9. Under sec. 3331, S. & B. Ann. Stats. (providing that for work done
upon logs, etc., between November 1 and May 1 following, the
claim for a lien shall be filed on or before June 1 following, and
that for work done after May 1 and before November 1, following,
or for continuous work from November 1, or a day prior thereto,
to and beyond May 1 following, the claim for a lien shall be filed
within thirty days after the last day of doing such work) in order
to sustain a lien for work done prior to May 1 in any year where
the claim was not filed till after June 1 following, it is essential to
show that the work commenced on November 1 preceding, or a
day prior thereto, and continued without material interruption to
within thirty days of the time of such filing.
Ibid.
Maritime: Jurisdiction of state and federal courts.
10. The owner of a vessel, as a common carrier, has at common law a
particular and specific lien for his freight upon goods carried,
which may be enforced in a state court. Warehouse & Builders
Supply Co. v. Galvin,
11. An action of replevin, brought by the owner and consignee of goods
shipped by water to recover possession thereof from the owner of
the vessel and those claiming under him, who claimed a lien
thereon growing out of the contract of carriage, is a proceeding
to enforce a common-law remedy, and not a proceeding in admi-
ralty. The state courts were not therefore deprived of jurisdic
tion over the action by sec. 2, art. III, Const. of U. S., or by subd. 8,
sec. 563, R. S. of U. S., vesting exclusive admiralty and maritime
jurisdiction in the federal courts. but expressly saving to suitors
the right of a common-law remedy where the common law is com-
petent to give it.
Ibid.
12. A contract to carry 5,000 bushels of salt between certain points at
ten cents per barrel is an entire contract, and if only a part of that
amount is actually delivered for carriage, the carrier is entitled to
a lien thereon, at the end of the transit, for the entire contract
price.
Ibid.
13. Where a shipper fails to deliver to a vessel the full amount of goods
which he has contracted to furnish, the lien of the vessel upon the
goods delivered is enforceable in admiralty, whether the action be
regarded as one to recover freight or for damages for the nonper-
formance of a contract.
Ibid.
14. Where a person has a lien upon goods which would be enforced by
the federal courts as courts of admiralty, the owner of the goods
cannot recover them in an action of replevin brought in the state
courts.
Ibid.
LIMITATION OF ACTIONS. See COURTS, 2. PARTNERSHIP, 1. TAX TITLES,
1-3.
LOGS AND LUMBER. See CONTRACTS, 7. LIENS, 8, 9.
MALICIOUS ABUSE OF PROCESS. See PROCESS.
1. In an action for a malicious prosecution claimed to have been in-
stituted for the purpose of collecting a debt, a letter written to the
plaintiff a few days before the issuance of a criminal warrant, by
the cashier of a bank in behalf and by authority of defendants, re-
questing her to pay the account in question at once and save the
trouble of taking other steps to collect it," was admissible in evi-
dence. Strehlow v. Pettit,
2. In such action the testimony of plaintiff's brother-in-law that an
officer having a warrant for her arrest had requested him to in-
form her of that fact and that she must appear before a justice of
the peace at a certain time, and that he had so informed her, was
admissible, in connection with other evidence (showing, among
other things, that the warrant had been issued, and that she had
so appeared), as tending to prove an arrest; and such evidence is
held sufficient to sustain a finding that the prosecution against
the plaintiff was actually commenced and that in pursuance thereof
she submitted herself to the jurisdiction of the justice. Ibid.
3. Evidence in such case showing, among other things, that when
plaintiff appeared before the justice the case was postponed to a
certain time; that at that time the plaintiff again appeared, but
no one appeared against her, and the justice said there was noth-
ing on his docket; that the warrant was never returned; and that
nothing further was ever done in the matter is held sufficient to
sustain a finding that the prosecution was terminated before the
action therefor was commenced.
Ibid.
4. It is no defense to an action for malicious prosecution that the com-
plaint made by the prosecutor failed to state any offense and that
the warrant issued thereon was void.
Ibid.
5. The mere fact that a criminal prosecution was instituted for the
purpose of collecting a debt will not justify a finding that there
was a want of probable cause. Lueck v. Heisler, 87 Wis. 644, lim-
ited and explained.
Ibid.
Although the granting or refusing of a writ of mandamus is some-
what discretionary, when it appears that the application is made
to enforce a clear legal right; that the duty to be performed is
plain and positive; that substantial damage will follow its non-
performance; and that there is no other adequate remedy, no laches
chargeable to the applicant, and no special reason which renders
a resort to the remedy inequitable, it is an abuse of discretion to
refuse the writ. Neu v. Voege,
MARITIME LIENS. See LIENS, 10-14.
MARRIED WOMEN. See ATTACHMENT, 2. DEBTOR AND CREDITOR, 3.
