Volume 99 — Wisconsin Reports

Paeish, Circuit Judge. This is an action brought by the plaintiff, as a property owner and taxpayer of the county, in behalf of himself and others, to set aside 240 bonds, of $1,000 each, issued by the defendant county in aid of the Washburn, Bayfield The following facts are undisputed or found by the court: On August 9,1895, a proposition was made, in writing, to the county of Bayfield, as required by sec. 945, R. S. 1878, for a subscription to the capital stock of the…

<p>Appeal from a judgment of the circuit court for Racine-county: Johh Goodlahd, Judge.</p> <p>Ejectment. The complaint is in the ordinary form, alleging that plaintiff is the owner and entitled to the possession of the premises described, and that defendant unlawfully withholds possession. The answer is a general denial, and a further defense that plaintiff nor her ancestors or grantors had been possessed of the premises within twenty years preceding the commencement of the action. A judgment for plaintiff on the merits was affirmed in this court. 94 Wis. 642. Within the time limited by statute, defendant paid the costs and took a new trial.</p> <p>At the opening of the trial, plaintiff’s counsel made the following statement: “It is conceded for the purposes of this trial that Isaac Taylor, in his lifetime, owned all the lands between Second street and Root river that lay east of a point 140 feet east of the east line of Chatham street.” Counsel for defendant responded: “I will examine the abstract of title and the deeds of the lands referred to, and I will inform you [addressing Mr. Eish, plaintiff’s counsel] tomorrow morning whether I will agree to your requested stipulation or not.” No further reference to this stipulation-appears in the bill of exceptions. Plaintiff’s counsel then ■offered in evidence a deed from one Taylor and wife to William Waterman, said to describe a piece of land immediately west of the lands in controversy. The date or place •of record of this deed does not appear. Nest, the will of Isaac Taylor, in which Emeline Taylor is named as devisee, was offered. Then followed a deed from Emeline Taylor to James-IT. Kelly, G-eorge Murray, and George W. Slauson. This deeds purports to convey parts of block I of the original plat of Racine, and is assumed by plaintiff’s counsel to cover the land in suit, but there is no evidence in the bill of exceptions from which this fact can be definitely determined. Plaintiff’s counsel then called a witness for the purpose of showing “where Root river was at the time this deed was made.” This testimony was objected to and the objection sustained. Plaintiff’s counsel then offered to make further proof along that line, and to show title from Kelly and Murray, through mesne conveyances, to plaintiff, of the property claimed in her complaint. References were made to plat No. 1 and map No. 8, which were offered by plaintiff, but which are not preserved in the bill pf exceptions. Plaintiff thereupon rested her case, a nonsuit was granted, and judgment was entered for defendant, from which this appeal is taken.</p> <p>They contended that a deed is to be construed with reference to the actual state of the property at the time of its execution. Broom, Legal Maxims, 532, 682; 3 Washb. Real Prop. (4th ed.), 384, 408-422; Roberts v. Roberts, 55 N. Y. 275; 3 Kent, Comm. 434. The same deed was received in evidence upon the first trial and was construed as evidence of title, and that construction was approved by the supreme court by affirming the judgment. Lathrop v. Knapp, 37 Wis. 307, 312; Klatt v. N. C. Foster Lumber Co. 97 id. 641.</p>

<p>Appeal from a judgment of the circuit court for Eacine county: Eeank M. Eish, Circuit Judge.</p> <p>Plaintiff filed a bill for services as justice of the peace, for allowance by the defendant county, made out in accordance with the general statute on the subject. Such board, having previous to the performance of the services made a regulation in regard to officers’ fees in certain cases, pursuant to ch. 250, Laws of 1895, determined that plaintiff was only entitled to recover in accordance with such regulations., and accordingly allowed his bill in part and disallowed it in part. Prom such determination an appeal was duty taken by the plaintiff to the circuit court, and such proceedings were there duly had that it was determined that the county board, November 18, 1895, pretending to act under ch. 250, Laws of 1895, aforesaid, by resolution, established'the fees for services of justices of the peace in the cases covered by plaintiff’s bill, and that the allowance made by such board on such bill was strictly in accordance with such resolution; that no certified copy of such resolution was ever published, hence that it never became valid, even if the statute attempting to authorize it were valid; that such statute is void for uncertainty and is improper and unconstitutional; hence that the general statutes of the state, in accordance with which plaintiff’s bill was made out as presented to the county board, governed the subject. Judgment was therefore ordered in plaintiff’s favor for the amount of the claim disallowed by the county board. Judgment was entered accordingly, from which this appeal was taken.</p> <p>On the trial the record of a former case between the same parties, for the recovery of fees, was introduced in evidence, but there was no evidence to show that the validity of the resolution in question was there determined.</p> <p>argued, among other things, that, though a city charter requires ordinances to be published, yet publication is not essential to their taking effect. Sutherland, Statutory Construction, §§ 4é6, 447, 454; Gonboy v. loioa Oity, 2 Iowa, 90; Arthur v. Adam, 49 Miss. 404; Ohesnut v. Elliott, 61 id. 569; Fifield v. Marinette Go. 62 Wis. 532; State v. Click, 2 Ala. 26; St. Louis, L. & P. P. Go. v. Wilder, 17 Kan. 239; In re New York P. E Public School, 47 N. T. 556; People v. Goolc, 14 Earb. 259. The former judgment was not an estoppel. Something more is necessary to make it so than a similarity of facts or a common question of law. Davenport v. G., II. I. d¿ P. P. Go. 38 Iowa, 633-640; Aultman v. Mount, 62 id. 674.</p> <p>contended that the county 'board could not exercise the power delegated to it of fixing the compensation of justices, previously fixed by a general law, by a law or resolution which is not properly published. State ex rel. Oothren v. Lean, 9 Wis. 279; Olark v. Janesville, 10 id. 136; State ex rel. Dawes v. Pierce, 35 id. 93; Smith v. Sherry, 54 id. 114; Bwmham v. Webster, 5 Mass. 266; Deridia v. Ayers, 12 Pick. 334; Calking v. Baldwin, 4 Wend. 667; Burnham v. Acton, 35 How. Pr. 48; Rogers' Case, 2 Me. 303. The judgment in a former action between the same parties involving the same question of law is an estoppel as to conclusions both of law and fact which necessarily flow from such judgment, although not expressly found. Cromwell v. Sad Comity, 94 U. S. 351; Pra/y v. liegeman, 98 N. Y. 351; Woodgate v. Fleet, 44 id. 1.</p>

<p>Appeal from a judgment of the circuit court for Racine ■■county: Feank M. Fish, Circuit Judge.</p> <p>The cause was submitted and decided -with the preceding '-case.</p>

<p>Juror, competency of: Appeal, harmless error: Negligence: Special ver• diet: Instructions.</p> <p>1. A person is not disqualified, to sit as a juror in an action against a street railway company by the mere fact that he is in the employ of another street railway company, if it does not appear that his relations to such company will be likely to bias his judgment.</p> <p>% To overrule the challenge for cause of a juror is not prejudicial error, unless it appears that an objectionable juror was forced upon the party after such party had exhausted his peremptory challenges.</p> <p>3. The admission of leading questions is so largely in the discretion of the trial judge that the appellate court will not interfere except in a case of manifest abuse of discretion.</p> <p>4. Where, in an action for personal injuries, the evidence as to the nature and character of the plaintiff’s injuries was undisputed, and the judge had charged the jury that, in estimating damages, they should make allowance for the pain and suffering the plaintiff was reasonably certain to endure thereafter from the deformity of his leg and the depreciation of his capacity to earn a livelihood in the future, held, that it was not error to refuse to require the jury to make a special finding as to whether the plaintiff’s injury was permanent. That would have no bearing except upon the amount of his recovery.</p> <p>5. Although a street-car conductor may have been guilty of negligence in suddenly starting his car without warning a passenger who was about to alight, thereby proximately causing his injury,' yet, if such passenger failed to exercise ordinary care in making the attempt, he cannot recover therefor.</p> <p>6. In cases where special verdicts are submitted, the law does not contemplate, nor does proper practice require the court to give, instructions as to the general duty or liability of parties, but the instructions should be directed to the specific questions asked.</p> <p>7. An instruction that street railways are responsible for the negligence of their agents in the management of their cars “if any injury accrues therefrom and the passengers themselves are without fault,” if objectionable standing by itself, will be rendered harmless if full and correct instructions are also given as to the duty of passengers.</p> <p>8. A special verdict to the effect that the conductor of the car was guilty of negligence which was the proximate cause of the injury, and (upon evidence supporting it) that the plaintiff was guilty of negligence which proximately contributed to the injury sustained, which has been passed upon by the trial court, held not to be inconsistent and will not be disturbed on appeal.</p>

