the policies were for mutual protection. The contract was joint on the part of the plaintiff and her husband, and not several, and the demand was single, and should not have been split. It is said that the nonjoinder of the husband's representative should have been pleaded in abatement; and, again, that under rule 7 it should have been specially pleaded that this was a joint contract. This is not an affirmative defense. It was incumbent on the plaintiff to prove a several contract, and, failing to do so, her action fails, because she does not prove a contract to pay to her one-fourth of the sum realized, but a promise to pay to herself and another onehalf. Monaghan v. Ins. Co., 53 Mich. 253, 18 N. W. 797; Howe v. Hyde, 88 Mich. 93, 50 N. W. 102; Fowles v. Hayden (Mich.) 89 N. W. 571; 1 Chitty on Pleading.

We are constrained to reverse the judgment, and direct a new trial. The other Justices concurred.

WILLIAMS . WILLIAMS et al.

(Supreme Court of Wisconsin. Jan. 13, 1903.) MORTGAGE FORECLOSURE-COMPLAINT - ALLEGATION OF PAYMENT OF TAXES-SUFFICIENCY-DEPOSIT IN COURT-SUFFICIENCYDISMISSAL OF SUIT-COSTS-DISCRETION OF COURT.

1. In a suit to foreclose, defendants showed by affidavits that, on the day before suit brought, they tendered the amount due to the apparent owner, who refused to receive it, or any sum whatever, in payment thereof, and claimed he could not spare the time to look up the mortgage; that they notified such owner that the money was ready for him at any time; that, on the day after the suit was commenced, they deposited in court the amount due; that the owner's refusal to accept the money was to harass defendants. Plaintiff denied any purpose to harass defendants, and denied the formal tender of the amount due, but admitted an offer to pay the amount substantially due, and the making of no claim that the amount offered was insufficient, and did not deny that the tender was made to the owner of the mortgage. Held, that the court was justified in dismissing the suit.

2. The dismissal of the suit without costs to plaintiff was within the discretion of the court; Rev. St. 1808, § 2018, providing that, in all equitable actions, costs may be allowed, or not, in the discretion of the court.

On Rehearing.

3. Where the complaint in a suit to foreclose a mortgage did not allege that plaintiff had paid any taxes on the mortgaged premises, but merely averred that defendant had neglected to pay them, and prayed merely for the recovery of the principal, interest, and costs, plaintiff would not be entitled to judgment for any taxes paid by him.

4. Plaintiff's attorney, in a letter written to the mortgagor after the latter had deposited in court the amount due on the mortgage sought to be foreclosed, stated the amount due, together with the clerk's fees, disbursements for witnesses, etc., but made no claim that plaintiff had paid any taxes. The affidavits filed on the hearing of the motion to dismiss the suit, because the mortgagor had deposited in court the amount

due, did not show that plaintiff had paid any taxes. Held, that the mortgagor's deposit in court was not insufficient for failing to include therein any sum for taxes claimed to have been paid by plaintiff.

Appeal from circuit court, Milwaukee county; Lawrence W. Halsey, Judge.

Suit by Mary R. Williams against James E. Williams and others. From an order dismissing the suit, plaintiff appeals. Affirmed.

On January 29, 1902, the plaintiff commenced this action to foreclose a mortgage on which she alleged there was due $150, and interest from January 5, 1897, at 6 per cent. On the following day, January 30th, the defendant Margaret F. Schutz, the owner of the equity of redemption in the mortgaged premises, paid into court the sum of $196 for the use of the plaintiff, to satisfy the mortgage debt, and gave notice of a motion for an order that the action be dismissed, without costs; that the moneys deposited be applied in satisfaction of the mortgage; and that if, in the opinion of the court, any costs ought to be recovered by the plaintiff, the amount thereof should be fixed. This motion was supported by affidavit to the effect that on January 28th the mortgage was recorded in the name of, and did in fact belong to, Charles E. Estabrook, plaintiff's attorney; that on that day the defendant's attorney offered to pay the same, and, upon certain excuses of said Estabrook, becoming convinced that the latter was only attempting to evade payment, he tendered in satisfaction of said mortgage the full amount thereof, with interest, which said Estabrook absolutely refused to receive, at the same time expressly refusing to receive any sum whatever in payment thereof, whereupon the money so tendered was taken away by defendant's attorney, he notifying said Estabrook that it was ready for him at any time. The affidavit asserted that such refusal was a part of a policy to harass and distress the defendants, and that the immediate commencement of this action on the following day was in pursuance of a like purpose, and to impose unnecessary costs and expenses. Response to such affidavit was made by denying any purpose of oppression or harassment, and also denying the formal tender of the amount of the mortgage, but admitting that the defendant's attorney did, on the day named, offer to pay an amount substantially equal to the principal and interest of the mortgage, and making no claim that said amount was insufficient; nor did said affidavits deny that on said 28th day of January the note and mortgage sued upon belonged to said Estabrook. Thereupon the court entered an order, based upon the record and the affidavits filed, and admissions and statements of counsel made in open court, reciting the fact of said tender of January 28th, the deposit of the $196 on January 30th, and that it appeared that the action was commenced by the plaintiff for the purpose of harassing and annoying the defendants, and for the purpose of making costs and expenses, and for no other purpose, and ordered that the $196 be paid to the plaintiff in full of principal and interest on the mortgage; that the action "be, and the same is hereby, dismissed, without costs to either party"; and that the mortgage "is hereby fully satisfied of record," -from which order the plaintiff brings this appeal.

