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to inculcate that respect for the highest judicial tribunal of the country to which it is entitled by its position, its history and the purity, abilities and learning of the judges. This may be done, and ample room will be left for free and enlightened criticism of its decisions. It is a reasonable expectation that the law will be finally settled in such a way as to reconcile complete protection of corporate rights and vested interests with the unimpaired exercise of the soverign powers of the State. The majority of the court regard that as even now ac

a person who was under age without due publication of banns, penal servitude for life on a boy for attempting to extort money by threats of false accusation, and eighteen months' imprisonment of the young man called Rowden, or Rawden, for falsely publishing in a newspaper that he was engaged to marry a young lady of high rank, are really a group of sentences which must excite amazement in the ordinary mind. Indeed, when we compare them with the punishments often awarded by judges for offenses complicated with violence, they would appear to be eccentric, and passed with a view to in-complished, but as to this there is a wide difference vite the interference of the home secretary." Down in Texas, as we may have remarked before, they sometimes punish a man more for stealing a mule than for killing a man; but then perhaps the mule is worth the more. All this matter of sentences depends on the magistrate's digestion. If he makes a good breakfast, and his wife has not nagged him, the criminals get the benefit. Sometimes we are inclined to believe in the practice of letting the jury assess the punishment. It may be that one man is as little fit to decide continually on the measure of punishment as he is to pass upon disputed questions of fact.

of opinion. One of the judges, who has most strenuously resisted the doctrine that the taxing power can be restricted by charter-contract, predicts that it must be finally abandoned. Whether this can be done without overthrowing the whole system of decisions is doubtful; because, as we have seen, the taxation cases are those wherein the principle that a charter is a contract has been most frequently and explicitly affirmed. If the principal case is not reversed, still less is it probable that the remedy suggested by the most earnest of its opponents, an amendment of the Federal Constitution, will be attained. It would be resisted by all the power of corporations, and such a measure could not be enacted unless by practical unanimity of all public interests, and general concurrence of professional and public sentiment. If the aims, the ambitious, the independence of corporations should continue to be aggressive, and become dangerous to the public welfare, remedies must and will be found."

NOTES OF CASES.

The Dartmouth College Case is the subject of a thoughtful essay by Mr. William P. Wells, of Detroit, presented at the last meeting of the American Bar Association, and now printed in pamphlet. Mr. Wells starts out with contrasting the opinion of Chancellor Kent, written in 1826, with that of Judge Cooley, written fifty years later, which go far to warrant his own deduction that the decision was originally well founded in principle, but that the march of corporation legislation and adjudication has left it practically out of sight, or at least greatly diminished in the perspective. Mr. Wellsing views in regard to the construction of ballots, stands by the dissenting opinions in the Railroad Commission Cases, 116 U. S. 307. He concludes: "It is idle for the profession to ignore the serious charge that by reason of the decision in the Dartmouth College case corporations possess almost sovereign powers, and that the doctrine of an inviolable charter-contract has suspended, in their favor, the exercise of the sovereign powers of the State. This charge must be met according to its gravity; it must be considered whether the need of restraint upon corporations is increasing or diminishing, and where the remedies for corporate abuses and aggression are to be found, if required. But this inquiry will not be prosecuted, either in the legal profession or in the judicial tribunals, in any spirit of undiscriminating enmity to corporations. The incalculable benefits they have conferred upon the country, the great work they have performed in its progress and development, are manifest. The legal profession can do much to influence and guide public opinion; to show that the demand for the reversal of the Dartmouth College case is impracticable; to maintain the integrity and permanence of principles which are, to say the least, settled law;

N People v. M' Neal, Michigan Supreme Court, Oct. 21, 1886, Morse, J., expressed the followin which we heartily concur: "I cannot let this occasion pass without expressing my dissent from the doctrine laid down by this court in People v. Tisdale, 1 Doug. 59, and since reluctantly followed in People v. Higgins, 3 Mich. 433, and People v. Cicott, 16 id. 283, that a ballot containing the initials only of the given names of a candidate cannot be counted for him. It is at variance with the rule in almost all the States of the Union, and there is no sense or justice in it. When James A. Dyer and one or two other persons of entirely different names are running for the same office, every one at once knows that a ballot cast for J. A. Dyer is intended, without doubt, for James A. Dyer. If so, why not count it as the voter meant it should be counted? Under the rule thus established in 1 Doug., many men have held and enjoyed the honors and profits of offices to which they were never elected by the people, and to which they and everybody else knew they were not elected; and men who were really elected have not been permitted to qualify and enter upon the duties which the majority of the electors intended they should perform. In the case of People v. Cicott, Judges Christiancy and Graves

