Volume 118 — Wisconsin Reports

<p>Appeal from a judgment of the circuit court for Kenosha county: E. B. BeldeN, Circuit Judge.</p> <p>Plaintiff being the owner of a tract of land nine or ten rods in width, bounded northerly on a highway running in a northwesterly and southeasterly direction, in June,, 1901, built a fence on what he claimed to be the boundary line between his premises and such highway. That line was adopted in compliance with a survey made by one McKesson, hereinafter called the “McKesson survey,” and on the theory that the highway was three rods in width, the fence being about a foot more than one and one-half rods from the center line of said survey. That highway is the same considered in Randall v. Rovelslad, 105 Wis. 410, 81 N. W. 819, and plaintiff’s premises are next west of those of Rovelstad, considered in that case. The highway was laid out by county commissioners in April, 1840; their report containing no specification of its width, but merely of the line pursued. A survey by one Pow-rie was also made, and presented upon the trial, which located the center line of the road opposite plaintiff’s premises some two rods south of the McKesson. Considerable evidence was given of the method of making both surveys and of the supposed finding of original monuments and other indications of the location of the original traveled highway. Plaintiff’s fence was a wire web, extending across the whole width of his premises, parallel to the course of the road, and with fences in extension of the east and west sides thereof. It effectually obstructed the traveled part of the road, which, owing to topography, Avas crowded southward at this particular point. The toAAm officers, under claim of such obstruction, rem.OA’ed all of the fence back to a point about two rods and a half south of the center line according to McKesson’s survey, but not beyond the -limits of the highway according to the PoAvrie survey. The court held the McKesson survey correct, and the highway three rods wide, and, as a result, that all acts of the defendants were upon plaintiff’s premises, and that he Avas thereby damaged $25, for which judgment was rendered, accompanied by a permanent injunction against threatened repetitions of the same trespass; from which judgment the defendants appeal.</p>

Halsey, Circuit Judge. An action of replevin instituted by plaintiff for the recovery of a mare named Mabel L., of the alleged value of $1,000. Plaintiff gave the undertaking required by statute for the delivery of the property.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Lawrence W. Halsey, Circuit Judge.</p> <p>This action was commenced March 22, 1901, to foreclose a mortgage executed September 7, 1894, by the defendants Frank Kosecki and wife, to one Henry Herman, upon the lands described, and which mortgage was recorded in the register’s office September 13, 1894, and was given to secure a promissory note for $2,500, executed by the said Frank Kosecki, to the said Herman at the same time .as the mortgage, payable three years from that day, with interest semiannually at six per cent, per annum. The complaint, among other things, alleges, in effect, that January 6, 1896, the defendant land company acquired title to the land covered by the mortgage by deed which was recorded, and afterwards, for value received, it procured an extension of the time of payment of the note and mortgage to September J, 1900, and assumed and agreed to pay the same; that March 18, 1900, Henry Herman, in consideration of $2,500 paid to him by the plaintiff, duly sold, assigned, and transferred said note and mortgage to the plaintiff by written assignment, which was recorded on that day; that the mortgagors and the land company had made default in payments; that there was due thereon the amount therein stated; that the other defendants had or claimed to have some interest in or lien upon the mortgaged premises, or some part thereof, which interest or lien, if any, had accrued subsequently to the lien of the plaintiff’s mortgage.</p> <p>The defendant Herman Manzlce separately answered by way of counterclaim, and alleged, in effect, -that Frank Kosecki and wife executed another note and mortgage September 1, 1894, to one Charles Hahn, for $300, and recorded the same September 14, 1894, and which were assigned by Hahn to the defendant Manzlce October 31, 1894, and the assignment thereof was recorded December 14, 1896, and prayed judgment for the foreclosure of the same, and that the same he adjndged to be a lien prior to the mortgage of the plaintiff, and prior to any and all liens of any of his codefendants.</p> <p>The defendants Amalia Kramer, as widow and adminis-tratrix of the estate of Emil Kramer, deceased, and Arthur Kramer, separately answered by way of connterclaim, and alleged, in effect, that Frank Kosecki and wife executed another note and mortgage September 1, 1894, to the said Charles Hahn, for. $400, covering the property described, and the same was recorded September 14, 1894, and said note and mortgage were duly assigned to the said Emil Kramer December 15, 1896, and the assignment thereof was duly recorded on that day; that said note and mortgage had been foreclosed, and the mortgaged premises sold on the judgment of foreclosure and sale to Emil Kramer, and a sheriff’s deed was executed thereon to him, and the same was recorded December 26, 1900; and prayed judgment that the Kramers have title to the mortgaged premises free and clear from any incumbrances except the Manzke mortgage.</p> <p>The plaintiff, by way of reply, put in issue each of such counterclaims. The several dates of executing the respective mortgages-and the recording of the same, and the assignments of the respective notes and mortgages and the recording of such assignments, are undisputed, and are as stated above.</p> <p>At the close of the trial the court found, in addition to the facts stated, so far as they relate to the issues here involved, in effect: (3) That Herman was induced to loan to Frank Kosecki the $2,500, and to receive as security for the repayment thereof the note and mortgage for that amount, mentioned, upon the representations made to Herman by Frank Kosecki that he was the owner of the mortgaged premises; that they were free and clear of all liens and incum-brances, and that such mortgage would be the first lien thereon, and that at the time of recording that mortgage the records in the register’s office showed such to be the facts after examination by a competent and reliable abstracter; that, relying upon such representations and records, Herman loaned the $2,500, and received therefor the note and mortgage mentioned; (1) that the plaintiff is the owner of the Plerman note and mortgage and the assignment of the land contract mentioned, and that there is due thereon from Frank IOosecki and the land company the amount therein stated; (11) that all the allegations contained in the complaint in this action are proven and true; (12 to 21) that, after finding the amount due on the notes and mortgages so assigned to and held by Manzke and Kramer, respectively, it was found that said two mortgages were concurrent, and the liens thereof equal and concurrent; (22) that in the foreclosure of the note and mortgage so held by the Kramers neither Manzke nor Herman nor the plaintiff herein were made parties thereto, and that judgment was entered therein October 10, 1899, without either of them being made parties therein; (23) that Emil Kramer died March 8, 1901, and the other Kramers mentioned succeeded to his right therein; (24) that the several amounts due for taxes were as found; (25) that the value of the premises was inadequate to pay all the liens thereon; (26) that notice of the pendency of the action, as required by sec. 3187, Stats. 1898, was filed in the register’s office March 28, 1901. As conclusions of law the court found, in effect, that the plaintiff’s mortgage was the' first lien upon the mortgaged premises, and that all the liens of the other defendants were subordinate and subsequent thereto; that the plaintiff was entitled to judgment of foreclosure and sale of the mortgaged premises, as prayed in her complaint; that the mortgages held by Manzke and Kramer were both subsequent and subordinate to the lien of the plaintiff’s "mortgage, but, as between themselves, were concurrent mortgages, and the liens thereof were equal and concurrent; and tliat tbe plaintiff was entitled to tbe appointment of a receiver, and judgment as therein found.</p> <p>Erom tbe whole of tbe judgment entered according to-such findings tbe defendants Manzke and tbe Kramers appeal to this court, except that part thereof wherein tbe amount due the plaintiff for principal, interest, premiums on insurance, and solicitor’s fees are adjudged.</p>

<p> New trial on payment of costs: Presumption: Appeal and error? Jurisdiction: Mandatory statutes: Bills and notes: Protest: Notice of dishonor: Sufficiency and evidentiary character of notary’s certificate: Evidence: Waiver. </p> <p>1. A new trial having been granted upon payment of costs, no reasons being assigned, tbe presumption arises that tbe verdict was set aside for errors of tbe jury; but, in such case, where tbe verdict was directed by tbe court it conclusively shows that tbe new trial was granted because of errors of tbe court.</p> <p>2. Where a new trial is granted for error of tbe court, while tbe imposition of costs is error, it is not an error of which tbe appellant can. complain where tbe costs were imposed upon tbe respondent.</p> <p>3. Sec. 2878, Stats. 1898, as amended by ch. 100, Laws of 1901 (providing that a motion for a new trial “can only be heard at the same term at which the trial was had,” and “if such motion be made, but not decided during such term, it shall be taken as overruled, and an exception to such constructive denial of the same shall be allowed in the bill of exceptions”), is not mandatory or jurisdictional in the sense that its requirements may not be waived by the parties. Thus where the judge announced that a motion for a new trial would be decided on a certain day within the term, and, upon request of counsel, postponed the announcement of his decision until a later day, which was the first day of the next term, in fairness to the trial court and opposing counsel, the requirements of the statute should be held to have been waived.</p> <p>4. In an action against indorsers of a note dated in Wisconsin but actually executed, negotiated, and made payable in Indiana, the law of Indiana controls as to days of grace and the manner of giving notice of dishonor to the indorsers, while in the courts of this state, the law of Wisconsin controls as to the kind and sufficiency of the evidence necessary to prove such notice.</p> <p>5. In the absence of proof of the law of Indiana relative to what notice of dishonor is required by the law of that state to fix the liability of an indorser, the presumption is that it is the same as that of Wisconsin.</p> <p>6. Under the laws of both Wisconsin and Indiana, the official certificate, under seal, of a notary who protests a bill or note, is presumptive evidence of the fact therein stated.</p> <p>7. Sec. 1678 — 25, ch. 356, Laws of 1899, requires that notice of dishonor to the indorsers of a note shall identify the instrument and indicate that it has been dishonored. Sec. 176, Stats. 1898, provides that the notary shall set forth in his- certificate the contents of the notice. A certificate of the notary stated that the original note itself, “of which' the above is a true and complete copy,” was presented and payment refused, and that it was protested; that notice of protest of “the before-mentioned note” was served on the indorsers by depositing copies of the notice addressed to them, in the postoffice. Held, the certificate sufficiently complied with the statutory requirements and sufficiently stated the contents of the notice served.</p> <p>8. In such case, evidence of defendant as an adverse party before trial, which tended to show that he received timely notice of dishonor of the note, considered; and held sufficient to require submission to the jury of that question, even had the notary’s certificate been insufficient.</p> <p>9. In such case, there was uncontradicted evidence, given by the officers of plaintiff, that S., who as an officer of the maker executed the note, and who was liable as an indorser, stated that if they would wait until four o’clock of the day on which the note matured, he would come to the hank and pay it. Held, that such evidence was sufficient to require the submission to the jury of the question of waiver of protest and notice thereof.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Warren D. Tarrant, Circuit Judge.</p> <p>Action for divorce with incidental relief. The ground of the complaint upon which plaintiff recovered judgment was adultery of the defendant. The court concluded in respect to the matters material to a provision for plaintiff as regards property thus: Defendant owned at the time of the commencement of this action some real estate in the city of Milwaukee, a stock of merchandise such as is ordinarily kept in a small drug store, 300 acres of land in the state of Texas, and a quantity of household goods and some other property, such property, however, not being in excess of his liabilities. The value of the Milwaukee real estate is $9,000, the drug store stock $3,000, the Texas land $1,000 and the household goods $1,500 to $2,000. Such goods were equitably divided between the parties without the aid of the court, plaintiff receiving about one half. The aggregate value of the other property is not in excess of $14,000. The net income of defendant from all sources is $1,025, somewhat over one half being for personal services. Plaintiff had no property whatever when she married defendant. She then had two infant children who were taken into defendant’s family and supported by him until they became of age. She had no children by defendant. She is in fair health, the same not being sufficiently impaired, at least, to require medical treatment.</p> <p>Upon that state of the case the court held that plaintiff ought to have out of defendant’s property $3,900, the same being called an allowance for alimony, support and maintenance and as a full final partition and distribution of defendant’s estate,-to be paid $100 within ten days from date of judgment, $3,800 within six months from such date and to draw interest at six per cent, per annum till paid if not paid within two months from such date, and to be a lien upon defendant’s real estate subject to permission to him to incumber the same by a mortgage for the purpose of raising money to satisfy plaintiff’s demand, paying the proceeds of the loan into court for her use. It was further held that $150 as attorney’s fees, in addition to all sums on that account previously allowed, should be paid by defendant, and that he should pay the taxable costs of the litigation, which were adjusted at $104.82. Judgment of divorce on findings sufficient for that purpose was entered, with a provision for plaintiff in accordance with the foregoing. During the litigation defendant was compelled to pay plaintiff for temporary support about $1,000 and for attorney’s fees and suit money about $200.</p>

<p>Appeal from a judgment of tbe superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>This action is brought by the plaintiff to reform a note and mortgage executed by the defendant E. J. Holtz to plaintiff' on October 4, 1891, to secure the payment of $3,500. The material facts involved in this appeal are as follows: Plaintiff otvned property in Estes’ subdivision and in Van Beck’s subdivision in the city of Milwaukee, incumbered by a mortgage of $600. The defendants O. W. Milbrath and W. G. and E. J. IToltz were the owners under a land contract of twenty acres located in the toAvn of Lake, near Milwaukee, on which there was an unpaid balance of $4,600, due July 19, 1897. Plaintiff and said three defendants .agreed to trade properties upon tbe following conditions: -The defendants Milbrath and ~W. G. and E. J. Holtz were to convey to plaintiff their right under the land contract, he agreeing to assume the indebtedness of $4,600, with interest, and in consideration thereof to convey to those defendants the property in both the Estes and Yan Beck subdivisions subject to the $600 mortgage. These defendants were to execute and deliver to plaintiff a note for $3,500, with interest, in part consideration for their exchange of properties, secured by a mortgage on all the lots in Estes’ subdivision. The defendants Mil-brath and W. O. and F. J. Holtz caused a deed to be prepared conveying plaintiff’s property to F. J. Holtz. This was not understood by plaintiff, who executed the deed without reading it, believing the conveyance was to the three defendants jointly. The defendants also caused to be drawn and executed by F. J. Holtz a promissory note of $3,500, and a mortgage covering the land in Estes’ subdivision, securing the payment of said note. The note and mortgage ran to plaintiff, who was not apprised of the fact that defendants Milbrath and W. G. Holtz were not named therein as makers with F. J. Holtz. One Thomas A. Hanson acted as agent in negotiating the trade between the parties, and plaintiff relied on him to act in his interest, believing that he was acting solely for him. Hanson in fact acted for both parties, and received a commission from defendants. Plaintiff did not read'the deed or note and mortgage, nor request Hanson to inspect and read the same to or for him. He learned the contents thereof shortly after the deed and mortgage had been recordéd on October 6, 1897. The note and mortgage are now the property of the plaintiff, and are due, with interest thereon from April 4, 1900. F. J. Holtz, the mortgagor, is insolvent. The defendants defaulted in the payment of taxes on the mortgaged premises for the years 1897 to 1901, inclusive. After learning that Milbrath and IF. G. Holtz were not included as parties to tbe written instruments, it appears from plaintiff’s evidence that be and defendants bad an interview on tbe subject, and that be relied upon their assurance that everything would be all right, and tbe note would be paid. Tbe court decreed a reformation of tbe note and mortgage to embrace defendants Milbrath and W. 0. Holtz as parties thereto, and bolding them personally liable for tbe indebtedness evidenced thereby.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: OeeeN T. Williams, Judge.</p> <p>Tbis is an action for personal injuries'sustained by the plaintiff while in the employ of the defendant, as alleged in the complaint, in its packing house, in what was known as the “Beef Department,” in slaughtering cattle. That the animal to be slaughtered was first raised by means of a lifting apparatus, consisting partly of friction wheels; one being a large cast-iron wheel, with a groove in the middle of the outer •circumference, and a flange extending from it. That the other was a wooden wheel connected with a lever and with power-giving machinery. That by operating the lever the wooden wheel, while revolving and in operation, was brought in contact with its circumference, with the groove between the flange and the iron wheel, causing the iron wheel to revolve and operate. That February 13, 1899, the iron wheel was, and for a long -time prior thereto had been, defectively constructed, and was in a defective condition. That the iron wheel was not true. That the groove did not afford an even and equal resistance when operated upon by the wooden wheel. That the iron wheel had a crack or crevice extending from the outer edge of the flanges for a distance of from one and one half to two inches downward. That the wooden wheel at the date named, and for a long time prior thereto, was also defective, in that a large piece thereof was broken therefrom. That the outer surface of the circumference thereof was uneven and worn so its operation in contact with the iron wheel — producing friction necessary for the operation of the apparatus — it operated in an uneven and jarring manner. That such defects in the two wheels when in operation caused an unusual, unnecessary, and excessive strain upon the iron wheel. That on the day named a large beef had been raised by means of said apparatus, and had been slaughtered, and was being lowered by means of such apparatus, when the iron wheel suddenly burst, causing' a piece to be hurled with great violence against the head of the plaintiff, cracking his skull and injuring his brain and otherwise. That the iron wheel had been worn out by long usage. That both' wheels were out of repair in the respects mentioned, and that by reason of the fact that the wooden wheel was broken and defective as stated, and by reason of the worn-out condition of said wheels, and the unusual, unnecessary, and excessive strain upon such wheels by reason of the defective condition thereof, the iron wheel was caused to be broken, as stated, with the results mentioned. That such defects were at the time mentioned, and for a long time prior thereto had been, within the knowledge of the defendant, but not within the knowledge of tbe plaintiff, and could not have been discovered by bim witb tbe exercise of ordinary care.</p> <p>Tbe answer consists of admissions, denials, and counter allegations. It appears that tbe wooden wheel was about eighteen inches in diameter, and tbe iron wheel about five feet in diameter, and tbe groove in it about three and one half inches deep, and Y-shaped. Tbe wooden wheel was in constant revolution. When it was pressed against tbe iron wheel by means of tbe lever, tbe iron wheel was thereby made to revolve, and, by so doing,'wound up a rope upon a drum attached to tbe iron wheel. This rope, on being attached to the beef and wound up on the drum, raised the'beef; and when the beef reached the right height a brake was set to hold the iron wheel, and the lever was released, and that removed the wooden wheel from the iron one, so that the wheels yrere no longer in contact, but some inches apart. When the beef was to be lowered, the brake was loosened, and the weight of the beef caused the iron wheel to revolve in the opposite direction, and the rope to unwind from the drum.</p> <p>At the close of the trial the jury returned a special verdict to the effect (1, by consent of counsel) that the plaintiff was injured February 11, 1899, in the slaughtering room of the beef department of the defendant’s establishment, by being struck on the head by a piece of an iron hoisting wheel at the west hoist in said room; (2) that said iron wheel was defective or out of repair immediately before the plaintiff was injured; (3) and the defendant knew of such defect or want of repair, or, in the exercise of ordinary care, ought to have known of the same, in time to have remedied the same prior to the plaintiff’s injury; (4) that such defect or want of repair was the proximate cause of the plaintiff’s injury; (5) that the wooden friction wheel of said hoisting apparatus ■was defective or out of repair immediately before the plaintiff was so injured; (6) and the defendant knew of such defect, or ought, iu the exercise of ordinary care, to have discovered such defect, in time to have remedied the same prior to tlie plaintiff’s injury; (7) that such defect in said wooden wheel was the proximate cause of the plaintiff’s injury; (8) that the defendant did not exercise ordinary care in the inspection of said west hoisting apparatus immediately before the plaintiff was injured; (9) that the plaintiff was not guilty of any want of ordinary care which proximately caused or contributed to his injury; (10) that $2,000 would compen- ■ sate the plaintiff for such damage as he sustained by reason of his injury. Thereupon judgment was entered upon such verdict in favor of the plaintiff for the amount stated and costs. Erom that judgment the defendant brings this appeal.</p>

Halsey, Circuit Judge. This is an appeal from an order dissolving a temporary in-junctional order. Held: and that the resolution attached to the complaint was legally adopted at their meeting. The answer contains other allegations not necessary to be inserted.

