Volume 127 — Wisconsin Reports

<p>(1-12) Municipal corporations: Injuries from, defective sidewalks: Primary liability of lotowners: Statutes: Construction: Repeal by implication: Notice of injury: Presentation of claimr Statute of limitations: Adoption of general charter provisionsr Amendment. (13-17) Appeal: Reversal of judgment: New-trial, when ordered: Direction of judgment: Judgment notwithstanding verdict.</p> <p>1. A city charter provision making it the duty of the owners or occupants of premises in front of which sidewalks are located* to keep such walks in repair or pay the expenses incurred by the municipality in doing so, does not impliedly make suchi owners or occupants liable to travelers for injuries occasioned' by the walks being out of repair.</p> <p>2. If, in addition to the duty mentioned in the foregoing paragraph, the charter provides that in case of an injury to person or property by reason of any defect, in a sidewalk for which the city would be liable, arising from or produced by the wrong, default, or. negligence of any person other than the city, the guilty person shall be primarily liable therefor, and the city shall not be liable therefor in advance of the exhaustion by the injured person of all legal remedies to enforce the private liability, such liability is not deemed to be one of the char* • acter of that created by sec. 1339, Stats. 1898, but to be one-grounded on common-law principles and so existing independently of statute.</p> <p>3. Charter provisions of the sort mentioned in paragraphs 1 and 2' aforesaid do not give rise to any liability either public or private to one injured by reason of a defective sidewalk. Responsibility for the results to person or property from faulty construction of sidewalks or want of repair thereof rests wholly on sec. 1339, Stats. 1898, while responsibility for the results to person or property of active wrongdoing creating a nuisance rests on the common law. Such provisions as those mentioned in paragraph 2 deal with the latter.</p> <p>4. A provision such as that mentioned in paragraph 2, given effect broadly, would materially modify sec. 1339, Stats. 1898. It should be strictly construed, first, because it would operate to vary the common law as to personal liability; second, it would to some extent repeal sec. 1339, Stats. 1898.</p> <p>5. Repeals and modifications of existing laws by implication are never favored. In case of a seeming conflict between two legislative enactments, all rules for judicial construction are to be applied to the end that they may be reconciled before reaching a conclusion that the one repeals or modifies the other.</p> <p><5. Nothing short of language unmistakably creating a liability of the owner or occupant of premises, in front of which a sidewalk is located, for damages to person or property caused by the insufficiency of such walk, and making such liability supersede to any extent that of the city under sec. 1339, Stats. 1898, can legitimately be given that effect.</p> <p>7. The last foregoing rule is satisfied by provisions in the charter of the city of Pond du Lac, treated in Hiner v. Fond du Lac, 71 Wis. 74, and similar cases, but not by provisions in the charter of the city of Janesville, treated in Selleclc v. Hallman, 93 Wis. 246, and similar cases.</p> <p>8. The notice required by sec. 1339, Stats. 1898, to he given the municipality in case of injury to a person by reason of want of repair of a sidewalk is a requisite to the creation of a right to compensation for injury.</p> <p>.9. A charter provision prohibiting the enforcement of such a right as that mentioned in paragraph 8, except by presentation of the claim to the city council, and in case of adverse action an .appeal to the circuit court, regulates the remedy, and is pei’-■missible under the rule that the legislature may take away rthe ordinary remedy for the enforcement of a right so long ;as it affords another which is adequate.</p> <p>10. A charter provision, in addition to the one regulating the remedy, that no action shall be maintained against the city to enforce any tortious liability,, unless a notice in writing signed .by the person injured, or claiming to be injured, of the wrong .■and circumstances thereof and amount of damages claimed, •.shall be presented to the council within ninety days after the occurrence creating the damage, bears on the remedy and is a statute of limitations.</p> <p>11. Pro-visions such as are mentioned in the eighth, ninth, and tenth paragraphs constitute a complete system as to statutory liability. One is essential to the right. The other relates to the procedure for the enforcement of the right. The third fixes the time within yhich the remedy is available, and at the expiration thereof, in legal effect, extinguishes the right.</p> <p>12. Adoption by a city existing under a special charter of a part of the general charter, pro tanto amends the former and renders it to that extent subject to further amendment by legislative action alone to change the part so adopted.</p> <p>13. Upon the reversal of a judgment by this court the case is required to be remanded for a new trial only when necessary, and that condition is always deemed to exist, as to a jury case, when, under any circumstances, a new trial might result otherwise than in such a judgment being awarded as would have been rendered before had that fatal error, or errors, not been committed.</p> <p>14. The practice rule that it is not permissible for a defendant to have judgment in the trial court notwithstanding the verdict, and, to the extent indicated, the one that a judgment in a jury case after trial can only be legitimately granted on a verdict which will support it, are obsolete.</p> <p>15. A verdict having been rendered, which upon its face is contrary to the undisputed evidence, it may be changed upon motion to correspond with the established state of the case and a judgment be rendered thereon, or judgment may be rendered upon motion of the party against whom the erroneous verdict stands notwithstanding the same. In the event of the proper motion being made in either case in the circuit court and denied and of judgment being rendered according to the erroneous verdict, and the same being reversed upon appeal to this court, the cause niay be remanded with directions to grant the motion and render judgment accordingly.</p> <p>16. The last foregoing rule is based on the theory that a motion having been made in the court below enabling such court to pass upon the identical question decided here and requiring a reversal, the proper solution of which question in the first instance must necessarily have terminated the litigation, the prevailing party on appeal is entitled to have the error fully corrected, which can only be done by requiring the lower court to pass upon such question as it should have done originally, and to close the case accordingly.</p> <p>17. The rule stated is extended beyond situations to which it has previously been applied, so that in case oí a motion for the direction of a verdict at the close of the evidence being denied and a verdict being rendered for the adverse party, and its being held upon appeal that the motion should have been granted, and for reasons necessarily precluding the losing party from securing any different result by another trial than the one that would have necessarily followed a correct decision of the motion in the first instance, this court may cause the litigation to be terminated in the court below without a new trial, to that end remanding the cause with directions to grant the motion previously denied, and to render judgment accordingly.</p> <p>[Syllabus by Maeshaix-, X]</p>

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Rat SteveNS, Circuit Judge.</p> <p>Tbe plaintiff entered defendant’s employ on May 2, 1904, and while operating a punch press in defendant’s shops was injured on June 9th following. The defendant is a corporation engaged in the manufacture of electrical appliances. The machine which plaintiff operated at the time of the accident is known as the Bliss Press No. 20. It was installed in defendant’s shops in February, 1902. In so far as the record discloses it was of standard and approved design and construction and such as is in common use by manufacturers. It is operated by an independent electric motor connected with the fly wheel of the press, which revolves upon a shaft that is stationary when the press is not in operation. The main operating parts of the press rest on and are held in place by a heavy frame, and consist of the fly wheel, a crank shaft, a drop punch, a table and die, and the brake. The parts employed in putting the machine in action consist of a treadle, a treadle spring, treadle rods combined with a rocker, a latch to which is joined a latch spring, a trigger, and trigger spring. The trigger is integral with a clutch placed in a groove of the shaft on which the fly wheel revolves. In operating the machine the communication of powei* from the motor rotates the fly wheel upon the stationary crank shaft. To put the punch in operation the person manipulating the machine presses flown the treadle with his foot. This draws down the lower treadle rod, which is connected with the treadle lever below and the rocker arm above. The rocker arm is thereby depressed, and with it the upper treadle rod attached to the rocker arm at its lower end and to the arm of the latch at its upper end. This movement draws down the latch arm, and throws the latch out of engagement with the trigger. This release of the trigger permits the trigger spring to move the trigger, which turns and throws the clutch out into one of two grooves of the fly wheel, thereby engaging the wheel and the crank shaft, causing it to rotate and the punch attached to the crank of the shaft in turn to drop and rise at each turn of the wheel and shaft. When the machine is running the •shaft makes 120 revolutions a minute, thus making the punch drop at the rate of 120 times per minute while it continues in operation. Upon removal of the pressure from the treadle, the power on the treadle and the rocker arm is reversed by means of a treadle spring, which lifts the treadle lever, and pushing the rods up throws the latch into place so that it will engage with the trigger, thereby disengaging the clutch from the fly wheel, causing the shaft to stop with the crank in an elevated position, and holding the punch suspended above the die table of the press. The stopping of the shaft and the holding of the punch are designed to occur automatically in the normal operation of the press. In using the press for making disks and doing similar work the person manipulating the press places the material on the die, presses the treadle with his foot, and then releases it at once. This drops the punch, raises it again, stops it automatically, and holds it there until it is dropped again by throwing these operative parts of the machine into action again by pressure on the treadle. The dies used are of different kinds to meet the various wants for different products. Two of them are attached at a time, oue to the table and another to the punch. The latter drops on to the material placed on the lower and ■stationary one. ' The space between the dies, when the punch is lifted to its full height, is about three inches.</p> <p>The plaintiff had been employed in several manufacturing ■establishments as an apprentice, and with a view of obtaining practical knowledge of machines and their operation had worked about and with machinery from August, 1902. He had worked with a punch press like the one in question, but of a smaller size. It appears that plaintiff had the intelligence to comprehend his work and to understand in a general way the nature of his employment and the liability to injury from ■dangers apparently incident to it. He received no special instructions concerning the danger incident to running the ■press. He testified that defendant’s department foreman ■showed him how to place the material to be run through the press on the lower die, and to trip the press, and to remove the product with the hands, and that he did the work in the way in which the foreman did it in showing him. This testimony is contradicted by the foreman. Plaintiff states that he worked at the press on Monday, punching copper segments ; that he continued working there on Tuesday, making mica segments until about 9 o’clock in the forenoon, when the punch dropped repeatedly without pressure on the treadle; that he called the foreman’s attention to this abnormal operation, as he.had been instructed to do; that the foreman then ■cut off the power, adjusted some of the parts of the machine, and directed plaintiff to proceed with the work; that he did ■so, and that at the first operation the punch dropped twice without stopping. This occurred in the presence of the foreman, who again made further adjustments and again directed plaintiff to proceed with his task, telling him that the machine was all right. He worked at the press on Wednesday ■until a part of the punch broke. The foreman was notified of this, and be removed parts of it for repair, and set plaintiff at other work for tbe remainder of tbe day. On Thursday, June 9th, plaintiff was directed by tbe foreman to work at tbe press making disks, and was assured by him that tbe machine was set up for tbe job and that it was all right. He continued tbe work, with tbe exception of about an hour spent at other work, until 11:15 o’clock, when be tripped tbe press in tbe usual way to cut a disk out of a piece of tin placed in tbe lower die; tbe punch dropped, but tbe lock failed to bold and stop it automatically after being elevated on tbe first revolution, and tbe punch dropped again a second time before stopping, without any pressure having been applied to tbe treadle. Tbe second drop of tbe punch caught bis band, and severed parts of it.</p> <p>Plaintiff was tbe only person who observed tbe operation, and bis testimony as to tbe second dropping of the punch is as follows:</p> <p>“Q. Now, at tbe time you were injured state whether or not it dropped tbe second time rapidly or slowly. A. Dropped rapidly. I bad to put my band under to get tbe work out, and that is tbe position my band was in when tbe punch dropped. I hadn’t bad time to draw my work out.”</p> <p>On cross-examination, in speaking of tbe abnormal dropping on a prior occasion after tbe foreman bad been notified and bad adjusted parts of the machine, be states:</p> <p>“After be [the foreman] tried it a couple of times it worked all right, and I went to work. The first time I put my foot’ on tbe treadle it dropped again. It did not continue to drop that time; just dropped twice, that is all. Q. Just the same as it did the time you hurt your hand later? A. Yes, sir.”</p> <p>He stated that tbe pieces of tin for making disks, used by tbe foreman in showing him bow to run tbe press and to do bis work, were placed on tbe die with tbe-bands, and that tbe disks were removed by band after the punch bad dropped and returned to its stationary position; that be did tbe work in tbis way when be was injured; tbat tbe disks and rims of tin left as waste were of sucb size, shape, and in sucb position on tbe die tbat it was necessary to put bis band under tbe area of tbe cutting die of tbe punch in order to remove them. Tbis is denied by defendant’s experts on tbe subject.</p> <p>Evidence was also adduced bearing on tbe following questions: (1) Tbat tbe treadle latch attached to tbe frame of tbe machine, over tbe treadle, might possibly have become loosened and momentarily have held tbe treadle down, and after tbe removal of tbe foot from tbe treadle have caused the second drop of tbe punch. ■ (2) Tbat tbe trigger spring and clutch were gummed from accumulations of oil and dust so as to retard, their action and to prevent them from performing their functions in tbe normal operation of tbe press. (3) Tbat tbe treadle rod, leading from tbe treadle lever to tbe rocker arm, was attached to tbe rocker arm by a set-screw, and tbat tbis set-screw was worn loose and was liable to permit tbe treadle rod to slip and move in tbe rocker and result in defective operation of tbe latch by failing to engage tbe trigger, and thereby bringing about tbe regular automatic stopping of tbe punch after it bad dropped and risen. (4) As to tbe absence of a lock nut on tbe set-screw, to bold it in place after being firmly set to bold tbe treadle rod. Proof of abnormal operation of tbe press was given by a number of witnesses besides plaintiff, and was to tbe effect tbat in operating tbe machine at different times before tbe accident it bad made a second drop after the removal of tbe foot from tbe treadle, and tbat defendant’s officers and agents bad been informed of sucb defective operation. Defendant adduced evidence showing tbat tbe machine was of approved design and construction and tbe same as those commonly and generally used by manufacturérs as standard, and adduced tbe evidence of its superintendent, department foreman, and others tending to show tbat tbe machine was free from discoverable defects which might cause tbe defective operation complained of.</p> <p>A number of exceptions were preserved to rulings on evidence, on refusals to submit requested questions in tbe special verdict, on refusals to give instructions and to instructions as .given, and to remarks by plaintiff’s counsel to tbe jury. Tbe particular matters recited in tbe exceptions will be referred to in tbe discussion, so far as may be necessary.</p> <p>Tbe case was submitted to a jury and tbe following verdict was rendered:</p> <p>“(1) Was tbe machine in question so defective or out of repair at tbe time of tbe accident as to render tbe punch liable to fall a second time without pressure upon tbe treadle? Answer. Tes. (2) If your answer to question No. 1 be Wes,’ then did the defendant have such notice of such defect or want of repair that by tbe exercise of ordinary care and diligence it might have remedied it before tbe plaintiff was injured? A. Yes. (3) If your answers to questions 1 and 2 be Wes,’ then was tbe defendant guilty of any want of ordinary care in permitting the use and operation of said machine by tbe plaintiff in tbe condition it then was ? A. Yes. (4) Did*the defendant instruct and caution tbe plaintiff before be began work upon tbe machine in question as to tbe dangers incident to its operation? A. No. (5) Was tbe defendant guilty of any want of ordinary care in relation to instructing and cautioning tbe plaintiff as to tbe dangers incident to tbe operation of tbe punch press in question ? A. Yes. (6) Did tbe defendant provide plaintiff with any tools or appliances for tbe purpose of taking work out of the machine ? A. No. (I) If your answer to question No. 6 be ‘No,’ then was tbe defendant guilty of any want of ordinary care in failing to furnish such tools or appliances? A. Yes. (8) If your answer to questions 1, 2, and 3 be Wes,’ then was such want of ordinary care on tbe part of tbe defendant in allowing tbe machine to be used in such defective condition or while in want of repair tbe proximate cause of the injury ? A. Yes. (9) If your answer to question 5 be ‘Yes,’ then was tbe failure of tbe defendant to instruct and caution the plaintiff as to tbe dangers incident to tbe operation of tbe machine tbe proximate cause of tbe injury ? This question is not to be answered if your answer to question 8 be ‘Yes.’ (10) If your answer to question 7 be ‘Yes,’ then was the failure of tbe defendant to fumisb tbe plaintiff with tools and appliances for the purpose of taking the work out of tbe machine tbe proximate cause of tbe injury? If you answer questions 8 or 9' ‘Yes,’ tbis question should not be answered. (11) Was there any want of ordinary care on tbe part of tbe plaintiff which contributed to produce the'injury ? A. No. (12) Did tbe plaintiff assume tbe risk incident to tbe operation of tbe machine in tbe manner in which be operated it? A. No. (13) What sum will compensate tbe plaintiff for tbe injury which be suffered ? A. $5,000.”</p> <p>Defendant moved to strike out tbe affirmative answers to questions 1, 2, 3, 5, 7, and 8 because they were contrary to tbe evidence, and that tbe court answer them in tbe negative; also to strike out tbe negative answers to questions 11 and 12 because they were contrary to tbe .evidence, and that tbe court answer them in tbe affirmative; and for reduction of tbe damages found, as not supported by the evidence. Tbis motion was denied and exceptions taken. Defendant also moved for a new trial upon tbe grounds covered by these specific exceptions. Tbis was denied. Judgment was awarded in plaintiff’s favor on tbe special verdict for tbe amount assessed as damages and for costs. Tbis is an appeal from such verdict.</p>

<p> Fixtures: Landlord and tenant: Direction of verdict. </p> <p>1. In determining wiietlier articles in a building are fixtures, three* tilings should he considered: (1) Actual physical annexation to-the realty. (2) Application or adaptation to the use or purpose to which the realty is devoted. (3) An intention on the part of the person making the annexation to make a permanent accession to the freehold.</p> <p>2. In an action by a landlord against a tenant for the value of certain shelving, drawer pulls, counters, screen doors, and a furnace removed by the tenant from the demised premises, on the evidence, stated in the opinion, it is held that the question whether the same were fixtures should have been submitted to the jury.</p> <p>3. In such case certain of the articles were attached and used in and as forming a part of the store building when the defendant became a tenant. In the absence of any evidence disclosing a different state of facts, such articles are held to be the property of the landlord.</p> <p>4. An incoming tenant should take care to ascertain that he will have a good title to any fixtures he purchases from the outgoing tenant.</p>

Dice, Judge. This action was brought to recover upon a promissory note. The trial resulted in a verdict and judgment for plaintiff. The court ordered a new trial, on motion of defendant, on the ground that “said verdict was against the law, contrary to the instructions of the court, and unsupported by the evidence,” and ordered that costs abide the event of the action.