both adhered to the decision in People v. Tisdale, against their own opinion of its justice or soundness, because they did not think it wise to disturb | the precedent so long established. Judge Cooley expressed himself strongly against the reason and justice of the rule, and regretted that the other members of the court would not join with him in overturning it. Most men are as well, if not better, known by their initials than by their full names. The signature of any officer to any judicial document, by the initial letters of the first or given names, is just as valid and effectual in this State as the full name. There is no sound reason why a vote for J. A. Dyer should not be counted for James A. Dyer, in a case where no other J. A. Dyer is a candidate, or living within the district covered by the office. The rule established in this State has but one effect, to-wit, to deprive, in many cases, the rightfully elected officers from taking possession of the office to which the electors have chosen him, thus defeating the will of the people. Believing in the right of the people, at all times and in all places, to have their ballots counted fairly as cast, in my opinion, the ballot, wherever the name Charles R. Stewart, the prohibition candidate for supervisor, was erased, and the name Byron McNeal written opposite the words 'for supervisor,' should have been counted for McNeal. The erasure of the words 'for supervisor' upon this ballot was evidently a mistake, and it is plain upon the face of the ballot itself that the voter intended to vote for McNeal for supervisor. No one having common sense and intelligence enough to perform the duties of an inspector of elections could fail to know, and be satisfied, by a mere inspection of the ballot, that the man who deposited it in the box meant to vote for McNeal for supervisor. It needed no extrinsic evidence to ascertain the intention of the voter, but under the technical ruling of the Circuit judge, influenced probably by the decisions in People v. Tisdale, the intent of the voter, which is as clear as noonday, is defeated, and he is deprived of the right of suffrage. It is also clearly apparent that the writing which the judge read Samuel Toley was meant for Samuel Tobey. Every inspector knew, when the votes were counted, that there was no man by the name of Samuel Toley in the township of Byron, and that the vote, if not really written Samuel Tobey, was certainly intended to be so written. The Circuit judge, as well as all the members of this court, know for whom the ballot was intended, and it is simply a perversion of justice to be scanning with the naked eye, or exploring with a microscope, to find the lack of a loop in a letter to defeat the known will of an elector. Common sense applied to the counting of votes is better than the technical theories and distinctions laid down in some of the law books. If it had not been for this decision in People v. Tisdale, if no law had been resorted to or known by the inspectors, but the plain, honest men constituting the board had followed the plain dictates of their own good sense and justice, this ballot would have been counted for Sam

uel Tobey, and the will of the voter been expressed. As it is, he has also been deprived of his vote for supervisor. It happens in this case that the disenfranchisement of two electors does not alter the result, although both are deprived of their votes for supervisor, and each of the two candidates lose a vote. But there are plenty of cases where the loss to the elector of the franchise is also a loss to another of an office, which in right and justice, he ought to hold. In People v. Kennedy, 37 Mich. 67, this court took a step in the right direction in declaring that a ballot cast for John Jochim was presumptively intended for John W. Jochim, when it did not appear that there were two persons named John Jochim in Ishpeming. Applying this newer and better doctrine to the case at bar, and it not appearing that there was a person by the name of Samuel Toley, and it expressly appearing there was not in Byron, the vote should have been counted for Samuel Tobey. When we all know, from the ballot itself, that it was intended for Samuel Tobey, no amount of theorizing that it might some time happen that there would be two men of the same initials, who might be running for the same office, and yet have different full names, or that there might some time be a Samuel Toley pitted against a Samuel Tobey for office, can excuse or justify the plain violation of the spirit of the law, and the deprivation of the right of the elector to have his ballot counted as he intended, when that intention is clear beyond cavil. A bad precedent should not always be followed."

