Volume 126 — Wisconsin Reports

<p>Appeal from an order of the circuit court for Milwaukee county: LawRence W. Halsey, Circuit Judge.</p> <p>The appeal is from an order overruling plaintiffs demurrer to defendant’s answer. The complaint alleges, in effect, the incorporation of defendant as a municipal corporation, the organization of plaintiff in 1882 under the statutes of Wisconsin then in force and the acts amendatory thereof, being re-enacted into sec. 1771, Stats. 1898, and that said plaintiff was so organized for the purpose of conducting a telephone business and maintaining telephone lines and exchanges, and in order to furnish lines of telephonic communication to the public throughout the state of Wisconsin and other states. That prior to the organization of plaintiff the legislature of the state of Wisconsin, in prescribing the powers of telephone corporations,. enacted a law which was re- • enacted by sec. 1778, Stats. 1898, which was held by this court, in Wis. Tel. Go. v. Oshkosh, 62 Wis. 32, 21 N. W. 828, to apply to the plaintiff corporation, and that said statute applies to city streets and authorizes a Wisconsin telephone company, including plaintiff, to construct and maintain its telephone lines along the streets of Wisconsin cities without applying for or obtaining from any city any franchise, and that no such city has the power to add to or detract from such legislative grant, and that the police power vested in said city to regulate its streets can be exercised only in harmony with said franchise. That under said power conferred upon plaintiff it established in defendant city of Milwcmkee a telephone exchange, which was a part of its system of telephone lines and exchanges throughout the state of Wisconsin, and connected -with, other exchanges throughout the United States. That as a part of plaintiff’s system, and necessary thereto, it has erected poles in defendant city along the streets and alleys thereof, and placed cross-arms,. so called, thereon for the purpose of stringing wires, by means of which plaintiff is enabled to carry on its said business. That the poles within the limits of said defendant city number 6,900, and plaintiff intends to constantly increase said number as the •demand requires, and that most of said poles bear cross-arms, ranging in number from one to eight. That plaintiff did not •construct and operate, and is not maintaining and operating, its said system within said city pursuant to any grant of ■authority or permission by defendant city, but constructed, maintained, and operated, and continues so to do, its telephone system in said city by virtue of the authority conferred upon it by statute similar to and re-enacted in secs. 1771 and 1778, Stats. 1898, and without objection on the part of the ■defendant. That the poles and lines of plaintiff in said city are so located, constructed, and maintained as not to interfere with public travel, and in no way affect public safety or convenience, and that plaintiff has at all times complied with the requirements of law regarding the location, maintenance, and operation of its poles and lines, and that its system in said ■city is safe and convenient for public use. That its property is not assessed and taxed the same as the property of individuals, but by legislative enactment has been exempted from taxation, but required in lieu of taxation to pay a license fee prescribed by see. 1222a, Stats. 1898. That it has at all times paid said license fee provided by law. That on February 9, 1904, defendant adopted an ordinance which was thereafter approved and published and which defendant ■claims has gone into force as a valid ordinance. The ordinance is entitled:</p> <p>“An ordinance regulating the construction and maintenance -of poles and their attachments in or upon any street, lane, alley, sidewalk or city property within the limits of the city of Milwaukee, Wisconsin, for telegraph, telephone, electric light or other poles in said city, except poles owned by the municipality itself, and providing a penalty for the violation thereof.”</p> <p>Secs. 1 and 2 of said ordinance provide that such poles-, shall be designated by the name of such owners or lessees, and each pole shall have a distinct number not more than ten feet from the grade of the street, and that such poles shall be placed, replaced, erected, and maintained only at such points as shall be designated by the board of public works, and that such board shall keep in its office an accurate record of the location of each pole as designated and permitted by it, and that such board at least once a year shall cause a thorough count, inspection, and record of the poles and cross-arms, and, if any shall be found defective, unsuitable, or unsound, it, shall notify the owners or lessees to forthwith replace the same, and it shall be the duty of such owners or lessees to replace such defective, unsuitable, or unsound pole or cross-arm within forty-eight hours. Secs. 3, 4, and 5 are as follows :</p> <p>“Sec. 3. It shall be the duty of all such owners or lessees on or before the first Monday in June, A. I). 1904, and annually thereafter, to apply in writing to the city clerk for a-license to maintain for the ensuing year the poles and cross-arms then erected, specifying the poles to be maintained by their designation, as provided for in this ordinance, together-with the number of cross-arms thereon, and the city clerk shall issue such license to such applicant upon presentation of a receipt from' the city treasurer acknowledging payment to him, for the use of the city of Milwaukee, of one dollar for-each and every pole authorized to be maintained thereby, including one cross-arm, if any, thereon, and ten cents for each additional cross-arm. Said license shall authorize the maintenance of the poles and cross-arms designated in such applications only, for the period of one year, to be computed from the first Monday in June of each and every year and no longer.</p> <p>“Sec. 4. All revenues derived from licenses under this ordinance shall be credited to and become part of the general city fund.</p> <p>“Sec. 5. Any person, firm, company or corporation who shall violate any provisions of this ordinance, shall be subject to a penalty of one hundred dollars for each and every offense, to be sued for and recovered in the manner now provided by law for the recovery of like penalties; and the erection or maintenance of any single pole or cross-arm in violation of the provisions of this ordinance, shall constitute a distinct and separate offense thereunder.”</p> <p>That the charter of the city of Milwaukee, ch. 184, Laws of 1874, and acts amendatory thereof, confer certain powers upon defendant respecting regulation of the streets in said defendant city, but that said streets belong to the public under the constitution and laws of the state of Wisconsin. That the state lias granted, by act of the legislature, to plaintiff the franchise and right to use such streets under sec. 1778, Stats. 1898, and that said defendant has no police control over its streets except the police control granted by the provisions of its charter. That the police power granted to defendant by its charter confers no authority to pass and enforce the oi’dinance. That the exaction of the license fee in said ordinance is not authorized by law nor by the provisions of ch. 184, Laws of 1874, and acts amendatory thereof. That said ordinance is void as being in contravention of the constitution of the United States and of the constitution of the state of Wisconsin. That said license fee specified in said ordinance is a tax, and that said ordinance was not passed with a view of regulating plaintiff’s business or property, but for revenue purposes only, and that said license fee is arbitrary and unreasonable in amount. The complaint further alleges that the defendant threatens to enforce the ordinance, which will cause a multiplicity of suits and irreparable injury to plaintiff, and prays that defendant be enjoined and that the ordinance be declared null and void.</p> <p>The answer admits the material allegations of the complaint, but denies that the poles are so located and maintained as not to affect public safety, denies that the ordinance was passed without authority of law, and that the exaction of the license fee was not authorized, and that the oi'dinance was invalid or contravenes any provision of the federal or state constitution, and denies that the license fee of one dollar a pole is unreasonable.</p> <p>Plaintiff demurred to the answer for want of facts sufficient to constitute a defense.</p> <p>They contended, inter alia, that the city has power to license under its power of regulation. Where the legislature has given a'company a general grant along the streets of a city, still the city, in the exercise of its police powers, can supervise and control the erection and maintenance of its poles; and it has been held that it may require a license for maintaining the poles upon the street. Monongahela v. Monongahela B. L. Go. 12 Pa. Co. Ct. 529; Philadelphia v. W. U. Tel. Go. 11 Phila. 327; Western Z7. Tel. Go. v. Philadelphia, 22 W. N. C. 39; Suburban L. & P. Go. v. Boston, 153 Mass. 200; Lancaster v. Bdison B. I. Go. 8 Pa. Co. Ct. 178; Southwark B. Go. v. Philadelphia, Ml Pa. St. 314, 321; Branson v. Philadelphia, 47 Pa. St. 329, 332; St. Louis v. W. U. Tel. G.o. 149 U. S. 465;'Western Ü. Tel. Go. v. New Hope,'IB1! U. S. 419; Ash v. People, 11 Mich. 347, 352; Mamet v. State, 45 Ohio St. 63, 77; Philadelphia v. W. U. Tel. Go. 40 Fed. 615; State v. Long Branch Gommfrs, 42 N. J. Law, 364; State v. Herod, 29 Iowa, 123; In re Wan Yin, 10 Sawy. 532; Jacksonville v. Ledwiih, 26 Ela. 168; Balter v. Cincinnati, 11 Ohio St. 534; Fayetteville v. Carter, 52 Ark. 301; Atlantic & Pac. Tel. Co. v. Philadelphia, 190 U. S. 160; Postal T. C. Co. v. Taylor, 192 U. S. 64; Taylor v. Postal T. C. Co. 202 Pa. St. 583, 584; Chester v. W. U. Tel. Co. 154 Pa. St. 466; St. Louis v. 17. U. Tel.. Co. 148 U. S. 92; S. C. 149 U. S. 465. While appellant and its business are exempt by express statute from taxation, appellant is not exempt from the payment of such license fee as may be imposed by the municipality for the purpose of enforcing an ordinance intended as a police regulation. Comm, v. Marlcham, 7 Bush, 486; State ex rel. Toi v. French, 17 Mont. 54; Fire Dept. v. Helfenstein, 16 Wis. 136; Carter v. Dow, 16 Wis. 298; Tenney v. Lenz, 16 Wis. 566; State exi rel. HenshaTl v. Luclington, 33 A¥is. 107; Travelers' Ins. Co. v. Friclce, 99 Wis. 367, 374; Morrill v. State, 38 Wis. 428, 435, 436; Philadelphia v. American D. Tel. Co. 167 Pa. St. 406; Western U. Tel. Co. v. New Hope, 187 U. S. 419; Ex paHe Gregory, 20 Tex. App. 210.</p>

<p> .Railroads: Condemnation of lend: Proof of title: Admission in 'petition. </p> <p>1. The filing of a petition hy a railroad company for condemnation of lands under sec. 1846, Stats. 1898, is the commencement of a suit, and the petition is a part of the record in the case.</p> <p>'2. An admission in such a petition that a certain person is the owner of the lands in question is conclusive upon the company, and as against it he need not make further proof of his title, even upon the trial of an appeal from the award of commissioners.</p> <p>'3. Where the landowner institutes the condemnation proceedings he must prove his title unless it he admitted.</p>

C. Ludwig-, Judge. The complaint contains two causes of action, one for slander and one for libel. After alleging the corporate character of the plaintiff and its business of buying and selling coal in the city of Milwaukee, the complaint states by way of inducement the existence of a coal famine in Milwaukee in the winter of 1902 and 1903, and the further fact that much hard■ship and suffering was occasioned to the people by reason thereof.

<p> Bills and notes: Alteration after delivery: Evidence: Statutes: Bore-closure of mortgage: Personal judgment. </p> <p>1. In a promissory note certain words were stricken out by a conspicuous red ink line. Tbe maker testified that the note contained nothing of the sort when he delivered it. His clerk testified that just before the maker signed there were no such erasures; and a clerk of the payee, who indorsed a transfer on-this and a similar note three months after their execution, testified that he saw no red ink erasures on either of them, and that he looked them over sufficiently so that he would have seen such an erasure. This testimony was direct, positive, and un-contradicted. Held, that it established the fact that the note was altered after delivery.</p> <p>'2. The exception to the rule that a note materially altered after delivery is wholly void, made by the Negotiable Instrument Law in favor of a holder in due course not connected with the alteration, is inapplicable where the transfer to such holder was made before such legislation took effect.</p> <p>:3. The erasure from a note, after its delivery, of words relieving the holder from the duty to give notice of his election that the principal become due upon default in interest, thus changing the legal rights of the parties, is a material alteration, even though such change is favorable to the maker.</p> <p>4. Where in an action to foreclose a mortgage it appears that the note secured thereby is void because altered after delivery, there- can be no personal judgment against the maker for the original consideration if the note was in fact executed by him merely as accommodation to the payee.</p>

<p>Appeal from a judgment o-f the circuit court for Milwaukee county: Waeeen D. Taeeant, Circuit Judge.</p> <p>Action brouglit by plaintiff to compel defendant to remove-obstructions from, and to restrain it from obstructing, an alleged alley adjacent to its property, lying in a subdivision of lots 3 and 5 of section 33, township 7 B., of range 22 E., being a part of the Fifth, ward of the city of Milwaukee, according to the plat of L. W. Weeks, recorded in the register of deeds’ office for Milwaukee county in July, 1846.</p> <p>It appears that plaintiff is the owner of lot 1 and other lots in block 70, and that the defendant is the owner of lot 7 of Hock 69 of this subdivision. It is undisputed that an alley twenty feet in width was platted between lot 1, block 70, and lot 7, block 69, extending eastward from the street on the west of these lots to the Milwaukee river, which bounds these lots on the east. On the west of these lots a street was platted, running north and south and connected with the alley. As to original monuments of the survey, the proof is that none have been found showing the location of the lots in blocks 69 and 70, of the alley in question, or of the street immediately in front of these blocks. The street line of block 69 makes an angle at some point on lot 5, but no definite monument has been found locating this point as surveyed and platted on this subdivision." The width of the street, as platted in front of the blocks in question, has also been uncertain, for want of any original monuments showing its boundary.</p> <p>The court found that plaintiff owned lots 1, 2, 3, 4, 5, and 6 in block 70, and that defendant owned lot 7 in Hock 69; that an alley was platted between these two Hocks, twenty feet, in width, and extending eastward from the street on the west-, of these blocks to the Milwaukee river; that the land covered! by these blocks, street, and alley were included in the plat of' L. W. Weeks, whereby he platted lots 3 and 5 in the town and; range above mentioned; that the street in front of blocks 69 and 7 0, running north and south, was laid out and platted as an eighty-foot wide street, and that it was so used and occupied as a street; that the north line of the alley between Hocks 69 and 70, at its intersection with the street in front of these blocks, is at a point 381.15 feet south of the north line of the street on the plat, named Elizabeth street, but spoken of as Uational avenue, and that this north line of the alley extends eastward from this point, at right angles with the street line, to the Milwaukee river; that the south line of the alley lies twenty feet south of the north line and is parallel thereto; that the city of Milwaukee thus located this alley in 1874 and constructed a sewer or drain on the alley so located at that time, and has occupied it with such sewer as and for an alley ever since; that the public has used the strip so located as an alley by the city as and for a public alley since 1874; that plaintiff and its grantors and the defendant’s grantors so used it in connection with the use and occupation of the abutting lots; that the street in front of plaintiff’s and defendant’s property was actually located, used, and occupied by the city of Milwaukee and by the public as and for a street eighty feet in width, and that the lots in block 69 and 70 abutting on this street were occupied and used with reference to said street as •an eiglity-foot wide street; and that defendant for several years prior to the time of the commencement of this action obstructed this alley by maintaining fences thereon, so as to inclose it with its lot 7 in block 69, and appropriated it to its own use, to the exclusion of plaintiff and the public. Plaintiff’s property, consisting of lot 1 and adjoining lots in block 70, is valuable as dock property abutting on the Milwaukee river, and the unobstructed use of the alley is necessary to the enjoyment of its property. Plaintiff’s property is specially damaged by defendant’s obstruction of the alley, and, if this obstruction of the alley is continued, it will cause plaintiff irreparable injury.</p> <p>Upon the above findings the court declared defendant’s ob•struction of the alley a public nuisance and a special injury to plaintiff, and awarded judgment for the abatement of the obstruction and the restoration of the alley to its original condition as a public alley, with nominal damages, and that defendant be perpetually enjoined from further obstructing the .alley. This is an appeal from such judgment.</p>

<p>Appeai, from a judgment of the circuit court for Milwaukee county: OkREN T. Willtaks, Circuit Judge.</p> <p>Action to recover for personal injuries. Plaintiff was injured while in the' employ of the defendant in its packing bouse in the city of Milwaukee, in what is known as the beef department, and while engaged in slaughtering beef. The negligence charged is defect in a large iron wheel 'and also defect in a -wooden wheel used in connection with the iron wheel in hoisting beef, in which business plaintiff was engaged. The case was three times tried at circuit upon the same complaint. On the first trial the jury found as part of the special verdict that the iron wheel was defective, or out of repair, immediately before the injury, and that the defendant knew, or o-ught to have known, of it, and that such defect was the proximate cause of the injury; and also found that the wooden friction wheel was defective, or out of repair, and that the defendant knew, or ought to have known, of such defect, and that such defect in said wheel was the proximate cause of the plaintiff’s injury; and found that the plaintiff sustained damage in the sum of $2,000. Judgment was rendered for plaintiff on the verdict, from which an appeal was taken to this court and judgment reversed. 118 -Wis. 47, 94 N. W. 654.</p> <p>The case was again tried in the court below, and the jury found a special verdict to the effect that the defect in the wooden wheel was not the proximate cause of the plaintiff’s injury, but that the crack in the iron wheel was the proximate cause of the plaintiff’s injury; that the defendant knew, or ought to have known, of such defect, and that the plaintiff did not know of such defect; that the plaintiff was not guilty of contributory negligence, and had sustained damage in the sum of $2,000. Plaintiff moved for judgment on this verdict, and defendant moved for a new trial. Plaintiff’s motion was denied and defendant’s granted, and a new trial ordered accordingly, and afterwards and in December, 1904, a third trial was 'had, which resulted in a verdict being directed for defendant and judgment entered thereon, from which this' appeal was taken. Appellant seeks to review tbe orders granting tbe new trial and denying plaintiff’s motion for judgment on second trial, as well as tbe orders directing verdict and denying motion for new trial at tbe conclusion of tbe third trial.</p>

C. Ludwig, Judge. Tbe plaintiffs are stonecutters at Montpelier, Vermont. Tbe defendant is a corporation engaged in manufacturing ■monuments in tbe city of Milwaukee. May 15, 1895, tbe defendant made a written contract with tbe executors of tbe estate of Valentine Blatz to furnish materials and erect a mausoleum in Forest Home cemetery ,at Milwaukee.

Taeeaht, Circuit Judge. Action for the construction of a will, which was in the words following: “(1) I, John L. Mitchell, of the City and County of Milwaukee and State of Wisconsin, being of sound mind and memory, dofmake, publish and declare this my last will and testament in manner following: “(2) I give, bequeath and devise to my beloved wife, Harriet D. Mitchell, as trustee, all the property, real and personal of which I shall die seized or possessed, with the exception…

Aepeal from a judgment of tbe circuit court for Milwaukee county: Laws®woe W. Halsey, Circuit Judge. Action commenced in justice’s court upon affidavit alleging that defendant bad' unjustly taken and unjustly detained a •certain borse of value of $100, to possession of wbicb plaintiff was entitled.

TIalsey, Circuit Judge. Plaintiff sued for the foreclosure of a mortgage upon the usual complaint in such actions, demanding judgment for the amount due, foreclosure of defendants’ interest in the mortgaged premises, and for personal judgment against the defendants. Proceedings were taken which resulted in the rendering of judgment by the circuit court on the 31st day of March, 1902.

Stitt. Olive A. Stitt (formerly Olive A. Blake), before ber marriage to Stitt, and one Kittie Blake made and delivered to appellant on tbe 12th day of September, 1885, a general power of attorney authorizing him to collect and enforce .against one Damon Ooates, of the city of New York, all claims and demands that they or either of them had, personally or individually, separately or jointly, against said Coates, as well as all other claims and demands that they or either of…

Tarrant, Circuit Judge. It appears from tbe record that May 10, 1904, Fred W. Pauli, as plaintiff, caused a summons to be issued by William A. Hart, a justice of tbe peace, against Max Numberg on a demand of $11.20, returnable May 18, 1904, at 9 o’clock a. m. at bis office.

<p> Joinder of causes of action: Personal injuries: Pain' and anguish: Subsequent death. </p> <p>A cause of action to recover for pain and anguish suffered hy plaintiff’s intestate as the result of personal injuries caused hy defendant’s negligence may he joined with a cause of action to recover the pecuniary loss to the parents of the intestate hy reason of his subsequent death resulting from such injuries.</p>

<p> Mortgages: Foreclosure: Rights of second, mortgagee who redeemed from tax sales: Judgment. </p> <p>A second mortgagee who redeemed the land from cax sales thereby acquired merely an addition to his mortgage lien; and in an action to foreclose the first mortgage, wherein it was alleged that his lien was subject to the lien of such first mortgage, the usual judgment'of foreclosure, to that effect, cut off his mortgage lien and the addition thereto as well.</p>

0. Ludwig, Judge. Action to recover on contract. The claim of the plaintiff was that the defendant owed him $39 for work and labor.. The claim of the defendant was that on the 1st day of November, 1903, he employed plaintiff to work for him for 'the period of one year from that date at a salary of $450; that plaintiff commenced work accordingly and September 2, 1904, without cause, abandoned defendant’s service and refused to complete the contract.

Appeals from orders of the superior court of Milwaukee county: J. C. Ludwig, Judge.

Halsey, Circuit Judge. This is an action for the foreclosure of a mortgage and the •sale of the premises for the payment of a balance of $1,090 •due on a note, with the interest thereon and the costs of this action, which at the time of the entry of judgment, November 26, 1904, aggregated the sum of $1,580.16.

J. Fruit, Circuit Judge. Plaintiff in error was convicted on tlie 27tb day of September, 1904, of tbe crime of burglary, alleged to bave been committed on tbe 26tb day of June, 1904, and sentenced to confinement in tbe state prison for tbe term of three years, and assigns the following errors-: First. There was adduced on ■ the trial of said action no evidence that tbe burglary therein charged was committed in the nighttime. Second.

EbboR to review a judgment of the municipal court for the eastern district of Waukesha county: D. S. Tttllar, Judge.

0. Ludwig, Judge. Action to recover compensation for damages claimed to have been caused to plaintiff by the unlawful grading of Bur-leigh street in the city of Milwaukee in front of its real estate.