<p> Accident insurance: LiaMlity: Exemptions: Proximate cause: Injury resulting from poison or infection: Bodily infirmity or disease. </p> <p>1. In an action on a policy insuring against the effects of bodily injury caused solely by external, violent, and accidental means, one exemption from liability contained in the policy was: “This insurance does not cover any case of disability or death whatever, except where the claimant shall furnish to the company direct and positive proof that such disability or death resulted proximately and solely from accidental cause.” It appeared from the evidence that the assured fell and sustained an injury to his leg which caused an abrasion of the skin, that bacteria, causing blood poisoning, entered his system through such abrasion, and that his death resulted therefrom. Held:</p> <p>(1) The term “proximately,” employed in the contract, must be understood to have been used in its common and accepted meaning, as adopted and approved in the law under like conditions and circumstances.</p> <p>(2) The jury were warranted in their conclusion that the assured’s death resulted proximately and solely from his accidental fall.</p> <p>2. Responsible causation, as applied in the law, is not dependent on time, distance, or a mere succession of events.</p> <p>•3. A policy insuring against accidents, exempting the insurer from any liability for any injury “resulting from any poison or infection, or from anything accidentally or otherwise taken, administered, absorbed, or inhaled,” does not exempt the insurer from liability when accidental abrasion of the sldn was the proximate cause of death, although bacterial poisoning intervened.</p> <p>4. In such case the policy further exempted from liability for death “resulting either directly or indirectly, wholly or in part, from bodily infirmity or disease of any kind.” Held, that the exemption did not apply to bodily infirmity or disease the result of accident; and, the facts justifying the conclusion that death' resulted from accidental injury, the insurer was liable within the intent and meaning of this provision of the policy.</p>

<p> •'Limitation of actions: Statutes: Commencement of actions as to time: Same as to conditions precedent: Notice of injury, by whom given: Infants: Constitutional law. </p> <p>1. The notice required by subd. 5, sec. 4222, Stats. 1898, is not a limitation upon tbe time for commencement of actions, but a condition or limitation upon tbe right to maintain actions unless such notice shall be served within one year after the happening of the event causing damage, or unless such notice shall become unnecessary by the actual bringing of the action within such year as provided by ch. 307, Laws of 1899.</p> <p>.2. Subd. 5, sec. 4222, Stats. 1898, contains no exception in favor of minors, and sec. 4233, while extending the time within which a minor may commence an action, plainly exempts minors from the operation of the statute limiting the time for commencement of actions only, and has no reference to the statute providing for the service of notice. Hence, where a minor failed for one year after an injury causing damage to either give the required notice or bring his action, an action subsequently brought cannot be maintained.</p> <p>'3. Under subd. 5, sec. 4222, Stats. 1898 (providing that the required notice shall be signed by the-party damaged, his agent or attorney), it is sufficient if the notice show that it is given in behalf of the party who brings the suit, and, if in behalf of a minor, the notice may be given by his father, the natural guardian.</p> <p>4. Subd. 6, sec. 4222, Stats. 1898, as to actions accruing after its passage, is not obnoxious to any constitutional provision.</p>

<p> foreign corporations: Right to transact business: Contracts: Statutes: Pleading: Evidence: Chattel mortgages: Renewal: Affidavit: Lien of boarding-house Keeper: Essentials: Enforcement: Married women. </p> <p>1. Under sec. 17706, Stats. 1898 (providing that no foreign corporation, "witii. certain exceptions, shall transact business or hold of dispose of property in this state until it shall have filed an authenticated copy of its articles in the office of the secretary of state, and that every contract made by such corporation affecting its personal liability or relating to property within this state before complying with the provisions of the statute shall he void on its behalf), a contract made or a lien acquired upon property outside of the state by a corporation not transacting business within the state at the time is not void.</p> <p>2. The failure of the foreign corporation to comply with such statute is defensive matter, and all the facts necessary to bring a case within the statute must be proven or the defense will fail.</p> <p>3. Where a foreign corporation held a chattel mortgage on property in Wisconsin, dated before the corporation had complied with sec. 17706, Stats. 1898, and the evidence failed to show that the mortgage was made in this state, and there was no' proof that the corporation had ever transacted any business of any nature in Wisconsin prior to the time it filed its articles, a defense that at the time of the execution of the mortgage the corporation had not filed a copy of its articles with the secretary of state is untenable.</p> <p>4. Under sec. 2315, Stats. 1898, providing for renewal of chattel mortgages by affidavit, when the affidavit is made by any person other than the mortgagee, the fact of the agency must be sworn to by the affiant; a mere recital of the agency is not a part of the affidavit and is insufficient.</p> <p>5. In such case parol evidence of the fact cannot cure the defect.</p> <p>6. A contract by a married woman to pay for her board while living with her husband and while she is engaged in no business creates no liability against the wife.</p> <p>7. Under sec. 3344, Stats. 1898, giving every innkeeper and boarding-house keeper a lien upon and right to retain possession of the baggage and effects of any guest or boarder for the amount due him, in order that such lien may exist there must be a debt for board due from the boarder to the boarding-house keeper.</p> <p>8. Where a married woman living with her husband came with the husband to a boarding house and engaged board, the indebtedness for the wife’s board is the husband’s debt, and hence no lien could attach to her separate property which she herself brought to the boarding house.</p> <p>9. In such case, even if there had been an express pledge by the wife of her property for the payment of the debt, it would not create a boarding-house keeper’s lien under sec. 3344, Stats. 1898, but at best an equitable lien or charge, enforceable by proper action in a court of equity or equitable counterclaim in an action at law.</p>

D. HastiNGS, Circuit Judge. Equitable action to restrain defendants from interfering with the possession and enjoyment by plaintiff of property formerly possessed by a voluntary organization,… Held: according to the notice, to take action in relation to the church property, and so informed some of his associates. About the time the notice was given out the majority members were assembled at the home of Dewaarzegger’s sister.

D. HASTINGS, Circuit Judge. Mary S. Erueger, a widow, having five children, and possessing about $3,500 worth of property, all personal, on March 15,1904, the day before her death, executed a will, as follows: “First. I give and bequeath to my son Albert W. Krueger three hundred dollars. “Second. Christian and Mary and Frederick and Annie to receive the balance of the money and mortgages belonging to me in equal shares. “Third.

<p> Master and servant: Negligence: Injuries to servant: Assumption of rislc: Oontributory negligence: Infants: Obvious danger: Proximate cause: Special verdict: Instructions to jury: Prejudicial error. </p> <p>1. Plaintiff, a girl fifteen years old, was injured by tbe catching of ber bair on a set-screw wbicb beld a collar on a shaft revolving so rapidly tbat tbe set-screw could not be seen. When injured she was in tlie proper place for the performance of her duty, had little general knowledge of machinery, did not understand the relation of one part to the other, and did not know that the set-screws were used on the shaft, which with its attachments she had only seen in operation. Held, that plaintiff did not assume the risk of the negligence causing the injury.</p> <p>'2. In such case warning of danger of injury to her fingers from knives held onto the shaft through such set-screws is insufficient to apprise plaintiff of the danger of coming in contact with the set-screws.</p> <p>3. The rule that knowledge of all obvious dangers is imputed to an adult servant and he assumes all risks incident to them applies • to minors in so far as their age, intelligence, discretion, and judgment enable them to comprehend and appreciate such dangers.</p> <p>4. In an action for personal injuries to a fifteen-year-old girl from machinery, in the absence of showing that she in fact knew of the danger which caused the injuries and in view of her age, intelligence, experience, discretion, and judgment, as shown by the evidence, stated in the opinion, it cannot be said, as matter of law, that she ought to have discovered and understood such danger.</p> <p>-6. A special verdict finding defendant negligent in using a set-screw on a machine at the place and manner it did, and that it thereby rendered plaintiff’s working place unsafe; that plaintiff’s hair caught in this set-screw while she was in the performance of her duty, and that it thereby caused her injury; and that persons of ordinary intelligence and prudence should reasonably have anticipated that the presence of the set-screw would cause some injury to employees working about the machine, sufficiently covers all the essential elements of proximate cause.</p> <p>■6. General instructions given to the jury, stated in the opinion, are held to have transgressed the rule requiring that instructions be confined to an explanation of the questions of the special verdict, without informing the jury of the legal effect of their answers to the questions.</p> <p>■7. "Where instructions given were not erroneous, and no written requests for further instructions were made, no valid exception can be urged on the ground that abstract propositions were given on questions submitted to the, jury without adequately covering the issues by the instructions applicable to the facts.</p>

D. HastiNGS, Circuit Judge. Tbe defendant is a railroad corporation, and tbis action was commenced to recover damages for injuries sustained by plaintiff while' in its employ. It is claimed by plaintiff tbat, in tbe services in wbicb be was engaged at tbe time of the injury, be was witbin tbe protection of sec. 1816, Stats. 1898, and therefore is entitled to recover on account of the negligence of a co-employee.

<p> Tax titles: Tax deeds: Evidence: Admissibility: Presumptions: Statutes of limitation: Suspension. </p> <p>1. Under sec. 1176, Stats. 1898 (providing that a tax deed duly witnessed and acknowledged shall he presumptive evidence of the regularity of all the proceedings, from the valuation of the land by'the assessor up to and including the execution of the deed), a tax deed is admissible in evidence without proof in detail of the consecutive steps required to be taken by the taxing officers, although such consecutive steps are fully pleaded, where there is nothing in the allegations of the pleading which tends to destroy or impair the presumptive evidence of such tax deeds by virtue of such statute.</p> <p>2. Tax deeds on vacant and unoccupied lands were severally recorded between February 1, 1898, and May 31, 1898, and the grantee-(one of the present defendants) on October 5, 1899, commenced actions thereon under sec. 1197, Stats. 1898, to bar the original owner (the present plaintiff), which actions, after answer setting up irregularities fatal to the tax deeds, were discontinued' September 21, 1903. On September 23, 1903, the present action of ejectment was commenced to accomplish what was sought to-be accomplished by the defense in each of the other actions. Eeld, under sec. 4249, Stats. 1898 (providing, as to a defense, that the time of the commencement of the plaintiffs action shall be deemed the time when the claim for relief as to such defense is interposed), and sec. 4250 (providing that, when a defendant in an action has interposed an answer as a defense upon which he would be entitled to rely in such action, the-remedy upon which at the time of thé commencement of such action was not barred by law, and the complaint is dismissed or the action is discontinued, the time which intervened between the commencement and the termination of such action shall not be deemed a part of the time limited for the commencement of an action by the defendant to recover for the cause of action so interposed as a defense), that the three-year statute of limitation (sec. 1188, Stats. 1898) had not run against plaintiff, and therefore evidence showing the invalidity of such tax deeds was admissible.</p>

<p> Contracts: Construction: “Causes of action on account of any trespass:” Trespass: Survey: Costs: Taxation: Review: Power of court. </p> <p>1. Plaintiff; claimed under a clause in a warranty deed: “The grantor hereby assigns and transfers to the grantee all its claims, demands, or causes of action for or on account of any trespass upon the real estate above described.” Held, that the words “on account of any trespass” covered causes oí action for conversion by defendant of timber cut by a third party as the trespasser.</p> <p>2. Under seG. 2922, Stats.' 1898 (providing that when in actions of trespass, trover, and replevin, founded upon the unlawful cutting of timber, or such cutting and its conversion, the amount of plaintiffs recovery exceeds $50, the plaintiff shall recover full costs, including therein any actual reasonable expense of one survey and ascertainment of the quantity of timber so cut, or cut and converted, made after the commencement of the action by one surveyor and one assistant, if duly proved as a necessary disbursement), only the per diem and actual and reasonable expenses of one surveyor and one assistant can be taxed, and it is error to allow either the wages or expenses of axmen, chainmen, cooks, or flagmen, in addition to the one assistant.</p> <p>■[3. Whether sec. 2922 authorizes necessary expenses in addition to mere per diem of the surveyor and assistant, suggested but not decided.]</p> <p>4. On the facts, stated in the opinion, an allowance of $100 for the entire reasonable expenses of a survey is held sufficient.</p> <p>5. On appeal from the taxation of costs made by the taxing officer, the function of the circuit court is simply to review his conclusion, not to try the question cLe novo.</p>

<p> Deeds: Sufficient delivery: Fraudulent conveyances: Evidence: Sufficiency. </p> <p>1. A deed containing an erroneous description of land intended to he conveyed was duly delivered to the grantee, who returned it to the grantor for correction. The grantor thereupon executed a second deed with the proper description, and delivered the same to the register of deeds of the proper county to he recorded for the grantee’s use. The deed was recorded accordingly, and thereupon it was sent hy mail to the grantor for the grantee’s use. Held, that there was a sufficient delivery of the second deed.</p> <p>2. In such case the facts, stated in the opinion, are held to sustain a finding that such deed was not in fraud of creditors.</p>

<p>Appear from an order of tbe circuit court for Ashland •county: Jorrar K. Parish, Circuit Judge.</p> <p>Appeal from order overruling a demurrer on the ground that several causes of action are improperly united. The complaint is bought under sec. 1197, Stats. 1898, to bar former •owners of land to which plaintiff holds tax deeds dated July 28, 1894, and sets forth two causes of action: The first upon lot No. 3 of section 30, to which A. H. Brown and Clara A. Brown are the only persons named as adverse claimants. The ■second cause of action is upon a tax deed of the same date as the former, but for the next year’s t&xes, and covers lot 3 of ■section 30 aforesaid, and also part of lot 3 in section 20 of the same town and range. All the defendants, including said Brown,, are alleged to be claimants of interests in said lands in section 20.</p>

<p> ■Service of process: Publication of summons: Foreign corporations. </p> <p>It appeared, among other things, that defendant was a foreign corporation and had fully complied with the requirements of sec. 17705, Stats. 1898; that it had within this state real property which had heen attached in this action, and that a cause of action existed in favor of the plaintiff and against the defendant which arose within this state. Plaintiff attempted to justify a judgment in his favor based on an order of publication of the summons and personal service outside the state. Held:</p> <p>(1) The summons and complaint might have been served on the secretary of state as prescribed in sec. 17705 and subd. 13, sec. 2637, Stats. 1898.</p> <p>(2) A showing that the summons and complaint had been delivered to a constable for service on the defendant, and that ■after diligent search he was unable to find the defendant within tlie state or any agent thereof on whom service could he made, does not, in such case, comply with the. provisions of sec. 2640, Stats. 1898 (requiring, among other things, as a prerequisite to a valid order for publication of summons, that it must appear by affidavit that plaintiff is unable, with due diligence, to make service of the summons upon the defendant in respect to whom such order is applied for).</p> <p>(3) There being no presumption of the existence of facts essential to give jurisdiction, and no valid order of publication, the court should have dismissed the action for want of jurisdiction.</p>

<p> Appeal and error: Findings when disturbed: Mechanics’ Mens: Fixtures: Window screens: “AppurtenancesPleading: Defense in abatement: Waiver: Costs: Taxation: Findings: “Necessary papers.” </p> <p>1. Where the conclusion reached by the trial court is not against the weight of the evidence the judgment will be affirmed.</p> <p>2. Physical annexation, although always an important consideration, is not the sole or controlling test in determining the question of , fixture or no fixture. The question of the intention of the party making the annexation is the principal consideration.</p> <p>3. Where the owner of a house orders window screens to be manufactured and fitted to his house, though detachable for convenience during the winter months, the intention is unquestionably to permanently increase the comfort of the house and its desirability for residence purposes, and, under subd. 1, sec. 3314, Stats. 1898 (giving a lien for material and labor furnished for or in or about the erection, construction, or repair of any dwelling house, building, or appurtenance), such screens are clearly included within the term “appurtenance.”</p> <p>4. A defense of another action pending is a defense in abatement, which must be pleaded with particularity, and if not pleaded is waived.</p> <p>5. Findings which upon vital points fail to conform to the direction and decision of the trial court are not “necessary” papers or proceedings in a cause, and charges therefor in a bill of costs presented for taxation should be entirely disallowed.</p>

order of tbe circuit court for Eau Claire eounty: E. W. HelMS, Judge. Tbis is an appeal by tbe plaintiff from an order of tbe circuit court denying its application for an order to restrain defendant, pendente lite, from proceeding to appoint appraisers to determine tbe value of plaintiff’s waterworks plant.

