Volume 124 — Wisconsin Reports

J. ViNjs, Circuit Judge. This action grows out of tbe same transaction as tbat between tbe same parties passed on by this court and decided February 2, 1904. 121 Wis. 462, 98 N. W. 239. Tbe two actions were, by stipulation, tried together upon tbe same evidence.

<p> Negligence: Sparks escaping from sawmill: Test of care required: Instructions to jury: Competency of witness as to value. </p> <p>1. In an action for damages for tlie destruction of property by fires alleged to have been set by sparks from defendant’s sawmill, there being no evidence as to what spark arresters were used by other mill operators, or even that there were any other mills in that locality, it was error to instruct the jury that it was defendant’s duty to use such reasonable means and appli- ' anees as were commonly and usually used by men engaged in the same or similar business in that locality in preventing fires from escaping from the smokestacks of their mills.</p> <p>2. Such instruction was inaccurate, also, because giving as a test of defendant’s negligence the use of such appliances as are “commonly and usually used by men engaged in the same or similar business,” whereas the true test is the use of such appliances as are ordinarily used by men of ordinary care and prudence, or by men generally, engaged in the same or similar business under the same or similar circumstances.</p> <p>3. In a purely tort action negligence of the defendant in the use of appliances in a dangerous business is not to be tested or measured by the usage of others in the same business in a given small locality.</p> <p>4. Where there was credible evidence tending to show that a fire set by sparks from defendant’s mill had been burning some time on his own premises to the knowledge of his employees, and had been negligently allowed to escape, it was error to charge that if defendant was not negligent in allowing sparks to escape from his smokestack he was not negligent in allowing the fire to escape from him after it was discovered.</p> <p>5. A witness who testified that he had worked on logs about fifteen winters and knew the value of certain logs was competent, prima facie, to testify as to that value, although he had never bought or sold logs himself.</p>

J. Vinje, Circuit Judge. Appellant sued out a writ of certiorari to obtain a review by the circuit court for Douglas county of the proceedings of the board of review of the city of Superior in such county, respecting the assessment of his property. By the petition for and the return to the writ these facts appeared: Appellant in 1903 owned 444 2-3 shares of the capital stock of the First Rational Bank of the city of Superior. He was a resident of the state of Hew York.

J. ViNJE, Circuit Judge. Plaintiff is a national banking association, located at tbe city of Superior. It owned a three-story brick building, tbe first floor of wbicb was occupied for its banking offices and tbe other portions rented. Its capital stock, at par, was $200,000.

J. ViNje, Circuit Judge. This is an action by the town of Spooner against Wash-burn county to recover oil account of collections on delinquent taxes returned by tbe town to tbe county. Tbe town filed its claim with tbe clerk of defendant, demanding payment of tbe amount due it from tbe county for collections of delinquent taxes in excess of tbe amount due tbereon to tbe county.

J. Vistje, Circuit Judge. This action, was brought March 22, 1900, against one Thomas Carmichael, to compel specific performance of a contract dated August 5, 1899, by which defendant agreed to convey certain lands in Chippewa county to plaintiffs for $4,125. The complaint, after alleging the terms of the contract, avers that plaintiffs tendered to defendant the contract price and demanded a deed, which defendant refused to execute.

J. ViNJE, Circuit Judge. This is an action at law, commenced March 31, 1903, to recover $1,327.64, with interest from September 20, 1899, alleged to be due from tbe defendant to tbe plaintiff on account of certain partnership logging transactions in which J. V. LeClair and Rogers & Ruger, as partners, were engaged, under written contracts between them, during 1897 and 1898.

J. Vinje, Circuit Judge. The plaintiff owns two forty-acre tracts of meadow land in Burnett county, bordering on the Clam river, a logging stream tributary to the St. Croix river. Defendant is a Minnesota corporation manufacturing lumber at Stillwater, Minnesota.

J. Vibtje, Circuit Judge. In response to a writ of certiorari to review a judgment of tbe municipal court of Douglas county, Wisconsin, tbe proceedings in regard thereto were returned to tbe circuit court for such county.

Smith, Judge. This action was brought to recover damages which plaintiff ■claims to have suffered by the negligence of defendant. The defendant is a corporation under the laws of Wisconsin, “organized for the purpose of carrying on a general logging, lumbering, and manufacturing business, buying and selling real estate and merchandise.” In connection with defendant’s business it operates a private railroad.

J. ViNje, Circuit Judge. The plaintiffs Buell, one Leland, and Bossman brought suit against the defendant for strict foreclosure of a land contract, dated October 1, 1902, for the purchase by defendant from plaintiffs of 3,492.40 acres of land in Douglas county. Pending the action William Prindle, as trustee in bankruptcy, was substituted as plaintiff in place of Leland.

F. DuNwiddie, Circuit Judge. Plaintiff, a farmer residing about five miles from Evansville, kept account in defendant bank. It tvas accustomed to-receive checks payable to his order upon the faith of his in-dorsement, and credit them to him as cash, and collect them without charge, and in ease of dishonor to charge the checks-back to him on his account.

E. Duwwiddie, Circuit Judge. This is an action to foreclose a mechanic’s lien for drilling a well. Tbe premises sought to be charged constituted tbe homestead of one James McDonald, and tbe appellant, Came M. McDonald, is bis wife.

E. Dustwiddie, Circuit Judge. Action to recover on a contract for installing a heating and ventilating plant in defendant’s school building.

E. DuNwidbie, Circuit Judge. The plaintiff is the widow and the defendants are the chi-1•dren of Wendolin Schneider, who died testate November 30, 1900, leaving, as tbe net result of the settlement of Ms estate, two parcels of real estate — one the homestead, of about $1,500 value, and the other a business lot, on which is a blacksmith shop, which rents for $14 per month, in value from $1,500 to $2,000. His will provided: “First.

E. Duitwiddie, Circuit Judge. This action was commenced in the municipal court for Rock county to recover on a promissory note executed by tbe defendant Frank Malone, and payable to tbe defendant A. Lorenze, wbo assigned it to plaintiff, F. H. Snyder, before its maturity. Tbe note bears date August 17, 1899, and was for tbe sum of $54.28, due ninety days from date. Tbe action was commenced by sendee of summons on defendants on November 24, 1899.

F. DuNwiddie, Circuit Judge. Tbis action was commenced against defendant, a railroad corporation, to recover for personal injuries alleged to bave been sustained by plaintiff.

EbeoR to review a judgment of tbe circuit court for Jackson county: James O’Neill, Circuit Judge. Tlie plaintiff in error, William Sonnenberg, was charged with being the father of the bastard child of Matilda Stems, born July 11, 1903. Issue being joined and trial had, the jury, at the close thereof, returned a verdict finding the defendant guilty.

<p>Eebok to review a judgment of tbe municipal court of Milwaukee county: A. C. Brazee, Judge.</p>

<p> Criminal law and practice: Assault with intent to hill: Self-defense: Evidence: Instructions to jury. </p> <p>1. Upon tlie evidence in this case (sufficiently stated in the opinion) it is held that the jury were warranted in finding that the shooting of a person by defendant was with intent to murder, and not in lawful self-defense.</p> <p>2. On a trial for assault with intent to murder, there being evidence that defendant harbored ill will not only against the person assaulted but also against the other employees of the same establishment, evidence of threats made by defendant against any of them, even as long as nine months before the assault, was admissible to show his purpose in visiting such establishment, armed with a revolver, at the time of the assault.</p> <p>3. The jury were charged that, in order to convict, they must find, first, that defendant assaulted the person named, second, that defendant was armed with a dangerous weapon, and, third, that the assault was made with intent to murder said person; but were told that as to the first and second elements of the crime there was no dispute, defendant having admitted that he shot said person with a revolver. Held, that this could not have misled the jury to understand that a criminal assault was admitted or undisputed, especially as they were afterwards carefully instructed on the subject of unlawful assault as something distinct from the assault as to which there was no dispute.</p> <p>4. Although the court hg,d not yet instructed the jury on the subject of justification for the shooting, an instruction that if they found defendant guilty “under the instructions so far given” they should return a verdict accordingly, was not error, where the jury had just been told that they should find defendant guilty unless they found the shooting “was justifiable under the rules which will hereafter be given to you by the court,” and proper instructions were thereafter given on that subject.</p> <p>5. It was not error for the court to state to the jury that the prosecution “claims there is some evidence tending to prove” certain facts, and to instruct the jury in respect thereto, where there was in fact a basis in the evidence for such claim.</p> <p>6. The mere occurrence of a previous affray in which defendant had been ejected from a building did not justify his shooting of one of his assailants after he was entirely free from them.</p> <p>7. An instruction that the taking of human life “cannot be justified on some slight appearance of danger. Nothing short of actual pressing necessity to the apprehension of the defendant will justify the taking of human life in self-defense,” was faulty in that it was not qualified to the effect that one may kill his assailant if he believes and has reasonable ground to believe that he is in imminent danger of receiving some great pex-sonal injury at the hand of such assailant.</p> <p>3. The omission, however, to explain to the jury what constitutes a “pressing necessity” was not error, in the absence of any request by defendant for such explanation; and the omission of the requirement of a reasonable ground for belief in such necessity, was favorable to defendant and therefore not an error which should work reversal.</p>

<p>Aeeeal from a judgment of the circuit court for Milwaukee county: Warren D. Tarrant, Circuit Judge.</p> <p>This is an action to recover damages for injury to plaintiff’s property, resulting from the acts of the city of Milwaukee in grading Hadley street, a public street of tbe city. Tbe premises in question are described as tbe east 112.50 feet of lot 6 and lot 7 in block 8 in Wechselberg & Elliott’s Subdivision of Lots C and D in tbe Thirteenth Ward of tbe city of Milwaukee, except the north 5.80 feet thereof, which part borders on tbe south limits or line of Hadley street, and lies between this street and plaintiff’s premises. Tbe premises front on Island avenue, a public street of the city, which intersects Hadley street at right angles, runs north and south, and lies to the east of plaintiff’s property. Plaintiff became owner of the premises in 1895, and has owned them ever since.</p> <p>The city graded Hadley street in 1894 and 1895, and it is claimed that such grading was unlawfully done and without authority of law. The grading is alleged to have injured plaintiff’s property through the unlawful digging up, excavating, removing, and carrying away of the earth from this street to a depth of from eight to twenty feet in parts of the street adjacent to these premises, and it is alleged that this grading, excavating, and removing of the earth from the street removed the natural banks and lateral support of lot 6, and caused the 5.80 feet strip and a large portion of plaintiff’s part of lot 6, above described, to subside and slide into the excavated street, to plaintiff’s injury and damage. The grading causing this result is alleged to have been negligently and carelessly done by the city, through its authorized officers and agents. The grading and excavating was done to change the natural surface of the street and bring it to the grade which had been established by the city council. It did not involve the change of any former grade in the street. It appears that the work was done under a proceeding by the city to improve Hadley street, pursuant to the authority vested by charter in the city for the improvement of streets, and to charge the cost of such improvement upon the abutting real estate.</p> <p>The action was tried before the court. No bill of exceptions is certified to this court. It appears from the record before us that at the conclusion of the testimony the court decided that the attempted proceeding by the city for the improvement of this street at the expense of the abutting owners was defective and void, but that it was not a defect going to a want of authority to make the improvement and charge plaintiff’s premises for a proportionate share of the cost, and that the defect in proceeding was curable under the provision of a reassessment law. Thereupon the court ordered that the city proceed to make such reassessment under the law which authorizes reassessments of benefits and damages in cases of such attempted street improvements, and stayed all further proceedings until otherwise ordered.</p> <p>The fact that plaintiff’s premises do not abut on Hadley street is not controverted. The court entered an interlocutory judgment, upon findings as above indicated, staying all proceedings, and allowing the city the right of reassessment of benefits and damages under the proceeding instituted for the ■ improvement of the streets. This is an appeal from such judgment. The decision on the motion for a new trial was held in abeyance by the court, as not necessarily to be determined at this stage of the action.</p>

<p><1) Actions: Consolidation: Order of trial. (2-7) Municipal corporations: Special assessments for street improvements: Validity: Reassessment: Right of abutting owner to damages: Milwaukee city charter.</p> <p>1. Refusal to consolidate an action against a city to recover for injury to plaintiffs lot by tbe cutting down of the street in front thereof with an action against the city, its treasurer, and the contractor, to set aside a special assessment certificate issued for such work ,to said contractor, and for other relief, is held not to have been error; nor was it error to direct the trial of the action at law first, immediately followed by that of the suit in equity, the court having control of both cases at the same time.</p> <p>2. An assessment by the board of public works of the benefits and damages to abutting lots by reason of the grading of a street in Milwaukee was made without separate consideration. of the several lots, although they were very differently affected by the improvement; it was not made at the time of viewing the premises, hut at a different time and in the office of the board; and it assessed a uniform sum per front foot as benefits along the whole street, and awarded no damages whatever for injuries. Held, that under the city charter such assessment was void.</p> <p>3. By sec. 1210e, Stats. 1898, as amended by ch. 354, Laws of 1903, a reassessment is provided for in every case where a special assessment for street improvement is held invalid by reason of defects in the assessment of benefits and damages, whether such invalidity be determined in an action at law or one in equity.</p> <p>4. The amendment to sec. 1210e, Stats. 1898, by ch. 354, Laws of 1903, whereby a reassessment was provided for in legal as well as in equitable actions, was applicable to actions thereafter commenced, although the assessments complained of were made prior to its enactment.</p> <p>5. Although an abutting lotowner has no right, either by statute or at common law, to recover for damage to his land resulting from the original grading of the street done lawfully and regularly, yet where the city fails to proceed in the manner prescribed by law it becomes liable for the damage proximately caused to such owner by the improvement.</p> <p>6. The right of the lotowner in such a case to recover for the damage to his land could not be taken away by a subsequent amendment (ch. 354, Laws of 1903) of the statute relating to reassessment of benefits and damages; but no constitutional right of the lotowner is invaded by the provision, in such subsequent statute, for a reassessment of the amount of benefits which he ought to pay to the city, and a reassessment so provided for should be ordered in his action to recover for the damage, upon the original assessment being held invalid.</p> <p>7. If, in such a case, relating to land in the city of Milwaukee, the benefits as ascertained by such reassessment are less than the legal damages to which the lotowner is entitled, the difference is to be paid to him out of the proper ward fund.</p>

J. Eeuit, Circuit Judge. It appears tbat tbe plaintiffs husband, James B. Canterbury, died February 14, 1901. Tbis action is brought by tbe widow upon three policies of insurance, each constituting tbe basis of a separate cause of action.

<p>Appeal from a judgment of the circuit court for Sauk 'county: E. Ray Stevens, Circuit Judge.</p> <p>The decision upon a former appeal in this action is reported in 117 Wis. 242.</p>

Ray SteveNS, Circuit Judge. Tbis is an appeal from an order sustaining a demurrer to a complaint alleging, in effect, that tbe Madison Company therein mentioned [tbe Northwestern National Life Insurance Company of Madison, Dane County, Wisconsin] was-incorporated under tbe laws of this state in 1882; that February 22, 1883, tbe plaintiff’s husband, Noel N. Merrick,, became a member of that company and procured from that 'company insurance on bis life, for $4,000, -which was…

Dice, Circuit Judge. On March 10, 1891, Agnes M. Scanlan, in consideration of a loan of $1,500 either to herself or to her husband, executed her note for that amount, payable 'at Chicago', Illinois, three months after date, and, as security, deeded to the lender, Andrew S. Work, lands in Dodge county, Wisconsin, and received from Work a written defeasance, agreeing to reconvey upon payment' of the debt. Work transferred the note to one J. IT.