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>Action of ejectment to recover 34.36 feet of land claimed by the appellant to be the northeast half of lot 43, and an adjoining 9.36 feet of lot 42, according to Hubbard & Pearson’s addition to Milwaukee. That addition was platted and surveyed as early as 1838, and the plat duly recorded. It does not appear that there is any ambiguity or uncei’tainty as to the interior portion of the plat, but the confusion, if any, ■exists in relation to the fringe of so-called “water lots,” lying between North Water street and Milwaukee river. A copy of the plat, so far as material, is attached. The surveyor declares the location of stone at the southeast corner of block 13 as the starting point from which other surveys are to be made. Such stone has never been found, but a new one has been located, the correctness of which is apparently not in dispute. There is no evidence that any of the original markings on the ground of the various water lots have ever been discovered, and there is no evidence of ancient occupation, by buildings or otherwise, earlier than about 1865 or 1866, although it does appear that there was travel from North Water street to the river, in or near the street lying immediately to the north of the terminus of Kinzie or Marshall street, on the plat, for some years prior to 1866. One main point of contention is the extent of frontage of water lot 46, the most southwesterly of the entire fringe of lots. On the original plat a narrow frontage is shown, which by scale measures about 5.83 feet, but no length in figures for that line is marked upon the original plat. In 187 6 the city engineer undertook to lo-</p> <p> </p> <p> </p> <p>cate on the ground these 'water lots and the intervening streets-to the river, and finding confusion seems to have practically disregarded all distances indicated on the original plat, and gave to the various lots and streets the dimensions marked in the figures below the lot lines in North Water street (the dimension figures above the lot lines being those of the original-plat). Upon such survey, and others, it is found that the distance from the northeast line of lot 46 to the point E exceeds-the total of the figures on the original plat by 37.96 feet, subject to the question whether the north end of Johnson (Astor)street should be sixty-six or sixty-two feet. If sixty-six feet-,, the surplusage would be four feet less. The 'defendants contend that these various lots and streets should be given the dimensions accorded them upon the original plat, and that the resulting surplusage of from thirty-five to forty feet should all be cast upon lot 46, whose frontage was left unmarked. The-trial court seems to have rejected this contention on the theory that there was apparent from the plat an intention that the ends of streets running at right angles from North Water street to the river were to correspond with the north and south streets in the body of the plat, and this result is nearly accomplished by the so-called city survey of 187 6, while some-measure of distortion would result from defendants’ contention. Hence he held as matter of law that the city survey was correct, which left all the lots southwest of the extension of Van Burén street to correspond with their dimensions upon the original plat, and left lot 46 with 5.83 feet frontage, and included the ground in' controversy within the plaintiff’s paper-title.</p> <p>Another ground of defense was estoppel of the plaintiff by judgment. It appeared that some time about 1882 the extension of Van Burén, or Henry, street was vacated, a fact which seems to have been entirely overlooked by the city, which in 1893 proceeded to build an elevated viaduct from the intersection of Van Burén and Brady streets across the. river, following nearly the center of the extension of that ■street northwest of Rorth Water street, according to the city survey. Thereupon the owners of lot 41 and, by virtue of the vacation, of the southwest half of Van Burén street commenced suit against the city for damages, in which they recovered upon a holding that the vacation of the street was valid and that they were the owners to the center of Van Burén street, and upon the further holding that the whole of the viaduct was within the limits of their title, and they were •adjudged damages for the taking of-the forty-six feet occupied hy the viaduct. The south line of the viaduct was 286.75 feet from the southwest corner of lot 46, marked on the accompanying plat as point A, and the viaduct forty-six feet wide. To connect plaintiff with this adjudication it was made to •appear that prior to said judgment the plaintiff, together with ■others, as trustees of the Shape estate, had obtained from defendants and their predecessors in title a mortgage upon lots 41 and 42, the northeast half of lot 43, and the one-half of the vacated street northeast of lot 41. During the litigation with the city the mortgage was foreclosed. After judgment of foreclosure, hut before sale, the mortgagees having demanded payment of the damages to them, and other claims being made, upon an application of the city all parties interested, including tírese defendants and this plaintiff and his issociate trustees, were interpleaded. The mortgagees set up their foreclosure judgment and demanded payment to them on the ground that their mortgage covered the premises upon which the viaduct was built. Before decision in that proceeding the foreclosure sale was held, and the property sold according to its lot descriptions as contained in the mortgage to this plaintiff, personally, in separate parcels, and he appeared in and became a party to the proceeding for the distribution -of damages. The court finally sustained the contention of the mortgagees, and found that the viaduct was entirely upon the mortgaged premises, and that the southerly line thereof was six feet southerly of the northerly line of lot 41, and accordingly the money, with certain deductions for expenses, was paid over to the mortgagees to apply on their deficiency judgment. The trial court in the present action held this created •no estoppel against the plaintiff, and directed verdict in his favor for the recovery of the possession of the premises described in the complaint as commencing 130.83 feet northeast of the stone monument at the southeast comer of lot 46, and extending northeasterly along FTorth Water street 34.36 feet, and running by perpendicular lines back to the river. Eroni this judgment the defendants appeal.</p>

<p>Ebeoe to review an order of the circuit court for Milwaukee county: Lawrehoe W. Halsey, Circuit Judge.</p> <p>On the 8th day of June, 190.5, plaintiff in error loaned one 'William Brouch and wife $100, payable in thirty days. Brouch and his wife gave their promissory. note for $103, and to secure its payment executed a chattel mortgage upon their household furniture, a horse, and two wagons. On June 19, 1905, they paid the note, and received a receipt for $100 principal, $1 interest, and $2 for commissions and examina-, tions. On June 30, 1905, on the complaint of Brouch under ch. 278, Laws of 1905, plaintiff in error was arrested charged with taking usurious interest on a chattel-mortgage loan. While detained by the sheriff awaiting trial he petitioned the circuit court for Milwaukee county for a writ of habeas corpus j alleging that his arrest and detention were unlawful, in that the law under which he was deprived of his liberty was. unconstitutional. The writ was issued, the prisoner produced, and tiie sheriff in his return to the writ pleaded the note, the chattel mortgage,’ the complaint, and the warrant, and alleged justification for the arrest upon these proceedings under ch. 278, Laws of 1906. The plaintiff in error admitted the facts, hut averred that the arrest and detention were unlawful because of the unconstitutionality of the law. Upon the hear-, ing the court upheld the constitutionality of the law and remanded the plaintiff in error to the custody of the sheriff. Plaintiff in error sued out this writ of error to the order of the circuit court remanding him to the custody of the sheriff.</p> <p>contended, inter alia, that the statute in question is unconstitutional in that it unlawfully deprives the citizen of his property and his liberty without due process of law, and in that it arbitrarily prohibits by criminal penalty the contracting in relation to his own property and his own services in matters wherein such prohibition is not justified by public necessity or the general welfare of the community. State v. Goodwill, 33 W. Va. 179; Braceville 0. Go. v. People, 147 Ill. 66; Ritchie v. People, 155 Ill. 98; Gillespie v. People, 188 Ill. 176; Mugler v. Kansas, 123 U. S. 623, 661; Laiuton v. Steele, 152 U. S. 133; People ex rel. Manhattan Sav. Inst. v. Otis, 90 FT. Y. 48; State v. Scougal, 3 S. Dak. 55, 51 FT. W. 858; Godcharles v. Wigeman, 113 Pa. St. 431; l.Kent, Comm. 450; In re Aubry, 36 Wash. 308, 78 Pac. 900; Bessette v. People, 193 Ill. 334; Gundling v. Chicago, 177 U. S. 183, 188; Lochner v. New Yorlc, 198 U. S. 45, 25 Sup. Ct. 539; State ex rel. Smith v. Board of Dental Examiners, 31 Wash. 492, 72 Pac. 110; People v. Beattie, 89 FT. Y. Supp. 193; Yich Wo v. Hoplcins, 118 U. S. 356, 6 Sup. Ct. 1064; Slaughter-House Gases, 16 Wall. 36; Butchers’ Union S. II. & L. S. L. Go. v. Orescent Giiy L. S. L. & S. II. Co. Ill U. S. 746. A number of interesting cases have lately arisen in regard to the constitutionality of statutes prohibiting the use of trading stamps, and the courts are uniform in holding against the validity of sncli statutes. State v. Dodge, 76 Vt. 197, 56 Atl. 983; Comm. v. Sisson, 178 Mass. 578; State v. Shugart, 138 Ala. 86; Winston v. Beeson, 135 1ST. 0. 271, 47 S. E. 457; Ex parte McKenna, 126 Cal. 429. See, also, Young v. Comm. 101 Va. 853, reported and commented upon in 2 Mich. Law Eev. 224, where a number of cases in point are cited.</p> <p>He argued, ámong other things, that many other states have made the taking of usury a criminal offense. Eor decisions under such statutes, see Memman v. State, 6 Blackf. 449; Crawford v. State, 2 Ind. 112; State v. Williams, 4 Ind. 234; Marble v. Slate, 13 Ind. 362; Swinney v. State, 14 Ind. 315; Bloch v. State, 1.4 Ind. 425; Comm. v. Frost, 5 Mass. 53; Comm. v. Morris, 176 Mass. 19; State v. Tappan, 15 H. H. 91; Henry v. Banh of Salina> 5 Hill, 523; Sumner v. People, 29 H. Y. 337; Slate v. Security Banh, 2 S. Dak. 538; State v. Mitchell, 2 Cold. 222; Murphy v. State, 3 Head, 249; MJAuly v. Slate, 7 Yerg. 526; Graham v. State, 5 Humph. 40; Gillespie v. State, 6 Humph. 164; $¿aíe v. First Nad. Battle2 S. Dak. 568, 51 1ST. W. 587; McBroom v. Scottish M. <& L. Into. Go. 153 U. S. 318.</p>

<p>Appbau from an order of the circuit court for Milwaukee •county: WaRRew D. TabbaNt, Circuit Judge.</p> <p>Action on contract. The complaint alleges, in effect, that on May 9, 1904, plaintiff leased to defendant a steam shovel with trucks and appliances for the purpose of digging a ditch across a cranberry marsh, and until said ditch should be completed, which time was estimated at from forty to sixty days; that said shovel was to be returned after sixty days upon ten days’ written demand by plaintiff; that by said agreement the shovel and appliances were to be shipped to defendant by plaintiff in good working order, the defendant agreeing to keep the same in good order and repair, and -replace all parts that might be broken prior to redelivery to plaintiff in as good condition as the same were at the time they were shipped, except ordinary wear, defendant paying freight and shipping •expenses both ways between Embarrass and Milwaukee; that defendant agreed to pay $25 per day of ten hours eacb for tbe nse of said sbovel, Sundays excepted, from tbe time tbe same arrived at Embarrass until delivered on cars there, consigned to plaintiff at Milwaukee, and, if tbe machine worked more than ten hours a day, $2.50 per hour was to be paid for such extra time; that defendant also agreed to engage tbe crew formerly hired by plaintiff to operate tbe sbovel at tbe same pay formerly received; that under this contract tbe sbovel and appliances were forthwith shipped to Embarrass, Wisconsin, and arrived there on tbe 17th day of May, 1904, and were set to work by defendant; that after being at work for a time, and without good reason, tbe defendant abandoned tbe work and returned tbe sbovel and appliances to Milwaukee on or about the 18th day of Tune, 1904, without the consent of tbe plaintiff; that said machinery was left by defendant on a side track in the city of Milwaukee, and plaintiff refusedffo accept the same; that it would have taken, in the ordinary course of work, more than sixty days to complete the ditch in question; that since the return of said machinery plaintiff has been unable to find employment therefor; that defendant has refused to pay, although payment was duly demanded; that when said machinery was returned to Milwaukee, it was found that a portion of the fittings, appliances, etc., had been removed and were missing; that said removed parts were reasonably worth $100, and the same have not been replaced or paid for by defendant. Judgment is demanded for $1,500 for the use of the shovel and appliances, and for the sum of $100 damages for the parts removed.</p> <p>Defendant answered admitting that he leased from plaintiff the shovel and appliances referred to in the complaint for fhe purpose of digging the ditch at Embarrass, but denies that they were leased for any fixed period of time; admits that the shovel and appliances were in good working order and were received by him at Embarrass, and alleges that on May 9, 1904, he entered into a written contract, by the terms of which, plaintiff agreed to lease to defendant the shovel and appliances in question; that defendant agreed to keep the same in good repair, and replace all broken parts prior to redelivery to plaintiff and pay the freight and shipping expenses, and pay plaintiff $25 a day for each day of ten hours, except Sundays, for the use of said shovel and appliances from the time the same arrived at Embarrass until redelivered on board cars there consigned to plaintiff at Milwaukee, and no other or further sum; that defendant.agreed to engage the crew of men hired by plaintiff to operate the shovel; that the shovel and appliances were received at Embarrass May 18, 1904, and used by defendant twenty-one days after the date of arrival, and there is due and owing from defendant under the contract the sum of $525 ; that on the 11th day of June, 1904, defendant returned and loaded on cars at Embarrass said shovel and appliances consigned to plaintiff at Milwaukee; that on the 15th day of June, 1904, defendant and plaintiff met for the purpose of adjusting and settling said matter, and that defendant then and there offered plaintiff the sum of $525 in full settlement of the indebtedness for the use of said shovel and appliances, and plaintiff then and there refused to accept the same; that defendant ever since has been and now is ready and willing to pay said sum and bring the money into court for the use of plaintiff and in discharge of the indebtedness incurred by said contract and the terms thereof; that defendant complied with all the terms and conditions of said contract, and owes plaintiff no further sum.</p> <p>On the pleadings plaintiff moved the court for an order directing defendant to settle that part of the plaintiff’s claim which was admitted by the answer, to wit, $525, and that he be required to pay interest on said sum from June 15, 1904, at six per cent. The motion was based upon the complaint, answer, and affidavit of Lyman G. Wheeler, one of plaintiff’s attorneys, which affidavit set up, in effect, that affiant was the attorney of plaintiff and made the affidavit on his behalf; that no money had been paid into court by defendant; and that the affidavit was made to be used upon the motion to require the payment to plaintiff of the sum admitted in the answer to be just. Upon this motion the court ordered that defendant forthwith satisfy that part of the plaintiff’s claim admitted by the answer to be. just, to wit, the sum of $525, and interest from Tune 15, 1904, at six per cent., to which order defendant excepted.</p>

<p>'(1) Pleading: Matter in abatement: Action by guardian.. (2-4) Conspiracy: When civil action lies: Alienation of husband’s affection, etc.: Criminal conspiracy.</p> <p>1. In an action by a general guardian in bis own name, tbe objection that the cause of action is one in favor of the ward alone goes only to the competency of the guardian to maintain the action and, being in abatement only, is not available after defendant bas pleaded in bar.</p> <p>2. A civil action may be maintained against conspirators for tbe damage resulting from tbeir acts done in pursuance of a criminal conspiracy, even tbougb it could not be maintained for tbe same acts done, without a conspiracy, by one person. Martens v. Reilly, 109 Wis. 464, explained.</p> <p>3. A conspiracy to prevent a wife from performing ber marital duties, from living witb ber husband, from receiving from him tbe support to which she is entitled, from obtaining a divorce in ber home jurisdiction which should fully protect ber rights, and, by reducing ber to penury, to compel ber to allow her bus-band to obtain a divorce upon false and fraudulent allegations-in a foreign jurisdiction, is a criminal conspiracy within sec. 4466a, Stats. 1898.</p> <p>4. The object sought by such conspiracy being unlawful and (under sec. 4587c, Stats. 1898) criminal, and tbe means employed being unlawful and (under sec. 4466a) criminal, a civil action may be maintained for tbe resulting damage, even though there might be no redress for the same injuries inflicted by a single person.</p>

<p>Appeal from an order of the circuit court for Winnebago county: Geo. W. BubNELL, Circuit Judge.</p> <p>Appeal from an order modifying a decree entered in the action October 17, 1903, respecting the care and custody of the minor children of the parties. There were two children— Otis, aged nine years, and Marian, seven years of age. Custody of both was by the decree unqualifiedly awarded to the plaintiff. Within one year thereafter defendant petitioned the court to so change the decree as to1 require the children to. reside with Mrs. N. G. Clifford, defendant’s mother, under such regulations as to accord each parent at all reasonable-times opportunity to visit and associate with them, and to-mate such other modification of the judgment in relation to the children as might seem equitable. The prayer of the petitioner was supported by sworn statements to this effect: Plaintiff was awarded the care and custody of the children-by reason of a stipulation made between the parties to the cause to the effect that the children should be kept at the home-of defendant’s mother, plaintiff paying $20 per month for their care and maintenance,'’ and each parent having the right to visit them at all reasonable times. Plaintiff has defaulted in that regard by failing to pay the sum of $30 of the agreed monthly instalments. He has further failed, in that August 13, 1904, he visited Mrs. Clifford’s home while under the influence of liquor and forcibly took therefrom the younger child, conveying her to the home of his mother, and thereafter refused defendant permission to see such child. A few days after such taking he commenced judicial proceedings against Mrs. Clifford to obtain possession of the-other child. He is insolvent and customarily squanders the greater part of" his-earnings in dissipation. Mrs. Clifford is a suitable person to bring up the children. She has had their exclusive care since their birth. She has acquired a home in a good neighborhood in the city of Oshkosh for the express purpose of providing a suitable residence for herself and the children. Defendant earns her own living. She is a professional singer and makes her home with her mother when not necessarily out of the city of Oshkosh on professional engagements. She has since the entry of the judgment of divorce, in the main,, clothed the children.</p> <p>Such proceedings were had in respect to the petition that an order was entered reciting that it was granted on the record and files in the case, the petition, and the defendant’s affidavit-Tbe affidavit does not add anything to tbe facts set forth in the petition. The certificate of the clerk of the circuit court attached to the return to this court states that such return contains “the original records necessary to the appeal pursuant ■to Rule VII-J filed and of record in my office in the above entitled cause.” The order recites that at the time the judgment of divorce was entered, plaintiff was given the care and •custody of the children because of an agreement between the parties that they were to- be left at the home of Mrs. N. G-. Clifford, their grandmother, and under her care for the present, who had cared for them and nursed them from birth, and that plaintiff, would pay $20 per month for their support, both plaintiff and defendant to have the right at all reasonable times to see and visit them; that a provision to that effect was omitted from the judgment because at the time of •its entry the children were residing with Mrs. Clifford under an arrangement between her and the plaintiff; that the welfare of the children will be best promoted by said arrangement being carried out. Eor those reasons the court ordered as follows:</p> <p>“That the judgment made herein on the 17th day of October, A. D. 1903, be and.the same is hereby modified and revised as follows:</p> <p>“First, that the legal care and custody of said minor children, Otis McCabe and Marian McCabe, remain and continue with the plaintiff Carl B. McCabe, always provided that the said plaintiff shall keep both at the home of Mrs. N. G-. •Clifford in the city of Oshkosh, Wisconsin, where they have •been kept and eared for since their birth, for the time being and until the further order of the court.</p> <p>“Second, that beginning September 1, 1904, the plaintiff and defendant pay the sum of $20 monthly for the support and maintenance of said children, each paying one half of said sum, to be paid on or before the 10th day of each month to the said Mrs. N. G. Clifford.</p> <p>“Third, that both the plaintiff and defendant be and hereby nre permitted to see and visit said children at all reasonable times, take' them out on suitable occasions, and said children shall be permitted and allowed to visit plaintiff on Sundays and holidays, at such suitable and proper places as he may designate, and at such other reasonable times as plaintiff may require. Such visits are not to interfere, however, with the school work of either of said children.”</p> <p>The plaintiff appeals from such order.</p>