<p> Election of remedy. </p> <p>In an action against a corporation and its promoters to recover moneys which the plaintiff was induced to pay for stock by the-false representations of such promoters as to the price of certain-land that was conveyed by them to the corporation, judgment was rendered against the promoters but not against the corporation, but on appeal by the promoters the judgment was reversed on the ground that the plaintiff’s contract to buy stock could not be rescinded as to the promoters and affirmed as to the corporation, and on filing the remittitur the plaintiff recovered of the promoters the amount due from them on an accounting for the profit they had made by charging the corporation an excessive price for said land. He then appealed from the judgment in favor of the corporation. Held, that he had elected his remedy and affirmed his contract to buy stock.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. IT. Johnson, Circuit Judge.</p> <p>This, is an action to enforce a materialman’s or subcontractor’s lien upon a church building. The action was tried by the court, and the facts are not materially in dispute.</p> <p>It appeared that the defendants’ church building was remodeled in the year 1893 by the defendant Parsons as principal contractor, the work being finished about September 18, 1893. The plaintiff corporation furnished building materials to Parsons to be used in the building, and which in fact went into the building (except a few small items), amounting to $705.60, the last item being furnished September 18th, and no part of the amount has been paid. The defense was that the trustees of the church never made or authorized any contract with Parsons for the work, and that the sixty-day notice required by sec. 3315, R. S. 1878, was never served upon the trustees or their agent. Upon these issues it appeared that there were four trustees of the church, and that the defendant Leek was the pastor of the church; that no contract was made by the trustees; but that Mr. Leek and one Coe, acting for the church, made a written contract with Parsons for the remodeling of the church without specific authority so to do from the trustees. The work went on under the contract, numerotfs changes being made from time to time, all under the direction of leek, who acted as superintendent on behalf of the church. The work occupied from May until September, and the congregation worshiped in the basement during that time. The trustees attended church, and knew of the work, and made no objection. The work was practically done September 21, 1893, and the church was then dedicated. Difficulties then arose as to payment. The church found it hard to raise money. In .November it appears that, the trustees gave a mortgage on their parsonage for $500 to pay a part of the indebtedness for remodeling, but there was still a considerable amount left due. In October or November a meeting was arranged between the creditors and the trustees and Leek, and efforts were made to settle with all creditors. Plaintiff’s representative was present at the meeting, and its claim was recognized, and an agreement was-made in writing to settle at eighty cents on the dollar. This-agreement was signed by all the creditors, and by four men acting for the church, of whom at least two were trustees; but it was never carried out. It is uncertain whether this meeting was a valid meeting of the trustees or not. The plaintiff demanded the production of the records of the corporation on the trial, but they were not produced.</p> <p>On the 6th of November, 1893, the plaintiff caused to be served upon Mr. Leek a sufficient notice, claiming a subcontractor’s lien, but he did not hand it to the trustees until two or three months later. Afterwards this action was commenced against Leek and the trustees and Parsons.</p> <p>The court found that the materials were furnished to be used in rebuilding the church, but that no notice of the plaintiff’s claim for a lien was served on the trustees within the time required by law, and that said trustees had no agent; also, that Leek was not a trustee, and never became personally liable therefor,— and judgment was rendered dismissing the complaint, with costs, as to Leek and the trustees, and awarding a personal recovery in favor of the plaintiff against. Parsons for the amount of its claim, with costs.</p> <p>The plaintiff appealed from the entire judgment, except that part in its favor against Parsons.</p> <p>Among other things, they argued that the plaintiff could ■ not be a subcontractor, there being no contract between the trustees and the principal contractors. Phillips, Mechanic’s Liens, sec. 44; MeOmniss <v. Purrington, 43 Conn. 143,147.-The church corporation is not bound by the acts of its trustees unless they were convened at an authorized official meet- • ing, held pursuant to a call addressed to all. United Brethren Ohureh v. Yandusen, 37 Wis. 54; Doyle v. Gill, 59 id. 518,, 520; Leonard v. Lent, 43 id. 83, 88.</p>

<p> Appeal on questions of fact.. </p> <p>The decision of the trial court upon questions of fact cannot be disturbed on appeal unless contrary to the clear preponderance of the evidence.</p> <p>Appeal from an order of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p>

Appeals from a judgment of the superior court of Milwaukee county: R. 3ST. Austin, Judge. Held: the plaintiff corporation was duly organized, and Clayton and Griffin were elected directors and officers of the' company, Clayton being secretary and Griffin treasurer.

0. Ludwig, Judge. The facts of the case are stated in the opinion. They argued, among other things, that the original lease provided for no annual rental, but only for the payment of certain sums each month, and did not, therefore, create a tenancy from year to year, but merely one from month to month, and a holding over could not create a tenancy of a different kind.

<p> Appeal: Mortgage foreclosure: Judgment for deficiency: Guaranty. </p> <p>1, A defendant in a foreclosure action who neither preserves any exceptions nor perfects any bill of exceptions, but bases his appeal entirely on the record, cannot, on such appeal, take any advantage of the failure of the complaint to state facts entitling'the plaintiff to a reformation of a discharge of the mortgage. Where, in such a case, the judgment is sustained by the findings, it will be conclusively presumed that such findings were based on sufficient and competent evidence, and that, if necessary, the pleadings were properly amended.</p> <p>2, One who, on transferring notes and a mortgage, guarantees the payment of the notes, cannot claim to be released from liability by a release of the mortgage, which was given by mistake but has been reformed so that the mortgage is a valid lien on the property as against the owner.</p> <p>3. That part of a judgment for the foreclosure of a mortgage which orders a judgment for a deficiency is an integral part of the judgment and is appealable.</p>

<p> Accident insurance: Construction of policy: Exception of poisoning. </p> <p>Under a policy insuring a person against bodily injury sustained by external, violent, and accidental means, with a provision for payment to a beneficiary or beneficiaries in case of death from such, injuries within ninety days therefrom, independently of all other causes, and with a condition that the liability of the assurer shall not extend to injuries, fatal or otherwise, resulting wholly or in .part from poison or anything accidentally or otherwise taken, administered, absorbed, or inhaled, held, that death caused by blood poisoning from the effects of the absorption into the system of septic poison evolved by the propagation of germs in cotton inserted by a dentist in wounds caused by the removal of teeth from the moxrth of the deceased, to stop hemorrhage, is within the-condition and creates no liability under the policy.</p> <p>[Syllabus by MARSHALL, J.J</p>

N. Austin, Judge. This action was brought against Patrick J. G-leason and JEJ. JK. Rundle to recover damages for an alleged false imprisonment. The arrest is said to have been 'without cause and without process of law. ' The defendants answered, alleging that Gleason was a police officer of the city of Milwaukee; that plaintiff committed a breach of the peace, and that Bundle and one Wolfert informed Gleason of the fact, and thereupon he arrested plaintiff.

<p> Appeal: Irregularity of undertaking: Waiver. </p> <p>1. The consent of the respondent that an undertaking on appeal, which is found to be insufficient, may he signed by a new surety, and when so signed shall be deemed satisfactory, is a waiver of the irregularity and precludes the respondent from taking, advantage thereof.</p> <p>■ % An appeal from a judgment in an action of ejectment dismissing the complaint for failure of the plaintiff to pay the costs of a continuance, which were less than §100, cannot be sustained, under ch. 183, Laws of 1897, as one in which the title to lands is in question. It involves no consideration of the merits of the case, and the court may determine that question on a motion to dismiss.</p>

Appeals from orders of the superior court of Milwaukee county: Geo. E. Sutheeland, Judge. These are two actions in equity brought to permanently enjoin the defendant railway company from grading down the highway in front of the residences of the plaintiffs, and from laying an electric street railway thereon. The cases are identical in their facts, and but one statement will be necessary.

E. SutherlaNd, Judge. Action to foreclose a mortgage. The complaint was in tbe usual form. Held: in effect, that the complaint, so far as it asks for foreclosure of the mortgage, should be dismissed, but that the cause should be retained for the purpose of settling the issue as to the ownership of the securities, raised by the counterclaim and reply thereto; that the rights of defendant Manasse are subject to those of the…

Appeals from judgments of the superior court of Milwaukee county: J. 0. Ludwig, Judge. Action to foreclose a mortgage. The answer sets up a plea in abatement to the effect that the action was not brought in the name of the real party in interest; that plaintiff had no interest in the mortgage; and -that Otto D. Rjorkquist was the real party in interest. Substantially the same facts are set up by way of defense.

