Requisites and validity. See HOMESTEAD.
Same: Grant to person not in existence.

1. In general, a grant to a person not in existence is void; but where
the parties to the transaction knew that the grantee named was
dead, the inference is that by the use of that name they meant
to designate some existing person or persons, and the court will
inquire into the situation, the general design of the parties, and
the equities between them, to ascertain who was intended.
Bank v. Plank,

City

653

2. Thus, in this case, by the use of the name of a decedent as gran-
tee in a conveyance of land it was intended to designate the ex-
ecutor of his will and to pass the title to such executor in his
capacity as such, charged with such trust as might be found
necessary to protect all parties interested in the estate of the
decedent; and the deed is given effect accordingly.
DEFICIENCY. See CORPORATIONS, 11. MORTGAGES, 4.
DELIVERY. See CHATTEL MORTGAGES.

INSURANCE, 2-4.

DEMURRER. See ACTION, 1. PLEADING, 2-4.

DEPOSITS. See BANKS AND BANKING, 1-3, 8, 9, 13, 14.
DIRECTING VERDICT. See STREET RAILWAYS, 7.

DISCHARGE. See MASTER AND SERVANT, 1.

DISCONTINUANCE. See APPEAL, 2. STREET RAILWAYS, 7.

Ibid.

DISCRETION. See ABATEMENT AND REVIVAL, 2, 3. ACTION, 3. AP-
PEAL, 8. ATTORNEY AND CLIENT, 4, 5. JUDGMENT, 3, 7.
ING, 6.
SPECIFIC PERFORMANCE, 1.

DISCRIMINATION. See CONTRACTS, 5-7.

PLEAD-

DISMISSAL AND NONSUIT. See ACTION, 2, 3. APPEAL, 2. ARBITRA-
TION AND AWARD, 3, 4. GARNISHMENT, 1. STRLET RAILWAYS, 7.

DIVORCE.

1. A judgment in a divorce action awarding a certain sum as and
for "permanent alimony and division of property" must be con-
strued as making a final division of the property, not open to
change after the term at which it was rendered. Kistler v.
Kistler,
491

2. Such a judgment becomes the separate property of the wife and
is not affected by remarriage of the parties to each other. Ibid.
3. A stipulation between the parties to a divorce action, reciting
their agreement to separate and providing that the wife should
prosecute the action and should accept a certain sum as ali-
mony and should not demand any further sum, was void as be-
ing an agreement in aid of divorce.
Ibid.

4. Payment of the sum mentioned in accordance with such void stip-
ulation did not operate to satisfy the judgment in a prior di-
vorce action between the same parties, in which the wife was
awarded a certain sum as a final division of property. Ibid.

DOCKET ENTRIES. See CRIMINAL LAW, 2, 3.

DOCUMENTARY EVIDENCE. See NAVIGABLE WATERS, 2, 4.

DOWER. See HUSBAND AND WIFE, 1, 2, 5, 6.
DUE PROCESS OF LAW. See PROCESS, 3.
ELECTION OF REMEDIES. See ATTACHMENT.
EMBEZZLEMENT. See BILLS AND NOTES, 3, 4.

EMINENT DOMAIN.

Condemnation for city street: Appeal.

CORPORATIONS, 7.
PARTNERSHIP.

1. By confirming, pursuant to sec. 925-166, Stats. (1898), an assessment of damages by reason of the condemnation of land for a street, a city waives the objection that the award is excessive, and is therefore not a "party aggrieved" by such assessment, within the meaning of sec. 925-177, and cannot appeal therefrom. Grand Rapids v. Bogoger, 530

2. Upon appeal by the landowner from such an assessment the award cannot be reduced, and acceptance, pending the appeal, of the amount awarded is not a waiver of the right to prosecute the appeal. Ibid.

ENTIRE CONTRACTS.

See CONTRACTS, 1. EQUAL PROTECTION OF LAWS. See BANKS AND BANKING, 4-9. CONSTITUTIONAL LAW, 18. RELIGIOUS SOCIETIES, 4.

EQUITY.

Jurisdiction. See CORPORATIONS, 7. TAXATION, 1.

Same: Enjoining enforcement of statute.

1. It is competent for a court of equity to entertain an action commenced by a person, specially interested, against administrative officers to enjoin them from executing a law, upon the ground of its being unconstitutional, when such person would otherwise be irremediably damaged. Wadhams Oil Co. v. Tracy,

150 2. The question of equity jurisdiction relates, technically, to power itself, but in the broader sense, when such power should or should not be used. Ibid. 3. Courts of equity should, as a rule, decline to exercise jurisdiction, though having it, to enjoin public officers from executing the legislative will as to mere minor features of an enactment, not essential to efficacy of the general and dominant features. Ibid.

