in the treasury and contracts for ordinary expenses within the
current revenue.
Ibid.
7. Where a city before its incorporation formed part of a school dis-
trict, no part of the indebtedness of such district should be reckoned
as an obligation of the city, in determining whether its constitu-
tional limit of indebtedness has been reached, unless such indebt-
edness is shown to have been legally apportioned between the city
and the district.
Ibid.
Ordinances: Penalties. See ACTION, 2. GAMBLING.
8. Although an act is a penal offense under the laws of the state,
further penalties for its commission may, under proper legislative
authority, be imposed by municipal by-laws or ordinances; and
the enforcement of the one does not preclude the enforcement of
the other. State ex rel. Milwaukee v. Newman,
258
Claims: Presentation: Appeal.
9. Under the general law for the incorporation of cities (ch. 326, Laws
of 1889, as amended by ch. 312, Laws of 1893), providing, in secs.
58-60, that no action shall be maintained against a city organ-
ized thereunder "upon any claim or demand of any kind or char-
acter whatsoever," unless it shall have been first presented to the
common council and disallowed in whole or in part, and that the
action of the council thereon shall be conclusive unless appealed
from within twenty days, failure to appeal from the disallowance
of a claim for personal injuries within the prescribed time con-
stitutes a bar to an action to recover therefor. McCue v. Wau-
pun,
625-
Defective streets, etc. See HIGHWAYS, 2.
10. A cross-walk is not defective as matter of law because an apron
from the sidewalk across the gutter is constructed, on a slope of
one and three-fourths inches to the foot, without cleats or other
devices to prevent slipping. Morrison v. Madison,
MURDER. See INSURANCE, 11.
MUTUAL BENEFIT SOCIETIES. See INSURANCE, 20.
See HIGHWAYS, 2. MASTER AND SERVANT, 4-9.
TIONS, 10. RAILROADS, 3-20. WATERS, 6-9.
1. If there is a substantial space between the boundaries of a traveled
way and a dangerous place on adjoining land, so that to reach such
place a traveler must necessarily wander from or pass wholly out-
side of such way and become a trespasser, the owner of the prem-
ises is not liable for injuries to a traveler sustained by reason
thereof. Gorr v. Mittlestaedt,
2. Thus, where a private driveway, twelve feet wide, with well-defined
boundaries, is situated over twenty feet from a cellar, the inter-
vening space being occupied by a grass plot and piles of stone ex-
tending from the ends of the cellar nearly to the driveway, the
owner of the premises is not liable for injuries received by a per-
son traveling on the driveway by invitation, whose horse became
unmanageable and caused the carriage to wholly leave the drive-
way and pass over the grass plot to the cellar.
Ibid.
NEGOTIABLE INSTRUMENTS. See BANKS AND BANKING, 1. VENDOR AND
PURCHASER, 2.
NEW TRIAL See APPEAL, 1, 9.
NONRESIDENTS. See GARNISHMENT. PUBLIC SCHOOLS, 2.
Of defects in title. See CORPORATIONS, 8. DEBTOR AND CREDITOR, 1.
DEEDS, 5.
Of conveyance. See LIENS, 2. RECORDING ACTS.
Of appeal. See JUSTICES' COURTS.
Of default of original promisor. See GUARANTY, 2.
See EQUITY, 5.
Of fraudulent foreclosure.
See TENANTS IN COMMON, 2.
Of insolvency. See VOLUNTARY ASSIGNMENT.
OBSTRUCTION of highway. See HIGHWAYS, 1.
OFFICERS.
Payment of money by public officers: Recovery. See COUNTIES, 3, 4.
Assessors. See TAXATION, 5-7.
Of corporations: Apparent powers: Estoppel. See CORPORATIONS,
18-20.
District attorney. See COUNTIES, 2, 4.
Sheriff. See ATTACHMENT, 2. COUNTIES, 5.
ORDINANCES. See MUNICIPAL CORPORATIONS, 8.
PARTIES. See BANKS AND BANKING, 2, 3. EQUITY, 4. LIBEL, 2.
1. Until there has been an accounting and settlement of partnership
affairs one partner can have no claim against the estate of a
deceased partner, growing out of the state of the partnership
accounts, which is enforceable against the heirs of the latter under
sec. 3274, R. S., or which will be barred by sec. 3844 if not season-
ably presented to the probate court. Blakely v. Smock,
611
2. A cause of action for the settlement of partnership accounts cannot
be joined with one to recover from the heirs of a deceased partner
the balance found due the plaintiff, since one is purely equitable
and the other purely legal, and the parties are not the same. Ibid.
