Volume 122 — Wisconsin Reports

W. BubNell, Circuit Judge. About 1855 John 8. Rowell, a mechanic and steam engineer, commenced manufacturing seeders and some other farm implements in a small way at Beaver Dam, Wisconsin, and continued throughout a series of partnerships down to the times involved in this controversy; each partnership containing his own name, and sometimes that of his partner.

<p> Divorce: Voluntary separation: Evidence: Division of estate.' </p> <p>1. In an action for divorce fey a lrusfeand on the ground of desertion, tlie evidence js held to sustain a finding tfeat tfee wife was entitled to a divorce' upon her counterclaim, on the ground of voluntary separation for five years.</p> <p>2. The fact that during the separation the wife wrote to the husband that she would never live with him again, did not change the voluntary character of the separation, in the absence of objection by the husband.</p> <p>3. It appearing that the husband had property worth about $6,000, was forty-seven years old, in good health, and had an established business producing a fair income, while the wife was broken in health, unable to perform any hard labor, and had two minor children to support, an award to her of a gross sum of $1,800 was_ not unduly large, but it is held that it should be given to her, not as alimony, but as a final division of the husband’s estate.</p>

<p> Interstate comity: Insolvent hanks:' Stockholders’ liability: Enforcement against nonresidents: Statutes. </p> <p>1. Finney v. Ouy, 106 Wis. 256, and Eau Glaire Nat. Bank v. Benson, 106 Wis. 624, as to enforcement in the courts of this state of the statutory liability of stockholders of a bank to its creditors under the laws of Minnesota, followed. Parker v. Stoughton M. do. 91 Wis. 174, distinguished.</p> <p>2. A statute of Minnesota (ch. 272, Laws of Minn. 1899) to the effect that the court of that state in which a receiver is appointed for- an insolvent bank may, in a summary proceeding to which a nonresident stockholder is not a party, fix the amount for which he shall respond upon his statutory liability, and the time when and the person to whom the same must be paid, and that such determination shall be conclusive upon the stockholder as to all guestions involved, will not be. given such force by the courts in this state as to deprive a stockholder, resident here, from whom the receiver seeks to recover in our courts an amount so fixed, of his right to litigate all questions respecting the enforeibility of his said statutory liability.</p>

<p> Municipal corporations: Torts: Presentation of claim when not a condition precedent to action: Charter construed: Pleading: Grading .streets: Invasion of abutting land: Liability: Damages: Evidence: Effect of recovery. </p> <p>1. A charter provision that no action in tort shall he maintained against the city unless a claim was presented to the council within ninety days after the happening of the tort alleged, does not, as to common-law causes of action, make such presentation of claim a condition precedent to the right of action. It merely postpones the right to sue until the claim is presented, and, as a limitation, bars the right if the claim is not presented within the time prescribed. Presentation of the claim need not, therefore, be alleged in the complaint in such a case, and the objection that no claim was presented, if not raised by proper pleading, is waived.</p> <p>2. Where a city council ordered a street graded to the established grade by the street commissioner, within whose charter functions such work fell, and he did the work so as to bring the surface of the street to grade' for its full width, whereby, there being no retaining wall, the filling extended upon the adjoining premises, the city is liable for proximate damages resulting to the land thus invaded.</p> <p>3. Although the specific act of placing earth upon the adjoining land was- unlawful and unauthorized, it was nevertheless the' act of the city, for which.it is responsible, since it was done in the course and as a part of the good-faith performance of the work of grading under the general authority of the commissioner to act for the city in that behalf.</p> <p>4. Authority and direction to the street commissioner to grade a principal city street to the established grade would seem to require that the entire surface of the street be brought to such grade, and the city, having admitted by answer that the work done in that way was done “as required by law,” cannot be heard to assert the contrary.</p> <p>5. Evidence as to the cost of removing the earth placed on plaintiff’s lot and of building a retaining wall to uphold the street to its full width was admitted, but the jury were carefully instructed that it was admitted merely as a limitation of damages, which were to be measured by the diminished value of the land by reason of the trespass, but not to exceed the cost of such removal and wall. SeU, that the admission of such evidence was not prejudicial to defendant, the other evidence tending to establish a depreciation of the land largely in excess of such cost and of the amount awarded by the jury.</p> <p>6. The recovery in such case of the depreciation in value, limited to the cost of retaining wall and removal of earth, would give defendant the right to have the earth remain as a support to the street unless plaintiffs should exercise their choice to build the wall at their own expense, in which latter case they must, at their peril, so construct the wall as to furnish safe and perfect support for the street for its full width at the established grade.</p>

<p>{1, 2) Witnesses: Competency: Transactions with persons since deceased. (3) Remote evidence: Immaterial error. (4) Wills: Undue influence.</p> <p>1. A witness incompetent under sec. 4069, Stats. 1898, as amended by ch. 181, Laws of 1901, to testify to transactions or communications by him personally with a person since deceased, is not competent to testify to transactions or communications between the deceased and third persons in his presence, unless it appears that he did not participate therein and that they were not affected by his presence.</p> <p>2. The person named as executor in a will, who appears as proponent in a contested proceeding for its probate, with no other interest in the estate of the deceased, is not incompetent, under see. 4069, Stats. 1898, as amended by ch. 181, Laws of 1901, to testify to personal transactions or communications with the deceased.</p> <p>3. The exclusion of testimony as to facts remote in point of time and of slight, if any, relevancy to the issues, held not a material error.</p> <p>4. To show that the execution of a will was procured by undue influence, it must appear that there was such influence exercised as to amount to moral coercion, which resulted in destroying the testator’s free will and independent action, and constrained him to act against his will and independent wishes in disposing of his property. The evidence in this case is held to sustain the finding of the trial court that there was no undue influence.</p>

<p> Death th/rough negligence: Right of action: Nonresident beneficiaries: Foreign administrator. </p> <p>1. The right of action given by secs. 4255, 4256, Stats. 1898, for the benefit of relatives of a person whose death was caused by a wrongful act, neglect, or default, arises, as to a death so caused in this state, although the deceased and such relatives were all residents and citizens of another state.</p> <p>2. The action in such case may be maintained in the courts of this state by the personal representative of the deceased, duly appointed in the state of his domicile.</p>

<p> Fraud: Evidence: Co-wrt and jury. </p> <p>1. Evidence of the fraud on which an action is based must be clear and satisfactory in order to justify a verdict for the plaintiff.</p> <p>2. Where there is evidence in support of plaintiff’s claim, its mere improbability will not warrant the court in taking the question from the jury: but it may be so taken if the facts unquestionably proven contradict the claim and are so strong and convincing that all the reasonable probabilities of the case are against it.</p> <p>3. In an action based on an alleged fraudulent representation by' an attorney at law that plaintiff might sign certain promissory notes without incurring any personal liability, plaintiff’s testimony as to such-representation is held so overborne by his self-contradictions and by all the facts proven in the case as to require the court to say that there was no evidence to go to the jury.</p>

<p>Appeal from an order of the circuit court for St. Croix county: E. W. Helms, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Pepin county: E. B. BeldeN, Judge.</p> <p>Taxpayer’s action to prevent an alleged unlawful use of public funds. The issues and the disposition of the same by the court, so far as indicated by the findings, are sufficiently shown by the following summary thereof:</p> <p>(1) Plaintiff is a private corporation organized under the laws of Wisconsin. Defendant city of Durand is a municipal corporation organized and existing under ch. 252, Laws of 1887, and the acts amendatory thereof. -Since the commencement of the action defendant J. J. Morgan has been the mayor of such city. Defendant Finley Goodrich, at the time of the commencement of this action, was its treasurer, and Charles McDonald its city clerk. Defendant American Bridge Company is a corporation organized under the laws of New York. The other defendants, during the time mentioned in these findings, were doing business as copartners under the name of the Business Men’s League, of said city.</p> <p>(2) Said city, at the times herein mentioned, possessed authority under ch. 430, Laws of 1901, to construct a bridge across the Chippewa river, and prior to the proceedings hereafter mentioned to that end the city duly procured and bad in its treasury for that purpose $25,000.</p> <p>(3) Said city purchased material for a draw span for such bridge from the American Bridge Company, and let a contract for the superstructure of the bridge to such company, and also a contract for the substructure of the bridge to said Business Men’s League.</p> <p>(4) Such contracts were let to the lowest reasonable and responsible bidder and in the manner best calculated to secure competition in bidding, and in the customary manner of letting such contracts. In the letting of such contracts the provisions of the charter of the city in ¡respect to the matter were substantially complied with. At an adjourned meeting of the council of said city held December 21, 1902, the bids for the superstructure were considered and the contract was awarded to the American Bridge Company, it being the lowest reasonable and responsible bidder, and the lowest bidder as well. January 3, 1902, the city made a contract in due form with said bridge company in accordance with said award, taking from it a bond to secure the performance of such contract, as required by the charter of the city, which bond was duly approved.</p> <p>(5) January 13, 1902, said municipality considered the bids for the substructure for such bridge and awarded the contract in respect thereto to said Business Men’s League for $9,000, it being the lowest responsible bidder therefor. January 18, 1902, a contract was made in due form according to sucb award, a bond being taken to secure performance thereof, as required by the charter, which bond was duly approved.</p> <p>(6) The provisions of the charter of said city governing the subject were complied with in making the contracts aforesaid, and in auditing and paying the claims thereunder.</p> <p>(7) Before this action was tried the said Business Men’s League had fully performed the contract aforesaid, and the said bridge company had partially performed its contract.</p> <p>(8) The acts of the officers of said city in respect to the matters herein referred to were lawful and in good faith, performed with the purpose of securing the best results.</p> <p>(9) Blaintiff, though suing as a taxpayer, owned and operated a toll bridge across the Chippewa river at said city, and was moved to commence this action for the purpose of protecting its private business, and on that account it has no standing in a court of equity.</p> <p>The record evidence was to this effect: Money was "procured for the bridge as indicated in the findings. The common council approved of a contract with the American Bridge Company for the superstructure December 30, 1901, and ordered the mayor to execute such contract. That was accordingly done, January 3, 1902. January 13, 1902, a bid of the Business Men’s League aforesaid, for the substructure, was accepted, and a contract executed accordingly. Bonds were given to secure the performance of both contracts in accordance with the charter, except that bonds did not in any case accompany the bids, nor was any requirement in that regard made by the council as the charter provides. The mayor sent a communication to five bridge companies, soliciting bids for the superstructure, which included the use of a draw span to be furnished and delivered by the city, the same to be put in place and adapted to being a part of the bridge by the contractor.</p> <p>The communication contained a diagram showing in a general way the characteristics of the span to be used, and information to the following effect.: Four of such spans will be required. Each bidder will be permitted to arrange details to suit its own manufacturing facilities, subject to the general specifications and subject to the approval of the city engineer. The bid in each case should include the expense of putting in place the draw span furnished by the city.. Bids for the complete work are to be preferred. The steelwork must be painted as indicated. The structure will not include bed joists, planking, guard rails, or substructure. All bids should be sent to the writer by December 16, 1901. The right to reject any and all bids is reserved. The contract will be awarded to the lowest responsible bidder. The terms of payment will be cash upon acceptance of the work.</p> <p>There was no other solicitation for bids for the superstructure except some orally made by the mayor and the city engineer to two of the bridge companies, one of whom obtained the contract. Prior to December 17, 1901, at which time there was a meeting of the common council, bids had been received in response to the communication aforesaid, as follows: American Bridge Company, $16,625; King Bridge Company, $14,000 and twenty per cent, on cost of erecting draw; Waukesha Bridge Company, $15,630. No action was taken thereon December 17th. Thereafter the American Bridge Company, by oral communication and by negotiation, reduced its bid to $15,000, and concessions were made to it. No action was taken by the common council as to auditing any of the claims for payment under the contract. The contract actually awarded to the American Bridge Company varied in several material particulars from the terms stated in the mayor’s communication aforesaid. There was considerable evidence tending to show that the officers of the city were active, after this action was commenced, in placing the money designed for payment for the bridge, beyond the reach of any judgment or order 'which the court might make in respect thereto interfering with the purpose of such officers. The evidence shows that plaintiff was a taxpayer of the city and was privately interested in preventing the construction of the bridge in question because of its ownership of a toll bridge, built and maintained by public authority, the revenue-from which a new bridge would lessen.</p> <p>The record of the meeting of the common council held December 17, 1901, closed with a statement that an adjournment Was taken until December 23, 1901. Oral evidence was-given by the city clerk that there was no meeting in the meantime. Oral evidence was permitted, against objection of’ plaintiff’s counsel, that a meeting occurred December 21, 1901, at which the bids on file for the superstructure of the-bridge were considered, and the bid of the American Bridge-Company was accepted.</p> <p>Judgment was rendered for the defendants in accordance-with the findings, dismissing the action with costs, and plaintiff appealed, having filed exceptions tó the findings on points considered in the opinion.</p>