At law or in equity? See INJUNCTION, 1.
ESCROW. See CHATTEL MORTGAGES.

ESTOPPEL. See APPEAL, 6. CORPORATIONS, 5, 6. MORTGAGES, 8. TAX-
ATION, 1. TOWNS, 2.

EVIDENCE.

Judicial notice.

1. In the absence of proof as to the law of another state, the court cannot take judicial notice that it differs from that of Wisconsin. Illinois S. Co. v. Warras, 119

Presumptions. See APPEAL, 7. CORPORATIONS, 4. DEEDS. FALSE REPRESENTATIONS, 1. MASTER AND SERVANT, 23. MUNICIPAL CORPORATIONS, 9. SIGNATURES, 3, 4.

Burden of proof. See INSURANCE, 18.

MUNICIPAL CORPORATIONS, 13.

NEGLIGENCE, 7, 9. PARTNERSHIP, 2. RAILROADS, 26.

Competency. See BREACH OF MARRIAGE PROMISE, 3-5. INSURANCE, 3.
MASTER AND SERVANT, 6, 7, 12. RAILROADS, 15.

2. An intent already formed is a fact and may be testified to like
any other fact by the person who formed it. Sharpe v. Hasey,
76

Relevancy and materiality.

3. The competency of a motorman at the time of an accident being
in question, evidence as to his competency when he first began
to work, a few days before, was relevant and material. Fisher
v. Waupaca E. L. & R. Co.
515

Parol evidence. See CONTRACTS, 12.

Prima facie evidence. See BANKS AND Banking, 11. SIGNATURES, 1..
Admissions. See ARBITRATION AND AWARD, 4. PARTNERSHIP, 4.
4. A written notice of injury served by plaintiff on defendant under
subd. 5, sec. 4222, Stats. (1898), about a month before the ac-
tion was commenced, was in the nature of an admission delib-
erately made that the damages did not exceed the sum stated
in such notice, and was admissible on the question of the amount
of damages, even though the action, in which a larger sum was
claimed, was commenced within a year after the injury. Ber-
ger v. Abel & Bach Co.
321

Documentary evidence. See INSURANCE, 2-5. NAVIGABLE WATERS, 2, 4.
Opinion evidence: Competency. See MASTER AND SERVANT, 8, 9.
STREET RAILWAYS, 3.

5. Expert testimony directed to ordinary phenomena easily observ-
able by any one of ordinary intelligence is unnecessary and im-
proper. Ladwig v. Jefferson Ice Co.
191

6. The opinion of a witness as to the extent to which certain gear-
ing was worn two years before the time in question should have
been excluded in the absence of data upon which to base it,
there being no uniformity of progress in such wearing. Wink-
ler v. Power & M. M. Co.

Same: Effect and weight.

244

7. The opinions of experts, so far as they clash with common knowl-
edge or ordinary observation of simple implements, should not
be given weight or credence. Ladwig v. Jefferson Ice Co. 191
Weight and sufficiency. See ARBITRATION AND AWARD, 1. BANKS AND
BANKING, 13, 14. BREACH OF MARRIAGE PROMISE, 1. CARRIERS,
2, 3. CONTRACTS, 1. EVIDENCE, 7. HIGHWAYS, 6. INSURANCE, 2,
19. LOGS AND TIMBER, 2. MASTER AND SERVANT, 6, 14, 17.
MORTGAGES, 6, 8. PARTNERSHIP, 3. RAILROADS, 2, 3. SALES, 3.
SIGNATURES. STREET RAILWAYS, 8, 10.

Same: Contradiction of physical laws.

8. The proposition that testimony as to the manner in which an in-
jury was inflicted is in contradiction of known physical laws
and therefore impossible and incredible must be supported by
demonstration, not by mere conflict of evidence; and all the nec-
essary data for demonstration must appear affirmatively and not
depend upon mere credibility of other witnesses. Winkler v.
Power & M. M. Co.

244

9. In an action for personal injuries caused by the spilling of molten
iron from a crane ladle in defendant's foundry, the evidence is
held not to furnish data sufficient to demonstrate that the in-
jury could not possibly have happened in the manner testified
to on the part of plaintiff; and the question whether it did so
happen was one for the jury.
Ibid.

EXCEPTIONS. See APPEAL, 5.

EXCESSIVE DAMAGES. See DAMAGES, 3-8. NEGLIGENCE, 13.

EXCISE. See INTOXICATING LIQUOors.

EXECUTIONS. See GARNISHMENT. MORTGAGES, 2.

EXECUTIVE POWERS. See CONSTITUTIONAL LAW, 2, 3.