Dick, Circuit Judge. Tbe plaintiff brought this action on a note given by the principal defendant, Heinrich Helmke, and recovered judgment thereon, and instituted this garnishment action to aid in the collection of the amount due on such judgment on the 2d day of January, 1902.

Dice:, Circuit Judge., At tbe times mentioned in tbe complaint defendant was a municipal corporation organized and existing under tbe general city charter law of tbe state of Wisconsin, and plaintiff was tbe owner of tbe south fifty-three feet of lot 6, block 6, Cutler’s addition to tbo city of Waufcesha. In May, 1900, tbe common council of defendant by resolution duly authorized tbe grading and paving of West avenue in said city, upon which avenue plaintiff’s lot abuts.

Dick, Circuit Judge. 'This is an action to recover damages for personal injuries sustained by the plaintiff by reason of having stumbled over a truck belonging to the defendant, and alleged to have been negligently and wrongfully left upon the public sidewalk in front of the defendant’s depot platform on the evening of December 23,-1902.

<p>Appeal from a judgment of the circuit court for Wauke-sha county: James J. Dice, Circuit Judge.</p> <p>This is an action for personal injuries received by the plaintiff while walking on a highway in the defendant town April 16, 1901, at about balf past 8 o’clock p. m. Tbe facts were not in dispute. Tbe highway in question runs east and west, and is a well-traveled country road, fifty feet in width. There is a smooth, graveled roadway in the center, fifteen feet ór more in width. A culvert, made of a round drain tile, two feet in diameter, and laid at a depth of three and one balf feet below the surface, crossed the traveled roadway nearly at right angles, for the purpose of draining surface water from the higher lands south of the highway to lower lands upon the north. The pipe in question was about twenty feet long, and emptied into an open ditch at the north end, which ditch extended northward across the remainder of tire highway. There was no railing at the north end of the culvert nor at the sides of the ditch. The plaintiff lived about 300 feet west of the culvert, on the no'rth side of the road, and was well acquainted with the highway and the culvert. About 400 feet east of the culvert, on the north side of the road, was the store of -one Ingersoll. There was no prepared footway on either side of the highway, but there was a narrow footpath made by pedestrians on the north side, running from the Ingersoll store to a point about eight feet east of the culvert, at which place it curved to the south and came up to the traveled road, into which it merged. The plaintiff testified that the evening in question was very dark; that he left the Inger-soll store, and was going home, and walked along this footpath ; that he did not notice the turn in the path, and walked on and fell into the ditch just about a foot north of the culvert, and fractured the kneecap of his left leg.</p> <p>The jury rendered the following special verdict:</p> <p>“(1) Was the plaintiff injured as claimed at the place alleged in the complaint? A. Yes., (2) Was the highway in question, at the time and place of the plaintiff’s said injury, in such condition that an injury to an ordinarily prudent traveler thereon would be the natural and probable result? A. Yes. (3) If you answer the second question ‘Yes,’ then ought such condition of the highway in question reasonably to bave been foreseen and anticipated by reasonably prudent officers of tbe defendant town in tbe discharge of their duties as such officers ? A. Yes. (4) Did tbe want of ordinary care on the part of tbe plaintiff contribute to produce tbe injury be received? A. No. (5) What sum will compensate tbe plaintiff for bis said injury; that is, In what sum do you assess bis damages for medical and surgical attention and services, medicine; care and nursing rendered him, which was sustained by reason of said injury? A. $200. In what sum of money do you assess tbe damages of the plaintiff for tbe earnings which be failed to earn on account of tbe said injury? A. $500. In what sum do you assess tbe plaintiff’s damage for tbe bodily and mental pain, suffering, and disability which be has sustained, resulting from tbe said injury? A. $800. In what sum do you assess tbe plaintiff’s damages for tbe bodily and mental pain, suffering, and disability which will result, and which tbe plaintiff sustained, from said injury? A. $400. In all, at what sum do you assess tbe plaintiff’s damages? A. $1,900.”</p> <p>Tbe plaintiff moved for judgment upon the verdict, and tbe defendant moved for judgment non obstante, and also moved to change tbe answers of tbe special verdict. Tbe court changed tbe answers to tbe second and third questions from “Yes” to “No,” and tbe answer to tbe fourth question from “No” to “Yes,” and also changed tbe finding as to damages so that tbe total damages were fixed at $951.25, and entered judgment for tbe defendant, from which tbe plaintiff appeals.</p> <p>They argued, among other things, that if tbe usual traveled way of a highway is reasonably open and in safe condition, and tbe traveler is injured because be changes to, or deems it more judicious to take, a side path, which proves unsafe, be cannot recover. Burr v. Plymouth, 48 Conn. 460, 472; Ozier v. Hinesburgh, 44 Vt. 220; Massey v. Columbus, 75 Ga. 658; Zettler v. Atlanta, 66 Ga. 195; Bylees v. Pawlet, 43 Yt. 446; O’Laughlin v. Dubuque, 42 Iowa, 539; Alline v. Le Mars, 71 Io.wa, 654; Harwood v. Oalcham, 152 Mass. 421. If one, for bis own ■convenience and without necessity, drives outside of the limits of a highway, and is injured there by reason of an excavation, he cannot recover against the municipality as for a defect in the highway. Biggs v. Huntington, 32 W. Va. 55; Fitzgerald v. Berlin, 64 Wis. 203.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: James J. Dick, Circuit Judge.</p> <p>Action to recover on implied contract. The complaint is to the effect that from the 17th day of July, 1899, to September 24, 1900, plaintiff rendered services to the defendant at the latter’s request as a servant on his farm, of the reasonable value of $22 per month, or $308 in the whole, which became due and payable September 24, 1900, and that no part thereof has been paid, though payment thereof has been demanded. Defendant answered putting all the allegations of the ■complaint in issue, and pleading that about July, 1899, defendant and plaintiff’s father and mother made an agreement, the plaintiff being under the age of twenty-on'e years, to the effect that defendant should receive plaintiff as a member of his household, furnish him with board, lodging and washing, and afford him the advantages of defendant’s professional library, he being a physician and surgeon, direct him in his reading and give him instruction preparatory to his entering a medical college and becoming a physician and surgeon, and plaintiff in consideration therefor while at defendant’s home should make himself generally useful and perform such work and render such services for defendant as his time and convenience would permit; that the alleged services were performed under such agreement, and that all of the terms thereof were fully complied with by the defendant.</p> <p>Upon the trial it was claimed on behalf of the plaintiff that he was emancipated by his parents before going to live with defendant, and before the arrangement with the latter was made. It was further claimed on the part of the plaintiff that he resided with and worked for defendant during the period mentioned in the complaint, under an agreement made between the latter and plaintiff’s father that plaintiff should receive pay for his services. The jury found in favor of the defendant, and judgment was rendered accordingly. There was evidence tending to prove the respective contentions of the parties. Various rulings were made by the trial court to which exceptions were duly preserved for the purposes of appeal by the plaintiff.</p>

Dice, Circuit Judge. Tbe appeal is from an order appointing a referee under tbe provisions of sec. 3, cb. 300, Laws of 1899. Respondent moves to dismiss because of asserted nonappealability of tbe order.

<p>Appeal from a judgment of the circuit court for Ashland' county: JohN K. Paeish, Circuit Judge.</p> <p>This action was brought in 1903 to foreclose a tax certificate bearing date May 15, 1894, based upon a special assessment for paving, charged against lot 1, block 85, Ellis division, city of Ashland, less right of way. The complaint is in the usual form for foreclosure of tax certificate, and alleges that more than one year has expired since the date of the certificate, and that no action or proceeding to set aside the sale of such lands, or to cancel said certificate, or to restrain the issuing of any tax certificate or tax deed on such sale, has been commenced, and that the defendants are barred from setting up the illegality of said certificate.</p> <p>The defendants answered that the tax certificate was null and void for the reason that the special tax carried out by the city clerk of the city of Ashland in 1893 as a paving tax was void because no grade had been established and no pavement ordered and no preliminary steps necessary to the paving of said street taken; and that the Wisconsin Central Railway Company owned a part of said lot, but the whole tax was charged against defendants. Substantially the same facts were set up by way of counterclaim, with prayer that the tax certificate and tax be declared void and canceled. Plaintiff replied to the counterclaim, denying the material allegations, thereof.</p> <p>Tbe action was tried by tbe court, and judgment rendered for tbe defendants on tbe counterclaim, canceling and setting' aside tbe tax and tax certificate, from wbicb judgment plaintiff appeals to this court, and assigns as error (1) tbe admission of evidence under tbe counterclaim, and (2) tbe entering of judgment canceling and setting aside tax and tax certificate without requiring defendants to pay tbe plaintiff tbe amount for wbicb tbe property was sold, with interest.</p>

<p>Appeals from a judgment of the circuit court for Ashland county: JohN K. Pabish, Circuit Judge.</p> <p>The plaintiff sued'out of said court a writ of certiorari to review tbe proceedings of the board of review of the city of Ashland respecting its property there assessed for taxation in 1903. The petition was to this effect: In May, 1903, the assessor of the city of Ashland, in Ashland county, Wisconsin, assessed for taxation 5,000,000 feet of logs belonging to the petitioner, valuing the same at $10 per Ml Such logs were, subsequent to the 1st day of May, 1903, removed from the town of Sanborn in said county to Mowatt’s mill in said city of Ashland. Prior thereto and ever thereafter petitioner’s principal place of business was in said town, where it owned and operated a sawmill. Seasonably after such assessment the petitioner, before the board of review, protested against the same because the logs were assessable in the town of San-born instead of tbe city of Ashland, and 2,000,000 feet thereof were hemlock, worth not to exceed $5 per M. feet. In support thereof L. K. Baker, on behalf of the petitioner, testified to the character and value of the logs as stated; that no contract existed on the 1st day of May, 1903, for sawing the logs; that they were not in the city of Ashland on such day. The board denied the petitioner’s application to reduce the assessment or strike the same from the assessment roll.</p> <p>The return to the writ was to the effect that the logs were assessed to the petitioner; that he seasonably protested against the same, and that the board refused to change the assessment, basing its decision upon evidence returned which, so far as necessary to indicate whether the board committed jurisdictional error or not, is substantially as follows:</p> <p>Mr. Balter's evidence: — May 1, 1903, the logs in question were in the town of Sanborn, mainly on the banks of Lake Superior. We had no arrangement about sawing them on that day. I cannot say that I knew on that day where they were going to be sawed. They were brought into the city of Ashland about the 5th day of May, 1903. 2,000,000 feet thereof were hemlock, not worth to exceed $5 per M. feet. I can’t say just how much they were worth. The logs were reservation logs and had to be sawed on the reservation unless the government permitted us to saw them elsewhere. We had a mill in the town of Sanborn on the reservation where we had our headquarters. I did not know on the 1st day of May that the logs would not be manufactured there. It was much more convenient to manufacture them elsewhere, but it was not impossible to move them to the Sanborn mill. I cannot say that it was, on the 1st day of May mentioned, not deemed probable that the manufacture would occur at said mill. There was no practicable way of moving the logs to a place for manufacturing the same, other than by rafting them. We could have taken them in rafts to the Sanborn mill. I did not know but what we would have to. I can’t say whether we got permission to manufacture the logs in Ashland by May 5, 1903. I can’t tell positively.</p> <p>The matter was heard on the return, resulting in a decision that the assessment of the logs at $50,000 was contrary to the evidence, and that the valuation was excessive to the extent of $10,000. Thereupon judgment was rendered affirming the assessment at $40,000, and otherwise reversing it. Therefrom both sides appeal.</p>

<p>Appeal from a judgment of the circuit court for Bayfield county:.Johbt K. Rakish, Circuit Judge.</p> <p>Plaintiff’s decedent for many years had been one of several owners in a so-called mining option, being an option or privilege to prospect on certain land and to receive a lease of mining privileges upon certain conditions. That option had been held under various names, but 'for some years prior to the death of said decedent was held by one Pike, said decedent’s interest therein being about one sixteenth, or, as it was expressed, 2,550 shares out of a total of 40,000. The associates bad acted as if incorporated for many years, and tbe expenses of tbe prospecting bad been paid by tbem, on call, proportionately to tbeir respective shares. Tbe enterprise bad received several designations, but latterly tbat of tbe “Pike Option.” At one time a corporation bad been organized, in wbicb no stock was formally issued, but tbe associates were understood to bold shares in tbe same proportion as above stated. Decedent’s investment at tbe time of bis death bad reached some $5,000 or $6,000, wbicb was inventoried as an asset. Shortly after bis1 death articles of association were filed under tbe name of tbe Pike Minmg Company, and some of tbe associates formally signed subscription for tbeir proportionate shares of stock, but no certificates were issued to tbem. Tbe lease held by Pike was surrendered, and a new lease taken out in tbe name of tbe Pike Mmmg Company as full payment for its total stock. After such incorporation, calls were made from time to time on tbe various associates for paying tbe expenses of further prospecting, working, and development. Plaintiff, as administrator, received notices of such demands from those who bad acted previously under tbe designation of “Secretary” and “Treasurer” of tbe associates, and who were elected secretary and treasurer of tbe new corporation. He voluntarily paid such assessments, or calls, up to tbe amount of $3,232, wbicb was expended, together with tbe contributions of tbe other associates, in developing tbe property. After paying these amounts be learned tbat such certificates of stock in tbe new corporation as bad been issued declared tbe stock fully paid and nonassessable, and, further, be conceived a doubt as to whether be bad any right, as administrator, to pay out tbe moneys of tbe estate for this purpose. He therefore brought suit against tbe Pike Mining Company, the corporation, and Charles Latimer, its treasurer, who bad personally received bis checks as administrator and deposited tbem to tbe credit of tbe corporation, alleging tbat he bad been induced to make said payments by reason of tbe false and fraudulent representation made by defendants to Mm that Ms decedent was the owner of 2,550 shares of the capital stock of said corporation and that the estate was indebted to said company for the assessments made, and that the defendants received said money and wrongfully and unlawfully converted the same to their own use, well knowing that they had no right to receive, retain, or use the same, and that they had refused to repay on demand; therefore he prayed judgment for the amount so paid.</p> <p>At the opening of the trial, being put to an election as to whether he stood on allegations of tort or contract, he elected tort, and the case was tried on that theory. At the close of the plaintiff’s case, wherein substantially the foregoing facts were proved, the court granted the defendants’ motion for nonsuit and entered judgment accordingly, from which plaintiff appeals.</p>

<p> Contracts: Specific performance: Statute of frauds: Oral agreement for sale of lands: Part performance. </p> <p>1. The plaintiff corporation having an option to purchase certain lands, an oral agreement was made between it and defendants’ agent that defendants would purchase the lands from the owner and, after removing the timber, convey them to plaintiff for a certain price stated ih plaintiff’s written offer, which, with the oral agreement, was to be submitted to one of the defendants personally for acceptance. The.written offer was retained by said defendant but never accepted in writing. Acting upon the oral agreement with the agent, plaintiff relinquished its option to purchase the lands. Plaintiff knew that the agent had no authority to purchase lands for defendants as contemplated by that agreement. . The lands were then purchased by defendants, who afterwards refused to convey to plaintiff. Held, that there was no completed contract between the parties of which specific performance could be enforced.</p> <p>'2. Plaintiff’s relinquishment of its rights under the option to purchase, before the proposed oral agreement had been accepted, was not an act of part performance under and in pursuance of an agreement with defendants so as to constitute a basis for enforcing specific performance.</p> <p>‘3. There being facts from which the inference is legitimate that plaintiff may have relinquished its option because it did not intend to purchase the lands upon the terms thereof, such re-linquislnnent cannot be held clearly and exclusively referable' to, and done in pursuance of, tbe oral agreement, so as to warrant tbe enforcement of specific performance-.</p>

<p> Feeds:. Conditions subseqitent: Conveyance by parent to child: Covenant: Breach: Equity: Reformation. </p> <p>1. Conditions subsequent, especially when relied upon to work a forfeiture, must be created by express terms or clear implication, and are strictly construed.</p> <p>2 In consideration, among other things, of natural affection and to avoid the expense of a will, a father conveyed land to his daughter, reserving a life estate with right of possession, and the daughter covenanted to pay all taxes. Upon her failure to pay taxes the land was sold therefor, and the father, to protect himself, purchased the tax certificates. Held, that the agreement to pay taxes would not he considered a condition subsequent for breach of which the father could re-enter and have the conveyance rescinded.</p> <p>3. The daughter having offered to pay all the taxes with interest, before bringing an action to reform the conveyance as to a mistake in the description of the land, came into court ifi such action with clean hands, and the conveyance, not being a voluntary one but supported by a valuable consideration, might be reformed.</p>

PaRise, Circuit Judge. Tbe complaint in tbis action alleged, in substance, tbe following facts: In 1890 tbe plaintiff town entered into a contract witb tbe Hurley Water Company by wbicb it agreed to pay tbe water company $4,000 a year for hydrant rentals ■and water service for a period of years.