EeRos to review a judgment of the circuit court for Marathon county: James O’Neill, Judge.

Writ of error to review conviction for rape and ten years’ ■sentence to the state reformatory.

<p> Bankruptcy: Preferential payments: Insolvency: Notice: Questions of fact. </p> <p>1. When the creditor of one subsequently adjudicated a bankrupt receives a payment without reasonable cause to believe the debtor insolvent or that he intended thereby to give a preference, although the facts known to the creditor, at the time of the payment, were such as would naturally produce in the mind of a reasonably intelligent man a doubt or suspicion of solvency, and such as would put a reasonably prudent man on inquiry, such payment is not preferential.</p> <p>2. Grounds for reasonable belief in a present inability of a debtor to pay debts in the course of business are not necessarily grounds for believing that his property, at a fair valuation, is not sufficient to pay his debts.</p> <p>3. Whether the creditor of a bankrupt in receiving a payment had reasonable cause to believe that a preference was intended is . a question of fact determinable by the jury or trial court</p>

<p> Gmirts: Terms: Review of adjudications: Criminal and civil con-tempts: Procedure. </p> <p>1. A terih for T. county which, under sec. 2424; Stats. 1898, as amended hy eh. 6, Laws of 1905, is made a special term for P. county, is a separate term for P. county, commencing and ending as a term for P. county with the opening and closing of the term for T. county.</p> <p>2. In sucli situation no judgment or final order in a special .proceeding pending in P. county, but actually entered in T. county, can be reviewed at a term for A. county which is also a special term for P. county, and hence, except as provided by the statute authorizing the court to grant relief from a judgment or order or other proceeding made through mistake, inadvertence, surprise, or excusable neglect, an order entered in A. county, attempting to modify such order entered in T. county, is unauthorized, void, and of no effect.</p> <p>3. There is a marked distinction in the remedies afforded and the procedure to be followed in each class between criminal con-tempts under ch. 117, Stats. 1898, and contempts in civil actions under ch. 150. The former have all the characteristics and incidents of a criminal prosecution in the name of the state, while the latter have those of a civil proceeding.</p> <p>4. The proceedings to punish a civil contempt under ch. 150,'Stats. 1898, are designed to enforce obedience to the decrees of the court, to indemnify parties to the action for their actual loss or injury, and to com pel performance of duties still within the contemnor’s power.</p> <p>5. The provisions of ch. 150, Stats. 1898, governing civil contempts, warrant the imposition of a fine or imprisonment, or both, in cases where no actual loss or injury is shown; and when a fine is so imposed it is in the nature of a penalty, and is to be paid into the state treasury to the credit of the school fund.</p> <p>6. In cases of civil contempts punishable under ch. 150, Stats. 1898, where actual loss or injury results from the alleged misconduct, instead of imposing a fine the proper proceeding is to order a sum to be paid to the aggrieved party to indemnify him for such loss or injury.</p> <p>7. In proceedings supplemental to execution a judgment debtor, who was ordered to appear before a court commissioner .to answer under oath as to his property and abide the orders of the commissioner, defaulted. Thereafter the commissioner made an order requiring the debtor to show cause before the cii’cuit. court why he should not be punished as for a contempt, and the debtor again defaulted. Held, that it then devolved upon the court to determine (1) whether the alleged misconduct had been committed; (2) if the debtor was found guilty, whether such misconduct was calculated to or actually did defeat, impede, or prejudice the rights and remedies of the judgment creditor; (3) if it was so found, whether an actual loss or injury had resulted to the judgment debtor from such misconduct; (4) if no resultant loss or injury was adjudged, to impose a fine or imprisonment, or both, as a punishment for the contempt; (5) if resultant loss or injury was adjudged, to order the defendant to pay to the injured party a sum to indemnify him and to pay his cpsts and disbursements, and in addition, if a proper case, to coerce performance of acts ahd duties owing to the injured party, and still in the defendant’s power to perform.</p> <p>■8. In such case the successive adjudication of each of the foregoing propositions was an essential and necessary step to give validity to the proceeding, and, in their absence, no foundation was shown for an order directing the judgment debtor to perform a duty theretofore omitted and still in his power to perform, to pay a fine, and in default to stand committed until the order should be obeyed.</p>

<p> Appeal and error: Verdict, when disturbed: Street railways: Negligence: Flection of passenger: Evidence: Remarles by court: Prejudicial error: Instructions to jury: Excessive damages. </p> <p>1. On appeal the ruling of the trial court refusing to set aside a verdict will only he reversed where there is no evidence to-support it, or where, though there is some evidence in its support, still the great weight of the evidence is against it, and that weight is so reinforced hy all the reasonable probabilities and inferences that it becomes overwhelming. ■</p> <p>2. In an action against a street railway company to recover damages for negligence in forcibly ejecting a passenger while the car was in motion, the evidence, stated in the opinion, is held sufficient to show such negligence, and also to sustain an answer to a special question submitted to the jury as to the rate of speed of the car at the time the passenger was ejected.</p> <p>3. In an action against a street railway company to recover damages for negligence in forcibly ejecting a passenger while the-car was in motion, plaintiff.’s counsel, in attempting to show notice to the defendant’s officers shortly after the injury, asked a question: “What did you say to Mr. G. about this trouble?’* and, on objection being made, the court remarked: “You are seeking to show that you informed the company of the improper conduct of the conductor soon after the accident happened.” Held, that the use of the word “improper,” while ill advised, did not constitute prejudicial error, since it was patent from the record that the court simply meant “the conduct which you claim was improper,” and therefore the jury could not have been misled.</p> <p>4. In an action against a street railway company to recover damages for negligence in forcibly ejecting a passenger while the car was in motion, an instruction, in substance, that if the plaintiff was using profane and insulting language or was guilty of boisterous or riotous conduct on the car, or was threatening to assault the conductor, the conductor was justified in putting him off without using unnecessary force, is not rendered erroneous by adding: “Provided tbe car bad come to a standstill, but not if it was still in motion.”</p> <p>5. In sucb case requested instructions bearing on plaintiff’s conduct, stated in tbe opinion, are held to be not well drawn, and, in so far as they state correct principles, to be fully and carefully covered by the general charge.</p> <p>6. In an action against a street railway company to recover damages for negligence in forcibly ejecting a passenger while the car was in motion, the evidence, stated in the opinion, is held sufficient to justify a finding by the jury that an ulcer on plaintiff’s leg was caused by the fall at the time of the ejection.</p> <p>7. In such case the verdict is held not to be excessive.</p>

<p>Mandamus: Criminal law and practice: Change of venue after reversal in supreme court: Statutes: Construction.</p> <p>S., being about to be placed on trial for a criminal offense in the municipal court of Milwaukee county, used his statutory right and obtained a change of venue to the circuit court for that county on account of the prejudice of the municipal judge. Thereafter, in due form of law, he was convicted and sentenced, and, upon writ of error, the judgment of conviction was reversed by the supreme court and the cause remanded for a new trial. At the first term after reversal and on the cause being called for trial, an application, in due form of law, was made for a change of venue on account of the prejudice of the circuit judge, which was denied, and thereupon an alternative writ of mandamus was sued out of the supreme court to compel the relief demanded on such application. Held, under sec. 4680, Stats. 1898 (providing that any defendant may apply for a change of venue on account of the prejudice of the judge of the court in the manner provided by law for a change of venue in civil actions; and it shall be the duty of the judge to award such change, but not more than one change shall be awarded in any cause, and such change shall not be awarded after the-next term succeeding that at which the accused shall have been arraigned unless his affidavit states facts showing the existence of prejudice on the part of the judge unknown to the defendant at any term of the court prior to the making and filing of such affidavit; and in all cases after a trial shall have been had without a verdict the accused shall be entitled to one change of venue, if he desire it and make application therefor at the term at which such trial was had; provided, that where the judgment shall he reversed by the supreme court and the cause remanded for a new trial such defendant may apply for a change of venue on account of the prejudice of the judge in the manner provided by this section at the first term when the cause shall be called for trial after such reversal):</p> <p>(1) The right of S. to make such application by necessary implication carried with it the right to have the application granted in case the moving papers satisfied the statute.</p> <p>(2) Such application should be made in accordance with the law in a civil action, i. e. by filing an affidavit and moving thereon, stating that the defendant has good reason to believe and does believe that he cannot have a fair trial on account of the prejudice of the judge, naming him.</p> <p>(3) The manifest purpose of the proviso in sec. 4680 is to place the accused at the first term of the court after the reversal at which a trial may be had in the same situation, as regards a change of venue, as at the first opportunity for a change after the filing of the indictment or information.</p> <p>(4) In such affidavit it is not necessary to state facts showing that the existence of prejudice on the part of the judge was unknown to the applicant at any term of court prior to the filing of the application, since there might be one or more terms of court prior to making the application, occurring between the first trial and the first opportunity for a second trial, neither of which would afford opportunity for an application for a change of venue and give rise to any necessity therefor.</p> <p>(5) S. having been denied a clear statutory right, a peremptory writ of mandamus should issue.</p>

Original writ of habeas corpus sued out to discharge petitioner from custody by tbe warden of tbe state’s prison. On May 8, 1903, be was convicted of crime and sentenced to an indeterminate term of one to seven years at tbe reformatory at Green Bay.

Eowlee, Circuit Judge. Action to recover for breach of contract. The complaint of the plaintiff was to this effect: Its agent took an order from defendant for a sale and delivery by it of sixty barrels of linseed oil at forty-three cents per gallon for boiled oil and forty-two cents for raw oil, the order being accompanied by some verbal arrangement between defendant and such agent.

<p>Appeal from a judgment of tbe circuit court for Eond du Lac county: Chesteb A. Eowlee, Circuit Judge.</p> <p>Tbe defendants, being interested in a farm in Eond du Lac county, entered into an agreement with tbe plaintiffs, real-estate agents, to tbe effect, as found by tbe jury, that, if plaintiffs should effect a sale or procure a purchaser at a price acceptable to the defendants, tbe latter would pay plaintiffs a two per cent, commission on the price obtained. Eighteen thousand dollars was stated as tbe price which defendants desired or demanded. Plaintiffs made various exertions to mate sale, reported several offers, which were unsatisfactory, and at length, about January 28, 1903, obtained and communicated offer from one Eerber of $17,000, which was rejected-by defendants as inadequate, and negotiations by plaintiffs continued. On February 20, 1903, defendant Gage came to plaintiffs and stated to them that he had bought the farm from the other co-owners and that they felt like paying the plaintiffs something, although they had not earned their commission according to contract. Plaintiffs responded that they were still hopeful of effecting a sale to Eerber at a satisfactory price; whereupon Gage, as found by the jury, repeated to plaintiffs tbat be bad decided and intended to keep tbe farm as a borne for bimself and not to sell it; tbat it was no longer in tbe market; wberenpon tbe plaintiffs said tbat, if be bad so decided, they would forego any claim to continue efforts to ibid and effect a sale, and accepted bis offer to pay them $25 for wbat they bad done, and gave a receipt in full for all tbeir services in tbat connection. At tbe moment of sucb negotiation defendant Gage bad not determined or decided to withdraw said farm from tbe market or to keep it, but was on bis way to see tbe same man Ferber with tbe then present intent to sell to him if a satisfactory price could be obtained. Tbe following day be did effect sucb sale for $17,356, upon learning which tbe plaintiffs demanded payment of tbeir commission of two per cent, on tbat amount, less tbe $25 received by them, which they credited thereon; that being refused, they brought this action to recover tbat amount. A special verdict was found, substantially to tbe foregoing effect, whereupon judgment was entered in favor of tbe plaintiffs for $365.38 and costs, from which defendants appeal.</p>

<p> Electricity: Master and servant: Negligence: Contributory negligence: Declarations: Farts of a conversation: Evidence: Materiality: Competency: Cross-examination: Prejudicial error: Direction of verdict. </p> <p>1. In an action for the negligent killing of an experienced lineman by his coming in contact with a wire heavily charged with electricity, it appeared, among other things, that decedent, on. the morning of the accident, had a conversation with defendant’s superintendent at the power house. On the direct examination of defendant’s witnesses part of this conversation,, to the effect that the superintendent apprised decedent that, in doing the work on the pole on which he was afterwards killed,, he must look out for and guard against live wires, was elicited. Upon cross-examination, and also in rebuttal, plaintiff’s, counsel sought to prove all this conversation, and propounded questions tending to show that in such conversation the decedent requested the superintendent to shut off the current while he performed the duties assigned him at the pole in question, and that the superintendent informed decedent that the current would be shut oH, which evidence, on objection, was excluded.. The trial court ruled that the decedent was sufficiently warned of the danger and that he had assumed the risk incident to it; that therefore no actionable negligence was shown, and directed a verdict for defendant. Held:</p> <p>(1) If the superintendent so informed decedent, such evidence was material on the question of decedent’s contributory negligence.</p> <p>(2) The evidence was material and competent under the rule that all parts of a conversation, if material to the issues litigated, may properly be offered by either party as a matter of right, and that each party may give his version of a conversation, and if one gives a part sufficiently complete to be material to the case the other has a right to prove the balance.</p> <p>(3) Such right may be exercised by cross-examination or by calling other witnesses.</p> <p>(4) The exclusion of such evidence was prejudicial.</p> <p>’2. In such case evidence that a statement that the wires were charged was made in decedent’s presence, when from other evidence it appeared doubtful whether decedent heard such statement, did not authorize the direction of a verdict.</p>

<p> Appeal from county court: Discretion: Laches. </p> <p>1. Under sec. 4035, Stats. 1898, application to the circuit court for leave to appeal from an order of tlie county court after the time within which an appeal may he taken as a matter ox right has expired, is addressed to the sound discretion of the circuit court, and tlie determination of that court will not be disturbed unless it clearly appears that sucb discretion bas been abused.</p> <p>2. Under tbe facts/ stated in tbe opinion, an application to tbe circuit court in March, 1904, for leave to appeal from an order of tbe county court construing a will entered in March, 1903, is held barred by laches.</p> <p>3. In sucb situation there is held to be no abuse of discretion in denying tbe application.</p>