PATENTS of land. See TAXATION, 8.
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See ACTION, 3, 4. APPEAL, 12, 13. CORPORATIONS, 10, 22. CRIMINAL
LAW. 5, 8. GAMBLING, 4. LIBEL, 5. MORTGAGES, 4. RAILROADS, 1,
19. TAXATION, 1, 3. VENDOR AND PURCHASER, 3. WATERS, 9.
1. Under secs. 2655, 2656, R. S. (providing that a defendant may plead
as a counterclaim "a cause of action arising out of the contract
or transaction set forth in the complaint as the foundation of the
plaintiff's claim, or connected with the subject of the action "),
the defendant in a civil action for assault and battery may set up
as a counterclaim a cause of action for a prior assault committed
upon him by the plaintiff, in defending himself from which the
defendant committed the assault for which the action was brought.
Pelton v. Powell,
2. Where, in an action for breach of a contract for the delivery of a
certain amount of goods annually for three years, to be selected
by the plaintiff, the complaint declared merely for successive de-
faults as the goods became due, and did not allege denial of lia-
bility, no recovery could be had for failure to deliver goods not
due at the time of the commencement of the action. Hubbard v.
Haley,
578
APPEAL. ATTACHMENT, 3. BANKS AND BANKING, 2, 3.
CHANGE OF VENUE. CORPORATIONS, 10, 22. COSTS. COURT AND
JURY. COURTS, 3. CRIMINAL LAW. EQUITY, 3, 4. EVIDENCE.
GAMBLING, 3. 4. INSTRUCTIONS TO JURY. JUSTICES COURTS.
LIENS, 5, 9. MORTGAGES, 1, 3. 4. PARTNERSHIP. PLEADING. PRO-
CESS. VERDICT. VOLUNTARY ASSIGNMENT, 1. WILLS, 6-8. WRIT
of error.
Impropriety in the argument of counsel to the jury will not be
cured by the mere formal announcement that objection thereto
is sustained, but to have that effect the court must at once, and
plainly, direct the jury to disregard the objectionable remarks.
Andrews v. C., M. & St. P. R. Co.
PREFERENCES. See CORPORATIONS, 21.
CRIMINAL LAW, 5. EQUITY, 1, 2.
INSTRUCTIONS TO JURY, 4. MASTER AND SERVANT, 7-9.
PRESUMPTIONS. See BOUNDARIES, 1.
PRIORITY. See LIENS, 2, 3, 7.
PRIVITY of contract. See LANDLORD AND TENANT, 1.
To sustain an action for malicious abuse of process. the process must
have been used to accomplish some unlawful end, or to compel the
person against whom it runs to do some collateral thing which he
could not legally be compelled to do. Thus, entering judgment on
a judgment note after 10 o'clock at night, and immediately levy-
ing an execution thereon by forcibly breaking into the debtor's
store, with the intent to injure his credit and business reputation,
the creditor all the time knowing that the debtor was solvent and
ready and willing to pay the note upon demand, does not render
the creditor liable to such an action. MARSHALL, J., dissents, being
of the opinion that if process to collect a judgment be executed in
an unnecessarily harsh and oppressive manner, with a malicious
purpose to injure the judgment debtor, such conduct constitutes
an actionable wrong. Docter v. Riedel,
PROMISSORY NOTES. See BANKS AND BANKING, 1. VENDOR AND PUR-
CHASER, 2.
PROMOTERS. See CORPORATIONS, 3-9.
PROOFS OF Loss. See INSURANCE, 19.
PROXIMATE CAUSE. See HIGHWAYS, 2. RAILROADS, 9, 11, 17.
PUBLIC LANDS. See TAXATION, 8.
PUBLIC POLICY. See INSURANCE, 3.
1. The wrongful exaction of a tuition fee by the teacher and principal
of a school as a condition of allowing a pupil to remain in school,
and the payment of such fee under protest, are not equivalent to
an expulsion of the pupil from the school, where the school board
alone has the power of expulsion. State ex rel. Smith v. Board of
Education,
2. Where a child of school age is sent or goes into a school district
with the primary purpose of securing a home with a particular
family, he is entitled to the benefits of the public schools in that
district free of charge; but if his primary purpose in locating
therein is to participate in the advantages of the public schools he
must pay tuition, even though he has some other incidental pur-
pose to subserve while so attending school.
Ibid.
PUBLICATION of libel. See LIBEL, 3.
Municipal aid. See MUNICIPAL CORPORATIONS, 1–7.