Milwaukee county: J. C. Ludwig, Judge. Action for personal injuries suffered as the result of tke runaway of tke korse of plaintiff’s decedent, Damian ILeer, wko was tke original plaintiff, and died after judgment. He will kereinafter be referred to as plaintiff. Tke runaway is claimed to have keen caused by tke negligence of defendant’s employee in suddenly starting its steam roller into operation as tke plaintiff was driving past it.

<p> Criminal law: Homicide: Failure of accused to testify: Improper remarks of counsel: Error cured, Toy subsequent charge. </p> <p>1. At the close of the testimony on the trial of one charged with murder, the district attorney in his argument to the jury was permitted to say: “If one of the jurymen were arrested on a charge at this time he could at least show himself — he himself could show the circumstances surrounding the affair, and not depend upon friends or relatives to get him out of the difficulty.” One defense relied on was an alibi, but the accused did not talce the stand as a witness on his own behalf. Upon objection being made to the remarks quoted, the district attorney explained that he made them in reply to an illustration used by the attorney for the accused in his opening statement, wherein was said: “If one of these jurors, at a certain time when they were sitting here in the jury box, was accused of a crime, that the defense would be an alibi, and the only defense.” Held,, that the remarks of the district attorney were improper and without justification, and left the jury to infer that the accused could himself alone, by taking the stand and testifying, have shown the circumstances without depending upon friends to do so for him.</p> <p>2. In such case, although the failure of the court to condemn the objectionable remarks was error, it was cured by an instruction given in the general charge, that: “The statutes of our state provide and you are so instructed, that in all criminal actions and proceedings the party charged shall, at his own request, but not otherwise, be a competent witness, but his refusal or omission to testify shall create no presumption against him,” and further, that, “The argument of counsel is only for the purpose of aiding you to reach a proper verdict in the case, by refreshing in your minds the evidence . . . and by showing the law applicable thereto, but, whatever counsel may say, you will bear in mind that you are to decide the questions at issue free from bias, prejudice, or sympathy; that it is your duty to be governed in your deliberations by the evidence, . . . and the law as given by the court in these instructions.”</p>

<p>Error to review a judgment of the circuit court for Buffalo county: E. W. Hel:ms, Circuit Judge.</p> <p>Writ of error to conviction and sentence of the plaintiff in error, hereinafter called the “defendant,” of murder in the first degree, for the murder of one Mary Seldon at the town of Pepin on June 16, 1898. The general course of events, as claimed by the prosecution, was substantially as follows:</p> <p>On the date named, Thomas Seldon, a farmer, residing about two miles from Pepin, left borne to attend a veterans’ reunion at Pepin, together with all bis family except bis sixteen-year old daughter Mary, who was left in charge of the house, at from 9 :80 to 10:30 in the forenoon. lie left approximately $400 in a locked secretary in said house, containing, amongst other things, thirteen $20 gold pieces and one $10 gold piece, the remainder being mainly in paper, with, some silver. The daughter, Mary, was a quiet, homestaying girl of cheerful disposition, and exhibiting nothing abnormal in her disposition. Somewhere about 1 o’clock the house was. discovered to be on fire by a passing farmer, who entered the premises, saw no one, made some entirely futile attempts at checking the fire, and then devoted himself to setting at liberty certain animals, and saving a buggy, and perhaps other property, from the sheds; he not being able to enter the house by reason of its being locked and by reason of the extent of the conflagration. An hour or two later, when the destruction was practically complete, Hr. Seldon, and about the same time some others, arrived on the ground, and about this time was discovered the trunk of a human body lying in the cellar of the one-story kitchen, upon what appeared to be the coals of a prepared pile of firewood, entirely distinct from the debris of the burned.building, and of magnitude about six or eight feet square and some eighteen inches deep. A careful search in the ashes under the place where the secretary had stood resulted in the finding of no coins except two nickel pieces and a two-shilling pocket piece; also the lock of the secretary. There is no evidence of any one’s being known to enter the premises after Seldon’s departure until the discovery of the fire, except a son, who testifies that he came from another farm, put up his horses, got something to eat, and then himself went to Pepin to attend the reunion, perhaps an hour later than the others. The defendant resided with his father some five or six miles in another direction from the village of Pepin, and was not shown to have any recent knowledge of the Seldon premises. It was proved that he declared, a day or two before the 16th, that he was without money. It appeared that certainly on the morning of the llth he was in St. Paul and Minneapolis, and made certain purchases, and expended money to the amount of $20 or $25. Upon inquiry be claimed to bave started for St. Paul during the night of the 15th, and, by stealing rides, to have arrived in St. Paul about noon of the 16th. Evidence was offered, in contradiction of this, that be was seen at Stockholm, on the Wisconsin side of Lake Pepin, and again in Lake City, on the Minnesota side, in the evening of June 16th, and that a boat was taken from the shore at Stockholm the evening of the 16th, and found on the shore at Lake City the following day. The identification of the defendant as the person so seen was a subject of dispute. He was arrested on June 20th, and in the August following made his escape from the county jail, after being informed that there was a threat of lynching. After some days of biding, during which he visited bis father’s bouse, be fled to North Dakota, where be adopted an assumed name, and, after some farm work, spent the winter in a shanty in a remote region, bunting and trapping. Evidence was offered of the expenditure by him of considerable sums of money, including some six or seven $20 gold pieces. Other facts material to specific errors appear in the course of the opinion.</p>

<p>Error to review a judgment of the circuit court for Oneida county: W. O. Silverthorh, Circuit Judge.</p> <p>The plaintiff in error was tried at the May, 1902, term of the circuit court for Oneida county. He was duly arraigned on an information filed by the district attorney, charging “that on the 5th day of April, A. D. 1902, at said county, John Birker, being then and there armed with a dangerous weapon, to wit, a large pocketlmife, did make an assault upon one Robert Hawthorne with said knife, with intent the said Robert Hawthorne to kill and murder.” Upon the evidence received on the trial, the court submitted the case to the jury with instructions and different forms of verdict, one of which was, “Guilty of assault with intent to do great bodily harm.” The court substantially instructed the jury upon this phase of the case that they might find the plaintiff in error guilty of assault with intent to do great bodily harm, under the charge set forth in the information, if they should determine from the testimony that defendant did not intend to murder Hawthorne, but that he did intend to do him great bodily harm. The jury returned a verdict finding the plaintiff in error guilty of an assault with intent to do great bodily harm. Motions in arrest of judgment, to set aside the verdict, and for a new trial were properly made in behalf of plaintiff in error, as well as a request to the court to certify the case to this court, pursuant to sec. 4721, Stats. 1898. Plaintiff in error excepted to the instructions and forms of verdict submitted, and the rulings of the court on the motions and requests made in his behalf. Judgment was rendered and entered upon the verdict sentencing plaintiff in error to confinement in the state prison for the term of three years. To reverse that judgment, plaintiff sued out this writ of error.</p>

<p> Corporations: Rights of stockholders: Directors: Breach of dutyr Issue of shares of stock to control corporation: Equity: Remedies: Waiver: Practice. </p> <p>1. On questions of corporate policy, the stockholders, subject to temporary control by the board of directors, have the ultimate-right to decide according to majority vote.</p> <p>2. A majority of a board of directors of an already established and going corporation, representing the one of two factions which had the minority of the capital stock, availing themselves of the temporary constitution of the hoard, exercised the power thus vested in them to sell a quantity of unissued original stock to a confederate, for the purpose of placing in hands favorable to their policy a majority of the total corporate stock. No opportunity was given to all existing stockholders to take their proportionate share of such increase. Held, that such sale was a breach of duty of the participating directors, and conferred no rights upon the purchaser who knew of and participated in the unlawful act and purpose.</p> <p>3. In such case, there being no circumstance of delay, acquiescence or change of position in innocent reliance upon the validity of the stock issued, equity should decree the invalidity of such stock and cancellation of the certificates; that upon surrender of such certificates the corporation should repay the amount paid for such stock, without interest, less dividends received; also that all elections of directors by use of such stock should be decreed invalid, as well as any election of the general officers by such illegally chosen board of directors, and that the participants in the wrongful transaction be enjoined from using such stock, or claiming or exercising any rights as officials.</p> <p>4. In an action by stockholders of a corporation against the corporation and certain directors and stockholders, to set aside the issue and sale of corporate stock made by a majority of the board of directors to a friend, for the purpose of obtaining unlawful control of the corporation, the complaint alleged, among other breaches of duty by such directors, the taking out a patent by one director in his own name which ought to belong to the corporation. No issue was raised by the complaint as to the title to the patent, or relief in regard thereto prayed. Judgment was entered in the action requiring the director to transfer such patent to the corporation. Held, error, since the evidence relating to the patent was admissible, and apparently offered on other issues than the corporation’s right to the patent, and the director was not thereby so placed that silence on his part could be deemed a waiver of objection to the trial, in that action, of title to the patent.</p>

<p>MaNdamus to the Secretary of State.</p> <p>October 22, 1902, the relator filed in this court a petition for an alternative writ of mandamus to compel the defendant, as secretary of state, to draw a warrant on the state treasurer, payable to him, for $492.36, in the manner provided by ch. 468, Laws of 1901, or show cause to the contrary.</p> <p>The petition alleges, in effect, that the relator was a resident and citizen of Eau Claire; that after the enactment of ch. 203, Laws of 1895, providing for the Keeley treatment and cure of inebriates, and during 1895, 1896, and 1897, one Dr. Montgomery established and maintained the Eau Claire Institute for such treatment of inebriates; that eight persons therein named were treated by such institute upon certified orders of county judges at the expense of the respective counties sending them, as prescribed in that act; that the aggregate amount of the expense of such treatment of said eight persons was $815; that between September 10, 1895, and Eebruary 2, 1897, the relator sold and delivered to Dr. Montgomery merchandise and supplies to the amount of $815, and received in payment therefor an assignment from Dr. Montgomery of said orders for the commitment and treatment of such inebriates to the amount of $815, which orders are still owned by the relator, as an innocent purchaser thereof, and that they are wholly unpaid; that after the relator so purchased such orders and held the same, this court, on Eeb-ruary 2, 1897, decided that ch. 203, Laws of 1895, was un-. constitutional and void (Wis. K. I. Go. v. Milwaukee Go. 95 Wis. 153, 70 N. W. 68) ; that ch. 468, Laws of 1901, was enacted to reimburse, at least in part, the relator and other holders of similar orders for money so paid out and expended by them; that within sixty days after the publication of that act the relator filed with the secretary of state, state treasurer, and attorney general,- as the auditing committee provided for therein, the said county orders so purchased by him, with full proof that he was such innocent purchaser, and the same were audited by such committee at $815; that several other persons holding similar orders so filed the same and made similar proof before the committee, and the same were audited by such committee; that all orders so filed with the committee and audited amounted in the aggregate to $49,658.44, which orders or claims should be paid pro raid out of the $30,000 appropriated by ch. 468, Laws of 1901, and that the relator’s proportionate share thereof is $492.36; that the state treasurer has in his hands the $30,000 so appropriated, and the same has not been appropriated for any other purpose; that it is the duty of the secretary of state to draw his warrant on the state treasurer payable to the relator for his proportionate share of such appropriation, to wit, $492.36, and the duty of tbe state treasurer to pay tbe same, but that tbe secretary of state bas refused and still does refuse to draw sucb warrant, and tbe state treasurer still refuses to pay to tbe relator tbe amount stated, and that sucb refusals are upon tbe sole ground that cli. 468, Laws of 1901, is unconstitutional and void.</p> <p>On sucb petition an alternative writ of mandamus was issued by tbis court as prayed October 22, 1902, and on November 11, 1902, tbe secretary of state, by E. R. Hicks, attorney general, appeared, and by way of return to tbe alternative writ of mandamus moved tbe court to quasb tbe writ, for tbe reason that tbe facts stated were not sufficient to constitute a cause of action.</p> <p>They contended, inter alia, that tbe state legislature bas authority to exercise any and all legislative powers not delegated to tbe federal government, nor expressly or by necessary implication prohibited by tbe national or state constitution. State ex rel. New Richmond v. Davidson, 114 Wis. 583, 90 N. W. 1067; N. W. Nat. Bank v. Superior, 103 Wis. 43; Wis. O. R. Go. v. Taylor Go. 52 Wis. 60; State ex rel. Tesch v. Von Baumbach, 12 Wis. 310--313;. Overshiner v. State, 156 Ind. 187, 83 Am. St. Rep. 187, 189; State v. Narragansett, 16 R. I. 424, 3 L. R. A. 295— 298; State ex rel. Hicks v. Stevens, 112 Wis. 170, 172; Oooley, Const. Lim. 204. Tbe legislative construction of tbe constitution, continued without question for a long number of years, bas great weight in determining tbe constitutionality of tbe law. State v. Gerhardt, 145 Ind. 439, 33 L. R. A. 313-319; State v. Narragansett, 16 R. I. 424, 3 L. R. A. 295; People ex rel'. Mooney v. Hutchinson, 172 Ill. 486, 40-L. R. A. 770-773; Boyden v. Brookline, 8 Yt. 286; Bruce v~ Schuyler, 4 Gilman, 221, 46 Am. Dec. 447; Maher v. State, 1 Porter, 265, 26 Am. Dec. 379; 6 Am. & Eng. Ency. of Law (2d ed.) 932, 933; Dean v. Borchsenius, 30 Wis. 236-246; Cohens v. Virginia,, 6 Wheat. 264, 418; Harrison v. State ex rel. Harrison, 22 Md. 468, 85 Am. Dec. 658. The statute does not violate the provisions of sec. 2, art. YI, Const., which provides that the secretary of state shall be ex officio auditor. State ex rel. Crawford v. Hastings, 10 Wis. 525-530; State ex rel. Sloan v. Warner, 55 Wis. 271; Martin v. State, 51 Wis. 407; State ex rel. Cornish v. Tuttle, 53 Wis. 45; C. & N. W. B. Co. v. Langlade Co. 56 Wis. 614; Lynch v. Steamer “Economy ” 27 Wis. 69; 6 Am. & Eng. Ency. of Law (2d ed.) 1088. The proposition is not in violation of sec. 1, art. XIY, U. S. Const. Davidson v. New Orleans, 96 IT. S. 97; U. P. B. Co. v. U. S. 99 IT. S. 700; U. S. v. Bealty Co. 163 IT. S. 427. The proposition is supported by considerations that áre sufficient to support a direct tax. State ex rel. New Bichmond v. Davidson, 114 Wis. 583, 90 N. W. 1067; 17 Am. & Eng. Ency. of Law (2d ed.) 272; People ex rel. Buckley v. Board of Police, 63 N. Y. 623; Soens v. Bacine, 10 Wis. 271, 281; Lund v. Chippewa Co. 93 Wis. 640, 652. A claim supported by moral obligation, or founded in justice and equity in the largest sense of those terms, or in gratitude or charity, will support a tax or appropriation. Brodhead v. Milwaukee, 19 Wis. 624; State ex rel. McCurdy v. Tappan, 29 Wis. 664; Lafebre v. Board of Education, 81 Wis. 660-667; Lund v. Chippeiva Co. 93 Wis. 640-650; State ex rel. New Bichmond v. Davidson, 114 Wis. 583, 90 N. W. 1067-1070; New Orleans v. Clark, 95 IT. S. 644; U. S. v. Bealty Co. 163 IT. S. 427; N. 7. Life Ins. Co. v. Boa/rd of Commissioners, 99 Eed. 846; Minneapolis v. Jan-ney (Minn.) 90 N. W. 312; Cooley, Taxation (2d ed.) 127, 128; Friend v. Gilbert, 108 Mass. 408; Att’y Gen. v. Eau Claire, 37 Wis. 400-408; Allen v. Smith, 173 IT. S. 389; Guthrie Nat. Bank v. Guthrie, 173 IT. S. 528; Curran v. Holliston, 130 Mass. 272; State ex rel. Sayre v. Moore, 40 Neb. 854, 59 N. W. 755; Veazie v. China, 50 Me. 518; Morris v. People, 3 Denio, 381; People v. Budd, 117 N. Y. 13; Booth v. Woodbury, 32 Conn. 118; Guilford v. Board of Supervisors, 13 N. Y. 143. Tbe expenditure of money in the manner presented in the statute under consideration is not against the policy of the law. Folschow v. Werner, 51 Wis. 85; snbd. 8, sec. 1038, Stats. 1898; Board of Commissioners v. Lucas, 93 U. S. 108; Pearson v. State, 56 Ark. 148, 35 Am. St. Eep. 91; Mount v. State ex rel. Richey, 90 Ind. 29, 46 Am. Eep. 192; Board of Education v. McLands-borough, 36 Ohio St. 227, 38 Am. Eep. 58$.</p> <p>contended, inter alia, that inasmuch as payment of the Neeley cure orders could not be enforced by taxation, or because the object of such taxation was a private purpose, that the legislature could not accomplish the same object by indirection, namely, appropriating from the state funds for a private purpose money in the state treasury, and then replace it by taxation. Spencer v. School District, 15 Kan. 259-262; Loan Asso. v.' Topelca, 20 Wall. 655 — 664; Hooper v. Emery, 14 Me. 375; Bristol v. Johnson, 34 Mich. 123; Allen v. Inhabitants of Jay, 60 Me. 124; State ex rel. Griffith v. Osawkee, 14 Kan. 418; Wis. K. I. Co. v. Milwaukee Co. 95 Wis. 153, 161.</p>

M. Webb, Circuit Judge., They contended, inter alia, that the promise of the plaintiff that he would not enforce the judgment that he had purchased by a sale of the premises was not void for want of consideration. 3 Pomeroy, Eq. Jur. § 1235; 1 Beach, Eq. Pur. § 291; Pinch v. Anthony, 8 Allen, 536; Ketchum v. St. Louis, 101 U. S. 306, 311; Phelan v. Fitzpatrick, 84 Wis. 240; Buchan v. Sumner, 2 Barb.