<p> 'Appeal from county court, how talcen: Filing notice of appeal: Under-talcing: Discretionary orders: Authentication of records: “Exemplified copy:” Jurisdiction: Foreign wills: Attempted probate in Wisconsin. </p> <p>1. Under see. 4031, Stats. 1898, an appeal from an order or judgment of-a county court is taken by filing the prescribed notice within the sixty days allowed, and an undertaking perfecting such appeal filed a few days after the expiration of the sixty days, if otherwise sufficient, should be accepted and approved by the county court.</p> <p>2. In such situation, if the county court refuses to approve such undertaking, the circuit court on petition shopld, under the provisions of sec. 4035, Stats. 1898, allow such appeal upon such terms and within such time as that court- deems to be reasonable, and the denying of such a petition is an abuse of discretion.</p> <p>3. In order to entitle the records and judicial proceedings of the courts of other states and countries to the faith and credit required by constitutional mandate, it must appear, in the manner prescribed by law, that the court rendering the same had jurisdiction.</p> <p>4. Under the provisions of secs. 3787, 3789, 3790, Stats. 1898, governing the probate of foreign wills, and secs. 4140, 4145, Stats. 1898, and sec. 905, R. S. of U. S., governing the authentication of the records of a foreign court, the “exemplified copy" of a foreign will and of the record admitting the same to probate means a duplicate or transcript of the will and of the records or proceedings in the probate court admitting such will to probate, duly certified by the custodian as having “been by him compared with the original,” and on failure to comply with such requirement the county court to which application to admit such foreign will is made does not acquire jurisdiction.</p>

<p> Master and, servant: Negligence: Personal injury: Machinery: ■ Guards: Failure to warn: Assumption of rislc: Nonsuit: Instructions to jury: Prejudicial error: “Ordinary care:” Special verdict: Opinion evidence: Depositions: Admissibility. </p> <p>1. In an action for personal injuries received by a servant in feed- ' ing brass sheets into a rolling machine, the negligence alleged was (1) in not providing the machine with a guard, and (2) in not warning the plaintiff of the danger resulting from sharp slivers of brass which occasionally formed on the sides of the sheets. Under the evidence, stated in the opinion, held:</p> <p>(1) The court rightly struck out the evidence as to the guard and eliminated that question from the case.</p> <p>(2) As to the failure to warn, there was evidence from which. the jury might find negligence on the part of defendant.</p> <p>(3) Assumption of risk as matter of law was not shown.</p> <p>(4) A motion for nonsuit was properly overruled.</p> <p>2. An instruction to the jury on the subject of burden of proof and preponderance of the evidence as follows: “By burden of proof I mean that it is incumbent on the party affirmatively asserting an allegation to establish it by a fair preponderance of the credible evidence, facts, and circumstances proven on the trial; and by ‘preponderance of evidence,’ as I have used the term, is meant the greater convincing power of evidence. That is, in the trial of a lawsuit that side has furnished the preponderance of evidence which has produced evidence of greater convincing power in the minds of the jury than that produced by the other side. And when the law imposes upon a party the burden of proof it means that such party is bound to produce evidence in support of the proposition involved of greater convincing power than that produced by the other side. Such convincing power of evidence is not necessarily determined by the number of witnesses, for it may be that the testimony given by one witness has greater convincing power than that given by several witnesses contradictory or tending to contradict that given by the one,” gives a definition of the term “preponderance of evidence” with substantial correctness, but not so with the definition of “burden of proof.” The party on whom rests the burden of proof does not lift that burden by merely producing a preponderance of evidence. In order to entitle him to a finding in his favor his evidence must not only be of greater convincing power, but it must be such as to satisfy or convince the minds of the jury of the truth of his contention. Omission to convey this idea to the jury is prejudicial error.</p> <p>3. In an action for personal injuries received by a sixteen-year-old boy, an instruction defining ordinary care as “such care as boys of the age, intelligence, and experience of the plaintiff usually exercise under similar circumstances” is not erroneous, although it would have been more exact had it contained, words importing the idea that the care used must be the care used by the great mass of boys, or by the class of ordinarily careful boys.</p> <p>■_4. In an'action for personal injuries received' by a servant from machinery, an instruction: “You are further instructed that .the danger incident to the feeding of the straightening rolls of the machine, considered apart from the added dangers, if any, ■arising from the presence of the rough edges or slivers on the bars of brass, were open and obvious and are presumed to have been comprehended by the plaintiff, and in respect to which he assumed all risks,” is misleading without an explanation that assumption of risk is a form of contributory negligence or want of ordinary care.</p> <p>5. In an action for personal injuries received in operating a machine, one of the issues was whether the plaintiff did his work with ordinary care, and a question of a special verdict: “Did the plaintiff at the time of the accident feed the machine in the manner usually and customarily employed by experienced men,” is held to relate to evidentiary matter instead of to a material issue.</p> <p>6. When, in an action for personal injuries received while feeding a sheet of brass through the rollers of a machine, the plaintiff admitted that he knew of rough edges, but denied that he knew of the liability of there being slivers on the edge which might ■cause his hand to be drawn into the rolls, the coupling together, in a question of a special verdict, of an inquiry as to plaintiff’s knowledge of liability of slivers on the sheets of brass with an inquiry as to his knowledge of the rough edges is prejudicial to plaintiff.</p> <p>7. In such case a special verdict finding, in answer to one .question, that plaintiff knew there were liable to be slivers on the bars of brass and that he ought to have known of the danger of his glove or hand being caught on them, and, in answer to another question, that he was not guilty of any want of ordinary care which contributed' to the injury, is on its face inconsistent.</p> <p>.8. In an action for personal injuries received by a sixteen-year-old boy in operating machinery, the court excluded answers to questions asked experts bearing on whether the machine in question was a dangerous machine, whether it was so regarded, and whether it was not unusual to set boys at work on it for that reason. Held, that such interrogatories presented questions to be solved by the jury from the facts and circumstances in evidence, and on which the opinion of experts was not admissible.</p> <p>D. The deposition of the employee of a party taken before trial under the provisions of sec. 4096, Stats. 1898, is inadmissible on the trial when the employee is present in court.</p>

<p> Appealable orders: Practice. </p> <p>1. An order in proceedings pursuant to sec. 12105, Stats. 1S98, staying all proceedings in the action until there can be a re-assessment of all the property of the municipality affected, is not ap-pealable. Maynard v. Greenfield, 108 Wis. 670, followed and approved.</p> <p>2. Sec. 12106, Stats. 1898, under which such order was entered, contemplates that the action shall be closed by a judgment; and such order is a mere intermediate direction reviewable on appeal from the final- judgment.</p> <p>'3. In such case it is suggested that it would be proper practice to enter an interlocutory judgment from which an appeal could be taken, and such judgment' would prevent all prejudice to litigants that might otherwise arise under the present condition of the appeal statutes, in the administration of sec. 12105, Stats. 1898.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: OeeeN T. Williams, Circuit Judge.</p> <p>Contest over will of Matthias Mueller, deceased, made the 12th day of November, 1896, when he was sixty-three years of age, and two years and seven months before his death on June 11, 1899. The grounds of attack were mental incompetency and undue influence exerted by his wife, Appolonia, the proponent. The will disposed of .approximately $30,000 worth of property; gave $500 to each of testator’s seven children;; and to the five children of a deceased daughter $100 each;, and the residue to the proponent. The testator went to an acquaintance, Kireher, who was in the insurance and loan business, and requested him to draw his will, and stated to him the terms thereof with the names of all the beneficiaries, except that he remembered the name of one of his grandchildren only as Maggie, and was not sure as to her baptismal name, which, however, he promised to obtain so that it might be inserted. Thereupon Kireher, in the absence of testator, made or'procured to be made a draft of such will, for which testator called at an appointed time, and which he took away with him and later brought back, gave the name of the unnamed grandchild as Margareth, which was inserted, and then executed the will in the presence of Kireher and his clerk. A large amount of evidence was offered by the contestants tending to show that testator was, in 1896, a sufferer from Bright’s disease; that he had retired from busin'ess two or three years before, and tbat many of Ms acquaintances noticed more or less imperfection of memory and lack of coherence in his conversation, and general feebleness, both mentally and physically, as compared with previous years. Contestants also offered evidence of many statements by deceased that his wishes as to disposal of his property, either by gifts to his children or by will, were opposed by his wife and that he .could not act against her wishes. Such evidence was objected to as inadmissible upon the issue of undue influence, but perhaps proper upon mental condition. It was received subject to such objections and without ruling. There was also expert evidence from physicians, based upon various hypotheses, tending on the one hand to deny, and on the other to assert, testamentary capacity. On the issue of undue influence, except for a few trifling instances of evident obedience in household affairs by testator to his wife, the contestants’ evidence mainly consisted of testimony of several of the contesting children to admissions made by the proponent that the will had been made in accordance- with her requests or demands, and differently from the scheme to which testator himself was originally inclined. In defense, the making of any of these admissions was denied. The narrative of the transactions between testator and the scrivener, at which the former’s wife was not present, was relied on, and the testimony of at least one witness that some two years after the making of the will testator told him of it, and expressed his belief that it was in accordance with justice :and fairness. The will was admitted to probate by the county court and, upon appeal and new trial before the circuit court and a jury, at the close of the evidence the jury were excused from rendering any verdict, and the court made findings in favor of mental capacity and against undue influence, and affirmed the order of the county court. From that judgment several of the children of testator by a former wife appeal.</p>

<p> Appeal and, error: Findings, when disturbed: Fire insurance: Loss: Provisions of policy: Fraud: False swearing: Special verdict: Records of internal revenue department: Admissibility: Secondary evidence: Actions: Conditions precedent: Exceptions: Objections, how taken. </p> <p>1. Respecting the question whether a verdict is sustained by the evidence, and the ruling of the lower court thereon, the' supreme court will set aside the findings of the jury only when there is no evidence to sustain the verdict, or where, though there he some evidence in its support, still the great weight of the evidence is against it, and that weight is so reinforced by all the reasonable probabilities and inferences that it becomes overwhelming.</p> <p>2. In an action to recover for loss under an insurance policy containing a provision: “This entire policy shall be void in case of any fraud or false swearing by the assured touching any matter relating to this insurance or the subject thereof, whether before or after loss,” the court instructed the jury: “If you find that the plaintiffs wilfully included in the proofs of loss property removed by them, and such removal or disposition would secure no advantage to the plaintiffs in the adjustment and payment of the loss under the policy of insurance, to the prejudice or injury of the defendants, and would not be liable to have that effect, then there is no legal fraud, unless you find that such acts on the part of the plaintiffs were liable to deceive the defendants and cause them to pay more than they in justice ought to pay,” which instruction was given in connection with a question of the special verdict: “Did the plaintiffs, prior to the fire, remove from their factory or dispose of any tobacco or cigars which they afterwards knowingly, wilfully, and with intent to defraud the defendants included in their proofs of loss.” Held, that such instruction, under the circumstances disclosed by the evidence, stated in the opinion, was not a proper statement of the law, was misleading, and therefore prejudicially erroneous.</p> <p>■3. In such ease the fact that the jury found that the amount of plaintiffs’ property was more than the amount of loss does not render the instruction any less prejudicial.</p> <p>4. Under a clause in a fire insurance policy: “Tliis entire policy shall be void in case of any fraud or false swearing by the assured touching any matter relating to this insurance or the subject thereof, whether before or after loss,” the presence of the words “false swearing” in connection with the word “fraud” indicates that either wilful fraud or false swearing is designed to have the effect of defeating the policy, regardless of the ultimate effect of the false swearing upon either party to the contract.</p> <p>5. In such clause the word “fraud” is used in connection with the words “false swearing” to cover frauds otherwise than by false ' swearing.</p> <p>6. It is error to intimate or make known to a jury the effect of their answers to questions submitted in a special verdict.</p> <p>7. Under the laws of the United States and the rules and regulations of the treasury department made in pursuance thereof, respecting internal revenue, the officers of the department cannot be compelled to produce their books in evidence or disclose their contents, and copies of such books are not obtainable except under the regulations prescribed by the department. Held, that no effort having been made to obtain evidence contained in such books in the manner provided by law, and the records themselves not being admissible, it was not error to exclude testimony of a witness who had examined such books as to their contents.</p> <p>8. Such records being privileged and to a certain extent quasi-confidential communications, a litigant has no right to the use thereof upon any other basis than such as may be fixed by the United States or under its authority.</p> <p>9. In an action on fire insurance policies containing a provision that the assured should submit to examinations under oath as often as required, it appeared from the record that one of the plaintiffs appeared before a court commissioner and submitted to an examination of considerable length; that as to many inquiries it did not appear that the witness had personal knowledge of the facts about which she was interrogated, and frankly admitted she did not know, but proffered examination of her manager, whom she said knew the facts, and also offered all books and information under her control. Held, there was no-violation of such provision of the policies, and no error, predicated on such violation, was committed in failing to hold that ■the action was prematurely brought.</p> <p>10.It appeared from the record returned on appeal that it contained a statement that appellants duly excepted to portions of the charge to the jury underscored in the body of the charge; that the portions of the charge relied upon as excepted to were underscored, and, in the hill of exceptions, that there were particular specifications of the portions of the charge excepted to, setting out under separate heads the language complained of. Held, that the exceptions were sufficiently taken.</p> <p>11. Appellant has a right to make specific objection to the particular part of the charge objected to, and is not obliged to embrace parts of the charge not objectionable in the exception for the purpose of completing a sentence under a separate exception.</p> <p>12. The object of exceptions is to bring to the attention of the court the particular matter objected to.</p>

<p> 'Appeal and error: Direction of verdict: Experts: Qualification: Evidence: Competency: Photographs: Identification: Cross-examination: Redirect examination: Instructions to jury. </p> <p>1. Where, on a first appeal, a judgment in favor of plaintiff was reversed for erro-r, on a second appeal a judgment of nonsuit was reversed and a new trial ordered, and on the third appeal the evidence was close upon some material questions, it cannot he said, as matter of law, that there is error in refusing to direct a verdict in favor of defendant.</p> <p>2. In an action for the death of plaintiff’s intestate, caused hy the bursting of a wooden tank containing distilling slops, plaintiff interrogated a witness called as an expert as to the liability of lactic acid in the slops percolating through the tank and corroding the iron hoops. Held, under the evidence, stated in the opinion, that the witness was not qualified to testify as an expert and that the admission of his testimony was error.</p> <p>3. Where, on a former appeal, photographs were held improperly admitted in evidence because the evidence did not sufficiently identify the subject photographed, and, on a subsequent appeal, in view of the testimony on the second trial, it was held error to exclude such photographs, and on the instant appeal it appeared that the evidence tending to establish such identity was much more full and convincing than on the last previous trial, it was held that the photographs were properly admitted in evidence, and that there was no error in refusing to strike them out.</p> <p>4. It is error to exclude answers to questions put on redirect examination explaining a witness’s testimony on a former trial, where the witness has been asked on cross-examination as to what was his testimony on such former trial.</p> <p>5. Such error is cured by a subsequent offer, with the acquiescence of the court, to'allow such testimony to be given without objection and the declination of such offer.</p> <p>■6. An instruction to the jury: “The burden of proof as to the second question and as to every other question of this verdict except the last question — being the one in regard to damages, — is upon the affirmative; that is to say, you will not answer any of these questions by ‘Yes’ unless you are satisfied by the preponderance or greater weight of all the evidence in the case that the fact or facts which you find by such affirmative answers are true and correct,” is misleading and erroneous, and equivalent to saying that upon the question of damages the burden of proof is not upon the party seeking to establish the affirmative, and is held not cured by specific instructions on the question of damages.</p>

