Von Rueden and others vs. The State.

paid by each defendant. Each is liable for the entire costs, and the judgment might properly be general as to the costs. 1 Bish. Crim. Proc. § 1035; Johnson v. State, 29 N. J. Law, 453-455.

We do not find any reversible error in the record.

By the Court. The judgment of the municipal court for the eastern district of Waukesha county is affirmed.

INDEX.

ABATEMENT of action. See APPEAL, 13. BANKS AND BANKING, 2. CRIMI

Cause of Action. See AGENCY, 3, 4. ATTACHMENT. BANKS AND BANK.
ING, 2, 3. CONTRACTS. CORPORATIONS, 3-6, 10, 12, 13. COUNTIES,
1, 4, 5. DAMAGES, 2. DEBTOR AND CREDITOR, 1. DEEDS, 4, 7, 8.
DIVORCE, 1. EQUITY, 1. GUARANTY. HIGHWAYS. INSURANCE, 9-11.
LANDLORD AND TENANT, 3, 4. LIBEL. MORTGAGES, 4. MUNICI
PAL CORPORATIONS, 10. NEGLIGENCE. PARTNERSHIP. PLEADING, 1.
PROCESS. RAILROADS, 1-4, 9, 10, 16, 17. SALE OF CHATTELS, 2.
TAXATION, 1, 3-7. TAX TITLES, 4, 5. TENANTS IN COMMON, 2.
VENDOR AND PURCHASER, 1, 2. WATERS, 1, 6-9.

Abatement and survival: Assignment. See BANKS AND BANKING, 2.
1. A cause of action for damages growing out of a conspiracy to de-
fraud by purchasing and disposing of goods without paying for
them is not one for damages done to personal estate, within the
meaning of sec. 4253, R. S. (providing that “actions for damages
done to real and personal estates" shall survive), and is not assign-
able. John V. Farwell Co. v. Wolf,

10
By whom to be brought — Who may maintain. See CONTRACTS, 3, 6.
CORPORATIONS, 13. COUNTIES, 1. TAXATION, 7.

Commencement. See TAX TITLES, 3.

Conditions precedent. See CONTRACTS, 4. GUARANTY, 1. TAXATION, 1–4.
Limitations. See COURTS, 2. PARTNERSHIP, 1. TAX TITLES, 1-3.
Civil or criminal?

2. An action by a city to recover a penalty for the violation of a mu
nicipal ordinance prohibiting an act which is a crime or misde-
meanor and punishable at common law or by statute, and prescrib
ing a penalty for its violation by fine with imprisonment on default
of payment, is quasi-criminal. State ex rel. Milwaukee v. Newman,
258

At law or in equity? See BANKS AND BANKING, 3. EQUITY, 3.
3. If a person in good faith brings an action in equity alleging facts
sufficient to constitute a good cause of action within some recog
nized principle of equity jurisp udence, but fails to establish some
fact essential thereto, yet does establish a state of facts entitling
him to some relief by way of damages or otherwise, the court will

not dismiss the bill and thereby render further litigation necessary, but will retain it and render such judgment as will do complete justice between the parties. Franey v. Warner,

222 4. The intention of a pleader in setting up facts pertinent to a claim for equitable relief by rescission of the sale and conveyance of certain land, but not material to a legal action for the recovery of a mere money judgment, is held to have been to state an equitable cause of action, even though the prayer for relief demanded judgment for an amount equal to the consideration paid for the conveyance as well as for the rescission. Topping v. Parish, 378 ADMINISTRATORS AND EXECUTORS. See BANKS AND BANKING, 2. COURTS, 2, 3. PARTNERSHIP. WILLS.

ADMIRALTY and maritime jurisdiction. See LIENS, 10-14.
ADVERSE POSSESSION. See TENANTS IN COMMON.

AGENCY.

See ATTACHMENT, 2. CORPORATIONS, 15, 19. EQUITY, 5.