The appeal is from an order sustaining a demurrer to the complaint, in an action to recover compensation for personal injuries.

G. Silverthorn, Circuit Judge. This is an action to recover for personal injuries received by the appellant upon an alleged defective highway in the defendant town. The answer denies all the allegations of the complaint, and alleges contributory negligence as a defense. The evidence which was given on the trial is not preserved in the bill of exceptions. The following special verdict was rendered: “1.

<p>Husband and wife: Consortium: Alienation of husband’s affections: Cause of action: Right of action in wife: Stare decisis.</p> <p>1. Ordinarily certainty of the law is more essential to justice than absolute correctness, and a rule of law adopted and long adhered to should be followed, unless obiter dictum, or unless conflicting decisions thereon have been made by inadvertence or otherwise, and the position of the court is already uncertain.</p> <p>2. By the common law the wife had no property right in the performance of the marital duties of her husband.</p> <p>3. Sec. 2345, Stats. 1898, enabling a married woman to bring an action in her own name for any “injury to her person or character,” cannot be construed either to confer a new right for injuries resulting from enticing away the husband, to the interruption or loss of his consortium, or to confer a right to sue for any such injuries.</p> <p>Cassoday, C. J., and Siebeokek, J., dissent.</p>

<p> Wills: Construction: Pecuniary legacy, when charge on residuum: Misconduct of executor: Estoppel: Judgment creditor of executor. </p> <p>1. In an action for construction of a will it appeared, among other things, that by the residuary clause of his will testator gave to his two sons all the residue of his real and personal property, “with the exceptions of the above named bequests,” which bequests exceeded by some $2,000 the total personal estate. He had, by a prior clause in the will, given his widow, who was seven years his junior, and, at the date of the will, in vigorous health, and might have been expected to survive him many years, the right to exhaust the personal estate in her support, which might have been done before the time for the payment of the money legacies arrived. The sons, to whom the residuum was left, were appointed executors and absolved from giving bonds. Held, that a finding that the testator intended to charge the pecuniary legacies upon the mixed residuary fund of both personalty and realty was sustained by the evidence, and that the rights of the specific legatees were prior to the residuary legatees, or any person holding under them.</p> <p>2. Where an executor, to whom was devised the residuum of testator’s estate both real and personal, charged with the payment of pecuniary legacies, has converted all the personal assets to his own use, so they are not available for the payment of such legacies, he is. estopped to assert the existence of such personal assets in exoneration of the realty which he takes subject to such pecuniary legacies. •</p> <p>3. In such, case, a judgment creditor of such executor is in no better position than the executor. His judgment is a lien merely on whatever interest the executor has in the realty, and is subject to all equities therein in favor of others.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: ObeeN T. Willlams, Judge.</p> <p>Defendant appealed from that part of a judgment of the superior court of Milwaukee county in a divorce action which awards to plaintiff the sum of $2,000 as and for a final division and distribution of the defendant’s estate. Plaintiff alleged failure to support, and that the defendant had been guilty of cruel and inhuman treatment, and prayed for a judgment of divorce from bed and board, and for .an allowance of alimony out of defendant’s property, or for a division and distribution of the defendant’s estate, as the court might deem just. The defendant answered, admitting the marriage and residence of the parties, but denied that he was guilty of the acts complained of, and counterclaimed, charging cruel and inhuman treatment, and demanded judgment of absolute divorce. The parties were married November 28, 1893. No children are living as the issue of said marriage. The parties are found guilty of cruel and inhuman treatment toward each other, and defendant was awarded a judgment of divorce from the bonds of matrimony. When the parties separated, the plaintiff secured household goods and effects valued at about $400, which amount represented about one half of defendant’s personal property. All of defendant’s real estate is incumbered by mortgages, his equities therein being valued at $4,150. Aside from his mortgage indebtedness he owed $2,146, leaving the net value of his property $2,004.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: LawbeNoe W. Halsey, Circuit Judge.</p> <p>Roger Moran died testate. In bis will were these provisions :</p> <p>“To my beloved wife, the land and appurtenances situated thereon, known and described as lot No. 7, and 33 acres of lot No. 6, east of the railroad lying in the Town of Gran-ville, in the County of Milwaukee and State of Wisconsin, now possessed by me, during the term of her natural life and after her death to be divided equally among my children who may survive.</p> <p>“I also wish my sister Julia Dolan to have an equal share of the above property with my children, if she survives the death of my wife.”</p> <p>Proceedings were duly had in the county court for the construction thereof, the question being whether the words of survivorship referred to the death of the testator or to the death of his wife. The decision was in favor of the former. The losing parties thereupon appealed to the circuit court, where they prevailed, judgment being rendered accordingly, from which this appeal is taken.</p> <p>They contended, inter alia, that the words of survivorship in the will refer to the death of the wife, and not to the death of the testator. 29 Am. & Eng. Ency. of Law, 486-490; 1 Underhill, "Wills, §§ 349, 350; 2 id. §§ 864, 865; Coveny v. McLaughlin, 148 Mass. 576; Denny v. Kei-lell, 135 Mass. 138; Knowlton v. Sanderson, 141 Mass. 323; Morrill v. Phillips, 142 Mass. 240; Fargo v. Miller, 150 Mass. 225; Wood v. Bullard, 151 Mass. 324; Proctor v. Glande, 154 Mass. 45; Peck v. Carlton, 154 Mass. 231; Pollock v. Farnham, 156 Mass. 388; Bigelow v. Clap, 166 Mass. 91; Olney v. Hull, 21 Pick. 311; Hulburt v. Emerson, 16 Mass. *241; Bates v. Gillett, 132 Ill. 287; Schouler, Wills, 614, note 2. The will created contingent and not vested remainders in such children as were living at his death. Scott v. West, 63 Wis. 529; Stark v. Conde, 100 Wis. 633; Patton v. Ludingion, 103 Wis. 629; 2 Williams, Executors (2d Am. ed.) 538, note; Gray, Perpetuities, § 108;. 4 Kent, Comm. 226, note. If the court should prefer to construe the words of survivorship as referring to the death of the testator and not the life tenant, there is no reason why the court cannot supply words or phrases which the testator meant to use hut unintentionally omitted. In re Donges’s Estate, 103 Wis. 497; Schinz v. Schinz, 90 Wis. 236; Ilellermans Appeal, 115 Pa. Sti 120; Daniel’s Settlement Trusts, 1 Ch. Div. 375; Greenwood v. Greenwood, 5 Ch. Div. 954; Kellogg v. Mix, 37 Conn. 243.</p> <p>They contended, inter alia, that it was the presumed intention of the testator that the beneficiary should have the actual enjoyment, rather than the technical ownership, of the property, and that therefore the presumption would be that the beneficiary’s estate became vested at the death of the testator. McArthur v. Scott, 113 U. S. 340; Baker v. Estate of McLeod, 79 Wis. 534 — 541; 1 Underhill, Wills, §§ 349, 350; Patton v. Luding-ton, 103 Wis. 629, 650; Hersee v. Simpson, 154 FT. Y. 496-502; Burnham v. Burnham, 79 Wis. 557; Starlc v. Conde, 100 Wis. 643; Smith v. Smith, 116 Wis. 570; Estate of Hof-fen, 70 Wis. 524. The weight of authority sustains the contention that words of survivorship refer to the period of the testator’s death, if no special intent appears upon the face of' the will to the contrary. Porter v. Porter, 50 Mich. 456;. Moore v. Lyons, 25 Wend. 119; Estate of Brown, 93 FT. Y. 298; Scott v. Guernsey, 48 FT. Y. 106; Low v. Ila/rmony, 72 FT. Y. 408; Grimmer v. Friederich, 164 Ill.'245; Hansford v. Elliott, 9 Leigh (Va.) 79; Stone v. Lewis, 84 Ya. 474;. Drayton v. Drayton, 1 Desaussure’s Eq. 324; Hoover v~ Hoover, 116 Ind. 498; 29 Am. & Eng. Ency. of Law, 489;. note 1; In re Albistons Estate, 117 Wis. 272.</p> <p>He contended, inter alia, that unless a contrary intention clearly appears, wills operate from, and estates vest at, the death of the testator. Toms v. Williams, 41 Mich. 552; Pood v. Hovey, 50 Mich. 395; Union Mut. Asso. v. Montgomery, 70 Mich. 587. When a devise is made to take effect “after” the death of a preceding devisee, the intention is not to create a contingent es-taté, but to indicate when the remainder shall take effect in possession — the commencement of the enjoyment of the estate. Scott v. West, 63 Wis. 529; Livingston v. Greene, 52 FT. Y. 118, 123; Embury v. Sheldon, 68 FT. Y. 227, 236; Gorse v. Chapman, 153 FT. Y. 466; Hersee v. Simpson, 154 FI. Y. 496, 500. The law favors vested rather than contingent estates. Doe dem. Long v. Prigg, 8 Barn. & Ores. 231, 238; Blanchard v. Blanchard, 1 Allen, 223, 225; Pech v. Garitón, 154 Mass. 231, 233; Porter v. Porter, 50 Mich. 456, 461; Heilman v. Heilman, 129 Ind. 59; Marlin v. Kirby, 11 Gratt. 67, 77; Burnham v. Burnham, 79 Wis. 557, 566; Patton v. Ludington, 103 Wis. 629, 650; Gi'immer v. Friederich, 164 Ill. .245, 249. Vested estates are favored because they are less likely-than contingent estates to occasion intestacy, and intestacy is a condition which, a testator does not intend and the law does not favor. Martin v. Kirby, 11 Gratt. 67, 73; In re Donges’s Estate, 103 Wis. 497; Davis v. Davis, 109 Wis. 129, 132.</p>

<p> Street railways: Negligence: Personal injuries: Contributory negligence: Injuries to driver of fire apparatus: Due care: Collision at street crossing: Instructions to jury: Evidence: Witnesses: Cross-examination: Excessive damages. </p> <p>1. In an action for personal injuries to tlie driver of a hose cart it appeared, among other things, that plaintiff, driving rapidly In response to an alarm of fire, and in the line of his duties as fireman, came into collision with defendant’s street car. There was evidence that the car was traveling at a speed of twenty to twenty-five miles an hour, and that nothing was done to check that speed until within twenty feet of collision, although plaintiff’s team was in plain sight when the car was 100 feet from the crossing. Held, that it was inferable that the motorman neglected to keep any lookout ahead during a run of some eighty, feet of approach, and a finding that defendant’s servant negligently operated its car was justified.</p> <p>2. In such, case, it further appeared that plaintiff’s horses, although on a run, were under perfect control, and might have been stopped before collision; that there was n.o failure on plaintiff’s part to look, and no failure to see that which was physically apparent; that to serve the public purpose of his.employment it was plaintiff’s duty to seize every opportunity to make ex- -. pedition, and take chances, in deference to the imperative necessity for speed, which would be wholly unjustifiable otherwise; that the gong on the hose cart was constantly sounded, justifying, in a considerable measure, confidence that crossings and corners would be clear when reached, and that it was undisputed that a uniform custom existed for the operators of street cars to give fire vehicles right of way, and slow down and stop to avoid collision. Held, that although it might have been negligence in law for a traveler under ordinary conditions to have taken the chance of crossing ahead of the car, still the circumstances surrounding plaintiff so differed, that whether plaintiff was guilty of contributory negligence in attempting ,to cross ahead of the approaching car, was properly a question for the jury.</p> <p>3. In such case, it appearing that although the plaintiff’s team was' running, yet it was under perfect control, it is not error to refuse instructions to the jury, based on the assumption that plaintiff approached the crossing at such uncontrollable speed that he could not stop to avoid a collision.</p> <p>4. In such case, a requested instruction, that the jury might absolutely find plaintiff guilty of contributory negligence, if they found there was such uncontrollable speed, is incorrect.</p> <p>6. A requested instruction, in effect, that one approaching a street railway track, and having a reasonable opportunity to judge of the speed of an approaching car, is bound to know such speed, while it may state correctly an abstract rule of law applicable to ordinary circumstances, is misleading, where it appeared that as to fire vehicles there was a uniform custom of operators of cars to change their speed, either by slowing up or stopping, in order to give opportunity for such vehicles to pass.</p> <p>6. Such instruction is further erroneous and misleading in that it requires every man “having a reasonable opportunity to judge” that he judge correctly, and “know” the correct speed. He must observe what is perceptible and must reach the conclusion of an ordinary man,' and not the infallible one. Beyond this the law does not charge him with knowledge.</p> <p>7. A requested instruction, to the effect, that one approaching a car track must, in the exercise of ordinary care, look and listen for an approaching car, and continue so to look and listen up to the last moment that such acts would be of any virtue in preventing a collision with a car, has no application to a case where the evidence establishes, without controversy, that plaintiff did look and see and know all that could have been ascertained by the utmost vigilance.</p> <p>8. Such instruction is, however, faulty in that- it lacks the qualification that one must look and listen if he have opportunity so to do.</p> <p>9. In instructions to the jury the expressions “the great mass or majority of mankind,” and its type, “the man of ordinary care and prudence,” are entire equivalents, and properly used interchangeably.</p> <p>10. In an action for injuries to the' driver of a hose cart, en route to a fire, by collision with a street car, it was undisputed that it was the uniform custom of street cars to stop or slacken speed, and give fire apparatus the right of way. Held, that it was not error to instruct the jury that, inasmuch as such custom had been established beyond controversy, plaintiff had a right to assume that defendant’s servants would comply therewith.</p> <p>11. In an action for injuries to the driver of a hose cart in collision with a street car, evidence of a witness, that sitting on a sidewalk he had frequently heard the gong of the fire patrol wagon, described as similar to the gong on the hose cart, a distance of two blocks, is not objectionable on the ground that the conditions surrounding the witness were not identical with those surrounding the motorman.</p> <p>12. In an action for injuries by collision with a street car, the speed of the car was estimated at varying rates up to twenty-five miles an hour. The motorman had testified on direct examina^ tion that the speed was only seven or eight miles an hour; that the ninth notch of the power lever was the ultimate speed of the car, and that he had it at the eighth. Seld, that it was not error to permit, on cross-examination, the question whether or not the car in question was not a specially rapid one, to which the motorman answered that, while not the most rapid, there were only two others that excelled it.</p> <p>13. Plaintiff, a fireman, thirty-seven years of age, who had been in the fire department nine years, and had attained the rank of captain, with a salary of $100 per month, was injured in a collision with a street car. His knee joint was permanently loosened and enfeebled, and his chest crushed, ribs being broken both in front and rear, penetrating not only the outer membrane, but the pericardium, leaving adhesions which would permanently and seriously interfere with any violent exertions. His expenses for medical treatment had been about $500. His suffering's had been great and he still continued to suffer two years after the injury. He retained his place in the fire department, but was unable to perform certain of the work necessary in fighting fires. Held:</p> <p>(1) That the jury might properly find that his earning capacity was impaired.</p> <p>(2) That a verdict of $4,000 was not excessive.</p>

C. Ludwig, Judge. Appeal from a judgment of nonsuit and for costs. The defendants were the executors of the estate of Valentine Blatz, deceased. The premises in question — a part of said estate — are located at the northwest corner of First avenue and Mineral street, in the city of Milwaukee. A portion of the buildings upon the premises abut on Mineral street. The roof of this portion slopes toward Mineral street.

TIalsey, Circuit Judge. This action was brought to have $1,050, alleged to have been advanced by the plaintiff to the defendant William Schultz in the year 1889 to pay the'purchase price of the lot described, and $46.40, paid by the plaintiff for taxes on the premises in 1895 and 1896, adjudged to be a lien upon said premises prior to and paramount to the lien or claim of the defendant Augusta Schultz, whether by the judgment of divorce which she obtained from the defendant…

Williams, Judge; This is an action to recover for money bad and received.