<p> Jjicenses to veddlers: Tax law or police regulation? Constitutional law: Equal protection: Exemptions. </p> <p>.1. Sec. 1570, Stats. 1898, as amended by ch. 341, Laws of 1901 (re- * quiring peddlers to obtain state licenses), cannot be sustained either as a tax law or as a police regulation. The exemption from its provisions of manufacturers, mechanics, nurserymen, and farmers who have owned the goods they hawk for three months or who actually manufactured or raised the products sold, of dealers in agricultural implements maintaining permanent places of business, of keepers of retail meat markets, of fish dealers, of sellers of fruit or vegetables in cities of the first class, and of persons selling at wholesale or to dealers only, and the discrimination in favor of blind, deaf and dumb, cripples, and partially disabled veterans of the war of the Rebellion, are not based upon any legitimate classification germane to the purpose of the law in either aspect, and persons not so exempted are therefore denied the equal protection of the laws guaranteed both by the federal and the state constitutions.</p> <p>£2. Whether the act is an attempted exercise of the power of taxation or merely of the police power, not decided.]</p> <p>[3. Whether sec. 1, art. VIII, Const, (providing that the rule of taxation shall he uniform, and taxes shall he levied upon such property as the legislature shall prescribe) limits the legislature to property as the basis for the levy of all taxes, not decided.]</p> <p>[4. Whether in a purely police regulation of peddlers a legitimate distinction might be drawn between persons selling only to • dealers and those selling at retail, not decided.]</p> <p>5. In a tax law, exemption of persons partially disqualified from means of livelihood can be justified, if at all, only upon the assumption' that they, as a class, are distinct from the rest of the community either as paupers or as potential paupers,</p> <p>6. Neither in tax laws nor in police regulates can the fact of prior completed military service be made the basis of discrimination between citizens.</p>

<p> Agreement to support: Release: Settlement. </p> <p>Plaintiff paid defendant a certain sum in consideration of the latter’s agreement to support Mm for the remainder of his life,, and under this agreement received such support for several years, hut became dissatisfied and demanded the money back, which was refused. Defendant afterward offered to repay one-, half of the money upon condition that he be fully released from all further liability. Plaintiff finally accepted such payment as. a full and final settlement. Held, that plaintiff could not recover the balance.</p>

It appears from the record that March 13, 1903, the plaintiff made before and filed with a justice of the peace an affidavit wherein be testified that be was the owner and lawfully entitled to the possession of the team of horses, wagon, and harnesses therein described of the value of $175, and that the same bad been unjustly taken and were unlawfully detained by the defendant, and that the same bad not been taken for any tax levied by virtue of any law of this state, nor…

<p> Highway: User: Establishment over public lands: Acceptance. </p> <p>1. A logging road originally built on public land did not become a highway either by twenty years’ adverse user under common-law principles or by ten years’ use and working under sec. 1294, Stats. 1898, where the user was interrupted and the road blocked for months and even years at a time, and there was no expenditure of public funds thereon and no working thereof by highway officials.</p> <p>2. Sec. 2477, R. S. of TJ. S., granting the “right of way for the construction of highways oyer public lands not reserved for public uses,” became operative so as to establish a highway only upon acceptance thereof by the public; and the desultory use for a few months by a few persons of a logging road through the woods, with no act by the public authorities, did not constitute such an acceptance.</p>

<p> Bales: Written contract: Variance by parol: Evidence: Cross-examination: Instructions to jury. </p> <p>1. A written contract for the sale of certain articles therein described and upon terms therein mentioned, which were expressly stated to cover the entire contract, cannot be varied or contradicted by oral evidence that the sale was by sample and upon terms not mentioned in the writing.</p> <p>2. In an action for the purchase price of goods sold under written contract, which defendant claimed were not such as Lad been ordered or according to oral representations of the seller’s agent, evidence of a sale by said agent to another person on the same day and that such person returned the goods sent him because not according to the agreement, was inadmissible.</p> <p>3. Where defendant testified that the jewelry sent him was not of rolled gold as required by the contract, hut of brass, the plaintiff should have been permitted, on the cross-examination, to ask him whether a certain article of jewelry then exhibited was gold or brass.</p> <p>4. A trial judge should not, in charging the jury, give special significance to the evidence on one side of- the controversy by speaking of it in detail, especially to those parts favorable to that side, while not mentioning the opposing evidence; nor should he so charge the jury as to refresh théir memory as to the testimony on one side of the controversy while not doing so as to that on the other.</p>

<p> Highways: Obstruction: Evidence: Prescription. </p> <p>1. Upon tlie question as to how near a fence came to the traveled track in a road, witnesses who had not attempted to ascertain the exact distance estimated it at from one foot to two feet and a half, hut three witnesses, including a competent surveyor, had made careful measurements and found that at no point was the fence nearer than two feet and a half. Held, that the court was justified in assuming it to he established that the measured distance was correct.</p> <p>2. A fence erected in good-faith, belief that it marked the line of' the abutting owner, being wholly outside the limits of the highway as originally attempted to be laid out,' and at no point nearer than two and one-half feet to the traveled track, and not impeding travel therein, is at most a mere encroachment, not an obstruction which may be summarily removed.</p> <p>3. There having been an attempt — even though an ihvalid one — to-lay out a highway four rods wide, followed by travel generally in accordance therewith, a deviation at one place which made-the traveled track extend partly beyond those limits, even though continued for twenty years, did not make a highway by prescription beyond said limits in excess of the actual physical occupation.</p>

<p> Criminal law and practice: Rape: Evidence: Dismissal as to one count. </p> <p>1. To establish, the crime of rape the utmost reluctance on the part of the prosecutrix must he shown, and it must also appear that she availed herself of every reasonable opportunity to make the utmost resistance in repelling the assailant and preventing him from accomplishing his purpose.</p> <p>2. Testimony of the prosecutrix, when -asked to describe what resistance she made, that she fought defendants all the time, is held to be of no probative force, being merely a conclusion and not a statement of what actually took place.</p> <p>3. Where an information contained two counts, one charging rape and the other a lesser offense, and the evidence was insufficient to establish the rape, the court, .on motion, should have dismissed defendants from further prosecution under that count.</p>

<p> Bastardy: Sufficiency of evidence: Credibility of witnesses: Instructions to jury. </p> <p>1. In a bastardy proceeding it is held that, although there was much to cast discredit upon portions of the testimony of the complaining witness, her story was not so improbable or incredible as to make it an abuse of discretion for the trial court to refuse to set aside the verdict of guilty.</p> <p>2. The jury were charged that the material question was not as to the character of the complaining witness, but whether defendant was the father of her bastard child, and that, if the jury found he was the father, it was immaterial, on that question, what the character of the complaining witness was. Held, that this did not, in view of other portions of the charge, leave the jury to infer that the character of the complaining witness for truth and veracity was immaterial.</p> <p>3. A charge that the jury had not the right to reject all the testimony of a witness merely because they concluded that he testified falsely as to some material matters, held not erroneous.</p> <p>4. The court having charged the jury generally as to when they might properly reject all the testimony of a witness who had testified falsely as to material matters, it was not error to refuse to instruct them specifically to the same effect as to the complaining witness.</p> <p>5. It is not error to refuse an instruction the substance of which is covered by the general charge.</p>

<p> Criminal law: Murder: Information: Expert testimony: Qualification: Immaterial error. </p> <p>1. An information charging the murder of George Bowers, Sr., sufficiently charges the murder of a “person” or a “human being,” without the use of those words.</p> <p>2. A physician, whose general qualifications to testify as such, were shown, and who was shown to have had seventeen years practice and to have treated numerous bruises and wounds on the head, was qualified, prima facie at least, to testify as an expert concerning fractures of the skull.</p> <p>3. The exclusion, upon defendant’s own objection, of competent evidence as to a part of the res gestee, cannot be held error prejudicial to him.</p>

<p> Vendor and purchaser: Contract construed: Growing timber: Failure to convey title: Measure of damages. </p> <p>1. Defendants purchased the timber on about 8,500 acres belonging to a lumber company, with ‘the privilege of removing said timber within five years, and the right to purchase, at the end of the five years, the land itself at $2.50 per acre with interest and taxes added, deducting the amount paid for the timber. They sold to third persons the timber on about 7,800 acres, to be removed by the end of the five years mentioned. Afterwards, during the five years, they contracted to sell to plaintiff for $3 per acre all the lands they then controlled belonging to said lumber company, “being about 8,500 acres.” Held, that this contract called for a conveyance of the title to the lands, including the timber thereon.</p> <p>2. A vendor who agrees to convey what he at the time knows he has no right to convey because the title is in another, thereby assumes the risk of acquiring the title and making the conveyance, or responding in damages for the purchaser’s loss of the bargain, even though the latter knew at the time of making the agreement that the vendor had no title.</p>

C. Silveethoen, Circuit Judge. This is an appeal from an order sustaining a demurrer to the complaint in an action to recover back $374.32 paid under protest; the same being for $363.42 taxes levied on account of notes and mortgages, and $10.90 fees of the officer in making such collection.

