family, and paying expenses of the business? and in the same manner as though no mortgage thereon had been executed. The mortgage was put in evidence, as well as the writ of attachment and proceedings thereunder, and also the judgment roll in the case of Joannes Bros, and others against Strong, showing a recovery in their favor against Strong of a judgment of $843.33 and $91.20 costs.</p> <p>The question litigated at the trial to which the testimony was principally directed was whether the chattel mortgage on the said stock was fraudulent and void as against the defendants and others of his creditors on the ground that the mortgagor carried on business in the store, and dealt with his stock, in the same manner, in all respects, after the mortgage was executed as before, and to the knowledge and with the consent of the plaintiff; that Strong did not account to the plaintiff for the proceeds of sales made from day to day, and it never asked or demanded that he should; that it knew that Strong had no means of paying the current expenses of the business and supporting his family other than from the stock, and knowingly permitted him to sell and dispose of the stock, and use the proceeds as he pleased in paying store and family expenses and debts other than the plaintiff’s, pursuant to an implied or tacit understanding to that effect. The stock was sold under the execution and judgment.</p> <p>The trial was before the court without a jury, the court finding that the allegations of the complaint were true; that the defendants wrongfully took possession of the goods and chattels described in the chattel mortgage, of the value of $800; that it was entitled to recover of the defendants the sum of $500, with interest at eight per cent, from February 24, 1888, amounting to $843.33, with costs, and judgment was given accordingly, from which the defendants appealed.</p> <p>The defendants asked the court to find in support of their contention substantially as stated, and that the plaintiff permitted Strong to remain in possession of the mortgaged property, and continue his business, after its execution, until the attachment was levied, in precisely the same manner as he had done before the execution of the mortgage, using the proceeds to replenish the stock from time to time, and disposing of the balance of such property as he pleased, pursuant to an understanding or tacit agreement between Strong and the plaintiff to that effect; and that the chattel mortgage was fraudulent and void as against Strong’s creditors, including the defendants. These findings were refused.</p> <p>It appears from the evidence of Towsley, the plaintiff’s cashier, that he made Strong the $500 loan Eebruary 24, 1888, and took the note and chattel mortgage, as agent for the plaintiff. May 5, 1888, Joannes Bros, and Weise & Holl-inan took the stock under an attachment, Sheriff Golden acting as officer in the matter, in Strong’s store. During the time he was in business, from July 1, 1887, to about December 1st, he bad seen Strong in the bank. He had no •deposit there, but did have Eebruary 24th. His store was dhe next store to the bank, about twenty feet from the door of the bank. The stock was groceries, crockery, glassware, lamps, and fixtures. Before making the loan, he went into •the store, and saw what he had there, and went again on May 3d. The stock looked the same as it did February 23d or 24th, as to quantity and quality. “ I suppose he had been in possession of the stock from February 24th to May 5th. I knew he kept right on in his business just as before. I ■understood he was there continuing the business the same as before. I knew he was dealing there in business. I supposed he was paying expenses. To my knowledge, he continued dealing with this stock just the same after February 24th as he did before. Don’t know that we had any understanding that he was to add to the stock he then had. I •suppose he carried on his business just as he did before. He rented the store from Mr. Reuter, the president of the plaintiff bank. I paid no attention at all to the store after I took the chattel mortgage, no more than I did before¿ Went on, and let him do as he pleased. Did not pay any attention to it. Have no positive recollection of buying anything there between February 23d and May 3d, but my family bought, I think, in April, .1888.”</p> <p>Jerry Strong testified on the part of the defendants that he executed the mortgage at the request of Towsley, plaintiffs cashier, on the stock of goods, February 24, 1888, and ivas then indebted between $1,700 and $1,800. “ I bought goods from seven or eight different parties, and was owing at least seven or eight different parties for merchandise when the mortgage was given. After the mortgage was executed, I continued the business Avith the stock1 of goods as I had done before. The business ran the same as ever. The giving of the mortgage made no difference in the management, of the business, and it so continued up to the time I quit business. I had no property other than the stock of goods,, fixtures, etc., in my business, aside from the household furniture and the horse and delivery rig, and no other income than that Avhich I derived from my business and the stock of goods that had been mortgaged. With the proceeds of the business from day to day I paid my bills as fast as I could, and lived, of course. Paid bills right along that came due out of the proceeds of the stock that I received after the mortgage was given. I had a family at the time, and was keeping house. Part of the proceeds of the business was used in the support of my family. We derived our support from no other source than the proceeds of this business. Continued to pay creditors, support my family, and pay the expenses of the business as I had done before, and conducted my business in precisely the same manner as before the mortgage was given, and as though it had never been executed. No part of the proceeds of the business was ever paid on the mortgage. No portion of the mortgage has ever been paid. Was never asked by the bank or its officers, or by the cashier, to pay any part of the proceeds upon that liability. I ■purchased new goods as before,— approximately between. :$400 and $500 worth,— and'they were put in with the others. I don’t know whether Mr. Towsley was acquainted with my financial condition. He never asked any questions. I think ike knew this business was my only source of income. He knew I was not doing anything else. I saw him every day, :and quite often during the day I was in the bank and he in the store. We were close neighbors. From the proceeds of the business I bought drafts from the bank, subsequent to the mortgage, to pay bills; and I supposed he knew of it, be ácting as cashier. I never deposited any money. Mr. Towsley used to be in the store every day, probably once or twice, and knew how I was managing the business. He never made any objection to my disposing of the proceeds as I pleased. He never said a word about it. He knew I was receiving money for the sales, and never made any demand on me for the sales, nor did he direct how to dispose of the money. When the mortgage was executed, neither he mor any other officials of the bank directed in any manner whatever how the proceeds should be disposed of. •Q. Tacitly understood that you should go on with the business as before? A. I suppose so, there was nothing said. . . . Peter Neuter, the president, dealt with me after the mortgage was executed and before, and paid me the money ■on his bills after the execution of the mortgage the same as ¡before. He was there in the store Vhen I was making sales .and receiving money, but did not direct how the proceeds should be disposed of. I suppose he knew, in a general way, .about my financial affairs. He could see. That is about all. I rented a house, and kept house, and clothed my family; and all this came out of the business up to the time of the •attachment.”</p> <p>• There was other evidence tending to prove the facts relied on by the defendants.</p> <p>In rebuttal Mr. Towsley testified that when the loan was made to Strong he knew nothing of his financial condition; that the loan was put to Strong’s credit, and checked out ■by him in buying drafts; that he had no recollection of being in the store but once. Mr. Reuter, the president, also testified that he did not know anything about Strong’s financial affairs on February 24, 1888, or between that date and May 3d; that he never owed him or paid him any bills; and •during the time Strong was conducting his business he (witness) was out of town most of the time; that he could see goods there, and, so far as he knew, i't was the same one ■time as another.</p> <p>They ■contended, inter alia, that the only inference to be drawn from the evidence was that there was a tacit or implied agreement that the mortgagor should deal with the goods and continue the business after the mortgage in the same ■manner as before, applying the proceeds to the payment of his personal expenses. The mortgage was therefore void •as to creditors of the mortgagor. Place v. Langworthy, 13 Wis. 629; Steinart v. Peuster, 23 id. 136; Anderson v. Patterson, 64 id. 557; Barnet v. Fergus, 51 Ill. 352; Bosenthal v. Vernon, 79 Wis. 248; Potts v. Fart, 99 N. Y. 168; Gcm-gen v. Hachemeister, 114 id. 566, 571; Griswold v. Sheldon, 4 id. 581, 588; Southard v. Benner, id. 424, 429; Wilson v. Vaight, 9 Colo. 614; First Hat. Banh v. Wiitieh, 33 Fla. 681; Standard Imp. Go. v. Schultz, 45 Kan. 52; Brown v. Barber, 47 id. 527; Wile v. Butler, 4 Coló. App. 154; Putnam v. Osgood, 51 N. H. 192, 208; Huschle v. Morris, 131 Ill. 587; Simmons v. Jenldns, 76 id. 479, 483; Goodheart y. Johnson, 88 id. 58, 61; Smith v. Epiley, 55 Kan. 71; Joseph M. Hayes Woolen Go. v. Gallagher, 58 Minn. 502; Tallón v. Ellison, 3 Neb. 73; Martin-Perrin M. Go. v. Perldns, 63 Mo. App. 310; Blaheslee v. Bossman,é3 Wis. 116,123; Mer-cha/nti <£ M. S. Banh v. Lovela/nd, 84 id. 611.</p>