In City of Louisville v. Weible, Kentucky Court of Appeals, Sept. 30, 1886, it was held that where a party contracts with a city for the exclusive right to remove the carcasses of all dead animals, and to use its public streets for this purpose, the law will protect him in his monopoly, and the work cannot be engaged in by others as a general business enterprise. The court said: "It is contended in behalf of appellant that as the removal of dead animal carcasses from the city, and the disposal of them, is one of the police powers of the city necessary to be exercised at all times to preserve the public health, comfort and cleanliness of the city, she has no legal power to limit or surrender its control by contract over that subject, or kindred ones, beyond her recall at pleasure. The State has never surrendered its power-sometimes called its 'police power,' but more properly its sovereign power

by which it controls, through its municipalities and other agencies, within certain limits, everything within its territorial limits relating to the welfare of its people. In the exercise of that power it creates and controls educational and charitable institutions, and provides for the establishment of public highways, canals, wharves, ferries, and also the public health, public morals, and public safety, and almost numberless other things. These pow

ers she has, and exercises in absolute right, except as limited by the Federal Constitution, or by her

carry them out under his contract, provided however such new regulations were not inconsistent with his essentiel rights under the contract, or if it became necessary to recall the contract in toto, in order to prevent a nuisance arising from carcasses in the city, then the city had the right to recall it. Those powers are inherent in the city, upon the fundamental principle of necessity, and consequent duty of protecting the public health of its citizens, to which it is the duty of its employees to yield. But to allow the city to disregard or recall its contract with its contractors, or employees engaged to service by fixed terms, upon its mere caprice, or to

own fundamental law. She may also, in the exercise of her powers, grant 'exclusive separate public privileges in consideration of public services.' She may also grant special or private privileges to certain individuals, provided the rights of others are not affected by it. She has the right to confer upon cities and towns, as integral parts of the State, the exercise of such of these powers as may be deemed necessary, prudent, or expedient for their local welfare and comfort. She may also grant many exclusive privileges to persons and corporations, also relinquish many of her powers. She may also recall them at pleasure, except when the person to whom the grant is made proposes to render again a pecuniary advantage, would be the exercise public service in consideration thereof; or when, in case of the grant of a special private privilege, the person to whom the grant is made proposes, in consideration thereof, to engage in some enterprise that he would not or could not have otherwise done then such grants or privileges, public and private, become contracts for a sufficient consideration, and cannot be impaired by any subsequent act of the State. The power to protect, through her cities

of an arbitrary power that does not exist in the land."

LANDLORD AND TENANT-DEFECT IN PREMISES
-LIABILITY OF LANDLORD TO REPAIR.

WISCONSIN SUPREME COURT.
SEPTEMBER 21, 1886.

COLE V. MCKEY.*

agreement on the part of the landlord to repair, he cannot be held liable to the tenant, or any one rightfully occupying under him, for an injury caused by the leased premises getting out of repair during the term, unless it be by reason of his own wrongful act, or failure to perform a known duty. This principle extends to cases where premises are leased to several tenants, and the injury has been caused by a defect in parts used by all of them in common, like halls and stairways

Where a landlord has been guilty of some wrongful act or breach of positive duty in not repairing leased premises, he is not liable for an injury caused thereby to one occupying the premises without rightful authority, as to a subtenant in possession contrary to the terms of the orig. inal lease.

A

PPEAL from Circuit Court, Rock county.

and towns, and other public agencies, the public In the absence of any secret defect, deceit, warranty, or health, the public morals, and the public safety, cannot be relinquished or surrendered, for the government is bottomed upon the fundamental principles, promotion of the peace, safety, happiness and sccurity of its citizens. Therefore any surrender of its power to protect the public health, the public morals, the public peace, the public safety of the citizen, would violate this fundamental principle, and tend to revolution and anarchy. The power therefore cannot be surrendered. The State however, and its municipalities intrusted with the execution of this power, may provide the means of protecting the public health; it is its duty to do so. Any means may be adopted that will effect that end; such as employing competent and trusty persons to take the matter in charge, under the supervision and control of the State or city. Here the appellant did not surrender her right to the control of the public health of the city in the removal of dead animal carcasses, etc. She exercised that right, as her admissions show, in an efficient and provident manner. She contracted with appellee, for a sufficient consideration, that he, for the period of five years, should have the exclusive privilege of performing that duty for her, and on her behalf. This he did faithfully and efficiently. There existed no cause of complaint on the part of the city. Appellee kept the city promptly cleared of carcasses, and no nuisance was allowed to occur from them. But the city, without just cause, or any cause of complaint, capriciously tired of its contract, and proposed to break it. This she could not do. If appellee had failed to comply with his contract then the city would have the right, by ordinance, to recall it, or if it became necessary, in the exercise of the reasonable judgment of the city, to establish new regulations, for the purpose of more effectively preventing a nuisance arising from them, she had the right to require the appellee to