<p> Divorce: Review on appeal: Counterclaim. </p> <p>A judgment of divorce, granted to the plaintiff on the ground of desertion, will not be disturbed on appeal, where it appears that it was for the interest of both parties, although there was considerable evidence tending to show that the defendant was compelled to leave the plaintiff by reason of his cruel treatment, but the answer fails to allege such or any other fact as a counterclaim.</p>

E. Sutherland, Judge. The plaintiff is the widow and administratrix of one James Hennesey, deceased, who was killed March 19, 1895,, in the yards of the defendant in Milwaukee, and she brings this action to recover damages for his death. The ground of liability claimed is that the deceased, while performing his duties, caught his foot in an open ditch negligently main- ' tained in the yard, and was consequently killed.

OeRtioeabi to review an order of Hugh Ryah, Court Commissioner in Milwaukee county. One Peter Roszcynialla, while on .bail to appear at a term of the municipal court for Milwaukee county to answer to a charge of burglary, was duly sentenced by a justice of the peace to the house of correction for the term of six months for the offense of larceny, and was committed accordingly.

<p> Municipal corporations: Superior city charter: Assessments for street improvements: Notice: Constitutional law: Due process. </p> <p>1. Where a city charter requires assessments for street improvements to be made according to the benefits accruing to the several lots, a report of the board of public works of such city that they have assessed the lots benefited by such improvements according to benefits shows a compliance with the charter, although it may also show that the apportionment to lot owners was according to the number of front feet owned by them respectively, abutting on the street. An apportionment according to front feet is not necessarily erroneous. Hayes v. Douglas Co. 92 Wis. 439, distinguished.</p> <p>'2. That an assessment was ordered only on property fronting, abutting,1 and adjacent to a certain street for improvements thereon, does not, as a matter of law, unduly limit the district benefited, in the absence of proof that there was any outside of that limit which would be benefited.</p> <p>8. The charter of the city of Superior does not require the published notice of the determination of the amount of assessments for street improvements to be made against lands benefited to have any particular address. It will be sufficient if addressed to all whom it may concern.</p> <p>•4. Proceedings for levying sewer assessments in accordance with provisions in the city charter requiring the publication of notices showing a plan of sewerage; the order of the council for the construction of the sewer when the contract therefor has been let; the opportunity given to the lot owner to pay the assessment or have bonds issued; and the placing of the assessment on the tax list, are not subject to objection as being a taking of property without due process of law.</p> <p>'5. Assessments for the building of sidewalks are valid if made in pursuance of the city charter, although that does not provide for the giving of any notice of the proceedings to lot owners except the annual entry in the tax rolls.</p> <p>■6. In respect to lots to be assessed for street improvements, the term “adjacent” means “lying near, close to, or contiguous, but not actually touching,” while the term “adjoining” indicates that they are “so joined or united that no third body intervenes.”</p>

The facts in the case are stated in the opinion. They argued, inter alia, that it was error to admit as evidence of the circulation of the paper on the day when the libel was published the statement of its circulation on a different day. The extent of its circulation was important upon the question of actual damages, and should have been proved by competent evidence.

Bennett, Circuit Judge. This is an action of garnishment. Held: in substance, that the chattel mortgage was in effect a voluntary assignment, and void as to the plaintiff, and that it was void as to all other creditors by reason of the subsequent assignment of Schneider Bros., and that the assignee, Greenwood, stood liable to the plaintiff, in lieu of the garnishees, to the extent of all the…

Bennett, Circuit Judge. Action to enforce a subcontractor’s lien.

<p>Appeal from a judgment of the county court of "Waukesha county: 3VC. S. Geiswold, Judge.</p> <p>Action for a mandatory injunction compelling defendants to lower a culvert on their premises so as to allow the water to flow freely from adjoining land on the east, owned by plaintiff, onto and across such premises, and to restrain defendants permanently from thereafter obstructing such flow. The trial resulted in findings of fact covering the’ issues raised by the pleadings, in substance as follows:</p> <p>(1) Plaintiff and defendants are severally the owners of land as alleged in the complaint, plaintiff’s land being on the west side of the defendants’.</p> <p>(2) Hear the westerly .side of plaintiff’s land there is a marsh of about eight acres, onto which water drains from the surrounding country. Mear the northerly side of the marsh is a spring where water comes, naturally, to the surface, and from which, some years ago, a ditch was dug, connecting with another drainage ditch, through the center of the marsh, in which there has customarily been some flow of water from the spring.</p> <p>(3) At the easterly end of the marsh, in a state of nature, there was a ridge of dry land, forming a natural obstruction tO' the flow of water from the marsh onto defendants’ land, unless there was considerable surface water. Erom twenty to forty years ago the water from some natural springs northeast of plaintiff’s land, which flowed southeasterly in a natural channel called Soft Water Brook, was diverted so as to flow by an artificial channel southwesterly into a pond eighty ■ rods northeast of the marsh, thence northwesterly into a natural channel into the marsh, and then through the high land before spoken of, on the east end thereof, onto defendants’ land by way of a ditch cut through such high land more than thirty years ago for that purpose. Through such ditch, ever since its construction, in ordinary seasons, water flowed a considerable portion of the time, being the drainage from the marsh, the water from the spring thereon, and the water diverted as aforesaid.</p> <p>(4) For years defendants have maintained a private roadway on their land along near the boundary line between the lands of the parties and across the artificial watercourse aforesaid, the roadbed being raised somewhat, so that, in the absence of a passageway under it, it would form a dam and prevent the flow of water off from plaintiff’s land by way of the ditch. In the construction of such road a culvert was placed under the same so as to provide a free passage for the water coming off from plaintiff’s land as aforesaid, which, ■culvert has been maintained for many years.</p> <p>(5) About May, 1895, defendants raised the bed of the culvert ten inches, so as to obstruct the flow of water through the same, and have ever since refused to remove such obstruction, though often requested by plaintiff so to do.</p> <p>(6) Plaintiff has been damaged by the act of the defendants aforesaid in the sum of one dollar, and will be damaged continually unless defendants are compelled by the court to remove the obstruction and permanently refrain from interfering with any flow of water thereafter through such culvert.</p> <p>(7) The ditch above mentioned has been maintained, and ■ the passageway for water therein from plaintiff’s land onto defendants’ and through the culvert, under the roadway aforesaid, has been enjoyed, by plaintiff and those precedIng him in ownership of the land, open, continuous, notorious, adverse, and acquiesced in by defendants and those preceding them in ownership of their land, for more than twenty years, whereby plaintiff has acquired the prescriptive right to a continuance of such use and enjoyment.</p> <p>On the facts so found, the court concluded as a matter of law that plaintiff was entitled to the mandatory and permanent injunction prayed for, and'to recover of the defendants his damages and costs. Exceptions were filed so as to present the questions discussed in the opinion. Judgment was rendered for the plaintiff in accordance with the foregoing, and defendants appealed.</p> <p>argued that a per- ! missive right cannot merge into a prescriptive right. Petti-grew v. Evcmsville, 25 Wis. 227; Fryer v. Warne, 29 id. 511. An uninterrupted enjoyment of an artificial watercourse for twenty years will not give a permanent right to main- . tain it. Tiedeman, Real Property, 588, and cases cited.</p>

Fish, Circuit Judge. Action upon contract. The complaint was to the effect that on and prior to January 1,1894, the defendant .entered into a contract and agreement with the plaintiff, whereby,, in consideration of the plaintiff entering and continuing in the employ of the defendant as a carriage maker for the' period of one year from and after January 1, 1894, the defendant would pay the plaintiff for such work, labor, and services $1,500 on or before January 1, 1895; that,…

H. JoeqtsoN, Circuit Judge. Action brought by the plaintiff, the widow of John Rit-ger, deceased, and administratrix of his estate, against the defendants, to recover damages for injuries alleged to have been received by her husband, John Ritger, on the 6th of July, 1895, caused by the negligence of the defendants, and from the effects of which he died.

H. Johnson, Circuit Judge. Action against the defendants for maintaining an establishment and manufactory alleged to be a nuisance, in which dead animals and the carcasses and offal therefrom were collected and converted into marketable products, located on the banks of the Menomonee river, in the town of Wau-watosa, upon a lot of land described in the complaint, containing about eight acres, of which the plaintiff claimed that he had been at all times in possession for the…

Appeal-from a judgment of .the superior court of Milwaukee county; J. C. Ludwig, Judge.

Appealable order. An order by the court, refusing to vacate a previous order made by a court commissioner in a proceeding under sec. 4096, R. S. 1878, that the defendant produce certain books and papers, and regulating the examination of such hooks and papers, is neither an interlocutory nor a final order, nor one refusing, continuing, or modifying a provisional remedy, and it is not appealable under sec. 3069, R. S. 1878, as amended by ch. 380, Laws of 1897.