Action to quiet title to real estate. Plaintiff’s title was based on a tax deed. The case turned on whether such deed was void upon its face. The decision was favorable to the defendant and judgment was rendered in its favor.

Pabish, Circuit Judge. Action for injury, necessitating the killing of plaintiff’s-horse, resulting from a defective condition of the freight car-in which such horse was shipped. The shipping receipt contained stipulation that: “The said shipper hereby accepts for transportation and acknowledges and admits the cars furnished by the railroad company to be sufficient and suitable cars in every respect for the shipment of said stock. . . .

<p>Appeal from a judgment of the circuit court for Ashland •county: John K. Paeish, Circuit Judge.</p> <p>The defendant, a corporation, was engaged in a general loan business, and had obtained by assignment a mortgage upon certain property, described in the instrument as follows:</p> <p>“A complete sawmill, consisting of one Brumard engine, •carriage, rotary and husks, live rolls and edger, carriage and •chains, one boiler, smokestack, together with all the equipments and everything appertaining thereto or in any way connected therewith . . . which said property ... is now free ,and clear'from any'prior lien or incumbrance.”</p> <p>This mortgage was executed on October 28, 1901. On March 1, 1902, Raarup Bros, leased to the mortgagor a bull •chain, with shafting and belting, used for hauling logs out of "the water up to the saw. About the 1st of February, 1904, Mr. John F. Dufur, president, treasurer, and general manager of the defendant company, entered into negotiations with the plaintiff for the sale of the mill property. Plaintiff, at the request of Dufur, examined the mill property, and found the bull chain on the mill premises set up for use in connection with the property covered by the chattel mortgage. On February 16, 1904, Dufur executed a bill of sale, and left it with one Tounker to be delivered to the plaintiff on payment •of $250, the agreed price. Plaintiff, some weeks afterward, paid the purchase price and received the bill of sale, which contains the following description of the property:</p> <p>“A complete sawmill, consisting of one Brumard engine, carriage, rotary, husks, live rolls and edger, carriage chains,, etc., one boiler, smokestack, together with all equipments and' everything pertaining thereto or in any way connected therewith.”</p> <p>The bill of sale also contains the following:</p> <p>“This sale is by virtue of a certain chattel mortgage, a copy of which is hereto annexed, and said sale is made in accordance with said mortgage, which . . . and covers the property which is sold or evidenced by this bill of sale.”</p> <p>Plaintiff had gone into possession of the property before he had obtained the bill of sale. Two days after receiving the bill of sale plaintiff was informed by one of the Raarup brothers of their ownership of the bull chain and the belting and shafting connecting it with the engine, and he paid them $125 for title to the property which vyas covered by their lease.</p> <p>This action is brought under the bill of sale to recover the money so paid by plaintiff, and is founded on a breach of the warranty of title to the bull chain and the belting and shafting connecting it with the engine. The action was commenced in the municipal court for Ashland county, and resulted in a judgment for plaintiff. On the trial de novo in the circuit court, to which defendant appealed, plaintiff attempted to introduce evidence to the effect that the bull chain and attachments were included in the purchase and were covered by the description in the bill of sale, but the court rejected such evidence and held that no parol proof could be received to explain the terms of the bill of sale. At thé conclusion of plaintiff’s evidence, on defendant’s motion, plaintiff was nonsuited and a judgment dismissing the action and for costs was entered in favor of defendant. This is an appeal from such judgment.</p>

<p> Mortgages: Application of rents payable to mortgagee: Accounting. </p> <p>1. By the terms of a lease of mortgaged premises the rents were to he paid to one of the mortgagees and by him applied on taxes, insurance, and the mortgage debt. After a year the rent was reduced, with the consent of the mortgagor. Held, that the mortgagees were not chargeable with the difference between the original and the reduced rental.</p> <p>2. Out of the rents collected said mortgagee paid back insurance, back taxes, and bills for repairs. The mortgage provided that the property should be kept insured by the mortgagor. Said payments were made with the consent of the mortgagor for the purpose of preserving and keeping up the property and securing an income therefrom. Held, that the sums so paid should not be charged against the mortgagees.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: John K. Parish, Circuit Judge.</p> <p>Action to recover on contract. The answer was a general denial. The only issue litigated upon the trial was whether the contract was made by the defendant as agent for the Iron River Boom & Improvement Company under such circumstances as to preclude plaintiff from successfully charging him as the principal. It was shown that he did.in fact act as agent, though he used language appropriate to a personal contract and did not at any time expressly disclose his agency. There was evidence establishing, or tending to establish, circumstances wbicb it was claimed, on tbe part of tbe defendant, so strongly suggested to tbe plaintiff at tbe inception of tbe contract tbe facts of tbe matter as to charge bim with knowledge thereof. Tbe court directed tbe jury to return a verdict for tbe plaintiff, which was done and judgment rendered accordingly, from wbicb defendant appealed.</p>

<p>Appeals from a judgment of tbe circuit court for Sawyer county: JohN 3L Paeisi-i, Circuit Judge.</p> <p>This is an action by the plaintiff, as administratrix of the estate of Ben Williams, deceased, for damages sustained by her as widow of said Ben Williams on account of his death, which is claimed to have been caused by the negligence of the defendants on September 1, 1902. The evidence showed, without substantial dispute, the following facts:</p> <p>At the time of the accident, and for some time prior thereto, the defendant lumber company owned and operated a sawmill at the village of Hayward, and also an electric light plant, with which it lighted its factory and the streets and residences of said village; and the defendant Rogers was the. superintendent of its lumber business as well as the electric light business. For a .number of years the deceased, Ben Williams, operated a dynamo at the electric light plant at night, and made repairs upon the plant and wires during the forenoon, and took a rest in the afternoon. One Fox was engineer of the engine at the planing mill, and assisted in making repairs on the dynamo from time to time. Three days before the death of Williams the armature of the dynamo was burned out, and taken to Minneapolis by Rogers to be repaired, and during his absence the street lights were not in operation. Rogers returned with the armature on Saturday night, but it was not put in position until Monday, which was the day of the injury. On that day defendant Rogers sent a boy to the residence of Williams to ask him to come to the dynamo room and assist in repairs. The boy, however, returned with the information that Williams was not at home, having taken his daughter out into the country to a school which she was teaching, and that he would not return till after dinner. Thereupon Rogers set Eos to work putting in the armature, and at about 1 o’clock Fox had completed the adjustment of the armature, and Rogers came to the dynamo room at this time and gave Fox assistance in completing the work, and then instructed him to turn on the steam and start the engine, to see if it worked satisfactorily. Fox turned on the power, but for some reason it did not operate satisfactorily, and Rogers thereupon pressed the brushes (which are a part of the dynamo) with his hands, and again ordered the power turned on, which was done by Fox, and a good current was produced, and after running a few moments the power was shut off.</p> <p>It further appears that Williams had driven into the country about half past I o’clock that morning with his daughter, and that he arrived home shortly before noon; that during his absence some men who were moving a bpilding through the street sent word to Williams’s residence requesting him to cut .one of the electric light wires which was in the way of the moving building; that Adolph Williams, son of the deceased, who had worked for some months as assistant to his father, volunteered to cut the wire and did so; that when deceased arrived home his son informed him of the cutting of the wire, and deceased then proceeded to the> place for the purpose of splicing the same, and without informing Rogers of his intention he climbed the pole, and was attempting to splice the ends of the wire at the very time when the test current was turned on by Rogers, and in some manner the deceased came in contact with both the negative and positive wires, thereby producing a short circuit and causing his death; that it was the practice of Rogers during all the time while deceased acted as electrician that the current should not be turned into the wires by any person other than the deceased, or, if done by any one else, that the deceased should first be notified; that deceased did not know that the armature had returned when he was attempting to splice the wires, and that neither Rogers nor Eox knew that tbe wire bad been cut or tbat tbe' deceased bad returned from bis errand in tbe country.</p> <p>Both defendants moved for direction of a verdict, wbicb motions were overruled. Tbe court charged tbe jury, at tbe= request of tbe defendants, as follow's:</p> <p>“(1) You are instructed tbat in repairing tbe dynamo and testing it both Rogers and Eox were fellow-servants of Ben Williams, and tbat be, tbe said Williams, assumed the risk, of any injury wbicb might be caused by their negligence in making such repairs and test.</p> <p>“(2) You are instructed tbat you cannot find tbe defendant North Wisconsin Lumber Company negligent in this action on account of any failure on its part to furnish reasonably safe tools, implements, and appliances with wbicb Ben Williams was required to work.</p> <p>• “(3) You are instructed tbat you cannot find defendant lumber company negligent because of any incompetency of either Eox or Rogers.</p> <p>“(4) You are instructed tbat to make the defendant lumber company liable in this action tbe plaintiff must satisfy you by a fair preponderance of tbe evidence tbat tbe lumber company failed in one or more of tbe following duties: (1) Tbat it failed to furnish him a reasonably safe place in which to do bis work; (2) tbat it failed to provide him with reasonably safe and proper tools, implements, and apparatus; (3) tbat it failed to provide reasonably competent and careful co-employees to work with him. These are the three duties the-master owes to bis servant, and before tbe plaintiff can recover she must satisfy you tbat tbe defendant lumber company-failed in some one or more of these three respects.</p> <p>“(5) You are instructed tbat there is no evidence in this case tending to show tbat the defendant lumber company did' not provide reasonably safe and suitable tools and apparatus and reasonably careful and competent employees.</p> <p>“(6) You are instructed tbat in performing tbe act of directing Eox to'turn on tbe current to test tbe armature Rogers-was acting as a fellow-servant of deceased, and tbe defendant lumber company is not liable for such direction, even though you believe it was negligently given.</p> <p>“(7) If you find deceased was guilty of any want of ordi-naiy care, however slight, which contributed directly to his death, the plaintiff cannot recover.</p> <p>“(8) You are instructed that the duty to warn deceased that the current was about to be turned on did not exist unless you are satisfied from the evidence that the defendant lumber company or Rogers knew, or ought to have known, that the deceased was or might probably be engaged in repairing the wires.</p> <p>“(9) You are instructed that you cannot find for the plaintiff and against either defendant unless you are satisfied to a reasonable certainty by a fair preponderance of the evidence that one or both of the defendants was guilty of some negligent act or omission which was the proximate cause of Ben Williams’s death.</p> <p>“(10) You are instructed that you cannot find that the negligent acts or omissions of the defendants, or either of them, were the proximate cause of deceased’s death, unless you are satisfied that the injury to deceased was the natural and probable result of such act or omission, and unless you further find that an ordinarily prudent person in the light of the attending circumstances would have anticipated that injury might probably occur by reason of such act or omission.</p> <p>“(11) You are instructed that you cannot find defendant lumber company liable to plaintiff simply because Rogers neglected to inform deceased that he (Rogers) was about to Rave the current turned on.</p> <p>“(12) You are instructed that you cannot find defendant lumber company liable simply because Rogers directed the ■current to be turned on at the time he did.</p> <p>“(13) You are instructed that deceased, by his contract of ■employment, assumed all risk of injury by reason of the negligent manner in which his co-employees might carry on the work of their common master.</p> <p>“(14) You are instructed that the fact that the insulation •of the wires was defective was not the proximate cause of deceased’s death.”</p> <p>The court further charged, of its own motion, as follows:</p> <p>“Now, gentlemen, it is for you to say, under the whole evidence in this case, whether these defendants, or either of them, were guilty of such an act of negligence as they should he compelled to respond in damages for this accident. I have given yon certain propositions of law which it is your duty to adhere to and follow in arriving at a verdict. The claim of the plaintiff is that, owing to a lack on the part of defendants, and especially owing to a lack on the part of defendant’s general manager, Rogers, in failing to give the deceased, Williams, notice before the current of electricity was turned on, that the defendants were guilty of such an act of' negligence as to make it actionable under the law, while the-claims of defendants were that they used every ordinary caution and used all the foresight that could be expected of them: under the particular facts and circumstances surrounding this-case. It is for you, gentlemen, and you alone, to say what' the truth is in that respect. I might say here that you cannot fin'd a verdict in favor of the plaintiff unless you find that the defendants, or at least such one of them against which you' may find a verdict, was guilty of negligence. Negligence is defined to be a lack of ordinary care, or such care as persons- (or, in this case, corporations) of ordinary care or prudence ordinarily use under all the facts and circumstances surrounding them at the time.”</p> <p>The jury rendered a verdict for the plaintiff against both) defendants, and assessed the damages at $5,125. Motionswere made by both defendants for judgment non obstante,. and also that the verdict be set aside and for a new trial; all of which motions were overruled and judgment entered for the plaintiff on the verdict, and the defendants separately appeal.</p>

<p> Guardian and ward: Cumulative bond: Discharge of sureties, iohen valid: Liability: Prior conversion of moneys: Failure to account. </p> <p>1. Pursuant to an order of the county court the guardian of an incompetent person gave a new bond, and on the same day filed an account. Thereupon the court made an order reciting that the new bond was to take the place of the one theretofore given, allowing the account, and directing that the old bond be satisfied and the sureties and principal be released from further liability thereon. Notice was not given as provided for in sec. 3967, Stats. 1898, nor was there any examination of the account as prescribed in sec. 3972, nor any compliance with sec. 42815. Held, that the release was ineffective and that the new bond was merely cumulative.</p> <p>•2. The sureties on such new bond were liable, in accordance with its terms, for a breach thereof by failure of the guardian to settle his account at the expiration of his trust and to “pay and deliver all the property, real and personal, remaining in his hands, or due from him on such settlement,” — even though, before such bond was given, the guardian had converted moneys of the estate to his own use and had given himself false credits of equal amount in the account filed and approved when the new bond was given.</p> <p>'3. The attempt of a guardian to loan funds of his ward to himself, and the giving of his note therefor, cannot be considered an investment of the trust funds or lessen his liability to account therefor as guardian.</p>