EXECUTORS AND ADMINISTRATORS.

Allowance and payment of claims: Appeal. See JUDGMENT, 8.
1. Where a claim against an estate was allowed in the county court
and the time for filing claims had expired and money was in
the executor's hands in excess of all claims, the executor was
bound to pay such claim, and was not excused from doing so by
the fact that, before the time for filing claims had expired, he
had paid to legatees all moneys in his hands to an amount in
excess of the claims filed, without an order of court but with
his co-executor's consent. Citizens T. Co. v. Scheftels, 307
2. On appeal to the circuit court from an order of the county court
commanding an executor to pay an allowed claim, the claimant
procured an order to show cause, based on facts stated in the
appellant's answer, why the order should not be affirmed. The
order to show cause was required to be served at least twenty-
four hours before hearing, but was served five days theretofore.
On the return day the executor objected that the action should
be placed on the calendar for trial, but this objection was over-
ruled and judgment entered affirming the order of the county
court. Held, that as this judgment was correct on the merits
any technical errors in the summary procedure were not ground
of reversal, in view of sec. 2829, Stats. (1898), and sec. 3072m,
Stats. (Laws of 1909, ch. 192, sec. 1).
Ibid.

EXEMPTIONS. See MUNICIPAL CORPORATIONS, 2, 6.
EXPERT TESTIMONY. See EVIDENCE, 5-7. MASTER AND SERVANT, 8, 9.
STREET RAILWAYS, 3.

FALSE REPRESENTATIONS.

1. Proof that more than a year after plaintiff represented that she
was the only person who could teach dermatology other schools
of dermatology were advertised, did not show falsity of the rep-
resentations, there being no presumption that such schools ex-
isted at the prior date. Pierce v. Stolhand,
286
[2. Whether or not such a representation related to a mere matter
of opinion and hence, even if false, did not constitute actionable
fraud, not determined.]
Ibid.
FELLOW-SERVANTS. See MASTER AND SERVANT, 16-20. RAILROADS,
2-26. WITNESSES, 1, 2.

FINDINGS. See APPEAL, 5, 8-10, 18. CONTRACTS, 9. TRIAL, 14-16. FOOD. See CONSTITUTIONAL LAW, 17.

FORECLOSURE. See MORTGAGES, 2-4. VENDOR AND PURCHASER, 2, 4. FOREIGN CORPORATIONS. See INSURANCE, 12-16. PROCESS, 1, 2. FOREIGN LAWS. See EVIDENCE, 1.

FORFEITURES. See VENDOR AND PURCHASER, 2, 5.

FRANCHISES. See APPEAL, 16.

FRAUD. See BILLS AND NOTES, 3, 4. CORPORATIONS, 1-8, 10-12. FALSE REPRESENTATIONS.

FRAUDS, STATUTE OF.

Agreements not to be performed within one year.

1. Under the statute of frauds of Colorado relating to contracts for the leasing for a longer period than one year or for the sale of any lands (substantially the same as sec. 2304, Stats. 1898), several distinct and separate writings may be construed together as containing all the terms of the contract, though only one of them be signed by the party to be charged. Thus, in this case, proposals by plaintiff to assign a lease, the lease itself, and an undertaking by defendant to accept one of such proposals, taken together, are held to satisfy all requirements of the statute. Hummer v. McGee, 216 2. An oral lease of land for one year, to take effect in the future, is valid. Baumgarten v. Cohn, 315 3. Such a lease is not within the terms of sec. 2304, Stats. (1898), the latter section being a part of ch. 105, entitled "Of fraudulent conveyances and contracts relating to personalty." Ibid. 4. Even though a lease of land for one year be a chattel real and do not convey any interest in real property, it is nevertheless a contract "relating to real estate," within the meaning of the title to ch. 104, Stats. (1898), which includes said sec. 2304. Ibid.

FRAUDULENT CONVEYANCES.

In general, under sec. 2320, Stats. (1898), a transfer of property cannot be impeached for fraud upon subsequent creditors of the transferor unless there was at the time of the occurrence mutual intent to defraud them. Atlanta & W. B. & C. Asso. v. Smith,

FREEDOM OF WORSHIP. See RELIGIOUS SOCIETIES, 4.

GARNISHMENT.

In aid of execution issued out of justice's court.

377

1. In a garnishment action in a justice's court in aid of execution, under sec. 3700, Stats. (1898), no loss of jurisdiction results from return of the execution nulla bona. The action does not depend upon a levy or seizure by virtue of the execution, but upon the absence of such levy; and the right of the justice to the custody of property delivered to him by the garnishee pursuant to sec. 3723b rests upon that statute, not upon the execution. Kremer v. Arians, 662