defence resting upon such a theory in this case cannot be sanctioned, although cases may possibly arise in which even the common prudence of an engineer might require him to leave his engine to escape danger; but such cases will be rare exceptions, and depend upon very peculiar circumstances.

In the case of Wood v. The Am. Ex. Co. 1 N. W. REP. (N. S.) 190, (Wis. 150,) this court very recently refused to disturb the verdict of the jury when they found that the driver of a vehicle in the street, in collision with another vehicle, was careless because he jumped from his wagon and let go of the lines of his team. The jury may have found the negligence of the deceased to have consisted solely in his not jumping off from his engine; and from the two questionable and nearly contradictory findings upon the question whether he might not have taken another track, they probably did so find. Such a verdict did not warrant the judgment. The judgment of the county court is reversed, with costs, and the cause remanded for a new trial.

AUGUST SCHOEFFEL, Respondent, vs. CHARLES HINZE,

Appellant.

Filed November 28, 1879.

An action for assault and battery was commenced before a justice, judgment for defendant, appeal taken to the circuit court, and new trial had resulting in verdict for plaintiff for one dollar damages. Held that he was entitled to full costs.-[ED.

Appeal from Waukesha circuit court.

S. A. Randles and Edwin Hurlbut, for respondent.
Ludwig & Somers, for appellant.

COLE, J. The question in this case relates to the amount of costs which the plaintiff is entitled to have taxed in his favor. The action was for an assault and battery commenced in justice's court. On the trial in that court there was a judgment for the defendant. The plaintiff took an appeal to the circuit court, having made the affidavit prescribed by statute entitling him to a new trial. On the trial in the

circuit court there was a verdict in favor of the plaintiff for one dollar damages. The plaintiff's costs and disbursements were taxed at $169.21. The defendant objected before the clerk to this taxation, and took an appeal therefrom to the circuit court, where the taxation of the clerk was affirmed. The counsel for the defendant claimed before the clerk and in the circuit court, as he does here, that as the action was

for an assault and battery, and the verdict for the plaintiff was less than fifty dollars, that the costs allowed the plaintiff should not exceed the damages. In this view of the statute we are unable to concur.

The statute which regulates as to costs on appeal generally declares that where there is no new trial in the appellate court, if the judgment be affirmed, costs shall be awarded to the respondent; if reversed, costs shall be awarded to the appellant. Section 69, chapter 133, T. R. S. The statute further provides that the same costs, fees and disbursements shall be allowed to the successful party in cases of new trial on appeal in the appellate court, as an affirmance or reversal of a judgment. Section 73. In this case both conditions of this provision concur; that is to say, there was a new trial in the circuit court, and the plaintiff was the "successful party," according to the decisions of this court in Smithbeck v. Larson, 18 Wis. 183, and Norwegian Church v. Thorsen, 21 Wis. 35. Consequently the plaintiff was entitled to full costs.

But the same counsel further contends that the provisions above cited are qualified or controlled by the provisions of subdivision 4, § 54, which enacts that when, in an action for assault and battery, the plaintiff recovers less than $50 damages, he shall recover no more costs than damages. See Sherrible v. Janish, 13 Wis. 615, and Fitzen v. McCannon, 14 Wis. 63. And he says this specific provision was intended to regulate the matter of costs in this class of cases, and applies to every action for an assault and battery tried in the circuit court, whether originally commenced in that court or removed there by appeal; that, unless this construction prevails, a party may bring such an action before a justice, then, on appeal to the circuit court, may increase his claim, exceeding the jurisdiction of the justice, with no danger of losing any of his costs, though he recover less than $50 damages. It is possible that such a consequence might follow from the various provisions of the statute as we construe them. But this defect, if not wholly, is to some extent remedied by section 2925 of the new Revision. But, under the statute as it stood when this cause was tried, the successful party in an action for a personal trespass, which had been commenced before a justice, and removed by appeal to the circuit court, where there was a new trial, recovered full costs. This, we think, is the proper construction of the statute; therefore, subdivision 4, § 54, has no application to this case.

The judgment of the circuit court is affirmed.

GEORGE BUDGE, Appellant, vs. THOMAS S. MOTT and another,

Respondent.

Filed November 28, 1879.

A master of a vessel cannot be party to a proceeding for the arrest of such vessel, and at the same time be entitled to wages as such master during such arrest; his act is, at the option of the owners, a termination of his employment. A party knowingly permitting his name to be used as plaintiff in an action cannot deny that he is a party in fact.-[ED.

Appeal from Milwaukee circuit court.

H. H. & G. C. Markham and E. P. Smith, for appellant.

Finches, Lynde & Miller, for respondent.

RYAN, C. J. The position of master of a ship is one of great trust, power and responsibility. In all emergencies, physical and moral, it is his peremptory duty to protect, as far as it may lawfully be done, his vessel and the interest of his owners in it. Indeed, his power and duty go so far that he may, in some emergencies, pledge his vessel by bottomry, to secure or relieve her from arrest. In case of arrest, or threatened arrest, it is his duty to do all that he may properly do, on behalf of the vessel and her owners, to free her from arrest, so that she may prosecute her voyage or employment; and in the performance of these duties the master is held to a high degree of care and integrity. Abbott's Shipping, 167; 1 Parson's Shipping, 140; 2 Parson's Shipping, 3; The Aurora, 1 Wheat. 96; Smith v. Gould, 1 Moore Pr. C. 21; The Gauntlet, 3 W. Robinson, 82.