<p> Appeal and error: Nonapp eatable orders: Supreme court: Authority to entertain appeals. </p> <p>1. An order denying a motion to dismiss an action for want of jurisdiction is not appealable. It does not terminate the action and prevent a judgment from which an appeal can he taken, as is required by subd. 1, sec. 3069, Stats. 1898.</p> <p>2. The supreme court has no constitutional authority to entertain an appeal, not authorized by statute, merely because otherwise the aggrieved party will be without remedy.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Lawrence W. Halsey, Circuit Judge,</p> <p>This was a consolidated action for the foreclosure of mechanics’ liens, brought originally by the plaintiff, a subcontractor, joining as defendants the appellants, Meiselbach, the owner of the property, A. 8. Oreen, the principal contractor, and Wausau Lumber & Goal Company, another subcontractor, alleging lien rights in the two last and in the plaintiff, and praying that the amounts of the respective liens be ascertained, the property sold, and the proceeds divided amongst the several lienholders. The original principal contract was for the erection of several buildings, fences, and sidewalk upon the premises of the appellant, in North Milwaukee, consisting of a triangular parcel of land, bounded on the north by due east and west line, 442 feet; thence approximately south along a railroad, 484 feet; thence northwesterly along another railroad, 566 feet, to a point due south of the place of beginning; and thence north to the place of beginning, 119 feet — containing 3.03 acres; the whole intended to be used, when completed, as a pleasure park or resort, with dance hall, bams, etc. The Wausau Lumber & Coal Company also brought suit as plaintiff, which was consolidated in the action finally tried. The principal contractor, Green, in his answer to the complaint, claimed as due a balance of $3,688, also alleged the filing of notice of lien, and demanded judgment against Meiselbach for said balance, and that the said balance be declared a lien. That answer was never served upon, nor any notice thereof given to, the defendant Meiselbach, who claims to have been in ignorance thereof np to the commencement of the trial. The court found, upon very conflicting evidence, in favor of the Wausau Lumber & Goal Company, that it had furnished lumber for the work to the amount specified in its lien, whereby resulted a balance due it of $1,970. It also found $896.40 due the principal contractor, Green, and that he was entitled to a lien therefor. The detailed facts as to certain special objections raised by the appellant will be mentioned in the opinion in connection with their consideration. The court rendered judgment sustaining the liens claimed upon the entire tract of 3.03 acres, and awarded Green a personal judgment against appellant for the aforesaid balance found due. Meiselbach appeals from so much of this judgment as relates to the claims of Green and of the Wausau Lamber & Goal Gompany.</p>

Elliott, Circuit Judge. This is an action by a principal contractor to foreclose a mechanic’s lien. The answer alleged defective and incomplete construction of the building, and .counterclaimed for damages therefor. The action was referred to a referee, who made findings, which were confirmed by the court. No bill of exceptions has been - settled, and the case comes to this court simply upon the findings of the referee.

<p>Municipal corporations: Unlawful grading of streets: Assessment of benefits: Conclusiveness of report of board of public worlcs: Damages: Appeal and error: Harmless error.</p> <p>1. The report of the hoard of public works, in due form, showing by its recitals that the requirements of the city charter in determining both the damages and benefits occasioned by grading down a street were followed, prima facie establishes all the facts requisite to sustain the validity of their work, but evidence aliunde, showing that the conclusion of the board was not reached by the exercise of judgment, but by a uniform assessment per front foot, is sufficient to overcome such proof, and call for a decision that the assessment is void, in the absence of proof, independent of the report, to the contrary.</p> <p>2. On appeal from a judgment against defendant, it is harmless error to submit the case to the jury on an incorrect rule of damages, where such rule tended rather to diminish the amount of plaintiff’s recovery than to increase it.</p>

Appeals from a judgment of tlie circuit court for Milwaukee county: Lawbeitce W. Halsey, Circuit Judge. Plaintiff, being tbe manager of a Erencb opera company, on March, 1900, entered into a written agreement with tbe defendant Potthoff to give three performances at tbe Pabst Theater, Milwaukee, to furnish “the full acting company of Charley’s Grand Erencb Opera Co. from New Orleans.

Williams, Judge. This is an appeal from a judgment in favor of plaintiff. Tbe action was brought to recover damages for breach of agreement, by tbe terms of which it is alleged plaintiff sold and agreed to deliver to defendant J/,00,000 hard-burned sewer bride ai $10.25 per M., to be delivered at La Farge, Wisconsin; delivery to commence witbin sixty days after date of agreement, and continue as brick were needed by defendant.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Lawrence W. Halsey, Circuit Judge.</p> <p>This action was commenced December 29, 1900, to recover $250 rent alleged to be due the plaintiff upon a lease executed by the plaintiff and the defendant’s intestate, Thomas H. Hoyt, December 29, 1899, wherein and whereby the plaintiff leased to Thomas H. Hoyt the premises therein described for the term of two years from January 1, 1900, at the annual rent of $750 per year, to be paid in equal portions on the 1st day of each and every month, commencing on the day and year last named; and which lease contained a provision that the lessee should keep the premises “in as good repair as the same are in at the commencement of said term, reasonable use and wearing thereof, and damage by accidental fire, or other accidents not happening through the neglect of the lessee, his agents or servants, only excepted; but in case any building or buildings on said premises shall, without any default or neglect of the lessee, be destroyed, or be so injured by fire, or any other cause, as to be untenantable and unfit for occupancy, the lessee shall not be liable or bound to pay rent to the lessor until the same are rebuilt or repaired, or he may thereupon quit and surrender possession of the premises.” The answer admits the incorporation of the plaintiff, the making and terms of the lease, and that the lessee had paid no rent since August 1, 1900, but otherwise denies the allegations of the complaint, and as a defense sets forth the clause of the lease in respect to fire above quoted, and alleges, in effect, that one of the main buildings and one of the largest of the buildings upon the premises was, August 14, 1900, without any fault or neglect of the lessee, destroyed by fire, and by reason of such destruction the premises became, and ever since have been, untenantable and unfit for occupancy; that soon after such destruction the lessee duly demanded of the plaintiff that it repair the same, and place the same in a tenantable condition and fit- for him to occupy, but that the plaintiff had refused to do so, and still refuses to do so; that the lessee has not elected to quit or surrender possession of said premises, but is still in possession thereof; that by reason of the express reservations contained in the lease the lessee became discharged from the payment of any rent September 1, 1900, and has ever_ since that time remained discharged and is now discharged from the payment of rent until the plaintiff rebuilds the buildings so destroyed. At the close of the trial the court found, in effect, the making and terms of the lease, the occupancy of the premises by the lessee, and tlie failure to pay rent as mentioned; that one of the buildings 'upon the premises was destroyed by fire August 14, 1900; that the lessee retained possession of the premises, and the whole thereof, after the fire, and continued to occupy the same, and was in possession of the same at the date of the trial. And as conclusions of law the court found that the lessee did not surrender the premises in question to the plaintiff at any time; that there was then -due and owing to the plaintiff from the defendant on account of the lease $250, with interest on the several installments of rent from the times they respectively became due; and ordered judgment to be entered accordingly. From the judgment so entered the defendant, Marion L. Hoyt, as executrix of the deceased lessee, brings this appeal.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>This is an action for personal injuries. It appeared upon the trial that on November 20, 1900, the plaintiff, while walking on a sidewalk on the west side of Thirty-Seventh street, between Hammond and Custer avenues, in the defendant village, was tripped by loose boards in the sidewalk, and fell, receiving serious injuries. A special verdict was returned by the jury, by which they found (1) that the plaintiff was injured by falling on the sidewalk at the time and place named; (2) that the sidewalk was defective at the place of the injury; (3) that it had been defective since November 6, 1900; (4) that the defect was the proximate cause of the plaintiff’s injury; (5) that the officers of the defendant village had actual notice of the defect in time to have repaired the same, in the exercise of ordinary care; (6) that the defect had existed so long before the injury that the defendant’s officers ought to have known and repaired the defect in the exercise of ordinary care; (7) that the plaintiff was not guilty of contributory negligence; (8) that the plaintiff’s damages were $1,000'. A motion to set aside the verdict and for a new trial was overruled, and judgment rendered for the plaintiff upon the verdict, and the defendant appeals.</p>

<p>Appeal from a -judgment of the circuit court for Calumet county: Geo. W. Buehell, Circuit Judge.</p> <p>About May 25, 1901, the plaintiff sold to the defendant a farm and personal property at an agreed price of $9,000, and received from the defendant three certificates of deposit— one in the First National Bank of Milwaukee, $1,500, and two in the German Exchange Bank of Chilton for $3,000 and $200, respectively; also $300 in money, and a mortgage back for $4,000. The Milwaukee certificate of deposit was duly cashed. The two certificates in the German Exchange Bank were payable on demand, but, according to their terms, drew interest only in case they ran three months, to wit, until July 16, 1901. The plaintiff paid defendant the amount of accrued interest to day of transfer. At the time of the purchase all of the certificates were indorsed in blank by the defendant, and delivered to the plaintiff. On July 16, 1901, the $3,000 certificate of deposit was transferred by plaintiff to Citizens’ Bank of Oconto. Nothing was done with the $200 certificate. On Jnly lJth, at the close of business hours, the German Exchange Bank of Chilton was closed by the state bank examiner. The plaintiff shortly thereafter tendered back the $3,000 and $200 certificates of deposit, and brings this action to recover so much of the purchase price of the land. The court found that there was no express agreement between the parties that the certificates should be received as part payment of the purchase price, and concluded from that fact that they were not so received, and that $3,200 of the purchase price, with interest, was still due, for which judgment was rendered against the defendant, who appeals.</p>

<p>Appeal from an order of the circuit court for Calumet county: Jakes J. DicK, Judge.</p> <p>This is an appeal from an order refusing to quasb tbe proceedings for writ of mandamus. This proceeding was insti-tiitecl by relators, wbo respectively claim to be tbe duly elected supervisors from the three wards of the city of Chilton, at the election held in that city April 2, 1901. Their election to office, .and that they qualified as supervisors for their respective wards, was certified to the county clerk of Calumet county by the clerk of the city on April 3, 1901, and -filed in the office of the county clerk on April 5, 1901.. The relators severally appeared at the opening session of the county board of supervisors of Calumet county on November 12, 1901, and demanded, and assumed to exercise, the right to participate in the proceedings of said county board of supervisors as supervisors of their respective wards. The board of supervisors by resolution refused to allow relators to participate in the proceedings, and declared the mayor of the city of Chilton, under the city charter, to be the sole representative in the county board of supervisors. Relators seek in this proceeding to command said board to admit them to membership in the board of supervisors, and permit them to participate in the proceedings thereof.</p>

<p>Schools and school districts: Contracts with teachers: Authority of hoard: Stare decisis.</p> <p>Acting under sec. 438, Stats. 1898 (providing that the school district hoard shall contract with qualified teachers, specify in the contract the wages per week, month or year to be paid, and when completed file the contract, with a copy of the certificate of the teacher so employed attached thereto, with the clerk), and sec. 430 (providing that the voters at the annual school district meeting shall have power to determine the length of term a school shall be taught in their district the then ensuing year, which shall not be less than six months, and whether such school shall be taught by a male or female teacher, or both, and whether the school money to which the district shall be entitled from the school fund income and from the town shall be applied to the support of the summer or winter school or a portion to each, but if such matters shall not be determined at the annual meeting, the district board shall determine the same), the district board, on June 13, duly entered into a written contract with plaintiff, a qualified school teacher, to teach its high school for the ten months commencing September 4, next. At the annual school meeting held on the intervening July 3, a resolution was passed directing the district board to cancel the contract with the plaintiff, and employ another teacher. Plaintiff, when notified of the action of the annual meeting, refused consent thereto, and attempted to carry out the contract on September 4, but was prevented from so doing by defendant's officex-s, and expelled from the school building. Held,, that the power of the district board to contract with plaintiff was general, and (in the absence of contrary directions by the voters at the last annual meeting upon the special subjects prescribed by said sec. 430, and subject to their power at the next meeting, or of the new board, to determine with respect to such special subjects), the school district was liable to plaintiff for breach of the contract made by the district board.</p>

W. BueNell, Circuit Judge. Taxpayer’s action to restrain defendant city and its officers from consummating a contract to purchase a tract of land just outside the corporate limits of the city, from which to obtain stone for manufacturing crushed rock for city purposes. The complaint contained all the necessary allegations to raise the question of whether the city possessed power to do the act sought to be prevented.

<p>Appeal from a judgment of the circuit court for Manito-woc county: Michael KiRwaet, Circuit Judge.</p> <p>Plaintiff orally agreed with defendant Carl Hecher to erect for him a barn of prescribed dimensions and construction, upon a foundation and out of materials to be furnished by Hecher, for the sum of $125. The foundation and materials were provided, and plaintiff proceeded with the contract so far as to have raised the harn and partly inclosed the upper story, so as to be ready for the receipt of hay, when, by an extraordinarily violent storm, the structure was substantially-blown down and destroyed, leaving only a few uprights standing, which, however, had to be taken down, in order that the sills might be straightened and replaced upon the foundation. The parties had some negotiation looking to the replacement of the building in its condition when destroyed, and a division between them of the expense of so doing; but, as the court finds, no agreement was reached. The plaintiff went on and rebuilt the bam substantially according to original specifications, except as to time. He brought this suit, alleging merely the erection of the barn, and an agreement to pay therefor $211.32, for which he claimed judgment and lien. The court allowed judgment as follows: The value of erecting the barn, as measured by the price stipulated in the contract, $125; the value of the- work of rebuilding it to the point where the work had progressed before the storm, $65.15; extras for granary, $10; from which he deducted $10 for certain omissions; total $190.15, plus interest and costs— from which judgment the said defendant Hecker appeals.</p>

This is an,appeal from an order overruling a demurrer to plaintiff’s complaint. The action was brought to recover damages for a personal injury which plaintiff alleges was the result of the unsafe condition of defendant’s street.