WILLS, 1, 2.
Contract of employment: Construction: Breach.
1. Where the complaint in an action to recover damages for breach of
a contract of employment alleged that the defendant hired the
plaintiff "as manager of its business," and the answer admitted
that he "agreed to assume charge of and to manage the defend-
ant's business and store," the plaintiff, as matter of law, was some-
thing more than a mere manager of a store, and had some discretion
as to the manner of the discharge of his duties, including the time
and manner of advertising, and the employment of his time; and
occasional absences while actually employed in good faith in what
he deemed to be the furtherance of the interests of defendant's
business would afford no ground for his discharge. Moody v.
Streissguth Clothing Co.
2. The action of an employer in retaining an employee after knowl-
edge of a breach of duty, with an admonition "not to let it hap-
pen again," is a condonation of the breach.
Ibid.
3. In an action for wages, evidence that plaintiff had been employed by
defendant "at a salary of $1,500 per annum, to begin June 1, 1889,"
and that he began work on that date, and continued uninterrupt-
edly in defendant's employ until June 1, 1895, without any new
contract, is held sufficient to require the submission to the jury
of the question whether plaintiff was employed for the entire year
ending June 1, 1895, at the rate of $1,500 per annum, although dur-
ing that year defendant notified him that his salary had been re-
duced. Dickinson v. Norwegian Plow Co.
376
Injuries to servants: Negligence.
4. In an action by a servant to recover for injuries alleged to have
been caused by a failure to furnish him a safe place in which to
work, a failure to furnish the latest and most approved appliances
does not constitute negligence as matter of law, the test of liabil-
ity being whether the master exercised such care in that regard
as men of ordinary care and prudence observe in and about their
affairs, or such care as the great mass of men observe under simi-
lar circumstances. Innes v. Milwaukee,
170
5. Where the only negligence relied on in an action for the killing of
a boiler attendant by the bursting of an elbow in a blow-off pipe
was the use of a cast-iron elbow, a finding of the special verdict
that it was constructed of the materials and in the manner ordi-
narily and usually employed in the construction of such elbows
is inconsistent with findings that there was a defect or insuffi-
ciency in it which caused it to give way and burst, and that the
defendant was guilty of want of ordinary care which was the
proximate cause of the accident.
Ibid.
6. In an action to recover for injuries received by a boy fifteen years
old while engaged in operating a machine in defendant's factory
about which he had had more or less experience, the question
whether the plaintiff assumed the risks arising from defects in the
machine, by continuing in the employment knowing of such de-
fects, is held to have been for the jury. Vorbrich v. Geuder &
Paeschke Mfg. Co.
277
7. Per MARSHALL. PINNEY, and NEWMAN, JJ. Although, in an action
for personal injuries alleged to have been caused by the unex-
pected revolution of a stamping machine, operated by touching a
pedal which engaged, by means of a clutch, a wheel on a revolving
shaft, the testimony of the plaintiff that the machine made such
an unexpected revolution the day before, and also at the time of,
the accident, and the testimony of another witness that he subse-
quently saw it do the same thing when there was no one near it,
might raise a presumption of negligence as matter of law, such
presumption would be overcome by conclusive proof that the
machine was free from all discoverable defects.
Ibid.
8. Unless apprised to the contrary, a master has the right to assume
that a boy eighteen years of age is possessed of average intelli-
gence for a person of his years. Roth v. S. E. Barrett Mfg. Co. 615
9. A boy of average intelligence, eighteen years of age, who is put at
work pushing straw into a straw cutter with a stick, will be pre-
sumed, as a matter of law, to know and appreciate the danger of
getting his fingers caught in the rolls and being injured thereby,
and his evidence to the contrary does not raise a question for the
jury.
Noscitur a sociis, 673, 674.
Res ipsa loquitur, 544
MEASURE OF DAMAGES. See DAMAGES.
MECHANICS' LIENS. See LIENS, 1-7.
MILLS AND MILL-DAMS. See WATERS, 1-3.
MILWAUKEE CITY CHARTER. See TAXATION, 1. TAX TITLES, 4, 5.
See CORPORATIONS, 8, 9. FIXTURES, 1. LANDLORD AND TENANT, 1, 2.
LIENS, 3, 7. TENANTS IN COMMON, 2.
1. In an action to foreclose a mortgage the rendition of a personal
judgment for a deficiency before the deficiency became due by the
terms of the contract is a material error. Packard v. Kinzie Ave.
Heights Co.
2. In a proceeding by the wife of a mortgagor to set aside the mortgage
so far as it affected her dower and homestead rights in a portion
of the land, she testified that she could read English print with
difficulty and English script not at all; that she intended to exe-
cute the instrument, but that she had been induced by her hus-
band to believe that the mortgage covered his store property only.