<p>Appeal from a judgment of the superior court of Douglas county: Chaeles SMith, Judge.</p> <p>The action is to recover the amount of one half of two promissory notes executed by one Henry O. Elsroad to the plaintiff, which were secured by a mortgage upon land. Elsroad sol'd a part of the lands which were subject to the mortgage to the defendants, who assumed and agreed to pay one half of the mortgage debt, as a part of the consideration to be paid by them for the land. The allegation of the complaint is that, “ as part of the consideration and purchase price of said premises, . . . the said defendants Thompson and Ewrhart, in the deed conveying the said prern*-ises to them, expressly assumed and agreed to pay one half of . . . the said notes and mortgage.” There is a demand for judgment for the amount of one half of the notes. There was a general demurrer, which was sustained, and the plaiutiff appeals from a judgment dismissing the action with costs.</p>

This was a garnishee action commenced in justice’s court. Everything was done requisite to give the justice jurisdiction, unless there was a failure in that regard by reason of no traveling fees or fees for attendance having been paid to the garnishee defendant.

D. MaRshall, Circuit Judge. October 6, 1892, the plaintiffs and the defendant entered into an agreement in writing wherein and whereby the .plaintiffs agreed to out, log, and bank, in a good and workmanlike manner, on the Brule river, all the pine on the lands described, and the defendant therein agreed to pay them therefor $3.75 per thousand feet, as follows: $3 when delivered on the bank of the river, and the balance June 1, 1893; the settlement to be made as per scale of…

<p>ERROR to review a judgment of the circuit court for Ash-land county: John K. Parish, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for St. Oroix county: E. B. Bundy, Circuit Judge.</p> <p>Action to recover of the defendants as copartners, $913.31, alleged to have been collected by defendants for plaintiff as and for dividends on fifteen shares of corporation stock, together with the interest on such sum from the time so collected. None of the defendants were served or appeared in the action, except Isaac Staples. He answered denying the allegations of the complaint as to the partnership, also the allegations in respect to the agreement to collect dividends for plaintiff, and that dividends were collected and not paid or accounted for. At the close of plaintiff’s evidence there was a motion for a nonsuit on the ground that there was no proof of the partnership. The motion was denied. At the close of the evidence it appeared that R. Hersey, named as defendant, was not a member of the firm of Hersey, Staples & Bean, but that there was such a firm, and that Samuel R. Hersey was a member thereof, instead of R. Hersey; that Samuel R. died; and that the partnership was dissolved before the commencement of the action. On motion the court allowed the complaint to be amended accordingly, and then directed a verdict in plaintiff’s favor generally, for dividends which the evidence showed were collected on plaintiff’s stock and not accounted for, with interest thereon. Judgment was thereafter rendered against Isaac Staples alone, from which this appeal was taken.</p> <p>To the point that the entry of judgment against the appellant was proper, they cited Van Fess v. Corkins, 12 Wis. 186; Pecker v. Trilling, 24 id. 610; Smith v. Cassell, 70 id. 567; Farrington v. Figham, 15 Barb. 524; Parker v. Jackson, 16 id.'33; Witherhead v. Allen, 28 id. 662; People v. ■Gram, 8 How. Pr. 151; Benson v. Paine, 17 id. 407; Brums-Jeill v. James, 11 U. Y. 294; McIntosh v. Ensign, 28 id. 169; Stedeker v. Bernard, 102 id. 327.</p>

<p>Appeal from a judgment of the superior court of Douglas county: ChaRles Smith, Judge.</p>

<p>Appeal from an order of the circuit court for Douglas •county: A. J. YiNje, Circuit Fudge.</p> <p>This was an action to recover instalments due upon the lease of certain real estate in the city of Superior, which lease was made by one Lewis to the defendants’ firm in April, 1892, the rentals having been assigned by Lewis to the plaintiff herein in June, 1893. The complaint was verified by Mr. Gilbert, the plaintiff’s agent and attorney, the plaintiff himself being a nonresident. The defendants were also nonresidents, and an affidavit for publication was made- and filed, together with the complaint,-upon which the order of publication was made, and thereafter personal service of the summons was made upon the defendants Ulmer and' O'Meis. At the time of the commencement of the action; an affidavit for writ of attachment was also made and filed; and a writ issued, and certain personal property of the defendants attached. Judgment was thereafter rendered by default against all the defendants for the amount claimed in the complaint, and shortly afterwards the defendants Ulmer and O'Meis appeared specially ■ and moved to set aside the-judgment and attachment proceedings for want of jurisdiction. This motion was denied, and the defendants appeal.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: A. J. YiNje, Circuit Judge.</p> <p>The complaint alleges, among other things, that May 16, 1892, Mack 0. Mehan mortgaged two parcels of real estate owned by him to plaintiff to secure the payment of $3,003 May 6, 1895, with interest payable semi-annually at a rate stated, according to six promissory notes and coupons attached thereto; that default was made in the payment of one set of the interest coupons, whereupon the mortgage was foreclosed by advertisement under the power contained therein and the statutes in such case made and provided; that at the foreclosure sale one of the lots was sold to plaintiff for $150 and the other for $114.96; and that certificates of sale were duly made, delivered, and filed. The complaint further alleged that Jennie E. Mehan, wife of the mortgagor, without consideration and with intent to defraud plaintiff, conspiring with her son, Edgar G. Mehan, to defraud plaintiff, obtained the legal title to the mortgaged property and placed a second mortgage on each lot, running to her said son, to secure the payment of $25; that thereafter said Edgar O. Mehcm, in order to exercise his right as subsequent mortgagee to redeem from the foreclosure sale, paid to the proper officer the amount called for by the certificates of sale, whereupon such officer executed and delivered to him certificates of redemption, and thereafter, at the proper time; such officer executed to said Edgar O. Mehan sheriff’s deeds, which were duly recorded, and under which said Mehan thereafter claimed to own the mortgaged property free from any claim of plaintiff under his mortgage or the certificates of sale issued on the foreclosure thereof; that the plaintiff failed to receive the redemption money paid as aforesaid, and demanded that the sheriff, in accordance with the terms of the certificates of sale, make deeds to him, which was refused. The prayer of the complaint was, in substance, that the certificates of redemption and the deed issued to Edgar G. Mehan be canceled, and that the officer who made the sale be required to make a deed to plaintiff, pursuant to the certificates of sale.</p> <p>The court found the facts as alleged in the complaint, except as to the allegation of fraud. On that subject the finding was to the effect that the second mortgages were made to secure honafide indebtedness, and that all the proceedings in regard to obtaining the title by Jennie E. Mehan, the making of such mortgages, and the redemption by the second mortgagee, were in good faith and free from fraud. The conclusions of law were that the title of Edgcvr O. Mehan, under his sheriff’s deeds, was perfect and free from any claim of plaintiff under his mortgage or certificates of sale. Judgment was entered accordingly, from which this appeal was taken.</p> <p>They contended, inter alia, that Edgar O. Mehan did not pay the sum necessary to be subrogated to the rights of plaintiff, the general equitable rule being that the whole amount of the mortgage debt is the amount to be paid by the subsequent incumbrancer in order to entitle him to whatever rights are possessed by the prior mortgagee. Upon another hypothesis, and making no objection to the execution of the deed to. the junior mortgagee, he does not by such deed escape the incumbrance on the property. Oox v:. Wheeler, 7 Paige, 248, 257, 258; Tice v. Annin, % Johns. Ch. 125; Benedict v. Oilman, 4 Paige, 58; Bradley v. Snyder, 14 Ill. 263; Collins v. Biggs, 14 Wall. 491.</p>