H. JohNSON, Circuit Judge. The defendant appeals from an order made in this action by the circuit court, denying her motion to set aside and vacate the attachment issued therein, and continuing said attachment proceedings, and giving the plaintiffs leave to amend their affidavit for attachment by setting forth that a cause of action sounding in tort existed in favor of the plaintiffs against the defendant at the time of the commencement of the action and issuing of the writ.

This is an action in equity by the receiver of an insolvent state banking corporation to have the title to a certain farm, now held by the defendants Rogers and Mann, adjudged to be held in trust for the plaintiff, as receiver, and to compel a conveyance of the same to the receiver; also, to compel an accounting for the rents and profits thereof, and to set aside a mortgage placed thereon by Rogers and Mann, owned by the defendant Annie R. Ball.

<p> Contract of sale: Construction of terms. </p> <p>A provision in a contract for the sale of goods to be delivered at different times, that “if, during the deliveries on this contract, the price should be below the price herein named, we agree to rebate such difference on deliveries so affected,” is to be construed as meaning by the words “the price,” when first used, “the market price.”</p>

H. JohNsoN, Circuit Judge. Action for damages for breach of contract. The complaint sets forth bjT appropriate allegations that plaintiff was-employed by defendants as a traveling salesman for the year 1894, his compensation to be nine and one-half per cent, for all goods sold by him of certain classes, and five per cent, for other goods, he to pay his own expenses; that before the year expired, defendants discharged the plaintiff without any just cause therefor.

Eish, Judge. Plaintiff was employed as quarantine guard by defendants health commissioner. Such employment commenced on June-17, 1894, and continued, with the exception of brief intervals, from month to month, until May 17,1895, without any express agreement as to wages. Ilis duties were to guard certain houses, in which the inmates were supposed to be infected with smallpox, and to enforce quarantine regulations.

H. JohNsoN, Circuit Judge. This is an appeal from an order overruling the demurrer interposed by the appellants to the complaint, which alleges, ill effect, that Simon Kruczinski cliecl intestate December 25, 1882; that at the time of his death he resided in Milwaukee, and was the owner in fee and possessed of the real estate' therein described; that said intestate left, him suf viving, his widow, Katharine, and eight children, as his only heirs at law; that four of them,…

<p>Kruezinski v. Neuendorf, ante, p. 264, followed.</p>

IT. Johnson, Circuit Judge. The facts of the case are stated in the opinion. They argued, inter alia, that the several acts authorizing the organization and •defining the powers of trust companies (ch. 263, Laws of 1891; ch. 160, Laws of 1895) are special acts granting ■special corporate privileges, in violation of subd. 7, sec. 31, .art. IV, Const., and are therefore void. Kirriball v. Rosen-■dctle, 42 Wis. 415; G laris v. Janesville, 10 id. 177, 181, 191; Wis. Keeley Inst.

H. JonNSON, Circuit Judge. The substance of the complaint is that the Plankinton Rank, a corporation that had existed for upward of six years prior to the 1st day of June, 1893, in the city of Milwaukee, Wisconsin, and there conducted a large banking business, on that day made an assignment to William Plankinton, for the benefit of its creditors; that there were about 800 of such creditors, representing claims aggregating over $1,400,000, $220 of which was due the plaintiff;…

W. Burnell, Circuit Judge. On April 30, 1894-, defendant and one Gustave Krause entered into a contract by which the latter agreed to build a school house for the defendant for the sum of $9,215. The-■contract contained, among other things, certain provisions to the effect that the school district should pay all bills for materials, upon the order of Krause, and, when so paid, such payment should be deemed a payment of so much of the consideration of the contract.

W. BueNell, Circuit Judge. The facts in the case are stated in the opinion. To the point that ejectment would lie for the projection of one person’s eaves over another’s land, they cited Cilliam v. Bird, 8 Ired. Law, 28Ó; Huggins v. Ketchum, 4 Dev. & B. Law, 415; Childs v. Nelson, 69 Wis. 125; Stedman v. Smith, 92 Eng. C. L. 1, and other cases noted by the court.

W. Burnell, Circuit Judge. This is an action upon a standard policy of insurance issued by the defendant to the plaintiff, and covering the plaintiff’s house and other buildings, and also his personal property; the buildings being insured for $1,850, and the personal property for $1,000. The entire property was destroyed by fire July 1, 1896, during the term of the policy. There is no question raised as to the sufficiency of the complaint.

W. BuRnell, Circuit Judge. Action to recover on four causes of action, one only being contested, which was on an account stated, for $887. The sole issue tried was whether the account was stated and settled between the parties as alleged. The verdict was for the plaintiff. There was a motion to set the verdict aside and for a new trial, which was denied, and the ruling duly-excepted to. The judgment was rendered in plaintiff’s favor and defendants appealed.

W. BurNell, Circuit Judge. Action to recover on five causes of action, onty one of which was contested, that being for $441.18 on an account stated, for goods Sold and delivered to the defendants. The answer admitted the delivery of the goods, but denied the sale of them as alleged, and denied the settlement and statement of the account. The answer further denied that there was anything due on such cause of action.

W. Bubnell, Circuit Judge. In July, 1894, one Christ Schmidt was killed by an explosion in defendant’s factory, under circumstances alleged to be such as to render it liable therefor. Afterwards his widow was appointed administratrix of his estate, and commenced this action to recover damages, under the statute, for her husband’s death. Pending the action, she married one G. W. Btaeffier, by whom she had one child now living. On December 28, 1896, the widow died.

<p>Appeal from a judgment of the circuit court for Winner bago county: Geo. W. BueNell, Circuit Judge.</p> <p>The case is stated in the opinion.</p>

Appeals from a judgment of the county court of Winnebago county: O. D. ClevelaNd, Judge. Action to recover assessments on several benefit Certificates on a mutual insurance policy issued by the Wisconsin Odd Fellows’ Mutual Life Insurance Company. The judgment was for the plaintiff on part of the assessments, and for defendant as to the balance.

<p>Appeal from a judgment of the circuit court for Eond du Lac county: N. S. GilsoN, Circuit Judge.</p>

S. Gilson, Circuit Judge. The facts of the case are stated in the opinion. Among other things, they argued that the grant of power to the city officials to keep the bridge in repair is for the public benefit, and its execution may be insisted on as a public duty. It is not discretionary. BuswelL, Personal In j. § 171; People ex rel. Burlce v. Bloomington, 63 Ill. 207; Lewis, Em.

S. G-ilsoN, Circuit Judge. This is an appeal from a judgment correcting and surcharging an executor’s final account. It appears by the evidence that Herman Hodgkin died at Eond du Lac, July 8, 1893, leaving a will devising his property, real and personal (after payment of his debts), to the appellant, Horace Hodghin,, who afterwards probated the will and accepted the trust.

Appeals from a judgment of the circuit court for Eond du Lac county: N. S. Gilsoe, Circuit Judge. Action to recover compensation for personal injuries alleged to have been caused by a defective street in the city of Fond dm Lao. The date of the injury was June 25,1895. The defective character of the street grew out of the manner in which the street-car track was originally constructed, and' was maintained, in the street in question.

E. EiohteR, Judge. In May, 1889, plaintiff filed a complaint for divorce against defendant in county court, Fond du Lac county, alleging sufficient grounds therefor, and also setting out his property interests and income, and demanded a share of his property as alimony. Pending the suit, she obtained an order for temporary alimony and suit money; and, upon his neglect to comply therewith, she sought to have the defendant punished for contempt.