<p>Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BubNell, Oireu.it Judge.</p> <p>Action by widow, as administratrix, to recover ber damages resulting from death of her husband, Austin ITorr, by reason of negligence of defendant, leaving her two infants dependent on her own labor. Deceased, twenty-one years old, was at work in February, 1904, .in attendance upon defendant’s three digesters in.its sulphite mill. The digester is an iron or steel tank, six and one-half feet in diameter by thirty-four feet high, its base being upon the ground floor and its top extending about eighteen inches above the floor of the third story. The tank having been filled with water, acid, and gTOund wood, steam is turned on under a pressure of approximately eighty-five pounds to the square inch, and so continues until the wood pulp, by action of heat and acid, is “cooked.” Thereupon the incoming steam is shut off by a valve operated by a shaft which extended into the third story. That function pertained to the deceased. Thereupon, by similar valve operated by a shaft extending into the second story, the blowpipe, extending from the bottom of the tank to a large wooden tank, is opened and, by the pressure of steam within the tank, the contents are driven through this blowpipe into the blowpit or tank, whence it is removed as needed for drying and rolling into paper. The blow-off pipe upon the digester in question started from near its bottom, the first section of about threo feet in length comprising the valve before spoken of, then a section of pipe, bent somewhat upward, eight feet six inches, in length, and then a third section, three or four feet long, bending again toward the horizontal and passing through a ten-inch timber wall and extending into the blowpit about twelve inches. The sections of pipe were joined together by bolted flanges. Such pipe was cast iron, about ten inches exterior diameter and eight inches interior when new, so that the walls were about one inch thick. The weight of the three sections of pipe is not given, but the -middle eight-foot section weighed about 800 pounds and, inferably, the whole about 1,500 pounds, supported at one end by bolting to the flange of tbe digester, and on tbe other end merely by tbe passage of tbe third section, called tbe “nozzle,” through the wall of tbe blowpit.</p> <p>Each digester was blown off from two to four times per day. The rush of tbe woody pulp under high pressure, and accompanied by acid-bearing fluid, bad a wearing effect upon the blow-off pipe, so that the life of such pipes was approximately a year. There was evidence tending to prove that about four weeks before tbe accident the second section of this blow-off pipe had been replaced by a new one, and that at the same time the nozzle, or third section, was found to be worn quite thin, especially at the point on its upper circumference where it bad a bend toward the horizontal. A witness declared that in places it was no more than a quarter of an inch in thickness, while a witness for the defendant testified that at no point was it less than five eighths of an inch thick. There was also evidence tending to prove that for some two weeks before the accident there had been an unusually violent vibration or jar about this pipe, such, indeed, as to shake the whole building, and that upon the morning before the accident extraordinary escape of steam and of the pulp was observed, and that all of these things — the thinness of the nozzle, the extreme agitation of the apparatus, and the leaky condition of the pipe — were called to the attention of tbe superintendent of tbe mill.</p> <p>In the forenoon of February 25, 1904, deceased was notified by the operator of an intention to blow off, and, according to his duty and custom, went to the valve shaft in the third floor and turned off the incoming steam and thereupon went •■to a north window open at the top. Thereupon another employee, whose duty it was, went to the valve shaft in the sec•ond floor and opened it for the blow off, whereupon an explosion took place, described by one of the witnesses as very ^violent. Almost momentarily hot steam rushed from the first 'to the third floor, scalding deceased so that he died a couple of days afterwards. After tbe accident tbe blowpipe was found broken in two places, namely, in tbe nozzle piece, near tbe point where it passed through tbe wall of tbe blowpit, approximately at the bend in that pipe above referred to; ■also in tbe second section, about a foot from where it was •flanged onto tbe valve piece. Evidence was offered of tbe extent of pressure to which tbe blow-off pipe was subjected whenever tbe pulp was blown through it, of tbe likelihood of its breaking from excessive vibration, and also from thinness of its walls. Defendant’s superintendent testified to standing within five feet, and to seeing the break occur in the second ■section, and that none occurred in the nozzle until it had pulled out of the'hole in the blowpit wall and fallen over against the iron supports of the digester.</p> <p>The jury found by a special verdict (1) that the breaking was not a mere accident; (2) that the blowpipe was defective and unfit for the purpose; (3) that such defect was the proximate cause of the injury to the decedent; (4) that defendant’s superintendent knew of such defect in time to have prevented the accident; (5) that he ought, in the exercise of ordinary care, to have so known; (0) that no negligence of deceased contributed to the injury; and (7) damages $2,500. The defendant moved for a nonsuit and direction of a verdict for itself, and, after verdict, moved to reverse the answers to questions 1, 2, 4, 5, and 6, and to order judgment for the defendant ; also-, if that be refused, that the verdict be set aside and a new trial granted by reason of various errors and for want of evidence to support the verdict. All of these motions were denied, and exceptions duly -reserved, whereupon judgment was entered for the plaintiff, from which the defendant ■appeals.</p>

<p>Appeal from a judgment of the circuit court for Green Lake county: Geo. W. BubNell, Circuit Judge.</p> <p>Appellant is the owner and in possession' of forty acres of land in section 4, town of Brooklyn, Green Lake county. East •of bis farm lies the Berlin and Dartford road, a highway of the town extending north and south, which was laid out in 1847. Appellant’s house and barn are ten or fifteen rods west •of the highway, the house being twelve or fifteen rods north of the barn. Extending in a northwesterly direction from the highway and between the house and the barn is a channel or cut in the ground, variously designated by the witnesses as a “swale,” “gully,” “ravine,” or “ditch.” In front of appellant’s farm the surface of the ground slopes generally towards the north, with somewhat of an inclination towards the west. In a state of nature the surface of from 75 to 100 acres of land converges to a natural depression, in which the channel above mentioned lies, and the surface water from this territory naturally takes its course through this depression. No •ditches were at first constructed along the sides of the road, but in turnpiking the road for a track such ditches were constructed on both sides. The water from the east side of the road passed over to the ditch on the west side of the road through a culvert under the road at a point about three rods south of the depression, and the united waters passed away over appellant’s land through this depression between the house and the bam. The ditch or gully in this depression was cut after the ditches were dug along the road. In 1867 Mr. Bushce, a previous owner of the land, stopped the opening from the road onto the land, and forced the water to find a passage along the road towards the north. The road was thereby injured, and the town board ordered the road overseer to have the dam removed. Shortly thereafter the dam was removed, and the waters had free passage through the ■ditch over appellant’s farm until a few years ago, when he constructed a wall across the opening from the ditch beside the road. This wall at first had an opening for the passage of the water, but the opening was finally closed by appellant in May, 1903. This action was brought to collect a forfeiture for stopping up a town ditch. The cause was tried without a jury, and the court made its findings of fact and conclusions; of law against appellant, and ordered judgment against him>. for $16 as a forfeiture, and for costs, and, if the sum was not paid, ordered appellant committed to jail. This is an appeal; from such judgment.</p>

<p> <Ohange of venue: Power of Winnebago county court: Withdrawal of motion: Appealable orders. </p> <p>1. Upon an application under sec. 2622, Stats. 1898, for change of venue on the ground that the convenience of witnesses and the ends of justice would be promoted thereby, the county court of Winnebago county has power to send the case, to another county, and a denial of such a motion on the ground of want of power is error. Ch. 20, Laws of 1889, applies only to a change of venue on account of prejudice or other disqualification of the judge of said court.</p> <p>2. After denial of such a motion on the ground that the court had no power to send the case out of Winnebago county, defendant objected to proceeding to trial because the court had improperly denied the motion and had declined to pass upon the merits of the application. The court then stated that it had decided the motion on one ground and had not been asked to decide it on the merits, but would do so if requested. Defendant’s objection was overruled and the trial proceeded, the order denying the motion on the ground of want of power being permitted to stand. Held, that this did not show a withdrawal of the motion.</p> <p>S. An order denying a change of venue is not appealable, but is reviewable on appeal from the judgment.</p>

W. Buketell,'Circuit Judge. This action was commenced March 29, 1904, to recover damages for the conversion of certain personal property of the alleged value of $300. The defendant answered by way of admissions, denials, and counter allegations. April 20, 1904, the defendant, by his attorneys, served upon the plaintiff’s attorneys an offer in writing to allow judgment to be taken against him in this action for the sum of $15, with costs.

W. Buenell, Circuit Judge. The plaintiff is a railroad corporation operating an electric interurban railway between the cities of Oshkosh and Fond du Lae, and the defendant is a street railway corporation operating an electric street railway system in the city of Oshkosh.

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. BuRMEll, Circuit Judge.</p> <p>Action to recover a commission for the sale of real estate-alleged to have been earned by plaintiff.</p> <p>Plaintiff claimed that in October, 1899, defendant, who-was then the owner of a farm consisting of the- northeast one-quarter of section Uo. 14, township Uo. 18 north, of range 15 east, in Winnebago county, Wisconsin, except one and one-half acres in the southeast corner thereof, and also the owner of certain farm machinery, live stock, and other personal property for use and in úse on such farm, promised plaintiff' that in case of his producing a person willing and able to purchase such property he should have for his services all obtainable over $8,000 for the land, and all over $9,000 obtainable for the entire property, she to pay him such excess whenever he should produce a purchaser ready, willing, and able to take-the property at any sum in excess of the stipulated net price; that April 18, 1902, he produced Gustave Pansie, a proposed purchaser, who was willing and able and who offered and' agreed to pay $11,095 for the real estate, and requested defendant to make a deed accordingly, which she refused to do. Plaintiff prayed for judgment in the sum of $3,095 and costs..</p> <p>The defendant answered admitting that plaintiff was appointed agent to sell the farm mentioned for $9,000, his compensation in case of a sale to be such sum as he might obtain-therefor in excess of that sum. She further answering put in-issue plaintiff’s allegations as to his obtaining a purchaser for the property ready, willing, and able to take the same upon any terms acceptable to her, or which she had at any time stated to him she would accept, and alleged that April 8, 1902,. she terminated the agency by notifying plaintiff of the revocation of his authority. At the close of plaintiff’s evidence the court directed a verdict in favor of the defendant and judgment was rendered accordingly. The plaintiff appeals.</p>

<p>Appeal from an order of the circuit court for Winnebago county: Geo. W. Bubuell, Circuit Judge.</p> <p>Appeal from order overruling demurrer to a complaint for partition, alleging that plaintiffs and the defendant A. H. Hin-. mam are tenants in common of about 320 acres of land in "Winnebago county, descended to them from Lorenzo Hinman, who died intestate September 16, 1896, two of the plaintiffs being the children and heirs at law of one of the sons of said decedent, their father having died intestate in Oklahoma Territory since said Lorenzo; that the defendant Marion A. Hinman is the widow of said Lorenzo and entitled to right of-homestead in said premises; that no other premises in the state are owned, jointly or in common, by the parties hereto; and that no other person has any estate or interest in said premises. The prayer is for partition, ascertainment of the homestead and dower rights of Marion A. Hinman and of the plaintiff Virginia Hinman, mother of the other plaintiffs; also for sale, if partition be not possible, and for an accounting of the rents, issues, and profits received by the defendants since the death of Lorenzo Hinman. The demurrer was upon the grounds (1) that the court had no jurisdiction, and (2) that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>They contended, inter alia, that a petition for the partition of lands is prematurely brought when they belong to the estate of a deceased person and it does not appear that the settlement of the estate has been closed and the administration account settled. Beecher v. Beecher, 43 Conn. 556, 560; Freeman, Cotenancy & Partition, § 454; Hubbard v. Bicart, 3 Vt. 207, 23 Am. Deo. 198, 200, note.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. BtjRwell, Circuit Judge.</p> <p>This action was brought by Peter J. Zentner, as administrator, to recover damages for the death of one Louis Zentner, alleged to have been killed through the negligence of the defendant while in its employ as a lineman on the 13th day of' Eebruary, 1904. The answer denies the material allegations-of the complaint, and alleges contributory negligence on tbe part of plaintiff's decedent. After tbe introduction of plaintiff's evidence tbe court, on motion of defendant, granted a nonsuit, and judgment was entered tbereon, from wbicb tbis appeal was taken.</p> <p>There is testimony tending to sbow tbat plaintiff’s decedent was, at tbe time of bis death, nineteen years of age and bad worked as a lineman for defendant six or seven months; tbat before tbis he bad worked for a telephone company and also a gaslight company, but bad never done any high potential work before be worked for defendant; tbat be never had any schooling or special instruction in electrical work, and never liad been away from home where electrical engineering of any kind was taught; tbat about February 10, 1904, there was a severe fire in the city of Oshkosh; tbat a line of wires and poles of defendant in the rear of the burned buildings was badly damaged by such fire; tbat one of these poles, tbe one upon which decedent was killed, was badly scorched and burned, the upper end being entirely destroyed and tbe attachments badly damaged; tbat tbe pole, wires, and cross-arms in question during tbe fire became coated with ice occasioned by water thrown by-the fire department, and tbis condition continued until the time of tbe accident; tbat tbe wires on the pole were three secondary wires belonging to* defendant, and next above these four primary wires supported by cross-arms, two on each side of the pole; that prior to the fire there bad been above these wires of defendant two cross-arms supporting electric wires of another company, and above these •other arms supporting telephone and fire-alarm wires; that all wires except those of defendant were removed the day after the fire; that the insulation was burned off the wires- for ■a distance of fifty feet on each side of the pole in question, and the pole was charred down to within six or eight feet of the ground, and from there it was wrapped with wire; that this pole was hollow at the butt, running up fifteen or eighteen feet; that this hollow and rotten condition would tend to make it a better conductor when wet; that a pole is a good insulation to work on wires if dry, hut if wet there is no reason why it would not carry the current from the wire to the body, into the pole and to the ground; that the body would form a connection between the two wires if touched, so as to pass the current from one to the other; that decedent went to work on the morning of the accident under the direction of defendant to make the repairs in the vicinity of this pole,'and returned about one o’clock in the afternoon and went to work on the pole in question, and was killed about an hour later; that he had placed one or two new cross-arms on the north side of the pole, one in the primary wires.which carried 2200 volts, and which is a dangerous voltage, leaving two old cross-arms on the opposite side; that while at work and standing with one foot on the secondary cross-arm, the other in a hook or climber struck into the pole and fastened to- his boot, with a safety belt around his body and the pole bringing the primary wires even with his hips, he was discovered burning on the wires, death following immediately; that the body was hanging over towards the two wires on the west side of the pole, his right hand or arm lying on the insulator of the outside wire, burned off at the wrist where it touched the wire, and the left hand appeared to have grasped the wire next to the pole, and was partially burned off; that the wires on the west side of the pole were on the cross-arm; that those nearest the pole had been untied from the insulator and had dropped down upon the cross-arm; that the outside wire was still tied to the insulator ; that the customary method in making repairs is to shut off the current, and it is not customary for companies to make such repairs with the current on.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. Burnell, Circuit Judge.</p> <p>An instrument purporting to be tbe last will and testament of Lucy A. Smith, deceased, was admitted to probate in tbe county court of Winnebago county, and upon appeal to tbe circuit court tbe decision was affirmed. Tbe objections to tbe admission of tbe will to probate are, in effect, that Lucy A. Smith, at tbe time of her- death, was a resident of Eond du Lac county, and died in tbe city of, Eond du Lac May 25, 1904; that the will was conditioned and contingent upon the-death of said Lucy A. Smith on her journey from California;- and that she did not die on such journey. Tbe will is holograph, and was executed at Los Angeles, California, April 18,. 1904. Marcia Wells, a sister, was given $500 and the life insurance, out of which she was directed to pay the funeral expenses. Molly Freeman and Alice Evans, sisters of deceased, were each given $100, and the household goods divided among-relatives. Bequest was also made for a monument not to ex•ceed in cost $200. Mildred Ghase was named as residuary legatee. The will recited: “This will is made in case I die •on my journey home from California.” Mayhew Mott, of Neenah, Wisconsin, is named as executor.</p> <p>The circuit court found the following facts:</p> <p>“(5) That prior to the year 1881 the said Lucy A. Smith resided at the city of Neenah in. her own homestead, which she retained, resided in, and rented until some time in September, A. I). 1902; that from the year 1881 to about the 1st ■day of April, 1902, the said Lucy A. Smith resided at the city ■of Appleton with her son, Leonard Smith. (6) That on or about the last day of April, 1902, she abandoned her residence at Appleton aforesaid, and, sending’ some of her household furniture to her brother, Samuel Wells, at the city of Fond du Lae, Wisconsin, went to and remained at the city of Neenah until about the 1st day of June, 1902, inquiring for rooms, and with the intention to malee her permanent domicile at said city of Neenah as soon as a suitable home for her ■could be secured. (7) That, failing for the time to find such home at Neenah, Wisconsin, she, on or about the 1st day of June, 1902, occupied a room in the house of her said brother, Samuel Wells; but such was temporary and without intention to make her legal domicile at the said city of Fond du Lac. (8) That át no time did she occupy a room or reside at Fond du. Lac with intention to make her permanent home there. (9) That nearly half of the time after leaving the city of Appleton and before going to California, in the year 1903, was spent by her in said city of Neenah, residing with her relatives and inquiring for . a suitable place of permanent residence. (10) That her husband, her son, and other of her relatives, with herself, are buried at the city of Neenah in the family burial lot. (11) That she became a member of the Union Baptist Church of said city of Neenah and so remained until her death. (12) That all of her statements, oral and in writing, show an intention on her part to make her home at Neenah, Wisconsin, and not at Fond du Lac, Wisconsin.”</p> <p>The appellant assigns as error the admission of improper ■evidence, admission of the testimony of Mary Wells and May Freeman taken on former trial, the finding to the effect that the legal residence and domicile of deceased at tlie time of' her death was Neenah, and in affirming the judgment of the county court and admitting the will to probate.</p> <p>They contended, inter alia, that,, in determining whether Mrs. Smith changed her residence to Neenah, the test is to inquire whether she did in fact remove her home to the latter place. Mere intention, without actual removal of location, is wholly insufficient. Frame v. Thor-mann, 102 Wis. 653; Kempster v. Milwaukee, 97 Wis. 343,. 347; Garter v. Sommermeyer, 27 Wis. 665 ; Hall v. Hail, 25. Wis. 600, 607. -When a person’s acts and declarations conflict, less weight should be given to his declarations than to his acts. 10 Am. & Eng. Ency. of Law (2d ed.) 28. And conflicting declarations are of little importance. . Id.; Smith v. Groom, 7 Ela. 81.</p> <p>argued, among other things, that by no reasonable construction can this will under-discussion be construed as one which would become inoperative by any condition as to time or place of the death of the testatrix. The tendency of the later and better considered cases is to construe the language, if possible, as merely setting forth the circumstances which induced the testator to 'make a testamentary provision, rather than as creating a condition upon which alone it is to become operative. 29 Am. & Eng. Ency. of Law (1st ed.) 132; Strauss v. Schmidt, 3. Phillim. 209; Ex parte Lindsay, 2 Bradf. 204; French v.. French, 14 W. Va. 458; Kelleher v. Kernan, 60 Md. 440. Wills containing the following expressions have been declared valid, and have been upheld even though testator lived until after the event mentioned: “Being about to take a long journey, and knowing the uncertainty of life.” Tarver v. Tarver, 9 Pet. 174; Damon v. Damon, 8 Allen, 192. “To provide for possible contingencies.” Kelleher v. Kernan, 60 Md. 440,. •445, 446. “According to my present intention, should anything happen to me before I reach my friends in St. Louis.” Ex parte Lindsay, 2 Bradf. 204; Thompson v. Connor, 3 Bradf. 366. “In case of my death on the'way.” In re Mayd, L. R. 6 Prob. Div. 17. “In the event of my death while serving in this horrid climate.” In re Thorne, 4 Sw. & T. 36, 11 ■Lur. n. s. 569. “Being physically weak in health, have obtained permission to cease from all duty for a few days . . . and in the event of my death occurring during such time I hereby will and bequeath.” In re Martin, L. R. 1 Prob. & Div. 380. “In case of any fatal accident happening to me, being about to travel by railway.” In re Dobson, L. R. 1 Prob. & Div. 88; In re Martin, supra. In French v. French, 14 W. Va. 458, where the expression was, “Let all men know hereby, if I get drowned this morning, March 7, 1872, that I bequeath,” etc., and testator lived and afterwards died under different circumstances, it was held to be a valid will at the time of his death.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: Michael KiewaN, Circuit Judge.</p> <p>This action was commenced April 28, 1902, to dissolve an alleged copartnership in a house and lot described and for an accounting. Issue being joined and trial had, the court found as matters of fact, in effect: (1) That April 25, 1900, the defendant requested the plaintiff to become jointly interested in the purchase of the premises described; that it was orally agreed that he should do so; that by the terms of the agreement they were to own, handle, manage, care 'for, rent, repair, and sell the premises as copartners, each paying one half of the purchase price and all necessary expenses, including insurance and taxes; that the net profits arising therefrom and from the sale thereof should be divided equally between them; that the defendant should advance the whole of the agreed purchase price of $300, and that the plaintiff should repay to him one half thereof with interest at six per cent., and that the title should be taken in the name of the defendant ; that when the plaintiff should fully pay his share of the purchase price, then the defendant was to convey to him an equal undivided one-half thereof. (2) That in accordance with such agreement the defendant purchased said real estate and took the title in his own name, with the agreement that he would so convey the equal undivided one-half upon receiving the $150 and interest. (3) That immediately after the purchase they entered into possession and retained the same until December 12, 1901; that during such time numerous repairs and- improvements were made upon the same; that during that time the plaintiff, in addition to his personal services, paid, laid out, and expended for repairs and improvements, insurance, and taxes $40.66, and the defendant expended for similar purposes, exclusive of bis personal' services, $50.58. (4) That all rents, profits, and income from said premises were paid to the defendant, who accounted therefor to the plaintiff, and paid him one half thereof, except $5.33, which sum is charged to defendant in this accounting. (5) That about June, 1901, the plaintiff paid the defendant $9 interest for one year on the $150, and January 22, 1902, the plaintiff tendered to the defendant $157.50, being the full amount due to the defendant for the one-half interest in the premises. (6) That December 12, 1901, the defendant sold and conveyed the premises to his sister-for $375, secretly, and without consulting the plaintiff. (7) That before bringing this action the plaintiff demanded of the defendant a settlement of said partnership affairs, but the defendant refused to do so and denied the existence of any partnership agreement, and claimed that he had the title to the premises and should hold what the law gave him; that the defendant recognized and performed such copartnership agreement until shortly before his conveyance to his sister. (8) That December 12, 1901, the value of the premises was $500. (9) That there was no special agreement that either party should be compensated for his personal services so rendered, and there are no special circumstances from which such agreement can be implied. (10 ) That the defendant should be charged with the value of such real estate, $500, also with the sum of $5.33 rent received by him and not accounted for, and the defendant should be credited with $50.58 and the amount of the plaintiff’s debt to him, $157.50, and one half the net assets, $207.05, and the plaintiff is entitled to recover from the defendant the sum of $90.20 with costs. And as conclusions of law the court found, in effect, that the plaintiff is entitled to judgment dissolving' the partnership; that the plaintiff recover from the defendant $90.20 due the plaintiff upon the adjustment of the copartnership account, and that the plaintiff recover his costs and disbursements in the action. From the judgment entered thereon accordingly the defendant appeals. The findings in so far as they found or pertain to a partnership in said real estate are severally excepted to, and by agreement the evidence as to such matters was taken subject to objection.</p>