The mortgage was regular upon its face, and no fraud was charged
against the mortgagee. The attorney who took the wife's ac-
knowledgment testified that he either read the mortgage to her, or
asked her if she knew its contents, and she had replied that she
did, basing his testimony upon the fact that he never took an ac-
knowledgment without doing one or the other. Held, that a find-
ing that the wife voluntarily executed the instrument knowing
its contents should not be disturbed on appeal. German Bank v.
Muth,
3. In an action to foreclose a second mortgage the owner of the first
mortgage did not appear, but upon motion of the plaintiff judg
ment was rendered directing that the proceeds of the foreclosure
sale be applied so far as necessary to pay off the first mortgage.
The plaintiff bid in the premises at the sale for less than the
amount due on his mortgage. The sheriff paid the net proceeds
to him and he retained the same. Held, that a deficiency judg-
ment against the mortgagor for the amount due on the first mort-
511
gage was erroneous. Kasson v. Tousey,
4. A mortgage while outstanding as security for the indebtedness evi-
denced by promissory notes, is not properly subject to conver-
sion to the mortgagor's damage. An answer in an action on the
notes which admitted the indebtedness and set up a counter-
claim for the conversion of the mortgage was therefore properly
stricken out as frivolous. Wilson v. Burhans,
550
Aid to railroads: Indebtedness: Constitutional law.
1. The provision of sec. 946, R. S., that the acceptance by a munici
pality of a proposition for subscription to the stock of a railroad
company and the issuance of bonds in payment thereof may be
given by the signatures of a majority of the resident taxpayers,
without a submission of the question to the electors, is valid, and
such consent when so given creates a contract binding upon the
municipality. State ex rel. M., T. & W. K. Co. v. Tomahawk, 73
2. Sec. 3, subch. IX, of the charter of the city of Tomahawk (ch. 58.
Laws of 1891) provides that "no debt shall be contracted against
the city
unless the same shall be authorized by a majority
of all the members-elect of the common council," and that "the
common council shall not, in any case, or under any pretext, or
for any purpose whatever, contract debts or liabilities of any kind,
name, or nature, exceeding the amount which it is authorized by
the charter to levy for the current year." Secs. 12, 15, subch. V,
provide that the council shall manage and regulate the finances
and levy all taxes. Sec. 11, subch. IV, provides that, in addition
to the amount of taxes for general city purposes, special taxes may
be levied for certain purposes "of public utility," provided such
special taxes shall first have been recommended by the council and
afterwards approved by a vote of the people. Sec. 19, subch. XIII,
authorizes the council to issue bonds of the city, not to exceed five
per cent. of the assessed valuation, for such public improvements
as shall be authorized by ordinance of the council adopted by a
vote of three fourths of its members, the issuance of such bonds to
be approved by a vote of the people. Held, that these provisions,
construed together, are not at variance with, and do not by impli-
cation repeal, the general law relating to municipal aid to railroads
(secs. 945 et seq., R. S.), sec. 3 of subch. IX being applicable only
to debts for ordinary municipal purposes, and sec. 19, subch. XIII,
being an affirmative provision merely, which does not prevent the
city from exchanging its bonds for stock of a railroad company up
to the prescribed limit, when a valid contract therefor is made
under the general law. Perrin v. New London, 67 Wis. 416. dis-
tinguished.
Ibid.
3. Although the amendment to sec. 3, art. XI, Const., limited the
amount of indebtedness which a city might incur, yet the power
and duty of the legislature remained to impose other restrictions
or regulations; but the sufficiency of such restrictions being a ques-
tion within the discretion of the legislature, its action in the
premises is not reviewable by the courts.
Ibid.
4. Under sec. 948, R. S. (providing that no corporate bonds issued in
exchange for railroad stock "shall be delivered, or be valid if de-
livered," until the road shall have been actually completed and
in operation), no indebtedness on the part of the municipality can
be said to have been incurred, within the meaning of sec. 3, art. XI,
Const. (prohibiting municipalities from becoming indebted in any
manner in excess of five per cent. of the value of the taxable prop-
erty therein, "to be ascertained by the last assessment for state
and county taxes previous to the incurring of such indebted-
ness"), until the road is completed in the prescribed manner. Ibid.
5. The assessment intended as the basis of determining whether a
municipal indebtedness is in excess of the five per cent. limit im-
posed by said sec. 3, art. XI. Const., is the last assessment of the
municipality as equalized by the local board of review for the
purposes of general taxation.
Ibid.
6. In determining whether a proposed issue of municipal bonds is in
excess of the constitutional limit of indebtedness, all forms of in-
debtedness must be included except warrants for money actually
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