<p>Appeal from orders of the circuit court for Eond du Lac county: N. S. GilsoN, Circuit Judge.</p> <p>The facts in the case are fully stated in the opinion.</p> <p>argued, among other things, that a receiver is an officer of the court and directly responsible to it, and neither the plaintiff nor the defendant, nor any other person, can deprive the court of its possession or control of the property involved. Neeves v. Boos, 86 Wis. 318; Mechanics1 Nat.Banlcv. Lcmdauer, 68 id. 49; Ahlhauser v. Doud, 74 id. 413. A receiver will not be discharged from his trust without a special order to be obtained upon the written consent of all the parties interested in the funds in his hands, or for cause shown upon due notice of the application. Circuit Court Rule XXVIII, sec. 2. He will not be discharged upon application of the party at whose instance he was appointed, when the interests of others are involved. High, Receivers, § 831; Fay v. Erie & K. It. Banlc, Harrington (Mich.), 194; Bainbridge v. Blair, 3 Reav. 421; Largan v. Bowen, 1 Sch. & Lef. 296. An appeal will lie from an order settling the receiver’s accounts and discharging him. High, Receivers, § 8195/ Honey v. McDonald, 109 U. S. 150; Gollins v. Gase, 25 Wis. 653.</p>

<p>Appeal from a judgment of the circuit court for Sheboy-gan county: N. S. Gilsost, Circuit Judge.</p> <p>This is an action of replevin to recover a‘stock of dry goods. The stock was originally owned by Brown & Frost as copartners, and they gave a chattel mortgage thereon to the plaintiff December 17,1895, to secure their notes, amounting to more than $23,000. Immediate possession was taken under the mortgage, and on the following day one Otten, who was a creditor of Brown & Frost to the amount of nearly $4,000, commenced his action, and sued out a writ of attachment, upon which the defendant, as sheriff, seized the said stock of goods; and the sheriff justifies such seizure on the ground that the chattel mortgage was given with intent to hinder, delay, and defraud the creditors of Brown & Frost. At the close of the evidence a verdict for the plaintiff was directed, and from judgment thereon the defendant appeals.</p> <p>to the point that a transfer of goods, though for a full and valuable consideration, made i or the purpose of defeating the claims of creditors and without the knowledge and assistance of the transferee, is fraudulent as to those creditors, cited Bobinson v. Holt, 75 Am. Dec. 233; Beidler v. Grane, 25 Am. St. Rep. 349; JBeels v. Flynn, 26 id. 351; Benninger v. Spats, 15 id. 692. Taking additional security is also a sign of fraud. Grassier v. Williams, 21 Kan. 109.</p>

E. Rioectee, Judge. The amount involved being under $100, the case comes to- this court on a certificate of the trial judge. The facts certified are that plaintiffs commenced an action against the defendant in justice’s court, to recover the amount due on a board bill incurred at plaintiffs’ hotel. Defendant appeared in the action and answerfed.

<p> Defective highway: Proximate cause. </p> <p>In an action against a town for an injury alleged to have been caused by a defect in the highway, it appeared that the plaintiff when driving a horse on á dark night struck the horse and drew up on the lines, and the horse starting quickly one of the lines broke, and as he pulled the other line the horse veered and the cart wheel hit a stone in the highway and he was thrown out and injured. Held, that the proximate cause of the injury was not the stone, but the breaking of the line and the pulling on the other line which caused the horse to veer out of her course. '</p>

<p> Foreign insurance companies: Revocation of licenses: Interest on fees: Equity: Statute of limitations: Estoppel. </p> <p>1. Under the provisions of sec. 1955, R. S. 1878, the commissioner of insurance may revoke the existing license of any foreign insurance company to transact business in this state, for its failure or refusal to pay the lawful license fee for the license of a previous year. Such a failure or refusal is a continued failure to comply with the statute. Cassoday, C. J., dissents.</p> <p>2. The state is not estopped, by the failure of its officers to require compliance with the law at the proper time, from afterward insisting upon it; nor, the law being plain, can the doctrine of practical construction be applied to such action.</p> <p>3. The license fee is not a tax, but a condition precedent to the plaintiff company’s enjoying the privilege of doing business in this state, and by accepting such license and doing business under it the company bound itself to comply with the haw.</p> <p>4. Unpaid license fees bear legal interest from the various dates when they ought to have been paid.</p> <p>•5. A corporation standing confessedly in arrears to the state in large sums cannot invoke the aid of equity to restrain the commissioner from an effort to enforce the law.</p> <p>6. The plaintiff being a foreign corporation all of the time and having its residence in another state, the statute of limitations does not apply in its favor; nor is it applicable in an action in equity to prevent the insurance commissioner revoking its license.</p>

<p> Railroads: Collision at highway crossing: Contributory negligence: Proximate cause: Excessive speed: Statutory liability. </p> <p>1. Ror a person approaching a railroad crossing on a diagonal street, in a closed vehicle containing noisy articles, the rear of such vehicle being towards a coining train which he knew was about due, not to stop and look out for such train after he came nearer than eighty feet to the track, though at the point where he did stop he could not see it when more than forty rods away, while at a distance of sixty feet from the track he might have seen it when 189 rods away, is contributory negligence on the part of such person, which will prevent a recovery for an injury by collision at such crossing. Piper v. C., M. & St. P. R. Co. 77 Wis. 247, distinguished.</p> <p>2. The liability of railroads, under ch. 467, Laws of 1891, for injuries to persons caused by trains running at excessive speed in cities, etc., is not absolute, but is liable to be defeated by the contributory negligence of the person injured.</p> <p>-8. To define “proximate cause ” in a charge to the jury as “a moving cause, or an immediate or direct cause to the remote cause,” is</p>

<p>Appeals from a judgment of the circuit court for Iowa county: G-so. ClembNtsoN, Circuit Judge.</p> <p>In his lifetime, one Henry Howard was the owner of eighty acres of land, occupied by himself and his wife, Catherine Howard, the defendant, as their home, forty acres of which was their homestead. Being desirous, of selling the same, Howard procured a deed to be drawn to one Conrad Stude, but his wife refused to sign the same. By the terms of the sale, Stude was to pay $400 cash, and execute a mortgage on the premises for $1,500. As a condition of the defendant executing the said deed, it was agreed between her and her husband that the mortgage and note to be executed by Stude should be made payable to her and her husband. Pursuant to this agreement, the deed was executed and delivered to Stude, and the note and mortgage were executed by him to Henry Howard and Catherine Howard as payees. On January 19, 1893, Howard borrowed $200, on a note signed by himself and wife, from one 'White; and, as collateral security for the same, they assigned said note and mortgage to him. On November 19, 1894, Howard died testate. On January 11, 1895, the defendant borrowed the sum of $212 from the First National Bank of Mineral Point, and paid the White note, took an assignment of said note and mortgage to herself, and made another assignment to the bank to secure the payment of the amount borrowed. Plaintiff was named as executor in Howard’s will, which was duly probated, and he accepted the trust. The plaintiff, as executor, demanded the note and mortgage from defendant; but she refused to deliver the same to him, claiming to be the sole owner thereof. The plaintiff then commenced this action, claiming in his complaint that Howard' was the sole owner of the Stude note and mortgage, that the defendant fraudulently and surreptitiously procured her name to be inserted as joint payee therein without the knowledge or consent of Howard, and that she claimed to be the sole owner thereof. The complaint also alleged a demand, and that Howard had no other estate, and died owing various persons, in the aggregate about $G00; that defendant had collected $90 interest on said note and mortgage, and threatened to collect the whole amount due thereon, and convert the same to her own use. The answer, after admitting and denyitig certain allegations of the complaint, sets up the facts substantially as before stated.</p> <p>The court found, in addition to the facts hereinbefore set forth, that Howard left no estate except his interest in the mortgage and note, and that he left debts unpaid to the amount of several hundred dollars, not yet definitely ascertained; that defendant’s name was not fraudulently or surreptitiously inserted in the mortgage and note; and that defendant had collected two years’ interest thereon, amounting to $180. As conclusions of law, the court found that, so far as the creditor’s .of Howard were concerned, the note and mortgage, and interest collected thereon, must be held to have belonged one half to each,— Mr. and Mrs. Howard,— and that the creditors were entitled to be paid out of the half belonging to Mr. Howard; that plaintiff, as executor, was entitled to the possession of the note and mortgage, and to collect the amount due thereon, and should pay the bank the amount due on the note of Mrs. Howard, mentioned, and divide the remainder, taking into consideration the interest collected by defendant, giving her one half, and out of the other half pay the debts of Howard, funeral expenses, and costs of administration, and any amount remaining was to be paid to defendant; that it was not the intention of Mr. ■and Mrs. Howard, that this mortgage fund should be kept together until the death of one of them, so that the other might take it; it constituted a fund upon which they relied for support; that the creditors trusted Howard on the .strength of this fund, and are entitled to his share, as though he had realized his part of the mortgage in his lifetime.</p> <p>Judgment was entered pursuant to these findings. Exceptions to the findings 'were duly taken, and defendant attempted to settle a bill of exceptions. An order extending the time to settle the bill was made by a court commissioner, and upon a motion to vacate the same, before the court, the court made an order in which he found that, prior to the entry of said judgment, said note and mortgage had been paid in full to said bank, who held the same subject to the direction of the court, and after the entry of judgment had paid the entire amount thereof, except the amount due the bank as specified therein, to the plaintiff; that thereupon plaintiff paid defendant one half of the remainder, $770.11, and retained the other part himself; that defendant ivas insolvent and irresponsible financially. The court thereupon set aside the order of the court commissioner, and struck out the bill of exceptions proposed by defendant. He further ordered that if, within thirty days, defendant should file a penal bond in the sum of $1,200, conditioned that in case both parties should appeal to the supreme court, and that court should decide that plaintiff was entitled to the whole of said fund, then defendant should pay plaintiff the amount she had received, upon these conditions defendant would be permitted to serve and settle her bill of exceptions. The bond was filed, and the bill thereafter settled.</p> <p>, ; The plaintiff appealed from that portion of the judgment which limited the plaintiff’s right to one half of the mortgage, and from so much as required the plaintiff to pay any portion of the avails of said mortgage to defendant prior to the payment of the debts of Howard, deceased. Defendant .appealed from the entire judgment.</p> <p>among other things, argued' that the defendant could not have the benefits of such provisions of a judgment as were in her favor, and appeal from those against her. Webster-Glover L. da M. Go. v. St. Grow Go. 71 Wis. 317; Simon v. Oneida Go. 82 id. 515, 529; Flanders v. Merrimae, 44 id. 621; Gogswell v. Galley, 22 id. 399; Oarll v. Oaldey, 97 N. T. 633; Murphy v. Spalding, 46 id. 556; Bennett v. Van Sychel, 18 id. 481. The defendant had no right in the land sold except that derived from her husband, and that must yield to the rights of his . creditors. Wait v. Bovee, 35 Mich. 425; Stewart, Husband & W. § 311; Allen v. Perry, 56 Wis. 178; Borst v. Spelman, 4 N. Y. 284; Scott v. Simes, 10 Bosw. 314, 320; Sanford v. Sanford, 45 N. Y. 723, 726; Christ’s Hospital v. Budgin, 2 Yern. 683; 1 Bandolf, Comm. Paper, § 325; Wilder v. Aid-rich, 2 R. I. 518; Allen v. Tate, 58 Miss. 585; Richardson v. Baggett, 4 Yt. 336; 1 Bright, Husband &■ W. 32; Putnam v. Bicknell, 18 Wis. 334; Miller v. Aram, 37 id. 142; Cummings v. Friedman, 65 id. 183. There is no analogy between tenancy by the entirety in real estate, and the rights of husband and wife in a security payable to both. 9 Am. & Eng. Ency. of Law, 850.</p>