<p> Brolcers: Contract: Performance: Evidence: Admissibility: Appeal and error: Curing error: Increased value. </p> <p>1. When a broker contracts to procure a purchaser for real estate on commission it is not essential that he should himself bring the purchaser bodily to the owner, but it is sufficient if through his efforts a person is found within the time limited, or if no time is limited within a reasonable time, who comes to the owner ready and willing to purchase the property at the required price.</p> <p>2. In an action by real-estate brokers for commissions, the evidence, stated in the opinion, is held sufficient to sustain a verdict for plaintiffs.</p> <p>3. In an action by real-estate brokers for commissions, it was claimed by the defendant that the sale was in fact made through the efforts of another broker, and the defendant was asked to state the circumstances under which an option, which preceded the sale, was finally made, and a general objection to the question was sustained. Held error, but cured by subsequent testimony.</p> <p>4. In an action by real-estate brokers to recover commissions, under the evidence it is held that the rule that where the condition or value of the property has materially changed between the first interview with the broker and the time of the sale it is the duty of the broker to consult his principal and ask for new instructions before making a sale, had no application.</p>

<p> Master and servant: Personal injuries: Evidence: Special verdict: Material questions: Negligence: Simple tools; Monkey wrench: Uncovered gearing: Instructions to jury: Proximate cause. </p> <p>1. In an action for personal injuries received by a servant from machinery, while on many questions there was substantial conflict, and what might he deemed a preponderance of the evidence against the verdict, it is held that there was credible evidence from which the jury might have reached their conclusions expressed in the special verdict.</p> <p>■2. Where the jury in the special verdict have found that the defendant had actual knowledge of the defects which were claimed to have caused personal injuries to a servant, a question of said verdict: “Ought the defendant by the exercise of ordinary care to have known that the 'wrench was defective before plaintiff was injured,” is immaterial.</p> <p>:3. Generally speaking, in case of simple tools no liability rests on the master for the ordinary perils resulting from their use, nor for those latent and usual defects or weaknesses which, by reason of the common, usual character of the appliance, are presumed to he known to all men alike, hut such exemption is based on the condition that the defect and peril are such that no superiority of knowledge of the master over the employee exists or can he presumed.</p> <p>4. As to simple tools and appliances the exemption of the master from the duty to inspect to ascertain the development of defects and disrepair in the course of their use is based upon the assumption that such conditions are as much within the observation, if not more so, of the employee as of the master.</p> <p>.5. Such exemptions from liability are not in denial of the general underlying principle of the law of negligence that one who knowingly exposes another to likelihood of injury is liable therefor, in the absence of consent by such other or of contributory negligence.</p> <p>'6. In an action for personal injuries to a servant it appeared, among other things, that plaintiff .was injured while using a monkey wrench; that the screw intended to move and hold the jaws of this wrench was so defective that it would not accomplish the latter purpose under pressure; that such fact was brought to the actual notice of defendant’s representative a week or ten days before the accident; that the defect was not such as to be obvious to one. attempting to use the wrench, and that the wrench was expected to be used, as it was, in tightening or loosening nuts upon running machinery with exposed gears. Held, that the jury might have considered it within the realm of ordinary expectation that, when so used, the jaws of the wrench would be likely to,part, allow the wrench to slip, and the hand of plaintiff come in contact with the gearing to his hurt, and hence it cannot be said, as a matter of law, that there was no evidence to support liability for the injury so occurring.</p> <p>1, In an action for personal injuries to a servant it appeared, among other things, that the injury resulted from contact with uncovered gearing, the presence of which was not only unlawful under sec. 1636;, Stats. 1898, and therefore negligent, but might also have been considered negligence on the part of the defendant independently of such statute. The court failed to submit to the jury as part of the special verdict a question as to whether the defects complained of and absence of warning to the plaintiff were the proximate cause, but did submit a question as to whether there was any want of ordinary care on the part of defendant which proximately caused plaintiff’s injury, which the jury answered “Yes.” There was no instruction that they could so answer only in case they found the defect to have been the natural and probable cause of the injury, but, on the contrary, they were instructed to answer affirmatively in case they so found, and, by separate and independent paragraph, also to answer “Yes” if they found there was any negligence on defendant’s part which was the natural and probable cause. It was conceded that plaintiff had full knowledge of the exposure of the gearing. Held, that the jury might have believed that the exposed gearing was an act of negligence on the part of the defendant, and that it was the proximate cause within the definition given by the court.</p> <p>8. In such case the actual causal relation between the defect in the wrench and the injury cannot be said to exist as matter of law, although it might be found as a fact that one supplying such a defective wrench should, as an ordinarily prudent and intelligent man, anticipate the likelihood that it would be used in such way as to cause injury.</p>

<p> Slander: Statements made before grand jury and to district attorney: Judicial proceedings: Privileged communications: Privileged occasions: Oause of action: Discovery. </p> <p>No cause of action for slander lies for statements and communications made to a grand jury in the course of their proceedings or to the district attorney and his assistants in their official capacities.</p> <p>Words spoken in judicial proceedings, though they are such as impute a crime to another, and therefore, if spoken elsewhere, would import malice and he actionable in themselves, are not actionable if they are applicable and pertinent to the subject of inquiry.</p> <p>Exemption from liability for words spoken on a privileged occasion is not the same privilege recognized in the law as pertaining to confidential communications, but they are privileged upon the ground that they furnish no ground of action for the alleged injury.</p> <p>Proceedings of a grand jury are judicial proceedings. ^</p> <p>In an action for slander for statements made to the grand jury in the course of their proceedings and to the district attorney in his official capacity, the very nature of the complaint shows that the statements made were pertinent and material to the subject under consideration by the grand jury, and that they •were communicated to the grand jury in a judicial proceeding. ir?</p> <p>6. Such communications are made on a “privileged occasion,” and are therefore not actionable.</p> <p>7. Where plaintiff has no cause of action for slander because the words Spoken were communicated to the grand jury in the course of their proceedings, or to the district attorney in his official capacity, it is not error for the circuit court to restrain a court commissioner from punishing for contempt a defendant who refused to answer questions propounded to him touching such communications while being examined as an adverse party under sec. 4096, Stats. 1898.</p>

<p> Trial: Impaneling of jury: Interrogation of opposing counsel: Court and jury: Master and servant: Personal injuries: Defective machinery: Evidence: Burden of proof. </p> <p>1. On the trial of an action for personal injuries to a servant, plaintiff is not entitled to interrogate' defendant’s counsel, either at the bar or on the stand as a witness, as to whether an insurance company is pecuniarily interested in the litigation.</p> <p>2. When the evidence in relation to a controverted question of fact on the one side accords with what must necessarily have been the case under given undisputed and indispensable circumstances, and the evidence on the other side is opposed thereto, there is no room for conflicting reasonable inferences, and hence no question for solution by a jury.</p> <p>3. Whether such situation does or does not exist in any case is a matter for the court to determine, and it should do so even without a motion in that regard. Refusal so to do, in the face-of a proper motion, is no less than the denial of a right.</p> <p>4. In an action for personal injuries alleged to have been caused- hy the improper working of a steam hammer, the construction of the machine is held to present such positive demonstration of impossibility of the accident complained of that the contrary evidence of the operatives of the machine did not raise any conflict for solution by the jury.</p> <p>5. In an action for personal injuries to a servant from an alleged defective machine, satisfactory proof that the machine worked' perfectly both before and after the accident casts the burden, on plaintiff to show that its alleged defective action was caused by a defect in the machine.</p>

<p> Constitutional law: Statutes: Special or private law: Classification by counties: Bonds: Tax levy: Requisites: Formalities: Collection: Treasurer’s bond: Failure to file: Mandatory and, directory provisions. </p> <p>1. Under constitutional limitations classification must he based on ■ substantial and real differences in the classes, which are germane to the purpose of the law and reasonably suggest the propriety of substantially different legislation, the legislation must apply to each member of the class, and the classification must not be based on existing circumstances only, but must be so framed as to include in the class additional members as fast as they acquire the characteristics of the class.</p> <p>2. Ch. 444, Laws of 1903, entitled “An act to authorize the building and construction of viaducts across valleys, gullies, running streams, or railroad tracks by counties in this state of a population of 150,000 or more and for the issuing of county bonds therefor,” is not a special or private law within the prohibition • of sec. 31, art. IV, Const.</p> <p>3. Under ch. 444, Laws of 1903, the classification of counties by population is not based on existing facts only, but is so framed as to admit additional members, is based on substantial and real differences germane to the subject covered by the law, and the characteristics of the class suggest the propriety of the law as applicable to the class, while refusing it to other counties not in the class.</p> <p>4. In an action to restrain the issue of bonds of Milwaukee county, proposed to be negotiated under the provisions of ch. 444, Laws of 1903, it appeared, among other things, that in attempted compliance with sec. 3, art. XI, Const., and said statute, the county board, at the same time that it passed the resolution directing the issuance of the bonds, also passed a resolution providing that to meet the principal and interest thereof “there is hereby levied on all the taxable property of the county in each of the twenty years 1905 to 1924, inclusive, a tax” of one twentieth of the face of the bonds, and also in each of said years the amount of the necessary interest levy. Held, that the action taken was correct and the only action that would satisfy the constitutional and statutory requirements, and was not open to the objections that the board had no authority to levy a tax for any year beyond the then current year, or that some taxes might become delinquent and not paid until after sale, and consequently the entire amount might not be on hand at the time the annual in-stalments fell due.</p> <p>•5. Ch. 444, Laws of 1903, provides that the county treasurer, before he shall receive the bonds issued under its authority or any money derived from the sale thereof, shall execute an additional bond in a specified sum within thirty days after it has been determined to issue such bonds. The county board by resolution of May 9th determined to issue such bonds, and on July 1st, following, the county treasurer filed his bond, which was approved August 8th, but was subsequently discovered to omit some conditions required by the statute, and in September following, and before receiving any bonds or money, he filed a new bond, containing all the necessary conditions, which was duly approved. Held, that the requirement of the statute as to the exact time when the bond should be filed was directory .only, at least so long as it was filed before the treasurer’s duties began, and that failure in this respect to strictly comply with the statute furnished no ground to enjoin the issue of the bonds.</p> <p>•8. Ch. 444, Laws of 1903, provides that bonds under the act shall be of three several denominations, “the number of bonds of such denominations to be fixed by the county board.” Held, that such statute is mandatory to the extent that no bond can lawfully be issued unless it be of one of the denominations prescribed, but does not require that all three of the denominations shall be issued.</p>

<p> Mortgages: Foreclosure: Practice: Writ of assistance: Issuance: Motice: Sufficiency of grounds of motion to vacate: Laches: Failure to seal.writ: Amendment: Waiver. </p> <p>1. Under sec. 3187, Stats. 1898 (providing that from the time of the filing of the notice therein authorized the pendency of the action “shall he constructive notice thereof to a purchaser or incumbrancer of the property affected thereby; and every purchaser or incumbrancer whose conveyance or incumbrance is-not recorded or filed shall be deemed a subsequent purchaser or incumbrancer and shall be bound by the proceedings in the action to the same extent and in the same manner as if he-were a party thereto”), and sec. 3169 (providing, as to the effect of a sheriff’s deed of foreclosure and the confirmation of the-sale, that the same shall vest in the purchaser all the right,. title, and interest of the mortgagor, his heirs, personal representatives, and assigns in and to the premises sold, and shall bar all claim, right, and equity of redemption therein, of and against the parties to such action, their heirs and personal representatives, and also against all persons claiming under them subsequent to the filing of the notice of the pendency of the action in which such judgment was rendered; and the purchaser, his heirs and assigns shall be let into possession of the premises so sold on production of such deed or a duly certified copy thereof, and the court may, if necessary, issue a writ of assistance to deliver such possession), and in the absence of a rule of court in that behalf, there is no restraint upon the circuit court as to the necessary proceedings preliminary to the issuance of a writ of assistance to enforce the rights of a purchaser at a foreclosure sale. The circuit court may or may not require notice of the application to be given the occupant, as in its judgment may seem best in the particular case.</p> <p>2. Under said secs. 3169, 3187, Stats. 1898, as to premises sold under a foreclosure judgment, one who has connected himself with the title by purchase of the equity of redemption after the filing of a Ms ‘pendens, as well as an occupant, actual or constructive, is deemed a party to the action and, therefore, chargeable with notice that the ordinary and usual proceedings in" the execution of the judgment will occur, including the issuing of a writ of assistance.</p> <p>3. The foregoing paragraph has no reference to cases where there is a party in possession under title not reached by the foreclosure judgment.</p> <p>■£. On a motion to vacate a writ of assistance issued to put the grantee of a purchaser at foreclosure sale into possession, it was alleged that the purchase at foreclosure sale was, or should lhave been, made in the interest of the holder of the equity of ¡redemption, under whom the moving party claimed, and that the grantee of the purchaser at the foreclosure sale was chargeable with notice that he was a mere successor trustee to the moving party. The allegations were wholly on information and belief and were unequivocally denied. Held, that the showing made was insufficient to indicate, with reasonable probability, that the claim of the moving party could be maintained, and that the court was justified in denying the motion and in refusing to leave the moving party to his ordinary remedy to test the truth of the matter.</p> <p>6. In the absence of equities superior to or impairing the right of one holding a sheriff's deed issued on a foreclosure sale to apply for a writ of assistance, mere delay on his part is not sufficient to warrant denying,the writ.</p> <p>6. The right to a writ of assistance is not absolute, and while grounds for withholding it, in the court’s discretion, may exist, yet one holding a sheriff's deed on a foreclosure sale, duly confirmed, is prima facie entitled to the writ to put him in possession of the subject of the purchase.</p> <p>7. The omission' of the seal of the court from a writ of assistance is, under sec. 2829, Stats. 1898, an amendable irregularity, and is waived by an appearance and motion to set aside the writ on its merits.</p>

<p> Negotiable instruments: Payment to other than holder: Agency: Mortgages: Payment to mortgagee after undisclosed assignment: Assumption of mortgage debt: Recording of instruments: Notice: Statutes: Estoppel. </p> <p>1. The maker of a negotiable promissory note can satisfy it only by payment to the owner at the time or to such owner’s authorized agent. If the recipient of the money is not actually authorized the payment is ineffectual, unless induced by unambiguous direction from' the owner or justified by actual possession of the note.</p> <p>2. Such rule applies generally to all negotiable paper independently of the existence of any mortgage or other security.</p> <p>3. Such rule seems to be without applicability to defeat effectiveness of payment to the original mortgagee, as against an unknown assignee, where other than negotiable instruments are involved.</p> <p>•4. Where a vendee of lands, at the time of bargaining for the premises, was given the option to buy the premises subject to a mortgage, in that case assuming the debt, or to buy clear of the mortgage upon the payment of the entire sale price to the vendor, and the vendee elected to do the latter, the vendee, as between himself and his vendor, does not become liable for the mortgage debt.</p> <p>5. Sec. 2241, Stats. 1898, declaring void any unrecorded conveyance as against a subsequent purchaser whose conveyance shall first be duly recorded, does not exclude all other adverse effect than that which it denounces against one who neglects to place his conveyance on record.</p> <p>■6. One who acts inconsistently with the truth under such circumstances that, as a reasonable person, he ought to anticipate that another is likely to change his position in reliance on such conduct, will be estopped to assert the truth to the injury of such other.</p> <p>'7. Since the adoption of the system of public registry of conveyances, the custom of prompt registration is so nearly universal that omission may be held to be neglect of those precautions customarily taken to assert a grantee’s rights in land, and hence it is to be expected that one receiving a conveyance will act confidently on the assumption that all rights will appear from such record.</p> <p><8. Plaintiff, owning a mortgage by an unrecorded assignment, knew that the l^ind was held by a dealer in real estate with consequent likelihood of its sale, and it was apparent to the assignee that the record advertised the mortgagee as the person to whom a purchaser must apply, either to clear the title from the lien of the mortgage or for information as to the validity or amount of the lien. Held, that the assignee thereby negligently placed it in the mortgagee’s power to deceive or mislead a purchaser, who, both by law and custom, would have a right to rely upon the record.</p> <p>'9. Such withholding of the assignment from rebord was a persistent declaration to all persons dealing merely with the title that the mortgagee owned the mortgage.</p> <p>10. A mortgage on lands owned by a dealer in real estate was assigned to plaintiff by the mortgagee prior to a sale of the lands to defendant. The vendee in such sale had the option to assume the mortgage as part of the purchase money, or buy clear of the mortgage upon payment to the vendor of the entire sale price, and elected to do the latter. At the time of the consummation of the sale the vendor paid to the mortgagee the amount of the-mortgage and obtained from him a satisfaction of the mortgage, the mortgagee promising to obtain and surrender the mortgage and note within a few days, which he failed to do, hut instead, absconded, a defaulter. The satisfaction piece was delivered to the defendant and recorded before plaintiffs assignment was recorded. There was nothing to impugn defendant’s good faith,, and she paid the full price for the land in reliance upon her attorney’s examination of an abstract showing only the mortgage, the satisfaction of which was delivered at the same time-Seld, that plaintiff was estopped, as against defendant, to deny the mortgagee’s continued ownership and authority to discharge the mortgage, and that therefore defendant held the-land discharged from the lien of the mortgage.</p>

<p> Divorce: Support of children: Judgments: Mollification: Failure to malee payments: Contempt. </p> <p>1. Under sec. 2362, Stats. 1898 (conferring authority on courts to make provision in a divorce judgment for the care, custody, maintenance, and education of the minor children of the parties), sec. 2363 (authorizing revision and alteration of such judgments, and the making of a new judgment concerning the minor children), and sec. 2364 (providing that, where a final division and distribution of the estate is decreed between the husband and wife, it shall not impair the power of the court in respect to revision of allowances for minor children under sec. 2363), the court in which a divorce action has proceeded to judgment has authority to make a new judgment concerning the allowance to minor children as the circumstances of the parents and the benefit of the children shall require, whether or not the original judgment contains any provision concerning such children.</p> <p>2. Where a judgment of divorce made a final division and distribution of the husband’s estate and awarded the custody of the minor children to the wife but made no provision for the minor children, the court may properly modify the judgment by requiring the husband to pay for their support.</p> <p>3. Where such modified judgment specifically declared the allowance for the minor children to be á lien upon the husband’s realty, such judgment may be enforced by contempt proceedings.</p>

Halsey, Circuit Judge. It appears from the record and is undisputed that the defendant and one Kleppe, as independent contractors, were engaged in taking down and removing a certain building, three stories high and veneered with brick, situated on the southeast corner of Jefferson and Knapp streets in Milwaukee.