<p>Appeal from a judgment of tbe circuit court for Fond du Lao county: Michael ElrwaN, Circuit Judge.</p> <p>Plaintiff, administrator of tbe estate of Patrick Madden, deceased, presented to the county court of Fond du Lac county, wbicb bad jurisdiction of tbe matter, bis final account, claiming a balance from tbe estate of $1,192.60. Sucb proceedings were duly bad in respect thereto that items aggregating $123.40 were allowed, against wbicb there were charged estate credits of $54, leaving a balance for tbe administrator of $69.40. From that an appeal was taken by him to the circuit court. A trial was duly bad there resulting in items of tbe account aggregating $666.37 being allowed, against wbicb tbe estate was credited with $79.73, leaving a balance due tbe administrator of $586.61. Tbe residue of tbe account, being items aggregating $545.90, was disallowed. Judgment was rendered accordingly, without ■costs to either party, from which this appeal was taken by George Hobbs as a party aggrieved by reason of his being owner of real estate against which the sum awarded the administrator was made a lien.</p> <p>The facts of the case, as indicated by the findings, are these:</p> <p>Patrick Madden died testate May 9, 1892. He left no personalty for the payment of his debts and the expenses of the administration of his estate. He left real estate consisting ■of a homestead valued at $1,675, which he willed to his wife for life, remainder over, one. half to his son Phillip Madden, subject to a legacy of $100 for his daughter Elizabeth and a legacy of $5 for his son Andrew, and one half to Mary Ann Brown, subject to his debts and expenses of administration. No executor was named. The will was admitted to probate April 10, 1893, respondent being appointed administrator with the will annexed July 17th thereafter. One beneficiary opposed the probate, resulting in a contest in county court lasting two days, attorneys Duffy & McOrory appearing for the proponent Andrew Madden. The widow appealed from the decision rendered. Attorneys Duffy & McOrory represented the proponent in that matter, which was dismissed in the circuit court without a hearing and before the administrator was appointed. In September, 1893, thereafter the widow commenced an action in circuit court to set aside the ■deed of the real estate, claiming that it should have been made to her instead of her husband.. That action was dismissed without a trial. While the appeal in the will contest was pending an action was commenced to foreclose a mortgage on the real estate of $200 given by the testator to one Barnes. Attorneys Duffy & McOrory represented the defendants, consisting of the beneficiaries under the will. Mr. McOrory made a loan to tbe parties interested of $350 to pay tbe mortgage-debt and costs of foreclosure and $25 to Duffy & McCrory for services rendered defendants, and $15 on account of service® in tbe will contest. He took security on tbe real estate in tbe name of Mr. Brennan, a clerk in Duffy & McCrory’s office. •</p> <p>On July 3, 1896, tbe administrator filed in tbe county court an account of bis transactions in respect to tbe estate up to that time, claiming credits to tbe amount of $217.15 and a balance due bim of $163.05. In October, 1897, tbe beneficiaries named in tbe will mortgaged tbe property to appellant George Ilobbs for $1,000, and on January 19tb thereafter they sold tbe same subject to such mortgage to William McCullough, tbe consideration named in tbe conveyance being-$1,960. January 25th thereafter a bearing on claims was concluded, resulting in claims being allowed against tbe estate to tbe extent of $42.50. Tbe balance due tbe administrator, according to bis account filed as aforesaid, of $163.05 was illegitimate as more particularly stated hereafter, except' as to items aggregating $42.15. On tbe 23d day of May, 1898, tbe total amount of indebtedness was tbe aforesaid $42.15 due tbe administrator and $42.50 on allowed claims. At that time upon a contest, of which tbe appellant and tbe then bolder of tbe legal title to tbe real estate and tbe mortgagee bad no personal notice and in which they did not participate, an order was granted by tbe county court, in due form, authorizing tbe sale of tbe one-half interest in such real estate willed to Mary Ann Brown, for tbe payment of' such allowed claims. Tbe administrator’s petition for a sale for tbe purposes of paying tbe expenses of administration as well was denied. He appealed to tbe circuit court. Before-tbe appeal was beard in such court such allowed claims were paid by Phillip Madden. Tbe legacies to Elizabeth Coleman and Andrew Madden were paid before tbe application for leave to sell tbe real estate was made. Tbe administrator was defeated upon tbe bearing of tbe appeal in tbe circuit court, a judgment being rendered against Mm November 16, 1898, from wbicb be appealed to this court, which September 25, 1899, rendered a decision, reported in 104 Wis. 61, 80 N. W. 100, holding that by the terms of the will the debts of the testator and the expenses of administration were a lien upon the interest in the real estate willed to Mary Ann Brown. June 16,1900, pursuant to the mandate of this court a license was granted for the sale of such interest.</p> <p>About this time appellant began an action to foreclose his mortgage, making the administrator a party and obtaining a temporary injunction against the execution of the license. The injunction was dissolved and the action dismissed as to the administrator in November, 1900. May 23, 1901, an application for an extension of the license to June 16, 1902, was made. In the meantime appellant obtained a judgment in his foreclosure action. The execution thereof was stayed June 21, 1901, for sixty days. The application for extension was denied because not made within one year after the entry of the order in circuit court pursuant to the mandate of this court. The administrator appealed and was defeated in circuit court because the true date of the order sought to be modified was that of the original order, May 18, 1898, and more than two years having elapsed thereafter the court was powerless to grant the application. He then appealed to this court and the judgment was affirmed on the ground that he had been guilty of laches, — prolonging the administration beyond the six years limited therefor by the policy of the statute, and, therefore, that the court should have refused upon that ground to do more than to settle his account and assign the estate, subject to a charge upon the Mary Ann Brown interest therein for the amount due the administrator. In all of the various proceedings in which the administrator was a party Duffy & MeCrory were his attorneys.</p> <p>The decision of this court last mentioned was rendered February 3, 1903. May 26, 1903, the administrator filed his account with a petition for its allowance and for the assignment of the estate as suggested in the opinion of this court. The account consisted of the balance claimed in the account filed in 189 6, various items for attorney’s services in the litigation to secure the sale of the real estate, aggregating $650; $60 paid to the widow and $111.31 for printer’s fees, clerk’s fees, traveling expenses of attorneys, etc., the same being, in the main, costs of efforts to obtain a sale of the real estate; $75 attorney’s services in the Hobbs foreclosure case; $15 for personal services of the administrator; and $222.92 for four judgments for costs, all aggregating $1,297.26. The first judgment was in respondent’s favor on the first appeal to this court. The second for $56.69, costs in the circuit court, judgment being rendered pursuant to the mandate of this •court. The third for $57 was costs against respondent in this •court on the second appeal. The fourth, $44.80, was a judgment for costs against the administrator in the circuit court in favor of McCullough. The allowance of the account was •opposed by the appellant Hobbs, as owner of the real estate. Eleven hundred and forty-two dollars thereof consisted of expenses incurred in efforts to charge the Mary Ann Brown interest in the realty with the amount due the administrator,_ as per his statement of 1896. That account was knowingly fictitious to the extent indicated by the following:</p> <p>The item of $25 for a retainer in the Barnes foreclosure is for services rendered the devisees and paid for by them. The administrator had nothing to do with the matter. McOrory, ■one of the alleged retained attorneys, loaned to the devisees the necessary money to pay off the mortgage, as before stated, taking a new mortgage in the name of. his clerk, which included the $25 mentioned.</p> <p>The item of $50 on will contest in the county court is for services rendered the proponent of the will before any administrator was appointed.</p> <p>Tbe item of $20 for will contest in circuit court is for services of tbe same nature as tbe last foregoing.</p> <p>Tbe $75 for attorney’s services in widow’s action to annul tbe deed of tbe homestead covers work, in tbe main, performed for tbe devisees. Tbe administrator, tbe devisees,, and Brennan, the mortgagee who stood for McCrory, were made defendants. McCrory as a real party in interest applied to be made a defendant. Duffy & McCrory represented" all tbe defendants. No answer was interposed for tbe ad-, ministrator, nor was any claim even for costs made against him. Tbe $75 was for services for all defendants, and no evidence was presented showing what particular work Was. done for tbe administrator.</p> <p>Had tbe administrator exercised proper diligence to conserve tbe interest of tbe estate bis claim for compensation, so-far as tbe same was legitimate, would have been settled without incurring any of tbe expenses charged for attorney’s services and disbursements in tbe litigation resorted to for tbe purpose of charging such claim against tbe real estate. Hobbs-filed a bond under see. 3886, Stats. 1898, which remained on file from February 23, 1900, to March 10, 1901. Good faith on tbe part of tbe administrator required him to rely upon, such bond, as be might have done successfully, instead of incurring so much expense to charge tbe real estate with bis. claim. Eeasonable compensation for attorney’s services to so charge tbe real estate would not exceed $450 under any circumstances, while tbe amount charged is $650. Because of" the misconduct of the administrator and his attorneys, as stated, only $225 should be allowed. Tbe amount allowed tbe administrator for personal services should be limited to $15 as charged. Tbe items of disbursements in respect to the-sale of real estate, aggregating $111.30, for printer’s, appraiser’s fees, clerk’s fees, etc., should be allowed. Also $75 for attorney’s services in tbe foreclosure action of Hobbs in Madden ei al. The various judgment claims for costs, aggregating $222.92, should be allowed at $197.92. Tbe items in tbe account filed in 1896, as aforesaid, should be disallowed, except $27.15, the item of $25 attorney’s fees included in the $42.15, heretofore said to be a legitimate part of such account, being disallowed. The aggregate of the allowed items, $666.37, should be reduced by credits to the amount of $79.73, the same being for costs paid to the administrator. Ilobbs knew, or ought to have known, when he took the mortgage that the Mary Ann Brown interest in the real estate was liable for claims that might be allowed against the estate and for the expenses of administration. During all the litigation he resisted the efforts of the administrator to- obtain payment of such claims out of the realty. . By paying the small amount chargeable against the realty at the beginning, being $84.65, all of the expenses forming the foundation for the large claim against the estate would have been avoided.</p>

<p> hand, contract: Conveyance as condition of payment: Negotiable instruments. </p> <p>1. Where, by the terms of a land contract, conveyance is to be made upon demand after completed payment, the promise of payment is absolute, and the vendee is not entitled to demand that conveyance be made either before or concurrently with his payment of the note given for the last instalment of the purchase price.</p> <p>[2. Whether a promissory note is rendered nonnegotiable by a statement on its face that it is “secured by land contract,” not decided.]</p>

This is- a contest over the probate of an instrument offered as the last will of Charles L. Sherwood, deceased. The county-court o-f Fond du Lac county refused probate of the alleged will, and thereupon George L. Field, who is named as executor therein, appealed to the circuit court, where it was admitted to probate. The contestant, Mary Hannah Piclcard, is an adopted daughter of the deceased.

Eowlee, Circuit ■Judge. This is an appeal from an order and judgment for a final -division and distribution of the property of the defendant in an action for divorce. The original judgment, rendered March 12, 1902, dissolved the marriage between the parties, •awarded temporary alimony to- the plaintiff, and awarded the ■custody, care, and support of the three children to the defendant, but did not decree a final division of the property.

<p> Limitation of actions: Injury to person: Notice: Assault and battery. </p> <p>The provision in subd. 5, sec. 4222, Stats. 1898, that no action for an injury to the person shall be maintained unless written notice of the injury be given within one year after the happening of the event, refers to such an action for injury to the person as is thereinbefore mentioned, i. e. one for which a different period of limitation is not expressly provided, and therefore is not applicable to an action for an injury inflicted by an assault and battery, the limitation for which is prescribed by sec. 4224.</p>

J. Eeuit, Circuit Judge. This is an action to recover damages for personal injuries. The defendant owned and operated a pearl button factory at La Crosse, and at the time of the accident, March 14, 1904, the plaintiff, a man twenty-eight years of age, was an employee in the factory, and had been such for nearly three years. He operated a machine propelled by line shafting, known as a Berry sawing machine, which cuts out the button blanks from clam shells.

<p> Mortgages: Conveyance absolute in form: Parol evidence: Statute of frauds: Contract for benefit of third person: Enforcement: No-vation. </p> <p>1. A conveyance of property in writing as security is a mortgage regardless of the letter of the instrument. The purpose not the-form determines its character.</p> <p>2. No matter what the nature of a conveyance may he which is-given as security, when the evidence, either written or parol, establishes the fact that the relation of mortgagor and mortgagee-exists between the parties, the right of the party is limited to a. mere mortgage interest.</p> <p>3. The foregoing propositions do not violate the rule that a written. contract cannot be varied or contradicted by parol, non are they-inconsistent with the statute of frauds.</p> <p>4. Such propositions rest on the rule that an ambiguity in a written. instrument, which arises by applying the paper to the subject with which it deals, may be solved by the circumstances characterizing its making, and the further rule that the reduction of one feature of an entire transaction to writing in part execution thereof does hot preclude proof hy parol of the other features and the enforcement of the intention of the parties as evidenced by the -whole transaction.</p> <p>'5. If a person makes a contract with another for the benefit of a third person, the latter may enforce it at law regardless of his relations with the first person, or whether he had any knowledge of the transaction between such person and such other at the time of its occurrence, and regardless of any formal, assent thereto on his part prior to the commencement of the action.</p> <p>«6. A novation contract, as where A. owes B., and B. owes C., and the three mutually agree that A. instead of paying B. shall pay C., and 0. agrees to take A. as his debtor in place of B. and release the latter, is one thing, and an agreement for a sufficient consideration to support it moving from one to another for the benefit of a third, who may be an entire stranger to the transaction, is another. The latter is enforcible without any element of a novation contract characterizing it.</p> <p>[Syllabus by Makshaix, X]</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: J. J. Ebuit, Circuit Judge.</p> <p>Erom 1870 to the time of his death in 1891, one Joseph Leinfelder owned lots 7, 8, and 9 in a certain platted addition to the city of La Crosse. Such lots lay longitudinally east and west; the east end hounding on an alley and the west end on a government subdivision line. A few feet further west was ETinth street in said city, between the east line of which and the west line of said lots lay a strip of land six feet wide at the south end and sixteen feet at the north end, which-did not belong to the platter of said lots. Erom the time of the purchase of said lots to the time of his death in 1891, Joseph Leinfelder possessed and occupied this strip adversely, so as to have acquired full title thereto. He moved an old house onto the middle lot (8) about four feet east of the west lot line. It fronted toward ETinth street, and, by virtue of the owner’s possession of this strip, Rad access thereto; snch land between the house and the street being used in the ordinary manner as a front yard. Joseph Leinfelder, upon his death in 1891, by will devised to his son Prank lot 9 and fifty feet of lot 8, a total of about 69x140'feet of ground, upon which stood the house, which was the only building upon the three lots. ILe devised lot I to another son, but made no disposition of the strip of land lying between these lots and Ninth street, except by a general residuary devise of all property to his six children. Prank Leinfelder continued to use the dwelling house and to occupy and use the strip of land in the saíne manner as his father had done, namely, as a dooryard for the dwelling house and as a means of access to the street. In 1899 Prank Leinfelder mortgaged to the plaintiff the same premises devised to him by his father, which mortgage was foreclosed and the property bid in by plaintiff in April, 1902, and is still owned by him. On April 25, 1901, all of the children and heirs of Joseph Leinfelder conveyed by quitclaim to the defendant the above-mentioned strip of land along Ninth street and in front of these lots. In 1903 he proceeded to fence the same in, so as to exclude plaintiff from all entry thereon or passage across the same to Ninth street. This action was brought, alleging ownership by adverse possession in the plaintiff, and seeking to enjoin the defendant from any interruption of plaintiff’s occupancy and use thereof. The court held against plaintiff’s title, but held him entitled to a reasonable right of way of necessity for access to Ninth street, and enjoined defendant from interfering therewith, but refused to enjoin the latter from interfering with.the possession and occupation of the rest of the strip as a doorway, for which plaintiff contended as an easement implied from such use of said premises when owned by the same person who owned the lots and house. Plaintiff appeals from the whole judgment, but assigns as error merely the refusal to' include injunction against interference with the use of this strip as a dooryard.</p> <p>He contended that it is apparent that Joseph leinfelder intended that the strip in front of each lot should go with the lot. It will not he presumed that he intended to devise a lot and dwelling house to his son to which he had no access and no dooryard, when he himself had both ■in actual use with the premises. Oollins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61; Huttemeier v. Albro, 18 U. T. 48; 4 Kent, Comm. 467, and cases cited; Z7. S. v. Appleton, 1 Sumn. 492; New Ipswich W. L. Factory v. Batchelder, 3 U. H. 190; Pyer v. Garter, 40 Eng. L. & Eq. 410. It is well settled that where the owner of two tenements, or an entire ■estate, has so arranged and adapted them that one tenement, or one portion of the estate, derives a benefit or advantage from the other of a permanent, open, and visible character, and he sells a portion of the property, the purchaser will take the tenement or portion sold with all the benefits and burdens which so appear at the time of sale to belong to it. It is not necessary in such case that the easement claimed by the grantee be really necessary for the enjoyment of the estate granted. It is sufficient if it is highly convenient and beneficial therefor. Newell v. Pass, 142 Ill. 104, 31 H. E. 176; Ciliado v. Klehr, 117 Ill. 643, 7 U. E. Ill; J anes v. J enlcins, 34 Md. 1; Huttemeier v. Albro, supra; Lampman v. Millos, 21 U. Y. 505, 507; Dunlclee v. Wilton E. Go. 24 1ST. H. 489; •Gannon v. Boyd, 73 Pa. St. 179; Simmons v. Gloonan, 47 U. Y. 3; John Hancoclc Mut. L. Ins. Go. v. Patterson, 103 Ind. 582, 53 Am. Rep. 550; Dillman v. Hojfma/n, 38 Wis. 559, 575; Henry v. Koch, 80 Ky. 391, 44 Am. Rep. 484; Jarsiadt v. Smith, 51 Wis. 96; Galloway v. Bonesteel, 65 Wis. 79; Fremont, F. & M. V. B. Go. v. Gayion, 67 Heb. 263, 93 U. W. 163; Goddard, Easements (Bennett’s ed.) 122. The same rule must follow a devise that attaches to a grant. The method of alienation to raise a transfer of a servitude or easement is not material. 23 Am. & Eng. Ency. of Law (2d ed.) 15; Phillips v. Phillips, 48 Pa. St. 178, 86 Am. Dec. 577;. Gollins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61. Where' the owner of two contiguous pieces of land, one of which is-burdened with a servitude in favor of the other, mortgages the dominant estate, the mortgage is a potential severance of the estates, and an easement results in favor of the dominant estate. Dixon v. Schermeier, 110 Cal. 582; John Hancock Mut. L. Ins. Go. v. Patterson, supra. The adverse possession of the strip of land in connection with the lots continued right along down from Joseph Leinfelder to the appellant, giving-the latter absolute title to the strip in front of his lots. Adverse possession may be tacked outside of the call of the deed where there is a succession of relationship to the same thing, whether created by deed or by other acts or by operation of law. 1 Greenl. Ev. (13th ed.) §§ 189, 523; Hart v. Moul-ton, 104 Wis. 349; Woilman v. Pueble, 104 Wis. 603; 8. G. 100 Wis. 31; Illinois 8. Go. v. Budzisz, 106 Wis. 499; Illinois 8. Go. v. Bilot, 109 Wis. 418; Baiz v. Woerpel, 113 Wis.. 442; Sheelcs v. Erwin, 130 Ind. 31,-29 N. E. 11.</p>

J. Fbuit, Circuit Judge. This action was brought for the recovery of damages for injuries sustained by plaintiff on February 9, 1904, while employed in defendant’s sawmill in the city of Tomah. Defendant’s mill, at the time of the accident, was equipped with two band saws for sawing timber. These saws were located in the west end of the mill near the southwesterly and northwesterly corners, respectively.