<p> Negligence: Fellow-servants: Practice, question for special finding. </p> <p>1. Where the evidence showed that the window in defendant’s office, where employees were usually paid, and the catch for fastening it, were in perfect condition, so that the window could not fall if the catch was properly fastened, and that when such window had been raised by the defendant’s servant, that he might receive a check presented by the plaintiff, it fell upon and injured the plaintiff’s hand resting on the window ledge, a presumption of negligence arises from the very happening of such accident.</p> <p>2. Where, in such a case, the plaintiff, was not in the employ of the defendant, but was present for the purpose of obtaining the pay of an employee who had quit its service some time before, he cannot be deemed a co-employee with the servant who raised the window.</p> <p>3. It is not essential, under the provision of sec. 2858, E. S. 1878, authorizing the court to direct the jury to find upon any particular question of fact, that the question submitted should cover all the issues in the case.</p>

<p> Easement by prescription: Gate across right of way: Trespass. </p> <p>1. The owner of a right of way across the land of another, whether it was acquired by grant or by prescription, is entitled only to a reasonable and usual enjoyment thereof, in view of all the circumstances of the case and of the use then and theretofore made of the premises affected by it, and the owner of the soil is entitled to all the rights and benefits of ownership consistent with the easement.</p> <p>2. The owner of land which is subject to a right of way may maintain a gate across such way, if it is necessary to his use and enjoyment of his land and does not unreasonably interfere with the use of the way.</p> <p>8. Where a gate erected across a right of way by the owner of the land burdened with the easement does not unreasonably interfere with the use of the way, the removal of such gate by the owner of the easement is a trespass.</p>

B. 'Wvmajst, Circuit J udge. This is an action to recover damages for an alleged malicious prosecution.

<p> Appeal: Difficult question of law a's to costs involved. </p> <p>I. Under oh. 215, Laws of 1895, as amended, if a judgment for less than §100 without costs is rendered in plaintiff’s favor, and the only question in controversy is as to whether defendant is entitled to costs, he may appeal from the judgment to test that question if the trial judge certifies the facts and that the case involves some question of law, specifying it, of such doubt and difficulty as to require the decision of the supreme court.</p> <p>2. Under secs. 2918, 2920, S. & B. Ann. Stats., if plaintiff recovers less than §100 in an action commenced in the circuit court on contract, the defendant is entitled to costs.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p> Municipal corporations: Rights and powers outside of state. </p> <p>A city of this state has no power to accept a privilege, granted to it by the legislature of another state, of constructing a highway over ■ territory belonging to such other state, subject to liability for all damages caused by the improper construction or want of repair of such highway, and therefore it cannot be held liable for an injury caused by defects in a highway so constructed, occurring outside the state.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: O. R. Wyman, Circuit Judge.</p> <p>The facts appear in the opinion.</p> <p>They contended, among other things, that the defendant in an action for personal injuries was entitled to a physical examination of the plaintiff in order to ascertain the exact nature of the injuries and how long they had existed. Trial courts might order and, in their sound discretion, compel such examination. WMte v. Milwaukee City R. Co. 61 Wis. 536; Walsh v. Sayre, 52 How. Pr. 334. The right of defendants to demand and of courts to compel such examinations is recognized in many cases. Ala. Q. S. JR. Go. v. Hill, 90 Ala. II; Sohroeder v. G., R. I. da P. R. Go. 41 Iowa, 375; Devanbagh v. Devanbagh, 5 Paige, 554; Anonymous, 89 Ala. 291, 7 L. R. A. 425; McQuigan v. D., L. db W. R. Go. 14 L. R. A. 466, note; Trial of Sarah Baynton, 15 IIow. St. Tr. 634; Reg. v. Wycherley, 8 0. & P. 262, note; 2 Bishop, Marriage & Div. § 590 et seg., and cases cited; 1 Thompson, Trials, §§'851, 859; Hess v. L. S. d¡ M. 8. R. Go. 7 Pa.-Co. Ct. Rep. 565; Sibley v. Smith, 46 Ark. 275; Railway Go. v. Dobbins, 60 id. 481; Miami da M. T. P. Go. v. Baily, 37 Ohio St. 104; Richmond dá D. R. Go. v. Ohild-ress, 82 Ga. 721; Graves v. Battle Oreeh, 95 Mich. 266, 270; Langworthy v. Green, id. 93; Hatfield v. St. P. da D. R. Go. 33 Minn. 130; Atchison, T. dk S. F. R. Go. v. Thul, 29 Kan. 466, 10 Am. & Eng. R..Oas. 783; Sidehum v. IF., St. L. & P. R. Go. 93 Mo. 400. See, also, 2 Jones, Ev. §§ 398, 399. In some cases courts have refused the examination on the ground that the application therefor was not made at the proper time, or in a proper manner, or because of objections to the physicians who were proposed for the work; and not because they did not possess such power, and the right to exercise it in proper cases. St. Louis Bridge Co. v. Miller, 138 Ill. 465; Terre Haute & I. R. Co. v. Brunker, 128 Ind. 542; Mo. Pac. R. Co. v. Johnson, 72 Tex. 95; Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578.</p>

<p> Mechanic's lien: Homestead: Practice as to findings. </p> <p>Í. In an action to enforce the mechanic’s lien given by sec. 3314. JR. S. 1878, upon forty acres of land according j;o government subdivision, on account of buildings erected on the south part thereof, the defendant cannot claim that, because his dwelling and buildings constituting his homestead are situated on the north part of said forty-acre tract, the court shall carve out a forty acres different from the government subdivision, composed in part of the land on which the buildings are situated, to be subject to the lien.</p> <p>2. A party who desires a particular finding to be made by the court should call its attention thereto, and if he fails to do so and the findings actually made are correct and no different ones are inquired by law, he can take no advantage of the neglect of the court to make such finding.</p>

<p> Deed: Evidence of mental capacity to execute. </p> <p>In an action to set aside a deed executed by a person since deceased, on the ground that he was mentally incompetent when he executed it, the testimony of intelligent and disinterested witnesses, who bad-known' him for a long time, that he seemed intelligent and reasonable at that time, and that they noticed nothing wrong with him, held sufficient to sustain a finding that he was mentally competent at the time he executed the deed, notwithstanding there was evidence that the year before its execution, having become despondent from business reverses, he attempted suicide, and that subsequent,to his wife’s death, six years thereafter, he appeared deranged and was committed to an insane asylum, where he died.</p>