<p> Pleading: Counterclaim: Statutes: “Connected with the subject of the action." </p> <p>1. In an action of trespass vi et armis, the transaction set forth in the complaint as the foundation of plaintiff’s claim was the wrongful and unlawful breaking and entering the close, of which the plaintiff was at the time in the quiet and peaceful possession, and malicious prosecution and conspiracy in support of such conduct. The defendant by equitable counterclaim sought to establish title to the locus in quo in himself, and to have plaintiff’s assertion of title adjudicated to be unfounded. Held, that such counterclaim did not consist of a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, nor was it connected with the subject of the action as required by sec. 2656, Stats. 1898.</p> <p>2. Such counterclaim is also demurrable because, if established, it would in no way qualify or defeat the judgment to which the plaintiff might otherwise be entitled.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: Michael Kiewabt, Circuit Judge.</p> <p>This is an action to recover for personal injuries. The defendant is a foreign corporation operating an extensive coal dock and yard in-Manitowoc. On the night of October 18, 1899, the plaintiff, then being eighteen years of age, was seriously injured while operating a small grip car in the defendant’s yards. The plaintiff had worked for the defendant in its yard for about a year and a half before the night of the accident, but his work had been that of a laborer shoveling coal into cars on the ground floor of the yards. It appeared that there was in the defendant’s yards a large trestle or platform, some twenty feet above the ground, upon which men worked, and where coal was received from vessels into hoppers, from which it was emptied into small grip cars which ran upon a tramway, and were propelled by an endless cable, about three-quarters of an inch in diameter, made of steel wire, and about half a mile long, which was running continuously between the rails upon which the cars ran. This part of the defendant’s premises was called by the men “upstairs.” The plaintiff had never worked upstairs in the yard, but upon the night in question was asked by the foreman, Adler, if he did not want to work upstairs. He at first made some objections, on account of inexperience with the machinery, but finally consented. When he commenced to work that evening he was told to fill cars from hopper No. 1, and send them forward to the scales, about 100 feet distant, to be weighed. This duty involved opening the hopper and letting the coal therein run out into the tram car, and, when the tram car was full, pulling up the endless cable with a hook a few inches into the grip which extended down from the front of the tram car, which grip was operated by a lever handle extending out from the tram car beyond the side of the car. When this lever was lifted up, the grip was opened, and the cable dropped; but, when the lever was pressed down, the grip was closed, and the car propelled with greater or less speed, according as to whether the grip was tightly closed, or only partially closed, so as to allow the rope to slide through without moving the car at the same rate at which it was going. There was some dispute as to how much instruction with regard to his duties was given to the plaintiff, but it is agreed that he was told that he must not let the cars bump into each other. It appears that there was a rope hanging nearby the place where the plaintiff was at work, which could be pulled if it was necessary to stop the cable, but that he was not told of this. His duty, after the grip car was full, was to grip it onto the cable and send it forward to the scales, where it was to be weighed; ungripping it at a sufficient distance before reaching the scales so that the momentum would carry it to the scales. He did his work successfully for several hours, when he met with the accident in question. His own testimony tended to show that at the time of the accident, having loaded a car, he gripped it onto the cable for the purpose of sending it forward to the scales, and. was walking by the side of the car, ready to ungrip it at the proper point so that its momentum would carry it to the scales; that when he reached a point about thirty feet from the scales he attempted to ungrip the car, there being another car immediately ahead of him, and about twenty-five feet distant, and a fellow workman in front of that car; that, when he attempted to ungrip the cable by pulling up the lever, the cable did not drop, but, on the contrary, the car started faster; that the plaintiff then became excited, fearing a collision, and attempted to dislodge the cable from the grip with the hook in his' hand, leaning forward for the purpose, and while so engaged he did not notice the rapidity with which his car was approaching the car ahead, and while he was still trying to nngrip his own car his head was caught between the two cars, and his skull was fractured, and he was otherwise severely injured. The jury returned a special verdict by which they found (1) that the plaintiff was injured at the time and in the manner stated; (2) that at the time of his injury he properly opened the grip by means of the lever; (3) that the cable was in such a defective condition that broken wires or strands therein stuck in the grip and prevented it from dropping when the plaintiff opened the grip; (4) that the plaintiff had no knowledge or experience in the work before the night on which he was injured; (5) that the defendant did not give the plaintiff any instructions as to the operation of the cars, or the dangers therefrom; (6) that the defendant knew, through its foreman, that the plaintiff was a minor, and also knew the extent of his knowledge and experience in the work; (7) that ordinary care required that the defendant should have instructed the plaintiff as to the operation of the cars, and the dangers therefrom; (8) that, under the circumstances, and considering the plaintiff’s age and experience, the danger of attempting to detach the cable from the grip in the manner which the plaintiff adopted, was not open or obvious to the plaintiff; (9) that the defendant knew of the defective condition of the cable in time to have removed the same before the plaintiff was injured; (10) that the plaintiff did not know of such defective condition, nor by the exercise of ordinary care should he have known thereof; (11) that plaintiff did not know that the defective condition of the cable sometimes prevented it from dropping down from the grip when opened by the lever, nor should he have known that fact by the exercise of ordinary care; (12) that the defective condition of the cable made the operation of the cars more unsafe than it would have been, had such defect not existed; (13) that defendant’s neglect to remedy the defect in the cable was the proximate cause of plaintiff’s injury; (14) that plaintiff was not guilty of contributory negligence; (15) that his damages were $4,100. The defendant moved to correct the special verdict by changing certain answers, and also to set aside the verdict and for a new trial, both of which motions were overruled. Judgment was entered for the damages found upon the verdict, and the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Sheboy-gan county: Michael Kirwan, Circuit Judge.</p> <p>Action to recover damages for a personal injury. January 19, 1901, plaintiff, a laborer twenty-six years of age, while working for defendant upon its coal dock, assisting in the removal of coal from under a trestle tbat bad been weakened by fire, was injured by the structure falling, one of the timbers striking him, breaking his right arm, bruising one of his feet and other parts of his body, particularly his head, the latter injury causing some mental impairment. Plaintiff’s claim was that the defendant knew that the trestle was unsafe and permitted plaintiff, without warning him of the danger, to work in the vicinity thereof, where he was liable to be injured by the trestle falling, and that he pursued his employment with due care up to the time the injury occurred. Defendant’s claim was that the trestle was not dangerous; that no conditions were known to it or reasonably chargeable as within its knowledge, rendering the trestle unsafe before it fell, and that the accident was caused by the negligence of plaintiff' and his fellow-servants in that they loosened a large lump of coal from the top of the coal pile, which was under the track of the trestle and around the supports thereof, causing the .same to roll down and strike one of the supports near where they were working, by reason whereof the trestle fell and plaintiff was injurd.</p> <p>There was evidence undisputed or tending to prove thus: There was a fire upon the coal dock which commenced December 31st and lasted some time. There was a long coal shed on the dock, in which was stored the stock of hard coal. Such shed was totally destroyed. In the open yard was a trestle from the top of which soft coal was dumped upon the surface of the dock, and such trestle was so injured that a portion of it had to be taken down. The trestle was some over sixteen feet high, made of ten by ten posts set about twenty feet apart both ways, with cross-timber caps and two lines of three by ten inch plank placed on edge parallel with each other at right angles with the caps, the planks being fastened together, forming the bed of the tram track on which coal ears were conveyed to the point where it was desired to dump coal upon the dock. On the day of the injury plaintiff and others were at work removing coal from the pile near the point tip to which the trestle had been removed. The top timber of the section of the structure where the work was in progress was heavily loaded with ice, and had been for some days, caused by water being thrown thereon at the time of the fire and freezing. The caps on top of the posts of the trestle were fastened by spikes. They were not mortised to the posts. The construction was such that if the top of a post became burned, causing the spikes to loosen their hold upon the cap, a heavy chunk of coal rolling down from the top of the coal pile against such post was liable to displace it, allowing the superstructure to fall. Some time before the accident defendant’s foreman examined those parts of the trestle claimed upon the trial to have been weakened by fire so as to render it dangerous. ITe had full opportunity to see all the defects that existed. He was the person relied upon by the defendant to look after the safety of the working place of the men. The top of the post near where plaintiff was working was partly destroyed by fire. The destruction was such that the cap no longer held it firmly in place. It was no part of plaintiff’s business to observe that. The foreman was relied upon to look after such matters. The timbers were so discolored by fire "and so covered with ice that the condition of the top of the post which gave way could not readily be seen from the place where the plaintiff was working when the trestle fell. Some days before the accident he had assisted in removing that part of the trestle that was taken down.</p> <p>The evidence tended to show that the immediate circumstances of the accident were these: One of plaintiff’s associates, by direction of the foreman or in the performance of his regular duties, loosened a large piece of coal and ice from a point near the top of the pile. It rolled down, striking the trestle post which was damaged by fire, whereupon it moved out of. place at the top, allowing the superstructure to fall. As it fell plaintiff was struck by one of the timbers, breaking the radius of his right arm, inflicting three scalp wounds on his head, injuring somewhat one of his ankles, and injuring, to some extent, his neck and back. lie was treated for his injuries in a hospital for a period of three weeks, subsequent to the accident. There were indications of some considerable injury to the brain as a result of the direct injury to the neck, back, head and nervous system. There was no discoverable fracture of the skull.</p> <p>The cause was submitted to the jury for special verdict. They found, in effect, that at the time of the accident the trestle was unsafe to the knowledge of defendant’s foreman, Roth; that such condition was the sole proximate cause of the accident, and that plaintiff’s damages were $4,208.33. Judgment was rendered in his favor accordingly.</p>

<p> Deeds: Mutual mistake in description: Cancellation: Quieting title: Purchaser with notice. </p> <p>Land, already fenced, was conveyed to S. and B., but the description, by mutual mistake, failed to include a certain strip. Thereafter B. conveyed by the same description to S., who directed a surveyor to plat the same. The plat was made according to the descriptions in the deeds, after which S. conveyed the property, exclusive of the strip but intending to include it, to plaintiff. Thereafter defendant discovered that the strip was not included in these deeds, and induced the original grantee to convey the strip to S. and B., and purchased the strip from ¡3. and B., being notified by S. that he must take it at the peril of any rights of plaintiff. Thereafter S. and B. quitclaimed to plaintiff, who brought action against defendant to reform the prior conveyances and compel cancellation of defendant’s deed. Held, that defendant was not an innocent purchaser, but took with notice of the mutual mistake, and plaintiff was therefore entitled to complete cancellation of any claim or right in defendant.</p>

J. Vinje, Circuit Judge. This is an action in ejectment .to recover possession of about 4,000 acres of land in Gates and Chippewa counties. The complaint is in statutory form, and the answer claims title in the defendant under tax deeds.

court for Grant county: Geo. ClekeNtsoN, Circuit Judge. This action was brought to recover the sum of $350 claimed to be due on contract. Plaintiff alleges that he contracted to drill a well for defendant. This well, to be operated by a farm windmill, was to furnish a sufficient water supply for defendant’s farm and stock. Defendant admits the making of the agreement, but asserts that plaintiff wholly failed to comply with its terms. The case was tried before a jury.

<p> Railroads: Nuisances: Maintenance of stoclcyards: Evidence: Bpe- ■ cial verdict: Judgment. </p> <p>1. Under sec. 1798, Stats. 1898, a railway company is bound to receive and transport freight tendered to it for shipment, and provide suitable facilities for receiving and handling the same at any station; under sec. 1801, it is required to maintain a station at every village through which it passes which has a postoffice and a population of 200 or more, and, under sec. 1799a, it must receive for carriage all live stock offered to it from February 1st to September 1st, inclusive, and properly transport the same over its road. Defendant, for a number of years before plaintiff acquired title to his premises, had maintained a stockyard for receiving and shipping live stock, consisting of pens and covered sheds, directly across a sixty-six-foot street from plaintiff’s dwelling. In an action for damages for a nuisance alleged to be caused by offensive odors and noises arising from such stockyard, and to procure the abatement thereof, the evidence was sufficient to sustain findings of the jury, in effect, that the defendant permitted-to be sent over to plaintiff’s dwelling offensive odors and noises, interfering with the physical comfort of plaintiff and his family in the occupancy of said premises. Held, that the questions presented were purely questions of law, and, if the defendant used all reasonable diligence in the location of its stockyard to avoid injury to others, and managed it with improved methods, using all reasonable skill to prevent its becoming a nuisance, it performed its whole duty, and, if injury resulted therefrom to plaintiff, it was damnum aisque injuria.</p> <p>2. In an action against a railway company for a nuisance in maintaining a stockyard at one-of its stations, it is error to exclude evidence showing that there was no other reasonably convenient and practicable location at the station in question for the yard.</p> <p>3. In an action for damages for the maintenance of a stockyard, alleged to be a nuisance, and for its abatement, a verdict which fails to determine the fact whether the location was a reasonably proper one, and also whether the defendant operated the yard with approved methods, and used reasonable skill and diligence in preventing unhealthy conditions and unpleasant noises therein, cannot sustain a judgment for the plaintiff.</p>

<p> Vendor and purchaser of land: Land contract: Foreclosure: Appeal and "error: “Aggrieved party": Right of appeal: Practice: Subrogation: Rights of purchaser at execution sale. </p> <p>1. Tlie right to appeal from a judgment is confined to parties aggrieved in some appreciable manner by the decision involved. If the appellant is a person not so aggrieved, he is deemed not to be within the provisions of the appeal statutes, and the rule is to dismiss the appeal.</p> <p>2. Where, in an action to foreclose a land contract, the judgment in favor of plaintiff provided that an execution purchaser should be subrogated to plaintiff’s rights on paying the amount found due by the judgment, plaintiff is not prejudiced and has not sufficient interest in that matter to maintain an appeal.</p> <p>3. A portion of the land included in a land contract was sold under execution against the vendee, the part not sold being the homestead of the vendee. Subsequently the vendor foreclosed the land contract, and the judgment provided that the execution purchaser might be subrogated to the vendor’s rights on paying the amount due on the judgment. Held, that the court erred in decreeing to the execution purchaser the privilege of redeeming from the land contract and thereby acquiring the homestead rights of the vendee. The limit of acquirement by such redemption should be sufficient to indemnify the execution purchaser for cost of making redemption in excess of the value of the land at th,e time of the execution sale over what he paid for 'the equity therein.</p> <p>4. In such case, in order to work out complete subrogation, the vendee is entitled to the unused value which the execution purchaser did not pay at the execution sale, to indemnify such vendee against being compelled to make up such value in order to save the homestead, and the execution purchaser is entitled to the benefit of the vendor’s lien on the homestead to indemnify himself against loss by being compelled to contribute more than such unused value to save what he acquired at the execution sale from plaintiffs lien.</p>

<p> Waters and watercourses: Ice formed on mill pond: Ownership: Rights of lessee of water poioer in ice: Justices’ courts: Plea of title to real estate: Failure to give bond: Presumptions. </p> <p>1. Tbe title to tbe beds of streams, and tbe title to ice forming on mill ponds created therein, is in tbe riparian owner.</p> <p>2. Plaintiff brought an action to recover damages for taking ice which be claimed to own. He asserted no other right or interest than that secured from the lessee of a mill, and water power appurtenant thereto on which the ice had formed. The lessee had no interest in the ice except his rights as lessee of the mill and water power and to the flow of water. Held, that thereby the lessee acquired no right or title to the soil under the pond, nor any interest in the ice formed of the water of the pond, and that any right or privilege obtained from such lessee by plaintiff to cut the ice in question, conveyed no right to plaintiff superior to the right of any other person trespassing thereon.</p> <p>3. In such case, plaintiff had cleaned or scraped off the ice, and examined it preparatory to cutting it, when defendants cut the ice in question, under permission from the riparian owners. Held, that the acts of plaintiff were not sufficient to constitute a legal appropriation of the ice, and that the ice was in the actual possession of the riparian owners when defendants took possession.</p> <p>4. Plaintiff brought an action to recover damages for taking ice which he claimed to own. He asserted no other right or interest than that secured from the lessee of a mill, and water power appurtenant thereto on which the ice was formed, the lessee having no right or title to the soil under the pond, and hence none to the ice. Held, that if plaintiff had any right to the ice, it was because he had appropriated it and reduced it to possession, making it personal property, and it was therefore error to hold that, since defendant had failed to give the bond required by sec. 3620, Stats. 1898, it must be presumed that plaintiff had title to and possession of the ice.</p>

<p>Appeal from a judgment of the circuit court for Monroe county: James O’Neill, Judge.</p> <p>Action to partially abate a dam. Plaintiff and defendant were owners of improved water powers on Beaver creek, Monroe county, Wisconsin, defendant’s being the lower one. The dams were built about forty years prior to the trial, defendant’s being the one first constructed. Plaintiff’s claim, upon which he recovered, was that when defendant’s dam was authorized and constructed to the height of nine feet above the natural bed of the creek, and the upper dam was built with reference thereto, the backwater from the lower power did not reach the tailwater of the upper one, and between 1897 and 1899 the lower dam was raised about three feet, to the injury of the upper power in that it raised such water so as to flood plaintiff’s wheel and shorten the working head at his power about three feet.</p> <p>There were two trials. On the first a jury rendered an advisory verdict, the findings being in plaintiff’s favor, the increased head of water found, however,-being less than ultimately found. The circuit judge died, rendering a new trial necessary. Upon the second trial findings of fact were made to the following effect: Plaintiff’s dam was built in 1856 and defendant’s in 1855, the latter being authorized and constructed to raise a nine-foot head of water. Such head was not materially increased thereafter till 1897. Subsequently thereto, and chiefly in 1899, when a new dam was put in, the old one having been carried out by high water, a head of water was created three feet higher above the old creek bed than was created by the improvement of 1855 and the head that had been maintained uniformly up to 1897. By reason of the increased height of the'dam thé water was raised at plaintiff’s dam so as to shorten his working head some three feet. In order to restore the former conditions it is necessary to reduce the level of the water at defendant’s dam to a point three feet below the top of the flashboards thereon. The damages suffered by plaintiff up to the time of the trial were $300. Judgment was entered in plaintiff’s favor accordingly.</p>

<p>Appeal from an order of tbe circuit court for Juneau county: J. J. Eeuit, Circuit Judge.</p> <p>Appeal from order sustaining demurrer to a complaint, from wbicb it appears that in the spring of 1889 proceedings were instituted for the creation of a drainage district under secs. 1379 — 11 to 1379 — 31, Stats. 1898, and that, after due notice and appointment of commissioners in accordance with the statute and the necessary report of the commissioners, the court, on January 4, 1900, made its order of confirmation, in which were confirmed assessments so made that they did not become payable until from ten to twenty years in the future, but were to draw interest annually meanwhile, and by said order authorized the issue of bonds payable twenty years thereafter, and drawing interest not to exceed six per cent. After the enactment of the amendment to the sections above mentioned, accomplished by ch. 43, Laws of 1901, upon application by the commissioners and due notice, the court, on May 15, 1901, made an order modifying that of January 4, 1900; such modification being only in certain details, but continuing the theory of the original order, that the assessments should be payable in instalments between ten and twenty years thereafter, and thát the bonds authorized should be payable in the same instalments. The amount of such original assessments was approximately $40,000, and the report of tbe commissioners, confirmed by said orders, declared that the benefits to the lands included in the district exceeded the cost of the improvement. Later, on July 9, 1901, the commissioners presented a petition declaring that an additional amount, exactly equal to the original estimate, to wit, approximately $40,000, was necessary for the completion of the work, and that they had assessed the same upon the same basis as the former assessments. Thereupon, on July 18, 1901, without notice to any parties interested, the court entered order confirming said second assessments, directing that the same fall due in instalments at dates between ten and twenty years thereafter, and draw interest at the rate of six per cent., payable annually, and authorizing the commissioners to issue bonds bearing interest not to exceed that rate, and payable in instalments of the same years as the assessments. The complaint alleged these proceedings illegal and beyond the jurisdiction of the court, and prayed injunction against the drainage district and the commissioners, prohibiting them from taking any steps to collect said assessments, and from issuing said bonds under either of said orders.</p>

M. Webb, Circuit Judge. This action was commenced by Nellie M. Guenther against the appellant and respondent, as defendants, for an accounting and a partition of lands described in the complaint. In April, 1900, Nellie M. Guenther and Dunbar and Parcher purchased a tract of timber land.