Charles E. Estabrook, for appellant. Joseph B. Doe and John H. Paul, for respondents.

DODGE, J. (after stating the facts). Appellant attacks the procedure culminating in the order appealed from as if respondents had attempted by affidavit to establish the fact of tender as a defense, and sought a judgment of dismissal on the merits. Were such the situation presented, there could be no doubt that the proceeding would be improper and erroneous. A defendant cannot set up a mere defense by affidavit, and ask summary decision thereon. He must join issue, either by demurrer or answer,-the only pleadings permitted him by statute, and, if that issue be one of fact, must prove his de fense by competent evidence. The record, however, presents no attempt to set up the previous tender of the mortgage debt as a defense to the action, but merely an appeal to the court to dismiss the action because continuance of the litigation would be wholly needless; the defendants having performed all that plaintiff sought to enforce by her suit, namely, paid the full amount demanded by the complaint. That courts have inherent power to protect themselves against fictitious and futile litigation is unquestionable. Moore v. Helms, 74 Ala. 368; Allen v. Lewis, Id. 379; Haley v. Bank, 21 Nev. 127, 26 Pac. 64, 12 L. R. A. 815; Merritt v. Merritt, 16 Wend. 405; Loop v. Chamberlain, 17 Wis. 504; Noonan v. Orton, 31 Wis. 265; Ledebuhr v. Krueger (Wis.) 91 N. W. 1012. It would be strange, indeed, if all the machinery of pleading, trial, and judgment must be gone through, when no controversy exists. The convenience of the courts, but more especially of the public, demands that power exist to prevent such absurdity. In the present case the absolute futility of any further steps was made to appear beyond controversy. The trial court was clearly right in summarily relieving both itself and the defendants from the burden thereof.

Appellant further urges, however, that she was entitled to the costs already incurred; and, since the deposit of money and motion to dismiss were predicated upon assumption that she was within her strict right in commencing action, that contention might be unanswerable in action at law, where costs are matter of strict statutory right. This, how ever, is a suit in equity, wherein allowance of costs is discretionary, at least upon dismissal. Section 2018, Rev. St. 1SOS. The ex

In

ercise of that discretion will be reviewed on appeal only when abuse clearly appears. the present case we are satisfied that the conduct of plaintiff and her attorney was such as to fully justify the withholding of costs from her. Confessedly, the amount due upon the mortgage was offered her attorney before suit, when he apparently owned it; and he was notified that pay was ready at any time, whether a legal tender was made or not. His only excuse for nonacceptance was that he was engaged in preparing a lengthy bill of exceptions, and could not spare the time to look up the mortgage; yet he did take time immediately not only to find it, but to formally transfer it to plaintiff, and to prepare the voluminous complaint and other papers necessary for commencing this foreclosure action, which he caused to be served with all haste, instead of notifying defendants' attorney that he would accept payment. The only motive conceivable for such conduct is not one which commends itself to courts of equity, or invites their favors.

The order appealed from is affirmed.

On Rehearing.

(March 21, 1903.)

The appellant, upon motion for rehearing, complains of the decision of this court as erroneously assuming that, before the motion to dismiss, the defendants had "performed all that plaintiff sought to enforce by her suit, namely, paid the full amount demanded by the complaint"; contending that plaintiff was entitled to recover a considerable additional sum for taxes paid upon the mortgaged premises. A sufficient answer to this contention is that the complaint furnishes no justification for it. There is no allegation therein that the plaintiff had paid any taxes; merely that the defendant had neglected to pay them. Nor is there prayer for the recovery of anything, except principal, interest, and costs. Under this complaint, without amendment, plaintiff would have had no right to any judgment in her favor for any taxes she might have paid. The attitude of the plaintiff's attorney on this question is further evinced by a letter written by him on February 5th, a day or two after the deposit in court, defining the amount claimed to be due on the mortgage at $195.75, together with clerk's fees, $3, register's fee, 50 cents, disbursements for witnesses and to prepare for motion and trial, $15, sheriff's fees, $7.50, together with taxable costs for 16 folios of complaint and solicitor's fee of $50, but containing no suggestion that any taxes were claimed. Neither do the affidavits filed upon the motion show any such right. It is not in those affidavits anywhere declared that the plaintiff has paid any taxes upon the premises. is stated that Mr. Estabrook, in whose name rested another foreclosure judgment and a common-law judgment, had paid certain taxThis fell far short of asserting any right