<p> Mechanic’s lien: IAen of subcontractor: Jury trial: Special verdict: Burden of proof. </p> <p>1. The statutory right to a jury trial in an action to enforce a mechanic’s or materialman’s lien, under sec. 8323, R. S. 1878, is- conditional upon a demand being made therefor at or before the time of the commencement of the trial, specifying the particular issue or issues of fact upon which a verdict is required; a failure to make such demand constitutes a waiver of the statutory right. A subsequent submission, of issues on the request of either party, against the objection of the other,'the same as if the demand, with proper specification of the issues, was made at the proper time, is reversible error.</p> <p>2. A subcontractor’s lien cannot, to the prejudice of the proprietor, be extended so as to cover for work not included in the principal contract as originally drawn or subsequently modified, or to damages for mistakes or negligence of the principal contractor, or breaches of contract on his part.</p> <p>8. The subcontractor’s authority to bind the proprietor’s property is referable always to the principal contract. To that extent, but no further, the proprietor is deemed, by force of the statute, to authorize the principal contractor to bind such proprietor’s property under the lien laws. That authority does not extend to any claim that is not lienable between the principal contractor and the proprietor.</p> <p>4. Where a special verdict is required, if any instructions are given as to where the burden of proof rests, the jury should be so informed that they will understand the subject as to each material fact in issue. A general instruction that the burden of proof is where the weight is, and that the general rule that the burden of proof is on the plaintiff does not apply, held to be error.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p>Appeal from a judgment of the circuit court for La Orosse -county: O. B. Wymah, Circuit Judge.</p>

M. Webb, Circuit Judge. This is an action to recover upon an accident insurance policy issued by the defendant. The policy was in the principal sum of $1,600, and was issued June 29, 1895, to one Thomas F. Foster, a car repairer by occupation, in favor of his mother, the plaintiff, Mary J. Foster, in case of his death resulting from bodily injuries sustained through external, violent, and accidental means.

<p> Appeal, ivhat reviewed: Railroads, when not liable for frightening horses. </p> <p>1. Where the trial court decides there is no evidence to warrant a verdict in plaintiff’s favor, and grants a nonsuit or directs a verdict accordingly, the decision will not he disturbed on appeal unless it clearly appears by the record to be wrong.</p> <p>2. Injuries resulting from the frightening of a horse by the appearance of moving railway cars, trains, or locomotives, or the usual noises or incidents of their ordinary operation, are damnum absque in-juria. '</p> <p>[Syllabus by Makshall, J.]</p>

<p> Sale of chattels: Warranty: Evidence: Conditions: Waiver. </p> <p>1. A machine sold under a warranty which provided that “if the purchaser does not make full settlement, in cash or approved notes, for the machine, on its delivery to him, he thereby waives all claims under this warianty,” was delivered by the seller on the premises of the buyer without any request for settlement by note, and about one month afterward, with knowledge of the facts, he received and retained the buyer’s note for the price. Held, that 'the seller thereby waived his right to rely upon the delay of settlement as a forfeiture of the special warranty.</p> <p>'2. A provision in a contract of sale of a machine expressly requiring the purchaser to give written notice of all defects to the seller with reasonable time to repair the same, is a condition precedent, compliance with which is essential to a recovery for a breach of the warranty.</p> <p>3. A breach of warranty, that a fifteen horse power engine sold under it was “ capable of doing as much and as well as other machines of like size and proportions,” is not established by proof merely that it did not or could not be made to develop and maintain fifteen horse powei-, without evidence that other engines of the size and proportions of the one in question were capable of developing • and maintaining effectively that much power.</p>

<p>Appeal from a judgment of the circuit court for Dane county: R. Gr. Siebeokbe, Circuit Judge.</p>

G-. Siebeokeb, Circuit Judge. This action was brought by Lawrence B. Murphy, as administrator of the estate of one James. Quinn, who died March 21, 1896, aged eighty-one years. The defendant wTas the widow of the deceased by a second marriage.

<p> Conveyance "by parents on condition of support: Rescission for failure to perform: Remedies: Waiver. </p> <p>1. The consideration for the conveyance of a farm and personal property by parents to their son was his agreement to support them during the remainder of their lives; to furnish them each year certain food supplies, the use of certain portions of the dwelling with free ingress and egress to any part thereof; to furnish them plenty of firewood and water ready for use at all times, and to care for them in all things, and furnish them with a doctor and medicine when needed, and with decent burial when dead. Held, that the agreement, fairly interpreted, required the son to devote his personal efforts to support and care for them, and that his failure to furnish his parents with a' sufficiency of wbod and water, and his getting married and removing several miles away, and failing to give them any personal care or attention, even when sick, but leaving them chiefly to care for themselves, were substantial breaches of his agreement, for which a court of equity would set aside the conveyances.</p> <p>2. Although, as a part of the transaction, the son gave to his parents a mortgage on a part of the farm as security for the performance of his agreement, and another mortgage to secure the payment of a sum of money, they were 'not limited to their remedy on such mortgages.</p> <p>8. That the parents commenced an action to foreclose one of such mortgages, which however they dismissed before commencing the action to set aside the conveyances, was no waiver of or bar to their right to maintain the latter action to obtain the relief sought therein.</p>

<p>Appeal from a judgment of the circuit court for Dane county: R. C. SiebeoKer, Circuit Judge.</p> <p>This is an action of replevin. It has been here twice before. 88 Wis. 438, and 94 Wis. 385. The plaintiff claimed the property by virtue of chattel mortgages and a bill of sale from one William J. Bleiler, his son. The defendant Moore was the sheriff of Creen county, and justified his seizure of the property by virtue of certain executions issued upon judgments against William J. Bleiler, and claimed that the transfers of said property to the plaintiff were in fraud of said judgment creditors. The action was tried before a jury, and the defendants, among other instructions, requested the court to charge the jury as follows: (1) “A transfer would be void if the only intent existing on the part of the debtor, and participated in by the person to whom the transfer was made, was merely to delay his creditors in the collection of their just demands, although the debtor may intend ultimately to pay all of his creditors in full. And this is so for the reason that the time for the performance of a contract, both in morals and in law, is an essential part of the contract itself, and the right of creditors to receive their rights when due is as absolute as their right to receive them at all.” (2) “ While parties are allowed to testify as to the intent with which they did any act, such testimony is not conclusive, and does not necessarily outweigh the evidence of facts and circumstances fending to contradict such negative testimony.” These instructions were refused, and the defendants excepted. A verdict was rendered for the plaintiff, and from the judgment thereon the defendants appeal.</p>

<p> Fraudulent representation as to quantity of land: Court and jury. </p> <p>In an action to recover a part of the price paid to defendant for a farm, on the ground that the plaintiff was induced to buy and pay for the same as containing 110 acres, at a certain price per acre,, by the false and fraudulent representations of the defendant that it contained that number of acres, held, that there was sufficient evidence of the fraud alleged to require the submission of the case to a jury; and that the acceptance of a deed, drawn in the precise terms of the contract, without knowledge of the facts, did not purge the transaction of fraud. Ohlert v. Alderson, 86 Wis. 483, distinguished.</p>

<p>Appeal from an order of tbe circuit court for Dane county: R. G. Siebeckee, Circuit Judge.</p> <p>Tbe facts of tbe case are stated in tbe opinion.</p>

<p> Insurance: Agreement by agent to heep policy renewed. </p> <p>An oral agreement by an insurance agent with a-person to whom he is issuing a policy that he will never suffer the insurance to lapse, but will give notice when it is about to lapse, and will renew the insurance either in the same or in some other company represented by him, is not binding upon the company which issued such policy, unless the agent was acting within his actual or apparent authority for such company and it was so understood by the insured, or the contract was afterward ratified. It is the contract of the agent in his personal capacity.</p>

This is an appeal by Edward Goebel from an order of the circuit court for Langlade county denying the writ of mem-damus prayed for in said relator’s petition.

Action to recover damages alleged to have been caused to> plaintiff by the unsafe condition of a public highway in the defendant town. Defendant’s counsel objected to any evidence under the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The objection was sustained, and, no request being made for leave to amend, judgment was entered dismissing the action, and for costs in defendant’s favor.

The plaintiff brings this action in his capacity as county judge of Fond du Lac county, based upon the following state of facts: One Wroe was a trustee of an estate being administered in that county and Jonathan Leiby was one of his sureties. Wroe defaulted, and the sureties became liable on their bond.