<p>Appeal from a judgment of the circuit court for La Crosse ■county: J. J. Eruit, Circuit Judge.</p> <p>Plaintiff, a Pennsylvania corporation, brought action to recover on a note given for the first premium on a life insurance policy on the life of the defendant, a resident of Wisconsin. It is alleged in the answer, in effect, that plaintiff is a foreign ■corporation engaged in furnishing life insurance, incorporated under the laws of Pennsylvania and having its home office in Philadelphia, and that it has not been licensed to do business in Wisconsin, and has not complied with ch. 89, Stats. 1898, and amendments thereto; that the note in question was made in Wisconsin, and that plaintiff represented it was authorized to do business therein; and that it discriminates in favor of some and against other individuals and between insurants of the same class. A jury was waived and the case tried by the •court, and judgment entered for plaintiff for $227, amount of the note for first premium, from which judgment this appeal-was taken.</p>

<p>Appeal from a judgment of tbe circuit court for Racine -county: E. B. Belden, Circuit Judge.</p> <p>Plaintiff was engaged in tbe business of selling coal and wood at wholesale and retail in tbe city of Racine, and from time to time received shipments of coal in boat loads, which be was compelled to unload; tbis work being done by men in bis employ. Tbe complaint stated tbat at tbe time of bringing the action tbe plaintiff was receiving such shipments in lots of from 850 to 6,000 tons, and tbat there were then at 'bis docks two boat loads, one of 1,600 tons and one of 2.100 tons, •wixieib. it was necessary to unload immediately to save the expense and cost of demurrage; that plaintiff had a gang ■of men in his employ unloading coal, and that they would he so engaged during the season of navigation; and that it was necessary to a proper and efficient conduct of his business that they he uninterrupted by the defendants. The individual defendants are alleged to be members of the International Longshoremen’s & Marine Transportation Workers’ Association. These defendants are alleged to have conspired together for the purpose of wrongfully interfering with plaintiff’s conduct and control of his business, by hindering and preventing his securing the help necessary to prosecute it, particularly by compelling him to hire certain persons and to discharge others, against his will; and it is alleged that the defendants have, by show of force and threats and acts of personal violence, intimidated and frightened the employees of plaintiff, so that he is liable to be deprived of their services. It is further alleged that defendants purpose to continue to harass and annoy plaintiff and his employees, and to create greater disturbances and more trouble, in order to cause plaintiff to discontinue his business. Defendants are alleged to be without means and property sufficient to compensate plaintiff in damages for the loss likely to be caused, and plaintiff therefore demands judgment that during the pendency of the action and forever after the defendants be restrained and enjoined from obstructing and interfering with the plaintiff in the conduct and control of his business, and from intimidating or forcing persons to quit his service, or from preventing them from entering the service of plaintiff, and from collecting in and about the approaches to plaintiff’s docks for picketing, patroling, and guarding such approaches and the grounds and buildings for the purpose of intimidating plaintiff’s employees, and that they be enjoined from going to the homes of plaintiff’s employees for the purpose of intimidating or coercing them to leave his employment or from entering his service.</p> <p>Tlie temporary injunction asked for was issued, to be effective during tlie pendency of tlie action, and the acts complained of were discontinued. The action was begun duly 25, 1904, and on that day the temporary injunction was issued. The action was tried January 5, 1905, after the strike had ended, and resulted in findings to the effect that at the time the temporary injunction had been applied for a good cause existed for granting it, that it had been applied for in good faith, but that no cause existed for granting a perpetual injunction. Judgment was awarded denying the perpetual injunction, dismissing the action, and granting the defendants their costs against plaintiff. This is an appeal from' this judgment.</p>

<p>Appeals from a judgment of the circuit court for Milwaukee county: Oreen T. Williams, Circuit Judge.</p> <p>Action to foreclose a mortgage. The complaint was in the usual form. Defendants Thomas H. Bowes and Mary Kurtz, as executors of the last will of J ames Lawrie, deceased, pleaded ownership of a note for $1,600, secured hy a mortgage on the premises described in the complaint, given to their testator in his lifetime by defendants Francis Ward and Alice Ward, the makers of plaintiff’s mortgage, and that the said mortgage was paramount to that of the plaintiff. They ask for appropriate relief. Defendants Francis Ward and his wife Alice Ward pleaded extinguishment of the" Lawrie mortgage by payment of the indebtedness secured thereby to Henry Herman, as agent for Lawrie in his lifetime. Defendant Yahr pleaded ownership of a $600 note made by said Francis Ward, secured by a mortgage on the premises described in the complaint, executed by said Francis Ward and his wife, and that the same was paramount to the Lawrie mortgage. The facts established by the evidence as found by the trial court, so far as necessary to be stated, are these:</p> <p>On December 12, 1893, defendants Francis Ward and Alice Ward mortgaged the real estate described in the complaint to Henry Herman to' secure payment in five years of Francis Ward’s note for $1,600 and interest thereon at the rate of seven per cent, per annum, payable semiannually. The mortgage was duly recorded December 16, 1893. January 10, 1894, Herman, for value, in writing assigned the mortgage and indebtedness secured thereby to James Lawrie. The assignment was not recorded till April 23, 1903. The failure in that regard was in accordance with a then existing custom. Interest on said note was duly paid to Lawrie or his agent until 1898. In October, 1902, Lawrie delivered the mortgage, note, and assignment to Henry Herman with instructions to collect. Herman delivered the same to an attorney with instructions to commence foreclosure proceedings but not to file any papers. The attorney did as directed, Lawrie verifying the complaint, and service thereof being duly made in the action. No papers in such action were filed. No bill for legal services was rendered to Lawrie, nor was the latter notified of the termination of the action, which thereafter occurred.</p> <p>On November 14, 1902, by previous arrangement, Alice Ward, Ferdinand T. Yahr, and Henry Herman met at the latter’s office. Neither Lawrie nor his attorney knew of such meeting. The amount due on the mortgage indebtedness for interest and unpaid taxes was then determined. An outstanding mortgage for $300 on the premises in question to a corporation represented by Yahr was satisfied, a new note for $1,600, payable in five years with interest at five per cent, per annum, was prepared and a mortgage on such premises to secure the same was signed by Alice Ward. Later in the day the mortgage and note were signed by Francis Ward, and the mortgage was duly witnessed and acknowledged so as to be entitled to record. At this time the Wards were assured that a release of the Lawrie mortgage was ready for delivery and would be recorded witb tbe new mortgage. No release was in fact ready for delivery. Tbe mortgage was duly recorded tbe next day after its execution. At tbe time of making tbe second $1,600 mortgage tbe Wards gave a note for $600, due in five years thereafter witb five per cent, interest per annum, to defendant Yahr, and mortgaged tbe premises .in question to secure payment thereof, tbe same to be subject to tbe $1,600 mortgage. Tbe consideration for tbe Yahr mortgage was tbe satisfaction of tbe $300 mortgage and a loan of $300. At tbe same time tbe Wcurds further mortgaged tbe premises to Herman to secure payment of Francis Ward’s note for $600 given to Herman, which by its terms drew interest at tbe rate of five per cent., per annum and was payable in five years. Thereafter such note and mortgage were duly assigned to defendant Vedder, who is now tbe owner thereof. That note was due at tbe time of tbe commencement of this action. • By agreement witb defendant Yahr bis mortgage was made subject to tbe Vedder mortgage.</p> <p>At tbe time of tbe transactions of November 14, 1902, Yahr bad actual notice that Lawrie was tbe assignee of Herman of tbe first $1,600 mortgage, and Vedder bad constructive notice.of such fact. Herman, from tbe time be transferred tbe mortgage to Lawrie till be left tbe country in 1903, knew that tbe mortgage indebtedness bad not been paid and that Lawrie bad never released bis mortgage. As a result of negotiations between Herman and Charles Friend, plaintiff’s son and attorney, between tbe date of tbe second $1,600 mortgage and tbe 24th day of November thereafter, tbe former transferred such mortgage and tbe indebtedness secured thereby, delivering tbe papers to said Friend. In consummating tbe deal Herman delivered witb tbe note and mortgage an assignment executed so as to entitle the same to be recorded, except the' name of tbe assignee was left blank, a satisfaction, in form, of tbe Lawrie mortgage executed by Herman without tbe knowledge of or consent of Lawrie, and an abstract of title showing the first $1,600 mortgage to be unsatisfied of record. In January, 1903, Eriend completed the assignment by writing in the name of A. Gr. Stein, of New York, as assignee. Neither Stein, Herman, nor Lawrie knew of this. Eriend acted for Stein under a duly recorded power of attorney authorizing him to do such business. Before the commencement of this action Friend, under such power, assigned the securities acquired by him as aforesaid to the plaintiff, though the assignment was not executed so as to be entitled to record, and the same has never been recorded. Stein did not furnish any money to carry out the transaction aforesaid or know of the same. When Eriend acquired the mortgage from Herman he had notice of the state of the record as to the Lawrie mortgage. He made no inquiry therefor, nor was the mortgage or the note secured thereby produced at the time of the transaction, nor was there any evidence produced on the trial that such securities were then in Herman’s possession. Herman did not execute said satisfaction with the intention of delivering the same to the mortgagors. It was not received by Eriend with the understanding that it was to be so delivered. He retained the same until April 10, 1903, when he caused it, together with the assignment, to be duly recorded.</p> <p>Shortly thereafter Herman absconded. Eriend knew, prior to such departure, of Herman’s intentions in the matter. At the time of the transaction between Eriend and Herman in respect to the mortgage, the latter delivered to the former $3,000 face value of corporate stock to secure payment of $1,800, he at the same time giving Herman his check for that amount, which was subsequently paid. The stock was later returned to Herman. Plaintiff knew nothing of this transaction. Eor some fifteen years prior to Herman’s departure he was an active business man in Milwaukee, where all the transactions referred to occurred. During such period he was engaged in many business matters and enterprises, in some of which Friend was associated with him, and their relations were very close and friendly. On the eve of Herman’s departure he transferred to Friend some property in settlement of various claims the latter had against-him. The Law-rie note and mortgage were returned to Lawrie some time after the execution of the second $1,600 mortgage. Other facts were found sufficient to support the judgment, if correct ■conclusions of law were drawn by the trial court.</p> <p>The court held thus: The Lawrie mortgage is in full force and the first lien upon the premises described in the complaint. The second $1,600 mortgage and note were taken by Herman, and the money obtained therefor from Friend, with the intention on the former’s part of converting the same to his own use. The assignment of such mortgage was too incomplete when delivered to be effective for any purpose, and it was not made effective thereafter, in that it was not re-witnessed and acknowledged after its completion by filling in the name of an assignee. Friend took the mortgage with constructive notice of Lawrie’s rights under the first mortgage, and not as a bona fide holder. The satisfaction, in form, of Lawrie’s mortgage was ineffective for want of delivery thereof to the mortgagors. Herman was not the agent for Lawrie in taking and disposing of the second $1,600 mortgage. The several mortgages mentioned, as regards priorities, rank as follows: The Lawrie mortgage first, the Tedder mortgage second, the Yahr mortgage third, and the plaintiff’s mortgage fourth.</p> <p>Judgment was entered accordingly, from which plaintiff and Yahr separately appealed.</p>

Aepeal from a judgment of tbe superior court of Milwaukee county: J. C. Ludwig, Judge.

This is an action to foreclose a mortgage upon real estate in Manitowoc county for $500, but not seeking to enforce any personal liability.

M. Webb, Circuit Judge. This action is brought to recover damages for personal injury sustained by the plaintiff, June 20, 1901, by reason of an alleged defective sidewalk at the particular point described.

M. Webb, Circuit Judge. This is an action brought by Caroline E. McConick, in her lifetime, to set aside a deed of 160 acres of land, in form executed by her to her son, the defendant Dwight F. McGoniclc, on the ground that she was fraudulently induced to sign the same supposing it to be a will. The ease was tried by the court, and findings and judgment rendered setting aside the deed, and the defendants appeal.

Appeals from a judgment of the circuit court for Wood county; James O’Neill, Circuit Judge. Action for an accounting.

M. Webb, Circuit Judge. In 1901 and 1902 tbe defendant, a national bank, bad certain cut-over lands in Iron county, acquired in collection of indebtedness and beld by it for sale. Of these lands there were 20 forties in townships 42 and 43 in range 2, and 29 forties in townships 41, 42, and 43 in range 3.

Croix county: E. W. Helms, Circuit Judge. Held: among other things, that Eobson had waived his right to a Hen under his contract with King of September 15, 1899, and that plaintiff stood in no better position in this respect than Eobson would have occupied had he lived and completed the flume, and. that defendant at no time assumed and agreed to pay the claim which plaintiff seeks…

Croix •county: E. W. HelMS, Circuit Judge. Action to recover damages for assault and battery.

Ray SteveNS, Circuit Judge. This is an action for the value of services performed and money expended by ithe plaintiff in clearing, breaking, and fencing a forty-acre tract of land belonging to the defendant.

order of the circuit court for Dane county: E. Eat SteveNS, Circuit Judge.

Appeals from a judgment of tbe circuit court for Sauk county: E. Eat SteveNS, Circuit Judge. Tbe plaintiff, a widow seventy-two years old, on tbe 28tb day of November, 1893, in consideration of support and maintenance, conveyed to ber son, Charles Call, ber farm in Sauk county, consisting of 120 acres, worth about $1,500, together with personal property thereon of tbe estimated value of $400.

<p>Appeal from a judgment of the circuit court for Saule county: E. Ray Stevehs, Circuit Judge.</p> <p>To tbe point that plaintiff’s declarations as to tbe ownership' of tbe horses were not admissible in bis favor, they cited 1 Jones, Evidence, § 236; 2 id.; §§ 300, 354; Garroll v. Frank, 28 Mo. App. 69; Stone v. O'Brien,, Y Oolo. 458, 460; 24 Am. & Eng. Eney. of Law (2d!ed.) 690, 691; Knapp v. Schneider, 24 Wis. Y0, Y3; Gohn vi\ Heimbauch, 86 Wis. 1Y6, 1Y9; Sweet v. Wright, 5Y Iowa, 5ljo, 10 N. W. 8Y0.</p>

<p>'Appeal from an order of the circuit court for Sauk county: E. Rat SteveNS, Circuit Judge.</p> <p>Special proceedings to obtain leave to appeal from a decision of the county court admitting a will to probate after the time absolutely allowed therefor by statute had expired.</p> <p>The application was made by and on behalf of citizens of the kingdom of Great Britain. The petition stated as regards the interest of the persons desiring to contest the probate of the will, as follows:</p> <p>“Tour petitioners are near relatives and heirs at law of the said deceased, and are entitled to a distributive share in said estate, should said will be set aside and declared void and the said estate thereby become subject to distribution under the laws of descent of this state.”</p> <p>The appeal is by the executor named in the will from an order granting the application of the petitioners.</p> <p>contended, inter alia, that the statute only allows this proceeding to m% aggrieved -party; and this court has repeatedly held that unless a party has some legal interest in the controyersy (applying it to this case, unless these parties would have a legal right to the estate or some part of it if the will be set aside) he cannot be aggrieved, and bence has no standing in court and no right to interfere. Now, in order to have any legal interest in the property, these parties must be next of Icin, not merely “near relatives” as stated in the petition, and the petition must state the facts from which the court may draw the conclusion that they are next of kin. Downer v. Howard, 47 Wis. 476; Marx v. Row-lands, 59 Wis. 110, and cases cited by appellant on page 112; jLigon v. Hawlces, 110 Tenn. 514, 75 S. W. 1072; Deering H. Go. v. Johnson, 108'Wis. 275. There must of necessity be a broad discretion exercised by the court in determining whether or not to allow an appeal; but that discretion only applies to the facts showing excuse for the default in not appealing in time. It does not and cannot apply to the question of whether the party appealing is a proper party — -has any rights to vindicate. That is not a question of discretion. It is a fact, to be affirmatively established by proper and legitimate evidence before the court can be called upon to exercise any discretion in the premises.</p>

<p>Appeal from a judgment of the circuit court for Columbia-county: E. Eat SteveNS, Circuit Judge.</p> <p>Plaintiff was manager and in possession of a farm near the-city of Portage in which the defendant had, at his request, installed a telephone, the ground connection of which originally-was a three-foot rod of iron driven into the ground, which-proved inadequate in the winters of 1898 and 1899, whereupon the defendant, at plaintiff’s request and with his knowledge, connected with the ground wire another wire passing-over a shed-roof and into a pumphouse and thence to the floor and fastened around an iron pump. In the following spring a longer iron rod or pipe was substituted for the first one and the ground ydre of the telephone connected with that, thus-leaving the telephone suppliéd with two ground connections. Some time in 1899 or 1900 the wire in the pumphouse became disconnected from the pump by no act of defendant, and for two or three years the disconnected end hung there in close.proximity to tbe pump and was used by tbe plaintiff to bang á key on. Some time in tbe spring of 1903, probably in March, tbe plaintiff, or some of bis bousebold, coiled up tbe dangling -<|nd of tbis wire and bung it upon a nail inside of tbe pump-'kouse upon wbicb bung a small looking-glass used by members •of tbe family for toilet purposes, of wbicb plaintiff bad full knowledge. Meanwhile plaintiff bad no knowledge or information tbat tbis wire bad ever been disconnected from tbe telephone ground wire or tbat it bad not. On May 26, 1903, in ■tbe midst of a violent electric storm, plaintiff, after ablutions, stepped in front of tbis glass to comb bis hair, using for that purpose a metallic comb. His face was but a few inches from tbe coil of wire banging on tbe nail. Suddenly there was a flash of lightning, apparently from tbe end of tbis wire, wbicb •struck plaintiff’s face, rendering him unconscious and causing-serious injury. There was also evidence tbat about tbe same moment lightning struck a telephone pole not very far from tbe bouse, and signs of scorching near tbe telephone and at tbe ■end of tbis wire were discovered, claimed to indicate tbat tbe lightning striking tbe pole bad been conducted through tbe telephone wire into tbe bouse and thence through tbe wire into tbe pumphouse. Tbis action was brought to recover plaintiff’s damage.</p> <p>Tbe jury found by a special verdict (1) tbat plaintiff’s injury resulted from tbis wire; (2) tbat defendant was not guilty of negligence in not disconnecting tbe pumphouse wire from tbe ground wire; (3) tbat tbe defendant was negligent In leaving tbe wire disconnected from tbe pump; (4) tbat ■such negligence was the proximate cause of the' injury; (6). tbat there was “want of ordinary care on tbe part of tbe plaintiff, wbicb contributed to tbe injury;” and (7) damages $1,000. Plaintiff moved to reverse tbe answer to tbe sixth ■question -and enter judgment in his favor on such amended verdict, and, failing such relief, tbat tbe verdict be set aside and new trial granted. Such motions were overruled and judgment rendered for defendant on the verdict, from which plaintiff appeals.</p>

<p>Appeal from a judgment of the circuit court for Langlade-county: JohN GoodlaNd, Circuit Judge.</p> <p>This action is brought to recover damages caused by the alleged negligence of the defendant. The complaint is to the effect .that the plaintiff was a farmer, and on August 22, 1903, was engaged in cutting and harvesting grain upon the eighty acres of land described, with a self-binder and heavy-team of horses; that the premises abut upon and are bounded on the east by a highway running north and south; that the plaintiff was driving the machine easterly on said premises toward said highway and near the fence between the premises- and the highway; that the defendant was driving on said highway from the south in a northerly direction toward the-plaintiff, with a team and light wagon, and having on his person and in his possession a revolver; that the plaintiff proceeded with due care on his course, and had reached said fence between the highway and said premises, and was turning the corner south, when the defendant reached a point in said highway opposite to plaintiff and in close proximity to-him and his said team; and while in such position said defendant, knowing the situation of the plaintiff, and while said' machine was in gear, without any warning to him, negligently, carelessly, and without the exercise of due care, in utter disregard of the plaintiff’s rights, fired said revolver and thereby caused the plaintiff’s team to become'frightened, unmanageable, and to run away; that by reason of said negligence of the defendant the plaintiff was thrown from the seat of said machine forward and down onto tbe cutter bar; and that bis left arm was mangled and tom so that it bad to be amputated, and bis lower limbs were cut and lacerated, and bis body bruised and injured, whereby be suffered great damage, for wbicb be prayed judgment. A demurrer to tbe complaint baying been overruled, tbe defendant answered by way of admissions, denials, and counter allegations.</p> <p>At the close of tbe trial tbe jury returned a special verdict to tbe effect (1) that tbe plaintiff was injured by being thrown from a binder in consequence of tbe team running away on August 22, 1903; (2) that tbe running of said team was caused by tbe discharge of a revolver in tbe hands of the defendant; (3) that such revolver was fired intentionally by tbe defendant; (4) that the firing of such revolver was negligence on tbe part of tbe defendant; (5) that such negligence of tbe defendant was tbe proximate cause of tbe plaintiff’s injury; (6) that tbe plaintiff bad sustained damages by reason of such injury in tbe sum of $1,750. Erom tbe judgment entered upon such verdict for tbe amount stated in favor of tbe plaintiff, tbe defendant appeals.</p>

<p>Appeal from an. order of the circuit conrt for Outagamie county: John Goodland, Circuit Judge.</p> <p>In February, 1902, plaintiff commenced an action against the defendants, copartners, for the recovery of damages for breach of' warranty in a contract to sell a large amount of personal property. [Negotiations for settlement ensued for several days, but terminated by the refusal of the defendants to assent to the offer of settlement made by plaintiff, whereupon defendants’ counsel, in the same presence, announced to them that they had but three or four more days to enter their appearance, after which plaintiff would be entitled to judgment by default. Ho appearance was entered, and in February, 1903, default was established and proof offered in open eourt and judgment taken for the amount demanded by the complaint. On September 3, 1904, defendants moved to set aside the judgment and to permit them to answer, on the ground that their neglect to defend was due to their reliance upon an alleged promise by the plaintiff to take no further steps in the action without notifying them. They accompanied such motion by answer setting up a good defense. By counter affidavits the plaintiff denied the making of any such promise. The court, however, granted the motion to the extent of relieving from the default, permitting answer, and retaining the judgment meanwhile as security. As terms of ■such permission defendants were required to pay plaintiff $7 of taxed disbursements included in the judgment and also $25 as motion costs. From such parts of this order plaintiff Brings this appeal.</p>

This is an action against Outagamie county for compensation for medicine and professional and medical services furnished to one Nic Huff, a poor person. The allegations of the complaint and the record disclose the following material facts: The plaintiff is a physician and surgeon, engaged in the practice of his profession at the city of Seymour, Outagamie county. Part of the Oneida Indian reservation, which is not organized into towns, lies in Outagamie county.