<p> Highways: Town-line road,: Repair of bridge by county: Liability of town. </p> <p>1. A road which had become a public highway by user and working was situated as near the town line as the nature of the ground would permit and, together with a bridge thereon, had been kept in repair by the adjacent towns jointly for a number of years. In a proceeding to compel one of the towns to collect by tax a portion of the expense incurred by the county in rebuilding such bridge, allegations of the above facts are held sufficient to show that the repair and maintenance of the bridge devolved upon said towns, without an allegation that the requisite steps were taken under secs. .1272, 1273, Stats. 1898, to lay out the highway as a town-line road.</p> <p>2. To give a county jurisdiction, under sec. 1319, Stats. 1898, to aid towns in the repair and construction of bridges, the conditions prescribed by that section must be fulfilled by the towns; and where two towns are jointly liable for the maintenance of a bridge, it seems that their concurrent action is necessary to give the county jurisdiction.</p> <p>3. Sec. 1311, Stats. 1898, authorizing counties to repair state or county roads under certain circumstances, has no application to other roads.</p> <p>4. In order that a county may charge a town, under sec. 1338, Stats. 1898, with the cost of repairing a bridge, there must be a compliance with the essential requirements of that section; and in a mandamus proceeding to compel the town to insert the claim in the tax roll the petition of the county should show what the decision was from which an appeal was'taken by the freeholders; what steps were taken to perfect the appeal; that the committee of the county board made the required examination and' determination as to repairs; that the chairman of the board caused the repairs to be'made; and, where two towns were chargeable with the cost of the repairs under sec. 1273, Stats. 1898, that such cost had been apportioned between them as provided in that section.</p>

<p>Appeal from a judgment of tbe circuit court for Columbia county: E. Ray Stevees, Circuit Judge.</p> <p>Tbe facts as found by tbe trial court, witbin tbe issues made by tbe pleadings, were as folloAys:</p> <p>Plaintiff and defendant during tbe time stated in tbe complaint, and at tbe time of tbe trial, Avere owners of adjoining buildings. Tbe partition AA^all was partly on tbe premises of eacb. Up to tbe summer of 1902 such wall extended above plaintiff's roof upwards of ten feet and above defendant’s ■roof upwards of two feet, and the construction was such that the water from the latter’s building flowed therefrom to his own ground. During stich summer he constructed on the rear portion of his building, extending some twenty-five feet towards the front thereof, an addition called a rigging loft. In so doing it became necessary to take down the wall above the old -roof from the front of the building back to the space covered by the new construction. Tie did so and extended his roof over the wall on plaintiff’s side so that water deposited on the former’s roof necessarily flowed onto the premises of the plaintiff. For the purpose of controlling the manner of such flow defendant attached a trough to the partition wall near the top thereof and on plaintiff’s side, extending the same back to the aforesaid new consfru'ction and connecting it at that point with a pipe conductor extending along on plaintiff’s side of such wall to the rear thereof and thence to the ground, thereby causing the water to flow from the former’s roof in a body -to the premises of the plaintiff at the foot of such pipe. Plaintiff verbally consented to that arrangement when the trough and connections were erected. In constructing the rigging loft it became essential to close up a chimney located in the partition wall, which plaintiff had a right to have permanently maintained. To that end it was mutually agreed between the parties that defendant might close up the chimney on condition of his building a new one at a place agreed upon for the joint-use of the parties, which was done.</p> <p>By reason of the arrangement aforesaid for conducting the water from defendant’s roof to the ground, water at times flowed from his roof in such volume as to overload the trough or it flowed oyer the same and fell upon plaintiff’s roof. Occasionally the trough filled up with ice, causing water to flow upon plaintiff’s roof, and in consequence dee formed thereon.. By reason of the insufficiency of the arrangement water from defendant’s roof injured plaintiff’s building to a considerable extent. November 24, 1902, plaintiff notified defendant to discontinue such arrangement, to remove the trough and its connections from the wall, and to so control the flow of water from his building as to prevent the same from going on to the premises of the plaintiff. He neglected to comply with such request and thereupon this action was brought. Plaintiff was injured by reason of water flowing from defendant’s roof to his in the manner aforesaid, in the sum of $50 subsequent to the 24th day of November aforesaid.</p> <p>On such facts the court held that the only right which defendant had to permit the water from his building to flow on to plaintiff’s premises, and to maintain a trough and its connections to carry the water to the ground in the manner stated, was a license revocable at the plaintiff’s pleasure; that the notice to remove the trough and connections and to cease allowing the water to flow from defendant’s building to that of the plaintiff and on to the latter’s premises was a revocation of such license; that the maintenance of the trough and its connections and permitting the water to flow from'defendant’s roof to that of plaintiff was a continuous trespass, which plaintiff was entitled to have abated; that plaintiff was entitled to have judgment accordingly, and enjoining defendant from further maintaining the trough and its connections, and from further permitting the water to flow from his building to the premises of the plaintiff, and judgment requiring defendant to restore plaintiff’s building to its former condition by removing therefrom the said trough and its connections, and for $50 damages and costs. Judgment was so rendered, from which this appeal was taken.</p>

<p>Appeals from orders of tbe circuit court for Ashland county: Joim K. Paeish, Circuit Judge.</p> <p>The following is the substance of those parts of the complaint necessary to be examined in deciding the questions raised by the appeal:</p> <p>(1) February 5, 1901, plaintiffs, by an agreement in writing with defendants Thomas TI. Nash and Guy Nash, which which will be denominated hereafter the original contract, bound themselves to convey to said defendants, at their option, on or before April 15, 1901, certain specified lands in Ashland county, Wisconsin, at $5 per acre cash, the seller to furnish complete abstracts of title before sale.</p> <p>(2) Plaintiffs therein also agreed to use their best ability to obtain for such defendants all lands in townships 40>and 41, ranges 3 and 4, and the west one-half of range 2 west, in Ashland, Sawyer, and Price counties, on which the former had options, which the latter should elect to buy at the net option price, or such better terms as could be secured of the owners, plus five per cent, to be paid said plaintiffs for their services and expenses; and further agreed to use their best endeavors to obtain the necessary extensions of such options to ■enable said defendants to inspect the lands, and to procure abstracts of such lands without expense to the defendants; ■copies of which options were attached to the contract and marked “A,” “B,” “D,” and “E</p> <p>(3) Plaintiffs further therein agreed to serve the said defendants to the best of their ability for two years, if necessary, in procuring options in their names, for the benefit of and on the best terms obtainable for said defendants, on all other lands in towns 41 and 42, in ranges 3 and 4, and the west half of range 2 west in Ashland county; the north two-thirds of town 40, ranges 3 and 4 west.in Sawyer county; the north two-thirds of town 40 of the west half of range 2 west in Price county; said defendants to pay five per cent, commission on the purchase price of all lands which they should elect to accept. Such price to include cost of procuring original and tax titles when both were required, the cost of legal services and court and officers’ fees to be borne by said defendants where the plaintiffs should be unable to get the vendors to bear the same.</p> <p>(4) June 15, 1901, the time for said defendants to elect under the options was extended to September 1,1901.</p> <p>(5) Before September 1,1901, the price for the lands mentioned in paragraph 1 was reduced to $4.50 per acre.</p> <p>(6) About September 1, 1901, said defendants elected to take said lands mentioned, and a binding contract in respect thereto was made.</p> <p>(7) Thereafter and before September 26, 1901, said defendants assigned to defendants James B. Nash and William F. Vilas a one-half interest in the' completed contract aforesaid, so that it subsisted between plaintiffs on one side and all of the defendants herein on the other.</p> <p>(8) About September 26, 1901, to correct errors in the original contract and enlarge its scope, plaintiffs and defendants made articles of agreement which thereafter with said contract as corrected constituted and were treated as one entire-agreement.</p> <p>(9) By the first of said articles it was provided that the-completed contract of purchase should embrace certain specified lands in town 41, ranges 2 and 3 west, and town 42, range 2 west.</p> <p>(10) Therein by the second article it was agreed by the plaintiffs to sell and convey by deed with full covenants to said defendants, if tbe latter should so elect witbin ninety days, at $3.50 per acre, the seller to furnish abstracts of title, certain specified lands in Ashland county, Wisconsin.</p> <p>(11) Therein by the third article plaintiffs agreed for $2.50 per acre to sell and convey to said defendants, by deed with full covenants, and to furnish abstracts of title, if the latter should so elect within ninety days, certain specified lands in Ashland county, Wisconsin.</p> <p>(12) Therein by the fourth article plaintiffs agreed to likewise sell and convey to defendants, if they should elect within ninety days, certain lands in township 41, range 4 in Ashland county, Wisconsin, at $90 per forty, subject to taxes of 1898, 1899, and 1900, and to furnish abstracts of title at the expense of said defendants.</p> <p>(13) Therein by the fifth article it was stipulated that the second, third, and fourth articles should be deemed independent agreements, and so far as defendants should elect to buy lands mentioned in any of such articles, they should pay in addition to the price per acre agreed upon, and at the time of the payment thereof, five per cent, as additional consideration.</p> <p>(15) Said articles of agreement acknowledged payment of $7,500 on lands in article 1, and $26,600 on lands that might be taken under, any of the articles, any excess over the purchase price for lands taken to be repaid with interest from the date of the advancement.</p> <p>(16 and 18) It was further agreed in such articles that plaintiff should by such lawful means as might be necessary procure the title to be vested in defendants to all lands mentioned in article 1.</p> <p>(17) In order to comply with that obligation and to secure performance of all agreements and covenants on their part, plaintiffs agreed to and did deliver to defendants their, deeds of conveyance with full covenants covering certain specified lands.</p> <p>(19) Plaintiffs further agreed in such articles to likewise deliver deeds of lands mentioned in the fourth of said articles within ten days after procuring title thereto.</p> <p>(20) It was therein further agreed as to the deeds so delivered as security that the acceptance thereof should not be deemed an exercise of the option to purchase lands described therein, but that upon the exercise of such option said deeds should be deemed absolute.</p> <p>(21) It was therein further agreed that so fast as the title to lands mentioned in the first article should be perfected in said defendants, the stipulated price therefor should be deemed paid out of the money advanced by the defendants as aforesaid, and that when the entire advancement of $34,100 should thus have become applied, including the application of any part to lands described in articles 2, 3, and 4, if defendants should have elected to buy any of such lands, then there should become due plaintiffs, as fast as they should perfect title to more of said lands described in said first article, the like ratable price as agreed upon, the same to be paid as the same should become due, subject, however, to the performance of all plaintiffs’ agreements contained in said articles, as security for which defendants were privileged to retain a reasonable amount thereof.</p> <p>(22) Plaintiffs therein further agreed to.perfect title in said defendants to the lands mentioned in the first article as speedily as possible, and that if any were not so treated within two years, the rights of parties should be adjusted and any sum due from one side to the other be paid.</p> <p>(23) It was therein further agreed that upon a settlement being made between the parties at any time, plaintiffs having fully performed their obligations and defendants elected not to exercise their option as to any of the lands conveyed to them as' security, the same should be reconveyed.</p> <p>(24) It was therein further agreed that if defendants elected to buy any of the lands mentioned in the second, third, or fourth of such articles they should he liable for the taxes thereon of 1901.</p> <p>(25) November 18, 1901, defendants duly elected to purchase the lands mentioned in articles 2 and 3, and the prior deeds thereof to them thereupon became absolute. About December 20, 1901, all agreements in respect thereto on plaintiffs’ part were fully performed, whereupon the purchase price of the lands according to the contract, being $2,000 and five per cent, additional, became due to them.</p> <p>(26) About December 20, 1901, said defendants duly elected to purchase the lands described in the fourth article. On January 10, 1902, plaintiffs fully performed all their obligations in respect thereto, whereupon there became due to them under said articles $1,800, and five per cent, thereof and of the $278.18 taxes paid by defendants, and $17.50, cost of abstract; in all $1,921.41.</p> <p>(27) Plaintiffs performed all their obligations under the written contract and articles, and caused to be vested in defendants, prior to January 15, 1902, title to all lands mentioned in article 1, except 320 acres.</p> <p>(28) About January 15, 1902, plaintiffs furnished defendants abstracts of title showing the facts last alleged.</p> <p>(29) By reason of such facts there became due to plaintiffs by 'January 15, 1902, for lands mentioned in article 1, $52,464.25.</p> <p>(30) About the date last mentioned defendants refused to pay any further sum on any of the lands, hut induced plaintiffs to believe that if they would obtain a judgment quieting title as to certain alleged adverse claims, which did not exist in fact, they would fully perform their part.</p> <p>(31) By reason of such inducement, plaintiffs, by due course of law, obtained a judgment as to such alleged adverse claims, and obtained quitclaim deeds as to some of them.</p> <p>(32) About April 24, 1902, plaintiffs caused abstracts of title to the lands mentioned in article 1 to be brought down to date, and delivered the same with a certified copy of the aforesaid judgment to defendants, and demanded payment of the money then due upon such original contract and articles.</p> <p>(33) Ample time was given defendants to pass on said abstracts after said April 24th, but they refused to pay plaintiffs any part of what was then due.</p> <p>(34) April 26, 1902, plaintiffs finally perfected title in defendants to all of the lands mentioned in article 1.</p> <p>(35) June 14, 1902, plaintiffs delivered to defendants abstracts of title showing the facts aforesaid, whereby there became due to the former for the 320 acres of land aforesaid, $1,440, and the whole purchase price of the land mentioned in articles 1, 2, 3, and 4, not previously due, also then became due.</p> <p>(36) About June 5, 1902, all deeds from defendants to plaintiffs, or procured by the former to be given to the latter, were duly delivered to the register of deeds of Ashland county, Wisconsin, for record, and were duly recorded, since which time defendants have asserted ownership to all lands affected by such deeds.</p> <p>(37) After opportunity was given defendants to examine the abstracts as stated, plaintiffs to further satisfy said defendants, at their request, caused new abstracts of title to be prepared by their own agent and pei’formed other acts to the end that all complaints on their part in respect to the title might be removed, which new abstracts were accepted by defendants before November 30, 1902.</p> <p>(40) There is due plaintiffs from defendants under the terms of the original contract and articles, after allowing for all advances and all other proper credits, a balance of $23,516.33.</p> <p>(41) The amount stated became due for lands mentioned in articles 1, 2, 3, and 4, and plaintiffs are entitled to a lien thereon to secure the payment of said sum. The value of said lands consists, in the main, of timber thereon, which defend■ants, unless enjoined by the court, will cut and remove, thereby impairing the said right of lien.</p> <p>(42) August 6, 1901, defendants duly elected, under said original contract and articles, to purchase the lands mentioned in the option referred to in the articles as Exhibit A for •$7,512, ivhereby there became due to plaintiffs a commission thereon of five per cent., less a part thereof received from the .grantors, the balance being $200. •</p> <p>(43) Eebruary 8, 1901, pursuant to said original contract, plaintiff^ arranged for the purchase by the defendants, at their option, of certain lands in Ashland county, which pursuant lo such contract and such arrangement defendants purchased for $2,692.70, whereby they became indebted to the plaintiffs for $135.64 as a five per cent, commission.</p> <p>(44) Further pursuant thereto, Eebruary 8, 1901, plaintiffs procured an option for defendants on lands known as the Swift lands, which was thereafter exercised at $2,880, whereby they became indebted to plaintiffs for $144 as commission.</p> <p>(45) Further pursuant "thereto said defendants elected to punchase lands under the option referred to as Exhibit B, and the contract was fully consummated by vesting the title to said lands in said defendants for $4,860, whereby there became due to the plaintiffs under such original contract $243 as commission.</p> <p>(46) Further pursuant thereto about December 16, 1901, defendants elected to take the lands referred to in such option, Exhibit B, and the title thereto was vested in them for $1,400, whereby under said original contract there became due plaintiffs $70 as commission.</p> <p>(47) Further pursuant thereto, February 8, 1901, plaintiffs commenced negotiations to obtain for defendants options to purchase lands in Sawyer county, known as the Mississippi Eiver Logging Company lands, and thereafter served defendants to that end with the result that July 9, 1902, they became owners of said lands for $17,600, whereby there became-due to plaintiffs from defendants, under said original contract, $880 commission.</p> <p>(50) There is due plaintiffs from defendants under the terms of said original contract, as commission, $1,671.64,. with legal interest as follows:</p> <p>On $200, from August 6,1901.</p> <p>On $134.64, from November 10, 1901.</p> <p>On $144, from November 15, 1901.</p> <p>On $243, from December 15, 1901.</p> <p>On $70, from December 16, 1901.</p> <p>On $880, from July 9, 1902.</p> <p>Judgment was demanded as follows:</p> <p>1. For $23,516.33, as purchase money of lands in articles-1, 2, 3, and 4, with interest as claimed.</p> <p>2. That the same, with costs, be adjudged a lien on such lands, to be enforcible as the court might direct.</p> <p>3. That defendants be enjoined, pending the litigation,, from conveying any of the lands to third persons or impairing the value thereof.</p> <p>4. For $1,671.38, for the commissions aforesaid, with the-interest thereon as stated.</p> <p>5. For such other and further relief as the court may deem proper.</p> <p>The defendants James B. Nash and William F. Vilas demurred to the complaint, first for insufficiency, second for improperly uniting several causes of action, third for insufficiency of facts as to the first cause of action attempted to be set forth, fourth for insufficiency of facts as to the cause-of action attempted to be set forth in paragraph 42, also as to that attempted to be set forth in paragraph 43, also as to that attempted to be set forth in paragraph '44, also as to that attempted to be set forth in paragraph 45, also as to that attempted to be set forth in paragraph 46, also as to that attempted to be set forth in paragraph 47.</p> <p>Tbe defendants Thomas E. Nash and Guy Nash demurred to the complaint upon tbe ground above stated.</p> <p>Tbe demurrers were overruled. From tbe orders accordingly entered an appeal was taken to tbis court by defendants. Thomas E. Nash and Guy Nash, and an appeal was likewise taken by defendants J ames B. Nash and William F. Vilas.</p>