<p>Agency: Brolcers: Sale of logs: Right to commission: Lumber inspectors;• Evidence.</p> <p>1. In an action against the vendors of logs to recover a commission for effecting the sale thereof, there was evidence tending to show, among other things, that February 20th the purchaser wrote the plaintiff inquiring for logs; that in February or early in March the defendants agreed to pay the plaintiff for finding a purchaser for the logs whatever the same should bring over and above a. certain price; that March 5th the plaintiff informed said purchaser that defendants’ logs could be had at the price subsequently paid for them, and recommended their purchase; and that the purchaser thereupon called upon the defendants and made the purchase. There was no evidence that the purchaser ever paid, or offered or promised to pay, to the plaintiff anything for securing such purchase. Held, that a finding that the plaintiff was the agent of the defendants, and not of the purchaser, was sustained by the evidence.</p> <p>2. A provision in the contract for the purchase of the logs that the plaintiff should review and inspect the scale made by the defendants when the logs were banked, would not affect his right to recover commissions earned under the contract with the defendants, his services under the former contract being independent of those performed under the latter.</p> <p>3. An agent employed to procure a purchaser for logs at a fixed price, without authority to make or close a contract for the sale thereof, becomes entitled to his commission when he produces a responsible purchaser ready and willing to purchase them at the price agreed upon.</p> <p>4. The mere fact that a person was the lumber inspector in one district did not preclude him from making a contract by which he was to receive a commission for procuring a purchaser for logs situated miles away in another district.</p>

<p>(1) Appeal: Findings. (2) Mortgages: Foreclosure sale: Interest of mortgagee under tax certificates.</p> <p>1. Findings of the trial court will not be disturbed on appeal unless they are against the clear preponderance of the evidence.</p> <p>2. Under sec. 3169, B. S. 1878 (providing that the sheriff or referee making a foreclosure sale “shall make, execute and deliver to the purchaser a deed of the premises sold . . . which deed, upon the confirmation of such sale, . . . shall be a bar to all claim, right or equity of redemption therein, of and against the parties to such action, their heirs,” etc., and also against all persons claiming under them subsequent to the filing of the notice of Us pendens), a referee’s deed to the purchaser, upon the confirmation of the sale, passed to him all the right, title, or interest of the mortgagee in and to the premises sold, including his interest in the premises arising under tax certificates held by him at the time of the sale.</p>

J. YiNje, Circuit Judge. Action of replevin to recover property taken by defendant from the plaintiff, pretending to act under an execution against Orson W., Joseph M., and John D. Densmore.

<p>Appeal from, a judgment of the circuit court for Polk county: A. J. YiNje, Circuit Judge.</p> <p>This was an action for the recovery of certain real estate, called the “Hermitage Earm,” situated on the north shore of Poplar lake, in Polk county, of which Leonard W. Yolk died seised August 19,1895, having made on the 1st of April, 1895, a written agreement with the defendant, Stowell, by which it was agreed that the latter should take charge of the management, care, and cultivation of said farm, or any additional adjoining land that might be thereafter purchased by said Yolk, for a term of five years from that date, subject to extension, as the parties might mutually agree. , The-defendant was to devote his entire time and best effort to the management, care, and cultivation of said farm, and to-faithfully and diligently serve the exclusivo interests of the said Yolk therein, for the designated period. Yolk agreed to pay the defendant thefefor a monthly salary of $30, pay‘able at the end of each month, and to furnish him- a hired' man or strong boy of about eighteen years of age, and during harvest time, if necessary, to furnish an extra man or boy. Resides the monthly salary or wages to be paid said Stowell, said Yolk was to allow him additional fifteen per cent, of all increase of stock (quadrupeds and bipeds) born or hatched on the said farm; also fifteen per cent, of all products of the soil, field, and garden.</p> <p>Among other things, it was agreed that any stock might be sold from time to time or increased according to the wishes or direction or option of Yolk. The defendant was “ to have the use of the farm house, fuel, and private garden .free.” The “Lodge,” so called, on the premises, was exclusively for the use of Yolk, as well as the log house at east end of farm, with a small garden and granary. All original stock was to be kept good according to schedule, if the sixty acres, more or less, produced food sufficient to feed them through the winter. It was agreed that at the end of every six months the monthly percentage might be increased or reduced, according to the yield of stock and products of the-soil, as might be mutually agreed upon between said Yolk and the defendant. “In case of failure or neglect of the defendant to perform the covenants and agreements on his part, . . . the contract should, at the option of said Yolk, become forfeited and determined;” and, in such event, the defendant agreed “to immediately surrender up the premises to said Yolk.” In case of the death of the defendant before the expiration of the contract, the same should terminate, and any wages or percentages due to him at that time were to be paid to his heirs or legal representatives “ by said Yoik, or his heirs or representatives or assigns, upon whom this contract shall be binding.”</p> <p>By the last will and testament of said Yolk, which has been duly admitted to probate, he devised the premises in question to his grandchildren then living, the issue of his son 'Stephen A, Douglas Voile and his wife, Marion Laribee Yolk, and to his grandchildren then living, the issue of his daughter Elizabeth Honora and her husband, William B. Colt, naming them, or any other grandchildren who might thereafter be born; that is to say, as each of said grandchildren should reach the lawful age, he or she should be entitled to their proportion of the revenues, profits, and benefits of whatsoever kind of said farm, to be divided by the probate judge of said Polk county, or such trustee as he might appoint, as the guardian and trustee or executor. Their parents, during the minority of the grandchildren, were to be ■entitled to all revenues, divided equitably, etc.</p> <p>The parents of the grandchildren mentioned in the will, Stephen A. Douglas Voile and Nora Voile Oolt, are children ■of the testator, and they brought this action’for the recovery of the premises in question, charging the defendant with unlawfully withholding the same. The answer was a gen-oral denial. II. P. Burdiele, administrator of the estate of said Leonard W. Yolk with his will annexed, was subsequently joined as a party plaintiff.</p> <p>Upon trial by the court, the facts were found as stated, .and that the defendant had occupied the premises under and by virtue of said contract from its date, and still occupied the same, and that said Leonard W. Yolk lived upon the same after the contract was made to the time of his death. The circuit court held that the defendant was entitled to the possession and occupancy of the farm house on the premises, and such possession as would enable him to take charge ■of the management, care, and cultivation of the farm according, to the terms of the contract; and that the plaintiffs were not entitled to the exclusive possession of the premises; and gave judgment dismissing the action, from which the plaintiffs appealed.</p>