It

low the city of Portage; that in its natural state at high water the waters of the Wisconsin overflowed its low southerly bank in Caledonia, and found their way southward into the Baraboo river, which was at a lower level, and thence said waters passed onward to the above-mentioned junction of the two rivers; that plaintiff is the owner of certain described lands in the town of Caledonia, which were among those over which overflowing waters sometimes passed; that under and in pursuance of chapter 213, p. 464, of the Laws of 1873, which authorized the construction of a levee along the south bank of the Wisconsin river by the town of Caledonia, separately or in connection with the city of Portage and town of Fairfield, for the purpose of reclaiming the lands subject to overflow in times of high water, and protecting the highways from overflow, and enabling the proper authorities to keep them in passable condition at all seasons, and payment of the expense thereof both out of general taxes and by special assessment of onethird upon the specially benefited lands, the town of Caledonia did, in 1886 and 1887, construct such a levee along the southerly bank of the Wisconsin, from a point several miles above the plaintiff's lands, past and adjoining the same, to a point in the city of Portage several miles below them, and did maintain said levee up to the time complained of in the year 1900; that in June, 1900, said levee became weakened and out of repair at a point opposite plaintiff's premises, to which fact plaintiff called the attention of the proper authorities of the defendant town, pointing out to them the danger of its destruction in high water, and damage to plaintiff's property; that said defendant town wholly failed and neglected to repair said levee, or take any steps to protect the plaintiff from danger thereby; that about the 1st of October, 1900, news came of high water on the upper Wisconsin, and plaintiff again notified the chairman and clerk of the defendant town and overseer of highways, and requested precautionary steps to be taken to protect the levee and the property of the plaintiff from injury by reason of the said defects, but the defendant wholly failed and neglected to take any such steps; that about the 9th of October the said high water occurred in the part of the Wisconsin river opposite plaintiff's lands, and by reason of the carelessness and negligence of the defendant in failing to properly construct and maintain the levee in safe condition, and in neglecting to repair the same, it broke at a point opposite the lands of the plaintiff, and allowed the waters of the river to flow over and across said lands, doing them great damage by reason of washing and of the deposit of river sand and débris thereon. Whereupon, on November 7th, notice of such injuries, and of claim for damages thereby caused, was served upon the town clerk, and claim was

audit at its regular meeting in April, 1901, and, such claim being disallowed, this suit was commenced more than 10 days thereafter, praying recovery of the damages caused plaintiff's lands as aforesaid in the sum of $2,271. The defendant demurred on three grounds: (1) That the court has no jurisdiction of the subject of the action; (2) that the complaint does not state facts sufficient to constitute a cause of action; and (3) bar of the cause of action by the limitation provided by section 4222, Rev. St. 1898. The demurrer was sustained without specification of the grounds.

Daniel H. Grady, for appellant. W. S. Stroud and J. H. Rogers, for respondent.

DODGE, J. (after stating the facts). The complaint discloses that chapter 213, p. 464, Laws 1873, if valid, imposed upon the town of Calendonia power and authority to construct and maintain a levee for the purpose, amongst others, of protecting lands, including those of the plaintiff, from overflow by the waters of the Wisconsin river. If this power or duty could be imposed upon the town at all, that could be only because it may be considered within a legitimate governmental purpose. Hence the town, in exercising the power thus conferred, if the law was valid at all, was exercising a function of government, addressed toward the plaintiff and his lands in a governmental respect, namely, by supplying to him certain protection. The charge is that he suffers by neglect in the performance of that authority. The logical result of nonliability seems to follow irresistibly in the light of principles very recently reiterated by this court. Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420; Morrison v. Eau Claire (Wis.) 92 N. W. 280; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332. If it be conceded that it is a legitimate governmental function to protect the lands of plaintiff and others against the overflowing waters of the adjoining river, the municipality which, by authority of law, attempts to execute that function, cannot be liable to one toward whom it is addressed for injuries resulting from negligence therein. It is this circumstance-that the governmental act of building these levees was addressed to the plaintiff's lands-which distinguishes the situation from many of the illustrative cases cited or suggested by appellant; such, for example, as neglect to retain waters of a canal within its banks. If the governmental act and purpose were the maintenance of a canal as a waterway, or to conduct water for distribution through waterworks, such act would not be addressed toward the landowners adjoining the canal. Toward them the attitude of the municipality maintaining the canal would be that of an adjoining proprietor, bound as any individual to respond in damages for its negligence, as pointed out in Morrison v. Eau Claire, supra. The case of Barden v. Portage, 79 Wis. 126, 48 N. W. 210, upon which appellant largely rests the present action, is distinguishable on precisely the same grounds. In that case Barden's lands, where the waters of the river were turned onto them, were beyond the limits of those which the city had undertaken to protect. The damage did not result from defective construction or negligent maintenance of the levee, but from the fact that the city, in attempting to protect certain lands, changed the course of the river so that it overflowed other lands, toward which the city was exercising no governmental or protective function, but was merely an upper riparian owner; hence was subject to the liabilities of that relationship.