<p>Appeal from an order of the circuit court for Portage county: Chas. M. Webb, Circuit Judge.</p> <p>This is an action of unlawful entry and detainer brought to remove tenants'for failure to pay rent. The complaint alleges the leasing by written lease of a farm of several hundred acres by the plaintiff to the defendants for a term of five years from April 22, 1901, upon a rental of $1.25 per montli per head of milch cows and sixty-two and one half cents per month per head for heifers kept by the defendants upon the farm, payable at the end of each month. The complaint also alleges the default for several months -in the payment of rent and the giving of due notice in writing requiring the payment of rent or the surrender of possession. The material parts of the defendants’ answer are as follows:</p> <p>“They allege that they entered into a certain contract with the plaintiff, a copy of which is hereunto attached, marked ‘Exhibit A,’ and made a part of this answer. That it was understood, and by said contract is in fact made a condition upon which the rentals in Exhibit A mentioned should become due and payable, that the plaintiff should do and perform certain things in said contract particularly set forth, which conditions to be performed were and are conditions precedent or at least concurrent to any performance of said contract on defendants’ part; and these defendants allege that the plaintiff has neglected and failed to perform the said contract on his part, and thereby rendered it impossible for these defendants to perform their part of said contract. That it was absolutely, entirely, and wholly impossible for defendants to pay any rent until the said conditions to be performed by plaintiff were performed, which conditions, as respectfully appears in Exhibit A, are that plaintiff should furnish pasture for 100 -head of cows, and at least 100 acres of cleared land, a creamery, and silo, all of which he has not done, and thus has prevented the defendants performing their part of the contract. That the plaintiff is absolutely and completely in default in all of the conditions to be by him performed as specified by Exhibit A. That there is no rent due from these defendants to the said plaintiff. Except as herein admitted, these defendants deny each and every allegation in the complaint.”</p> <p>The contract attached to the answer is dated April 22, 1901, and by its provisions the plaintiff agrees to rent or lease to the defendants for a term of five years the plaintiff’s farm in the town of Linwood, Portage county, at $1.25 per month per head of milch cows and sixty-two and one half cents per month per head of heifers, the same being in lien of any other charges for rent. The contract then provides for the payment of $875 by the defendants to the plaintiff for thirty-three head of cattle and $625 for horses and tools npon the farm,* and also that the defendants are to convey to the plaintiff a certain described farm in Lincoln county for $2,500, the snm of $1,500 thereof to be applied npon said purchase of stock and tools, and the balance paid in cash or its equivalent. The contract then proceeds as follows:</p> <p>“The total rental of said farm of the party of the first part is to be one and 25-100 dollars per head of milch cows. Said party of the first part is to bnild ¿ building suitable to be used for a creamery, not larger than 20x30 feet; also to provide pasture for one hundred (100) head of cattle, and cleared land enough to provide feed enough for one hundred (100) head of cattle, not less than one hundred acres. Said party of the second part is to provide himself with one hundred cows within one year from date of this instrument. This lease may be renewed for five years when each party to this agreement is to double the capacity of his part of the agreement. Said party of the second part is to have the privilege of raising calves, pigs land colts, without further charges. Said party of the first part is to build a silo sufficient to provide for ensilage for said one hundred cows, during this present summer of 1901; also to furnish stalling and flooring to the remainder of the present barn. Said party of the first part is to have the right to leave his registered stock on the farm, said party of the second part to keep and provide for. them the same as for his own, and pay for the use of the cows the same as for his own, that is, one and 25-100 dollars per month each, each party to this agreement to have one half of the increase. Also the party of the second part is to have the privilege of cutting any down timber for the use of house and creamery fires as long as the down timber lasts or until this lease shall have expired.”</p> <p>A general demurrer to the answer was sustained, and the defendants appeal.</p>

<p>Appeal from a judgment of the circuit court for Wood county: Citas. M. Webb, Circuit Judge.</p> <p>Action to construe the will of George Walter, deceased, which, so far as material to the question raised, is in the following language:</p> <p>“Eirst. After the payment of my just debts and funeral expenses, I give, devise and bequeath to my beloved wife Mary, in trust for herself and my children, all of my' estates, both real and personal with full power to continue my business if for the best interest of my estate.</p> <p>“Second. I hereby nominate and appoint my friend John J. Sherman the executor of this my last will and testament/’ etc.</p> <p>The testator left surviving the plaintiff, who was his widow, and the following children: George Walter, Laura L. Roemer, Martin T. Walter, Lena 0. Walter, Anna M. Walter, Ghas. W. Walter, TIenry F. Walter, Rose T. Walter, and Edgar B. Walter, all being minors except one, and properly made defendants. Such proceedings were duly had in the settlement of the estate that the property was assigned in due form to Mary Walter in trust, according to the language of the will. She accepted the trust. Subsequently she resigned, and the county court appointed defendant Christian Walter in her place. He accepted the trust and took possession of the property. He thereafter managed the same without question of his right in the matter till this action was commenced. Such property consisted mainly of a brewery in operation, and the personal property in and for use in connection therewith. The value thereof was about $100,000. It was vital to its preservation that the brewery should be kept in continuous operation. It was not susceptible of division by conversion into money. The claim of plaintiff was-that no valid trust was created by the will; that by a proper construction of the instrument she took the whole title and beneficial interest in the property. The claim on behalf of the defendants was also that the will did not create a valid trust, though there was an attempt to do so, and that the legal result was to vest the full title to the estate in the mother and children in equal portions.</p> <p>The court decided as follows, in effect: The testator had no intention of vesting the whole beneficial interest in his estate in his wife. He expected that the harmonious relations theretofore existing in his family would continue. lie knew the character of his property was such that the best results for his family could be obtained by operating the same without any divided management. He could not foresee whether it would be for their best interests to keep the property in specie or' convert it into money and invest the same, or divide the proceeds at some time in the future. He thought best to leave a choice of courses to his wife and children. He did not'leave the matter, however, exclusively to his wife. He directed the business to be continued if thought best. His purpose was that the business should be continued if all agreed to that and such course should seem to be for the best, and that if a decision should be at any time arrived at not to continue the business, the property should be sold and the proceeds reinvested or divided, as might seem best. His idea was that so long as the property should be kept together it would be best to have one of the members dominant in the management thereof. He left the precise details of the trust to be determined by circumstances as they might arise. The purposes of the testator are not set forth with sufficient particularity to satisfy the statute. The will created a mere passive or dry trust. ' Therefore it must be considered as if there were no trust at all and the property was given direct to the beneficiaries. Judgment was ordered and rendered accordingly, and the plaintiff appealed.</p>

<p>Appeal frcm a judgment of the circuit court for Waupaca ‘County: Chas. M. Webb, Circuit Judge.</p> <p>Action of replevin commenced in justice court to recover .-a stock of merchandise held by defendant as sheriff under writ of attachment. James Croak was a merchant at New London, October 4, 1902. ITis stock of merchandise was ¡taken by a mortgagee under chattel mortgage, and advertised for sale October 17, 1902. Plaintiff purchased the stock October 7th for $525, and took possession October 8th. In making the purchase he dealt with one Walsh, an officer in possession of the stock under the mortgage, who had authority from Croak to make a private sale. Plaintiff made inspection of the city records, and found another mortgage lien a,gainst the stock. Under authority of Croak he paid the mortgage debts, amounting to $321.40, and $65.45 on a claim on winch an attachment had been issued and levy made on the-goods. The balance, $138.15, was paid to Mr. Croak. Prior to this payment, plaintiff had no knowledge concerning Croak’s indebtedness aside from these claims, nor any information concerning his financial situation. This action was begun on the day after plaintiff took possession of the’ stock. In the replevin action, under which defendant held the stock, it was charged that the sale to plaintiff was fraudulent and void as to creditors. Upon appeal, the action was tided before the court without a jury. It found in favor off plaintiff, and awarded judgment for the return of the goods, or, in default, to recover the value, and for $6.28 damages- and costs. From this judgment defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Dane county: R. G. Siebecker, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. G. Siebecker, Circuit Judge.</p> <p>In 1901 tbe relators were engaged as copartners in tire business of banking in the village of Sun Prairie, Wisconsin. The assessor for such village in such year valued the personal property of the association subject to taxation, consisting of mortgages, accounts, credits, bonds, notes, and other securities, at $24,000, and their other personal property, consisting of bank fixtures and furniture, at $1,000. Due application was thereafter made to the board of review to reduce such assessment, and in support thereof J. M. 'Batz, cashier, was sworn and testified before the hoard, in effect, thus: The assets of the association consisted of furniture, fixtures and bills and accounts 'receivable, and exceeded the liabilities to depositors by $2,116.11. The association is unincorporated. It has an unincumbered capital of $25,000, consisting of real estate. It has no cash capital. The partnership business is carried on under an arrangement in respect to capital whereby each member contributed real estate in that regard to the amount of $8,333.33. One put in two stores, the bank building and a dwelling house in the village, one part of his farm in the town of Bristol, and the other land in the town of Sun Prairie. A deed was made by each and all were delivered to the cashier. One deed was not completed by reason of the incapacity of the grantor’s wife to execute the same. The bank capital is unimpaired. The cashier’s evidence was corroborated by that of a member of the association. After such evidence was taken, notice of the intention of the board to assess the capital stock of tbe bank was waived. Thereafter the board adopted a resolution for the assessment of the capital stock of the bank, valued, as stated in the evidence, at $25,000, to the individual members of the association, $8,333.34 to George P. Batz, $8,333.33 to Peter Batz, and a like sum to Erharcl Batz. The prior assessment of the property of the bank, of $24,000 and $1,000, was then on motion released. Thereafter the board caused to be entered upon the assessment roll as capital of the association a'sessments corresponding to the resolution aforesaid, except that the property was called capital. Such proceedings were thereafter had that such action was duly presented upon a writ of certiorari to the circuit court for review, where, upon a hearing duly had, it was affirmed.</p>

<p> Corporations: Managing officer: Duties and liabilities: Master and servant: Contract of employment for “full time:” Ambiguity: Negligence of officer: Collection of claims: Equity: Accounting: Agency. </p> <p>1. The managing officer of a corporation owes to the corporation the duty of absolute good faith, and such diligence, judgment and exertion as the ordinarily capable, diligent, and prudent man would give under like circumstances.</p> <p>2. Among such circumstances are the character of the service to be rendered, the conditions under which it was compelled or expected to be performed, the means therefor, or which were within the officer’s power, and the extent to which attention to detail was consistent with proper consideration and direction of the more important general policy.</p> <p>3. An agreement with a corporation by a managing officer “to give his full time to the company’s service” is, in its nature, ambiguous, and does not require twenty-four hours a day of the officer’s time, nor, indeed, every moment of his waking hours, but it does require that he shall make the employment his business, to the exclusion of another business such as usually . calls for the substantial part of a manager’s time or attention.</p> <p>4. Plaintiff, as managing officer of defendant corporation, agreed “to give his full time to the company’s service.” He had previously been in business as a merchant, which he gave up. He devoted his entire business days, of approximately nine hours, persistently to the defendant corporation, and, in addition, spent approximately one half of his evenings in devotion thereto. Held, that the trial court was justified in finding that the evidence did not sustain an allegation of failure to devote his full time to defendant corporation, although, at the same time, he looked after his mother’s estate, the financing of another corporation, and occupied a place on the directory of a bank, there being no evidence of pecuniary loss to defendant therefrom.</p> <p>5. Plaintiff, the managing officer of defendant corporation, on learning that the secretary had allowed another corporation to become a large debtor, called upon the book-keeping department of defendant to furnish him a statement of the amount of that debt, and promptly collected the amount so shown. Held, that no negligence on the part of the managing officer was thereby shown, although the debt was larger by reason of interest charges not shown by such statement.</p> <p>6. Where the managing officer of a corporation secured loans of money to it through his personal connections, at the same rate of interest at which he permitted his mother’s estate to borrow money from the corporation, he is not liable for a failure to collect interest from the estate at the rate which the corporation was then paying for money at a bank- there being no showing that the amount of money received through the manager’s personal efforts was not equal to the amount loaned to the estate.</p> <p>7. Where the managing officer of a corporation directed the secretary to collect an overdue amount against a corporation in which the manager was interested, and the secretary reported the amount had been assumed by an entirely responsible person, who afterward repudiated the alleged transaction, and entries were made on the books in accordance with the secretary’s statement, it was not negligence on the manager’s part to omit to discredit the secretary's statement, and investigate the facts as to the alleged assumption of such debt.</p> <p>8. Where the managing officer of a corporation did not discover that its secretary had been withdrawing funds in excess of his salary until this had been going on for seven years, and then permitted the secretary to remain in office for several months and appropriate more funds, under the belief that he might reform and reduce his overdrafts, it is within the judgment of the trial court, in drawing inferences of fact, to hold that the ordinarily diligent 'man, in the managing officer’s position, would have discovered the depletion of the corporation’s funds long before it was done, and supports a conclusion that the whole amount of the overdrafts was damage resulting from the manager’s neglect to discover it in proper time, for which he was liable to the corporation.</p> <p>9. The secretary of a corporation, on the day he was discharged, entered upon the corporation books a certain sum stated to be a number of turned accounts, viz: where the secretary had receipted the accounts of debtors to the corporation in consideration of the discharge of his own indebtedness to such debtors. The items composing such sum were not in evidence, were not entered on the books, and it did not appear that the managing officer of the corporation ever had any knowledge thereof, or information of any fact in regard thereto to put him upon inquiry. Held, that there was nothing of negligence on the manager’s part to which can be ascribed the loss to the corporation of those particular accounts, if they were lost.</p> <p>10. In such case, the fact that the debtors of the corporation gave as consideration only a cancellation of the secretary’s personal liability to them, charged them in the fullest manner with notice of his breach of duty as an agent, and they remained, as before, the debtors of the corporation.</p>

<p> Setoff: Contracts: Bonds: Conditions: Construction: Breach: Principal and surety: Liability of surety. </p> <p>1. Except in cases for equitable consideration, the right of statutory setoff must exist between all the parties plaintiff and all the parties defendant, and from and to those persons only who are parties to the action.</p> <p>2. Where one of the co-obligees in a bond assigned his rights therein to the other obligee, and such assignee brought action on the bond, the indebtedness evidenced by a note given to the obligor in the bond by the assigning obligee and another cannot be set off against the liability arising on the bond.</p> <p>3. A contract provided, among other things, that the buyer should have possession of certain “cedar posts and poles,” should sell the same, and deposit the proceeds to the amount of $3,000 in a designated bank in two instalments, on specified dates. A bond was given, conditioned that should the property, “when sold, not bring the amount of $3,000,” the obligor and surety “will pay the deficiency if any, in the manner above set forth;" and that “this bond is given to secure the performance of a certain contract entered,” etc., between the parties. The bond was further conditioned that the parties thereto should well and truly carry out all of the above agreement without fraud or delay. In an action on such bond there was no evidence that any sum was so deposited to the credit of the obligee at the said bank. Held, that the failure to do so was a breach of the contract and bond, and gave the obligee the right to demand payment from the principal and surety on the bond.</p>

This is an action of replevin to recover twenty and one-half barrels of Minnesota patent flour. The answer was a general denial. The action was tried before a jury.

<p> Default judgments: Vacating: Discretion: Costs: Immaterial error: Justices' courts: Second adjournment: Loss of jurisdiction. </p> <p>1. While a trial court has broad powers as to judgments by default, enabling it to relieve a party therefrom for fraud of one obtaining the judgment, or surprise, mistake or excusable neglect, upon application therefor being seasonably made, it cannot properly act arbitrarily in such a matter. Its action should always be based upon some legitimate ground, the end in view being to promote justice along the lines of those remedies for wrongs which the .law affords to litigants.</p> <p>2. If the affidavits upon which an order. setting aside a default judgment is granted' do not indicate some injustice to the moving party, actual or probable, and some reasonable excuse for his failure to be present at the trial of the cause, and for not moving to set aside the judgment promptly on receiving notice thereof, such order must be held erroneous.</p> <p>3. The taxation of costs is a mere incidental effect of a judgment. Failure to obtain a hearing at the taxation thereof, or the excessive amount in fact taxed, furnish no ground for setting aside and vacating a judgment.</p> <p>4. On a motion to set aside and vacate a judgment, it appeared, among other things, that the cause had been on the calendar three terms and was finally called for hearing and judgment of default entered in plaintiff’s favor for costs; that the action came to the circuit court on plaintiff’s appeal from a judgment of a justice’s court dismissing the action because the justice had lost jurisdiction, and that the appeal had been taken without any affidavit making a new trial in the circuit court possible. It was stated in the moving affidavit that defendant had a good defense to plaintiff’s cause of action. The circuit court granted the motion on the grounds that the failure of defendant to he present was sufficiently excused, and that the costs taxed were excessive. No complaint was made that the judgment itself was wrong. Helé, that whether plaintiff had a good cause of action was not directly involved in the motion, the only question presented hy the appeal he'ing whether the justice properly decided that his jurisdiction had terminated.</p> <p>5. On appeal from a justice’s judgment plaintiff secured a default judgment of reversal. Defendant moved to set aside and vacate the judgment on grounds excusing his failure to he present on the trial. The moving affidavit, verified hy defendant’s attorney, alleged that it was understood between the attorneys for the respective parties that the case would be taken up for trial only on notice; that the cause had been allowed to lose its place on the calendar, and was taken up by plaintiff’s attorney and judgment obtained, defendant’s attorney having no information thereof; that two days thereafter notice of taxation of costs, with proposed cost bill, was served on defendant’s attorney; that defendant’s attorney attended at the time and place noticed for taxation of costs, but plaintiff’ attorney being absent he went away, after telling the clerk to notify him, and he heard nothing more about the matter until nine days later his client informed him that execution had issued. Prior to judgment of reversal plaintiff had endeavored to avoid the effect of the appeal by satisfying the judgment of the lower court, and had brought his action in that regard to the attention of the circuit court. Helé, that no excuse was stated justifying an order setting aside and vacating the judgment of reversal.</p> <p>15. In such case, it conclusively appeared that the reversal of the justice’s judgment was not the ground of the plaintiff’s complaint, but, on the contrary, failure to be heard on the taxation of costs, and that the only legitimate objection to the costs, as taxed, was the inclusion therein of a sum about equal to reasonable terms for setting aside the taxation. Helé, that if the trial court had allowed the judgment for costs to stand as taxed no injustice would have been inflicted.</p> <p>7. Sec. 3631, Stats. 1898, provides that in justices’ courts no second adjournment shall be allowed, unless the moving party shall satisfy the justice by oath that he cannot proceed to trial for want of some material witness, that he has used due diligence to obtain the same, etc. Subd. 11, sec. 3626, provides that if an amendment be made after the- joining of issue, or answer be made after adjournment, and it be made to appear to the satisfaction of the court by oatb that an adjournment is necessary to the adverse party in consequence thereof, an adjournment shall be granted. In an action in justice’s court, it appeared that the defendant demurred to the complaint, that the cause was adjourned one week, and that on the adjourned day the demurrer was overruled and defendant answered, whereupon the justice granted plaintiff’s motion for an adjournment as terms of allowing the answer to be filed, plaintiff showing grounds for such adjournment. Held, that it was error for the justice to dismiss the action on the ground that by such second adjournment he had lost jurisdiction.</p>

<p> Criminal law and practice: Adultery: Evidence: Husband and wife: Competency as witnesses. </p> <p>1. Tile rule that neither husband nor wife can testify for or against the other is confined to cases where the testimony, if given, would he by one directly for or against the other, such other being a party to the litigation.</p> <p>2. In a prosecution for adultery where separate informations are filed, the husband of defendant’s partner in crime is competent to testify as to his marriage, and generally as regards the alleged offense.</p>