<p> Qifts: Promise to malee: Enforcement: Parties: Executors and administrators: Trusts: Estoppel: Joinder of causes of action. </p> <p>1. Actual delivery of the property is essential to the validity of a gift. The delivery as a gift of the promisor’s own note is not a delivery of the property, hut a mere promise to deliver it, and not enforceable.</p> <p>2. Plaintiff filed against the estate of defendant’s intestate a promissory note signed by the intestate and also by defendant, her husband, as an individual, the note being without any consideration. Plaintiff was not related to the parties to the note, but was brought up in their family. The intestate had theretofore named plaintiff as a beneficiary in a will which was revoked at the same time the note in question was executed and delivered. The defendant at the same time named the plaintiff as a beneficiary in a codicil to his own will, which, with the codicil’ and note, was delivered to plaintiff. It also appeared that defendant was sole heir at law of his intestate. Held:</p> <p>(1) The note was a mere promise to make a gift in the future and hence not enforceable against the estate.</p> <p>(2) The note being filed as a claim against the estate for a debt supposed to be due from it, tbe defendant was defending in bis representative character as administrator only, the estate being the real defendant</p> <p>(3) Any trust or estoppel which could be invoked against the defendant in respect to such note affected him only as an individual and not as administrator.</p> <p>(4) Being sued as-administrator in a pure action at law, defendant could not be held as an individual upon an entirely different cause of action in equity.</p> <p>:3. A cause of action to enforce a trust or estoppel against a defendant as an individual cannot be joined with or converted into a cause of action against him as administrator.</p>

'Appeal from a judgment of tbe circuit court for Douglas county: A. J. Vistje, Circuit Judge. Tbe plaintiff is a railroad corporation operating a railroad line from St. Paul, Minnesota, to tbe city of Superior, and owning and operating docks and warehouses in the city of Superior for the discharge and storage of freight, as well as the transfer of through freight from its cars to lake carriers, and vice versa,.

Dice, Circuit Judge. Appeal from an order sustaining demurrers to tbe complaint. Tbe facts relied upon for a cause of action were these: Tbe defendant Germantown Tanners’ Mutual Insurance Company is a corporation created and existing under cb. 218 of tbe Laws of Wisconsin for tbe year 1854, and tbe defendant Germantown Insurance Company is a corporation ■existing under cb. 89, Stats. 1898, and cb.. 229 of tbe Laws of Wisconsin for tbe year 1903..

<p> Pleadings: Inconsistent defenses: Joinder: Patents and patent rights: State regulation: Statutes: Constitutional law: Evidence: Hearsay: Prejudicial error: Fraudulent representations: Officers of corporations: Witnesses: Competency: Depositions: Trial: Production of testimony: Discretion: Special verdict: Form; Instructions to jury. </p> <p>1. TJnder see. 2657, Stats. 1898, a defendant may plead as many defenses and counterclaims as lie may have, even though they are based on inconsistent legal theories, and hence he may join a defense of fraud for which rescission is sought and a counterclaim for payments made, with a counterclaim for breaches of the same contract.</p> <p>2. Ch. 438, Laws of 1903, amending ch. 268, Laws of 1901 (requiring all promissory notes or other evidence of indebtedness, taken or given for any patent, patent right, or interest therein, to have written or printed thereon in red ink the words: “The consideration for this note is the sale of a . . . patent, patent right - . . or interest therein,” prescribing a penalty for failure so1 to do, and making such note or other evidence of indebtedness nonnegótiable), is an invasion of sec. 4898, R. S. of U. S., and unconstitutional and void because in conflict with sec. 8, art. I, Const, of R. S.</p> <p>■A. In an action on a note given for the purchase of a patent right, one defense was that defendant was induced to give the note by the false and fraudulent representations of plaintiff. The special verdict, as originally submitted to the jury, contained the question: “Did the defendant, at the time he talked with Mr. R. [one of plaintiff’s officers] relative to an extension of the time of payment of the note, have knowledge of all facts and circumstances which he now claims to know?” which, before ' rendition of the verdict, was withdrawn from the jury. The evidence, stated in the opinion, was not undisputed. Held, that the court’s ruling was error.</p> <p>4. In an action on a note given for a patent right, in which the defendant pleaded as a defense the false and fraudulent representations of the plaintiff inducing the purchase of the patent right, statements made on the part of plaintiff to other persons, not in the presence or hearing of defendant, some of them long after tlie execution of the note, are not admissible to prove bad faith, and an actual intent to deceive on the part of the plaintiff.</p> <p>5. Newspaper articles, circulars, pamphlets, etc., many of them never seen by defendant, and some of them not in print until after the making of the note, are likewise inadmissible.</p> <p>6. The admission of evidence of similar transactions between plaintiff and other persons in ho way involved in the litigation, offered to show fraudulent intent, is prejudicial error.</p> <p>7. Representations, to be fraudulent, must relate to a present or past state of facts.</p> <p>8. Relief as for deceit cannot be obtained for nonperformance of a promise looking to the future.</p> <p>9. A mere expression of opinion or belief as to the value or quantity of an article sold, if so intended and understood, is not a representation of a fact, and, though false, does not amount to fraud.</p> <p>10. Whenever there is doubt as to.whether a statement is a mere expression of an opinion or a statement of fact the question must be determined by the jury or court.</p> <p>11. False representations, to be actionable, must be relied upon by the purchaser, and be of such character and made under such circumstances as to justify the purchaser in relying upon them.</p> <p>12. The president, secretary, or other principal officer of a corporation is, in effect, a party to the action, and his examination taken under sec. 4096, Stats. 1898, so far as competent, is independent evidence in the case, notwithstanding his presence in court. It is otherwise, in the case of an employee.</p> <p>13. No abuse of discretion In rejection of testimony can be predicated on the limiting of the respective parties to fifteen witnesses on the question of the utility of a device covered by a patent. '</p> <p>14. It is contrary to the spirit of the statute governing special verdicts for the court to submit several questions together, and instruct the jury that they are so submitted because the instructions given applied equally to each, and then submit the same number of other questions, each of which was dependent upon the answer to one of such first questions.</p> <p>15. In an action on a note given for a patent right one question submitted as part of the special verdict was whether, at the time of giving the note, the patented device had any practical utility for the purposes for which it was patented, and an instruction on that subject, that the jury must confine their “inquiry to the purposes named in the patent and those only,” without stating the full purpose of the patent, is held misleading, although the jury were allowed to take the patent to their room and construe it for themselves.</p> <p>16. In such, case it was error to refuse to instruct the jury that they must answer such question “Yes,” unless it was established that the device was of no practical value; that if the device was of any practical utility then they should answer the question in the affirmative.</p> <p>17. In an action on a note given for a patent right it was alleged that the patent was of no utility and that the plaintiff induced the defendant .to give the note by false and fraudulent representations, and it was held error to refuse a requested instruction to the effect that if defendant had full opportunity to investigate the operation of the device, and there was no concealment or fraud on the part of the plaintiff, then it became the duty of the defendant to investigate and form his own opinion as to the value and utility of the patented device, and that he could not rely upon mere expression of opinion made by the officers and agents of plaintiff.</p>

<p>Cebtioeael (1, 3, 4) Cause of action: Quasi-judicial tribunals: Discretion. (3-7, 11) Parties. (3, 6-8, 11-13, 24) Jurisdiction: Jurisdictional error. (12, 13, 23, 24) Use of writ: What may be reviewed.</p> <p>State Boabd or Dental Examinees. (8-10, 17, 27, 32, 36-38) Licensing of dentists: Dental colleges: Adjudication as to status: Reputability: Evidence: Presumptions. (14) Character of authority of board. (18) Procedure: Due process of law. (25, 27, 32, 33, 35-38) Powers of board: Exercise: Making rules: Notice of contemplated action.</p> <p>Constitutional Law. (15) Judicial powers. (16) Legislative powers. (19) Dwe process of law. (26) Delegation of legislative powers. (28-31) Police regulations.</p> <p>Actions. (1, 2) Place of trial. (17) To determine status of persons.</p> <p>Couets. (20-23) Circuit courts: Appellate jurisdiction: Supervision of inferior courts and jurisdictions: Use of writ of certiorari. (21) Right of appeal.</p> <p>Definitions. (1) "Action.” (2) “State officer.” (5) “Party.” (15> “Judicial powers." (16) “Legislative powers:” “Legislative discretion:” '“Administrative discretion.” (30) “Reasonable,” as: applied to police power. (34, 38) “Reputable,” as used in law regulating the practice of dentistry.</p> <p>Relator was accorded the certiorari remedy to vacate a sentence of nonreputability. There was a motion to change the venue to Dane county, under ch. 366, Laws of 1905, relating to actions against state officers. It was denied. Prior to May 27, 1903, ch. 56c, Stats. 1898, relating to dentistry, provided for a hoard of five members, appointed by the governor, a majority to be from the Wisconsin State Dental Society. It was required, upon the faith of his diploma, to license to- practice dentistry, any regular graduate of a reputable incorporated dental college requiring candidates for graduation to take two full courses of lectures, of five months each. Said chapter, by ch. 411, Laws of 1903, was changed, making the mandatory feature as to issuing licenses discretionary, giving the Dental Society power to nominate a majority of the board, and fixing as the requisites for an efficient diploma, reputability of the college in the judgment of the board, preliminary education of matriculants enough for entrance to the junior class of an accredited high school, and four courses of lectures of at least seven months each, in separate years. It remained silent as to the board’s controlling examinations for matriculation. Prior to March 1, 1902, a custom existed permitting matriculants to make up entrance deficiencies the first year. Prior to the occurrences material here, the board ruled thus: entrance qualifications shall be equal to those required for entrance to the junior year of a high school; examinations shall be conducted by the superintendent of public instruction, or his appointee; three full courses of not less than seven months each, in separate years, shall be required for graduation, as to students matriculating prior to the session of 1903-1904, and one additional course commencing with such session; colleges shall not charge students less than one hundred dollars per term nor rebate advertised fees; no student shall be receivfed or retained, deficient in entrance qualifications, and compliance with such rules shall be a condition of reputability. The change as to entrance qualifications was unknown to relator till it became morally bound to accept students for 1902-1903 as before. Six so accepted were made freshmen and academic students as well. They made up the deficiencies dui’ing the year. June 15 to June 20, 1903, inclusive, the board considered conduct of relator as aforesaid, also as to rebates and ■other alleged transgressions, resulting in its being adjudged reputable, though censured on the second point and admonished against further transgressing. Thereafter it was mooted as to whether the students should have credit for the year partly spent in preparation. The board ruled negatively. Nevertheless the students were otherwise registered. Before graduation day, according to such registration, relator indicated willingness to comply with the board’s will to save condemnation. An action was then commenced against it by a student to test the matter, the board being given opportunity to defend, which it declined. The decision was against the relator. The board formally and without notice condemned it as not reputable, upon failing to obtain a more definite answer, as to whether it purposed obeying the court without further contest, than that it did unless notified by the board not to do so and that otherwise it would be deemed not reputable. Such decision was reversed for judicial error.</p> <p> Controlling Principles. </p> <p>1. An independent proceeding commenced by an original writ, such as certiorari, mandamus, and the like, is an action under sec. 2695, Stats. 1898.</p> <p>2. The ordinary meaning of “state officer” is head of a state department, such as governor, secretary of state, and the like. It should be thus restricted when used without circumstances indicating any other intent.</p> <p>3. Where a decision by a gwcm-judieial tribunal affects injuriously and with substantial directness one not a party to the record having no other efficient legal remedy, he may, in the discretion of the court possessed of the jurisdiction, have the use of its writ of certiorari to remedy the wrong as to jurisdictional errors.</p> <p>4. If in the exercise of sound judicial discretion an injured person ought to be accorded an original writ of certiorari, it is an abuse of authority to refuse it.</p> <p>5. The rule that no one but a party is entitled to use the remedy of certiorari is to be regarded as using the term "party” in its broad sense: that of including all persons injuriously affected with substantial directness and having no other efficient legal remedy, whether they are parties to the record or might properly be such.</p> <p>6. When the writ of certiorari is granted to one neither a party to the record nor necessary thereto, — the tribunal in the proceeding sought to be reviewed having jurisdiction of the party or parties and of the subject matter, — such writ reaches only jurisdictional errors committed in deciding a matter within its jurisdiction to decide,'proceeding properly. 7. When the proceeding to be reviewed was direct against person or property, the personal right being the only one involved or being one coupled with another primary right, he is a necessary party and, if not brought in by proper citation, a writ of cer-tiorari in his behalf will reach jurisdictional error as to proceeding at all in the matter and excess of jurisdiction as well.</p> <p>8. A decision as to the status of a dental college, incidental to passing upon an application for a license to practice dentistry, based on a diploma issued thereby, is within the rule stated as regards discretionary authority to permit the use of the writ of certiorari to correct jurisdictional errors.</p> <p>9.It is proper, in administering the law regulating the practice of dentistry, for the official hoard, of its own motion, or on petition of a college of which it has jurisdiction, to adjudicate its status as regards reputability.</p> <p>10. The adjudicated status of a college is presumed to continue till the presumption shall have been reasonably rebutted, under the . general rule that “when the existence of a person, a personal relation, or a state of things is once established by proof, the law presumes that the person, relation, or statq of things continues to exist as before, until the contrary is shown, or until a different presumption is raised, from the nature of the subject in question.”</p> <p>11. If the status of a dental college is adjudicated in an action in rem, whether the proceeding is solely against the res or one to pass upon an application for a license and against the res as well, such college may properly be accorded the certiorari remedy to test the decision for jurisdictional error, either as to the subject matter or excess of jurisdiction.</p> <p>12. The writ of certiorari is not usable as a means of reviewing legislative discretion, or judicial discretion, or a determination which is strictly a usurpation in that it was pronounced by one having no authority or semblance of authority.</p> <p>13. The writ' of certiorari on behalf of a proper applicant is a proper means of testing, for jurisdictional error, the decision of a ffíicm-judicial tribunal having authority, under some circumstances, to deal with the subject involved, or of a tribunal of such dignity that its action in the matter might probably be injurious to such applicant if allowed to stand unchallenged.</p> <p>14. The authority of the board, under the law regulating dentistry, to pass upon the reputability of colleges, is neither legislative nor judicial but is quasi-judicial: that species of authority commonly intrusted to individuals, boards, or commissions to determine matters of fact when that is essential to the performance of administrative duties.</p> <p>15. The judicial authority of the constitution is power to administer remedies for remedial rights, formerly exercisable exclusively by courts: to make judicial decisions, strictly so called, in actions or special proceedings and to enforce the same.</p> <p>16. Authority which, by the constitution, is vested in the legislature, is the power to make law. It may be exercised, leaving in the particular instance to some other agency the duty of % determining questions of fact essential to the application thereof. The former involves legislative, the latter administrative discretion.</p> <p>17. When the condition of a person, the thing denominated status, is a matter of public concern, it is a proper object to be dealt with and settled hy a direct proceeding in any tribunal haying jurisdiction of the res, and that applies to the status of a college under the system of legislative regulation of the profession of dentistry.</p> <p>18. Where the subject matter involved in a judicial or gwcm-judicial proceeding is the intangible thing denominated status, the proceedings in respect thereto requisite to a legitimate determination are the same as in a case where the subject matter is of a tangible character.</p> <p>19. In any such case the rule applies that no one shall be condemned in his person or his property without first having had his day in court according to the law of the land: the fundamental principles of justice.</p> <p>20. The constitutional grant of appellate jurisdiction given to circuit courts does not include authority to review the proceed- ' ings of an inferior tribunal on the merits by the use of a writ of certiorari. The use thereof, to commence an action, relates to judicial authority to supervise inferior courts and jurisdictions.</p> <p>21. The appellate jurisdiction of the constitution is one thing, the right of appeal is another. The latter is a creature of the legislature and does not exist where the legislature has not acted.</p> <p>22. The power of superintending control given to circuit courts is limited by means afforded for its exercise: the functions of the original writs referred to in connection with the grant, all of which appertain to matters of jurisdiction.</p> <p>23. The writ of certiorari was, by the constitution, made an appurtenance, as before, to the jurisdiction of superintending control, with its common-law function in that regard and that only. Such function extends wholly to matters of jurisdiction, as regards independent proceedings.</p> <p>24. Jurisdictional error, as to a court proceeding according to the course of the common law, relates to the person or the subject matter. Such error as to other tribunals extends to clear errors of law, such as deciding an issue of fact one way when the reasonable inferences from the evidence so strongly point the other way as to leave no reasonable basis for the decision.</p> <p>25. The law governing the board of dental examiners does not confer thereon power to do more than to execute the legislative will along lines expressed by it with reasonable definiteness. The mere making of reasonable rules to be followed in performing administrative duties, is not the exercise of legislative authority.</p> <p>26. The true distinction between delegation of power to make law and delegation of power to administer law is this: the former contemplates exercise of discretion as to what the law shall he, the other exercise of discretion in the administration of law.</p> <p>27. The implied grant of authority to the dental hoard to determine the status of a dental college, no reference being made to the subject of notice thereto and opportunity to' he heard, does not suggest power to proceed in that regard without such notice: on the contrary, it implies action in accordance with the fundamental principles of justice.</p> <p>28. The legislature may properly designate any agency it sees fit within the state, reasonably calculated to act justly in the matter, to nominate persons for appointment to administer its mere police regulations.</p> <p>29. The police power includes legislative authority to make all regulations reasonably necessary or conducive to the public welfare.</p> <p>30. The word “reasonable” limits the police power, both as to subjects to be regulated and the character of the regulation, by express constitutional inhibitions and implied ones as well, and the judgment of the judiciary as to what is within the realm of such subjects and reasonable, fair doubts in all cases being deemed sufficient to turn the scales in favor of legislative authority whenever it shall have been asserted.</p> <p>31. There is no such thing as a police power which is above the constitution, or which justifies reasonable or any violation of express constitutional prohibitions or manifest implied ones; the power is hedged about on all sides by constitutional restraints with the judiciary to stand guard at the boundaries.</p> <p>32. The feature of the dental law prescribing conditions upon which a diploma from a dental college may be received as sufficient evidence of qualifications to permit of a license to practice dentistry being issued to the holder thereof without examination as to his fitness, does not deny or prejudice the right to study for such profession.</p> <p>33. The dental board, in passing upon a question within its jurisdiction to solve by the exercise of judgment, is supreme, so long as it proceeds to a reasonable conclusion upon evidence bearing on such question.</p> <p>34. The meaning of the word “reputable” as used in the law regulating the practice of dentistry is “worthy of good repute;” it relates to real character, not to mere reputation in that regard. (On this Maeshall, J., dissents.)</p> <p>35. The power conferred upon the dental board relates to reasonable administration of matters appertaining to the public welfare, not to interferences with the internal management of dental colleges.</p> <p>36. The law for the regulation of the practice of dentistry does not authorize the official board to invade the private affairs of a. dental college in respect to its rate of tuition or whether it shall grant concessions from advertised rates or by taking charge, in invitum, of its examinations as to entrance qualifications.</p> <p>37. A statutory requirement as to educational qualifications for entrance upon a course of study at a dental college as a condition of the diploma eventually awarded being prima faaie sufficient to prove qualifications for the practice of dentistry, unaecomr panied by a prohibition of the common practice of allowing students to make up, in some reasonable degree, deficiencies in preliminary education during the first year after matriculation, must be presumed to contemplate such practice and the continuance thereof.</p> <p>38. Reputability, as the term is used in the dental law, relates to that which will enable the college to do good work and the actual accomplishment thereof; it is separate and distinct from other requisites as to a diploma being a passport to the favor of the official board as regards the issuance of a license. It may or may not exist, and all the other requisites be present.</p> <p>[Syllabus by Marshall, J.]</p>