Spur tracks.
1. A complaint in an action against a railway company for failure to
operate a spur track to a warehouse under sec. 1802, R. S., which
fails to show that the plaintiff constructed or owns the track, does
not state a cause of action, the duty of railroad companies to oper-
ate such tracks under that section being limited to those provided
by the person desiring the service. Bartiett v. C. & N. W. R.
Co.
2. Although a railroad company constructed a spur track in a public
street especially for the benefit of the owner of a warehouse, and
such track had been improved and graded by him, a promise by
the railroad company to continue to operate it for his benefit
would be without consideration.
Ibid.
Fences: Killing of animals.
3. A person in charge of horses, with knowledge of an opening in the
fence along a railway right of way, turned them into a pasture
not far distant, the fences of which he knew or ought to have
known had been partially destroyed by forest fires a short time
previous, so that the horses readily escaped and reached said open-
ing. Held, that he was guilty of contributory negligence which
would preclude recovery for the killing of the horses by a passing
train. McCann v. C., St. P., M. & O. R. Co.
Surface waters: Failure to construct culverts, etc. See WATEKS, 6–9.
Fires negligently set.
4. To warrant a recovery for the destruction of property by a fire al-
leged to have been negligently set, the fire must be identified and
traced as the same continuing fire all the way from the place of
its origin to the location of the destroyed property, either by wit-
nesses who saw it or by facts and circumstances equally persuasive.
Montague v. M., St. P. & S. S. M. R. Co.
5. Where a witness, who testified on his examination in chief that he
saw a fire in section 9 on the 9th of July, and that it went south
and was in section 17 on the 23d of that month, admitted on cross-
examination that he did not trace the fire from section 9 to section
17, and was not on section 9 between those dates but was miles
away most of the time, his testimony, so far as it tended to show
that the fire in section 9 on the 9th crossed to section 17, should
have been stricken out on motion as mere assumption and con-
jecture.
Ibid.
6. It is the duty of a passenger to ascertain, before boarding a train.
whether it stops at his destination, and his failure in that regard
imposes no duty upon the company to stop at such station con-
trary to the published schedule. Schiffler v. C. & N. W. R. Co. 141
7. It is not within the apparent power of the conductor of a passenger
train to bind the railroad company by any promise to change the
published schedule of the train.
Ibid.
8. A boy of ordinary intelligence, seventeen years old, who had on
several occasions made journeys by railroad alone, is held to have
assumed the risk in jumping from a moving train at a station at
which the train was not scheduled to stop, although the conductor
had accepted his fare to that station and promised to slow up for
him, and the boy thought the promise was being kept and jumped
when the train did not appear to be slowing up any more.
9. The failure to stop the train in such a case was not the proximate
cause of injuries received by reason of the jump.
Ibid.
10. A passenger on a railway train which has been stopped by burning
tanks of oil on the track, who, from mere motives of curiosity and
pleasure, leaves a place designated as a temporary station at a safe
distance from the fire, and goes within eighty-five feet of the fire,
and remains there for some time, thereby exposing himself to ob-
vious danger, is guilty of such contributory negligence as will pre-
vent a recovery for injuries caused by an explosion of one of the
tanks. Conroy v. C., Št. P., M. & O. R. Co.
243
11. Findings of the special verdict in such a case that if plaintiff had
remained at the temporary station he would not have been seri-
ously injured; that he unnecessarily and from motives of curiosity
and pleasure approached much nearer the burning cars; and that
his injuries were caused by reason of his so going nearer thereto,-
are held to be inconsistent with other findings that the defendant
in the exercise of ordinary prudence should have known of the
plaintiff's position in time to warn him of the danger from the
burning car; that it ought to have anticipated that plaintiff would
go nearer the car and thus incur such danger; that the warning
given plaintiff was negligently and insufficiently given; that plaint-
iff was not guilty of contributory negligence; that defendant did
not exercise reasonable care and prudence in designating a place
where plaintiff might take the train; and that its officers and
agents were guilty of negligence which was the proximate cause-
of plaintiff's injuries. No judgment should therefore have been
given upon the verdict.
Ibid.
12. The relation of carrier and passenger is held not to have ceased to
exist, although the actual transit had been interrupted for the
time being by the wreck on the track and plaintiff had voluntarily
left the temporary station, to which he had been transferred to
await another train, for the purpose of obtaining a nearer view of
the wreck.
Ibid.
13. The danger of an explosion of the burning tank of oil was not hid-
den or concealed so as to render the railroad company liable for
injuries occasioned thereby to an adult who had approached the
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