C. Ludwig, Judge. Action for damages resulting from death of plaintiff’s husband on April 26, 1902, by negligence of defendant as his employer. Defendant maintained an extensive coalyard at Milwaukee, in which were a row of elevated hoppers or bins, the tops of which were about fifty feet from the ground, and which were twenty feet long, eight feet wide, and eighteen feet deep.

<p> Appeal: By whom may he taken: Wills: Modification by persons interested: Estates: Distribution: Administrators and executors. </p> <p>1. The supreme test of whether a person has a right to appeal to the supreme court is whether he has a substantial interest adverse to the adjudication he seeks to have reviewed, not whether he was a party to the record in the court below. Thus, persons interested as distributees under a will are held entitled to appeal from a judgment adverse to their interest, rendered in an action of replevin by the administrator of the testator’s widow against the personal representative of the testator, though such appellants were not parties to the record.</p> <p>2. The widow and children of a testator, to whom he gave his property, agreed upon a modification of the scheme of the will, and in accordance therewith the county court assigned a certain sum to the widow, “to be used by her during her natural life, interest and principal if need be, so far as it shall be necessary for her comfortable support and maintenance,” with power to sell and convey, “but without power to dispose of the same by will;” and all that should remain undisposed of at the death of the widow, as well as the other property of the testator, was assigned to the children. Eeld:</p> <p>(1) On the death of the widow, debts contracted by her for her “comfortable support and maintenance” were payable out of the property assigned to her, and the administrator of her estate was entitled to possession of said property until it should be assigned in the course of an administration of her estate.</p> <p>(2) The widow did not, however, become the absolute owner of the property assigned to her. She had merely a life interest, with power to use or to sell for her support, and the children took the estate in remainder in accordance with the husband’s will as modified.</p> <p>(3) Further administration of the husband’s estate was not necessary, but upon payment of the debts of the widow and expenses of administration of her estate, the remainder should be distributed to the remaindermen under the assignment already made of the husband’s estate.</p>

<p> Highways: ,Culvert: Defects causing death: Pleading: Evidence: Court and jury: Proximate cause: Failure to submit issue: Extraordinary rise of water over road: Contributory negligence. </p> <p>1. In an action for death alleged to have been caused hy a defective culvert, the allegations of the complaint are held sufficiently hroad to admit evidence of the condition of the highway at and near the place in question, and particularly that the highway curved slightly as it passed over the culvert, although such curvature was not specifically alleged.</p> <p>2. There being evidence in this case that a deep hole at one end of a culvert was in close proximity to the traveled track, and that there were no' guards or railings or anything to indicate its location- or the danger, it cannot be said, as a matter of law, that the highway was not defective.</p> <p>3. The question whether an unusual and extraordinary accumulation of water, due to the sudden melting of snow, overflowing the highway at the culvert and making it temporarily unsafe, was the proximate cause of the accident, is held, upon the evidence, to have been one for the jury.</p> <p>4. Such question, being raised by the pleadings, shoúld have been submitted to the jury in some appropriate form; and the failure to submit it specifically in the special verdict is held not to have been cured by the charge of the court upon the question whether the insufficiency of the highway was the proximate cause of the accident.</p> <p>5. Whether plaintiffs intestate was guilty of contributory negligence in attempting to drive over the culvert at the time, is held, upon the evidence (showing among other things, that the line of the highway, with fences on the side, wias obvious to her, and that she knew other vehicles had just passed over the culvert and through the water), to have been a question for the jury. Sohrunk v. St. Joseph, 120 Wis. 223, distinguished.</p>

<p>Appeal from a judgment of the circuit court for Trem-pealeau county: J. J.'Eeuit, Circuit Judge.</p>

<p> Action: Consolidation: Dismissal of separate action. </p> <p>An order consolidating separate actions brought by several creditors of a deceased debtor to subject certain real estate to-sale for tbe benefit of all bis creditors, merged sucb actions into one, which superseded them, and the plaintiff in one of the original actions was not aggrieved by a judgment dismissing it without costs.</p>

<p> Assault: Damages: Injury to reputation: Instructions to jury: Pre~-judicial error: Trial: Single general verdict on several causes of action: Appeal: Review of evidence as to damages. </p> <p>1. Without direct allegation of injury to reputation as special damages, supported by proof, there can ordinarily be no recovery for that element of damage in an action for assault, even though the assault was accompanied by sexual solicitation. [Whether injury to reputation is ever a legitimate element of special damage in an action for an assault, not determined.]</p> <p>2. To instruct the jury, in an action for an assault, to include loss of reputation as an element of damage to plaintiff, was error prejudicial to defendant in the absence of any evidence of such loss.</p> <p>3. A single general verdict upon more than one cause of action may, under certain circumstances, suffice if the instructions were such that the jury could only have reached such verdict by a resolution of all the material issues in favor of that party; but where there are several causes of action, each resolvable differently by the jury, and any one of which resolved in favor of the plaintiff might support the verdict, a mere general verdict in his favor involves too much of uncertainty to sustain a judgment.</p> <p>4. Where there was no motion before judgment to set aside the verdict and for a new trial, and the order denying such a motion made after judgment is not brought up by appeal, this court cannot, on appeal from the judgment, consider the question of the sufficiency of the evidence to support the verdict on the question of the amount of the damages.</p>

<p> Railroads: Injury to traveler on street: Defective crossing: Duty of company: Notice of defect: Instructions to jury .-'Negligence of trainmen: Oourt and jury: Submission of issues: Evidence: Depositions of ¿persons present in >oourt: Attorneys: Improper arguments: Appeal: Exceptions. </p> <p>1. In an action against a railway company for injuries alleged to have been caused by reason of plaintiff’s foot being caught between a rail and planking at a street crossing, so that he was held until an engine struck him, the evidence is held to ¡sustain a finding by the jury that the crossing, at the time of the accident, was insufficient for public use.</p> <p>2. A charge to the jury, in such case, that it was the duty of the defendant to maintain the crossing in a reasonably safe condition for public travel, including foot passengers as well as vehicles, and to exercise reasonable and ordinary care in keeping the same in repair and reasonably safe for public use, was not erroneous; nor was there error in refusing to charge to the contrary or more specifically.</p> <p>3. It appearing that the insufficiency, if any, was the result of wear and use and was plainly to be seen by any person who went near it, it was not error to direct the jury that, if they found the insufficiency existed, they should further find that defendant had notice of it.</p> <p>4. Whether defendant’s employees on the train were negligent in not discovering plaintiff and stopping the train in time to prevent the accident, is held to have been a question for the jury and to have been fairly submitted to them</p> <p>5. The .question at issue whether plaintiffs foot was caught and held- until injured, though not specifically submitted to the jury, is held to have been determined in the affirmative by their finding that the insufficiency of the crossing, and negligence of defendant’s employees in not discovering plaintiff in time to prevent the accident, were the proximate causes of the injury — the charge of the court upon that subject being such that in so finding the jury necessarily found that the plaintiff’s foot was caught and held as stated; and defendant, having requested the consideration of the question in that connection, cannot complain.</p> <p>6. Depositions of mere employees of a corporation which is a party to the action, taken under sec. 4096, Stats. 1898, as amended by ch. 244, Laws of 1901, are not admissible in evidence against the objection of the corporation, when the deponents are present in court, subject to be called and examined as witnesses in the ordinary yray.</p> <p>7. For counsel to read to the jury and apply to the case in hand, extracts, purporting to be extracts, from.the opinion of the supreme court in another case, and to contend that the jury ought not to be directed to disregard such argument and authority, was an abuse of privilege; and where the trial court sustained an objection to such reading and directed the jury to disregard it, exceptions to the reading and remarks of counsel were not necessary to bring the matter before this court for review.</p>

J. Vinje, Circuit Judge. Plaintiff, a Wisconsin railroad corporation, owning a line of road extending from Duluth and Superior south-westward through Minnesota, Iowa, South Dakota, and Nebraska,… Held: as conclusion of law, that the elevator was not necessarily nsed in operating the plaintifP’s railroad, within the meaning of' snbd. 14, sec. 1038, Stats. 1S9S; hence,that it was properly taxable, and entered judgment dismissing the complaint, from which the plaintiff appeals.