<p> Limitations: Pleading: Taxation: Restraining issuance of deed: Matters affecting groundwork of tax: Improper assessment: Tender of amount justly chargeable. </p> <p>1. The admission of service indorsed upon the back of a summons and complaint cannot be considered in passing upon a demurrer based' upon the statutes of limitation, since, under sec. 2649, E. S. 1878, a demurrer reaches only such defects as appear upon the face of the complaint.</p> <p>2. In an action to restrain the issuance of a tax deed, to set aside the tax sales, and for a reassessment, allegations that the common council of Superior levied upon the taxable property of the city a certain amount for the “general fund,” without further explanation; that the county treasurer added an excessive amount of interest;' and that the requisite notices for making certain im- . proveniente for which the property was assessed were not given, are held not to state a cause of action, since the matters alleged do not affect the groundwork of the tax.</p> <p>3. The intentional assessment of vacant lands for a much greater amount in proportion to their value than improved lands, for .the purpose of encouraging improvements, to the great injury of the owner of such vacant lands, is a defect going to the validity of the assessment and affecting the groundwork of the tax, subh as au-thoi'izes the interference of a court of equity.</p> <p>4. In an action to restrain the issuance of a tax deed based on such an assessment, payment or tender of the amount justly chargeable to the plaintiff’s lands need not be alleged, since it is impossible to ascertain, by computation or otherwise, the amount so justly chargeable; nor need the plaintiff allege a willingness to pay, an allegation of such mere mental condition, incapable of disproof, being of no benefit to defendant.</p>

<p>Contracts: Pleading: Recovery quantum meruit.</p> <p>"1, In an action to recover a balance alleged to be due for services rendered under an express contract to pay specified wages, plaintiff cannot — at least not without amending his complaint — recover the reasonable value of his services, or introduce evidence upon that question.</p> <p>■ 2. On October 6 defendant- hired plaintiff to take charge of his mill at. O. at $60 per month. During November and December defendant moved his mill to Gr. On December 27 the parties settled for the work already done at the agreed price, and plaintiff was fully paid. On January 1, following, plaintiff'at defendant’s request went to work at G. and continued to work there until September of the year following. He kept defendant’s books, but did not credit himself with the ¡$60 per month after January 1, as he had done before. Held, that he was not entitled to recover under the express contract for work done after January 1,</p>

<p>Appeal from a judgment of the circuit court for Douglas ■county: A. J. Vinje, Circuit Judge.</p> <p>Action on an administrator’s bond. The estate of E. Y. Mundy, deceased, being in process of settlement in the probate court of Douglas county, Wisconsin, such proceedings were there duly had that a claim for $2,000, with interest thereon from March 22, 1890, was allowed in favor of Robert 0. Ray and James D. Ray. Thereafter James I). Ray died, and Robert 0. Ray was appointed as executor of his estate. .Defendant Weadock was the executor of the estate of E. Y. Mundy, deceased, and the other defendants were his bondsmen. Such proceedings were had after the allowance of the claim as aforesaid, that the county court entered an order for the payment of such claim within a time therein mentioned. Such order was made on a petition setting forth, among other things, the allowance of the claim, and that there was sufficient property belonging to the estate, applicable to its payment, to pay it in full. The order recited as a fact established on the hearing that there was sufficient property in the hands of the executor to pay the claim. Service of the notice of the hearing on the petition was ordered to be made on Ross, Dwyer & Hanitch, attorneys for the executor, and they appeared on such hearing. The claim Avas not paid as required by the order, and such proceedings Avere thereafter duly had that the county court, by order, authorized the bringing of this action against the executor and his bondsmen to recover therefor.</p> <p>The complaint sets forth by appropriate allegations all of the aforesaid facts, and that after the claim was ordered to be paid plaintiff demanded payment thereof of the executor, which was refused. The defendants ansAvered, admitting all the facts alleged in the complaint, down to and inclusive of the order for the payment of the claim. There Avas no denial of the allegation of demand for payment pursuant to the order, or of the due making of. the order, or that the same had not been appealed from or set aside. There Avas a denial of the sufficiency of assets.</p> <p>On the trial there was evidence on the part of plaintiff that one of the attorneys for the claimants, after the entry of the order for payment of the claim, had some talk with the executor in respect to such payment. There was also evidence that the executor informed such attorneys by letter that there was no money with which to pay the claim; also evidence by the executor to the same effect. Proof was made of all proceedings in the*probate court as alleged, and there was no proof to the contrary, except the recital in the order authorizing suit, that the executor appeared in the proceedings to obtain such order, was disproved.</p> <p>At the close of the evidence defendants’ counsel moved the court for a nonsuit, which was gi’anted and the ruling duly excepted to. Judgment was rendered accordingly in defendants’ favor, and plaintiff appealed.</p> <p>They argued, among other things, that the judgment of the county court for payment of the claim cannot be attacked collaterally in this action. It is not a defense that the executor could not comply with the order or judgment. If he thought it was wrong and unjust he should have appealed under the provision of sec. 4031, R. S. 1878. Shepard v. Pebbles, 38 Wis. 373; Heard v. Lodge, 20 Pick. S3; Hewcomb v. Goss, 1 Met. 333; Stovall v. Hanks, 10 Wall. 583; Garber v. Comm. 7 Pa. St. 265; Willey v. Paulk, 6 Conn. 74; Fay v. Ames-, 44 Barb. 328; Watts v. Gayle, 20 Ala. 817; Love v. Gibson, 2 Fla. 598; Holden v. La-throp, 65 Mich. 652; Clark v. Fredenburg, 43 id. 263; Beall v. Hew Mexico, 16 Wall. 535, 541; Brush v. Button, 36 Conn. 292; Meyer v. Barih, 97 Wis. 352. The order or judgment of the probate court is conclusive upon all the parties, sureties as well as principal. When parties contract with reference to some suit or proceeding in court they are all bound by the judgment therein. They become quasi parties to the proceeding and are bound by it. Pratt v. Donovan, 10 Wis. 378; Booth v. Ableman, 20 id. 602; Eetehum v. Zeilsdorff, 26 id. 514; Smith v. Loclmood, 34 id. 72; Shepard v. Pebbles, 38 id. 378.</p>

<p> Master and servant: Negligence: Defective appliances: Assumption of risk. </p> <p>1. Where an experienced mechanic is injured by the slipping of a ladder on the floor where he was using it, such ladder being one of the ordinary tools in use in and about the premises and selected by such mechanic on the occasion of such injury, it was.error to instruct the jury that, as a matter of law, the master was negligent because of- some defect in the ladder, which was open and obvious to any person paying reasonable attention thereto.</p> <p>2. A servant is not ordinarily obliged to search for defects in instru-mentalities furnished for his use; nevertheless, in the use of ordinary tools, he takes the risk of all defects therein which are open and obvious to a person of ordinary care, by reasonable attention to them as they are used.</p> <p>[Syllabus by MARSHALL, J.J</p>

This is an action for personal injuries. The facts appearing on the trial were that the defendant, in November, 1895, owned and operated a large coal dock on Allouez bay, in the city of Superior, and that the plaintiff was a laborer about the dock. On the west side of the dock, and joining the bay, was a long trestlework about thirty-five feet high, and upon the top of this trestlework there was machinery for hoisting coal out of the vessels in the bay.