<p>Repoeted from the municipal court of Dane county: Anthony Donovan, Judge.</p> <p>Defendant was tried in January, 1903, in the municipal court of Dane county, on charge of adultery. The prosecuting witness having testified to the act, and the defendant Raving denied it, the state, in rebuttal, introduced impeaching evidence of the bad reputation of defendant for truth and veracity at tbe village of Oregon, where be resided front about March, 1901, to about June, 1902. Defendant then offered, and the court received, evidence of a witness that he was familiar with defendant’s reputation for truth and veracity at the city of Stoughton, where he had resided all his' life, up to March, 1901, and that it was good. Thereupon the state moved to strike out that testimony, and the court granted the motion, for the reason that the proper foundation-was not laid, and because said witness had stated that he did not know the reputation of the defendant at Oregon, where-he had established his last reputation; that'ithe evidence must be confined to reputation of the defendant in the vicinity where he had a last fixed domicile, and had acquired a reputation. Other witnesses, prepared to testify to the same effect, were therefore not sworn. After a verdict of guilty,, the municipal judge certified to this court the questions: “(1) Did the court err in striking from the record the testimony of the witness from Stoughton? (2) If so, is such error prejudicial to the defendant, Thomas 8. Knight V’</p>

<p>Municipal corporations: Sewage disposal worlcs: Contracts: Bonds:Construction: Breach: Penalty: “Penal sum”: “Liquidated, damages”: Architects and engineers: Powers and duties: Acceptance: Waiver: Entire contract: Failure of consideration:Evidence: Ultra vires: Principal and surety: Release of surety:Material alteration of contract: Extension of time.</p> <p>1. Tlie words “penal sum” in that part of a contract or bond providing for the consequences of a breach thereof are ordinarily to be construed strictly, and as meaning a penalty and nothing more, and, in such case, actual damages must be shown. This ordinary import may be overborne by other parts of 'the contract which demonstrate that the words were used as meaning “liquidated damages.”</p> <p>2. If the sum mentioned in that part of a contract or bond providing for the consequences of a breach be denominated “liquidated damages,” that fact will not be conclusive upon courts; if the sum fixed be largely in excess of actual damages, or if it appear that the sum was fixed to evade usury laws or to cloak oppression, it will be construed as a penalty.</p> <p>3. In such case, where the sum fixed is excessive, and the' damages are wholly uncertain and incapable of ascertainment by any known rule, the courts will consider the sum named as liquidated damages.</p> <p>4. A contract under which an engineering company agreed to instal a sewage purification plant for a city, with certain guaranteed results, provided that, “for the faithful execution of this contract and to make good these several warranties,” the contractor should give to the city a .bond for $25,000, to the effect that each enumerated warranty was a specific warranty, and the principal consideration of the contract, “and that on ' the failure of the company to make good any one of said warranties the said bond shall be forfeited to the said city.” The bond was in the “penal sum” of $25,000, and was conditioned that if the company fully performed “all” the covenants of the contract it should be void. The bond and contract were drawn and scrutinized by lawyers before acceptance. Some of the numerous conditions of the contract were trivial in their nature, and there was embodied a stipulation that if the plant was not completed within a certain time the company should forfeit the sum of $25 per day as “liquidated damages.” Held, that it necessarily appeared that the parties had in mind the difference between liquidated damages and penalty, and that the sum named in the bond must be regarded as a penalty.</p> <p>5. A contract by an engineering company to construct a sewage purification plant for a city, after providing that the work should be completed in strict compliance with the plans and specifications, stipulated that the engineering company should operate the works for three months after the date of their completion, at its own expense, and, after the expiration of that time, if the plant was working “to the satisfaction of the said city engineers,” the city should assume running control and operate it for nine months before accepting the same. The contract then proceeded to specify the degree of purification which the engineering company contracted to produce when the plant was working to its full capacity. Held, that the city was contracting for a plant to purify sewage, not a mechanically correct piece of machinery, and was not bound to accept the plant after three months, and give it the nine-months trial if it was mechanically satisfactory, irrespective of the degree of purification of sewage accomplished.</p> <p>6. In such case, the proof was conclusive and undisputed that the plant completely failed to dispose of the sewage of the city with the results contracted for. Held, that the city engineers had no power under the contract to declare themselves satisfied with the plant, whatever may have been their opinion as to their powers and duties, and, irrespective of such engineer’s report, the city was not compelled to take control at the end of the three-months period, and lost no rights by refusing so to do.</p> <p>7. A contract by an engineering company for the construction of a plant for the purification of sewage for a city provided, if the plant failed to operate as agreed, that the city should have the use of the plant free of cost for one year after its refusal to accept the same. The plant was to be operated three months by the company after its completion, and then, if satisfactory to the city engineers, the city was to operate it nine months before final acceptance. On September 29, after three months’ operation by the engineering company, the plant was tendered to the city for the nine-months trial, and, on the report of the city engineers, the tender was refused. On January 12, following, the engineering company ceased operating the plant and abandoned it. The city engineers reported these facts, and also that the plant was "not giving the guaranteed results, whereupon the city by resolution reciting the facts and the necessity of disposing of the sewage, but disclaiming any acceptance, took charge of and operated the plant for about a year, until another could be constructed. Held, that the city was acting within the contract, and no waiver of any rights under the contract or an acceptance of the plant could be predicated thereon.</p> <p>8. Where a city contracted for a complete sewage purification plant, guaranteed to produce certain specified results, and the plant as an entirety was a failure, and did not dispose of the sewage with the guaranteed results, there is an entire failure of consideration, notwithstanding some parts of the plant performed their work satisfactorily.</p> <p>9. In an action for breach of a contract in failing to construct a sewage purification plant so as to accomplish guaranteed results, it is not error to refuse to strike out various analyses of the effluent, because it appeared that such effluent was taken at times when sewage was being wasted, and was not all passing through the filter beds, where it did' appear that the samples of the effluent were taken from the proper place at times when the plant was in regular operation, and sewage was passing through in regular course.</p> <p>10. While taxpayers whose money is about to be spent, or property owners whose land is about to be charged, may challenge the. legality of municipal acts, and contracts calling for expenditures, on the ground that the proper legal steps have not been taken, persons who enter into a contract with the city stand in a different position. Such persons cannot make the defense of ultra vires or total lack of power on the part of the city to make the contract in question.</p> <p>11. Where a surety company, by the express terms of its bond, has made a contract with a city a part of the bond, it cannot be heard to say that the city had no power to enter into the contract or did not make the contract in the required manner.</p> <p>12. A contract with a city for a sewage disposal plant provided that payments should be made as the work progressed, on monthly estimates by two designated engineers, but such payments were made on the certificate of one engineer alone. A surety company, who had given a bond guaranteeing the contract, interposed such fact as a defense. It appeared that such provision was inserted in the contract for the benefit of the city alone, and that the payments so made were not greater in amount than they should have been if the certificate of both engineers had been exacted. Held, that such payments did not materially alter the contract, nor affect the rights of the surety.</p> <p>13. Such contract further provided that the time for completion “may he extended only hy the previous written consent of the mayor and city engineer for good cause shown.” Held, that such language did not limit the designated officers to granting only one extension, either by direct terms or hy implication.</p> <p>14. When a contract for the construction of a sewage plant for a city, guaranteed hy the bond of a surety company, was entered into, the expectation was that the city would furnish the power for its operation from a certain water power owned hy the city. The only reference to the power in the contract was, that the cost of operation “as the city now proposes to operate the plant shall not exceed” a certain sum. After the contract had been entered into the city installed gasoline engines for power purposes, and thereby produced the required power. Held, that the terms of the contract were not affected hy the change of power so as to release the surety.</p>

<p>Appeal from a judgment of the circuit court for Price county: JohN K. Paeish, Circuit Judge.</p> <p>This is an action of ejectment, commenced November 9, 1901, to recover 760 acres of land described. The complaint is in the statutory form. The defendant answered by way of admissions, denials, counter allegations, and a counterclaim. At the close of the trial the court found, in effect:</p> <p>(1) That the plaintiff claims title tbrougb mesne conveyances under patents from the United States, and bas all the former title to all of the lands, and all the interest and title therein, unless be bas been devested by one or more of the five tax deeds under which defendant claims title.</p> <p>(2) The first tax was issued to Price county March 29, 1899, for the taxes of 1894 on the sale of 1895, and recorded March 29, 1899. The second'tax deed was issued to Price county June 22, 1899, for the tax of 1895 on the sale of 1896, and recorded June 23, 1899. October 17,1899, Price coiinty sold and conveyed by quitclaim deed the lands covered by such tax deeds to the defendant, and the same was recorded on that day, in pursuance of an agreement hereinafter mentioned. The third tax deed was issued to the defendant November 14, 1900, for the tax of 1896 on the sale of 1897, to Price county, and the tax certificates therefor were sold and assigned by the county to the defendant; and the third tax deed was issued thereon to the defendant and recorded November 14, 1900. The fourth tax deed was issued to the defendant June 8, 1901, for the tax of 1897 on the sale of 1898, to Price county, and the tax certificates therefor were sold and assigned by the county to the defendant; and the fourth tax deed was issued thereon to the defendant and recorded June 8, 19'01. The fifth tax deed was issued to the defendant May 17, 1902, for the tax of 1898 on the sale of 1899, to Price county, and the tax certificates therefor were sold and assigned by the county to the defendant; and the fifth tax deed was issued thereon to the defendant and recorded May 17, 1902.</p> <p>(3) The plaintiff has established, by proof, the following defects in the proceedings antecedent to the issuing and recording of said tax deed: (a) None of the delinquent tax rolls returned for the years 1894 (sale 1895), 1895 (sale 1896), 1896 (sale 1897), 1897 (sale 1898), and 1898 (sale 1899) were signed by the treasurer, (b) The affidavits of the treasurers to the respective delinquent tax rolls (except for 1895) were not in the form prescribed, by sec. 1113, Stats. 1898. The column of the year for which the taxes were due was left blank, and the rolls were not filed in the office of the county clerk until June 15, 1899. (c) The statements required to be made by the county treasurer on the first Monday of April in each year — as more fully prescribed in sec. 1130, Stats. 1898 — were not made on that day, and were not filed in the office of the county clerk, for the sales of 1895, 1896, and 1897; and such statements for the sales of 1898 and 1899 were not so filed until November 27, 1901. (d) No proofs of publication of notice of sale for 1895, 1896, 1897, 1898, and 1899 were made and filed as required by sec. 1130, supra; that certain affidavits were filed which failed to show that the “statement,” as well as the “notice,” was published, and also failed to show that the publications were bad “once in each week” for four successive weeks, and failed to show that the Phillips Bee, in which said pretended notice purported to have been published, was a newspaper that bad been regularly and continuously published in that county once in each calendar week for at least two years immediately before the date of such notice, and that no such publications were bad. (e) None of the tax rolls, delinquent returns, and stub books, on which the sales of 1895, 1896, 1897, 1898, and 1899 were based, were filed in the office of the county clerk until June 15, 1899. (f) The county treasurer’s statement of sale for said five years’ sales stated that the annexed statement of lands contained descriptions of lands sold, names of persons to whom sold, amounts for which the same were sold, and the names of owners as far as known; whereas, in fact, said statement only contained one column of names, without any heading, so that it was uncertain whether said column was intended for the names of persons to whom sold or for the names of owners of said lands, (g) The list and notices of expiration of the time to redeem were not made and published as required by sec. 1170, Stats. 1898. The affidavit of such publication fails to state that the list, as well as the notice, was published, and also fails to state that the same was published once a week for twelve successive weeks, and fails to show that the “Bee,” in which the publication purported to have been made, had been regularly and continuously published once in each calendar week for the last two years immediately before the date of such notice, (h) All of the defects were found in all the sales on which the said five tax deeds under which the defendant claims title were based.</p> <p>(4) It appears from the findings of the court, or is undisputed, that May 23, 1899, a proposition was made by James L. Gates to Price county to purchase all lands of which it held tax deeds and pay therefor in cash at the rate of $10 per forty acres, or twenty-five cents per acre, and also all tax certificates in the treasurer’s office for the sales of 1897, 1898, and 1899, and pay therefor seventy-five cents on the $1 for all legal tax certificates. May 24, 1899, the county board passed a resolution accepting such proposition, provided that the lands should be paid for within three days after the deeds should be tendered, and all assignments of certificates be paid for within three days after tender of the same. “All conveyances and assignments to be made to J. L. Oates Land CompanyStipulations were made from time to time as to when payments were to be made and security given, and deeds and assignments delivered. October 16, 1899, the county treasurer had computed the amount of tax certificates so agreed to be purchased at seventy-five per cent, of their face value at $11,003.85, and for the lands covered by the first and second tax deeds mentioned, at twenty-five cents- per acre, at $20,829.95 — making in all, $31,833.80; and pursuant to such agreement the county executed and delivered to the defendant the quitclaim deed of October 17, 1899, above mentioned. The lands involved in this action are a part and parcel of the lands described in such quitclaim deed; and the third, fourth, and fifth tax deeds mentioned were issued to the defendant upon tax certificates so purchased by the defendant from the county. The allegations of the reply to the counterclaim in respect to the illegality of such purchase by the defendant from the county of the lands in question are true; and, among other things, such purchase was void, because (1) the sale was executory; (2) because a part of the consideration was that the defendant would pay the taxes for 1900, 1901, 1902, and 1903; (3) because a large amount of the lands included in the quitclaim deed were not then held by the county under tax deeds, but only under tax certificates; (4) because the three tax deeds taken by the defendant after October 17, 1899, were so taken at the expense of the county upon certificates held by the defendant, which accordingly had cost the defendant less than seventy-five cents on the dollar.</p> <p>(5) No notice was given for the sale of such certificates less than for face value, as required by sec. 664, Stats. 1898.</p> <p>(6) The notice was not given in accordance with the resolution, nor with sec. 664, Stats. 1898.</p> <p>(7) The county held 4,000 or 5,000 acres of tax lands-and a large amount of tax certificates so agreed to be purchased, but not included in the quitclaim deed, nor paid for by the defendant.</p> <p>(8) None of tbe certificates so purchased by the defendant were ever indorsed on the back by the county treasurer, but only by the county clerk, contrary to the resolution of the board.</p> <p>(9) The resolution of the board of October 16, 1899, accepting the balance tendered by the defendant as of October 2, 1899, was made on the express consideration that the defendant waived payment to him of the redemption moneys paid on such certificates between May 23, 1899, and July 6, 1899.</p> <p>(10) During such negotiations and sale the county clerk was the authorized and acting agent of the defendant in disposing of such lands and certificates for a sum largely in excess of the amount paid, and the moneys received by the clerk on such sales were applied as so much paid to the county by the defendant,' and the county clerk received ten per cent, commissions for the moneys received by him on such sales.</p> <p>(11) The defendant paid the taxes on said lands for 1900 and 1901, and interest to July 9, 1902, and costs and fees, amounting to $162, but never paid the county the amount for which the lands were sold for those years, respectively.</p> <p>And as conclusions of law the court found that the plaintiff is the owner of and has an estate in fee simple in and to all the lands described, and is entitled to the immediate possesr sion thereof, and that the defendant unlawfully withholds possession of the same from the plaintiff, to his damage in the sum. of six cents; that the defendant has no interest in the lands, except as stated; that each of the five tax deeds are null and void for irregularities not going to the groundwork of the tax; that the defendant holds no right, title, or interest in or to the lands under said tax deeds; that the sale of the lands and tax certificates from Price county to the defendant, covering the lands in question, is null and void, and the defendant has no right, title, or interest of any kind or nature in or to said lands under the same, nor to the tax certificates on wbicb sucb five tax deeds were issued; tbat tbe defendant should take nothing under its counterclaim, and the plaintiff should recover in this action.</p> <p>Thereupon the court ordered that the taxes paid upon the lands by the defendant for the years 1900 and 1901, with interest thereon at fifteen per cent, per annum from the time they were so paid to the date of the findings, be set off against the damages awarded to the plaintiff, and that the plaintiff, as a condition of the judgment, shall pay any excess over such damages, with interest from the date of the findings, within ninety days, and that in default thereof the defendant shall have judgment in this action in compliance with such order, and in accordance with the findings of fact and the conclusions of law.</p> <p>Thereupon, and after the making and filing of such findings of fact and conclusions of law, and the entry of such order, October 29, 1902, and on November 19, 1902, the plaintiff notified the defendant in writing to the effect that he thereby offered to pay to the defendant, on its request, the amount for which the lands in question were sold for the taxes for the years 1895, 1896, 189I, 1898, and 1899, and the costs of executing and recording the tax deeds taken on such sales, with interest on all such sums at the rate of fifteen per cent, from the date of sale until the date of the findings herein, together with full legal interest up to the date of such acceptance — such payment, however, to be made only on condition that the defendant would not appeal to the supreme court from the judgment to be entered therein; the offer being made for the purpose of avoiding the costs and expenses of an appeal, and for that purpose the plaintiff thereby waived the question as to the amount'to be thus allowed to the defendant. November 26, 1902, the defendant declined to accept such offer. Thereupon, and on December 6, 1902, judgment was entered reciting that the plaintiff had complied with such order and paid such excess into court, and which judgment was in all respects in accordance with such findings and order, and that the plaintiff recover from the defendant the sis cents damages found, and $178.66 costs and disbursements as taxed. Erom that judgment the defendant brings this appeal.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: WaeeeN D. TaeeaNt, Circuit Judge.</p> <p>Plaintiff brings this action to recover the proceeds of a life insurance policy issued by the Prudential Life Insurance Company of America on the life of William Enos, payable to bis executors, administrators, or assigns. Sbe claims to be owner of this policy as a gift by the insured. Tbe action was instituted against the company. It appeared, paid the amount due thereon into court, subject to its order, and prayed tbat Oscar Opitz, as administrator of the estate of William Enos, deceased, be substituted as defendant, wbicb prayer was granted. Tbe county court of Milwaukee county removed Oscar Opitz as administrator of said estate, and substituted the appellant, wbo was thereafter substituted as defendant. It appeared upon the trial tbat on May 24, 1894, William Enos, then twenty years of age, made application to the Prudential Life Insurance Company of America for insurance upon bis life. Tbe company issued bim a policy for $1,000, conditioned upon the payment of the stipulated quarterly premium, and to be paid upon satisfactory proof of bis death. One of the conditions of said policy was:</p> <p>“If this policy shall be assigned the assignment must be in writing and the company shall not be required to notice such assignment until the original or a duplicate thereof is filed in the home office. The company will not assume any responsibility for the validity of any assignment.”</p> <p>William Enos died September 28, 1900. At the time the policy was delivered to him by the company, on June 1, 1894-, plaintiff and the insured were engaged to be married. This promise and engagement of marriage continued until his death. On the day the policy was received by him, he delivered it to the plaintiff, making her a parol gift thereof. She accepted the policy, and held it up to the time of his death. The court found that the deceased ratified the gift after he became of age, that he gave her the money to pay the quarterly premiums, and that she applied the same upon the policy. Upon this state of facts, the court awarded plaintiff judgment for the amount due on the policy, and for interest from the date the company paid the same into court to the date of the judgment and for costs and disbursements incurred upon the trial.</p>