July 15, 1884, in pursuance of an oral agreement made about May 1, 1884, the defendant, in behalf of himself and others, constituting the McKey heirs, but in his own name, and in writing, and upon the conditions, conventions, covenants, provisos, and reservations therein contained, leased to the Beloit City Guards, by S., B. and A., the hall known as Armory Hall, in the third story, and three rooms in the second story fronting on State street, in the McKey block, situated on the corner of State and Broad streets, in the city of Beloit, for the term of two years from May 1, 1884, at the rate of $175 per annum, payable monthly in advance, "to be used for the usual purpose of a drill-room and dancing-hall." The said Guards, in and by said lease, in effect covenanted and agreed to "pay rent in the manner aforesaid, and deliver up the said premises, together with the appurtenances, thereunto belonging," peaceably and quietly, at the expiration of said term, in as good condition and repair as the same were then, or might be put into by the lessor, inevitable accidents, reasonable use, and natural wear and decay excepted; and further, that they would not do or suffer any waste in said premises; that they would use the same for the above purpose

only; that they would not underlet the same, or any part thereof; that they would not assign said lease, or any interest therein; that they would observe special *S. C., 29 N. W. Rep'r, 279.

care and caution to preserve the premises from damage or injury by fire or otherwise. There were also a number of other rooms in the building occupied for stores and other purposes; and all were, on or prior to November 22, 1884, in the possession of tenants. The only means of access into said Armory Hall was through a double door, on the south side of said building, opening immediately into a stairway leading to the second floor, where there was a hall-way, and from thence by another stairway, leading to the third floor and thence into Armory Hall; and said stairways and halls leading to said Armory Hall were for the common use and convenience of said Guards and other tenants occupying said building, and such other persons as had lawful right to enter said building.

It appears from the evidence that about November 1, 1884, the plaintiff went to Beloit to visit the family of her son-in-law, W. D. Wansor, living at that place. Soon after November 1, 1884, Wansor, without the knowledge or consent of the defendant, or any of the owners of the block, rented Armory Hall of the City Guards for the purposes of a skating-rink. He advertised it to be opened as such on the evening of November 14, 1884. It was opened as a skating-rink by Wansor. The plaintiff, with her daughter, Mrs. Wansor, attended such skating-rink twice before November 22, 1884, and on one occasion asssisted her son-inlaw in running the rink. She took tickets at the door. Tickets were purchased of her and paid for at the door. One evening she acted as floor manager of the rink for her son-in-law, and once went and paid the rent for him. After that, and on the evening of November 22, 1884, the plaintiff and her daughter, Mrs. Wansor, started to go to the entertainment at the skating-rink, as she had before. It was dark, rainy, and the wind blew hard. There was no light at the foot of the stairs, and the hallway was dark. As she went in, the right-hand part of the door of the entrauce was shut, and the left-hand part of the door open; and as she went through the part of the door that was open, and stepped to the right, just at the right of the part of the door that was shut a little from the edge of the door, she stepped into a hole in the floor, and went down into it with one leg up as far as she could fall, near to the groin, and wrenched and badly injured her leg. The hole was formed by the floor breaking through, and had been there for more than three weeks, and during that time was known to be there by members of the Guards. It was about six inches wide, and eight or ten inches long. At the time of the agreement to lease, the place where the hole was had become rather worn, but otherwise in good condition. Armory Hall had been used as a rink in the winter of 1881-82 and 1882-83. In August or September, 1884, the Presbyterian Society gave a kind of fair or entertainment in the hall. Prior to May 1, 1884, the Guards had talked with the defendant about improving and repairing the hall, which he refused to do, because they would not pay more rent than named in the lease. The undisputed evidence shows that neither the defendant, nor any of the owners of the block lived in Beloit, or had any knowledge or information as to the existence of the hole in question until after the plaintiff's injury, November 22, 1884. The rents were collected through the bank. At the close of the testimony, of which the above statement is the substance, the defendant moved for a nonsuit, which was granted; and from the judgment entered thereon the plaintiff brings this appeal. Buckley & Wickhem and C. M. & F. M. Scanlan, for appellant.

Winans & Hyzer, for respondent.