<p> Appeal: Printed briefs: Reversal: Evidence. </p> <p>1 In a case where the evidence extends over a hundred printed pages, a brief in which no specific assignment of errors is made and no specific error of fact is pointed out or relied on, except the general contention that the judgment should have been given in favor of the appellant, is criticised for failure to comply with Supreme Court Rule IX.</p> <p>'2. The fact that different minds might well arrive at opposite conclusions upon a consideration of the evidence is not a ground for disturbing findings of the trial court which are well sustained by competent evidence.</p>

<p>Appeal from an order of the circuit court for Nock county: JohN N. BeNNett, Circuit Judge.</p> <p>The allegations of the complaint are, in substance:</p> <p>(1) That plaintiff, at the time of the commencement of the ■action, was, and since December 17,1894, has been, the owner in fee simple and in the actual possession of certain real estate described, situated in Nock county, Wisconsin;</p> <p>(2) That June 22, 1896, the sheriff of said county, under an execution issued out of the circuit court thereof on a judgment rendered May 9, 1896, in favor of defendant and against M. H. Broderick, pursuant to a levy and due advertisement under such execution, sold said real estate for the sum of $500, to satisfy such execution;</p> <p>(3) That such levy and sale were made by direction of the defendants on the theory that such real estate was the property of said M. IT. Broderick;</p> <p>(4) That the sale was completed by the execution, filing, .and delivery of proper certificates of sale, as required by law;</p> <p>(5) That such certificates of sale constitute a cloud on . plaintiff’s title, and will, unless removed, compel him to redeem therefrom in order to prevent'the creation of a further cloud on such title by the issuing of a sheriff’s deed to de-~ fendant or her assigns, purporting to convey to her said .lands pursuant to such certificates.</p> <p>The prayer of the complaint is, in effect, that plaintiff’s title be quieted; that the cloud thereon, created by the certificate of sale on file, be removed; and that defendant be enjoined from selling or disposing of the certificate of sale, or.procuring,a sheriff’s deed thereon.</p> <p>The defendant interposed a general demurrer to the complaint, wThich was overruled, and defendant appealed.</p> <p>They argued, among other things, that if the invalidity of that which is alleged as a cloud appears on the face of the record' by which it is shown to exist, equity will not interfere. Gamble v. Loop, 14 Wis. 465; Meloyv. Dougherty, 16 id. 269; Trues-dell v. Rhodes, 26 id. 216; Moore v. Gord, 14 id. 216; Bier-v. Fond du Lao, 38 id. 470; Oornish v. Frees, 74 id. 490;-. Brown v. Cohn, 88 id. 627; 8. L. Sheldon Go. v. Mayers, 81 id. 623. The complaint was framed under the general equity powers of the court to remove cloud on title, and not under - the statute (sec. 3186, R. S. 1878). Having brought his action in that form he cannot now sustain his complaint under said section, even if the allegations show that he might bring an action under it. Walton v. L^erJcins, 28 Minn. 413; Knud-son v. Gurley, 30 id. 433; Stuart v. Lowry, 49 id. 91.</p>

<p>Municipal corporations: Snow and ice on sidewalk: Injury to traveler: Court and jury.</p> <p>Plaintiff, in passing over a portion of a sidewalk in the defendant village which inclined twelve or fourteen inches in six feet, felt and was injured. It appeared that four slats had been nailed across said incline about fourteen inches apart, but that they had' been covered up by snow which had accumulated on the walk; that sleet or mist during the night preceding, or early on the morning of, the accident, followed by a slight flurry of snow, had rendered the walk very slippery, but that it had not previously been in that condition; that ashes had been sprinkled on the walk before, but none had been sprinkled after, such slippery condition arose; that the accident happened about 9 o’clock in the morning; and that plaintiff had passed over the place in question a short time previous thereto, going in the opposite direction, and knew the slippery condition of the walk. Held, as matter of law, that no defect in the sidewalk was shown which would render the village liable for plaintiff’s injury.</p>

BbNNett, Circuit Judge. This is au appeal from the judgment of the circuit court for Rock county allowing the claim of Mary A. Zilley, the respondent, against the estate of her former husband, August Zilley, deceased. The parties were married September 26,1867, and divorced, by a decree of the circuit court for Rock county, December 29, 1884, in an action brought bjr the claimant against said August Zilley, on the ground of his cruel and inhuman treatment.

<p> Jurisdiction: Dodge county court: Trusts: Parties: Fraud: Collateral attack: Holding court in place other than county seat. </p> <p>1. By the judgment in a divorce action title to the real estate of the husband was vested in a guardian ad litem chai-ged with a trust duty or power in trust for the husband, to be executed as directed by the county court of Dodge oouuty. By sec. 2465, R. S. 1878, as amended by sec. 1, ch. 31, Laws of 1879, that court is given powers and jurisdiction in all civil actions and proceedings (with certain exceptions not necessary to he considered) concurrent with and equal to the jurisdiction of the circuit court. Held, that as a court of general equity jurisdiction the county court of Dodge county had jurisdiction, not limited by county lines, over the execution of the trust.</p> <p>S. Neither the children of the cestui que trust nor the divorced wife, who had been awarded a sum of money as permanent alimony and in lieu of dower, had any interest in the property which gave them a legal right to notice of the proceedings to have the trust executed.</p> <p>3. Fraud in the procurement of a judgment does hot affect the jurisdiction of the court rendering it, so as to render the judgment open to collateral attack.</p> <p>4. Under sec. 2471, R. S. 1878 (providing that the county judge may adjourn any term of the court to his office, or to some other place, when the court cannot be conveniently held at the court house on account of the sitting of the circuit court, “ or for any other cause ”), the county judge of Dodge county had ample discretionary power to hold court at his office in a city other than the county seat for the purpose of hearing an order to show cause in a proceeding to execute a trust, made returnable at a special term of court to be held at that place.</p>

<p>Attachment. (1) Traverse of affidavit: Assignee for benefit of creditors. (2) Order: Appeal: Exceptions. (8) Dissolution as to part of claim. (4) Adjusting cross demands.</p> <p>1. The traverse of an affidavit for attachment by both the.debtor and. ■ his assignee for the benefit of creditors, is held sufficient.</p> <p>2. The determination of the court on the issue raised by the traverse of an affidavit for attachment is an order, and may.be reviewed, on a direct appeal therefrom without any exception to it having been taken.</p> <p>3. An attachment issued on the ground that defendant had fraudulently contracted the indebtedness to plaintiff, may be sustained / as to a part of such indebtedness and dissolved as to the remainder.</p> <p>4. Cross demands between the parties cannot be established and adjusted on the trial of the issue raised by the traverse of an affidavit for attachment.</p>

<p> Voluntary assignment: Preferences: Fraud. </p> <p>Under sec. 1693a, S. & B. Ann. Stats, (providing that all assignments for the benefit of creditors which give preferences, except for wages of laborers, servants, and employees, earned within six ' • months prior thereto, shall be void), a manifest purpose on the part of an assignor, in giving preferences to his daughter and minor son, to bestow upon them a bounty in excess of the wages earned by them within six months prior to the assignment, or at all, renders the assignment void.</p>

<p> Appeal: Exceptions to findings. </p> <p>A finding of the trial oourt cannot be reviewed on appeal unless an exception thereto is contained in the bill of exceptions.</p>

<p> Fraudulent conveyances: Evidence: Homestead: Selection: Waiver. </p> <p>1. Plaintiff commenced a tort action against the owner of a farm, in which she recovered judgment. Before the action was brought to trial the defendant conveyed the farm without consideration to> his minor son, who lived with him on the farm, by a deed dated three years before it was executed and acknowledged. At the same time the son executéd and delivered to his father a conveyance of the premises, in form a warranty deed, hut in fact a mortgage to secure the payment of a note for $2,000. A finding that the conveyance to the son was fraudulent and void as to the 'plaintiff, is held to be sustained by the evidence.</p> <p>2. In an action to set aside as fraudulent a conveyance of land, part of which was a homestead, and to subject the land to the lien of plaintiff’s execution, the debtor by failing to make selection of his homestead or to claim any specific part of the land as such in his-answer, waived his statutory right of selection; and it thereupon became the duty of the court, in order to prevent further litigation, to set off a homestead for him.</p>

Dice, Circuit Judge. Action to enforce lien claims for labor performed in manufacturing logs into lumber and shingles and other products;, it was commenced against S. M. Holmes, the employer, and a writ of attachment was duly issued, under which, without any undertaking having been given as required in ordinary attachment proceedings for the collection of debts, a quantity of shingles which had been sold to the Wilbur Lumber Company and paid for by such company, without any…

Aepeal from a judgment of the circuit court for Dodge county: A. Scott Sloan, Circuit Judge. Action to recover on two policies of fire insurance. The property destroyed was grain in stacks. The fire was started by sparks from a threshing machine engine in operation on the premises.