The complaint therefore negatives any liability of defendant to the plaintiff for the damages suffered by the latter, and the demurrer was properly sustained on the ground of inadequacy of facts alleged to constitute a cause of action.

Order appealed from is affirmed.

ROBERTS v. ERICKSON, County Clerk. (Supreme Court of Wisconsin. March 21,

1903.)

REGISTER IN PROBATE-SALARY-COUNTY BOARD-POWER TO PROHIBIT PAY

MENT-MANDAMUS.

1. Rev. St. 1898, § 694, provides that the board of any county in which a register in probate may be appointed, the salary of which register is not now fixed by law, may fix the salary of such register, which shall be payable at the end of each month. Section 2464a provides that, if such board shall not fix such salary for him, the judge shall compensate such register for his services. Held, that where a county board has fixed the salary for a register in probate, and has not changed it, and has collected the same by tax, and appropriated the money therefor, it cannot prohibit its payment.

2. The money for a month's salary of a register in probate had been raised by taxation, and an order had been made by the county board that orders be issued therefor at the end of each month. Rev. St. 1898, § 709, makes it the duty of the county clerk to sign orders under such circumstances. Held, that mandamus would lie to compel him to do so.

Appeal from Superior Court, Douglas County; C. Smith, Judge.

Petition by Anna F. Roberts for a writ of mandamus to compel John Erickson, county clerk of Douglas county, to issue and sign a county order for the payment of plaintiff's salary as register in probate. The court directed the issuance of an alternative writ. From a judgment dismissing the same on the coming in of the return, plaintiff appeals. Reversed.

Appeal from judgment dismissing alternative writ of mandamus upon the return, showing substantially the following facts: For some three years prior to 1902 there had been a duly appointed register in probate, appointed by the county judge, whose term of office expired in January, 1902, and for

whom a salary had been fixed by the county board of Douglas county prior to his appointment, and had been regularly paid. At an adjourned meeting of the county board held March 12, 1901, a resolution was adopted to the effect that the salary of the county judge who was to be elected in the April following be fixed at $1,500 for each year of his term, and that the salary of register in probate for said time be fixed at $480 per annum, payable in monthly installments, the same as other county officers. L. S. Larson, having been elected county judge, upon his qualification, in January, 1902, appointed the relator register in probate, and she was regularly paid her salary of $40 at the end of each month up to the last of August, 1902. There was included in the tax levy for the year 1902, and duly collected, the sum of $3,000, for the purpose of paying the salary of the county judge and register in probate and other expenses of the county court for that year. The county board, by recorded vote, had ordered that orders be issued at the end of each month to pay the salaries of the various county officers. At a special meeting of the county board on August 26, 1902, it was resolved "that on and after September 1, 1902, no salary or other allowance be made or paid to the register of probate by Douglas county." Relator continued to perform her duties as register, and on the 1st day of October, 1902, demanded of the respondent county clerk to issue and sign an order for the payment of the $40 for her salary during the month of September, which he refused to do.

Louis Hanitch (L. S. Larson and D. E. Roberts, of counsel), for appellant. C. H. Crownhart, for respondent.

DODGE, J. (after stating the facts). Chapter 303, p. 611, of the Laws of 1895, presents a somewhat complicated general scheme for the creation of a responsible public officer to perform the clerical functions essential to the procedure in county courts, and theretofore involved in the duties and powers of the county judges. It recognized two distinct interests to be considered in deciding in any individual instance whether a register in probate shall exist for that county, or the clerical functions shall continue to be exercised by the county judge. First and primarily there is the interest of the judge himself, who, since he may engage in the practice of law or business, may wish to relieve himself from the demands of these clerical duties on his time. He, therefore, is given full power, at his will, to create or extinguish such an officer. Next there is the interest and convenience of the public. The total labor of the court may be only so much that the judge alone can perform it without delays, or the reverse may be true, so that the existence of a clerical officer is essential to prompt dispatch of business and to the convenience of