<p> Reference: Motion for judgment: Time limited: New trial: Mandatory statute. </p> <p>Sec. 2867, Stats. 1898 (providing that “if in any action heard and decided by a referee the prevailing party shall fail to cause the referee’s report to be filed and move for a judgment thereon within one year from the date of said report the action shall be dismissed or a new trial ordered, on motion of the-adverse party”), is mandatory, and the court has no power under sec. 2831 to enlarge said time.</p>

<p> Service of summons: Amendment of 'proof: Judgment py default: Vacating: Re-entry: Jurisdiction. </p> <p>1. The proof of service of a summons, though made by a person other than an officer, may be amended.</p> <p>'2. As a general rule, after the papers have been filed the proof of service of summons by a person other than an officer can be amended only upon leave of court; and the better practice is. to give the adverse party an opportunity to be heard, although failure to do so would not constitute prejudicial error.</p> <p>3. Where, however, the proof of service has been held insufficient. to show jurisdiction and a judgment by default rendered on such defective proof has been stricken from the records, the papers may be withdrawn from the files for the purpose of making a new service or of making proper proof of the original service.</p> <p>4. A judgment by default, entered before the clerk, was vacated because the proof of service of the summons was insufficient. Afterwards a second judgment, entered upon new and sufficient, proof of service, was vacated upon the ground that the clerk had no jurisdiction to enter it. Held that, notwithstanding such orders, the court had„ jurisdiction thereafter, upon application and on determining that proper service had actually been made, to enter judgment for plaintiff on the default.</p>

<p>Appeal from a judgment of the circuit court for Outaga-mie county: Johet Goodlahd, Circuit Judge.</p> <p>An action to set aside a deed, made on Pebruary 13, 1904, by William Krohn, since deceased, by which he conveyed his real estate and personal property to Minnie Zachoiv, one of the defendants. It is claimed that the deceased was not mentally competent to make the deed at the time of its execution.</p> <p>William Krohn, at the time of his death, was an unmarried man of about forty-one years of age. He had been engaged in the business of teaming at tbe city of Appleton for years before bis death, which occurred February 14, 1904. At that time and for years prior he had lived and boarded with the grantee, Minnie Zachow, and her husband. He left surviving him, besides this sister, four sisters and one brother, the plaintiffs in this action. His sister Minnie and her husband had furnished him board and lodging and had done his washing while he lived with them. For about three years prior to his death he had been in failing health, and while in that condition they rendered additional personal care and service. The last days of his life he required the care and attendance-of a doctor. He took to his bed on Friday evening, February 12, 1904. His death occurred on Sunday evening, February 14, 1904, at about 11 o’clock.</p> <p>Dr. Sandborn, his attending physician, was summoned at about 6 o’clock Saturday morning. Tie found the patient seriously ill. His testimony is to the effect that he found the deceased very sick, suffering,from diabetes, and that he was-in a semicomatose condition, resulting from blood poisoning incident to this malady. He testified that this comatose condition was one of extreme stupor and drowsiness, accompanied; by an inability to comprehend his surroundings, and rendering the patient incapable of intelligently understanding business transactions. At about 7 o’clock Dr. Ritchie was called to consult with Dr. Sandborn, and he agreed with Dr. Sand-bom concerning the nature of the malady, the condition of body, and the mental incapacity of the patient to comprehend and understand a transaction involving the conveyance of property. Their evidence tends to show that the coma would progress, and that it would render the patient nearly uncon-' scious by 1 o’clock of that day, at which time Dr. Sandborn again saw him in a comatose condition, and that this condition would continue until his death.</p> <p>The defendants adduced testimony tending to show that the deceased became seriously ill on Friday evening, and that he Rad grown worse by Saturday morning; that about 1 o’clock Drs. Sandborn and Eitchie informed them that he was then in a critical condition; and that it was suggested by one of them that if any property matters were to he considered by him it should be done, immediately. Mr. Krause, a friend of the deceased, who had worked for him for about eight years, testifies that he was in the house in the morning and heard some conversation between the deceased and Dr. Sandborn which Krohn comprehended and understood, and that soon after the departure of the doctors, Krohn, while alone in the room with him, spoke to him concerning his condition and property. In response to an inquiry by the witness respecting the situation of his property he informed Krause that he had not disposed of it, and directed the witness to tell the Zachows to get some one to attend to this matter. After conveying this request to the Zachows witness again spoke to the deceased about whom to get for the purpose; and was told to send for Bert Zuehlke, because he had theretofore done business for him. Zuehlke was sent for but could not come, but his father, the assistant register of deeds to his son, Bert Zuehlke, came. Zuehlke arrived at the house at about 8 o’clock, found Krohn asleep, and waited about fifteen minutes until he awoke. Krause and Zuehlke agree that, when Zuehlke went up to Krohn, they exchanged greetings and shook hands; that Krohn spoke to Zuehlke, calling him by name, and then informing him that he wished to dispose of his property, and that, upon inquiry by Zuehlke as to how he wanted to arrange it, he replied that he wished to give it to his sister Mrs. Zachowj that Zuehlke then asked whether he wanted any of it to go to his other relatives,, and that Krohn replied that he did not, but wanted to give it all to the sister Minnie, with whom he lived, because he had-been with her during his ill-health for the last three years;: that he then told them of what his property consisted, and that he had no money and only a few small accounts due him, naming the persons who owed him; that deceased told them the description of the lot could he taken, from his deed, which would he found in his trunk; that Zuehlke then went to an ■adjoining room to prepare the deed, and that he requested ■Zachow to find another person to. sign as a witness. He brought a Mr. Klein.</p> <p>The deed was executed in the presence of Zuehlke, Krause, ■and Klein, who state that Zuehlke read it to Krohn, and then asked him whether that was as he wanted it; that he replied that it was, and that Krohn was then propped up in the bed to sign it; that Zuehlke then suggested to him that he could make his mark instead of wilting his name, and that he did •so. The deed was then signed by the witnesses and taken by Zuehlke to the register of deeds’ office, where his son affixed the acknowledgment. This transaction occupied from an hour to an hour and a half. Some of the relatives testify to being called and to having arrived at the house about 11 ■o’clock. Ho other transactions are shown to have taken place indicating that Krohn was conscious and had an intelligent understanding of his surroundings, except that he communicated to those about him at different times the need of their assistance in relieving himself of his urine, up to the hour of 2 o’clock Sunday afternoon.</p> <p>There is considerable opinion evidence. The doctors give it as their opinion that it was impossible that Krohn could have been in a conscious and intelligent state of mind, as testified to by Zuehlke, Krause, and Klein, when the transaction of deeding the property is said to have occurred. They assert that his condition shortly before and after this alleged transaction made it well-nigh impossible that he comprehended and understood such a transaction so as to make an intelligent disposition of his property, and they deny having suggested to the Zachoios that the deceased make such disposition. A like opinion was expressed by the other relatives respecting deceased’s mental capacity at the times they saw him.'</p> <p>The court found that Krohn was mentally competent and that he made the deed at the time of its execution, and that no grounds were shown for declaring it invalid. Judgment-was awarded dismissing the complaint, and for costs in defendants’ favor. This is an appeal from such judgment.</p>

<p>Ebeob to review a judgment of the municipal court of Milwaukee county: A. 0. Brazee, Judge.</p>

<p> Former judgment: Sow far binding: Pleading: Sales: Fraud: Flection between remedies: Action for damages: Amendment of complaint: Joint and several note: Actions: Parties. </p> <p>1. In an action u^on a promissory note an admission in the answer-that judgment for one year’s interest had been recovered' against defendants does not preclude them from disputing plaintiffs right to recover on the note, where there is nothing-to show that such judgment was recovered on the merits, or-that the defense now set up was litigated or determined in the-prior action.</p> <p>2. After the giving of a promissory note for the purchase price of' a horse the makers brought an action for damages against the payee, alleging that they were induced by his false representations to make the purchase and that their signatures to-the note were obtained by fraud. They did not offer to return the horse. Seld, that the commencement of that action, even though there was no recovery therein, was an affirmance of the-sale and an election of the remedy by way of damages, and precluded the makers from afterwards defending against the-note on the ground of said fraud.</p> <p>3. The effect of the commencement of such action for damages, as. an election between remedies, would not be altered by an amendment of the complaint changing the cause of action.</p> <p>4. The holder of a joint and several note may sue one maker alone-upon one cause of action arising out of the note and all makers, jointly upon another such cause of action.</p> <p>5. A former adjudication is admissible in evidence although not. pleaded.</p> <p>6. A judgment for one year’s interest against one of the joint and several makers of a note is binding upon that maker in a subsequent action upon the note against all the makers, as to all-issues actually litigated and determined in the prior action.</p>

<p> Criminal law and, practice: Witnesses: Cross-examination: Conviction affecting credibility: “Criminal offense:” Verdict: Amendment after separation of jury: Instructions to jury: Exceptions. </p> <p>1. On cross-examination of a witness in a criminal case it was-proper to ask if he had ever been arrested and convicted of being drunk and disorderly, no objection being made that the-question was not sufficiently specific to cover the criminal offense described in sec. 1561, Stats. 1898. The fact that both-arrest and conviction were embraced in one question was not prejudicial or material.</p> <p>2. Such question not being confined to an offense committed in any particular locality must be deemed to have had reference to a locality where there was no municipal ordinance or regulation for the punishment of drunkenness.</p> <p>3. The term “criminal offense” in sec. 4073, Stats. 1898 (providing that conviction of a criminal offense may be proved to affect the credibility of a witness), includes a misdemeanor, but does not include a mere violation of a municipal ordinance.</p> <p>4. Upon a prosecution for robbery and larceny from the person, a sealed verdict finding defendant guilty of larceny, but not finding that he was guilty of larceny from the person nor the value of the property taken, is not sufficient to support a conviction.</p> <p>5. Where in a criminal case the jury has separated after agreeing upon and sealing up a verdict, such verdict cannot, when opened in court, be orally altered or amended in matter of substance.</p> <p>6. Exceptions to tbe instructions to tbe jury, not incorporated into the bill of exceptions so as to become a part of tbe record, cannot be considered on appeal.</p> <p>7. Where a motion for a new trial set out as a ground tberefor a considerable part of tbe charge to tbe jury, embracing, several distinct propositions, some of which were correct, a general exception to tbe order denying tbe motion is not available on tbe question of error in tbe charge.</p>

<p>Appeal from a judgment of tbe circuit court for Polk ■county: A. J. Yiitje, Circuit Judge;</p> <p>Tbis is an action of replevin to recover tbe possession of a quantity of lumber or tbe sum of $4,440, tbe value thereof, in case delivery could not be bad, with interest thereon from March 21, 1903. The defendant answered by way of admissions, denials, and counter allegations to the effect that the defendant became the owner of the lumber by purchasing tbe same at a town treasurer’s tax sale thereof, duly and regularly held by the town treasurer March 21, 1903, pursuant to a tax roll and warrant in his hands regular on its face, directed to him for collection; that such sale was so made for the unpaid personal property tax duly assessed to Pred W. Upham in 1902 and duly levied in said warrant and roll to said Upham; that said lumber was a part of the product of the logs on account of which said tax was so assessed and levied, and was at the time of such assessment and at the time of such sale to the defendant the property of said Uphám; that said Upham is the president and manager and owner of the majority of the stock of the plaintiff corporation; that the plaintiff is es-topped to claim ownership of said lumber or to deny that said Upham is the owner thereof, because, at the time of the assessment of the logs from which tbe lumber was manufactured for taxation, one W. D. Bartell, the bookkeeper and manager in charge of such property for such owner, informed the assessor, in answer to inquiries of him as to the ownership of such property for the purposes of such assessment, as he well knew,' that the logs were the property of said Upham; that afterwards, and at'the time of tbe seizure of suob lumber upon the tax warrant by the town treasurer, said Bartell, still in charge thereof, pointed out to the said treasurer said lumber, and then and there stated that said lumber and all the lumber then in the yard where it was situated was the property of Fred W. Upham, and then and there turned over to said treasurer said lumber to be sold for such tax, if not paid before sale; that, after said assessment and before sale, said Ered W. Upham repeatedly talked with the town officers, including the assessor, members of the town board, and treasurer, concerning such tax and the amount thereof, and claimed that said tax was too high, because the logs were assessed full scale instead of lumber scale; that the said Fred W. Upham tried to' compromise and adjust the amount óf such tax with said officers, and at one time promised to pay said tax to the town treasurer and at another time to the county treasurer, but at no time did he, or any one else, prior to the commencement of this action, state to the officers or any of them or to the defendant that said property was the property of the plaintiff or was not the property of said Upham, or that the tax was not properly assessed to him; that on the evening before the sale the plaintiff’s attorney and said Bartell met with the town board and tried to compromise and adjust said tax, and offered $500 in payment thereof, claiming to represent said Upham, without intimating that any one else was interested; that on the next day said attorney and Bartell attended the' sale, and Bartell then said privately to the treasurer, in substance, “I forbid you to sell this lumber, as the sale is illegal,” but gave no reason why it was so claimed to be illegal; that the'defendant had no notice or knowledge at the time he so purchased said lumber that it was claimed by any one that said assessment, tax, levy, or sale, or any of them, were not regular, legal, and valid, and that said tax proceedings were regular, valid, and complete.</p> <p>At the close of the testimony the court directed a verdict in favor of the defendant to the effect (1) that he was the owner of tbe property and entitled to tbe possession thereof; (2) that tbe plaintiff unjustly took tbe same in tbis action; (3) that tbe value thereof is $4,440; (4) that tbe defendant has sustained damages, by reason of plaintiff’s unjust taking and detention of tbe property, in tbe sum of $12. From tbe judgment entered upon snob verdict in accordance therewith, with costs and disbursements as taxed, tbe plaintiff appeals.</p> <p>To tbe point that replevin will lie where tbe property of one person is taken to satisfy a tax or assessment made against another person, they cited 24 Am. & Eng. Ency. of Law (2d ed.) 504; Cobbey, Re-plevin^ 2d ed.) § 340; Eeagle v. Wheeland, 64 Ill. 423; Vocht v. Feed, 70 Ill. 491 .(dissenting opinion) ; Trcwers v. Inslee, 19 Mich. 98; Tousey v. Post, 91 Mich. 631; Whitta-ker v. Fuller, 96 Mich. 141; Stockwell v. Vietch, 15 Abb. Pr. 412; Dubois v. Webster, 7 Hun, 371; Eallock v. Bwmsey, 22 Hun, 89; Glark v. Skinner, 20 Johns. 465; Lcdee Shore & 'M. S. JR. Go. v. Roach, 80 N. Y. 339; Poioer v. Kindschi, 58 Wis. 539, 542; G. G. Thompson L. Go. v. Hynes, 84 Wis. 353.</p> <p>To tbe point that plaintiff is estopped to question tbe validity of tbe tax or of tbe sale,, they cited Koeh-ler v. Dobberpuhl, 60 Wis. 256; Kaehler v. Dobberpuhl, 56 Wis. 480; Enos v. Bemis, 61 Wis. 656; Massing v. Ames, 37 Wis. 645; N. Boyington Go. v. Souihwick, 120 Wis. 184; Norton v. Kearney, 10 Wis. 443, 453; 11 Am. & Eng. Ency. of Law (2d ed.) 421 — 424; Vilas v. Mason, 25 Wis. 310; Moller v. J. L. Gates L. Go. 119 Wis. 548.</p>

<p>Appeal from a judgment of tbe superior court of Douglas county: Chakles Smith, Judge.</p> <p>This is an action to recover damages for personal injuries suffered by tbe plaintiff July 16, 1904. Tbe defendant was and is a corporation operating a large coal dock at tbe city of Superior, where coal is unloaded from vessels by machinery and loaded into cars. On tbe date aforesaid tbe plaintiff, a boy then sixteen years of age, was employed by tbe defendant as a batch tender, and was in some manner precipitated through one of tbe open batches of a vessel then being unloaded at tbe dock and received serious injuries. Tbe plaint: iff’s claim is that be was struck by a heavy sheave and book used to lower coal buckets into tbe vessel, and that be was so struck by reason of the negligence of an incompetent employee of tbe defendant called a hoister, who was operating tbe sheave and book, and that tbe defendant knew, or ought to have known, of such incompetence. .</p> <p>Tbe evidence1 showed that upon tbe defendant’s coal dock there were maintained at the time of tbe accident eight unloading rigs or derricks, which were used in removing coal from vessels lying at tbe dock, by machinery operated by steam power; that these rigs are timber structures of considerable height, located along tbe edge or face of tbe dock, and placed upon wheels resting upon tracks running tbe full length of tbe dock, so that they can'be moved laterally to tbe exact point desired for unloading coal from vessels; that each rig has an engine room in tbe lower part, above which is a small hoisting bouse, where tbe hoister stands and operates two levers controlling tbe hoisting apparatus; that on tbe right of the hoisting bouse is a bin or hopper in which the coal is dumped as it is brought up from the boat, and passes into ■small cars below and back of this bin, and on the same level is ■a room'in which the hoisting drums and friction wheels, which are operated by the hoister’s levers, are located; that about twenty feet above the platform upon which the hoisting house is placed there is a boom thirty feet in length, extending from the rig outward and over the boat to be unloaded, upon the top of which boom are rails, upon which rails a small four-wheeled iron carriage is placed which runs from the rig out to the end of the boom and back into the rig and carries two sheaves for the wire rope or hoisting line to pass over; that at the end of the boom is a small sheave for the rope, which is attached to the outer end of the carriage, to pass over, which rope is called the carriage line, and passes back into the machinery house and around a drum, the other end being attached to the inner end of the carriage, so that the hoister may apply, by his lever, a friction wheel to the drum, and as the carriage line winds or unwinds the carriage moves in or out upon the boom; that the hoisting line passes over one of the sheaves in the carriage and then down to the hoisting hook and sheave, and thence back to and through the carriage again to another hoisting drum, to which it is attached, which dram is operated also by the hoister by means of a friction wheel, and as the hoisting line is wound up or unwound upon the dram the hook and sheave is either raised or lowered into the vessel below; that the hoisting hook and sheave, which is thus lowered into the vessel, is a heavy apparatus, some two and one-half feet in length, and upon it are fastened coal buckets; that the hoister, standing in the hoisting house, is able to see the vessel and hatchway below through windows in the house, and can see the coal bucket as it descends until it gets down into the hold of the boat; that the hoister operates the machinery by the use of the two levers, the left-hand lever controlling the carriage line and the right-hand lever controlling the hoisting line, both of which lines are wound and unwound upon the drams, which drums are set in motion by the application of friction wheels controlled by the levers; that the coal bucket is lowered into the hold of the boat through the hatch by means of the carriage carrying, the bucket out on the boom to the lowering point, and that the hatch tender is stationed on the deck of tlie vessel by the side of the open hatch, and gives signals to the hoister when to lower the bucket into the hold of the vessel and when to raise the bucket or hook from the hold, accordingly as he sees that everything is clear in the hold; that in the hold are stationed six coal heavers, working in sets of two, and that three buckets are used to keep the rig in active operation; that as soon as an empty bucket is lowered the men to whom it belongs seize it and carry it away from the center of the hatch to the side to fill it, and then take oil the hook, and the men that have a filled bucket attach' the hook to their bucket, and the hatch tender gives the signal to the hoister to start the bucket, and as it swings- up from the hold it is steadied, first by the coal heavers and then by the hatch tender, who has an iron hook for that purpose, so that it may rise without swinging until it reaches the carriage, which in the meantime has been started toward the bin by the hoister; that as the bucket reaches a point over the bin the bail strikes an automatic dumper, causing the bucket to be dumped into the bin.</p> <p>The evidence further shows that one Mbrtes was acting as-hoister upon the rig in question on the day of the accident,, and that the plaintiff was acting as hatch tender at one of the hatches upon the steamer Hoyt, which was then unloading-coal at the dock; that the deck of the boat at the time of the accident was about fifteen feet above the dock floor, and that there was a ladder at the stern of the boat, used to ascend or descend to and from the dock and boat; that the boat in question had some twenty hatches, each twenty-eight feet long transversely with the boat, eight feet wide, and' forty-two inches apart, and each surrounded by coamings a foot or more-in height; that the hatch through which the rig was operating was hatch No. 11, and that the plaintiff was stationed at the side of the hatch and between the same and hatch No. 12; that the rig had been in operation removing coal from this hatch all the afternoon upon the day of the' accident, and that. tbe whistle blew for stopping work at 6:45 p. m.; that just at this time an empty bucket was being lowered into the hatch, and as it reached the coal heavers the hatch tender gave notice to them that the whistle had blown, and the coal heavers disengaged the hook from the bucket and it started to swing; that the plaintiff, when he saw that the hook was disengaged and started to swing, gave the hoister, Mertes, the signal to raise the hook, and turned at once to pick up the box upon which he had been sitting and his guide hook, to leave his work. The plaintiff testifies that while he was picking up his box his side was toward the hatch, and he saw something black against his cheek, and that was the last that he remembered. It is undisputed that he fell into hatch No. 12 with his box and hook, and struck upon the bottom of the boat, a distance of some twenty-seven feet, and suffered severe injuries.</p> <p>The jury rendered a special verdict as follows:</p> <p>“(1) Was the plaintiff, Einer Johnson, injured on July 6, 1904, while in the employ of the defendant, by being struck by the sustaining hook or block, causing him to fall -through a hatch down into the hold of the steamer Hoyt, which was then being unloaded at the dock of the defendant located at Superior, Wisconsin? A. Yes.</p> <p>“If you answer question 1 Wes,’ then answer question 2 and the other questions.</p> <p>“(2) Did the hoister, Mertes, exercise ordinary care in raising the block and sustaining hook out of the hold of the vessel at the time the plaintiff was struck ? A. No.</p> <p>“(3) Was the hoister, Mertes, a competent man to perform the duties of hoister ? A. No.</p> <p>“(4) Did the defendant, prior to the injury to plaintiff, have knowledge that Mertes was an incompetent hoister ? A. Yes.</p> <p>“(5) Was the incompetency of the hoister, Mertes, the proximate cause of the injury to plaintiff ? A. Yes.</p> <p>“(6) Was the plaintiff, Einer Johnson, guilty of any want of ordinary care that contributed to the injury ? A. No.</p> <p>“(7) If the plaintiff should recover in this case, at what amount do you assess his damages ? A. $4,000.”</p> <p>Tbe defendant moved to strike out and change certain answers in tbe special verdict, and for judgment upon tbe verdict; also for judgment notwithstanding the verdict; also for new trial — all of which motions were overruled, except that a new trial was granted on the ground of excessive damages, unless the plaintiff should remit $1,000 from the verdict, in which case a new trial was denied. The plaintiff elected to make the remission, and judgment was entered for $3,000 damages and costs, and the defendant appeals.</p>