CleMENtsoN, Circuit Judge. It appears and is undisputed that on the night of Flay 24, 1901, the First National Banlc of Mineral Point was burglarized, and about $25,000 stolen therefrom; that May 25, 1901, the bank publicly and orally offered a reward of $1,000’ for the “arrest and conviction” of the culprit, or, as admitted by the bank, “for the arrest and securing the conviction of the person who committed the burglary;” that about that time suspicion fell upon one Stewart…

<p>Appeal from a judgment of tbe circuit court for Vernon county: J. J. Feuit, Circuit Judge.</p> <p>Action to set aside a deed executed and delivered by one Susan Vance to tbe defendant, ber daughter, Mary Jane Davis, a few days before tbe death of said grantor, on November 20, 1901. Tbe plaintiffs are the son and tbe children of tbe deceased daughter of said grantor. The premises consist of tbe 170-acre farm of tbe mother, upon which she bad lived since the death of her husband in January, 1885;'the same having first descended to his heirs at law, and been by bis three children quitclaimed to their mother in 1887. The defendant had, at the request of the other children, cared for the mother ever since 1885; not pecuniarily, but by looking after her, providing her daily and nightly companionship, and doing daily many acts of aid in her housekeeping, supplying her garden, and caring for her in frequent illnesses, and at the time of the execution of the deed being temporarily resident in the house with her mother. The deed was attacked on the ground of mental incompetence and fraud and undue influence. The court found that Susan Vance was mentally competent, though at the time ill and in pain from an acute disease (peritonitis), of which she died three days later; that the deed was executed during the temporary absence of the plaintiff J ohn M. Vance from the mother’s bedside, was without the knowledge of the plaintiffs, or any of' them, and was made secretly, under circumstances indicating that the grantor and grantee desired to keep knowledge of its execution from the plaintiffs; that defendant then and for many years before occupied a position of trust and confidence; that the deed was caused and brought about by the undue influence of defendant, and was for the purpose of cheating and defrauding the plaintiffs out of their estate of inheritance in said lands. As conclusions of law, the court declared “that the legal presumption of undue influence and fraud in procuring the deed from the grantor by the defendant, who at the time stood in a position of trust and confidence to said grantor, has not been overcome by any testimony in the case.” Whereupon judgment was entered setting aside said deed, from which the defendant appeals.</p>

<p> Street railways: Municipal corporations: Ordinances: Franchise: Streets: Use by street railways: Rights of abutting lot owners: Eminent domain: Condemnation: Injunction: Pleading: Appeal and error. </p> <p>1. Sec. 1862, Stats. 1898, expressly grants common councils of cities power to pass ordinances granting to street railway companies the right to use streets within the corporate limits for the purpose of laying tracks and running cars thereon. Held, since such ordinances have the force and effect of a statute of the state, they are not subject to revision hy the courts on the mere ground of inexpediency or impropriety at the suit of an abutting lot owner.</p> <p>2. Under sec. 1863a,' Stats. 1898, as amended by ch. 306, Laws of 1899, and ch. 465, Laws of 1901 (authorizing condemnation proceedings by a street railway having requisite authority from the common council of the city wherein it is located), an ordinance granting the use of streets to a street railway company only authorizes such corporations to use streets as against the rights of the public, and not as against private owners.</p> <p>3. In an action to enjoin a street railway from constructing its tracks on an abutting owner’s half of the street, it appeared from the allegations of the complaint, ambng other things, that the defendant threatened to enter upon the plaintiff’s premises and permanently occupy the same under claim of right without making any compensation therefor, and that plaintiff had not waived any of his legal rights. Held, that plaintiff was entitled to compensation as a condition precedent to the placing of such tracks in front of his premises, and it was error to sustain a demurrer to the complaint.</p>

<p>Appeal from a judgment of the circuit court for Vernon county: J. J. Feuit, Circuit Judge.</p> <p>This is an action to recover for personal injuries sustained by tbe plaintiff while crossing a small wooden bridge in the defendant town with a traction engine on the forenoon of August 26, 1899. The bridge in question was twenty feet in length from one abutment to the other, and was constructed on wooden stringers, eight inches square and twenty-four feet in length, on each side, which reached two feet over the abutment at each end, and were supported by “A”' braces, made of timber of the same size tenoned into the stringers over the abutment, and reaching to the apex five feet above the stringers, from which apex a king bolt went down through the stringers and through the floor beam below the stringers. The floor beam reached across the bridge from stringer to stringer, and supported the joists of the bridge, which reached from the abutment on either end to the floor beam. On the day in question the plaintiff was employed as steersman on the traction engine in question, and was riding on it across the bridge in company with one Ritske, one of the owners of the engine, and the engineer. When the engine reached a point about the middle, or a little past the middle, of the bridge, the ends of the braces flew up on one side, the stringers broke, and the engine was precipitated, a distance of about eight feet, into the water below, and the plaintiff' was quite severely injured.</p> <p>The following special verdict was rendered by the jury:</p> <p>“1. Was there an insufficiency or want of repair in the bridge in question which caused the plaintiff’s injury ?' A. Tes. 2. If you answer the first question in the affirmative, then did the defendant village have actual notice of such insufficiency or want of repair prior to the accident to the-plaintiff? A. Yes. 3. If you answer the first question in. the affirmative, then had such insufficiency or want of repair existed for such a length of time that the officers of the village, whose duty it was to maintain and repair such bridge,. in the exercise of ordinary care> ought to have discovered such insufficiency or want of repair in time to have remedied or repaired the same before the accident. A. Yes. 4. If you answer the first question in the affirmative, then was such insufficiency or want of repair the proximate cause of the plaintiff’s injury. A. Yes. 5. Was the plaintiff, or .the man Eitske, while in the act of crossing, or in attempting to cross, the bridge in question, guilty of any want of ordinary care which contributed to the plaintiff’s injury? A. Ho. 6. If the plaintiff is entitled to recover, at what sum do you assess his damages ? A. Two thousand eight hundred dollars ($2,800.00).”</p> <p>A motion by the defendant for a new trial was overruled, and judgment entered upon the verdict in favor of the plaintiff, from which the defendant appeals.</p>

M. Webb, Circuit Judge. This action was commenced June 19, 1899, to recover damages for the death of the plaintiff’s intestate, caused by an alleged defect in the public highway, July 7, 1897. The defendant answered by way of admissions, denials, and counter allegations, and also alleged that the right of action was barred by the statute. Sec. 1339, Stats. 1898, as amended by ch. 305, Laws of 1899.

<p> Wills: Probate: Mental capacity: Undue influence: Evidence: Witnesses: Attorney and client: Admissibility of testimony of attorney who drafted will. </p> <p>1. Evidence offered on application for probate of a will, stated in the opinion, considered, and held to show that the written instrument offered for prohate did not emanate from the testator’s mind, hut was made by others and imposed on him.</p> <p>2. Sec. 4076, Stats. 1898 (providing that an attorney or counselor at law shall not he allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment), is nothing more than a reenactment of the common law.</p> <p>3. Under sec. 4076, Stats. 1898, while an attorney who draws a will will not he allowed, without the consent of the testator, while living, to testify to communications made to him concerning the will, or its contents, when the will is presented for prohate after the testator’s death, such attorney may testify as to directions given him hy the testator, and Such testimony is properly admitted in evidence in the proceeding.</p>

<p> Slander: Evidence: Collateral circumstances: Instructions to jury: Intent in uttering slanderous words: Presumptions: Material error. </p> <p>1. In an action for slander it is error to hold that a previous controversy between plaintiff and defendant, of which the hearers Of the slanderous words had no knowledge, may be offered in evidence and considered by the jury in deciding whether the words charged in the complaint, and conclusively proved to have been uttered, were used by defendant and understood by the hearers to charge merely that plaintiff had deprived defendant of certain lands, instead of having committed the crime of larceny, as would be the natural understanding of the words used.</p> <p>2. In slander, the speaker of the slanderous words must be conclusively presumed to intend the meaning which his words will convey to the hearers in the light of all the circumstances known to them; the gravamen of the wrong is not the verbal assault upon the plaintiff, but the injury resulting to him from the effect upon others of the publication of the false defamatory charges.</p> <p>3. In an action for slander it is error 'to instruct the jury that to warrant a verdict for plaintiff they must find that the slanderous words were not only understood but intended to charge the crime alleged.</p> <p>4.- Defendant, in an action for slander, testified that preliminarily to uttering the alleged slanderous words she asked plaintiff if he had received her notice, and was ready to give her' her ’ acre of land; to which plaintiff replied, using a vituperative epithet; whereupon defendant became very angry, told plaintiff that six months after her husband’s death he had fenced in her land so she had ever since been deprived of it, and^then said: “You are a stinker! You are a thief! You stole my land! You stole my money!” Held, that the unambiguous words “you stole my money” were in no wise qualified by the preceding words, but must have been understood as intending to charge something additional to, and distinct from, the act of depriving defendant of her land, which she characterized as stealing it.</p> <p>5. In actions for speaking words alleged to be slanderous, when the language is unambiguous, it is error to leave its construction to the jury.</p>

Plaintiff brought this action as a taxpayer of defendant town to set aside an illegal contract made by the chairman of the town, and to restrain the officers from collecting the taxes which were levied to pay the price of a certain road machine. The town of Liberty is one of the organized towns of Outa-gamie county, and is divided into twelve road districts. Plaintiff is a taxpayer of road district ISTo. 9.

July 23, 18tbe plaintiff and defendants entered into a written agreement wherein and whereby the plaintiff, in consideration of $3,000 to be paid, sold and transferred to the defendants all his right, title, and interest in the affairs and business of the Pratt & Brown Manufacturing Company; also all his right, title, and interest for the United States in and to a machine or machines known as the “Improved Wire and Slat Fabric Weaving Machine;” also all his right, title, and…

This is an action to recover damages for injury sustained by falling from a street car while riding thereon as a passenger for hire. The defendant answered by way of admissions, denials, and counter allegations.

F. DuNwiddie, Judge. The defendant was prosecuted and convicted before the municipal court of Milwaukee county of the crime of embezzlement, and brings his writ of error to reverse the sentence. The original information was in two counts.

<p>Erroe to review a judgment of the circuit court for Clark county: Jakes O’Neili,, Circuit Judge.</p> <p>The plaintiff in error was charged with having on June 12, 1899, made an assault upon his wife, Amanda Lowe, while armed with a revolver and razor, with the intent to. kill and murder her. To such information he entered a plea of not guilty, and with such plea he also made and filed a special plea, alleging his insanity at the time of the alleged offense. The special plea was tried April 25, 1900, and the jury were unable to agree upon a verdict, and were thereupon discharged from further consideration of the case. Thereupon, and on April 25, 1900, the court made an order (entered in the clerk’s minutes) forthwith ordering the. trial to proceed upon both pleas — that of not guilty, and also the special plea — but nothing was done until April 27, 1900;, when, with the consent and concurrence of the accused and his attorney, an order was made and entered in the clerk’s minutes, continuing the cause until the nest regular term of the circuit court, which was appointed to be held in October, 1900. Subsequently, a jury trial was had on both pleas, and at the close of such trial, November 30, 1900, the jury returned a verdict of guilty. The court denied successive motions to arrest the judgment and for a new trial. December 12, 1900, and at the same term of the court, the accused was, by the judgment of the court, sentenced to the state prison for the term of eight years. To reverse such judgment and sentence the accused sued out this writ of error.</p> <p>'It appears from the record, and is undisputed, that the accused at the time of the trial was fifty-four years of age; that he lived in England and Rhode Island most of the time, working in cotton mills, until he was twenty-eight years of age, when he came with his first wife to Jackson county; that he only had three months’ schooling; that he lived with his first wife about eight years, and had by her six children; that he was divorced from her; that he thereupon moved to Neills-ville, in Clark county, where he was engaged in the butcher business, and where the offense was committed, and married his second wife, but was divorced from her soon afterwards-; that thereupon he married his third wife, Amanda Lowe, mentioned, in March, 1897, and separated from her in September, 1897, but afterwards came back to her, and lived with her until in June, 1899 ; that he had no children by his second or third -wife, and all three wives were women of irre-proacbable character, absolutely above any suspicion of infidelity; that June 10, 1899, the accused told his wife, Amanda, to pack up and go, as they could not get along together, but that instead of doing so at that time, she went to the house of her son by a former marriage, near by, and remained there until the morning of June 12, 1899, when she went back to her husband’s house,' and commenced to pack up; that with her at the time were Mrs. Ray Carlton and Mrs. Bertha Montgomery, daughters of Mrs. Lowe, and two small children of Mrs. Montgomery; that while Mrs. Lowe was in the bedroom, packing her belongings, where the accused was at the time, and when her back was turned toward him, he shot her in the back of the head, and she fell to the floor, and while lying on the floor he fired two or three other shots, one of which inflicted another wound in the head; that the accused thereupon walked into the kitchen, and fired two shots at himself, inflicting but slight wounds in his chin and forehead; that Mrs. Carlton thereupon ran from the house in search of assistance, and Mrs. Montgomery, who witnessed the entire occurrence, succeeded in disarming the accused of the revolver; that thereupon the accused started for the room where his wife was lying, and in spite of the efforts of Mrs. Montgomery, cut his wife’s throat with a razor, severing the windpipe and the front half of the gullet, and also the anterior jugular and the right external jugular; that in such condition Mrs. Lowe, with the assistance of Mrs. Montgomery, made her escape, and succeeded in reaching the house of a neighbor, where medical assistance was procured, and she recovered; that the accused was in the habit of addressing his several wives in terms of the vilest obscenity and most disgusting profanity.</p>

<p> Estates of decedents: Residuary legatee as executor: Bond to pay debts: Liability of estate: Bomesteads: Evidence: Declarations of deceased persons: Limitations of actions. </p> <p>1. Where a residuary legatee, who is also the executrix, gives the bond provided by sec. 3795, Stats. 1898, conditioned “to pay all the debts and legacies of the testator,” the giving of such bond does not have the effect to pass to the executrix and residuary legatee the absolute title to the whole estate, terminate the administration, and limit the remedy of general creditors of testator to proceedings upon the bond against the legatee personally. "Will of Ebenezer W. Cole, 52 Wis. 591, so far as it announces a contrary doctrine, overruled.</p> <p>2. In such case, all the property, not exempt, of which the testator died seized is subject to the payment of his debts, whether the executor gives the bond required by said sec. 3795 or the bond ordinarily required by law.</p> <p>3. Under sec. 2983, Stats. 1898 (providing that a debtor’s homestead, not exceeding one-fourth acre, shall he exempt), and sec. 3682 (providing that if a testator makes provision by his will for the payment of his debts, then they shall he paid accordingly, hut that no general direction in any will to pay the debts of the testator out of his property shall subject the homestead to the payment thereof), the provision of a will giving to testator’s widow all of his real and personal estate “which should remain after the payment of” his “just debts and funeral expenses,” only charges with the payment of testator’s debts such real estate as is in excess of the one-fourth acre, owned and occupied by deceased and his wife as his homestead at the time of his death.</p> <p>4. In an action by a testator’s son against testator’s widow (who as residuary legatee and executrix had given a bond to pay debts and legacies), to recover an alleged indebtedness of the decedent to plaintiff, self-serving declarations of the testator, made to his wife, are inadmissible.</p> <p>5. Such declarations would be also inadmissible, even had the plaintiff opened the door for the widow to testify generally as to communications with her deceased husband.</p> <p>6. In an action by a testator’s son against the widow (who as residuary legatee and executrix had given bond to pay debts and legacies), to recover money alleged to have been advanced to his father in his life time, the fact that prior to his death testator had sued plaintiff to recover back funds alleged to have been converted by plaintiff, which suit was compromised and discontinued without costs to either party, is admissible in evidence, but fails to show conclusively testator’s claim relative to such funds, or that plaintiff acquiesced in such claim.</p> <p>7. "Where the residuary legatee and executrix gave bond to pay debts and legacies under the provisions of sec. 3795, Stats. 1898, and thereby became personally liable to pay testator’s debts, a cause of action against the testator, on which suit was brought against the residuary legatee, is not barred by the statute of limitations until six years after the giving of such bond.</p>

Paeish, Circuit Judge. This action was commenced May 31, 1902, to recover damages for personal injuries sustained by the plaintiff July 20, 1900, while in the employ of the defendant as fireman on two small engines used in connection with derricks in hoisting .coal from the boats to the defendant’s coal dock in Ashland.