<p>Appeal from a judgment of tbe circuit court for Douglas county: A. J. Vinje, Circuit Judge.</p>

<p> Jlailroads: Stopping train across street: Municipal ordinance: Injury to traveler: Noise of locomotive: Appeal: Matters reviewed. </p> <p>1. To allow a train, to stand on one street, not obstructing travel thereon, hut with its head end reaching-slightly into a cross street, was not a violation of a city ordinance prohibiting the stopping of any train “across any street” for longer than a certain time.</p> <p>’2. A railway company is not liable for the consequences of such noises on or near public streets, made by its locomotives or trains, as are incident to their operation.</p> <p>•3. A ground of liability not pleaded or considered in the .trial court cannot be considered on appeal from a judgment of nonsuit.</p>

<p>Appeal from a judgment of tbe circuit court for Chippewa county: A. J. Viitje, Circuit Judge.</p> <p>The complaint, as amended by certain admissions on the trial, alleged that a certain highway bridge in the defendant town was insufficient in construction and out of repair, to the hnowledge of the defendant; that the plaintiffs, on October 11, 1902, were carefully moving a traction engine, wbicli itself weighed not to exceed 12,800 pounds, but with its equipments, attachments, and the load which it was hauling exceeded seven tons in weight; that while all of said outfit was upon said bridge, but only the engine itself upon the span in question, said span gave way by reason of its insufficiency and want of repair, precipitating the engine to the stream below, and causing it substantial injury; that said breaking was caused wholly by the said span being insufficient to sustain such weight of 12,80Q pounds; “that what said engine was moving at the time, other than its equipments and attachments, did not in any manner cause or contribute to the breaking of such bridge, not being upon that span of the bridge at the time; that the failure on the part of the plaintiffs to lay planks upon that part of such bridge did not in any manner cause or- contribute to the breaking thereof,” it being conceded that the plaintiffs wholly omittted to lay planks across said bridge. There were also the usual allegations of plaintiff’s ignorance and the town’s knowledge of the defects, absence of negligence on plaintiff’s part, and the giving of notice of the injury, etc.</p> <p>Upon the trial, an objection to any evidence under the complaint in the nature of a demurrer ore terms was sustained, and judgment entered dismissing the complaint, from which plaintiffs appealed.</p>

<p>Appeal from an order and judgment of the circuit court for Douglas county: A. J. Viitje, Circuit Judge.'</p> <p>This action was begun by respondent, a resident taxpayer of the town of Nebagamon, to restrain the officers of the town from exercising th,e powers conferred by ch. 40, Stats. 1898. The following facts are admitted by the pleadings:</p> <p>Respondent is a taxpayer in the town of Nebagamon, which is a duly organized town, and be brings this action in behalf of himself and of all other taxpayers of the town. The town contains the unincorporated village of lake Nebagamon, with a population of more than 1,000. The electors of this town, at an annual town meeting in April, 1902, adopted the following resolution:</p> <p>“Resolved, that the town of Nebagamon> Douglas county, Wisconsin, shall exercise and have conferred upon it all powers relating to villages and which are conferred upon village boards by chapter 40, Wisconsin Statutes 1898, excepting those the exercise of which would conflict with the statutes relating to town boards.”</p> <p>On duly 16, 1903, at a special meeting of the board of supervisors of the town, a resolution was adopted declaring the necessity of providing fire protection for the village by the purchase of appropriate apparatus and the construction and maintenance of a sufficient waterworks system for extinguishing fires. The resolution provided that bonds to the amount of $3,500 be issued to raise a fund to cover the expense of securing the apparatus and installing the waterworks plant, with a general specification for the proper construction and installation of the plant. The clerk of the town was also directed to give the required notice for a special town meeting for the purpose of voting on the question of issuing these bonds, under ch. 312, Laws of 1903. The resolution further provided that the question of the levy of an annual tax to pay the interest and principal of these bonds when due should be submitted at a special town meeting of the electors, as provided by ch. 309, Laws of 1903, in case a request be made under sec. 788, Stats. 1898. A request of twelve qualified electors of the town was duly signed and filed with the clerk for the calling of a special meeting to vote on the question of issuing bonds as contemplated by the resolution. Notice of a special meeting of the town to vote on the question of issuing the bonds for the purposes above stated, and for the levy of a tax to pay tbe principal and interest on tbe bonds, was given by tbe clerk, and published in tbe Nebagamon Enterprise, a weekly newspaper published in tbe village of Lake Nebagamon, fixing tbe 11th day of August, 1903, and designating tbe place where tbe meeting was to be held. It also appears that tbe voters, by a majority of tbe votes cast, adopted tbe two propositions submitted. Appellants further allege that tbe town board, at a meeting held August 24, 1903, determined that tbe fire protection contemplated by tbe resolution of July 16, 1903, be furnished, and adopted general plans for installing tbe waterworks plant, and they also adopted a form of bond to be issued as voted by tbe electors on tbe preceding August 11th. An in junctional order in this action was served, restraining them from taking any further steps in carrying out tbe enterprise.</p> <p>Kespondent demurred to tbe answer upon tbe ground that it appeared upon tbe face thereof that tbe matters alleged did not constitute grounds justifying tbe town board in proceeding under tbe resolution of July 16, 1903, and tbe subsequent proceedings, to install tbe water plant or issue tbe bonds to raise money for this purpose. Tbe court sustained tbe demurrer to tbe answer, and awarded judgment restraining them permanently from issuing, executing, selling, delivering, or negotiating any of the bonds as contemplated by tbe board. This is an appeal from tbe order sustaining tbe demurrer, and from tbe judgment perpetually restraining appellants and their successors from proceeding in tbe matter as stated.</p>

<p> Highways: Defects: Injury to traveler: Evidence: Admissions by town officer, hoto far binding: Instructions to jury: Proximate cause: Contributory negligence: Court and jury. </p> <p>1. Evidence that at the foot of a hill, where the roaa turned at a right angle, there was a rut or depression in the outer wheel track from eight to twenty-three inches deep is held to sustain a finding of the jury that the highway was not in a reasonably safe condition.</p> <p>2, In an action against a town for injuries alleged to have been caused by a defect in a highway, the chairman of the town testified for the defendant that he was very familiar with the road and that it had been in practically the same condition before the accident that it was on the day thereof; but further testified that there was no such defect as that claimed by the plaintiff. Held, that the defendant was not conclusively bound by such testimony of its chairman, so as to preclude it from showing that there was no defect in the highway prior to the accident of which defendant had or should have had notice.</p> <p>3. The refusal to give an instruction to the effect that plaintiff could not recover if, for her own pleasure or convenience, she left the traveled track at the place in question and went ■ upon a part of the highway not prepared or used for travel, is held not error, in the state of the evidence, even though the instruction stated the law correctly.</p> <p>4. The questions of proximate cause and contributory negligence are held, upon the evidence, to have been for the jury.</p>

<p> 'Apiieal: Findings 6y referee. </p> <p>Findings by a referee, confirmed by the trial court and based upon sufficient evidence, will not be disturbed on appeal.</p>

<p>Appeal from a judgment of the circuit court for Polk county: A. J. ViNje, Circuit Judge.</p>

<p> 'Appeal from, justice’s court: Bight, of appellant to dismissal. </p> <p>The appellant from a justice’s court to the circuit court may have his appeal dismissed against the objection of the opposite party.</p>

<p>'Account stated: StLrgJiarging: Promissory notes as payment or as \ collateral security?</p> <p>In the statement of an account between a corporation and its sales agents, certain notes, designated “sundry notes as collateral on machine account” were turned over to the corporation and were treated as a payment, their face valu'e being credited to the agents in determining the balance due from them to the corporation. In a subsequent action by the corporation upon account stated, the agents admitted the stating of the account, but claimed an overpayment thereon and demanded judgment for the excess. Held, that upon such pleadings the account could not be surcharged. Defendants were not entitled to a further credit of the sums collected by the plaintiff on said notes, nor could plaintiff recover from them the amount by which such collections fell short of the face value of the notes.</p>

E. DuNwiddie, Circuit Judge. Tbis is au action in equity to set aside certain conveyances of real estate and to obtain other equitable relief on tbe ground that the conveyances were made in fraud of tbe plaintiff’s rights as a creditor.

E. DüNwikdie, Circuit Judge. Plaintiff, an infant, paid defendant $40 as compensation for tbe privilege of taking a course of study in telegraphy at its school. A receipt for such payment, called a scholarship, was delivered to plaintiff by defendant. Thereafter plaintiff concluded not to enjoy such privilege, and demanded a return of the money, which was refused.

F. DuNwiddie, Circuit Judge. Action commenced December 26, 1901, on a promissory note dated December 10, 1893, payable in sixty days to the. plaintiff, a foreign corporation, at tbe Bank of Lodi, Wisconsin; defendant tben being a resident of Wisconsin.

E. DuNWiddie, Circuit Judge. This action was brought by. respondent to recover tbe money paid on three insurance policies issued by appellant. It is alleged that appellant’s agent practiced a fraud on respondent and his assignors in issuing the policies, and thereby unlawfully obtained the money sought to be recovered.

F. DuNwiddie, Circuit Judge. This is an action to recover tbe value of tbe plaintiff’s share of a quantity of cboese wbicb tbe complaint alleges was owned by the plaintiff and tbe three defendants and Michael Sullivan, Chris.

W. BueNell, Circuit Judge. Action upon a claim for personal injuries. Tbe facts alleged in tbe complaint are these: April 29, 1900, plaintiff, Avbile traveling upon tbe public sidewalk on tbe north side of Mill street in tbe defendant village, about one hundred feet Avest of ITigb street and in front of lot 16 north of Fox River, belonging to tbe Xundy estate, was tripped up by a loose plank forming a part of such walk, severely injuring her.

W. BueNell, Circuit Judge. This action is in all respects upon the same cause as that attempted to be commenced against the village of Winne-conne before the same had any existence as a legal corporation, which was considered and disposed of adversely on plea in abatement in the case reported in 111 Wis. 10, 86 N. W. 689, decided June 20, 1901.

Rat Stevens, Circuit Judge, The material facts of the case, as found by the court and supported by the evidence, are as follows: Respondent’s father entered lot 4 of section 4, town of Eort Winnebago, Columbia county, in 1850. Upon complying with the requirements under the law as to payment for the land, he was entitled to a patent from the government in December, 1869.