CASSODAY, J. The case at bar is clearly distinguishable from that class of cases cited where the injury is

to a traveller upon a public highway or walk, and the defect complained of is either in, or in close proximity to such highway or walk; as in Inhabitants of Milford v. Holbrook, 9 Allen, 17; Readman v. Conway, 126 Mass. 374; Brown v. Weaver, 5 Atl. Rep. 32. The rule seems to be well settled, that in the absence of any secret defect or deceit or warranty or agreement on the part of the landlord to repair, the tenant takes the leased premises in the condition they happen to be in at the time of the leasing, and that in such case the landlord is not liable to the tenant for an injury caused by the premises being out of repair during that term. Hart v. Windsor, 12 Mees. & W. 68; Keates v. Earl of Cadogan, 70 E. C. L. 591; Doupe v. Genin, 45 N. Y. 119; McAlpin v. Powell, 70 id. 126; Edwards v. N. Y. & H. R. R. Co., 98 id. 245; Dutton v. Gerrish, 9 Cush. 89; Woods v. Naumkeug S. C. Co., 134 Mass. 357; S. C., 45 Am. Rep. 344; Bowe v. Hunking, 135 Mass. 380; S. C., 46 Am. Rep. 471; Brewster v. De Fremery, 33 Cal. 341; Krueger v. Ferrant, 29 Minn. 385; S. C., 13 N. W. Rep. 158; Humphrey v. Wait, 22 U. C. C. P. 580; Wood Landl. & Ten., § 382. So it seems that the rightful subtenant, servant, employee, or even customer of the lessee, is under the same restriction, because he enters under the same title, and not by any invitation, express or implied, from the owner, and hence assumes the same risk. Taylor Landl. & Ten., §175; Jaffe v. Harteau, 56 N. Y. 398; Ryan v. Wilson, 87 id. 471.

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In the case before us there is no claim of any secret defect, deceit, warranty, or agreement on the part of the defendant to repair. On the contrary, it was expressly agreed upon the part of the tenant to "deliver up the said premises, together with the appurtenances thereunto belonging, * * peaceably and quietly, at the expiration of said term (of two years' time), in as good condition and repair as the same were at the time of making the lease. Undoubtedly the lease gave to the lessees, and those rightfully using any part of the leased premises under them, the right of passage through and up the hallways and stairways mentioned, as there was no other means of access. Pomfret v. Ricroft, 1 Saund. 321; Doyle v. Lord, 64 N. Y. 432; Royce v. Guggenheim, 106 Mass. 201.

But it is claimed that notwithstanding such right of passage, yet that as the defendant had other tenants in the same building, having a like right of passage, such hallways and stairways must be deemed to have remained in the possession and control of the defendant, and hence that he was responsible for injury by reason of any want of repair therein.

It has been held that where the landlord only rented a portion of the premises, and retained the possession, occupancy, and control of the balance, he was liable to one injured, while rightfully passing over the portion in his possession, by reason of a defect therein. Camp v. Wood, 76 N. Y. 92; Edwards v. N. Y. & H. R. R. Co., 98 id. 255. This rule has been extended to a passage-way over staircases and entries used by the lessee "in common with the landlord and the other tenants" in the same building. Looney v. McLean, 129 Mass. 35.

In commenting upon that case, the same court said: "It may be that there is an obligation on the owner to keep the ways (staircases and passage-ways) in such a condition that they can be safely used by the tenants; but this obligation has never been extended so as to require a construction of the ways on a different plan, if the ways, as they existed when the premises were hired, were not altogether convenient or safe by reason of some fault in the original plan which was apparent;" and so it was accordingly held that a landlord letting several tenements in the same building, with a common exterior flight of entrance steps, without a railing, was not liable to a tenant injured by falling on ice accumulated on the steps, although they

were so made, and of such material, as to collect ice. Woods v. Naumkeag S. C. Co., supra.

In a still later case of Bowe v. Hunking, supra, the same court held that a landlord was "not liable to his tenant for a personal injury by reason of a defect in a stairway in the tenement caused by a previous tenant; there having been an opportunity to examine the premises at the time of hiring, and no warranty of fitness, and no knowledge on the landlord's part of any unsafeness." The defect in the staircase there complained of was that "the tread of the second stair had been sawed about four inches from each end, across to within about an inch of the back side of it, and length- | wise cut out about an inch from and parallel to the back side of the tread, and was, at the time of the accident, unsupported.'

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Looney v. McLean, supra, is quite similar in its facts to the Scotch case cited, of McMartin v. Hannay, 10 Sel. Cas. (3d ser.) 411, in which Lord Benholme made this distinction: "The landlord undertook to be answerable for the outside stair. He actually kept a man in his employment for the purpose of looking after it, and other similar stairs in various tenements. This relieves my miud of considerable doubts, for often the landlord is not near the place where the property is situated, and knows nothing about the dangerous condition into which it may have got. In such cases there may be a considerable room for arguing that the tenant may have incurred certain responsibility."

