McHugh vs. Town of Minocqua. part of, or due to, the generally defective condition of the walk. If it was not, the question should have been submitted to the jury whether the town officers had notice, either actual or constructive, of its existence. If, however, the specific defect causing the injury was so included within the generally defective and rotten condition of the walk that it could be said that the undisputed evidence established notice thereof to the town officers, we are of opinion that the question of the plaintiff's contributory negligence should have been submitted to the jury. He is shown to have been a marshal or policeman until within a few days before the accident, and for six months prior thereto. His duties during all of that period had required frequent travel over this walk. He had noticed holes therein, and he was entirely familiar therewith. The general condition shown to exist was such as could not have escaped the notice of one so familiar with it, and, if that general condition was such as to justify the expectation of the specific defect in question, he was chargeable, as well as the town, with the duty of anticipating its possible existence; and ordinary care on his part would require him to exercise precaution against being injured thereby. Grimm v. Washburn, 100 Wis. 229. His own testimony shows conduct at least justifying two opinions as to whether it was consistent with ordinary care. He testifies that, if his mind had been. on the subject, he could have seen such a hole by looking out for it, but that he never gave it a thought, though nothing occurred to divert his attention. It appears to us, therefore, that upon the only theory upon which it could be said, as matter of law, that the town had notice of the defect, the plaintiff's conduct was such that the question of his contributory negligence should have been submitted to the jury. By the Court.- Judgment reversed, and cause remanded for a new trial. BARDEEN, J., took no part. Stadler vs. Smith and another. STADLER, Appellant, vs. SMITH and another, Respondents. February 2-February 21, 1899. Garnishment: Money deposited on wager: Evidence. In garnishment proceedings, evidence that as to money deposited by the defendant with the garnishee the latter was stakeholder on a wager, and that the defendant had no beneficial interest therein but had acted as agent for another in making the deposit, was admissible as against the objection that the garnishee could not prove an illegal transaction as a foundation for a defense. APPEAL from a judgment of the circuit court for Marathon County: CHAS. V. BARDEEN, Circuit Judge. Affirmed. This action involves less than $100, and comes here upon certificate of the circuit judge. The facts certified are in substance as follows: Stadler had a valid judgment against Smith for $72.50, and issued execution thereon, and commenced garnishee proceedings under sec. 2753, R. S. 1878. Both Smith and the garnishee defendant, Grout, answered in the garnishee action, alleging that on the 23d of October, 1896, the defendant Smith and one Sennott each deposited $100 with Grout, as stakeholder, on a bet that McKinley would get 100,000 more votes than Bryan in Illinois, Smith having the affirmative side of the bet; but that Smith did not own the money bet, but made the bet simply as agent for one Milroy, and that Sennott acted simply as agent for another person. The garnishee further answered, alleging that Sennott, November 5, 1896, gave written notice to the bank of which Grout was cashier, releasing all claim which he had to the money deposited, and directing payment thereof to Smith; that McKinley did in fact receive 100,000 more votes than Bryan in Illinois; and that, before the garnishment action was commenced, Sennott notified the garnishee that he withdrew the release and declared the wager off, and demanded that he, the garnishee, return to him the $100 which he had deposited; and, further, that Milroy Stadler vs. Smith and another. 1 claims the $100 deposited by Smith, and also the $100 deposited by Sennott, as winner of the wager. The garnishee submits the question of his liability to the court upon these facts. The plaintiff's evidence showed that on October 23, 1896, Smith and Sennott came to the garnishee, and each left with him $100 in currency, which he placed in his own personal safety-deposit vault with a memorandum which he made at the time, and that he claims no interest in the money himself; that on November 6, 1896, there was delivered to him a written direction from Sennott, directed to the First National Bank, directing the bank to pay all of the money to Smith; that the reason that he kept the identical funds in his own deposit box, instead of depositing them to his own credit in the bank, was because Smith and Sennott told him