<p> Criminal law and practice: Insanity: Evidence: Expert witnesses: Hypothetical questions: Rebuttal: Discretion: Constitutional law: Trial of main issue by jury which has found defendant sane: Re-examination of jurors: Improper remarlos of counsel: Hew trial: Prejudice or misconduct of jurors: Instructions to jury: 'Test of insanity: Immaterial errors. </p> <p>1. In a prosecution for murder, a reasonable doubt of the sanity of the accused is held not to have been so clearly shown by the evidence as to justify the court in holding as matter of law that the verdict finding him sane was wrong.</p> <p>2. Defendant shot and killed a man who, in a carriage together with another couple was accompanying defendant’s wife home after an evening at the theater and a subsequent luncheon. On trial of the special issue of insanity, he introduced evidence to show his unusual affection and devotioi^ towards his wife and child; that he was ignorant of any fact which should cause him to question her fidelity; that when he learned of her conduct on that evening, casting a suspicion upon her faithfulness to the marriage vow, it so shocked him as to cause an epileptic seizure, resulting in epileptic insanity which continued until after the homicide, rendering him irresponsible for the act. Held, that it was proper to permit the state to show that defendant had kept a saloon frequented by women of ill repute, including his wife; that he kept them there for immoral purposes; and that while under arrest for keeping a disorderly house he had married his wife in order to make her incompetent as a witness against him. ,.</p> <p>3. An hypothetical question to an expert witness need not embrace all the material facts in evidence hearing upon the subject of inquiry.</p> <p>4. A medical expert testified that in his opinion defendant was afflicted with epilepsy at about the time of the homicide. It appeared that this opinion was based almost wholly upon the description given by defendant of his past symptoms, at a single interview, when he was not suffering from the ailment; and that the witness had never seen him suffer from epilepsy or treated him therefor. It did not appear what examination of defendant the witness had made; and there was no other evidence of some of ■ the symptoms which defendant had detailed to him. Held, that the opinion of the witness, above stated, was properly stricken out.</p> <p>5. Where defendant, having the affirmative on the special issue of insanity, had offered evidence as to a certain injury to his head as the cause of his mental condition, going fully into the question, and the testimony for the state, tending to show that his health and mind were not impaired by such injury, was merely a refutation, without developing any new phase of the subject, it was not an abuse of discretion for the trial court to refuse to receive further testimony on the subject offered by defendant.</p> <p>6. In a criminal case, the jury which has passed upon the special issue of insanity and found the defendant sane is not incompetent to try the main issue, and sec. 4699, Stats. 1898, providing that the trial of such main issue shall proceed before the same jury, does not violate the right to trial by an impartial jury, guaranteed by sec. 7, art. I, Const.</p> <p>7. The trial of the special issue of insanity and of the general issue upon the plea of not guilty is one single continuous trial, and after the jury has passed upon the special issue defendant has no right to re-examine them as to their qualifications to try the remaining issue.-</p> <p>8. To warrant the trial court in granting defendant’s request, made after the jury had passed upon the special issue, to re-examine them as to their qualifications to sit originally, there should be a clear and satisfactory showing of the facts upon which such request is made.</p> <p>9. The jury having been carefully and fully admonished not to give any consideration to comments of counsel for the state addressed to the court in their hearing, and to disregard certain portions of the argument to them which the trial court deemed improper, it is held that there was no error in denying a motion for a new trial on the ground of such improper comments and argument.</p> <p>10. The verdict in a criminal case should not he set aside on the ground of the prejudice of a juror unless the fact is satisfactorily established; and the decision of the trial court on that question should not be disturbed unless against the clear weight of the evidence.</p> <p>11. Upon a motion to set aside the verdict for prejudice of a juror, the juror’s affidavit in denial of his prejudice m,ay be received and considered.</p> <p>12. Upon a motion to set aside the verdict on the ground that some of the jurors, during the progress of the trial, had read certain newspaper articles which, it was claimed, prejudiced their minds against the defendant, the decision of the trial court that no improper influence had affected the verdict is held not to be against the clear weight of the evidence.</p> <p>13. The statement, in one portion of the charge, that the test of insanity whs the presence or absence of delusions was not a prejudicial error where, construing the . charge as a whole and as the jury undoubtedly understood it, they were given the broadest latitude to find the fact of insanity if defendant was incapable of distinguishing between right and wrong by reason of a perversion of his mental and moral faculties, or if he was thereby .rendered unconscious of the nature of the act.</p> <p>14. Such statement, even if taken by itself, was not prejudicial error in this case, since the evidence showed that defendant’s acts, at the time of the homicide, were consciously directed to the fulfilment of a purpose, and that such purpose, if the product of an insane mind, must have been accompanied by a delusion of some kind.</p>

<p> Replevin: Logs and lumber: Tax title: Possession: Liens: Title to land: Fraud: Constructive trust: Burden of proof: Appeal: Presumption that error is prejudicial: Recharging jury to correct erroneous instruction: Costs: Time limited for perfecting judgment. </p> <p>X Where the grantee in a tax deed fair upon its face had timber cut from the land and sawed into lumber and, through his agent, had actual possession of the lumber, his title was sufficient to sustain replevin for such lumber against a mere trespasser who did not connect himself "with' any superior, adverse title; and evidence of the invalidity of the tax deed, or that a stranger to the action was in possession of the land, was immaterial.</p> <p>'2. The lumber, at the time of the talcing by defendant, having been in the possession of plaintiff, defendant had no lien thereon for expenses of logging and sawing, even if their mutual agent had wrongfully used some of defendant’s money therefor.</p> <p>■3. Land was purchased by one 03. in the name of his wife, payment being made by B.’s note and by a draft on one S., with whom B. had deposited moneys belonging to defendant and also moneys claimed to belong to his wife. Defendant claimed that the purchase was made by B. as his agent. Held, that the deed prima facie conveyed the legal title to B.’s wife, and the burden was upon defendant to show either fraud on the part of B., imputable to his wife by reason of his agency, or a constructive trust resulting from the use of’ defendant’s money in making the purchase.</p> <p>4. Where error is committed by the trial court it is presumed to be prejudicial and the contrary must be made to clearly appear; but where the .action of the court was not in itself erroneous and became so, if at all, only because it misled the jury, this latter fact is against all presumption and must be clearly shown.</p> <p>'5. The fact of recharging the jury to change an erroneous instruction previously given is not ground for reversal unless prejudice therefrom he made clearly to appear.</p> <p><6. Sec. 2894a, Stats. 1898 (providing that whenever a finding shall be filed or a verdict rendered, if the successful party fail to perfect the judgment and cause it to be entered thereon within sixty days, the clerk of the court shall prepare and' enter the proper judgment without costs),.does not fully apply where the verdict merely finds certain facts, from which the-court may judicially decide upon more than one kind of judgment. Not until the court makes the necessary judicial decision in such a case do the sixty days begin to run within, which the successful party may tax his costs.</p>

E. DuNwiddie, Circuit Judge. This is an action to quiet the title to lands fronting on Public avenue, in Beloit, and to establish the boundaries of that avenue, and for a mandatory injunction.

<p> Railroads: Negligence: Injury to passenger: Parting of train: Presumptions: Court and jury: Rules of company: Instructions to jury: Proximate cause: Limiting carrier’s liability. </p> <p>1. The fact that a railway train, after having broken in two, ran several miles in that condition, raises a presumption of negligence.</p> <p>2. A long train ran three miles or more after having broken in two, and then, by a collision between the parts, plaintiff, a passenger, was injured. The trainmen, who knew that such breaks were liable to occur and that they must be on the lookout for them, had. performed all the duties required of them by the rules of the company, but had made no effort to ascertain the condition of the train except to look from the ends of the train, knowing at the time that mere looking would not disclose such a break as in fact existed. Meld, that it was a question for the jury whether they were negligent.</p> <p>3. A 'traveler upon a railway train is entitled to have reasonable precautions taken for his safety, and such precautions are not necessarily measured by the rules of the railway company.</p> <p>4. A definition of proximate cause, in the charge to the jury, as “the efficient cause, that which produces the injuries complained of, and which, in the light of the attending circumstances ought reasonably to have been foreseen by persons of ordinary intelligence and prudence,” could 'not reasonably have been understood to mean that the cause ought to have been foreseen, instead of the effect; and the faulty grammatical construction was therefore not prejudicial.</p> <p>5. The omission from such definition '■of words characterizing the injuries as a “natural and probable result” of the cause, was not a prejudicial error, that idea being necessarily implied; but such omission is not approved.</p> <p>6. One nominally traveling on a railway train without payment of fare is a passenger for hire where the agreement for his I carriage is part of the mutual agreement for the carriage of his live-stock for hire on said train.</p> <p>7. A stipulation in the contract of carriage, limiting to an arbitrary sum the liability of a railway company for injuries to a passenger for hire, is void.</p>

<p> Contracts: Sate of stand/ing timber: Cutting prevented by threats: Extension of time: Sustaining demurrer when judgment would be fruitless. </p> <p>1. Plaintiff, by a contract of sale not under seal, acquired the equitable ownership of standing timber, to be cut and removed by a certain date. A subsequent purchaser of the land, to whom it was conveyed, without reservation of -the timber, but who, it was alleged, knew or ought to have known of plaintiff’s rights, claimed to be the owner of the premises and notified plaintiff that if it cut any timber it would be' held responsible for the highest market value thereof under sec. 4269, Stats. 1898; and because of such threat of suit plaintiff desisted from the cutting. Held, that this was not such a prevention of the exercise of plaintiff’s right as would entitle it to equitable relief extending the time within which the timber might be cut.</p> <p>2. In an action to establish plaintiffs equitable title to standing timber and for an extension of the time within which it had the right to cut and remove it, such time expired after service of the complaint but before a general demurrer thereto was served. No right to an extension of the time being shown, the demurrer was properly sustained, since a judgment merely establishing the equitable title which plaintiff had when the action was commenced would have been of no value.</p>