<p> Judgment: Vacating: Right of a person not a party. </p> <p>After judgment establishing the mutual rights of the parties in an action against a county to annul tax certificates on plaintiff’s lands, the owner of a portion of such certificates, not being a party to the action nor seeking to be made a party nor showing that the county is a mere nominal party and he the real party in interest, has no right to have the judgment vacated on his motion.</p>

<p>Appeal from a judgment of tbe circuit court for Lincoln county: W. C. Silveeti-ioeN, Circuit Judge.</p> <p>This is an action to recover, for physician’s services and for drugs furnished, $101.30. Plaintiff is a physician, and defendant one of the towns of Lincoln county, Wisconsin. On April 10, 1901, the board of supervisors of said town met to organize as a board of health, and elected one A. W. Schulz chairman, one Ered Kleinschmidt clerk, and one William Hackbarth as health officer.' In November one John Hintz, a well-to-do farmer residing in the town, and his family, became afflicted with smallpox. When first afflicted Dr. Walsh was employed by Hintz. Soon thereafter-Dr. Walsh wrote to one Kluch, a resident of the town but not a member of the board of health or of the town board, of the trouble with the Hintz family, suggesting that they be quarantined. The letter was placed in the hands of Schulz, chairman, who promptly exhibited it to Hackbarth with the explanation that, the letter showed there ought to be a sign put on the Hintz: house, and to attend to it and put the sign on, if necessary.. The next day Hackbarth called at the Hintz home and after' talking with Hintz, through his daughter, went to the city of' Merrill and had some talle with plaintiff about attending to* the patients. What was said at that time between plaintiff' and Hackbarth is in dispute, but, pursuant thereto, plaintiff' at once visited the family and found them quarantined, andi on his return sent them medicine by Hackbarth. Plaintiff continued to visit and treat the family until their recovery, and made eight palls for which he charged $8Q, and furnished medicine for which he charged $21.30. Hackbarth never reported to, nor received any instructions from, the board of health, and the board 'never approved his employment of plaintiff. Plaintiff’s claim was presented to tbe town board of audit, brought up at tbe annual meeting’, but not allowed.</p> <p>Tbe action was tried in tbe county court, where judgment was rendered for defendant. Plaintiff appealed to tbe circuit court, tbe action was tried by tbe court, and tbe court found for tbe plaintiff and directed that judgment be entered against defendant for full amount of plaintiff’s claim, with interest and costs, from which judgment this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Kenosha county: E. B. Bexdew, Circuit Judge.</p> <p>This is an action for personal injuries sustained by the plaintiff while in the employ of the defendant in operating a brass rolling block machine in the defendant’s brass rolling mill, May 22, 1902. Issue being joined and trial had, the court, at the close of the testimony on the part of the plaintiff, granted a nonsuit, and from the judgment entered thereon the plaintiff appeals.</p> <p>The evidence, as stated on the part of the plaintiff, tends to prove that the machine so operated by the plaintiff consists in the main part of a short shaft about four feet long, at the end of which is a cylindrical block, made of wood, about eighteen inches long and eight inches in diameter. The block is set behind the large rolls and about three or four feet from them, and is used in winding into rolls the thinner bars of brass as they pass through the large brass rolls. The shaft and block is made to revolve or turn by means of two large pulleys on the opposite end of the shaft from the wooden block, which are connected by belts to pulleys on the main shaft above. These two pulleys are about ten inches apart and revolve in opposite' directions. They are not so connected with the shaft as to impart motion to it, except by a clutch, which slides back and forth upon the shaft between the pulleys and engages with either of them. This clutch is so moved by means of a foot lever connected therewith and extending under the block at the opposite end of the machine, where it may be easily touched by the foot of the operator. Thus, when the clutch is moved so as to engage with the outer pulley, in which position it is kept by means of a spring unless moved therefrom by means of such lever, the block revolves so as to wind or coil up the bars of brass ás they come from the rolls; but if the clutch is disengaged from the outside pulley by means of such lever, the block ceases to turn unless the clutch be moved by such lever over to and engaged with the other pulley, in wbicb case the block will be caused to revolve in the opposite direction, loosening and unwinding the roll of brass. The friction of the clutch upon the pulley is upon a bearing of about three quarters of an inch; that is to say, the surfaces of contact between the clutch and the pulley, or the surface of the recess in the clutch and the corresponding surface on the pulley, are each about three quarters of an inch in area, and each surface is curved and kept well oiled, so that a very slight pressure upon the lever will disengage the clutch from the pulley and stop or reverse the block as the same is used in the conduct of the defendant’s business.</p> <p>In using this machine the employee takes hold of the bar of brass near the end, after it has come through the rolls, and, as it is slowly rolled out, carries it under the block, and with the hands bends the end of the bar around the block, pressing it tightly to the block, and causing the end of the bar to become caught between the bar and the block at the point of contact on the under side of the block, and the bar to be rolled up. When the bar has been entirely rolled or coiled up on the block he touches the lever with his foot, thus disengaging the clutch from the pulley and stopping the block and permitting him to remove the roll of brass from it. It takes considerable strength to bend and hold the bar tight about the block in order to get it caught. The block revolves and runs away from the operator very slowly, the bar of brass passing from the rolls to it about as fast as a man walks slowly. These pulleys on the block machine are flanged so that the belts cannot be removed therefrom. There is no belt shifter or any other means of disengaging power from this machine except the lever shifting the clutch as described; and when the machine is engaged in winding or coiling a bar of brass it is impossible to disengage the clutch from the pulley on account of the great tension of the bar of brass as it is being wound up. There is then no other way of stopping the block than by cutting the belt transmitting power to it.</p> <p>The defendant employed tbe plaintiff and set bim at work at this block machine five or six weeks before the accident. He was inexperienced with machinery, and particularly with this block machine, and knew nothing about its operations or its dangers. The plaintiff had not applied for such work, and the defendant directed one familiar with the operation of the machine to instruct him how to run it. The plaintiff was given no instruction as to such impossibility to stop the machine when in operation, but, on the contrary, was told that when he wanted to stop the machine all he had to do was to put his foot on the lever disengaging the.clutch. The plaintiff believed from what he had been told that he could stop the machine instantly, at any time, by placing his foot upon the lever. He had no occasion to attempt to stop the machine while it was engaged in winding brass, and knew, moreover, that to stop the machine at such a time would cause serious trouble in his work. The defendant and its foreman knew that the machine could not be stopped when in use and under tension.</p> <p>The plaintiff worked at this machine the greater part of the time for five or six weeks immediately before the accident. On the morning of that day, just as he was bending a bar about the block and holding it so that it would become caught and rolled up, his foot slipped on a small quantity of oil on the floor near the machine, causing his hand to slip between the bar and the block. He immediately pressed upon the lever with his foot, and tiren he jumped on it with both feet, and learned for the first time that it was powerless to stop the machine. Up to the timé he had stepped upon the lever with both feet only his hand was caught, and that was not injured. But the machine could not be stopped until several minutes after, and then was stopped by cutting the belt with a pocket knife, after the plaintiff’s arm hadjreen slowly wound up, broken in several places and greatly mangled, and his body had been turned about the block three times and seriously injured by striking against the machine. The plaintiff testified that he was not aware of this oil upon the floor on that day until after he was injured. It was lubricating oil which had been used, and undoubtedly came from the oil cup under the shaft hanger, which was above the place where the plaintiff worked, and which was permitted to overflow.</p>

<p> Fish and game: Preservation: Constitutional law: Unlawful shipment: Forfeitures: Pleading: Evidence: Cross-examination of defendant: Place where fish were taken: Court and jury: Degree of proof necessary. </p> <p>1. The state has the right to enact reasonable police regulations ta preserve for its people the fish and game within its limits. It may prohibit ‘the shipment or sale of more than a given quantity within a given time by any one person; and such a prohibition is not an unconstitutional infringement upon private property rights.</p> <p>2. Under sec. 1498£?, Stats. 1898, making it the duty of district attorneys to prosecute actions for violation of the fish and game laws when complaint is made by the state warden or any deputy, the complaint in an action in justice’s court to recover a forfeiture for such a violation, if it appears on its face to be made by one of the officers named, need not state that it is made on behalf of the state, notwithstanding the general provisions of sec. 3602 in that regard.</p> <p>2. In an action to recover a forfeiture for a violation of the fish laws, it was not a prejudicial error to permit defendant, on his cross-examination, to be asked as to a prior arrest for a similar offense, where in answering the question he voluntarily stated that he had been convicted of such offense.</p> <p>4. It was not error nor an abuse of discretion in such a case to compel defendant, on his cross-examination, to answer the question whether he was not constantly under surveillance of the officers of the law while in business as a fish dealer at another place, and whether they did not frequently take fish from his possession. „</p> <p>¡5. The question being whether certain pike, which had been shipped to defendant from 0. on Lake W., had been taken from that lake, testimony of game wardens having jurisdiction in that vicinity that at about the time of the shipment pike were caught in large quantities in said lake, more than sufficient to satisfy the local demand, and that they knew of none being-shipped in from other points, was admissible.</p> <p>*6. Testimony of a witness that she knew the kind of pike taken from Lake W., and that those in question were not the same kind of fish, but were much larger, was sufficient to render improper an instruction that it appeared by the undisputed evidence that the pike in question were taken from said lake.</p> <p>7. Sec. 23, ch. 368, Laws of 1901 (providing, in effect, that shipments of fish from inland points in the state shall come under the provisions of law pertaining to shipment of fish taken from the inland waters of the state), has no application to a case where the shipment complained of was from a city situated upon the outlying waters of the state, although the fish had previously been shipped to that city from an inland point. In such a case, therefore, the fact that the fish had originally been shipped from an inland point did not raise a conclusive presumption that they had been taken from inland waters.</p> <p>8. Uader sees. 3294, 3295, Stats. 1898, ia a ciyil action to recover a forfeiture for a violation of the fish and game laws which is not a misdemeanor, the state need not establish its case beyond a reasonable doubt, but only by a preponderance of the evidence.</p>

<p> Malicious prosecution: Advice of counsel: Evidence. </p> <p>jl. If a.criminal prosecution was commenced in good faith under the advice of counsel, particularly of the proper prosecuting officer, after a full and fair statement to him of all the facts known to the complainant or believed by him to exist, such complainant is not liable for malicious prosecution.</p> <p>2. In an action for malicious prosecution it was competent for defendants to testify generally that they fully and fairly stated all the facts to the district attorney and acted upon his advice; and where this testimony was undisputed it was proper to direct a verdict in their favor.</p>

B. BeldeN, Circuit Judge. The appeal is by plaintiff from an order striking out, as irrelevant and redundant, certain portions of the complaint.