Actio:»- commenced in supreme court. The defendant demurred to the complaint. This action was commenced in this court June 29, 1897.

<p>Appeal from a judgment of the circuit court for Chippewa county: A. J. YiNje, Circuit Judge.</p> <p>This was an appeal from a judgment for $10 and costs, given.' in an action against the defendant for an alleged trespass in cutting down and removing portions of certain fences December 9, 1896, upon the lands of the plaintiff, to ivit, lot 8, section 15, town 28, range 9 "W., and which the defendant claimed were in a public highway in the town of Lafayette, in Chippewa county, in a road district over which he was overseer.</p> <p>On behalf of the plaintiff evidence was given to the effect that on the 9th of December, 1896, the defendant was on the tract of land between the plaintiff’s place and one Nelson’s, who owned the forty east of the plaintiff’s lot, being the N. ~W. \ of the N. ~W. ¿ of section 14 of the same town, and that he cut down a wire fence that day between the plaintiff’s land and Nelson’s, which ran north and south-eighty rods, and that the town claimed there was a road there; that the fence he then, had there was in the same place as the one the defendant cut down. The wire was cut and moved away into plaintiff’s field. He had a fence south of his barnyard, and one north of it, and a fence running east and west between his house and barn. A map was put in evidence showing the location of the plaintiff’s house and barn, and of the fences cut down and removed, and of the garden.</p> <p>The plaintiff testified that the road had been traveled alonar where the fence was that had been cut down, some three years previous; that when the defendant came there he explained that the town wanted him to cut the fence down that was in the road. Tie testified that his barnyard was seven rods square, and one of the fences cut down was on one side of his barnyard; that his barnyard and garden had been from the first where they then were, and that he had had his barn and house there since 1888, but that there was no road or appearance of a road there then, where the line was; that when he commenced living on lot 8 the travel was directly over on Nelson’s land, east of plaintiff’s, but after the town board came and laid out the road it was along the north and south line, and had been for three years. The plaintiff gave evidence to the effect that he had a garden between his house and barn,’in which there was all kinds of stuff,— strawberry plants, rhubarb, etc.; that when they came there to lay the road on Nelson’s side of the fence, at that time, it was brush, no broken land; that his land was broken first; two or three years after that, Nelson changed his line; that the plaintiff did not open his line, but maintained his fence there, and his garden extended out from the house to the line.</p> <p>The defendant admitted that the fence'was cut on the line .a distance of about eighty rods, and that forty posts were taken down. The title to the land in question was admitted to be in the plaintiff. The evidence, as contained in the record, is extremely vague, uncertain, and fragmentary; and it is almost impossible to get any satisfactoi’y idea of the real situation and relative location of the different objects mentioned. On behalf of the defendant, record evidence was given showing that a highway had been laid out on the north and south line May 27, 1892. On behalf of the defendant, J. 8. Crandall testified, in substance, that he was chairman of the board of supervisors in 1892, and was present when the road was laid out on the line in dispute; that there was a fence there, as there is now, but not exactly where it now is; that there was nothing to interfere with laying the road there west of that line or on the line; that there was some garden there, some corn, and a strawberry bed; that there ■was space for a highway and garden after the land for the road -was taken; that the fences stood east of the line in May, 1892, and stood there about May 10,1897.</p> <p>The defendant gave in evidence an order of the supervisors laying out the highway in question, and which awarded $15 damages to the plaintiff. A notice, signed by the supervisors and directed to the plaintiff, dated September 26, 1893, requiring him to remove his fences from within the bounds of said highway within forty-five days after the service of said notice, was served on the plaintiff September 27,1893. Another like notice or order to the plaintiff, signed by the supervisors, dated October 25, 1896, was served on him on that day, reciting that a certain fence was in the ■«center of the said highway, describing the line thereof, and that the piece of land that lay under said fence, and between the same and the westerly line of said highway, was a part thereof; and the said plaintiff was thereby requested to remove said fence beyond the limits of said highway within thirty days of the service upon him of a copy of such order. It was also shown that December 4, 1896, the defendant received from the said supervisors a notice requiring him, as overseer of highways, etc., “ to remove all obstructions that encroach upon the said highway,” describing it; and the defendant testified that after he got this notice, and on the 9th of December, he went there and cut down the fence. It was shown that the fence cut down was a little east of the line along the center of the highway for about eighty rods. The defendant testified that he cut the fence on the east side of the plaintiff’s barn, right on the line, and on the north side one rod in; one piece might be two rods; that the fence was an old one. That it was taken up for the distance of eighty-five rods in length, and four rods at the north end, and one rod at the south end, was not disputed; and the defendant claimed he cut the parts down and laid the posts and wire in on plaintiff’s land.</p> <p>The court charged the jury that the^notices were defective, and that, no proper notice having been given, the defendant could not go in there and tear down the fence, and that the jury should return a verdict for the plaintiff for the amount of damages he had sustained. The defendant excepted to this ruling. The jury found for the plaintiff in the sum. of $10, and, amotion by the defendant for a new trial having been denied, the plaintiff had judgment on the verdict, from which the defendant appealed.</p>