<p>Appeal from an order of the circuit court for Oconto county: S. D. -Hastings, Circuit Judge.</p> <p>Appeal from an order denying defendant the privilege of examining the president of the plaintiff company under sec. 4096, Stats. 1898. The alleged purpose of the proposed examination was to enable the defendant to frame his answer to the complaint, which complaint contained several causes of action, each to recover damages for the conversion of a specified quantity of sawlogs alleged to have been, at the time of the conversion, property of one not a party to the action, to have been then located on a specified governmental subdivision of land, and the claim for redress to have been for value assigned to the plaintiff before suit brought. The alleged owner of the property when the conversion occurred was not the same in all cases.</p> <p>To comply with sec. 4096, Stats. 1898, the.notice of taking the deposition when served was accompanied by an affi-advit on behalf of the defendant, stating “the general nature and object of the action,” and for points upon which a discovery was desired, as to each cause of action, in effect, that knowledge was needed respecting the name of the person who made the measurement and determined the amount of the logs; also by whose authority the measurement was made; also of all that would be disclosed by an inspection of the reports of the measurements possessed by plaintiff, and of the assignment of the claim to plaintiff, and all other facts relevant to the cause of action. Before the time set for the ■examination, on motion of plaintiff’s attorney, duly noticed upon the attorney for defendant, an order was entered by the circuit court prohibiting the latter from proceeding further under said notice, because the points, so called, upon which discovery was sought, related wholly to matters of evidence and not to pleadable facts, and no discovery was necessary to enable defendant to plead, and because the moving papers failed to satisfy all the conditions precedent to the right to proceed under sec. 4096 aforesaid.</p> <p>Notice of the entry of such order was served upon the defendant’s attorney March 2, 1904. March 4th thereafter, defendant secured a judicial direction under sec. 3060, Stats. 1898, as to the requisite bond to stay proceedings under the order aforesaid in case of an appeal therefrom to the supreme court. The same day a copy of the order containing such direction, with a notice of appeal to this court from the first order, was served on plaintiff’s attorneys, but no undertaking, or copy of one, accompanied the papers so served or was then or thereafter served upon plaintiff or its attorneys, except as hereafter stated. March 9th, after said service, defendant’s counsel filed with the clerk of the circuit court the notice of appeal with proof of such service, and the undertaking required by sec. 3052, Stats. 1898, to perfect the appeal. Such undertaking did not conform to the condition of a stay of proceedings pending the appeal. Thereafter, and prior to March, 1904, without proof of the service of any undertaking, upon the appeal on plaintiff or its counsel, the clerk of the circuit court in due form made a return to this court.</p> <p>May 27th, thereafter, and subsequent to the filing in this, court of such return, a motion was duly noticed upon defendant's counsel to dismiss the appeal because of the aforesaid failure to serve an undertaking under sec. 3060, Stats. 1898, and of the failure to obtain a stay of proceedings pending the appeal, and the service of an answer to the complaint without the aid of the discovery sought, which service had occurred and constituted, as alleged, a waiver of the appeal. The notice of motion was based on the record in this court, and an affidavit showing the facts referred to in such notice. Before the hearing upon such motion, and after the time for appealing from the order complained of had expired, defendant caused a copy of the undertaking filed as aforesaid to be-served upon plaintiff’s attorneys, which was seasonably returned. No order was obtained from this court or the circuit, court permitting the omission to so serve the undertaking-at the proper time to be thus or in any way cured. Proof of the service made was filed with the clerk of the circuit court, and at the request of defendant’s attorney a return thereof was made to this court, which was filed before the motion to dismiss was due to be heard.</p> <p>When such motion was called for hearing June 9, 1904, defendant’s attorney represented to the court by affidavit that plaintiff’s attorneys, without making any claim that the appeal had not been perfected before making the motion to dismiss, admitted service of the required printed case, which informed them that the undertaking had been filed as heretofore stated; that the appeal was taken in good faith; that the delay in serving the undertaking worked no injury to plaintiff; that such failure was a mere mistake of defendant’s attorney; tbat until tbe motion papers were served on bim be supposed tbe proper service bad been made; tbat as soon as be was informed of tbe facts tbe efforts heretofore mentioned were made to correct tbe mistake, and tbat tbe answer served was not intended to be final. Upon such affidavit and the record on file, defendant’s counsel moved tbe court to strike out tbe affidavit respecting tbe service of an answer to tbe complaint, and, further, if'it should be held tbat tbe appeal .was not properly perfected, tbat it might be perfected upon such terms as tbe court might deem equitable. Both motions were set down for bearing when tbe cause should be reached on tbe calendar. Thereafter, and on July 27, 1904, defendant’s attorney served upon plaintiff’s attorneys a copy of an undertaking under the order of March 4, 1904, filing tbe original with tbe clerk of tbe circuit court, and causing bim to make return thereof to this court, which return was duly filed July 30, 1904.</p>

<p>Appealable order: Mandamus.</p> <p>An order In a mandamus action denying relator’s application for an order prescribing tbe questions to be tried by a jury, on tbe ground that tbe mandamus sought could not be sustained upon tbe case made by tbe pleadings, did not determine tbe action and prevent a judgment from wbicb an appeal might be taken, and is therefore not appealable under subd. 1, sec. 3069, Stats. 1898.</p>

<p> Criminal law and, practice: Writ of error to review order denying new trial: Amendment: Prosecution. </p> <p>1. A writ of error purporting on its face to have been issued to review a judgment of the court below, when in fact it was issued to review an order denying a new trial, may be amended by this court to show its true purpose; but such amendment will not be allowed where, under the. circumstances, the court would not permit the amended writ to be further prosecuted.</p> <p>2. Under sec. 4719, Stats. 1898, a writ of error may be issued to review an order refusing a new trial in a criminal case, when made before judgment; but if the trial court enters judgment before the issuance of the writ or before judgment thereon, this court will not allow such writ to be prosecuted further, but will require the plaintiff in error to sue out a writ directed to the judgment.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. Hastings, Circuit Judge.</p> <p>Action to set aside taxes ami restrain their collection. Plaintiffs are the trustees of the Green Bay Lodge of ilia Benevolent and Protective Order of Biles, and as such hold title to the clubhouse property in the city of Green Bay. It was stipulated as a matter of fact that the Benevolent and Protective Order of Elks of America, of which this is a local lodge, is a fraternal organization, using its funds for lodge purposes, with no pecuniary or insurance benefit to the members of the order. The order is made up of local lodges in cities in the United States having a population of over 5,000, which are under the control of the grand lodge. The expenses of the grand lodge are provided for by a tax on the members of the order, charter fees, and by some other revenues arising from transactions between it and the local lodges. These revenues are devoted to the expenses of its sessions, to salaries, and to the expenses of its general officers. The grand lodge is also authorized to assess a per capita tax of not to exceed twenty-five cents on each member for the maintenance of a home for aged and indigent Elks. Such a. home has been established and is being maintained in the state of Virginia. The local lodge at Green Bay has made contributions to the support of this home, though the amounts are not shown. The members are taught to be observant of benevolence and charity, and to practice these ennobling attributes in dispensing help to the deserving and needy among its members, and to such other persons as may receive aid at their hands. It appears that considerable sums are contributed by the lodges, and are expended for charitable purposes throughout the country. Oreen Bay Lodge has never contributed for such purposes out of its treasury. On one occasion it contributed a considerable sum for the burial of one of its members, but it was subsequently reimbursed by private parties.</p> <p>The membership of the local lodges is composed of persons selected by the lodge upon application for membership. Every local lodge provides the method and means for raising funds to defray all necessary expenses incurred in maintaining the lodge. The organizations are voluntary associations, and are under the government of a constitution and the bylaws of the order, and are subject to such regulations as each lodge may adopt, not inconsistent with the object and purposes of the order and the general government imposed by the grand lodge. Every such local lodge must procure a charter from the grand lodge to constitute it a branch of the order, and this charter may be surrendered or forfeited upon the grounds prescribed by the governing body.</p> <p>The property in question consists of the land owned by the lodge, with a tw®-story and basement brick clubhouse and lodge building. The basement is devoted to bowling alleys, baths, etc., the first floor to reception and club rooms, billiard. pool table, and card rooms, 'a kitchen, a buffet and dining room; and the second floor is used as a lodge room and has the accompanying anterooms and halls. The clubhouse and the lodge rooms and all the contents are the property and aro under the control and management of the lodge. The second floor of the building is used for holding the lodge meetings, while the first floor and basement are used for the accommodation of the lodge members and their families for fraternal and social intercourse and as a place of entertainment and amusement, with the usual clubhouse buffet and dining room accommodations for refreshments. This building, with its accommodations, has not been leased or rented. The cost of the real estate, buildings, fixtures, and furnishings amount to about the sum of $27,000.</p> <p>The revenues of the lodge consist of the initiation fees, the annual membership dues, and the receipts from the use of the bowling alleys, billiard and pool tables, and from the sales of refreshments at the buffet and dining room. This revenue goes into the lodge treasury to defray the expense incident to the maintenance _ of the lodge and building and all the purposes of the order. No pecuniary profit,- by way of payment of any money as dividend, is awarded to any person or member of the order. All charges to members, aside from annual dues, are scaled to meet the needs of the lodge to pay the running expenses and obligations, including principal and interest due on the loans which are secured by a trust deed upon the property. The dlubhouse features and privileges are not free to members, but under the control and management of the lodge, many of them are only to be enjoyed for a money consideration, under a fixed scale of prices, and whatever profits, if any, arise therefrom go into the lodge treasury. The privileges of the clubhouse may be extended to guests of the members under the restrictions imposed and at the member’s expense. Four or five men who have loaned money to the lodge, and are not members, are afforded tbe privileges of tlie club. They have no voice in the control and management of the property, nor in the affairs of the lodge, and they are treated as guests.</p> <p>The circuit court held that the property was liable to taxation, and awarded judgment accordingly, from which judgment this appeal is taken.</p> <p>They contended, inter alia, that- the order of Elks is a “benevolent” association within the meaning of the statute. St. Joseph’s Hospital Asso. v. Ashland Go. 96 Wis. 636; Ghamberlain v. Stearns, 111 Mass. 267; Norris v. Thomson’s Ex’rs, 19 N. J. Eq. 307, 313; Thomson’s Ex’rs v. Norris, 20 N. J. Eq. 489, 523; Pell v. Mercer, 14 E. I. 412; Estate of Hinckley, 58 Oal. 457, 509j 510; Harrington v. Pier, 105 Wis. 485, 520, and cases cited. It does not matter, even were it a fact, which it is not,, that the charity, or benevolence of the Elks is limited to its own members. A work,may be “charitable” or “benevolent” even though it be limited to a class of persons, if within that class its operation is indiscriminate. Harrington v. Pier, 105 Wis. 485, 521; Indianapolis v. Grand Master, 25 Ind. 518; Petersburg v. Petersburg B. M. Asso. 78 Va. 431; Hibernian B. Soc. v. Kelly, 28 Oreg. 173, 30 L. E. A. 167; M. E. Church v. Hinton, 92 Tenn. 188, 19 L. E. A. 289; Savannah v. Solomon’s Lodge, 53 Ga. 93; Stale ex r-el. Bertel v. Board of Assessors, 34 La. Ann. 574. The property of such orders as the Masons and other similar fraternal orders, when the other restrictions of the statutes have been complied with, has been uniformly held, under statutes similar to ours, to be exempt as charitable and benevolent organizations. The property in question here is within this rule. Indianapolis v. Grand Master, 25 Ind. 518; Petersburg v. Petersburg B. M. Asso. 78 Va. 431; S. G. 8 Corp. Gas. 484, and notes; Hibernian B. Soc. v. Kelly, 28 Oreg. 173, 30 L. E. A. 167; Bitterer v. Grawford, 157 Mo. 51, 50 L. E. A. 191; State ex rel. O’Malley v. Lesueur, 103 Mo. 253, 13 S. W. 237; Burdine v. Grand Lodge, 37 Ala. 478; Savannah v. Solomons Lodge, 53 Ga. 93. Tbe property is not otherwise used for pecuniary profit. It is well settled that an institution does not lose its charitable character and its consequent right of exemption from taxation because some of the recipients of its bounty pay therefor. 12 Am. & Eng. Ency. of Law (2d ed.). 342, and notes; St. Joseph’s Hospital- Asso. v. Ashland Go. 96 Wis. 636; M. E. Ghurch v. I-Iinlon, 92 Tenh. 188, 19 L. R. A. 289, and notes. In fact this court has held that even where such association makes a profit in sucb manner, the proceeds of which are used in the furtherance of its charitable or benevolent work, its property is nevertheless exempt. St. Joseph’s Hospital Asso. v. Ashland Go., supra. It has frequently been held that the mere incidental use of property, otherwise exempt under such statutes, for secular purposes will not affect the right of exemption. Notes and cases cited in 19 L. R. A. 289 ei seq.</p> <p>They argued, among other things, that the Green Bay Lodge of Elhs is not a “benevolent” association within the meaning of subd. 3, sec. 1038, Stats. 1898. In order that the property of the lodge shall be exempt from taxation, the benevolent feature must be the principal object of the association. Sheren v. Mendenhall, 23 Minn. 92. While the constitution and by-laws may serve to some extent to show what the order is, the general character of the lodge must be determined from the work it actually does. The word “exclusively” in the statute has a definite meaning, and it was plainly the intention of the legislature to grant the exemption only to that property which is used for the purposes of the association exclusively, and for no other purpose whatever. The lodge itself must use the property for the purposes for which it was organized. Orr v. Balcer} 4 Ind. 86; St. James Bd. Inst. v. Salem, 153 Mass. 185, 26 N. E. 636; Y. M. 0. Asso. v. Mayor, 113 N. T. 187; Vail v. Beach, 10 Kan. 214. And these purposes must be benevolent if the property is to be exempt from taxation. Hibernian B. Soc. v. Kelly, 28 Oreg. 173, 30 L. R. A. 170.</p>