Williams, Circuit Judge. Tbis is an action to recover damages upon tbe ground tbat defendants’ negligence caused tbe death of plaintiff’s intestate.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: ObeeN T. WilliaMS, Circuit Judge.</p> <p>Tbis is an action of ejectment against H. W. Heinrichs to recover possession of land described in tbe complaint as follows : A strip of land off of tbe south side of tbe following described real estate: Said strip is about eighteen (18) feet wide at tbe easterly end, sixteen (16) feet wide at tbe middle point, and about ten feet (10) wide at tbe westerly point, to wit: Tbe south seven and one-balf acres of land off of tbe ■sixteen acres of land, more or less, in lot two (2), in section twenty-eight (28), town eight (8), range twenty-two (22) east, in Milwaukee county, Wisconsin, bounded by a line beginning in tbe section line between sections 28 and 29, twenty-six and two-tbirds rods from tbe southwest corner of said lot two (2) ; running thence east one hundred rods (100), more or less, to low-water mark of Lake Michigan; thence on said line back to tbe place of beginning; thence north twenty-six and two-tbirds rods to a post; thence east one hundred rods (100), more or less, to low-water mark of Lake Michigan; being tbe land formerly bounded on tbe south by Becker’s and north by Steffen’s land, in Milwaukee county, Wisconsin.</p> <p>Tbe answer is, in effect, a general denial. Both parties claim title through divers mesne conveyances from one Thomas Severn.</p> <p>April 1, 1867, Thomas Severn conveyed by deed to August Loennecker the following described land: Part of lot two (2) in fractional section twenty-eight (28), town eight (8), range twenty-two (22) east, bounded as follows, viz.: Beginning at a post in the section line dividing sections twenty-eight (28) and twenty-nine (29), distant twenty-six and two-thirds (26$) rods from the southwest comer of said lot two (2) ; thence east one hundred (100) rods to low-water mark on Lake Michigan; thence back by the same to the place of beginning; thence north twenty-six and two-thirds (26$) rods to a post; thence east one hundred (100) rods to low-water mark on Lake Michigan, containing sixteen (16) acres, more- or less; and being also bounded on the south by August BeckePs land, on the north by one Steffen’s land, on the east by Lake Michigan, and on the west by Jacob Rader’s land. On or before June 24, 1891, by descent and by diver’s mesne conveyances, the title conveyed by said deed from Severn to-Loennecker became and was vested in Johanna Loennecker, and the plaintiffs derive their title through her.</p> <p>On October 5, 1867, said Thomas Severn conveyed to August Becker the following land: Beginning at the southwest corner of lot two (2) of fractional section twenty-eight (28), in town eight (8) north, of range twenty-two (22) east; running thence east ten (10) chains to a point, a corner of Frederick Gram’s land; thence by the same north three and four-hundredths (3.04) chains to a point; thence by the same east sixteen and fifty-hundredths (16.50) chains to low-watermark of Lake Michigan; thence back by the same course to the place of beginning; thence north six and thirty-hundredths (6.30) chains to a point, a corner of August LoenneckePs land; thence by the same east twenty-five and eighty-hundredths-(25.80) chains to low-water mark of Lake Michigan, containing ten acres, be the same more or less, county of Milwaukee, Wisconsin.</p> <p>It appears from the evidence that a rail fence was built some time before 1867 upon what was understood to be the’ line between the tracts conveyed to August Loennecker and August Becker, above described. It would also appear, from the call in the deed to August Loennecker for the south boundary as August BeckePs land, that Becker must have been in possession prior to the time he received his deed, as his deed appears to have been executed in October, while the deed to-Loennecker was in April, 1867. However, it is undisputed that the rail fence existed between the two tracts in 1867, and that August Loennecker and those claiming title through him continued to occupy up to this fence; that the fence was recognized as the dividing line between the property of Loen-necker and Becker, and in 1875 a new fence was built, by agreement between the parties, each building one half, upon the same line as the old rail fence. This occupancy by the Loenneckers under claim of title continued until 1891, at which time Johanna Loennecker executed a land aontract to one Gether, and afterwards, in 1892, conveyed to him, by deed, the property, same description as in deed from Severn to Loennecker. Afterwards, on January 29, 1892, one William J. Kaul as president, and C. R. Gether as secretary, of a corporation known as North Lawndale Company, acknowledged a plat of a tract of land called “Glen Owen Plat,” embracing part of the lands described in land contract from Loennecker to Gether, together with other lands, the south boundary of Glen Owen being 440 feet north of the southwest comer of lot 2. On the 2d day of March, 1892, O. R. Gether and wife conveyed to the North Lawndale Company the land in question, together with other land. April 29, 1895, the North Lawndale Company conveyed to said Gether the south seven and one-half acres of the sixteen acres formerly conveyed by Johanna Loennecker to Gether. , On the same day said Gether and wife reconveyed to Johanna Loen-necker said south seven and one-half acres, and she continued to occupy the premises up to the old fence until her death in 1900. January 8, 1892, August Becker and wife sold by land contract, or bond for deed, to C. D. Stanhope, the land deeded to him by Severn. January 13, 1892, Stanhope ac knowledged a plat of land called “Stanhope Subdivision No Three,” which plat shows the north boundary of land so platted to be 440 feet north of and parallel to south line oí lot 2. January 9, 1893, Stanhope assigned an undivided one-half interest in said land contract to C. R. Gether, and on January 10, 1893, August Becker and wife conveyed by deed to Stanhope and Gether the land described in the land contract. August 31, 1896, Stanhope and wife conveyed to Gether the land described in deed from Severn to Becker. August 31, 1896, Gether and wife reconveyed said land to August Becker. In 1900 Becker conveyed to defendant, and in 1901 defendant built a fence on a line ten feet north at the west end and eighteen feet north at the east end of the line of the old rail fence, and being on the north line of the description by courses and distances in deed from Severn to Becker. According to courses and distances given in deed from Severn to Becker, Becker’s north line would be 415.8 feet north from the south line of lot 2, and the south line of the Loennecker tract 440 feet north of the south line of lot 2, leaving a strip of about twenty-five feet between the two tracts; but the old fence as the north boundary of the Becker tract was ten feet at west end, and eighteen feet at east end, farther south than the north line of the Becker tract, according to courses and distances specified in deed from Severn to Becker. This strip is the land in dispute in this action.</p> <p>The action was tried by the court, and the findings of fact are substantially in accordance 'with the facts heretofore stated, except the court found that by the making and recording of Glen Owen plat, and the making and accepting of certain conveyances from the North Lawndale Company to Gether, and from Gether to Johanna Loennecker, Gether and Johanna Loennecker recognized as the true south boundary of the Loennecker land a line 440 feet north of and parallel to the south line of lot 2, being the south line of Glen Owen plait; and further found that the strip of land in suit was not included within the description in deed from Severn to Loen-necker made in 1867, nor in deed from Johanna Loennecker to Gether made in 1892, nor within the description of the intervening or subsequent conveyances, but that said strip was included within the description in deed from Severn to Becker, and subsequent conveyances under which defendant claims, and that the plaintiffs and those under whom they claim had not held adverse possession of the strip of land in suit for a period of twenty years contimionsly immediately preceding tbe commencement of tbis action. And tbe court found, as conclusions of law, that defendant was entitled to judgment. Judgment was thereafter rendered in favor of defendant, dismissing tbe complaint with costs, from which tbis appeal was faken.</p>

<p>.Street railways: Extension of existing system: Ordinances: Submission to vote of electors.</p> <p>An ordinance granting tire right to extend an existing street railway line or system upon other streets and highways in the city is not, if the term of such franchise is limited to expire at the same time as that of the existing franchise of which it becomes a part, subject to the provisions of sec. 1, ch. 387, Laws of 1903, in respect to submission of ordinances to a direct vote' of the electors.</p>

Williams, Circuit Judge. It appears by the record that one Edward Silverman, deceased, was agent of the respondent company at Milwaukee during his lifetime, and that he died insolvent March 31, 1901, owing the respondent, for premiums theretofore collected by him, $1,076.95; that on Saturday, March 30, 1901, he gave to the respondent’s general agent his check on the First National Bank, Milwaukee, for this sum, and that he had on deposit in said bank at that time a larger…

0. Braze®, Judge. Plaintiff in error was convicted of having violated an ordinance or resolution of the hoard of health of the town of Lake prohibiting the bringing of any garbage, offal, night soil, refuse, dead dogs, dead horses, or the dead carcasses of other animals, except as may be designated for human food, for the purposes of burying, deposit, disposal, consumption, or any other purpose, into the town of Lalce, and providing that any violation thereof should be…

Halsey, Circuit Judge. This record presents a third trial of tbe same case considered under tbe same title in 119 Wis. 597, 97 N. W. 276, where tbe facts axe sufficiently set forth.

C. Ludwig, Judge. This is an action to recover the amount due for goods and merchandise which plaintiff claims to have sold defendant in the month of June, 1903. The cause was tried by the court without a jury.

C. Ludwig, Judge. Plaintiff and defendant lived in Milwaukee, and were engaged in buying and selling real estate. Robert 0. Thielman,. who' owned certain property in Milwaukee, lived at Tomahawk, Wisconsin.

Tarrant, Circuit Judge. This case was here upon a former appeal. 119 Wis. 509, 516, 97 N. W. 176. That appeal was from a judgment setting aside a deed of conveyance from the original plaintiff, Clinton Burnham (since deceased), to his wife, the defendant Anna Burnham, and canceling a mortgage on the property described in the deed, executed .February 6, 1901, and the mortgage executed May 21, 1901.

Halsey, Circuit Judge. This is an action of interpleader, brought by a fraternal benefit association against rival claimants of the amount due upon a benefit certificate issued by the association upon the life of one John Burkhardt. The action was tried by the court, and there is no bill of exceptions.

<p> Manslaughter: Killing in heat of passion, without design, etc.: Involuntary hilling while committing assault: Preconcerted■ joint assault. </p> <p>The evidence in this case is held sufficient to sustain the conviction of the defendants of manslaughter in the third degree:— of one under either see. 4354 or sec. 4355, Stats, 1898, and of the other under sec. 4355.</p>

TaRRAht, Circuit Judge. This is an appeal from an order appointing commissioners in a proceeding to acquire real estate for railway purposes.

J. Vihjb, Circuit Judge. In October, 1899, tbe plaintiff and a corporation of wbicb be was president, tbe McCord Lumber Company, owned and controlled a very large amount of timber tributary to Superior, and bad made a general logging contract with tbe Bayfield & Western Railway Company, whereby tbe latter, through a series of years, was to cut, log, and haul tbe logs to tbe booms of tbe plaintiff tributary to bis sawmill at Superior. logging operations bad already commenced,…

EbeoR to review a judgment of the circuit court for Oneida county: W. 0. SilverthorN, Circuit Judge.

It appears from tbe record that May 28, 1902, the plaintiff commenced an action against John T. Eriend and three other parties to recover $5,976, over and above all offsets, founded upon express contract.

C. Ludwig, Judge. Action to recover on contract made between tbe defendant and tbe Teme Haute Creosoting Company, and assigned by tbe latter to tbe plaintiff, wbo performed its obligations. Tbe contract is in tbe following words: “Milwaukee, Wis., August 14, 1902. Mr. James O’Donnell, Milwaukee, Wis.

C. Ludwig, Judge. This action was originally commenced in justice’s court to recover for a breach of warranty on the sale of the judgment described in the pleadings. An appeal was taken from the judgment rendered in justice’s court to the superior court of Milwaukee county.

C. Ludwig, Judge. This action was brought to reform a warranty deed from defendants to plaintiffs.

Williams, Circuit Judge. This is an appeal from a judgment of tbe circuit court requiring Id. T. Ferguson, as administrator of tbe estate of Mary McIntyre, deceased, to pay a judgment against liim as sucb administrator and in favor of Mary Ann Woods. Issue being joined and trial bad, tbe circuit court found, as matters of fact, in effect: (1) Tbat May 24, 1901, II.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Waeresc D. Taebaht, Circuit Judge.</p> <p>This is an action of mandamus, brought on the relation of a taxpayer of the village of West Allis against the village officers to compel the submission of a certain gas franchise to the vote of the people, under sec. 959 — 52, Stats. 1898. There was no material dispute as to the facts, which were, in substance, as follows:</p> <p>On the 21st of December, 1903, the West Allis Gas Company, a corporation, applied to the village board of West Allis for a franchise to lay and operate gas mains in the streets of the village, and submitted a copy of a proposed ordinance granting such franchise. The application and the proposed ordinance were prablished in the official newspaper of the village, the first publication being in the paper dated January 2, 1904, but in fact issued on the evening of December 31, 1903; and the second publication being in the issue dated January 9, 1904, but appearing January 8, 1904. On January 15, 1904, a petition, signed by the relator and 163 other electors of the village of West Allis, was filed with the village clerk, demanding that the proposed ordinance be submitted to a vote of tbe people. Tbe village board at tbeir nest meeting1, held on January 18, 1904, refused to submit tbe ordinance to a vote of tbe people, whereupon this action was brought. It further appeared that at the general election held in November, 1902, 340 votes in all were cast in the village of West Allis, as shown by'the poll list of that election; that said petition for referendum was not signed by twenty per cent, of the voters whose names appeared upon said poll list, but that said petition was signed by 164 electors, which was greatly more than twenty per cent, of the number of names upon the poll list.</p> <p>Upon these facts the court made findings and entered judgment directing the issuance' of a peremptory writ of mandamus, and the defendants appeal.</p>

<p>Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BubNell, Circuit Judge.</p> <p>Action to recover on an alleged contract of guaranty. It was claimed in tbe complaint tbat on March 19, 1890, O. D. Peck delivered bis promissory note to plaintiff, obligating bimself to pay bim one year from tbe date thereof $2,000, with interest thereon from such date at tbe rate of ten per cent.; tbat on November 14, 1895, defendant signed a writing thereon guaranteeing tbe principal thereof, such writing being in these words: “For value received I hereby guarantee tbe payment of tbe principal on tbe within note;” tbat at tbe time of tbe commencement of this action there was due of such principal over and above payments by defendant $1,550. Judgment was demanded accordingly. Defendant answered, among other things, tbat she signed her name on tbe back of tbe note at tbe time alleged in tbe complaint, but tbat she bad neither knowledge nor information sufficient to form a belief as to whether tbe alleged written guaranty was then thereon or not; and in any event tbat there was no consideration whatever to support it.</p> <p>There was evidence to the effect tbat there was a writing on tbe note of some sort when defendant signed her name thereon, but as to whether it included tbe words “for value received” tbe evidence was conflicting. Tbe evidence was further to tbe effect that tbe maker of tbe note died testate prior to tbe signing of tbe guaranty; that defendant was bis residuary legatee; that subsequent to ber signing tbe guaranty sbe called at tbe bank where tbe note was left for collection and made several payments thereon; and that there was no consideration to support tbe guaranty, unless it was in that in consideration thereof plaintiff agreed not to file any claim on tbe note against tbe estate of tbe maker. As to whether there was such an agreement tbe evidence was in cónflict. Tbe jury found specifically in favor of tbe defendant on both of such disputed matters, and thereon judgment was rendered for tbe defendant, from which plaintiff appealed.</p>

W. Buketell, Circuit Judge. This is an appeal from a judgment rendered on a special verdict in an action for damages 'which plaintiff alleges he sustained through defendant’s negligence. Defendant is a corporation engaged in the coal business at Sheboygan, Wisconsin. In conducting its business it maintains coal docks in that city, located on the river’s edge, facilitating the business of transferring coal from boats to its docks.

<p> Husband and wife: Services of physician to wife living separate: Liability of husband: Evidence: Burden of proof: Wife as witness. </p> <p>1. Upon the evidence in this case (stated in the opinion) it is held to have been a question for the jury whether defendant’s wife was living separate and apart from him without his consent and without cause when the services in question were rendered to her.</p> <p>2. Where a wife is living separate and apart from her husband without cause and without his consent, he is not liable for the services of a physician employed by her if he did not authorize-such employment.</p> <p>3. One who furnishes necessaries to a wife living separate and apart from her husband has the burden of showing that she is justifiably so living.</p> <p>4. A wife is a competent witness against her husband in an action. against him to recover for necessaries furnished to her.</p>

<p> Conversion of personal property: Sheriff: Offer to return: Injury to goods: Instructions to jury. </p> <p>1. In an action against a sheriff and undersheriff for the conversion of personal property contained in a houseboat levied upon by the officers, it was not error to instruct the jury that if the person placed in charge of the boat by the defendants forbade plaintiff to take the property, knowing or having been informed that plaintiff was the owner thereof, this was a denial by defendants of plaintiff’s right and amounted to a conversion of the property.</p> <p>2. The evidence in such action — tending to show, among other things, that after the levy upon the houseboat the defendants removed plaintiff’s goods therefrom and put them upon the beach, but forbade the plaintiff to take them away; that while lying upon the beach the goods were rained upon and injured; and that two or three days later defendants offered to let plaintiff have the goods, but he then refused to take them because they had been spoiled — is held to sustain a verdict for the plaintiff.</p> <p>3. It was not error to instruct the jury that if, after removal from the boat, the goods, had been materially injured by rain or otherwise, or had been in part carried away by persons unknown, plaintiff was not bound to accept defendants’ offer of return, but was entitled to recover the fair value of the property.</p>

J. Foote, Judge. The plaintiff is a New York corporation, doing business in the state of New York, and the defendant is a merchant located in this state.