<p> Master and servant: Negligence: Employment of incompetent servant: Injury to fellow-servant. </p> <p>The complaint stated that the defendant employed an incompetent servant to take charge of boilers and engines in its blast furnace, and that plaintiff was injured by a negligent act of such servant in the line of his duty. Held:</p> <p>(1) That the mere allegation that the servant performed a particular act negligently, and plaintiff was thereby injured, failed to show that the alleged negligence of the master in employing the incompetent servant was the cause of the plaintiff’s injury.</p> <p>(3) That the employment of an incompetent servant does not render the master liable to a fellow-servant for an injury to him caused by some negligent act of such incompetent servant, unless the injury is the result of such incompetence. If the injury be the result of a mere act of negligence of the incompetent servant,</p> <p>it comes within the rule that the master is not liable to an employee for an injury caused by the negligence of a co-employee in the same business.</p> <p>(3) That to' render mere negligence incompetence, there must be something more than mere failure of duty as to a particular act. There must be actual incompetency to do the work properly, either for want of physical or mental ability, or want of that mental balance and self-control that enables one reasonably to bring into use, with an ordinary degree of success, his intelligence and experience.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>(1) Appeal from county court: Correction of its records. (2-5) Wills: . Probate: Jurisdiction: Notice: Proof of publication: Mistake in order: Presumptions: Record.</p> <p>1. Under sec. 4031, R. S. 1878 (providing that “in all cases not otherwise provided for, any executor, administrator, trustee, or any person aggrieved by any order, judgment, decree, determination, or denial of the county court . . . may appeal therefrom to the circuit court,” etc.), the circuit court has jurisdiction to amend or correct the records of the .county court upon appeal from an order of that court denying a petition for their correction.</p> <p>2. Unless notice of the time and place of proving a will was given as required by sec. 3787, R. S. 1878, all subsequent proceedings based thereon are void as to such persons in interest as did not appear or assent thereto, or have not since supplied such want of appearance by acts clearly indicating an assent thereto or ratification thereof.</p> <p>3. Testimony of the attorney for the proponent of a will that he was present when the will was admitted to probate, and remembered getting money from his client which he paid to the printer -of a newspaper for printing notice of the proof of the will, and that an affidavit of the publication of such notice was made and filed by him with the county judge, but that he did not pretend to remember its contents; and testimony of the proponent that she gave such attorney money to pay the printer’s fees, and thought she remembered seeing the notice in the papers, but did not know what kind of a notice it was that she saw, are. held sufficient to sustain, a finding that a notice was published, but entirely insufficient to sustain a finding that a proper and legal notice was given.</p> <p>4. A decree, entered July 3, admitting a will to probate, recited substantially that notice had been given as required by an order of June 6. That order fixed the date of hearing as Saturday, July 3, and directed publication of notice “according to law.” Saturday was in fact July 4 and a legal holiday upon which the court could do no work. The form of notice prescribed by statute is: “Notice is hereby given that at the-term of the county court to ba held ... on the first Tuesday of-, A. D. 18 — , the following matter will be heard and considered,” etc., no day of the month being mentioned. Held, that the inference would arise that the notice as published fixed the day of hearing either on the first Saturday of July, or, as mentioned in the order, “on Saturday the 3d day of July.” In the first event the notice would be illegal, and in the second misleading and deceptive and therefore insufficient.</p> <p>6. Where the jurisdiction of a court is attacked directly, and there is no proof of the facts upon which the question of jurisdiction rests, no intendments in favor of jurisdiction can be indulged in except such as are supported by the record, if the record attempts to deal with that question.</p>

<p> Married women: Oontraets: Separate estate: Parties. </p> <p>1. A married woman who has no separate estate or property of any hind and is not engaged in any kind of business cannot make a binding contract to repay money loaned to her to enable her husband, or herself and husband, to go into business.</p> <p>2. Under sec. 2608, S. & B. Ann. Stats, (providing that “ where a married woman is a party, her husband must be joined with her. except that, when the action concerns her separate property or business, . . . she may sue or be sued alon'e ”), it was error, in a case not within the exception, to allow an action against husband and wife to be discontinued as against the husband only.</p>

S. GbaswoLD, Judge. This is an action to reform and foreclose two certain mortgages upon the same parcel of real estate. The mortgages, amounting to $2,000, were executed by the defendant luoina H. 'Williams to H. K. and B. G-. Edgerton, assignors of the plaintiff, and were in the usual form, purporting to mortgage the fee of the premises, and were signed simply Luoina H. Williams.

D. Hastings, Jr., Circuit Judge. To the point that the circuit court will take cognizance of who are justices of the peace in the county where the court is held, and of who are incumbents of offices… Held: and of who are incumbents of offices under general statutes, they cited Bradner, Ev. (1st ed.), 92; 1 Rice, Ev. 26, and cases cited; 12 Am. & Eng. Ency. of Law, 179, and cases cited.

D. Hastings, Je., Circuit Judge. The plaintiff commenced this action to foreclose a mortgage executed by the defendant MeKillop. Personal service •was had on all of the defendants. The defendant MeKillop suffered default, and the other defendants appeared but put in no answer. Due notice of application for judgment was given, and on December 21, 1896, judgment of foreclosure was entered.

D. Hastings, Je., Circuit Judge. He contended, inter alia, that it was not the duty of the defendants to pay taxes assessed upon the lands before they acquired an interest in them. There was nothing in the way of their taking tax deeds upon certificates of sales for taxes assessed prior to 1887. The first deed being invalid, they were at liberty to take other deeds.

Paeisi-i, Circuit Judge. This is an appeal from an order adjudging the appellant guilty of contempt, under sec. 3477 eb seq.r R. S. 1878, and requiring him to pay to the respondent a certain sum of money. The contempt charged and found consisted in the violation of a temporary injunetional order. The action in which the order which was disobeyed was made was an action brought to foreclose a contract for the sale of pine lands.

Parish, Circuit Judge. This was an action for the recovery of damages claimed by the plaintiff in consequence of the refusal of the defendant to accept and pay for a certain quantity of lumber on the plaintiff’s dock at Ashland, Wisconsin, alleged to have been purchased by the defendant of the plaintiff under the following proposition and acceptance, September 18, 1.894: “New York, Sept. 18th, 1894. .“Mess.

Paeish, Circuit Judge. July 18, 1896, plaintiff filed with the city clerk of the city of Ashland, for allowance by the common council of such city, a claim for moneys alleged to be due him from the city for services as a police officer. On the 8th day of February, 1897, the common council having failed to take final action, plaintiff appealed to the circuit court in the manner provided by the city charter.

Paeish, Circuit Judge. The Bank of Washburn, holding an accommodation note, of $1,500, executed by defendant, transferred the same to plaintiff, for value, before due, the latter having no knowledge that it was accommodation paper. The note was indorsed by the Bank of Washburn and A. C. Probert, its president. At maturity the note was renewed, the latter note bearing date August 12, 1895, and due in sixty days.

<p>(1) Appeal: Findings: Fraud. (3) Practice: Sale by sheriff of land in hands of receiver: Enforcement of lien: Judgment.</p> <p>1. Findings of the trial court that, pending plaintiffs’ actions against an insolvent debtor, the latter had conveyed lands to a corporation formed by him, with intent to hinder, delay, and defraud them, in the collection of their demands, are held to have been based upon sufficient evidence and will not, therefore, be disturbed on appeal.</p> <p>2. The cortrt which had appointed a receiver for a corporation rendered judgment for the plaintiffs in an action to subject lands in the hands of the receiver to the lien of plaintiffs’ executions against the grantor of the corporation. The judgment directed that the sheriff proceed upon said executions to sell the lands. Held, that this direction was within the power of the court and will not be •disturbed in the absence of anything to show that such method of 1 -enforcing the lien was prejudicial.</p>