<p> 'Wills: Probate: Appeal from county court: Who is “person aggrieved": Legatee under earlier will: Evidence: Privileged communications: Physicians. </p> <p>1. On an appeal to the circuit court from an order admitting a will to probate, an alleged prior will, received in evidence and thus affording opportunity for comparison of signatures, etc., is, without other proof, foundation for a finding that such earlier document was signed by the testatrix and upon its face purported to be her will.</p> <p>2. A person named as legatee in an earlier will which might be valid if a later one were rejected, is a “person aggrieved” by, and is entitled to appeal from, an order of the county court admitting the later will to-probate.</p> <p>3. All information needfully acquired by a physician in and for professional treatment of a patient is privileged, under sec. 4075, Stats. 1898; and such privilege, being created for the protection of the patient, is personal to him and can be waived by no one else.</p> <p>4. In a contest over the probate of a will the attending physician of the testatrix cannot testify as to her mental competency, where his opinion on that subject is based entirely upon information derived from her statements or his own observation while treating her professionally and for the purpose of such treatment.</p>

<p>Appeal from an order of the circuit court for Ashland county: John K. PaRish, Circuit Judge.</p>

<p> Ejectment: Defective tax title: Payment as condition of recovery: To what date interest runs: Finding in lieu, of verdict. </p> <p>The date up to 'which, under sec.' 3087, Stats. 1898, the plaintiff in ejectment, as a condition of recovery, is to pay interest at the rate of fifteen per cent, per annum upon sums paid hy the defendant claiming title under a defective tax deed, is the date of thd decision as to the validity of the title, whether by verdict or hy a finding of the court in lieu of a verdict, and is not affected hy the fact that the amount to he paid is not finally determined until some time after such decision and after an appeal to the supreme court involving only the question of such amount.</p>

<p> Contracts: Acceptance of offer: Vendor and purchaser of lamdr Specific performance: Waiver of tender: Option assignable: Signature by one partner: Agency: Statute of frauds. </p> <p>1. An offer must he accepted in its exact terms in order that a contract should arise thereon, and any attempt to impose new conditions or terms in the acceptance, however slight, will ordinarily deprive it of any efficacy.</p> <p>2. A letter categorically accepting an offer to sell land contained also a request that the deed and abstract of tiue be forwarded to a certain bank, to be inspected by the purchaser and, if the title was found perfect, to be delivered to him on payment of the purchase price. In an action to compel specific performance by the vendors, -there was a finding, supported by evidence of conversation and correspondence between the parties, that such request was intended by the purchaser and understood by. the vendors simply as a suggestion and request and not as a condition of acceptance. Held, that the acceptance was sufficient.</p> <p>3. Where the vendors repudiated an executory contract for the sale-of land and notified the purchaser that no conveyance would be made for the agreed price, no formal tender of such price and demand for a deed was necessary to enable the purchaser to maintain an action for specific performance.</p> <p>4. An option in writing to purchase land within a certain time for a certain price creates an interest in the land and is assignable.</p> <p>5. Land owned by partners' was held for sale by one of them under an agreement authorizing him to exercise entire management and control. He gave a written option for its purchase, signed only by himself, informing the purchaser that he acted in the matter for himself and his copartner; and such copartner, with knowledge of the giving of such option, acquiesced therein. Held, that the partner signing was the agent of the other, and, although his authority was by parol, his signature, in effect on behalf of both, was sufficient under the statute of frauds to create a contract binding on both.</p>

<p> Husband and wife: Void agreement to separate: Equity: Compelling restoration of property conveyed: Pleading: Fraud: Duress: Conveyance by infant. </p> <p>1. Although, an agreement between husband and wife to separate and live apart is void as against public policy, a court of equity will not, in the absence of fraud, decree a restoration of property or the cancellation of deeds delivered pursuant to such an agreement.</p> <p>2. In an action to procure the restoration of property conveyed by a husband to his wife pursuant to an agreement between them to separate and live apart, the complaint, alleging ill treatment of plaintiff by his wife and that by reason of the consequent enfeeblement of his will and reason he was induced to make the conveyance sought to be set aside, but not showing that he was so feeble-minded as to be unable to comprehend his affairs or incompetent to transact his business, or that he did not fully understand the transaction and act with freedom in transferring the property, does not sufficiently allege fraud by way of duress.</p> <p>3. Plaintiff cannot have relief, in such a case, upon the ground that he was induced to make the agreement and the transfer to his wife by reason of the conveyance to him of certain land by his minor son, which conveyance was fraudulently intended to be repudiated by the son when he should com© of age, and was in fact so repudiated. Plaintiff is presumed to have known his son’s age and that he could not make a binding conveyance of land.</p>

<p> Administrators: Allowance for attorney’s fees: Personal liability: Jurisdiction of county court: Judgment: Collateral attach: Counterclaim. </p> <p>1. Although for services rendered to an administratrix in the settlement of an estate an attorney is not a creditor of the estate hut merely of the administratrix personally, yet where such administratrix, in her final account, has presented to the county court the question as to how much she should pay to the attorney out of the residuum of the estate in her hands, any question of jurisdiction of her person is waived, and the court, having full jurisdiction of the subject matter — i. e., the disposition of the funds in the hands of its officer — -may render a judgment allowing to her a certain sum, to he paid to the attorney for his services; and such a judgment is binding upon the administratrix and cannot he attacked collaterally.</p> <p>2. For the amount so allowed for the attorney’s services by the judgment of the county court, he may sue the administratrix personally in the circuit court as for money had and received to his benefit; and in such action she may counterclaim upon a promissory note given by the plaintiff.</p>

<p>'Appeal from a judgment of tbe circuit court for Ashland county: Joi-iN K. Paeisi-i, Circuit Judge.</p> <p>Action to recover damages for breach of contract for the sale of lumber. The complaint was to the effect that defendant contracted to sell plaintiff 100,000 feet of one-inch pine lumber then owned by the former and piled at Stad-ler’s mill, near the village of Butternut, Wisconsin, at $8 per thousand feet for the culls, and $15 per thousand feet for common or better, delivery to be made to the plaintiff free on board cars at Butternut upon demand by him within two months from November 15, 1902, and the customary inspection fees to be paid one half by each party; that defendant breached such contract by refusing to deliver the lumber when the same was duly demanded, or at all, to the plaintiff’s damage in the sum of $1,500.</p> <p>Tbe defendant, for answer to tbe complaint, denied all tbe allegations thereof, and alleged tbe making of a contract substantially as stated in tbe complaint, except tbat it was agreed, as part of such contract, tbat tbe cars for use in delivering tbe lumber to tbe plaintiff were to be furnished by him, tbe lumber to be delivered only upon bis demand within two months after November 15, 1902; that be would furnish tbe inspector to examine, grade, and measure tbe lumber, tbe expenses to be paid equally by tbe parties; and that plaintiff did not within tbe time specified, or before tbe commencement of tbe action, demand tbe lumber or furnish cars for use in delivering tbe same, or furnish or offer to furnish tbe inspector; 'that on tbe contrary be at all times neglected to make any demand for tbe lumber, and refused to accept tbe same.</p> <p>Tbe evidence showed tbat tbe contract was in writing and as follows:</p> <p>“Received of Paul Yogt of Milwaukee, Wis., Five (5) Dollars on account of sale to him by me, made this 15th day of November, 1902, of 100,000 feet more or less of pine one-inch lumber at Eight Dollars per 1,000 feet cull & Fifteen Dollars per 1,000 feet common or better now at Stadler’s Mill, f. o. b. cars Butternut, Wis., to be delivered upon demand within two months from above date. Inspection fees paid by both of us.</p> <p>“Dated at Butternut, Wis., Novbr. 15th, 1902. '</p> <p>“Josef SohieNebece.”</p> <p>Evidence was allowed, against objections by plaintiff's counsel, in effect that at tbe time such contract was made plaintiff verbally agreed to furnish tbe cars for use in delivering tbe lumber; also as to what tbe custom was between buyer and seller in regard to such matters. Tbe court instructed tbe jury, in substance, that tbe burden of proof was on plaintiff to establish by a fair preponderance of tbe evidence that defendant agreed to furnish tbe cars, and unless tbe jury were satisfied tbat he did so agree, defendant was entitled to recover; otherwise plaintiff was so entitled, and to tbe extent of the difference between the contract price for the lumber and the value at the time and place the same should have been delivered as agreed, if there were lumber, purchasable, of the quality and quantity contracted for at such time and place; otherwise the difference between such contract price and the value at such time at Milwaukee, less half the reasonable fees for the services of an inspector and what it would have cost to transport the lumber from the agreed delivery point to Milwaukee. The court required the jury to find whether “f. o. b.” as used in the contract meant free on board ears, instructing them that if such were the case it was defendant’s duty to furnish the cars unless there was an agreement to the contrary. The court further instructed the jury that plaintiff, in order to recover, must prove by a fair pre•ponderance of the evidence that the words “f. o. b. cars” as used mean that the defendant would furnish the cars for the shipment of the lumber..</p> <p>At the close of the evidence defendant’s counsel moved the ■court for a verdict, which was refused. The verdict was in favor of the defendant, and judgment was entered thereon, from which this appeal was taken, questions being duly saved •for review discussed in the opinion.</p>

Parish, Circuit Judge. Appeal from order overruling demurrer to the complaint, which alleged that plaintiff is the owner in fee and in possession of an undivided half of specified premises; that the defendant is the owner of an undivided half of said premises that the other parties are the respective wives of said owners; that no one except the parties have any interest in said lands; and that parties have no other estate jointly or in common.