<p>'Appeal from a judgment of tbe superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>Tbe complaint of tbe plaintiff alleged tbe election of defendant Scbramka as its treasurer in March, 1903, and tbe subsequent giving of a bond witb tbe other two defendants as sureties, conditioned, among other things, that said Scbramka “shall, at all times, in and during any succeeding term for which be may hereafter be elected as such treasurer” perform bis various duties as treasurer, including tbe keeping of books, accounts, and vouchers, and tbe accounting for all moneys, books, notes, mortgages, and other instruments in favor of tbe society during bis continuance in said office, and tbe proper disbursements and accounting for all moneys that should come to bis bands, and tbe delivery and payment to bis successor of all property and moneys; that, by mistake of tbe scrivener and contrary to tbe intention of all parties, there was omitted in tbe above quotation, after tbe word “during,” tbe words “tbe term for which be was elected and,” and that tbe intention of all parties was to execute a bond having such omitted words in it. Tbe complaint further generally alleged that the defendant Scbramka bad breached bis duties, misappropriated moneys, and failed to keep or make any account •or record of transactions, and that be bad paid out large ■amounts of money contrary to regulations and without proper authority; that be bad failed to report or pay'over to tbe society moneys collected by him for it; that be bad received upwards of $100,000 and bad failed to account therefor, and bad failed to pay or account to bis successor for the balance of' $14,822 remaining in his hands, and that of said sum he had pretended to loan $4,000 to himself, contrary to the regulations of the society, upon a pretended second mortgage; that as to many of the details of said money transactions the plaintiff was ignorant by reason of said Schramka failing to keep or file any accounts. The complaint concluded with a prayer for the recovery from all of the defendants of said sum of $14,822. On motion of defendant Nahielski the court ordered that the complaint be made more specific in certain definite respects. Within the time limited for answering the complaint, and after said order, the plaintiff filed an amended complaint setting up all that was in the original one, besides another alleged misappropriation of the sum of $2,000, and more fully and definitely asserting the inability of the plaintiff to state any further details by reason of knowledge with reference thereto being in the defendant Schramka and having been wrongfully withheld from the officers of the society, and prayed (1) a-reformation of the bond by inserting the words making it applicable to the term for which Schramka was elected; (2) for discovery and accounting by Schramka of his transactions and arrearages; and (3) for judgment for the amounts so ascertained in the sum of $14,822. This amended complaint was-returned by defendants, upon the stated reason that it attempted to change the cause of action from law to equity and that it did not contain facts sufficient to constitute a cause of action, and they moved that said amended complaint be stricken out and that the original complaint be dismissed for failure to comply with the order to make more specific. Whereupon the court ordered said amended complaint to be' stricken out with leave to plead over within ten days. Thereupon the plaintiff gave formal notice of its intention to stand upon the amended complaint and its refusal to serve another. Whereupon judgment was ordered and entered dismissing the-plaintiff’s complaint, and adjudging that the plaintiff take-nothing thereby as to the defendant Nalcielski, in whose favor ■costs were adjudged. Erom this judgment plaintiff appeals.</p>

<p> Landlord and tenant: Constructive eviction: Rents: Instructions to jury: Measure of damages: Fvidence. </p> <p>1. Where a tenant asserts eviction from the rented premises, actual expulsion is not necessary, hut any act of the landlord or of any one who acts under authority or legal right given him by the landlord, wMcli so disturbs tbe tenant’s enjoyment of tbe premises as to render tbem unfit for occupancy for tbe purposes for wbicb they are leased, is an eviction, and, whenever eviction takes place, tbe tenant is released from tbe obligation under tbe 'lease to pay rent accruing thereafter.</p> <p>2. In an action for rent it appeared, among other things, that plaintiff leased to defendant a room for an art studio, and afterwards leased tbe room underneath to an automobile company, that tbe shaking and vibration of tbe building and her room, caused by tbe operation of automobiles in tbe building and under her apartment, prevented her from conducting her vocation and business, and that therefore she was compelled to leave tbe premises before her lease expired. Held, that tbe defendant was evicted from tbe rented premises.</p> <p>3. In such case it further appeared that tbe shaking and vibration complained of was caused by tbe testing of tbe automobiles, wbicb testing was incident to tbe regular conduct of tbe automobile company’s business and not confined to engines undergoing repairs; that tbe tenant’s room was located over that part of tbe display room where this testing was done, and that the testing was not unnecessary or unusual.' Held, that such shaking and vibration was necessarily within tbe contemplation of tbe parties when tbe lease to tbe automobile company was made.</p> <p>4. In such case it further appeared that upon tbe complaint of the-tenant tbe landlord investigated tbe matters, and, after observing from tbe tenant’s room tbe effect of tbe testing of the-automobiles, took no steps to prohibit tbe automobile company-from continuing to make the. tests. Held, that tbe court did not. err in ruling that tbe acts of those in charge of tbe automobile-business were within tbe rights granted tbem by tbe landlord' under their lease, and that it was not error to instruct tbe jury: “Under tbe evidence in this case tbe presumption stands uncontradicted that tbe automobile company, under their lease, bad a right to test their machines, and to do what they did.”</p> <p>5. On an issue as to tbe damages for breaking a picture belonging; to an artist, tbe measure of damages is tbe pecuniary loss suffered by tbe breakage — the diminution in tbe market value of tbe article injured, — and hence it is not error to strike out testimony as to tbe value of tbe broken picture, as a design,, apart from its market value.</p> <p>6. Where a landlord permits a tenant in bis building to conduct. business so as to result in tbe eviction of another tenant, expenses incurred by tbe tenant in removing from tbe building, and loss of time in bis employment on account of such removal, are held proper elements of recovery resulting from tke breach of the landlord’s obligation.</p> <p>7. When a lease exempts the landlord from liability for damage occasioned by the “acts or neglect of cotenants or other occupants,” such exemption does not apply to the acts or neglect of cotenants or occupants authorized or committed under any right given by the landlord.</p>

<p> Master and servant: Negligence: Personal injuries: Fellow-servants: Incompetency: Evidence: Vice-principal: Assumption of risk: Court and jury: Efficient cause of injury: Conjecture: Opinion evidence: Admissibility: Experts: Discretion: Appeal and error. </p> <p>1. A mere foreman engaged with a crew of assistants, supplied with suitable material and appliances, performing a mere detail of the master’s business — removing a machine from a car to the factory, — is a fellow-servant of the members of the crew, and the master is not liable for his fault in failing to choose a proper plan for the removal of the machine, or in omitting to exercise due care to inform ílís assistants of tie danger of tie operation.</p> <p>2. Incompetence, in tie law of negligence, means want of aiility suitable to tie task, eitier as regards natural qualities or experience, or deficiency of disposition to use one’s abilities and experience properly.</p> <p>3. In an action against a master for tie negligent killing of an employee it appeared, among otier tiings, tiat tie deceased was set at work under tie direction of a foreman to unload a ieavy machine from a railway car; tiat tie foreman was one of tie master’s most trusted employees, thirty-seven years old, and iad occupied iis place of trust and confidence for sevefal years; tiat at tie time of tie occurrence ie iad forty or fifty men under iis general ciarge; tiat ie iad a general knowledge of heavy machinery and tie manner of moving tie same; and tiat there was nothing in tie testimony to suggest incompetence, or impropriety in selecting him to unload tie machine. Held, tiat tie evidence was insufficient to show tiat tie foreman was incompetent for the work or tiat tie master was negligent in placing tie foreman in charge of tie work.</p> <p>4. One in ciarge of the entire business of a master as general manager is a vice-principal.</p> <p>5. Where, prior to an accident causing tie death of a servant, a general manager of a master arrived on tie ground while servants were employed in unloading a ieavy machine from a freight car according to plans formulated by a foreman in ciarge, and assumed ciarge of tie work, tie master is chargeable with iis knowledge and approval of tie manner tie work was done tie same as if tie manager iad laid out tie plan for tie work at tie outset, and cannot escape responsibility for what occurred upon tie plea tiat tie negligence was tiat of a foreman — a fellow-servant.</p> <p>6. In such case tie general manager, being chargeable with superior knowledge, when ie saw tie impropriety of moving tie machine without some efficient means to insure against tie tipping over which caused tie servant’s death, should eitier have stopped further progress until tie proper remedy was applied, or have notified tie servant of tie danger, and, failing so to do, tie question of whether there was' actionable fault in those regards, ' or whether such danger as existed in tie manner of doing tie work adopted was open and obvious to an ordinary man, so tiat tie servant and tie master stood on tie same plane, were questions for tie jury.</p> <p>7. In an action for tie negligent killing of a servant, under tie evidence, stated in tie opinion, tie jury is held to have iad nothing to guide it-except merest conjecture as to how the accident happened, and that therefore there was no efficient basis for a verdict.</p> <p>8. In an action for the death of a servant, happening while unloading a heavy machine from a freight car, it is error to allow opinion evidence as to whether the manner of moving the machine was proper. Such evidence is held to have invaded the province of the jury.</p> <p>9. Opinion evidence, proper to he given as to the very point the jury is to decide, is confined to cases where such point is clearly within the field of expert evidence and the opinions offered are based on undisputed facts, or assumed facts warranted by the record.</p> <p>10. The rule allowing opinion evidence as to whether a particular situation is perilous does not extend beyond those situations where the jury, after having all the facts presented to them as clearly as practicable, cannot form an opinion which is as reliable as that of an expert.</p> <p>11. The scope of expert evidence is not restricted to the field of “science, art, or skill,” technically speaking, but extends to every subject 'in respect to which one may derive, by experience, special and peculiar knowledge.</p> <p>12. When evidence is excluded because the subject of inquiry is a matter of common knowledge, the real reason for the exclusion is that it is not expert evidence at all.</p> <p>13. The question of the admissibility of expert evidence as it arises in practice is in the field of competency, and hence the ruling of the trial court thereon, in any case, should not be disturbed except where it appears to be erroneous.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaus kee county: OeeeN T. Williams, Circuit Judge.</p> <p>Plaintiff alleges tbat be loaned and advanced defendant tbe sum of $1,000 and tbat defendant agreed to repay tbe sum on demand. He claims tbat demand bas been made and tbat no part of tbe sum bas been paid. Defendant denies tbat a loan was ever made, and alleges tbat be conveyed certain real estate to tbe plaintiff in consideration of tbe $1,000. He further alleges tbat the deed was executed and delivered upon an express agreement in writing tbat upon repayment of tbe sum, and provided be bad paid tbe taxes levied on tbe property, be might demand a reconveyance, but that in case of failure to pay such taxes then tbe contract was to be null and void. He alleges that be bas not paid tbe taxes and tbat tbe right to demand a reconveyance no longer exists, and be asserts tbat plaintiff bas not offered to reeonvey. Tbe evidence on tbe trial shows tbat all of tbe transactions involved took place on Sunday, including the delivery of tbe check for $1,000, tbe signing and delivery of tbe written agreement, and tbe delivery of tbe deed. Tbe only act not positively shown to have taken place on Sunday refers to tbe acknowledgment and tbe recording of tbe deed, and this is left in uncertainty by tbe statements of tbe plaintiff. At tbe conclusion of plaintiff’s evidence defendant’s motion for a nonsuit was granted by tbe court. A motion for a new trial was denied, and judgment for costs was rendered for defendant. Tbis is an appeal from such, judgment.</p>