Here the vessel, of which the appellant was master, was arrested by process in admiralty, issued at the suit of himself and another, and her voyage or employment interrupted until she was released by her owners. It may be that the master and his co-plaintiff in admiralty had a valid claim against the vessel or her owners. It may be that the master was not designedly guilty of bad faith to his owners by suffering his name to be used in the proceeding to arrest the vessel. Of that it is unnecessary to express an opinion. But it is quite certain that, rightfully or wrongfully, the appellant took a course inconsistent with his employment and duties as master, stopping the employment of the vessel with which he was charged, and terminating his own employment as master at the election of his owners. He could not by his own act, in his own behalf, stop the navigation of the vessel, and at the same time be entitled to wages for navigating her. As far as

it lay with him he rescinded his contract of employment as master by putting it out of his own power to perform it.

It is idle to pretend that the appellant was not a party to the proceeding in admiralty against the vessel because he professed disapproval of the suit. The suit was brought in his name and his co-plaintiff's, and being a party of record, he cannot be heard to say that he was not a party in fact. He was one of the libellants of his own vessel in admiralty, as he must have been fully advised, if he had no other notice, by the monition served upon him, and he did nothing towards dismissing the suit or releasing the vessel. Whatever differences of opinion or of policy in the matter there may have been between himself and his co-plaintiff, his name was used as a plaintiff of record. He suffered his name to be so used, and he was responsible for the arrest and detention of his vessel in the suit in admiralty.

The view of the case taken by the learned judge of the court below was quite right, and the judgment below is

affirmed.

NETTIE S. HOPKINS, Administratrix, etc., Respondent, vs. WINTHROP W. GILMAN, Appellant.

1. A lease of an unimproved city lot provided that, in case the lessee should make improvements on the premises during the term, it should be optional with the lessor either to have such improvements appraised by arbitators at the end of the term, "without regard to the situation or value of the premises leased," and pay the lessee such value, or to have the leased premises appraised in like manner, "without regard to the improve. ments," and renew the lease, etc. The lessee, during his term, built a dwelling-house on the lot, and made other valuable improvements suitable for a residence. Held, (1) that, upon the lessor's refusal to renew, the value of all such improvements should be allowed to the lessee, and not merely of those which, as betweeu landlord and tenant, might be renewed by the latter; (2) that the present actual value of such improvements, treating the property as a residence, is the value to be allowed.

2. The judgment of this court on a former appeal herein was remitted in April, 1868, directing the court below to ascertain the value of the improvements placed on the lot by the plaintiff lessee, and that he be permitted to retain possession until such value was paid to him by the lessor. Hopkins v. Gilman, 22 Wis. 476. The plaintiff remained in possession and the cause was not again brought to a hearing until 1878. Held, that in stating an account between the parties, to determine what sum must be paid by the defendant lessor to entitle him to possession, plaintiff must be regarded as a tenant equitably entitled to hold over, and actually holding over, and must be charged with rent (without interest) and all outstanding taxes, (as provided in the lease,) and is not to be allowed interest on the value of his improvements for any period whatever.

3. In 1876 the defendant lessor filed a supplemental answer, alleging,

among other things, that the plaintiff lessee, being in possession, has failed to pay the taxes and assessments for 1869 and subsequent years; that an undivided portion of the lot had consequently been sold for delinquent taxes, and a number of tax certificates were outstanding; and that X. and Y., (the lessee's brothers,) for the purpose of creating a cloud upon the title, and to hinder defendant in the enforcement of his rights, had procured and recorded two tax deeds, which they held for the benefit of the lessee; and part of the relief asked was that the lessee procure from X. and Y. deeds of release of.their interest under said tax deeds, and that such tax deeds be adjudged fraudulent and void as against said lessor. Held, that there was no error in permitting the supplemental answer to be filed, and X. and Y. brought in as parties defendant, especially as they answered the supplemental answer as a cross-bill, without objecting to the order.

4. X. and Y. appearing to have taken their tax deeds for the benefit of the plaintiff lessee, the judgment as to them should declare such deeds cancelled.-[STATE REP.

Appeal from Milwaukee circuit court.

Dixon & Noyes and D. G. Hooker, for respondent.

Joshua Stark, Johnson & Reitbrock, J. J. Orton and Carpenter & Smiths, for appellant.

COLE, J. It could hardly have been anticipated, when this case was here on a former appeal, (22 Wis. 454,) that a decade would elapse before the cause would be brought to a hearing on the issues sent down from this court for trial; and, as both parties are more or less responsible for this delay, their obligations and duties in the meantime cannot be ignored in the final decision of the cause. The only relief which this court thought could be consistently granted on the former appeal was to send the case back with directions to the circuit court to ascertain the value of the improvements placed upon the property by the plaintiff or his assignor, and to allow the plaintiff to retain possession of the premises until he was paid for such improvements.

This was as far as the court was called upon to go at that time. In conformity with this direction the cause came on for hearing in June, 1878, and considerable testimony was taken on both sides, bearing upon the question of the value of the improvements placed upon the lot under the lease. At the outset here a question is raised as to the proper basis of estimating the improvements. One of the counsel for defendant claims that under the covenants of the lease the lessor was bound to pay only for such improvements as between landlord and tenant could be removed or were capable of removal. This position is founded upon the clause in the lease which gives the lessor a lien for the rents and taxes on all the improvements which should be made upon the premises, and authorizes the lessor, in case of default on the part

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