<p>Appeal from a judgment of the circuit court for Kewau-nee county: Michael KiewaN, Circuit Judge.</p> <p>November 3, 1903, plaintiff filed -with the county clerk of Kewaunee county, to be acted upon by its comity board, a claim for services as constable in a criminal action before a justice of the peace for such county. He. intended to comply with sec. GJ'T, Stats. 1898. The annual meeting of the board for 1903 was concluded without its taking final action on the claim. The situation was such that if the claim was filed in such a way as to give the county board jurisdiction of the matter its failure to act thereon was equivalent to a disal-lowance thereof. Thereupon the claimant appealed to the circuit court, setting forth in his notice, in addition to the facts before stated, that the justice of the peace before whom the action was instituted and prosecuted in which the services in question were rendered filed a certified statement of all actions or proceedings had, or tried, before him, in which the state was a party, and wherein the county of Kewaunee had become liable for the fees of officers, jurors, witnesses, or interpreters on the part of the state who actually attended and gave in a statement of their attendance and travel, including the action in question. The appeal was in form per' fected.</p> <p>Upon the matter coming on to be heard in circuit court the defendant moved to dismiss because the return failed to< disclose compliance with sec. 680, Stats. 1898, so as to give* the county-board jurisdiction to act. in the matter. Before-deciding the motion the court permitted evidence to be offered showing that a certificate of the justice of the peace covering the matter in question in the form prescribed by such section was filed with the county clerk seven days before the annual meeting of the county board; that the same was approved by the district attorney, except as to the matter of plaintiff’s fees and those of one Grace Havens, attention being called to the fact that separate bills were on file as to such matters. The motion was denied. A part of plaintiff’s ciaim was disallowed because not properly itemized and the balance, $2.47, was allowed and judgment ordered therefor, with costs. Judgment was rendered accordingly.</p>

<p> Circuit and county courts: Jurisdiction: Estates of decedents: Partnership: Accounting: Wills: Construction: Title to personalty: Laches: Limitation of actions: When cause of action accrues: Failure to present claim against'decedent: Pleading: Demurrer: Presumptions. </p> <p>1. The circuit court has jurisdiction of an action hy the personal representative of one deceased partner for an accounting and settlement of the partnership affairs,'although the estate of a subsequently deceased partner is in process of settlement in the county court, where there is a surviving partner who is a necessary party and against whom judgment cannot he recovered in the county court.</p> <p>2. In an action hy the personal representative of a deceased partner for a partnership accounting and settlement, there being no suggestion in the complaint that the persons interested in the estate of the deceased, some of whom were minors without guardians, had settled the partnership matter, no such settlement will he presumed, on demurrer, to have taken 'place.</p> <p>3. A will giving to the testator’s widow during widowhood, and until his youngest child should arrive at the age of maturity, “all my property of whatever description . . . including my interest in the firm,” etc., did not give the widow such partnership interest as a specific bequest, to he enjoyed hy her in specie, hut merely mentioned such interest for greater certainty and disposed of it in the same way as the other property.</p> <p>4. Neither the widow nor the other legatees (the testator’s children) ' could take title to such partnership interest except through the medium of an executor or administrator; and upon appointment of an administrator the right to recover such interest vested in hiip.</p> <p>5. From the complaint in the action for an accounting it appeared that the widow and children were ignorant of their rights under the will and of their right to an accounting; that the widow did not qualify as executrix; that no administrator was appointed until about sixteen years after the will was proved, when one of the testator’s sons, within a few months after attaining majority, was appointed administrator with the will annexed and commenced the action. Held, on demurrer, that the complaint did not show laches.</p> <p>6. There being no person in existence who could bring «the action for an accounting until the appointment of plaintiff as administrator, the cause of action did not accrue until such appointment, and the action was not barred, under sec. 4221, Stats. 1898, at the expiration of ten years after the dissolution of the partnership by the death of plaintiff’s testator.</p> <p>7. Defendant, not having pleaded a limitation under sec. 4251, Stats. 1898, could not rely thereon, even if the time limited thereby had expired.</p> <p>8. Failure to present a claim on behalf of the testator’s estate against the estate of the subsequently deceased partner did not operate as a bar, under sec. 3844, Stats. 1898, to the action for an accounting, or prevent the reaching of partnership property therein, whatever its effect might be as to a money recovery against the last-mentioned estate.</p> <p>9. That the testator’s widow may, contrary to legal right, have participated in continuing the business of the partnership — no such fact being stated in the complaint — is not ground for a demurrer for defect of parties upon the theory that the widow is a necessary party.</p>

<p>Appeal from an. order of the circuit court for Sheboygan county: Michael KikwaN, Circuit Juclge.</p> <p>This is an appeal from an order overruling a demurrer to the complaint. The material allegations of the complaint are as follows: Jolm Franey, the defendant, was associated with Thomas F. Franey under the firm name of T. F. Franey & Co., which was engaged in a retail furniture business and the sale of musical instruments and undertakers’ supplies. On June 30, 1902, defendant, in consideration of $4,700, sold to plaintiff his undivided one-half interest in the partnership, being all his right, title, and interest in the stock and in the bills receivable and accounts owing *to the firm. Defendant agreed to pay all outstanding bills payable or accounts payable by the firm of T. F. Franey & Co., and to hold the plaintiff whole, safe, and free from these accounts. It was agreed that plaintiff was to have the same rights over the management of the business and affairs of the firm as the defendant had had. It is alleged that defendant represented that there were no bills payable, and that plaintiff relied upon this representation, while in fact the firm was indebted in the sum of $3,815.92. It is also alleged that:</p> <p>“By reason of the defendant’s failure, neglect, and refusal to pay and discharge the outstanding bills payable by said firm of T. F. Franey & Co., as provided by the terms, conditions, promises, and covenants of said bill of sale, the plaintiff was required to pay and did pay the then outstanding bills payable or accounts payable of said firm of T. F. Franey & Co., the sum of $3,815.92.”</p> <p>Plaintiff asked fox judgment fox this amount and interest. Defendant interposed a general demurrer to the complaint. This was overruled, and he was allowed thirty days in which to answer. As stated above, this is an appeal from such order.</p>

<p>Appeal from a judgment of the circuit court for Sheboy-gan county: Michael KibwaN, Circuit Judge.</p> <p>This action was commenced in a justice’s court of Washington county by the plaintiff to recover for services alleged to have been performed by plaintiff for defendant. The ■complaint was oral, and alleged that -defendant was indebted to the plaintiff in the agreed sum of $100 for services performed by plaintiff for said defendant, at his special instance and request, in and about finding said defendant a purchaser for his farm, situate in the town of Jackson, She-boygan county, Wisconsin. The answer is a general denial. Judgment was rendered in justice’s court for the plaintiff.</p> <p>Defendant appealed to the- circuit court for Washington county, and a change of venue was taken to the circuit court for Sheboygan county and the case tried. After the evidence was in, both parties moved for a directed verdict; and the court, on plaintiff’s motion, directed a verdict for the plaintiff for the amount claimed. Judgment was rendered in favor of the plaintiff upon the verdict, from which this appeal is taken. Defendant assigns the following errors: (1) The court erred in directing a verdict for plaintiff. (2) The court erred in refusing to direct a verdict for defendant.</p>

<p>Appeal from a judgment of tbe circuit court for Iowa county: G-eoege Clementson, Circuit Judge. Reversed.</p> <p>Tliis action was commenced before a justice of the peace to recover damages for injuries to the plaintiff’s traction engine caused by the alleged insufficiency and want of repair of the public highway in question. Issue being joined and trial had, judgment was rendered in favor of the defendant before the justice. The plaintiff appealed to the circuit court, where the cause was retried de novo; and at the close of the trial a verdict was returned in favor of the plaintiff and his damages assessed at $100. From the judgment entered thereon for the amount stated and costs, the defendant appeals.</p> <p>The giving of the requisite notices is admitted, and the amount of damages sustained is conceded to be as found by the jury. There is evidence tending to prove that at the time of the accident the traction engine was being driven in a southwesterly direction; that the road was dug out of the hillside, and the dirt was thrown down over the lower side; that there was quite a steep hill rising on the left or easterly side of the road; that lengthwise the highway was nearly level and about eight feet wide at the place of the accident, and for about two or three rods and further back it was wider; that at the foot of the little hill it was wide enough for teams to pass; that the hind wheels of the traction engine were seven feet one and a half inches in width and four feet seven and a half inches in diameter; that the diameter of the front wheels was three feet three inches, and the track made by them was four feet three inches; that from the center of the hind wheels to the center of the front wheels, when the engine was straight, was seven feet, and then the front wheels were nine and a half inches from the rub iron on the boiler; that in turning around it takes twelve turns of the steering wheel to cramp the front wheel to a point half an inch from the rub iron. At the time of the accident the plaintiff was riding on the left or uphill side of the engine, and bis employee, Buttress, was riding on tbe right or downhill side of the engine, and steering the same.</p> <p>Among other things, the plaintiff testified to the effect that they came along to the place of the accident at a slow gait, like a team would walk — he watching the upper side and Buttress the lower side; that just as they got down the hill, onto the level, and were turning the curve there was a kind of steep bank below, and Buttress was crowding the bank on the left-hand side, when the plaintiff noticed a rock sticking out of the bank, and so he told Buttress to “turn down,” and he did turn down, and the front wheel got over the bank; that the road was not wide enough, and so the engine got down over the bank, which gave way, and Buttress could not get it back; that he did not know the size of the rock; that it was imbedded in the bank, with a sharp corner sticking out; that they did not run over the rock, but were up on the bank as far as they dared to go; that the engine rolled over once and a half below.</p> <p>Among other things, Buttress testified to the effect that he had run the engine for three years before the accident, and understood steering it; that it was steered with a crank or roller; that turning the crank turned the front wheels, by means of two chains on each side; that the plaintiff told him to turn it down and he did turn it down, and the front wheels went over the bank; that at that time the left hind wheel was running up against the bank on one side, to keep-from going over on the other side; that he saw the rock after-wards ; that he did not know how far the engine was from the rock when it went off the bank, but it was not many feet; that he tried to get the front wheels back onto the bank, but he could not do so, and when the hind wheel struck the 'bank it gave way and the engine tipped over.</p>

<p> Criminal law and practice: Jurors: Challenge to the array, how made and determined: Waiver: Jury lists: Drawing: Harmless irregularities: Assault with intent to kill: Evidence: Opinions: Appeal: Bill of exceptions. </p> <p>1. By the rules of the common law a challenge to the array is required to he made in writing stating specifically the grounds thereof.</p> <p>2. The Code is a complete system for criminal as well as civil actions. While it provides no challenge to the array it does not invade the inherent power of the courts, which, by the settled practice, accords to either party to an action triable by a jury an opportunity to object to the entire panel of jurors upon any ground deemed by him to affect the validity thereof. 3. An objection of the sort before mentioned may be by a formal challenge, or by a mere objection, or by a motion to quash the return, or to dismiss the jury, mere form not being material, and it may properly be, as it commonly is, denominated a challenge to the array.</p> <p>4. In whatever form the challenge to the array, so called, is made, the specific grounds relied on should be definitely stated, though not necessarily in writing, it being sufficient if it is made at the bar of the court and taken down by the reporter.</p> <p>5. How specific the grounds of a challenge to the array should be made in order to entitle the moving party to a hearing is within the discretion of the court, such discretion, however, not being-broad enough to permit the grounds to be stated so generally or obscurely as not to reasonably inform the adverse party of the precise nature thereof.</p> <p>6. A proper objection to the entire panel of jurors should be summarily determined by the court, evidence being taken where necessary to the decision of disputed questions of fact.</p> <p>7. In order to entitle a person deeming himself aggrieved by a ruling on a challenge to the array to a review thereof on an appeal, exception must be duly taken thereto, and the specific objections and proceedings thereon and such exception be embodied in a hill of exceptions.</p> <p>8. The law requiring the jury commissioners to furnish the clerk of the circuit court a list of names of persons qualified to serve as jurors to be drawn from the body of the county is satisfied if each, commissioner proposes a partial list and all are adopted hy the commissioners as the one list required 'by the statute and are delivered to the clerk of the circuit court accordingly.</p> <p>9.Failure of the commissioners to authenticate the list of names-furnished to the clerk as above stated, or of the clerk of the circuit court to make a list of such names and deliver the same to at least one of the commissioners, or failure of such clerk or his deputy to personally write the names upon separate slips, of paper, fold and deposit the same in the box ready for drawing, such acts being performed by an employee of the clerk under his direction and in his immediate presence, are harmless irregularities, in the absence of proof by a party deeming himself aggrieved that he is actually prejudiced thereby.</p> <p>10. As a rule irregularities in executing a statutory method for-selecting jurors are deemed immaterial, unless it appears probable that the person .desiring to take advantage thereof may probably be prejudiced thereby.</p> <p>11. The rule that an unsuccessful challenge to a juror is waived' by failure to object to the panel collected for the trial, does-not apply to a challenge to the array.</p> <p>12. As to whether the purpose of a person who has shot another was-to take that other’s life, proof that had the bullet spent its force-in the direction it was discharged the result would probably have been such other’s death, is competent.</p> <p>13. Proof that a person assaulted another with a deadly weapon in-such a way that had the effect of the assault not been turned aside by some means not reasonably to have been expected by such person, the natural and probable result would have been the death of such other, is sufficient to warrant a finding that the intention of such person in making such assault was to-take such other’s life.</p> <p>14. Exceptions to instructions not preserved in a bill of exceptions cannot be reviewed upon appeal. [Syllabus by Maeshall, J.]</p>

J. Fbuit, Circuit Judge. Plaintiff in error, hereinafter called “defendant,” was charged by information under sec. 4423, Stats. 1898, for that in Vernon county, Wisconsin, by various specified misrepresentations as to the amount, quality, characteristics, and cost of a tract of land in Crawford county, Wisconsin, on which he desired a loan, he did receive and obtain from IT.