1. In an action on a promissory note given to the manufacturer of threshing machines by one of its agents, who had been employed under a contract making him personally liable for all machines sold unless settled for by cash or notes before delivery, in payment for a second-hand machine which he had sold on his own responsibility and which had been returned to him because failing to work as represented, the question whether the transaction amounted to a sale of the machine to the defendant entirely outside the contract of agency, thus enabling him to insist upon an express warranty, is held, upon the evidence, to have been for the jury. Minnesota T. M. Co. v. Wolfram,

481

2. Evidence in such case that. after some correspondence in respect to the return of the machine and rescission, the transaction was adjusted by the defendant with plaintiff's general agent, in pursuance of which the tools and extras which had been furnished with the machine were returned and credited to defendant, and plaintiff sent him an invoice of the outfit, by which it was consigned to him for sale on commission and charged to him at the regular agent's price,― rendered the question of rescission also for the jury. Ibid.

3. A contract of agency for the sale of farm machinery provided for the payment of a certain commission upon machines sold and settled for, to be earned not by obtaining the orders alone, but by receiving and setting up the machines, instructing the purchasers in their use, and securing settlements for them. It also gave the principal the right to end the contract at any time and take into its possession all orders, notes, accounts, moneys, machines, or other property belonging to it in the hands of the agents. The agents were discharged without cause after they had obtained orders and before the same had been filled. Held, that they were entitled to recover only a reasonable remuneration for their services in obtaining orders which were afterwards actually filled with the principal's machines. Merriman v. McCormick H. M. Co. 600

4. The failure of the agents in such a case to surrender orders already obtained, upon the termination of the contract, in compliance with its terms, would not prevent them from recovering the reasonable value of their services in obtaining such as the principal afterwards actually filled.

Ibid.

5. Contracts appointed N. as agent "for the sale, on commission," of plaintiff's machines, fixed the commission at the amount received' above net prices quoted, and ordered certain machines to be shipped on or before a certain date, to be paid for "one half six months, balance eighteen months, in farmers' notes," final settlements to be made on certain dates, and discounts made for cash. They also provided, among other things, that all machines and their proceeds were to remain the property of plaintiff until so settled and paid for; that settlement should be made at any time on demand of plaintiff, and the entire proceeds of sales turned over to it; that the plaintiff should pay N. his commission from such proceeds; that all notes, taken in payment for machines, which did not comply with the terms of the contract should be applied on N.'s commission; that N. should pay the plaintiff fifty per cent. of all losses by reason of uncollectible notes, upon their being assigned to him; and that he should pay all freight, taxes, and insurance on machines ordered, and all damages sustained to them by reason of their not being properly housed. Held, that the contracts called for consignments of goods to be settled for out of the proceeds of sales, and were not contracts of conditional sale. Monitor Mfg. Co. v. Jones, 619

AMENDMENT.

Of pleading. See APPEAL, 12.

Of claim for lien. See LIENS, 5.

Of assignment proceedings. See VOLUNTARY ASSIGNMENT, 1. ANIMALS: Killing on track. See RAILROADS, 3.

APPEAL TO SUPREME COURT.

Not exclusive remedy. See WRIT OF ERROR.

From what may be taken: Orders.

1. Under ch. 212, Laws of 1895 (a revision of sec. 3069, R. S., relating to appeals, from which the provision authorizing an appeal from an order when it grants or refuses a new trial was omitted), an order denying a motion for judgment on the verdict and granting a new trial on the ground of errors in the instructions to the jury is not appealable; and the fact that the appeal was taken from that part of the order only denying the motion for judgment is immaterial. Rottsoll v. Two Rivers Mfg. Co. 324

2. A stay of proceedings is not an injunction within the meaning of sec. 2773, R. S. (abolishing the writ of injunction, and substituting therefor "a command to refrain from a particular act"). An order denying such a stay, therefore, is not appealable under the provision of ch. 212, Laws of 1895, allowing an appeal from an order which "grants, refuses, continues, or dissolves an injunction." Rossiter v. Etna Life Ins. Co.

466

3. In an action for an accounting the trial judge after a hearing filed findings of fact and conclusions of law and ordered that upon the basis thereby determined an accounting be had. No other judg ment or order was entered. Held, that the order was an order of reference for taking an account, which did not determine the rights of any of the parties, and was therefore not appealable under ch. 212, Laws of 1895. Hyde v. German Nut. Bank, 406.

Jurisdiction: Consent of parties.

4. Consent of the parties cannot confer jurisdiction upon the supreme court to entertain an appeal. Ibid