<p> Deeds: Consideration: Parol evidence: Contract -partly executed: De-scission: Logging contract: Time: Waiver: Estoppel. </p> <p>1. When, parol evidence offered to show the real consideration for a deed does not contradict it, hut merely shows the other portions of an entire oral contract in part execution of which the deed was made, it is admissible.</p> <p>2. Upon a purchase of standing timber the vendees paid $24,000,’ which was named in the conveyance as the purchase price, but of which $4,000 was in fact paid for the advantage to them of having the vendors do the logging at $3 per thousand feet; and the vendors agreed in writing to do the logging at that rate. All this was done in pursuance of a prior oral contract between the parties. Held, that the agreement as to the logging was not wholly executory and was therefore not subject to rescission by the vendors for a mere breach thereof by the vendees which could he compensated for in money damages.</p> <p>•3. Defendants agreed to log certain timber for plaintiffs during the seasons of 1901-2 and 1902-3, and it was provided that the work should be done during the first season unless they were notified by plaintiffs, prior to July 1, 1901, not to do it until the succeeding season. Pursuant to notice, the work was not done in the season of 1901-2. On August 28, 1902, plaintiffs notified defendants that they had not yet made satisfactory arrangements for transportation of the logs and not to commence logging until such arrangements could he made. Defendants at once informed plaintiffs that if they wished the timber put in as agreed upon they must give notice thereof by September 10th. Plaintiffs gave no notice until November 11th, when defendants declined to go on with the work because the season was -too far advanced. Held, that plaintiffs had waived the provision of the contract as to the time of doing the work and were estopped to claim that the failure or refusal to do it in the season of 1902-3 was a breach of the contract.</p>

<p>Appeal from a judgment of tbe circuit court for Barron county: A. J. ViNJE, Circuit Judge.</p> <p>Action to recover purchase price of certain farm machines alleged to have been sold and delivered by plaintiff to defendants. Defense, general denial. The facts were stipulated and found as follows:</p> <p>Plaintiff, a manufacturer and wholesaler, on February 9, 1903, received a written order from A. 0. Peterson and Charles Peterson for the goods specified, to be shipped on or about March 1st to the defendants at Ohetek, Wisconsin, defendants agreeing to pay therefor on November 1, 1903, and to pay all freight, taxes, and insurance, title to remain in plaintiff until full payment should be made. On February 18th plaintiff segregated from its general stock such machines, retaining them in its warehouse tagged with defendants’ names. On February 24th A. C. Peterson wrote the plaintiff, in terms countermanding “all orders given to your company,” for the reason that he was going away and could not handle them, and stating that, if goods are shipped to his address, would necessarily have to be returned to the plaintiff. Nevertheless, on or about March 1st the plaintiff shipped the goods to the defendants at Chetek, where the same arrived about March 6th. The defendants refused to receive the machines, and they still remain at the depot at Chetek. No payment has been made for them.</p> <p>The court held that there was a valid countermand and entered judgment for the defendants, from which the plaintiff appeals.</p>

<p>Abbbal from a judgment of the circuit court for Barron -county: A. J. ViNJB, Circuit Judge.</p> <p>This is an action to remove a cloud from the title to certain lands claimed by tbe plaintiff. Tbe complaint alleges ownership in fee by .tbe plaintiff of all tbe lands involved in tbis controversy and states tbat tbe cloud upon tbe title consists of certain tax deeds — one issued on tbe 9th day of June, 1899, and recorded tbe same day in tbe office of tbe register of deeds of Barron county, tbe other issued on tbe 15th day of July of tbe same year and likewise recorded. Tbe tax deeds were issued on tax certificates of 1896 for unpaid taxes for 1895, and it is alleged tbat they are void for want of a statement of tbe lands upon wbicb taxes were returned as delinquent by tbe county treasurer, for want of a sufficient publication, for want of a sufficient posting of notices of sale, and because tbe taxes assessed upon tbe lands exceeded tbe amount authorized by law. Tbe complaint further states: “Tbat for said reasons and others said certificates were void, and tbe tax deeds issued to tbe defendant thereon were null, void, and irregular.” Plaintiff tendered defendant tbe amount for wbicb tbe lands were sold for taxes with interest, wbicb was rejected. Tbe complaint describes tbe lands and demands tbat tbe two tax deeds be “vacated, set aside, and declared null and void.” Tbe answer alleges tbe execution and recording of tbe tax deeds and admits the refusal of tbe defendant to execute a quitclaim deed as requested by plaintiff when tbe tender of tbe amount of tbe taxes and interest was made.</p> <p>From tbe proof tbe court found tbe following facts: On July 19, 1882, a mortgage due June 15, 1887, was executed by Andrew Hazelton to tbe Hekla Fire Insurance Company, a domestic corporation, on part of tbe lands in controversy. On December 27, 1883, a mortgage due December 15, 1886, was executed by Oscar B. Hoyt to tbe same company on certain other of tbe lands included in tbis controversy. On April 20, 1885, William Craddock executed a mortgage due June 15, 1890, on certain of these lands to tbe same company. Tbe Craddock mortgage was assigned February 20, 1890, to tbe American Mortgage Security Company, a Minnesota corporation. Upon default tbe Hazelton and Hoyt mortgages were foreclosed by action and tbe lands were sold to tbe plaintiff, tbe Hekla Company, but tbe sales were not confirmed by tbe court. On February 20, 1890, tbe Hekla Company conveyed tbe premises covered by tbe Hazelton and tbe Hoyt mortgages to tbe American Mortgage Security Company. Upon default in tbe payment of tbe Craddock mortgage tbe mortgage was foreclosed by advertisement and sold to E. A. Hendrickson, and a sheriffs deed was issued to bim. On April 19, 1892, Hendrickson conveyed to tbe American Mortgage Security Company. On October 1, 1896, tbe American Mortgage Security Company conveyed all of tbe lands to tbe Local Investment Company, a Minnesota corporation. Neither of tbe Minnesota companies bas filed its articles of association with tbe secretary of state of Wisconsin. On October 2, 1896, the Local Investment Company mortgaged these lands to secure tbe payment of a note for $1,500, due in five years with interest at sis per cent. In 1900 plaintiff became tbe owner of tbe note and mortgage, and on September 25th of that year tbe Local Investment Company executed to bim a quitclaim deed.</p> <p>Tbe court found tbe following facts pertaining to tbe sale of tbe lands for taxes and tbe issuance of tax deeds for delinquent taxes: On June 9, 1899, a tax deed to tbe lands covered by tbe Hazelton and Hoyt mortgages was issued to tbe defendant. This was recorded tbe same day. On July 15, 1899, a tax deed was issued and recorded by defendant to tbe lands covered by tbe Craddock mortgage. Tbe lands are all wild and unoccupied. Tbe treasurer’s tax sale notice was published by five insertions. Tbe county treasurer’s affidavit of tbe posting of notices specifies six places, but in bis testimony before tbe court be stated that be bad personally posted but three and that be bad no personal knowledge as to whether tbe other notices were posted as stated. Tbe sum of twenty-five cents as advertising fee and tbe sum of twenty-five cents as a certificate fee and five per cent, of tbe amount of tbe tax were included in tbe amount for which each forty-acre tract was sold. In tbe proofs of publication and posting tbe town and range numbers are so indistinct that they cannot be ascertained. Tbe court found tbe amounts for which the lands were sold and that plaintiff had tendered payment of the taxes and interest. The court held that the defendant’s tax deeds were void for irregularities not going to tbe groundwork of tbe tax, and that plaintiff should recover, and as a condition of judgment should, within ninety days'from August 25, 1903, pay the defendant $80 for taxes, interest, and fees, with interest thereon.</p> <p>The judgment recites that, on defendant’s refusal to accept the amount found by the court as due defendant, plaintiff had deposited it with the clerk of the court, and adjudges that tbe defendant release to the plaintiff all his right, title, or claim asserted at tbe commencement of the action by virtue of tbe tax deeds, and declares defendant’s deeds to be null, void, and of no effect. The judgment does not in express terms determine that plaintiff is the- owner of, or that he has an interest in or claim to, the lands in question. This is an appeal from such judgment.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: A. J. ViNJE, Circuit Judge.</p> <p>This is an action to recover $125 as the value of a horse belonging to the plaintiff and killed by a locomotive of a passenger train running upon the tracks of the defendant at the place alleged February 15, 1903. The complaint alleges, in effect, that the horse, on the day and year named, “without any fault or negligence on the part of the plaintiff, escaped from a field adjoining said railroad through” a defective fence which the defendant had failed and neglected to keep up and' maintain, and had negligently allowed and suffered to become unsafe and out of repair, and went upon the track of said railroad and was there run against by defendant’s locomotive and killed, to the damage of the plaintiff in the amount stated.. The defendant answered, by way of admissions, denials, and' counter allegations, to the effect that the injuries to the plaintiff’s property alleged in the complaint, if any, were caused by the carelessness and negligence of the plaintiff, and not by any fault, neglect, or negligence of the defendant, its agents ox-servants.</p> <p>At the close of the tidal the jury returned a special verdict to the effect (1) that the place where the plaintiff’s horse went upon the defendant’s property was not within the limits of its-depot grounds at ITines, and (2) that they assessed the plaintiff’s damages at $125. From the judgment entei'ed thereon for the amount stated, with $29.40 costs and disbursements,, the defendant appeals.</p>

<p>Appeals from an order and a judgment of the circuit court ■for Douglas county: A. J. ViNJE, Circuit Judge.</p> <p>This action was brought to recover damages for personal injuries. The action was commenced in the superior court of Douglas county, tried there, and a verdict returned in favor of •the plaintiff, which was set aside on motion of defendant on the ground that it was against the evidence. Afterwards a change of venue was taken to the circuit court for said county, where the case was again tried and resulted in judgment for plaintiff. Upon appeal to this court the judgment was reversed and a new trial granted on account of error in the admission of evidence. Hughes v. G., St. P., M. & 0. P. Go. 122 Wis. 258, 99 N. W. 897. The third trial resulted in a verdict and judgment for plaintiff, from which this appeal was taken. The plaintiff taxed the costs of the three trials, .and upon retaxation the court struck out the costs of the two former trials, and ordered judgment for plaintiff for the •amount of damages found by the verdict and the costs of the last trial. The case is now here on appeal by defendant from the judgment in favor of plaintiff, and on appeal by plaintiff from the order disallowing the costs of the two former trials. A sufficient statement of the case on defendant’s appeal will be found in Hughes v. Q., St. P., M. & 0. B. Co., supra.</p>

<p>Appeal from a judgment of the circuit court for Douglas ■county: A. J. Vinje, Circuit Judge.</p> <p>A consolidated action to foreclose a mortgage and obtain a judgment enforcing the personal liability of one claimed to be liable for tbe mortgage indebtedness to tbe plaintiff as a co-promisor upon tbe note secured by tbe mortgage and in tbe mortgage as well.</p> <p>April 15, 1890, J. T. Murphy, D. 0. Sullivan, M. Mur-pby, and W. B. Fanning mortgaged lands owned by them to tbe Superior & Duluth Loan & Debenture Company to secure •tbe payment, three years after tbe date of such mortgage, of a $5,000 note of tbe mortgagees with interest thereon at tbe rate of eight per cent, per annum, payable semiannually. The mortgage contained all the provisions common to such instruments, and also this:</p> <p>“And tbe said parties of tbe first part, for themselves and their heirs, executors, administrators, and assigns, hereby covenant and agree to and with tbe said party of tbe second part, its successors and assigns, as follows, to wit: that they will pay to tbe said party of tbe second part, its successors and assigns, tbe sum of money above specified, with interest accruing thereon, at tbe times and in tbe manner stated in said note and coupons, together with all costs and expenses, if any there be.”</p> <p>September 18, 1893, tbe mortgage and note were for value •assigned to tbe Northern Trust Company. October 14, 1896, such company for value paid by tbe plaintiff and at bis request assigned tbe note and mortgage to Mary A. McNealy, and on October 19th she assigned tbe same to him. Tbe assignments were recorded, except tbe last. Tbe one to Mary A. McNealy was made solely for tbe benefit of plaintiff. She was used as a convenient instrument to better preserve, as be ■supposed, bis rights as against bis co-sureties. April 16, 1890, the mortgagors conveyed tbe mortgaged premises to W. R. O’TIearn, be assuming and agreeing to pay as part consideration for the property tbe mortgage indebtedness. April 18, 1890, he conveyed a two-thirds interest in the premises to* R. 0. J ones and Edgar A. Le Clair, they as part consideration therefor assuming’ and agreeing to pay a corresponding-proportion of the mortgage indebtedness. June 5, 1890, said Le Clair conveyed his interest in the premises to said O’Hearn and Jones, they assuming and agreeing as a part consideration therefor to pay one third of said indebtedness. Subsequent to O’Heam’s taking an interest in the property he, acting for himself and Jones, April 16, 1890, paid and took up-some past-due interest coupons. April 11, 1893, O’Hearn on behalf of himself and Jones, they being then sole owners of' the mortgaged premises, applied to the holder of the note and mortgage for an extension of the time of payment for' one-year, which application was granted. The transaction in respect thereto consisted of a mere request for an extension and consent thereto, the agent of the holder of the note, assuming to act pursuant to such request and consent, indorsing on the back of the note these words :</p> <p>“This note, by mutual agreement, is extended for one year-from April 15, 1893, at 8 per cent, payable semiannual, interest having been paid to April 15, 1893, and all coupons surrendered.”</p> <p>Later, after the Northern Trust Company became the-owner of the securities, default was made in respect to both principal and interest, whereupon under threat of collection-thereof against the property of the plaintiff being forced, and' upon the promise of J. T. Murphy°to pay his proper proportion as soon as he was able to do so, plaintiff paid the amount due on the note and caused the securities to be assigned to-Mary A. McNealy, he being advised by counsel to that course as the one best calculated to protect his rights against other-parties liable upon the paper. On May 28, 1902, he commenced an action against J. T. Murphy to recover the proportion it was supposed he should bear of the burden of discharging the mortgage indebtedness, alleging that plaintiff’s other-■co-makers on the note were nonresidents or insolvent. July .28, 1902, plaintiff commenced an action against all persons interested in the real estate and all those who were supposed hy the plaintiff to be personally liable for the mortgage indebtedness or any part thereof, to foreclose the mortgage and enforce such personal liability. The two actions were consolidated and tried as one.</p> <p>The court, upon the evidence, found facts as above indicated, and also all facts necessary to a judgment of foreclosure in the action, and the following: The only party appearing and defending in the action was J. T. Murphy. Interest was paid upon the note to September 1, 1895. After plaintiff purchased the note and mortgage J. T. Murphy on several •occasions promised to pay his proper proportion but neglected to do so. That resulted in the commencement of the two actions. The parties liable, or that were liable, for the payment of the mortgage indebtedness in addition to the plaintiff are J. T. Murphy, D. C. Sullivan, M. Murphy, W. R. O’Hearn, R. C. Jones, and Edward Le Clair. D. C. Sullivan and M. Murphy are nonresidents of the state and have been for five or sis years. Defendants O’Hearn and Le Clair are insolvent and have been since 1893. Said Jones was insolvent from the year 1893 to the time of his death, which occurred prior to the commencement of this action. On April 18, 1904, there was due on the note and mortgage, including back ■taxes, $9,212.01. The amount which plaintiff paid for the note and mortgage, with "interest thereon from the time of such payment to the filing of the finding, less $100 paid to him for interest, was $1,511.17. O’Hearn and Jones gave no consideration for the extension of the note granted at their ■request. The summons and complaint against J. T. Murphy, in the action for contribution, was served upon him within six „years after Fa/iming paid or purchased the note. The summons and complaint in the foreclosure action was served upon ■■said Murphy more than six years after such payment. The two actions were consolidated at Murphy’s request without prejudice to the date of the commencement of the action as regards his personal liability being considered to be May 28, 1902.</p> <p>On such findings the court found as matters of law, that by reason of the provisions of the deeds to which O’TIearn, Jones, and Le Clair were parties they became principal debtors and J. T. Murphy, M. Murphy, Sullivan, and Fanning sureties upon the note as between the makers thereof and themselves; that there was no binding contract extending the time for the payment of the note; that Farming was entitled to a foreclosure judgment, as prayed for in the complaint, to reimburse him for the amount which he paid for the note and mortgage, and six per cent, interest thereon from the time of such payment, and all sums paid by him for taxes, with interest thereon, and solicitor’s fees and costs and disbursements in the action, and further entitled to a judgment for deficiency against defendant Murphy for one half of the amount of whatever deficiency there might be. Judgment was entered accordingly, from which defendant Murphy appealed.</p>

<p>Appeal from a judgment of the circuit court for Washburn county: A. J. ViNje, Circuit Judge.</p> <p>Action in deceit to recover tbe sum of $194.25 claimed to have been paid by plaintiff to defendant by reason of certain false representations. Plaintiff and defendant having, prior to June 6, 1903, been copartners in running a country store, made settlement on that day, by wbicb plaintiff bought out the defendant, taking over all the stock, credits, business, and assuming all the debts, and paid defendant $600, the amount found due on that settlement. Defendant had been treasurer of a local lodge, called I. S. W. A., and from time to time had placed the moneys coming into his hands as such treasurer with the moneys of the firm, placing memorandum slips in the cash drawer. Two days after the settlement he, as alleged, represented to plaintiff that there were $255.50 of such moneys which had been deposited with the cash drawer of the business and had not been repaid, and which had been due by the firm to the defendant as treasurer, whereby plaintiff was induced to recognize such liability by crediting the lodge $61.25 upon rent owing by it to the firm and by paying to the defendant the balance of $194.25. The complaint alleges that the representation was false, by reason of the fact that the defendant had previously withdrawn all moneys of the lodge deposited in the cash drawer. Answer was a general denial with some explanation as to the circumstances under which the moneys of the lodge were deposited with the firm. At the close of the trial the jury found a verdict of no cause of action, upon which, after denial of motion for a new trial, judgment was rendered in favor of defendant for costs, from which plaintiff appeals.</p>

<p>Appeal from a judgment of the circuit court for Eock ■county: B. F. DuNwiddie, Circuit Judge.</p> <p>This is an action to quiet title to a strip of land in the city of Beloit. It is without dispute that the lands in question are within what is known as Brooks’s addition to the city, though no plat has been recorded. It appears that the northerly boundary of plaintiff’s and defendants’ land is E street of such subdivision and that the center line of Brooks street is the southerly boundary. The center lines of these two streets intersect and make the northwest corner of the block In which the lands lie. The defendants own the northwest corner of this block and plaintiff owns the lands adjoining it on the east. East of plaintiff’s land lies what is known as the Oliver lot. The following facts were found by the court:</p> <p>On March 28, 1872, S. S. Northrup purchased under tax •deeds from Eock county the “northwest triangle in northwest comer of northwest quarter of southwest quarter of section number 35, town 1, range 12, one-half acre, Brooks’s addition, city of Beloit.” On June 27, 1877, Northrup and wife conveyed the same description by quitclaim deed to Charles New-burgh, who on October 4, 1881, conveyed by quitclaim deed to Elizabeth Sheard the following description: “The west triangle in Brooks’s unrecorded addition to Beloit, being bounded on the north by E street, on the southwest by Brooks street, and on the east by lot of E. B. Stanton, containing half an acre, more or less.” At the time of this conveyance the east line of the land thus conveyed was established and located by Charles Newburgh and Elizabeth Sheard, the purchaser of the adjoining lot, and a fence was placed and located on snob line by tbem. Elizabeth Sbeard at the same time built and located a barn and other structures on the land which had been transferred to her by Newburgh, the structures bordering on the line so established as a division line, and she and her successors in title, including defendants, held possession and openly occupied this land up to this division fence and line to the exclusion of all other persons until the early part of the year 1902. Erom the date he conveyed to Elizabeth Sheard, Charles Newburgh continued under the Northrup deed in open and exclusive occupancy of the remaining part of the land held by him up to this division line and fence as the boundary line, claiming it as owner and holding possession under such claim to the exclusion of all other persons. This land is now owned by the plaintiff.</p> <p>It also appears that Newburgh obtained a tax deed on this lot from Bock county in 1885 on the certificate of sale of 1819 for delinquent taxes for 1818. This deed describes the premises as “ tW acres, bounded on the north by E street, south by Brooks street, east by Oliver, west by Charles Newburgh, Brooks’s addition to Beloit.” He conveyed to George J.' Conry in 1886, who occupied it until he transferred his interest and possession in 1891 to the plaintiff, who has occupied it continuously and exclusively until she was disturbed in it by the defendants in the early part of 1902.’</p> <p>The appeal is from a judgment in favor of the plaintiff.</p>

This action was commenced October 10, 1904, to recover $400 and interest thereon at six per cent, per annum from March 31, 1904, being the amount due upon eight promissory notes, each executed by the defendant, wherein he promised to pay to this plaintiff $50, with interest thereon at six per cent, per annum, at the First National Bank of Milwaukee, due respectively May 15th, June 1st, June 15th, July. 1st, July 15th, August 1st, August 15th, and September 1st, all in the…

<p>Appeal from orders of the circuit court for Rock county: T>. F. Dunwiddie, Circuit Judge.</p>