<p> Loans payable on demand: Accrual of cause of action: Estates of decedents: Claims: Filing: Statutes of nonclaim: Limitation of actions: Husband a/nd wife: Appeal and error: Findings. </p> <p>1. A cause of action accrues where there exists a claim capable of present enforcement, a suable party against whom it may be-enforced, and a party who has a present right to enforce it.</p> <p>2. A cause of action to recover for money loaned, payable upon demand, accrues at the time of the loan.</p> <p>3. Where a wife, one year prior to her death, loaned her husband money payable on demand, her rights thereunder against the-husband accrued prior to her death and passed to her estate as-a valid and existing cause of action.</p> <p>4. In such case, the husband having died subsequent to the death of his wife, the estate of the wife is “a creditor of” and “a person having a claim against” his estate, within the calls of the statutes governing the administration of estates of decedents.</p> <p>5. In such case the representative of the wife’s estate having failed-to filé such claim against the husband’s estate for more than two years after the time limited Ijy the proper county court under sec. 3840, Stats. 1898, the claim is barred under the provisions-of sec. 3844, Stats. 1898.</p> <p>6. Such bar is not affected by the fact that there has been an unsuccessful attempt, by a son of the wife, to have a trust declared as to the same claim for the amount thereof against the husband’s estate, which was defeated on the ground that.no trust existed, although the son, as her heir, might profit by the recovery, since that was a different cause of action and prosecuted in a different right.</p> <p>7. The filing of á claim by the administratrix of a deceased wife against the estate of the husband for money loaned by the wife-to the husband is not an action between the wife and husband, and does not prevent the operation of sec. 3844, Stats. 1898, that section containing no specific exemption in favor of married women.</p> <p>8. Where the trial court has refused to find that any fraud existed, and there is nothing in the record which would entitle the party alleging fraud to relief on that ground, the action of the court will not be disturbed.</p>

<p> Guardian and, ward: Collection and disposition of ward’s funds: Employment of attorney: Interest, from what date computed: Discretion: Trial: Stipulation as to evidence: Lodging and personal service by guardian to ward: Accounting: Annual rests: Appeal: Prejudicial error: Costs. </p> <p>1. It is the duty of a guardian, as trustee of the funds of his ward, on receiving such funds, to keep them for his ward, and to invest so much of them as Is not required for immediate and necessary use as soon as he can do so with reasonable diligence.</p> <p>2. In performing such duty he can employ an attorney to collect the ward’s funds, hut when the guardian has received them the functions of the attorney are ended, and if the guardian then places the funds in the attorney’s hands to invest, the attorney becomes simply an agent to whom the guardian has delegated his duties as trustee.</p> <p>3. Where a guardian employed an attorney to collect his ward’s estate, and the amounts so collected were represented by checks or drafts payable to the guardian, which the guardian indorsed and handed hack to the attorney for investment, and the attorney afterwards defaulted, on an accounting the guardian is properly charged with such amounts.</p> <p>i. In such case when the drafts came to the guardian’s hands he came into the possession of so much of his ward’s estate, and his personal duty to manage that part of the ward’s estate then began.</p> <p>5. The question as to the time from which a guardian shall he charged with interest on the funds of his ward, lost through the negligence of the guardian, is a matter resting in the sound discretion of the trial court in view of all the facts.</p> <p>6. Where a guardian had neglected his duty as to his ward’s funds and made no attempt to invest them, it is no abuse of discretion to charge the guardian with interest thereon, commencing two months from the receipt of part of the funds and three months upon the balance.</p> <p>7. Where no application is made to the trial court to be relieved from a stipulation that a guardian received a sum of money belonging to his ward at an agreed date, and that no testimony should be received in conflict with the i stipulation, it must be held to control on appeal.</p> <p>8. Where a guardian voluntarily stood in Xoco parentis to his wards and never intended to charge them anything for lodging or personal services, on an accounting neither the guardian nor his surety has any right to credit therefor.</p> <p>9. In an accounting by a guardian annual rests should be made, the amounts expended for the preceding year deducted, and interest computed on the balance up to the next annual rest; but where the method adopted was more favorable to the guardian — in allowing him interest on his disbursements from a period midway between the time of his appointment and the time of his resignation, — it is not prejudicial error on the guardian’s appeal.</p> <p>10.In an action by a successor guardian to compel the former guard- . ian to account, it is not error to allow costs against a surety who appeared in and defended the action.</p>

<p> Paupers: Contagious diseases: Liability of county: Statutes: “Proper board of health.” </p> <p>1. Plaintiff being possessed of a boarding bouse and business, one of ber patrons was taken sick with smallpox, and berself, family, and other boarders quarantined by tbe city authorities. Shortly thereafter the city authorities refused to further care for the patient,' and turned the matter over to the duly authorized poor agent of the defendant county, who continued the quarantine. Plaintiff brought this action for the value of her property used up or rendered worthless, the value of the use of her premises and belongings, injury to her health and that of her daughter, and the value of services rendered in taking care of the sick.</p> <p> Held: </p> <p>(1) Principles of natural justice, of themselves, are insuffi- • cient to create such a liability against the county.</p> <p>(2) There is no common-law liability of counties to care for the poor, or to conserve the public welfare by preventing the spread of contagious or other diseases, or caring for those affected therewith.</p> <p>(3) Counties have no power whatever except such as is derived from the written law.</p> <p>(4) There is no statute imposing the duty on counties, primarily or otherwise, to take charge of and care for persons because of their being afflicted with contagious diseases.</p> <p>(5) No cause of action existed in favor of plaintiff.</p> <p>2. Under sec. 1416, Stats. 1898 (providing that, when any person shall be infected with smallpox, the proper board of health may immediately cause him to be removed to a separate house, if that can be done without danger to his health, and otherwise shall make provision for him in the house where he may be, and take such other measures as they may deem necessary for the safety of the inhabitants, and in either case they shall provide for him nurses and necessaries), there is no other public liability than that of the particular municipality where the necessity arises for action in caring for persons so affected with a contagious disease.</p> <p>3. The term “proper board of health” as used in sec. 1416, Stats. 1898, plainly restricts the liability to the particular municipality where the person suffering from a contagious disease is located, since there is no statute providing for county boards of health.</p>

<p> Guardian and ward: Discharge of guardian by majority of ward: Limitation of actions: Liability of sureties on guardian’s bond: Statutes: Oonstruction: “Under any legal disability to suef’ Appeal from county court: Stay of proceedings. </p> <p>1. Under sec. 3968, Stats. 1898 (providing, among otter tilings, that no action stall be maintained against the sureties on any bond given by a guardian unless commenced within four years from the time when the guardian stall tave been discharged), the guardian is discharged, within the meaning of the statute, when the ward attains his majority, and the fact that the same person is also guardian of other minors, although appointed such hy the same order, and the performance of his duties secured hy the same bond, is no obstacle to such discharge.</p> <p>2. Sec. 3968, Stats. 1898, is peculiar in that it adopts, as a date for the commencement of the limitation period, the discharge of the guardian and fixes an arbitrary term of four years thereafter; and hence, while it may be a preliminary to any right to sue on a guardian’s bond that an accounting must be had in the county court and the breach of the bond established, such full accrual of the cause of action is not necessary before the limitation commences to run.</p> <p>3. Whether, in yiew of the possibility that a hearing upon a guardian’s account may be protracted, against the control of the minor, to or beyond the period of the limitation provided in sec. 3968, Stats. 1898, there ought to be some exception made so as to assure adequate opportunity to sue thereafter, is a question for the legislature, but in its absence it cannot be construed into the statute by the court.</p> <p>4. The provisions of sec. 3968, Stats. 1898 (requiring actions against sureties on a guardian’s bond to be commenced within four years from the time when the guardian shall have been discharged), apply to bonds given under sec. 4004, on sale of the ward’s real estate, since the words of sec. 3968, “on any bond given by a guardian,” are too plain to permit of construction other than according to their literal effect.</p> <p>5. Where the operation of sec. 3968, Stats. 1898, allowed a ward only thirty-four days after the termination of the accounting proceedings in which to bring actions against the sureties on the guardian’s bond, no question of the reasonableness of the statute is presented by a record showing that the ward had allowed substantially one half of the statutory four years to elapse before instituting the proceedings for the settlement of the guardian’s account</p> <p>6. Under sec. 3968, Stats. 1898 (providing that no action shall be maintained against the sureties on any bond given by a guardian unless it be commenced within four years from the time when the guardian shall have been discharged; and that if, at the time of such discharge, the person entitled to bring such action shall be under any legal disability to sue, the action may be commenced at any time within four years after such disability shall be removed), the want of legal capacity to sue refers to some characteristic of the person disqualifying him in some degree from acting freely for the protection of his rights, not to an impediment to the maintenance of the particular cause of action.</p> <p>7. Under sec. 3968, Stats. 1898, the settlement oí a guardian’s accounts before action against the sureties is not a disability attributable to any personal peculiarity of the ward; it is an obstacle to the maintenance of the action applicable to all persons alike, and does not extend to mere incompleteness of the cause of action.</p> <p>8. Under the provisions of sec. 4036, Stats. 1898 (that upon appeal from the county court “all further proceedings in pursuance of the act appealed from shall cease”), an appeal to the circuit court from an order of the county court settling the account of a guardian and fixing the amount due the ward does not serve to stay the institution of suit in the circuit court on the bond, but merely further proceedings in the county court in pursuance of the order appealed from.</p>

<p> Wills: Actions for construction: Costs: Attorney's fee: Allowance to teneficiaries: Statutes: Construction. </p> <p>1. In an action brought for the construction of a will the court has no authority to make an allowance out of the estate for fees of the attorney of the beneficiaries under the will in addition to taxable costs.</p> <p>2. An action to construe a will is not a contest arising upon an application for the probate of a will, and the allowance authorized by ch. 397, Laws of 1901 (providing that any court of record, in contests arising therein, upon application for the probate of any will, in its discretion may allow to the proponent of such will a reasonable attorney’s fee, to be paid out of the estate of the decedent, and may also, in its discretion, allow to the contestant, if successful in the circuit court, a reasonable attorney’s fee, out of said estate, for services in such contest in said circuit court), is strictly limited to “contests arising therein, upon application for the probate of any will.”</p>

<p> Highways: Establishment: Proceedings: Promises of private aid in construction: Public policy. </p> <p>1. Highways are only to he laid out when the public good will thereby be promoted, and private considerations or inducements cannot rightly enter into the question in any degree.</p> <p>2. Bargains with public officers who are exercising the important and sovereign power of laying out highways, and the offer of inducements of any kind tending to influence their free action, are not only void as against public policy, but official action based thereon ceases to, be based solely upon the public welfare and becomes tainted with some degree of private interest.</p> <p>3. In proceedings before commissioners appointed by the county judge to review the decision of the town supervisors denying an application to lay out a highway, the commissioners met, and two were in favor of laying out the highway and one opposed. D., a person interested in the establishment of the highway, having been called in and asked if he would grade the piece of new road and build a bridge at his own expense, agreed to do so, and gave a bond to the commissioners binding himself to do such acts, conditioned that if he failed to do so the road should not be laid out or opened. Thereupon the commissioners unanimously decided to lay out the highway as prayed, and filed their written decision to that effect, accompanied by the bond. Held:</p> <p>(1) The decision of the commissioners was conclusively shown to have been, in part, based upon the fact that the bond had been given, and was void.</p> <p>(2) It did not avail the validity of the proceeding that a majority of the commissioners testified that they would have decided to lay out the highway had the bond not been given.</p> <p>t. In such situation there is safety only in the entire prohibition of such transactions.</p>

Emer Gertsen died testate at ber borne in Cheyenne county, Nebraska, leaving property there and in Grant county, Wisconsin. Sbe left a husband, who was ber sole beneficiary, and two grandchildren, Albert and Charles Edwards, who were interested in ber estate contingent upon tbe validity of tbe will. They were never residents of Nebraska.

J. Eruit, Circuit Judge. The complaint alleges and the court found that plaintiffs were induced to buy defendant’s farm by reason of the latter’s misrepresentation that the same contained 147 acres, of which ninety-one acres were under plow and cultivation and sixty acres thereof were clay loam, whereas the farm in fact contained only 127 acres, of which only seventy-eight acres were under cultivation and about forty acres were clay loam, on which representations plaintiffs…

J. Feuit, Circuit Judge. This is an action to recover on a policy of life insurance issued on the 7th day of August, 1894. Bertie Stevens, upon whose life the policy was issued, died April 28, 1904. The evidence showed that the insured, from the 20th day of January, 1904, until two days before his death, worked for his board and lodging for one Henry Miner, the proprietor of a restaurant. The owner of the restaurant also conducted a saloon business in an adjoining building.

J. Feuit, Circuit Judge. This action was brought for a construction of the will of Mary J. Paulson, of Cashton, Monroe county, Wisconsin, which reads as follows: “First. After the payment of my just debts, funeral charges, and expenses of administration, I hereby give and bequeath to the Norwegian Home and Foreign Missionary Association the sum of four hundred ($400) dollars, to be paid by the executrix hereof in four equal annual payments. “Second.

<p> Bale of articles Known to the trade: Implied warranty: Express war~ ranty: Evidence. </p> <p>1. Where one contracts for a known specified and described article — as a Northwestern cream separator — which is a known article of manufacture in the trade, and receives that article, there is no implied warranty of fitness for any purpose, and, if the purchaser obtains no express warranty, he assumes the risk of fitness.</p> <p>2. Where an express warranty of workmanship and material is given, it excludes an implied warranty of fitness, and hence testimony offered tending to show unfitness is properly rejected.</p>

J. Esuit, Circuit Judge. Tbe complaint was in form to recover on a promissory note beld by a receiver of a private bank. Defendant, for a first defense, pleaded that a chattel mortgage, given to secure tbe note, came therewith to tbe possession of the receiver; that thereunder be took tbe property described therein January 1, 1903, and in April, 1.904, sold tbe same without public notice, whereby, under sec. 2316a, Stats. 1898, both tbe note and mortgage became extinguished.

M. Webb, Judge. This is an appeal from final judgment entered in the same case considered by this court in 117 Wis. 170, 94 N. W. 55.

W. Bukkell, Circuit Judge. The appellant is an electric railway company operating a street railway from a point near Electric Park in the town of Black Wolf, Winnebago county, Wisconsin, about one and one-half miles south of the city limits of the city of Oshkosh, thence northerly to the city of Oshkosh, through said city and Winnebago county to the city of Neenah.

Appeals from judgments of tbe circuit court for Milwaukee county: LaweeNce W. Halsey, Circuit Judge. Tbe two actions above named, tbe first by way of garnishment and- tbe second by way of creditors’ bill to reach non-leviable assets, were consolidated for tbe purposes of trial, and from a judgment in favor of the plaintiff in each action tbe defendant TJmbreit appeals.

<p>Incorporation of villages: Appeal and error: Appealable orders: Certiorari: When writ does not-lie.</p> <p>1. An order incorporating a village under secs. 854-866, Stats. 1898, is a final order made in a special proceeding, and lienee appeal-able.</p> <p>2. An appeal from an order incorporating a village under secs. 854-866, Stats. 1898, is an adequate remedy, and lienee certiorari will not lie to review sucIl an order.</p>