Badger vs. Janesville Cotton Mills. was supported. Plaintiff took the ladder in question, and placed it in position against the wall, in order to go up and remove the belt from the shaft. The hooks were turned in so as to keep the top of the ladder about four inches away from the wall. The foot was out about three feet and a half. Plaintiff ascended to the fourth or fifth round, leaned back with bis right hand hold of the ladder, and reached up with his left hand, and endeavored to remove the belt from the shaft, or away from the hanger. Finding he could not do anything further than to shove the belt away from the hanger, he started to descend, when in some way his left arm was caught and wound around the shaft, and torn off, and he was otherwise injured. The ladder was broken at the upper round on the left side, that being about sixteen inches from the top. Plaintiff testified that the breaking of the ladder caused him to make such movements as to result in his arm being caught by the shaft. On the trial the ladder was produced in court, and plaintiff testified in regard to it in substance as follows: "I had worked over a year, and always used this ladder. I used it frequently and made no complaint. It was all right so far as I knew. Thomas Cherry was associated with me as a loom fixer. We had both been on the ladder at once a short time previous. The hooks were then over a shaft, and the ladder had a slant of about eighteen inches. I have never heard any complaint about the ladder. I cannot see any rot in any part of the ladder. The grain seems to be a very poor grain. The ladder was about as far from the wall as now. It is not very straight grained." Thomas Cherry testified respecting the ladder, in substance, that he and plaintiff had both been on the ladder at the same time. There was other testimony to the effect that a ladder circumstanced as this one was at the time of the accident would be subjected to very little lateral pressure at the point where it broke; that the ladder was made of hemlock, which was rather brittle; Badger vs. Janesville Cotton Mills. that hemlock was rather poor wood for such purposes. F. H. Kemp testified as an expert that the ladder would carry two men standing quietly on it; that he would trust two men on it; that, with the base of the ladder three and one-half feet from the wall, it would carry 900 pounds steady load; that there were some symptoms of dead rot where the break occurred,― very slight, not enough to be observed except by a person of large experience; that it was not what you would call rot. There was other evidence given by plaintiff's witnesses bearing on the question, but none of which varies the foregoing. The ladder was made an exhibit, and sent to this court, with other exhibits in the case. An inspection of it fails to disclose any evidence of defects. The side pieces appear to be of good sound wood. From the foregoing, which fairly presents the plaintiff's case, in our judgment, we are unable to say that it would support a verdict in his favor, on the charge that the ladder was not reasonably suitable for his use. The evidence is all the other way, and may properly be said to be sufficiently strong and convincing to a person of ordinary understanding to produce conviction that the ladder was broken in some other way than from plaintiff's weight upon it. Though he says it did so break, the probabilities are all the other way; and they are so strong as to be inconsistent with any reasonable theory other than that he was mistaken. The jury would not be warranted in finding the existence of a fact on the positive testimony of a witness, which is contrary to conceded facts or matters of common knowledge, or to all reasonable probabilities. Payne v. C., R. I. & P. R. Co. 39 Iowa, 523; Thompson v. Pioneer-Press Co. 37 Minn. 285. That the lateral strain on a ladder circumstanced as this one was, eighteen inches from the top, caused by the weight of a man on the fourth or fifth round, is very small, is a matter of common knowledge. That the breaking of a ladder strong enough to support two or three times plaintiff's weight, by Williams vs. Dodge County. the use the one in question was designed to serve, was an event not within the range of reasonable probabilities, cannot be questioned. It needs no evidence from the mouths of witnesses to establish it, and testimony to the contrary would not change it. The conclusion of the trial court that the evidence produced by plaintiff was entirely insufficient to support a verdict was clearly right. Therefore the nonsuit was properly granted. By the Court.-The judgment of the circuit court is affirmed. WILLIAMS, Appellant, vs. DODGE COUNTY, Respondent. March 18-April 7, 1897. County liability to assistant for district attorney. An attorney who is appointed by the court to assist the district attorney in a criminal case, under the provisions of ch. 354, Laws of 1887 (sec. 752a, S. & B. Ann. Stats.), is entitled to be paid in the same manner as is provided by sec. 4713, R. S., for paying attorneys appointed to defend indigent criminals, that is, upon an order, entered in the minutes of the court in which the services are performed, certifying what is a reasonable compensation, and without such a certificate he cannot recover from the county for such services. APPEAL from a judgment of the circuit court for Dodge county: A. ScoTT SLOAN, Circuit Judge. Affirmed. The plaintiff, in February, 1892, was appointed by the circuit court for Dodge county to assist the district attorney of Dodge county in the prosecution of one Cook, charged with illegal banking. Thereafter Mr. Williams performed extensive and valuable services in such prosecution, and in November, 1892, presented his itemized bill therefor to the county board of Dodge county, amounting in all to $2,640.70. The board referred the bill to Hon. A. Scott Sloan, then Williams vs. Dodge County. judge of the circuit court for Dodge county, who thereafter made a report to the board recommending that Mr. Williams' bill be allowed at the sum of $1,331.75. Judge Sloan reported that, in his opinion, only $15 a day could be allowed under the statute, and it was this change which caused substantially the entire reduction of the bill. Upon this report the county board allowed the bill at $1,331.75 only, and the plaintiff appealed to the circuit court, and the action was referred to Hon. H. W. Sawyer, as referee, to hear, try, and determine. Testimony was received by the referee showing that the plaintiff's services were reasonably worth the amounts charged in his bill, and such testimony was not contradicted. But the referee found as the fact was that the plaintiff's bill had never been audited, certified, or allowed by any court, and for that reason was not a legal charge against the defendant county. The findings were confirmed, and judgment against the plaintiff rendered, and the plaintiff appealed. For the appellant the case was submitted on the brief of P. G. Lewis and D. Lloyd Jones. They contended that the plaintiff's claim was in fact submitted to the judge of the court in which the services were rendered, and it was therefore unnecessary to formally submit it again under sec. 752a, S. & B. Ann. Stats. The only question to be decided was the value of the plaintiff's services. It was not intended by that statute to limit the compensation to be paid, otherwise that intention would have been expressed, but the amount was left to the discretion of the court. Wm. N. Hamilton, for the respondent. WINSLOW, J. The judgment appealed from must be affirmed. The plaintiff was appointed to assist the district attorney under the provisions of ch. 354, Laws of 1887 (S. & B. Ann. Stats. sec. 752a). This section provides that counsel so appointed "shall be paid in the same manner as is The Fuller-Warren Co. vs. Shurts and another. now provided by law for the payment of counsel for indigent criminals." Sec. 4713, R. S., is the section which provides for the payment of counsel who defend indigent criminals, and the terms of this section are that the county "shall only be liable" to pay such sum as the court in which the services are performed shall, "by an order, to be entered in the minutes thereof, certify to be a reasonable compensation,” not exceeding $15 per day. The effect of the two sections is that counsel employed to assist the district attorney shall only be paid such sum as the court, by order entered in its minutes, shall certify to be a reasonable sum. No such order has been entered, or even applied for, in this case; and the consequence is that the plaintiff cannot recover. The communication of the circuit judge cannot take the place of an order of the court entered on its minutes. We do not reach the question whether the court has power to allow a greater sum than $15 a day. By the Court.- Judgment affirmed. THE FULLER-WARREN COMPANY, Appellant, vs. SHURTS and another, Respondents. March 18-April 7, 1897. Contract: Warranty. The plaintiff sent a written proposition to the defendants in which |