<p> Highways: Injury from obstruction near traveled trade: Contributory negligence: Knowledge of defect: Deviation from traveled way: Instructions to jury: “Ordinary care.” </p> <p>1. In an action for injuries sustained by plaintiff while driving at night by reason of the wheels of his vehicle striking an obstruction within the limits of the highway and close to the traveled track, it appeared that plaintiff knew of the obstruction, but there was evidence tending to show that it was so dark that neither the obstruction nor the exact course of the horse could easily be observed, that he supposed he had passed the obstruction, and that he had been engaged in conversation with a friend who was following in another vehicle. Held, that it was a question for the jury whether plaintiff was negligent in not paying more efficient attention to the defect.</p> <p>2. An instruction in such action, that “if a traveler leaves a traveled track which is in a reasonably safe condition, without cause or necessity therefor, and goes outside thereof, and thereby receives an injury from some cause outside of the • traveled track, he will he deemed guilty of contributory negligence,” was misleading and erroneous. Such rule is applicable only to the case of an actual leaving of the traveled way — voluntarily and without reasonable cause turning aside and going wholly or substantially out of such way, — resulting in an injury by reason of the existence of an object not rendering the traveled track itself unsafe.</p> <p>3. A definition of ordinary care as “such care as persons 'of ordinary prudence and intelligence exercise under the same or similar circumstances,” is held not to have been erroneous because of the failure to use the word “usually” or other word of similar import before the word “exercise,” since the expression used suggests by reasonable, if not necessary, inference the idea of the usual conduct of such persons.</p> <p>4. Failure to instruct the jury as to the burden of proof is not error whei’e m¡> instruction on the subject is requested.</p> <p>6. Eefusal to give requested instructions upon subjects fairly covered by the general charge is not error.</p>

<p> Slander: Pleading: Meaning of words spoken: Knowledge or understanding of hearers: "Variance: Proof of words alleged: Damages. </p> <p>1. In a complaint for slander alleging tliat defendant liad said concerning plaintiff, who had assisted at the hirth of a child: “That child [the dead child of W. and M. K. meaning] has been murdered,” the words “the dead child” do not assert that the child was horn dead, hut merely mean that it was dead when the alleged slanderous charge was made.</p> <p>2. To defeat an action for slander on the ground that the hearers of the words spoken had knowledge rendering them nonslan-derous, it must he shown that all the hearers had such knowledge.</p> <p>3. Persons who heard the alleged slanderous words spoken cannot testify as to their understanding or opinion of the meaning of such words. The meaning actually conveyed by the words spoken is to he determined by the jury from the words themselves in the light of the colloquium and surrounding circumstances.</p> <p>4. In an action for slander it is not necessary to prove that the precise words alleged in the complaint were spoken, hut proof of tlie speaking of substantially the same words as those alleged will suffice.</p> <p>5. An award of $300 as compensatory damages for a charge of child murder against a woman of apparent respectability and good fame who had assisted at the birth of the child in question, is held not excessive.</p> <p>6. Evidence that defendant, a physician, had charged plaintiff with murdering a child at whose birth she had assisted; that he had said he wanted to “put a stop to her going around doctoring; ” that he had reiterated the charge in the presence of several people, and, upon demand, had refused to retract it — is held sufficient to sustain a conclusion of actual malice which would justify an award of punitory damages.</p>

<p>Appeals from a judgment of the circuit court for Rock county: James J. Dick, Judge.</p> <p>This is an action for the recovery of the proceeds of a benefit certificate issued by the Supreme Lodge of the Knights of Honor to George Covert, now deceased. The facts involved are as follows:</p> <p>The Supreme Lodge of the Knights of Honor is a fraternal insurance corporation organized under the laws of Missouri and licensed to do business in Wisconsin. In September, 1881, this association issued the following benefit certificate:</p> <p>“Ho. 75,421. $2,000.00.</p> <p>“Knights oe Honoe Benefit Ceetieicate.</p> <p>“The Supreme Lodge, Knights of Honor, issues this certificate to George Covert, a member of Washington Lodge, Ho. 329, located at Clinton, Wisconsin, upon evidence received from said Lodge that he has lawfully received the degree of Manhood, and is a contributor to the Widows’ and Orphans’ Benefit Eund of this Order; and upon condition that the statements made by said member in his petition for membership, and the statements made by him to the medical examiner, be made a part of this contract, and upon condition that said member complies with the laws, rules, and regulations now governing this Order, or that may hereafter be enacted for its government, and is in good standing at the time of his death, the said Supreme Lodge hereby agrees to pay out of the Widows’ and Orphans’ Benefit Eund to his legal heirs the sum of Two Thousand Dollars in accordance with and' under the laws governing this Order, upon satisfactory evidence of the death of said member and the surrender of this certificate. Provided, that this certificate shall not have been surrendered by said member or canceled at his request and another certificate have been issued in accordance with the laws of this Order.</p> <p>“In witness whereof, the Supreme Lodge, Knights of Honor, has hereunto affixed its seal and caused this certificate to be signed by its Supreme Dictator and Supreme Reporter, at Wooster, 0., this 19th day of September, 1881.</p> <p>“I accept this certificate upon the conditions herein named.</p> <p>“George 'COVERT.</p> <p>“[Signature of Member.]</p> <p>“W. B. Hoke, Supreme Reporter.</p> <p>“Witnessed and delivered in the presence of O. L. Hanson, Dictator, R. W. Cheever, Reporter, of Washington Lodge, Ho. 329, K. of H.</p> <p>“This certificate must be surrendered whenever the brother changes from a full-rate to a half-rate assessment or from a half-rate to a full-rate assessment.</p> <p>“J. 0. Plumer, Supreme Reporter.”</p> <p>At the time of George Covert’s death, January 9, 1904, he was the holder of this certificate and had complied with its conditions respecting payment of assessments and other re■quirements, and the certificate was then in force. Proof of death was duly made, and the lodge admitted liability on the certificate for the full amount of $2,000 to whomsoever it was •due under the contract and the rules and regulations of the association. Sec. 1, art. 9, of the lodge’s constitution and bylaws is as follows:</p> <p>“Section 1. Application for. — Every lodge shall forward to the Supreme Reporter all applications for beneficial membership immediately after the applicant receives the degree. Each applicant shall enter upon his application the name or •names and relationship or dependence of the members of his family, or those dependent upon him, to whom he desires his benefits paid, and the same shall be entered in the benefit certificate according to said direction. Ho will shall be permitted to control the appointment or distribution of, or rights of any person to, any benefit payable by this Order; nor shall the member have any power to sell, assign, or hypothecate his benefit certificate, or to change his beneficiaries in any way other ■than that prescribed by the laws of this Order.”</p> <p>The deceased in his will, which was duly probated, disposed of his real and personal estate. Whether the will covered the proceeds of this benefit certificate was contested by his children. This action was commenced by them in February, 1904, to recover the proceeds of the certificate. Thei*eafter the lodge paid the sum of $2,000 into court to abide the result of the suit, and Hie action was dismissed as to it. The circuit court awarded judgment, adjudging that the children and the widow of the deceased were entitled to the proceeds of the certificate in equal parts, as legal heirs under the terms of the contract and the constitution and by-laws of the lodge, and denied the widow’s claim to the whole of the proceeds under the will of the deceased. The defendant Jennie 0overt„ widow of the deceased, and the plaintiffs, his children, separately appeal from the judgment so entered.</p>

Ebeob to review a judgment of the circuit court for Ean Claire county: James O’Neill, Circuit Judge. The plaintiff in error, having been convicted of murder in the first degree by the circuit court for Eau Claire county on January 17, 1899, on February 3, 1905, procured to be issued a -writ of error from this court to review said judgment, in response to which a record was filed in this court July 6, 1905.

<p>Appeal from a judgment of tbe circuit' court for Ozaukee county: James J. Dioe, Circuit Judge.</p> <p>John Meyer, of tbe town of Eredonia, Ozaukee county, died April 28, 1902, at tbe age of eigbty-two, leaving, bim surviving, bis widow and tbe following children as bis only beirs at 'law, namely: Tbe plaintiff Andrew Meyer, Micbael Meyer, •Joseph Meyer, Erank Meyer, Charles Meyer, Elizabeth Eder, and tbe defendants Theresia. Arends and John Meyer. This action was commenced in August, 1903, by tbe plaintiff, as administrator of tbe estate of John Meyer, deceased, against tbe defendants, a son-in-law, daughter, and son of decedent, to compel an accounting and discovery of property claimed to belong to tbe estate of Jobn Meyer, deceased, in tbe bands of tbe defendants and alleged to have been obtained by them through fraud, and for a delivery of such property to tbe plaintiff as administrator of said estate. Tbe complaint alleges that in April, 1898, tbe deceased transferred to bis son, Erank Meyer, bis farm worth about $6,000 and personal property thereon of tbe value of about $1,000, Erank agreeing to pay to each of bis brothers $150 and to bis two sisters $200 each, which sums be paid before tbe commencement of this action; that deceased, at tbe time be deeded said farm to Erank, reserved to himself and bis wife three rooms in tbe dwelling bouse on said farm for tbe term of their natural lives, and tbe use of a part of tbe garden, and took a bond from Erank in tbe sum of $1,000 to secure himself and wife in tbe enjoyment of said rights; that after tbe disposal of said farm to Erank be still bad property amounting to about $40,000; that tbe defendants, for •the purpose of getting possession of tbe money and property of deceased for themselves and preventing tbe other children from receiving any share thereof, fraudulently entered into a conspiracy to carry out such scheme; that tbe defendants in pursuance of said scheme induced tbe deceased to leave tbe rooms occupied by bim on tbe farm deeded to bis son Erank and go to live witb the defendants John and Theresia Arends,. where he and his wife lived for a few weeks, and thereafter-were taken by defendants to live with defendant J ohm Meyer,. with whom they remained until April, 1898; that about the last-named date defendants, who exercised undue influence over deceased, and to better accomplish the fraudulent purpose-of getting possession of his property without consideration, induced deceased to build with his own money an addition to the dwelling house of defendant John Arends at an expense of about $500, and which deceased occupied until his death; that the defendant Theresia, Arends exercised undue influence over deceased and he became in great fear of her and defendant John Arends and their family; that deceased was mentally incompetent to do any business during the month of April, 1902,. and that during said month he had in his possession and belonging to him $20,000 in money, besides other property in-the shape of notes, mortgages, and securities; that in April, 1902, and when deceased was mentally incompetent to do any business, the defendants fraudulently persuaded and induced him to make a pretended gift of all his property, money, and securities to them, and that said money and securities were then taken away by defendants; that within two years before-the death of deceased the defendants, by means of undue influence and in carrying out their fraudulent scheme, induced deceased to pay out of his money a mortgage'amounting to. about $3,500 on property owned by defendant John Arends; that by such undue influence said defendants induced deceased to give them other large sums of money or securities, which plaintiff believes to amount to upwards of $5,000; and that all of said properly, money, and securities were obtained by defendants as a result of such fraudulent scheme and purpose and by virtue of duress and undue influence. The answer denies the material allegations of the complaint. The case was tried upon the issues raised, and the court found in. favor of defendants and ordered the complaint dismissed upon the merits with costs. From the judgment entered in favor •of defendants this appeal was taken.</p>

S. Griswold, Judge. This is an action of ejectment for two strips of land hereinafter described.

<p> fraudulent conveyances: Findings: Evidence: Unpaid purchase money: Rights of general creditors: Inadequacy of price: Charging purchaser as trustee: Taxation of costs: Separate bills: Discretion. </p> <p>1. Findings of the trial court, to the effect that a conveyance of land was not made with intent, on the part of either grantor or grantee, to hinder, delay; or defraud creditors of the grantor, and that it was not induced by fraud or duress, are held not to be against a clear preponderance of the evidence.</p> <p>'2. Where a sale of land is valid the purchaser is not bound, upon learning of a debt of the vendor to a general creditor, to withhold for the protection of such creditor any part of the purchase money which may be unpaid. If a general creditor would reach purchase money due on such a sale he must impound it by garnishment or other similar process.</p> <p>'3. Assuming the existence of a rule by which, when property is sold for a price known by both vendor and vendee to be less than its real value, the conveyance may, under some circumstances, be held voluntary to the extent of the difference between value and price and the vendee be charged with such difference as a trustee for the vendor’s creditors, yet such rule does not apply where no actual gift of such difference was understood or intended, no antecedent debt was paid by the transfer, and there was no fraudulent purpose on the part of the vendor.</p> <p>■4. Such rule, if it exists, does not apply where a farm which the trial court found to be reasonably worth $16,200 and for which the vendor, when in no haste to sell, was willing to accept $15,000, was sold for $13,000 at a time when he was anxious to make an immediate sale, to a purchaser 'who was unwilling to take it except at a price so low that he could be sure of selling promptly at a profit. In that situation there was no such inadequacy in the price paid as would warrant the court in setting aside the bargain made by the parties honestly and with no fraudulent intent.</p> <p>-5. Taxation of a separate bill of costs in favor- of each of two defendants, involving duplication of items of “retainer” and “brief,” was not error, although such defendants appeared by the same attorney, where their defenses involved different issues of fact and questions of law and each was entitled to a judgment in his favor individually.</p> <p>6. Taxation against plaintiff of the costs of all the findings covering the facts as to the fraud alleged in the complaint and also as to the fraud and duress alleged in a cross-complaint of certain defendants, is field not to have been an abuse of discretion, where all of the facts and circumstances found had a legitimate bearing upon the issues joined on the complaint.</p>

<p>Street railways: Urban and interurban trafile: Bights of abutting-owners: Condemnation: Measure of damages: Instructions to , jury: Appeal: Immaterial errors: Exceptions.</p> <p>1. A traction company, authorized- to construct and operate a street railway upon a certain city street and to operate an interurban street railway business over such street, constructed a double-track railway and operated thereon a combined city and interurban business, all ears running as interurban cars but affording at the same time transportation to persons within the limits of the city. The company instituted proceedings to condemn-all rights of property which would entitle owners of lots abutting on said street to damages by reason of the construction, maintenance, and operation of said railroad. Held, that for such appropriation of the street the lotowners were entitled to-compensation under the same rules as in case of a taking for a commercial railroad.</p> <p>2. The measure of damages in such a case is the difference, if any, at the time of filing the award, between the market value of' the premises with the railway located upon it and the market value at that time freed from the use and burden of the railway.</p> <p>3. An erroneous instruction in this case, to the effect that the measure of damages was the difference between the market value just before th'e company commenced operating its railway in 1898 and the market value at the time of the award in 1904,, and the admission of evidence of value in 1898, are held not to have been prejudicial, it appearing that the market value-in 1898 was the same as it would have been in 1904 without the burden of the railway.</p> <p>4. Instructions to the effect that plaintiff was not entitled to any damages by reason of the operation of the city street railway business in the street will be presumed to have been followed by the jury.</p> <p>5. A general exception to the refusal to give a large number of requested instructions covering a number of distinct propositions: is not available on appeal.</p>

Dick, Circuit Judge. This action was commenced in the county court of Wau-kesha county against the defendant Loehr for the foreclosure of a land, contract, executed on the 14th day of June, 1902, upon real estate and personal property situate in the county ■of Waukesha. The venue of said action was changed to the circuit court for Waukesha county,- where the action was tried.

<p> •Sales: Implied warranty of fitness: Acceptance: Waiver of defects. </p> <p>1. Upon a sale of chattels there was no implied warranty of fitness, although the vendor was the manufacturer and the vendee had stated the purpose for which the goods were bought, where the vendee did not trust to the skill, judgment, or experience of the vendor, but gave a written order specifically describing the goods wanted.</p> <p>2. Where a purchaser of lumber accepted and used it without making objection to the quality thereof, or notifying the vendor that it would not be considered as satisfying the contract, until about eight months later, he thereby waived the defects, if any, and became answerable for the purchase price.</p>

<p>Appeal from a judgment of the circuit court for Wau-kesha county: James J. Dice, Circuit Judge.</p>

Dice, Circuit Judge. In proceedings instituted by respondent for tbe condemnation of certain lands required for its right of way the commissioners appointed to make tbe appraisal, in due form of law, awarded to Doy W. Putney as owner of tbe fee $140, that to include tbe inchoate dower right of his wife; to A. S. Putney six cents; and to J. W. Putney six cents. Respondent appealed to the circuit court from the award to Doy W. Putney.

<p>Appex\x from an order of the circuit court for Dodge county: James J. Diaic, Circuit Judge.</p> <p>Frederick Conrad Sander was bom February 1Y, 1814, in Germany, be being the illegitimate son of Caroline Weite-meyer and August Sander. He died at Reeseville, Wisconsin, in the year 1896. He left a last will and testament, as follows:</p> <p>“I, Frederick Sander of the village of Reeseville, Dodge county, state of Wisconsin, being of sound mind and memory, do make, publish, and declare this my last will and testament — hereby revoking all former wills, bequests, and devises by me made.</p> <p>“First. It is my will that all my just debts and funeral expenses and all charges be paid out of- my personal property.</p> <p>“Second. I give and bequeath to Christian Reinhard of Reeseville, Dodge county, Wisconsin, as trustee, all of my moneys and property of whatsoever kind, to hold in trust for the benefit and support of my wife, Mary Sander, paying her all the interest and income thereon annually and keeping all the capital invested, no part of the principal to be used.</p> <p>“Third. I give and bequeath to the Evangelical Lutheran Emmanuel’ Church of Reeseville, Dodge county, Wisconsin, the sum of six hundred dollars ($600.00), payable on my death.</p> <p>“Fourth. I give and bequeath all my property, after the death of my said wife Mary Sander, to my nearest blood relations in equal shares.</p> <p>“Fifth. I do hereby constitute and appoint Christian Bein-hard of Beeseville, Dodge county, Wisconsin, executor of this my last will and testament.</p> <p>“In witness whereof I have hereunto set my hand and seal this 17th day of June, A. D. 1889.</p> <p>“FREDERICK Sawder. [Seal.]</p> <p>“Signed, sealed and published and declared by the said Frederick Sander as and for his last will and testament, in the presence of us, who, at his request in his presence and in the presence of each other, have hereunto subscribed our names as attesting witnesses. The words Ferdinand in the first line of this will and in the second line of this attestation being stricken out and the name Frederick being interlined in their stead before signing by said testator.</p> <p>“Peter Beinhard, Jr.</p> <p>“Edward Wobig.</p> <p>“Be it remembered that I, Frederick Sander, of the village of Beeseville, county of Dodge, and state of Wisconsin, being of sound mind and memory, do make this codicil to my last will and testament, which said last will being made by me June (17th) seventeenth, A. D. 1896.</p> <p>“First. It is my will that on the death of my wife, Mary Sander, the sum of one thousand dollars ($1,000.00) be paid to Albert Loesch of the village of Beeseville, county of Dodge, and state of Wisconsin, and the sum of two hundred ($200.00) to Fred Stumer of Lowell, Dodge county, Wiscon-' sin, as bequests by me to them made.</p> <p>“Second. All the rest of my property that remains on the death of my said wife, after satisfying the said bequests, and paying all necessary and legal charges, I give and bequeath to my nearest blood relations, if there be any; but if there be none, I then give and bequeath the same to the said Albert Loesch of Beeseville, Dodge county, Wisconsin, and Mrs. Emily Stumer of Lowell, Dodge county, state of Wisconsin,, in equal parts.</p> <p>“In witness whereof, I have hereunto set my hand and seal this 1st day of August, A. D. 1896.</p> <p>“F. SaNder. [Seal.]</p> <p>“Signed, sealed, published and declared by the said Frederick Sander as and for a codicil to his last ydll and testament in the presence of us, who at his request, in his presence, and in the presence of each other have hereunto subscribed our names as attesting witnesses.</p> <p>“Edward Wobig.</p> <p>“Peter Eeinhard, Jr.”</p> <p>The will was duly admitted to probate in the county court of Dodge county. Thereafter such proceedings were had in such court, in the due administration of the estate under the will, that an order was entered to the effect that descendants of an illegitimate brother of the testator, — represented in such proceedings by Walter Weaver, consul of the German empire, of which such descendants were residents and citizens, and by their authority under a duly executed power of attorney,— were not blood relatives of the deceased as that term was used in the will; that the testator left no other relatives and, therefore, that Albert Loesch and Lviily Stumer were entitled to the residuum of the estate under the second subdivision of the codicil. Weaver in his own name, but for. the benefit of the defeated claimants, appealed to the circuit court from such decision. In such court a motion was made on behalf of Albert Loesch and Emily Stumer for a dismissal of the appeal, first, because the same was not taken by the real parties in interest, and second, because the same was not taken in the manner and form as required by law. The motion was denied. A hearing was had upon the merits resulting in findings of fact to this effect: The deceased was the illegitimate child of Caroline Weitemeyer, who predeceased him. Emilie 'Weite-meyer, née Yoss, Auguste Weitemeyer, Wilhelm Weitemeyer, Johann Christian Heinrich Weitemeyer, August Christian Fritz Weitemeyer, Christian Conrad August Weitemeyer, Wilhelmine Augusta Schmidt, née Weitemeyer, and Minna Emilie Weitemeyer are the legitimate children of an illegitimate son of the mother of the deceased. Albert Loesch and Emily Stumer are not blood relatives of the testator. He had no children and left no other relatives of his own blood than the descendants of his illegitimate brother. He used the term “blood relatives” in bis will'with inference to sucb descendants. On sucb facts judgment was ordered and rendered reversing tbe order appealed from, and adjudging tbe residuum of tbe estate under tbe second clause of tbe codicil to sucb descendants. Emily Stumer and Albert Loesch appeal.</p>