<p>Eeeoe to review a judgment of tbe circuit court for Chippewa county: A. J. ViNjb,. Circuit Judge.</p> <p>On tbe 28th day of January, 1901, at tbe city of Stanley, Chipjiewa county, while tbe wife, two daughters, grandchild, and son-in-law of plaintiff in error were seated at dinner at the home of the son-in-law, Fred Miller, the plaintiff in error, then about sixty years of age, entered the rooms so occupied and shot and mortally wounded said Miller without any apparent motive therefor. Plaintiff in error was arrested, and the information charged him with the crime of murder in the first degree. A special plea of insanity was interposed. Upon such issue the jury rendered a verdict that at the time of commission of the alleged offense plaintiff in error was not insane. On the coming in of such verdict, counsel for plaintiff in error, upon information received from medical experts during the trial on the insanity issue, immediately informed the court that there was probability plaintiff in error was then insane and incapacitated to act for bimself, and asked for an inquisition, as provided by sec. 4700, Stats. 1898. Thereupon an order was entered denying the application upon, the ground that it came too late. The trial then proceeded upon the information charging murder in the first degree, which resulted in a verdict of guilty. Motions in arrest of judgment and for new trial were made and denied, to all of which due exceptions were taken by plaintiff in error. Thereafter judgment of conviction was pronounced, and plaintiff in error sentenced to the Wisconsin state prison for the term of his natural life, from which judgment and conviction a writ of error was sued out and the record removed to this court.</p> <p>The testimony produced on the trial tended to show that for a period of about thirteen years immediately subsequent to 1874 the plaintiff in error was employed at Badger, Wisconsin, in a mill, and while so engaged was struck upon the head by a bursting pulley and injured, of the effects of which he subsequently complained; that he went from Badger to Eau Claire, where he continued in the same line of employment, as a sawyer in a mill, until about seven or eight years prior to the homicide. While working in said mill ho complained of his head aching, and was frequently laid off on that account, complained of trouble with his head, and ceased sawing in the mill on account of difficulty with his head. While working in the mill he had family troubles; would tell about them and cry. After ceasing work in mill at Eau Claire, he remained there about a-year and a half without any particular employment; then went to New' York; remained there about three years. While in New York he committed so many insane acts that a party wrote to the chief of police at Eau Claire relative to his conduct and requesting that he be taken care of. He returned to Eau Claire, found employment working in the woods in the winter seasons, and other seasons upon a small tract of land near Eau Claire. At times he would sit with his head down, apparently in deep study, jump up suddenly, dance on the floor, sit down again, saying nothing unless spoken to, the expression of his countenance at such times being peculiar. Although the character of his wife was beyond reproach, he imagined she had run away with another man and was an inmate of a house of ill repute; imagined she was dead, and cried about it. People said he was crazy. The police officers considered him insane on Saturday preceding the homicide, which occurred on the following Monday. A cousin of his was committed to an insane asylum, and one of his brothers was considered insane. He was formerly lively, bright, and active. ITis condition was greatly changed during a period of eight or ten years preceding the homicide. He walked with his head down, passed people without noticing them; sometimes quiet, other times very talkative; his conversations .incoherent and disconnected. While working, talked to himself. Sat around at times as though brooding over trouble, and had peculiar expression in his eyes. Would walk the streets in the nighttime, head down, talking to himself. About October, 1900, he. went to Stanley, where he remained until' a week before the homicide, during which time he worked in a laundry with deceased, lived with deceased, and spoke well of him. He and his wife, and deceased and his wife, lived in the same home. On Saturday preceding the homicide he requested an officer at Eau Olaire to lock him up.</p> <p>At 11 o’clock on day of the homicide, before taking the train at Eau Olaire for Stanley, he had conversation with police officer, shook hands with him, bade him good-by, said he was going away, and probably officer would not see him again. After getting on the train he stated to an acquaintance that he was going to New York, appeared absentminded, dazed, and had peculiar expression in his eyes. After arrival at Stanley, and a few minutes before homicide, he met an acquaintance, to whom he stated he would see him later; appeared to be in a burry and nervous. He went into tbe bouse of deceased, where family was seated at dinner, and said to deceased, “Fred, yon have got to die. Yon have got to die,” and shot him. ITis daughter* wife of deceased, said, “Now, pa, see what you have done,” and he responded,. “Never mind; I have something more.” After the homicide, and when the officers came to the house of deceased to arrest him, he put his arms around his daughter’s neck and said he wanted to kiss her, and kissed her. Immediately after the homicide he was cool, acting as though nothing had happened, made no effort to escape, and, when asked why he did the shooting, said, “I don’t know; I loved the boy and loved the daughters.” Immediately after the homicide, and after he was taken to the police station, an old acquaintance, whom he met and called by name a few minutes prior to the homicide, saw him, and he failed to recognize him. While at the station, and about three hours after the homicide, he appeared cool and collected, and remarked to several people who had gone to the station to see him that there must be some curiosity that people collected there, and said if the officer would take him out on the street he woulcl exhibit himself; showed no remorse, did not seem to be excited in any way, and did not seem to realize that he had committed any crime.</p> <p>The testimony further shows that he had exaggerated delusions of wealth, of being a detective, of being the owner of large properties, offering,to pay bills of others in whom he had no interest, claiming he had large amounts of money on his person when he had none, placing exorbitant values on valueless papers, and putting them in a safe for safe-keeping, manifestations of undue and abnormal suspicions, suspicions that he was being robbed, visionary schemes, wanting to rent rooms for factory, delusion about having half a million dollars, offering to buy valuable properties. Medical experts testified to his insanity, based upon these delusions and. peculiarities which were testified to upon the trial. Several nonexperts who met him frequently, knew him well, and conversed with him pronounced him insane.</p>

<p> Criminal law: Arrest and examination: Complaint on information and helief: Bribery: Official action of common councilor: Grand jury: Evidence of proceedings: Immunity of witness: Testimony of accomplices: Instructions to jury. </p> <p>1. The formal written complaint under sec. 4776, Stats. 1898 (relating to the arrest and examination of offenders), may he upon information and helief, even when the offense charged therein is a felony.</p> <p>2. Even though an ordinance pending before a city council attempts to grant a privilege which in law the council has no right to grant, yet if it deals with a subject over which the council has jurisdiction and the members of the council have a right to vote-thereon, the voting on such ordinance is action by such members in their official capacity, and if one of them receives money from any person under an understanding or agreement that his vote, judgment, or action on the matter shall he influenced thereby, he is guilty of an offense under sec. 4475, Stats. 1898.</p> <p>3. Testimony of grand jupors and of the district attorney as to statements made before the grand jury, and the minutes of the grand jury’s proceedings, are admissible as original evidence upon a subsequent trial in court, if not objectionable under the-ordinary rules of evidence, whenever the court deems it necessary for the ascertainment of truth and in furtherance of justice; and especially is a defendant entitled to introduce such evidence for the' purpose of sustaining a claim (under sec. 4078, Stats. 1898, as amended by ch. 85, Laws of 1901) to immunity from the prosecution because of his having testified before the grand jury concerning the matter for which he is being prosecuted.</p> <p>4. The statutes (secs. 2553-2555, Stats. 1898) do not abrogate the common-law rules as to the competency of the evidence above mentioned. 5. Refusal to give requested instructions is not error where the general charge sufficiently and properly covers the points embraced in them and correctly informs the jury of the rules of law applicable thereto.</p> <p>6. Refusal to instruct the jury that they would not be warranted in convicting defendant, because the evidence relied on to establish guilt is the uncorroborated testimony of accomplices in crime, is held in this case not to have been an abuse of discretion, the testimony being amply sufficient to sustain the verdict of guilty.</p>

<p>Appeal from a judgment of the circuit court for Dane county: B. F. DuNwiddie, Judge.</p> <p>This is an action to restrain the commissioner of insurance from revoking the license issued to the plaintiff to do business in this state. The facts are mostly undisputed. The complaint alleges, in effect, that the plaintiff was incorporated in 1859 under the Laws of New York of 1853, and the amendments thereto, for the incorporation of life and health insurance companies; that by sec. 87 of the general insurance laws of the state of New York, first enacted as ch. 118 of the General Laws of New York for the year 1868, it is provided that:</p> <p>“Any domestic life insurance corporation which by its charter or articles of association is restricted to making a dividend only once in two or more years may hereafter, notwithstanding anything to the contrary in such charter or articles, make and pay over dividends annually, or at longer intervals, in the manner and proportions and among the parties provided for in such charter or articles.”</p> <p>That by sec. 83 of the general insurance laws of the state of New York, first, enacted as ch. 100 of the General Laws of 1872, it was provided that:</p> <p>“Any domestic life insurance corporation may ascertain at any given time, and from time to time, the proportion of surplus accruing to each policy from the date of the last to the date of the next succeeding premium payment, and may distribute the proportion found to be equitable, either in cash, in reduction of premium or in reversionary insurance, payable with the policy, and upon the same conditions as therein expressed at the next succeeding date of snch payment, notwithstanding anything in the charter of snch corporation to the contrary.”</p> <p>And the complaint further alleges that all of its policies issued by it since its organization and now outstanding were executed in the state of New York, and are payable at the home office of the plaintiff in the state of New York.</p> <p>The complaint further alleges, in effect, that for several years prior to the commencement of this action the plaintiff had done business in this state under licenses issued by the several commissioners of insurance; that December 12, 1902, one L. A. Brunckhorst, as a citizen and resident of this state, presented to the commissioner of insurance a petition or complaint wherein he alleged, in effect, that the plaintiff was a foreign life insurance company doing business in this state on the mutual plan, being duly licensed by the insurance department ; and further alleged that the plaintiff “is now violating, and has for many years knowingly and wilfully violated, the insurance statute” of this state known as sec. 1952 and the acts amendatory thereof, “to the great damage, loss, and detriment of the people of the state of Wisconsin, in that said company has failed to comply with the provisions of said sec. 1952 ... in failing to make distribution of the surplus funds of said company among the policy-holders of said company as provided in and by said section; . . . that by reason of such violation thousands of citizens of the state of Wisconsin have been deprived of moneys justly due them by forfeitures imposed by” the plaintiff, “and are now and continue to be deprived of money justly du'o them from said company;” and prayed that the plaintiff be summoned to appear before the insurance commissioner to show cause why its license should not be revoked in accordance with see. 1955 of the Statutes of 1898 and acts amendatory thereof. The complaint alleges that pending the hearing of that petition, and on March 1, 1903, the commissioner issued a license to the plaintiff for one year, similar to such former licenses held by the plaintiff; that a hearing was had upon such petition June 16, 1903, and the defendant, as such commissioner, made his decision thereon July 31, 1903, wherein,, among other things, he decided as follows: “I further decide that” the plaintiff “has violated said sec. 1952, as charged” by the complainant, L. A. Brunclchorst, “by not complying with the provisions of said section. Therefore I hereby ratify the Equitable Life Assurance Society of the United States that if a statement, signed by the proper officers of the company, that there will be a compliance with sec. 1952, as herein decided, be not filed with this department within the period of thirty days from the date hereof, the license of the company to transact business in this state will be revoked at the expiration of that time.”</p> <p>The complaint herein further alleges, in effect, that the defendant, acting or assuming to act as such commissioner,</p> <p>“threatens to and will at the expiration of thirty days from July 31, 1903, revoke the license of this plaintiff to transact business in Wisconsin, unless within that period this plaintiff file with said defendant a statement in writing that it will comply with sec. 1952 as construed by said defendant (which construction said plaintiff alleges was and is erroneous), and threatens to and will thereafter revoke the license of the plaintiff to transact business in Wisconsin unless this plaintiff distribute among its policy-holders, regardless of the terms of their policies, the amount so erroneously found by the said defendant to be a surplus as aforesaid, in accordance with his said construction of said statute, and unless the plaintiff shall otherwise comply with said statute as so erroneously construed by the defendant.”</p> <p>The defendant’s answer to the complaint herein admits that the plaintiff is, and for more than forty years past has been, a corporation organized and existing under the laws of the state of New York, engaged in the business of life insur-anee on tbe mutual plan, and that for many years past it bad been duly licensed under tbe laws of tbe state of Wisconsin to transact sucb business witbin tbis state; that the plaintiff was incorporated in 1859 under tbe general act of tbe legislature of tbe state of New York passed June 24, 1853; that cb. 118 of tbe General Laws of New York for tbe year 1868, sec. 87, was duly enacted and became and was and is tbe law of the state of New York, as set forth in tbe complaint; that cb. 100 of tbe General Laws of 1872, sec. 83, of the state of New York, was enacted, became, was, and is tbe law of the state of New York, as alleged in tbe complaint; that tbe policies issued by tbe plaintiff since its organization and now outstanding were all executed in the state of New York and are payable at the borne office of tbe plaintiff in said state. The answer further alleges, among other things, in effect, that tbe surplus funds which tbis defendant determined to be in possession of tbe plaintiff subject to distribution under sec. 1952, and which, under tbe defendant’s decision, must be distributed among the policy-holders of tbe plaintiff annually or once in every two, three, four, or five years, pursuant to see. 1952, was composed in large -part of earnings and accumulations derived from payments made by policyholders of the plaintiff under such deferred-dividend policies; that tbe total amount of outstanding insurance of tbe plaintiff at tbe date of tbe decision of tbe commissioner was in excess of $1,300,000,000; that tbe total value of its assets at said time and now does not exceed $400,000,000; that during tbe last'ten years tbe plaintiff has paid in dividends $28,847,371.31; that sucb amount was paid as alleged and shown in tbe complaint; that tbe petitioner'was not a policyholder of tbe plaintiff; that tbe defendant, acting as sucb commissioner, “bad be not been enjoined by tbe writ issued in tbis action, would have revoked tbe license of tbe plaintiff to transact business in Wisconsin -within thirty days after July 31, 1903, if tbe plaintiff bad not within sucb time filed a statement in writing that it would comply with. sec. 1952 as construed by this defendantj and that this defendant intends, unless restrained by the order of this court, to revoke the license of the plaintiff to transact business in Wisconsin, unless plaintiff complies with the provisions of sec. 1952, and distributes among its policy-holders at least once in five years the surplus earnings which have been shown to be in the plaintiff’s possession; that the plaintiff-has many thousands of policy-holders within the state of Wisconsin;” that March 1, 1903, the defendant issued to the plaintiff a license to do' business in Wisconsin for the ensuing year because the plaintiff had otherwise complied with the requirements of the laws, of this state,- and this defendant was under restraint, as mentioned ; that the insurance contracts of the plaintiff issued to Wisconsin citizens now in force on December 31, 1902, amounted to $14,014,692, the annual premiums being paid thereon amounting to $428,100; that more than eighty-four per cent, of the insurance contracts and policies aforesaid now in force issued to and held by Wisconsin citizens and policy-holders are upon what is known as the ten, fifteen, and twenty year deferred-dividend plan, by which no dividends are to be paid or apportioned to, nor is any surplus divided between or among, such policies and insurance contracts until the end of the deferred-dividend period, and not then if a forfeiture is imposed upon death or the failure to pay premiums.</p> <p>The issues thus joined were tried by the court, and at the close of the trial the court made findings of fact and conclusions of law, and, among other things, found, in effect: (4) That the defendant, on July 31, 1903, in a proceeding theretofore commenced and heard before him as such commissioner for the revocation of the license of the plaintiff upon the ground that the plaintiff was issuing a form of life insurance policy containing provisions contrary to the requirements of sec. 1952 of the Statutes, as such “commissioner made a ruling in which he held that said plaintiff was issuing such policies in violation of the requirements of said section, and giving said plaintiff notice that, unless within thirty days from the date of said ruling it filed in said insurance department a statement that it would, comply with said section as interpreted by him in said ruling, he would revoke said plaintiff’s license to do business in this state.” (5) That the plaintiff did not comply with said ruling and is not complying therewith, but, on the contrary, has commenced this action to restrain the commissioner from enforcing his ruling. (12) That the plaintiff has assets in the total amount of $381,226,035.53, of which $73,354,138.03 is a surplus over and above the amount of the legal reserve and the amount required by the company for the purpose of discharging all its liabilities as they may occur in the future; that the amount of such legal reserve, together with the premiums becoming due and payable upon present contracts issued,- are sufficient to discharge all obligations of the plaintiff association as they mature; that the plaintiff has not made distribution of such surplus according to sec. 1952, “but has for many years violated, and does now violate, the provisions of said section by failing, neglecting, and refusing to distribute or apportion at least every five years the surplus profits and earnings of the plaintiff company among its policy-holders, residents of the state of Wisconsin, holding and representing policies and contracts to the amount of twelve million dollars and upwards.”</p> <p>And as conclusions of law the court held, in effect: (1) That the issue of deferred-dividend policies by which the distribution of dividends is deferred beyond a period of five years to the citizens of this state is contrary to the first provision of sec. 1952, and is unlawful; (2) that unless the plaintiff signifies its consent to discontinue the issue in this state of deferred-dividend policies, the commissioner of insurance “may and should, under the requirements of secs. 1955, 1972a, and. 1978 of the Statutes of 1898, revoke the plaintiff's license to do business in this state;” (3) that there has been no practical construction of sec. 1952 as permitting the issue in this state of said form of policy now binding upon the court; (4) that the defendant is entitled to judgment dissolving said preliminary injunction, dismissing this action, and for his taxable costs and disbursements; and ordered judgment to be entered accordingly. From the judgment so entered the plaintiff appeals.</p>