<p>Appeal: Sufficiency of pleading: Remedy at laiv: Demurrer ore tenus: Equity: Taxation: Interest: Toion orders: Presumption as to validity: Highway taxes: Basis of computation.</p> <p>1, The objection that the complaint fails to state a cause of action. cannot be raised for the first time on appeal.</p> <p>2. The objection that the plaintiff has an adequate remedy at law cannot be raised by a demurrer ore.tenus to the complaint.</p> <p>3. Where, pending an action in equity to set aside alleged illegal taxes and restrain a levy upon personal property to collect the same, the defendant town made such levy and the plaintiff was obliged to pay the entire amount of the tax to prevent a salé, it would seem that the action should not be dismissed on the ground that the plaintiff has an adequate remedy at law, but the court should retain jurisdiction and grant such relief as the changed conditions demand.</p> <p>4. The levy by a town board of a tax to pay interest on outstanding orders is held to have been without authority, in the absence of anything to show that they had ever been presented, or that the holders were threatening suit thereon.</p> <p>.'5. In the absence of evidence to the contrary it will be presumed that outstanding orders and bills allowed by a town board of supervisors were for legal obligations, and that it would not be inequitable for the town to pay them.</p> <p>>6. At a special town meeting held July 17 it was voted to levy a tax for highway purposes for that year. The town had theretofore voted to collect the highway taxes in money. Held, that such tax was properly computed on the basis of the valuation of the preceding year.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: Joeut K. Parish, Circuit Judge.</p> <p>Action to recover damages for personal injuries. The complaint is to the effect that plaintiff approached defendant’s street-car track, located on Second street, in the city of-Ashland, Wisconsin, from the south,'traveling on a cross street known as “Ninth Avenue West;” that he was riding in a wagon, driving a team hitched thereto; that at the intersection of the streets there was a building on one side and a high bill board on the other, which so obstructed his view that he could not see an approaching car till he was near the track; that the track was about twenty-six feet from the street line; that as he was passing over the track, his horses walking at a rapid rate of speed, a car coming from the west at a great rate of speed, without the motorman giving any signal of its approach by sounding the car bell, struck the wagon and turned it over, throwing the plaintiff out against a curbstone and telephone pole, causing the injuries for which the damages are claimed.</p> <p>Looking at the evidence in the most favorable light for plaintiff, it is to the following effect: Plaintiff approached the track as alleged. The obstructions to his view existed as claimed. Plaintiff was standing np in his wagon. When the horses’ heads were just over the track, plaintiff saw a car approaching from the west. The motorman, at that instant, immediately signaled for a clear track by vigorously sounding his bell. Plaintiff immediately backed his team clear of the track, and then stopped with the horses under complete control. In backing, the team swung a little to the right so as to stand somewhat diagonally to the track. As the car reached a point nearly opposite where the horses stood, they became frightened by the sound of the bell and the noise and appearance of the car, causing plaintiff to lose control of them, whereupon they jumped forward, onto and partially across the track, so as to place the wagon in the pathway of the car. The car instantly struck the wagon near the front end, at which instant plaintiff fell over the side of the wagon box towards the car and let go the lines. Instead of falling to the ground, he caught hold of the wagon box and hung onto it, with his body outside. The horses ran away diagonally across the track and down the street, with plaintiff hanging to the box, and as the hind part of the wagon crossed the track the car collided with it at a point about thirty or forty feet from the first collision. After the horses ran about one hundred feet they passed near a telephone pole on the left hand side of the street so that plaintiff’s body collided with the pole, forcing him to lose his hold on the box and fall to the ground. The evidence is undisputed that plaintiff sustained some injuries, and that neither the wagon nor the car was injured or showed any evidence of the collision. There is some conflict in the evidence as to the speed of the car, but looking at that in the most favorable light for plaintiff, it is to the effect that if the car was going at the rate of about eight miles an hour, it would not have been practicable to have stopped it inside of about fifty feet, and that it actually did stop in going from thirty to forty feet after the car first struck the wagon.</p> <p>At the close of the evidence there was a motion on the part of the defendant for the direction of a verdict, which was denied, and the ruling duly excepted to. A verdict on the evidence was rendered in plaintiff’s favor. There was a motion to set the verdict aside as contrary to the evidence, and for a new trial, which was denied. Judgment was rendered in plaintiff’s favor on the verdict, from which- this appeal was taken.</p>

Appeals from orders of the circuit court for Sawyer count}'-; JohN K. Paeish, Circuit Judge. The defendants are proceeded against personally and as executors of the last will and testament of Hiram W. Webster, deceased. The substantial allegations of the complaint are as follows: (1) That Hiram W. Webster, in his lifetime, was the owner of certain lands, describing them.

Y. BakueeN, Circuit Judge. The facts are stated in the opinion. Thejr contended, inter ■alia, that both the employer and employee stand upon the same footing of responsibility in respect to perils and dan; gers that are patent, open, and obvious,— dangers which may readily be known and comprehended by any person of ordinary prudence and intelligence, in the exercise of ordinary care. This is especially true where both have equal means of knowledge.

Y. BaedeeN, Circuit Judge. This is an action to recover for labor in a sawmill, and to enforce a lien upon 60,000 feet of lumber which was manufactured in the mill. The defendant Stevens was the owner of the mill, and was the original defendant, and the defendant Rice was afterwards interpleaded, and filed an answer,, claiming to own the lumber which was attached. The facts in the case were simple and practically undisputed.

Ahpeals from judgments of the circuit court for Oneida county: Chas. V. BaRdeen, Circuit Judge. This is an appeal from the judgment of the circuit court for Oneida county, affirming the action and decision of the county board of supervisors of that county in wholly disallowing plaintiff’s account for services rendered by him as attorney in prosecuting an appeal to this court in the case of T. B. Scott Lumher Go. v. Oneida Go. 72 Wis. 158, and the amount claimed was $180.

<p> County officers: Salary: Recovery of money unlawfully paid as extra compensation: Action by taxpayer. </p> <p>A county treasurer made a clai.m against his county for about §500 for extra services which wei-e in fact within the line of his official duty, and the claim was allowed by the county board, and the money withdrawn by him from the county funds. After demand of, and refusal by, the county board, to compel a return of the money, this action was brought by plaintiff in his own behalf, and that of other taxpayers, to charge such treasurer as a trustee of such money, and to compel him to account for the same and pay it into the county treasury. Held, on a demurrer to the complaint setting up the facts:</p> <p>(1) A salaried county officer, for the performance of the duties of his official position and service which he performs voluntarily as such officer by request of the governing body of the corporation, is entitled to his salary bnly.</p> <p>(2) An officer who obtains public money from the treasury by forms of law, ostensibly for extra services, but to which he has no right in fact, does not thereby obtain title to such money, and on a failure of the proper officers to respond favorably to a demand by a taxpayer to compel a return of such money, such taxpayer may, acting in his own behalf and in behalf of other taxpayers, maintain an action to charge such officer as a trustee of such money, and to compel him to account for the same and pay it over to the rightful owner.</p> <p>[Syllabus by MARSHALL, J.]</p>

B. Wyman, Judge. They contended, inter alia, that the common purpose of the crowd was to do acts which were in violation of law and in disturbance of the public peace by exciting fear, alarm, and consternation among the people. Such common purpose is unmistakably implied by the conduct of the crowd, and the riot consisted in actually carrying out that purpose.

Y. BaRDEEN, Circuit Judge. This is an action to recover for personal injuries. The defendant owned and operated a sawmill at Merrill, Wisconsin, which had two sawing outfits upon the main floor, each of which in part consisted of what is called a saw carriage, propelled by steam feed, and running on tracks from north to south, lengthwise of the mill.

<p>Whits oe error to review judgments of the municipal •court for the eastern district of Waukesha county: D. S. .Tuular, Judge.</p>

BeNNett, Circuit Judge. The plaintiff in error, Otto Bohlmarm, was convicted of the crime of rape. The circumstances of the offense, according to the evidence of the prosecuting witness, were substantially as follows: Alvina Berg, a servant girl in the family of one Pugh, and a girl friend by the name of Dora Haubeck, about 12 o’clock at night, started to go home from a country dance.

<p> Adultery: Husband and wife: WitnessesCompetency. </p> <p>A wife is not a competent witness against her husband in a prosecution for adultery</p>

D. Hastings, Je., Circuit Judge. The complaint sets forth four causes of action at law: (1) Eor compensation for the destruction by a fire on the 20th day of May, 1893, of a lumber camp, several buildings, the camp equipage for a large number of men, some lumber, and a quantity of posts, poles, ties, slabs, and other personal property at Corliss, Wis., of the alleged value of $58,820.79, upon the ground that a fire was started at a point on defendant’s right of way about a…

Fish, Circuit Judge. . The case is stated in the opinion. They argued that ch. 236, Laws of 1897, limiting the time for giving notice of injury to fifteen days in cities and villages, is in violation of sec. 9, art. I, Const., in that it makes the time unreasonably short. Hughes v. Fond du Lac, 73 Wis. 382; Durkee v. Janesville, 28 id. 464; Hindis v. Milwaukee, 46 id. 559.