that it was a bet, and that he was to hold it until the bet was decided. Upon cross-examination, the garnishee was allowed to testify, against objection and exception, to all the facts alleged in his answer, except as to the ownership of the money and Milroy's claim thereto. The garnishee and the defendant were allowed, as witnesses on their own behalf, and against the plaintiff's objection, to prove all the facts set up in the answer, showing that the money deposited was deposited upon the bet, and that the money put up by Smith in fact belonged to Milroy, and that put up by Sennott was deposited as agent for another. The trial court found that the money deposited by Sennott was not his money, and that the money deposited by Smith was the money of Milroy, and that Smith had no interest therein or in the result of the wager, and gave judgment for the garnishee. The circuit judge certifies the following questions: "First, was the testimony showing that Smith and Sennott acted as agents for others, and had no beneficial interest in the money deposited by them in the hands of the garnishee, competent and proper to be considered by the court, under the circum Stadler vs. Smith and another. stances stated? Second, was the testimony showing that the money deposited with the garnishee was deposited with him as stakeholder of said wager competent to be considered by the court, under the circumstances stated? Third, was the attempt of Sennott to withdraw the notice to the garnishee, and to declare the bet off, coupled with a demand for the money, sufficient in law to entitle him to a return of the money?" For the appellants there were briefs by Mylrea, Marchetti & Bird, and oral argument by C. B. Bird. For the respondents there was a brief by Ryan, Hurley & Jones, and oral argument by T. C. Ryan. WINSLOW, J. If the garnishee was liable at all, it was because he had some of Smith's money in his hands or was indebted to Smith. R. S. 1878, sec. 2768. When the plaintiff had shown that there was money in the garnishee's hands which Smith had placed there, and which the garnishee did not himself claim to own, he rested his case, and strenuously objected to any proof tending to show that the money, though deposited by Smith, in fact belonged to Milroy, because he says the garnishee cannot prove an illegal transaction as a foundation for a defense. The objection was properly overruled. The plaintiff stood in no better position than Smith. If Smith could not recover against Grout, then the plaintiff cannot recover. Smith could not recover of Grout the money which was bet by Sennott, because the statute prohibits such a recovery; he could not recover the money deposited by himself, because it belonged to Milroy, and this fact may always be shown. Harnden v. Melby, 90 Wis. 5. The plaintiff's objection to the evidence is based on a misconception. Neither Smith nor Grout is trying to make title to the money by means of an illegal transaction; but the nature of the transaction is shown, not to enforce it or use it to found title upon, but, Relyea vs. Tomahawk Paper & Pulp Co. in effect, to set it aside and show to whom the money by law belongs. No rule of evidence prohibits this. The first two questions submitted are answered in the affirmative; and, as these answers dispose of the case, the third question is left unanswered. By the Court. It is so ordered, and the judgment is affirmed. BARDEEN, J., took no part. RELYEA, Appellant, vs. TOMAHAWK PAPER & PULP COMPANY, Respondent. February 2-February 21, 1899. Constitutional law: Vested rights: Statutory rights: Conditions precedent: Limitation of actions: Reasonableness of time: Injuries through negligence. 1. A right by statute to compensation for injuries can be granted upon condition, or the condition changed as to existing situations, or the right taken away entirely, in the discretion of the legisla ture. Such rights are not the subject of constitutional protection, but depend solely upon the legislative will. 2. A statute adding some new condition to the statutory right to compensation for an injury, is not a statute of limitations affecting a mere remedy, like a statute of limitations strictly so called, but a law acting upon a right, solely under legislative control. 3. A statutory condition in the nature of a limitation upon the enforcement of a common-law right, such as the right of recovery for injuries to an employee attributable to actionable negligence of the master, is a statute of limitations and does not apply to rights existing at the time of its passage, as to which a reasonable time is not left after such passage to comply with such condition. 4. A statute of limitations in existence at the time of the commencement of an action applies to it in the absence of anything in the act, or any other law, to the contrary. |