Pabish, Circuit Judge. This is an action wherein the plaintiff seeks to recover the cost of 542,800 pieces of No. 1 white pine lath, at the agreed price of $3.25 per M. It alleges that it sold and delivered to defendants this quantity of lath at the agreed price, f. o. b. cars at Ashland; that defendants are indebted to it for the cost thereof, to wit, the sum of $1,764.10; and that no part of this sum has been paid.

PaRish, Circuit Judge. Proceedings to condemn land for the use of the petitioner, the Northern Pacific Railway Company. The railway company commenced these proceedings hy petition to the judge of the circuit court for Bayfield county for the condemnation of a strip of land, described in the petition, owned by the appellants, and lying in the village of Washburn, Bayfield county.

<p>Banlcs: Insolvency;; Winding-up action, by whom to be brought: Substitution of parties.</p> <p>Ch. 234, Laws of 1903, does not authorize the commissioner of hanking to bring an action to sequestrate the property and wind up the affairs of a state bank; and such an action having been brought by him, the application of creditors of the bank to be substituted as plaintiffs should have been granted.</p>

Paeish, Circuit Judge. The appeal is from an order adjudging defendants guilty of contempt and requiring of them payment of a fine of $200' and the costs and expenses of the contempt proceedings, taxed at $465, any item included therein not to he again taxed against the defendants in the action, and adjudging that defendant Flynn should be imprisoned in the county jail of Bayfield county till payment of such fine and costs and expenses.

'Appeal from a judgment of tbe circuit court for Bayfield county; JohN 3L Paeish, Circuit Judge. Tbe plaintiff and defendant were coterminous owners of land fronting upon tbe bead of Chequamegon Bay, at the extreme westerly end thereof. Tbe first of tbe accompanying diagrams, which is a modification of defendant’s Exhibit B, discloses tbe general shore line at this place, and also, by a dotted line, tbe limit of sixteen-foot navigable water.

Kay Stevews, Circuit Judge. The plaintiffs bring tbis action as taxpayers of tbe village, for themselves and all others similarly situated, to declare the proceedings of the village board void, and to restrain the board and village officers from taking any further steps in laying a proposed drain -which the village board had ordered and directed to be laid in an alley and streets of the village for the alleged purpose of removing the surface water and improving the streets…

Acarón, commenced in this court, for an injunction against the Secretary of State. This canse was submitted for decision on motions made by counsel for the respective parties upon the complaint and an-' swer. The pleadings, so far as necessary to the application of the principles which rule the cause, omitting details, are to this effect: 1.

<p> Judgment by default: Refusal to vacate: Dis'cretion: Appeal: Dis> respectful brief: Striking from files. </p> <p>1. An order refusing to set aside a judgment by default will not be disturbed on appeal except to remedy a clear abuse of judicial authority.</p> <p>2. Under Supreme Court Rule XXVII, a brief containing matter-disrespectful to this court is stricken from the files, with costs..</p>

<p>(1) Special verdict: Disregarding answer not called for. (2-4) Agency to sell machinery: Limits of territory: Right to commissions.</p> <p>1. A question in a special verdict was to be answered only in case the jury answered a previous question in the affirmative. They answered the previous question in the negative, but nevertheless proceeded to answer the later question. Held, that such answer to the later question should be disregarded.</p> <p>2.' A contract appointing an agent ior the sale of agricultural machinery at D. gave him “the privilege of making sales in ‘ the vicinity of D. aforesaid.” On it was printed the following indorsement: “The design of a vicinity contract is to pay an agent the stipulated commission on whatever machinery he may sell under the provisions of the contract, not in the territory of another agent who has the exclusive right to sell in a defined territory.” Another agent, under a similar contract, was located at R. Held, that the contracts did not ijx definite limits to the territory of the agents respectively, and that the agent at D. had the right to make sales in a locality for which D. was the market town although it was slightly nearer to R.</p> <p>3. A contract appointing plaintiff as defendant’s agent to sell its machines at a certain place did not require him to sell its machines exclusively. He had been, and at the time was, agent for other makers of similar machines. Defendant knew this fact, and the agency contract was made with reference to it. Held, that plaintiff did not forfeit his right under the contract to a commission on a sale of one of defendant’s machines, by reason of the fact that he had attempted to sell to the customer a machine of another make.</p> <p>4. A sale of defendant’s machinery was made in plaintiff’s territory, upon which, under the contract, he was entitled to a commission if the amount received by defendant on the sale exceeded the net price of the machinery. An action to recover such commission was tried on both sides upon the theory that defendant was chargeable with the market value in that county of old machinery taken in exchange for the new, and the jury found that such market value was a certain sum which, added to the cash received, made an amount greater than the net price. Held, that plaintiff was'entitled to his commission accordingly.</p>

<p> Execution: Supplementary proceedings: Statutes construed: Arresir Affidavit: Jurisdiction: Costs. </p> <p>1. Sec. 3032, Stats. 1898, is not merely ancillary to secs. 3030, 3031; and tlie affidavit under sec. 3032 need not also satisfy the-requirements of said other sections.</p> <p>2. To arouse jurisdiction to issue a warrant for the arrest of a judgment debtor, under sec. 3032, Stats. 1898, the affidavit on behalf of the creditor need not specify the property which it is claimed th.e debtor unjustly refuses to apply to the judgment.</p> <p>3. Where the misconduct of a judgment debtor has made necessary a proceeding under sec. 3032, Stats. 1898, an order awarding costs against him is proper under sec. 3038.</p>

<p>(1-3) Reference: Discretion: Res judicata: Second, application: Refusal to exercise discretion is error. (4-6) Evidence: Memoranda: Competency of witnesses: Contents of writing. (7) Counterclaim. (8) Instructions to jury: Wilfully false witness. (9) Yerdict: Perverseness. (10) Costs: Perfecting judgment.</p> <p>1. In sec. 2864, Stats. 1898, providing that “all or any of the issues in the action . . . may he referred,” etc., the word “may” does not mean “must” or “shall,” but the matter is left to the sound discretion of the court.</p> <p>2. Although an application for a reference'has once been denied, the matter is not res judicata so as to preclude the granting of a second motion therefor; and where after the first denial another judge is called in because of the alleged prejudice of the judge who then presided, it seems that the discretion of the court should be exercised in respect to the second motion by looking into the subject anew.</p> <p>3. Refusal of the trial court to exercise its judicial discretion where, by the law, such exercise is required, constitutes reversible error upon appeal by the aggrieved party, regardless of what the result of such exercise might have been.</p> <p>4. If a witness has no present recollection of a matter either independently or with reference to a memorandum made by him, or by another and found by him on a verification thereof to be correct, but is- possessed of a memorandum which he testifies he made and then knew that it was according to the facts, or was made by another and subsequently by him verified and found to be correct when he had knowledge of the facts, so that he is able by a present reference to the paper to testify to the truth of the matter by relation to his former knowledge, he may properly so testify, and the paper itself may properly be received in evidence, not as an independent evidentiary instrument, but as a part of the witness’s testimony.</p> <p>5. In passing upon the competency of a witness to testify, where his only source of knowledge is a memorandum of matters of which, even by a reference thereto, he has no present remembrance, if any of the essentials of competency are not clearly satisfied the witness should be held incompetent.</p> <p>6. In an action for services it was error to permit plaintiff to give evidence as to his remaining at a certain place hy order of defendant by letter, where the letter was not produced and no excuse was given for'its nonproduction.</p> <p>7. To deny a defendant his right (given hy sec. 4258, Stats. 1898) to a counterclaim upon a judgment in his favor, on the ground that he had an ample remedy to have it applied on any judgment which might be recovered against him in the action, was error.</p> <p>8. To charge the jury that if they believed any witness had wil-fully sworn'falsely they might disregard his entire testimony except in so far as it was “corroborated by the testimony of any other witness,” was error. The court should have said “corroborated by some credible evidence.”</p> <p>9. Where there is room for a reasonable conclusion that the jury, in returning a verdict contrary in one respect to the direction of the court, was innocently mistaken or had forgotten rather than wilfully disobeyed such direction, and the mistake was promptly corrected by the court, refusal to hold the verdict perverse was not error.</p> <p>10.Sec. 2894a, Stats. 1898, requiring the successful party to perfect the judgment within sixty days after verdict pr be deemed to waive his rights to costs, is fully satisfied if the judgment is once perfected during that period; and proceedings for a retaxation of costs after the sixty days, resulting in a change in the judgment by reducing or increasing the costs, are not affected by the section.</p>

C. SilveRti-ioRN, Circuit Judge. Appeal from order dated May 26, 1904, vacating temporary injunction entered by the judge ex parte upon the com-' plaint alone.

C. Silvebti-ioeN, Circuit Judge. Tbe cause of action, as stated in tbe complaint, is: “That on and between tbe 16tb day of April and the-30th day of' June, 1903, inclusive, tbe plaintiff rendered and performed work, labor, and services at defendant’s logging camp in Vilas county for a period of fifty-nine and three-fourths days, for which work, labor, and services tbe defendant promised and agreed to pay tbe plaintiff tbe sum of $35 per month; tbat tbe defendant is now…

C. SilveethoeN, Circuit Judge. This is an action for a balance alleged to be due for work and labor in a lumber camp.