In the recent case of Ivay v. Hedges, 9 Q. B. Div. 80, the defendant let out his house in apartments to several tenants, with the privilege of using the roof, which was flat, having an iron rail at the outer edge, for drying their linen. The plaintiff, one of the tenants, went upon the roof to remove some linen, when his foot slipped, and the rail being out of repair to the knowledge of the landlord, he fell, and was injured. The nonsuit of the plaintiff was sustained on the ground "that there was no duty on the part of the landlord to protect such a place, and that if the lodgers chose to use the roof for the purpose stated, they must take it cum onere."

In Humphrey v. Wait, supra, the defendant leased to the plaintiff a room in his house. The only mode of access to it, and the other rooms on the same story, was by a certain passage, in which there was an uncovered stovepipe hole, into which the plaintiff, while rightfully passing, slipped and was injured; and it was held that in the absence of an express contract, the defendant was under no legal obligation to keep the premises in repair, and hence he was not liable. It is there said by the chief justice on the part of the court: "If a man rent the upper story of a house, with the staircase the only means of approach-in a ruinous and unsafe state, I see no implied obligation on the landlord to uphold it, or to answer in damages for an injury resulting from its insecure state. It would be a singular state of the law if the landlord would not De answerable if he demised the stairway with the upper story, and would be answerable if he only gave a right to use it as an approach to the part of the house actually demised."

This language has received the express sanction of the Supreme Court of Indiana. Purcell v. English, 86 Ind. 34. In that case it was held that "where a stairway, connected with apartments hired in a tenement house occupied by several tenants, is rendered unsafe by temporary causes, such as the accumulation of snow and ico. the landlord is not liable to the tenant who uses such a stairway with full knowledge of its dangerous condition, unless there is a contract on the part of the landlord to keep the premises in repair and fit for safe use." In that case there is a discriminating and well-written opinion by Elliott, J., throwing

doubts upon the soundness of Looney v. McLean, supra, and claiming that it stands alone. It is there said that "the duty of the tenant to keep in safe condition, for his own use, the demised premises, extends to all the appurtenances connected therewith, and this includes steps, stairways, and other approaches. Whatever passes to the tenant under the lease is, for the term designated, under his control and in his possession; "citing Pomfret v. Ricroft, supra. See also Howard v. Doolittle, 3 Duer, 464; Corey v. Mann, 14 How. Pr. 163; Kaiser v. Hirth, 46 id. 161; Loupe v. Wood, 51 Cal. 586; Krueger v. Ferrant, supra; Platt v. Farney, 16 Bradw. 216.

It is unnecessary here to determine the apparent conflict between the Massachusetts case mentioned and other cases cited; since it is pretty clear from the authorities, that in the absence of any secret defect, deceit, warranty, or agreement on the part of the landlord to repair, he cannot be held liable to the tenant, or any one rightfully occupying under him, for an injury caused by the premises getting out of repair during the term, unless it be by reason of his own wrongful act, or failure to perform a known duty. Thus in Carstairs v. Taylor, L. R., 6 Exch. 222, where the landlord rented the lower part of the house, and retained possession of the upper part, it was said on the part of the court: "The defendant can only be liable if he was guilty of negligence."

The defendant here testified that he did not know of the defect in the entry-way until after the injury; and the circumstances preclude any presumption of such knowledge. It would be unwarranted to find, upon such facts, that he was guilty of negligence. But the case is very much stronger for the defendant than any of the cases cited. Wansor was not occupying the ball as a skating-rink by any rightful authority from the defendant, or any of the owners of the building. On the contrary, the letting to Wansor by the Guards was expressly prohibited by the written lease. The occupancy by Wansor, and those under him, or upon his invitation for such a purpose, was wrongful, as against the defendant and the other owners. The plaintiff at the time of the injury was so occupying This being so, neither the defendant, nor any of such owners, under any of the authorities, owed her the duty of security in passage while she was in the act of invading their rights. To constitute actionable negligence, the defendant must be guilty of some wrongful act or breach of positive duty to the plaintiff. This is elementary, and has often been recognized by this court. Cahill v. Layton, 57 Wis. 600; S. C., 16 N. W. Rep. 1; Griswold v. Chicago & N. W. Ry. Co., 64 Wis. 652; S. C., 26 N. W. Rep. 101; Purcel v. English, supra; Ryan v. Wilson, supra. There is no claim of any such wrongful act. It is very clear that the defendant owed to the plaintiff no such duty.

The judgment of the Circuit Court is affirmed.

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