To the point that the state courts have-no jurisdiction over the Indian tribes or members thereof,, he cited Gherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 id. 516; IT. 8. v. Thomas, 151 U. S. 577; U. 8. v. Holliday, 3 Wall. 407; TJ. 8. v. Partello, 48 Fed.

This is an action of ejectment to recover possession of 680 acres of land, which were and are wild and unoccupied. 'The defendants, by answer, denied withholding possession of the lands, and disclaimed all title thereto, and alleged that, prior to the commencement of the action, they had .sold and conveyed all their right and title to said premises to one R. H. Markham.

Action in equity to set aside a conveyance of real estate alleged to have been made by defendant F. A. Miller to defendant Leon Miller, with intent to defraud the creditors of the former, and to subject such real estate to the payment of the debts owing by F. A. Miller to plaintiffs. The only issue raised by the answer was as to whether the conveyance was made to defraud creditors as alleged.

In August, 1892, the defendant issued its policy of insurance to one Charles Griem, in the sum of $1,000, insuring him against bodily injuries sustained through external, violent, and accidental means, with a provision that, if death should result within ninety days from such injuries, the company would pay that sum to the plaintiff, his wife.

<p>Criminal jurisdiction: Habeas corpus: Waiver.</p> <p>1. A writ of habeas corpus only raises the question of the jurisdiction of the court or officer to issue the process under which the prisoner is held in custody.</p> <p>2. A court which has obtained jurisdiction of the person of one arrested on a charge of burglary does not lose jurisdiction to afterward try him. for that offense by reason of the fact that he had in the meantime been arrested, tried, and convicted by another court for the crime of petit larceny, and was still suffering imprisonment for that offense when he was brought to trial for the burglary.</p> <p>3. By appearing in court with his counsel on the trial for burglary, pleading not guilty, and going to trial without disclosing that he was then serving a term of imprisonment for larceny, and when ■called upon after conviction giving no reason why sentence should not be pronounced upon him, the prisoner waives the objection.</p>

S. Gilson, Circuit Judge. The respondents moved in this court to set aside the stay of proceedings and dismiss the appeal. The appellant moved for leave to file a new undertaking.

Behnett, Circuit Judge. .The respondents moved in this court to vacate an order of the circuit court continuing a temporary injunction pending appeal.

ClemeNtsoN, Circuit Judge. This is an action to foreclose a land contract.

Tbe complaint was in form the same as in an action of ejectment; stating that plaintiff was the owner and entitled to tbe possession of the premises, and that the defendant unlawfully and wrongfully entered upon the premises, and withholds the possession thereof, etc. On November 23, 1893, William S. Warner, being the owner of the land, entered into an agreement in writing with one Levi Holmes to sell and convey the same to him for the agreed price of $210, payments to be…

J. YiNje, Circuit Judge. The plaintiff was a retail butcher at Superior, Wisconsin, between December 1, 1893, and April 15, 1895.

J. Yihje, Circuit Judge. The action, was to recover of the defendant Shell Lake Savings Bank, as principal, and the other defendants as sureties, $14,354.57 on a bond given by such bank to the plaintiff, with interest thereon from the 3d day of February, 1896.

<p>(1) Undertaking on appeal: Waiver of irregularity. (3-5) Foreclosure of mortgages: Fraud: Attorney and client: Appeal: Objection to jurisdiction: Gosts.</p> <p>1. The consent of the respondent that an undertaking on appeal, which on exception by him has been held insufficient, may be signed by a new surety, and when so signed be deemed satisfactory, is a waiver of any irregularity in that mode of procedure.</p> <p>3. A mortgagee’s attorney, having obtained a judgment of foreclosure, had his own brother appointed referee to make the sale, and caused the land to be bid off in the name of his own sister, the plaintiff in this action, and the mortgagee, as joint purchasers, by that means attempting to secure for himself a half interest in property worth §1,700 on account of his claim for services amounting to less than $200. The sister had no interest in the mortgage and paid no money-on the sale, but she claimed that the attorney had assigned his claim to her in payment for housekeeping, and it appeared that before the sale the attorney bad sold the same claim to a third party, who, after the foreclosure sale, purchased the property from the mortgagee. In an action by the sister for partition, held, that the transaction was fraudulent.</p> <p>3. An attorney, on foreclosing a mortgage, even if entitled to a lien for his services, is not thereby entitled to bid off the property at the sale in the name of another to preserve such lien; nor, even though the mortgagee may have consented that it be bid off in their joint names, which would give them interests in proportion to the amount invested by them respectively, is he authorized to substitute bis sister in place of himself, so that she could claim a half interest.</p> <p>4. A plaintiff who has brought a suit in equity cannot, on appeal by her, raise the objection that the defendants’ answer contests her title, and the action should have been at law.</p> <p>5. In the taxation of costs, witness’ fees supported by the usual affidavit of disbursements may properly be taxed, notwithstanding .an affidavit by a stranger to the effect that he is informed and believes that no fees were paid to a certain witness named in the bill of costs, and that he was not subpoenaed.</p>

The facts of the case, appear in the opinion. They contended, inter alia, that the action could be maintained against the debtor and all who conspired with him to defraud the plaintiffs. Plaee v. Minster, 65 N. T. 89, and cases cited; Worle Bros. <£ Oo. v. McCoy, 87 Iowa, 217; Tuclcer v. Finch, 66 Wis. 17; Page v. Parlcer, 43 N. H. 363.

This is an action to recover the value of a horse alleged to have been killed by the neglect of the defendant to place cattle guards at a highway crossing.

Action to recover compensation for personal injuries alleged to have been caused by negligence of defendant.

J. YiNje, Circuit Judge. On July 21, 1892, the defendant Maud McKenzie was indebted to the Security Bank of Duluth in the sum of $i,894.85, and on that day she executed and delivered to one Paine, manager of the bank, a deed of the S. E. ¿ of the S. W. £, section 12, township 48, range 15, as security for said sum, and for any indebtedness she might incur thereafter. This deed was recorded December 6, 1895. Paine deeded to the bank December 13,1895.

<p>Appeal from a judgment and order of the circuit court for Douglas county: A. J. Yihje, Circuit Judge.</p> <p>The facts of the case are stated in the opinion.</p>

W. Helms, Judge. This is an action of garnishment in aid of execution, commenced November 9,1895. Held: formerly belonging to Erickson & Collins, and was entitled to hold the same until payment of the balance due upon his note of $1,200, and that the plaintiff’s complaint should be dismissed, with costs. Erom a judgment in accordance with these findings, the plaintiff appeals.

J. YiNjb, Circuit Judge. Action for the conversion of certain personal property described in the complaint of the alleged value of $400, being a part of a logging and lumber camp outfit, alleged to have been taken by the defendant by his duly-authorized agent and deputy November 12, 1895, and. converted to his own 'use.

J. YiNje, Circuit Judge. Action to recover the amount due on a $1,500 promissory note dated June 25, 1892, due July 1,1895, made by defendants, payable to Anders Pederson or order, and alleged to have been by him, for value, before maturity, duly indorsed and transferred to plaintiff’s intestate, Annie Huguier.

The complaint alleges that defendant was judge of the municipal court of Douglas county, which court is of limited jurisdiction, with no power to determine a criminal action the punishment for which may be imprisonment in the state prison; that on July 21, 1897, the defendant issued a warrant for arrest of plaintiff to answer the charge of abandoning his wife, under sec. 4587c, S. & B. Ann.

Bartliell sued tbe defendants upon promissory notes. The defendants were nonresidents and no service was obtained upon them, but they owned stock in two Wisconsin corporations, and a writ of attachment was issued, and the officer executing tbe writ attempted to attach such shares of stock under secs. 2738, 2989, R. S. 1878, by leaving a copy of the writ witb one Charles E. Bartliell, whom be certified to be the secretary and treasurer of both corporations.

An action in equity involving the question of whether a real-estate mortgage owned by plaintiff is a lien on property described therein, paramount to the claim of defendant Duluth Trust Company under a tax deed acquired by such company while acting as agent for the plaintiff in respect to> caring for his mortgage securities, including the one in question.

The complaint charges that the defendant spoke of and concerning the plaintiff certain defamatory words set out in the opinion. The answer admits that he spoke the words, but alleges that they were directed to the plaintiff, and were spoken without malice.

<p> Execution: Exemption of abstract boohs. </p> <p>It is a condition precedent to the exemption from execution of abstract books, maps, etc., under subd. 13, sec. 2982, R. S. 1878, that they be “ kept or used ” by the debtor for the purpose of making abstracts of title to land at the time of the levy. The exemption is personal to the debtor, and is abandoned and lost if, before the seizure, he absconds from the state, with intent to avoid service of process and without intent to return.</p>